Case Name: JOYCE CHIN v. KATHERINE PESIC
Case No.: 2013-1-CV-252557

This matter is part of several consolidated actions involving claims against the estate of Ivan Pesic (“Decedent”), who died on October 12, 2012. Currently before the Court is a motion for summary adjudication (“MSA”) brought by Defendant/Respondent Katherine Pesic (“Defendant”), individually and in her capacity as administrator of Decedent’s estate. Defendant specifically seeks “summary adjudication as to Milo and Maya Chen only on Joyce Chin’s First Amended Complaint in Case Number 1-13-CV-252557 . . .” (Notice of Motion at 1: 27-28.)

Case no. 2013-1-CV-252557 is brought by Plaintiff/Petitioner Joyce Chin (“Plaintiff”) individually and as guardian ad litem for three of Decedent’s biological children, Marco Chen, Maya Chen and Milo Chen. The operative First Amended Complaint (“FAC”) filed October 16, 2013 states claims for 1) “Determination of Paternity pursuant to Uniform Parentage Act”; 2) “Determination of Child Support pursuant to statute”; 3) “Declaratory Relief and Enforcement of Written Agreement,” (based on Decedent’s alleged execution of a written agreement to support his children born of IVF); 4) “Declaratory Relief re: Child Support pursuant to Oral Contract,” (based on an alleged oral promise by Decedent), and; 5) Breach of Contract (based on a series of written agreements between Decedent and Joyce Chin in which Decedent agreed that any children born from the IVF procedures they participated in would be considered his legal children and supported as such, Family Code § 7614).

Requests for Judicial Notice
A precondition to judicial notice in either its permissive or mandatory form is that the matter to be noticed be relevant to the material issue before the Court. (Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307, citing People v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422 fn. 2.)

Both sides have submitted requests for judicial notice (“RJN”) with their papers. In support of her MSA Defendant has submitted a request for the Court to take judicial notice of 7 documents (defense exhibits 23-25, 27 and 30-32) and 2 “facts” pursuant to “Evidence Code section 452 and 453.” (RJN at 1:22.) No more specific basis for notice of the purported facts is provided. Notice of the seven documents is GRANTED pursuant to Evidence Code § 452(d). Only the Spousal Property Order and Letters for Administration (defense exhibits 24-25) can be noticed as to the truth of their contents as court orders. The other five documents can only be noticed as to their existence and filing dates. While neither of the “facts” are supported by the documents submitted for notice, as Plaintiff does not oppose the request it is GRANTED as to both pursuant to Evidence Code § 452(h).

With her opposition, Plaintiff has submitted a request for the Court to take judicial notice of three documents (exhibits K, U & V to her Index of Evidence) “pursuant to Evidence Code §§451 and 452,” (RJN at 1:26). Plaintiff does not provide any more specific ground for the request. Notice of all three documents is GRANTED pursuant to Evidence Code §452(d), with only the 2013 and 2014 court orders for genetic testing to take place (exhibits U and V) noticed as to their contents.

Motion for Summary Adjudication
The targeted pleading, here Plaintiff’s FAC, limits the issues presented for a motion for summary judgment or adjudication, and such a motion may not be granted or denied based on an issue not raised by the targeted pleading. (See Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73 [“the pleadings determine the scope of relevant issues on a summary judgment motion.”].) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (See CCP §437c(f)(1); McClasky v. California State Auto. Ass’n (2010) 189 Cal.App.4th 947, 975 [“If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered.”]; Palm Spring Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 288.) Summary adjudication of general “issues” or of facts is not permitted. (See Raghavan v. The Boeing Company (2005) 133 Cal.App.4th 1120, 1136.) A summary adjudication order is not appealable.

The moving party’s declarations and evidence will be strictly construed in determining whether they negate or disprove an essential element of a plaintiff’s claim “in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (or opposing party’s) favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64, parentheses added.) While the same standards of admissibility govern both, the opposition declarations are liberally construed while the moving party’s evidence is strictly scrutinized. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) The evidence must be liberally construed in support of the opposing party, resolving any doubts in favor of that party. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) The moving party may generally not rely on additional evidence filed with its Reply papers. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.)

“A defendant seeking summary judgment [or adjudication] must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted, brackets added.)

Defendant seeks summary adjudication of 19 separate “issues.” (See Defendant’s Notice of Motion.) As an initial matter Defendant’s issue no. 1 (“[Defendant] is entitled to move for summary adjudication as to the First, Second, and Fourth Causes of Action as to Milo and Maya Chen only because . . . they are actually independent claims that arise out of distinct allegations . . .”) is not itself a proper subject for adjudication (Defendant is effectively asking the Court to summarily adjudicate whether she may move for summary adjudication in a certain manner) and the Court will not rule on it. It is not an issue but a legal assertion; that Defendant may seek “partial” summary adjudication under Lilienthal & Fowler v. Super. Ct. (1993) 12 Cal.App.4th 1848 (Lilienthal), where the court allowed summary adjudication of one of two unrelated acts of legal malpractice pled as a single cause of action.

This validity of this approach has been frequently questioned and Code of Civil Procedure (“CCP”) §437c(f) was subsequently amended to expressly state that a motion for summary adjudication shall be granted only if it would completely dispose of a cause of action. (See Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092, 1095, fn. 2 [“We question whether Lilienthal properly construed subdivision (f)(1) of section 437c . . . As subsequently amended, subdivision (f)(1) now provides that a ‘motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.’”] Emphasis in original.) Where Lilienthal’s conceptual approach has survived, it has been limited to situations where separate and distinct wrongful acts affecting different “primary rights” are combined into a single cause of action or where several causes of action allege a violation of only one “primary right” while seeking different remedies. (See Hindin v. Rust (2004) 118 Cal.App.4th 1247, 1257-1258.) CCP §437c(t) now provides the method by which a party may seek summary adjudication of only a part of a cause of action or issue of duty. As Plaintiff does not oppose the attempt at partial summary adjudication of the FAC’s claims as alleged on behalf of Milo and Maya Chen only the Court will allow the motion to proceed.

Defendant makes two primary arguments in support of the remaining issues (2-19). The first is that Probate Code § 249.5 effectively provides Defendant a complete defense, and bars all of the FAC’s claims made under the Family Code. The second is that, even if Probate Code § 249.5 does not control, the documents Plaintiff relies on to support the FAC’s contract-based claims are not enforceable contracts.

Defendant’s first argument is a dispute over statutory interpretation rather than disputed material facts. Statutory interpretation is a question of law for the Court. (See Burroughs v. Precision Airmotive Corp. (2000) 78 Cal.App.4th 681, 688 [“The proper interpretation of a statute is a question of law, subject to our independent review, as is the application of a statute to undisputed facts.”].) “[T]he statutory language is generally the most reliable indicator of legislative intent and, as a result, the court must first examine the words themselves, giving them their usual and ordinary meaning and construing them in context. Every statute should be construed with reference to the whole system of law of which it is a part, so that all may be harmonized and have effect. Where . . . two codes are to be construed, they must be regarded as blending into each other and forming a single statute. Accordingly, they must be read together and so construed as to give effect, when possible, to all the provisions thereof.” (See Mejia v. Reed (2008) 31 Cal.4th 657, 663, internal citations and quotations omitted.) As none of the statutes at issue here are ambiguous it is not necessary to consider legislative history material. “Preliminarily we note that resort to legislative history is appropriate only where statutory language is ambiguous. . . . If there is no ambiguity in the language, we presume the Legislature meant what it said, and the plain meaning of the statute governs.” (Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 29.)

Plaintiff has failed to meet her initial burden to establish that Probate Code §249.5 provides a complete defense to the FAC’s claims as alleged by Milo and Maya. Contrary to Defendant’s argument, the California Court decisions it cites do not hold that any paternity claim against a decedent or claim to enforce a child support contract allegedly entered into by a decedent against the estate must comply with §§ 249.5 and 249.7. The express terms of § 249.5 (stating that it applies “for purposes of determining rights to property to be distributed upon the death of a decedent”) and of § 249.7 (stating that it bars claims “based on wrongful distribution,” where “written notice has not been given in a timely manner pursuant to Section 249.5 to the person making that distribution”) make clear that they apply to an action for distribution of estate assets brought by a posthumously conceived and born child who seeks to be identified as a legal heir with a right to inherit estate assets. The FAC cannot be reasonably interpreted as making any such claim on behalf of Maya and Milo Chen and Defendant, having chosen to specifically target the FAC with this motion, is bound by what it actually alleges. The FAC does not allege or request that the children should be deemed heirs entitled to participate in the distribution of the estate or challenge actions by the administrator. Rather the FAC is attempting to enforce child support agreements allegedly entered into by Decedent against his Estate. Summary judgment or adjudication cannot be granted or denied on issues not raised by the targeted pleading.

Defendant’s broad interpretation of Probate Code § 249.5 ignores the limiting language in both that section and § 249.7 and would nullify the language in Family Code § 7630(f) (stating that a party to an assisted reproduction agreement can bring a claim to establish a parent-child relationship “at any time”) whenever a paternity action involves a deceased parent. This interpretation also conflicts with the general rule, codified in CCP § 352, that the limitations period for any claim belonging to a minor is tolled until they reach the age of majority. Plaintiff’s theory that Family Code § 7630(f) applies here is in harmony with CCP § 352 and does not conflict with the plain language of Probate Code §§ 249.5 and 249.7 limiting their application to distribution actions. Furthermore, Family Code § 7630, read together with the language in Family Code § 7620 (c)(4) stating that an “action under this part,” (Part 3 of the Family Code, the Uniform Parentage Act as codified in California) to determine parentage can, if the parent is deceased, be bought in “the county in which proceedings for probate of the estate of the parent of the child have been or could have been commenced,” indicates that the Family Code does contemplate and allow for the filing of paternity actions involving deceased parents. Such actions can be filed “at any time” under Family Code § 7630(f). This interpretation harmonizes the various code sections.

