Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV032759
McAdams, J.
Petitioner Robert Welch (Robert) and real party in interest Jeanne Welch (Jeanne) 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 Robert’s 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). We shall also vacate the temporary stay order issued in June 2007.
Hereafter, we shall refer to the parties by their first names for the sake of clarity and not out of disrespect. (Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1 (Rubenstein).)
The facts are taken from Jeanne’s third amended complaint. Upon reviewing a court order after demurrer, “[w]e 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.” (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6, internal quotation marks omitted.)
Jeanne petitioned for dissolution of the marriage in 1991. The parties signed an MSA that provided, among other things, that Robert would pay Jeanne spousal support and child support. The MSA was incorporated into a judgment of dissolution.
In December 1998, Jeanne filed an order to show cause (sometimes OSC) in family court alleging Robert was in violation of the judgment because he had failed to pay child support and spousal support. Jeanne asked the court to enforce the judgment, determine arrearages, and increase Robert’s support obligation. Robert owed over $200,000 in back support.
In response, Robert told Jeanne he was working for a start-up company at a greatly reduced salary and “would not be earning any money that year or the next year.” Robert asked Jeanne to modify the judgment and forgive past due support payments. Jeanne agreed to decrease the amount of the support payments and to waive all but $30,000 of the arrearages; Robert promised never to be late with the payments again. The parties signed a written agreement modifying the judgment (hereafter sometimes the 1999 Agreement). The parties believed they filed their new agreement with the court and obtained a judgment or order modifying their family law judgment.
The documents submitted in support of the writ petition do not contain a copy of the 1999 Agreement.
In 2004, Jeanne discovered that Robert earned $1.5 million in 1999.
Procedural History
In December 2004, Jeanne filed a civil action against Robert alleging fraud and negligent misrepresentation. Robert’s challenges to the original and first amended complaints were successful.
Jeanne filed a second amended complaint, which was not challenged. After discovering that the 1999 Agreement had not been incorporated into a judgment, the court granted Jeanne’s request to file a third amended complaint. The third amended complaint alleges causes of action for fraud, negligent misrepresentation, and declaratory relief. The declaratory relief action requested an order “[p]ursuant to Family Code section 2120 et seq.” setting aside the 1999 Agreement since the modification was the “result of an agreement that was inequitable when made due to [Robert’s] actual fraud, perjury, material misrepresentations or other affirmative acts of misconduct.”
Unless otherwise stated, all further statutory citations are to the Family Code.
Robert demurred to the fraud and negligent misrepresentation causes of action in the third amended complaint. He argued: (1) a civil action may not be brought for misrepresentations made in connection with a family law proceeding and (2) the tort claims were barred by the litigation privilege (Civ. Code, § 47, subd. (b)). Jeanne opposed the demurrer, arguing that her tort claims were not barred because the 1999 Agreement had not been reduced to a judgment or order. She argued her claims would “merely remedy fraudulent conduct involving a private agreement between the parties.”
Robert also filed a motion for judgment on the pleadings (MJP) on the declaratory relief cause of action. We do not know the grounds for the MJP, since a copy was not included with the writ petition. Jeanne did not oppose the MJP.
The court overruled the demurrers and granted the MJP without leave to amend. The court reasoned that since the 1999 Agreement had not been incorporated into a judgment or order and the allegedly fraudulent conduct did not occur during the pendency of the dissolution action, the statutory remedies provided in sections 2120 et seq. and 3690 et seq. do not provide Jeanne’s exclusive remedy.
Robert has petitioned this court for a writ of mandate or prohibition directing the trial court to set aside its order overruling the demurrer and to enter a new order sustaining the demurrer without leave to amend. We issued an order to show cause why a peremptory writ should not issue as requested in the petition.
Discussion
I. Propriety of Writ Review
At the outset, we address the propriety of writ review notwithstanding the availability of a remedy by appeal. After we issued the OSC, Jeanne urged us to summarily deny the petition, arguing that Robert cannot meet the threshold requirements of showing irreparable injury and the lack of an adequate remedy at law. She contended a post-trial, post-judgment appeal is an adequate remedy and that irreparable harm is seldom established because the petitioner will have to bear the time and expense of an unnecessary trial in the event the trial court was wrong. Robert argued that if the writ is not granted, he will have to endure an unnecessary jury trial and appeal.
