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Anderson v. Gleason

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Sep 12, 2017
G052897 (Cal. Ct. App. Sep. 12, 2017)

Opinion

G052897

09-12-2017

PARISA ANDERSON, Plaintiff and Appellant, v. LORI GLEASON et al., Defendants and Respondents.

Robert Parker Mills, for Plaintiff and Appellant. Ross, Wershing & Wolcott, Suzanne M. Tague, and Gianna Gruenwald, for Defendants and Respondents, Lori Gleason, Sharon Reeder, and Scott Culross. Stephen R. Rykoff, for Defendant and Respondent, Lynn L. Kambe.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2014-00709752) OPINION Appeal from a judgment of the Superior Court of Orange County, Randall J. Sherman, Judge. Reversed with directions. Robert Parker Mills, for Plaintiff and Appellant. Ross, Wershing & Wolcott, Suzanne M. Tague, and Gianna Gruenwald, for Defendants and Respondents, Lori Gleason, Sharon Reeder, and Scott Culross. Stephen R. Rykoff, for Defendant and Respondent, Lynn L. Kambe.

* * *

The trial court sustained without leave to amend defendants' demurrer to plaintiff's third amended complaint (TAC), and in some respects we can understand why. The fine drafting of a succinct complaint can elude even the most seasoned practitioner. Overly repetitive themes and phrases and incorporating every previous cause of action into later causes of action leads to confusion and leaves the reader craving clarity. So it is in this case. Nevertheless, we tease out sufficient facts for some of plaintiff's causes of action to survive the pleading stage.

According to the TAC, plaintiff Parisa Anderson and defendant Robert Cole began a business relationship that later turned romantic and committed. Cole established a will and trust naming plaintiff as beneficiary. He also accepted $114,000 from plaintiff, placed it in his Merrill Lynch account to invest, and made plaintiff the beneficiary of the account. He named plaintiff as his domestic partner and as the beneficiary of a separate retirement account. Finally, Cole caused real property he owned with plaintiff to be held in joint tenancy so plaintiff would inherit his half of the property upon his death. He also gave plaintiff a power of attorney with power to make financial decisions, and an advanced medical directive with power to make medical decisions, in the event he became incompetent.

Cole is not a party to the appeal.

Cole later became unable to manage his financial affairs due to the effects of Parkinson's disease. One day while Cole was hospitalized, defendants Lori Gleason, Sharon Reeder, Scott Culross (all relatives of Cole), and Lynn Kambe (an attorney who specializes in estate planning and probate), apparently acting through an earlier and potentially stale power of attorney, caused the hospital to forbid plaintiff access to Cole. After he was released from the hospital to a place unknown to plaintiff, defendants engaged in a pattern of either unduly influencing Cole to change his testamentary and other documents to cut plaintiff out or used the power of attorney to do so directly.

The TAC alleges causes of action for intentional interference with expected inheritance, intentional and negligent infliction of emotional distress, negligence, conversion, unjust enrichment, and intentional interference with prospective economic advantage. The court found plaintiff failed to state a cause of action under any theory.

We agree after four efforts plaintiff failed to state causes of action for intentional interference with expected inheritance, negligent infliction of emotional distress, and negligence. But we conclude plaintiff's TAC adequately pleaded facts to state causes of action for intentional infliction of emotional distress, conversion, unjust enrichment, and intentional interference with prospective economic advantage. Accordingly, we reverse.

FACTS

Because this case never moved beyond the pleading stage, all the facts are as alleged and contained in plaintiff's TAC.

Plaintiff and Cole met in 2000 and between 2000 and 2008, their relationship morphed from business to romantic and committed. In 2008, plaintiff and Cole entered into a business agreement whereby plaintiff, a licensed real estate salesperson, looked for foreclosed property in La Quinta, California that they could live in together and call home. They agreed that if successful, plaintiff and Cole would mutually share the expenses on the property. In 2008, plaintiff successfully bid on a property in La Quinta, and thereafter, plaintiff and Cole cohabited together holding themselves out to the public as a married couple. They lived in the house from 2008 forward sharing expenses and property taxes. Cole told neighbors he and plaintiff were husband and wife.

In 2009, plaintiff gave Cole $30,000 for her one-half interest in the home. Cole placed plaintiff's money in his Merrill Lynch investment account. Cole stated he would invest this money for plaintiff and he named plaintiff as beneficiary of the account and told her she would inherit the account on his death. Plaintiff then gave Cole an additional $64,000, $10,000 and $10,000 to invest in the account.

