Judge: Nathan Vu, Case: 30-2021-01232701, Date: 2023-07-17 Tentative Ruling

Motion for Interlocutory Judgment of Partition

Plaintiff Lisa Lee’s Motion for Interlocutory Judgment of Partition as to the Modena Property is DENIED without prejudice.

Defendants Alfred J. Lee and Sofia S. Lee’s Request for Judicial Notice is GRANTED. (Evid. Code, § 452, subd. (d).)

Plaintiff Lisa Lee moves for entry of an interlocutory judgment of partition with respect to the Modena Property.

Standard for Partition

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

The interests of the parties (plaintiffs as well as defendants) may be put in issue, tried, and determined in a partition action. (Code Civ. Proc., § 872.610.) To the extent necessary to grant relief, the court “shall upon adequate proof ascertain the state of the title to the property.” (Code Civ. Proc., § 872.620.) Similarly, the court is to determine the status and priority of liens. (Code Civ. Proc., § 872.630.)

Whether the plaintiff has the right to partition shall be determined at trial. (See Code Civ. Proc., § 872.710, subd. (a) [“At the trial, the court shall determine whether the plaintiff has the right to partition.”].) 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. (Code Civ. Proc., § 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. (Code Civ. Proc., § 872.810.) If the court orders sale, the court shall appoint a referee to divide and sell the property. (Code Civ. Proc., § §872.010, 873.020.)

This statutory scheme envisions that the interlocutory judgment of partition will be issued after trial or after summary judgment. (See Bacon v. Wahrhaftig (1950) 97 Cal.App.2d 599, 603 [“No partition can be had until the interests of all the parties have been ascertained and settled by a trial.”]; LEG Investments v. Boxler (2010) 183 Cal. App. 4th 484 [reversing denial of, and ordering trial court to grant, plaintiff’s motion for summary adjudication on partition cause of action].)

Even where a partition occurs by sale (rather than division), the distribution of funds requires an interlocutory judgment. (See Code Civ. Proc., § 872.720; see also Code Civ. Proc., §§ 872.810, 872.820 [property and proceeds to be divided in accordance with their respective interests in the property].) The distribution of funds thus cannot occur until the matter has been tried and the court makes a determination of each party’s interest. (See 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].)

Entry of Interlocutory Judgment on the Modena Property

Plaintiff argues that an interlocutory judgment of partition should be entered as to the Modena Property because there is no dispute that Plaintiff has a 90% ownership interest and Defendants have 10% ownership interest in the property.

However, the ownership interests of the parties in the Modena Property is undisputed. While Defendants Alfred J. Lee and Sophia S. Lee admit in their Answer that title to the Modena Property is held by Plaintiff as to an undivided 90% interest, they do not admit that Plaintiff is entitled to 90% of the net proceeds from the sale. (See Answer, ¶ 19.) For example, Defendants allege in their Cross-Complaint and present evidence that they gave Plaintiff around $600,000 to use as a down payment for the purchase of the Modena Property, such that they have at least a 10% ownership interest in the Modena Property. (See Cross-Complaint, ¶ 8; Decl. of Shannon Marie Jenkins, Esq. [Jenkins Decl.], Exh. A, p 2 [Declaration of Sofia S. Lee], Exh. B [Form Interrogatory nos. 15.1, 17.1].)

Further, Plaintiff’s argument is premised on the Grant Deed for the Modena Property dated May 21, 2012 (Grant Deed), which has not been authenticated. (See Mot. for interlocutory Judg. as to the Modena Property, Exh. 2.) The moving papers do not include a declaration laying a foundation for and authenticating the Grant Deed. Instead, the Grant Deed is attached to the motion itself, which is the argument of counsel and not evidence. (See In re Marriage of Pasco (2019) 42 Cal.App.5th 585, 592 [arguments of counsel are not evidence]; DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 683 [counsel’s unsworn statements not evidence].)

Further, even if the Court considered the Grant Deed, it is but one item of evidence to be considered by the court in determining the parties’ respective interests in the Modena Property. (See Kershman v. Kershman (1961) 192 Cal.App.2d 23, 26; Cosler v. Norwood (1950) 97 Cal.App.2d 665, 666.) The Grant Deed thus is not dispositive of the issue, which must be decided at trial or by motion for summary judgment.

In this case, the court has ordered that a referee be appointed to hear testimony and provide a report on the above issues. The court cannot issue an interlocutory judgment until the referee provides the report and the court makes a determination regarding the respective interests of the parties. The court therefore will deny the motion, without prejudice to a motion to enter interlocutory judgment once those steps have been taken.

Defendants shall give notice of this ruling.