Filed 7/17/14 Robertson v. Robertson CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

DAVID ROBERTSON,
Plaintiff and Respondent,

v. WILLIAM ROBERTSON et al.,
Defendants and Appellants. B246472
(Los Angeles County Super. Ct. No. VC057513)

APPEAL from a judgment of the Superior Court of Los Angeles County. Patrick
T. Meyers, Judge. Affirmed.
Stanley D. Bowman for Defendants and Appellants.

John Frank Davis for Pl aintiff and Respondent.

* * * * * * * *2 Following a bench trial, the trial court en tered judgment in favor of plaintiff and respondent David Robertson (David) and against defendan ts and appellants William Robertson (William) and St anley Bowman (Bowman) (sometimes collectively appellants). 1 David had filed a complaint agains t appellants after William, who was the
executor of their moth er’s estate and represented by attorney Bowman , personally acquired the estate’s primary asset without Da vid’s knowledge. Following a bench trial,
the trial court ruled that William breached hi s fiduciary duty and co nverted funds derived from the asset, and Bowman acted below the standard of care. It awarded damages totaling $723,139. 16 and imposed a constructive trus t over property William purchased with funds generated from th e sale of estate property. We affirm. The trial court properly ex ercised its discretion to judicially notice records from related cases and, in any event, appellants were not pr ejudiced by the trial
court’s consideration of those records. Su bstantial evidence supported the trial court’s findings on the causes of action for breach of fiduciary duty an d conversion against William, and negligence against Bowman. Fi nally, the trial court properly determined that appellants’ failure to co mply with the statutory require ments for alleging the statute
of limitations as a bar constituted a waiver of that affirmative defense.
FACTUAL AND PROCED URAL BACKGROUND Nona Victoria Robertson (Nona) died te state in August 1995. Nona’s sons and
sole heirs were David and William. At the time of her death, she owned certain real property, including a residence located at 11356 Oklahoma Aven ue in South Gate, California (South Gate property ). William had lived with her at the South Gate property and contributed to the mortgage payments a nd property taxes. The mortgage was current at the time of Nona’s death. According to her will, each ofher sons was to inherit onehalf of her estate (Estate), and Willia m was to be the Estate’s executor. In November 1987, Nona had executed a de ed of trust on the South Gate property. Before Nona died, William and David had a conversation in which David indicated he