In around 2010, Cole told plaintiff that because of the way defendants had treated his mother and for fear they would try to take the money and property he and plaintiff shared, he had independently consulted a lawyer and established a trust. The trust named plaintiff as its primary beneficiary. Cole filed a "joint tenancy deed of trust" on the property naming the trust and plaintiff as joint tenants in part to assure plaintiff would get the house on Cole's death. Cole also executed a will "accomplishing the same" (giving plaintiff all his assets). Cole created a new power of attorney, superseding an old one made before he met and fell in love with plaintiff, giving plaintiff power to make all financial decisions if he became incompetent, and an advanced medical directive giving plaintiff power to make medical decisions for him if he became incompetent.

In light of later allegations regarding the conveyance of Cole's trust's interest in the property to create a tenancy in common with plaintiff, and the current allegation that the instrument resulted in plaintiff and Cole's trust becoming joint tenants, we presume the allegation of a "joint tenancy deed of trust" (which would have no discernible meaning) was actually intended to refer to a deed conveying title to plaintiff and Cole's trust as joint tenants.

At some point Cole named plaintiff as his domestic partner and beneficiary on his Benefit Life retirement account. He told plaintiff she would inherit his retirement and everything else he owned upon his death.

Plaintiff made a $5,000 down payment towards purchase of a Toyota Camry so she could transport Cole to his doctor's appointments and their desert home. Plaintiff made payments on the car. Cole told her if she registered the car in his name he could get better rates through his credit union. Plaintiff did as instructed and continued to make payments on the loan and insurance.

In July 2013 Cole had an episode with his Parkinson's disease requiring hospitalization. Up until then, none of the defendants except Culross saw Cole during the 13 years plaintiff and Cole were together. Defendants first learned Cole was in the hospital when Gleason contacted plaintiff asking for Cole's mother's safety deposit box key. Shortly after being advised neither plaintiff nor Cole had the key, defendants showed up at the hospital and for the first time learned of the relationship between Cole and plaintiff, their joint ownership of the property and the fact they lived together. Defendants also learned for the first time about the trust, will, power of attorney, and advanced medical directive.

Plaintiff and defendants were advised by hospital staff that Cole was mentally incompetent to make financial or medical decisions "now, in the near future, or for a long time." Upon hearing this, defendants employed undue influence by brainwashing Cole against plaintiff, telling him untrue things to get him to doubt her love and sincerity, and to convince him to follow their new plans. Gleason, using an old power of attorney that was made earlier than plaintiff's, convinced the hospital to preclude plaintiff from entering Cole's room and to remove plaintiff from the contact list.

Around August 2013 defendants removed Cole from the hospital while he was still mentally incompetent to make financial and medical decisions, allegedly against hospital policy, without plaintiff's knowledge or consent even though plaintiff had the superior power of attorney. Defendants then "forced the mentally incompetent Cole" to change his joint tenancy deed to add Gleason as a tenant in common on Cole's half of the deed so if Cole died or wanted to give his joint tenancy interest to plaintiff it could not be accomplished. They also "removed plaintiff" from Cole's trust, will, power of attorney and advanced medical directive and removed plaintiff's name as beneficiary of Cole's Merrill Lynch investment account and the Benefit Life retirement account. Defendants told Merrill Lynch plaintiff was not to withdraw any money from the account or even be allowed to look at the account. Defendants also removed plaintiff as his domestic partner on his retirement account so she would inherit nothing from it. Elsewhere plaintiff alleges defendants through undue influence, fraud and/or forgery "got Cole to remove" plaintiff as primary beneficiary on Cole's trust, to change the will so plaintiff gets nothing, and to change the power of attorney and advanced medical directive to remove plaintiff. She also alleges defendants "either by employing undue influence" upon Cole or forging Cole's signature, caused the mentally incompetent Cole to change his power of attorney and advanced medical directive to remove plaintiff and put Gleason in her place. The new will leaves everything to Gleason. ~All these documents put Gleason in place of plaintiff, and Kambe became the administrator of Cole's new estate.

