GEMMA MARSHALL, et al. vs MARY FORBES, et al.

1. Defendants Mary Forbes’ and Tom Forbes’ (collectively “Defendants”) Demurrer to the First Amended Complaint (“FAC”)

2. Defendants’ Motion to Strike Portions of Plaintiff’s FAC

2026CUDF060930: GEMMA MARSHALL, et al. vs MARY FORBES, et al.

Tentative:

1. Defendant Mary Forbes’ Demurrer to each of the first, second, and fourth causes of action of the FAC is OVERRULED.

2. Defendant Mary Forbes’ Demurrer to the third cause of action is SUSTAINED, with leave to amend.

3. Defendant Tom Forbes’ Demurrer to each of the first, second, third and fourth causes of action of the FAC is SUSTAINED, with leave to amend. None of the first through fourth causes of action are asserted against Tom Forbes.

4. Defendant Mary Forbes’ Motion to Strike Portions of Plaintiff’s FAC is DENIED as to paragraphs 19, 21, 25, 38 (erroneously numbered 36) and paragraphs 2, 4, and 8 of the Prayer of the FAC.

5. Defendant Tom Forbes’ Motion to Strike Portions of Plaintiff’s FAC is GRANTED in its entirety, with leave to amend. Plaintiff has not alleged any action taken or statement made by Tom Forbes that would support a prayer for punitive damages.

Plaintiff is granted leave to file and serve a Second Amended Complaint on or before June 22, 2026.

Plaintiff shall provide notice.

Timeliness of FAC

Although the FAC was untimely filed, Defendants have substantively addressed the FAC through their demurrer and motion to strike, which have been fully briefed. The Court addresses the demurrer and motion to strike on their merits.

DEMURRER BY MARY FORBES

1. Statute of Limitations

Defendant contends each of the first through fourth causes of action are barred by the applicable statute of limitations because Plaintiff was put on constructive or inquiry notice of the alleged fraudulent concealment at least by 2020.

“A plaintiff must bring a claim within the limitations period after accrual of the cause of action.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806 (“Fox”).) The “discovery rule” postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. (Id.) “In order to rely on the discovery rule for delayed accrual of a cause of action, ‘[a] plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.’ [Citation.] In

2026CUDF060930: GEMMA MARSHALL, et al. vs MARY FORBES, et al.

assessing the sufficiency of the allegations of delayed discovery, the court places the burden on the plaintiff to ‘show diligence’; ‘conclusory allegations will not withstand demurrer.’ [Citation.]” (Fox, supra, 35 Cal.4th at p. 808.)

Plaintiff alleges that subsequent to Jean Allison’s death, she sought an accounting from Defendant, which was delayed by Defendant’s representations that the information was lost, disposed of, or otherwise unavailable; that she was unable to put together the accounting because she was suffering from depression; that she could not recall the various bank accounts that had been opened; and that she was overwhelmed by the process. (FAC, ¶ 16.) Plaintiff trusted Defendant, was supportive of her mental health, and did not press her or continue her efforts to reconcile her advances with her sister’s expenditures. (FAC, ¶¶ 12-13, 16.)

Plaintiff was totally and completely unaware of Defendant’s alleged activities until June 2024 when her mother’s caregiver provided information to her that forms the subject of this FAC. (FAC, ¶18.) These allegations are sufficient at the pleading stage to show both the time and manner of discovery as well as the inability to have made earlier discovery despite reasonable diligence and are sufficient to withstand the challenge of the bar of the statute of limitations.

2. Fraudulent Concealment and Breach of Fiduciary Duty (First and Second Causes of Action)

Defendant asserts that Plaintiff has not alleged sufficient facts to show Mary Forbes had a duty to disclose facts because she was not in a fiduciary relationship with Plaintiff and further, that Plaintiff has not alleged sufficient facts to show she intended to defraud the Plaintiff by intentionally concealing or suppressing facts. (See Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1, 40.) The Court is not persuaded.

“[B]efore a person can be charged with a fiduciary obligation, he must either knowingly undertake to act on behalf and for the benefit of another or must enter into a relationship which imposes that undertaking as a matter of law.” (City of Hope Nat.. Med. Ctr. v. Genentech (2008) 43 Cal.4th 375, 386; see also Oakland Raiders v. National Football League (2005) 131 Cal. App. 4th 621, 632.) A fiduciary duty is founded upon a special relationship imposed by law or under circumstances in which “confidence is reposed by persons in the integrity of others” who voluntarily accept the confidence. (Tri-Growth Centre City, Ltd. v. Silldorf, Burdman, Duignan & Eisenberg (1989) 216 Cal.App.3d 1139, 1150; See also Richelle L. v. Roman Catholic Archbishop (2003) 106 Cal.App.4th 257)

