Judge: Frank M. Tavelman, Case: 23BBCV00045, Date: 2023-03-17 Tentative Ruling

Case Number: 23BBCV00045    Hearing Date: March 17, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO FOR INTERLOCUTORY JUDGMENT OF PARTITION BY SALE AND APPOINTMENT OF PARTITION REFEREE

ALLEGATIONS/HISTORY: 

On January 9, 2022, Ryan Tate (“Plaintiff”) filed a Complaint against Chey Kennedy (“Defendant”) for Partition of Real Property by Sale. Plaintiff claims that he and Defendant are equal owners of the property identified as 11243 Valerio St., Sun Valley, CA 91352.  

On February 6, 2023, Defendant, in pro per, filed his answer.

On February 14, 2023, Plaintiff filed a Motion for Interlocutory Judgment of Partition with the Declaration of Brandon J. Anand (“Anand”). Defendant has filed no opposition.

RELIEF REQUESTED: 

Plaintiff moves the Court for an order granting interlocutory judgment as to the partition by sale of the real property at issue in this lawsuit and for the appointment of Anand as referee.  

ANALYSIS: 

I.                    LEGAL STANDARD 

C.C.P. § 872.720(a) provides that 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 and the manner of partition. (C.C.P., § 872.720(a).)   

“A partition action may be commenced and maintained by any of the following persons: (1) A co-owner 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).) “The court shall order that the property be divided among the parties in accordance with their interests in the property as determined in the interlocutory judgment.” (C.C.P. § 872.810.)   

II.                 MERITS

Plaintiff’s motion asks the Court to enter interlocutory judgment prior any determination of the rights of the parties. Plaintiff contends that the parties hold title to the property in joint tenancy. (Complaint ¶ 8.) Plaintiff attaches a copy of the grant deed to the complaint reflecting the joint tenancy. (Complaint Exh. A.) Plaintiff states that he requested Defendant pay him the equity in the property, but Defendant has refused to do so. (Complaint ¶ 17.) Plaintiff states that because of this dispute and his joint tenancy, Plaintiff is entitled to absolute right to partition. (Complaint ¶ 16.) Defendant, for his part, denies the allegations contained in paragraph 17.

C.C.P. § 872.710(a) states: “At the trial, the court shall determine whether the plaintiff has the right to partition.”  (C.C.P. § 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.”  (C.C.P. § 872.720(a).)  Viewed together, sections 872.710(a) and 872.720(a) clearly indicate that a court’s determination regarding an interlocutory judgment is to be made at trial, or by means of a properly filed dispositive motion as allowed under the Code of Civil Procedure. (See also Bacon v. Wahrhaftig (1950) 97 Cal.App.2d 599, finding no partition can be had until the interests of all the parties have been ascertained and settled by a trial.)  

Here, no determination of rights has been rendered by the Court. Plaintiff has filed his complaint claiming absolute right to partition and Defendant has filed his answer denying that allegation.

It is true that courts have found interlocutory judgments to be valid after determinations on summary judgment or other dispositive motions. (Williams v. Williams (1967) 255 Cal.App.2d 648.) However, Plaintiff submits no motion for summary judgment in compliance with C.C.P. § 437(c). Nor has plaintiff filed motion for judgment on pleadings in compliance with C.C.P. § 438.

The Court finds Plaintiff’s motion to be premature. As such, the Court DENIES the motion for interlocutory judgment of partition by sale and appointment of partition referee.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Ryan Tate’s Motion to for interlocutory judgment of partition by sale and appointment of partition referee came on regularly for hearing on March 17, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION FOR INTERLOCUTORY JUDGMENT OF PARTITION BY SALE AND APPOINTMENT OF PARTITION REFEREE IS DENIED. 

PLAINTIFF TO GIVE NOTICE UNLESS ALL PARTIES WAIVED NOTICE.

IT IS SO ORDERED. 

DATE: MARCH 17, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles