Judge Bruce G. Iwasaki, Case Number: 23STCV21251, Date: 2025-04-22 Tentative Ruling

Tentative Ruling: The Motion to Dismiss the Complaint for failure to join an indispensable party is denied.

This is a private nuisance action. On September 5, 2023, Plaintiff Erica Goebel (Plaintiff) filed a Complaint against Defendant Bertrand and Dorothy Baylin Family Limited Partnership, alleging cause of action for (1.) private nuisance, and (2.) declaratory relief. The Complaint alleges that Defendant has maintained a tree in dangerous condition on their property, which poses a risk of injury to Plaintiff and Plaintiff’s property.

On March 5, 2025, Defendant moved to dismiss the Complaint on the grounds that Plaintiff has failed to join an indispensable party. Plaintiff opposes the motion.

The motion to dismiss is denied; Plaintiff is ordered to join non-party Dane Taylor as a party to this litigation.

Code of Civil Procedure section 389 addresses the joinder of necessary and indispensable parties.

Subdivision (a) of Section 389 provides: “A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party.” A party that must be joined under this provision is deemed a “necessary” party. (Countrywide Home Loans, Inc. v. Superior Court (1999) 69 Cal.App.4th 785, 791.)

Code of Civil Procedure section 389, subdivision (b), lists factors which the court must consider if a party cannot be joined. Specifically, section 389 provides:

“(b) If a person as described in paragraph (1) or (2) of subdivision (a) cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed without prejudice, the absent person being thus regarded as indispensable. The factors to be considered by the court include: (1) to what extent a judgment rendered in the person's absence might be prejudicial to him or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person's absence will be adequate; (4) whether the plaintiff or cross-complainant will have an adequate remedy if the action is dismissed for nonjoinder.”

Here, Defendant argues that non-party Dane Taylor (Taylor) is an indispensable party under Code of Civil Procedure section 389 and, thus, the Complaint must be dismissed.

“If a person [or entity] is determined to qualify as a ‘necessary’ party under one of the standards outlined above [under Code of Civil Procedure section 389, subd. (a)], courts then determine if the party is also ‘indispensable.’ ” (City of San Diego v. San Diego City Employees' Retirement System (2010) 186 Cal.App.4th 69, 83–84.)

By statute, the trial court “shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed without prejudice, the absent person being thus regarded as indispensable. The factors to be considered by the court include: (1) to what extent a judgment rendered in the person's absence might be prejudicial to him or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person's absence will be adequate; (4) whether the plaintiff or cross-complainant will have an adequate remedy if the action is dismissed for nonjoinder.” (Code Civ. Proc., § 389, subd. (b).)

The subdivision (b) factors “are not arranged in a hierarchical order.” (County of San Joaquin v. State Water Resources Control Bd. (1997) 54 Cal.App.4th 1144, 1149.) No single factor is dispositive, and the court's consideration of the factors is fact-dependent. (City of San Diego, supra, 186 Cal.App.4th at p. 84.) “ ‘Whether a party is necessary and/or indispensable is a matter of trial court discretion in which the court weighs “factors of practical realities and other considerations.” ’ ” (Ibid.)

“Indispensable parties have been identified as those who are essential for ‘a complete determination of the controversy’ [citations] or the ability of a court to enter ‘any effective judgment’ [citation].” (Kaczorowski v. Mendocino County Bd. of Supervisors, supra, 88 Cal.App.4th at p. 568.) “ ‘[A] person is an indispensable party [only] when the judgment to be rendered necessarily must affect his rights.’ ” (Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 808.)

Put another way, “[t]he controlling test for determining whether a person is an indispensable party is, ‘Where the plaintiff seeks some type of affirmative relief which, if granted, would injure or affect the interest of a third person not joined, that third person is an indispensable party. [Citation.]’ ” (Save Our Bay, Inc. v. San Diego Unified Port Dist. (1996) 42 Cal.App.4th 686, 692.)

Here, the tree at issue is located on the shared property line between 2090 Redcliff Street – Defendant’s Property – and 2076 Redcliff St. – property owned by non-party Taylor. (Baylin Decl., ¶ 3; Compl., ¶¶ 3, 7, 10.)

Based on this fact, Defendant argues that dismissal is necessary because Plaintiff seeks injunctive relief for removal or abatement of the tree, as well as monetary damages, which can only be sought against both owners of the tree. That is, the Court cannot grant complete relief requested by the Plaintiff because the Complaint’s request for removal of the tree would necessarily infringe on the rights of non-party Taylor as a co-owner of the tree.

As recognized by Civil Code section 834, “Trees whose trunks stand partly on the land of two or more coterminous owners, belong to them in common.” (Civ. Code, § 834; Kallis v. Sones (2012) 208 Cal.App.4th 1274, 1278.) “[N]either owner ‘is at liberty to cut the tree without the consent of the other, nor to cut away the part which extends into his land, if he thereby injures the common property in the tree.’ [Citation.]” (Kallis v. Sones (2012) 208 Cal.App.4th 1274, 1278.)

