Potter vs. Brookdale Irvine

“The Code of Civil Procedure does not specify a statute of limitations for breach of fiduciary duty.” (Thomson v. Canyon (2011) 198 Cal.App.4th 594, 606.) “There is a limitation to the applicability of this statute of limitations, as with any statute of limitations. It is widely understood that a plaintiff is not permitted to evade a statute of limitations by artful pleading that labels a cause of action one thing while actually stating another. California courts therefore look to the gravamen of the cause of action.” (Ibid.)

While Plaintiff labels his cause of action as one for breach of fiduciary duty, the gravamen of his action is that the acts of Defendant’s employee were negligent. Thus, the two-year statute of limitations period governing negligence applies. Plaintiff’s action was filed after the two year time period lapsed. Plaintiff has also admitted that facts underlying the alleged tolling of the statute of limitations due to lack of mental capacity alleged in the TAC are false. Further, to the extent Plaintiff has any viable breach of fiduciary duty cause of action against Defendant, i.e., he can show that there was a fiduciary relationship, he has admitted that no breach of such relationship occurred.

All of the above demonstrate that Plaintiff’s cause of action for breach of fiduciary duty fails as a matter of law. Therefore, Defendant’s Motion for Summary Judgment is GRANTED. Defendant to prepare the appropriate order and proposed judgment.

Defendant to give notice. 10 Potter vs. MSJ #1 9 Brookdale Irvine, Defendant, Brookdale Living Communities, Inc. 22-01278030 (“Brookdale Living”), moves for summary judgment, or in the alternative, summary adjudication of the four causes of action asserted in the operative Second Amended Complaint of Plaintiffs, Betty Gregory, in and through her Successor-In-Interest, Kimberly Potter and Kimberly Potter.

“Notice of the motion and supporting papers shall be served on all other parties to the action at least 81 days before the time appointed for hearing. If the notice is served by mail, the required 81-day period of notice shall be increased by 5 days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States. If the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 81-

day period of notice shall be increased by two court days.” (Code Civ. Proc., § 437c(a)(2).)

On February 26, 2026, the Court granted Plaintiffs’ counsel’s motions to be relieved as counsel of record for Kimberly Potter, indicating that the “withdrawal is only effective upon the filing of a proof of service of this [signed] order on Plaintiff.” (ROA 413.)

The Court’s file reflects that proof of service of the order granting the motion to be relieved as counsel of record was filed on April 6, 2026. (ROA 463, 465.)

After the Court granted Plaintiff’s counsel motion to be relived as counsel on February 2026, but before proof of service of the order granting the motion to be relieved as counsel of record was filed on April 6, 2026, Defendant, Brookdale Living filed and served the instant motion for summary judgment, or in the alternative, summary adjudication on March 25, 2026.

The proofs of service attached to the moving papers indicate that the moving papers were served on Kimberly Potter on March 25, 2026, by electronic service only.

California Rules of Court, rule 2.253(b)(2) provides that “[s]elf-represented parties or other self-represented persons are exempt from any mandatory electronic filing and service requirements adopted by courts under this rule and Code of Civil Procedure section 1010.6.” Additionally, “[i]n civil cases involving both represented and self-represented parties or other persons, represented parties or other persons may be required to file and serve documents electronically; however, in these cases, each self-represented party or other person is to file, serve, and be served with documents by nonelectronic means unless the self-represented party or other person affirmatively agrees otherwise.” (California Rules of Court, rule 2.253(b)(3).)

“An unrepresented party may consent to receive electronic service.” (Code Civ. Proc. §1010.6(c)(2).) Express consent to electronic service may be given by either (1) serving a notice on all parties and filing the notice with the court, or (2) “[m]anifesting affirmative consent through electronic means with the court or the court’s electronic filing service provider, and concurrently providing the party’s electronic address with that consent for the purpose of receiving electronic service. The act of electronic filing shall not be construed as express consent.” (Code Civ. Proc. §1010.6(c)(3)(i)-(ii).) California Rules of Court, rule 2.251(b) sets forth similar

ways in which a party may agree to accept electronic service.

Kimberly Potter is self-represented. It does not appear that Kimberly Potter has affirmatively agreed to accept service by electronic means. Nor has Kimberly Potter filed an opposition to the instant motion for summary judgment and/or summary adjudication.

Under these circumstances, it does not appear that Defendant Brookdale Living properly served the moving papers on Kimberly Potter. Consequently, Brookdale Living’s motion for summary judgment and/or summary adjudication is DENIED, without prejudice.

The Court orders clerk to give notice.

MSJ #2 Defendant, BLC Inn at the Park, LLC dba Brookdale Irvine (“Brookdale Irvine”), moves for summary judgment, or in the alternative, summary adjudication of the four causes of action asserted in the operative Second Amended Complaint of Plaintiffs, Betty Gregory, in and through her Successor-In-Interest, Kimberly Potter and Kimberly Potter.

“Notice of the motion and supporting papers shall be served on all other parties to the action at least 81 days before the time appointed for hearing. If the notice is served by mail, the required 81-day period of notice shall be increased by 5 days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States. If the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 81- day period of notice shall be increased by two court days.” (Code Civ. Proc., § 437c(a)(2).)

On February 26, 2026, the Court granted Plaintiffs’ counsel’s motions to be relieved as counsel of record for Kimberly Potter, indicating that the “withdrawal is only effective upon the filing of a proof of service of this [signed] order on Plaintiff.” (ROA 413.)

The Court’s file reflects that proof of service of the order granting the motion to be relieved as counsel of record was filed on April 6, 2026. (ROA 463, 465.)

After the Court granted Plaintiff’s counsel motion to be relived as counsel on February 2026, but before proof of service of the order granting the motion to be relieved as

counsel of record was filed on April 6, 2026, Defendant, Brookdale Living filed and served the instant motion for summary judgment, or in the alternative, summary adjudication on March 25, 2026.

The proofs of service attached to the moving papers indicate that the moving papers were served on Kimberly Potter on March 25, 2026, by electronic service only.

California Rules of Court, rule 2.253(b)(2) provides that “[s]elf-represented parties or other self-represented persons are exempt from any mandatory electronic filing and service requirements adopted by courts under this rule and Code of Civil Procedure section 1010.6.” Additionally, “[i]n civil cases involving both represented and self-represented parties or other persons, represented parties or other persons may be required to file and serve documents electronically; however, in these cases, each self-represented party or other person is to file, serve, and be served with documents by nonelectronic means unless the self-represented party or other person affirmatively agrees otherwise.” (California Rules of Court, rule 2.253(b)(3).)

“An unrepresented party may consent to receive electronic service.” (Code Civ. Proc. §1010.6(c)(2).) Express consent to electronic service may be given by either (1) serving a notice on all parties and filing the notice with the court, or (2) “[m]anifesting affirmative consent through electronic means with the court or the court’s electronic filing service provider, and concurrently providing the party’s electronic address with that consent for the purpose of receiving electronic service. The act of electronic filing shall not be construed as express consent.” (Code Civ. Proc. §1010.6(c)(3)(i)-(ii).) California Rules of Court, rule 2.251(b) sets forth similar ways in which a party may agree to accept electronic service.

Kimberly Potter is self-represented. It does not appear that Kimberly Potter has affirmatively agreed to accept service by electronic means. Nor has Kimberly Potter filed an opposition to the instant motion for summary judgment and/or summary adjudication.

Under these circumstances, it does not appear that Defendant Brookdale Living properly served the moving papers on Kimberly Potter. Consequently, Brookdale Living’s motion for summary judgment and/or summary adjudication is DENIED, without prejudice.

The Court orders clerk to give notice.