Where the trial court improperly overrules a demurrer to all causes of action, the appellate court may issue a writ of mandate directing that the demurrer be sustained so that the parties will not be compelled to go through a needless trial. (Fair Employment & Housing Com. v. Superior Court (2004) 115 Cal.App.4th 629, 633.) The delay and expense of an unnecessary litigation, including its impact on judicial resources, are valid considerations in deciding whether to grant writ review. (H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1367, citing Phelan v. Superior Court (1950) 35 Cal.2d 363, 370.) In this case, the delay, expense, and impact on court resources are obvious. The parties have spent three years in law and motion disputes settling the pleadings and there is no reason to believe that the intensity of the litigation will lessen. This case meets the requirements for writ review.
II. Standard of Review
Our only task in reviewing a ruling on a demurrer is to determine whether the complaint states facts sufficient to state a cause of action. Accordingly, we assume the complaint’s properly pleaded material allegations are true and give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) We examine the complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any available legal theory. (McCall v. PacificCare of Cal., Inc. (2001) 25 Cal.4th 412.)
III. Contentions
Robert contends Jeanne cannot state a cause of action for fraud or negligent misrepresentation because the alleged misrepresentations he made in connection with the 1999 Agreement were absolutely privileged under the litigation privilege and because a plaintiff may not maintain a civil action for alleged misrepresentations made in connection with a dissolution of marriage proceeding.
Jeanne argues the trial court properly overruled the demurrer because the misrepresentations were not made in connection with a family law proceeding since the 1993 judgment in the family law action was final and the 1999 modifications to the MSA were never reduced to a judgment. She maintains her civil action for misrepresentation should go forward because the 1999 Agreement is “simply a private agreement between the parties alone.” She also contends that if we grant the petition, she will be left without a remedy.
IV. Propriety of Pursuing Misrepresentation Claims as a Civil Action
“[F]amily 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 (Askew [v. Askew (1994) 22 Cal.App.4th 942]), malicious prosecution (Bidna [v. Rosen (1993) 19 Cal.App.4th 27]), or securities law violation (d’Elia [v. d’Elia (1997) 58 Cal.App.4th 415 (d'Elia)]). 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).)
Neal is factually and procedurally similar to this case. The former spouses in Neal obtained a judgment of dissolution that resolved their property and support obligations. (Neal, supra, 90 Cal.App.4th at p. 23.) The former husband filed an OSC three years later, seeking to reduce his child support obligation. (Id. at p. 24.) At that time, his ex-wife claimed he owed her money on a promissory note under the judgment on the property issues and that he was in arrears on child support. (Id. at pp. 23-24.) At the hearing on the OSC, the parties agreed to a series of stipulations to settle their claims, including a promise by the former husband to pay $11,500. Six months later, the former husband had not paid anything toward the new obligation. (Id. at p. 24.) The ex-wife filed a motion to set aside the stipulation, claiming her ex-husband had misrepresented his intentions to obtain a loan. The former husband filed a civil action for fraud, declaratory relief, breach of contract, and imposition of a constructive trust, alleging that his ex-wife had made false statements at the OSC and that he had paid the amount due. (Ibid.) The former wife demurred to the civil action, arguing that the family court had jurisdiction over the matter because it was already pending in family court. The trial court overruled the demurrer and the former wife filed a writ petition.
The appellate court granted the writ petition. It concluded that “this case is merely family law waged by other means” and directed the trial court to sustain the demurrers without leave to amend. (Neal, supra, 90 Cal.App.4that pp. 26-27.) The court observed that the former husband had “sued his ex-wife for breach of contract simply because she allegedly did not comply with the terms of a family law judgment.” (Id. at p. 26.) The court explained, “He has sued for fraud based on statements made at the family law OSC…. He has sued her for abuse of process based on false representations in family law court. He has sued her for declaratory relief based on the dispute in the family law case over whether he has paid what he owes under the family law judgment.” (Id. at p. 26.) The court concluded, “In substance this case is a family law OSC with civil headings.” (Ibid.)
