Memorandum Points and AuthoritiesCal. Super. - 6th Dist.January 29, 2021UI-bUJN \OOOQON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 CV376879 Santa Clara - Civil Craig A. Hansen (SBN 209622) Email: craig@hansenlawfirm.net Philip E. Yeager (SBN 265939) Email: phinghansenlawfirmnet HANSEN LAW FIRM, P.C. 75 E. Santa Clara Street, Suite 1250 San Jose, CA 95 1 13 Telephone: (408) 715-7980 Facsimile: (408) 715-7001 Attorneys for Defendants JOSEPH S. LACOB; JEAN LACOB, Personal Representative of the Estate of David B. Lacob P. Hernan Electronically Filed by Superior Court of CA, County of Santa Clara, on 3/1/2022 4:53 PM Reviewed By: P. Hernandez Case #21 CV376879 Envelope: 8404549 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA Verenice Torres, Plaintiff V. Personal Representative 0r Putative Administrator 0f the Estate of Sidney H. Lacob, Joseph S. Lacob, Jean Kilburn aka Jean Lacob, Personal Representative of the Estate 0f David B. Lacob and DOES 1-25, et a1 Defendants. Case N0. 21CV376879 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFF’S VERIFIED AMENDED COMPLAINT DATE: TIME: DEPT.: 1 9 dez MPA in Support of Demurrer t0 Verified Amended Complaint Case Number: 2 1 CV376879 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS I. INTRODUCTION .................................................................................................................... 1 II. MEET AND CONFER ............................................................................................................. 3 III. LEGAL ARGUMENTS ........................................................................................................... 3 A. Non-Existent Personal Representatives of an Estate Cannot be Named as Defendants ...... 3 B. The Required Pre-Lawsuit Claim Procedures Have Not Been Followed as to David Lacob’s Estate and Sidney Lacob’s Estate .................................................................................. 4 C. A Civil Complaint is an Improper Method for Plaintiff t0 Petition t0 Administer the Sidney Lacob Estate .................................................................................................................... 5 D. The Fraudulent Inducement Claim is Subj ect t0 Demurrer ............................................... 6 E. The Fraud and Conspiracy Claims Against the Decadent, Joseph Lacob and David Lacob’s Estate are Subject t0 Demurrer ...................................................................................... 7 F. The “Detrimental Reliance” (Promissory Estoppel) Claim is Subject t0 Demurrer ......... 8 G. Plaintiff s Claim 0fUndue Influence is Also Subject t0 Demurrer for ............................. 8 H. Plaintiff Claim of “Interference with Contract” (Intentional Interference with Contractual Relations) is Also Subj ect t0 Demurrer ................................................................... 9 I. Plaintiff Unjust Enrichment (Restitution) Claim Against Joseph Lacob and the Estate of David Lacob is subject t0 Demurrer .......................................................................................... 10 J. Plaintiff Seventh Cause 0f Action for Intentional Infliction 0f Emotional Distress and Negligent Infliction of Emotional Distress are Subj ect to Demurrer Without Leave to Amend 11 K. Plaintiff Ninth Cause of Action for the Establishment 0f a Constructive Trust is Subject t0 Demurrer Without Leave to Amend ....................................................................................... 13 IV. CONCLUSION ........................................................................................................................ 14 MPA in Support of Demurrer to Verified ii. Case Number: 21CV376879 Amended Complaint 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Cases AQ Consulting WLL v. Branca, 2011 WL 240812, *2 (SD NY 201 1) ............................................ 5 Blank v. Kirwan, 39 Cal.3d 31 1, 318 (1985) ................................................................................... 2 Bright’s Estate v. Western Air Lines, 104 Cal. App. 2d 827, 829 (1951) ........................................ 4 Davis v. Nadrich, 174, Cal. App. 4th 1, 9, 94 (2009) ..................................................................... 10 Dobler v. Arluk Medical Center Industrial Group, Ina, 89 Cal. App. 4th 530, 536 (2001) ............ 2 Estate ofBloom, 107 Cal. App. 3d 195, 202 (1980) .................................................................... 2, 4 Estate ofMolera 23, Cal. App. 3d 993, 1001 (1972) ....................................................................... 9 Estate ofSanders, 40 Cal. 3d 607, 616-617 (1985) ....................................................................... 13 Flintco Pacific Inc. v. TEC Management Consultants, Inc. 1 Cal. App. 5th 727, 734 (2016) ......... 8 Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Ina, 129 Cal App. 4th 1228 (2005) ................................................................................................................................ 12 In re Muller’s Estate, 14 Cal. App. 2d 129, 130 (1936); In re: Estate ofMorcel, 162 Cal. 188 (1912) ........................................................................................................................................... 