Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. CGC 05-444069
STEIN, Acting P. J.
Plaintiff Lanny Jay appeals from a judgment dismissing his third amended complaint after the trial court sustained demurrers to each of plaintiff’s claims without leave to amend.
We affirm.
As this case was disposed of on demurrer, no fact, whether alleged in the complaint or asserted by plaintiff in opposition to the demurrers, has been established. We do not here adopt plaintiff’s assertions as accurately representing the events leading up to and following his brother’s death, and repeat them only to provide some context for the allegations of plaintiff’s complaint and amended complaints
Sometime in October 2004, plaintiff’s brother, Barry Hershkoff (decedent), died of an apparent heart attack. Plaintiff petitioned for probate of a July 20, 2002 will executed in his favor by decedent under which decedent apparently left all or most of his estate to plaintiff. In January 2005, Sue Kubly, one of the defendants in this action, filed a petition to vacate an order admitting the 2002 will to probate, asserting she was a creditor of the estate and had not received notice of the probate proceedings, and that she also was the beneficiary of a 2000 will executed by decedent. Plaintiff later told the court that after his brother’s death, he went to his brother’s apartment, and “saw things that shouldn’t have been there.” He considered statements Kubly had made, and “finally put it together thanks to a will contest that I was dealing with a murder.”
Among the matters considered by plaintiff in forming this opinion were the events surrounding decedent’s trip to the hospital in July 2002. Decedent’s mother had not heard from decedent and was concerned about him. She contacted plaintiff, who, in turn, contacted Kubly. On the morning of July 8, 2002, Kubly called plaintiff, telling him she was at decedent’s condominium, waiting for a police officer and a locksmith to gain entry. She called again, telling plaintiff the police officer had learned decedent had been taken to the hospital on July 3, 2002. According to plaintiff, Kubly later placed a call to emergency services and to a different locksmith, making statements that caused the locksmith to let her into the apartment and provide her with a key. In October 2002, Kubly wrote a check to what appears to be a locksmith.
Decedent apparently recovered sufficiently to return home, but died two years later of a heart attack due to hypertensive and atherosclerotic coronary disease. An analysis of his blood detected the presence of methamphetamine. Shortly after the death, Kubly wrote to decedent’s mother, informing her decedent recently had been in good spirits. Kubly mentioned she had had lunch with decedent a few days earlier. He told her his new medication had really helped him and he was not feeling down at all. From these and other matters, plaintiff formed the opinion Kubly had entered decedent’s apartment in July 2002 in order to find and destroy any wills that might affect her ability to benefit under the 2000 will. He believed Kubly later supplied decedent with methamphetamine, telling him it was medication that would help his stomach complaints, but knowing and intending it would cause him to suffer a heart attack. Plaintiff believed Kubly entered decedent’s apartment again in September or October 2002, this time with defendant Susan Pratt, again with the intent of finding and destroying any wills that might compete with the 2000 will.
On August 16, 2005, plaintiff, as the executor of decedent’s will, filed suit against Kubly, Pratt, and GMAC Real Estate, doing business as Pacific Union Real Estate and Pacific Union Investment Brokerage (GMAC). Plaintiff, on September 8, 2005, and before receiving any responsive pleadings, filed an amended complaint. He made claims of trespass against Kubly and Pratt, and a claim of abuse of a dependent adult against Kubly for her alleged conduct in supplying decedent with methamphetamine. He alleged Kubly was employed by GMAC, claiming GMAC had failed to train and supervise Kubly and had ratified her “burglar(ies)” and “murder” of decedent. Plaintiff further claimed Kubly’s wrongful acts were done in the course and scope of her employment, and that GMAC was responsible for Kubly’s conduct on a theory of respondeat superior. Plaintiff also made a claim of unjust enrichment and fraud against Kubly, alleging Kubly had become indebted to a locksmith in July 2002, when she entered decedent’s condominium, that she later misrepresented to decedent’s attorney-in-fact (i.e., plaintiff) she had hired the locksmith in October 2002 because a trusted cleaning person had broken the unit’s lock and that the estate had paid the locksmith’s bill. The court sustained demurrers to all plaintiff’s claims, but granted him leave to amend.
On December 12, 2005, plaintiff filed a second amended complaint. He again made claims of trespass against Kubly and Pratt. He claimed physical abuse of a dependent adult, alleging Kubly had supplied decedent with methamphetamine to trigger a heart attack, asserting her conduct violated Welfare and Institutions Code section 15610.63. He made a claim against Kubly for premeditated murder. Plaintiff made three claims against GMAC, seeking to hold GMAC responsible for Kubly’s actions. Plaintiff also again made a claim against Kubly for unjust enrichment through fraud, based on the locksmith’s bill. The court sustained GMAC’s demurrer to the fifth, sixth and seventh causes of action in plaintiff’s second amended complaint without leave to amend. It sustained Kubly and Pratt’s demurrers to the first, second and third causes of action with leave to amend, and to the fourth cause of action, murder, without leave to amend, but without prejudice to plaintiff to add a cause of action for wrongful death.
