Joel V. Benson v. Lisa Benson et al

Plaintiff shall provide an amended proposed order consistent with this ruling.

The matter is set for a Status Conference Re: Appraiser on September 11, 2026, at 8:30 a.m. in Dept. A. The parties are ordered to meet and confer on candidates in a good faith effort to agree on an appraiser. Upon any agreement, the parties may submit a stipulation and proposed

order, in which case the Status Conference will be vacated. Absent an agreement, the parties shall file, no later than September 2, 2026, a joint statement reporting their meet and confer efforts and nominations for an appraiser with sufficient details including estimated costs of appraisal.

The Case Management Conference is continued to October 21, 2026, 8:30 am in Department A.

A. PROCEDURAL MATTERS

Plaintiff Joel V. Benson (“Plaintiff”) moves, pursuant to Code of Civil Procedure section 874.316 subdivisions (a), (b), and (d),2 for an order appointing a disinterested real estate appraiser licensed in the State of California to determine the fair market value of the real property commonly known as 18 Horizon Court, American Canyon, California, 94503, APN 059-386-003-000 (“Property”). Plaintiff so moves on the grounds that this partition action is governed by the Partition of Real Property Act (Chapter 10 of Title 10.5, §§ 874.311 et seq.) (“Act”) and, because the cotenants have not agreed on the fair market value of the Property or on any method of valuation, the Court is required to appoint a disinterested California-licensed real estate appraiser to determine the Property’s fair market value. (Notice of Motion, 1:11-16.)

B. FACTUAL ALLEGATIONS

On July 29, 2025, Plaintiff filed his Complaint for Partition by Sale. (Compl., filed 7/29/25.) The Complaint alleges that Plaintiff and his mother, Defendant Lisa Benson (“Ms. Benson”) are cotenants of the Property, each holding a 50% undivided interest; that the Property is a single-family residence on less than a quarter-acre lot which is not conducive to division in kind; and that partition by sale is the more equitable remedy. (Compl., ¶¶ 1-24.) Ms. Benson answered the Complaint on or about November 7, 2025. (Answer, filed 11/7/25.)

On April 22, 2026, Plaintiff’s counsel emailed Ms. Benson’s counsel, seeking a stipulation to partition by appraisal under section 873.910-873.980.3 (Declaration of Anthony M. Bettencourt (“Bettencourt Decl.”), ¶ 8, Exh. A.) Ms. Benson did not agree to so stipulate, nor did Ms. Benson propose any other method. (Id., ¶ 9.) The parties have reached no agreement on either the fair market value of the Property or on any method of valuation that would satisfy section 874.316, subdivision (b). (Ibid.)

Plaintiff’s counsel has since reconfirmed two disinterested, California-licensed real estate appraisers who remain willing and able to perform a full interior and exterior appraisal of the Property and to file a sworn or verified appraisal with the Court within 60 days of any order of appointment. (Id., ¶ 10.)

2 All subsequent statutory references are to the Code of Civil Procedure unless otherwise specified. 3 Sections 873.910-873.980 (Chapter 7 of Title 10.5) allow for the parties to agree upon a partition by appraisal “[w]hen the interests of all parties are undisputed or have been adjudicated.” (§ 873.910.) While the Court understands why Plaintiff’s counsel solicited Ms. Benson’s stipulation pursuant to this Chapter, the Court notes that its provisions are different and separate from the Act, upon which the Motion is based.

C. LEGAL STANDARD

The Act “applies to actions for partition of real property filed on or after January 1, 2023” for “real property held in tenancy in common where there is no agreement in a record binding all the cotenants which governs the partition of the property.” (§ 874.311, subds. (b)-(c).) “In an action to partition real property, the property shall be partitioned under this chapter unless all of the cotenants otherwise agree in a record.” (§ 874.313, subd. (a).) “This chapter supplements the other provisions of this title [(§§ 872.010 et seq.)] and, if an action is governed by this chapter, this chapter shall control over any provisions of this title that are inconsistent with this chapter.” (Id., subd. (b).)

“Except as otherwise provided in subdivisions (b) and (c), the court shall determine the fair market value of the property by ordering an appraisal pursuant to subdivision (d).” (§ 874.316, subd. (a).) “If the court orders an appraisal, the court shall appoint a disinterested real estate appraiser licensed in the State of California to determine the fair market value of the property assuming sole ownership of the fee simple estate. On completion of the appraisal, the appraiser shall file a sworn or verified appraisal with the court.” (Id., subd. (d).)

