Judge: Ralph C. Hofer, Case: 22GDCV00430, Date: 2025-02-21 Tentative Ruling

Case Number: 22GDCV00430    Hearing Date: February 21, 2025    Dept: D

TENTATIVE RULING

Calendar:         1                                                         

Date:               2/21/2025                                           

Case No:         22 GDCV00430                                  Trial Date:       None Set

Case Name:     Fagiani v. Fagiani, et al.

MOTION TO LIFT STAY AND ALLOW FILING OF FIRST AMENDED COMPLAINT

Moving Party:             Plaintiff Teresa Fagiani    

Responding Party:      Defendants Frederick Fagiani and Valerie Fagiani  (No Opposition)  

RELIEF REQUESTED:

            Lift stay of this matter and allow plaintiff to file a First Amended Complaint   

RELEVANT FACTS:

Plaintiff Teresa Fagiani alleges she is the spouse of Gabriel Fagiani, who is the co-owner of a single family dwelling in Glendale, to which title was taken in July of 1993 by Gabriel Fagiani in his own name, with plaintiff’s father-in-law and mother-in-law, defendants Frederick Fagiani and Valeria Fagiani, as joint tenants.

Plaintiff alleges that the property was acquired by Gabriel as his family home with plaintiff, but that because Gabriel’s credit was poor, Gabriel took out a mortgage in both his name and his parents’ names, and their names were also added to title.

Plaintiff alleges that she and Gabriel have paid all expenses with respect to the property, living there and raising their children in the home. Plaintiff alleges that some unknown portion of the down payment was made by defendants, but that defendants have never paid any funds toward the mortgage, insurance, taxes or other expenses of maintaining the property. 

Gabriel died unexpectedly in April of 2022.  Plaintiff alleges that the property was purchased at a time after Gabriel was married to plaintiff, and so a presumption has arisen that the property was community property, and at no time was there a written declaration of Gabriel or plaintiff or consent stating that the subject property had been transmuted from community property to decedent Gabriels sole separate property.

            Plaintiff seek to quiet title to her 50% community property share of Gabriel’s interest in the property.

            The complaint also alleges that on or about June 19, 2022, two months after plaintiff’s husband of nearly 30 years passed, plaintiff received an improper Thirty Day Notice to Vacate brought by defendant Valerie Fagiani, claiming that plaintiff is merely a tenant at will and is subject to be evicted from the property which has been her home.  The complaint alleges that the attempted eviction is wrongful, and that this conduct violated defendant’s fiduciary duties to plaintiff.

            The file shows that on July 28, 2022, plaintiff filed a Notice of Related Case, indicating that this case is related to a limited case pending in Pasadena, involving the same parties and based on the same or similar claims.  The case is No. 22PDUD01613, which was filed on July 21, 2022, three days after this case was filed. 

The file in the Pasadena case shows that the other matter is an unlawful detainer complaint brought by Frederick Fagiani and Valeria Fagiani as against Teresa Fagiani as defendant.  

            On October 4, 2022, this court conducted an OSC Re: Related Case Determination, and found that the cases are related, assigned the unlawful detainer case to this Department for all purposes, designated this case as the lead case, and ordered the unlawful detainer case stayed pending the disposition of this case.

            In March of 2024, the parties submitted a Joint Stipulation and Order to Continue Trial Date and FSC Date, indicating the parties had identified several issues that needed to be resolved prior to trial in the matter, including appointment of a successor in interest for Frederick Fabiani, as he was deceased, and the possible recusal of counsel for defendants.  On March 26, 2024 the court signed and filed the Joint Stipulation as the order of the court, setting a trial date for July 8, 2024, which date was then further continued. 

            At a hearing on September 16, 2024, the court ordered this matter stayed pending the resolution of a Ventura Probate Conservatorship Case, evidently involving the appointment of a conservator for defendant Valerie Fagiani.  The court ordered the substitutions of attorney filed on April 25, 2024 and May 2, 2024 stricken, as signed by Valerie Fagiani, when her competency was pending determination in the Ventura Case.   The court issued several orders to show cause, including OSCs regarding a motion pursuant to CCP section 377 as to deceased Frederick Fagiani, regarding the Ventura Probate Case, and regarding Teresa Fagiani as heir.

            On January 14, 2024, a Substitution of Attorney was filed stating Valerie Fagiani was substituting new legal representative Guy R. Bayley for her former legal representative, Steve Wolvek.  The consent was signed by Anita M. Sharp, as Conservator of Valerie M. Fagiani.

