Demurrer in Nicole E Jordan vs Rogers Sheffield & Campbell LLP et al| Trellis.Law

On June 22, 2023 a Motion,Ex Parte was filed involving a dispute between Jordan, Nicole E, and Green, Jamie Cathleen, Jordan, Angela M, Jordan, Jennifer, Price, Sheila T, Rogers Sheffield & Campbell Llp, Sheffield, Amethyst Eve, for Unlimited Breach of Contract/Warranty (06) in the District Court of Santa Barbara County.

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1 Tamineh Roshanian, Esq. (SBN 139216)
Roshanian Payman, PC
2
30721 Russell Ranch Road, Suite 140
3 Westlake Village, CA 91362-7383
Tel: (818) 330-5162
4 Email: tami@roshanianpayman.com
5
Attorney for Plaintiff Nicole Jordan
6

7 SUPERIOR COURT OF THE STATE OF CALIFORNIA

8 COUNTY OF SANTA BARBARA

9 ANACAPA DIVISION
10
) Case No.: 23CV02702
11 NICOLE EMILY JORDAN, etc. et.al., )
) Judge: Hon. Colleen K. Sterne
12 PLAINTIFF, )
)
13 ) NICOLE JORDAN’S MEMORANDUM OF
-v- ) POINTS AND AUTHORITIES IN
14 ) OPPOSITION TO DEMURRER OF SHEILA
ROGERS, SHEFFIELD & CAMPBELL, ) PRICE (AS REPRESENTATIVE OF HOMER
15 LLP, et. al, ) SHEFFIELD)
16 )
DEFENDANTS. )
17 ) Complaint Filed: June 22, 2023
)
18 ) Department: SB5
) Date: 10/23,/2023
19 ) Time: 10:00 AM
20
______________________________________)

21 INTRODUCTION
22
PETITIONER , NICOLE JORDAN (“Nicole” aka “Nicole”), hereby opposes to Demurrer to
23
the Complaint of SHEILA PRICE (AS REPRESENTATIVE OF HOMER SHEFFIELD)
24
(“Defendant” or “Sheffield”).
25
Moving Defendant has demurred to the Complaint, without specifying whether is a
26
general or special demurrer. However, it appears that Sheffield has demurred to all causes of
27
actions pertaining to Sheffield, as to:
28
1. 1st Cause of Action for Breach of Fiduciary Duty;

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Nicole Jordan’s Opposition to Sheffield’s Demurrer
1 2. 2nd Cause of Action for Breach of Duty to Maintain Confidentiality;
2 3. 3rd Cause of Action for Legal Malpractice,
3 4. 4th Cause of Action for Breach of Contract,
4 5. 6th Cause of Action for Breach of Implied Covenant of Good Faith and Fair Dealing,
5 6. 7th Cause of Action for Constructive Fraud,
6 7. 8th Cause of Action for Fraud by Concealment,
7 8. 9th Cause of Action for Intentional Misrepresentation,
8 9. 11th Cause of Action for Negligent Misrepresentation, and
9 10. 12th Cause of Action for Negligence,
10 on the grounds that these causes of actions are: (a) time barred under CCP § 340.6, (b) Nicole
11 lacks standing to bring a claim in any representative capacity, (c) the complaint fails to establish
12 the elements of the claim (CCP § 430.10(e)), and (d) Nicole failed to mitigate her damages.
13 I. SUMMARY OF RSC’S ARGUMENT IN SUPPROT OF DEMURRER
14 Sheffield’s opening argument is trying to portray Nicole and her counsel as some types
15 of serial litigators who are suing everyone. Rogers Sheffield and Campbell (“RSC”) as a law
16 firm, and it’s now deceased partner Homer Sheffield, betrayed the trust of their decades old
17 clients, Borimir and Virginia Jordan (“Jordans”). Sheffield was the attorney in charge of the
18 Jordan’s matters who failed them on biblical proportions.
19 Sheffield’s personal representative is now trying to protect Sheffield’s Estate from liability
20 arising from his violation of the Rules of Professional Conduct, fiduciary duties and fraudulent
21 conduct which harmed Nicole as the intended sole beneficiary and trustee of the BORIMIR
22 AND VIRIGINA JORDAN FAMILY TRUST, dated September 17, 1998, Restated as Third
23 Amendment on April 6, 2007 (the “Trust”) who stands to lose all her inheritance due to the
24 alleged misconduct of RSC and Sheffield as stated in the Complaint. RSC tactic is the old
25 classic playbook, in order to cover up for your failings, accuse your accuser of the very thing
26 you are guilty of. The fact is that Nicole has not sued Quinn Fiduciary, Mark Weinstock,
27 Morgan Stanley, and others who conspired with RSC and Sheffield to frustrate Virginia and
28 Borimir’s efforts to amend their trust, because Nicole determined that these other people were

