Kopp v. >Coast> >U.> Sch. Dist.



















Filed 3/25/13 Kopp v. Coast U. Sch. Dist. CA2/6











NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS





California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.



IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA



SECOND APPELLATE DISTRICT



DIVISION SIX




>

NICKOLAUS KOPP, Plaintiff and Appellant, v. COAST UNIFIED SCHOOL DISTRICT, Defendant and Respondent.

2d Civil No. B241354 (Super. Ct. No. CV118245) (San Luis Obispo County)

Plaintiff Nickolaus Kopp
appeals the dismissal of his action against defendant
Coast Unified School
District (District) for href="http://www.fearnotlaw.com/">inverse condemnation, damages and injunctive
relief after his lawyer missed a pleading amendment deadline following the
sustaining of a demurrer. We conclude,
among other things, that: 1) the trial
court erred by sustaining a demurrer to Kopp's causes of action on the ground
that Kopp did not join a co-owner as a necessary party, and 2) Kopp's motion to
set aside the dismissal should have been granted because it was based on his
counsel's declaration showing his error in determining a pleading
deadline. We reverse.

FACTS

On January 12, 2011, Kopp filed a claim against the
District (Gov. Code, § 910) alleging that its actions on its property
caused a flood on the property where he resides. The claim was denied.

Kopp's action stated
causes of action for inverse condemnation, nuisance, damages for maintaining a
dangerous condition on the District's property, injunctive and declaratory
relief. Kopp alleged he was "an
owner" of the property where he resides.
He said that the flooding caused by the District "interfered with
his access" to his residence and interfered with "his use and
enjoyment" of the property and that the flooding required "boarding
up his back doors and garage doors in anticipation of future and ongoing
flooding." He sought damages and
injunctive relief against the District to prevent it "from maintaining a
public and private nuisance in the vicinity of Plaintiff's Property."

The District
demurred. It alleged that Kopp owned an
undivided 50 percent interest in the real property. It requested the trial court to take judicial
notice of a title report and tax records showing that Sharon Clayton, as the
heir of Charles Clayton and as a trustee of the Sharon Clayton Living Trust,
owned the remaining portion. It claimed
Clayton was a "necessary" party to the action. The District argued it "will be subject
to a substantial risk of incurring double, multiple and possibly inconsistent
obligations by reason of [Clayton's] ownership interest."

In his opposition, Kopp
claimed: 1) he had "standing to
protect his property and the enjoyment of it from the District's wrongful
conduct," 2) the trial court should not decide the joinder issues at the
demurrer stage because the court lacked adequate information, and 3) it was not
proper to decide a demurrer by relying on a "preliminary title report
through the vehicle of judicial notice."

On December 20, 2011, the trial court sustained the
demurrer and gave Kopp "45 days to amend." In the same href="http://www.fearnotlaw.com/">minute order, the court set the case for
"Judicial Mediation" and scheduled a settlement hearing for January 18, 2012.

On January 18, 2012, the trial court ordered the
parties "to file an updated settlement statement that specifically
addresses the issues the Defendant will have re: easement should the Plaintiff
prevail at trial." On February 1,
the court held a mediation session.

On February 29, 2012, the trial court issued an
order, which stated, "The parties are ordered to show cause on [April 18,
2012] at 9:00 [a.m.] in Dept.
P2 why case should not be dismissed since settlement discussions
still in progress."

On March 13, 2012, the trial court issued an ex
parte order dismissing the action because Kopp did not file an amended
complaint.

On April 5, 2012, Kopp filed a motion to set aside
the dismissal. In his declaration,
Kopp's counsel said he was surprised by the dismissal. He believed the "issues concerning
amendment of the Complaint would be addressed" at the April 18th hearing
the court scheduled in its February 29th order.
He explained the reasons why he believed the 45-day deadline to file an
amended complaint did not apply. He said
this case was "moving towards a settlement." On February
24, 2012, the District's counsel informed him that the District
wanted to inspect Kopp's property on March
1, 2012. Kopp agreed to
this, believing that a settlement agreement was "on the table." Kopp's counsel said he believed the order of
dismissal, which was prepared ex parte by the District, was a mistake because
the court was also involved in the settlement process. "[B]ecause of this Court's mediation, I
have believed that we had a settlement with the school district," which
made filing an amended complaint "unnecessary."

Kopp also declared that
Clayton had signed a "Disclaimer of Interest and Assignment of
Rights" statement that "renders the need to amend the complaint
moot." That document was filed with
the motion. In the assignment of rights
document, Clayton said she "has no interest in pursuing any claims against
[the District]" and she assigned her rights as a co-owner of the property
regarding this action to Kopp.

