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Tentative Ruling
Judge Colleen Sterne
Department 5 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107


Andre Neumann v. Gisela H. Neumann, et al.

Case No: 19C V05640
Hearing Date: Mon Feb 24, 2020 9:30

Nature of Proceedings: Demurrer to Cross-Complaint



CASE:   Andre Neumann v. Gisela Neumann, et al., Case No. 19CV05640 (Judge Sterne)


HEARING DATE:                February 24, 2020


MATTER:                              Demurrer to Cross-Complaint



John J. Thyne III for Plaintiff Andre Neumann

Miles T. Goldrick for Defendant Gisela Neumann

Sam I. Khil for Defendant Bayview Loan Servicing, LLC


TENTATIVE RULING:        The demurrer to the cross-complaint for breach of contract and elder abuse is sustained with leave to amend. Cross-complainant shall have to and including March 4, 2020 to file an amended pleading.






Plaintiff Andre Neumann (“Andre”) is the son of defendant Gisela Neumann (“Gisela”) and together they are co-owners of a single family residence located at 6175 Manzanillo Drive, Goleta, California 93117 (the “Property”). The Property is encumbered by a Deed of Trust securing a loan with a current outstanding balance of approximately $500,000. Defendant Bayview Loan Servicing, LLC (“Bayview Loan”) is the servicer of the loan. Andre no longer wishes to be a co-owner and on October 22, 2019, he filed this action to partition the Property pursuant to Code of Civil Procedure Section 872.820, subdivision (b). Andre contends that partition by sale would be more equitable than partition in kind because the Property consists of a fee simple estate with joint tenants, each of whom owns an undivided one-half interest in the Property, making physical division of the Property impossible.


Gisela and Bayview Loan have both answered the complaint. In addition, Gisela has cross-complained against Andre for breach of contract and elder abuse. Gisela alleges that in 2008 she placed Andre on title to the Property (which Gisela has owned since the 1970’s) as part of her estate plan and that Andre paid no consideration in exchange for having been placed on title. Gisela alleges that she never contemplated that Andre would instigate legal action to remove her from her home and if the Property is sold Andre would be unjustly enriched.


Andre now demurs to the cross-complaint on the grounds that the claims for breach of contract and elder abuse do not state facts sufficient to constitute a cause of action and/or are uncertain, ambiguous, and unintelligible.




The legal authority for a demurrer is found in Code of Civil Procedure Section 430.10, which provides, in relevant part:


“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 of the following grounds:


“(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.”


The function of a demurrer is to test the legal sufficiency of the pleading by raising questions of law, not fact. Buford v. State of California (1980) 104 Cal.App.3d 811, 827. In ruling on a demurrer, the court assumes the truth of all allegations in the complaint that have been properly pleaded, but not contentions, deductions, or conclusions of fact or law. Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 827. The court also assumes the truth of all reasonable inferences that may be drawn from the properly pleaded facts in the complaint. Reynolds v. Bement (2005) 36 Cal.4th 1075, 1083.


On December 10, 2019, Gisela filed her cross-complaint using Judicial Council Form PLD-PI-002 (Cross-Complaint – Personal Injury, Property Damage, Wrongful Death) and checked “Other,” stating that it was a cross-complaint for breach of contract and elder abuse. On page 3 of the Judicial Council Form, Gisela checked paragraph 10 to indicate that her first cause of action was for breach of contract and paragraph 11.f. to indicate that she was also asserting a cause of action for elder abuse. In asserting both causes of action, however, Gisela filed just a single attachment entitled “Attachment to Cross-Complaint” instead of separate attachments for each cause of action. The attachment alleges:


● From 1998 through 2008, Andre and his family lived rent-free in a condominium that Gisela owned at 43 North San Marcos Road in Santa Barbara, after initially promising to pay rent.


