Judge Bruce G. Iwasaki

Department 58

Hearing Date: July 16, 2024

Case Name: Mirna Cuellar v. Fok Family Trust, et al.

Case No.: 22STCV04496

Matter: Demurrer to Cross Complaint

Moving Party: Plaintiffs Mirna Cuellar and Hector Cuellar

Responding Party: Defendants Fok Family Trust and May Fok

Tentative Ruling: The Demurrer to the Cross-complaint is overruled.

This action arises out of an employment dispute.

Plaintiffs Mirna Cuellar and Hector Cuellar sued Defendant May Fok in her individual capacity and as trustee of the Fok Family Trust for breach of contract and various Labor Code violations, such as failure to pay minimum wage and waiting time penalties. Plaintiff Mirna Cuellar alleges she worked as the property manager of an apartment building (Property) pursuant to a written agreement. Plaintiff Hector alleges he entered into an oral agreement to provide handyman services for the Property but has not been paid any of his wages.

On March 21, 2022, Plaintiffs filed a First Amended Complaint. The parties stipulated to allow Plaintiffs to file a Second Amended Complaint.

On January 12, 2023, Defendants May Fok, individually and trustee of the Fok Family Trust, filed a demurrer to the Second Amended Complaint. The court sustained the demurer in its entirety with leave to amend. On March 14, 2023, a Third Amended Complaint was filed. On May 10, 2023, Defendants filed a demurrer to the Third Amended Complaint. The court overruled the demurrer in its entirety.

On February 27, 2024, Defendants May Fok, individually and trustee of the Fok Family Trust, filed a Cross-complaint.

Plaintiffs Mirna Cuellar and Hector Cuellar, now demur to the second and fourth causes of action alleged in the Cross-complaint. Defendants filed an opposition. Plaintiffs filed a reply.

The Court overrules the demurrer to the Cross-Complaint in its entirety.

Evidentiary Issues

Plaintiffs’ request for judicial notice of Exhibit A is granted. The court takes judicial notice of the document, but not to the facts stated therein. (Evid. Code, § 452, subd. (d).)

Legal Standard for Demurrers

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) 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 applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party 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 are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

Meet and Confer

Plaintiff’s counsel states that he met and conferred with counsel prior to the filing of the demurrer. (Declaration of Everett J. Gotfredson (“Gotfredson Decl.”) ¶ 2.) The Court notes that counsel fails to provide any facts as to how the parties met and conferred. Therefore, the meet and confer requirement was insufficient. Nevertheless, the court will analyze the merits below.

Second Cause of Action – Breach of Fiduciary Duty

The demurrer argues that Defendants/Cross-complainants failed to state a claim for breach of fiduciary duty because they lack standing as they did not allege that Plaintiffs were employees. Moreover, in pleadings and in discovery responses, Defendant May Fok has repeatedly insisted that the Cuellars were never employees of either May or Clifford Fok, or of the Fok Family Trust. Defendants argue that the Second Cause of Action for Breach of Fiduciary Duty alleges facts sufficient to state a cause of action against the Plaintiffs because it is undisputed that Plaintiffs are claiming that they were employees of Cross-Complainant, The Fok Family Trust. Moreover, there is standing to sue since Cross-Complainant alleges that she is both a trustee and beneficiary of the Fok Family Trust at paragraph 1 of the Cross-Complaint. Additionally, the second cause of action allegations are not inconsistent with cross complainant's verified discovery responses and are based on alternative legal theories applicable to Plaintiff's claims that they were the property manager and the handyman for the Fok Family Trust. In reply, Plaintiffs argues that Defendants inconsistently plead the relationship between Plaintiffs and Defendants and thus fail to state sufficient facts for this cause of action.

To establish a cause of action for breach of fiduciary duty, plaintiff must plead “(1) existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach.” (Gutierrez v. Girardi (2011) 194 Cal. App. 4th 925, 932.) A fiduciary relationship requires that a relationship exist between parties to a transaction wherein one of the parties is duty bound to act with the utmost good faith for the benefit of the other party. (Wolf v. Superior Court (2003) 107 Cal.App.4th 25, 29.) A relationship ordinarily exists when “a con¿dence is reposed by one person in the integrity of another, and . . . the party in whom the con¿dence is reposed, if he voluntarily accepts or assumes to accept the con¿dence, can take no advantage from his acts relating to the interest of the other party without the latter’s knowledge or consent.’” (Ibid.)

Here, the parties dispute standing to bring the claim. The Cross Complaint alleges “Cross-Complainant, May Fok (hereinafter “Cross-Complainant”), is an individual residing in Walnut Creek, CA. Cross-Complainant is a beneficiary and Successor trustee of the Fok Family Trust.” (Cross Compl., ¶ 1.)

The Court notes that the determination of standing in this case is a purely factual issue. As such whether or not Plaintiffs were employees or not is beyond the scope of the demurrer. On its face, the Cross Complaint establishes a fiduciary relationship based on Defendants status as a beneficiary and Successor trustee.

Thus, the Court finds that a breach of fiduciary duty has been adequately alleged.

The Court overrules the demurer as to the second cause of action.

Fourth Cause of Action – Financial Elder Abuse

In demurring to the fourth cause of action by Defendants, Plaintiff argues this claim fails because the Cross-complaint does not allege that the cause of action has been assigned to her. Defendants argue that the Fourth Cause of Action For Elder Abuse states facts sufficient to constitute a cause of action because Defendants have standing to bring the claim as a trustee and beneficiary of the Fok Family Trust. In reply, Plaintiffs argue that May Fok does not identify her grounds of standing for the claims of torts committed against Clifford Fok. She has alleged that she is the successor trustee (and a beneficiary) of an Inter Vivos Trust of which Mr. Fok was the Trustee, which is permissible; but there is no allegation that the "elder" whose "abuse" gives rise to a cause of action is anyone other than Clifford Fok, or that the claim passed to anyone other than the estate of Clifford Fok.

The elements of a cause of action for financial elder abuse are (1) that defendant took, hid, appropriated, obtained or retained the property of the elder; (2) that the plaintiff is 65 years of age or older; (3) the defendant took, hid, appropriated, obtained or retained the property for wrongful use, intent to defraud, or by undue influence; (4) that plaintiff was harmed; and (5) that defendant’s conduct was a substantial factor is causing plaintiff’s harm. (See CACI 3100. Financial Abuse, Essential Factual Elements (Welf. & Inst. Code, §15610.30).)

As discussed above, the Court finds that the allegations by Defendants are sufficient to state a claim. The court overrules the demurer as to the fourth cause of action.

Conclusion

The demurrer to the Cross-complaint is overruled in its entirety. Plaintiffs and Cross-defendants shall file and serve their Answer to the Cross-complaint on or before August 6, 2024.