Gayle C. Aruta and John C. de Sulima Przyborowski v. Inna Vladimirovna Cook

On December 19, 2024, Plaintiffs filed a first amended complaint (FAC) asserting the same causes of action as the original complaint. The FAC repeats the allegations of the original complaint, but adds the allegation that prior to May 2, 2023, Plaintiffs had been named as successor trustees in a prior trust of McCartor. On January 29, 2025, Cook filed a demurrer to the FAC as a whole, and as to the first, third, fourth, fifth, and sixth causes of action. Plaintiffs filed a brief opposition to that demurrer, asserting that the added allegation described above was sufficient to address standing, and that the FAC is otherwise adequately pleaded.

On July 2, the Court sustained the demurrer as to the FAC as a whole and each cause of action, on the ground that Plaintiffs had not sufficiently pleaded their standing. The Court did not address the remaining grounds for demurrer because of the lack of allegations to support standing.

On July 17, Plaintiffs filed their SAC which asserts the same causes of action for (first) financial elder abuse; (second) unfair or deceptive practices against senior citizens and disabled persons; (third) nullification of trust; (fourth) unjust enrichment; and (seventh) theft through false pretenses (Pen. Code, Sec. 496. The SAC asserts a fifth and sixth cause of action for conversion, and adds an eighth cause of action for false imprisonment. The SAC also adds the allegation that Plaintiffs are the agents of McCartor under a power of attorney executed by McCartor. (SAC, P. 1(1) & (10).) On February 13, 2026, Cook filed a demurrer to the SAC as a whole, and as to the first, second, fourth, fifth, sixth, seventh, and eighth causes of action. Plaintiffs have filed an opposition to that demurrer.

Analysis

" 'The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also 'give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.' " (Zhang v. Superior Court (2013) 57 Cal.4th 364, 370, internal quotation marks and citations omitted.) In the demurrer, Cook states: "While the Plaintiffs did amend the complaint to resolve the standing issue, they elected not to address the substantive claims raised by the prior demurrers." (Demurrer at p. 14, ll. 17-19.)

The Court construes this statement as a concession by Cook that Plaintiffs sufficiently plead in the SAC their standing to maintain the causes of action asserted therein. Noted above, the Court's prior rulings did not address the alternative grounds asserted by Cook in their demurrer to the FAC, or Plaintiffs' original complaint.

(1) Demurrer to the First Cause of Action

The first cause of action alleges financial abuse of an elder in violation of Welfare and Institutions Code section 15600 et seq. (the Elder Abuse and Dependent Adult Civil Protection Act or "Act"), which "affords certain protections to elders and dependent adults." (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 152.) "'Elder' means any person residing in this state, 65 years of age or older." (Welf. & Inst. Code, Sec. 15610.27.) Cook does not dispute that the allegations of the SAC described above show that McCartor resides in this state, and is sixty-five years of age or older.

The grounds for the demurrer to the first cause of action include that the SAC fails to state facts sufficient to show that Cook took any property of McCartor and shows only that McCartor gifted the Real Property to Cook; fails to allege, with particularity, facts sufficient to constitute fraud; and fails to allege how, when, where, or by what means Cook took any property of McCartor. For these reasons, Cook argues, the SAC fails to state facts sufficient to constitute a cause of action for financial abuse with the intent to defraud.

The Act defines " '[a]buse of an elder or a dependent adult' " to include "[f]inancial abuse, as defined in [Welfare and Institutions Code] [s]ection 15610.30." (Welf. & Inst. Code, Sec. 15610.07, subd. (a)(3).) The Act provides: "(a) 'Financial abuse' of an elder or dependent adult occurs when a person or entity does any of the following: "(1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both. "(2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both. "(3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Section 15610.70." (Welf. & Inst.

Code, Sec. 15610.30, subd. (a)(1)-(3).)

The Act further provides: "a person or entity takes, secretes, appropriates, obtains, or retains real or personal property when an elder or dependent adult is deprived of any property right, including by means of an agreement, donative transfer, or testamentary bequest, regardless of whether the property is held directly or by a representative of an elder or dependent adult." (Welf. & Inst. Code, Sec. 15610.30, subd. (c).) A person is "deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult." (Welf. & Inst. Code, Sec. 15610.30, subd. (b).)

The Court, for present purposes, gives the SAC a reasonable and liberal construction, and accepts the truth of its well pleaded facts including those "that reasonably can be inferred from those expressly pleaded..." (Regents of University of California v. Superior Court (2013) 220 Cal.App.4th 549, 558; Candelore v. Tinder, Inc. (2018) 19 Cal.App.5th 1138, 1143.) "A Plaintiff is not required to prove bad faith or fraud to prevail on a claim of financial elder abuse." (Cameron v. Las Orchidias Properties, LLC (2022) 82 Cal.App.5th 481, 507.)