Plaintiff has not raised any issues relating to court’s decision to sustain demurrers to the claims alleged against GMAC, and we consider them no further.
On March 7, 2006, plaintiff filed his third amended complaint stating three claims. The first, stated against Kubly, was for a trespass alleged to have occurred on July 8, 2002. The second, stated against Kubly and Pratt, was for a trespass alleged to have occurred in October 2002. The third, alleged against Kubly, was for abuse of a dependent adult. Pratt and Kubly demurred to the third amended complaint, and this time, the court sustained the demurrer without leave to amend.
Discussion
I.
Legal Principles And Standard Of Review
A demurrer attacks the sufficiency of the factual allegations in a complaint. In reviewing the sufficiency of a complaint against a general demurrer, the appellate court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law. (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 42-43 (Rakestraw).) A demurrer is proper where the complaint fails to state a cause of action, or where it discloses a defense that would bar recovery. (Johnson v. Superior Court (25 Cal.App.4th 1564, 1567, disapproved on another point in Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 724, fn. 4.) We review an order sustaining a demurrer de novo. (Rakestraw, supra, at p. 43.) When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment. If it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The plaintiff bears the burden of proving there is a reasonable possibility that the defect in the pleadings can be cured by amendment. (Ibid.; Rakestraw, supra, at p. 43.) In addition, where demurrers were granted as a result of defects in the complaint, and the plaintiff, provided with the opportunity to correct those defects, fails to do so, it is proper to deny any further leave to amend. (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1091; and see also Goodman v. Kennedy (1976) 18 Cal.3d 335, 349-350 [dismissal affirmed when plaintiffs, after several attempts to amend complaint, failed to cure defects and made no offer to establish missing elements of cause of action].)
Our review of the pleadings is limited by several additional principles. A complaint should set forth a statement of the facts constituting the cause of action, in ordinary and concise language. (Code Civ. Proc., § 425.10, subd. (a)(1).) “This fact-pleading requirement obligates the plaintiff to allege ultimate facts that ‘as a whole apprise[] the adversary of the factual basis of the claim. [Citations.]’ [Citations.] When a complaint complies with the fact-pleading requirement of section 425.10, subdivision (a)(1), ‘ “ ‘[t]he existence of a legal right in an abstract form is never alleged by the plaintiff; but, instead thereof, the facts from which that right arises are set forth, and the right itself is inferred therefrom. The cause of action, as it appears in the complaint when properly pleaded, will therefore always be the facts from which the plaintiff’s primary right and the defendant’s corresponding primary duty have arisen, together with the facts which constitute the defendant’s delict or act of wrong.’ ” [Citation.]’ [Citation.]” (Davaloo v. State Farm Ins. Co. (2005) 135 Cal.App.4th 409, 415.) In addition, allegations of evidentiary matter are irrelevant and subject to a motion to strike. (See Green v. Palmer (1860) 15 Cal. 411, 414.) Averments of legal conclusions ordinarily are deemed to be surplusage and will be disregarded in considering the sufficiency of a pleading. (Krug v. Meeham (1952) 109 Cal.App.2d 274, 277.)
II.
Application to Present Case
First Cause of Action
The first cause of action in the third amended complaint is for trespass, stated against Kubly. Stripped of the evidentiary allegations, including allegations of Kubly’s motives, and of conclusions of law, the complaint alleges that on July 8, 2002, Kubly entered decedent’s apartment, purportedly to determine if he was dead or dying when she knew he was neither dead nor dying. Plaintiff, believing Kubly had engaged a locksmith for some proper purpose, and without knowing or understanding Kubly had made an unauthorized entry, promised to reimburse her for the expense of the locksmith she had engaged to open decedent’s door. On October 15, 2002, Kubly sent plaintiff the locksmith’s bill for $113. Plaintiff sent the locksmith a check, but the locksmith never cashed it. Plaintiff alleged he was damaged by Kubly’s actions “and is entitled to nominal damages . . . in the sum of thirty-seven cents,” representing the cost of mailing the check to the locksmith. In order to avoid the bar of the three-year statute of limitations for trespass (Code Civ. Proc., § 338 ), the complaint further alleged Kubly had been outside of the state of California for various periods of time between July 2002, when the cause of action accrued and August 2005, when the complaint was filed.
As relevant, Code of Civil Procedure section 338 provides, “Within three years: [¶] . . . [¶] (b) An action for trespass upon or injury to real property.”
