Judge Gail Killefer, Case 21STCV36539 2022-10-11 Tentative Ruling

Tentative: Defendants’ demurrer is sustained. Plaintiffs are granted 30 days leave to amend. Defendants are to give notice.

Background

This action, for breach of fiduciary duty and fraud, arises in connection with a family dispute regarding the conservatorship of Ruby M. Eubanks. Terry Eubanks and Hallie Eubanks (collectively “Plaintiffs”) allege that Rochelle Eubanks and Hayward Eubanks (collectively “Defendants”), while acting in their capacity as co-conservators for the person and estate of Ruby M. Eubanks, conspired and breached their fiduciary duties by eliminating the original will and replacing the original will with a falsified and forged version. Defendants also allegedly fraudulently named themselves in the will as executors of the estate, along with Gary Eubanks.

On October 5, 2021, Plaintiffs filed a complaint against Defendants alleging: (1) breach of fiduciary duty; (2) breach of fiduciary duty; and (3) fraud.

On December 30, 2021, default was entered against Defendants by the court. On January 28, 2022, Plaintiffs filed a First Amended Complaint (“FAC”) alleging identical causes of action.

Defendants now demur to all causes of action of the FAC. Plaintiffs oppose the demurrer.

Defendants request judicial notice of the following in support of their demurrer:

1. Opposition Re: Administrator/Executor appointment, Preliminary/Final Accounting, Estate Distribution/Assets filed by Hallie Eubanks on October 23rd, 2017, Los Angeles Superior Court, Case No. BP160443 (Exh. 1);

2. Order on Final Account and Report of the Conservatorship of the Person and Estate of Ruby Eubanks filed on June 20th, 2019, Los Angeles Superior Court, Case No. BP160443 (Exh. 2);

3. Petition requesting Removal of Executor for Cause, For Providing a Forged and Fraudulent Will to the Court; and Other Relief filed by Terry and Hallie Eubanks on October 16th, 2020, Los Angeles Superior Court, Case No. 17STPB08332 (Exh. 3);

4. Minute Order dated June 22nd, 2021, Los Angeles Superior Court, Case No. 17STPB08332 (Exh. 4);

5. Motion in Equity for Orders to Set Aside and Vacate Order for Probate and Address of Will to Probate Procured Through Extrinsic Fraud or Mistake to the Court; and Other Relief filed by Terry and Hallie Eubanks on August 20th, 2021, Los Angeles Superior Court, Case No. 17STPB08332 (Exh. 5);

6. Minute Order dated February 16th, 2022, Los Angeles Superior Court, Case No. 17STPB08332 (Exh. 6.).

Defendants’ request is granted. The existence and legal significance of these documents are proper matters for judicial notice. (Evid. Code § 452(c), (d), (h).) However, the court may not take judicial notice of the truth of the contents of the documents. (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) Documents are only judicially noticeable to show their existence and what orders were made. The truth of the facts and findings within the documents are not judicially noticeable. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 885.)

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . .” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525 (Berkley).) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (CCP § 452; see also Stevens v. Sup. Ct. (1999) 75 Cal.App.4th 594, 601.) “When a court evaluates a complaint, the plaintiff is entitled to reasonable inferences from the facts pled.” (Duval v. Board of Trustees (2001) 93 Cal.App.4th 902, 906.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3 (Mahan), citing Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty “because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Demurrers do not lie as to only parts of causes of action where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

“‘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.’ [Citation.] Under the doctrine of res judicata, if a plaintiff prevails in an action, the cause is merged into the judgment and may not be asserted in a subsequent lawsuit; a judgment for the defendant serves as a bar to further litigation of the same cause of action.” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896-897.) “[T]he prior judgment is res judicata on matters which were raised or could have been raised, on matters litigated or litigable.” (Busick v. Wrokmen’s Comp. Appeals Bd. (1972) 7 Cal.3d 967, 975.)

There are three elements for res judicata to apply: “(1) Was the issue decided in the prior adjudication identical with the one presented in the action in question? (2) Was there a final judgment on the merits? (3) Was the party against whom the plea is asserted a party to or in privity with a party to the prior adjudication? [Citations.]” (Nathanson v. Hecker (2002) 99 Cal.App.4th 1158, 1162.)

The primary right theory applies to a determination of whether a subsequent action is barred by res judicata. (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797.) “Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief. ‘Hence a judgment for the defendant is a bar to a subsequent action by the plaintiff based on the same injury to the same right, even though he presents a different legal ground for relief.’ [citations]” (Id. at 798.)

Defendants contend the causes of action of the FAC and Plaintiffs’ “allegation of a forged will, are subject to res judicata and collateral estoppel, such that these issues were litigated in the Conservatorship of the Person and Estate of Ruby Mae Banks [sic]...” (Demurrer, 10-11.) Defendants point to RJN Exhibits 4 and 5 as determining that Plaintiffs’ claims were time-barred and in deciding the aforementioned issues. (Id.) Defendants fail, however, to explain where the judicially noticed exhibits issue a final decision regarding any of these issues between the parties. Further, as Exhibit 4 dealt specifically with the revocation of the will and a different statute of limitations, Defendants fail to explain how the cited and referenced decisions can have any preclusive effect on the claims made in the FAC. As such, the court finds Defendants have failed to meet their burden of establishing the preclusive effect of any prior decisions as to the issues between the parties and the claims raised in the FAC.

