Nicole Emily Jordan vs Rogers Sheffield & Campbell LLP et al
Nicole Emily Jordan vs Rogers Sheffield & Campbell LLP et al
Case Number
23CV02702
Case Type
Hearing Date / Time
Mon, 08/18/2025 - 10:00
Nature of Proceedings
CMC; Demurrer on Second Amended Complaint; Demurrer to SAC; Motion: Strike Portions of Pltiff's Second Amended; Motion: Strike SAC
Tentative Ruling
Nicole Emily Jordan, etc., v. Rogers, Sheffield & Campbell, LLP, et al.
Case No. 23CV02702
Hearing Date: August 18, 2025
HEARING: (1) Demurrer of Jamie Cathleen Green to Second Amended Complaint
(2) Demurrer of Attorney Defendants to Second Amended Complaint
ATTORNEYS: For Plaintiff Nicole Emily Jordan: Tamineh Roshanian, Roshanian Payman, PC
For Defendants Rogers Sheffield & Campbell, LLP, and Sheila Price: Kenny C. Brooks, Michael McCarthy, Nemecek & Cole
For Defendant Jamie Cathleen Green: Rachel Van Mullem, Barbara A. Carroll, Office of the Santa Barbara County Counsel
TENTATIVE RULING:
(1) The demurrer of defendant Jamie Cathleen Green to plaintiff Nicole Emily Jordan’s second amended complaint is sustained, without leave to amend, as to all causes of action directed against Green.
(2) The hearing on the demurrer and motion to strike of defendants Rogers Sheffield & Campbell, LLP, and Sheila Price is continued to November 3, 2025. Defendants shall file and serve their reply to the opposition on or before September 29, 2025.
Background:
As alleged in plaintiff’s second amended complaint (SAC):
Borimir Jordan (Borimir) and Virginia Jordan (Virginia), who were husband and wife (collectively, the Jordans), had three daughters, defendants Angela Jordan (Angela) and Jennifer Jordan (Jennifer), and plaintiff Nicole Jordan (Nicole or plaintiff). (SAC, ¶¶ 1, 21.) (Note: To avoid confusion and for ease of writing, parties with the same surname will be referred to by their first names. No disrespect is intended.)
Homer G. Sheffield, Jr., now deceased and represented in this action through defendant Sheila T. Price as personal representative of his estate, was an estate planning attorney. (SAC, ¶¶ 5, 22.) Sheffield represented Borimir and Virginia in trust and estate matters from at least 1998 until October 2018. (SAC, ¶ 24.) Sheffield drafted the Borimir and Virginia Jordan Family Trust (Trust) and the first through fifth Trust amendments. (SAC, ¶ 26.)
On September 17, 1998, Borimir and Virginia established the Trust, reserving to themselves the power to amend the Trust. (SAC, ¶ 27.)
Nicole was the youngest child of the Jordans and suffered from limited mental disability. (SAC, ¶ 28.) Nicole applied for social security disability in 2003, which prompted the Jordans to amend the Trust a third time to secure Nicole. (SAC, ¶¶ 29-31.) The Third Trust amendment is a restated Trust amendment which contains a “no contest” clause. (SAC, ¶ 31.)
On August 16, 2010, the Jordans executed a Fourth Trust Amendment, appointing Sheffield and Justin M. Pearlman as successor co-trustees. (SAC, ¶ 32.) Each was given the power to name their own successor co-trustee upon notice, and if either was unable or unwilling to serve, the other would serve as sole successor trustee, but there was no provision for a sole successor trustee to name a successor trustee if either was unable or unwilling to serve as sole successor trustee. (Ibid.)
On May 11, 2012, the Jordans executed a Fifth Amendment to the Trust. (SAC, ¶ 33.)
Sheffield drafted three versions of a sixth trust amendment. (SAC, ¶ 34.) Plaintiff alleges that Sheffield and defendant Karin C. Stein, a paralegal employed by Sheffield’s law firm, defendant Rogers, Sheffield & Campbell, LLP (RSC), drafted the third version of the sixth trust amendment (3d Draft Sixth Amendment) to appoint Jacqueline Quinn as the successor trustee, but the Jordans were not given a copy of this third version for their approval and execution. (SAC, ¶ 3, 6, 9, 35.)
