Judge: Stephen P. Pfahler, Case: 24STCV19507, Date: 2025-04-15 Tentative Ruling

Case Number: 24STCV19507    Hearing Date: April 15, 2025    Dept: 68

Dept. 68

Date: 4-15-25

Case: 24STCV19507

Trial Date: Not Set

DEMURRER

MOVING PARTY: Defendant, Fae Lipeles, et al.

RESPONDING PARTY: Plaintiff, Jack Lipeles

RELIEF REQUESTED

Demurrer to the Complaint

·         1^st Cause of Action: Breach of Contract

·         2^nd Cause of Action: Misappropriation/Conversion of Trust Funds

·         3^rd Cause of Action: Breach of Fiduciary Duty

·         4^th Cause of Action: Fraud

·         5^th Cause of Action: Negligence

·         6^th Cause of Action: Intentional Infliction of Emotional Distress

·         7^th Cause of Action: Elder Abuse

SUMMARY OF ACTION

Plaintiff Jack Lipeles alleges an oral agreement with his brother, decedent Charles/Cuck Lipeles, whereby Chuck agreed to provide $2,000/month to Jack for the rest of Jack’s life, regardless of whether Chuck predeceased Jack. Jack passed on a unspecified date, thereby leaving Defendant Fae Lipeles, widow of Jack in charge of the estate of Jack and responsible for honoring the agreement. Plaintiff maintains Fae was aware of the agreement, but refuses to continue complying with said agreement.

On August 5, 2024, Plaintiff filed a complaint for Breach of Contract, Misappropriation/Conversion of Trust Funds, Breach of Fiduciary Duty, Fraud, Negligence, Intentional Infliction of Emotional Distress, and Elder Abuse

RULING: Sustained with Leave to Amend.

Defendant Fae Lipeles individually and as trustee of the Charles Lipeles Trust brings a demurrer to the entire complaint for Breach of Contract, Misappropriation/Conversion of Trust Funds, Breach of Fiduciary Duty, Fraud, Negligence, Intentional Infliction of Emotional Distress, and Elder Abuse on grounds of lack of jurisdiction, and uncertainty. Plaintiff in opposition maintains the action is both proper in the subject court, and that all claims are sufficiently pled. Defendant in reply challenges jurisdiction and lack of any valid basis for recovery. Defendant also contends the opposition “knowingly misstates facts.”

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.)

“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.]

Defendant first notes a potentially related case through an attached copy of a purported “Petition for Instructions” with the Probate Court (24STBC08345). Defendant makes no request for judicial notice, and the court declines to otherwise take notice of any content of said pleading, even if requested. Defendant may also in fact file a notice of related cases, and need not deflect dependence for such an action onto Plaintiff.

With the alleged probate court action pending, and with summary citation of statutory authority, Defendant essentially maintains the claims against the Estate should be presented to the Probate Court. Plaintiff counters the subject court can exercise jurisdiction over the case in that it involves a claim outside trust administration and/or third party beneficiaries.

The court reviews the basis for probate and concurrent independent calendar civil courtroom jurisdiction.

“As used in this division: (a) “Claim” means a demand for payment for any of the following, whether due, not due, accrued or not accrued, or contingent, and whether liquidated or unliquidated: (1) Liability of the decedent, whether arising in contract, tort, or otherwise. ...” (Prob. Code, § 9000.) “Except as otherwise provided by statute: (a) All claims shall be filed in the manner and within the time provided in this part. (b) A claim that is not filed as provided in this part is barred.” (Prob. Code, § 9002.) “(b) A claim shall be filed with the court and a copy shall be served on the personal representative, or on a person who is later appointed and qualified as personal representative. ... (d) If the creditor does not file the claim with the court and serve the claim on the personal representative as provided in this section, the claim shall be invalid.” (Prob. Code, § 9150.)

(a) Except as provided in Section 15800, a trustee or beneficiary of a trust may petition the court under this chapter concerning the internal affairs of the trust or to determine the existence of the trust.

(b) Proceedings concerning the internal affairs of a trust include, but are not limited to, proceedings for any of the following purposes:

(1) Determining questions of construction of a trust instrument.

(2) Determining the existence or nonexistence of any immunity, power, privilege, duty, or right.

(3) Determining the validity of a trust provision.

(4) Ascertaining beneficiaries and determining to whom property shall pass or be delivered upon final or partial termination of the trust, to the extent the determination is not made by the trust instrument.

(5) Settling the accounts and passing upon the acts of the trustee, including the exercise of discretionary powers.

(6) Instructing the trustee.

(7) Compelling the trustee to do any of the following:

(A) Provide a copy of the terms of the trust.

(B) Provide information about the trust under Section 16061 if the trustee has failed to provide the requested information within 60 days after the beneficiary's reasonable written request, and the beneficiary has not received the requested information from the trustee within the six months preceding the request.

