Joi Stephens, et al. v. Reicker, Pfau, Pyle & McRoy, LLP, et al.
Case No: 18CV02165
Hearing Date: Tue Sep 24, 2019 9:30

Nature of Proceedings: Demurrer/Motion Strike

Demurrer to 5th Amended Complaint

Motion to strike

ATTORNEYS:

John B. Richards for plaintiffs

Heather L. Rosing / Benjamin C. Wohlfeil of Klinedinst PC for defendants

RULING: The demurrer is sustained without leave to amend as to plaintiffs John Stephens, Ryan Chacon, and Alexandra Djordjevic. The demurrer is sustained, with leave to amend, as to the uncertainty created by the failure to clearly articulate which capacities in which the causes of action for professional negligence, breach of fiduciary duty, conversion, and accounting are being prosecuted. In all other respects, the demurrer is overruled. The motion to strike is denied in its entirety. To the extent leave to amend has been granted, plaintiff shall file any further amended complaint on or before October 8, 2019.

Background:

Plaintiffs’ Fifth Amended Complaint (5AC) was filed after third and fourth amended complaints filed without leave of court were stricken, and the court sustained, in part, a demurrer to the second amended complaint with leave to amend. It alleges causes of action for (1) financial elder abuse, (2) physical/ emotional elder abuse, (3) legal malpractice, (4) breach of fiduciary duty, (5) conversion, and (6) accounting. It alleges that plaintiff Joi Stephens (Joi) is the only living child of decedent Betty J. Stephens (Betty), who died on August 18, 2018, and that Joi appears in this action in her individual capacity, her capacity as Trustee and named beneficiary of The Stephens Family Trust, and/or her capacity as executor, personal representative, and legatee of Betty’s will. Plaintiffs John Stephens, Ryan Chacon, and Alexandra Djordjevic are Joi’s children and Betty’s grandchildren (grandchildren), and are named beneficiaries in The Stephens Family Trust. The 5AC contends that their status as plaintiffs is limited to the cause of action for physical/emotional elder abuse.

Defendants Peter Muzinich (Muzinich) and Bruce McRoy (McRoy) are attorneys with defendant law firm (Reicker, Pfau, Pyle & McRoy, LLP (Reicker firm). From June 2015 until April 28, 2017, Muzinich handled estate planning matters for both Betty and Joi. McRoy represented Joi with respect to two small claims actions beginning of 11/13, and one of Joi’s LLCs from mid-2014 until April 22, 2016. Plaintiffs do not contend that defendants were negligent in any of these representations, but contend that they learned Joi’s confidential financial information from the representations, and thereafter engaged in conduct that breached their fiduciary duties to Joi, and constituted ethically impermissible conflicts of interest. The 5AC alleges that the breaches of fiduciary duties and ethical breaches included Muzinich’s 2/2/16 meeting with Betty for the purpose of removing Joi as her Trustee and Power of Attorney; Muzinich’s 2/16 research into removing Joi as Trustee; Muzinich’s 2/25/16 meeting with Betty to discuss planning and separation of Joi as an agent; Muzinich’s 3/11/16 meeting with Joi to advise that he was typing up a resignation letter for Betty’s private fiduciary, Stacey Wright, who was going to be fired; Muzinich’s exertion of undue influence on Betty prior to 3/29/16, to coerce her to transfer $150,000 to the Boys & Girls Club of Santa Barbara; Muzinich’s 9/21/16 acknowledgment to John and Joi that Betty’s housekeeper Patty Valladeres (Patty) had exerted undue influence over Betty, refused to take a CPR course, and regularly forgot to give Betty her medication; Muzinich’s 12/12/16 meeting with Betty and John at which Betty told him to fire Stacey Wright, but he refused to take any action; and Muzinich in mid-2/17 told both John and representatives of Help Unlimited that Betty was not allowed visits by her family. (¶ 12)

