Judge Matthew C. Braner, Case Number: 37-2024-00000068-CU-BC-CTL, Date: 2024-06-28 Tentative Ruling

Judge: Matthew C. Braner, Case: 37-2024-00000068-CU-BC-CTL, Date: 2024-06-28 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 27, 2024

06/28/2024 09:00:00 AM C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited Breach of Contract/Warranty Demurrer / Motion to Strike 37-2024-00000068-CU-BC-CTL PIERRO VS THE ESTATE OF ROBERT W. AMES [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant the Estate of Robert W. Ames, Defendant the Robert W. Ames Trust, and Defendant Lincoln H. Banks as Successor Trustee (collectively 'Defendants')'s Demurrer to Plaintiff's Complaint is SUSTAINED with leave to amend.

In support of their Demurrer, Defendants request that the Court take judicial notice of several documents: (A) Plaintiff's Complaint; (B) 'Party Name' search results of the Court's Register of Probate Actions; (C) a list of names produced under Contractor Personnel Search Results. Defendants' Request for Judicial Notice is GRANTED. The Court takes judicial notice of the existence of these documents but not the truth of matter contained in these documents.

A demurrer shall be sustained if the complaint 'does not state facts sufficient to constitute a cause of action.' (Code Civ. Proc., � 430.10(e).) To test the sufficiency of a cause of action, the court treats as true 'all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.' (Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010.) The court may also consider matters that have been judicially noticed. (Id.) The court shall give the complaint a 'reasonable interpretation, reading it as a whole and its parts in their context.' (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Probate Code � 9100 Defendants' Demurrer on the grounds that the Complaint fails to plead satisfaction of the prerequisites set forth in Probate Code section 9100 is SUSTAINED.

Defendants argue, and Plaintiff acknowledges, that in order to file a valid claim for breach of contract against a decedent's estate and estate representatives, a creditor must either file a claim in probate in accordance with Probate Code section 9100 or establish that an exception applies. (E.g., Varney v. Superior Court (1992) 10 Cal.App.4th 1099, 1101; Satterfield v. Garmire (1967) 65 Cal.2d 638, 645; Estate of Sturm (1988) 201 Cal.App.3d 14, 18.) Here, Plaintiff has not pleaded that he timely filed a claim in probate, nor has he stated facts sufficient for the Court to determine whether an exception applies. Though Plaintiff argues in his Opposition that estate representatives induced him not to file a probate claim, suggests that the estate representatives may have formed new contracts for services with him, and claims to be exempt from filing a claim in probate, (Opp'n, pg. 5) the Complaint contains no factual allegations which would support these claims.

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3101314 10 CASE NUMBER: CASE TITLE: PIERRO VS THE ESTATE OF ROBERT W. AMES [IMAGED] 37-2024-00000068-CU-BC-CTL The only allegations that the agreement included any provisions for specific property or specific performance in the Complaint are that Plaintiff was to reside at decedent's property without obligation to pay rent for the duration of the job. (Id. � 8.) Defendants seemingly fulfilled this portion of the agreement.

(Id. � 14.) California Code of Civil Procedure � 366.2 Defendants' Demurrer on the grounds that the Complaint is untimely under section 366.2 of the California Code of Civil Procedure is OVERRULED.

Section 366.2 of the California Code of Civil Procedure provides, '[i]f a person against whom an action may be brought on a liability of the person, whether arising in contract, tort, or otherwise, and whether accrued or not accrued, dies before the expiration of the applicable limitations period, and the cause of action survives, an action may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply.' Section 366.2 does not apply here as it contemplates a pre-existing cause of action which 'survives' the decedent. Defendants cite to Bradley v. Breen (1999) 73 Cal.App.4th 798, to support their position that Plaintiff needed to file suit within one year of the decedent's death. (Def's Mem. of Points and Authorities in Support of Demurrer ('Def's Mem.'), pg. 11.) However, Bradley notes that section 366.2 'governs causes of action against a decedent that existed at the time of death.' (73 Cal.App.4th at 798). Here, no cause of action existed until Defendants' alleged breach via their refusal to pay Plaintiff's invoice.

