Judge: Elaine W. Mandel, Case: 23SMCV01545, Date: 2023-10-27 Tentative Ruling

Case Number: 23SMCV01545    Hearing Date: November 30, 2023    Dept: P

Tentative Ruling

Tamara Jeffries v. Jane Anne Jeffries Johnson, Case No. 23SMCV01545

Hearing Date November 30, 2023

Defendant Jane Anne Jeffries Johnson’s Motion to Dismiss Partition Action

In this partition action defendants Johnson and Nordeck move to dismiss plaintiff Tamara Jeffries’ complaint, arguing Jeffries’ predecessor-in-interest waived the right to partition the property. On October 27, 2023 the court issued a tentative ruling denying the motion on the grounds of improper service. The matter was continued to November 30, 2023 to provide plaintiff Jeffries the opportunity to file an opposition.

Defendant Johnson obtained the property via quitclaim deed from her mother, Dorothy Jane Jeffries. Motion Exhibit A. On March 1, 1977 Johnson recorded a grant deed providing herself, Nordeck, and her brother Robert Dan Jeffries each a 1/3 interest in the property. Id. Exhibit B. The 1977 grant deed stipulated “[t]hat any disposal or other transaction negotiated upon 2320 Greenfield Avenue must be endorsed by Jane Anne Johnson, Robert Dan Jeffries and Dori Miller (defendant Dori Jean Nordeck in this action.)” Parenthetical added. Plaintiff Tamara Jeffries, Robert Dan Jeffries’ daughter, acquired his undivided one-third interest in the property upon his death and now brings this partition action. Opposition RJN Exhibit 4.

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.

Exhibit B is not authenticated, so cannot admitted or considered as evidence. Even if the court were to consider the 1977 grant deed, the language does not mention the right to partition, so cannot constitute an explicit waiver. The language is ambiguous. The court must look to extrinsic evidence to determine its meaning – i.e. whether a partition constitutes a “disposal or other transaction negotiated upon 2320 Greenfield Avenue -- and whether it constitutes an implicit waiver of the right to partition.” No such evidence is provided.

Finally, although the motion is styled “motion to dismiss,” it seeks a court determination that, based on extrinsic evidence, there is no triable issue of fact as to the issue of waiver, so judgment must be entered for defendants, which is essentially a motion for summary judgment. This is not proper. DENIED.