Rutherford - Trust

clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.”] (Coalition for an Equitable Westlake/MacArthur Park v. City of Los Angeles (2020) 47 Cal.App.5th 368, 376, internal quotation marks and citations omitted.)

Amy suggests the court should decide the issue as a matter of law. It cannot. First, the notice is not attached to the Petition, so it is outside the Petition and is not subject to judicial notice (which was not requested). Second, the Petition alleges the notice was defective because it did not set forth certain statutory language required by Probate Code section 16061.7 (h). If that allegation is correct, the notice was deficient. The Demurrer is OVERRULED and the MJOP is DENIED on the time-bar grounds.

The demurrer is OVERRULED. The MJOP is DENIED. The associated motion for attorney fees and costs is also DENIED.

Tricia is directed to give notice.

5 Rutherford - Trust; 30-2025-01532759 Rutherford – Trust (2025-01532759) #5 Demurrer & Motion to Strike

Respondent John M. Rutherford’s Demurrer (ROA 9) is OVERRULED in part and SUSTAINED in part as set forth below.

Respondent John M. Rutherford’s Motion to Strike (ROA 10) is DENIED.

I. PETITION

This proceeding arises out of a family trust created by settlors John R. Rutherford and Mona Lee Rutherford on March 21, 2001 (Trust). John Rutherford passed away on August 30, 2011. Mona Lee Rutherford passed away on October 6, 2024. Upon Mona’s passing, the settlors’ children, Petitioner Robin Lee Nesteruk and Respondent John M. Rutherford, became acting successor co- trustees of the Trust. Under the terms of the Trust, Petitioner and Respondent were to receive equal distributions of Trust Assets.

On December 12, 2025, Petitioner filed her petition, which asserts the Trust requires the cotrustees to act unanimously on Trust matters but Respondent has refused to cooperate with Petitioner and, without Petitioner’s knowledge or involvement, marketed three properties belonging to the Trust (the Nevada Properties) and was in the process of having them sold. The Petition alleges Respondent signed a purchase and sale agreement to sell the Nevada Properties for $4,150,000 but Petitioner learned of the sale from the escrow company and was able to stop the sale before it occurred.

Based on that conduct as well as other alleged wrongdoing including Respondent’s refusal to: (i) co-administer the trust; (ii) inventory and distribute personal the personal property belonging to the Trust; (iii) sell a Trust property located in Corona, California; and (iv) pay Trust related costs including property taxes, Petitioner seeks an order removing or suspending Respondent as trustee and alleges claims of breach of trust, breach of fiduciary duty, and fraud.

II. DEMURRER

Respondent demurs to the third cause of action for breach of trust, fourth cause of action for breach of fiduciary duty, and fifth cause of action for fraud on the grounds that each cause of action fails to state sufficient facts and is uncertain.

Respondent argues the third cause of action for breach of trust and fourth cause of action for breach of fiduciary duty fail to state a claim because they seek damages of at least $4,150,000 (apparently representing the sale price Respondent had agreed to for the Nevada Properties). Respondent argues that the damages are speculative and do not represent an actual loss because Petitioner was able to stop the sale.

“‘It is not the ordinary function of a demurrer to test the truth of the plaintiff’s allegations or the accuracy with which he describes the defendant's conduct. A demurrer tests only the legal sufficiency of the pleading. [Citation.]’ [Citation.] In reviewing the ruling on a demurrer, ‘the question of plaintiff's ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court [citations]. . . .’ [Citation.] ‘To survive a demurrer,

the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged. [Citation.]’” (Ferrick v. Santa Clara University (2014) 231 Cal.App.4th 1337, 1341.) A complaint “is sufficient if it alleges ultimate rather than evidentiary facts.” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “Ultimate facts are those ‘on which liability depends,’ as distinguished from both the evidence proving those facts [citation] and conclusions of law.” (Estes v.

Eaton Corp. (2020) 51 Cal.App.5th 636, 643, fn. 2.) In other words, California operates under notice pleading standards. (Morris v. JPMorgan Chase Bank, NA (2022) 78 Cal.App.5th 279, 304, fn. 14.) This is, in part, because ambiguities in a pleading “can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) In other words, a cause of action is sufficiently stated if it asserts the required elements of the claim.

