Judge Michael E. Whitaker, Case Number: 19SMCV01534, Date: 2023-11-01 Tentative Ruling

Judge: Michael E. Whitaker, Case: 19SMCV01534, Date: 2023-11-01 Tentative Ruling

Proposed Intervenor Paul Haines Living Trust (Intervenor) seeks leave to intervene in this action per Code of Civil Procedure section 387 and to continue the trial. Plaintiff Matthias Jan Emcke (“Plaintiff”) opposes the motion and Intervenor replies.

Intervenor objects to various portions of the Carvalho Declaration filed in support of Plaintiff’s Opposition. The Court rules on the objections as follows:

Per the Code of Civil Procedure, “[a]n 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[; or] (3) Demanding anything adverse to both a plaintiff and a defendant.” (Code Civ. Proc., § 387, subd. (b).) “A nonparty shall petition the court for leave to intervene by noticed motion or ex parte application. The petition shall include a copy of the proposed complaint in intervention or answer in intervention and set forth the grounds upon which intervention rests.” (Code Civ. Proc., § 387, subd. (c).)

“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[; or] (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. [Also] 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. (Code Civ. Proc., § 387, subd. (d)(1)-(2).)

Plaintiff and Defendant 6097 West Winding Way, LLC (“Defendant”) owned adjoining parcels of land. (First Amended Complaint [“FAC”] ¶ 7.) Plaintiff brought suit for declaratory relief, quiet title, trespass, declaratory relief, and quiet title, pertaining to an easement that allegedly exists over Defendant’s property and in favor of Plaintiff’s. (FAC ¶ 9.)

In September 2023, Intervenor purchased Defendant’s real property at issue in this lawsuit, and is now the current owner of the property. (Boren Decl. ¶ 3.)

Intervenor contends that intervention is mandatory because Intervenor is now the owner of the property at issue that was previously owned by Defendant, and therefore Intervenor “has a direct and substantial interest” in the property that is the subject of this litigation. (Motion at p. 2.) In the alternative, Intervenor requests the Court grant permissive intervention.

Plaintiff opposes, arguing (1) Intervenor Trust is not a legal entity capable of intervening as a party to litigation; (2) Intervenor is not a necessary or indispensable party to the litigation because the judgment will be binding on Intervenor by way of the lis pendens and Intervenor’s interests are adequately represented by Defendant, who remains a Defendant in the action; and (3) the Court should not permit Intervenor to Intervene.

The Court agrees that Intervenor Trust is not a proper legal entity capable of intervening as a defendant to the litigation. (See, e.g. Jo Redland Trust, U.A.D. 4-6-05 v. CIT Bank, N.A. (2023) 92 Cal.App.5th 142, 156 [“because a trust is not a legal entity, it cannot sue or be sued, but rather legal proceedings are properly directed at the trustee[.]”])

However, Intervenor represents in Reply that the Paul Haines, as Trustee of the Paul Haines Living Trust, will be the party to intervene and file the proposed answer, and requests that the Court construe the Motion as being made on behalf of Paul Haines as Trustee of the Paul Haines Living Trust, and favor the substance of the motion over the form.

Moreover, in the Opposition brief, Plaintiff has expressed concerns about further delays to the proceedings.

Thus, instead of requiring Intervenor to re-file the motion, which would cause further delay, the Court construes the motion as being brought on behalf of Paul Haines, as Trustee of the Paul Haines Living Trust and considers the merits of the motion.

While the Court agrees with Plaintiff that any resolution regarding the property rights in this lawsuit will be binding on Intervenor, the Court also agrees with Intervenor, that this fact does not demonstrate that Intervenor’s rights are adequately represented and protected by an existing party. Essentially, if Intervenor were not a part of the lawsuit, the outcome would be binding on Intervenor, but Intervenor would have had no legal say in affecting that outcome.

And while Defendant remains in the litigation for now, the Court agrees with Intervenor, that because Defendant no longer has any interest in the subject property, it is not adequately positioned to represent and protect Intervenor’s interests, as the new owner of the subject property.

Thus, the Court finds Intervenor has met its burden to establish a factual and legal basis to intervene in the action per Code of Civil Procedure Section 387. Intervenor has adequately shown “that the disposition of the action may impair or impede [Intervenor’s] ability to protect” its interests.[1]

Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include:

(3) The unavailability of trial counsel because of death, illness, or other excusable circumstances;

(4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice;

(A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or

(B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party’s involvement in the case;

(6) A party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or

(7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.

