Case Name: Sharon Louise MacDonell v. Shipping Solutions, LP, et al.
Case No.: 18CV338328

This action is primarily a dispute between divorcing spouses, Plaintiff Sharon Louise MacDonell (“Plaintiff”) and specially appearing Defendant Roger MacDonell (“Defendant”) over the alleged concealment and liquidation of community assets present in California. These include the alleged community property business known as Defendant Shipping Solutions LP (“SSLP”) located in California. It is undisputed that Plaintiff and Defendant are engaged in a still pending divorce proceeding in France.

The operative First Amended Complaint (“FAC”) in this action, filed May 2, 2019, states claims for: (1) Injunction (seeking an injunction “requiring all proceeds and other consideration arising from the sale(s) of SSLP and GSS [Defendant Global Shipping Solutions, LLC] and/or their respective assets, to be deposited in one or more blocked accounts, or otherwise escrowed and sequestered with a third-party neutral, pending a determination and final division of these assets in the French divorce proceedings between Plaintiff and MacDonell [Defendant],” see FAC’s prayer at ¶1, brackets added]); (2) Accounting; (3) Breach of Fiduciary Duty, and (4) Declaratory Relief.

Currently before the Court is Defendant’s motion to quash service for lack of subject matter jurisdiction “pursuant to Code of Civil Procedure Section 418.10(a) and Family Code Section 2320, on [the] basis that this action is a divorce proceeding, over which this court does not have jurisdiction.” (Notice of Motion at pp. 1:28-2:2.) The Court notes that Defendant is not challenging personal jurisdiction.

Requests for Judicial Notice
Both sides have submitted 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.) The material issue presently before the Court is whether Family Code §2320 provides a basis for quashing service of the FAC by establishing a lack of subject matter jurisdiction.

1. Defendant’s Request
In support of his motion Defendant has submitted a request for judicial notice of two documents, submitted as exhibits 1 and 2 to the request, pursuant to Evidence Code §452(d).

Notice of Exhibit 1, a copy of declaration previously submitted by Plaintiff in support of an ex parte application, is DENIED. The declaration is not relevant to the material issue before the Court and the contents of declarations cannot be judicially noticed as a general matter. (See Intengan v. BAC Home Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1057 [court may take judicial notice of existence of declaration but not of facts asserted in it]; Bach v. McNelis (1989) 207 Cal.App.3d 852, 865 [court may not notice the truth of declarations or affidavits filed in court proceedings].)

Notice of exhibit 2, a copy of an “Order on Motion to Quash” issued by the San Mateo County Superior Court on October 5, 2010 in In re the Marriage MacDonell, case no. F 0110077, is GRANTED pursuant to Evidence Code §452(d), as the order is relevant to an argument made by Defendant in support of the motion. Court orders, unlike most court records, can be noticed as to their contents and legal effect. The order in pertinent part states that the Court granted “Respondent’s” (Defendant here) motion to quash service and dismiss the action because “Petitioner” (Plaintiff in this action) “was not able to establish that she was a resident of the State of California for 6 months immediately preceding the filing of her Petition[] for Dissolution of Marriage or of the County of San Mateo for the 3 months immediately preceding the filing as required by Family Code Section 2320.”

2. Plaintiff’s Request
With her opposition Defendant has submitted a request for judicial notice of 13 documents, attached as exhibits A-M to the request, pursuant to Evidence Code §452(d). All 13 documents are copies of documents previously filed in this action, including the original complaint and operative FAC. None of the submitted documents are court orders or judgments.

Notice of all 13 documents is DENIED. Under Evidence Code §452(d) these court records could only be noticed as to their existence and filing dates, and that information is not relevant to the material issue before the Court. The request for judicial notice of the FAC itself is also unnecessary as the Court already considers the operative pleading in evaluating the motion to quash.

Defendant’s Motion to Quash Service
Defendant’s motion to quash service pursuant to Family Code §2320 on the sole basis “that this action is a divorce proceeding, over which this court does not have [subject matter] jurisdiction” (Notice of Motion at p. 1:28-2:2, brackets added) is DENIED.

First and foremost, Family Code §2320 has no application to this matter and does not establish a lack of subject matter jurisdiction. The statute states as follows: “(a) Except as provided in subdivision (b) [referring to same sex marriages, not relevant here], a judgment of dissolution of marriage may not be entered unless one of the parties to the marriage has been a resident of this state for six months and of the county in which the proceeding is filed for three months next preceding the filing of the petition.” The statute is “jurisdictional” only in the very narrow sense that a judgment of marriage dissolution cannot be entered by a California court unless one of the spouses satisfies the residency requirement. It has no other function and does not apply to even such similar matters as petitions for legal separation or to have a marriage declared a nullity. (See Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2019) §§3:160-3:161.3.)

The FAC is not a petition for dissolution of marriage and it is also not clearly a “family court matter” as Defendant suggests. The facts alleged in the FAC do not clearly resemble those in Askew v. Askew (1994) 22 Cal.App.4th 942 or Neal v. Sup. Ct. (2001) 90 Cal.App.4th 22, cited by Defendant. (See Memo. of Points & Authorities at p. 5:22-6:12.)

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 Court of Appeal found that by imposing trusts on the properties the civil court “usurped” the power of the family court to characterize and divide the properties. (Id. p. 962.)