(C) Account to the beneficiary, subject to the provisions of Section 16064, if the trustee has failed to submit a requested account within 60 days after written request of the beneficiary and no account has been made within six months preceding the request.

(8) Granting powers to the trustee.

(9) Fixing or allowing payment of the trustee's compensation or reviewing the reasonableness of the trustee's compensation.

(10) Appointing or removing a trustee.

(11) Accepting the resignation of a trustee.

(12) Compelling redress of a breach of the trust by any available remedy.

(13) Approving or directing the modification or termination of the trust.

(14) Approving or directing the combination or division of trusts.

(15) Amending or conforming the trust instrument in the manner required to qualify a decedent's estate for the charitable estate tax deduction under federal law, including the addition of mandatory governing instrument requirements for a charitable remainder trust as required by final regulations and rulings of the United States Internal Revenue Service.

(16) Authorizing or directing transfer of a trust or trust property to or from another jurisdiction.

(17) Directing transfer of a testamentary trust subject to continuing court jurisdiction from one county to another.

(18) Approving removal of a testamentary trust from continuing court jurisdiction.

(19) Reforming or excusing compliance with the governing instrument of an organization pursuant to Section 16105.

(20) Determining the liability of the trust for any debts of a deceased settlor. However, nothing in this paragraph shall provide standing to bring an action concerning the internal affairs of the trust to a person whose only claim to the assets of the decedent is as a creditor.

(21) Determining petitions filed pursuant to Section 15687 and reviewing the reasonableness of compensation for legal services authorized under that section. In determining the reasonableness of compensation under this paragraph, the court may consider, together with all other relevant circumstances, whether prior approval was obtained pursuant to Section 15687.

(22) If a member of the State Bar of California has transferred the economic interest of his or her practice to a trustee and if the member is a deceased member under Section 9764, a petition may be brought to appoint a practice administrator. The procedures, including, but not limited to, notice requirements, that apply to the appointment of a practice administrator for a deceased member shall apply to the petition brought under this section.

(23) If a member of the State Bar of California has transferred the economic interest of his or her practice to a trustee and if the member is a disabled member under Section 2468, a petition may be brought to appoint a practice administrator. The procedures, including, but not limited to, notice requirements, that apply to the appointment of a practice administrator for a disabled member shall apply to the petition brought under this section.

...

Prob. Code, § 17200

Nothing in the operative complaint appears to relate to internal trust operations, thereby establishing exclusive jurisdiction with the Probate Court. (Estate of Bowles (2008) 169 Cal.App.4th 684, 695-696; Harnedy v. Whitty (2003) 110 Cal.App.4th 1333, 1345.) Nevertheless, the court finds no pled submission of any claim against the estate. The complaint also lacks any operative dates. “If a person against whom an action may be brought on a liability of the person, whether arising in contract, tort, or otherwise, and whether accrued or not accrued, dies before the expiration of the applicable limitations period, and the cause of action survives, an action may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply.” (Code Civ. Proc., § 366.2, subd. (a).)

The court notes Plaintiff’s reliance on third party beneficiary jurisdiction notwithstanding the allegation of a directly contracting party with Defendant. (Goonewardene v. ADP, LLC (2019) 6 Cal.5th 817, 830.) The court also finds no specifically articulated support for the apparent sought after exception to the claim requirement against trustee defendant as opposed to a claim against the estate. (Wood v. Jamison (2008) 167 Cal.App.4th 156, 164.)

The demurrer is sustained as to the entire complaint on this basis. The complaint lacks both articulation of any claim against the estate or sufficiently articulated distinctions between claims against the Estate versus a claim against Fae as trustee alone, with sufficiently articulated legal support for such a claim. The court declines to make the arguments for Plaintiff. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784–785 [“When [a party] fails to raise a point or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived”].)

1^st Cause of Action: Breach of Contract

“To state a cause of action for breach of contract, [a plaintiff] must plead the contract, his performance of the contract or excuse for nonperformance, [defendant’s] breach and the resulting damage. (Citation.)” (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 458–59.) The complaint alleges the contractual agreement between the brothers. Defendant Fae is not an identified party to the contract. To the extent Plaintiff perhaps seeks to circle back to the third party beneficiary status, the operative complaint should actually articulate said basis.

2^nd Cause of Action: Misappropriation/Conversion of Trust Funds

“‘A cause of action for conversion requires allegations of plaintiff's ownership or right to possession of property; defendant's wrongful act toward or disposition of the property, interfering with plaintiff's possession; and damage to plaintiff. [Citation.] Money cannot be the subject of a cause of action for conversion unless there is a specific, identifiable sum involved.’” (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395.) The complaint lacks a specific basis for the claim to any funds.