At the April 18th
hearing, the trial court denied the motion to vacate.

DISCUSSION

>Sustaining a Demurrer for Not Joining a
Co-Owner

Kopp claims: 1) the trial court's ruling on the joinder
issue was premature at the demurrer stage, 2) the District's claim that it
would be subject to a substantial risk of a multiplicity of litigation without
joining Clayton was not derived from the face of the complaint, 3) Clayton's
assignment of rights to Kopp eliminated that risk, and 4) the court erred by
sustaining the demurrer to his action on the ground that he did not join
Clayton as a necessary party. We agree.

The Premature Ruling on the Joinder Issue at the Demurrer Stage

"It is axiomatic
that a demurrer lies only for defects appearing on the face of the
pleadings. More specifically, a
defendant may not make allegations of defect or misjoinder of parties in the
demurrer if the pleadings do not disclose the existence of the matter relied
on; such objection must be taken by plea or answer." (Harboring
Villas Homeowners Assn. v. Superior
Court (1998) 63 Cal.App.4th 426, 429.)

Code of Civil Procedure
section 389, subdivision (a) provides, in relevant part, "A person
. . . shall be joined as a party in the action if (1) in his absence
complete relief cannot be accorded among those already parties or (2) he claims
an interest relating to the subject of the action and is so situated that the
disposition of the action in his absence may (i) as a practical matter impair
or impede his ability to protect that interest or (ii) leave any of the persons
already parties subject to a substantial risk of incurring double, multiple, or
otherwise inconsistent obligations by reason of his claimed interest."

The District's demurrer
pointed out that Clayton was an owner of an undivided half-interest in the
property. The District stated it
"will be subject to a substantial risk of incurring double, multiple and
possibly inconsistent obligations" unless Clayton was joined.

But there was nothing on
the face of the complaint to show there was a substantial risk that Clayton
would be asserting a claim against the District. "'"[S]ubstantial risk" means
more than a theoretical possibility of the absent party's asserting a claim
that would result in multiple liability.
The risk must be substantial as a
practical matter.'" (Harboring
Villas Homeowners Assn. v. Superior
Court, supra, 63 Cal.App.4th at
p. 430, italics added.) Where the
defendant does not present proof of "any actual assertion" of a claim
by the absent party, the demurrer should be overruled and the joinder issue
should be decided in later proceedings.
(Union Carbide >Corp. v. Superior Court (1984) 36 Cal.3d
15, 22, 24.) Here the District's claims
relating to multiple litigation were based on speculation. The record before the court did not show that
Clayton would assert any claim against the District or that she wanted to
intervene. There was also no showing
that she had a conflict of interest with Kopp or that she disapproved of this
litigation. In short, the District did
not meet its burden to show that the joinder issue should be decided at the
pleading stage based on the potential for multiple actions. (Id.
at p. 24.)

Moreover, "as a
practical matter," as it turned out, there was no risk to the
District. In Clayton's "assignment
of rights," she said that: 1) she
did not reside on the property, 2) she had "no interest in pursuing any
claims against [the District]," and 3) she assigned all her rights as a
co-owner regarding this action to Kopp.
This resolved any concerns regarding potential joinder problems. (Countrywide
Home Loans, Inc. v. Superior Court (1999) 69 Cal.App.4th 785, 795-796
[assignment of rights eliminates risk of multiple litigation]; >Greco v. >Oregon> Mut. Fire Ins. Co. (1961) 191
Cal.App.2d 674, 687 [after assignment of rights, the assignee is the only
necessary party].)

Kopp's other objections
to the demurrer were meritorious. The
limited information in the District's demurrer did not provide the trial court
with a factual foundation to weigh the factors required to determine whether a
non-party should be joined. (Code Civ.
Proc., § 389, subds. (a) & (b).)
The District made no showing that this action would prejudice Clayton's
rights. (Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th
758, 857.) The court may award a
co-owner damages against a third party based on the co-owner's percentage
interest in land without prejudicing a co-owner who is not before the court. (Worthington
v. Kaiser Foundation Health Plan, Inc. (1970) 8 Cal.App.3d 435, 445; >Most v. Passman (1937) 21 Cal.App.2d
729, 731-732.) Consequently, the court
could award Kopp "complete relief."
(Countrywide Home Loans, >Inc. v. Superior Court, >supra, 69 Cal.App.4th at p. 794.) Moreover, the District did not show how enjoining
flood water damage to the property would not benefit both co-owners. (Woodson
v. Torgerson (1930) 108 Cal.App. 386, 394.)

