Judge: Edward B. Moreton, Jr, Case: 24SMCV04440, Date: 2025-03-18 Tentative Ruling

Case Number: 24SMCV04440    Hearing Date: March 18, 2025    Dept: 205

 

 

 

Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

KEN O’DANIEL,  

 

Plaintiff, 

v. 

 

BONNIE MAE DECKER,  

 

Defendant. 

 

  Case No.:  24SMCV04440 

  

  Hearing Date:  March 18, 2025 

  order RE: 

  Defendant’s demurrer to  

  First amended complaint 

 

 

BACKGROUND 

This action stems from an alleged breach of contractPlaintiff Ken O’Daniel alleges Defendant Bonnie Mae Decker promised to pay him $50,000 upon the transfer and sale of property located at 3554 Decker Cyn Rd, Malibu, CA 90265 (the “Property”)The operative first amended complaint alleges two claims for (1) breach of contract, (2) breach of oral contract, and (3) breach of implied contract.   

This action is related to an action pending in the Probate Division of the Los Angeles Superior Court (the “Probate Action”)On November 1, 2023, Decker brought the Probate Action, as Co-Trustee and on behalf of the Decker Family Trust dated May 1, 1990 (“Trust”), seeking O’Daniel’s return of the Property to the Trust (Request for Judicial Notice (“RJN”), Ex. C.) 

There is a Deed of Trust conveying a security interest on the Property to O’Daniel which Decker claims is invalid because O’Daniel obtained Decker’s signature on the Deed of Trust under false pretenses Decker alleges O’Daniel told her that her signature on the Deed of Trust was for the purpose of signing her living trust. (Id.)  

On January 6, 2023, O’Daniel recorded or caused to be recorded the Deed of Trust. (Id.)  This recordation placed a lien on the Property in the amount of $50,000, to secure a purported loan from O’Daniel to Decker in the sum of fifty-thousand dollars ($50,000) – purportedly evidenced by a Note signed by Decker on the same date she signed the Deed of Trust. (Id.).  Decker denies ever borrowing $50,000 from O’Daniel.  This instant action concerns the same Deed of Trust and purported Promissory Note which are the subject of the Probate Action.   

This hearing is on Decker’s demurrer to the ComplaintDecker argues that O’Daniel should have filed a compulsory cross complaint in the Probate Action, rather than filing the instant action, and O’Daniel is engaging in forum shopping and gamesmanship designed to exhaust Decker’s limited resourcesBecause this action was a compulsory counterclaim to the petition in the Probate Action, Decker argues it is barred under Code of Civ. Proc. §426.30 and relevant caselaw.  

MEET AND CONFER 

Code Civ. Proc. § 430.41 requires that before the filing of a demurrer the moving party “shall meet and confer in person or by telephone” 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.  (Code Civ. Proc. § 430.41(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. § 430.41(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. § 430.41(a)(3).)  Decker submits the Declaration of Steven Hagemann, who attests the parties met and conferred by email, which fails to satisfy the meet and confer requirements of § 430.41.  Notwithstanding, the Court cannot overrule a demurrer based on an insufficient meet and confer.         

REQUEST FOR JUDICIAL NOTICE 

Decker requests judicial notice of pleadings filed in the probate actionThe Court grants the request pursuant to Evid. Code §§ 452(d) and 453.       

LEGAL STANDARD 

“[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 Ins. 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 Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)   

DISCUSSION 

Decker argues that O’Daniel’s claims in this matter should have been raised as compulsory counterclaims in the Probate Action, and O’Daniel’s failure to do so bars his present claimsThe Court agrees. 

Whether a claim should have been pleaded as a compulsory cross complaint in a prior pending action is properly raised by demurrer(Ranchers Bank v. Pressman (1971) 19 Cal.App. 3d 612, 616, 622 n.4 (decided under former Code Civ. Proc. §439 (now see Code Civ. Proc. §426.30(b)).) 

A partys failure to raise a related cause of action in a cross-complaint will result in that party being barred from raising that claim in any subsequent lawsuit(Carroll v. Import Motors, Inc. (1995) 33 Cal. App. 4th 1429, 1434-39; Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1153; )  California Code of Civil Procedure section 426.30 provides that 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. . . . This section does not apply if . . . [t]he person who failed to plead the related cause of action did not file an answer to the complaint against him. 

Here, O’Daniel filed an objection to the petition in the Probate Action which is the equivalent of an answerThus, Code Civ. Proc. § 426.30 applies.  The issue then becomes whether the current claims are related to the Probate ActionThe Court concludes they are.   

Claims are related if they arise from the same transaction.  (Currie Medical Specialities, Inc. v. Bowen (1982) 136 Cal.App.3d 774, 777; Sylvester v. Soulsburg (1967) 252 Cal.App.2d 185, 190-191.)  The purpose of §426.30 is to provide for settlement in a single action of all conflicting claims between parties arising out of the same transaction and thus avoid multiplicity of actions and judgments. To achieve this purpose, the statute has been liberally construed and the term “transaction” is not limited to a single, isolated act or occurrence, but may embrace a series of acts or occurrences logically interrelated.  (Sylvester, 252 Cal.App.2d at 190-191. 

Align Technology v. Tran (2009) 179 Cal. App. 4th 949 is instructiveThere, a plaintiff employer bringing suit against a former employee alleging breach of contract and conversion of patents. The employee demurred on the grounds that the employer’s claims were barred under Code Civ. Proc. §426.30, because they should have been raised in a prior suit, in which the employee had cross-complained for wrongful termination in an action brought against him by the employer.  The trial court in Align Technology sustained the demurrer without leave to amend. On appeal, the Court of Appeals held that the employer’s claims for breach of contract and conversion of patents were logically related to the former employee’s cross-complaint for wrongful termination in the prior action because they arose from the parties’ employment relationship and because the employer’s claims were of such a nature as might be raised in responding to a wrongful termination claim. Thus, the claims were related causes of action as defined in Code of Civ. Proc. §426.10(c). (Id. at 970).  

Here, the subject matter of the present case involves the same transaction which is the subject matter of the Probate Action, namely O’Daniel’s dealings with Decker relating to the Property including whether O’Daniel is owed $50,000Indeed, O’Daniel has admitted that the present case and the prior pending case are related cases by filing a Notice of Related Case in this Court. (RJN, Ex. F.).  Both the Probate Action and the instant case seek to adjudicate the validity of the same $50,000 O’Daniel alleges is owed to him by Decker and which Decker denies owing to O’Daniel.  As such, the instant action is subject to demurrer pursuant to Code Civ. Proc. §426.30.    

CONCLUSION 

For the foregoing reasons, the Court SUSTAINS the demurrer to the complaint. 

 

DATED:  March 18, 2025 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court