Judge Elaine Lu, Case 21STCV35382 2022-10-07 Tentative Ruling

Plaintiff Bianca Fairchild (“Plaintiff”) filed the action Bianca Alexis Fairchild v. Jennifer Lechter, individually and as Successor Trustee of the Gerald M. Friedman Trust; Gerald M. Friedman, also known as Jerry Friedman, 19STCV26182 on July 26, 2019 (“Lead Action”). On September 27, 2019, Plaintiff filed the operative first amended complaint (“FAC”) in the Lead Action against Jennifer Lechter, Jennifer Lechter as Successor Trustee of the Gerald M Friedman Trust, and Gerald M. Friedman. The FAC asserts six causes of action for (1) Breach of Express Contract, (2) Breach of Implied Contract, (3) Trespass, (4) Conversion, (5) Declaratory Relief, and (6) Tortious Interference with Contract. On April 13, 2021, the Court imposed terminating sanctions and dismissed Jennifer Lechter in her individual and representative capacity from the complaint as a result of Plaintiff’s willful failure to comply with discovery orders. (Lead Action Order 4/13/21; see also Lead Action Order 5/31/22.)

On September 27, 2021, Plaintiff filed the instant action, 21STCV35382 (“Instant Action”) against Defendants Jennifer Lechter, individually and as Trustee of the Gerald M. Friedman Trust, and Marvin Engineering, Co., Inc. The complaint asserts twelve causes of action for (1) Breach of Written Contract, (2) Breach of Express Contract, (3) Breach of Implied Contract, (4) Breach of the Implied Covenant of Good Faith and Fair Dealing, (5) Putative Marriage, (6) Promissory Estoppel, (7) Intentional Interference with Contractual Relations, (8) Negligent Misrepresentation, (9) Intentional Misrepresentation, (10), Breach of Fiduciary Duty, (11) Conversion, and (12) Sexual Battery.

On January 27, 2022, the Instant Action was deemed related to the Lead Action. (Minute Order 1/27/22.)

On May 10, 2022, Defendant Jennifer Lechter, individually and as Trustee of the Gerald M. Friedman Trust (“Defendant” or “Lechter”) filed the instant demurrer and motion to strike. On September 26, 2022, Plaintiff filed an opposition. On September 27, 2022, Defendant filed a reply.

“All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing.” (Code Civ. Proc., § 1005(b).) This is calculated by counting backwards from the hearing date and excluding holidays and weekends. (Code Civ. Proc. §§ 12-12(c).) The court may refuse to consider a late-filed paper. (Cal. Rules of Court, Rule 3.1300(d).)

Here, the hearing was set and noticed for October 5, 2021. Accordingly, any opposition was due on September 21 2022. However, Plaintiff did not file and serve her opposition until September 26, 2022 – only seven court days before the hearing. Accordingly, the opposition is untimely. However, Defendant was able to timely file a reply. On this one occasion, the Court will in its discretion consider the untimely opposition. However, the parties are forewarned that the Court will disregard any untimely papers in the future.

In June 1995, when Plaintiff was approximately 14 years old, Plaintiff met Gerald M. Friedman (“Decedent”) who was then approximately 60 years old. (FAC ¶ 10.) At the time Plaintiff did not have a permanent home. (FAC ¶ 10.) Decedent offered Plaintiff a place to live at his condominium, and she moved in with Decedent in 1997. (FAC ¶ 11.) Plaintiff “began having a sexual relationship with [Decedent] shortly thereafter.” (FAC ¶ 11.)

During this period of cohabitation, Decedent promised to “provide for [Plaintiff’s] financial stability after his passing, through his will and otherwise, and that she would always be taken care of” throughout her life. (FAC ¶ 15.) Decedent also informed Plaintiff that the Gerald M. Friedman Trust was “established for the benefit of [his] children and Plaintiff.” (FAC ¶ 12.)

Between 1997 and 2018, Decedent used his own assets and assets from the Gerald M. Friedman Trust to support Plaintiff, including by buying her real property, cars, and jewelry, providing “salaried position at Marvin Engineering Corporation, Inc.,” and “provid[ing] for Plaintiff's education.” (FAC ¶ 13.) “Plaintiff and [Decedent] at times held themselves out to third parties as husband and wife.” (FAC ¶ 14.) Plaintiff is informed and believes that on June 3, 2018, Decedent suffered an accident rendering him partially incapacity. (FAC ¶ 18.)

