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DO we NAH Bw HY =
CHRISTINE A. BENNETT
3209 Spring Brook Ct.
Oceanside, CA 92058 ELECTRONICALLY
Telephone: (760) 458-1571 FILED
Superior Court of California,
IN PRO PER County of San Frandisco
04/20/2018
Clerk of the C
BY: DAVID YUEN
Depu
SUPERIOR COURT OF THE STATE OF CALIFORNIA
CITY & COUNTY OF SAN-DIEGO-
SAN FRANCISCO
CHRISTINE. A. BENNETT, Case No. CGC-18-564938
PLAINTIFF’S OPPOSITION TO
DEMURRER
Plaintiff,
vs.
THOMAS LUCAS, and DOES 1 through 40
inclusive,
Date: May 2, 2018
Time: 9:30 a.m.
Dept: 302
Defendants.
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L INTRODUCTION AND SUMMARY OF FACTS
Plaintiff Christine Bennett, pursuant to the terms of the trust at issue, has an interest in the
trust after Carol Ann Spinale’s exercise of the limited power of appointment. On June 12, 2017,
pursuant to the Sixth Amendment, the Seventh Amendment, and California Probate Code § 652,
Carol Ann Spinale exercised her limited power of appointment and appointed 100% of the Trust
Estate to Plaintiff. Plaintiff is not the life partner of Ms. Spinale. Her rights are separate and
distinct from Ms. Spinale and Ms. Spinale’s rights are not a mere transfer of her rights to
Plaintiff.
In his Demurrer, Defendant talks in generalities and makes incorrect assertions before the
court, Namely, Defendant wrongly indicates that Ms. Spinale had a mental health diagnosis, that
a prior court superseded the Sixth Amendment to the trust at issue, and that Plaintiff has no
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PLAINTIFF'S OPPOSITION TO DEMURRER
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interest in the trust or its real property. Defendant's incorrect assertions fortunately can be
overridden by facts and Defendant’s lack of evidence.
Further, Defendant incorrectly asserts that there is collateral estoppel effect as the court
ruled against Ms. Spinale on all issues. This is incorrect and Plaintiff, after the exercise of the
limited power of appointment, presents new issues before the court through her filing of her
complaint. And, there was the causes of action before the court were not actually litigated
against Defendant.
This Court should deny Defendant Demurrer in its entirety.
IL, LEGAL STANDARDS FOR DEMURRERS
Here are parts of the standards for demurrers that are essential to this motion:
“In reviewing the sufficiency of a complaint against a general
demurrer, we are guided by long-settled rules. “We treat the demurrer as
admitting all material facts properly pleaded, but not contentions,
deductions or conclusions of fact or law .... We also consider matters
which may be judicially noticed.’ ... Further, we give the complaint a
reasonable interpretation, reading it as a whole and its parts in their
context, [Citation omitted]. The complaint must be liberally construed and
given a reasonable interpretation, with a view to substantial justice between
the parties. [Citation omitted.] We treat as true not only the complaint’s
material factual allegations, but also facts that may be implied or inferred
from those expressly alleged.”
(Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 132 Cal.App.4th
1106, 1111-1112.) California Code of Civil Procedure § 452 mandates that a pleading is to be
liberally construed for purposes of determining its effect “with a view to substantial justice
between the parties.” Where the defect raised by a motion to strike or by demurrer is reasonably
capable of cure, “leave to amend is routinely and liberally granted to give the plaintiff a chance
to cure the defect in question.” (CLD Construction, Inc. v, City of San Ramon (2004) 120
Cal.App4th 1141, 1146 (citation omitted).) “It is generally an abuse of discretion to deny leave
to amend, because the drastic step of denial of the opportunity to correct the curable defect
effectively terminates the pleader’s action.” (/d.) “[I]t is error fora ... court to sustain a
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PLAINTIFF’S OPPOSITION TO DEMURRERdemurrer when the plaintiff has stated a cause of action under any possible legal theory.” (Fox v.
Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 810 (citation omitted).) "[T]t is [also] an
abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a
reasonable possibility [that the] defect .. . can be cured by amendment." (/d. (citations omitted).)
In addition, the function of a demurrer is to test the sufficiency of a pleading by raising
questions of law. (See Cal. Code of Civ. Proc. § 589(a); Andal v. City of Stockton (2006) 137
Cal.App.4th 86, 90.) A demurrer is directed to the face of the pleading to which objection is
made and to matters subject to judicial notice. (Cal. Code of Civ, Proc. § 430.30(a); Ricard v.
Grobstein, Goldman, Stevenson, Siegel, LeVine & Mangel (1992) 6 Cal.App.4th 157, 160). The
question raised by a demurrer to the complaint is simply whether it alleges sufficient facts to
state a cause of action. (Gervase v. Superior Court (1995) 31 Cal.App.4th 1218, 1224.) Ona
demurrer, the Court should rule only on matters disclosed in the challenged pleading. (Jon
Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) The other parties’ pleadings cannot
dictate the outcome.
