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

Case No.:       1-14-CV-259529

Demurrer by Defendants James E. Berge and Law Offices of Berge & Berge, LLP to the Third Amended Complaint (“TAC”) of Plaintiffs Jeffrey E. McDonnell, Elizabeth McDonnell, and Mary Carmel McDonnell

Defendants demur to the sixth cause of action for elder financial abuse and the eighth cause of action for tort of another on the ground of failure to allege sufficient facts to constitute a cause of action.  (See Code Civ. Proc., § 430.10, subd. (e).)

Defendants’ request for judicial notice is GRANTED because the documents are court records that are relevant to the pending matter.  (See Evid. Code, § 452, subd. (d); see also People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [only relevant matters subject to judicial notice].)

The function of a demurrer is to test the legal sufficiency of a pleading.  (See Trs. Of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621.)  Consequently, “[a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice.”  (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732; see also Code Civ. Proc., § 430.30, subd. (a).) “It is not the ordinary function of a demurrer to test the truth of the … allegations [in the challenged pleading] or the accuracy with which [the plaintiff] describes the defendant’s conduct. … Thus, … ‘the facts alleged in the pleading are deemed to be true, however improbable they may be.’”  (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958.)  However, while “[a] demurrer admits all facts properly pleaded, [it does] not [admit] contentions, deductions or conclusions of law or fact.”  (George v. Automobile Club of Southern California (2011) 201 Cal.App.4th 1112, 1120.)

With respect to the sixth cause of action for elder financial abuse, even assuming arguendo that plaintiff Jeffrey E. McDonnell (“Jeffrey”) is able to establish that he has standing to bring the claim, the TAC fails to allege particular facts demonstrating that Defendants knew about a scheme on the part of Edward McDonnell (“Edward”) to defraud the deceased, Carmel A. McDonnell (“Carmel”).  (See Covenant Care, Inc. v. Super. Ct. (2004) 32 Cal.4th 771, 790 [“[T]he general rule [is] that statutory causes of action must be pleaded with particularity.”]; see also Welf. & Inst. Code § 15610.30, subd. (2) [in order to state a cause of action for financial elder abuse, the plaintiff must allege that the victim was an elder at the relevant time and the defendant assisted in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder for a wrongful use or with intent to defraud, or both]; see also Das v. Bank of America, N.A. (“Das”) (2010) 186 Cal.App.4th 727- 744-745 [interpreting the use of the word “assists” in Welfare & Institutions Code section 15610.30 and holding that “the provision cannot be understood to impose strict liability for assistance in an act of financial abuse,” the provision must be construed in light of the common law standard for aiding and abetting liability, and the provision requires that the plaintiff show that the defendant actually knew that the alleged transactions were assisting the third-party wrongdoer in the commission of a tort].)  In fact, the allegations of the TAC support the contrary inference: Defendants were unaware of Edward’s scheme.  Edward presented Defendants with the completed questionnaire that was signed by Carmel and stated that it was her wish to leave her home to Edward; and Edward posed as Carmel’s fiduciary, represented to Defendants that he had power of attorney to act on Carmel’s behalf, and actually showed Defendants such document purporting to be a power of attorney.  (See TAC, ¶¶ 16-19, 21, 39-41.)  The allegations that Defendants prepared a personal residence trust and failed to meet with Carmel prior to doing so do not state a claim for elder abuse.

Accordingly, the demurrer to the sixth cause of action is SUSTAINED.  As Jeffrey does not articulate a manner in which this fourth plead could be amended to address these deficiencies, leave to amend is denied.  (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [the burden is on the plaintiff to show “in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”]; see also CAMSI IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1542.)

In addition, the demurrer to the eighth cause of action for tort of another is SUSTAINED, without leave to amend, because it is dependent upon the other causes of action.  (See Sooy v. Peter (1990) 220 Cal.App.3d 1305, 1310 [noting that the tort of another doctrine is an issue of damages and not a cause of action in and of itself].)