Judge Thomas Falls, Case 22PSCV00893 2023-04-19 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 a Catholic rosary and Funeral at Saint Joseph Church in Pomona.

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 allegations 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.)