Judge Kerry Bensinger, Case Number: 23STCV40958, Date: 2024-04-09 Tentative Ruling

This is a partition action concerning the real property commonly known as 2 Crest Road East, Rolling Hills, County of Los Angeles, California 90274 (the “Property”). The property is owned in equal parts by siblings Cynthia Makin (“Makin”) and George Cashman (“Cashman”), as individuals and co-trustees of the GFC Administrative Trust (the “Trust”).

On December 29, 2022, Makin, in pro per, filed a Verified Complaint for Partition in Kind of Real Property, against Cashman. The Complaint seeks partition in kind of the Property.

On April 28, 2023, Cashman filed a Verified Cross-Complaint, seeking Partition by Sale of the Property, Declaratory Relief, and Accounting.

On March 7, 2024, Makin filed this Motion for Order for Appraisal of Real Property.

Cashman requests judicial notice of four documents. Because the court does not rely on the documents to resolve this motion, the court declines to rule on Cashman’s request.

Makin moves the court for an order for appraisal of the Property. She argues the court must order the appraisal because Cashman’s demand for partition by sale triggers a mandated appraisal under the Partition of Real Property Act (PRPA).

The PRPA is codified at Code of Civil Procedure section 874.311, et seq. Section 874.311 states, in part, “This act applies to real property held in tenancy in common where there is no agreement in a record binding all the cotenants which governs the partition of the property.” (Code Civ. Proc., § 874.311, subd. (b).) “[The PRPA] act applies to actions for partition of real property filed on or after January 1, 2023.” (Code Civ. Proc., § 874.311, subd. (c).)

Code of Civil Procedure section 874.317 further provides: “If any cotenant requested partition by sale, the court shall, after the determination of value under Section 874.316, send notice to the parties that any cotenant except a cotenant that requested partition by sale may buy all the interests of the cotenants that requested partition by sale. (Code Civ. Proc., § 874.317, subd. (a).)

“[The PRPA] applies to real property held in tenancy in common where there is no agreement in a record binding all the cotenants which governs the partition of the property.” (Code Civ. Proc., § 874.311, subd. (b).) Here, it is undisputed that the Property is held as tenants-in-common.[1] Makin and Cashman each hold 3.5% interest in the Property; the remaining 93% interest is held by the Trust. (See Makin Decl., Exs. B, C, D.) It is further undisputed that there is no agreement which governs the partition of the Property.

“[The PRPA] act applies to actions for partition of real property filed on or after January 1, 2023.” (Code Civ. Proc., § 874.311, subd. (c).)

The parties disagree over whether the PRPA applies to this action. Makin argues the PRPA applies because Cashman filed a Cross-Complaint demanding partition by sale on April 28, 2023.

Cashman disagrees. He argues Makin cannot rely on the filing date of the Cross-Complaint because under the doctrine of relation back, the date of Makin’s Complaint—December 29, 2022—controls.[2]

Makin misconstrues the relation back doctrine. “Under the relation-back doctrine, in order to avoid the statute of limitations, the amended complaint must: rest on the same general set of facts as the general complaint, refer to the same accident and same injuries as the original complaint, and refer to the same instrumentality as the original complaint. [Citation.]” (Scholes v. Lambirth Trucking Co. (2017) 10 Cal.App.5th 590, 597-598, emphasis added.) In other words, the relation back doctrine functions to make timely a claim that would otherwise be untimely. As Makin correctly points out a cross-complaint is a separate action. “A cross-complaint is a separate pleading, based on an independent cause of action. It must be drawn with the same completeness and sufficiency of allegations as the complaint on an independent cause of action.” (Wilson, McCall & Daoro v. American Qualified Plans, Inc. (1999) 70 Cal.App.4th 1030, 1036.) By filing a cross-complaint for partition (by sale, no less), Cashman triggered the mandatory appraisal provision under the PRPA. For this reason as well as those argued by Makin, the PRPA applies and requires an appraisal.

The motion is GRANTED. If the parties cannot agree on the value of the Property, or on an appraiser, the parties are each to submit a list of three (3) disinterested real estate appraisers, with their respective resumes, who are licensed in the State of California. The court will appoint an appraiser from the parties’ list. The court sets a Status Conference re: Appraisal under CCP Section 874.316 for May 3, 2024 at 9:00 AM.

Kerry Bensinger

Judge of the Superior Court

[1] “An interest in common is one owned by several persons, not in joint ownership or partnership.” (Civ. Code, § 685.)

[2] Cashman further argues the Uniform Partition of Heirs Property Act (“UPHPA”) applies to this action. Makin argues that appraisal of the Property would still be mandatory under the UPHPA. Because the court concludes the PRPA applies as discussed herein, the court, while inclined to agree with Makin, does not address this alternative argument.