Judge Olga Alvarez, Case 37-2020-00012432-PR-PW-CTL 2023-11-14 Tentative Ruling

Judge: Olga Alvarez, Case: 37-2020-00012432-PR-PW-CTL, Date: 2023-11-14 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - October 31, 2023

11/01/2023 10:30:00 AM 503 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Olga Alvarez

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Probate Probate of Will - Letters Testamentary Motion Hearing (Probate) 37-2020-00012432-PR-PW-CTL ESTATE OF MICHELLE CHENAULT [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 08/16/2023

Pursuant to San Diego County Superior Court Local Rules, rule 4.23.7, the Court's tentative ruling is as follows: The Motion for Judgment on the Pleadings filed by David Chenault (ROA 489) is DENIED.

Request for Judicial Notice (ROA 490) is GRANTED.

I. BACKGROUND Michelle Chenault ('Decedent') died on April 13, 2018. On March 6, 2020, Decedent's brother, David Chenault ('Petitioner'), filed a petition to probate Decedent's Will dated April 9, 2018 ('Purported Will'), and to be appointed as executor of Decedent's estate. (ROA 1.) On July 22, 2020, Decedent's mother, Carole Brent ('Carole'), and Decedent's brother, Frank Chenault ('Frank'), filed a contest to the Purported Will and an objection to the appointment of Petitioner as executor. (ROA 23.) Carole and Frank (collectively 'Respondents') allege that the Purported Will is invalid due to Decedent's lack of capacity and undue influence from Petitioner and his daughters. Carole also filed a petition seeking to be appointed as administrator of Decedent's estate, alleging that Decedent died intestate. (ROA 26.) On March 1, 2022, Petitioner filed a Petition For: (1) Order to Return Personal Property Back to the Estate and For Double Damages; (2) Conversion; (3) Breach of Fiduciary Duty; and (4) Accounting ('850 Petition'). (ROA 230.) The 850 Petition involves Decedent's interest in three assets: (1) a 24% limited partner interest in Goldman Enterprises Limited Partnership ('GELP'); (2) a 33.3% interest in C.D.F.M., LLC ('CDFM'); and (3) a 50% interest in the real property located at 3095 Paseo Estribo, Carlsbad, CA 92009 ('Carlsbad Property').

Carole, as trustee of her trust, and Frank are limited partners of GELP. CDFM is GELP's general partner. Carole, as trustee of her trust, and Frank are the managing members of CDFM.

Regarding GELP and CDFM, the 850 Petition alleges as follows: after Decedent's death, Respondents obtained a number of cash-out hard-money loans secured by real property owned by GELP; Respondents distributed GELP's liquid assets, including the net proceeds from the hard-money loans, to themselves without making the required pro-rata distributions to Decedent's estate based upon her ownership interest in GELP; Respondents then allowed the then existing hard-money loans to go into Calendar No.: Event ID: TENTATIVE RULINGS

3009848 CASE NUMBER: CASE TITLE: ESTATE OF MICHELLE CHENAULT [IMAGED] 37-2020-00012432-PR-PW-CTL default and sold GELP's fully encumbered real property to cover the outstanding debt and avoid personal liability; and Respondents may have also improperly distributed to themselves oil royalties and proceeds from the sale of real property that were received by GELP and/or CDFM. As for the Carlsbad Property, the 850 Petition alleges that Respondents improperly withheld Decedent's share of income from that property.

On June 3, 2022, Petitioner filed Petition For: (1) Conversion – Derivative Claim (2) Breach Of Fiduciary Duty – Derivative Claim (3) Conversion – Derivative Claim (4) Breach Of Fiduciary Duty – Derivative Claim ('Derivative Petition'). (ROA 276.) The Derivative Petition is based on the same allegations regarding GELP and CDFM in the 850 Petition and was brought 'in order to pursue derivative claims on behalf of GELP and CDFM to the extent any claims relating to those transactions may be held to be derivative.' (ROA 276, ¶ 18.) On March 31, 2023, the Court granted without leave to amend Respondents' demurrer or motion for judgment on the pleadings in the alternative (ROA 370) as to the Derivative Petition. (ROA 415, Minute Order filed Mar. 21, 2023.) The Court denied Respondents' demurrer or motion for judgment on the pleadings in the alternative (ROA 373) as to the 850 Petition. (Id.) On August 16, 2023, Respondents filed the instant motion for judgment on the pleadings ('MJOP') against the 850 Petition filed on March 1, 2023.1 (ROA 489.) Respondents move pursuant to CCP § 438 for entry of judgment against Petitioner and dismissal of the action with prejudice as barred by the doctrine of res judicata.

