Judge: Gregory Keosian, Case: 23STCV11970, Date: 2023-08-28 Tentative Ruling
Case Number: 23STCV11970 Hearing Date: August 28, 2023 Dept: 61
Defendant
Carle Pierose’s Demurrer and Motion to Strike Portions of the Complaint is
SUSTAINED as to the second and third causes of action, with leave to amend, and
OVERRULED as to the first and fourth causes of action. The motion to strike is DENIED.
I.
DEMURRER
A demurrer should be sustained only where the defects appear
on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§
430.30, et seq.) In particular, as is
relevant here, a court should sustain a demurrer if a complaint does not allege
facts that are legally sufficient to constitute a cause of action. (See
id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) 39 Cal.3d 311:
“We treat the demurrer as admitting all material facts properly pleaded, but
not contentions, deductions or conclusions of fact or law. . . . Further, we
give the complaint a reasonable interpretation, reading it as a whole and its
parts in their context.” (Id. at
p. 318; see also Hahn. v. Mirda
(2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not
the evidence or other extrinsic matters. Therefore, it lies only where the
defects appear on the face of the pleading or are judicially noticed.
[Citation.]”)
“In determining whether the complaint is sufficient as
against the demurrer … if on consideration of all the facts stated it appears
the plaintiff is entitled to any relief at the hands of the court against the
defendants the complaint will be held good although the facts may not be
clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)
“A demurrer
for uncertainty is strictly construed, even where a complaint is in some
respects uncertain, because ambiguities can be clarified under modern discovery
procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612,
616.) Such demurrers “are disfavored,
and are granted only if the pleading is so incomprehensible that a defendant
cannot reasonably respond.” (Mahan v.
Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)
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. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p.
1081.) The demurrer also may be sustained without leave to amend where the
nature of the defects and previous unsuccessful attempts to plead render it
probable plaintiff cannot state a cause of action. (Krawitz v. Rusch
(1989) 209 Cal.App.3d 957, 967.)
Defendant Carle Pierose (Defendant) demurrer to the
Complaint of Plaintiff Brenna Pierose (Plaintiff) on the following grounds.
Defendant contends that the complaint is an attempt to litigate matters
properly tried in a pending dissolution action in civil litigation. (Demurrer
at pp. 5–7.) Defendant further argues that the family court proceeding has
exclusive concurrent jurisdiction over the matters alleged in Plaintiff’s
complaint. (Demurrer at pp. 7–8.) Defendant finally contends that the breach of
contract claims are uncertain and barred by the two-year statute of limitations
for oral contracts. (Demurrer at pp. 8–9.)
Although the present matter
concerns alleged torts and breaches of contract committed by one spouse upon
another, Defendant has not shown that this action usurps jurisdiction from the
ongoing marital dissolution proceeding. The cases that Defendant cites for
authority each involved attempts by parties to a marital dissolution action to
characterize as civil torts violations of the orders or agreements made within
the context of a dissolution proceeding. (See Burkle v. Burkle (2006)
144 Cal.App.4th 387 [ex-wife sued ex-husband for failing “to make
two interim monthly payments required under the terms of a stipulation and
order in the dissolution proceeding”]; Neal v. Superior Court (2001) 90
Cal.App.4th 22 [ex-husband sued ex-wife for breach of contract based
on “whether he paid the money that the family law judgment obligated him to
pay”]; d’Elia v. d’Elia (1997) 58 Cal.App.4th 415, 417–418
[holding that ex-wife could not launch civil lawsuit against ex-husband for
alleged fraud in formulation of marital settlement agreement].) Other decisions
have held that civil courts may not exercise jurisdiction over disputes
concerning property that is the subject of a pending dissolution proceeding. (See
McMilin v. Eare (2021) 70 Cal.App.5th 893 [“After a family law
court acquires jurisdiction to divide community property in a dissolution
action, no other department of the superior court may make an order adversely
affecting that division.”]; Askew v. Askew (1994) 22 Cal.App.4th 942,
961; Glade v. Glade (1995) 38 Cal.app.4th 1441 [holding that
family law court had priority of jurisdiction over action to foreclose on
community property residence].) Defendant here has identified no order from the
marital dissolution proceedings and no item of property subject to the family
law court’s jurisdiction that the present action involves.
Defendant argues that the source
of the fiduciary duty asserted here is Family Code § 1100, providing that
spouses are fiduciaries with respect to the management and control of community
assets and liabilities. (Demurrer at p. 6.) But the authority that Defendant
cites does not state that duties found in the Family Code are exclusively for
adjudication in dissolution proceedings; language in d’Elia v. d’Elia
stating that the would-be civil-plaintiff “wants the special benefits of
disclosure which come with being a spouse” were not made with respect to why
the civil court lacked jurisdiction, but were made in answer to that
plaintiff’s argument that denying her the opportunity to sue for securities
fraud based on her marital settlement agreement violated equal protection
principles. (d’Elia, supra, 58 Cal.App.4th at p. 432.)