Under the 1998 version of the Trust, the trust property was to be distributed in equal shares to the Jordan’s three daughters after Borimir and Virginia’s death. (SAC, ¶ 37.) The first and second trust amendments did not change the beneficial interests of the Trust. (SAC, ¶¶ 39-40.) The Third Trust Amendment named Nicole as the sole beneficiary of residential real properties located at 1738 North Lynne, No. 38, Santa Maria, California (North Lynne Property) and 639 Lyndon Street, Monterey, California (Lyndon Street Property), and of $350,000 of Morgan Stanley securities. (SAC, ¶ 42.) When the Jordans decided to restate and amend the Trust in March 2007, they named Nicole as the main beneficiary to secure Nicole’s financial future after having already given substantial sums to Angela and Jennifer. (SAC, ¶ 43.)
Beginning in 2005 and until their final returns prior to their death in 2020, the Jordans claimed Nicole as a dependent adult with disability on their tax returns. (SAC, ¶ 46.)
After Nicole moved into her parents’ home, the Jordans promised Nicole to leave her the main residence located at 5513 Camino Cerralvo, Santa Barbara (the Residence). (SAC, ¶ 55.) On July 30, 2010, the Jordans instructed Sheffield to amend the Trust to leave Nicole the Residence, income-producing commercial real property located at 87 Santa Felicia, Goleta, California, and $100,000 in cash. (SAC, ¶ 56.) The Fourth Amendment includes these changes except the cash bequest was unchanged from $50,000. (Ibid.) The Fourth Amendment and updated other documents were executed on August 16, 2010. (SAC, ¶ 57.)
In Spring 2011, Nicole was violently raped while out at night. (SAC, ¶ 62.) She called Angela right after calling 911 and made a police report. (Ibid.) However, Angela told the police that Nicole was lying and made up the story to attract attention to herself. (Ibid.) The police refused to investigate, and Nicole was devastated. (Ibid.) Subsequently, Nicole suffered a mental breakdown and Angela used that to get their parents to amend the Trust a fifth time. (SAC, ¶ 64.)
Under duress from Angela and Jennifer, the Jordans instructed Sheffield to amend the Trust. (SAC, ¶ 67.) The Fifth Amendment, dated May 11, 2012, distributed the Trust assets between the three daughters in equal shares following the death of the surviving spouse. (Ibid.) Shortly thereafter, the Jordans changed their mind, and on July 10 and 12, 2012, Virginia instructed Sheffield to delete the entire Fifth Amendment, restoring the Fourth Amendment. (SAC, ¶ 68.)
On July 19, 2012, Sheffield prepared a draft Sixth Amendment (1st Draft Sixth Amendment) and sent it to the Jordans for signature. (SAC, ¶ 69.) Virginia cancelled the signing of the 1st Draft Sixth Amendment because Sheffield assured her that he had destroyed the Fifth Amendment in 2012 leaving the Fourth Amendment. (SAC, ¶ 73.)
In 2014, Adult Protective Services assigned defendant Jamie Cathleen Green to investigate claims made by Angela and Jennifer of financial elder abuse of the Jordans by Nicole. (SAC, ¶ 172.) Green was employed as a Social Services Worker for the Santa Barbara County, Department of Social Services Adult Protective Services (APS) program. (SAC, ¶ 4.) No charges were ever brought against Nicole. (SAC, ¶ 173.)
