Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. KC048192, R. Bruce Minto, Judge. Affirmed.
Alexander & Yong, Jeffrey S. Yong and John J. Aumer for Defendant and Appellant.
Law Offices of Alex L. Benedict & Associates, Alex L. Benedict and Jedediah N. Thurkettle for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant Jennifer Kwai-Yeng Hong (Hong) appeals from a judgment rendered in favor of plaintiff Ip Pak Chuen (Chuen) in the amount of $336,000, the value of Chuen’s interest in property sold by Hong, subject to a determination of the status of the property by the family law court. Hong contends that the trial court lacked jurisdiction over the property while the family law case was pending. We disagree and affirm the judgment.
Hong also purports to appeal from interlocutory orders denying motions to dismiss for lack of jurisdiction. These orders are not appealable. (Code Civ. Proc., § 904.1.)
FACTS AND PROCEDURAL BACKGROUND
Hong and Chuen were married to one another in 1996, and they separated in 1999. Hong filed a petition for dissolution of marriage on February 4, 2002. The petition listed as a community asset property located at 1982 Rio Bonito Drive in Rowland Heights. Hong obtained a judgment of dissolution of the marriage on June 27, 2002. There was no property divided and in denying a subsequent motion to set aside the judgment, the trial court referred to the judgment of dissolution as one of “status only,” even though the “status only” box was not checked on the judgment.
Chuen is identified in the dissolution proceedings as Patrick Tak Him Yip.
On October 7, 2004, Chuen filed a lawsuit against Hong. In the lawsuit, Chuen alleged that he was the “true owner” of the Rio Bonito property and that he was damaged by Hong’s fraud in the sale of the property. This lawsuit was dismissed by Chuen on March 27, 2006.
Chuen filed the instant action on April 17, 2006, alleging causes of action for slander of title, fraud, negligent misrepresentation, conversion, breach of written contract and breach of the covenant of good faith and fair dealing. Chuen’s claims arose from the sale of the Rio Bonito property. Chuen alleged that Hong did not list the Rio Bonito property as community property in the dissolution proceedings. Chuen sought, as compensatory damages, one-half of the proceeds from Hong’s sale of the property. He also sought punitive damages.
On April 18, 2007, at the final status conference, Chuen filed a notice of related case requesting the trial court to take notice that the family law case was related to the instant action. Chuen stated that the relationship between the two cases was a “[d]isputed property at center of both cases.”
On May 14, 2007, the family law court denied Chuen’s motion to set aside the dissolution judgment on the ground the judgment was one of “status only.” The court stated: “I don’t need to set aside the judgment, to unequivocally state that the court doesn’t lose jurisdiction by way of that status judgment over all the other issues, and today, I would deny the [Code of Civil Procedure section] 473 motion, but make an order that the court, in its inherent equitable powers, specifically reserve jurisdiction to make any other — all other orders with respect to community property obligations, confirmation of separate property, support, attorney fees.”
On May 14, 2007, Hong filed a motion to dismiss the instant case for lack of subject matter jurisdiction, asking the trial court to judicially notice the ruling of the family law court. The motion was denied, without prejudice, for lack of proper notice.
During the trial in the instant case, Hong testified that she had sold the Rio Bonito property and from the proceeds purchased real property in Temple City. She testified that she believed the Rio Bonito property was her property to sell.
On May 23, 2007, Hong filed another motion to dismiss the action for lack of jurisdiction. Chuen filed opposition to the motion. At the hearing on the motion, the trial court ruled that it would make a ruling as to those causes of action that were not exclusively within the province of the family law court.
On August 27, 2007, an order to show cause hearing was held in the family law case. The family law court instructed counsel for Hong to prepare a notice of ruling to be provided to the trial court that stated the family law court is (among other things) “confirming that this court has jurisdiction, and has a duty to ascertain and divide community property between these parties . . . .”
On October 5, 2007, the trial court issued its memorandum of decision on submitted matter. The court ruled that “[s]ubject to the findings of the Family Law Court, by virtue of taking title as joint tenants, the court finds each party owned a 50% interest in the Property by operation of law.” The trial court also found for Chuen on his claims for fraud, negligent misrepresentation and conversion. The trial court further ruled: “Consistent with this court’s and Department 82’s prior rulings, the court is not determining issues exclusively within the province of the Family Law Department. Inter alia, no determination is made regarding the separate or community nature of any property, the funds used to acquire property, the proceeds from sale or disposition of property, the date of separation, or the validity of the divorce decree, etc.”
On January 17, 2008, the trial court entered judgment. The judgment provided: “Subject to determination of the status of the properties by the Family Law Court, the court sets damages for the Plaintiff IP PAK CHUEN, at $336,000 . . . . [¶] . . . [¶] Subject to the jurisdiction of the Family Law Court, Defendant JENNIFER KWAI-YENG HONG is the involuntary trustee of a constructive trust, on Defendant JENNIFER KWAI-YENG HONG’s interest in the property located at 5332 Persimmon Avenue, Temple City, CA for the amount of the money judgment, for the benefit of Plaintiff IP PAK CHUEN.”
