Maxine Littlejohn (Plaintiff) purchased John and Kimberly Stanier’s (Staniers) residence. Plaintiff and the Staniers were represented in the transaction by real estate broker Linda Wilson of Wilson & Company, Inc. Plaintiff now brings an action against the Staniers, Philip King of K&K construction, Linda Wilson and Wilson & Company, Inc. for alleged failure to disclose certain claimed defects with the property. 

 

Plaintiff’s First Amended Complaint (FAC) alleges causes of action for breach of fiduciary duty, fraud, conspiracy, breach of contract and rescission. Linda Wilson and Wilson & Company, Inc. (hereafter Defendants) now move to strike certain remedies alleged in the FAC. Plaintiff opposes the motion to strike.

 

Additionally, Defendants filed a cross-complaint for equitable indemnity, contribution, express indemnity and declaratory relief. Defendants named Plaintiff’s husband Charles Littlejohn (Littlejohn) as a cross-defendant to the cross-complaint. Littlejohn now demurs to the cross-complaint. Defendants oppose the demurrer.

 

In addition to compensatory damages, Plaintiff’s first cause of action for breach of fiduciary duty and constructive fraud prays for an order denying Defendants any setoffs, for a constructive trust to be imposed before trial on Defendants’ personal and real property and for an order adjudicating that Defendants have the burden of proof. Defendants move to strike these prayers from the FAC.

Defendants move to strike Plaintiff’s prayer for an order denying any setoffs. In opposition, Plaintiff contends they are justified in seeking an order that there be no setoffs because their complaint alleges only intentional torts against Defendants such that Defendants are not entitled to any setoff, contribution or indemnification as an intentional tortfeasor. In other words, pursuant to CCP §875 there is no right of contribution in favor of a tortfeasor that is guilty of an intentional tort. (Allen v. Sundean (1982) 137 Cal.App.3d 216, 226-227) 

 

Defendants contend that Plaintiff’s first cause of action includes claims for constructive fraud which is not always considered to be an intentional tort. “[A]s a general principle constructive fraud comprises any act, omission or concealment involving a breach of legal or equitable duty, trust or confidence which results in damage to another even though the conduct is not otherwise fraudulent.” (Salahutdin v. Valley of California, Inc. (1994) 24 Cal.App.4^th 555, 563; quoting 2 Miller & Starr, supra, Agency, § 3:20 at pp. 120-121) “[t]here is no clear line establishing when a fiduciary's breach of the duty of care will be merely negligent and when it may be characterized as constructive fraud.” (Id at 563)

 

There does not appear to be any necessity for Plaintiffs’ to pray for an order to deny Defendants any set offs. First, equitable contribution and indemnity among alleged joint tortfeasors are properly decided through cross-complaints. Second, those issues are best reserved for litigation following an actual determination of liability of all of the defendants and Plaintiff. Thus, including the request in the FAC’s prayer is unnecessary.

 

            Constructive Trust 

 

Plaintiff prays for a constructive trust on the theory that Defendants received a commission of $100,000 based upon a breach of their fiduciary duties and multiple frauds. In moving to strike the request for a constructive trust, Defendants contend there is no identifiable “res” to support the imposition of a constructive trust and that a constructive trust is only a remedy that comes into existence after litigation. 

 

A constructive trust, however, is an equitable remedy, not a substantive claim for relief. “A constructive trust is an involuntary equitable trust created by operation of law as a remedy to compel the transfer of property from the person wrongfully holding it to the rightful owner. [Citations.] The essence of the theory of constructive trust is to prevent unjust enrichment and to prevent a person from taking advantage of his or her own wrongdoing. [Citations.]” (Communist Party v. 522 Valencia, Inc. (1995) 35 Cal.App.4th 980, 990; Campbell v. Superior Court (2005) 132 Cal.App.4th 904, 920.) Before a constructive trust can be imposed, the plaintiff must prove that the defendant's acquisition of the property was wrongful. (PCO, Inc. v. Christensen, Miller, et al. (2007) 150 Cal.App.4^th 384, 398)

 

Plaintiff argues that money can be considered “res” for purposes of a constructive trust. “[a] constructive trust requires ‘money or property identified as belonging in good conscience to the plaintiff [which can] clearly be traced to particular funds or property in the defendant's possession.’” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4^th 1134, 1150 citing Great-West Life & Annuity Insurance Co. v. Knudson (2002) 534 U.S. 204, 213) However, in reply, Defendants correctly point out that imposition of a pre-trial constructive trust is inappropriate. In the case at hand, Plaintiff’s FAC requests a constructive trust be imposed before trial. However, as referenced above a constructive trust is a remedy that can only be imposed after there has been a determination that a defendant’s conduct was wrongful. Consequently, Plaintiff’s prayer for a pre-trail constructive trust is improper.

