Judge: Deirdre Hill, Case: 23TRCV00119, Date: 2023-05-11 Tentative Ruling

Case Number: 23TRCV00119    Hearing Date: May 11, 2023    Dept: M

Hearing Date:                         April 25, 2023

Moving Parties:                      Plaintiff Daphne Mercado

Responding Party:                  Defendant Porfirio Jimenez

Motion for Interlocutory Judgment of Partition and Appointment of Referee

            The court considered the moving, opposition, and reply 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.

            On March 2, 2023, defendant Porfifio Jimenez filed a cross-complaint for indemnification, apportionment of fault, and breach of contract.  The cross-complaint alleges that on September 6, 2002, the parties jointly purchased the real property located at 3527 West 132^nd Street, Hawthorne.  At the time of purchase, the parties entered into an oral agreement to equally contribute towards the upkeep of the subject property and equally divide any profits when the subject property was eventually sold.  The parties also agreed that cross-defendant would manage, maintain, keep an accounting of the rents for the property.  Cross-complainant agreed to improve the property by splitting units and creating more living space so that space could be rented.  Cross-defendant breached the oral agreement by keeping rents and not sharing them with cross-complaint, by failing to keep an accounting, by failing to maintain the property and allowing it to go into disrepair and waste, by collecting Covid funds and not sharing them with cross-complainant, and by intentionally damaging the subject property.  As a result, cross-complainant has sustained damages in the sum of at least $150,000.

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.  She contends that there is no waiver of the right to partition; the interests of the parties are undisputed with plaintiff and defendant each holding a ½ title interest; and the manner of partition must be partition by sale since the duplex covering one APN cannot be divided.  Further, 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.

            In opposition, defendant asserts that he is in agreement to immediately sell the property but is not in agreement that a referee be appointed.  Defendant argues that the costs of the referee are unnecessary and cost prohibitive.  Further, defendant contends, he would like to make repairs and clean the property to obtain the highest price before the property is sold.  Defendant also argues that the motion is premature because the court has not determined the parties’ interests in the property and that “[t]here are issues regarding the parties’ respective interests” because there is a dispute regarding credits, reimbursement, and offsets.

            In reply, plaintiff argues that there is no dispute as to ownership interests—as each party has a ½ interest—and that any issue as to offset does not impact ownership interests and is determined after the property is sold.  See CCP §873.850.

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.   CCP §873.010(a) states, “The court shall appoint a referee to divide or sell the property as ordered by the court.”

The court notes that the statutory scheme envisions an interlocutory judgment of partition, which must come as the result of a trial or dispositive motion (i.e., summary judgment) to determine the parties’ interests and rights.  As such, the motion is premature because the court has not determined the respective interests in the property at a trial or by dispositive motion.  Plaintiff has not provided authority showing that the relief requested may be granted via a motion at this stage. 

The motion is thus DENIED WITHOUT PREJUDICE.

Moving party is ordered to give notice of ruling.