Alicia M Martens vs. Roderick L. MacKenzie

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk

34-2023-00334325-CU-FR-GDS: Alicia M Martens vs. Roderick L. MacKenzie 07/08/2025 Hearing on Demurrer to Second Amended Complaint in Department 53

will be forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING:

Defendant Roderick L. MacKenzie’s (“MacKenzie”) demurrer to the second amended complaint (“SAC”) filed by Plaintiff, in pro per, Alicia M. Martens (“Plaintiff”) is ruled upon as follows.

This is an action for damages arising out of the creation and management of the Charles Valdes Revocable Living Trust (the “Trust”). Plaintiff is the Successor Trustee appointed on October 29, 2014. (SAC, p. 2:11-12.) The same day, Plaintiff learned that the Trust was devoid of funds. (Id., p. 2:13-14.) Plaintiff alleges MacKenzie and Defendant Daryl D. Martens prepared a promissory note not reflected in fraudulent books for the Trust and misappropriated funds due to the Trust by depositing them in an account other than the Trust account and provided fraudulent books related to the Trust. (SAC, pp. 2:16-25.)

Plaintiff alleges Defendant owed a fiduciary duty as a de facto trustee and breached that duty by failing to disclose material information and by misappropriating funds. (SAC, pp. 4:7-16.) The SAC further alleges Defendant Martens converted Plaintiff’s money by hiding a check due to Plaintiff for 6 years. (SAC, p. 5:10-16.) Plaintiff alleges Defendant conducted bank fraud by depleting funds from a bank account without authorization, and by forging checks in the name of Plaintiff. (SAC, pp. 7:9 – 8:4.)

Based on the foregoing, the SAC alleges causes of action for fraud, breach of fiduciary duty, conversion, and bank fraud. MacKenzie demurs to each cause of action on grounds it fails to state facts sufficient to constitute a cause of action. Plaintiff opposes.

As preliminary issues, Plaintiff argues MacKenzie failed to meet and confer and improperly amended the demurrer. MacKenzie’s counsel submitted a declaration indicating he attempted to contact Plaintiff by telephone. Further, the Court notes this is the second demurrer on the same grounds. The Court will therefore consider the demurrer at this time. Even if MacKenzie failed to properly meet and confer, such failure is not grounds for overruling the demurrer.

There is no indication in the record that MacKenzie improperly amended the demurrer. The demurrer and supporting papers were filed on December 24, 2024. The opposition acknowledges that the demurer was filed on that date. (Opposing Memo., p. 4:9-10.) Accordingly, it is apparent Plaintiff had notice of the grounds for demurrer. The Court will therefore consider the demurrer on its merits.

Legal Standard

The function of a demurrer is to test the sufficiency of the pleading it challenges by raising questions of law. (Salimi v. State Comp. Ins. Fund (1997) 54 Cal.App.4th 216, 219; Nordlinger

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00334325-CU-FR-GDS: Alicia M Martens vs. Roderick L. MacKenzie 07/08/2025 Hearing on Demurrer to Second Amended Complaint in Department 53

v. Lynch (1990) 225 Cal.App.3d 1259, 1271.) A demurrer “tests the pleadings alone and not the evidence or other extrinsic matters.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38-39; Bagatti v. Dept. of Rehabilitation (2002) 97 Cal.App.4th 344, 352.)

For the purpose of determining the effect of a complaint, its allegations are liberally construed, with a view toward substantial justice. (Code Civ. Proc. § 452; Amarel v. Connell (1988) 202 Cal.App.3d 137, 140-141; Quelimane Co., supra, 19 Cal.4th at 43, fn. 7.) In this respect, the Court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law, and considers matters which may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Poseidon Development, Inc. v.

Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-1112.) The Court treats as true not only the complaint’s material factual allegations, but also facts that may be implied or inferred from those expressly alleged. (Amarel, supra, 202 Cal.App.3d at 141.) “A court will not consider facts which have not been alleged in the complaint unless they may be reasonably inferred from the matters which have been pled or are proper subjects of judicial notice.” (Hall v. Great Western Bank (1991) 231 Cal.App.3d 713, 722, fn. 7.)

