Judge: Stephen I. Goorvitch, Case: 22STCV08499, Date: 2023-03-30 Tentative Ruling

Case Number: 22STCV08499    Hearing Date: March 30, 2023    Dept: 39

Liat Zuker v. Joseph G. Lopez

Case No. 22STCV08499

Demurrer and Motion to Strike

The Court posts this tentative on March 28, 2023, in advance of the hearing on March 30, 2023.  The Court provides notice that if Plaintiff’s counsel does not appear, he shall waive the right to be heard and shall submit to this tentative order.  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 [Joseph G.] 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.)  Plaintiff alleges that the property at issue is a single-family home located at 5050 Stern Avenue in Sherman Oaks, California (the “Stern Property”).  (Complaint, ¶ 14.)  Plaintiff alleges that Shitrit transferred the property to Defendant Lopez, and this deed of trust was recorded on or about March 8, 2018, shortly after the marital dissolution action was filed.  (Complaint, ¶ 21 & Exh. C.)  Now, Defendant Joseph G. Lopez (“Defendant Lopez”) demurs to the complaint and moves 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.) 

The Court sustains the demurrer.  As an initial matter, Plaintiff filed no opposition to the demurrer.  A failure to oppose a motion may be deemed a consent to the granting of the motion, per California Rules of Court, rule 8.54(c).  Reaching the merits, the Court lacks jurisdiction over this dispute.  The Court previously found that the family court authorized the sale of the Stern Property on or about February 22, 2022.  (See Court’s Minute Order, dated July 27, 2022.)  Plaintiff concedes these facts in the complaint.  (See Complaint, ¶ 23.)  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 and the division of proceeds.  It matters not that Defendant Lopez is not a party to the martial dissolution case.  “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.  The family court can redress the alleged issue in its division of the proceeds of the sale of the Stern Property or the division of other marital assets.

Based upon the foregoing, the Court orders as follows:

1.         The Court sustains the demurrer by Defendant Joseph G. Lopez.

2.         The Court denies leave to amend, as no amendment would be successful.

3.         Counsel for Defendant Lopez shall provide notice and file proof of such with the Court.