Judge Edward B. Moreton, Jr., Case Number: 22SMCV02598, Date: 2024-01-31 Tentative Ruling

Judge: Edward B. Moreton, Jr., Case: 22SMCV02598, Date: 2024-01-31 Tentative Ruling

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

GEICO GENERAL INSURANCE COMPANY,

Plaintiff,

STEPHEN K. KOP, et al.,

Defendants.

Case No.: 23SMCV02329

Hearing Date: March 12, 2024

[TENTATIVE] ORDER RE:

CROSS-DEFENDANT LOS ANGELES

COUNTY CHILD SUPPORT SERVICES

DEPARTMENT’S DEMURRER AND

MOTION TO STRIKE FIRST AMENDED

COMPLAINT

This case arises from an allegedly wrongful lien placed on insurance proceeds. Cross-Plaintiff Stephen Kop was in an accident with an insured of Geico General Insurance Company (“Geico”). Kop was riding a scooter when he was struck by a car driven by Geico’s insured. Geico settled the claim on behalf of its insured for $100,000.

Geico received two notices of liens. One was from the California Department of Child Support Services for $659,158.56 for child support payments. The second was a lien in the amount of $17,848.61 from United States Fire Insurance Company regarding a claim for medical expenses paid to or on behalf of Kop as a result of injuries sustained in the accident.

Geico filed an interpleader complaint and deposited the $100,000 with the Los Angeles County Superior Court. Geico later filed an amendment to the complaint to designate Doe 1 as Los Angeles County Child Support Services Department (“CCSD”).

CCSD filed a Cross-Complaint against Kop and United States Insurance Company. The Cross-Complaint sought declaratory relief and an order directing payment of the interpleaded funds to the California State Disbursement Unit.

Kop then filed a cross-complaint against his ex-wife Rande Lynne Bronster and CSSD. Kop later amended his complaint after CSSD filed a demurrer and motion to strike. The first amended cross-complaint alleges four claims.

The first claim is for declaratory relief pursuant to Family Code sections 17525 and 17526. Kop alleges he is “entitled to a judicial declaration … that he has a right to receive …. an itemized statement of support deficiency and accounting of all payments taken from his bank accounts and social security entitlement” and that the child support lien is “grossly overstated and inconsistent and is not owed at all[.]” (First Amended Cross-Complaint (“FAC”) ¶22.)

The second claim is against Bronster for “restitution-recovery of money wrongfully taken.” It claims Bronster received child support payments in excess of $100,000 which was “wrongful since no debt is owed by Kop to Bronster as the proximate result of the wrongful and tortious acts of Bronster against Kop constituting extinguishment of debt and setoff and recoupment by Kop.” (FAC ¶23.)

The third claim (incorrectly labeled as the second cause of action) is for mandamus. Kop claims he is entitlement to a writ of mandamus directing CSSD “to provide Kop the relief from their collection and enforcement of judgment actions … including release from levy of the subject lien, of Kop’s social security payment entitlements, US passport and all other licenses and privileges and any and all collection and enforcement actions for which they are authorized.” (FAC ¶27.)

The fourth claim (incorrectly labeled as the third cause of action) is for permanent injunction. Kop claims he is entitled to a judgment permanently enjoining Bronster and CSSD to “cease and desist from their collection and enforcement of judgment actions …. including Kop’s social security, passport, licenses and privileges and any and all collection and enforcement actions for which they are authorized or otherwise claim pursuant to the subject dissolution judgment.” (FAC ¶29.)

On October 10, 2023, the Court issued an order dismissing Geico and retaining jurisdiction over the interpleader action based on the two cross-complaints described above.

This hearing is on CSSD’s demurrer and motion to strike the first amended cross-complaint. CSSD argues that any challenge to the child support judgment belongs to the family law division of the superior court; the claims are barred by collateral estoppel and res judicata because they were already decided in Family Court, and in any event, any challenge to the child support judgment had to be made within six months of the judgment, which has already expired. CSSD also moves to strike Kop’s prayer for attorneys’ fees, as there is no statutory or contractual basis for the claim, and for prejudgment interest as such interest cannot be awarded against a public entity. After the demurrer and motion to strike was filed, Kop filed a second amended cross-complaint.

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)

Further, the court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc. § 436, subd. (a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc. § 436, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc. § 437.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Code Civ. Proc. §§ 430.41 and 435.5 requires that before the filing of a demurrer or motion to strike, the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer or motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer or motion to strike. (Code Civ. Proc. §§ 430.41(a), 435.5(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. §§ 430.41(a)(2), 435.5(a)(2).) Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. §§ 430.41(a)(3), 435.5(a)(3).) CSSD represents it met and conferred by telephone with Plaintiff, which satisfies the requirements of §§430.41 and 435.5.

REQUEST FOR JUDICIAL NOTICE

CSSD requests judicial notice of the following documents:

(1) search results – California Supreme Court for Stephen Kop;

(2) appellate court docket (register of actions) from the California Supreme Court in the matter entitled Kop on Discipline, Case No. S250803;

(3) appellate court docket (register of actions) from the California Supreme Court in the matter entitled Kop on Discipline, Case No. S243410;

(4) appellate court docket (disposition) from the California Supreme Court in the matter entitled Kop on Discipline, Case No. S243410;

(5) appellate court docket (case summary) from the California Supreme Court in the matter entitled Kop on Discipline, Case No. S200198;

(6) appellate court docket (register of action) from the California Supreme Court in the matter entitled Kop on Discipline, Case No. S200198;

(7) appellate court docket (case summary) from the California Supreme Court in the matter entitled Kop on Discipline, Case No. S193618;

(8) State Bar Court of California Hearing Department, Los Angeles stayed suspension filed April 21, 2011;

(9) Order from the State Bar of California Review Department filed September 28, 2012,

(10) appellate court docket (register of actions) from the California Supreme Court in the matter entitled Kop on Discipline, Case No. S193618;

(11) State Bar Court of California Hearing Department, Los Angeles stayed suspension filed December 19, 2011;

(12) State Bar Court of California Hearing Department, Los Angeles stayed suspension filed July 16, 2017;

(13) Order from the State Bar of California Review Department filed November 14, 2018;

(14) State Bar Court of California Hearing Department, Los Angeles stayed disbarment filed July 12, 2018;

(15) Order to Show Cause re Suspension from Membership in Good Standing of the Bar of the Court in In re Kop, CV 1180227.