Noted above, the SAC asserts that Cook was in a relationship of trust and confidence with McCartor; that McCartor was found in a drugged and malnourished state; that an investigation revealed that Cook had taken money from McCartor and purchased real property in Cook's name; and that the theft of McCartor's property by Cook totals approximately $3 million. The demurrer fails to explain why those allegations are not sufficient to show, expressly or by inference, that Cook deprived McCartor of rights to property held by McCartor, or that McCartor's property was obtained or taken by Cook for a wrongful use.

"[A] demurrer cannot rightfully be sustained to part of a cause of action...." (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047 (Kong).) Even if the SAC fails to state facts sufficient to show any intent by Cook to defraud McCartor (and the Court makes no findings in this regard), the allegations of the SAC described above are sufficient to show a taking, obtaining, or retaining of the property of McCartor by Cook for a wrongful use. The Court does not consider whether Plaintiffs can prove those allegations. (Berg & Berg Enterprises, LLC v.

Boyle (2009) 178 Cal.App.4th 1020, 1034.) For these and all further reasons discussed above, Cook has failed to meet their burden to show why the SAC fails to state any facts sufficient to constitute a cause of action for financial abuse of an elder under the Act. The Court will overrule the demurrer to the first cause of action on the grounds stated.

(2) Demurrer to the Second Cause of Action

As grounds for the demurrer to the second cause of action for unfair or deceptive practices against senior citizens and disabled persons, Cook asserts that Civil Code section 3345 provides a remedy and not an independent basis for liability. Because the second cause of action characterizes a remedy as a separate cause of action, Cook argues, that cause of action is not legally available.

To the extent the second cause of action asserts only a claim for trebled recovery as authorized by Civil Code section 3345 (see Clark v. Superior Court (2010) 50 Cal.4th 605, 611-612 [general discussion]), "a demurrer cannot rightfully be sustained ... to a particular type of damage or remedy." (Kong, supra, 108 Cal.App.4th at p. 1047.) As the demurrer to the second cause of action is directed to a type of remedy authorized under Civil Code section 3345, the Court will overrule the demurrer to that cause of action on the grounds stated.

(3) Demurrer to the Fourth Cause of Action

As grounds for their demurrer to the fourth cause of action for unjust enrichment, Cook asserts that California does not recognize a separate cause of action for unjust enrichment. Cook further asserts that, to the extent the fourth cause of action seeks restitution based on any purported fraud, Plaintiffs must plead that cause of action with specificity, sufficient to meet the heightened pleading requirements for fraud.

Unjust enrichment "is ' "a general principle, underlying various legal doctrines and remedies," ' rather than a remedy itself. [Citation.]" (Cameron v. Evans Securities Corp. (1931) 119 Cal.App. 164, 172; Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793 [also noting that unjust enrichment is "synonymous with restitution"].) As Cook appears to concede, " '[u]njust enrichment is not a cause of action.' It is 'just a restitution claim.' [Citation.]" (De Havilland v. FX Networks, LLC (2018) 21 Cal.App.5th 845, 870.) For these reasons, and because the demurrer to the fourth cause of action is directed only to a type of remedy, it "cannot rightfully be sustained...." (Kong, supra, 108 Cal.App.4th at p. 1047.)

Moreover, even if a pleading "prays for relief to which the [pleader] is not entitled, or fails to seek the proper relief," is it nevertheless good against a general demurrer "if it pleads facts sufficient to show that the pleader is entitled to some equitable relief." (Woodley v. Woodley (1941) 47 Cal.App.2d 188, 190-191; see also Moropoulos v. C.H. & O.B. Fuller Co. (1921) 186 Cal. 679, 688 ["the fact that Plaintiff has prayed for ... relief to which he may not be entitled does not affect the sufficiency of his complaint"].)

Apart from asserting that unjust enrichment is not a cause of action, the demurrer fails to show why a cause of action for financial abuse of an elder, or any other cause of action asserted in the SAC, does not support a restitution claim. For these and all further reasons discussed above, the Court will overrule the demurrer to the fourth cause of action for unjust enrichment on the grounds stated.

