On 05/04/2018 SUZANNE PATRICIA PORRAZZO filed a Personal Injury - Motor Vehicle lawsuit against MARYAN CECILIA BAKER. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are SAMANTHA JESSNER and CHRISTOPHER K. LUI. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
CHRISTOPHER K. LUI
PORRAZZO SUZANNE PATRICIA
DOES 1 TO 100
BAKER MARYAN CECILIA
BAKER MARYAN CECILIA AKA MARYAN BAKER
PORRAZZO SUZANNE P.
PORRAZZO SUZANNE PATRICIA
OVERING MICHAEL S.
GORDON JOHN L.
7/24/2020: Minute Order - MINUTE ORDER (RULING ON SUBMITTED MATTER)
7/13/2020: Case Management Statement
7/14/2020: Reply - REPLY TO OPPOSITION TO MOTION TO DISQUALIFY
7/17/2020: Objection - OBJECTION OBJECTIONS TO DECLARATION OF DEFENDANT MARYAN BAKER FILED IN SUPPORT OF DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION TO DISQUALIFY
6/9/2020: Request for Judicial Notice
4/27/2020: Minute Order - MINUTE ORDER (COURT ORDER RE: NOTICE OF CONTINUANCE OF HEARING(S) DUE TO CO...)
4/27/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE: NOTICE OF CONTINUANCE OF HEARING(S) DUE TO CO...) OF 04/27/2020
3/13/2020: Motion to Disqualify Counsel
3/20/2020: Minute Order - MINUTE ORDER (COURT ORDER RE: CONTINUANCE OF THE HEARING ON MOTION TO DISQU...)
2/21/2020: Notice of Change of Address or Other Contact Information
2/21/2020: Opposition - OPPOSITION TO DEFENDANT'S DEMURRER TO FIRST AMENDED COMPLAINT
2/21/2020: Case Management Statement
3/2/2020: Notice of Posting of Jury Fees
7/18/2019: Substitution of Attorney
8/15/2019: Amended Complaint
9/25/2019: Substitution of Attorney
9/30/2019: Minute Order - MINUTE ORDER (COURT ORDER REFERRING CASE TO DEPARTMENT 1 FOR TRANSFER)
5/4/2018: NOTICE OF PENDENCY OF ACTION (LIS PENDENS)
Hearing11/20/2020 at 09:00 AM in Department 76 at 111 North Hill Street, Los Angeles, CA 90012; Case Management ConferenceRead MoreRead Less
Docketat 3:00 PM in Department 76, Christopher K. Lui, Presiding; Ruling on Submitted MatterRead MoreRead Less
DocketCertificate of Mailing for ((Ruling on Submitted Matter) of 07/24/2020); Filed by ClerkRead MoreRead Less
DocketMinute Order ( (Ruling on Submitted Matter)); Filed by ClerkRead MoreRead Less
Docketat 1:30 PM in Department 76, Christopher K. Lui, Presiding; Hearing on Motion to Disqualify Counsel - Held - Taken under SubmissionRead MoreRead Less
Docketat 1:30 PM in Department 76, Christopher K. Lui, Presiding; Case Management Conference - Not Held - Continued - Court's MotionRead MoreRead Less
DocketMinute Order ( (Case Management Conference; Hearing on Motion to Disqualify C...)); Filed by ClerkRead MoreRead Less
DocketObjection (OBJECTIONS TO DECLARATION OF DEFENDANT MARYAN BAKER FILED IN SUPPORT OF DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION TO DISQUALIFY); Filed by Suzanne Patricia Porrazzo (Plaintiff)Read MoreRead Less
DocketReply (to Opposition to Motion to Disqualify); Filed by Suzanne Patricia Porrazzo (Plaintiff)Read MoreRead Less
DocketCase Management Statement; Filed by Maryan Cecilia Baker (Defendant)Read MoreRead Less
DocketComplaint (1st); Filed by Suzanne Patricia Porrazzo (Plaintiff)Read MoreRead Less
DocketAmended Complaint (1st); Filed by Suzanne Patricia Porrazzo (Plaintiff)Read MoreRead Less
DocketSubstitution of Attorney; Filed by Suzanne Patricia Porrazzo (Plaintiff)Read MoreRead Less
DocketNoticeRead MoreRead Less
DocketComplaint; Filed by Suzanne Patricia Porrazzo (Plaintiff)Read MoreRead Less
DocketNoticeRead MoreRead Less
DocketCOMPLAINT FOR: INTENTIONAL INTERFERENCE WITH EXPECTATION OF INHERITANCE IN VIOLATION OF CALIFORNIA CIVIL CODE SECTION 3294(C).Read MoreRead Less
DocketNOTICE OF PENDENCY OF ACTION (LIS PENDENS)Read MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketNOTICE OF PENDENCY OF ACTION (LIS PENDENS)Read MoreRead Less
Case Number: BC704895 Hearing Date: July 22, 2020 Dept: 76
Motion To Disqualify
Request For Judicial Notice
Although Plaintiff requests in her Reply that the Court disregard the late-filed opposition, because Plaintiff has not demonstrated prejudice from the filing of the opposition on June 9, 2020, the Court will consider the Opposition and the Reply on the merits.
