Judge: Bruce G. Iwasaki, Case: 23STCV16883, Date: 2024-03-26 Tentative Ruling
Case Number: 23STCV16883 Hearing Date: March 26, 2024 Dept: 58
Judge Bruce G. Iwasaki
Hearing Date: March 26,
2024
Case Name: Walker v. Walker
Case No.: 23STCV16883
Matter: Motion for Judgment on
the Pleadings
Moving Party: Plaintiff
Sienna Rae Walker
Responding Party: Defendants Chanel Walker and
Richard Walker
Tentative Ruling: The motion for judgment on the pleadings for
partition by sale is granted.
On July 19, 2023, Sienna Rae Walker
(Plaintiff) filed her Complaint against Defendants Chanel Walker (Chanel) and
Richard A. Walker (Richard) (jointly, Defendants). Plaintiff’s Complaint
alleges a single cause of action for Partition related to the disputed
ownership of the real property comprising of two single family residences and
one commercial property (Properties).
On September 27, 2023, Defendants
filed a Cross-Complaint, alleging two causes of action for Partition and
Accounting related to the disputed ownership of the Properties.
Plaintiff now moves for judgment on
the pleadings of her Complaint on her claim for partition; Plaintiff also seeks
the appointment of referee to
effectuate the partition. Defendants oppose the motion.
The
motion for judgment on the pleadings is granted on the Complaint for partition.
LEGAL STANDARD
“[A] motion for judgment on
the pleadings is the functional equivalent of a general demurrer.... Indeed,
the only significant difference between the two motions is
in their timing.” (People v. $20,000 U.S. Currency (1991) 235
Cal.App.3d 682, 691.)
A demurrer for sufficiency tests
whether the complaint states a cause of action. (Hahn v. Mirda (2007)
147 Cal.App.4th 740, 747.) When considering demurrers, courts read the
allegations liberally and in context. The defects must be apparent on the face
of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins.
Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone
and not the evidence or other extrinsic matters. Therefore, it lies only where
the defects appear on the face of the pleading or are judicially noticed. (Code
Civ. Proc., §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only
allege ultimate facts sufficient to apprise the defendant of the factual basis
for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d
714, 721.) A “demurrer does not, however, admit contentions, deductions or
conclusions of fact or law alleged in the pleading, or the construction of
instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v.
Petersen (1964) 226 Cal.App.2d 725, 732 [internal citations omitted].)
DISCUSSION
Plaintiff now moves for judgment on
the pleadings of her Complaint on her claim for partition with regard to two
single-family residence and one commercial property: (1.) a single family
residence located at 5 Flying Mane Ln, Rolling Hills, CA 90274 (Flying Mane
Property); (2.) a single family residence located at located at 72 Saddleback
Rd, Rolling Hills, CA 90274 (Saddleback Property); and (3.) a commercial
property located at 125 Victoria St., Carson, CA 90746 (Victoria Property)
(collectively, Properties). Plaintiff also seeks the appointment of referee to effectuate the partition.
“ ‘[P]artition’ is ‘the procedure for
segregating and terminating common interests in the same parcel of property.’ ”
(14859 Moorpark Homeowner's Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1404-1405.) It is a “ ‘
“remedy much favored by the law. The original purpose of partition was to
permit cotenants to avoid the inconvenience and dissension arising from sharing
joint possession of land. An additional reason to favor partition is the policy
of facilitating transmission of title, thereby avoiding unreasonable restraints
on the use and enjoyment of property.” ’ ” (Cummings v. Dessel (2017) 13
Cal.App.5th 589, 596.)
The governing statute for partition
is Code of Civil Procedure section 872.720. Subdivision (a) of this statute declares
that “[i]f the court finds that the plaintiff is entitled to partition, it
shall make an interlocutory judgment that determines the interests of the
parties in the property and orders the partition of the property.” (Code Civ.
Proc., § 872.720, subd. (a).) The order of partition “shall order that the
property be divided among the parties in accordance with their interests as
determined in the interlocutory judgment.” (Code Civ. Proc., § 872.810.)
