Judge Kerry Bensinger, Case Number: 21STCV19018, Date: 2024-09-16 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

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The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

CASE: Cally Williams Caiozzo, As Trustee of the Harry A. Williams Family Trust Created on August 7, 1984 v. 2672 to 2674 North Beachwood Drive, LLC, et al.

MOTION FOR SUMMARY ADJUDICATION THAT DEFENDANT’S EQUITABLE DEFENSES TO PARTITION BY SALE LACK MERIT

MOVING PARTY: Plaintiff/Cross-Defendant Cally Williams Caiozzo, as Trustee of the Harry A. Williams Family Trust created on August 7, 1984

RESPONDING PARTY: Defendant/Cross-Complainant 2672 to 2674 North Beachwood Drive, LLC

On May 20, 2021, Plaintiff Cally Williams Caiozzo, as Trustee of the Harry A. Williams Family Trust, which was created on August 7, 1984 (Caiozzo or Plaintiff), filed this action against Defendant 2672 to 2674 North Beachwood Drive, LLC (the LLC or Defendant). The Complaint asserts the sole cause of action for partition by sale of the real property located at 2672-2674 North Beachwood Drive, Los Angeles, California 90068 (the duplex or the property). The LLC filed a verified answer which, in relevant part, asserted equitable defenses of waiver, unclean hands, estoppel, laches, and failure to do equity.

The duplex contains a two-story multi-family structure with a downstairs unit (the 2672 unit), an upstairs unit (the 2674 unit), and a garage structure with parking for each unit. As detailed below, the property has been an asset of the extended Williams family since 1962.

In 1962, Lela Fay McKinnon conveyed the property to (1) Alex and Kaliopy Williams as husband and wife; (2) Harry and Pauline Williams as husband and wife; and (3) Dino and Barbara Williams as husband and wife (the 1962 Deed).

In 1965, the owners under the 1962 Deed transferred the property to (1) Dino and Barbara Williams as joint tenants to an undivided one-half interest; and (2) Harry and Martha Williams as joint tenants to an undivided one-half interest (the 1965 Deed).

In 1984, Harry and Martha Williams transferred their undivided one-half interest in the property to themselves or their successors as trustees of the Harry A. Williams Family Trust, created August 7, 1984 (the Trust) (the 1984 Deed).

In 2013, Harry and Martha Williams, as trustees of the Trust, transferred their undivided one-half interest in the property to “Harry A. Williams and Cally Williams Caiozzo [Harry's daughter], or their successors, Trustees of the [Trust]” (the 2013 Deed). (Capitalization omitted.) The 2013 Deed is signed twice by Harry Williams, first as “co-trustee” and second as Martha Williams's attorney-in-fact.

In March 2020, Harry Williams died, leaving Caiozzo as the sole trustee of the Trust. In March 2021, Caiozzo recorded an Affidavit of Death of Trustee, which disclosed the death of Harry Williams, attached a copy of his death certificate, and stated “[b]y virtue of the death of HARRY A. WILLIAMS on March 7, 2020, Cally Williams Caiozzo became sole Trustee” of the Trust, which is the record owner of an undivided one-half interest in the property.

With respect to the other undivided one-half interest in the duplex, in 1999, Dino Williams deeded his interest in the property to himself as trustee of the Dino Williams Family trust. After Dino Williams died in 2014, his three children, Alexa Williams, Gregory Williams, and Llandys Williams (Dino's children) became owners of Dino Williams's undivided one-half interest in the property as successor co-trustees of the Dino Williams Family Trust. Dino's children then engaged in a series of transfers in 2014, 2015, 2018, and 2019, by which the undivided one-half interest in the property belonging to the Dino Williams Family Trust was transferred to the LLC in this action.

