PLAINTIFF’S MOTION FOR TEMPORARY ORDERS
ALDANA v RUBIO
PLAINTIFF’S MOTION FOR TEMPORARY ORDERS
This case involves a complaint to partition real property located at 4893 Kiva Court, Copperopolis, California (“Property”) brought by Jennifer Moon Aldana (“Aldana”) against Paul Rubio (“Rubio”).
Now before the Court is Plaintiffs’ motion for temporary orders.
I.
Background
Aldana is the sole borrower on an existing mortgage on the Property with Chase Bank. (Declaration of Jennifer Aldana (“Aldana Decl.”) ¶ 3.) On March 19, 2025, Rubio was added to the deed on the Property but is not a co-borrower on the loan. (Id. ¶¶ 3.) Aldana avers that she has invested approximately $200,000 of her own funds into the Property. (Ibid.) According to the Grant Deed for the Property, Aldana and Rubio are tenants in common each with an undivided one-half interest in the Property. (Id. ¶ 3, Ex. J.)
The Property has negative equity because the current fair market value is less than the outstanding loan amount. (Aldana Decl. ¶ 4.) Chase has advised Aldana that the 1⁄2 transfer to Rubio violated the terms of the Loan and as a result the Loan may be considered in default and due payable in full. (Id. ¶ 5.) Chase has stated that the solutions to this issue are: 1) payoff the loan balance in full, 2) transfer the title back to Aldana in full, or 3) sale of the property. (Ibid.)
Plaintiff filed her Complaint for Partition on March 6, 2026. Defendant answered on May 29, 2026.
II. Legal Standard and Discussion
A co-owner of real or personal property may bring an action for partition. (Code Civ. Proc. § 872.210.) “ ‘Partition is a remedy much favored by the law.’” (LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 493 [citation omitted].) Partition not only allows parties to avoid the inconvenience of sharing joint possession of land but also avoids “ ‘unreasonable restraints on the use and enjoyment of property.’ [citation]” (Ibid.)
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Civil Code §872.210 provides, in pertinent part:
If the court finds that the plaintiff is entitled 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 and, unless it is to be later determined, the manner of partition.
“A co-owner of property has an absolute right to partition unless barred by a valid waiver.” (LEG Investments, supra 183 Cal.App.4th at 493, citing Code Civ. Proc. § 872.710(b).) In the instant case, it is undisputed that the parties took title to the subject property as tenants in common when Aldana granted a one-half interest in the Property to Rubio. As such, either party has an absolute right to partition. Rubio has not filed any opposition to Aldana’s motion. However, Rubio has filed an Answer asserting multiple affirmative defenses, including waiver.
Rubio also filed a motion for an ex parte hearing asking for his own temporary orders but the ex parte application was denied and Rubio did not file any motion despite the Court’s noting that would be the proper procedure for any requested relief. If the court finds that the plaintiff is entitled to partition, then it must make an interlocutory judgment that determines the interests in the property and orders partition of the property.(LEG Investments, supra 183 Cal. App.4th at 498.) However, the statutory scheme for partition requires that the Court determine, either by trial or dispositive motion, that the plaintiff is entitled to partition.
The instant motion seeking temporary order for the removal of Rubio from the title does not support the granting of an interlocutory judgment.
The Court is cognizant of its authority in partition actions to “hear and determine all motions, reports, and accounts and may make any decrees and orders necessary or incidental to carrying out the purposes of this title and to effectuating its decrees and orders.” (Code Civ. Proc. § 872.120.) However, the removal of Rubio from title – even if in the interest of preserving the ownership of the Property from default – is not a purpose of the partition statute. Thus, the Court cannot conclude that it has the authority to enter the temporary orders requested by Plaintiff.
Additionally, because of the procedural context of this Motion, the Court has insufficient basis to reinterpret it as a Motion for Partition by Sale (absent agreement of the parties to treat it as such and order a sale with distribution of sales funds – other than payment of the priority lien held by the mortgage company – left to either agreement between the parties or further motion(s)).
However, the Court is aware of the need for swift action to protect what equity may be salvageable in the Property. Accordingly, the parties are encouraged to confer to determine if they can reach an agreement/stipulation to proceed with an interlocutory judgment on the papers presented, agree to a temporary resolution which would transfer ownership back to Albana for the sole purpose of curing the default on the Loan. Absent any such agreement between the parties on a temporary solution, or agreement to stipulate to an interlocutory judgment on the papers presented, or agreement to a partition by sale with disbursement of the sale proceeds either agreed upon or subject to future motion, the Motion for Temporary Orders is DENIED.
The clerk shall provide notice of this ruling to the parties forthwith. Plaintiff to submit a formal Order complying with Rule 3.1312 in conformity with this Ruling.