Judge Michael J. Strickroth, Case 2020-01137810 2023-05-22 Tentative Ruling

Judge: Michael J. Strickroth, Case: 2020-01137810, Date: 2023-05-22 Tentative Ruling

Motion for Summary Judgment and/or Adjudication

Defendant Christina Erickson-Taube’s Motion for Summary Judgment of Plaintiff’s First Amended Complaint is GRANTED.

Plaintiff’s evidentiary objections do not comply with California Rules of Court, rule 3.1354. Plaintiff’s evidentiary objections to Defendant’s Requests for Judicial Notice are OVERRULED.

The Courts rules on Plaintiff’s evidentiary objection to the Declaration of Pamela Schuur as follows: No. 1 is SUSTAINED--lack of foundation; Nos. 2, 3, 4, and 5 are SUSTAINED--hearsay; Nos. 6 and 7 are OVERRULED. The Courts OVERRULES all objections to the Declaration of Defendant Christina Erickson-Taube.

The Court rules on Defendant’s evidentiary objections to the Declaration of Plaintiff Rajesh Punjabi as follows: No 1 is SUSTAINED--lack of foundation/speculation; No. 2 is SUSTAINED--lack of authentication; Nos. 3, 4, 5, 6, 7, 9, 11, 12, 13, 16, 17, 19, 20, 21, 22, 26, 27, 30, 35, 36, 37, 38, 41, 43, 44, 45, 46, 47, 48, 49, 50 are OVERRULLED; Nos. 10, 14, 15, 18, 23, 24, 25, 28, 29, 31, 32, 39, 40, 42, 51, are SUSTAINED--lack of foundation or speculation. Nos. 8 and 31 are SUSTAINED—secondary evidence rule.

The Court rules on Defendant’s evidentiary objections to the Declaration of James C. Zanias as follows: No. 52 is OVERRULED; Nos. 53-55, 58, 59, 60, are SUSTAINED--impermissible opinion, lacks foundation, legal conclusion; Nos. 56, 57, are SUSTAINED—lacks foundation, lack of personal knowledge.

The Court rules on Defendant’s evidentiary objections to the Declaration of Jon R. Vaught as follows: Nos. 61-70 are SUSTAINED—lacks foundation, lack of personal knowledge, legal conclusion.

The Court rules on Defendant’s evidentiary objections to the Declaration of Anju Multani as follows: Nos. 71-76 are OVERRULED.

Code of Civil Procedure section 437c, subdivision (p)(2) provides, “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” Code of Civil Procedure section 437c, subdivision (f)(1), provides, in part, “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has not merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim of damages, or an issue of duty.” Code of Civil Procedure section 437c, subdivision (q), states, in part, “In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition to the motion.”

Aguilar v. Atlantic Richfield Co. (Aguilar) (2001) 25 Cal.4^th 826, 850-851, states, “Second, and generally, the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. Although not expressly, the 1992 and 1993 amendments impliedly provide in this regard for a burden of production as opposed to a burden of persuasion. A burden of production entails only the presentation of ‘evidence.’ (Evid. Code, § 110.) A burden of persuasion, however, entails the ‘establish[ment]’ through such evidence of a ‘requisite degree of belief.’ (Id., § 115.) It would make little, if any, sense to allow for the shifting of a burden of persuasion. For if the moving party carries a burden of persuasion, the opposing party can do nothing other than concede. Further, although not expressly, the 1992 and 1993 amendments impliedly provide for a burden of production to make a prima facie showing. A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.]” (Italics in original.)

“Summary judgment law in this state, however, continues to require a defendant moving for summary judgment to present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. In this particular at least, it still diverges from federal law. For the defendant must ‘support[]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ (Code Civ. Proc., § 437c, subd. (b).) The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence-as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” Id., at 854-855.

Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4^th 832, 838 (Binder) states, “Although summary judgment might no longer be considered a ‘disfavored’ procedure, [citation], the rule continues that the moving party's evidence must be strictly construed, while the opposing party's evidence must be liberally construed.” “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. [Citation.]” Id., at 839.

The allegations of the complaint determine the scope of the issues on a motion for summary judgment. Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648; Couch v. San Juan Unified School Dist. (1995) 33 Cal.App.4th 1491, 1499.