9 Kidron v. Movie Acquisition Corp, 4O Cal. App. 4th 1571 (1995) .................................................. 7 Lazar v. Estate ofLazar, 208 Cal. App. 2d 554 (1962) ................................................................... 4 McBride v. Boughton, 123 Cal. App. 4th 379, 388 (2004) ............................................................. 11 Philpott v. Superior Court, 1 C.2d 512, 517 (1934) ...................................................................... 11 Quelimane C0. v. Stewart Title Guar. C0., 19 Cal. 4th 26, 55 (1998); Asahi Kasei Pharma Corp. v. Actelion Ltd, 222 Cal. App. 4th 945, 958 (2013) ....................................................................... 10 Small v. Fritz Companies, Ina, 30 Cal. 4th 167, 184 (2003) ............................................................ 7 Trerice v. Blue Cross ofCalifornia, 209 Cal.App.3d 878, 883 (1989) .......................................... 12 West v. JPMorgan Chase Bank N.A., 214 Cal.App. 4th 780, 792 (2013) ..................................... 6, 7 Wilkinson v. Wiederkehr, 101 Cal. App. 4th 822, 833 (2002); Chahon v. Schneider, 117 Cal App. 2d 334, 346 (1953) ....................................................................................................................... 5 Statutes CiV. Code §§ 2223 ......................................................................................................................... 13 CiV. Code §§ 2224 ......................................................................................................................... 13 Code CiV. Proc. § 366.2 ............................................................................................................... 2, 5 Code Civ. Proc. §§ 430.10(d) ............................................................................................. 1, 3, 4, 6 MPA in support of Demurrer to Verified iii. Case Number: 21CV376879 Amended Complaint 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Code CiV. Proc. §§ 430.10(e) ...................................................................... 3, 5, 7, 8, 10, 11, 13, 14 Code CiV. Proc. §§ 430.10(f) ................................................................................................. 1,3,6,9 Prob. Code §§ 8002, 10450 .............................................................................................................. 6 Prob. Code § 8200 ............................................................................................................................ 2 Prob. Code §§ 8400 .......................................................................................................................... 4 Prob. Code § 8462(q) ....................................................................................................................... 2 Prob. Code §§ 9000 ...................................................................................................................... 2, 5 Prob. Code §§ 9002 .......................................................................................................................... 5 Prob. Code § 9351 ............................................................................................................................ 2 Prob. Code § 9352 ............................................................................................................................ 5 Prob. Code § 9353 ............................................................................................................................ 5 Prob. Code § 9820 ............................................................................................................................ 4 Prob. Code §§ 10450 ........................................................................................................................ 6 Prob. Code §§ 13100-13115 .......................................................................................................... 13 Prob. Code § 21310(b)(4) ................................................................................................................ 9 Publications Gaab and Reese, Rutter Group Cal. Prac. Guide Civil Procedure Before Trial Claims and Defenses 3:1.1 (October 2020 Update) ...................................................................................... 10 Rutter Group Cal. Prac. Guide Probate 8:109 (2020) ...................................................................... 5 Rutter Group Cal. Prac. Guide Probate § 3:77 (2020) ..................................................................... 6 Witkin Summary of California Law, Eleventh Edition (2021), Section 1050 ............................... 11 MPA in Support of Demurrer to Amended iv. Case Number: 21CV376879 Verified Complaint 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants Joseph S. Lacob and Jean Lacob, Special Administrator 0f the Estate 0f David Lacob (“Defendants”), demur t0 the Verified Amended Complaint 0f Verenice Torres (the “Amended Complaint”). The Amended Complaint is subj ect t0 demurrer because it names defendants that d0 not exist, states causes 0f action barred by applicable statutes 0f limitation, and otherwise fails to state any cause 0f action as required by Code CiV. Proc. §§ 430. 