Judge: Gail Killefer, Case: 21STCV17485, Date: 2024-11-22 Tentative Ruling
Case Number: 21STCV17485 Hearing Date: November 22, 2024 Dept: 37
HEARING DATE: Friday, November 22, 2024
CASE NUMBER: 21STCV17485
CASE NAME: Mukaram Hhana, et al. v. Joshua Gershon, et al.
MOVING PARTY: Defendant Candice Vega
OPPOSING PARTIES: Plaintiff Mukaram Hhana, as Personal
Representative of the Estate of Stephen A. Cohen, Personal Representative of
the Estate of Stanley Y.Y. Goo, and as Trustee of The Stephen A. Cohen Trust
TRIAL DATE: February 11, 2025
PROOF OF SERVICE: OK
PROCEEDING: Motion for Summary
Judgment
OPPOSITION: November 8, 2024
REPLY: November
18, 2024
TENTATIVE: Defendant’s motion for
summary judgment is denied. Defendant’s motion for summary adjudication is DENIED
as to the first, second, and tenth causes of action and GRANTED Defendant’s
motion for summary adjudication is granted as to the eleventh cause of action
and the claim for punitive damages.
Defendant to give notice.
Background
This is an action arising out of fraudulent transactions allegedly
made by Defendants Joshua Gershon (“Gershon”) and Candice Vega (“Vega”) using the
bank accounts belonging to the estates of Stephen A. Cohen (“Cohen”) and Stanley
Y.Y. Goo (“Goo”) after their deaths.
On May 10, 2021, Plaintiff Mukaram Hhana, as personal
representative of the estates of Goo and Cohen, filed a Complaint against Defendants
Gershon, Vega, and Does 1 through 100, with ten causes of action for: (1)
Conversion, (2) Trespass to Chattel, (3) Invasion of Privacy, (4) Conversion,
(5) Trespass to Chattel, (6) Invasion of Privacy, (7) Impersonation [Penal Code
§ 528.5], (8) Breach of Verbal Agreement, (9) Fraud – Promissory Fraud, and
(10) Intentional Infliction of Emotional Distress.
On May 26, 2023, Plaintiff filed a First Amended Complaint (“FAC”)
adding an eleventh cause of action for Elder Financial Abuse. The FAC alleges the first, second, tenth, and
eleventh causes of action against Vega, and also asserts a punitive damages
claim.
On July 3, 2023, Vega filed an Answer to the FAC. On October 24, 2023, Gershon filed an Answer
to the FAC.
On August 19, 2024, Vega filed the instant motion for
summary judgment or, in the alternative, for summary adjudication on the four
causes of action and the punitive damages claim asserted against her. On November 8, 2024, Plaintiff filed an
opposition. On November 18, 2024, Vega filed a reply.
Evidentiary Objections
Plaintiff’s Objections to Defendant Candice Vega’s
Declaration
Objection 1-3: Sustained. Lacks
foundation.
Objection 4: Overruled. Has
foundation to describe what income she received.
Objection 5: Sustained. Hearsay.
Objection 6: Overruled. Has
foundation to describe restitution order.
Objection 7: Overruled. Copy of
official court record is self-authenticating. (Evid. Code § 1530.)
Objection 8: Sustained. Lacks
foundation.
Objection 9: Sustained. Lacks authentication.
Objection 10: Overruled. See
objection 7.
Defendant’s Objections to Plaintiff Mukaram Hhana’s
Declaration
Objection 1 (Plaintiff’s Separate
Statement of Additional Facts (AF) No. 2): Sustained.
Objection 2-3 (AF Nos. 3-4):
Sustained. Hearsay, lacks foundation.
Objection 4 (AF No. 5): Sustained.
Irrelevant.
Objection 5 (AF No. 8): Sustained.
Hearsay.
Objection 6 (AF No. 16): Sustained.
Hearsay.
Objection 7 (AF No. 24): Overruled.
