Case Number: BC665381 Hearing Date: January 17, 2018 Dept: 40

MOVING PARTY: Plaintiff / Cross-defendant Matthew Zarcal

OPPOSITION: Defendants / Cross-complainants Charlotte Heller, Kathi Studdon, and Lauren Solomon (demurrer only)

Plaintiff Matthew Zarcal sues defendants Charlotte Heller, Kathi Studdon, and Lauren Solomon for damages based on allegations that they failed to pay him overtime and minimum wages, made homophobic remarks, and published false statements that plaintiff physically abused, stole money from, and flirted with Heller.

Zarcal worked as Heller and her late husband’s live-in caretaker.

On June 16, 2017, plaintiff filed a complaint asserting 11 causes of action, including Labor Code violations, defamation, wrongful termination, and related claims.

On September 5, 2017, defendants filed a cross-complaint and on September 11, 2017, the operative first amended cross-complaint against plaintiff for (1) elder abuse, (2) financial elder abuse, (3) breach of fiduciary duty, and (4) intentional infliction of emotional distress, alleging incidents of mistreatment of Heller.

On October 31, 2017, plaintiff filed this opposed demurrer to the cross-complaint for insufficient facts, and unopposed motion to strike the elder abuse allegations. Plaintiff’s counsel filed a compliant meet and confer declaration. CCP § 430.41; Ramirez Decl. ¶¶ 3-5, Exh. A.

The Court considered the moving and opposition papers, and rules as follows.

The Court declines to consider defendants’ amended opposition because it was untimely served.

Failure to Tab Exhibits: The parties’ counsel should note: “Each exhibit must be separated by a hard 8 1/2 x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation.” CRC, rule 3.1110(f).

All parties are ORDERED to strictly comply with this rule or risk their exhibits being rejected, struck, and/or disregarded, and/or a monetary sanction. Fax filing does not obviate compliance because courtesy copies may be delivered.

Request for Judicial Notice: Plaintiff’s request for judicial notice of Heller’s RFA responses and documents filed in LASC Case No. SS026191 is GRANTED. Evid. Code § 452(d).

Demurrer Standard: A demurrer may be sustained where the complaint fails to state facts sufficient to constitute a cause of action. CCP § 430.10(e). Thus, concerning the legal sufficiency of a pleading, the sole issue on demurrer is whether the facts pleaded, if true, state a valid cause of action, i.e., if the complaint pleads facts that would entitle the plaintiff to relief. Garcetti v. Superior Court (1996) 49 Cal.App.4th 1533, 1547; Limandri v. Judkins (1997) 52 Cal.App.4th 326, 339. The question of plaintiff’s ability to prove the allegations of the complaint or the possible difficulty in making such proof does not concern the reviewing court. Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 47. The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 113 (stating, “[o]n demurrer, pleadings are read liberally and allegations contained therein are assumed to be true.”) Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. Vance v. Villa Park Mobilehome Estates (1995) 36 Cal.App.4th 698, 709. Leave to amend must be allowed where there is a reasonable possibility of successfully stating a cause of action. Schulz v. Neovi Data Corp. (2007) 152 Cal.App.4th 86, 92.

Standing: Defendants concede that Studden and Salomon lack standing and should be dismissed. The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

Capacity: OVERRULED

Plaintiff argues that Heller lacks capacity to sue without a conservator. In opposition, Heller argues that the November 3, 2017 order appointing Reenie Levine as her guardian ad litem satisfies plaintiff’s objection. Plaintiff does not dispute that Levine’s appointment moots his objection.

First COA: Elder Abuse: OVERRULED

Plaintiff argues that the claim is not a cognizable cause of action. To the extent there is a split of authority, the Court finds the authority recognizing such a cause of action is more persuasive. See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456; Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407 (describing the physical elder abuse elements); Delaney v. Baker (1999) 20 Cal.4th 23, 31-32 (describing the elder abuse enhanced remedies.)

Second COA: Financial Elder Abuse: OVERRULED.

Plaintiff argues that this cause of action is time-barred.

