MARC REVETTA AS A BENEFICIARY AND AS THE SUCCESSOR TRUSTEE OF BEHALF OF THE REVETTA FAMILY TRUST DATED DECEMBER 16, 2020 VS. FREDRICKSON

Defendant Christine Fredrickson’s Demurrer to the second and third causes of action alleged by Plaintiffs in their Complaint is OVERRULED.

Second Cause of Action for Financial Elder Abuse: Defendant contends the second cause of action fails because (1) Plaintiffs lack standing to bring a cause of action for financial elder abuse; (2) Plaintiffs have filed two separate lawsuits that cover the same primary right, and (3) probate court has exclusive jurisdiction over the claim.

First, Defendant argues that Plaintiffs lack standing to bring a cause of action for financial elder abuse because Decedent and Defendant were domestic partners and Plaintiffs cannot prosecute a financial abuse cause of action based on a challenge to the domestic partnership. The Complaint does not seek to dissolve or adjudicate the domestic partnership but alleges that Defendant’s filing of a domestic partnership itself was a wrongful act undertaken by caregiver to obtain property from a dependent adult. Specifically, the Complaint alleges that “after Caregiver Fredrickson asked M. Revetta if Russ Revetta should be placed in hospice, Caregiver Fredrickson prepared a ‘domestic partnership’ and filed it with the California Secretary of State, representing that she and Russ Revetta were ‘domestic partners.’ ” (Complaint, ¶ 30.) The Complaint further alleges that “Caregiver Fredrickson’s action in filing a ‘domestic partnership’ violates Probation Code section 21380, subdivision (a)(4), constitutes a fraud on dependent adult R. Revetta and his family, and was filed for the sole purpose of avoiding the presumption of fraud and undue influence of caregivers who become a beneficiary of their client’s estate as set forth in Probate Code section 21380. Caregiver Fredrickson’s attempt to amend the Revetta Family Trust dated December 16, 2020 to provide that she was to be given 25% of R. Revetta’s $1.3 Million dollar estate which equates to $325,000 and then file a ‘domestic partnership’ in an attempt to convert her from ‘Caregiver’ of R. Revetta for 10 years to the ‘Spouse’ of R. Revetta violates the law, is fraudulent and the kind of despicable, unconscionable misconduct that warrants punitive damages.” (Complaint, ¶ 32.) Therefore, Plaintiffs have standing to allege the second cause of action.

Second, Defendant argues the Financial Elder Abuse cause of action involves the same primary right as Defendant’s Probate Petition to Compel Redress for Breach of Fiduciary Duty (“Probate Petition”) and is therefore subject to abatement. “The primary right theory is a theory of code pleading that has long been followed in California. It provides that a ‘cause of action’ is comprised of a ‘primary right’ of the plaintiff, a corresponding ‘primary duty’ of the defendant, and a wrongful act by the defendant constituting a breach of that duty. [Citation.] The most salient characteristic of a primary right is that it is indivisible: the violation of a single primary right gives rise to but a single cause of action. [Citation.] A pleading that states the violation of one primary right in two causes of action contravenes the rule against ‘splitting’ a cause of action. [Citation.]” (Crowley v. Katleman (1994) 8 Cal.4th 666, 681 (Crowley).)

“The primary right theory has a fairly narrow field of application. It is invoked most often when a plaintiff attempts to divide a primary right and enforce it in two suits. The theory prevents this result by either of two means: (1) if the first suit is still pending when the second is filed, the defendant in the second suit may plead that fact in abatement [citations]; or (2) if the first suit has terminated in a judgment on the merits adverse to the plaintiff, the defendant in the second suit may set up that judgment as a bar under the principles of res judicata [citation.] (Crowley, supra, 8 Cal.4th at p. 682.)

The primary right invaded is not the same in probate action as the instant action. The Probate Petition seeks to vindicate the trust’s property rights and seeks a determination of the validity of the purported amendment; removal of Defendant from control of trust assets; and an accounting and restitution of trust property. (Complaint, ¶ 45, Ex. W.) The elder abuse claim in this case seeks to vindicate personal rights to be free of financial abuse and neglect.

