NICOLE EMILY JORDAN V. ROGERS, SHEFFIELD & CAMPBELL, LLP, ET AL

Case Number

23CV02702

Case Type

Hearing Date / Time

Mon, 07/29/2024 - 10:00

Nature of Proceedings

1) Demurrer by Defendant Jamie Cathleen Green to Plaintiff’s First Amended Complaint; 2) Motion by Defendant Jamie Cathleen Green to strike portions of Plaintiff’s First Amended Complaint

Tentative Ruling

Nicole Emily Jordan v. Rogers, Sheffield & Campbell, LLP, et al.

Case No. 23CV02702

Hearing Date:         7/29/2024                                                       

HEARINGS: Demurrer by defendant Jamie Cathleen Green to plaintiff’s First Amended Complaint

                        Motion by defendant Jamie Cathleen Green to strike portions of plaintiff’s First Amended Complaint

                                   

ATTORNEYS:          Tamineh Roshanian of Roshanian Payman PC for plaintiff Nicole Emily Jordan

                                    Kenny C. Brooks / Michael McCarthy of Nemecek & Cole for defendants Rogers Sheffield & Campbell, LLP and Sheila Price

                                    Rachel Van Mullem / Jennifer J. Lee of County Counsel’s Office for defendant Jamie Cathleen Green

                       

TENTATIVE RULINGS:  

Because Nicole has once again failed to allege compliance with the Governmental Tort Claim requirement, the demurrer by public employee Jamie Cathleen Green will be sustained, and the motion to strike ordered off calendar as moot. The Court will direct Nicole to file and serve any further amended pleading on or before August 26, 2024, or such other date as this Court may provide at the hearing on this demurrer.

Background: Based upon the allegations of the original complaint and the first amended complaint, and the matters of which judicial notice has been requested: Dr. Borimir Jordan and Virginia Jordan, who were husband and wife, have three daughters, Angela Jordan Hart, Jennifer Jordan, and Nicole Jordan. [Note: Because of the multiplicity of persons with the same surname, the Court refers to members of the Jordan family by their first names for purposes of clarity. No disrespect is intended.]

In 1998, they established the Borimir and Virginia Jordan Family Trust. The trust was ultimately amended and restated by a Third Amendment to and Complete Restatement of Declaration of Trust in April 2017. It was amended by a Fourth Amendment executed in 2010, and a Fifth Amendment in 2012. The Jordans’ estate planning attorney was Homer Sheffield, with the law firm of Rogers Sheffield & Campbell, LLP.

In September 2018, the Jordans allegedly requested that Sheffield draft a Sixth Amendment to the trust, leaving significant assets to Nicole. Instead of doing so, Sheffield terminated his representation of the Jordans. The Jordans then allegedly self-drafted and executed a Sixth Trust Amendment, naming Nicole as sole successor Trustee and sole beneficiary of the Trust, thereby effectively disinheriting the Jordans’ daughters Angela and Jennifer.

Borimir passed away on March 26, 2020. Upon belatedly learning of his death, Angela sought to establish a conservatorship over her mother, based on her belief that Nicole—who had lived with her parents for some time—was abusing and neglecting Virginia. Her petition for appointment of temporary conservator for Virginia was filed in April, 2020. The Probate Court appointed Mark Watson as the temporary conservator of Virginia’s estate after hearing on October 15, 2020. Virginia passed away on November 1, 2020.

On January 27, 2021, Mark Watson petitioned the Probate Court (Case No. 21PR00040) for an order confirming himself as trustee and confirming trust assets, setting the hearing on the petition for March 18, 2021. The petition attached the Third Amendment to and Complete Restatement of Declaration of Trust, and the Fourth and Fifth Amendments thereto, which it collectively referred to as the “Trust” which the Trustee sought to confirm and administer. The petition alleged that upon Borimir’s death, the trust agreement directed the division of the trust estate into two separate shares, Trust A and Trust B, each to be administered as a separate trust. Trust B is to be established as an irrevocable subtrust, and Trust A to remain amendable and revocable by Virginia as the surviving Settlor. It contained provisions directing the manner in which the subtrust were to be administered. The petition alleged further that upon Virginia’s death, Trust A became irrevocable, and both Trust A and Trust B became terminating trusts subject to post-death administration. Successor co-trustee Pearlman declined to act as trustee, and successor co-trustee Homer G. Sheffield, Jr. on December 7, 2020, appointed Mark Watson as trustee of the trust and all sub-trusts. Watson then began post-death administration of Trust A and Trust B under the Trust, including the marshalling of assets and sending out Notices by Trustee to the beneficiaries of the Trust. The Notices by Trustee were mailed to the beneficiaries on January 7, 2021, and included copies of the Trust and all amendments thereto.

