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

The independent nature of the statutorily required “interlocutory judgment” in a California partition action is rarely seen among civil litigation judgments, which may cause confusion among those who are not familiar with partition law. Generally, a case has only one judgment, and that judgment answers all issues in the case. Even if that judgment is amended, both the original and amended judgment attempted to resolve every question in the case. During the case, the court will issue interim orders (not judgments) that answer discrete questions in the case such a rulings on a demurrer or discovery dispute.

However, in a partition action, the court will order “that the property be sold and the proceeds divided among the parties in accordance with their interests in the property as determined in the interlocutory judgment” when either “[t]he parties agreed to such relief, by their pleadings or otherwise,” or when the “sale and division of the proceeds would be more equitable than division of the property.” California Code of Civil Procedure 872.820.

The Interlocutory Judgment of Partition Under California Code of Civil Procedure 872.720(a)

However, in partitions, a California partition statute exists providing that the court “shall” enter an “interlocutory judgment” 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)

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.”[1]Partition—in general, 12 Cal. Real Est. (4th ed.) § 40:126. As a recent California Court of Appeal ruling found, “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).

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

The Interlocutory Judgment is Decided “First” to Ensure that the Case is a Partition

Citing “C.C.P. 872.720(a),” Witkin, a leading secondary source on California law, explains that, “[i]n an action for partition, the court first makes an interlocutory order or decree directing partition and determining the respective interests of the parties.” [2]Statutory Types, 7 Witkin, Cal. Proc. 6th Judgments (2022) § 21. As one unpublished case explained: “It is only when the sale is accomplished, the proceeds obtained, expenses and costs are paid or allocated, and the residue is ready for distribution, that a final judgment of partition may be entered.” Schacherbauer v. Sherwood (Cal. Ct. App., Apr. 13, 2004, No. C041575) 2004 WL 792116, at *4.

An Interlocutory Judgment Decides Only Some of the Issues in a Case

“A judgment is interlocutory if further judicial action is essential to a final determination of the rights of the parties.” [3]40A Cal. Jur. 3d Judgments § 6 citing Barth-Wittmore Ins. v. H. R. Murphy Enterprises, Inc. (1985) 169 Cal.App.3d 124, 130 (“decree is interlocutory if further judicial action is essential to … Continue reading “An interlocutory judgment or order is a provisional determination of some or all issues in the cause.”[4]Yeboah v. Progeny Ventures, Inc. (2005) 128 Cal.App.4th 443, 448, as modified on denial of reh’g (May 5, 2005) 

“An interlocutory judgment or order is a provisional determination of some or all issues in the cause…. But interlocutory judgment has a narrower, more specific, and more useful meaning. In certain kinds of cases (usually equitable actions), it is desirable to have a preliminary determination of the respective rights of the parties before taking evidence or further steps to settle the controversy. Roughly classified, the principal situations are the following: (1) Unresolved issues. Where the ultimate judgment will be unconditional, but basic issues of law must be determined before evidence is heard and a final judgment rendered; e.g., an interlocutory order determining the right to an accounting, then taking of the account and judgment for the amount found due … (3) Statutory decrees. Statutory types of interlocutory decrees, such as an interlocutory order for partition.” [5]Nature of Determination, 7 Witkin, Cal. Proc. 6th Judgments (2022) § 12 Interestingly, every partition includes a final accounting, meaning an interlocutory judgment of partition meets both of the examples set forth above.

“An interlocutory decree in an action for the partition of real property, although preliminary to the final judgment of conformation, is conclusive as to the matters determined therein.”[6]Starcevic v. Pentech Financial Services, Inc. (2021) 66 Cal.App.5th 365, 375–376 (quoting Pista v. Resetar (1928) 205 Cal. 197, 199, and citing Holt v. Holt (1901) 131 Cal. 610, 611–612 … Continue reading

Order of Operations in a Partition Action

Many general civil litigators will erroneously believe that a partition trial must decide all issues in the case. However, the law provides that the order of operations first calls for an interlocutory judgment of partition, followed by a sale and final division of proceeds. As one court set forth: “In an action for partition, the trial court determines the plaintiff’s right to partition (§ 872.710), the interests of the parties in the property (§ 872.610), and the manner of partition (§§ 872.810-872.840). The court then issues an interlocutory judgment. (§ 872.720.) The court appoints a referee to divide or sell the property. (§§ 873.010, subd. (a), 873.210, 873.510, 873.790.) The court then orders the proceeds of sale disbursed (§ 873.810) and enters a judgment of partition (§ 874.210).” [7]George v. Williams (Cal. Ct. App., Jan. 18, 2022, No. 2D CIV. B309218) 2022 WL 152195, at *3.

Many courts refer to this as the first phase of a partition being the entry of an interlocutory judgment, which is followed by the second phase of a partition being the accounting of offsets and distribution of proceeds, in a sale, or division of the property, in a partition in-kind. While some attorneys may refer to this as the first trial and second trial, the reality is that many partitions are decided without trial, especially on the first phase of an interlocutory judgment of partition.

For example, a recent Court of Appeal decision described the two step partition process as follows:

In the first phase of the trial, the court on May 19, 2016, denied the relief sought by Cremoux in her cross-complaint and ordered partition of the property. In the second phase of the trial in August 2016, the trial court heard evidence concerning Cremoux’s initial investment in the property and the parties’ respective contributions for expenses related to the property, including repairs and improvements. [8]Colmet-Daage v. Cremoux (Cal. Ct. App., Apr. 5, 2021, No. H045033) 2021 WL 1248196, at *1. One secondary source focused largely on non-California partition law explains that: “In the standard … Continue reading

In other words, the accounting would normally occur second in a partition action.

