2013-00144768-CU-FR

Kevin Henry vs. Mary H Neubauer

Nature of Proceeding: Hearing on Demurrer to First Amended Complaint

Filed By: Posner, Jeffrey J.

Defendant Mary Neubauer’s demurrer to Plaintiff Kevin Henry’s first amended
complaint (“FAC”) is ruled upon as follows.

Defendant’s request for judicial notice is granted, with the exception of Exhibit F
(Letter). In taking judicial notice of these documents, the court accepts the fact of their
existence, not the truth of their contents. (See Professional Engineers v. Dep’t of
th
Transp. (1997) 15 Cal.4 543, 590 [judicial notice of findings of fact does not mean
that those findings of fact are true]; Steed v. Department of Consumer Affairs (2012)
204 Cal.App.4th 112, 120-121.)

This is an action arising from Plaintiff’s and Defendant’s dissolution of marriage.
Plaintiff alleges that on June 1, 2000, the parties entered into a Judgment of
Dissolution of Marriage (“Judgment”). On October 16, 2002, the parties modified the
Judgment to award one-half of the community interest in Plaintiff’s interest in his
CalPERS retirement account (“Retirement Account”) to Defendant. Apparently,
Plaintiff later learned that Defendant had provided false evidence and committed
perjury to the court related to her claim to the Retirement Account.

Plaintiff alleges that beginning April 11, 2011 through October 12, 2011, the parties
negotiated and entered into an oral contract in which Defendant agreed, among
others, to transfer all of her interest in the Retirement Account to Plaintiff, and that
Plaintiff would not take non-criminal judicial action against Defendant to rectify her
actions as a result of her admission made after entry of the modified judgment that she
knowingly provided false evidence to the court and committed perjury relating to her
claim to the Retirement Account. (FAC, paras. 4-5.) Plaintiff further allege that
beginning June 23, 2011 through October 12, 2011, the parties exchanged emails
consistent with the above oral representations. (FAC, para. 13.) Plaintiff alleges that
Defendant refused to release her interest in the Retirement Account.

The FAC includes the following causes of action: (1) breach of oral contract, (2) breach
of written contract, (3) specific performance of oral contract, (4) specific performance
on written contract, and (5) unjust enrichment and constructive trust.

Statute of Limitations: Family Code Section 2122

Defendant argues that Plaintiff’s causes of action are barred by the one year statute of
limitations for an action to vacate a dissolution judgment on the grounds of fraud or
perjury pursuant to Family Code section 2122. Here, the Court is not convinced that Family Code section 2122 applies because
Plaintiff is not seeking to vacate the judgment. Defendant’s reliance on Rubenstein v.
Rubenstein (2000) 81 Cal. App. 4th 1131, 1136 is misplaced. In Rubenstein, in a civil
tort action for concealment of community assets, the proper remedy to set aside the
judgment (and applicable statute of limitations) is Family Code Section 2122. Here,
however, Plaintiff does not include a cause of action for concealment of community
assets, rather, it is for Defendant’s breach of a post-judgment agreement.

Accordingly, the demurrer is OVERRULED on this ground.

Contract Based Causes of Actions

In order to transmute property, there must be an express declaration in writing that is
made, joined in, consented to, or accepted by the spouse whose interest in the
property is adversely affected. (Fam. Code §852.)

Defendant appears to argue that Plaintiff’s contract based causes of action lack merit
because the agreements do not rise to the standards of a written agreement made in
open court. (Fam. Code section 852; In Estate of MacDonald (1990) 51 Cal.3d 262 [a
writing satisfies the Family Code section 852(a) “express declaration” requirement only
if it states on its face that a change in the character or ownership of the subject
property is being made.].) Defendant further argues that Plaintiff’s part performance
pursuant to the oral contracts is insufficient to transmute property. (In re: Marriage of
Benson (2005) 36 Cal.4th 1096 [oral agreement to waive community property interest
does not satisfy Fam. Code Section 852, even if there is full performance by the other
party. “Section 852(a) does not operate like the general statute of frauds.”)

