Case Name: Masako Sato v. Mariko Morita, et al.
Case No.: 17CV306791

Demurrer of Defendant/ Cross-Complainant/ Cross-Defendant Mariko Morita to Cross-Complaint of Plaintiff/ Cross-Defendant/ Cross-Complainant Masako Sato

Plaintiff Masako Sato (“Masako”) is the owner of real property located at 9515 Sugar Babe Drive in the city of Gilroy (“Subject Property”). (First Amended Complaint (“FAC”), ¶5.) On May 25, 1988, plaintiff Masako and Shuichi Sato (“Shuichi”) acquired title to the Subject Property via a deed which was titled, “SHUICHI SATO and MASAKO SATO, husband and wife AS JOINT TENANTS.” (FAC, ¶6.)

Defendant Mariko Morita (“Morita”) occupied the Subject Property with Shuichi’s consent. (FAC, ¶7.) On January 10, 2017, Shuichi died. (FAC, ¶8.) On January 10, 2017, title to the Subject Property remained in the names of Shuichi and Masako as joint tenants. (FAC, ¶9.) Upon Shuichi’s death, his interest in the Subject Property passed to the surviving joint tenant, Masako, by operation of law. (FAC, ¶10.) Defendant Morita’s right to occupy the real property was terminated and extinguished upon Shuichi’s death. (FAC, ¶11.) At no time did plaintiff Masako enter into a landlord tenant relationship with defendant Morita. (FAC, ¶12.)

On February 21, 2017, plaintiff Masako recorded an affidavit-death of joint tenant. (FAC, ¶13.) Defendant Morita remains in possession of the Subject Property. (FAC, ¶14.) Despite demands by plaintiff Masako, defendant Morita has failed and refused to vacate and turn over possession of the Subject Property to plaintiff Masako. (FAC, ¶¶15 – 16.) Defendant Morita continues to occupy the Subject Property adversely and against plaintiff Masako’s rights as owner of the Subject Property. (FAC, ¶17.) The reasonable rental value of the Subject Property is $4,200 per month. (FAC, ¶18.)

On February 28, 2017, plaintiff Masako filed a complaint against defendant Morita asserting a single cause of action for ejectment.

On March 30, 2017, plaintiff Masako filed a FAC against defendant Morita and any successors or claimants of decedent Shuichi. The FAC now asserts causes of action for:

(1) Ejectment
(2) Partition

Also on March 30, 2017, defendant Morita filed an answer to plaintiff Masako’s complaint and also filed a cross-complaint against plaintiff/ cross-defendant Masako. In the cross-complaint, defendant/ cross-complainant Morita alleges she was married to Shuichi. (Morita Cross-Complaint, ¶2.) Prior to defendant/ cross-complainant Morita’s marriage to Shuichi, Shuich and plaintiff/ cross-defendant Masako were married. (Morita Cross-Complaint, ¶3.) During their marriage, plaintiff/ cross-defendant Masako and Shuichi acquired the Subject Property as husband and wife in joint tenancy. (Id.)

In late 1999, plaintiff/ cross-defendant Masako and Shuichi dissolved their marriage by mutual consent authorized and in accordance with Japanese law. (Morita Cross-Complaint, ¶4.) Shuichi died on January 10, 2017 and defendant/ cross-complainant Morita is Shuichi’s successor in interest by virtue of Shuichi’s will leaving any and all of his property and estate to defendant/ cross-complainant Morita. (Morita Cross-Complaint, ¶5.)

Morita’s cross-complaint asserts the following causes of action:

(1) Declaratory Relief as to Severance of Joint Tenancy Interests in Real Property
(2) Declaratory Relief as to Tenancy in Common Interests in Real Property Resulting from Dissolution of Marriage Unaccompanied by Property Adjudication

On April 20, 2017, plaintiff/ cross-defendant Masako filed an answer to defendant/ cross-complainant Morita’s cross-complaint and also filed a further cross-complaint against Morita. In her cross-complaint, Masako alleges she, Shuichi, and their two sons moved from Japan to the United States in July 1976. (Masako Cross-Complaint, ¶3.) On September 23, 1988, Masako became a United States citizen. (Masako Cross-Complaint, ¶4.) On May 26, 1999, Shuichi became a United States citizen. (Masako Cross-Complaint, ¶5.)

