Nicole Emily Jordan vs Rogers Sheffield & Campbell LLP et al

Case Number

23CV02702

Case Type

Hearing Date / Time

Mon, 02/02/2026 - 10:00

Nature of Proceedings

CMC; Demurrer to SAC; Motion to Strike SAC

Tentative Ruling

Nicole Emily Jordan, et al., v. Rogers, Sheffield & Campbell, LLP, et al. 

Case No. 23CV02702

           

Hearing Date: February 2, 2026                                

HEARING:              (1)       Demurrer of Attorney Defendants to Second Amended Complaint

                            

                             (2)       Motion to Strike 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 defendants Sheila Price and Rogers Sheffield & Campbell, LLP, to plaintiff Nicole Emily Jordan’s second amended complaint is sustained, without leave to amend, as to the second cause of action for intentional misrepresentation of facts, fourth cause of action for constructive fraud, seventh cause of action for conspiracy to defraud, and tenth cause of action for declaratory relief. The demurrer is overruled as to the first cause of action for breach of fiduciary duty, third cause of action for concealment, eighth cause of action for intentional interference with expected inheritance, and ninth cause of action for intentional infliction of emotional distress.

(2)       The motion to strike of defendants Sheila Price and Rogers Sheffield & Campbell, LLP, is denied.

Background:

(1)       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). (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. (Sheffield), now deceased and represented in this action through defendant Sheila T. Price (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, including depression from the age of minority. (SAC, ¶ 28.) Nicole applied for social security disability in 2003 when she found it difficult to work and concentrate on tasks, which prompted the Jordans to amend the Trust a third time to secure Nicole (Third Trust Amendment). (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 & Ex. 4.) 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. (SAC, ¶ 32.)

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 Price as the personal representative of Sheffield (collectively, Attorney 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 Attorney 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 were set for hearing on August 18.

On August 18, 2025, the court sustained defendant Green’s demurrer to the SAC without leave to amend on the grounds that the SAC failed to allege compliance with the Government Claims Act presentation requirements. The court continued the demurrer and motion to strike by the Attorney Defendants.

On November 3, 2025, the court again continued the demurrer and motion to strike of the Attorney Defendants to this hearing. This demurrer is opposed.

Analysis:

(1)       Legal Standard on Demurrer

“Because the function of a demurrer is to test the sufficiency of a pleading as a matter of law, we … assume the truth of the allegations in the complaint, but do not assume the truth of contentions, deductions, or conclusions of law. [Citation.] It is error for the trial court to sustain a demurrer if the plaintiff has stated a cause of action under any possible legal theory, and it is an abuse of discretion for the court to sustain a demurrer without leave to amend if the plaintiff has shown there is a reasonable possibility a defect can be cured by amendment.” (California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 247 (California Logistics).) “The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded.” (Payne v. National Collection Systems, Inc. (2001) 91 Cal.App.4th 1037, 1043.) “[I]n ruling on a demurrer the trial court may take into account in addition to the complaint itself any matter that may be properly considered under the doctrine of judicial notice.” (Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 1133-1134.)

(2)       First Cause of Action (COA) for Breach of Fiduciary Duty

“The elements of a cause of action for breach of fiduciary duty are: (1) existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach.” (Gutierrez v. Girardi (2011) 194 Cal.App.4th 925, 932.)

“A fiduciary duty is a duty to act with the utmost good faith for the benefit of the other party. It can arise from a recognized legal relationship such as guardian and ward, trustee and beneficiary, principal and agent, or attorney and client or from a ‘confidential relationship’ ... founded on a moral, social, domestic, or merely personal relationship. The ‘essential elements’ of a confidential relationship have been described as 1) The vulnerability of one party to the other which 2) results in the empowerment of the stronger party by the weaker which 3) empowerment has been solicited or accepted by the stronger party and 4) prevents the weaker party from effectively protecting itself.” (Thomas v. Regents of University of California (2023) 97 Cal.App.5th 587, 629 (Thomas).)

“[B]efore a person can be charged with a fiduciary obligation, he must either knowingly undertake to act on behalf and for the benefit of another, or must enter into a relationship which imposes that undertaking as a matter of law.” (Thomas, supra, 97 Cal.App.5th at p. 629.) The SAC alleges two bases for a fiduciary duty, the attorney-client relationship with the Jordans and Sheffield/Price’s status as co-trustee of the Trust.

