Judge: Walter P. Schwarm, Case: 30-2022-01259867, Date: 2022-10-18 Tentative Ruling
Cross-Defendant’s (Nancy Grace Creasy) General and Special Demurrer and Demurrers to Cross Complaint of Liza Dulaney CCP 430.10(a), (d), (e) & (f) (Demurrer), filed on 7-25-22 under ROA No. 24, is SUSTAINED in part and OVERRULED in part as set forth below.
The court GRANTS Cross-Defendant’s Request for Judicial Notice, filed on 7-25-22 under ROA No. 22, pursuant to Evidence Code section 452, subdivision (d), as to the existence of Exhibits 1 and 2, but not as to the truth of the any matter asserted in Exhibits 1 and 2. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1570.)
“A demurrer tests the pleading alone, and not the evidence or the facts alleged. . . . To the extent there are factual issues in dispute, however, this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4th 1228, 1238, provides, “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant. [Citations.]” C.A. v. William S. Hart Union High School District (2012) 53 Cal.4th 861, 872 (C.A.), provides, “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged. [Citation.]”
“ ‘ “[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” ’ [Citations.] ‘ “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” ’ [Citations.]” (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.)
The Demurrer challenges all of the causes of action contained in Cross-Complainant’s (Liza Dulaney) Cross-Complaint, filed on 6-27-22 under ROA No. 15, pursuant to Code of Civil Procedure section 430.10, subdivisions (a), (d), and (e) (Demurrer; 5:1-12.) The Demurrer challenges the second, third, fifth, and seventh causes of action in the Cross-Complaint pursuant to Code of Civil Procedure section 430.10, subdivision (f).
First Cause of Action (Declaratory Relief):
Code of Civil Procedure section 430.10 states in part, “The party against whom a . . . cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: [¶] (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading. . . .” Lefebvre Southern California Edison (2016) 244 Cal.App.4th 143, 151-152 (Lefebvre), states, “ ‘Subject matter jurisdiction is a fundamental requirement for judicial consideration of claims.’ [Citation.] ‘ “The principle of ‘subject matter jurisdiction’ relates to the inherent authority of the court involved to deal with the case or matter before it.” [Citation.] Thus, in the absence of subject matter jurisdiction, a trial court has no power “to hear or determine [the] case.” [Citation.] And any judgment or order rendered by a court lacking subject matter jurisdiction is “void on its face. . . .” [Citation.]’ [Citation.] For these reasons, ‘an alleged lack of subject matter jurisdiction must be addressed whenever it comes to a court's attention.’ [Citation.] Moreover, it ordinarily is addressed as a threshold matter, as its absence deprives the court of authority to adjudicate the merits of the dispute. [Citations.]”
The Demurrer states, “All name Nancy Grace Creasy as the Trustee of the Ann R. Jacobs Trust, and concern acts taken by a trustee pursuant to her legal capacity as a trustee, and while administering the Trust, and are therefore covered under the California Probate Code, and therefor must fall under the jurisdiction of the probate court.” (Demurrer; 7:10-14; Emphasis in Demurrer.)
Probate Code section 17000 states, “(a) The superior court having jurisdiction over the trust pursuant to this part has exclusive jurisdiction of proceedings concerning the internal affairs of trusts. [¶] (b) The superior court having jurisdiction over the trust pursuant to this part has concurrent jurisdiction of the following: [¶] (1) Actions and proceedings to determine the existence of trusts. [¶] (2) Actions and proceedings by or against creditors or debtors of trusts. [¶] (3) Other actions and proceedings involving trustees and third persons.” Saks v. Damon Raike and Company (1992) 7 Cal.App.4th 419, 429 (Saks), explains, “The Probate Code also establishes various procedures that trust beneficiaries may invoke to remedy a breach of trust. Although the remedies for breach of trust are not limited to those enumerated, Probate Code section 16421 states that ‘[t]he remedies of a beneficiary against the trustee are exclusively in equity.’ Moreover, the Probate Code specifically provides that ‘[t]he superior court having jurisdiction over the trust . . . has exclusive jurisdiction of proceedings concerning the internal affairs of trusts.’ (Prob. Code, § 17000, subd. (a).) In addition, the same court that has exclusive jurisdiction over the trust pursuant to this provision also has concurrent jurisdiction over actions and proceedings to determine the existence of trusts; actions and proceedings by or against creditors or debtors of trusts; and ‘[o]ther actions and proceedings involving trustees and third persons.’ (Prob. Code, § 17000, subd. (b).) The Law Revision Commission Comment to this section states that ‘[i]t is intended that the department of the superior court that customarily deals with probate matters will exercise the exclusive jurisdiction relating to internal trust affairs provided by subdivision (a).’ (See Cal. Law Revision Com. com., 54A West's Ann. Prob. Code (1991 ed.) § 17000, p. 182.) Section 17001 of the Probate Code makes clear that the court with exclusive probate jurisdiction ‘is a court of general jurisdiction and has all the powers of the superior court.’ In sum, the provisions of the Probate Code control the parties and the subject matter of Saks and King's litigation by setting forth the applicable remedies and the proceedings to be followed. Under these provisions, the probate department has exclusive jurisdiction over proceedings involving the internal affairs of the Trust.” (Footnote 7 omitted.)
