Judge: Melissa R. Mccormick, Case: Silva v. Pinchot, Date: 2022-10-13 Tentative Ruling
Defendant Gifford Pinchot’s Demurrer to Second Amended Complaint
Defendant Gifford Pinchot demurs to the three causes of action in plaintiff Dyrce Garcez Silva’s second amended complaint. For the following reasons, Pinchot’s demurrer is overruled in part and sustained in part with leave to amend.
In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556. Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice. Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 n.7.
Plaintiff alleges her causes of action in four separate capacities: (1) individually, (2) as successor trustee of The Mary Ann Pinchot Revocable Trust dated January 2, 2009, (3) as trustee of The Dyrce Silva Living Trust dated March 1, 2018, and (4) as successor in interest to the Estate of Mary Ann Pinchot. Section 378 allows multiple parties to “join in one action as plaintiffs” if “[t]hey assert any right to relief jointly, severally, or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action.” Plaintiff’s claims arise out of the same transaction, occurrence, or series of transactions or occurrences, and there are common questions of law and/or fact. The demurrer for misjoinder is overruled.
Plaintiff’s first cause of action seeks an accounting. “An action for an accounting has two elements: (1) ‘that a relationship exists between the plaintiff and the defendant that requires an accounting,” and (2) “that some balance is due the plaintiff that can only be ascertained by an accounting.’” Sass v. Cohen (2020) 10 Cal.5th 861, 869 (citations omitted).
The second amended complaint alleges that in or about May 2002 Pinchot took sole control of the properties at issue and promised to manage them and to remit to decedent an undivided 50% of all rents and earnings derived from the properties. SAC ¶ 20. The decedent died in Orange County, California on or about May 20, 2020. SAC ¶ 23. Pursuant to the terms of the decedent’s will, plaintiff was identified as the decedent’s successor in interest. Id. In August 2020 pursuant to the terms of The Mary Ann Pinchot Revocable Living Trust dated January 2, 2009, the trust’s undivided 50% interest in the properties was transferred to plaintiff, who then transferred the full, undivided 50% interest to The Dyrce Silva Living Trust with plaintiff as the trustee. SAC ¶ 24.
The first cause of action alleges plaintiff—individually, as successor trustee of the Mary Ann Pinchot Revocable Living Trust dated January 2, 2009, as trustee of the Dyrce Silva Living Trust dated March 1, 2018, and as successor in interest to the Estate of Mary Ann Pinchot—co-owns and/or is a tenant in common with defendant, and that plaintiff and defendant each own half of the properties. SAC ¶ 27. Plaintiff alleges defendant has maintained full control of and the management of the properties since 2002, has asserted ownership and control over the earnings and rents collected from the tenants of the properties, has taken such to his own use, and has not provided plaintiff with a proper accounting of the earnings and rents earned from the properties. SAC ¶ 28.
Plaintiff individually has not alleged the existence of a relationship between plaintiff individually and defendant that requires an accounting. The demurrer to the first cause of action is sustained to the extent the cause of action is brought by plaintiff Dyrce Garcez Silva as an individual.
An executor or trustee of an estate is the real party in interest for purposes of bringing a claim on the estate’s behalf and may bring suit on the claims without joining as parties the beneficiaries of the estate or trust. See Cal. Civ. Proc. Code § 369(a)(1). According to the second amended complaint, plaintiff transferred the Mary Ann Pinchot Revocable Living Trust’s undivided 50% interest in the properties to plaintiff individually, who then transferred the full, undivided 50% interest to The Dyrce Silva Living Trust with plaintiff as the trustee. SAC ¶ 24. Plaintiff, as successor trustee of the Mary Ann Pinchot Revocable Living Trust dated January 2, 2009, has not alleged the existence of a relationship between plaintiff as successor trustee and defendant that requires an accounting. The demurrer to the first cause of action is sustained to the extent the cause of action is brought by plaintiff Dyrce Garcez Silva as successor trustee.
The second amended complaint alleges the necessary elements for an accounting as to plaintiff as trustee of the Dyrce Silva Living Trust dated March 1, 2018. The second amended complaint alleges a relationship between plaintiff as trustee and defendant and that a balance is due to plaintiff as trustee that can only be ascertained by an accounting. SAC ¶¶ 18-21, 24, 27-28.
Defendant argues there is clearly an adequate remedy at law because any damages can be made certain by calculation. An action for an accounting has been characterized as “a means of discovery.” Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 180 (“the purpose of the accounting is, in part, to discover what, if any, sums are owed to the plaintiff, and an accounting may be used as a discovery device”). Here, plaintiff as trustee of the Dyrce Silva Living Trust seeks an accounting because she lacks the information necessary to determine the precise amount that may be due. The demurrer to the first cause of action is overruled to the extent the cause of action is brought by plaintiff as trustee of the Dyrce Silva Living Trust.
