Notice of Hearing no feeCal. Super. - 6th Dist.January 29, 2021UI-bWN \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 P. Hernan Craig A. Hansen (SBN 209622) Electronically Filed Email: craig@hansenlawfirm.net by Superior Court Of CA, Ph111p E Ygager (SBN 265939) County of Santa Clara, Ema11: p_h11@hansenlawfirm.net on 3,1 [2022 4:53 pMHANSEN LAW FIRM, P.C. - . 75 E. Santa Clara Street, Suite 1250 Rev'ewed By' P' Hernandez San Jose, CA 951 13 case #21 CV376879 Telephone: (408) 715-7980 Envelope: 8404549 Facsimile: (408) 715-7001 Attorneys for Defendants JOSEPH S. LACOB; JEAN LACOB, Personal Representative 0f the Estate of David B. Lacob. SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA Verenice Torres, Case N0. 21CV376879 Plaintiff DEMURRER T0 PLAHVTIFF’S VERIFIED AMENDED COMPLAINT V. DATE: . . TIME: Personal Representatlve 0r Putatlve DEPT; 19 Administrator 0f the Estate 0f Sidney H. Lacob, Joseph S. Lacob, Jean Kilburn aka Jean Lacob, Personal Representative of the Estate of David B. Lacob and DOES 1-25, et a1 Defendants. Pursuant to California Code of Civil Procedure §§ 430.10(d), (e), and (f), Defendants JOSEPH S. LACOB; JEAN LACOB, Personal Representative of the Estate 0f David B. Lacob (“Defendants”) demur t0 the First Amended Verified Complaint (“the Amended Complaint ”) on the following basis: A. Non-Existent Personal Representatives 0f an Estate Cannot be Named as Defendants Plaintiff defectively names the “Personal Representative 0r Putative Administrator of the Estate of Sidney H. Lacob” which does not exist. Neither Joseph Lacob nor Jean Lacob, nor anyone else, have petitioned to become representatives of the Estate of Sidney H. Lacob. Even if dez Demurrer to Verified Amended Complaint 1 Case Number: 21CV376879 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 either one of them did, they would not become personal representative Without an order from the Probate Court.1 Any action against representative 0f the Estate 0f Sidney Lacob is subj ect to demurrer Without leave t0 amend pursuant to C.C.P. § 430.10(d), Which allows demurrers when there is a “defect of parties,” because the named “personal representative” defendants are not actually personal representatives of any existing estate. B. The Prerequisite 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 Prob. Code §§ 9000 and 9002, et. seq. Plaintiff filed a creditor’s claim against the Estate 0f David Lacob 0n 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, so the action as t0 Jean Lacob, as Executor for David Lacob’s Estate, is subj ect t0 demurrer pursuant t0 Code CiV. Proc. §430.10(e). Also, no probate was ever opened for the Estate of Sidney Lacob for Plaintiff client t0 file the requisite creditor’s claim either. Under Code CiV. Proc. § 336.2, an action may be commenced within one year at the date of the death 0f a decedent. The prerequisite creditor’s claim to such an action also serves the purpose 0f tolling the statute 0f limitation (Code Civ. Proc. §336.2) pursuant t0 Prob. Code § 9352. Thus, any action against a representative of Sidney Lacob’s is time-barred as more than one year has elapsed since Sidney Lacob’s death? C. A Civil Complaint is an Improper Method for Plaintiff t0 Petition t0 Administer the Sidney Lacob Estate This “cause 0f action” is wholly improper in a civil complaint. First, there presently is no petition 0n file by anyone t0 administer the Sidney Lacob Estate 0r t0 admit any will of Sidney Lacob t0 probate. Second, if an alleged creditor or other interested person, Which Plaintiff claims t0 be, Wishes to administer an estate and/or admit a will t0 probate, they must d0 so with Judicial 1 See Prob. Code §§ 8400 et. seq. 2 Code Civ. Proc. § 366.2; Prob. Code §§ 9000 et. seq Demurrer t0 Verified Complaint 2 Case Number: 21CV376879 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Council Form DE-l 11 Petition for Probate.3 This is a mandatory form, so a civil complaint for similar relief is wholly improper.4 Therefore, the tenth cause of action seeking administration 0f the Sidney Lacob’s Estate is improper is uncertain and unintelligible and subj ect t0 demurrer pursuant t0 Code CiV. Proc § 430. 