1. Re: Violation of the California Rules of Professional Conduct.
Additionally, a “violation of a rule of the State Bar Rules of Professional Conduct does not necessarily compel disqualification.” (Hetos, supra, 110 Cal.App.4th at p. 47, citing Gregori, supra, 207 Cal.App.3d at p. 303.) In fact, we found no case which permits a court to disqualify a lawyer for ethical violations when the nonmoving party wishes to continue the representation and the representation does not harm the opposing party's interest. A court is not powerless to act, however, in the face of such possible ethical violations; it has the option to report an attorney it believes has acted unethically to the bar for discipline. Although others in Wife's position may have acted differently, we must respect Wife's choice to retain Lawyer. (See San Francisco, supra, 38 Cal.4th at p. 851 [“clients have a right to retain their chosen counsel”]; see also Sharp v. Next Entertainment Inc. (2008) 163 Cal.App.4th 410, 430 [78 Cal. Rptr. 3d 37] [recognizing “‘the autonomy of individuals to make reasoned judgments about the trade-offs that are at stake’” after they are informed of counsel's potential conflict].)
Given Wife's desire to retain Lawyer, Husband's lack of standing, no authority requiring disqualification, and the importance of respecting a client's right to counsel, we reverse.
(In re Marriage of Murchison (2016) 245 Cal.App.4th 847, 853-54.)
“A ‘standing’ requirement is implicit in disqualification motions.” (Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1356 [114 Cal. Rptr. 3d 301] (Great Lakes).) “Generally, before the disqualification of an attorney is proper, the complaining party must have or must have had an attorney-client relationship with that attorney.” (Ibid.) In the absence of an attorney-client relationship, “some sort of confidential or fiduciary relationship must exist or have existed.” (Ibid.) “Thus, a moving party must have standing, that is, an invasion of a legally cognizable interest, to disqualify an attorney.” (Id. at p. 1357.)
Although we have found no cases which directly prohibit a party without such a relationship from moving for disqualification, case law shows parties moving for disqualification had standing and the standing was due to the relationship between the moving party and the targeted counsel. (See, e.g., Acacia Patent Acquisition, LLC v. Superior Court (2015) 234 Cal.App.4th 1091 [184 Cal. Rptr. 3d 583] [moving party challenged successive representation]; In re Charlisse C. (2008) 45 Cal.4th 145, 159–161 [84 Cal. Rptr. 3d 597, [*852] 194 P.3d 330] [moving party challenged concurrent representation]; Chronometrics, Inc. v. Sysgen, Inc. (1980) 110 Cal.App.3d 597 [168 Cal. Rptr. 196] (Chronometrics) [opposing counsel knew confidential information about moving party].) Even under a minority view, as explained in Colyer v. Smith (C.D.Cal. 1999) 50 F.Supp.2d 966, 971, a moving “nonclient must establish a ‘personal stake’ … that is sufficient to satisfy the standing requirements of article III of the United States Constitution.” (Great Lakes, supra, 186 Cal.App.4th at p. 1357.) Here, Husband does not argue his relationship with Lawyer creates a risk of harm to him. (See also Hetos Investments, Ltd. v. Kurtin (2003) 110 Cal.App.4th 36, 49 [1 Cal. Rptr. 3d 472] (Hetos) [disqualification improper in part when moving party failed to explain how continued representation would “negatively impact the outcome of the case, with respect to himself,” and only perceivable harm would be to represented party].) Because Husband does not have a “personal stake” in disqualifying Lawyer, he has no standing.
(In re Marriage of Murchison (2016) 245 Cal.App.4th 847, 851-52 [bold emphasis added].)
Plaintiff cites Borissof v. Taylor & Faust (2004) 33 Cal.4th 523 for the proposition that Driskell, Gordon & Fetchik’s duty runs to the fiduciary (Plaintiff) as the conservator of the person, who succeeded to the attorney-client relationship between her mother, Elizabeth, and the Driskell firm. Plaintiff argues that, in effect, a relationship ran from the Driskell firm to Suzanne when Suzanne became the fiduciary of her mother. Plaintiff argues that if litigation had arisen during Elizabeth’s life which pertained to work allegedly performed by the Driskell firm on behalf of Elizabeth, Plaintiff Suzanne was the person who held the power of that relationship. This would purportedly form an attorney-client relationship between Suzanne and Driskell, and that, to the extent Driskell’s relationship with Maryan created a conflict in this relationship with Elizabeth, it was Suzanne who succeeded to Elizabeth’s position. This argument is not only confusing, but is not supported by any citation to authority.
Borissof involved a successor fiduciary of an estate in probate asserting a professional negligence claim against tax counsel engaged by a predecessor fiduciary exclusively to perform tax work for the estate. (See Stine v. Dell'Osso (2014) 230 Cal.App.4th 834, 840-42.)
The question, stated the Supreme Court, was: “‘May a successor fiduciary of an estate in probate assert a professional negligence claim against tax counsel whom a predecessor fiduciary engaged exclusively to perform tax work for the estate?’” (Borissoff, supra, 33 Cal.4th at p. 528, fn. omitted.) After reviewing the provisions of the Probate Code discussed above, the court “answer[ed] it in the affirmative.” (Borissoff, supra, 33 Cal.4th at p. 529.) “[T]he absence of privity, viewed as an impediment to standing, is a gap the Legislature has filled” with Probate Code sections 8524, subdivision (c), 9820, subdivision (a), and 10801, providing successor fiduciaries have “the powers and duties … that the former [fiduciary] would have had” (id., § 8524, subd. (c)), including the power to “‘[c]ommence and maintain actions … for the benefit of the estate.’” (33 Cal.4th at p. 530.)