Factual Summary
Gershon and Vega married in July
2014, separated on May 8, 2020, and divorced on December 11, 2021. (Separate Statement of Undisputed Material
Facts (“DSS”), ¶¶ 1-3.) Goo passed away on February 25, 2020, and Cohen passed
away on June 6, 2020. (DSS ¶¶ 5-6.) In July 2020, Gershon moved into the
residence of the deceased Goo and Cohen. In October 2020, Vega received a phone
call from Gershon in which he stated he had stolen from Goo and Cohen and that
Plaintiff caught him. (DSS ¶ 9.) On November 22, 2022, Gershon was arrested,
criminally charged with theft from Goo’s and Cohen’s estates, and subsequently pleaded
guilty. (DSS ¶ 12; Vega Decl. ¶ 14.) Gershon was ordered to pay restitution to
Plaintiff and various financial institutions. (DSS ¶ 13; Vega Decl. ¶ 14, Exh.
3).
The parties dispute Vega’s conduct
and whether it serves as the basis for Plaintiff’s four causes of action
against her, including: (1) the first cause of action for Conversion, (2) the
second cause of action for Trespass to Chattel, (3) the tenth cause of action
for Intentional Infliction of Emotional Distress and (4) the eleventh cause of
action for Elder Financial Abuse. (DSS ¶¶ 16-18.)
Discussion
“The
purpose of the law of summary judgment is to provide courts with a mechanism to
cut through the parties' pleadings in order to determine whether, despite their
allegations, trial is in fact necessary to resolve their dispute.” (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP § 437c(a) provides:
A party may move for summary judgment in any action or
proceeding if it is contended that the action has no merit or that there is no
defense to the action or proceeding. The
motion may be made at any time after 60 days have elapsed since the general
appearance in the action or proceeding of each party against whom the motion is
directed or at any earlier time after the general appearance that the court,
with or without notice and upon good cause shown, may direct…. The motion shall be heard no later than 30
days before the date of trial, unless the court for good cause orders
otherwise. The filing of the motion
shall not extend the time within which a party must otherwise file a responsive
pleading.
A
motion for summary judgment may be granted “if all the papers submitted show
that there is no triable issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” (CCP § 437c(c).)
“The
motion shall be supported by affidavits, declarations, admissions, answers to
interrogatories, depositions, and matters of which judicial notice shall or may
be taken. The supporting papers shall
include a separate statement setting forth plainly and concisely all material
facts that the moving party contends are undisputed. Each of the material facts stated shall be
followed by a reference to the supporting evidence. The failure to comply with this requirement
of a separate statement may in the court’s discretion constitute a sufficient
ground for denial of the motion.” (CCP §
437c(b)(1); see also Cal. Rules of
Court, rule 3.1350(c)(2) & (d).)
In
analyzing motions for summary judgment, courts must apply a three-step
analysis: “(1) identify the issues framed by the pleadings; (2) determine
whether the moving party has negated the opponent's claims; and (3) determine
whether the opposition has demonstrated the existence of a triable, material
factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294 (Hinsley).) CCP § 437c(p)(2) provides:
A defendant or cross-defendant has met his or her burden of
showing that a cause of action has no merit if the party has shown that one or
more elements of the cause of action, even if not separately pleaded, cannot be
established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met
that burden, the burden shifts to the plaintiff or cross-complainant to show
that a triable issue of one or more material facts exists as to the cause of
action or a defense thereto. The
plaintiff or cross-complainant shall not rely upon the allegations or denials
of its pleadings to show that a triable issue of material fact exists but,
instead, shall set forth the specific facts showing that a triable issue of
material fact exists as to the cause of action or a defense thereto.
The
court must “view the evidence in the light most favorable to the opposing party
and accept all inferences reasonably drawn therefrom.” (Hinesley, 135 Cal.App.4th at p. 294; Dore v. Arnold Worldwide, Inc. (2006) 39
Cal.4th 384, 389 [Courts “liberally construe the evidence in support of the
party opposing summary judgment and resolve doubts concerning the evidence in
favor of that party.”].) A motion for
summary judgment must be denied where the moving party’s evidence does not
prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d
462, 475) or where the opposition is weak. (Salasguevara
v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387.)
II.
