Judge: Michael Shultz, Case: 23STCV11232, Date: 2025-01-30 Tentative Ruling

Case Number: 23STCV11232    Hearing Date: January 30, 2025    Dept: 40

23STCV11232 Kim Darden v. Dorothy Terry Darden, Trustee of Dorothy T. Darden Living Trust

Thursday, January 30, 2025

 

[TENTATIVE] ORDER GRANTING MOTION FOR INTERLOCUTORY JUDGMENT FOR PARTITION BY SALE

 

                                                                                              I.         BACKGROUND

      The verified complaint alleges that Plaintiff is the daughter of Edwin Darden (“Edwin”) who died on December 18, 2020. At the time of his death he was married to Dorothy Terry Darden (“Dorothy”). On an unknown date prior to 2015, Edwin and Dorothy bought real property (the “Property”). On May 14, 2015, Edwin and Dorothy transferred their interests in the property as tenants in common by quit claim deed. On the same day, Edwin transferred his interest in the property to his living trust dated July 11, 2002 (“Edwin Trust.”) Likewise, Dorothy transferred her interests to her living trust dated July 1, 2002 (“Dorothy Trust.)

      Plaintiff alleges that Edwin passed away on December 18, 2020, leaving Plaintiff as the successor trustee pursuant to the terms of the Edwin Trust, which named Plaintiff as Edwin’s sole beneficiary. On November 16, 2021, Plaintiff, as successor trustee of the Edwin Trust, transferred the Edwin Trust’s interest in the real property to herself by quit claim deed. Plaintiff recorded an Affidavit of Death of Trustee on January 5, 2022. Plaintiff claims she owns an undivided 50 percent interest in the real property and seeks a partition of the property by sale as Defendant refuses to sell the property.

      Plaintiff alleges a claim for partition and for attorney’s fees and costs. Plaintiff filed a notice of pendency of action on July 5, 2023, as required by statute. (Code Civ. Proc., § 872.250.)

                                                                                                 II.        ARGUMENT

      Plaintiff  filed this motion on December 10, 2024, and requests partition by sale of the real property for the common benefit of both parties. Plaintiff contends there is no dispute that both parties have an undivided one-half interest in the real property. Plaintiff asks for an order to sell the property. Plaintiff timely served the motion on Defendant, who did not file an opposition.

                                                                                       III.       LEGAL STANDARDS

      An interlocutory judgment in a partition action includes two elements: “a determination

of the parties’ interests in the property and an order granting the partition [citation omitted].  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." (Summers v. Superior Court (2018) 24 Cal.App.5th 138, 143.) Partition as to concurrent interests in the property “shall be as of right unless barred by a valid waiver.” (Code Civ. Proc., § 872.710 subd. (b).)

      The court shall “upon adequate proof, ascertain the state of the title to the property.” (Code Civ. Proc., § 872.620.) If the court finds that the plaintiff is entitled to partition, the court “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(a).) The court “shall appoint a referee to divide or sell the property as ordered by the court.” (Code Civ. Proc., § 873.010.) The referee may perform any acts necessary to exercise the authority conferred by statute or Court order. (Code Civ. Proc., § 873.060.)

                                                                                                IV.       DISCUSSION

       The evidence submitted by Plaintiff establishes the following:

1.     December 14, 2013: Edwin and Dorothy as husband and wife, signed a deed granting the real property to both of them as joint tenants. (Ex. A.)

2.     On June 17, 2015, Edwin and Dorothy as husband and wife as joint tenants and by quit claim deed, transferred to Edwin an undivided 50 percent interest and to Dorothy, an undivided 50 percent interest in the real property as tenants in common. (Ex. B.)

3.     On the same date, Edwin, as a tenant in common, granted by quitclaim deed, his fifty percent interest to his living trust . (Ex. C.)

4.     Also on the same date, Dorothy, as a tenant in common, granted her fifty percent interest by quitclaim deed to her living trust. (Ex. D.)

5.     On January 5, 2022, Plaintiff recorded an Affidavit of Death of Edwin Frank Darden as Trustee of the Edwin Darden Living Trust. (Ex. E.)

6.     On February 2, 2022, Plaintiff, as successor trustee, transferred Edwin’s 50 percent interest to herself by quit claim deed.

      A feature of a joint tenancy is the right of survivorship; when one joint tenant dies, the entire estate belongs to the remaining joint tenant. (Estate of Mitchell (1999) 76 Cal.App.4th 1378.) The parties severed their tenancy and became tenants in common, which extinguishes the right of survivorship and grants to each tenant an undivided half interest in the property. (Id.; Civ. Code, § 683.2; Civ. Code, § 685.)

                                                                                               V.        CONCLUSION

      Defendant has not opposed the motion. Accordingly, the court GRANTS the petition and determines that Plaintiff owns a 50 percent interest in the real property, and Defendant owns a 50 percent interest in the property as tenants in common. The court will hear from the parties with respect to the manner of partition.