Judge Ashfaq G. Chowdhury, Case Number: 24NNCV02976, Date: 2025-01-23 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 24NNCV02976, Date: 2025-01-23 Tentative Ruling

Case Number: 24NNCV02976 Hearing Date: January 23, 2025 Dept: E

Case No: 24NNCV02976
Hearing Date: 01/23/2025 – 8:30am

Trial Date: UNSET

Case Name: JAMES MCGRORY, an individual; GERALD MCGRORY, an individual; v. STEVEN J. MCGRORY, an individual; STEVEN J. MCGRORY, Trustee of the McGrory Family Trust an individual; and DOES 1-50 inclusive

[TENTATIVE RULING ON DEMURRER & MOTION TO STRIKE]

PROCEDURAL

Moving Party: Defendant, Steven J. McGrory

Responding Party: Plaintiffs, James and Gerald McGrory

Moving Papers: Notice/Demurrer; Request for Judicial Notice; Proof of Service

Opposition Papers: Opposition

Reply Papers: Reply

Proof of Service Timely Filed (CRC Rule 3.1300(c)): Ok
16/21 Court Days Lapsed (CCP § 1005(b)): Ok
Proper Address (CCP § 1013, § 1013a, § 1013b): Ok

Meet and Confer
A party filing a demurrer “shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., §430.41, subd. (a).) “The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code Civ. Proc., §430.41, subd. (a)(2).)

Failure to sufficiently meet and confer is not grounds to overrule or sustain a demurrer. (Code Civ. Proc., §430.41(a)(4).)

Here, Defendant’s counsel met and conferred. (See Lenz Decl. ¶¶ 4-7.)

RELIEF REQUESTED
“Defendant, Steven J. McGrory (“Defendant”) will and hereby does move the Court for an order sustaining his demurrer to James McGrory’s and Gerald McGrory’s (“Plaintiffs”) Complaint for: 1) Financial Elder Abuse, 2) Intentional Interference with Expected Inheritance, 3) Conspiracy to Defraud, 4) Wrongful Death, 5) Breach of Fiduciary Duty, 6) Declaratory Relief, and 7) Unjust Enrichment (“Complaint”) without leave to amend.

This Demurrer is based upon the Code of Civil Procedure § 430.10, relevant case law, this Notice of Demurrer, the attached Memorandum of Points and Authorities in Support Thereof, the attached Declaration of Attorney Christopher M. Lenz in Support Thereof, the pleadings, and the records and files in this action.”

(Def. Dem. p. 1-2.)

Defendant demurs to Plaintiffs’ Complaint on the following grounds:

Defendant demurs to Plaintiffs’ claim for Intentional Interference with Expected Inheritance (“IIEI”) under Code Civ. Proc. §3294 on the grounds that Plaintiffs have an adequate remedy in probate court and the petition filed by them in probate matter 24STPB08087, based on identical facts, confirms this. See Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1052.

Defendant demurs to Plaintiffs’ cause of action for Constructive Fraud under Code Civ. Proc. §1573 on the grounds that the cause of action is not pled with the requisite specificity and particularity. See Glaski v. Bank of America (2013) 218 Cal.App.4th 1079, 1090.

Defendant demurs to Plaintiffs' cause of action for Wrongful Death under Code Civ. Proc. §377.60 on the grounds that the Complaint fails to state a cause of action as the claim fails to allege pecuniary loss and, alternatively, that the claim is at a minimum uncertain. See Zeller v. Reid (1938) 26 Cal.App.2d 421, 424 and Bowen v. Kizirian (1930) 105 Cal.App. 286, 289.

Defendant demurs to the jurisdiction of this court with respect to the Fifth and Sixth Causes of Action, these claims are exclusively within the jurisdiction of the probate court.

LEGAL STANDARDS FOR DEMURRERS
Demurrer – Sufficiency
A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda, (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters; therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading … is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.)

On demurrer, a trial court has an independent duty to “determine whether or not the … complaint alleges facts sufficient to state a cause of action under any legal theory.” (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 734.) Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

Demurrer – Uncertainty
A special demurrer for uncertainty, CCP section 430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

ANALYSIS
Second Cause of Action – Intentional Interference with Expected Inheritance
Defendant demurs to the IIEI claim on the grounds that Plaintiffs have an adequate remedy in probate court because the petition filed by Plaintiffs in probate matter 24STPB08087 is based on identical facts.

