The David B. Costa Living Trust, dated August 17, 2018

Currently before the court are Respondent’s demurrer and motion to strike targeting the Amended Petition in docket 23PR194562. Also before the court are Respondent’s demurrer and motion to strike targeting the Objection in docket 25PR199269. Petitioner has opposed all four motions. Respondent filed a reply to the opposition to the demurrer in docket 23PR194562 only. The court continued the hearing on all four motions from April 16, 2026 to May 28, 2026 so that they could be heard together with a demurrer and motion to strike filed by Kang.

Also before the court are a demurrer and motion to strike filed by Kang in docket 23PR194562 targeting the Amended Petition. The demurrer and motion to strike are unopposed.

DISCUSSION Legal Background A. Demurrer A demurrer may be utilized by “[t]he party against whom a complaint [] has been filed” to object to the legal sufficiency of the pleading as a whole, or to any “cause of action” stated therein, on one or more of the grounds enumerated by statute. (Code Civ. Proc., §§ 430.10, 430.50, subd. (a).)1 The court in ruling on a demurrer treats it “as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Piccinini v.

Cal. Emergency Management Agency (2014) 226 Cal.App.4th 685, 688, citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214.)

In ruling on a demurrer, courts may consider matters subject to judicial notice. (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 751.) Evidentiary facts found in exhibits attached to a complaint can be considered on demurrer. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) B. Motion to Strike A court may strike out any irrelevant, false, or improper matter asserted in a pleading. (§ 436, subd. (a).) A court may also strike out all or any part of a pleading not drawn or filed in conformity with the laws of the State of California. (§ 436, subd. (b).)

The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. (§ 437, subd. (a).) The court’s decision to strike the petition pursuant to section 436 is discretionary. (See § 436 [“The court may . . .strike”]; see also Colden v. Broadway State Bank (1936) 11 Cal.App.2d 428, 429 [motion to strike is addressed to the sound discretion of the court].) A motion to strike should be applied cautiously and sparingly because it is used to strike substantive defects. (PH II, Inc. v.

Superior Court (1995) 33 Cal.App.4th 1680, 1682-1683.)

Respondent’s Demurrer and Motion to Strike Amended Petition in Docket 23PR194562 A. Respondent’s Request for Judicial Notice Respondent requested judicial notice of 17 items in support of both his demurrer and his motion to strike in docket 23PR194562. The request is GRANTED as to the court documents with the caveat that, while the court is free to take judicial notice of the existence of a document in a court file, it may not take judicial notice of the truth of hearsay statements contained therein. (Lockley v.

Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882; Evid. Code, § 452, subd. (d).) The request is also GRANTED as to the recorded recission deed and the marriage license. (See Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 549 [“The court may take judicial notice of recorded deeds.”]; Evid. Code, § 452, subd. (c).) Finally, the court GRANTS judicial notice of Probate Code section 16061.8. (Evid. Code, § 452, subd. (a).)

1 All further undesignated statutory references are to the Code of Civil Procedure.

B. Demurrer Respondent demurs to each cause of action in the Amended Petition on the grounds that they each fail to state sufficient facts and that they are uncertain.

At the outset, the court notes that the Amended Petition is not separated into traditional causes of action; instead, it contains headings that sometimes appear to correlate with specific causes of action and other times appears to correlate to the elements of a cause of action. The court will discuss the “causes of action” Respondent addresses below. i. Financial Elder Abuse of Decedent2 As to the claim of financial elder abuse of Decedent, Respondent argues that Petitioner lacks standing to bring a financial elder abuse claim on behalf of Decedent; that she fails to allege a taking, appropriation, or retention of a benefit by Respondent; that no ultimate facts regarding undue influence or active procurement by Respondent are alleged; and the Amended Petition pleads no damages suffered by Decedent.

Respondent first contends that Petitioner lacks standing or fails to establish that she has standing to bring this claim. (1) Subject to paragraph (2) and subdivision (e), 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. If there is no personal representative, the right to commence or maintain an action shall pass to any of the following, if the requirements of Section 377.32 of the Code of Civil Procedure are met: (A) An intestate heir whose interest is affected by the action. (B) The decedent’s successor in interest, as defined in Section 377.11 of the Code of Civil Procedure. (C) An interested person, as defined in Section 48 of the Probate Code, as limited in this subparagraph.

As used in this subparagraph, “an interested person” does not include a creditor or a person who has a claim against the estate and who is not an heir or beneficiary of the decedent’s estate. (2) If the personal representative refuses to commence or maintain an action or if the personal representative’s family or an affiliate, as those terms are defined in subdivision (c) of Section 1064 of the Probate Code, is alleged to have committed abuse of the elder or dependent adult, the persons described in subparagraphs (A), (B), and (C) of paragraph (1) shall have standing to commence or maintain an action for elder abuse.

This paragraph does not require the court to resolve the merits of an elder abuse action for purposes of finding that a plaintiff who meets the qualifications of subparagraphs (A), (B), and (C) of paragraph (1) has standing to commence or maintain such an action.

2 The Amended Petition also appears to contain an undue influence cause of action that may be potentially separate from the financial elder abuse of Decedent claim. (See Amended Petition, pp. 5:6-9:8.) It is not clear whether this is meant to be a separate cause of action or part of the financial elder abuse of Petitioner cause of action. (See Amended Petition, § 22 [alleging that undue influence is a form of financial abuse].) The court requests that any second amended petition Petitioner may file clearly label each cause of action as such.

(Welf. & Inst. Code, § 15657.3, subd. (d).)