In Neal, a wife and husband got divorced, and the judgment required the husband to give the wife a promissory note to equalize division of community property. The husband later filed a civil complaint for declaratory relief, alleging that he had satisfied the indebtedness reflected in the note. The trial court overruled the wife’s demurrer, but the Court of Appeal ordered the trial court to sustain the demurrer to the causes of action against the wife. The Court of Appeal held that the husband was not entitled to pursue as a civil action what was essentially a family court matter. Neal generally charges courts with examining the “substance of claims” to ascertain whether the civil matter is a “rerun” of a family law case. Here that is not apparent as the FAC expressly alleges that the relief Plaintiff seeks against California business entities (an injunction, etc.) is beyond the power of the French Court overseeing the marital dissolution, and is meant to preserve that court’s ability to divide the marital estate in accordance with California law. (See FAC at ¶32.)

More importantly, even if the current action could be characterized as a “rerun” of a “family court matter” it still could not be considered an action for “dissolution of marriage,” the only type of action Family Code §2320 applies to and imposes a residency requirement for, meaning the current motion to quash pursuant to Family Code §2320 would still be denied.

Defendant’s argument (Memo. of Points & Authorities at p. 7:4-24) that the current action is barred by the res judicata/issue preclusion effect of the San Mateo County Superior Court’s October 5, 2010 Order (exhibit 2 to Defendant’s RJN) is not a basis for granting this motion. While a general demurrer lies where the facts alleged in the complaint or matters judicially noticed show that a plaintiff’s claim is barred by res judicata or collateral estoppel, Defendant has not cited any authority for the proposition that it can be the basis for a motion to quash service on the ground that subject matter jurisdiction is lacking due to a failure to comply with Family Code §2320. Indeed, in order for a court to rule that a claim or action was barred by the res judicata or collateral estoppel effect of a prior judgment, the court would necessarily have to have subject matter jurisdiction. Furthermore, exhibit 2 to Defendant’s request to judicial notice—the only evidence submitted in support of this argument—does not establish issue preclusion. The San Mateo court’s order confirms Family Code §2320’s narrow application—only barring a petition for the dissolution of marriage where a residency requirement is not satisfied. Again, the operative FAC is plainly not a petition for dissolution of marriage and Family Code §2320 consequently has no application to it.

To the extent Defendant also appears to argue that the motion to quash should be granted on the basis of “another action pending,” that is also a basis for a demurrer not a motion to quash—and a demurrer on that ground is proper only where the other action is pending in a California court. (Leadford v. Leadford (1992) 6 Cal.App.4th 571, 574.) Defendant fails to demonstrate that there is another action pending between these same parties on the same causes of action in California. “A demurrer raising this objection to a second action between the same parties ‘is strictly limited so that . . . the defendant must show that the parties, cause of action, and issues are identical, and that the same evidence would support the judgment in each case.’ ” (Pitts v. City of Sacramento (2006) 138 Cal.App.4th 853, 856, italics omitted.)

As a more general matter, Defendant’s “lack of subject matter jurisdiction” argument is misguided as, even if this action could be construed to be a “family court matter,” that would not mean this Court lacked subject matter jurisdiction over the claims made in the FAC. Lack of subject matter jurisdiction means a total absence of power by a court to hear or determine a case. (Cummings v. Stanley (2009) 177 Cal.App.4th 493, 503 citing Totten v. Hill (2007) 154 Cal.App.4th 40, 46.) Thus, “[t]he principle of ‘subject matter jurisdiction’ relates to the inherent authority of the court involved to deal with the case or matter before it.” (Harnedy v. Whitty (2003) 110 Cal.App.4th 1333, 1343-44 (Harnedy).) Typically, a California court only lacks subject matter jurisdiction when the action arises from claims where federal courts exercise exclusive jurisdiction. (See, e.g., Lockwood v. Sheppard, Mullin, Richter & Hampton (2009) 173, Cal.App.4th 675, 683-684 [state courts lack subject matter jurisdiction over patent matters]; Ross v. Universal Studios Credit Union (2002) 95 Cal.App.4th 537, 542 [state courts lack subject matter jurisdiction over matters arising out of bankruptcy].)

In making this argument Defendant confuses subject matter jurisdiction with the decision of the superior court to organize itself into multiple departments. There is no separate subject matter jurisdiction between the different departments of a superior court. (B.F. v. Super. Ct. (2012) 207 Cal.App.4th 621, 628 [the distinction between a juvenile department and a probate department is administrative and does not change subject matter jurisdiction].) The division of the superior court into departments is a matter of convenience, and does not impact the subject matter jurisdiction of the court as a whole. (Ibid; Estate of Bowles (2008) 169 Cal.App.4th 684, 695 (Bowles).) The question of whether an action has been filed in the wrong department does not implicate a court’s power to hear the case and act. (See Bowles, supra, 169 Cal.App.4th at p. 695; see also Harnedy v. Whitty, supra, 110 Cal.App.4th at p. 1344.) The Bowles case illustrates this point relative to probate and civil departments. The Bowles court considered the civil department’s jurisdiction to hear a complaint made against trust beneficiaries where the civil complaint was not itself a probate matter but still was related to a petition under Probate Code section 17200. (Bowles, supra, 169 Cal.App.4th at p. 695). The court concluded that subject matter jurisdiction was not really at issue as “[t]he superior court was competent to hear the civil action and had the inherent authority to do so. [Citations omitted].” (Ibid.) Thus, even if a family court action between these parties existed in a California court, the question of which department (civil or family) would be better positioned to hear a particular matter is not a question of subject matter jurisdiction.

As Defendant’s motion is denied, Defendant is ordered to respond to the FAC within 15 days after service of written notice of entry of the Court’s order. (See CCP §418.10(b) & (c).)