Judge Stephen I. Goorvitch, Case 22STCV08499 2022-07-27 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 22STCV08499, Date: 2022-07-27 Tentative Ruling

Case Number: 22STCV08499 Hearing Date: July 27, 2022 Dept: 39

Liat Zucker v. Joseph G. Lopez, et al.

Case No. 22STCV08499

Demurrer

Plaintiff Liat Zucker (“Plaintiff”) filed this action against Ronen Shitrit (“Shitrit”) and SoCal Home Remodeling, Inc. (“SoCal”) (collectively, “Defendants”), among others, asserting a case of action for fraud and seeking to set aside a fraudulent transfer, as well as a constructive trust and declaratory judgment. Plaintiff and Shitrit were married, and Plaintiff alleges that SoCal is owned and operated solely by Shitrit. Plaintiff alleges as follows:

This is a case of a husband deceiving his wife by taking title to the family home in his own name, and then systematically, though a scheme involving the co-defendants, depleting the equity from the home, causing the home to be sold, and keeping the proceeds for himself. After taking title to the family home as a single, unmarried man, Defendant Shitrit withdrew a $600,000.00 line of credit issued by [East-West Bank], and thereafter, caused a strawman, Defendant Lopez to record a fraudulent trust deed in the amount of $675,000, and then when the Court in the family law case ordered the sale of the home, caused the home to be purchased by a straw-buyer, Defendant Yahav. By this action, Plaintiff seeks to recover those portions of the stolen proceeds from the home, that she is entitled to as a matter of law.

(Complaint, ¶ 12.) Defendants demur to the complaint and move to strike the prayer for attorney’s fees.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) “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.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “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, supra, 147 Cal.App.4th at p. 747.) However, courts do not accept as true deductions, contentions, or conclusions of law or fact. (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.) The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty “because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)

Plaintiff filed for divorce on or about February 26, 2018, and the case proceeded before the family court as Case Number 18VEFL00319. Defendants ask the Court to take judicial notice of certain documents. The Court does so under the authority of Evidence Code section 452(d). In brief, the family case concerned the same property and allegations in the civil action. The family court held a hearing on February 22, 2022, and authorized the sale of the property. Specifically, the family court ruled:

The Court authorizes the sale of the real property located at 5050 Stern Avenue, Sherman Oaks, CA pursuant to the California Residential Purchase Agreement and Joint Escrow Instructions dated February 1, 2022 offered by Matan Yahav (buyer), for a total purchase price of $1,880,000 with a 6-month lease back option for the Petitioner at $1 per month . . . .

(Request for Judicial Notice, Exh. #8.) The parties stipulated, and the family court ordered, that the proceeds of the sale shall be held in trust pending further court order. (Id., Exh. #9.) Plaintiff concedes the relevant facts in her complaint.

The Court has no jurisdiction over this dispute between Plaintiff and her former spouse. A family law court has jurisdiction to characterize, value and divide community property, and no other department of the superior court may entertain proceedings or make any order affecting the family law court’s property division jurisdiction. (Askew v. Askew (1994) 22 Cal.App.4th 942, 961.) For this reason, a civil trial department cannot entertain a spouse’s fraud suit to impose constructive trust over the other spouse's interest in community property. (Id. at 962.) At heart, Plaintiff challenges the sale of the property ordered by the family court. As such, this Court has no jurisdiction over this matter as it relates to Shitrit.

Plaintiff attempts to circumvent this issue by arguing that she seeks damages for fraud, which are not available in the dissolution action. “Almost all events in family law litigation can be reframed as civil law actions if a litigant wants to be creative with various causes of action. It is therefore incumbent on courts to examine the substance of claims, not just their nominal headings.” (Neal v. Superior Court (2001) 90 Cal.App.4th 22, 25.) Plaintiff alleges that her fraud claim is based on Plaintiff’s “ownership interest and equitable interest in the [marital] property . . . .” (Complaint, ¶ 37.) Regardless of whether Plaintiff captions her claims as for fraud, her claims concern her interest in the material property. As such, they must be resolved in family court.

Plaintiff argues that SoCal is not a party to the marital dissolution case. However, Plaintiff alleges that SoCal received the funds from the sale of the marital home, and there is no dispute that SoCal is owned by Shitrit, who is a party to the family law case. Therefore, those allegations are squarely before the family court.

Based upon the foregoing, the Court orders as follows:

1. The Court sustains the demurrer filed by Ronen Shitrit (“Shitrit”) and SoCal Home Remodeling, Inc. (“SoCal”). The Court denies leave to amend, as no amendment would cure the legal defects. Therefore, both defendants are dismissed with prejudice.

2. The California Rules of Court, rule 3.110, requires the plaintiff to serve the summons and complaint, and to file the proof of service, within 60 days. Plaintiff has failed to do so. Therefore, the Court continues the case management conference to October 17, 2022, at 8:30 a.m. and sets an Order to Show Cause why the complaint against Defendant Jonathan G. Lopez should not be dismissed for lack of service, per rule 3.110, and lack of prosecution under Code of Civil Procedure sections 581 and 583. The OSC hearing shall be held on October 17, 2022, at 8:30 a.m. at the following location:

Stanley Mosk Courthouse

111 North Hill Street

Department #39 (Goorvitch, J.)

Los Angeles, California 90012

The parties may appear remotely or in-person. The parties may file a response on or before October 10, 2022, or may address the issues orally at the hearing. The Court provides notice that if Plaintiff’s counsel does not appear, absent good cause, the Court intends to dismiss the case against Jonathan G. Lopez.

3. Defendant Matan Yahav may notice any responsive motion for hearing on October 17, 2022, at 8:30 a.m.

4. Defendants’ counsel shall serve this order upon all parties. Plaintiff’s counsel shall provide notice of the case management conference to Defendant Jonathan G. Lopez upon service of the summons and complaint.