Beginning in or about July 2018, [Decedent] materially breached the agreement between he and Plaintiff. Plaintiff is informed and believes, and thereon alleges, that such breach was in fact occasioned by Defendant Lechter, who had taken over [Decedents]’s affairs, and DOES 1 through 5, inclusive. At or about that time: (a) Plaintiff was refused any access to [Decedent]; (b) Plaintiffs salaried position at Marvin Engineering was terminated and her salary ceased; ( c) on or about July 13, 2018, Plaintiff’s Special Powers of Attorney dated July 29, 2015 and April 3, 2018 over [Decedent]’s rental properties at 7100 Alvern Street, Los Angeles, California were revoked and on or about July 24, 2018 a demand was made to pay $12,000 in rental income and security deposits which Plaintiff had collected and [Decedent] had previously allowed Plaintiff to keep; (d) at a time from on or about July 15, 2018 through August 8, 2018 the locks were changed at Plaintiffs residence at the Malibu Condo, the Malibu Condo was broken into and essentially all of Plaintiffs personal property was removed including, without limitation, artwork, clothing, jewelry, computers, printer, surveillance system, safe containing cash, documents and photographs; (e) on or about August 8, 2018 $94,000 was removed from a joint account in the name of Plaintiff and [Decedent] at Comerica Bank; (f) at a time from in or about July through August 2018, Plaintiff’s personal property kept at Defendant Friedman’s townhouse at 3610 Vintage on the Strand, #15, Park City, Utah (‘Park City Townhouse’) was removed including, without limitation, clothes, jewelry, furniture, gym equipment and computers; (g) at a time from m or about July through August 2018, Plaintiff was deprived of her personal property including, without limitation, clothing and jewelry that were at [Decedent]’s primary residence at 1806 N. Beverly Glen Boulevard, Los Angeles, California (‘Bel Air Residence’); (h) on or about February 22, 2019, the Malibu Condo was again broken into, locks were changed and items of Plaintiffs jewelry as well as cash were taken; ( I ) on or about August 31, 2018 Plaintiff was provided with a Notice of Termination of Tenancy with respect to the Malibu Condo giving her 60 days to vacate the premises. On or about January 15, 2019 an Unlawful Detainer Complaint was filed against Plaintiff to evict her from the Malibu Condo. Service of process was purportedly obtained by posting and mailing pursuant to C.C.P. § 415.45, a default was entered against Plaintiff on or about February 28, 2019, a judgment and writ of possession obtained on or about March 1, 2019 and Plaintiff was evicted from the Malibu Condo. Plaintiff is informed and believes, and thereon alleges, that on or about May 30, 2019, Defendant Lechter sold the Malibu Condo for approximately $3,960,000.

In June 1996, when Plaintiff was approximately 15 years old, Plaintiff met Gerald M. Friedman (“Decedent”) who was then approximately 60 years old. (Complaint ¶ 17.) Decedent “promised and agreed to provide Plaintiff with emotional and financial support throughout her life, and to provide for her financial stability even after his passing, such that Plaintiff would always be financially taken care of.” (Id. ¶ 19.) Plaintiff then moved into Decedent’s condominium in 1997 and Decedent soon “began having a coercive sexual relationship with Plaintiff.” (Id. ¶ 20.)

In 1999, Plaintiff married Decedent in Las Vegas, but Decedent failed to properly obtain and file the proper marriage paperwork. (Id. ¶ 21.) On July 5, 2012, Plaintiff and Decedent entered into a written agreement under which Decedent promised to “a) assist Plaintiff with her immigration citizenship acquisition; b) assist Plaintiff to freeze and preserve her embryos for future pregnancy opportunities; c) support Plaintiff emotionally, financially, and mentally through the duration of Plaintiff’s lifetime; d) prevent Decedent’s daughter – Defendant Lechter – from interjecting into Plaintiff and Decedent’s personal, business, and/or contractual relationship; e) purchase real property, placing both Decedent and Plaintiff on title, which Decedent and Plaintiff would utilize as their home; and f) pay for Plaintiff’s educational pursuits, amongst other obligations.” (Id. ¶ 25.)