Plaintiff initiated this action on May 20, 2021. Later, Plaintiff moved for summary adjudication on her sole cause of action for partition by sale. Judge Yolanda Orozco issued a tentative ruling finding Plaintiff was entitled to partition. Only the LLC’s equitable defense of waiver was considered in reaching that finding. However, Judge Orozco also found Plaintiff had not carried her burden to establish partition by sale was equitable. Accordingly, Judge Orozco appointed a referee to advise on the appropriate method of partition instead of granting Plaintiff’s motion. The parties were directed to meet and confer regarding the selection of the referee. Rather than meeting and conferring, the parties entered into a stipulation requesting the court to grant Plaintiff’s motion without deciding the issue of partition in kind or by sale and issue an interlocutory judgment in Plaintiff’s favor. The purpose of the stipulation was to allow the LLC to appeal the order immediately.

The trial court entered an interlocutory judgment of partition as provided in the parties’ stipulation, and the appeal followed. The LLC’s appeal presented two issues: whether the trial court erred by granting plaintiff’s motion because (1) plaintiff failed to prove each element of her claim for partition by sale; and (2) triable issues of material fact existed regarding the issues of standing and the LLC's equitable defenses.

On November 13, 2023, the Court of Appeal affirmed Judge Orozco’s ruling. In no uncertain terms, Caiozzo is entitled to a partition of the property. The Court of Appeal, however, did not decide the method of partition. Indeed, the Court of Appeal remanded the matter back to the trial court to “consider all of the LLC’s equitable defenses, including unclean hands, estoppel, laches, and failure to do equity” when deciding “whether Caiozzo meets her burden to demonstrate a sale of the property is more equitable than a division in kind.”

On May 22, 2024, Plaintiff filed this Motion for Summary Adjudication That Defendant’s Equitable Defenses to Partition By Sale Lack Merit.

When reviewing a motion for summary judgment or summary adjudication, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”¿ (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)¿¿A motion for summary judgment must be granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.”¿ (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)¿ A defendant seeking summary judgment “bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.”¿ (Code Civ. Proc., § 437c, subd. (p)(2).)¿ A moving defendant need not conclusively negate an element of plaintiff’s cause of action.¿ (Aguilar, supra, 25 Cal.4th at p. 854.)¿¿

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.”¿ (Aguilar, supra, 25 Cal.4th at p. 854.)¿ It is insufficient for the defendant to merely point out the absence of evidence.¿ (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)¿ The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”¿ (Ibid.)¿ The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.¿ (Aguilar, supra, 25 Cal.4th at p. 855.)¿¿

“Once the defendant … has met that burden, the burden shifts to the plaintiff … to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)¿The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”¿(Ibid.)¿ A plaintiff opposing summary judgment defeats the motion by showing one or more triable issues of material fact exist as to the challenged element. (Aguilar, supra, 25 Cal.4th at p. 849.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)¿¿

The court must “liberally construe the evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party,” including “all inferences reasonably drawn therefrom.”¿ (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Aguilar, supra, 25 Cal.4th at pp. 844-45.)¿ “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence.¿ While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.¿ [Citation.]¿ Only when the inferences are indisputable may the court decide the issues as a matter of law.¿ If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.)¿ “Put another way, have defendants conclusively negated a necessary element of the [plaintiff’s] case or demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial?”¿ (Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 860, internal citation omitted.)¿Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.¿ [Citation.]¿ Nor may the trial court grant summary judgment based on the court’s evaluation of credibility.¿ [Citation.]” ¿(Id. at p. 840; see also Weiss v. People ex rel.¿Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)¿¿

Plaintiff’s unopposed request for judicial notice is GRANTED. (Evid. Code, § 452, subds. (a), (d)(1), (h).)

Defendant submits three (3) objections to the Declaration of Cally Caiozzo and five (5) objections to the Declaration of Thomas DuMary III.

Declaration of Cally Caiozzo: The court declines to rule on these objections (1 -3), because they are not relevant to the disposition of this motion. (Code Civ. Proc., § 437c, subd. (q).)¿

Plaintiff submits twelve (12) objections to the Declaration of Gregory P. Williams, five (5) objections to the Declaration of John A. Gebhart, one (1) objection to the Declaration of Randy Aguirre, and three (3) objections to the Declaration of Matthew Fragner.

Declaration of Gregory P. Williams: The court declines to rule on Objection 1 because it is not relevant to the disposition of this motion. (Code Civ. Proc., § 437c, subd. (q).)¿ The court SUSTAINS objections: 2 -10. The court OVERRULES objections 11, 12.