In August or early September 2018, Virginia tried to get Sheffield to prepare a new Sixth Amendment to leave the Residence, the Santa Felica Property, and $350,000 to Nicole, after she learned from him that his duplicate original copy of the Fifth Amendment had not been destroyed or revoked. (SAC, ¶¶ 76, 77.) This new draft Sixth Amendment (2d Draft Sixth Amendment) was given to Virginia at an office visit in September 2018 and was latter attached to a letter sent to Virginia on October 30, 2018. (SAC, ¶ 78.) Virginia was not happy with this draft and directed Sheffield to make additional changes to leave the income-producing properties together with the Residence and Morgan Stanley account balance to Nicole. (SAC, ¶ 79.) Sheffield did not act on Virginia’s instructions. (Ibid.)
Based on numerous events extracted from APS’s document disclosure, Nicole alleges that from September 2018 to 2020, Green started a personal witch hunt against Nicole having Sheffield and Stein as her allies in a scheme to frustrate Virginia and Borimir from signing the intended Sixth Amendment to favor Nicole by aiding Angela to obtain conservatorship of her parents. (SAC, ¶ 177.)
From September 2018 until sometime in 2020, Sheffield and Stein engaged in extensive correspondence with Angela, Jennifer, attorney Mark Wiestock, Green, and Morgan Stanley, ostensibly to assist Angela to obtain a conservatorship of Virginia and Borimir, all without the knowledge or consent of the Jordans. (SAC, ¶ 81.) In 2018, Sheffield and Stein used Wiestock as a conduit to pass on attorney-client privileged documents and information about the financial and legal affairs of the Jordans to Angela and Jennifer. (SAC, ¶ 105.)
On September 14, 2018, Virginia received at the Residence a letter from Sheffield attaching the first Quinn Fiduciary Agreement signed by Quinn. (SAC, ¶ 91.) On September 28, Virginia countersigned this agreement and delivered it to RSC’s office with a check for $1,000. (SAC, ¶ 92.)
Quinn prepared an “assessment report,” dated October 12, 2018, which makes untrue allegations about Nicole, including elder financial abuse, neglect, and drug use. (SAC, ¶ 100.)
Virginia signed a second Quinn Fiduciary Agreement on October 18, 2018, but Quinn never returned to the Residence to pick up the signed letter or provide any service to the Jordans. (SAC, ¶ 101.)
Virginia and Boromir did not agree to appoint Quinn as their power of attorney or trustee. (SAC, ¶ 109.)
In December 2018, Sheffield, Stein, and RSC stopped communicating with the Jordans because the Jordans refused to abandon their plan to amend the Trust for a sixth time to leave the Residence, the income-producing properties, and the Morgan Stanley securities to Nicole. (SAC, ¶ 115.)
Around October or December 2018, Sheffield informed Virginia that he was resigning as the Jordans’ estate planning attorney. (SAC, ¶ 142.)
The Jordans signed a letter, dated April 21, 2019, with a handwritten note to fax to Sheffield, asking, among things, for Sheffield to make the changes to the estate documents. (SAC, ¶ 117.) A different version of this letter was produced by RSC in the subsequent probate action, that was altered by RSC staff members. (SAC, ¶¶ 118-119.)
Borimir died on March 26, 2020. (SAC, ¶ 148.)
On April 16, 2020, Angela filed a petition for conservatorship of Virginia, attaching Quinn’s assessment report in support. (SAC, ¶ 149.) The court issued an order of temporary conservatorship on October 15, 2020, appointing Mark Watson, a professional fiduciary, as conservator. (Ibid.)
Virginia died on November 1, 2020. (SAC, ¶ 150.)
On November 11, 2020, Sheffield sent a resignation letter to Watson in which he stated that he was resigning as co-trustee of the Trust, also sending the Third, Fourth, and Fifth Amendments to the Trust with other estate documents. (SAC, ¶¶ 151, 152.)
On November 16, 2020, Pearlman, the other co-trustee appointed in the Fourth Amendment, resigned without naming a successor trustee. (SAC, ¶ 154.)
On December 11, 2020, Sheffield nominated Watson as successor trustee. (SAC, ¶ 156.)
Watson began administration of the Trust, sending notice to all beneficiaries in January 2021. (SAC, ¶ 159.)
Sheffield died in August 2021. (SAC, ¶ 157.)
