Judge: Christian R. Gullon, Case: 23PSCV02644, Date: 2024-01-24 Tentative Ruling

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Case Number: 23PSCV02644    Hearing Date: January 24, 2024    Dept: O

Tentative Ruling

Defendants Maria Del Consuelo Cervantes and Maria Mercedes Cervantes DEMURRER TO PLAINTIFF’S COMPLAINT is CONTINUED to THURSDAY, FEBRUARY 15, 2024 at 10 AM because Plaintiff is ordered to meet and confer with Defendants. Should Plaintiff elect to file a FAC prior to the 2/15/24 hearing date (rendering the instant demurrer moot), the court requests Defendants remove the demurrer at least 5 court days before the hearing. Should Plaintiff choose not to file a FAC before the continued hearing date, Plaintiff may not file an opposition as the time to file an opposition has passed.

Background

This case relates to elder abuse. Plaintiff GUADALUPE CERVANTES, an individual, and on behalf of the Marital Estate of DOMINGO CERVANTES[1] AND GUADALUPE CERVANTES alleges the following against her two daughters, Defendants MARIA DEL CONSUELO CERVANTES, an individual, MARIA MERCEDES CERVANTES: Plaintiff, who is 79 years old, has been physically and mentally abused by her daughters. Incidents include attacking Plaintiff and pulling on Plaintiff’s arm (causing bruising) when Plaintiff attempted to a remove a “no trespass” sign that Defendants illegally placed on Plaintiff’s property; placing surveillance cameras on Plaintiff’s property; and kidnapping Plaintiff’s dog. As for the subject real property, in 2005, Plaintiff, at the behest and undue influence of Defendants, transferred the property to her late husband. Ultimately, after two other transfers, Defendant Del Consuelo Cervantes became the sole owner in January 2022. Thereafter, Defendant Del Consuelo Cervantes granted the property to a management company, who has now filed a UD action against Plaintiff. In short, Plaintiff alleges that her “Defendant daughters have been plotting to take Plaintiff’s home from Plaintiff and her husband once they became elderly.” (Complaint ¶26.)

On August 29, 2023, Plaintiff filed suit against Defendants asserting the following causes of action:

On November 17, 2023, Defendants filed the instant demurrer.

On January 16, 2024, Defendants filed a ‘Notice Of Non-Receipt Of Opposition To Defendants’ Demurrer To Plaintiff’s Complaint.’

Discussion

Defendants demur to the 1^st COA for Elder Abuse; 4^th COA for Violation of Penal Code § 422; 5^th COA for Violation of Penal Code § 182; 6^th COA for harassment; 7^th COA for Intentional Interference with Prospective Economic Advantage; 8^th COA for Quiet Title; and 9^th COA for Constructive Trust on the grounds that the pleading fails to state sufficient facts and uncertainty.

Generally, while the court would offer a ruling on the merits of the demurrer, the court is persuaded by various arguments advanced by Defendants.[2] For example, Defendants aver that at the time Plaintiff is making certain allegations (e.g., when she was removed from title in 2005), she was not an elder (60, not 65); thus, she would lack standing to sue for financial elder abuse. Related to the property, Plaintiff admits that she does not hold title to the property such that if anybody is claiming an interest adverse to the Plaintiff it would be A&R Management, Inc., not Defendants. Moreover, Plaintiff cites to various penal codes, but a violation of a state statute does not necessarily give rise to a private cause of action. Furthermore, it is unclear whether harassment (6^th COA) is a COA.

All in all, the various COAs could use clarification and/or additional sufficient facts. This is the very purpose of meet and confer: to discuss purported defects in a pleading to allow for amendment prior to court intervention. However, despite numerous attempts by Defense Counsel to meet and confer, Plaintiff’s Counsel has not returned Defense Counsel Roger’s emails or calls. (See Defense Counsel Rogers’ Declaration.)

Conclusion

Based on the foregoing, the demurrer is CONTINUED to 2/15/24 at 10 AM.