Here, Respondent is the current personal representative who would ordinarily be the one tasked with bringing an elder abuse claim. But, because the claim is alleged against him, Welfare and Institutions Code section 15657, subdivision (d)(2) applies. The Amended Petition pleads that Petitioner is an interested person in that she is Decedent’s surviving spouse and a beneficiary of the trust. (Amended Petition, ¶ 4.) Respondent argues that Petitioner does not plead that she complied with “the requirements of Section 377.32 of the Code of Civil Procedure[.]” (Welf. & Inst.

Code, § 15657.3, subd. (d)(1).) Section 377.32 requires an affidavit containing certain specified information where one seeks to maintain a cause of action as a decedent’s successor in interest. “Section 377.32, however, ‘does not require that the affidavit be filed as a condition precedent to commencing or continuing the action.’ [Citation.]” (Aghaian v. Minassian (2021) 64 Cal.App.5th 603, 614; accord Maleti v. Wickers (2022) 82 Cal.App.5th 181, 229.) Thus, failure to plead compliance with section 377.32 cannot render the Amended Petition subject to demurrer.

As to Respondent’s argument that the cause of action fails to state in what manner the taking, appropriation of a benefit by Respondent occurred, “The [Elder Abuse] Act broadly defines financial abuse as occurring ‘when a person or entity ... [¶] ... [t]akes, secretes, appropriates, obtains, or retains real or personal property of an elder ... for a wrongful use or with intent to defraud, or both’ ([Welf. & Inst. Code,] § 15610.30, subd. (a)(1), italics added) or ‘by undue influence.’ (§ 15610.30, subd. (a)(3).)

Further, a person or entity that assists in the foregoing conduct is also liable for elder abuse. (§ 15610.30, subd. (a)(2).)” (Bounds v. Superior Court (2014) 229 Cal.App.4th 468, 478.) Welfare and Institutions Code section 15610.30, subdivision (c) provides, “For purposes of this section, a person or entity takes, secretes, appropriates, obtains, or retains real or personal property when an elder or dependent adult is deprived of any property right, including by means of an agreement, donative transfer, or testamentary bequest, regardless of whether the property is held directly or by a representative of an elder or dependent adult.”

A taking can be adequately alleged where it is pled that the right of an elder to dispose of their real property as they see fit is encumbered. (Bounds v. Superior Court, supra, 229 Cal.App.4th at p. 483.)

Petitioner contends that the Amended Petition adequately pleads the same with the following allegations: Respondent and Philemon Kang (1) took Decedent to banks and financial institutions despite his inability to speak, write, or communicate independently, and directed transactions in his name (Amended Petition, Page 3, Paragraph 12; Page 6, Paragraph 27; Page 7, Paragraph 28; Page 9, Paragraph 36); (2) implemented a fee-payment scheme in which they paid themselves from Decedent’s accounts (Amended Petition, Page 4, Paragraph 13); (3) arranged the sale of Decedent’s real property through a personal associate, with Phil benefiting from the proceeds (Amended Petition, Page 7, Paragraph 29); and (4) procured the execution of the 2022 Restatement that transferred beneficial interests away from Petitioner and toward Respondents (Amended Petition, Page 8, Paragraphs 32-33).” (Opposition, pp. 5:23-6:3.)

While the court agrees with Petitioner that the specifics of every transaction need not be pled, an elder abuse cause of action is statutory and must be pled with greater particularity. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790 (Covenant Care).) Thus, the failure to differentiate which actions were committed by Respondent and which by Philemon Kang renders the cause of action subject to demurrer. Thus, the allegation that

Philemon Kang caused the sale of Decedent’s real property, (see Amended Petition, § 33), with no allegations that Respondent aided and abetted him is insufficient to plead elder abuse on the part of Respondent. Petitioner also points to the allegation that Respondents caused Decedent to change his estate plan to benefit Respondents and paid themselves “through a compensation scheme tied to Decedent’s assets,” (Amended Petition, ¶ 32), but that allegation is too general to adequately apprise Respondents of what actions they allegedly took or in what specific manner the taking occurred.

Further, the court agrees with Respondent that damages suffered by Decedent are inadequately pled. Notably, the allegation that Decedent changed his estate plan asserts that this was accomplished to the detriment of Petitioner herself, rather than Decedent. (See, e.g., Amended Petition, ¶ 32 [“Respondents also isolated Decedent from his wife and disregarded his longstanding commitments to her. Most critically, they initiated and procured changes to Decedent’s estate plan that eliminated Petitioner’s rights and substituted arrangements that favored Respondents, while simultaneously paying themselves through a self-devised compensation scheme tied to Decedent’s assets.”], italics added.)

The demurrer is SUSTAINED as to the cause of action for financial elder abuse of Decedent WITH 20 DAYS’ LEAVE TO AMEND. ii. Financial Elder Abuse of Petitioner As to the claim of financial elder abuse of Petitioner, Respondent argues that it fails because Petitioner was not 65 years old at the relevant times, alleges no statutory taking of her property, relies on impermissible group pleading, and is barred to the extent it challenges restoration of the Dry Creek Property pursuant to a court-approved order.

As to the first contention, the Amended Petition does not plead Petitioner’s age or date of birth. Respondent contends that Petitioner was born on August 27, 1958, based on the marriage license for her marriage to Decedent. Petitioner counters that some of the injuries she alleges happened after she turned 65. While that may be correct, Petitioner is required to plead the ultimate facts to establish entitlement to relief. To state a claim for financial elder abuse, a plaintiff must plead and prove the following: (1) the plaintiff was “elderly” within the meaning of the Elder Abuse Act (Welfare & Institutions Code § 15600, et seq.), i.e., 65 years of age or older; (2) the defendant took or retained the plaintiff’s property with the intent to defraud the plaintiff, for a wrongful use, or by undue influence; (3) the plaintiff was harmed; and (4) the defendant’s conduct was a substantial factor in causing in the plaintiff’s harm. (See CACI No. 3100; Welf. & Inst.

