Meenakshi Patil v. Amaresh Malipatil et al.

In support of the demurrer, Defendant has submitted a request for judicial notice of six documents, attached as exhibits A-F to the request. The only specific basis stated for taking notice of any document is Evidence Code section 452, subdivision (d) (court records). The court takes judicial notice of exhibit A, a copy of the original complaint, under Evidence Code section 452, subdivision (d). The court takes judicial notice of exhibits C through E, copies of Indian court records, under Evidence Code section 452, subdivision (h). (TSMC North America v.

Semiconductor Manufacturing International Corp. (2008) 161 Cal.App.4th 581, 597, fn. 7 [taking judicial notice of Beijing court’s jurisdictional ruling “and the parties’ related filings” pursuant to the same]; In re Marriage of Taschen (2005) 134 Cal.App.4th 681, 688, fn. 3 [taking judicial notice of German court judgment pursuant to the same].) While the court 10

takes judicial notice of these four exhibits, the court does not take notice of the truth of any matters stated therein. (Oh v. Teachers Ins. & Annuity Assn. of America (2020) 53 Cal.App.5th 71, 81 [truth of contents of court records cannot be judicially noticed].) The request is denied as to exhibits B and F. Judicial notice of exhibit B (marriage certificate) is denied as unnecessary because the FAC admits the parties are currently married. Judicial notice of exhibit F (copy of mail addressed to defendant) is denied because the document is neither a court record nor proof of Defendant’s residency.

The court did not consider the Plaintiff’s objection to the request for judicial notice or Defendant’s reply. There is no authority for the filing of separate briefs in support of or in opposition to a request for judicial notice.

LEGAL STANDARD FOR DEMURRER

In ruling on a demurrer, the court accepts as true all properly pleaded material factual allegations but does not accept as true contentions, deductions, or conclusions of fact or law. (Valero v. Spread Your Wings, LLC (2023) 88 Cal.App.5th 243, 253.) Code of Civil Procedure section 430.60 states that “[a] demurrer shall distinctly specify the grounds upon which any of the objections to the complaint, cross-complaint, or answer are taken. Unless it does so, it may be disregarded.” The California Rules of Court also require that the demurrer itself (distinct from a supporting memorandum) specify the target of any objection and the grounds. (See Cal.

Rules of Court, rules 3.1103(c), 3.1112(a), 3.1320(a) [“Each ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses.”].)

Where a demurrer is to an amended complaint or cross-complaint, the court “may consider the factual allegations of prior complaints, which a plaintiff may not discard or avoid by making contradictory averments, in a superseding, amended pleading.” (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034, internal quotations omitted (Berg & Berg); see also Doe v. United States Youth Soccer Assoc. (2017) 8 Cal.App.5th 1118, 1122.)

The court cannot consider extrinsic evidence when ruling on a demurrer. That includes declarations. The court has considered the declaration from counsel for Defendant only to the extent that it discusses required meet and confer efforts, and the court has not considered the attached exhibits. Finally, “points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before.” (Proctor v. Vishay Intertechnology, Inc. (2013) 213 Cal.App.4th 1258, 1273.)

DISCUSSION

Defendant demurs to all causes of action in the FAC on the grounds that the court lacks subject matter jurisdiction; that there is another action pending (the India court actions); that all causes of action are time-barred by Code of Civil Procedure section 338; and that all causes of action fail to state sufficient facts or support the request for punitive damages. (Notice of Demurrer and Demurrer at p. 1:18-25.)

Subject Matter Jurisdiction

Defendant demurs to the entire FAC and each cause of action on the ground that this court lacks subject matter jurisdiction because all claims would have to be heard by the Family division of this court. 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.) “The 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 lacks subject matter jurisdiction only when the action arises from claims where federal courts exercise exclusive jurisdiction. (E.g., Lockwood v. Sheppard, Mullin, Richter & Hampton (2009) 173, Cal.App.4th 675, 683-684 [patent cases]; Ross v. Universal Studios Credit Union (2002) 95 Cal.App.4th 537, 542 [bankruptcy proceedings].)

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. (Bowles, supra, 169 Cal.App.4th at p. 695; see also Harnedy v. Whitty, supra, 110 Cal.App.4th at p. 1344 [“[A] nonprobate department does not lack fundamental jurisdiction over a probate matter.”].)

California courts have subject matter jurisdiction over marital dissolution proceedings. The court has subject matter jurisdiction.

Statute of Limitations

Defendant contends that the FAC and each cause of action is time-barred under Code of Civil Procedure section 338.

