Tentative Ruling: Angela Moritz Blinkman et al vs Courtney Desoto et al
Case Number
25CV02538
Case Type
Hearing Date / Time
Mon, 03/30/2026 - 10:00
Nature of Proceedings
CMC; Demurrers (3)
Tentative Ruling
Angela Moritz Blinkman, et al. v. Courtney DeSoto, et al.
Case No. 25CV02538
Hearing Date: March 30, 2026
HEARINGS: 1. Demurrer of Defendant Courtney DeSoto to Plaintiffs’ First Amended Complaint
2. Demurrer of Defendant Marisa K. Beouy to Plaintiffs’ First Amended Complaint
3. Demurrer of Defendant Cristi Michelon Vasquez to Plaintiffs’ First Amended Complaint
ATTORNEYS: For Plaintiffs Angela Moritz and Thomas Gunter Moritz: Michael P. Ring, Iris L. Ring, Scott B. Fooks
For Defendant Courtney DeSoto: Dan L. Longo, Neil G. MacMillan
For Defendant Marisa K. Beouy: Melissa J. Fassett, Cory T. Baker
For Defendant Cristi Michelon Vasquez: Brian Slome, Pamela Albanese
TENTATIVE RULINGS:
Defendants’ demurrers to plaintiffs’ first amended complaint are overruled. Defendants shall file and serve their answers to the first amended complaint no later than April 20, 2026.
Background:
On January 16, 2026, plaintiffs Angela Moritz Blinkman (Blinkman) and Thomas Gunter Moritz (Moritz) (collectively “plaintiffs”) filed the operative first amended complaint (FAC) against defendants Courtney DeSoto, individually and as Conservator of the Estate of Rita Moritz and Trustee of the Rita M. Moritz Trust (DeSoto), Marisa K. Beouy (Beouy), and Cristi Michelon Vasquez (Vasquez) (collectively “defendants”), for professional malpractice.
As alleged in the complaint:
Plaintiffs are the two surviving children of Rita M. Moritz (decedent), who passed away on April 25, 2024, and are the intended beneficiaries of decedent’s trust (the “Trust”). (FAC, ¶ 1.)
DeSoto was a professional fiduciary and was the successor trustee of the Trust and temporary or permanent conservator of the person and estate of decedent. (FAC, ¶ 2.)
Beouy was an attorney who drafted legal documents and was the attorney for decedent, conservatee. (FAC, ¶ 3.)
Vasquez was an attorney who drafted legal documents and was the attorney for DeSoto. (FAC, ¶ 4.)
On November 4, 2019, Blinkman, who was not represented by counsel at the time, and DeSoto, as successor trustee of the Trust and temporary conservator of the person and estate of decedent, engaged in mediation where the parties entered into a stipulation for settlement, which resolved the then pending disputes between them. (FAC, ¶ 7 & Exh. A.)
Following the mediation, decedent expressed to Blinkman that decedent was glad that her wish to have her estate divided equally between her children was part of the stipulation for settlement, because that was what she wanted. (FAC, ¶ 8.)
As part of the stipulation for settlement, Blinkman agreed to transfer a fractional interest in real property and pay cash to DeSoto, as trustee of the Trust, and DeSoto as successor trustee of the Trust and temporary conservator of the person and estate of decedent, committed that decedent would amend the Trust to provide equally for her surviving children, namely plaintiffs, via the application of Probate Code section 2580, which provides that a conservator or other interested party may file a petition for substituted judgment requesting an order of the court authorizing or requiring the conservator to take a proposed action, including amending a conservatee’s trust. (FAC, ¶ 9.) The stipulation for settlement was approved as to form by Beouy, as attorney for decedent, and Vasquez, as attorney DeSoto. (Ibid.)
On November 21, 2019, the Grant Deed, whereby Blinkman transferred her one-half interest in decedent’s residence to DeSoto, pursuant to the stipulation for settlement, was recorded in the Santa Barbara County Recorder’s office. (FAC, ¶ 10.)