10(d), (e), and (f), as it is a non-sensical cause 0f action Which misnames parties and fails to state a cause of action. D. The Fraudulent Inducement Claim is Subject t0 Demurrer Plaintiff has not properly pleaded fraud in compliance With California’s pleading requirements. Plaintiff only pleaded, “Decadent used his representations regarding his Will to induce Plaintiff t0 continue to work for him at a significantly reduced rate 0f compensation.”5 Plaintiff also fails t0 plead what her “reduced rate 0f compensation” was 0r What her “non- reduced rate 0f compensation” was. Plaintiff also finally to specify when and where the representations 0f decedent were made as required by California law. Therefore, Plaintiff fraudulent inducement action is subject t0 demurrer pursuant t0 Code CiV. Proc. § 430.10(e) without leave t0 amend because it is untimely, procedurally improper, and not pled With the requisite specificity. E. The Fraud and Conspiracy Claims Against the Decedent, Joseph Lacob and David Lacob’s Estate are Subject t0 Demurrer Plaintiff fails to plead in her second cause of action sufficient facts as to how, When, Where, to whom, and what representations were made by Sidney Lacob, Joseph Lacob, or David Lacob to Plaintiff as required.6 Furthermore, to 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 of is unlawful purpose.7 In the Amended Complaint, all Plaintiff provides are conclusory allegations Without factual support. Therefore, the Plaintiff” s fraud and conspiracy actions are subj ect to demurrer Without leave t0 amend as they fail t0 3 See Rutter Group Cal. Prac. Guide Probate § 3:77 (2020); Prob. Code §§ 8002, 10450 4 ld.; Request forJudicial Notice Exhibit 3 -Judicia| Council Form DE-111 5 See Amended Complaint 1] 37 6 See West v. JPMorgan Chase Bank N.A., Supra 7 See Kidron v. Movie Acquisition Corp., 40 Cal. App. 4th 1571 (1995) Demurrer t0 Verified Complaint 3 Case Number: 21CV376879 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 constitute a cause of action pursuant t0 Code Civ. Proc. § 430. 10(6). F. The “Detrimental Reliance” (Promissory Estoppel) Claim is Subject t0 Demurrer Three elements must be pleaded for promissory estoppel: (1) a promise to plaintiff; (2) the plaintiff must reasonably andforeseeably rely on that promise; and (3) the plaintiff must be injured by that reliance.8 In the Amended Complaint, Plaintiff pleaded that she was promised $500,000 in Sidney Lacob’s will when he died,9 and in reliance upon it she: ...purchased a home believing that a significant portion of that expense would be defrayed by Sidney’s promised, willed, and intended 50% devise of his entire assets t0 Plaintiff.” Such claimed reliance is not reasonable or foreseeable because: (1) the Will was executed in 2016 - years before Sidney Lacob’s death - so Plaintiff had no 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 to know that Sidney Lacob’s medical and other expenses could have exhausted fimds 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 0f action is subj ect to demurrer Without leave to amend for failing to state a cause of action pursuant to Code CiV. Proc. § 430.10(e). G. Plaintiff’s Claim 0f Undue Influence is Also Subject t0 Demurrer for Procedural Reasons and Because Such Tort is Nonsensical as Applied Plaintiff does not apply the doctrine ofundue influence for will contests correctly. First, nowhere in the Amended Complaint does Plaintiff allege that either Joseph Lacob 0r David Lacob actually exerted undue influence over their father. The Plaintiff s allegation is that they “. . .had the motive and opportunity to communicate with Decedent and facilitate or make a plan to deprive Plaintiff 0f the estate benefit that had been promised t0 her.”