On March 15, 2022, Nicole filed her probate petition to validate the Sixth Amendment, among other prayers for relief. (SAC, ¶ 188.) Angela and Jennifer demurred to the probate petition on the grounds of the statute of limitations. (SAC, ¶ 188.) The Probate court sustained the demurrer without leave to amend. (SAC, ¶ 189.) The Court of Appeal subsequently affirmed. (SAC, ¶ 191.)
On September 11, 2024, Angela filed a petition to determine that Nicole violated the no-contest clause of the Trust. (SAC, ¶ 192.) The parties settled whereby Nicole accepted $400,000 in final settlement from her parents’ Trust and Nicole dismissed her complaint against Angela and Jennifer. (SAC, ¶ 195.) The net value of the Trust was $3.7 million. (SAC, ¶ 197.)
(2) Procedural History
On June 22, 2023, Nicole filed the original complaint in this action, asserting 17 causes of action.
On September 5, 2023, RSC filed its demurrer and motion to strike to the original complaint, set for hearing on October 16.
On September 7, 2023, Price, as representative of the estate of Sheffield, filed her demurrer and motion to strike to the original complaint, set for hearing on October 23.
On September 14, 2023, Green filed her demurrer and motion to strike to the original complaint, set for hearing on October 16.
All demurrers and motions to strike were opposed by Nicole. The matters set for hearing on October 16, 2023, were then continued to October 23.
On October 23, 2023, the matters were continued to December 11, 2023.
On December 11, 2023, the court heard and ruled on these pending matters. The court sustained the demurrer of RSC on the grounds of the statute of limitations, with leave to amend, but did not rule on the other grounds asserted. The court sustained the demurrer of Price on the grounds of the statute of limitations, with leave to amend, as to all causes of action except the first cause of action for breach of fiduciary duty, which the court overruled; the court did not rule on the other grounds of the demurrer. The court granted the motions to strike by RSC and Price with leave to amend. The court sustained the demurrer of Green, with leave to amend based upon the failure to allege compliance with the claims presentation requirement, and did not otherwise rule on the other grounds of the demurrer or the motion to strike.
On January 8, 2024, Nicole filed her first amended complaint (FAC), asserting 13 causes of action.
On March 15, 2024, RSC and Price filed their demurer and motion to strike to the FAC, set for hearing on May 20. Also on March 15, Green filed her demurrer and motion to strike to the FAC, set for hearing on May 20. All demurrers and motions to strike were opposed by Nicole.
On May 20, 2024, the demurrers and motions to strike were continued to July 1.
On July 1, 2024, the court ruled on the demurrers of RSC and Price. The court sustained the demurrers, with leave to amend, (a) as to all causes of action to the extent they purport to assert representative claims, (b) to all causes of action made on the ground that the allegations are insufficient to support the conclusion that the attorney defendants breached any duty of care owed to Nicole as an intended beneficiary of her parents’ trust, (c) to the cause of action for breach of fiduciary duty (to the extent it is based upon the provision of attorney services), the cause of action for breach of the duty of confidentiality, and the cause of action for constructive trust, on the basis that the facts alleged in the FAC are insufficient to support the conclusion that any fiduciary duty was owed by the attorney defendants to Nicole; and (d) to the fraud-based causes of action, made on the ground that the allegations of the FAC are insufficient to support the conclusion that Nicole could have justifiably relied on any misrepresentations or non-disclosures by the attorneys, or suffered damages from any such justifiable reliance. The court sustained the demurrer, with leave to amend, to the cause of action against Price/ Sheffield against him in his capacity as trustee of the trust, based upon the fiduciary duty owed by a trustee to beneficiaries of a trust. The court overruled the demurrer (a) made to the claims based upon the provision of legal services on statute of limitations grounds, (b) based upon the mitigation of damages argument, and (c) the miscellaneous additional claims of defects which were only summarily presented by defendants’ demurrer. The motion to strike was ordered off calendar as moot.