“A complaint showing on its face the cause of action is barred by the statute of limitations is subject to general demurrer.” (Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 Cal.App.4th 990, 995.) The running of the statute must appear clearly and affirmatively from the dates alleged—it is not enough that the complaint might be barred. (Committee for Green Foothills v. Santa Clara County Board of Supervisors (2010) 48 Cal.4th 32, 42.) “Generally, the limitations period starts running when the last element of a cause of action is complete.” (NBCUniversal Media, LLC v. Super. Ct. (2014) 225 Cal.App.4th 1222, 1231.)

The statute of limitations for fraud is three years. (Code Civ. Proc., § 338, subd. (d).) Fraud does not accrue “until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.” (Id.) Breach of fiduciary duty is also subject to a three-year statute of limitations when it is based on alleged fraud. (American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1479.) Conversion is also subject to a three-year statute of limitations. (AmerUS Life Ins. Co. v. Bank of America, N.A. (2006) 143 Cal.App.4th 631, 639 [Code Civ. Proc., § 338, subd. (c), applies to claims for the conversion of personal property].) And “when the defendant in a conversion action fraudulently conceals the relevant facts or where the defendant fails to disclose such facts in violation of his or her fiduciary duty to the 12

plaintiff[,] ‘the statute of limitations does not commence to run until the aggrieved party discovers or ought to have discovered the existence of the cause of action for conversion.’” (Id. at p. 639.)

The FAC alleges that Plaintiff did not learn of the alleged misconduct forming the basis for this lawsuit until December 2022. (FAC at ¶¶ 16-20, 24-25, 31, 38.) Other dates alleged in the complaint do not clearly and affirmatively establish any earlier accrual of the causes of action. Because the original complaint was filed within three years of December 2022, none of the causes of action are time-barred on their face. Plaintiff was not required to plead delayed discovery. (See Mills v. Forestex Co. (2003) 108 Cal App 4th 625, 641 [“When a plaintiff relies on a theory of fraudulent concealment, delayed accrual, equitable tolling, or estoppel to save a cause of action that otherwise appears on its face to be time-barred, he or she must specifically plead facts which, if proved, would support the theory.”].)

And the fourth cause of action for accounting is typically subject to a four-year statute of limitations. (Code Civ. Proc., § 343.) Even if the accounting claim is deemed to arise from the fraud cause of action, the demurrer would not be sustained on this ground.

The demurrer to the FAC and each cause of action on the ground that they are timebarred under the three-year statute of limitation in Code of Civil Procedure section 338 is overruled.

Another Action Pending – Plea in Abatement

A party may demur on the ground “[t]here is another action pending between the same parties on the same cause of action.” (Code Civ. Proc., § 430.10, subd. (c).) A demurrer on this ground is also known as a plea in abatement. (County of Santa Clara v. Escobar (2016) 244 Cal.App.4th 555, 564.) “To ‘abate’ a right of action is to suspend its prosecution due to some impediment that, without defeating the underlying cause of action, prevents the present maintenance of [the] suit.” (Ibid., italics omitted.) A demurrer on this statutory ground is a request to suspend or stay a lawsuit based on the pendency of another lawsuit. (Ibid.)

This ground for demurrer arises from the prohibition of splitting a cause of action as defined by the primary right theory. (Hamilton v. Asbestos Corp. (2000) 22 Cal.4th 1127, 1145-1147.) “The primary right theory is a theory of code pleading that has long been followed in California.” (Crowley v. Katleman (1994) 8 Cal.4th 666, 681 (Crowley).) “It provides that a ‘cause of action’ is [composed] of a ‘primary right’ of the plaintiff, a corresponding ‘primary duty’ of the defendant, and a wrongful act by the defendant constituting a breach of that duty.” (Ibid.) “The most salient characteristic of a primary right is that it is indivisible: the violation of a single primary right gives rise to but a single cause of action.” (Ibid.)

A plaintiff may not “divide a primary right and enforce it in two suits.” (Ibid.) “The theory prevents this result by either of two means: (1) if the first suit is still pending when the second is filed, the defendant in the second suit may plead that fact in abatement (Code Civ. Proc., § 430.10, subd. (c); [citation]); or (2) if the first suit has terminated in a judgment on the merits adverse to the plaintiff, the defendant in the second suit may set up that judgment as a bar under the principles of res judicata.” (Crowley, supra, 8 Cal.4th at p. 682.)

No Mandatory Abatement

A court must abate a second action when the demurring party shows: “‘(1) That both suits are predicated upon the same cause of action; (2) that both suits are pending in the same jurisdiction; and (3) that both suits are contested by the same parties.’ ” (Conservatorship of Pacheco (1990) 224 Cal.App.3d 171, 176. “Where a demurrer is sustained on the ground of another action pending, the proper order is not a dismissal, but abatement of further proceedings pending termination of the first action.” (Plant Insulation Co. v.

Fibreboard Corp. (1990) 224 Cal.App.3d 781, 788 (Plant Insulation).) “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.” (Id. at pp. 787-788.) “Abatement of the second action is a matter of right. A trial court has no discretion to allow the second action to proceed if it finds the first involves substantially the same controversy between the same parties.” (Leadford v.

