Case Name: Jeffrey E. McDonnell, et al. v. James E. Berge, et al.

Case No.: 1-14-CV-259529

Demurrer to the first amended complaint by defendants James E. Berge and Law Offices of Berge & Berge, LLP

Defendants’ request for judicial notice is GRANTED but only insofar as the Court takes judicial notice of the existence of the document, not the truth of any matters asserted therein. (See Evid. Code, § 452, subd. (d); People v. Woodell (1998) 17 Cal.4th 448, 455 [a court cannot take judicial notice of the truth of hearsay statements in its files, “including pleadings, affidavits, testimony, or statements of fact”].)

A. First Cause of Action

Defendants’ demurrer to the first cause of action for professional negligence as to plaintiff Mary McDonnell (“Mary”) (a minor child) on the ground of failure to state sufficient facts is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND. “A key element of any action for professional malpractice is the establishment of a duty by the professional to the claimant.” (Chang v. Lederman (2009) 172 Cal.App.4th 67, 76 [citation and quotation marks omitted].) “Absent duty there can be no breach and no negligence.” (Goldberg v. Frye (1990) 217 Cal.App.3d 1258, 1267.) “Whether a lawyer sued for professional negligence owed a duty of care to the plaintiff is a question of law and depends on a judicial weighing of the policy considerations for and against the imposition of liability under the circumstances.” (Id.) Mary fails to allege that Defendants owed her a duty as an intended or third party beneficiary. (See First Amended Compl. (“FAC”), ¶¶ 36-39.) Moreover, despite the arguments contained in her opposition, Mary fails to allege facts establishing a duty under the principles set forth in Biakanja v. Irving (1958) 49 Cal.2d 647, 650, and Lucas v. Hamm (1961) 56 Cal.2d 583, 589. (See Bucquet v. Livingston (1976) 57 Cal.App.3d 914, 922-23 [extending the Biakanja/Lucas principles, which originated in cases involving the negligent drafting or execution of wills, to suits by trust beneficiaries].)

Defendants’ demurrer to the first cause of action for professional negligence as to plaintiff Jeffrey E. McDonnell (“Jeffrey”) on the ground of failure to state sufficient facts is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND. Defendants argue that they did not owe Jeffrey a duty as he did not allege he was an intended beneficiary of Carmel A. McDonnell’s (“decedent”) estate in order to maintain this claim. Due to the number of family members and the web of family relationships, Jeffrey needs to clearly allege that Defendants owed him a duty as an intended beneficiary. (See FAC, ¶ 21 [alleging that the Carmel A. McDonnell Personal Residence Trust, Trust Agreement (“Residence Trust”) gave Edward McDonnell (“Ed”) (decedent’s brother and Jeffrey’s father) all of decedent’s money “except for bequests of $10,000 to nine specific nieces and nephews . . . .”].) It also is unclear to the Court what the underlying basis of this claim is as to Jeffrey (i.e. what Defendants did that supposedly was negligent as to Jeffrey as an “intended” beneficiary).

B. Second Cause of Action

Defendants’ demurrer to the second cause of action for breach of contract as to Jeffrey on the ground of failure to state sufficient facts is OVERRULED. Defendants maintain that there are no allegations that Jeffrey was a beneficiary or potential beneficiary of the will or the trust. This argument is belied by paragraph 42, which alleges that Jeffrey was an intended beneficiary to the trust and a third-party beneficiary to the attorney-client agreement. Defendants improperly argue in their reply for the first time that Jeffrey did not allege that the contract was breached as to him. (See Mem. at p. 9:14-17.)

Defendants’ demurrer to the second cause of action for breach of contract as to Mary on the ground of failure to state sufficient facts is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND. As noted with the first cause of action, Mary has not yet shown that she can maintain a cause of action for professional negligence. As such, she cannot maintain her claim for breach of the attorney-client relationship.

C. Third Cause of Action

Defendants’ demurrer to the third cause of action for breach of fiduciary duty as to Mary on the ground of failure to state sufficient facts is SUSTAINED WITHOUT LEAVE TO AMEND. Mary represents in her opposition that she is dismissing this claim without prejudice.

Jeffrey seeks leave to amend the pleading in order to add himself as a plaintiff to this cause of action. Jeffrey should work with Defendants on a stipulation to do so or file a motion for leave to amend.

D. Fourth Cause of Action

Defendants’ demurrer to the fourth cause of action for deceit (suppression of fact) as to Jeffrey and Mary on the ground of failure to state sufficient facts is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND. The opposition seeks leave to amend in order to allege additional facts, especially as to Jeffrey.

The Court notes that a claim for deceit lies based on “[t]he suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact.” (See Civ. Code, § 1710(3).) This cause of action is based on allegations that defendant James E. Berge (“Berge”) “failed to reveal and suppressed the following facts”: (1) Berge met with decedent, when in fact he did not; (2) decedent told Berge that she wanted her home to go to Ed and not Mary, when in fact Berge had not communicated with decedent; and (3) the Residence Trust reflected decedent’s true testamentary intent, when in fact Berge had no reasonable basis for claiming that. (FAC, ¶ 54.) Here, it can be reasonably inferred that Berge had a duty to disclose the truth about his interactions with decedent.