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Nicole Jordan’s Opposition to Sheffield’s Demurrer
1 played by the main culprits in this case, Angela Hart Jordan, Jamie Green, RSC and Sheffield.
2 Discovery is required to determine (1) the extent Sheffield committed a conspiracy to
3 defraud, or at all, (1) dud he blatantly disregard the instructions of the Jordans to amend the
4 Trust documents in accordance with their wishes while Sheffield was still acting as their Trust
5 attorney, or (3) the extent of Sheffield’s awareness that his actions were harming Nicole and her
6 beneficiary interest in the Trust assets, or (4) did Sheffield have diminished mental capacity
7 such as early signs of dementia when he represented the Jordans in 2018, or when he act as their
8 co-trustee 2020 when he appointed Mark Watson as his successor trustee. The Complaint is
9 comprehensive and contains detailed allegations of facts which are incorporated by reference in
10 all of causes of actions that have been demurred. Defendant’s arguments are more appropriate
11 for the trial on issue of facts and law and her demurrer should be denied.
12 1. The one-year statute of limitation for lawsuits against attorneys (CCP § 340.6)
13 As alleged in Paragraph 191 of the Complaint, the statutes of limitations for breach of
14 contract and breach of fiduciary claims are four years under Code of Civil Procedure (“CCP”)
15 §§ 337 and 343, respectively. Both statutes are subject to the “delayed-discovery rule,” i.e., the
16 limitations period does not commence until the aggrieved party discovers acts giving rise to the
17 breach. See, e.g., Wind Dancer Production Group v. Walt Disney Pictures, 10 Cal. App. 5th 56,
18 73 (2017) (breach of contract); Stalberg v. Western Title Ins. Co., 230 Cal.App.3d 1223, 1230
19 (1991) (breach of fiduciary duty). See Sections II.B and II.C. below. The statute of limitations
20 has yet to commence to run because the degree of harm and damage to Nicole has not been fully
21 determined due to the pending probate action.
22 2. Nicole’s standing to bring representative claims and damages on behalf of her parents
23 Paragraph 2 of the Complaint alleges that “Upon information and belief, no probate
24 petition was filed in connection with VIRGINIA’s estate and no personal representative
25 appointed. Thus, NICOLE, as a beneficiary and successor-in-interest, has standing to bring this
26 action on behalf of the ESTATE.”. Paragraph 20 alleges that “Beginning in 2008 and at all
27 relevant times, BORIMIR and VIRGINIA relied on NICOLE as their in-home companion and
28 caregiver, representative and agent, with full authority to assist the parents with managing their

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Nicole Jordan’s Opposition to Sheffield’s Demurrer
1 affairs in their old ages, as alleged below.” Paragraph 230E (1st Cause of Action (alleging
2 standing based on fiduciary duties of RSC and Sheffield to Trust Beneficiaries. In addition,
3 Paragraph 331 alleges that: ““An intended trust beneficiary ha[s] standing to seek reformation
4 of a trust agreement under Civil Code section 3399. … Civil Code section 3399 is a codification
5 of the equitable action for reformation of a written instrument, and the sole purpose of the
6 reformation doctrine is to correct a written instrument in order to effectuate a common intention
7 RIWKHSDUWLHVZKLFKZDVLQFRUUHFWO\UHGXFHGWRZULWLQJါ´*LDPPDUUXVFRY6LPRQ&DO
8 App. 4th 1586, 1606 (2009).”
9 These allegations are sufficient to give Nicole standing. Under the terms of Virginia’s
10 Will, all personal property of Virginia Jordan is bequeathed to her three daughters. If necessary,
11 Nicole will amend the Complaint to cure any deficiency in the allegations of the Complaint.
12 RSC/Sheffield’s counsel did not meet and confer on the issue of whether Nicole lacks standing
13 to sue on behalf of her mother’s estate. Sheffield’s RSC’s Demurrer in this regards should fail to
14 state that it met and conferred in good faith regarding Nicole’s standing, and in fact refused to
15 provide any legal arguments to support his argument that Nicole lacked standing. Nicole, as the
16 sole beneficiary and trustee of the Sixth Trust Amendment, if upheld by the Probate Court, will
17 be entitled to apply to court to be appointed as the personal representative of Virginia Jordan to
18 gain standing, if the Court holds that Nicole lacks standing as of current date.
19 3. Sheffield’s Duty to Nicole.
20 Sheffield’s argument that a law firm estate attorney’s duty to trust beneficiaries is very
21 narrow and its claims that Nicole failed to allege that she was owed a duty as a beneficiary, is
22 asserted is untrue. The below allegation of the Trust makes sufficient allegations as to the
23 duties owed by RSC and Sheffield to Nicole as the beneficiary of the Trust. Paragraph 230 A-E
24 (a.-i), 231, 239, and 331 enumerates all the duties owed to Nicole by RSC and Sheffield,
25 including Paragraph 331 quoted above. These paragraphs allege that Nicole was owed an
26 independent fiduciary duty by RSC and Sheffield as the intended trust beneficiary.
27 4. Sufficiency of Allegations regarding fraud claims.
28 Seventh to Tenth Causes of Action contain all the necessary allegations as provided by

