2018-00227947-CU-BC

Vincent Ted Pang vs. Kalin Christine Williams

Nature of Proceeding: Motion to Dismiss

Filed By: Williams, Kalin

Defendant’s motion to dismiss the complaint is ruled on as set forth, below:

Self-represented defendant Kalin Williams motion to dismiss the complaint is made “pursuant to Rule 12(b)(6) for failure to state a cause of action, Rule 56(a) lack of subject matter jurisdiction, for violating the doctrine of res judicata, and for other grounds…” (Motion, p. 1.) Citation to the federal rules of civil procedure do not inform this Court’s law and motion practice, which is governed by State statutes, set forth in the Code of Civil Procedure and the Rules of Court, inter alia. Nonetheless, this does not, by itself, mandate denial of the motion.

Defendant Kalin Williams requests the court take judicial notice of several documents filed with the Seminole County Family Court, Case No. 2016DR004812, in the State of Florida. The Court may take judicial notice of the official acts of the legislative, executive, and judicial branches of the United States and any state (see, e.g., Butler-Rupp v. Lourdeaux (2007) 154 Cal. App. 4th 918, 926.) Here, however, there is no attachment of the documents sought to be noticed. California Rules of Court, Rule 3.1306(c) provides that a party requesting judicial notice of material must provide the

court and each party with a copy of the material. This Court has no access to the material sought to be noticed. In this regard, a self-represented party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. (Williams v. Pacific Mutual Life Ins. Co. (1986) 186 Cal. App. 3d 941, 944.) Indeed, a party may choose to act as his or her own attorney, but “such a party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys.” (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.) As with attorneys, in propria persona litigants must follow correct rules of procedure. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) The request for judicial notice is denied.

On the merits, defendant’s motion must be denied. As the Plaintiff’s opposition notes, a motion to dismiss for failure of the complaint to state a claim upon which relief can be granted, is substantially the same as a demurrer for failure of a pleading to state a cause of action. California authority holds that a motion to dismiss may serve the same function as a general demurrer. A nonstatutory motion to dismiss serves the same function as a general demurrer to challenge a complaint when it fails to state facts sufficient to constitute a cause of action. (Barragan v. Banco BCH (1986) 188 Cal.App.3d 283, 300.)

The purpose of a demurrer is to test the legal sufficiency of a claim. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.) The pleading rules applicable to demurrers are now familiar and well established. Pleadings are to be liberally construed. (Code Civ. Proc. § 452) A demurrer admits the truth of all material facts properly pled and the sole issue raised by a general demurrer is whether the facts pled state a valid cause of action – not whether they are true. (Serrano v. Priest (1971) 5 Cal. 3d 584, 591.)

A demurrer may be sustained only if the complaint lacks any sufficient allegations to entitle the plaintiff to relief. (Financial Corp. of America v. Wilburn (1987) 189 Cal. App. 3d 764, 778.) “Plaintiff need only plead facts showing that he may be entitled to some relief . . . , we are not concerned with plaintiff’s possible inability or difficulty in proving the allegations of the complaint.” (Highlanders, Inc. v. Olsan (1978) 77 Cal. App. 3d 690, 696-697.) “[Courts] are required to construe the complaint liberally to determine whether a cause of action has been stated, given the assumed truth of the facts pleaded.” (Picton v. Anderson Union High School Dist. (1996) 50 Cal. App. 4th 726.)

The verified complaint filed in this action alleges causes of action for breach of written contract, breach of oral contract, specific performance, fraud (intentional misrepresentation), negligent misrepresentation, promissory fraud, resulting trust, declaratory relief, and conversion.

While the memorandum of points and authorities filed by defendant is difficult to follow, disjointed and confusing, the Court will attempt to address the salient legal points.

Res Judicata

As Williams argues, given Plaintiff’s dissolution action in Florida, “Plaintiff’s California claims should be dismissed under the doctrine of res judicata, specifically claim preclusion.”

