Judge Melvin D. Sandvig, Case Number: 23CHCV01639, Date: 2024-02-14 Tentative Ruling

Judge: Melvin D. Sandvig, Case: 23CHCV01639, Date: 2024-02-14 Tentative Ruling

Case Number: 23CHCV01639 Hearing Date: February 14, 2024 Dept: F47

Dept. F47

Date: 2/14/24

Case #23CHCV01639

DEMURRER TO THE ORIGINAL COMPLAINT

Demurrer filed on 12/28/23.

MOVING PARTY: Defendants Marc Davis and Mom’s Haus, LLC

RESPONDING PARTY: Plaintiff Geneva Fontenette

NOTICE: ok

Demurrer is to the entire complaint:

1. Financial Elder Abuse

2. Unfair Business Practices

3. Breach of Contract

4. Breach of Covenant of Good Faith and Fair Dealing

5. Unjust Enrichment

6. Negligent Misrepresentation

RULING: The demurrer is sustained without leave to amend as to the 2^nd, 4^th, 5^th and 6^th causes of action and with 30 days leave to amend as to the 1^st and 3^rd causes of action.

SUMMARY OF FACTS & PROCEDURAL HISTORY

This action arises out of an “Operating Agreement” entered on 5/5/20 between Defendant Mom’s Haus, LLC (Mom’s Haus) and Plaintiff Geneva Fontenette (Plaintiff). The “Operating Agreement” was signed by Defendant Marc Davis (Davis) on behalf of Mom’s Haus, LLC. Pursuant to the “Operating Agreement,” Mom’s Haus was purchasing the restaurant Mom’s Bar-B-Que House from Plaintiff.

Pursuant to the agreement, Mom’s Haus was to pay Plaintiff a total of $70,000.000 with $35,000.00 due on 5/1/20 and the remaining balance paid in 24 monthly installments of $1,458.33 to begin not less than 90 days after the expiration of the California statewide mandate on business closures pursuant to the Covid-19 pandemic. (See Complaint , Ex.B).

The complaint alleges that Davis began making the monthly payments in July 2021. (Complaint ¶8). However, Davis did not make the November and December 2021 payments due a dispute regarding the security deposit for the lease of the restaurant. (Complaint ¶9). Plaintiff further alleges that Davis failed to make the April and May 2022 payments because of a dispute regarding taxes Plaintiff allegedly owed on the business. (Complaint ¶10). Plaintiff alleges that “Defendant” stopped making payments after December 2022. (Complaint ¶¶11-12). Plaintiff alleges that “Defendant” defaulted on 10 of 24 payments for a total of “approximately $14,583.30.” (Complaint ¶13).

On 6/7/23, Plaintiff filed the instant action against Davis and Mom’s Haus for: (1) Financial Elder Abuse, (2) Unfair Business Practices, (3) Breach of Contract, (4) Breach of Covenant of Good Faith and Fair Dealing, (5) Unjust Enrichment and (6) Negligent Misrepresentation. After meet and confer efforts failed to resolve all of the issues Defendants had with the complaint, on 12/28/23, Defendants filed and served the instant demurrer to the entire complaint on Plaintiff’s former counsel. Plaintiff’s current counsel has waived the defect in service and on 1/31/24 filed and served an opposition to the demurrer. (See Opposition, p.2:15-16).

ANALYSIS

The opposition states that Plaintiff will delete the 2^nd, 4^th, 5^th and 6^th causes of action in a First Amended Complaint and indicates that the demurrer to these causes of action should be sustained without leave to amend. (See Opposition, p.4:20-27, p.5:21-22). As such, the Court will not address Defendants’ arguments to those causes of action.

1^st cause of action – Financial Elder Abuse

First, the complaint incorrectly identifies the elder who allegedly suffered financial elder abuse as “decedent Thomas E. Schertz.” (Complaint ¶15).

Welfare and Institutions Code 15610.30 provides:

“(a) ‘Financial abuse’ of an elder or dependent adult occurs when a person or entity does any of the following:

(1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.

(2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.

(3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Section 15610.70.

(b) A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.

(c) For purposes of this section, a person or entity takes, secretes, 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.

(d) For purposes of this section, “representative” means a person or entity that is either of the following:

(1) A conservator, trustee, or other representative of the estate of an elder or dependent adult.

(2) An attorney-in-fact of an elder or dependent adult who acts within the authority of the power of attorney.”

Statutory claims, such as a claim for financial elder abuse, must be pled with particularity. See Covenant Care, Inc. (2004) 32 C4th 771, 790; Carter (2011) 198 CA4th 396, 410. The opposition concedes that Plaintiff’s complaint fails to allege that Plaintiff qualifies as an elder under the Elder and Dependent Adult Abuse Act. (See Opposition, p.3:24-26). Even if the complaint identified the correct plaintiff and alleged that Plaintiff was over 65 years of age at the time of the conduct alleged, the complaint fails to allege sufficient specific facts to state a claim for financial elder abuse. The facts alleged indicate a possible breach of contract, not the type of egregious conduct the Elder and Dependent Adult Abuse Act was intended to address.

3^rd cause of action – Breach of Contract

The complaint and the opposition to the demurrer confusingly state that Plaintiff is making a claim for breach of a life insurance contract. (See Complaint p.5:1; Opposition, p.5:2-6). Since a life insurance contract does not appear to be at issue in this case, it is not clear what contract is the subject of the 3^rd cause of action.

CONCLUSION

The demurrer to the 1^st and 3^rd causes of action is sustained with 30 days leave to amend. The demurrer to the 2^nd, 4^th, 5^th and 6^th causes of action is sustained without leave to amend.