Judge: Andre De La Cruz, Case: 2020-01139897, Date: 2023-08-28 Tentative Ruling
Motion for Judgment on the Pleadings filed by Theodore and Thomas McIntosh on 3/15/23
The Motion for Judgment on the Pleadings filed by Defendants Thomas McIntosh and Theodore McIntosh (the “McIntosh Defendants”) is GRANTED, with 30 calendar days’ leave to amend.
The McIntosh Defendants move for judgment on the pleadings as to the First through Fifteenth Causes of Action in Plaintiff’s First Amended Complaint (“FAC”).
The Court declines to consider any late filed documents, and any documents filed after the July 31, 2023 hearing except for the declaration filed as ordered by the Court.
A motion for judgment on the pleadings may be made, and granted, on the same grounds as a general demurrer. Cal. Code Civ. Proc § 438(c)(1)(B)(ii); Stoops v. Abbassi, 100 Cal. App. 4th 644, 650 (2002).
A motion for judgment on the pleadings that is brought by a defendant may only be made either on the ground that the court has no jurisdiction of the subject of the cause of action alleged in the complaint, or that the complaint does not state facts sufficient to constitute a cause of action against that defendant. See Code Civ. Proc. § 438(c)(1)(B).
The grounds for judgment on the pleadings must appear on the face of the complaint or be based on facts that the court may judicially notice. Code Civ. Proc. § 438(d); Cloud v. Northrop Grumman Corp., 67 Cal. App. 4th 995, 999 (1998). Factual allegations are accepted as true and are given a liberal construction. See Gerawan Farming, Inc. v. Lyons, 24 Cal. 4th 468, 515-516 (2000). Extrinsic evidence is not considered on a motion for judgment on the pleadings. See Cloud, 67 Cal. App. 4th at 999.
1st COA for Fraud
As applicable to all causes of action, the FAC alleges that the McIntosh Defendants are “joint and several, concurrent tortfeasors under criminal and civil conspiracy,” and that Thomas McIntosh was retained by beneficiary Albert Elias to represent his interests in the trust. FAC, 4:1-16. It is alleged that Theodore McIntosh is the brother of Thomas McIntosh and committed fraud “on unsuspecting victims of Thomas McIntosh fraud by presenting him self [sic] as the bookkeeper, whom manufactures and prints from the firms [sic] computers falsified financial statements and distributes those falsified and fraudulent Financial [sic] statements to unsuspecting victims of the scheme orchestrated by ring leader W. Rod Stern, esq. and Thomas McIntosh seq.” FAC, 4:10-15.
The 1st COA also alleges that “[a]ll defendants hid from plaintiff they omitted the $274,000 to be divided in settlement 5:4-7, hid value of Fiesta juice restaurant, . . . .” FAC, 6:19-20. It additionally alleges, “[a]ll defendants hid they stole $9,018 to pay Lorenz CPA for no benefit to beneficiaries. Defendants hid $170,000 in stock, with Lorenz cooperation, since this is a c [sic] ongoing fraud case, this list is not exclusive. Further all defendants conspired to avoid the accounting required in the trust fund at 11.11 pagfe [sic] 11-3., the agreement at 2:26, 3:21., 5:4-7., and breached and concealed their duty to distribute from a reserve fund.” FAC, 6:21-28. It further alleges, “all defendants conspired to pay attorney’s hundreds of thousands of dollars to violate the intent of decedent, to conceal beneficiaries were entitled to all funds were No contest clauses, 21312 Probate code, and no attorney fees or trustees were payable . . . . Defendants as fiduciaries committed both active fraud and concealment of material facts fraud against beneficiaries from first family. This list is not exclusive.” FAC, 7:2-10.
“‘The elements of fraud that will give rise to a tort action for deceit are: '(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’” Engalla v. Permanente Medical Group, Inc., 15 Cal. 4th 951, 974 (1997).
Fraud claims must be pleaded with particularity. Daniels v. Select Portfolio Servicing, Inc., 246 Cal. App. 4th 1150, 1166 (2016). To survive demurrer, plaintiff must plead facts that “show how, when, where, to whom, and by what means the representations were tendered.” Hamilton v. Greenwich Investors XXVI, LLC, 195 Cal. App. 4th 1602, 1614 (2011).
