A California court cannot order co-owned property sold in a partition until it decides how much of the property each co-owner owns. In Summers v. Superior Court (2018) 24 Cal.App.5th 138, the Court of Appeal reversed an order selling a San Francisco investment property “with the parties’ ownership interests to be determined at a later date.” The “interests of the parties” that must be decided first under Code of Civil Procedure section 872.720 are each co-owner’s ownership share, such as 50 percent each, not their claims for reimbursement or credits.
This comes up in almost every partition action, because almost every one includes a claim for offsets and credits for mortgage payments, taxes, repairs, or rent. Some defendants read Summers to mean every one of those claims must be tried before the court can enter an interlocutory judgment of partition. The opinion does not say that, and later Court of Appeal decisions read it the same way we do: “interests” means ownership interests.
Why Summers v. Superior Court Matters
- Ownership shares come first. The sale or physical division “is to be decided when or after the parties’ ownership interests are determined, but not before.” (Summers, at p. 143.)
- “Interests” means ownership interests. The opinion uses “the parties’ interests” and “the parties’ ownership interests” interchangeably, and the property is divided by the shares fixed in the interlocutory judgment.
- Offset claims do not hold up the judgment. Nothing in Summers requires the accounting to be finished first. Credits and reimbursements are settled when the sale proceeds are distributed.
- Agreeing that everyone is an owner is not enough. The court has to decide each owner’s respective share, not just that the parties own the property together. (Summers, at p. 143.)
- A sale is still available. Once the shares are decided, the court can still order a sale when it “would be more equitable than division of the property.” (Summers, at pp. 143–144.)
The Facts: A San Francisco Investment Property and a Sale Ordered Too Soon
Ricardo Summers and Alejandro Gomez owned a piece of San Francisco investment real estate with Wan Fen Tan. They disagreed about how much of the property each of them owned, and so about each one’s right to the rental income and duty to pay the expenses. In early 2016, Tan sued Summers and Gomez for quiet title, partition, and an accounting. Summers and Gomez cross-complained for quiet title, partition, and breach of contract.
In September 2016, Tan moved for summary adjudication, asking that “the property be partitioned and sold by private sale,” with the proceeds held in escrow until the disputes were resolved. Summers and Gomez also wanted a sale, but they argued that “the timing of the partition by sale is not right since the parties have not resolved the respective percentage of ownership and respective liabilities for the property.” Selling first, they said, would be “a huge waste,” because the property would stop producing rent while the ownership fight went on.
In January 2017, the trial court granted the motion and ordered “the real property [at issue] to be partitioned and sold by private sale, for all liens to be paid, a referee shall be appointed, and all sale proceeds shall be held in escrow until final resolution of this matter.” Summers and Gomez appealed.
How the Court of Appeal Decided the Case
The Court Treated the Appeal as a Writ Petition
Code of Civil Procedure section 904.1, subdivision (a)(9), allows an appeal from an interlocutory judgment in a partition action “determining the rights and interests of the respective parties and directing partition to be made.” The trial court’s order “pointedly did not determine the rights and interests of the parties,” so the Court of Appeal questioned whether it could be appealed at all. Rather than decide that, the court treated the appeal as a petition for a writ of mandate, because the issue was a pure question of law.
An Interlocutory Judgment Has Two Required Elements
“First, 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.”
Summers v. Superior Court (2018) 24 Cal.App.5th 138, 143, as modified (June 27, 2018)
The order granting partition is the court’s finding that the plaintiff has the right to partition, for example that there has been no waiver of the right to partition. The judgment does not have to say how the property will be partitioned. In a footnote, the court explained that “while it may, it need not, include the manner of partition.” (Summers, fn. 2.)
“Second, the manner of partition—i.e., a physical division or sale of the property—is to be decided when or after the parties’ ownership interests are determined, but not before.”
Summers v. Superior Court (2018) 24 Cal.App.5th 138, 143
The trial court’s order broke that rule because it sold the property first and left the ownership shares for later. The court found no authority for that approach and pointed to “the statute’s plain requirement that the parties’ ownership interests be determined before or when the manner of partition is decided.” (Summers, at p. 143, citing Emeric v. Alvarado (1884) 64 Cal. 529, 609–612.)
Agreeing That Everyone Is an Owner Is Not Enough
Tan argued that Summers and Gomez had forfeited the objection. The court disagreed: their opposition to the motion said the sale was premature because ownership percentages were unresolved, and that was enough. Tan also argued that the trial court had decided the parties’ interests, because no one disputed that the parties owned the property. The court rejected that too:
“But the issue is not whether the parties collectively own the property, which has never been disputed. Instead, the issues are the parties’ respective ownership interests and the court’s authority to order the manner of partition before determining those interests.”
Summers v. Superior Court (2018) 24 Cal.App.5th 138, 143
Summers did not block the sale. It only put it in the right order. The court said its holding does not prevent the trial court, after it decides the ownership shares, from finding that “under the circumstances, sale and division of the proceeds would be more equitable than division of the property.” (Summers, at pp. 143–144, quoting Code of Civil Procedure section 872.820, subd. (b).) That is the usual result in California, as our guide to partition by sale explains, and the court relied on Cummings v. Dessel for the choice between a sale and a physical division.
The Result
The Court of Appeal reversed the trial court’s January 2017 order and awarded Summers and Gomez their costs. The case went back to the trial court to decide each owner’s share first, with a sale still available after that.
