Judge: Helen Zukin, Case: 22SMCV00649, Date: 2023-01-06 Tentative Ruling

Case Number: 22SMCV00649    Hearing Date: January 6, 2023    Dept: 207

Background

This is an action for the partition of real estate located at 10337 Wilshire Boulevard, Los Angeles, California 90024. Plaintiff Chateau de Monte Cristo, LLC, (“Plaintiff”) purports to own a 99.98% interest in the subject property, with the remaining .02% interest held by Defendant Justus Senftner. Plaintiff’s operative Complaint, filed May 6, 2022, asserts a single cause of action for partition. Defendant Martinez Law Group P.C. (“Defendant”) was named as a Defendant in this action as it claims an interest in the property by virtue of an attorney’s fee lien.

Defendant previously demurred to Plaintiff’s Complaint on numerous grounds, including the pendency of other litigation between the parties and an alleged failure to join an indispensable party. On October 28, 2022, the Court entered an order overruling Defendant’s demurrer in its entirety. Defendant now brings this motion for reconsideration of the Court’s October 28 order overruling its demurrer, arguing newly discovered evidence compels a different result. Plaintiff opposes Defendant’s motion.

Legal Standard

Code Civ. Proc. “[s]ection 1008 governs motions for reconsideration, by parties or the court itself. It is the exclusive means for modifying, amending or revoking an order. (Morite of California v. Superior Court (1993) 19 Cal.App.4th 485, 490.) A motion pursuant to Code Civ. Proc. § 1008 must be made "within 10 days after service upon the party of written notice of entry of the order.” (C.C.P. § 1008(a).) The moving party must present new facts, circumstances or law in order to grant a motion for reconsideration. (See C.C.P. § 1008(a); see also¿Mink v. Superior Court¿(1992) 2 Cal.App.4th 1338, 1342.)

Analysis

Defendant’s demurrer argued there is other litigation pending between the parties concerning the ownership of the subject property, identifying five lawsuits (SC126806, SC128027, 17SMRO00308, 19STCV46503, and 2:21-cv-09747) and eight appeals (B295388, B298224, B298532, B305935, B309136, B314319, B315237 and B321560) currently pending. In rejecting this argument, the Court noted Defendant had failed to show any of these actions concerned the same subject matter or cause of action as the instant lawsuit initiated by Plaintiff. The Court also found Defendant had not shown Plaintiff is a party in any of those actions:

The Court also notes Plaintiff is not a party to any of the other actions cited by Defendant. Defendant argues Plaintiff should be considered an alter ego of Curtis Olson, who is a party to the other actions. However, as set forth above, in ruling on a demurrer the Court is limited to defects which are apparent on face of the pleading or subject to judicial notice. Defendant’s claim that Plaintiff should be considered an alter ego of Curtis Olson is thus beyond the Court’s purview in ruling on the demurrer.

(Oct. 28 Order at 4.)

Defendant’s demurrer also asserted Plaintiff had failed to name all individuals, persons, or entities who claim an interest in the property under Code Civ. Proc. § 389. The Court rejected this argument as well, finding:

Defendant does not identify any person or entity with an interest in the action who must be joined pursuant to section 389. Plaintiff states it has complied with Code Civ. Proc. § 872.230(c), which provides that a complaint must set forth “All interests of record or actually known to the plaintiff that persons other than the plaintiff have or claim in the property and that the plaintiff reasonably believes will be materially affected by the action, whether the names of such persons are known or unknown to the plaintiff.” Plaintiff states it is unaware of any individuals or entities who claim ownership of or an interest in the subject property beyond the parties named in this case.

(Id. at 5.)

Defendant now asks the Court to reconsider its ruling on the demurrer, arguing Plaintiff had knowledge at the time it filed the instant Complaint that third parties ATW Trust and ATW Church (collectively “ATW”) have a claim to ownership in the property and thus should have been named as a defendant in this action. In support of this claim, Defendant points to various documents and actions filed and taken by Curtis Olson indicating ATW had a potential ownership interest in the subject property. Defendant attempts to lump Plaintiff and Olson together by referring to Olson as “Plaintiff Cristo LLC/Olson” in its motion and thus attributing filings made by Olson to Plaintiff. However, as set forth in the Court’s October 28 motion, in ruling on a demurrer a Court is limited in its consideration to facts asserted in a complaint and those which the Court may judicially notice. Defendant’s assertions that Olson is Plaintiff’s sole managing member and alter ego are not contained in Plaintiff’s Complaint and Defendant has made no showing they are subject to judicial notice and accordingly the Court may not consider Plaintiff to be Olson’s alter ego in ruling on Defendant’s demurrer.

Defendant may ultimately be correct that Olson’s knowledge of ATW Trust can be imputed to Plaintiff, however Defendant has not provided the Court with any basis to take judicial notice of this fact, and no such allegation or assertion appears in Plaintiff’s Complaint. Accordingly, the new evidence put forth by Defendant’s motion for reconsideration does not lead the Court to reach a different result in ruling on Defendant’s demurrer as it only illustrates the extent of Olson’s knowledge, not Plaintiff’s. If Defendant believes ATW is an indispensable or necessary party which should be joined in this action, its proper remedy is to bring a motion to join ATW as a defendant under Code Civ. Proc. § 389 or bring a motion to dismiss for Plaintiff’s failure to do so. The Court passes no judgment as to whether ATW should be brought into this case, rather the Court simply finds that any such defect in the joinder of ATW does not appear on the face of the Complaint and thus is beyond the scope of Defendant’s demurrer. Accordingly, Defendant’s motion for reconsideration of the Court’s October 28, 2022, Order on Defendant’s demurrer is DENIED.

Defendant alternatively moves for relief from the October 28, 2022, Order on the grounds of attorney mistake or neglect under Code Civ. Proc. § 473, claiming it was counsel’s error which led to the newly discovered evidence not being submitted with Defendant’s original demurrer. While section 473(b) provides for mandatory relief from a default judgment entered as a result of an attorney’s mistake or neglect, it otherwise “cannot be used to remedy attorney mistakes.” (Wiz Technology, Inc. v. Coopers & Lybrand LLP (2003) 106 Cal.App.4th 1, 17 [“Any failure by Wiz's counsel to understand or appreciate the significance of the evidence does not justify relief under Code of Civil Procedure section 473”]; “There is nothing in section 473 to suggest it 'was intended to be a catch-all remedy for every case of poor judgment on the part of counsel which results in dismissal.’” (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 611-612 [internal citation omitted].) Moreover, even if the purported mistake of Defendant’s counsel qualified for relief under section 473, such relief here would not be justified as the newly offered evidence would not change the Court’s analysis of Defendant’s demurrer.

Conclusion

Defendant’s motion for reconsideration is DENIED.