The 5AC alleges further that Betty was observed by long-time friends to be in significant cognitive decline during this period (¶ 13), which defendants knew or should have known, and which rendered her susceptible to coercion and undue influence. As a result, Patty obtained a $7,000 loan from Betty on 1/30/15; Muzinich began research regarding whether he could amend/revoke Betty’s power of attorney if she was incapacitated but he believed the current agent (Joi) was not acting in her best interests; Muzinich exerted undue influence to procure the $150,000 for the Boys & Girls Club of SB, where he served on the Board of Directors, but failed to disclose this conflict of interest; Patty asked for and received gifts totaling $92,000 over a 2-year period; a caregiver on 8/25/16 witnessed Patty take money from Betty and tell her Joi had drugged or poisoned her, and learned that Betty was paying Patty’s rent; the directory of home care services with Help Unlimited on 9/15/16 confirmed Betty’s susceptibility to undue influence in stating that Patty held a tremendous amount of control over Betty and had the ability to convince her who to like; Muzinich in 3/17 authorized Patty to go to Merrill Lynch with Betty to close certain accounts and transfer funds to other accounts, although Merrill Lynch refused to comply; in late 2016 to early 2017, Muzinich began to plan to coerce Betty into creating the Betty J. Stephens Family Foundation, without consulting plaintiffs. (¶ 14)

Further, defendants took steps to exercise undue influence over Betty by medicating, isolating, and alienating her from her family in various ways, including requiring plaintiffs to call in advance of visiting Betty and not to track Betty, removing Joi’s clothing from Betty’s residence; meeting with Betty to formulate a plan to remove family members as successors; prohibiting John from entering Betty’s residence and telling him there was a restraining order to keep her family away; preventing Betty from attending four mediations involving John and Betty and their representatives; changing the gate passcode to Betty’s residence; erasing all family members’ phone numbers from Betty’s cell phone and leaving only the numbers for Muzinich, Patty, Stacey Wright, and another caretaker; providing John with a care plan that the family would have only limited access to Betty; Patty threatening to file a restraining order against plaintiffs, and Muzinich telling John and Help Unlimited that Betty was not allowed to be seen by her family. (¶ 15)

The causes of action are based upon these allegations. Each of the elder abuse causes of action, the professional negligence cause of action, and the breach of fiduciary duty cause of action allege that, as a result of defendants’ conduct, plaintiff has suffered consequential financial harm/detriment, and has suffered general damages as a result of being alienated and separated from Betty. The negligence/legal malpractice and breach of fiduciary duty causes of action alleges that defendants breached the standard of care by (1) charging unconscionable fees, (2) intentionally concealing facts material to Joi’s representation, and (3) committing the conduct alleged in ¶¶ 12-15 (articulated above) [Note: The breach of fiduciary duty cause of action refers to ¶¶ 13-16, rather than ¶¶ 12-15; ¶ 16 contains no substantive allegations, and is merely the initial paragraph in the 1st cause of action, which incorporates the allegations of all previous paragraphs]. The conversion cause of action alleges that Joi is also a named beneficiary of The Stephens Family Trust, and that defendants wrongfully exercised control over and took possession of Betty’s and/or Joi’s finances and personal property, prevented Betty and/or Joi to have access to Betty’s finances and/or personal property, destroyed Betty’s and/or Joi’s finances and personal property, and refused to return Betty’s and/or Joi’s finances and/or personal property after demand was made. Finally, Joi seeks an accounting, because the trusts and accounts in question are so complicated that an ordinary legal action demanding a fixed sum is impracticable.

One day after the 5AC was filed, Joi filed a Declaration to Commence Action as Decedent’s Successor in Interest, pursuant to Code of Civil Procedure section 377.32 (a previous declaration had been filed on January 24, 2019). The declaration identifies Betty as her mother and attaches a copy of Betty’s death certificate. It states that no proceeding is pending for administration of Betty’s estate, she is Betty’s successor in interest as defined in Code of Civil Procedure section 377.11; and no other person has a superior right to commence the action or be substituted for Betty. She attaches excerpts from Betty’s will (naming her executor) and trust (naming her successor trustee) as evidence of her status as successor in interest.

Back on March 5, 2019, each of the three grandchildren plaintiffs filed declarations pursuant to Section 377.32. The declarations identify Betty as their deceased grandmother, that no proceeding is pending to administer her estate, that each is a legatee under Betty’s will and a beneficiary of The Stephens Family Trust, and that each is one of Betty’s successors in interest as defined in Section 377.11.

Demurrer: Defendants’ demurrer contends that each cause of action (1) fails to state facts sufficient to constitute a cause of action because it (a) fails to show Joi’s standing to bring the cause of action, (b) the successor in interest declarations by Joi and by the grandchildren are insufficient to show their capacities to bring the causes of action, and (2) the cause of action is uncertain. With respect to the breach of fiduciary duty cause of action, the demurrer ads a contention that there is a defect in the parties.

