Judge: Martha K. Gooding, Case: 2022-01251575, Date: 2022-09-26 Tentative Ruling
1) Demurrer to Complaint
2) Case Management Conference
Demurrer to Complaint
The Demurrer to the Complaint brought by Defendant Edward Cirnigliaro is MOOT as to the Second Cause of Action, which Plaintiff voluntarily dismissed on July 29, 2022. (ROA No. 23). The Demurrer is SUSTAINED, with 15 days leave to amend, as to the sole remaining First Cause of Action.
The Demurrer to the First Cause of Action for Elder Abuse is sustained on the ground that Defendant has not alleged sufficient facts to demonstrate standing.
Pursuant to Welfare & Institutions Code §15657.3, “after the death of the elder or dependent adult, the right to commence or maintain an action shall pass to the personal representative of the decedent.” (Welfare & Institutions Code §15657.3(d)(1)).
As explained by the Court in Tepper v. Wilkins (2017) 10 Cal.App.5th 1198, “personal representative” is defined as “’a person or entity that is either’ ‘(1) [a] conservator, trustee, or other representative of the estate of an elder or dependent adult’ or ‘(2) [a]n attorney-in-fact of an elder or dependent adult who acts within the authority of the power of attorney.” (Id. at 1204; See also Welfare & Institutions Code §15610.30(d)).
“If there is no personal representative, the right to commence or maintain an action shall pass to any of the following, if the requirements of Section 377.32 of the Code of Civil Procedure are met: (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; or (C) An interested person as defined in Section 48 of the Probate Code, as limited in this subparagraph. (Welfare & Institutions Code §15657.3(d)(1)) 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.).
Pursuant to Welfare & Institutions Code §15657.3(d)(2), “[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 or dependent adult, the persons described in subparagraphs (A), (B), and (C) of paragraph (1) shall have standing to commence or maintain an action for elder abuse.”
Here, the Complaint does not allege Plaintiff is the “personal representative” of the decedent. Nor does the Complaint allege the absence of a personal representative or the existence of an abusive personal representive, as referenced in Welfare & Institutions Code §15657.3(d)(2). Similarly, the Court finds no allegations in the Complaint that Plaintiff falls within one of the three categories of individuals permitted to pursue this action under Welfare & Institutions Code §15657.3(d)(2).
At most, Plaintiff alleges he is the son of the decedent. (¶3 of Complaint); however, Welfare & Institutions Code §15657.3(d) appears to contemplate something more than a familial relationship to confer standing.
Welfare & Institutions Code §15657.3(d)(1)(A), for example, refers to an “intestate heir whose interest is affected by the action.” Similarly, Welfare & Institutions Code §15657.3(d)(1)(B) refers to a successor in interest as defined by C.C.P. §377.11. This provision in turn indicates a successor in interest “means 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.” (C.C.P. §377.11). Similarly, as discussed in Tepper, standing under Probate Code §48 and Welfare & Institutions Code §15657.3(d)(1)(C) requires “an interest in a trust estate or estate of the decedent that may be affected by the proceeding.” (Tepper v. Wilkins (2017) 10 Cal.App.5th 1198, 1206).
Indeed, the Court in Tepper expressly noted that a familial relationship, alone, was insufficient to demonstrate standing pursuant to Probate Code §48 and, therefore, similarly insufficient to allege standing pursuant to Welfare & Institutions Code §15657.3(d)(1)(C), which references the same. (Tepper v. Wilkins (2017) 10 Cal.App.5th 1198, 1206).
Based on all of the above, the Court finds that the Complaint does not sufficiently allege standing; however, because this is Plaintiff’s first attempt at pleading, leave to amend is GRANTED.
Additionally, the Court sustains the Demurrer to the First Cause of Action on the ground that the claim is insufficiently and unclearly alleged.
As explained by Welfare & Institutions Code §15610.30(a), “financial abuse” occurs when a person or entity “[t]akes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud.” (Welfare & Institutions Code §15610.30(a)(1)). Liability also attaches to one who assists in the above or one who accomplishes the above through undue influence. (Welfare & Institutions Code §15610.30(a)(2) and (3)).
“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.” (Welfare & Institutions Code §15610.70(a)).
Finally, “a person or entity takes, secrets, appropriates, obtains, or retains real or personal property when an elder or dependent adult is deprived of any property right, including by means of an agreement, donative transfer, or testamentary bequest, regardless of whether the property is held directly or by a representative of an elder or dependent adult.” (Welfare & Institutions Code §15610.30(c)).
Here, it is unclear what property of the decedent’s Defendant is alleged to have taken, secreted, appropriated or obtained.
Notably, the Complaint alleges Defendant coerced the decedent into amending her will and disinheriting Plaintiff. (Complaint ¶12 and ¶18). Indeed, this allegation is repeated directly within the claim for financial elder abuse (Complaint ¶28); however, it is unclear whether an amendment to the decedent’s will deprived the decedent of a property right.
Although Welfare & Institutions Code §15610.30(c) references the loss of property through a testamentary bequest, this appears to refer not to a testamentary bequest made by the elder adult, but to a testamentary bequest in favor of the elder adult. (Ring v. Harmon (2021) 72 Cal.App.5th 844, 854-855 [finding elderly plaintiff adequately stated claim for elder abuse, pursuant to §15610.30(c), based on conduct which reduced her interest as a beneficiary to her deceased daughter’s estate]).
Additionally, the Complaint alleges “on information and belief” that the Defendant took “property and other financial assets belonging to Decedent…” (Complaint ¶29 and ¶30); however, the property is not identified and it is not specified whether the property was taken before or after the decedent’s death.
Significantly, as a statutory claim, Elder Abuse must be pled with particularity.(See Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790). Further, allegations made on “information and belief” are improper, where a Complaint fails to allege “such information that lead[s] [the plaintiff] to believe that the allegations are true.” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 551, fn. 5).
Based on all of the above, the Court finds the claim is not alleged with sufficient particularity.
Defendant is ordered to give notice.