San Pascual Fidiciary Trust vs Candis Houser et al
Case No: 17CV05052
Hearing Date: Wed May 30, 2018 9:30

Nature of Proceedings: Demurrer

TENTATIVE RULING:

For the reasons set forth herein, the demurrer of defendant Candis Houser to the complaint is overruled in its entirety. Defendant Houser shall file and serve her answer to the complaint on or before June 14, 2018.

Background:

Plaintiff San Pasqual Fiduciary Trust Company (San Pasqual) is the successor trustee of Trust “B” of the Wallin Family Trust (the Trust). (Complaint, ¶ 2.) In that capacity, San Pasqual owns an undivided 90 percent interest in real property located at 1015 Laguna Street, Santa Barbara (the Property). (Complaint, ¶¶ 1-2.) San Pasqual’s interest in the Property is as tenant in common with defendant Candis Houser, who owns the remaining undivided 10 percent interest. (Complaint, ¶ 3.) Houser has expressed unhappiness with the recent efforts of San Pasqual’s professional, third party manager of the Property. (Ibid.)

Defendant JP Morgan Chase Bank (Bank) is the beneficiary of a deed of trust encumbering the Property with a current unpaid principal balance of $88,867.81, as of August 31, 2017. (Complaint, ¶ 4.)

Defendants Alizon Harris, Kristopher Harris, Zachery Harris, Jordanna Harris, and Gavrielle Harris (collectively, the Harris defendants) are remainder beneficiaries of the Trust. (Complaint, ¶ 6.)

On November 8, 2017, San Pasqual filed this action asserting a single cause of action for partition by sale of the Property.

San Pasqual alleges that it is more equitable to partition the Property by sale because (1) physical partition is impossible where the Property consists of a two-story building containing 13 apartment units on an urban lot of approximately 14,000 square feet within the City of Santa Barbara, (2) any parcels created by a physical partition would not comply with the Subdivision Map Act, and (3) the owners of the Property would suffer great financial loss if the Property were physically divided. (Complaint, ¶ 11.)

On March 3, 2018, the Harris defendants filed their answer which, among other things, admits that the Harris defendants support the partition of the Property. (Harris Defendants Answer, ¶ 6.)

On March 13, 2018, Houser filed her first demurrer to the complaint. Counsel for Houser did not comply with the pre-filing requirements of Code of Civil Procedure section 430.41. The oppositions to the demurrer argued that the demurrer was procedurally defective both for failure to comply with section 430.41 and for failure to state the grounds upon which the demurrer was made. In reply to this opposition, Houser argued that non-compliance with rules that do not have a statutory penalty do not prevent a court from ruling on the merits of the demurrer.

On April 10, 2018, San Pasqual requested, and the court entered, default as to Bank.

On April 11, 2018, the court on its own motion ordered Houser’s demurrer stricken for failing to comply with section 430.41.

On April 24, 2018, Houser filed this demurrer to the complaint accompanied by a meet and confer declaration. The new demurrer appears for its first six pages addressing the substance of the demurrer to be identical to the prior demurrer. The remainder of the new demurrer appears to be identical to Houser’s reply to the prior opposition, arguing first that Houser’s failure to follow procedural rules should have no consequence and then that the demurrer is meritorious for the same reasons stated earlier in the demurrer.

Plaintiff San Pasqual and the Harris defendants both oppose Houser’s demurrer. The oppositions both point out that the demurrer is procedurally defective for the same reason as previously argued in failing to state the grounds for the demurrer and is substantively incorrect because the complaint is sufficiently alleged.

Analysis:

(1) Procedural Matters

“A demurrer shall distinctly specify the grounds upon which any of the objections to the complaint, cross-complaint, or answer are taken. Unless it does so, it may be disregarded.” (Code Civ. Proc., § 430.60.) “Each ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses.” (Rules of Court, rule 3.1320(a).)

The notice of demurrer erroneously, and for the second time, refers to San Pasqual’s complaint as one for “unlawful detainer” and fails to comply with rule 3.1320(a) to set forth the grounds for the demurrer as separate paragraphs. Instead of fixing a very simple problem by a minor correction of the text (which is more typically addressed by a separate page that formally states each ground for demurrer) after this problem was pointed out in the prior demurrer, Houser instead includes argument in the demurrer that violations of rules should have no consequence. The court finds this approach very disturbing. The procedural rules, including rules regarding format, are designed to ease the burden on counsel, and on the court, in understanding the arguments made in the papers. The court frequently forgives lapses in following the rules both to ensure substantive fairness and in recognition that procedural perfection is usually only an aspiration rather than an expectation. Refusing to fix a clear mistake on the grounds that violations of the rules should not have consequences is the sort of conduct that justifies the imposition of sanctions because the immediate consequence of failure to follow such rules is to impose added and unnecessary burdens on the court and on other counsel.

