Filed 10/30/26 Fox v. Fox CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

JANICE FOX, B343401

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 21STCV18183)

THEODORE FOX et al.,

Defendants and Respondents.

APPEAL from a judgment and an order of the Superior
Court of Los Angeles County, Ruben Garcia, Judge. Reversed
with directions.
Strecker Law Offices and Marc S. Strecker; Law Offices of
Philip Kaufler and Philip Kaufler for Plaintiff and Appellant.
Wolf, Rifkin, Shapiro, Schulman & Rabkin and Johnny
White for Defendants and Respondents.
________________________
 Janice Fox appeals from a judgment following an order
sustaining a demurrer in favor of respondents Theodore Fox
(Ted), Ultimate Action, LLC (UA), Supreme Studios, LLC
(Supreme Studios), TF Properties #2, LLC (TF #2), and TF
Properties #3, LLC (TF #3), in a financial elder abuse action
under the Elder Abuse and Dependent Adult Civil Protection Act
(the Elder Abuse Act; Welf. & Inst. Code, § 15600, et seq.) on
behalf of her deceased mother Gertrude Fox.1 In a consolidated
matter, Janice appeals from an order denying a trust petition to
invalidate revocation of the Gerson and Gertrude Fox Family
Trust (the Family Trust) and alleging financial elder abuse.
On appeal, Janice contends the financial elder abuse claims
alleged in her pleadings are not precluded by the prior litigation
in her father’s bankruptcy proceeding because: (1) the claims are
not the same, (2) the bankruptcy trustee did not have standing to
assert an elder abuse claim, (3) neither Gertrude, nor Janice, is
in privity with the bankruptcy trustee, and (4) Gertrude’s claims
were expressly excluded from the release in the settlement
agreement entered in the bankruptcy proceeding.
We conclude financial elder abuse claims based on acts
prior to the bankruptcy filing were part of the bankruptcy estate,
could have been asserted in the bankruptcy litigation, and were
released by the bankruptcy trustee in the settlement agreement.
With respect to these claims, Gertrude and Janice are in privity
with the bankruptcy trustee because Janice and the bankruptcy

1 Because more than one party shares the last name Fox,
they will be referred to individually by their first names for ease
of reference. All undesignated statutory references are to the
Welfare & Institutions Code.

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trustee are both asserting Gertrude’s claims and have the same
strong interest to recover the property.
We reach a different conclusion as to Janice’s cause of
action for financial elder abuse claim alleging respondents took
Gertrude’s funds from an attorney client trust account after the
bankruptcy litigation settled. Respondents contend the funds
were taken when they placed liens on certain property in 2013,
prior to the bankruptcy filing. But the allegations of the
complaint and the facts subject to judicial notice do not establish
the source of the funds in the client account such that the pleaded
claim is precluded by the bankruptcy litigation. The demurrer
must be overruled as to this claim.
In addition, the causes of action in the trust petition
seeking to invalidate revocation of the Family Trust are not
precluded by the bankruptcy litigation. Janice brought these
causes of action on her own behalf as a contingent beneficiary of
the Family Trust. She is not in privity with the bankruptcy
trustee with respect to these claims, because the bankruptcy
trustee did not share her interest in ensuring Gertrude’s
testamentary intent. The demurrer must be overruled as to
these causes of action as well. Based on these conclusions, the
judgment in the civil action and the order in the trust matter are
reversed with directions.

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 FACTUAL AND PROCEDURAL BACKGROUND2

A. Family History and Estate Plan

Gertrude was born on October 20, 1928. She married
Gerson Fox, and they have three surviving adult children:
Janice, Ted, and Barry Fox.
In 2006, Gerson and Gertrude established the Family
Trust. Upon the death of the first spouse, the Family Trust was
to be divided into two trusts: a survivor’s trust and a decedent’s
trust. The decedent’s trust would receive certain assets,
including the decedent’s separate property, if any, and one-half of
the interest in the community property at the date of death. In
addition, if Gertrude was the first spouse to die, the trustee was
to set aside $100,000 for each living grandchild in separate
trusts.
During the surviving spouse’s lifetime, the trustee would
pay certain income of the decedent’s trust to the surviving
spouse, and the trustee could use as much of the principal of the
decedent’s trust as necessary for the surviving spouse’s care.
Upon the death of the surviving spouse, the remainder of the
assets in the decedent’s trust would be divided and administered

2 The factual background is taken from the properly
pleaded material allegations of the complaint and the trust
petition, but for clarity and efficiency, as necessary, we include
allegations from the prior litigation in the bankruptcy proceeding
that is asserted to be preclusive. (Estate of Dito (2011) 198
Cal.App.4th 791, 795.)

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in equal shares for Gerson and Gertrude’s surviving adult
children, including a share for any child who died leaving issue.

B. Financial Adversity Leading to Special Trustee
Agreement

After Gerson’s retirement, he began investing in real estate
with Michael Kamen through single purpose entities. In 2010,
Gerson began to suspect Kamen and other business partners of
fraud. Several of the single purpose entities were in default on
mortgage loans, property taxes, insurance, and other obligations,
many of which Gerson had personally guaranteed.
On March 25, 2011, in an action brought by First California
Bank, judgment was entered in the amount of $2,036,196,
against Kamen, Gerson, individually and as trustee of the Family
Trust, and Gertrude, as trustee of the Family Trust (the FCB
judgment).
On March 30, 2011, JRSL FAM 1, LLC (JRSL) filed an
action against several entities, including Kamen and Gerson.
On March 30, 2011, Gerson and Gertrude executed an
amendment to the Family Trust appointing Ted as a “special
trustee.” At the time, the Family Trust held interests in 40
separate limited liability companies or limited partnerships.
Gerson and Gertrude also established the Bearbiz
Irrevocable Trust (the Bearbiz Trust). They appointed Ted as the
trustee of the Bearbiz Trust. The beneficiaries are Ted and
Barry. Janice is expressly and intentionally omitted as a
beneficiary of the Bearbiz Trust.
Gerson, individually and as trustee of the Family Trust,
assigned several membership interests to the Bearbiz Trust,

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including Star News Building, LP (Star News). At the end of
April 2011, Star News filed for bankruptcy.
On August 1, 2011, while Gerson and Gertrude were in
their 80s, suffering from physical and mental ailments, and
under extreme financial distress, they executed a “special
trustee” agreement setting forth the terms of Ted’s appointment
as special trustee of the Family Trust (the special trustee
agreement). The agreement stated that Gerson and Gertrude
were no longer able to adequately address the problems eroding
the trust assets and required full-time, daily management
assistance to preserve and operate the trust’s real properties and
investments. Ted had begun assisting with the trust assets in
August 2009, but now they were asking Ted to work full time on
their business to preserve their estate for all of their children,
including Ted.
The agreement explained that under the last amendment
to the Family Trust, Gerson and Gertrude were designated to act
as the original co-trustees of the Family Trust. If either was
unable or unwilling to continue to act as trustee, the survivor
would act as co-trustee with the special trustee. If both Gerson
and Gertrude were unable or unwilling to continue acting as
trustee, Ted would act as the sole successor trustee. If Gerson,
Gertrude, and Ted were all unable or unwilling to act as trustee,
then Barry and Janice would act as successor co-trustees.
Under the special trustee agreement, Ted was to be paid
$75,000 per month. Every other year, his compensation would
increase $10,000 per month. In the event there was insufficient
cash available from the operation of the properties to pay Ted’s
salary, the unpaid salary would accrue until such time as the
trust could make the payments. Any accrued compensation was

6
to be paid before distributions to heirs. In addition, Ted was to
receive $500,000 as compensation for services rendered over the
previous two years.
On August 28, 2011, Gerson and Gertrude granted a power
of attorney to Ted. In November 2011, they executed an eighth
amendment to the Family Trust giving Ted the power to
withdraw or borrow money from the Family Trust for any trust
purpose.

C. Ted’s Entities Purchase Judgments Against Gerson

Ted’s business entities include UA, Supreme Studios, TF
#2, and TF #3. In June 2012, UA began acquiring judgments
against Gerson from Gerson’s creditors. First California Bank
assigned the FCB judgment to UA. In the JRSL action, UA
purchased the prospective judgment against Gerson from JRSL.
Beginning in October 2012, Ted began to isolate Gerson
and Gertrude from Janice and her family members, with Barry’s
assistance. Gerson had been repeatedly hospitalized and in
rehabilitation nursing facilities from transient ischemic attacks.
In March 2013, in the JRSL action, judgment was entered
in favor of UA, as the assignee of JRSL, and against Gerson, in
the amount of $18,498,071 (the JRSL judgment).
In June 2013, UA filed lien notices on bankruptcy
distributions owed to Gerson in the bankruptcy proceedings for
Kamen’s business.
In July 2013, at a foreclosure sale in the Star News
bankruptcy, UA bid $2.5 million to purchase Gerson’s interest in
numerous single purpose entities.

