Judge Thomas Falls, Case 22PSCV00893 2023-01-23 Tentative Ruling

RE: MARIA VINE, AS SUCCESSOR/TRUSTEE AND EXECUTOR OF THE ESTATE OF ASCENSION GARCIA vs JOHN TODD, et al. (22PSCV00893)

DEFENDANTS’ DEMURRER TO PLAINTIFF MARIA VINE'S FIRST AMENDED COMPLAINT is OVERRULED in part and SUSTAINED in part. The court sustains the Demurrer, with leave to amend, only as to the individual Defendant.

This case pertains to a decedent’s funeral request. Plaintiff Maria Vine alleges the following against Defendant John Todd: Plaintiff’s mother (“Decedent”) made funeral and interment arrangements with Todd Memorial. Plaintiff alleges that on May 10, 2018, Defendant breached the funeral agreement by failing to give Decedent to a Catholic mass rosary combo.[1]

On August 22, 2022, Plaintiff filed the instant action asserting the following causes of action:

On October 20, 2022, Plaintiff filed a First Amended Complaint (“FAC”), asserting a new cause of action for Fraudulent Concealment, rendering the 09/26 demurrer moot.

A demurrer may be asserted on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain (“uncertain” includes ambiguous and unintelligible); (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct; (h) No certificate was filed as required by CCP §411.35 or (i) by §411.36. CCP §430.10.

The face of the pleading includes attachments and incorporations by reference (Frantz v. Blackwell, (1987) 189 Cal.App.3d 91, 94); it does not include inadmissible hearsay. Day v. Sharp, (1975) 50 Cal.App.3d 904, 914.

The sole issue on demurrer for failure to state a cause of action is whether the facts pleaded, if true, would entitle the plaintiff to relief. Garcetti v. Superior Court, (1996) 49 Cal.App.4th 1533, 1547; Limandri v. Judkins, (1997) 52 Cal.App.4th 326, 339. The question of plaintiff’s ability to prove the allegations of the complaint or the possible difficulty in making such proof does not concern the reviewing court. Quelimane Co. v. Stewart Title Guaranty Co., (1998) 19 Cal.4th 26, 47. The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. Marshall v. Gibson, Dunn & Crutcher, (1995) 37 Cal.App.4th 1397, 1403. Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. Vance v. Villa Park Mobilehome Estates, (1995) 36 Cal.App.4th 698, 709.

At the outset, the court will address Defendants’ argument that Plaintiff has engaged in sham pleading.

“Under the sham pleading doctrine, plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment.” (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425) (emphasis added).

“‘Generally, after an amended pleading has been filed, courts will disregard the original pleading. However, an exception to this rule is found ... where an amended complaint attempts to avoid defects set forth in a prior complaint by ignoring them. The court may examine the prior complaint to ascertain whether the amended complaint is merely a sham.’ Moreover, any inconsistencies with prior pleadings must be explained; if the pleader fails to do so, the court may disregard the inconsistent allegations. [Citation.] Accordingly, a court is ‘not bound to accept as true allegations contrary to factual allegations in former pleading in the same case.’ [Citation.]” (Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 343; quoting Vallejo Development Co. v. Beck Development Co. (1994) 24 Cal.App.4th 929, 946.)

Here, Plaintiff did not previously state the date of discovery of the breach of fiduciary duty or breach of contract for her to now omit, suppress, change, or make any inconsistent allegation.[2] Said differently, as the sham pleading doctrine generally requires avoiding by withdrawing a harmful allegation, it cannot be said that Plaintiff has engaged in sham pleading by adding clarification to an ultimate fact (date of discovery).

Therefore, as the sham pleading doctrine is inapplicable, the court now turns to each cause of action.

As for the causes of action, Defendants do not focus on the elements of each cause of action, but rather solely focus on the statute of limitations defense. (See also Notice of Demurrer, p. 1:11-13 [Defendants demur because “the pleading reveals that they are barred by the applicable four-year statute of limitations.”].) Therefore, the court will only address the statute of limitations.

The statute of limitations for a breach of fiduciary duty cause of action is four years, unless the gravamen of the claim is actual or constructive fraud, in which case the statute of limitations is three years. (See American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1479.) Breach of written contract claims are subject to a four-year statute of limitations. (See Code Civ. Proc., § 337(1).) As such, the statute of limitations for both causes of action is four years.

Here, Plaintiff alleges that she discovered both breaches in March of 2021 “under the discovery rule.”[3]

However, Defendants aver that Plaintiff became aware of both claims no later than May 24, 2018, when she had not been contacted regarding the disposition of her mother’s remains, which is the basis for both causes of action. (Demurrer p. 3.) Four years from May 24, 2018 is May 24, 2022; however, Plaintiff did not file her action until August 22, 2022, which is three months and ten days after the four-year statute of limitations period.

While Defendants’ point is persuasive, the court is bound to the pleadings on a demurrer. (CCP §430.30(a); Blank v. Kirwan, (1985) 39 Cal.3d 311, 318 [Demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading.].)

Accordingly, as the pleading states that Plaintiff discovered the breaches in March of 2021, then the statute of limitations (which would expire in March of 2025) has not passed.

Therefore, the court OVERRULES the demurrer as the 1^st and 2^nd causes of action.

Defendants argue that the individual defendant (Todd) cannot be liable solely on the grounds that he is the owner of the corporation. (Demurrer p. 9, citing Auer v. Frank (1964) 227 Cal.App.2d 396, 405.) Though Auer pertained to the alter ego doctrine, which Plaintiff has not alleged, an owner of a corporation—absent certain circumstances—may not be held liable for actions of the corporation.

Therefore, the court SUSTAINS the demurrer as to the individual Defendant Todd, leave to amend.

Based on the foregoing, the demurrer is OVERRULED in part and SUSTAINED in part.

[1] According to the original complaint, there are two other related lawsuits: one in Los Angeles County (Case No. 18PSCV00003) and one in San Bernardino County (CIVDS 2017638). However, Plaintiff has not filed a notice of related case. A review of the LA County case—which was asserted against Margarita McKean (“McKean”)—indicates that McKean allegedly gave instructions to a funeral home which were not properly authorized in the Decedent's written instructions; and that the McKean wrongfully trespassed onto the Decedent's property (and removed items therefrom). On February 1, 2022, the Minute Order indicates that the matter was settled. The last filing in the court docket in the case entitled 18PSCV00003 stated that the OSC Re Dismissal (Settlement) scheduled for 11/02/22 was continued to 11/18/2022 in Dept. A before the Honorable Salvatore Sirna. However, the docket does not reveal that a formal dismissal has yet been filed. The court will inquire about the related cases during the hearing.

[2] Even Defendant acknowledges this fact. (Demurrer p. 5 [“Significantly, she did not allege any facts relating to a purported late discovery in the original complaint.”].)

[3] Plaintiff cites to Exhibit 9 of her complaint. Exhibit 9 is attachment of various filings from “MCS Group” dated to December 21, 2020. The court is uncertain as to the relevance of the documents, but it appears to be copies of the health records subpoena(s) and supporting documents that were issued in Plaintiff’s San Bernardino case (Plaintiff v. Ontario Cemetery Association Dba Bellevue Memorial Park).