Case Name: Vista Verde Home Health, LLC v. Adam Weiskal
Case No: 19CV349108

I. Background

Plaintiff Vista Verde Home Health, LLC (“Plaintiff”) brings this action against Adam Weiskal (“Trustee”) as trustee of the Ohannes H. Atanian Trust, the Kimberly Atanian Special Needs Trust, and the Mark Atanian Special Needs Trust for breach of contract.

According to the allegations of the complaint, Plaintiff provided home care services to Kimberly and Mark Atanian, the adult special needs children of Ohannes Atanian. (Complaint, Attmnt. BC-2 at 6.) Ohannes executed an agreement with Plaintiff on behalf of Kimberly through power of attorney and as trustee of her special needs trust. (Ibid.) He paid Plaintiff using the bank accounts of the trusts. Plaintiff also provided care to Ohannes pursuant to a similar agreement. (Complaint, Attmnt. BC-2 at 9.) Shortly thereafter, Ohannes revised his various trusts and appointed Trustee. (Ibid.) A few days later, Ohannes died. (Ibid.)

Trustee approved Plaintiff’s continued care of Kimberly and Mark under the terms of the previously executed agreement. (Complaint, Attmnt. BC-2 at 6.) He verbally confirmed he would honor the agreement at Ohannes’ memorial service and reaffirmed the commitment in three subsequent conversations. (Ibid.) Plaintiff therefore continued to provide home care services to Kimberly and Mark, but Trustee refuses to pay for services rendered, and the outstanding balance for the care of Kimberly and Mark is $57,670.77. (Ibid.) Likewise, the unpaid balance for the care of Ohannes is $11,282.18. (Complaint, Attmnt. BC-2 at 9.)

As a result of the foregoing, Plaintiff brings five causes of action for breach of contract against: (1) Ohannes Atanian for the fees associated with the care of Kimberly and Mark; (2) Trustee as “Trustee of the various trusts” for the fees associated with the care of Kimberly and Mark; (3) Trustee as the “Trustee of the Ohannes H. Atanian Trust” for fees associated with the care of Kimberly and Mark; (4) Ohannes Atanian for the fees associated with his own care; (5) Trustee as “Trustee of the trust” for the fees associated with the care of Ohannes Atanian; and (6) a common count for services rendered against Trustee.

Trustee demurs to the complaint.

II. Demurrer

Trustee demurs to the complaint on the ground of failure to state sufficient facts pursuant to Code of Civil Procedure section 430.10, subdivision (e). His demurrer appears to be to the entire complaint, and no single cause of action is specified.

A demurrer tests the legal sufficiency of a pleading, but not the truth of a plaintiff’s allegations or the accuracy with which he or she describes the defendant’s conduct. (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958; citing Committee on Children’s Television Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213.) The demurrer is treated as admitting all material facts, properly pleaded, but not contentions, deductions or conclusions of law. (Ibid.)

Trustee argues that Plaintiff’s failure to file a creditor’s claim against the estate of Ohannes Atanian bars the causes of action. Where breach of contract is alleged against one who is deceased, the plaintiff must “proceed upon the theory that he or she is a creditor of the deceased, having a claim against the estate. (Prob. Code, § 9000 et seq.; Wilkison v. Wiederkehr (2002) 101 Cal.App.4th 822, 829.) Prior to filing a cause of action for the breach, he or she must present the claims to the executor or administrator and judge. (Ibid.) Plaintiff must allege the filing of the creditor’s claim in a complaint against the estate, and failure to do so renders the complaint subject to demurrer. (See Rupp v. Kahn (1966) 246 Cal.App.2d 188, 193.)

As Trustee points out, the complaint fails to allege presentation of claims against a probate estate. However, the demurrer cannot be sustained on this basis as the existence of a probate estate, executor or administrator is not pleaded in the complaint, or brought as the subject of judicial notice. Instead, the complaint is brought against Trustee in his capacity as the trustee of the various trusts and no probate action is pleaded. Furthermore, Trustee makes no arguments regarding claims made against a trust, nor are the code sections or case law he cites relevant to such claims.

Similarly, Defendant’s arguments regarding the requirement that a claim against an estate be timely filed are not on point. While it is true that a creditors claim must be timely filed against a decedent’s probate estate pursuant to Probate Code section 9250 subdivisions (a) and (c), no probate estate is pleaded or otherwise before the Court as a matter for judicial notice.

Consequently, the demurrer to the complaint is OVERRULED.

The Court will prepare the order.