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 In October 2014, a settlement agreement between the Star
News bankruptcy trustee and several creditors, including UA,
provided for a distribution of $375,000, representing 75 percent of
the allowed claim of the Family Trust, to be held by UA’s counsel
Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP (Wolf Rifkin) in
an attorney client trust account until resolution of a
disagreement between UA and the law firm Buchalter Nemer
over the proper distribution of the funds.
Buchalter filed an action against UA to determine the
respective rights in various property interests, including property
interests held by Gertrude individually and as trustee of the
Family Trust. Neither Gerson, nor Gertrude, were named as
defendants.
In July 2015, a distribution in another bankruptcy matter
was paid into the Wolf Rifkin client account pending resolution of
the Buchalter action.

D. Revocation of the Family Trust and Gerson’s
Bankruptcy Filing

On September 16, 2015, the trial court in an entirely
different case issued a tentative ruling to appoint a receiver over
Gerson. That day, Gerson and Gertrude executed a document
revoking the Family Trust. Any assets remaining in the Family
Trust, or which were intended to be transferred to the Family
Trust, were instead transferred to Gerson and Gertrude,
individually or jointly.
The following day, on September 17, 2015, Gerson filed for
bankruptcy protection under Chapter 7 of the Bankruptcy Code.
Elissa Miller was appointed as the bankruptcy trustee for

8
Gerson’s estate. Janice did not know about the bankruptcy filing
and was not served with any of the related documents.
Gerson’s bankruptcy schedules filed on October 1, 2015,
showed all of the scheduled real property and the majority of
Gerson’s non-exempt personal property were encumbered by liens
held by UA. Gerson’s Schedule D listed ten separate creditor
claims held by UA against Gerson, for an aggregate scheduled
secured claim of $17,473,000. UA and TF #2 had acquired
Gerson’s interest in no less than 22 single purpose entities
itemized on an asset list attached to the special trustee
agreement.
In January 2016, UA sought relief from the automatic stay
in Gerson’s bankruptcy proceeding to pursue enforcement of
judgments against Gerson. One parcel at issue was 9570 and
9584 Wilshire Boulevard in Beverly Hills, which was the former
site of a Barney’s department store (the Barney’s property). The
bankruptcy trustee opposed relief from the stay on several
grounds, alleging that UA had used funds of the bankruptcy
estate to purchase assets, but the bankruptcy court granted relief
from the automatic stay.
During this time, due to Gerson’s heart issues, along with
diabetes and other illnesses, he became bedridden.
In July 2016, the bankruptcy trustee expressly abandoned
the bankruptcy estate’s claims in various pending litigation
proceedings. The bankruptcy trustee’s notice of intent to
abandon the litigation assets stated that the assets were a
burden to the estate because of the cost of liquidating the assets,
as well as the uncertain benefit to the bankruptcy estate given
that UA’s liens fully encumbered the assets. Although the
trustee had standing to prosecute litigation on behalf of the

9
estate, there were insufficient assets in the estate to engage in
extensive litigation, and certain litigation assets were at risk of
wasting if not expeditiously prosecuted.
The bankruptcy trustee entered into a stipulation with UA
under which the bankruptcy trustee abandoned the litigation
assets, their proceeds, and the bankruptcy trustee’s right to
prosecute and liquidate the litigation assets. Gerson and/or UA
could prosecute and liquidate the litigation assets, and UA
agreed to apply any proceeds from the litigation assets toward
satisfaction of the UA judgments and corresponding claims
against the bankruptcy estate. To the extent that the litigation
assets generated proceeds in excess of the amount required to
fully satisfy the UA judgments, UA agreed to remit the excess
proceeds to the bankruptcy trustee for administration in the
bankruptcy proceeding.

E. Allegations of Bankruptcy Trustee’s Avoidance
Action

On July 26, 2017, the bankruptcy trustee filed an action
against Ted, individually and as trustee of the trusts, Supreme
Studios, and Gertrude, which is asserted to preclude Janice’s
claims in the instant proceedings. The bankruptcy trustee
alleged claims for declaratory relief, breach of fiduciary duty,
breach of contract, and avoidance of fraudulent transfers to
Gertrude, Supreme Studios, and the Bearbiz Trust (the
avoidance action). The avoidance action contained the following
additional relevant allegations.
In June 2012, UA began acquiring judgments against
Gerson, despite Ted’s fiduciary duties to Gerson through the

10
special trustee agreement and the power of attorney. As an
example, UA paid $200,000 to JRSL for the prospective judgment
against Gerson. UA and Gerson then entered into a stipulated
judgment in the JRSL action for $18.5 million, which was $7
million more than the prospective judgment in that action.
The Bearbiz Trust was created for an improper purpose,
namely, to defraud Gerson’s creditors. Gerson retained
possession and/or control over the assets transferred to the
Bearbiz Trust. Based on these allegations, the bankruptcy
trustee sought a declaration that the Bearbiz Trust was an
invalid irrevocable trust. In addition, Gerson transferred
membership interests to the Bearbiz Trust to defraud creditors,
including the creditors who were seeking to enforce his personal
guarantees, so the trustee sought to avoid the transfers and
recover the interests.
In December 2010, Star News executed a promissory note
for $1,000,000 and provided a security interest in certain real
property to Gertrude. Gertrude received $1,000,000 from the
settlement of the Star News bankruptcy case, but the amount
loaned to Star News in December 2010 was made from
community property funds, not from Gertrude’s separate
property. The money paid to Gertrude from Star News
bankruptcy estate was a repayment of community funds, which
could be avoided and recovered by the trustee as a constructively
fraudulent transfer.
In addition, Ted’s acquisition of judgments against Gerson,
assertion of liens against Gerson, and acquisition of property once
held in the Family Trust or by Gerson, was a violation of Ted’s
fiduciary duties owed to Gerson, giving rise to damages for
breach of fiduciary duty in an amount to be determined at trial.

11
 The Trustee sought: (1) declaratory relief finding the
Bearbiz Trust invalid; (2) avoidance and recovery of the interests
transferred to the Bearbiz Trust; (3) avoidance and recovery of
property acquired by Supreme Studios; (4) damages for Ted’s
breach of fiduciary duty; (5) damages for Ted’s breach of a service
of process agreement with the bankruptcy trustee; (6) avoidance
and recovery of $1,000,000 transferred to Gertrude from the Star
News bankruptcy proceeding as a constructively fraudulent
transfer; and (7) other relief as the court deemed proper under
the circumstances.
Ted filed a counterclaim for compensation under the special
trustee agreement.

F. Settlement of Avoidance Action

In 2018, the bankruptcy trustee entered into a settlement
agreement with Gertrude, the Bearbiz Trust, and Ted
(individually, as former special trustee of the Family Trust, and
as trustee and beneficiary of the Bearbiz Trust). Gertrude, Ted,
and the Bearbiz Trust were collectively referred to in the
agreement as the “Fox Signatories.” The entities affiliated with
the Fox Signatories were listed as: the Gertrude Fox Separate
Property Trust; UA; Ted Fox Entertainment, LLC; Supreme
Studios; TF #2, formerly known as RCB Equities #12, LLC; Fed
Fox Productions, Inc.; and Shops at Shenandoah Shopping
Center, LLC. These affiliated entities, together with the Fox
Signatories, were collectively referred to in the agreement as the
“Fox Parties.”
The recitals stated the debtor filed a Chapter 7 bankruptcy
proceeding, the bankruptcy trustee filed the avoidance action,

