Henry v. Aleksic CA4/2

Opinion

Filed 9/18/25 Henry v. Aleksic CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

KIMBERLY HENRY,

Plaintiff and Appellant, E084646

v. (Super.Ct.No. CVRI2302746)

SAM SINISA ALEKSIC, OPINION

Defendant and Respondent.

APPEAL from the Superior Court of Riverside County. Christoper B. Harmon,

Judge. Affirmed.

Johnson & Shinton and Thomas E. Shinton for Plaintiff and Appellant.

Stream Kim Hicks Wrage & Alfaro, Eugene Kim, and Elizabeth V. Duran, for

1 Kimberly Henry brought this lawsuit against the drafter of her father’s trust

amendment, Sam Sinisa Aleksic. The trust amendment disinherited Kimberly and made

her son the sole beneficiary of her father’s estate.1 Kimberly’s operative first amended

complaint (FAC) alleges causes of action against Aleksic for negligence, intentional

infliction of emotional distress, and intentional interference with expected inheritance.

The trial court sustained Aleksic’s demurrer without leave to amend and entered

judgment in his favor. We affirm.

BACKGROUND

I. Allegations of the FAC2

Jerry and Denise Henry were Kimberly’s parents. Denise died in April 2019, and

Jerry died in May 2020. Both of them created revocable living trusts in 1999 and

amended their trusts several times. In 2010, Denise was diagnosed with cancer, and

Kimberly became her caregiver. Jerry and Denise amended their trusts in 2010 to make

Kimberly the sole beneficiary of the trusts and their successor trustee.

1 Because Kimberly and her parents have the same last name, we refer to them by their first names to avoid confusion. No disrespect is intended. 2 Kimberly’s FAC includes a number of exhibits and incorporates them by reference. At the demurrer stage, we assume the truth of the FAC’s allegations and the facts reflected in the exhibits to the FAC. (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 209 (Brown); Brakke v. Economic Concepts, Inc. (2013) 213 Cal.App.4th 761, 767 (Brakke).) One of the exhibits is the reporter’s transcript of Aleksic’s testimony in a related case. In that case, Kimberly asserted a claim for promissory estoppel, alleging that her father breached an oral promise to leave his entire estate to her. We recently affirmed the judgment for the defendants in that case. (Henry v. Aleksic (Apr. 2, 2025, E081697) [nonpub. opn.].)

2 Aleksic is not an attorney, but he was Jerry’s tax preparer and began doing Jerry’s

taxes in 2010. Aleksic’s business cards and website advertise his ability to prepare living

trusts. Around November 2017, Jerry or Denise scheduled an appointment with Aleksic,

and Aleksic met them at their home. They told Aleksic that they wanted to remove

Kimberly as the beneficiary of Jerry’s trust and designate Aleksic as the successor

trustee. (Jerry and Denise were co-trustees of the trust.) They also said that they wanted

Dylan Heredia-Tamayo (their grandson and Kimberly’s son) to be the sole beneficiary of

the trust. Jerry and Denise told Aleksic that they were unhappy with Kimberly and that

there was “a lot of tension” in their shared home. Aleksic suggested that they specifically

disinherit Kimberly by name.

Aleksic prepared the trust amendment disinheriting Kimberly, naming Heredia-

Tamayo as the sole beneficiary, and designating Aleksic as successor trustee. Jerry and

Denise signed the amendment in February 2018 at a skilled nursing facility, where they

were patients. Aleksic was “not trained to look for issues like capacity,” and he allegedly

exerted undue influence over Jerry and Denise. There is ongoing probate court litigation

to determine the validity of the trust amendments; Kimberly contends that the 2010

amendment is controlling, but Aleksic contends that the 2018 amendment is valid and

controlling. Because of Aleksic’s actions, Kimberly is engaged in multistate litigation

and has suffered emotional breakdowns and panic and anxiety attacks.

3 On the basis of the foregoing allegations, the FAC alleges causes of action against

Aleksic for negligence, intentional infliction of emotional distress, and intentional

interference with expected inheritance.

