Harper vs. Wells

Partition is an equitable action that is governed by statute. (Code Ci v. Proc. § 872.010 et seq.) “ ‘ “[P]artition” is “the procedure for segregating and terminating common interests in the same parcel of property.” ’ [Citation.] It is a ‘ “ ‘remedy much favored by the law.’ ” ’ ” (Summers v. Superior Ct. (2018) 24 Cal.App.5th 138, 142.) “[P]artition, which is frequently denominated an absolute right [citation], is subject to waiver, and also to estoppel and similar equitable defenses.” (Thomas v. Witte (1963) 214 Cal.App.2d 322, 327.) The right of partition may be waived by contract, either express or implied

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

The elements of a claim for partition are: (i) legal and common description of subject property; (ii) all interests the plaintiff h as or claims in the property; (iii) all interests of record or actually known to the plaintiff in the property; (iv) the estate to which partition is sought; and (v) if plaintiff seeks sale of the property, facts justifying such relief in ordinary and concise language. (Code Civ. Proc., § 872.230.)

Pursuant to Code Civ. Proc. §872.210, subd. (a) “[a] partition action may be commenced and maintained by any of the following persons: (1) A co-owner of personal property; (2) An owner of an estate of inheritance ... in real property where such property or estate therein is owned by several persons concurrently or in successive estates.”

Pursuant to Code Civ. Proc. §872.510, “[t]he plaintiff shall join as defendants in the action all persons having or claiming interests of record or actually known to the plaintiff or reasonably apparent from an inspection of the property, in the estate as to which partition is sought.”

The Court has taken judicial notice of the fact that the record holder of title to the subject property is 4 Aspen Family, LLC.

Plaintiff alleges in the Complaint that the deed conveying an interest in subject property to 4 Aspen Family, LLC is void ab initio because the entity did not exist at the time of recordation.

Even if this allegation is credited, 4 Aspen Family, LLC is a “person[] having or claiming interests of record” in the subject property and must be joined in this action.

Moreover, the court has taken judicial notice of facts that directly contradict the allegations underlying Plaintiff’s conclusion that the deed conveying title in the subject property to 4 Aspen Family, LLC is void ab initio. Namely, the public records of the California Secretary of State indicate that 4 Aspen Family, LLC was organized on 6/6/23, which is 17 days before the deed conveying the Parties’ interest in the subject property to 4 Aspen Family LLC, was dated.

Thus, based upon judicially noticeable facts, Plaintiff is not a person who may commence and maintain a partition action of the subject property pursuant to Code Civ. Proc. §872.210, subd. (a).

Accordingly, Plaintiff cannot, as a matter of law, establish a right to partition and thus, the demurrer is SUSTAINED.

Defendant Erinn Wells’ Request for Judicial Notice

Defendant Erinn Wells’ Request for Judicial Notice is GRANTED as to Exhibit A. (Evid. Code §452, subds. (c) and (h); see also Friends of Shingle Springs Interchange, Inc. v. County of El Dorado (2011) 200 Cal.App.4th 1470, 1480 [taking judicial notice of corporate filings with Secretary of State].)

The request for judicial notice is DENIED as to Exhibits B and C to the extent Defendant requests that the court take notice of the truth of any assertions in the court filings that make up Exhibits B and C. Additionally, the Court will not take judicial notice of the KKC operating agreement for 4 Aspen Family, LLC.

Additionally, the Court takes judicial notice of the grant deeds involving the subject property, dated 6/23/23, attached as Exhibits to the Complaint. (Yuanova v. New Century Mortgage Corp (2016) 62 Cal.4th 919, 924, fn. 1 [approving taking judicial notice of recorded real property records].)

Plaintiff shall have 30 days to file a First Amended Complaint. The FAC should join the necessary parties (including any lien holders/mortgagees of the subject property). Even if Plaintiff cannot state a cause of action for partition, there is a possibility that Plaintiff could state a cause of action under a different theory, so Plaintiff shall be granted an opportunity to amend the Complaint. (See JPMorgan Chase Bank, N.A. v. Ward (2019) 33 Cal.App.5th 678, 684 [“If the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility amendment could cure the defect, a trial court abuses its discretion by denying leave to amend”].)

The Case Management Conference is CONTINUED to January 21, 2027, at 9:30 a.m. in Department C12. The OSC re: Dismissal (Failure to Serve) is DISCHARGED.

Defendant shall provide notice of this ruling.