3^rd Cause of Action: Breach of Fiduciary Duty

To plead a cause of action for breach of fiduciary duty, a plaintiff must allege facts showing the existence of a fiduciary duty owed to that plaintiff, a breach of that duty and resulting damage. (Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 524.) A fiduciary duty is founded upon a special relationship imposed by law or under circumstances in which “confidence is reposed by persons in the integrity of others” who voluntarily accept the confidence. (Tri-Growth Centre City, Ltd. v. Silldorf, Burdman, Duignan & Eisenberg (1989) 216 Cal.App.3d 1139, 1150; City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 386.) “A fiduciary or confidential relationship can arise when confidence is reposed by persons in the integrity of others, and if the latter voluntarily accepts or assumes to accept the confidence, he or she may not act so as to take advantage of the other's interest without that person's knowledge or consent.” (Pierce v. Lyman (1991) 1 Cal.App.4th 1093, 1101–02.)

Four factors potentially impose a fiduciary duty: “(1) one party entrusts its affairs, interests or property to another; (2) there is a grant of broad discretion to another, generally because of a disparity in expertise or knowledge; (3) the two parties have an “asymmetrical access to information,” meaning one party has little ability to monitor the other and must rely on the truth of the other party's representations; and (4) one party is vulnerable and dependent upon the other.” (City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 387–388.) One of the four factors is not determinative of a fiduciary relationship, but even the existence of all four factors in no way leads to a required finding of a fiduciary relationship. (Id. at 388.) Contractual relationships are among the situations where a Plaintiff may allege the elements, but the pre-existing contractual relationship in no way additionally supports the existence of fiduciary duty. (Id. at pp. 388-389.)

Again, the complaint lacks any foundation basis for any agreement or relationship between the parties.

4^th Cause of Action: 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.’” … [¶] ‘Promissory fraud’ is a subspecies of the action for fraud and deceit. A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) “Fraud in the inducement is a subset of the tort of fraud. It ‘occurs when “‘the promisor knows what he is signing but his consent is induced by fraud, mutual assent is present and a contract is formed, which, by reason of the fraud, is voidable.’”’ (Citations.)” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294-295.) “[I]n order to support a claim of fraud based upon the alleged failure to perform a promise, it must be shown that the promisor did not intend to perform at the time the promise was made. (Conrad v. Bank of America (1996) 45 Cal.App.4th 133, 157 accord Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30.) The complaint lacks any basis of any fraudulent representation by Defendant. A promise from decedent in no way impugns Defendant for a direct fraudulent promise or establishes a basis of reasonable reliance by Plaintiff.

5^th Cause of Action: Negligence

“The elements of a cause of action for negligence are well established … (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) Negligent hiring and supervision “[l]iability is based upon the facts that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) “Liability for negligent hiring and supervision is based upon the reasoning that if an enterprise hires individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employees.” (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339.)

It's not clear whether Plaintiff relies on the incorporated contract cause of action, or seeks to separately and alternatively allege some basis of duty. The complaint lacks allegations establishing said independent basis of duty.

6^th Cause of Action: Intentional Infliction of Emotional Distress

The elements of [intentional infliction of emotional distress] are ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.’” (Ess v. Eskaton Properties, Inc. (2002) 97 Cal.App.4th 120, 129.) “The tort calls for intentional, or at least reckless conduct—conduct intended to inflict injury or engaged in with the realization that injury will result.” (Id. at p. 130.) The complaint lacks facts establishing extreme and outrageous conduct by the widow based on alleged oral promise for support from a now deceased sibling.

7^th Cause of Action: Elder Abuse

It remains unclear as what basis Plaintiff seeks to allege elder abuse—dependent neglect or financial.

Welfare and Institutions code defines dependent abuse as “physical abuse, neglect, abandonment, isolation, abduction,” or other treatment with resulting physical harm or pain or mental suffering,” (Welf. & Inst. Code, § 15610.07.) Neglect is specifically defined as follows:

(b) Neglect includes, but is not limited to, all of the following:

(1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter.

(2) Failure to provide medical care for physical and mental health needs. A person shall not be deemed neglected or abused for the sole reason that the person voluntarily relies on treatment by spiritual means through prayer alone in lieu of medical treatment.

(3) Failure to protect from health and safety hazards.

(4) Failure to prevent malnutrition or dehydration.

(5) Substantial inability or failure of an elder or dependent adult to manage their own finances.

(6) Failure of an elder or dependent adult to satisfy any of the needs specified in paragraphs (1) to (5), inclusive, for themselves as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health.

(Welf. & Inst. Code, § 15610.57, subd. (b).)

Welfare and Institutions Code section 15610.30 defines financial abuse.

(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.

The court declines to speculate as to any intended basis of purported elder abuse.

In summary, the demurrer is sustained in its entirety with 30 days Leave to Amend. Plaintiff may NOT add any new causes of action, but may clarify the facts in support of any and all challenged causes of action (e.g. the entire complaint). (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

The court will concurrently conduct the Case Management Conference. Motion to Compel scheduled for August 25, 2025.

Defendant to give notice.