Case Name: Manishkumar Ankola v. Priyanka Ankola
Case No.: 17-CV-319410

Currently before the Court is the motion by defendant Priyanka Ankola (“Defendant”) for judgment on the pleadings as to the third cause of action of the second amended complaint (“SAC”) of plaintiff Manishkumar Ankola (“Plaintiff”).

Factual and Procedural Background

This is an action for assault and battery, defamation, deceit, and intentional infliction of emotional distress (“IIED”). Plaintiff filed his original complaint against Defendant in November 2017. Thereafter, Plaintiff filed a first amended complaint (“FAC”) against Defendant in April 2018, alleging causes of action for: (1) assault and battery; (2) sexual battery; (3) negligence; (4) defamation; (5) deceit; (6) malicious prosecution; and (7) IIED.

One month later, Defendant filed a demurrer to the FAC and a motion to strike portions of the FAC. After filing her moving papers, Defendant filed a supplemental memorandum of points and authorities in support of her demurrer. Plaintiff opposed the demurrer, and Defendant filed a reply in support of her demurrer.

Defendant’s demurrer and motion to strike proceeded to hearing on September 20, 2018. Later that day, the court (Hon. Theodore C. Zayner) issued its order on Defendant’s demurrer and motion to strike. As is relevant here, the court, in its discretion, refused to consider Defendant’s supplemental memorandum of points and authorities and the arguments raised therein. Additionally, the court overruled Defendant’s demurrer to the fifth cause of action for deceit on the ground of failure to allege facts sufficient to constitute a cause of action. In ruling on Defendant’s demurrer to the fifth cause of action, the court addressed Defendant’s arguments that the claim was time-barred by the applicable statute of limitations and there was another action pending between the parties.

On October 5, 2018, Plaintiff filed the operative SAC against Defendant.

Accordingly to the allegations of the SAC, Defendant and Plaintiff met in August 2013. (SAC, ¶ 6.) Defendant asked Plaintiff to help her find a United States citizen willing to marry her so that she could stay in the United States. (Id. at ¶ 8.) In September 2013, Plaintiff “declared his love and proposed marriage to [Defendant] … .” (Id. at ¶ 9.) Plaintiff “was very committed, wanted to marry [Defendant] and share [the] rest of his life with her.” (Ibid.) Defendant declined Plaintiff’s proposal of marriage, “but was happy and continued to meet with [Plaintiff] building a relationship.” (Ibid.)

In October 2013, Defendant returned to India because her H1B visa was revoked. (SAC, ¶ 11.) Plaintiff decided to travel to India to see Defendant “and meet with her parents to ask for her hand in marriage.” (Ibid.)

Plaintiff arrived in India in November 2013, “and eventually [Defendant] told him she might marry him if her parents approved.” (SAC, ¶ 12.) Plaintiff met Defendant’s family and “they gave their blessings for the marriage.” (Ibid.) Plaintiff “proposed that he could apply for a K1 fiancée visa and then adjust [Defendant’s] status after they get [sic] married in California” and Defendant agreed. (Ibid.)

“Thereafter, [Plaintiff] initiated the K1 fiancée visa processing” and Defendant “fully cooperated with the K1 visa processing.” (SAC, ¶ 15.) Defendant’s visa was approved in May 2014. (Ibid.)

Defendant arrived in the United States on June 6, 2014. (SAC, ¶ 15.) Plaintiff and Defendant got married on June 12, 2014. (Ibid.) Subsequently, Plaintiff and Defendant “applied for adjustment of [Defendant’s] immigration status to lawful permanent resident (green card) based on her being the wife of a U.S. [citizen].” (Id. at ¶ 16.) Defendant’s green card was approved on November 24, 2015.” (Ibid.)

During the course of their marriage, the parties’ relationship deteriorated and Defendant moved out of the family home. (SAC, ¶¶ 17-28.) In or about December of 2015, Plaintiff “filed a Petition in Family Court (Santa Clara County Case No. 15-FL-173072) to have his marriage with [Defendant] declared a nullity.” (Id. at ¶ 29.) “By this time [Plaintiff] was convinced that [Defendant] had married him just to get a green card and had never loved him.” (Ibid.)