II. Aleksic’s demurrer

Aleksic demurred to the FAC and filed a request for judicial notice. He asked the

court to take judicial notice of certain filings in related cases, including Kimberly’s

probate petition to determine the validity of the 2018 trust amendment. In her petition,

Kimberly asked the probate court to declare the 2018 amendment invalid because of lack

of capacity and undue influence by Aleksic.

The trial court issued a tentative ruling sustaining Aleksic’s demurrer without

leave to amend. The tentative ruling also granted the request for judicial notice. With

respect to the negligence cause of action, Kimberly relied on Biakanja v. Irving (1958) 49

Cal.2d 647 (Biakanja) to argue that Aleksic owed her a duty to (1) not advertise that he

was able to practice law and (2) not draft trust documents. The court concluded that

Biakanja was distinguishable and did not give rise to a legal duty in this case. Moreover,

the FAC did not sufficiently allege other essential elements of the cause of action,

namely, breach of duty and causation. The court further concluded that the cause of

action for intentional infliction of emotional distress failed because Kimberly did not

allege extreme or outrageous conduct. In addition, Aleksic’s alleged conduct was not

directed at her and did not occur in her presence. As to the cause of action for intentional

interference with expected inheritance, the court concluded that it failed because

4 Kimberly had an adequate remedy in probate. The FAC alleges that there is ongoing

probate litigation to determine the validity of the 2018 trust amendment, and the exhibits

to the request for judicial notice showed that Kimberly had filed pleadings in the probate

actions contesting the validity of the amendment.

In August 2024, the court adopted its tentative ruling, sustained the demurrer

without leave to amend, and entered judgment for Aleksic.

STANDARD OF REVIEW

“In reviewing an order sustaining a demurrer, we examine the operative complaint

de novo to determine whether it alleges facts sufficient to state a cause of action under

any legal theory.” (T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162.)

“[W]e accept the truth of material facts properly pleaded, but not contentions, deductions,

or conclusions of fact or law.” (State Dept. of State Hospitals v. Superior Court (2015)

61 Cal.4th 339, 346.) We also accept as true facts reflected in exhibits attached to the

complaint (Brakke, supra, 213 Cal.App.4th at p. 767), and we “‘consider matters which

may be judicially noticed’” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318).

DISCUSSION

Kimberly argues that the trial court erred by sustaining the demurrer to all three

causes of action. The arguments lack merit.

I. Negligence

“Recovery for negligence depends as a threshold matter on the existence of a legal

duty of care.” (Brown, supra, 11 Cal.5th at p. 213.) “Whether a duty exists is a question

5 of law to be resolved by the court.” (Ibid.) Subdivision (a) of Civil Code section 1714

“‘establishes the general duty of each person to exercise, in his or her activities,

reasonable care for the safety of others.’” (Kesner v. Superior Court (2016) 1 Cal.5th

1132, 1142.) “[I]n cases involving traditionally compensable forms of injury—like

physical harm to person or property—we presume the defendant owed the plaintiff a duty

of care and then ask whether the circumstances ‘justify a departure’ from that usual

presumption.” (Southern California Gas Leak Cases (2019) 7 Cal.5th 391, 398.)

But in cases involving purely economic harm, there generally is no liability in

negligence. (Southern California Gas Leak Cases, supra, 7 Cal.5th at p. 400.) There is

an exception to the “general rule of no recovery for negligently inflicted purely economic

losses” if “the plaintiff and the defendant have a ‘special relationship’” that gives rise to a

duty of care. (Ibid.) The special relationship arises if “the plaintiff [is] an intended

beneficiary of a particular transaction but was harmed by the defendant’s negligence in

carrying it out.” (Ibid.)