The Court is to give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Blank, supra, 39 Cal.3d at 318.) A demurrer may be sustained only if the complaint lacks any sufficient allegations to entitle the plaintiff to relief. (Financial Corp. of America v. Wilburn (1987) 189 Cal. App. 3d 764, 778.) “Plaintiff need only plead facts showing that he may be entitled to some relief, we are not concerned with plaintiff's possible inability or difficulty in proving the allegations of the complaint.” (Highlanders, Inc. v.

Olsan (1978) 77 Cal.App.3d 690, 696-697.)

Nonetheless, “[t]he plaintiff has the burden of showing that the facts pleaded are sufficient to establish every element of the cause of action.” (Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1031; see Sui v. Price (2011) 196 Cal.App.4th 933, 938.) “Allegations must be factual and specific, not vague or conclusionary.” (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43–44, internal citations omitted.)

Analysis

MacKenzie contends that Plaintiff’s claims are barred by the statute of limitations for fraud and breach of contract. (Demurrer at 2:25-3:9 [citing Code Civ. Proc. §§ 338(c)(1), 338(d), and 343].)

“The defense of statute of limitations may be asserted by general demurrer if the complaint shows on its face that the statute bars the action.” (E-Fab, Inc. v. Accountants, Inc. Serv. (2007) 153 Cal.App.4th 1308, 1315-1316.) “An action for relief on the ground of fraud or mistake” must be brought within three years of accrual. (Code Civ. Proc., § 338, subd. (d).) “The cause of

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00334325-CU-FR-GDS: Alicia M Martens vs. Roderick L. MacKenzie 07/08/2025 Hearing on Demurrer to Second Amended Complaint in Department 53

action in that case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.” (Code Civ. Proc., §338, subd. (d).) “[I]f an action is brought more than three years after commission of the fraud, plaintiff has the burden of pleading and proving that he did not make the discovery until within three years prior to the filing of his complaint.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1472; see also Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1192 [“The doctrine of fraudulent concealment tolls the statute of limitations where a defendant, through deceptive conduct, has caused a claim to grow stale”].)

The SAC alleges Plaintiff became successor Trustee on October 29, 2014, that misrepresentations were made around that time, and that there were deposits made to accounts with MacKenzie’s name in April 2016. MacKenzie argues that exhibits 25-26 of the SAC reveal Plaintiff had notice of transfers of $300,000 no later than May 18, 2015. As the complaint was not filed until February 6, 2023, MacKenzie argues Plaintiff’s claims were filed well after the statute of limitations had expired.

In opposition, Plaintiff invokes the delayed discovery rule. Plaintiff argues she exercised reasonable diligence in investigating her claims and did not become aware of MacKenzie’s involvement until June 15, 2021.

The “plaintiff has the burden of pleading and proving that he did not make the discovery until within three years prior to the filing of his complaint.” (Cansino, supra, 224 Cal.App.4th at 1472.)

Here, Plaintiff alleges she became aware of her claims on June 15, 2021 when an expert witness discovered the cashier’s check Defendant Martens’ hid in a picture frame of his stepdaughter for six years. (SAC, p. 13:11-15.) However, the claims against MacKenzie are not based on Defendant Martens’ action in converting a cashier’s check for six years. Rather, the SAC alleges MacKenzie provided fraudulent books to Plaintiff when she became successor trustee in 2014, made deposits to his own accounts in April 2016, and depleted money from bank accounts. (SAC, pp. 2:18-22, 7:9-24.)

Based on Plaintiff’s own description of the various exhibits attached to the SAC, other than Defendant Marten’s concealment of the cashier’s check, the last wrongful act occurred on May 10, 2016. (SAC, Table of Contents by Date / Event, pp. 6-7.) Plaintiff fails to allege facts explaining why Plaintiff could not have discovered MacKenzie’s alleged actions before the discovery of the concealed cashier’s check. Plaintiff has therefore failed to allege sufficient facts to support application of the discovery rule.

Disposition

MacKenzie’s demurrer is SUSTAINED as to all causes of action asserted against MacKenzie in the SAC. Although this is the second time a demurrer has been sustained on these grounds, the Court will nonetheless grant leave to amend.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00334325-CU-FR-GDS: Alicia M Martens vs. Roderick L. MacKenzie 07/08/2025 Hearing on Demurrer to Second Amended Complaint in Department 53

Plaintiff may file and served a second amended complaint no later than July 28, 2025.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC, Rule 3.1312.)