The Court, however, is not convinced that Family Code §852 applies here.
Transmutation of property means “an interspousal transaction changing the character
of community or separate property.” (In re: Marriage of Benson (2005) 36 Cal.4th
1096, 1153; Fam. Code §850 [“married persons may by agreement or transfer, with or
without consideration . . . (a) transmute community property to separate property of
either spouse, (b) transmute separate property of either spouse to community
property, (c) transmute separate property of one spouse to separate property of the
other spouse.”] (emphasis added).) Here, at the time the purported contracts were
agreed upon, the parties had been divorced for almost eleven years. Thus, Plaintiff
and Defendant were not “married persons” and the purported agreements were not
“interspousal transactions.”

Accordingly, the demurrer is OVERRULED.

Unjust Enrichment and Constructive Trust

Defendant demurs to this cause of action on the grounds Plaintiff has not alleged loss,
sufficient consideration or a confidential relationship.

The demurrer is OVERRULED as Plaintiff has sufficiently alleged the elements for a
constructive trust. A constructive trust may only be imposed when the following three
conditions are met: (1) the existence of property or some interest in property; (2) the
plaintiff’s right to that property; and (3) the defendant’s wrongful acquisition or
detention of the property. (Burlesci v. Petersen (1998) 68 Cal. App. 4th 1062, 1067;
Communist Party v. 522 Valencia, Inc. (1995) 35 Cal. App. 4th 980, 990-991.) Here, Plaintiff alleges that he has an interest in the Retirement Account. Plaintiff
further alleges that he has a right to the property because Defendant knowingly
provided false evidence to the court and committed perjury relating to her claim to the
Retirement Account in order to acquire her interest in the account. He further alleges
that Defendant agreed to transfer her interest in the Retirement Account back to
Plaintiff and that in exchange Plaintiff agreed not to take non-criminal, judicial action
against Defendant. He lastly alleges that Defendant refused to perform the contracts.

Defendant shall file and serve an answer by no later than May 12, 2014.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.

Item 10 2013-00144768-CU-FR

Kevin Henry vs. Mary H Neubauer

Nature of Proceeding: Motion to Transfer Case to Family Law Department

Filed By: Posner, Jeffrey J.

Defendant’s motion to transfer case to Family Law Department is DENIED.

Given that the Court has overruled Defendant’s demurrer, Defendant now asks the
Court to transfer the matter to the family law department.

Defendant argues that the family court retained jurisdiction over this action because
the complaint pursues only community property. Defendant relies on the following
documents to support its position.

· Agreement Modifying the Judgment of Dissolution of Marriage. “The court retains
and reserves the right to carry out this Order and to enter a CalPERS Order dividing
the retirement interests earned by Husband during the marriage as set forth above.”

· Domestic Relations Order. “Should any portion of the Order be rendered invalid,
illegal, unconstitutional, or otherwise incapable of enforcement, or should any of the
procedural matters herein ordered need to be adjusted to accomplish the objectives
of this order, the court reserves jurisdiction to make such further order as will effect
the intent of the parties as manifested herein, including the overall equal division of
the community portion of this asset. The court retains jurisdiction with respect to this
Order to the extent required to maintain the original intent of the Order or to remedy
its breach.”

The Court is not convinced that the family court retained jurisdiction over the instant
action. Here, the instant action does not seek to “maintain the original intent of the
Order” or remedy a “breach” of the Domestic Relations Order. Nor does the instant
action seek to enforce or vacate the Agreement Modifying the Judgment of Dissolution
of Marriage. Rather, Plaintiff seeks remedies related to post-dissolution agreements.
Moreover, the Court disagrees with Plaintiff that the complaint pursues only community
property. Indeed, the first amended complaint alleges that upon entry of the Modified Judgment, one-half of the community interest in the retirement account became
Defendant’s sole and separate property, over which she had sole dominion and control
and regarding which she could enter into contracts, subject to rules and regulations
governing CalPERS retirement plans. (FAC, ¶ 4.) Notably, the post-dissolution
agreements were made almost eleven years after the parties’ divorced.

Accordingly, the motion is DENIED.

Defendant’s request for sanctions is DENIED.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.

Item 11 2013-00144768-CU-FR

Kevin Henry vs. Mary H Neubauer

Nature of Proceeding: Motion for Protective Order

Filed By: Posner, Jeffrey J.

Defendant’s motion for protective order to stay discovery is DROPPED as moot.

Defendant seeks a protective order pending the Court’s determination of her demurrer
to the first amended complaint and motion to transfer case to family law department.
Because the Court has overruled Defendant’s demurrer and denied her motion to
transfer, the purpose of the protective order is rendered moot.