Alicia M Martens vs. Roderick L. MacKenzie

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with

34-2023-00334325-CU-FR-GDS: Alicia M Martens vs. Roderick L. MacKenzie 07/08/2026 Hearing on Demurrer to Second Amended Complaint in Department 8D

a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.

***NOTICE: EFFECTIVE APRIL 13, 2026, THIS DEPARTMENT HAS MOVED TO THE TANI G. CANTIL-SAKAUYE COURTHOUSE LOCATED AT 500 G. ST. SACRAMENTO, CA. ALL MOTIONS NOTICED FOR DEPARTMENT 25 WILL BE HEARD IN DEPARTMENT 8D OF THE NEW COURTHOUSE. ALL PAPERS FOR THIS DEPARTMENT MUST BE FILED AT THIS NEW LOCATION AND WILL NOT BE ACCEPTED AT THE HALL OF JUSTICE. ALL HEARINGS WILL TAKE PLACE AT THIS NEW LOCATION****

TENTATIVE RULING

Defendant Roderick L. MacKenzie’s (“Defendant”) demurrer to plaintiff in pro per Alicia M. Martens’ (“Plaintiff”) Third Amended Complaint (“3AC”) is ruled upon as follows.

On November 7, 2024, this Court sustained Defendant’s demurrer to Plaintiff’s First Amended Complaint (“FAC”) and granted leave for Plaintiff to file a Second Amended Complaint (“2AC”). (Min. Order, Nov. 11, 2024.) On July 8, 2025, the Court sustained Defendant’s demurrer to Plaintiff’s 2AC with leave to file a “second amended complaint.” (Min. Order, July 8, 2025.) The Court presumably intended to grant Plaintiff leave to file her 3AC. Plaintiff subsequently filed her second “2AC” on July 24, 2025. The second “2AC” at issue in this demurrer is technically Plaintiff’s 3AC; therefore, the Court refers to this most recent version of Plaintiff’s Complaint as the 3AC.

Factual Background

This is an action for damages arising out of the creation and management of the Charles Valdes Revocable Living Trust (the “Trust”).

Plaintiff alleges she is the Successor Trustee, who was validated as such on March 10, 2015. (3AC at 3:3-6.) Upon her appointment as successor trustee to the Trust, Plaintiff learned that the Trust was devoid of funds. (3AC, ¶¶ 4, 5.) Plaintiff alleges Defendant and Plaintiff’s ex-husband, codefendant Daryl D. Martens (“Martens”, collectively “Defendants”) kept her from performing her duties for the five prior months, until March 10, 2015, during which time Defendants depleted over $40,000.00 from the relevant bank accounts; these funds were never reported to the Trust, nor made known to Plaintiff. (3AC at 3:5-10.)

Specifically, Plaintiff alleges Defendants prepared a promissory note, claiming it was devoid of funding and that Martens claimed to loan the Trust $2000, which was not reflected in fraudulent

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00334325-CU-FR-GDS: Alicia M Martens vs. Roderick L. MacKenzie 07/08/2026 Hearing on Demurrer to Second Amended Complaint in Department 8D

books for the Trust. (Id. ¶ 6.) Plaintiff alleges that Defendant’s conduct suggests that he was commingling funds intended for the Trust into his personal/business account. (Id. ¶ 7.) Plaintiff further alleges that Defendants’ conduct suggest they were misappropriating funds by depositing them in an account other than the Trust account and failing to turn over relevant documentation to Plaintiff. (Id. ¶¶ 8, 10.) Plaintiff alleges Defendant owed a fiduciary duty to her as a de facto trustee and breached that duty by failing to disclose material information and by misappropriating funds. (Id., ¶¶ 13-14.)

The 3AC further alleges Martens converted Plaintiff’s money by hiding a check due to Plaintiff for 6 years. (Id., ¶¶ 17-19.) Plaintiff alleges Defendant engaged in bank fraud by depleting funds from a bank account without authorization, and by forging checks in the name of Plaintiff. (3AC, ¶ 31.)