12
and Ted filed a counterclaim. The purpose of the agreement was
to settle completely “any and all of those claims and potential
claims, known and unknown, between the Trustee, on the one
hand, and the Fox Signatories, on the other hand, with regard to
the Avoidance Action, the [bankruptcy estate] and any matters
related thereto, as well as the above Recitals, each of which is an
integral part of this Agreement and incorporated herein by
reference.”
The agreement expressly stated: “The purpose of the
Agreement is to settle any and all claims of any nature that are,
were, or could have been asserted by the Trustee or the
[bankruptcy estate] against any of the Fox Signatories and any
[of] their respective agents, representatives, affiliated companies,
corporations, partnerships or trusts.”
The bankruptcy trustee agreed to file a stipulation
dismissing the avoidance action, including the counterclaim, with
prejudice. Gertrude agreed to pay $380,000 to the bankruptcy
trustee. The bankruptcy trustee would provide a document
transferring all residual property of the bankruptcy estate to the
“Designee” of the Fox Parties, including any residual interests in
Gerson’s real or personal property, together with any and all
causes of action belonging to the estate, now known or
hereinafter discovered. The Fox Parties agreed to dismiss
appeals in three claims that had been filed against the
bankruptcy estate by UA, Fox, and the Bearbiz Trust.
The agreement contained a mutual release of claims as
follows: “Each of the parties, on their own behalf and on the
behalf of each of the agents, . . . hereby release each of the other
parties . . . from any and all actual or potential claims,
obligations, debts and causes of action of any kind . . . direct or

13
indirect, whether known or unknown . . . .” However, “Nothing
contained herein should be construed as a release of any claims
against the [bankruptcy estate] or against any third persons or
entities unrelated to the Fox Parties. In addition, nothing
contained in this Agreement should be construed as a release or
waiver in any respect by any of the Fox Parties or their privies of
any claims, liens, judgments, . . ., causes of action, or other rights
against any of the other Fox Parties or their privies (including,
without limitation, any claims of UA against [Gerson], Gertrude,
or the Gertrude Trust).”
Each party executed the agreement. Gertrude was
represented by the law firm Dempsey Law P.C., while Ted and
the Bearbiz Trust were represented by Wolf Rifkin.
Attached to the stipulated settlement provided to the
bankruptcy court for approval was an assignment of residual
estate assets. The assignment stated that the bankruptcy
trustee, in exchange for receipt of valuable consideration,
assigned, transferred, and conveyed all of the bankruptcy estate’s
right, title, and interest in and to any and all property of the
estate of any kind or nature whatsoever that had not already
been abandoned, disposed of, or otherwise administered in
Gerson’s bankruptcy case to “Assignee.” The space for the
assignee’s name was left blank and the assignee’s address was
listed to be care of Wolf Rifkin.
The bankruptcy trustee filed a motion for an order
approving the settlement. The bankruptcy trustee noted that
litigating the avoidance action would be exceedingly expensive
and likely exceed any prospective judgment that could be
obtained. The bankruptcy court approved the settlement on
June 1, 2018.

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G. Post-Settlement Events

In September 2019, the bankruptcy court ordered all money
held in the Wolf Rifkin attorney client trust account as a result of
prior court orders released to UA. The bankruptcy trustee’s final
account and distribution report certification was entered in May
2020.
In the latter half of 2020, Janice made several telephone
calls to her parents and visited their home of 50 years in Beverly
Hills but was unable to reach them. She asked local police to
check on her parents, and the police determined that the house
was vacant. Other family members did not know where her
parents were. On December 24, 2020, Ted called Janice’s adult
daughter and said her grandparents were at the Beverly Hills
Rehabilitation Center. The granddaughter called the center and
learned Gertrude had been taken to the hospital with respiratory
issues.
Gertrude died on December 25, 2020, at age 92. She had
been in poor physical and mental health, suffering from early
stage dementia in the years before her death. Ted did not inform
Janice or her family of Gertrude’s death or the funeral
arrangements, and he instructed the cemetery not to divulge any
funeral arrangements to Janice and her family members. At the
time of her death, Gertrude owned the home on Roxbury Drive in
Beverly Hills, and an interest in a limited liability company that
owned real estate in Aurora, Colorado.
Gerson resides in a nursing home. In January 2021, Janice
became aware for the first time of the asset transfers to Ted

15
through his limited liability companies. At some point in 2021,
Ted took Gertrude’s house in Beverly Hills and sold it.

H. Janice’s Elder Abuse Action

On May 14, 2021, Janice filed the instant elder abuse
action. On July 14, 2023, she filed the operative fourth amended
complaint against Ted, individually and as trustee of the Family
Trust and as trustee of the Bearbiz Trust, UA, Supreme Studios,
TF #2, TF #3, and Barry. The complaint alleged five separate
elder abuse claims on behalf of Gertrude with respect to: (1) the
special trustee agreement, (2) Gertrude’s interest in the Barney’s
property, (3) other assets, (4) funds taken from the Wolf Rifkin
client trust account in 2019, and (5) a October 21, 2020 writ of
execution. In addition, Janice sought a declaration that the
special trustee agreement was invalid and unenforceable because
it was the product of undue influence, slander, breach of fiduciary
duties, and coercion.
The first cause of action for elder abuse alleged the special
trustee agreement was obtained through undue influence and
coercion. Ted had an intermediary purchase creditor claims
against Gerson and Gertrude totaling more than $20 million,
then Ted purchased the claims from the intermediary for a
fraction of their face value. Through UA, Ted asserted the claims
against his parents for their full value. Ted obtained writs of
execution, orders for the appearance of judgment debtors, and an
application for sale of dwelling against Gertrude and/or her trust.
Ted took title through other entities to conceal the transactions
from the beneficiaries of the Family Trust. Ted’s purchase,
through UA, of creditor judgments and liens against his parents

16
was a breach of his fiduciary duties to the Family Trust, the
Bearbiz Trust, and the beneficiaries of both trusts.
Through undue influence, coercion, isolation, financial
abuse and breach of fiduciary duty, Ted took virtually all of his
parents’ estate, leaving them dependent on him for financial
support. Barry worked with Ted to commit acts of elder abuse
through isolation and financial abuse, and assisted Ted in
intentionally interfering with Janice’s inheritance rights.
Janice’s requests to see her parents’ estate plan have been
denied. At one point, Gertrude’s testamentary documents
bequeathed one-third of her estate to Janice. The estate plan was
subsequently revised to remove the bequest to Janice, but Janice
does not know when or if she was removed completely as an heir
to the estate or as a beneficiary of the various trusts. Prior to
filing the elder abuse lawsuit, Janice was unaware of her parents’
finances, their estate plan, Ted’s appointment as special trustee,
or that Ted was using his position to secrete assets from his
parents and their trusts for himself.
Ted deliberately isolated his parents from Janice, their
grandchildren, Gertrude’s brother, and family friends. Janice did
not discover Ted’s financial abuse and the complex scheme until
after Gertrude’s death. Janice sought damages and a finding
that Ted and Barry were deemed to have predeceased Gertrude
and Gerson by operation of law, unable to receive any
distribution from Gertrude’s estate or to serve as a fiduciary if
the instrument appointing them was executed during the period
when Gertrude was unable to manage her financial resources to
resist fraud or undue influence. In addition, she sought a
declaration that the special trustee agreement was invalid and
unenforceable.

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 The second cause of action for elder abuse was based on
Gertrude’s ownership interest in the Barney’s property. Acting
through one of his entities, Ted acquired Gertrude’s interest in
the Barney’s property without paying fair value.
In the third cause of action for elder abuse as to other
assets, Janice alleged Ted, through his entities, misappropriated
Gertrude’s interest in at least 22 entities and properties itemized
on the asset list attached to the special trustee agreement. She is
unaware of the total amount of money and properties obtained by
Ted through the enforcement and collections actions of entities
that he controls.
In the fourth cause of action for elder abuse, Janice alleged
$566,866.37 belonging to Gertrude was received by Wolf Rifkin
after July 22, 2019, and held in an attorney client trust account.
UA filed an order for a release of the funds to UA.
In the fifth cause of action for elder abuse, Janice alleged
that on October 21, 2020, Ted, individually and through his
entities, with Barry’s participation, filed a writ of execution
against Gerson for a total amount due of $12,027,751.95. The
defendants acted in concert to take the money from Gertrude as
an act of financial elder abuse.
Janice sought general damages, double damages under
Probate Code section 859, attorney fees, and punitive damages.
She also sought a declaration that the special trustee agreement
was invalid and unenforceable.