1 We employ first names solely for clarity’s sake, meaning no disrespect.3 did not want William’s personal household pr oblems to affect his own household. After she died, William fell behind in the payments on the loan secu red by the deed of trust; he was also a party to the loan. A notice of default and election to sell was recorded in August 1996, and at that tim e the amount of the unpaid obligation was approximately $55,500. William claimed he first received notice in January 1997 th at the mortgage on the South Gate property was in arrears. A tr ustee’s sale under a deed of trust was initially scheduled for February 1997. Seeking a ssistance to prevent foreclosure, William retained Bowman, who indicated that he was unsuccessful in his efforts to help William obtain a loan to pay off the arrearage. At Bowman’s direction, in June 1997, for the purpose of preventing the trustee’s sale fro m going forward, William filed for bankruptcy protection under chapter 13 of the Bankruptcy Code; the trustee’s sale was taken off calendar due to the bankruptcy. Though th e bankruptcy initially operated to stay the trustee’s sale, the plan under chapter 13 was not confirmed, and William voluntarily converted to a chapter 7 bankruptcy. In July 1997, on William’s behalf Bowman filed a petition for probate of Nona’s will and for letters of administration (Probate action). William requested that the will be admitted into probate, that he be appointed executor of the Estate, that he be granted full authority under the Independent Administra tion of Estates Act (IA EA) and that no bond be required. Following a November 1997 hearing, the probate court appointed William as the executor of the Estate, subject to the requirement that a surety bond in the amount of $172,000—the value of th e assets identified in the Estate—be posted. William thereafter posted the bond and the probate cour t issued letters testam entary that the will had been proven, and it fully au thorized William to act as th e Estate’s executor under the
IAEA. Having received a copy of the Probate action petition, in early April 1998, David filed and served a special notice that describe d him as a person interested in the Probate action and requested that he receive special no tice of matters in the Probate action. The special notice provided his home address where he had resided for 40 years. Thereafter, no activity occurred in the Probate action fo r approximately 12 years, including that no4 notice was provided to David concerning the So uth Gate property or any other aspect of
the Probate action. William’s bankruptcy was discharged in March 1998. According to William, he attempted to refinance the loan on the South Gate property bu t was unable to do so while in bankruptcy. On April 13, 1998, Diego C obo acquired the South Gate property at a foreclosure sale for a purchase price of $ 107,625. At that time, $63,347.64 remained owing against the South Gate property. Un der typical circumstances, the approximate $44,000 over the amount owing would be return ed to the foreclosed property’s owner. After William was appointed executor, ne ither he nor Bowman took any steps to obtain financial assistance to prevent th e foreclosure even though William knew the amount owing was approximately $60,000 and kn ew the South Gate property was worth more than that; they never contacted David or sought financial help from him, nor did they contact the lender. Had David known that the South Gate property was facing foreclosure because of a $60, 000 unpaid debt, he would have purchased the home or made some type of arrangement with William to get the property out of foreclosure. But instead, in May 1998, William, in his capacity as the executor of the Estate and still represented by Bowman, commenced an action to quiet title and for declaratory relief against Cobo, Fairbanks Cap ital Corporation and Wes Pac Reconveyance, Inc. (Cobo action), seeking to set aside the foreclosur e sale. William did not identify the Probate action as a related case. In the Cobo action, William also filed an ex parte application for a restraining order to preclude Cobo from fili ng an unlawful detainer action. Cobo and William later stipulated that a temporary restra ining order could remain in effect so long as William paid rent in the amount of $1,000 per month. The Cobo action parties engaged in medi ation in March 1999 and a mandatory settlement conference in September 1999. A minute order entered following the
settlement conference stated that the case sett led. In exchange fo r William’s payment of a 10 percent premium above wh at Cobo had paid for the pr operty, Cobo conveyed the South Gate property to Willia m in October 1999, and Bowman dismisse d the Cobo action in January 2000. William borrowed approx imately $10,000 from a friend and obtained a5 loan in his own name to eff ect the settlement. Comparable sales of homes showed the South Gate property had a value somewhere between $180,000 and $200,000 at the time
of the settlement. Bowman attributed the di smissal to his determination that the action
had little merit and would be ex pensive to take to trial. William denied telling Bowman
about the settlement and denied knowledge of the dismissal. Though William was aware he had initiate d the Cobo action on behalf of the Estate in his capacity as the executor, “at some later time” he negotiated the settlement with Cobo individually, on his own behalf. When William was negotiating with Cobo individually, it did not occur to him that he owed any duty to th e Estate. The deed transferring the South Gate property was ma de out to “Bill Robertson, an unmarried man” and identified the transfer as a gift. William did not believe it was necessary to report to the court in the Probate action that he had lost the Estate’s primary asset and acquired it in his own name. Though he de nied there was a set tlement of the Cobo action, Bowman acknowl edged he was aware that William and Cobo had agreed between themselves for William’s purchase of the Sout h Gate property. Bowman did not believe the Estate had the capacity to tender a suffi cient amount to obta in the property from
Cobo. In the meantime, in a January 1999 filing, Wes Pac indicated it held approximately $42,000 in surplus funds fro m the foreclosure of the So uth Gate property and had
contacted William’s attorn ey to inform him of the funds, and it expressed concern that the Estate could lose those pro ceeds in the course of litigati on. Accordingly, it had filed an interpleader action (Wes Pac action) and served all claimants, including the Internal Revenue Service which had removed the interplead er action to federal court. An order in that action, prepared by Bo wman, directed payment of approximately $39,617.80 to
William as the executor of the Estate. When William receiv ed the funds, he reported their receipt to Bowman and deposited them into his pers onal account. He thought the funds might have come from the sale of the South Gate property. In October 2006, William purchased a resi dence located at 13881 Truman Avenue in Hesperia (Hesperia property). To financ e the purchase, he borrowed $306,300 secured6 by a deed of trust on the Hesperia property . On November 2, 2007, William conveyed
his interest in the South Gate property to himself and his wife Wanida Robertson, and on the same day they sold the So uth Gate property for $545,000 less existing encumbrances. William had made several improvements to th e South Gate property before its sale. Using the funds obtained from th at sale, William thereafter pa id off the loan against the Hesperia property. In July 2010, David move d in the Probate action to suspend William’s powers and remove him as executor; he also filed a pe tition for probate of the will, for letters testamentary and for his appointment as a successor executor. In August 2010, David and William stipulated to William’s resignation as executor and to David’s nomination as successor executor. The probate court thereafter appointed David as the successor
executor in the Pr obate action and waived bond.
The Instant Action. Pleadings. David, in his capacity as executor of th e Estate and individually, filed a complaint against appellants in November 2010, alleging claims for breach of fiduciary duty, conversion, unjust enrichment and constr uctive trust against William and negligence against Bowman. On behalf of the Estate, he sought damages equal to the value of the real property plus reasonable rental income and one-half of that amount on his own behalf. He also sought an accounting, im position of a construc tive trust and punitive damages. William generally denied the allega tions and raised four affirmative defenses,
and Bowman demurred. After the trial court overruled the demurrer, Bowman, too, generally denied the allegations.
Trial.
Trial commenced in March 2 012. The parties stipulated to a number of facts as
well as to the admission of several exhibits. David called as witnesses Bowman, certified appraiser Tyler Adams, William and probate a ttorney Michael Gertner The trial court also took judicial notice of the records in the Cobo action. Testifying as an expert on David’s behalf, Gertner opined: “It seems en tirely inappropriate to file an action on7 behalf of an executor and after the action is concluded to have the result passed to the
benefit of an individual rather than the execut or of the estate.” He stated that, at a minimum, David should have received noti ce of the proposed transaction and be provided an opportunity to object or cure th e default. He further opined that Bowman’s conduct fell below the applicable standard of care for an atto rney given that the Estate’s property became that of th e executor individually. On the second day of tria l, David moved for leave to file a first amended complaint to conform to proo f, seeking to add a cause of action for negligence against William alleging that he negligently failed to protect the South Gate property from foreclosure while acting in his fiduciary capac ity as the Estate’s executor and to add a paragraph describing the same facts as an additional basis for his existing negligence cause of action against Bowman. William and Bowman opposed the mo tion. In an April 5, 2012 order, the trial court granted the mo tion, finding the additional allegations were based on the facts already a lleged and did not ra ise any new or subs tantially different issue. Without seeking leave of court, W illiam answered the first amended complaint, adding several affirmative defenses to his gene ral denial, and the trial court later struck
the answer.
Statement of Decision. Following its receipt of written closing ar guments, the trial court filed an 80-page
statement of decision in October 2012. 2 It based its findings in large part on the relative credibility of the witnesses a nd exhibits, explaining “[c]redi bility determinations with respect to witness testimony and related documen tary evidence have a significant bearing on the resolution by the trier of fact of th e issues raised by the parties’ respective pleadings.”