Motion to strike: The notice of motion to strike seeks to strike the following from the 5AC:

(1) ¶ 12, p. 4:4-7 [located within general allegations] (regarding McRoy being the handling attorney assigned to represent Joi with respect to small claims actions and one of Joi’s LLCs);

(2) ¶ 23, p. 11:1-3 [located within financial elder abuse cause of action; the identical allegation also exists within the physical elder abuse, professional negligence, and breach of fiduciary duty causes of action, but are not challenged by the motion to strike] (that plaintiff suffered general damages as a result of being alienated and separated from Betty);

(3) ¶ 33, p. 12:22-26 [located within professional negligence cause of action] (that defendants breached the standard of care by charging unconscionable fees, intentionally concealing facts material to Joi’s representation, and by the conduct set forth in ¶¶ 12-15); and

(4) ¶ 37, p. 13:15-19 [located within breach of fiduciary duty cause of action] (that defendants breached duties by charging unconscionable fees, intentionally concealing facts material to Joi’s representation, and by the conduct set forth in ¶¶ 13-16].

Plaintiffs have opposed the demurrer and motion to strike.

ANALYSIS: The demurrer is sustained without leave to amend, as it relates to plaintiffs John Stephens, Ryan Chacon, and Alexandra Djordjevic, who have no standing to pursue the sole cause of action in which they are alleged to be plaintiffs, i.e., the second cause of action for physical elder abuse. The demurrer is sustained, with leave to amend, with respect to its contention that the 5AC is rendered uncertain based upon the failure to articulate the capacities in which it is being asserted, with respect to the professional negligence, breach of fiduciary duty, conversion, and accounting causes of action only. In all other respects, the demurrer is overruled. The motion to strike is denied in its entirety. To the extent that the Court has allowed plaintiff leave to amend, the Court will direct plaintiff to file and serve the amended pleading no later than October 8, 2019.

Certainly, the 5AC is far from a model pleading, and is defective in a number of respects; only those defects properly raised by the demurrer or motion to strike are currently before the Court for resolution. However, the demurrer and motion to strike are similarly far from model exemplars of such devices, and are drafted in such a scattershot and convoluted manner, containing little clear articulation of its arguments, that the Court has had difficulty in ascertaining the precise nature of the claims raised. As a result, the Court has resolved on the merits those claims that it has been able to ascertain. To the extent that any other issues were intended to have been raised by the demurrer or motion to strike, but which the Court was not able to clearly ascertain, they are overruled for failure to meet their burden of persuasion.

Demurrer

The court’s task in ruling on a demurrer is to determine whether the complaint states a cause of action. (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) A demurrer admits the truth of all material facts properly pleaded (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967), no matter how unlikely or improbable they may be (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604), or how unlikely it will be that plaintiff will be able to prove the claim (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214). The court also assumes the truth of all reasonable inferences that may be drawn from the properly pleaded facts. (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1083.) The assumption of truth does not apply, however, to contentions, deductions, or conclusions of law or fact. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters, and therefore lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.)

The demurrer very confusingly sets out concepts of standing and concepts of capacity, sometimes intermixing the concepts, and rarely sufficiently explaining the demurrer’s contentions. The Court’s rulings on the demurrer are constrained by these issues, and it has resolve the issues to the best of its ability to identify the issues which are being raised.

A. Joi’s standing as successor in interest.

To the extent that the demurrer challenges Joi’s standing to pursue her mother’s causes of action, as successor in interest to her mother, the demurrer is overruled.

Pursuant to Code of Civil Procedure section 377.30, a cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent’s successor in interest, and an action may be commenced by the decedent’s personal representative, or if there is none, by the decedent’s successor in interest.

ursuant to Code of Civil Procedure section 377.32, a person seeking to commence an action as the decedent’s successor in interest must execute and file a declaration containing certain information including, among other things, that there is no proceeding pending for administration of the decedent’s estate, that the declarant is the decedent’s successor in interest (as defined by Code of Civil Procedure section 377.11) and succeeds to the decedent’s interest in the action, and that no other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding.

Section 377.11, referenced in Section 377.32, defines “decedent’s successor in interest” as “the beneficiary of the decedent’s estate or other successor in interest who succeeds to a cause of action or to a particular item of the property that is the subject of a cause of action.”

