Judge: Loren G. Freestone, Case: 37-2023-00009995-CU-OR-CTL, Date: 2023-11-17 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 16, 2023

11/17/2023  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  Other Real Property Summary Judgment / Summary Adjudication (Civil) 37-2023-00009995-CU-OR-CTL BENZONI VS BONACINA [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Plaintiff Gianmario Benzoni's motion for summary adjudication on his first cause of action for partition of real property is GRANTED.

Preliminary Matters Benzoni's evidentiary objections to the declaration of Defendant Paola Bonacina are sustained in part and overruled in part. The objections are not numbered consecutively as required. (Cal. Rules of Court, rule 3.1354(b).) Accordingly, the court references each objection based on the order in which they appear.

Sustained: 1, 2, 3, 4, 5, 6, 7, 8, 9.

Overruled: 10, 11, 12, 13, 14, 15, 16, 17.

Analysis Tenants-in-common generally have a statutory right to partition. (See Code Civ. Proc., § 872.710, subd.

(b).) 'Partition 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.' (LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 493.) Bonacina does not dispute that she and Benzoni are tenants-in-common, each with a 50% interest in the Solana Beach home. Bonacina also does not dispute that to the extent Benzoni has a right to partition, that a partition by sale of the single-family home is preferable to a partition in kind. Nor does Bonacina dispute that Richardson Griswold is capable of serving as referee. Rather, Bonacina's only argument is that Benzoni waived the right to seek partition in the parties' marital settlement agreement.

The right to partition is not absolute, and it 'may be waived by contract, either express or implied.' (LEG, supra, 183 Cal.App.4th at p. 493; see Code Civ. Proc., § 872.710, subd. (b).) An express waiver is found where a contractual term specifically 'mention[s] either partition or waiver.' (LEG, supra, 183 Cal.App.4th at p. 494.) An implied waiver is found where 'the contractual obligations are manifestly Calendar No.: Event ID:  TENTATIVE RULINGS

2998374  45 CASE NUMBER: CASE TITLE:  BENZONI VS BONACINA [IMAGED]  37-2023-00009995-CU-OR-CTL inconsistent with partition' and a partition would 'disrupt the scheme of the contract.' (Penasquitos, Inc.

v. Holladay (1972) 27 Cal.App.3d 356, 358–359; see, e.g., Schwartz v. Shapiro (1964) 229 Cal.App.2d 238, 253 [party could not seek partition until after discharging contractual obligation to first offer to sell to co-owner]; LEG, supra, 183 Cal.App.4th at pp. 493–497 [similar].) This rule applicable to implied waivers 'has been often applied where property by agreement of the cotenants was set aside for occupancy of one of them during the existence of certain conditions, for a period of time or for his life. The courts have held that under such circumstances there is an implied agreement on the part of the other party waiving the right of partition.' (Pine v. Tiedt (1965) 232 Cal.App.2d 733, 738–739.) For example, in Miranda v. Miranda (1947) 81 Cal.App.2d 61, the parties' marital settlement agreement provided, among other things, that (1) the wife would 'have the right to the exclusive use and occupation of the family home . . . so long as she does not re-marry', (2) the property 'shall remain in the names of the parties hereto as 'joint tenants' so long as [wife] does not remarry and as long as said property is occupied by [wife] as a home for herself and the children of the parties,' and (3) 'if [wife] shall thereafter enter into another marriage then said property shall be sold.' (Id. at p. 64.) The court held that the agreement constituted 'a restriction upon the rights of the parties to partition the property so long as these conditions exist, and constitute[d] a waiver of the right of either party to a partition during the prescribed period.' (Id. at p. 68.) As the wife still occupied the home with her minor children and had not remarried, there was no right to partition.

Similarly, in Nazzisi v. Nazzisi (1962) 203 Cal.App.2d 121, the parties' marital settlement agreement provided that the 'property shall henceforth be held as tenants in common, and that husband shall have the right to reside on the said property during his lifetime and he shall be responsible for all maintenance and repairs upon the said property during his lifetime.' (Id. at pp. 122–123.) The wife argued that this provision only granted the husband the right to reside on the property until an action in partition was filed, but the court disagreed and interpreted it as granting the husband 'an additional contractual right to reside on the premises for life.' (Id. at pp. 123–124.) The husband was still alive living at the property, so the wife had no right to partition.

In determining whether there has been an implied waiver, and the scope of any such waiver, consideration must be given to the purpose of the contractual provisions at issue. (See LEG, supra, 183 Cal.App.4th at p. 496; Miranda, supra, 81 Cal.App.2d at p. 66–67.) If the purpose would not be frustrated by a partition, then there is no implied waiver. (LEG, supra, 183 Cal.App.4th at p. 496.) Moreover, perpetual implied waivers of the right to partition are disfavored, and if a contract is ambiguous, the interpretation 'consistent with unencumbered use and alienation of the property is to be preferred.' (Id. at pp. 496–497 [refusing to construe right of first refusal as an 'absolute' waiver of the right of partition]; accord Miranda, supra, 81 Cal.App.2d at p. 67 [interpreting implied waiver to not exist 'beyond the minority of the two children'].) When there is no competent extrinsic evidence, or where competent extrinsic evidence is not in conflict, the interpretation of a marital settlement agreement is an issue of law for the court. (See Welch v. Welch (2022) 79 Cal.App.5th 283, 296; In re Marriage of Iberti (1997) 55 Cal.App.4th 1434, 1439.) Here, the parties' marital settlement agreement does not expressly waive Benzoni's right to partition.