To obtain summary judgment, a defendant must negate all of the theories of liability tendered by the complaint. Aguilar, supra, at 850-851; Pultz v. Holgerson (1986) 184 Cal.App.3d 1110, 1115.

Here, Defendant’s Separate Statement in support of the moving papers has failed to comply with California Rules of Court, rule 3.1350(b), which requires that “If summary adjudication is sought...the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and repeated verbatim in the separate statement of undisputed material facts.”

Truong v. Glasser (2009) 181 Cal. App. 4th 102, 118, provides: “the court's power to deny summary judgment on the basis of failure to comply with California Rules of Court, rule 3.1350 is discretionary, not mandatory.” (internal citations omitted). Failure to state each issue verbatim in the separate statement is grounds for denying the motion. Code Civ. Proc. § 437c(b)(1); Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 744 [“Here defendants’ separate statement reflects no attempt to comply with [California Rules of Court, rule 3.1350(b)]. That alone precludes a holding that the trial court erred in denying the motion.”].

Due to this failure, the Court treats this Motion as a Motion for summary judgment and not adjudication.

Whether Plaintiff can maintain this action on behalf of the Irrevocable Trust

Probate Code 15620 provides that: “Unless otherwise provided in the trust instrument, a power vested in two or more trustees may only be exercised by their unanimous action.”

Plaintiff correctly contends the Court already determined that Plaintiff has standing in its 9-12-22 ruling on Defendant National Life Insurance’s Motion for Summary Judgment.

Intentional Interference with Prospective Economic Advantage

“The elements of the tort [of for intentional interference with prospective economic relations] include (1) the existence of a prospective business relationship containing the probability of future economic rewards for plaintiff; (2) knowledge by defendant of the existence of the relationship; (3) intentional acts by defendant designed to disrupt the relationship; (4) actual causation; and, (5) damages to plaintiff proximately caused by defendant's conduct. Buckaloo v. Johnson (1975) 14 Cal.3d 815, 827.

“With respect to the third element, a plaintiff must show that the defendant engaged in an independently wrongful act. It is not necessary to prove that the defendant acted with the specific intent, or purpose, of disrupting the plaintiff's prospective economic advantage. Instead, ‘it is sufficient for the plaintiff to plead that the defendant “[knew] that the interference is certain or substantially certain to occur as a result of his action.”’ ‘[A]n act is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.’ ‘[A]n act must be wrongful by some legal measure, rather than merely a product of an improper, but lawful, purpose or motive.’”(San Jose Construction, Inc. v. S.B.C.C., Inc. (2007) 155 Cal.App.4th 1528, 1544–1545 (internal citations omitted.).

The Directions for Use for the CACI Jury Instruction 2202 for Intentional Interference with Economic Advantage states: “Whether the conduct alleged qualifies as wrongful if proven or falls within the privilege of fair competition is resolved by the court as a matter of law. If the court lets the case go to trial, the jury’s role is not to determine wrongfulness, but simply to find whether or not the defendant engaged in the conduct. If the conduct is tortious, the judge should instruct on the elements of the tort.”

Plaintiff alleges Taube contacted National Life Insurance Co. and directed them to send all the mail regarding the policy to her. (First Amended Complaint ¶ 13.) Plaintiff then alleges National did not contact Plaintiff because of Taube’s representations. (FAC ¶ 17.) Plaintiff further alleges Taube let the policy lapse. (FAC ¶ 26.)

Defendant establishes the following. Upon finding the policy, and believing Ms. Parpriani was the owner of the policy, she sent a letter to National Life stating, “Please be advised that I, Christina Erickson-Taube, have been court appointed as the Conservator of the Person and Estate of Priya Parpiani and the Trustee of the Priya Parpiani Revocable Trust . . . Upon receipt of this correspondence, kindly provide me with details regarding the account (s) she has with your institution” and requested that National Life update the address on file to Erickson-Taube’s office address, 12792 Valley View St., Suite 208, Garden Grove, California, 92845. (MUFs 19, 20.) National Life responded stating: ““Research of our records do not show any policy personally owned by Priya Parpiani nor do we have a policy owned by the Priya Parpiani Revocable Trust. As such you will not be able to act in the capacity as trustee. According to our records this policy is owned by the Priya Parpiani Irrevocable Trust dated October 27, 2006 of which the named co-trustees are Rajesh Punjabi and Kishin Panjabi. All dealings with this policy are restricted until this matter has been resolved.” (MUF 21.) National Life did not update or change their records to reflect a new address for the policy owner based on any correspondence from, or communications with, Erickson-Taube and Erickson-Taube did not communicate with National Life until 2018. (MUF 24, 21.)