10(d), (e), and (f)- 1. INTRODUCTION Plaintiff Verenice Torres (“Plaintiff”) was a paid caregiver for the late Sidney Lacob (“Sidney” 0r “Decedent”)1 who died July 26, 2020.2 Sidney Lacob was survived by two sons: Defendant Joseph S. Lacob (“Joseph”) and the late David B. Lacob (“David”) who subsequently died 0n September 3, 2020.3 No Petition to Administer the Estate 0f Sidney Lacob was ever filed.4 Plaintiff alleges that a will allegedly signed by Sidney on June 30, 2016 left Plaintiff 50%, Sidney 25%, and David 25% 0f Sidney’s residuary estates Plaintiff further alleges that Joseph Lacob is a “named 0r putative” executor 0f Sidney’s Estate.6 Plaintiffnow brings suit claiming that she provided caregiver services at a “significantly reduced rate 0f compensation” having relied 0n “Sidney’s promise to will her approximately $500,000.00 as the basis for her continued work at a reduced rate?” She also claims that Sidney, Jacob, and David, engaged in a scheme t0 defraud Plaintiff 0f this promised inheritance through Sidney’s execution of forms, on June 27, 2016 and July 27, 2016, for Sidney’s IRA accounts which made Joseph and David the sole beneficiary 0f those accounts.8 Finally, plaintiff also alleges that “[r]equisite information, cooperation, and explanation, along with the legal administration 0f Sidney’s estate have all been withheld by Defendants. . .”9 1 Due to the similarities between the names of the decedent and the parties, first names are used. No disrespect is intended. 2 See Amended Complaint 2:4-5 3 See Request for Judicial Notice Exhibit 1 - May 5, 2021 Order for Probate 1] 2(b) 4 See Amended Complaint at 2029-10 5 Id. at 2:14, 3:1-7; 3:15-19 6 Id. at 238-9, 12:15-18 7 Id. at 7:22-25 8 Id. at 6:15-22 9 Id. at 729-10 MPA in Support of Demurrer to Verified 1 Case Number: 21CV376879 Amended Complaint 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Even setting aside the blatant falsity 0f plaintiff’s allegations (which are vigorously disputed) and even assuming those allegations t0 be true (Which this Court must do for purpose 0f this demurrer)” the Amended Complaint remains procedurally and substantively defective and subj ect t0 demurrer. First, any allegation against Sidney’s Estate is time-barred because: (a) no Estate was ever opened; and (b) the requisite creditor’s claim against Sidney’s Estate was not filed by July 26, 2021 - one year from the date Sidney’s death - as required by Code CiV. Proc. § 366.2 and Prob. Code §§ 9000 et. seq. Contrary to the allegations in the Amended Complaint, it is longstanding law in California that named executors in wills are under no obligation t0 administer the estates. 11 Any attempt by Plaintiff t0 use a civil complaint t0 force such administration is improper and without legal basis. Moreover, Plaintiff, as an alleged creditor, had the ability under Prob. Code § 8462(q) t0 petition t0 administer Sidney’s Estate and to timely file a claim, but she failed to do so. So plaintiff’s purported claims against the Estate 0f Sidney Lacob and its claimed representatives (ofwhich none exist) are defective and time-barred. Second, Plaintiff has not followed the proper procedures required by the Probate Code to sue Jean Lacob as the Executor of the Estate of David Lacob. Prob. Code § 9351 prohibits an “action” from being commenced against a decedent’s personal represented “unless a claim is first filed. . .and the claim is rejected in whole 0r in part.” This is a “condition precedent to filing an action against a decedent’s estate.”12 In this case, Plaintiff filed her initial verified complaint on January 29, 2021, which contains the same causes of action as the Amended Complaint.” But she did not file her creditor’s claim in the Estate 0f David Lacob until July 26, 202114 - almost six months after the lawsuit was filed. As an amended complaint does not “commence” an action as described in Prob. Code § 9351, Plaintiff’s Amended Complaint remains subj ect to the fatal procedural defect of her initial verified complaint- it was filed before a creditor’s claim was 1° See Blank v. Kirwan, 39 Ca|.3d 311, 318 (1985) 11 See Estate ofB/oom, 107 Cal. App. 3d 195, 202 (1980); Prob. Code § 8200 12 See Dobler v. Arluk Medical Center Industrial Group, Inc., 89 Cal. App. 4th 530, 536 (2001) 13 See Decl. of Philip Yeager 1] 1 Exhibit A - Plaintiff’s Verified Complaint 14 See Request for Judicial Notice Exhibit 2 - Plaintiff’s July 26, 2021 Creditor’s Claim MPA in Support of Demurrer to Amended 2 Case Number: 21CV376879 Verified Complaint 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 filed and rejected. Third, even if the procedural problems as to the Estate 0f David Lacob and Jean Lacob in her capacity as Personal Representative could be overcome, the substantive causes of action are not adequately pleaded to constitute a cause 0f action as required by Code CiV. Proc. §430.10(e). For example, among other causes 0f action as described herein, the fraud allegations do not meet California’s heightened pleading standards, undue influence is not properly pleaded, the conduct described does not warrant emotional distress as pleaded, and the refusal to probate a Will does not justify the establishment of a constructive trust. For these fatal defects, the Court should sustain the demurrer t0 the Amended Complaint without leave t0 amend. II. MEET AND CONFER Defendants’ counsel sent Plaintiff’s counsel a meet and confer letter regarding the defects in the original verified complaint 0n July 27, 2021, t0 which Defendants’ counsel responded 0n August 2, 2021.15 On December 23, 2021, Defendants’ counsel sent another meet and confer letter regarding the subsequently filed Amended Complaint t0 Plaintiff’s counsel.