Code of Civil Procedure (CCP) Section 873.290 – Confirming, Modifying, or Setting Aside the Report and Entry of Judgment

Code of Civil Procedure 873.290 allows any party to motion for the court to confirm, modify, or set aside the report, and the court may enter judgment accordingly. This statute is important because it allows the parties to have a say in the referee’s report.

Code of Civil Procedure section 873.290 states:

(a) Any party, upon notice to the other parties who have appeared, may move the court to confirm, modify, or set aside the report.

(b) At the hearing, the court may either confirm the report as filed or as the court may modify and enter judgment of partition accordingly or set aside the report and order preparation of a new report and, if necessary, appoint a new referee for this purpose.

(c) The division is effective and title vests in accordance therewith upon entry of judgment of partition.

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

“Shawn” and “Julie” are an unmarried couple who want to buy a home together. They find a nice home in Los Angeles and buy it as joint tenants with a one-half interest each. They then move in together.

Unfortunately, Shawn and Julie’s relationship doesn’t work out, and they break up. They cannot agree on what to do with the property. Shawn wants to sell the property and move on with his life, so he sues for partition by sale.

Eventually, the court appoints a referee to investigate and make a recommendation on how to partition the property. After investigation, the referee recommends a partition by sale and puts this in his report that he files to the court.

Julie does not want a partition by sale, so she motions to set aside the referee’s report. Shawn motions to confirm the referee’s report. The court initiates a hearing about the referee’s report, and subsequently enters a judgment of partition in accordance with the report, pursuant to CCP § 873.290.

1976 Addition

Subdivision (a) of Section 873.290 continues the substance of the last sentence of former Section 765. See Sections 1005 (time for service of notice) and 1010 (notice must be in writing).

Subdivision (b) supersedes the first sentence of former Section 766.

Subdivision (c) supersedes the second sentence of former Section 766. It makes clear that it is the judgment that gives effect to the referee's report. For persons affected by the judgment, see Chapter 9 (commencing with Section 874.210).

As is the case with most of the partition statutes, section 873.290 does not include a an “official” Assembly Committee Comment from the California Legislature. But this is not unusual. 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 substantially in line with that of the Revision Commission.

As to the Revision Comment here, it makes reference to now superseded section 765, which stated in relevant part:

“The referees must make a report of their proceedings, specifying therein the manner in which they executed their trust, and describing the property divided, and the shares allotted to each party, with a particular description of each share. Any party to the action, after giving at least ten days' notice in writing to the other parties who have appeared therein of his intention to do so, may move the court to confirm, change, modify, or set aside such report.”

Commenting on section 765, the Commission wrote:

“The first sentence of former Section 765 is continued in Section 873.280. The second sentence is continued in Section 873.290 (a).”

As to how this statute plays out in practice, its provisions are already quite clear. Once the report is finalized and on file, parties can seek to confirm it, and proceed to issuance of judgment, modify it, or seek to set it aside.

That said, there’s a unique procedural wrinkle that’s worthy of discussion related to Section 873.280: voluntary dismissal. Namely, is it permissible for the plaintiff to voluntarily dismiss the partition suit after the referee has made their report, if the case never actually went to a trial? This is an interesting question, especially considering that most interlocutory judgments ordering the referee to partition the property come before the parties proceed to trial.

As case law makes clear, the answer is no. In an appellate case out of the First District in 1997, the plaintiff sought a partition by sale, but the defendant answered that they wanted a partition by division. (Gray v. Superior Court (1997) 52 Cal.App.4th 165.) After some squabbling in the initial pleadings stages, the parties agreed to let a referee decide whether sale or division would be proper.

The referee conducted a hearing, received evidence, and eventually recommended to the court that partition by division would be more beneficial than a partition by sale. Upset that their chosen method of partition had not been recommended, the plaintiffs attempted to dismiss their case without prejudice. After all, the case had not gone to trial.

The lower court vacated the dismissal, and the plaintiffs appealed. There, the Court of Appeal held that vacation of the dismissal was proper, stating “a dismissal denigrates the partition statutes, which provide that a party dissatisfied with a referee’s report may move that it be modified or set aside, and that the court may order a new report or appoint a new referee. A dismissal circumvents this statutory scheme.” (Id. at 173.)

As such, parties should take care to note that once the referee issues the report, dismissal is probably not a viable option.