The demurrer contends that, in order for Joi’s declaration under Code of Civil Procedure section 377.32 to be legally sufficient, it must state specific facts to support her allegations that she succeeds to a particular item of property that is the subject of the cause of action, e.g., the $150,000 of Betty’s that she contends was donated to the Boys & Girls Club, through defendants’ exertion of undue influence upon her. Defendants’ position grossly overstates the requirements of Section 377.32.

In this case, Joi’s latest declaration, filed pursuant to Section 377.32, states all of the facts required for her to pursue the causes of action alleged in the 5AC as Betty’s successor in interest. There is no pending action for administration of Betty’s estate. However, Joi is Betty’s sole living child, who was named by Betty to be both executor of her estate and successor trustee of her trust. She declares that there is no person with a superior right to commence an action on Betty’s causes of action. The causes of action alleged do not, as defendants argue, relate only to specific items of property, but rather allege defendants’ mishandling of Betty’s finances as a whole, and/or actions which constituted financial elder abuse of Betty. Joi does not need, to use defendants’ example, to provide specific facts that would entitle her to succeed to Betty’s interest in the precise $150,000 which the complaint alleges was transferred to the Boys & Girls Club as a result of defendants’ exercise of undue influence over Betty, and allegedly constituted a conflict of interest given attorney Muzinich’s position on the Board of Directors of that entity. Such a requirement would be nonsensical, in the context of the allegations in this action.

The purpose of Sections 377.32 and 377.11 is to allow the court to determine if the party has a right to inherit the lawsuit from the decedent. Here, the terms of Joi’s declaration pursuant to Section 377.32 adequately establishes her status as successor in interest to Betty, for purposes of pursuing claims which Betty had at the time of her death.

B. Grandchildren’s standing as successors in interest.

To the extent the demurrer challenges the standing of Betty’s grandchildren to pursue the cause of action for physical elder abuse, based upon their declarations submitted pursuant to Code of Civil Procedure section 377.32, the demurrer is sustained, without leave to amend.

The grandchildren are only plaintiffs in the second cause of action for physical elder abuse. Elder abuse causes of action have specific statutory standing requirements. An Elder Abuse action is on behalf of the elder with respect to the conduct that was directed toward the elder. When the victim of elder abuse is alive, it is the elder who has standing to pursue the claims (which may be pursued by a conservator, attorney-in-fact, guardian ad litem, or other person entitled to seek relief, if the elder is not competent to do so). (See, e.g., Wel. & Inst. Code, § 15657.03, subd. (a)(2).) After the death of the elder, the right to commence or maintain an elder abuse action passes to the personal representative, if there is one. If there is no personal representative, the right passes to an intestate heir whose interest is affected, the decedent’s successor in interest, or an interested person as defined by Probate Code section 48 (i.e., an heir or other person having a property right in the trust estate or estate of a decedent which may be affected by the proceeding), but only if the requirements of Code of Civil Procedure section 377.32 are met. (Wel. & Inst. Code, § 15657.3, subd. (d).)

While Section 377.32 expressly acknowledges that there may be circumstances where it is appropriate for more than one person to execute an affidavit under this section (see, e.g., § 377.32, subd. (b)), that is only true where each such person can truthfully make the declarations set forth in subdivision (a), including that “No other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding.” In this case, none of the grandchildren have attempted to make that required assertion in their declarations, and according to the information contained in Joi’s declaration, none of them would be able to truthfully do so. Joi is the proper successor in interest to her mother’s causes of action, both in being her mother’s sole living child, and in having been named by her mother as both the executor of her will, and the successor trustee of her trust.

Because there is no basis under which the grandchildren have standing to pursue Betty’s physical elder abuse claims, the demurrer interposed to the grandchildren’s claims on this basis is sustained, without leave to amend. As a result of this ruling, the grandchildren are no longer plaintiffs in this action.

C. Joi’s capacity

Defendants further separately demur to each cause of action in 5AC, based upon their contention that Joi has not adequately alleged in what capacity she is pursuing each cause of action. The 5AC expressly alleges, at ¶ 1, that Joi is appearing in this action in her individual capacity and/or as trustee and named beneficiary of the Stephens Family Trust, and/or as executor, personal representative and legatee of Betty’s will. Further, as a result of having filed the successor in interest declaration, her individual capacity includes the claims belonging to Betty, which Joi as an individual has brought as Betty’s successor-in-interest.

