Judge Daniel M. Crowley, Case Number: 24STCV02406, Date: 2024-09-25 Tentative Ruling

Defendant Suki Song’s demurrer to Plaintiff Ronald Neer’s first amended complaint is overruled.

Defendant Suki Song (“Song”) (“Defendant”) demurs to Plaintiff Ronald Neer’s (“Ronald”) (“Plaintiff”) first amended complaint (“FAC”) on the basis the FAC fails to state facts sufficient to allege a cause of action for unjust enrichment and fails to state a cause of action for fraud. (Notice of Demurrer, pgs. 1-2; C.C.P. §§430.10, 430.30.) Defendant also moves to strike portions of the FAC. (Notice of MTS, pg. 2; C.C.P. §§435, 436.)

Plaintiff filed his initial Complaint on January 30, 2024. On May 17, 2024, Plaintiff filed the operative FAC against Defendant alleging four causes of action: (1) financial elder abuse; (2) cancellation of instrument; (3) restitution/unjust enrichment; and (4) imposition of a constructive trust.[1]

This action arises out of Plaintiff’s father, David Drew Neer’s (“David”) (“Decedent”), alleged relationship with Defendant and Defendant’s role as Decedent’s care custodian. (See FAC.)

On June 18, 2024, Defendant filed the instant demurrer and motion to strike. On September 12, 2024, Plaintiff filed his oppositions. Defendant filed her replies on September 18, 2024.

Defendant demurs to Plaintiff’s 3rd cause of action for unjust enrichment on the basis California does not recognize a cause of action for unjust enrichment. (Demurrer, pg. 3; C.C.P. §430.10(e).) Defendant also demurs on the basis that Plaintiff’s FAC fails to state facts sufficient to state a cause of action based in fraud because the FAC does not allege facts related to any misrepresentation by defendants, knowledge of falsity or intent to deceive. (Demurrer, pg. 3; C.C.P. §430.10(e).)

Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person, by telephone, or by video conference 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. (C.C.P. §430.41(a), emphasis added.) A declaration must be filed with a demurrer regarding the results of the meet and confer process. (C.C.P. §430.41(a)(3).)

Defendant’s counsel declares that on or around June 12, 2024, an attorney in her firm engaged in a discussion with Plaintiff’s counsel to address the points raised in the instant demurrer, and the parties were unable to reach an agreement. (See Decl. of Admans ¶¶8-9, Exh. 1.) Defendant’s counsel fails to explicitly indicate that she met and conferred in person, by telephone, or by video conference; however, the Court regards Defendant’s declaration as sufficient under C.C.P. §430.41(a). Accordingly, the Court will consider the instant demurrer.

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Insurance Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 967.)

The elements of an unjust enrichment claim are the “receipt of a benefit and [the] unjust retention of the benefit at the expense of another.” (Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1593; Lectrodryer v. SeoulBank (2000) 77 Cal.App.4th 723, 726, 91 Cal.Rptr.2d 881.)

There is a circuit split in California courts regarding recognition of unjust enrichment as a standalone cause of action. (See Jogani v. Superior Court (2008) 165 Cal.App.4th 901, 911 [“[U]njust enrichment is not a cause of action.”]; Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 794 [defining it as a remedy]; McBride v. Boughton (2004) 123 Cal.App.4th 379, 387 [“Unjust enrichment is not a cause of action . . . or even a remedy . . ..” ].)

Plaintiff alleges Defendant received the benefit of at least $6 million in payments wrongfully received during Decedent’s life as well as more than $1.5 million in annuity and similar contracts. (FAC ¶52.) Plaintiff alleges all these items rightfully belong to Plaintiff and his sister, either as rightful pay-on-death beneficiaries or as the sole heirs of Decedent’s Estate. (FAC ¶52.) Plaintiff alleges Defendant has been unjustly enriched at the expense of Plaintiff, who has been harmed in an amount to be proven at trial, but which amount is not less than $7.5 million. (FAC ¶52.)