2 Appellants filed objections to a proposed statement of decision, and although they designated those objections as pa rt of the record on appeal, th ey were not made a part of the clerk’s transcript. Only the trial c ourt’s minute order overruling those objections appears in the record. An appellant bears the burden of providing an adequate record to support the claims on appeal. ( Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296; Ballard v. Uribe (1986) 41 Cal.3d 564, 574.)8 In connection with the first cause of acti on for breach of fiduciary duty against William, the trial court ruled: “The weight of the evidence has co mpellingly showed that [William]’s alleged capacity as executor of th eir mother’s estate wa s essentially nothing but a pose. [William] plainly did not perform his fiduciary duties as executor of their mother’s estate in any significant respect. Such denomination as executor of their mother’s estate only served to cloak [Willia m]’s self-dealing and other pursuits in his
own self-interests.” It found that W illiam’s failure to engage in any conduct meaningfully designed to prevent foreclosure, his failure to provid e any notice to David and his personal acquisition of th e Estate’s most significant asset were among the actions establishing a breach of fiduc iary duty and further showin g that such breach was a substantial factor causing harm to the Estate and to David’s interest therein. The trial
court further ruled that clear and convinci ng evidence established William’s conduct as the Estate executor was despicab le and done with a knowing and willful disregard of both the Estate’s and David’s rights. Summarizing William’s conduct from the time of his mother’s death to the sale of the South Gate property, the trial court furt her ruled David had esta blished the elements
of the second cause of action for conversion and the third cause of action for unjust
enrichment. The trial court characterize d the evidence as s howing: “[William] vindicated solely his own fixated and sel f-dealing objectives of possessing, controlling and owning the subject property for himself al one and not for any pur pose(s) professed in his pleading therein of acting on behalf of th eir mother’s estate and in his capacity as
executor of such estate . [Citation.] The evidence and reasonable inferences therefrom give rise to the compelling inference that [William] engaged in a continuum of conduct dedicated to achieving the fore going objectives to the detrim ent of and damage to their mother’s estate and to [David ’s] tangible interest as a bene ficiary under their mother’s will.” It awarded damages in the amount of the South Gate property’s sales price, less amounts owing, plus prejudgment interest; it specified, however, that the award was not in addition to any award under the first cause of action. The trial court further found that9 the remedy of the imposition of a construc tive trust over the Hesp eria property was appropriate to the extent of the damage s awarded under other causes of action. Finally, the trial court ruled that David had satisfied his burden to show that Bowman was negligent as alleged in the sixth ca use of action. It cited as some examples of Bowman’s negligence his drafting an order in the name of the Estate that permitted the release of the interpleader funds to William personally, fa iling to report William’s receipt of those funds to the probate court, failing to provide notice to David of the foreclosure and failing to take meaningful steps to help prevent foreclosure. It found that Bowman significantly enabled William’s sel f-dealing to the detriment of the Estate. The trial court
further found the evidence established that Da vid “(along with the probate court) was not approached because [William] assisted by Bowman were engaged in the deliberate course of concealing their conduct from the plai ntiff and the probate court. In the court’s view, [David] has proved more likely true th an not true that the loss of the subject property from their mother’s estate was ca used by Bowman’s lega l negligence in failing to obtain readily available financial and ot her assistance from [David] on behalf of the estate and of [David’s] interests as a benefici ary. Such recourse to [David’s] financial
abilities and resources constituted the ‘more favor able result’ that w ould have saved or bailed out the subject property but for Bowman’s negligence. [Citation.]” As to the first through fourth and sixth causes of action, the trial court rejected appellants’ claim that the applicable statutes of limitations operate d as a bar. It ruled appellants waived the defense by failing to plead it in accordance with Code of Civil Procedure section 458. In any event, it furt her determined that Da vid’s claims did not
accrue until November 2007 when William sold the South Gate property to a third party and took the proceeds for hims elf. The November 2010 co mplaint was therefore filed within both the four-year limita tions period for breach of fiduciary duty provided by
Code of Civil Procedure section 343 and th e three-year limitations period for conversion and constructive trust provide d by Code of Civil Procedur e section 338, subdivision (c)(1). But it ruled the newly-added fifth ca use of action for negligence was barred by the two-year limitations period in Code of Civil Procedure section 335.1, and granted10 William’s motion for judgment under Code of Civil Procedure sec tion 631.8 on that
claim. Judgment and Appeal. In November 2012, the trial court entere d judgment for David, on behalf of the Estate, ordering that he rec over $723,139.16 ($481,652.36 in economic damages plus $241,486.80 in prejudgment in terest) from William on the first cause of action for breach of fiduciary duty, $706,623.17 ($470,652.17 in economic da mages plus $235,970.81 in prejudgment interest) on the second cause of action for conversion, the same amounts on
the third cause of action for un just enrichment, and nothing on the fifth cause of action for negligence; it imposed a constructive trus t against the Hesperia property under the
fourth cause of action. It further awar ded David $18,50 0 in punitive damages against William. As to Bowman, it aw arded David damages in the of $470,652.36 on the sixth cause of action for negligence, specifying that such recovery was en compassed within the damages imposed against William, and theref ore William and Bowman were jointly and severally liable for such amount. Appellants appealed from the judgment.
DISCUSSION Appellants raise several related challenges to the judgment, incl uding that the trial court erroneously relied on documents filed in other actions that were not admitted as exhibits at trial, substantial evidence did not support any of the trial court’s findings and
the statute of limitations barred David’s clai ms. We find each challenge lacks merit.
I. The Trial Court’s Cons ideration of Records in Related Cases Affords No
Basis for Reversal. A court may take judicial notice of the reco rds of any court of this state. (Evid. Code, § 452, subd. (d)(1).) In its statement of decision, the trial court stated that it took judicial notice, sua sponte, of the records in the Wes Pac action and it referenced several pleadings and orders filed in the Probate action and the Cobo action that were not otherwise exhibits at trial or the subject of a judicial notice request. Appellants assert the trial court failed to comply w ith Evidence Code section 455, which requires the court to11 provide the parties an o pportunity to be heard when it proposes to take judicial notice of a
mater “that is of substan tial consequence to the dete rmination of that action.” 3 (See Estate of Russell (1971) 17 Cal.App.3d 758, 765 [trial court took notice of documents in
court records on own motion without afford ing “the party adversely affected, an opportunity to present information as to the propriety of taking judicial notice either
before the cause was submitted for decision or upon a reopening of the case for such purpose”].) We review the tria l court’s determination to take judicial notice for an abuse of discretion. (E.g., Fontenot v. Well Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264; In re Social Services Payment Cases (2008) 166 Cal.App.4th 1249, 1271.) As a threshold matter, nothing in the reco rd establishes that appellants objected to
the statement of decision on th is ground below. Accordingly, appellants have forfeited any claim of error concerning the propriety of the trial court’s taking judicial notice of
court records in the statem ent of decision. (E.g., In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1132 [a party who fails to obj ect or assert a claimed deficiency to a
statement of decision in the trial court waiv es the right to assert error on appeal]; Akins v. State of California (1998) 61 Cal.App. 4th 1, 41, fn. 36 [same]; accord, Children’s Hospital & Medical Center v. Bonta (2002) 97 Cal.App.4th 740 , 776 [“‘An appellate court will not consider procedural defects or erroneous rulings wher e an objection could have been, but was not, raised in the court below’”].) Nevertheless, even if we were to cons ider appellants’ claim on the merits, we
would find no abuse of discreti on. On its face, Evidence Code section 455 applies only to matters that are of “substantial consequenc e” to the trial court’s determination of the

