Filed 9/23/13 Ricotta v. San Diego Co. Employees Retirement Assn. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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



THOMAS RICOTTA, SR.,                                               D062839

         Plaintiff and Appellant,

         v.                                                        (Super. Ct. No.
                                                                    37-2012-00052700-CU-FR-NC)
SAN DIEGO COUNTY EMPLOYEES
RETIREMENT ASSOCIATION,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of San Diego County, Robert P.

Dahlquist, Judge. Affirmed.

         Thomas Ricotta, Sr., Plaintiff and Appellant in pro. per.

         Crowell & Moring, Steve P. Rice and Queena Mewers for Defendant and

Respondent.
                                             I.

                                    INTRODUCTION

       Thomas Ricotta, Sr. (Thomas) filed a complaint against the San Diego County

Employees Retirement Association (SDCERA) alleging seven causes of action. All of

Thomas's claims are based on the premise that SDCERA acted illegally in paying a

portion of Thomas's pension benefits to the estate of his former wife, Ellen Ricotta

(Ellen), pursuant to a 1998 family court order (1998 Order). Thomas maintains that the

1998 Order is defective and invalid.1 SDCERA filed a demurrer in which it argued that

it could not be held liable for obeying a court order, among other contentions. The trial

court sustained SDCERA's demurrer without leave to amend and entered judgment in

favor of SDCERA.

       On appeal, Thomas claims that the 1998 Order is invalid on various grounds,

including that the pension benefits are his separate property and may not be paid to his

former wife's estate. Thomas also claims that the 1998 Order was procured by extrinsic

fraud and violates federal law, including the Americans With Disabilities Act (42 U.S.C.

§ 12131 et. seq.).




1      Thomas also named the Estate of Ellen Ricotta (Ellen's Estate) as a defendant.
The trial court granted a motion to quash the service of summons on Ellen's Estate. The
motion to quash is not contained in the record and Thomas has not raised any claim
pertaining to the motion in this appeal.
                                             2
       We conclude that SDCERA cannot be held liable for complying with the 1998

Order, and that the validity of the 1998 Order may not be adjudicated in this action. We

affirm the judgment.2

                                            II.

                   FACTUAL AND PROCEDURAL BACKGROUND

A.     The 1998 Order

       The family court entered the 1998 Order in a dissolution action between Thomas

and Ellen (In re Marriage of Ricotta (Super Ct. San Diego County, 1993, No. DN 64503)

(DN 64503).3 The order divides certain retirement benefits earned by Thomas and

provides in relevant part:



2       Thomas's briefs on appeal contain both a large number of irrelevant and
extraneous factual assertions without citation to the record, as well as a number of
disparaging remarks directed at members of the judiciary. For example, in his opening
brief, Thomas states, "The attorneys and the attorneys in black robes steal more money
than all the criminals in our prisons that used guns." Thomas's reply brief contains an
extensive discussion of purported judicial corruption that is entirely irrelevant to the
issues on appeal. Thomas is admonished that similar assertions in future filings in this
court may subject him to sanctions.

3      The 1998 Order indicates that Ellen is the petitioner, Thomas is the respondent,
and that SDCERA has been joined in the proceeding pursuant to Family Code section
2060. That section provides:

          "(a) Upon written application by a party, the clerk shall enter an
          order joining as a party to the proceeding any employee benefit plan
          in which either party to the proceeding claims an interest that is or
          may be subject to disposition by the court.

          "(b) An order or judgment in the proceeding is not enforceable
          against an employee benefit plan unless the plan has been joined as a
          party to the proceeding."
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           "On June 26, 1996, the Court of Appeal, Fourth Appellate District,
           Division One of the State of California ordered that all retirement
           payments awarded on behalf of [Thomas] commencing August 12,
           1994 [when Thomas turned 50], and continuing thereafter, shall be
           divided equally between [Thomas] and [Ellen]. . . .

           "[¶] . . . . [¶]

           "If [Ellen] predeceases [Thomas], the portion of [Thomas's] benefit
           payable to [Ellen] . . . shall continue to be paid to [Ellen's] estate or
           designated beneficiary during [Thomas's] lifetime."

       The 1998 Order further provides:

           "The Court shall expressly reserve jurisdiction over the disposition
           of the retirement benefit earned by virtue of [Thomas's] employment
           with the County of San Diego and to make all necessary and
           appropriate orders regarding those benefits pursuant to applicable
           law."

B.     Thomas's complaint in this action

       In April 2010, Thomas filed a complaint against SDCERA in which he alleged

claims labeled extrinsic fraud, breach of contract, violations of the Americans With

Disabilities Act (42 U.S.C. § 12131 et. seq.), violations of various provisions of the

Government Code, violations of the County Employees Retirement Law (Gov. Code,

§ 31450), violation of the Fourteenth Amendment of the United States Constitution and

injunctive relief.

       In his complaint, Thomas alleged that the "[1998 Order] that gave one half of

Thomas' disability pension to . . . [Ellen's Estate] is defective and invalid." Thomas

claimed that SDCERA's payment of the benefits to Ellen's Estate rendered it "liable for

all funds dispersed by this defective and invalid order . . . ." According to Thomas, the

1998 Order is invalid for a number of reasons, including that it was procured by extrinsic

                                               4
fraud, Thomas did not sign the order, and the benefits that were the subject of the order

are his separate property. Thomas also contended that the 1998 Order violated various

provisions of federal and state law, including the County Employees Retirement Law

(Gov. Code, § 31450) and the Americans With Disabilities Act (42 U.S.C. § 12131 et.

seq.).