Similarly, in d’Elia, the court held, “when the fraud claim is predicated on misrepresentations of value of community stock made in the process of dissolution, the remedy is the traditional one of timely seeking to set aside the judgment or marital settlement agreement in the appropriate forum, not a securities fraud suit.” (d’Elia, supra, 58 Cal.App.4th at p. 432.) The court in Askew held that the trial court erred when it failed to dismiss the husband’s civil action, which “sought to preempt the family law court from determining issues it already had jurisdiction to determine” and which “were the province of the family law court in the first place.” (Askew, supra, 22 Cal.App.4th at pp. 965-966.)
Jeanne argues this case is distinguishable from Neal because the alleged misrepresentations and modification of the agreement at issue in Neal occurred as part of the “actual Family Court proceedings” during a formal OSC hearing, while the parties in this case agreed to modify Robert’s obligations outside of any judicial proceeding. We are not persuaded that this distinction makes a difference. Although the parties negotiated the 1999 Agreement outside of court, their agreement modifying the MSA is founded on and modifies an existing family law judgment. It was prompted by Jeanne’s filing of an OSC in the family law case. It resolves family law issues related to continuing support payments and the forgiveness of past due support payments. But for the prior dissolution judgment and the filing of the OSC, the parties would not have entered into the new agreement. In addition, the parties intended to reduce the 1999 Agreement to a judgment and had assumed, through three rounds of pleadings, that the modification of the MSA had, in fact, been merged into a new family law judgment or order. It was only through fortuity or inadvertence that the parties failed to merge the 1999 Agreement into a judgment. As the court observed in Neal, we must examine the substance of a claim rather than its nominal heading. (Neal, supra, 90 Cal.App.4th at p. 25.) For these reasons, we conclude the propriety of Robert’s conduct was a matter for the family law court and Jeanne cannot file a civil action in tort for the alleged misrepresentations related to this family law matter.
V. Section 2120, et seq.
Notwithstanding the authority set forth above and compelling reasons for resolution in family law court, Jeanne in effect asserts that, since relief under section 2120 et seq. is not available to her, the critical inquiry should not be concerned with the substance of her claims but rather with the question whether her tort claims “conflict with any judgment.” She argues that since the 1999 Agreement was never merged into a judgment, her requested relief is outside the procedure set forth in section 2120 et seq. for setting aside dissolution judgments. She contends that this lack of merger allows her to proceed with her tort claims since they do not “conflict with any judgment.” Moreover, the trial court found that since the allegedly fraudulent conduct did not occur during the pendency of the dissolution action and the 1999 Agreement had not been incorporated into a judgment or order, the statutory remedies provided in sections 2120 et seq. and 3690 et seq. do not provide Jeanne’s exclusive remedy. For these reasons, we shall address the impact of section 2120 et. seq.
Section 3690 et seq. sets forth the grounds for relief from a support order (as distinguished from a judgment) after the six-month time limit in section 473 of the Code of Civil Procedure has run. (§ 3690, subd. (a).) Although the trial court relied on section 3690 et seq., the parties do not brief the impact of this separate statutory scheme and we shall not address it here.
Section 2120 et seq. provides a comprehensive statutory scheme for setting aside property division and support judgments after the time for relief pursuant to Code of Civil Procedure section 473 has passed. Nothing in the scheme suggests that the authorized relief includes a tort remedy. (Rubenstein, supra, 81 Cal.App.4th at p. 1148.) The statutory scheme itself supports that conclusion. Section 2128 enumerates several remedies that coexist with section 2120 set-aside relief. A tort remedy is not listed in section 2128 and by implication must be excluded. (Rubenstein, at pp. 1147-1148.)
Section 2128 provides in part: “(a) Nothing in this chapter prohibits a party from seeking relief under Section 2556. [¶] (b) Nothing in this chapter changes existing law with respect to contract remedies where the contract has not been merged or incorporated into a judgment. [¶] (c) Nothing in this chapter is intended to restrict a family law court from acting as a court of equity. [¶] (d) Nothing in this chapter is intended to limit existing law with respect to the modification or enforcement of support orders.”
