Appeal from a judgment of the Superior Court of Orange County, Luis A. Rodriguez, Judge. Reversed and remanded. (Super. Ct. No. 30-2010-00394872)
The opinion of the court was delivered by: O'leary, P. J.
CERTIFIED FOR PUBLICATION
Brent Beckwith appeals from a judgment of dismissal entered after the trial court sustained without leave to amend Susan Dahl's demurrer to his complaint alleging intentional interference with an expected inheritance (IIEI) and deceit by false promise. Beckwith argues we should join the majority of other states in recognizing the tort of IIEI as a valid cause of action.*fn1 We agree it is time to officially recognize this tort claim. In addition, in this opinion we have clarified why IIEI and the cause of action, deceit by false promise, address different wrongs. We conclude Beckwith's complaint alleged sufficient facts to support a claim for deceit, but there are currently insufficient facts stated to allege IIEI. Given the unique circumstances of this case, Beckwith must be afforded an opportunity to amend the complaint if he believes he can allege the facts necessary to support an IIEI claim as delineated in this opinion. We reverse the judgment of dismissal and the order sustaining the demurrer. The matter is remanded for further proceedings.
1. Marc Christian MacGinnis
Beckwith and his partner, Marc Christian MacGinnis (MacGinnis), were in a long-term, committed relationship for almost 10 years. They leased an apartment together and were occasional business partners. MacGinnis had no children and his parents were deceased. His sister, Susan Dahl, with whom he had an estranged relationship, was his only other living family. At some point during their relationship, MacGinnis showed Beckwith a will he had saved on his computer. The will stated that upon MacGinnis's death, his estate was to be divided equally between Beckwith and Dahl. MacGinnis never printed or signed the will.
In May 2009, MacGinnis's health began to decline. On May 25, 2009, MacGinnis was in the hospital awaiting surgery to repair holes in his lungs. He asked Beckwith to locate and print the will so he could sign it. Beckwith went to their home and looked for the will, but he could not find it. When Beckwith told MacGinnis that he could not locate the will, MacGinnis asked Beckwith to create a new will so he could sign it the next day. That night, Beckwith created a new will for MacGinnis using forms downloaded from the Internet. The will stated: "'I [MacGinnis] give all the rest, residue and remainder of my property and estate, both real and personal, of whatever kind and wherever located, that I own or to which I shall be in any manner entitled at the time of my death (collectively referred to as my "residuary estate"), as follows: (a) If Brent Beckwith and Susan Dahl survive me, to those named in clause (a) who survive me in equal shares.'"
Before Beckwith presented the will to MacGinnis, he called Dahl to tell her about the will and e-mailed her a copy. Later that night, Dahl responded to Beckwith's e-mail stating: '"I really think we should look into a Trust for [MacGinnis ]. There are far less regulations and it does not go through probate. The house and all property would be in our names and if something should happen to [MacGinnis] we could make decisions without it going to probate and the taxes are less on a trust rather than the normal inheritance tax. I have [two] very good friends [who] are attorneys and I will call them tonight.' [Emphasis added.]" After receiving the e-mail, Beckwith called Dahl to discuss the details of the living trust. Dahl told Beckwith not to present the will to MacGinnis for signature because one of her friends would prepare the trust documents for MacGinnis to sign "in the next couple [of] days." Beckwith did not present the will to MacGinnis.
Two days later, on May 27, MacGinnis had surgery on his lungs. Although the doctors informed Dahl there was a chance MacGinnis would not survive the surgery, the doctors could not discuss the matter with Beckwith since he was not a family member under the law. Nor did Dahl tell Beckwith about the risks associated with the surgery. Dahl never gave MacGinnis any trust documents to sign. After the surgery, MacGinnis was placed on a ventilator and his prognosis worsened. Six days later, Dahl, following the doctors' recommendations, removed MacGinnis from the ventilator. On June 2, 2009, MacGinnis died intestate. He left an estate worth over $1 million.