(4) Demurrer to the Fifth and Sixth Causes of Action

The fifth and sixth causes of action asserts claims for, respectively, conversion of the Real Property and of cash assets or money. The grounds for demurrer to those causes of action raised by Cook include that real property and money cannot be the subject of a conversion; that the SAC fails to allege facts showing that either Plaintiffs or McCartor have any ownership interest in the Real Property gifted to Cook; that the SAC fails to allege the amount of any money purportedly taken by Cook; and that the SAC fails to plead facts sufficient to state a fraud claim.

"Conversion is generally described as the wrongful exercise of dominion over the personal property of another. [Citation.] The basic elements of the tort are (1) the Plaintiff's ownership or right to possession of personal property; (2) the Defendant's disposition of the property in a manner that is inconsistent with the Plaintiff's property rights; and (3) resulting damages." (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) "Conversion is a strict liability tort. The foundation of the action rests neither in the knowledge nor the intent of the Defendant. Instead, the tort consists in the breach of an absolute duty; the act of conversion itself is tortious. Therefore, questions of the Defendant's good faith, lack of knowledge, and motive are ordinarily immaterial." (Burlesci v. Petersen (1998) 68 Cal.App.4th 1062, 1066.)

The fifth cause of action for conversion alleges: "[b]y means of misrepresentations and omissions made in and prior to April of 2024, [Cook] fraudulently and wrongfully induced Plaintiff to transfer to [Cook] [McCartor's] real property and her cash assets[]", and that as a result, McCartor was "denied the ability to sell her real property or access her cash...." (SAC, P.P. 35-36.) It can be reasonably inferred from those allegations that the cause of action for conversion arises from a disposition of McCartor's cash in a manner inconsistent with McCartor's rights, notwithstanding the title under which that cause of action is stated. (SAC at p. 6; see Quelimane Co. v.

Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 ["If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer."].)

The allegations of the SAC also show, expressly and by inference, that the cash assets of McCartor include money. "Money can be the subject of an action for conversion if a specific sum capable of identification is involved." (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 452.) The SAC expressly alleges that the money purportedly taken from McCartor by Cook totals $3 million. (SAC, P. 12.) For these and all further reasons discussed above, the SAC is, for pleading purposes, sufficient to show a disposition by Cook of the sum of $3 million of McCartor's money, in a manner inconsistent with McCartor's rights. (Shopoff & Cavallo LLP v. Hyon (2008) 167 Cal.App.4th 1489, 1507-1508 [general discussion].)

For these and all further reasons discussed above, and as Cook's knowledge, motivation, or intent are not material to Plaintiffs' conversion claim, the Court will overrule the demurrer to the fifth cause of action on the grounds stated. As to the demurrer to the sixth cause of action for conversion, the same reasoning and analysis apply. For the same reasons discussed above, the Court will overrule the demurrer to that cause of action on the grounds stated.

(5) Demurrer to the Seventh Cause of Action

As grounds for the demurrer to the seventh cause of action, Cook asserts that the SAC fails to allege any conduct constituting fraud; any statements purportedly made by Cook to Plaintiffs or McCartor; or any reliance by Plaintiffs or McCartor on any representations made by Cook. For these reasons, Cook argues, the SAC fails to allege facts to constitute a cause of action for theft by false pretenses.

"The crimes of larceny, embezzlement, obtaining money by false pretenses and kindred offenses are now all included under the designation of theft...." (People v. Jones (1950) 36 Cal.2d 373, 376-377; see also Bell v. Feibush (2013) 212 Cal.App.4th 1041, 1048 [general discussion].) Relevant here, "[a] theft ... on the theory of false pretenses requires ... that (1) the Defendant made a false pretense or representation to the owner of property; (2) with the intent to defraud the owner of that property; and (3) the owner transferred the property to the Defendant in reliance on the representation. [Citations.] [R]eliance means that the false representation 'materially influenced' the owner's decision to part with his property; it need not be the sole factor motivating the transfer. [Citation.]

A victim does not rely on a false representation if 'there is no causal connection shown between the [representations] alleged to be false' and the transfer of property." [Citations.]" (People v. Wooten (1996) 44 Cal.App.4th 1834, 1842-1843.)

Though the seventh cause of action generally asserts, in a conclusory fashion, that Cook defrauded or otherwise stole McCartor's money or property through false pretenses and misrepresentations (SAC, P. 45), wholly absent from the SAC are any allegations showing that Cook made any representations to the owner of any property at issue, or the conduct which constitutes the false pretense. In their opposition to the demurrer, Plaintiffs assert that Penal Code section 496 authorizes civil remedies, and that the underlying theft includes the obtaining by Cook of the deed to the Real Property and the funds at issue.

