Case Name: Lena Barbaccia, et al. v. Valerie Previte
Case No.: 17CV315122

I. Background

This lawsuit arises from a dispute over the management of trust property.

In 1982, plaintiff Lena Barbaccia and her husband Cyril G. Barbaccia, now deceased, established a trust (the “Barbaccia Trust”). (First Amended Complaint (“FAC”), ¶ 1.) Using two entities held by the Barbaccia Trust, namely plaintiffs Barbaccia Properties Holdings, LLC and CGB Investments, LLC, the Barbaccias owned and managed four commercial properties: the Palm Valley Apartments; the Magic Sands mobile home park; Villa Teresa mobile home park; and La Buona Vita mobile home park. (FAC, ¶¶ 3–4, 7–8.)

The Barbaccias’ family friend Jack Previte managed their businesses and finances for many years. (FAC, ¶ 7.) In 2004, they executed a 10-year management agreement delegating their responsibilities as trustees of the Barbaccia Trust to Mr. Previte and fixing compensation for his services as a business manager. (FAC, ¶ 8.)

Mrs. Barbaccia and her cotrustee, plaintiff John J. Guerra Jr. (“Guerra”), allege Mr. Previte and his wife, defendant Valerie Previte, mismanaged and misappropriated the trust assets under their care. (FAC, ¶ 23.)

In 2007, Mr. Previte purportedly forged a novation of the management agreement executed in 2004. (FAC, ¶ 19.) Under the new agreement, Mr. Previte would receive incentive payments in the amount of six percent of the sales price of the Barbaccias’ commercial properties instead of the fixed compensation set forth in the 2004 agreement. (FAC, ¶ 19.)

Thereafter, Mr. Previte misappropriated fees received by Barbaccia Properties Holdings, LLC for management of the Palm Valley Apartments as well as $1,359,904 that entity received in connection with the repayment of a loan. (FAC, ¶ 23.) He also used trust assets for his personal benefit by taking $425,000 to pay off his home mortgage and failing to provide reimbursement for dues and miscellaneous charges incurred at several country clubs. (FAC, ¶ 23.) To conceal his embezzlement, he used many different bank accounts and failed to properly account for transfers of funds. (FAC, ¶ 23.) The plaintiffs allege Valerie Previte is liable for her husband’s misconduct as cotrustee of the Previte Trust through which they claimed to own many of the assets misappropriated from the Barbaccia Trust. (FAC, ¶¶ 24–28.)

Mrs. Barbaccia, Guerra, and the holding entities assert causes of action against defendant Valerie Previte, individually and as trustee of the Previte Trust, for: (1) rescission and restitution; (2) declaratory relief; (3) conversion; (4) common counts; (5) imposition of constructive trust; (6) financial elder abuse; (7) breach of fiduciary duty; (8) receiving stolen property; and (9) violation of California’s unfair competition law (the “UCL”).

Valerie Previte filed a cross-complaint asserting claims against Mrs. Barbaccia, Guerra, and Barbaccia Properties Holdings, LLC.

According to the allegations in the cross-complaint, the Barbaccias honored the 2007 novation of the management agreement until Mr. Barbaccia died in 2016. (Cross-Compl., ¶ 6.) Mrs. Previte alleges that when her husband died several months before Mr. Barbaccia did, Guerra, an electrician at the Magic Sands mobile home park, unilaterally proclaimed he would run the Barbaccias’ businesses. (Cross-Compl., ¶ 3.) Then, when Mr. Barbaccia died several months later, Guerra began exerting undue influence over Mrs. Barbaccia, then age 89. (Cross-Compl., ¶ 4.) Mrs. Previte claims Guerra, not the Barbaccias, decided not to honor the operative compensation agreement. (Cross-Compl., ¶¶ 1–8.)

In January 2017, the Barbaccias’ interest in the Palm Valley Apartments sold for $183,000,000. (Cross-Compl., ¶ 6.) At first, Guerra assured Mrs. Previte that her cut of the sales price, particularly $10,980,000, was forthcoming, but he subsequently refused to pay her and failed to respond to her follow-up requests for payment. (Cross-Compl., ¶¶ 6–7.) When Mrs. Previte commenced arbitration proceedings in accordance with the 2007 agreement, Guerra sued her. (Cross-Compl., ¶ 7.) She seeks to recover the sum due in connection with the sale of the Palm Valley Apartments and to confirm that she is entitled to recover six percent of the price of any future sale of the Magic Sands and Villa Teresa mobile home parks. (Cross-Compl., ¶¶ 13, 16.)

