Judge Thomas Falls, Case 22PSCV00893 2023-04-18 Tentative Ruling

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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 SECOND AMENDED COMPLAINT is OVERRULED.

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.

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.

On January
23, 2023, the court sustained in part and overruled in part Defendant’s
demurrer, giving leave to amend only as to the individual defendant.

On February
21, 2023, Plaintiff filed her Second Amended Complaint (“SAC”) for:

Before the
court engages in the merits of the demurrer, it must address two of Plaintiff’s
points raised in opposition: (1) the demurrer is untimely because it was served
more than 30 days after Plaintiff served Defendant with the amended complaint
and (2) the demurrer addresses causes of action that were previously overruled
by the court. Of import, Defendants’ Reply does not address these
points. In any event, as will be discussed below, neither are sufficient
reasons to overrule the demurrer.

First, as for
the timeliness argument, while CCP section 430.40 states that a person against
whom a complaint or cross-complaint has been filed may, within 30
days after service of the complaint or cross-complaint, demur to
the complaint or cross-complaint, this rule does not apply to amended
complaints. (See McAllister v. County of Monterey (2007) 147
Cal.App.4th 253, 280, quoting Weil & Brown,
Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2006) ¶
7:139, p. 7–53.) [“The cited provision
thus uses the permissive expression ‘may,’ not the mandatory term ‘must.’ . . .
Furthermore, the quoted provision nominally applies only to a first round of
demurrers. As one commentator observes: ‘No statute or rule specifically
provides a time limit for demurring to an amended complaint.’”
Even if that were not the case, the court can also increase the time to
file a demurrer “in furtherance of justice”. (See CCP §473(a)(1).)

Here, the
30-day limit does not apply to amended complaints and Defendants have
demonstrated a good-faith interest in litigating the matter such that it is in
the interest of justice to hear the demurrer.

Therefore, the
court will not overrule the demurrer on the grounds that it is untimely.

Second, as to
Plaintiff’s second argument,[1]
a defendant cannot demur on the same grounds
to a previous demurrer that was overruled. (County of El Dorado v. Superior
Court (2019) 42 Cal.App.5th 620, 625.)

Here, however, the same grounds are not at issue because the demurrer
involves different reasonings and analysis. (Id.) More
specifically, while the first ruling and demurrer focused predominantly on the
issue of the statute of limitations, now the arguments are based upon other
grounds.

(2) Plaintiff fails to state claims for fraud and IIED because as
decedent’s personal representative she cannot recover for emotional distress;
and

(3) there are no allegations that the individual defendant performed
actional acts in his personal capacity.

Health &
Safety Code § 7100 provides that “(a) The right to control the disposition
of the remains of a deceased person, the location and conditions of interment,
and arrangements for funeral goods and services to be provided, unless
other directions have been given by the decedent pursuant to Section 7100.1,
vests in, and the duty of disposition and the liability for the reasonable cost
of disposition of the remains devolves upon, the following in the order named:
. . . “(1) An agent under a power of attorney for
health care who has the right and duty of disposition under Division 4.7 (commencing
with Section 4600) of the Probate Code, except that the agent is liable for the
costs of disposition only in either of the following cases . . . (3) The sole surviving competent adult
child of the decedent or, if there is more than one competent adult child of
the decedent, the majority of the surviving competent adult children. However,
less than the majority of the surviving competent adult children shall be
vested with the rights and duties of this section if they have used reasonable
efforts to notify all other surviving competent adult children of their
instructions and are not aware of any opposition to those instructions by the
majority of all surviving competent adult children.”

In
turn, Section 7100.1 7100.1 states that: “(a) A decedent, prior to death, may direct,
in writing, the disposition of his or her remains and specify funeral goods and
services to be provided. Unless there is a statement to the contrary that is
signed and dated by the decedent, the directions may not be altered, changed,
or otherwise amended in any material way, except as may be required by law, and
shall be faithfully carried out upon his or her death, provided both of the
following requirements are met: (1) the directions set forth clearly and
completely the final wishes of the decedent in sufficient detail so as to
preclude any material ambiguity with regard to the instructions; and, (2)
arrangements for payment through trusts, insurance, commitments by others, or
any other effective and binding means, have been made, so as to preclude the
payment of any funds by the survivor or survivors of the deceased that might
otherwise retain the right to control the disposition.”