2. The Probate Proceedings
Following MacGinnis's death, Beckwith and Dahl met to discuss the disposition of MacGinnis's personal property. After Beckwith suggested they find the will that MacGinnis prepared, Dahl told Beckwith "we don't need a will." Two weeks after MacGinnis' death, on June 17, 2009, Dahl opened probate in Los Angeles Superior Court. Dahl verbally informed Beckwith that she had opened probate, but she did not send him any copies of the probate filings. In the filing, she did not identify Beckwith as an interested party. Dahl also applied to become the administrator of the estate.
In September 2009, Beckwith began to ask Dahl for details of the probate case. Dahl informed Beckwith that she had not had any contact with the probate attorney so she did not know anything. On October 2, 2009, Beckwith looked up the probate case online. He then sent Dahl an e-mail stating: '"In case you hadn't had a chance to talk to speak [sic] with the probate attorney, I looked up [MacGinnis's] probate case on-line http://www.lasuperiorcourt.org/Probate/ and the next hearing date is not until 8/27/10, so unfortunately as expected it is going to take over a year from [MacGinnis's] passing until we get our proceeds from the estate.' [Emphasis added.]" When Dahl did not respond, Beckwith sent her another e-mail on December 2, 2009, asking if she needed any information from him regarding the distribution of MacGinnis's assets. Again, Dahl did not respond. Beckwith e-mailed Dahl again on December 18, 2009, asking about the probate proceedings. This time Dahl responded by e-mail, stating: "'Because [MacGinnis] died without a will, and the estate went into probate, I was made executor of his estate. The court then declared that his assets would go to his only surviving family member which is me.'" A few weeks later, in January 2010, Dahl filed a petition with the probate court for final distribution of the estate. Beckwith filed an opposition to Dahl's petition in March 2010. After a hearing, at which Beckwith was present in pro se, the probate judge found that Beckwith had no standing because he was "not a creditor of the estate" and he had "no intestate rights" with regard to MacGinnis's estate.
3. The Civil Action and Demurrer
On July 30, 2010, while the probate case was still pending, Beckwith filed the instant civil action against Dahl alleging IIEI, deceit by false promise, and negligence. In the complaint, Beckwith asserted Dahl interfered with his expected inheritance of one half of MacGinnis's estate by lying to him about her intention to prepare a living trust for MacGinnis to sign. Beckwith further alleged Dahl made these false promises in order to "caus[e] a sufficient delay to prevent [MacGinnis] from signing his will before his surgery" because she knew that if MacGinnis died without a will, she would inherit the entire estate. Finally, Beckwith claimed that as a result of his reliance on Dahl's promises, "he was deprived of his . . . share of [MacGinnis's] estate," and because he had no standing in probate court, a civil action against Dahl was his only remedy.
Dahl demurred to all three causes of action. As to the IIEI cause of action, she argued the "claim fails on its face" because "California does not recognize a cause of action for 'interference with inheritance.'" Further, Dahl argued California should not recognize such a cause of action because doing so would "be inconsistent with already established legal principals embodied in the probate arena and other areas of the law." Dahl demurred to the fraud cause of action alleging her statements regarding the preparation of trust documents were too vague to constitute actionable fraud, Beckwith's damages were not caused by her statements, and Beckwith did not have a vested interest in MacGinnis's estate. Finally, Dahl's demurrer to the negligence claim alleged Beckwith had not pled the requisite duty or causation to state a claim.
At the hearing on the demurrer, the trial court stated, it was not "in a position to recognize" a new tort for IIEI because "that really is an appellate decision." Further, the court indicated it had concerns as to whether Beckwith had adequately pled the fraud cause of action, and thus, even if California did recognize the IIEI tort, Beckwith had not sufficiently alleged independently tortious conduct as required by other jurisdictions that do recognize the tort. The trial court sustained the demurrer without leave to amend as to all three causes of action and dismissed the complaint. Beckwith timely appealed the order sustaining the demurrer as to the first and second causes of action.