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Nicole Jordan’s Opposition to Sheffield’s Demurrer
1 CACI 4111 for Constructive Fraud (CCP § 1573), CACI 1901 for Fraud by Concealment, CACI
2 1900 for Intentional Misrepresentation and CACI 3600 for Conspiracy to Defraud. The Fraud
3 related causes of actions of the Complaint incorporate by reference all the factual allegations in
4 the preceding paragraphs and allege all the CACI recommended legal elements of a factually
5 and legally sufficient cause of action.
6 5. Defendant’s argument that Nicole failed to mitigate her damages by failing to file her
7 probate challenge on a timely basis is not true.
8 Complaint Sub section C on pages 10 mis-numbered as Paragraph 4, alleges sufficient
9 facts why Nicole could not file her Complaint earlier (mainly due to her limited disability
10 misplacing the Sixth Trust Amendment, lack of funds to hire an attorney, and her depression
11 and
12 “4. NICOLE could not find an attorney willing to represent her without a
large retainer fee. She did not have the funds to hire an attorney, was
13
sick, with chronic migraine headache, dental decay, and was grief-
14 stricken and shell-shocked from all that had happened leading up to her
mother’s death and the aftermath. She feared her sisters were pulling the
15 strings and controlling Watson and Soderborg. NICOLE did not know
16
she had to file a formal court petition to validate the Sixth Amendment.
NICOLE was also suffering with mild depression with impaired ability to
17 focus and remember things. In October 2022, when a substantial amount
of mold was discovered through the house, she realized her foggy brain
18 had been caused by the mold sickness. From her perspective, Watson was
19
an imposter with no authority to act. She also believed she had written to
Soderborg, objecting to Watson’s authority.”
20
II. LEGAL ARUGMENTS
21

22 A. Legal Standards Applying to Demurrer

23 When evaluating a demurrer, legal and factual conclusions that are not ultimate facts are
24 to be disregarded. A Complaint must allege ultimate facts, not legal conclusions, i.e.,
25 “...plaintiff must “set forth the essential facts of his [or her] case with reasonable precision and
26 with particularity sufficient to acquaint [the] Defendant with the nature, source, and extent” of

27
the plaintiff's claim. Legal conclusions are insufficient. (Doe v. City of Los Angeles (2007) 42
Cal.4th 531, 550 & 551, fn. 5, “” (Thrifty Payless, Inc. v. Americana at Brand, LLC (2013) 218
28
Cal.App.4th 1230, 1238)

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Nicole Jordan’s Opposition to Sheffield’s Demurrer
1 When ruling on a demurrer the court accepts the ultimate facts which are pleaded, but
2 not legal or factual conclusions, i.e., “The court does not, however, assume the truth of
3 contentions, deductions or conclusions of law. (Moore v. Regents of University of California

4 (1990) 51 Cal.3d 120, 125, 271 Cal.Rptr. 146, 793 P.2d 479.)” (Aubry v. Tri-City Hospital Dist.

5
(1992) 2 Cal.4th 962, 967 [9 Cal.Rptr.2d 92, 95].)

6 “...unsupported factual conclusions are disregarded when ruling on a demurrer. (Moore
7 v. Regents of University of California, supra, 51 Cal.3d at p. 125, 271 Cal.Rptr. 146, 793 P.2d
8 479.)” (Mead v. Sanwa Bank California (1998) 61 Cal.App.4th 561, 567 [71 Cal.Rptr.2d 625,

9 628].)

10 A general demurrer challenges whether the allegations of a complaint are sufficient to
11 state a cause of action. (Code Civ. Proc., § 430.10, subd. (e). A demurrer raises issues of law, not
12 facts, regarding the form or content of the opposing party’s pleading. It is not the function of the
13 demurrer to challenge the truthfulness of the complaint. (Unruh-Haxton v. Regents of Univ. of
14 California (2008) 162 Cal.App.4th 343, 365, as modified (May 15, 2008).) For the purpose of the
15
ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however
16
improbable they may be. (Code Civ. Proc §§ 422.10, 589.)
17
In evaluating the sufficiency of the allegations, the trial court must accept the truth of all
18
material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law,
19
and may also consider matters that may be judicially noticed. SLPR, L.L.C. v. San Diego
20
Unified Port Dist. (2020) 49 Cal.App.5th 284, 316, 262 Cal. Rptr. 3d 782 (SLPR).)
21
California Supreme Court has “contentions, deductions or conclusions of fact or law”
22
are not considered but matters which may be judicially noticed may be considered (Serrano v.
23
Priest (1971) 5 Cal.3d 584, 591, 96 Cal. Rptr. 601, 487 P.2d 1241.) The Court will give “a
24
reasonable interpretation” of the Complaint, “reading it as a whole and its parts in their context”
25

26
(Speegle v. Board of Fire Underwriters (1946) 29 Cal.2d 34, 42, 172 P.2d 867.) When a

27 demurrer is sustained, the court will consider whether there is a reasonable possibility that the

28 defect can be cured by amendment (Kilgore v. Younger (1982) 30 Cal.3d 770, 781, 180 Cal.