The court has already determined the parties’ respective interests in the property and Plaintiff’s entitlement to partition. (See Minute Order, 4/24/22.) The Court of Appeal affirmed those determinations. (See Caiozzo v. 2672 to 2674 North Beachwood Drive, supra, 2023 WL 7485496, at *1, 6.) As framed by the Court of Appeal, this court must now determine whether a sale of the property is more equitable than a division in kind after consideration of the LLC’s remaining equitable defenses. Plaintiff brings a motion for summary adjudication of Defendant’s equitable defenses to establish that a partition by sale is the only viable option.

“Partition is the procedure for segregating and terminating common interests in the same parcel of property. 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.” (Summers v. Superior Court (2018) 24 Cal.App.5th 138, 142 (Summers) [cleaned up].)

The right of a co-owner to seek partition is governed by statute. Under Code of Civil Procedure section 872.710, subdivision (a), the court “shall determine whether the plaintiff has the right to partition.” “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).) “ ‘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.’ ” (Summers, 24 Cal.App.5th at p. 143.)[2]

“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, supra, 24 Cal.App.5th at p. 143.)

“As a rule, the law favors …. partition in kind, since this does not disturb the existing form of inheritance or compel a person to sell his property against his will.” (Richmond v. Dofflemyer (1980) 105 Cal.App.3d 745, 757 (Richmond); see Code Civ. Proc., §§ 872.810, 872.820.) However, “[t]he 1976 revision of the partition statute,” which changed “the standard for allowing a sale of property ... from ‘great prejudice’ to ‘more equitable,’ ” enabled “sale in cases where it previously was precluded under the predecessor statute.” (Id.) In doing so, the Legislature recognized that the sale of property is preferable “[in] many modern transactions ... since the value of the divided parcels frequently will not equal the value of the whole parcel before division. Moreover, physical division may be impossible due to zoning restrictions or may be highly impractical, particularly in the case of urban property.” (Butte Creek Island Ranch v. Crim (1982) 136 Cal.App.3d 360, 365 (Butte Creek).)

Plaintiff moves for summary adjudication of Defendant’s equitable defenses because, according to Plaintiff, partition by sale is the only viable method of partition. Defendant’s pursuit of a division in kind, according to Plaintiff, is impossible as a matter of law. Because a partition in kind is not feasible, Plaintiff submits the court need not consider the equitable defenses (unclean hands, estoppel, laches, and failure to do equity), or, even if the court were to consider them, the court should summarily adjudicate and reject them. Confident in her position, Plaintiff does not expressly challenge or otherwise discuss the application of the equitable defenses.

There are only two options before the court: partition by sale or partition in kind. Partition by sale is a viable option, albeit undesired by Defendant. Plaintiff advances her argument in favor of partition by sale by demonstrating that partition in kind is impossible or, at least, so impracticable that it is not a viable option. Absent an agreement between the parties to proceed as tenants in common, which Plaintiff flatly rejects, Plaintiff submits that what Defendant proposes as a division in kind is actually the creation of condominium complex.[3]

Plaintiff argues the creation of a proposed condominium conversion is impossible or, at least impractical, “due to the expense, delay, and uncertainty involved in a partition in kind that complies with Los Angeles’s building and zone codes.” (Motion, p. 17:17-20.) Plaintiff submits the Declaration of her expert, Thomas DuMary III (DuMary), who opines that the division of the property into two separate properties with no co-ownership is impossible. (DuMary Decl. ¶ 7.)

“The Duplex Property houses a two-story multi-family structure with a downstairs unit (the “2672 Unit”) and an upstairs unit (the “2674 Unit”), and a garage structure with parking for each unit.” (Interlocutory Judgment of Partition, 6/27/22, at ¶ 1.) The property also has a shared detached garage and other common areas such as a driveway and yard which contain a single Assessor’s Parcel Number. (Plaintiff’s Undisputed Material Facts (UMF) 5.)

