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How to Get a Default Judgment in Partition Action

When defendants in a partition action ignore the summons and complaint, the plaintiff is entitled to obtain a default judgment ordering that the property be partitioned, usually by a forced sale.

Indeed, some co-owners fail to respond to attempts to discuss the use, management, or sale of the property. When this occurs out of court, it can lead to a frustrating deadlock. However, when this occurs after a partition is filed, it can lead to a swift resolution when handled by an experienced partition attorney.

What is a Default Judgment?

Pursuant to California law, a “default judgment is entered when a defendant fails to appear….”[1]Cal. Civ. Proc. Code § 473(b); see Pagnini v. Union Bank, N.A. (2018) 28 Cal. App. 5th 298, 239. As The Rutter Guide explains, “[a]fter defendant’s default has been entered, plaintiff may apply for a judgment based on such default.”[2]Hon. Robert I Weil & Hon. Ira A. Brown, Jr., California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2011) ¶5:10. Furthermore, “[b]y defaulting, defendant is deemed to admit the material allegations of the complaint for purposes of the action.”[3]Hon. Robert I Weil & Hon. Ira A. Brown, Jr., California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2011) ¶5:8.

How to Enter the Default of a Defendant in a Partition Action

If the defendant fails to appear in the action within the time allowed by law, the plaintiff should first request what is known as “entry of default.” This is done by use of Judicial Council Form CIV-100 entitled “Request for Entry of Default (Application to Enter Default).”

Specifically, the plaintiff will complete the form request for entry of default as follows:

  1. Fill in the information in the box at the top, including the plaintiff or their attorney as well as the case number
  2. Mark the box at the top to indicate that this is a “Request for Entry of Default”;
  3. On Line 1(a), fill in the date that the complaint was filed;
  4. On Line 1(b), fill in the name of the plaintiff;
  5. Check box 1(c) and indicate the name of the defendant who did not appear;
  6. Leave boxes 1(d) and (e) blank;
  7. Ignore Section about the monetary amount being demanded;
  8. Under Section 3, complete the date, including the name of the plaintiff or their attorney with the signature on the right side;
  9. Under Section 4, indicate whether a legal document assistant did or did not for compensation give advice;
  10. Check Box 5, along with “is not” under 5(a), 5(b), and 5(c);
  11. Check Box 6(b) and provide the mailing date and name/address of the defendant;
  12. Sign the form under section 6;
  13. Leave Section 7 blank other than to add the date, name of the plaintiff or their attorney, and sign;
  14. Leave Section 8 blank unless the defendant has an applicable military status;
  15. File the request with the superior court where the action is pending.

How to Obtain a Defaulted Interlocutory Judgment of Partition?

After the court enters the default, and assuming there are no other defendants that appeared in the action, the plaintiff should file a motion for defaulted interlocutory judgment of partition and appointment of a referee.

The motion should cite to and provide evidence of the correct application of California Code of Civil Procedure 872.720(a), which is the California partition statute that delineates when a court may issue an interlocutory judgment of partition as follows:

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.

California Code of Civil Procedure 872.720(a)

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.”[4]Summers v. Superior Court (2018) 24 Cal.App.5th 138, 142, as modified (June 27, 2018). Since the is on default, it is best to allege the manner of partition, e.g., by sale, so that another step is not required.

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.”[5]Partition—in general, 12 Cal. Real Est. (4th ed.) § 40:126.

Do I Need a Partition Referee?

In the scenario where a co-owner has defaulted in a partition action, a partition referee plays an integral role.

Critically, California Code of Civil Procedure 873.790 is the California partition statute that addresses the execution of the deed (conveyance) by the partition referee upon sale of the property in a partition action. This is the critical act that allows the property to be sold without the signature of the co-owner, who may be ignoring the court or unable to be found such that service by publication was made. The statute provides that:

(a) Upon fulfillment of the terms of sale, the referee shall execute a conveyance or other instrument of transfer to the purchaser.

(b) The conveyance or transfer of real property and the order authorizing such conveyance or transfer shall be recorded in each county in which the property is located.

California Code of Civil Procedure 873.790

California Code of Civil Procedure 873.010(b)(2) provides that “[t]he court may . . . instruct the referee [and the] . . . referee may perform any acts necessary to exercise the authority conferred by this title or by order of the court.”[6]California Code of Civil Procedure 873.060. “The judgment is [the referee’s] only authority to act at all.”[7]Emeric v. Alvarado, 64 Cal. 529, 619, 2 P. 418, 479 (1884) A qualified partition attorney will be able to ensure that the referee’s instructions under CCP § 873.070 provide sufficient authority to the referee as outlined in CCP § 873.060.

For a list of qualified partition referees, Talkov Law’s article below is a great place to start. For more information on each referee, contact the referee for their CV and resume, outlining their experience and rates to provide to the court in a declaration.

Talkov Law’s Partition Attorneys Can Help

If your co-owner has failed to respond to a partition complaint, you can only benefit from an assertive and strategic lawyer who possesses expertise in real estate law. Contact California’s premier partition action law firm by reaching out to Talkov Law. For a free consultation, call (844) 4-TALKOV (825568) or reach out online today.

References

References
1 Cal. Civ. Proc. Code § 473(b); see Pagnini v. Union Bank, N.A. (2018) 28 Cal. App. 5th 298, 239.
2 Hon. Robert I Weil & Hon. Ira A. Brown, Jr., California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2011) ¶5:10.
3 Hon. Robert I Weil & Hon. Ira A. Brown, Jr., California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2011) ¶5:8.
4 Summers v. Superior Court (2018) 24 Cal.App.5th 138, 142, as modified (June 27, 2018).
5 Partition—in general, 12 Cal. Real Est. (4th ed.) § 40:126.
6 California Code of Civil Procedure 873.060.
7 Emeric v. Alvarado, 64 Cal. 529, 619, 2 P. 418, 479 (1884)
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