Judge: Ronald F. Frank, Case: 22TRCV00362, Date: 2023-02-02 Tentative Ruling

Case Number: 22TRCV00362    Hearing Date: February 2, 2023    Dept: 8

Tentative Ruling

 

HEARING DATE:                 February 2, 2023 

 

CASE NUMBER:                  22TRCV00362

 

CASE NAME:                        Cathrine M. Herrera, as successor trustee to amended and restatement of the Jan Kumar Agarwala Separate Property Trust dated September 12, 2010 v. Darlene Agarwala, et. al.                     . 

 

MOVING PARTY:                Defendant, Darlene Agarwala, et al

 

RESPONDING PARTY:       Plaintiff, Paul Herrera, as 2nd Successor Trustee to the Amended and Restatement of the Jan Kumar Agarwala Separate Property Trust dated September 13, 2010

 

TRIAL DATE:                        None set

 

MOTION:                               (1) Demurrer to First Amended Complaint

                                                (2)  Motion to Strike Meet and Confer Declaration of Ms. Amboss

                                                           

Tentative Rulings:                  (1) Defendants’ Demurrer is OVERRULED.

                                                (2)  Motion to Strike the Amboss Declaration is DENIED, but is not considered by the Court for the 2/2/23 hearing as it clearly is in reference to a discovery dispute, not the Demurrer

                                                 

 

I. BACKGROUND 

 

A. Factual 

 

On May 10, 2022, Plaintiff Catherine M. Herrera, as successor trustee to Amend and Restatement of the Jan Kumar Agarwala Separate Property Trust dated September 13, 2021 (“Plaintiff”) filed a complaint against Darlene Agarwala, an individual, Pronita Ann Agarwala, an individual, Sabina Agarwala Miro, an individual, Stephen Miro, an individual, Christopher Miro, an individual, Gregory Mollner, an individual, Pronita Ann Agarwala and Sabina Agarwala Miro as trustees of the 2010 Darlene Agarwala Revocable Trust Dated 26, 2010, Prontina Ann Agarwala and Gregory Mollner as trustees of 2010 Agarwala-Mollner Revocable Trust Mollner, Stephen Miro and Sabine Miro as trustees of the Miro Family Trust Dated 8/7/21, all Persons claiming an interest in the real properties described in the complaint adverse to Plaintiff’s title or any cloud on Plaintiff’s title thereto, and Does 1 through 100.

 

Plaintiff alleges that on November 11, 2022, Catherine M. Herrera resigned as successor trustee and Paul Herrera accepted the position and duties as successor trustee under the terms of the Jan Trust. On December 2, 2022, Plaintiff filed a First Amended Complaint (“FAC”) for: (1) Partition of that Certain Real Property Commonly Known as 5021 W. 129th Street, Hawthorne, CA 90250 APN: 4144-002-023; and (2) Partition of that Certain Real Property Commonly Known as 521 ½ S/ Oak Street, Inglewood, California 90301 APN: 4018-025-003.

 

 

            B. Procedural

 

On January 03, 2023, Defendants filed a Demurrer to Plaintiff’s FAC. On January 17, 2023, Plaintiff filed an opposition. On January 25, 2023, Defendants filed a reply.

 

 II. MOVING PARTY’S GROUNDS FOR THE DEMURRER

 

¿ Defendants demur to all causes of action in Plaintiff’s complaint on the grounds that Plaintiff has not alleged sufficient facts to state the causes of action. Further, Defendants demur to Plaintiff’s complaint on the ground that there is a defect or misjoinder as to Defendants Darlene Agarwala,  Pronita Ann Agarwala, Sabina Agarwala Miro, Stephen Miro, Christopher Miro, Gregory Mollner, Stephen Miro and Sabina Miro, as Trustee of the Miro Family Trust dated 8/7/2021. The Demurrer relies heavily on the argument that Plaintiff made a judicial admission in the original complaint that the successor trustee he cannot avoid by artful pleading or deletion of a phrase attributed to the predecessor trustee in the amended complaint, but the Court accepts the representation of counsel in the Opposition at page 9 that counsel made a mistake in making the allegations in the original Complaint ¶¶ 25 and 42. The remaining focus of the Demurrer is the status of the individual defendants who are not on title as legal owners of the subjection properties.  Is that a sufficient ground for sustaining the Demurrer?  The Court discusses this below. 

