Judge: Anne Richardson, Case: 21STCV29304, Date: 2023-10-10 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 21STCV29304    Hearing Date: December 5, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Defendants Eugene La Pietra, Alwin La Pietra, and Carl La Pietra filed a Motion to Dismiss for Lack of Standing, which Plaintiff opposed on November 20, 2023, and Defendants replied on November 27, 2023.

After review, the Court DENIES WITHOUT PREJUDICE Defendants’ Motion to Dismiss for Lack of Standing.  

Background

Pleadings

On August 9, 2021, Plaintiffs Jesus Asael Herrera Lopez (individually and in his capacity as the Successor in Interest of Alejandro Lopez Herrera aka Alejandro La Pietra) and Does 1 through 10 filed a complaint against Defendants Eugene La Pietra, Alwin La Pietra (individually and in his capacity as the trustee of the La Pietra Extended Family Trust dated June 09, 2017), Carl La Pietra (individually and in his capacity as the trustee of the La Pietra Extended Family Trust dated June 09, 2017), Janay La Pietra, Noah Benton (dismissed on October 1, 2021), and Does 1 through 50, alleging causes of action for: (1) Breach of Pooling Agreement; (2) Breach of Implied in Fact Contract; (3) Fraud; (4) Breach of Fiduciary Duty; (5) Aiding and Abetting Breach of Fiduciary Duty; (6) Breach of Fiduciary Duty; (7) Unjust Enrichment; (8) Unjust Enrichment; (9) Constructive Trust; (10) Constructive Trust; (11) Declaratory Relief; (12) Intentional Infliction of Emotional Distress; (13) Conversion; and (14) Intentional Interference with Existing Contractual Relations.

(The Court will use the parties’ first names for ease of reference and clarity considering the parties’ shared last names. No disrespect is intended.)

The claims arise from allegations that, among other things, Plaintiff Jesus Herrera Lopez is the beneficiary of the estate of his deceased brother/adoptive father, Alejandro Lopez Herrera aka Alejandro La Pietra, and that Plaintiff has been denied a sizeable estate belonging to Alejandro at the time of this death due to Defendants’ conduct.

Jesus alleges that Alejandro and Eugene were romantic and business partners who could not legally marry prior to the 2014 change in California law allowing same sex marriage. As a result, pursuant to a 1993 oral agreement, Alejandro and Eugene agreed to treat as joint property all earnings, income, and property owned by each of them from the beginning of their relationship onwards, to be divided equally upon death, separation, or otherwise, with the couple amassing an eight-plus-figure estate by the time of Alejandro’s death on August 11, 2017. Jesus also alleges that he was legally adopted by Alejandro (claimed by Plaintiff as taking place in 1998), that he began living with Eugene and Alejandro in or around 1999, and that Alejandro and Eugene were married on February 4, 2014. Plaintiff alleges that after Alejandro’s death, Eugene initiated trust proceedings as to Alejandro’s estate in San Diego, California, as controlled by The La Pietra Extended Family Trust dated June 09, 2019 (the Trust; and the San Diego proceedings). Plaintiff alleges that in 2019, Plaintiff found a will in Mexico allegedly executed by Alejandro on July 28, 2017, shortly before his death on August 11, 2017. The will revoked all prior testamentary documents executed by Alejandro—including the Trust at issue in the San Diego proceedings—and named Plaintiff Jesus as the sole beneficiary of Alejandro’s estate. Plaintiff alleges to have confronted Eugene with his late brother’s will, only for Eugene to refuse to acknowledge its validity and represent that Alejandro’s estate was minimal because Eugene had acquired most of his wealth before the parties were married, rendering most of the assets at issue Eugene’s separate property. Plaintiff’s complaint frames this conduct by Eugene as a repudiation of the oral 1993 agreement between Alejandro and Eugene.

Procedural History

On October 22, 2021, the Court granted a stipulation by the parties and stayed this action in its entirety “until there is a final judgment on the Petition to Determine the Validity of Trust filed by Plaintiff Jesus Herrera Lopez herein on September 27, 2019, which [wa]s set for trial on January 7, 2022 in (San Diego County Court Case No. 37-2019-00028567-PR-TR-CTL) [the San Diego proceedings].”

On March 25, 2022, the Court granted another stipulation by the parties and ordered another basis for a stay in this action, i.e., “until there is a resolution of the claims presented in (Los Angeles County Court, Case No. 20STPB07984 – Estate of Alejandro Lopez Herrera aka Alejandro La Pietra Decedent) [hereinafter, the probate proceedings, which involves a determination on competing wills for Alejandro’s estate].”