A demurrer does not test the sufficiency of the evidence or other matters outside the
pleading to which it is directed. (Four Star Electric, Ine, v. F & H Constr, (1992) 7 Cal.App.4th
1375, 1379.) It challenges only the legal sufficiency of the affected pleading, not the truth of the
factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v.
GTE Cal. Inc. (2002) 101 Cal. App.4th 1395, 1404-1405.) A demurrer is not the proper
procedure for determining the truth of disputed facts, such as the correct interpretation of the
parties’ agreement or its enforceability. (Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148
Cal.App.4th 97, 113-114.)
Il. ARGUMENT
A. Plaintiff Has Standing To Bring This Action,
Standing is a threshold legal matter to be decided by the court. (Mercury Interactive
Corp. vs. Klein (2007) 158 Cal.App.4th 60, 103.) Because it is a fundamental threshold issue,
allegations supporting standing “should be direct and unequivocal and not inferential [citation]”
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PLAINTIFF’S OPPOSITION TO DEMURRERoR Se N Dw B&B wWN
(Kline Hawkes California SBIC, L.P. vs. Superior Court (2004) 117 Cal-App.4th 183, 194), and
may be challenged at any time. (Troyk vs. Farmers Group, Inc, (2009) 171 Cal.App.4th 1305,
1345.)
A named plaintiff or cross-complainant generally must have standing to prosecute an
action. California Civil Code § 367 states “[e]very action must be prosecuted in the name of the
real party in interest, except as otherwise provided by statute.”) “‘A real party in interest
ordinarily is defined as the person possessing the right sued upon by reason of the substantive
law.’ [Citation.]” (Redevelopment Agency of San Diego vs. San Diego Gas & Eleciric Co.
(2003) 111 Cal.App.4th 912, 920-921 (Redevelopment).) Stated otherwise, “[t]he existence of
standing generally requires that the plaintiff, or cross-complainant be able to allege injury, ie.,
an invasion of his legally protected interests.” (Surrey vs. True Beginnings (2008) 168
Cal.App.4th 414, 417 (Surrey).) “The real party in interest has “‘an actual and substantial
interest in the subject matter of the action,” and stands to be “benefited or injured” by a judgment}
in the action.” [Citation.]” (Fladeboe vs. American Isuzu Motors Inc. (2007) 150 Cal.App.4th
42, 54-55 (Fladeboe).)
1. Plaintiff, After the Limited Power of Appointment Was Exercised,
Has Standing to Sue.
A limited power of appointment is exercisable only in favor of “the person or class
specified in the instrument creating the power.” (Giammarrusco v, Simon (2009) 171
Cal.App.4th 1586, 1595 (citing Black's Law Dict., supra, at p. 1209, col. 2).) As seen by the
Complaint, on June 12, 2017, pursuant to the Sixth Amendment, the Seventh Amendment, and
California Probate Code § 652, Carol Ann Spinale exercised her limited power of appointment
and appointed 100% of the Trust Estate to Christine A. Bennett. For standing purposes,
California Probate Code § 48(a)(1) states that in “interested person” includes any of the
following: “An heir, devisee, child, spouse, creditor, beneficiary, and any other person having a
property right in or claim against a trust estate or the estate of a decedent which may be affected
by the proceeding.” (emphasis added). Section 48 “permits the court to designate as an
interested person anyone having an interest in an estate.” (Estate of Sobol (2014) 225
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PLAINTIFF'S OPPOSITION TO DEMURRERoD eI DAHA BBN
Cal.App.4th 771, 782 (citations omitted).) And, the court “has flexibility in determining whether
to permit a party to participate as an interested party.” (/d.; see also Tepper v. Wilkins (2017) 10
Cal.App.Sth 1198, 1206.) Here, it is evident that the limited power of appointment was
exercised thereby giving Plaintiff standing to sue and to bring the present action. Defendant's
arguments against standing are unavailing and are based on conjecture and no evidence.
2. Carol Ann Spinale Had The Mental Capacity To Exercise Her
Limited Power of Appointment.
At no time in any probate proceeding has Defendant ever mentioned, argued against, or
discussed the limited power of appointment. (Bennett Decl., { 3.) Defendant can point to no
court order that has a ruling regarding the limited power of appointment. Defendant makes
statements of conjecture and untrue facts regarding Ms. Spinale in the present Demurrer before
the court.
Defendant states that as a result of a mental health diagnosis, Ms. Spinale has been
determined to be disabled and is receiving public benefits. Defendant further states that because
of this diagnosis the settlors of the trust changed the trust. These statements are false and
inaccurate on many levels and are not supported by evidence, First, Ms. Spinale was never
diagnosed with a mental health issue, As indicated by Ms. Spinale’s doctor, less than two
months before Ms. Spinale exercised the limited power of appointment, Ms. Spinale “is alert and
oriented as to time, person, and place. She can make her own medical and financial decisions.”
