1

Filed 6/ 27 /18 (unmodified opn. attached) CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

RICARDO IAN SUMMERS et al.,
Petitioners,

v.
THE SUPERIOR COURT OF SAN FRANCISCO COUNTY, Respondent;
WAN FEN TAN,

Real Party in Interest. A1 5 1128

(San Francisco Super. Ct. No. C GC

- 16

- 550626 )

ORDER MODIFYING OPINION

[NO CHANGE IN JUDGMENT]

BY THE COURT:

It is ordered that the opinion filed her e in on June 1, 2018, be modified as follows:
On page 6, the two sentences in the section titled Disposition shall be deleted and
replaced with the following :

Let a pe r emptory writ of mandate issue directing respondent superior court

in Tan v. Summers et al . (Super. Ct. San Franc isco County, No. CGC

- 16

- 550626) to vacate its order of January 24, 2017, and to enter a new and
different order consistent with this opinion. Summers and Gomez are

awarded their costs.

There is no change in judgment.2

Dated:

_________________________ Humes, P.J.

Summers et al

. v. Superior Court A15112 81

Filed 6/1/18 (unmodified version) CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

RICARDO IAN SUMMERS et al.,
Petitioners,

v.
THE SUPERIOR COURT OF SAN FRANCISCO COUNTY, Respondent;
WAN FEN TAN,

Real Par ty in Interest

. A1 5 1128

(San Francisco Super. Ct. No. C GC

- 16

- 550626 )

Ricardo Summers and Alejandro Gomez own investment real estate with Wan Fen
Tan, but the parties disagree on the amount of their respective ownership interests. T he
trial court ordered the property to be partitioned and sold , with the parties’ ownership

interests to be determined at a later date. Summers and Gomez appealed. Although we
question whether the order was appealable, we construe the appeal as a petiti on for a writ
of mandate. On the merits, w e hold that the partition statutes do not allow a court to

order the manner of a property’s partition , such as the sale here, before it determines the
ownership interests in the property. Accordingly, we reverse the trial court’s order

. I. F ACTUAL AND P ROCEDURAL B ACKGROUND
Our understanding of the background of this case is limited due to the slim
appellate record. We k now, however, that in early 2016 Tan sued Summers and Gomez

to resolve a dispute about a piece of investment real estate they jointly own in San

Francisco. The dispute centered around the amount of each part y’s ownership interest in2

the property and corresponding right to receive income from, and obligation to pay
expenses for, the property. Alth ough our record does not include a copy , the complaint
apparently included claims for quiet title, partition

, and an accounting. Summers and

Gomez answe red and filed a cross

- complaint, which apparently included claims for quiet
title, partition, and breac h of contract

. In September 2016, Tan filed a motion for summary adjudication, requesting “the
property be parti tioned and sold by private sale” with the sale proceeds to be held in

escrow until resolution of the litigation disputes. As part of h er mot ion, Tan pointed out

that Summers and Gomez also sought a partition of the property. Summers and G ome z opposed the motion

. T hey recogniz ed that all of the parties wanted a partition and sale

, but they claimed “the timing of the partition by sale is not r ight since the parties have not
resolved the respective percentage of ownership and respective liabilities for the

property

. ” According to them, selling the property before establishing the parties’
ownership interests would amount to “a huge waste” becau se the sold property w ould not

generate rental income while the parties’ ownership interests were litigated

. A hearing was held in early January 2017, and shortly thereafter the trial court granted Tan’s motion

. In its ruling , the court stated, “Judgmen t is entered for the real
property [at issue] to be partitioned and sold by private sale, for all liens to be paid, a
referee shall be appointed, and all sale proceeds shall be held in escrow until final resolution of this matter.” Summers and Gomez appea led.

II.