By July 12, 2022, well before the death of decedent, Blinkman paid the full amount of monies due pursuant to the stipulation for settlement. (FAC, ¶ 11.)
On December 10, 2019, just over a month after the stipulation for settlement, in the conservatorship matter, Vasquez submitted a status report of conservator summarizing the mediated dispute resolution between Blinkman and DeSoto as successor trustee of the Trust, and temporary conservator of the person and estate of decedent, and attaching the stipulation for settlement. (FAC, ¶ 12.)
On December 24, 2019, DeSoto was appointed as permanent conservator of the person and estate of decedent. (FAC, ¶ 13.)
On January 13, 2020, slightly more than two months after the stipulation for settlement, in the conservatorship matter, Vasquez submitted a status report of conservator to the court. (FAC, ¶ 14.) The status report contained: “3. Matter of Rita M Moritz Trust: There is nothing pending in this matter as it relates to a status hearing. The Petition that was filed on behalf of Rita Moritz when she was acting as Trustee has been resolved by way of Mediation with the Hon. Judge Clen Reiser, Ret. The Trustee will dismiss this Petition when appropriate following the completion of the settlement terms. This is anticipated to be in the next 90-120 days.” (Ibid.)
As attorney for the conservatee, decedent, Beouy had a duty to act as a zealous, independent advocate representing decedent’s wishes and exercising ordinary care and diligence in acting on behalf of the conservatee, including ensuring compliance with the terms of the stipulation for settlement. (FAC, ¶ 15.)
As successor trustee of the Trust, and temporary or permanent conservator of the person and estate of decedent, DeSoto had a duty to petition the court for authorization to take actions, including amending the Trust in accordance with the stipulation for settlement. (FAC, ¶ 16.) As successor trustee of the Trust, and temporary or permanent conservator of the person and estate of decedent, DeSoto must act in good faith, including in the interest of the intended beneficiaries of the Trust, and impartially when there are multiple beneficiaries. (Ibid.)
As attorney for DeSoto, Vasquez owes a duty to the intended beneficiaries of the Trust to ensure that DeSoto fulfils her fiduciary obligations, including implementing any amendments to the Trust that are required under a valid and enforceable settlement agreement, such as the stipulation for settlement. (FAC, ¶ 17.)
Additionally, in the conservatorship matter, Vasquez, through the filing of the status reports of the conservator, on December 10, 2019 and January 13, 2020, represented to the court that the matter of the Trust had been settled, provided the court with a copy of the stipulation for settlement, and indicated that she anticipated the matter would be dismissed by DeSoto in 90 to 120 days from the January 13, 2020 status report. (FAC, ¶ 18.)
Thereafter, for approximately four and a half years, from the date of the stipulation for settlement to the date of decedent’s death, neither DeSoto, Beouy, nor Vasquez took any action in the furtherance of the express commitment in the stipulation for settlement that decedent, who was under conservatorship, would amend the Trust to provide equally for her surviving children, plaintiffs, thereby allowing decedent to pass away before said required amendment to the Trust could be created and executed. (FAC, ¶ 19.)
DeSoto, Beouy, and Vasquez took advantage of the fact that Blinkman was unrepresented by counsel at the time of the mediation and execution of the stipulation for settlement, and Blinkman was not aware until decedent’s passing that DeSoto, Beouy, and Vasquez had not complied with the stipulation for settlement. (FAC, ¶¶ 20, 21.)
Even following decedent’s passing, DeSoto, Beouy, and Vasquez failed to take any action to rectify the problems they caused by failing to comply with the terms of the stipulation for settlement. (FAC, ¶ 22.)
DeSoto now demurs to the FAC on the grounds that: (1) the first and only cause of action fails to state a cause of action; (2) the first and only cause of action is uncertain, meaning ambiguous, or unintelligible; and (3) the first and only cause of action is barred because there is another action pending between the parties based on the same cause of action.
