Judge Michael J. Strickroth, Case 2022-01262645 2023-05-15 Tentative Ruling

Judge: Michael J. Strickroth, Case: 2022-01262645, Date: 2023-05-15 Tentative Ruling

Demurrer to Cross-Complaint

The demurrer of Cross-Defendant Shanna Lally to the Cross-Complaint filed by Karen Broderick is OVERRULED, in part, and SUSTAINED, in part, with 20-days leave to amend.

First Cause of Action for Conversion:

“Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages....” Lee v. Hanley (2015) 61 Cal.4th 1225, 1240, (quotations and citation omitted).

The Cross-Complaint alleges Cross-Complainant and William Patrick Lally (“Patrick”) opened a joint bank account which required two signatures to withdraw funds. (Cross-Complaint, ¶ 26.) Cross-Complainant and Patrick deposited $290,000 into their joint bank account which included approximately $100,000 in proceeds from the sale of a home in Big Bear which Cross-Complainant and Patrick purchased together. (Cross-Complaint, ¶¶ 19, 25.) The Cross-Complaint further alleges that at the time of Patrick’s death, the joint account had $245,389.53. (Cross-Complaint, ¶ 37.) Cross-Complainant also alleges that Cross-Defendant abused her authority as Trustee over the Willaim P. Lally Irrevocable Trust dated July 23, 2014, by wrongfully withdrawing $215,319.00 out of the joint account, just six days before Patrick’s death, and leaving $30,002.09 in the joint bank account. (Cross-Complaint, ¶ 38.)

The Cross-Complaint sufficiently alleges Cross-Defendant wrongfully withdrew $245,389.53 from a joint bank account which included proceeds from the sale of a home in Big Bear which belonged in part to Cross-Complainant and, as a result, caused damages to Cross-Complainant.

Accordingly, the demurrer to the first cause of action for conversion is OVERRULED.

Second Cause of Action for Accounting:

“A cause of action for an accounting requires a showing that a relationship exists between the plaintiff and defendant that requires an accounting, and that some balance is due the plaintiff that can only be ascertained by an accounting.” Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 179. “[T]he nature of a cause of action in accounting is unique in that it is a means of discovery. An accounting is a ‘species of disclosure, predicated upon the plaintiff’s legal inability to determine how much money, if any, is due.’ (1A Corpus Juris Secundum, supra, Accounting, § 6, pp. 7–8, fn. omitted.) Thus, 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. (1A Corpus Juris Secundum, supra, Accounting, § 26, p. 26.)” Id. at 180.

The Cross-Complaint alleges Cross-Defendant abused her authority as Trustee of the William P. Lally Irrevocable Trust dated July 23, 2014, by failing to account for any of the monies that she withdrew and/or transferred from the joint account. (Cross-Complaint, ¶ 64.) The Cross-Complaint further alleges the exact amount of money taken by the Cross-Defendant cannot be ascertained without an accounting and therefore Cross-Complainant “seeks an Order by the Court directing an equitable accounting of all the funds withdrawn and/or transferred by the Cross-Defendants which were held in a joint bank account . . .” (Cross-Complaint, ¶¶65-66.)

Cross-Complainant alleges she is a joint account holder of the account for which she seeks an accounting. Ttherefore, Cross-Complainant has the ability to access the information about the amounts deposited into and withdrawn from her joint account. Therefore, Cross-Complainant has not sufficiently alleged a claim for accounting.

In her opposition, Cross-Defendant contends she is “demanding a final accounting which would outline any charges and/or credits she is entitled to receive as a 50% owner of the subject property.” (Opp., p. 7, lns. 14-15.) However, the Cross-Complaint does not seek an accounting for charges/credits for the subject property.

Accordingly, the demurrer to the second cause of action for accounting is SUSTAINED with 20-days leave to amend.

Third Cause of Action for Intentional Infliction of Emotional Distress:

The elements for intentional infliction of emotional distress (“IIED”) are: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832. “A defendant's conduct is outrageous when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community…[and] intended to inflict injury or engaged in with the realization that injury will result.” Hughes v. Pair (2009) 46 Cal.4th 1035, 1050–51.

The Cross-Complaint sufficiently alleges outrageous conduct. Specifically, the Cross-Complaint alleges Cross-Defendant abused her authority as Trustee over the Willaim P. Lally Irrevocable Trust dated July 23, 2014, by wrongfully withdrawing $215,319.00 out of the joint bank account, just six days before Patrick’s death, and leaving $30,002.09 in the joint bank account. (Cross-Complaint, ¶ 38.) The Cross-Complaint also sufficiently alleges Cross-Defendant’s intention of causing or reckless disregard of the probability of causing emotional distress. (Cross-Complaint, ¶ 68.) The Cross-Complaint also alleges Cross-Complainant has suffered “significant and enduring emotional distress, including humiliation, mental anguish, and physical distress, injury to mind and body” as a direct and proximate cause of Cross-Defendant’s actions. (Cross-Complaint, ¶ 70.) Therefore, the Cross-Complaint sufficiently alleges a cause of action for IIED.

Accordingly, the demurrer to the third cause of action for IIED is OVERRULED.

Fourth Cause of Action for Financial Elder Abuse:

Welfare and Institutions Code section 15610.30 states in part, “(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.”

Welfare and Institutions Code section 15610.30 states “ ‘Elder’ means any person residing in this state, 65 years of age or older.”

Although the opposition states Cross-Complainant is over the age of 65, the Cross-Complaint does not allege Cross-Complainant is over the age of 65, or that Cross-Complainant is an elder or a dependent adult.