The court finds Plaintiffs’ FAC sufficiently pled and is not precluded by res judicata or collateral estoppel. For these reasons, Defendants’ demurrer is overruled on these grounds.

“The elements of a cause of action for breach of fiduciary duty are: (1) the existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach.” (Stanley v. Richmond¿(1995) 35 Cal.App.4th 1070, 1086.)¿

Here, Defendants contend “Plaintiffs’ complaint is filled with legal conclusions asserting Defendant neglected her duties... [h]owever, no facts are pleaded which set forth in what respect Defendant’s conduct constituted a breach of her duties,” and further no facts are alleged to show any damages caused to Plaintiffs by the alleged breach. (Demurrer, 6-7.) Defendants then the second cause of action for an identical claim is repetitive and further “fails to mention any facts, alleging only vague legal conclusions and a request for punitive damages. There are no facts pleaded.” (Id.)

In opposition, Plaintiffs fail to point to alleged facts in the FAC but rather point to new allegations and legal conclusions to set forth a claim for a breach of fiduciary duties against Defendants individually for the first and second cause of action. (Opposition, 4-7.) Upon review, the court notes many of the legal conclusions alleged against Defendants in Plaintiffs’ opposition are reiterations of said conclusions from the FAC. (FAC ¶¶10-14.)

At the demurrer stage, the court must treat all properly pled material facts as admitted, but does not do so with regards to legal conclusions or contentions. (Berkeley, supra, at 525.) As such, the court does not treat as admitted the contentions and conclusions made in the FAC, as well as those reasserted in Plaintiffs’ opposition, and finds the first and second causes of action to be insufficiently pled. Plaintiffs fail to allege sufficient material facts to set forth a claim that establishes the elements for a breach of fiduciary duty as to each Defendant and further fail to explain in their opposition how the FAC has pled sufficient facts at this demurrer junction.

For these reasons, Defendants’ demurrer is sustained as to the first and second causes of action.

The elements of a fraud cause of action are: (1) misrepresentation (false representation, concealment, or omission); (2) knowledge of falsity; (3) intent to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Davis v. Southern California Edison Co. (2015) 236 Cal.App.4th 619.) Fraud must be pled in the complaint specifically. General and conclusory allegations are not sufficient. (Stansfield v. Starkey¿(1990)¿220 Cal.App.3d 59,¿74;¿Nagy v. Nagy¿(1989) 210 Cal.App.3d 1262, 1268.) Unlike most causes of action where the “the policy of liberal construction of the pleadings,” fraud requires particularity, that is, “pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Stansfield, supra, 220 Cal.App.3d at 73;¿Lazar v. Superior Court¿(1996) 12 Cal.4th 631, 645.) Every element of a fraud cause of action must be alleged both factually and specifically. (Hall v. Department of Adoptions¿(1975) 47 Cal.App.3d 898, 904; Cooper v. Equity General Insurance¿(1990) 219 Cal.App.3d 1252, 1262.)¿

Here, Defendants contend “Plaintiffs have failed to allege how, where, when, to whom, and by what means Defendant [Rochelle Eubanks] knowingly made material misrepresentations, what Defendant intended by making said material misrepresentations; how Plaintiffs relied on said material misrepresentations to alter their conduct; and how they were damaged by their reliance on Defendant [Rochelle Eubanks’] alleged misrepresentation.” (Demurrer, 8.) Defendants further contend Plaintiffs’ third cause of action is time-barred as Plaintiff Hallie Eubanks has “repeatedly appeared in court as an Objector to both the conservatorship case and the Probate case as early as October 23, 2017.” (Demurrer, 9.) Therefore, Defendants contend since Plaintiffs failed to file a complaint alleging fraud before the end of the three-year statute of limitations, pursuant to Civ. Code § 338, the FAC’s claims are barred by the statute of limitations. (Demurrer, 9-10.)

In opposition, Plaintiffs contend “Beneficiaries Terry Eubanks and Hallie Eubanks never received proper legal notification of the will filing to allow them to file a timely written objection and a will contest complaint to challenge the validity of the will until long after the 120-day will challenge period,” and further contend, “Plaintiffs had no access to the will that was filed with the Los Angeles Superior Court and were not able to gain access to the will for forensic examination until Plaintiff’s petition filed with the court was granted on July 31, 2020...” (Opposition, 8-9.) However, Plaintiffs do not address the remainder of Defendants’ demurrer to the third cause of action, beyond again reasserting the legal conclusions and contentions found in the FAC. (Opposition, 7.)

A review of the FAC shows the third cause of action is insufficiently pled. Plaintiffs fail to meet the heightened particularity required for fraud causes of action and fail to allege sufficient facts to set forth a fraud cause of action against Defendants. For these reasons, Defendants’ demurrer is sustained as to the third cause of action.

Defendants’ demurrer is sustained. Plaintiffs are granted 30 days leave to amend. Defendants are to give notice.

[1] Defendants submit the declaration of their counsel, Rikisha D. Thomas (“Thomas”) to demonstrate that they have fulfilled their statutory meet and confer obligations prior to filing the instant demurrer. Thomas attests that on August 23, 2022, counsel contacted Plaintiffs through email correspondence but received no response. (Thomas Decl. ¶ 2.) The Thomas Declaration is insufficient for purposes of CCP § 430.41, as the declaration shows the parties failed to meet and confer around the issues. However, as the failure to meet and confer is not grounds to overrule a demurrer, the court continues with the parties’ arguments.