Section 872.720, subdivision (b), allows the court to issue sequential
interlocutory judgments for original concurrent and successive owners if the
court determines that it “is impracticable or highly inconvenient to make a
single interlocutory judgment that determines, in the first instance, the
interest of all the parties in the property.” (Code Civ. Proc., § 872.720,
subd. (b).)
When the trial court “determines
the interests of the parties in the property and orders the partition of the
property,” it shall decide the manner of partition “unless [this] is to be
later determined.” (Code Civ. Proc., § 872.720, subd. (a).) “The manner of
partition may be ‘in kind’—i.e., physical division of the property [citation]
according to the parties’ interests as determined in the interlocutory
judgment. [Citations.] Alternatively, if the parties agree or the court
concludes it ‘would be more equitable,’ the court may order the property sold
and the proceeds divided among the parties.” (Cummings, supra, 13
Cal.App.5th at p. 597; Code Civ. Proc., § 872.820.)
An interlocutory judgment
in a partition action is to include two elements: a determination of the parties’
interests in the property and an order granting the partition.
(Code Civ. Proc., § 872.720, subd. (a).) Additionally, the manner of
partition—i.e., a physical division or sale of the property—is to be decided
when or after the parties’ ownership interests are determined, but not before.
(Ibid; Emeric
v. Alvarado (1884) 64 Cal. 529, 609-612, [under predecessor statutes to §
872.720, trial courts must determine parties’ interests before ordering
partition].)
Here,
Plaintiff argues the pleadings – the Complaint, the Answer to the Complaint,
and Defendants’ Cross-Complaint – all allege and admit all of the facts
necessary to enter an interlocutory judgment of partition. Specifically, all the
pleadings of the parties admit that: (1.) Plaintiff and Chanel are each
one-half (1/2) owners of the Flying Mane Property, (2.) Plaintiff and Chanel
are each one-half (1/2) owners of the Saddleback Property; and (3.) Defendants
and Plaintiff are each one-third (1/3) owners of the Victoria Property. (Pl.’s RJN
1-4 [Compl., ¶¶ 5-7; Answer, ¶¶ 5-7; XC ¶¶ 13-15; see also Answer to XC, ¶¶13-15].)
In
opposition, Defendants point to allegations in their own Cross-Complaint that
Defendant/Cross-Complainant Richard is the true owner of the Properties and he
put his daughters, Plaintiff and Channel, on title based on his trust that his
daughters would not force him to sell the Properties for their own personal
financial benefit or force his family out of their own homes. (XC ¶ 1.) The
Cross-Complaint then alleges that Plaintiff filed her Complaint without any
discussion with Defendants. (XC ¶ 16.)
However,
notwithstanding these allegations, there is no dispute on the parties’
ownership interests in the Properties. (Pl.’s RJN 1-4 [Compl., ¶¶ 5-7; Answer,
¶¶ 5-7; XC ¶¶ 13-15; see also Answer to XC, ¶¶13-15].)
Defendants also argue that Plaintiff
does not address any of its defenses except the defense of waiver. Specifically,
as to waiver, Defendants reference their Fourth Affirmative Defense of waiver.
Section
872.710, subdivision (b) provides, in relevant part: “[P]artition as to
concurrent interests in the property shall be as of right unless barred by a
valid waiver.” The statute, therefore, provides that the only equitable defense
relevant to a concurrent landowner's right to partition is waiver. (See Orien
v. Lutz (2017) 16 Cal.App.5th 957, 962 [“ ‘A co-owner of property has an
absolute right to partition unless barred by a valid waiver’ ”].)
Although Plaintiff acknowledges
that waiver may bar partition, both the moving papers and reply correctly note
that Defendants’ defense of waiver is insufficiently pled. Here, the Answer
alleges “that Plaintiff’s claims are barred by the doctrines of waiver,
acquiescence, and/or consent.” (Answer ¶
4; see e.g., Westly v. California Public Employees' Retirement System Bd. of
Administration (2003) 105 Cal.App.4th 1095, 1118.) Thus, at minimum, Defendants
would need to amend their answer to sufficiently plead waiver and overcome the
motion for judgment on the pleadings.
Defendants also argue that they
pled an affirmative defense of fraud. (Opp., 8:1-6; Answer ¶ 14.) Although not alleged,
Defendants argue in opposition that “Plaintiff has defrauded her family by
filing the instant lawsuit as alleged in the Answer and Cross-Complaint.”