3 In relevant part, Evidence Code section 455 provides: “With respect to any matter specified in Section 452 . . . that is of subs tantial consequence to th e determination of the action: [¶] (a) If the trial court has been requeste d to take or has taken or proposes to take judicial notice of such matter, the court sh all afford each party reasonable opportunity, before the jury is inst ructed or before the cause is subm itted for decision by the court, to present to the court information relevant to (1 ) the propriety of taking judicial notice of the matter and (2) the tenor of the matter to be noticed.”12 action. Here, none of the challenged record s was of substantial c onsequence to the trial court’s findings and, therefore, complian ce with Evidence Code section 455 was not required. (See Carroll v. State of California (1990) 217 Cal.App.3d 134, 144 [finding compliance with Evid . Code, § 455 unnecessary where material noticed is not of substantial consequence to the determination of the action].) In the statement of decision, the trial court cited many of the challenged records only by way of background and did not rely on them to support its findings. Those records included David’s request to remove William as executor of the Estate, the stipulation that resulted from that request, trial court minute orders following David’s ap pointment as executor, and pleadings and orders concerning William’s nonappearance in the Probate action. Other records were not of substantial consequence because the ma tters therein were equally established by witness testimony or admitted exhibits, incl uding David’s request for notice in the Probate action, the complaint and answer in the Cobo action, pleadings filed by Wes Pac in the Cobo action concerning the existence of the Wes Pac action, the mediation and
settlement conference in the Co bo action, the absence of any records in the Cobo action showing it was related to the Probate action and the order releasi ng funds to William in the Wes Pac action. Though there was no othe r evidence establishing that Bowman had prepared the order for the release of funds in the Wes Pac acti on, other evidence— including Bowman’s own tes timony—established his negligen ce with respect to that payment. Finally, “[t]he burden is on the appellant in every case affirmatively to show error and to show further that the error is prejudicial . . . .” ( Vaughn v. Jonas (1948) 31 Cal.2d 586, 601.) For the same reasons that Eviden ce Code section 455 was inapplicable, any error in judicially noticing the challenged records was not prejudicial, as it is not reasonably probable the trial court would have reached a di fferent decision without the noticed materials. (See Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 527; Rieger v. Arnold (2002) 104 Cal.App. 4th 451, 467-468; West Valley-Mission Community College Dist. v. Concepcion (1993) 16 Cal.App.4th 1766, 1778.)13 II. Substantial Evidence Supporte d the Trial Court’s Findings. A. Standard of Review. David’s claims for breach of fiduciary duty, conversion and negligence presented questions of fact for the tr ial court to resolve. (See Antower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 15 99 [breach of fiduciary duty]; Lindstrom v. Hertz Corp. (2000) 81 Cal.App.4th 644, 652 [negligence]; Myers v. Stephens (1965) 233 Cal.App.2d 104, 119-120 [conversion].) In addressing those questions, th e trial court expressly relied on its own credibility determinat ions with respect to witne ss testimony and documentary
evidence. Thus, we are governed by the sta ndard of review summarized in Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 765: “‘In general, in reviewing a judgment based upon a statement of decision following a bench trial, “any conflict in the evidence
or reasonable inferences to be drawn from the facts will be resolved in support of the
determination of the trial court decision. [Citations.]” [Citation.] In a substantial evidence challenge to a judgment, the appellate court will “consider all of the evidence in the light most favorable to the prevailing part y, giving it the benefit of every reasonable inference, and resolving conflicts in support of the [findings]. [Citations.]” [Citation.] We may not reweigh the evidence and ar e bound by the tria l court’s credibility determinations. [Citations.] Moreover, findings of fact are liberally construed to support the judgment. [Citation.]’” (Accord, Citizens Business Bank v. Gevorgian (2013) 218 Cal.App.4th 602, 613; Estate of Young (2008) 160 Cal.App.4th 62, 75-76.) Appellants bear the burden of demonstra ting that the record does not contain
sufficient evidence to sustain the challenged findings of fact. ( Foreman & Clark Corp. v.
Fallon (1971) 3 Cal.3d 875, 881; Boeken v. Phillip Morris Inc. (2005) 127 Cal.App.4th 1640, 1658.) B. Breach of Fiduciary Duty.
“An executor ‘“is an officer of the cour t and occupies a fiduciary relation toward all parties having an interest in the estate .”’ [Citations.] ‘“Executors occupy trust relations toward the legatees, and are bound to the utmost good faith in their transactions14 with the beneficiary. . . .”” [Citations.] An executor also b ears a ‘duty to disclose all the facts . . . and to refrain from taking an unfair advantage of [the legatees].’ [Citation.]” ( Estate of Sanders (1985) 40 Cal.3d 607, 61 6.) More specifically, it is the executor’s duty “to collect estate assets and preserve them until distribu tion, to pay claims against the estate including taxes and the charges of administration, and to distribute the residue
to those entitled. He is accountable for all of the decedent’s estate that comes into his possession and is chargeable with the losses resulting from his default or neglect.” ( Estate of Gerber (1977) 73 Cal.App.3d 96, 109.) “The standard of care generally applicable to executors is ‘that degree of pr udence and diligence which a man of ordinary judgment would be expected to bestow u pon his own affairs of a like nature.’ [Citations.]” ( Estate of Beach (1975) 15 Cal.3d 623, 631.) Probate Code section 9600 4
codified the standard set forth in Estate of Beach. ( Estate of Davis (1990) 219 Cal.App.3d 663, 672, fn. 17.) “A primary duty of the executor is to take reasonable steps to preserve the assets of the estate. [Citations.]” ( Estate of Beach, supra, 15 Cal.3d at p. 639.) Following a
detailed recitation of the eviden ce adduced at trial, the trial court ruled that William “did not make any meaningful effort to preserve and protect their mothe r’s estate, especially as to the subject property.” The trial cour t explained that the mortgage payments on the South Gate property were current at the time of Nona’s death, “and the loan delinquency that eventually developed was not comprehensibly attributable to anything or anyone but [William’s] evident inattention and/or indiffe rence to such development.” It found William’s testimony concerning his financial stra its after Nona’s death to be “so strained, sketchy and otherwise lacking in specificity” that it was not credible and failed to amount