Decedent supported Plaintiff as agreed “up until around July 3, 2018” when Decedent suffered an accident that left him partially incapacitated. (Id. ¶ 28.) At this point Defendant Lechter “assumed control of all of [his] personal, business, and financial affairs,” including replacing Decedent as Trustee of the Gerald M. Friedman Trust. (Id. ¶¶ 28-29.) After Defendant Lechter assumed control of Decedent’s affairs, she did not continue to support Plaintiff and prevented Decedent from doing so. (Id. ¶¶ 30-31.) Instead, Lechter “evict[ed] Plaintiff from the Malibu Property” and “misappropriat[ed] funds from Plaintiff and Decedent's joint bank account.” (Id. ¶ 31.)

As the court may take judicial notice of court records and government records, (See Evid. Code, § 452(c),(d)), the unopposed request for judicial notice is granted. However, the Court will not take judicial notice of the truth of assertions within. (See Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)

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. (Blank v. Kirwan (1985) 39 Cal 3d 311, 318.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dep’t of Water & Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Ct. (1984) 153 Cal. App. 3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at 747.)

Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer (i.e., words, phrases, prayer for damages, etc.). (See CCP §§ 435-437.) A party may file a motion to strike in whole or in part within the time allowed to respond to a pleading. However, if a party serves and files a motion to strike without demurring to the complaint, the time to answer is extended. (CCP §§ 435(b)(1), 435(c).)

A motion to strike lies only where the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (CCP § 436.) The grounds for moving to strike must appear on the face of the pleadings or by way of judicial notice. (CCP § 437.)

Code of Civil Procedure § 430.41, subdivision (a) requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring 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.” The parties are to meet and confer at least five days before the date the responsive pleading is due and if they are unable to meet the demurring party shall be granted an automatic 30-day extension. (CCP § 430.41(a)(2).) The demurring party must also file and serve a declaration detailing the meet and confer efforts. (Id.¿at (a)(3).)¿ If an amended pleading is filed, the parties must meet and confer again before a demurrer may be filed to the amended pleading. (Id.¿at (a).) There is a similar meet and confer requirement for motions to strike. (CCP § 435.5.)

Defendant has fulfilled the meet and confer requirement. (Eisenbaum Decl. ¶¶ 3-4.)

Defendant asserts that res-judicata resulting from the judgment of dismissal in the Lead Action bars the entire action against Defendant Lechter in both her individual capacity and as trustee of the Gerald M. Friedman Trust. In opposition, Plaintiff contends that the Instant Action is not barred because the Instant Action encompasses new and distinct injuries.

“‘Res judicata’ describes the preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Collateral estoppel, or issue preclusion, ‘precludes relitigation of issues argued and decided in prior proceedings.’” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896.) Res Judicata has been used to refer to both claim and issue preclusion. (Ibid., Fn. 7.) The doctrine has two aspects: it applies to both a previously litigated cause of action, referred to as claim preclusion, and to an issue necessarily decided in a prior action, referred to as issue preclusion. (Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 828; Teitelbaum Furs, Inc. v. Dominion Ins. Co. (1962) 58 Cal.2d 601, 604.)

This distinction is essential to understanding the analysis below, as courts have oft-noted the “seemingly ineradicable confusion over the distinctions between ‘res judicata’ (claim preclusion) and ‘collateral estoppel’ (issue preclusion).” (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 541, Fn. 21.)

Issue preclusion applies only to issues that were actually litigated in the earlier matter; whereas claim preclusion extends to all legal theories, proofs, and demands for relief that might have been presented in the first matter, provided both suits assert the same cause of action. (Ibid. citing Landeros v. Pankey (1995) 39 Cal.App.4th 1167, 1171; Gottlieb v. Kest (2006) 141 Cal.App.4th 110, 148; Mycogen Corp. v. Monsanto Corp. (2002) 28 Cal.4th 888, 897; Burdette v. Carrier Corp. (2008) 158 Cal.App.4th 1668, 1687.) “Res judicata [claim preclusion] bars the relitigation not only of claims that were conclusively determined in the first action, but also matter that was within the scope of the action, related to the subject matter, and relevant to the issues so that it could have been raised” and includes ‘matters which were raised or could have been raised, on matters litigated or litigable.’” (Burdette v. Carrier Corp. (2008) 158 Cal.App.4th 1668, 1674-1675; accord Mark v. Spencer (2008) 166 Cal.App.4th 219, 229 [bars claims that parties had a fair opportunity to litigate].) Claim preclusion applies as a bar to splitting a cause of action for partial, later litigation, or relitigation of the same cause of action based upon on another legal theory or associated with different relief, that could have been sought in the prior action. (Noble v. Draper (2008) 160 Cal.App.4th 1, 10; Hamilton v. Asbestos Corp., Ltd. (2000) 22 Cal.4th 1127, 1146.) Its purpose is “to preserve the integrity of the judicial system, promote judicial economy, and protect litigants from harassment by vexatious litigation.” (Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 829.)

