Judge: Christopher K. Lui, Case: 23STCV17212, Date: 2024-01-10 Tentative Ruling

Case Number: 23STCV17212    Hearing Date: January 10, 2024    Dept: 76

            Plaintiff alleges that Defendant attorney engaged in financial elder abuse by having Plaintiff sign a lien after Plaintiff was declared incapacitated and was suffering from dementia.

Defendant Frank O. Fox demurs to the Complaint.

TENTATIVE RULING          

Defendant Frank O. Fox’s demurrer to the Complaint is SUSTAINED without leave to amend as to the first and only cause of action for Financial Elder Abuse (Welf. & Inst. Code, s 15610.30).

Given the ruling on the demurrer, the motion to strike is MOOT.

The case is hereby ordered dismissed with prejudice.

ANALYSIS

Demurrer

Request For Judicial Notice

            Defendant requests that the Court take judicial notice of the following:

A. Power Of Attorney, dated October 30, 2017, signed by James Jones;

DENIED.

The is evidence extrinsic to the Complaint.

B. Retainer Agreement entered into by James Jones on January 22, 2018, concerning the Wylma Jones Trust;

DENIED. 

The is evidence extrinsic to the Complaint.

C. Deed Of Trust, signed by James Jones on October 29, 2018;

DENIED.

The is evidence extrinsic to the Complaint.

D. The Order, entered on February 22, 2019, in the Wylma Jones Trust, filed in Los Angeles Superior Court, case number 18STPB00618;

GRANTED. Evid. Code, § 452(d)(court records).

E. The Order On Motion To Enter Judgment, entered on July 10, 2019, in the Wylma Jones Trust, filed in Los Angeles Superior Court, case number 18STPB00618;

GRANTED. Evid. Code, § 452(d)(court records). 

F. Minute Order, entered in the Conservatorship of Wylma Shaver Jones Conservatorship, filed in Los Angeles Superior Court, case number 17STPB09040;

GRANTED. Evid. Code, § 452(d)(court records).

G. The Notice Of Ruling entered in the case of Jones v. Shavers, et. al., filed on April 15, 2019, in Los Angeles Superior Court, case number BC 686 884; 

GRANTED. Evid. Code, § 452(d)(court records). 

Meet and Confer

            The Declaration of Frank O. Fox reflects that Plaintiff’s counsel did not respond to meet and confer efforts. This satisfies Civ. Proc. Code, § 430.41(a)(3)(B).

 

Discussion

Defendant Frank O. Fox demurs to the Complaint as follows:

1.         Entire Complaint (First and Only Cause of Action—Financial Elder Abuse, Welf. & Inst. Code, § 15610.30).

            A.        Re: Statute of Limitations.

            Defendant argues that the cause of action for financial elder abuse is time-barred by the four-year statute of limitations set forth in Welf. & Inst. Code § 15657.7. Defendant argues that Plaintiff alleges that the deed of trust attached as Exh. C to the Complaint was signed on October 29, 2018—more than four years prior to the filing of the Complaint on July 21, 2023.

Defendant argues that Fox and Fox stopped representing Plaintiff in the Wyla Jones matter as of July 10, 2019, in the Jones v. Shavers matter as of April 15, 2019, and in the Conservatorship of Wylma Jones as of April 23, 2018—all more than four years before the Complaint was filed in this case.

The Complaint alleges that Defendant was attorney of record for James Jones up to and including January 23, 2019. (Complaint, ¶ 9.)

Welfare and Institutions Code, § 15657.7 provides:

An action for damages pursuant to Sections 15657.5 and 15657.6 for financial abuse of an elder or dependent adult, as defined in Section 15610.30, shall be commenced within four years after the plaintiff discovers or, through the exercise of reasonable diligence, should have discovered, the facts constituting the financial abuse.

Here, the alleged financial abuse is Defendant having Plaintiff sign a fraudulent lien securing Defendant’s legal fees. (Complaint, ¶ 19.) ¶ 9 alleges that Defendant filed a lawsuit to collect his legal fees. That lawsuit—20STCV08922 (RJN Exh. 1) was filed on March 4, 2020. ¶ 8 of that Complaint alleges the existence of a lien via a security instrument, executed. A jury could find that this was the first time Plaintiff Bushnell discovered that Defendant had procured such a lien from Jones and was asserting it. Given the four-year statute of limitations, this action was timely filed on July 21, 2023.

            B.        Re: Another Action Pending.

            Defendant argues that there is another action pending between the same parties on the same matter. Defendant argues that Fox and Fox filed a civil action against Plaintiff for breach of contract and common counts to collect the balance due of $254,225.05 as of February 27, 2020. Defendant argues that no compulsory cross-complaint was filed.

            Defendant’s argument that this action is barred because Plaintiff was required to file a cross-complaint in 20STCV08922 is persuasive. 

            Civ. Proc. Code, § 426.30 provides:= 

(a) Except as otherwise provided by statute, if a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action which (at the time of serving his answer to the complaint) he has against the plaintiff, such party may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded.

 

(b) This section does not apply if either of the following are established:

 

(1) The court in which the action is pending does not have jurisdiction to render a personal judgment against the person who failed to plead the related cause of action.

 

(2) The person who failed to plead the related cause of action did not file an answer to the complaint against him.

 

     (Civ. Proc. Code § 426.30.)

            After Jones’ default and the default judgment was set aside, Jones filed an answer on May 31, 2022. 

Because of the liberal construction given to the statute to accomplish its purpose of avoiding a multiplicity of actions, “transaction” is construed broadly; it is “not confined to a single, isolated act or occurrence … but may embrace a series of acts or occurrences logically interrelated [citations].” (Saunders, supra, 231 Cal.App.2d at p. 336; see also Currie Medical, supra, 136 Cal.App.3d at p. 777.)

In addition, section 426.30 includes a timing element. The related cause of action must be one that was in existence at the time of service of the answer (§ 426.30, subd. (a)); otherwise, the failure to assert it in prior litigation is not a bar under the statute. (Crocker Nat. Bank v. Emerald (1990) 221 Cal.App.3d 852, 864 [270 Cal. Rptr. 699].)

(Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 960.)

            Here, Jones was required to file a compulsory cross-complaint as the alleged financial elder abuse was effectuated through procuring the lien, which was asserted in the Complaint filed in 20STCV08922.

            As such, because Jones failed to file a compulsory cross-complaint in 20STCV08922, he is barred from doing so here. 

            The demurrer to the entire complaint (sole cause of action for financial elder abuse) is SUSTAINED without leave to amend. 

            C.        Re: Failure To Factually Allege The Underlying Events.

 

            Defendant argues that the Complaint fails to allege how Plaintiff was harmed and when the events occurred.

 

            Defendant argues that the deed of trust was never recorded. However, this is a fact extrinsic to the Complaint.

 

            This argument is moot, given the above ruling.

 

            D.        Re: Punitive Damages Not Supported.

 

            A demurrer does not lie to only part of a cause of action or a particular type of damage or remedy. (See Kong v. City of Hawaiian Gardens Redevelopment Agency (2003) 108 Cal.App.4th 1028, 1046; PH II, Inc. v. Superior Court (Ibershof) (1995) 33 Cal.App.4th 1680, 1682.)  The proper procedure is to bring a motion to strike the substantively defective allegation.  (Id. at 1682-83.)

 

Motion To Strike

 

            Given the ruling on the demurrer, the motion to strike is MOOT.

 

The case is hereby ordered dismissed with prejudice.