Judge: Gary I. Micon, Case: 24CHCV02885, Date: 2025-04-10 Tentative Ruling

Case Number: 24CHCV02885    Hearing Date: April 10, 2025    Dept: F43

Dept. F43

Date: 04-10-25

Case # 24CHCV02885, Milman v. Toyota Motor Sales, U.S.A., Inc.

Trial Date: None set.

MOTION TO JOIN A NECESSARY PARTY OR JUDGMENT ON THE PLEADINGS

MOVING PARTY: Defendant Toyota Motor Sales, U.S.A., Inc.

RESPONDING PARTY: Plaintiff Ella Milman

RELIEF REQUESTED

Order joining indispensable party Lenny Bush as a plaintiff to this case, or in the alternative, judgment on the pleadings for failure to join an indispensable party.

RULING: Motion is granted.

SUMMARY OF ACTION

On August 24, 2019, Plaintiff Ella Milman (Plaintiff) purchased a new 2019 Toyota Highlander from Hamer Toyota dealership.  The vehicle began experiencing mechanical defects, and Plaintiff sued defendant Toyota Motor Sales, U.S.A., Inc. (Defendant) for violating the Song-Beverly Consumer Warranty Act and the Magnuson-Moss Warranty Act, alleging that defendant was unable to repair the defects and did not replace the car or make restitution.  The complaint alleges causes of action for breach of express warranty, breach of implied warranty, and violation of Bus. & Prof. Code sections 17200.  Plaintiff is represented in that action by her husband, attorney Lenny Bush.

Defendant filed its Third Amended Answer on November 4, 2024.  On October 14, 2024, Defendant’s counsel emailed Bush a meet and confer letter asking that Bush be joined as a plaintiff.  (Declaration of Julina Galanesi, ¶ 8, Exh. G.)  That same day, Bush responded stating he would not be joined as a plaintiff.  (Galanesi Dec., ¶ 9, Exh. H.)  The parties did not meet and confer about Defendant’s intent to move for judgment on the pleadings.

On February 11, 2025, Defendant moved to join attorney Bush to this case as a plaintiff and necessary party or, in the alternative, to grant Defendant judgment on the pleadings.  Defendant asserts that Bush is an indispensable party who has an interest in this case because he is a co-owner and buyer of Plaintiff’s Toyota Highlander.  Accordingly, Bush’s absence from this case means that complete relief cannot be afforded to Plaintiff or Bush.

Plaintiff opposes asserting that Defendant has waived its joinder argument by not raising joinder in its many answers despite knowing Bush’s co-buyer status since the complaint was served.  This is a direct violation of Code of Civil Procedure section 128.7(b)(1)-(3).  Additionally, Bush is not a necessary party under Code of Civil Procedure sections 389(a) or 389(b) because the Song-Beverly Act does not mandate joining co-buyers and no “substantial risk” of multiple lawsuits exists because Bush’s interest is protected by Plaintiff’s action.  Joining Bush to this action would force Bush to violate his duty of loyalty under California Rules of Professional Conduct, Rule 1.7(a)(2).  Defendant’s motion also violates Code of Civil Procedure section 425.16 by targeting Bush’s protected activity as litigation counsel.  The Magnuson-Moss Warranty Act does not mandate joinder of co-buyers or other parties, and Plaintiff as a registered owner of the Toyota Highlander may pursue her Magnuson-Moss claims independently.  Finally, dismissal under Code of Civil Procedure section 389(b) exceeds section 583.310’s five-year limit, prejudicing Plaintiff without benefiting Defendant.

In response, Defendant reiterates that Bush is both necessary and indispensable because he owns the vehicle at issue, the outcome of this case will affect Bush’s interest in the vehicle, and Defendant could be subjected to multiple inconsistent judgments.  The court would also lack jurisdictional authority to order Defendant to sign title of the vehicle back to Defendant.  There is no deadline for a joinder motion, and the opposition makes several false propositions about joinder deadlines based on misrepresenting legal authority.  The opposition fails to articulate how joining Bush triggers an Anti-SLAPP motion.  Regarding the Rules of Professional Conduct, Bush has an ethical duty to avoid acting as counsel on a case in which he knows he will be a witness.  By admitting he co-owns Plaintiff’s vehicle, Bush recognizes he is a primary witness in this case creating a conflict of interest.  Any such conflict of interest could be avoided by hiring a separate lemon law attorney.  Finally, this joinder motion is a procedural device that does not violate any of the law underlying Plaintiff’s causes of action.

