A Nonparty Does Not Have to be Joined as A Party in A Divorce Proceeding for the Sole Purpose of a Temporary Restraining Order to Issue Against It

Civil Code section 4359 provides for the issuance of a temporary restraining order against a nonparty without the necessity of joining the nonparty to maintain the status quo in a divorce proceeding.

Husband and Wife separated in 1991. Wife filed for divorce. Discovery in this matter has been complicated, with numerous opinions previously issued. In this specific dispute, the community was a minor shareholder - thirty percent - of a close corporation, Orange Container, Inc., with the interest held in Husband's name. Wife sought to join Orange Container as a party in the divorce action. Wife contended that it was necessary to join Orange Container so that she could pursue discovery as needed, and to obtain a restraining order to protect her portion of the community shareholder interest. The trial court denied her motion and she filed the present writ that is at issue.

The court rejects the first reason as moot because the court already ordered Husband and Orange Container to produce the corporate records. The remaining issues is if Wife's request for the restraining order sufficient to warrant joiner of Orange Container. The Civil Code, section 4359, provides that a party can seek and may be granted injunctive relief against a non-party without joining the non-party. The purpose of Section 4359 is to preserve the status quo when a divorce case is pending.

In the present case Wife wanted just that - to preserve her community property interest that she felt was otherwise at risk. She stated that but for a restraining order, Orange Container could transfer or jeopardize her access to the community shareholder interest. The same law firm represented Husband and Orange Container, and the trial court record shows a unity of interest between the two. Wife's concerns were seemingly justified, as the court noted that it even appeared that Orange Container was "siding" with Husband. Wife's attempts at getting access to the corporate records were impeded by both Husband and Orange Container.  However she did not seek injunctive relief under section 4359, but instead sought to first join Orange Container so she could then seek injunctive relief. Joinder was proper at the time she initially sought it because she did so to access corporate records in pursuit of discovery. At that time she did not yet have access to the records. Circumstances changed, and she then acquired access to the records. At that time after the change in circumstances, joinder would have been solely for the injunction, not to obtain discovery. It is not proper to say the trial court erred in denying the joinder motion at that time. However at the time of the appeal decision, circumstances had changed. Thus the Court of Appeal thus ordered the trial court to vacate its order that denied the joinder, and to rehear the joinder motion.

Schnabel v. Superior Court (1993) 21 Cal.App.4th 548