Summers v. Superior Court ( 2018 )

Filed 6/27/18 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
RICARDO IAN SUMMERS et al.,
Petitioners,
A151128
v.
THE SUPERIOR COURT OF SAN (San Francisco
FRANCISCO COUNTY, Super. Ct. No. CGC-16-550626)
Respondent; ORDER MODIFYING OPINION
WAN FEN TAN,
Real Party in Interest. [NO CHANGE IN JUDGMENT]
BY THE COURT:
It is ordered that the opinion filed herein on June 1, 2018, be modified as follows:
On page 6, the two sentences in the section titled Disposition shall be deleted and
replaced with the following:
Let a peremptory writ of mandate issue directing respondent superior court
in Tan v. Summers et al. (Super. Ct. San Francisco County, No. CGC-16-
550626) to vacate its order of January 24, 2017, and to enter a new and
different order consistent with this opinion. Summers and Gomez are
awarded their costs.
There is no change in judgment.
1
Dated:
_________________________
Humes, P.J.
Summers et al. v. Superior Court A151128
2
Filed 6/1/18 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
RICARDO IAN SUMMERS et al.,
Petitioners,
A151128
v.
THE SUPERIOR COURT OF SAN (San Francisco
FRANCISCO COUNTY, Super. Ct. No. CGC-16-550626)
Respondent;
WAN FEN TAN,
Real Party in Interest.
Ricardo Summers and Alejandro Gomez own investment real estate with Wan Fen
Tan, but the parties disagree on the amount of their respective ownership interests. The
trial court ordered the property to be partitioned and sold, with the parties’ ownership
interests to be determined at a later date. Summers and Gomez appealed. Although we
question whether the order was appealable, we construe the appeal as a petition for a writ
of mandate. On the merits, we hold that the partition statutes do not allow a court to
order the manner of a property’s partition, such as the sale here, before it determines the
ownership interests in the property. Accordingly, we reverse the trial court’s order.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
Our understanding of the background of this case is limited due to the slim
appellate record. We know, however, that in early 2016 Tan sued Summers and Gomez
to resolve a dispute about a piece of investment real estate they jointly own in San
Francisco. The dispute centered around the amount of each party’s ownership interest in
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the property and corresponding right to receive income from, and obligation to pay
expenses for, the property. Although our record does not include a copy, the complaint
apparently included claims for quiet title, partition, and an accounting. Summers and
Gomez answered and filed a cross-complaint, which apparently included claims for quiet
title, partition, and breach of contract.
In September 2016, Tan filed a motion for summary adjudication, requesting “the
property be partitioned and sold by private sale” with the sale proceeds to be held in
escrow until resolution of the litigation disputes. As part of her motion, Tan pointed out
that Summers and Gomez also sought a partition of the property. Summers and Gomez
opposed the motion. They recognized that all of the parties wanted a partition and sale,
but they claimed “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.” According to them, selling the property before establishing the parties’
ownership interests would amount to “a huge waste” because the sold property would not
generate rental income while the parties’ ownership interests were litigated.
A hearing was held in early January 2017, and shortly thereafter the trial court
granted Tan’s motion. In its ruling, the court stated, “Judgment is entered for 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.
II.
DISCUSSION
The trial court’s ruling was interlocutory in the sense that it left issues for future
determination. (See, e.g., Vivid Video, Inc. v. Playboy Entertainment Group, Inc. (2007)
147 Cal. App. 4th 434, 441.) We therefore begin by considering our ability to review the
ruling since interlocutory orders are generally not appealable unless they are expressly
authorized as such in Code of Civil Procedure1 section 904.1. Subdivision (a)(9) of that
1
All future statutory references are to the Code of Civil Procedure.
2
statute authorizes appeals to be taken “[f]rom an interlocutory judgment in an action for
partition determining the rights and interests of the respective parties and directing
partition to be made.” (§ 904.1, subd. (a)(9); see also § 872.720, sub. (a) [“[i]f 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”].) The trial court’s ruling here, however, pointedly did not determine the rights
and interests of the parties and instead ordered the property sold pending a future
determination of those rights and interests. Given the ruling’s failure to determine the
parties’ ownership interests, we question whether the ruling is an appealable interlocutory
judgment within the meaning of section 904.1, subdivision (a)(9).2 (See Degnan v.
Morrow (1969) 2 Cal. App. 3d 358, 364 [only portions of multi-faceted interlocutory order
that determined rights and interests of parties and ordered partition were appealable].)
We need not decide whether the ruling is an appealable interlocutory judgment,
however, because we exercise our discretion to treat the appeal as a petition for a writ of
mandate. Treating a purported appeal as a petition for writ of mandate is appropriate
when, as here, there is uncertainty about an order’s appealability. (Drum v. Superior
Court (2006) 139 Cal. App. 4th 845, 853.) It is also appropriate when the issue to be
decided is a pure question of law. (Black Diamond Asphalt, Inc. v. Superior Court
(2003) 114 Cal. App. 4th 109, 114-115.) The issue we are asked to decide here—whether
a court can order the sale of property in a partition action before determining the interests
of the putative property owners—is such a question.
