Panesar v. Panesar CA4/1 ( 2013 )

Filed 8/9/13 Panesar v. Panesar CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
PRITPAL PANESAR, D060842
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2011-00091906-
CU-OR-CTL)
SANDRA PANESAR,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Judith F. Hayes, Judge. Reversed and remanded.
Sharron Voorhees for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
Pritpal Panesar sued his ex-wife, Sandra Panesar, for partition of property
allegedly acquired after they divorced, partnership dissolution, accounting and other
relief. Sandra demurred to the complaint, alleging the court lacked subject matter
jurisdiction because the case belonged in family court. The court sustained the
demurrer without leave to amend and dismissed the action. Pritpal appealed from the
judgment, and Sandra filed a notice of nonopposition.
Thereafter, the parties filed a "stipulation for reversal, remand to superior court,
and issuance of remittitur." We rejected the stipulation based on the parties' failure to
comply with Code of Civil Procedure section 128, subdivision (a)(8), and
subsequently ordered the parties to submit their stipulation in compliance with that
section. (Undesignated statutory references are to the Code of Civil Procedure.) The
parties have renewed their stipulation. We accept the stipulation and reverse the
judgment.
DISCUSSION
Before the court may accept and confirm the stipulated reversal or vacation of a
judgment, it must find both of the following: (1) "There is no reasonable possibility
that the interests of nonparties or the public will be adversely affected by the reversal";
and (2) "The reasons of the parties for requesting reversal outweigh the erosion of
public trust that may result from the nullification of a judgment and the risk that the
availability of stipulated reversal will reduce the incentive for pretrial settlement."
(§ 128, subd. (a)(8).) We make this factual determination based on the papers
submitted by the parties and our own review of the record. (Hardisty v. Hinton &
Alfert (2004) 124 Cal.App.4th 999, 1007.)
After examining the appellate record and the stipulation for reversal of the
judgment, we conclude there is no reasonable possibility that the interests of
nonparties will be adversely affected by the proposed reversal. (§ 128, subd.
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(a)(8)(A).) This is a private dispute between individuals concerning two parcels of
real property, two vehicles and other household items. Although there is a remote
possibility that Pritpal's mother may have an interest in the real property subject to the
dispute because Pritpal alleges that she contributed financially to the properties, this is
an issue that can be raised in the trial court. Thus, reversing the judgment will not
adversely affect her interests. Also, acceptance of the stipulated reversal will not
result in an erosion of public trust, nor will it reduce the incentive for pretrial
settlement. The parties are at the initial stages of their litigation and can proceed to
resolve their dispute in the trial court or through settlement.
Lastly, in order to accept the parties' stipulation to remand this case to the trial
court, we must determine whether the court erred in sustaining Sandra's demurrer on
"jurisdictional grounds."
Pritpal alleged the property subject to the dispute was acquired after the parties
divorced in 1987. In her demurrer, Sandra claimed the matter belonged in family court
because she and Pritpal did not separate until 2011 and Pritpal's 1987 divorce
proceedings in Nevada were invalid. She also asked the court to take judicial notice of
a grant deed for real property she acquired with Pritpal in 1993 as husband and wife
and a 2009 joint tax return. Pritpal requested that the court take judicial notice of
documents from the Nevada divorce proceedings, including his complaint for divorce,
Sandra's answer, and the court's divorce decree. The trial court granted the parties'
respective requests for judicial notice and concluded that the case "belong[ed] in
family court."
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Based on the record before us, we conclude the trial court erred in determining
on the basis of the pleadings and judicially noticed documents that the case
"belong[ed] in family court." The resolution of this matter turned on whether the
parties were divorced when the property in dispute was acquired. This is a contested
factual issue that cannot be resolved through a demurrer. (See Feldman v. Nassi
(1980) 111 Cal.App.3d 881, 886–887 [whether the parties' marriage was viable at the
time they entered into an agreement to share property and whether they were separated
for purposes of determining separate property were questions of fact which could not
be resolved on demurrer].)
Further, we note that the matter cannot be determined through the judicially
noticed documents. While the court may consider "any matter that is judicially
noticeable" (Cryolife, Inc. v. Superior Court (2003) 110 Cal.App.4th 1145, 1152),
" 'judicial notice of matters upon demurrer will be dispositive only in those instances
where there is not or cannot be a factual dispute concerning that which is sought to be
judicially noticed.' [Citation.]" (Joslin v. H.A.S. Ins. Brokerage (1986) 184
Cal.App.3d 369, 374–375.) That is because " '[a] demurrer is simply not the
appropriate procedure for determining the truth of disputed facts.' [Citation.]" (Id. at
p. 374.) Where, as here, the demurrer raises a disputed question of fact, the matter
cannot be resolved at the pleading stage. Thus, the trial court's determination that this
matter belongs in family court was premature.
Accordingly, we accept the parties' stipulation.
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DISPOSITION
Based on the stipulation of the parties under section 128, subdivision (a)(8), the
judgment is reversed and the case is remanded to the trial court for reinstatement. The
remittitur shall issue immediately. Each party shall bear its own costs on appeal.
MCINTYRE, J.
WE CONCUR:
BENKE, Acting P. J.
O'ROURKE, J.
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