Because Defendant has not shown that Probate Code §249.5 provides a complete defense to the claims alleged in the FAC on behalf of Milo and Mya Chen the MSA is DENIED as to issues 2, 3, 8, 9, 11, 14 and 16 for failure to meet the initial burden as all of them expressly depend upon the assertion that Plaintiff had to satisfy Probate Code §249.5 in order to bring any of the claims alleged in the FAC. Adjudication of issues 4, 7 and 10 is also DENIED for failure to meet the initial burden as they each do not wholly dispose of the targeted claims even as alleged only on behalf of Milo and Maya Chen and Defendant has not shown that the Family Code does not permit a posthumous action to determine parentage.

What remains for consideration are the contract-based issues, nos. 5, 6, 12, 13, 15, and 17-19 asserting that various statements and documents Plaintiff relies on are not enforceable reproduction agreements establishing Decedent’s intent to parent posthumously conceived children. As Defendant has chosen to focus almost entirely on the Sept. 24, 2012 IVF informed consent agreement and also chosen not to contest the authenticity of Decedent’s signature on that document for purposes of the MSA (see Defendant’s memorandum of points and authorities at p. 17, fn. 7), this issue also for the most part presents a question of law for the Court rather than a dispute over material facts. Generally, “It is . . . solely a judicial function to interpret a written instrument unless the interpretation turns on the credibility of extrinsic evidence.” (Consolidated Theatres, Inc. v. Theatrical Stage Employees Union (1968) 69 Cal.2d 713, 724.)

In analyzing the September 24, 2012 Agreement (submitted as Defense Exhibit 15) the Court applies general rules of contract interpretation. Civil Code section 1636 states, “A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.” Civil Code section 1638 states, “The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity.” Civil Code section 1639 states, in pertinent part, “When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible.” Civil Code section 1644 states, “The words of a contract are to be understood in their ordinary and popular sense, rather than according to their strict legal meaning; unless used by the parties in a technical sense, or unless a special meaning is given to them by usage, in which case the latter must be followed.” “Under statutory rules of contract interpretation, the mutual intention of the parties at the time the contract is formed governs interpretation. Such intent is to be inferred, if possible, solely from the written provisions of the contract. The ‘clear and explicit’ meaning of these provisions, interpreted in their ‘ordinary and popular sense,’ unless ‘used by the parties in a technical sense or a special meaning is given to them by usage’, controls judicial interpretation. Thus, if the meaning a layperson would ascribe to contract language is not ambiguous, we apply that meaning.” (Santisas v. Goodin (1998) 17 Cal.4th 599, 608, internal citations omitted.)

The September 24, 2012 Agreements states that the parties have been advised of the risks and possibilities of IVF (including the possibility of a pregnancy with more than one fetus, as eventually occurred) and states in pertinent part in paragraph 4 that “we have made the decision to use fresh embryos, and possibly frozen embryos, for transfer purposes. Each of us consents to and accepts the Medical Procedure as our own act, and we acknowledge our obligation, and agree to, care for, support, and otherwise treat a child born as a result of this Medical Procedure in all respects as if it were our natural child.” (Emphasis added.) The document further states in paragraph 8 that “[w]e, and each of us, acknowledge our obligation to care for and support and educate and otherwise treat and consider any child born as the result of such embryo transfer in all respects as though it were our natural child. Neither of us shall ever allege in any proceeding that the child or children, is other than legitimate, and the Male Partner and Female Partner acknowledge that the child shall be the lawful child of both the Female Partner and Male Partner, and that neither of them shall assert a contrary position in any subsequent proceeding, except in the case of any negligent acts or negligent omissions, or willful misconduct, of the physicians, staff, or other employees of the ZFC Center, which is the proximate cause of the transfer of an embryo which is not a result of the in vitro fertilization of the ova donated by the Donor and the sperm of the Male Partner.” (Emphasis added.)

