California Code of Civil Procedure 873.060 is the California partition statute that gives the partition referee authority to do what is necessary in a partition action:
The referee may perform any acts necessary to exercise the authority conferred by this title or by order of the court.
California Code of Civil Procedure 873.060
This statute gives partition referees enormous flexibility to market and sell a property involved in a partition action.
This statute dovetails with California Code of Civil Procedure 873.010(b)(2) providing that: “The court may… Instruct the referee.” In turn: “The referee or any party may, on noticed motion, petition the court for instructions concerning the referee’s duties under this title.” California Code of Civil Procedure 873.070. Indeed, the partition statutes provide broad authority to the court in providing that: “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 of Civil Procedure 872.120.
In other words, the referee or any party may request instructions, the court may provide instructions, and the referee may perform any acts necessary to exercise the authority of the order of the court providing instructions. It is wise to request those instructions in advance when asking for the appointment of the partition referee.
Indeed, a referee’s report is an important to assist the court in evidentiary gathering and the fact-finding process to support the court as a part of the trial. As stated by the California Court of Appeal: “The court may appoint a referee to make a report on the facts and circumstances of the case, and make a recommendation to the court on precisely this primary determination. ([CCP] § 872.820, subd. (b).) Although his or her report and recommendation is advisory, the referee clearly serves as the initial examiner of the facts, and perhaps the law, in a partition action, under the aegis of the appointing court. The referee’s determinations are either accepted by the court, modified, or set aside. ([CCP] § 873.290, subd. (b).) Given the general role of referees as preliminary examiners of fact, we have no difficulty in concluding that trial in a partition action has commenced once evidentiary proceedings are begun before a referee. Despite the fact that the partition referee’s report was not in itself dispositive or tantamount to a final judgment, the trial proceedings began when the parties appeared before the referee to present their evidence.” [1]Gray v. Superior Court (1997) 52 Cal.App.4th 165, 171.
In fact, Code of Civil Procedure § 873.850, entitled “Continuance of Action Between Parties if Proceeds Not Allocated; Determination,” specifically delineates the role of a partition referee in providing a report to the court on offsets, stating that: “When the proceeds of the sale belonging to persons who are parties to the action… have not been allocated among such parties, the action may be continued as between such parties, for the determination of their respective claims thereto, which must be ascertained and adjudged by the court. Further testimony may be taken in court, or by a referee, at the discretion of the court, and the court may, if necessary, require such parties to present the facts or law in controversy, by pleadings, as in an original action.” This statute specifically delineates the power of the court to allow a partition referee
One California Court of Appeal case, Rahgoshay v. Hongyun Luo (Cal. Ct. App., Sept. 19, 2019) No. G056735, although unpublished, describes the very procedure of a partition referee’s report on offsets as follows:
The order appointing Pasternak as the partition referee provided, in relevant part: ‘The Partition Referee shall report to the court regarding the allocation and distribution of the net sales proceeds of the Property in accordance with Code of Civil Procedure § 873.850 et seq., including the allocation of the sale proceeds with respect to Property costs, income and benefits among the parties.’ (Italics omitted.) Thus, the trial court understood and anticipated that additional fees and costs would be expended, and additional rent received, requiring allocation by the partition referee.
The trial court did not err in exercising its statutory discretion to allocate fees and costs incurred after the entry of the original judgment in its post judgment order: “The court may, in all cases, order allowance, accounting, contribution, or other compensatory adjustment among the parties according to the principles of equity. (Code Civ. Proc., § 872.140.)
Rahgoshay v. Hongyun Luo (Cal. Ct. App., Sept. 19, 2019) No. G056735
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References
| ↑1 | Gray v. Superior Court (1997) 52 Cal.App.4th 165, 171. |
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