Plaintiffs oppose DeSoto’s demurrer to the FAC.
Beouy now demurs to the FAC on the grounds that: (1) plaintiffs’ first cause of action fails to state facts sufficient to constitute a cause of action against Beouy; and (2) plaintiffs lack standing to sue defendant for professional malpractice because Beouy did not represent the plaintiffs in the Trust action and owed no duty to plaintiffs.
Plaintiffs oppose Beouy’s demurrer to the FAC.
Vasquez now demurs to the FAC on the grounds that plaintiffs’ first cause of action fails to plead that Vasquez owed a duty to plaintiffs and, therefore, fails to state facts sufficient to constitute a cause of action against Vasquez.
Plaintiffs oppose Vasquez’s demurrer to the FAC.
Analysis:
“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:
“(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading.
“(b) The person who filed the pleading does not have the legal capacity to sue.
“(c) There is another action pending between the same parties on the same cause of action.
“(d) There is a defect or misjoinder of parties.
“(e) The pleading does not state facts sufficient to constitute a cause of action.
“(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.
“(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.
“(h) No certificate was filed as required by Section 411.35.” (Code Civ. Proc., § 430.10.)
“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading.” (Code Civ. Proc., § 430.30, subd. (a).)
“[A] court must treat a demurrer as admitting all material facts properly pleaded, it does not, however, assume the truth of contentions, deductions or conclusions of law.” (Travelers Indem. Co. of Connecticut v. Navigators Specialty Ins. Co. (2021) 70 Cal.App.5th 341, 358, citing Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)
“If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer. “ ‘[W]e are not limited to plaintiffs’ theory of recovery in testing the sufficiency of their complaint against a demurrer, but instead must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory. The courts of this state have . . . long since departed from holding a plaintiff strictly to the ‘form of action’ he has pleaded and instead have adopted the more flexible approach of examining the facts alleged to determine if a demurrer should be sustained.’ ” [Citations.]” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38-39.)
“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)
A demurrer searches for defects in the allegations of the pleading. “A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.” (Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879.)
DeSoto Demurrer
Request for Judicial Notice
DeSoto requests that the court take judicial notice of the following documents in Santa Barbara Superior Court Case No. 19PR00264, Matter of Rita M. Moritz Trust, as follows: (1) Petition for Accounting, for Surcharge of Former Trustee, and for Restrictions on Appointment of Trustees, filed by Rita Moritz on June 17, 2019; (2) Order substituting DeSoto for petitioner Rita Moritz after ex parte application, entered on August 28, 2019; (3) Substitution of Attorney, filed on behalf of Angela Moritz on October 17, 2019; (4) Petition for Instructions to Trustee Regarding Estate Plan, filed by DeSoto on June 21, 2024; (5) Motion to Enforce Settlement by Blinkman under Code of Civil Procedure section 664.6, filed on September 13, 2024; (6) Objection to Petition for Instructions to Trustee Regarding Estate Plan; Enforcement of Contract to Amend Trust; Contest of Trust Amendment, and Breach of Contract to Amend Trust, filed on behalf of Blinkman and Thomas Gunter Moritz by their counsel on October 21, 2024; (7) Ex Parte Petition for Order Approving Settlement Agreement, filed by Blinkman and Thomas Gunter Moritz on April 16, 2025; and (8) Order of Court approving settlement, filed May 21, 2025, approving settlement agreement, ratifying execution of settlement agreement by guardians ad litem, and approving modification of Trust.
Additionally, DeSoto requests that the court take judicial notice of an Elder Abuse Restraining Order in Case No. 19CV04403, filed August 21, 2019, and an Application for Temporary Restraining Order by DeSoto seeking protection from Rita Moritz and Angela Moritz.
