Alvary v. Lamey CA2/6

Filed 11/17/15 Alvary v. Lamey CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

GEORGE A. ALVARY, 2d Civil No. B261789 (Super. Ct. No. 56-2014-00448333- Plaintiff and Appellant, CU-MC-VTA) (Ventura County) v.

SUZANNE C. LAMEY et al.,

Defendants and Respondents.

Plaintiff George A. Alvary appeals a judgment of dismissal following the sustaining demurrers to five causes of action in his civil action against defendant Suzanne C. Lamey (Lamey), his ex-wife, and John H. Lamey and Donna A. Lamey (Lamey's parents). Lamey and her parents are respondents on appeal. We conclude, among other things, that: 1) the trial court properly sustained a demurrer to the first three causes of action because they involved setting aside a prior dissolution judgment and they should have been filed in family court, not as a civil action; 2) the trial court erred by ruling these three causes of action could not be transferred to the family court; 3) the trial court properly sustained a demurrer on the fourth cause of action, but the court should have granted leave to amend; and 4) the trial court erred by sustaining a demurrer to the fifth cause of action involving alleged fraudulent asset transfers because it fell within the applicable one-year statute of limitations. We affirm in part and reverse in part.

FACTS Alvary and Lamey were married in 2005. A final judgment of dissolution of their marriage was entered on February 13, 2013. On February 5, 2014, Alvary filed a civil action against Lamey and her parents. In his first three causes of action, Alvary alleged Lamey breached her "fiduciary duties" to him during the marriage by: 1) filing a false property declaration in the dissolution case which did not list money she concealed from him; 2) establishing secret bank accounts during the marriage in her name by making unauthorized diversions of funds from their joint checking account; 3) making transfers of money to her parents from his separate property which was to be used to pay "pre-construction costs" for a home they were building on her parents' land; and 4) by making an unauthorized "string of monthly payments from [a] joint checking account to her parents." In his fourth cause of action, Alvary sought damages against Lamey's parents claiming Lamey made "a gift of pre-construction costs" to them from his separate property. He alleged this constituted a fraudulent transfer under the Uniform Fraudulent Transfer Act. (Civ. Code, § 3439.04.) In his fifth cause of action, Alvary sought damages against Lamey's parents. He claimed Lamey made "two strings of payments" to her parents from a marital "joint checking account." Lamey made these secret transfers with the intent to defraud him. The trial court sustained demurrers to the first four causes of action without leave to amend. It ruled the first three causes of action were not properly filed as part of a civil action. They had to be filed in family court. The fourth cause of action was barred by a four-year statute of limitations. The court sustained a demurrer to the fifth cause of action with leave to amend to allow Alvary to plead facts showing he came within the one-year statute of limitations for discovery of fraudulent transfers.