Code of Civil Procedure (CCP) Section 873.070 - Petition For Instructions
Code of Civil Procedure section 873.070 describes a procedure for the referee, or any party, to ask the court for instructions regarding the referee’s duties. It is a simple statute that provides the opportunity to parties and referee to clear up any potential ambiguities before proceeding with the sale.
Code of Civil Procedure section 873.070 states
The referee or any party may, on noticed motion, petition the court for instructions concerning the referee's duties under this title.
(Amended by Stats. 1976, c. 73, p. 110, § 6.)What Is an Example?
“Shawn” and “Julie” are an unmarried couple. They decide to buy a home as joint tenants and move in together.
Unfortunately, Shawn and Julie’s relationship doesn’t work out, and they break up. They cannot agree on what to do with the property. Shawn wants to sell the home and move on, so he sues for partition by sale.
Eventually, the court orders the property to be sold and the sale proceeds distributed. The court also appoints the referee to oversee the partition. The referee lists the property for sale and begins reviewing bids. The referee keeps Shawn and Julie informed of all incoming bids.
After a while, the referee finds a potential buyer who had outbid everyone else. The referee shows the bid to Shawn and Julie and gives them both a chance to outbid the potential buyer. Shawn doesn’t believe that the referee has this authority, so pursuant to CCP § 873.070 he petitions the court for instructions.
In response, the court holds that the referee can offer the owners a chance to outbid the potential buyer. Through CCP § 873.070, all parties can easily and efficiently establish the referee’s duties in ambiguous situations.Law Revision Commission Comments (CCP § 873.070)
Section 873.070 is new. It is intended to enable the referee and parties expeditiously to resolve any administrative problems that arise in the execution of the referee's duties.Assembly Committee Comments
As is the case for most of the partition statutes, section 873.070 does not include a an “official” Assembly Committee Comment from the California Legislature. But this is 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 substantially in line with that of the Revision Commission.
Regardless, the comment makes clear that this statute is aimed at clarifying administrative issues once the referee begins their duties. For litigants unfamiliar with partitions, once the court enters the interlocutory judgment ordering the sale, the case is far from over.
Instead, the appointment of the referee contemplates further issues may arise that require court intervention. For instance, the interlocutory judgment may state the property will be sold at a public sale, but neglect to mention whether the property may be purchased with cash, or on credit, or whether the parties themselves can make bids, or how long the property will be marketed, or whether it will be placed on the MLS, etc.
As such, this statute provides a summary method to the parties and to the referee themself to ask the court for instructions on how to proceed. Litigants should recognize that this is not uncommon, given how difficult it can be to properly sell and market property.
This statute also reflects the more general principle that the court has broad authority to issue all necessary orders while a partition is actually pending. “In the conduct of the action, the court may hear and determine all motions, reports, and accounts and may make any decrees and orders necessary or incidental to carrying out the purposes of this title and to effectuating its decrees and orders.” (CCP § 872.120.)