Apple Valley, nicknamed “Apple of the Desert”, is an incorporated town in San Bernadino County with a population of 75,791 per the 2020 census. In the late 1950s, the Sky King TV series used Apple Valley as the location for most of its filming.
As of February 2025, the median sales price of homes in Apple Valley stands at $442,500, with homes remaining on the market for 78 days, according to Redfin. Apple Valley residents who own real estate may face disputes with co-owners.
There are at least four types of situations where a Apple Valley Partition Attorney may be helpful:
A partition action is an action brought by a co-owner of a piece of real property against another co-owner, seeking to divide the property according to the respective interests of the co-owners. In order to establish a right to a partition, a party must show that they have some ownership interest in the subject property. Under Code of Civil Procedure section 872.210, any owner of an estate of inheritance, an estate for life, or an estate for years in real property where such property or estate is owned by several persons concurrently or in successive estates may bring a partition action. (CCP § 872.210.) Therefore, a co-tenant has an absolute right to partition. (Formosa Corp. v. Rogers (1951), 108 Cal.App.2d 397.) At the Underwood Law Firm, our attorneys are more than familiar with partition actions and the step-by-step process of pursuing a partition.
Generally, a partition action cannot be stopped absent a valid waiver. Virtually universally, the instances in which a court has found a valid waiver have involved some sort of written contract or adverse possession of property. As such, many parties try to stop a partition action through mediation, or a buy-out agreement. In most instances, the parties to a partition action can benefit from creative lawyering by those who are familiar with the different options for resolving real estate disputes. The best Apple Valley Partition Lawyer will be able to share information on this process with you.
The first step to a partition action is to petition the court for a partition of the property. In order to petition the court, a litigant must file a legally valid complaint for partition. As noted above, the litigant must be a co-owner of the subject property in order to have standing to file a partition complaint. (CCP § 872.210.)
Second, after filing the complaint, a litigant must then obtain an interlocutory judgment of partition in the correct procedural form. An interlocutory judgment is a temporary judgment ordered before the close of trial during the litigation of the case. Under Code of Civil Procedure section 872.720, the court must enter an interlocutory judgment when the court finds that the Plaintiff in a partition action is entitled to a partition. In order to obtain an interlocutory judgment, a litigant must establish their right to partition by proving they have an ownership interest in the subject property.
Third, if the court finds that a litigant has an ownership interest in the subject property and grants an interlocutory judgment of partition, the court will then appoint a partition referee to oversee the partition of the property. A partition referee is a neutral third party appointed by and accountable to the court to assist the court in matters related to partition actions. (CCP § 873.510.)
Fourth, Once the referee has provided the court with their report, the court must determine the proper method for partitioning the subject property. The court determines the proper method of partition by determining which method of partition is more equitable.
Fifth, once the court has determined the proper method of partitioning the subject property, the court will then order a final judgment of partition, and the property will be partitioned according to the proper method determined by the court. If the court orders a partition by sale, there must be an accounting to distribute the proceeds of the sale in strict compliance with the requirements of the evidentiary code. A top Apple Valley Partition lawyer will be familiar with the process.
Code of Civil Procedure, section 874.010 states that “[t]he costs of partition include: (a) [r]easonable attorney’s fees incurred or paid by a party for the common benefit.”
Interestingly, the costs of partition can also include reasonable expenses necessarily incurred by a party for the common benefit in prosecuting or defending other actions or proceedings for the protection, confirmation, or perfection of title, setting the boundaries, or making a survey of the property. (CCP § 874.020.)
That attorney’s fees are considered “costs” associated with a partition action is important because Section 874.040 goes on to state the “court shall apportion the costs of partition among the parties in proportion to their interests or make such other apportionment as may be equitable.” A knowledgeable Apple Valley Partition Attorney will be able to give you good advice on these issues.
An action for partition may include an accounting so that the respective rights of the parties can be adjusted and settled. (Lazzarevich v. Lazzarevich, (1952) 39 Cal. 2d 48, 50–51.) A cotenant who has advanced fund to pay common expenses is entitled to reimbursement from the sale proceeds before the balance is divided and distributed to the cotenants. (Southern Adjustment Bureau, Inc. v. Nelson (1964) 230 Cal. App. 2d 539, 541.) A cotenant out of possession can require the cotenant in possession to account for rents and profits or other compensatory adjustment in the division of sale proceeds. (CCP § 872.430.) An experienced Apple Valley Partition Attorney will be intimately familiar with these matters.
A partition is a legal procedure in which the court shall segregate and terminate the common interests in a piece of real property. Generally, when the court finds that the plaintiff is entitled to a partition by sale, the court shall issue an interlocutory judgment determining each party’s interest and order the property be sold and proceeds divided among parties in accordance with their interests. (CCP § 872.820.) A partition by sale will be ordered if partition by division of the property would be less equitable. (CCP § 872.820 (b).) The following paragraphs discuss how improper service can void a partition judgment entirely (Braugh v. Dow (2023) 93 Cal.App.5th 76.)
Jane Braugh brought a partition action against her significant other Roy Dow. They were not married but owned a family home as joint tenants. Their relationship ended in 2013 and went through a custody battle regarding their daughter during 2018 and 2019. Braugh is an attorney. In April 2018 Braugh filed a complaint against Dow for partition, accounting and compensatory adjustments and injunctive relief regarding the property.