As noted above, the concepts of standing and capacity are in some ways related, and the demurrer does not always keep the two concepts separate and distinct.

1. Elder abuse causes of action.

Since, as noted above, elder abuse causes of action are personal to the elder allegedly harmed by them, and can be asserted after the elder’s death by the elder’s successor in interest, if the requirements of Code of Civil Procedure section 377.32 are met (see Wel. & Inst. Code, § 15657.3, subd. (d)), and since the Court has found that Joi has properly complied with Section 877.32 and established that she is the proper successor in interest to Betty’s claims, the demurrer must be overruled to the extent that it asserts that the 5AC does not properly allege Joi’s capacity to pursue the first cause of action for financial elder abuse, and the second cause of action for physical elder abuse. Since the Section 377.32 declaration establishes that there is no pending proceeding for administration of Betty’s estate, and therefore no personal representative who could pursue the elder abuse causes of action, and since a Trustee of the trust is not one who is legally authorized to pursue a cause of action for elder abuse for a deceased elder, the 5AC is not deficient for failing to specify that the elder abuse causes of action are being pursued by Joi in her “individual” capacity as successor in interest to Betty. The demurrer on this basis is therefore overruled with respect to the two causes of action for elder abuse.

2. Professional negligence cause of action

The cause of action for professional negligence alleges that defendants obtained confidential financial and other information from Joi during their representation of her, and failed to use sufficient skill and care in their representation of Betty and with respect to their conflicts of interest involving their representation of both Betty and Joi. It alleges that defendants breached the standard of care by charging unconscionable fees, by intentionally concealing facts material to Joi’s representation, and by committing the conduct alleged in ¶¶ 12-15, which include such things as the exertion of undue influence over Betty to coerce the transfer to the Boys & Girls Club, planning to seek to have Joi removed as Betty’s successor trustee even though Betty was not competent to make changes, trying to coerce Betty into creating a foundation without consulting Joi, trying to make Betty transfer money from her Merrill Lynch accounts, isolating Betty from her family, etc.

Defendants contend that the cause of action is uncertain, in that it is not clear in which capacity Joi is bringing the claim. They argue that Joi cannot sue them for professional negligence in her individual capacity for malpractice committed against Betty, and argue that only the executor or the trustee, but not both, would have standing to bring the claim. The demurrer does not, however, legally establish that Joi cannot permissibly bring the malpractice action as successor in interest to Betty. Similarly, it does not legally establish that the malpractice action could only be brought against defendants by either the executor of the estate or the trustee of the trust, but not both.

In opposition to the demurrer, Joi simply asserts that she has both standing and capacity to bring this cause of action, as successor in interest to Betty, since the cause of action survived Betty’s death. The terms of the professional negligence cause of action, however, do not state that it is solely a claim belonging to Betty, and under its express terms is based in part upon the defendants’ acquisition of confidential information from her, in the course of their representation of her in various ways (her own estate planning, as well as the other representations), and the misuse of that information to her detriment and to Betty’s detriment.

The Court can infer from the 5AC’s allegations that Betty’s finances were relatively complex, and that her estate, as reflected both in her will and in The Stephens Family Trust, likely contained significant assets. It may well be true that portions of the professional negligence cause of action are appropriately brought by Joi on her own behalf, by Joi as successor in interest to Betty, by Joi as executor of Betty’s estate, and/or by Joi as successor trustee of the Stephens Family Trust, but that it is impossible to ascertain in precisely what capacity(ies) the professional negligence claim(s) is (are) being brought, because of the complexities of the accounts, dealings, and finances, that are involved.

Even so, the Court will agree that the cause of action is rendered uncertain by its failure to articulate in which capacity(ies) Joi is or may be acting in bringing the cause of action. If brought solely in her individual capacity, the cause of action would differ tremendously from a claim brought on Betty’s behalf as her successor in interest, or a claim brought in multiple capacities. The Court will therefore sustain the special demurrer to the professional negligence cause of action on this ground, with leave to permit plaintiff to allege the capacity or capacities in which she is asserting, or is informed and believes she is asserting, the cause of action.