4 Probate Code section 9600 provides: “(a) The personal representative has the management and control of the estate and, in managing and controlling the estate, shall use ordinary care and diligen ce. What constitutes ordinary care and diligence is determined by all the circumstances of the particular estate. [¶] (b) The personal representative: [¶] (1) Shall exercise a power to the extent that ordinary care and diligence require that the power be exercised. [¶] (2) Shall not exer cise a power to the extent that ordinary care and diligence re quire that the power not be exercised.”15 to an excuse for his dereliction in duty. It c oncluded that William’s “effo rts, if any, as the purported executor to preserve and protect the subject property as part of their mother’s estate were faint, fleeting and markedly unsupported by any corr oborating documentary evidence, except as to the significant failure of such effort(s).”
The trial court contrasted William’s lack of effort to preserve the South Gate property with his affirmative efforts to prev ent David’s intervention in the probate court so that William could obtain sole ownership a nd legal title to the property. It determined
the evidence showed that W illiam exploited his status as the Estate’s executor in connection with his bankruptcy, in the probate court and in st ate court “to brush over the illegitimate means and ends used by him in maintaining posse ssion, control and eventual ownership of the subject propert y with a patina of purported legitimacy.” The trial court
found that William’s failure to seek approval for any of his actions served to effect his
concealment. It further credited David’s testimony that he was unaware of William’s actions and discredited Bowman’s testimony that he sent a letter to David notifying him
of the foreclosure. Summarizing, the trial court ruled: “The court finds that [David] as executor of their mother’s estate has proved more lik ely true than not that [William] was the appointed executor of th eir mother’s estate; that, as su ch, he owed fiduciary duties of
reasonable care and undivided l oyalty within the meaning of Probate Code 9600 and its decisional progeny to their mo ther’s estate and the benefi ciaries thereunder, including [David]; that he failed to act as a reasonably careful execut or would have acted under the same or similar circumstances, as well as know ingly acted against the interest of their
mother’s estate and the beneficial interest of [David]; that neither their mother’s estate nor [David] gave informed cons ent to [William]’s conduct; that their mother’s estate and [David]’s interest therein as a beneficiary were harmed; that [William]’s conduct was a substantial factor in causing such harm to their mother’s estate and [David]’s interest therein as a beneficiary; and that the estate and/or [David] as executor of their mother’s estate has sustained economic damage.”16 In their challenge to these findings, a ppellants miss the point. They argue that once Cobo purchased the South Gate property th rough a nonjudicial foreclosure sale, the Estate no longer had any interest in the pr operty, and correspondi ngly, William owed no
duties as the Estate’s executor vis-à-vis the property. (See Nguyen v. Calhoun (2003) 105 CalApp.4th 428, 440 [“‘A properly conducte d nonjudicial foreclosure sale constitutes a final adjudication of the rights of the borrower and lender’”].) They ignore that the trial
court concluded William breach ed his duty by facilitating th e foreclosure of the South Gate property, the Estate’s primary asset. In great detail, the trial court described William’s testimony that there was no issue rela tive to the mortgage payments at the time
of Nona’s death. Thereafte r, though William indicated he wa s “okay financially” at that time, he attributed his falling behind in the mortgage payments to “a lack of work,” responding “yeah, you could say that” in answ er to the question whether his workload
declined after Nona’s death. Less than one and one-ha lf years later, William owed approximately $60,000 on the South Gate proper ty. The trial court found significant that William’s testimony he tried to make partial pa yments and tried to refinance the property was unsupported by any credib le evidence. It found equa lly significant that William knew the property was worth more than $60,000, yet never entertained the idea of selling it or contacting anyone, including David, to assist in remedyi ng the default. Substantial evidence supported the trial court’s determin ation that William failed to use reasonable care to preserve the South Gate prope rty for the benefit of the Estate.
Even if we were to evaluate Willia m’s conduct post-foreclosure—as appellants suggest—we would conclude substantial evidence showed W illiam breached his fiduciary duty by settling th e Cobo action for personal gain. As explained in In re Estate of Martin (1999) 72 Cal.App.4th 1438, 1443: Probate Code “[s] ection 9880 provides that ‘[e]xcept as provided in this chapter,’ an executor may ne ither ‘(a) Purchase any property of the estate . . ., directly or indirectly,’ nor ‘(b) Be interested in a ny such purchase.’ This
statute is a codification of th e principle that executors may not deal with themselves, or17 place themselves in a position antagonistic to the estate's beneficiaries. [Citation.]” 5 After Cobo purchased the South Gate proper ty through a nonjudicial foreclosure sale, William brought an action against him in his capacity as the ex ecutor of the Estate. The trial court found significant the inconsiste ncies in William’s testimony concerning the capacity in which he settled the Cobo action, initially stating that he understood he was acting as the executor of the Es tate but then later testifying that he was acting solely in his individual capacity. William answered affi rmatively in response to the question “you
arrived in court with Mr. Bowman for court proceedings knowing yo u were the plaintiff and the executor of your mothe r’s estate, but at some later time that day you believed that you were negotiating with Mr. Cobo on your own behalf, not as the executor of the
estate?” He added it did not occur to him he would have some duty to the Estate at that point. Contrary to appellants’ position, W illiam’s self-dealing in connection with his acquisition of the South Gate property from Cobo cons titutes an indepe ndent basis for concluding he breached his fiduciary duty. (See In re Estate of Martin, supra , 72 Cal.App.4th at p. 1444 [executor breached fi duciary duty where she facilitated sale of shares owned by estate to a corporation in which she was an officer or director].)
C. Conversion. “‘A cause of action for conversion requires allegations of plain tiff’s ownership or right to possession of property; defendant’s wrongful act to ward or disposition of the property, interfering with plaintiff’s possession; and damage to plaintiff. [Citation.]’” ( PCO, Inc. v. Christensen, Miller, Fi nk, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395 ( PCO ).) Money may be the subject of conversion where a specific, identifiable sum is involved. ( Ibid .; see also Certified Grocers of California, Ltd. v. San Gabriel Valley Bank (1983) 150 Cal.App.3d 281, 289 [“ the alleged conversion of money constitutes a tort”].)

5 The Probate Code permits an execut or to petition the probate court for the approval of an estate propert y purchase, but the undisputed evidence established that William never sought approval for any of his actions. ( See Estate of Martin, supra, 72 Cal.App.4th at pp. 1443-1444.)18 The trial court concluded that the evidence satisfied the elemen ts of conversion: David had the right to own or possess his inte rest the South Gate property on behalf of
the Estate as the successor executor under Nona’s will; William’s conduct exposed the property to foreclosure, and his ultimate di sposition of the South Gate property interfered
with David’s interest in th e property; and David suffered damages from the loss of his interest in the property. Accordingly, the trial court found “that [David] has proved more likely true than not true that [he as] successor executor to thei r mother’s estate had a right to control and have the amount of $545,000 .00 derived from the sale of the subject property by [William], the pr edecessor executor, on or about November 2007, less amounts owing against the subject prope rty and approximately $10,000 paid by [William]; that [William] intenti onally and substantially interfered with the control of [David] as successor executor of their mother’s estate and with such executor’s right on behalf of such estate did not consent; that [David] as successor ex ecutor of such estate was harmed; and that [William]’s conduct was a substantial factor in causing harm to the plaintiff as successor executor of such estate, including damages in the amount of $470,652.36.” 6 Appellants renew their specious argumen t that evidence show ing the Estate no longer owned the South Gate property afte r the nonjudicial foreclosure sale somehow obviated any claim of conversion. Again, William’s conduct in failing to preserve the Estate asset and permitting it to fall into fore closure was just one in a series of events forming the conversion element of “a wrongful act or disposition of property rights . . . .” ( Oakdale Village Group v. Fong (1996) 43 Cal.App.4th 539, 543.) The trial court found that William’s exposing the property to foreclos ure was the first step in “a continuum of
conduct” that culminated in the sale of the South Gate property for $545,000, a sum that

