Case Name: David Keeler, et al., v. Katherine Ngai-Pesic, et al.
Case Nos.: 2013-1-CV-252245 (consolidated with 6-13-CP-001284)

Respondent/Defendant Katherine Pesic’s Motion for Judgment on the Pleadings, filed on a Request for Order form, was initially filed in these two consolidated actions – but addresses and seeks the same relief in consolidated actions 2013-1-CV-252557, consolidated with 2013-1-CP-001295 (Joyce Chin, et al., v. Katherine Ngai-Pesic, et al.). The moving papers were timely filed and served on counsel of record for Petitioners/Plaintiffs in each of these actions, each of whom filed Opposition papers – Chin’s were filed timely filed on July 22; Keeler’s were untimely filed, on July 26. Moving party has filed two Reply Statements, each captioned with all four case numbers. A Reply that appears to address only the Opposition filed on behalf of Ms. Chin (asserting that Keeler “elected not to file timely responsive papers”) was filed on July 28. A second Reply addressing Keeler’s Opposition was filed on August 2.
The Court will disregard in this instance the untimely filings of both the Keeler Opposition and the second Reply, and reminds all counsel of the requirements of Code of Civil Procedure section 1005 – particularly the service requirements of §1005(c) for Opposition and Reply papers. As the issues have been fully briefed by all interested parties, and there is no apparent prejudice to any party, the Court has exercised its discretion under CCP §475 and has considered all papers filed.

The civil actions are primarily for breach of contract, consolidated with petitions to establish parental relationship. Currently before the Court is Defendant Katherine Ngai-Pesic’s “motion to dismiss” Katherine Pesic as an individual in the parentage actions; to dismiss both civil actions; to “seal courtroom and pleadings;” and to strike the jury request.

Plaintiff Keeler’s request for judicial notice of three documents: 1) A copy of the Spousal Property Order filed in case no. 1-12-PR-171707 on January 10, 2013; 2) A copy of the Complaint, filed August 30, 2013, and; 3) A copy of the Petition to Establish Parental Relationship in this action, filed September 5, 2013, is GRANTED pursuant to Evid. Code §452(d). The Court on its own motion has taken judicial notice of the comparable consolidated pleadings filed by Ms. Chin, as they are addressed as well in the pending motion.

Despite being titled a “motion to dismiss,” Defendant’s motion is brought under Code of Civil Procedure (“CCP”) §438, making it a motion for judgment on the pleadings (“JOP”). A JOP motion is the functional equivalent of a general demurrer made after the time to demur has expired and more than 30 days before trial. (See CCP §438.) Except as provided by the statute, the rules governing demurrers apply. A JOP motion may be brought on the same grounds as a general demurrer, i.e., that the pleading at issue fails to state facts sufficient to constitute a legally cognizable claim or defense. (See Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999; County of Orange v. Association of Orange County Deputy Sheriffs (2011) 192 Cal.App.4th 21, 32; Southern Calif. Edison Co. v. City of Victorville (2013) 217 Cal.App.4th 218, 227.) As with a demurrer the Court may not consider any extrinsic evidence. (See Smiley v. Citibank (South Dakota) N.A. (1995) 11 Cal.4th 138, 146 [“[T]he trial court generally confines itself to the complaint and accepts as true all material facts alleged therein… [and] may extend its consideration to matters that are subject to judicial notice.”]) Also, as with demurrers, leave to amend is typically granted if a failure to state sufficient facts is demonstrated.

Given these constraints, Defendant’s motion is DENIED in its entirety. Defendant’s argument that the entire civil action should be dismissed because she believes it seeks remedies exclusively available in family court is not well taken. The Complaints state claims which include: 1) breach of contract; 2) creditors’ claim, and; 3) Declaratory Relief, all of which may be heard in this Court. Defendant fails to present any arguments as to how they fail to state sufficient facts. A motion to strike under CCP §§435-437, if appropriate (not a general demurrer or its equivalent, a JOP motion) may be a proper mechanism to attack a purportedly improper pleading or remedy. Defendant’s argument that she should be dismissed as an individual defendant simply because she is not alleged to be a parent is also unpersuasive. The consolidated civil Complaints’ factual allegations are accepted as true for purposes of this motion, including the allegations that Defendant in her individual capacity has taken possession of Decedent’s assets, including that portion of those assets allegedly due to Plaintiff under the express agreement entered into by Decedent (alleged in both civil Complaints), and this is a sufficient basis for naming her as an individual defendant at the pleading stage.

Defendant’s request that Plaintiff’s request for a jury trial be stricken and that all pleadings and the courtroom be sealed are also denied as a JOP motion is not a proper vehicle for such requests. Furthermore, no authority has been presented for such requests. In this Court’s role of managing pretrial proceedings in all of the related and coordinated cases, the Court declines to exercise its discretion at this time to conduct hearings in closed court under Family Code §7643(a). It is premature to request a closed courtroom during trial of any of these related actions, and will be left to the discretion of the trial judge at the time of trial, if any, of the remaining disputed parentage issues (e.g., Milo and Maya Chen).

Regarding the request to seal pleadings, all pleadings filed in the two parentage cases, into which the two related civil cases have already been consolidated, are already filed and maintained confidentially under §7643. A request to file pleadings or documents under seal is not authorized by §7643, but may only be brought under California Rules of Court 2.550 and 2.551.

Regarding the request to strike the jury requests, this is also denied, again without any supporting authority in this context. Such a request is both premature and unnecessary at this time. Trial and jury management, and any bifurcation of trial(s) between jury and non-jury issues, are left at this time to the sound discretion of the eventual trial judge(s).