Erickson-Taube’s attorney, Pamela Schuur, Esq., informed Plaintiff’s attorney, Anju Multani, about the policy and instructed her to contact National Life and take possession of the policy. (MUF 27.) Schuur informed Multani that neither Schuur nor Erickson-Taube could obtain the policy because the policy was owned by the trustees. (MUF 30.)

Multani eventually submitted a lost policy form signed by Plaintiff and Kishin Panjabi, the cotrustee. (MUF 35) National Life sent back a letter to Multani stating that “Ms. Parpiani transferred the ownership and beneficiary of the policy by an Absolute Assignment form, dated November 10, 2006, to the Priya Parpiani Irrevocable Living Trust dated 10/27/06. The Trustees appointed to administer this trust are Rajesh and Kishin Panjabi.” (MUF 36)

Multani further sent a letter to National Life stating: “PLEASE do not send any mail or documents to the address on file. The insured is incapacitated and we cannot access that PO Box. Please direct all mail to me at the address noted below.” (MUF 41) National Life responded to Multani and stated: “The certification/policy has already been sent out to the trustees at the address of record, 2942 E. Chapman Ave., Orange, CA 92869, not a PO Box. Because the policy owner should be getting correspondence, please have one of the trustees provide us in writing with the address of which ever trustee should be getting correspondence and notices if the above is not one of their address.” (MUF 42) Multani responded stating, “I am the attorney for the trustees[.] Do you still want a letter from them regarding the change of address[.] Thank you[,] Anju.” (MUF 43) National Life responded stating, “Yes, the trustee(s) are the only person(s) authorized to change an address. The word Trustee needs to appear by the signatures.” (MUF 44.) No evidence exists to suggest that Plaintiff followed the procedures required by National Life to update the mailing address of the Policy. (MUF 45.)

In 2016, National Life sent an annual report to the old address and it received notice this mail was undeliverable. (MUFs 46-47.) After receiving notice, National Life updated the address on file for the Policy, to 12792 Valley View Street, Suite 208, Garden Grove, California 92845-2510 (“Erickson-Taube’s address”), based on National Life’s search using a service called Accurate. (MUF 47) Additionally, the U.S.P.S. sent a Form 35427 to National Life containing Erickson-Taube’s address. (MUF 49)

National Life sent a letter to the cotrustees at Erickson-Taube’s address informing them that the policy was in danger of lapsing. (MUF 52) Erickson-Taube forwarded the letter to Plaintiff Rajesh Punjabi at 625 Valleywood Street, Corona, California 92879 and did not receive notice that it was undeliverable. (MUFs 53 and 54.)

Multani sent an email to John P. Glowacki, Esq. Erickson-Taube’s new counsel representing her in the Conservatorship and Trust Proceedings, stating: “Conservator sent a letter to my client about Priya’s life insurance premiums[.] What is my client supposed to do about that[?]” (MUF 55) Glowacki responded “Regarding the life insurance policy, it is held in the irrevocable trust. Christina is not the trustee of that trust and has no control over that policy or authority to pay its premiums. I understand one of your clients, Raj, may be the trustee. What the trustee of the irrevocable trust chooses to do with the policy is not within Christina’s authority to decide. Christina will continue to forward mail appropriately.” (MUF 56.)

Multani responded: “With respect to the insurance policy, your client also became trustee of Dr. Parpiani’s trust. If she is managing the estate, that would include the policy. If the policy lapses, then your client becomes responsible for any damages caused.” (MUF 57)

Glowacki responded: “I believe you are incorrect about the insurance policy. It is not titled in the name of the trustee of the Priya Parpiani Revocable Trust dated February 18, 2011, of which Christina Erickson-Taube was appointed trustee. The policy is in the name of “Rajesh Punjabi, et al., Trs., Priya Parpiani Irrv Trust.” That is a different trust for which Christina was appointed trustee. As a result, Christina has not had the ability to access that policy. She has no authority to pay for it from any source of funds under her control. Do you represent Rajesh Punjabi or any other Trrustee [sic] of the Irrevocable Trust? The issue needs to be addressed to them. If you do not represent him or any of them, please let me know and I will see what we can do to contact them about it directly; however, if you represent then, then we cannot contact them. (MUF 58)

