Zinchefsky vs. Zinchefsky

The portion of the Demurrer which seeks a plea in abatement is OVERRULED: To obtain a statutory plea in abatement absolute identity of the parties, causes of action and remedies is required. (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 788; See also People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4th 760, 770.)

Here, as Plaintiff’s Probate Petition seeks relief under Probate Code sections 17200, 850 and 859 (See Exhibit 2 of RJN) and, as the instant civil action asserts claims for Financial Elder Abuse, Conversion, Theft, Constructive Trust, Breach of Fiduciary Duty, Negligence, and Aiding and Abetting, no absolute identity is apparent.

While Defendant asserts “judgment in the probate case would preclude a determination of the Amended Complaint in the civil case” (Demurrer: 8:15-18 [ROA No. 84]), this statement is made without any further analysis or citation to authority. At most, this portion of the demurrer offers general citations to “Pet”

(which appears to refer to the Petition attached as Exhibit 2 to Defendant’s RJN) and the First Amended Complaint, documents which total over 250 pages.

The Court declines the invitation to independently examine the pleading papers for similarities.

“Every brief should contain a legal argument with citation to authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.” (People v. Stanley (1995) 10 Cal.4th 764, 793.)

Similarly, the portion of the Demurrer which asserts the rule of exclusive concurrent jurisdiction is OVERRULED, as the rule applies where “two superior courts have concurrent jurisdiction” and not where, as here, both actions are pending in the same court. (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 786-787.)

While “[t]he superior court is divided into departments, including the probate department, as a matter of convenience...the subject matter jurisdiction of the superior court is vested as a whole.” (Estate of Bowles (2008) 169 Cal.App.4th 684, 695.) As to both the civil and probate matters, jurisdiction is vested in the Orange County Superior Court and coordination between the proceedings is possible.

Nonetheless, the Demurrer to the First through Fourth Causes of Action is SUSTAINED, as Plaintiff has insufficiently pled standing.

“Standing is the threshold element required to state a cause of action and, thus, lack of standing may be raised by demurrer.” (Robinson v. Southern Counties Oil Co. (2020) 53 Cal.App.5th 476, 481.)

With respect to the First Cause of Action, “after the death of the elder or dependent adult, the right to commence or maintain an action shall pass to the personal representative of the decedent.” (Welf. & Inst. Code, § 15657.3, subd. (d)(1).) “If the personal representative refuses to commence or maintain an action” then “[a]n intestate heir whose interest is affected by the action,” “[t]he decedent’s successor in interests, as defined in Section 377.11 of the Code of Civil Procedure” or “[a]n interested person, as defined in Section 48 of the Probate Code,” “shall have standing to commence or maintain an action for elder abuse.” (Welf. & Inst. Code, § 15657.3, subd. (d)(1)(A)-(C) and subd. (d)(2).)

Per the Complaint, Janie L. Mulrain “is the Successor Trustee of the Zinchefsky Trust and the Personal Representative of Mary’s Estate.” (¶31 of FAC; See also ¶24, ¶42 of FAC [ROA No. 62].)

While Plaintiff asserts standing under Welfare & Institutions Code section 15657.3, subdivision (d)(2), the First Amended Complaint does not allege the personal representative refused to commence or maintain an action. Instead, the complaint concedes that Ms. Mulrain has filed a petition requesting instructions from the probate court. (¶24 and ¶77 of FAC.) At best, Plaintiff asserts Ms. Mulrain is handling the petition for instructions poorly, asserting she omitted “discussion of charges that occurred on Steven’s own banking cards” and “conducted no investigation or discovery beyond what Ryan provided to her.” (¶78 and ¶82 of FAC.)

Per the First Amended Complaint, however, the above deficiencies led to Plaintiff “filing a Declaration ‘in support’ of the Petition,” within the probate action, which included additional evidence. (¶86-¶87 of FAC.) Plaintiff also alleges he filed a second petition of his own, which requests “court supervision of Trustee Mulrain’s administration” and examination of the “evidence regarding Steven’s expenditure of Mary’s assets...to determine whether and in what amount Mulrain should be directed to recover funds from Steven....” (¶88 of FAC.)

Per the First Amended Complaint, all the above pending probate petitions were continued to April 28, 2026. (¶91 of FAC.) Per Defendant, the Petition for Instructions by Ms. Mulrain is presently set to be heard on September 15, 2026. (Reply: 5:14-16 [ROA No. 97].)

Based on the above, it is not yet clear whether the personal representative of Mary Catherine Zinchefsky will pursue claims on behalf of the Estate and Trusts.

Consequently, Plaintiff has not alleged sufficient facts to support standing, with respect to the First Cause of Action.

In asserting standing exists, Plaintiff cites Estate of Lowrie (2004) 118 Cal.App.4th 220; however, this action is distinguishable. In Lowrie, it was the individual appointed as both trustee and personal representative, who was alleged to have committed elder abuse. (Id. at p. 227-228.) The Court invoked Probate Code section 259, to find standing on behalf of the plaintiff therein: “Probate Code section 259 is a forfeiture statute that deems abusers of elder or dependent adults to have predeceased a deceased, abused elder or dependent adults.” (Id. at p. 228.)