Rptr. 657, 640 P.2d 793; and Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636, 75 Cal. Rptr.

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Nicole Jordan’s Opposition to Sheffield’s Demurrer
1 766, 451 P.2d 406.)
2 In ruling on a demurrer, the Court must construe the allegations "liberally...with a view
3 to substantial justice between the parties" (CCP § 452), and must draw all reasonable inferences
4 in the Complaint's favor (Kruss v. Booth (2010) 185 Cal.App.4th 699, 713; Perez 209
5 Cal.App.4th at 1238).)
6
A general demurrer does not lie to only part of a cause of action. If there are sufficient
7
allegations to entitle plaintiff to relief, other allegations cannot be challenged by general
8
demurrer. (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1 1 50, 1 167;
9
Rutter § 7:42.2.)
10
B. The Complaint Is Not Time Barred Against RSC and Sheffield
11
RSC argues the entire action against is time barred by a one year statute of limitations
12
applicable to lawsuits against an attorney arising out of their performance of professional
13
services. First, the tort related causes of actions against RSC are not subject to one years statute
14
of limitations. Second, as stated above and as alleged in Paragraph 191 of the Complaint, the
15
statute of limitations for breach of contract and breach of fiduciary claims is four years under
16
Code of Civil Procedure §§ 337 and 343, respectively. Both statutes are subject to the “delayed-
17
discovery rule,” i.e., the limitations period does not commence until the aggrieved party
18
discovers acts giving rise to the breach. See, e.g., Wind Dancer Production Group v. Walt
19
Disney Pictures, 10 Cal. App. 5th 56, 73 (2017) (breach of contract); Stalberg v. Western Title
20
Ins. Co., 230 Cal.App.3d 1223, 1230 (1991) (breach of fiduciary duty).
21
Although the Probate Petition was filed in March 2022, Nicole did not receive RSC’s
22
discovery until June 2022 and APS’s records until December 15, 2022. December 15, 2022,
23
was the date commenced the running of all applicable statute of limitations.
24
In addition, the quantum of Nicole’s damages will not be known until the Probate matter
25
is concluded and the Court ultimately determines whether Nicole will take her beneficiary
26
shares under the Fifth or Sixth Trust Amendment or whether she will lose her inheritance due to
27
the “No Contest” Clause of the Third Trust Amendment. Since the
28

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Nicole Jordan’s Opposition to Sheffield’s Demurrer
1 "In tort actions, the statute of limitations commences when the last element
essential to a cause of action occurs. [Citations.] The statute of limitations does
2
not begin to run and no cause of action accrues in a tort action until damage has
3 occurred. [Citation.] If the last element of the cause of action to occur is damage,
the statute of limitations begins to run on the occurrence of `appreciable and
4 actual harm, however uncertain in amount,' that consists of more than nominal
5
damages. [Citations.] . . . The mere breach of duty — causing only nominal
damages, speculative harm or the threat of future harm not yet realized —
6 normally does not suffice to create a cause of action. [Citations.]
7
Siegel v. Anderson Homes, Inc. (2004) 118 Cal.App.4th 994, 1011
The case at hand is similar to discovery of a latent construction defect (as was the case
8
in Siegel, supra). The rational is the cause of actions start to accrue when both elements are
9
present (1) Plaintiffs suffers a loss and incurs injury, and (2) Plaintiffs becomes aware that the
10
defendant acted negligently in causing the injury. The Siegle Court summarized the position as
11
follows:
12
“The inequitable consequences of the trial court's ruling in this case are manifest.
13
If the discovery of latent defects were relevant only to the commencement of the
14 statute of limitations, and not to accrual of the cause of action, Siegal's discovery
of the water damage in his roof and walls would have started the limitations
15 period to run on a cause of action he did not own, but which belonged instead to
the original owner of his house. But the original owner, assuming he or she
16
learned of this theoretical windfall within the next three years, would have no
17 cause of action against Anderson as a practical matter and so nothing of value to
assign to Siegel, because that owner would have suffered no compensable injury.
18 There would, in effect, be no remedy for the defects in Siegel's and Sanchez's
homes. This cannot be the law. A cause of action cannot have accrued before there
19
was someone in a position to actually assert it.” Siegel, Id. at 1014
20 Here the real cause of action belongs to Nicole who was the intended beneficiary of the
21 Trust and not Virginia Jordan who has passed away and cannot benefit from damages to be paid
22 by the Defendants. Although Nicole had some knowledge of Sheffield’s unlawful activities
23 against Virginia and herself, she did not become fully aware of these until she reviewed RSC’s
24 full discovery documents in June 2022 and Sheffield’s conspiracy with Green when APS’s
25 records were produced to her counsel on December 15, 2022. Even being aware of the wrong
26 done was not sufficient to accrue a cause of action until she suffered an actual economic loss
27 when the trail court in the Probate matter sustained Angela’s demurrer without leave to amend
28 in February 2023 leading to her eviction in August 2023. Until such time the full amount of