Analysis
First Cause of Action – Conversion
Defendant Vega asserts that
Plaintiff’s conversion claim fails because Plaintiff has neither shown
Plaintiff owns the personal property at issue nor shown any involvement by Vega
in the theft of the subject property. Plaintiff argues she has shown evidence
of both her right to the subject property and Vega’s involvement in taking both
personal property and funds from the estates of Cohen and Goo.
“Conversion is the wrongful
exercise of dominion over the property of another. The elements of a conversion
claim are: (1) the plaintiff’s ownership or right to possession of the
property; (2) the defendant’s conversion by a wrongful act or disposition of
property rights; and (3) damages.” (Lee
v. Hanley (2015) 61 Cal.4th 1225, 1240.) “The personal representative [of a
decedent’s estate] has the management and control of the estate and, in
managing and controlling the estate, shall use ordinary care and diligence.
What constitutes ordinary care and diligence is determined by all the
circumstances of the particular estate.” (Cal. Prob. Code § 9600(a).) “The
personal representative has the right to, and shall take possession or control
of, all the property of the decedent to be administered in the decedent’s
estate and shall collect all debts due to the decedent or the estate.” (Cal.
Prob. Code § 9650.)
i.
Ownership or Right to Possession
Vega contends Plaintiff’s conversion claim fails because Plaintiff
has not shown she individually owns the subject property. However, Plaintiff has
shown that she is the duly appointed personal representative of the estates of Goo
and Cohen and brings this action in such capacity with respect to property owned
by these estates. (FAC ¶ 1; Hhana Decl., ¶¶ 19-20.) Plaintiff further alleges she is the successor
Trustee of The Stephen A Cohen Trust and brings this action in such capacity
with respect to property owned by this trust. (FAC ¶ 1; Hhana Decl., ¶ 5.) Plaintiff
has shown sufficient evidence showing ownership or right to possession of the bank
account funds at issue belonging to Cohen’s and Goo’s estates, and Vega fails
to meet her initial burden to negate such ownership interest.
ii.
Conversion by a Wrongful Act
Vega asserts that Plaintiff’s conversion claim also fails
because Plaintiff has not shown any involvement by Vega in the theft of the
subject property. To support her assertion, Vega has submitted a declaration
establishing that she never took any money belonging to Plaintiff, Cohen, Goo,
their respective estates or accounts. (Vega Decl., ¶ 16; DSS ¶¶
16-18.) Second, Vega submits she received no
income from Gershon after they separated in May 2020 through any means other
than $1,500 check deposits for Gershon’s disability payments. (Vega Decl., ¶
8.) Third, Vega submits by declaration she never wrote any checks withdrawing
funds on her joint account with Gershon. (Vega Decl., ¶ 16.) Vega has met her moving burden to show she
did not commit any wrongful act converting Plaintiff’s property. The burden
shifts to Plaintiff to show a triable issue of material fact as to this issue.
Here, Plaintiff meets her burden to show a triable issue of
material fact as to whether Vega converted Plaintiff’s property. First,
Plaintiff submits deposition testimony by Vega stating that she and Gershon shared
a joint account into which they both deposited money and withdrew funds to pay
various expenses, including preschool tuition, utility bills, credit card
bills, and car payments. (Mazarei Decl., Exh. A 31:4-15.) Second, Vega stated
that she did not know whether Gershon ever deposited money he had stolen into this
joint account. (Mazarei Decl., Exh. A 33:11-16.) Third, Plaintiff presents
deposition testimony from Vega confirming cash transfers of funds from the
joint checking account with Gershon to Vega’s personal checking account, showing
evidence of Vega’s possible involvement in transferring stolen funds. (Mazarei
Decl., Exh. A 38:22-39:25.) Plaintiff has thus met her burden to show a triable
issue of material fact exists as to whether Vega involved herself in converting
Plaintiff’s property by a wrongful act or disposition of property.
The court denies summary judgment, or summary adjudication,
as to the first cause of action.
Second Cause of Action – Trespass to Chattel
Vega asserts the
trespass to chattel claim fails for the same reasons as the first cause of
action, namely that Plaintiff has not shown Vega participated in the theft of money
from Plaintiff, Cohen, Goo or their estates. Plaintiff argues she has shown sufficient
evidence that Vega participated in taking funds belonging to Cohen and Goo’s
estates.