Plaintiff as successor in interest to the decedent’s estate has not alleged the existence of a relationship between plaintiff as successor in interest and defendant that requires an accounting. The second amended complaint alleges the properties were transferred to the decedent’s trust, from the decedent’s trust to plaintiff individually, and then from plaintiff to plaintiff’s trust. The demurrer to the first cause of action is sustained to the extent the cause of action is brought by plaintiff as successor in interest to the decedent’s estate.
Plaintiff’s second cause of action seeks a partition of two properties. “‘“[S]tanding to sue . . . is the right to relief in court.”’” People ex rel. Depart. of Conservation v. El Dorado County (2005) 36 Cal.4th 971, 988. Standing in a partition action is conferred by statute. California Civil Procedure Code section 872.210 provides that “[a] partition action may be commenced and maintained by . . . [¶] . . . [¶] . . . [a]n owner of an estate of inheritance, an estate for life, or an estate for years in real property where such property or estate therein is owned by several persons concurrently or in successive estates.” Cal. Civ. Proc. Code § 872.210(a)(2).
The second amended complaint does not allege sufficient facts demonstrating that plaintiff individually, as successor trustee of the Mary Ann Pinchot Revocable Living Trust dated January 2, 2009, and as successor in interest to the decedent’s estate has standing to bring a partition action for the properties. The second amended complaint does not allege facts demonstrating plaintiff in those capacities is an owner of an estate of inheritance, an estate for life, or an estate for years in the properties. The demurrer to the second cause of action is sustained to the extent the cause of action is brought by plaintiff individually, as successor trustee of the Mary Ann Pinchot Revocable Living Trust, and as successor in interest.
The second amended complaint alleges all of the elements required by Civil Procedure Code section 872.230 for a partition cause of action by plaintiff as trustee of the Dyrce Silva Living Trust: a description of the property at issue (the properties), the respective interests that plaintiff as trustee of the Dyrce Silva Living Trust and defendant have in properties, and a request for relief. SAC ¶¶ 18-21, 24, 27-28, 34-35, 40. The second amended complaint also alleges that a division into subparcels of equal value cannot be made and that dividing the land would substantially diminish each party’s interest, such that each cotenant’s portion would be of substantially less value than that received from a sale. SAC ¶ 38. The demurrer to the second cause of action is overruled extent the cause of action is brought by plaintiff as trustee of the Dyrce Silva Living Trust.
Plaintiff’s third cause of action alleges breach of fiduciary duty. “The elements of a cause of action for breach of fiduciary duty are the existence of a fiduciary relationship, its breach, and damage proximately caused by that breach.” Knox v. Dean (2012) 205 Cal.App.4th 417, 432.
The second amended complaint alleges a fiduciary relationship between defendant and the decedent. SAC ¶ 44. The second amended complaint does not allege a fiduciary relationship between plaintiff and defendant or any specific facts demonstrating plaintiff is a successor in interest who may bring this cause of action on behalf of the decedent. The demurrer to the third cause of action is sustained.
The court will only sustain a demurrer for uncertainty if a pleading is so poorly drafted that defendants cannot reasonably respond. Khoury v. Maly’s of California Inc. (1993) 14 Cal.App.4th 612, 616. The second amended complaint is not “so incomprehensible that [cross-defendants] cannot reasonably respond.” Lickiss v. Financial Industry Regulatory Authority (2010) 208 Cal.App.4th 1125, 1135. Any “ambiguities can be clarified under modern discovery procedures.” Khoury, 14 Cal.App.4th at 616. The demurrer for uncertainty is overruled.
Defendant’s unopposed request for judicial notice is granted as to the recordation of the trust certification. The court does not take judicial notice of factual matters stated within the Mary Ann Pinchot Living Trust document. See Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117 (“the fact a court may take judicial notice of a recorded deed, or similar document, does not mean it may take judicial notice of factual matters stated therein”).
Should plaintiff desire to file an amended complaint that addresses the issuing in this ruling, plaintiff must file and serve it by October 24, 2022.
Defendant to give notice.
Defendant Gifford Pinchot’s Motion to Strike Second Amended Complaint
Defendant Gifford Pinchot moves to strike portions of plaintiff Dyrce Garcez Silva’s second amended complaint. For the following reasons, Defendant’s motion is granted in part and denied in part.
A court may strike out any irrelevant, false, or improper matter inserted in any pleading or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule or an order of the court. Cal. Civ. Proc. Code § 436. “Irrelevant” matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not support by the allegations of the complaint. Cal. Civ. Proc. Code § 431.10(b).
Paragraph 36 of the second amended complaint alleges plaintiff received the decedent’s 100% interest in and ownership of the Loretta property, and that defendant has no interest in the Loretta property. Plaintiff did not address defendant’s motion to strike paragraph 36 in the opposition, and thus appears to concede the allegation is irrelevant. The motion to strike paragraph 36 is granted.
Given the court’s concurrent ruling sustaining relevant portions of defendant’s demurrer to the second amended complaint with leave to amend, the remainder of defendant’s motion to strike is denied as moot.
Should plaintiff desire to file an amended complaint addressing the issues in this ruling, plaintiff must file and serve it by October 24, 2022.
Defendant to give notice.