Thus, proceeding to a decision regarding the tree’s modification or removal without Taylor —who has a property interest in the tree – would directly impact Taylor’s property rights and interests. Based on the foregoing, Taylor is a necessary party to the litigation.

Defendant also argues that Taylor lacks capacity to consent to the removal of the tree(as alleged in the Complaint at paragraph 12) and this lack of capacity also prevents Taylor from being joined as a party to this action.

In opposition, Plaintiff does not dispute that Taylor is a necessary party and does not refute any of the evidence that Taylor lacks capacity to consent to removal of the tree. Rather, Plaintiff argues that she does not oppose the Court ordering that Taylor be made a party to the case and offers to file a first amended complaint, adding Taylor as a defendant, without delay.

Based on the foregoing, Taylor is a necessary party but not an indispensable party. That is, Taylor must be joined and there is no reason Taylor “cannot be made a party” this action.

If the court concludes that a necessary party is “subject to service of process, and whose joinder will not deprive the court of jurisdiction over the subject matter,” then the court “shall order” the party to be joined if he has not been so joined. (Code Civ. Proc., § 389, subd. (a).) It is only if the court determines that a necessary party cannot be joined, that the court must then decide whether to proceed with or dismiss the action under the statutory criteria in subdivision (b), “the absent person being thus regarded as indispensable” in the latter situation. (Code Civ. Proc., § 389, subd. (b); Countrywide Home Loans, Inc. v. Superior Court (1999) 69 Cal.App.4th 785, 791-792, fn. 3.)

As a preliminary matter, Defendant does not present adequate evidence of Taylor’s lack of capacity. Defendant submits Noah Baylin’s declaration purporting to opine on Taylor’s mental condition; Defendant also submits Los Angeles Police Department’s records that purport show that Taylor has a history of mental illness, was released from a psychiatric hospital, suffers from bipolar disorder and/or schizophrenia, and wanted to be placed on hold at Las Encinas mental health hospital. (Escano Decl., ¶¶ 6, Ex. F; Baylin Decl., ¶¶ 7-13.) There is no medical professional evidence opining on Taylor’s mental condition. Based on the evidence before the Court on this motion, there is no competent evidence demonstrating a lack of capacity under Probate Code section 810.

More importantly, as the opposition notes, a lack of capacity is not a basis for finding that service cannot be effectuated. Citing Probate Code section 812, Defendant argues that Taylor cannot be made a party to this action. (Mot., 9:24-10:10.) However, Probate Code sections 810 through 812 only describe the standards for mental capacity to enter into a contract or make other decisions; there is no cited legal authority that a lack of capacity prevents service on a party.[1]

Based on the foregoing, the Court will order Plaintiff to add Dane Taylor as a party to this litigation. (See Haller v. Burbank Community Hospital Foundation (1983) 149 Cal.App.3d 650, 659 [trial court “should have directed petitioner to amend his petition to join [the State Board of Medical Quality Assurance] as a party” rather than dismissing the petition for omission of an indispensable party]; Kraus v. Willow Park Public Golf Course (1977) 73 Cal.App.3d 354, 365, fn. 7 [“If, under the guidelines of section 389, an absentee is found by the court to be needed for a just adjudication of the case, the court must order his [or her] joinder if feasible.” [italics added].)

The motion to dismiss is denied. Plaintiff is ordered add Dane Taylor as a party to this action. Plaintiff is to file and serve a First Amended Complaint, consistent with this order, on or before May 6, 2025.

[1] In reply, Defendant argues that “The evidence presented by Baylin on this motion shows that Taylor lacks capacity to consent to removal of the tree. Therefore, even if Taylor is added, the Court will likely not even be able to grant Plaintiff’s relief.” (Reply, 2:24-26.) However, this argument ignores procedure by which a person who lacks capacity may appear in court as a party to the action, as either a plaintiff or defendant. (See Code Civ. Proc., § 372, subd. (a)(1) [when a person “who lacks legal capacity to make decisions ... is a party, that person shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceeding is pending, or by a judge thereof, in each case”]; Code Civ. Proc., § 373 [procedures for seeking appointment as guardian ad litem for adult lacking capacity]; Sarracino v. Superior Court (1974) 13 Cal.3d 1, 11-13 [facts supporting appointment as guardian ad litem may be established at proceeding in which guardian seeks to appear]; see also Conservatorship of John L. (2010) 48 Cal.4th 131, 143 [discussing procedural protections afforded conservatee in proceeding to establish conservatorship]; Conservatorship of Tian L. (2007) 149 Cal.App.4th 1022, 1028 [same].)

Judge Bruce G. Iwasaki

Department 58