Judge: Salvatore Sirna, Case: 23PSCV01693, Date: 2023-10-16 Tentative Ruling

Case Number: 23PSCV01693    Hearing Date: October 16, 2023    Dept: G

Defendant Sandra Garcia’s Motion to Strike Portions of Plaintiff Ramiro S. Lopez’s Verified Partition Complaint

Respondent: Plaintiff Ramiro S. Lopez

TENTATIVE RULING

Defendant Sandra Garcia’s Motion to Strike Portions of Plaintiff Ramiro S. Lopez’s Verified Partition Complaint is GRANTED IN PART with ten (10) days leave to amend as to Lopez’s request for prejudgment interest and DENIED IN PART on all other grounds.

BACKGROUND

This is a partition action involving real property in Pomona. In April 1994, Maria Luisa Sandoval and Plaintiff Ramiro S. Lopez acquired the Pomona property through a grant deed as tenants-in-common. In February 2022, Sandoval and Lopez mortgaged the Pomona property through Defendant Travelers Bank & Trust (Travelers). In May 2004, Sandoval and Lopez also mortgaged the Pomona property through Defendant Mortgage Electronic Registration Systems, Inc. (MERS). After Sandoval passed away in October 2022, the relationship between Lopez and Defendant Sandra Garcia, the successor trustee of the Maria Luisa Sandoval Trust (Sandoval Trust), allegedly deteriorated.

On June 6, 2023, Lopez filed a complaint against Garcia, MERS, Travelers, and Does 1-10, alleging a cause of action for partition.

On September 1, 2023, Garcia filed the present motion. Prior to filing on that same day, Garcia’s counsel met and conferred telephonically with Lopez’s counsel and was unable to reach a resolution. (Lepe Decl., ¶ 2.)

A hearing on the motion to strike is set for October 16, 2023. A case management conference and OSC Re: Failure to File Proof of Service are also set for November 6.

ANALYSIS

Garcia moves to strike a total of eleven items from Lopez’s Complaint including (1) common benefit allegations, (2) right of use and occupancy allegations, (3) requests for compensatory and equitable damages, (4) a request for a tenancy-in-common judgment, (5) a request for an award of costs and expenses, (6) a request for appointment of a partition referee and receiver, (7) equitable relief, (8) a request for damages imposed on Garcia’s interest in the Pomona property, (9) a request for a writ of possession, and (10) a request for pre-judgment interest.

For the following reasons, the court GRANTS Garcia’s motion as to the tenth issue and DENIES Garcia’s motion on all other grounds.

Legal Standard

Upon a party’s motion or the court’s own motion, the court may strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436, subd. (b).) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)

An immaterial or irrelevant allegation includes “(1) An allegation that is not essential to the statement of a claim or defense,” “(2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense,” or “(3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.” (Code Civ. Proc., § 431.10.) The court may also “strike false, i.e. untrue, matters contained in a pleading whenever their falsity or untruthfulness is revealed by facts which are judicially noticed.” (Garcia v. Sterling (1985) 176 Cal.App.3d 17, 21.)

(1) Common Benefit Allegations

Garcia argues Lopez’s allegations that this action is maintained for the parties’ “common benefit” are false and frivolous. (Complaint, ¶ 19, 28.) But Garcia does not point to any other allegation in the Complaint or judicially noticeable fact that establishes these allegations are false. Accordingly, Garcia’s motion to strike on these grounds is DENIED.

(2) Right of Use and Occupancy Allegations

Garcia contends Lopez’s allegation that “he has a right to full use and occupancy of the [Pomona property]” is false and frivolous. (Complaint, ¶ 24.) But while Garcia contends Lopez’s alleged tenancy-in-common does not allow Lopez to have exclusive access, Lopez’s allegation does not state such “use and occupancy” is exclusive. Accordingly, Garcia’s motion to strike on these grounds is DENIED.

(3) Compensatory and Equitable Damages

Garcia maintains Lopez’s request for compensatory and equitable damages is improper. (Complaint, Prayer, ¶ A.) But Garcia concedes that Lopez may be entitled to a compensatory adjustment and fails to point to any binding authority that prohibits Lopez from seeking such damages in a partition action. Accordingly, Garcia’s motion to strike on these grounds is DENIED.