Galdjie v. Darwish (2003) 113 Cal.App.4th 1331, 1348 (Galdjie), provides, “ ‘If a contract or tort creditor is not paid, the creditor has historically been faced with the problem of determining whom to pursue and on what theory. Under traditional rules, a contract creditor could sue the trustee as an individual in an action at law, but the creditor could not resort to trust property for the satisfaction of the claim unless the contract so provided. Equity came to the rescue of creditors in situations where it was impossible or extremely difficult to collect against the trustee by permitting recovery by way of a creditor's suit out of trust assets in the amount of the trustee's right to indemnity. In many jurisdictions, the necessity of relying on an equitable action was eliminated by statutes permitting suit against the trustee in a representative capacity, or directly against the trust, resulting in collection against trust assets. [¶] The third person should not have to be concerned with source of the fund that will be used to pay the claim. The proposed law adopts this position. Hence, a third person with a claim against the trust or trustee may assert the claim against the trust by bringing an action against the trustee in the trustee's representative capacity. The question of ultimate liability as between the trust estate and the trustee may then be determined in the proceedings concerning the internal affairs of the trust or may be settled informally among the parties to the trust. The proposed law thus continues the substance of existing law on reimbursement, but not the procedural rules of the common law that limited the right of creditors to pursue the trustee in a representative capacity.’ [Citation.]” (Footnote 5 omitted.)
As to the first cause of action, the Cross-Complaint pleads, “Dulaney asserts that the vehicle was intended to be gifted to her as [sic] gesture of her appreciation for her faithful caregiving services and needed companionship. Ms. Jacobs never intended the Equinox to be part of her trust to be sold, and proceeds disbursed and divided among her beneficiaries.” (Cross-Complaint, ¶ 15.) The Cross-Complaint seeks a judicial confirmation of ownership of the EQUINOX to be the property of cross-complaint [sic], LIZA DULANEY.” (Cross-Complaint; 13:5-10.) The first cause of action describes a dispute as to whether the trust or Cross-Complainant owns the vehicle. Since the ownership issue of the vehicle is a dispute between Cross-Complainant and Cross-Defendant in her capacity as trustee, the Probate Court has jurisdiction over the first cause of action. Therefore, the court SUSTAINS the Demurrer to the first cause of action pursuant to Code of Civil Procedure section 430.10, subdivision (a).
The court does not address the merits of the Demurrer under Code of Civil Procedure section 430.10, subdivisions (d) and (e) as to the first cause of action because the court has SUSTAINED the Demurrer to the first cause of action pursuant to Code of Civil Procedure section 430.10, subdivision (a).
Second Cause of Action (Enforcement of Oral Contract):
As to the second cause of action, paragraph 21 of the Cross-Complaint alleges, “Prior to and at the time of Dulaney’s direct employment with Ms. Jacobs, they entered into an oral agreement that if Dulaey [sic] were to permanently stay as Ms. Jacobs till her death, her employer would set up a retirement fund to compensate for the below-the wage salary she was and would be receiving as Ms. Jacobs’ caregiver.” The second cause of action pertains to a debt that Ms. Jacobs (Decedent) allegedly owes to Cross-Complainant based on an alleged contract before Decedent passed. This debt is a claim upon the assets of the trust. Since this claim occurred before Decedent’s passing, the Probate Court has jurisdiction over the second cause of action as claim by a creditor. Therefore, the court SUSTAINS the Demurrer to the second cause of action pursuant to Code of Civil Procedure section 430.10, subdivision (a).