3. Breach of fiduciary duty

The claim for breach of fiduciary duty incorporates all of the prior allegations, and alleges further that defendants owed “Joi” various fiduciary duties, including the obligation of candor, undivided loyalty, avoidance of conflicts of interest, disclosure of actions, competence, communication, and confidentiality. It alleges that defendants breached the duties by charging unconscionable fees, intentionally concealing facts material to Joi’s representation, and committing the actions alleged in ¶¶ 13-16. As a result, Joi alleged that she suffered financial harm and general damages.

Defendants once again contend that the complaint is uncertain, in that it cannot be determined in what capacity Joi is asserting the cause of action. While the complaint does not directly allege any capacity, and while plaintiff’s opposition to the demurrer expressly contends that the cause of action is being brought in multiple capacities, the only conclusion that the substance of its allegations would support is that the cause of action is being asserted by Joi as an individual, and not in any other capacity. Unlike the professional negligence cause of action, which expressly refers to conduct committed by defendants in representing Betty, and involving conflicts of interest in representing both Joi and Betty, the breach of fiduciary duty cause of action is expressly based upon the fiduciary obligations owed to Joi, which only arise from her individual representation by defendants. No mention is made of obligations owed to Betty, thereby excluding the cause of action from being one in which Joi is appearing in a representative capacity, or with respect to Betty’s will or trust. The peripheral involvement of the trust in the alleged misconduct (i.e., in defendants’ alleged attempts to determine whether Joi could be removed as both trustee and as Betty’s power of attorney, in spite of Betty’s then-existing incapacity to make such changes), or that property that either belonged to the trust or would pass through the will upon Betty’s death was involved, does not alter that conclusion. It was the fact that those actions were allegedly taken in breach of the fiduciary duties which defendants owed to Joi, herself, that creates any sort of breach of fiduciary duty claim.

The demurrer did not challenge the substance of the cause of action itself—it did not address whether the conduct in question actually breached fiduciary duties which were owed by defendants, or whether the damages sought were proper. It only challenged the cause of action only on capacity and standing grounds. The demurrer’s addition of a “defect in parties” claim related to this cause of action was also simply a contention that defendants could not ascertain in which capacity plaintiff was asserting the claim.

To the extent that plaintiff might have intended to assert the cause of action in multiple capacities, she failed to make any allegations that would support the existence of the cause of action in any capacity other than her own individual capacity. Because the cause of action is only susceptible to the interpretation that Joi is pursuing it solely in her individual capacity, but yet Joi has opposed by contending that she is entitled to bring the cause of action in multiple capacities, the Court will sustain the demurrer to this cause of action, with leave to amend to permit plaintiff to allege the capacity or capacities in which she is asserting, or is informed and believes she is asserting, the cause of action.

4. Conversion

The conversion cause of action alleged that Joi is a named beneficiary of the Stephens Family Trust. It further alleges that defendants wrongfully exercised control over Betty’s finances and personal property, and substantially interfered with Betty’s and plaintiff’s finances and personal property by taking possession of them, and/or destroying them, and/or failing to return them after demand. With respect to Betty’s finances and personal property only, it alleges that defendants prevented Betty and/or plaintiff from having access to them. Such actions were taken without plaintiff’s consent, and plaintiff was harmed.

Defendants again demur to the claim, on the basis that it is uncertain in which capacity Joi is pursuing the claim. In opposition to the demurrer, plaintiff asserts only that she has standing and capacity because she is the successor-in-interest to Betty and has the standing and capacity to bring a cause of action that survives her death.

The Court agrees that the cause of action is made uncertain by the failure to allege the capacity or capacities in which it is being asserted. The cause of action is very generally worded, making it difficult to ascertain precisely what it is that plaintiff contends was converted. It refers both to finances and personal property owned by Betty, and to finances and personal property owned by Joi. The ambiguity makes it impossible for the Court to ascertain from the allegations of the complaint the capacities in which Joi is bringing the action, as it was able to do with respect to several of the other causes of action. The cause of action could alter dramatically, depending upon the capacity or combination of capacities in which it is being pursued. Consequently, the Court will sustain the demurrer on this ground, with leave to amend to permit plaintiff to allege the capacity or capacities in which she is asserting, or is informed and believes she is asserting, the cause of action.

5. Accounting

The cause of action for accounting incorporates all previous allegations, alleges that a fiduciary relationship existed between Betty, Joi, and defendants, and that the trusts and accounts in question are so complicated than an ordinary legal action demanding a fixed sum is impracticable, and a balance due from defendants to Joi can only be ascertained by an accounting.

