The Estate of David Costa

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.

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.

47 and 49 through 53 as stating insufficient factual matter to meet the pleading standard for affirmative defenses.

Petitioner argues that a demurrer to an objection in probate is procedurally improper. She concedes that Probate Code section 1000, subdivision (a) provides that where there is no applicable probate rule, the rules of civil procedure apply. But, she contends that demurrers can only be used to target complaints, cross-complaints, and answers. She points to section 430.30, which provides: (a) When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading. (b) When any ground for objection to a complaint or cross-complaint does not appear on the face of the pleading, the objection may be taken by answer. (c) A party objecting to a complaint or cross-complaint may demur and answer at the same time.

Petitioner is correct that the statutes governing demurrers do not mention expressly probate objections. But, they also do not mention probate petitions, yet demurrers may be filed to challenge petitions in probate. (Goebner v. Superior Court (2025) 110 Cal.App.5th 1105, 1111.) Accordingly, in the absence of an authority indicating that demurrers do not apply to probate objections, the court will reach the merits of the demurrer.

Respondent contends that paragraphs 15 through 41 are subject to demurrer to the extent they can be construed as causes of action. Paragraphs 15 through 41 generally assert that Respondent committed financial elder abuse against Decedent and Petitioner and caused Decedent to change his estate plan. Although the court disagrees that paragraphs 15 through 41 cannot be read to constitute causes of action because the Objection does not seek any relief based on those paragraphs, if Petitioner is intending to assert a defense based on paragraphs 15 through 41, she must make that clear. Accordingly, the demurrer to paragraphs 15 through 41 of the Objection is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

Respondent next argues that the affirmative defenses in paragraphs 44 through 47 and 49 through 53 state insufficient factual matter to meet the pleading standard for affirmative defenses. The affirmative defenses raised in those paragraphs include (1) the first affirmative defense of failure to state a claim, (2) the second affirmative defense of unclean hands, (3) the third affirmative defense, entitled “Consent and Authorization[,]” (4) the fourth affirmative defense, entitled “Marital and Community Property[,]” (5) the sixth affirmative defense of unjust enrichment, (6) the seventh affirmative defense entitled “Waiver and Acquiescence[,]” (7) the eighth affirmative defense of estoppel, (8) the ninth affirmative defense entitled “Lack of Reasonableness[,]” and (9) a second affirmative defense labelled as the ninth affirmative defense entitled “Against Public Policy[.]”

“A demurrer to an answer may be taken to the whole answer or to any one or more of the several defenses set up in the answer.” (§ 430.50, subd. (b).) “A party against whom an answer has been filed may object, by demurrer as provided in Section 430.30, to the answer upon any one or more of the following grounds: (a) The answer does not state facts sufficient to constitute a defense; (b) The answer is uncertain. As used in this subdivision, ‘uncertain’

includes ambiguous and unintelligible; and (c) Where the answer pleads a contract, it cannot be ascertained from the answer whether the contract is written or oral.” (§ 430.20.)

“The answer to a complaint shall contain: (1) The general or specific denial of the material allegations of the complaint controverted by the defendant. (2) A statement of any new matter constituting a defense.” (§ 431.30, subd. (b).) “Such ‘new matter’ is also known as ‘an affirmative defense.’ [Citation.]” (Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 812.) “The defenses shall be separately stated, and the several defenses shall refer to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished.” (§ 431.30, subd. (g).)

The court notes that it has been stated that “[a]ffirmative defenses must not be pled as ‘terse legal conclusions,’ but rather ... as facts “averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint.” ’ [Citation.]” (Quantification Settlement Agreement Cases, supra, 201 Cal.App.4th 758, 812-813, quoting FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384.)

“However, ‘[n]o error or defect in a pleading is to be regarded unless it affects substantial rights.’ [Citations.] The primary function of a pleading is to give the other party notice so that it may prepare its case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240 (Harris).) In Harris, the California Supreme Court held that the following language in an answer was sufficient to notify the defendant of the allegations against it: “ ‘[a]ny alleged adverse employment actions of which plaintiff complains ... were not based on plaintiff’s gender and/or sex, pregnancy or any other alleged discriminatory practice, but instead were based on one or more legitimate nondiscriminatory reasons.

