Judge: Cynthia A Freeland, Case: 37-2022-00041985-CU-MC-NC, Date: 2023-08-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - August 07, 2023

08/08/2023  08:30:00 AM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Misc Complaints - Other Demurrer / Motion to Strike 37-2022-00041985-CU-MC-NC LONG VS. AMERICAN GOLF CORPORATION [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 07/17/2023

Defendants American Golf Corporation ('American Golf'), Capstone Gg Country Club, LLC ('Capstone'), Petra Fuel Company ('Petra'), and Sunlight Townhome, LLC ('Sunlight' and, together with American Golf, Capstone, and Petra, 'Defendants')'s demurrer to Plaintiffs Jeanne L. Long and Peter W. Stanley (collectively, 'Plaintiffs')'s First Amended Complaint (the 'FAC') is sustained.

Initially, it is well-settled that 'points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.' Balboa Ins. Co. v. Aguirre (1983) 149 Cal. App. 3d 1002, 1010. In this case, Defendants, for the first time in their reply, expanded the scope of the demurrer to include, in addition to their challenge to the seventh cause of action, challenges to the inclusion of: (1) Sunlight and Petra in any cause of action, let alone the seventh cause of action (which was only addressed in passing on page 2, ll. 21-25 of the demurrer), and (2) Capstone as a defendant in any of the alleged torts because Capstone is not the owner of the El Camino Country Club Golf Course (the 'Golf Course').

To the extent that Defendants challenge the inclusion of Sunlight and Petra, the court has the ability to control the proceedings and monitor compliance with its previous orders. In this case, there can be no doubt that Plaintiffs, in filing the FAC, exceeded the scope of the court's May 25, 2023 ruling by including Sunlight and Petra in the first, third, fifth and seventh causes of action as alleged in the FAC. More specifically, as courts have explained, '[i]t is the rule that when a trial court sustains a demurrer with leave to amend, the scope of the grant of leave is ordinarily a limited one. It gives the pleader an opportunity to cure the defects in the particular causes of action to which the demurrer was sustained, but that is all.' Community Water Coalition v. Santa Cruz County Local Agency Formation Com. (2011) 200 Cal. App. 4th 1317, 1329. 'The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.' Harris v. Wachovia Mortgage, FSB (2010) 185 Cal. App. 4th 1018, 1023. Furthermore, leave to amend a complaint does not constitute leave to amend to add a new defendant. See People ex rel. Dept. Pub. Wks. v. Clausen (1967) 248 Cal. App. 2d 770, 785. Given that DOES were not identified as parties to the first, third, fifth and seventh causes of action asserted in the original Complaint, their inclusion in the FAC in these same causes of action is the equivalent of adding new parties without permission and/or amending causes of action that had not previously been the subject of a demurrer. California Code of Civil Procedure ('CCP') § 436(a) provides that a court, upon a motion made under CCP § 435, or at any time in its discretion, may strike any improper matter asserted in a pleading. See Cal. Code Civ. P. § 436(a). Given that Plaintiffs did not seek leave of court (nor was it provided) to add Sunlight and Petra to the first, third, fifth, or seventh causes of action, the court strikes the allegations in those causes of action as they relate to Sunlight and Petra only.

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2994115 CASE NUMBER: CASE TITLE:  LONG VS. AMERICAN GOLF CORPORATION [IMAGED]  37-2022-00041985-CU-MC-NC To the extent that Defendants argue, for the first time in their reply, that Capstone is not the registered owner of the Golf Course and, therefore, cannot be liable in tort to Plaintiffs, the court must disregard this argument, at least for the demurrer's purposes. Plaintiffs have not been afforded appropriate time to respond to this new argument, and due process would be forsaken if the court were to proceed any other way.

Procedural History On October 18, 2022, Plaintiffs filed their original Complaint. See ROA No. 1. Although ¶ 6 of the Complaint identified as potential parties DOES 1 through 50, no DOES were named as parties in any specific cause of action. On January 6, 2023, American Golf and Capstone filed their demurrer to the seventh cause of action for financial elder abuse as alleged in the Complaint. See ROA No. 12. On May 25, 2023, the court sustained American Golf's and Capstone's demurrer and granted Plaintiffs leave to amend their seventh cause of action. See ROA No. 57. On May 31, 2023, Plaintiffs filed two Amendments to the Complaint, naming Sunlight and Petra as DOES 1 and 2, respectively. See ROA Nos. 58, 59.