Mrs. Previte (“Previte”) asserts causes of action against Mrs. Barbaccia (“Barbaccia”), Guerra, and Barbaccia Properties Holdings, LLC for: (1) breach of contract; (2) declaratory relief; (3) inducing breach of contract (against Guerra only); (4) interference with prospective economic advantage (against Guerra only); (5) contractual interference (against Guerra only); and (6) interference with expected inheritance (against Guerra only).

Currently before the Court are Previte’s demurrer to the FAC and Guerra’s special motion to strike the cross-complaint, which is accompanied by a request for judicial notice.

II. Request for Judicial Notice

Guerra requests judicial notice of court records in support of his motion, particularly the original complaint he filed, the FAC, and the cross-complaint. A court may take judicial notice of court records under Evidence Code section 452, subdivision (d). Nevertheless, a court need not take judicial notice of a matter unless it “is necessary, helpful, or relevant.” (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6.) It is unnecessary to take judicial notice of the cross-complaint because the Court necessarily must consider it to evaluate the special motion to strike. (See, e.g., Paul v. Patton (2015) 235 Cal.App.4th 1088, 1091, fn. 1.) Additionally, the original complaint and FAC are not relevant to the arguments and issues that must be addressed by the Court. Consequently, the Court will not take judicial notice of the court records, and Guerra’s request is DENIED.

III. Special Motion to Strike the Cross-Complaint

A. Legal Standard

Code of Civil Procedure section 425.16 authorizes a person to bring a special motion to strike claims “arising from any act [ ] in furtherance of [his or her] right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.” (Code Civ. Proc., § 425.16, subd. (b)(1).)

Courts evaluate special motions to strike using a two-step analysis. (Country Side Villas Homeowners Assn. v. Ivie (2011) 193 Cal.App.4th 1110, 1116.) “First, the defendant must establish that the challenged claim arises from activity protected by section 425.16.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) “If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.” (Ibid.)

At the first step, “the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them.” (Baral, supra, 1 Cal.5th at p. 396.) “When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage.” (Ibid.) “If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached.” (Ibid.) If the moving party fails to demonstrate there are claims arising from protected activity in the first instance, the burden does not shift and a court need not reach the second step of the analysis. (Id. at p. 384.)

At the second step, the plaintiff must “demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated.” (Baral, supra, 1 Cal.5th at p. 396.) “The court, without resolving evidentiary conflicts, must determine whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment.” (Ibid.) “If not, the claim is stricken.” (Ibid.) “Allegations of protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing.” (Ibid.)

B. Application

1. Step One: Allegations of Protected Activity

As the moving party, Guerra must first identify the allegations that arguably arise from protected activity and demonstrate they fall within one of the four categories of protected activity defined in Code of Civil Procedure section 425.16, subdivision (e). (Gaynor v. Bulen (2018) 19 Cal.App.5th 864, 877–78.) The four categories are as follows: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (Code Civ. Proc., § 425.16, subd. (e).)

Although Guerra does preliminarily identify a number of allegations that purportedly constitute allegations of protected activity, he does not identify what statutory definition of protected activity the allegations come within and what claims are supported by the allegations. (Mem. of Pts. & Auth. at p. 8:3–17, quoting Cross-Compl., ¶¶ 7, 10–11, 14–15, 101.) Instead, he concludes, without any legal analysis, that the allegations are all protected because they relate to litigation activity. Thereafter, Guerra focuses on categories of claims, namely contract-based claims and interference-type claims, arguing they arise from protected litigation-related activity. In doing so, Guerra does not discuss any of the allegations he initially identifies. (Mem. of Pts. & Auth. at pp. 9:26–10:2, 10:10–10:18, quoting Cross-Compl., ¶¶ 60–61, 64, 68.) “Allegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute.” (Baral, supra, 1 Cal.5th at p. 394.) And so, Guerra’s failure to connect the allegations he identifies to the claims asserted, in addition to the conclusory nature of his presentation, is problematic.