The Court explained: “[I]f Sheldon [the alleged abuser] predeceased decedent, Lynelle would become the successor trustee and the successor beneficiary to the remainder. Thus, Lynelle would become the person entitled to succeed to decedent’s estate and Lynelle would have standing to bring this case.” (Id. at p. 229.) The Court further explained that standing pursuant to Probate Code section 259 was necessary: “If abusers gain control of an estate, they may not use a restrictive interpretation of standing as an escape hatch.” (Id. at p. 231.)

In contrast to the above, there are no allegations the relevant trustee and personal representative - Janie L. Mulrain – engaged in elder abuse. Consequently, Probate Code section 259 has no application.

With respect to the remaining claims asserted against Defendant Steven Zinchefsky, Plaintiff alleges he brings his claims “in his individual capacity as a beneficiary” as well as “derivatively for the Zinchefsky Trust and/or Estate....” (¶6 and ¶133 of FAC [ROA No. 62].) The Complaint alleges harm to the Estate and Trust, only. (See ¶104, ¶115, ¶120, ¶122, ¶129 and ¶143 of FAC [ROA No. 62].)

“A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent’s successor in interest...and an action may be commenced by the decedent’s personal representative or, if none, by the decedent’s successor in interest.” (Code Civ. Proc., § 377.30.)

As noted above, Janie L. Mulrain is the personal representative of Mary Zinchefsky’s Estate. (¶31 of FAC; See also ¶24, ¶42 of FAC [ROA No. 62].)

Additionally, “[a]t common law, where a cause of action is prosecuted on behalf of an express trust, the trustee is the real party in interests because the trustee has

legal title to the cause.” (Saks v. Damon Raike & Co. (1992) 7 Cal.App.4th 419, 427.) “The corollary to this rule is that the beneficiary of a trust generally is not the real party in interest and may not sue in the name of the trust. A trust beneficiary has no legal title or ownership interests in the trust assets; his or her right to sue is ordinarily limited to the enforcement of the trust, according to its terms.” (Ibid.) “Thus, absent special circumstances, an action prosecuted for the benefit of a trust estate by a person other than the trustee is not brought in the name of a real party in interests and is demurrable.” (Ibid.)

“However, ‘where a trustee cannot or will not enforce a valid cause of action that the trustee ought to bring against a third person, a trust beneficiary may seek judicial compulsion against the trustee. In order to prevent loss of or prejudice to a claim, the beneficiary may bring an action in equity joining the third person and the trustee.’” (Pillsbury v. Karmgard (1994) 22 Cal.App.4th 743, 753-754.)

Similarly, “[t]he beneficiary can maintain a suit in equity against the tortfeasor only if the trustee improperly refuses or neglects to bring an action, or if the trustee cannot be subjected to the jurisdiction of the court, or if there is a vacancy in the office of trustee.” (Estate of Bowles (2008) 169 Cal.App.4th 684, 692.)

As noted above, Janie L. Mulrain “is the Successor Trustee of the Zinchefsky Trust.” (¶31 of FAC; See also ¶24, ¶42 of FAC [ROA No. 62].) Additionally, the allegations in the Complaint indicate it is not yet clear whether Ms. Mulrain will pursue the claims sought to be asserted herein by Plaintiff. (See ¶24, ¶77, ¶78, ¶82, ¶86-¶88 and ¶91 of FAC [ROA No. 62].)

Consequently, Plaintiff has not alleged sufficient facts to support standing, with respect to the Second through Fourth Causes of Action.

While the above defects are potentially curable, it does not appear that Plaintiff can allege sufficient facts to demonstrate the personal representative and trustee has improperly failed to act, until resolution of the Petition for Instructions, currently pending within the Probate Proceeding.

Based on representations from Counsel, this Petition is not scheduled to be heard until September 15, 2026. (Reply: 5:14-16 [ROA No. 97].)

Rather than provide Plaintiff with four months leave to amend, the Court is inclined to stay this action, pending resolution of the above, pursuant to its inherent authority. (OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 141.)

The Court will set a status conference for October 2, 2026, at 8:30 a.m. in Department C16. Plaintiff is granted 20 days leave to amend; however, this 20- day period will not commence until the stay is lifted.

56 BMW Bank of North America vs. Serna

25-01526562 Application/Request & Motion - Other

Plaintiff BMW BANK OF NORTH AMERICA, a Utah industrial bank, by and through its servicer, BMW FINANCIAL SERVICES NA, LLC, a Delaware limited liability company’s unopposed Application for Writ of Possession against Defendants Shelley M. Serna and Manuel T. Villagrana II for the 2021 BMW X7 M50i motor vehicle, Serial No. 5UXCX6C08M9F15693 (the “Vehicle”) is GRANTED.