“ Plaintiff’s counsel and Defendants’ counsel also engaged in a telephonic meet and confer on January 7, 2022, but were unsuccessful in resolving the objections raised in this demurrer.” III. LEGAL ARGUMENTS Defendants demur t0 the Amended Complaint based on Code 0f Civil Procedure § 430. 10(d), (e), and (f). Specifically, the causes 0f action in the Amended Complaint (1) list parties that don’t exist in Violation of § 430.10(d); (2) assert causes of action either barred by a statute of limitation 0r not adequately pleaded under §430.10(e); and/or (3) plead causes 0f action that are ambiguous 0r unintelligible under 430. 10(f). A. Non-Existent Personal Representatives ofan Estate Cannot be Named as Defendants The listing 0f “Personal Representative 0r Putative Administrator 0f the Estate 0f Sidney 15 See Decl. of Philip Yeagerm] 2-5 - Exhibits B-D 16 Id. - Exhibit C 17 Id. 1] 6. MPA in Support of Demurrer to Verified 3 Case Number: 21CV376879 Amended Complaint 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 H. Lacob,18” and “Joseph S. Lacob. . .act[ing] as putative administrator 0r representative 0f the Estate 0f Sidney H. Lacob” as defendants in the Amended Complaint is improper under California law. “An estate is not a legal entity nor a natural nor artificial person. It is merely a name t0 indicate the total 0f the assets and liabilities 0f a decedent...An ‘estate’ cannot sue 0r be sued.19” Thus, a suit against an estate must be brought against the personal representative, 0n behalf of the estate,” and a complaint naming the decedent’s estate as a defendant is subj ect t0 demurrer.” In the Amended Complaint, instead 0f naming the “Estate 0f Sidney H. Lacob,” as was done in the original verified complaint,” Plaintiffnow defectively names the “Personal Representative 0r Putative Administrator 0f the Estate 0f Sidney H. Lacob” Which does not exist. Neither Joseph Lacob nor Jean Lacob, nor anyone else, have petitioned to become representatives of the Estate 0f Sidney H. Lacob. Even if either one of them did, they would not become personal representative without an order from the Probate C0urt.23 Furthermore, Defendants have been unable to locate any case law 0r statutory law regarding a “putative” representative. It appears that the Plaintiff is inartfully borrowing a term used in class-action litigation that is inapplicable in probate cases. The actual law that applies here is very clear that even named executors, which Plaintiff alleges Joseph Lacob is, are not required to open an Estate.” Therefore, any action against representative of the Estate 0f Sidney Lacob is subj ect to demurrer Without leave to amend pursuant to C.C.P. § 430.10(d), Which allows demurrers when there is a “defect 0f parties,” because the named “personal representative” defendants are not actually personal representatives of any existing estate. B. The Required Pre-Lawsuit Claim Procedures Have Not Been Followed as t0 David Lacob ’s Estate and Sidney Lacob ’s Estate Plaintiff has not complied with the required pre-lawsuit claims procedures pursuant t0 13 See Amended Complaint at 2:4-13, 15-18 19 See Bright’s Estate v. Western Air Lines, 104 Cal. App. 2d 827, 829 (1951) 2° See Prob. Code § 9820 21 See Lazar v. Estate of Lazar, 208 Cal. App. 2d 554 (1962) 22 See PEY Decl. 23 See Prob. Code §§ 8400 et. seq. 24 See Estate of Bloom, Supra MPA in Support of Demurrer to Verified 4 Case Number: 21CV376879 Amended Complaint 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Prob. Code §§ 9000 and 9002, er. seq. Specifically, “In an action at law for damages. . ., the plaintiff is a creditor and must file [her] claim against the estate of the deceased promisor or be forever barred?” Only when a claim is rejected 0r has been deemed rejected by the personal administrator may the creditor then file suit Within 90 days 0f the claim being rejected.26 Additionally, compliance with the applicable claim-filing requirements is an essential element of the cause 0f action and must be affirmatively pleaded.” Failure t0 d0 s0 is the basis for demurrer and dismissal.” While Plaintiff filed a creditor’s claim against the Estate 0f David Lacob on July 26, 2021, it was filed after the present “action” was filed - in Violation 0f Prob. Code § 9352. Thus, Plaintiff has not complied with the requisite claim procedures, s0 the action as t0 Jean Lacob, as Executor for David Lacob’s Estate, is subject t0 demurrer pursuant to Code CiV. Proc. §430.10(e). Also, as previously stated, n0 probate estate was ever opened for the Estate of Sidney Lacob. Under Code CiV. Proc. § 336.2, an action must be commenced within one year 0f the date 0f the death 0f a decedent. The prerequisite creditor’s claim t0 such an action also serves the purpose 0f tolling the statute of limitation (Code CiV. Proc. §336.2) pursuant t0 Prob. Code §9352. Thus, any action against a representative 0f Sidney Lacob’s is now time-barred as more than one year has elapsed since Sidney Lacob’s death.” C. A Civil Complaint is an Improper Methodfor Plaintiffto Petition t0 Administer the Sidney Lacob Estate The tenth cause of action in the Amended Complaint asks the Court t0 disqualify Sidney’s sons from acting as personal representative” and seeks damages “if there is n0 administration of Sidney’s Estate?