Hasbun v. O'Connor
| Decision Date | 16 March 2021 |
| Docket Number | B299648 |
| Court | California Court of Appeals Court of Appeals |
| Parties | SALEH HASBUN, Plaintiff and Appellant, v. GARY O'CONNOR, individually and as Trustee, etc., Defendants and Respondents. |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. PC058689)
APPEAL from judgment of the Superior Court of Los Angeles County, Melvin Sandvig, Judge. Affirmed.
Law Offices of John S. Nagle, John Nagle and Robert A. Brown for Plaintiff and Appellant.
Law Offices of Michael Welch and Michael Welch for Defendants and Respondents.
____________________ Saleh Hasbun sued Gary O'Connor individually and as trustee of the Money Market Retirement Trust Dated 1-94 (collectively "O'Connor") alleging financial abuse, physical abuse and intentional infliction of emotional distress in violation of the Elder Abuse and Dependent Adult Civil Protection Act (Elder Abuse Act or Act) (Welf. & Inst. Code, § 15600 et seq.) and breach of fiduciary duty. The trial court sustained O'Connor's demurrer to the complaint, ruling Hasbun lacked standing to sue for financial elder abuse, his causes of action for physical and emotional distress elder abuse were untimely and he failed to allege a factual basis for finding a fiduciary relationship existed with O'Connor.
Hasbun argues on appeal from the judgment of dismissal that the Elder Abuse Act applies to the taking of property indirectly owned by an elder; a three-year, not two-year, statute of limitations applies to physical and emotional distress elder abuse claims; and the complaint alleges facts sufficient to establish that O'Connor owed Hasbun a fiduciary duty. Hasbun also requests leave to amend his causes of action for physical and emotional distress elder abuse if we conclude, as did the trial court, a two-year statute of limitations applies to those claims. We affirm.
In a complaint filed August 1, 2018, Hasbun alleged he was over the age of 65 and had suffered several strokes that affected his mental abilities and general health. O'Connor was a "sophisticated real estate licensed broker and or agent and an investor for over twenty years in real estate in SouthernCalifornia" and the trustee of the Money Market Retirement Trust dated 1-94.
Hasbun through Boostz, Inc., a California-based subchapter S corporation he owns, and O'Connor invested money as lenders and held secured interests in two real properties in Los Angeles. Other unnamed investors also held secured interests in the properties. In 2011 the investors foreclosed on unpaid notes and acquired the properties. Hasbun alleged O'Connor had collected more than $100,000 in rental income from the properties over a period beginning sometime prior to 2011 and had refused to pay Boostz its share of rental income or to provide an accounting for the rents he had collected.
According to Hasbun's complaint, in 2014 and 2015 O'Connor found parties interested in buying the properties for a sum in excess of $1 million. By this time O'Connor had bought out most of the other investors and owned more than 90 percent of the properties; Boostz owned a 4.2 percent interest. O'Connor began negotiations to acquire the interests of the other investors; those efforts were ultimately unsuccessful. "Enraged" when he was unable to purchase the interests of the other investors, in October or November 2015 O'Connor began stalking and harassing Hasbun. "[A]fter weeks of stalking" O'Connor assaulted Hasbun at his office and "screamed" at Hasbun for 30 minutes while "towering over him and threatening to have him beat up."
Based on these allegations Hasbun asserted claims against O'Connor for violations of the Elder Abuse Act and breach of fiduciary duty.
O'Connor demurred to the complaint. O'Connor argued, because a cause of action for financial elder abuse requires the "real or personal property of an elder" be wrongfully taken or retained (see Welf. & Inst. Code, § 15610.30, subd. (a)(1)) and the complaint alleged Boostz, not Hasbun, owned the interest in the properties, Hasbun's claim for financial elder abuse failed as a matter of law. Hasbun had not, and could not, allege any property belonging to him had been wrongfully taken by O'Connor. As to Hasbun's physical and emotional distress elder abuse claims, O'Connor argued the two-year statute of limitations for personal injuries in Code of Civil Procedure section 335.11 applied and barred the claims. Lastly, O'Connor asserted Hasbun's cause of action for breach of fiduciary duty failed because the complaint alleged insufficient facts to support the existence of a fiduciary relationship between the two men.
In his opposition papers Hasbun contended the Elder Abuse Act applied to deprivations of property held indirectly, as well as directly, by an individual 65 years or older. He also argued the three-year limitations period in section 338, subdivision (a), for liabilities created by statute applied to his claims for physical abuse and intentional infliction of emotional distress under the Elder Abuse Act. Finally, Hasbun claimed O'Connor owed him fiduciary duties because they were co-owners and joint investors in real property. Hasbun requested leave to amend his complaint to address any deficiencies that might be found by the court.
The trial court sustained O'Connor's demurrer following a hearing on May 31, 2019. The court agreed with O'Connor that, because Hasbun had alleged a corporation owned the interests in the properties, Hasbun could not state facts sufficient to constitute a cause of action for financial elder abuse. Similarly, Hasbun's cause of action for breach of fiduciary duty failed because the corporation owned the property interests and there was no co-ownership or joint investor relationship between Hasbun and O'Connor. The demurrer to these claims was sustained without leave to amend. The court also held section 335.1's two-year limitations period barred Hasbun's physical and emotional distress elder abuse claims. The minute order from the May 31, 2019 hearing notes Hasbun requested leave to amend to allege conduct by O'Connor that occurred through August 2016 and plainly indicated, but did not expressly state, that leave to amend had been granted.2
The court entered a judgment of dismissal on June 28, 2019 having sustained the demurrer and "plaintiff electing not to amend" his claims for physical and emotional distress elder abuse. Hasbun timely appealed.
A demurrer tests the legal sufficiency of the factual allegations in a complaint. We independently review the trial court's ruling on a demurrer and determine de novo whether the pleading alleges facts sufficient to state a cause of action or discloses a complete defense. (Mathews v. Becerra (2019) 8 Cal.5th 756, 768; T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162.) We assume the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 20; Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) However, we are not required to accept the truth of the legal conclusions pleaded in the complaint. (Mathews, at p. 768; Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) We liberally construe the pleading with a view to substantial justice between the parties. (§ 452; Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 726; see Schifando, at p. 1081 [].)
"'Where the complaint is defective, "[i]n the furtherance of justice great liberality should be exercised in permitting a plaintiff to amend his [or her] complaint."'" (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 970-971.) We determine whether the plaintiff has shown "in what manner he [or she] can amend [the] complaint and how that amendment will change the legal effect of [the] pleading." (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) "[L]eave to amend should not be granted where . . . amendment would be futile." (Vaillette v. Fireman'sFund Ins. Co. (1993) 18 Cal.App.4th 680, 685; see generally Ivanoff v. Bank of America, N.A., supra, 9 Cal.App.5th at p. 726; Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 618 [].)
The Elder Abuse Act was enacted to protect elders—defined as "any person residing within this state, 65 years of age or older" (Welf. & Inst. Code, § 15610.27)—and dependent adults "by providing heightened remedies that encourage private enforcement of laws against abuse and neglect." (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 858 (Mahan); accord, Strawn v. Morris, Polich & Purdy, LLP (2019) 30 Cal.App.5th 1087, 1103; see Tepper v. Wilkins (2017) 10 Cal.App.5th 1198, 1204 [].) The Act protects against "[a]buse of an elder" including "[p]hysical abuse . . . or other treatment with resulting physical harm or pain and mental suffering" and "[f]inancial abuse." (Welf. & Inst. Code, § 15610.07, subd. (a)(1) & (3).)
"Physical abuse" includes...
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