Judge: Christian R. Gullon, Case: 23PSCV02644, Date: 2025-03-10 Tentative Ruling

Case Number: 23PSCV02644    Hearing Date: March 10, 2025    Dept: O

Tentative Ruling

(1)   Defendants Maria Del Consuelo Cervantes and Maria Mercedes Cervantes DEMURRER TO PLAINTIFF’S FIRST COMPLAINT is CONTINUED; Plaintiff is ordered to file a notice of related cases (there is a probate case, a UD action, and family law cases).

(2)   Defendants Maria Del Consuelo Cervantes’ and Maria Mercedes Cervantes’ Motion to Strike Portions of the Plaintiff’s First Amended Complaint is CONTINUED (for the same reasons as the demurrer).

Background

This case arises from alleged financial and physical elder abuse. Plaintiff GUADALUPE CERVANTES, an individual, and as successor in interest in the Estate of DOMINGO CERVANTES[1] alleges the following against her two daughters, MARIA DEL CONSUELO CERVANTES and MARIA MERCEDES CERVANTES, and A&R Management, Inc. (“A&R”), A: 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; kidnapping Plaintiff’s dog; and calling the police on Plaintiff’s son, Domingo Cervantes, Jr. (“Domingo”). As for the subject real property, in 2005, Plaintiff at the behest and undue influence of Defendants “unknowingly” transferred the property to her late husband as his sole and separate property. (First Amended Complaint (FAC) ¶19.) Ultimately, after two other transfers, Defendant Maria Del Consuelo Cervantes became the sole owner in January 2022. Thereafter, Defendant Del Consuelo Cervantes granted the property to a management company, Defendant A&R, 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.” (FAC ¶27.)

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

1.     Elder Abuse

2.     Assault

3.     Battery

4.     Violation Of Penal Code §422

5.     Violation Of Penal Code §182

6.     Harassment

7.     Intentional Interference With Prospective Economic Advantage

8.     Quiet Title

9.     Constructive Trust

On November 17, 2023, Defendants a demurrer.

On January 24, 2024, the court sustained the demurrer with leave to amend. The court’s ruling noted that the “various COAs could use clarification and/or additional sufficient facts.” Additionally, despite numerous attempts by Defense Counsel to meet and confer, Plaintiff’s Counsel did not return Defense Counsel Roger’s emails or calls. With that, the court continued the hearing but encouraged the party to file a FAC prior to the continued hearing date.

On February 14, 2024, Plaintiff filed a FAC for:

1.     Elder Abuse

2.     Assault

3.     Battery

4.     Intentional Infliction Of Emotional Distress

5.     Intentional Interference With Prospective Economic Advantage

6.     Quiet Title

7.     Constructive Trust

On May 22, 2024, the parties attended a CMC where they informed the court they are in talks of a settlement.

On February 10, 2025, Defendants filed the instant demurrer with a motion to strike.

On February 27, 2025, Defendants filed notices that they did not receive oppositions from Plaintiff.

Discussion

The matter is continued as Plaintiff is to file a notice of related cases.

According to the demurrer, Plaintiff is currently disputing title to the Property in the matter of In re Domingo Cervantes (Case No 22STPB08312). There is currently an OSC Re Petition for Final Distribution or Status Report scheduled for January 6, 2026, at 8:30 am. Accordingly, it appears Probate Court has jurisdiction over Plaintiff’s duplicative action since it involves the very same property that forms the crux of this instant lawsuit. (See Cal. Rules of Court Rule 3,300, subd. (3) [“A pending civil case is related to another pending civil case… if the cases …Involve claims against, title to, possession of, or damages to the same property.”].)

But that is not the only related case. According to the FAC, on 3/14/23, A&R filed an unlawful detainer action for nonpayment of rent against Plaintiff in case 23VVCUD00528. Furthermore, Plaintiff filed a Request for Restraining Order on March 8, 2023 against both daughters in the East District of this Court in Case No. 22PSRO01325 (Guadalupe Cervantes v. Maria Del Consuelo Cervantes) and Case, No. 22PSRO01326 (Guadalupe Cervantes v. Maria Mercedes Cervantes) based upon their violent assault, battery, harassment, manipulation and intimidation. (FAC ¶18.)

With the foregoing, CRC Rule 3.300 subdivision (h) appears to apply:

If all the related cases have been filed in one superior court, the court, on notice to all parties, may order that the cases, including probate and family law cases, be related and may assign them to a single judge or department. In a superior court where there is a master calendar, the presiding judge may order the cases related. In a court in which cases are assigned to a single judge or department, cases may be ordered related as follows: (A) Where all the cases listed in the notice are unlimited civil cases, or where all the cases listed in the notice are limited civil cases, the judge who has the earliest filed case must determine whether the cases must be ordered related and assigned to his or her department …(C) Where the cases listed in the notice contain a probate or family law case, the presiding judge or a judge designated by the presiding judge must determine whether the cases should be ordered related and, if so, to which judge or department they should be assigned.

Therefore, the matter is continued until a determination is made as to whether the cases are related.