Biakanja is an economic loss case in which our Supreme Court recognized a

special relationship giving rise to a duty of care. (Southern California Gas Leak Cases,

supra, 7 Cal.5th at p. 400.) A notary public prepared the decedent’s will but failed to

have the will properly attested, so the intended beneficiary received only one-eighth of

the estate by intestate succession. (Biakanja, supra, 49 Cal.2d at p. 648.) She would

have received the entire estate under the terms of the will. (Ibid.) The Biakanja court

“held that the intended beneficiary of [the] will could recover for assets she would have

6 received if the notary had not been negligent in preparing the document. [Citation.] A

special relationship existed between the intended beneficiary and the notary . . . because

‘the “end and aim” of the transaction’ between the nonparty decedent and the notary was

to ensure that the decedent’s estate passed to the intended beneficiary.” (Southern

California Gas Leak Cases, at p. 400.)

In addition to “the extent to which the transaction was intended to affect the

plaintiff,” Biakanja’s duty analysis considered five other factors: (1) “the foreseeability

of harm to” the plaintiff, (2) “the degree of certainty that the plaintiff suffered injury,”

(3) “the closeness of the connection between the defendant’s conduct and the injury

suffered,” (4) “the moral blame attached to the defendant’s conduct,” and (5) “the policy

of preventing future harm.” (Biakanja, supra, 49 Cal.2d at p. 650.) The first three of

those factors also weighed in favor of imposing a duty of care. The harm to the intended

beneficiary was foreseeable and certain, because the notary “must have been aware from

the terms of the will itself that, if faulty solemnization caused the will to be invalid,

plaintiff would suffer the very loss which occurred.” (Ibid.) Moreover, there was a close

connection between the notary’s conduct and the injury to the intended beneficiary. The

intended beneficiary would have received all of the decedent’s estate but for the notary’s

alleged negligence. (Id. at pp. 650-651.)

Kimberly argues that the court “applied Biakanja too narrowly,” but the court

correctly concluded that Aleksic owed her no duty of care. (Capitalization and boldface

omitted.) Kimberly was not the intended beneficiary of the transaction that Aleksic was

7 tasked with carrying out. Heredia-Tamayo was the intended beneficiary of the

transaction, and Jerry and Denise intended to disinherit Kimberly. That particular

factor—that the plaintiff was the intended beneficiary of the defendant’s conduct—was

central to Biakanja’s recognition of a special relationship giving rise to a duty of care.

(Southern California Gas Leak Cases, supra, 7 Cal.5th at p. 400; Biakanja, supra, 49

Cal.2d at p. 650.) Biakanja’s analysis of the remaining factors rested on the plaintiff’s

status as the intended beneficiary and the fact that she did not inherit as intended. This

case is not analogous. If Aleksic did faulty work and rendered the 2018 trust amendment

invalid, then there would be no harm to Kimberly. On the contrary, Kimberly would

benefit. Her parents’ attempt to disinherit her and name Aleksic successor trustee would

be ineffective, which is the same relief she is seeking in the probate court.

Moreover, the court correctly determined that the FAC does not sufficiently allege

causation. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477 [negligence plaintiff

must show that the defendant’s acts were a legal cause of the plaintiff’s injuries].) To

show actual or legal causation, the defendant’s conduct must be a substantial factor in

causing the plaintiff’s injury. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763,

778.) “[C]onduct is not a substantial factor in causing harm if the same harm would have

occurred without that conduct.” (Yanez v. Plummer (2013) 221 Cal.App.4th 180, 187.)

Kimberly’s claimed injury is that her parents removed her as successor trustee and

disinherited her. Aleksic’s drafting of the trust amendment was not the legal cause of that

injury. Aleksic was merely following the instructions of Kimberly’s parents, who wished

8 to make those changes to Jerry’s trust. If Aleksic had not prepared the 2018 trust

amendment, then Jerry and Denise would have found someone else to prepare it.

Kimberly’s claimed injury would have occurred even without Aleksic’s conduct.

For all of these reasons, the court did not err by sustaining the demurrer to the

negligence cause of action.