 

            Burden of Proof

Finally, Plaintiff’s first cause of action requests an order adjudicating that Defendants have the burden of proof at the time of trial and for purposes of summary judgment. Plaintiff contends that because Defendants were her fiduciary, the burden shifts to Defendants to establish they acted in good faith towards Plaintiff. (Jorgensen v. Beach N Bay Realty, Inc. (1981) 125 Cal.App.3d 155, 162)

 

Defendants argue the language is too broad because it excludes the fact that Plaintiff still maintains the burden of proof to establish that a fiduciary relationship exists.

 

Which party has the actual burden of proof on a particular cause of action or defense is an issue to be decided at the time of the pending motion or trial. There does not appear to be any purpose in asserting a prayer in the FAC requesting that the Court make a broad determination that Defendants have the burden of proof.

 

            Conclusion

 

As stated above, Defendants’ cross-complaint names Plaintiff’s husband Littlejohn as a cross-defendant and alleges causes of action for equitable indemnity, contribution and declaratory relief on the theory that Littlejohn is a joint tortfeasor.

 

Littlejohn demurs on the grounds all of Defendants causes of action are barred because there is no contribution or set offs among intentional tortfeasors. Littlejohn contends because Plaintiff’s FAC only includes claims for intentional torts, Defendants are not entitled to any contribution from him. In opposition, Defendants raise the same arguments as they raised above in the motion to strike. Defendants argue Plaintiff’s first cause of action includes claims for constructive trust which are not always intentional. (Salahutdin v. Valley of California, Inc. (1994) 24 Cal.App.4^th 555, 563) As such, Defendants contend they could be held liable for negligence on a constructive fraud theory which would entitle them to equitable contribution and indemnity.

 

Littlejohn also demurs on the grounds that because he is Plaintiff’s husband Defendants cannot seek restitution from him pursuant to the holding in Lauriedale Associates v. Wilson (1992) 7 Cal.App.4^th 1439. In Lauriedale a condominium owners association brought an action against its former board members. The defendants in turn filed a cross-complained for equitable indemnity against the individual unit owners. The appellate court affirmed the trial court’s sustaining of a unit owner’s demurrer to the cross-complaint. In addressing the defendants’ theories of equitable indemnity the Lauriedale court held:

 

Thus clarified, the issue in this case is whether a party which has breached its fiduciary duties may bring an action for restitution against the persons harmed by that breach. We conclude the answer is “no.” (Lauriedale Associates v. Wilson (1992) 7 Cal.App.4^th 1439,1448)

 

It is well settled that restitution will be denied where application of the doctrine would involve a violation or frustration of the law or opposition to public policy. (Dinosaur Development, Inc. v. White, supra, 216 Cal.App.3d at p. 1315; Lucky Auto Supply v. Turner (1966) 244 Cal.App.2d 872, 885} Indeed, section 140 of the Restatement of Restitution expressly states that a person may be prevented from obtaining restitution for a benefit because of his wrongful conduct in connection with the transaction on which his claim is based. Allowing the director of a homeowners association, who had breached his fiduciary duties by failing to collect adequate assessments, to maintain an action for restitution against the very persons harmed by his breach would be patently inequitable. The demurrer to this cause of action was properly sustained.(Lauriedale, supra at 1449)

 

Here, following the reasoning of Lauriedale, Littlejohn argues Defendants are barred from seeking restitution from him because as Plaintiff’s husband he was harmed by Defendants breach of their fiduciary duties owed to Plaintiff.  The facts of Lauridale are potentially distinguishable in that the defendants in Lauriedale were actually seeking what the appellate court defined as restitution, although in the context of indemnity. “What appellants actually seek is restitution: a term which modernly has been extended to include not only the restoration or giving back of something to its rightful owner, but indemnification such as appellants seek in this case.”(Id at 1448) Nevertheless, Littlejohn as Plaintiff’s husband has potentially been damaged by Defendants’ alleged breach of their fiduciary duties such that it would be inequitable to allow Defendants to recover from Littlejohn.

 

It appears Defendants’ claims against Littlejohn are more appropriately included with Defendants’ affirmative defenses to Plaintiff’s action.  

 

Additionally, joint and several liability among alleged tortfeasors is not based upon duties owed among the tortfeasors, but rather it is premised upon a duty owed to the plaintiff. (Leko v. Cornerstone Bldg Inspection Service (2001) 86 Cal.App.4^th 1109, 1115) In other words, all of the alleged joint tortfeasors must each owe an independent duty to the plaintiff. (Leko, supra at 115) Here, Defendants do not allege that Littlejohn owed any duty to Plaintiff. Rather, they only allege that Littlejohn was “acting in a representative capacity for Plaintiff.”