Accordingly, the demurrer to the fourth cause of action for Financial Elder Abuse is SUSTAINED with 20-days leave to amend.

Defendant to give notice.

Motion to Compel Production

The Motion of Defendant/Cross-Complainant Karen Broderick (“Defendant”) to compel Plaintiff/Cross-Defendant Shanna Lally (“Plaintiff”) to serve further, verified responses, without objections to the Demand for Identification, Inspection, and Production of Documents and Other Tangible Things, Set One is DENIED.

Code of Civil Procedure section 2031.310 provides: “(a) On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: [¶] (1) A statement of compliance with the demand is incomplete. [¶] (2) A representation of inability to comply is inadequate, incomplete, or evasive. [¶] (3) An objection in the response is without merit or too general. [¶] (b) A motion under subdivision (a) shall comply with each of the following: [¶] (1) the motion shall set forth specific facts showing good cause justifying the discovery sought by the demand. [¶] (2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040. . . [¶] (c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.”

Defendant moves to compel a further response to Demand for Identification, Inspection, and Production of Documents and Other Tangible Things, Set One (“Demand”), Nos. 3-21, 23-30, 34-35.

Demand Nos. 3-21, 23-26:

Demand No. 3 asks to: “FULLY IDENTIFY and produce ALL DOCUMENTS, COMMUNICATIONS, and/or ELECTRONIC RECORDS that are in YOUR possession, custody, or control that REFER or RELATE to YOUR response to Special Interrogatory No. 3 (Set One) concurrently served herewith.”

Demand Nos. 4-21 and 23-26 seek the same information for Special Interrogatory Nos. 7, 11, 15, 19, 23, 27, 31, 35, 39, 43, 47, 49-55, 59, 63, 67, 71.

In response to these Demands, Plaintiff provided an identical response which states: “OBJECTION. Harassing, oppressive, unduly burdensome and ‘asked and answered’ in Demand No. 2. Continuous discovery into the matter constitutes oppression, and Plaintiff further objects on that ground. (Professional Career Colleges v. Superior Court (1989) 207 Cal. App. 3d 490, 493-494.”

Demand No. 2 to which Defendant did not move to compel a further response, states: “FULLY IDENTIFY and produce ALL DOCUMENTS, COMMUNICATIONS, and/or ELECTRONIC RECORDS that are in YOUR possession, custody, or control that REFER or RELATE to YOUR verified responses to Special Interrogatories (Set One) concurrently served herewith.”

Plaintiff responded to Demand No. 2 by stating that: “After a diligent search and reasonable inquiry for responsive documents within Plaintiffs possession, custody or control, Plaintiff will comply with this request. All responsive documents that are in Plaintiffs custody or control will be produced. Please refer to: Grant deed recorded 05/02/2022 as document recording number 2022000165271, Grant deed Recorded on 07/24/2014 as document recording number 2014000294465 and Castro Law letters dated 4-27-22, 5-10-22, 9-21-22, 9-28-22. Please also refer to Demurrer which was served 8-26-22.”

Therefore, Demand No. 2 asks for the same information with respect to Defendant’s Special Interrogatories as requested in Demand Nos. 3-21 and 23-26. The only difference is that Demand No. 2 is a catchall and references the entire Special Interrogatories (Set One), whereas Demand Nos. 3-21 and 23-26 specifically reference individual Special Interrogatories.

Accordingly, Plaintiff’s objections on the grounds that the Demands are harassing, oppressive, unduly burdensome and ‘asked and answered’ are valid.

As such, the request to compel a further response to Demand Nos. 3-21 and 23-26 should be DENIED.

Demand Nos. 27-30, 34, 35:

Demand Nos. 27-30 and 35 request documents relating to Plaintiff’s expert witnesses. Specifically, these Demands request all documents, communications and/or electronic records that refer to “ALL written reports, and drafts, of each person that YOU expect to call as an expert witness at trial” (Demand No. 27); “ALL DOCUMENTS upon which any expert witness YOU intend to call at trial reviewed to form any opinions” (Demand No. 28); “the most recent resume or curriculum vitae of each expert whom YOU expect to call as an expert witness at trial” (Demand No. 29); “any list of cases maintained by any expert witness identified in which the witness has testified as an expert at trial or by deposition” (Demand No. 30); “any copies of any treaties, standards in the industry, legal authority, rule, case, statute, or code that will be relied upon to prosecute this case” (Demand No. 34); and “any expert identification filed in any court by the law offices representing YOU identifying any expert in this case as an expert in another case” (Demand No. 35).

Plaintiff objected on the grounds that these Demands seeks documents protected by attorney work product and requests premature disclosure of expert opinion in violation of Code of Civil Procedure sections 2034.210, 2034.220 and 2034.270.

These Demands prematurely seek expert witness opinion, accordingly, Plaintiff’s objection on this basis is justified. Further, Demand No. 34 requests attorney work product.

As such, the request to compel a further response to Demand Nos. 27-30, 34 and 35 is DENIED.

Defendant’s request for sanctions is DENIED. Plaintiff’s request for sanctions is GRANTED. Defendant is ORDERED to pay $650 in sanctions to Plaintiff within 30 days of the notice of this ruling.

Defendant to give notice.

Case Management Conference

Regardless whether the parties submit on the tentative to the court’s ruling on the demurrer above, counsel for the parties are required to appear, either in person or remotely, for the Case Management Conference.