Judge Upinder S. Kalra, Case 22STCV27635 2023-05-08 Tentative Ruling

RESPONDING PARTY(S): Plaintiffs Maria Capra, as successor personal representative of the Estate of Lucille Capra, Johnathan Capra, and Frank Capra, III

2. Demurrer is SUSTAINED, without leave to amend as to the 4^th cause of action.

On February 5, 2016, Plaintiffs Lucille Capra, Jonathan Capra, and Frank Capra III (“Plaintiffs”) filed a complaint against Defendant Thomas Capra (“Defendant.”) The complaint alleged four causes of action: (1) Declaratory Relief, (2) Conversion, (3) Breach of Fiduciary Duty, and (4) Constructive Trust. This matter involves a dispute as to the rights and interests of a Permit and Cabin located on National Forest System lands. The parties parents owned the Cabin and Permit, and in 1984 and 1992 both Frank Sr. and Lucille I died, passing the Cabin ownership to Frank II, Thomas Capra, and Lucille II with equal shares. The U.S. Forest Service would only allow one name to be placed on the permit when it was passed to Thomas, Frank, Jr., and Lucille II. When Frank Jr, died, his portion was passed to his widow and 3 children. However, without the consent of Plaintiffs, Defendant changed the Cabin locks, prevented access, have banned others from entering the property, and has threatened to sell the Cabin and keep the proceeds.

Defendant filed a demurrer, which was sustained without prejudice by the Mono County court, stating it did not have jurisdiction. Plaintiffs appealed the decision.

On December 22, 2020, the Third District Court of Appeal reversed the judgment of dismissal and vacated the order sustaining the demurrer. The parties entered a stipulation to transfer the matter to LA Superior Court.

The current Demurrer was filed on April 14, 2023. Plaintiff’s Opposition was filed on April 25, 2023. Defendant’s Reply was filed on May 1, 2023.

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. 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. …. 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 147 Cal.App.4th at 747.)

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 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.)

The Court may take judicial notice of the existence of the records, but not the truth of matters asserted in such records. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565). As a result, although the court may take judicial notice that the documents exists, the Court may not take judicial notice of the truth of the facts in the documents.

Additionally, Evidence Code only allows the Court to take judicial notice of certain types of documents. The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).) The Evidence Code does not allow the Court to take judicial notice of discovery responses or parts of cases, such as depositions.

1. Inventory for Decedent's Estate, filed June 25, 2010, In the Matter of the Estate of Frank Capra, Jr., North Carolina Probate case no. 08-E-206.

2. Amended Inventory for Decedent's Estate, filed December 2, 2010, In the Matter of the Estate of Frank Capra, Jr., North Carolina Probate case no. 08-E-206.

3. Final Account, filed December 2, 2010, In the Matter of the Estate of Frank Capra, Jr., North Carolina Probate case no. 08-E-206.

While the Court may take judicial notice of court documents, it cannot take judicial notice of the truth within the documents. Here, that is precisely what Defendant is requesting, that this Court take judicial notice of the truth of these documents.

Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. §430.41, and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to Code of Civ. Proc. §430.41(a)(2) & (3). No meet and confer declaration is provided. However, Defendant’s demurrer states that at the November 2, 2022 case management conference, the parties discussed this case, specifically whether Defendant intended to renew his demurrer or to file a modified version.

Defendant demurs on the grounds that the entire complaint fails because Plaintiffs Johnathan and Frank Capra lack standing, the claims raised by Lucille II can only be pursued by the trustee of the trust, and the 4^th cause of action for constructive trust fails because it is a remedy.

Defendant argues that Plaintiffs Jonathan and Frank III lack sanding because the claims are subject to the jurisdiction of the probate court of North Carolina. Plaintiffs ignore the fact that the Cabin and Permit were not listed as assets in the North Carolina Probate and not distributed to them. (Demurrer 8: 24 – 9: 3.) Under North Carolina law, any item that deals with probate or distributing the estate are within the jurisdiction of the probate court. (Is. At 9: 18-25, citing to North Carolina General Statute sections 28A-1-1(1 b), 28A-2-1 and 28A-2-4).) The claims raised in the SAC depend on: (1) that the Cabin/Permit was an asset of Frank II's estate (which presumably they claim was somehow mistakenly omitted), and (2) that it should have passed/been distributed to them from Frank Jr.’s estate.” (Demurrer 9: 26 – 10: 1.) Moreover, there has not been a determination that the assets belong to either Plaintiff.

