Judge: Virginia Keeny, Case: 23STCV25041, Date: 2025-03-13 Tentative Ruling

Case Number: 23STCV25041    Hearing Date: March 13, 2025    Dept: 45

SUNDERRAJ MARK KAMALESON V. RUTH KAMALESON LOISEL

 

DEMURRER to plaintiff’s FIRST AMENDED complaint WITH MOTION TO STRIKE

 

Date of Hearing:        March 13, 2025                     Trial Date:       None set.  

Department:              45                                            Case No.:        23STCV25041

 

Moving Party:            Defendant Ruth Kamaleson Loisel aka Nirmala Ruth Kamaleson aka Nirmala Ruth Loisel aka Ruth Loisel

Responding Party:     Sunderraj Mark Kamaleson, Personal Representative of the Estate of Samule T. Kamaleson

Meet and Confer:      Kashfian Decl. ¶¶ 4-6

 

BACKGROUND

 

On October 13, 2023, Plaintiff Sunderraj Mark Kamaleson (“Plaintiff”) filed this action against Defendant Ruth Kamaleson Loisel (“Defendant”) and Does 1 to 20. The Complaint alleges that Plaintiff and Defendant were the children of Samuel T. Kamaleson (“Decedent”) and Adela Kamaleson (“Mother”) (collectively “Parents”), where Plaintiff was appointed as Decedent’s personal representative of the estate. The Complaint alleges that Defendant, as a co-signatory for Parents’ three bank accounts, was entrusted to pay for Parents’ expenses while they were outside of the state for work. Once Mother passed away in 2013, Decedent moved to Georgia to live with Plaintiff due to health issues. Defendant assumed sole responsibility for paying all of Decedent’s personal expenses and collected bank statements from Decedent’s California home. Once Decedent passed in 2021, Plaintiff eventually obtained the bank statements of the three accounts, which allegedly revealed that Defendant had spent of $50,000 on personal expenses, withdrawn $43,123, and transacted business with persons on matters not involving Decedent’s expenses.

 

The original Complaint was filed on October 13, 2023, and alleged the following causes of action: (1) Fraudulent Concealment, (2) Conversion, (3) Breach of Fiduciary Duty, and (4) Financial Elder Abuse (Welfare and Institutions Code § 15610.30 et seq.).

 

Defendant demurred to the original complaint. On October 29, 2024, the Court overruled the demurrer as to the First, Second, and Third Causes of Action. The Court sustained the demurrer as to the Fourth Cause of Action on the basis that the Complaint failed to state a claim for financial elder abuse because it failed to allege that Decedent was a resident of California at the time of the abuse.

 

On November 15, 2024, Plaintiff filed a First Amended Complaint (“FAC”) alleging the same causes of action. For the Fourth Cause of Action, Plaintiff has added allegations that Decedent still viewed the California house as his home, despite no longer living there, and had no intention of abandoning it as his residence because he never sold the house, leased it to tenants, or removed his clothes and furniture. (FAC, ¶¶ 13-17.)

 

Defendant demurs to the Fourth Cause of Action in Plaintiff’s FAC on the grounds that the allegations added to the FAC are still insufficient to show that Decedent was a California resident at the time of the alleged abuse.

 

Defendant moves to strike either the FAC in its entirety for being untimely, or, in the alternative, just the Fourth Cause of Action on the grounds that it is a sham.

 

In his combined opposition, Plaintiff argues that Fourth Cause of Action is sufficiently pled. Plaintiff also argues that the proscription against sham pleadings does not apply to the new allegations that were added in the FAC. Finally, Plaintiff argues that he timely filed the FAC within twenty days of the Court granting leave to amend.

 

Defendant argues in her replies that Decedent was not a resident of California for the financial elder abuse claim, that the FAC is a sham pleading, and that the unrelated statutes cited by Plaintiff do not require California residency. Defendant also insists that the FAC was untimely filed.

 

[Tentative] Ruling

 

Defendant’s Demurrer to the First Amended Complaint is sustained without leave to amend. The motion to strike the Fourth Cause of Action is granted on the basis that it is a sham pleading.

 

ANALYSIS

 

Request for Judicial Notice

 

Defendant requests this court take judicial notice of Exhibits 1 through 5, which are various documents filed with the Court in this case and the related probate case.

 

Defendant’s Request for Judicial Notice is GRANTED pursuant to Evid. Code §§452(d) and 453.

 

Likewise, Plaintiff also requests that the court take judicial notice of Exhibits 1 and 2, which are documents filed with the Court in the related probate case.

 

Plaintiff’s Request for Judicial Notice is GRANTED pursuant to Evid. Code § 452(d).

 

Fourth Cause of Action – Violation of Elder Abuse Statute (W&I Code § 15610.30)

 

Defendant argues that Plaintiff still has not shown that Decedent was an “elder” for purposes of the statute because Decedent was not a person over the age of 65 residing in the state at the time of the alleged financial abuse.