Code, § 15610.30.) Thus, Petitioner must plead that she was an elder within the meaning of the statute. As mentioned above, because a financial elder abuse cause of action is statutory, it must be pleaded with particularity. (Covenant Care, supra, 32 Cal.4th at p. 790.) Thus, merely stating that Petitioner was an elder is insufficient.

For the same reason, the court finds that the financial elder abuse cause of action relating to Petitioner is subject to demurrer due to the blurring of the allegations regarding actions taken by Respondent and those taken by Philemon Kang. However, the court rejects Respondent’s argument that the Amended Petition fails to allege a statutory taking as to Petitioner. The Amended Petition alleges that Respondents’ actions caused a deviation from Decedent’s intended estate plan, to the detriment of Petitioner. (See Amended Petition, ¶¶ 32, 37.) Further, while Respondent argues that any rights Petitioner might have under the estate plan would only come into play after Decedent passed away, he cites no authority that a change

to an estate plan to the detriment of a beneficiary, caused by undue influence or elder abuse, cannot constitute financial elder abuse of that beneficiary as a matter of law.

Respondent also contends that any claim Petitioner may make regarding Decedent’s residence (the “Dry Creek Property”) is barred because Petitioner agreed to a settlement by which a deed transferring the Dry Creek Property to her was voided. A demurrer does not lie to a portion of a cause of action. (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682.) Because this argument targets only a portion of a cause of action, it does not dispose of the entire cause of action, and therefore the demurrer cannot be sustained on this basis.

The demurrer is SUSTAINED as to the cause of action for elder abuse against Petitioner with 20 DAYS’ LEAVE TO AMEND for the reasons discussed above. iii. Intentional Interference with Expected Inheritance Respondent contends that the intentional interference with expected inheritance (“IIEI”) cause of action cannot lie because Petitioner has adequate remedies at probate. As explained in Halperin v. Halperin (2026) 118 Cal.App.5th 193, 199 (Halperin), “The tort of IIEI was first recognized by a California court in Beckwith v.

Dahl (2012) 205 Cal.App.4th 1039 (Beckwith).” Under Beckwith, “a plaintiff cannot recover for IIEI if ‘an adequate probate remedy exists.’ ” (Halperin, supra, 118 Cal.App.5th at p. 200, quoting Beckwith, supra, 205 Cal.App.4th at pp. 1056, 1058.) In Halperin, the Court of Appeal upheld the trial court’s order sustaining a demurrer where the petitioner had standing to assert and did assert requests for relief in probate. (Halperin, supra, 118 Cal.App.5th at p. 201; see also, Munn v. Briggs (2010) 185 Cal.App.4th 578, 591 (Munn) [upholding order sustaining demurrer where petitioner had adequate remedy in probate].)

Here, Petitioner has standing in probate to challenge the 2022 restatement and she has done so. Petitioner argues that the availability of an adequate probate remedy turns on factual issues that cannot be resolved on a demurrer. She maintains that Respondent’s defenses to her causes of action show that the demurrer should not be sustained. For example, she asserts that Respondent argues that her cause of action to invalidate the trust is barred by the statute of limitations, Probate Code section 16061.8, and by judicial estoppel. She maintains that, if such defenses were accepted, she would be foreclosed from recovery in probate.

Munn undercuts Petitioner’s argument. In Munn, the Court of Appeal concluded that the tort of IIEI was unavailable because the petitioner could have but did not timely avail himself probate remedies. The court explained that the petitioner did not file an objection to the probate of a will before or at the hearing on the petition for probate, had failed to file a petition to revoke the will within 120 days of admission of the will as required by Probate Code section 8270, but instead filed a petition under the former safe harbor provisions for a determination that his proposed petition for IIEI would not constitute a will contest. (Munn, supra, 185 Cal.App.4th at p. 591.)

The court rejected the petitioner’s argument that the probate remedy was inadequate because the codicil he sought to challenge contained a no contest clause because to allow petitioners to use an IIEI cause of action to circumvent a no contest clause would violate the public policy behind no contest clauses as well as eliminate statutory will contests in cases involving no contest clauses. (Id. at p. 592.) Here, as Respondent argues, to allow Petitioner to bring an IIEI claim would allow her to circumvent the statute of limitations to bring a claim for invalidating the trust.

The demurrer is SUSTAINED as to the IIEI claim WITHOUT LEAVE TO AMEND. iv. Buyout of Petitioner’s Life Estate The 2022 trust leaves Petitioner a life estate in the Dry Creek Property. In her Amended Petition, Petitioner seeks a buyout of her interest in the property. Respondent contends that this cause of action is subject to demurrer because the trustee must follow the terms of the trust. Petitioner contends that this cause of action requires consideration of factual and equitable concerns that cannot be adjudicated on demurrer.

Because the court has authority to amend the trust provisions or otherwise grant equitable relief, the demurrer cannot be sustained on the ground that the trustee lacks authority to deviate from the terms of the trust. (See, e.g., Prob. Code, §§ 15409, 17200; Schwan v. Permann (2018) 28 Cal.App.5th 678, 697 [probate court has equitable power to modify trust to serve the intent and purpose of the trust].) The demurrer is OVERRULED as to the buyout of Petitioner’s life estate cause of action. v. Compensation for Caregiver Services As to Petitioner’s cause of action for compensation for caregiving services she allegedly performed for Decedent prior to his death, Respondent asserts that this cause of action must be raised in the estate case, 25PR199269, rather than the trust case, 23PR194562.