Plaintiffs argue that they do have standing as this is not an estate administration case, as stated in the Court of Appeal decision. The probate took place in 2008 through 2010, more than five years before this matter.

The Court finds that the SAC is sufficiently pleaded, and John and Frank Capra III have standing. As Plaintiffs correctly argue, this is not an estate administration matter, as probate took place years prior. Thus, as the SAC states, when Frank II died intestate, the estate passed to his wife and three children, as under North Carolina law.

Defendant argues that Lucille II is not the real party in interest because Lucille II transferred her interest in the Permit and Cabin to her personal trust in 2001. Therefore, the proper plaintiff is the trustee. Therefore, Maria Capra, as personal representative of the probate estate is not the proper party.

Plaintiffs argue that previously, the parties stipulated to allow Maria Capra to be substituted into the case as plaintiff “since Maria Capra was appointed by the Probate Court of Leelenau County, Michigan as the successor personal representative in Lucille Capra’s informal probate case.” (Opp. 8: 7-9.) Moreover, this Court allowed the substitution. Additionally, Maria Capra was appointed as successor personal representative because John R. Capra, the original personal representative died. (Id. at 9-11.) Plaintiffs argue that Defendant has not provided any Michigan authority for this contention, nor has Defendant provided probate documents from Lucille’s probate. Lucille’s probate is being handled in Michigan by separate counsel and the claims at issue here are part of the open probate case in Michigan. Therefore, Maria Capra is the proper party as she was appointed by the Michigan probate court “for this express purpose after Defendant raised this issue.” (Opp. 9: 1-2.)

Similar to above, the Court finds that Maria Capra is the proper party. On February 2, 2023, the parties entered into a joint stipulation to allow Maria Capra to be the successor personal representative to Lucille II’s estate as John Capra had passed and the Probate Court of Leelenau County appointed her.

Defendant argues that a claim for constructive trust is a remedy, not a cause of action. Therefore, since a constructive trust is not a cause of action, it should be sustained.

Plaintiffs argue that under Civil Code § 2224 “One who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act, is, unless he or she has some other and better right thereto, an involuntary trustee of the thing gained, for the benefit of the person who would otherwise have had it.” Plaintiffs cite to Calistoga Civic Club which states to create a constructive trust as defined in section 2224, three conditions must be satisfied: the existence of a res (property or some interest in the property); the plaintiff's right to that res; and the defendant's acquisition of the res by some wrongful act.” (Calistoga Civic Club v. City of Calistoga (1983) 143 Cal.App.3d 111, 116.)

As to the constructive trust aspect, the Court finds that this was insufficiently pleaded. “Imposition of “[a] constructive trust is an equitable remedy to compel the transfer of property by one who is not justly entitled to it to one who is. [Citation.]” (Citation omitted). It is not “a substantive claim for relief.” (American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1485, as modified (May 27, 2014)).

Demurrer as to the 4^th Cause of Action is SUSTAINED, without leave to amend.

1. Issue an Injunction against Defendants precluding them from listing and selling the Cabin located at 763 Nevada Street, June Lake, Mono County, California, Lot 21 without the voluntary consent of Plaintiffs," set forth at pp. 26:14-16; 27:18-20; 28:25-27; 30:7-9; and 31:19- 21

2. Order Defendants to give a working key for the Cabin located at 763 Nevada Street, June Lake, Mono County, California, Lot 21 to the Plaintiffs and all other owners.

3. Order Defendants to not restrict Plaintiffs and their guests from visiting the Cabin located at 763 Nevada Street, June Lake, Mono County, California, Lot 21.