In approximately November 1999, Shuichi obtained a Japanese notification of divorce form (i.e., a mutual agreement for divorce) from the Japanese consulate in San Francisco. (Masako Cross-Complaint, ¶6.) In November 1999, Shuichi presented the Japanese notification of divorce form to Masako for her signature. (Masako Cross-Complaint, ¶7.) On November 23, 1999, Shuichi submitted the Japanese notification of divorce form to the Japanese consulate office in San Francisco. (Masako Cross-Complaint, ¶8.) On January 5, 2000, Masako left California for Japan. (Masako Cross-Complaint, ¶9.) On January 16, 2000, Masako recorded her residency in Japan for the first time since July 1976. (Masako Cross-Complaint, ¶10.)

Between July 1976 and January 2000, Shuichi and Masako both lived in, were domiciled in, and were citizens of the State of California during which time Shuichi worked in California, operated a business in California, both voted in California, both owned real estate in California, both maintained bank accounts in California, both paid California and federal income taxes, and both raised two children in California. (Masako Cross-Complaint, ¶11.) Between July 1976 and 2000, Shuichi never returned to Japan except for occasional visits with his sister and for business. (Masako Cross-Complaint, ¶12.) Shuichi never resided in Japan after July 1976. (Id.)

No divorce/ dissolution of marriage proceeding was ever filed in California. (Masako Cross-Complaint, ¶14.) No court in Japan, California, or elsewhere has ever issued/ rendered a decree of divorce or dissolution of the marriage of Masako and Shuichi. (Masako Cross-Complaint, ¶15.) Shuichi died on January 10, 2017. (Masako Cross-Complaint, ¶16.)

Masako’s cross-complaint asserts a single cause of action for declaratory relief. Masako seeks a judicial determination that the Japanese divorce is invalid, unenforceable, and not recognizable by the State of California. (Masako Cross-Complaint, ¶18.) Masako seeks a further determination that she is the surviving joint tenant of the Subject Property. (Masako Cross-Complaint, ¶19.)

On May 25, 2017, cross-defendant Morita filed a demurrer to Masako’s cross-complaint.

On July 6, 2017, cross-complainant Masako filed opposition to cross-defendant Morita’s demurrer.

I. Procedural Defect.

Code of Civil Procedure section 430.41 provides that the demurring party must meet and confer with the party who filed the challenged pleading “for the purpose of determining whether an agreement could be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., §430.41, subd. (a).) During this process, the demurring party must identify all causes of action it believes are subject to demurrer, identify the bases for the demurrer, and provide legal support. (Code Civ. Proc., §430.41, subd. (a)(1).) In turn, the opposing party shall provide legal support for its position that the pleading is legally sufficient or any identified defects may be cured. (Code Civ. Proc., §430.41, subd. (a)(1).) The demurring party shall file and serve with its demurrer a declaration stating that: (1) the means by which the demurring party met and conferred and that the parties did not reach agreement; or (2) that the party who filed the pleading failed to respond or otherwise failed to meet and confer in good faith. (Code Civ. Proc., § 430.41, subd. (a)(3).) If a demurring party fails to file the requisite declaration, the court may continue the hearing and order the parties to meet and confer. (Assem. Com. on Judiciary, Rep. on Sen. Bill No. 383 (2015-2016 Reg. Sess.), p. 2.) A court may not sustain a demurrer based on the insufficiency of the meet and confer process. (Code Civ. Proc., §430.41, subd. (a)(4).)

Cross-defendant Morita’s counsel filed a Judicial Council form declaration stating, in relevant part, “On May 17, 2017, which was at least five days before any responsive pleading was due, I directed my assistant to meet and confer by telephone per CCP 430.41 with Leonard J. Siegel, counsel for Plaintiff/Cross-Defendant/Cross-Complainant Mariko Sato. The parties did not reach an agreement resolving the objections raised in the demurrer.”