Here, while
Plaintiff may have alleged by incorporation (Exhibit 1) that decedent had two
other children, that is inapposite because Health and Safety Code section 7100
only applies if the decedent did not give other instructions. But
here, Plaintiff alleges that decedent had her funeral wishes written down with specific instructions,
and she trusted and authorized the business Todd Memorial Chapel to execute her
wishes as she had stated therein, and then she signed her name and dated it.
(See SAC ¶48 [“contractual wishes and
instructions for decedent’s funeral and interment”].)

To the extent that Defendants have
filed a reply, they now advance a different argument (which is
impermissible on a reply)[2]
which is that Plaintiff did not possess the decedent’s power of authority for
health care to have authority over the remains. Again, that is not so because other
directions were given by the decedent pursuant to Section 7100.1 such that
section 7100 does not apply. And to the extent that Defendants argue “there
is no evidence” (Reply p. 3:8-9) that Plaintiff was an agent under a power of
attorney for health care under California Probate Code section 4600, a demurrer
tests the sufficiency of the pleadings; it does not require evidence.

Therefore, the court OVERRULES the
demurrer to the extent that Defendants rely upon Plaintiff’s alleged lack of
dispositional authority.

California Code of Civil Procedure
(“CCP”) section 377.34 states: “(a) In an action or proceeding by a
decedent's personal representative or successor in interest on the
decedent's cause of action, the damages recoverable are limited to the
loss or damage that the decedent sustained or incurred before death,
including any penalties or punitive or exemplary damages that the decedent
would have been entitled to recover had the decedent lived, and do not include
damages for pain, suffering, or disfigurement.”

Defendants (briefly) aver that
Plaintiff’s Third, Fourth and Fifth causes of action do not state claims of
relief for intentional misrepresentation, fraud and IIED because, as the
decedent’s personal representative, Plaintiff cannot recover emotional distress
or punitive damages by statute.

Here, the court is uncertain as to
Defendants’ argument because Plaintiff is not seeking emotional or punitive
damages based upon decedent’s causes of actions but based upon
Plaintiff’s own causes of action, stemming from Plaintiff’s inability to
carry out her fiduciary duties to decedent based upon Defendants’ alleged
fraudulent concealment of documents and/or Defendants’ failure to contact
Plaintiff when the memorial obtained decedent’s body.

Therefore, as the foregoing causes of
action are not based upon a wrongful death claim and the Reply does not
clarify the matter, the court OVERRULES the demurrer on said grounds.

Defendants argue that Plaintiff’s SAC
alleges no facts other than ownership in support of her claim for individual
liability against defendant Todd.

Here, Defendants narrowly read the
allegations in the SAC because the crux of the allegations are not that Todd negligently
or erroneously handled the decedent’s body in violation to the
funeral contract, but that he made allegedly withheld, concealed, and
suppressed material facts regarding the funeral contract. As such, while
Defendants are correct in that an employee or an owner do not incur personal
liability for torts of the corporation “merely by reason of their official
position,” the remainder of the very case and rule they cite provides that the
rule does not apply wherein the directors or officers “participate in
the wrong or authorize or direct that it be done.” (Demurrer p. 9, citing United
States Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal.3d 1368, 1379 (Liab
Ins.) As this state’s Supreme Court further
explained in Liab Ins., “liability does not depend on the same grounds
as ‘piercing the corporate veil,’ on account of inadequate capitalization for
instance, but rather on the officer or director's personal participation or
specific authorization of the tortious act.” (Id.) And here, the SAC
makes sufficient alleges for purposes of a demurrer, that Todd, even as
owner, participated in the tortious conduct by his purported
misrepresentations. (SAC ¶10).

Based on the foregoing—notably that much
of Defendants’ arguments are factual determinations which are inappropriate on
a demurrer—the court OVERRULES the entirety of the demurrer.

[1] Defendants demur to the 1^st cause of
action for Breach of Fiduciary Duty, 2^nd Cause of Action for Breach
of Contract, 3^rd Cause of Action for Fraudulent concealment, 4^th
Cause of Action for Intentional Misrepresentation, and 5^th Cause of
Action for Intentional Infliction of Emotional Distress (thus, all but the
sixth cause of action for punitive damages).

[2] “The general rule of motion practice,
which applies here, is that new evidence is not permitted with reply papers.” (Jay
v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.) Consequently, generally
regardless of the type of motion, “[p]oints
raised for the first time in a reply brief will ordinarily not be considered,
because such consideration would deprive the respondent of an opportunity to
counter the argument.” (Id. at p. 1538, quoting American Drug Stores
v. Stroh (1992) 10 Cal.App.4th 1446, 1453.)