Lastly, Defendant contends that probate court has exclusive jurisdiction over the claim. However, Newman v. Casey (2024) 99 Cal.App.5th 359, 383, fn. 15, states, “A cause of action for elder abuse under the Act can be asserted in a civil complaint [citations] or in a petition in a probate proceeding [citations.]”

Therefore, the demurrer to the second cause of action is OVERRULED.

Third Cause of Action for Breach of Fiduciary Duty:

The elements of a cause of action for breach of fiduciary duty are the existence of a fiduciary relationship, breach of fiduciary duty, and damages. (Oasis W. Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.)

Defendant argues that “[f]or the reasons stated as to the objection to the second cause of action apply to this cause of action.” (Demurrer, 7:10-11.) Since the court overrules Defendant’s demurrer to the second cause of action, the demurrer to the third cause of action this ground is also OVERRULED. Further, the Complaint sufficiently alleges a cause of action for breach of fiduciary duty. The Complaint alleges by virtue of Defendant’s “position of a full-time live-in certified caregiver for R. Revetta, who also handled R. Revetta’s finances with rega rd to writing checks from his account to pay her salary and other expenses needed to fullfill her employment, [Defendant] owed R. Revetta a fiduciary duty to exercise due care and undivided loyalty in R. Revetta.” (Complaint, ¶ 82.) Defendant breached the duty by attempting to amend the Revetta Family Trust dated December 16, 2020 to give herself a gift of $325,000 from R. Revetta’s estate and filed a domestic partnership with the Secretary of State representing she was R. Revetta’s domestic partner. (Compl aint, ¶83.) As to damages, the Complaint alleges that by virtue of Defendant’s fraudulent amendment and fraudulent domestic partnership she has ceased all of the assets in the Revetta Family Trust dated December 16, 2020 and is using them for her own benefit. (Complaint, ¶ 44.)

Therefore, the demurrer to the third cause of action is OVERRULED.

2. MOTION TO STRIKE PORTIONS OF COMPLAINT

Defendant Christine Fredrickson’s motion to strike portions of the Complaint filed by Plaintiffs is DENIED.

Defendant moves to strike Plaintiffs request for punitive damages on the grounds Plaintiffs have not sufficiently pleaded that Defendant was guilty of oppression, fraud or malice as required by Civil Code section 3294.

Civil Code Section 3294, subdivision (a) provides for punitive damages: “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”

Section 3294, subdivision (c) defines malice, oppression and fraud as follows: “(1) ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. [¶] (2) ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. [¶] (3) ‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”

The Complaint alleges that Defendant held herself out as, and functioned as, Decedent’s long-term, live-in caregiver for more than a decade, while knowing he suffered from dementia, Alzheimer’s disease, paraplegia, and required maximum assistance. (Complaint, ¶¶ 3–4, 7, 10, 15.) Defendant exercised control over Decedent’s daily care, medical access, medications, hygiene, finances, and living environment. (Complaint, ¶¶ 14–16, 17–21.) Defendant failed to regularly change Decedent’s diapers and catheter, changing him only once per day, closed his bedroom door overnight so he could not obtain help, recklessly consumed alcohol while acting as his caregiver, and ignored repeated warning signs of infection, hallucinations, blood in his catheter, and declining condition. (Complaint, ¶¶ 29, 33–36, 40–42, 52–53, 75.) Plaintiffs allege that Defendant knew sepsis could kill Decedent yet consciously disregarded these risks, resulting in sepsis shock and death. (Complaint. ¶¶ 29, 40–41.) Further, the Complaint alleges Defendant secretly attempted to amend the Revetta Family Trust to give herself $325,000 and filed a false domestic partnership to evade statutory presumptions of fraud and undue influence applicable to caregivers. (Complaint, ¶¶ 24–32, 43–46, 59–66.)

These allegations are sufficient to allege punitive damages. Therefore, the Motion is DENIED.