Sand v. Sand
30-2016-00865283

Defendant Elizabeth Rae Sand’s demurrer to Plaintiff Kirk Robert Sand’s Complaint, is sustained without leave to amend.

Defendant’s request for judicial notice filed concurrently with his demurring papers and plaintiff’s request for judicial notice are granted.  (Evid. Code, § 452, subd. (d).)  However, the Court may not take judicial notice of the truth of the matter asserted in the documents.  (Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 659-660.)

Defendant’s request for judicial notice filed concurrently with his reply is denied.  (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538 [“The general rule of motion practice…is that new evidence is not permitted with reply papers…‘[T]he inclusion of additional evidentiary matter with the reply should only be allowed in the exceptional case …’ and if permitted, the other party should be given the opportunity to respond.”])

The Family Law Court acquired jurisdiction to dissolve the parties’ marriage and to divide the parties’ community property.  “After a family law court acquires jurisdiction to divide community property in a dissolution action, no other department of a superior court may make an order adversely affecting that division.”  (Askew v. Askew (1994) 22 Cal.App.4th 942, 961.)  Civil actions that are “nothing more than reruns of a family law case” are disfavored.  (Neal v. Superior Court (2001) 90 Cal.App.4th 22, 25.)

“[W]here a proceeding has been duly assigned for hearing and determination to one department of the superior court …, and the proceeding so assigned has not been finally disposed of therein or legally removed therefrom, it is beyond the jurisdictional authority of another department of the same court to interfere with the exercise of the power of the department to which the proceeding has been so assigned.”  (In re Marriage of Schenck (1991) 228 Cal.App.3d 1474, 1483 [citing Williams v. Superior Court (1939) 14 Cal.2d 656]; seeBurkle v. Burkle (2006) 144 Cal.App.4th 387, 393 [“[w]hen a dissolution proceeding is pending, neither party to that proceeding has the right to file a separate civil action to enforce an interim support order issued in the dissolution proceeding.”]; Dale v. Dale (1998) 66 Cal.App.4th 1172, 1183, superseded by statute on other grounds [“[W]hen a dissolution proceeding is pending in the family court, another department of the superior court may not act so as to interfere with the family court’s exercise of its powers in that proceeding.”])

To determine whether this matter is within the Family law Court’s jurisdiction, the Court should look at the substance of the claims.  (Neal v. Superior Court, supra, 90 Cal.App.4th at p. 25 [Family law cases “should not be allowed to spill over into civil law…Almost all events in family law litigation can be reframed as civil law actions if a litigant wants to be creative with various causes of action. It is therefore incumbent on courts to examine the substance of claims, not just their nominal headings.”])  Claims related to characterization of property should be heard in the Family Law Court.  (Askew v. Askew, supra, 22 Cal.App.4th at p. 962 [finding the trial erred in not dismissing plaintiff’s complaint on demurrer and reversed a judgment entered in favor of plaintiff].)

The dissolution proceeding between the parties is still pending.  The claims in this action relates to the parties’ interests in their property, which the Family Law Court has the jurisdiction to characterize.  Plaintiff contends he loaned money to Defendant.  That money was obtained by selling community property, the profits of which were split between the parties.  Because there is no divorce decree, the Family Court would need to determine whether the money loaned to Defendant was Plaintiff’s separate property.  All of the causes of action, including those alleging fraud of some fashion, are based on this loan.  This Court is without jurisdiction to adjudicate the claims raised in Plaintiff’s complaint.  Accordingly, the demurrer is sustained without leave to amend.

In light of the ruling to sustain the demurrer, Defendant’s motion to strike is moot.

The 11/21/2016 Case Management Conference is hereby vacated.

Defendant shall give notice of the ruling.