Judge: Robert B. Broadbelt, Case: 20STCV44438, Date: 2023-01-23 Tentative Ruling

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Case Number: 20STCV44438    Hearing Date: January 23, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Plaintiff Aladdin Nabulsi

RESPONDING PARTY:       Defendants Isam Nabulsi, Adnan Nabulsi, Walid Nabulsi, individually and as trustee of the Walid M. Nabulsi Revocable Living Trust dated April 12, 2013, Mazen Nabulsi, and Azzam Nabulsi

Motion for Summary Judgment

The court considered the moving, opposition, and reply papers filed in connection with this motion.

REQUEST FOR JUDICIAL NOTICE

The court grants Plaintiff’s request for judicial notice.  (Evid. Code, § 452, subds. (b), (h).)

LEGAL STANDARD

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  For the purposes of motion for summary judgment and summary adjudication, “[a] plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.”  (Code Civ. Proc., § 437c, subd. (p)(1).)  “Once the plaintiff . . . has met that burden, the burden shifts to the defendant . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”  (Code Civ. Proc., § 437c, subd. (p)(1).)  “When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.”  (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467; Code Civ. Proc., § 437c, subd. (c).)

DISCUSSION

1.     First Cause of Action for Partition

“[P]artition [is] the procedure for segregating and terminating common interests in the same parcel of property.”  (Summers v. Superior Court (2018) 24 Cal.App.5th 138, 142 [internal quotations omitted].)  “A co-owner of real or personal property may bring an action for partition.  (Code Civ. Proc., § 872.210.)  ‘The primary purpose of a partition suit is, as the terminology implies, to partition the property, that is, to sever the unity of possession.  [Citations.]’”  (LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 493.)  Except as otherwise provided by statute, “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).)  “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).)  Thus, “an interlocutory judgment in a partition action is to include two elements: a determination of the parties’ interests in the property and an order granting the partition.”  (Summers, supra, 24 Cal.App.5th at p. 143.)  

The court finds that Plaintiff has met his burden of showing that there is no defense to the first cause of action for partition because Plaintiff has proved each element of the cause of action entitling Plaintiff to judgment on that cause of action. 

First, Plaintiff has presented evidence establishing that he is a one-sixth joint tenant of the subject property.  (Undisputed Material Fact (“UMF”) No. 1; Aladdin Nabulsi Decl., ¶ 2.)  The court therefore finds that Plaintiff has presented evidence establishing that he, as co-owner of the property, has the absolute right to partition.  (Code Civ. Proc., § 872.710, subd. (b).)

Second, Plaintiff has presented evidence establishing that, under the circumstances, sale and division of the proceeds would be more equitable than division of the property.  (Code Civ. Proc., § 872.820, subd. (b).)  Plaintiff presents evidence showing that it is impracticable to divide the property, and that the division of the property would result in each party receiving less value than the portion of money that would be received through the sale of the property.  (UMF Nos. 9-11; Moradzadeh Decl., Ex. F, Mazen Nabulsi Responses to RFA, pp. 2:18 [“Admit that a division of the PROPERTY into six parcels of equal value cannot be made”], 3:1-4 [“Admit that any division of the PROPERTY…is less valuable to each CO-OWNER than each CO-OWNER’s share of the cash receipts upon sale of the entire PROPERTY”]; Moradzadeh Decl., Ex. G, p. 6 [court’s February 17, 2022 order that the truth of the matters specified in Plaintiff’s Requests for Admissions, Set One, to Mazen Nabulsi are deemed admitted].) 

The court therefore finds that Plaintiff has met his burden of proving each element of the cause of action for partition by submitting evidence showing that (1) Plaintiff has the right to partition the property, and (2) under the circumstances, it is more equitable to partition the property by sale.

The court finds that Defendants have not met their burden to show that a triable issue of material fact exists as to the elements of Plaintiff’s ownership interest in the property, or the appropriate manner of partition.  Defendants do not dispute any material fact, and expressly state that there is no dispute (1) “that the property should be sold without being physically divided” or (2) “that both Plaintiff and Defendants, collectively, are each 1/6th owners of the Subject Property that is the basis for this lawsuit.”  (Opp., p. 2:10-12.)

The court notes that Plaintiff requests the court order that Plaintiff’s reasonable attorney’s fees are to be paid in one-sixth shares by Defendants.  The court declines to consider any request for attorney’s fees made in connection with this motion, because a determination of an award of fees and costs must be made at the time that the final judgment is made.  (Elbert, Ltd. v. Federated etc. Properties (1953) 120 Cal.App.2d 194, 209 [“costs or attorney’s fees may not be allowed until the final judgment is entered and have no proper place in the interlocutory decree”]; Southern California Title Clearing Co. v. Laws (1969) 2 Cal.App.3d 586, 590-591 [any costs and fees that may be recovered by a plaintiff “should be determined when the final decree of partition is made”].) 

The court finds that all the papers submitted show that there is no triable issue as to any material fact, and that plaintiff Aladdin Nabulsi is entitled to judgment as a matter of law.  The court therefore grants plaintiff Aladdin Nabulsi’s motion for summary judgment.

ORDER

The court grants plaintiff Aladdin Nabulsi’s motion for summary judgment.

The court shall make an interlocutory judgment that (1) determines the interests of the parties in the property located at 11915-11917 Paramount Boulevard, Downey, California 90242 as follows: plaintiff Aladdin Nabulsi and defendants Isam Nabulsi, Adnan Nabulsi, Walid Nabulsi, individually and as trustee of the Walid M. Nabulsi Revocable Living Trust dated April 12, 2013, Mazen Nabulsi, and Azzam Nabulsi own the property as joint tenants, with each party holding one-sixth interest in the property, and (2) orders the partition of the property by issuing an order that the property located at 11915-11917 Paramount Boulevard, Downey, California 90242 be sold and the proceeds be divided among the parties in accordance with their interests in the property as determined by the court above.  (Code Civ. Proc., §§ 872.720, subd. (a), 872.820.)

The court orders Plaintiff’s and Defendants’ counsel to meet and confer no later than February 13, 2023, to determine whether the parties will stipulate to an order for the court to appoint a referee to sell the property and, if so, who the court should appoint to serve as the referee.  If the parties so stipulate, they may lodge a stipulation and proposed order to appoint a referee and to address the other terms discussed in Code of Civil Procedure sections 873.010, and 873.510-873.690.

The court orders plaintiff Aladdin Nabulsi to prepare, serve, and file with the court a proposed interlocutory judgment that is consistent with the rulings made in this decision no later than February 28, 2023.

The court vacates the trial scheduled for March 15, 2023, and the final status conference scheduled for March 3, 2023.

The court sets (1) an Order to Show Cause re entry of interlocutory judgment of partition of real property, and (2) a Status Conference re partition of property and appointment of a referee to sell the property, on _____________, 2023, at 11:00 a.m., in Department 53.

The court orders plaintiff Aladdin Nabulsi to give notice of this ruling.

IT IS SO ORDERED.

DATED:  January 23, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court