Cardinalli v. Cardinalli CA6

Filed 9/26/14 Cardinalli v. Cardinalli CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

SAL J. CARDINALLI, H039232 (Monterey County Plaintiff and Appellant, Super. Ct. No. M117007)

v.

JOHN T. CARDINALLI et al.,

Defendants and Respondents.

Appellant Sal J. Cardinalli brings this appeal of a judgment entered following the trial court’s order sustaining respondents’ demurrer to his first amended complaint without leave to amend. Respondents are appellant’s brothers, father, and the family trusts of his brothers and their wives. STATEMENT OF THE FACTS AND CASE The instant case arises from a 10-year dispute between appellant and his brothers and other family members related to a family-owned business, Monterey Checker Transportation, Inc. (MTC). Appellant filed his first suit in 2004 against his brothers asserting causes of action for declaratory relief, accounting, fraud, partition of real property, breach of fiduciary obligations owed by majority shareholders to minority shareholders, unjust enrichment, and breach of oral contract.

Following trial in the 2004 case, the court found that appellant was entitled to a liquidated amount of 25 percent of MTC. This resulted in a judgment in favor of appellant in the amount of $283,750 against MTC.1 On May 20, 2011, MTC filed for Chapter 11 bankruptcy reorganization. Appellant filed a motion to dismiss the bankruptcy as fraudulent, and a petition to determine dischargeability. The bankruptcy court denied both of appellant’s motions. Appellant filed the current state court action in 2012, alleging 11 causes of action against the same defendants from his 2004 complaint. The claims in the complaint relate to his allegation that MTC fraudulently filed for bankruptcy in order to prevent him from collecting his judgment from the 2004 action. These claims are conspiracy to defraud, intentional interference with economic expectancy, intentional infliction of mental and emotional distress, fraudulent conveyance, partition of real property, unpaid rents, unfair competition, declaratory relief, unjust enrichment, injunctive relief, and appointment of a receiver. Respondents demurred to the complaint on the ground that the claims asserted therein are subject to the jurisdiction of the bankruptcy court. The court sustained respondents’ demurrer to the complaint without leave to amend as to all of the causes of action except the claim for conspiracy to defraud, to which the court sustained the demurrer with leave to amend. Following the court’s sustaining the demurrer to the complaint, appellant filed a request for reconsideration on July 24, 2012. This was two weeks before the court’s order sustaining the demurrer was filed on August 7, 2012. Appellant filed his first amended complaint on August 7, 2012. While the court only granted leave to amend the first cause of action for conspiracy to defraud, appellant