“ This “cause 0f action” is wholly improper in a civil complaint. First, there presently is no petition on file by anyone t0 administer the Sidney Lacob Estate 0r t0 admit any 25 See Wilkinson v. Wiederkehr, 101 Cal. App. 4th 822, 833 (2002); Chahon v. Schneider, 117 Cal App. 2d 334, 346 (1953) 26 See Prob. Code § 9353 27 See Rutter Group Cal. Prac. Guide Probate 8:109 (2020); AQ Consulting WLL v. Branca, 2011 WL 240812, *2 (SD NY 2011) [applying California law] 28 Id. 29 See Code Civ. Proc. § 366.2; Prob. Code §§ 9000 et. seq 3° See Amended Complaint 11112 31 Id.at 11115 MPA in Support of Demurrer to Verified 5 Case Number: 21CV376879 Amended Complaint 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Will of Sidney Lacob t0 probate. Second, if an alleged creditor 0r other interested person, which Plaintiff claims to be, wishes to administer an estate and/or admit a will to probate, they must d0 so with Judicial Council Form DE-l 11 Petition for Probate.” This is a mandatory form, s0 a civil complaint for similar relief is Wholly improper.” Therefore, the tenth cause of action seeking administration 0f the Sidney Lacob’s Estate is improper, uncertain, unintelligible, and subj ect to demurrer pursuant t0 Code Civ. Proc § 430. 10(d), (e), and (f). If Plaintiff seeks t0 administer Sidney’s Estate, she must d0 so by filing the mandatory Probate Form DE-l 1 1, not through this improper civil complaint. D. The Fraudulent Inducement Claim is Subject t0 Demurrer The first cause of action in the Amended Complaint claims that Sidney Lacob fraudulently induced Plaintiff t0 provide care t0 Sidney Lacob. As previously stated, a suit against Sidney Lacob’s Estate is improper and barred by the applicable statute of limitations as n0 administrator has been appointed, n0 requisite creditor’s claim was filed, and more than a year has passed since Sidney Lacob’s death. However, even if Plaintiff had properly named an actual administrator 0f the Sidney Lacob Estate and timely complied With the perquisite claims procedure, Plaintiff has not properly pleaded fraud in compliance with California’s pleading requirements: Fraud must be pled with specificity rather than With general 0r conclusory allegations. The specificity requirement means that a plaintiff must allege facts showing how, when, Where, to whom, and by what means the representations were made. . 7’34 In the Amended Complaint, Plaintiff does not allege What specifically Sidney Lacob promised t0 induce her to keep providing him care. Plaintiff only pleaded, “Decadent used his representations regarding his Will t0 induce Plaintiff to continue to work for him at a significantly reduced rate 0f compensation?“ Plaintiff also fails t0 plead what her “reduced rate 0f compensation” was 0r what her “non-reduced rate 0f compensation” was. Finally, Plaintiff failed 32 See Rutter Group Cal. Prac. Guide Probate § 3:77 (2020); Prob. Code §§ 8002, 10450 33 ld.; Request forJudicial Notice Exhibit 3 -Judicia| Council Form DE-111 34 See West v. JPMorgan Chase Bank N.A., 214 Cal.App. 4th 780, 792 (2013) 35 See Amended Complaint 1] 37 MPA in Support of Demurrer to Verified 6 Case Number: 21CV376879 Amended Complaint 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 t0 specify when and where the representations 0f decedent were made as required by California law. Therefore, Plaintiff” fraudulent inducement action is subj ect t0 demurrer pursuant to Code CiV. Proc. § 430.10(e) Without leave t0 amend because it is untimely, procedurally improper, and not pleaded with the requisite specificity. E. The Fraud and Conspiracy Claims Against the Decedent, Joseph Lacob and David Lacob ’s Estate are Subject t0 Demurrer The second cause 0f action for fraud and conspiracy against the Decedent’s Estate and David Lacob’s Estate is procedurally barred as previously described. Both Estates and Joseph Lacob are entitled t0 a favorable demurrer ruling because 0f the failure t0 plead the requisite factual allegations with specificity. Similar t0 first cause 0f action, Plaintiff fails t0 plead in her second cause of action sufficient facts as t0 how, when, where, to whom, and What representations were made by Sidney Lacob, Joseph Lacob, or David Lacob t0 Plaintiff as required.36 For example, the Amended Complaint includes vague allegations that: “Sidney’s sons had motive and opportunity t0 communicate with Sidney and each other t0 facilitate 0r make a plan t0 deprive plaintiff 0f the asset distribution that had been promised to her by Sidney.”37 Such a conclusory statement does not constitute factual allegations sufficient to support a fraud claim.” Furthermore, t0 allege conspiracy, a plaintiff must allege facts showing that the conspiring defendants had actual knowledge of the planned tort and concurred in the tortious scheme with knowledge 0f is unlawful purpose.” In the Amended Complaint, all Plaintiff provides are only conclusory allegations without factual support. Therefore, the Plaintiff’s fraud and conspiracy actions are subject t0 demurrer without leave t0 amend as they fail to constitute a cause of action pursuant t0 Code CiV. Proc. § 430.10(e). 