Demurrer

Cal. Super. - 6th Dist.June 3, 2019

Electronically Filed by Superior Court of CA, County of Santa Clara, on 8/22/2019 2:04 PM Reviewed By: M Vu Case #19CV349108 Envelope: 3298581 \OOOQONUI#UJI\J 10 11 12 13 14 15 16' 17 18 19 20 21 22 23 24. 25 26 27 28 MATTHEW A. CROSBY, CSB #070524 MICHAEL C. CROSBY, CSB #277849 CROSBY & CROSBY, - A PROFESSIONAL LAW CORPORATION 1570 The Alameda, Suite 200 San Jose, CA 95126 e-mail: matt@crosbyplc.com Telephone: 408-370-7500 Facsimile: 408-984-5063 Attorneys for Defendant ADAM WEISKAL, Trustee IN THE SUPERIOR COURT OF THE STATE OF CALIFORNM IN AND FOR THE COUNTY OF SANTA CLARA VISTA VERDE HOME HEALTH, LLC, CASE NO. 19CV349108 Plaintiff, NOTICE OF HEARING ON DEMURRER AND DEMURRER - OF DEFENDANT TRUSTEE ADAM WEISKAL T0 COMPLAINT 0F PLAINTIFF VISTA VERDE HOME HEALTH, LLC [CCP §430.10(e)] VS. ADAM WEISKAL as Trustee ofthe Ohannes ' H. Atanian Trust, The Kimberly Atanian Special Needs Trust, and The Mark Atanian Special Needs Trust; and DOES 1 to 10, Defendants. Hearing Date: December 12, 2019 Hearing Time: 9:00 a.m. Dept. No.: 9 Judge: Hon. Mary Arand Date Action Filed: June 3, 2019 [Accompanying Documents: Memorandum of ‘ ' Points & Authorities; and Declaration ofAttorney Michael Crosby] vvvvvvvvvvvvvvvvvvvvv TO EACH PARTY AND THE ATTORNEY OF RECORD FOR EACH PARTY: ‘ YOUARE HEREBYNOTIFIED that on December 12, 20 1 9, or as soon thereafter as the matter may be heard, before the Hon. Mary Arand in Department 9 of the above-entitled Court, located at 191 North First Street, San Jose, CA 951 13, defendant, ADAM WEISKAL; in his capacities as: (i) Trustee of the Ohannes H. Atanian Trust; (ii) Trustee of The Kimberly Atanian Special Needs Trust; and (iii) Trustee ofthe Mark Atanian SpecialNeeds Trust (“WEISKAL” and/or NOTICE OF HEARING ON DEMURRER & DEMURRER OF DEF TRUSTEE WEISKAL TO COMPLAINT PAGE 1 .5 \OOONQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “‘TRUSTEE”), pursuant to Code of Civil Procedure §430.10(e), Will and hereby does demur to the Contract - Complaint filed herein on June 3, 2019 (the “Complaint”), by plaintiff, VISTAVERDE HOME HEALTH, LLC (“VISTA”). DEMURRER This general demurrer Will be made on the following ground: Demurrer to Complaint - Fafilure t0 File a Creditor’s Claim 1. Pursuant to Code ofCivil Procedure §430. 1 O(e), the causes ofaction set forth in VISTA’S Complaint, i_.e_., breach of contract and common counts, fail to state facts sufficient to constitute any cause of action against TRUSTEE because the Complaint fails to state that VISTA filed and served a creditor’s claim against the estate of the decedent as provided as provided in Probate Code §§9000, et seq. An action on a contract with a decedent is barred Where n0 creditor’s claim has been filed and served against the estate of the decedent. See, gg, Probate Co‘de §§9000(a)(1) and 9002; and see Wilfison V. Wiederkehr (2002) 101 Ca1.App.4th 822, 833-834. Additional Matters Incorporated bv Reference TRUSTEE incorporates herein by this reference his memorandum of points and authorities in support of his demurrer, which more fully sets forth his grounds for the demurrer. Accompanving Documents This demurrer Will be basedupon this notice ofhearing, TRUSTEE” s demurrer to the Complaint, the accompanying memorandum 0f points and authorities, the meet and confer declaration of attorney Michael C. Crosby, any facts and records Which may be judicially noficed, and 0n such evidence and arguments as may be presented at the hearing. Request for Relief . WHEREFORE, TRUSTEE moves for an order of this Court sustaining his general demurrer to the Complaint Without leave to amend. Dated: August 13, 2019 CROSBY & CROSBY, A PROFES ION LAW CORPORATION By: ‘ MICHAEL C. CROSBY,- Attomey for Defendant Trustee Demurrer-Notice&Demurrer.wpd ADAM WEISKAL ' NOTICE OF HEARING ON DEMURRER & DEMURRER OF DEF TRUSTEE WEISKAL TO COMPLAINT PAGE 2 H xoqoqovamN HHr-Ir-Ir-At-Ip-Ir-Iv-I ooflmUI-PwNF-‘O N N [\J [\J N N [\J [\J N OO fl ON Ul h DJ N '-‘ O _ H . \O PROOF 0F SERVICE BY U.S. MAJL SHAUNA PEPITONE declares: I am over the age of 18 years and not a party to this action. My business address is Crosby & Crosby, A Professional Law Corporation, 1570 The Alameda, Suite 200, San Jose, CA 95 126. On August 13 , 20 1 9, I served the following document(s) in Santa Clara County Superior Court Case No. 19CV349108: NOTICE OF HEARING ON DEMURRER AND DEMURRER OF DEFENDANT TRUSTEE ADAM WEISKAL TO COWLAWT OF PLAINTIFF VISTA VERDE HOME HEALTH, LLC (dated August 13, 2019); MEMORANDUMOFPOINTSANDAUTHORITIES INSUPPORT OFDEMURRER OFDEFENDANT TRUSTEEADAMWEISKAL TO COMPLAINT OF PLAINTIFF VISTA VERDE HOME HEALTH, LLC (dated August 13, 2019); and DECLARATION OF ATTORNEY MICHAEL C. CROSBY RE CONIPLIANCE WITH NIEET AND CONFER REQUIREMENT (dated August 13, 2019). on all other parties and/or their attorney(s) ofrecord in this action and on all interested persons by placing a true copy thereof in a sealed envelope addressed as follows: Philip E. Yeager, Esq. Adam Weiskal, Trustee . Craig A. Hansen, Esq. (Defendant, Represented By Crosby & Crosby, Hansen Law Firm, P.C. APLC) 75 E. Santa Clara St, Suite 1250 [Via email only] San Jose, CA 951 l3 (Attorney For Plaintifif Vista Verde Home Health, LLC) [and Via email to: phil@hansenlawfirm.net] E BY MAIL. I served the documents by enclosing them 1n a sealed envelope 0r package addressed t0 the persons at the addresses set forth above, and deposited the sealed envelope with the United States Postal Service, with the postage fully prepaid. I am employed m the county Where the mailing occurred. The envelope or package was placed 1n the mail at San Jose, California. I declare under penalty ofpexjury under the laws ofthe State ofCalifornia that the foregoing is true and cOrrect. Executed on August 13, 2019, at San Jose, California. ProofofServiccByMail-SP-OS 13 19.wpd Kmm/W/ SH7AUNA PEPITONE ; \ PROOF OF SERVICE BY U.S. MAIL