Judge: Gregory Keosian, Case: 22STCV17583, Date: 2022-12-07 Tentative Ruling

Case Number: 22STCV17583    Hearing Date: December 7, 2022    Dept: 61

Plaintiff Edgar Alan Ruiz Martinez’s Motion for Interlocutory Judgment of Partition and Sale of Property is GRANTED.

Plaintiff to provide notice.

I.                MOTION FOR INTERLOCUTORY JUDGMENT

“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.” (Code Civ. Proc. § 872.720, subd. (a).)

“ ‘[P]artition’ is ‘the procedure for segregating and terminating common interests in the same parcel of property.’ ” (14859 Moorpark Homeowner's Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1404-1405, 74 Cal.Rptr.2d 712.) 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, supra, 13 Cal.App.5th at p. 596, 220 Cal.Rptr.3d 463.)

The governing statute is section 872.720. Subdivision (a) declares that “[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.” (§ 872.720, subd. (a).) The order of partition “shall order that the property be divided among the parties in accordance with their interests as determined in the interlocutory judgment.” (§ 872.810.) Section 872.720, subdivision (b), allows the court to issue sequential interlocutory judgments for original concurrent and successive owners if the court determines that it “is impracticable or highly inconvenient to make a single interlocutory judgment that determines, in the first instance, the interest of all the parties in the property.” (§ 872.720, subd. (b).)

When the trial court “determines the interests of the parties in the property and orders the partition of the property,” it shall decide the manner of partition “unless [this] is to be later determined.” (§ 872.720, subd. (a).) “The manner of partition may be ‘in kind’—i.e., physical division of the property [citation] according to the parties’ interests as determined in the interlocutory judgment. [Citations.] Alternatively, if the parties agree or the court concludes it ‘would be more equitable,’ the court may order the property sold and the proceeds divided among the parties.” (Cummings, supra, 13 Cal.App.5th at p. 597, 220 Cal.Rptr.3d 463; § 872.820.)

Two points are made clear by these provisions.  First 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. (§ 872.720, subd. (a).) Second, the 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. (Ibid.)

(Summers v. Superior Court (2018) 24 Cal.App.5th 138, 142–143.)

Plaintiff Edgar Alan Ruiz Martinez (Plaintiff) pleads and testifies that he is a 50% a co-owner as a joint tenant in common of the real property at issue on Via Lucia in Montebello. (Complaint ¶¶ 5–6, 16–21; Martinez Decl. ¶ 2, Exh. A.) Defendant Adolfo Ruiz Vasquez (Defendant) does not deny these allegations in his answer, and they are therefore taken as true in this action. (See Code Civ. Proc. § 431.20, subd. (a) [“Every material allegation of the complaint or cross-complaint, not controverted by the answer, shall, for the purposes of the action, be taken as true.”].)

“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.) Because Plaintiff has established that he is a co-owner of the property, he has shown that he has an absolute right to partition. By the same token, Plaintiff has also established he and Defendant’s respective interests in the property, each possessing equal interest as joint tenants in common.

Having established Plaintiff’s right to partition of the property and the parties’ interests in the same, the court may now order the partition of the property and the manner of partition. (Summers, supra, 24 Cal.App.5^th at p. 143.)

Plaintiff here seeks partition by sale, as the Complaint pleads that “the Subject Property is not so situated that a division into sub-parcels of equal value can be made. Partition by sale is equitable and necessary due to the breakdown in communication and relations between the parties and,

thus, is for the common benefit of both parties.” (Complaint ¶ 20.) This allegation is not among the allegations denied in Defendant’s answer, and is therefore taken as true. Accordingly, petition by sale is the most equitable means of partition available.

Plaintiff asks that the sale be conducted by one of two ways. He has presented a list of four real estate agents, from which Defendant may choose the one to represent them in the sale of the property, provided this court order that he do so. (Motion at p. 5; Martinez Decl. ¶ 10) Alternatively, he asks that this court appoint a referee to handle the sale. (Motion at p. 5.)

Defendant has filed no opposition to the motion, and there is little evidence that a referee is needed to facilitate the sale. Accordingly, the property is ordered to be sold through the parties’ mutually agreed-upon agent, chosen from the list submitted by Plaintiff.

The motion for interlocutory judgment and partition is therefore GRANTED.