 

Finally, Littlejohn takes it upon himself to demurrer on behalf of the Staniers to Defendants’ claim for express indemnity. The Staniers are the only ones with standing to demurrer to the express indemnity cause of action.

 

 

 

     Logan Kile has filed a Will Contest challenging the validity of a Will executed August 24, 1995 (1995 Will) by Florence Warren and a Codicil to that Will executed September 5, 2003 (Codicil). The 1995 Will and the Codicil are not attached to the Contest. The 1995 Will is Exhibit B to Logan’s Reply Brief. The Codicil is Exhibit F to Johnson’s Objection to Contest lodged with the court March 16, 2009. 

 

Logan Kile is the son of Laura Kile. Laura is Florence Warren’s predeceased daughter. Kayla and Krystal are Logan Kile’s children and Laura’s grandchildren.

 

The 1995 Will is essentially a “pour over” will that transfers assets of Florence Warren’s probate estate to the Warren Family Trust. According to the demurrer, the terms of the Warren Family Trust entitled Laura to 15 percent of the trust assets and gave her a limited power of appointment over her interest in the trust estate. The trust further provides that if Laura predeceased Florence without exercising her power of appointment, Laura’s share of the trust is held in trust for Laura’s grandchildren as if Logan was deceased. (See Exhibit A at pages 18-19 of the Restated Family Trust submitted to the court in connection with a separate motion). 

 

According to the demurrer, Laura predeceased Florence without exercising her power of appointment in accordance with the terms of the Warren Family Trust.

 

In 2003, Florence executed a codicil to the 1995 Will. It deleted the provisions that distributed assets to the Warren Family Trust. The Codicil requires that assets be distributed to Florence’s son Robert Johnson if living or to his spouse, if living. Interlineations in the instrument further states, “provided one-half of the Warren Ranch goes to Laura’s two grandchildren in accordance with the terms of the Warren Trust F.W.”

 

Logan’s First Amended Will Contest challenges the validity of both the codicil and the 1995 Will. Robert Johnson is deceased. His spouse, Geraldine Johnson is living and is the demurring party and is designated as the successor executor in the codicil. 

 

Initially, the demurrer contends that Logan does not have standing to contest the codicil or the 1995 Will as he is not an interested party. With respect to the sufficiency of the allegations, the demurrer contends that the petition does not state a cause of action pursuant to Probate Code §21350, that it is uncertain and that petitioner is not entitled to a trial by jury.

 

Probate Code §1000 provides that, unless there is a specific rule stating otherwise, the rules of practice applicable to civil actions apply to proceedings under the Probate Code. Thus a demurrer to a petition is proper.

 

The request for judicial notice by counsel for Logan is denied. The proffered Supreme Court decision is irrelevant to the determinations on this demurrer. The court does not take judicial notice of the truth of statements made in the Report of the Conservator.   See generallySosinsky v. Grant (1992) 6 Cal.App.4th 1548.

 

Respondent contends that petitioner Logan has no standing because he is not an “interested party.” “[A]n interested person who may contest a will is one who has ‘such a pecuniary interest in the devolution of the testator's estate, as would be impaired or defeated by the probate of a will or be benefited by the setting aside of the will.’” Estate of Molera (1972) 23 Cal.App.3d 993, 999 Demurring party contends that, even if Logan successfully invalidates the testamentary instruments, he is not entitled to distribution under any circumstances. 

 

If Logan successfully challenges the codicil, the distribution provisions of the 1995 Will become operative and transfer non trust assets to the Warren Family Trust. Respondent contends that Logan does not participate in distribution of assets from the Warren Family Trust because Laura never exercised her power of appointment. 

 

As far as the challenge to the Codicil alone is concerned, the validity or invalidity of that instrument does not appear to affect Logan’s pecuniary interest. If valid, the Codicil directs assets to Robert Johnson. If invalid, the 1995 pour over will is operative directs assets to the Warren Family Trust. Logan does not participate in distribution of the Warren Family Trust because Laura’s Will does not appear to serve as a valid power of appointment consistent with the terms of the trust.

 

Laura’s Will was executed in 1994. The Restatement of the Warren Family Trust was executed in 1995. It does not appear that Laura’s Will constitutes a valid power of appointment under the specific terms of the Restated Warren Family trust particularly because it does not contain the conditions set out in that trust. (See Exhibit A at pages 18-19 of the Restated Family Trust submitted to the court in connection with a separate motion)

 

Although the parties did not brief the issue in any detail, it does not appear that Logan can be identified as an “interested party” to contest the 2003 Codicil.

