Gottesman v. Christensen

Filed 8/19/08 Gottesman v. Christensen CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Barbara M. Scheper, Judge. Affirmed.

Law Offices of Peter B. OBrien and Peter B. OBrien for Plaintiff and Appellant.

Peggy Christensen, in pro. per., for Defendant and Respondent.

_____________________________________

While his marital dissolution proceeding was pending, husband Marc Gottesman filed a separate civil action against his wife, Peggy Christensen, and additional defendants. The civil action concerned Gottesmans legal rights to a community property family home that was soon to be sold pursuant to court orders entered in the dissolution proceeding. The trial court sustained Christensens demurrer to the complaint without leave to amend and dismissed Gottesmans civil action. The trial court also ordered Gottesman to withdraw a lis pendens he filed in connection with the civil complaint. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In December 2004, Peggy Christensen filed a petition to dissolve her marriage to Marc Gottesman. One of the issues in the dissolution proceeding was the disposition of the parties community property family home. In January 2007, the family law court appointed a listing agent and broker to handle the sale of the property, and ordered the parties to cooperate with the agent and broker in the listing, marketing, and sale of the home. At some point in the dissolution proceedings, Gottesman recorded a lis pendens on the property. In June 2007, the family law court denied Gottesmans requests for orders staying the sale of the family home, and ordered Gottesman to withdraw the lis pendens so that the sale could proceed.^[1]

On July 2, 2007,Gottesman filed a separate civil complaint against Christensen and added: Gregory and Teresa Palmer, a couple who had tendered an offer to buy the family home; Mike Bzdak and Capital Realtors, the Palmers real estate agent and broker; Raquel Magro and Pinnacle Estate Properties, Inc., the listing agent and broker appointed by the family law court; and James Abbenhuys, one other real estate agent or broker. The complaint asserted claims for declaratory relief, specific performance, breach of fiduciary duty, and breach of contract. The complaint alleged that Gottesman had a right of first refusal to purchase the property that had not been honored. Gottesman sought a judicial declaration determining his rights in the family home and specific performance of the right of first refusal, even though his complaint acknowledged that the same property was the subject of orders in the pending dissolution proceeding. The complaint further alleged that defendant real estate agents and brokers had breached their fiduciary duties by facilitating the sale of the property at a less-than-market price to the buyers (the Palmers), without disclosing that the buyers were related to their broker.^[2]

Gottesman failed to comply with the family law courts June 2007 order that he withdraw the lis pendens, and, on July 5, 2007, the court ordered the clerk of the court to sign a notice of withdrawal of lis pendens on Gottesmans behalf. On July 9, 2007, Gottesman filed a second lis pendens on the property, this time based on his civil action. On July 16, 2007, Christensen demurred to the civil complaint and filed an ex parte application for an order shortening time for notice and hearing on the demurrer. Christensen argued that the trial court did not have jurisdiction to hear Gottesmans civil complaint because of the pending dissolution proceeding in the family law department. Christensen also asserted that Gottesman was trying to relitigate issues that had already been decided in the family law proceeding, and that Gottesman intended to derail the sale of the property. Christensen represented that escrow was scheduled to close on the property on July 20, 2007.^[3]

The trial court granted Christensens ex parte application and shortened the notice period for the demurrer. Gottesman filed an opposition to the demurrer on July 17, 2007. In his opposition, Gottesman admitted that the family law court had jurisdiction over the third parties named in his complaint, but he argued that the trial court should stay the civil action rather than dismiss it, and he claimed that he intended to file an action to coordinate or consolidate the two proceedings. On July 18, 2007, the trial court sustained the demurrer without leave to amend. The court also granted Christensens oral motion to dismiss the civil case in its entirety, and further ordered Gottesman to withdraw the lis pendens by July 19, 2007. Gottesman did not withdraw the lis pendens. On July 20, 2007, Christensen filed an ex parte application for an order directing the clerk of the court to sign a notice of withdrawal of lis pendens on Gottesmans behalf. Gottesman filed a written opposition to the application, but did not appear at the hearing. The trial court granted Christensens motion and ordered the clerk of the court to sign a notice of withdrawal of the lis pendens on Gottesmans behalf.

