Judge Upinder S. Kalra, Case 19STCV18098 2023-03-15 Tentative Ruling

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EX PARTE APPLICATION FOR RECONSIDERATION FOR ORDER DENYING MOTION FOR ORDER TO PARTITION PROCEEDS

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 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.

On January 17, 2023, Defendant filed a Motion for Partition of the Proceeds pursuant to CCP § 873.810 and CCP § 908. Defendant filed a Notice of Non-Opposition on February 1, 2023. Plaintiff filed an Opposition on February 6, 2023. On February 17, 2023, Defendant filed a Reply.

On March 14, 2023, Defendant filed an Ex Parte Motion for Reconsideration and Injunction.

When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.

Defendant moves to have the Court reconsider its order denying partition of 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 once again 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.

Previously, the Court ruled that the Motion for Partition was inappropriate at this time. First, it was 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, while it is true that Defendant was the former of the estate, the estate has been sold.[1] 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.)

Here, the second ground remains accurate. The Court set a trial on an expedited fashion.

However, Defendant does raise an interesting point. Whether the funds should remain with Plaintiff, or a neutral, third party. The Court has reflected that something should be done in the interim. Since the Court has authority to return the funds to “[a] person whose property has been taken under a judgment,” it appears that the Court can also place those funds in trust. (Beach Break Equities, LLC v. Lowell (2016) 6 Cal. App. 5th 847, 852–53.) The Court will hear from the parties on how to proceed.

[1] To the extent that the prior order suggested that the motion is procedurally defective under CCP § 872.210 becsuae the Defendant was not a co-owner, the Court misspoke. Defendant may maintain an action for an interest as a coowner of personal or real property.