However, this level of specificity may not be required in cases involving nondisclosure. Alfaro v. Community Housing Improvement System & Planning Assn., Inc., 171 Cal. App. 4th 1356, 1384 (2009). Suppression of a fact by one who is bound to disclose it may also constitute fraud. Civ. Code § 1710(3); Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC, 162 Cal. App. 4th 858, 868 (2008). For fraudulent concealment to be actionable, defendant must have been under a duty to disclose the facts to plaintiff. See e.g., Stevens v. Sup.Ct. (St. Francis Med. Ctr.), 180 Cal. App. 3d 605, 609-610 (1986) (hospital had duty to disclose lack of required supervision and qualification of medical staff to patient and failure to do so was actionable).
The FAC alleges that defendants “committed both active fraud and concealment of material facts fraud.” Neither is sufficiently pled, and the facts surrounding the alleged settlement are not stated with particularity. To the extent that “active fraud” is alleged, facts concerning the McIntosh Defendants are not stated with sufficient particularity, and the FAC does not plead facts showing how, when, where, to whom, and by what means, any representations were tendered.
2nd COA for Breach of Contract
A cause of action for breach of contract requires (i) the existence of a contract, (ii) performance or excuse for non-performance (iii) breach, and (iv) damages to therefrom.” Acoustics, Inc. v. Trepte Construction Co., 14 Cal. App. 3d 887, 913 (1971).
Conclusory allegations of “conspiracy” will not withstand demurrer. To allege a conspiracy, a plaintiff must plead: 1) formation and operation of the conspiracy; and 2) damage resulting to plaintiff, 3) from a wrongful act done in furtherance of the common design. Daniels v. Select Portfolio Servicing, Inc., 246 Cal. App. 4th 1150, 1173 (2016); State of Calif. ex rel. Metz v. CCC Information Services, Inc., 149 Cal. App. 4th 402, 419 (2007) (allegation that “defendants conspired to conceal their improper loss valuations” was bare legal conclusion).
Here, the prior allegations or paragraphs in the FAC are not incorporated into the 2nd COA. The 2nd COA alleges that Brown and Stenza violated their contract with decedent, and that they took over the settlement agreement on November 5, 2019 with McIntosh approval. FAC, 7:13-19. There are insufficient facts to support the existence of a contract between Plaintiff and the McIntosh Defendants, nor are the other elements of a breach of contract claim sufficiently pled. To the extent that Plaintiff attempts to allege conspiracy against the McIntosh Defendants, insufficient facts are pled in support of a conspiracy.
3rd COA for Oppression and 4th COA for Senior Abuse
The allegations in the prior paragraphs of the FAC are not incorporated. The 3rd COA alleges that all defendants know that Plaintiff is wheel-chair bound and that beneficiary Paul Elias is “gravely mentally disabled.” FAC, 7:21-22. The 4th COA alleges that both Plaintiff David Elias and beneficiary Paul Elias are disabled. FAC, 7:25-26. To the extent that Plaintiff seeks to assert a claim for elder abuse, the 3rd and 4th COAs do not plead sufficient facts to state said cause of action against the McIntosh Defendants.
5th COA for Breach of Settlement Agreement
The allegations in the prior paragraphs of the FAC are not incorporated. The 5th COA alleges, “[a]gainst all defendants for breach of contract, both original Brown and Stenza, and fiduciaries lawyers duties under restatement 3d Agency 6.01 8.01 [sic], and restatement agency 2d. including implied contracts.” FAC, 8:2-5. The 5th COA fails to allege the existence of a contract between Plaintiff and the McIntosh Defendants, as well as fails to allege facts concerning the other elements for breach of contract including performance or nonperformance, breach, and damages. Thus, the MJOP to the 5th COA should be granted.
6th COA through 9th COAs
The allegations in the prior paragraphs of the FAC are not expressly incorporated. The 6th COA for Breach of Fiduciary Duty, 7th COA for Civil Conspiracy, 8th COA for Conversion, and 9th COA for IIED are alleged “[a]gainst all defendants for the acts described above and in plaintiffs [sic] opening brief, GO60100, GO60098, GO60101.” FAC, 8:6-19. These briefs do not appear to be attached to the FAC, and there are no facts alleged in support of the 6th through 9th COAs as to the McIntosh Defendants.