ANALYSIS

Joinder

Plaintiff must join to the case all parties with a material interest in the subject of the case.  (Code Civ. Proc., § 389, subd. (a); Bianka M. v. Superior Court (2018) 5 Cal.5th 1004, 1018-19.)  A party has a material interest if: (1) in the person’s absence complete relief cannot accorded among those already parties to the action; or (2) a judgment rendered in the person’s absence might (a) prejudice a person’s ability to protect their interest in later litigation or (b) leave any of the parties before the court exposed to a risk of additional liability or inconsistent obligations.  (Code Civ. Proc., § 389, subd. (a); Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 808-09; Morrical v. Rogers (2013) 220 Cal.App.4th 438, 460-64.)

If it is not feasible to join the party, “the court must proceed to consider whether, ‘in equity and good conscience,’ the action should proceed in that person’s absence.”  (Code Civ. Proc., § 389, subd. (b); Bianka M., supra, 5 Cal.5th at p. 1019.)  “ If the person is found to be essential, or ‘indispensable,’ to the action, then the action must be dismissed.”  (Bianka M., supra, 5 Cal.5th at p. 1019.)  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; and (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).)

            Bush is a necessary party.

“A determination that the persons are necessary parties is the predicate for the determination whether they are indispensable parties.”  (Deltakeeper v. Oakdale Irrigation Dist. (2001) 94 Cal.App.4th 1092, 1100.)  Usually, all parties to a contract are necessary parties in an action involving the rights under the contract, but such parties are not always indispensable.  (Id. at p. 1106.)

The court finds that Bush is a necessary party because he has an ownership interest in Plaintiff’s 2019 Toyota Highlander, the subject matter of this action.  Plaintiff filed this action to determine whether Defendant violated the Song-Beverly Act and the Magnusson Moss Warranty Act by selling Plaintiff and Bush an allegedly defective 2019 Toyota Highlander.  Both Plaintiff and Defendant admit that Bush is a co-owner of Plaintiff’s Toyota Highlander.  (Declaration of Julina Galanesi, Exh. A - Retail Sales Contract; Opposition, p. 3:20-22.)  Plaintiff is suing for damages and equitable relief based on the Song-Beverly Act’s “repair or replace” provision and the Magnuson-Moss Warranty Act.  If the jury, or court, finds for the Plaintiff, Plaintiff may be required to return the vehicle to Defendant.  This would affect Bush’s interest in the vehicle because if Plaintiff were to return the vehicle and Bush then decided to sue to exercise his rights under the Song-Beverly Act, Bush would be prevented from doing because he would no longer have access to all the remedies available under the Song-Beverly Act and Magnusson-Moss Warranty Act.

            Bush is also indispensable to this case.

If plaintiff seeks affirmative relief which, if granted, would injure or affect the interest of a third party not joined, the third party is indispensable.  (Saurman v. Peter’s Landing Property Owner, LLC (2024) 103 Cal.App.5th 1148, 1169 [citing Washington Mutual Bank v. Blechman (2007) 157 Cal.App.4th 662, 667]; see also Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1016].)

“Failure to join an ‘indispensable’ party is not ‘a jurisdictional defect’ in the fundamental sense; even in the absence of an ‘indispensable’ party, the court still has the power to render a decision as to the parties before it which will stand. It is for reasons of equity and convenience, and not because it is without power to proceed, that the court should not proceed with a case where it determines that an ‘indispensable’ party is absent and cannot be joined.”  (Sierra Club, Inc. v. California Coastal Comm’n (1979) 95 Cal.App.3d 495, 500.)  

Bush is an indispensable party to this case because he co-owns Plaintiff’s 2019 Toyota Highlander, and the outcome of this case would affect Bush’s ownership interest in the vehicle and his rights under the Retail Sales Contract.  Co-owners are usually indispensable parties particularly when it is impossible to grant relief without affecting the rights of both co-owners.  (Worthington v. Kaiser Foundation Health Plan, Inc. (1970) 8 Cal.App.3d 435, 444-46 [joining plaintiff’s wife to breach of lease action and awarding damages to both because plaintiff and his wife were co-owners of the property at issue]; Southern Cal. Title Clearing Co. v. Laws (1969) 2 Cal.App.3d 586, 590 [holding plaintiff property co-owner could not terminate a community oil lease without the other property co-owners because the termination would affect the other co-owners’ rights to royalties under the community oil lease].)