Based on the foregoing, the 3AC alleges six causes of action: (1) fraud; (2) breach of fiduciary duty; (3) conversion; (4) bank fraud; (5) fraudulent concealment; and (6) conspiracy to defraud and conceal. Defendant demurs to each cause of action on the grounds that each is barred by the statute of limitations on the face of the 3AC. Plaintiff opposes.

Legal Standard

The function of a demurrer is to test the sufficiency of the pleading it challenges by raising questions of law. (Salimi v. State Comp. Ins. Fund (1997) 54 Cal.App.4th 216, 219; Nordlinger v. Lynch (1990) 225 Cal.App.3d 1259, 1271.) A demurrer “tests the pleadings alone and not the evidence or other extrinsic matters.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “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 demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38-39; Bagatti v. Dept. of Rehabilitation (2002) 97 Cal.App.4th 344, 352.)

For the purpose of determining the effect of a complaint, its allegations are liberally construed, with a view toward substantial justice. (Code Civ. Proc. § 452; Amarel v. Connell (1988) 202 Cal.App.3d 137, 140-141; Quelimane Co., supra, 19 Cal.4th at 43, fn. 7.) In this respect, the Court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law, and considers matters which may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Poseidon Development, Inc. v.

Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-1112.) The Court treats as true not only the complaint’s material factual allegations, but also facts that may be implied or inferred from those expressly alleged. (Amarel, supra, 202 Cal.App.3d at 141.) “A court will not consider facts which have not been alleged in the complaint unless they may be reasonably inferred from the matters which have been pled or are proper subjects of judicial notice.” (Hall v. Great Western Bank (1991) 231 Cal.App.3d 713, 722, fn. 7.)

The Court is to give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Blank, supra, 39 Cal.3d at 318.) A demurrer may be sustained only if the complaint lacks any sufficient allegations to

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00334325-CU-FR-GDS: Alicia M Martens vs. Roderick L. MacKenzie 07/08/2026 Hearing on Demurrer to Second Amended Complaint in Department 8D

entitle the plaintiff to relief. (Financial Corp. of America v. Wilburn (1987) 189 Cal. App. 3d 764, 778.) “Plaintiff need only plead facts showing that he may be entitled to some relief, we are not concerned with plaintiff's possible inability or difficulty in proving the allegations of the complaint.” (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 696-697.)

Nonetheless, “[t]he plaintiff has the burden of showing that the facts pleaded are sufficient to establish every element of the cause of action.” (Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1031; see Sui v. Price (2011) 196 Cal.App.4th 933, 938.) “Allegations must be factual and specific, not vague or conclusionary.” (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43–44, internal citations omitted.)

Analysis

Defendant contends that Plaintiff’s first, fourth, fifth, and sixth causes of action are barred by the statute of limitations under Code of Civil Procedure section 338, subdivision (d). Defendant further contends that the second and third causes of action are barred by the statutes of limitations under Code of Civil Procedure sections 343 and 338, subdivision (c)(1), respectively.

In opposition, Plaintiff argues that Defendant failed to satisfy the meet-and-confer requirements for demurrer under Code of Civil Procedure section 430.31. Plaintiff also argues that she discovered Defendant’s involvement in the alleged fraud during 2021 during conversations with her ex-husband Martens and during her divorce trial in which an expert witness testified regarding the fraud allegedly carried out by Martens and Defendant. Plaintiff argues that the delayed discovery rule applies to her claims because she did not become aware of the alleged fraud until 2021.

Meet and Confer Efforts

The Court first addresses the parties’ meet-and-confer obligations under Code of Civil Procedure section 430.41. As Plaintiff correctly notes, the parties are required to meet and confer telephonically or in person. Defendant’s counsel’s declaration states that he did not satisfy the meet-and-confer requirements because the Court has sustained the two previous demurrers on identical grounds and that any further meet-and-confer efforts would be fruitless. (Borg Decl., 1:23-2:2.) This does not comply with Code of Civil Procedure section 430.41. While the Court could continue this motion and require the parties to engage in compliant meet-and-confer efforts, the Court does not find such efforts would be productive based on the prior demurrers on the same grounds. Therefore, the Court considers the demurrer on the merits.