Assuming without deciding that this argument falls within one of the statutory grounds for demurrer, (see § 430.10), the court rejects thus argument. In the context of a creditor’s claim against a trust, “ ‘Claim’ means a demand for payment for any of the following, whether due, not due, accrued or not accrued, or contingent, and whether liquidated or unliquidated: . . . Liability of the deceased settlor, whether arising in contract, tort, or otherwise.” (Prob. Code, § 19000, subd. (a).) “Upon the death of a settlor, the property of the deceased settlor that was subject to the power of revocation at the time of the settlor’s death is subject to the claims of creditors of the deceased settlor’s probate estate and to the expenses of administration of the probate estate to the extent that the deceased settlor’s probate estate is inadequate to satisfy those claims and expenses.” (Prob.

Code, § 19001, subd. (a).) Respondent argues that Petitioner has failed to comply with the probate creditor claims process but he does not indicate how she has failed to comply. (See Quantum Cooking Concepts, Inc. v. LV Assocs., Inc. (2011) 197 Cal.App.4th 927, 934 [stating that the trial court is not required to “comb the record and the law for factual and legal support that a party has failed to identify or provide”].)

Finally, Respondent argues that the cause of action fails because Petitioner has failed to plead an agreement for payment for her services and failed to allege whether any contract was written or oral under section 430.10, subdivision (g). Section 430.10, subdivision (g) provides that a demurrer lies where, “[i]n an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.” This argument is well taken. The demurrer is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND to allege the theory upon which Petitioner seeks compensation for caregiving services. vi.

Distribution of Pay On Death Account Respondent contends that the cause of action for distribution of the pay on death account may not be raised in the trust case because the pay on death account is not a trust asset. He asserts that the Amended Petition admits that the pay on death account is not a trust asset. (Amended Petition, ¶¶ 17 [“At the time of Decedent’s death, an E*Trade account existed in Decedent’s name listing Petitioner as the payable-on-death (POD) beneficiary.”] 66 [“Because the account is not part of the Trust, there is no legal justification for Respondents’ refusal to release these funds.”].)

Petitioner points out that the pay on death account cause of action also alleges that Respondent violated his fiduciary duty as trustee by failing to distribute the funds. (Amended Petition, ¶ 66 [“Respondents have unlawfully, and without justification have instructed E*Trade to withhold distribution of the funds, which total at least $909,841.46, to Petitioner. This constitutes a clear breach of their fiduciary duties to act in good faith and avoid selfdealing. (See Hearst v. Ganzi (2006) 145 Cal.App.4th 1195.)”].) Petitioner does not explain how the failure to distribute the pay on death account funds could constitute a breach of a trustee’s fiduciary duty or how Respondent has a duty to pay out the funds in his capacity as trustee if the account is not a trust asset.

Notably, the Amended Petition cites two cases in support of the proposition that “a trustee or fiduciary” is required to distribute the funds in pay on death account upon the depositor’s death. (Amended Petition, ¶ 65.) In the first case, Araiza v. Younkin (2010) 188 Cal.App.4th 1120,3 the Court of Appeal held that a settlor properly changed the beneficiary on her Totten trust account via the execution of a trust listing the same account as a trust asset and naming a different person as a beneficiary to receive that account on the settlor’s death.4 In the second case, the Court of Appeal concluded that there were triable issues of material fact as to whether a Totten trust account had been created. (Estate of Fisher, supra, 198 Cal.App.3d at p. 425.)

Both cases mention the general rule that the funds in pay on death accounts belong to the listed beneficiary upon the death of the depositor. (See Araiza v. Younkin, supra, 188 Cal.App.4th at pp. 1124-1125; Estate of Fisher, supra, 198 Cal.App.3d at p. 424; Prob. Code, § 5302.) But, neither holds that the trustee of a trust that does not hold the account as an asset is required to distribute the funds in the account to the beneficiary named on the account.

What is missing from the Amended Petition is any allegation connecting Respondent’s actions in preventing Petitioner from receiving payment to his role as trustee. The court is unaware of any authority indicating that the trustee has a duty to distribute non-trust assets to beneficiaries or any authority indicating that failure to do so is a breach of fiduciary duty. In the absence of such pleaded facts or authority, the court agrees with Respondent that this claim is improperly raised in the trust case. Nonetheless, the court cannot find that Respondent’s alleged interference with the distribution does not constitute a breach of fiduciary duty as a matter of law if Respondent used his role as trustee or otherwise acted in his capacity as trustee to prevent the distribution. Accordingly, the court will sustain the demurrer with leave to amend.

The demurrer is SUSTAINED as to the pay on death account claim WITH 20 DAYS’ LEAVE TO AMEND.

3 The Amended Petition does not provide a pincite.

4 “The term Totten trust describes a bank account opened by a depositor in his own name as trustee for another person where the depositor reserves the power to withdraw the funds during his lifetime. If the depositor has not revoked the trust then, upon his death, any balance left in the account is payable to the beneficiary. [Citations.] The name derives from the case of In re Totten (1904) 179 N.Y. 112 in which the court stated the rule subsequently followed in most jurisdictions.” (Estate of Fisher (1988) 198 Cal.App.3d 418, 424.)

vii. Invalidation of Trust as Omitted Spouse The Amended Petition asserts that the trust as amended is invalid and because the original trust did not provide for Petitioner, she seeks recognition as an omitted spouse pursuant to Probate Code section 21610.5 Respondent contends that the statute of limitations bars a claim to invalidate the trust and that the prior version of the petition indicated that Petitioner sought an extension of the time in which to file a claim for trust invalidation. The Amended Petition does not contain this allegation and Respondent maintains that the deletion of that allegations is an attempt to avoid the statute of limitations, which must be rejected under the sham pleading doctrine.

