Case Name: Temmerman, Cilley & Kohlmann, LLP v. Musumeci

Case No.: 16-CV-298409

  1. Background

This is a breach of contract action brought by plaintiff Temmerman, Cilley & Kohlmann, LLP (?Plaintiff?) against defendant Michael Musumeci (?Defendant?), in both his individual capacity and as trustee of the Musumeci Living Trust Agreement dated December 1, 2011 (?the Trust?).

As alleged in the complaint, on or around May 7, 2014, Plaintiff began providing Defendant with legal services surrounding the Trust per written agreement. From May 2014 through June 2015, Plaintiff rendered legal services to Defendant, accruing fees in the amount of $31,125.12. Plaintiff made several attempts to collect the outstanding legal fees to no avail. Consequently, Plaintiff filed a complaint to recover fees, alleging causes of action for breach of contract and quantum meruit.

Defendant demurs to the complaint.[1] Plaintiff opposes the demurrer.

  1. Request for Judicial Notice

Defendant requests judicial notice of several matters in his memoranda of points of authorities. While reference to the matters to be judicially noticed must appear in the demurrer or memorandum of points and authorities per Code of Civil Procedure section 430.70, the actual request for judicial notice must be made in a separate document listing the specific matters for which notice is requested and provide the court and each party with a copy of the material to be noticed. (Cal. Rules of Court, rule 3.1113(l).) Defendant failed to provide the required separate document identifying the matters he seeks to have noticed, making his request for notice defective.

In addition to the procedural defect, the matters to be noticed are neither relevant nor proper subjects of judicial notice. Judicial notice may only be taken of matters authorized or required by law. (Evid. Code ? 450.) Proper subjects of judicial notice are limited to those areas enumerated in Evidence Code sections 451 and 452. Further, any matter a party seeks to be judicially noticed must be relevant. (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on other grounds by In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.) Almost all of the items Defendant seeks in question do not fall within the categories of judicially noticeable matters. Additionally, these matters are not relevant to the issue raised by the demurrer.

For these reasons, Defendant?s request for judicial notice is DENIED.

  1. Demurrer

Defendant demurs to the complaint on the ground this Court lacks subject matter jurisdiction over the matter. [2] ?(See Code Civ. Proc., ?? 430.10, subd. (a).)[3]

As an initial matter, Defendant failed to file a declaration demonstrating any attempts to meet and confer prior to filing this demurrer. Before filing a demurrer, the demurring party must contact the other party to identify specific causes of action the demurring party believes are subject to demurrer and identify the legal theories in support of that proposition in an effort to informally resolve the matters to be raised in the demurrer. (Code Civ. Proc., ? 430.41, subd. (a)(1).) If the parties are unable to resolve the objections, the demurring party must file a declaration with the demurrer stating that he or she met and conferred with the other side and they were unable to reach an agreement. (Code Civ. Proc., ? 430.41, subd. (a)(3).)The Court admonishes Defendant to comply with these requirements in the future.

Defendant argues this court lacks subject matter jurisdiction because the fees for legal services which Plaintiff seeks were in connection with Plaintiff?s representation of him in a probate matter concerning the Trust. Defendant contends that Local Probate Rule 20 mandates that this case be ?attached to and part of? the probate matter, removing subject matter jurisdiction from this Court.

Local Probate Rule 20 governs disputes as to attorney fees in probate cases. (Super. Ct. Santa Clara County, Local Probate Rule 20.) It outlines the specific procedures the probate department and litigants follow to resolve a fee dispute. (Ibid.) There is no language in Rule 20 implicating the subject of jurisdiction.

While not especially clear, Defendant?s argument seems to derive from Local Probate Rule 1(A), which was uncited. Rule 1(A) states the probate department will hear, inter alia, all matters concerning the Probate Code or related matters. (Super. Ct. Santa Clara County, Local Probate Rule 20.) Defendant suggests that because matters related to the Probate Code such as an action for attorney fees for work done on a probate matter are assigned to the probate department, this Court – as a civil department – lacks subject matter jurisdiction to hear this case.

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.]) 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].)

Defendant mistakes the question of 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. Superior 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?)) Thus, 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. (Bowles, supra, 169 Cal.App.4th at p. 695.) The Bowles case illustrates this point relative to probate and civil departments.

In Bowles, the plaintiff filed a civil complaint seeking damages against the beneficiaries of a trust for inducing an elderly trustee to breach the trust for their gain. (Bowles, supra, 169 Cal.App.4th at p. 689.) As pertinent here, the court considered the civil department?s jurisdiction to hear the matter because the civil complaint was not itself a probate matter but still was related to a petition under Probate Code section 17200. (Id. 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.) The court analyzed Probate Code section 17000, which governs jurisdiction over matters involving a trust, and observed section 17000 only permits the probate department to exercise exclusive jurisdiction over proceedings concerning the internal affairs of trusts. (Ibid.; See also Prob. Code, ? 17000, subd. (a).) For matters arising out of the existence of trusts, or by creditors of trusts, and other actions and proceedings of trusts, the court noted a superior court civil department and probate department share concurrent jurisdiction. (Bowles, supra, 169 Cal.App.4th at p. 695; See also Prob. Code, ? 17000, subd. (b)(1)-(3).) The court stated the ultimate determination over which department can hear a matter depends on the superior court?s local rules. (Bowles, supra, 169 Cal.App.4th at p. 696).

As with the Bowles case, the question of subject matter jurisdiction in the case at bench is not implicated by the question of which department should hear a matter. Therefore, Defendant has not demonstrated that this Court lacks subject matter jurisdiction over this case.

Thus, for the reasons discussed above, Defendant?s demurrer on the basis of lack of subject matter jurisdiction is OVERRULED. In rendering this decision, this Court makes no determination as to whether it should transfer the matter to the probate department as that issue was not before this Court and has not been fully briefed.

[1] Defendant is self-represented and brings the instant demurrer for both himself in an individual capacity and as trustee to the Trust. There are limited circumstances under which a trust may be represented in litigation by a self-represented trustee. (See Aulisio v. Bancroft (2014) 230 Cal.App.4th 1516, 1525.) Specifically, the self-represented trustee must be the sole settlor, trustee, and beneficiary of the trust. (Ibid.) The Court cannot ascertain from the record whether Defendant is appropriately appearing without counsel relative to the Trust. At the case management conference scheduled for November 29, 2016, Defendant should be prepared to address this subject.

[2] Defendant filed a revised notice of demurrer and demurrer with an accompanying memorandum of points and authorities after Plaintiff filed its opposition. Two days later, Defendant filed an amended and revised notice of demurrer and demurrer. Defendant included a new request for judicial notice of nine new items with nine other items that appear duplicative of the original request for judicial notice. These unauthorized filings do not contain any new or different argument. They also do not respond to Plaintiff?s opposition. The Court notes Defendant also failed to file proofs of service. The Court admonishes Defendant to follow the procedural rules for filing documents with this Court in the future.

[3] Defendant cites Code of Civil Procedure section 430.30 but quotes from section 430.10, subdivision (a) as his authority.