The Third and Fourth Amendments had essentially set aside specific real property and assets for Nicole and provided that the remainder would be divided between Angela and Jennifer. The Fifth Amendment added a provision for $10,000 distributions to each of three nieces who survived Virginia and Borimir, and directed that the trustees sell all remaining trust assets, including the real property, and distribute the proceeds to each living child of the Jordans in equal shares.

Watson’s Petition alleged that he had received correspondence from the Settlors’ daughter, Nicole Jordan, that the trust documents in Watson’s possession may have been amended or revoked, or that such documents did not authorize Watson to act on behalf of the trust. Watson advised the court that he had attempted to understand her allegations, but her responses were confusing and inconsistent, and she refused to provide copies of the documents she claimed superseded those under which Watson was acting. Watson therefore sought the Court’s order confirming that the trust documents attached to the petition were valid and set forth the most recent and controlling iteration of the Trust, and that Watson is the sole Trustee of the Trust.

No one opposed the petition in writing, nor did anyone appear at the March 18, 2021 hearing in opposition to the petition. After that hearing, the Probate Court granted Watson’s petition. The formal order, filed March 24, 2021, confirmed Watson as Trustee, noted that Nicole Jordan had contended that the trust documents were amended or revoked and do not allow Watson to act on behalf of the trust, but had provided no evidence to support her claims. Under those circumstances, the Probate Court confirmed that the petition set forth the current and controlling iteration of the trust, and appointed Watson as sole trustee of the trust as amended, among other orders made on that date.

On March 15, 2022, Nicole filed a verified petition in the Probate Court trust action, seeking to establish herself as the sole successor trustee and sole beneficiary of The Borimir and Virginia Jordan Family Trust, and to establish trust assets under a Sixth Trust Amendment, which she alleged had been drafted and executed by Virginia and Borimir without assistance of counsel, on July 15, 2019. The petition sought to validate the Sixth Trust Amendment, and to invalidate the Fourth and Fifth Trust Amendments, among other requests.

Angela demurred to the petition on various grounds, including that it was time-barred. Jennifer joined in the demurrer. After a continuance by the Probate Court to permit Angela to respond to Nicole’s late-filed opposition papers, and another continuance to permit Angela to respond to Nicole’s unauthorized supplemental opposition papers, the demurrer was ultimately heard on January 19, 2023. At that time, the Probate Court sustained on statute of limitations grounds (Prob. Code, § 16061.8), without leave to amend, the demurrer to the Petition to validate the Sixth Trust Amendment, the Petition to Confirm Assets Held by Mark Watson Pass to Petitioner as the Sole Beneficiary and Successor Trustee, and the apparent sub-petitions to Invalidate the Fourth and Fifth Trust Amendments, and for Declaratory Relief. The Probate Court found that Nicole’s petition to invalidate the Fourth and Fifth Trust Amendments and to validate the Sixth Trust Amendment (and related claims) had been filed more than 10 months following the expiration of the 120-day period set forth in Probate Code section 16061.8, and was therefore barred. With respect to the petition for accounting, the Probate Court sustained the demurrer with leave to amend to the extent it sought an accounting within the terms of Probate Code section 17200(b)(7)(B) and (C).

Nicole appealed the Probate Court’s decision on March 10, 2023.

On June 22, 2023, Nicole filed her initial complaint in this action, allegedly individually and in her capacities as successor trustee and beneficiary of The Borimir and Virginia Jordan Family Trust, and as beneficiary and successor-in-interest to the Estate of Virginia Jordan, deceased. The complaint names as defendants the law firm of Rogers, Sheffield & Campbell, LLP, Angela Jordan Hart, Jennifer Jordan, Adult Protective Services employee Jamie Cathleen Green (Green), and Amethyst Eve Sheffield and Sheila T. Price, as Co-Personal Representatives of the Estate of Homer G. Sheffield Jr., deceased (Price/Sheffield or, collectively, Sheffield).