The Court grants the request pursuant to Evid. Code §§ 452(d), 452(h) and 453.

The Court first considers whether the demurrer and motion to strike are moot because Kop filed a second amended cross-complaint. The Court concludes the second amended cross-complaint was filed without leave, in violation of Code Civ. Proc. §472(a). Section 472 permits one amendment without leave of court, before the opposition to a demurrer or motion to strike is due or before the demurrer or motion to strike is heard. Kop has used his one amendment. Kop filed a First Amended Cross-Complaint while CSSD’s first demurrer to and motion to strike the Cross-Complaint was pending. Accordingly, the operative complaint is the first amended cross-complaint, and the Court will consider the merits of CSSD’s demurrer and motion to strike the first amended cross-complaint.

Relying on Code Civ. Proc. § 430.41, Kop argues that he has a right to three amendments as of right, and accordingly, his second amended cross-complaint is proper. Kop misconstrues Code Civ. Proc. § 430.41. Code Civ. Proc. Section¿430.41 (e)(1)¿provides that after¿three amendments, leave to amend should not be granted after the sustaining of a demurrer “absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action.” Section 430.41 limits the Court’s ability to grant leave to amend after sustaining a demurrer. It does not grant a litigant the right to three amendments as of right.

Turning to the merits of the demurrer, CSSD argues that Kop is seeking to challenge a family law judgment which belongs in the Family Division of the Superior Court, and to the extent he is seeking relief relating to other issues such as his state bar discipline and passport those are not properly alleged against CSSD. The Court agrees.

Kop must raise his challenge to the child support judgment in the Family Division of the Superior Court. To the extent Kop is challenging the accounting of the payments on the judgment, he had the right to a state administrative hearing, before a State hearing officer under Family Code §17901. If Kop had requested the State hearing and was dissatisfied, his remedy would have been an administrative writ pursuant to Code Civ. Proc. §1094.5. Under the Local Rules, an administrative writ would be assigned to the Writs and Receivers Department in the Stanley Mosk Courthouse.

To the extent Kop seeks to relitigate the State Bar discipline and disbarment proceedings against him, that is not a claim against CSSD. In any event, the California Supreme Court affirmed the State Bar’s decision, and this Court has no authority to review a decision made by the California Supreme Court.

Kop also complains about his passport. This is not a claim against the CSSD. It would be a federal matter. Kop’s challenges are the subject of the federal case entitled, In the Matter of Steven Karlton Wen-Hao Kop, Case No. CV1180227MISC, decided in the Northern District of California. The Court cannot reverse decisions of a federal court.

Kop argues that he is not seeking to challenge the validity of the child support judgment but is instead asserting a right of set off. But Kop cites no supporting authority that a defense of set off is not a challenge to the child support judgment, which properly belongs to the Family Division of the Superior Court. The amount of the setoff and whether setoff based on obligations unrelated to child support is even allowed are questions properly resolved by the Family Division.

Kop also argues that CSSD has submitted to the jurisdiction of this Court by filing a cross-complaint and is therefore estopped from arguing that this matter belongs to the Family Division of the Superior Court. But CSSD’s cross-complaint relates to how the interpleaded funds should be applied and is not an attempt to re-litigate the child support judgment. Accordingly, there is no estoppel.

Next, CSSD argues that the child support judgment is final, and the FAC is barred by res judicata and collateral estoppel. Kop does not address this argument, and therefore, concedes it.(See Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328, 1345, fn. 16 (failure to address point is “equivalent to a concession”); see also Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal. App. 4th 507, 529 (failure to challenge a contention in a brief results in the concession of that argument); Stichring Pensioenfonds ABP v. Countrywide Fin. (C.D. Cal. 2011) 802 F.Supp.2d 1125, 1132 (“[I]n most circumstances, failure to respond in an opposition brief to an argument put forward in an opening brief constitutes waiver or abandonment in regard to the uncontested issue.”).)

CSSD next argues that Kop’s claims are barred by the six month deadline in Code Civ. Proc. §473. Again, Kop does not address this argument, and therefore, concedes it. (Id.)

In sum, the Court concludes that Kop’s claims against CSSD seek to relitigate a family law judgment, which must be decided in the Family Division of the Superior Court. In any event, Kop concedes the FAC is barred by res judicata and collateral estoppel and is also time-barred pursuant to Code Civ. Proc. §473. Accordingly, the Court sustains CSSD’s demurrer. The Court does so without leave to amend as Kop has not met his burden to show that the FAC may be amended successfully.

CSSD moves to strike Kop’s prayer for attorneys’ fees as there is no statutory or contractual basis for the claim. The Court agrees.

Attorneys’ fees are only recoverable when authorized by contract, statute or law. (Code Civ. Proc. §1033.5(a)(10)(A), (B), (C).) The FAC has not identified any contract, statute or law that would entitle Kop to attorneys’ fees.