On July 29, 2024, the court sustained the demurrer of Green, with leave to amend, on the ground of failure to allege compliance with the claim presentation requirements. The motion to strike was ordered off calendar as moot.
On March 17, 2025, Nicole filed the SAC. The SAC asserts eleven causes of action. Four causes of action are asserted against RSC and Sheffield (collectively, RSC defendants): (1) breach of fiduciary duty (SAC, ¶¶ 230-242); (2) intentional misrepresentation of facts (SAC, ¶¶ 243-250); (3) fraud and deceit by concealment (SAC, ¶¶ 251-265); (4(2d)) constructive fraud (SAC, ¶¶ 244(2d)-267(2d)). Two causes of action are asserted against Green: (4) fraud and deceit (SAC, ¶¶ 266-282, 243(2d)), (5) slander (SAC, ¶¶ 268(2d)-278(2d)). Four causes of action are asserted against all defendants: (7) conspiracy to defraud (SAC, ¶¶ 279(2d)-296); (8) tortious interference with expected inheritance (SAC, ¶¶ 297-314); (9) intentional infliction of emotional distress (SAC, ¶¶ 315-324); and (10) declaratory relief (SAC, ¶¶ 325-333.)
The court notes that the 285-page SAC suffers from numbering problems. There are two causes of action labeled as the fourth cause of action. (SAC, at pp. 64(1st), 67(2d).) This duplication is further complicated by the paragraph numbering that continues consecutively through paragraph 282 (SAC, p. 67) then inexplicably continues by starting over to repeat paragraph numbers 243 through 282 (SAC, pp. 67-73), and then continues with paragraph number 284 and consecutive numbers to the end. References to numbers followed by “(2d)” refer to the second numbered paragraph or cause of action bearing that number.
On May 13, 2025, the RSC defendants filed their demurrer and motion to strike to the SAC.
On May 19, 2025, Green filed her demurrer and motion to strike the SAC. Both demurrers and motions to strike are set for this hearing date of August 18.
On August 8, 2025, Nicole filed and served opposition to both demurrers and to the RSC defendants’ motion to strike. Although Nicole filed four oppositions, the opposition to the Green demurrer was filed twice with no opposition to the motion to strike filed.
On August 11, 2025, Green filed replies, among other things, objecting to the untimeliness of the oppositions.
On August 13, 2025, counsel for the RSC defendants filed a declaration stating that the untimely opposition have deprived the RSC defendants of the opportunity to respond to the opposition.
Analysis:
(1) Untimely Opposition
Opposition was due to each of the demurrers and motions nine court days prior to this hearing date of August 18, 2025, that is, on August 5. (See Code Civ. Proc., § 1005, subd. (b).) Each of the oppositions were filed by Nicole on Friday, August 8. Reply papers were due on Monday, August 11. ((See Code Civ. Proc., § 1005, subd. (b).) All parties object to the untimely filing of opposition. The RSC defendants further explain that the untimely filing prejudiced them by making the filing of substantive opposition effectively impossible. On August 14, counsel for plaintiff filed a declaration stating that the late opposition was the result of miscalculating the due date and requesting that the court either shorten time to allow the late oppositions and replies or continue the hearing on the demurrers and motions.
The court has discretion to refuse to consider a late filed paper. (Cal. Rules of Court, rule 3.1300(d).) The court will address the untimeliness issue separately for the Green demurrer and motion to strike from the RSC defendants’ demurrer and motion to strike. As discussed below, the Green demurrer and motion to strike raises one central issue for which the reply papers are sufficient to resolve those the demurrer and motion to strike at this hearing without prejudice to either party. The court will consider the opposition and rule on the merits as discussed below.
On the other hand, the RSC defendants’ demurrer and motion to strike raises multiple issues. Given the large number of issues and the judicial resources necessary to address these issues, even without the untimeliness issue the court would have continued the demurrer and motion to allow the court sufficient time to address those issues comprehensively. Under all of these circumstances, the court will continue the hearing for the RSC defendants’ demurrer and motion to strike to allow the RSC defendants time to file a substantive reply.