“‘In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows merely that the action may be barred.’ [Citations.] ‘The ultimate question for review is whether the complaint showed on its face that the action was barred by a statute of limitations, for only then may a general demurrer be sustained and a judgment of dismissal be entered thereon.’ [Citation.]” E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315-1316 (emphasis in original.)

“An action for damages pursuant to Sections 15657.5 and 15657.6 for financial abuse of an elder or dependent adult, as defined in Section 15610.30, shall be commenced within four years after the plaintiff discovers or, through the exercise of reasonable diligence, should have discovered, the facts constituting the financial abuse.” Welf. & Inst. Code § 15657.7.

To plead delayed discovery, it is well-established that a plaintiff must plead “facts showing that he [or she] was not negligent in failing to make the discovery sooner and that he [or she] had no actual or presumptive knowledge of facts sufficient to put him on inquiry.” Hobart v. Hobart Estate Co. (1945) 26 Cal.2d 412, 437; Johnson v. Ehrgott (1934) 1 Cal.2d 136, 137; Johnson v. Ehrgott (1934) 1 Cal.2d 136, 137. Additionally, the plaintiff has the burden of stating facts to show “(1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence. The burden is on the plaintiff to show diligence, and conclusory allegations will not withstand demurrer.” Czajkowski, supra, 208 Cal.App.4th at 175 (italics omitted.)

Here, plaintiff focuses on the allegation that in August 2013, Salomon discovered that Heller had been receiving checks every month since 2002. FACC ¶ 68. The FACC does not allege when it was discovered that Heller was cashing out these checks and giving the proceeds to plaintiff, when Heller admitted she was giving money to plaintiff, or when Heller, Salomon, or Studden made any other discoveries. FACC ¶¶ 67-72. Therefore, plaintiff has not met his burden of establishing that the timeliness defect clearly and affirmatively appear on the FACC’s face.

Third COA: Breach of Fiduciary Duty: OVERRULED

Plaintiff argues that the FACC alleges insufficient facts to plead a fiduciary relationship and pleads only an employment relationship.

The elements of a cause of action for breach of fiduciary duty are: (1) existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damages proximately caused by the breach. Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086.

Both sides look to the following case law for authority. “We review first the basic principles of fiduciary and confidential relations. The two terms are often said to be synonymous, but there are significant differences.[Citations] Both relationships give rise to a fiduciary duty, that is, a duty ‘to act with the utmost good faith for the benefit of the other party.’ [Citation] ‘ “Technically, a fiduciary relationship is a recognized legal relationship such as guardian and ward, trustee and beneficiary, principal and agent, or attorney and client … whereas a ‘confidential relationship’ may be founded on a moral, social, domestic, or merely personal relationship as well as on a legal relationship.” ’ [Citation.] A confidential relation may exist where there is no fiduciary relation. [Citation and footnote.] ‘Because confidential relations do not fall into well-defined categories of law and depend heavily on the circumstances, they are more difficult to identify than fiduciary relations.’ [Citation] The existence of a confidential relationship is a question of fact, and ‘ “the question is only whether the plaintiff actually reposed such trust and confidence in the other, and whether the other “accepted the relationship.’ ” ’ [Citation] A ‘relationship’ must exist over a period of time. [Citation.] [¶] We are mindful from the quoted authorities that the existence of a confidential relationship generating a fiduciary duty is a question of fact. Nonetheless, because of ‘[t]he vagueness of the common law definition of the confidential relation that gives rise to a fiduciary duty, and the range of the relationships that can potentially be characterized as fiduciary,’ the ‘essential elements’ have been distilled as follows:

‘ “1) The vulnerability of one party to the other which 2) results in the empowerment of the stronger party by the weaker which 3) empowerment has been solicited or accepted by the stronger party and 4) prevents the weaker party from effectively protecting itself.” ’ [Citation.]” Persson v. Smart Inventions, Inc. (2005) 125 Cal.App.4th 1141, 1160-1161 (citations and footnote omitted.)