An accounting cause of action is equitable in nature, and may be brought to compel the defendant to account to the plaintiff for money or property where a fiduciary relationship exists between the parties, or where, even though no fiduciary relationship exists, the accounts are so complicated that an ordinary legal action demanding a fixed sum is impracticable. (See, e.g., Civic Western Corp. v. Zila Industries (1977) 66 Cal.App.3d 1, 14.) Plaintiff has alleged both circumstances, including that a fiduciary relationship existed between Betty, Joi, and defendants.

The demurrer does not address the requirements for a claim for accounting, again asserting only that Joi has not alleged sufficient facts to establish standing, to the extent she is suing on behalf of Betty (see above), and that she has not specified the capacity in which she is bringing the action. In opposition to the demurrer, Joi simply asserts that she is Betty’s successor in interest, and has both standing and capacity to bring the claim, which survives Betty’s death. To the extent that this implies that the accounting cause of action being asserted belongs to Betty, and is being asserted by Joi as Betty’s successor in interest, that is not clear from the allegations of the complaint, particularly in that the cause of action expressly alleges the fiduciary relationship included Joi, and not just Betty. Because the nature and scope of the accounting action is uncertain from the allegations because of plaintiff’s failure to allege in what capacity or capacities it is being asserted, the Court will sustain the demurrer, with leave to amend to permit plaintiff to allege the capacity or capacities in which she is asserting, or is informed and believes she is asserting, the cause of action.

D. Joi’s standing to bring conversion claim.

Defendants demur to the conversion cause of action, described above (See section 1.C.4., above), on the ground that since she has not alleged sufficient interest in any of the property allegedly converted to support the existence of a conversion claim. Specifically, they contend that a conversion plaintiff must own or possess, or have a right to possess, the allegedly converted property. Defendants therefore contend that claim is insufficiently alleged.

A “failure to allege sufficient facts” claim is a general demurrer to the cause of action, which can be sustained only if the allegations are insufficient to state any cause of action, even if it is not the one intended by the plaintiff. (See Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38-39.) The cause of action expressly alleges that defendants committed conversion, in part by taking possession of plaintiff’s finances and/or personal property, and failing to return plaintiff’s finances and/or personal property, after demand was made to do so. That is allegation of a direct ownership interest in property alleged to be converted, sufficient to overcome the general demurrer made on the basis that insufficient interest in property had been alleged to support the conversion cause of action. As a result, the general demurrer to the conversion cause of action is overruled.

Motion to strike

For the reasons articulated herein, the motion to strike is denied in its entirety.

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1).) a motion to strike lies either to strike out any irrelevant, false, or improper matter inserted in a pleading, or to strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436.) As is true with demurrers, the grounds for a motion to strike must appear on the face of the challenged pleading, or from any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437, subd. (a).) Additionally, in ruling on a motion to strike, the allegations in the complaint are considered in context and presumed to be true. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

If the motion seeks to strike an entire paragraph, cause of action, count, or defense of the pleading, the notice may refer to the part to be stricken by its number. Otherwise, the notice of motion must quote the portions to be stricken in full. Each item to be stricken must be numbered consecutively in the notice. (Cal. Rules of Court, rule 3.1322.)

In this case, the Notice of Motion is very specific in articulating matters to be stricken, i.e., (1) ¶ 12, p. 4:4-7; (2) ¶ 23, p. 11:1-3; (3) ¶ 33, p. 12:22-26; and (4) ¶ 37, p. 13:15-19. In compliance with the requirements of Rule 3.1322(a), the notice of motion quotes the specific sentence the motion seeks to have stricken, and numbers the matters to be stricken consecutively. The Notice of Motion does not seek to strike any other matters; the list of matters to be stricken ends at No. 4.

In the memorandum of points and authorities in support of the motion to strike, however, vast additional portions of the 5AC, and indeed the entire 5AC, are discussed, and arguments made why they should be stricken. At p. 2, line 14, the motion asks for the entire 5AC to be stricken. (P. 2, line 14.) It then proceeds to request that the entire causes of action for professional negligence (p. 2, lines 16-24) and breach of fiduciary duty (p. 2, line 25, through p. 3, line 4) be stricken, on a wide variety of grounds. This is in blatant violation of Rule 3.1322.

