2016-00195529-CU-PO

Deborah Rosenbloom vs. Yolanda Aguilar

Nature of Proceeding: Hearing on Demurrer to Second Amended Complaint

Filed By: Brumfield, Eric C.

Defendant Summer Place Apartments and Pamela Phelp’s demurrer to the 2nd cause of action in the Second Amended Complaint is unopposed and is sustained with leave to amend for failure to state facts sufficient to constitute a cause of action.

This matter was continued to this date based upon plaintiff’s representation that she was self-represented was seeking new counsel. The court granted a 60 day continuance and ordered any opposition to the demurrer to be filed and served on or before October 5, 2018. Plaintiff has now filed a second request for a continuance on October 10, 2018, stating that she has been unable to hire an attorney. She seeks an additional 30 days continuance. The Court denies any further request for a continuance. However, the Court will grant a longer than usual time for the filing of a Third Amended Complaint. That date is set for November 9, 2018.

This action involves claims by Plaintiff for damages caused by the alleged acts of Defendants Summer Place Apartments and Pamela Phelps in the disposition of Plaintiffs deceased mother’s personal property

The 2nd cause of action for Negligent Infliction of Emotional Distress alleges as follows:

Defendants and each of them negligently and without legal cause after Ann Mandelstam’s death removed and converted all decedent’s personal property. Defendants and each of them negligently and/or intentionally assert that a power of attorney signed by decedent prior to her death continued after death to give each of them authority over decedent’s estate property. All defendants knew or should have known that the power of attorney terminated at the death of Ms. Mandelstam. This conduct and subsequent loss of decedent’s property constitutes fraud upon the estate of Ann Mandelsom. As a result of this negligence and fraud, plaintiff has suffered and continues to suffer emotional distress in an amount to be determined.”

The demurrer to the cause of action for negligent infliction of emotional distress is sustained with leave to amend for failure to state facts sufficient to constitute a cause of action. The allegations of emotional distress suffered by the plaintiff are incongruent with the allegations that decedent’s personal property was converted after her death. No specific facts are alleged that would support a claim for negligence resulting in emotional distress suffered by plaintiff. Based on the facts alleged, no valid claim for negligent infliction of emotional distress by decedent or plaintiff is stated either on a direct victim theory or a bystander theory.

Plaintiff may file and serve a 3rd amended complaint on or before November 9, 2018.

Defendant shall file and serve a response within 30 days of service of the 3rd
Amended Complaint, 35 days if served by mail.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.

Item 9 2016-00195529-CU-PO

Deborah Rosenbloom vs. Yolanda Aguilar

Nature of Proceeding: Motion to Strike

Filed By: Brumfield, Eric C.

Defendant Summer Place Apartments and Pamela Phelps Motion to Strike Claim for punitive damages is unopposed but is denied.

Objections to a complaint’s prayer for damages typically lie with a motion to strike. ( Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 384-385 [“The appropriate procedural device for challenging a portion of a cause of action seeking an improper remedy is a motion to strike.”]) As such, it is appropriate to bring a motion to strike when a complaint improperly seeks punitive damages. (Id.; see also Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1561-1562; Grieves v. Sup.Ct. (Fox) (1984) 157 Cal.App.3d 159, 164.)

Motions to strike are disfavored. Courts considering such motions must presume the allegations contained therein are true and must consider those allegations in context. ( Clauson v Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

The current allegations concerning defendant’s conduct regarding the theft cause of action (which has not been demurred to) is as follows: “Defendants and each of them intentionally and without legal cause committed theft of decedent Ann Mandelstam’s personal property prior to and subsequent to her death valued at $51,300.00.”

California courts require that specific facts be pled in support of punitive damage allegations; mere conclusions are not enough. (Hilliard v. A.H. Robbins (1983) 148 Cal.App.3d 374, 391; Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6-7; Grieves v. Superior Court, supra, 157 Cal.App.3d at 166.)

However, in this case defendant incorrectly contends that the only basis for the punitive damages is the “fraud” language in the cause of action for Negligent Infliction of Emotional Distress. However, the theft cause of action alleges intentional conduct (conversion) of decedent’s property by the moving parties. This is sufficient to support a claim for punitive damages. Indeed, conversion is an intentional tort for which punitive damages may be awarded. (Collin v. American Empire Insurance Co. (1994) 21 Cal.App.4th 787, 812, [conversion is an intentional tort]; Ferraro v. Pacific Fin. Corp

. (1970) 8 Cal.App.3d 339, 351, [“Exemplary damages are properly awardable in an action for conversion, given the required showing of malice, fraud, or oppression”].)

The minute order is effective immediately. No formal order pursuant to CRC Rule

3.1312 or further notice is required.