Case Number: BC534734    Hearing Date: November 07, 2014    Dept: 32
CASE NAME: Jerome S. Cohan v. Nansee Lanning, et al.
CASE NO.: BC534734
HEARING DATE: 11/07/14
DEPARTMENT: 32
SUBJECT: Demurrer to Complaint
MOVING PARTY: Defendants Nansee and George Lanning
RESP. PARTY: Plaintiff Jerome S. Cohan

TENTATIVE RULING

Demurrer to Complaint

First Cause of Action (Money Judgment) SUSTAINED WITH 20 DAYS LEAVE TO AMEND.

Demurrer for Uncertainty SUSTAINED WITH 20 DAYS LEAVE TO AMEND.

ANALYSIS

Defendants’ Request for Judicial Notice

Exhibits 1-3 – GRANTED. The Court may take judicial notice of pleadings and a court order from the Bankruptcy Court. Although the documents are not certified, Plaintiff has not objected.

General Demurrer

Defendants demur to the sole cause of action for “money judgment” in the complaint for failure to state a claim and for uncertainty.

A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff’s ability to prove those allegations. (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal.App.4th 726, 732.) The court must treat as true all of the complaint’s material factual allegations, but not contentions, deductions or conclusions of fact or law. (Id. at 732-33.)

Defendants contend that the first cause of action is defective because Plaintiff never complied with Business and Professions Code § 6201 et seq. However, Business and Professions Code § 6200(b)(3) states that “this article shall not apply to any of the following: … (3) Disputes where the fee or cost to be paid by the client or on his or her behalf has been determined pursuant to statute or court order.” Defendants have not responded to this argument in a reply brief. Moreover, from the face of the complaint and bankruptcy court order, it appears that the amount of fees has been determined by a court. Thus, at least based on these allegations, Defendants do not have a right to arbitrate. (See § 6200(b)(3).)

Defendants contend that the bankruptcy court order at issue only imposes liability on the bankruptcy estate, not on the debtors. The bankruptcy court’s order states that “upon entry of this Order, Debtors are authorized and required to pay the fees and expenses allowed hereunder, as reduced by the Agreement.” (Compl. Exh. 1; RJN Exh. 3.) Defendants were the debtors in the bankruptcy. (RJN Exh. 1.) Accordingly, the order itself states that it can be enforced against Defendants.

Defendants contend that the order (dated August 10, 2012) is no longer valid pursuant to the 9th Circuit’s subsequent decision in In re Bellingham Ins. Agency, Inc. (9th Cir., December 2012) 702 F.3d 553. Defendants provide no analysis of the Bellingham decision or its application to the demurrer. (Dem. 11.) Also, Defendants fail to explain whether the Bellingham decision was intended to have retroactive effect on a previously entered judgment or order. Thus, this argument is unpersuasive.

Defendants contend that the judgment or order of a bankruptcy court is not enforceable in state court. Defendants cite to Federal Rules of Civil Procedure (FRCP) Rule 69(a) and federal case law, which provides that the process to enforce a judgment for the payment of money is by writ of execution unless the court otherwise orders. Plaintiff does not cite to any cases showing that a federal judgment can be enforced through a state court action for “money judgment.” In re Levander (9th Cir. 1999) 180 F.3d 1114, 1121) merely provides that a federal court may apply the law of the forum state pertaining to enforcement of judgments. However, that case concerns the authority of the federal court, not the state court, to enforce its own judgment.

Even if there is authority to bring an action in state court concerning a federal judgment, Plaintiff has not shown that he in fact obtained a judgment. While he alleges he obtained a judgment in bankruptcy court, the document attached to the complaint is an “order” rather than a “judgment” of the bankruptcy court. When the documents attached to a complaint conflict with the allegations of the complaint, the documents prevail.

The demurrer is SUSTAINED WITH LEAVE TO AMEND.

Demurrer For Uncertainty

Demurrers for uncertainty are strictly construed, because discovery can be used for clarification, and apply where defendants cannot reasonably determine what issues or claims are stated. (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) For the reasons stated above, the complaint is uncertain because it is unclear whether an actual money judgment has been entered by the bankruptcy court. The demurrer for uncertainty is SUSTAINED WITH LEAVE TO AMEND.