Judge: Salvatore Sirna, Case: 23PSCV01437, Date: 2023-10-04 Tentative Ruling

Case Number: 23PSCV01437    Hearing Date: October 4, 2023    Dept: G

Plaintiff Kelli Scott’s Motion for Interlocutory Judgment of Partition and Appointment of Referee

Respondent: Defendant Dale Carr

TENTATIVE RULING

Plaintiff Kelli Scott’s Motion for Interlocutory Judgment of Partition and Appointment of Referee is GRANTED.

BACKGROUND

This is an action for partition of a piece of real estate located at 19722 Cameron Avenue, Covina, CA. Plaintiff Kelli Scott, a trustee of The Ronald Earl Wheeler Living Trust, UA dated March 12, 2021 (Wheeler Trust), alleges the Wheeler Trust holds an undivided 66.7% interest in the Covina property along with Defendant Dale Carr who allegedly holds a 33.3% interest in the Covina property and currently resides at the Covina property. Scott alleges Scott and Carr both hold their interests as tenants-in-common. Defendant Quality Loan Service Corporation (Quality Loan) serves as the current trustee for a July 24, 2006 deed of trust that was recorded against the Covina property on July 31. Defendant Deutsche Bank National Trust Company (Deutsche Bank) is the beneficiary of a mortgage secured by the 2006 deed of trust.

On May 11, 2023, Scott filed a complaint against Carr, Quality Loan, Deutsche Bank, all persons unknown claiming any interest in the real property, and Does 1-20, alleging the following causes of action: (1) partition by sale of real property and (2) ouster.

On July 24, 2023, Scott dismissed Quality Loan from the present action.

On September 6, 2023, Scott filed the present motion. A hearing on the motion is set for October 4. A case management conference and OSC Re: Failure to File Proof of Service are also set for October 17.

ANALYSIS

Scott moves for a judgment of partition and appointment of referee with regards to the Covina property. In an “opposition” filed by Carr, Carr stated Carr has no opposition to the partition and sale of the Covina property. The only issue of contention for Carr is the appointment of a referee. Carr argues the appointment of a referee would impose an unnecessary cost as Carr claims Carr will agree to vacate and sell the Covina property within ninety (90) days.

Code of Civil Procedure section 873.010, subdivision (a) states “[t]he court shall appoint a referee to divide or sell the property as ordered by the court” in a partition proceeding. (Code Civ. Proc., § 873.010, subd. (a) (emphasis added).) While Carr argues a referee is unnecessary, Carr does not provide any authority that would allow the court to disregard the above requirement.

Here, Scott offers Matthew L. Taylor as a proposed referee. And while Carr describes objections to previous realtors that Scott has proposed, Carr does not provide any objection to the specific appointment of Taylor.

Next, Carr objects to being required to vacate the Covina property within thirty days of service of this court’s judgment and instead requests a ninety-day period of time to vacate the Covina property. In a reply, Scott argues the referee will likely allow Carr to stay at the property although Scott’s proposed referee instructions do not reference any such discretion. Thus, the court will grant Carr’s request and require Carr to vacate the Covina property within ninety (90) days of service of this court’s interlocutory judgment.

Last, Carr argues that the referee fees should be solely borne by Scott. The court rejects this argument as the law requires that “the court shall apportion the costs of partition among the parties in proportion to their interests or make such other apportionment as may be equitable.” The court does not find Carr’s proposed apportionment to be equitable or reasonable.

Accordingly, Scott’s motion is GRANTED.

CONCLUSION

Based on the foregoing, Scott’s motion for interlocutory judgment of partition by sale of the Covina property is GRANTED. Furthermore, Scott’s motion to appoint Matthew L. Taylor as referee is GRANTED.  Carr shall vacate the Covina property within ninety (90) days of service of this court’s interlocutory judgment.