Based on these characteristics, DuMary opines that a condominium conversion would still result in “shared ownership of the exterior walls of the Duplex, the parking structure, and the underlying land. In addition to the existence of jointly-owned areas such as the garage, yard, and land, the following will remain the joint responsibility of the co-owners of the resulting condominium units:

· All Structural and Waterproofing related building maintenance and repair of the physical building structures on the property, including the garage;

· Landscape maintenance, watering, exterior lighting, site walls, driveways, etc.

In other words, the parties would remain co-owners which defeats entirely the purpose of a partition.

DuMary goes onto to opine that condominium conversion is “technically tenuous and economically unsound” because it would require a “tremendous architectural and engineering effort” to make each unit structurally independent of the other, including “demolition of shared structural elements such as the existing common ceiling/floor assembly and the construction of a new foundation system that spanned above the lower unit and into the ground surrounding the building.” (Id. at ¶¶ 9, 11.) As a result, the “lower unit would then need a new roof structure to create a separate enclosure of the space.” (Id.) A licensed architect or engineer would need to verify if that required work is even “technically feasible” for the property. (Id.) DuMary notes the expense of a condominium conversion project would likely exceed the current value of the property. (Id., at ¶ 11.) And, assuming the feasibility of the project, DuMary states the “resulting structures and the entire property [would need to] be brought up to the current Building Code and Zoning Code standards. …. [A]t least all of the following will likely be necessary:

d. site retaining walls, grading, and existing non-conforming building locations will have to be corrected;

e. access stairs to the second level will require reconstruction and physical separation from the lower unit; and

DuMary estimates the permitting process would take 12-14 months. (Id., at ¶ 12.)

DuMary also states that any effort to complete the foregoing condominium project would involve long delays due to the permit process, even if the permits could be obtained.

In short, Plaintiff argues it is (1) impossible to partition the property in kind because the parties will remain co-owners; (2) such a condominium conversion is financially unsound and impracticable given the physical characteristics of the property, and (3) the completion of such a project is a long, complex, and uncertain.

Plaintiff’s argument is straight forward. Because of the obstacles involved in partitioning in kind (as discussed above), the court need not dwell on the equitable defenses (unclean hands, estoppel, laches, and failure to do equity) because these equitable defenses cannot surmount the foregoing obstacles. As such, Plaintiff argues summary adjudication of Defendant’s equitable defenses is appropriate.

Defendant does not respond to or challenge DuMary’s analysis and assessment. Instead of launching a frontal attack, Defendant maneuvers around Plaintiff’s argument and presents an alternative solution. Defendant argues the property can and should be divided in kind by “creating a tenancy in common subject to a reciprocal agreement with respect to Duplex Property commons areas.” (Defendant’s Position of Matter in re Status Conference, 12/06/23, at p. 2:2-6.)(emphasis added). Defendant’s argument rests upon a proposed agreement between the parties to create a tenancy in common.

In support of its proposal, the LLC offers the declaration of real estate attorney Matthew Fragner, who states that “[i]n my tenure and career as a real estate attorney, I have structured many tenancy in common (“TIC”) agreements, best described as legal arrangements wherein two or more parties share ownership right to real property such as hotels, office building, and apartments. (Fragner Decl., ¶ 5.) A TIC agreement can be used when a single property has multiple units occupied by co-owners or its tenants. This agreement may, among other things, outline the parties’ ownership shares, the nature and relationship between the co-tenants, the parties’ obligations with respect to income and liabilities, the parties’ obligations with respect to management, and how transfer of ownership may be completed.” (Fragner Decl., ¶ 6.)(emphasis added.)

Unfortunately for Defendant, there is no TIC agreement. Plaintiff flatly rejects the proposal. Plaintiff seeks and is entitled to partition. She does not agree to continue the unity of possession, and “[t]he primary purpose of a partition suit is ... to partition the property, that is, to sever the unity of possession.” (Cummings v. Dessel (2017) 13 Cal.App.5th 589, 596 (Cummings).)