36 See West v. JPMorgan Chase Bank N.A., Supra 37 See Amended Complaint at 1] 46 38 See Small v. Fritz Companies, Inc., 30 Cal. 4th 167, 184 (2003) 39 See Kidron v. Movie Acquisition Corp., 40 Cal. App. 4th 1571 (1995) MPA in Support of Demurrer to Verified 7 Case Number: 21CV376879 Amended Complaint 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F. The “Detrimental Reliance” (Promissory Estoppel) Claim is Subject t0 Demurrer Plaintiff’s third cause 0f action is procedurally barred as t0 the Estates 0f Sidney Lacob and David Lacob as previously discussed. But even if not procedurally barred, Plaintiff s claim for “detrimental reliance,” 0r, more accurately, promissory estoppel, is still subj ect to demurrer for not being adequately pleaded. Three elements must be pleaded for promissory estoppel: (1) a promise t0 plaintiff; (2) the plaintiff must reasonably andforeseeably rely on that promise; and (3) the plaintiff must be injured by that reliance.“ In the Amended Complaint, Plaintiff pleaded that she was promised $500,000 in Sidney Lacob’s Will When he died,“ and in reliance upon that promise she: ...purchased a home believing that a significant portion 0f that expense would be defrayed by Sidney’s promised, willed, and intended 50% devise 0f his entire assets t0 Plaintiff.“ Such claimed reliance is not reasonable 0r foreseeable because: (1) the Will was executed in 2016 - years before Sidney Lacob’s death - so Plaintiff had n0 idea When Sidney would pass away and thus When she would receive such allegedly promised money; (2) Plaintiff, as a caretaker, was in a position t0 know that Sidney Lacob’s medical and other expenses could have exhausted funds that could have been distributed to her; and (3) it not foreseeable that a promise 0f a bequest in a Will would be relied upon for a present house purchase. As such, this cause of action is subject t0 demurrer without leave to amend for failing to state a cause of action pursuant t0 Code Civ. Proc. § 430.10(e). G. Plaintiff’s Claim 0f Undue Influence is Also Subject t0 Demurrerfor Procedural Reasons and Because Such Tort is Nonsensical as Applied Plaintiff’s fourth cause 0f action 0f undue influence against David’s Estate is procedurally barred as previously discussed. In addition, her claim against Joseph (as well as the David Lacob Estate) is substantively subj ect t0 demurrer because Plaintiff does not apply the doctrine 0f undue influence for will contests correctly. First, nowhere in the Amended Complaint does Plaintiff allege that either Joseph Lacob 0r 4° See F/intco Pacific Inc. v. TEC Management Consultants, Inc. 1 Cal. App. 5th 727, 734 (2016) 41 See Amended Complaint 1] 50 42 Id. 1] 52 MPA in Support of Demurrer to Amended g Case Number: 21CV376879 Verified Complaint 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 David Lacob actually exerted undue influence over their father. The Plaintiff” s allegation is that they “. . .had the motive and opportunity t0 communicate with Decadent and facilitate 0r make a plan t0 deprive Plaintiff 0f the estate benefit that had been promised t0 her.”43 This is insufficient t0 plead undue influence because under California law as “. . .[i]intimacy 0f association is not proof of domination; and n0 inference 0f undue influence. . .is t0 be drawn from the mere existence 0f a confidential or intimate relationship.”44 [Emphasis Added] Secondly, while Wills may be Challenged, either totally 0r partially, 0n the grounds 0f undue influence,“ Plaintiff does not do so. What Plaintiff objects t0 is Sidney Lacob’s alleged 3“change in his financial accounts pay-on-death” beneficiary status. Financial accounts with “pay-on-death” beneficiary designations are not part 0f an estate, and in fact are designed t0 avoid probate. Thus, they cannot be subject t0 an “undue influence” cause 0f action regarding a will contest. Plaintiff also seems t0 confuse the no contest clause of § 9.02 0f the Will as preventing a pay-on-death beneficiary designation when, in fact, it prevents challenges from beneficiaries 0f the will to the validity 0f the will itself.46 Third, even if “pay-on-deat ” beneficiaries changes were subject t0 undue influence challenges, Plaintiff never alleges that she was ever a “pay-on-death beneficiary” 0r that her status as a beneficiary was changed as a result 0f some form 0f “undue influence.” For these reasons, Plaintiff undue influence claim is subject t0 demurrer under both Code Civ. Proc. §§ 430.10(e) and (f) as it is uncertain what Plaintiff refers t0 as subject to undue influence and fails t0 state a cause 0f action. H. Plaintiff Claim 0f “Interference with Contract” (Intentional Interference with Contractual Relations) is Also Subject t0 Demurrer Plaintiff’s fifth cause 0f action of against Sidney’s Estate is procedurally barred as previously discussed. In addition, her claim against Joseph (as well as the David Lacob Estate) is substantively defective because Plaintiff