Code of Civil Procedure 872.720 CCP – Interlocutory Judgment of Partition (Partition Actions)

California Code of Civil Procedure 872.720 is the California partition statute that allows the court to enter an interlocutory judgment of partition, thereby finding that a partition will be entered in the case. The statute provides that:

(a) 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.

(b) If the court determines that it is impracticable or highly inconvenient to make a single interlocutory judgment that determines, in the first instance, the interests of all the parties in the property, the court may first ascertain the interests of the original concurrent or successive owners and thereupon make an interlocutory judgment as if such persons were the sole parties in interest and the only parties to the action.  Thereafter, the court may proceed in like manner as between the original concurrent or successive owners and the parties claiming under them or may allow the interests to remain without further partition if the parties so desire.

California Code of Civil Procedure 872.720

Summers vs. Superior Court – Required Elements for Interlocutory Judgment of Partition

Thus, “a viable interlocutory partition judgment must include both a determination of the parties’ interests and order partition. But while it may, it need not, include the manner of partition.” Summers v. Superior Court (2018) 24 Cal.App.5th 138, 142, as modified (June 27, 2018).

2 Requirements for Interlocutory Judgment of Partition in California

Said more clearly, there are only three requirements to obtain a partition in California, which is usually partition by sale:

1) Plaintiff is indeed entitled to partition, which generally means that the plaintiff has not waived the right to partition. This is known as the right to partition in California.^[1]California Code of Civil Procedure 872.710
2) A determination of ownership interests of the parties, which is usually undisputed as found on the face of deed in which they became co-owners, i.e., tenants in common or joint tenants. This is in reference to the “statute’s plain requirement that the parties’ ownership interests be determined before or when the manner of partition is decided.” Summers v. Superior Court (2018) 24 Cal.App.5th 138, 143.
3) OPTIONAL: Determine the manner of partition, which is almost always partition by sale when the property is a single family residence since it cannot be split in parts to be awarded to each co-owner in a partition in-kind. While many parties believe they can hold up the proceedings by claiming that they want partition by appraisal, the law provides that “the parties may agree upon a partition by appraisal”^[2]California Code of Civil Procedure 873.910, meaning the refusal by the plaintiff to agree to partition by appraisal prohibits this form of partition.

So long as these requirements are met, the court “shall” appoint a referee.^[3]California Code of Civil Procedure 873.010 Miller & Starr explains that: “If the court finds that the plaintiff is entitled to partition, it must make an interlocutory judgment that determines the interests in the property and orders partition of the property.” Partition—in general, 12 Cal. Real Est. (4th ed.) § 40:126.

Through this method, the court completes the first phase of the partition by granting the interlocutory judgment of partition. ^[4]As an unpublished opinion explained: “Generally, the action involves two judgments. (§§ 872.720, 873.290, 874.210.) First, the trial court determines the respective interests of the alleged … Continue reading

Accordingly, “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,” i.e., that there has not been a waiver of the right to partition. (Summers v. Superior Court (2018) 24 Cal.App.5th 138, 143, as modified (June 27, 2018).) The third element, “the manner of partition—i.e., a physical division or sale of the property—[can] be decided when…the parties’ ownership interests are determined.” (Id.)

Code of Civil Procedure § 760.030(b) explains that: “In an action or proceeding in which establishing or quieting title to property is in issue the court in its discretion may, upon motion of any party, require that the issue be resolved pursuant to the provisions of this chapter to the extent practicable.”

Summers v. Superior Court (2018) Ownership Interests Determined Before Partition Judgment Entered

Interlocutory Judgment of Partition by Sale – The Two Phases of a Partition in California

Interlocutory Judgment Can be Granted by Motion for Summary Judgment

Trial is hardly the only method to enter an interlocutory judgment. See Code of Civil Procedure 872.710. Rather, the Court of Appeal reversed and “directed” the trial court “to enter a new order granting LEG’s motion for summary adjudication on its first cause of action for partition by sale,…and to enter an interlocutory judgment directing partition of the Property by sale.” LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 497–498.