"A demurrer tests the legal sufficiency of the complaint, and the granting of leave to amend involves the trial court's discretion. Therefore, an appellate court employs two separate standards of review on appeal. [Citations.] First, the complaint is reviewed de novo to determine whether it contains sufficient facts to state a cause of action. [Citation.] In doing so, we accept as true the properly pleaded material factual allegations of the complaint, together with facts that may be properly judicially noticed. Reversible error exists only if facts were alleged showing entitlement to relief under any possible legal theory. [Citations.] [¶] Second, where the demurrer is sustained without leave to amend, reviewing courts determine whether the trial court abused its discretion in doing so. [Citations.] On review of the trial court's refusal to grant leave to amend, we will only reverse for abuse of discretion if we determine there is a reasonable possibility the pleading can be cured by amendment. Otherwise, the trial court's decision will be affirmed for lack of abuse. [Citations.]" (Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497-1498.)
2. Intentional Interference with Expectation of Inheritance
The trial court sustained without leave to amend Dahl's demurrer to Beckwith's first cause of action, IIEI, because the tort had not been officially recognized as valid in California. However, "[t]he law of torts is anything but static, and the limits of its development are never set. When it becomes clear that the plaintiff's interests are entitled to legal protection against the conduct of the defendant, the mere fact that the claim is novel will not of itself operate as a bar to a remedy." (Prosser & Keeton, Torts (5th ed. 1984) § 1, p. 4, fn. omitted.) Therefore, the threshold question before this court is whether California should recognize a tort remedy for IIEI.
a. Background of the Tort
The parties are in agreement that California has not yet recognized the tort of IIEI. However, "Twenty-five of the forty-two states that have considered it have validated it." (Klein, "Go West, Disappointed Heir": Tortious Interference with Expectations of Inheritance -- A Survey with Analysis of State Approaches, in the Pacific States (2009) 13 Lewis & Clark L. Rev. 209, 226 (hereafter Go West).) The United States Supreme Court called the tort "widely recognized." (Marshall v. Marshall (2006) 547 U.S. 293, 312.) In addition, IIEI is outlined in section 774B of the Restatement Second of Torts. (Rest.2d Torts, § 774B ["One who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift"].)
In general, most states recognizing the tort adopt it with the following elements: (1) an expectation of receiving an inheritance; (2) intentional interference with that expectancy by a third party; (3) the interference was independently wrongful or tortious; (4) there was a reasonable certainty that, but for the interference, the plaintiff would have received the inheritance; and (5) damages. (See, e.g., Fell v. Rambo (Tenn.Ct.App. 2000) 36 S.W.3d 837, 849.) Most states prohibit an interference action when the plaintiff already has an adequate probate remedy. (See, e.g., Minton v. Sackett (Ind.Ct.App. 1996) 671 N.E.2d 160, 162-163 (Minton).)
The question of whether or not California recognizes a cause of action for IIEI has been discussed in prior cases, but no court has explicitly decided whether California should recognize the tort. Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, was the first published opinion that discussed the tort, but the court only briefly mentioned the interference cause of action to say it is "recognized in several states but not previously validated in California." (Id. at p. 173) The court reversed defendant's summary judgment award because defendant failed to meet her statutory burden of showing plaintiff could not establish his cause of action for, inter alia, intentional interference with an expected inheritance. However, the court refused to explicitly address whether the interference tort claim was a valid one, explaining its holding did not mean plaintiff's IIEI case was "necessarily meritorious." (Id. at p. 188.) This has led some commentators to suggest the court left open the possibility of a recovery based on this cause of action. (See Go West, supra, 13 Lewis & Clark L. Rev. at p. 226.)
Fifteen years later, in Munn v. Briggs (2010) 185 Cal.App.4th 578 (Munn), a different division of this district took up the issue of whether California should recognize the tort. The court extensively discussed the history and development of the tort in other states and acknowledged California had not yet adopted the tort. (Id. at pp. 585-587.) Ultimately, however, the court "decline[d] under the present circumstances to adopt the tort of interference with an expected inheritance" because plaintiff "had an adequate ...