On June 5, 2023, Plaintiffs filed the FAC, in which they added various paragraphs in connection with their seventh cause of action for financial elder abuse and in which they identified Sunlight and Petra as Defendants specifically in connection with the first cause of action for nuisance (count 1), third cause of action for trespass (count 1), fifth cause of action for negligence (count 1), and seventh cause of action for financial elder abuse. See ROA No. 61. On July 17, 2023, Defendants filed the instant demurrer to the FAC, particularly the seventh cause of action for financial elder abuse. See ROA No. 80. Although containing what can only be presume to be a typographical error, the scope of the demurrer is limited to the seventh cause of action. More specifically, Defendants argue: The first cause of action for Breach of Contract fails pursuant to Code of Civil Procedure § 430.10(e) on the following grounds: the First Amended Complaint is devoid of factual allegations as to a purported financial abuse of the Plaintiffs by the Defendants, thus it does not allege facts sufficient to constitute a cause of action. Specifically, there is no particularized claim of a taking and/or intent to defraud and/or wrongful use of Plaintiffs' property.

See ROA No. 80, p. 4, ll. 9-14 (emphasis added to highlight the error as there is no cause of action for breach of contract). On July 26, 2023, in accord with the court-ordered briefing schedule (see ROA No.

72), Plaintiffs filed their opposition to the demurrer. See ROA No. 93. On July 31, 2023, Defendants filed their reply. See ROA No. 97. On August 4, 2023, Plaintiffs filed their surreply. See ROA No. 99.

Legal Analysis A demurrer tests the legal sufficiency of a pleading. See McKell v. Washington Mutual, Inc. (2006) 142 Cal. App. 4th 1457, 1469. When reviewing a demurrer, the court 'give[s] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.' Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. The court 'treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law.' Durell v. Sharp Healthcare (2010) 183 Cal. App. 4th 1350, 1358. The court's analysis is limited to the complaint, exhibits attached to the complaint and incorporated by reference, and matters properly subject to judicial notice. See Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal. App. 4th 659, 665; Thorburn v. Department of Corrections (1998) 66 Cal. App. 4th 1284, 1287-1288; Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.

The demurrer to the seventh cause of action for financial elder abuse under California Welfare & Institution Code ('CWIC') §§ 15610.30 and 15657.5 is sustained. Under CWIC § 15610.30(a), financial abuse of an elder occurs when a person or entity does any of the following: Calendar No.: Event ID:  TENTATIVE RULINGS

2994115 CASE NUMBER: CASE TITLE:  LONG VS. AMERICAN GOLF CORPORATION [IMAGED]  37-2022-00041985-CU-MC-NC (1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent for a wrongful use or with intent to defraud, or both.

(2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.

(3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Section 15610.70.

Cal. Welf. & Inst. Code § 15610.30(a). For purposes of CWIC § 15610.30(a), '[a] person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.' Cal. Welf. & Inst. Code § 15610.30(b). Moreover, 'a person or entity takes, secretes, appropriates, obtains, or retains real or personal property when an elder or dependent adult is deprived of any property right, including by means of an agreement, donative transfer, or testamentary bequest, regardless of whether the property is held directly or by a representative of an elder or dependent adult.' Cal. Welf. & Inst. Code § 15610.30(c).

The court finds that the FAC fails to state facts sufficient to constitute a cause of action for financial elder abuse. The FAC alleges that Plaintiffs are over the age of 65 years old and own real property located at 3118 Camino Crest Drive, Oceanside, CA 92054 ('Plaintiffs' Property'). See FAC, ¶¶ 1-2, 11, 93.

Capstone owns the Golf Course located at 2302 Vista Way, Oceanside, CA 92054. Ibid., ¶¶ 4, 12.