On July 20, 2007, Gottesman filed a notice of appeal. The notice indicated that Gottesman was appealing from the courts order of dismissal under California Code of Civil Procedure section 581, subdivision (f)(1). On August 10, 2007, Gottesman filed a second petition for writ of mandate or prohibition, challenging the trial courts lis pendens orders.^[4]

DISCUSSION

I. The Trial Court Properly Dismissed the Complaint After it Sustained the Demurrer Without Leave to Amend

Gottesman contends the trial court improperly dismissed his civil case after sustaining the demurrer without leave to amend. For the reasons stated below, we find his contention lacks merit.

Initially, Gottesman claims the trial court erred procedurally in two respects: by taking judicial notice of the records of the pending family law proceeding and by hearing the demurrer after granting an order to shorten time. We discuss these issues first before proceeding to the merits.

A. Judicial Notice

Gottesman contends that the trial court erred by taking judicial notice of records from the dissolution proceeding. At the same time, Gottesman concedes that a trial court may take judicial notice of the files in other proceedings. (Evid. Code,  452, subd. (d).) Here, the trial court could properly take judicial notice of files from the family law court to determine that Gottesmans civil action concerned the same subject matter as the pending dissolution proceeding. (See Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 191-192.) Further, Code of Civil Procedure section 430.30, subdivision (a), specifically authorizes a demurrer when an objection to the complaint appears either on the face of the complaint or from matters of which the court may take judicial notice.

Gottesman claims that the trial court considered inadmissible hearsay from the file in ruling on the demurrer, but does not cite to any part of the record to support his assertion. Gottesman has thus failed to meet his burden to demonstrate the trial court erred.

B. The ex parte application to shorten time for briefing and hearing

of the demurrer

Gottesman next argues that the trial court should have denied Christensens ex parte motion to shorten time for briefing and hearing on the demurrer. However, Gottesman fails to support his factual assertions with citations to the record; does not cite to any legal authorities to support the argument; and makes no legal argument in support of his assertions. We therefore treat the contention as waived. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246; McComber v. Wells (1999) 72 Cal.App.4th 512, 522-523.)

C. Merits

Gottesmans civil complaint concerned the community property family home that was already the subject of the pending family law proceeding. The complaints stated intent was to litigate Gottesmans alleged rights to the property. In an order dated January 3, 2007, the family law court explicitly informed the parties that it would retain jurisdiction to resolve any disputes related to the Property, including without limitation the listing, pricing, marketing, accepting offers, making counter-offers, escrow and escrow instructions, and disposition of the proceeds of the sale of the Property.

It is well established that family law cases should not be allowed to spill over into civil law. . . . [Citation.] (Burkle v. Burkle (2006) 144 Cal.App.4th 387, 393 (Burkle).) Thus, as we explained in Burkle, when a dissolution proceeding is pending, neither party to that proceeding has the right to file a separate civil action to litigate claims stemming from the family law case. (Ibid.) The trial court must review the substance of claims asserted in a civil action, and will properly disallow those that are really nothing more than reruns of a family law case. (Neal v. Superior Court (2001) 90 Cal.App.4th 22, 25.)

It is abundantly clear that Gottesmans civil action was in substance  a family law OSC with civil headings. [Citation.] (Burkle, supra, 144 Cal.App.4th at p. 394.) The division and disposition of community property are central issues in a marital dissolution proceeding, and in this case the family law court had already made specific orders about the division and disposition of the property at issue. Gottesmans civil complaint was by its terms a request for a judicial determination of his rights to the family homea matter already pending before the family law court. (Askew v. Askew (1994) 22 Cal.App.4th 942, 961-962 (Askew).)

Gottesman also argues that the trial court erred by dismissing the claims he asserted in the civil action against third parties. The family law court had the power to join the real estate agents and brokers as parties in the dissolution proceeding. Both the Family Code and the Rules of Court grant the family law court broad powers to determine and characterize community property and join third parties with an interest in such property. (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1451-1452.) Rule 5.158 states that a person may be joined if the court finds that it would be appropriate to determine the particular issue in the proceeding and that the person to be joined as a party is either indispensable to a determination of that issue or necessary to the enforcement of any judgment rendered on that issue. Further, rule 5.106(a) provides that if a person is acting as a trustee, agent, or fiduciary with respect to any property subject to disposition by the family law court in a proceeding, the court may grant injunctive or other relief against any such person in order to protect the rights of the parties to the proceeding. If the court is unable to resolve the issue in the proceeding under the Family Code, the court may reserve jurisdiction over the particular issue until such time as the rights of such person and the parties to the proceeding under the Family Code have been adjudicated in a separate action or proceeding. (Cal. Rules of Court, rule 5.106(b); see also Fam. Code, 2021, subd. (a); Glade, supra, 38 Cal.App.4th at pp. 1452-1453.)