One case, Dale v. Dale (1998) 66 Cal.App.4th 1172, 1175, stands alone in holding that a defrauded spouse may bring a tort action for concealment of community assets as an alternative to a motion to set aside the judgment. In both Rubenstein and Kuehn v. Kuehn (2000) 85 Cal.App.4th 824, 833-834 (Kuehn), the Second District Court of Appeal characterized Dale as “a major departure from existing law” and noted that Dale had not been cited by any California Court. (Rubenstein, supra, 81 Cal.App.4th at pp. 1146-1147; Kuehn, supra, at p. 834.) In both cases, the court concluded that the statutory scheme preempts a tort remedy when a judgment is involved.
Jeanne cites Dale and acknowledges that it has been subject to criticism. She argues however that Rubenstein and Kuehn, unlike the instant action, involved efforts to upset a dissolution judgment, whereas this case involves an agreement that was never merged into or incorporated into a judgment.
Thus the question presented is whether the holding from Rubenstein and Kuehn, which bars a tort action in cases in which one of the parties seeks to set aside a family law judgment that was obtained by fraud, applies in this case where the modification to the MSA was never reduced to a judgment. The parties do not cite any authority directly on point.
“[S]ection 2120 et seq. speaks only to property division and support judgments; it does not address what happens to an underlying marital settlement agreement merged or incorporated into the judgment. [¶] Nonetheless, as under prior law, to obtain complete relief, the aggrieved party’s motion should seek to set aside both the judgment and the underlying MSA….” (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2007) ¶ 16.141, p. 16-40.1 citing Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1072 [“because a marital settlement agreement is no longer merely a contract once incorporated into a valid final judgment, … motions to set aside valid judgments incorporating marital settlement agreements must also include a motion to set aside the marital settlement agreemen”].)
Marital settlement agreements are usually merged into judgments of dissolution. (In re Marriage of Lynn (2002) 101 Cal.App.4th 120, 129-130.) The parties may agree to merge all or a portion of their MSA into a judgment. If the MSA has not been merged into a judgment, the MSA survives as an independent legal instrument. (Marriage of Lane (1985) 165 Cal.App.3d 1143, 1147-1148 (Lane) [because there was no merger, breach of warranty action available to enforce warranties in MSA].) Obligations that have not been merged into a judgment remain enforceable by ordinary contract remedies, but not by execution, contempt, or any other remedy for enforcing a judgment. (Id. at pp. 1147-1149; § 2128, subd. (b).) Whether or not an MSA is merged into the judgment of dissolution depends on the intent of the parties and the trial court, the language of the MSA and the judgment, whether the MSA is incorporated into the body of the judgment or as an attachment, and the extent to which the judgment purports to order the parties to perform the terms of the agreement. (Lane, supra, 165 Cal.App.3d at pp. 1147-1150.)
An MSA or any portion thereof that has not been merged into a judgment is voidable under general contract principles where a party lacked capacity to contract or consented due to fraud, duress, undue influence or mistake. (Civ. Code, § 1556 et seq.; In re Marriage of Egedi (2001) 88 Cal.App.4th 17, 22.) The court also has the power to invalidate an MSA if it finds the agreement was inequitable even though not induced through fraud or compulsion. (In re Marriage of Egedi, at pp. 22-23.)
Jeanne cites section 2128, subdivision (b), which provides: “Nothing in this chapter changes existing law with respect to contract remedies where the contract has not been merged or incorporated into a judgment.” (Italics added.) While this provision expressly preserves contract remedies as coexistent with the set-aside relief provided in section 2120 et seq., it does not authorize the tort remedy Jeanne seeks. Moreover, the statutory scheme does not “limit existing law with respect to the modification or enforcement of support orders.” (§ 2128, subd. (d).) As noted before, a tort cause of action is not among the coexisting remedies enumerated in section 2128 and by implication is statutorily excluded. (Rubenstein, supra, 81 Cal.App.4th at p. 1148.)
We note also that the family court has continuing jurisdiction over child and spousal support judgments and orders even after a final judgment has been entered. (§ 2010, subd. (c); In re Marriage of Armato (2001) 88 Cal.App.4th 1030, 1040-1042 [child support]; §§ 3603 [temporary support orders “may be modified or terminated at any time”], 3651, subd. (a) [subject to exceptions enumerated in statute, “a support order may be modified or terminated at any time as the court determines to be necessary”]) and that the subject matter of the 1999 Agreement was past and future support.