The Court notes that, in the future, Defendant shall attempt to engage in meet and confer efforts as required by the Code of Civil Procedure, even if he believes it to be “fruitless.” Failure to engage in meet and confer efforts may result in continuation of or dropping of the motion until such efforts have been sufficiently made.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00334325-CU-FR-GDS: Alicia M Martens vs. Roderick L. MacKenzie 07/08/2026 Hearing on Demurrer to Second Amended Complaint in Department 8D

Statute of Limitations

“The defense of statute of limitations may be asserted by general demurrer if the complaint shows on its face that the statute bars the action.” (E-Fab, Inc. v. Accountants, Inc. Serv. (2007) 153 Cal.App.4th 1308, 1315-1316.) “An action for relief on the ground of fraud or mistake” must be brought within three years of accrual. (Code Civ. Proc., § 338, subd. (d).) This includes claims of breach of fiduciary duty where, as here, the gravamen of the claim is deceit. (See Fuller v. First Franklin Financial Corp., 216 Cal.App.4th 955, 963.) “The cause of action in that case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.” (Code Civ.

Proc., §338, subd. (d).) “[I]f an action is brought more than three years after commission of the fraud, plaintiff has the burden of pleading and proving that he did not make the discovery until within three years prior to the filing of his complaint.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1472; see also Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1192 [“The doctrine of fraudulent concealment tolls the statute of limitations where a defendant, through deceptive conduct, has caused a claim to grow stale”].)

As the Cansino Court explained:

Because the discovery rule operates as an exception to the statute of limitations, “if an action is brought more than three years after commission of the fraud, plaintiff has the burden of pleading and proving that he did not make the discovery until within three years prior to the filing of his complaint.” (Hobart v. Hobart Estate Co. (1945) 26 Cal.2d 412, 437, 159 P.2d 958 (Hobart).) To excuse failure to discover the fraud within three years after its commission, a plaintiff also must plead “facts showing that he was not negligent in failing to make the discovery sooner and that he had no actual or presumptive knowledge of facts sufficient to put him on inquiry.” (Ibid.; Johnson v.

Ehrgott (1934) 1 Cal.2d 136, 137, 34 P.2d 144.) To that end, a plaintiff must allege facts showing “the time and surrounding circumstances of the discovery and what the discovery was.” (Hobart at p. 441, 159 P.2d 958.) Conclusory allegations will not withstand a demurrer. (Fox, supra, 35 Cal.4th at p. 808, 27 Cal.Rptr.3d 661, 110 P.3d 914.) The discovery related facts should be pleaded in detail to allow the court to determine whether the fraud should have been discovered sooner. (Davis v. Rite–Lite Sales Co. (1937) 8 Cal.2d 675, 681, 67 P.2d 1039.)

(Cansino v. Bank of America, supra, 224 Cal.App.4th at p. 1472 (emphasis added).)

In her 3AC, Plaintiff largely reiterates the allegations made in her 2AC; namely, that Defendant was verified in the role of Successor Trustee in March 2015 and that, in the five months prior,

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00334325-CU-FR-GDS: Alicia M Martens vs. Roderick L. MacKenzie 07/08/2026 Hearing on Demurrer to Second Amended Complaint in Department 8D

Defendant allegedly carried out actions in conflict with the terms of the Trust. (See 3AC, ¶ 4.) These alleged actions include, among others, commingling funds from the Trust into Defendant’s personal/business account based on billing statements dated as late as April 2016. (Id. at ¶ 7.) Based on the facts alleged in the 3AC, the last wrongful act occurred in April 2016. Thus, Plaintiff had three years from April 2016 (i.e., April 2019) to file her Complaint and bears the burden of pleading and proving that she did not make the discovery until within three years of filing her Complaint.

The Court previously sustained Defendant’s demurrer on these grounds, finding that Plaintiff’s claims were barred by the respective statutes of limitations. Specifically, the Court found:

Here, Plaintiff alleges she became aware of her claims on June 15, 2021 when an expert witness discovered the cashier’s check Defendant Martens hid in a picture frame of his stepdaughter for six years. (SAC, p. 13:11-15.) However, the claims against [Defendant] are not based on Defendant Martens’ action in converting a cashier’s check for six years. Rather, the SAC alleges [Defendant] provided fraudulent books to Plaintiff when she became successor trustee in 2014, made deposits to his own accounts in April 2016, and depleted money from bank accounts. (SAC, pp. 2:18-22, 7:9-24.)

