Richards v. Richards CA4/3 ( 2022 )

Filed 5/2/22 Richards v. Richards CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
ALICIA MARIE RICHARDS,
Plaintiff and Appellant, G059675
v. (Super. Ct. No. 30-2018-00986705)
RYAL W. RICHARDS et al., OPINION
Defendants and Respondents.
Appeal from a judgment of the Superior Court of Orange County, Glenn R.
Salter, Judge. Affirmed. Requests for judicial notice granted.
Alicia Marie Richards in pro. per.
Law Offices of Kevin E. Robinson and Kevin E. Robinson for Defendant
and Respondent Ryal W. Richards and Kevin E. Robinson.
Law Offices of Randy K. Vogel and Randy K. Vogel for Defendants and
Respondents Patricia Strang and Kevin E. Robinson.
Alicia Marie Richards and Ryal W. Richards have been embroiled in a long
drawn-out and highly acrimonious dissolution action for several years.1 Alicia has filed
multiple unsuccessful appeals in connection with the couple’s divorce judgment and
Ryal’s efforts to enforce it.2 In April 2018, while some of her appeals were pending,
Alicia filed a fraud action against Ryal. In 2020, the trial court sustained Ryal’s demurrer
without leave to amend. Alicia’s arguments on appeal attacking the trial court’s
jurisdiction to consider the demurrer, as well as her contention she sufficiently pled eight
causes of action, lack merit. Accordingly, we affirm the judgment of dismissal entered in
favor of Ryal.
BACKGROUND FACTS
We incorporate by reference the summary of facts outlined in Richards I,
concerning the dissolution action. Relevant to this appeal, Alicia and Ryal were each
represented by counsel in 2016 when Ryal filed a dissolution petition and moved out of
the family residence (Property). (Richards I, G055927.) Ryal, claiming he could not
afford to maintain the Property in addition to a separate residence, requested a hearing on
1 We will refer to the parties by their first names to avoid confusion.
2 In re Marriage of Richards (Jan. 9, 2020, G055927) [nonpub. opn.]
(Richards I) [affirmed order refusing to set aside stipulated marital dissolution judgment
ordering sale of family residence]; In re Marriage of Richards (Jan. 9, 2020, G056626)
[nonpub. opn.] (Richards II) [regarding postjudgment orders]; In re Marriage of Richards
(May 18, 2020, G056921) [nonpub. opn.] (Richards III) [postjudgment orders regarding
enforcement of judgment]; In re Marriage of Richards (Oct. 6, 2020, G057803) [nonpub.
opn.] (Richards IV) [affirmed 2018 orders denying motions to quash/vacate Ryal’s writ
of possession].)
We have also considered two tangentially related appeals arising from the
dissolution action. In Lavacot v. Richards (Mar. 30, 2020, G056745) [nonpub. opn.], we
considered Alicia’s failed efforts to obtain money from her great-grandparents’ trust to
buy out Ryal’s interest in the family residence. In Zech v. Richards (Mar. 8, 2022,
G057798) [nonpub. opn.] (Zech), we determined the court had subject matter jurisdiction
to enter judgment in Alicia’s former attorney’s breach of contract/collection action.
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selling the Property immediately. (Ibid.) He believed the Property’s equity was
approximately $800,000. (Ibid.) Alicia indicated she wanted to purchase the Property.
(Ibid.) In 2017, Alicia and Ryal, with their counsel, appeared for a hearing and entered
into a settlement agreement and stipulation for judgment. (Ibid.) The 11-page proposed
judgment concerned many of the parties’ disputes, including custody arrangements,
credits, and support payments. With respect to the Property, the agreement provided
Alicia with a July 7, 2017, deadline to obtain funds from a family trust to buy out Ryal’s
share, or alternatively a timeline and process for vacating and selling the residence if
Alicia did not purchase the Property before July 7. (Ibid.)
All did not proceed as planned. Alicia was unable to buy out Ryal’s share
before the July deadline, and in September 2017, she filed a motion to vacate or set aside
the stipulated judgment. (Richards I, G055927.) Alicia asserted she was defrauded and
coerced into signing the settlement. She added the stipulated judgment was the result of
duress and she described multiple incidents of perceived misconduct. Before the hearing,
Alicia filed two more declarations raising additional allegations of fraud, concealment,
duress, mistake, and inequity. (Ibid.) In January 2018, the court considered the moving
papers and oral argument before denying the motion. (Ibid.) Alicia appealed the ruling.