II. Intentional infliction of emotional distress

To prevail on a cause of action for intentional infliction of emotional distress, the

plaintiff must show “‘extreme and outrageous conduct by the defendant with the intent to

cause, or reckless disregard for the probability of causing, emotional distress.’” (Chang

v. Lederman (2009) 172 Cal.App.4th 67, 86.) Conduct is extreme and outrageous if it

“‘exceed[s] all bounds of that usually tolerated in a civilized community.’” (Christensen

v. Superior Court (1991) 54 Cal.3d 868, 903; accord, Cochran v. Cochran (1998) 65

Cal.App.4th 488, 496 [“‘Liability has been found only where the conduct has been so

outrageous in character, and so extreme in degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious, and utterly intolerable in a civilized

community’”].) “Whether a defendant’s conduct can reasonably be found to be

outrageous is a question of law that must initially be determined by the court; if

reasonable persons may differ, it is for the jury to determine whether the conduct was, in

fact, outrageous.” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534.)

9 The court did not err by concluding that the FAC fails to allege extreme and

outrageous conduct. Kimberly argues that Aleksic acted outrageously by practicing law,

suggesting that Jerry and Denise specifically disinherit Kimberly, drafting documents that

named himself as successor trustee, and having Jerry and Denise execute the documents

in a skilled nursing facility. None of that conduct could reasonably be found to be so

extreme and outrageous that it exceeds all possible bounds of decency in a civilized

society. Again, Aleksic acted pursuant to the instructions of Jerry and Denise. There was

nothing inherently unlawful about their desire to disinherit Kimberly and name Aleksic

successor trustee. They contacted Aleksic to make changes to the trust, met with him at

their home, and told him what they wanted. He suggested that they disinherit Kimberly

by name as a way of implementing their desired changes. And even assuming that

Aleksic’s actions constituted the unlicensed practice of law, that is not the sort of

atrocious and indecent conduct necessary to support the cause of action. (See Ross v.

Creel Printing & Publishing Co. (2002) 100 Cal.App.4th 736, 746 [attorneys’ alleged

violation of the Rules of Professional Conduct was not outrageous conduct for purposes

of intentional infliction of emotional distress].)

Because the FAC does not allege outrageous and extreme conduct, the court

properly sustained the demurrer to the cause of action for intentional infliction of

emotional distress.

10 III. Intentional interference with expected inheritance

“The tort of intentional interference with expected inheritance was first recognized

in California in 2012.” (Gomez v. Smith (2020) 54 Cal.App.5th 1016, 1025.) But the

cause of action is available only if the plaintiff has no adequate remedy in probate.

(Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1056, 1058.) “‘“[D]ual litigation tracks

for disgruntled heirs . . . would risk destabilizing the law of probate and creating

uncertainty and inconsistency in its place.”’” (Id. at p. 1052.)

An individual who alleges an interest in a trust “because the amendments

purporting to disinherit them are invalid” has standing to petition the probate court.

(Barefoot v. Jennings (2020) 8 Cal.5th 822, 828.) In addition, the “claims that trust

provisions or amendments are the product of incompetence, undue influence, or fraud . . .

should be decided by the probate court, if the invalidity of those provisions or

amendments would render the challenger a beneficiary of the trust.” (Ibid.)

The court correctly determined that Kimberly has no cause of action for

intentional interference with expected inheritance. She has an adequate remedy for her

allegedly improper disinheritance in probate court. Indeed, the FAC alleges that there is

ongoing probate court litigation to determine the validity of the 2018 trust amendment,

and the court in this case took judicial notice of pleadings in the probate court that

confirm Kimberly is pursuing that remedy. (See Bistawros v. Greenberg (1987) 189

Cal.App.3d 189, 192 [court properly took judicial notice of other actions filed by the

11 plaintiff in ruling on a demurrer].) The court therefore did not err by sustaining the

demurrer to this cause of action.

DISPOSITION

The judgment is affirmed. Aleksic shall recover his costs of appeal. (Cal. Rules

of Court, rule 8.278(a)(1).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MENETREZ J.

We concur:

MILLER Acting P. J.

FIELDS J.