Judge: Gregory Keosian, Case: 23STCV11079, Date: 2024-04-03 Tentative Ruling

Case Number: 23STCV11079    Hearing Date: April 3, 2024    Dept: 61

I.                   DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) 39 Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“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. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

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. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Plaintiff Alma Mamolo, individually and as trustee of the First Restatement of the Mamolo Living Trust (Plaintiff) demurrers to the Cross-Complaint filed by Ruggero Terzuolo and Ida P. Terzuolo, individually and as trustees of the Ruggero Terzuolo and Ida P. Terzuolo 1980 Trusts (Defendants). Plaintiff argues that the Cross-Complaint should be abated in light of Defendant’s filing of a cross-complaint in a pending partition action filed by Plaintiff. (Demurrer at pp. 6–7.) Plaintiff also argues that the first cause of action for breach of contract fails to state any breach. (Demurrer at pp. 7–8.) Plaintiff argues that the elder abuse cause of action is pleaded with insufficient specificity. (Demurrer at pp. 8–9.) Plaintiff argues that the third cause of action for contractual interference contains no allegations against Plaintiff, and that the fourth cause of action for declaratory relief is duplicative of the breach of contract claim. (Demurrer at pp. 9–10.)

“Under the statutory plea in abatement, the pendency of another earlier action growing out of the same transaction and between the same parties is a ground for abatement of the second action.. A statutory plea in abatement requires that the prior pending action be between the same parties on the same cause of action.” (People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4th 760, 770, internal quotation marks, citations, and alterations omitted.)

Plaintiff’s argument concerning the abatement of Defendants’ cross-complaint is unpersuasive, as the causes of action asserted in the partition action are different from those asserted in the present action. Defendant’s contract allegations in the present action arise from Plaintiff’s alleged repudiation of a 2004 spousal agreement to withdraw from the business in exchange for payments over a specified period. (XC ¶ 36.) Defendant’s claims in the partition action, however, relate to the 2017 settlement agreement between the parties, and specifically allege a breach of that agreement by negotiating a purchase offer and selecting a broker for the subject Burbank property without approval of either the court or of Defendant. (RJN Exh. K, ¶ 18.) Because Defendant asserts a different cause of action arising from a different transaction, no abatement is warranted.[1]

Plaintiff’s argument against the breach of contract claim is undeveloped and unpersuasive. It consists only of the position that no breach of any term of the contract is alleged, beyond Plaintiff’s repudiation of the agreement. (Demurrer at pp. 7–8.) But a contract may be breached by repudiation. (See Cinel v. Barna (2012) 206 Cal.App.4th 1383, 1390.) The demurrer to the first cause of action is therefore OVERRULED.

Plaintiff’s arguments against the second cause of action for elder abuse are based on the specificity of the pleading. As a statutory cause of action, the facts constituting elder abuse must be “pleaded with particularity.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 410.) To show financial abuse, one must show either deprivation of property “by undue influence” or “for wrongful use or with intent to defraud.” (Welf. & Inst. Code § 15610.30, subd. (a)(1)–(3).)

“[T]o establish a “wrongful use” of property to which an elder has a contract right, the elder must demonstrate a breach of the contract, or other improper conduct.” (Paslay v. State Farm General Insurance Company (2016) 248 Cal.App.4th 639, 657.) Additionally, a plaintiff must show that the defendant who obtained the property “knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.” (Welf. & Inst. Code § 15610.30, subd. (b).)

Plaintiff’s argument as to the specificity of the elder abuse claim are unpersuasive, as Plaintiff’s objection to this claim is its failure to plead the precise timing and coordination of various “clandestine meetings” and instructions to modify accounts with other cross-defendants. (Demurrer at p. 9.) But the Cross-Complaint alleges that Defendants were victims of the alleged conspiracies, not parties to them in possession of knowledge of their inner workings. “The rule of particular pleadings, even where applicable to certain claims, does not pertain with the same force “when the facts lie more in the knowledge of the opposite party.” (Tenet Healthsystem Desert, Inc. v. Blue Cross of California (2016) 245 Cal.App.4^th 821, 838.) The demurrer to the second cause of action is OVERRULED.