On June 2, 2022, Department 1 determined that certain other civil matters before the Superior Court were not related to this action and the probate proceedings (20STPB07984). The Court also determined that this action need not be related to the probate proceedings and made two notes regarding this action. First, Department 1 stated that the parties “ha[d] already stipulated to stay the civil case pending ‘resolution of the claims presented’ in the probate proceedings relating to the competing Wills.” Second, Department 1 stated that “there [wa]s minimal risk of conflicting rulings or duplications of judicial resources” as to the determination of “which Will is valid” because this action “[wa]s stayed pending the probate court’s determination on th[e] [Will validity] issue.”

On June 24, 2022, this Court held a status conference re the San Diego proceedings, at which time the Court and counsel conferred on the issue of stay and the probate proceedings, with the Court ordering that this action remain stayed and noting that the probate action was pending. The Court continued the status conference to October 31, 2022.

On October 31, 2022, this Court held another status conference re the San Diego proceedings, at which time the Court and counsel conferred on the status of the case and counsel represented to the Court that another case could be related to this action. The Court continued the status conference to June 2, 2023.

On March 27, 2023, the Court continued the status conference from June 2, 2023 to August 7, 2023.

On August 7, 2023, the Court held a third status conference re the San Diego proceedings, at which time the Court was informed that the San Diego proceedings had concluded and that the Los Angeles probate proceedings would probably go to trial in the middle of next year. The Court also noted that this action had been ruled not related to the probate proceedings and set a status conference re status of probate proceedings for October 10, 2023.

On October 10, 2023, the Court held a status conference as well as heard Plaintiff Jesus Herrera Lopez’s motion to lift the stay of this action on the ground of Eugene’s stage 4 prostate cancer and alleged declining health and mental ability. The Court granted Plaintiff’s motion in part. The Court lifted the stay as to conducting discovery from Defendant Eugene La Pietra. The Court rejected Defendants’ argument that a defect in Plaintiff’s Code of Civil Procedure section 377.32 declaration undercut Plaintiff’s standing in this action and the Court stated that “the Court cannot find that Plaintiff lacks standing to pursue this action” based on Defendants’ failure to challenge the 377.32 declaration pursuant to a plea in abatement. The Court also stated that “[t]o the extent Defendants argue that Plaintiff does not have standing because there is an issue with the validity of the will, such argument depends on the finding of the concurrent Probate Court. Clearly, this is why this case was stayed to begin with.”

The Instant Motion

On November 7, 2023, Defendants Eugene, Alwin, and Carl filed and served a motion to dismiss for lack of standing. The motion is made on the grounds that Plaintiff has never had the proper standing to bring this action and currently lacks proper standing to maintain this action. Defendants contend that Plaintiff has not and cannot demonstrate that he is the sole successor-in-interest to Alejandro. On November 8, 2023, Defendant Janay filed a joinder in the motion for lack of standing.

On November 20, 2023, Plaintiff filed and served an opposition to the motion. On November 27, 2023, Defendants Eugene, Alwin, and Carl filed a reply brief.

Judicial Notice

The Court GRANTS Plaintiff Jesus’s Request for Judicial Notice pursuant to California Evidence Code, Sections 452(d) and 453. The Court thereby takes judicial notice of this Court’s October 10, 2023 Minute Order in this action and Plaintiff’s Petition for Probate filed in the probate proceedings.

Motion to Dismiss for Lack of Standing: DENIED WITHOUT PREJDUICE.

Legal Standard:

“A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent’s successor in interest . . . and an action may be commenced by the decedent’s personal representative or, if none, by the decedent’s successor in interest.” (Code Civ. Proc., § 377.30.) A “decedent’s successor in interest means the beneficiary of the decedent’s estate or other successor in interest who succeeds to a cause of action or to a particular item of the property that is the subject of a cause of action.” (Code Civ. Proc., § 377.11.) A “beneficiary of the decedent’s estate means: (a) If the decedent died leaving a will, the sole beneficiary or all of the beneficiaries who succeed to a cause of action, or to a particular item of property that is the subject of a cause of action, under the decedent’s will” or “(b) If the decedent died without leaving a will, the sole person or all of the person who succeed to a cause of action, or to a particular item of property that is the subject of a cause of action, under Sections 6401 and 6402 of the Probate Code or, if the law of a sister state or foreign nation governs succession to the cause of action or a particular item of property, under the law of the sister state or foreign nation.” (Code Civ. Proc., § 377.10, subd. (a)-(b).) A “person who seeks to commence an action or proceeding or to continue a pending action or proceeding as the decedent’s successor in interest . . . shall execute and file an affidavit or a declaration under the penalty of pejury” and such affidavit or declaration must state that there is no action “now pending in California for administration of the decedent’s estate.” (Code Civ. Proc., § 377.32, subd. (a)(3).)