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I. Janice’s Trust Petition to Determine Validity of
Revocation

On March 25, 2022, Janice filed a petition in probate court
seeking a determination that the revocation of the Family Trust
on September 16, 2015, was invalid due to undue influence,
duress, and/or mistake of fact, and requesting damages and other
relief for financial elder abuse. She filed an amended petition on
July 14, 2023. The petition alleged Ted procured the special
trustee agreement through undue influence, then used it to
transfer assets of the Family Trust to entities controlled by Ted
and/or Barry. Due to Gertrude’s physical and mental illness and
deterioration, and the extreme stress from the legal claims
brought against Gerson and Gertrude, Gertrude was unable to
resist the undue influence by Ted, Barry, and UA. The
revocation was not the product of free will, but duress and undue
influence, and should be set aside.
In addition, Gertrude did not know or appreciate Ted,
Barry, and UA’s transactions to siphon assets from the family
estate and exclude Janice from any inheritance. If Gertrude had
known the facts, namely, that most or all of her assets had been
placed in entities under Ted and Barry’s control to the exclusion
of any inheritance by Janice, Gertrude would never have
executed the revocation document.
The cause of action for financial elder abuse in the trust
petition alleged Ted, Barry, and UA took real and personal
property of the settlors of the Family Trust through undue
influence, duress, and fraudulent means using the Bearbiz Trust,

19
the special trustee agreement, the eighth amendment to the
Family Trust, and UA’s foreclosure on assets.
Specifically, the petition sought to have the revocation of
the Family Trust deemed invalid and rescinded, and all assets
that had been contributed by Gertrude and Gerson to the Family
Trust, whether community or separate, restored as if the
revocation was never executed. In addition, the petition sought
an accounting for the Family Trust from January 2009 to the
present, as well as for the Bearbiz Trust, for UA, and by each
respondent for assets of Gertrude, Gerson, and the Family Trust.
The petition sought compensatory damages of $100,000,000, an
order treating respondents as if they predeceased Gertrude, and
punitive damages.

J. Demurrers

On September 15, 2023, Ted, UA, Supreme Studios, TF #2
and TF #3 filed a demurrer to the fourth amended complaint.
They argued that the causes of action were barred by res judicata
and the statute of limitations. In addition, Janice lacked
standing to bring the action. And the cause of action for
declaratory relief did not allege an actual controversy because the
Family Trust was revoked in 2015.
Ted, UA, Supreme Studios, TF #2, and TF #3 filed a
request for judicial notice of several pleadings, liens, and other
legal documents in support of the demurrer. The record does not
reflect the trial court’s ruling on the request.
UA also filed a demurrer to the first amended petition to
invalidate revocation of the Family Trust. UA argued the claims
in the petition were barred by res judicata and the statute of

20
limitations. In addition, Janice lacked standing to bring elder
abuse claims.
Janice opposed both demurrers. She argued that the
settlement agreement in the avoidance action expressly excluded
any release of claims by the Fox parties against one another. In
addition, the settlement agreement did not release claims for
takings that had not yet occurred. The elements of res judicata
had not been met, and the defendants had not shown as a matter
of law that Janice lacked standing or that the claims were barred
by the statute of limitations.
Ted, UA, Supreme Studios, TF #2, and TF #3 filed a reply
in the elder abuse action, and UA filed a reply in the probate
case.
A hearing was held on the demurrers on October 12, 2023.
The trial court requested additional briefing on the issue of
whether the complaint or the trust petition alleged a taking of
any of Gertrude’s separate property, and if so, which causes of
action were based on Gertrude’s separate property. Ted, UA,
Supreme Studios, TF #2, and TF #2 filed a supplemental brief
and supplemental request for judicial notice of pleadings filed in
other probate cases. Janice also filed a supplemental brief.

K. Ruling on Demurrer to Trust Petition

On August 16, 2024, the trial court issued a minute order
sustaining the demurrer in the probate case without leave to
amend. The court concluded Janice’s claims regarding the 2015
revocation of the Family Trust were within the scope of the
waiver executed in the avoidance action. The settlement
agreement explicitly waived future claims based on the causes of

21
action that had been raised, including the bankruptcy trustee’s
assertion that the series of transactions amending the Family
Trust, revoking the Family Trust, and transferring assets to the
Bearbiz Trust were improper. The claims that were raised in the
avoidance action concerned the same primary right to the
property formerly held by the Family Trust, and sought redress
for the same acts and occurrences, namely, an alleged scheme to
place Ted in control over the assets. The settlement agreement
between the parties and the bankruptcy trustee constituted a
final judgment for purposes of res judicata.
The trial court concluded the causes of action in the trust
petition and the causes of action in the bankruptcy proceeding
were ultimately concerned with the same act, namely, the
revocation of the Family Trust as part of a schedule of estate
management changes for an improper purpose. Causes of action
arising from acts disputed by the bankruptcy trustee, which
belonged to Gerson and Gertrude’s marital community and
therefore to the bankruptcy trustee, were within the scope of the
settlement agreement. The settlement agreement, substantively,
was an appropriate basis for res judicata to bar the causes of
action in the trust petition.
On the issue of privity, the trial court found Janice’s claims
of financial elder abuse of Gertrude and improper procurement of
the 2015 revocation were brought as a successor in interest. The
interest raised was identical to the interest of the bankruptcy
trustee, as the causes of action at issue were based on allegations
of a wrongful scheme of transactions and occurrences, including
the 2015 revocation. Gertrude shared a community of interest
regarding the taking of the community property at issue in the
elder abuse allegations with the bankruptcy trustee. As such,

22
Janice, in alleging injury to Gertrude, shared a community of
interest concerning these claims with Gertrude and the
bankruptcy trustee, who held the claims belonging to Gerson and
Gertrude. Janice was in privity with the party holding and
settling the claims, and she was raising claims that affected the
same primary rights as those addressed in the bankruptcy
petition, namely, the right to control the disposition of the
property held by the Family Trust and the Bearbiz Trust, so the
claims were precluded. The demurrer was sustained.

L. Ruling on Demurrer to Elder Abuse Action

Also on August 16, 2024, the trial court issued a minute
order sustaining the demurrer to the complaint without leave to
amend. The trial court noted the bankruptcy estate included
community property causes of action held by Gerson and
Gertrude. The settlement agreement explicitly stated the parties
waived future claims based on the causes of action alleged, which
included the bankruptcy trustee’s assertion that the takings were
improper. The allegations at issue concern the same primary
rights to the property and seek redress for the same acts and
occurrences. A substantial portion of the factual allegations are
identical between the two complaints. As such, the claims are
precluded against any individual in privity with the parties to the
previous action.
Although a provision of the settlement agreement appears
to exclude claims between the Fox Parties, the financial elder
abuse claim is essentially identical to the claims brought by the
bankruptcy trustee, so if the language of the settlement
agreement is interpreted to exclude the elder abuse claims

23
brought on behalf of Gertrude, the waiver would apply to no
claims at all. The settlement agreement must have resolved the
claims that were actually raised by the bankruptcy action.
As to privity, the trial court found Janice’s claims of
financial elder abuse of Gertrude were brought as a successor in
interest. The interest raised was identical, as the causes of
action at issue for financial elder abuse against parties to the
settlement agreement were based on the transactions and
occurrences that were the subject of the settlement agreement.
Gertrude shared a community of interest regarding the taking of
the community property at issue in the elder abuse allegations
with the bankruptcy trustee, who raised the claims of the debtor
and the marital community. As such, Janice, alleging injury to
Gertrude, shares a community of interest concerning these claims
with both Gertrude and the bankruptcy trustee.
References to Gertrude’s separate property in the
complaint were insufficient to demonstrate that the elder abuse
claims concerned Gertrude’s separate property. The references
did not establish a cause of action as to any of the property at
issue. The sale of the Roxbury property occurred after the filing
of the original pleading in 2021, such that allegations about that
sale did not cure the defective pleading. Janice’s supplemental
briefing failed to identify which of the alleged acts of financial
elder abuse implicated the assets alleged to be Gertrude’s
separate property, namely, the Shenandoah Shopping Center or
the Roxbury property. Janice’s arguments that it was
conceivable that property referred to in the complaint was
separate property outside the scope of the settlement agreement,
without any corresponding allegations of fact in the complaint or
even a firm assertion in the brief that the property was separate

24
property, were insufficient to cure the defects on demurrer. Her
argument that the character of the funds taken under the special
trustee agreement would be determined through discovery did
not satisfy her burden on demurrer.
The vague allegations of the complaint as to when and how
Janice discovered the underlying acts were not sufficient to plead
delayed discovery as to the first two causes of action for elder
abuse. The allegations of the third cause of action were not tied
to a particular date, and therefore the complaint did not disclose
on its face that the claim was untimely. The allegations of the
fourth and fifth causes of action were within the four-year statute
of limitations for elder abuse.
The trial court did not reach the defendants’ argument that
Janice lacked standing to bring the elder abuse causes of action.
On September 11, 2024, the trial court issued an amended
final ruling sustaining the demurrer to the complaint with
prejudice. On October 16, 2024, the trial court entered a
judgment of dismissal in the elder abuse action. Janice filed a
timely notice of appeal.
On February 3, 2025, the trial court entered an order
denying Janice’s trust petition with prejudice. Janice filed a
timely notice of appeal from this order as well.
On September 3, 2025, this appellate court granted the
parties’ stipulation to consolidate the appeals.