C.       SDCERA's demurrer

         SDCERA filed a demurrer to the complaint. In its demurrer, SDCERA noted that

Thomas had previously unsuccessfully sought reversal of 1998 Order both in this court

and in the Supreme Court. SDCERA also noted that Thomas had unsuccessfully sought

reversal of the 1998 Order by filing a lawsuit against SDCERA in 2011 in federal court.

         With respect to the current action, SDCERA argued that Thomas appeared to

contend that the 1998 Order was invalid to the extent that the order: (1) awards one-half

of Thomas's pension payments after he turned 50 to Ellen and (2) makes the former

spouse's benefits inheritable. SDCERA argued that Thomas had previously raised these

same contentions in prior proceedings in this court and in the Supreme Court. SDCERA

further argued that it could not be held liable for complying with the 1998 Order.

SDCERA also contended that Thomas's claim for extrinsic fraud failed as matter of law

because it was untimely. In addition, SDCERA maintained that Thomas would be unable

to establish the "meritorious defense" element of his extrinsic fraud claim both because

the doctrine of collateral estoppel precluded him from raising that defense and because

the 1998 Order complied with controlling California law.



                                             5
      SDCERA requested that the trial court take judicial notice of various records

pertaining to: Thomas's 1993 marital dissolution action (DN 64503); the 1998 Order

entered in DN 64503; and the 2011 federal lawsuit brought by Thomas against SDCERA.

      It appears that Ricotta may have filed an opposition to the demurrer, but he has not

included the opposition in the record on appeal.

D.    The trial court's ruling

      After SDCERA filed a reply, the trial court held a hearing on the motion, and later

entered an order granting SDCERA's request for judicial notice and sustaining

SDCERA's demurrer without leave to amend. The court reasoned in part:

          "[SDCERA's] general demurrer to [Ricotta's] entire complaint is
          sustained without leave to amend. This ruling is without prejudice
          to the possibility of [Ricotta] seeking an order in Family Court Case
          No. DN 64503 to vacate [the 1998 Order].

          "In the current civil jurisdiction case, [Ricotta] seeks damages from
          SDCERA on account of SDCERA's payments of pension benefits in
          accordance with [the 1998 Order]. Ricotta asserts in his complaint
          that the [1998 Order] is defective and invalid. If that is true, then
          Ricotta's remedy is to obtain an order from the Family Court
          vacating the order, not seeking an award of money damages in a
          separate civil case. SDCERA may not be held liable for damages for
          complying with an existing order issued by the Family Court. So
          long as the [1998 Order] remains in place . . . Ricotta's complaint
          fails to state facts upon which relief may be granted."

      The trial court subsequently entered judgment in favor of SDCERA.

E.    Thomas's appeal

      Ricotta appeals from the judgment.




                                            6
                                             III.

                                       DISCUSSION

    The trial court did not err in sustaining SDCERA's demurrer without leave to amend

        Thomas contends that the trial court erred in sustaining SDCERA's demurrer

without leave to amend.4

        "In evaluating a trial court's order sustaining a demurrer, we review the complaint

de novo to determine whether it contains sufficient facts to state a cause of action.

[Citation.]" (Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1589.)

        Thomas's claims for breach of contract, violations of the Americans With

Disabilities Act (42 U.S.C. § 12131 et. seq.), violations of various provisions of the

Government Code, violations of the County Employees Retirement Law (Gov. Code,

§ 31450), and violation of the Fourteenth Amendment of the United States Constitution

appear5 to be premised on Thomas's assertion that SDCERA may be held liable for

money damages for distributing Thomas's benefits pursuant to the 1998 Order because

the 1998 Order is invalid. None of these common law or statutory theories of liability

provide that an entity may be held liable for damages for complying with an existing

court order. Thus, the trial court properly sustained SDCERA's demurrer as to these

causes of action.




4      Thomas's arguments on appeal focus on his contention that the 1998 Order is
invalid.

5       As drafted, Thomas's complaint is difficult to understand.
                                              7
       With respect to Thomas's claims for extrinsic fraud and injunctive relief, Thomas

appears to seek a judicial determination that the 1998 Order is invalid.6 These causes of

action fail as a matter of law because Thomas may not adjudicate the validity of the 1998

Order in this action. Rather, in light of the family court's express reservation of

jurisdiction in DN 64503 "over the disposition of the retirement benefit earned by virtue

of [Thomas's] employment with the County of San Diego," any attempt to declare the

1998 Order invalid must be made in that action. Thomas's claims for extrinsic fraud and

injunctive relief thus also fail to state a cause of action.

        Accordingly, the trial court properly sustained SDCERA's demurrer to all of

Thomas's claims, without leave to amend.7




6      For example, Thomas asserts in his complaint that a final judgment may be set
aside due to extrinsic fraud. Thomas also asserts in his complaint that he has "stated a
cause of action for injunctive relief [so] that no more funds from his disability pension be
dispersed to the heirs of Ellen's [E]state until this issue is resolved."

7      Thomas does not raise any argument that his complaint may be amended to
properly state a cause of action.
                                                8
                                       IV.

                                 DISPOSITION

    The judgment is affirmed. Thomas is to bear costs on appeal.



                                                                   AARON, J.

WE CONCUR:



           McCONNELL, P. J.



               O'ROURKE, J.




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