Judge: Matthew C. Braner, Case: 37-2022-00012715-CU-BC-CTL, Date: 2023-12-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 30, 2023

12/01/2023  09:00:00 AM  C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited  Breach of Contract/Warranty Demurrer / Motion to Strike 37-2022-00012715-CU-BC-CTL MAGALLON VS RAMOS [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendants Norma Ramos and Alan Sam's demurrer to the second amended complaint is SUSTAINED.

Defendants' motion to strike is GRANTED.

As of November 30, 2023, Plaintiff Arturo Magallon has not filed any opposition to Defendants' motions.

Pursuant to this court's local rules, this failure to respond will be regarded as a concession that Defendants' motions have merit. (See San Diego Superior Court Local Rule 2.1.19, subd. (B).) Demurrer A demurrer shall be sustained where '[t]here is a defect or misjoinder of parties.' (Code Civ. Proc., § 430.10(d).) In a partition action, '[t]he plaintiff shall join as defendants in the action all persons having or claiming interests of record or actually known to the plaintiff or reasonably apparent from an inspection of the property, in the estate as to which partition is sought.' (Code Civ. Proc., § 872.510.) Here, Defendants demur to the single cause of action set forth in the second amended complaint, for partition, on the basis that Plaintiff has failed to join the lender holding a deed of trust encumbering the property to be partitioned. (SAC, ¶ 12.) Defendants argue that this lender has an interest in the property and that Plaintiff actually knows or should know from an inspection of public records the identity of this lender, but has failed to join the lender as a party. (Code Civ. Proc., § 872.510.) The court agrees. The lender plainly has an interest in the property, and Plaintiff participated in the acquisition of the loan so he either knows or should know the identity of this lender. (SAC, ¶ 21.) Accordingly, Defendants' demurrer is sustained. Because this technical deficiency can most likely be cured via amendment, Plaintiff will be given leave to amend. However, the court notes it will not be inclined to give Plaintiff a fourth opportunity to amend his complaint.

Motion to Strike A court may strike 'any irrelevant, false, or improper matter inserted in any pleading.' (Code Civ. Proc., § 436, subd. (a).) An 'irrelevant matter' is an 'immaterial allegation,' (Code Civ. Proc., § 431.10, subd.

(c)), which is '[a]n allegation that is not essential to the statement of a claim or defense,' or '[a]n allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense.' (Code Civ. Proc., § 431.10, subd. (b).) Conversely, a 'material allegation' is one that is 'essential to the claim or defense and which could not be stricken from the pleading without leaving it insufficient as to that Calendar No.: Event ID:  TENTATIVE RULINGS

3018961  11 CASE NUMBER: CASE TITLE:  MAGALLON VS RAMOS [IMAGED]  37-2022-00012715-CU-BC-CTL claim or defense.' (Code Civ. Proc., § 431.10, subd. (a).) 'The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.' (Code Civ. Proc., § 437, subd. (a).) Here, Defendants moves to strike paragraphs 23, 24, 26, 27, 28, and 36, the prayer for equitable relief, and prayer for general and special damages, which they contend are irrelevant to Plaintiff's single cause of action for partition in the second amended complaint. The court agrees these paragraphs are irrelevant and immaterial. Paragraphs 23, 24, 26, 27, and 28 are irrelevant to a partition cause of action, which requires only the elements set forth in Code of Civil Procedure section 872.230 to be properly pleaded. The relief requested in paragraph 36 is essentially a request for an unpled unlawful detainer action, and is otherwise irrelevant and unavailable in an action solely for partition. Likewise, general and special damages are unavailable in a partition action.

Accordingly, Defendants' motion to strike is granted in its entirety, without leave to amend with respect to the stricken material.

Plaintiff has 30 days from entry of this order to file and serve a third amended complaint that removes the stricken material and properly joins the lender as a necessary party.

The minute order is the order of the court.

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