Hiyama v. Superior Court CA5

Filed 5/10/16 Hiyama v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

DEAN HIYAMA, F071102 Petitioner, (Super. Ct. Nos. 14CECG02395 and v. 14CECL09356)

THE SUPERIOR COURT OF FRESNO COUNTY, OPINION Respondent;

PAIGE RIVERA,

Real Party in Interest.

ORIGINAL PROCEEDING; petition for writ of mandate. Jeffrey Y. Hamilton, Judge. Rummonds Thornton and Douglas V. Thornton; Thornton Law Group, Robert W. Branch and William E. McComas for Petitioner. No appearance for Respondent. Lloydwinter and Jody L. Winter for Real Party in Interest. -ooOoo-

Petitioner, Dean Hiyama, purchased a single-family home in Fresno (Property) while undergoing a divorce. Because a portion of the funds used to purchase the Property were part of the marital estate, Hiyama’s then girlfriend, real party in interest Paige Rivera, took title to the Property. According to Hiyama, Rivera agreed to deed the Property back to Hiyama at a later date. Instead, Rivera took steps to evict Hiyama from the Property. In response, Hiyama filed the underlying action to obtain title to the Property. Rivera demurred to the second amended complaint. The trial court sustained the demurrer without leave to amend as to the majority of the causes of action. The trial court ruled that the alleged contract between Hiyama and Rivera was illegal, and therefore unenforceable, because Hiyama violated Family Code1 section 2040, subdivision (a)(2), when he used his IRA to purchase the Property without his wife’s consent. On Hiyama’s writ petition we issued an order to show cause. We find that, under the circumstances of this case, the contract is enforceable. Accordingly, we will reverse the trial court’s order. BACKGROUND Since the petition is from the sustaining of a demurrer without leave to amend, the facts are derived from the complaint. This court must give the complaint a reasonable interpretation and assume the truth of all material facts properly pleaded. (Aubry v. Tri- City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) However, contentions, deductions or conclusions of law will not be accepted as true. (Id. at p. 967.) In April 2006, Hiyama and his wife, Ann Hiyama, commenced a collaborative divorce proceeding. Beginning in April 2006, Hiyama lived in his mother’s home.