Motion to Set Aside/Vacate Default
More than five months have passed since the Request for Entry of Default was rejected (ROA No. 127.) More than three months have passed, since Defendant’s Answer was accepted for filing. (ROA No. 149.)
While “Defendants engaged in multiple attempts to meet and confer with Plaintiff’s counsel to stipulate to set-aside the entry of default,” all such attempts pre-date rejection of the purported default filing. (¶2 of Baldwin Declaration.) Defense Counsel apparently ceased their efforts to communicate with Plaintiff (or to review the electronic record of this action), after December 4, 2025. Plaintiff’s Counsel, in turn, opted against communicating the rejection of the filing to Defendant.
Consequently, this motion remained on the Court’s already congested calendar, delaying the hearing of another, perhaps meritorious motion.
In light of the above failings, the Court orders Counsel for Plaintiff Ryne Osborne and Counsel for Defendant Zarate, Rudie Baldwin, to read and review the OCBA’s Civility Guidelines, available on the court website at: https://www.occourts.org/forms-filing/rules-court
55 Zinchefsky vs. Zinchefsky
25-01524036 Demurrer to Amended Complaint
The Demurrer brought by Defendant Steven Zinchefsky is SUSTAINED, with leave to amend, as to the First through Fourth Causes of Action. Additionally, Defendant’s Request for Judicial Notice (ROA No. 82) is GRANTED, pursuant to Evidence Code section 452, subdivision (d).
Initially, in demurring to Plaintiff’s claims, Defendant offers multiple facts, without offering citation to either the First Amended Complaint or judicially noticeable matters. (See Demurrer: 4:25-5:17.) Defense Counsel is reminded that demurrers consider only the facts alleged in the complaint and matters which may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Additionally, Counsel is reminded that the Court will not independently search the complaint or judicially noticeable material, to find support for factual statements made within a demurrer: “We are not required to search the record to ascertain whether it contains support for [Defendant’s] contentions.” (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545.)
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The portion of the Demurrer which seeks a plea in abatement is OVERRULED: To obtain a statutory plea in abatement absolute identity of the parties, causes of action and remedies is required. (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 788; See also People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4th 760, 770.)
Here, as Plaintiff’s Probate Petition seeks relief under Probate Code sections 17200, 850 and 859 (See Exhibit 2 of RJN) and, as the instant civil action asserts claims for Financial Elder Abuse, Conversion, Theft, Constructive Trust, Breach of Fiduciary Duty, Negligence, and Aiding and Abetting, no absolute identity is apparent.
While Defendant asserts “judgment in the probate case would preclude a determination of the Amended Complaint in the civil case” (Demurrer: 8:15-18 [ROA No. 84]), this statement is made without any further analysis or citation to authority. At most, this portion of the demurrer offers general citations to “Pet”
(which appears to refer to the Petition attached as Exhibit 2 to Defendant’s RJN) and the First Amended Complaint, documents which total over 250 pages.
The Court declines the invitation to independently examine the pleading papers for similarities.
“Every brief should contain a legal argument with citation to authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.” (People v. Stanley (1995) 10 Cal.4th 764, 793.)
Similarly, the portion of the Demurrer which asserts the rule of exclusive concurrent jurisdiction is OVERRULED, as the rule applies where “two superior courts have concurrent jurisdiction” and not where, as here, both actions are pending in the same court. (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 786-787.)
While “[t]he superior court is divided into departments, including the probate department, as a matter of convenience...the subject matter jurisdiction of the superior court is vested as a whole.” (Estate of Bowles (2008) 169 Cal.App.4th 684, 695.) As to both the civil and probate matters, jurisdiction is vested in the Orange County Superior Court and coordination between the proceedings is possible.
Nonetheless, the Demurrer to the First through Fourth Causes of Action is SUSTAINED, as Plaintiff has insufficiently pled standing.
“Standing is the threshold element required to state a cause of action and, thus, lack of standing may be raised by demurrer.” (Robinson v. Southern Counties Oil Co. (2020) 53 Cal.App.5th 476, 481.)
With respect to the First Cause of Action, “after the death of the elder or dependent adult, the right to commence or maintain an action shall pass to the personal representative of the decedent.” (Welf. & Inst. Code, § 15657.3, subd. (d)(1).) “If the personal representative refuses to commence or maintain an action” then “[a]n intestate heir whose interest is affected by the action,” “[t]he decedent’s successor in interests, as defined in Section 377.11 of the Code of Civil Procedure” or “[a]n interested person, as defined in Section 48 of the Probate Code,” “shall have standing to commence or maintain an action for elder abuse.” (Welf. & Inst. Code, § 15657.3, subd. (d)(1)(A)-(C) and subd. (d)(2).)
Per the Complaint, Janie L. Mulrain “is the Successor Trustee of the Zinchefsky Trust and the Personal Representative of Mary’s Estate.” (¶31 of FAC; See also ¶24, ¶42 of FAC [ROA No. 62].)
While Plaintiff asserts standing under Welfare & Institutions Code section 15657.3, subdivision (d)(2), the First Amended Complaint does not allege the personal representative refused to commence or maintain an action. Instead, the complaint concedes that Ms. Mulrain has filed a petition requesting instructions from the probate court. (¶24 and ¶77 of FAC.) At best, Plaintiff asserts Ms. Mulrain is handling the petition for instructions poorly, asserting she omitted “discussion of charges that occurred on Steven’s own banking cards” and “conducted no investigation or discovery beyond what Ryan provided to her.” (¶78 and ¶82 of FAC.)