The SAC alleges that the Attorney Defendants were estate attorneys for the Jordans. (SAC, ¶ 231.) The Attorney Defendants drafted the Trust and amendments thereto. (SAC, ¶ 234.) There are no allegations that the Attorney Defendants were engaged as Nicole’s attorney, but Nicole was a beneficiary of the Trust.

“A lawyer has a duty to a nonclient third party only if the client’s intent to benefit that third party (in the way the third party asserts in their malpractice claim) is ‘clear,’ ‘certain’ and ‘undisputed.’ [Citations.] In other words, courts will recognize a duty to a nonclient plaintiff—and thereby allow that plaintiff to sue the lawyer for legal malpractice—only when the plaintiff, as a threshold matter, establishes that the client, in a clear, certain and undisputed manner, told the lawyer, ‘Do X’ (where X benefits the plaintiff). (Gordon v. Ervin Cohen & Jessup LLP (2023) 88 Cal.App.5th 543, 556 (Gordon).) “An attorney may be liable to testamentary beneficiaries only… if due to the attorney’s professional negligence the testamentary intent in a legal instrument is frustrated and the beneficiaries clearly designated by the testator lose their legacy as a direct result of such negligence.” (Bucquet v. Livingston (1976) 57 Cal.App.3d 914, 921.)

Here, there was no alleged clear, certain, and undisputed intent in a testamentary document drafted by the Attorney Defendants that provided the benefits Nicole is seeking in the SAC, but frustrated by professional error. Rather, the SAC alleges the Attorney Defendants drafted multiple versions of a proposed sixth amendment to the Trust that were rejected and unexecuted by the Jordans. (SAC, ¶¶ 34-36, 69-79.) The Jordans ultimately “signed their own version of the Sixth Trust Amendment on their own on July 15, 2019.” (SAC, ¶ 284; see also id. at ¶ 145 & Ex. 1.) There is no basis to hold the Attorney Defendants professionally liable to Nicole for error pertaining to the handling or drafting of a document executed by the Jordans—the sixth amendment attached to the SAC as exhibit 1— that the Attorney Defendants did not draft. The SAC fails to allege a duty from the Attorney Defendants in the context of the fiduciary attorney-client relationship that caused Nicole the damages she seeks to recover in the SAC.

As to the alleged co-trustee duties, Sheffield/Price was named as a successor co-trustee of the Trust under the Fourth Trust Amendment. (SAC, ¶ 234.) Jordan was an intended beneficiary of the Trust. (SAC, ¶ 233.) When Virginia passed away on November 1, 2020, Sheffield/Price became co-trustee of the trust. (SAC, ¶ 150, Ex. 4 at p. 4.).) On November 11, 2020, Sheffield/Price resigned as co-trustee. (SAC, ¶ 151, Ex. 7.) As co-trustee in November 2020, Sheffield/Price had a fiduciary duty to Nichol who is a beneficiary of the Trust. (See Thomas, supra, 97 Cal.App.5th at p. 629.)

As to the element of breach, “[t]he trustee has the duty to administer the trust according to the trust instrument. (Prob. Code, § 16000.) The trustee also must deal impartially with all beneficiaries. (§ 16003.) If a trustee is given discretionary power, the trustee must exercise his or her power reasonably. (§ 16080.) Even if a trustee is given ‘sole’ and ‘absolute’ discretion, he or she must act in accordance with fiduciary principles and must not act in bad faith or in disregard of the purposes of the trust. (§ 16081, subd. (a).)” (Penny v. Wilson (2004) 123 Cal.App.4th 596, 603.) “The trustee or other fiduciary owes undivided duty to his beneficiary and cannot place himself in any position which would expose him to the temptation of acting contrary to the best interests of his beneficiaries. [Citation.] Any violation of such duties constitutes a fraud against the beneficiaries.” (In re Vokal’s Estate (1953) 121 Cal.App.2d 252, 257.)