The prerequisite elements for applying the doctrine to either an entire cause of action or one or more issues are the same: (1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding. (Ibid.)

Here, there is a clear final judgment on the merits in favor of Defendant. (Bernstein v. Allstate Insurance Co. (1981) 119 Cal.App.3d 449, 451 [“A dismissal for failure to obey a court's discovery orders has the effect of a judgment on the merits against a plaintiff.”].) The Court dismissed Defendant both in her individual capacity and as the trustee of the Gerald M. Friedman Trust with prejudice. (Request for Judicial Notice (“RJN”) Exhs. A-B.) Plaintiff was the party against whom judgment was entered. (RJN Exhs. A-B.) Accordingly, the sole question is whether the claim or issue raised in the Instant Action is identical to a claim or issue litigated in the Lead Action. The Court concludes that they are.

Here, the underlying facts are nearly if not exactly identical. Plaintiff met Decedent in June of 1995 or 1996 when Plaintiff was 15-16 and Decedent was approximately 60 years old. (Complaint ¶ 17; RJN Exh. C at ¶ 10.) In June 1997, Plaintiff moved in with Decedent and shortly begun to have a sexual relationship with Decedent. (Complaint ¶ 20; RJN Exh. C at ¶ 11.) Decedent promised to take care of Plaintiff and did take care of Plaintiff by providing housing, property, a salaried position at Marvin Engineering Corporation, Inc., clothes, jewelry, cars, expenses, etc. (Complaint ¶¶ 19, 23; RJN Exh. C at ¶¶ 13, 15.) In return, “Plaintiff (a) gave up her plans to leave the United States; (b) gave up her aspirations of pursuing her own professional career; ( c) gave up her aspirations to pursue further post graduate education and degrees; (d) refrained from engaging in serious romantic relationships with others that could have led to marriage; (e) gave up having children with others; (f) focused on Decedent’s life, as he desired, instead of her own; and (g) gave up the best years of her life for Decedent, which are irretrievably spent[.]” (Complaint ¶ 22; RJN Exh. C at ¶ 17.) Decedent and Plaintiff held themselves out as being married. (Complaint ¶ 21; RJN Exh. C at ¶ 14.)

Decedent supported Plaintiff as agreed up until July 3, 2018 when Decedent suffered an accident that left him partially incapacitated. (Complaint ¶ 28; RJN Exh. C at ¶ 18.) Defendant Lechter then assumed control of all of Decedent personal, business, and financial affairs, including replacing Decedent as Trustee of the Gerald M. Friedman Trust. (Complaint ¶¶ 28-29; RJN Exh. C at ¶ 28.) After Defendant Lechter assumed control of Decedent’s affairs, she did not continue to support Plaintiff and prevented Decedent from doing so. (Complaint ¶¶ 30-31; RJN Exh. C at ¶ 28.) Instead, Lechter evicted Plaintiff from the Malibu Property and removed $94,000 from Plaintiff and Decedent's joint bank account.” (Complaint ¶¶ 31, 109; RJN Exh. C at ¶ 28.)

The only substantial additions to the complaint in the Instant Action from the FAC in the Lead Action is that on July 5, 2012 Plaintiff and Decedent entered into a written contract, (Complaint ¶ 36), and that Decedent passed away on May 13, 2020, (Complaint ¶ 12). The allegation that Plaintiff and Decedent entered into a written agreement is clearly covered by the allegation for express breach of contract in the Lead Action. (See RJN Exh. C at ¶¶ 20-29.) The allegation that Decedent passed away is immaterial as to the basis for the allegations.

As noted above, “Res judicata bars the relitigation not only of claims that were conclusively determined in the first action, but also matter that was within the scope of the action, related to the subject matter, and relevant to the issues so that it could have been raised.” (Burdette v. Carrier Corp. (2008) 158 Cal.App.4th 1668, 1674–1675.) “Hence the rule is that the prior judgment is res judicata on matters which were raised or could have been raised, on matters litigated or litigable.” (Sutphin v. Speik (1940) 15 Cal.2d 195, 202, [italics added].)

