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 11/07/2024 Hearing on Demurrer in Department 53

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

TENTATIVE RULING:

Defendant Roderick L. MacKenzie’s (“Defendant”) demurrer to Plaintiff, in pro per, Alicia M. Martens (“Martens”) first amended complaint (“1AC”) is ruled upon as follows.

The amended notice of motion includes the incorrect address for the hearing. The correct address for Department 53 of the Sacramento Superior Court is 813 6th Street, Sacramento, California 95814.

Background

This action arises out of the creation and management of the Charles Valdes’s (“Decedent”) estate plan. Plaintiff alleges that Defendant is the “creator of Charles Valdes Revocable Living Trust, Last Will and Testament, Durable Power of Attorney for Health Care, and Springing Power of Attorney.” (1AC at FR-2.a.) She further alleges that Defendant “had knowledge of Charles Valdes[‘s] Assets and bank accounts” but failed to “divulge any of this to Trustee or turn over to [the] Trust” and instead “diverted all tthe [sic] money from the bank to himself.” (1AC at FR-2.a.)

Plaintiff further alleges Defendant “alter[ed] Valdes’s Will to not include [a] Chase bank account.” (1AC at FR-3.a.) The 1AC avers that Defendant made various promises and misrepresentations to Plaintiff without any intent to perform. (1AC at FR-4.a.) Plaintiff also brings a cause of action for breach of contract, though the Court cannot ascertain the exact parties to or the nature of the contract alleged from the 1AC. (See 1AC at p. 7.) Plaintiff filed the initial complaint on February 6, 2023 and the 1AC on April 28, 2023.

Defendant now demurs to the causes of action for fraud and breach of contract against him based on the statute of limitations. Plaintiff opposes.

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 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,

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00334325-CU-FR-GDS: Alicia M Martens vs. Roderick L. MacKenzie 11/07/2024 Hearing on Demurrer in Department 53

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.)

Discussion

Defendant contends that Plaintiff’s claims are barred by the statute of limitations for fraud and breach of contract. (Demurrer at 1:25-2:4 [citing Code Civ. Proc. §§338, subd, (d) and 337, subd. (a)].) In opposition, Plaintiff invokes the delayed discovery rule of Code of Civil Procedure section 338, subdivision (d). She argues that she did not discovery any fraud until she reviewed the documents on June 15, 2021.

“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 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

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00334325-CU-FR-GDS: Alicia M Martens vs. Roderick L. MacKenzie 11/07/2024 Hearing on Demurrer in Department 53

concealment tolls the statute of limitations where a defendant, through deceptive conduct, has caused a claim to grow stale”].)

Here, the face of the 1AC indicates that the statute of limitations has run on Plaintiff’s fraud claims. As noted earlier, Plaintiff’s fraud claims involve mainly the Trust. The Trust “only lasted from April till June 2015.” (1AC at FR-5.) Pursuant to Code of Civil Procedure section 338, statute of limitations expired in June 2018. While Plaintiff makes various arguments related to delayed discovery in opposition to the instant demurrer, none of these allegations appear in the 1AC. 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.) Plaintiff has not done so.

Accordingly, Defendant’s demurrer to the first cause of action for fraud is SUSTAINED.

Defendant’s demurrer to the third cause of action for breach of contract is also SUSTAINED. The 1AC alleges that Plaintiff entered into a written agreement with herself as sole trustee of the Trust. (1AC at BC-1.) To the extent that her allegations include a written agreement between her and Defendant, she alleges that Defendant breached the agreement on October 29, 2014 by setting up a remote post office box to intercept mail intended for her. (1AC at BC-2.) On the face of the 1AC, Plaintiff’s cause of action for breach of contract expired on October 28, 2018. (See Code Civ. Proc. §337, subd. (a).)

The Court notes that Plaintiff filed several documents after Defendant filed his reply. The Court disregards these filings as Plaintiff failed to obtain leave of Court to file them. In any event, they are immaterial to the disposition of the instant demurrer.

Disposition

Defendant’s demurrer to the first and third causes of action are SUSTAINED. However, leave to amend is GRANTED as this is the first challenge to the complaint. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747 [“If the plaintiff has not had an opportunity to amend the complaint in response to the demurrer, leave to amend is liberally allowed as a matter of fairness, unless the complaint shows on its face that it is incapable of amendment”].)

Plaintiff may file and served a second amended complaint no later than November 27, 2024.

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