On 12-7-17, National Life sent a letter directed to Plaintiff at Erickson Taube’s address. The letter stated the policy had lapsed. (MUF 60.) Erickson-Taube communicated to National that it needed to “update your records to reflect the following change of responsible party and address to: Priya Parpiani, Attn: Rajesh Punjabi, 625 Valleywood Street, Corona, California 92879.” (MUF 61.) National Life responded stating the subject Policy had lapsed, and that “it is owned by the Priya Parpiani Irrevocable Trust dated October 27, 2006,” and that the co-trustees are Rajesh Punjabi and Kishin Panjabi. (MUF 63)

On 2-5-18, Glowacki sent an email to Multani, forwarding the notices Erickson-Taube received from National Life concerning the policy, and stated, “Whatever the trustees of the irrevocable Trust decide to do with the policy is up to them. Ms. Erickson has neither the authority nor the funds to pay any premiums for this policy. Please have your client(s) take over this policy so that our client does not have to spend any more time on it.” (MUF 64)

Based on the foregoing, Defendant has established she did not instruct National Life to send all the mail regarding the policy to her after she was notified that the policy was owned by Priya Parpiani Irrevocable Trust. National Life started sending Erickson-Taube mail as a result of finding the address on Accurate and the Form 35427. Thus, there is no intentional conduct here.

Plaintiff also contends that Erickson-Taube should have paid the policy premiums. Plaintiff does not cite any legal authority for this proposition but only provides an unfounded legal opinion by Mr. Vaught. “In adjudicating summary judgment motions, courts are “not bound by expert opinion that is speculative or conjectural. [Citations.] Plaintiffs cannot manufacture a triable issue of fact through use of an expert opinion with self-serving conclusions devoid of any basis, explanation, or reasoning. [Citation.]” (McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1106, 120 Cal.Rptr.2d 23.) “The evidence must be of sufficient quality to allow the trier of fact to find the underlying fact in favor of the party opposing the motion for summary judgment. [Citation.]” (Id. at p. 1105, 120 Cal.Rptr.2d 23.) The plaintiff does not meet his burden of demonstrating a triable issue where his evidence merely provides “a dwindling stream of probabilities that narrow into conjecture.” (Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1421, 37 Cal.Rptr.2d 902.)” Nardizzi v. Harbor Chrysler Plymouth Sales, Inc., (2006) 136 Cal. App. 4th 1409, 1415.

But Erickson-Taube was the court appointed Conservator of the Person and Estate of Priya Parpiani and the Trustee of the Priya Parpiani Revocable Trust. The policy was owned by Priya Parpiani Irrevocable Trust and Rajesh Punjabi and Kishin Panjabi were the trustees.

In November 2006, National Life received an Absolute Assignment form, that transferred ownership of the Policy from Parpiani to the Priya Parpiani Irrevocable Trust dated October 27, 2006 (“Irrevocable Trust”). (MUF 4.) Pursuant to the Absolute Assignment, Parpiani transferred: a) All rights, title, and interest of the assignor in said contracts to the assignee; b) all rights the assignor has in any premium deposit fund established in connection with said contract to the assignee; and c) revokes all previous revocable beneficiary and payee designations and any settlement agreements in connection with said contracts so that any proceeds payable will be paid to the assignee in one sum. (MUF 5.)

Probate Code, §16006 states: “The trustee has a duty to take reasonable steps under the circumstances to take and keep control of and to preserve the trust property”. Again, Plaintiff provides no legal authority that Erickson-Taube had a duty to pay the premiums from Parpiani’s funds as Parpiani was not a trustee to the Irrevocable Trust. Furthermore, Plaintiff was on notice through his attorney that Erickson-Taube did not have access to any information regarding the policy and was not going to pay the premiums because it was the responsibility of the trustees. Roche v. Hyde, (2020) 51 Cal.App.5th 757, 798 (“ … an attorney is his client’s agent and the agent’s knowledge is imputed to the principal even where the agent does not actually communicate with the principal …”

Thus, Erickson-Taube had no obligation to pay the premium as the Conservator of the Person and Estate of Priya Parpiani and the Trustee of the Priya Parpiani Revocable Trust.

