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“Fairness” is Not a Defense to Partition

Courts have repeatedly concluded that the “fairness” defense to partition found in a 1976 case was impliedly rejected by the 1976 legislation declaring in California that “the right to partition is absolute.” Priddel v. Shankie (1945) 69 Cal.App. 2d 319, 325.

The Supposed “Fairness” Defense to Partition

Defendants in a partition action may desperately attempt to stop or even simply stall the inevitable partition action by claiming that a “requirement of fairness” prohibits co-owners from filing a partition action. The authority for this claim is a quote that there is a “requirement of fairness” in the 1976 decision in American Medical International, Inc. v. Feller (1976) 59 Cal.App.3d 1008, 1016 (“AMI”), which in turn cited to the 1972 decision in Penasquitos, Inc. v. Holladay (1972) 27 Cal.App.3d 356.

Court of Appeal Has Twice Rejected that “Fairness” is a Defense to Partition

Twice in the last few years, the Court of Appeal has informed litigants that the fairness defense cases are interpreting the pre-1976 partition statutes before partition was as a matter of right.

In 2023, the Court of Appeal, Second District covering Los Angeles and the Central Coast found that: “The AMI decision, however, does not address section 872.710, which was enacted the same year AMI was decided. Rather, AMI was decided under the former statute, section 752, which did not provide for an absolute right of partition. (See AMI, supra, 59 Cal.App.3d at p. 1013 [quoting former section 752, which provided that ‘[when] several cotenants own real property … an action may be brought by one or more of such persons, … for a partition thereof according to the respective rights of the persons interested therein’].) Because AMI does not address section 872.710, it does not guide our analysis.” Caiozzo v. 2672 To 2674 North Beachwood Drive, LLC (Cal. Ct. App., Nov. 13, 2023, No. B322219) 2023 WL 7485496, at *6 (unpublished).

This is the second time that the Court of Appeal has been called upon to inform defendants of the bogus nature of this claim, telling the now disgraced and disbarred Tom Girardi as Appellant/Defendant that the AMI case “does not address Code of Civil Procedure section 872.710, which was enacted the same year that AMI was decided. Therefore, AMI does not guide our analysis on this point.” Lipscomb v. Girardi (Cal. Ct. App., Mar. 1, 2018, No. B279364) 2018 WL 1127686, at *7 (unpublished).

Suffice to say, the fairness argument has been declared to be old news in California law.

Absolute Right to Partition is Still the Law in California

The current state of the law is that “partition as to concurrent interests in the property shall be as of right unless barred by a valid waiver.” Code Civ. Proc. § 872.710(b). “Ordinarily, if the party seeking partition is shown to be a tenant in common, and as such entitled to the possession of the land sought to be partitioned, the right to partition is absolute, and cannot be denied, ‘either because of any supposed difficulty, nor on the suggestion that the interest of the cotenants will be promoted by refusing the application or temporarily postponing action….” Priddel v. Shankie (1945) 69 Cal.App. 2d 319, 325.

Talkov Law Can Help

Plaintiffs in partition actions should look for a partition attorney who can overcome all of the various stall tactics by defendants in portions. Defendants should be equally aware of which theories will present a defense to a partition action, and which are mere misreadings of the law. For a free consultation, contact Talkov Law online or at (844) 4-TALKOV (825568).

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