The Court notes that Defendant does not make any arguments that Plaintiff did not allege sufficient facts to constitute a cause of action.

Defendant supports his argument by citing to Beckwith v. Dahl (2012) 205 Cal.App.4th 1039 (Beckwith).

In Beckwith, the Fourth District Court of Appeal decided whether or not a cause of action for IIEI is recognized as a cause of action under the circumstances alleged in Beckwith.

In Beckwith, the trial court in the civil action sustained the demurrer without leave to amend as to the IIEI cause of action. On appeal, the Court of Appeal decided they would recognize a cause of action for IIEI under the circumstances in Beckwith, and thus remanded the matter and granted leave to amend for the IIEI cause of action.

Defendant cites to Beckwith to argue that the tort of IIEI is available only when the aggrieved party has essentially been deprived of access to the probate system.

In Beckwith, when the Court of Appeal was considering whether or not an IIEI cause of action exists, the Beckwith Court cited to Munn v. Briggs (2010) 185 Cal.App.4th 578 (Munn). Beckwith explained why in Munn, where the Fourth District Court of Appeal did not recognize an IIEI action:

The Munn court looked to decisions from other jurisdictions in an attempt to “ ‘balance the competing goals of providing a remedy to injured parties and honoring the strictures of our probate code... .’ ” (Munn, supra, 185 Cal.App.4th at p. 587, 110 Cal.Rptr.3d 783.) The court noted that “[a] majority of the states which have adopted the tort of interference with an inheritance have achieved such a balance by prohibiting a tort action to be brought where the remedy of a will contest is available and would provide the injured party with adequate relief.” (Ibid., quoting Minton, supra, 671 N.E.2d at p. 162.) By applying a similar last recourse requirement to the tort in California, the integrity of the probate system is protected because where a probate remedy is available, it must be pursued. In addition, the only plaintiffs who will be able to utilize the tort are those who lack an adequate probate remedy because of the interference of another. In a sense, the interfering tortfeasor has “obtained the benefit of the testamentary intent rule by committing a tort against a third party... .” (Allen v. Hall (1999) 328 Or. 276, 974 P.2d 199, 203 (Allen ).) Allowing those so harmed to bring a tort action “still would give defendants all the benefits that the testamentary intent rule calls for them to receive. Once possessed of those benefits, however, defendants would be liable to respond in damages for torts that they may have committed—a separate legal inquiry with its own societal justifications.” (Ibid.)

(Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1052.)

Here, the Court will hear argument.

Neither parties’ argument appear to be fully fleshed out.

Defendant is arguing that the IIEI claim is based on only two sets of facts, and those sets of facts have a remedy in the probate matter that Plaintiffs already filed.

In a conclusory fashion, Defendant argues:

Plaintiffs’ claim regarding the real property is adequately addressed by their Probate Petition which seeks to invalidate the most recent amendment to the Trust. (Cite to Probate Pet. pp. 9 - 11; Request for Judicial Notice). If the Plaintiffs’ Probate action is successful, they will receive their “expected” interest in the real property. Similarly, Plaintiffs’ claim regarding the misappropriated funds can be adequately pursued by a claim under Probate Code § 850. If they believe that these funds rightly belong to the Decedent’s estate, then a successful Probate Code § 850 claim will see these funds returned and their purported “inheritance” restored. The fact that the Plaintiffs may have failed to make such a claim in their current Probate Petition does not mean they do not have an adequate remedy in Probate. Thus, the claim for Intentional Interference with Expected Inheritance is improper and should be dismissed with prejudice.

(Def. Dem. p. 8.)

Here, assuming the rule is what Defendant says it is (that IIEI is available only when there is no adequate remedy in probate for the IIEI claim) the Court is not clear as to how Defendant’s argument that Plaintiffs’ claim already has a remedy in the probate matter.

Therefore, on the one hand, the Court wonders if it should overrule the demurrer because Defendant did not explain clearly (in the Court’s opinion) why this demurrer should be sustained.

On the other hand, Plaintiffs’ Opposition on this argument is borderline nonexistent.

Plaintiffs cite Beckwith out of context, and even citing Beckwith out of context, Plaintiffs’ argument is not entirely clear.