● In 2008, Andre and his family moved into the subject Property at 6175 Manzanillo Drive in Goleta after talking Gisela into adding him on title to the Property. Andre also convinced Gisela to take out a loan for $150,000 (secured by the Property) to remodel the residence. After Andre moved in, Gisela moved into the condominium on North San Marcos Road.


● In 2009, Gisela paid off Andre’s credit card debt in the amount of $50,000.


● In 2011, Andre took over Gisela’s Italian restaurant and pizza business, but Gisela was never paid any of the profits from the business. When Andre sold the business a year and a half later, he kept all of the sale proceeds for himself.


● In 2015, Gisela moved back into the Property. The portion of the residence where Gisela lived was separate from the area where Andre and his family resided. Because Andre complained that money was tight, Gisela agreed to pay $800 per month in rent.


● After Gisela moved back into the Property, Andre received an inheritance from his father and promised to repay the $50,000 that Gisela had paid in 2009 to pay off his credit card debt. Andre later gave Gisela a cashier’s check for $10,000, but no other monies have been paid. Since then, Gisela has been deducting her monthly rent of $800 from the remaining $40,000 that Andre owed her and she calculates that Andre currently owes her $26,048.


● In September 2019, Andre and his family went to Hawaii for two weeks. Before leaving for Hawaii, Andre locked all of the doors to his portion of the Property and placed locks on the gates to both side yards. He also installed cameras inside and outside the house.


● While Gisela was on vacation in October 2019, Andre contacted her renters in the North San Marcos Road condominium and told them that Gisela would be selling the unit at the end of the year. That was not true.


● In November 2019, Andre and his family moved out of the Property.


To state a cause of action for breach of contract, the plaintiff must allege (1) the existence of a contract, (2) the plaintiff’s performance or excuse for non-performance, (3) the defendant’s breach, and (4) resulting damages to the plaintiff. Acoustics, Inc. v. Trepte Construction Company (1971) 14 Cal.App.3d 887, 913. In general, a contract must be pled either verbatim or according to its legal effect. Twaite v. Allstate Insurance Company (1989) 216 Cal.App.3d 239, 252. In order to plead a contract by its legal effect, a plaintiff must allege the substance of its relevant terms. McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489. To withstand a demurrer, the pleading must also allege whether the contract was written, oral, or implied by conduct. Code Civ. Proc. §430.10, subd. (g).


Here, Gisela has listed a number of alleged promises in her cross-complaint, but has failed to allege whether any of the contracts were written, oral, or implied by conduct. The cross-complaint does not attach a copy of any written contract, nor does it set out verbatim the terms of any contract. Gisela has also failed to provide the specific terms or details of the alleged contracts that Andre is alleged to have breached. Because of these omissions, Andre’s demurrer to the breach of contract claim will be sustained for failure to state a cause of action and uncertainty.


Gisela’s cross-complaint also references a claim for elder abuse. The Elder Abuse and Dependent Adult Civil Protection Act is found at Welfare & Institutions Code Section 15600 et seq. and includes a myriad of potential civil actions that can be filed by allegedly abused elders. For example, Welfare and Institutions Code Section 15610.30 provides:


“(a) ‘Financial abuse’ of an elder . . . occurs when a person or entity . . . (1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder . . . for a wrongful use or with intent to defraud, or both.”


Section 15610.30 further provides:


“(c) For purposes of this section, a person or entity takes, secretes, appropriates, obtains, or retains real or personal property when an elder . . . is deprived of any property right, including by means of an agreement, donative transfer, or testamentary bequest . . . .”


In the present case, the cross-complaint recites a number of alleged wrongdoings by Andre without any reference to specific sections of the Elder Abuse and Dependent Adult Civil Protection Act. Andre cannot be expected to guess as to what conduct on his part constituted elder abuse and his demurrer to the elder abuse claim will be sustained for uncertainty and failure to state a cause of action.


Andre’s demurrer to the cross-complaint is sustained with leave to amend. Gisela shall have to and including March 4, 2020, to file an amended pleading.



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