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Nicole Jordan’s Opposition to Sheffield’s Demurrer
1 Nicole’s quantum of damages is known, the statute of limitations will not commence to run.
2 C. Tolling of Statute of Limitation by Late Discovery When Applicable
3
A defendant's fraudulent concealment of a claim against it may toll the applicable statute
4
of limitations. (Regents of University of California v. Superior Court (1999) 20 Cal.4th 509,
5
533, 85 Cal. Rptr. 2d 257, 976 P.2d 808.) The plaintiff must establish the defendant's fraudulent
6
conduct resulted in concealment of the operative facts, plaintiff failed to discover such facts,
7
and the plaintiff's due diligence. (Sagehorn v. Engle (2006) 141 Cal.App.4th 452, 460-461, 46
8
Cal. Rptr. 3d 131.) The statute is tolled only for so long as the claim is undiscovered by the
9
plaintiff through the exercise of reasonable diligence. (Bernson v. Browning-Ferris
10
Industries (1994) 7 Cal.4th 926, 935, 30 Cal. Rptr. 2d 440, 873 P.2d 613.) The defendant's
11
misrepresentation tolls the statute as long as the plaintiff's reliance thereon is reasonable.
12
(Grisham v. Philip Morris U.S.A., Inc. (2007) 40 Cal.4th 623, 637-638, 54 Cal. Rptr. 3d 735,
13
151 P.3d 1151.)
14
'"Tolling, strictly speaking, is concerned with the point at which the
15 limitations period begins to run and with the circumstances in which the
running of the limitations period may be suspended. . . . Equitable estoppel,
16
however, . . . comes into play only after the limitations period has run and
17 addresses . . . the circumstances in which a party will be estopped from
asserting the statute of limitations as a defense to an admittedly untimely
18 action because his conduct has induced another into forbearing suit within
the applicable limitations period."'" (Lantzy v. Centex Homes, supra, 31
19
Cal.4th at p. 383.) For a defendant to be equitably estopped from asserting a
20 statute of limitations, the plaintiff must be "directly prevented . . . from
filing [a] suit on time." (Id. at p. 385.)
21

22 In Daley v. Regents of Univ. of Cal. (2019) 39 Cal.App.5th 595, 603, the Court stated

23 that: “As an exception to the general rule of accrual, however, the discovery rule "postpones
24 accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of
25 action."

26 D. Nicole Has Standing To Assert A Claim Against Sheffield
27
As for the Fifth Cause of Action for Intentional Interference with Contractual
28
Relations, is akin to the tort of Intentional Interference With Expected Inheritance

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Nicole Jordan’s Opposition to Sheffield’s Demurrer
1 (“ILEL”). In Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1048, the Plaintiff in that case,
2 like this case, filed a civil complaint while a probate matter was still pending alleging IIEI,
3 deceit by false promise, and negligence. Plaintiff alleged that Defendant “ interfered with his
4 expected inheritance of one half of MacGinnis's estate by lying to him about her intention to
5 prepare a living trust for MacGinnis to sign.” and that “Beckwith further alleged Dahl made
6 these false promises in order to “caus[e] a sufficient delay to prevent [MacGinnis] from signing
7 his will before his surgery” because she knew that if MacGinnis died without a will, she would
8 inherit the entire estate. Finally, Beckwith claimed that as a result of his reliance on Dahl's
9 promises, “he was deprived of his ... share of [MacGinnis's] estate,” and because he had no
10 standing in probate court, a civil action against Dahl was his only remedy.” Defendant demurred
11 to all three causes of action. … “Ultimately, however, the court “decline[d] under the present
12 circumstances to adopt the tort of interference with an expected inheritance” because plaintiff
13 “had an adequate remedy in probate....” ( Id. at p. 593, 110 Cal.Rptr.3d 783.) Our Supreme
14 Court has not ruled on the issue of whether California recognizes tort. Beckwith. Id. at 1039.
15 In Gomez v. Smith (2020) 54 Cal.App.5th 1016, 1034, the Court recognized a
16 beneficiary’s right to sue the defendant for preventing the execution of the final trust documents
17 which prevented the intended primary beneficiary to receive her inheritance under the trust the
18 decedent wished to extinguish by creating the new trust.
19 Nicole’s standing to sue is too fold, one in her own capacity as someone who has
20 suffered economic loss (her inheritance) and emotional distress due to tortious conduct of RSC,
21 as a representative of Virginia’s Jordan’s estate. If Nicole prevails on appeal and the Probate
22 Court ultimately validates the Sixth Amendment, Nicole will be the sole beneficiary and trustee
23 of the Trust and the heir of Virginia Jordan.
24 1. Virginia’s Emotional Distress and Suffering
25
Exhibit D to Plaintiff’s Request for Judicial Notice, is a letter dated November 11,
26
2020 from Rogers, Sheffield Campbell, LLP to Mark Watson attaching the Third, Fourth, and
27
Fifth Amendments to the Living Trust, Virginia’s Will dated September 19, 1998; Virginia’s
28
First Codicil to her Will dated September 13, 2000, and Borimir’s Will and two Codicils of the

