Code of Civil Procedure (CCP) Section 872.130 - Partition Injunctions

California Code of Civil Procedure section 872.130 expands the court’s authority in an effort to make the court system more efficient when ordering a property to be partitioned. The section allows the court to issue temporary restraining orders and injunctions without the hurdles of contempt or general provisions to make such orders.

Code of Civil Procedure section 872.130 states

In the conduct of the action, the court may issue temporary restraining orders and injunctions, with or without bond, for the purpose of:

  • (a) Preventing waste.
  • (b) Protecting the property or title thereto.
  • (c) Restraining unlawful interference with a partition of the property ordered by the court.

(Amended by Stats. 1976, c. 73, p. 110, § 6.)

What Is an Example?

For example, “Steve” and “Natasha” were an engaged couple who decided to buy a house together. The couple had agreed to split the cost of the down payment, and then alternate paying the mortgage payments. Each was entitled to an undivided one-half interest in the house. After a year of living together however, Steve and Natasha realized that they were not meant for each other and called off the engagement. Steve wanted to sell the home, but Natasha wanted to keep the home and rent it out, so they could make a profit. The two refused to agree on how to move forward, so Steve, through a lawyer, filed an action for partition.

Ultimately, the trial court entered an interlocutory judgment and ordered a partition of the property by sale. However, Natasha, still upset over her failed engagement and loss of the partition suit, went to the property, and bashed all the windows with a bat, and destroyed the furniture in the home. As a result, Steve asked the court for a temporary restraining order directing Natasha not to enter the property or cause any further damage. The court granted the temporary restraining order and ordered the allocations of the costs of partition. The court subsequently ordered a preliminary injunction ordering the same.

Natasha appealed arguing that the trial court erred in awarding fees and costs to Steve related to injunctive relief because those proceedings were an independent cause of action and an injunction against Natasha for waste.

Contrary to Natasha’s claim however, the injunction proceedings were a crucial part of the partition proceeding itself, as it was aimed at protecting the value of the property against Natasha’s actions. Through section 872.130, the court had express power to order a preliminary injunction to protect the property. Therefore, the trial court’s order was upheld. Afterwards Steve worked on fixing the damage that had been made to the property and the house was able to be sold.

Law Revision Commission Comments (CCP § 872.130)

1976 Addition

Section 872.130 is new. It gives the court authority to take the protective steps described without having to rely either upon its contempt powers or the general provisions as to temporary restraining orders and injunctions.

Assembly Committee Comments

Section 872.130 is one of several statutes in California’s Partition Law lacking an official Assembly Comment under its wording. This is due, in part, to the Legislature’s overall adoption of the Law Revision Commission’s suggestions. The introduction to Assembly Bill 1671 (which ushered in this statute among others) states that the Commission’s recommendations “reflects the intent of the Assembly Committee… in approving the various provisions of Assembly Bill 1671.”

In practice, section 872.130 can be thought of as an extension of section 872.120. Section 872.120 provides that the court may make “… any decrees and orders necessary or incidental to carrying out the purposes of this title… .” The word “any” should not be taken lightly. “The use of the broad word ‘any’ suggests the Legislature did not want the category of information protected under the statute to be narrowly construed. (Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524, 533.) As such, section 872.130 elaborates on, but does not necessarily exhaust, the court’s broad equitable powers conferred upon them via statute.

Thus, if the court finds it necessary to exclude a party from the subject property for the benefit of both parties as a whole, it will likely have the power to fashion whatever remedy it believes competent to accomplish this purpose. “Where equity has acquired jurisdiction for one purpose, it will retain that jurisdiction to the final adjustment of all differences between the parties arising from the causes of action alleged.” (Klinker v. Klinker (1955) 132 Cal.App.2d 687, 694.)

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