Breach of trust and breach of fiduciary duty claims each rely upon allegations of duty, breach, and damages. Petitioner alleges Respondent is a trustee and she is a beneficiary. A trustee has fiduciary duties to manage a trust for the benefit of the beneficiaries. (Moeller v. Superior Court (1997) 16 Cal.4th 1124, 1133–1134.) “If the trustee violates any duty owed to the beneficiaries, the trustee is liable for breach of trust.” (Id. at p. 1134; Prob. Code, § 16400.) Petitioner alleges Respondent violated his duty as a trustee (arranging for the sale of the Nevada Properties without informing Petitioner, refusing to co-administer the trust, etc.).

Finally, she alleges damages resulting from violation (payment of bills for the Corona property, etc.) The petition sufficiently states a claim for breach of trust. The breach of fiduciary duty claim relies on the same factual allegations. Petitioner alleges a fiduciary duty (the duty of a trustee), a breach (arranging for the sale of the Nevada Properties without informing Petitioner, refusing to co-administer the trust, etc.), and resulting damages (payment of taxes on the Corona property, etc.)

The petition sufficiently states a claim for breach of fiduciary duty.

Petitioner’s request that damages be awarded in the amount not less than $4,150,000 on these two claims does not eradicate the sufficient

pleading of the claim. As the Petition specifically recognizes, the amount of damage is subject to proof. Respondent’s demurrers to the third and fourth causes of action are OVERRULED.

Regarding the fifth cause of action for fraud, Respondent argues Petitioner has no standing to bring the claim because the alleged misrepresentations were made to third parties and not to Petitioner and the only alleged damages, i.e. attorney fees, are not recoverable as fraud damages under California law. The fifth cause of action appears to be some combination of a claim that Respondent committed fraud against the buyer of the Nevada Properties and committed fraud by concealment against Petitioner.

Petitioner does not, however, have standing to seek recovery of damages for any harm suffered by the buyer of the Nevada Properties. Further, the concealment claim is confusing and appears to be missing some critical elements. To establish fraudulent concealment, a plaintiff must prove: (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would, with knowledge of the concealed or suppressed fact, have acted differently; and (5) plaintiff sustained damage as a result. (Graham v.

Bank of America, N.A. (2014) 226 Cal.App.4th 594, 606.)

Further, the damages Petitioner claims in connection with the fraud cause of action are limited to attorney fees incurred in stopping the sale of the Nevada Properties and in bringing this proceeding. Generally, attorney fees are not recoverable unless authorized by statute or contract. (Code of Civ. Proc., § 1021.) While the tort of another doctrine is an exception to the general rule, Petitioner does not allege sufficient facts to invoke that exception.

For the foregoing reasons, Respondent’s demurrer to the fifth cause of action for fraud is SUSTAINED with leave to amend. Petitioner has 20 days in which to amend the fifth cause of action for fraud.

III. MOTION TO STRIKE

Respondent’s motion to strike attacks the third, fourth, and fifth causes of action on the ground they are not drawn in conformity with the laws of this state. It also seeks to strike the prayer for punitive damages because it is derivative of the fraud claim and, alternatively, is not supported by facts suggesting malice, fraud, or oppression. In addition, the motion to strike seeks to strike all allegations regarding respondent’s drug use, employment history, and criminal history.

Respondent’s argument that the third, fourth, and fifth causes of action are not drawn in conformity with California law is duplicative of the arguments made in his demurrer and are, therefore, MOOTED by the ruling on the demurrer.

Respondent’s argument that the punitive damages claim is derivative of the fraud claim misreads the petition, which does not tie the punitive damages to the fraud claim. (See ROA 2, ¶ 11.) Punitive damages are available on breach of trust and breach of fiduciary duty claims. The allegation that Respondent attempted to sell substantial Trust assets without any knowledge or involvement by his cotrustee could, if proven true, support a finding of malice, fraud, or oppression. Accordingly, the motion to strike is DENIED as to the prayer for punitive damages.

Finally, Respondent argues the allegations regarding his alleged drug use, employment history and criminal behavior should be stricken because they are irrelevant, more prejudicial than probative, and are inadmissible character evidence. These are arguments against admission of evidence. A pleading is not evidence. Accordingly, the motion to strike is DENIED as to its remainder.

Petitioner is directed to give notice.

6 Randovic - Trust; 30-2024-01437165 No Tentative Ruling.

7 Aaron - Trust; 30-2025-01483366 No Tentative Ruling.