All these acts were done while Cole was incompetent to make changes to his documents. Defendants used undue influence and/or forgery when Cole was incompetent to destroy plaintiff's and Cole's relationship of 13 years, all without plaintiff's knowledge, consent or authorization and to destroy plaintiff's reasonable expectation of inheriting the house and other assets Cole had voluntarily given to plaintiff in his trust and will.

Plaintiff alleges defendants prevented plaintiff from seeing Cole, broke into plaintiff's home and stole documents important to this case, changed the locks, stole pictures of Cole and plaintiff, refused to return plaintiff's money she invested with Cole, refused to pay utility bills and property taxes for two years, and told the tax assessor to only send tax bills to Gleason and Kambe. Plaintiff alleges defendants placed Cole into hiding, moving him out of state.

Kambe called plaintiff and told her to return the Toyota Camry to her office or she would call the police and report it stolen. Plaintiff, in fear, returned the car to the credit union even though she paid $5,000 for the down payment and made several payments.

Plaintiff alleges all these activities are "just what Cole wanted to protect against — the same abuse perpetrated on Cole's mother."

Plaintiff also alleges Gleason filed an elder abuse complaint in the Orange County Superior Court on behalf of Cole and had the sheriff's office attempt to serve plaintiff, in an effort to harass plaintiff. This harassment included causing plaintiff's neighbors in La Quinta to question plaintiff as to the circumstances surrounding the sheriff's presence, which caused plaintiff severe embarrassment and ridicule. After plaintiff's attorney stated he was going to take Cole's deposition as to what elder abuse was perpetrated on him, Gleason immediately dismissed the complaint. Plaintiff alleges she is informed and believes that defendants forged Cole's name to a request for restraining order as part of the elder abuse complaint. Plaintiff has spent over $35,000 to seek conservatorship for Cole and to defend herself in a harassing elder abuse case of no merit.

Plaintiff alleges she suffered emotional and psychological pain causing her to seek medical intervention at Placentia-Linda Hospital on at least two occasions, with elevated blood pressure, physical shakes, inability to sleep, mood swings and related severe emotional distress. Plaintiff has suffered an increase in blood pressure and gastrointestinal disorder caused by her distress and has constant bad dreams about what was done to her. She has been ordered to seek psychiatric counseling. Plaintiff seeks general and compensatory damages, special damages, punitive damages, a declaration the parties' business agreement is valid and the documents in defendants' possession have been obtained through undue influence or forgery or otherwise obtained illegally, and for attorney's fees and costs.

Kambe filed a demurrer and motion to strike portions of the TAC. Separately Culross, Reeder and Gleason also filed a demurrer and motion to strike portions of the TAC. Plaintiff opposed the demurrers and filed a request to take judicial notice of three documents: a copy of a 2009 receipt issued by Cole to plaintiff in the sum of $128,500 in cash for purposes of investment in the Merrill Lynch account; a copy of an April 2015 letter from plaintiff to Cole; and a copy of a May 2015 letter from plaintiff to Cole. Culross, Reeder and Gleason objected to plaintiff's request for judicial notice.

The court sustained the demurrers without leave to amend thereby mooting the motions to strike. The court denied plaintiff's request for judicial notice. In October 2015, the court entered a judgment of dismissal as to Kambe, Gleason, Reeder and Culross. Plaintiff timely appeals from the judgment.

The court also denied a request for judicial notice by defendants, but that request is not in the record on appeal.

It appears plaintiff settled her claim against Cole.

DISCUSSION

As relevant here, a demurrer is properly sustained when the complaint "does not state facts sufficient to constitute a cause of action." (Code Civ. Proc., § 430.10, subd. (e).) "In determining whether plaintiffs properly stated a claim for relief, our standard of review is clear: "'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed." [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.'" (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)

Intentional Interference with Expected Inheritance

In 2012 a different panel of this court joined the majority of other states in recognizing the tort of intentional interference with expected inheritance (IIEI). (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1046 (Beckwith).) To state a claim for IIEI, the plaintiff must allege: (1) he or she had an expectancy of an inheritance; (2) causation, i.e., to a reasonable degree of certainty the bequest or devise would have been in effect at the time of the death of the testator if there had been no interference; (3) intent, i.e., that the defendant had knowledge of the plaintiff's expectancy of inheritance and took deliberate action to interfere with it; (4) that the interference was conducted by independently tortious means, i.e., the underlying conduct must be wrong for some reason other than the fact of the interference; and (5) damage. (Id. at p. 1057.)

