Case Number: VC066055 Hearing Date: August 22, 2017 Dept: SEC

MCKENZIE v. JIMENEZ

CASE NO.: VC066055

HEARING: 08/22/17

JUDGE: RAUL A. SAHAGUN

#4

TENTATIVE ORDER

I. Defendant RAUL JIMENEZ’s demurrer to the first amended complaint (“FAC”) of Plaintiffs is SUSTAINED with 10 days leave to amend.

II. Defendant RAUL JIMENEZ’s motion to expunge lis pendens is CONTINUED to Thursday, September 21, 2017 at 1:30 p.m. in Dept. SE-C.

Moving Party to give notice.

This action to quiet title was filed on 1/9/17. Plaintiffs allege causes of action for: (1) Quiet Title; (2) Undue Influence; (3) Cancel Trust Amendment and Deed; and (4) Negligent Infliction of Emotional Distress.

The FAC alleges that Defendant was a Catholic priest in Mexico, who would often come to California and conduct masses. (FAC, Par. 13.) Defendant suggested to Plaintiff Sophia McKenzie (“Sophia”)’s mother (“the Decedent”) that the Premises remain with the church so the children would not quarrel over the premises. (FAC, Par. 15.)

Par. 16 alleges that on 5/4/07, Plaintiff Sophia followed her mother’s wishes and transferred her entire title interest in the Premises to her mother and her mother transferred her entire title interest to the Trust. Plaintiff’s mother amended the Trust to make Defendant the sole beneficiary of Trust assets, including the Premises.

Par. 17 alleges that Plaintiffs’ mother passed away on 11/16/07.

Par. 18 and Ex. C provides that on 1/27/09, Plaintiff Sophia signed a quitclaim deed to transfer the Premises from the Trust to the Defendant. The other co-trustee, Plaintiff David Lopez (“David”), never signed the quitclaim deed. Par. 19 alleges that the Trust required both co-trustees to agree and sign off on every decision regarding transfer unless otherwise agreed between them.

Demurrer

Defendant RAUL JIMENEZ demurs to the FAC on the grounds that it fails to state facts sufficient to constitute a cause of action and is barred by the statute of limitations per CCP 318 and 366.3.

First and Third Causes of Action – Quiet Title and Cancellation of Instrument

Defendant contends that the action is time-barred under CCP 366.3 and 318.

CCP 366.3 provides, “(a) If a person has a claim that arises from a promise or agreement with a decedent to distribution from an estate or trust or under another instrument, whether the promise or agreement was made orally or in writing, an action to enforce the claim to distribution may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply. (b) The limitations period provided in this section for commencement of an action shall not be tolled or extended for any reason except as provided in Sections 12, 12a, and 12b of this code, and former Part 3 (commencing with Section 21300) of Division 11 of the Probate Code, as that part read prior to its repeal by Chapter 174 of the Statutes of 2008. (c) This section applies to actions brought on claims concerning persons dying on or after the effective date of this section.”

Decedent died on 11/16/07. Thus, Plaintiffs’ claims are time-barred because the FAC, which contests distribution of the Decedent’s trust, was filed more than one-year from Decedent’s death per CCP 366.3.

Further, “the limitations period that would have been applicable does not apply.” (CCP 366.3(a).) Therefore, CCP 318, which prescribes a five-year statute of limitations for “actions for the recovery of real property” does not apply.

Even if it were to apply, the action is also time-barred under CCP 318 as to Plaintiff Sophia. CCP 318 provides, “No action for the recovery of real property, or for the recovery of the possession thereof, can be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seised or possessed of the property in question, within five years before the commencement of the action.”

On 1/27/09, Plaintiff Sophia signed a quitclaim deed to transfer the Premises from the Trust to the Defendant. (FAC, Par. 18 and Ex. C.) The recordation of the deed, quitclaiming the interest to Defendant occurred on 2/25/09 (FAC, Ex. C), which is more than five years from the filing date of this complaint per CCP 318. Thus, the action is also time-barred under the five-year statute of limitations as to Plaintiff Sophia.

Plaintiff David Lopez (“David”) contends CCP 318 does not apply to him because he had been residing at the premises prior to the Deceased’s death, up until December of 2016. (FAC, Par. 24.) Therefore, Plaintiff Lopez was “seised” of the property and CCP 318 would not apply to him. However, CCP 366.3 is still applicable to Plaintiff Lopez.