Accordingly, the case is not improper for this reason.
Defendant further argues that this matter should be
dismissed because the dissolution proceeding has exclusive concurrent jurisdiction.
(Demurrer at pp. 7–8.) “Under the rule of exclusive concurrent jurisdiction, when two California
superior courts have concurrent jurisdiction over the subject matter and all
parties involved in litigation, the first to assume jurisdiction has exclusive
and continuing jurisdiction over the subject matter and all parties involved
until such time as all necessarily related matters have been resolved. The rule
is based upon the public policies of avoiding conflicts that might arise
between courts if they were free to make contradictory decisions or awards
relating to the same controversy, and preventing vexatious litigation and
multiplicity of suits.” (People ex rel. Garamendi v. American Autoplan, Inc.
(1993) 20 Cal.App.4th 760, 769–70.)
Defendant has not shown that exclusive concurrent
jurisdiction applies here. This is an action for damages resulting from breach
of fiduciary duty and contract. A court exercising original jurisdiction must
have “the power to litigate all the issues and grant all the relief to which
any of the parties might be entitled under the pleadings.” (Plant Insulation
Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 788.) Plaintiff here
seeks damages for breach of fiduciary duty and breach of contract, which cannot
be rendered in a dissolution action. (In re Marriage of McNeill (1984)
160 Cal.App.3d 548, 557 [“[D]amages could not have been pleaded in the
dissolution action; to be compensated for fraud, husband had to file a separate
civil action”], disapproved on other grounds in In re Marriage of
Fabian (1986) 41 Cal.3d 440.)
Defendant also argues that the second and third causes of
action for breach of oral contract and promissory estoppel are barred by the
two-year limitations period set out in Code of Civil Procedure § 339(1) for
obligations not founded on a writing. (Demurrer at pp. 8–9.) Defendant notes
that the last breach of any oral agreement is alleged to have occurred in
August 2020, more than two years before the filing of the complaint in May
2023. (Complaint ¶ 13.) Plaintiff counters that the contract at issue is
subject to continuing accrual for each year Defendant fails to pay his taxes as
agreed (Opposition at p. 8), but the Complaint does not allege continuing
breach, but that the last breaches occurred in 2019 and 2020. (Complaint ¶ 26.)
The demurrer is properly SUSTAINED as to the second and third causes of action,
with leave to amend.
II.
MOTION TO
STRIKE
Any
party, within the time allowed to respond to a pleading, may serve and file a
notice of motion to strike the whole or any part thereof. (Code Civ. Proc., §
435(b)(1)). The notice of motion to strike a portion of a pleading shall quote
in full the portions sought to be stricken except where the motion is to strike
an entire paragraph, cause of action, count or defense. (California Rules of
Court Rule 3.1322.)
The grounds for a motion to
strike shall appear on the face of the challenged pleading or form any matter
of which the court is required to take judicial notice. (Code Civ. Proc., §
437(a)). The court then may strike out any irrelevant, false, or improper
matter inserted in any pleading and strike out 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.) When the defect which
justifies striking a complaint is capable of cure, the court should allow leave
to amend. (Perlman v. Municipal Court
(1979) 99 Cal.App.3d 568, 575.)
Defendant moves to strike the
prayer for punitive damages. (Motion at pp. 6–7.)
Punitive damages are allowed in non-contract cases when a
defendant is guilty of “oppression, fraud, or malice . . . .” (Civ. Code §
3294.) The terms are defined as:
“Malice”
means conduct which is intended by the defendant to cause injury to the
plaintiff or despicable conduct which is carried on by the defendant with a
willful and conscious disregard of the rights or safety of others.
“Oppression”
means despicable conduct that subjects a person to cruel and unjust hardship in
conscious disregard of that person's rights.
“Fraud”
means an intentional misrepresentation, deceit, or concealment of a material
fact known to the defendant with the intention on the part of the defendant of
thereby depriving a person of property or legal rights or otherwise causing
injury.
(Civ. Code § 3294, subd. (c).)
Something more than the mere commission of a
tort is always required for punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Proof of
negligence, gross negligence, or recklessness is insufficient to warrant an
award of punitive damages. (Dawes v.
Sup.Ct. (Mardian) (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be
recovered in an action for negligence or other nonintentional torts if the
plaintiff pleads and proves that the defendant acted with the state of mind
described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. (2013) 220
Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious
disregard of Plaintiff’s rights, the conduct must be both despicable and
willful. (College Hospital v. Superior
Court (1994) 8 Cal.4th 794, 713 (“College
Hospital”).)
Defendant does not challenge Plaintiff’s
prayer for punitive damages on any grounds that the substantive basis for same
has not been alleged. Defendant does not challenge Plaintiff’s fraud cause of
action save upon the grounds that no cause of action in this case ought to have
been alleged outside the context of the dissolution proceeding. Fraud is a
basis for seeking punitive damage which Plaintiff has alleged here.
The motion is therefore DENIED.