Plaintiff’s argument as to the third cause of action for contractual interference is OVERRULED as the third cause of action is pleaded solely against Frank Romano, not Plaintiff.

Plaintiff’s argument as to the duplicative nature of Defendant’s claim for declaratory relief does not warrant dismissal of the claim. Plaintiff relies on authority stating that the declaratory relief statute “should not be used for the purpose of anticipating and determining an issue which can be determined in the main action. The object of the statute is to afford a new form of relief where needed and not to furnish a litigant with a second cause of action for the determination of identical issues.” (California Ins. Guarantee Assn. v. Superior Court (1991) 231 Cal.App.3d 1617, 1624.) However, where a plaintiff alleges a dispute that meets the requirements of Code of Civil Procedure § 1060 — i.e. an “actual controversy” ongoing between the parties —  dismissal of the claim for declaratory relief is at most a matter of court discretion. (Osseous Technologies of America, Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 375.) Here, Defendant has alleged an ongoing controversy regarding Plaintiff’s involvement in the management company pursuant to the 2004 spousal agreement, and whether that agreement is valid. (XC ¶¶ 54–55.) Plaintiff is therefore not entitled to an order dismissing the claim.

Plaintiff’s final argument against the fifth cause of action for money had and received is based solely on her argument that the other claims fail. (Demurrer at p. 10.) As Plaintiff’s arguments against these other claims do not warrant demurrer, the demurrer is OVERRULED as to the fifth cause of action.

II.                MOTION TO STRIKE

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435(b)(1)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (California Rules of Court Rule 3.1322.)

The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437(a)). The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)

Plaintiff moves to strike Defendants’ answer and cross-complaint on the grounds that it was tardily filed beyond the time for filing a responsive pleading, and that default should have been entered on December 13, 2023, when Plaintiff requested it. (Motion at pp. 1–3.) Plaintiff argues that their requests for default were thwarted by Defendants’ filing of a “notice of appearance” on December 13, 2023, even though such a filing is not a permitted responsive pleading under Code of Civil Procedure § 585, subd. (a). (Motion at pp. 1–3.)

No order striking the answer or cross-complaint is appropriate. Though untimely filed, they were filed prior to any entry of default and are sufficient to prevent its entry. (See Goddard v. Pollock (1974) 37 Cal.App.3d 137, 141.)

Plaintiff also moves to strike the prayer for punitive damages, on the grounds that the allegations of Plaintiff’s wrongdoing sound in breaches of contract. (Motion at pp. 3–4.)

Punitive damages are allowed in non-contract cases when a defendant is guilty of “oppression, fraud, or malice . . . .” (Civ. Code § 3294, subd. (a).) The terms are defined as:

1.      “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

2.      “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

3.      “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

(Civ. Code § 3294, subd. (c).)

Something more than the mere commission of a tort is always required for punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Proof of negligence, gross negligence, or recklessness is insufficient to warrant an award of punitive damages. (Dawes v. Sup.Ct. (Mardian) (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be recovered in an action for negligence or other nonintentional torts if the plaintiff pleads and proves that the defendant acted with the state of mind described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious disregard of Plaintiff’s rights, the conduct must be both despicable and willful. (College Hospital v. Superior Court (1994) 8 Cal.4th 794, 713 (“College Hospital”).)

The allegations here are sufficient to support the existence of malice, oppression, or fraud, and they do not arise solely from contractual claims. While it is alleged that Cross-Defendant Romano failed to make payments owed under an agreement, and that Plaintiff has failed to abide by a 2004 spousal agreement, it is also alleged that Plaintiff in concert with others conspired to loot money from the company otherwise owed to Defendants for her personal ends (Complaint ¶ 20)