A few months later, on April 17, 2018, Alicia filed a lawsuit against Ryal
alleging causes of action for fraud, missexual conduct, right of privacy, intentional
infliction of emotional distress, defamation of character, threats and spousal abuse,
breach of contract, “detriment,” and breach of fiduciary duty. Later that year, Alicia
amended the complaint to name as defendants Ryal’s trial counsel, Kevin Eugene
Robinson, and Ryal’s mother, Patricia Strang.
The following month, Ryal filed a demurrer to the complaint. Before
Alicia could respond, the court on its own motion notified the parties it intended to stay
the proceedings. It ruled as follows: “It appears that this civil case raises issues that are
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already pending in a [f]amily [l]aw case involving these parties . . . . It also appears that
this court may not have jurisdiction over certain issues raised in the civil case because the
plaintiff has filed an appeal . . . from orders made in the [f]amily [l]aw case that
potentially are part and parcel of the complaint filed in the civil case.”
A week later, the court issued an order stating, “On the [c]ourt’s own
motion, and for the reasons stated in [the prior] minute order . . . this matter is STAYED
pending further order of the [c]ourt. The demurrer to the complaint is therefore OFF
CALENDAR.” The court scheduled a status review for April 2019 to give the parties an
opportunity to update the court on the status of the family law case and Alicia’s appeals
from orders made by the family law court.
In October 2019, the court ruled the matter was stayed because Alicia filed
a Chapter 13 bankruptcy. After Alicia notified the trial court the bankruptcy stay was
lifted, the court scheduled a case management conference and permitted Alicia to file the
first amended complaint (FAC).
In May 2020, Alicia’s FAC repeated some of the original causes of action,
and added a few new ones, as follows: (1) fraud in fact and deceit; (2) negligent
infliction of emotional distress; (3) right of privacy; (4) intentional infliction of emotional
distress; (5) defamation of character; (6) threats and spousal abuse; (7) breach of contract
and covenants; (8) breach of fiduciary duty; and (9) rescission of contract for fraud. Ryal
demurred to the FAC asserting Alicia’s exclusive remedy was in the dissolution action
under provisions of the family code. He also maintained that many of Alicia’s
complaints were about conduct protected by the litigation privilege. (Civ. Code, § 47,
subd. (b).) Alicia opposed the demurrer, claiming she alleged facts sufficient to support
each of her causes of action.
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Robinson and Strang filed special motions to strike (anti-SLAPP motion)
(Code Civ. Proc., § 425.16).3 They also requested permission to join in Ryal’s demurrer
if there were “any surviving claims” after the court ruled on the anti-SLAPP motion. The
parties filed multiple requests for judicial notice.
The court sustained the demurrer without leave to amend. Its minute order
contained the following explanation: “This civil action raises the same issues resolved in
the marital dissolution proceeding. It casts them in a different light, but at their core they
are the same. . . . [¶] The plaintiff’s sole remedy was in the family courts. The plaintiff
stipulated to a judgment and then sought to set it aside for fraud. The motion was denied
and the plaintiff’s appeal was unsuccessful.”
The court did not rule on Robinson’s and Strang’s motion to join Ryal’s
demurrer. We mention this fact only because Robinson and Strang were designated
respondents in this appeal despite the lack of a ruling for or against them on the joinder
motion. Strang filed a brief stating she wanted to join respondent’s brief. She correctly
noted the joinder motion became moot after the trial court granted her anti-SLAPP
motion. The same is true for Robinson. Nevertheless, Strang’s counsel felt compelled to
request joinder because Alicia named her and Robinson as parties in this appeal. 4
3 All further statutory references are to the Code of Civil Procedure, unless
otherwise indicated.
4 The rulings on the anti-SLAPP motions were the subject of separate
appeals we consolidated and recently considered. We affirmed the trial court’s rulings in
Richards v. Strang (May 2, 2022, G059305) [nonpub. opn.]. Robinson filed a
respondent’s brief on behalf of himself, Ryal, and Strang. On the same day, counsel for
Strang filed a separate brief joining in respondent’s brief. This was unnecessary because
Alicia did not challenge the trial court’s failure to rule on the joinder motion. She
abandoned the only potential issue concerning Robinson’s and Strang’s connection to the
demurrer ruling. There was no need for Robinson or Strang to insert themselves into
Ryal’s respondent’s brief.
