Judge: Nathan R. Scott, Case: Opperud vs. Clark, Date: 2022-10-07 Tentative Ruling

Case Management Conference

The CMC is continued to 12/1/22 at 2 pm.

Demurrer

Defendants Twila Clark and Lawrence Clark’s demurrer is overruled.

Defendants shall file and serve their answer, if at all, within 10 days.

Uncertainty.  The complaint is not “so incomprehensible that a defendant cannot reasonably respond.”  (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)  Any “ambiguities can be clarified under modern discovery procedures.”  (Ibid.)

Partition.  The complaint states facts sufficient to constitute the cause of action for partition. (See Code Civ. Proc., § 872.230 [elements]; see also Compl. ¶¶ 1-3, 8-10, 12-14.)

The complaint adequately identifies defendants’ interests in the property.  It alleges the defendants, together with the other named defendants, collectively own a 44% interest in the property. (Compl. ¶¶ 2, 3, 8-10.)

The apparent typographical error in paragraph 11 omitting the word “other” or “unknown” before “persons” does not render the 44% allegation ambiguous. (See Code Civ. Proc., § 452 [complaint is liberally construed]; see also Compl. ¶¶ 6, 11.)

Defendants have not shown the complaint must separately allege each party’s exact percentage interest.   Code of Civil Procedure section 872.520 expressly allows the complaint to allege an “unknown” interest.

The court rejects the argument, raised for the first time on reply, that this case belongs in probate court.  (See Browne v. County of Tehama (2013) 213 Cal.App.4th 704, 720, fn. 10 [passing on point raised on reply]; see also Reply at pp. 3-4.)  In any event, a separate civil action may be brought to partition a property co-owned by an estate.  (See Prob. Code, § 9823; see also Compl. ¶¶ 8-10.) 

The court declines defendant’s footnote request to take judicial notice of an entire case file.  (See Cal. Rules of Court, rules 3.1113(l), 3.1306(c).)

Defendants shall give notice.