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Code of Civil Procedure (CCP) Section 872.720 - Interlocutory Judgment

Code of Civil Procedure section 872.720 requires the court to make an interlocutory judgment if it finds that the plaintiff is entitled to partition. While this statute would appear to provide for the granting of interlocutory judgments with relative ease, the reality is that this statute is ambiguous, and courts will approach it differently from county to county.  

Code of Civil Procedure section 872.720 states:

(a) 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.

(b) If the court determines that it is impracticable or highly inconvenient to make a single interlocutory judgment that determines, in the first instance, the interests of all the parties in the property, the court may first ascertain the interests of the original concurrent or successive owners and thereupon make an interlocutory judgment as if such persons were the sole parties in interest and the only parties to the action. Thereafter, the court may proceed in like manner as between the original concurrent or successive owners and the parties claiming under them or may allow the interests to remain without further partition if the parties so desire.

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

What Is an Example?

“Shawn” and “Julie” are an unmarried couple who decide to move in together. They buy a house in Los Angeles as joint tenants and start living together. They generally split the expenses and costs of the property equally.

Unfortunately, Shawn and Julie’s relationship deteriorates, and they break up. They cannot agree on what to do with the property. Shawn wants to sell the house and move on, so he sues Julie for partition by sale.

At trial, the court finds that Shawn is entitled to partition. Pursuant to CCP § 872.720, Shawn motions for the court to issue an interlocutory judgment for a partition by sale. Julie objects, arguing that the court should determine the accounting along with the partition.

Under CCP § 872.720, however, the court must make an interlocutory judgment for partition if it finds that the plaintiff is entitled to partition. The court does not have to include an accounting in the order, and can order an accounting later if necessary.

Law Revision Commission Comments (CCP § 872.720)

1976 Addition

Subdivision (a) of Section 872.720 continues the portion of former Section 763 that required a court order of “partition according to the respective rights of the parties as ascertained by the court.” Subdivision (b) continues the substance of former Section 760. The interlocutory judgment of partition is appealable. See Section 904.1(i); contrast Emeric v. Alvarado, 64 Cal. 529 (1884).

Assembly Committee Comments

As is the case with many of the partition statutes, section 872.720 does not include a comment from the Legislature in its official capacity. This is the norm, however, because the Legislature endorsed an overall adoption of the Law Revision Commission suggestions when it passed the new partition statutes in 1976.

In fact, the introduction to Assembly Bill 1671 (the bill that contained the new partition laws) states that the Revision Commission’s recommendations “reflect the intent of the Assembly Committee… in approving the various provisions of Assembly Bill 1671.” This demonstrates that the intent of the Legislature was more or less in line with that of the Revision Commission.

Unfortunately, if there was one single partition statute in the entire code in need of guidance from the Legislature, it is section 872.720. And that’s because, procedurally, the statute is ambiguous.

For instance, the First District Court of Appeal interpreted the statute as imposing “two elements: a determination of the parties’ interests in the property and an order granting partition. 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 to be determined, but not before.” (Summers v. Superior Court (2018) 24 Cal.App.5th 138, 143.)

While that appears to be a straightforward explanation, there is still a question as to when the interlocutory judgment may be granted. For example, if the defendant does not deny that the plaintiff is a co-owner, and the defendant does not plead “waiver” in their answer, then that would seem to allow a plaintiff to move for an interlocutory judgment. There is no way that the defendant can deny the plaintiff’s right to partition. (CCP § 872.710.)

But certain courts across the state, despite uncontroverted evidence of ownership interests, mandate the interlocutory judgment not be issued until after trial or via summary judgment. This, though, seems to contradict the statute’s command that the court “shall” make an interlocutory judgment if the court finds that the plaintiff is entitled to partition. (CCP § 872.720(a).)

As such, cases with virtually identical facts may have wildly different procedural postures because in one, the court refused to allow an interlocutory judgment pre-trial, whereas in the other, the court had no problem issuing an interlocutory judgment even before summary judgment.

Thus, until the Legislature revisits these statutes, the timing on obtaining an interlocutory judgment will depend on both the court and sophistication of each individual attorney’s argument.

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