In the case before us, Gottesman was required to seek relief in the dissolution proceeding. Although Gottesman asserted claims against third parties in his civil action, the claims concerned Gottesmans rights to the family home and either challenged the family law courts orders, or were inextricably linked to those orders. Gottesmans declaratory relief and specific performance causes of actionagainst all defendantsasserted Gottesmans alleged rights to the community property family home. And while the breach of fiduciary duty claim was only alleged against the third parties, the substance of the cause of action challenged the family law courts orders. For example, in support of the cause of action the complaint stated: Plaintiff alleges that had the family relationship [between the buyers and their broker] been fully disclosed the offer would not have been accepted and an offer greater than the listing price would have been received. Then too the entirety of the costs and attorney fees associated with the low offer and its acceptance by an order of court that the Clerk sign the escrow instructions, which the Clerk did, were incurred and proximately caused by the concealment of facts that Raquel Magro and Pinnacle Estate Properties were duty bound to reveal. (Capitalization omitted.) This charge challenged not only the third parties actions, but also the family law courts orders.

Further, [a]fter a family law court acquires jurisdiction to divide community property in a dissolution action, no other department of a superior court may make an order adversely affecting that division. (Askew, supra, 22 Cal.App.4th at p. 961.) Therefore, the trial court properly sustained the demurrer without leave to amend and dismissed Gottesmans claims. (Burkle, supra, 144 Cal.App.4th at p. 398.)

Gottesman argues that under the rule of exclusive concurrent jurisdiction, the trial court was required to stay his civil action instead of dismissing it.^[5] We need not address the merits of this argument because Gottesman has failed to establish any miscarriage of justice or prejudice as a result of the trial courts ruling. (American Autoplan, supra, 20 Cal.App.4th at p. 772 [[t]rial court error in determining application of the rule of exclusive concurrent jurisdiction is reversible only where the error results in a miscarriage of justice or prejudice to the party asserting the rule].) Indeed, not only does Gottesman fail to establish prejudice, he argues that given the pending dissolution action it is clear that the issues should be decided in one forum with all parties to the alleged sale of the family home bound.

As explained above, the family law court clearly had the power to join third parties in the dissolution proceeding, and the trial court properly followed Burkle and its predecessors in recognizing that Gottesmans complaint consisted of family law claims under civil headings. (Burkle, supra, 144 Cal.App.4th at p. 399.) We therefore affirm the trial courts order sustaining the demurrer in its entirety and the order dismissing Gottesmans complaint.

II. This Court Does Not Have Jurisdiction to Entertain an Appeal of the

Lis Pendens Orders

Appellant also contends the trial court improperly ordered the lis pendens withdrawn.A lis pendens may be terminated by an expungement order or by withdrawal of the lis pendens. (Code Civ. Proc.,  405.60.) Code of Civil Procedure section 405.39 provides that [n]o order or other action of the court under this chapter [--expungement and other relief--] shall be appealable. Instead, such orders or actions are reviewable only by petition for writ of mandate. (Code Civ. Proc.,  405.39; Amalgamated Bank v. Superior Court (2007) 149 Cal.App.4th 1003, 1016.) Here, the trial courts orders directing the withdrawal of the lis pendens were, in essence, orders expunging the lis pendens, even though the parties and the court did not use this terminology. As such, the orders could only be challenged by writ. (Woodridge Escondido Property Owners Association v. Nielsen (2005) 130 Cal.App.4th 559, 576-577.) Though Gottesman did in fact unsuccessfully seek writ relief challenging the trial courts lis pendens orders before this court, he again challenges the courts lis pendens orders in this appeal.

