Philbrick v. Michielssen 16CVP-0133

Re: Motion for Leave to File Second Amended Complaint

Date: April 3, 2018

Plaintiffs John Philbrick and Diane Elizabeth Allen, Trustee of the Clyde Philbrick Family Survivor’s Trust and the Clyde Philbrick Family Exemption Trust (collectively “Plaintiffs” or “Philbrick”) filed this action against defendant Eric Michielssen (“Michielssen”) seeking to quiet title to an alleged easement running across property owned by Michielssen on May 26, 2016. The current operative complaint is the First Amended Complaint, which alleges five causes of action for 1) Quiet Title to Express Easement, 2) Quiet Title to Prescriptive Easement, 3) Quiet Title to Prescriptive Easement,4) Quiet Title to Equitable Easement and 5) Declaratory and Injunctive Relief (“FAC”).

On November 13, 2017, Michielssen filed a motion for summary adjudication of Plaintiffs’ first and second causes of action, which was fully briefed and heard on February 6, 2018 and taken under submission. On March 29, 2018 the Court issued its ruling granting summary adjudication as to the first cause of action, and denying summary adjudication as to the second cause of action. Thus, only the latter four causes of action against Michielssen are still pending, and any amended Complaint would not be permitted to allege a cause of action for Quiet Title to Express Easement.

Plaintiffs move here pursuant to Code of Civil Procedure sections 473 and 576 and California Rules of Court, Rule 3.1324 (“Motion”) to for leave to file a proposed Second Amended Complaint (“SAC”), which makes minor changes to the facts alleged in the FAC, and joins for the first time First American Title Company (“FATCO”), alleging two new causes of action solely against FATCO for Equitable Estoppel and Breach of the Implied Covenant of Good Faith and Fair Dealing arising out of alleged agreements, representations and/or actions by FATCO, relating to the alleged easement, to Plaintiffs’ predecessors in or around 1981-1982. FATCO is not named as a defendant in any of the causes of action against Michielssen. Plaintiffs assert that these causes of action arise from the same set of facts and circumstances as Plaintiffs’ claims against Michielssen, and that no prejudice will result to Michielssen from the amendment. Michielssen opposes the Motion.

The Court “may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading.” (Code Civ. Proc. § 473(a)(1).) Trial courts liberally permit such amendments. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 488-89.) The Court ordinarily does not consider the validity or substance of the amendments being proposed, which is more properly addressed in a demurrer or other motion, but does look at whether there will be prejudice to the opposing party. (See, Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048; Morgan v. Sup.Ct. (1959) 172 CA2d 527, 530 [“If the motion to amend is timely made and the granting of the motion will not

prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.”])

The Court will first address Michielssen’s argument that the Motion should be denied because joinder of FATCO as a defendant is improper pursuant to Code of Civil Procedure section 379. Section 379 states as follows:
(a) All persons may be joined in one action as defendants if there is asserted against them: (1) Any right to relief jointly, severally, or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action; or (2) A claim, right, or interest adverse to them in the property or controversy which is the subject of the action.

(b) It is not necessary that each defendant be interested as to every cause of action or as to all relief prayed for. Judgment may be given against one or more defendants according to their respective liabilities.

(c) Where the plaintiff is in doubt as to the person from whom he or she is entitled to redress, he or she may join two or more defendants, with the intent that the question as to which, if any, of the defendants is liable, and to what extent, may be determined between the parties. (Code Civ. Proc., § 379 (emphasis added).)

Courts permit broad joinder of causes of action, and there need be no common question between or among the various causes of action. However, where there are more than one defendants, there must be a question of law or fact common to all the defendants. (Code Civ. Proc., § 379(a)(1).) Joinder has been held to be improper where the plaintiff’s allegations showed distinct causes of action and distinct theories of relief from each defendant. (See Hoag v. Superior Court of Los Angeles County (1962) 207 Cal.App.2d 611.1)

The Court is persuaded that the elements of Code of Civil Procedure section 379 (a)(1) and (a)(2) are not satisfied here. Plaintiff’s claims against Michielssen all seek to quiet title to an easement that either arises from implication from a 1923 deed, from equity or from prescriptive use. In contrast, Plaintiff’s claims against FATCO arise out of alleged agreements, actions and representations by FATCO directed at Plaintiff’s predecessors in interest, occurring in 1981-1982. The relief sought against FATCO is wholly distinct from that sought against Michielssen: a judgment that FATCO is equitably estopped from
1 Although Hoag addressed an earlier version of Code of Civil Procedure section 379, it is cited in the Legislative Committee Comments for section 379 as follows: “The amendment to Section 379 substitutes the more understandable “transaction” test set forth in Rule 20(a) of the Federal Rules of Civil Procedure. However, in so doing, the section probably merely makes explicit what was implicit in prior decisions. See Hoag v. Superior Court, 207 Cal.App.2d 611, 24 Cal.Rptr. 659 (1962).” (Code Civ. Proc., § 379)

denying the easement and from furnishing Michielssen with a defense in this action, as well as damages. To prevail against Michielssen, Plaintiffs will need to prove that an easement exists, be it implied, equitable or prescriptive. To prevail against FATCO, Plaintiffs will need to prove the agreements, representations or actions made by FATCO in 1981-1982, and Plaintiffs’ predecessors’ actions or inactions in response.

Plaintiffs attempt to join two separate defendants against who are alleged separate causes of action arising from different transactions or occurrences, with distinct theories of relief. The Court finds that joinder is improper here.

Michielssen further argues that he will be prejudiced by the proposed amendments. Michielssen argues he will be prejudiced on the grounds of unreasonable delay in bringing the amendment, the proposed amendment opens entirely new areas of inquiry, discovery has already been undertaken and a motion for summary adjudication has already been heard, and Michielssen is prepared to set a trial date. Plaintiffs argue that there will be no prejudice to Michielssen from the proposed amendments. Plaintiffs argue that they were not aware of their potential claims against FATCO until discovery of evidence in the current action, that Michielssen’s ability to prepare for trial will not be affected, and that the amendments do not prejudicially change the existing allegations against Michielssen.

While Plaintiffs may not have discovered their grounds for the amendments until recently, this action has been pending for two years. Discovery has been conducted, a motion for summary adjudication has been filed, heard and ruled upon, and Michielssen argues that he is ready to set a trial date. The proposed amendments will start the case over from the beginning as to the new causes of action and new defendant, leaving Michielssen in a holding pattern with a lis pendens clouding title to his property while the other parties go through motion practice and discovery. The Court finds that Michielssen will be prejudiced by allowing the proposed amendment.

As to prejudice to Plaintiffs from failure to allow the amendment, Plaintiffs can immediately file a separate action against FATCO on their claims. In fact, it appears to the Court that Plaintiffs could benefit from having their case against Michielssen and the question of the easement resolved sooner. Plaintiffs will still be able to obtain any damages from FATCO to which they are entitled.

The Court agrees with Plaintiffs that Michielssen’s arguments based on public policy, “sham” amendment, SLAPP, and failure to state a cause of action are inapposite, premature and/or unavailing at this time and does not base its ruling on those arguments.

While leave to amend is liberally granted, due to the Court’s finding that joinder of FATCO is improper in this instance, that there will be prejudice to Michielssen as a result of the proposed amendment and because Plaintiffs will not be deprived of asserting their claims against FATCO in a separate action, Plaintiffs’ Motion is denied.