"Additionally, an IIEI defendant must direct the independently tortious conduct at someone other than the plaintiff. The cases firmly indicate a requirement that '[t]he fraud, duress, undue influence, or other independent tortious conduct required for this tort is directed at the testator. The beneficiary is not directly defrauded or unduly influenced; the testator is.' [Citation.] In other words, the defendant's tortious conduct must have induced or caused the testator to take some action that deprives the plaintiff of his expected inheritance." (Beckwith, supra, 205 Cal.App.4th at pp. 1057-1058.) Finally, the plaintiff must have no adequate remedy in probate court. (Id. at p. 1058.)

The court concluded plaintiff cannot state a cause of action for IIEI because Cole is still alive. Plaintiff argues there is nothing in Beckwith that requires the testator must be dead. We did not address the issue in Beckwith, because there the decedent had already died. (See Beckwith, supra, 205 Cal.App.4th at p. 1047.) The parties have not cited, and we have not found, a case where IIEI has been recognized while the testator is still living. The issue is one of causation. If the testator is still alive, a plaintiff cannot assert to a reasonable degree of certainty that the bequest or devise would be in effect at the time of death but for the interference. A testator is able to change his or her testamentary documents at any time before death. For this reason alone, plaintiff cannot state a cause of action for IIEI.

However, plaintiff's cause of action also fails because assuming the facts pleaded are true, she has an adequate remedy in probate court when Cole dies. (See Beckwith, supra, 205 Cal.App.4th at p. 1053 [tort of IIEI only available when aggrieved party has essentially been deprived of access to the probate system]; see also Munn v. Briggs (2010) 185 Cal.App.4th 578, 587-590.) Unlike the plaintiff in Beckwith who was never named in the will and trust at issue (Beckwith, at p. 1046), here plaintiff alleges she was the beneficiary of the trust and that Cole had left her all his property in his will. Therefore she has standing in probate as an interested person. (See Prob. Code, § 48.) Under these circumstances, plaintiff can challenge any allegedly unlawful change to the will when it is probated. (See Munn, at p. 590 ["'We feel compelled to protect the jurisdictional space carved out by our legislature when it enacted the Probate Code and created remedies, such as a will contest, designed exclusively for probate'"].) Plaintiff can challenge an allegedly unlawful change to the trust, as well. (See Prob. Code, § 17000 et seq.) Hence, she has an adequate remedy in probate court. (See Beckwith, supra, 205 Cal.App.4th at p. 1056 [barring IIEI claims when adequate probate remedy exists strikes appropriate balance between respecting integrity of probate system, guarding against tort liability for inherently speculative claims and protecting society's interest in providing remedy for injured parties].) The facts as alleged do not state a cause of action for IIEI as a matter of law.

Intentional Infliction of Emotional Distress

The essential elements of intentional infliction of emotional distress are: (1) outrageous conduct; (2) intention of causing, or reckless disregard of the probability of causing emotional distress; (3) severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. (Girard v. Ball (1981) 125 Cal.App.3d 772, 786.)

"'[O]utrageous conduct' is conduct that is intentional or reckless and so extreme as to exceed all bounds of decency in a civilized community." (So v. Shin (2013) 212 Cal.App.4th 652, 671.) "The defendant's conduct must be directed to the plaintiff, but malicious or evil purpose is not essential to liability." (Ibid.) "There is no bright line standard for judging outrageous conduct and "'. . . its generality hazards a case-by-case appraisal of conduct filtered through the prism of the appraiser's values, sensitivity threshold, and standards of civility. The process evoked by the test appears to be more intuitive than analytical . . . .'"'" (Id. at p. 671.) "Thus, whether conduct is 'outrageous' is usually a question of fact." (Id. at p. 672.) As we have previously observed, behavior may be considered outrageous if a defendant abuses a relation or position which gives him power to damage the plaintiff's interest. (Hailey v. California Physicians' Service (2007) 158 Cal.App.4th 452, 473-474 [allegation health care service plan delayed asserting perceived legal right to rescind health care contract due to omissions in application until after subscriber suffered serious injury alleged extreme and outrageous conduct].)

