Opinion
G054423
12-27-2017
PARVIZ MONTAZER, Plaintiff and Appellant, v. PARVIN R. MONTAZER, Defendant and Respondent.
Parviz Montazer, in pro. per., for Plaintiff and Appellant. Parvin R. Montazer, in pro. per., for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2016-00850959) OPINION Appeal from a judgment of the Superior Court of Orange County, Frederick P. Aguirre, Judge. Affirmed. Parviz Montazer, in pro. per., for Plaintiff and Appellant. Parvin R. Montazer, in pro. per., for Defendant and Respondent.
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The trial court sustained a demurrer without leave to amend to the complaint filed by plaintiff and appellant, Parviz Montazer (husband), against defendant and respondent, Parvin R. Montazer (wife). The court ruled jurisdiction over the matter resided in the family court and the complaint failed to state a cause of action.
Husband argues the trial court had jurisdiction, the complaint stated a cause of action, and he should have been allowed to amend the pleading. He also claims the case should not have been dismissed because he had good cause for not attending the order to show cause (OSC) re dismissal.
We agree the court lacked jurisdiction and properly dismissed the action. Consequently we have no need to discuss any other arguments. We affirm.
FACTS AND PROCEDURAL HISTORY
This case has its roots in a dissolution action between the parties. Concurrently with the filing of this opinion we are filing an opinion in a related case, In re Marriage of Montazer (date, G054063 [nonpub. opn.]) (IRMO Montazer). IRMO Montazer sets out the background of the parties' dissolution action, including the marital termination agreement (MTA) that was incorporated into the dissolution judgment (Judgment) filed in 1999. We incorporate by reference the facts and procedural history in that opinion.
We have designated the parties husband and wife in this opinion for consistency and clarity.
As explained in IRMO Montazer in 2014 wife filed an OSC re contempt. In 2015 she filed a request for order re spousal support arrearages (RFO Spousal Support), and a request for order re child support (RFO Child Support). In 2015 husband filed a request for order to terminate spousal support (RFO Support Termination).
As part of the RFO Support Termination husband filed a declaration "in lieu of personal testimony." In the declaration he stated the MTA provided for unequal division of community property, with wife receiving four pieces of real property (Real Property), including three in Colorado (Colorado Property) while he received one. He also attached a copy of a letter he sent to wife's counsel while they were negotiating the MTA (Husband's Letter).
Referring to a provision in the MTA entitled "Equal Division," Husband's Letter stated the division of community property was not equal. Husband stated he would not sign the MTA if it included such a provision. He also stated he had purchased the Colorado Property "for the sole purpose of having the backup for when my kids reach the college age. I trust that is [wife's] intention also[;] however, if I sense any deviation from that goal I will reserve the right to open up this settlement case and request for equal division of everything."
Husband also attached a reply from wife's counsel (Fouste Letter) in which Fouste referred to a letter husband sent Fouste subsequent to Husband's Letter. Fouste stated he had revised a section of the MTA dealing with husband's company car. The Fouste Letter did not mention Husband's Letter.
The OSC re contempt and all three RFO's were tried together. The July 2016 Findings and Order After Hearing (FOAH) stated in part: "The court considered [husband's] evidence and argument that [Husband's Letter] modified the terms of the [MTA] filed with this court on September 21, 1999, the executory terms of which were incorporated into the Judgment . . . . The court found that [Husband's Letter] did not modify the terms of the Judgment and did not provide a legal basis for [husband's] claim that [wife] was responsible for the college education of the children."
In May 2016 husband filed this action against wife for "breach of contract, decla[ra]tory relief, monetary damages, restitutionary remedies, and coercive remedies." (Capitalization omitted.) The three-and-a-half-page complaint alleged wife "claims" to own the Real Property the parties had previously owned jointly. It further alleged husband and wife entered an agreement in September 1999 "that set conditions for transfer" of the Real Property. The complaint appears to allege the "agreement" consisted of Husband's Letter, the Fouste Letter, and the MTA, all attached to and incorporated by reference into the complaint.
Husband alleged the section of Husband's Letter dealing with equal division of community property set out conditions on which he agreed to transfer the Real Property. "The prime condition was for the [wife] to provide funding for the[] children's college education." The complaint pleaded wife acknowledged receipt of this condition by virtue of the Fouste Letter. It also alleged husband then signed the MTA and transferred the Real Property. According to the complaint, husband paid for the children's college education in the sum of not quite $268,000.
In the breach of contract cause of action husband sought "to reverse the unequal division" (bold & capitalization omitted) of the Real Property. In the alternative, he asked the court to transfer ownership of the Colorado Property to him. He also sought approximately $268,000 in damages "for his contribution to the education of the children."
Wife filed a demurrer to the complaint on the grounds the court had no jurisdiction over the breach of contract cause of action, there was another action pending, the complaint did not state sufficient facts to constitute a cause of action for breach of contract, declaratory relief, or restitution, and the breach of contract cause of action was uncertain.
In conjunction with the demurrer wife filed a request for judicial notice of the dissolution Judgment and the RFO Support Termination. Husband filed requests for judicial notice of his objections to the proposed FOAH and the FOAH. The court granted all requests.