“When the ground of demurrer is based on a matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, such matter shall be specified in the demurrer, or in the supporting points and authorities for the purpose of invoking such notice, except as the court may otherwise permit.” (Code Civ. Proc., § 430.70.)
Judicial notice may be taken of “Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.” (Evid. Code, § 452, subd. (d).)
“The trial court shall take judicial notice of any matter specified in Section 452 if a party requests it and:
“(a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and
“(b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.” (Evid. Code, § 453.)
“[J]udicial notice of a document does not extend to the truthfulness of its contents or the interpretation of statements contained therein, if those matters are reasonably disputable. [Citations.] Our Supreme Court noted this limitation in StorMedia Inc. v. Superior Court (1999) 20 Cal.4th 449, 84 Cal.Rptr.2d 843, 976 P.2d 214 (StorMedia), explaining: “ ‘In ruling on a demurrer, a court may consider facts of which it has taken judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) This includes the existence of a document. When judicial notice is taken of a document, however, the truthfulness and proper interpretation of the document are disputable. [Citation.] . . ..’ ” [Citation.]” (Apple Inc. v. Superior Court (2017) 18 Cal.App.5th 222, 241.)
“The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114.)
“ ‘Courts can take judicial notice of the existence, content and authenticity of public records and other specified documents, but do not take judicial notice of the truth of the factual matters asserted in those documents.’ ” [Citation.]” (Dominguez v. Bonta (2022) 87 Cal.App.5th 389, 400.)
Here, DeSoto has complied with the Evidence Code and plaintiffs have not objected to the court taking judicial notice. As such, the court will take judicial notice of the court documents.
Res Judicata
DeSoto’s first argument is that the doctrine of res judicata precludes plaintiffs from maintaining this action between the parties on the same cause of action.
“The doctrine of res judicata “ ‘describes the preclusive effect of a final judgment on the merits.’ ” [Citation.] It promotes judicial economy as it “ ‘ “ ‘precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief.’ ” ’ ” [Citation.] The doctrine has two aspects: the first is claim preclusion, otherwise known as res judicata, which “ ‘prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.’ ” [Citations.] The second is issue preclusion, or collateral estoppel, which “ ‘ “precludes relitigation of issues argued and decided in prior proceedings.” ’ ” [Citations.]” (Alpha Mechanical, Heating & Air Conditioning, Inc. v. Travelers Casualty & Surety Co. of America (2005) 133 Cal.App.4th 1319, 1326 (Alpha).)
“To determine whether claim preclusion bars another action or proceeding, courts look to whether the two proceedings involve the same cause of action. In California, the primary right theory determines whether two separate actions concern a single cause of action. [Citation.] Under this theory, “ ‘ “a “ ‘cause of action’ ” is comprised of a “ ‘primary right’ ” of the plaintiff, a corresponding “ ‘primary duty’ ” of the defendant, and a wrongful act by the defendant constituting a breach of that duty. [Citation.] ... [¶] [T]he primary right is simply the plaintiff’s right to be free from the particular injury suffered. [Citation.] It must therefore be distinguished from the legal theory on which liability for that injury is premised: . . . The primary right must also be distinguished from the remedy sought: “ ‘The violation of one primary right constitutes a single cause of action, though it may entitle the injured party to many forms of relief, and the relief is not to be confounded with the cause of action, one not being determinative of the other.’ ” ’ ” [Citation.] “ ‘ “[T]he harm suffered” ’ ” is “ ‘ “the significant factor” ’ ” in defining a primary right. [Citations.]” (Alpha, supra, 133 Cal.App.4th at pp. 1326-1327.)
“In analyzing whether a second action or proceeding is barred by issue preclusion or collateral estoppel, we look to whether “ ‘the decision in the initial proceeding was final and on the merits and the issue sought to be precluded from relitigation is identical to that decided in the first action and was actually and necessarily litigated in that action.’ ” (Alpha, supra, 133 Cal.App.4th at p. 1327.)
