Judge Lee W. Tsao, Case Number: 20NWCV00808, Date: 2024-02-20 Tentative Ruling

Judge: Lee W. Tsao, Case: 20NWCV00808, Date: 2024-02-20 Tentative Ruling

Case Number: 20NWCV00808 Hearing Date: February 20, 2024 Dept: C

Rosemary Murrieta-Radford vs Brian Andrew Murrieta

Case No.: 20NWCV00808

Hearing Date: February 20, 2024 @ 10:30 AM

Tentative Ruling

Defendant Brian Andrew Murrieta’s Demurrer is SUSTAINED with 20 days leave to amend.

Plaintiff to give notice.

Background

Plaintiff Rosemary Murrieta-Radford (“Plaintiff”) commenced this action on December 28, 2020 against her brother, Defendant Brian Andrew Murrieta (“Defendant”) alleging elder abuse of their now deceased father, Thomas Murrieta (“Decedent”), among other claims.

The operative First Amended Complaint (“FAC”) was filed on July 31, 2023.

Defendant demurs to the FAC on the grounds that it fails to state facts sufficient to state a cause of action. Specifically, Defendant argues that Plaintiff lacks standing to bring the elder abuse action.

Legal Standard

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.¿ (C.C.P. § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Ibid.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.¿ App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.¿ (Blank, supra, 39 Cal. 3d at p. 318.)

Pursuant to C.C.P. §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082.)

MEET & CONFER

C.C.P. § 430.41(a) requires that the demurring party meet and confer with the party who filed the pleading that is subject to the demurrer at least 5 days before the date the responsive pleading is due, by telephone or in person, for the purpose of determining if the parties can resolve the objections to be raised in the demurrer. The demurring party must file and serve a declaration detailing their meet and confer efforts.

Upon review of the record, the Court finds that meet and confer requirements have been satisfied to code. (Fickel ¶ 2.)

Discussion

The right to commence or maintain an action for elder abuse “pass[es] to the personal representative of the decedent.” (Cal. Welf. & Inst. Code § 15657.3(d)(1).) However, “[i]f the personal representative refuses to commence or maintain an action or if the personal representative’s family or an affiliate . . . is alleged to have committed abuse of the elder,” then the Legislature has granted “standing to commence or maintain an action for elder abuse” to three categories of people:

(A) An intestate heir whose interest is affected by the action.

(B) The decedent’s successor in interest, as defined in Section 377.11 of the Code of Civil Procedure.

(C) An interested person, as defined in Section 48 of the Probate Code, as limited in this subparagraph. As used in this subparagraph, “an interested person” does not include a creditor or a person who has a claim against the estate and who is not an heir or beneficiary of the decedent’s estate.”

(Id.) For purposes of the statute, a “successor in interest” is “the beneficiary of the decedent’s estate or other successor in interest who succeeds to a cause of action or to a particular item of the property that is the subject of a cause of action.” Cal. Code Civ. Proc. § 377.11. An “interested person” includes any of the following:

(1) An 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.

(2) Any person having priority for appointment as personal representative.

(3) A fiduciary representing an interested person.”

(Cal. Prob. Code § 48.)

Defendant argues that Plaintiff does not have standing to assert a claim for elder abuse. Defendant argues that Plaintiff is not a personal representative of the Decedent. Instead, Decedent designated his son, Defendant Brian Andrew Murrieta, to hold his power of attorney and serve as his successor trustee—not Plaintiff. (FAC, ¶¶ 27, 30.) Defendant argues that since the FAC wholly lacks any allegations regarding Plaintiff’s standing, Plaintiff has failed to show (1) whether she is an “intestate heir whose interest is affected by the action” or (2) an “interested person” who has any interest related to Decedent’s trust estate or estate “that could be impaired, defeated, or benefited by the proceeding in question.”

Plaintiff argues that the FAC sufficiently states facts to show that “as a result of Defendant’s alleged abuse of the Decedent … Decedent exercised his power of appointment to amend the Murrieta Revocable Trust in 2019 to provide for a distribution of all of Decedent’s interest in the Murrieta Family Partnership (“Partnership”) to Defendant, Brian Murrieta, rather than to both of his still living children in equal shares.” (Opp., p. 4:20-27.) Yet, nowhere in the FAC is this allegation found. The December 22, 2017 Amendment makes reference to equal shares among the children (FAC, Ex. D, Amendment of the Murietta Revocable Trust and Exercise of Powers of Appointment, para. 3.) but this is the very document Plaintiff alleges is invalid. The Court determines that the FAC fails to sufficiently allege Plaintiff’s interest in Decedent’s trust estate. Therefore, Plaintiff has failed to establish standing.

Accordingly, Defendant’s Demurrer is SUSTAINED with 20 days leave to amend.