18-CIV-03889 LYNETTE RODRIGUEZ VS. JOHN H. MURZI, JR., ET AL.

LYNETTE RODRIGUEZ JOHN H. MURZI
DAVID G. FINKELSTEIN PRO/PER

MOTION FOR ENTRY OF INTERLOCUTORY JUDGMENT BASED ON DEFENDANT’S DEFAULT OF SETTLEMENT OBLIGATION BY LYNETTE RODRIGUEZ TENTATIVE RULING:

The Motion of Plaintiff Lynette Rodriguez (“Plaintiff”) for Entry of Interlocutory Judgment is CONTINUED to October 23, 2019 at 9:00 A.M. in the Law and Motion Department.

While Plaintiff has established that Defendant John H. Murzi defaulted under the terms of the Settlement Agreement and that the Settlement Agreement provides for entry of judgment, it is unclear whether the Court may enter judgment at this time. A partition complaint shall set forth “[a]ll interests of record or actually known to the plaintiff that persons other than the plaintiff have or claim in the property and that plaintiff reasonably believes will be materially affected by the action, whether the names of such persons are known or unknown to plaintiff.” (C.C.P. §872.230(c).) Where a plaintiff has knowledge of a lien on the property, plaintiff is under a statutory duty to set it forth in the complaint. (Stewart v. Abernathy (1944) 62 Cal.App.2d 429, 431.) The Complaint here fails to address this issue and, therefore, it is unclear whether any such interests exist. If there is such an interest, then Plaintiff should address whether or not such person should be joined as a defendant in this action. (See C.C.P. §872.510.)

The Court notes that there do not appear to be any liens recorded against the property based on the Preliminary Title Report. (See Weinberg Decl., Exh. E.) However, Plaintiff’s counsel also states that “Plaintiff does not seek to invalidate any liens, easements, or other lawful encumbrances on the property.” (See Weinberg Decl., ¶15.) Thus, it is uncertain whether there are any recorded liens. In any event, the statute requires not just identifying recorded interests, but also interests actually known to Plaintiff that Plaintiff reasonably believes will be materially affected by this action.

Plaintiff is, therefore, to provide further briefing on this issue and whether the Court may enter judgment at this time in light of the above. Any supplemental briefing and evidence are to be filed and served by October 16, 2019.