Section 366.2 controls actions based on 'liability of the person' of the decedent. Here, no liability had attached to the decedent at the time of his death as he had not breached any terms of the agreement with Plaintiff. (Dacey v. Taraday (2011)196 Cal.App.4th 962, 967) In Dacey, the Second District Court of Appeal held that the one-year time limit in section 366.2 did not apply because 'at the time of [decedent]'s death, there was no wronged party.' (Id. at 982.) Similarly, the Fourth District Court of Appeal held that section 366.2 is inapplicable to actions which could not have been brought against the decedent when they were alive. (Shewry v. Begil (2005) 128 Cal.App.4th 639, 644 [27 Cal.Rptr.3d 209, 212], as modified (May 4, 2005).) Sufficiency of Complaint Defendants' Demurrer on the grounds that the Complaint fails to state a claim is OVERRULED.

A breach of contract claim consists of the following elements: '(1) existence of the contract; (2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; and (4) damages to plaintiff as a result of the breach.' (CDF Firefighters v. Maldonado (2008) 158 Cal.App.4th 1226, 1239, 70 Cal.Rptr.3d 667.) Here, Plaintiff alleged that he and the decedent formed an oral contract prior to the decedent's death, that he performed services in fulfillment of that contract, that decedent's estate representatives subsequently breached by failing to pay him in accordance with the contract, and that he suffered damages as a result. (Compl. �� 7, 8, 13, 14, 20-24.) Plaintiff also asserts claims for quantum meruit, unjust enrichment, and restitution based on the estate's refusal to compensate him for the improvements he made to decedent's property. (Compl. �� 25-33.) Pleading the legal effect (i.e., enough facts to show actionable breach of an enforceable agreement) is good enough. (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 401-402; see also Stevenson v. San Francisco Housing Authority (1994) 24 Cal.App.4th 269, 284; and Bowden v. Robinson (1977) 67 Cal.App.3d 705, 718.) The Complaint alleges sufficient facts to state the claims asserted.

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3101314 10 CASE NUMBER: CASE TITLE: PIERRO VS THE ESTATE OF ROBERT W. AMES [IMAGED] 37-2024-00000068-CU-BC-CTL The Statute of Frauds does not apply because although the services Plaintiff rendered took more than a year to complete and continued after decedent's death, the duration of his work and his consequent stay on the property did not arise from the contract 'by its terms.' (Romano v. Wilbur Ellis & Co. (1947) 82 Cal. App. 2d 670, 674 ('An oral contract is not void on its face because it may continue an obligation for more than one year.'); Russell v. Int'l Alliance of Theatrical Stage Employees & Moving Picture Machine Operators (1944) 66 Cal. App. 2d 691, 700.) Plaintiff's claims are not barred by purported illegality as '[t]he facts alleged in the complaint in this action do not show on their face that the contract sued upon was unlawful.' (Gelb v. Benjamin (1947) 78 Cal.App.2d 881, 884.) Trust and Estate as Named Parties Defendants' Demurrer on the grounds that the Robert W. Ames Estate and the Robert W. Ames Trust are not proper parties to this action is SUSTAINED.

The proper parties to an action to recover from a decedent's estate are the estate representative(s) and/or trustee(s). Plaintiff does not argue otherwise.

California courts liberally grant leave to amend if there is any reasonable possibility that amendment can cure the defects in a complaint. (JPMorgan Chase Bank, N.A. v. Ward (2019) 33 Cal.App.5th 678, 684, citing Blank, supra.) Such a possibility exists here.

Defendants' Demurrer is sustained with leave to amend. Plaintiff has 30 days from entry of this order to file and serve an amended complaint.

If the tentative is confirmed, the minute order is the order of the court.

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