Judge: Olga Alvarez, Case: 37-2019-00008688-PR-TR-CTL, Date: 2023-09-26 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - September 05, 2023

09/06/2023  10:30:00 AM  503 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Olga Alvarez

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Probate  Trust Proceedings Demurrer / Motion to Strike (Probate) 37-2019-00008688-PR-TR-CTL IN THE MATTER OF THE BARBARA JO SMITH TRUST DATED MAY 31, 1997 CAUSAL DOCUMENT/DATE FILED: Demurrer, 05/17/2023

Pursuant to the Superior Court of San Diego County, Local Rules, rule 4.23.7, the court's tentative ruling is as follows: The Demurrer filed by Tommie Pillers, Successor Trustee, is SUSTAINED with leave to amend.

Trustee's Request for Judicial Notice (ROA 236) is GRANTED.

Petitioners' Request for Judicial Notice (ROA 247) is GRANTED.

I. Background This case involves The Barbara Jo Smith Trust dated May 31, 1997 (Trust). Barbara Jo is Irma Powell's sister. Irma and Charles Powell were a married couple. The couple did not have any children. It is alleged that Irma transferred assets into the Trust after Charles' death.

Pursuant to Probate Code § 6402.5 and as surviving siblings of Charles Powell, Petitioners claim entitlement to 50% of the Trust assets as the community property of Charles and Irma Powell.

Respondent Tommie Pillers is the Trustee of The Barbara Jo Smith Trust dated May 31, 1997, and executor of the estate of Barbara Jo Smith.

On January 13, 2023, Carmen Powell, Jerry Powell, John Powell, and Jerry Powell as the personal representative of Marlon Powell (collectively Petitioners) filed a 'Second Amended Petition for Order Determining Title to Personal Property and for Damages.' (ROA 224.) On July 14, 2023, Petitioners filed an 'Amendment to Second Amended Petition to Determine Title and Require Transfer of Personal Property, and for Damages.' (ROA 233.) This filing appears to be a duplicate of the Second Amended Petition at ROA 224, with a copy of The Barbara Jo Trust, which is not attached to the petition at ROA 224. (ROA 233, Exh. A.) On May 17, 2023, Successor Trustee/Respondent Tommie Pillers (Trustee) filed a demurrer to the Second Amended Petition and Amendment to Second Amended Petition. (ROA 235.) Trustee demurs on the ground the petition is uncertain and does not allege facts sufficient to constitute a cause of action pursuant to CCP § 430.10. Trustee requests the demurrer be sustained without leave to amend.

On August 23, 2023, Petitioners filed their opposition. (ROA 246.) Calendar No.: Event ID:  TENTATIVE RULINGS

2978028 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE BARBARA JO SMITH TRUST DATED MAY 31,  37-2019-00008688-PR-TR-CTL Trustee filed an untimely reply on August 30, 2023. (ROA 249.) Notwithstanding, based on counsel's declaration and reasons for the late filing, the Court will consider the reply.

II. Discussion A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer is treated 'as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] [Courts] also consider matters which may be judicially noticed.' (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) No other extrinsic evidence can be considered (i.e., no 'speaking demurrers'). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) The complaint must be liberally construed and given a reasonable interpretation, with a view to substantial justice between the parties. (Amarel v. Connell (1988) 202 Cal.App.3d 137, 140–141; see also, Poseidon Development, Inc. v. Woodland Lane Estates, LLC, supra, 152 Cal.App.4th 1106, 1111-12 [in ruling on demurrers, courts treat as being true 'not only the complaint's material factual allegations, but also facts that may be implied or inferred from those expressly alleged'].) A complaint should provide defendants sufficient notice of the cause of action stated against them so that they are able to prepare their defense. (People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1486.) The plaintiff bears the burden to show there is a reasonable possibility the defective pleading may be cured. (Blank v. Kirwan, supra, 39 Cal.3d 311, 318.) The Second Amended Petition alleges that Charles Elvin Powell died intestate on September 1, 2014.

