Judge: Stephen P. Pfahler, Case: 20STCV05877, Date: 2022-07-25 Tentative Ruling


Case Number: 20STCV05877    Hearing Date: July 25, 2022    Dept: F49

Dept. F-49

Date: 7-21-22 c/f 7-5-22/Submitted

Case # 20STCV05877

Trial Date: 1-30-23 c/f 7-25-22

 

DEMURRER/MOTION TO STRIKE

 

MOVING PARTY: Cross-Defendant, Irene De La Cerda

RESPONDING PARTY: Defendant/Cross-Complainant Gerald De La Cerda

 

RELIEF REQUESTED

Demurrer to the First Amended Cross-Complaint

·         1st Cause of Action: Indemnification

·         2nd Cause of Action: Apportionment of Fault

·         3rd Cause of Action: Declaratory Relief

 

Motion to Strike

 

SUMMARY OF ACTION

Plaintiff Andrew La Cerda alleges that along with himself, defendants Sara De La Cerda, Gerald De La Cerda were beneficiaries of the Dolores De La Cerda Revocable Family Trust. Plaintiff is 62 years old, suffers from Parkinsons disease, and is considered a “Dependent Adult.” The trust owns/owned certain real property located at 1271 Hunnewell Ave., Sylmar. Plaintiff contends that the trust provided Plaintiff with a life estate to occupy the property, rather than placed in an off-site care facility. If Plaintiff was unable to pay expenses for the home, the beneficiaries would be responsible. Any beneficiary refusing to contribute will receive no residual distribution benefit.

 

Plaintiff alleges that defendants Sara and Gerald conspired to remove funds from the trust through forged documents representing Defendants as co-trustees. Plaintiff also specifically alleges that Sara took personal funds ($44,0000 + $6,000) from Plaintiff.

 

The complaint also alleges two incidents on February 16, 2018. The first is where both Sara and Gerald entered into the premises with the assistance of a locksmith. Gerald then grabbed Plaintiff from behind in a “tight bear hug” until Plaintiff “slid down to the floor in pain.”

 

Defendant James Morris, an attorney, drafted amendments to the trust regarding the life estate and residual distribution.

 

On February 14, 2021, Plaintiff filed a complaint for Dependent Adult Abuse (first and second causes of action), Battery, Trespass, and Conversion of Real Property. On October 6, 2020, Plaintiff filed a first amended complaint for Dependent Adult Abuse (first and second causes of action), Battery, Trespass, Conversion of Real Property, Negligence, and False Imprisonment.

 

On November 9, 2020, James Morris filed a general denial. On February 17, 2021, Defendant Gerald De La Cerda answered and filed a cross-complaint for indemnity, apportionment, and declaratory relief against Irene De La Cerda aka Irene Sullivan. On February 26, 2021, Defendant Sara De La Cerda answered and filed a cross-complaint for indemnity, apportionment of fault, and declaratory relief against Irene De La Cerda aka Irene Sullivan.

 

On June 22, 2021, the action was transferred from Department 32 to Department 49.

 

On March 8, 2022, the court granted the motion for summary judgment by Irene De La Cerda on the Cross-Complaint of Sara De La Cerda. On April 25, 2022, the court granted the motion of Irene De La Cerda to the cross-complaint of Gerald De La Cerda. Gerald De La Cerda filed a first amended cross-complaint on May 25, 2022.

 

RULING

Demurrer: Overruled.

Request for Judicial Notice: Granted in Part/Denied in Part.

The court takes judicial notice of filed pleadings in the probate department proceeding, but declines to take judicial notice of the content of the pleading for purposes of the truth of the matter asserted. (Barri v. Workers' Comp. Appeals Bd. (2018) 28 Cal.App.5th 428, 437; Day v. Sharp (1975) 50 Cal.App.3d 904, 914.) The court can take judicial notice of orders and judgments for purposes of determining findings of fact previously made and prior adjudication in case of an argument for res judicata and/or collateral estoppel. (Kilroy v. State of California (2004) 119 Cal.App.4th 140, 147; Day v. Sharp (1975) 50 Cal.App.3d 904, 914.) The court takes judicial notice of the filed pleadings, but not the content. The court also takes judicial notice of its prior orders.

 

The court declines to take judicial notice of any other documents submitted in association with prior proceedings.

 

The court also declines to consider any and all extrinsic evidence NOT properly subject to judicial notice, and therefore DECLINES TO RULE ON THE EVIDENTIARY OBJECTIONS. Again, NO EXTRINSIC DECLARATIONS from Mr. Park or Ms. Pechner WERE CONSIDERED IN ANY WAY IN THE SUBJECT COURT RULING.