(Spinale Decl., Ex. A.) Second, the Special Needs Trust at issue in the trust was created to
protect her disability benefits not because she had a mental health diagnosis. (Bennett Decl., Ex.
A, Fifth Amendment, p._1_.) Ms. Spinale helped care for her parents and worked with them
prior to the death of her mother Rina Spinale in April 2008. (Spinale Decl., { 3.) Third, nothing
is stated in the trust that Ms. Spinale had a mental health diagnosis. Defendant offers no
evidence that Defendant had a mental health diagnosis that may affect her right to exercise her
limited power of appointment. For this reason, Defendant’s indications regarding any mental
health diagnosis should not be considered with the Demurrer.
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Fourth, and most importantly, there is “a rebuttable presumption ... that all persons have
the capacity to make decisions and to be responsible for their actions or decisions.” (Cal.
Probate Code § 810(a).) “[A] person who has a mental or physical disorder may still be capable
of contracting, conveying, marrying, making medical decisions, executing wills or trusts, and
performing other actions.” (Cal. Probate Code § 810(b) (emphasis added).) Only a judicial
determination that Ms. Spinate lacked the legal capacity to exercise the limited power of
appointment can overturn the appoiniment to Plaintiff. (See Cal. Probate Code § 810(c).) And,
any deficit that supports the lack of capacity must be based on evidence and not conjecture. (See
id.) Here, Defendant provides no evidence that Ms. Spinale was diagnosed with a mental health
issue. Rather, Ms. Spinale’s very own doctor indicated that she “is alert and oriented as to time,
person, and place” and “can make her own medical and financial decisions.” (Spinale Decl., Ex.
A.) As such, Defendant’s references to such should be disregarded.
3. The Previous Court Order, The Attorney That Drafted The
Seventh Amendment, and The Trust Itself Supports the Validity
of Ms. Spinale’s Exercise of The Limited Power of Appointment.
In his Demurrer, Defendant argues that the trust amendment that Plaintiff relies on (the
Sixth Amendment, attached at Exhibit A to Bennett Declaration, was superseded by the probate
court. This is not true and Defendant is making an incorrect assessment before this court.
Defendant relies on the September 8, 2017 Order Granting Petition Pursuant to Probate Code §
850 when making this argument. (Request for Judicial Notice in Support of Demurrer, Ex. C.)
Specifically, the central paragraph (4 13) to consider for this argument states:
“The Amendment titled “Seventh Amendment to The Spinale Family
Trust’ and dated October 2, 2007 controls the distribution of the Trust. Under that
amendment a special needs trust is created for the benefit of Carol Ann Spinale,
funded by the entire residue of the Trust. The Trust creates no ownership interest
nor lender’s interest for Carol Ann Spinale in the real property located at 625
Avalon Street, San Francisco, California.”
As is clear from paragraph 13, (1) there is no mention of Ms, Spinale’s exercise of the
limited power of appointment, and (2) there is no mention that the Sixth Amendment to the trust
has been superseded. Paragraph 13 merely states that the Seventh Amendment controls the
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distribution of the trust. As indicated below, the Seventh Amendment ratified the terms of the
Sixth Amendment.
On page 5 of the Seventh Amendment, it specifically states” “Ratification of Other Term:
of Trust. In every other respect, the settlor confirms and ratifies the terms of the trust as stated in
that certain declaration dated November 20, 1990, and all subsequent amendments.” (Bennett
Decl., Ex. A; see also Attorney Lieberman Declaration filed on August 11, 2017 attached to
Request for Judicial Notice in Support of Opposition to Demurrer (“RFIN for Opposition”).)
This makes it clear that nothing changed in the Sixth Amendment when the Seventh Amendment
was drafted and that the Sixth Amendment was not superseded. This interpretation falls in line
with the court’s September 8, 2017 Order.
The relevant terms of the Sixth Amendment stated that Carol Ann Spinale could exercise
a limited power of appointment to “anyone other than herself, her estate, her creditors or
creditors of her estate.” (Exhibit B to Compliant, Sixth Amendment, Art. IL], ]6.A.2.) The
Sixth Amendment further states that “[t]his power of appointment can be exercised by Carol Ann
Spinale during her life or upon her death.” (Exhibit B to Complaint, Sixth Amendment, Art. III, {]
6.A.2.) Pursuant to the very terms of the September 8, 2017 Order and the ratification of other
terms pursuant to the Seventh Amendment, the limited power of appointment is effective and
valid. The court’s September 8, 2017 Order did not supersede the Sixth Amendment as
incorrectly asserted by Defendant. This interpretation is supported by the attorney who drafted
the Seventh Amendment of the trust at issue. (See Attorney Lieberman Declaration, RFJN for
Opposition, {[ 2-5.) Based on Attorney Lieberman's review of the case file and looking at the
Seventh Amendment, there is nothing to indicate “any intent on the part of [the settlors] to
change any terms of the Sixth Amendment [] .. except giving Joe Michael Spinale’s share to
Carol Anne Spinale.” Ud., 94)
B. There is No Collateral Estoppel or Claim Preclusion Effect and This
Suit Is Not A “Rehash” of Previous Litigated Claims,
Again, this is not true and Defendant is making an incorrect assessment before this court.