The SAC alleges that Sheffield/Price breached the fiduciary duty to Nicole by failing to disclose to Watson, the appointed trustee succeeding Sheffield/Price, and to Nicole, various irregularities pertaining to the prior administration of the Trust of which Sheffield/Price had unique knowledge. (SAC, ¶¶ 150-155, 157, 238, 253-257.) Sheffield/Price had engaged in an undisclosed campaign to intentionally prevent the Jordans from executing a sixth trust amendment that would have been more favorable to Nicole despite the Jordans’ desire to do so. (SAC, ¶¶ 238, 160-171.)  The SAC alleges that Sheffield/Price failed to disclose that the Jordans had been attempting to amend the trust a sixth time to benefit Nicole. (SAC, ¶ 153.) These alleged non-disclosures during the timeframe Sheffield/Price was a co-trustee are sufficient to state a breach of fiduciary duty by Sheffield/Price to Nicole as a beneficiary of the Trust. (See California Logistics, supra, 161 Cal.App.4th at p. 247 [“It is error for the trial court to sustain a demurrer if the plaintiff has stated a cause of action under any possible legal theory”].)

The SAC alleges that Nicole was damaged, including “[l]oss of … of her rightful and intended inheritance which she would have received but … for Defendants’ breach of fiduciary duties.” (SAC, ¶ 240.) These allegations are sufficient at the pleading stage to state a claim for breach of fiduciary duty under the “substantial factor” causation test, even if the events in litigation over the Trust may have also contributed to Nichol’s damages. “[A] defendant cannot avoid responsibility just because some other person, condition, or event was also a substantial factor in causing the plaintiff’s harm; but conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.” (TRC Operating Co., Inc. v. Chevron USA, Inc. (2024) 102 Cal.App.5th 1040, 1099.) On demurrer, the court must accept as true Nicole’s allegations that she was harmed by these breaches.

The one-year statute of limitations in Code of Civil Procedure section 340.6 asserted by the Attorney Defendants does not apply to Nicole’s fiduciary duty claim to the extent this claim is not based on professional legal services. (See Lee v. Hanley (2015) 61 Cal.4th 1225, 1236-1238.) Nicole’s fiduciary duty claim based on Sheffield/Price’s status as trustee is not dependent on Sheffield/Price’s professional duties as an attorney.

The court will overrule the demurrer as to the first COA for breach of fiduciary duty.

(3) Second COA for Intentional Misrepresentation of Facts

“To establish a claim for deceit based on intentional misrepresentation, the plaintiff must prove seven essential elements: (1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff’s reliance on the defendant’s representation was a substantial factor in causing that harm to the plaintiff.” (Manderville v. PCG&S Group, Inc. (2007) 146 Cal.App.4th 1486, 1498, italics omitted.)

The SAC alleges that the Attorney Defendants made misrepresentations of fact in February and June 2022 pertaining to documents produced in litigation over the Trust. The SAC alleges these misrepresentations prevented Nicole from understanding the true status of the Trust and caused the late filing of her petition pertaining to the Trust in March 2022. (SAC, ¶¶ 243-249.) The SAC does not specify the details of the misrepresentations made in February and June 2022, who made them, how or why Nicole justifiably relied on them to her detriment, or other specifics.

“Fraud must be pleaded with particularity. General and conclusory allegations are inadequate.… ‘This particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’ ” (Lauckhart v. El Macero Homeowners Assn. (2023) 92 Cal.App.5th 889, 903-904.) A “specific pleading is necessary to ‘establish a complete causal relationship’ between the alleged [fraud] and the harm claimed to have resulted therefrom.” (Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1092.)

The SAC has not stated the elements of fraud by intentional misrepresentation because, among other defects, the SAC does not allege specific misrepresentations of fact by the Attorney Defendants to Nicole. It does not appear that this COA can be amended to state a valid claim since the court ruled Nicole’s petition was barred by the 120-day statute of limitations that expired well before the alleged misrepresentations in February or June 2022. (SAC, ¶¶ 159, 189; see Minute Order on Demurrer to FAC, July 1, 2024.) Nicole cannot reasonably attribute the harm from her late-filed petition to misrepresentations that occurred well after the statute of limitations on that petition had run. There could be no justifiable reliance or causation under these circumstances. Nicole has had multiple opportunities to allege fraud by intentional misrepresentation but has failed to do so.

The court will sustain the demurrer to the second COA for intentional misrepresentation of facts without leave to amend.

(4)       Third COA for Concealment

“[T]he elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (SCC Acquisitions Inc. v. Central Pacific Bank (2012) 207 Cal.App.4th 859, 864 (SCC Acquisitions Inc.).)