To overcome the bar of CCP 366.3, Plaintiffs must allege facts supporting equitable estoppel. “[D]epending on the circumstances of each case, the doctrine of equitable estoppel may be applied to preclude a party from asserting the statute of limitations set forth in Code Civ. Proc., § 366.3, as a defense to an untimely action where the party’s wrongdoing has induced another to forbear filing suit. (McMackin v. Ehrheart (2011) 194 Cal.App.4th 128, 131.) Equitable estoppel… is not concerned with the running and suspension of the limitations period, but rather comes into play only after the limitations period has run and addresses itself to the circumstances in which a party will be estopped from asserting the statute of limitations as a defense to an admittedly untimely action because his conduct has induced another into forbearing suit within the applicable limitations period. Its application is wholly independent of the limitations period itself and takes its life, not from the language of the statute, but from the equitable principle that no man will be permitted to profit from his own wrongdoing in a court of justice. Thus, because equitable estoppel operates directly on the defendant without abrogating the running of the limitations period as provided by statute, it might apply no matter how unequivocally the applicable limitations period is expressed.” (Battuello v. Battuello (1998) 64 Cal. App. 4th 842, 847.)

The court finds that the FAC does not allege conduct on the part of Defendant that induced Plaintiffs to forbear suit within the applicable limitations period. Plaintiffs admit that Decedent died on 11/16/07. (FAC, Par. 17.) Pursuant to CCP 366.3, Plaintiffs had one year (from 11/16/07 to 11/15/08) to file any action that contests distribution of the Decedent’s Trust. The FAC does not allege any conduct by Defendant during this limitations period that induced Plaintiffs to forebear suit. In fact, Par. 18 alleges that after this limitations period had passed, in January 2009, Plaintiff Sophia transferred title to the premises from the Trust to the Defendant on her own accord. There is no indication that Defendant forced this transfer. Although Pars. 20-23 allege possible wrongful conduct by Defendant, this conduct occurred “after the title transfer” (FAC, Par. 21), which fell outside the limitations period. Thus, the FAC does not allege any conduct by Defendant before 11/15/08 that would have induced Plaintiffs to forbear suit prior to the running of the limitations period outlined in CCP 366.3.

Additionally, Plaintiffs contend that Sophia’s quitclaim recorded on 2/25/09 is void for lack of signatures of both trustees. However, this fact does not overcome Plaintiffs’ duty under CCP 366.3 to contest Decedent’s distribution of the Trust prior to 11/15/08. Plaintiffs admit that the Decedent amended the Trust prior to her death, making Defendant the sole beneficiary of Trust assets. (FAC, Par. 16.) Plaintiff David’s duty, as Co-Trustee, is to administer the trust in accordance with the Decedent’s wishes, which includes the amendment. If Plaintiffs David and Sophia object to this amendment, then the claims must be timely made pursuant to CCP 366.3.

Demurrer based on the bar of the statute of limitations as to the 1st and 3rd causes of action is SUSTAINED with 10 days leave to amend.

Second Cause of Action – Undue Influence

The court finds that CCP 318 does not apply to the 2nd cause of action for Undue Influence because it is not a claim pursuing title to the Premises but rather for money damages.

However, it is unclear if CCP 366.3 would apply to the claim. Par. 58 alleges that “Defendant used his authority and confidential relationship with Plaintiffs’ mother and manipulated Plaintiffs’ mother’s weakened and vulnerable state of mind, while she was away from her children, to unduly influence Plaintiffs’ mother to amend the Trust and give Defendants the Premises.” The Prayer seeks general, special, and double damages under Prob. Code 859. Although this claim is couched in terms of monetary damages, if the measure of damages is loss of the home that is being contested, is this not akin to a claim contesting the distribution of Decedent’s trust, and therefore CCP 366.3 should apply?

The court will hear from the parties on this issue, but is inclined to SUSTAIN the demurrer to the 2nd cause of action with 10 days leave to amend based on the same analysis above.

Fourth Cause of Action – NIED

The court finds that neither CCP 366.3 nor CCP 318 applies to the 4th cause of action for NIED. Plaintiffs allege that their NIED claim is based on Defendant’s actions commencing in 2007 and concluding in 2017 when he evicted Plaintiff Sophia from the Premises and took possession. (FAC, Pars. 68-69.) This is not a claim contesting distribution of the trust or a claim pursuing title to the premises.

However, NIED is not an independent cause of action, but the tort of Negligence. (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 796 n.4.) As such, NIED requires a legal duty to use due care. (Bogard v. Employers Casualty Co. (1985) 164 Cal.App.3d 602, 618.)

Although Plaintiff Sophia has alleged a relationship with Defendant as her spiritual advisor, it is unclear what Defendant’s duty is towards Plaintiffs David Lopez, Hugo Ramirez, Ruth Berrelleza, Benajamin Ramirez, Judith Guzman, and Josefina N. Urazoff Trust.

Accordingly, demurrer to the 4th cause of action is SUSTAINED with 10 days leave to amend.

Motion to Expunge Lis Pendens

Based on the court’s grant of leave to amend the FAC, Defendant RAUL JIMENEZ’s motion to expunge lis pendens is CONTINUED.