As the California Supreme Court has explained, “‘Res judicata’ describes the

preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Under the doctrine of res judicata, for example, if a plaintiff prevails in an action, the cause is merged into the judgment and may not be asserted in a subsequent lawsuit; a judgment for the defendant serves as a bar to further litigation of the same cause of action.” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896-897, fn. omitted.) Thus, “Claim preclusion ‘prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.’ [Citation.] Claim preclusion arises if a second suit involves: (1) the same cause of action (2) between the same parties (3) after a final judgment on the merits in the first suit. [Citations.] If claim preclusion is established, it operates to bar relitigation of the claim altogether.” (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824, italics omitted.) “Claim preclusion, the ‘primary aspect’ of res judicata, acts to bar claims that were, or should have been, advanced in a previous suit involving the same parties.” (Ibid.) “The related concept of collateral estoppel will preclude relitigation of an issue of fact or law necessarily decided in a prior judgment in a subsequent suit involving a party to the first case.” (J.R. Norton Co. v. Agricultural Labor Relations Bd. (1987) 192 Cal. App. 3d 874, 884.)

Here, while not addressed in the Opposition [indeed, many of the defendant’s arguments are not addressed in the Opposition], the complaint does not show relitigation of the same causes of action in the Florida dissolution action, nor is there any showing that there has been a final judgment in the Florida dissolution action. The motion on the ground of res judicata is overruled/denied.

Plea in Abatement

Procedural irregularities aside, and there are many, it bears noting a plea in abatement pursuant to CCP section 430.10(c) may be made by demurrer when there is another action pending between the same parties on the same cause of action. Lawyers Title Ins. Corp.v Superior Court (1984) 151 C.A.3d 455. In determining whether the causes of action are the same for purposes of pleas in abatement, the rule is that such a plea may be maintained only where a judgment in the first action would be a complete bar to the second action. Lord v Garland (1946) 27 C.2d 840. This defect does not appear on the face of the complaint. The demurrer/motion is therefore denied.

Exhaustion of Administrative Remedies

As argued by the motion, “Plaintiff’s claims are barred because “Plaintiffs’ claims, and those of the putative class, have failed to exhaust their administrative

remedies.”” (Points and Authorities, p. 16, ll. 14-16). This is not a class action, and no administrative remedies are apparent from the pleading. The motion/demurrer is therefore denied.

Plaintiff Fails to Address What Other Remedy of Law Might Apply

The argument in this regard is unintelligible. And, further, injunctive relief is not sought in the complaint. Defendant’s argument lacks logic and cohesion. While the “heading” states the “complaint should be dismissed”, the argument states “Thus, the plaintiff has fallen well short of alleging this cause of action “as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint.” (p. 17, ll. 14-16.) No cause of action is addressed under this heading. The

reference to CCP sec. 438 [judgment on the pleadings] as a basis does not advance defendant’s arguments.

Lack of Subject Matter Jurisdiction

Defendant argues the Court lacks subject matter jurisdiction. In support of this conclusion, defendant notes “This issue between these parties is arising out of a marriage, and their subsequent dissolution. Therefore, this matter belongs in a family law court–NOT a civil court…” (p. 18, ll. 19-21).

As argued by Plaintiff, the court in which the action is filed must be competent under California law to render a judgment; i.e. the state constitution or statutes must empower it to adjudicate the type of lawsuit involved and to render a judgment for the amount in controversy. Marriage of Jensen (2003) 114

5 Cal. App. 4th 587, 593. The principle of ‘subject matter jurisdiction’ relates to the inherent authority of the court involved to deal with the case or matter before it” Varian Med Systems, Inc. v. Delfino (2005)35 Cal. 4th 180, 196. There are three types of subject matter jurisdiction: general jurisdiction, limited jurisdiction and exclusive Jurisdiction, which means that only a particular court can decide a case. As plaintiff argues, in this matter, the California superior courts are general jurisdiction courts and have the ability to hear and decide a wide range of cases. Therefore, this Court has subject matter jurisdiction based on the pleading before the Court.

Defendant’s motion further goes on to address “specific causes of action” in the Complaint. Again it bears noting that a demurrer tests the pleading alone, and not the evidence or the facts alleged. City of Atascadero v. Merill Lynch, Pierce, Fenner & Smith. Inc. (1998) 68 Cal.App.4th 445, 459. Courts “assume the truth of the complaint’s properly pleaded or implied factual allegations.” Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074. On a demurrer, a court’s function is limited to testing the legal sufficiency of the complaint.

As to the anticipatory breach, defendant addresses factual concerns not properly joined on demurrer or a motion to dismiss. The same is essentially true on the breach of oral contract causes of action. As to “specific performance”, factual claims abound in the motion; as noted, the papers which defendant seek to have this court notice are absent and therefore cannot be considered. As to the fraud counts (intentional and negligent) and promissory fraud the complaint and the allegations incorporated by reference are adequate at this stage of the pleadings. A party may plead alternative counts in a complaint.

