Judge Stephen P. Pfahler, Case 22CHCV00200 2022-10-25 Tentative Ruling

Plaintiff Chul Chang alleges status as “attorney in fact” for plaintiff Kyong Cha Chang via a durable financial power of attorney referenced as an exhibit to the operative complaint, but not in fact incorporated. The operative complaint further alleges that “Plaintiff is the widow of Thomas P. Kim,” and “Choon S. Kim is Decedent’s predeceased first spouse who died in 2015.” Defendant Leslie Hyun Park “is the daughter of Decedent,” and defendant Kevin Sachun Park is the spouse” of Leslie Park, “and the son-in-law of Decedent.”

The first amended complaint itself arises from a dispute over 23740 Forest View Court, Santa Clarita. According to Plaintiffs, “Decedent and Choon,” along with defendant, took title to the property as joint tenants: “Thomas P. Kim and Choon Sunk Kim, Husband and Wife and Kevin S. Park and Leslie Part, Husband and Wife, All as Joint Tenants.” [First Amended Comp., 19-20.]

Thomas Kim passed away on October 6, 2021. On October 4, 2021, Thomas “purportedly executed a Grant Deed transferring the Property to ‘Kevin Sachun Park and Leslie Hyun Park, as Trustees of the Kevin and Leslie Partk 2015 Trust dated December 9, 2015.” The Grant Deed was recorded on October 5, 2021.

On March 24, 2022, Plaintiffs filed a (verified) complaint for Cancellation of Written Instruments, Quiet Title, Fraud, Undue Influence (elder abuse), and Declaratory Relief. On April 4, 2022, Plaintiffs recorded a Notice of Pendency of Action (Lis Pendens). On July 14, 2022, Plaintiffs filed their first amended (verified) complaint for Cancellation of Written Instruments, Quiet Title, Fraud, Undue Influence (elder abuse), and Declaratory Relief. On September 9, 2022, Plaintiff Kyong Chang filed a second verification for the complaint.

Defendants Kevin Sachun Park and Leslie Hyun Park, individually, and as Trustees of the Kevin and Leslie Partk 2015 Trust dated December 9, 2015 demurrer to the first amended complaint on grounds that Plaintiffs failed to verify the complaint, Plaintiffs lack any claim of a community property interest, and the individual cause of action lack sufficient facts to pled any cause of action. Plaintiffs in opposition represents the first amended complaint is now verified, Plaintiff holds a community property interest in the property, and all causes of action are properly alleged. Defendants in reply reiterate the arguments of the demurrer.

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.)

Defendants generally submit the demurrer on grounds of uncertainty. “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.]

The first amended complaint contains a verification executed by Chul Chang in capacity as Attorney in Fact for Kyong Cha Chang. A second verification was separately filed on September 9, 2022, again by Chul Chang in capacity as Attorney in Fact for Kyong Cha Chang.

Defendants challenge the standing of Chul Chang to bring the action on behalf of Kyung Chang, and therefore contends the first amended complaint is not properly verified.

(a) The following persons may sue without joining as parties the persons for whose benefit the action is prosecuted:

(3) Except for a person upon whom a power of sale has been conferred pursuant to a deed of trust or mortgage, a person with whom, or in whose name, a contract is made for the benefit of another.

Plaintiffs rely on the language of the Power of Attorney itself to establish but contrary the argument in opposition and allegation in the first amended complaint, no such power of attorney form appears on the filed first amended complaint. [First Amend. Comp., ¶ 16.] The court declines to consider an allegedly operative document not properly before the court in the subject demurrer. The court therefore sustains the demurrer on the basis on both the lack of standing to bring the action on behalf of Kyong Chang and lack of verification.

Defendants next challenge the lack of an alleged community property interest in the property. Defendants rely on the allegations in the first amended complaint regarding title to the property originally taken as joint tenants: “Thomas P. Kim and Choon Sunk Kim, Husband and Wife and Kevin S. Park and Leslie Part, Husband and Wife, All as Joint Tenants.” [First Amended Comp., ¶¶ 19-20.][1] Kyong Chang married Thomas Kim in 2016. [First Amended Comp., ¶ 22.]

Defendants challenge the lack of any community property interest due to the acquisition of the property prior to the marriage, and therefore the presumption of separate property. (Fam. Code, §§ 760, 770.) The court finds no basis for a rebuttal of the presumption for a finding of separate property, such as a transmutation of title by Kim. The death of Kim in no way alters the presumption of separate title as well. (In re Brace (2020) 9 Cal.5th 903, 933.) The court declines to otherwise consider arguments extrinsic to the operative complaint. The demurrer is sustained on the basis of the lack of a community property interest in 3740 Forest View Court, Santa Clarita.

The Cancellation of Written Instruments and Quiet Title causes of action derive from the property interest claim, and are therefore not further addressed for purposes of ruling on this demurrer.

On Fraud, Defendants argue a lack of sufficient facts. Plaintiffs counter that the complaint sufficiently articulates fraud.

“‘The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) “A plaintiff's burden in asserting a fraud claim against a corporate employer is even greater. In such a case, the plaintiff must ‘allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.’” (Id. at p. 645.)

The first amended complaint relies on conclusions of false representations to the decedent, without articulation of any alleged statement. To the extent any false representations were made to the decedent, it’s not clear how Plaintiffs allege any basis of reliance. Further, Plaintiffs lack any pled basis of standing to bring any claim on behalf of decedent, if Plaintiffs in fact seek to allege such a claim.

(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.

(c) For purposes of this section, a person or entity takes, secretes, appropriates, obtains, or retains real or personal property when an elder or dependent adult is deprived of any property right, including by means of an agreement, donative transfer, or testamentary bequest, regardless of whether the property is held directly or by a representative of an elder or dependent adult.

(a) “Undue influence” means excessive persuasion that causes another person to act or refrain from acting by overcoming that person's free will and results in inequity. In determining whether a result was produced by undue influence, all of the following shall be considered:

(1) The vulnerability of the victim. Evidence of vulnerability may include, but is not limited to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim's vulnerability.

(2) The influencer's apparent authority. Evidence of apparent authority may include, but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, or other qualification.

(3) The actions or tactics used by the influencer. Evidence of actions or tactics used may include, but is not limited to, all of the following:

(A) Controlling necessaries of life, medication, the victim's interactions with others, access to information, or sleep.

(C) Initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes.

(4) The equity of the result. Evidence of the equity of the result may include, but is not limited to, the economic consequences to the victim, any divergence from the victim's prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship.

(b) Evidence of an inequitable result, without more, is not sufficient to prove undue influence.

Like the fraud cause of action, the court finds no basis of standing. The court also finds the mere existence of the execution of the grant deed two days before death lacks sufficient support of harm to Kim, thereby supporting the claim.

The Declaratory Relief cause of action derives from the property interest claim, and are therefore not further addressed for purposes of ruling on this demurrer.

The demurrer is sustained with 30 days leave to amend for all reasons addressed. Plaintiff may not add a new cause of action. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) Plaintiff may provide additional factual allegations as well as any and all exhibits previously referenced.

[1]The first amended complaint references a copy of the Grant Deed as Exhibit 2, but no such exhibit is attached to the court filed first amended complaint.