“ ‘The doctrine of res judicata, whether applied as a total bar to further litigation or as collateral estoppel, ‘ “rests upon the sound policy of limiting litigation by preventing a party who has had one fair adversary hearing on an issue from again drawing it into controversy and subjecting the other party to further expense in its reexamination.” ’ ” [Citations.]” (Alpha, supra, 133 Cal.App.4th at p. 1327.)
By way of the demurrer, DeSoto argues: “In the Probate matter 19PR00264, plaintiffs Angela Moritz Blinkman and Thomas Gunter Moritz raised the exact same issues the present in this Complaint. . . . Plaintiffs will have by the time of this hearing resolved all related claims, including their standing to receive distributions in accordance with the terms of the Settlement Agreement as reflected in the Fourteenth Amendment to the Trust. . . . This Complaint raises claims that are identical to those litigated in the Trust proceeding, those claims have been resolved, and both plaintiffs as well as DeSoto were parties to the Trust proceeding, 19PR00264.”” (Demurrer, p. 11, ll. 17-18.)
DeSoto’s argument regarding the application of claim preclusion or issue preclusion misses the mark. The probate petitions, and resulting orders, while involving some of the same allegations, are an entirely different type of action involving different causes of action, different legal theories, some different parties, and different damages. The probate action does not seek individual damages from DeSoto based on alleged actions and inactions. As such, DeSoto’s res judicata argument fails.
Abatement of this Action
DeSoto next argues that should the Trust proceeding not be completely resolved, the court should abate the present professional negligence action under either Code of Civil Procedure section 430.10, subdivision (c) or the doctrine of exclusive concurrent jurisdiction.
Code of Civil Procedure section 430.10 provides: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading . . .’ on the grounds that “[t]here is another action pending between the same parties on the same cause of action.”
Here, as explained in rejecting the res judicata argument, there is not another action pending between the same parties on the same cause of action. DeSoto’s argument in this regard fails. Many of DeSoto’s arguments, such as, “plaintiffs seek to enforce the same primary right-the right to obtain proceeds from their late mother’s Trust – in two separate cases,” (demurrer, p. 15, ll. 7-8) are gross mischaracterizations of this matter. This case seeks monetary damages from the defendants for alleged professional negligence. It does not seek proceeds from any Trust.
DeSoto’s argument in support of abatement of this action is without merit and fails.
Lack of Duty
DeSoto next argues that plaintiffs can allege no duty by DeSoto to seek amendment of the Trust during Rita Moritz’s lifetime because the Trust was revocable. The argument is essentially: “Desoto’s duty was not to plaintiffs but to Rita Moritz and the Trust. The Trust was at all times a revocable trust. . . . A revocable trust remains revocable during the lifetime of its settlor and the settlor retains complete discretion to dispense with trust assets or to revoke the trust altogether.” DeSoto argues that any duty she had was owed to decedent. (Demurrer, p. 17, ll. 3-10.)
DeSoto continues: “Accordingly, a trustee cannot be held liable for breach for any act or omission in accord with the settlor’s wishes.” (Demurrer, p. 17, ll. 17-18.)
“The determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, and the policy of preventing future harm.” (Biakanja v. Irving (1958) 49 Cal.2d 647, 650 (Biakanja).) These will be referred to as the “Biakanja factors.”
As noted above, the FAC contains allegations that:
DeSoto was a professional fiduciary and was the successor trustee of the Trust and temporary or permanent conservator of the person and estate of decedent. (FAC, ¶ 2.)
Decedent expressed to Blinkman that decedent was glad that her wish to have her estate divided equally between her children was part of the stipulation for settlement, because that was what she wanted. (FAC, ¶ 8.)
On December 24, 2019, DeSoto was appointed as permanent conservator of the person and estate of decedent. (FAC, ¶ 13.)