D ISCUSSION

T he trial court’s ruling was interlocutory in the sense that it le ft issues for future

determination. ( See, e.g., Vivid Video, Inc. v. Playboy Entertainment Group, Inc. (2007)

147 Cal.App.4th 434, 44 1 .) We therefore begin by consider ing our ability to review the
ruling since interlocutory orders are generally not appealable unless they are expressly

authorized as such in Code of Civil Procedure 1 section 904.1 . Subdivision (a )(9) of that

1 All future statutory references are to the Code of Civil Procedure.3

statute authorizes appeals to be taken “[f]rom an interlocutory judgment in an action for
partition determining the rights and interests of the respective parties and directing partition to be made.” ( § 904.1, subd. (a)(9); see also § 872.720, sub. (a) [“[i]f the court
finds that the plaintiff is enti tled to partition, it shall make an interlocutory judgment that
determines the interests of the parties in the property and orders the partition of the property”].) Th e trial court’s ruling here, however, pointedly did not determine the rights

and interes ts of the parties and instead ordered the property sold pending a future
determination of those rights and interests. Given th e ruling ’s failure to determine the parties’ ownership interests , we question whether the ruling is an appealable interlocutory
j udgment within the meaning of section 904.1, subdivision (a)(9)

. 2 (See Degnan v.

Morrow (1969) 2 Cal.App.3d 358, 364 [only portions of multi

- faceted interlocutory order
that determined rights and interests of parties and ordered partition were appealable] .)

W e n eed not decide whether the ruling is an appealable interlocutory judgment

, however, because we exercise our discretion to treat the appeal as a petition for a writ of

mandate. T reating a purported appeal as a petition for writ of mandate is appropr iate
when, as here, there is uncertainty about an order’s appealability. ( Drum v. Superior

Court (2006) 139 Cal.App.4th 845, 853 .) It is also appropriate when the issue to be

decided is a pure question of law. ( Black Diamond Asphalt, Inc. v. Superior Co urt (2003) 114 Cal.App.4th 109, 114

- 115 .) The issue we are asked to decide here

— whether

a court can order the sale of property in a partition action before determining the interests
of the putative property owners

— is such a question.
Thus, we turn to cons ider the merits of Tan’s challenge. Since the issue is a
question of law

, w e apply a de novo standard of review in doing so . (See, e.g., Alberda v.

2 S ection 872.720 , subdivision (a), specifies that the trial court

, on finding that the plaintiff is entitled to partition, shall render an “interlocutory judgment that determines the interests of the parties in the property and orders the partition of the property

. ” It also directs that such a judgment is to specify the “manner of partition ,” unless “it is to be determined later.” ( Ibid .) Thus, it appear s that, at a minimum, a viable interlocutory partition judgment must include both a determination of the parties’ interests and order partition. But while it may, it need not, include the manner of partition.4

Board of Retirement of Fresno County Employees ’ Retirement Assn. (2013)

214 Cal.App.4th 426, 433

- 434.) 3

“ ‘[P] artition ’ is ‘ the procedure for segregating and terminating common interests
in the same parcel of property

. ’ ” ( 14859 Moorpark Homeowner ’ s Assn

. v. VRT Corp.
( 1998) 63 Cal.App.4th 1396, 1404

- 1405 .) It is a “ ‘ “ remedy much favored by the law.

The o riginal 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 unr easonable restraints on the use and enjoyment of property.” ’ ” ( Cummings, supra , 13 Cal.App.5th

at p. 596.)

The governing statute is s ection 872.720 . Sub division (a) declares that “[i]f the
court finds that the plaintiff is entitled to partition, it sh all make an interlocutory
judgment that determines the interests of the parties in the property and orders the
partition of the property .” ( § 872.720, subd. (a) .) The order of partition “shall order that
the property be divided among the parties in accor dance with their interests as determined in the interlocutory judgment.” ( § 872.810.) Section 872.720, subdivision (b)

, allows the

court to issue sequential interlocutory judgments for original concurrent and successive

owners if the court determines tha t it “is impracticable or highly inconvenient to make a
single interlocutory judgment that determines, in the first instance, the interest of all the parties in the property.” ( § 872.720, subd. (b).)

