18-CIV-03789 THEODORE RILEY, ET AL. VS. AKIL HASHIM KHALID, ET AL.

THEODORE RILEY AKIL HASHIM KHALID
CARY S. KLETTER

DEFENDANT PROJECT SENTINEL, INC.’S (PSI) DEMURRER TO PLAINTIFF THEODORE RILEY’S THIRD-AMENDED COMPLAINT TENTATIVE RULING:

Defendant Project Sentinel, Inc.’s (PSI) Demurrer to Plaintiff Theodore Riley’s ThirdAmended Complaint (TAC) filed 7-16-19 is SUSTAINED, as set forth below.

The Demurrer to the Third Cause of Action for Financial Elder Abuse under Welf. & Inst. Code § 15610.30 is SUSTAINED WITH LEAVE TO AMEND. Code Civ. Proc. § 430.10(e). The TAC does not allege PSI directly engaged in financial abuse, rather, it alleges PSI “assisted” Defendant Khalid in committing financial abuse by failing to provide Plaintiff Riley with “mandated” counseling services, and by failing to conduct sufficient due diligence to confirm the Trust’s proper Trustee, and to confirm whether Khalid was Riley’s attorney-in-fact. TAC, ¶¶60-66; W&I Code §15610.30(a)(2). Liability for “assisting” another party’s alleged financial elder abuse requires allegations defendant actually knew of the third party’s wrongful conduct. Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 744-45. There is no allegation here PSI was aware Khalid was a wrongdoer or had any illegal or nefarious intentions when requesting reverse mortgage counseling.

The Demurrer to the Seventh Cause of Action for negligence is SUSTAINED WITH LEAVE TO AMEND for failure to allege facts demonstrating the existence of a legal duty owed to Plaintiff. Code Civ. Proc. § 430.10(e). The TAC alleges PSI owed Plaintiff a duty not to cause him harm, and breached it by failing to provide Plaintiffs with mandatory counseling required by “the CFR, other state and federal statutes,” and by enabling Khalid’s fraud by failing to conduct sufficient due diligence to confirm the Trust’s proper Trustee, and to confirm whether Khalid was Riley’s attorney-in-fact. ¶¶102-105. Plaintiff’s Opposition cites no legal authority indicating PSI’s alleged provision of counseling services to Khalid triggered a legal duty to other parties who may have an interest in the property that is the subject of the counseling. Further, although the TAC appears to tie the negligence claim to a statute or regulation, the TAC does not allege/identify any specific statute or regulation PSI allegedly violated. See also Das v. Bank of America, N.A., supra, 186 Cal.App.4th at 740-41 (affirming sustaining of demurrer to negligence claim).

The Demurrer to the Eighth Cause of Action for unfair business practices under Bus. & Prof. Code § 17200 is SUSTAINED WITH LEAVE TO AMEND. Code Civ. Proc. §430.10(e). This claim requires factual allegations sufficient to establish an unlawful, unfair, or fraudulent business practice. Since this claim appears predicated on the elder abuse

September 19, 2019 Law and Motion Calendar PAGE 5 Judge: HONORABLE LELAND DAVIS, III, Department 1 ________________________________________________________________________ and negligence causes of action, and because the demurrer to those claims is being sustained, this claim also fail to state a cause of action.

The Demurrer to the Ninth Cause of Action for “failure to train and supervise” is SUSTAINED WITH LEAVE TO AMEND. Code Civ. Proc. § 430.10(e). Plaintiff’s Opposition argues that despite its wording, this claim alleges negligence based on PSI’s alleged failure to train and supervise its employees. These allegations appear indistinguishable from the general negligence claim, and thus the Demurrer to this cause of action is sustained for the same reason(s) stated above (see Seventh Cause of Action).

Plaintiff’s counsel is reminded that Opposition briefs must be served by overnight delivery, absent a written agreement by the parties to accept service by electronic means. Code Civ. Proc. § 1005(b).

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendant PSI shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.