Plaintiff alleges that some time prior to their marriage, Defendant told him that “she loved him and wanted to spend the rest of her life married to him.” (SAC, ¶ 58.) Plaintiff alleges that “[t]he true facts were that [Defendant] only wanted to get help getting a green card, never loved him, never really wanted to become his wife, and never intended to remain married after she obtained a green card.” (Id. at ¶ 59.) Defendant allegedly “concealed her true intentions” from Plaintiff and “made the foregoing misrepresentations and omissions … to induce [Plaintiff] to help her enter the U.S. and obtain a green card from the U.S. government so she could permanently reside and work in the U.S. … .” (Id. at ¶¶ 59-60.)

Plaintiff allegedly relied on Defendant’s misrepresentations when he “applied for a fiancée visa for her, got married to her, lived with her, brought her into his family and as a step-mother to his younger son …, helped her apply for her green card, was interviewed by immigration authorities, cared for [Defendant], tried to help her with her emotional problems, provided financial support and a place to live, and did his best to be a good, kind, caring and devoted husband.” (SAC, ¶ 62.) As a result, Plaintiff incurred damages. (Id. at ¶ 63.)

Based on the foregoing allegations, Plaintiff alleges the following causes of action: (1) assault and battery; (2) defamation; (3) deceit; and (4) IIED.

On December 4, 2018, Defendant filed the instant motion for judgment on the pleadings. Plaintiff filed papers in opposition to the motion on April 5, 2019.

Discussion

Pursuant to Code of Civil Procedure section 438, Defendant moves for judgment on the pleadings as to the third cause of action of the SAC on the ground of failure to allege facts sufficient to constitute a cause of action. (Code Civ. Proc., § 438, subd. (c)(1)(B)(ii).)

I. Request for Judicial Notice

In connection with his opposition, Plaintiff asks the Court to take judicial notice of Defendant’s reply filed in support of her demurrer to the FAC.

The subject document is generally a proper subject of judicial notice under Evidence Code section 452, subdivision (d). That statute states that courts may take judicial notice of “[r]ecords of any court of this state.” (Evid. Code, § 452, subd. (d).) That provision permits the trial court to “take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.” (People v. Woodell (1998) 17 Cal.4th 448, 455.) Consequently, Court will only take judicial notice of the existence of the subject document. The Court will not take judicial notice of the truth of hearsay statements therein.

Accordingly, Plaintiff’s request for judicial notice is GRANTED as to the existence of the subject document.

II. Procedural Issues

As a preliminary matter, Plaintiff argues that the motion must be denied under Code of Civil Procedure section 438, subdivision (g) because the court (Hon. Theodore C. Zayner) previously overruled Defendant’s demurrer to the fifth cause of action of the FAC.