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Ryal filed a memorandum of costs as the prevailing party. Alicia filed a
motion to strike or tax costs. The court granted the motion in part awarding $910.40, but
denied costs related to photocopying and scheduling issues ($228.50). In November
2020, the court entered a judgment of dismissal.
PENDING MOTIONS ON APPEAL
In September 2021, Ryal filed a request for judicial notice of portions of the
appellate record filed in Richards I (G055927) [nonpub. opn.], and this court’s Richards I
opinion. Specifically, Ryal asks this court to take judicial notice of the original marital
dissolution petition, the settlement agreement, and documents related to Alicia’s efforts
to overturn the stipulated judgment. These documents were all originally filed in Ryal
and Alicia’s dissolution case (Orange County Super. Ct. case No. 15D009634) and
became part of our appellate record when Alicia challenged the court’s postjudgment
rulings.
Alicia filed an opposition asserting those documents were not the proper
subject of judicial notice because they were not filed in the lower court in the underlying
case. Ironically, in July 2021, Alicia filed a request for judicial notice of six documents
filed in the dissolution action (Orange County Superior Court case No. 15D009634),
some of which became part of our appellate record in Richards I, supra, (G055927). In
her request for judicial notice, Alicia acknowledges records from any court of this state
may be judicially noticed. (Evid. Code, §§ 452, subd. (d)(1), 459.) The old adage comes
to mind—What’s good for the goose is good for the gander. We grant Ryal’s and
Alicia’s requests for judicial notice of documents contained in the appellate record of a
prior appeal. (Evid. Code, §§ 452, subd. (d)(1), 459, see also Stephenson v. Drever
(1997) 16 Cal.4th 1167, 1170, fn. 1 [took judicial notice of entire appellate record of
prior appeal].)
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On a final note, there seems to be some confusion about whether we must
take judicial notice of our prior unpublished opinions. We may cite to prior unpublished
opinions without taking judicial notice and without violating California Rules of Court,
rule 8.1115(a) because “[w]e . . . cite the decision to explain the factual background of
the case and not as legal authority. [Citation.]” (Pacific Gas and Electric Company v.
City and County of San Francisco (2012) 206 Cal.App.4th 897, 907, fn. 10.)
The last pending motion is Robinson and Strang’s motion to join Ryal’s
brief and for costs. As explained in footnote 3, there was no reason to file this motion
after reviewing Alicia’s opening brief, which was focused entirely on Ryal. We deny the
motion to join and for costs.
DISCUSSION
Alicia maintains the court’s ruling on the demurrer must be reversed for the
following reasons: (1) the court lacked subject matter jurisdiction; (2) eight causes of
action were sufficiently pled to constitute a cause of action; (3) the court should have
granted her leave to amend; (4) res judicata and claim preclusion do not apply to any of
her causes of action; (5) her causes of action are protected speech under Civil Code
section 47, subdivision (b); and (6) her claims are not barred by the statute of limitations.
We conclude these claims lack merit.
I. Self-Represented Litigants
The trial court’s orders are presumed to be correct, and the appellant has the
burden to prove otherwise by presenting legal authority and analysis on each point made,
supported by appropriate citations to the material facts in the record. If the appellant does
not meet this burden, the argument will be deemed forfeited. (Ewald v. Nationstar
Mortgage (2017) 13 Cal.App.5th 947, 948 [“We have repeatedly held that the failure to
provide legal authorities to support arguments forfeits contentions of error”].) These
rules of appellate procedure apply to Alicia even though she is representing herself.
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(Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639.) “When a litigant is appearing in
propria persona, he [or she] is entitled to the same, but no greater, consideration than
other litigants and attorneys [citations].” (Ibid.)
Alicia has the mistaken impression she is entitled to special treatment
because she represented herself. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985
[self-representation not grounds for lenient treatment].) This is not intended to penalize
self-represented litigants; instead, it is necessary to maintain stability in appellate
proceedings, requiring adherence to the forms and procedures that govern appeals. This
in turn supports the appellate court’s independent and unbiased decision-making.