6 We note that the trial court expressly determined that funds derived from the sale of the South Gate property—not the property itself—was the subject of conversion. (See Salma v. Capon (2008) 161 Cal.App.4th 1275, 1295 [tort of conversion applies to personal property not real property].)19 should have been under the control of the Estate. Substa ntial evidence su pported the trial court’s conversion finding. D. Negligence. The elements of a legal malpractice claim ar e: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a br each of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.” ( Budd v. Nixen (1971) 6 Cal.3d 195, 200, superseded by statute on an other point as stated in Laird v. Blacker (1992) 2 Cal.4th 606, 615.) The trial court found that David estab lished each requisite element of his cause of action for professional negligence against Bo wman, and substantial evidence supported those findings.
1. Duty. With respect to the first element of duty, the trial court relied on the California Supreme Court’s pronouncement in Borissoff v. Taylor & Faust (2004) 33 Cal.4th 523, 534, that an attorney reta ined by a predecessor fiduciary owes a duty to a successor fiduciary. The court explained “the successo r fiduciary must have standing to sue the predecessor’s attorney if there is to be an effective remedy for legal malpractice that harms estates and trusts administered by succ essor fiduciaries,” noting that “the successor fiduciary’s power to sue for malpractice is no different than the succ essor’s power to sue for nonperformance a person hire d by the predecessor to fix th e roof of a house belonging to the estate.” ( Borissoff v. Taylor & Faust, supra , 33 Cal.4th at pp. 530, 531.) Holding
that the successor administrato r of an estate would be permitted to sue tax counsel retained by the predecessor fiducia ry to perform work for the es tate, the court concluded: “To permit a successor fiduciary to sue an attorney hired by a predecessor to perform legal work for the benefit of the estate, when the attorney’s neglig ent work has harmed the estate, creates no conflict of interest. With respect to matte rs of estate administration, the predecessor and successor fiduciaries’ intere sts are identical: Both have the power20 and duty to obtain competent legal representa tion for the purpose of fairly reporting the estate’s tax liability.” ( Id . at p. 534.) On the basis of this authority, the trial court concluded that Bowman’s duty ran to the Estate and that David, as the successor executor of the Estate, had standing to assert a breach of duty. For this re ason, appellants’ citation to Goldberg v. Frye (1990) 217 Cal.App.3d 1258, 1267 is inap posite, as there the court explained the general principle that an attorney for th e administrator of the estate does not owe a duty to the beneficiary. David alleged that Bowman’s duty was to th e Estate, not to him individually as a beneficiary. In any event, duty to a benefi ciary may be established where, as here, the attorney’s professional negligen ce frustrates the testamentary intent in a legal instrument, and the “beneficiaries clearly de signated by the testator lose th eir legacy as a direct result of such negligence.” ( Ventura County Humane Society v. Holloway (1974) 40 Cal.App.3d 897, 903, italics omitted.)
2. Breach. Second, the evidence show ed that Bowman breached his duty through multiple acts and omissions. Examples of Bowman’s breaches included hi s failure to make a meaningful effort to assist William in obt aining a loan to preven t foreclosure once the bankruptcy was discharged; his failure to cont act David either to provide him with notice of the pending foreclosure—even after David had filed a request for such notice—or to seek his assistance in preserving the South Ga te property for the Estate; his failure to complete or do anything in the Probate action after November 1997; his permitting
William to settle the Cobo ac tion by receiving a benefit fo r himself personally when
Bowman had filed the action on behalf of the Estate; his dismissing the Cobo action while ostensibly claiming he was unaware of the terms of the settlement but admitting he was aware of William’s purchase; his failure to set aside the $40,000 received from the foreclosure for the benefit of the Estate; and hi s failure to report hi s fees to the probate
court. The trial court determined this evid ence showed: “Bowman ignored or otherwise refused to acknowledge the manifest conflic t between [William]’s grasping, overreaching self-dealing as an individual an d his significant fiduciary resp onsibilities to th eir mother’s21 estate and to the plaintiff’s interests as a beneficiary thereunder. Bowman’s legal services were principally devoted to the largely self-dealing di mension of [William]’s purported performance as executor of their mother’s estate.” Appellants argue the trial court ignored evidence showing that Bowman satisfied the applicable duty of care and performed adequa te legal services on behalf of the Estate, including that he attempted to help Willia m get a loan to refinance the South Gate property, he filed William’s bankruptcy acti on to stop the foreclosure and he initiated the action against Cobo after the foreclosure sale . But their argument relies exclusively on evidence favorable to their position. It is well settled that “‘[a]n ap pellant asserting lack
of substantial evidence must fa irly state all the evidence, not just the evidence favorable to the appellant. [Citation.] “[A]n appellant who challenges a factual determination in the trial court—a jury verdict, or a finding by the judge in a nonjury trial—must marshal
all of the record evidence releva nt to the point in question and affirmatively demonstrate its insufficiency to sust ain the challenged finding.” [Citations.]’” ( Chicago Title Ins. Co. v. AMZ Ins. Services, Inc. (2010) 188 Cal.App.4th 401, 415-416; see also McCauley v. Howard Jarvis Taxpayers Assn. (1998) 68 Cal.App.4th 1255, 1266 [“If one is going to make a ‘the-facts-compel-that-I-win-as-a- matter-of-law’ argument, one’s brief must fairly state all the evidence”].) Moreover, the trial court considered Bo wman’s explanations about his conduct and expressly found his testimony not credible . With detailed citations to the reporter’s transcript, the trial court explained: “B owman’s relatively lengthy testimony afforded ample opportunity for the court to evaluate hi s credibility as a party witness. The court
has concluded that he has been an unrelia ble historian as to events in which he significantly participated in th e instant case. [Citations.] As arbiter of the credibility of the witness, the court finds that Bowman ’s testimony was significantly lacking in credibility, particularly with re spect to his testimony that he sent any notice to [David] that the subject property ‘was foreclosed on.’ [Citations.] Bowman’s facile response to the inquiry as to his reason fo r purportedly sending such a notic e to [David] was, ‘Just, I don’t know, just sending out notices to people as to . . . what property the estate no longer22 owned.’ [Citation.] Bowman ‘just’ inexplic ably and improperly did not send any such notices to the probate court, no r to [David.] [Citation.]” In connection with appellants’ specific assertion that the evidence show ed Bowman assisted William in trying to refinance the property, the trial court found ot herwise, explaining that “[f]or a trial in which little, if any, corroboratin g documentary evidence was co llectively proffered by the defendants, the absolu te absence of even a scintilla of any evidentiary foundation, testimonial or documentary, to support the foregoing line of questio ning of Bowman by [William]’s attorney [regarding attempts to obtain a loan] [c itation] was extraordinary.” “‘Credibility is an issue for the fact finde r’” and “‘we do not reweigh evidence or reassess the credibility of w itnesses. [Citation.]’” ( Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 915.) Even when the evid ence gives rise to conflicting reasonable inferences, the inference that supports the tr ial court’s finding is conclusive on appeal. ( Ibid .) Lastly, appellants argue that David faile d to meet his burden of proof because there was insufficient expert testimony estab lishing Bowman’s breach of the standard of care. As a threshold matter, we note that expert testimony is not required in all instances. “While California law holds that expert testim ony is admissible to establish the standard of care applicable to a lawyer in the perfo rmance of an engagement and whether he has performed to the standard [citation], it by no m eans clearly establishes the parameters of the necessity of expert testimony to the plaintiff’s burden of proof.” ( Wright v. Williams (1975) 47 Cal.App.3d 802, 810.) Thus, expe rt testimony is not required where “the failure of attorney performan ce [is] so clear that a trier of fact may find professional negligence unaided by the te stimony of experts.” ( Ibid .) In any event, we need not determine whether Bowman’s professional neg ligence was so clear because probate and tax attorney Gertner testified that Bowman acted below the standard of care when he permitted his client William to acquire the So uth Gate property as part of the Cobo action’s settlement, stating: “It sounds like more of a shell game when you’re seeking recovery on behalf of an estate and when the dust settles the proper ty finds its way into