As an initial matter, Defendant’s argument that the “consultation” with Decedent over the number of embryos to be implanted referenced in the Sept. 24, 2012 agreement was an unfulfilled condition precedent that renders the Agreement ineffective is unpersuasive. “A conditional obligation is one in which ‘the rights or duties of any party thereto depend upon the occurrence of an uncertain event.’” (JMR Construction Corp. v. Environmental Assessment and Remediation Management, Inc. (2015) 243 Cal.App.4th 571, 593, citing Civil Code, § 1434.) “[P]arties may expressly agree that a right or duty is conditional upon the occurrence or nonoccurrence of an act or event.” (Ibid., citations omitted.) “[A] condition precedent is either an act of a party that must be performed or an uncertain event that must happen before the contractual right accrues or the contractual duty arises.” (Ibid. citations omitted, emphasis added; see also Civil Code, § 1436.) Whether a condition precedent exists generally depends on the intent of the parties as determined from the words used in the contract. (Id. at pp. 593-594.) Conditions precedent are disfavored by the law and are to be strictly construed against the party seeking to avail itself of one. (Id. at p. 594, emphasis added.) A term of an agreement should not be construed as a condition precedent unless it is evident from clear, unambiguous language in the contract. (Ibid, emphasis added.)” By this standard, the mention of a further consultation as to the number of embryos to be implanted made in the Sept. 24, 2012 Informed Consent Agreement cannot be reasonably construed as either an “act of a party” or an “uncertain event” that had to occur before Plaintiff and Decedent’s joint pledge to treat the “child or children” resulting from the procedure as their legitimate, natural children would become effective.

Defendant has failed to meet her initial burden to demonstrate that the written Sept. 24, 2012 Agreement is too indefinite to be enforceable. “‘In considering expressions of agreement, the court must not hold the parties to some impossible, or ideal, or unusual standard. It must take language as it is and people as they are. All agreements have some degree of indefiniteness and some degree of uncertainty.’ Moreover, ‘[t]he law leans against the destruction of contracts because of uncertainty and favors an interpretation which will carry into effect the reasonable intention of the parties if it can be ascertained.’” (Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 777, internal citations omitted.) Here, the language in the Sept. 24, 2012 Agreement, given its “clear and explicit” meaning interpreted in its “ordinary and popular” sense, is sufficiently definite to establish Decedent’s express intention to “to care for and support and educate and otherwise treat and consider any child born as the result of such embryo transfer in all respects as though it were our natural child.” Decedent’s pledge to support any resulting children as his own would then be a contractual obligation that passed on to his estate pursuant to Probate Code § 13550. The document also makes clear that Decedent and Plaintiff had been told of, and accepted, the possibility that the procedure might result in twins, triplets, etc., so the fact that the Agreement does not specify the number of children to be supported is immaterial. The fact that the Agreement does not specify how long support is to be provided also does not render it unenforceable. Nothing in the Agreement suggests that the promised support would continue to be provided once the “child or children” reach legal adulthood. If the parties could not agree on precisely when that occurred, Family Code § 3901 provides a readily available and useful definition. Accordingly summary adjudication of issues 5, 6, 12, 13 and 17-19 is DENIED.

Finally, Defendant has also failed to meet her initial burden on Issue 15 to demonstrate that the oral child support agreement alleged in the FAC’s fourth cause of action for Declaratory Relief is “not valid and enforceable.” Defendant’s argument on this issue consists of little more than the (incorrect) assertion that the claim as pled in the FAC does not allege the elements of a breach of oral contract. More importantly “[w]hen seeking summary judgment on a claim for declaratory relief, the defendant must show that the plaintiff is not entitled to a declaration in its favor by establishing ‘(1) the sought-after declaration is legally incorrect; (2) [the] undisputed facts do not support the premise for the sought-after declaration; or (3) the issue is otherwise not one that is appropriate for declaratory relief.’ If this is accomplished, the burden shifts to the plaintiff to prove, by producing evidence of, specific facts creating a triable issue of material fact as to the cause of action or the defense.” (Cates v. California Gambling Control Com. (2007) 154 Cal App 4th 1302, 1307-1308, citing Gafcon, Inc. v. Ponsor & Associates (2002) 98 Cal App. 4th 1388, 1402.) Defendant has not shown that the sought after declaration (of rights and duties under an alleged oral contract) is legally incorrect, that the undisputed facts (and for purposes of this motion Defendant does not dispute Decedent signed the Sept. 24, 2012 Agreement) do not support the premise of the claim, or that the issue (the existence or nonexistence of an enforceable contract) is not appropriate for declaratory relief.

“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (CCP §437c(q).) The Court notes that with her Reply Defendant has submitted objections to various evidence submitted by Plaintiff, but only to that evidence as cited as support for Plaintiff’s “Statement of Additional Disputed Facts” and not as to any of Plaintiff’s evidence as cited in Plaintiff’s “Response to Respondent’s Separate Statement.” In any event, as the Court has concluded that Defendant has not met her initial burden, the burden never shifted to Plaintiff, none of Plaintiff’s evidence was considered and any objections to that evidence were therefore not material to the disposition of the motion.