Judge: Thomas Falls, Case: 22PSCV01149, Date: 2023-01-11 Tentative Ruling
Case Number: 22PSCV01149 Hearing Date: January 11, 2023 Dept: O
HEARING DATE: Wednesday, January 11, 2023
RE: LORRENA CONTRERAS vs RIDER JIMMY LEON (22PSCV01149)
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DEFENDANT, RIDER LEON’S, DEMURRER TO PLAINTIFF’S COMPLAINT
FOR PARTITION OF REAL PROPERTY
Responding Party: Unopposed as of 01/04 (due 9 court days
before the hearing)
Tentative Ruling
DEFENDANT, RIDER LEON’S, DEMURRER TO PLAINTIFF’S
COMPLAINT FOR PARTITION OF REAL PROPERTY is SUSTAINED with60 days
leave to amend.
Background
This is a complaint for the partition of real property.
Plaintiff Lorrena Contreras alleges that she and Defendant Rider Jimmy Leon are
co-owners of the subject property, each with ½ interest. Plaintiff alleges that
there is a lien or encumbrance on the property by a party “known to Plaintiff”
such that the “action is brought, and partition is sought for the common
benefit of the parties.”[1]
On October 3, 2022, Plaintiff filed suit.
On November 4, 2022, Defendant filed a Demurrer.
Discussion
Defendant demurs to the 1st cause of action on
two grounds: (1) the complaint fails to name a necessary or indispensable party
(or parties) to the action in violation of Code of Civil Procedure §§ 430.10(d)
and (2) the complaint fails to state a cause of action in violation of Code of
Civil Procedure §§ 430.10(e).
According to CCP section 431.10 subdivision (d), a demurrer
is appropriate when there is a defect or misjoinder of parties. Additionally,
according to CCP section 872.230, a partition complaint must contain “a
description of all interests, either of record or actually known to the
plaintiff or held or claimed by other persons, that the plaintiff reasonably
believes will be materially affected by the action, whether or not the
plaintiff knows the names of those holding the interests.” (See also Demurrer
p. 3.)
Here, Plaintiff concedes that she knows who has a lien on
the property; yet, Plaintiff does not name the third party nor include it as a
defendant. Accordingly, the complaint is vulnerable to CCP section 430.10
subdivision (d). Moreover, the complaint fails to state a cause of action for
partition for similar reasons that it fails to comply with section 430.10 (d) by
its failure to describe the lien holder.
Conclusion
Based on the foregoing—such that Plaintiff has failed to
join the lien holder as a defendant nor identified the lien holder with the
requisite description—the demurrer is SUSTAINED with 60 days leave to amend.