Thus, Borissoff's holding is not limited to a malpractice claim based on an attorney's failure to follow a predecessor fiduciary's direct instruction. In fact, nothing in the opinion indicates either the initial or successor fiduciary ever specifically asked any attorney to file an extension form. (See Borissoff, supra, 33 Cal.4th at pp. 527–528.) Rather, the Supreme Court's holding is grounded on the statutory provisions ensuring a successor fiduciary can seamlessly take over the fiduciary role and protect the interests of the estate, including recovering for losses caused by legal malpractice occurring during the tenure of a prior fiduciary. (Id. at p. 531.)
(Stine v. Dell'Osso (2014) 230 Cal.App.4th 834, 840-42.)
Clearly, this fact situation is not present here, as Plaintiff fails to demonstrate that she was named as a successor fiduciary to a predecessor fiduciary of a probate estate.
Nor does Plaintiff demonstrate that she, as Elizabeth’s conservator, retained the Driskell firm as counsel for the fiduciary/conservator. “[W]hen a fiduciary hires an attorney for guidance in administering a trust, the fiduciary alone, in his or her capacity as fiduciary, is the attorney's client.” Stine v. Dell'Osso (2014) 230 Cal.App.4th 834, 846. There is no evidence that Plaintiff knowingly retained the Driskell firm as counsel to represent her as a fiduciary with respect to Elizabeth’s affairs. The attorney-client relationship can only be created by contract, express or implied. (Koo v. Rubio's Restaurants, Inc. (2003) 109 Cal.App.4th 719, 729.)
Here, Bartlett and Koo failed to meet their burden, because Freudenberger's declaration alone did not suffice to create an attorney-client relationship. An attorney-client relationship is not created by the unilateral declaration of one party to the relationship. (See Fox v. Pollack (1986) 181 Cal. App. 3d 954, 959, [226 Cal. Rptr. 532] [individuals cannot unilaterally create an attorney-client relationship without the agreement of the attorney].) Rather, the relationship can only be created by contract, express or implied. ( Responsible Citizens v. Superior Court (1993) 16 Cal.App.4th 1717, 1732, [20 Cal. Rptr. 2d 756]; Fox v. Pollack, supra, 181 Cal. App. 3d at p. 959.)
(Koo v. Rubio's Restaurants, Inc. (2003) 109 Cal.App.4th 719, 729.)
Moreover, even if the Driskell firm somehow represented Plaintiff as a fiduciary or conservator with respect to Elizabeth’s affairs, this would not present a conflict of interest in representing Defendant Maryan Baker in this lawsuit against Plaintiff Suzanne Porrazzo, which is brought in Plaintiff’s individual capacity, not as a fiduciary or conservator vis-à-vis Elizabeth. (Stine, supra, 230 Cal.App.4th at 846.)
That an individual who is a fiduciary wears two distinct and separate hats—one as a fiduciary and one as an individual—is reflected, as well, in the law regarding the attorney/client relationship, as we have discussed. “[W]hen a fiduciary hires an attorney for guidance in administering a trust, the fiduciary alone, in his or her capacity as fiduciary, is the attorney's client.” (Borissoff, supra, 33 Cal.4th at p. 529, italics added.) Thus, a trustee “may be authorized to employ attorneys to assist in administration of trust affairs, in which event an attorney-client relationship exists between the attorney and trustee (in the trustee's representative capacity).” (Vapnek et al., Cal. Practice Guide: Professional Responsibility, supra, ¶ 3:118, p. 3-48 (rev. # 1, 2012), italics added.) “Therefore, a lawyer who represents a fiduciary in the client's capacity as fiduciary (Client X) has no conflict of interest in representing another client (Client Y) adverse to Client X in [his or her] personal capacity.” (Streisand, Malpractice Melee: Fending Off the Disgruntled and Disappointed, an Estate Planner's Field Guide (2010–2011) 3 Est. Plan. & Community Prop. L.J. 241, 280.)
(Stine v. Dell'Osso (2014) 230 Cal.App.4th 834, 846 [bold emphasis added].)
This ground for disqualification is not persuasive.
2. Re: Defendant’s Lawyers Are Witnesses.
Plaintiff argues that the role of advocate and witness are entirely inconsistent and will give the appearance of impropriety in the outcome of trial. Plaintiff argues that she will suffer severe prejudice if Defendant’s attorneys are all testifying themselves. Plaintiff’s argument is not persuasive. Rather, the jury may take into consideration Defendant’s counsel’s bias as witnesses whose interests are aligned with their client as alleged participants in a scheme to unduly influence decedent Elizabeth.
Indeed, the fact that an opponent’s attorney may also be a witness does not require disqualification if the client consents to such representation. Here, the client is Defendant Maryan Cecilia Baker, who has the ability to consent to the Driskell firm representing her despite the likelihood that they will testify as witnesses. (Cal. Rules of Prof'l Conduct, Rule 3.7; Smith, Smith & Kring v. Superior Court (1997) 60 Cal.App.4th 573, 580-81.) The Court exercises its discretion not to recuse counsel on this ground.
This ground for disqualification is not persuasive.
(a) A lawyer shall not act as an advocate in a trial in which the lawyer is likely to be a witness unless:
(1) the lawyer's testimony relates to an uncontested issue or matter;
(2) the lawyer's testimony relates to the nature and value of legal services rendered in the case; or
(3) the lawyer has obtained informed written consent from the client. If the lawyer represents the People or a governmental entity, the consent shall be obtained from the head of the office or a designee of the head of the office by which the lawyer is employed.