Here the gist of plaintiff's cause of action is that defendants cheated her out of her position as beneficiary of Cole's will, trust, Merrill Lynch account, retirement account and joint tenancy status through acts of fraud or undue influence upon Cole, or through improper use of a stale power of attorney given to Gleason many years ago. Probate Code section 4130 provides, "(a) If a principal grants inconsistent authority to one or more attorneys-in-fact in two or more powers of attorney, the authority granted last controls to the extent of the inconsistency." If plaintiff's allegations prove true, defendants' actions may have run afoul of Probate Code section 4130.

Plaintiff alleges defendants forbade her access to Cole (her longtime romantic partner), both at the hospital and afterwards. Plaintiff alleges defendants broke into her home and stole documents and photos of her and Cole. She also alleges Gleason filed an unsubstantiated elder abuse complaint against plaintiff in an effort to harass her. Hence, plaintiff's distress is not limited to "fighting about money" and defendants' actions were not directed only at Cole as defendants argue. It is plaintiff who has suffered the distress, not Cole.

We reject the contention defendants' conduct was not outrageous as a matter of law. (See Golden v. Dungan (1971) 20 Cal.App.3d 295, 309-310 [allegation process server was banging on door in middle of night stated cause of action for mental distress]; Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 205 (Ragland) [borrower's treatment by Downey Savings in wrongfully selling her home in foreclosure sale, if proven, was so extreme as to exceed all bounds of decency in our society]; Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 396-398 [insurance company threatening to withhold and actually withholding disability benefits constituted intentional infliction of emotional distress].) The issue is one for the trier of fact, and plaintiff has pleaded sufficient facts alleging defendants' conduct was outrageous.

Finally, "'"severe" means substantial or enduring as distinguished from trivial or transitory. Severe emotional distress means, then, emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it." (Girard v. Ball, supra, 125 Cal.App.3d at pp. 787-788.) Here plaintiff alleges she suffered emotional and psychological pain causing her to seek medical intervention at Placentia-Linda Hospital on at least two occasions, with elevated blood pressure, physical shakes, inability to sleep, mood swings and related severe emotional distress. She also alleges she has suffered an increase in blood pressure and gastrointestinal disorder and has constant bad dreams and needs psychiatric counseling.

Plaintiff alleged facts sufficient to state a cause of action for intentional infliction of emotional distress. The trial court erred in sustaining defendants' demurrer to this cause of action.

Negligence and Negligent Infliction of Emotional Distress

In support of her negligence allegations, plaintiff contends she was a direct victim of emotional distress. A direct victim case requires a duty owed to plaintiff. (Ragland, supra, 209 Cal.App.4th at p. 205.) "An action in negligence requires a showing that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff." (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673.) "There is no independent tort of negligent infliction of emotional distress; rather, '[t]he tort is negligence, a cause of action in which a duty to the plaintiff is an essential element.' [Citation.] 'That duty may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.'" (Ragland, at p. 205.) Hence, in order to state a claim for negligence or negligent infliction of emotional distress, plaintiff must establish defendants owed her a duty.

Plaintiff alleges defendants are in a class of persons who owe her a duty in that "Cole and [p]laintiff had a cohabiting relationship in which they owned the property they lived in together since 2009." She also alleges she was in the class of persons defendants owed a duty to and it was reasonable and foreseeable their negligent acts would cause financial harm, injury, emotional distress, and damages to plaintiff. For this proposition plaintiff relies on Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40 (Weirum).

In Weirum, the primary question was whether defendant owed a duty to decedent arising out of a broadcast giveaway contest that led to a collision between two teenage drivers. (Weirum, supra, 15 Cal.3d at p. 45.) The court stated the determination of duty is primarily a question of law. (Id. at p. 46.) "It is the court's 'expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.' [Citation.] Any number of considerations may justify the imposition of duty in particular circumstances, including the guidance of history, our continually refined concepts of morals and justice, the convenience of the rule, and social judgment as to where the loss should fall. [Citation.] While the question whether one owes a duty to another must be decided on a case-by-case basis, every case is governed by the rule of general application that all persons are required to use ordinary care to prevent others from being injured as the result of their conduct. [Citation.] However, foreseeability of the risk is a primary consideration in establishing the element of duty." (Id. at p. 46, fn. omitted.)

