Judge: Holly J. Fujie, Case: 22STCP00859, Date: 2022-12-30 Tentative Ruling

Case Number: 22STCP00859    Hearing Date: December 30, 2022    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Defendants Cynthia Maldonado (“Ms. Maldonado”) and Victor Maldonado (“Mr. Maldonado”) (collectively, “Moving Defendants”)

RESPONDING PARTY: Plaintiffs

The Court has considered the moving, opposition and reply papers.

BACKGROUND

            The currently operative first amended complaint (the “FAC”) alleges: (1) financial elder abuse.  In relevant part, the FAC alleges: Plaintiffs are the nieces and successors in interest of Elisa Carbajal (“Decedent”), who died on May 26, 2021.  (FAC ¶¶ 1, 9.)  Between 2000 through 2018, Decedent held an ownership interest in real property (the “Property”).  (FAC ¶ 11.)  Decedent resided at the Property with Moving Defendants.  (Id.)  In or around 2018, Moving Defendants also held an interest in the Property along with Decedent.  (Complaint ¶ 11.)  On information and belief, from between at least 2016 until her death in 2021, Decedent was cognitively impaired and was susceptible to undue influence.  (FAC ¶ 14.)  In 2016, Ms. Maldonado sent an email to her siblings, including Plaintiffs, representing that Decedent was mentally and physically declining and that Decedent suffered from mental illness.  (See FAC ¶ 10.)  On or about March 14, 2018, while acting as fiduciaries for Decedent, Mr. Maldonado presented Decedent with a quitclaim deed and demanded that she convey her interest in the Property to Moving Defendants.  (FAC ¶ 15, Exhibit 1.)  Moving Defendants thereafter executed and recorded the quitclaim deed which transferred Decedent’s interest in the Property to Moving Defendants.  (Id.)  When the quitclaim deed was executed, Decedent lived with Moving Defendants and was under their care.  (See id.)

            Moving Defendants filed a demurrer (the “Demurrer”) to FAC on the grounds that it alleges insufficient facts to constitute a cause of action and is uncertain.

DISCUSSION

Meet and Confer

The meet and confer requirement has been met.

Legal Standard

A demurrer tests the sufficiency of a complaint as a matter of law.  (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)  The court accepts as true all material factual allegations and affords them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts.  (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.)  With respect to a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded.  (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.)  A demurrer will be sustained without leave to amend if there exists no reasonable possibility that the defect can be cured by amendment.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

Demurrers for uncertainty are disfavored.  (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822.)  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.  (Id.)  

Financial Elder Abuse

            The Elder Abuse Act (the “Act”) defines financial abuse as follows: 

(a)   “Financial abuse” of an elder or dependent adult occurs when a person or entity does any of 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. 

(b)   A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult. 

            (Wel. & Inst. Code § 15610.30, subds. (a)-(b).)

Under Welfare and Institutions Code section 15610.70:

a)¿“Undue influence” means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity. In determining whether a result was produced by undue influence, all of the following shall be considered: 

(1)¿The vulnerability of the victim. Evidence of vulnerability may include, but is not limited to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability;

(2)¿The influencer’s apparent authority. Evidence of apparent authority may include, but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, or other qualification;

(3)¿The actions or tactics used by the influencer. Evidence of actions or tactics used may include, but is not limited to, all of the following: 

(A)¿Controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep. 

(B)¿Use of affection, intimidation, or coercion. 

(C)¿Initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes; and

(4)¿The equity of the result. Evidence of the equity of the result may include, but is not limited to, the economic consequences to the victim, any divergence from the victim’s prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship.

  (Wel. & Inst. Code § 15610.70.)

The Court finds that the FAC sufficiently alleges that Moving Defendants violated the Elder Abuse Act by taking, secreting, appropriating, obtaining or retaining Decedent’s Property by undue influence.  The FAC alleges that Decedent lived with and was under Moving Defendants’ care, that Moving Defendants were aware of her cognitive decline, and that they accordingly pressured her into transferring the Property by quitclaim deed.  

The Court therefore OVERRULES the Demurrer.  Moving Defendants are to file an answer within 20 days of this order.

Moving party is ordered to give notice of this ruling. 

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar. 

  Dated this 30th day of December 2022