Shami v. Shami

• Decision Date: 18 November 2022
• Docket Number: B319824
• Parties: MINA SHAMI, Plaintiff and Appellant, v. OMAR SHAMI, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

MINA SHAMI, Plaintiff and Appellant,
v.
OMAR SHAMI, Defendant and Respondent.

B319824

California Court of Appeals, Second District, First Division

November 18, 2022

NOT TO BE PUBLISHED

APPEAL from an interlocutory judgment of the Superior Court of Los Angeles County No. 21GDCV00872, Joel L. Lofton, Judge. Affirmed.

Law Offices of Ivey McCray and Ivey McCray for Plaintiff and Appellant.

Law Office of Wali Abdul Malik and Wali Abdul Malik for Defendant and Respondent.

BENDIX, J.

1

In a marriage dissolution action, Omar Shami claimed a particular house was his separate property. As evidence, he offered a quitclaim deed signed by his wife, Mina Shami, conveying the property to him.^[1] Mina disputed Omar's claim and contended the house was community property.

Four years later, while the dissolution action was still pending, Mina filed a lawsuit claiming the quitclaim deed was forged, and seeking a 50 percent interest in the house. The trial court sustained Omar's demurrer on the basis that the same issue was before the court in the dissolution action, and abated Mina's lawsuit pending resolution of the dissolution action. On appeal, Mina challenges the order sustaining the demurrer.

We affirm. The parties, issues, and evidence are identical in the two proceedings, and both concern the same primary right, namely Mina's entitlement to the property under dispute. Mina cites no authority that the court in a marriage dissolution proceeding cannot determine the validity of a deed, and fails to show any error on the part of the trial court.

BACKGROUND

On June 23, 2017, Omar filed a petition for dissolution of his marriage to Mina. The petition requested the family law court confirm as his separate property certain assets listed in an attached property declaration form. This included a house in Duarte (the Duarte house).^[2]

2

Mina filed a response to the dissolution petition contending there were no separate property assets to be confirmed by the court. She requested that "[a]ll assets listed by Omar Shami as community and separate [property] be declared community property," and "[a]ll rents collected by Omar Shami from the home listed in the property declarations be declared community property ...."

Four years later, on June 28, 2021, while the dissolution action remained pending, Mina filed a complaint against Omar for quiet title and constructive trust concerning the Duarte house. The complaint alleged the following: Mina and Omar had purchased the Duarte house in 1998 as a married couple using "community property funds." In the pending dissolution action, Omar was claiming the house was his separate property based on a quitclaim deed purportedly signed by Mina. Mina's signature on the quitclaim deed, however, was a forgery, and the handwriting "appeared near similar" to Omar's own signature on other documents. Mina claimed Omar had forged the quitclaim deed in order to "depriv[e]" her "of her entitled proportion of the community property." Mina requested the trial court declare the quitclaim deed void, and grant her a 50 percent ownership interest in the Duarte house.

Omar demurred to the complaint, contending under Code of Civil Procedure^[3] section 430.10, subdivision (c) there was another

3

action pending between the same parties on the same cause of action, namely the dissolution proceeding. Omar argued Mina's quiet title action sought the same relief she sought in the dissolution proceeding, a determination by the court that the Duarte house was community property rather than Omar's separate property.

Mina opposed the demurrer, arguing the issue of the legality of the allegedly forged deed was not before the family law court in the dissolution proceeding.

The trial court sustained the demurrer under section 430.10, subdivision (c). The court found that the parties and the causes of action were the same in both the dissolution action and the quiet title action. Although Mina framed her claims differently in the quiet title action, the court concluded both actions concerned the same primary right, namely Mina's interest in the Duarte house. "The evidence submitted in the [quiet title] case to establish that the quitclaim is fraudulent would likely be the same evidence as used to establish that the subject property is community property in the [dissolution action]."

The trial court ordered Mina's quiet title action "abated pending the outcome" of the dissolution action, and set for six months later an order to show cause regarding the status of the dissolution action. Mina timely appealed.

DISCUSSION

A. Standard of Review

"We review an order sustaining a demurrer de novo. [Citation.] We accept the truth of material facts properly pled in the operative complaint, but not contentions, deductions, or

4

conclusions of fact or law." (2710 Sutter Ventures, LLC v. Millis (2022) 82 Cal.App.5th 842, 850.)