Guerra focuses exclusively on litigation-related activity. (Mem. of Pts. & Auth. at p. 7:23.) Thus, presumably, his position is that Previte’s claims are based on statements made before a judicial proceeding or made in connection with an issue under consideration or review by a judicial body. (See Code Civ. Proc., § 425.16, subd. (e).) Of the allegations he identifies, only paragraphs 7 and 14 in which Previte alleges Guerra’s lawsuit is “baseless” and a “sham” appear to relate to protected activity. (See, e.g., Mundy v. Lenc (2012) 203 Cal.App.4th 1401, 1408–09 [filing a complaint in court is protected activity].) The other allegations that Guerra refused to pay Previte (Cross-Compl., ¶¶ 10–11, 15) and exerted undue influence over the Barbaccias (Cross-Compl., ¶ 101) do not, on their face, describe activity related to any judicial proceeding. Moreover, Guerra does not provide any explanation or identify any evidence to demonstrate the alleged refusal and exertion of undue influence qualify as statements made before or in connection with an issue under review in a judicial proceeding. For these reasons, the only protected conduct alleged in the cross-complaint is Guerra’s filing of the complaint. (See Cross-Compl., ¶¶ 7, 14.)

Previte’s claims do not arise from the protected act of filing the complaint.

A claim arises from protected activity if the “protected activity was the alleged injury-producing act that formed the basis for the claim.” (Gaynor, supra, 19 Cal.App.5th at p. 877, citing Park v. Bd. of Trustees of Cal. State University (2017) 2 Cal.5th 1057, 1062–63.) A court “should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.” (Park, supra, 2 Cal.5th at p. 1063.) A court must be “attuned to and…respect the distinction between activities that form the basis for a claim and those that merely lead to the liability-creating activity or provide evidentiary support for the claim.” (Id. at p. 1064.) “‘[T]he mere fact an action was filed after protected activity took place does not mean it arose from that activity.’” (Ulkarim v. Westfield, LLC (2014) 227 Cal.App.4th 1266, 1275, quoting City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76–77.)

Here, Previte does not allege the filing of the complaint was a breach of contract or the injury-producing event for purposes of her interference-type claims. Rather, she alleges Guerra’s exertion of undue influence over the Barbaccias and failure to pay her caused her to suffer damages sounding in contract and tort. (Cross-Compl., ¶¶ 61, 69, 73, 80–81, 89, 101.) Although Guerra’s pleading reflects he has not changed his position, there is no basis for concluding the act of filing the complaint itself is the misconduct upon which Previte’s claims are based.

To this point, Guerra asserts in a conclusory manner that the only alleged refusals to pay Previte are statements from his complaint. (Mem. of Pts. & Auth. at p. 10:16–17.) But he does not identify a single allegation or item of evidence to support his assertion. The allegations in the cross-complaint contradict Guerra’s assertion. Previte alleges Guerra filed the complaint after she attempted to commence arbitration proceedings following his refusal to pay her. In other words, Guerra’s breach preceded both her attempt to arbitrate the dispute and his filing of the complaint. And so, the filing of the complaint necessarily does not constitute the refusal to pay Previte upon which the claims in the cross-complaint are based.

In conclusion, Guerra does not carry his initial burden of demonstrating the claims asserted arise from protected activity. It follows that the burden does not shift to Previte to demonstrate her claims have merit. Guerra’s special motion to strike the cross-complaint is DENIED.

IV. Demurrer to the FAC

Previte demurs on the ground of failure to state facts sufficient to constitute a cause of action to the third, fourth, fifth, sixth, seventh, eighth, and ninth causes of action asserted in the FAC for: (3) conversion; (4) common counts; (5) imposition of constructive trust; (6) financial elder abuse; (7) breach of fiduciary duty; (8) receiving stolen property; and (9) violation of the UCL. Previte generally addresses her liability as a successor to her husband before discussing the sufficiency of some individual claims. The Court first addresses her general argument before reaching the arguments directed to particular claims.

A. Previte’s General Argument

Previte argues Plaintiffs’ claims are time-barred to the extent they are asserted against her as a “successor of her late husband, or as a successor of the Previte Trust.” (Mem. of Pts. & Auth. at p. 6:15–18.)

A demurrer is sustainable based on a statute-of-limitations defense if the pleading shows on its face that the claims are time-barred. (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315.) The demurring party must demonstrate (1) which statute of limitations applies and (2) when the challenged claim accrued. (See id. at pp. 1315–16.) Ultimately, the demurrer is only sustainable if the challenged claim is clearly and affirmatively time-barred; it is insufficient for the purpose of a demurrer to show merely that the claim may be time-barred. (Id. at p. 1316.)

Previte identifies Code of Civil Procedure section 366.2 as the applicable statute of limitations. That statute states “[i]f a person against whom an action may be brought on a liability of the person, whether arising in contract, tort, or otherwise, and whether accrued or not accrued, dies before the expiration of the applicable limitations period, and the cause of action survives, an action may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply.” (Code Civ. Proc., § 366.2, subd. (a).) This statute of limitations applies to claims that could have been brought against a decedent personally had he or she lived. (Estate of Yool (2007) 151 Cal.App.4th 867, 875–76.)
Here, Plaintiffs do not explicitly state their claims are asserted against Previte as a successor to her husband. Rather, Plaintiffs allege, in part, that Previte is liable as a cotrustee of the Previte Trust for the acts of her husband as trustee. (FAC, ¶ 25.) Previte argues Plaintiffs’ claims are, nevertheless, subject to the one-year limitations period based on Stoltenberg v. Newman (2009) 179 Cal.App.4th 287.

In Stoltenberg, the plaintiffs sued a widow who succeeded her husband as trustee for claims arising from her husband’s tortious conduct as trustee. (Stoltenberg, supra, 179 Cal.App.4th at pp. 290–91.) The Second District explained that “[t]here is no meaningful distinction between the liability of the decedent trustee who committed a tort as trustee and the successor trustee in her capacity as trustee.” (Id. at p. 294.) It added that “it would make no sense if the statute of limitations barring claims for a decedent’s tortious action could be avoided by not pursuing a claim against the estate of the decedent but rather proceeding against the successor trustee of the decedent’s trust.” (Id. at pp. 295–96.) Ultimately, the Second District determined that despite the form of the claims asserted, they arose as a matter of substance from “the personal misconduct of the settlor/trustee on behalf of and for the benefit of the trust, that was completed entirely before the settlor/trustee died, and for which the settlor/trustee could have been held personally liable.” (Id. at p. 296.) On that basis, the Second District held the plaintiffs’ claims were time-barred under Code of Civil Procedure section 366.2 despite being framed as claims against the successor trustee. (Id. at pp. 296–97.)

Although Stoltenberg is somewhat analogous, it does not address the precise circumstances presented here. Unlike in Stoltenberg, Previte did not just succeed her husband as trustee; rather, Plaintiffs allege she and her husband served as cotrustees such that she was contemporaneously responsible for the conduct of her husband based on the terms of the Previte Trust. And so, Plaintiffs are not necessary relying on a theory that claims against Previte’s husband survived his death and can be asserted against her as his successor. Previte does not address this distinction.
Additionally, she does not discuss each cause of action at issue as necessary to establish they are all clearly and affirmatively subject to and barred by Code of Civil Procedure section 366.2. Thus, the demurrer is not sustainable based on the statute of limitations.

B. Previte’s Arguments Regarding Individual Claims

Previte argues Plaintiffs do not allege facts sufficient to state claims against her individually, as distinct from in her capacity as trustee, for conversion, financial elder abuse, breach of fiduciary duty, and violation of the UCL.

1. Third Cause of Action—Conversion

Previte argues Plaintiffs fail to state a claim for conversion against her because they do not allege she knowingly and intentionally took the funds that were purportedly embezzled.

“Conversion is the wrongful exercise of dominion over the property of another.” (Burlesci v. Petersen (1998) 68 Cal.App.4th 1062, 1066.) “The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages.” (Ibid.) It “is a strict liability tort.” (Ibid.)

Previte inaptly relies on an outdated case, namely Taylor v. Forte Hotels International (1991) 235 Cal.App.3d 1119, for the proposition that the act of conversion must still be knowing and intentional although no wrongful intent or bad faith is required. In Taylor, the Fourth District misrelied on Poggi v. Scott (1914) 167 Cal. 372 for the proposition espoused by Plaintiffs when that case, in actuality, supports the proposition that neither knowledge nor intent is required. As explained by the California Supreme Court in reliance on Poggi, knowledge and intent are immaterial to conversion, which is a strict liability tort. (Moore v. Regents of the University of Cal. (1990) 51 Cal.3d 120, 144, fn. 38.) The Fourth District’s statement of law based on Poggi is irreconcilable with the California Supreme Court’s interpretation of that decision as well as that of other appellate courts. (Compare Taylor, supra, 235 Cal.App.3d at p. 1124 with Moore, supra, 51 Cal.3d at p. 144, fn. 38, Burlesci, supra, 68 Cal.App.4th at p. 1066, L.A. Federal Credit Union v. Madatyan (2012) 209 Cal.App.4th 1383, 1388.) Accordingly, Previte’s argument is not supported by the law and does not justify sustaining the demurrer.

