Judge: Lee W. Tsao, Case: 19NWCV00942, Date: 2023-03-21 Tentative Ruling

Case Number: 19NWCV00942    Hearing Date: March 21, 2023    Dept: SEC

#7

TENTATIVE RULING

 

Cross-Defendant Hernandez’s demurrer to first amended cross-complaint is SUSTAINED without leave to amend.

 

Moving Party to give NOTICE.

 

 

Cross-Defendant Hernandez demurs to the 1st – 5th causes of action on the ground that they fail to state facts sufficient to constitute a cause of action.

 

This action for Quiet Title is brought by Plaintiff Hernandez against Defendants Lin-Van Enterprises, Inc., El Castillo Escrow Company, and Henry Aguila.  The Complaint asserts causes of action for:

 

1.    Quiet Title

2.    Cancellation of Written Instrument

3.    Constructive Trust – Fraud

4.    Constructive Trust – Mistake

5.    Equitable Cancellation

6.    Negligence

 

The instant demurrer pertains to Cross-Complainant Henry Aguila’s First Amended Cross-Complaint (“FAXC”), asserting causes of action for:

 

1.    Breach of Contract

2.    Breach of Covenant of Good Faith and Fair Dealing

3.    Inducing Breach of Contract

4.    Breach of Fiduciary Duty

5.    Negligence

 

“Generally, a demurrer is sustained or a motion to abate a pending action is granted if there is another action pending between the same parties in which the issues are the same.  Cal. Civ. Proc. Code § 430(3). The limitations on this rule are, however, stated as follows:  In order that a second action be abated because of the pendency of a prior action, it is elementary that the issues in the two actions must be substantially the same.  In determining this question, the test applied is whether a final judgment in the first action could be pleaded in bar as a former adjudication.”  (Kamei v. Kumamoto (1967) 256 Cal.App.2d 381, 384.)

 

Cross-Complainant Henry Aguila alleges that Michael Hernandez (“Michael”), the administrator of Robert Hernandez’s estate, failed “honor the terms of the Will.”  (FAXC, ¶¶ 5, 13.)  Based thereon, Aguila alleges contract claims (1st – 3rd cause of action), breach of fiduciary duty (4th cause of action) and negligence (5th cause of action) against Michael based on the contention that Michael owed a duty to Henry as a beneficiary under the purported will.  (FAXC, ¶¶ 33, 39.)

 

JUDICIAL NOTICE is taken of Exhibits 1-3 and 5-19.  A Probate Action concerning Robert Hernandez’s estate is pending in LASC Case No. 21STPB01162.  In the Probate Action, Henry Aguila filed a Petition for Order Revoking Letters of Administration, alleging that Michael failed to honor the terms of a lost will.

 

The court finds that the two actions are substantially similar.  In both action, Henry Aguila alleges that he is owed certain property based on a purported lost will.  Michael filed demurrers to Aguila’s Petition.  On January 23, 2023, the Probate Court sustained Michael’s demurrers without leave to amend.  The court determined that Henry Aguila’s claims seeking enforcement and probate of a lost will is time-barred. (Reply RJN Ex. 1, January 23, 2023 Minute Order).

 

The Probate Court has jurisdiction over the administration of the decedent’s estate.  (Prob. Code § 7050.)

 

Accordingly, there is another action pending, which has conclusively determined that Cross-Complainant has no claims for enforcement of a purported lost will.

 

As the deficiencies in the FAXC is incurable, the demurrer is SUSTAINED without leave to amend.