Based on the foregoing, Plaintiff Fails to provide evidence of any intentional wrongdoing by Erickson-Taube. Thus, this cause of action fails as a matter of law. However, due to Defendant’s failure to provide a Separate Statement on the issues to be adjudicated, the Court continues to analyze the motion.

Unfair Business Practices

The elements of a cause of action for unfair business practices are: (1) defendant engaged in unlawful, unfair or fraudulent business acts or practices, or unfair, deceptive, untrue or misleading advertising; (2) plaintiff’s entitlement to restitution and/or injunctive relief. Business & Professions Code § 17200 and 17203.

Plaintiff alleges National Life engaged in unfair business practices in violation of Business & Professions Code § 17200, et seq. by doing “nothing to avoid the lapse or ensuring that it communicated with Plaintiff about the Policy.” (First Amended Complaint ¶ 57)

Erickson-Taube provides that she sent the policy lapse notice on 9-29-17. Plaintiff admits that he received a mailing from Erickson-Taube in October 2017 but it was not a policy lapse notice. He states that it was a vague letter. Defendant correctly contends that Plaintiff’s statement is barred by the best evidence rule otherwise known as the secondary evidence rule.

Dart Industries, inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1068-1070 (Dart) explains, “We begin with the statutory law. Evidence Code section 1521, subdivision (a), provides that ‘[t]he content of a writing may be proved by otherwise admissible secondary evidence,’ excepting when ‘[a] genuine dispute exists concerning material terms of the writing and justice requires the exclusion" or when ‘[a]dmission of the secondary evidence would be unfair.’ The admission of oral testimony regarding the contents of a writing is specifically governed by section 1523, which provides, in pertinent part, that such testimony is admissible ‘if the proponent does not have possession or control of the original or a copy of the writing and . . . [¶] . . . [neither the writing nor a copy of the writing was reasonably procurable by the proponent by use of the court's process or by other available means. . . .’ [Citation.] [¶] These statutes are codifications of the venerable common law rule that lost documents may be proved by secondary evidence. In Folsom's Executors v. Scott (1856) 6 Cal. 460, 461, 1856 WL 842, the court stated: ‘The rule . . . for the admission of secondary evidence of a lost paper, requires “that a bona fide and diligent search has been unsuccessfully made for it in the place where it was most likely to be found;” and further, “the party is expected to show that he has in good faith exhausted in a reasonable degree all the sources of information and means of discovery which the nature of the case would naturally suggest, and which were accessible to him.[”]’ [¶] As was elaborated in Kenniff v. Caulfield (1903) 140 Cal. 34, 73 P. 803 (Kenniff): ‘ “If any suspicion hangs over the instrument, or that it is designedly withheld, a rigid inquiry should be made into the reasons for its non-production. But where there is no such suspicion, all that ought to be required is reasonable diligence to obtain the original—in fact, courts in such cases are extremely liberal.” ’ [Citation.’] Questions whether the search was sufficient in scope and was conducted in good faith are addressed to the discretion of the trial court, and will not be disturbed on appeal absent abuse of discretion. [Citation.] [¶] A corollary of the rule that the contents of lost documents may be proved by secondary evidence is that the law does not require the contents of such documents be proved verbatim. In Posten v. Rassette (1855) 5 Cal. 467, 1855 for example, the owner of real property gave a written power of attorney to his agent, Parker. The document was accidentally destroyed by fire, but the owner took no steps to revoke the power. A year later, acting on the same power, Parker sold the property to a third person. This court affirmed a judgment recognizing the validity of the sale. At trial, the notary who witnessed the deed of sale testified he had seen the power of attorney in question, that it had authorized Parker to sell the property, and that the document had been destroyed by fire. This court held that the testimony was sufficient to establish the existence, loss, and contents of the power of attorney. ‘In the case of lost instruments where no copy has been preserved, it is not to be expected that witnesses can recite its contents, word for word.’ [Citation.] [¶] This rule was reaffirmed in Kenniff, supra, 140 Cal. 34, 73 P. 803. There the only evidence of the contents of a lost and unrecorded deed to a parcel of real property was the testimony of the conveyancer who drafted it: he identified the blank form he had used, and said he had copied into it a description of the property taken from a prior deed of the property to the grantor and he was sure the deed was to the lot in issue. Holding this testimony to be sufficient proof of the contents of the lost deed, we stated: ‘It is not necessary, in order to admit evidence of the contents of a lost instrument, that the witnesses should be able to testify with verbal accuracy to its contents; it is sufficient if they are able to state it in substance.’ [Citation.] Subsequent cases are in accord. For example, in Seaboard National Bank v. Ackerman (1911) 16 Cal. App. 55, 116 P. 91, when all record of a judgment in a lawsuit had been destroyed by fire, the court reiterated: ‘ “In the case of a lost instrument where no copy has been preserved, it is not to be expected that witnesses can state the contents, word for word.” [Citation.] The substance of a lost or destroyed document is all that is required.’ [Citation.] [¶] The lost document cases illustrate a few of the many types of secondary evidence that courts have admitted to prove the contents of a missing instrument. For example, courts have often admitted oral testimony for this purpose. [Citations.] Courts have also admitted a standard form of the lost document [citation], as well as evidence of a routine practice of a party [citation].”

