Judge Lynne M. Hobbs, Case Number: 22STCV16061, Date: 2024-09-12 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 22STCV16061, Date: 2024-09-12 Tentative Ruling

Case Number: 22STCV16061 Hearing Date: September 12, 2024 Dept: 61

21326 VENTURA, LLC vs SUMMITRIDGE REALTY, LLC

TENTATIVE

Plaintiff 21326 Ventura, LLC’s Motion for Summary Adjudication is CONTINUED pending resolution of the sale evidenced in the letter of intent attached as Exhibit 1 to the declaration of Robert Greenfield.

Clerk to calendar.

Plaintiff to provide notice.

DISCUSSION

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)

Thursday, September 12, 2024

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).) Plaintiffs moving for summary judgment may meet their initial burden by “prov[ing] each element of the cause of action entitling the party to judgment on the cause of action.” (Code Civ. Proc. § 437c(p)(1).)

Once the plaintiff has met that burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Code Civ. Proc. § 437c(p)(1).) The defendant may not rely upon the mere 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 that cause of action or a defense thereto. (Code Civ. Proc. § 437c(p)(1).) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Plaintiff 21326 Ventura, LLC (Plaintiff) seeks summary adjudication of its first cause of action for partition, based on the contention that there is no dispute as to Plaintiff’s and Defendant Summitridge Realty, LLC’s (Defendant) ownership shares in the real property at issue, and on the grounds that partition by sale would reduce prejudice to the parties and the property. (Motion at pp. 2–3.)

Plaintiff’s motion is ill-framed. Although it seeks summary adjudication in Plaintiff’s favor on the first cause of action for partition, the evidence and grounds proffered by Plaintiff would justify only an interlocutory partition under Code of Civil Procedure § 872.720, not full adjudication of the first cause of action.

“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).)

“ ‘[P]artition’ is ‘the procedure for segregating and terminating common interests in the same parcel of property.’ ” (14859 Moorpark Homeowner's Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1404-1405, 74 Cal.Rptr.2d 712.) 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.” ’ ” (Cummings, supra, 13 Cal.App.5th at p. 596, 220 Cal.Rptr.3d 463.)

The governing statute is section 872.720. Subdivision (a) declares that “[i]f 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.” (§ 872.720, subd. (a).) The order of partition “shall order that the property be divided among the parties in

accordance with their interests as determined in the interlocutory judgment.” (§ 872.810.) Section 872.720, subdivision (b), allows the court to issue sequential interlocutory judgments for original concurrent and successive owners if the court determines that it “is impracticable or highly inconvenient to make a single interlocutory judgment that determines, in the first instance, the interest of all the parties in the property.” (§ 872.720, subd. (b).)

When the trial court “determines the interests of the parties in the property and orders the partition of the property,” it shall decide the manner of partition “unless [this] is to be later determined.” (§ 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.” (Cummings, supra, 13 Cal.App.5th at p. 597, 220 Cal.Rptr.3d 463; § 872.820.)

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 v. Superior Court (2018) 24 Cal.App.5th 138, 142–143.)

Plaintiff’s motion does not discuss the above authority and does not seek an interlocutory judgment in those terms. It may be granted, however, that if Plaintiff’s motion is construed as one for an interlocutory judgment of partition under the above authority, Plaintiff has made a prima facie showing of entitlement to that relief.

But this determination is complicated by matters raised in Defendant’s opposition, specifically by evidence that the parties have already agreed to a letter of intent to sell the property at issue to a third party, as of August 23, 2024. (Greenfield Decl. Exh. 1.) Defendant contends that this agreement renders the motion moot, as the parties have already agreed to sell the property, and furthermore that Plaintiff has waived the right to judicial partition. (Opposition at pp. 4–5.)

Defendant’s argument as to waiver and mootness are not persuasive. “[T]he right of partition may be waived by contract, either express or implied.” (American Medical International Inc. v. Feller (Feller) (1976) 59 Cal.App.3d 1008, 1014.) As discussed in the Feller case, partition was found to be waived in the following circumstances:

· Where a property was jointly owned by a couple, where the party seeking partition had previously agreed to allow the property to remain as a family home for one spouse and their children for a set duration. (Id. at p. 1014, citing Miranda v. Miranda (1947) 81 Cal.App.2d 61);

· Where one co-owner had agreed not to sell his interest without giving his co-owner the first option to purchase (Feller, supra, 159 Cal.App.3d at p. 1014, citing Schwartz v.

Shapiro (1964) 229 Cal.App.2d 238);

· “[W]here cotenants agreed to a plan designed to develop property over a period of time (Thomas v. Witte (1963) 214 Cal.App.2d 322, 29 Cal.Rptr. 412) or invested in property which was subject to a long-term lease with a view toward obtaining a secure source of investment income (Pine v. Tiedt (1965) 232 Cal.App.2d 733, 43 Cal.Rptr. 184).Save to Folder.” (Feller, supra, 59 Cal.App.3d at p. 1015.)

Plaintiff here has not waived the right to partition, as the above examples involved enforceable contracts, while the letter of intent executed while this motion was pending is expressly “not intended to be a binding commitment.” (Greenfield Decl. Exh. 1, ¶ 10.) For much the same reason, the motion is not moot, as Plaintiff maintains a right to partition until it is waived, or until Plaintiff no longer owns an interest in the property.

However, Defendant’s argument for a continuance of the motion is persuasive. There is little to be gained by the expenditure of judicial resources on partition proceedings where the parties have already come to an informal agreement as to the disposition of the property. Further proceedings on this cause of action while such an agreement resolves risk wasting judicial resources and potentially interfering with the transaction now in motion.

Accordingly, the motion is CONTINUED pending resolution of the sale evidenced in the letter of intent attached as an exhibit to the declaration of Robert Greenfield.