On October 18, 2023, Petitioner filed an opposition. (ROA 528.) On October 24, 2023, Respondents filed a reply. (ROA 531.) II. DISCUSSION A demurrer tests the legal sufficiency of a petition, and raises only issues of law, not of fact, regarding the form or content of the petition. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994; Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer does not challenge the truthfulness of allegations in a petition, and instead assumes all facts pleaded are true. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.) The petition must be construed liberally, and the court draws all inferences in favor of the petitioner. (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.) A demurrer will not lie unless the defect under challenge appears on the face of the petition or through matters subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; CCP § 430.30(a).) A motion for judgment on the pleadings has the same function as a general demurrer and is generally governed by the same rules as a demurrer. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999; Southern California Edison Co. v. City of Victorville (2013) 217 Cal.App.4th 218, 227.) 'Res judicata bars a cause of action that was or could have been litigated in a prior proceeding if: '(1) the present action is on the same cause of action as the prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the parties in the present action or parties in privity with them were parties to the prior proceeding. [Citation.]' [Citation.]' (Federal Home Loan Bank of San Francisco v. Countrywide Financial Corp. (2013) 214 Cal.App.4th 1520, 1527.) Here, Respondents argue the 850 Petition and the Derivative Petition both involve the same cause of action based on the same primary right. Respondents contend that this Court's previous order dismissing the Derivative Petition with prejudice is a final judgment on the merits, and the 850 Petition is barred as res judicata and under claim preclusion. In other words, Respondents' claim is that since the two petitions overlap in terms of the causes of action and relief sought, this Court's sustaining of the demurrer/MJOP without leave to amend of the Derivative Petition is dispositive as to the 850 Petition as well.

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3009848 CASE NUMBER: CASE TITLE: ESTATE OF MICHELLE CHENAULT [IMAGED] 37-2020-00012432-PR-PW-CTL The Court is not persuaded. The same day the Court ruled on the demurrer/MJOP directed against the Derivative Petition, the Court also DENIED the demurrer/MJOP filed by Respondents against the 850 Petition. (ROA 424, Minute Order filed Mar. 22, 2023.) Admittedly, Respondents appealed the ruling on the 850 Petition, and the Court of Appeal denied the petition for writ of mandate. Thus, the ruling of March 22, 2023, as to the 850 Petition is a final judgment as to that petition, yet Respondents attempt to take a second bite at the apple with the instant motion. The present motion does not raise any other grounds for judgment on the pleadings, other than the claims based on res judicata and claim preclusion. The Derivative Petition and 850 Probate Petition allege different causes of action, under different statutory authority, even if the underlying facts overlap. The ruling on the Derivative Petition thus, cannot have preclusive effect simply because the two petitions involve the same parties and arise from substantively the same operative facts.

More important, the demurrer/MJOP against the Derivative Petition was not a 'prior proceeding,' and no final judgment on the merits of any petition have been entered in this case. Indeed, the trial on the 850 Petition has been continued and a trial date is not set. (ROA 486, Minute Order filed Jul. 11, 2023, on Carol's motion to continue trial and extend discovery [ROA 432].) Moreover, the ruling on a demurrer or MJOP is not on the merits, but on the sufficiency of the pleadings as filed. Thus, Respondents' arguments are unavailing, and the Court finds the motion is without merit.

Therefore, the motion is DENIED as successive and meritless.

Counsel for Petitioner is directed to serve written notice of ruling on all parties in accordance with the provisions of CCP § 1019.5(a).

IT IS SO ORDERED.

______________________________________________________________________________ [1] The Notice of Motion refers to an 850 Petition filed on March 22, 2023, there is no such petition filed on that date. (ROA 489, Notice of Mot., at p. 2.) The only 850 Petition at issue (ROA 230) was filed on March 1, 2022. Thus, the Court assumes the reference to a petition filed on March 22, 2023, is in error and the motion is directed against the petition at ROA 230, herein referred to as the 850 Petition.

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