Code of Civil Procedure section 438 provides the statutory framework for a motion for judgment on the pleadings. (Code Civ. Proc., § 438.) A motion for judgment on the pleadings has the same function as a demurrer, to test the sufficiency of the pleadings, but is made after the time to demur has expired. (Cloud v. Northrop Grumman Corp. (1998) 67 CA4th 995, 999.) Code of Civil Procedure section 438 includes a limitation on when a litigant who has already demurred can file a motion for judgment on the pleadings “on the same grounds.” (Code Civ. Proc., § 438, subd. (g).) Specifically, the statute provides that “[t]he motion provided for in this section may be made even though either of the following conditions exist: (1) [t]he moving party has already demurred to the complaint or answer, as the case may be, on the same grounds as is the basis for the motion provided for in this section and the demurrer has been overruled, provided that there has been a material change in applicable case law or statute since the ruling on the demurrer[;] (2) [t]he moving party did not demur to the complaint or answer, as the case may be, on the same grounds as is the basis for the motion provided for in this section.” (Code Civ. Proc., § 438, subd. (g).)
Here, Plaintiff’s argument is not well-taken for several reasons. First, Code of Civil Procedure section 438, subdivision (g) does not apply because Defendant has not previously demurred to the operative pleading—the SAC. Rather, Defendant demurred to the FAC. Upon the filing of the SAC, the FAC was superseded and ceased to perform any function as a pleading. (See State Compensation Ins. Fund v. Super. Ct. (2010) 184 Cal.App.4th 1124, 1130 [“It is well established that an amendatory pleading supersedes the original one, which ceases to perform any function as a pleading.”].) The filing of the SAC opened the door to challenges to the legal sufficiency of the SAC, including causes of action that previously survived demurrer. (See Clausing v. San Francisco Unified School District (1990) 221 Cal.App.3d 1224, 1232 [a defendant is generally entitled to respond to an amended pleading in the same manner as he or she did to the earlier pleading, which includes filing of another demurrer and/or motion for judgment on the pleadings, because the amended pleading is treated as a new pleading]; see also Pacific State Enterprises, Inc. v. City of Coachella (1993) 13 Cal.App.4th 1414, 1420; Pavicich v. Santucci (2000) 85 Cal.App.4th 382, 389, fn. 3; Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1036; Carlton v. Dr. Pepper Snapple Group, Inc. (2014) 228 Cal.App.4th 1200, 1211 [stating filing an amended complaint “opened the door to a demurrer to the entire” pleading, including causes of action that previously survived demurrer].)
Second, even if Code of Civil Procedure section 438, subdivision (g) applied, it would not bar the instant motion. In evaluating whether a subsequent motion for judgment on the pleadings was brought “on the same grounds” as a previously overruled demurrer, courts have construed the “grounds” for the demurrer, in a broad sense, as extending to the arguments previously raised in support of the ground of failure to state a claim. (See Farber v. Bay View Terrace Homeowners Ass’n, supra, 141 Cal.App.4th at 1013 [holding that the defendant was free to raise its argument regarding standing by motion for judgment on the pleadings because the trial court did not consider that argument when it overruled the demurrer to the complaint]; see also Thomson v. Canyon (2011) 198 Cal.App.4th 594, 603 [since the motion for judgment on the pleadings was based on the parol evidence rule and the parol evidence rule was not raised on demurrer, the defendant’s argument regarding the same was a proper basis for the motion].) This broad interpretation of “grounds” is bolstered by the statute’s reference to the permissible filing of a motion for judgment on the pleadings on the “same grounds” as a previously overruled demurrer where “there has been a material change in applicable case law or statute since the ruling on the demurrer.” (See Code Civ. Pro., § 438, subd. (g)(1).) This reference to a “material change in applicable case law” would only make sense in connection with arguments advanced by a defendant in support of a ground for demurrer.

Reading the term “grounds” as specified above, the present motion is not based on the same grounds as the previously overruled demurrer. As explained above, in ruling on Defendant’s demurrer to the fifth cause of action, the court (Hon. Theodore C. Zayner) only addressed Defendant’s arguments that the claim was time-barred by the applicable statute of limitations and there was another action pending between the parties. The court refused to consider Defendant’s supplemental memorandum of points and authorities and the arguments raised therein, including the argument that the claim for deceit was barred by Civil Code sections 43.4 and 43.5.

In contrast, the present motion is brought solely on the basis that the third cause of action for deceit is barred by Civil Code sections 43.4 and 43.5. Thus, the instant motion cannot be considered as having been brought on the “same grounds” as the prior demurrer to the fifth cause of action of the FAC.

Next, Plaintiff argues that the motion is procedurally defective because Defendant did not file a meet and confer declaration as required under Code of Civil Procedure section 439, subdivision (a).

Code of Civil Procedure section 439, subdivision (a) requires a party bringing a motion for judgment on the pleadings to meet and confer with the party who filed the challenged pleading to seek informal resolution of any objections to the pleading. (Code Civ. Proc., § 439, subd. (a).) The meet and confer must be conducted in person or by telephone, and must address each cause of action, defense, or allegation at issue in the motion. (Ibid.) If these efforts fail, the demurring or moving party must file and serve a declaration regarding the meet and confer process. (Ibid.) While a court may not overrule a demurrer or deny a motion to strike for insufficient meet and confer efforts (see Code Civ. Proc., § 439, subd. (a)(4)), it may continue the hearing and order the parties to meet and confer as required (see Assem. Com. on Judiciary, Rep. on Sen. Bill No. 383 (2015-2016 Reg. Sess.), p. 2).

