Judge Daniel M. Crowley, Case Number: 24STCV018270, Date: 2025-03-05 Tentative Ruling

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Plaintiffs Michael L. Servera Sr.’s, Trustee of the Servera Trust dated November 9, 2016, Lisa Atkinson’s, Tina Riendeau’s, Leah Ayers’, and Daisy O. Servera’s, Trustee of the Servera Trust dated July 24, 2023, motion for an interlocutory judgment of partition of 13243 Calcutta St, Sylmar, CA 91342, Assessor’s Parcel Number 2512-020-038 is granted.

Plaintiffs’ motion for appointment of a partition referee is granted. The Court appoints Matthew L. Taylor, Esq., as partition referee, subject to the Court’s instructions.

Plaintiffs Michael L. Servera Sr., Trustee of the Servera Trust dated November 9, 2016 (“Michael”), Lisa Atkinson (“Atkinson”), Tina Riendeau (“Riendeau”), Leah Ayers (“Ayers”), and Daisy O. Servera, Trustee of the Servera Trust dated July 24, 2023 (“Daisy”), (collectively, “Plaintiffs”) move for an interlocutory judgment of partition of 13243 Calcutta St, Sylmar, CA 91342, Assessor’s Parcel Number 2512-020-038 (“Property”). (Notice Motion, pg. 2; C.C.P. §872.720(a).) Plaintiffs also request the appointment of a partition referee. (Notice Motion, pg. 2.)

Plaintiffs filed the operative complaint on July 23, 2024, against Defendant Jim Dell Williams (“Williams”) (“Defendant”) for a single cause of action for partition of the Property. On December 4, 2024, the Clerk entered default against Williams. On December 9, 2024, Plaintiffs filed the instant motion.

“‘[P]artition’ is ‘the procedure for segregating and terminating common interests in the same parcel of property.’” (14859 Moorpark Homeowner’s Association 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.)

C.C.P. §872.720(a) provides, “[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 and, unless it is to be later determined, the manner of partition.” (C.C.P. §872.720(a), emphasis added.)

C.C.P. §872.210(a) provides, “[a] partition action may be commenced and maintained by any of the following persons: (1) A coowner of personal property. [¶] (2) An owner of an estate of inheritance, an estate for life, or an estate for years in real property where such property or estate therein is owned by several persons concurrently or in successive estates.” (C.C.P. §872.210(a).)

Plaintiffs’ motion for interlocutory partition of the Property is granted. The legal requirements for an interlocutory judgment of partition have been met.

The law is that “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,” i.e., that there has not been a waiver of the right to partition. (Summers v. Superior Court (2018) 24 Cal.App.5th 138, 143, as modified June 27, 2018 [discussing C.C.P. §872.720(a)].)

First, where the pleadings do not raise any question regarding the ownership of the property, there is no factual issue for the Court to determine. (See, e.g., Brown v. Brown (1950) 98 Cal.App.2d 142, 144 [finding in partition action that trial court erred in ruling on parties’ respective interests in real property because the pleadings did not raise the issue].)

Here, ownership of the Property is not at issue since Defendant is in default and the title history shows as follows: (1) Plaintiff Michael L. Servera Sr., Trustee of the Servera Trust dated November 9, 2016, 15%; (2) Plaintiff Lisa Atkinson, 17%; (3) Plaintiff Tina Riendeau, 17%; (4) Plaintiff Leah Ayers, 17%; (5) Plaintiff Daisy O. Servera, Trustee of the Servera Trust dated July 24, 2023, 17%; and (6) Defendant Jim Dell Williams, 17%. (Decl. of Talkov, Exhs. 1-7, 10.)

Plaintiffs consent to the entry of an interlocutory judgment of partition granting ownership as follows: (1) Plaintiff Michael L. Servera Sr., Trustee of the Servera Trust dated November 9, 2016, 15%; (2) Plaintiff Lisa Atkinson, 17%; (3) Plaintiff Tina Riendeau, 17%; (4) Plaintiff Leah Ayers, 17%; (5) Plaintiff Daisy O. Servera, Trustee of the Servera Trust dated July 24, 2023, 17%; and (6) Defendant Jim Dell Williams, 17%. Plaintiffs’ interests in the Property are determined, satisfying the first element. (Summers, 24 Cal.App.5th at pg. 143.)

Second, Plaintiffs are entitled to partition. C.C.P. §872.720(a)) provides that “[a] co-owner of property has an absolute right to partition unless barred by a valid waiver.” (Orien v. Lutz (2017) 16 Cal.App.5th 957, 962.) As such, “if the party seeking partition is shown to be a tenant in common, and as such entitled to the possession of the land sought to be partitioned, the right is absolute.” (Bacon v. Wahrhaftig (1950) 97 Cal.App.2d 599, 603.) Indeed, “the right to partition is absolute, and cannot be denied, ‘either because of any supposed difficulty, nor on the suggestion that the interest of the cotenants will be promoted by refusing the application or temporarily postponing action. . . .’” (Priddel v. Shankie (1945) 69 Cal.App.2d 319, 325.)

Here, ¶27 of the Verified Complaint alleges that “Plaintiffs have never waived the right to partition in writing or in any other manner” and Defendant is in default. (Decl. of Talkov, Exhs. 8, 10.) Plaintiffs have not waived their right to partition, therefore meeting the second element. (Summers, 24 Cal.App.5th at pg. 143.)

“[T]he 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.” (Id. [finding that the trial court is authorized to “determine[] the parties’ ownership interests”]; see C.C.P. §872.720(a) [providing that the “manner of partition” can be decided in the judgment “unless it is to be later determined”].)