25
 DISCUSSION

A. Standard of Review

“We review a trial court’s ruling on a demurrer de novo and
treat as admitted all material, well-pleaded facts, but not
contentions or conclusions of fact or law. [Citation.] We may also
consider matters that are subject to judicial notice. [Citation.] A
general demurrer may be sustained when the pleading discloses
a defense or bar to recovery. [Citation.]” (Consumer Protection
Group, LLC v. Signal Brands, LLC (2026) 122 Cal.App.5th 214,
225.)
When the preclusion doctrine is raised as a ground for the
demurrer, “we must necessarily consider the prior judgment that
purportedly has res judicata effect. (See Planning &
Conservation League v. Castaic Lake Water Agency (2009) 180
Cal.App.4th 210, 225 [court may take judicial notice of court
records in considering demurrer based on res judicata].)” (Estate
of Dito, supra, 198 Cal.App.4th at p. 795.)
Similarly, we review application of the preclusion doctrine
de novo (Crosby v. HLC Properties, Ltd. (2014) 223 Cal.App.4th
597, 602 (Crosby)), including privity issues presented on
undisputed facts (Citizens for Open Access etc. Tide, Inc. v.
Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1069–1070 (Citizens).)
The proper interpretation of a settlement agreement, in the
absence of extrinsic evidence, is also subject to de novo review.
(Crosby, supra, at p. 602).
When a demurrer is sustained without leave to amend, an
abuse of discretion will be found if the plaintiff shows there is a

26
reasonable possibility that the defect can be cured by
amendment. (Dawadi v. Adhikari (2026) 120 Cal.App.5th 558,
562.)

B. Relevant Statutory Scheme Governing Elder Abuse

The Elder Abuse Act was enacted to “protect a particularly
vulnerable portion of the population from gross mistreatment in
the form of abuse and custodial neglect.” (Delaney v. Baker
(1999) 20 Cal.4th 23, 33.) An “elder” is a person residing in
California who is 65 years or older. (§ 15610.27.) “Financial
abuse” of an elder occurs when a person or entity “[t]akes,
secretes, appropriates, obtains, or retains real or personal
property of an elder or dependent adult for a wrongful use or with
the intent to defraud or both,” or by undue influence, as defined
by statute. (§ 15610.30, subd. (a)(1) & (3); see §§ 15657.5
[authorizing action for damages and recovery of enhanced
remedies in certain circumstances], 15657.6 [return of
property].)3

3 “The terms ‘wrongful use’ and ‘undue influence’ are
specifically defined as well. ‘A person or entity shall be deemed
to have taken, secreted, appropriated, obtained, or retained
property for a wrongful use if, among other things, the person or
entity . . . knew or should have known that this conduct is likely
to be harmful to the elder or dependent adult.’ (§ 15610.30, subd.
(b).) ‘ “Undue influence” means excessive persuasion that causes
another person to act or refrain from acting by overcoming that
person’s free will and results in inequity.’ (§ 15610.70.) The test
for ‘undue influence’ is governed by a series of listed factors,
including the ‘vulnerability of the victim’ (§ 15610.70, subd.
(a)(1)), the ‘influencer’s apparent authority’ (id., subd. (a)(2)), the
‘actions or tactics used by the influencer’ (id., subd. (a)(3)), and

27
C. Relevant Bankruptcy Principles

When a debtor files a petition for bankruptcy under chapter
7 of the United States Bankruptcy Code, all of the debtor’s legal
and equitable property interests are automatically included in
the bankruptcy estate created to satisfy creditors’ claims, unless
the property is expressly excluded by statute or properly
exempted by the debtor. (Gladstone v. U.S. Bancorp (9th Cir.
2016) 811 F.3d 1133, 1139.)
The bankruptcy estate generally includes the community
property of the debtor and the debtor’s spouse at the time that
the bankruptcy petition is filed. (11 U.S.C. § 541(a)(2); In re
Brace (2020) 9 Cal.5th 903, 913.) “The Bankruptcy Code specifies
that community property is part of the estate; bankruptcy courts
look to state law to determine what property counts as
community property. [Citation.]” (In re Brace, supra, 9 Cal.5th
at p. 913.)
In addition, when the settlor of a trust retains the power to
revoke the trust in whole or in part, as the settlors of the Family
Trust did in this case, the trust property is subject to the claims
of creditors of the settlor to the extent of that power of revocation
during the lifetime of the settlor. (Prob. Code, § 18200.)
Consistent with California law, bankruptcy law treats the assets
of self-settled revocable trusts as property of the individual
settlor’s bankruptcy estate. (See In re Mohsen (Bankr. N.D.Cal.,
Mar. 12, 2014, No. 05-50662-ASW), 2014 WL 985442, *2 [‘ “It is

the ‘equity of the result’ (id., subd. (a)(4)).” (Mahan v. Charles W.
Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 857.)

28
established law that a self-settled, revocable trust in which the
debtor is also the beneficiary is property of a debtor’s estate” ’].)
The bankruptcy estate also includes all causes of action and
claims for relief that the debtor had at the time that the
bankruptcy petition was filed. (Cloud v. Northrop Grumman
Corp. (1998) 67 Cal.App.4th 995, 1001–1002; Yaquinto v.
Segerstrom (In re Segerstrom) (5th Cir. 2001) 247 F.3d 218, 224.)
A debtor’s pre-petition cause of action may become property of
the bankruptcy estate even if the cause of action is not assignable
or transferable under state law. (See In re Cottrell (6th Cir.
1989) 876 F.2d 540, 542−543; Baum v. Duckor (1999) 72
Cal.App.4th 54, 71−72.)
The bankruptcy trustee “is the representative of the
estate,” with the capacity to sue and be sued. (11 U.S.C. § 323.)
“Among the trustee’s duties is the obligation to ‘collect and reduce
to money the property of the estate.’ (Id. § 704(1).) The ‘property
of the estate’ includes . . . the debtor’s ‘causes of action.’
[Citation.] Thus, ‘[u]nder the Bankruptcy Code the trustee
stands in the shoes of the bankrupt corporation and has standing
to bring any suit that the bankrupt corporation could have
instituted had it not petitioned for bankruptcy.’ [Citation.]”
(Smith v. Arthur Andersen LLP (9th Cir. 2005) 421 F.3d 989,
1002.)
“[T]he trustee’s duty is to maximize the assets of the
bankruptcy estate to allow maximum recovery for the debtor’s
creditors.” United States v. Sims (In re Feiler) (9th Cir. 2000) 218
F.3d 948, 952.) The bankruptcy trustee does not have standing,
however, to assert creditors’ claims against third parties, but may
only assert claims held by the bankrupt debtor. (Smith v. Arthur
Andersen LLP, supra, 421 F.3d at p. 1002.)

29
 The bankruptcy estate also includes certain property
interests acquired after the bankruptcy case is initiated (11
U.S.C. § 541(a)(7)), including a cause of action related to an asset
of the estate that accrues after the bankruptcy filing (id. at
§ 541(a)(6); Bostanian v. Liberty Savings Bank (1997) 52
Cal.App.4th 1075, 1084).