Here, Defendant did not file the requisite meet and confer declaration with its motion. Therefore, Defendant failed to adequately meet and confer. However, in the interest of moving the case forward, the Court will overlook—in this instance only—Defendant’s failure to adequately meet and confer. Defendant is admonished to comply with the Code of Civil Procedure going forward.

Accordingly, the Court will reach the merits of the motion.

III. Legal Standard

A motion for judgment on the pleadings is the functional equivalent of a general demurrer. (Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 548; Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999; Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254 (Shea).) A defendant can move for judgment on the pleadings on the grounds that the complaint does not state sufficient facts to constitute a cause of action. (Code Civ. Proc., § 438, subd. (c)(1)(B)(ii).) “The grounds for the motion must appear on the face of the complaint, and in any matters subject to judicial notice. [Citation.] The court accepts as true all material factual allegations, giving them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts. [Citations.]” (Shea, supra, 110 Cal.App.4th at p. 1254; Kapsimallis v. Allstate Ins. Co. (2002) 104 Cal.App.4th 667, 672.)

IV. Third Cause of Action

Defendant argues that the third cause of action for deceit is barred by Civil Code sections 43.4 and 43.5.

In opposition, Plaintiff does not present any argument disputing the substantive merits of Defendant’s motion.

The issue before the Court is whether the third cause of action is barred by Civil Code sections 43.4 and 43.5, which abolish so-called “heart balm” actions. (See Boyd v. Boyd (1964) 228 Cal.App.2d 374, 376 (Boyd).) Civil Code section 43.4 states that “[a] fraudulent promise to marry or to cohabit after marriage does not give rise to a cause of action for damages.” Similarly, Civil Code section 43.5 provides that no cause of action arises for a “[b]reach of promise of marriage.” (Civ. Code, § 43.5, subd. (d).) The statutes bar actions alleging fraudulent inducement into a marriage. (In re Marriage of Buckley (1982) 133 Cal.App.3d 927, 933-934.) These provisions also embrace postnuptial breaches of vows made before or as part of the marriage contract. (Id. at p. 933; Boyd, supra, 228 Cal.App.2d at pp. 376–377.)

Notably, “[t]he marriage institution comprehends an array of interrelated commitments and expectations. These commitments include the usual incidents of matrimonial existence such as mutual affection, companionship, sexual relations,” distribution of domestic activities, and financial support. (Boyd, supra, 228 Cal.App.2d at p. 378.) “In outlawing breach of promise actions, section 43.5[, subdivision] (d) aims at lawsuits in which one party or the other seeks financial compensation for loss of this group of expectations and commitments.” (Ibid.)

“The[se] statute[s] create[ ] a blanket immunization from liability for the conduct [they] protect[ ] unless such conduct ‘breaches a duty of care independent of the causes of action barred therein.’ [Citations.]” (Richelle L. v. Roman Catholic Archbishop (2003) 106 Cal.App.4th 257, 267.) To prevent a plaintiff from getting around these statutes by using “the dancing footwork of artful pleading” (Boyd, supra, 228 Cal.App.2d at p. 381), “[c]ourts must look to the substance of the lawsuit[ ]” (Askew v. Askew (1994) 22 Cal.App.4th 942, 954 (Askew)).

The cases of Boyd, supra, and Askew, supra, are instructive here.

In Boyd, the plaintiff was a woman who was receiving both veterans and social security payments because she was a widow. (Boyd, supra, 228 Cal.App.2d at pp. 375-376.) She married the defendant, but after two days he left her and refused to live with or support her. (Id. at p. 376.) Thereafter, the Veterans and Social Security Administrations cut off payments to her because of the marriage. (Ibid.) The widow sued the defendant for breach of oral promise to live with and support her and for fraudulently promising (with full knowledge of the government payments) to live with and support her. (Ibid.) The appellate court heard the appeal from an order sustaining a general demurrer. (Ibid.)