The complaint alleged causes of action for (1) breach of fiduciary duty (vs. RSC and Sheffield), (2) breach of duty to preserve confidentiality (vs. RSC and Sheffield), (3) legal malpractice (vs. RSC and Sheffield), (4) breach of contract (vs. RSC and Sheffield), (5) intentional interference with contractual relations (vs. Angela, Jennifer, and Green), (6) breach of the implied duty of good faith and fair dealing (vs. RSC and Sheffield), (7) constructive fraud (vs. RSC and Sheffield), (8) fraud by concealment (vs. RSC and Sheffield), (9) intentional misrepresentation (vs. RSC, Sheffield, Angela and Jennifer), (10) conspiracy to defraud (vs. Angela, Jennifer, and Green), (11) negligent misrepresentation (vs. RSC and Sheffield), (12) negligence (vs. RSC and Sheffield), (13) dependent adult emotional abuse and harassment (vs. Angela, Jennifer, and Green), (14) elder emotional abuse and harassment (vs. Angela, Jennifer, and Green), (15) intentional infliction of emotional distress (vs. Angela, Jennifer, and Green), (16) reformation of trust (to confirm the existence and validity of the Sixth Amendment), and (17) declaratory relief (seeking a declaration regarding the validity of the Sixth Amendment, who should be successor trustee of the trust, and the beneficiaries and amounts of distributions from trust assets).

The complaint set forth many pages of allegations of wrongdoing against Green. Essentially, it alleged that Green, in her position as an employee of the Adult Protective Services, was assigned to investigate claims made against Nicole by Angela and Jennifer with respect to Nicole’s treatment of Borimir and Virginia, and became fixated, disturbed, “out to get” Nicole, and tormented Virginia and Nicole over a period of years. She is alleged to have failed to investigate the Jordans’ contentions that Angela and Jennifer verbally abused them; falsely accused Nicole of having improperly taken funds from or written checks on Jordan accounts; promoted and encouraged Angela and Jennifer to “conserve” the Jordans; had the Jordans’ financial accounts frozen which caused them financial damage and injury; conspired with Angela, Jennifer, Sheffield, and others to frame Nicole; failed to investigate Angela’s and Jennifer’s false allegations of Nicole’s drug use; failed to request an autopsy after Virginia’s death (which Nicole alleges was caused by the administration of a heroin overdose by a hospice doctor), and writing a misleading report to the Probate Court, among other allegations of wrongdoing.

Defendant Green demurred to the complaint, contending that Nicole’s claim had been untimely and she had failed to commence late claim proceedings, that the complaint was served upon County prior to its rejection of the claim for untimeliness, and that the various causes of action alleged against her were insufficiently alleged. Defendant Green also sought to strike the punitive damages claims against her.

After hearing on December 11, 2023, the Court (1) sustained the Green demurrer based upon failure to allege compliance with the claims presentation requirement, which mooted all other grounds for demurrer, and (2) found that the sustaining of the Green demurrer mooted the motion to strike. Plaintiff was permitted leave to file an amended pleading.

Plaintiff’s First Amended Complaint (FAC) was filed on January 8, 2024, again filed by Nicole allegedly individually and in her capacities as successor trustee and beneficiary of The Borimir and Virginia Jordan Family Trust, and as beneficiary and successor-in-interest to the Estate of Virginia Jordan, deceased. The FAC omitted the previously alleged causes of action for breach of contract, intentional interference with contractual relations, breach of the implied covenant of good faith and fair dealing, elder emotional abuse and harassment, and intentional infliction of emotional distress, and added causes of action for intentional interference with inheritance, and conspiracy to interfere with inheritance. Even with the elimination of five causes of action, the FAC spans 75 pages, including 55 pages (232 paragraphs) of preliminary allegations before the first cause of action is alleged. The currently-alleged causes of action include (1) breach of fiduciary duty (vs. RSC, Sheffield), (2) breach of the duty to preserve confidentiality (vs. RSC, Sheffield), (3) legal malpractice (vs. RSC, Sheffield), (4) intentional interference with inheritance (vs. RSC, Sheffield, Green, Angela, Jennifer), (5) constructive fraud (vs. RSC, Sheffield), (6) fraud by concealment (vs. RSC, Sheffield), (7) intentional misrepresentation (vs. RSC, Sheffield, Angela, Jennifer), (8) conspiracy to interfere with inheritance (vs. RSC, Sheffield, Green, Angela, Jennifer), (9) negligent misrepresentation (vs. RSC, Sheffield), (10) negligence (vs. RSC, Sheffield), (11) dependent adult emotional abuse and harassment (vs. Angela, Jennifer, Green), (12) reformation of trust (not stated against any defendant), and (13) declaratory relief (not stated against any defendant).