Plaintiff sufficiently alleges a cause of action for unjust enrichment. Plaintiff sufficiently alleges Defendant received a benefit and Defendant’s benefit was an unjust retention at Plaintiff and his sister’s expense. (See FAC ¶52; Peterson, 164 Cal.App.4th at pg. 1593.)

Accordingly, Defendant’s demurrer to Plaintiff’s 3rd cause of action for unjust enrichment is overruled.

Defendant demurs to a cause of action for fraud that is not alleged in the FAC. (See Demurrer Memo, pgs. 2-4.) Defendant’s demurrer refers to Plaintiff’s requests for punitive and exemplary damages. (Demurrer Memo, pg. 3.) Whether a cause of action is amenable to any particular remedy is not a basis for demurrer. (See, e.g., Shaw v. Los Angeles Unified School District (2023) 95 Cal.App.5th 740, 762 [whether plaintiffs’ claims were amenable to certain remedies was an improper ground for sustaining a demurrer, noting that the trial court improperly “focused not on liability but on remedy”].) Accordingly, Defendant’s demurrer to Plaintiff’s request for punitive and exemplary damages is not an appropriate basis for a demurrer.

Accordingly, Defendant’s demurrer to Plaintiff’s request for punitive and exemplary damages is overruled.

Defendant’s 9/18/24 request for judicial notice of (1) the 11/23/22 Objections to Suki Song Petition for Appointment of Temporary Conservator in LASC Case No. 22STPB11429, Conservatorship of David Drew Neer (D-RJN, Exh. A); and (2) the 11/28/22 Court Appointed Attorney (PVP) Report in LASC Case No. 22STPB11429, Conservatorship of David Drew Neer (D-RJN, Exh. B), is granted.

C.C.P. §436 provides that the Court may, upon a motion made pursuant to C.C.P. §435, or at any time within its discretion and upon terms it deems proper, “strike out any irrelevant, false, or improper matter inserted in any pleading” or any pleading or part thereof “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (C.C.P. §436.)

Defendant moves to strike portions of the FAC: (1) as to Defendant being Decedent’s care custodian (FAC pgs. 22:6, 2:9-10, 2:23-25, 5:22, 10:17-18, 12:9, 13:8, 14:5-6; 14: 8; 14:9-10; 14-15:26-5; 15:11-13; 15-16:26-1; 16:15-16; and 18:3-4); (2) cause of action for unjust enrichment (FAC pgs. 18-19:14-3); (3) request for punitive damages (FAC pgs. 16:22, 17:24, 17:7-10, 20:24); and (4) to irrelevant and improper matters: (FAC pgs. 2:4-6, 2:11-12, 5:5-7, 5:11-14, 5:16-18, 10:16-17, 14:7, Exh. B). (Notice MTS, pg. 2; C.C.P. §§435, 436.)

Defendant moves to strike Plaintiff’s allegations that Defendant was Decedent’s care custodian on the basis Plaintiff’s judicial admissions in LASC Case No. 22STPB11429 state that Plaintiff himself was providing care for Decedent. (MTS, pgs. 1-2.)

Plaintiff’s allegation that Defendant was his care custodian are not in conflict with Plaintiff’s declarations filed in a separate matter that Decedent’s “immediate needs [were] being provided for [by] Neil Howard as Attorney-in-Fact and Successor Trustee and [Plaintiff] as [Decedent’s] Health Care Agent for . . . [his] medical needs and his activities of daily living.” (MTS, pg. 2; D-RJN, Exh. A at pg. 4:1-7.) Plaintiff’s allegation Defendant was Decedent’s care custodian does not exclude the fact that Plaintiff also provided care to Decedent during the same period. (See, e.g., Bernard v. Foley (2006) 39 Cal.4th 794 [illustrating two separate individuals were found to be care custodians].)

Accordingly, Defendant’s motion to strike portions of the FAC referring to her as Decedent’s care custodian is overruled.