In opposition, cross-complainant Mariko’s counsel submitted a declaration which states, in relevant part, “On May 17, 2017, I received a telephone call from Nancy, who identified herself as Mr. Beckman’s assistant. She stated that the purpose of her call was to meet and confer regarding the demurrer that Mr. Beckman intends to file and to clear hearing dates. After I explained to Nancy my position on the pleadings, Nancy stated that she is not handling the case and was not familiar with the case. Since it was readily apparent that Nancy could not discuss the facts of the case or the contents of the pleadings and thus engage in a meaningful ‘meet and confer, I asked Nancy to have Mr. Beckman call me so that we may discuss this further. … I never received a call or any other communication from Mr. Beckman so that we could have discussed and possibly resolved the issues raised by this demurrer.”

The court is concerned with the adequacy of cross-defendant Morita’s counsel’s efforts at meeting and conferring as required by Code of Civil Procedure section 430.41. In this court’s opinion, instructing an assistant who is unfamiliar with the legal pleadings, unable to identify the bases for the demurrer, and unable to provide legal support to meet and confer with opposing counsel is not a good faith attempt to meet and confer. Compliance with Code of Civil Procedure section 430.41 should not be treated as a formality. Cross-defendant Morita’s counsel is hereby admonished for failing to meet and confer in good faith.

II. Request for judicial notice.

In support of her demurrer, cross-defendant Morita requests judicial notice of the original complaint filed by plaintiff Masako in this action on February 28, 2017 and the cross-complaint filed by Masako on April 20, 2017. Evidence Code section 452, subdivision (d) states that the court may take judicial notice of “[r]ecords of any court of this state.” This section of the statute has been interpreted to mean that the trial court may take judicial notice of the existence of the court’s own records. Evidence Code section 452 and 453 permit 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.) Accordingly, the request for judicial notice in support of demurrer of defendant/cross-complainant/cross-defendant Mariko Morita to cross-complaint of plaintiff/cross-defendant/cross-complainant Masako Sato is GRANTED. The court takes judicial notice of the existence of the court records, not necessarily the truth of any matters asserted therein.

III. Cross-defendant Morita’s demurrer to cross-complainant Masako’s cross-complaint is OVERRULED.

“A complaint for declaratory relief should show the following: (a) A proper subject of declaratory relief within the scope of C.C.P. 1060; (b) An actual controversy involving justiciable questions relating to the rights or obligations of a party.” (5 Witkin, California Procedure (4th ed. 1997) §809, pp. 264 – 265; emphasis omitted.)

The actual controversy alleged by Masako in her cross-complaint is a dispute with regard to the validity of the divorce. Masako “contends the Japanese divorce was and is invalid, unenforceable, and not recognizable by the State of California” whereas “Morita contends that the purported ‘divorce’ is valid, enforceable and recognizable.”

In demurring, cross-defendant Morita contends this allegation of an actual controversy is sham pleading in view of Masako’s allegation in her original complaint that, “Subsequent to the acquisition of the [Subject Property], Shuichi Sato and plaintiff [Masako] were divorced. … Thereafter, Shuichi Sato married defendant MARIKO MORITA.”

“Under the sham pleading doctrine, plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment. [Citations and footnote omitted.] A noted commentator has explained, ‘Allegations in the original pleading that rendered it vulnerable to demurrer or other attack cannot simply be omitted without explanation in the amended pleading. The policy against sham pleadings requires the pleader to explain satisfactorily any such omission.’” (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425 – 426.) “The purpose of the doctrine is to enable the courts to prevent an abuse of process… The doctrine is not intended to prevent honest complainants from correcting erroneous allegations or to prevent the correction of ambiguous facts.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 751 (Hahn).)

Cross-defendant Morita contends the allegations in Masako’s cross-complaint are sham because Masako admitted her divorce from Shuichi in the original complaint and has not explained why she now contends the divorce is invalid. The court does not find the allegation in Masako’s cross-complaint to be sham. The present cross-complaint continues to allege, consistently, that Masako executed the Japanese notification of divorce form (i.e., mutual agreement for divorce.) (Masako Cross-Complaint, ¶¶6 – 8.) Masako does not omit the allegation of her divorce from her cross-complaint. Rather, Masako’s cross-complaint now seeks to declare the divorce to be invalid, unenforceable and not recognizable “based on lack of jurisdiction.” The sham pleading doctrine does not apply.

Accordingly, cross-defendant Morita’s demurrer to cross-complainant Masako’s cross-complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] is OVERRULED.