 

Finally, the court declines to consider the sufficiency of the meet and confer efforts of the parties. The sufficiency of any meet and confer is not dispositive in ruling on the demurrer and motion to strike, and the court declines to continue the hearing a second time. (Code Civ. Proc., § 430.41) Again, the court therefore declines to consider ANY AND ALL extra declarations regarding the meet and confer efforts.

 

Cross-Defendant Irene de la Cerda (Irene) challenges the first amended cross-complaint of Gerald de la Cerda via demurrer on grounds of res judicata or collateral estoppel. Irene contends the prior probate court judgment bars any claims within the first amended cross-complaint based on any finding of fault as to Irene, thereby excluding claims for indemnity, apportionment or declaratory relief. Irene also challenges any necessity of conducting further discovery in order to support the claims.

 

Gerald de la Cerda in opposition first challenges the lack of a sufficient meet and confer effort. Gerald next emphasizes the operative first amended cross-complaint arises at least in part due to the ongoing expense claims.

 

Irene in a 12 separate point reply reiterates the claim preclusion arguments (res judicata and collateral estoppel), and provides a separate, second challenge to the insufficient meet and confer accusations. Irene also challenges the ability of Gerald to bring an indemnity complaint in Irene’s role as trustee before the court. The court acknowledges the request of Ms. Pechner at the hearing for additional briefing on the demurrer, due to the court failing to incorporate acknowledgment of the reply into the tentative ruling. Having now incorporated the reply arguments, the court finds no change to its findings regarding the improper use of extrinsic arguments in regards to potential challenges to substantive jurisdiction on claims to the administration of the trust, as addressed below.

 

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated.  (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

 

Irene emphasizes paragraphs 11 and 12 of the Probate Court Judgment and Order After Trial, which found that the “removal of SARA DE LA CERDA and GERALD DE LA CERDA is necessary. … [¶] The court finds that the primary focus of the trust is ensuring ANDREW DE LA CERDA’S well-being and the evidence is clear that IRENE DE LA CERDA is the one who acted most consistently in his interest…” [Req. Jud. Not., Ex. 5.] According to Irene, all actions conducted by Irene with regard to Andrew were found valid by the Probate Court, which undermines the indemnity and apportionment claims, and nothing in the declaratory relief claim in any way seeks an interpretation of the trust instrument.

 

The first amended cross-complaint relies on incorporating certain key paragraphs of the operative complaint, including all incorporated causes of action, plus paragraphs 5, 6, 73, 77, and 90. The specifically cited sections allege a claim seeking contribution and payment from the co-beneficiaries of the trust to meet necessary expenses for Andrew as determined by the Trustee (e.g. Irene). Said expenses apparently include the $44,000 removed from the premises. The crux of the first amended cross-complaint seeks information regarding the ongoing claim for continuing contributions from the principal trust, as administered by Irene. Gerald also contends an entitlement to discovering information into any potential role Irene played (continues to play) in determining said past and future damages. Gerald essentially seeks a means of challenging any claims for fees reducing his portion of the trust proceeds by questioning the conduct of Irene both prior to the Probate Court judgment and after thereby leading to any judgment for damages in the subject action.

 

“Claim preclusion applies when ‘(1) the decision in the prior proceeding is final and on the merits; (2) the present proceeding is on the same cause of action as the prior proceeding; and (3) the parties in the present proceeding or parties in privity with them were parties to the prior proceeding.’” (Planning & Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, 226.) The doctrine of res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy.  It seeks to curtail multiple litigation causing vexation and expense to the parties and wasted effort and expense in judicial administration.  Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Under the doctrine of res judicata, if a plaintiff prevails in an action, the cause is merged into the judgment and may not be asserted in a subsequent lawsuit. All claims based on the same cause of action must be decided in a single suit; if not brought initially, they may not be raised at a later date. Res judicata precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief. (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 897.) “Res Judicata is not a bar to claims arising after the filing of the initial complaint.” A party may assert new claims in an amended pleading, “but if no such pleading is filed, a plaintiff is not foreclosed. [Citation.] The general rule that a judgment is conclusive as to matters that could have been litigated ‘does not apply to new rights acquired pending the action which might have been, but which were not, required to be litigated [Citation]’.” (Allied Fire Protection v. Diede Const., Inc. (2005) 127 Cal.App.4th 150, 155; Planning and Conservation League v. Castaic Lake Water Agency, supra, 180 Cal.App.4th at 227.)