(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm* is likely to be called as a witness unless precluded from doing so by rule 1.7 or rule 1.9.
(Cal. Rules of Prof'l Conduct, Rule 3.7 [bold emphasis added].)
[A]s we have noted, an attorney acting as both advocate and witness in a client's case is tolerable. Rule 5-210 of the California Rules of Professional Conduct permits HB&B to act as both advocate and witness since the firm obtained SS&K's consent and "the fact that the client has consented to the dual capacity must be given great weight." (Reynolds v. Superior Court, supra, 177 Cal. App. 3d at p. 1028.) Furthermore, "the smell test" is not consonant with the current state of the law. Although a court has discretion to recuse an attorney who may testify, in exercising that discretion, the court must weigh the competing interests of the parties against potential adverse effects on the integrity of the proceeding before it and "should resolve the close case in favor of the client's right to representation by an attorney of his or her choice . . . ." (Lyle v. Superior Court, supra, 122 Cal. App. 3d at p. 482; see also Reynolds v. Superior Court, supra, 177 Cal. App. 3d at p. 1028.) First, the court must consider the combined effects of the strong interest parties have in representation by counsel of their choice, and in avoiding the duplicate expense and time-consuming effort involved in replacing counsel already familiar with the case. (Lyle v. Superior Court, supra, 122 Cal. App. 3d at p. 481; People ex rel. [*581] Younger v. Superior Court (1978) 86 Cal. App. 3d 180, 201 [150 Cal. Rptr. 156].) "[I]t must be kept in mind that disqualification usually imposes a substantial hardship on the disqualified attorney's innocent client, who must bear the monetary and other costs of finding a replacement." (Gregori v. Bank of America (1989) 207 Cal. App. 3d 291, 300 [254 Cal. Rptr. 853].) Second, the court must consider the possibility counsel is using the motion to disqualify for purely tactical reasons. ( Comden v. Superior Court, supra, 20 Cal. 3d at p. 915.) Should counsel freely be able to disqualify opposing counsel simply by calling them as witnesses, it would "pose the very threat to the integrity of the judicial process that [motions to disqualify] purport to prevent." (Gregori v. Bank of America, supra, 207 Cal. App. 3d at pp. 300-301.) " 'After all, in cases that do not involve past representation [conflict cases] the attempt by an opposing party to disqualify the other side's lawyer must be viewed as part of the tactics of an adversary proceeding.' " ( Graphic Process Co. v. Superior Court (1979) 95 Cal. App. 3d 43, 52, fn. 5 [156 Cal. Rptr. 841], quoting J. P. Foley & Co., Inc. v. Vanderbilt (2d Cir. 1975) 523 F.2d 1357, 1360.) Finally, " '[W]henever an adversary declares his intent to call opposing counsel as a witness, prior to ordering disqualification of counsel, the court should determine whether counsel's testimony is, in fact, genuinely needed.' " (Reynolds v. Superior Court, supra, 177 Cal. App. 3d at p. 1027, quoting Connell v. Clairol, Inc. (N.D.Ga. 1977) 440 F. Supp. 17, 18, fn. 1.) In determining the necessity of counsel's testimony, the court should consider "the significance of the matters to which he might testify, the weight his testimony might have in resolving such matters, and the availability of other witnesses or documentary evidence by which these matters may be independently established." ( Comden v. Superior Court, supra, 20 Cal. 3d at p. 913; Graphic Process Co. v. Superior Court, supra, 95 Cal. App. 3d at p. 50.) The court should also consider whether it is the trial attorney or another member of his or her firm who will be the witness.
(Smith, Smith & Kring v. Superior Court (1997) 60 Cal.App.4th 573, 580-81 [bold emphasis and underlining added].)
3. Re: Conflict of Interest Between Defendant and Defense Counsel’s Other Client—Decedent and Plaintiff.
Plaintiff argues that there has been no written waiver of the conflict of interest. Plaintiff argues that the Rules of Professional Conduct require written consent of the client which is impossible as Elizabeth Porrazzo is deceased. This argument is not persuasive. Even assuming Elizabeth could validly retain Driskell, Gordon & Fetchick as counsel for purposes of estate planning despite her mental incompetence, any such attorney-client relationship terminated upon her death on April 30, 2018. (1AC, ¶ 6.) The attorney-client relationship terminates upon the death of the client. “Power and authority of an attorney dies with the client. (Citation omitted.)” (Herring v. Peterson (1981) 116 Cal.App.3d 608, 612; see also Swartfager v. Wells (1942) 53 Cal.App.2d 522, 528 (“The authority of an attorney necessarily ceases with the death of the client, for no one can act for a dead man.”)
Accordingly, whether or not Elizabeth could have, or actually did waive future conflicts became a moot point upon her death. Notably, the Estate of Elizabeth Porrazzo is not a party to this action. There is no showing of a conflict that would require disqualification on this basis.
The Court also notes that is inherent power to disqualify counsel is limited to those situations where the misconduct would have a continuing effect on the judicial proceedings. (In re Marriage of Murchison (2016) 245 Cal.App.4th 847, 853-54.) The Court does not find such circumstances to be present here.
