Judge: Timothy B. Taylor, Case: 37-2023-00010044-CU-OR-CTL, Date: 2023-09-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 12, 2023

09/15/2023  01:30:00 PM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Timothy Taylor

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Civil - Unlimited  Other Real Property Demurrer / Motion to Strike 37-2023-00010044-CU-OR-CTL TORRES VS RAMOS [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 04/28/2023

Tentative Ruling on Demurrer to Complaint Torres v. Ramos, Case No. 2023-10044 Sept. 15, 2023, 1:30 p.m., Dept. 72 1. Overview and Procedural Posture.

This is an action for partition by sale of real property located in National City. The complaint was filed in March 2023. It was brought by three sisters – Torres, Garcia, and Herrera – who alleged a 25% ownership interest in the property. The two named defendants, Cruz and Ramos, own a 25% and 50% interest, respectively.

Presently, Ramos demurs to the complaint. ROA 9-11. An amended complaint was filed in July in lieu of opposition. ROA 12. Unlike the original complaint, the FAC is brought solely by Torres in her capacity as trustee of the Jose Luis Lopez Living Trust.

At the CMC last month, Ramos represented to the court that he would be filing an amended demurrer attacking the FAC. ROA 23. The court thus continued the CMC to trail the demurrer hearing. ROA 22-23. However, to date, no amended moving papers have been filed. Nor has Ramos submitted any other responsive pleading.

2. Applicable Standards.

A. A demurrer may only be sustained if the complaint fails to state a cause of action under any possible legal theory. Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 810. Properly pleaded facts must be accepted as true, but not contentions or conclusions of law or fact. Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173. The court's function is limited to testing the legal sufficiency of the complaint, which must be construed with a view to substantial justice between the parties. Fremont Indemnity Co. v. Fremont General Crop. (2007) 148 Cal.App.4th 97, 113; Code Civ. Proc. § 452.

B. A co-owner of real or personal property may bring an action for partition. Code Civ. Proc. § 872.210.

The determination of whether the plaintiff has the right to partition is decided 'at the trial.' Code Civ.

Proc. § 872.710(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 Calendar No.: Event ID:  TENTATIVE RULINGS

2967277 CASE NUMBER: CASE TITLE:  TORRES VS RAMOS [IMAGED]  37-2023-00010044-CU-OR-CTL of the property and, unless it is to be later determined, the manner of partition.' Code Civ. Proc. § 872.720(a). The manner of partition may be 'in kind' – i.e., physical division of the property (see, e.g., Butte Creek Island Ranch v. Crim (1982) 136 Cal.App.3d 360, 365) – according to the parties' interests as determined in the interlocutory judgment. See Code Civ. Proc. §§ 872.810; 873.210. Alternatively, if the parties agree or the court concludes it 'would be more equitable,' the court may order the property sold and the proceeds divided among the parties. See Code §§ 872.820; 873.510. The third option, '[w]hen the interests of all parties are undisputed or have been adjudicated,' and the parties agree (Code Civ. Proc. § 873.910), is partition by appraisal. See Code Civ. Proc. § 873.910 et seq.

3. Ruling.

The demurrer to the complaint is overruled as moot in light of the timely filing of the FAC. Code Civ.

Proc. § 472(a). Ramos is directed to file and serve an answer to the FAC by September 25, 2023.

4. CMC.

The parties should attend the hearing prepared to assist the court in setting the case for trial and scheduling other litigation benchmarks.

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