Tentative Ruling

Judge Colleen Sterne
Department 5 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Allen Cohen v. Tami Kerrigan
Case No: 19CV05210
Hearing Date: Mon Feb 10, 2020 9:30

Nature of Proceedings: Demurrer to Cross-Complaint

Allen Cohen v. Tami Kerrigan (Judge Sterne)

Case No. 19CV05210

Hearing Date: February 10, 2020

HEARING:

Demurrer of Cross-Defendant Allen Cohen to Cross-Complaint of Tami Kerrigan

ATTORNEYS:

For Plaintiff and Cross-Defendant Allen Cohen: Michael D. Hellman, Gamble T. Parks, Clark A. Lammers, Fell, Marking, Abkin, Montgomery, Granet & Raney, LLP

For Defendant and Cross-Complainant Tami Kerrigan: Jana S. Johnston, Daniella R. Scioscia-Regencia, Mullen & Henzell LLP

TENTATIVE RULING:

The demurrer of cross-defendant Allen Cohen to the cross-complaint of Tami Kerrigan is overruled in its entirety. Cohen shall file and serve his answer to the cross-complaint on or before February 25, 2020.

Background:

As alleged in the cross-complaint: Cross-complainant Tami Kerrigan and cross-defendant Allen Cohen’s late wife, Judith Brilliant-Cohen, had a well-established friendship. (Cross-complaint [CC], ¶ 4.)

On July 23, 2013, Brilliant-Cohen met with Kerrigan and others to discuss Brilliant-Cohen’s testamentary wishes. (CC, ¶ 5.) Brilliant-Cohen did not want any of her estate, including bank accounts and personal property, to pass to Cohen and instead wanted all of these assets to pass to Kerrigan. (Ibid.) Kerrigan would decide how to distribute the proceeds of Brilliant-Cohen’s residence at 2850 Kenmore Place (the Residence). (Ibid.) On that same date, Cohen executed an acknowledgement that he understood how Brilliant-Cohen wanted her estate to pass and that he would take nothing. (Ibid.)

On July 26, 2013, Brilliant-Cohen passed away. (CC, ¶ 6.)

On August 27, 2013, Kerrigan initiated a probate matter for Brilliant-Cohen’s estate, Estate of Judith Brilliant-Cohen aka Judith Brilliant, Santa Barbara County Superior Court case number 1418664 (the Probate Action). (CC, ¶ 7.) Although Kerrigan would receive all of Brilliant-Cohen’s personal property and determine how the Residence’s sale proceeds would be distributed pursuant to Brilliant-Cohen’s express written wishes, Kerrigan waived her rights to that property, resulting in an April 2014 order distributing all of Brilliant-Cohen’s estate to Cohen. (Ibid.)

Cohen and Kerrigan became friends. (CC, ¶ 8.) During this friendship, Cohen expressed to Kerrigan that he intended to make Kerrigan and her husband a part of his estate plan along with his two nephews. (CC, ¶ 9.) Cohen wanted to follow Brilliant-Cohen’s wishes in part by giving Kerrigan an interest in the Residence, the bank accounts and other items, and by ensuring that after his passing, Cohen’s interest in the Residence would pass to Kerrigan. (Ibid.) Cohen also suggested that Kerrigan keep the Rabobank account, and he would keep a different bank account that contained some of Brilliant-Cohen’s assets as well since such a division would be nearly equal. (Ibid.) Kerrigan agreed to this arrangement. (Ibid.)

Cohen expressed to Kerrigan his wish that Kerrigan and her family move into the Residence. (CC, ¶ 10.) Kerrigan agreed, but they also agreed that the Residence would be rented to other tenants to cover the Residence’s expenses until Kerrigan was able to move into the Residence and cover the expenses herself. (Ibid.)

During the probate administration of Brilliant-Cohen’s estate, the mortgage payments for the Residence were automatically paid out of the estate’s Rabobank account. (CC, ¶ 11.) At the conclusion of the administration, Cohen confirmed his receipt of all assets to which he was entitled. (Ibid.) For ease in making the ongoing mortgage payments for the Residence, Kerrigan told Cohen that she would keep the estate’s Rabobank account open and would continue using this account for the automatic mortgage payments, to deposit rent payments, and to pay taxes and insurance. (Ibid.) Cohen agreed. (Ibid.)

On September 27, 2019, Cohen filed his complaint in this action against Kerrigan.

On November 12, 2019, Kerrigan filed her answer to Cohen’s complaint and concurrently filed the CC. The CC asserts two causes of action against Cohen: (1) breach of oral contract; and, (2) conversion.