fails to plead the tort 0f “Intentional Interference with 43 Id. 1] 57 44 See In re Muller’s Estate, 14 Cal. App. 2d 129, 130 (1936); In re: Estate ofMorcel, 162 Cal. 188 (1912) 45 See Estate of Molera 23, Cal. App. 3d 993, 1001 (1972); Prob. Code § 21310(b)(4) 46 See Amended Complaint 1] 15 MPA in Support of Demurrer to Verified 9 Case Number: 21CV376879 Amended Complaint 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Contractual Relations.”47 To prevail 0n the tort of interference With contractual relations, a plaintiff must demonstratez48 (a) a valid contract between the plaintiff and a third party; (b) the defendant's knowledge of this contract; (c) the defendant's intentional acts designed t0 induce a breach 0r disruption 0f the contractual relationship; (d) actual breach or disruption of the contractual relationship; and (e) resulting damage; and (e) resulting damages. Nowhere in the Amended Complaint does Plaintiff plead With any specificity what contract existed, if any, between her and Sidney Lacob. She instead gives vague and, in fact, untrue statements such as: Because Sidney was competent to make his asset distribution plan, he was equally competent t0 make a contract with plaintiff for her t0 provide services for him by her with the compensation being his contract to Will 50% 0f his assets held at death t0 Plaintiff.” And Sidney’s sons had full knowledge 0f the promise and contract made by their father with Plaintiff during Sidney’s lifetime...” Such allegations are insufficient for the first and most important element 0f the tort 0f interference With contractual relations - the existence of a contract. It is unclear from the pleadings What contract is alleged to have been interfered with. Thus, this cause 0f action has not been properly pleaded pursuant t0 Code CiV. Proc. § 430.10(e) I. Plaintiff Unjust Enrichment (Restitution) Claim Against Joseph Lacob and the 47 There is no tort of negligent interference with contractual relations in California. Davis v. Nadrich, 174, Cal. App. 4th 1, 9, 94 (2009) 48 See Gaab and Reese, Rutter Group Cal. Prac. Guide Civil Procedure Before Trial Claims and Defenses 321.1 (October 2020 Update); Quelimane Co. v. Stewart Title Guar. C0,, 19 Cal. 4th 26, 55 (1998); Asahi Kasei Pharma Corp. v. Actelion Ltd., 222 Cal. App. 4th 945, 958 (2013) 49 See Amended Complaint 1] 64 5° Id. at 11 66 MPA in Support of Demurrer to Verified 10 Case Number: 21CV376879 Amended Complaint 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Estate ofDavid Lacob is subject to Demurrer“ Plaintiff’s sixth cause 0f action against David’s Estate is procedurally barred as previously discussed. Plaintiff’s claim for unjust enrichment against Joseph (as well as the David Lacob Estate) are substantively defective because Plaintiff fails to plead a quasi-contractual relationship between herself, Joseph Lacob, and/or the Estate of David Lacob. Unjust enrichment is not a cause 0f action, 0r even a remedy, but rather it is synonymous With restitution resulting from a quasi-contract.52 The quasi-contract, 0r “implied in law” contract is an obligation, not a true contract, created by the law without regard t0 the intention of the parties, and is designed t0 restore the aggrieved party t0 her former position by return 0f the thing 0r its equivalent m0ney.53 The Amended Complaint fails t0 plead any fact to indicate that Plaintiff had a quasi- contractual relationship with either David Lacob or Joseph Lacob. None 0f the attached documents t0 the original Verified Complaint“ indicate that Plaintiff was ever a pay-on-death beneficiary of Sidney Lacob. Furthermore, she never pleaded that she was listed as a pay-on- death beneficiary 0n any 0f Sidney Lacob’s financial accounts. For these reasons, the accounts are outside Sidney Lacob’s Estate and have nothing to d0 with the alleged contract 0r agreement between Plaintiff and Sidney Lacob, and she never had any quasi-contractual relationship With David Lacob 0r Joseph Lacob. As such, Plaintiff fails to plead a claim for unjust enrichment, pursuant to Code CiV. Proc. § 43 1 . 10(6). J. Plaintiff Seventh Cause 0fActi0nfor Intentional Infliction 0fEm0ti0nal Distress and Negligent Infliction ofEmotional Distress are Subject t0 Demurrer without Leave t0 Amend Plaintiff’s seventh cause 0f action 0f against David’s Estate is procedurally barred as 51 While Unjust Enrichment is not listed in the caption page of the Amended Complaint, it is listed in the footer on each page as well as the sixth cause of action on page 18 of the Amended Complaint. This is very confusing as the sixth cause of action on the caption page is Promissory Estoppel, which appears to be meant to be the third cause of action Detrimental Reliance. 