There are two exceptions removing a partition action from section 874.316, subdivision (a)’s appraisal requirement: “If all cotenants have agreed to the value of the property or to another method of valuation, the court shall adopt that value or the value produced by the agreed method of valuation” and “If the court determines that the evidentiary value of an appraisal is outweighed by the cost of the appraisal, the court, after an evidentiary hearing, shall determine the fair market value of the property and send notice to the parties of the value.” (Id., subds. (b)-(c).)

The Act was adopted in 2021 (then known as the “Uniform Partition of Heirs Property Act”) and was renamed and expanded in scope in 2022. (See Stats. 2021, c. 119 (A.B. 633) § 2, eff. Jan. 1, 2022, amended by Stats. 2022, c. 82 (A.B. 2245), § 7, eff. Jan. 1, 2023). In this context, the parties’ citations solely to cases predating the Act’s implementation is not particularly helpful to the analysis of the motion. That said, the Court, in its independent research, has located no cases which cite to section 874.316—the basis for Plaintiff’s Motion. Moreover, the Court has located no published case which cites to the Act at all (§§ 874.311- 874.323), and the few unpublished cases the Court located all found, with minimal discussion, that the Act is inapplicable because the action was filed prior to 2023.

D. DISCUSSION

1. Plaintiff’s Request for an Appraisal Order

Plaintiff argues that the Act applies because, under section 874.311, subdivisions (b)-(c), this action is one for the partition of real property filed after January 1, 2023, and the real property is held in tenancy in common without an agreement governing the partition of the property. Plaintiff further shows that the two statutory exceptions to the appraisal requirement under section 874.316, subdivision (a) are not satisfied here. Thus, Plaintiff argues that the

mandatory directive of section 874.316, subdivision (a) controls and the Court must order an appraisal in the manner provided under subdivision (d).

Ms. Benson disputes the Motion on the ground that it is premature based on a muddled sequence which the Court has attempted to untangle and articulate as follows: (1) The Court must first determine whether the Property is subject to the Act (see Opp., 1:23-25, 2:13-18), (2) which determination depends upon a determination as to the “actual beneficial interests” the parties hold (see id., 1:25-28, 2:19-3:1), and (3) the determination of the “actual beneficial interests” requires the defenses asserted in Ms. Benson’s Answer—specifically, Ms. Benson’s allegation that Plaintiff committed waste by failing to maintain the Property—to be tried (see id., 1:26-27, 2:1-4, 3:2-6). In essence, Ms. Benson’s argument is that the Property cannot be appraised until the merits of the partition action are tried.

Ms. Benson’s arguments in opposition fail for the following reasons.

As a starting point, Ms. Benson relies upon and, in fact, quotes language purportedly from section 874.316, subdivision (a) which does not appear in that statute. (See Opp., 1:23-25, 2:13-16.) This is not well taken.

Nevertheless, in turning to the Act’s applicability to the present action, Ms. Benson does not address, and therefore does not dispute, Plaintiff’s showing under the express provisions in sections 874.311, subdivisions (b)-(c) or 874.313. Furthermore, Ms. Benson does not dispute Plaintiff’s contention that neither statutory exception under section 874.316, subdivisions (b) and (c) applies here, and that, therefore, section 874.316, subdivision (a) mandates the Court to order an appraisal.

Moreover, Ms. Benson provides no authority supporting her second contention that the Act’s applicability depends upon any determination as to the “actual beneficial interests” between the parties. Ms. Benson relies upon section 872.610 which merely provides that “[t]he interests of the parties, plaintiff as well as defendant, may be put in issue, tried, and determined in the action.” (§ 872.610.) However, that section does not support that the Act somehow becomes inapplicable based on the determination of interests. Nor does that section provide that the trial and determination of the parties’ interests must occur prior to the appraisal required under section 874.316.

Furthermore, as Plaintiff provides in Reply, section 874.316, subdivision (g) undermines Ms. Benson’s proffered sequence by expressly stating that “before considering the merits of the partition action, the court shall determine the fair market value of the property and send notice to the parties of the value.” Additionally, the provisions of the Act (i.e., section 874.316) expressly “control over any provisions of this title [(i.e., section 872.610)] that are inconsistent with this chapter.” (Id., subd. (b).) Thus, even assuming arguendo section 872.610’s allowance for a trial and determination of the parties’ interests can be interpreted in such a way to prevent or hinder the appraisal mandate under section 874.316, section 874.316 controls.

