Judge: Deirdre Hill, Case: 23TRCV00119, Date: 2023-02-23 Tentative Ruling

Case Number: 23TRCV00119    Hearing Date: February 23, 2023    Dept: M

Hearing Date:                         February 22, 2023

Moving Parties:                      Plaintiff Daphne Mercado

Responding Party:                  None

Motion for Interlocutory Judgment of Partition and Appointment of Referee

            The court considered the moving papers.

RULING

            The motion is DENIED WITHOUT PREJUDICE.

BACKGROUND

            On January 13, 2023, plaintiff Daphne Mercado filed a complaint for partition by real property against Porfirio Jimenez and Wells Fargo Financial California, Inc. (“Wells Fargo”) for partition of the two-unit duplex at 3527 W. 132^nd Street, Hawthorne, CA 90250, held as joint tenants by plaintiff, who is agreeable to sell, and defendant, who has refused to sell and also refused to buy out the interest of plaintiff.  Plaintiff and defendant are formerly boyfriend and girlfriend.  Defendant Wells Fargo is named pursuant to CCP §872.510 as an entity “having or claiming interests of record . . . in the estate as to which partition is sought.”  No affirmative relief is sought as to Wells Fargo.

DISCUSSION

            Under CCP §872.120, et al., plaintiff requests an interlocutory judgment of partition and appointment of referee Matthew Taylor with regard to the two-unit duplex at 3527 W. 132^nd Street, Hawthorne, CA 90250.

            Plaintiff contends that defendant refuses plaintiff’s reasonable requests for a voluntary sale of the co-owned property “that has been held by the parties for two decades as a rental property.”  She argues that she has met the elements for partition.  Plaintiff seeks the use of a third-party referee to take control of the property and to see that defendant and any occupants vacate in an orderly manner, thereby allowing for the marketing and sale of the property.

            The court notes that defendants have not appeared in the action.  The proof of service filed on February 2, 2023 indicates that defendant Jimenez was personally served on February 1, 2023 and thus the time to file a responsive pleading has not expired.

CCP §872.120 states, “In the conduct of the action, the court may hear and determine all motions, reports, and accounts and may make any decrees and orders necessary or incidental to carrying out the purposes of this title and to effectuating its decrees and orders.”  CCP §872.120 does not give the court authority to order the sale of the property prior to holding a trial, determining whether plaintiffs have a right to partition, and making an interlocutory judgment.  “The interests of the parties, plaintiff as well as defendant, may be put in issue, tried, and determined in the action.”  CCP §872.610.  “(a) At the trial, the court shall determine whether the plaintiff has the right to partition.”  CCP §872.710.  “(a) If 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.”  CCP §872.720.  “Notwithstanding Section 872.201, the court shall order that the property be sold and the proceeds be divided among the parties in accordance with their interests in the property as determined in the interlocutory judgment . . . .”  CCP §872.820.  

As such, the motion is premature because defendants have not appeared and the court has not determined the respective interests in the property at a trial. 

The motion is thus DENIED.

Moving party is ordered to give notice of ruling.