the hands of the executor indivi dually.” He also opined it was below the standard of care23 for Bowman to not report the acquisition to the probate court and to fail to receive approval for the payment of his fees. In re sponse to a question as to whether his opinion would change if he knew the Estate had no funds to purchase the South Gate property, Gertner further opined that because of the clea r equity in the proper ty it should not have been lost in the first place. Finally, Gert ner opined that, at a mi nimum, Bowman should have sought permission from the probate cour t for William’s acquis ition, which in turn
would have enabled David to receive notice of the proposed transaction. 3. Causation and damages. “To prevail in a legal malpractice action, ‘[s]imply showing the attorney erred is not enough.’ [Citation.] The plaintiff must also establish that but for the alleged malpractice trial or settlement of the unde rlying lawsuit would have resulted in a better outcome. [Citations.]” ( Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 166.) Courts have acknowledged that “[d]etermining causation always requires evaluation of hypothetical situations concer ning what might have happened, but did not. In both litigation and transactional malpractice ca ses, the crucial causation inquiry is what would have happened if the defendant attorney had not been negligent. This is so because the very idea of causation necessarily involves comparing historical events to a hypothetical alternative.” ( Viner v. Sweet (2003) 30 Cal.4th 1232, 1242.) Here, the trial court determined that Bo wman assisted William in his deliberate course of conduct in concealing his self-dea ling from both the probate court and David, and this goal of concealment was the reas on David was never approached to provide assistance in keeping the South Gate property ou t of foreclosure. It further found that David established the loss of the property wa s caused by Bowman’s legal negligence in failing to obtain readily availa ble assistance from David, and that recourse to David’s
financial abilities and other re sources would have yielded a more favorable result. Noting that David held a mast er’s degree in business admi nistration, had significant management level business experience and had liv ed in the same home for over 40 years, the trial court summarized his testimony releva nt to his preservatio n of the South Gate property: “The plaintiff was asked by his a ttorney, as follows: [¶] ‘If your brother had24 contacted you in 1998 and explained to you that there was approximately $60,000 owed on the house, the house faced foreclosure and had a value in excess of a hundred thousand dollars, would you have been in a fi nancial position to take care of that debt?’ [¶] [David] answered, ‘Absolutely .’ Then asked if he would ha ve taken care of that debt, [David] again answered, ‘Absolut ely.’ [David] testified that, ‘with that kind of equity,’ he would have bought the subject property , negotiated the balance with [William] and then either rented the subject property out or sold the house, sooner or later, depending on when its property value went up.” Though appellants characterize Davi d’s testimony about his willingness and ability to preserve the South Gate property fo r the Estate as self-s erving and speculative,
the trial court found otherwise. We reco gnize that the plaintiff’s burden to show causation and damages in a lega l malpractice action is signifi cant: “The mere probability
that a certain event would ha ve happened will not furnish th e foundation for malpractice damages. ‘“Damages to be subject to a prope r award must be such as follows the act complained of as a legal certainty. ”’ [Citations.]” ( Barnard v. Langer (2003) 109 Cal.App.4th 1453, 1461-1462.) Here, the evid ence established that David was in a position and would ha ve acted to prevent the South Ga te property from falling into foreclosure, yet he received no information about the Probate action despite having filed a special notice that obligated Bowman to provide him with notice of the proceedings. We agree with the trial court that this evid ence satisfied David’s bu rden to show more than a mere probability th at the Estate would have been ab le to preserve the property but for Bowman’s negligence. (Compare id. at p. 1462 [evidence insufficient to show that but for law firm’s negligence lawsuit would have settled for more or received a more favorable recovery had the matter gone to tr ial where the plaintiff offered no evidence to show the underlying defendant would have offered a larger se ttlement or a trier of fact
would have awarded more th an the settlement amount].) We likewise reject appellants’ argument that the trial court erred in awarding $470,652.36 in damages against Bowman—t he same amount it awarded against William for conversion. The amount of damages is a ques tion of fact and will not be disturbed if it25 is supported by substantial evidence. ( Westphal v. Wal-Mart Stores, Inc. (1998) 68 Cal.App.4th 1071, 1078.) The evidence is in sufficient to support a damage award only when no reasonable interpretation of the r ecord would support the amount awarded. ( San Diego Metropolitan Transit D evelopment Bd. v. Cushman (1997) 53 Cal.App.4th 918, 931.) Generally, “an atto rney’s ‘liability, as in other neg ligence cases, is for all damages directly and proximately caused by his negligence.’ [Citation.]” ( Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 980.) Subs tantial evidence supported the trial
court’s determination that the Estate’s loss of the value of the South Gate property was an appropriate measure of damages, as the loss was proximately caused by Bowman’s negligence.
4. Leave to amend.
We find no merit to Bowm an’s argument that the tr ial court’s permitting David leave to file an amended complaint prej udiced him by changing the focus of the proceedings. The amended pl eading added an allegation to the cause of action for negligence against Bowman th at he owed a duty “to competently instruct defendant [William] to care for and protect the assets of the estate,” and one paragraph concerning Bowman’s negligent failure “t o take steps to protect and preserve estate property.” 7 In granting the motion for leave to amend, the trial court ruled: “[David]’s further articulation of already allege d bases for defendant Bowman’s alleged legal negligence fall well within the scope of th e various allegations in the or iginal complaint with respect to said defendant having failed to prosecute th e probate of the estate of No[n]a Robertson diligently and faithfully. The court is unconvinced by defe ndant Bowman’s arguments to the contrary and by his protests of having been surprised and ‘san d-bagged’ by [David]’s
motion. The court finds no unfair and/or significant prejudice impacting defendant Bowman within the meaning of the foregoing statutory a nd decisional law in granting [David]’s motion for leav e to file his first amended complaint.”