Defendants’ demurrer to the fourth cause of action for deceit (suppression of fact) Jeffrey and Mary on the ground of uncertainty is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND. Defendants proffer that this claim is vague and self-contradictory. The opposition acknowledges that the “wording of this section is rather misleading,” and asserts it is “willing to amend.” (Opposition at p. 13, n.2.)

E. Fifth Cause of Action

Defendants’ demurrer to the fifth cause of action for constructive fraud as to Jeffrey on the ground of failure to state sufficient facts is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND. “Constructive fraud is a unique species of fraud applicable only to a fiduciary or confidential relationship.” (Salahutdin v. Valley of Cal., Inc. (1994) 24 Cal.App.4th 555, 562.) Jeffrey seeks leave to amend in order to allege that there was a fiduciary relationship between himself and Berge in that Jeffrey employed Berge after Ed died.

Defendants’ demurrer to the fifth cause of action for constructive fraud as to Mary on the ground of failure to state sufficient facts is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND. “It is essential to the operation of the doctrine of constructive fraud that there exist a fiduciary or special relationship.” (Peterson Dev. Co. v. Torrey Pines Bank (1991) 233 Cal.App.3d 103, 116.) Defendants argue that: (1) there is no basis for an agency relationship between either Defendants and Mary or Mary and decedent, and (2) there was no fiduciary relationship between Defendants and Mary. Mary does not respond to these arguments in her opposition, and therefore, concedes they have merit.

F. Sixth Cause of Action

Defendants’ demurrer to the sixth cause of action for elder financial abuse as to Mary on the ground of failure to state sufficient facts is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND. Defendants contend that Mary has no standing to bring this action. Welfare and Institutions Code section 15657.3 states that the term “interested persons” is that as defined by Probate Code section 48. (See Welf. & Inst. Code § 15657.3, subd. (d)(1)(C).) Probate Code section 48 defines an “interested person” to mean “[a]n heir, devisee, child, spouse, creditor, beneficiary, and any other person having a property right in or claim against a trust estate or the estate of a decedent which may be affected by the proceeding . . . [a]ny person having priority for appointment as personal representative . . . [or a] fiduciary representing an interested person.” (Prob. Code § 48, subd. (a).) Although Mary argues she is an “interested person” who has standing to sue, she has not clearly alleged the basis of her standing in the FAC. (See Lickter v. Lickter (2010) 189 Cal.App.4th 712, 732 [stating that “[g]enerally, ‘the right to commence or maintain [such] an action . . . pass[es] to the personal representative of the [elder]’”; also stating that “‘[i]f the personal representative refuses to commence or maintain an action or if the personal representative’s family or an affiliate . . . is alleged to have committed abuse of the elder’, then the Legislature has granted ‘standing to commence or maintain an action for elder abuse’ to ‘[a]n intestate heir whose interest is affected by the action,’ ‘[t]he decedent’s successor in interest,’ or ‘[a]n interested person, as defined in Section 48 of the Probate Code”].)

G. Seventh Cause of Action

Defendants’ demurrer to the seventh cause of action for negligent infliction of emotional distress as to Jeffrey and plaintiff Elizabeth McDonnell (“Elizabeth”) on the ground of failure to state sufficient facts is SUSTAINED WITHOUT LEAVE TO AMEND. Jeffrey and Elizabeth represent in their opposition that they have dismissed this claim without prejudice.

H. Eighth Cause of Action

Defendants’ demurrer to the eighth cause of action for tort of another as to Elizabeth on the ground of failure to state sufficient facts is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND. The “tort of another” doctrine is an issue of damages and not a cause of action. (Sooy v. Peter (1990) 220 Cal.App.3d 1305, 1310.) “Because the third party tort ‘exception’ is in fact an element of tort damages, nearly all of the cases which have applied the doctrine involve a clear violation of a traditional tort duty between the tortfeasor who is required to pay the attorney fees and the person seeking compensation for those fees.” (Id.) Defendants correctly contend that Elizabeth has not pled a tort which caused her damages. The only other cause of action in which Elizabeth was named as a plaintiff was the seventh cause of action for negligent infliction of emotional distress. That claim has been dismissed. Because the facts pled in the FAC do not establish a violation of any tort duty between Defendants and Elizabeth, the pleading has not pled a sufficient basis for damages.

Defendants’ demurrer to the eighth cause of action for tort of another as to Jeffrey on the ground of failure to state sufficient facts is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND. Defendants maintain that Jeffrey did not suffer any damages to pursue an action on an estate in which he had no actual or beneficial interest. As noted with the first cause of action, Jeffrey has not alleged he was an intended beneficiary under the Residence Trust. Moreover, this claim rests on the first, fourth, and fifth causes of action, which allege tortious conduct on the part of the Defendants. (Id., ¶ 78.) All of these causes of action have been sustained, meaning Jeffrey has not pled a tort which caused him damages.

I. Guardian Ad Litem

Defendants argue in their reply that the demurrer should be granted as to Mary because she is a minor, and the action is not being pursued on her behalf by a guardian ad litem. This ground for demurrer does not appear in Defendants’ notice. The only place in the memorandum of points and authorities this argument makes a semi-appearance is in footnote 9 with the eighth cause of action. The argument, however, is not developed or supported with legal authority. Because this ground for demurrer was not contained in the notice, and the argument was not fully developed in the memorandum of points and authorities, the Court has not considered it. Defendants are free to demurrer on this basis