 

The Welfare & Institutions Code section 15610.30(a) defines financial elder abuse. Section 15610.27 defines an “elder” as “any person residing in this state, 65 years of age or older.” Section 17101 states that a person’s residence is “the place where one remains when not called elsewhere for labor or other special or temporary purpose, and to which he returns in seasons of repose.”

 

Despite the added allegations in the FAC, Plaintiff has still not demonstrated that Decedent was a resident of California at the time of the alleged financial abuse. The FAC states that “in July, 2013, the Decedent started splitting his time: (a) residing in Savannah, Georgia with Plaintiff; (b) residing in Raleigh, North, Carolina with MANOHORAN (the Decedent’s second son), and; (c) residing in California with Defendant (the Decedent’s daughter).” (FAC, 13.)

 

In the very next paragraph, Plaintiff alleges that “Although he no longer resided in the Arcadia [California] home starting in July, 2013, the Decedent harbored no intention of abandoning California as his residence.” (FAC, 14.) This sentence is contradictory, but also directly states that Decedent “no longer resided in the Arcadia home.”

 

Plaintiff does allege that Decedent never leased out the home and still kept personal items in the home and paid for expenses related to the home, as well as visited from time to time. (FAC, 14.) However, this does not meet the definition of a residence in Section 17101. It appears that Plaintiff attempts to allege that Decedent’s stays in North Carolina and Georgia were only temporary and that Decedent intended to return to California. (FAC, 16.) This, however, is further contradicted by other allegations in the FAC, which state that “Decedent no longer resided in that [California] home,” and “Decedent’s move to Georgia” is also mentioned. (FAC, 24.)

 

Based on the foregoing, the allegations in the FAC are insufficient to demonstrate that Decedent was a resident of California at the time of the alleged elder abuse. In fact, the allegations appear to demonstrate the opposite: that Decedent was a resident of another state from 2013 until the time of his death in 2021. (FAC, ¶¶ 13, 16, 22, 24.)

 

Plaintiff’s arguments in opposition that unrelated Code sections and other sections of the Welfare & Institutions Code do not require California residence are unavailing, as it is clear that Section 15610.30(a) requires California residence, based on the definition of an elder in Section 15610.27.

 

Accordingly, Defendant’s demurrer to the Fourth Cause of Action is sustained. Plaintiff has not requested leave to amend in his opposition, nor has Plaintiff demonstrated that he could amend the complaint to support a cause of action for financial elder abuse. Therefore, no leave to amend shall be granted.

 

MOTION TO STRIKE

 

Timeliness

 

“Following a ruling on a demurrer, unless otherwise ordered, leave to answer or amend within 10 days is deemed granted, except for actions in forcible entry, forcible detainer, or unlawful detainer in which case 5 calendar days is deemed granted.” (Cal. Rules of Court, Rule 3.1320(g).

 

Defendant argues that Plaintiff’s FAC was untimely filed because no time limit for filing was given in Judge Recana’s October 29, 2024, Order. Plaintiff filed the FAC on November 15, 2024, which is after the 10 day time limit given in Cal. Rules of Court, Rule 3.1320(g).

 

Plaintiff argues in opposition that Judge Recana orally gave Plaintiff 20 days to file an amended complaint at the October 29, 2024, hearing. Defendant disputes this in reply and argues that Plaintiff’s FAC should be dismissed.

 

As indicated by the above demurrer discussion, the Court has chosen to address the merits of Plaintiff’s Fourth Cause of Action. The Court will not dismiss the FAC based on timeliness.

 

Sham Pleading

 

“A court has authority to strike sham pleadings.” (Ricard v. Grobstein, Goldman, Stevenson, Siegel LeVine & Mangel (1992) 6 Cal.App.4th 157, 162 (Ricard). “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.) Indeed, “allegations in the original pleading that rendered it vulnerable to demurrer or other attack cannot simply be omitted without explanation in the amended pleading.” (Id.) “The policy against sham pleadings requires the pleader to explain satisfactorily any such omission.” (Id.) Likewise, the plaintiff “may not plead facts that contradict the facts or positions that the plaintiff pleaded in earlier actions.” (Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 344, italics in original.)

 

The additions to Plaintiff’s FAC are contradictory to Plaintiff’s previous allegations about Decedent moving to Georgia. As previously noted, the FAC also contradicts itself in several spots. Therefore, Plaintiff’s new allegations could be considered a sham pleading.

 

The Court has already sustained Defendant’s demurrer to the Fourth Cause of Action without leave to amend. Additionally, the Court finds that the Fourth Cause of Action should be stricken because it is a sham pleading.

 

Accordingly, the Court grants the motion to strike the Fourth Cause of Action on the basis that it is a sham pleading.

 

CONCLUSION

 

Defendant’s demurrer to Plaintiff’s Fourth Cause of Action is sustained without leave to amend.

 

Defendant’s motion to strike the Fourth Cause of Action as a sham pleading is granted.