California Court of Appeal Jun 17, 2014 No. E056953Unpublished
Filed 6/17/14 Jones v. Hilliker CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
LINDA JONES,
Plaintiff and Appellant, E056953
v. (Super.Ct.No. RIC1120460)
DOUGLAS R. HILLIKER, OPINION
Defendant and Respondent.
APPEAL from the Superior Court of Riverside County. Paulette Barkley,
Cal.App.4th at p. 1147.) [¶] For these reasons, we decline to follow Dale and conclude
that [the plaintiff] is incapable of stating a cause of action in tort for concealment of
community assets.” (Kuehn, supra, 85 Cal.App.4th at p. 834.)
We agree. Accordingly, regardless of the scope of the family law court’s
continuing jurisdiction, the demurrer was properly sustained as to Jones’s tort claims.
The question then becomes whether the court abused its discretion by sustaining the
demurrer without leave to amend.
Jones Has Not Shown That She Could Amend the Complaint to State a Cause of
Action
When a demurrer is sustained without leave to amend, “‘we decide whether there
is a reasonable possibility that the defect can be cured by amendment: if it can be, the
trial court has abused its discretion and we reverse; if not, there has been no abuse of
discretion and we affirm. [Citations.] The burden of proving such reasonable possibility
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is squarely on the plaintiff.’ [Citations.]” (Zelig v. County of Los Angeles (2002) 27
Cal.4th 1112, 1126.) Although the general rule is that allegations of a complaint are to be
liberally construed with a view to substantive justice between the parties and that
amendment of the complaint should be allowed if the facts alleged state a cause of action
on any legal theory (see Careau & Co. v. Security Pacific Business Credit, Inc. (1990)
222 Cal.App.3d 1371, 1387-1388), “there is nothing in the general rule of liberal
allowance of pleading amendment which ‘requires an appellate court to hold that the trial
judge has abused his discretion if on appeal the plaintiffs can suggest no legal theory or
state of facts which they wish to add by way of amendment.’ [Citation.] The burden is
on the plaintiffs to demonstrate that the trial court abused its discretion and to show in
what manner the pleadings can be amended and how such amendments will change the
legal effect of their pleadings.” (Ibid.)
As discussed in Kuehn, supra, 85 Cal.App.4th 824, there is a traditional common-
law cause of action in equity to set aside a judgment which was procured by means of
extrinsic fraud. (Id. at p. 831.) Intentional concealment of a community asset constitutes
extrinsic fraud because it deprives the other spouse of the opportunity to fully present his
or her claim to the court. (Id. at pp. 831-832.) This common-law claim may be brought
outside the family law proceedings. (Ibid.) Here, although Jones does not argue that her
complaint could be amended to state such an equitable cause of action, it is clearly
arguable that her complaint states, or could be amended to state, facts sufficient to
support such a cause of action. (Ibid. [pleading requirements for equitable cause of
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action].) Accordingly, we could reverse the judgment and remand with directions to
allow Jones to file an amended complaint.
However, it is also arguable that the traditional equitable remedy has been
abrogated with respect to a claim that a former spouse fraudulently concealed community
property and that a family law court does have exclusive jurisdiction over such a claim,
regardless of any express reservation of jurisdiction. In 1989, the Legislature enacted
former Civil Code section 4353, which provided: “In any action for legal separation or
dissolution or annulment of a marriage, the court has continuing jurisdiction to award
community property or community debts to the parties that has not been previously
awarded by a judgment therein. A party may file a postjudgment motion or order to
show cause in the proceeding in order to obtain adjudication of any community asset
omitted or not awarded by the judgment.” Currently, Family Code section 2556 contains
the same provisions.
In In re Marriage of Hixson (2003) 111 Cal.App.4th 1116, the court discussed the
history of these statutes:
“Prior to enactment of former Civil Code section 4353, a spouse who believed that
community property had not been adjudicated in a prior dissolution proceeding was
required to bring a separate civil action. (Henn v. Henn (1980) 26 Cal.3d 323, 330–
332 [ ].) ‘There are no reported decisions that have held that a community property claim
to an asset left unmentioned in a prior judicial division of community property may be
adjudicated in a motion to modify the prior decree. The only reported decisions that
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address this issue correctly conclude that such claims may only be adjudicated in a
separate action. [Citations.]’ (Id. at p. 332.)
“The legislative history of former Civil Code section 4353 indicates that it was
sponsored by the author of a noted treatise on family law, Justice Donald King. Justice
King believed that permitting litigation of unadjudicated community property claims by
way of orders to show cause in the prior family law matter ‘would be considerably less
expensive, less burdensome on the court, save a great deal of judicial time, permit
resolution of the dispute within a very short period of time, and permit the aggrieved
party to obtain attorney fees and costs which would not otherwise be available.’ (Sen.
Com. on Judiciary, Rep. on Assem. Bill No. 1905 (1989–1990 Reg. Sess.) July 18,
1989.)” (In re Marriage of Hixson, supra, 111 Cal.App.4th at p. 1121.) The court did
not further elucidate the legislative history of former Civil Code section 4353.
From this fragment of the legislative history, it appears that in enacting that
statute, the Legislature may have intended to create an exclusive remedy with respect to
the omission of community property, fraudulently or otherwise. Without engaging in
further research into the legislative history of former Civil Code section 4353, we cannot
say as a matter of law that Jones has an equitable cause of action outside the family law
action. (Cf. Kuehn, supra, 85 Cal.App.4th at pp. 831-832.) In the absence of briefing
which supports the continuing viability of such an equitable cause of action in a matter
involving community property allegedly omitted from a family law judgment, we decline
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to address the issue.1 (Careau v. Security Pacific Business Credit, Inc., supra, 222
Cal.App.3d at pp. 1387-1388.) Similarly, because Hilliker has not raised the defense of
res judicata, we also need not decide whether the denial of Jones’s second motion in the
Torrance family law court precludes further litigation in any court on the question of the
character of the property.
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J. We concur:
KING J.
CODRINGTON J.
1 Family Code section 2556 was enacted in 1992. (Stats. 1992, ch. 162, § 10.) Its predecessor, former Civil Code section 4353 was enacted in 1989. (Stats. 1989, ch. 1105, § 2.) Judgment in the parties’ dissolution was filed in 1987. Accordingly, it is also arguable that those statutes do not apply to the parties’ dissolution.
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AI Brief
AI-generated · verify before citing
Holding. The court held that a former spouse cannot maintain a tort action for the fraudulent concealment of community assets, as such claims are not cognizable under California law.
Issues
Whether a former spouse may maintain a tort action for the fraudulent concealment of community assets.
Whether the trial court abused its discretion in sustaining a demurrer without leave to amend.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“it is clear that the Riverside court has no jurisdiction to entertain Jones’s tort claims.”