Summers v. Superior Court (2018) Ownership Interests Determined Before Partition Judgment Entered

In the world of partition actions in California, lawyers have misunderstood the California Court of Appeal opinion in Summers v. Superior Court (2018) 24 Cal. App. 5th 138 as meaning that the interests of parties in the proceeds of sale must be determined before the court can enter an interlocutory judgment for partition by sale. In reality, Summers v. Superior Court merely found that the ownership interests of the parties in the property must be determined, e.g., that the parties each own a 50% interest in the property, before a partition judgment can be entered.

Specifically, California Code of Civil Procedure 872.720(a) is the California partition statute that allows the court to enter an interlocutory judgment of partition, thereby finding that a partition will be entered in the case. The statute provides that:

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.

Partition attorneys seeking to avoid the ruling that a partition judgment should be entered may try to quote only the following sentence in Summers v. Superior Court (2018) 24 Cal. App. 5th 138, 143: “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.” In turn, defendants in a partition action may mistakenly argue that “the interests of the parties in the property” that must be determined means the interests of the parties to any accounting claims of offset in a partition action. Indeed, almost every partition can include some type of claim of offset.

In reality, the phrase is in reference to the“ownership interests” of the parties. Indeed, this is made clear in Summers v. Superior Court (2018) 24 Cal. App. 5th 138, 143, which later “conclude[d] that the trial court lacked the authority to order the sale of the property before it determined the parties’ respective ownership interests.” Indeed, Summers explained “the statute’s plain requirement that the parties’ ownership interests be determined before or when the manner of partition is decided.”

In case this isn’t clear enough, Summers followed Stoffer v. Verhellen (1925) 195 Cal. 317, 318, where “[t]he plaintiff alleged ownership, as tenant in common with the defendant, of an undivided half interest in the property, with like interest in the defendant.” In Stoffer, “the defendant…den[ied] that the plaintiff had any interest in the property.” The Stoffer court concluded that, where “[t]he interlocutory decree entered in this case is entirely silent as to the quantity of interest of either of the parties to the proceedings, [it] is erroneous in that respect.”

In fact, a 2019 case explaining this exact meaning of Summers as follows:

“Interests,” within the meaning of Code of Civil Procedure section 872.720, refers to ownership interests. Summers v. Superior Court (2018) 24 Cal.App.5th 138, 140, 143-144.

Green v. Green-Jordan (Cal. Ct. App. Sept. 6, 2019) No. E070721, 2019 WL 4233918, at *6 (unpublished).