While Plaintiff asserts that a fiduciary relationship is not required to establish a cause of action for fraudulent concealment, the Court need not address that contention because Plaintiff has alleged sufficient facts at the pleading stage to establish a fiduciary relationship between the parties and that Defendant had a duty to Plaintiff to utilize the funds advanced as promised, rather than for her own benefit. In ruling on a demurrer, the Court must accept as true the facts alleged as well as those that may be inferred from those expressly alleged. (Cundiff v. GTE Cal. Inc. (2002) 101 Cal.App.4th 1395, 1405.) Plaintiff has alleged that she entrusted money to Defendant for a specific purpose and that Defendant represented she would utilize the funds received for that specific purpose. These allegations are sufficient, at the pleading stage, to establish an agency relationship.

2026CUDF060930: GEMMA MARSHALL, et al. vs MARY FORBES, et al.

(FAC, ¶¶ 9-13.) Plaintiff has also alleged sufficient facts to show intent to defraud and a breach of her fiduciary duty to Plaintiff. (FAC, ¶¶ 17-18, 21.)

Accordingly, the Demurrer to each of the first and second causes of action is OVERRULED.

3. Money Had and Received (Third Cause of Action)

An action for money had and received will lie to recover money paid by “’A cause of action for money had and received is stated if it is alleged [that] the defendant ‘is indebted to the plaintiff in a certain sum “for money had and received by the defendant for the use of the plaintiff.” ’ ...” [Citations]. The claim is viable ‘ “ wherever one person has received money which belongs to another, and which in equity and good conscience should be paid over to the latter.” ’ [Citation].” (Avidor v. Sutter’s Place, Inc. (2013) 212 Cal.App.4th 1439, 1454.)

Plaintiff alleges she provided funds to Defendant to be used for the specific purpose of caring for their mother and that Defendant received the money and diverted not less than $450,000 for personal use rather than the agreed upon purpose for which Plaintiff gave it. (FAC, ¶ 27.) Plaintiff has not alleged facts to show that the funds were for her use. Therefore, the Demurrer to the third cause of action is SUSTAINED, with leave to amend.

4. 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 citing Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 179.) “An action for accounting is not available where the plaintiff alleges the right to recover a sum certain or a sum that can be made certain by calculation. [Citation]. A plaintiff need not state facts that are peculiarly within the knowledge of the opposing party.” (Ibid.)

As discussed above, Plaintiff sufficiently alleges facts, at this stage, to support the existence of a fiduciary relationship between the parties and fiduciary duty that requires an accounting. In addition, Plaintiff alleges she has sought to reconstruct the spending done by Defendant to no avail. (FAC, ¶¶ 15-16, 29.) Thus, Plaintiff now seeks an accounting of the disbursed funds used for her mother’s care. (FAC, ¶ 30.) She does not know the balance owing but alleges it is not less than $450,000.00. This is sufficient for purposes, at the pleading stage, to allege the cause of action for accounting. The Demurrer to the fourth cause of action is OVERRULED.

MOTION TO STRIKE

1. Mary Forbes’ Motion to Strike

The Court DENIES the motion to strike paragraphs 19, 21, 25, 38 (erroneously numbered 36) and paragraphs 2, 4, and 8 of the Prayer of the FAC. Civil Code section 3294, subdivision (a) provides that a defendant must have "been guilty of oppression, fraud or malice" in order for a plaintiff to recover punitive damages from that defendant. Claims for punitive damages must be pleaded with

2026CUDF060930: GEMMA MARSHALL, et al. vs MARY FORBES, et al.

some factual specificity, and conclusory allegations such as that the defendant acted with “oppression, fraud and malice” will not be sufficient, by themselves, to support a claim for punitive damages. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) However, conclusory allegations may be sufficient when the complaint, taken as a whole, provides a sufficient factual context for those allegations. (Perkins v. Sup. Ct. (1981) 117 Cal.App.3d 1, 6-7.) The Court finds the FAC alleges sufficient specific facts constituting willful conduct undertaken with a conscious disregard of Plaintiff’s rights all of which a reasonable trier of fact could find was despicable within the meaning of Civil Code section 3294. (FAC, ¶¶ 9-14, 17-18, 23-24, 32-34.)

These allegations are sufficient to support the prayer for punitive damages on a theory of malice, oppression, or fraud within the meaning of Civil Code section 3294.

2. Tom Forbes’ Motion to Strike

Tom Forbes’ Motion to Strike is GRANTED, with leave to amend. Plaintiff has not alleged any action taken or statement made by Tom Forbes that would support a prayer for punitive damages.

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