Here, partition in kind is unavailable because the Property is a single-family residence. (See Butte Creek Island Ranch v. Crim (1982) 136 Cal.App.3d 360, 366-367.) While the parties may agree upon a partition by appraisal, there is no such agreement herein.

Therefore, the Court grants Plaintiffs’ motion for default interlocutory judgment of partition of the Property.

The law in a partition action is that: “The court shall appoint a referee to divide or sell the property as ordered by the court.” (C.C.P. §873.010(a).) In appointing a referee: “The court may: . . . Instruct the referee [and] Fix the reasonable compensation for the services of the referee and provide for payment of the referee’s reasonable expenses.. . .” (C.C.P. §§873.010(b)(2)-(3).) “The referee or any party may, on noticed motion, petition the court for instructions concerning the referee’s duties.” (C.C.P. §873.070.) Additionally, the referee

has a broad range of authority over the Property as provided in C.C.P. §873.060,

which provides that “[t]he referee may perform any acts necessary to exercise the authority conferred by this title or by order of the court.”

C.C.P. §873.050 provides, “[n]one of the following persons shall be appointed a referee under this title: (a) A clerk or deputy clerk of the court. (b) A former or present partner or employee of the judge. (c) A relative within the third degree of the judge or the judge’s spouse or the spouse of such a relative. (d) An owner of any interest in the property that is the subject of the action.” (C.C.P. §873.050.)

Plaintiffs request that this Court appoint a referee, Matthew L. Taylor (“Taylor”). Here, Plaintiffs have located and confirmed the availability of Taylor to act as the referee in this case. (Decl. of Taylor ¶1.) Taylor has been an attorney since 1995 with a practice in real estate and receiverships, with a particular focus on partition referee work. (Decl. of Taylor ¶2.) Taylor’s resume indicates his appointment as a receiver in dozens of cases and appointment as a partition referee in dozens of cases. (Decl. Taylor ¶3.) Taylor also served as in-house counsel for a receiver for 8 years before starting his own law practice where he worked on another 15 receivership cases. (Decl. of Taylor ¶2.) Taylor estimates that the total cost of most partitions is approximately $14,000. (Decl. of Taylor ¶9.)

Taylor indicates that he is ready, willing and able to accept Plaintiffs’ nomination as referee. (Decl. of Taylor ¶8.) Taylor indicates that he has no personal or professional affiliation with Plaintiffs or their attorney of record. (Decl. of Taylor ¶11.) Accordingly, Taylor is well-qualified to handle the referee appointment in this case.

The referee shall review be authorized to determine the manner of partition. If the referee determines that partition in-kind is most appropriate, the referee shall prepare a report to this Court for approval. (C.C.P. §§873.210, 873.280.)

If the referee determines that the Property should be sold, the referee shall be authorized to proceed. After the referee has incurred any costs of repairs or other expenses necessary to prepare the Property to be sold, which shall be recouped by the referee following the sale, the Property shall be sold on an “as-is” basis, without any warranty, express or implied, except as to title. The sale is subject to current taxes, covenants, conditions, restrictions, reservations, rights, rights of way, and easements of record. Any encumbrances of record shall be satisfied out of the proceeds of sale, provided that if any such encumbrance is the result of judgments against any individual owner or if any voluntary liens were incurred for the benefit of any individual owner, the costs of such satisfaction shall be charged against the proceeds of sale that would otherwise be payable to said owner.

In the event that the referee determines that a sale is most appropriate, the Property shall be listed and sold on the open market through a realtor placing the Property on the MLS. The Listing Agreement shall not provide for any blanket offer of the compensation to any buyer’s agent on any Multiple Listing Service in accordance with recent judicial rulings on this topic. Real property taxes, rents, operating and maintenance expenses, and premiums on insurance acceptable to the purchaser shall be prorated as of the date of recording the conveyance. The costs and expenses of the escrow shall be divided between the seller and the buyer in conformity with the customs and practices prevalent in Los Angeles County. The escrow shall close as soon as is reasonably possible after the confirmation any sale by the Court.

In the event that the referee proceeds with a sale, Plaintiffs propose that Defendant and any other persons in possession of the Property be ordered by this Court to vacate the Property within thirty (30) days of the date of service of an interlocutory judgment granted by this Court, and to remove all personal effects from the Property during this time. Note that, as a practical matter, the partition referee would prefer the Property to be occupied to avoid issues with break-ins, leaks, etc. so long as the occupants are cooperative with the partition process.

If Defendant and any other persons in possession of the Property fail to so vacate and/or fail to remove all personal effects from the Property, the costs and expenses reasonably incurred to effectuate the implementation of these move-out provisions of the order shall be charged to Defendant’s portions as to any distribution relating to the partition of the Property. Said costs and expenses shall include, but not be limited to, referee’s fees, attorneys’ fees, moving costs, the costs of any writ of execution provided to the Los Angeles County Sheriff, and any consequential expenses attributable to delays in partitioning the Property.

Finally, The Court shall retain jurisdiction of this matter to confirm the partition of the Property, to consider the issuance of such orders as requested by the referee or either of the parties, to review the reports of the referee, to issue whatever additional orders as may be required to carry out the partition of the Property, and to consider whether equitable adjustments to the distribution of the net proceeds to the parties are equitable and appropriate.

The Court finds these instructions reasonable and orders the referee to follow them.

Plaintiffs’ request for appointment of Mathew L. Taylor as partition referee is granted.

Hon. Daniel M. Crowley

Judge of the Superior Court