Regardless of Husband's standing, the court reasoned it had independent inherent authority to disqualify Lawyer. A trial judge has “the power inherent in every court ‘[t]o control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.’” (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145 [86 Cal. Rptr. 2d 816, 980 P.2d 371] (SpeeDee), quoting Code Civ. Proc., § 128, subd. (a)(5).) While acknowledging this discretion necessarily “involve[s] a conflict between the clients' right to counsel of their choice and the need to maintain ethical standards of professional responsibility” (SpeeDee, at p. 1145), the court agreed with SpeeDee that the “paramount concern must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar” (ibid.). Paraphrasing canon 3D(2) of the California Code of Judicial Ethics, the trial court concluded that it had a duty to “‘take appropriate corrective action’” when it had “‘personal knowledge that a lawyer has violated any provision of the Rules of Professional Conduct.’”
Although we agree with those general principles, a court is limited to exercising this inherent authority only when the misconduct “will have a continuing effect on the judicial proceedings.” (Chronometrics, supra, 110 Cal.App.3d at p. 607; accord, Koo v. Rubio's Restaurants, Inc. (2003) 109 Cal.App.4th 719, 734 [135 Cal. Rptr. 2d 415].) If a court's purpose is merely “to punish a transgression which has no substantial continuing effect on the judicial proceedings … , neither the court's inherent power to control its proceedings nor Code of Civil Procedure section 128 can be stretched to [*853] support the disqualification.” (Chronometrics, at p. 607.) Simply stated, “‘the purpose of a disqualification order must be prophylactic, not punitive.’” (Oaks Management Corporation v. Superior Court (2006) 145 Cal.App.4th 453, 467 [51 Cal. Rptr. 3d 561], quoting Gregori v. Bank of America (1989) 207 Cal.App.3d 291, 308–309 [254 Cal. Rptr. 853] (Gregori).)
(In re Marriage of Murchison (2016) 245 Cal.App.4th 847, 853-54 [bold emphasis added].)
Accordingly, the motion to disqualify Defendant’s counsel is DENIED.
Defendant’s request for monetary sanctions against Plaintiff Suzanne Porrazzo pursuant to CCP § 128.5 is DENIED. A motion for § 128.5 sanctions must be made as a separate motion and comply with the 21-day safe harbor provision to give Plaintiff an opportunity to withdraw the motion. (Code Civ. Proc., § 128.5(f)(1)(A) & (B).)
 Plaintiff refers to Defendant Baker as Maryan in the motion, and to decedent Elizabeth Porrazzo as Elizabeth.
 If Defendant has not done so, but indicates that she will, Defendant may present such written consent to the Court.
 Now Rule 3.7.
Case Number: BC704895 Hearing Date: March 06, 2020 Dept: 76
Meet and Confer
The Declaration of Robert Lee Driskell reflects Plaintiff, in pro per, did not respond to meet and confer efforts. This satisfies CCP § 430.41(a)(3)(B).
Request For Judicial Notice
Plaintiff’s request that the Court take judicia notice of the Petition for probate filed by Plaintiff in 19STPB02412 is GRANTED per Evid. Code § 452(d)(court records).
Defendant Maryan Baker demurs to the First Amended Complaint (“1AC”).
1. First Cause of Action (Intentional Interference with Expectation of Inheritance).
A. Re: This Cause of Action Is Only Permitted In Narrow Circumstances, Which Are Not Present Here.
Defendant argues that, because Plaintiff has an adequate remedy in probate court, she cannot state a cause of action in civil court. However, in setting forth the elements of the then-newly-recognized cause of action for intentional interference with expectation of inheritance, the court in Beckwith v. Dahl did not list “lack of an adequate remedy in probate court” as an element of the cause of action:
Having decided we can recognize a cause of action for IIEI, we turn to whether Beckwith sufficiently stated the cause of action in his complaint. To state a claim for IIEI, a plaintiff must allege five distinct elements. (Munn, supra, 185 Cal.App.4th at p. 588.) First, the plaintiff must plead he had an expectancy of an inheritance. It is not necessary to allege that “one is in fact named as a beneficiary in the will or that one has been devised the particular property at issue. [Citation.] That requirement would defeat the purpose of an expectancy claim. … It is only the expectation that one will receive some interest that gives rise to a cause of action. [Citations.]” (Plimpton v. Gerrard (Me. 1995) 668 A.2d 882, 885–886.) Second, as in other interference torts, the complaint must allege causation. “This means that, as in other cases involving recovery for loss of expectancies … there must be proof amounting to a reasonable degree of certainty that the bequest or devise would have been in effect at the time of the death of the testator … if there had been no such interference.” (Rest.2d Torts, § 774B, com. d, p. 59.) Third, the plaintiff must plead intent, i.e., that the defendant had knowledge of the plaintiff's expectancy of inheritance and took deliberate action to interfere with it. (See Carlson v. Warren (Ind.Ct.App. 2007) 878 N.E.2d 844, 854.) Fourth, the complaint must allege 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. (Doughty v. Morris (Ct.App. 1994) 117 N.M. 284 [871 P.2d 380, 383–384].) Finally, the plaintiff must plead he was damaged by the defendant's interference. (Munn, supra, 185 Cal.App.4th at p. 588.)
Additionally, an IIEI defendant must direct the independently tortious conduct at someone other than the plaintiff. The cases firmly indicate a [*1058] 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.” (Whalen v. Prosser (Fla.Dist.Ct.App. 1998) 719 So.2d 2, 6, italics added (Whalen).) 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. (Rest.2d Torts, § 774B, com. b, p. 58; see Schilling v. Herrera (Fla.Dist.Ct.App. 2007) 952 So.2d 1231 [defendant unduly influenced testator to execute a new will in her favor]; Cardenas v. Schober (2001) 2001 PA Super 253 [783 A.2d 317, 326] [defendant's intentional failure to adhere to an agreement he made with testator to draft a will in favor of the plaintiffs constituted fraud and supported a claim for intentional interference with expected inheritance].) Even in the relatively few IIEI cases we found where the defendant's wrongful conduct was directed at someone other than the testator, the defendant's interference was never directed only at the plaintiff. (See Allen, supra, 974 P.2d at p. 205 [defendant interfered with testator's attempts to change his will by falsely telling testator's attorney testator was not lucid].)
