Welch v. Superior Court
Petitioner Robert Welch (Robert) and real party in interest Jeanne Welch (Jeanne)[1] are former spouses. Years after their divorce, they stipulated to modify their marital settlement agreement (MSA), which had been incorporated into their judgment of dissolution. Although they intended to reduce their new agreement to a judgment or order, that was not done. Years later, Jeanne alleged that Robert had misrepresented his income to her when they entered into the new agreement and filed a civil action against him for fraud and negligent misrepresentation. After several rounds of pleadings, Robert demurred to the third amended complaint, arguing that Jeanne could not maintain a cause of action against him in tort because the alleged misrepresentations were made in connection with a family law proceeding. The trial court overruled the demurrer, reasoning that Jeanne could pursue her tort action because the statutory remedies in the Family Code, which would otherwise bar the action, did not apply because the parties new agreement had not been incorporated into a judgment or order. We issued an order to show cause and have determined that the writ should be granted. When the substance of the claims is examined, this matter properly belongs in family court, not a civil courtroom. We shall therefore issue a peremptory writ of mandate directing respondent court: (1) to vacate its order overruling Roberts demurrer and to enter a new order sustaining the demurrer with leave to amend to permit Jeanne to state whatever causes of action she may have, other than an action in tort, to vacate the new agreement and (2) to transfer this action to the family court and consolidate it with the family law action (case number 1-91-FL-014736). Court also vacate the temporary stay order issued in June 2007.
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