The court does not address the merits of the Demurrer under Code of Civil Procedure section 430.10, subdivisions (d) and (e), as to the second cause of action because the court has SUSTAINED the Demurrer to the second cause of action pursuant to Code of Civil Procedure section 430.10, subdivision (a).
Third Cause of Action (Enforcement of Overtime Wages under Domestic Workers Bill of Rights):
As to the third cause of action, “On the promise by Ms. Jacobs that she would set up a retirement fund for her, she waived and did not contest the non-payment of overtime pay after 45 hours of work in a week.” (Cross-Complaint, ¶ 39.) The third cause of action pertains to a debt that Decedent allegedly owes to Cross-Complainant based on Domestic Workers Bill of Rights. This debt occurred before Decedent passed. This debt is a claim upon the assets of the trust. Since this claim occurred before Decedent’s passing, the Probate Court has jurisdiction over the second cause of action as claim by a creditor. Therefore, the court SUSTAINS the Demurrer to the third cause of action pursuant to Code of Civil Procedure section 430.10, subdivision (a).
The court does not address the merits of the Demurrer under Code of Civil Procedure section 430.10, subdivisions (d) and (e), as to the third cause of action because the court has SUSTAINED the Demurrer to the third cause of action pursuant to Code of Civil Procedure section 430.10, subdivision (a).
Fourth Cause of Action (Civil Extortion):
As to the fourth cause of action for Civil Extortion (Cross-Complaint, ¶¶ 41-50), Haskett v. Villas at Desert Falls (2001) 90 Cal.App.4th 864, 877-878 (Haskett), explains, “A trustee thus cannot be held personally liable under section 18001 for any obligation arising from his ownership or control of trust property, nor can he be held personally liable under section 18002 for any torts committed in the course of his administration of the trust, unless the party seeking to impose such personal liability on the trustee demonstrates that the trustee intentionally or negligently acted or failed to act in a manner that establishes personal fault. [Citations.]” (Italics in Haskett.) The fourth cause action pertains to Cross-Defendant’s alleged intentional tort that occurred after Decedent passed. The fourth cause of action is an intentional tort, and Haskett allows Cross-Complainant to impose personal liability upon Cross-Defendant for this type of conduct. Since the fourth cause of action is not a claim on trust assets, the court OVERRULES the Demurrer to the extent it relies on Code of Civil Procedure section 430.10, subdivisions (a) and (d), because the court has jurisdiction and Cross-Defendant is a proper party to this cause of action.
Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 426 (Fuhrman) [disapproved on other grounds in Silberg v. Anderson (1990) 50 Cal.3d 205, 219], states, “In their demurrers, defendants contend ‘extortion’ is only a crime and cannot form the basis for a civil action in tort. We disagree. However denominated (e.g., extortion, menace, duress), our Supreme Court has recognized a cause of action for the recovery of money obtained by the wrongful threat of criminal or civil prosecution. [Citation.] It is essentially a cause of action for moneys obtained by duress, a form of fraud. [Citation.]” Cooper v. Cooper (2011) 197 Cal.App.4th 357, 386-387 (Cooper), provides, “Penal Code section 518 defines extortion and section 524 proscribes attempted extortion. As pertinent here, the elements of attempted extortion are (1) a specific intent to commit extortion—i.e., to obtain property from another, with his or her consent, induced by a wrongful use of fear; and (2) a direct but ineffectual act done towards its commission. [Citations.] ‘Fear, such as will constitute extortion, may be induced by a threat, either: [¶] 1. To do an unlawful injury to the person or property of the individual threatened or of a third person; or, [¶] 2. To accuse the individual threatened, or any relative of his, or member of his family, of any crime; or, [¶] 3. To expose, or to impute to him or them any deformity, disgrace or crime; or, [¶] 4. To expose any secret affecting him or them.’ [Citation.]” (Italics in Cooper.)
Here, at a minimum, paragraphs 43-48 adequately allege a cause of action for attempted civil extortion because they plead an attempt to obtain property from another by the wrongful use of fear. Therefore, the court OVERRULES the Demurrer as to the fourth cause of action to the extent it is based on Code of Civil Procedure section 430.10, subdivision (e).
