MOTION TO DISMISS
Respondents are directed to give notice.
Vaupel – Trust MOTION TO DISMISS (2022 – 01298653) Respondent Lynda Roese-Vaupel’s Motion to Dismiss Amended Petition for Claim and Issue Preclusion (ROA 399) is DENIED.
Respondent’s Request for Judicial Notice (ROA 37) is GRANTED.
By her motion, Respondent asks this court to dismiss the Amended Petition (Amended Petition) filed by Petitioner Michael P. Vaupel on January 29, 2026 (ROA 391) on the ground the Amended Petition seeks to relitigate issues and claims already decided against Petitioner in the court’s Final Decision (ROA 339) on an earlier petition (ROA 36) and is barred by the doctrines of claim and issue preclusion.
Nature of the motion. Respondent does not identify the statutory provision authorizing the procedural vehicle of a motion to dismiss. The only Probate Code provisions authorizing motions to dismiss are section 2033—allowing a party to bring a motion to dismiss a petition for conservatorship when “the proposed is a member of an Indian tribe with jurisdiction”—and section 4543—allowing a party to move to dismiss an action concerning powers of attorney, when the proceeding “is not reasonably necessary for the protection of the interests of the principal or the principal’s estate.” Neither section is applicable here.
Motions to dismiss are also authorized in certain types of civil proceedings (and probate proceedings are, in part, subject to the subject to the Code of Civil Procedure, see Probate Code, § 1000). Motions to dismiss in civil proceedings include motions to dismiss for lack of jurisdiction (Code of Civ. Proc., § 410.30) or motions to dismiss for failure to prosecute (Code of Civ. Proc., §§ 583.110 et seq.). Respondent’s motion does not fall within either statute.
Respondent’s motion to dismiss is brought on the grounds of claim and issue preclusion—grounds that can be raised by demurrer, a motion for judgment on the pleadings, or a motion for summary judgment. Because the motion fails to meet the procedural requirements for either a demurrer or a motion for summary judgment, the court deems it a motion for judgment on the pleadings and addresses it as such.
“Judgment on the pleadings is akin to a demurrer and is properly granted only if the [pleading] does not state facts sufficient to state a cause of action against that [respondent]. The grounds for the motion must appear on the face of the [pleading], and in any matter subject to judicial notice. The court accepts as true all material factual allegations, giving them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts.” (
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Brief relevant procedural history. On August 22, 2023, Petitioner filed a petition for recovery of property from Respondent (850 Petition). The 850 Petition also sought removal of Respondent as co-trustee of the Michael C. Vaupel Trust dated March 6, 2007 as amended and restated (Trust). The 850 Petition alleged Respondent wrongfully transferred or withdrew Trust funds from certain accounts between May 11, 2022 and December 13, 2022. (ROA 239 at 2:17-5:12.) The 850 Petition, as supplemented, was tried on May 21, 22, & 27, 2025.
The court issued a final decision on July 2, 2025. The court ruled Respondent breached her duties as trustee of the Trust in various ways. The court found Respondent’s withdrawal of $406,428.24 of Trust funds between August 8, 2022 and December 14, 2022 was a breach of her fiduciary duties. However, the court found Petitioner could not pursue claims on Respondent’s withdrawals before the settlor’s death on August 4, 2022 because Petitioner had not alleged the settlor lacked capacity or was subjected to undue influence. (“Neither Settlor’s lack of capacity nor undue influence are alleged in the 850 Petition (ROA 239), or Petitioner’s Trial Brief (ROA 289).
Nor were they argued in closing arguments.” (ROA 339 at 8:23- 25.) In the absence of such allegations, Respondent’s only duty was to the settlor and Petitioner could not pursue a claim of breach of any fiduciary duty.
On January 29, 2026, Petitioner filed an “Amended Petition for: [¶] (A) Order Compelling Lynda Roese-Vaupel to Redress Breaches of Trust; and [¶] (2) Recovery of Property Wrongfully Transferred” (Amended Petition). The designation of an “amended” petition is confusing because the 850 Petition had been tried and decided and there was no other petition to be amended. Despite the confusing title, the Amended Petition asserts separate wrongdoing by Respondent, specifically the sale of seven commercial properties and retention of the sales proceeds, including through transfers from and deposits certain bank accounts. The Amended Petition also alleges allegedly wrongful transfers distinct from those alleged in the 850 Petition. (ROA at 4:12-12:28.)
Motion for judgment on the pleadings. Respondent tacitly concedes most if not all of the specific acts of wrongdoing alleged in Amended Petition are distinct from those alleged in the 850 Petition. She argues, however, that the judgment on the 850 Petition bars Petitioner from pursuing the claims in the Amended Petition under the doctrines of claim preclusion and issue preclusion. Respondent has the burden on these arguments. (Hong Sang Market, Inc. v. Peng (2018) 20 Cal.App.5th 474, 489 [the “party who asserts claim or issue preclusion as a bar to further litigation bears the burden of proving that the requirements of the doctrine are satisfied”].)