Probate Code section 16061.8 provides A person upon whom the notification by the trustee is served pursuant to paragraph (1) of subdivision (a) of Section 16061.7, whether the notice is served on the person within or after the time period set forth in subdivision (f) of Section 16061.7, shall not bring an action to contest the trust more than 120 days from the date the notification by the trustee is served upon the person, or 60 days from the date on which a copy of the terms of the trust is delivered pursuant to Section 1215 to the person during that 120-day period, whichever is later. In the original petition filed August 12, 2025 in docket 25PR200738, Petitioner alleged, “Petitioner has requested additional time to contest the trust past the 180 days allotted to contest the trust as granted by RYAN’s memorandum and notification by trustee to review and assess the administration of the Trust and intends to file a creditor’s claim for the unpaid personal services she rendered to Decedent during his lifetime.” (Original Petition, ¶ 19.)

“ ‘A demurrer on the ground of the bar of the statute of limitations will not lie where the action may be, but is not necessarily barred.’ [Citations.] It must appear clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred. [Citations.] This will not be the case unless the complaint alleges every fact which the

5 That section provides

Except as provided in Section 21611, if a decedent fails to provide in a testamentary instrument for the decedent’s surviving spouse who married the decedent after the execution of all of the decedent’s testamentary instruments, the omitted spouse shall receive a share in the decedent’s estate, consisting of the following property in said estate: (a) The one-half of the community property that belongs to the decedent under Section 100. (b) The one-half of the quasi-community property that belongs to the decedent under Section 101. (c) A share of the separate property of the decedent equal in value to that which the spouse would have received if the decedent had died without having executed a testamentary instrument, but in no event is the share to be more than one-half the value of the separate property in the estate.

(Prob. Code, § 21610.)

defendant would be required to prove if he were to plead the bar of the applicable statute of limitation as an affirmative defense. [Citation.]” (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881.)

However, under the sham pleading doctrine, “admissions in an original complaint... remain within the court’s cognizance and the alteration of such statements by amendment designed to conceal fundamental vulnerabilities in a plaintiff’s case will not be accepted.’” (Lockton v. O’Rourke (2010) 184 Cal.App.4th 1051, 1061.) The purpose of the doctrine is to “enable the courts to prevent an abuse of process. [Citation.]” (Hanh v. Mirda (2007) 147 Cal.App.4th 740, 751.) “[W]here a party files an amended complaint and seeks to avoid the defects of a prior complaint either by omitting the facts that rendered the complaint defective or by pleading facts inconsistent with the allegations of prior pleadings,” the court may examine the prior complaint to ascertain whether the amended pleading is merely a sham. (Owen, supra‚ 198 Cal.App.3d at p. 384.)

Because paragraph 19 of the original petition does not state the date the trustee’s notice or a copy of the trust were received by Petitioner, the court finds that even when paragraph 19 is considered, the court cannot determine that the trust invalidation claim is untimely from the face of the Amended Petition.

Respondent also argues that, during his lifetime, Decedent was the subject of a conservatorship in docket 22PR193873. In that case, Petitioner, Respondent, and the Public Guardian on behalf of Decedent entered into a stipulation and order involving Decedent’s estate plan. In that stipulation and order, the parties agreed to void an estate plan created for Decedent in December 2022 by the firm Wong & Associates and reinstate the 2022 version of the trust and other documents drafted in February 2022 by Decedent’s estate planning attorneys at Dean Jones, LLP. (Respondent’s Request for Judicial Notice, Ex. 1 [Stipulation and Order], pp. 2:21-5:9.) Petitioner is now seeking to invalidate the 2022 trust via this cause of action. Respondent contends that she is judicially estopped from doing so.

“The doctrine of judicial estoppel ... is invoked to prevent a party from changing its position over the course of judicial proceedings when such positional changes have an adverse impact on the judicial process. ... Judicial estoppel is ‘intended to protect against a litigant playing fast and loose with the courts. [Citation.]” (Filtzer v. Ernst (2022) 79 Cal.App.5th 579, 588, internal quotation marks omitted.) The burden of establishing that judicial estoppel applies is on Respondent as the party invoking it. (Ibid.)

“The doctrine applies when (1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.” (Blix Street Records, Inc. v. Cassidy (2010) 191 Cal.App.4th 39, 47, internal citations and quotation marks omitted.) Judicial estoppel is an extraordinary remedy to be invoked only when a party’s inconsistent behavior will result in a miscarriage of justice. (Ibid.)

Respondent has not attempted to grapple with the above elements and the stipulation. The stipulation states, “the Trust . . . [is] reinstated and shall continue in full force and effect.” Thus, while recognizing that the February 2022 estate plan is in effect, the stipulation does not

specifically indicate that Petitioner acknowledges its validity. Though Petitioner’s belief in the validity of the Trust could be inferred from the stipulation, given the extraordinariness of the remedy of judicial estoppel any ambiguity or doubt must be construed in Petitioner’s favor. Because one cannot say that the stipulation is totally inconsistent with Petitioner’s current claim of invalidity, judicial estoppel does not apply.

Finally, Respondent contends that Probate Code section 21611, subdivision (b) prevents Petitioner from seeking recognition as an omitted spouse because the 2022 version of the trust makes her a beneficiary. “The spouse shall not receive a share of the estate under Section 21610 if any of the following is established: . . . The decedent provided for the spouse by transfer outside of the estate passing by the decedent’s testamentary instruments and the intention that the transfer be in lieu of a provision in said instruments is shown by statements of the decedent or from the amount of the transfer or by other evidence.” (Prob.