But even had the
District made a showing of potential prejudice, "the inability to avoid or
eliminate the prejudice in its entirety does not . . . require a finding that the action should not go
forward." (Quantification Settlement Agreement Cases, supra, 201 Cal.App.4th at p. 857.) The court must also weigh the relevant
factors and decide whether Kopp "will have an adequate remedy if the
action is dismissed for nonjoinder."
(Code Civ. Proc., § 389, subd. (b).) Given the absence of a factual record, and
its inability to weigh those factors, the trial court should not have decided
the joinder issue at the demurrer stage.
(Harboring Villas Homeowners Assn.
v. Superior Court, supra, 63
Cal.App.4th at pp. 429-430.) Where
"'"the relationship of an absent person to the action, and the
practical effects of an adjudication upon him and others, may not be
sufficiently revealed at the pleading stage," it is appropriate to
"defer decision until the action [is] further
advanced . . . ."'" (Ibid.)


Kopp's
Right as a Co-Owner to Protect the Property

The District asserted
that Clayton had to be joined as a party as a co-owner because the action
involved real property. The District's
position would have more weight if this case involved quiet title, partition,
or a claim to divest Clayton of a property interest. But the purpose of this action was to prevent
the District from causing floods on the property owned by Kopp and
Clayton. Moreover, Kopp did not sue
solely in his capacity as an owner. He
also sued because the property was "his residence."

Kopp, as a co-owner and
the resident in possession, has authority to protect this property from third
party nuisances and intrusions without joining his co-owner. (Perkins
v. Chad Development Corp. (1979) 95 Cal.App.3d 645, 650 [one who owns a
joint beneficial interest in land with others may individually act to protect
"the common beneficial interest" from a third party's actions]; >Most v. Passman, supra, 21 Cal.App.2d at pp. 731-732.) As owners of an undivided half-interest, Kopp
and Clayton are classified as "cotenants" of the estate with the
individual right to protect the land from third party torts without having to
join the other co-tenant. (>Wilson v. S.L. Rey, Inc. (1993) 17 Cal.App.4th 234, 242-243; Los Angeles L. Co. v. Los Angeles (1895) 106 Cal.156, 160
["One cotenant can at any time protect
the entire estate from injury or loss without
calling to his aid the assistance of the other cotenants" (italics
added)].) "[O]ne of several
cotenants may sue in ejectment without
joining his cotenants to regain from a trespasser the possession of the
property." (Woodson v. Torgerson, supra,
108 Cal.App.at p. 394, italics added.)
A single cotenant on behalf of the entire estate may "'resist an
intruder, . . . remove an encumbrance, . . . redeem [the
land] from a burden" or oppose "annexation" which "would
subject the property to the burden of municipal taxation." (Morin
v. City Council (1952) 109 Cal.App.2d 268, 271-272.) Because such actions to protect the property
will benefit all with a joint interest in the land, one co‑owner may
proceed to protect the interests of all co-owners. (Ibid.)
Kopp's action to prevent a flood water
intrusion from the District unquestionably protected Clayton's interests in the
land. (Woodson, at p. 394.)

Given the record before
the trial court, it was not in a position to assume that Kopp lacked the
authority to bring this action against the District. "[W]here the cotenant is >acting against third parties, >the cotenant's authority to act on behalf of
other cotenants is presumed." (Dabney
v. Dabney (2002) 104 Cal.App.4th 379, 382, italics added.) This undermines the District's basis for its
demurrer.

A plaintiff may bring an
action to protect an interest in real property without burdensome or
unnecessary joinder requirements. (>D & M Financial Corp. v. City
of Long Beach (2006) 136
Cal.App.4th 165, 175 [mortgagee had standing to pursue inverse condemnation
action without joining the owner]; Chhour
v. Community Redevelopment Agency
(1996) 46 Cal.App.4th 273 [tenant, independent of the owner, could sue for
inverse condemnation]; Stoiber v.
Honeychuck (1980) 101 Cal.App.3d 903, 920 [tenant with right of possession
may sue for nuisance]; People v. Superior
Court (1969) 1 Cal.App.3d 167, 170
["ownership of the land upon which a public nuisance is maintained does
not, of itself, make the owner an indispensable party" in nuisance
abatement suit]; Sherwood v. Ahart
(1917) 35 Cal.App. 84, 87 [action to enjoin defendant's interference with a
right of way on defendant's land may proceed without joining defendant's wife
who is the co-owner].)