D. Principles of Preclusion Doctrine

The preclusion doctrine helps ensure “that a dispute
resolved in one case is not relitigated in a later case.” (Samara v.
Matar (2018) 5 Cal.5th 322, 326 (Samara).) For clarity, we follow
the California Supreme Court’s recommendation to use the term
“claim preclusion” in place of “res judicata,” and “issue
preclusion” instead of “collateral estopped.” (Ibid.)
“Claim and issue preclusion have different requirements
and effects.” (Samara, supra, 5 Cal.5th at p. 326.) Claim
preclusion prevents relitigation of entire claims that were raised,
or should have been raised, in a previous action involving the
same parties or parties in privity with them. (DKN Holdings
LLC v. Faerber (2015) 61 Cal.4th 813, 824 (DKN Holdings);
Samara, supra, 5 Cal.5th at pp. 326−327 [noting primary right
theory defines scope of cause of action].) “Claim preclusion arises
if a second suit involves (1) the same cause of action (2) between
the same parties [or their privies] (3) after a final judgment on
the merits in the first suit.” (DKN Holdings, supra, at p. 824.)
In comparison, issue preclusion prevents “relitigation of
issues argued and decided in a previous case, even if the second
suit raises different causes of action.” (DKN Holdings, supra, 61
Cal.4th at p. 824.) “[I]ssue preclusion applies: (1) after final

30
adjudication (2) of an identical issue (3) actually litigated and
necessarily decided in the first suit and (4) asserted against one
who was a party in the first suit or one in privity with that
party.” (Id. at p. 825.)
“A court-approved settlement acts as a final judgment on
the merits for the purposes of res judicata.” (Consumer Advocacy
Group, Inc. v. ExxonMobil Corp. (2008) 168 Cal.App.4th 675, 694
(ExxonMobil).)

E. Application to Claims Arising Prior to Bankruptcy
Filing

Janice contends the financial elder abuse claims alleged in
her complaint and her trust petition are not precluded by the
bankruptcy trustee’s settlement of the avoidance action. We
conclude Janice’s financial elder abuse claims based on acts that
occurred prior to the bankruptcy filing, or during the bankruptcy
proceedings in relation to the property of the bankruptcy estate,
were properly found to be precluded.

1. Causes of Action at Issue

The complaint alleged several causes of action for financial
elder abuse based on actions taken prior to Gerson’s bankruptcy
filing: (1) the execution of the special trustee agreement in
August 2011, (2) acts to encumber and transfer assets from the
Family Trust to entities controlled by Ted and/or Barry, including
actions to take Gertrude’s interest in 22 entities and properties
itemized on the asset list attached to the special trustee
agreement, and (3) acts to take Gertrude’s interest in the

31
Barney’s property. The probate petition similarly alleged a cause
of action for financial elder abuse based on actions taken prior to
the bankruptcy filing: (1) the creation of, and transfer of assets
to, the Bearbiz Trust, (2) the special trustee agreement, (3) the
eighth amendment to the Family Trust, and (4) actions to
encumber and place liens on assets.
Under the Elder Abuse Act, “a person or entity takes,
secretes, appropriates, obtains, or retains real or personal
property when an elder or dependent adult is deprived of any
property right, including by means of an agreement, donative
transfer, or testamentary bequest, regardless of whether the
property is held directly or by a representative of an elder or
dependent adult.” (§ 15610.30, subd. (c).) An elder may be
“deprived” of a property right, such that a “taking” has occurred,
even without a transfer of title when an elder enters into an
agreement that significantly impairs the value of the elder’s
property. (Bounds v. Superior Court (2014) 229 Cal.App.4th 468,
472.)
As alleged in Janice’s complaint and the trust petition,
Gertrude had financial elder abuse claims based on the taking of
these property interests at the time that Gerson filed for
bankruptcy. Gertrude’s financial elder abuse claims were
acquired during marriage, and therefore presumptively
community property. When Gerson filed for bankruptcy, all of
the couple’s community property, including these financial elder
abuse claims, automatically became part of the bankruptcy
estate.

32
 2. Same Claim

Janice contends the elder abuse claims alleged in her
complaint and the trust petition are not the “same claim” as was
litigated in the avoidance action. We disagree.
“Two proceedings are on the same cause of action if they
are based on the same ‘primary right.’ (Mycogen Corp. v.
Monsanto Co. [(2002) 28 Cal.4th 888, 904 (Mycogen)].)”
(Federation of Hillside & Canyon Assns. v. City of Los Angeles
(2004) 126 Cal.App.4th 1180, 1202 (Federation).) “A cause of
action comprises the plaintiff’s primary right, the defendant’s
corresponding primary duty, and the defendant’s wrongful act in
breach of that duty. [Citation.]” (Ibid.)
“The plaintiff’s primary right is the right to be free from a
particular injury, regardless of the legal theory on which liability
for the injury is based. [Citation.]” (Federation, supra, 126
Cal.App.4th at p. 1202.) “ ‘ “Even where there are multiple legal
theories upon which recovery might be predicated, one injury
gives rise to only one claim for relief.” [Citation.] The primary
right must also be distinguished from the remedy sought: ‘The
violation of one primary right constitutes a single cause of action,
though it may entitle the injured party to many forms of relief,
and the relief is not to be confounded with the cause of action, one
not being determinative of the other.” [Citation.]’ ”’ (Mycogen,
supra, 28 Cal.4th at p. 904.)
“An injury is defined in part by reference to the set of facts,
or transaction, from which the injury arose. Thus, the California
Supreme Court in Mycogen Corp. v. Monsanto Co., supra, 28
Cal.4th at pages 906, held that a breach of contract gives rise to a

33
single cause of action, all of the remedies for which must be
sought in a single action, even if a particular item of damage has
not yet been sustained. The court held that the plaintiff’s
primary right was the right to be free from all of the injuries
arising from a particular breach of contract, and distinguished
cases where separate and distinct contract covenants were
breached at different times. (Id. at pp. 907–908.) The Mycogen
court declined to adopt the transactional theory of res judicata of
the Restatement Second of Judgments in lieu of California’s
primary rights theory, noting that the result in the case would be
the same under either theory. (Mycogen, supra, at p. 909,
fn. 13.)” (Federation, supra, 126 Cal.App.4th at p. 1203.)
“Next is the question, under what circumstances is a
matter to be deemed decided by the prior judgment? Obviously, if
it is actually raised by proper pleadings and treated as an issue
in the cause, it is conclusively determined by the first judgment.
But the rule goes further. If the matter was within the scope of
the action, related to the subject-matter and relevant to the
issues, so that it could have been raised, the judgment is
conclusive on it despite the fact that it was not in fact expressly
pleaded or otherwise urged. The reason for this is manifest. A
party cannot by negligence or design withhold issues and litigate
them in consecutive actions. Hence the rule is that the prior
judgment is res judicata on matters which were raised or could
have been raised, on matters litigated or litigable. In Price v.
Sixth District, 201 Cal. 502, 511, this court said: ‘But an issue
may not be thus split into pieces. If it has been determined in a
former action, it is binding notwithstanding the parties litigant
may have omitted to urge for or against it matters which, if
urged, would have produced an opposite result . . . .’ [Citations.]”

34
(Sutphin v. Speik (1940) 15 Cal.2d 195, 202; see also Warga v.
Cooper (1996) 44 Cal.App.4th 371, 377–378.)
The financial elder abuse causes of action alleged to have
occurred prior to the bankruptcy filing are based on the same
primary right as the claims raised by the bankruptcy trustee in
the avoidance action. The injury to Gertrude was having her
property wrongfully taken from her. She had a primary right not
to have the property wrongfully taken from her, the defendants
had a duty not to wrongfully take her property, and the property
at issue was wrongfully taken from her. Financial elder abuse
and breach of fiduciary duty are different legal theories of
recovery for the same injury. Although different remedies are
available for elder abuse, it is not a different claim under the
primary rights doctrine.
The bankruptcy trustee sought to recover the property
taken from Gerson and Gertrude by avoiding property transfers
to the Bearbiz Trust, invalidating the Bearbiz Trust, and
recovering damages for breach of fiduciary duty based on Ted’s
actions in purchasing and enforcing judgments and liens against
his parents’ property interests. The avoidance action alleged that
UA and TF #2 acquired Gerson’s interest in no less than 22 single
purpose entities itemized on the asset list attached to the special
trustee agreement. The bankruptcy trustee could have brought a
financial elder abuse claim based on the same set of factual
circumstances and the same injury, and therefore, the financial
elder abuse claims that Janice alleged based on the same injury
are precluded under the claim preclusion doctrine.

