Code of Civil Procedure (CCP) Section 873.950 – Motion to Confirm, Modify, or Set Aside Report

Code of Civil Procedure section 873.950 provides for who may move the court regarding the referee’s report, and the applicable time limits for doing so in terms of notice. After the referee has prepared the report regarding a partition by appraisal, any part, or the referee themselves, may move the court to confirm the appraisal sale, modify it, or set it aside.

Code of Civil Procedure section 873.950 states:

Any party to the agreement or the referee, upon 10 days’ notice to the referee if the referee is not the moving party and to the other parties to the agreement, may move the court to confirm, modify, or set aside the report.

What is an Example?

“Shawn” and “Julie” are siblings who inherit a farm from their grandfather. Eventually, the siblings feud over management of the farm and Shawn sues to partition the property by sale.

During the initial stages of the lawsuit, the parties conduct discovery, take each other’s depositions, and file several competing motions on the pleadings. After each has poured thousands and thousands of dollars into litigation, they realize that it would be best if they worked together for Shawn to simply buy out Julie’s interest in the farm.

They draft up a document relaying to the court that they are in agreement to partition the property through the appraisal process, where Shawn will buy out Julie at an agreed-upon appraisal price, and file it with the court clerk under CCP § 873.920.

After the agreement is filed, Shawn files a motion to approve the partition by appraisal agreement under CCP § 873.930. The court reviews the agreement, finds that it is ultimately fair and equitable, and gives its approval for the property to be partitioned via the appraisal process.

Once this is done, pursuant to CCP § 873.940, the court appoints a partition referee who prepares and files a report on the valuation of the property, while also identifying any outstanding liens.

After the report is prepared, Shawn, Julie, or the referee may move to confirm the report, modify it, or set it aside.

Law Revision Commission Comments (CCP § 873.950)

1976 Addition.

Section 873.950 is new. It follows other partition procedures with respect to a motion for hearing on the referee’s report.

Assembly Committee Comment

Like with most of the partition statutes, section 873.950 does not include an “official” Assembly Committee Comment from the California Legislature. But this is usual. And that’s 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 essentially in line with that of the Revision Commission.

As to the comment and statute, they are essentially a copy of the of the motion to confirm statute provided in section 873.720 for ordinary partition sales.

Like with section 873.950, section 873.720 provides for 10 days’ notice to the other parties for any party, or the referee, to move the court to confirm, modify, or set aside the referee’s report.

Section 873.720 drew inspiration directly from the repealed partition statutes, particularly former section 784. That provision once read:

“Thereafter, any purchaser, the referee, or any party to the action may, upon 10 days’ notice to the other parties who have appeared therein, and also to the purchaser if he be not the moving party, move the court to confirm or set aside any sale or sales so reported.”

As one can see, the difference between this portion of former section 784 and section 873.720 is minimal. Both statutes provide confirmation of rescission of the sale, provided the moving party gives ten days’ notice of the motion.

The reason this statute exists is for the protection of the parties. After the court orders the property to be sold, the partition referee will sell the property and issue a report of sale under section 873.710. This report must include all relevant information related to the sale, such as the price, identity of the buyer, etc. And it is this report which must be set aside or confirmed. By listing out all relevant information pertaining to the sale, the report allows for the parties to analyze the sale with the requisite level of scrutiny. This, in turn, allows for the parties to issue objections and for the court to weigh those objections.

Interpreting the former section 784, the Supreme Court stated that the referee’s report was, in essence, a protectionary measure. “No sale made would be valid until reported to and confirmed by the court and if, for any reason, the price realized was so low as to justify the court in concluding that the sale had not been fair to all parties concerned, confirmation would be refused and a resale ordered.” (Schoonover v. Birnbaum (1907) 150 Cal. 734, 736.)

As such, section 873.720, and thus section 873.950, are merely part of the sales and appraisal confirmation procedure in they set out the required amount of notice for the confirmation hearing. This is not to say the statutes aren’t important; only that their functionality is limited and straightforward. They set out who may move to confirm the sale, and the time limits for doing so.

Contact Us

Here at Underwood Law Firm, our knowledgeable attorneys are here to help navigate the complex web of case law and statutes surrounding partitions. If you are thinking of filing a partition, are already in the midst of a partition suit, or just have any questions, please do not hesitate to reach out to our office.

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