52 See McBride v. Boughton, 123 Cal. App. 4th 379, 388 (2004) 53 See Witkin Summary of California Law, Eleventh Edition (2021), Section 1050; Philpott v. Superior Court, 1 C.2d 512, 517 (1934) 54 No documents were attached to the Amended Complaint served on Defendants. MPA in Support of Demurrer to Verified 11 Case Number: 21CV376879 Amended Complaint 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 previously discussed. Plaintiff also has not pleaded sufficient facts t0 recover under either intentional infliction of emotional distress 0r negative infliction of emotional distress as pleaded in seventh cause 0f action in the Amended Complaint against either David’s Estate 0r Joseph. For intentional infliction 0f emotional distress, a plaintiff must show that defendant(s) conduct is:55 (1) outrageous conduct by the defendant so extreme as to exceed all bounds 0f that usually tolerated in a civilized society; (2) the defendant's intention 0f causing or reckless disregard 0f the probability 0f causing emotional distress; (3) the plaintiff‘s suffering severe 0r extreme emotional distress; and (4) actual and proximate causation 0f the emotional distress by the defendant's outrageous conduct.” In this case, the only facts alleged as t0 the “extreme and outrageous” conduct are: (1) the 1;56 and (2) the allegation that certain items 0fexclusion of Plaintiff from Sidney Lacob’s memoria Sidney Lacob’s personal tangible property were t0 g0 t0 Plaintiff and did not.57 Neither of these allegations come close t0 “outrageous conduct so extreme as t0 exceed all bounds 0f that usually tolerated by a civilized society.” For one thing, Plaintiff, allegedly, was Sidney Lacob’s “...caregiver, assistant, personal friend and companion for more than seven (7) years.”58 It is not unreasonable for the family to limit attendance at funerals to family members and exclude household staff and friends -- particularly during the Covid-19 pandemic. Furthermore, disputes over the distribution of personal effects in estate proceedings are extremely common, so such disputes cannot plausibly be categorized as “outrageous.” Plaintiff also has not pleaded sufficient facts to support the allegation of negligent infliction 0f emotional distress. In addition t0 the “extreme and outrageous” requirements previously discussed that are not pleaded, neither David Lacob nor Joseph Lacob owed any duty 0f care whatsoever t0 Plaintiff based on the facts pleaded in Amended Complaint. Plaintiff 55 See Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, lnc., 129 Cal App. 4th 1228 (2005); Trerice v. Blue Cross of California, 209 Cal.App.3d 878, 883 (1989) 56 See Amended Complaint at 1] 81 57 Id. at 1] 82 58 Id. at 1] 2 MPA in Support of Demurrer to Verified 12 Case Number: 21CV376879 Amended Complaint 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 alleges that as “heirs, beneficiaries, and because Plaintiff’s promised, willed contracted, and intended relationship with Sidney,” Joseph Lacob and David Lacob owed Plaintiff a duty of care.” Neither Joseph Lacob nor David Lacob became administrators 0f Sidney Lacob’s estate. Such a fiduciary relationship between the executors and heirs can only be established by court order.“ For these reasons, the intentional and negligent infliction 0f emotional distress cause of action is subject t0 demurrer pursuant to Code 0f CiV. Proc. § 430.10(e) for failure to state a cause of action without leave t0 amend. K. Plaintiff Ninth Cause ofAction for the Establishment ofa Constructive Trust is Subject t0 Demurrer without Leave t0 Amend Plaintiff’s Ninth Cause 0f Action against David’s Estate is procedurally barred as previously discussed. Plaintiff also has not pleaded sufficient facts t0 recover under a constructive trust, making it also subject t0 demurrer pursuant t0 Code CiV. Proc. § 430.10(e). T0 establish a constructive trust, the plaintiff must show that the defendant(s) gained property: ...by fraud, accident, mistake, undue influence, the Violation 0f a trust, 0r other wrongful act, unless he 0r she has some other and better right thereto, an involuntary trustee 0f the thing gained, for the benefit of the person who would otherwise have had it.“ In this case, Plaintiff fails t0 adequately plead any of the above. In fact, the Plaintiff claims that the wrongful conduct t0 justify the imposition of a constructive trust is primarily based upon “the refusal and failure 0f Decedent’s sons t0 probate their father’s will. . 7’62 As previously stated, a creditor can open an estate and probate a will, and it is not “wrongful conduct” for heirs 0fnamed executors to not probate a will as they are not legally required to d0 so especially since the gross value 0f the assets that passed by Sidney’s will was substantially lower than the limit for the affidavit procedure for collection under Probate Code §§ 13 100- 13 1 15 . For these reasons, the cause 0f action for a constructive trust is also subj ect t0 demurrer 59 Id. at 1] 83 6° See Estate ofSanders, 40 Cal. 3d 607, 616-617 (1985) 61 See Civ. Code §§ 2224 and 2223 62 See Amended Complaint 1111 101-102 MPA in Support of Demurrer to Verified 13 Case Number: 21CV376879 Amended Complaint OO\IO\UI-I>UJN KO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 without leave to amend as n0 valid cause 0f action has been pleaded as required by Code CiV. Proc. § 430.10(e). IV. CONCLUSION For the foregoing reasons, Defendants respectfully ask this Court to sustain this Demurrer as t0 the Amended Complaint Without leave t0 amend. DATED: March 1, 2022 HANSEN LAW FIRM, P.C. 7%W CRAIG ALAN HANSEN PHILIP YEAGER Attorney for Defendants JOSEPH S. LACOB; JEAN LACOB, Personal Representative of the Estate of David B. Lacob MPA in Support of Demurrer to Verified Amended Complaint 14 Case Number: 21CV376879