The words 'waiver' and 'partition' do not appear in the agreement. Nor do the words 'exclusive' or 'sole' appear in the agreement, despite Bonacina's use of such terms in her opposition. Bonacina notes that the agreement states that '[i]n the event the parties mutually decide to sell the Residence,' the net proceeds of the sale shall be equally divided between them. Critically, however, the agreement does not state that the property can only be sold upon the mutual agreement of the parties. Any waiver must be implied.

Similar to Miranda and Nazzisi, the parties agreed that title would be held as tenants-in-common and that Bonacina would have 'exclusive use and possession of the Residence during the holding period that expires one year after Husband retires from his current employment.' The parties also agreed that Calendar No.: Event ID:  TENTATIVE RULINGS

2998374  45 CASE NUMBER: CASE TITLE:  BENZONI VS BONACINA [IMAGED]  37-2023-00009995-CU-OR-CTL neither would 'increase or decrease his or her ownership share in the Residence during the holding period that expires one year after Husband retires from his current employment.' Other parts of the agreement indicate that the purpose of these provisions was to ensure Bonacina had a place to live for well-under market rent until Benzoni retired and she began receiving her share of his retirement. These provisions impliedly waived Benzoni's right to partition until one year after he retired. However, it is undisputed that Benzoni retired more than a year ago. Thus, unlike Miranda and Nazzisi, the purpose of these provisions has been fulfilled, a partition would not disrupt the contractual scheme, and any such implied waiver has now expired.

Similar to Schwartz and LEG, the parties also agreed that either 'may sell or assign her or his interest in the Residence after the elapse of the one-year anniversary of the date that Husband will have retired from employment at the University of California at San Diego,' but pursuant to a particular procedure.

The parties agreed that Bonacina 'shall' have the right to sell or assign her interest within 30 days after the one-year anniversary. If Bonacina elects not to exercise that right, then Benzoni 'shall' have the right to sell or assign his interest within 60 days after the one-year anniversary. If neither party timely exercises those rights, then either party 'may' thereafter sell their interest upon notice to the other. The apparent purpose of these provisions was to provide an opportunity for the orderly disposition of individual interests, with Bonacina having priority, before allowing the parties to choose to do what they want with their interests. Arguably, these provisions impliedly waived Benzoni's right to partition from the one-year anniversary of his retirement until 60 days thereafter. But it is undisputed Benzoni retired more than one year and 60 days ago and Bonacina was given the opportunity to exercise her right. Thus, unlike Schwartz and similar to LEG, the purpose of these provisions has been fulfilled, a partition would not disrupt the contractual scheme, and any such implied waiver has now expired.

Finally, as noted above, the agreement states that '[i]n the event the parties mutually decide to sell the Residence, the net proceeds of the sale shall be equally divided between the parties.' The purpose of this provision is apparently to ensure the value of the home is distributed in accordance with each party's 50% interest. A partition will not 'disrupt the scheme of the contract' because this provision only applies when the parties mutually agree to sell the property. The contract does not set forth a procedure for when the parties do not agree. Nor is this provision 'manifestly inconsistent with partition.' When there is a partition by sale, the proceeds are 'divided among the parties in accordance with their interests in the property' (Code Civ. Proc., § 872.820), which is essentially what this provision in the agreement contemplates. Thus, this provision does not impliedly waive the right to partition.

Bonacina apparently interprets the marital settlement agreement as waiving the right of partition in perpetuity. Such an interpretation is both disfavored and unsupported for the reasons set forth above.

Bonacina also asserts that, '[a]lternatively, there is a triable issue of fact as to whether Plaintiff is entitled to partition under these facts.' 'Provided it supports a meaning to which the language is reasonably susceptible, extrinsic evidence is admissible to prove the parties' intent as to ambiguous terms in a marital settlement agreement.' (Marriage of Iberti, supra, 55 Cal.App.4th at p. 1439.) Here, the extrinsic evidence Bonacina submits is the following paragraph in her declaration: 'It was the mutual intent of the parties to the MSA (me and Plaintiff) that the house would not be sold unless and until both parties agreed to the sale. That is why the above-referenced provisions in paragraphs 12 and 14 were drafted as they were, to prohibit the forced sale or partition of the property by one party.' This is not competent evidence, which is why Benzoni's evidentiary objections 5 and 6 were sustained.

The paragraph is completely lacking foundation, in two material respects. First, how does Bonacina know what Benzoni's intended? Second, did Bonacina ever communicate her purported intentions? A declaration regarding one contracting party's intent, which does not indicate whether such intent was communicated to the other contracting party, is not competent extrinsic evidence. (Salehi v. Surfside III Condominium Owners' Assn. (2011) 200 Cal.App.4th 1146, 1159.) As there is no competent extrinsic evidence, much less any conflict in extrinsic evidence, the issue remains one for the court.

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2998374  45 CASE NUMBER: CASE TITLE:  BENZONI VS BONACINA [IMAGED]  37-2023-00009995-CU-OR-CTL Conclusion The motion for summary adjudication is granted.

Benzoni has submitted a proposed interlocutory judgment for a partition by sale. Bonacina has not objected to it. Accordingly, the court will sign the interlocutory judgment.

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