Fifth Cause of Action (Intentional Infliction of Emotional Distress):
CACI No. 1600 sets for the elements necessary to establish a cause of action for IIED. “A cause of action for intentional infliction of emotional distress exists when there is ‘ “ ‘ “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” ’ ” ’ [Citations.] A defendant's conduct is ‘outrageous’ when it is so ‘ “ ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ ” ’ [Citation.] And the defendant’s conduct must be ‘ “ ‘intended to inflict injury or engaged in with the realization that injury will result.’ ” ’ [Citation.]” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050–1051 (Hughes).” “If properly pled, a claim of sexual harassment can establish ‘the outrageous behavior element of a cause of action for intentional infliction of emotional distress.’ [Citation.]” (Id., at p. 1051.) “ ‘Severe emotional distress means “ ‘emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.’ ” ’ [Citation.]” (Ibid.; See also, CACI No. 1604). CACI No. 1602 states in part, “ ‘Outrageous conduct’ is conduct so extreme that it goes beyond all possible bounds of decency. Conduct is outrageous if a reasonable person would regard the conduct as intolerable in a civilized community. Outrageous conduct does not include trivialities such as indignities, annoyances, hurt feelings, or bad manners that a reasonable person is expected to endure.”
As to the fifth cause of action (Cross-Complaint, ¶¶ 51-56), Haskett v. Villas at Desert Falls (2001) 90 Cal.App.4th 864, 877-878 (Haskett), explains, “A trustee thus cannot be held personally liable under section 18001 for any obligation arising from his ownership or control of trust property, nor can he be held personally liable under section 18002 for any torts committed in the course of his administration of the trust, unless the party seeking to impose such personal liability on the trustee demonstrates that the trustee intentionally or negligently acted or failed to act in a manner that establishes personal fault. [Citations.]” (Italics in Haskett.) The fifth cause action pertains to Cross-Defendant’s alleged intentional tort that occurred after Decedent passed. The fifth cause of action is an intentional tort, and Haskett allows Cross-Complainant to impose personal liability upon Cross-Defendant for this type of conduct. Since the fifth cause of action is not a claim on trust assets, the court OVERRULES the Demurrer to the extent it relies on Code of Civil Procedure section 430.10, subdivisions (a) and (d), because the court has jurisdiction and Cross-Defendant is a proper party to this cause of action.
The court finds that the Cross-Complaint sufficiently pleads the fifth cause of action. For example, the Cross-Complaint alleges that Cross-Defendant “. . . intentionally prevented and deprived her of the her possession of the ashes of her late husband . . .,” and “. . . she had been repeatedly subjected to civil extortion and placed in imminent fear of imprisonment and deportation for crimes she never committed . . . .” (Cross-Complaint, ¶¶ 52 and 53.) The alleged withholding of ashes and civil extortion are sufficient to plead outrageous conduct and severe emotional distress. (Cross-Complaint, ¶¶ 51-56.) Therefore, the court OVERRULES the Demurrer as to the fifth cause of action to the extent it is based on Code of Civil Procedure section 430.10, subdivision (e).
Sixth Cause of Action (Negligent Infliction of Emotional Distress):
Levy v. Only Cremations for Pets, Inc. (2020) 57 Cal.App.5th 203, 217 (Levy), states, “ ‘ “[T]he 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. [¶] Whether a defendant owes a duty of care is a question of law. Its existence depends upon the foreseeability of the risk and a weighing of policy considerations for and against imposition of liability.” ’ [Citation.] ‘The law in California imposes a duty to avoid causing emotional distress in two general instances”: (1) ‘ “bystander” ’ situations wherein a plaintiff seeks to recover damages as a witness to the injury of another [citation]; and (2) ‘ “direct victim” ’ situations wherein the emotional distress damages result from a duty owed the plaintiff that is assumed by the defendant as a matter of law, or that arises out of a special relationship between the plaintiff and the defendant. [Citation.]” (Italics in Levy)
As to the sixth cause of action (Cross-Complaint, ¶¶ 57-59), Haskett v. Villas at Desert Falls (2001) 90 Cal.App.4th 864, 877-878 (Haskett), explains, “A trustee thus cannot be held personally liable under section 18001 for any obligation arising from his ownership or control of trust property, nor can he be held personally liable under section 18002 for any torts committed in the course of his administration of the trust, unless the party seeking to impose such personal liability on the trustee demonstrates that the trustee intentionally or negligently acted or failed to act in a manner that establishes personal fault. [Citations.]” (Italics in Haskett.) The sixth cause action pertains to Cross-Defendant’s alleged negligence that occurred after Decedent passed. The sixth cause of action is a tort based on negligence and is not a claim on trust assets. Haskett allows Cross-Complainant to impose personal liability upon Cross-Defendant for this type of conduct. Since the sixth cause of action is not a claim on trust assets, the court OVERRULES the Demurrer to the extent it relies on Code of Civil Procedure section 430.10, subdivisions (a) and (d), because the court has jurisdiction and Cross-Defendant is a proper party to this cause of action.