(2) Green Demurrer
“We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]” (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6, internal quotation marks omitted.)
The court previously sustained Green’s demurrer to all causes of action of the FAC by Green on the grounds that Green had failed to allege compliance with the claim presentation requirements of the Government Claims Act (Gov. Code, § 810 et seq., sometimes referred to as the Tort Claims Act). The court granted leave to amend for one final opportunity for Nicole to allege compliance with the claim presentation requirement or to allege facts showing that the claim presentation requirements do not apply.
In the SAC, Green again does not allege compliance with the claim presentation requirements, but instead asserts that the claim presentation requirements do not apply:
“Defendant Jamie Cathleen Green (‘GREEN’) is an individual and was, at all times relevant … hereto, employed as a Social Services Worker for the Santa Barbara County Department of Social Services Adult Protective Services (‘APS’) program. However, she is being sued in her individual capacity for acting outside the scope of her government job authority when she fraudulently conspired with other defendants and in slandering/defaming Plaintiff. Plaintiff is not suing APS for any cause of action and Government Code § 911.2 does not apply to Plaintiff’s causes of action against GREEN for fraud, conspiracy to defraud, intentional interference with expected inheritance and slander.” (SAC, ¶ 4.)
“Green further alleges that Plaintiff did not allege compliance with the claims presentation requirements, instead, she has alleged the requirements were unnecessary because she is suing Ms. Green in her individual capacity because she was acting outside the scope of her employment.” (Green Demurrer Opposition, at p. 2.)
Green agrees that plaintiff has not alleged compliance with the claims presentation requirements of the Government Claims Act and requests that the court take judicial notice of the government claim plaintiff did submit and the County of Santa Barbara’s notice returning that claim for failure to present a timely claim. (Note: Green’s unopposed requests for judicial notice of its exhibits A and B are granted. (See Evid. Code, § 452, subd. (h).)) Green argues that plaintiff has alleged conduct that falls within the Government Claims Act requirements and hence bars Green’s action for failure to make a timely claim.
As the court previously stated:
“Under the terms of Government Code section 905, any action for money or damages against a local public entity may not be maintained unless a written claim has first been presented. The required contends of such a claim are articulated in Government Code section 910.
“Pursuant to Government Code section 911.2(a) a claim relating to a cause of action for death or for injury to a person or to personal property or growing crops must be presented to the public agency no later than six months after accrual of the cause of action. A claim related to any other cause of action must be presented no later than one year after accrual of the cause of action. (Gov. Code, § 911.2, subd. (a).) The statutory time limits within which a claim must be presented to a public entity are mandatory. (Wood v. Riverside Gen. Hosp. (1994) 25 Cal.App.4th 1113, 1119.)
“Under Government Code section 911.3(a), when a claim is subject to the six month time limit for presentation of a claim, and is presented after such time without an application to present a late claim made pursuant to Section 911.4, the agency may, at any time within 45 days after the claim is presented, give written notice to the person presenting the claim that it was not timely filed, and is being returned without further action. The notice shall inform the claimant that his or her only recourse is to apply for leave to present a late claim.
“The agency must act on the claim within 45 days after the claim is presented. (Gov. Code, § 912.4, subd. (a).) If the agency fails or refuses to act on a claim within the time prescribed, the claim will be deemed to have been rejected by the board on the last day of the period within which the board was required to act upon the claim. (Gov. Code, § 912.4, subd. (c).)
“No suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented, until a written claim therefor has been presented to the public entity and has been acted upon or deemed to have been rejected. (Gov. Code, § 945.4.) This provision is made applicable to claims against public employees by Government Code section 950.6(a), which contains similar provisions.
“Any plaintiff filing a complaint against a public entity (or public employee) must allege facts demonstrating or excusing compliance with the claim presentation requirement. If they do not, their complaint is subject to a general demurrer for failure to state facts sufficient to constitute a cause of action. (Malear v. State of California (2023) 89 Cal.App.5th 213, 220, quoting State of California v. Superior Court (Boddle) (2004) 32 Cal.4th 1234, 1243.)” (Minute Order, filed July 29, 2025, at p. 7, underscoring omitted.)
