Judge Peter A. Hernandez, Case 22PSCV00749 2022-10-31 Tentative Ruling

Plaintiffs Glenn Fong’s and Diana Fong’s Application for Prove-Up Hearing on Plaintiff’s Request for Entry of a Default Interlocutory Judgment or Partition and Appointment of Referee is GRANTED.

Plaintiffs Glenn Man Ching Fong and Diana Man Ling Fong, individually and as trustees of the G and D Fong Family Trust (Plaintiffs) allege as follows: Plaintiffs and Defendant Ling Peng (“Peng”) hold the property located at 2125 East Idahome Street, West Covina, California 91791 (“subject property”) as tenants in common. Peng, the sole tenant-in-possession, has repeatedly refused to voluntarily sell the subject property or to buy out the share of Plaintiffs’ 50% ownership interest. Plaintiffs seek a partition by sale.

On July 21, 2022, Plaintiffs filed a complaint, asserting a cause of action against Peng and Does 1-10 for:

“A partition action may be commenced and maintained by any of the following persons: (1) A coowner of personal property. (2) An owner of an estate or inheritance, an estate for life, or an estate for years in real property where such property or estate therein is owned by several persons concurrently or in successive estates.” (Code Civ. Proc., § 872.210, subd. (a).)

“At the trial, the court shall determine whether the plaintiff has the right to partition.” (Code Civ. Proc., § 872.710, subd. (a).) “If the court finds that the plaintiff is entitled to partition, it 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, subd. (a).)

“Notwithstanding Section 872.810[1], the court shall order that the property be sold and the proceeds be divided among the parties in accordance with their interests in the property as determined in the interlocutory judgment in the following situations: (a) The parties agree to such relief, by their pleadings or otherwise. (b) The court determines that, under the circumstances, sale and division of the proceeds would be more equitable than division of the property. For the purpose of making the determination, the court may appoint a referee and take into account his report.” (Code Civ. Proc., § 872.820.)

“The court shall appoint a referee to divide or sell the property as ordered by the court.” (Code Civ. Proc., § 873.010, subd. (a).) “The court in its discretion may appoint a referee for sale and a referee for division, or may appoint a single referee for both.” (Code Civ. Proc., § 873.020.)

In appointing a referee, “[t]he court may: (1) Determine whether a referee's bond is necessary and fix the amount of the bond. (2) Instruct the referee. (3) Fix the reasonable compensation for the services of the referee and provide for payment of the referee's reasonable expenses. (4) Provide for the date of commencement of the lien of the referee allowed by law. (5) Require the filing of interim or final accounts of the referee, settle the accounts of the referee, and discharge the referee. (6) Remove the referee. (7) Appoint a new referee.” (Code Civ. Proc., § 873.010, subd. (b).)

“The referee or any party may, on noticed motion, petition the court for instructions concerning the referee’s duties under this title.” (Code Civ. Proc., § 873.070). “The referee may perform any acts necessary to exercise the authority conferred by this title or by order of the court.” (Code Civ. Proc., § 873.060).

Plaintiffs apply for a default prove-up hearing on Plaintiffs’ request for entry of a default interlocutory judgment of partition and appointment of a referee with regard to the subject property.

Plaintiffs have proffered the following evidence: On February 1, 1989, a grant deed transferring the subject property from third parties to “Glenn Fong and Diana Fong, husband and wife as joint tenants” was recorded. (Talkov Decl., ¶ 5, Exh. 4.) On December 20, 2002, a quitclaim deed transferring the subject property from Glenn Fong and Diana Fong to “Glenn Fong and Diana Fong, Kai Lit Kwong and Zhu Ling Peng, all as joint tenants” was recorded. (Id., ¶ 6, Exh. 5.) On October 29, 2009, Plaintiffs granted an undivided ½ interest in the subject property to themselves as trustees of the G and D Fong Family Trust dated September 8, 2009. (Id., ¶ 7, Exh. 6.) On July 26, 2017, an affidavit of death of joint tenant transferring Kai Lit Kwong’s ownership interest in the subject property to Peng was recorded. (Id., ¶ 8, Exh. 7.)

On May 26, 2021, Plaintiffs filed their complaint, seeking a partition by sale of the subject property. Peng failed to file a responsive pleading; as such, Peng’s default was entered on September 13, 2022.

“Partition in kind is favored in law and in the absence of proof to the contrary the presumption in favor of in kind division will prevail.” (Butte Creek Island Ranch v. Crim (1982) 136 Cal.App.3d 360, 365.) “The burden of proof remains upon the party endeavoring to force a sale.” (Id. at 366.) In order to compel a sale rather than a physical division, it must be shown that (1) “the property is so situated that a division into subparcels of equal value cannot be made” or that (2) “due to the particular situation of the land, the division of the land would substantially diminish the value of each party's interest.” (Id. at 366-367.)

The court determines that Plaintiffs have met their burden of showing that partition by sale of the subject property would be more equitable than division of the subject property. The subject property is a single-family residence on a suburban lot and there is no practical way to physically divide same between the co-tenants. (G. Fong Decl., ¶ 11; D. Fong Decl., ¶ 11.)

Additionally, the court has reviewed the declaration of attorney Matthew Taylor and his accompanying curriculum vitae and determines that Plaintiffs’ request for his appointment as referee is appropriate.

[1] Section 872.810 provides as follows: “The court shall order that the property be divided among the parties in accordance with their interests in the property as determined in the interlocutory judgment.”