Case Name: Nehaya L. Alhuniti v. Salah M. Alhuniti
Case No.: 1-13-CV-255407

Plaintiff/cross-defendant Nehaya L. Alhuniti (“Plaintiff”) moves for judgment on the pleadings pursuant to Code of Civil Procedure sections 438 and 872.010.

This is an action for partition of real property and breach of contract. Plaintiff and defendant/cross-complainant Salah Alhuniti (“Defendant”) each own a one-half interest in a residential property located at 1034 Almarida Drive in San Jose (the “Property”) as tenants in common. (Complaint at ¶¶ 1, 2 and 4 and Exhibit 1.) Plaintiff seeks partition by sale of the Property and the appointment of a receiver for collection of rents paid by the tenants who are currently in possession of the Property. (Id. at ¶ 11.)

On October 13, 2013, Plaintiff filed the Complaint asserting claims for (1) Partition of Real Property and Accounting, (2) Breach of Contract, (3) Common Count- Money Lent and (4) Promissory Estoppel. On April 9, 2014, Plaintiff filed the instant motion for judgment on the pleadings pursuant to Code of Civil Procedure sections 438 and 872.010 requesting that the Court issue an interlocutory judgment providing that the Property be sold at a private sale.

Plaintiff’s motion for judgment on the pleadings is DENIED. In utilizing a motion for judgment on the pleadings as the mechanism to obtain an interlocutory judgment providing that the Property be sold, Plaintiff both misunderstands the nature of such a motion as well as the procedure for partition provided by Code of Civil Procedure section 872.010 et seq..

The grounds for a motion for judgment on the pleadings must appear on the face of the complaint or from facts which are judicially noticeable. (See Evans v, California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 549; Code Civ. Proc., § 438, subd. (d).) Consequently, the Court did not consider the declarations submitted by Plaintiff in support of her motion, which appear to be an improper attempt to introduce extrinsic evidence into consideration. Plaintiff otherwise identifies no basis for taking judicial notice of these materials or the contents contained therein, and none is apparent to the Court. (See Evid. Code, § 452.)

Further, an interlocutory partition decree is issued only after an evidentiary proceeding; a motion for judgment on the pleadings is not evidentiary in nature. As a general matter, there are two phases in a partition action. First, the court determines a party’s right to partition and determines the parties’ interests. “If the court finds that the plaintiff is entitled to partition, it makes an interlocutory judgment determining the interests of the parties and ordering partition.” (12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 75, p. 12, citing Code Civ. Proc. § 872.720, subd. (a).) Second, the court determines the manner of partition, either by physical division, sale, etc. (See Code Civ. Proc., § 872.810, et seq.) The right to partition and the parties’ interests are determined at an evidentiary proceeding, i.e., a trial or a motion for summary judgment or adjudication. (See Code Civ. Proc., § 872.710, subds. (a) [“[a]t trial, the court shall determine whether the plaintiff has the right to partition …]; Code Civ. Proc., § 872.610 [“[t]he interests of the parties, plaintiff as well as defendant, may be put in issue, tried, and determined in the action”]; see e.g., LEG Investments v. Boxler (2010) 183 Cal.App.4th 484 [granting summary adjudication on cause of action for partition of real property by sale pursuant to Code Civ. Proc. § 872.820].) As the motion currently before the Court is limited to the pleadings, the issuance of an interlocutory judgment ordering a sale of the Property is not proper at this juncture.