Judge: H. Jay Ford, III, Case: 23SMCV0214, Date: 2024-03-07 Tentative Ruling

Case Number: 23SMCV0214    Hearing Date: March 7, 2024    Dept: O

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

SUBJECT:                 MOTION TO DISMISS

MOVING PARTY:   Defendants Linda Mayne and Stephen S. Mayne

RESP. PARTY:         Plaintiff Robert G. Furst

TENTATIVE RULING

            Pro Se Defendants Linda Mayne and Stephen Mayne’s Motion to Dismiss for Plaintiff Robert G. Furst’s lack of standing is DENIED. Plaintiff Robert G. Furst has standing to bring an elder abuse claim under Welf. & Inst. Code, § 15657.3(d)(2) as an interested party.

            “[W]hen a demurrer or pretrial motion to dismiss challenges a complaint on standing grounds, the court may not simply assume the allegations supporting standing lack merit and dismiss the complaint. Instead, the court must first determine standing by treating the properly pled allegations as true. If, having taken the allegations as true, the court finds no standing, it should sustain the demurrer or dismiss the petition. If it finds standing by contrast, the court should allow the litigation to continue.” (Barefoot v. Jennings (2020) 8 Cal.5th 822, 827.)

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).)

            “Evidence Code section 459 specifically provides that a reviewing court may take judicial notice of the matters provided for in Evidence Code section 452 where the matters have not been previously noticed if the matter sought to be judicially noticed ‘is of substantial consequence to the determination of the action.” (People v. Terry (1974) 38 Cal.App.3d 432, 439.)

            Defendants Linda and Stephen Mayne (“Mayne Defendants”) move to dismiss the FAC filed by Plaintiff Robert G. Furst (“Robert”), individually and as successor in interest for Hanna Furst (“Decedent”), for lack of standing. (Motion, pp. 1–3.) The Mayne Defendants argue that Robert is not the real party in interest under CCP § 367, Robert cannot bring this claim on a behalf of an abused elder under Welfare & Institutions Code § 15657.3, and that the California probate court barred Robert from litigating on behalf of his Decedent mother without obtaining court authorization on 11-30-21.

            Robert pleads that he is the son of the Decedent, and thus Robert is an interested person under Probate Code § 48. An Interested person has standing to bring a Financial Elder Abuse claim under Welf. & Inst. Code, § 15657.3(d(2) (See Welf. & Inst. Code, § 15657.3, subd. (d)(2), Prob. Code, § 48, subd. (a)(1).) Furthermore, the Court is not satisfied the order in the probate case in 11-30-21 Case No. 20STPB03901 bars this action.

            Thus, The Mayne Defendants Motion to Dismiss for lack of standing is DENIED.