The Partition Accounting Will Depend Upon the Interlocutory Judgment of Partition

Once the property is sold, partition law provides that the funds ultimately result in a: “Distribution of the residue among the parties in proportion to their shares as determined by the court.” California Code of Civil Procedure 873.820. Indeed: “Except as otherwise provided in this article, the court shall apportion the costs of partition among the parties in proportion to their interests or make such other apportionment as may be equitable.” California Code of Civil Procedure 874.040.

In other words, if the interlocutory judgment finds the parties to be 50/50 owners, the proceeds will be distributed 50/50 absent some other finding on offsets.

However: “The ordering of an accounting under the partition statute falls under the wide range of discretion accorded a court in equity.” [9]Finney v. Gomez (2003) 111 Cal.App.4th 527, 542. “Because an action for partition is an equitable proceeding, it is governed by the principle that ‘[a] court of equity has broad powers and comparatively unlimited discretion to do equity without being bound by any strict rules of procedure.’”[10]Colmet-Daage v. Cremoux (Cal. Ct. App., Apr. 5, 2021, No. H045033) 2021 WL 1248196, at *5 (quoting Richmond v. Dofflemyer (1980) 105 Cal.App.3d 745, 766).

Frivolous Delay Tactics by Defendants Attempting to Undermine the Statutory Procedure for an Interlocutory Judgment of Partition

One of the most common attempted delay tactics by defendants is to claim that the court must determine all offsets before ordering a sale of the property. This, they claim, means that the court must decide how many lightbulbs the defendant changed, determine the cost of each lightbulb, and find that the defendant owes their fractional share for those lightbulbs. The law on interlocutory judgments provides just the opposite that the interlocutory judgment of partition can be entered, and offsets decided later before a final judgment. Hiring a skilled partition attorney in California will ensure that the case is handled appropriately to bring about a prompt resolution. 

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 seven, full time partition lawyers, Talkov Law is the #1 partition law firm in California and has handled over 260 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.

References

References
1 Partition—in general, 12 Cal. Real Est. (4th ed.) § 40:126.
2 Statutory Types, 7 Witkin, Cal. Proc. 6th Judgments (2022) § 21.
3 40A Cal. Jur. 3d Judgments § 6 citing Barth-Wittmore Ins. v. H. R. Murphy Enterprises, Inc. (1985) 169 Cal.App.3d 124, 130 (“decree is interlocutory if further judicial action is essential to a final determination of the rights of the parties”).
4 Yeboah v. Progeny Ventures, Inc. (2005) 128 Cal.App.4th 443, 448, as modified on denial of reh’g (May 5, 2005)
5 Nature of Determination, 7 Witkin, Cal. Proc. 6th Judgments (2022) § 12
6 Starcevic v. Pentech Financial Services, Inc. (2021) 66 Cal.App.5th 365, 375–376 (quoting Pista v. Resetar (1928) 205 Cal. 197, 199, and citing Holt v. Holt (1901) 131 Cal. 610, 611–612 (“interlocutory decree of partition … is a final judgment, certainly, as to all questions determined in it”).)” Starcevic explained that: “As a final judgment on the matters determined therein, the court does not have the power to amend an interlocutory judgment after it becomes final, even in cases of error.”
7 George v. Williams (Cal. Ct. App., Jan. 18, 2022, No. 2D CIV. B309218) 2022 WL 152195, at *3.
8 Colmet-Daage v. Cremoux (Cal. Ct. App., Apr. 5, 2021, No. H045033) 2021 WL 1248196, at *1. One secondary source focused largely on non-California partition law explains that: “In the standard procedure, there has traditionally been the First Trial and the Second Trial. In a traditional partition suit, the First Trial would include three main issues: (i) determination of ownership interests, (ii) determination of equitable adjustment, and (iii) determination of the ability to partition the property in kind.” R. Shaun Rainey, Uniform Partition of Heirs’ Property Act: Partition with an Acetate Overlay, 13 Est. Plan. & Community Prop. L.J. 233, 248 (2020); see Bowman v. Stephens (Tex. App. 2018) 569 S.W.3d 210, 222 (“At the conclusion of the first stage of the partition litigation, a trial court may conclude that the property is susceptible to partition in kind and appoint and instruct commissioners to divide the property, taking into account the equitable and legal matters resolved in the first stage.”).
9 Finney v. Gomez (2003) 111 Cal.App.4th 527, 542.
10 Colmet-Daage v. Cremoux (Cal. Ct. App., Apr. 5, 2021, No. H045033) 2021 WL 1248196, at *5 (quoting Richmond v. Dofflemyer (1980) 105 Cal.App.3d 745, 766).
About Scott Talkov

Scott Talkov is a partition lawyer in California. He founded Talkov Law Corp. after more than one decade of experience with one of the region's oldest law firms, where he served as one of the firm's partners. He has been featured on ABC 7, CNN, KCBS, and KCAL-9, and in the Los Angeles Times, the Orange County Register, the San Diego Union-Tribune, the Press-Enterprise, and in Los Angeles Lawyer Magazine. Scott has been named a Super Lawyers Rising Star for 9 consecutive years. He can be reached about new matters at info@talkovlaw.com or (844) 4-TALKOV (825568). He can also be contacted directly at scott@talkovlaw.com.

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