Judge Lee W. Tsao, Case Number: 23NWCV00949, Date: 2024-02-06 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV00949, Date: 2024-02-06 Tentative Ruling

Case Number: 23NWCV00949 Hearing Date: February 6, 2024 Dept: C

Silva vs. Silva, et al.

Case No.: 23NWCV00949

Hearing Date: February 6, 2024 @ 10:30 AM

Tentative Ruling

Plaintiff Angelo Silva’s Motion for Interlocutory Judgment of Partition and Appointment of Referee is GRANTED.

Moving party to give notice.

Background

This action seeks a partition by sale of the single-family residence located at: 13024 Lefloss Ave, Norwalk, CA 90650, APN: 8050-013-004 (the "Property"). This motion seeks to resolve this co-ownership dispute by appointing experienced partition referee Matthew L. Taylor, Esq. to market and sell the Property.

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.)¿¿¿

Discussion

Plaintiff’s motion asks the Court to enter interlocutory judgment of partition and appointment of referee Matthew L. Taylor with regard to the sale of a single-family residence located at:13024 Lefloss Ave, Norwalk, CA 90650, APN: 8050-013-004. Plaintiff contends that the parties hold title to the property in tenants in common. (Complaint ¶ 4.) Plaintiff attaches a copy of the grant deed to the complaint reflecting the tenancy in common. (Complaint Exh. 2.)

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.) ¿

On July 26, 2023, the Court signed a stipulation between parties to partition by sale of real property and appointment of referee.

Only one Defendant, Michael Silva, is opposed to the sale. Defendant Silva has been found to be in default on June 26, 2023. No opposition to Plaintiff’s Motion has been received as of February 2, 2024.

Pursuant to the Court’s Order dated July 26, 2023 approving the stipulation of the joining Defendants, Plaintiff’s Motion for Interlocutory Judgment of Partition and Appointment of Referee is GRANTED.