Here, the Instant Action is based on the same transactional nucleus of facts as the Lead Action. The Instant Action is merely a second attempt to relitigate claims adversely determined against Plaintiff – i.e., a second bite at the apple. The additional causes of action raised in the Instant Action – such as the fraud claims – are based on the same facts on which the Lead Action was based and thus could have been raised in the Lead Action. Accordingly, claim preclusion prevents Plaintiff from relitigating these matters.

Citing Nakash v. Superior Court (1987) 196 Cal.App.3d 59, Plaintiff contends in opposition that res judicata does not apply because the claims asserted in the instant case arose after the fact. Plaintiff’s reliance on Nakash is misplaced. In Nakash, the plaintiff filed an action seeking recission of a stock purchase agreement due to fraud. (Id. at p.62.) The parties entered into a settlement agreement which resulted in the first action being dismissed. (Id. at pp.62-63.) A year later, the plaintiff sued the same defendants for claims arising from the same stock agreement. (Id. at p.63.) The Court of Appeal concluded that res judicata was inapplicable to the plaintiff’s claims because “while some of the general circumstances of the successive suits were the same, the specific, pertinent transactional nucleus of facts was not; the second suit would require the production of substantially different proof.” (Id. at p.70.) Nakash is distinguishable. In contrast to Nakash, the instant action is not based on a settlement agreement,[1] and the specific facts from which the claim arises are the same. Unlike in Nakash, the instant action would involve substantially the same proof. As noted above, the Instant Action arises from the same specific transaction nucleus of facts as the Lead Action. Further, there is no allegation regarding conduct by Defendant that occurred after the Lead Action was adversely determined against Plaintiff.

Plaintiff also claims in opposition that the Instant Action includes claims within the exclusive jurisdiction of the Court presiding over the Probate Estate. No authority is cited for this proposition. Nor is there as this department still has jurisdiction. “[A] nonprobate department does not lack fundamental jurisdiction over a probate matter.” (Harnedy v. Whitty (2003) 110 Cal.App.4th 1333, 1344.) “Instead, and as that court held in Dowdall v. Superior Court (1920) 183 Cal. 348, 353, 191 P. 685 (Dowdall ), the probate department has ‘primary’ jurisdiction and a nonprobate department ‘secondary’ jurisdiction of probate-related proceedings.” (Ibid.) Regardless, the probate proceeding was not filed until after terminating sanctions had been imposed on Plaintiff.

In sum, the Instant Action constitutes an attempt to avoid the terminating sanctions imposed in the Lead Action and is barred by res judicata.

Defendant Lechter seeks to strike all allegations that refer to Defendant Lechter on the grounds that the claims are barred based on res judicata. As discussed above, the claims raised in the Instant Action are barred by res judicata. Accordingly, based on the reasoning above, Defendant’s motion to strike is GRANTED.

Here, there is no reasonable possibility of successful amendment as the Instant Action is barred by res judicata. Accordingly, leave to amend is DENIED.

Based on the foregoing, the demurrer to the complaint by Defendant Jennifer Lechter in her individual capacity and as Successor Trustee of the Gerald M Friedman Trust is SUSTAINED WITHOUT LEAVE TO AMEND.

The motion to strike by Defendant Jennifer Lechter in her individual capacity and as Successor Trustee of the Gerald M Friedman Trust is GRANTED WITHOUT LEAVE TO AMEND.

Defendant Jennifer Lechter in her individual capacity and as Successor Trustee of the Gerald M Friedman Trust is to file a proposed judgment of dismissal within 10 days of notice of this order.

This action remains pending against MARVIN ENGINEERING, CO., INC., a California Corporation; and the Personal Representative(s) of the ESTATE OF GERALD M. FRIEDMAN, for whom Plaintiffs have failed to file any proof of service of the summons and complaint.

Plaintiff’s Counsel is ordered to appear on November 17, 2022 at 8:30 am and explain why sanctions (including monetary sanctions of at least $500 and/or dismissal) should not be imposed for failure to serve all named defendants, in compliance with California Rules of Court, Rule 3.720. If proof of service has not been filed at that time, then no later than five days before the OSC hearing, Plaintiff’s Counsel is also to file a declaration explaining the failure to file proofs of service of the summons and complaint as to all unserved defendants and explaining any and all efforts undertaken to attempt service of the summons and complaint on all named defendants.

[1] For purposes of res judicata with a settlement agreement, “the issue of the scope of the settlement agreement is factual and must be resolved before that to which res judicata assertedly applies can be determined.” (Nakash, supra, 196 Cal.App.3d at p.67.)

Superior Court of California

County of Los Angeles

Department 26