The FAC continued to allege the same allegations of wrongdoing against Green, as well as alleging that she was, at all relevant times, employed as a Social Services Worker for the Santa Barbara County Department of Social Services Adult Protective Services program—a position of public employment.

Significantly, however, the FAC still failed to include any allegations either demonstrating or excusing compliance with the claims presentation requirement.

Green demurrer: Green has demurred again on various bases, including that Nicole failed to allege compliance with the Government Claim presentation requirement, and failed to present a timely claim.

Green further demurred individually to each of the three causes of action alleged against her. With respect to the fourth cause of action for interference with inheritance, Green contends that the FAC does not contain facts showing that she directed her allegedly tortious conduct at the testator, as required for the cause of action, and that the cause of action is not available to Nicole because she had an adequate remedy in probate.

With respect to the eighth cause of action for conspiracy to defraud/interference with inheritance, Green asserts that there is no independent tort of conspiracy, nor is there a cause of action for conspiracy to commit a tort. As a result, the cause of action is duplicative of the fourth cause of action for interference with inheritance, and fails for the same reasons.

With respect to the eleventh cause of action for dependent adult emotional abuse and harassment, Green contends there is no independent cause of action for emotional abuse and harassment of a dependent adult. Rather, under the Elder Abuse Act, and elder or dependent adult who suffered abuse may seek and elder abuse restraining order excluding the perpetrator from her residence. (Wel. & Inst. Code, § 15657.03.)

Green motion to strike: Green has moved to strike the punitive damage allegations from the FAC, contending that the allegations are insufficient to support the conclusion that Green’s conduct was malicious, oppressive, or fraudulent, as defined in Civil Code section 3294(c). Additionally, Green asserts that governmental agencies are not liable for punitive damages, and while the County is not named as a defendant, an employing public entity is generally liable for damage or injury caused, must provide an employee’s defense to the action, and is liable to pay any judgment without a right to indemnification from the employee.

Appellate Court ruling on Nicole’s appeal of the Probate decision: By a decision filed on January 16, 2024, the Second District Court of Appeal, Division Six, affirmed the decision of the Probate Court sustaining, without leave to amend on statute of limitations grounds, the demurrer to the Petition to Validate the Sixth Trust Amendment, the Petition to Confirm Assets Held by Mark Watson Pass to Petitioner as the Sole Beneficiary and Successor Trustee, and the apparent sub-petitions to Invalidate the Fourth and Fifth Trust Amendments, and for Declaratory Relief.

Ruling on demurrer and motion to strike brought by defendants RSC and Price/Sheffield: After hearing on July 1, 2024, the trial court sustained in part and overruled in part the demurrers filed by RSC and Price/Sheffield, with the ultimate result being that demurrers to each of the causes of action stated against those demurring defendants were sustained.

Oppositions: Nicole has opposed both Green’s demurrer and her motion to strike.

ANALYSIS: The Court will sustain the demurrer, and permit Nicole one last opportunity to plead her best case against defendant Green. This should include allegations which either demonstrate her compliance with the claims presentation requirement, or demonstrate her excuse from compliance with the requirement.

The Court will direct Nicole to file and serve any further amended pleading on or before August 26, 2024, or such other date as this Court may provide at the hearing on this demurrer.