Though Penal Code section 496 authorizes a civil action for treble damages sustained by "[a]ny person who has been injured by a violation of subdivision (a) or (b)" (Pen. Code, Sec. 496, subd. (c)), Plaintiffs fail to explain why that statute does not require Plaintiffs to state facts sufficient to constitute a cause of action for theft by false pretenses.

As the SAC fails to assert any representation made by Cook to McCartor or Plaintiffs, or the conduct constituting the false pretense, the Court will sustain the demurrer to the seventh cause of action on the grounds stated. As the SAC does not necessarily show that it cannot be amended to allege a cause of action for theft by false pretenses, the Court will grant Plaintiffs leave to amend. (Eghtesad v. State Farm General Ins. Co. (2020) 51 Cal.App.5th 406, 411.)

(6) Demurrer to the Eighth Cause of Action

As a threshold matter, Cook asserts that Plaintiffs did not obtain leave to amend to add a new cause of action for false imprisonment, and that the eighth cause of action is not within the scope of the Court's order granting leave to amend. For these reasons, the demurrer argues, the eighth cause of action is improper.

A reasonable interpretation of the SAC shows that the allegations giving rise to the eighth cause of action for false imprisonment are the same or similar to those alleged in the original complaint and FAC as further discussed above. (See, e.g., SAC, P. 47.) Because the Court sustained the demurrer of Cook to the FAC on standing grounds and did not address the alternative or remaining grounds asserted on demurrer, the Court's order granting Plaintiffs leave to amend does not, under the circumstances present here, necessarily preclude Plaintiffs from adding a new cause of action arising from the same or effectively the same set of facts. (People v. Clausen (1967) 248 Cal.App.2d 770, 785-786 [general discussion].)

Furthermore, even if the Court were to assume without deciding that its prior order did not authorize Plaintiffs to add a cause of action for false imprisonment (and the Court makes no finding in this regard), the demurrer fails to explain why the addition by Plaintiffs of a new cause of action in the SAC is a proper ground for demurrer. (Code Civ. Proc., Sec. 430.10, subds. (a)-(h) [setting forth grounds for demurrer].)

Cook also contends that the SAC fails to allege the conduct by Cook which constitutes any false imprisonment, or where, when, or how Plaintiffs or McCartor were confined. For these reasons, Cook argues, the SAC fails to state facts sufficient to constitute a cause of action for false imprisonment. "Regarding the definition of false imprisonment, it is defined in the Penal Code as 'the unlawful violation of the personal liberty of another.' [Citation.] The Penal Code definition applies in both civil and criminal actions. [Citation.] 'The elements of a tortious claim of false imprisonment are: (1) the nonconsensual, intentional confinement of a person, (2) without lawful privilege, and (3) for an appreciable period of time, however brief.' [Citation.]

Although false imprisonment is an intentional tort because it entails an intentional act resulting in confinement, it can arise through negligence." (Lyons v. Fire Ins. Exchange (2008) 161 Cal.App.4th 880, 888.)

Though the SAC includes allegations describing the physical state in which McCartor was found by representatives from various agencies, those allegations are insufficient, by themselves, to show an intentional or negligent nonconsensual confinement of McCartor for an appreciable period of time. For these and all further reasons discussed above, the Court will sustain the demurrer to the eighth cause of action on the grounds stated, with leave to amend.

(7) Plaintiffs' Request for Judicial Notice

In support of their opposition to the demurrer, Plaintiffs request judicial notice of Cook's criminal arraignments and charge history. (RJN at p. 2, P. 1.) The matters of which Plaintiffs request judicial notice are not relevant to the issue of whether the SAC includes facts sufficient to constitute the causes of action further discussed above. (Evid. Code, Sec. 350; Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on other grounds in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.).

Furthermore, to the extent any arraignment or charge history is not alleged in the SAC, that material constitutes extrinsic matter which the Court does not consider on demurrer. (Executive Landscape Corp. v. San Vicente Country Villas IV Assn. (1983) 145 Cal.App.3d 496, 499-500 [also noting that the Court is precluded from weighing disputed facts].) Further, Plaintiffs' request for judicial notice of Cook's arraignments and charge history is intended to show that Cook engaged in a pattern of felony conduct identical in time, scope, and character to the allegations of the SAC. (RJN at p. 3, ll. 2-6.)

The Court may not take judicial notice of the truth of any facts asserted in those records. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1567-1568 [general discussion].) For these and all further reasons discussed above, the Court will deny Plaintiffs' request for judicial notice of the arraignments and charge history of Cook.

Tentative Ruling: PoloDonkey LLC v. Quiel Tentative Ruling: PoloDonkey LLC v. Quiel