Judge: Yolanda Orozco, Case: 22STCV13404, Date: 2023-05-04 Tentative Ruling

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Case Number: 22STCV13404    Hearing Date: May 4, 2023    Dept: 31

PROCEEDINGS:     DEMURRER TO FAC WITHOUT MOTION TO STRIKE

MOVING PARTY:   Defendant Agustin Quiroz

RESP.  PARTY:        Plaintiff Chantel G. Estive

DEMURRER TO FAC WITHOUT MOTION TO STRIKE

TENTATIVE RULING

Defendant Agustin Quiroz’s demurrer to Plaintiff’s First Amended Complaint is OVERRULED.

background

On April 21, 2022, Plaintiff Chantel G. Estive filed a Complaint against Defendants Agustin Quiroz (“Quiroz”); Nationstar Mortgage LLC dba Mr. Cooper; WFG National Title Insurance Co.; and Does 1 to 50.

The operative First Amended Complaint (FAC) asserts causes of action for (1) Partition and Sale of Real Property and (2) Ouster.

On October 21, 2022, Defendant filed a Demurrer to Plaintiff’s FAC.

Plaintiff filed opposing papers on March 29, 2023.

On April 27, 2023, Defendant filed a reply.

MEET AND CONFER

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to, in person or telephonically, to determine whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc. (CCP) § 430.41.)¿ 

The meet and confer requirement has been met. (Carlsen Decl. ¶ 3.)

Legal Standard

Where pleadings are defective, a party may raise the defect by way of a demurrer.¿ (Coyne v. Krempels (1950) 36 Cal.2d 257, 262.) A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.¿ (Code Civ. Proc., § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In evaluating a demurrer, the court accepts the complainant’s properly-pled facts as true, and ignores contentions, deductions, and conclusory statements. (Daar v. Yellow Cab Co. (1976) 67 Cal.2d 695, 713; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) Moreover, the court does not consider whether a plaintiff will be able to prove the allegations, or the possible difficulty in making such proof. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604.) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿ The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)¿¿¿ 

DISCUSSION 

Allegations in FAC

Plaintiff Chantal Estive and Defendant Augustin Quiroz were in a romantic partnership and have two children. (FAC ¶ 1.) In February 2015, they purchased the subject property located in Winnetka, CA. (FAC ¶ 1, Ex. A [Deed of Grant]; Ex. B [Deed of Trust].)

The purchase was financed by a loan from Pacific Union Financial, LLC (“Pacific Union”), secured by deed of trust with both Plaintiff and Defendant on the title and loan. (FAC ¶ 5, Ex. A, B.) The Deed of Trust named Defendant WFG National Title Insurance Company (“WFG”) as trustee. Later, Defendant Nationstar Mortgage LLC (“Nationstar”) became the successor to the mortgage lender Pacific Union. (FAC ¶ 3.)

In January 2019, Plaintiff’s and Defendant’s relationship soured, and Defendant was asked to move out. (FAC ¶ 6.) Instead, Defendant changed the locks and Plaintiff was ousted from the property. (FAC ¶¶7, 14-17.)

On April 21, 2022, Plaintiff filed a Complaint seeking partition and sale of the property.  Plaintiff seeks her portion of the equity and fair rental value of the property for the time she has been ousted. (FAC at p. 2.)

Defendant’s notice to the demurrer to the FAC states that Plaintiff has failed to join all necessary parties, the FAC fails to sufficiently plead a cause of action, and the statute of limitations. The Court notes no demurrer based on the statute of limitations was made and the Court considers any such argument waived.

Misjoinder of Parties

Defendant asserts Plaintiff has failed to “join as defendants in the action all persons having or claiming interests of record…” (Code Civ. Proc., § 872.510.) Defendant asserts that Mortgage Electronic Registration Systems, Inc. (“MERS”) is the beneficiary must be joined as a necessary party. (FAC Ex. B.)

Plaintiff asserts that because MERS is a nominal beneficiary under the deed of trust and MERS is not a necessary party in a partition action. Plaintiff fails to cite any case law that nominal beneficiaries in a partition action are not necessary parties that must be joined.

Plaintiff argues that because the underlying rights that MERS would defend are derivative of those held by Defendant Nationstar as the successor of servicer Pacific Union, there is no need for MERS to be joined since it is interest or rights are already represented by Nationstar.

The Deed of Grant states:

“Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower of this Security Instrument, but, if necessary to comply with law or customs, MERS (as nominee for Lender and Lender’s successors and assigns) has the right to: exercise any all those interest, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing or canceling this Security Instrument.”

(FAC Ex. B at p. 2 of 9.)