 

“In general, collateral estoppel precludes a party from relitigating issues litigated and decided in a prior proceeding.  (Citations.) ‘Traditionally, we have applied the doctrine only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. (Citation.)’”

 

(Gikas v. Zolin (1993) 6 Cal.4th 841, 848–849.)

 

Irene specifically relies on the judgment of the probate court. Again, the court may rely on the findings and conclusions of the probate court rather than depending on the veracity of any and all testimony considered and cited by the probate court. (Kilroy v. State of California, supra, 119 Cal.App.4th at p. 147; Day v. Sharp, supra, 50 Cal.App.3d at p. 914.) The inquiry is limited to the allegations of the challenged pleading and reasonable inferences. (Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1605-1606.)

 

The court again finds the probate court judgment bars claims against Gerald for past conduct leading to the imposition of the $44,000 judgment, disqualification from any trustee related activities and appointment of Irene as trustee. Nevertheless, while the court previously examines the Probate Judgment with regards to the findings of the court as it applied to the conduct of the parties’ past conduct, the court finds no proactive bar against Gerald for stating a post-judgment claim for indemnity, apportionment and declaratory relief. Gerald can state a claim as it relates to the post probate court judgment relative to the operative complaint of Andrew. (Allied Fire Protection v. Diede Const., Inc., supra, 127 Cal.App.4th at p. 155; Planning and Conservation League v. Castaic Lake Water Agency, supra, 180 Cal.App.4th at 227.)

 

In other words, while the $44,000 remains the responsibility of Gerald and Sara, the claim for relief seeking continuing relief from the trust—additional funds after reimbursement of the $44,000—at the expense of the remaining sibling beneficiaries constitutes a valid claim for indemnity and declaratory for purposes of ruling on the validity of the challenged pleading. The subject claim constitutes a new claim, separate and apart from the probate court judgment. The court declines to consider any substantive, factual arguments regarding the validity of any such claim or the potential implications of a trustee and beneficiary administering and determining trustee needs. (Prob. Code, § 1700, subd. (a); Harnedy v. Whitty (2003) 110 Cal.App.4th 1333, 1345.) The court notes the raising of the argument, but because the thrust of the demurrer challenges the validity of the claim on the basis of res judicata and collateral estoppel rather than the lack of subject matter jurisdiction by the court, the court sua sponte declines to address unmade arguments, and therefore defers any consideration on the propriety of the claims presented to the court at this point. Nothing in this ruling precludes a potential return to the Probate Court for said challenges.

 

The demurrer to the first amended cross-complaint is therefore overruled subject to potential transfer of the claims based on the challenge to the administration of the trust and actions of the trustee before the probate court.

 

Motion to Strike: Denied.

Irene challenges the first amended cross complaint on grounds the latest filed item constitutes a sham pleading. Specifically, Irene contends the “ongoing” damages claim constitutes an invalid basis for discovery without a valid claim. Gerald in opposition challenges the basis of the motion as unsupported. Irene in reply emphasizes the propriety of the meet and confer efforts, reiterates the ban of the cross-complaint on grounds of claim preclusion,

 

“Where a party files an amended complaint and seeks to avoid the defects of a prior complaint either by omitting the facts that rendered the complaint defective or by pleading facts inconsistent with the allegations of prior pleadings” the pleading is considered a sham pleading. (Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 383-384; Berman v. Bromberg (1997) 56 Cal.App.4th 936, 946 [“A pleader may not attempt to breathe life into a complaint by omitting relevant facts which made his previous complaint defective”].) A pleader is entitled to explain any inconsistencies. (Ibid.)

 

As addressed in the demurrer, for purposes of examining the pleading under the proper standard, the first amended cross-complaint sufficiently alleges the claim for ongoing damages not barred by the probate court judgment. The court otherwise finds the first amended cross-complaint in no way constitutes a sham pleading as defined.

 

The motion to strike is denied.

 

The demurrer is therefore overruled and the motion to strike denied. Irene is ordered to answer the first amended cross-complaint within 10 days. Again, the subject cross-complaint only proceeds on the claim of potential future damages, not the prior adjudicated claims, and with the reservation that the subject claims arising from the administration of the trust may properly belong before the probate court and remain subject to transfer.

 

Three motions to compel further responses currently reserved for October 17-19, 2022. The court requests all parties to properly identify their documents when filing and submitting documents to the court electronic filing system.

 

Clerk to give notice to all parties.