Analysis:

I.  Improper Notice

Plaintiff contends that Defendants’ motion should be denied due to insufficient notice. Defendants contend that Plaintiff’s opposition was untimely filed and should be disregarded.

“[A]ll moving and supporting papers shall be served and filed at least 16 court days before the hearing.” (Code Civ. Proc., § 1005, subd. (b).) “All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing.” (Ibid.) “Any period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days.” (Code Civ. Proc., § 1010.6, subd. (a)(3)(B).)

Defendants filed and served their motion on November 7, 2023 by electronic service with a December 5, 2023 hearing date. The Court was closed for holidays on November 10, November 23, November 24, 2023. Thus, Defendants should have filed the motion, at the latest, by November 6, 2023. Thus, the motion was not filed in a timely manner.

The opposition also was filed and served late. The opposition was filed and served via electronic service on November 20, 2023. The opposition should have been filed and served, at the latest, by November 16, 2023.  

Plaintiff does not indicate any prejudice due to the late filing of the motion. If the Court accepts Plaintiff’s argument, then it follows that Plaintiff’s opposition should also be disregarded for improper notice.

The Court will not deny Defendants’ motion based on insufficient notice. The Court will consider the merits of the motion as well as the opposition.

II.  Lack of Statutory Authority

Plaintiff asserts that the Court should deny Defendants’ motion because there is no statutory basis for the motion to dismiss and the notice of motion is invalid.

“A basic principle of motion practice is that the moving party must specify for the court and the opposing party the grounds upon which that party seeks relief.” (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125.) A trial court is free to consider a motion regardless of its label. (Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1609.) “The nature of the motion is determined by the nature of the relief sought, not by the label attached to it.” (City and County of San Francisco v. Muller (1990) 177 Cal.App.2d 600, 603.)

The Court rejects Plaintiff’s contention. The notice of motion provides that it is brought because Plaintiff lacks proper standing to maintain the action, and a dismissal of this action is requested on such grounds. The notice of motion is therefore proper. Moreover, this Court’s October 10, 2023 Minute Order, which granted in part Plaintiff’s motion to lift the stay in this action, stated that the Court stayed such order so that the Court could “consider Defendant’s motion that this case should be dismissed for lack of standing.”  

Therefore, the Court finds that Defendants have brought the motion under a proper basis and that the notice of motion is valid.

III.  Plaintiff’s Declaration Pursuant to Code Civ. Proc. § 377.32

Defendants contend that this action was improperly brought because Plaintiff’s declaration under Code Civ. Proc. § 377.32 is defective. Defendants contend that Plaintiff fabricated that there is no pending action for administration of Alejandro’s estate. The Court has taken judicial notice of its October 10, 2023 Minute Order as to Plaintiff’s motion to lift the stay, and the Court references such order. Defendants raised the same argument in opposition to Plaintiff’s motion to lift the stay and such argument was rejected by the Court. The Court’s October 10, 2023 Minute Order explicitly states that “California courts have found that 377.32 declarations are not conditions precedent to bringing a successor-in-interest-to decedent action and that a failure to file such declaration merely exposes the action to a plea in abatement.” (10/10/23 Minute Order at p.7.) The Court has already determined that the failure to file a proper section 377.32 declaration does not undercut standing.

Additionally, the Court rejects Plaintiff’s argument that the Court has already determined that he has standing to bring this action pursuant to its October 10, 2023 Minute Order. The Court did not find that Plaintiff has standing to bring this action. The Court stated that due to Defendants’ failure to raise a timely plea of abatement or an objection to Plaintiff’s section 377.32 declaration, the Court could not find that “Plaintiff lacks standing to pursue this action.” (10/10/23 Minute Order at p.8.) The Court made no finding that Plaintiff had standing. In fact, the Court opined that “[o]nce the probate proceedings conclude, this Court can determine whether Plaintiff has standing to bring this action and whether the action should proceed on that determination.” (Id., p.9.)

IV.  Plea in Abatement

In reply, Defendants contend that if the Court decides it is without power to dismiss this action for lack of standing, they have presented a meritorious plea in abatement. The Court rejects such contention as explained below.