“Less specificity should be required of fraud claims ‘when it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy,’ [citation] ‘[e]ven under the strict rules of common law pleading, one of the canons was that less particularity is required when the facts lie more in the knowledge of the opposite party....’ ” (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384.)

As discussed above, the SAC alleges a fiduciary duty in November 2020 when Sheffield/Price was a co-trustee of the Trust and Nicole was a beneficiary. When Sheffield/Price was acting as co-trustee, the SAC alleges Sheffield/Price did not disclose the irregularities pertaining to the prior management of the trust and other important facts. (SAC, ¶¶ 253-257.) The SAC alleges that this concealment was intentional with the intent to induce reliance, Nicole was unaware of the concealed facts, and that she would have acted differently to timely take action to protect her expected inherence had she known of the concealed facts. (SAC, ¶¶ 259-264.) The elements of concealment have been alleged.

The court will overrule the demurrer to the third COA for concealment.

(5)       Fourth COA for Constructive Fraud

“Constructive fraud ‘is a unique species of fraud applicable only to a fiduciary or confidential relationship.’ [Citation.] Constructive fraud ‘arises on a breach of duty by one in a confidential or fiduciary relationship to another which induces justifiable reliance by the latter to his prejudice.’ [Citation.] Actual reliance and causation of injury must be shown. [Citations.] ‘In its generic sense, constructive fraud comprises all acts, omissions and concealments involving a breach of legal or equitable duty, trust, or confidence, and resulting in damages to another. [Citations.] Constructive fraud exists in cases in which conduct, although not actually fraudulent, ought to be so treated—that is, in which such conduct is a constructive or quasi fraud, having all the actual consequences and all the legal effects of actual fraud.” [Citation.] ‘[W]hether a fiduciary duty has been breached, and whether [conduct] constitutes constructive ... fraud, depends on the facts and circumstances of each case.’ ” (Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1131.)

The SAC alleges constructive fraud based on the Attorney Defendants’ status as attorneys for the Jordans. (SAC, ¶¶ 244-266.) As discussed above, the allegations in the SAC are not sufficient to establish a fiduciary duty to Nicole, a third party to this attorney-client relationship, based on the professional duties of the Attorney Defendants. (See Gordon, supra, 88 Cal.App.5th at p. 556.) The SAC does not allege the elements of constructive fraud. Nicole has had multiple opportunities to allege the bases for fraud.

The court will sustain the demurrer to the fourth COA for constructive fraud without leave to amend.

(6)       Seventh COA for Conspiracy to Defraud

“Conspiracy is not a separate tort, but a form of vicarious liability by which one defendant can be held liable for the acts of another.” (IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 652.) In her conspiracy to defraud allegations, Nicole alleges in part that, “[a]lthough BORIMIR and VIRGINIA signed their own version of the Sixth Trust Amendment on their own on July 15, 2019 (Exhibit 1) and appointed NICOLE, the signature page of the signed version was replaced by ANGELA or JENNIFER with the signature of another deed, which confused NICOLE and led to the late filing of her Probate Petition.” (SAC, ¶ 284.) Nicole does not allege that the Attorney Defendants had any knowledge or participation in this event or how the altered document caused her late-filed petition in any manner for which the Attorney Defendants could be responsible. The elements of fraud by misrepresentation have not been alleged against the Attorney Defendants. Nicole has had multiple opportunities to allege the elements of fraud by intentional misrepresentation but has failed to do so.

The court will sustain the demurrer to the seventh COA for conspiracy to defraud without leave to amend.

(7)       Eighth COA for Tortious Interference with Expected Inheritance

“The tort of intentional interference with expected inheritance was first recognized in California in 2012. [Citation.] To establish a defendant committed the tort, a plaintiff must prove six elements. ‘First, the plaintiff must p[rove] he [or she] had an expectancy of an inheritance. It is not necessary to [prove] that ‘one is in fact named as a beneficiary in the will or that one has been devised the particular property at issue. [Citation.] That requirement would defeat the purpose of an expectancy claim.... It is only the expectation that one will receive some interest that gives rise to a cause of action. [Citations.]’ [Citation.] Second, as in other interference torts, the [plaintiff] must [prove] causation. ‘This means that, as in other cases involving recovery for loss of expectancies ... there must be proof amounting to a reasonable degree of certainty that the bequest or devise would have been in effect at the time of the death of the testator ... if there had been no such interference.’ [Citation.] Third, the plaintiff must p[rove] intent, i.e., that the defendant had knowledge of the plaintiff’s expectancy of inheritance and took deliberate action to interfere with it. [Citation.] Fourth, the [plaintiff] must [prove] that the interference was conducted by independently tortious means, i.e., the underlying conduct must be wrong for some reason other than the fact of the interference. [Citation.] Fi[fth], the plaintiff must p[rove] he [or she] was damaged by the defendant’s interference. [Citation.] [¶] [And, sixth], [the] defendant must direct the independently tortious conduct at someone other than the plaintiff.” (Gomez v. Smith (2020) 54 Cal.App.5th 1016, 1025-1026 (Gomez).)