There is-no collateral estoppel or claim preclusion effect on the claims in this pending lawsuit.
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PLAINTIFF'S OPPOSITION TO DEMURRERCauses of action for breach of fiduciary duty, professional negligence, unfair competition, quiet
title, and declaratory relief have not been actually litigated before the court.' A dismissal of Ms.
Spinale’s civil case does not mean that claims were actually litigated before the court. There
‘were no witnesses and no trial of the very issues that are the bases of the present causes of action.
Defendant’s argument in his Demurrer seems to stem from the ownership aspect of the real
property at issue. The ownership of the real property has nothing to do with Defendant's breach
of fiduciary duty, professional negligence, and unfair competition in his administration of his
duties as a trustee. Indeed, Defendant is attempting to sell the real property at a price that will
continue to squander the assets of the trust.
More importantly, the cause of action for unlawful competition and the wrongful attempt
to sell the real estate property for a price lower than what it is worth were not discussed or before’
the court in Ms. Spinale’s civil action. At the very least, these issues are not subject to collateral
estoppel or claim preclusion — these issues were not actually litigated.
Plaintiff's claims are separate, distinct, and her own and the claims presented before the
court were never ruled on by the court. Again, as incorrectly stated by Defendant, there is no
transfer of claims by Ms. Spinale. Rather, Plaintiff has her own independent standing as
indicated by Section A above. For the sake of argument, even assuming that similar arguments
were brought forward in Ms. Spinale’s civil suit, Plaintiff would be an indispensable party so
that she would have had to be added to the civil suit. Indeed, California Code of Civil Procedure
§ 389(a) specifically states:
A person who is subject to service of process and whose joinder will not
deprive the court of jurisdiction over the subject matter of the action shall be
joined as a party in the action if (1) in his absence complete relief cannot be
accorded among those already parties or (2) he claims an interest relating to the
subject of the action and is so situated that the disposition of the action in his absence
may (i) as a practical matter impair or impede his ability to protect that interest or
(ii) leave any of the persons already parties subject to a substantial risk of incurring
' Plaintiff asserts that Carol Ann Spinale has a life estate in the real property at issue in this action|
and this life estate was not at issue before the court on September 8, 2017. The September 8, 2017 Order
does not mention any interest relative to a life estate.
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PLAINTIFF'S OPPOSITION TO DEMURRERdouble, multiple, or otherwise inconsistent obligations by reason of his claimed
interest. If he has not been so joined, the court shall order that he be made a party.
And, the September 8, 2017 Order says nothing about Plaintiff or a limited power of
appointment from challenging Defendant’s actions. (Request for Judicial Notice in Support of
Demurrer, Ex. C.) Indeed, the court specifically crossed out language on the [proposed] order
that stated: “... any additional or subsequent recordations by Carol Ann Spinale which purport to
affect 625 Avalon Avenue, San Francisco, California are ineffective and invalid from their
recordation.” (Request for Judicial Notice in Support of Demurrer, Ex. C, p. 4, 47.)
As such, this court should allow Plaintiff's claims to go forward and the Demurrer
should be denied.
& The Complaint Was Not Filed For the Sole Purpose of Delay and
Plaintiff Has a Right to Preserve Her Rights.
Contrary to Defendant's contentions, this complaint was not filed solely for the purpose
of delay. Plaintiff, now having an interest in the trust, has a right to protect her rights and
interests in the trust property. This case is not about the actions of Carol Ann Spinale but about
Plaintiff's rights in the trust property. The filing of this lawsuit was not to frustrate the rights of
the probate court. The courts are to do whatever is necessary and appropriate, even in the
absence of controlling legislation, to ensure the prompt, fair, and orderly administration of justice.
(Neary vs. Regents of University af California (1992) 3 Cal.4th 273, 276.) And here, Plaintiff is
asking that this Court administer justice and allow her to pursue her claims. Defendant is presently
attempting to sell the real property in the trust in violation of California Probate Code §§ 16002,
16004(a), 16006, and 16007. This is only one of the many breaches that Defendant has
committed against the trust — he has and continues to squander assets of the trust. And, Plaintiff
has a right to contest the actions of Defendant. (Cal. Code of Civ. Proc. § 389(a).)
D. In The Alternative, Plaintiff Requests Leave to Amend the Complaint on
An Evidentiary Hearing on the Issue of the Seventh Amendment.
Where the defect raised by a motion to strike or by demurrer is reasonably capable of
cure, “leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the
defect in question.” (CED Construction, Inc,, supra, 120 Cal.App.4th at p. 1146 (citation
omitted).) “[I]t is error for a ... court to sustain a demurrer when the plaintiff has stated a cause
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PLAINTIFF'S OPPOSITION TO DEMURRERoD we NAH BW Ye
of action under any possible legal theory.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th
797, 810 (citation omitted).) Here, Plaintiff has stated a cause of action for numerous causes of
action, including unfair competition and the wrongful attempt to sell the real estate property for a
price lower than what it is worth. In the alternative, Plaintiff requests leave to amend the
complaint to cure any deficiencies.
