Judge: Margaret L. Oldendorf, Case: 21BBCV00545, Date: 2023-04-07 Tentative Ruling


Case Number: 21BBCV00545    Hearing Date: April 7, 2023    Dept: P

 

 

 

 

 

 

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

 

TORI LYNN POLLOCK,

 

                                            Plaintiff,

vs.

 

TAMERA ANN AGOVINO, individually and as trustee of the CYNTHIA JOAN POLLOCK LIVING TRUST DATED 10/28/2018; RYAN PAGE ROBERTSON POLLOCK, individually and as trustee of the CYNTHIA JOAN POLLOCK LIVING TRUST DATED 10/28/2018; KEVIN JOSEPH AGOVINO, an individual; and DOES 1 through 25, inclusive,

 

                                            Defendants.

 

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Case No.:  21BBCV00545

 

[TENTATIVE] ORDER GRANTING DEFENDANTS’ UNOPPOSED MOTION FOR SUMMARY JUDGMENT

 

Date:   April 7, 2023

Time:  8:30 a.m.

Dept.:  P

 

           

            I.         INTRODUCTION

            In this action, Plaintiff Tori Lynn Pollock (Tori) sues her sister, her sister’s daughter, and her sister’s husband, for elder abuse. Plaintiff alleges that Defendants exerted undue influence on Cynthia Joan Pollock (Decedent), the mother of Plaintiff and her sister Tamera Ann Agovino (Tamera), while she was in the hospital at the end of her life. Decedent, then 76, was hospitalized with what was thought to be the flu but which turned out to be stage IV endometrial cancer. She died a few months later; but in the interim she prepared a will and trust that omitted Tori. Tori alleges in this action that Tamera used undue influence to obtain this result.

            Defendants present evidence demonstrating that Tori raised these same claims in a probate action (hereinafter the “Probate Action”), which was resolved against her. Tori has not filed any opposition to this motion.  Summary judgment is therefore granted in favor of Defendants and against Plaintiff.        

 

II.        LEGAL STANDARD

            Summary judgment may be granted where it is shown that an action has no merit or where there is no defense to it. Code Civ. Proc. §437c(a).

            A cause of action has no merit if one of the following exists: (1) one or more necessary elements cannot be established; (2) a defendant establishes an affirmative defense. Section §437c(o).

            A motion for summary judgment shall be granted where all the papers submitted show that there is no triable issue of material fact and that the moving party is entitled to judgment as a matter of law. Section 437c(c).

             

III.      ANALYSIS

            A. Summary of the Complaint

            The Complaint contains a single cause of action for financial elder abuse pursuant to Wel. & Inst. Code §§15610.30, 15610.43, and 15610.70; and Civ. Code §§3294 and 3345.

Wel. & Inst. Code §15610.30 defines financial abuse of an elder as occurring when a person takes, secretes, appropriates, or retains real or personal property of an elder for a wrongful use or with intent to defraud, or both. Section 15610.43 defines “isolation” as  preventing an elder from receiving mail or phone calls, among other things. Section 15610.70 defines “undue influence.” Civ. Code §§3294 and 3345 pertain to punitive and treble damages.

            In brief terms, the Complaint alleges that Decedent entered the hospital August 8, 2018 with flu-like symptoms. The diagnosis turned out to be end-stage and inoperable cancer. Hospital social workers advised Decedent to put her affairs in order. The Complaint further alleges that Decedent was offered palliative care and was provided with heavy pain killers, including morphine. Tori alleges that during the night of October 28, 2018, it was suspected that Ms. Pollock suffered a stroke, and that she had problems walking and talking. On October 28, 2018, Decedent signed papers establishing her estate plan. These documents include a trust and will, which left everything to Tamera and her daughter Ryan. Ms. Pollock passed away on November 8, 2018.

            The central allegation of the Complaint is that Defendants exerted undue influence, took advantage of Decedent’s vulnerability, and interfered with her right to dispose of her property as she wished.

 

            B. Evidence

            Defendants’ request for judicial notice of the petition filed by Tori in the Probate Action (LA Superior Court Case #19STPB05894), as well as a number of documents from that case, is granted. Evid. Code §452(d).

Exhibit 1 is a copy of Tori’s petition. Exhibit 2 is a copy of Respondents’ (Defendants’ here) motion for summary judgment. Exhibit 3 is a copy of a minute order granting judgment in Respondents’ favor on both procedural and substantive grounds. Exhibit 4 is a copy of excerpts from the transcript of Tori’s deposition in that action. Exhibit 5 is documentary evidence (email correspondence between Tori and Tamera) from the Probate Action. And Exhibit 6 is the declaration of the notary who provided services in connection with the creation of Decedent’s trust and will, including her assessment that Decedent was of sound mind and, in her lay opinion, competent.

            Other evidence supporting the motion includes the Declaration of Tamera Ann Agovino with trust documents attached as exhibits; the Declaration of Ryan Page Robertson Pollock; and the Declaration of Kevin Joseph Agovino.

 

            C. Summary Judgment is Appropriate

            “Res judicata bars not only issues that were raised in the prior suit but related issues that could have been raised.” Villacres v. ABM Industries, Inc. (2010) 189 Cal.App.4th 562, 569.

            Based on the judicially noticed documents from the Probate Action, Tori is alleging  essentially the same claims in this case that she made against Defendants in the Probate Action. No claims are alleged here that could not have been raised in the Probate Action. Because the Probate Action was resolved on the merits in favor of Defendants, the claims alleged here are barred by res judicata. (See Defendants’ Undisputed Material Facts Nos. 1-15.)

            The Court declines to grant summary judgment on the additional ground that there is no evidence to support Plaintiff’s cause of action for financial elder abuse.  Defendants have not proffered sufficient evidence to refute Plaintiff’s verified allegations.

           

IV.      CONCLUSION AND ORDER

            The motion for summary judgment is granted in favor of Defendants and against Plaintiff. The undisputed evidence demonstrates that this action is barred by res judicata.

            Defendants are ordered to provide notice of this ruling, and to prepare, serve and lodge a proposed Judgment within 10 days of today’s date.      

 

           

 

Dated:                                                                        _______________________________

                                                                                          MARGARET L. OLDENDORF

                                                                                 JUDGE OF THE SUPERIOR COURT