American Golf is a golf course management company in charge of managing, maintaining, and operating the Golf Course. Ibid., ¶¶ 3, 13. Plaintiffs' Property is located adjacent to, and downhill from, the 4th hole at the Golf Course. Ibid., ¶¶ 3, 11. American Golf, Capstone, and/or Defendant Pacific Gateway Towers, LLC ('Pacific Gateway') owned, maintained, and/or operated a drain and concrete wall/dam along the uphill, north side of the 4th fairway intended to mitigate upstream water flow and sediment (the 'North Dam'). Ibid., ¶ 14. A 12-inch corrugated metal pipe was installed at the base of the North Dam to accept flows capable of entering the pipe at ground level (the 'North Drain'). Ibid. If water and sediment flows were significant enough to overflow the North Dam and North Drain, such flows would travel southward, downhill, and across the 4th fairway, being collected along the south side of the 4th fairway at a headwall (the 'South Headwall'). Ibid. A 12-inch corrugated metal pipe was built at the base of the South Headwall (the 'South Drain'). Ibid. From the South Drain, water and sediment would be carried downhill between Plaintiffs' Property and neighboring property and proceed under the improved pavement of Camino Crest Drive and southward across the 3rd fairway. Ibid. Throughout the years, Defendants installed various flood drain facilities around the Golf Course to prevent rain-related flood damage to residential homes adjacent to the Golf Course on Camino Crest Drive. Ibid., ¶ 15.

Defendants thus were aware that the drainage facility had a history of issues. Ibid. American Golf, Capstone, and/or Pacific Gateway are responsible for maintenance of the North Dam. Ibid., ¶ 16.

However, it is apparent that the North Dam is severely eroded, scoured, and undermined, and a likely source of excessive sediment that overwhelmed the catch basin grate and/or 8-inch-high density PVC pipe that makes up the South Drain. Ibid.

On April 7, 2020, Ms. Long notified the Golf Course that the South Drain was full of silt, not properly draining rainwater, and not properly maintained. Ibid., ¶ 17. However, she was informed that the Golf Course's personnel had been released owing to the COVID-19 pandemic and that voicemail messages were not being checked. Ibid. On April 10, 2020, additional rainfall caused the South Drain to fail, resulting in extensive flooding of, and damage to, Plaintiffs' Property. Ibid., ¶ 18. In particular, flood waters filled the bottom level of Plaintiff's home causing substantial structural damages, ruining carpeting and hardwood flooring, and destroying all surrounding landscaping. Ibid., ¶¶ 18-20, 24. Given all of this, Plaintiffs lost the use of, and access to, a majority of the interior of their home for up to five months and were essentially confined to two rooms of their home during the period that all of the damage needed to be, and was, repaired. Ibid. ¶¶ 22, 25.

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2994115 CASE NUMBER: CASE TITLE:  LONG VS. AMERICAN GOLF CORPORATION [IMAGED]  37-2022-00041985-CU-MC-NC Plaintiffs submitted and resubmitted claim forms to American Golf sometime between April 13, 2020 and February 21, 2021; however, no investigation was performed. Ibid., ¶ 26. Defendants, for their part, knew or should have known that the South Drain and the North Dam were in disrepair and likely to fail if subjected to rainfall and, as a result of that failure, Plaintiffs' Property would be damaged. Ibid., ¶ 106.

Defendants nevertheless acted with careless disregard of Plaintiffs' ages, and/or intentionally towards Plaintiffs, and/or intended to bully Plaintiffs into submission in order to avoid liability for their actions/inactions. Ibid. For example, in April 2019, Golf Course President Gary Glazer dismissed Plaintiffs' complaint that the scoured-out sinkhole near the South Dam would cause damage to Plaintiffs' Property if it rained. Ibid., ¶ 95. Defendants repaired the issue but did so in a defective manner in callous disregard for Plaintiffs' ages and/or with the intent to take advantage of Plaintiffs' ages and save costs.

Ibid. Plaintiffs could not vacate their home during the subject repairs because of the pandemic; however, Defendants' actions have resulted in an appropriation of Plaintiffs' Property as well as a deprivation of their use and enjoyment of their home. Ibid., ¶¶ 97, 102-104.

