Kelley Roberts vs. Rehana Harborth

34-2022-00319058-CU-MC-GDS: Kelley Roberts vs. Rehana Harborth 04/12/2024 Hearing on Demurrer in Department 54

Tentative Ruling

NOTICE:

PLEASE TAKE NOTICE that pursuant to “Public Notice – Civil Division Expansion of Law and Motion Calendar” any oral arguments regarding this tentative ruling will be heard in Department 31, located at 720 9th Street, Sacramento, CA, the Hon. Steven M. Gevercer presiding, at 10:00 a.m. Should argument be requested by either party, the requesting party must call the Law and Motion Oral Argument Request Line at (916) 874-2615, request the hearing, and notify the opposing party of the location and time of hearing pursuant to Local Rule 1.06.

The Court encourages parties to appear remotely for the hearing on the tentative ruling through the Court’s Zoom Application. But, any party wishing to appear in person may do so, provided that party notifies the Court by 4:00 the Court day before the hearing.

The parties may join the Zoom session for hearing on the tentative ruling by audio and/or video through the following link:

https://saccourt-ca-gov.zoomgov.com/my/sscdept31

SIP Address:

16083459993@sip.zoomgov.com

(833) 568-8864

ID: 16083459993

Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court-Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-13.Pdf

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.

34-2022-00319058-CU-MC-GDS: Kelley Roberts vs. Rehana Harborth 04/12/2024 Hearing on Demurrer in Department 54

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 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 be forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING:

Plaintiff/Cross-Defendant Kelley Roberts’ (“Roberts”) demurrer to Defendant/Cross- Plaintiff Rehana Harborth’s (“Harborth”) Second Amended Verified Cross-Complaint (“SACC”) is UNOPPOSED and SUSTAINED without leave to amend as follows.

Roberts initiated this action on April 28, 2022. The Complaint alleges five causes of action: (1) financial abuse of an elder; (2) fraud; (3) breach of fiduciary duty; (4) imposition of constructive trust; and (5) slander of title. Roberts alleges that Harborth provided services to Roberts’ father as his care custodian until his death, and during that time manipulated him into executing a trust that purported to transfer most of his estate to Harborth upon his death.

Harborth filed her initial Cross-Complaint on June 21, 2022. The Cross-Complaint alleged three causes of action: (1) to contest the validity of trust amendment; (2) elder abuse; and (3) intentional interference with an expected inheritance. Harborth filed an Amended Cross-Complaint on September 20, 2022, which alleged the same three causes of action.

Roberts demurred to the Amended Cross-Complaint, and that demurrer was unopposed and sustained with leave to amend on June 13, 2023.

Harborth filed the operative SACC on June 27, 2023. The SACC alleges a single cause of action for “Contest Validity of Trust for Undue Influence.”

Roberts now demurs to the SACC on the grounds that it is barred by the applicable statute of limitations and is barred by the Probate Court’s August 9, 2023 Judgment after Trial in Case No. 34-2021-00299094. (See Ex. 5 to Roberts’ Req. for Judicial Notice[1] ISO Demurrer.)

Roberts’ demurrer is unopposed and sustained for the reasons stated in the moving papers. The Court construes Harborth’s lack of opposition as a concession on the merits. (See D.I. Chadbourne, Inc. v. Super. Ct. (1964) 60 Cal.2d 723, 728, fn. 4 [where nonmoving party fails to oppose a ground for a motion “it is assumed that [nonmoving

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00319058-CU-MC-GDS: Kelley Roberts vs. Rehana Harborth 04/12/2024 Hearing on Demurrer in Department 54

party] concedes” that ground].) Moreover, the Court does not furnish legal arguments for a party. (See KCSFV I, LLC v. Florin County Water Dist. (2021) 64 Cal.App.5th 1015, 1031; Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862.)

Further, leave to amend is denied as Harborth has failed to demonstrate she can cure the stated defects. (See Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43 [stating the opposing party “bears the burden of proving there is a reasonable possibility exists that amendment may cure the defect”]; Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [in deciding whether to grant leave to amend in sustaining a demurrer the court “decide[s] whether there is a reasonable possibility that the defect can be cured by amendment”].)

Roberts’ counsel shall prepare an order pursuant to California Rules of Court, rule 3.1312.

[1] Roberts’ request for judicial notice filed in support of the demurrer is unopposed and granted.