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Nicole Jordan’s Opposition to Sheffield’s Demurrer
1 same dates; and stating “Under the Fourth Trust Amendment and Second Codicils, their
2 financial advisor at the time, Mr. Justin Pearlman, and I were named as Successor Co-Trustee
3 and Co-Executors, but under the current circumstances, I would have to decline to act in these
4 capacities.” Sheffield is dead and Pearlman resigned. Nicole will apply to Court to be appointed
5 as Representative once the status of the Sixth Trust Amendment is resolved, and will seek the
6 court’s permission to amend the Complaint accordingly. In the meantime, as the intended
7 beneficiary of the Trust, Nicole has sufficient standing to bring this action. RSC has not cited
8 any applicable cases that challenge Nicole’s standing. Just saying so, does not make it so.
9 2. Nicole’s Emotional Distress and Suffering
10
"[W]here a plaintiff sufficiently alleges intentional or affirmative misconduct by an
11
attorney or noneconomic injury resulting from an attorney's professional negligence, recovery
12
of emotional distress damages is permitted." Smith v. Super. Court, 10 Cal. App. 4th 1033,
13
1040 (1992). A legal malpractice plaintiff need not establish "physical impact or injury" or
14
"intentional wrongdoing or bad faith" in order to recover emotional distress damages. Pleasant
15
v. Celli, 18 Cal. App. 4th 841, 51 (1993), disapproved of on other grounds by Adams v. Paul, 11
16
Cal. 4th 583 (1995).
17
The Court in Kiseskey v. Carpenters' Trust for So. California (1983) 144 Cal.App.3d
18
222, 232 held that:
19
“The rule is otherwise with the tort of intentional infliction of emotional
20 distress. It is not complete until the effect of a defendant's conduct results
in plaintiff's severe emotional distress. That is the time the cause of action
21
accrues and starts the statute of limitations running. This requisite severity
22 of emotional distress, in turn, must be determined by being "of such
substantial quantity or enduring quality that no reasonable man in a
23 civilized society should be expected to endure it."
24 Paragraph 319 of the Complaint alleges that Nicole “experienced and continues to
25 experience grievous mental suffering, including fear, agitation, confusion, severe depression and
26 other forms of emotional distress, and has suffered damages in an amount to be proven at trial.”
27 These allegations which must be taken as are sufficient to support the allegations in said causes
28 of actions so far as the statute of limitations, under any theory of recovery is concerned.

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Nicole Jordan’s Opposition to Sheffield’s Demurrer
1 E. Sheffield Owed a Duty to Nicole as the Intended Beneficiary
2
Defendant cites no cases to support its argument that an attorney does not owe any duty
3
to non-clients. It Furia v. Helm (2003) 111 Cal.App.4th 945, 954 which held that an attorney
4
acting as a mediator who did not provide legal advice to the conflicting parties, does not owe a
5
duty to either. Indeed as stated above, RSC owed Nicole a duty as an intended beneficiary. He
6
also owed a duty of disclosure in respect of his communications with the Sisters, Green and
7
others so far as they were conspiring behind her back to prevent Virginia and Borimir from
8
signing the final trust amendment.
9
The cases cited in page 18 of RSC’s brief are not applicable to this case as RSC has not
10
been sued as the drafting attorney, but as an attorney who breached his fiduciary duty to
11
Virginia and Borimir and the intended beneficiary of the Trust. He has also been sued for
12
appointing Mark Watson as the successor trustee after he resigned as the trustee before Justin
13
Pearlman’s resignation, and in conspiring with the other defendants to harm Nicole. RSC
14
further argues that it had no duty of disclosure to Nicole without citing any legal authority to
15
support its claims.
16
“In limited cases, however, a moving party who was not a client may have standing
17
based on a "legally recognizable expectation of confidentiality." (DCH Health Services
18
Corp. v. Waite (2002) 95 Cal.App.4th 829, 832 ; see also Lynn v. George (2017) 15 Cal.App.5th
19
630, 636-637 ["'Standing may arise from an attorney-client relationship between the moving
20
party and targeted counsel or from a duty of confidentiality owed by the attorney to the moving
21
party despite the absence of an attorney-client relationship' [citations omitted]"; Great Lakes
22
Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347 (standing may "arise from a breach
23
of the duty of confidentiality owed to the complaining party, regardless of whether a lawyer-
24
client relationship existed").
25
F. All Fraud Related Causes of Actions, including the Fifth Cause of Action for
26 Conspiracy to Defraud Are Sufficiently Alleged.
27
All causes of actions including the fraud related causes of action incorporate by
28
reference the facts alleged in preceding paragraphs and very detailed statement of facts, with

