Kraus v. Willow Park Public Golf Course

In Kraus v. Willow Park Public Golf Course (1977) 73 Cal.App.3d 354, the court undertook an extensive analysis of the effect of the failure to join an indispensable party to an action. Kraus thoroughly explains nonetheless that "although many cases have so stated, the 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 the 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." (Id. at p. 364.) The court in Kraus bolstered its reasoning by noting that section 389 of the Code of Civil Procedure, dealing with joinder, was amended in 1971 to conform to rule 19 of the Federal Rules of Civil Procedure. The court noted that "since the 1971 amendment to section 389, the California Supreme Court has not ruled on the matter, but, in dicta, the Courts of Appeal have continued to state that the absence of an indispensable party deprives the court of jurisdiction over the subject matter . This is not, however, the correct rule under former section 389 of the Code of Civil Procedure, and it is clearly not the rule under rule 19, Federal Rules of Civil Procedure, and section 389, as amended in 1971." (Id. at p. 365.) In Kraus, the objection for failure to join was raised for the first time on appeal. The court in Kraus noted, and we agree, that "' where a case has been fully tried without objection to the absence of parties and the claim that the absent parties were indispensable is raised for the first time on appeal, the rule's underlying policy considerations of avoiding piecemeal litigation and multiplicity of suits are of little consequence inasmuch as the judicial and litigant resources necessary to the litigation have already been expended.'" ( Kraus v. Willow Park Public Golf Course, supra, 73 Cal.App.3d at p. 369.)