2015-00174009-CU-MC

Valeriy Popov vs. Liliya Perehon

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Carson, Trevor E.

Cross-Complainant Yevgeniy Peregon’s unopposed motion for an order granting summary judgment for an interlocutory judgment for partition is granted.

Cross-Complaint filed a cross-complaint seeking partition of real property located at 3505 Lindenwood Way in Sacramento. Title to the property is held in the name of Cross-Complainant and Cross-Defendant as joint tenants.

Cross-Complainant argues that he is entitled to an interlocutory judgment pursuant to CCP § 872.720 because he is a joint owner with Cross-Defendant, with an absolute right to partition of the subject property.

Cross-Complainant’s separate statement includes the following. Cross-Complainant is the owner of an undivided one-half interest in the subject real property. Cross-complainant and Cross-defendant acquired title to the subject property as part of a purchase transaction funded, in part, by a note and deed of trust dated March 12, 2007. Cross-complainant and Cross-defendant are joint debtors on the deed of trust. Title to the property is held as “Valeriy M. Popov, an unmarried man and Yevegeniy Peregon, an unmarried man, as Joint Tenants.” Cross-complainant has completed improvements and repairs on the subject property that were not intended to be gifts to Cross-defendant. The subject property has improvements including a single family residence.

The property is exclusively occupied by Cross-defendant. Cross-complaint desires to sell the property but Cross-Defendant has refused. Cross-complainant has attempted

to sell his interest in the property to Cross-defendant but the parties could not reach a resolution. Cross-defendant was not able to obtain financing for the original purchase of the property and cannot afford to make mortgage payments. Cross-complainant has made several mortgage payments that Cross-defendant failed to refused to pay. There is no written or oral agreement between the parties concerning or relating to the property.

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.) An interlocutory judgment for partition is appropriately granted pursuant to a motion for summary judgment. (E.g., LEG Investments v. Boxler (2010) 183 Cal.App.4th 484.)

Here, the evidence is sufficient to demonstrate that Cross-complaint is entitled to partition and an interlocutory judgment and is sufficient to shift to Cross-Defendant the burden of demonstrating the existence of a triable issue of material fact regarding the right to partition. Having failed to oppose the motion Cross-Defendant cannot meet his burden.

The motion is granted. Cross-Complainant is entitled to an interlocutory judgment directing that the subject properties be sold and the proceeds divided in accordance with the parties’ respective interests. To that end a referee shall be appointed to sell the properties in accordance with CCP § 873.010.

Cross-Complainant shall submit a formal order and interlocutory judgment pursuant to CCP § 437c and CRC 3.1312. The proposed order does not include a specific referee to be appointed.