Judge: Christian R. Gullon, Case: 24PSCV02030, Date: 2024-11-05 Tentative Ruling

Case Number: 24PSCV02030    Hearing Date: November 5, 2024    Dept: O

Tentative Ruling

DEFENDANT'S DEMURRER is OVERRULED because the complaint states sufficient facts to constitute a partition COA.

Background

This is a partition action.

On June 24, 2024, Plaintiff FREDERIC P. SCHMITT filed suit against BERNARDINA M. SCHMITT, an individual; DOES 1-20, INCLUSIVE, ALL PERSONS UNKNOWN CLAIMING LEGAL OR EQUITABLE RIGHT, TITLE, ESTATE LIEN, OR INTEREST IN THE REAL PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO PLAINTIFF’S INTEREST, OR ANY CLOUD UPON PLAINTIFF’S TITLE/INTEREST THERETO NAMED HEREIN AS DOES 21-40 alleging that Plaintiff and Defendant own half-interest and that Plaintiff seeks partition of the entire fee simple interest in the Property.

On August 2, 2024, Defendant filed a ‘Notice of Related Case’ indicating that the real property at issue and the same parties were involved in case KD 096153.

On August 5, 2024, Defendant filed the instant demurrer.

On August 12, 2024, the court issued the following minute order Re: Notice of Related Case stating in the relevant part the following: “The Court finds both cases originated in the East District, and the Notice of Related is to be determined by the Supervising Judge of the East District . . . The Court finds that the following cases, 24PSCV02030 and KD096153, are not related within the meaning of California Rules of Court, rule 3.300(a).” (emphasis added).

On October 21, 2024, Plaintiff filed an opposition.

To date, as of Sunday, November 3, 2024, the reply has been received (due 5 court days before hearing).

Discussion[1]

Defendant demurs on the grounds that the Family Court assigned to the dissolution matter has jurisdiction to resolve any property issues between the parties as indicated in the Judgment in that matter. More specifically, the demurrer states that the Judgment equally divided the abovementioned property between the parties, but gave no specifics as to how and when such division should occur. (Demurrer p. 4:4-8.) In opposition, the Plaintiff essentially states the same thing as to the Dissolution Judgment failing to “explain how the Parties would move forward with joint ownership, including ultimately to sell the Subject Property.” (Opp. p. 2:6-8.) Notwithstanding, the cases have been deemed NOT RELATED and as noted by Plaintiff, a copy of the Dissolution Judgment is not provided, there is no request for judicial notice, nor is there any explanation as to why that would be prohibit the current partition lawsuit.

Therefore, as the complaint complies with the five elements of CCP section 872.230 (¶1, ¶8, ¶12, ¶15), then the face of the pleadings does sufficiently state a COA for partition.

Conclusion

Based on the foregoing, the demurrer is OVERRULED.