Braugh was seeking partition because Dow had not paid the mortgage or liens since 2004 and refused to pay for repairs or improvements. Dow’s refusal to make an accounting meant the proceeds from the property or future profits were in danger of being lost or diminished. Braugh claimed she was entitled to an accounting and compensatory adjustments for spending in excess of her share of repairs and improvements. Braugh alleged she has been damaged around $600,000 and requested quiet title of the property and its sale.
In May 2018, Braugh filed a proof of summons stating that she served Dow herself with the summons and complaint. Dow signed the proof of service summons which stated she was not a party to his action. In June 2018 Braugh filed a request for entry of default which the court granted. At a scheduled prove up hearing Braugh represented herself and submitted a proposed judgment and order. Following that hearing the court quieted title to the property and ordered transfer of Dow’s interest to Braugh. In October 2018, a grant deed was recorded with these changes.
In July 2020, Dow filed a motion to set aside the default and default judgment arguing they were void as a matter of law pursuant to CCP § 473 subdivision (d), or alternatively (b). Dow argued the service of the summons was defective as Braugh was a party to the action which violated section 414.10. He argued this resulted in a lack of personal jurisdiction over him meaning the judgment was void.
Dow provided a declaration supporting this motion that it took Dow until October 2019 to realize, through his new family law counsel, that Braugh had entered a default judgment. In April 2018 a former family law attorney had received a copy of the draft complaint but did not accept service on behalf of Dow. Ultimately, Dow argued it was immaterial whether he actually received the summons and complaint because of Braugh’s lack of compliance with the statute. Additionally, because Braugh is an attorney she would know service was in violation of the statute. As such, he argued he would be severely prejudiced if he was unable to defend himself and have the case decided on the merits.
In August 2020, Braugh filed a motion to set aside. She argued Dow admitted in his motion he was personally served in 2018 which gave him actual notice of the lawsuit even if neither he nor his lawyers did anything. Braugh submitted a declaration about trying to settle the lawsuit by giving the draft to him via email. She also stated she emailed Dow in July 2018 informing him he was in default and the emailed a second time stating since she received no response, she assumed he did not want to negotiate further and would proceed with seeking a judgment.
In late July 2018, Braugh received an email from someone purporting to be Dow’s attorney stating they represented him and asked for all communications to be sent through them, with the email specifically acknowledging the partition lawsuit. Braugh responded saying she did not see a demand in the email and that she would need to see a demand and allegedly did not hear from him again.
In September 2020 the trial court continued the matter to allow Braugh to file supplemental briefing and further argument. In October the trial court heard arguments and withdrew a tentative ruling. In December 2020, the trial court set an order to show cause as to why the court should not reconsider the ruling denying the motion to set aside.
Before the next hearing in January 2021, the trial court issued a tentative ruling granting Dow’s motion to set aside and finding that the judgment was void.
In January 2021 Dow submitted on the court’s tentative. Braugh argued there was substantial compliance with service of process rules and the judgment was simply voidable. Additionally, Dow’s motion was filed after the six month expiration window. The court vacated the default and default judgment. Braugh appealed to the Second District Court of Appeal. Braugh argued the motion was untimely filed and the court abused its discretion in failing to consider whether Dow was estopped by his conduct from setting aside the judgment.
Section 473, subdivision (d) provides “a trial court may, on motion of either party after notice to the other party, set aside any void judgment or order.” The use of the word “may” mean the trial court has discretion. Additionally, if a judgment is void on its face the six-month limit set by section 473 does not apply. If it is invalid on the face of the record that is sufficient. Otherwise, a judgment that appears valid but is void in considering extrinsic evidence may meet the requirement set by the statute. For example, improper service results in a lack of jurisdiction in a fundamental sense and judgment would not be able to be entered. Separately a court can lack fundamental authority making its judgment void or it can act outside of its jurisdiction or defined power which will make the judgment void.
The court of appeal held the mere technicality of service issues as Braugh alleged was not that. It was an issue of fundamental jurisdiction. As such the trial court acted without authority in entering default judgment against Dow. Here the proof of service of summons was facially invalid. Braugh signed under penalty of perjury that she was not a party to this action. Service did not comply with the statute. The statute is intended to prevent fraudulent service from people with an adverse interest in that very action.
Braugh also alleged even if the judgment was facially void, she substantially complied and gave Dow actual notice. The court of appeals disagreed. Substantial compliance does not apply where a party serves its own summons and complaint. Additionally with the emails with the family law attorney purporting to be Dow’s attorney, the emails did not show Dow had notice Braugh filed the partition complaint. He was never properly served, so even if he made an appearance that is not a waiver of a defective service. Ultimately the trial court did not abuse its discretion in granting Dow’s motion to set aside the default and default judgment. The court did not obtain personal jurisdiction over Dow due to improper service by Braugh. The court of appeal did not consider the estoppel argument.
A court’s determination of how a partition sale is to be conducted depends on the facts and circumstances of each particular case. Factors such as proper service and notice of a lawsuit can ultimately affect the outcome of a partition case. If you are considering partition as an option, or find yourself defending one, then you may benefit from good legal advice on the topic. Please contact Underwood Law Firm, P.C., for an initial consultation.
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