4. Order Defendants not to further convert or interfere with the personalty of other owners.

5. Order Defendants to complete and sign a U.S. Forest Service "Request for Termination of and Application for Special Use Permit.

6. Order Defendants to take all necessary steps to transfer the Permit into the name of the Frank R. and Lucille R. Capra Revocable Trust as the permittee on the "Application for Special Use Permit."

7. Order Defendants to complete and sign a "Designation of Legal Permitte form naming Plaintiffs and the other legal owners on the form.

8. Issue an Order to preclude any person from removing the personal property of another from the Cabin, or the surrounding area, without express permission.

9. Issue an Order to preclude any person from changing the locks of the Cabin without giving keys to all parties....

10. Issue an order to force the sale of the Cabin and for the proceeds to be split amongst the parties and other legal owners pursuant to their ownership interests according to the Will and Trust.

Defendant moves to strike the above portions of the SAC. Defendant argues that these requests for relief are all injunctive relief. However, Defendant argues that the SAC does not allege that there is another legal remedy available, that monetary relief is inadequate, or the amount of damages is difficult to ascertain.

Plaintiffs argue that this motion to strike is improper. First, Defendant relies on extrinsic evidence, that the Cabin was sold in 2020, to argue that these requests for relief are moot. Plaintiffs argue that they “intend to explore the issue of whether the transferee was a bona fide purchaser or not, and have reason to believe the transferee was not a bona fide purchase.” (Opp. 2: 13-16, emphasis in original.) As to Defendant’s claim about the SAC lacking any reference to an inadequate remedy at law, Plaintiffs argue that the allegations in the SAC concern specific property, which requires unique remedies. Thus, even if the words “inadequate remedy at law” are no in the SAC, an inference can be made from allegations as they concern the family cabin.

“A permanent injunction is an equitable remedy for certain torts or wrongful acts of a defendant where a damage remedy is inadequate. A permanent injunction is a determination on the merits that a plaintiff has prevailed on a cause of action for tort or other wrongful act against a defendant and that equitable relief is appropriate.” (Art Movers, Inc. v. Ni West, Inc. (1992) 3 Cal.App.4th 640, 646, 4 Cal.Rptr.2d 689.) Civil Code section 3422 allows the court to grant a permanent injunction “to prevent the breach of an obligation existing in favor of the applicant: [¶] 1. Where pecuniary compensation would not afford adequate relief; [¶] 2. Where it would be extremely difficult to ascertain the amount of compensation [that] would afford adequate relief; [¶] 3. Where the restraint is necessary to prevent a multiplicity of judicial proceedings; or, [¶] 4. Where the obligation arises from a trust. The first two grounds ‘embody the requirement that to obtain an injunction a plaintiff ordinarily must show that the defendant's wrongful acts threaten to cause irreparable injury, meaning injury that cannot adequately be compensated in damages.’” (Grail Semiconductor, Inc. v. Mitsubishi Electric & Electronics USA, Inc. (2014) 225 Cal.App.4th 786, 800 (Grail).)

Here, the Court finds that the SAC sufficiently alleges facts that would allow for injunctive relief.[1] The issue in the SAC is the use of a family cabin and whether Defendant has the right to exclude the other family members. Here, an injunctive relief would be the proper remedy as there is no adequate remedy. While Defendant argues that there are no references to “no other adequate remedy” in the SAC, taken as true, the Court finds that use of a family property would be an instance of a situation where “it would be extremely difficult to ascertain the amount of compensation [that] would afford adequate relief.” (Grail, supra, 225 Cal.App.4th at 800.) Additionally, the Grail Semiconductor Court went on to say: “In other words, to say that the harm is irreparable is simply another way of saying that pecuniary compensation would not afford adequate relief or that it would be extremely difficult to ascertain the amount that would afford adequate relief.” (Grail, supra, 225 Cal.App.4th at 801.”

[1] As a note, both parties citation to the fact that the Cabin was sold in 2020 is extrinsic evidence and cannot be used when deciding the demurrer. Neither party requested any judicial notice of any document indicating that the Cabin was sold.