35
 3. Standing to Bring Financial Elder Abuse Claim

Janice contends the bankruptcy trustee could not have
brought a financial elder abuse claim in the avoidance action,
however, because a bankruptcy trustee does not have standing to
bring a financial elder abuse claim under the Elder Abuse Act.
We conclude that the bankruptcy trustee had standing during
Gertrude’s lifetime to pursue her financial elder abuse claim.
The Elder Abuse Act provides that during the elder’s
lifetime, if a demand for the return of the elder’s property is
unsuccessful, an action for damages and other relief may be
brought by the elder or the elder’s “representative” if the elder
lacks capacity pursuant to Probate Code section 812 of the
Probate Code, or is of unsound mind, but not entirely without
understanding, pursuant to Civil Code section 38. (§ 15657.6;
Tepper v. Wilkins (2017) 10 Cal.App.5th 1198, 1204–1205.) For
purposes of the Elder Abuse Act, “representative” means a person
or entity that is either: “(1) [a] conservator, trustee, or other
representative of the estate of an elder or dependent adult” or “(2)
[a]n attorney-in-fact of an elder or dependent adult who acts
within the authority of the power of attorney.” (§ 15610.30, subd.
(d).)
After the elder’s death, the right to bring or maintain a
financial elder abuse action passes to the decedent’s personal
representative. (§ 15657.3, subd. (d)(1).) If there is no personal
representative, or the personal representative refuses to
commence or maintain an action, the right to prosecute an action
passes to the following: “(A) An intestate heir whose interest is
affected by the action. [¶] (B) The decedent’s successor in

36
interest, as defined in Section 377.11 of the Code of Civil
Procedure; [¶] (C) An interested person, as defined in Section 48
of the Probate Code,” except not including “a creditor or a person
who has a claim against the estate and who is not an heir or
beneficiary of the decedent’s estate.” (§ 15657.3, subd. (d)(1)(A)-
(C), (d)(2); see Estate of Lowrie (2004) 118 Cal.App.4th 220,
228−230 [standing to bring elder abuse lawsuit after death of
elder].)
As noted above, the Bankruptcy Code specifies that the
bankruptcy trustee “is the representative of the estate” with the
capacity to sue and be sued. (11 U.S.C. § 323.) The bankruptcy
trustee steps into the shoes of the elder to pursue the elder’s
claim for financial elder abuse. Interpreting the Elder Abuse Act
to allow standing for a bankruptcy trustee to bring a financial
elder abuse action during the elder’s lifetime is consistent with
the purpose of the Elder Abuse Act to protect a vulnerable
population from gross mistreatment, because the bankruptcy
trustee’s goal is to recover assets taken from the elder and return
them to the bankruptcy estate. Although the bankruptcy
trustee’s role is to maximize the assets of the bankruptcy estate
to allow maximum recovery by the estate’s creditors, the
bankruptcy trustee is not a creditor of the estate who would be
precluded from bringing a financial elder abuse action after the
elder’s death.

4. Privity

Janice also contends the preclusion doctrine is inapplicable
because neither Gertrude, nor Janice, was in privity with the
bankruptcy trustee. We conclude Gertrude and Janice were both

37
in privity with the bankruptcy trustee for the purpose of
asserting Gertrude’s financial elder abuse claims that accrued
prior to Gerson’s bankruptcy filing.
“In the context of a res judicata determination, privity
‘ “refers ‘to a mutual or successive relationship to the same rights
of property, or to such an identification in interest of one person
with another as to represent the same legal rights [citations] and,
more recently, to a relationship between the party to be estopped
and the unsuccessful party in the prior litigation which is
“sufficiently close” so as to justify application of the doctrine of
collateral estoppel.’ ” ’ [Citation.] ‘ “[T]he determination of
privity depends upon the fairness of binding appellant with the
result obtained in earlier proceedings in which it did not
participate. [Citation.] ‘ “Whether someone is in privity with the
actual parties requires close examination of the circumstances of
each case.” ’ ” ’ [Citation.]” (ExxonMobil, supra, 168 Cal.App.4th
at pp. 689–690.)
“ ‘This requirement of identity of parties or privity is a
requirement of due process of law.’ [Citation.]” (ExxonMobil,
supra, 168 Cal.App.4th at p. 690.) “ ‘ “Due process requires that
the nonparty have had an identity or community of interest with,
and adequate representation by, the . . . party in the first action.
[Citations.] The circumstances must also have been such that
the nonparty should reasonably have expected to be bound by the
prior adjudication. . . .” ’ [Citations.]” (Citizens, supra, 60
Cal.App.4th at p. 1070.)
“Our Supreme Court has recognized that: ‘Privity is not
susceptible of a neat definition, and determination of whether it
exists is not a cut-and-dried exercise. [Citations.]’ [Citations.] In
the final analysis, the determination of privity depends upon the

38
fairness of binding appellant with the result obtained in earlier
proceedings in which it did not participate. [Citation.]
‘ “Whether someone is in privity with the actual parties requires
close examination of the circumstances of each case.” [Citation.]’
[Citation.]” (Citizens, supra, 60 Cal.App.4th at p. 1070.)
In Citizens, the appellate court concluded a public interest
group’s action to establish a public recreational easement was
barred by a settlement agreement and judgments in two lawsuits
to which the public interest group had not been a party.
(Citizens, supra, 60 Cal.App.4th at pp. 1058, 1062.) The court
noted that the California Attorney General, the California
Coastal Commission, and the State Lands Commission
represented the public as a whole in litigating the original
lawsuits and entering the settlement agreement, and, therefore,
had represented the public interest group. (Id. at p. 1070.)
Because the state agencies “zealously pursued the rights of the
public to use the Bolinas Sandspit,” the settlement agreement
and final judgments precluded the public interest group’s
subsequent action for the same access rights. (Id. at p. 1072.)
The adequacy of representation by the party in the first
lawsuit is measured “ ‘by inference, examining whether the . . .
party in the suit which is asserted to have a preclusive effect had
the same interest as the party to be precluded, and whether that .
. . party had a strong motive to assert that interest.’ ” (Citizens,
supra, 60 Cal.App.4th at p. 1071.)
We agree with the trial court that Gertrude and Janice
were in privity with the bankruptcy trustee as to Gertrude’s
financial elder abuse claims. The bankruptcy trustee was
authorized to administer Gertrude’s financial elder abuse claims
for the benefit of the debtor’s estate. The bankruptcy trustee

39
stepped into Gertrude’s shoes to assert the claims, and held the
same relationship to the legal rights as Gertrude, with the same
strong motivation to recover the property for the bankruptcy
estate. In Janice’s pleadings, she alleged the same financial elder
abuse claims on Gertrude’s behalf that had been transferred to
the bankruptcy estate. The bankruptcy trustee and Janice were
in privity, as they were both asserting Gertrude’s interest on
behalf of Gertrude.
Janice contends Gertrude was not in privity with the
bankruptcy trustee and could not reasonably expect to be bound
by the outcome of the avoidance action because Gertrude was a
defendant in the avoidance action. But the claim alleged in the
avoidance action against Gertrude simply disputed the separate
property characterization of a payment to Gertrude, which is not
at issue in these financial elder abuse claims. With respect to
recovering property that is the subject of the financial elder
abuse claims, the bankruptcy trustee asserted the same interest
as Gertrude in the avoidance action.

5. Final Judgment

Janice contends the settlement was not a final judgment
with respect to Gertrude’s financial elder abuse claims because
the agreement expressly excluded Gertrude’s claims against Ted
and his entities. We conclude this interpretation of the
settlement agreement is incorrect.
The agreement settled all claims that the bankruptcy
trustee could have asserted against the Fox Signatories,
including Ted and his entities. Gertrude’s financial elder abuse
claims based on actions taken prior to the bankruptcy filing were

40
in the bankruptcy estate. The bankruptcy trustee could have
asserted the financial abuse claims against Ted and his entities,
so those were among the claims released in the agreement.
The Fox Parties excluded any claims against any of the
other Fox Parties from the release. At the time that Gertrude
entered into the settlement agreement, however, she no longer
had any financial elder abuse claims based on actions prior to the
bankruptcy filing, as those financial elder abuse claims had been
transferred to the bankruptcy estate to administer. Therefore,
the exception did not apply to Gertrude’s financial elder abuse
claims. The settlement agreement resulted in a final judgment
as to the financial elder abuse claims that the bankruptcy trustee
could have brought in the avoidance action.

6. Statute of Limitations

In light of our conclusion that Janice is precluded from
raising financial elder abuse claims that the bankruptcy trustee
could have brought in the avoidance action, specifically, the first
three causes of action in Janice’s complaint and the fourth cause
of action in her trust petition, we need not consider whether the
first two causes of action in the complaint were additionally
barred by the statute of limitations.

F. Application to Claims Arising After Settlement
Agreement

Janice contends financial elder abuse claims based on
actions that took place after the settlement agreement are not
precluded. We agree that claims are not precluded if they were

41
not part of the bankruptcy estate and did not arise during the
bankruptcy proceedings in relation to property in the bankruptcy
estate.