Further, Plaintiffs don’t explain how they do not have an adequate remedy in probate court—which would respond to Defendant’s argument.

The Court to hear argument

Third Cause of Action – Constructive Fraud

As a preliminary matter, the body of the Complaint labels the third cause of action as “Constructive Fraud-Civil Code § 1573.”

Tindell v. Murphy describes what must be proved for a constructive fraud cause of action:

(1) a fiduciary relationship, (2) nondisclosure, (3) intent to deceive, and (4) reliance and resulting injury. Constructive fraud is any breach of duty that, without fraudulent intent, gains an advantage to the person at fault by misleading another to his prejudice. (Civ. Code, § 1573; Stokes v. Henson (1990) 217 Cal.App.3d 187, 197, 265 Cal.Rptr. 836.) Like an action for fraud, constructive fraud must be pled with specificity. (Schauer v. Mandarin Gems of Cal., Inc. (2005) 125 Cal.App.4th 949, 960-961, 23 Cal.Rptr.3d 233.)

(Tindell v. Murphy (2018) 22 Cal.App.5th 1239, 1249-50.)

Although Defendant cites Tindell, which does state that constructive fraud must be pled with specificity, Defendant then cites to Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 to argue that the specificity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.

Based on Defendant’s argument, the Court was initially inclined to overrule the demurrer because Defendant’s citation to Lazar with respect to how, when, where, to whom, and by what means the representations were tendered does not seem applicable because Lazar does not deal with a cause of action for constructive fraud.

Further, simply based on the elements in Tindell, Tindell does not list a misrepresentation as an element for a cause of action for constructive fraud.

Confusingly, in Opposition, Plaintiffs cite the elements that must be alleged in a fraud cause of action as laid out in Lazar, despite the fact that Lazar does not deal with constructive fraud.

Further, Plaintiffs then cite federal cases and seem to concede that Defendant is correct to argue that fraud allegations must be accompanied by who, what, when, where, and how.

In light of all of the above, the Court SUSTAINS Defendant’s demurrer to the constructive fraud cause of action with leave to amend granted.

To the extent that Plaintiffs are alleging a constructive fraud cause of action, Plaintiffs do not appear to allege the second element – nondisclosure. It is entirely unclear based on the allegations in ¶¶ 57-62 what the nondisclosure is. Therefore, at the very least, Plaintiffs did not sufficiently allege the nondisclosure element of the constructive fraud cause of action.

To the extent that Plaintiffs intended their constructive fraud cause of action to be a fraud (intentional misrepresentation) cause of action under the elements of fraud as stated in Lazar, Plaintiffs did not meet the specificity requirements for that cause of action.

It is entirely unclear what the misrepresentations are in ¶¶ 57- 62 of the Complaint. Further, the specificity requirements of how, when, where, to whom, and by what means the representations were tendered do not appear to be in ¶¶ 57-62 of the Complaint.

The Opposition appears to cite to different paragraphs of the Complaint not located within ¶¶ 57-62 to be the basis for the misrepresentations. The Opposition appears to rely on the fact that prior allegations in the Complaint were incorporated into ¶¶ 57-62.

While ¶ 57 does in fact incorporate prior paragraphs, it is still entirely unclear what the misrepresentations are and how Plaintiffs met the specificity requirements under Lazar based on reading Plaintiffs’ Opposition, and based on reading Plaintiffs’ Complaint.

Therefore, Plaintiffs also failed to state facts sufficient to constitute a cause of action if Plaintiffs intended their constructive fraud claim to be a claim for fraud (misrepresentation).

If Plaintiffs file an amended Complaint, the Court encourages Plaintiffs to allege all elements required for the fraud cause of action within the section of the Complaint pertaining to that cause of action so that the Court can see if Plaintiffs are alleging each element of the cause of action. For example, in the instant Complaint, it is entirely unclear what the misrepresentations are for the fraud cause of action because Plaintiffs simply refer to “The representations” in ¶ 58.

The Court also encourages Plaintiffs to be clear as to if they are bringing a cause of action for fraud (intentional misrepresentation) or constructive fraud, because those causes of action appear to have different elements.

Fourth Cause of Action – Wrongful Death

Defendant’s argument as to why the wrongful death cause of action should be sustained is unclear.