In light of this Court’s ruling on Defendant’s demurrer to the 3rd cause of action for unjust enrichment, Defendant’s motion to strike this cause of action is denied as moot.

Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression. (Civ. Code §3294(a).) “Malice” is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Id.) “Fraud” is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury. (Id.) Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud, or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)

“Conduct which warrants punitive damages must be of ‘such severity or shocking character [as] warrants the same treatment as accorded to willful misconduct – conduct in which defendant intends to cause harm.’” (Woolstrum v. Mailloux (1983) 141 Cal.App.3d Supp. 1, 10, quoting Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 286.) “Despicable Conduct” is conduct that is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715.)

Plaintiff’s FAC alleges that Defendant misrepresented herself to Decedent as single and as romantically interested in him. (FAC ¶17.) Plaintiff alleges on information and belief that Decedent married her then-husband on December 28, 2007, the same year she met Decedent. (FAC ¶17.) Plaintiff alleges in FAC ¶20l, “In November of 2014, Decedent changed the beneficiary designation on MetLife contract ending in 1889 to [Defendant], whom he listed as his ‘fiancée.’ Plaintiff is informed and believes that the handwriting on this Beneficiary Change, a true copy of which is attached hereto as Exhibit N, is not Decedent’s handwriting, and that [Defendant] (who was married to another man at the time) was not then, or ever, Decedent’s ‘fiancée.’” (FAC ¶20l.)

Plaintiff alleges in FAC ¶20m, “The following month, December of 2014, Suki’s adult children, Sarah Luke-Brodeur (“Sarah”) and Jesse Brodeur (“Jesse”), who were falsely listed as Decedent’s ‘stepson’ and ‘stepdaughter,’ were added as contingent beneficiaries on MetLife contract ending in 1889. Plaintiff is informed and believes that the handwriting on the Beneficiary Change, a true copy of which is attached hereto as Exhibit O, is not Decedent’s handwriting and that Decedent never had any stepchildren. Particularly as Decedent and Suki were never married, her children Sarah and Jesse were never Decedent’s stepchildren.” (FAC ¶20m.)

Plaintiff sufficiently alleges fraud in support of his allegations in support of his request for punitive damages in the 1st cause of action for financial elder abuse.

Accordingly, Defendant’s motion to strike Plaintiff’s request for punitive damages from the FAC is overruled.

Defendant moves to strike references to a romantic or sexual relationship between Defendant and Decedent, or Defendant purportedly being a “sex worker” as irrelevant or improper. (MTS, pg. 6.) Defendant also moves to strike allegations related to Decedent’s disfigurement on the basis they only serve to humiliate Decedent. (MTS, pg. 7.)

Evidence Code §210 defines “relevant evidence” as “evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code §210.)

Here, Decedent’s belief that he was engaging in a romantic or sexual relationship with Defendant is directly relevant to Defendant’s ability to exert undue influence over Decedent. The allegation that Defendant was also married to another man while she was in a romantic or sexual relationship with Decedent is also directly relevant to Plaintiff’s allegations of undue influence.

Further, the allegation that Defendant worked as a sex worker in a massage parlor is also relevant to her deception of Decedent in that Plaintiff alleges Defendant convinced Decedent that they were engaged in a genuine romantic relationship, rather than a transactional one and explains the circumstances under which Defendant inserted herself into Decedent’s life. Finally, such evidence is related to Defendant’s credibility.

With regard to Plaintiff’s allegations referring to Decedent’s physical deformity resulting from his illness, such information is relevant background for Decedent’s susceptibility to undue influence, which is central to Plaintiff’s 1st cause of action.

Accordingly, Defendant’s motion to strike irrelevant and improper matters is overruled.

Hon. Daniel M. Crowley

Judge of the Superior Court

[1] The Court notes Defendant only demurs to the 3rd cause of action; Defendant also demurs to a cause of action for fraud that is not alleged in the FAC.