Code, § 21611, subd. (b).) The parties disagree over whether the bequest to Petitioner in the 2022 trust qualifies as “providing for” Petitioner because Petitioner did not receive an “equivalent” bequest under the terms of the trust. The court need not determine whether a bequest that is not equivalent to what an omitted spouse could receive under Probate Code section 21610 is sufficient to constitute “providing for” the omitted spouse because this cause of action seeks to invalidate the 2022 trust and then requests a finding that a prior version of the trust did not provide for Petitioner such that she is an omitted spouse. (See Amended Petition, ¶ 66 [“Petitioner respectfully requests that the Court find the Amendment invalid, and, because Petitioner was not a beneficiary of the original Trust (she was not married to Decedent) that she be recognized as an omitted spouse under Probate Code § 21610.”].)

Thus, this cause of action, by its own terms does not rely on the argument that the bequest in the 2022 trust is not equivalent to what Petitioner could have received as an omitted spouse. For the same reason, Respondent’s argument that the 2022 trust makes Petitioner a beneficiary and therefore she is not an omitted spouse also fails.

The demurrer is OVERRULED as to the cause of action for invalidation of trust as omitted spouse.

C. Motion to Strike Respondent’s motion to strike seeks to strike the entirety of the Amended Petition on the ground that it is untimely. The motion also seeks to strike portions of the Amended Petition as will be discussed further below.

Respondent contends that the Amended Petition is untimely because it had to be filed within the time Petitioner had to oppose his prior demurrer and motion to strike. Section 472, subdivision (a) provides, in pertinent part, “A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike.”

Respondent’s prior demurrer and motion to strike were set to be heard on February 4, 2026. But, when Petitioner filed her Amended Petition on January 29, 2026, the court found the demurrer and motion to strike moot. Respondent contends that the Amended Petition had to be filed by January 22, 2026, the date Petitioner’s opposition was due. (See § 1005, subd. (b)

[opposition must be filed nine court days before hearing].) The court declines to strike the Amended Petition on this ground. (See § 436 [“The court may . . .strike”]; see also Colden v. Broadway State Bank, supra, 11 Cal.App.2d at p. 429 [motion to strike is addressed to the sound discretion of the court].) Notably, Respondent did not object to the court’s tentative ruling finding the prior demurrer and motion to strike moot and Respondent establishes no prejudice flowing from the court allowing the Amended Petition to proceed. The motion is DENIED to the extent it seeks an order striking the entirety of the Amended Petition.

The motion is DENIED AS MOOT to the extent it seeks to strike the IIEI cause of action as the court has sustained the demurrer to that cause of action without leave to amend.

Respondent repeats the arguments he made in the demurrer with respect to the causes of action for buyout of Petitioner’s life estate, caregiver compensation, and the transfer on death account. The court has rejected these arguments above.

The motion also targets the request in the Amended Petition for double damages under Probate Code section 859. (Amended Petition, ¶¶ 55-59, prayer for relief ¶ 7.) Respondent’s argument on this point is premised on the demurrer being sustained to Petitioner’s causes for financial elder abuse and IIEI causes of action and the demurrer has been sustained to all three causes of action with leave to amend. Petitioner contends that the Amended Petition also asserts that Respondent failed to account and breached his fiduciary duties but the Amended Petition contains no standalone cause of action for breach of fiduciary duty and Probate Code section 859 requires a bad faith taking of property, thus, failing to account standing alone is insufficient.

The motion to strike is GRANTED as to the Probate Code section 859 allegations (Amended Petition, ¶¶ 55-59, prayer for relief ¶ 7) WITH 20 DAYS’ LEAVE TO AMEND.

Respondent also challenges Petitioner’s request for attorney fees pursuant to unspecified portions of the Probate Code and Welfare and Institutions Code. (See Amended Petition, prayer for relief ¶ 9.) Petitioner contends that the request is proper under Probate Code section 859. But, as discussed above the motion is granted as to the Probate Code section 859 allegations. Thus, the additional separate request for attorney fees on the same basis is also subject to the motion to strike. The motion to strike is GRANTED as to paragraph 9 of the prayer for relief WITH 20 DAYS’ LEAVE TO AMEND.

Finally, Respondent seeks to strike allegations regarding Petitioner’s entitlement to the Dry Creek Property. Nowhere in the notice of motion or supporting documents does Respondent explain where these allegations are located. (See Cal. Rules of Court, rule 3.1322(a) [“A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense.”].) Accordingly, the motion to strike is DENIED as to those allegations.

Kang’s Demurrer and Motion to Strike Amended Petition in Docket 23PR194562 A. Kang’s Request for Judicial Notice Kang requests judicial notice, in connection with both the demurrer and the motion to strike, of (1) the Petition for Orders: 1. Fiduciary Financial Elder Abuse (Welfare & Institutions Code § 15600, et seq.); 2. Breach of Fiduciary Duty; 3. Conversion; 4. Constructive Trust; and 5. Undue Influence, filed by Respondent in docket 25PR199269 and

(2) Decedent’s and Petitioner’s marriage license and certificate. The request is GRANTED. (Evid. Code, § 452, subds. (c), (d).) B. Demurrer Kang frames the “causes of action in the Amended Petition somewhat differently from Respondent. He addresses an undue influence cause of action, two financial elder abuses causes of action (one alleging acts committed against Decedent and one against Petitioner), one for IIEI, an omitted spouse claim, and a claim for buyout of Petitioner’s life estate.6 i. Undue Influence Cause of Action At the outset, the court notes that it is not entirely clear if the Amended Petition is attempting to state a cause of action for undue influence or if the undue influence language is meant to be part of the financial elder abuse claims. (See Amended Petition, ¶ 22 [stating that undue influence is a form of financial elder abuse].)

To the extent it is a cause of action, the undue influence claim alleges that Respondent and Kang used coercive tactics to control Decedent’s finances and caused Decedent to change his estate plan so that it did not provide for Petitioner. (Amended Petition, ¶¶ 29-38.)

