Judge: Nathan Vu, Case: 2022-01268493, Date: 2022-10-17 Tentative Ruling

Please Note: The hearing on this matter has been changed to 8:30 A.M.

Motion for Entry of Interlocutory Judgment

Plaintiffs Devin Riley’s and Erin Riley Murphy’s motion for entry of interlocutory judgment for partition by sale and appointment of referee is DENIED without prejudice.

Plaintiffs Devin Riley and Erin Riley Murphy move for entry of interlocutory judgment for partition by sale and appointment of referee.

Partition is an equitable action that is governed by statute. (See Civil Proc. Code, §§ 872.010 et seq.) Pursuant to the Civil Procedure Code, property may be partitioned by physical division, sale of the property and division of the proceeds, or court approved and supervised partition by appraisal. (Civil Proc. Code, §§ 873.210-290, 873.510-850, & 873.910-980.)

The law states that “[a]t the trial, the court shall determine whether the plaintiff has the right to partition.” (Civil Proc. Code, § 872.710. subd. (a).) 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. (Civil Proc. Code, § 872.720(a).)

Thereafter, the court shall order that the property be divided in accordance with the parties’ interests as determined in the interlocutory judgment. (Civil Proc. Code, § 872.810.) If the court orders sale, the court shall appoint a referee to divide and sell the property. (Civil Proc. Code, §§ 872.010 & 873.020.)

This statutory scheme envisions that an interlocutory judgment of partition shall not be entered until after the court determines the interests of the parties in the property and that plaintiffs are entitled to partition. (See Civil Proc. Code, § 872.720(a); see also Summers v. Superior Court (2018) 24 Cal.App.5th 138, 143-144 [court cannot order partition sale prior to resolving the parties’ respective ownership interest in property].)

The Civil Procedure Code specifically states that this determination can be made “at trial”. (Civil Proc. Code, § 872.810.) It appears that the court may also make this determination in the other ways that determinations underlying a judgment are normally made – such as by motion for summary judgment or by default proceedings. (See LEG Investments v. Boxler (2010) 183 Cal. App. 4th 484 [reversing denial of summary judgment and ordering trial court to grant plaintiff’s motion for summary adjudication on partition cause of action].)

Here, there has been no trial nor have Plaintiffs’ filed a motion for summary judgment. Plaintiffs have requested entry of default against Defendant Bryan Keith Riley, but have not submitted a request for entry of default judgment or a default package.

The court will therefore deny the motion without prejudice. Although this motion is premature, Plaintiffs may be able to obtain entry of an interlocutory judgment in the future through one of the methods mentioned or through another method.

Plaintiffs shall give notice of this ruling.