Interlocutory Judgment Can be Granted by Motion for Judgment on the Pleadings

The partition statutes grant courts the broadest possible authority as follows: “In the conduct of the action, the court may hear and determine all motions, reports, and accounts and may make any decrees and orders necessary or incidental to carrying out the purposes of this title and to effectuating its decrees and orders.” Code Civ. Proc. § 872.120. The Law Revision Comment explains that this section’s “purpose is to give the broadest possible statutory authorization for powers that the court, to a large extent, apparently already had. The succeeding sections of this article elaborate on, but do not exhaust, the court’s power in partition actions. While partition actions in California are a creature of statute, they are nonetheless equitable in nature, and the statutory provisions are to be liberally construed in aid of the court’s jurisdiction.”

As such, a court may grant a motion for interlocutory judgment on the pleadings. See, e.g., Korchemny v. Piterman (2021) 68 Cal. App. 5th 1032, 1054 (motions for judgment on the pleadings may be made at any time and “does not specify any grounds which might serve to limit its power to do so”). While this motion may simply be deemed a non-statutory motion for judgment on the pleadings, Code of Civil Procedure Section 438 (c)(1)(A) clarifies that a plaintiff to move for judgment on the pleadings if the “complaint states facts sufficient to constitute a cause of action … and the answer does not state facts sufficient to constitute a defense.”

The Court of Appeal has affirmed that “an interlocutory judgment on the pleadings was rendered against the defendants” where the “complaint…asks for a sale of the property…and partition of the proceeds thereof, and that a receiver be appointed to take charge of the property….” White v. White (1936) 11 Cal.App.2d 570, 571.

In fact, one unpublished opinion noted that a defendant had “filed a motion in May 2009 for an interlocutory judgment determining the parties’ interests in the property and ordering a partition by sale and the appointment of a referee to sell the property.” Haverland v. Badal (Cal. Ct. App., Oct. 6, 2010, No. B219093) 2010 WL 3898556, at *1. “After a hearing on June 3, 2009, the trial court determined that the parties’ ownership interests were not in dispute and that an interlocutory judgment under Code of Civil Procedure section 872.720 was appropriate…. The court granted the motion by Badal and Howard Hori and entered an interlocutory judgment on July 20, 2009.” Haverland v. Badal (Cal. Ct. App., Oct. 6, 2010, No. B219093) 2010 WL 3898556, at *1. A review of the recorded interlocutory judgment shows that it arose from “the motion of defendants for judgment on the pleadings and entry of an Interlocutory Judgment of Partition and an Order Appointing Referee…”

The Court Must Only “Resolve” the Parties’ Interests

While defendants often seek a delay of a ruling on an interlocutory judgment, a trial must only “resolve” the parties’ interests. As the Summers court explained: “The trial court’s ruling here failed to satisfy these elements because it ordered the property to be sold before the parties’ interests were resolved.” Summers v. Superior Court (2018) 24 Cal.App.5th 138, 143 (“We conclude that the trial court lacked the authority to order the sale of the property before it determined the parties’ respective ownership interests.”) Whether the standard is resolve or determine, the ownership interests appear to be determinable on motion practice.

Talkov Law's Partition Attorneys Can Help

If you want to end your co-ownership relationship, but your co-owner won’t agree, a partition action is your only option. With eight, full time partition lawyers, Talkov Law is the #1 partition law firm in California and has handled over 400 partition actions throughout California. Every case has resulted in a sale to either a third party or one of the co-owners. Not a single court has denied our clients the right to partition or declared our client to be a non-owner. Plus, for qualified cases, there is no fee until we settle or win your case!

If you're looking to end your co-ownership dispute, contact California's premier partition action law firm by calling Talkov Law at (844) 4-TALKOV (825568) or sending us a message today.