As successor trustee of the Trust, and temporary or permanent conservator of the person and estate of decedent, DeSoto had a duty to petition the court for authorization to take actions, including amending the Trust in accordance with the stipulation for settlement. (FAC, ¶ 16.) As successor trustee of the Trust, and temporary or permanent conservator of the person and estate of decedent, DeSoto must act in good faith, including in the interest of the intended beneficiaries of the Trust, and impartially when there are multiple beneficiaries. (Ibid.)
Thereafter, for approximately four and a half years, from the date of the stipulation for settlement to the date of decedent’s death, neither DeSoto, Beouy, nor Vasquez took any action in the furtherance of the express commitment in the stipulation for settlement that decedent, who was under conservatorship, would amend the Trust to provide equally for her surviving children, plaintiffs, thereby allowing decedent to pass away before said required amendment to the Trust could be created and executed. (FAC, ¶ 19.)
In short, the FAC alleges, among other things, that DeSoto was acting against the wishes of decedent.
DeSoto also argues that “[t]o establish the element of a breach of any duty, plaintiff must therefore present evidence of some action or inaction by Courtney DeSoto contrary to the wishes of [decedent].” (Demurrer, p. 17, ll. 25-27.) The argument is incorrect at the pleading stage. Plaintiffs do not need to present any evidence of anything. The important thing, at the pleading stage, is whether the allegations are sufficient. Here, the allegations are sufficient. The remainder of DeSoto’s duty arguments are not directed at the pleadings but, rather, are improper attempts to argue the merits of the action. The arguments fail.
DeSoto’s final two arguments are that: (1) plaintiffs can make no claim for breach of the settlement agreement because the settlement agreement does not specify any deadline or time by which the prospective modification to the Trust were to take place, and (2) that plaintiffs can present no viable claims for damages.
DeSoto’s final two arguments fail because they are not in any way directed at the sufficiency of the FAC. They are factual arguments that are improper on demurrer.
DeSoto’s demurrer to the FAC will be overruled.
Beuoy Demurrer
Requests for Judicial Notice
Beuoy requests that the court take judicial notice of: (1) Order substituting conservator for Rita M. Moritz in Case No. 19PR00264, (2) Plaintiffs’ ex parte application for Order approving settlement agreement filed on April 16, 2025, and (3) Order granting plaintiffs’ ex parte Petition for Order approving settlement agreement filed in Case No. 19PR00264, on May 21, 2025.
For the reasons discussed above as it pertains to the DeSoto demurrer, the court will take judicial notice of the documents.
Legal or Factual Basis of Claim against Beuoy
Beuoy’s first argument is that the professional malpractice claim fails to allege any basis for a legal duty that could be owned by Beuoy to plaintiffs, and that Beuoy, as decedent’s attorney, owed no duty to plaintiffs.
“To state a cause of action for professional negligence, a party must show “ ‘(1) the duty of the professional to use such skill, prudence and diligence as other members of the profession commonly possess and exercise; (2) breach of that duty; (3) a causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional negligence.’ ” [Citation.] “ ‘The threshold element of a cause of action for negligence is the existence of a duty to use due care toward an interest of another that enjoys legal protection against unintentional invasion.’ ” [Citation.] “ ‘Where there is no legal duty, the issue of professional negligence cannot be pled because with the absence of a breach of duty, an essential element of the cause of action for professional negligence is missing.’ ” [Citation.]” (Giacometti v. Aulla, LLC (2010) 187 Cal.App.4th 1133, 1137.)
The general rule is: “ ‘[T]he attorney for the trustee of a trust is not, by virtue of this relationship, also the attorney for the beneficiaries of the trust. The attorney represents only the trustee.’ ” [Citations.]” (Wells Fargo Bank v. Superior Court (2000) 22 Cal.4th 201, 208.)
However, there are exceptions to the general rule. See, for example, the Biakanja factors discussed above.