1.         Standards on demurrer.

The court’s task in ruling on a demurrer is to determine whether the complaint states a cause of action. (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) A demurrer admits the truth of all material facts properly pleaded (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967), no matter how unlikely or improbable they may be (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604), or how unlikely it will be that plaintiff will be able to prove the claim (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214). The court also assumes the truth of all reasonable inferences that may be drawn from the properly pleaded facts. (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1083.) The assumption of truth does not apply, however, to contentions, deductions, or conclusions of law or fact. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters, and therefore lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.)

Where the allegations of the complaint or matters of which judicial notice may be taken reveal a defense to the action, such as a statute of limitations bar, the plaintiff must “plead around” the defense by alleging specific facts which would avoid the apparent defense. Absent such allegations, the complaint is subject to demurrer for failure to state a cause of action. (See Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 825; Lee v. Escrow Consultants, Inc. (1989) 210 Cal.App.3d 915, 917, 921-922.) Similarly, where plaintiff relies on a theory of fraudulent concealment to save a cause of action that otherwise appears on its face to be time-barred, he or she must specifically plead facts that, if proved, would support the theory. (Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 641.

2.         Demurrer.

            A.        Government Tort Claims Act claim requirement

Under the terms of Government Code section 905, any action for money or damages against a local public entity may not be maintained unless a written claim has first been presented. The required contends of such a claim are articulated in Government Code section 910.

Pursuant to Government Code section 911.2(a) a claim relating to a cause of action for death or for injury to a person or to personal property or growing crops must be presented to the public agency no later than six months after accrual of the cause of action. A claim related to any other cause of action must be presented no later than one year after accrual of the cause of action. (Gov. Code, § 911.2, subd. (a).) The statutory time limits within which a claim must be presented to a public entity are mandatory. (Wood v. Riverside Gen. Hosp. (1994) 25 Cal.App.4th 1113, 1119.)

Under Government Code section 911.3(a), when a claim is subject to the six month time limit for presentation of a claim, and is presented after such time without an application to present a late claim made pursuant to Section 911.4, the agency may, at any time within 45 days after the claim is presented, give written notice to the person presenting the claim that it was not timely filed, and is being returned without further action. The notice shall inform the claimant that his or her only recourse is to apply for leave to present a late claim.

The agency must act on the claim within 45 days after the claim is presented. (Gov. Code, § 912.4, subd. (a).) If the agency fails or refuses to act on a claim within the time prescribed, the claim will be deemed to have been rejected by the board on the last day of the period within which the board was required to act upon the claim. (Gov. Code, § 912.4, subd. (c).)

No suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented, until a written claim therefor has been presented to the public entity and has been acted upon or deemed to have been rejected. (Gov. Code, § 945.4.) This provision is made applicable to claims against public employees by Government Code section 950.6(a), which contains similar provisions.

Any plaintiff filing a complaint against a public entity (or public employee) must allege facts demonstrating or excusing compliance with the claim presentation requirement. If they do not, their complaint is subject to a general demurrer for failure to state facts sufficient to constitute a cause of action. (Malear v. State of California (2023) 89 Cal.App.5th 213, 220, quoting State of California v. Superior Court (Boddle) (2004) 32 Cal.4th 1234, 1243.)

            B.        Application.

The authorities cited above were discussed by the Court when it sustained Green’s demurrer to the original complaint, based upon Nicole’s failure to allege any facts to demonstrate or excuse her compliance with the claim presentation requirement. The Court provided Nicole with leave to amend to include such allegations. However, no allegations were added to the FAC to demonstrate or excuse compliance with the claim presentation requirement, requiring that the demurrer made on this basis be sustained once again.

The Court will sustain Green’s demurrer, with leave to amend. Because the demurrer is being sustained, the Court once again finds that the motion to strike is moot, and will order it off calendar.

The Court notes that it also sustained the demurrer of the attorney defendants to Nicole’s FAC, with leave to amend, but deferred setting the time by which any further amended pleading must be filed, pending the hearing on Green’s demurrer and motion to strike. Nicole’s counsel had represented in her response to the demurrer, filed on May 9, 2024, that she needed a period of three to four months to obtain discovery of information necessary to prepare an amended pleading. The current hearing is almost three months after that date, which should leave little time left in the window of time which counsel suggested she would need. The Court will direct Nicole to file and serve any further amended pleading on or before August 26, 2024, or such other date as this Court may provide at the hearing on this demurrer.