Case Name: Alan Quang Phan v. Karen Vuu Phan, et al.

Case No.: 16CV303083

Plaintiff Alan Quang Phan’s Motion for Summary Adjudication for Partition by Sale Cause of Action

Factual and Procedural Background

Plaintiff Alan Quang Phan (“Alan”) , defendant Karen Vuu Phan (“Karen”), and defendant Christine Phan (“Christine”) are co-owners of real property located at 139 Ayer Lane in Milpitas (“Property”). (Complaint, ¶5.) Plaintiff Alan owns an undivided 50% interest as tenants in common in the Property. (Complaint, ¶7.) Defendants Karen and Christine are owners of an undivided 25% interest as tenants in common in the Property. (Complaint, ¶¶8 – 9.)

On November 23, 2016, plaintiff Alan filed a complaint against defendants Karen and Christine asserting causes of action for (1) partition by sale; and (2) accounting.

On December 21, 2016, defendants filed the motion now before the court, a motion for summary adjudication of the first cause of action for partition.

I. Plaintiff Alan’s motion for summary adjudication is DENIED.

A co-owner of real or personal property may bring an action for partition. (Code Civ. Proc., § 872.210.) “The primary purpose of a partition suit is, as the terminology implies, to partition the property, that is, to sever the unity of possession. [Citations.]” (Schwartz v. Shapiro (1964) 229 Cal.App.2d 238, 257, 40 Cal.Rptr. 189 (Schwartz).) “Partition is a remedy much favored by the law. The original purpose of partition was to permit cotenants to avoid the inconvenience and dissension arising from sharing joint possession of land. An additional reason to favor partition is the policy of facilitating transmission of title, thereby avoiding unreasonable restraints on the use and enjoyment of property.” (59A Am.Jur.2d (2003) Partition, § 6, p. 15, fns. omitted.)

In lieu of dividing the property among the parties, the court shall order the property be sold and the proceeds divided among the parties in accordance with their interests in the property if the parties agree to such relief or the court determines sale and division of the proceeds would be more equitable than a division of the property. (Code Civ. Proc., § 872.820.) …

A co-owner of property has an absolute right to partition unless barred by a valid waiver. (Code Civ. Proc., § 872.710, subd. (b).) “[T]he right of partition may be waived by contract, either express or implied.” (American Medical International, Inc. v. Feller (1976) 59 Cal.App.3d 1008, 1014, 131 Cal.Rptr. 270.)

(LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 493; emphasis added.)

Plaintiff Alan proffers evidence that he is the owner of an undivided 50% interest as tenants in common in the Property, which is co-owned concurrently with defendants. Defendant Karen and defendant Christine each own an undivided 25% interest as tenants in common in the Property, which is co-owned concurrently with plaintiff. As a co-owner of property, plaintiff Alan has an absolute right to partition unless barred by waiver.

Plaintiff Alan asserts he has not waived his right to partition. However, in opposition, defendant Christine proffers evidence of waiver by an express or implied contract. Defendant Christine submits a declaration stating she, Karen, and Alan are siblings. Christine and Alan purchased the Property in 1998 so that their parents would have a place to live out the rest of their lives. The Property would then also be a long term investment. This oral agreement was between Christine and Alan. Christine later gave 50% of her interest to Karen. The Property was to be sold only when both parents had passed. Plaintiff and defendants’ father is now deceased. Plaintiff and defendants’ mother is 83 years old and in poor health. Plaintiff, defendants, and their parents all resided at the Property. Plaintiff moved out of the Property in November 2015. The Property was intended to provide a place for plaintiff and defendants’ parents to live for the rest of their lives. There has been no change in the understanding and agreement that the Property will be sold after plaintiff and defendants’ mother has passed.

Defendants’ evidence presents a triable issue of material fact with regard to whether plaintiff Alan waived his right to partition the Property by agreeing not to sell the Property until both of his parents passed. Consequently, plaintiff Alan’s motion for summary adjudication of the first cause of action in plaintiff’s complaint is DENIED.