Here, the FACC alleges that plaintiff was Heller’s “live-in companion” and performed numerous domestic tasks for her, including feeding her. FACC ¶¶ 13, 15, 23, 41. It further alleges that Heller was physically and mentally vulnerable because of her age, crippling scoliosis, and unspecified dementia. FACC ¶ 31. It also alleges that plaintiff manipulated Heller into retaining him. FACC ¶¶ 29, 34. These allegations establish a factual dispute over whether plaintiff was in a confidential relationship with Heller.

Fourth COA: Intentional Infliction of Emotional Distress: OVERRULED

Plaintiff argues that the FACC alleges insufficient facts to plead that plaintiff acted with the specific intent to cause emotional distress. The allegations that plaintiff told Heller, “I’m angry today and I’m not going to do anything for you,” was confrontational with Heller, took out his unhappiness on Heller, pitted family members against each other to somehow curry favor with Heller, and other similar allegations of intentional mistreatment and insinuation on Heller are sufficient. FACC ¶¶ 17, 26-27, 33.

Motion to Strike: DENIED

Plaintiff moves to strike the elder abuse allegations on the ground of res judicata.

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. CCP § 436(a). The court may also strike 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. CCP § 436(b).

“Claim preclusion ‘prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.’ [Citation.] Claim preclusion arises if a second suit involves: (1) the same cause of action (2) between the same parties (3) after a final judgment on the merits in the first suit. [Citation.] If claim preclusion is established, it operates to bar relitigation of the claim altogether. [¶] Issue preclusion prohibits the relitigation of issues argued and decided in a previous case, even if the second suit raises different causes of action. [Citation.] Under issue preclusion, the prior judgment conclusively resolves an issue actually litigated and determined in the first action. [Citation.] There is a limit to the reach of issue preclusion, however. In accordance with due process, it can be asserted only against a party to the first lawsuit, or one in privity with a party. [Citation.] [¶] Issue preclusion differs from claim preclusion in two ways. First, issue preclusion does not bar entire causes of action. Instead, it prevents relitigation of previously decided issues. Second, unlike claim preclusion, issue preclusion can be raised by one who was not a party or privy in the first suit. [Citation.] ‘Only the party against whom the doctrine is invoked must be bound by the prior proceeding. [Citations.]’ [Citation.] In summary, issue preclusion applies: (1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party. [Citation.]” DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824-825 (citations omitted, emphasis in original.)

Here, plaintiff relies on a TRO proceeding, where Heller and Studden’s request for a restraining order and preliminary injunction was denied. As plaintiff acknowledges, however, such “[a]n order may be issued … to restrain any person for the purpose of preventing a recurrence of abuse, if a declaration shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse of the petitioning elder or dependent adult.” Welf. & Inst. Code, § 15657.03(c); MOT 4:8-10. Thus, the standard for the TRO was evidentiary. The pleading standard requires no proof.

Additionally, the standard for a TRO and preliminary injunction is entirely different from the standard for proving claims in a civil lawsuit. “The trial court’s decision rests on the consideration of two interrelated factors: (1) the likelihood that [moving party] will prevail on the merits at trial and (2) the interim harm that [moving party] is likely to suffer if the injunction is denied, compared to the harm the [opposing party] is likely to suffer if the injunction issues.” Perez v. Hastings College of the Law (1996) 45 Cal.App.4th 453, 456 (citing Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 286). In a civil lawsuit, on the other hand, the plaintiff or cross-complainant must prove their claims by a preponderance of evidence to a trier of fact after having had an opportunity to conduct discovery into the claims and defenses. This is entirely different from an initial determination about whether the plaintiff or cross-complainant made an adequate pre-trial showing of a likelihood of ultimately prevailing and interim harm.

Therefore, plaintiff has not satisfied his initial burden of establishing that issue or claim preclusion applies: the issues and claims were different.

Conclusion: The demurrer is OVERRULED.

The motion to strike is DENIED.

Plaintiff is ORDERED to answer within 10 days or risk entry of default, and give notice.