We must also emphasize the tort of IIEI is one for wrongful interference with an expected inheritance and not an independent action for the underlying tortious conduct such as fraud or undue influence. The underlying tort is only the means by which the interference occurs. This distinction explains the development of the tort as one designed to provide a remedy for disappointed legatees. In the absence of an IIEI cause of action, when tortious conduct causing injury to an expected legatee is directed at the testator, the injured party has no independent action in tort. Thus, probate remedies developed to provide a remedy and method of challenging a tortiously induced bequest even when no independent tort action was available. (See Prob. Code, § 6104 [“The execution or revocation of a will or a part of a will is ineffective to the extent the execution or revocation was procured by duress, menace, fraud, or undue influence.”].) Similarly, the tort of IIEI developed to provide a remedy when both of these avenues failed, i.e., when the plaintiff had no independent tort action because the underlying tort was directed at the testator and when the plaintiff had no adequate remedy in probate. “[T]he common law court has created this cause of action not primarily to protect the beneficiary's inchoate rights, but to protect the deceased testator's former right to dispose of property freely and without improper interference. In a sense, the beneficiary's action is derivative of the testator's rights.” (Whalen, supra, 719 So.2d at p. 6.) Thus, when the defendant's tortious conduct is directed at the plaintiff, rather than at the testator, the plaintiff has an independent tort claim against the defendant and asserting the IIEI tort is unnecessary and superfluous. (See, e.g., Dryden v. Tri-Valley Growers (1977) 65 Cal.App.3d 990, 998–999 [135 Cal. Rptr. 720] [refusing to allow an action [*1059] for interference with contractual relationship by one party to a contract against the other party because such an action is essentially one for breach of contract].)
Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1057-59 (bold emphasis added).
Accordingly, the Court declines to require Plaintiff to plead “lack of an adequate remedy in probate court” as an element of the cause of action.
In any event, because Plaintiff alleges that Defendant actually sold the San Dimas home (1AC, ¶ 65), probate would not afford Plaintiff an adequate remedy, because the San Dimas home would not longer be part of decedent’s estate. Also, Defendant allegedly sold both of Elizabeth’s unencumbered homes, and commingled the funds with her own to purchase a new home in Rancho Mirage. 1AC, ¶ 63.
Despite Plaintiff’s argument to the contrary, Munn v. Briggs is not “bad law,” according to Shepard’s. It appears, however, that the Munn court’s discussion of the adequate remedy in probate was a justification for declining to adopt the tort of interference with an expected inheritance. Because Munn did not establish that tort, its reference to lack of an adequate remedy in probate cannot be seen as establishing lack of an adequate remedy in probate as an element of the tort recognized two years later in Beckwith.
On this record, we conclude James had an adequate remedy in probate to challenge the codicil without resort to the tort of interference with an expected inheritance. As Janell's child and beneficiary, James had standing in [*592] probate (see Prob. Code, § 48, subd. (a)(1); Estate of Lind (1989) 209 Cal.App.3d 1424, 1430–1431 [257 Cal. Rptr. 853]), adequate notice of the probate petition and ample opportunity to timely challenge in probate the validity of the codicil. If James had moved in probate to set aside the $ 1 million gifts each to Jana and Jack and succeeded, Janell's estate—including the voided gifts to Jana and Jack—would then have been divided equally between James and Carlyn. In that instance, James's expected inheritance would have been fully reinstated.
. . .
Our holding in this case is limited. Because we conclude James had an adequate remedy in probate to challenge the validity of Janell's codicil, we decline under the present circumstances to adopt the tort of interference with an expected inheritance.
Munn v. Briggs (2010) 185 Cal.App.4th 578, 591-592, 593 (italics in original).
As to the elements of the tort set forth in Beckwith, the 1AC alleges as follows:
1. The plaintiff must plead she had an expectancy of an inheritance.
Plaintiff pleads that she had an expectation of inheritance as decedent Elizabeth’s daughter, and Elizabeth had signed a will in 2003 that gave Plaintiff the San Dimas house and also made Plaintiff executor of her will. 1AC, ¶¶ 58, 59. Elizabeth also evidenced an intent to maintain Plaintiff as the heir to the San Diego house in an unsigned trust drafted in August 2015. 1AC, ¶ 59.
This element is adequately pled.
2. The complaint must allege causation, i.e., a reasonable degree of certainty that the bequest or devise would have been in effect at the time of the death of the testator if there had been no such interference.
Plaintiff alleges that, given Elizabeth’s 2003 will and proposed August 2015 trust, there was a high probability Plaintiff would receive the San Dimas residence and all of its contents upon the Elizabeth’s death. 1AC, ¶ 60.
This element is adequately pled.
3. The plaintiff must plead intent, i.e., that the defendant had knowledge of the plaintiff's expectancy of inheritance and took deliberate action to interfere with it.
Plaintiff alleges that Defendant knew that their mother, Elizabeth, wanted to give the San Dimas home and all of its contents to Plaintiff, and was determined to do everything in her power to stop this from occurring. 1AC, ¶ 61. Defendant allegedly took Elizabeth to a new and different attorney to change the will. Id.