(4) Tenancy-in-Common Judgment

Garcia argues Lopez’s request “[f]or a judgment that the Parties are each fifty-percent (50%) tenants-in-common owners of the [Pomona property]” is improper. (Complaint, Prayer, ¶ B.) But while Garcia argues this is improper as Lopez has requested partition by sale, this argument is ignorant of the fact that the law requires the court to enter such a judgment. (See Code Civ. Proc., § 872.720, subd. (a) [“If the court finds that the plaintiff is entitled to partition, it shall make an interlocutory judgment that determines the interests of the parties in the property and orders the partition of the property and, unless it is to be later determined, the manner of partition.”].) Accordingly, Garcia’s motion to strike on these grounds is DENIED.

(5) Award of Costs and Expenses

Garcia contends Lopez’s request for the award of costs and expenses is improper because there is no determination that the costs and expenses of this action were incurred for a common benefit. (Complaint, Prayer, ¶ C.) The court finds this argument entirely without merit as Lopez specifically alleges this action was brought for the common benefit. (See Complaint, ¶ 19, 28.) Accordingly, Garcia’s motion to strike on these grounds is DENIED.

(6) Appointment of Partition Referee and Receiver

Garcia maintains Lopez’s request for the appointment of a partition referee and receiver is improper because Lopez has failed to allege Lopez’s right of possession is threatened by another tenant-in-common. (Complaint, Prayer, ¶ D.) But, Lopez specifically alleged the deterioration of parties’ relationship, the lack of communication, and an inability to agree on how to divide the property. (Complaint, ¶ 19.) The court finds this pleading sufficient to request this form of relief and that any further findings would be premature at this time. Accordingly, Garcia’s motion to strike on these grounds is DENIED.

(7) Equitable Relief

Garcia argues Lopez’s request “[f]or equitable relief to change the locks, eject and exclude any individuals occupying the [Pomona property] or with keys to the [Pomona property], and prepare the [Pomona property] for marketing and sale” is improper. (Complaint, Prayer, ¶ E.) Garcia argues it is improper because Lopez does not currently have exclusive possession of the property and the resolution of this action will not require such a remedy. However, Garcia’s opinion as to what will and will not be required at the end of this action’s resolution is not a proper basis for a motion to strike. Accordingly, Garcia’s motion to strike on these grounds is DENIED.

(8) Damages Imposed on Garcia’s Interest in the Pomona Property

Garcia contends Lopez’s request “[f]or a judgment imposing [Lopez]’s damages on the Defendants’ interests in the [Pomona property], which judgment shall be secured by a lien on, and paid out of, the Defendants’ portion of the net proceeds from the sale” is improper. (Complaint, Prayer, ¶ I.) But Garcia admits that Lopez may be entitled to a compensatory adjustment. Accordingly, Garcia’s motion to strike on these grounds is DENIED.

(9) Writ of Possession

Garcia maintains Lopez’s request for a writ of possession is improper because Lopez does not currently have exclusive possession of the property and the resolution of this action will not require such a remedy. (Complaint, ¶ 24, Prayer, ¶ J.) But as noted above, Garcia’s opinion as to what will and will not be required at the end of this action’s resolution is not a proper basis for a motion to strike. Accordingly, Garcia’s motion to strike on these grounds is DENIED.

(10) Prejudgment Interest

Garcia argues Lopez’s request for prejudgment interest is improper. (Complaint, Prayer, ¶ L.) The court agrees since Lopez’s requested damages are not “certain, or capable of being made certain by calculation” from a specific day pursuant to Code of Civil Procedure section 3287, subdivision (a). (See Jamison v. Jamison (2008) 164 Cal.App.4th 714, 721.) Accordingly, Garcia’s motion to strike on this ground is GRANTED.

CONCLUSION

Based on the foregoing, Garcia’s motion to strike portions of Lopez’s Complaint is GRANTED IN PART with ten (10) days leave to amend as to Lopez’s request for prejudgment interest and DENIED IN PART on all other grounds.