Leadford (1992) 6 Cal.App.4th 571, 574.)

Here, the divorce, support, and child custody proceedings pending in India are not pending in the same jurisdiction as this case. Abatement as a matter of right is not available.

Discretionary Abatement

Even when abatement is not mandatory, a “California judge has discretion to stay the trial in this state’s court pending the outcome of a foreign action.” (Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 47-48 (Fesbinder).) “ ‘The pendency of the action in [a foreign country] is not a bar to the institution of another action between the same parties and for the same cause of action in the courts of California, nor was it the duty of the Superior Court to stay the action pending the determination of the earlier suit in [the foreign country], even though the entire controversy might be there disposed of.

As a matter of comity, although not a matter of right, the court had power to continue the case if the circumstances warranted such action.’ ” (Ibid.) “ ‘ “The reason why the pendency of an action in the courts of one sovereignty will not abate an action in the courts of another sovereignty is twofold: First, because a foreign judgment depending on foreign law may be unjust, and could not be enforced beyond the jurisdiction of the foreign court without a new suit on it as only prima facie evidence; and second, and chiefly, because the remedy in the country where the last suit is brought may be more adaptable and safe, and means for effectuating a judgment may be found in the latter and not in the former country.” ’ ” (Ibid.)

Federal courts have a similar policy. “The international abstention doctrine allows a court to stay or dismiss an action where parallel proceedings are pending in the court of a foreign nation. International abstention is rooted in concerns of international comity, judicial efficiency and fairness to litigants. In short, the doctrine allows a court to abstain from hearing an action if there is a first-filed foreign proceeding elsewhere.” (Supermicro Computer Inc. v. Digitechnic (N.D. Cal. 2001) 145 F.Supp.2d 1147, 1149, internal citations omitted.)

Here, more than the “initiatory steps” described in Fesbinder have taken place in another jurisdiction. The FAC and the judicially noticed court records establish that the parties are currently married and are parties to divorce, support, and child custody proceedings in India that began before this action was filed and are still pending. The FAC also alleges that the wrongdoing by Defendant supporting all causes of action in this lawsuit is “material to the matrimonial relationship and to the disbursement of funds to the parties during the dissolution proceeding.” (FAC, ¶ 23.) 14

California law disfavors “civil actions which are really nothing more than reruns of a family law case.” (Neal v. Superior Court (2001) 90 Cal.App.4th 22, 25 (Neal); see also Burkle v. Burkle (2006) 144 Cal.App.4th 387, 391 (Burkle).) “[F]amily law cases should not be allowed to spill over into civil law, regardless of whether the family law matter may be characterized as an action for fraud [citation], malicious prosecution [citation], or securities law violation [citation]. 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.” (Neal, supra, 90 Cal.App.4th at p. 25.)

The FAC does not allege that the court in India currently hearing the divorce, support, and child custody proceedings between the parties lacks the authority to consider or issue orders binding on both parties regarding the issues raised in the California lawsuit. While the Uniform Foreign-Country Money Judgements Recognition Act (UFMJRA; Code Civ. Proc., § 1713 et seq.) does not apply to judgments for divorce, support, or maintenance, “[c]omity remains the basis for recognizing foreign judgments not covered by the act, such as domestic relations judgments.” (Manco Contracting Co. (W.L.L) v. Bezdikian (2008) 45 Cal.4th 192, 198.)

Given the circumstances presented here, the court will exercise its discretion to sustain the demurrer on this ground and stay this action pending either: (1) the conclusion of the divorce, support, and child custody proceedings between the parties in India, or (2) the granting of a noticed motion to lift the stay supported by judicially noticeable material demonstrating that the court in India cannot exercise jurisdiction over the parties’ bank accounts and real property located in California or cannot order the parties to dispose of that property as part of the dissolution, support, and custody matters before it.

Given the decision to stay the action, the court does not reach Defendant’s remaining grounds for demurrer.

CONCLUSION

Defendant’s request for judicial notice is granted in part and denied in part.

Defendant’s demurrer to the entire FAC and each cause of action on the ground that the court lacks subject matter jurisdiction is overruled.

Defendant’s demurrer to the entire FAC and each cause of action on the ground that they are all time-barred under Code of Civil Procedure section 338 is overruled.

Defendant’s demurrer to the entire FAC and each cause of action on the ground of another action pending between the parties in India is sustained, and the case is stayed pending the conclusion of the earlier filed actions in India.

The court will hold a case status review regarding the stay on July 22, 2027, at 11:00 a.m. in Department 10.

The court will prepare the order. - oo0oo - 15

Calendar Line 8 Case Name: Services, Immigrant Rights & Educ. Network et al. v. Paul Joseph et al.