“Under California
law, trespass to chattels ‘lies where an intentional interference with the
possession of personal property has proximately caused injury.’” (Jamgotchian
v. Slender (2009) 170 Cal.App.4th 1384, 1401 (quoting Thrifty-Tel, Inc.
v. Bezenek (1996) 46 Cal.App.4th 1559, 1566).)
To support her assertion, Vega has submitted a declaration stating
that she never took any money belonging to Plaintiff, Cohen, Goo, their estates
or accounts. (Vega Decl., ¶ 16; DSS ¶¶ 16-18.) Vega submits
she
received no income from Gershon after they separated in May 2020 through any
means other than $1,500 check deposits for Gershon’s disability payments. (Vega
Decl., ¶ 8.) Vega submits that she did not know whether Gershon
ever deposited money he had stolen into this joint account. (Mazarei Decl.,
Exh. A 33:11-16.) Vega further submits by declaration she never wrote any
checks withdrawing funds on her joint account with Gershon. (Vega Decl., ¶ 16.)
Absent evidence that Vega took Plaintiff’s property, Vega contends Plaintiff
fails to establish intentional interference. Vega has met her initial burden to
show no intentional interference with Plaintiff’s property. The burden shifts
to Plaintiff to show a triable issue of material fact as to this issue.
Here, Plaintiff meets her burden to show a triable issue of
material fact as to whether Vega intentionally interfered with Plaintiff’s
property. First, Plaintiff submits deposition testimony by Vega stating that she
and Gershon shared a joint account into which they both deposited money and
withdrew funds to pay various expenses, including preschool tuition, utility
bills, credit card bills, and car payments. (Mazarei Decl., Exh. A 31:4-15.)
Second, Vega stated that she did not know whether Gershon ever deposited money
he had stolen into this joint account, suggesting the joint account may have included
stolen funds. (Mazarei Decl., Exh. A 33:11-16.) Third, Plaintiff presents
deposition testimony from Vega confirming cash transfers of funds from her joint
checking account with Gershon to her personal checking account. (Mazarei Decl.,
Exh. A 38:22-39:25.) Viewed in a light most favorable to Plaintiff, such
evidence of funds, which may include stolen funds, being transferred to Vega’s
personal checking account supports a reasonable inference of intentional
interference by Vega. Plaintiff has thus met her burden to show a triable issue
of material fact as to intentional interference with Plaintiff’s property.
The court denies summary judgment, or summary adjudication,
as to the second cause of action.
Tenth Cause of Action – Intentional Infliction of Emotional
Distress
Vega asserts the intentional
infliction of emotional distress claim fails for the same reasons as the first
cause of action, namely that Plaintiff has not shown Vega participated in the
theft of money from Plaintiff, Cohen, Goo or their estates. However, Vega does
not challenge any other element of this cause of action. The court thus limits
its analysis to this issue. Plaintiff argues she has shown sufficient evidence
that Vega participated in taking funds belonging to Cohen’s and Goo’s estates.
“The elements of a prima facie case for the tort of
intentional infliction of emotional distress are: (1) extreme and outrageous
conduct by the defendant with the intention of causing, or reckless disregard
of the probability of causing, emotional distress; (2) the plaintiff’s
suffering severe or extreme emotional distress; and (3) actual and proximate
causation of the emotional distress by the defendant’s outrageous conduct.
Conduct to be outrageous must be so extreme as to exceed all bounds of that usually
tolerated in a civilized community.” (Wilson
v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.)
To support her assertion, Vega submits a declaration stating
that she never took any money belonging to Plaintiff, Cohen, Goo, their estates
or accounts. (Vega Decl., ¶ 16; DSS ¶¶ 16-18.) Vega submits
she
received no income from Gershon after they separated in May 2020 through any
means other than $1,500 check deposits for Gershon’s disability payments. (Vega
Decl., ¶ 8.) Vega submits that she did not know whether Gershon
ever deposited money he had stolen into this joint account. (Mazarei Decl.,
Exh. A 33:11-16.) ega further submits by declaration she never wrote any checks
withdrawing funds on her joint account with Gershon. (Vega Decl., ¶ 16.)