Thus, we turn to consider the merits of Tan’s challenge. Since the issue is a
question of law, we apply a de novo standard of review in doing so. (See, e.g., Alberda v.
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Section 872.720, subdivision (a), specifies that the trial court, on finding that the
plaintiff is entitled to partition, shall render an “interlocutory judgment that determines
the interests of the parties in the property and orders the partition of the property.” It also
directs that such a judgment is to specify the “manner of partition,” unless “it is to be
determined later.” (Ibid.) Thus, it appears that, at a minimum, 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.
3
Board of Retirement of Fresno County Employees’ Retirement Assn. (2013)
214 Cal. App. 4th 426, 433-434.)3
“ ‘[P]artition’ is ‘the procedure for segregating and terminating common interests
in the same parcel of property.’ ” (14859 Moorpark Homeowner’s Assn. v. VRT Corp.
(1998) 63 Cal. App. 4th 1396, 1404-1405.) It is a “ ‘ “remedy much favored by the law.
The original purpose of partition was to permit cotenants to avoid the inconvenience and
dissension arising from sharing joint possession of land. An additional reason to favor
partition is the policy of facilitating transmission of title, thereby avoiding unreasonable
restraints on the use and enjoyment of property.” ’ ” (Cummings, supra, 13 Cal.App.5th
at p. 596.)
The governing statute is section 872.720. Subdivision (a) declares that “[i]f 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.” (§ 872.720, subd. (a).) The order of partition “shall order that
the property be divided among the parties in accordance with their interests as determined
in the interlocutory judgment.” (§ 872.810.) Section 872.720, subdivision (b), allows the
court to issue sequential interlocutory judgments for original concurrent and successive
owners if the court determines that it “is impracticable or highly inconvenient to make a
single interlocutory judgment that determines, in the first instance, the interest of all the
parties in the property.” (§ 872.720, subd. (b).)
When the trial court “determines the interests of the parties in the property and
orders the partition of the property,” it shall decide the manner of partition “unless [this]
is to be later determined.” (§ 872.720, subd. (a).) “The manner of partition may be ‘in
kind’—i.e., physical division of the property [citation] according to the parties’ interests
as determined in the interlocutory judgment. [Citations.] Alternatively, if the parties
3
The standard would have been essentially the same if we had decided that the
trial court’s ruling was an appealable interlocutory judgment. “The standard of review
for an interlocutory judgment of partition is abuse of discretion.” (Cummings v. Dessel
(2017) 13 Cal.App.5th 589, 597 (Cummings).) “Under that standard, . . . [a] ‘disposition
that rests on an error of law constitutes an abuse of discretion.’ ” (Ibid.)
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agree or the court concludes it ‘would be more equitable,’ the court may order the
property sold and the proceeds divided among the parties.” (Cummings, supra,
13 Cal.App.5th at p. 597; § 872.820.)
Two points are made clear by these provisions. 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. (§ 872.720, subd. (a).) 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. (Ibid.)
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. The court cited, and on
appeal Tan has provided, no authority to support such an approach. The little case
authority on the subject is consistent with the statute’s plain requirement that the parties’
ownership interests be determined before or when the manner of partition is decided.
(See Emeric v. Alvarado (1884) 64 Cal. 529, 609-612 [under predecessor statutes to
§ 872.720, trial courts must determine parties’ interests before ordering partition].)
Tan claims that Summers and Gomez forfeited their argument because the issue
“was never properly presented to the Trial Court.” She is mistaken. As we have
mentioned, in their response to Tan’s motion for summary adjudication, Summers and
Gomez argued that “the timing of the partition sale is not right since the parties have not
resolved the respective percentage of ownership” in the property. This was sufficient to
preserve the argument. Alternatively, Tan argues that the trial court did determine the
parties’ ownership interests because it concluded “that the parties are the owner of the
property and that none [of the parties] disputed that ownership.” 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.
We conclude that the trial court lacked the authority to order the sale of the
property before it determined the parties’ respective ownership interests. This holding,
however, does not prevent the court on remand from finding, after it determines the
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parties’ ownership interests, that “under the circumstances, sale and division of the
proceeds would be more equitable than division of the property.” (§ 872.820, subd. (b).)
III.
DISPOSITION
The trial court’s January 2017 order is reversed. Summers and Gomez are
awarded their costs.
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_________________________
Humes, P.J.
We concur:
_________________________
Margulies, J.
_________________________
Banke, J.
Summers et al. v. Superior Court A151128
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Trial Court:
San Francisco County Superior Court
Trial Judge:
Hon. Ronald Evans Quidachay
Counsel for Petitioners:
Arthur J. Liu, Inter-Pacific Law Group Inc.
Counsel for Real Party in Interest:
Daniel A. Conrad, Law Offices of Daniel A. Conrad
Elisabeth Hanowsky, Law Offices of Daniel A. Conrad
Summers et al. v. Superior Court A151128
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