IV. CONCLUSION
For the aforementioned reasons, Plaintiff requests that Defendant's Demurrer be denied in
its entirety. In the alternative, Plaintiff requests leave to amend the Complaint to cure any
deficiencies.
DATED: April 20, 2018
CHRISTINE A. Bi
In Pro Per
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PLAINTIFF'S OPPOSITION TO DEMURRER
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DO we NAH Bw HY = CHRISTINE A. BENNETT 3209 Spring Brook Ct. Oceanside, CA 92058 ELECTRONICALLY Telephone: (760) 458-1571 FILED Superior Court of California, IN PRO PER County of San Frandisco 04/20/2018 Clerk of the C BY: DAVID YUEN Depu SUPERIOR COURT OF THE STATE OF CALIFORNIA CITY & COUNTY OF SAN-DIEGO- SAN FRANCISCO CHRISTINE. A. BENNETT, Case No. CGC-18-564938 PLAINTIFF’S OPPOSITION TO DEMURRER Plaintiff, vs. THOMAS LUCAS, and DOES 1 through 40 inclusive, Date: May 2, 2018 Time: 9:30 a.m. Dept: 302 Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) L INTRODUCTION AND SUMMARY OF FACTS Plaintiff Christine Bennett, pursuant to the terms of the trust at issue, has an interest in the trust after Carol Ann Spinale’s exercise of the limited power of appointment. On June 12, 2017, pursuant to the Sixth Amendment, the Seventh Amendment, and California Probate Code § 652, Carol Ann Spinale exercised her limited power of appointment and appointed 100% of the Trust Estate to Plaintiff. Plaintiff is not the life partner of Ms. Spinale. Her rights are separate and distinct from Ms. Spinale and Ms. Spinale’s rights are not a mere transfer of her rights to Plaintiff. In his Demurrer, Defendant talks in generalities and makes incorrect assertions before the court, Namely, Defendant wrongly indicates that Ms. Spinale had a mental health diagnosis, that a prior court superseded the Sixth Amendment to the trust at issue, and that Plaintiff has no “de PLAINTIFF'S OPPOSITION TO DEMURRER urt ClerkSO MeN DH BY we RP MPN YN KR ND YN | BY Fe BF Fe Be Be ee ery AwA SF RNH HK SCT eA IA AA BHR = interest in the trust or its real property. Defendant's incorrect assertions fortunately can be overridden by facts and Defendant’s lack of evidence. Further, Defendant incorrectly asserts that there is collateral estoppel effect as the court ruled against Ms. Spinale on all issues. This is incorrect and Plaintiff, after the exercise of the limited power of appointment, presents new issues before the court through her filing of her complaint. And, there was the causes of action before the court were not actually litigated against Defendant. This Court should deny Defendant Demurrer in its entirety. IL, LEGAL STANDARDS FOR DEMURRERS Here are parts of the standards for demurrers that are essential to this motion: “In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law .... We also consider matters which may be judicially noticed.’ ... Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context, [Citation omitted]. The complaint must be liberally construed and given a reasonable interpretation, with a view to substantial justice between the parties. [Citation omitted.] We treat as true not only the complaint’s material factual allegations, but also facts that may be implied or inferred from those expressly alleged.” (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 132 Cal.App.4th 1106, 1111-1112.) California Code of Civil Procedure § 452 mandates that a pleading is to be liberally construed for purposes of determining its effect “with a view to substantial justice between the parties.” Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, “leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v, City of San Ramon (2004) 120 Cal.App4th 1141, 1146 (citation omitted).) “It is generally an abuse of discretion to deny leave to amend, because the drastic step of denial of the opportunity to correct the curable defect effectively terminates the pleader’s action.” (/d.) “[I]t is error fora ... court to sustain a -2- PLAINTIFF’S OPPOSITION TO DEMURRERdemurrer when the plaintiff has stated a cause of action under any possible legal theory.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 810 (citation omitted).) "[T]t is [also] an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility [that the] defect .. . can be cured by amendment." (/d. (citations omitted).) In addition, the function of a demurrer is to test the sufficiency of a pleading by raising questions of law. (See Cal. Code of Civ. Proc. § 589(a); Andal v. City of Stockton (2006) 137 Cal.App.4th 86, 90.) A demurrer is directed to the face of the pleading to which objection is made and to matters subject to judicial notice. (Cal. Code of Civ, Proc. § 430.30(a); Ricard v. Grobstein, Goldman, Stevenson, Siegel, LeVine & Mangel (1992) 6 Cal.App.4th 157, 160). The question raised by a demurrer to the complaint is simply whether it alleges sufficient facts to state a cause of action. (Gervase v. Superior Court (1995) 31 Cal.App.4th 1218, 1224.) Ona demurrer, the Court should rule only on matters disclosed in the challenged pleading. (Jon Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) The other parties’ pleadings cannot dictate the outcome. A demurrer does not test the sufficiency of the evidence or other matters outside the pleading to which it is directed. (Four Star