Kopp's
Right to Protect His Personal Possessory Interests

Here Kopp's causes of
action also involved damages and
injunctive relief to protect his personal
possessory interests and enjoyment of his residence. Kopp alleged the floods, which the District
caused: 1) "interfered with his
access" to his residence, 2) interfered with his "use and
enjoyment" of the property, 3) required "boarding up his back doors
and garage doors in anticipation of future and ongoing flooding," and 4)
caused water and debris to damage "his residence."

Because these claims
were personal to Kopp, they were consequently independent from Clayton's
interest as an owner. The District's
demurrer conceded that Kopp's
complaint sought "damages personal
to plaintiff" and for "loss of use and enjoyment of the property." (Italics added.) It did not show how Clayton's joinder was
necessary to litigate such personal claims.

"'An action may be
brought by any person whose
. . . personal enjoyment is lessened by a nuisance.'" (Wilshire
Westwood Associates v. Atlantic Richfield Co. (1993) 20 Cal.App.4th 732,
745-746, italics added; see also Stoiber
v. Honeychuck (1980) 101 Cal.App.3d 903, 920 [tenant's possessory interest
alone allowed her to sue owner for nuisance, which interfered with her
"use and enjoyment of the premises"].) Kopp alleged the land was his residence and
he had the right to protect that possessory interest against a flood water
invasion caused by an outside party.
That stated a cause of action. (>Ibid.; Tristam v. Marques (1931) 117 Cal.App. 393, 397 ["A party may
rely upon possession against a mere trespasser"].) The court could provide injunctive relief and
damages to protect these personal possessory rights independent of whether
Clayton was joined as a party. (>Wilshire Westwood Associates, at pp.
745-746; Stoiber, at p. 920; >Worthington v. Kaiser Foundation >Health Plan, Inc., supra, 8 Cal.App.3d
at p. 445.) Moreover, "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." (Kraus
v. Willow Park Public Golf Course (1977) 73 Cal.App.3d 354, 364.)

The trial court's
decision left Kopp no "adequate remedy" to protect his
interests. (Code Civ. Proc., § 389,
subd. (b).) The "courts should 'be
careful to avoid converting [section 389 from] a discretionary power or rule of
fairness . . . into an arbitrary and burdensome requirement which may
thwart rather than accomplish justice.'"
(Countrywide Home >Loans, Inc. v. Superior Court, supra,
69 Cal.App.4th at p. 793.)

The
Motion to Vacate the Dismissal

Kopp claims the trial
court erred by denying his motion to vacate the dismissal. We agree.

Kopp's motion to vacate
was based on the declaration of his attorney.
His counsel declared that he "believed that the issues concerning
amendment of the Complaint would be addressed on [the] Noticed hearing of the
OSC" scheduled for April 18, 2012.
Consequently, he did not file an amended complaint prior to the court's
March dismissal order. He believed the
case was proceeding to settlement and there was no need to amend. He said he was surprised the District would
request an ex parte dismissal order in the middle of the settlement process.

The District opposed the
motion contending that it did not grant Kopp's counsel an extension of time to
plead and he did not request one. It
argued that Kopp was not entitled to relief based on his attorney's error
relating to the filing deadline.

But where an attorney's
declaration shows "his or her mistake, inadvertence, surprise, or
neglect," the trial court should "vacate any . . .
dismissal entered against his or her client" as a result thereof. (Hu v.
Fang (2002) 104 Cal.App.4th 61, 64.)
The requirement that courts must grant this relief is based on a strong
public policy. (Ibid.) Setting aside such
dismissals is mandatory in order "'to relieve the innocent client of the
burden of the attorney's fault, to impose the burden on the erring attorney,
and to avoid precipitating more litigation in the form of malpractice
suits.'" (Ibid.)

Kopp's counsel made an
erroneous assumption about the pleading deadline. But his counsel's mistake or
omissions should not subject Kopp to a forfeiture of his rights. (Hu v.
Fang, supra, 104 Cal.App.4th at
p. 64.) Moreover, Clayton's
assignment of rights shows the District's claims about a joinder problem were
unwarranted.

The judgment is
reversed. The dismissal and the order
sustaining the demurrer are vacated, and we remand the matter to the trial
court with directions to issue an order overruling the demurrer. Costs on appeal are awarded in favor of the
appellant.

NOT TO BE PUBLISHED.









GILBERT,
P.J.





We concur:







YEGAN, J.







PERREN, J.





Jac
A. Crawford, Judge



Superior
Court County of San Luis Obispo



______________________________





William S. Walter for
Plaintiff and Appellant.



Hall, Hieatt &
Connely, LLP, Clayton U. Hall, Molly E. Thurmond, Stephanie Ann Bowen for
Defendant and Respondent.