Sandra Janine Briley vs. Esperanza Y Garcia

202200562278CUOR: Sandra Janine Briley vs. Esperanza Y Garcia

08/19/2026 in Department 42

Motion for Order Appointing a Partition Referee Pursuant to Code of Civil Procedure Section 873.010 to take Possession of and Oversee the Sale of Co-owned Real Property

The partes should be familiar with the facts and proceedings in this long-running matter so the court will not recite them again. Needless to say, that this will basically be the 4th time that in pro per Plaintiff is requesting relief from the Court to get the property sold in compliance with Judge Walsh’s November 8, 2024 order – first on April 6, 2026, second on May 7, 2026, third on June 26, 2026, and now. Service was timely and properly made, and the Court will therefore reach the merits.

Discussion and Tentative Ruling

Plaintiff argues that a neutral referee is required to manage listing, marketing, sale and distribution of proceeds resulting from the sale of the property by partition. Defendant and her attorney have blocked attempts to inspect the property so that it can be sold. There is a deadlock. Plaintiff asks that Chris Garvin be selected as the real estate agent by the referee. Fees and costs for the referee, and all costs of sale, should be paid by Defendant based on her delay and efforts to frustrate the order of the Court.

The proposed referee should be an experienced professional qualified to handle real estate valuation and court-supervised sales. Plaintiff requests that a “full accounting to be made to the Court; immediate reimbursement to [Plaintiff] in an amount found to be due; and equitable relief under Code of Procedure Section 872.140.” Plaintiff claims total combined damages exceeding $308,828.77. The partition statutes provide that 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 order the partition of the property and, unless it is to be later determined, the manner of partition.

CCP § 872.720(a). Except as provided in CCP § 872.730, partition as to concurrent interests in the property shall be as of right unless barred by a valid waiver. CCP § 872.710(b). CCP § 872.610 states: “In the conduct of the action, the court may 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.” According to the Law Revision Commission Comments to this section, “its purpose is to give the broadest possible statutory authorization for powers that the court, to a large extent, apparently already had.

The succeeding sections of this article elaborate on, but do not exhaust, the court’s power in partition actions.” For example, the succeeding sections permit the court to issue TROs and injunctions for the purpose of preventing waste, protecting the property or title and preventing interference with a court-ordered partition. CCP § 872.130.

“An action for partition is an equitable proceeding. Although partition is a matter of right when a cotenant desires it, it is subject to the requirement of fairness ” Penasquitos, Inc. v. Holladay (1972) 27 Cal.App.3d 356, 358 (citations omitted). Notwithstanding Section 872.810, the court shall order that the property be sold and the proceeds be divided among the parties in accordance with their interests in the property as determined in the interlocutory judgment in the following situations: (a) The parties agree to such relief, by their pleadings or otherwise. (b) The court determines that, under the circumstances, sale and division of the proceeds would be more equitable than division of the property.

For the purpose of making the determination, the court may appoint a referee and take into account his report.” CCP § 873.010: “Court authority concerning referee (a) The court shall appoint a referee to divide or sell the property as ordered by the court. (b) The court may: (1) Determine whether a referee’s bond is necessary and fix the amount of the bond. (2) Instruct the referee. (3) Fix the reasonable compensation for the services of the referee and provide for payment of the referee's reasonable expenses. (4) Provide for the date of commencement of the lien of the referee allowed by law. (5) Require the filing of interim or final accounts of the referee, settle the accounts of the referee, and discharge the referee. (6) Remove the referee. (7) Appoint a new referee.” CCP § 873.040: “Appointment of person selected by parties (a) The court shall appoint as referee under this title any person or persons to whose appointment all parties have consented. (b) In the case of a minor party or a party for whom a conservator of the estate has been appointed, the guardian or conservator of the estate of the party may so consent.” Here, there is no person identified as the parties’ choice to be a referee.

Notably, although Section 873.010 uses the word “shall,” this does not mean that appointment of a partition referee is mandatory. The word “shall” as used in said section should be construed to require the appointment of a referee only where it is determined that a referee is necessary or would be desirable or helpful and that it should not be so strictly construed as to require the expense and time- consuming services of a referee where the court has adequate evidence before it to render

its decision. The function of the interlocutory judgment is to permit the trial court to determine those matters which have been presented to it for determination, and which it can determine upon the evidence submitted to it without the necessity of a referee. The only function of a referee is to assist the court in determining those matters which cannot be so determined upon the evidence before it. While it is true that the word “shall” is normally given a mandatory construction, this is not always true, and to give it such a construction in this instance would be to ignore prior statutory construction of section 873.010's predecessor statute.

Section 873.010 supersedes former section 763. Section 763 provided that under certain circumstances the court “must” appoint three referees. The word “must” is equally as mandatory as the word “shall.” In O'Bryant v. Bosserman (1949) 94 Cal.App.2d 353 [], the Court of Appeal held that it was not necessary for the trial court to appoint a referee where the court had heard all of the evidence and the appointment of a referee was unnecessary Richmond v. Dofflemyer (1980) 105 Cal.App.3d 745, 755-756.

The Richmond court ultimately found that, “[i]n light of the voluminous testimonial and documentary evidence in this case, it would appear the court was amply justified in concluding it would be a waste of time and money to have a referee review and recommend on those issues.” (Id. at p. 756.) Here, Plaintiff requests appointment of an appropriate referee for the purpose of the sale and determination of the proceeds of the parties. This should not be necessary but given Defendant’s seeming intransigence the Court should be willing to appoint a referee, to be paid for by Defendant exclusively.

The rights of the parties are clear, and the Court’s order is explicit. There is no justifiable reason offered by Defendant or her counsel for the delay. There have been no oppositions filed to any of the four motions seeking to enforce the judgment here. The property has already been ordered to be sold. However, given the stalemate, and to the extent it would be useful to assist in selling the property, The Motion appointing a referee is granted. The Court will not grant the other requests for relief at this point.