Even further, as Plaintiff notes in Reply, Ms. Benson’s contention that there is a dispute as to the “actual beneficial interests” appears more relevant to the question of apportionment

under section 872.140, which is not affected by, or at issue under, the appraisal under the Act. (See Reply, 1:23-2:2.) The Court has a difficult time understanding Ms. Benson’s apparent argument that an appraisal under “as-is” conditions and under an assumption of “sole ownership of the fee simple estate,” as Plaintiff proposes, would be improperly “scoped” because it would fail to “develop a record on the pleaded waste and condition issues.” (Opp., 3:7-21.) Rather, section 874.316, subdivision (d) expressly directs the appraiser to determine the fair market value of the Property “assuming sole ownership of the fee simple estate.”

A failure to develop a record on Ms. Benson’s defenses does not strike the Court as a duty of an appraiser. An appraisal determines the fair market value of the property, which value is the same whether Plaintiff’s interest is ultimately fixed at 50%, more, or less.

Finally, as Plaintiff raises in Reply, Ms. Benson’s position that the appraisal should be delayed is contrary to the apparent purpose of the Act to move co-ownership disputes efficiently toward resolution. (See, e.g., §§ 874.316-874.319 [providing process for party-led partition and sale]; see also Miller and Starr, 4 Cal. Real Estate, § 11:21 (4th ed. June 2026) [“[T]he primary effect of the Act is to provide a detailed mechanism for partition in kind by sale of interests in the property, with specific sale procedures, appraisal requirements, opportunities for parties to buy out the interest of those cotenants who wish to sell rather than be forced into a sale of the property, and, where it is determined that a sale of the property should occur, to allow an open market sale of the property through a real estate broker rather than a forced judicial sale or auction with sealed bids.”].)

Thus, the Court rejects Ms. Benson’s request to deny the motion as premature.

In the alternative, Ms. Benson requests that the proposed order be modified to require: (1) a full interior and exterior inspection; (2) identification and quantification of any deferred maintenance or condition impairment, with photographic documentation; (3) both “as-is” and “as-repaired” fair market-value opinions; (4) attendance by both parties’ counsel at the inspection; and (5) a meet-and-confer process on appraiser selection whereby the parties are directed to confer on at least three candidates within 30 days. (Opp., 3:16-21; 5:9-12.)

Plaintiff objects only to the second and third modifications proposed by Ms. Benson. In fact, Plaintiff’s proposed order already includes the first proposal by Ms. Benson that the appraisal require a full interior and exterior inspection. (See 6/2/26 Proposed Order, p. 3, ¶ 4.)

Plaintiff objects to an order compelling an “as-repaired” value, which he contends is exactly what a waste inventory/accounting would require. (Reply, 6:10-12.) In light of the above analysis regarding Ms. Benson’s apparent conflation of the appraisal procedure with the apportionment/accounting procedure, the Court agrees with Plaintiff. The mandate under section 874.316 is for an appraisal to be performed “assuming full ownership of a fee simple interest (i.e., without taking into account fractional interest discounts).” (Ross, et al., Cal. Prac. Guide: Probate (The Rutter Group July 2026), Ch. 14-D, § 14:250.4.) Ms. Benson is free to develop her waste claim through discovery and to present it when appropriate (i.e., when apportionment is at issue).

As to Ms. Benson’s second modification, Plaintiff states he “does not object to the appraiser’s noting the property’s condition as observed at that inspection in the ordinary course of preparing the appraisal.” (Reply, 6:8-9.) While phrased as a non-objection, the terms to which Plaintiff agrees are slightly different than the modification requested by Ms. Benson, in that Plaintiff does not appear to agree to a requirement that the appraiser do anything outside the ordinary course and scope of preparing an appraisal. The Court agrees with Plaintiff, as the modification proposed by Ms. Benson appears more relevant to the parties’ discovery efforts, than a duty of an appraiser.

With respect to the fifth modification proposed by Ms. Benson, the Court acknowledges that Plaintiff’s former efforts to meet and confer with Ms. Benson’s counsel on an appraiser prior to filing the motion were met with silence. (Bettencourt Decl., ¶¶ 8-9.) However, the Court finds Ms. Benson’s present request to meet and confer on an appraiser reasonable. Moreover, the Court notes that Plaintiff does not object to it. (See Reply, 6:23-25.)