“In short, the testator’s intent to benefit the plaintiff is a prerequisite to the imposition of a duty on the attorney to the plaintiff. This makes sense, as the rationale for allowing testamentary instrument beneficiaries to recover in the event of a breach by the attorney is that “ ‘the main purpose of the testator in making his agreement with the attorney is to benefit’ ” those beneficiaries “ ‘and this intent can be effectuated . . . only by giving the beneficiaries a right of action.’ ” [Citation.]” (Paul v. Patton (2015) 235 Cal.App.4th 1088, 1098.)
Beuoy’s argument that the Biakanja factors only apply to cases where an executed will is rendered defective by reason of its draftsmanship (demurrer, p. 9, l. 18 - p. 10, l. 21), citing Moore v. Anderson Zeigler Disharron Gallagher & Gray (2003) 109 Cal.App.4th 1287, is an incorrect characterization of that case. While the Moore case did not extend the Biakanja factors to include allegations that an attorney should have recognized a testator did not have testamentary capacity to change estate planning documents, and relied on cases involving the drafting of wills, the Moore case did not limit the Biakanja factors to completely exclude a case where the allegations are that the attorney acted against the will of the trustee.
As discussed herein above, the allegations are that decedent intended to benefit plaintiffs. It is a matter of proof, not suitable for demurrer, whether decedent’s intent to benefit plaintiffs was clear, certain, and undisputed. For pleading purposes, the FAC is sufficient to overcome Beuoy’s demurrer.
Vasquez Demurrer
Vasquez’s sole grounds for demurrer is that she owed no duty to plaintiffs. As noted above, Vasquez was DeSoto’s attorney and plaintiffs allege that Vasquez failed to have the Trust amended in accordance with the settlement agreement. DeSoto, also as noted above, was the successor trustee of the Trust and temporary and permanent conservator of the person and estate of decedent.
Plaintiff alleges:
Vasquez was an attorney who drafted legal documents and was the attorney for DeSoto. (FAC, ¶ 4.)
On December 24, 2019, DeSoto was appointed as permanent conservator of the person and estate of decedent. (FAC, ¶ 13.)
On January 13, 2020, slightly more than two months after the stipulation for settlement, in the conservatorship matter, Vasquez submitted a status report of conservator to the court. (FAC, ¶ 14.) The status report contained: “3. Matter of Rita M Moritz Trust: There is nothing pending in this matter as it relates to a status hearing. The Petition that was filed on behalf of Rita Moritz when she was acting as Trustee has been resolved by way of Mediation with the Hon. Judge Clen Reiser, Ret. The Trustee will dismiss this Petition when appropriate following the completion of the settlement terms. This is anticipated to be in the next 90-120 days.” (Ibid.)
As attorney for DeSoto, Vasquez owes a duty to the intended beneficiaries of the Trust to ensure that DeSoto fulfils her fiduciary obligations, including implementing any amendments to the Trust that are required under a valid and enforceable settlement agreement, such as the stipulation for settlement. (FAC, ¶ 17.)
Additionally, in the conservatorship matter, Vasquez, through the filing of the status reports of the conservator, on December 10, 2019 and January 13, 2020, represented to the court that the matter of the Trust had been settled, provided the court with a copy of the stipulation for settlement, and indicated that she anticipated the matter would be dismissed by DeSoto in 90 to 120 days from the January 13, 2020 status report. (FAC, ¶ 18.)
Thereafter, for approximately four and a half years, from the date of the stipulation for settlement to the date of decedent’s death, neither DeSoto, Beouy, nor Vasquez took any action in the furtherance of the express commitment in the stipulation for settlement that decedent, who was under conservatorship, would amend the Trust to provide equally for her surviving children, plaintiffs, thereby allowing decedent to pass away before said required amendment to the Trust could be created and executed. (FAC, ¶ 19.)
Applying the Biakanja factors, and other relevant case law discussed herein, the allegations of the FAC are sufficient to overcome demurrer for the same reasons that Beuoy’s demurrer will be overruled.