Judge Upinder S. Kalra, Case 22STCV07463 2022-08-09 Tentative Ruling

Judge: Upinder S. Kalra, Case: 22STCV07463, Date: 2022-08-09 Tentative Ruling

Case Number: 22STCV07463 Hearing Date: August 9, 2022 Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE: August 9, 2022

CASE NAME: Tracy Fontentte Allen v. Ashely Nicole Fontenette, et al

CASE NO.: 22STCV07463

DEFENDANT’S DEMURRER WITH MOTION TO STRIKE

MOVING PARTY: Defendant MUFG Union Bank

RESPONDING PARTY(S): Plaintiff Tracey Fontenette Allen

REQUESTED RELIEF:

1. An order sustaining the demurrer as to the Third and Fourth Causes of Action

2. An order granting the Motion to Strike portions of the FAC

TENTATIVE RULING:

1. Demurrer is SUSTAINED, without leave to amend.

2. Motion to Strike is MOOT.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On March 2, 2022, Plaintiffs Tracey Fontenette Allen (“Plaintiff”) filed a complaint against Defendants Ashely Nicole Fontenette, Anthony H. Ruey, an individual and Sureties on his Bond, and Does 1 through 10.

Plaintiff filed a Motion for Leave to File First Amended Complaint, which was granted on May 27, 2022.

Plaintiff filed the First Amended Complaint on May 27, 2022, against Defendants Ashely Nicole Fontenette, Anthony H. Ruey, an individual and Sureties on his Bond, MUFG Union Bank, N.A., and Does 1 through 20. The FAC alleged four causes of action: (1) Breach of Fiduciary Duty as to Defendant Ruey, (2) Fraud and Deceit as to Defendant Ashley Fontenette, (3) Failure to Comply with Form 0044 – failure to file a Suspicious Activity Report and Emotional Distress as to Defendant Union Bank, and (4) Emotional Distress as to Defendants Ruey and Ashley Fontenette. The complaint alleges that Plaintiff and Victor Fontenette were trustees of their mother’s living trust. Plaintiff alleges that Defendant Ashley Fontenette fraudulently obtained power of attorney as to her father, Victor Fontenette, and withdrew money from the family trust for personal gain.

Defendant MUFG Union Bank, N.A filed a Demurrer with a Motion to Strike on July 6, 2022. Plaintiff filed an Opposition on July 29, 2022. Defendant’s reply was filed on August 2, 2022.

LEGAL STANDARD

A demurrer for sufficiency tests whether the complaint states a cause of action.¿¿(Hahn v. Mirda¿(2007) 147 Cal.App.4th 740, 747.)¿When considering demurrers, courts read the allegations liberally and in context.¿(Taylor v. City of Los Angeles Dept. of Water and Power¿(2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co.¿(2004) 116 Cal.App.4th 968, 994.)¿“A demurrer tests the pleadings alone and not the¿evidence or other extrinsic matters.¿Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”¿(SKF Farms v. Superior Court¿(1984) 153 Cal.App.3d 902, 905.)¿“The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”¿(Hahn, supra, 147 Cal.App.4th at p. 747.)

Motion to Strike

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436(b).) The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (Id. § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.) “When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.” (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.)

Meet and Confer:

The Declaration of Ronald R. St. John attached to the Demurrer indicates that he emailed Plaintiff on June 28, 2022, and requested that she call. The Declaration indicates that the parties spoke on June 29, 2022, but were unable to resolve the issues raised. No email is attached to the Demurrer or declaration.

Timeliness:

The Opposition was not filed in a timely manner; it was two days late. The Opposition was served by certified mail rather than overnight. As such, the Defendant’s reply was one day late. Because the Defendant had an opposition to substantively respond, the court will consider the late filed motions.

ANALYSIS:

Defendant demurs on the grounds that the first, third, and fourth causes of action fail to state facts that constitute causes of action.

1. Failure to File a Suspicious Activity Report (First Cause of Action)

There is no private action for failure to file a Suspicious Activity Report in California. (Karen Kane Inc. v. Bank of America (1998) 67 Cal.App.4th 1192, 1203).

The Demurrer as to the First Cause of Action is SUSTAINED.

2. Emotional Distress (Fourth Cause of Action)

Intentional infliction of emotional distress requires the Plaintiff to show “(1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160).

A “negligent causing of emotional distress is not an independent tort but the tort of negligence....’ [Citation.] ‘The traditional elements of duty, breach of duty, causation, and damages apply.’” (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 729). “In the absence of physical injury or impact to the plaintiff himself, damages for emotional distress should be recoverable only if the plaintiff: (1) is closely related to the injury victim, (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and, (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness.” (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1073).

The FAC does not allege facts that constitute either intentional or negligent infliction of emotional distress. No allegations are stated that Defendant intended to cause emotional distress or outrageous conduct required for a cause of action for intentional infliction of emotional distress. Further, the bystander theory of negligent infliction of emotional distress does not apply.

The Demurrer as to the Fourth Causes of Action is SUSTAINED.

Leave to Amend:

Leave to amend should be liberally granted if there is a reasonable possibility an amendment could cure the defect. (County of Santa Clara v. Superior Court (2022) 77 Cal.App.5th 1018,1035.) The Plaintiff has the burden of demonstrating that leave to amend should be granted, and that the defects can be cured by amendment. (“Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” Goodman v. Kennedy (1976) 18 Cal.3d 335, 349). As there is no cause of action for failure to file a suspicious activity report, it is unlikely that Plaintiff will be able to amend. Nor is there any indication that Plaintiff has evidence or can obtain evidence establishing the elements of either intentional or negligent infliction of emotional distress. In fact, Plaintiff disavows that she intends to proceed under such a cause of action. Instead, she her claim is founded on a so called violation of Civil Code § 1708. Plaintiff has presented no authority that such a theory can support a cause of action for emotional distress. As such, leave to amend is denied

Motion to Strike:

Since the Court is Sustaining the FAC for all causes of action related to Defendant Union Bank, the Motion to strike is Moot.

