Superior Court of California

County of Los Angeles

SUZANNE M. EMERSON, et al.;

Plaintiffs,

vs.

JEFFREY L MARTIN, et al.;

Defendants.

Case No.: 22STCV27993

DEPARTMENT 45

[TENTATIVE] RULING

Action Filed: 08/29/22

Trial Date: 07/29/24

Hearing Date: March 12, 2024

Moving Party: Plaintiffs Suzanne Emerson and Austin J. Cook

Responding Party: None

Motion for Interlocutory Judgment of Partition by Sale and Appointment of Referee

The court has considered the moving papers. No opposition was received.

The court GRANTS the motion for interlocutory judgment of partition by sale and appointment of referee.

Background

On August 29, 2022 Plaintiffs Suzanne M. Emerson and Austin J. Cook (collectively, “Plaintiffs”) filed this action against Defendant Jeffrey L. Martin (“Martin”) for (1) partition (CCP § 872.230), (2) breach of contract, (3) fraud, (4) conversion, and (5) theft (Penal Code § 496(c)). On December 4, 2023, Plaintiffs substituted Select Portfolio Servicing, Inc. for Doe 1.

On November 6, 2023, Plaintiffs filed the instant unopposed motion.

Legal Standard

The procedure of a partition actions is as follows: (1) determine whether the plaintiff has an interest in the property sufficient to maintain a partition action (CCP § 872.710); (2) determine whether the plaintiff has waived their right to partition (CCP § 872.710(b)); (3) entry of an interlocutory judgment of partition (CCP § 872.720(a)) and determination of the manner of partition; (4) appointment of a referee to divide or sell the property (CCP § 873.010(a)); (5) the referee sells the property (CCP §§ 873.670, 873.680); and (6) the referee delivers a report and the Court confirms the sale (CCP §§ 873.710, 873.720(b), 873.730(a) and 873.790(a)).

Discussion

This is a statutory action for the partition of real property filed pursuant to the Uniform Partition of Heirs Property Act, CCP § 874.311 et seq., and Title 10.5 of Part 2 of the Code of Civil Procedure. Under California law, “ordinarily, if the party seeking partition is shown to be a tenant in common, and as such entitled to the possession of the land sought to be partitioned, the right is absolute.” (Bacon v. Wahrhaftig (1950) 97 Cal.App.2d 599, 603, quoting Priddel v. Shankie (1945) 69 Cal.App.2d 319, 325. See also CCP § 872.710(b) (“partition as to concurrent interests in the property shall be as of right”).)

Plaintiffs each have a 33.33% interest in the property as a tenant in common with Defendant, who has the other 33.33% interest in the property. (Emerson Decl., ¶4, Cook Decl., ¶4, Exh. A.) The Simple Revocable Transfer on Death (TOD) Deed clearly states that the three parties are tenants in common and Defendant has admitted the parties’ respective interests in his Answer. (Ibid.; see also 11/1/22 Answer.) Therefore, the court finds that Plaintiffs have a sufficient interest in the property to maintain a partition action. Additionally, there is no indication that Plaintiffs have waived their right to partition the property, having simply owned the property since receiving their interest in the property by way of inheritance.

The court does not see any reason to not enter an interlocutory judgment of partition. Defendant has not opposed the motion. Further, partition by sale would be the best method by which to divide the property in this case, considering the improvements upon the property and the fact that Defendant is occupying the whole property.

Accordingly, the court GRANTS Plaintiff’s motion for interlocutory judgment of partition. As requested by Plaintiffs, Stephen Bethel is appointed as referee for the sale of the property.

It is so ordered.

Dated: March 12, 2024

_______________________

ROLF TREU

Judge of the Superior Court