Based on Plaintiff’s own description of the various exhibits attached to the SAC, other than Defendant Marten’s [sic] concealment of the cashier’s check, the last wrongful act occurred on May 10, 2016. (SAC, Table of Contents by Date / Event, pp. 6-7.) Plaintiff fails to allege facts explaining why Plaintiff could not have discovered [Defendant’s] alleged actions before the discovery of the concealed cashier’s check. Plaintiff has therefore failed to allege sufficient facts to support application of the discovery rule.

(Min. Order, July 8, 2025.)

In her 3AC, Plaintiff still does not allege facts explaining why she could not have discovered Defendant’s action before the discovery of the check. Rather, Plaintiff’s 3AC purports to “expand upon the prior allegations, incorporating newly discovered facts and legal theories that arose from the defendants [sic] concealment of information ” (3AC, p. 3.) The only new allegations that appear relevant to her delayed discovery of Defendant’s alleged fraud appear in her cause of action for “bank fraud,” wherein Plaintiff alleges that, during her divorce trial, an expert handwriting analyst presented findings that Martens forged checks in Plaintiff’s name and that Defendant should have known of such forgery because Defendant’s wife audited the Trust’s accounts. (Id. at ¶ 34.)

Plaintiff alleges she did not know of the forgery prior to such time. (See ibid.) Plaintiff fails to state the date of her divorce trial, but based on other information in the 3AC and prior filings, the Court presumes that it took place in June 2021.

However, even if the Court were to accept that Plaintiff first learned of Defendant’s alleged fraud

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00334325-CU-FR-GDS: Alicia M Martens vs. Roderick L. MacKenzie 07/08/2026 Hearing on Demurrer to Second Amended Complaint in Department 8D

during in June 2021, a plaintiff must also plead facts showing that they were not negligent in failing to make the discovery sooner, and that they had no actual or presumptive knowledge of facts sufficient to put them on inquiry. (See Cansino v. Bank of America, supra, 224 Cal.App.4th at p. 1472.) Plaintiff fails to allege such facts in her 3AC and instead sets forth conclusory statements of Defendant’s alleged fraudulent concealment.

Plaintiff has also alleged two new causes of action for fraudulent concealment and conspiracy to defraud and conceal; however, Plaintiff alleges no new facts therein and instead recites conclusions of law and legal citations regarding alleged concealment. For example, while Plaintiff alleges that Defendant “manipulate[d] her, deflect[ed] suspicion and maintain[ed] control over the stolen assets” (3AC at p. 20:4-10), Plaintiff does not allege specific facts regarding how this was done, when it was discovered, and what conduct had been undertaken that shows Plaintiff was not negligent.

Likewise, while Plaintiff alleges that several letters were addressed to a “remote [P.O.] box” in Carmichael, California, Plaintiff does not connect how this relates to concealment or delayed discovery, including a lack of facts regarding when this was discovered. Therefore, the Court finds Plaintiff has failed to allege sufficient facts to support application of the discovery rule.

Although this is the third time a demurrer has been sustained on these grounds, Plaintiff filed her 1AC as a matter of right pursuant to Code of Civil Procedure section 472. The Court therefore may allow Plaintiff to file a Fourth Amended Complaint (“4AC”) pursuant to Code of Civil Procedure section 430.31, subdivision (e)(1). The Court cautions that further amendment may not be granted in response to a demurrer “absent an offer” of additional facts to be pleaded showing a reasonable possibility the defect can be cured. The Court notes that Plaintiff asserts arguments (and potential allegations) in her opposition that are not included in the 3AC.

Disposition

Defendant’s demurrer is SUSTAINED as to all causes of action asserted against Defendant in the 3AC with leave to amend.

Plaintiff may file a 4AC on or before July 28, 2026. Although not required by statute or court rule, Plaintiff is directed to present the clerk a copy of this ruling at the time of filing the Fourth Amended Complaint. Defendant may file and serve a response within 30 days of service of the First Amended Complaint, 35 days if served by mail.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; Cal. Rules of Court, rule 3.1312.)