This element is adequately pled.
4. The complaint must allege 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.
Although Plaintiff does not expressly cite the Financial Elder Abuse Act, she alleges facts showing that Defendant engaged in financial elder abuse by isolating and lying to Elizabeth—whom Defendant knew suffered from dementia—in order to induce Elizabeth to sign a new trust that would benefit Defendant. 1AC, ¶¶ 62, 64.
In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) Described as a “cornerstone jurisprudential polic[y], … complaints are to be liberally construed … and disputes should be resolved on their merits.” (Citation omitted.) “A fact may appear by inference as well as by direct allegation.” (Citation omitted.) [*1142] “Consistent with the applicable rules of pleading, we adopt a liberal construction of plaintiffs' [proposed] amended complaint, drawing all reasonable inferences in favor of their allegations.” (Citation omitted.) . . .
Rickley v. Goodfriend (2013) 212 Cal.App.4th 1136, 1141-42.
(a) “Financial abuse” of an elder or dependent adult occurs when a person or entity does any of the following:
(1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.
(2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.
(3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Section 15610.70.
(b) A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.
(c) For purposes of this section, a person or entity takes, secretes, appropriates, obtains, or retains real or personal property when an elder or dependent adult is deprived of any property right, including by means of an agreement, donative transfer, or testamentary bequest, regardless of whether the property is held directly or by a representative of an elder or dependent adult.
(d) For purposes of this section, “representative” means a person or entity that is either of the following:
(1) A conservator, trustee, or other representative of the estate of an elder or dependent adult.
(2) An attorney-in-fact of an elder or dependent adult who acts within the authority of the power of attorney.
Welf. & Inst. Code, § 15610.30.
(a) “Undue influence” means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity. In determining whether a result was produced by undue influence, all of the following shall be considered:
(1) The vulnerability of the victim. Evidence of vulnerability may include, but is not limited to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability.
(2) The influencer’s apparent authority. Evidence of apparent authority may include, but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, or other qualification.
(3) The actions or tactics used by the influencer. Evidence of actions or tactics used may include, but is not limited to, all of the following:
(A) Controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep.
(B) Use of affection, intimidation, or coercion.
(C) Initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes.
(4) The equity of the result. Evidence of the equity of the result may include, but is not limited to, the economic consequences to the victim, any divergence from the victim’s prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship.
(b) Evidence of an inequitable result, without more, is not sufficient to prove undue influence.
Welf. & Inst. Code, § 15610.70 (bold emphasis added).
This element is satisfied.
5. The plaintiff must plead she was damaged by the defendant's interference.
Plaintiff alleges that as a result of Defendant’s interference, Elizabeth’s 2003 will was no longer in place, both houses were placed in trust, and Elizabeth’s mother’s house eventually was sold by a professional fiduciary. 1AC, ¶ 65. Plaintiff objected to the sale but could not prevent the sale. Id. Plaintiff alleges that she was deprived of her inheritance of the San Dimas home and all of its contents. Id. at ¶ 66.
This element is satisfied.
6. Defendant directed the independently tortious conduct at someone other than the plaintiff.
As discussed above, Defendant allegedly engaged in Financial Elder Abuse against Plaintiff’s mother, not Plaintiff herself.
This element is satisfied.
Accordingly, this cause of action is properly and sufficiently pled.
B. Re: Another Action Pending.
Although Defendant claims there is already an action pending on these exact same set of facts pending in probate court (Demurrer, Page 3:9-11), Defendant does not offer argument in support of this objection.
In any event, that ground for objection is not well taken, as the party in the Probate Petition is Petitioner Suzanne Patricia Porrazzo, as executor of the Estate of Betty Patricia Porrazzo aka Elizabeth Patricia Porrazzo, Decedent. Maryan Baker is not named as party to that petition, but is only listed as a potential heir or beneficiary.
n2 Code of Civil Procedure section 430.10, subdivision (c), permits a demurrer to be filed on the ground that "[t]here is another action pending between the same parties on the same cause of action." . . .
As Witkin also notes, "[t]he pendency of another action is classified as one of the pleas in abatement or dilatory pleas, and, as such, it is 'not favored.' " (5 Witkin, Cal. Procedure, op. cit. supra, § 921 at p. 358, italics in original.) Among other things, this disfavor is expressed in the rule that " . . the demurrer should not be sustained without leave to amend and the action should not be dismissed." (Ibid.)
Branson v. Sun-Diamond Growers (1994) 24 Cal.App.4th 327, 336 n.2.
This ground for demurrer is not persuasive.
Accordingly, the demurrer to the first cause of action is OVERRULED.
2. Second Cause of Action (Civil Claim Under Penal Code § 496(c).
A. Re: Penal Code § 496(c) Is Not Applicable In This Situation.
Defendant argues that Penal Code 496(c) applies to receiving stolen property, which does not apply to the facts of this case. Defendant points out that Defendant was never arrested for receiving stolen property and the District Attorney never charged her with receiving stolen property.
(a) Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170. However, if the value of the property does not exceed nine hundred fifty dollars ($950), the offense shall be a misdemeanor, punishable only by imprisonment in a county jail not exceeding one year, if such person has no prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290.
A principal in the actual theft of the property may be convicted pursuant to this section. However, no person may be convicted both pursuant to this section and of the theft of the same property.
Penal Code § 496(a)(bold emphasis added).