On January 23, 2024, this matter was called for hearing.  Defense counsel informed the court that the Probate Court in Ventura County had appointed a conservator for Valerie Fagiani.  The court ordered defense counsel to file with the court the appropriate documents regarding the conservatorship of Valerie Fagiani.  The court also ordered, “Defense counsel is to substitute in as counsel of record for Frederick Fagiani.  Further, defense counsel is to file the appropriate Motion Pursuant to CCP 377 as to deceased defendant Frederick Fagiani.”  The OSC re the CCP 377 Motion was continued to February 21, 2024, with the court setting a status conference re substitution of counsel for Frederick Fagiani by Guy Bailey this same date.

            There has so far been no substitution of attorney filed with respect to defendant Frederick Fagiani.  Defense counsel has not yet filed with the court any documents concerning the conservatorship of Valerie Fagiani, and has not filed a Motion Pursuant to CCP section 377 as to deceased defendant Frederick Fagiani.  The court file shows that Frederick Fagiani is currently being represented by the Law Offices of Steven A. Wolvek. 

ANALYSIS:  

            Plaintiff Teresa Fagiani brings this motion to lift the stay in this matter and for leave to file a First Amended Complaint.

            Plaintiff argues that there is no longer a need for a stay of this case because the Probate Court in the Ventura case has granted the petition of Anita Sharp (sometimes referred to as Anita “Sharpe”) to act as conservator for Valerie Fagiani, and issued its letters appointing Sharp as conservator of the estate, so that Sharp can now act on behalf of defendant Valerie Fagiani.    

As noted above, the stay in this matter has also been necessary to resolve the issue of the current status of deceased defendant Frederick Fagiani.   This issue has not been resolved and is not addressed in the moving papers.  As noted above, in March of 2024, all parties stipulated that issues to be addressed before this matter could proceed to trial included the appointment of a successor in interest for Frederick Fabiani, and the contemplated recusal of then counsel for that party.  New counsel for defendant Valerie Fagiani has not substituted in as counsel for defendant Frederick Fagiani, as was evidently counsel’s intention, and there has been no motion filed pursuant to CCP section 377.  Counsel of record for defendant Frederick Fagiani remains the Law Offices of Steven A. Wolvek.  This situation remains particularly problematic for the motion brought by plaintiff, as the proof of service shows service of the moving papers only on new counsel for Valerie Fagiani, with no service at all on counsel for defendant Frederick Fagiani.  This concern raises issues of due process.   

The court under the circumstances is not inclined to lift the stay of this matter until further progress has been made toward resolving all outstanding issues.   The court will hear argument concerning imposing a reasonable timeline for addressing these issues.  

            The court also has some concerns that the motion by plaintiff purports to submit documents concerning the Conservatorship of Valerie Fagiani, including Letters of Conservatorship, and a Petition for Appointment of Probate Conservator.   [See Exs. A, C].  These documents are not offered with any explanatory declaration or authentication, and cannot in good faith be considered by the court as submitted.  

            Moreover, to the extent plaintiff seeks by motion to file an amended complaint, the court considers such relief subject to the current stay of the matter.   In any case, again, there has been no notice provided to defendant Frederick Fagiani.  

The court is also concerned that the motion to file an amended pleading is improperly brought pursuant to CCP § 473.  However, since the motion seeks to file a pleading which alleges facts arising since the filing of the original complaint, the motion is not one to amend the pleading, but to supplement the pleading.

Relief should instead by sought under the standards applicable to CCP § 464, under which:

“(a)  The plaintiff and defendant, respectively, may be allowed, on motion, to make a supplemental complaint or answer, alleging facts material to the case occurring after the former complaint or answer.”

Again, such relief must be sought “on motion,” and must be served on all parties.

If, after the stay is lifted, the parties are unable to stipulate to the filing of a supplemental complaint, any further motion must seek relief under the appropriate legal authority, and the court further orders that a red-lined copy of the proposed pleading be filed and served showing each proposed change. 

RULING:

Motion to Lift the Stay and Allow Plaintiff to File First Amended Complaint is DENIED.

The motion has not been served on defendant Frederick Fagiani.

The stay will remain in place pending the submission of appropriate documentation demonstrating the appointment of a conservator for defendant Valerie Fagiani who is assuming responsibility for defending this lawsuit, as well as the formal substitution of counsel for defendant Frederick Fagiani, and the resolution of the matter of the proper party to succeed to the interests of deceased defendant Frederick Fagiani.   

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE

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