DISCUSSION
Jurisdiction of the Trial Court while the Family Law Case was Pending
Hong contends that the trial court did not have jurisdiction to determine Chuen’s complaint while the family law action was pending. We disagree.
Hong relies primarily on Askew v. Askew (1994) 22 Cal.App.4th 942 for the proposition that the trial court did not have jurisdiction in light of the pending family law action. In Askew, after the wife filed for dissolution, her husband filed a separate civil lawsuit against her for fraud and related causes of action, alleging that prior to their marriage, she falsely represented that she loved him and was sexually attracted to him, and in reliance on these representations, he married her and put parcels of real property into both their names as joint tenants. The husband also alleged that after the marriage, his wife represented that she would hold property to which she was put on title “‘for his benefit and that of his children.’” (Id. at pp. 947-948.) The court of appeal determined that the character of the wife’s interests in the property was to be decided by the family law court, and the trial court should have dismissed the civil complaint, since most of it was substantively for breach of promise and was barred by the “anti-heart-balm” statutes (Civ. Code, §§ 43.4, 43.5). (Askew, supra, at pp. 959, 962.)
We find that Askew is distinguishable. In Askew, the court held that “[a]fter a family law court acquires jurisdiction to divide community property in a dissolution action, no other department of a superior court may make an order adversely affecting that division.” (Askew v. Askew, supra, 22 Cal.App.4th at p. 961, citing In re Marriage of Schenck (1991) 228 Cal.App.3d 1474, 1483-1484.) In the instant case, the causes of action were not essentially based on a breach of promise but on tortious conduct occurring after the marriage. The trial court expressly stated that the findings of fraud and other tortious conduct, as well as the valuation of damages, were “[s]ubject to determination of the status of the properties by the Family Law Court . . . .” The trial court made it clear that it was not deciding issues exclusively within the province of the family law court: it made no determination regarding the separate or community nature of the property, the funds used to acquire property or any matters within the province of the family law court.
There was nothing in the trial court’s decision that would affect the jurisdiction of the family law court to characterize the nature of the property. The trial court simply found that Hong engaged in fraudulent conduct, resulting in damages to Chuen.
The case of In re Marriage of McNeill (1984) 160 Cal.App.3d 548, cited by Chuen, is controlling in the instant case. In McNeill, a husband brought an action to set aside a deed to his wife and a property settlement agreement, and he sought damages for his wife’s fraud, including punitive damages. The wife misrepresented many material facts to her husband during their marriage. She told him she was an attorney, had a master’s degree in accounting, and was suffering from cancer. She also led her husband to believe that there was an outstanding premarital judgment against her which could affect their assets. The wife represented to her husband that he needed to sign documents in order to convey real property originally held in trust. In reality, the documents transferred virtually all of the husband’s personal property, as well as the real property, to the wife. (Id. at p. 555.) The trial court awarded damages to the husband, and the wife appealed the judgment. (Id. at p. 556.)
McNeill was disapproved on another ground in In re Marriage of Fabian (1986) 41 Cal.3d 440, 451, fn. 13.)
On appeal, the court explained that while there was a strong policy to eliminate fault as a ground for dissolution and a consideration in the division of property, it did not preclude a husband and wife from pursuing appropriate civil remedies against each other. (In re Marriage of McNeill, supra, 160 Cal.App.3d at p. 556.) The court stated: “Here husband sought to void the deed and the agreement, asked for damages resulting from wife’s fraud, and sought exemplary damages. Neither the existence of the marital relationship nor the fact wife was contemporaneously seeking a dissolution prohibited husband from his requested relief. Husband could have tested the validity of the deed and agreement in the dissolution or by an independent action. (In re Marriage of Testa (1983) 149 Cal.App.3d 319 . . . .) But damages could not have been pleaded in the dissolution action; to be compensated for fraud, husband had to file a separate civil action.” (McNeill, supra, at p. 557.)
Similarly, here, Chuen could not have sought punitive damages or pursued a cause of action for fraud against Hong in family law court. There was no legal impediment to pursuing the civil lawsuit while the family law matter was pending. While in McNeill the husband’s civil action was consolidated with the wife’s action for dissolution of marriage, and here the two actions were not consolidated, we perceive no significance to this distinction. The notice of related case served the same purpose as the consolidation in McNeill: to ensure that the trial court in the civil lawsuit took no action that would interfere with the family law court’s judgment.
Hong’s argument that the trial court lacked jurisdiction is not persuasive. While there is some substance to the “putting the cart before the horse” argument submitted by Hong—that the family law case should be resolved first to determine the characterization of the property—we see no prohibition from the trial court ruling on the issues raised before it, subject to a later ruling by the family law court. The trial court was very clear in its ruling that the family law court still retains the ability to characterize the property within the marital estate.
The judgment is affirmed. Chuen is to recover his costs on appeal.
We concur: WOODS, Acting P. J., ZELON, J.