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The Rules and Pitfalls of Joinder and Intervention
(Formerly "May We Join You")

L.A. Lawyer Magazine
December 1999

By Ira M. Friedman and Abby Friedman

Every litigator needs to know how to use and defend against these procedures.

Joinder and intervention are procedures that result in the expansion of a lawsuit to include parties other than the original plaintiff and defendant. Those who are joined or intervene in a suit must have interests that are affected by the litigation or have a right to relief that arises from the same transaction or common questions of law or fact. Plaintiffs and defendants may use joinder to add a person to the lawsuit. Non-parties, in turn, may use intervention to become a party to the action.(1)

Joinder is either compulsory or permissive.(2) It is compulsory if the court cannot give complete relief unless the parties are joined, if the judgment might prejudice the rights of the non-joined parties, or if other parties would be exposed to the risk of liability if the parties are not joined.(3) In short, a party must be joined when the court cannot render a fair adjudication without that party. For example, if family members have an undetermined interest in the same fund, the judgment obtained by any one party for part of the fund would necessarily determine the amount remaining available for the others, so all family members with an interest in the fund need to be part of the judgment.(4) Another reason for joinder would be to protect one party against what would otherwise be a substantial risk of multiple liability if another party were to remain absent.(5)

  Joinder is permissive when the right to relief arises from the same transaction or series of transactions or when there is a common question of law or fact.(6) Such would be the case, for example, if several plaintiffs, all investors in a piece of real estate, sue the seller.(7) Another example is a personal injury case in which a passenger and driver in one vehicle join as plaintiffs against the driver of another vehicle; the common question is the negligence of the defendant.(8)

Joinder is available to plaintiffs and defendants in three ways. First, plaintiffs can join parties by naming them as defendants. Second, if the plaintiffs fail to join a party, the defendants can move for an order compelling joinder of the party. Joinder may be challenged by demurrer or affirmative defense. If the demurrer is sustained without leave to amend, the party is released from the litigation. Thus, a demurrer is a short cut to the decision of whether a party will be a participant in the suit. However, the general policy of the courts seems to be to overrule demurrers or to grant leave to amend and let a matter proceed to trial on the merits. The assertion of an affirmative defense may be used to reduce whatever damages the joined party may owe. Third, defendants may bring a motion to compel joinder. Which of the three methods is best is dependent on the facts of the case.

For example, when a litigant is seeking to join a third party other than a pension plan, a motion for joinder pursuant to Family Code Section 1253 or to Code of Civil Procedure Section 708.220 must be filed, and a proposed compliant must be filed along with the supporting declarations and memorandum of points and authorities.(9) The complaint must state facts sufficient to constitute a cause of action recognized under California law. (10) For example, the complaint may allege fraud,(11) fraudulent conveyance, (12) constructive trust, (13) or reformation of deeds,(14) to name a few possibilities. If the complaint simply parrots the language of the joinder statues,(15) it will not survive a demurrer or motion to strike.

Care also must be taken with the declaration, which cannot be from the moving party's attorney unless the attorney is a percipient witness. Attorneys should know that by asserting that the declaration is based on personal knowledge, they may thereby lose work produce protection and attorney-client privilege. (16) A limited exception may be an attorney's declaration authenticating certain documents obtained through discovery.(17)

Additionally, the declaration must be from individuals who have firsthand knowledge of the facts; otherwise, the declaration is incompetent.(18) To be competent, any declaration must be based on personal knowledge. Sometimes, especially in family law matters, the party seeking joinder has only limited factual information with which to support the motion, making the party's declaration of little or no value. In these instances, the declaration needs admissible supporting information or documents obtained through discovery. This evidence can be lodged with the court. (19)

Opposing Joinder

As with any other type of motion, opposition may be filed to a motion for joinder. The opposition must be filed at least five court days before the hearing date, with reply papers filed two court days before the hearing.(20) The party's answer to the complaint for joinder challenges the factual allegations in the complaint, either by denying the allegations or asserting the affirmative defense, or denying some allegations and affirmatively defending others.(21) The most common affirmative defense is the statute of limitations.(22) When asserting the statute of limitations defense, the exact relevant code section (relating to fraud or mistake(23) or breach of written contract,(24) for instance) must be cited.