10th COA for Intentional and Negligent Misrepresentation
The allegations in the prior paragraphs of the FAC are not incorporated. The 10th COA also relies on briefs filed in GO60100, and GO60098, as well as alleges that defendants conspired to conceal they had violated the no contest clauses, and beneficiaries’ remedies under “21312 and No contest clause, and 859 probate code, Estate of Aslock (2020), trustees fees, attorney fees were no [sic] chargeable, and hid value of Fiesta Juice Restaurant LLC, and over $170,000 in stocks.” FAC, 8:23-9:2. It also alleges that “defendants hid Stern billed over $114,000, then another $27,000 for breaching his fiduciary duties on pleadings dated November 30, 2018 and subsequent including April 7, 2021, August 7, 2021 to violate the accounting requirement of the trust on 11-4.” FAC, 9:3-5.
The 10th COA does not plead facts to support the elements of intentional or negligent misrepresentations by the McIntosh Defendants, and are not pled with sufficient particularity, as set forth above as to the 1st COA.
11th COA for Negligence
The basic elements of an actionable negligence claim are: a duty on the part of defendant toward plaintiff; defendant's breach of that duty; and harm to plaintiff caused by the breach. Kesner v. Sup.Ct. (Pneumo Abex, LLC), 1 Cal. 5th 1132, 1142 (2016).
The allegations in the prior paragraphs of the FAC are not incorporated. The 11th COA alleges that it is “[a]gainst all defendants who owed plaintiffs duties under their fiduciary and statutory obligations, whom also breached those duties, and have caused plaintiff and first family damages for their fraud, intentional and negligent misrepresentations, negligence, professional attorney negligence, and fraud under 1572., and 1573 Civil codes [sic].” FAC, 9:7-10.
The 11th COA does not allege a duty owed by the McIntosh Defendants to Plaintiff, let alone breach of that duty or harm by them.
12th COA for Professional Negligence/Malpractice/Conflict of Interest
“‘The failure to provide competent representation in a civil or criminal case may be the basis for civil liability under a theory of professional negligence. In a legal malpractice action arising from a civil proceeding, the elements are (1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney’s negligence. [Citations.]” Wilkinson v. Zelen, 167 Cal. App. 4th 37, 45 (2008).
Here, as noted by the McIntosh Defendants, the cause of action is not numbered but it is the 12th COA. It alleges “all defendants failed to act competently under Cal Bar rules and the holding of Lucas v. Hamm. [sic], and as professional lawyers.” FAC, 9:12-14. The allegations in the prior paragraphs of the FAC are not incorporated, and there are insufficient allegations to support any of the causes of action as against the McIntosh Defendants.
13th COA for Fraudulent Concealment of Conflict of Interest
As noted by the McIntosh Defendants, the 13th COA is incorrectly labelled as #12. The prior allegations are not incorporated, and the 13th COA alleges that “Our attorneys” were “disloyal agents working for ring leader Stern, esq. and his coconspirators Gulaya, esq., and McIntosh, esq. as well as Brown and Stenza LLP law firms,” and that “all defendants” hid that they conspired to violate no contest clauses inserted in “the will” and “the trust,” as well as conspired to hide that accounting were required. FAC, 9:16-21. It also alleges that “[d]efendants hid they were our attorneys breeching [sic] their fiduciaries [sic] duties to us under 16068 probate code and Agency restatement 3d 3.01-8,” and “hid first family were entitled to protections under probate codes CA Prob Code § 16061-16064.” FAC, 9:21-23. Insufficient facts are pled to support the elements of a claim for fraudulent concealment of a conflict of interest, nor is the claim pled with the requisite particularity. The 13th COA also fails to plead sufficient facts in support of a conspiracy.
14th COA for Fraudulent Concealment of Embezzlement
As noted by the McIntosh Defendants, this cause of action is not numbered but is the 14th COA. It is alleged “[a]gainst all defendants as Joint and Several criminal and ongoing civil conspiracy tortfeasors.” FAC, 10:3-4. The 14th COA fails to plead sufficient facts for the same reasons as set forth above as to the 13th COA.
15th COA for Violation of Statutory Enactments
As noted by the McIntosh Defendants, the 15th COA for Violation of Statutory Enactments is mislabeled #13. The prior allegations of the FAC are not incorporated. It is alleged “[a]gainst all defendants as joint and several tortfeasors and criminal co conspirators in a [sic] ongoing conspiracy.” FAC, 10:11-12. There are no allegations specific to the McIntosh Defendants alleged therein, and there are insufficient facts pled to support a conspiracy as against the McIntosh Defendants.
The Court will allow Plaintiff an opportunity to amend.
Plaintiff to file and serve an amended complaint restricted to the Court’s ruling above within 30 calendar days of the notice of ruling.
The McIntosh Defendants to give notice.