Moreover, the court has continuing jurisdiction over private MSA’s for support. Unless otherwise specifically agreed by the parties in writing or orally before the court, private MSA’s providing for spousal support are subject to modification by the court even though the agreement has not been approved by the court or merged into a judgment or order. (§ 3591, subd. (a); In re Marriage of Maytag (1994) 26 Cal.App.4th 1711, 1714-1715 [section 3591 extends to “private agreements” and is not limited to agreements that have been approved by a court and that have been merged into a judgment or order] citing Esserman v. Esserman (1982) 136 Cal.App.3d 572, 577 [“neither court approval nor merger into a decree is necessary before a court may exercise its power to modify”].)
Section 3591 provides: “(a) Except as provided in subdivisions (b) and (c), the provisions of an agreement for the support of either party are subject to subsequent modification or termination by court order. [¶] (b) An agreement may not be modified or terminated as to an amount that accrued before the date of the filing of the notice of motion or order to show cause to modify or terminate. [¶] (c) An agreement for spousal support may not be modified or revoked to the extent that a written agreement, or, if there is no written agreement, an oral agreement entered into in open court between the parties, specifically provides that the spousal support is not subject to modification or termination.”
In light of the holdings in Rubenstein and Kuehn precluding a tort remedy when the MSA has been merged into the judgment, the criticism of Dale, the express provision in section 2128, subdivision (b) preserving contract remedies in cases in which the marital settlement agreement has not been merged into a judgment, the subject matter of the 1999 Agreement, and the court’s continuing jurisdiction over the support issues addressed in the 1999 Agreement, we conclude that even though the 1999 Agreement, was never incorporated into a judgment, Jeanne cannot state causes of action in tort for Robert’s alleged misrepresentations regarding his income when they negotiated the 1999 Agreement and that her remedy is limited to an action or motion to vacate the 1999 Agreement.
VI. Asserted Lack of Remedy
In opposition to the writ petition, Jeanne argues that she is not attempting to engage in “ ‘family law by other means’ ” and that if we grant the writ petition, she has no family law remedy since the trial court granted Robert’s motion for judgment on the pleadings on her declaratory relief action. Jeanne’s third amended complaint contained a third case of action for declaratory relief pursuant to section 2120 et seq. that requested “an order setting aside the parties’1999 modification of their [MSA] and support order” because the 1999 Agreement and “all orders entered consistent therewith [were] inequitable when made due to” Robert’s misrepresentations. We note that the trial court granted the motion for judgment on the pleadings because it was unopposed and that it did not address the merits of the claim.
Prior to oral argument, we asked the parties to address the impact of section 3591 on the issues presented here. At oral argument, Jeanne argued that she does not have a remedy in family court. She argued that the only claims that can be brought in a family law proceeding are those authorized by the Family Code and that no Family Code section permits her to proceed with a claim for damages in family court. Jeanne also asserted that section 3591, subdivision (b) only permits prospective modification of the 1999 Agreement from the date of the filing of any new notice of motion or OSC to modify the 1999 Agreement. She states that since the original OSC, which was filed in December 1998, was taken off calendar after the parties entered into the 1999 Agreement, the court can only grant relief from the date of filing of a new OSC. Jeanne contends that under that rule, at a minimum, she would not obtain any relief for the four-year period that she was operating under the misunderstanding that Robert had no money. Jeanne asserts that if she cannot get relief retroactive to 1998, she is entitled to proceed in civil court on a tort cause of action.
Robert counters Jeanne is not without a remedy. At oral argument, he asserted there is no reason Jeanne cannot go to family court and seek a rescission of the 1999 Agreement that would restore the parties to the positions they were in prior to the time they entered into the 1999 Agreement. He contends Jeanne is entitled to seek relief in family court back to the date of the filing of her original OSC in December 1998 and that he would not oppose granting relief back to the date of filing the original OSC.
In reviewing this issue, we consider the nature of family court. As the court stated in In re Chantal S. (1996) 13 Cal.4th 196, 201, “ ‘family court’ refers to the activities of one or more superior court judicial officers who handle litigation arising under the Family Code. It is not a separate court with special jurisdiction, but is instead the superior court performing one of its general duties.” The parameters of the family court’s jurisdiction are set forth in section 2010, which provides in relevant part: “In a proceeding for dissolution of marriage, for nullity of marriage, or for legal separation of the parties, the court has jurisdiction to inquire into and render any judgment and make orders that are appropriate concerning the following: [¶] … [¶] (c) The support of children for whom support may be ordered…. [¶] (d) The support of either party.”