Kang asserts that in Rice v. Clark (2002) 28 Cal.4th 89, 97, the California Supreme Court held that undue influence is shown when “(1) the person alleged to have exerted undue influence had a confidential relationship with the testator; (2) the person actively participated in procuring the instrument’s preparation or execution; and (3) the person would benefit unduly by the testamentary instrument.” (Kang Demurrer MPA, p. 6:19-23.) He contends that he is not alleged to have been in any kind of fiduciary relationship with Decedent or Petitioner. Rather, he is merely accused of selling a life insurance policy to Decedent and that because he had no role in procuring the 2018 trust or the 2022 trust amendment and does not stand to gain from either the 2018 trust or the 2022 amendment, the demurrer should be sustained.

Kang’s statement of the law is somewhat of a misstatement. In the portion of Rice v. Clark Kang cites, the court was discussing the presumption of undue influence: “Although a person challenging the testamentary instrument ordinarily bears the burden of proving undue influence ([Prob. Code,] § 8252), this court and the Courts of Appeal have held that a presumption of undue influence, shifting the burden of proof, arises upon the challenger’s showing that (1) the person alleged to have exerted undue influence had a confidential relationship with the testator; (2) the person actively participated in procuring the instrument’s preparation or execution; and (3) the person would benefit unduly by the testamentary instrument.” (Rice v.

Clark, supra, 28 Cal.4th at pp. 96-97, italics added.) It appears that Petitioner is attempting to rely on the presumption of undue influence. (See Amended Petition, ¶ 24.) To the extent she is intending to invoke the presumption, she must state the requisite facts to do so. Accordingly, the demurrer is SUSTAINED to the undue influence cause of action on the ground that Petitioner has not pleaded facts showing that a fiduciary relationship between Kang and Decedent or Kang and Petitioner, that Kang took action to procure the 2018

6 Kang also appears to group the buyout of life estate, compensation for caregiving services, and distribution of E-Trade account claims into one accounting cause of action. (See Memorandum of Points and Authorities in Support of Respondent Philemon Hyunwok Kang’s Demurrer to Amended Petition (“Kang Demurrer MPA”), p. 2, fn. 1.)

trust or 2022 amendment, or that Kang stands to benefit from those documents because the allegations are too conclusory to establish these elements.

Kang requests that the demurrer be sustained without leave to amend. But, “[i]f the plaintiff has not had an opportunity to amend the complaint in response to the demurrer, leave to amend is liberally allowed as a matter of fairness, unless the complaint shows on its face that it is incapable of amendment. [Citations.]” (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747.) Kang has not shown that the undue influence cause of action cannot be amended to state a valid claim. Accordingly, the demurrer is SUSTAINED to the undue influence cause of action WITH 20 DAYS’ LEAVE TO AMEND. ii.

Financial Elder Abuse Causes of Action Kang raises similar arguments to Respondent Tanaka as to the financial elder abuse causes of action. Specifically, he contends that it cannot be determined what actions he took because of impermissible “group pleading” and that Petitioner has failed to adequately plead that she was an elder at the time of the alleged wrongful actions. These arguments are welltaken for the reasons discussed above in connection with Respondent’s demurrer. Kang’s demurrer is SUSTAINED as to the two financial elder abuse causes of action WITH 20 DAYS’ LEAVE TO AMEND. iii.

The IIEI Cause of Action Kang repeats Respondent’s argument that the IIEI cause of action must fail where there is an adequate probate remedy. The court SUSTAINS the demurrer to the IIEI cause of action WITHOUT LEAVE TO AMEND on that ground. For this reason, the court need not address Kang’s remaining arguments as to this cause of action. iv. The Omitted Spouse Cause of Action Kang asserts that the omitted spouse cause of action fails because Petitioner was provided for outside of the trust and her assertion that an “equivalent” provision outside the of the trust is unnecessary.

While Kang provides authority that an equivalent provision is not required, (see Estate of Bridler (1958) 165 Cal.App.2d 486, 488), he does not identify how Petitioner was provided for outside of the trust. He points to nowhere in the petition where Petitioner pleads that she received a gift outside of the trust nor does he request judicial notice of any item from which the court could conclude that she received such a gift. To the extent Kang is referring to the life estate, as discussed above, this cause of action seeks to invalidate the 2022 trust and then requests a finding that a prior version of the trust did not provide for Petitioner such that she is an omitted spouse. (See Amended Petition, ¶ 66 [“Petitioner respectfully requests that the Court find the Amendment invalid, and, because Petitioner was not a beneficiary of the original Trust (she was not married to Decedent) that she be recognized as an omitted spouse under Probate Code § 21610.”].)

Thus, the omitted spouse cause of action, by its own terms does not rely on the argument that the bequest in the 2022 trust is not equivalent to what Petitioner could have received as an omitted spouse.

The court also rejects Kang’s argument that the stipulation bars Petitioner from raising this claim for the reasons discussed above in connection with Respondent’s demurrer.

Kang’s demurrer is OVERRULED as to the omitted spouse cause of action.

v. The Life Estate Buyout Claim As to the life estate buyout claim, Kang contends that the trust does not provide for such a remedy, it only provides Petitioner with a life estate in the real property. The court rejects this argument for the same reasons expressed above in connection with Respondent’s demurrer. The demurrer is OVERRULED as to the buyout of Petitioner’s life estate cause of action. vi. Statute of Limitations Kang contends that Petitioner’s claims are time-barred because a trust contest may only be filed within 120 days of the service of the notice under Probate Code section 16061.7 or within 60 days after receipt of the trust instrument, whichever is later. (Prob.