The Editors’ Notes for section 872.230 states, in the relevant part:

“Unlike the former provision that required all interests to be set out regardless of whether the interests would be affected, subdivision (c) limits the requirement to only those interests the plaintiff reasonably believes will be materially affected by the partition action. Incorporation of a title report should be sufficient to satisfy this requirement as to recorded interests but not as to unrecorded interests known to the plaintiff.”

(Code Civ. Proc., § 872.230.) Therefore, because Plaintiff believes that MERS interest will not be materially affected by the partition action, MERS need not be joined in this action. Moreover, Defendant fails to show MERS interest will be materially affected by the partition such it must be joined in the action.

Therefore, the demurrer is OVERRULED on the basis that there is no misjoiner of parties. (Code Civ. Proc., § 430.10 subd. (d).)

First Cause of Action: Partition

“A partition action may be commenced and maintained by any of the following persons: (1) A coowner of personal property.  (2) An owner of an estate of inheritance, an estate for life, or an estate for years in real property where such property or estate therein is owned by several persons concurrently or in successive estates.” (Code Civ. Proc., § 872.210 subd. (a).)

“Notwithstanding Section 872.810, the court shall order that the property be sold and the proceeds be divided among the parties in accordance with their interests in the property as determined in the interlocutory judgment in the following situations: (a) The parties agree to such relief, by their pleadings or otherwise.  (b) The court determines that, under the circumstances, sale and division of the proceeds would be more equitable than division of the property.  For the purpose of making the determination, the court may appoint a referee and take into account [the referee’s] report.”  (Code Civ. Proc., § 872.820.)

Defendant asserts that the first cause of action is deficient because Plaintiff has failed to allege all interest of record known that have a claim to the property and facts justifying partition by sale.  

First, Defendant asserts Plaintiff was required to state what interest Defendant or the two children have on the property and that “Plaintiff holds title . . . as joint tenant” is insufficient. (FAC ¶ 10.) The Court finds that Plaintiff sufficiently alleged that Plaintiff and Defendant are “joint tenants”, and that Defendant is “exercising sole possession over the property.” (FAC at p. 2.) Plaintiff is not required to allege what interest the children hold because Plaintiff knows they hold no interest. More importantly, Plaintiff is not required to list every unknown interest, but only those “actually known to plaintiff or reasonably apparent from an inspection of the property[.]” (Code Civ. Proc., § 872.510.)

Second, Defendant asserts Plaintiff was required to allege facts justifying partition by sale and the allegation that “Plaintiff holds title as joint tenant and therefore her right to partition is absolute” is insufficient. (FAC ¶ 10.)

Paragraph 10 of the FAC cites two cases supporting the assertion that Plaintiff’s right to partition is absolute as a joint tenant: Priddel v. Shankie (1945) 69 Cal.App.2d 319, 325 [finding that a tenant in common’s right to partition is absolute]; Bacon v. Wahrhaftig (1950) 97 Cal.App.2d 599, 603 [same].

Therefore, Plaintiff’s pleading is sufficient and the demurrer to the first cause of action is OVERRULED.

Second Cause of Action: Ouster

An ouster, in the law of tenancy in common, is the wrongful dispossession or exclusion by one tenant of his cotenant or cotenants from the common property of which they are entitled to possession. The ouster must be proved by acts of an adverse character, such as claiming the whole for himself, denying the title of his companion, or refusing to permit him to enter.” (Zaslow v. Kroenert (1946) 29 Cal.2d 541, 548.) The procedure to establish an ouster is governed by Civil Code section 843.

Defendant demurs to the second cause of action on the basis that Plaintiff has no recoverable interest since “Plaintiff has not contributed to the mortgage, payments, property improvements, or property maintenance and upkeep.” (FAC ¶ 8.) Defendant asserts that because there is a mortgage, it precludes Plaintiff’s and Defendant’s entitlement to rent such that it precludes Plaintiff’s relief for ouster. (FAC Ex. B at § 17.) Defendant asserts Plaintiff cannot receive the fair rental value of the Property because there is no rent which either Defendant or Plaintiff would be entitled to collect.

Defendant objects to the measure of Plaintiff’s damages and fails to show that Plaintiff is not entitled to recover damages for the loss of use of the property measured by the rental value of the property. (See Zaslow, supra, 29 Cal.2d at 549.) “A tenant in common or a joint tenant who has been ousted from the common property by a cotenant may recover, in addition to possession, damages resulting from the ouster equal to his or her share of the value of the use or of the rents and profits or the rental value during the time of the ouster.” (16 Cal. Jur. 3d Cotenancy and Joint Ownership § 64.)

The fact that Defendant objects to the remedies sought is insufficient to show there is a defect in the pleadings.

The demurrer to the second cause of action is OVERRULED.

CONCLUSION

Defendant Agustin Quiroz’s demurrer to Plaintiff’s First Amended Complaint is OVERRULED.

Moving party to give notice.