The court sustained the demurrer without leave to amend on several grounds. First, it ruled it had no jurisdiction because jurisdiction rested in the family law court in connection with dissolution of the marriage and division of community property. Second, as to the breach of contract claim, it found the allegations were "ancillary to the division of community property addressed" in the Judgment. The MTA expressly reserved jurisdiction over matters such as those pending in the family law court.
The court also found the complaint failed to state sufficient facts to constitute a cause of action for breach of contract because neither the MTA nor Husband's Letter showed wife agreed to pay for the children's college education. As to declaratory relief, although it was listed in the caption, there were no allegations to support that cause of action. Moreover, because there was no viable breach of contract cause of action, there was no written contract on which to base a declaratory relief claim. Finally, the court sustained the demurrer to the cause of action for restitution. It is a remedy and not a cause of action, and there was no separate pleading.
The court scheduled an OSC re dismissal. On the date of the hearing of the OSC husband telephoned to ask for a continuance, representing he could not appear because he was in Las Vegas. He did not agree to appear through Court Call. The court dismissed the action with prejudice.
DISCUSSION
1. Introduction
We review a judgment after order sustaining a demurrer without leave to amend de novo. (Del Cerro Mobile Estates v. City of Placentia (2011) 197 Cal.App.4th 173, 178.) "'[W]e treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law'" (National Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated Services Group, Inc. (2009) 171 Cal.App.4th 35, 43) or speculative allegations (Rotolo v. San Jose Sports & Entertainment, LLC ( 2007) 151 Cal.App.4th 307, 318, disapproved on another ground in Verdugo v. Target Corp. (2014) 59 Cal.4th 312, 333, 334, fn. 15).
"Under the doctrine of truthful pleading, the courts 'will not close their eyes to situations where a complaint contains allegations of facts inconsistent with attached documents, or allegations contrary to fact which are judicially noticed.'" (Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal.App.4th 390, 400; see Brakke v. Economic Concepts, Inc. (2013) 213 Cal.App.4th 761, 767 ["[w]hile the 'allegations [of a complaint] must be accepted as true for purposes of demurer,' the 'facts appearing in exhibits attached to the complaint will also be accepted as true and, if contrary to the allegations in the pleading, will be given precedence'"].) 2. Jurisdiction
In sustaining the demurrer, the court ruled it had no jurisdiction over the case. Instead, jurisdiction resided in the family law court to dissolve the marriage and divide the parties' community property. We agree.
"After 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 (1994) 22 Cal.App.4th 942, 961 (Askew).) In Askew, after the wife filed a dissolution action, the husband filed a civil suit to impose a constructive trust on certain real property, alleging the wife had misrepresented her affection for him to induce him to transfer title to the property in both of their names. The court held the civil action improperly "usurped the power and obligation of the family law court to determine the character of the . . . properties. . . . Given that the family law court already had subject matter jurisdiction to divide the community property, the civil trial court had no jurisdiction to so act." (Id. at p. 962, italics omitted.) Thus, the civil action had to be dismissed because it "sought to preempt the family law court from determining issues it already had jurisdiction to determine" and which "were the province of the family law court in the first place." (Id. at p. 965.)
The discussion in Askew about anti-heart balm statutes does not vitiate the principle for which we cite the case. Moreover, while there are circumstances where "spouses can sue each other for torts after marriage" (Askew, supra, 22 Cal.App.4th at p. 946), they are limited and husband has not directed us to any case authorizing such an action here.
That the pleadings in the family law court here did not refer to a breach of contract claim is irrelevant. Likewise, the fact the family law court minute order terminating spousal support did not mention breach of contract has no significance.
Husband made the same claims in the family law court that are the subject of the complaint in this action, i.e., Husband's Letter created a contract whereby wife became obligated to pay for the children's college education. This was litigated in and rejected by the family law court, which found there was no such agreement. Without an agreement, wife could not be liable for breach. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821 [elements of breach of contract cause of action].)
Husband's breach of contract cause of action is merely a family law issue camouflaged as a civil claim. Almost any family law claim "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.) In Neal, the court ruled a demurrer to a civil law complaint should be sustained, stating, "In substance this case is a family law OSC with civil headings." (Id. at p. 26.) A "reframed" civil action is improper even if it is filed after the final judgment in the family law proceeding has been entered. (Burkle v. Burkle (2006) 144 Cal.App.4th 387, 396-397 [discussing cases].)
Husband's reliance on Neal, apparently for the proposition that unless the family law judgment specifically retained jurisdiction he had the right to file the civil action, is misplaced. This was an argument made by the party who filed the civil suit, and the court rejected it. (Neal v. Superior Court, supra, 890 Cal.App.4th at p. 26.)
Husband argues the family law court's jurisdiction had expired because the MTA stated it retained jurisdiction over the children's support only until they were emancipated. Husband is wrong.
