Judge: Theresa M. Traber, Case: 20STCV02293, Date: 2023-02-16 Tentative Ruling

Case Number: 20STCV02293    Hearing Date: February 16, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     February 16, 2023     TRIAL DATE: PHASE 1: May 8, 2023

CASE:                         Lauren Moriah Castro v. Ricardo Castro, et al.

CASE NO.:                 20STCV02293           

MOTION FOR INTERLOCUTORY JUDGMENT ON THE PLEADINGS

MOVING PARTY:               Plaintiffs Lauren Moriah Castro and Richard Castro, Jr.

RESPONDING PARTY(S): Defendant Nicole Ann Nunez-Castro

CASE HISTORY:

·         03/04/20: Complaint filed

·         09/23/20: First Amended Complaint Filed

·         03/04/22: Second Amended Complaint filed

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action in real property. Plaintiff and Defendant Richard Castro are co-owners of a piece of real property as tenants in common. Plaintiff seeks a partition and sale of the property and an accounting of all sums for upkeep, maintenance, mortgage, tax, and insurance payments on the property.

Plaintiffs move for an interlocutory judgment on the pleadings for partition by sale and appointment of a referee.

TENTATIVE RULING:

Plaintiffs’ Motion for Interlocutory Judgment on the Pleadings is DENIED.

DISCUSSION:

Plaintiffs move for an interlocutory judgment on the pleadings for partition by sale and appointment of a referee.

Interlocutory judgments for partition by sale are governed by Code of Civil Procedure section 872.710 et seq. Section 872.710 itself states, in relevant part:

(a) At the trial, the court shall determine whether the plaintiff has the right to partition.

(b) Except as provided in Section 872.730, partition as to concurrent interests in the property shall be as of right unless barred by a valid waiver.

(Code Civ. Proc. § 872.710 (a)-(b).) Under section 872.720(a), “[i]f 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(a).)

            Plaintiffs contend that they are co-owners of the subject property, and are therefore entitled to partition, based on the grant deeds provided in the Second Amended Complaint. (SAC Exhs. 1-3.) Plaintiffs make no effort, however, to address Defendant’s denial of each of the allegations in the Second Amended Complaint in her answer, nor any of Defendant’s affirmative defenses. Further, Plaintiffs’ contention that “there is no evidence to suggest that Plaintiffs have waived their right to partition, express or implied” is not sufficient in a request for judgment on the pleadings. On a motion for judgment on the pleadings, as on a demurrer, the Court must accept the allegations of the complaint and answer as true. (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515.)

            Defendant opposes on the basis that the parties have reached an agreement to sell the property and divide the proceeds between the parties, and thus the only issue remaining is whether appointment of a referee is necessary. Per Plaintiffs’ moving papers, the primary function of a referee in this case would be to force the sale and division of the proceeds, to which the parties have already agreed. As the parties appear to have resolved this principal issue independently, the Court does not find that appointment of a referee would be of meaningful value at this juncture.

CONCLUSION:

Accordingly, Plaintiffs’ Motion for Interlocutory Judgment on the Pleadings is DENIED.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated:  February 16, 2023                              ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.