Code of Civil Procedure (CCP) Section 872.120 - General Authority to Hear Motions and Make Orders and Decrees

California Code of Civil Procedure section 872.120 is one of the most important statutes within California’s Partition Law. It grants the court continuing jurisdiction to hear all motions and issue any necessary decrees in order to fulfill the purpose of the partition title. Put differently, the statute grants judges broad authority to fashion whatever orders they believe are needed to ensure partitions are completed in an equitable manner.

Code of Civil Procedure section 872.120 states

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. "Action" means an action for partition under this title.

(Amended by Stats. 1976, c. 73, p. 110, § 6.)

For example, “Mike” and “Anthony” purchased a two-bedroom single-family home as tenants in common, meaning that they each owned a separate 50 percent interest in the property with the right to sell or transfer their respective share. Mike and Anthony’s relationship soured due to multiple disputes over how to divide unexpected repair and renovation costs between the two of them. Mike wanted to sell the property because he could not reach a compromise with Anthony nor could afford to pay the renovation costs. Mike asked Anthony if they could sell the property on the private market and divide the proceeds according to their interest with the renovation and repair expenses deducted from the sales proceeds. Anthony refused to sell the property.

Because tenants in common have an absolute right to partition, regardless of the wishes of another co-tenant, Mike sought an interlocutory judgment from the court seeking a partition by sale of the property. (De Roulet v. Mitchel (1945) 70 Cal.App.2d 120, 122.) The court agreed and ordered a partition by sale of the property with a court-appointed referee to conduct the sale. However, Anthony refused to cooperate with the referee and would not vacate the property while Mike had already moved out. Mike filed an application for writ of possession which is a means of recovering possession from someone who is wrongfully occupying a property. (CCP § 715.010.)

The court granted the request and issued a writ of possession with an order for Anthony to vacate the property so the sale could be completed. The court had the authority to order the writ of possession pursuant to Code of Civil Procedure section 872.120 because it’s an order necessary to carry out the sale of the property and the court has broad statutory authority regarding partitions.

1976 Addition

Section 872.120 is new. Generally, its purpose is to give the broadest possible statutory authorization for powers that the court, to a large extent, apparently already had. The succeeding sections of this article elaborate on, but do not exhaust, the court's power in partition actions. While partition actions in California are a creature of statute (Capuccio v. Caire, 207 Cal. 200, 277 P. 475 (1929) ), they are nonetheless equitable in nature (Elbert, Ltd. v. Federated Income Properties, 120 Cal.App.2d 194, 261 P.2d 783 (1953) ), and the statutory provisions are to be liberally construed in aid of the court's jurisdiction. See Sections 4 and 187.

Section 872.120 is one of several statutes in California’s Partition Law lacking an official Assembly Comment under its wording. This is due, in part, to the Legislature’s overall adoption of the Law Revision Commission’s suggestions. The introduction to Assembly Bill 1671 (which ushered in this statute among others) states that the Commission’s recommendations “reflects the intent of the Assembly Committee… in approving the various provisions of Assembly Bill 1671.”

That said, the Legislative Digest accompanying the letter to Governor Edmund G. Brown, Jr. for approval of Bill 1671 invokes the language of section 872.120. Paragraph 2 reads: “The bill grants broad statutory power to the court to hear motions, make orders and decrees and issue temporary restraining orders and injunctions. The court apparently already has such authority; this bill simply codifies it.”

In practice, section 872.120 functions to the degree acknowledged by the Digest. At its core, the statute functions to codify the court’s seemingly endless arsenal of equitable powers when it comes to partition actions.

“Equity,” is the focus, and giving the court the flexibility to make whatever orders it needs to ensures that “neither party is permitted to secure an advantage to the prejudice of another.” (Elbert, Ltd., 120 Cal.App.2d at 206.) For instance, it is this very equitable principle that has mandated final accountings in all partition actions. “Since an action for partition is essentially equitable in its nature, a court of equity is required to take into account the improvements which another cotenant, at his own cost in good faith, placed on the property which enhanced its value.” (Wallace v. Daley (1990) 220 Cal.App.3d 1028, 1036.)

Equity also undergirds any court decision on whether to divide property in kind (physical division) or via sale. (Cummings v. Dessel (2017) 13 Cal.App.5th 589, 597.) In short, the reach of this statute cannot be understated.