Claim Preclusion. “Claim preclusion prevents relitigation of entire causes of action. [Citation.] Claim preclusion applies only when ‘a second suit involves (1) the same cause of action (2) between the same parties [or their privies] (3) after a final judgment on the merits in the first suit.’” (Samara v. Matar (2018) 5 Cal.5th 322, 326–327.) Based solely on the Final Decision on the 850 Petition, Respondent argues the Amended Petition, which raises different alleged wrongdoing and alleges new claims of lack of capacity and undue influence, is barred under the doctrine of claim preclusion.
The first requirement for application of claim preclusion is that the second claim addresses the same cause of action as the first. A "cause of action is the right to obtain redress for a harm suffered, regardless of the specific remedy sought or the legal theory (common law or statutory) advanced.” (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 798, internal quotation marks and citations omitted
Under this theory, a ‘cause of action’ is comprised of a primary right possessed by the plaintiff, a corresponding duty imposed upon the defendant, and a wrong done by the defendant which is a breach of such primary right and duty. The primary right is the plaintiff’s right to be free of the particular injury, regardless of the legal theory on which liability is premised or the remedy which is sought. Thus, it is the harm suffered that is the significant factor in defining the primary right at issue.” (City of Oakland v.
Oakland Policy & Fire Retirement System (2014) 224 Cal.App.4th 210, 228; see Cal. Sierra Development, Inc. v. George Reed, Inc. (2017) 14 Cal.App.5th 663, 675-676 [“California law approaches the issue by focusing on the ‘primary right’ at stake: if two actions involve the same injury to the plaintiff and the same wrong by the defendant then the same primary right is at stake even if in the second suit the plaintiff pleads different theories of recovery, seeks different forms of relief and/or adds new facts supporting recovery”].)
While the type of wrongdoing alleged in the 850 Petition and the Amended Petition are similar, i.e. breach of fiduciary duty, the two petitions do not assert either the same wrongs or the same injuries. Looking, as the court must, only to the allegations of the Amended Petition and the documents judicially noticed in connection with the motion, Respondent has not met her burden as to claim preclusion and the motion for judgment on the pleadings is DENIED on that ground.
Issue Preclusion. The doctrine of issue preclusion applies “(1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party.” (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 825.) “[A]n issue was actually litigated in a prior proceeding if it was properly raised, submitted for determination, and determined in that proceeding. The ‘identical issue’ requirement addresses whether identical factual allegations are at stake in the two proceedings, not whether the ultimate issues or dispositions are the same.
And the ‘necessarily decided’ prong means only that the issue not have been “entirely unnecessary” to the judgment in the initial proceeding. In considering whether these criteria have been met, courts look carefully at the entire record from the prior proceeding, including the pleadings, the evidence, the jury instructions, and any special jury findings or verdicts.” (In re Marriage of Brubaker & Strum (2021) 73 Cal.App.5th 525, 537- 538, internal citations and quotation marks omitted; see also Ayala v.
Dawson (2017) 13 Cal.App.5th 1319, 1326-1327 [“‘the pleadings and proof in each case must be carefully scrutinized to determine whether a particular issue was raised even though some legal theory, argument or “matter” relating to the issue was not expressly mentioned or asserted’”].) “[T]he offensive use of collateral estoppel is more closely scrutinized than the defensive use of the doctrine.” (White Motor Corp. v. Teresniski (1989) 214 Cal.App.3d 754 763.) Respondent did not provide the court with the trial transcript, so the court cannot “carefully look” at the entire record as required.
Further, two of the four elements essential to imposition of the doctrine of issue preclusion are not present. First, the Amended Petition and the 850 Petition do not raise identical issues because the factual allegations are distinct. (DKN Holdings LLC v. Faeber (2015) 61 Cal.4th 813, 824 [“‘The “identical issue” requirement addresses whether “identical factual allegations” are at stake in the two proceedings, not whether the ultimate issues or dispositions are the same”’”]; see Chern v. Bank of America (1976) 15 Cal.3d 866, 871–872 [“‘[I]f the very same facts and no others are involved in the second case, . . . the prior judgment will be conclusive as to the same legal issues which appear. . . . But if the relevant facts in the two cases are separable, even though they may be similar or identical, [issue preclusion] does not govern the legal issues which recur in the second case’”].)
Second, the issue of the settlor’s lack of capacity and the claim of undue influence were not “actually litigated” in connection with the 850 Petition. “‘Whether an issue was actually litigated in a prior action ... is generally determined by ascertaining whether the parties to the original action disputed the issue and whether that issue subsequently was resolved by the court entertaining the action.’” (Hardy v. America’s Best Home Loans (2014) 232 Cal.App.4th 795, 806.) Here, the issues of lack of capacity and undue influence were not even “alleged in the 850 Petition, or Petitioner’s Trial Brief.” (ROA 339 at 8:23-25.)
Looking, as the court must, only to the allegations of the Amended Petition and the documents judicially noticed in connection with the motion, Respondent has not met her burden as to issue preclusion and the motion for judgment on the pleadings is DENIED on that ground.
Petitioner is directed to give notice.