Nickles vs Holmes

TENTATIVE RULING(S) FOR August 20, 2026 Department S37 – Judge Winston Keh This court follows California Rules of Court, rule 3.1308(b) for tentative rulings. (See San Bernardino Superior Court Local Emergency Rule 8.) Tentative rulings for each law & motion will be posted on the internet (https://www.sb-court.org) by 3:00 p.m. on the court day immediately before the hearing.

You may appear in person at the hearing although remote appearance by CourtCall is preferred. (See www.sb-court.org/general-information/remote-access).

If you do not have Internet access or if you experience difficulty with the posted tentative ruling, you may obtain the tentative ruling by calling the department (S-37) at (909) 708-8707 or the Administrative Assistant (909) 708-8756, who prepared the ruling.

If you (or both parties) wish to submit on the Tentative, notify the other party and call the department by 4:00 pm the day before and your appearance may be excused unless the Court orders you to appear.

You must appear at the hearing if you are so directed by the court in the tentative ruling. Be prepared to address those issues set forth by the court in its ruling.

UNLESS OTHERWISE NOTED, THE PREVAILING PARTY IS TO GIVE NOTICE OF THE

RULING.

Nickles vs Holmes

__________________________________________________________________________

TENTATIVE RULING(S):

DISCUSSION

Before the Court is Defendant Holmes’ Motion for an Order: (1) Approving Appraisal, or in the

Alternative, for a Court-Ordered Independent Appraisal, (2) Approving Buyout, or in the

Alternative, (3) an Order for Sale and Setting an Evidentiary Hearing as to the Equitable Division

of Proceeds from the Sale. In the Motion, Defendant primarily seeks to buy out Plaintiff’s

remaining 1/3 interest in the Subject Property in the sum of $42,238.33, pursuant to an appraisal

obtained by Defendant.

Both sides have fully briefed the issues through their opposition and reply briefs. Having

considered the submitted papers, the Court issues the following findings and orders:

1. Request for Judicial Notice

Defendant requests that the Court take judicial notice of the following documents:

1. Exhibit 1 – Grant Deed recorded in the Official Records of San Bernardino County as

Document No. 2023-0066278 on March 21, 2023; and

2. Exhibit 2 – Grant Deed recorded in the Official Records of San Bernardino County as

Document No. 2025-0269324 on November 4, 2025.

The Court GRANTS Defendant's request for judicial notice as to Exhibits 1 and 2 pursuant to

Evidence Code section 452, subdivisions (c) and (h).

2. Statement of Law

The Real Property Partition Act ("RPPA"), codified at Code of Civil Procedure sections 874.311

through 874.323, applies to actions for partition of real property filed on or after January 1, 2023,

when the property is held in tenancy in common and there is no agreement in a record binding

all cotenants that governs the partition of the property. (Code Civ. Proc., § 874.311.) When the

RPPA applies, the provisions governing general partition proceedings (Code Civ. Proc., §§

872.010–874.240) may also apply; however, to the extent of any inconsistency, the RPPA

controls. (Code Civ. Proc., § 874.313, subd. (b).) The parties may agree that the RPPA will not

apply, but absent such an agreement, the RPPA applies automatically to qualifying partition

actions. (Code Civ. Proc., § 874.313, subd. (a).)

Under the RPPA, the Court ordinarily determines the fair market value of the property by

ordering an appraisal by a disinterested real estate appraiser licensed in California. The

appraisal assumes full ownership of the fee-simple interest and does not account for any

fractional-interest discount. (Code Civ. Proc., § 874.316, subds. (a), (d).)

Once the appraisal is completed, the appraiser must file a sworn or verified appraisal with the

Court. Within 10 days after the appraisal is filed, the Court must provide notice to each party with

a known address stating: (1) the appraised value of the property; (2) that the appraisal is

available at the court clerk's office; and (3) that a party may file an objection to the appraisal,

stating the grounds for the objection, no later than 30 days after the notice is sent. (Code Civ.

Proc., § 874.316, subds. (d), (e).)