Here, Plaintiff does not establish the evidentiary prerequisites to put forth this evidence. Thus, the Court can conclude Erickson-Taube sent the policy notice regardless of whether Plaintiff received it.

Moreover, as discussed above, Defendant informed Plaintiff through his attorney of the policy and the pending lapse. Furthermore, Plaintiff’s attorney knew the address on file was not correct and National Life informed Plaintiff’s attorney about how to change it. Plaintiff did not change the address. There was nothing unlawful or unfair about Defendant’s practices.

Additionally, Plaintiff provides no evidence to establish a triable issue of fact that Erickson-Taube profited from the lapse of the Policy, that Erickson-Taube received any benefits from the Policy, or that Erickson-Taube received any of the Irrevocable Trust’s assets or payment from the Irrevocable Trust and/or its beneficiaries.

Based on the foregoing, this cause of action fails as a matter of law because Plaintiff cannot meet all elements of the claim.

Interference with Inheritance

Beckwith v. Dahl, (2012) 205 Cal. App. 4th 1039, 1057 provides: “To state a claim for [Intentional Interference with Expected Inheritance], a plaintiff must allege five distinct elements. (Munn, supra, 185 Cal.App.4th at p. 588, 110 Cal.Rptr.3d 783.) First, the plaintiff must plead he had an expectancy of an inheritance. It is not necessary to allege that “one is in fact named as a beneficiary in the will or that one has been devised the particular property at issue. [Citation.] That requirement would defeat the purpose of an expectancy claim. ... It is only the expectation that one will receive some interest that gives rise to a cause of action. [Citations.]” (Plimpton v. Gerrard (Me.1995) 668 A.2d 882, 885–886.) Second, as in other interference torts, the complaint must allege causation. “This means that, as in other cases involving recovery for loss of expectancies ... there must be proof amounting to a reasonable degree of certainty that the bequest or devise would have been in effect at the time of the death of the testator ... if there had been no such interference.” (Rest.2d Torts, § 774B, com. d, p. 59.) Third, the plaintiff must plead intent, i.e., that the defendant had knowledge of the plaintiff's expectancy of inheritance and took deliberate action to interfere with it. (See Carlson v. Warren (Ind.Ct.App.2007) 878 N.E.2d 844, 854.) Fourth, the complaint must allege that the interference was conducted by independently tortious means, i.e., the underlying conduct must be wrong for some reason other than the fact of the interference. (Doughty v. Morris

(N.M.Ct.App.1994) 117 N.M. 284, 871 P.2d 380, 383–384.) Finally, the plaintiff must plead he was damaged by the defendant's interference. (Munn, supra, 185 Cal.App.4th at p. 588, 110 Cal.Rptr.3d 783.) ¶ Additionally, an IIEI defendant must direct the independently tortious conduct at someone other than the plaintiff.”

Plaintiff alleges: “That Defendants, and each of them, redirected mail regarding the policy, its benefits, its potential and actual lapse to themselves, to others at the direction of those having no authority to direct this information, did not pay for the policy so as to keep it viable, allowed it to lapse. Further, there was no reinstatement of the policy despite request.” (First Amended Complaint ¶ 66)

Here, Erickson-Taube has established she did not engage in any intentional tortious conduct regarding the policy lapse. Moreover, Erickson-Taube established she did not owe a duty to Plaintiff. In response, Plaintiff has not raised a triable issue of material fact that Defendant engaged in independently tortious conduct let alone tortious conduct directed at someone other than Plaintiff.