Moreover, Plaintiff, for pleading purposes, has adequately alleged a resulting trust. The Court reads the allegations as alleging a constructive trust; and it bears observing that “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38. The Court determines whether the complaint alleges an entitlement to a constructive trust. (Douglas v. Superior Court (1989) 215 Cal.App.3d 155, 160.) In this regard, “A constructive trust is an involuntary equitable trust created by operation of law as a remedy to compel the transfer of property from the person wrongfully holding it to the rightful owner.” (Communist Party v. 522 Valencia, Inc. (1995) 35 Cal.App.4th 980, 990.) “One who gains a thing by fraud . . . the violation of a trust, or other wrongful act, is . . . an involuntary trustee of the thing gained, for the benefit of the

person who would otherwise have had it.” (Civ. Code, § 2224.) “[A] constructive trust may be imposed in practically any case where there is a wrongful acquisition or detention of property to which another is entitled.” (Weiss v. Marcus (1975) 51 Cal.App.3d 590, 600.)

Finally, defendant argues that the count for declaratory relief fails to state a cause of action. A party may obtain declaratory relief with respect to the rights and duties of the parties to a written contract if there is an actual controversy as to such rights and duties. (§ 1060.) However, a court may properly refuse to grant declaratory relief if such relief “is not necessary or proper at the time under all the circumstances.” (§ 1061.) “ ‘Declaratory relief operates prospectively, serving to set controversies at rest. If there is a controversy which calls for a declaration of rights, it is no objection that past wrongs are also to be redressed; but there is no basis for declaratory relief where only past wrongs are involved. Hence, where there is an accrued cause of action for an actual breach of contract or other wrongful act, declaratory relief may be denied. [Citations.]’ [Citation.]” (Baldwin v. Marina City Properties, Inc. (1978) , 79 Cal.App.3d 393, 407.) Thus, a declaratory relief action is not proper where it seeks only a declaration regarding past wrongs, without any “occasion to define respective rights which would govern the future conduct of the parties.” (Travers v. Louden (1967) 254 Cal.App.2d 926, 932.) It is often stated that declaratory relief is not an independent cause of action but a form of recovery. See McDowell v. Watson, (1997) 59 Cal. App. 4th 1155, 1159; see also Rosenfeld v. JPMorgan Chase Bank, N.A., 732 F. Supp. 2d 952, 975 (N:D. Cal. 2010) (dismissing plaintiffs cause of action for declaratory relief because it is a remedy and not a cause of action). Thus, Plaintiff is not entitled to declaratory relief absent an independent viable claim. Lane v. Vitek Real Estate Indus. Group, 713 F. Supp. 2d 1092, 1101 (E.D. Cal. 2010); see also Phipps v. Wells Fargo Bank, N.A., 2011 U.S. Dist. LEXIS 10550 at *50-51 (E.D. Cal. Jan. 27, 2011). Here, Plaintiff is seeking declaratory relief that operates prospectively and may avoid multiplicity of litigation. Further, “while the court may refuse to entertain the action where “the rights of the complaining party have crystallized into a cause of action for past wrongs, [and] all relationship between the parties has ceased to exist . .

.” [citation] it may not exclude the action where the alternative remedy of suing upon the matured breach is not as “speedy and adequate or as well suited to the plaintiff’s needs as declaratory relief.” [Citation.] A lawsuit for breach of contract is neither as speedy and adequate nor as well suited as declaratory relief to the plaintiff’s needs where, despite the breach, a relationship between the parties continues so that a declaration may guide their future conduct [citation], or where the use of declaratory relief will avoid a multiplicity of suits that may ensue if a different remedy is pursued [citation.] (Warren v. Kaiser Foundation Health Plan, Inc. (1975) 47 Cal.App.3d 678, 683-684.) The Court finds the requested relief may guide the future conduct of the parties and, therefore, the controversy is ripe for adjudication. The demurrer/motion to dismiss on this basis are overruled.

The notice of motion does not provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06(D). Counsel for moving party is directed to contact counsel for opposing party forthwith and advise counsel of Local Rule 1.06 and the Court’s tentative ruling procedure. If counsel for moving party is unable to contact counsel for opposing party prior to hearing, counsel for moving party shall be available at the hearing, in person or by telephone, in the event opposing party appears without following the procedures set forth in Local Rule 1.06(B).

The minute order is effective immediately. No formal order pursuant to CRC Rule

3.1312 or further notice is required.