The SAC alleges that Nicole had an expected inheritance, and that Sheffield/Price violated duties as the Jordans’ attorney and frustrated their testamentary wishes to leave certain assets to Nicole. (SAC, ¶¶ 238, 160-171.) In 2019, after the Attorney Defendants had withdrawn as counsel in 2018, the SAC alleges that Virginia wrote to Sheffield/Price her intent as to protect Nicole had not been accomplished. (SAC, ¶ 121 [“Our estate is in solid danger of being wrongly distributed.”]; see also Id. at ¶¶ 117-120.) In an April 2019 letter alleged in the SAC, Virginia states in part to Sheffield/Price: “Angie has been doing this to NICOLE for 7 years. That you should drop us, at our age, is unfair to us and will leave us greatly harmed. Angie is a disbarred attorney who is determined to destroy her sister NICOLE. Her campaign of slurring NICOLE’s name has been vicious and long.” (SAC, ¶ 117.) According to the SAC, the Attorney Defendants later materially altered this document. (SAC, ¶ 118.)

The alleged wrongful acts directed at the Jordans include the coordination of a false assessment report about Nicole so that Angela could obtain a conservatorship over the Jordans to prevent the Jordans from fulfilling their testamentary desire to protect Nicole’s financial future. (SAC, ¶¶ 301-302, 317.) There is a sixth trust amendment attached to the SAC that evidences the Jordans’ intent to leave Nicole assets that she did not receive. (SAC, Ex. 1.) The SAC also alleges that the Attorney Defendants had knowledge of the Jordans’ intent via the draft sixth trust amendments prepared by the Attorney Defendants. The SAC alleges that the Attorney Defendants later failed to disclose to the newly appointed trustee various irregularities and the repeated attempts to prepare a sixth amendment to benefit Nicole. (SAC, ¶¶ 150-155, 157, 160-171, 238, 253-257.) The SAC alleges a COA for tortious interference with expected inheritance.

The court will overrule the demurrer to the eighth COA for tortious interference with expected inheritance.

(8)       Ninth COA for Intentional Infliction of Emotional Distress (IIED)

“The elements of a cause of action for IIED are as follows: (1) defendant engaged in extreme and outrageous conduct (conduct so extreme as to exceed all bounds of decency in a civilized community) with the intent to cause, or with reckless disregard to the probability of causing, emotional distress; and (2) as a result, plaintiff suffered extreme or severe emotional distress. [Citation] Additionally, ‘[i]t must be conduct directed at the plaintiff, or occur in the presence of the plaintiff of whom the defendant is aware.’ [Citation.] ‘The requirement that the defendant’s conduct be directed primarily at the plaintiff is a factor which distinguishes intentional infliction of emotional distress from the negligent infliction of such injury.’ ” (Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1273.) “Severe emotional distress means, then, emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it.” (Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 397.) “Behavior may be considered outrageous if a defendant abuses a position which gives him power to damage the plaintiff’s interest.” (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1123.) “Where reasonable men can differ, the jury determines whether the conduct has been extreme and outrageous to result in liability.” (Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1614.)

The SAC alleges that the Attorney Defendants engaged in outrageous acts including “[m]isrepresenting material facts regarding the Trust,” “[c]oncealing trust-related information from Plaintiff, despite Plaintiff’s legal rights as a beneficiary,” “[m]anipulating or misleading Plaintiff into believing she had no rights or legal claims regarding the Trust,” “[a]cting in bad faith to delay, obstruct, or interfere with Plaintiff’s rightful inheritance,” “falsely accusing her of stealing her parents’ money and neglecting the care of her parents,” and “[f]alsely accusing Plaintiff of elder neglect and financial abuse.” (SAC, ¶ 317.) The SAC states a claim for intentional infliction of emotional distress. 