“ This is insufficient t0 plead undue influence because under California law, “. . . [i]intimacy 0f association is not proof 0f domination; and no inference 0f undue influence. . .is t0 be drawn from the mere existence of a 8 See F/intco Pacific Inc. v. TEC Management Consultants, Inc. 1 Cal. App. 5th 727, 734 (2016) 9 See Amended Complaint 1] 50 1° Id. 1] 52 11 Id. 1] 57 Demurrer t0 Verified Complaint 4 Case Number: 21CV376879 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 confidential 0r intimate relationship.”12 [Emphasis Added] Secondly, while wills may be challenged, either totally or partially, 0n the grounds of undue influence,” Plaintiff does not d0 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-deat ” beneficiary designations are not part of an estate, and in fact are designed to avoid probate. Thus, they cannot be subject t0 an “undue influence” cause 0f action regarding a will contest. She also seems t0 confuse the n0 contest clause 0f § 9.02 0f the Will as preventing a pay- on-death beneficiary designation When, in fact, it prevents challenges from beneficiaries of the will to the validity 0f the Will itself.” 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” or 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 subj ect t0 demurrer under both Code CiV. Proc. §§ 430.10(e) and (f) as it is uncertain what Plaintiff refers to as subject t0 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 her Claim against Joseph (as well as Sidney Lacob’s Estate) is substantively subj ect to demurrer because Plaintiff fails plead the tort of “Intentional Interference with Contractual Relations?“ To prevail 0n the tort of interference with contractual relations, a plaintiff must demonstrate: 16 (a) a valid contract between the plaintiff and a third party; (b) the defendant's knowledge of this contract; 12 See In re Muller’s Estate, 14 Cal. App. 2d 129, 130 (1936); In re: Estate of Marcel, 162 Cal. 188 (1912) 13 See Estate of Molera 23, Cal. App. 3d 993, 1001 (1972); Prob. Code § 21310(b)(4) 14 See Amended Complaint 1] 15 15 There is no tort of negligent interference with contractual relations in California. Davis v. Nadrich, 174, Cal. App. 4th 1, 9, 94 (2009) 16 See Gaab and Reese, Rutter Group Cal. Prac. Guide Civil Procedure Before Trial Claims and Defenses 3:1.1 (October 2020 Update); Quelimane Co. v. Stewart Title Guar. Co.19 Cal. 4th 26, 55 (1998); Asahi Kasei Pharma Corp. v. Actelion Ltd. 222 Cal. App. 4th 945, 958 (2013) Demurrer t0 Verified Complaint 5 Case Number: 21CV376879 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (c) the defendant's intentional acts designed to induce a breach 0r disruption of the contractual relationship; (d) actual breach 0r 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 like: 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 of the tort of interference with contractual relations - the existence 0f a contract. It is unclear from the pleadings what contract is alleged to have been interfered With and exactly how it was interfered With. Thus, this cause of action has not been properly pleaded pursuant to Code CiV. Proc. § 430. 10(6) because no matter what Plaintiff alleges Decedent’s sons knew or did, there was no contract to disrupt. I. Plaintiff’ Unjust Enrichment (Restitution) Claim Against Joseph Lacob and the Estate 0f David Lacob is subject to Demurrer” Plaintiff fails to plead a quasi-contractual relationship between herself, Joseph Lacob, and/or the Estate 0f David Lacob. None of the attached documents to the original Verified Complaint” indicate that Plaintiffwas 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 17 See Amended Complaint 1] 64 18 Id. at 1] 66 19 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. 2° No documents were attached to the Amended Complaint served on Defendants. Demurrer t0 Verified Complaint 6 Case Number: 21CV376879 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Sidney Lacob’s financial accounts. For these reasons, the accounts are outside Sidney Lacob’s Estate and have nothing to do 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 t0, pursuant to Code CiV. Proc. § 43 10. 