Even were we to assume that the orders were appealable, Gottesman did not include them in his notice of appeal, which identified only the order dismissing his complaint after the sustaining of his demurrer as the basis of the appeal.^[6] A notice of appeal is sufficient if it identifies the particular judgment or order being appealed. [Citation.]  Where several judgments and/or orders occurring close in time are separately appealable . . . each appealable judgment and order must be expressly specifiedin either a single notice of appeal or multiple notices of appealin order to be reviewable on appeal.  [Citations.] (Sole Energy Company v. Petrominerals Corporation (2005) 128 Cal.App.4th 212, 239.) While notices of appeal must be liberally construed (Cal. Rules of Court, rule 8.100(a)(2)), we cannot in this case construe Gottesmans July 20, 2007 notice of appeal to include the trial courts lis pendens orders.  The rule favoring appealability in cases of ambiguity cannot apply where there is a clear intention to appeal from only part of the judgment or one of two separate appealable judgments or orders. [Citation.] Despite the rule favoring liberal interpretation of notices of appeal, a notice of appeal will not be considered adequate if it completely omits any reference to the judgment [or order] being appealed.  [Citation.] (Colony Hill v. Ghamaty (2006) 143 Cal.App.4th 1156, 1172.)

Thus, even if Gottesman could challenge the lis pendens orders by appeal, his failure to identify them in his notice of appeal prevents us from reviewing them. Whether deemed an order or other action under Code of Civil Procedure section 405.30 et seq., or a separately appealable order, we have no authority to entertain Gottesmans challenge to the trial courts lis pendens orders.

DISPOSITION

The judgment of the trial court is affirmed. Costs are awarded on appeal to respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BIGELOW, J.

We concur:

COOPER, P. J.

RUBIN, J.

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^[1] At oral argument, the parties agreed that this court could take judicial notice of the writ proceedings. They demonstrate that on July 2, 2007, Gottesman filed a petition for writ of mandate or prohibition, challenging the family law courts orders on a number of issues, including the family courts denial of his request for reconsideration of his right to a trial on the sale of the family home. On June 25, 2007, the trial court ordered the clerk of the court to execute all documents necessary for sale of the family residence to the prospective buyers that had already offered the highest amount for the family residence$850,000. The home was ordered sold so as to serve as security for an equalization payment of $191,000 it was determined Gottesman owed his wife. We summarily denied the petition for his failure to demonstrate entitlement to relief.

^[2] The complaint did not allege that the buyers were related to the selling broker or agent.

^[3] The other defendants did not respond to the complaint or otherwise appear in the civil action.

^[4] On August 17, 2007, Gottesman filed two more petitions in this court, which were both denied by this court on September 20, 2007. The first challenged a July 5, 2007 order of the family law court directing the court to execute, on Gottesmans behalf, about 29 documents, including a notice of withdrawal of a lis pendens he filed on the property. According to a declaration from Christensen contained in the record, part of an October 2006 settlement between her and Gottesman included an agreement to sell the residence and have it listed with a broker by November 2006. The family law court had ruled, The court found that the parties had long ago entered into an agreement to sell the home and that the court made previous orders regarding that sale. That [Gottesman] has now changed his mind is not a basis for vacating that agreement and the orders that were made based on that agreement. . . . When Gottesman refused to execute the withdrawal or removal of the lis pendens, the family law court issued its July 5 order.

Three days later, Gottesman, through his current lawyer, filed the instant civil action. He recorded yet another lis pendens against the residence, which Judge Scheper ordered withdrawn. Judge Schepers order is the subject of the third petition filed before this court which was denied September 20, 2007. It is also the subject of this appeal. (B201182.) In denying these latter two petitions, each order by this court noted that the petition borders on the frivolous and therefore [we] invite real party to seek sanctions if petitioner files a similar petition in the future.

^[5]  Under the rule of exclusive concurrent jurisdiction, when two [California] superior courts have concurrent jurisdiction over the subject matter and all parties involved in litigation, the first to assume jurisdiction has exclusive and continuing jurisdiction over the subject matter and all parties involved until such time as all necessarily related matters have been resolved. [Citations.] The rule is based upon the public policies of avoiding conflicts that might arise between courts if they were free to make contradictory decisions or awards relating to the same controversy, and preventing vexatious litigation and multiplicity of suits. [Citation.] Ordinarily, [p]riority of jurisdiction resides in the tribunal where process is first served. [Citation.] However, the rule of exclusive concurrent jurisdiction is a rule of policy and countervailing policies may make the rule inapplicable. [Citation.] (People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4th 760, 770-771 (American Autoplan).)

^[6] Gottesman did not address the appealability of the lis pendens orders in his brief, therefore we invited him to submit supplemental briefing on the issue under Government Code section 68081. His supplemental brief did not directly address this issue.