2. Sixth Cause of Action—Financial Elder Abuse

Previte argues Plaintiffs to not plead specific facts sufficient to state a claim against her for financial elder abuse.

Plaintiffs’ claim is based on the Elder Abuse and Dependent Adult Protection Act (the “Act”). (See Welf. & Inst. Code, § 15657.) The “Act makes certain enhanced remedies available to a plaintiff who proves abuse of an elder, i.e., a ‘person residing in this state, 65 years of age or older.’” (Carter v. Prime Healthcare Paradise Valley, LLC (2011) 198 Cal.App.4th 396, 404, quoting Welf. & Inst. Code, § 15610.27.) “In particular, a plaintiff who proves ‘by clear and convincing evidence’ both that a defendant is liable for physical abuse, neglect or financial abuse (as these terms are defined in the Act) and that the defendant is guilty of ‘recklessness, oppression, fraud, or malice’ in the commission of such abuse may recover attorney[’s] fees and costs.” (Carter, supra, 198 Cal.App.4th at p. 404, quoting Welf. & Inst. Code, § 15657.)
To state a claim for financial elder abuse, a plaintiff must allege: (1) he or she was an elder at the time of his or her injury; (2) the defendant took, secreted, appropriated or retained, or assisted another in taking, secreting, appropriating or retaining, real or personal property; and (3) the defendant wrongfully used the property or intended to defraud the elder plaintiff. (Welf. & Inst. Code, § 15610.30.) “Under the statute, it is not necessary that the taker maintain an intent to defraud if it can be shown that the person took the property for a wrongful use and ‘knew or should have known that [his or her] conduct is likely to be harmful to the elder….’” (Bonfigli v. Strachan (2011) 192 Cal.App.4th 1302, 1315, quoting Welf. & Inst. Code, § 15610.30, subd. (b).) These facts must be pleaded with particularity. (Carter, supra, 198 Cal.App.4th at p. 407.)

As Previte articulates, Plaintiffs generically allege unspecified “Defendants took, secreted, appropriated, obtained and retained property of Lena Barbaccia….” (FAC, ¶ 67.) Even so, some specific allegations follow this general allegation. (FAC at p. 21:2–28.) Although some of these allegations impermissibly contradict prior allegations in the pleading, Plaintiffs do consistently allege Previte in particular retained Mrs. Barbaccia’s property. (Compare FAC, ¶ 29(c) with FAC, ¶ 67(h).) And so, Previte’s assertion that Plaintiffs do not specifically allege she engaged in conduct to support this claim is not persuasive.

With that said, Previte also argues Plaintiffs fail to allege she had the requisite intent. Plaintiffs do not allege, generally or specifically, that Previte retained money with an intent to defraud them. Plaintiffs also do not allege Previte retained property with the requisite degree of knowledge. While Plaintiffs assert such facts are alleged, they do not identify any allegation in the pleading to support their conclusion. Consequently, the Court concludes Plaintiffs do not allege the third essential element of their claim for financial elder abuse.

For these reasons, Plaintiffs fail to state a claim against Previte in her individual capacity for financial elder abuse.

3. Seventh Cause of Action—Breach of Fiduciary Duty

Previte argues Plaintiffs fail to state a claim for breach of fiduciary duty against her individually because they do not allege facts showing she owed, conspired to breach, or aided and abetted the breach of a fiduciary duty.

The primordial element of a claim for breach of fiduciary duty is the existence of a fiduciary relationship. (Meister v. Mensinger (2014) 230 Cal.App.4th 381, 395.) “[T]raditional examples of fiduciary relationships include those of trustee/beneficiary, corporate directors and majority shareholders, business partners, joint adventurers, and agent/principal.” (Gilman v. Dalby (2009) 176 Cal.App.4th 606, 614.)