Instead of an answer, the joinded party may file a demurrer by itself or coupled with a motion to strike. The hearing will be in the court where the action is pending, on that court's law and motion calendar. Any ground for objection by a demurrer must appear on the face of the complaint or arise from any matter of which the court must or may take judicial notice.(25) A demurrer is the "so what?" defense, arguing that even if the horrendous things alleged in the complaint are true, the allegations are not actionable in California as a cause of action for which the plaintiff can be compensated by the moving party.

A declaration should not be filed with the demurrer or motion to strike, because no declaration will be considered. The use of a declaration would mean that the court is considering allegations outside the four corners of the complaint. When any ground for objection appears on the face of the complaint, the objection may be taken by a demurrer.(26) When any ground for objection does not appear on the face of a compliant, the objection may be taken by answer. (27)

On a motion to strike, the court may strike any irrelevant, false, or improper matter or strike all or any part of the pleading not drawn in conformity with the laws of the state, a court rule, or an order of the court.(28) The grounds for a motion to strike therefore should appear on the face of the challenged pleading,(29) which limits the motion's use. A motion to strike is appropriate, for example, when punitive damages are requested for an allegation of a breach of written contract, because in such a case they are not allowed. In another context, a motion to strike can be made requesting that the court disregard portions or all of the declaration because the statements in the declaration contain material that can be objected to on various evidentiary bases.(30) Declarations in favor or in opposition to the motion to strike are not filed, because the motion to strike is decided strictly on the basis of whether the material requested to be stricken is objectionable for evidentiary reasons.

A motion to stay or dismiss is usually made on the ground of inconvenient forum.(31) A motion to dismiss must be supported with a declaration and memorandum of points and authorities.(32) A motion to stay differs from a demurrer in that extrinsic evidence is admissible to support the motion in the form of a declaration of evidentiary facts. If the court finds that in the interest of justice an action filed in California should be adjudicated elsewhere, it may stay or dismiss the action.(33)

If the opposition is not successful and the motion for joinder is granted, the court will require an order granting joinder and directing the clerk to issue a summons on joinder for the third party who has been joined. Both the summons and complaint in joinder must then be served on the third party. The joined party is subject to appropriate discovery and participates in the trial. The satisfaction of having the motion for joinder granted will be short-lived, however, if the court dismisses the complaint or sustains the demurrer without leave to amend. In both instances, the third party vanishes.

If the party proposed for joinder cannot be joined (for reasons that may include the statute of limitation and failure to locate the party), the court must weight the circumstances and decide whether to proceed,(34) considering such factors as the extent to which the judgment may prejudice the absent party, whether any such prejudice can be lessened by protective terms in the judgment, whether a judgment entered without the proposed party will provide an adequate remedy to the parties to the litigation, and whether the plaintiff will have another remedy elsewhere.(35)

Joinder in Family Law

In family law, joinder may arise in custody disputes, property disputes, enforcement of orders or judgments, and pension or retirement plans.(36) Joinder may arise in a custody dispute when a parent seeks to join a person who has or claims custody or physical control of any minor child of the marriage.(37) Alternatively, the person having or claiming custody of the child may seek to be joined.(38) The third party, generally a grandparent, may seek physical custody, often when a grandparent has had de facto custody of the child or when a grandparent seeks custody in the stead of a deceased parent. In a custody and visitation proceeding, the court may grant visitation to a grandparent of a minor child, provided the court determines such visitation is in the child's best interest.(39) A grandparent, however, must first be joined in the action.(40) It should be noted that joinder in a pending dissolution proceeding is not the exclusive procedure for a grandparent seeking rights for visitation and custody. The issue may also be raised by a grandparent's independent petition to the court.(41)

  Joinder in property disputes often concerns a closely held business. If the petitioner and respondent own no more than stock or a partnership interest in the entity instead of a direct interest in the assets held by the business, the business should not be joined. For example, if a husband and wife own stock in a corporation and the corporation owns real estate, neither the husband nor the wife own any direct interest in the real estate.(42) The spouses' respective interests in the corporation are valued, but joinder is not necessary either to value or to distribute the interests. Whether a party is an individual, partnership (limited or general), or corporation makes no difference in the application of joinder, and whether or not a party has been joined, the available remedies for discovery noncompliance are the same.(43) All practitioners should note that attorney's fees and sanctions may be imposed against the spouse who controls a corporate entity.