Based on the foregoing, the Motion is GRANTED as modified by the above-identified fourth and fifth points requested by Ms. Benson. Specifically, attendance by both parties’ counsel at the inspection by the appraisal is required. Additionally, the parties are ordered to meet and confer on candidates in a good faith effort to agree on an appraiser. The matter is set for a Status Conference Re: Appraiser on September 11, 2026, at 8:30 a.m. in Dept. A. Upon any agreement, the parties may submit a stipulation and proposed order, in which case the Status Conference will be vacated. Absent an agreement, the parties shall file, no later than September 2, 2026, a joint statement reporting their meet and confer efforts and nominations for an appraiser with sufficient details including estimated cost of appraisal.

2. Plaintiff’s Request to Recognize Attorneys’ Fees Incurred Herein as Costs of Partition

Plaintiff requests that “the Court (1) recognize the reasonable attorney’s fees and costs Plaintiff has incurred in bringing this Motion as costs of partition under section 874.010, subdivision (a); (2) defer final apportionment until judgment when the record will reflect the cotenants’ respective conduct throughout the action; and (3) preserve Plaintiff’s right to seek an equitable apportionment different from the default pro rata allocation under section 874.040 if Ms. Benson’s refusal to participate in the statutory appraisal process continues.” (Mem., 8:10- 16.)

Ms. Benson opposes this request, arguing that, where, as here, one cotenant’s litigation expenses are incurred in pressing a position that the other cotenant disputes, those expenses are individual litigation costs, not common-benefit costs, and they are properly borne by the cotenant who chose to litigate. (Opp., 2:5-9, 4:5-8.)

Section 874.010 lists categories included within the “costs of partition,” and includes “[r]easonable attorney’s fees incurred or paid by a party for the common benefit.” (§ 874.010, subd. (a).)

Given the mandatory nature of the appraisal set forth in section 874.316, subd. (a), the Court finds Plaintiff’s reasonable costs and fees incurred in bringing this Motion are costs of partition under section 874.010, subdivision (a). The Court defers final determination of said fees and costs until the apportionment phase. For this reason, Plaintiff’s request regarding costs of partition is GRANTED.

CIVIL LAW & MOTION CALENDAR – Hon. Joseph J. Solga, Dept. B (Historic Courthouse) at 8:30 a.m.

Charleen Wignall – Ewing v. Uegene Armstead et al 23CV000124

[1] OSC re: COURT’S MOTION TO DISMISS

TENTATIVE RULING: The Court orders the action against Gene Armstead DISMISSED WITHOUT PREJUDICE for lack of prosecution. Respondent Gene Armstead is directed to lodge, with the Court, a [Proposed] Order After Hearing consistent with the instant ruling. The Court sets the matter for a Status of Dismissal hearing on September 4, 2026, at 8:30 a.m. in Dept. B.

“The court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion . . . if to do so appears to the court appropriate under the circumstances of the case.” (Code Civ. Proc., § 583.410, subd. (a).) The Court may dismiss an action where “[s]ervice is not made within two years after the action is commenced against the defendant” and/or [t]he action is not brought to trial within . . . [t]hree years after the action is commenced against the defendant . . ..” (Code Civ. Proc., § 583.420, subds. (a)(1) and (2)(A).)

“In ruling on [a motion to dismiss] the court must consider all matters relevant to a proper determination of the motion, including: (1) The court's file in the case and the declarations and supporting data submitted by the parties and, where applicable, the availability of the moving party and other essential parties for service of process; (2) The diligence in seeking to effect service of process; (3) The extent to which the parties engaged in any settlement negotiations or discussions; (4) The diligence of the parties in pursuing discovery or other pretrial proceedings, including any extraordinary relief sought by either party; (5) The nature and complexity of the case; (6) The law applicable to the case, including the pendency of other litigation under a common set of facts or determinative of the legal or factual issues in the case; (7) The nature of any extensions of time or other delay attributable to either party; (8) The condition of the court's calendar and the availability of an earlier trial date if the matter was ready for trial; (9) Whether the interests of justice are best served by dismissal or trial of the case; and (10) Any other fact or circumstance relevant to a fair determination of the issue.” (Cal. Rules of Court, rule 3.1342(e).)

Petitioner and Plaintiff Charleen Wignall-Ewing commenced this action on January 30, 2023, by filing a Civil Complaint against Bruce Miroglio, and Gene Armstead both in his individual capacity and in his capacity as Trustee of the John Scruggs 2014 trusts. Ms. Wignall- Ewing filed a First Amended Complaint (FAC) on April 3, 2023. On August 9, 2023, Mr. Armstead demurred to the FAC. The Court sustained the demurrer by Minute Order of

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