Case Number: BC645864 Hearing Date: March 02, 2018 Dept: 47

Rex Glensy v. Philippe Diaz, et al.

MOTION TO JOIN STEPHEN NEMETH AS A NECESSARY PARTY

MOVING PARTY: Plaintiff/Cross-Defendant Rex Glensy, in pro per

RESPONDING PARTY(S): Defendants/Cross-Complainants Philippe Diaz and Sceneries Entertainment Corp.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that Defendant has failed to pay Plaintiff for legal services rendered.

Defendants Philippe Diaz and Sceneries Entertainment Corp. filed a cross-complaint alleging that Plaintiffs represented Defendants and himself and another party to a financing agreement for a film, failing to act in the best interests of Defendants/Cross-Complainants as clients, resulting in a breach of fiduciary duty.

Plaintiff/Cross-Defendant Rex Glensy, in pro per, moves to join Stephen Nemeth as a necessary party.

TENTATIVE RULING:

Plaintiff/Cross-Defendant Rex Glensy’s motion to join Stephen Nemeth as a necessary party to the Cross-Complaint is DENIED.

DISCUSSION

Motion To Join Necessary Party

Plaintiff/Cross-Defendant Rex Glensy, in pro per, moves to join Stephen Nemeth as a necessary party to the Cross-Complaint.

In support of the motion, Stephen Nemeth has file a declaration. He indicates that he is aware of the cross-complaint, that Diaz and Cinema Libre are attempting to defame[1] Nemeth which he “cannot, in good conscience, allow to go unchallenged.” Nemeth Decl., ¶¶ 2, 3. Nemeth also indicates that he is owed substantial amounts of money by Cinema Libre and Diaz for the “Days of Grace” project mentioned in the cross-complaint, and for the transaction where Nemeth acquired the full rights to “Confessions of an Economic Hitman.” Nemeth Decl., ¶ 4. Nemeth indicates that after he relinquished his shares of Cinema Libre as part of the transaction where he acquired the full rights to “Confessions of an Economic Hitman,” he discovered that the facts represented by Diaz upon which Nemeth relied to enter into the transaction with Cinema Libre were untrue. Nemeth Decl., ¶ 4. Nemeth claims that he must be allowed to protect his interests which might be seriously damaged should he not be allowed to defend his interests. Nemeth Decl., ¶ 5.

Quite simply, even assuming Nemeth is a necessary and/or indispensable party, because Nemeth is aware of the instant lawsuit, Nemeth can seek to intervene in this action—whereby he will file his own complaint in intervention—or file his own lawsuit against Philippe Diaz and Sceneries Entertainment Corp., which action will most likely be deemed related to the instant action and, if appropriate, consolidated. All of the arguments presented by Glensy in favor of compelling Cross-Complainants to join Nemeth as party to the Cross-Complaint apply just as equally to Nemeth’s right to intervene in this action, as set forth in CCP § 387(d), under either a mandatory or permissive standard:

(d)

(1) The court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied:

(A) A provision of law confers an unconditional right to intervene.

(B) The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person’s ability to protect that interest, unless that person’s interest is adequately represented by one or more of the existing parties.

(2) The court may, upon timely application, permit a nonparty to intervene in the action or proceeding if the person has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both.

CCP § 387(d).

On the other hand, if the Court compels joinder of Nemeth as a Cross-Defendant to the Cross-Complaint, it is not apparent what causes of action would be asserted against Nemeth in the Cross-Complaint. The Cross-Complaint alleges causes of action against Glensy in his role as attorney for Cross-Complainants. Nemeth, on the other hand, is not alleged to be an attorney, nor did he represent Cross-Complainant’s interest. As such, there is no persuasive reason to compel joinder of Nemeth as a Cross-Defendant to the Cross-Complaint where no cause of action was asserted which affects Nemeth’s interests. The Cross-Complaint does not seek to divest Nemeth of any of his interests. Rather, the Cross-Complaint seeks to hold Glensy liable for damages caused by acting against his client’s Diaz/Cinema Libre’s interests and in his own self-interest and the interests of the other party to the transactions, i.e., Nemeth.

Finally, the failure to join a necessary and indispensable party does not preclude the continuance of this action:

“Failure to join an ‘indispensable party’ is not ‘a jurisdictional defect’ in the fundamental sense; even in the absence of an ‘indispensable’ party, the court still has the power to render a decision as to the parties before it which will stand. It is for reasons of equity and convenience, and not because it is without power to proceed, that the court should not proceed with a case where it determines that an ‘indispensable’ party is absent and cannot be joined.” (Sierra Club, Inc. v. California Coastal Com. (1979) 95 Cal.App.3d 495, 500 [157 Cal. Rptr. 190].) In making the discretionary decision whether to permit such an action to proceed, the trial court must consider, inter alia, “to what extent” a judgment might be prejudicial to the absent party; “the extent to which the prejudice can be lessened or avoided,” “whether a judgment rendered in the [party’s] absence will be adequate,” and whether the plaintiff “will have an adequate remedy if [*1359] the action is dismissed for nonjoinder.” (Code Civ. Proc., § 389, subd. (b), italics added.) Code of Civil Procedure section 389 thus envisions a circumstance where the possibility of some prejudice to an absent party does not mandate dismissal or, as the Department suggests, preclude the court from ordering relief as between properly joined parties.

Sustainability of Parks, Recycling & Wildlife Legal Defense Fund v. County of Solano Dept. of Resource Management (2008) 167 Cal.App.4th 1350, 1358-59 (bold emphasis added).

Accordingly, the motion to join Stephen Nemeth as a necessary party to the Cross-Complaint is DENIED.

IT IS SO ORDERED.

Dated: March 2, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court