Although Defendant does not say it, perhaps the LLC is proposing that the court order a tenancy in common based upon its equitable arguments. But the court cannot make such an order absent an agreement between the parties. “‘Partition in kind’ means the division of property into physically distinct and separately titled parcels.” (Code. Civ. Proc., § 874.312.) Here, the LLC’s proposal contemplates maintaining the current features of the duplex with an upstairs unit and downstairs unit. The LLC does not explain how ordering ownership of the upstairs unit to Plaintiff and the downstairs unit to the LLC amounts to a division of the property into physically distinct parcels, especially given the common areas at issue. Of course, the parties may agree to such an arrangement. However, as a method of partition, the LLC’s proposal is not contemplated by the law. The court is not empowered to deviate from the statutory scheme. (See, e.g., Cummings, supra, 13 Cal.App.5th at pp. 598-602 [finding trial court erred by adopting a partition procedure which effectively combined partition by appraisal and partition by sale but did not meet requirements for either partition method].)

The LLC does not offer any evidence to counter Plaintiff’s demonstration of the enormous financial undertaking and practical challenges inherent in dividing the property and creating a condominium complex. The opinions of Plaintiff’s expert, DuMary, regarding the obstacles to create a physical separation of the property, the length of the permitting process, the problems with bringing the property up to code, and the substantial cost to divide the property all stand unrebutted.

True, the LLC argues the condominium conversion project is possible, and the LLC invokes the law’s general preference for partition in kind (see Richmond, supra, 105 Cal.App.3d at p. 757). But the LLC fails to present any credible evidence in support of its argument that such a project is either viable or economically feasible. The LLC fails to engage with the real-world challenges presented by subdividing an urban property such as this one. (Butte Creek, supra, 136 Cal.App.3d at p. 365 [“Moreover, physical division may be impossible due to zoning restrictions or may be highly impractical, particularly in the case of urban property”].) As the court has noted, Defendant fails to offer any evidence to show that condominium project would accomplish a complete division in the properties or that such a project is economically or logistically viable.

The LLC ignores relevant authority standing for the proposition that the sale of property is preferable when the value of the divided parcels frequently will not equal the value of the whole parcel before division, or where physical division may be impossible due to zoning restrictions or may be highly impractical, such as in the case of an urban property. (See Butte Creek, supra, 136 Cal.App.3d at p. 365.) Defendant fails to rebut Plaintiff’s showing that a complete untangling of the property is likely impossible and, even if possible, is financially and logically impracticable.

Finally, the LLC argues DuMary did not consider the effect of Senate Bill 9 (SB-9) on a potential condominium conversion project. As the LLC explains, SB-9, codified at Government Code sections 65852.21 66411.7, and 66452.6, cuts through the red tape for obtaining approval of a subdivision project. However, as Plaintiff points out, SB 9 may well be unconstitutional. (See Reply, Exh. C, Judgment, Case No. 22STCP01143 (declaring SB 9 is unconstitutional).) Further, as discussed above, the LLC does not address the evidence submitted establishing the challenges with subdividing this property.

Defendant’s argument regarding the equities fares no better. The LLC’s equity argument boils down to the following: Plaintiff diminished the property’s re-sale value by allowing her stepbrother, Jim Hutton (Hutton), to live in a unit rent free. (See Gebhart Decl., ¶ 8.) The implication being that potential buyers will pay less for the property because Hutton did not pay rent in the past and Hutton may remain in the unit for the rest of his life, rent-free.

These arguments lack merit. Defendant’s argument that Hutton will remain in the property for the rest of his life, rent free is factually unsupported and legally unsound. Defendant constructs this argument based upon the faulty premise that Hutton will continue to live there, and any new buyer will not be able to remove him. Defendant does not submit testimony from Hutton. Hutton’s future living arrangements are uncertain.[4] What is not uncertain, however, is that a new owner can evict Hutton. The LLC concedes Hutton occupies the unit pursuant to a verbal lease agreement. (Defendant’s Additional Material Facts 21.) Oral leases beyond a year violate the statute of frauds. (See Bed, Bath & Beyond of La Jolla, Inc. v. La Jolla Village Square Venture Partners (1997) 52 Cal.App.4th 867, 877.) “A tenant who is in possession with the permission of the owner under an oral contract, which is unenforceable under the statute of frauds, … is a tenant at will.” (Miller & Starr, 101 Cal. Real Est. § 34:28 (4th ed.).) “A tenancy at will is terminable at the will of either party.” (Id.)(emphasis added.) Accordingly, Hutton is an at-will tenant. If the current or future owner of the property chooses to end Hutton’s tenancy, they may do so at any time. This point undermines the central pinion of Defendant’s devaluation argument and, as it topples, so too goes Defendant’s argument that Plaintiff should be estopped from seeking a partition by sale because she decreased the value of the property by allowing Hutton to stay in the upstairs unit rent free, or a similar variation based upon unclean hands, or failure to do equity.

