Judge: Loren G. Freestone, Case: 37-2023-00032827-CU-OR-CTL, Date: 2023-12-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 07, 2023

12/08/2023  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  Other Real Property Demurrer / Motion to Strike 37-2023-00032827-CU-OR-CTL KOLLENBORN VS THE ESTATE OF JEANNE LESSNER [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendants Sherry Germain and Laurie Mears (as co-executors of the Estate of Jeanne Lessner)'s demurrer to Plaintiff Frances Kollenborn's complaint is SUSTAINED IN PART and OVERRULED IN PART.

Preliminary Matters Germain and Mears' unopposed request for judicial notice of Lessner's death certificate, the 1999 quitclaim deed, and various documents on file in this case, the probate matter (22-17190), and the unlawful detainer matter (23-13414) is granted.

The court notes that Germain and Mears have only appeared and demurred in their capacities as co-executors of the Estate of Jeanne Lessner. Thus, the claims alleged against them in their individual capacities are not presently at issue.

Analysis Germain and Mears demur based on the one-year statutes of limitation contained in Code of Civil Procedure sections 366.2 and 366.3.

The demurrer is overruled as to the first, fourth, and fifth causes of action. To the extent these claims merely seek to quiet title/confirm Kollenborn as the current owner of the property, and preserve that alleged ownership interest in the property, they do 'not state a cause of action 'on a liability of the person' as is required to invoke the limitation period of Code of Civil Procedure section 366.2, subdivision (a).' (See Estate of Yool (2007) 151 Cal.App.4th 867, 875–876.) And to the extent these claims are premised on an alleged promise to deed Kollenborn the property during Lessner's lifetime, rather than to distribute it to Kollenborn upon Lessner's death, section 366.3 is also inapplicable. (See Yeh v. Tai (2017) 18 Cal.App.5th 953, 965–966.) The demurrer is sustained as to the second cause of action. This claim-which alleges Lessner was unjustly enriched by receiving property taxes/HOA dues/insurance payments for 20 years, and which seeks restitution to the tune of $218,896- needed to be filed within one-year. (Code Civ. Proc., § 366.2, subd. (a); see Estate of Ziegler (2010) 187 Cal.App.4th 1357, 1367.) Kollenborn's reliance on Yeh is misplaced because there is no other applicable statute of limitations specifically addressing unjust Calendar No.: Event ID:  TENTATIVE RULINGS

3032988  45 CASE NUMBER: CASE TITLE:  KOLLENBORN VS THE ESTATE OF JEANNE LESSNER [IMAGED]  37-2023-00032827-CU-OR-CTL enrichment claims against decedents that conflicts with section 366.2. (Yeh, supra, 18 Cal.App.5th at p. 963.) Kollenborn's reliance on Battuello v. Battuello (1998) 64 Cal.App.4th 842 is likewise misplaced because she does not allege that Germain or Mears made any representations to her to lull her into not timely filing her claim within one year. (See id. at pp. 847–848; Embree v. Embree (2004) 125 Cal.App.4th 487, 497.) Conclusion The demurrer is therefore overruled as to the first, fourth, and fifth causes of action, and sustained without leave to amend as to the second cause of action. Germain and Mears, as co-executors, shall answer within 10 days. Germain and Mears shall also file a notice of related case in the probate matter alerting the court to the pendency of this action.

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