The 1999 Agreement was clearly under the jurisdiction of the family court. It was intended to modify an existing family law judgment and addressed issues such as the disposition of Jeanne’s claim for arrearages (back due support) and future support.
In our view, section 3591, subdivision (b) does not preclude Jeanne from bringing a contract action for rescission of the 1999 Agreement in family court. As note above, section 3591, subdivision (b) provides: “An agreement may not be modified or terminated as to an amount that accrued before the date of the filing of the notice of motion or order to show cause to modify or terminate.” (Italics added.) An action for rescission would not modify or terminate the 1999 Agreement. Instead, it treats the parties as though the contract never existed and restores them to the positions they in before entering into the contract. (Akin v. Certain Underwriters at Lloyd’s London (2006) 140 Cal.App.4th 291, 298.) We therefore conclude, in the event Jeanne seeks rescission of the 1999 Agreement, section 3591, subdivision (b) does not preclude her from obtaining relief back to the date the date of the filing of her OSC in December 1998. To hold otherwise would vitiate the nature of the remedy in an action for rescission.
Moreover, there is nothing unusual about bringing an action for rescission in family court. (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1525-1526 [rescission of interspousal agreement transferring property], Clanton v. Clanton (1942) 52 Cal.App.2d 550, 553-554 [no rescission of property settlement agreement].) In our view, the family court is best suited to hear Jeanne’s claim. The context of Jeanne’s claim is the parties’ attempted modification of an existing family law judgment and it addresses issues concerning support, over which the family court retains jurisdiction. If rescission is granted, the court will have to evaluate claims of past due support and arrearages, over which the family court has expertise.
For these reasons, we conclude there is no merit to Jeanne’s contention that she is without a remedy.
In summary, Jeanne’s remedy for Robert’s alleged misrepresentations, which led to the 1999 Agreement to modify the existing family law judgment, is in the family court. Jeanne should be allowed to state whatever causes of action or file whatever motions are available to her in family court to set aside the 1999 Agreement, other than an action in tort. In view of: (1) the public “interest in ensuring proper division of marital property, in ensuring sufficient support awards, and in deterring misconduct” (§ 2120, subd. (c)); (2) section 2128’s express reservation of contract remedies; and (3) our standard of review, which directs us to determine whether Jeanne can state a cause of action under any available legal theory, we shall direct the trial court to enter an order sustaining Robert’s demurrer with leave to amend to permit Jeanne to amend her civil complaint to state whatever causes of action she may have, other than an action in tort, to vacate the 1999 Agreement. We shall also direct the court to transfer the civil action to the family law department and consolidate it with the existing family law case.
VII. Litigation Privilege
The litigation privilege in Civil Code section 47, subdivision (b) bars derivative tort actions based on privileged communications. (Silberg v. Anderson (1990) 50 Cal.3d 205, 212-216.) Our State Supreme Court “has repeatedly stated that the litigation privilege bars all tort causes of action except malicious prosecution.” (Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 960, italics added.) Because we hold that Jeanne cannot maintain a civil action in tort for Robert’s alleged misrepresentations in procuring the 1999 Agreement, we need not address the parties’ arguments regarding the applicability of the litigation privilege to Jeanne’s tort causes of action. The applicability of the litigation privilege to causes of action other than those sounding in tort is not before us.
Disposition
Let a peremptory writ of mandate issue directing respondent court to vacate its March 16, 2007 order overruling Robert’s demurrer to the first and second causes of action in the third amended complaint, and to enter a new order sustaining Robert’s demurrers to the first and second causes of action in the third amended complaint 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 1999 Agreement. We also direct respondent court to transfer this matter to the family court and consolidate this action with the family law action (case number 1-91-FL-014736) since the subject matter of this complaint arises out of the modification of the judgment in that case. The temporary stay order issued on June 14, 2007, is vacated.
The parties shall bear their own costs in this writ proceeding.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J.