(ROA 233, Second Amended Petition [SAP], at ¶ 7.) Charles was survived by his spouse, Irma Powell, who died intestate on December 3, 2016. (Id.) There are no surviving spouse, issue, or parents of either of these decedents. (Id.) Petitioners are Charles' siblings. (Id., at ¶ 8.) The SAP alleges that 'by the time CHARLIE passed away, IRMA was very ill and suffered from a number of chronic and acute conditions, including dementia and debilitating arthritis.' (Id., at ¶ 9.) The SAP alleges that Irma 'not only had severe arthritis and other physical disabilities, she also had dementia and other major cognitive disabilities, and she lacked both legal and testamentary capacity.' (Id.) At that point, Irma moved in with her sister Barbara Jo after Charlie passed away. (Id.) The SAP alleges that on December 18, 2015, Irma had emergency surgery due to an acute and severe subdural hematoma. (Id., at 10.) On January 1, 2016, Irma was transferred from Grossmont Hospital to Kindred Hospital in San Diego, for ongoing treatment. (Id.) The SAP alleges Charles and Irma had accumulated significant assets during their lifetime including real property, cash, stocks, and bonds, which after Charlies died and before Irma died, Barbara Jo 'fraudulently converted of CHARLIE and IRMA's community property assets to her own use.' (Id., at ¶ 11.) The SAP goes on to list the assets Petitioners believe were fraudulently procured by Barbara Jo.

(Id., at ¶ 12.) The SAP states that '[b]ecause BARBARA JO SMITH converted the property to her own use by forgery, fraud and/or undue influence, Petitioners are entitled to CHARLES' portion of the community property, which is a 50% interest in the property.' (Id., at ¶14.) Pursuant to Probate Code § 850(a)(2)(C), Petitioners request that Trustee be ordered to convey title to and possession of their 50% interest in the personal property to Petitioners. (Id.) The SAP further alleges that '[a]s a result of BARBARA JO SMITH's acts of conversion, and the wrongful withholding of the funds and accounts, Petitioners have been damaged in the sum or sums to be proven at trial ....' (Id., at ¶ 16.) Calendar No.: Event ID:  TENTATIVE RULINGS

2978028 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE BARBARA JO SMITH TRUST DATED MAY 31,  37-2019-00008688-PR-TR-CTL Here, Petitioners' claims based on fraud, forgery, and undue influence are uncertain. 'In California, fraud must be pled specifically; general and conclusory allegations do not suffice ... 'This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.' [Citation.]' (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) The SAP alleges that Irma suffered from dementia, lacked mental capacity, had surgery for a subdural hematoma, and was being treated at Kindred Hospital before she passed away. The SAP then alleges Barbara Jo fraudulently procured Irma's assets. As such, the SAP contains no factual allegations regarding the fraud, such as when, where, by what means the fraud was committed, and how Barbara Jo exerted undue influence to achieve the transfer of assets. That Irma was susceptible to undue influence based on her alleged mental and/or medical conditions does not automatically lead to the conclusion that Irma was subjected to fraud and undue influence. Indeed, the SAP contains no allegations pursuant to Welfare and Institutions Code § 15610.70. (Prob. Code, § 86.) Likewise, the SAP is devoid of any facts surrounding the alleged forgery and conversion. It is unknown what documents were forged, when, by whom, and by what means, and what facts underlie the conversion claim.

General, conclusory allegations of fact and law do not survive demurrer.

In addition, the SAP alleges in a conclusory manner the assets at issue are community property assets, without any factual allegations to establish the same and Petitioners' entitlement under Probate Code § 6402.5. (CCP § 6402.5(c) ['[f]or purposes of disposing of personal property under subdivision (b), the claimant heir bears the burden of proof to show the exact personal property to be disposed of to the heir.'].) As Trustee notes, Irma was not limited by Probate Code § 6402.5 from transferring assets after her husband Charles passed away. Thus, the mere transfer of Irma's assets into the Barbara Jo's trust is not enough to support the allegation the transfer was fraudulent or the product of undue influence, or that the transfer involved community property assets. The allegations fail to identify the assets Petitioners are entitled to take under section 6402.5 and on what basis. Mere conclusory allegations are insufficient.

Liberally construing the pleadings, the Court finds the SAP fails to state sufficient facts to support the claim under Probate Code § 6402.5 based on fraud, forgery, undue influence, and conversion.

Petitioners seek leave to amend the SAP. Therefore, the demurrer is SUSTAINED with leave to amend.

Counsel for Trustee is directed to serve notice of this ruling in accordance with the provisions of CCP § 1019.5(a).

IT IS SO ORDERED.

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