In family law cases, there is a common misconception that once the trial is over and a dissolution judgment has been entered dividing the property and fixing support, it is too late to file a motion for joinder. In fact, joinder is an excellent tool for collecting unpaid judgments or orders. Joinder is especially effective if the judgment debtor transfers property for less than adequate consideration to a third party. Many times the transferee is a relative of the judgment debtor. The procedure for joinder is the same after judgment as it is before judgment. Once the complaint in joinder is proven, the court may make the same orders against the joinder third party as against the judgment debtor. Thus, the full panoply of orders available for enforcement of a judgment is also available against the third party.(44)

It is not necessary to file a formal motion for joinder of an employee pension plan. The California Rules of Court provide for joinder of an employee pension plan in a simplified proceeding.(45) The joinder is accomplished by filing Judicial Council forms 1291.15 (Request for Joinder of Employee Pension Benefit Plan and Order), 1291.35 (Pleading on Joinder-Employee Benefit Plan), and 1291.40 (Summons Joinder). The clerk will issue the summons on joinder of employee pension plan (Judicial Counsel form 1291.40), which can then be served on the administrator of the pension plan along with the Judicial Counsel form 1291.25 (Notice of Appearance and Response of Employee Pension Benefit Plan).

Attorneys seeking joinder need to remember that the mere joining of the third party does not give the court the jurisdiction to make orders affecting that joined party. The third party, like any other civil litigant, is entitled to a trial on the merits, and as in other civil actions, the plaintiff must prove its case by a preponderance of evidence.(46) Once the third party is served with the summons and complaint, the party has 30 days after serve to file a responsive pleading.(47) The responsive pleading may be an answer,(48) a demurrer,(49) a motion to strike,(50) or a motion to dismiss. Only when the case is proved against the joined party will that party be subject to court orders.

Intervention

When joinder is not ordered, intervention allows a third party to join with the plaintiff or defendant or demand an interest adverse to both parties. Intervention is never required of the intervenor, even when the pending litigation directly affects a potential intervenor's interest. Additionally, a party may be barred from relitigating issues already decided in a litigation in which the party had the opportunity to intervene, so potential parties to a suit need to be alert to the opportunity for intervention.

There is a right to intervene in certain circumstances. For example, any person having a legal or equitable interest in property that is the subject of a pending condemnation action may intervene as a defendant.(51) Similarly, a shareholder may intervene in involuntary dissolution proceeding against a corporation.(52) A creditor may intervene in actions of the corporation against a shareholder to enforce a subscription agreement.(53) Finally, in class actions, any member may appear through counsel. This right is granted under the Consumer Legal Remedies Act.(54) Thus, assuming the proper procedure is followed, the court must allow intervention in these cases.

On the other hand, no right to intervene exists if the court finds that a nonparty's interests are being adequately represented by one or more of the existing parties to the litigation. (55) The party seeking to intervene must have a direct and immediate interest in the outcome of the litigation.(56) The party must stand to gain or lose by direct operation of the judgment, although it need not have a pecuniary interest in the dispute.(57) The third party need not show that its interest will inevitably be affected by the litigation. Intervention will be allowed if there is a substantial probability of the effects of the litigation on the third party's interests.(58) Whether an interest is considered substantial or direct is determined based upon the facts of each case. If the court concludes that the third party's interest is not substantial, intervention may be denied. However, the court generally construes facts liberally in favor of intervention.

Intervention can occur in five instances:

Subrogation. When an insurer has paid benefits for losses caused by a third party, the carrier has a direct interest in the litigation and may intervene in the action.(59) The carrier's direct interest is pecuniary, which is a valid concern.

Joint Tortfeasor. One who has entered into a good faith settlement and was dismissed from the action may thereafter intervene to pursue a declaratory relief action for equitable indemnity against the non-settling joint tortfeasor.(60)

Class Action. Members of a class may intervene in an action to which the class is a party.(61) Each member is entitled to a share of the recovery and therefore has a direct interest in the outcome.