Code of Civil Procedure section 351 tolls the statutory period for bringing suit during any time, after the cause of action has accrued, that the defendant is absent from California. If the defendant has been absent for several periods of time, those periods are aggregated. The significant factor is that the defendant was absent from the state and could not be served with a complaint and summons for the purpose of conferring upon the court jurisdiction to enter a personal judgment against him or her. (Schneider v. Schneider (1947) 82 Cal.App.2d 860, 862.) Plaintiff alleged Kubly had been outside of the state of California for the periods from August 24, 2002, until August 30, 2002; from November 11, 2002, to an unknown date; from March 9, 2003, until an unknown date; from March 30, 2004, until an unknown date; from September 1, 2004, until September 20, 2004; and from December 5, 2004, to December 25, 2004. Plaintiff alleged, further, Kubly “spent more than two months outside of the State of California between her 7/8/2002 trespass and 8/16/2005, the date on which this action was filed.” Plaintiff’s allegation of more than two months’ absence is a conclusion that is of no value unless it is based on allegations of fact. The factual allegations are that Kubly was absent for a six-day period in August 2002, a 19-day period in September 2004, and a 20-day period in December 2004. In addition, the allegations sufficiently identify the days of November 11, 2002, March 9, 2003, and March 30, 2004, as dates when Kubly was out of state. Plaintiff accordingly alleged absences of 48 days. August 16, 2005, is less than three years and 48 days after July 8, 2002. The complaint sufficiently pleaded around the applicable statute of limitations.
Code of Civil Procedure section 351 provides, “If, when the cause of action accrues against a person, he is out of the state, the action may be commenced within the term herein limited, after his return to the state, and if, after the cause of action accrues, he departs from the state, the time of his absence is not part of the time limited for the commencement of the action.” Code of Civil Procedure section 351 has been found to be unconstitutional in that it burdens interstate commerce with respect to residents who travel in the course of interstate commerce. (Filet Menu, Inc. v. Cheng (1999) 71 Cal.App.4th 1276, 1283.) However, “[b]ecause the implications of Code of Civil Procedure section 351 for such travel apply equally to residents engaged in interstate commerce and to residents not so occupied, tolling statutory periods for the duration of out-of-state travel unrelated to interstate commerce does not violate the commerce clause. [Citation.]” (Ibid.)
The complaint, however, suffers from other infirmities. Trespass is an unlawful interference with possession of property. (Elton v. Anheuser-Busch Beverage Group, Inc. (1996) 50 Cal.App.4th 1301, 1306; Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1406.) The complaint essentially alleges plaintiff did not provide Kubly with authority to enter decedent’s apartment on the afternoon of July 8, 2002, but there is no allegation that plaintiff had any possessory interest in the apartment or that he had the authority to authorize or deny access to it. To the contrary, the apartment belonged to decedent, who therefore had the power to provide or deny authority to enter and the power to complain or not to complain about an unauthorized entry. There are no allegations from which it might be inferred or concluded decedent had any objection to Kubly’s alleged entry. The complaint did allege the entry was “without the consent or authority and against the will of decedent,” but it also asserted plaintiff became aware of Kubly’s entry only after July 10, 2005, when he sent the check to the locksmith. The factual allegations therefore establish plaintiff learned of the alleged entry only after his brother’s death, and therefore had no way of knowing whether decedent would have objected, or did object, to the entry.
The complaint also fails to allege any damage resulting from the alleged trespass. Plaintiff sought nominal damages of the cost of mailing a check to the locksmith. Even if, as plaintiff insists, he sent a check to the locksmith because Kubly misrepresented she had engaged the locksmith on his authority, his claim rests on the alleged misrepresentation, not on the alleged entry. Finally, and most significantly, the complaint fails to allege any actionable harm to decedent resulting from the alleged trespass. That plaintiff spent 37 cents is irrelevant in the absence of some allegation plaintiff had a possessory interest in the residence. Plaintiff’s expenditure of 37 cents, therefore, is not actionable on a theory of trespass. Plaintiff’s claim that Kubly’s motive in committing the alleged trespass was to find and destroy wills does not establish any harm in the absence of an allegation that a will was found and destroyed and/or that the destruction resulted in actual harm to decedent. It is true that even if it cannot be established a trespass resulted in actual harm, a landowner may be awarded nominal damages (Staples v. Hoefke, supra,189 Cal.App.3d at p. 1406; Allen v. McMillion (1978) 82 Cal.App.3d 211, 219), but it goes too far to hold a landowner’s representative is entitled to nominal damages where there is no suggestion the landowner himself suffered any harm, or some showing the landowner had an actual objection to the entry.
Second Cause of Action
Plaintiff’s second cause of action, for trespass against Kubly and Pratt, suffers from the same infirmities as the first cause of action, but has additional problems. There are no allegations Pratt was out of state during any relevant time periods. The allegations therefore establish the action was not brought against Pratt within the statutory time period. In addition, the only harm plaintiff alleged was the same 37-cent expenditure, but, according to other allegations, that expenditure resulted from the alleged entry in July 2002, not the later alleged entry the following September or October.