Code, § 16061.8.) It is not clear to which cause(s) or action this argument is directed. The court rejects this argument for the same reasons discussed above in the context of Respondent’s demurrer. The demurrer is OVERRULED to the extent it relies on the statute of limitations argument. C. Motion to Strike Kang asserts that the entire Amended Petitioner should be stricken because it was untimely filed because it was not filed until after the time to file an opposition to Kang’s prior demurrer had passed.

The court declines to strike the Amended Petition on this ground for the reasons discussed above in connection with Respondent’s motion to strike.

Kang also moves to strike paragraphs 48 through 54 (the IIEI cause of action) and prayer for relief paragraph 4 because an IIEI claim is not cognizable when there is adequate relief in probate. The motion is DENIED AS MOOT as to these paragraphs because Kang’s demurrer was sustained to the IIEI cause of action.

Finally, Kang moves to strike paragraphs 55 to 59 and prayer for relief paragraphs 7 and 9, which he contends state a claim for claim for double damages and attorneys fees under Probate Code section 859, but he asserts they are lacking in factual support and are not legally cognizable. Kang’s motion to strike paragraphs 55 to 59 and prayer for relief paragraphs 7 and 9 is GRANTED WITH 20 DAYS’ LEAVE TO AMEND. Respondent Tanaka ’s Demurrer and Motion to Strike Objection in Docket 25PR199269 A. Respondent’s Request for Judicial Notice In support of the demurrer and motion to strike in docket 25PR199269, Respondent requests judicial notice of several of the same documents for which it was requested above in connection with the motions in docket 23PR194562.

The court GRANTS the request for judicial notice in its entirety with the same caveat noted above. B. Demurrer Respondent7 demurs to paragraphs 15 through 41 of the Objection arguing that “to the extent [they are] construed as purported causes of action or claims for affirmative relief,” they fail to state sufficient facts or are otherwise subject to demurrer on various grounds stated in section 430.10. He further demurs to the affirmative defenses stated in paragraphs 44 through

7 The court understands that, with respect to the motions filed in docket 25PR199269, Respondent is in the role of the petitioner and Petitioner is in the role of the respondent. However, the court will continue to refer to the parties as provided above.

Because Respondent provides no authority explicitly indicating that such objections are improper within a probate objection or answer, the court declines to strike these allegations. (See § 436 [“The court may . . .strike”]; see also Colden v. Broadway State Bank, supra, 11 Cal.App.2d at p. 429 [motion to strike is addressed to the sound discretion of the court].) Notably, some courts have noted, without discussion, that answers have stated defenses of failure to state a claim. (J.W. v. Watchtower Bible & Tract Society of New York, Inc. (2018) 29 Cal.App.5th 1142, 1150; Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1141.) Thus, it appears that pleading such matter in answers is somewhat common.

Within the context of the discussion regarding the “objects” language, Respondent also states, “Tanaka also seeks to strike any embedded assertions of estoppel, statute of limitations, or laches within those responses to the extent they are not separately stated as affirmative defenses and not pleaded with ultimate facts as ‘new matter.’ CCP §§ 431.30(b)-(d), (f), 436(a)-(b).” Again, Respondent is required to identify the exact portions of the Objection he is seeking to strike. (Cal. Rules of Court, rule 3.1322(a); Quantum Cooking Concepts, Inc. v. LV Assocs., Inc. (2011) 197 Cal.App.4th 927, 934 [stating that the trial court is not required to “comb the record and the law for factual and legal support that a party has failed to identify or provide”].)

Although not mentioned in the notice of motion specifically, Respondent further seeks to strike mention of the name “Phil” in the Objection. The Objection states initially, “Upon information and belief Petitioner assumed the role of trustee on April 18, 2023. Concerns have arisen regarding the involvement of Petitioner and Phil Kang (‘Phil’) in the management of Decedent’s affairs both before and after his death on November 25, 2024.” (Objection, ¶ 8.) Thereafter, it goes on to mention actions taken by Phil throughout the Objection. The court declines to strike these references as they provide background regarding Petitioner’s version of the events.

The motion to strike the Objection is DENIED in its entirety.

CONCLUSION

Respondent’s demurrer in docket 23PR194562 is SUSTAINED IN PART AND OVERRULED IN PART. The demurrer is SUSTAINED as to the two financial elder abuse causes of action, the cause of action for caregiver services, and the pay on death account cause of action WITH 20 DAYS’ LEAVE TO AMEND. The demurrer is SUSTAINED as to the IIEI cause of action WITHOUT LEAVE TO AMEND. The demurer is OVERRULED as to all other causes of action. The court requests that any second amended petition Petitioner may file clearly label the causes of action as such.

Respondent’s motion to strike in docket 23PR194562 is GRANTED IN PART AND DENIED IN PART. The motion to strike is GRANTED as to the Probate Code section 859 allegations and paragraphs 7 and 9 of the prayer for relief WITH 20 DAYS’ LEAVE TO AMEND. The motion to strike is DENIED in all other respects.

Kang’s demurrer in docket 23PR194562 is OVERRULED as to the omitted spouse cause of action and to the extent it relies on a statute of limitations argument. It is SUSTAINED WITHOUT LEAVE TO AMEND as to the IIEI cause of action. Kang’s

demurrer is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND as to the undue influence and financial elder abuse causes of action.

Kang’s motion to strike in docket 23PR194562 is GRANTED WITH 20 DAYS’ LEAVE TO AMEND paragraphs 55 to 59 and prayer for relief paragraphs 7 and 9. It is DENIED in all other responses.

Respondent’s demurrer in docket 25PR199269 is SUSTAINED as to paragraphs 15 through 41 with 20 DAYS’ LEAVE TO AMEND and otherwise OVERRULED. The motion to strike in docket 25PR199269 is DENIED in its entirety.