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Nicole Jordan’s Opposition to Sheffield’s Demurrer
1 reference to specific documents where it is shown that RSC fraudulently conspired with
2 Nicole’s Sisters, and Jamie Green to deprive Nicole of her inheritance.
3 The Tenth Cause of Action against the Sisters and Green for Conspiracy to Defraud is
4 not governed by the Governed by the Government Code Section 11.2 but by CCP section
5 338(d)’s three year Statute of Limitations. In Aaroe v. First American Title Ins. Co. (1990) 222
6 Cal.App.3d 124, 12, the Court held that
7 “The last overt act doctrine prevents the statute of limitations from
8
beginning to run in certain cases, " even after the fraud is discovered . . .,"
until the commission of the last overt act pursuant to the conspiracy. ( Id., at
9 p. 788, italics in original; accord, Agnew v. Parks (1959) 172 Cal.App.2d
756, 766 [ 343 P.2d 118].) However, the Wyatt court also recognized that
10 the statute of limitations for a conspiracy to defraud is otherwise governed
11
by section 338(d). (24 Cal.3d at p. 786 and fn. 2.) In cases in which it is
alleged the fraud was not discovered until less than three years prior to the
12 filing of suit, section 338(d) directs the action may be timely despite the fact
that the last overt act is more than three years old. Any other rule would
13
simply repeal the three-year discovery rule of section 338(d), which is
14 applicable in fraud and conspiracy to defraud cases, and replace it with a
straight three-year statute measured from the last fraudulent act.”
15 See also State ex rel. Metz v. CCC Information Services, Inc. (2007) 149
16 Cal.App.4th 402, 418. People v. Martinez (2017) 10 Cal.App.5th 686, 713-14 stated that:
17 "[C]onspiracy is a separate and distinct crime from the offense that is the object of the
18 conspiracy and is governed by a separate and distinct statute of limitations." (People v.
19 Milstein (2012) 211 Cal.App.4th 1158, 1168, 150 Cal.Rptr.3d 290.) ”
20 G. The Grounds of Sheffield’s Demurrer Does Not Appear on the Face of Complaint
21
In appropriate cases the trial court may decide on the pleadings that claim or issue
22
preclusion bars a complaint. "[I]f all of the facts necessary to establish that an action is barred
23
on [preclusion] grounds appear on the face of the complaint," or are subject to judicial notice,
24
"the complaint is subject to demurrer." (Brosterhous v. State Bar (1995) 12 Cal.4th 315, 324, 48
25
Cal. Rptr. 2d 87, 906 P.2d 1242; Key v. Tyler (2019) 34 Cal.App.5th 505, 532, 246 Cal. Rptr. 3d
26
224 ["court may take judicial notice of court records in ruling on an issue of res judicata"]; Boyd
27
v. Freeman (2017) 18 Cal.App.5th 847, 855, 227 Cal. Rptr. 3d 164 [claim preclusion "properly
28
raised as a defense on demurrer when all relevant facts 'are within the complaint or subject to

-13-
Nicole Jordan’s Opposition to Sheffield’s Demurrer
1 judicial notice'"].) "'A demurrer based on a statute of limitations will not lie where the action
2 may be, but is not necessarily, barred. [Citation.] In order for the bar of
3
the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively
4
appear on the face of the complaint; it is not enough that the complaint shows that the action
5
may be barred. [Citation.]' (Citation)" (Geneva Towers Ltd. Partnership v. City and County of
6
San Francisco (2003) 29 Cal.4th 769, 781. Defendant has failed to show the alleged
7
deficiencies in the Complaint clearly and affirmatively by failing to refer to specific paragraphs
8
and language objected to. Instead, it makes sweeping conclusory factual and legal arguments
9
which are not based on actual facts alleged in the Complaint.
10
H. Any Defect in the Pleadings or the Request for Judicial Notice Can be Remedied by
11
Amendment
12
A trial court abuses its discretion by sustaining a demurrer without leave to amend
13
where "'there is a reasonable possibility that the defect can be cured by amendment.'" (Loeffler,
14
supra, 58 Cal.4th at p. 1100; accord, City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859,
15
65, 62 Cal. Rptr. 3d 614, 161 P.3d 1168. When a defect can be cured by amendment, a court
16
abuses its discretion by sustaining a demurrer without leave to amend. Harman v. San
17
Francisco (1972) 7 Cal.3d 1 50, 1 57. The Court is requested to give leave to amend if it
18
sustains any of part of the demurrer.
19
III. CONCLUSION
20
As stated above, California courts disfavor the Court granting demurrer without leave to
21
amend. If the Court finds that the allegations of the Complaint are insufficient to constitute a
22
cause of action or actions as alleged, the Court is requested to allow Plaintiffs to amend the
23
complaint after discovery is made.
24
Dated: 10/10/2023 Roshanian Payman, PC
25

26
__________________
___________________________
27 By: Tamineh Roshanian
Roshani
Attorney for Plaintiffs
Plaintiffs/Nicole Jordan
28

-14-
Nicole Jordan’s Opposition to Sheffield’s Demurrer
1 DECLARATION OF TAMINEH ROSHANIAN
2
I, Tamineh Roshanian, declare:
3
1. I am an attorney at law licensed to practice in the State of California, and am the
4

5
attorney of record for Plaintiff in the above-entitled action.