Previte is correct that Plaintiffs do not allege the ultimate fact that she owed them a fiduciary duty or facts that otherwise support the conclusion that she owed them a fiduciary duty. Plaintiffs appear to concede this point as they do not address it or identify any legal or factual basis for reaching a contrary conclusion. Thus, Plaintiffs fail to plead this essential element of their claim to the extent it is asserted against Previte individually.

The next issue is whether the facts alleged are sufficient to state a claim against Previte as an individual based on conspiracy and aiding and abetting theories of liability.

“Civil conspiracy is not an independent tort.” (Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 823.) “Rather, it is a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration.” (Ibid. [internal quotation marks and citations omitted].) To plead tort liability based on a conspiracy theory, a plaintiff must allege “the defendant had knowledge of and agreed to both the objective and the course of action that resulted in the injury, that there was a wrongful act committed pursuant to that agreement, and that there was resulting damage.” (Ibid.) Significantly, “in California[,] a civil conspiracy to commit tortious acts can, as a matter of law, only be formed by parties who are already under a duty to the plaintiff, the breach of which will support a cause of action against them—individually and not as conspirators—in tort.” (Chavers v. Gatke Corp. (2003) 107 Cal.App.4th 606, 614, original italics, citing Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 514.) In other words, “tort liability arising from conspiracy presupposes that the coconspirator is legally capable of committing the tort….” (Applied Equipment Corp., supra, 7 Cal.4th at p. 511.)

Because Plaintiffs do not allege Previte owed a fiduciary duty, the facts alleged are also insufficient to state a claim against her for breach of fiduciary duty based on a conspiracy theory of liability. Additionally, as Previte articulates, Plaintiffs do not allege the elements of a conspiracy, particularly knowledge, an agreement, and knowing participation in the tortious course of conduct. Plaintiffs neglect to address this point, and so they implicitly concede it has merit. Thus, Plaintiffs also fail to allege facts sufficient to state a claim against Previte based on a conspiracy theory of liability.

Finally, Previte challenges the sufficiency of the allegations that she aided and abetted a breach of fiduciary duty. “California has adopted the common law rule for subjecting a defendant to liability for aiding and abetting a tort.” (Casey v. U.S. Bank, N.A. (2005) 127 Cal.App.4th 1138, 1144.) Liability for aiding and abetting tortious conduct may be imposed “on one who knows that another’s conduct constitutes a breach of duty and substantially assists or encourages the breach.” (American Master Lease, LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1476.) Unlike liability based on a conspiracy theory, liability based on aiding and abetting may be imposed in the absence of a duty owed to the plaintiff. (Ibid. [internal quotation marks and citation omitted].)

Previte argues Plaintiffs do not allege facts sufficient to support their aiding and abetting theory of liability. Indeed, the FAC is devoid of even conclusory allegations about aiding and abetting by Previte. There are no allegations about what she knew and how she provided substantial assistance to Jack Previte or John Previte, who allegedly took funds from the Barbaccias. Plaintiffs do not respond to Previte’s argument and, thus, appear to concede it is meritorious. Accordingly, Plaintiffs fail to allege facts sufficient to state a claim against Previte for breach of fiduciary duty based on an aiding and abetting theory of liability.

For all of these reasons, Plaintiffs fail to state a claim against Previte as an individual based on either a direct or a vicarious theory of liability.

4. Ninth Cause of Action—Violation of the UCL

Previte argues the demurrer to the UCL claim is sustainable because it is predicated on claims that are not properly pleaded. This argument is not supported by any legal analysis. In any event, as reflected above, Previte does not demonstrate all of the other claims asserted are defective. Accordingly, the demurrer to the UCL claim is not sustainable on the basis no predicate claim is properly pleaded.

C. Conclusion

In consideration of the foregoing, the Court concludes that Previte fails to demonstrate the challenged claims are entirely defective and time-barred. More particularly, Previte does not adequately address Plaintiffs’ theory that she is liable for the conduct of her husband as cotrustee based on the terms of the Previte Trust. “A demurrer does not lie to a portion of a cause of action.” (PH II, Inc. v. Super. Ct. (1995) 33 Cal.App.4th 1680, 1683.) Thus, although there are substantial defects in several of the claims asserted against Previte—which Plaintiffs do not suggest they can cure through amendment—the demurrer is not sustainable. The demurrer to the third, fourth, fifth, sixth, seventh, eighth, and ninth causes of action is therefore OVERRULED.