Third Cause of Action
Plaintiff’s third cause of action, alleged against Kubly, is for physical abuse of a dependent adult. He claims Kubly’s conduct violated Health and Safety Code section 11352 and Penal Code sections 187, 189 and 190.2. These sections define crimes and provide no basis for a civil suit. Plaintiff also alleged Kubly’s conduct violated Welfare and Institutions Code section 15610.63, which defines physical abuse for purposes of the Elder Abuse and Dependent Adult Civil Protection Act, Welfare and Institutions Code section 15300 et. seq. Welfare and Institutions Code section 15657 provides a causes of action for survivor, such as plaintiff, to recover damages for the decedent’s predeath pain or suffering “[w]here it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63 . . . and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse.” (And see Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1264-1265.)
As the trial court pointed out to plaintiff in sustaining demurrers to the second amended complaint, there is no civil action for murder; plaintiff’s civil claim necessarily would have to be a claim for wrongful death. Plaintiff has made no such claim.
Welfare and Institutions Code section 15610.63 defines “physical abuse” as including assault and battery (Welf. & Inst. Code, § 15610.63, subds. (a) & (b)), and “[u]se of a physical or chemical restraint or pyschotropic medication” for any purpose not authorized by a physician or surgeon (Welf. & Inst. Code, § 15610.63, subd. (f)(3)). As we conclude the complaint’s allegations do not establish decedent’s dependency, we need not and do not determine whether the allegation that Kubly supplied decedent with methamphetamine might fall within these provisions.
As relevant here, Welfare and Institutions Code section 15610.23, subdivision (a) defines “dependent adult,” as “any person between the ages of 18 and 64 years who resides in this state and who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities, or whose physical or mental abilities have diminished because of age.” The statutory definition is fairly broad, but must be read in the light of the relevant legislative history, and of reason. In Delaney v. Baker (1999) 20 Cal.4th 23, the Supreme Court reviewed the legislative history of section 15657, concluding one of its major objectives “was the protection of residents of nursing homes and other health care facilities.” (Id. at p. 37.) While the definition of “dependent adult” is not limited to persons living in such facilities, it reasonably should extend only to persons whose disabilities and needs are comparable to persons who are compelled to live in nursing homes and other health care facilities. In Estate of Shinkle (2002) 97 Cal.App.4th 990 (disapproved on other grounds in Bernard v. Foley (2006) 39 Cal.4th 794, 816, fn. 14), for example, the adult in question was a dependent adult not simply because she was 77 years old and no longer could walk, but because “[s]he needed assistance with most activities of daily living, including cooking, bathing and toileting. She no longer did her own banking and needed help paying her bills.” (Id. at p. 1005.)
Plaintiff alleged decedent had been 56 years of age, was blind in one eye and partially blind in the other eye, suffered from posttraumatic stress disorder, was disabled due to his medical and psychiatric problems, suffered from neurological “sequelae” from a rifle wound to the head, was facially disfigured and had been rated as 100 percent disabled by the United States Department of Veterans Affairs. At most these allegations support a conclusion that decedent had some physical and mental disabilities. They do not show that decedent, who admittedly lived independently, nonetheless suffered from restrictions in the ability to carry out normal activities or protect his rights comparable to those suffered by the decedent in Estate of Shinkle, supra, 97 Cal.App.4th 990.
Plaintiff also alleged decedent routinely “ ‘lent’ Ann Dougherty money when she spent time with him, and in like manner . . . routinely assured Kubly, when she spent time with him, that she (Kubly) would inherit his condominium.” These allegations do not establish decedent’s dependency—particularly in light of the fact decedent did not leave his condominium to Kubly. The same is true for the allegations Kubly took decedent shopping and to appointments, helped him with tasks, ate with him at a restaurant once a month, or allegedly provided him with sexual gratification. Although the allegations suggest Kubly provided friendship and aid to decedent, and helped him with matters made more difficult for him because of his vision problems, they do not amount to a showing of adult dependency and therefore do not support a claim for abuse of a dependent adult.
It is unnecessary to consider Kubly’s additional argument that the allegations of supplying methamphetamine to decedent do not establish “physical abuse” as defined by Welfare and Intuitions Code section 15610.63, because he was not a “dependent adult.”
Conclusion
The complaint failed to allege facts entitling plaintiff to relief on any of his claims. Plaintiff had been provided with several opportunities to correct the defects in his pleadings, but was unable to do so. He made no showing in the trial court, and has made no showing here, from which it might be concluded he would be able to cure those defects if given yet another opportunity to amend.
The judgment of dismissal is affirmed.
We concur: SWAGER, J., MARGULIES, J.