Judge Kerry Bensinger, Case Number: 23STCV14971, Date: 2023-12-22 Tentative Ruling

On June 27, 2022, Plaintiff, Steve K. Lopez, filed a verified complaint against Defendant, Mai Thai, for partition by sale of real property located at 1114, 1114 ½, and 1116 S. Kern Ave., Los Angeles, CA 90022 (the “Subject Property”).

On November 8, 2023, Plaintiff filed this motion for interlocutory judgment of partition and for appointment of a referee.

This motion was heard on December 22, 2023. Defendant did not file written opposition. The court issued a tentative order granting Plaintiff’s motion. At the hearing, Defendant appeared and represented to the court that she would seek counsel to appear in this action. The court continued the motion to allow Defendant time to obtain counsel and to oppose the motion.

On January 17, 2024, while still in default, Defendant filed an opposition to this motion as a self-represented litigant.

On January 25, 2024, Plaintiff and Defendant appeared for the hearing on this motion. At the hearing, Plaintiff agreed to set aside the default.

“Under California law, the term ‘partition’ signifies ‘the procedure for segregating and terminating common interests in the same parcel of property.’¿ [Citation.]”¿ (14859 Moorpark Homeowner’s Ass’n v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1404-1405 (Moorpark).)¿ Code of Civil Procedure, Part 2, Title 10.5 governs actions for partition of real property.¿ (Code Civ. Proc., § 872.020.)¿¿¿

“A co-owner of real or personal property may bring an action for partition.¿ (Code Civ. Proc., § 872.210.)¿ The primary purpose of a partition suit is … to partition the property, that is, to sever the unity of possession.¿ Partition is a remedy much favored by the law.¿ The original purpose of partition was to permit co-tenants 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.¿ [A]lthough the action of partition is of statutory origin in this state, it is nonetheless an equitable proceeding ….¿[Citations.]”¿(Cummings v. Dessel (2017) 13 Cal.App.5th 589, 596-597.)¿

Plaintiff now moves the court for an interlocutory judgment for partition by sale of the Subject Property and appointment of a referee, pursuant to Code of Civil Procedure, sections 872.710 and 872.720, subdivision (a). Plaintiff contends that he is entitled to an interlocutory judgment to partition the Subject Property as a matter of law.¿ (Mot, 6-8.)

Defendant argues the motion should be denied because the court may only enter interlocutory judgment after trial.

Defendant’s argument has merit. Section 872.710, subdivision (a) states: “At the trial, the court shall determine whether the plaintiff has the right to partition.”¿ (Code Civ. Proc., § 872.710, subd. (a).)(emphasis added)¿ “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).)¿ Viewed together, sections 872.710, subdivision (a) and 872.720, subdivision (a) 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.¿¿¿

In reply, Plaintiff argues a trial is not always required.[1] But Plaintiff’s cited authority tends to support the view that a party seeking an interlocutory judgment directing partition must as least file a dispositive motion, such as a motion for summary adjudication (see LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 497-98 [summary adjudication on partiion by sale cause of action]) or judgment on the pleadings (see White v. White (1936) 11 Cal.App.2d 570, 570 [interlocutory judgment on the pleadings]). However, Plaintiff’s motion does not fall into either category.

Plaintiff further argues that an interlocutory judgment for partition is proper because the elements for such a judgment have been met and have not been disputed by Defendant. Specifically, (1) Plaintiff and Defendant are joint tenants with an equal interest in the Subject Property; (2) Plaintiff did not waive his right to partition; and (3) partition by sale is required where, as here, the property cannot be split into parcels of equivalent value. Plaintiff may be correct, however, none of the foregoing elements were proven by way of a dispositive motion.

The motion for interlocutory judgment by partition is DENIED. The court will discuss setting a trial date with counsel.

Kerry Bensinger

Judge of the Superior Court

[1] Some of Plaintiff’s arguments raised in reply are premised on Defendant’s prior defaulted status. However, as Plaintiff agreed to set aside the default, those arguments are no longer persuasive.