Defendant cites the elements of a wrongful-death cause of action under Quiroz v. Seventh Ave. Center, “The elements of the cause of action for wrongful death are the tort (negligence or other wrongful act), the resulting death, and the damages, consisting of the pecuniary loss suffered by the heirs. [Citations.]” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263.)

Defendant then goes on to argue:

Plaintiffs’ allegations fail to state a claim because they fail to make any showing that Defendant was a “primary caregiver” to Decedent. Simply being named an agent under an advanced healthcare directive does not make the agent the “primary caregiver” of the principal. The agent’s authority is constrained by the terms of the advanced healthcare directive as well as related law governing healthcare decisions. Notably, Plaintiffs failed to allege that Defendant was acting as the agent under the advanced healthcare agent at any time relevant to the Complaint. Further, while not admissible in a demurrer, Plaintiffs have been provided with documentation from Defendant demonstrating that Decedent met with her healthcare providers by herself and made her own healthcare decisions through 2023. Because Decedent was managing her own healthcare, Defendant logically could not have taken any action or inaction which could give rise to a wrongful death claim with respect to Decedent by virtue of his nomination as an agent under an advanced healthcare directive.

Furthermore, Plaintiffs fail to establish that there was any enforceable agreement among the McGrory family which entrusted Defendant with Decedent’s care as Plaintiffs fail to establish any of the required elements of an agreement. (See, e.g., Civ. Code § 1550.) Without a showing of what amounts to more than an alleged informal agreement among family members to take care of Decedent, there cannot be a showing that Defendant had a duty of care relating to Decedent. Further, even if there was an enforceable agreement between Defendant and Plaintiffs regarding Decedent’s care, the mere breach of a contract does not create a cause of action for wrongful death against the breaching party.

(Def. Dem. p. 10.)

The Court does not find Defendant’s arguments availing.

Defendant cites the elements of a wrongful death cause of action. Despite citing these elements, It is unclear how Defendant is arguing that Plaintiffs did not allege the elements of a wrongful death cause of action. For example, Defendant discusses how Plaintiffs did not make any showing that Defendant was a “primary caregiver” to decedent. First, it’s entirely unclear where Defendant is getting this “primary caregiver” standard from. Second, Plaintiffs do not have to make a showing at the pleading stage; the pleading stage does not deal with proof of the allegations.

Defendant’s demurrer to the fourth cause of action for wrongful death is OVERRULED.

Fifth (Breach of Fiduciary Duty) and Sixth (Declaratory Relief)

Defendant demurs to the jurisdiction of this court with respect to the Fifth and Sixth Causes of Action under the theory that these claims are exclusively within the jurisdiction of the probate court.

Defendant appears to be arguing that the fifth and sixth causes of action in the Complaint are in the exclusive jurisdiction of the probate court because the fifth and sixth causes of action in the civil action seek the same relief in both the probate court and the civil action.

Defendant first cites to Probate Code § 17200 to argue that probate courts have exclusive jurisdiction over proceedings concerning the internal affairs of trusts, such as determining the validity of trust provisions, ascertaining beneficiaries, and compelling redress of a breach of trust.

The Court notes that the plain language of Probate Code § 17200 does not mention the phrase “exclusive jurisdiction.”

Aside from Probate Code § 17200, Defendant appears to rely on Estate of Bowles (2008) 169 Cal.App.4th 684, 695 and Barefoot v. Jennings (2020) 8 Cal.5th 822, 828 to argue that the fifth and sixth causes of action must be dismissed because they fall within the exclusive jurisdiction of the probate court.

The Court will hear argument.

Problematic with Defendant’s citation to Barefoot v. Jennings (2020) 8 Cal.5th 822 is that that case did not address the situation here, where Defendant is arguing that if the claims in the probate matter and the civil matter seek the same relief, the civil matter issues must be addressed in the probate court instead of the civil department. Barefoot did not deal with a petition in probate court and a claim in the civil department. Barefoot dealt with standing in probate court and held that when a plaintiff claims to be a rightful beneficiary of a trust if challenged amendments are deemed invalid, plaintiff has standing to petition the probate court under section 17200. (Barefoot at 828.)

As to Defendant’s reliance on Estate of Bowles (2008) 169 Cal.App.4th 684 (Bowles), Bowles seems to be partially on point, but also partially not on point.