Cohen now demurs to the CC. Kerrigan opposes the demurrer.

Analysis:

“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.]” (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6, internal quotation marks omitted.)

(1) Breach of Contract

Kerrigan’s first cause of action is for breach of oral contract. “A cause of action for breach of contract requires pleading of a contract, plaintiff’s performance or excuse for failure to perform, defendant’s breach and damage to plaintiff resulting therefrom.” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.)

Cohen argues that Kerrigan fails to allege the contract both by failing to allege consideration and by failing to allege terms that are “clear enough that the parties could understand what each was required to do.” (Demurrer, p. 6.)

Kerrigan alleged an “oral agreement whereby Cohen agreed to split Ms. Brilliant-Cohen’s estate in half with Kerrigan, and Kerrigan would agree to abide by this division. In accordance with this promise, Kerrigan took possession of Ms. Brilliant-Cohen’s Rabobank account, with Cohen’s consent as contemplated by their oral agreement, waived all statutory compensation to which she was entitled as administrator of the estate, and expended personal efforts in managing, renting out, and paying expenses for the Residence.” (CC, ¶ 13.)

“Any benefit conferred, or agreed to be conferred, upon the promisor, by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a good consideration for a promise.” (Civ. Code, § 1605.) Kerrigan alleges a promise, services expended, and a waiver of compensation to which she was entitled as consideration for the contract. The pleading of consideration is sufficient.

“An oral contract may be pleaded generally as to its effect, because it is rarely possible to allege the exact words.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) The agreement alleged is an equal spilt of Brilliant-Cohen’s estate with Cohen. This allegation is sufficient as to the legal effect of the contract.

Cohen’s demurrer to the first cause of action will be overruled.

(2) Conversion

Kerrigan’s second cause of action is for conversion. “A cause of action for conversion requires allegations of plaintiff’s ownership or right to possession of property; defendant’s wrongful act toward or disposition of the property, interfering with plaintiff’s possession; and damage to plaintiff.” (McKell v. Washington Mutual, Inc., supra, 142 Cal.App.4th at p. 1491.)

Kerrigan alleges that she was the owner of “Rabobank Account No. xxxxxxxx89 and all funds therein, which totaled approximately $19,840.66 at the last time Kerrigan had access to the account.” (CC, ¶ 18.)

Cohen argues that Kerrigan was not the owner of the account or its funds and that money cannot be the subject of a conversion action. In support of Cohen’s first argument, Cohen relies upon the 2014 order of the Probate Court in the Probate Action to show that the account belonged to Cohen. (Demurrer, pp. 7-8.)

“Money cannot be the subject of a cause of action for conversion unless there is a specific, identifiable sum involved, such as where an agent accepts a sum of money to be paid to another and fails to make the payment. [Citation.] Thus, in Chazen v. Centennial Bank (1998) 61 Cal.App.4th 532, 543, the plaintiffs stated a cause of action for conversion where the bank took funds from trust accounts to pay the trustee’s personal indebtedness.” (McKell v. Washington Mutual, Inc., supra, 142 Cal.App.4th at p. 1491, parallel citation omitted.)

The reference to the “account” as being a subject of conversion causes confusion here. The property that is alleged as the subject of conversion is the money in the account rather than the account itself (i.e., the right to use the account separate from ownership of any amount of money in the account). “ ‘[A]ny act of dominion wrongfully exerted over the personal property of another inconsistent with the owner’s rights thereto constitutes conversion.’ [Citation.]” (Plummer v. Day/Eisenberg, LLP (2010) 184 Cal.App.4th 38, 50.) To whatever extent that the filings and orders of the Probate Court in the Probate Action may evidence ownership of either the account or the money in the account when filed or issued in 2014 or earlier, those orders are not conclusive of ownership of money in the account in 2019 when the conversion is alleged to have occurred. Kerrigan alleges that specific money in the account was Kerrigan’s own property. Kerrigan alleges a specific, identifiable sum involved in the conversion. This is sufficient to allege the cause of action for conversion.

Based on the foregoing, the orders and filings of and in the Probate Action are irrelevant to the disposition of this demurrer. Cohen’s requests for judicial notice of such filings and orders will be denied. (See Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 [“Although a court may judicially notice a variety of matters [citation], only relevant material may be noticed. ‘But judicial notice, since it is a substitute for proof [citation], is always confined to those matters which are relevant to the issue at hand.’ [Citation.]”].)