7 The trial court also permitted David leav e to amend to allege an additional cause of action against William, but ultimately conc luded the statute of limitations barred the claim.26 A trial court may allow a pleading to be amended at any time up to and including trial. (Code Civ. Proc., §§ 473, subd. (a)(1), 576.) “‘Th e basic rule applicable to amendments to conform to proof is that th e amended pleading mu st be based upon the same general set of facts as those upon which the cause of action or defense as originally pleaded was grounded.’” ( Garcia v. Roberts (2009) 173 Cal.App.4th 900, 910.) The trial court has broad discretion to grant leave to amend, and “‘“[t]hus, even if the reviewing court might have ruled otherwis e in the first instance, the trial court’s order will yet not be reversed unless, as a ma tter of law, it is not supp orted by the record.”’” ( Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 242.) No abuse of discretion
occurred here. Here, as in Honig v. Financial Corp. of America (1992) 6 Cal.App.4th 960, 966, “[t]he proposed amendments finished telling th e story begun in the original complaint.
The added assertions described the continuation of the events asserted in the initial pleading.” Indeed, the amended allegations related to Bowman’s conduct in connection with the foreclosure of the South Gate proper ty. Given the stipulated facts included that Bowman represented William at the inception of the Prob ate action and during the time the South Gate property went into foreclosure, the trial court acted within its discretion to conclude the amendment caused no surp rise or prejudice to Bowman. (See Higgins v.
Del Faro (1981) 123 Cal.App.3d 558, 565 [where an amendment provides “‘merely the
addition of matters essential to make th e original cause of action complete’ the amendment should certainly be allowed by the court. [Citation.] Such an amendment effects no change in the nature of the case, and can therefore cause no surprise or prejudice to the adverse party”].) E. Statute of Limitations. The trial court ruled the applicable statutes of limitations did not operate as to bar
the claims for breach of fiduc iary duty, conversi on or negligence both because the defense was not properl y pleaded and because those clai ms did not accrue until William disposed of the South Gate property. We find no basis to disturb this conclusion.27 The statute of limitations, which operates as an affirmative defe nse, prescribes the period beyond which a plaintiff ma y not bring a cause of action. ( Fox v. Ethicon EndoSurgery, Inc. (2005) 35 Cal.4th 797, 806.) Once a cause of action accrues, the plaintiff must bring a claim within the limitati ons period. (Code Civ. Proc., § 312; Fox v. EndoEthicon Surgery, Inc., supra, 35 Cal.4th at p. 806.) The determination of the accrual of a cause of action is a question of fact. ( Fox v. Endo-Ethicon Su rgery, Inc., supra, at p. 810; Bookout v. State ex rel. Dept. of Transportation (2010) 186 Cal.App.4th 1478, 1484.)
We defer to the trial court’s factual findi ngs if supported by substantial evidence. ( Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916.) Only if the facts are undisputed do we independently review the application of the statute of limitations as a matter of law. ( Internat. Engine Parts, Inc. v. Feddersen & Co. (1995) 9 Cal.4th 606, 611-612.) The trial court properly determined that ap pellants’ failure to plead adequately the
statute of limitations as an affirmative defens e operated as a waiver of that defense. In his answer, William asserted only “[t]he statute of limit ations is a bar to any recovery,”
and Bowman asserted no affirm ative defenses. As the content of the pleadings was undisputed, we conclude, as a matter of law, appellants’ answers fa iled to comply with Code of Civil Procedure section 458, wh ich requires a party pleading a statute of limitations defense to allege the specific statutory basis for the defense. (See Brown v.
World Church (1969) 272 Cal.App.2d 684, 674 [“It is necessary for defendant who pleads the statute of limitations to specify the a pplicable section, and, if such section is divided into subdivisions, to specify the partic ular subdivision or subdivisions thereof”].)
Code of Civil Procedure section 458 is strictly applied. ( Davenport v. Stratton (1944) 24 Cal.2d 232, 247.) “The failure to properly plead the statute of limitations waives the defense.” ( Martin v. Van Bergen (2012) 209 Cal.App.4th 84, 91; accord, Richard B. Levine, inc. v. Higashi (2005) 131 Cal.App.4th 566, 573, fn. 4.) We find no merit to appellants’ argument that David’s affirmative allegation in his complaint that the statute of limitations did not operate as a bar was suffi cient to satisfy their statutory burden.28 Nor do we find any merit to a ppellants’ argument that they satisfied their pleading burden by filing an amended answer in which they alleged their statute of limitations affirmative defense with specif icity. The trial court granted David’s motion to strike the amended answer on the ground it was filed impr operly without leave of court. (See Cal. Rules of Court, rule 3.1324.) Appellants have not separately challenged that ruling, and we therefore rely only on the allegations in the original answers. (See, e.g., Fritelli, Inc. v. 350 North Canon Drive, LP (2011) 202 Cal.App.4th 35, 41 & fn. 1 [failure to challenge trial court rulings on appeal “fo rfeit[s] any contentions of error regarding them”]; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [contentions
waived when there is failure to support them with reason ed argument and citations to authority].)
DISPOSITION The judgment is affirmed. David is entitled to his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

________________ _____, J. *
FERNS
We concur:

_____________ _______________, P. J.
BOREN

___________________ _________, J.
ASHMANN-GERST

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.