Judge: H. Jay Ford, III, Case: 23SMCV02014, Date: 2024-09-05 Tentative Ruling

Case Number: 23SMCV02014    Hearing Date: September 5, 2024    Dept: O

  Case Name:  Estate of Hanna Furst v. Linda Mayne, et al.

SUBJECT:                 DEMURRER WITH MOTION TO STRIKE

MOVING PARTY:   Defendants Linda Mayne and Stephen S. Mayne

RESP. PARTY:         Plaintiff Robert G. Furst

TENTATIVE RULING

            Defendants Linda Mayne and Stephen Mayne’s Demurrer the Plaintiff Robert G. Furst’s FAC is OVERRULED. Plaintiff pleads all the elements of a financial elder abuse claim with the necessary ultimate facts.

            Defendants Linda Mayne and Stephen Mayne’s Motion to Strike Portions of the FAC is DENIED. The requested portions to be stricken provide relevant background facts and are not conclusions at law or irrelevant. Additionally, the motion fails procedurally as Defendants failed to meet and confer prior to filing pursuant to CCP § 435.5.

REASONING

I.                Demurrer

As a general matter, 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 pleading alone, and not the evidence or facts alleged.” (E428.50Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Plaintiff is only required to allege ultimate facts, not evidentiary facts. (See Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212 [“the complaint should set forth the ultimate facts constituting the cause of action, not the evidence by which plaintiff proposes to prove those facts”); 1 Cal. Affirmative Def. § 10:2 (2d ed.) [allegations of agency, course and scope of employment, etc. qualify as ultimate facts].) Plaintiff’s allegations must be accepted as true on demurrer. (See Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924 [“For purposes of reviewing a demurrer, we accept the truth of material facts properly pleaded in the operative complaint”].)

The elements of a cause of action for financial elder abuse are (1) the defendant took, hid, appropriated, obtained or retained plaintiff's property; (2) plaintiff is at least 65 years of age or a dependent adult; (3) the defendant took, hid, appropriated, obtained or retained plaintiff's property for a wrongful use, with the intent to defraud, or by undue influence; (4) the plaintiff was harmed; and (5) the defendant's conduct was a substantial factor in causing plaintiff's harm. (See CACI No. 3100.)

            “Any ‘interested person, as defined in Section 48 of the Probate Code’ [citations], has standing to bring a financial elder abuse action. The phrase “interested person,” as used in section 15657.3 of the Elder Abuse Act, includes ‘[a]n heir, devisee, child, spouse, creditor, beneficiary, and any other person having a property right in or claim against a trust estate or the estate of a decedent which may be affected by the proceeding.’”. (Royals v. Lu (2022) 81 Cal.App.5th 328, 353, citing Welf. & Inst. Code, § 15657.3, subd. (d), Prob. Code, § 48, subd. (a)(1).)

            “[W]hen the trustee of an elder's trust or the executor of an elder's estate is herself accused of financial elder abuse, the Elder Abuse Act expressly grants to a third party with an interest in the claim standing to pursue it instead of the conflicted fiduciary. (Royals, supra, 81 Cal.App.5th at p. 353; Welf. & Inst. Code, § 15657.3, subd. (d)(2).)

            Defendants Linda and Stephen Mayne (“Mayne Defendants”) demur to the FAC filed by Plaintiff Robert G. Furst (“Plaintiff”), individually and as successor in interest for Hanna Furst (“Decedent”), arguing the FAC does not state the “requisite factual allegations,” to state a cause of action or Elder Abuse. (Demurrer, p. 7.)

            The Plaintiff states the following facts in the FAC:

1.     “In February 2018, Linda flew from San Francisco to Phoenix and tricked David and Hanna into signing several estate planning documents in which they unwittingly transferred total control of their assets to Linda.” (FAC, ¶ 36.)

2.     “Linda retained the property of Hanna, an elder, for a wrongful use within the meaning of Welfare & Institutions Code Section 15610.30.” (FAC, ¶ 126.)

3.     Decedent “was over the age of 65,” at all relevant times. (FAC, ¶¶ 122–124.)

4.     Decedent “wanted Linda to relinquish fiduciary control over her assets, which Linda had obtained through coercion, undue influence and fraud, but Linda refused.” (FAC, ¶ 70.)

5.     Decedent was harmed. (FAC, ¶¶ 113–118, 127, 128.)

6.     Defendants actions were the “direct and proximate” cause of the harm. (FAC, ¶¶ 105, 106, 113–118, 128)

The Plaintiff has plead all the necessary ultimate facts to allege a cause of action for financial elder abuse. At the pleading state all facts plead are assumed to be true, so any arguments related to the truth of the facts are not appropriate at this stage.

            Thus, The Mayne Defendants Demurrer is OVERRULED.

II.             Motion to Strike

“[A] motion to strike is generally used to reach defects in a pleading which are not subject to demurrer. A motion to strike does not lie to attack a complaint for insufficiency of allegations to justify relief; that is a ground for general demurrer.” (Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 342.) A motion to strike may be directed to all or a portion of a complaint, cross-complaint, answer, or demurrer. (See Code Civ Proc., § 435, subdiv., (a).) On a motion to strike, a judge must read the complaint as a whole, considering all parts in their context, and must assume the truth of all well-pleaded allegations. (See Atwell Island Water Dist. v. Atwell Island Water Dist. (2020) 45 Cal.App.5th 624, 628, as modified (Feb. 27, 2020).)

As part of the meet and confer process, the moving party shall identify all of the specific allegations that it believes are subject to being stricken and identify with legal support the basis of the deficiencies. The party who filed the pleading shall provide legal support for its position that the pleading is legally sufficient, or, in the alternative, how the pleading could be amended to cure any legal insufficiency.” (Code Civ. Proc., § 435.5, subdiv. (a)(1).) “The parties shall meet and confer at least five days before the date a motion to strike must be filed.” (Code Civ. Proc., § 435.5, subdiv., (a)(2).)

A judge may, on a motion to strike made under CCP § 435 or at any time at the judge's discretion, “strike out any irrelevant, false, or improper matter in a pleading,” on terms the judge “deems proper.” (Code Civ. Proc., § 436(a).).  “[I]rrelevant . . . matter” means an immaterial allegation in a pleading and includes an allegation that is not essential to the statement of a claim or defense. (Code Civ. Proc. § 431.10(b)(1) and (c).)

The Motion is Strike is denied for procedural error alone due to the lack of a meet and confer prior to filing the motion pursuant to CCP § 435.5(a). (See Code Civ. Proc., § 435.5, subd. (a) [“Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer . . .”].) Defendants’ declaration stating that they felt the Plaintiff lacked “genuine intent to engage in a meet and confer” without more declared effort to schedule a meet and confer is not enough to reach the CCP § 435.5 requirements.

Additionally, the Motion to Strike fails substantively. Defendants argue to strike portions of the complaint that they state are conclusions of law or inflammatory and irrelevant, “which ultimately mischaracterize Plaintiff’s allegations.” (Motion, p. 11.) Essentially, Defendant argues to strike portions of the complaint because the alleged facts in the FAC are not true. At this stage the Court is to assume the truth of all well plead allegations, and thus striking allegations for lacking in truth is not appropriate at this stage. Additionally, the allegations Defendants request to be stricken are well plead facts that provide either background to the elder abuse claim, or are relevant to the claim itself.