 

However, Respondent’s contention that Logan has no standing if he invalidates the 1995 Will appears unsupported. It appears to the court that if both the 1995 Will and the Codicil were invalidated, no instrument directs the distribution of Florence’s non-trust assets. In that scenario it appears that the laws of intestate succession would control. Although the parties did not address this possibility, Logan (with a successful challenge to both the codicil and the 1995 Will) may well have a right to intestate succession of those assets thereby making him an interested party.

 

The allegations supporting a contest of the 1995 will state that the will was invalid due to its cancellation and preemption when the W. and F. Warren Irrevocable Trust was restated. As discussed below, these allegations are uncertain. Therefore, petitioner lacks standing.

 

The complaint does not state a valid cause of action for invalidation of the codicil based upon Probate Code §21350.  Robert Johnson is the son of Florence Warren. Probate Code §21351(a) states that its prohibition on transfers does not apply where the transferor is a blood relative of the transferee. This includes persons within the fifth degree or heirs of the transferor. Ross, Probate (Rutter Group 2009) §16:517.18

 

However, the Contest does, in a conclusory fashion, allege that undue influence by Robert Johnson was exerted upon Florence in procuring the codicil. (First Amended Contest to Will and Codicil at ¶¶2 and 4)

 

The Contest further alleges that Florence lacked testamentary capacity at the time that the Codicil was executed. (First Amended Contest to Will and Codicil ¶¶5 and 7)

 

Neither of these bases for invalidation of the codicil is addressed in the demurrer. They do not involve or depend upon the application of Probate Code §21350. Although they are not set out as separate claims or causes of action, any valid cause of action will overcome a general demurrer.   Weil & Brown, Civil Procedure Before Trial (Rutter Group 2009) §§7:40 and 7:41

 

Paragraphs 8, 9 and 10 of the contest appear to allege that the W. and F. Warren Irrevocable Trust invalidated and preempted the 1995 Will. It further appears from the exhibits that the W. and F. Warren Irrevocable Trust and the Warren Family Trust are separate and distinct trusts. The allegations are confusing as they fail to demonstrate how the terms of Restatement of the W. and F. Warren Trust would invalidate an earlier pour over will that relates to the Warren Family Trust. The complaint is uncertain in that regard.  

 

The demurrer to the request for a jury trial is improper. A motion to strike the allegation is the proper method to address an improper request for a jury trial.

 

The Contest alleges invalidity of the 1995 Will and the Codicil on a number of different theories without stating separate causes of action or basis for the invalidation. The court interprets the Contest as, at least, two separate will contests. One is to invalidate the codicil and the other is to invalidate the 1995 Will.

 

Because it does not appear that that Laura’s Will served as a valid power of appointment under the terms the Restated Warren Family Trust, Logan has no standing to contest the 2003 codicil alone.   

 

Absent a valid power of appointment, Logan can only have standing if he successfully challenges both the 2003 codicil and the 1995 Will. However, the allegations in support of invalidating the 1995 Will are uncertain. Absent a valid theory to invalidate the 1995 Will, petitioner lacks standing.

 

 

Probate Code §21350 does not apply to invalidate the codicil. However, Logan did allege alternate theories (namely undue influence and lack of capacity) for invalidating the codicil that were not addressed in the demurrer. As stated above, any valid cause of action overcomes a general demurrer. Accordingly, the general demurrer to the portion of the Contest that challenges the validity of the Codicil is overruled. 

 

With respect to the 1995 Will the demurrer for uncertainty is really in the form of a special demurrer. CCP §430.10(f)

 

In this instance the defendant cannot reasonably respond because the allegations of the Contest concerning the invalidity of the 1995 Will are uncertain. The demurrer to the Contest based upon uncertainty with respect the challenge to the validity of the 1995 Will is sustained with leave to amend.

 

The demurrer based upon the request for a jury trial is overruled. That issue should be addressed with a motion to strike. 

 

 

 

Mary Long, Tim Horner and Jean Brockelman (Plaintiffs) bring an action against Lost Oak Village Condominium Owners’ Association (Lost Oak) and a litany of other defendants for failure to maintain and repair the premises which has allegedly resulted in water intrusion and mold in Plaintiffs’ respective condominium units.