However, as previously discussed, Plaintiff presents deposition testimony from Vega
confirming cash transfers of funds from Vega’s joint checking account with Gershon
to Vega’s personal checking account, showing evidence of Vega’s possible participation
in the theft. (Mazarei Decl., Exh. A 38:22-39:25.) Such claims contradict Vega’s
claims of noninvolvement. Viewed in a light most favorable to Plaintiff, the
evidence presented by Vega fails to negate Plaintiff’s claim and fails to satisfy
Vega’s moving burden.
The court denies summary judgment, or summary adjudication,
as to the tenth cause of action.
Eleventh Cause of Action – Elder Financial Abuse
Vega asserts the
elder financial abuse claim fails because neither Cohen nor Goo were alive when
the financial crimes took place. In opposition, Plaintiff argues the Probate
Code includes liability for financial crimes committed against the trust or
estate of a decedent, as here.
“[F]inancial abuse of an elder .
. . occurs when a person or entity does the following:”
(1) Takes, secretes, appropriates, obtains, or retains
real or personal property of an elder or dependent adult 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.
(Welf. & Inst. Code, §
15610.30, subd. (a).)
“If a court finds that a person has in bad
faith wrongfully taken, concealed, or disposed of property belonging to a
conservatee, a minor, an elder, a dependent adult, a trust, or the estate of a
decedent, or has taken, concealed, or disposed of the property by the use of
undue influence in bad faith or through the commission of elder or dependent
adult financial abuse, as defined in Section 15610.30 of the Welfare and
Institutions Code, the person shall be liable for twice the value of the
property recovered by an action under this part.” (Prob. Code § 859.)
Vega contends that Plaintiff’s
elder financial abuse claim fails based on the undisputed fact that neither Cohen
nor Goo were alive when the financial crimes occurred. (UMF No. 15.) The burden
shifts to Plaintiff to show a triable material fact as to this issue. Plaintiff
fails to meet her burden because she does not dispute there was no living elder
when the alleged financial abuse occurred and offers no other evidence to show
the conduct occurred while Cohen or Goo were alive. (Ibid.) Plaintiff’s
argument that Probate Code § 859 supports this cause of action is not well
taken because the statute provides a plaintiff may recover damages in the
amount two times the value of the stolen property; however, the statute refers
to Welfare and Institutions Code § 15610.30 to define financial elder abuse and
does not extend this definition to include financial abuse that occurred after
a decedent’s death. (Prob.
Code § 859.) Plaintiff provides no authority
interpreting the Probate Code in favor of her argument and has not demonstrated
the existence of any triable issue of material fact.
The court grants summary adjudication as to the eleventh cause
of action.
Claim for Punitive Damages
“To obtain the remedies provided by the Act pursuant to
section 15657, ‘a plaintiff must demonstrate by clear and convincing evidence
that defendant is guilty of something more than negligence; he or she must show
reckless, oppressive, fraudulent, or malicious conduct.’ [citation]
Recklessness refers ‘to a subjective state of culpability greater than simple
negligence, which has been described as a deliberate disregard of the high
degree of probability that an injury will occur.’ Oppression, fraud and malice
involve intentional or conscious wrongdoing of a despicable or injurious
nature.” (Sababin v. Superior Court (2006) 144 Cal. App. 4th 81, 88–89
(quoting from Delaney v. Baker (1999) 20 Cal. 4th 23).)
Here, Plaintiff’s claim for punitive damages is tied to the eleventh
cause of action.
In light of the above ruling on the eleventh cause of action,
the court grants Ms. Vega’s motion for summary adjudication on Plaintiff’s
claim for punitive damages.
Conclusion
Defendant’s motion for summary judgment is denied.
Defendant’s motion for summary adjudication is denied as to
first, second and tenth causes of action.
Defendant’s motion for summary adjudication is granted as to
the eleventh cause of action and the claim for punitive damages.
Defendant is to give notice.