B. The Trial Court's Order Is Appealable

Under section 430.10, subdivision (c), a defendant may demur to a complaint on the basis that "[t]here is another action pending between the same parties on the same cause of action." "Where a demurrer is sustained on the ground of another action pending, the proper order is not a dismissal, but abatement of further proceedings pending termination of the first action." (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 788.) Under section 597, "where . . . a demurrer based upon subdivision (c) of Section 430.10 is sustained . . . an interlocutory judgment shall be entered in favor of the defendant pleading the same to the effect that no trial of other issues shall be had until the final determination of that other action ...." The interlocutory judgment is appealable "in the same manner . . . provided by law for appeals from judgments." (§ 597.)

Omar argues Mina's appeal is not proper because the trial court never entered an interlocutory judgment, but merely an order sustaining the demurrer. In support, Omar quotes Setliff v. E. I. Du Pont de Nemours &Co. (1995) 32 Cal.App.4th 1525, which states, "An order sustaining a demurrer is not appealable; the judgment of dismissal is." (Id. at p. 1533.)

Here we are dealing with an abatement order, not a dismissal, but we will assume arguendo the principle from Setliff applies. We nonetheless conclude Mina's appeal is proper. Even in the absence of a formal judgment,"' "when the trial court has sustained a demurrer [without leave to amend] to all of the complaint's causes of action, appellate courts may deem the order to incorporate a judgment of dismissal, since all that is left to

5

make the order appealable is the formality of the entry of a dismissal order or judgment." [Citation.]' [Citation.]" (Bullock v. City of Antioch (2022) 78 Cal.App.5th 407, 411, fn. 1.) We deem the trial court's order sustaining the demurrer and abating the quiet title action to incorporate an interlocutory judgment under section 597, and will review the order. (See Bullock, at p. 411, fn. 1.)

Mina argues the order is appealable because, despite the abatement language, the order in effect dismisses her entire action. This is incorrect. Nothing in the trial court's order indicates a dismissal of any causes of action. The trial court instead put Mina's complaint on hold pending resolution of the dissolution action. The order is appealable not as an order of dismissal, but as an interlocutory order of abatement under section 597.

C. Mina Fails To Show the Trial Court Erred By Sustaining the Demurrer

The crux of Mina's argument on appeal is that the family law court, although having jurisdiction in the dissolution action to determine whether property is separate or community, lacks the power to quiet title and set aside the allegedly forged deed. She contends she therefore was entitled to bring a parallel civil action to obtain the relief unavailable in the dissolution proceeding.^[4]

6

A defendant demurring under section 430.10, subdivision (c) "must show that the parties, cause of action, and issues are identical, and that the same evidence would support the judgment in each case." (5 Witkin, Cal. Procedure (6th ed. 2021) Pleading, § 970, p. 365.) Here, the dissolution action and Mina's quiet title action involve the same parties and address the same issue, namely whether Mina is entitled to 50 percent of the Duarte house. It would appear Mina would rely on the same evidence in both proceedings in order to prove the deed conveying the house to Omar was forged-certainly on appeal Mina does not identify any evidentiary differences between the two proceedings.

Mina argues, "The elements to prove a [quiet title] action are not the same as proving community property interest in a divorce." In determining what constitutes a cause of action, California applies" '[t]he "primary rights" theory, under which the invasion of one primary right gives rise to a single cause of action.' [Citations.]" (Bay Cities Paving &Grading, Inc. v. Lawyers' Mutual Ins. Co. (1993) 5 Cal.4th 854, 860.) Under the primary rights theory," 'the "cause of action" is based upon the harm suffered, as opposed to the particular theory asserted by the litigant....Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief.' [Citation.]" (Ibid.; see Pitts v. City of Sacramento (2006) 138 Cal.App.4th 853, 856 [applying primary rights analysis when reviewing demurrer under section 430.10, subdivision (c)].)

The trial court found, and we agree, that the primary right at issue in Mina's quiet title suit was identical to a primary right at issue in the dissolution proceeding-Mina's entitlement to the

7

Duarte home. It does not matter for purposes of section 430.10, subdivision (c) that Mina's quiet title action asserts that right under different theories with different elements.

Mina's assertion...