Because it is undisputed that plaintiff has not presented an effective government claim against Green, a public employee, plaintiff has not stated a cause of action against a public employee if a claim was required to be presented.
Plaintiff argues that no claim was required because Green was not acting within the course and scope of Green’s employment. (See Neal v. Gatlin (1973) 35 Cal.App.3d 871, 877.)
“As used in the Tort Claims Act, ‘[t]he phrase “scope of his employment” is intended to make applicable the general principles that the California courts use to determine whether the particular kind of conduct is to be considered within the scope of employment in cases involving actions by third persons against the employer for the torts of his employee.’ [Citation.]” (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1003.)
“An employee’s willful and malicious intentional torts, including those that might contravene an employer’s express policies, do not automatically fall outside the scope of employment. [Citation.] But to fall within the scope of employment, the intentional misconduct must be ‘an “outgrowth” of the employment’ and the risk of tortious injury must be ‘ “ ‘inherent in the working environment’ ” ’ or ‘ “ ‘typical of or broadly incidental to the enterprise [the employer] has undertaken.’ ” ’ [Citations.] Similarly, the intentional conduct must be foreseeable from the employee’s duties, which means ‘ “in the context of the particular enterprise,” ’ the conduct was ‘ “not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.” ’ [Citation.]” (Daza v. Los Angeles Community College Dist. (2016) 247 Cal.App.4th 260, 268.)
“California no longer follows the traditional rule that an employee’s actions are within the scope of employment only if motivated, in whole or part, by a desire to serve the employer’s interests.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 297.) “[T]he tortious occurrence must be ‘a generally foreseeable consequence of the activity.’ In this usage … foreseeability ‘merely means that in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business.’ [Citations.]” (Id. at p. 299.)
Plaintiff’s causes of action against Green arise out of allegations of wrongdoing against Green acting in her position as an employee of the Adult Protective Services. (E.g., SAC, ¶¶ 4, 177.) All of this conduct is an outgrowth of employment with APS and inherent in the working environment of an APS worker. As alleged, Green’s conduct all involved APS investigation into the circumstances of the Jordans as initiated by Angela and Jennifer, and follow up activity ostensibly protective of the Jordans.
Moreover, Green is alleged to be an APS employee assigned to investigate allegations involving the mistreatment of elders, setting one set of siblings against another. It is entirely foreseeable that such an employee may get emotionally involved in the circumstances favoring one set of siblings over another and to take steps consistent with that emotional involvement. Such steps include, for example, making statements in conservatorship proceedings. (E.g., SAC, ¶ 269.). These steps constitute the sort of activity, even if willful and false, that would foreseeably be within the scope of Green’s employment. (See Mazzola v. Feinstein (1984) 154 Cal.App.3d 305, 311–312 [county supervisor acted within scope of employment while attending meeting of fact‑finding committee at which she allegedly slandered plaintiffs].) Green’s alleged statements and actions are all derivative of her investigatory and protective work as an APS employee. Bare allegations that Green was acting outside the scope of her employment are conclusions that are insufficient to meet plaintiff’s pleading burden to take this conduct outside of the scope of Green’s employment by APS.
As a consequence, all of the causes of action against Green arise out of alleged activity that is within the scope of Green’s public employment and for which an effective government claim was required before suit. Green’s demurrer will therefore be sustained. Insofar as Green has had multiple pleading opportunities to address this issue, the court will sustain the demurrer without leave to amend.
Because this analysis is based on the claim presentation requirement and is sufficient to resolve the demurrer, it is not necessary to determine whether, or to what extent, Green’s alleged actions and statements may be privileged or subject to governmental immunity, or to address other arguments made by the parties.
This disposition also moots Green’s motion to strike.
(3) RSC Defendants Demurrer and Motion
As discussed above, the court will continue the demurrer and motion to strike of the RSC defendants to permit the filing of a reply.