The fact that Defendant was never charged with theft or receiving stolen property does not preclude this cause of action. No conviction is required; the determination of violation of Penal Code § 496(a) will be made in the civil action:
The language of section 496(c) is clear and unambiguous. (Bell v. Feibush (2013) 212 Cal.App.4th 1041, 1045–1047 [151 Cal. Rptr. 3d 546].) A criminal conviction is not a prerequisite to recovery of treble damages. All that is required for civil liability to attach under section 496(c), including entitlement to treble damages, is that a “violation” of subdivision (a) or (b) of section 496 is found to have occurred. (Bell v. Feibush, at pp. 1045–1047.) A violation may be found to have occurred if the person engaged in the conduct described in the statute. (Lacagnina v. Comprehend Systems, Inc. (2018) 25 Cal.App.5th 955, 970 [236 Cal. Rptr. 3d 641]; Bell v. Feibush, supra, 212 Cal.App.4th at p. 1045 [a “violation” occurs “when the subject engages in” the conduct described in the statute].) While section 496(a) covers a spectrum of impermissible activity relating to stolen property, the elements required to show a violation of section 496(a) are simply that (i) property was stolen or obtained in a manner constituting theft, (ii) the defendant knew the property was so stolen or obtained, and (iii) the defendant received or had possession of the stolen property. (Lacagnina v. Comprehend Systems, Inc., supra, 25 Cal.App.5th at p. 970 [elements of § 496 offense stated].)
Switzer v. Wood (2019) 35 Cal.App.5th 116, 126 (bold emphasis added).
A violation of section 496(a) may, by its own terms, relate to property that has been “stolen” or “that has been obtained in any manner constituting theft or extortion.” (§ 496(a), italics added.) As reflected in Bell v. Feibush, supra, 212 Cal.App.4th at page 1048, the issue of whether a wrongdoer's conduct in any manner constituted a “theft” is elucidated by other provisions of the Penal Code defining theft, such as section 484. In 1927, the Legislature consolidated the crimes of larceny, embezzlement, and theft by false pretense in Penal Code section 484, subdivision (a), under the single term “theft.” (Bell v. Feibush, at p. 1048; see also People v. Vidana (2016) 1 Cal.5th 632, 640–641 [206 Cal. Rptr. 3d 556, 377 P.3d 805] [although the distinctive [*127] substantive elements of each offense remained the same, each constituted the crime of “theft”]; People v. Gomez (2008) 43 Cal.4th 249, 255, fn. 4 [74 Cal. Rptr. 3d 123, 179 P.3d 917].) Section 484, subdivision (a), states as follows: “Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft.” (Italics added.)
In Bell v. Feibush, supra, 212 Cal.App.4th 1041, the trial court awarded treble damages to the plaintiff under section 496(c) based on evidence presented in a default prove-up hearing that the defendant had committed theft by false pretenses in violation of section 496(a). (Bell v. Feibush, at pp. 1043–1044.) The defendant appealed on several grounds. Bell v. Feibush affirmed the award of treble damages, holding that (i) theft by false pretenses constituted a violation of section 496(a), and (ii) a criminal conviction was not a prerequisite to civil liability for treble damages. (Bell v. Feibush, at pp. 1045–1046, 1048–1049.) The court observed that where a violation of section 496(a) or section 496, subdivision (b) is established in a civil action, as was the case there, “a person injured by the violation may recover treble damages under section 496(c).” (Bell v. Feibush, at p. 1045.) Further, in affirming the treble damage recovery Bell v. Feibush rejected the defendant's policy argument that allowing treble damages under section 496(c) would circumvent traditional limits on civil remedies: “Our decision to affirm the default judgment is based on straightforward statutory interpretation.” (Bell v. Feibush, at p. 1049.) That being the case, such “policy concerns” would have to be addressed to the Legislature. (Ibid.) In sum, since a violation of section 496(a) had been shown (i.e.,theft by false pretenses), treble damages were properly awarded under section 496(c).
Switzer, supra, 35 Cal.App.5th at 125-27 (bold emphasis and underlining added).
Here, sufficient facts are pled whereby Defendant took Elizabeth’s personal property, including gems, diamonds, rings and other jewelry, as well as money held in bank accounts. ¶¶ 72, 79. Defendant would be a principal in the actual theft of this personal property, who could be found to have violated Penal Code § 496(a). [It is less clear how Defendant stole real property by having Elizabeth change the trust terms, but Plaintiff may amend to allege these facts.]
This ground for demurrer is not persuasive.
B. Re: Plaintiff Lacks Standing.
Defendant argues that Plaintiff does not have standing to bring a cause of action under Penal Code § 496(c) because there has been no determination that Plaintiff was effectively disinherited by the trust.
(c) Any person who has been injured by a violation of subdivision (a) or (b) may bring an action for three times the amount of actual damages, if any, sustained by the plaintiff, costs of suit, and reasonable attorney’s fees.
Penal Code § 496(c).
“[S]tatutory causes of action must be pleaded with particularity.” Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790. The Court agrees with Defendant that it is unclear how Plaintiff was injured by Defendant’s alleged theft of Elizabeth’s property. Plaintiff must amend to allege how she was thereby injured.
This ground for demurrer is persuasive.
The demurrer to the second cause of action is SUSTAINED with leave to amend.
Defendant claims that this action was intended to harass, intimidate, and cause undue expense and delay. The Code of Civil Procedure provides other avenues to address such conduct, but.a contention of an improper motive in prosecuting a civil action is not a basis for demurrer.