Judge: Gary Y. Tanaka, Case: 21STCV34889, Date: 2022-09-21 Tentative Ruling

Case Number: 21STCV34889    Hearing Date: September 21, 2022    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

 

 

Honorable Gary Y. Tanaka                                                                                                Thursday, September 22, 2022

Department B                                                                                                                                                 Calendar No. 6

 


 

PROCEEDINGS

 

Conjunction Junction, LLC v. Ashley Erin Ellison, et al.

21STCV34889

  1. Gretzel Hunt’s Motion for Leave to File Complaint in Intervention   

     

    TENTATIVE RULING


                Gretzel Hunt’s Motion for Leave to File Complaint in Intervention is denied.

     

                Background

     

                Plaintiff filed the Complaint on September 22, 2021.  Plaintiff alleges the following facts.  The action involves a dispute as to two parcels of property.  The first parcel is owned by Plaintiff, with no street address - APN 7572-016-024.  The second parcel is owned by Defendant with a street address of 1 Pomegranate Road, Rancho Palos Verdes, CA 90275 (“Porter Parcel”).  The house, driveway, and outlying buildings on the Porter Parcel are encroaching on Plaintiff’s parcel. Defendant has failed to remedy these conditions. Defendant filed a Cross-Complaint which essentially contends that Defendant has a prescriptive easement to the disputed property.  On July 5, 2022, Defendant filed a Second Amended Cross-Complaint.

     

                Motion for Leave to File Complaint in Intervention

     

                Code Civ. Proc., § 387(b) states: “An intervention takes place when a nonparty, deemed an intervenor, becomes a party to an action or proceeding between other persons by doing any of the following: (1) Joining a plaintiff in claiming what is sought by the complaint. (2) Uniting with a defendant in resisting the claims of a plaintiff. (3) Demanding anything adverse to both a plaintiff and a defendant.”

     

                Code Civ. Proc., § 387(d)(1) states: “The court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied: (A) A provision of law confers an unconditional right to intervene.  (B) The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person's ability to protect that interest, unless that person’s interest is adequately represented by one or more of the existing parties.”

     

                Code of Civ. Proc., 387(d)(2) states: “The court may, upon timely application, permit a nonparty to intervene in the action or proceeding if the person has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both.”

     

                “When leave [to intervene] is granted, the intervenor becomes a party with the same rights and remedies of the original parties.”  4 Witkin, Cal. Proc., Sec. 226 (5th Ed. 2012) (citing People v. Perris Irr. Dist. (1901) 132 Cal. 289, 290).  “A party seeking intervention must ordinarily show an interest under the existing pleadings and issues, and will not be allowed to come in on a claim that enlarges the issues and changes the nature of the main proceedings.  4 Witkin, Cal. Proc., Sec. 227 (5th Ed. 2012) (citing Muller v. Robinson (1959) 174 Cal.App.2d 511, 515).

     

                Proposed intervenor Hunt filed the motion on May 4, 2022.  Proposed intervenor is the buyer under a purchase and sale agreement dated February 7, 2020 of the Porter Parcel. (Decl., Gretzel Hunt, ¶ 2, Ex. A.)  In March 2021, proposed intervenor opened escrow on the Porter Parcel.  Proposed intervenor argues that the disposition of the action may impair or imped her ability to protect her interest.  Thus, proposed intervenor contends that she has a direct interest in the litigation and intervention will not enlarge the issues or change the nature of the proceedings.

     

                First, proposed intervenor fails to establish that the motion is timely. The initial Complaint was filed on September 22, 2021.  The instant motion was filed on May 4, 2022, more than seven months after the filing of the Complaint.  Also, pursuant to the proposed intervenor’s declaration, she had signed the purchase agreement well before the filing of the Complaint.  Proposed intervenor provides no explanation for the delay in filing this motion.  In fact, proposed intervenor’s motion is completely silent as to this essential element.

     

                In addition, while proposed intervenor has set forth facts showing that she has an interest in the litigation, proposed intervenor fails to establish that her interest is not adequately represented by one or more existing parties – namely the named Defendant. CCP § 387(d)(1)(B).  The proposed Complaint in Intervention essentially crafts the same position proposed by Defendant – that Defendant’s claims in the Cross-Complaint be deemed valid and that the claims of Plaintiff must fail.  Thus, proposed intervenor’s interest is adequately protected and represented by Defendant’s Second Amended Cross-Complaint and Defendant’s denials of Plaintiff’s Complaint.

     

                Thus, the Motion for Leave to File Complaint in Intervention is denied.

     

                Plaintiff is ordered to give notice of this ruling.