Second, Defendant’s failure to pay rent argument is untethered to its equitable defenses. Defendant does not demonstrate how Hutton’s failure to pay rent improves its equitable arguments in opposition to partition by sale. Indeed, Defendant hardly addresses or applies the facts to the equities at issue, let alone demonstrates how the failure to collect rent surmounts the obstacles faced in the creation of the condominium project. (See Opposition, pp. 20:12-24:5.) Moreover, any rental collection deficiency may be addressed by offsets after the sale (or such claims and related issues may be raised in Defendant’s Cross-Complaint). The rental deficiency does not improve Defendant’s equitable defenses.

Moreover, any weight afforded to Defendant’s equitable defenses cannot and does not come close to matching the equities in favor of partition by sale. Given that a partition of the property must happen, the only viable partition, after consideration of the evidence and Defendant’s equitable defenses, is a partition by sale. On this issue, Defendant fails to raise any triable issues of material fact.

The Court of Appeal remanded the matter for this court to consider whether Plaintiff satisfied her burden to show that a sale of the property is more equitable than a division in kind. This court has considered Defendant’s equitable defenses, including unclean hands, estoppel, laches, and failure to do equity. Given that Plaintiff is entitled to partition, Defendant’s equitable defenses do not undermine Plaintiff’s prevailing points. They do not raise triable issues of material fact concerning the viability of a partition in kind. Plaintiff has demonstrated as a matter of law that partition by sale is more equitable than a division in kind. Plaintiff is entitled to summary adjudication of Defendant’s equitable defenses.

The LLC alternatively requests a continuance of the hearing to complete discovery relevant to opposing this motion. “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.” (Code Civ. Proc., § 437c, subd. (h).)

Here, the LLC seeks Plaintiff’s discovery responses “related to Hutton, his residency at the Duplex, the reduced market value that his residency has created, and Plaintiff’s role in managing the Hutton Unit.” (Opposition, p. 20:12-24:5.) This discovery is meant to support its “equitable” defense that Mr. Hutton’s tenancy diminishes the value of the property. The court has already considered and rejected this argument. Defendant does not demonstrate how any newly discovered evidence will change the result.

Plaintiff’s motion for summary adjudication of the Defendant’s equitable defenses is GRANTED.

[1] This section is adapted from the unpublished case Caiozzo v. 2672 to 2674 North Beachwood Drive (Cal. Ct. App. Nov. 13, 2023) No. B322219, 2023 WL 748549.

[2] “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.” (Code Civ. Proc., § 872.810.) “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. . . [if] [t]he court determines that, under the circumstances, sale and division of the proceeds would be more equitable than division of the property.” (Code Civ. Proc., § 872.820, subd. (b).)

[3] Civil Code section 4125 defines a “condominium project” as a real property development “consisting of condominiums” and describes a condominium as consisting “of an undivided interest in common in a portion of the real estate coupled with a separate interest in space called a unit” (emphasis added); Civil Code section 4185 dictates that for any boundary such as “walls, floors, or ceilings” that are “designated as boundaries of a separate interest, the interior surfaces” are usually part of the separate interest while all other portions “are part of the common area”; Civil Code section 4500 dictates that normally the common area of a condominium project is owned “as tenants in common, in equal shares, one for each separate interest”; Civil Code section 4610 mandates that “the common area in a condominium project shall remain undivided” except when judicial partition occurs after the project has been damaged or destroyed beyond habitability or has otherwise become “obsolete and uneconomic”; Civil Code section 4630 mandates that any transfer of any sort of an owner’s interest in a condominium project also conveys membership in the association that governs its affairs.

[4] Plaintiff does not submit evidence regarding Hutton’s future living arrangements.