II. Subject Matter Jurisdiction
A. Applicable Legal Authority Regarding Subject Matter Jurisdiction
There is a large body of case law “stand[ing] for the central idea that family
law cases should not be allowed to spill over into civil law, regardless of whether the
family law matter may be characterized as an action for fraud [citation], malicious
prosecution [citation], or securities law violation [citation]. Almost all events in family
law litigation can be reframed as civil law actions if a litigant wants to be creative with
various causes of action. It is therefore incumbent on courts to examine the substance of
claims, not just their nominal headings.” (Neal v. Superior Court (2001) 90 Cal.App.4th
22, 25 (Neal).) For example, in the Neal case, husband sued his ex-wife for breach of
contract because she did not comply with the terms of a dissolution judgment. (Id.
at p. 26.) He sued her for fraud based on statements she made in the family law order to
show cause (OSC) and for abuse of process based on representations made in the family
law court. (Ibid.) “In substance [the case was] a family law OSC with civil headings.”
(Ibid.)
This deference to the family court stems from the principle of priority of
jurisdiction. (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1449-1450.) Cases holding
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the family court has priority of jurisdiction involve issues central to the family court
proceedings, such as the right to property or support payments. (See, e.g., Burkle v.
Burkle (2006) 144 Cal.App.4th 387, 393 [when dissolution pending neither party has
right to file separate civil action to enforce interim support award issued by family law
court].) The cases holding the family law court has priority generally deal with lawsuits
between former spouses. (Ibid., see, e.g., Neal, supra, 90 Cal.App.4th at p. 24.)
B. Standard of Review
“The function of a demurrer is to test the sufficiency of the complaint as a
matter of law, and it raises only a question of law. [Citations.] On a question of law, we
apply a de novo standard of review on appeal. [Citation.] [¶] A general demurrer is
appropriate where the complaint ‘does not state facts sufficient to constitute a cause of
action.’ (Code Civ. Proc., § 430.10, subd. (e).) . . . [¶] A demurrer is likewise
appropriate where the complaint on its face discloses that ‘[t]he court has no jurisdiction
of the subject matter of the cause of action.’ (Code Civ. Proc., § 430.10, subd. (a).) Such
a demurrer ‘is functionally similar to a demurrer for failure to state a cause of action, and
therefore is deemed a “general demurrer.” [Citation.]’ [Citations.]” (Holiday Matinee,
Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420-1421 (Holiday).)
“‘“We treat the demurrer as admitting all material facts properly pleaded,
but not contentions, deductions or conclusions of fact or law. [Citation.] We also
consider matters which may be judicially noticed.” [Citation.]’ [Citations.] The trial
court’s construction of the pleadings is not binding upon us; we determine independently
whether the complaint states a cause of action. [Citation.] [¶] ‘A general demurrer will
lie where the complaint “has included allegations that clearly disclose some defense or
bar to recovery.” [Citation.]’ [Citation.]” (Holiday, supra, 118 Cal.App.4th at p. 1421.)
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C. Analysis
Alicia asserts she “agrees” with the trial court’s determination it lacked
subject matter jurisdiction. However, she maintains the court abused its discretion “by
proceeding and ruling on the demurrer . . . instead of transferring this case back to the
family law court.” She cites to cases holding a court has authority to transfer claims, and
the court’s failure to do so resulted in “a miscarriage of justice.” She concludes the
court’s error in failing to “transfer” her case denied her due process right to have her
claims heard. In addition, Alicia requests that we determine the court’s judgment was
void for lack of jurisdiction. (Citing Varian Medical Systems, Inc. v. Delfino (2005)
35 Cal.4th 180, 200 (Varian) [court lacked subject matter jurisdiction during pendency of
appeal, and therefore, could not proceed to trial and enter judgment for plaintiffs].)
By raising the above contentions, we gather Alicia now understands that
she mistakenly filed her lawsuit in a court lacking subject matter jurisdiction to consider
her family law related claims. However, she appears to be confused about the remedies
available to her in this kind of situation. She fails to appreciate the court had authority to
consider and decide the question of whether it lacked subject matter jurisdiction to
adjudicate the merits of a dispute.
As aptly noted by Alicia, any judgment or order rendered by a court lacking
subject matter jurisdiction is void on its face. (Varian, supra, 35 Cal.4th at p. 196.) For
this reason “‘an alleged lack of subject matter jurisdiction must be addressed whenever it
comes to a court’s attention.’ [Citation.] Moreover, it ordinarily is addressed as a
threshold matter, as its absence deprives the court of authority to adjudicate the merits of
the dispute. [Citations.]” (Lefebvre v. Southern California Edison (2016)
244 Cal.App.4th 143, 152.)
One way the issue of jurisdiction can be addressed as a threshold matter is
via a demurrer. This motion contends that even if the opposing party’s allegations are
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accepted as true, relief is barred as a matter of law. One of the appropriate grounds for a
demurrer is that the trial court lacks subject matter jurisdiction. “In its most fundamental
or strict sense, ‘lack of jurisdiction’ means an entire absence of power to hear or
determine the case[.]” (Wozniak v. Lucutz (2002) 102 Cal.App.4th 1031, 1040,
disapproved of on another ground in Even Zohar Construction & Remodeling, Inc. v.
Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 844.)
We therefore accept Alicia’s concession that each of her causes of action
directly concerned the ongoing marital dissolution action and all her claims involved
matters that needed to be resolved by the family law court. Having concluded the court
lacked subject matter jurisdiction over the complaint, and that the demurrer was properly
sustained on this basis, we need not reach the merits of Ryal’s remaining challenges to
the complaint (e.g., litigation privilege etc.).
This brings us to the heart of Alicia’s appeal. Must we accept Alicia’s
proposed remedy of ordering the trial court to transfer her fraud case to the same family
law trial judge who considered the martial dissolution action? In short, the answer is no.
Alicia cites to no legal authority, and we found none, to support her
proposed remedy. She repeatedly cites to a single case which did not consider a court’s
authority to transfer a case to a different superior court judge. (Citing Wilcox v. Superior
Court (1994) 27 Cal.App.4th 809, 815 [anti-SLAPP case], disapproved on other grounds,
Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68 fn. 5.) Indeed, she
incorrectly attributes the following quotation to the Wilcox court: “transfer authority is
one of the inherent powers of the court.” Our research shows this quotation was taken
from the Supreme Court opinion, Walker v. Superior Court (1991) 53 Cal.3d 257, 267
(Walker), in its discussion of former Code of Civil Procedure section 396.
In the Walker case, the Supreme Court considered the superior court’s
authority to transfer a case to municipal court if the alleged damages could not possibly
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satisfy the threshold amount. (Walker, supra, 53 Cal.3d at p. 268.) After this opinion
was published, the prior version of Code of Civil Procedure section 396 was repealed as a
result of trial court unification, i.e., the municipal and superior courts were combined.
The statute was amended to resolve a split of authority as to whether a superior court
lacking jurisdiction could transfer a case to an appellate court or the Supreme Court.
Neither the former nor the current version of Code of Civil Procedure section 396 impose
on superior court judges a sua sponte obligation to transfer a case to a different courtroom
of the superior court.
In any event, if we assume for the sake of argument the civil court could
have transferred the matter to a different courtroom, this would not have helped Alicia.
As outlined in respondent’s brief, Alicia’s civil lawsuit mirrors the allegations considered
and rejected by the family law court ruling on her motion to set aside the marital
settlement and stipulated judgment. Alicia’s fraud, duress, coercion, emotional distress,
privacy infringement, defamation, spousal abuse, and fiduciary duty claims were
discussed at length in the declarations supporting her motion to set aside the dissolution
judgment. Alicia claims she did not receive a fair hearing on these issues, but this
contention is belied by the record. Alicia’s obvious disagreement with the family court’s
decision does not entitle her to a second bite of the proverbial apple. We cannot permit
Alicia to keep relitigating her dispute simply because she did not obtain the result she
wanted.
II. Remaining Contentions on Appeal
Having affirmed the trial court’s decision to sustain the demurrer on lack of
jurisdiction grounds, we need not consider the alternative arguments raised in Alicia’s
briefing. Alicia’s concession the court lacked subject matter jurisdiction to rule on the
demurrer is dispositive on the issue of whether she adequately pled eight causes of action.
As noted by Alicia, a court lacking jurisdiction cannot adjudicate the merits of any of her
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causes of action. For this same reason, Alicia’s argument she should have been granted
leave to amend also fails. Alicia does not suggest how she would amend the complaint to
confer jurisdiction. We also need not address Alicia’s argument the court erred in
sustaining the demurrer based on res judicata or the statute of limitations. We affirm the
ruling based on a lack of subject matter jurisdiction.
DISPOSITION
The judgment is affirmed. Respondent Ryal Richards shall recover his
costs on appeal. In the interests of justice, Respondents Patricia Strang and Kevin
Robinson shall not recover their costs on appeal.
O’LEARY, P. J.
WE CONCUR:
GOETHALS, J.
MARKS, J.*
*Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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