Noting that the issue of foreseeability if a question of fact for the jury, the Weirum court determined there was substantial evidence to support the jury's finding of foreseeability. (Id. at p. 46.) "Liability is imposed only if the risk of harm resulting from the act is deemed unreasonable — i.e., if the gravity and likelihood of the danger outweigh the utility of the conduct involved. [Citation.] [¶] We need not belabor the grave danger inherent in the contest broadcast by defendant. The risk of a high speed automobile chase is the risk of death or serious injury. Obviously, neither the entertainment afforded by the contest nor its commercial rewards can justify the creation of such a grave risk. Defendant could have accomplished its objectives of entertaining its listeners and increasing advertising revenues by adopting a contest format which would have avoided danger to the motoring public." (Id. at pp. 47-48.)

Weirum is not controlling, as it is procedurally and factually distinguishable. Weirum arose following a jury verdict in plaintiffs' favor (Weirum, supra, 15 Cal.3d at p. 43) and therefore offers limited assistance, because the instant case comes to us following sustained demurrers. Weirum is also factually distinguishable, because here there was no traffic collision causing death, a reasonably foreseeable event arising out of the giveaway contest. Plaintiff has not demonstrated defendants owed her a duty of care as a matter of law. Her status as Cole's chosen partner does not confer a duty owed by defendants, nor does her interest in property she shared with Cole. "[T]here was no relationship between [plaintiff] and [defendants] giving rise to a duty the breach of which would permit [plaintiff] to recover emotional distress damages based on negligence." (Raglund, supra, 209 Cal.App.4th at p. 208.) Having failed to establish the existence of a duty, plaintiff cannot state causes of action for negligence or negligent infliction of emotional distress.

Conversion

"'"Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion are the plaintiff's ownership or right to possession of the property at the time of the conversion; the defendant's conversion by a wrongful act or disposition of property rights; and damages."'" (Plummer v. Day/Eisenberg, LLP (2010) 184 Cal.App.4th 38, 45.) "'"Conversion is a strict liability tort. The foundation of the action rests neither in the knowledge nor the intent of the defendant. Instead, the tort consists in the breach of an absolute duty; the act of conversion itself is tortious. Therefore, questions of the defendant's good faith, lack of knowledge, and motive are ordinarily immaterial. [Citations.]" [Citation.] The basis of a conversion action "'rests upon the unwarranted interference by defendant with the dominion over the property of the plaintiff from which injury to the latter results. Therefore, neither good nor bad faith, neither care nor negligence, neither knowledge nor ignorance, are the gist of the action.' [Citations.]" [Citation.]' [Citations.] The unauthorized transfer of property constitutes a conversion. [Citation.] Money may be the subject of conversion if the claim involves a specific, identifiable sum; it is not necessary that each coin or bill be earmarked." (Welco Electronics, Inc. v. Mora (2014) 223 Cal.App.4th 202, 208-209.)

While plaintiff's TAC is far from a model of clarity or brevity, read as a whole she has alleged sufficient facts to state a cause of action for conversion. The conversion cause of action incorporates by reference all the previously pleaded paragraphs of the TAC. Plaintiff alleges her ownership or right to possession of "property, funds, and investments." She alleges defendants wrongfully converted her property and she has been damaged as a result. With regard to defendant Cole, she alleges she gave him $114,000 after he told her he would invest the money in his Merrill Lynch account. While she does not allege this specific sum was converted by defendants other than Cole, she alleges the equivalent in alleging "wrongful conversion" of her property, funds, and investments previously identified, which includes the sums of $30,000, $64,000, $10,000, and $10,000 (totaling $114,000). She also alleges defendants failed to return her money.

At a minimum, plaintiff has sufficiently alleged defendants wrongfully exercised dominion over the sum of $114,000. It was error to sustain defendants' demurrer to plaintiff's cause of action for conversion.

Unjust Enrichment

"The elements of an unjust enrichment claim are the 'receipt of a benefit and [the] unjust retention of the benefit at the expense of another.'" (Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1593.) "The theory of unjust enrichment requires one who acquires a benefit which may not justly be retained, to return either the thing or its equivalent to the aggrieved party so as not to be unjustly enriched.' [Citation.] It is not, strictly speaking, a theory of recovery, '"but an effect: the result of a failure to make restitution under circumstances where it is equitable to do so." [Citation.] . . . It is synonymous with restitution.' [Citation.] Ordinarily, restitution is required only if '"the benefits were conferred by mistake, fraud, coercion or request."'" (Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1132.)