The court will address the demurrer on the merits here in the interests of moving this case forward, but the parties are reminded of their obligations to follow rules in the future. (See Rules of Court, rule 2.30.)

(2) Demurrer

The only cause of action in the complaint is for partition by sale of the Property. A complaint for partition requires the following:

“(a) A description of the property that is the subject of the action. In the case of tangible personal property, the description shall include its usual location. In the case of real property, the description shall include both its legal description and its street address or common designation, if any.

“(b) All interests the plaintiff has or claims in the property.

“(c) All interests of record or actually known to the plaintiff that persons other than the plaintiff have or claim in the property and that the plaintiff reasonably believes will be materially affected by the action, whether the names of such persons are known or unknown to the plaintiff.

“(d) The estate as to which partition is sought and a prayer for partition of the interests therein.

“(e) Where the plaintiff seeks sale of the property, an allegation of the facts justifying such relief in ordinary and concise language.” (Code Civ. Proc., § 872.230.)

In her demurrer, Houser argues that the complaint is insufficiently pleaded because it does not sufficiently plead the facts justifying relief by sale of the Property and because the complaint is uncertain as to the date when Houser disagreed with the property manager.

“The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also ‘give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.’” (Yanting Zhang v. Superior Court (2013) 57 Cal.4th 364, 370, internal quotation marks and citations omitted.)

Houser provides three reasons why the complaint fails adequately to allege facts showing why partition by sale is warranted: (1) there are no facts stating why physical partition would be impossible; (2) the allegation that resulting parcels would not comply with the Subdivision Map Act is conclusory; and (3) the allegation that the parties would suffer great financial loss is conclusory.

“As a rule, the law favors partition in kind, since this does not disturb the existing form of inheritance or compel a person to sell his property against his will. Forced sales are strongly disfavored. [Citation.] The 1976 revision of the partition statute, section 872.810, continues this preference, but the standard for allowing a sale of property has been changed from ‘great prejudice’ to ‘more equitable’ under section 872.820, subdivision (b), thereby enabling sale in cases where it previously was precluded under the predecessor statute. [¶] Under the former statute whether actual partition could be had or whether a sale was necessary was a question of fact which the party seeking the sale had to prove.” (Richmond v. Dofflemyer (1980) 105 Cal.App.3d 745, 757.)

The allegations of the complaint are sufficient to allege partition by sale. The requirement of section 872.230, subdivision (e), is only to allege facts justifying partition by sale in ordinary and concise language. This is the ordinary standard for pleading ultimate facts in a complaint. (See Code Civ. Proc., § 425.10, subd. (a)(1).) It has long been held that the ultimate fact to be alleged is the basic statement of why physical partition is not justified: “Whether a partition can or cannot be made by metes and bounds is purely a question of fact, and is the ultimate fact to be found, and therefore the only fact necessary to be averred under any system of pleading with which we are acquainted. The constituent facts, or those which lie behind, are merely probative, and need not be averred.” (De Uprey v. De Uprey (1865) 27 Cal. 329, 332.)

Here, the allegations, taken together, provide a clear and concise reason why partition by sale is justified. The Property is an apartment building; physical partition for division 90 percent/ 10 percent would require considerably more than creating two proportionate parcels, including compliance with the Subdivision Map Act. To state a cause of action for partition by sale it is sufficient to allege that such a partition cannot be accomplished either legally or economically. (See also Code Civ. Proc., § 872.040.) It is not necessary to allege evidentiary facts supporting this ultimate fact. The demurrer to the complaint on this ground will be overruled.

Houser next argues that the complaint is uncertain because the complaint alleges that Houser was unhappy with management of the Property but failed to allege any specific incident. As set forth in section 872.230, the reason why a party brings a partition action is not an element of the cause of action. Partition among concurrent interests is, absent limited exceptions, a matter of right. (Code Civ. Proc., § 872.710, subd. (b).) Incidents regarding Houser are not material to the complaint.

“Even as against a special demurrer, a plaintiff is required only to ‘set forth in his complaint the essential facts of his case with reasonable precision and with particularity sufficiently specific to acquaint the defendant of the nature, source, and extent of his cause of action.’ [Citations.] He need not particularize matters ‘presumptively within the knowledge of the demurring’ defendant. [Citation.]” (Smith v. Kern County Land Co. (1958) 51 Cal.2d 205, 209.) The complaint is not uncertain for failure to further particularize any alleged incidents regarding Houser. The demurrer for uncertainty on that ground will be overruled.