Electric, Ine, v. F & H Constr, (1992) 7 Cal.App.4th 1375, 1379.) It challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v. GTE Cal. Inc. (2002) 101 Cal. App.4th 1395, 1404-1405.) A demurrer is not the proper procedure for determining the truth of disputed facts, such as the correct interpretation of the parties’ agreement or its enforceability. (Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97, 113-114.) Il. ARGUMENT A. Plaintiff Has Standing To Bring This Action, Standing is a threshold legal matter to be decided by the court. (Mercury Interactive Corp. vs. Klein (2007) 158 Cal.App.4th 60, 103.) Because it is a fundamental threshold issue, allegations supporting standing “should be direct and unequivocal and not inferential [citation]” -3- PLAINTIFF’S OPPOSITION TO DEMURRERoR Se N Dw B&B wWN (Kline Hawkes California SBIC, L.P. vs. Superior Court (2004) 117 Cal-App.4th 183, 194), and may be challenged at any time. (Troyk vs. Farmers Group, Inc, (2009) 171 Cal.App.4th 1305, 1345.) A named plaintiff or cross-complainant generally must have standing to prosecute an action. California Civil Code § 367 states “[e]very action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.”) “‘A real party in interest ordinarily is defined as the person possessing the right sued upon by reason of the substantive law.’ [Citation.]” (Redevelopment Agency of San Diego vs. San Diego Gas & Eleciric Co. (2003) 111 Cal.App.4th 912, 920-921 (Redevelopment).) Stated otherwise, “[t]he existence of standing generally requires that the plaintiff, or cross-complainant be able to allege injury, ie., an invasion of his legally protected interests.” (Surrey vs. True Beginnings (2008) 168 Cal.App.4th 414, 417 (Surrey).) “The real party in interest has “‘an actual and substantial interest in the subject matter of the action,” and stands to be “benefited or injured” by a judgment} in the action.” [Citation.]” (Fladeboe vs. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 54-55 (Fladeboe).) 1. Plaintiff, After the Limited Power of Appointment Was Exercised, Has Standing to Sue. A limited power of appointment is exercisable only in favor of “the person or class specified in the instrument creating the power.” (Giammarrusco v, Simon (2009) 171 Cal.App.4th 1586, 1595 (citing Black's Law Dict., supra, at p. 1209, col. 2).) As seen by the Complaint, on June 12, 2017, pursuant to the Sixth Amendment, the Seventh Amendment, and California Probate Code § 652, Carol Ann Spinale exercised her limited power of appointment and appointed 100% of the Trust Estate to Christine A. Bennett. For standing purposes, California Probate Code § 48(a)(1) states that in “interested person” includes any of the following: “An heir, devisee, child, spouse, creditor, beneficiary, and any other person having a property right in or claim against a trust estate or the estate of a decedent which may be affected by the proceeding.” (emphasis added). Section 48 “permits the court to designate as an interested person anyone having an interest in an estate.” (Estate of Sobol (2014) 225 24s PLAINTIFF'S OPPOSITION TO DEMURRERoD eI DAHA BBN Cal.App.4th 771, 782 (citations omitted).) And, the court “has flexibility in determining whether to permit a party to participate as an interested party.” (/d.; see also Tepper v. Wilkins (2017) 10 Cal.App.Sth 1198, 1206.) Here, it is evident that the limited power of appointment was exercised thereby giving Plaintiff standing to sue and to bring the present action. Defendant's arguments against standing are unavailing and are based on conjecture and no evidence. 2. Carol Ann Spinale Had The Mental Capacity To Exercise Her Limited Power of Appointment. At no time in any probate proceeding has Defendant ever mentioned, argued against, or discussed the limited power of appointment. (Bennett Decl., { 3.) Defendant can point to no court order that has a ruling regarding the limited power of appointment. Defendant makes statements of conjecture and untrue facts regarding Ms. Spinale in the present Demurrer before the court. Defendant states that as a result of a mental health diagnosis, Ms. Spinale has been determined to be disabled and is receiving public benefits. Defendant further states that because of this diagnosis the settlors of the trust changed the trust. These statements are false and inaccurate on many levels and are not supported by evidence, First, Ms. Spinale was never diagnosed with a mental health issue, As indicated by Ms. Spinale’s doctor, less than two months before Ms. Spinale exercised the limited power of appointment, Ms. Spinale “is alert and oriented as to time, person, and place. She can make her own medical and financial decisions.” (Spinale Decl., Ex. A.) Second, the Special Needs Trust at issue in the trust was created to protect her disability benefits not because she had a mental health diagnosis. (Bennett Decl., Ex. A, Fifth Amendment, p._1_.) Ms. Spinale helped care for her parents and worked with them prior to the death of her mother Rina Spinale in April 2008. (Spinale Decl., { 3.) Third, nothing is stated in the trust that Ms. Spinale had a mental health diagnosis. Defendant offers no evidence that Defendant had a mental health diagnosis that may affect her right to exercise her limited power