Based on the foregoing, this cause of action fails as a matter of law because Plaintiff cannot meet all elements of the claim.

Violation of Penal Code section 496

Pursuant to Penal Code §496(a): “(a) Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170. However, if the value of the property does not exceed nine hundred fifty dollars ($950), the offense shall be a misdemeanor, punishable only by imprisonment in a county jail not exceeding one year, if such person has no prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290.”

Pursuant to Penal Code §496(c): “[a]ny person who has been injured by a violation of subdivision (a) or (b) may bring an action for three times the amount of actual damages, if any, sustained by the plaintiff, costs of suit, and reasonable attorney’s fees.”

As discussed above, it is undisputed that Erickson-Taube obtained Plaintiff’s mail due to National Life’s independent conduct. National Life changed the address on file after receiving notice the mail was undeliverable, searching Accurate, and obtaining a Form 35427. Thus, Erickson-Taube did not obtain Plaintiff’s mail through false pretenses.

Furthermore, Erickson-Taube provides she forwarded the mail to Plaintiff. As discussed above, Defendant’s objection to Plaintiff’s evidence that he did not receive the notice is not admissible.

Based on the foregoing, this cause of action fails as a matter of law because Plaintiff cannot meet all elements of the claim.

Negligent Interference with Prospective Economic Advantage

“The elements of this tort are: (1) an economic relationship between the plaintiff and a third party which contained a reasonably probable future economic benefit or advantage to plaintiff; (2) the defendant knew of the relationship and was aware or should have been aware that if she did not act with due care its actions would interfere with this relationship and cause plaintiff to lose in whole or in part the probable future economic benefit or advantage of the relationship; (3) the defendant was negligent; and (4) such negligence caused damage to plaintiff in that the relationship was actually interfered with or disrupted and plaintiff lost in whole or in part the economic benefits or advantage reasonably expected from the relationship.” Venhaus v. Shultz (2007) 155 Cal.App.4th 1072, 1078, quoting North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 786.

Here, as discussed above, Defendant has established that she had no duty to Plaintiff or to the Trust. Furthermore, Plaintiff cannot establish a triable issue as to breach.

Based on the foregoing, this cause of action fails as a matter of law because Plaintiff cannot meet all elements of the claim.

Probate Code § 2103

Probate Code § 2103 (a) states: “When a judgment or order made pursuant to this division becomes final, it releases the guardian or conservator and the sureties from all claims of the ward or conservatee and of any persons affected thereby based upon any act or omission directly authorized, approved, or confirmed in the judgment or order. For the purposes of this section, ‘order’ includes an order settling an account of the guardian or conservator, whether an intermediate or final account.”

Here, Plaintiff’s attorney received notice of Defendant’s accountings as the conservator, which included the time period Plaintiff claims Defendant should have paid the premiums. It is clearly stated in the Request for Judicial Notice Ex. G that Defendant could not access the policy. Plaintiff did not object to the final accountings in the conservatorship action.

Ex. J of the Request for Judicial Notice states Defendant’s acts were affirmed and approved by the court. The court order further states that she is discharged as the conservator. Plaintiff’s attorney attended the hearing and did not object.

Thus, Defendant meets its initial burden that she was released by her court-approved actions.

Plaintiff does not respond to this argument in its Opposition.

California Rules of Court, rule 3.1113(b), states, “The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (Quantum) (2011) 197 Cal.App.4th 927, 934, explains, “Rule 3.1113 rests on a policy-based allocation of resources, preventing the trial court from being cast as a tacit advocate for the moving party's theories by freeing it from any obligation to comb the record and the law for factual and legal support that a party has failed to identify or provide. On the record in this case, the trial court was justified in declining to look beyond that failure.”

The Court recognizes that California Rules of Court, rule 3.1113(b), applies to a memorandum in support of a motion. The court, however, finds that the reasoning in Quantum is applicable to Plaintiffs’ failure to address the Motion for Summary Judgment as to this argument. It is not the court’s responsibility to identify legal theories that may support Plaintiffs’ Opposition. Therefore, this is an independent reason for granting the motion.

Based on the foregoing, the Court GRANTS Defendant Christina Erickson-Taube’s Motion for Summary Judgment of Plaintiff’s First Amended Complaint.

Defendant to give notice.