Judge: Upinder S. Kalra, Case: 19STCV18098, Date: 2023-03-03 Tentative Ruling

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Case Number: 19STCV18098    Hearing Date: March 3, 2023    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   February 10, 2023                              

CASE NAME:           CA Home Buyers 247, LLC v. Howard Edward Terrell, Jr.  

CASE NO.:                19STCV18098

MOTION FOR ORDER TO PARTITION PROCEEDS

MOVING PARTY: Defendant Howard Edward Terrell, Jr.

RESPONDING PARTY(S): Plaintiff CA Home Buyers 247, LLC

REQUESTED RELIEF:

1.      An order partitioning the proceeds of the sale of the Subject Property

TENTATIVE RULING:

1.      Motion for Order for Partition is DENIED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On May 24, 2019, Plaintiff CA Home Buyers 247, LLC (“Plaintiff”) filed a complaint against Defendant Howard Edward Terrell, Jr. (“Defendant.”) The complaint alleged five causes of action: (1) Breach of Contract, (2) Intentional Misrepresentation and Fraud, (3) Negligent Misrepresentation, (4) Accounting, and (5) Injunctive Relief. The complaint alleges that the parties entered into an agreement to rehabilitate the Subject Property, which was headed to foreclosure. Plaintiff would pay $250,000 to bring the mortgage loan to current standing, make repairs and fund the construction of the property. Plaintiff alleges that Defendant breached the agreement as he has failed to provide accounting and has failed to cure default under the Agreement.

On Fevrury 28, 2020 and March 2, 2020, a bench trial took place, the Court found in favor of the Plaintiff except for the 2^nd cause of action.

On September 18, 2020, Judgment was Entered.

On October 14, 2020, Defendant filed a Motion for New Trial, which was DENIED.

On November 16, 2020, Defendant filed a Notice of Appeal.

On December 16, 2022, a Remittitur was filed as to the Appeal, and reversed the Trial Court’s denial of Defendant’s oral motion for continuance of the trial in order to secure new counsel.

The current Motion to Partition the Proceeds was filed on January 17, 2023. Defendant filed a Notice of Non-Opposition on February 1, 2023. Plaintiff filed an Opposition on February 6, 2023.

LEGAL STANDARD:

“A partition action may be commenced and maintained by any of the following persons: (1) A co-owner of personal property.  (2) An owner of an estate of 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).) “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.” (Code Civ. Proc., § 872.810.)   

ANALYSIS:

Defendant moves to have the Court partition the proceeds of the sale of the subject property by Plaintiff. This total is either $585,853.18, which are the proceeds from the sale of the house, or $683,950.38, the balance after paying the mortgage and arrears in full.

            Defendant argues that a partition is appropriate because the Court of Appeals recently reversed the judgment. Further, Defendant argues that under CCP § 908, the Court can partition the order. CCP § 908 states: “When the judgment or order is reversed or modified, the reviewing court may direct that the parties be returned so far as possible to the positions they occupied before the enforcement of or execution on the judgment or order.” Here, Defendant argues that the judgment by the trial court gave Plaintiff the power to sell the property, and thus, because of the reversal, Defendant was the owner of the property and should receive the funds.

Preliminarily, Plaintiff contends that a partition under CCP § 872.720 is for real property and occurs following judgment. Therefore, Plaintiff argues that the motion should be denied for two main reasons. First,  since the sale of the real property has already occurred, no partition of real property can now occur. What Defendant is asking for is a disbursement under CCP § 872.720. can occur. Second, the motion is an attempt at motion for summary judgment. Partition is not a remedy here because Defendant did not file a cross-complaint alleging a cause of action for partition. Additionally, there was no joint ownership because Plaintiff did not own the Subject Property, “as title was always vested in Defendant and Mr. Lamonte.” (Opp. 5: 21-24.) As to placing Defendant back in the position he occupied before judgment under CCP § 908, Plaintiff argues that Defendant was unemployed and insolvent at the time of the judgment, and therefore, this matter Defendant “seeks to be put in a better position that he was at the time of the reversed judgment.” (Opp. 6: 14-22.)

This matter was continued to allow Defendant to file a reply. Defendant’ reply is 20 pages long. Defendant argues that the Opposition contains numerous lies, that the Plaintiffs breached their owner partnership agreement. Defendant also argues that a partition should be granted because without the judgment, Plaintiff has no right to receive proceeds from the sale of the home and therefore, the proceeds need to be partitioned based on ownership. Plaintiff was not the owner, but had a 50% interest in the equity after satisfying their Partnership Agreement, which did not occur. (Reply 14: 17-23.)

The Court finds that a Motion for Partition is inappropriate at this time. First, it is procedurally incorrect. As stated in CCP § 872.210, a partition can be commenced by either a co-owner of personal property or an owner of an estate, etc., Here, the evidence indicates that Plaintiff and Defendant were not co-owners of the property, but rather the parties entered into a partnership agreement to rehabilitate the property. Second, this matter is not ripe. “The interests of the parties, plaintiff as well as defendant, may be put in issue, tried, and determined in the action.” (Code Civ. Proc., § 872.610.)¿ “No partition can be had until the interests of all the parties have been ascertained and settled by trial. [Citation.]” (Bacon v. Wahrhaftig¿(1950) 97 Cal.App.2d 599, 603.) Moreover, the sale of the real property has already occurred. 

            Therefore, the Motion for Order to Partition is DENIED.

CONCLUSION:

            For the foregoing reasons, the Court decides the pending motion as follows:

            Motion for Order to Partition is DENIED.

Responding party is to give notice.

IT IS SO ORDERED.

Dated:             March 2, 2023             __________________________________                                                                                                                Upinder S. Kalra

                                                                                    Judge of the Superior Court