 

 

III. ANALYSIS

 

            Real property partition actions are equitable in nature and governed by statute. (CCP § 872.230.) Real property may be partitioned in three ways: (1) physical division of the property (CCP §§ 873.210-873.290); (2) sale of the property and division of the proceeds (CCP §§ 873.510-873.850]; or (3) court approved and supervised partition by appraisal. (CCP §§ 873.910-873.980.) There is a presumption that property should be divided if possible, rather than forcing a sale on someone who intended to own the property. (CCP § 872.810; see Butte Creek Island Ranch v. Crim (1982) 136 Cal.App.3d 360, 365-366.) The plaintiff must name as defendants all persons having or claiming interests of record, actually known to the plaintiff, or reasonably apparent from an inspection of the property. (CCP §872.510.)

Partition is “ ‘the procedure for segregating and terminating common interests in the same parcel of property.’ ” (14859 Moorpark Homeowner's Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1404-1405.) With certain exceptions, partition actions are governed by CCP §§ 872.010 et seq.  “[A]lthough the action of partition is of statutory origin in this state, it is nonetheless an equitable proceeding [citations] ....” (Elbert, Ltd. v. Federated etc. Properties (1953) 120 Cal.App.2d 194, 200; see § 872.140.) “The policy behind a partition action is to permanently end all disputes about property and to remove all obstructions to its free enjoyment.” (LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 497.)  The Court surmises that plaintiff seeks to fulfill that policy, i.e., to ensure that once partition is ordered, no potential claimant surfaces to assert that they had an interest that was not considered and therefore they are not bound by the partition judgment.  See CCP § 874.225(a), (b) (a partition “judgment does not affect a claim in the property or part thereof of any person who was not a party to the action if ..... actually known to the plaintiff ....”)  There are ample precedents where a party sought to intervened in a pending partition action because they were not named as a defendant and not given formal notice so they could protect their rights or interests. 

Here, Defendant argues that the demurring defendants are named in this partition action because they previously were on title to the 129th Street or Oak Street Properties, not because they are currently on the title.  But Defendants cite no statute or precedent for the proposition that, as a matter of law, only the current owners of record may be joined in a partition action.  Plaintiff asserts that pursuant to Code of Civil Procedure § 872.230, he is required to name as defendants any person known to Plaintiff whose rights may be “materially affected” by partition. Plaintiff also cites to the California Revenue and Taxation Code §§ 11930 and 62(d) for the proposition that the transfers by the individual defendants to their status as trustees of a trust did not change ownership.   Code of Civil Procedure § 872.550, entitled “Joinder of all Persons Unknown Claiming any Interest” is also of interest here.  It provides that where the plaintiff seeks an in rem effect of a partition order, the plaintiff “may join as defendants all persons unknown claiming any interest in the property, naming them in that manner.” 

The partition statutes expressly contemplate that persons who are not on title as record owners of the property may be joined as parties to a partition action.  The partition statutes authorize the plaintiff to join as defendants persons with interests “in the estate as to which partition [was] sought.” (§ 872.510.)  Thus, for example, a tenant could be joined in a partition action as a person with an “interest” in leased estate property because a lease confers a possessory right, i.e., to occupy that property during the lease term. (Yee Chuck v. Board of Trustees (1960) 179 Cal.App.2d 405, 410.) A lienholder also has an “interest” in property because it has a right to enforce the lien by levy of execution and sale of the property that the lien encumbers.

Sections 872.230, 872.510, and 872.550 demonstrate to the Court that there is no legislative mandate that only record title holders can be named as partition defendants.  The law contemplates other parties as partition defendant.  While the Demurring defendants argue that the only proper parties to a partition action are those who hold title -- the 3 or 4 trusts for the two relevant parcels -- the Court disagrees.  Plaintiff has made allegations which, if proven would make the beneficiaries of a trust or members of the marital community of a beneficiary a proper party.  If the evidence shows that these additional defendants in fact have no interest or disclaim any interest in the estates in which partition is sought, the Court will expect Plaintiff to dismiss them as defendants.  But in the absence of prejudice to the individual defendants from being named in the partition action when they ae being represented by the same attorney as is representing the legal owners of the parcels, the Court finds it more equitable to overrule the demurrer and proceed to the next phase of the litigation.