of appointment. For this reason, Defendant’s indications regarding any mental health diagnosis should not be considered with the Demurrer. -5- PLAINTIFF’S OPPOSITION TO DEMURRERCOU ewe ND YH BF BN BNP PY PN NRK HK | Bee Be ee ee ee ec AA PF YN SK Soe RUA ARES NH Fourth, and most importantly, there is “a rebuttable presumption ... that all persons have the capacity to make decisions and to be responsible for their actions or decisions.” (Cal. Probate Code § 810(a).) “[A] person who has a mental or physical disorder may still be capable of contracting, conveying, marrying, making medical decisions, executing wills or trusts, and performing other actions.” (Cal. Probate Code § 810(b) (emphasis added).) Only a judicial determination that Ms. Spinate lacked the legal capacity to exercise the limited power of appointment can overturn the appoiniment to Plaintiff. (See Cal. Probate Code § 810(c).) And, any deficit that supports the lack of capacity must be based on evidence and not conjecture. (See id.) Here, Defendant provides no evidence that Ms. Spinale was diagnosed with a mental health issue. Rather, Ms. Spinale’s very own doctor indicated that she “is alert and oriented as to time, person, and place” and “can make her own medical and financial decisions.” (Spinale Decl., Ex. A.) As such, Defendant’s references to such should be disregarded. 3. The Previous Court Order, The Attorney That Drafted The Seventh Amendment, and The Trust Itself Supports the Validity of Ms. Spinale’s Exercise of The Limited Power of Appointment. In his Demurrer, Defendant argues that the trust amendment that Plaintiff relies on (the Sixth Amendment, attached at Exhibit A to Bennett Declaration, was superseded by the probate court. This is not true and Defendant is making an incorrect assessment before this court. Defendant relies on the September 8, 2017 Order Granting Petition Pursuant to Probate Code § 850 when making this argument. (Request for Judicial Notice in Support of Demurrer, Ex. C.) Specifically, the central paragraph (4 13) to consider for this argument states: “The Amendment titled “Seventh Amendment to The Spinale Family Trust’ and dated October 2, 2007 controls the distribution of the Trust. Under that amendment a special needs trust is created for the benefit of Carol Ann Spinale, funded by the entire residue of the Trust. The Trust creates no ownership interest nor lender’s interest for Carol Ann Spinale in the real property located at 625 Avalon Street, San Francisco, California.” As is clear from paragraph 13, (1) there is no mention of Ms, Spinale’s exercise of the limited power of appointment, and (2) there is no mention that the Sixth Amendment to the trust has been superseded. Paragraph 13 merely states that the Seventh Amendment controls the -6- PLAINTIFF'S OPPOSITION TO DEMURRERoMU ON AH PB wD SMM MM NR ON NR mee ee eee anraInvnn se ON |= SO DNA ABW DH = distribution of the trust. As indicated below, the Seventh Amendment ratified the terms of the Sixth Amendment. On page 5 of the Seventh Amendment, it specifically states” “Ratification of Other Term: of Trust. In every other respect, the settlor confirms and ratifies the terms of the trust as stated in that certain declaration dated November 20, 1990, and all subsequent amendments.” (Bennett Decl., Ex. A; see also Attorney Lieberman Declaration filed on August 11, 2017 attached to Request for Judicial Notice in Support of Opposition to Demurrer (“RFIN for Opposition”).) This makes it clear that nothing changed in the Sixth Amendment when the Seventh Amendment was drafted and that the Sixth Amendment was not superseded. This interpretation falls in line with the court’s September 8, 2017 Order. The relevant terms of the Sixth Amendment stated that Carol Ann Spinale could exercise a limited power of appointment to “anyone other than herself, her estate, her creditors or creditors of her estate.” (Exhibit B to Compliant, Sixth Amendment, Art. IL], ]6.A.2.) The Sixth Amendment further states that “[t]his power of appointment can be exercised by Carol Ann Spinale during her life or upon her death.” (Exhibit B to Complaint, Sixth Amendment, Art. III, {] 6.A.2.) Pursuant to the very terms of the September 8, 2017 Order and the ratification of other terms pursuant to the Seventh Amendment, the limited power of appointment is effective and valid. The court’s September 8, 2017 Order did not supersede the Sixth Amendment as incorrectly asserted by Defendant. This interpretation is supported by the attorney who drafted the Seventh Amendment of the trust at issue. (See Attorney Lieberman Declaration, RFJN for Opposition, {[ 2-5.) Based on Attorney Lieberman's review of the case file and looking at the Seventh Amendment, there is nothing to indicate “any intent on the part of [the settlors] to change any terms of the Sixth Amendment [] .. except giving Joe Michael Spinale’s share to Carol Anne Spinale.” Ud., 94) B. There is No Collateral Estoppel or Claim Preclusion Effect and This Suit Is Not A “Rehash” of Previous Litigated Claims, Again, this is not true and Defendant is making an incorrect assessment before this court. There is-no collateral estoppel or claim preclusion effect on the claims in this pending lawsuit. -7- PLAINTIFF'S OPPOSITION TO DEMURRERCauses