(2) Whether there was any previous continuance, extension of time, or delay of trial due to any party;

(4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance;

(5) The prejudice that parties or witnesses will suffer as a result of the continuance;

(6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay;

(7) The court's calendar and the impact of granting a continuance on other pending trials;

(10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and

(11) Any other fact or circumstance relevant to the fair determination of the motion or application.

Intervenor requests a 90-day continuance of the trial, final status conference, and related deadlines. Trial is currently scheduled for December 4, 2023, but Intervenor’s trial counsel currently has a two-week trial scheduled to begin in another matter on November 27, 2023.

Plaintiff opposes the requested continuance, arguing that it will be unduly prejudiced by yet another continuance.

Trial was originally set for July 5, 2023, when Mr. Haines began negotiating with both Plaintiff and Defendant to purchase their respective properties at issue in this lawsuit. (Carvalho Decl. ¶ 5.) On the Court’s motion, the trial was continued to August 18, 2023 to enable the parties to continue negotiations with Mr. Haines. (Carvalho Decl. ¶ 6.)

Three days before the July 13, 2023 final status conference, Mr. Haines and Defendant’s counsel asked Plaintiff to stipulate to another trial continuance. (Carvalho Decl. ¶ 9.) Plaintiff indicated he would not do so unless Mr. Haines assured him he would purchase both properties, which Mr. Haines did. (Carvalho Decl. p. 11:9-18[2].) The trial was continued to September 12. (Carvalho Decl. p. 11:19-20.) At the August 18, 2023 final status conference, the Court again continued the trial, to December 4, 2023. (Carvalho Decl. ¶ 12.)

On September 18, 2023, Mr. Haines informed Plaintiff that he had closed on Defendant’s property, but decided not to purchase Plaintiff’s property until after the case is over, including appeals. (Carvalho Decl. ¶ 15.)

Plaintiff contends he will be prejudiced by an additional continuance, because he holds development entitlements to make improvements on the property that were issued in 2008 and are set to expire on June 2, 2024. (Schmitz Decl. ¶¶ 3, 5.) If the action is not resolved prior to the expiration date, Plaintiff will not be able to obtain building permits or begin the planned construction developments on the property. (Schmitz Decl. ¶ 5.) Plaintiff could pay a fee to apply for an extension, but approval is uncertain. (Schmitz Decl. ¶ 6.) If the entitlements expire, obtaining new ones take two to four years and cost $400,000-500,000. (Schmitz Decl. ¶ 7.)

The Court finds that Plaintiff’s purported prejudice is speculative, uncertain and does not outweigh Intervenor’s demonstrated need for a short continuance that would result in a trial roughly three months before Plaintiff’s development entitlements are currently set to expire.

Accordingly, the Court grants Intervenor’s motion in its entirety. The Court grants Paul Haines, as Trustee of the Paul Haines Living Trust leave to intervene pursuant to per Code of Civil Procedure section 387, and orders Paul Haines, as Trustee of the Paul Haines Living Trust, to file and serve his Answer (In Intervention) as required under Code of Civil Procedure section 387, subdivision (e) on or before November 22, 2023.

The Court further grants Intervenor’s request for a 90-day trial continuance and orders as follows:

· The trial date, currently set for December 4, 2023 is continued to April 29, 2024 at 10:00 A.M. in Department 207.

· The Final Status Conference, currently set for November 8, 2023 is continued to April 19, 2024 at 9:30 A.M. in Department 207.

· All discovery and pre-trial motion cut-off dates shall be based upon the new trial date of April 29, 2024.

· The Court issues a Trial Preparation Order and orders all parties to comply with it.

· Per the Discovery Act, the parties shall meet and confer forthwith to schedule and complete all non-expert discovery and to prepare for the completion of expert discovery to obviate the need for a further continuance of the trial.

Intervenor shall provide notice of the Court’s orders and file a proof of service of such.

[1] Because the Court finds Intervenor satisfies the elements for mandatory intervention, it does not consider the arguments regarding permissive intervention.

[2] The Carvalho Declaration contains three paragraph 10s, and two paragraph 11s, so the Court references these facts by page and line number.

DEPARTMENT	207
HEARING DATE	November 1, 2023
CASE NUMBER	19SMCV01534
MOTION	Motion for Leave to Intervene and to Continue Trial
MOVING PARTY	Proposed Intervenor Paul Haines Living Trust
OPPOSING PARTY	Plaintiff Matthias Jan Emcke