6 2. On August 31, 2023, the attorney for Roger Sheffield and Campbell (“RSC”),
7 Kenny Brooks, called me on the phone to meet and confer on the telephone. I requested him to
8 send me a written letter with the legal authority that supported his proposed demurrer and a
9 motion to strike. He mainly discussed Nicole’s lack of standing to sue RSC and the expiry of
10 the statute of limitation. However, he refused to send me any written meet and confer
11
correspondence. He was condescending and angry and discontinued the conversation when I
12
offered to amend the Complaint if he provided me with legal authority showing the
13
insufficiency of any of the allegations in the Complaint.
14
3. Mr. Brooks did not properly meet and confer on the issue of whether Nicole lacks
15
standing to sue on behalf of her mother’s estate or on her own behalf. Sheffield’s Demurrer in
16
this regards should fail due to failure to meet and confer in good faith.
17

18 I declare under penalty of perjury that the foregoing is true and correct and that this

19 declaration was executed on October 10, 2023, Ventura County, California.
20

21 ______________________________
_________________
TAMINEH
MINEH ROSHANIAN
22

-15-
Nicole Jordan’s Opposition to Sheffield’s Demurrer
PROOF OF SERVICE
1

2
Nicole Jordan v. Rogers Sheffield & Campbell, et al.
Case No.: 23CV02702
3 I, Tamineh Roshanian, am a citizen of the United States and employed in the county aforesaid; I am
over the age of 18 years and not a party to the within action; my business address is 30721 Russell Ranch
4
Rd, Suite 140, Westlake Village, CA 91362.
5
I served the foregoing documents described as followed:
6
NICOLE JORDAN’S MEMORANDUM OF POINTS AND AUTHORITIES IN
7 OPPOSITION TO DEMURRER OF SHEILA PRICE (AS REPRESENTATIVE
OF THE ESTATE OF HOMER SHEFFIELD)
8

9
Upon the interested parties in the action as follows:
10
KENNY C. BROOKS (SBN 254842)
11 MICHAEL MCCARTHY (SBN 89588)
NEMECEK & COLE
12 16255 Ventura Boulevard, Suite 300
Encino, California 91436-2300
13 Email: KBrooks@nemecek-cole.com
14
Rachel Van Mullem, County Counsel
15 Jennifer J. Lee, Deputy
COUNTY OF SANTA BARBARA
16 105 E. Anapamu Street, Suite 201
Santa Barbara, CA 93101
17 Email: jlee@countyofsb.org
18 _X__ BY ELECTRONIC MAIL [to individual person(s)]: By electronically transmitting the
document(s) listed above to the e-mail address(es) of the person(s) set forth on the attached
19
service list from the e-mail address mstoecker@nemecek-cole.com To my knowledge, the
20
transmission was reported as completed and without error. See, California Rules of Court,
Rule 2.25 l.
21
__X_ BY ELECTRONIC FILING AND SERVICE: I caused the document(s) listed above to
22 be filed and served via the Court's Electronic Filing System through an approved third party
vendor, and such document(s) were electronically served on the addressee(s) at the
23 email addresses noted above.
24

25
I declare under penalty of perjury that the forgoing is true and correct, and that this declaration

26
was executed 10/10/2023, at Westlake Village, California.

27 Tamineh Roshanian
28

-16-
Nicole Jordan’s Opposition to Sheffield’s Demurrer

Case Info

Judge

Rigali, James F Track Judge’s New Case

Case No.

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Document Filed Date

October 11, 2023

Case Filing Date

June 22, 2023

County

Parties

Green, Jamie Cathleen Defendant
Jordan, Angela M Defendant
Jordan, Jennifer Defendant
Jordan, Nicole E Plaintiff
Price, Sheila T Defendant
Rogers Sheffield & Campbell LLP Defendant
Roshanian, Tamineh Attorney for the Plaintiff
Sheffield, Amethyst Eve Defendant
Kenny Brooks Attorney
Michael McCarthy Attorney
Mark Watson Attorneys for Defendants
Jeffrey Soderborg Attorneys for Defendants
Vanita Tyler Attorney

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Motion,Ex Parte: Nicole E Jordan vs Rogers Sheffield & Campbell LLP et al

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