Judgment Creditor. Sometimes a creditor will file a judgment lien against the anticipated proceeds of an expected judgment in an action.(62) However, filing the lien does not insure that the liened party will pursue the litigation to its end. To protect the judgment creditor's interest, the judgment creditor may intervene in the action.(63)

Failure to Prosecute. In cases where there may not be sufficient cause for intervention, the fact that a party fails to prosecute or defend the action may be grounds for intervention to protect the rights and interests of the third party.(64) For example, if officers and directors fail to exercise good faith in defending an action against corporation, a shareholder may be permitted to intervene.

NEW ISSUES OR NO NEW ISSUES

In intervention, the existing issues in a case may not be expanded.(65) However, if there is a right to intervene, a new issue may be raised as it applies to the intervenor.

Intervention may be sought by either ex-parte application or noticed motion.

As with joinder, a copy of the proposed complaint in intervention must be attached to the application.(66) The complaint must set forth the grounds upon which the intervention rests.(67) If a party has not yet appeared in the action, the complaint in intervention must be served in the same manner as any first pleading.(68) For parties who have appeared, it is sufficient to serve the complaint on their attorneys of record.(69)

Also, as with a compliant in joinder, the complaint in intervention must comply with the rules of pleadings. An intervention is subject to the same responsive pleadings as a joinder.

If intervention is sought by noticed motion, the party opposing the intervention may oppose the motion. However, if a noticed motion was not utilized, the first opportunity to object to the intervention is by demurrer or motion to strike the complaint in intervention. If an objection is not raised, it is deemed waived.(70) This dismissal of the plaintiff's actions will not affect the intervenor, who has an independent interest in the litigation. The intervenor has the same rights as any other party, such as to object to the pleadings and to demand a jury trial.(71)

Joinder and intervention are two very useful procedures. Either or both should be considered whenever any third party's rights or property is affected by ongoing litigation - and in the contentious terrain of litigation, including family law, the intricacies of joinder and intervention must be well known to the practitioner.

Also see attached: Model Complaint in Joinder

1. CODE CIV. PROC. 387.

2. CODE CIV. PROC. 389.

3. CODE CIV. PROC. 389(a).

4. Bank of California v. Superior Court of San Francisco, 16 Cal. 2d 516, 521; 106 P.2d 879, 883 (1940).

5. CODE CIV. PROC. 389(a)2ii.

6. CODE CIV. PROC. 378, 379.

7. Aldrich v. Transcontinental Land & Water Co., 131 Cal. App. 2d 788; 281 Cal. Rptr. 362 (1955).

8. Anaya v. Superior Court of San Francisco, 160 Cal. App. 3d 228, 233; 206 Cal. Rptr. 520, 523 (1984).

9. CAL. R. CT. 312, 313.

10. CODE CIV. PROC. 425.10.

11. CIV. CODE 1710.

12. CIV. CODE 1227, 3439.04, 2439.05.

13. CIV. CODE 2223, 2224.

14. CIV. CODE 3399-3402.

15. CODE CIV. PROC. 378, 379, 389, 389.5.

16. Niklas v. Walzer, 211 Cal. App. 3d 28, 258 Cal. Rptr. 921 (1989).

17. EVID. CODE 1400.

18. EVID. CODE 702.

19. CAL. R. CT. 319(b).

20. CAL. R. CT. 317(a); CODE CIV. PROC. 1004(b).

21. CODE CIV. PROC. 431.30.

22. CODE CIV. PROC. 335 et seq.; CODE CIV. PROC. 431.30. There are numerous other affirmative defenses, including accord and satisfaction, CIV. CODE 1521 et seq.; another action pending; collateral estoppel; discharge in bankruptcy; excuse; failure to state a cause of action, CODE CIV. PROC. 338; justification laches; misjoinder or nonjoinder of parties; mitigation of damages; negligence; novation, CIV. CODE 1530; offset; ratification; rescission, CIV. CODE 1533; setoff; statute of frauds, see generally CIV. CODE 1624; uncertainty; unclean hands; waiver.