Bush is also an indispensable party because a judgment in Plaintiff’s favor may require Bush to sign off on transferring the vehicle to Defendant pursuant to the Song-Beverly’s refund-or-replace provision.  (See Civ. Code, § 1793.2, subd. (d)(2).)  “Indispensable parties . . . are parties ‘whose interests, rights, or duties will inevitably be affected by any decree which can be rendered in the action.  Typical are the situations where a number of persons have undetermined interests in the same property, or in a particular trust fund, and one of them seeks, in an action, to recover the whole, to fix his share, or to recover a portion claimed by him.  The other persons with similar interests are indispensable parties.  The reason is that a judgment in favor of one claimant for part of the property or fund would necessarily determine the amount or extent which remains available to the others.  Hence, any judgment in the action would inevitably affect their rights.’”  (Serrano v. Priest (1976) 18 Cal.3d 728, 752-53 [quoting Bank of California v. Superior Court (1940) 16 Cal.2d 516, 521].)

If Bush is not joined to this action as a plaintiff, and Plaintiff prevails at trial with an award for rescission of the sales contract or restitution to return the vehicle, Bush will be bound by the court’s judgment and forced to sign title back to Defendant.  If the court does not grant judgment in Plaintiff’s favor, Defendant will suffer prejudice and risks being subject to a subsequent lawsuit by Bush in which an inconsistent judgment may be granted.

Plaintiff contends that if Bush is added to this case, the five-year deadline for a trial will expire and that Plaintiff adequately represents Bush’s interests regarding the vehicle because their interests are aligned.  This case was filed less than a year ago and therefore any claims of untimeliness or fears regarding extended trial dates lack merit.  Moreover, as a co-owner of the 2019 Toyota Highlander, Bush’s and Plaintiff’s interests are aligned interests: rescission of contract, damages, and restitution for a co-owned vehicle.  (See Save Berkeley’s Neighborhoods v. Regents of the Univ. of California (2021) 70 Cal.App.5th 705, 721-23.)  Additionally, resolution of the issues in the complaint would give complete satisfaction to Plaintiff, Bush, and Defendant.  (See People ex rel. Lungren v. Community Redevelopment Agency (1997) 56 Cal.App.4th 868, 876.)  However, as mentioned above, any final judgment could foreclose Bush from exercising his statutory rights or result in multiple inconsistent judgments for Defendant.

Next, Plaintiff contends that it is not feasible for Bush to join this action because Bush will violate California Rules of Professional Conduct, Rule 1.7(a)(2) and Business and Professions Code section 6068(e)(1), undermining his duty of loyalty.  Defendant contends that Bush has already disregarded his ethical duty to avoid a conflict of interest by representing a party in a case in which he will be a primary witness.

“A lawyer shall not act as an advocate in a trial in which the lawyer is likely to be a witness unless: (1) the lawyer’s testimony relates to an uncontested issue or matter; (2) the lawyer’s testimony relates to the nature and value of legal services rendered in the case; or (3) the lawyer has obtained informed written consent[.]”  (Cal. Rules of Prof. Conduct, rule 3.7(a)(1)-(3).)

The court agrees that as a co-owner of the Toyota Highlander at issue, Bush may be a primary witness in this case.  Bush’s representation may potentially violate Rule 3.7(a)(1)-(3) if Defendant calls Bush as a witness in this case.  Pursuant to Rule 3.7, Bush can obtain Plaintiff’s written consent to any conflict.

Finally, Plaintiff’s Anti-SLAPP argument lacks merit because Plaintiff presents no proof that Defendant seeks to retaliate against Bush for filing this case on Plaintiff’s behalf.

Therefore, the court grants Defendant’s motion to compel joinder of Lenny Bush as a co-plaintiff in this case.

CONCLUSION

Defendant’s motion to join Lenny Bush as a necessary party is granted.

Plaintiff is ordered to file an amended complaint adding Lenny Bush as a plaintiff within thirty (30) days of this order.  (Abbot Kinney Co. v. City of Los Angeles (1959) 53 Cal.2d 52, 59.)