The foregoing is insufficient to survive the pleading stage. More specifically, the FAC fails to set forth allegations sufficient to demonstrate that Defendants took, secreted, appropriated, obtained, or retained Plaintiffs' Property through their alleged wrongful conduct. In the context of CWIC § 15610.30(c), the Second District Court of Appeal has noted that '[c]ase law recognizes that property rights are a complex 'bundle of rights.' That bundle includes the 'rights to possess the property, to use the property, to exclude others from the property, and to dispose of the property by sale or by gift.' Bounds v. Sup. Ct. (2014) 229 Cal. App. 4th 468, 479 (internal citation omitted) ('Bounds'). In this case, Plaintiffs allege in conclusory fashion that 'Defendants American Golf and Capstone's wrongful actions have resulted in appropriating Plaintiffs' Property and depriving Plaintiffs the use and enjoyment of their home.' See FAC, ¶ 106. While Plaintiffs are correct that the right to use their property is contained within the bundle of rights that can be 'taken' for purposes of CWIC § 15610.30(a), the FAC fails to sufficiently allege the existence of a taking, notwithstanding the allegations that were included purportedly in response to the court's ruling on the first demurrer.

As a general proposition, '[t]he Legislature enacted the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15610, et seq.) (Elder Abuse Act) 'to protect elders by providing enhanced remedies which encourage private, civil enforcement of laws against elder abuse and neglect.' [Citation.]' Cameron v. Las Orchidias Properties, LLC (2022) 82 Cal. App. 5th 481, 506-507 (quoting Arace v. Medico Investments, LLC (2020) 48 Cal. App. 5th 977, 981-982). As was explained in Bounds, [t]he proscribed conduct includes financial abuse. The financial abuse provisions are, in part, premised on the Legislature's belief that in addition to being subject to the general rules of contract, financial agreements entered into by elders should be subject to special scrutiny. (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 140 (2013-2014 Reg. Sess.).) Bounds, 229 Cal. App. 4th at 478. Such a pronouncement, especially in light of the specific language of CWIC § 15610.30(c) that refers to deprivation of a property rights 'by means of an agreement, donative transfer, or testamentary request,' can be interpreted as a desire to protect elders from abuse in any transaction related to the elder's real or personal property. Indeed, a review of case law pertaining to claims of financial elder abuse reveals that the sufficiency of the pleading revolves around the existence of a financial or property transaction between the 'elder' and the defendant. See, e.g., Ibid.; Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal. App. 5th 841; Wood v. Jamison (2008) 167 Cal. App. 4th 156. In this case, Plaintiffs have not pleaded any transactions between themselves and the Defendants that resulted in a 'taking,' which can include a deprivation of property as that word is defined in the pertinent statute. To the extent that Plaintiffs argue that their 'new allegations easily meet the requirements of the Court in its prior ruling as to how the flood damage deprived the Plaintiffs of the use and enjoyment of their property,' (see Opposition, p. 8) the Plaintiffs' argument misunderstands the scope of the court's prior ruling, which in sum concluded that the allegations were inconsistent with the concept of a taking and were insufficient to articulate a taking as contemplated by CWIC § 15610.30(c).

While additional facts have been alleged, those allegations remain insufficient to state a viable financial Calendar No.: Event ID:  TENTATIVE RULINGS

2994115 CASE NUMBER: CASE TITLE:  LONG VS. AMERICAN GOLF CORPORATION [IMAGED]  37-2022-00041985-CU-MC-NC elder abuse claim. As such, the court concludes that the demurrer must be sustained as to the seventh cause of action.

The court must grant leave to amend if there is a reasonable possibility that the foregoing deficiencies can be cured by amendment. See Aubry v. Tri-City Hospital Dist. (1992) 2 Cal. 4th 962, 967. Toward that end, Plaintiffs bear the burden of demonstrating in what manner they can amend the FAC and how that amendment will change the legal effect of their pleading. See Goodman v. Kennedy (1976) 18 Cal. 3d 335, 349. In this case, Plaintiffs fail to satisfy their burden as they present no information about how they can amend the pleading to state a viable claim for financial elder abuse. Consequently, the demurrer is sustained without leave to amend.

Conclusion In light of the foregoing, the court sustains the demurrer to the seventh cause of action without leave to amend. Defendants shall file and serve an answer or otherwise plead to the FAC within five (5) days of this hearing. See Cal. R. Ct. 3.1320(j).

This is the tentative ruling for the hearing at 8:30 a.m. on Tuesday, August 8, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of August 8, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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