When the trial court “ determines the interests of the p arties in the property and orders the partition of the property,” it shall de cide the manner of partition “unless [this] is to be later determined.” ( § 872.720, subd. (a).) “T he manner of partition may be ‘in

kind’

— i.e., physical division of the property [citation] according to the parties ’ interests
as determined in the interlocutory judgment. [Citations.] Alternatively, if the parties

3 The standard would have been essentially the same if we had decided that the trial court’s ruling was an appealable interlocutory judgment. “ The standard of review for an interlocutory judgment of partition is abuse of discretion. ” ( Cummings v. Dessel (2017) 13 Cal.App.5th 589, 597 ( Cummings ) .) “ Under that standard,

. . . [a] ‘ disposition that rests on an error of law constitutes an abuse of discretion. ’ ” ( Ibid .)5

agree or the court concludes it ‘would be more equitable,’ the court may order the
property sold and the proceeds divi ded among the parties.” ( Cummings , supra , 13 Cal.App.5th at p

. 597 ; § 8 7 2.820.)
Two points are made clear by these provisions. First, an interlocutory judgment in
a partition action is to include two elements: a determination of the parties’ interests i n the property and an order granting the partition. ( § 872.720, subd

. ( a) .) Second, the
manner of partition

— i.e., a physical division or sale of the property

— is to be decided when or after the parties’ ownership interests are determined, but not before. ( Ibid .)

Th e trial court ’s ruling here failed to satisfy these elements because it ordered the
property to be sold before the parties’ interests were resolved

. The court cited, and on appeal Tan has provided, no authority to support such an approach. T he little case
authority on the subject is consistent with the statut e’s plain requirement that the parties’
ownership interests be determined before or when the manner of partition is decided.
(See Emeric v. Alvarado (1884) 64 Cal. 529 , 609

- 612 [ under pred ecessor statutes to
§ 872.720, trial court s must determine parties’ interests before ordering partition].)

Tan claims that Summers and Gomez forfeited the ir argument because the issue “was never properly presented to the Trial Court.” She is mistak en. As we have
mentioned, i n their response to Tan’s motion for summary adjudication

, S ummers and Gomez argued that “the timing of the partition sale is not right since the parties have not
resolved the respective percentage of ownersh ip” in the property. This was sufficient to
preserve the argument. Alternatively, Tan argues that the trial court did determine the parties’ ownership interests because it concluded “that the parties are the owner of the
property and that none [of the parties] disputed that owners hip.” But the issue is not
whether the parties collectively own the property , which has never been disputed

. Instead, the issues are the part ie s ’ respective ownership interest s and the court ’s authority

to order the manner of partition before determining those interests

. We conclude that the trial court lacked the authority to order the sale of the property before it determined the parties’ respective ownership interests. This holding,
however, does not prevent the court on remand from finding, after it determin es the6

parties’ ownership interests, that “ under the circumstances, sale and division of the
proceeds would be more equitable tha n division of the property.” (§ 872.820, subd. (b ).)

III.

D ISPOSITION

The trial court’s January 2017 order is revers ed. Summers and Gomez are

awarded their costs.7 _________________________ Humes, P.J.

We concur:

_________________________ Margulies, J.

_________________________ Banke, J.

Summers et al

. v. Superior Court A1511288

Tria l Court:

San Francisco County Superior Court

Trial Judge:

Hon. Ronald Evans Quidachay

Counsel for Petitioner s :

Arthur J. Liu, Inter

- Pacific Law Group Inc.

Counsel for Real Party in Interest :

Daniel A. Conrad, Law Offices of Daniel A. Conrad

Elisabe th Hanowsky, Law Offices of Daniel A. Conrad

Summers et al

. v. Superior Court A15112 8