Dugar vs. Estate of Joann Kelperis

Therefore, the court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters

alleged or are proper subjects of judicial notice. (Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 fn.7.)

However, “where facts appearing in attached exhibits or judicially noticed documents contradict, or are inconsistent with, the complaint's allegations, we must rely on the facts in the exhibits and judicially noticed documents.” (Jimenez vs. Mrs. Gooch’s Natural Foods Markets, Inc. (2023) 95 Cal.App.5th 645, 653.)

Although courts should take a liberal view of inartfully drawn pleadings, (see Code Civ. Proc., § 452), it remains essential that a pleading set forth the actionable facts relied upon with sufficient precision to inform the responding party of the matters that the pleading party is alleging, and what remedies or relief is being sought, (see Leek v. Cooper (2011) 194 Cal.App.4th 399, 413).

Bare conclusions of law devoid of any facts are insufficient to withstand demurrer. (Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470, 481; see Code Civ. Proc., § 425.10, subd. (a).)

Lack of Legal Capacity

Defendant demurs to the entire Complaint on the basis that an estate is not an entity and lacks the legal capacity to be sued.

Defendant is correct.

As the Court of Appeal has stated:

It is conceded that plaintiff Seymour M. Lazar, an attorney at law, appearing in propria persona, erred in naming the “Estate of Nathan Richard Lazar, Deceased,” as the defendant in the action (instead of naming the executors of the will of said decedent as defendants). The “Estate” of a decedent is not an entity known to the law. [Citation] In Estate of Bright v. Western Air Lines, 104 Cal.App.2d 827, 828–829, 232 P.2d 523, 524, it was said: “An ‘estate’ is not a legal entity and is neither a natural nor artificial person. It is merely a name to indicate the sum total of the assets and liabilities of a decedent, or of an incompetent, or of a

bankrupt. [Citations.] An ‘estate’ can neither sue nor be sued.”

(Lazar v. Lazar’s Estate (1962) 208 Cal.App.2d 554, 557.)

Plaintiff failed to file an opposition or respond to the demurrer, and thus, has waived any arguments on this issue. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288 [failure to address or oppose issue in motion constitutes waiver of that issue]; see DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 566 [holding that failure to challenge contention in brief results in the concession on that issue].)

Therefore, the court will sustain the demurrer on this basis.

Premature

Defendant also contends that the Complaint fails because it is premature, pursuant to Probate Code section 9351.

That provision states:

An action may not be commenced against a decedent’s personal representative on a cause of action against the decedent unless a claim is first filed as provided in this part and the claim is rejected in whole or in part.

(Probate Code, § 9351.)

Here, the Complaint alleges that “[a]fter August 7, 2025, upon the passing of Joann Kelperis, the Estate of Kelperis became the Defendant in this action.” (Compl., ¶ 2.)

However, the Complaint does not allege that a claim was filed in the Probate Court and rejected in whole or in part. (See Hentsch v. Porter (1858) 10 Cal. 555, 559-560 [failure to allege claim presentation to estate administrator is basis for demurrer].) (fn.1)

Thus, the court will sustain the demurrer on this basis.

Uncertainty

Defendant next asserts that the Complaint is uncertain.

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Demurrers for uncertainty “are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) “[A] demurrer for uncertainty will not be sustained where the facts claimed to be uncertain or ambiguous are presumptively within the knowledge of the demurring party.” (Ching v. Dy Foon (1956) 143 Cal.App.2d 129, 136.)

“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.” (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.)

In addition, a demurrer for uncertainty must identify by line and page number, the language that creates the uncertainty. (Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809, disapproved of on other grounds, Katzberg v. Regents of University of California (2002) 29 Cal.4th 300.)

“Generally, the failure to specify the uncertain aspects of a complaint will defeat a demurrer based on the grounds of uncertainty.” (Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809, disapproved of on other grounds, Katzberg v. Regents of University of California (2002) 29 Cal.4th 300.)

Here, the Complaint is not so poorly drafted that the Defendant cannot respond, nor does Defendant specify the pages and lines of the Complaint that are uncertain.

Accordingly, the court will overrule the demurrer on this basis.

5th through 9th Causes of Action

Defendant contends that the 5th through 9th Causes of Action fail to state facts sufficient to constitute a cause of action.

Defendant is correct. Each of the 5th through 9th Causes of Action fail to allege facts to show the existence of a required element of those causes of action, for the reasons specified by Defendant in the demurrer.

Therefore, the court will sustain the demurrer to the 5th through 9th Causes of Action.

Leave to Amend

“It is an abuse of the trial court's discretion to sustain a demurrer without leave to amend if there is a reasonable possibility the plaintiff can amend the complaint to allege any cause of action.” (Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 711.)

However, it is the plaintiff's “burden to establish how the complaint can be amended to state a valid cause of action.” (Sanowicz v. Bacal (2015) 234 Cal.App.4th 1027, 1044.) In order to meet this burden, a plaintiff may submit a proposed amended complaint or enumerate facts and demonstrate how those facts establish a cause of action. (See Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 890.)

Nonetheless, “for an original complaint, regardless whether the plaintiff has requested leave to amend, it has long been the rule that a trial court's denial of leave to amend constitutes an abuse of discretion unless the complaint ‘shows on its face that it is incapable of amendment.’” (Eghtesad v. State Farm General Insurance. Co. (2020) 51 Cal.App.5th 406, 411, quoting King v. Mortimer (1948) 83 Cal.App.2d 153, 158; see Cabral v. Soares (2007) 157 Cal.App.4th 1234, 1240 [“Only rarely should a demurrer to an initial complaint be sustained without leave to amend.”].)

As the Court of Appeal has explained: “Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been

given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.)

Here, the demurrer is asserted against the original Complaint such that Plaintiff has not had a prior opportunity to amend. Therefore, the court will exercise its discretion and grant leave to amend.

Motion to Strike

Defendant Estate of Joann Kelperis Motion to Strike is taken OFF CALENDAR as moot.

Pending Motion

Defendant Estate of Joann Kelperis moves to strike the punitive damages allegations, enhanced damages allegations, prayer for relief for relating to partnerships, prayer for relief relating to statute of frauds, and prayer for relief for punitive damages of the Complaint filed by Plaintiff Lanny Jay Dugar.

In light of the court’s ruling sustaining the demurrer to the entirety of the Complaint, the Motion to Strike is moot and will be taken off calendar.

However, Defendant’s arguments on the motion to strike are well taken and Plaintiff should keep them in mind if Plaintiff intends to amend the Complaint.

Defendant shall give notice of these rulings.

7 Gemcrest LLC vs. O.Rhyan Motions to Be Relieved as Counsel Capital Management, LLC Counsel Scott A. Kron, Esq., and Kron & Card LLP’s Motion to Be Relieved as Counsel for 30-2025-01467722 Defendant Sunil K. Mehta is CONTINUED to August 3, 2026 at 9:00 a.m. in Department N15.

Counsel Scott A. Kron, Esq., and Kron & Card LLP’s Motion to Be Relieved as Counsel for Defendant Ila Mehta is CONTINUED to August 3, 2026 at 9:00 a.m. in Department N15.

Counsel Scott A. Kron, Esq., and Kron & Card LLP’s Motion to Be Relieved as Counsel for Defendant O.Rhyan Capital Management, LLC, is