California Partition Law Blog
In California, in many partition actions, the court may enter an interlocutory judgment of partition, whereby there is an entry of judgment for partition. As opposed to a final judgment, an interlocutory judgment is a temporary judgment that is issued during the litigation of a case rather than after trial.
In general, interlocutory judgments are judgments entered before a trial comes to an end. “An interlocutory judgment or order is a provisional determination of some or all issues in the cause.” (7 Witkin, Cal. Procedure, supra, Judgement, § 12, p. 548.) Witkin identifies three different types of interlocutory judgments that exist.
The motion for an interlocutory judgment is a common issue in partition actions. Specifically, 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. At Underwood Law Firm, our attorneys are more than familiar with the interlocutory judgment and requirements needed to get an interlocutory judgment.
What are the Characteristics of an Interlocutory Judgement?
A standard interlocutory judgment typically has two characteristics: (1) it is not final for the purposes of appeal, and (2) it is not final for the purposes of trial. (Yeboah v. Progeny Ventures, Inc. (2005) 128 Cal.App.4th 443, 449 [27 Cal.Rptr.3d 150, 155].)
For example, “Molly” and “Jake,” are former romantic partners who jointly purchased a triplex before they broke up. Molly has wanted to sell the triplex; however, Jake refuses because he is a resident of the triplex. Molly has now initiated a partition action against Jake. After establishing her right to partition, Molly moves for entry of an interlocutory judgment, which the court grants. However, it is important to note that this judgment is not a final judgment because the trial has not come to an end, and therefore, it is an interlocutory judgment.
What Are the Types of Interlocutory Judgements?
Witkin recognizes three different types of interlocutory judgments. One type of interlocutory judgment is a judgment “where the ultimate judgment will be unconditional, but basic issues of law must be determined before evidence is heard and a final judgment rendered; e.g., an interlocutory order determining the right to an accounting, then taking of the account and judgment for the amount found due.” (7 Witkin, Cal. Procedure, supra, Judgement, § 12, p. 548-549.) Witkin refers to this interlocutory judgment as “unresolved issues.”
The second type of interlocutory judgments are those judgments that are “conditional, the successful party having the election to comply with the conditions and obtain final judgment; e.g., a conditional decree for specific performance or quiet title.” (7 Witkin, Cal. Procedure, supra, Judgement, § 12, p. 548-549.) Witkin refers to this interlocutory judgment as “Conditional judgments.”
Finally, the last type of interlocutory judgment is those judgments that are statutory types of interlocutory judgments, like those interlocutory judgments permitted by the California Partition statute in partition actions, as shown in the example above. (7 Witkin, Cal. Procedure, supra, Judgement, § 12, p. 548-549.) In California, Code of Civil Procedure section 872.720 permits an interlocutory judgment for partition once the right to partition has been established. Code of Civil Procedure section 872.720 is a statutory type of interlocutory judgment. Therefore, in the example above, the interlocutory judgment granted to Molly after she established her right to partition is the third type of interlocutory judgment identified by Witkin, a statutory decree.
What is Required to Get an Interlocutory Judgement in a Partition Action?
In California, an interlocutory judgment in a partition action may be entered in two different circumstances. An interlocutory judgment may be entered when the court finds that the ownership interests in the subject property are undisputed. (CCP § 872.720.) Second, an interlocutory judgment in a partition action shall be entered when Plaintiff proves that a partition is proper. (CCP § 872.720(a).) However, in order to receive an interlocutory judgment in a partition action, two elements need to be satisfied. (Summers v. Superior Court (2018) 24 Cal.App.5th 138, 143 [234 Cal.Rptr.3d 63, 67, 24 Cal.App.5th 138, 143].) First, the court must determine the interest of the parties in the subject property and an order granting a partition. (Id.; CCP § 872.720(a).) Second, the manner of the partition must be identified, whether it be a physical partition or a partition by sale. (Id.)
In Summers, Plaintiff filed a suit against Defendant for partition. After the Plaintiff moved for summary judgment, the trial court issued an interlocutory judgment granting a motion for partition before determining the ownership interests of the parties. (Id.) The Court of Appeals reversed the trial court’s holding, stating that a determination of ownership interests must be made before an interlocutory judgment for partition is granted. (Id.) In our example set forth above, Molly got an interlocutory judgment because she was able to establish her right to partition the triplex. Therefore, Molly would not be able to get an interlocutory judgment for partition if she is unable to provide sufficient proof that she owns a one-half interest in the triplex with Jake.
How Can the Attorneys at Underwood Law Assist You?
Establishing a right to an interlocutory judgment can prove to be a difficult task once in court. In most circumstances, a litigant must prove certain elements in order to get an interlocutory judgment. For example, to receive an interlocutory judgment for partition, a litigant must provide sufficient evidence to prove they have a right to partition the subject property. It follows, then, that getting an interlocutory judgment in a partition action can be a complex process.
As each case is unique, property owners would be well-served to seek experienced counsel familiar with the ins and outs of an interlocutory judgment and the law surrounding it. At Underwood Law, our knowledgeable attorneys are here to help. If you are attempting to assert a partition claim, are worried about your ability to get an interlocutory judgment, or if you just have questions, please do not hesitate to contact our office.
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