2018-00232685-CU-OR

Bonnie Peterson vs. David Estis

Nature of Proceeding: Motion for Interlocutory Default Judgment

Filed By: Falcone, James J.

Plaintiff Bonnie Peterson’s (“Plaintiff”) motion for interlocutory default judgment of partition is UNOPPOSED and is GRANTED.

Plaintiff filed her Complaint for Partition on May 8, 2018, against defendant David Estis seeking partition of the real property located at 3840 13th Avenue, Sacramento, California 95820. (ROA 1.) Plaintiff alleges she and Defendant each own 50% of the real property and hold title as tenants in common. Plaintiff alleges Defendant has been in sole possession of the property since January of 2015. Plaintiff alleges she has paid costs related to maintenance of the property and to prepare the property for sale. Plaintiff alleges Defendant has been uncooperative regarding the sale of the property and must be removed. Plaintiff alleges partition by sale is more equitable than division in kind because the property cannot be physically divided.

Default judgment was entered against Defendant on July 16, 2018. Plaintiff now seeks

an interlocutory judgment of partition pursuant to CCP §§ 872.820, 872.830, 873.500-873.850.

A co-owner of real or personal property may bring an action for partition. (CCP § 872.210.) A co-owner has an absolute right to partition unless barred by waiver. (Id. §

872.210(b).) CCP § 872.720 provides that “[i]f the court finds that the plaintiff is entitled to partition, it shall make an interlocutory judgment that determines the interests in the property and orders the partition of the property, and unless it is to be determined late, the manner of partition.” (CCP § 872.720(a).) In lieu of dividing the property, 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 if the Court determines sale and division of the proceeds would be more equitable than a division of the property. (CCP § 872.820.)

In the conduct of the partition 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 Code Civ. Proc. §§ 872.010-874.240 and to effectuating its decrees and orders. (CCP § 872.120.)

As Plaintiff has obtained a default judgment, the Court finds she is entitled to an interlocutory judgment directing that the subject property be sold and the proceeds divided in accordance with the parties’ respective interests. Accordingly, the motion is granted. To that end a referee shall be appointed to sell the property in accordance with CCP § 873.010.

The Court declines Plaintiff’s request for an order that the Clerk of the Court execute the Listing Agreement for and on behalf of David Estis and that all persons affected thereby may rely upon the signature of the clerk as though said Listing Agreement was executed by Defendant.

The Court also declines Plaintiff’s request for an order delineating specifically how the proceeds should be distributed between the parties to account for Plaintiff’s maintenance costs and attorneys’ fees. The specific distribution of the proceeds shall be determined by the referee.

Further, the Court declines Plaintiff’s additional requests regarding the appointment of Sam Allen as the listing agent and that Defendant vacate the premises.

Plaintiff shall submit an order and interlocutory judgment in accordance with the foregoing.