Brad Dean Sanders as Trustee of the Powell Family Trust vs. Alexander B. Sanders as Personal Representative of Estate of James Baron Sanders

Specifically, section 366.2, subdivision (a) provides:

If a person against whom an action may be brought on a liability of the person, whether arising in contract, tort, or otherwise, and whether accrued or not accrued, dies before

the expiration of the applicable limitations period, and the cause of action survives, an action may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply. “The one-year limitations period is tolled by, among other things, the timely filing of a creditor’s claim.” (Estate of Holdaway, 40 Cal.App.5th at pp. 1053-1054 [citing Code Civ. Proc., § 366.2, subd. (b)(2); Prob. Code, § 9100].) A creditor then has 90 days to bring suit after the rejection of her claim. (Prob. Code, § 9353.)

Plaintiff alleges the money at issue was transferred from Powell (who formed the Powell Family Trust) and her husband to decedent, James Baron Sanders, from 2/24/21 and 12/21/23. (Compl. ¶¶ 10, 13.) Plaintiff alleges the decedent passed away on 2/28/24, and Plaintiff filed his creditor’s claim 2/4/25. (Compl. ¶¶ 15, 17.) Defendant does not dispute the timeliness of the creditor’s claim. Thus, pursuant to Probate Code section 9352, Plaintiff’s timely filing of her claim tolled the statute of limitations “until allowance, approval, or rejection.” (Prob. Code, § 9352, subd. (a).)

Plaintiff alleges the claim was rejected on 5/29/25. (Compl. ¶ 18.) Plaintiff then brought this action within 90 days, on 8/18/25. Thus, Plaintiff’s claims are timely.

First cause of action for common count

“A common count is not a specific cause of action . . .; rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness . . . .” (Professional Collection Consultants v. Lujan (2018) 23 Cal.App.4th 685, 690 [citation omitted].)

“In California, it has long been settled the allegation of claims using common counts is good against special or general demurrers. [Citation.] “The only essential allegations of a common count are ‘(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.’” (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460 [citation omitted].)

Plaintiff alleges:

- Defendant is indebted to Plaintiff in the sum certain of $190,000.00. (Compl. ¶ 20.) - The consideration for the debt is the $190,000.00 that was paid by the Powell Family Trust to the Decedent at the Decedent’s insistence. (Compl. ¶ 21.)

As Plaintiff alleges the consideration for Defendant’s debt is the debt itself (paid to decedent), Plaintiff fails to sufficiently allege a claim for common count.

The Court SUSTAINS Defendant’s demurrer as to the first cause of action with 20 days leave to amend.

Second cause of action for fraud

“The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 [citation omitted].) Fraud must be pleaded with specificity. (Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828, 843-844 [citation omitted].

Plaintiff alleges: - Decedent made oral representations to Powell he needed money to pay for chemotherapy and targeted radiation. - Decedent’s oral representations were false as the cost of Decedent’s chemotherapy and targeted radiation were paid by private health insurance, Medicare, and/or other sources, and were made by the Decedent with knowledge of their falsity. - Decedent intended that Powell rely on the oral representations. - Powell reasonably relied on the Decedent’s oral representations by causing at least $190,000.00 to be transferred from the Powell Family Trust to the Decedent. - Powell was harmed and Powell’s reliance on Decedent’s representations was a substantial factor in causing her harm. (Compl. ¶¶ 24-29.)

These allegations are sufficient at the pleading stage.

The Court OVERRULES Defendant’s demurrer as to the second cause of action.

Third cause of action for conversion

The elements of the tort of conversation are (1) the plaintiff’s ownership or right to possession of personal property; (2) the defendant’s disposition of the property in a matter that is inconsistent with the plaintiff’s property rights; and (3) resulting damages. (Regent Alliance Ltd. v. Rabizadeh (2014) 231 Cal.App.4th 1177, 1181 [citation omitted].)

Plaintiff alleges:

- The Powell Family Trust had a right to possess $190,000.00 in funds. - Decedent substantially interfered with the $190,000.00 by taking possession of the $190,000.00. - Powell did not consent to the Decedent retaining the $190,000.00. - Powell was harmed. - Decedent’s conduct was a substantial factor in causing Plaintiff’s harm.

(Compl. ¶¶ 31-35.)