Nor were any of the employment actions of defendant taken under pretext.’ ”

Here, the challenged affirmative defense allegations are similar. For example, the third affirmative defense alleges, “As a separate and distinct affirmative defense to the Petition and each cause of action therein, Respondent alleges that any transactions or conduct alleged occurred, if at all, with Decedent’s knowledge, consent, and authorization during his lifetime. Conduct undertaken with consent cannot, as a matter of law, constitute wrongful use, undue influence, or financial elder abuse.” Taking into account the allegations raised in the petition itself and the factual matter contained in paragraphs 15 through 41 of the Objection, this is sufficient to put Respondent on notice as to Petitioner’s affirmative defense.

The demurrer to paragraphs 44 through 47 and 49 through 53 of the Objection is OVERRULED.

The demurrer is SUSTAINED as to paragraphs 15 through 41 of the Objection WITH 20 DAYS’ LEAVE TO AMEND and OVERRULED as to paragraphs 44 through 47 and 49 through 53 of the Objection. C. Motion to Strike Respondent moves to strike portions of Petitioner’s Objection. First, Respondent seeks to strike paragraphs 15 through 41 on the ground that they are improperly seeking affirmative relief in an objection. (§ 431.30, subd. (c) [“Affirmative relief may not be claimed in the

answer.”].) This portion of the motion to strike is MOOT as the court has sustained the demurrer to those same paragraphs of the Objection.

Next, Respondent seeks to strike “[a]ny headings or subheadings introducing, incorporating, or relying upon the allegations in ¶¶ 15-41 (including references to financial elder abuse or IIEI asserted as affirmative claims)[,]” and “[a]ny request for affirmative relief (including damages or tort-type remedies) to the extent premised on or derived from ¶¶ 15- 41[.]” (Notice of Motion, p. 2:1-5.) To the extent this argument is not addressed by the ruling on the demurrer, it is rejected because Respondent has not complied with Rules of Court, rule 3.1322(a), which provides, in pertinent part, “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.”

Respondent must adequately identify the portions of the Objection he seeks to strike, rather than leaving it to the court to determine to what extent the allegations might be derived from other allegations.

Respondent also moves to strike “[t]he ‘Respondent objects...’ language and other argumentative, demurrer-style legal argument inserted in lieu of admissions/denials in Wang’s paragraph-by-paragraph responses, including those identified in the Memorandum of Points and Authorities (e.g., responses to the petition ¶¶ 20, 21, 75, 79, 80, 84, 95, 103, 110, 115, and 118), and including any embedded assertions of estoppel, statute of limitations, and laches not separately stated as affirmative defenses and not pleaded with ultimate facts as ‘new matter.’ CCP §§ 431.30(b)-(d), (f), 436(a)-(b).” (Notice of Motion, p. 2:6-12.) Within the body of the motion, Respondent indicates that this objection language appears at paragraphs “20 (Objection, p. 12:22-26), 21 (Objection, p. 12:28-13:2), 75 (Objection, p. 15:19-26), 79 (Objection, p. 17:3-18:2), 80 (Objection, p. 18:12-20), 84 (Objection, p. 18:25-19:25), 95 (Objection, p. 20:16-21:16), 103 (Objection, p. 22:8-16), 110 (Objection, p. 23:2-10), 115 (Objection, p. 23:19-24:19), and 118 (Objection, p. 25:8-26:2).” (Memorandum of Points and Authorities, p. 6:8-11.)

Here, the Objection includes a recitation of whether Petitioner admits or denies the allegations in the petition, paragraph by paragraph. (See § 431.30, subd. (f) [“The denials of the allegations controverted may be stated by reference to specific paragraphs or parts of the complaint; or by express admission of certain allegations of the complaint with a general denial of all of the allegations not so admitted; or by denial of certain allegations upon information and belief, or for lack of sufficient information or belief, with a general denial of all allegations not so denied or expressly admitted.”].)

However, in addition to simply admitting or denying the allegations, portions of the Objection state various “objections” to the allegations in the petition as well. For example, as to paragraph 75 of the petition, the Objection states, among other things, “Respondent denies the allegations in Paragraph 75 of Petitioner’s Petition. Respondent objects to this paragraph on the grounds that it is immaterial, irrelevant, conclusory, and fails to state facts sufficient to constitute a cause of action.

Respondent further objects that the allegations are legally defective to the extent they are premised on a ‘purported’ marriage or similar formulation, where Petitioner has already admitted in paragraphs 19-21 of the Petition that the marriage between Respondent and Decedent was valid as certified by a marriage certificate in Santa Clara County. Having admitted the existence of a valid marriage, Petitioner is estopped from advancing internally inconsistent allegations predicated on the absence, defect, or uncertainty of marital status.” (Objection, p. 15:18-26.)

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.