(Opp., 8:2-3.) This defense – like the waiver defense – is inadequately pled.
Further, the defense also appears to run afoul of the litigation privilege set
forth in Civil Code section 47, subdivision (b).
Defendants
also argue principles of fairness preclude a motion for judgment on the pleadings
the partition cause of action. Defendants contend that Plaintiff is taking
advantage of her family by forcing the sale of their Properties “even though she
was on title in name only but made no payments for her interest, upkeep,
collecting rent, taxes or other things an owner is required to do.” (Opp.,
8:3-6.)
In support of this fairness
argument, Defendant cites American Medical International, Inc. v. Feller
(1976) 59 Cal.App.3d 1008. In American Medical International, Inc. v. Feller, the
court stated: “In addition to the limitation on the right of partition derived from
express and implied waiver by agreement, there is an even wider and more
general limitation. This limitation subjects the right of partition to the
‘requirement of fairness.’ ”
This decision, however, does not
address section 872.710, which was enacted the same year AMI was decided. Rather, AMI was decided under the former statute, section 752, which did not provide for an absolute right of
partition. (American
Medical International, Inc. v. Feller, supra, 59 Cal.App.3d at p. 1013 [quoting former section 752, which provided that “ ‘[when] several
cotenants own real property ... an action may be brought by one or more of such
persons, ... for a partition thereof according to the respective rights of the
persons interested therein”].) Accordingly, American Medical International, Inc.
v. Feller does not address section 872.710 and therefore
offers little guidance here.
Based on
the foregoing, there is no dispute over the ownership interests of the parties.
Nor is there a valid defense to the partition claim alleged.
Curiously, notwithstanding
Defendants’ opposition, Defendants’ Cross-Complaint also seeks partition of the
three Properties by sale. Specifically, the verified Cross-Complaint alleges:
“Cross-Complainants request that the Properties be partitioned by sale, or that
Plaintiff be ordered to accept a reasonable buyout of her interests in the
Properties.” (XC 16.) The Cross-Complaint further alleges:
“Cross-Complainants
are informed and believe, and on that basis allege, that a partition by sale of
the property, rather than physical division, would be more equitable to the
parties by virtue of the fact that Properties could not be physically divided to
allow the parties to use according to their respective desires. Further, the
value of the Properties would exceed that of the divided parcels, and the
parties are no longer on speaking terms and were unable to come to any other
resolution. Plaintiff filed her action without any discussion of being bought
out of her interests.” (XC ¶ 16; see also XC ¶ 21.)
Defendants
do not address their own claim for partition by sale seeking the same relief
as the Complaint; instead, as noted above, Defendants selectively quote to
only the first paragraph of the Cross-Complaint.
“[A] partition suit is in equity,”
and “a court of equity has broad powers and comparatively unlimited discretion
to do equity ...” (Richmond v. Dofflemyer (1980) 105 Cal.App.3d 745, 766;
Elbert, Ltd. v. Federated etc. Properties (1953) 120 Cal.App.2d 194,
200.)
Where, as
here, Defendants seek the same relief as the Complaint, the motion for judgment
on the pleadings to the partition by sale claim is well taken.
Lastly, the opposition does not address Plaintiff’s request for the appointment of a
referee. However, Plaintiff’s additional request for the appointment of a
referee does not appear to be proper on this motion for judgment on the
pleadings.
Nor
is such a request mandatory, as suggested by Plaintiff. Section 873.010, subdivision (a) states, “The
court shall appoint a referee to divide or sell the property as ordered by the
court.” Despite the use of the word “shall,” a referee is required under the
statute only if the trial court determines that a referee is necessary or
appropriate in the circumstances. (Richmond v. Dofflemyer (1980) 105
Cal.App.3d 745, 755.) “The only function of a referee is to assist the court in
determining those matters which cannot be so determined upon the evidence
before it.” (Ibid.)
Thus,
the Court declines to rule on this discretionary issue on this motion, which is
limited to evaluating the adequacy of the parties’ pleadings. (Mot., 7:17-22.)
CONCLUSION
The motion for
judgment on the pleadings is granted to Plaintiff’s claim for partition to the
Properties by sale.