The court of appeal held that the suit for breach of an express promise of support was barred by Civil Code section 43.5, subdivision (d). (Boyd, supra, 228 Cal.App.2d at pp. 376-380.) Taking a cue from the well-known bundle of sticks metaphor in property law, the appellate court reasoned that marriage, as an institution, encompassed a “bundle of expectations and commitments,” and each stick in the bundle—not just the expectation of economic support—was covered by the anti-heart-balm statute. (Id. at p. 378.) If section 43.5, subdivision (d) prohibited actions seeking “compensation for outraged affection or loss of companionship,” it also prohibited actions seeking “loss of expected support.” (Id. at pp. 378-379.)
Similarly, the fraud cause of action was precluded by Civil Code section 43.4. (Boyd, supra, 228 Cal.App.2d at pp. 380-382.) The appellate court reasoned that the “gravamen” of the cause of action was the defendant’s fraudulent promise to cohabit after marriage. (Id. at p. 381.) The court’s approach was to look to the substance of the facts, not the convenient appellation “fraud” attached to them. (Ibid.) If the “legal character of the injury” and the “character of the litigation objective” entailed the exploration of a “suitor’s mind to determine the sincerity of his marriage proposal,” then the substance of the claim was “within the jaws of section 43.4.” (Ibid.)

In Askew, after a wife filed for dissolution, her husband filed a separate civil lawsuit against the wife for fraud and related causes of action. (Askew, supra, 22 Cal.App.4th at p. 946.) The husband alleged that prior to the marriage, she falsely represented that she loved him and was sexually attracted to him, and in reliance on these and other representations, he married her and put certain parcels of real property into both their names as joint tenants. (Ibid.) The husband also alleged that after the marriage the wife represented that she would hold property to which she was put on title “for his benefit and that of his children.” (Id. at p. 947.)

The appellate court determined that the wife’s allegedly false statements that she loved her husband clearly came within the legal category of a fraudulent promise to “cohabit” after marriage. (Askew, supra, 22 Cal.App.4th at p. 957.) The court opined: “[T]hese statutes not only preclude certain ‘old fashioned’ causes of action, but also embody a basic reluctance on the part of both the Legislature and the judiciary to allow recovery for promises of love. This reluctance stems, no doubt, from the sheer unseemliness of litigating tender matters of romantic or sexual emotion in courts of law. Using the courts to distinguish ‘between a false statement of one’s feelings and a change in those feelings”’ presents, in Judge Posner’s phrase, ‘exquisitely difficult’ problems of proof.” (Id. at pp. 957-958.)

Here, there third cause of action for deceit arises out of Defendant’s alleged misrepresentation that “she loved [Plaintiff] and wanted to spend the rest of her life married to him.” (SAC, ¶ 58.) Plaintiff alleges that “[t]he true facts were that [Defendant] only wanted to get help getting a green card, never loved him, never really wanted to become his wife, and never intended to remain married after she obtained a green card.” (Id. at ¶ 59.) Defendant allegedly “concealed her true intentions” from Plaintiff and “made the foregoing misrepresentations and omissions … to induce [Plaintiff] to help her enter the U.S. and obtain a green card from the U.S. government so she could permanently reside and work in the U.S. … .” (Id. at ¶¶ 59-60.) Plaintiff further alleges that he relied on Defendant’s misrepresentations when he “applied for a fiancée visa for her, got married to her, lived with her, brought her into his family and as a step-mother to his younger son …, helped her apply for her green card, was interviewed by immigration authorities, cared for [Defendant], tried to help her with her emotional problems, provided financial support and a place to live, and did his best to be a good, kind, caring and devoted husband.” (Id. at ¶ 62.) As a result of Defendant’s alleged misrepresentation, Plaintiff incurred damages. (Id. at ¶ 63.)

It is readily apparent from these allegations that the third cause of action is barred by Civil Code sections 43.4 and 43.5, subdivision (d). The claim, as alleged, is predicated on Defendant’s false promise regarding the bundle of interrelated commitments and expectations that comprise the institution of marriage. Specifically, the claims arise out of Defendant’s false promise that she would live (i.e., cohabit) with and love Plaintiff. But claims based on such false promises and misrepresentations are encompassed and barred by the anti-heart balm statutes. (See Boyd, supra, 228 Cal.App.2d at pp. 380-382; see also Askew, supra, 22 Cal.App.4th at pp. 957-958.)

Accordingly, Defendant’s motion for judgment on the pleadings as to the third cause of action of the SAC is GRANTED, without leave to amend.