Because the California Rules of Court absolutely require the Notice of Motion to Strike to number and specify the matters which the motion seeks to strike, this Court will deny the motion outright to the extent that it seeks to strike any matter not specified in the Notice of Motion.

The Court will specifically analyze and address only those matters articulated in the Notice of Motion. The manner in which the motion is structured makes it exceptionally difficult for the Court to determine where the precise matters are discussed, and the Court is forced simply to attempt to ascertain the basis for striking the specified language, to the extent it is able.

A. ¶ 12, p. 4:4-7

The motion seeks to strike the following language from the 5AC’s general allegations: “More specifically, MCROY was the handling attorney assigned to represent JOI with respect to: 1) two small claims court actions beginning in or about November, 2013; and 2) one of JOI’s LLCs from in or about mid-2014 until approximately April 22, 2016.”

In a variety of places, defendants’ memorandum of points and authorities addresses the two small claims actions, and the representation of one of JOI’s LLCs. However, rather than addressing the propriety of striking this statement from the 5AC’s general allegations, the motion to strike makes convoluted arguments about why claims of malpractice or breach of fiduciary duties based on these representations would be barred (e.g., by the statute of limitations, or by the litigation privilege), or why particular parties would lack standing to bring such claims. However, it is apparent to the Court that the causes of action for professional negligence and breach of fiduciary duty are not based upon any claim that defendants were negligent in these representations. What defendants appear unable to comprehend is that the negligence and/or breach of fiduciary duty that forms the basis for these claims, at least with respect to Joi, individually, was in defendants’ alleged misuse of the confidential information they obtained about Joi in the course of these representations, as well as in assisting her with her own estate planning, and are not based upon negligence in the conduct of the representations themselves.

In that respect, the quoted allegation is relevant to the complaint, and cannot be permissibly stricken as improper, or even as surplussage, because it provides a part of the factual basis for the allegation that confidential information was obtained from Joi in the course of defendants’ representations of her, which was then misused to her detriment, including in defendants’ conduct in their legal representation of Betty, and the additional conduct that appears to go beyond legal representation.

Because the motion does not establish the propriety of striking this language, the motion will be denied as to it.

¶ 23, p. 11:1-3.

The motion seeks to strike the following language from the first cause of action for financial elder abuse: “As a further result of the conduct of Defendants, Plaintiff has also suffered general damages [a] as result of, among other things, being alienated and separated from BETTY, in an amount to be determined.”

The only discussion of general damages being suffered by Joi, contained within the points and authorities submitted in support of the motion to strike, is its argument that emotional distress damages are not recoverable in legal malpractice actions, except for when a client is wrongfully sent to prison.

The Notice of Motion, however, does not seek to strike this sentence from the professional negligence cause of action. Rather, the motion expressly seeks to strike the language found in ¶ 23, at p. 11:1-3 of the 5AC. That language is located within the first cause of action for financial elder abuse.

Because the motion does not seek to strike any such language from the professional negligence cause of action, and because the points and authorities do not address the propriety of a claim for emotional distress damages made by a successor-in-interest to a financial elder abuse cause of action, the motion to strike ¶ 23, p. 11:1-3, must be denied.

¶ 33, p. 12:22-26; ¶ 37, p. 13:15-19.

The motion seeks to strike the following language from the third cause of action for professional negligence: “Plaintiff contends said Defendants breached the standard of care: 1) by charging unconscionable fees; 2) by intentionally concealing facts material to JOI’s representation; and 3) as set forth above, including but not limited to, paragraphs 12, 13, 14, and 15.”

The motion further seeks to strike the following language from the fourth cause of action for breach of fiduciary duty: “Said Defendants repeatedly breached these duties in various ways, including but not limited to: 1) charging unconscionable fees; 2) intentionally concealing facts material to JOI’s representation; and 3) as set forth above, including but not limited to paragraphs 13, 14, 15, and 16.”

It is perplexing to the Court as to why defendants would seek to strike from the 5AC the allegations which constitute, in part, plaintiff’s articulation of the manner in which defendants breached the standard of care and/or their fiduciary duties. Clearly, their points and authorities went far beyond these allegations, in making wide-sweeping arguments about the validity of the causes of action as a whole. The motion itself never explains why it would be appropriate to strike from the 5AC these specific allegations. As a result, the Court finds that the motion fails to meet its burden of persuasion with respect its claim that these specific allegations should be stricken, and to the extent the motion seeks to strike them, it is denied.