The MTA stated: "We each acknowledge and agree that in addition to the jurisdiction specifically conferred by this [MTA], the court having jurisdiction over the dissolution of our marriage shall reserve and retain jurisdiction to: [¶] . . . [¶] . . . Supervise the overall enforcement of this [MTA]. [¶] . . . We further acknowledge and agree that the court having jurisdiction over the dissolution of our marriage shall reserve and retain jurisdiction to make such other and further orders as may be reasonable or necessary to give effect to the foregoing provisions. Any judgment of dissolution of marriage . . . shall include a reservation of jurisdiction as herein provided, and if any such judgment does not contain an express specific reservation as herein provided, such reservation shall be implied and may be made express upon the motion of either of us." The parties also acknowledged they were told and understood the court must reserve jurisdiction over spousal support for marriages lasting 10 or more years when a party requested it.
In a slightly different iteration of that argument, husband claims the family law court retained jurisdiction only over the dissolution. But he points to nothing in the Judgment to support this claim and, as shown above, the MTA, incorporated into the Judgment, is to the contrary.
Husband challenges the court's reliance on the Judgment when it ruled the complaint was ancillary to the community property division set out in the Judgment. He claims the court ignored the allegations of the complaint and should not have relied on the Judgment because it was not disclosed in the complaint. We disagree.
In ruling on a demurrer, the court may consider any matter which it may judicially notice. (Code Civ. Proc., § 430.30, subd. (a).) Judicial notice may be taken of records of any court of this state. (Evid. Code, § 452, subd. (d)(1).) The court properly took judicial notice of the Judgment.
Husband also complains the court should not have taken judicial notice of the RFO Support Termination because wife allegedly misrepresented its contents when she stated husband sought credits against spousal support for money he had paid for the children's education. She also stated husband argued Husband's Letter and the MTA and Judgment created an agreement requiring wife to pay the children's college expenses from the real property she was awarded in the Judgment. This is a fair summary of husband's position in the family law court. And contrary to husband's claim, the RFO Support Termination was relevant and properly considered by the court in this action.
We reject husband's argument that when the family law court ruled there was no contract requiring wife to pay for the children's college education, it "relieved itself from jurisdiction over the Breach of Contract." Husband is also incorrect when he states the FOAH did not mention wife's obligation to pay for the children's college expenses. Rather, the "court found [the Fouste Letter] did not modify the terms of the Judgment and did not provide a legal basis for [husband's] claim that [wife] was responsible for the college education of the children."
We are not persuaded by husband's claim the family law court had no jurisdiction because support of adult children in college is not covered in the Family Code. Husband's contention wife owes for the children's college education arises directly out of his claim wife promised in the MTA to pay for their education, an issue over which the family law court does have jurisdiction.
Husband's assertion wife's lawyer in the family law matter breached a duty to "introduce" this action in that case pursuant to California Rules of Court, rule 3.300, which deals with related cases, does not provide a ground for reversing the judgment of dismissal here. Husband had a coequal duty to do so. (Id., rule 3.300(b), (f).) More importantly, husband had a duty to file a notice of related case, i.e., the action in the family law court, in this action. (Ibid.)
Finally, we reject husband's argument there was no discovery or "pre-trial due process" regarding this issue in the family law court. Husband points to nothing in the record showing he was denied the opportunity to conduct discovery. We are unclear as to what husband means by "pre-trial due process," and the claim fails for lack of citation to the record or reasoned legal argument. (Cal. Rules of Court, rule 8.204(a)(1)(B); Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.) 3. Leave to Amend
In conclusory fashion husband argues he should have been given leave to amend his pleadings. To be granted leave to amend a husband must show there is a "'reasonable possibility'" he can do so. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) "'To satisfy that burden on appeal, a plaintiff "must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading." [Citation.] . . . The plaintiff must clearly and specifically set forth the "applicable substantive law" [citation] and the legal basis for amendment, i.e., the elements of the cause of action and authority for it. Further, the plaintiff must set forth factual allegations that sufficiently state all required elements of that cause of action. [Citations.] Allegations must be factual and specific, not vague or conclusionary. [Citation.]'" (Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1491.)
Husband failed to make the requisite showing. It is not merely a mislabeling of causes of action that made the complaint defective. Nor did the court require husband to produce evidence. Because the complaint and judicially noticed evidence show the court does not have jurisdiction to litigate the breach of contract claim, to merit leave to amend husband is required to set out facts he could plead that would correct the deficiency. He has not and we do not see any way he could. 4. Dismissal
Husband claims the case should not have been dismissed because he had a good reason for not appearing at the OSC re dismissal. But the case was not dismissed due to husband's failure to appear. The demurrer had been sustained without leave to amend. There was no operative pleading and thus no case to be litigated. Dismissal was proper for that reason alone. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967 [dismissal must be affirmed if demurrer properly sustained without leave to amend].)
Husband appears to claim that by sustaining the demurrer the court vacated jurisdiction. On that basis, he argues, it cannot dismiss the action with prejudice. But the court did not lose jurisdiction when it sustained the demurrer and it had the power to dismiss it. (See Gogri v. Jack in the Box Inc. (2008) 166 Cal.App.4th 255, 261.)
DISPOSITION
The judgment is affirmed. Wife is entitled to costs on appeal.
THOMPSON, J. WE CONCUR: FYBEL, ACTING P. J. IKOLA, J.