“Interests” Means Ownership Interests, Not Offset Claims
The statute Summers applied, Code of Civil Procedure section 872.720, subdivision (a), provides:
“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.”
Code of Civil Procedure section 872.720, subd. (a)
Defendants trying to put off the interlocutory judgment sometimes quote only one sentence of Summers: “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, at p. 143.) They then argue that “the interests of the parties in the property” includes every accounting claim for offsets, so the judgment must wait until those claims are tried. Since almost every partition includes some claim of offset, that reading would delay almost every partition.
The rest of the opinion forecloses it. Summers “conclude[d] that the trial court lacked the authority to order the sale of the property before it determined the parties’ respective ownership interests,” and described “the statute’s plain requirement that the parties’ ownership interests be determined before or when the manner of partition is decided.” (Summers, at p. 143.) The opinion opens by noting that “the parties disagree on the amount of their respective ownership interests,” faults the trial court for ordering a sale “with the parties’ ownership interests to be determined at a later date,” and holds that a court cannot order the manner of partition “before it determines the ownership interests in the property.”
The statutes point the same way. Summers quoted Code of Civil Procedure section 872.810, which requires the property to be divided among the parties “in accordance with their interests as determined in the interlocutory judgment.” Property can only be divided by ownership shares, so the “interests” fixed in the interlocutory judgment are those shares. Claims for offsets and credits are decided later, when the sale proceeds are divided.
As summarized by one of the leading real property treatises, the Summers “trial court lacked authority to order sale of property before determining parties’ respective ownership interests; [Code of Civil Procedure section 872.720, subdivision (a)] makes clear that manner of partition must be decided when or after ownership interests are determined.” [1]
Older California Supreme Court decisions say the same thing. Summers relied on Emeric v. Alvarado (1884) 64 Cal. 529 for the rule that trial courts must determine the parties’ interests before ordering partition. And in Stoffer v. Verhellen (1925) 195 Cal. 317, 318, “[t]he plaintiff alleged ownership, as tenant in common with the defendant, of an undivided half interest in the property, with like interest in the defendant.” In Stoffer, “the defendant…den[ied] that the plaintiff had any interest in the property.” The Stoffer court concluded that, where “[t]he interlocutory decree entered in this case is entirely silent as to the quantity of interest of either of the parties to the proceedings, [it] is erroneous in that respect.”
A 2019 Court of Appeal decision read Summers the same way:
“Interests,” within the meaning of Code of Civil Procedure section 872.720, refers to ownership interests. Summers v. Superior Court (2018) 24 Cal.App.5th 138, 140, 143-144.
Green v. Green-Jordan (Cal. Ct. App. Sept. 6, 2019) No. E070721, 2019 WL 4233918, at *6 (unpublished)
Later Court of Appeal decisions agree. In Wright v. Green (Cal. Ct. App. Jan. 15, 2026) No. A173073, 2026 WL 114702, at *5 (unpublished), an Alameda County case, the court described a partition by sale as two steps. First, the court “determines the interests of the parties in the property and the right to partition, issues an interlocutory judgment, and orders the partition of the property,” citing Summers. Then a referee sells the property and the court distributes the proceeds “subject to offsets or credits due between the cotenants.” The offset claims come at the end, not before the judgment. Talkov Law represented the plaintiff, Michael Wright, who owned 10 percent of an Oakland duplex and obtained a partition by sale over his 90 percent co-owner’s objections.
In Hadar v. Luria (Cal. Ct. App. Feb. 15, 2023) No. A161387, 2023 WL 2008778, at *4, *7 (unpublished), a Contra Costa County co-owner argued that under Summers, any ownership dispute had to be tried before a partition sale could be ordered. He pointed to his separate lawsuit demanding title to the property and to claims that his co-owner had breached fiduciary duties. The Court of Appeal rejected the argument. Each side undisputedly owned 50 percent, the allegations in his pleading could not create a triable ownership dispute, and the accusations of misconduct “do not affect the parties’ equitable rights given the undisputed nature of plaintiffs’ unwaived right of partition.”
What Summers v. Superior Court Means for California Co-Owners
- Get the ownership shares decided in the interlocutory judgment. That is the step Summers requires before a sale. Our guide to obtaining an interlocutory judgment of partition explains how it is usually done by motion rather than trial.
- Don’t let offset claims hold up the sale. Mortgage, tax, repair, and rental-value claims belong in the final accounting. See what a partition court can decide.
- Ownership disputes are decided inside the partition. A fight over who owns what does not require a separate lawsuit. See our guide to quiet title and partition and our summary of De Uprey v. De Uprey.
- A sale is still the usual result. Once the shares are set, the court can order a sale under Code of Civil Procedure section 872.820.
- An appeal usually does not stop the sale. See whether appealing a partition judgment stops the sale.
Summers requires the court to decide each co-owner’s share before it orders a sale, not to try every claim for credits first. A partition action lets you enforce your right to partition, fix the ownership shares, and move the property to a sale, with the credits settled at the end.
Talkov Law can help. With 12 full-time partition attorneys and experience in over 650 partition actions throughout California, our team handles every step, from proving each co-owner’s share in the interlocutory judgment through the partition sale and the final accounting of who paid what. Call (877) PARTITION (727-8484) today or contact us online for a free 30-minute consultation.
References
| ↑1 | 12 Witkin, Summary of California Law (11th ed., May 2026 update) Real Property, § 74. |
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