Conclusion:

For the foregoing reasons, the Court decides the pending motion as follows:

Demurrer as to the Third and Fourth Causes of Action is SUSTAINED, without leave to amend.

Motion to Strike is Moot.

Clerk to give notice.

IT IS SO ORDERED.

Dated: August 9, 2022 __________________________________ Upinder S. Kalra

Judge of the Superior Court

DEFENDANT RUEY’S DEMURRER WITH MOTION TO STRIKE (8970)

MOVING PARTY: Defendant Anthony H. Ruey

RESPONDING PARTY(S): Plaintiff Tracey Fontenette Allen

REQUESTED RELIEF:

1. An order sustaining the demurrer as to the First and Fourth Causes of Action

2. Motion to Strike

TENTATIVE RULING:

Demurrer is SUSTAINED, without leave to amend, as to the First and Fourth Causes of Action

Motion to Strike is Moot.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff filed a Motion for Leave to File First Amended Complaint, which was granted on May 27, 2022.

Defendant Ruey filed a Demurrer without a Motion to Strike on May 11, 2022, and a Demurrer without a Motion to Strike Amended on July 7, 2022. Plaintiff filed an Opposition on July 29, 2022. Defendant’s reply was filed on August 2, 2022.

LEGAL STANDARD

Meet and Confer:

The Declaration of Shannon M. Benbow, filed on July 7, 2022, indicates that she emailed Plaintiff concerning the demurrer. Plaintiff left a voicemail indicating that she would not dismiss Mr. Ruey from the litigation.

Service:

Proof of Service indicates that the Defendant emailed and mailed the Demurrer and the Reply to Plaintiff and other Defendants. Proof of Service attached to Plaintiff’s Opposition indicates that the documents were sent via mail.

ANALYSIS:

First Cause of Action: Breach of Fiduciary Duty

Defendant contends that the first cause of action for breach of fiduciary duty fails because Plaintiff lacks standing to bring this action and the action fails to state sufficient facts to constitute a cause of action.

“The elements of a claim for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) its breach, and (3) damage proximately caused by that breach.” (O'Neal v. Stanislaus County Employees' Retirement Assn. (2017) 8 Cal.App.5th 1184, 1215).

Paragraph 50 of the FAC states, “Notary Ruey breached his fiduciary duty to Victor by using witnesses who were not present at the convalescent center…” Thus, the FAC alleges that Defendant owed Victor a fiduciary duty, not Plaintiff. Since the FAC does not allege the existence of a fiduciary relationship between Plaintiff and Defendant, the FAC fails to state a cause of action.

The Demurrer as to the First Cause of Action is SUSTAINED.

Fourth Cause of Action:

Defendant contends that the fourth cause of action for emotional distress fails. The FAC does not indicate if the cause of action is for negligent or intentional infliction of emotional distress.

The FAC does not allege facts that constitute either intentional or negligent infliction of emotional distress. No allegations are stated that Defendant intended to cause emotional distress. Further, the bystander theory of negligent infliction of emotional distress also does not apply. The FAC states that “Plaintiff Allen witnessed Victor suffer complete shock and emotional trauma when he was told that his personal trust account was invaded, and money was fraudulently wired from the family trust account by his daughter Defendant Ashley.” (FAC ¶ 46). As required under bystander negligent infliction of emotional distress, there was no “injury-producing event.” Even if the notarizing of the Power of Attorney is considered an injury inducing event, Plaintiff was not present. Merely stating that she saw Victor’s shock is not enough to trigger a cause of action for negligent infliction of emotional distress on to Defendant Ruey for notarizing Victor’s signature. Moreover, as stated above, negligent infliction of emotional distress is one in negligence, which requires duty. As established above, Defendant did not have a duty to Plaintiff.

The Demurrer as to the Fourth Cause of Action is SUSTAINED.

Leave to Amend:

Leave to amend should be liberally granted if there is a reasonable possibility an amendment could cure the defect. (County of Santa Clara v. Superior Court (2022) 77 Cal.App.5th 1018,1035.) The Plaintiff has the burden of demonstrating that leave to amend should be granted, and that the defects can be cured by amendment. (“Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” Goodman v. Kennedy (1976) 18 Cal.3d 335, 349). Leave to amend is denied as to the first cause of action because Plaintiff lacks standing and it is unlikely that Plaintiff will be able to show a fiduciary relationship with Defendant Ruey, as Victor signed the Power of Attorney, which Defendant Ruey notarized. Plaintiff was not a part of that transaction. Similarly, it is unlikely that Plaintiff will be able to successfully allege facts that would constitute negligent infliction of emotional distress as Defendant had no duty to Plaintiff.

Leave to Amend is DENIED.

Motion to Strike:

Since the Court is Sustaining the FAC for all causes of action related to Defendant Union Bank, the Motion to strike is Moot.

Conclusion:

For the foregoing reasons, the Court decides the pending motion as follows:

Demurrer as to the first and fourth causes of action is SUSTAINED, without leave to amend.

Motion to Strike is Moot.

Clerk to give notice.

IT IS SO ORDERED.

Dated: August 9, 2022 _________________________________ Upinder S. Kalra

Judge of the Superior Court