 

Plaintiffs bring a motion to compel Lost Oak’s response to a request for production of documents. Plaintiffs represent that on multiple occasions John Slobodnick of JM Reiss Construction Resources, a consultant retained by Lost Oak, inspected Plaintiffs’ condominiums and prepared inspection reports. Plaintiffs claim that it was represented that Plaintiffs would receive copies of Slobodnick’s findings and inspection reports. When Plaintiffs did not receive the reports, Plaintiffs propounded on Lost Oak a request for production of documents.

 

Plaintiffs’ motion to compel was filed on November 23, 2009. On November 24, 2009, Lost Oak forwarded to Plaintiffs its response to the request for production of documents. Lost Oak’s service of the response technically renders this motion moot. However, Plaintiffs did not remove the motion from the calendar and Lost Oak and other defendants have now opposed the motion. “Unless the propounding party takes the matter off calendar, the court may determine whether the responses are legally sufficient.” (Sinaiko Health-care Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4^th 390, 410-411)

 

Lost Oak’s responses to Plaintiffs’ request for production of documents asserts the attorney work product doctrine objection and states all other non-privileged documents will be produced. Lost Oak contends the findings and reports of its consultant are protected by the attorney work product doctrine which is held by Lost Oak and three other parties to the action. Thus, in conjunction with Lost Oak, defendants Pacific Beach Properties, Inc., William Austin and Deborah Martin Goetz & Associates, Inc., Manderley Property Services, Inc. and Goetz Manderley, LLC all oppose the motion by asserting their respective attorney work product objection to the production of their consultant’s report.

 

While a party’s failure to respond timely to a discovery request waives that party’s right to objection to the discovery, the Court has statutory power to grant relief from the waiver. Pursuant to CCP §2031.300, upon noticed motion, the Court may grant relief from waiver of the objections. Lost Oak, in its opposition, requests relief from its waiver of the attorney work product doctrine on the grounds of mistake in calendaring the response date. In reply, Plaintiffs do not oppose Lost Oak’s request for relief from the waiver.   

Lost Oak, in conjunction with the other defendants named above, contends that Slobodnick was jointly retained as a defense consultant and his findings and reports are protected by the attorney work product doctrine. Slobodnick’s findings and reports are only discoverable if and when he is disclosed as an expert witness under CCP §2034.010.

The opinions of experts retained by counsel solely as a consultant are entitled to qualified “work product” protection. (Weil & Brown, California Practice Guide, Civil Pro. Before Trial, 8:246) This is confirmed in Armenta v. Superior Court (2002) 101 Cal.App.4^th 525, in which the appellate court held: 

As noted in Shadow Traffic Network v. Superior Court (1994) 24 Cal.App.4th 1067, 1079 , ‘reports prepared by an expert as a consultant are protected until the expert is designated as a witness. [Citation.] ... However, to the extent that said reports embrace counsel's impressions and conclusions, the work-product doctrine gives absolute protection to that information. [Citation.]’ (See also Mack v. Superior Court (1968) 259 Cal.App.2d 7, 10)(Armenta, supra at 535)

Slobodnick’s findings and reports appear to be protected by the attorney work product doctrine and that protection can be asserted by all of the parties that retained the consultant. If parties collaborate on obtaining work product, one party does not have the authority to waive the privilege on behalf of the other collaborating parties. (Armenta, supra at 535)

Where parties collaborate on creating or obtaining work product, waiver of the protection by one of them does not bar the other from asserting it: ‘Where work product is the result of collaboration by counsel, all holders of the attorney work-product privilege must consent to waiver of the privilege.’ [Armenta v. Sup.Ct. (James Jones Co.) (2002) 101 CA4th 525, 532—party's willingness to waive attorney work product protection for test results by expert jointly retained with coparty did not affect coparty's right to prevent disclosure of those results] (Weil & Brown, California Practice Guide, Civil Pro. Before Trial, 8:263.12)

Consequently, all of the collaborating defendants have the ability to assert the attorney work product doctrine and in this case have asserted the doctrine to prevent premature disclosure of their consultant’s findings.

In reply, Plaintiffs contend the consultant’s reports are not attorney work-product because the inspections and testing were “pursuant to the Court’s directive to assess and exchange information.”   There is no direct evidence to suggest that the Court ordered or that the parties stipulated that the defendants’ consultant’s inspection findings and reports were to be made available to Plaintiffs. 

Plaintiffs also argue that pursuant to Civil Code §1365.2, as members of the condominium owners’ association, they are entitled to the records and reports.  However, Civil Code §1365.2(d)(1)(C) provides that the association may withhold the release of information that is privileged, which includes documents related to litigation. 

Plaintiffs’ motion to compel Lost Oak’s response to the request for production of documents is denied as the defense consultant’s findings and reports are protected from discovery at this time by the attorney work product doctrine.