Judge: Michael Shultz, Case: 22CMCV00327, Date: 2024-03-07 Tentative Ruling
INSTRUCTIONS: If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must:
1. Contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling.
2. No later than 4:00 p.m. on the court day before the hearing, call the Courtroom (310-761-4302) advising that all parties will submit on the tentative ruling and waive hearing; and
3. Serve notice of the Court's ruling on all parties entitled to receive service.
If this procedure is followed, when the case is called the Court will enter its ruling on the motion in accordance with its tentative ruling. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing. If there is neither a telephone call nor an appearance, then the matter may either be taken off calendar or ruled on.
TENTATIVE RULINGS -- http://www.lacourt.org/tentativeRulingNet/u
Case Number: 22CMCV00327 Hearing Date: March 7, 2024 Dept: A
22CMCV00327
Mildred Arevalo Herrera v. Luis Enrique Martinez Orellana
[TENTATIVE] ORDER TAKING OFF CALENDAR PLAINTIFF’S
MOTION FOR ORDER COMPELLING JOINDER OF PERSON WITH INTEREST IN SUBJECT PROPERTY
I.
BACKGROUND
The
complaint alleges that the parties have been domestic partners since April 2003
until June 10, 2021. The parties acquired real property together, however, only
Defendant’s name was on title. The parties had an oral agreement to share all
property acquired equally. Plaintiff alleges claims for breach of express
contract, breach of implied-in-fact contract, declaratory relief, partition,
and promissory estoppel.
Plaintiff
seeks an order to join Jose Miguel Calvillo and Olga L. Mercado as defendants
in this action because Defendant sold
the property to the interested parties without permission of the court and for
less than fair market value to avoid this action.
The
Court’s file does not reflect that an opposition has been filed.
II.
DISCUSSION
While
Plaintiff served the proposed new defendants with the motion, the proof of
service filed on February 26, 2024, does not indicate that Defendant Orellana
was served with the motion.
The
motion is also defective as Plaintiff misapplies the joinder statutes. (Code
Civ. Proc., § 389, et seq.) An objection to the complaint based on a
failure to join necessary parties is a defect raised by the defendant by
demurrer. (Code
Civ. Proc., § 430.10 subd. (d).) If Plaintiff wishes to add new defendants
and assert new theories of relief, Plaintiff’s remedy is a motion for leave to
file an amended complaint pursuant to Code Civil Procedure, section 473 as Defendant
answered the complaint on October 6, 2022. Otherwise, Plaintiff could have
amended the complaint as a matter of right, before an answer is filed. (Code
Civ. Proc., § 472).
III.
CONCLUSION
Based on these procedural defects, the motion is TAKEN OFF
CALENDAR.