Ensuring Another Bite at the Apple

This post is NOT about Steve Jobs.

Instead, it is about the court's propensity to allow parties to fix problems with their pleadings, rather than using their powers to dismiss an action for good.

Frank Dito was 94 when he married 28-year-old Elenice, who was from Brazil.  Elenice worked as a housekeeper for Frank and his then wife Roseana.  Frank and Elenice married two years after Roseana died.  The two signed a prenuptial agreement.  Frank and his former wife Roseana had an estate plan that Frank never updated after Roseana died.  When Frank died in 2007 (when he was over 100 years old), Frank and Roseana's daughter filed a petition for probate of Frank's pourover will, which identified Roseana as his wife.  Elenice filed petitions to set aside the prenuptial agreement as unenforceable, and to take a share of her husband Frank's estate as an omitted spouse.  The court ruled that Elenice was the surviving spouse of Frank, that she was entitled to a share of his estate as an omitted spouse, and that the prenuptial agreement was unenforceable.

After the court's ruling, Frank's daughter filed a petition alleging that Elenice committed financial elder abuse against Frank, and that under the Probate Code, she should be deemed to have predeceased Frank, taking nothing under his estate.  Elenice demurred on the grounds that Frank's daughter's petition was barred by the doctrine of Res Judicata because the court had already concluded that Elenice was an omitted spouse and was entitled to a share of Frank's estate.  The trial court agreed, and sustained the demurrer without leave to amend.  Frank's daughter appealed.

The appellate court reversed the lower court's ruling.  Res Judicata only works where the same "primary right" is at stake.  Here, the appellate court found that the primary right in the first action was whether Elenice was entitled to a share of her husband Frank's estate as an omitted spouse.  The primary right in the second petition was that of Frank not to be abused or defrauded.  Since the two actions arose from different primary rights, the doctrine of Res Judicata did not apply.

The appellate court did find other reasons for the trial court to sustain Elenice's demurrer, but those reasons could be cured by amendment to the petition, and so the appellate court held that the demurrer should be sustained with leave to amend.

In my 10-plus years as a litigator, I cannot remember a single instance of a court sustaining a demurrer without leave to amend. Not that it hasn't happened to me.  I just can't think of any right now, which suggests to me how rare it is.  Courts are very averse to taking away someone's day in court, and will usually only throw something out entirely in extreme situations, such as where a statute of limitations has expired.  Courts are much more willing to pull the trigger once a case has been argued on its merits.

Estate of Dito, 2011 Cal.App. LEXIS 1104.