“A plea in abatement is essentially a request—not that an action be terminated—but that it be continued until such time as there has been a disposition of the first action. Sustaining of a plea of abatement, raised by demurrer, does not justify a subsequent dismissal of the action without leave to amend.” (Shuffer v. Board of Trustees (1977) 67 Cal.App.3d 208, 217.) “[A] plea in abatement such as a lack of capacity to sue must be raised by defendant at the earliest opportunity or it is waived.” (The Rossdale Group, LLC v. Walton (2017) 12 Cal.App.5th 936, 943.) “The proper time to raise a plea in abatement is in the original answer or by demurrer at the time of the answer.” (Ibid.) A plea in abatement “is a technical objection and must be pleaded specifically.” (Vitug v. Griffin (1989) 214 Cal.App.3d 488, 494.)

Here, the record in this action does not reflect that an Answer to the complaint or a demurrer has been filed by any defendant. Thus, Defendants’ argument in their reply brief that they have presented a meritorious plea in abatement is incorrect. Defendants cannot present a plea in abatement in a reply brief. If Defendants wish to present a plea in abatement, then they must do so by either an answer to the complaint or a demurrer to the complaint.

V.  The Standing of Plaintiff to Prosecute this Action

Defendants assert that Plaintiff lacks standing to prosecute this action because he has never been appointed as Alejandro’s personal representative and he is not a successor-in-interest to Alejandro’s estate.

In support of the motion, Defendants present the declaration of their counsel, J.T. Fox (“Fox”). Counsel declares that he is familiar with the San Diego proceedings and the probate proceedings. (Fox Decl., ¶ 2.) On September 25, 2020, in the probate proceedings, Dr. BJ Hawkins, a private fiduciary, filed a petition for probate of a will of Alejandro dated July 28, 2017 and for Hawkins’ appointment as Administrator CTA. (Id., ¶ 4 and Exhibit A.) The July 28, 2017 Will named Jesus as a beneficiary of Alejandro’s estate and nominated Dr. BJ Hawkins as Alejandro’s personal representative. (Id.) On April 19, 2023, the Eugene La Pietra Foundation filed a competing petition for probate of a will dated May 17, 2017 and for the appointment of David Berrent to serve as Administrator CTA of that will, as well as a will contest. (Id., ¶ 5 and Exhibit B.) The May 17, 2017 Will named the Eugene La Pietra foundation as the sole beneficiary of said will and appointed Carl as Alejandro’s personal representative, with Eugene and Alwin being named successor personal representatives. (Id.)

In the probate proceedings, on March 30, 2022, Plaintiff filed a competing will contest, which sought denial of probate of the May 17, 2017 Will on the ground that it was expressly revoked by the July 28, 2017 Will. (Id., ¶ 6.) The probate proceedings are still pending. (Id.) Hearings on the competing will contests and appointments are presently set for December 11, 2023 in Department 11 at the Stanley Mosk Courthouse. (Id.)

Here, the parties do not dispute that there is currently no personal representative of Alejandro’s estate. Based on the declaration of Fox in support of the motion, there is a will that exists which appointed Jesus as a beneficiary of Alejandro’s estate. The wills are in dispute in the probate proceedings. At this point in time, the Court cannot determine whether Plaintiff does or does not have standing to bring this action as the probate proceedings are still pending. As stated in the Court’s October 10, 2023 Minute Order, “[o]nce the probate proceedings conclude, this Court can determine whether Plaintiff has standing to bring this action and whether the action should proceed based on that determination.” (10/10/23 Minute Order at p.9.)  

Moreover, when a party files a pretrial motion to dismiss a complaint on standing grounds, “the court may not simply assume the allegations supporting standing lack merit and dismiss the complaint. Instead, the court must first determine standing by treating the properly plead allegations as true.” (Barefoot v. Jennings (2020) 8 Cal.5th 822, 827.) Here, Plaintiff alleges that he is the sole successor in interest to Alejandro’s estate and the sole named beneficiary under Alejandro’s will dated July 28, 2017. (Complaint, ¶ 3.) Taken as true, the allegations of the complaint are indicative of standing.

Accordingly, the Court DENIES the Motion to Dismiss for Lack of Standing WITHOUT PREJUDICE. 

Conclusion

Defendants’ Motion to Dismiss for Lack of Standing is DENIED WITHOUT PREJUDICE.

The Court will set another OSC re: status of the Los Angeles Probate case, 20STPB07984 in consultation with the parties’ calendars.