1. Wolf Rifkin Attorney Client Trust Account

The complaint’s fourth cause of action for financial elder
abuse alleged $566,866.37 belonging to Gertrude was received by
Wolf Rifkin after July 22, 2019, and held in an attorney client
trust account, but the funds were taken by UA. Respondents
contend this claim is precluded by the prior proceeding because
documents subject to judicial notice show UA placed a lien on
certain property in 2013, prior to the bankruptcy filing, which
was the basis for UA’s receipt of the funds from the account in
2019. We conclude the claim alleged in the complaint is not
subject to demurrer based on the preclusion doctrine.
Under the settlement agreement approved by the
bankruptcy court in June 2018, the bankruptcy trustee
transferred all of the bankruptcy estate’s interest in property
that had not been abandoned, disposed of, or otherwise
administered to an unnamed designee in care of Wolf Rifkin. In
addition, the avoidance action alleged Gertrude held a secured
claim in the Star News bankruptcy for a loan of $1,000,000, as
her separate property, although the bankruptcy trustee disputed
the separate property characterization. In exchange for a
payment of $380,000 from Gertrude, the bankruptcy trustee
settled and released any claim that these funds from the Star
News bankruptcy were community property, rather than
Gertrude’s separate property. Certain proceeds from the Star
News bankruptcy proceeding were transferred to Wolf Rifkin by

42
court order and eventually released to UA. The settlement
agreement released the bankruptcy estate’s claims against Ted
and his entities, but Gertrude did not release claims arising from
her separate property interests, which were never part of the
bankruptcy estate.
Respondents rely on documents submitted to the trial court
in their request for judicial notice to assert that UA’s lien on the
property was created in 2013, UA and Buchalter disputed
entitlement to proceeds from the property, and the bankruptcy
trustee released any claim to the funds. Respondents argue that
as a result, the transfer of funds to UA was not a new action
outside of the scope of the release.
We note that “ ‘[a] matter ordinarily is subject to judicial
notice only if the matter is reasonably beyond dispute.
[Citation.]’ [Citation.] [¶] ‘Taking judicial notice of a document
is not the same as accepting the truth of its contents or accepting
a particular interpretation of its meaning.’ [Citation.] While
courts take judicial notice of public records, they do not take
notice of the truth of matters stated therein. [Citation.]”
(Herrera v. Deutsche Bank National Trust Co. (2011) 196
Cal.App.4th 1366, 1374–1375.)
The court cannot take judicial notice of the truth of the
matters asserted in public records to determine the source of the
funds held in the Wolf Rifkin attorney client account in 2019,
which were alleged to belong to Gertrude. Based on the
allegations of the complaint, the financial elder abuse claim for
transferring funds from the Wolf Rifkin client account to UA in
2019 is not precluded by the prior proceeding. The order
sustaining the demurrer must be reversed as to the cause of
action that is based on funds in the Wolf Rifkin client account.

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 2. Writ of Execution

The complaint’s fifth cause of action for financial elder
abuse is based on allegations that Ted, individually and through
his entities, with Barry’s participation, filed a writ of execution
against Gerson on October 21, 2020, in the amount of
$18,695,830, less credit of $8,628,577, for a total amount due of
$12,027,751.95. The complaint does not allege any further
details concerning the basis for the writ of execution or the
alleged taking of property from Gertrude.
In the trial court, the respondents requested judicial notice
of a writ of execution that UA filed on October 21, 2020, to
execute on the JRSL judgment. The total judgment was listed as
$18,498,071. The total judgment after adding costs was
$18,695,830. After credits and accrued interest, the total amount
due was $12,027,751.95.
Janice has not alleged or argued how the writ of execution
is a taking of property separate from Ted’s actions, through UA,
to obtain the JRSL judgment. The actions to obtain the JRSL
judgment took place before Gerson’s bankruptcy filing. The
bankruptcy trustee’s avoidance action alleged the JRSL judgment
was entered in March 2013, in favor of UA, as the assignee of
JRSL, and against Gerson, in the amount of $18,498,071. The
bankruptcy trustee settled and released claims that could have
been brought for financial elder abuse based on the JRSL
judgment. There is no allegation in the complaint or argument
on appeal that the acts to obtain a writ of execution on the
judgment were wrongful, taken with the intent to defraud
Gertrude, or obtained through undue influence, apart from the

44
earlier acts to obtain the JRSL judgment against Gerson. Filing
a writ of execution was not a taking of Gertrude’s property that
had not previously been at issue in the prior proceeding. The
demurrer was properly sustained as to the fifth cause of action
for financial elder abuse.

G. Causes of Action for Revocation of Family Trust

Janice contends the causes of action in the trust petition
seeking to invalidate the revocation of the Family Trust based on
undue influence, duress, and/or mistake of fact are not precluded
by the bankruptcy trustee’s settlement of the avoidance action.
This is correct, because Janice was not in privity with the
bankruptcy trustee with respect to invalidation of the revocation.
Janice brought causes of action challenging revocation of
the Family Trust on her own behalf, as a contingent beneficiary.
“[Probate Code section] 17200, subdivision (a), authorizes a
beneficiary to petition the court concerning the trust’s affairs ‘or
to determine [its] existence.’ [Probate Code section] 17200,
subdivision (b)(3) contemplates the court’s determination of ‘the
validity of a trust provision.’ Plainly, the term ‘trust provision’
incorporates any amendments to a trust. [Probate Code section]
24, subdivision (c) defines a ‘beneficiary’ for trust purposes, as ‘a
person who has any present or future interest, vested or
contingent.’ ” (Barefoot v. Jennings (2020) 8 Cal.5th 822, 827.)
“Reading the Probate Code section consistent with the statutory
scheme as a whole, and examining the statutory language to give
it commonsense meaning, we conclude that claims that trust
provisions or amendments are the product of incompetence,
undue influence, or fraud, as is alleged here, should be decided by

45
the probate court, if the invalidity of those provisions or
amendments would render the challenger a beneficiary of the
trust. [Citation.] So when a plaintiff claims to be a rightful
beneficiary of a trust if challenged amendments are deemed
invalid, she has standing to petition the probate court under
[Probate Code] section 17200.” (Id. at p. 828.)
Janice brought the causes of action to invalidate revocation
of the Family Trust on her own behalf as a contingent beneficiary
of the Family Trust. The bankruptcy trustee’s interest in the
avoidance action was to preserve and maximize the assets of the
bankruptcy estate for the benefit of creditors. Apart from
reaching the property of the bankruptcy estate, the bankruptcy
trustee did not have an interest in invalidating the revocation
document to restore the Family Trust or ensure the integrity of
Gertrude’s testamentary scheme. The bankruptcy trustee had no
interest in ensuring the proper testamentary disposition of
Gertrude’s assets after the bankruptcy proceedings, including:
(1) Gertrude’s separate property in the Family Trust, if any, (2)
community property exempted from the bankruptcy estate,
(3) community property assets abandoned or returned to the
debtor’s estate; and (4) assets acquired after the conclusion of the
bankruptcy proceedings. In the prior proceeding, the bankruptcy
trustee did not represent Janice’s interests with respect to
invalidation of the revocation of the Family Trust, and therefore,
the bankruptcy trustee’s resolution of the prior proceeding does
not preclude Janice’s causes of action to invalidate the revocation
of the Family Trust.

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H. Leave to Amend

Janice contends the trial court abused its discretion by
denying leave to amend because she could have cured the
deficiencies by adding more detail, but she has not stated any fact
on appeal that she could have alleged if leave had been granted
that would have changed the result. No abuse of discretion has
been shown.

DISPOSITION

The October 16, 2024 judgment of dismissal in the civil
elder abuse action and the September 11, 2024 order sustaining
the demurrer in the civil elder abuse action are reversed. The
trial court is directed to enter a new and different order
overruling the demurrer as to the fourth cause of action for
financial elder abuse based on funds taken from a Wolf Rifkin
attorney client trust account, and otherwise sustaining the
demurrer as to the remaining causes of action with prejudice.

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 In addition, the February 3, 2025 order denying the trust
petition and the August 16, 2024 order sustaining the demurrer
to the trust petition are reversed. The trial court is directed to
enter a new and different order overruling the demurrer as to the
first three causes of action for invalidation of the revocation of the
Family Trust, and otherwise sustaining the demurrer as to the
elder abuse cause of action with prejudice.
Appellant Janice Fox is awarded her costs on appeal.
NOT TO BE PUBLISHED.

MOOR, J.

WE CONCUR:

HOFFSTADT, P. J.

KIM (D.), J.

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