Judge: Michael Shultz, Case: 24STCV10531, Date: 2024-11-14 Tentative Ruling
Case Number: 24STCV10531 Hearing Date: November 14, 2024 Dept: 40
24STCV10531 Ana Maria Caldwell, a Trustee of the Ana Maria
Caldwell Revocable Trust v. Iris Maria Caldwell, a Trustee of the Iris M.
Caldwell Trust
TENTATIVE
ORDER GRANTING REQUEST FOR INTERLOCUTORY JUDGMENT FOR PARTITION BY SALE AND
APPOINTMENT OF REFEREE
This is an action to
partition real property in which the parties own an undivided one-half interest
as tenants in common. The clerk entered default against Defendant on August 23,
2024.
Plaintiff is entitled
to partition real property as a co-owner. (Code Civ. Proc., § 872.210.)
Partition as to concurrent interest in the property “shall be as of right
unless barred by a valid waiver.” (Code Civ. Proc., § 872.710 subd. (b).)
In issuing an
interlocutory judgment for partition, the trial court must determine “the
parties’ interests in the property and issue 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. (Summers v. Superior Court (2018) 24
Cal.App.5th 138, 143.)
Plaintiff submits a
recorded deed transferring her 50 percent interest to her revocable trust. (Ex.
1.) Defendant also transferred her 50 percent interest to her revocable trust.
(Ex. 2.)
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.)
Plaintiff nominates Matthew
L. Taylor whose declaration and curriculum vitae are attached to the motion. The
court has discretion to order the referee to post a bond. (Code Civ. Proc., § 873.010 subd. (b)(1).)
Plaintiff asserts that a $5,000 bond will be posted within four days of the
judgment being entered. (Mot. p. 11.) The
proposed judgment, however, does not include this language.
The manner of sale and
the scope of the referee’s power and authority are provided for in the proposed
judgment. Any encumbrance is to be satisfied from the proceeds of sale. The
referee will manage the property, including demanding and collecting market
rents and is authorized to take possession. Sale will be conducted upon the court’s
approval and confirmation.
Based on the foregoing,
and after hearing from the parties, the court is inclined to GRANT the Request
for Interlocutory Judgment. Plaintiff is
ordered to include language in the proposed judgment that the referee will post
a $5,000 bond. The Referee is ordered to file his first report for approval as
contemplated in the proposed judgment by