In Bowles, plaintiff filed two separate actions concerning a trust, and both actions arose out of Ms. Bowles alleged breaches of trust. Plaintiff filed a section 17200 petition in the probate department of the superior court seeking to surcharge Ms. Bowles’s estate for alleged fiduciary duty breaches in relation to the trust, and plaintiff also filed a civil complaint in the superior court seeking damages against a third party for allegedly inducing Ms. Bowles to breach the trust.

The Court of Appeal ruled that the plaintiff had standing for the civil action.

With respect to the probate action, the Court of Appeal noted:

At issue here are two separate proceedings. The first proceeding, the first amended section 17200 petition, sought to redress Ms. Bowles's alleged breaches of trust, which concerns the internal affairs of the trusts. The second proceeding is the civil complaint, which is for damages against third persons and does not directly concern the trust's internal affairs. (Harnedy v. Whitty, supra, 110 Cal.App.4th at p. 1345, 2 Cal.Rptr.3d 798.) The probate court has exclusive jurisdiction over the first amended section 17200 petition concerning the internal affairs of the trust. But the probate court possesses concurrent jurisdiction of the complaint, which seeks redress against third persons. (§ 17000; In re Marriage of Perry (1997) 58 Cal.App.4th 1104, 1111, 68 Cal.Rptr.2d 445 [family court had jurisdiction over child support modification matter which was, in substance, litigation commenced by a creditor of the trust, not a proceeding concerning the trust's internal affairs].)

(Estate of Bowles (2008) 169 Cal.App.4th 684, 696.)

While Bowles, mentioned how the probate court had exclusive jurisdiction over the 17200 petition concerning internal affairs of the trust, Bowles does not address Defendant’s argument – that if the claims in the probate matter and the civil matter seek the same relief, the civil matter issues must be addressed in the probate court instead of the civil department, and the civil department causes of action must be dismissed.

Plaintiffs’ Opposition is unhelpful with respect to Bowles.

Further, Bowles noted:

We find the pertinent question is whether the civil action should be assigned to the probate department in which the first amended section 17200 petition is pending. Further, that question must be determined, on remand, under the superior court's local rules governing related probate and non-probate cases. Los Angeles County Superior Court Local Rules, rule 10.15(b), which is part of the probate rules, states, “Relating non-probate cases to probate cases is governed by Rule 7.3(f) of the Los Angeles Superior Court Rules.” Local rule 7.3(f) sets forth the procedure to be followed in order that a civil case can be ordered related to another case because the cases: “(a) Arise from the same or substantially identical transactions, happenings or events; or [¶] (b) Require a determination of the same or substantially identical questions of law and/or fact; or [¶] (c) Are likely for other good reasons to require substantial duplication of labor if heard by different judges. ....” The probate court has the power to determine the whole controversy including the civil action. **131 (Estate of Baglione (1966) 65 Cal.2d 192, 196–197, 53 Cal.Rptr. 139, 417 P.2d 683; Estate of Heggstad (1993) 16 Cal.App.4th 943, 951–952, 20 Cal.Rptr.2d 433.) But the authority of a probate department to resolve the merits of the civil action along with the first amended section 17200 petition was not a proper basis for sustaining the demurrer to the complaint.

(Estate of Bowles (2008) 169 Cal.App.4th 684, 696.)

Here, the Court would like the parties to address whether or not Defendant or Plaintiffs should have resolved this issue regarding the fifth and sixth causes of action allegedly seeking the same relief in both actions pursuant to local superior court rules.

Further, Plaintiffs’ Opposition argues that Plaintiffs seek different remedies to similar causes of action in the civil and probate courts. The Court would like Plaintiffs to explain how they are seeking different remedies in the different courts.

The Court notes that if Plaintiffs or Defendant seek to have the civil case consolidated in the probate action, the parties need to follow the applicable local superior court rules, as reference to local rule 7.3(f) in Bowles may no longer be applicable, and a new rule may govern.

The Court will hear argument.

First Cause of Action and Seventh Cause of Action
Although Defendant’s notice of demurrer indicated that Defendant was demurring to the first cause of action for financial elder abuse and the seventh cause of action for unjust enrichment, Defendant did not provide any arguments as to those two causes of action.

Defendant’s demurrer to the first and seventh causes of action are OVERRULED.

Request for Judicial Notice
Defendant’s request for judicial notice of Exhibit A is granted.