of action for breach of fiduciary duty, professional negligence, unfair competition, quiet title, and declaratory relief have not been actually litigated before the court.' A dismissal of Ms. Spinale’s civil case does not mean that claims were actually litigated before the court. There ‘were no witnesses and no trial of the very issues that are the bases of the present causes of action. Defendant’s argument in his Demurrer seems to stem from the ownership aspect of the real property at issue. The ownership of the real property has nothing to do with Defendant's breach of fiduciary duty, professional negligence, and unfair competition in his administration of his duties as a trustee. Indeed, Defendant is attempting to sell the real property at a price that will continue to squander the assets of the trust. More importantly, the cause of action for unlawful competition and the wrongful attempt to sell the real estate property for a price lower than what it is worth were not discussed or before’ the court in Ms. Spinale’s civil action. At the very least, these issues are not subject to collateral estoppel or claim preclusion — these issues were not actually litigated. Plaintiff's claims are separate, distinct, and her own and the claims presented before the court were never ruled on by the court. Again, as incorrectly stated by Defendant, there is no transfer of claims by Ms. Spinale. Rather, Plaintiff has her own independent standing as indicated by Section A above. For the sake of argument, even assuming that similar arguments were brought forward in Ms. Spinale’s civil suit, Plaintiff would be an indispensable party so that she would have had to be added to the civil suit. Indeed, California Code of Civil Procedure § 389(a) specifically states: A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring ' Plaintiff asserts that Carol Ann Spinale has a life estate in the real property at issue in this action| and this life estate was not at issue before the court on September 8, 2017. The September 8, 2017 Order does not mention any interest relative to a life estate. -8- PLAINTIFF'S OPPOSITION TO DEMURRERdouble, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. And, the September 8, 2017 Order says nothing about Plaintiff or a limited power of appointment from challenging Defendant’s actions. (Request for Judicial Notice in Support of Demurrer, Ex. C.) Indeed, the court specifically crossed out language on the [proposed] order that stated: “... any additional or subsequent recordations by Carol Ann Spinale which purport to affect 625 Avalon Avenue, San Francisco, California are ineffective and invalid from their recordation.” (Request for Judicial Notice in Support of Demurrer, Ex. C, p. 4, 47.) As such, this court should allow Plaintiff's claims to go forward and the Demurrer should be denied. & The Complaint Was Not Filed For the Sole Purpose of Delay and Plaintiff Has a Right to Preserve Her Rights. Contrary to Defendant's contentions, this complaint was not filed solely for the purpose of delay. Plaintiff, now having an interest in the trust, has a right to protect her rights and interests in the trust property. This case is not about the actions of Carol Ann Spinale but about Plaintiff's rights in the trust property. The filing of this lawsuit was not to frustrate the rights of the probate court. The courts are to do whatever is necessary and appropriate, even in the absence of controlling legislation, to ensure the prompt, fair, and orderly administration of justice. (Neary vs. Regents of University af California (1992) 3 Cal.4th 273, 276.) And here, Plaintiff is asking that this Court administer justice and allow her to pursue her claims. Defendant is presently attempting to sell the real property in the trust in violation of California Probate Code §§ 16002, 16004(a), 16006, and 16007. This is only one of the many breaches that Defendant has committed against the trust — he has and continues to squander assets of the trust. And, Plaintiff has a right to contest the actions of Defendant. (Cal. Code of Civ. Proc. § 389(a).) D. In The Alternative, Plaintiff Requests Leave to Amend the Complaint on An Evidentiary Hearing on the Issue of the Seventh Amendment. Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, “leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CED Construction, Inc,, supra, 120 Cal.App.4th at p. 1146 (citation omitted).) “[I]t is error for a ... court to sustain a demurrer when the plaintiff has stated a cause -9- PLAINTIFF'S OPPOSITION TO DEMURRERoD we NAH BW Ye of action under any possible legal theory.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 810 (citation omitted).) Here, Plaintiff has stated a cause of action for numerous causes of action, including unfair competition and the wrongful attempt to sell the real estate property for a price lower than what it is worth. In the alternative, Plaintiff requests leave to amend the complaint to cure any deficiencies. IV. CONCLUSION For the aforementioned reasons, Plaintiff requests that Defendant's Demurrer be denied in its entirety. In the alternative, Plaintiff requests leave to amend the Complaint to cure any deficiencies. DATED: April 20, 2018 CHRISTINE A. Bi In Pro Per -10- PLAINTIFF'S OPPOSITION TO DEMURRER