Judge: Theodore R. Howard, Case: 22-1246349, Date: 2023-05-18 Tentative Ruling

Before the Court are demurrers and motions to strike filed by Defendants, M. Thomas Ashbrook (“Ashbrook”) and Sandie Steele (“Steele”) as to the Complaint of Plaintiff, Arnold Starr, through his conservator Jonathan Starr, (“Plaintiff”).

Ashbrook’s demurrer is SUSTAINED in part with 20 days leave to amend and OVERRULED in part.  Ashbrook’s motion to strike is deemed MOOT without prejudice to renewal.

Steele’s demurrer is OVERRULED.  Steele’s motion to strike is DENIED.  Steele is to file and serve an answer to the Complaint within 10 days.

Ashbrook’s Demurrer and Motion to Strike

As to the first cause of action, while the allegations appear sufficient to plead isolation (see Compl. ¶¶ 23-25), Ashbrook is correct that the Complaint fails to include facts demonstrating that Plaintiff experienced physical harm, pain or mental suffering as a result of the alleged isolation by Ashbrook.  (See Welf. & Inst. Code §§ 15610.07(a)(1); 15610.53.)  There are no allegations that Plaintiff suffered any physical harm.  The allegations appear to attempt to allege mental suffering but fall short of doing so.  The conclusory allegation that Plaintiff was “harmed” is insufficient to demonstrate that Plaintiff suffered fear, agitation, confusion, severe depression, or other forms of serious emotional distress.  (Compl. ¶ 40; Welf. & Inst. Code § 15610.53.)  Thus, the demurrer on this ground is well-taken. 

Accordingly, Ashbrook’s demurrer to the first cause of action is SUSTAINED with 20 days leave to amend.

As to the second cause of action, the allegations are insufficient to plead that Ashbrook directly engaged in financial elder abuse.  The allegation that Ashbrook used Plaintiff’s money to pay the credit card bills Steele incurred is insufficient to show that Ashbrook took Plaintiff’s money for a wrongful purpose or with intent to defraud.  (Welf. & Inst. Code § 15610.30(a).)  For instance, there is no allegation Ashbrook was paying Plaintiff’s credit card bills with the knowledge the items purchased with the credit cards were not authorized by Plaintiff.  (See Compl. ¶¶ 28, 33.) 

The allegations that Ashbrook assisted Steele in committing financial elder abuse are likewise deficient.  (Compl. ¶¶ 31, 50.)  The allegations do not show that any assistance Ashbrook provided to Steele was with the knowledge that Steele was improperly taking money from Plaintiff.  (See Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 744 [Welf. & Inst. Code § 15610.30(a)(2) cannot be understood to impose strict liability for assistance in an act of financial abuse.].)

Accordingly, Ashbrook’s demurrer to the second cause of action is SUSTAINED with 20 days leave to amend.

As to the third cause of action, contrary to Ashbrook’s argument, the Complaint sufficiently pleads existence of a fiduciary duty based on the Power of Attorney.  (Compl. ¶ 57.)  Ashbrook’s argument that the Complaint fails to allege that the Power of Attorney was immediate, and that Ashbrook accepted in writing raises issues outside the scope of the pleading and is therefore not properly considered on demurrer.  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.)  In addition, the question of plaintiff's ability to prove the allegations in the complaint, or possible difficulties in making such proof, is of no concern in ruling on a demurrer.  (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214.)

The Complaint also adequately alleges a breach of fiduciary duty and damages.  (Compl. ¶¶ 59-60.)  The argument that the breaches related to Ashbrook’s alleged isolation of Plaintiff from his family involve duties not enumerated by the Power of Attorney fails.  Again, this improperly raises issues outside the scope of the pleading.  The Power of Attorney is not attached to the Complaint, and the pleading does not allege that such duties were excluded.

Accordingly, Ashbrook’s demurrer to the third cause of action is OVERRULED.

Ashbrook’s request for judicial notice is GRANTED as to the existence of and legal effects of the record, but not as to the truth of any disputed facts asserted therein.  (Ev. Code §452(d); Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.)

Given the Court’s ruling sustaining the demurrer in part with leave to amend, the Court deems the motion to strike MOOT without prejudice to renewal.

Steele’s Demurrer and Motion to Strike

Steele’s only argument related to the first cause of action is that some of the events fall outside the 2-year statute of limitations for elder abuse claims, rendering the complaint uncertain.  A demurrer for uncertainty under Code of Civil Procedure 430.10, subdivision (f) will be sustained only where the complaint is so poorly pled that a defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.  (Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)  Here, the allegations are not so poorly pled that Steele cannot respond.  Any ambiguity regarding dates can be clarified during discovery.

Steele also contends that claims for elder abuse based on actions occurring before August 22, 2018, are time barred.  Even if this is so, the Complaint includes allegations of events occurring in 2020 and 2021, within the statute of limitations.  (Compl. ¶ 27.)  Because a demurrer does not lie to a portion of a cause of action, the demurrer on this ground is not well-taken. (See Elder v. Pacific Bell Telephone Co. (2012) 205 Cal.App.4th 841, 856 fn 14.)  Further, in ruling on a demurrer based on statute of limitations grounds, the running of the statute must appear “clearly and affirmatively” from the face of the complaint.  It is not enough that the complaint might be time-barred.  (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42; Stueve Bros. Farms, LLC v. Berger Kahn (2013) 222 Cal.App.4th 303, 321.)  Here, it is not clearly shown from the face of the complaint that all allegations are time-barred.

Accordingly, Steele’s demurrer to the first cause of action is OVERRULED.

As to the second cause of action, the Court finds the Complaint adequately pleads that Steele took Arnold’s money for a wrongful use.  (See Welf. & Inst. Code § 15610.30(a)(1); Compl. ¶¶ 24, 27.) 

Accordingly, Steele’s demurrer to the second cause of action is OVERRULED.

The Court declines to consider Steele’s argument raised for the first time in the Reply that issues relating to Arnold’s trust fall within the exclusive jurisdiction of the probate court.  (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-38.)

Because the elder abuse claims against Steele remain viable, and because punitive damages and attorney’s fees may be recoverable in connection with such causes of action, the Court DENIES Steele’s motion to strike.  (See Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 789; Welf. & Inst. Code § 15657(a); Welf. & Inst. Code § 15657.5.)

Counsel for Plaintiff to give notice.