Here plaintiff alleges defendants were unjustly enriched by impermissibly removing plaintiff as sole beneficiary of Cole's trust and will, impermissibly recording a deed to add Gleason as a tenant in common, and impermissibly removing plaintiff as Cole's domestic partner on his Benefit Life retirement account and as beneficiary on the Merrill Lynch account even though plaintiff placed her money in the Merrill Lynch account. Plaintiff alleges it would be inequitable for defendants to be allowed to retain the benefits of her property, funds, and investment contributions without being ordered to pay plaintiff a reasonable value therefore.

Plaintiff has alleged sufficient facts to state a claim for unjust enrichment. At a minimum, although not titled as such, plaintiff has stated a claim for constructive trust. (See Peterson v. Cellco Partnership, supra, 164 Cal.App.4th at p. 1595 [we look beyond the claim's label, which is not dispositive when reviewing a trial court's sustaining of a general demurrer"; instead we focus on the complaint's actual gravamen and on its facts alleged].) A "'constructive trust may be imposed in practically any case where there is a wrongful acquisition or detention of property to which another is entitled.'" (Martin v. Kehl (1983) 145 Cal.App.3d 228, 238.) "'A constructive trust is a remedial device primarily created to prevent unjust enrichment; equity compels the restoration to another of property to which the holder thereof is not justly entitled . . . .'" (Id. at p. 237.) "'The essence of the constructive trust theory is to prevent unjust enrichment and to prevent a person from taking advantage of his own wrongdoing.'" (Ibid.) A trial court possesses broad equitable powers to fashion a remedy which would prevent defendant from being unjustly enriched at plaintiff's expense. (Ibid.) Three conditions must be shown to impose a constructive trust: (1) the existence of a res (property or some interest in property), (2) the plaintiff's right to that res, and (3) the defendant's acquisition or detention of the res by some wrongful act. (Calistoga Civic Club v. City of Calistoga (1983) 143 Cal.App.3d 111, 116.) A constructive trust is a proper remedy for fraud and conversion. (Burlesci v. Petersen (1998) 68 Cal.App.4th 1062, 1069.)

The trial court erred in sustaining defendants' demurrer to the unjust enrichment cause of action.

Intentional Interference with Prospective Economic Advantage

"The five elements for intentional interference with prospective economic advantage are: (1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant." (Youst v. Longo (1987) 43 Cal.3d 64, 71, fn. 6.) To prove a cause of action for intentional interference with prospective economic advantage a plaintiff must prove that the interference was wrongful, independent of its interfering character. (Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937, 944.) "'[A]n act is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.'" (Ibid.)

Once again plaintiff's pleading is awkward. Plaintiff alleges she had an advantageous business relationship with Cole's Merrill Lynch account which we deem to mean she had an advantageous business relationship with Cole that was manifested in their agreement he would invest her money in his Merrill Lynch account. Plaintiff alleges defendants had knowledge of the relationship, and they interfered with "plaintiff's contracts" by employing undue influence or the use of forgery, which was intentional. Again plaintiff incorporates by reference all previous paragraphs of the TAC. Elsewhere plaintiff alleged actual disruption of her relationship with Cole in the form of, at a minimum, refusing to return monies she invested in the Merrill Lynch account and economic harm proximately caused thereby.

At least with regard to the money plaintiff deposited into Cole's Merrill Lynch account and any returns she might have expected to receive from her cash investment, plaintiff has sufficiently stated a cause of action for intentional interference with prospective economic advantage. The trial court erred in sustaining the demurrer to this cause of action.

The trial court properly denied plaintiff's request for judicial notice. Plaintiff offers no authority for judicially noticing a receipt or letters. (See Evid. Code, §§ 451, 452.) --------

DISPOSITION

The judgment of dismissal in favor of defendants following the sustaining of defendants' demurrers to the TAC without leave to amend is reversed. On remand, the court is directed to enter a new order sustaining the demurrers to the TAC without leave to amend on the intentional interference with expected inheritance, negligence, and negligent infliction of emotional distress causes of action, and overruling the demurrers as to all other causes of action. Plaintiff shall recover her costs on appeal.

IKOLA, J. WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.


Summaries of

Anderson v. Gleason

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Sep 12, 2017
G052897 (Cal. Ct. App. Sep. 12, 2017)
Case details for

Anderson v. Gleason

Case Details

Full title:PARISA ANDERSON, Plaintiff and Appellant, v. LORI GLEASON et al.…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Date published: Sep 12, 2017

Citations

G052897 (Cal. Ct. App. Sep. 12, 2017)