Merritt

In an earlier appeal arising out of this probate matter, we affirmed the trial court’s ruling that respondent Elenice S. Dito is the surviving spouse of decedent Frank P. Dito 1 and is entitled to receive a share of his estate as an omitted spouse pursuant to Probate Code 2 section 21610 et seq. After the earlier appeal had been decided, appellants Barbara and George Merritt filed a petition alleging that Elenice is liable for financial elder abuse committed against Frank. The trial court sustained a demurrer to the petition without leave to amend on the ground the claim was barred by the doctrine of res judicata.

*795 We conclude the trial court erred. Because the primary right at issue in appellants’ petition is different from the one at issue in the earlier appeal, the petition is not barred as a matter of law on the basis of res judicata. Nevertheless, we conclude the demurrer should have been sustained on other grounds, albeit with leave to amend.

Factual and Procedural History

In reviewing an order sustaining a demurrer, we would ordinarily take the factual background from the properly pleaded material allegations of the complaint. (See Moore v. Regents of…