These allegations are sufficient at the pleading stage.

The Court OVERRULES Defendant’s demurrer as to the third cause of action.

Fourth cause of action for accounting

An action for an accounting has two elements: (1) “that a relationship exists between the plaintiff and defendant that requires an accounting” and (2) “that some balance is due the plaintiff that can only be ascertained by an accounting.” (Sass v. Cohen (2020) 10 Cal.5th 861, 869 [citations omitted].) “The action carries with it an inherent limitation; an accounting action ‘is not available where the plaintiff alleges the right to recover a sum certain or a sum that can be made certain by calculation.’” (Ibid. [citations omitted].)

“An action for an accounting has been characterized as ‘a means of discovery.’ This characterization is consistent with the idea that a plaintiff seeking an accounting cannot ‘allege[] the right to recover a sum certain’ because he or she lacks the information necessary to determine the precise amount that may be due.” (Ibid.)

Defendant contends Plaintiff’s claim fails as Plaintiff “has verified under penalty of perjury specific checks and specific sums of money on specific dates.” (Reply at 5:27-28.)

Plaintiff alleges “Defendant is indebted to Plaintiff in the sum certain of $190,000.00.” (Compl. ¶ 20.)

Plaintiff also alleges, however, Powell caused “at least $190,000 to be transferred” to Decedent. (Compl., ¶¶ 13, 27.) Plaintiff further alleges “[t]he amount owed by the Estate of James Baron Sanders to Plaintiff is uncertain and cannot be ascertained without an accounting.” (Compl. ¶ 38.)

“[M]odern rules of pleading generally permit plaintiffs to ‘set forth alternative theories in varied and inconsistent counts.’” (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1388 [citations omitted].)

As Plaintiff has also alleged the amount at issue was “at least $190,000,” he has sufficiently alleged an alternative theory under a cause of action for accounting.

The Court OVERRULES Defendant’s demurrer as to the fourth cause of action.

Fifth cause of action for financial elder abuse

A financial elder abuse claim lies when a person or entity “[t]akes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both,” or assists in such conduct. (Munoz v. Patel (2022) 81 Cal.App.5th 761, 782 [citing Welf. & Inst. Code, § 15610.30, subd. (a)(1), (2).])

Plaintiff alleges Powell was an elder at the time she formed the trust. (Compl. ¶ 10.) Plaintiff further alleges the decedent obtained the trust property by orally representing to Powell that he needed money to pay for chemotherapy and targeted radiation, but instead spending it on various luxuries and indulgences for himself and his son. (Compl. ¶¶ 14, 42.)

These allegations are sufficient at the pleading stage.

The Court OVERRULES Defendant’s demurrer as to the fifth cause of action. 6 25-01471349 Motion to Be Relieved as Counsel of Record

Duarte vs. Siegel- Foigelman 7 24-01403120 Motion to Disqualify Attorney of Record

Homman Holding, Inc. Plaintiff Homman Holding, Inc.’s Motion to Disqualify Defendants’ vs. Epps Counsel of Record is DENIED.

Plaintiff moves to disqualify Kutak Rock, LLP as counsel for Defendants in this action.

Legal Standard

“A court may disqualify an attorney upon ‘“a showing that disqualification is required under professional standards governing avoidance of conflicts of interest or potential adverse use of confidential information.”’” (Havasu Lakeshore Investments, LLC v. Fleming (2013) 217 Cal.App.4th 770, 777.) This authority “derives from the power inherent in every court ‘[t]o control in furtherance of justice, the conduct of its ministerial officers.’” (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145, quoting Code Civ.

Proc., § 128, subd. (a)(5); see City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 846; Beachcomber Management Crystal Cove, LLC v. Superior Court (2017) 13 Cal.App.5th 1105, 1116.) “Disqualification motions implicate several important interests, among them are the clients’ right to counsel of their choice, the attorney's interest in representing a client, the financial burden of replacing a disqualified attorney, and tactical abuse that may underlie the motion.” (Roush v.

Seagate Technology, LLC (2007) 150 Cal.App.4th 210, 218-219.)

“Although disqualification necessarily impinges on a litigant’s right to counsel of his or her choice, the decision on a disqualification motion ‘involves more than just the interests of the parties.’ [Citation.] When ruling on a disqualification motion, ‘[t]he paramount concern must be to