10(6) plead a claim for unjust enrichment. J. Plaintiff’ Seventh Cause 0f Action for Intentional Infliction of Emotional Distress and Negligent Infliction 0f Emotional Distress are Subject t0 Demurrer without Leave t0 Amend For intentional infliction of emotional distress, a plaintiff must show that defendant(s) conduct is:21 (1) outrageous conduct by the defendant so extreme as t0 exceed all bounds of that usually tolerated in a civilized society; (2) the defendant's intention 0f causing or reckless disregard 0f the probability of causing emotional distress; (3) the plaintiffs suffering severe or extreme emotional distress; and (4) actual and proximate causation of 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;” and (2) the allegation that certain items 0fexclusion of Plaintiff from Sidney Lacob’s memoria Sidney Lacob’s personal tangible property were to go t0 Plaintiff and did not.” Neither 0f these allegations come close t0 “outrageous conduct so extreme as t0 exceed all bounds 0f that usually tolerated by a civilized society.” Plaintiff also has not pleaded sufficient facts to support the allegation 0f negligent infliction of 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 0n the facts pleaded in Amended Complaint. Plaintiff alleges that as “heirs, beneficiaries, and because Plaintiff’s promised, willed contracted, and 21 See Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc., 129 Cal App. 4th 1228 (2005); Trerice v. Blue Cross of California, 209 Cal.App.3d 878, 883 (1989) 22 See Amended Complaint at 1] 81 23 Id. at 11 82 Demurrer t0 Verified Complaint 7 Case Number: 21CV376879 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 intended relationship with Sidney,” Joseph Lacob and David Lacob owed Plaintiff a duty 0f 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 to demurrer pursuant to Code 0f CiV. Proc. § 430.10(e) for failure to state a cause of action Without leave to amend. K. Plaintiff’ Ninth Cause of Action for the Establishment 0f a Constructive Trust is Subject t0 Demurrer without Leave t0 Amend Plaintiff has not pled sufficient facts t0 recover under requesting the establishment 0f a constructive trust, making it also subject t0 demurrer pursuant t0 Prob. Code § 430.10(e). T0 show a constructive trust, the plaintiff must show that the defendant(s) gained property: ...by fraud, accident, mistake, undue influence, the Violation of 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 0f the person Who would otherwise have had it.26 In this case, Plaintiff fails t0 adequately plead any 0f the above. In fact, the Plaintiff claims that the wrongful conduct to justify the imposition 0f a constructive trust is primarily based upon “the refusal and failure of Decedent’s sons to probate their father’s will. . 7’27 As previously stated, a creditor can open an estate and probate a will, and it is not “wrongful conduct” for heirs ofnamed executors to not probate a Will as they are not legally required t0 d0 so. For these reasons, the cause 0f action for a constructive trust is also subj ect t0 demurrer Without leave to amend as no valid cause of action has been pleaded as required by Code CiV. Proc. § 430.10(e). 24 Id. at 1] 83 25 See Estate ofSanders, 40 Cal. 3d 607, 616-617 (1985) 26 See Civ. Code §§ 2224 and 2223 27 Amended Complaint 1H1 101-102 Demurrer t0 Verified Complaint g Case Number: 21CV376879 U‘IAUJN \OOOQQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respondents’ demurrer is based upon the Amended Complaint filed in this matter, this Demurrer, the Notice of Demurrer, the Memorandum 0f Points and Authorities, the Declaration of Philip Yeager, and any matters as to Which the Court must or may take judicial notice. DATED: March 1, 2022 HANSEN LAW FIRM, P.C.ffifl/ CRAIG ALAN HANSEN PHILIP YEAGER Attorney for Defendants JOSEPH S. LACOB; JEAN LACOB, Personal Representative of the Estate 0f David B. Lacob Demurrer to Verified Complaint 9 Case Number: 21CV376879