As to the argument by the Attorney Defendants that Nicole did not have leave to assert this COA, the court will treat Nicole’s opposition as a request for leave and treat the SAC as the amended pleading filed pursuant to that leave. (See Code Civ. Proc., § 128, subds. (a)(3) & (a)(8); Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1377-1378 [discussing court’s inherent powers to fashion procedures to ensure the orderly and efficient conduct of the court’s business].) “Leave to amend should be denied only where … no liability exists and no amendment would change the result.” (Edwards v. Superior Court (2001) 93 Cal.App.4th 172, 180.)

The court will overrule the demurrer to the ninth COA for intentional infliction of emotional distress.

(9)       Tenth COA for Declaratory Relief

“To qualify for declaratory relief, [a party] would have to demonstrate its action presented two essential elements: ‘(1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to [the party’s] rights or obligations.” (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909.) “Any person interested under a written instrument, excluding a will or a trust, or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property, or with respect to the location of the natural channel of a watercourse, may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties ….” (Code Civ. Proc., § 1060.)

The SAC does not allege a proper subject of declaratory relief. This COA seeks an order tolling the applicable statutes of limitation. This is not a properly asserted COA and there does not appear to be a basis to amended it to state a COA for declaratory relief.

The court will sustain the demurrer to the tenth COA for declaratory relief without leave to amend.

(10)     Attorney Defendants’ Motion to Strike

The Attorney Defendants seek to strike the allegations of punitive damages and general damages for emotional distress in the SAC. This motion is opposed.

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof ….” (Code Civ. Proc., § 435, subd. (b)(1).) “The court may, upon a motion made pursuant to [s]ection 435, or at any time in its discretion, and upon terms it deems proper: [¶] … [s]trike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436, subd. (a).) “In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255 (Clauson).)

As to punitive damages, “[i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code, § 3294, subd. (a).) “Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim.” (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.) “In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson, supra, 67 Cal.App.4th at p. 1255.) “ ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff ….” (Civ. Code, § 3294, subd. (c)(1).)

As discussed above, the SAC alleges that the Attorney Defendants intended to cause Nicole injury by breaching fiduciary duties, concealing facts during the timeframe that Sheffield/Price acted as co-trustee for the Trust in November 2020, and engaging in acts intended to cause Nicole emotional distress and interfere with her expected inheritance. This is sufficient to support an allegation of malice. (See Civ. Code, § 3294, subd. (c)(1).)

As to general damages for emotional distress, the SAC alleges a COA for breach of fiduciary duty, concealment, interference with expected inheritance, and intentional infliction of emotional distress (IIED). The fiduciary-based claims surviving the demurrer are based on Sheffield/Price’s duty as trustee and not on professional services as an attorney. The IIED claim is also based on several actions by the Attorney Defendants that were not undertaken as part of professional attorney services. These causes of action allow for the recovery of emotional distress.

The court will deny the motion to strike.

(11)     Attorney Defendants’ Request for Judicial Notice

The court will grant the Attorney Defendants’ request for judicial notice as to Exhibit A, Petition for Order Confirming Petitioner as Trustee and Confirming Trust Assets (Santa Barbara Superior Court Case No. 21PR00040), Exhibit B, Order Confirming Mark Watson as Trustee and Confirming Trust Assets (Santa Barbara Superior Court Case No. 2l PR00040), Exhibit C, Nicole Jordan’s Petition to (1) Establish Her as Sole Successor Trustee & Sole Beneficiary and to Establish Trust Assets Under Sixth Trust Amendment, and For Declaratory Relief (Santa Barbara Superior Court Case No. 2l PR00040), Exhibit D, Minute Order dated January 19,2023 (Santa Barbara Superior Court Case No. 2l PR00040) and Exhibit E, Opinion of the California Court of Appeal (California Court of Appeal Case No. B327289.). (See Evid. Code, § 452, subd. (d)(1).)

To the extent granted, judicial notice of the documents described above extends to the existence of court records but does not extend to the truth of facts contained in the documents that are subject to dispute or to any hearsay or irrelevant matter. (See Johnson & Johnson v Superior Court (2011) 192 Cal.App.4th 757, 768.)