23. CODE CIV. PROC. 338.

24. CODE CIV. PROC. 337.

25. CODE CIV. PROC. 430.30. When the moving party wants the court to judicially notice documents, it is a good idea to attach copies as exhibits to a separate pleading titled "Request for Judicial Notice" pursuant to the relevant code sections. EVID. CODE 451, 452.

26. CODE CIV. PROC. 430.30(a).

27. CODE CIV. PROC. 430.30(b).

28. CODE CIV. PROC. 436.

29. CODE CIV. PROC. 436(a).

30. L.A. SUP. CT. LOCAL R. 9.6(d).

31. CODE CIV. PROC. 410.30, 418.10(2).

32. CAL. R. CT. 313.

33. CODE CIV. PROC. 410.30(a).

34. CODE CIV. PROC. 389(b); Koster v. County of San Joaquin, 47 Cal. App. 4th 29, 44, 54 Cal. Rptr. 565, 574 (1996).

35. CODE CIV. PROC. 389(b).

36. FAM. CODE 3410; CODE CIV. PROC. 708.220; FAM. CODE 1256.

37. CAL. R. CT. 1252(a).

38. CAL. R. CT. 1252(b).

39. FAM. CODE 3021, 3103(a).

40. CAL. R. CT. 1252(b), 1254(a).

41. FAM. CODE 3104.

42. Schnabel v. Schnabel, 30 Cal. App. 4th 737; 36 Cal. Rptr. 2d 682 (1994); see also Schnabel v. Superior Court, 5 Cal. App. 4th 704, 21 Cal. Rptr. 2d 200 (1993).

43. CODE CIV. PROC. 2023(c).

44. CODE CIV. PROC. 680.010 et seq.

45. CAL. R. CT. 1253.

46. EVID. CODE 115.

47. CODE CIV. PROC. 412.20.

48. CODE CIV. PROC. 431.20.

49. CODE CIV. PROC. 431.10, 430.30, 430.70.

50. CODE CIV. PROC. 435.

51. CODE CIV. PROC. 1250.230.

52. CORP. CODE 1800(C).

53. CORP. CODE 414.

54. CIV. CODE 1781(e)(3).

55. CODE CIV. PROC. 387(b).

56. Fireman's Fund Ins. v. Gerlach, 56 Cal. App. 3d 299, 303-05, 128 Cal. Rptr. 396, 398-99 (1976).

57. Simpson Redwood Co. v. State, 196 Cal. App. 3d 1192, 242 Cal. Rptr. 447 (1987).

58. Timberidge Enters, Inc., v. Santa Rosa, 86 Cal. App. 3d 873, 150 Cal. Rptr. 606 (1978).

59. Deutschmann v. Sears, Roebuck & Co., 132 Cal. App. 3d 912; 183 Cal. Rptr. 573 (1982).

60. Bolamperti v. Larco Manufacturing, 164 Cal. App. 3d 249; 210 Cal. Rptr. 155 (1985).

61. Mann v. Superior Court of Los Angeles County, 53 Cal. App. 2d 171; 127 P.2d 970 (1942).

62. CODE CIV. PROC. 708.410.

63. CODE CIV. PROC. 708.430.

64. Continental Vinyl Products v. Mead Corp., 27 Cal. App. 3d 543; 103 Cal. Rptr. 806 (1972).

65. Fireman's Fund Insurance Co. v. Gerlach, 56 Cal. App. 3d 299; 128 Cal. Rptr. 396 (1976); Kuperstein v. Superior Court of San Diego, 204 Cal. App. 3d 598; 251 Cal. Rptr. 385 (1988).

66. Adoption of Lenn E., 182 Cal. App. 3d 210; 227 Cal. Rptr. 63 (1986).

67. CODE CIV. PROC. 387.

68. CODE CIV. PROC. 415.10 et seq.

69. CODE CIV. PROC. 387(a).

70. Blume v. Waxman, 48 Cal. App. 2d 646; 120 P.2d 509 (1941).

71. Deutschmann v. Sears Roebuck & Co., 132 Cal. App. 3d 912; 183 Cal. Rptr. 573 (1982).

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