Judge: Kevin C. Brazile, Case: 21STCV24395, Date: 2022-08-26 Tentative Ruling

Hearing Date: August 26, 2022

Case Name: Ma v. Vista Del Mar Child and Family Services, et al.

Case No.: 18STCV07962

Matter: Demurrer; Motion to Strike

Moving Party: Defendant Vista Del Mar Family and Child Services

Responding Party: Plaintiff Dan Ma

Notice: OK

Ruling: The Demurrer is sustained as to the fourth cause of action, but is 

overruled as to the fifth cause of action.  The Court grants twenty days leave to amend. 

The Motion to Strike is granted in part, without leave to amend.

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

On July 20, 2020, Plaintiff Dan Ma filed the operative Third Amended Complaint (“TAC”) against Defendant Vista Del Mar Child and Family Services for (1) fraudulent inducement, (2) intentional misrepresentation, (3) negligent misrepresentation, (4) breach of written contract, and (5) breach of oral contract.  

The allegations of the TAC are as follows. Plaintiff gave her child up for adoption through Defendant, an adoption agency.  Plaintiff signed a relinquishment agreement as to her child.  Plaintiff could not speak English and was not shown an English translation of the agreement. She also had a difficult time understanding the formal Mandarin agreement that was provided to her.  However, Plaintiff was told by the Defendant's interpreter that she had a 30-day period to cancel the agreement.  This was a fraudulent representation.  Within 30 days of signing the relinquishment agreement, Plaintiff sought to rescind the agreement and obtain her child.  Defendant refused to return Plaintiff’s child because Defendant was motivated by a substantial payment from the adoptive parents.  

1. Demurrer

Defendant Vista Del Mar Child and Family Services demurs to the fourth and fifth causes of action for failure to state sufficient facts.  Defendant argues that Plaintiff’s contract claims fail because (1) “[t]he law of adoptions is exclusively statutory” (In re Michael R. (2006) 137 Cal.App.4th 126, 136), and (2) even if it weren’t, Plaintiff has attached the written relinquishment agreement, which shows that there was no general 30-day cancellation period, but rather Plaintiff could reobtain her child within 30 days only if (a) the child was not placed within the selected home or (b) the child was removed from the selected home prior to the adoption being finalized, neither of which happened.  

When considering demurrers, courts read the allegations liberally and in context, and “treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)  “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. The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  (Hahn v. Mirda¿(2007) 147 Cal.App.4th 740, 747.)  It is error “to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.”  (Aubry v. Tri-City Hospital Dist.¿(1992) 2 Cal.4th 962, 967.)

Defendant has failed to establish its first point that there can be no contract claim because adoption is a creature of statute.  Indeed, there are cases stating that a relinquishment agreement relating to a child is a “contract”.  (Tyler v. Children's Home Soc'y (1994) 29 Cal.App.4th 511, 529; In re Cheryl E. (1984) 161 Cal.App.3d 587, 603.)  Defendant argues that these cases only provide for an equitable claim to rescind a relinquishment agreement.  However, no such restriction is indicated by these cases.  As this argument was the only basis for the attack on Plaintiff’s fifth cause of action, the Demurrer is overruled as to this claim.

Defendant’s second argument has some merit in that the English translation of the relinquishment agreement—which Plaintiff states “was translated by a California Court certified translator Catherine Shu who certified that such translation is a true, accurate and complete version of the Chinese Relinquishment document” (Opposition at p. 11)—does not provide for a 30-day cancellation period, but rather states, “If the said child is not placed in the home of the above-mentioned named person(s), or is removed from the home of the named person(s) before the adoption procedure is completed, the above-mentioned adoption agency should notify me. I can withdraw this Relinquishment Application within 30 days of the above-mentioned notification and will not take any action or select another family for the adoption of the said child. If I do not withdraw the relinquishment application within this 30-day duration, the above-mentioned adoption agency can select a family to adopt the child.”  

Plaintiff’s Opposition is somewhat confusing on the issue, but, at bottom, it is not apparent that either the English or Mandarin versions of the written relinquishment agreement provided for a 30-day cancellation period.  The TAC does not apparently allege that the written Mandarin agreement was substantively different from the English translation.  Thus, the legal basis for the written breach of contract claim is not clear to the Court. 

In sum, the Demurrer is sustained as to the fourth cause of action, but is overruled as to the fifth cause of action.  The Court grants twenty days leave to amend.  The Requests for Judicial Notice are granted.

2. Motion to Strike

Defendant seeks to strike paragraphs 51-53, 56, 59, 61, 62, 65, 66, 71 and 73 of the TAC.

The Motion to Strike is granted only as to the allegations/prayer seeking for the Court to rescind the relinquishment agreement.  Leave to amend is denied.  This is because Plaintiff filed a petition to nullify the adoption in juvenile court and the nullification request was apparently rejected.  There would seemingly be no reason to rescind the relinquishment agreement if the adoption was not nullified by the juvenile court.  Plaintiff failed to submit any supplemental briefing as to her contentions on this issue given the juvenile court’s recent ruling.  The Motion to Strike is otherwise denied.

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.