The court SUSTAINS the Demurrer under Code of Civil Procedure section 430.10, subdivision (e), because it does not sufficiently plead facts supporting negligence under a bystander theory or a duty under a direct victim theory.
Seventh Cause of Action (Replevin):
Foster v. Sexton (2021) 61 Cal.App.5th 998, 1020 (Foster), provides, “The common-law writ of replevin is the equivalent of the ‘action for the recovery of specific personal property’ referred to in Code of Civil Procedure section 667. [Citation.] ‘In actions for specific recovery, whether in the nature of replevin or detinue, if the property cannot be recovered, judgment may be given for its value, and it is customary to pray for that alternative relief.’ [Citation.] Under current California law, the common law forms of action named replevin, detinue and trover are addressed by the tort of conversion of tangible personal property. [Citation.] The tort of conversion is committed by the defendant's ‘ “wrongful exercise of dominion over personal property of another.” ’ [Citation.]”
Paragraph 61 of the Cross-Complaint pleads, “Plaintiff, without due notice and without providing Defendant reasonable opportunity to retrieve her personal belongings, especially the cremated ashes of her late husband, barred Dulaney from entering the Jacobs residence; and had wrongfully taken possession of defendant’s personal property, i.e. the cremated ashes of her late husband. . . .”
As to the seventh cause of action (Cross-Complaint, ¶¶ 60-61), Haskett v. Villas at Desert Falls (2001) 90 Cal.App.4th 864, 877-878 (Haskett), explains, “A trustee thus cannot be held personally liable under section 18001 for any obligation arising from his ownership or control of trust property, nor can he be held personally liable under section 18002 for any torts committed in the course of his administration of the trust, unless the party seeking to impose such personal liability on the trustee demonstrates that the trustee intentionally or negligently acted or failed to act in a manner that establishes personal fault. [Citations.]” (Italics in Haskett.) The seventh cause action pertains to Cross-Defendant’s alleged conduct that occurred after Decedent passed. The seventh cause of action is alleged as an intentional act regarding property that did not belong to the trust (the cremated ashes), and Haskett allows Cross-Complainant to impose personal liability upon Cross-Defendant for this type of conduct. Since the seventh cause of action is not a claim on trust assets, the court OVERRULES the Demurrer to the extent it relies on Code of Civil Procedure section 430.10, subdivisions (a) and (d), because the court has jurisdiction and Cross-Defendant is a proper party to this cause of action.
The Cross-Complaint adequately pleads a cause of action for the recovery of specific personal property (the cremated ashes.) Thus, the court OVERRULES the Demurrer to the extent it relies on Code of Civil Procedure section 430.10, subdivision (e).
To the extent that the Demurrer relies on Code of Civil Procedure section 430.10, subdivision (f), the court OVERRULES the Demurrer because it is not so uncertain as to prevent Cross-Defendant from providing an informed response. (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.)
Based on the above, the court SUSTAINS Cross-Defendant’s (Nancy Grace Creasy) General and Special Demurrer and Demurrers to Cross Complaint of Liza Dulaney CCP 430.10(a), (d), (e) & (f), filed on 7-25-22 under ROA No. 24, as to the first, second, third, and sixth causes of action with 15-days leave to amend from the date of service of the notice of the court’s ruling. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747.) The court OVERRULES the Demurrer as to the fourth, fifth, and seventh causes of action.
Cross-Defendant is to give notice.