The Court must thereafter set a hearing at least 30 days after the notice of appraisal is sent to

the parties. At that hearing, the Court may consider evidence of value offered by any party in

addition to the court-ordered appraisal. The Court must determine the fair market value of the

property and provide notice of that determination to the parties before considering the merits of

the partition action. (Code Civ. Proc., § 874.316, subds. (f), (g).)

An appraisal is not required, however, if all cotenants agree on the value of the property or on

another method of valuation. In that circumstance, the Court adopts the agreed-upon value or

the value produced by the agreed-upon method. (Code Civ. Proc., § 874.316, subd. (b).)

Additionally, the Court may dispense with an appraisal if it determines that the evidentiary value

of an appraisal is outweighed by its cost. In that event, following an evidentiary hearing, the

Court determines the property's fair market value and provides notice of that determination to the

parties. (Code Civ. Proc., § 874.316, subd. (c).)

3.

Analysis

A. Applicability of the RPPA

The parties initially held title to the Subject Property as joint tenants. (RJN, Exh. 1.) Defendant

Cesene subsequently transferred his one-third interest in the Subject Property to Defendant

Holmes. (RJN, Exh. 2.) As a result, Defendant Holmes now holds a two-thirds interest in the

Subject Property, and the joint tenancy was severed, resulting in a tenancy in common. (Civ.

Code, § 683.2, subd. (a)(2); Estate of Mitchell (1999) 76 Cal.App.4th 1378, 1385 [holding that a

joint tenancy in real property may be severed unilaterally by, among other means, executing and

delivering a deed to a third person, executing a deed to oneself, executing a written declaration

of severance, or executing another written instrument evidencing an intent to sever].)

Accordingly, because the joint tenancy was severed and the Subject Property is now held in

tenancy in common, the RPPA applies to this action.

B. Merits of the Motion

i. Appraisal and Fair Market Value

Defendant asks the Court to determine the fair market value of the Subject Property by adopting

an appraisal obtained by Defendant on February 11, 2026, from licensed appraiser Dwaine

Mitchell ("Defendant's Appraisal"). (See Holmes Decl., Exh. B.) Defendant's Appraisal states that

the fair market value of the Subject Property is approximately $690,000.

Plaintiff opposes Defendant's request and contends that Defendant's Appraisal is outdated and

does not accurately reflect the current fair market value of the Subject Property. Plaintiff instead

relies on an appraisal prepared by licensed appraiser Omar Loza ("Plaintiff's Appraisal"), which

values the Subject Property at approximately $790,000. (See Nickles Decl., Exh. 2.)

In reply, Defendant contends that Plaintiff's Appraisal likewise does not accurately reflect the

property's fair market value because several of the comparable properties used in that appraisal

differ materially from the Subject Property. For example, Defendant points out that Comparable

Nos. 1 and 3 are two-story homes and that Comparable No. 4 contains substantially more

improvements.

The parties' competing appraisals underscore why the RPPA requires the Court to follow the

valuation procedures set forth in Code of Civil Procedure section 874.316. The statute does not

authorize the Court, absent the parties' agreement, to simply select and adopt the valuation

offered by one party.

Section 874.316 provides three relevant procedures for determining fair market value. First,

where all cotenants agree upon the property's value or upon a method of valuation, the Court

must adopt the agreed-upon value or the value produced by the agreed-upon method. (Code

Civ. Proc., § 874.316, subd. (b).) Second, if the Court determines that the evidentiary value of an

appraisal is outweighed by its cost, the Court may dispense with an appraisal and determine the

property's fair market value following an evidentiary hearing. (Id., subd. (c).) Third, where an

appraisal is appropriate, the Court must appoint a disinterested real estate appraiser licensed in

California to determine the property's fair market value, assuming sole ownership of the fee-

simple estate. The appraiser must thereafter file a sworn or verified appraisal with the Court. (Id.,

subd. (d).)

Subdivision (b) does not apply because the parties have not agreed upon either the value of the

Subject Property or a method for determining its value. Accordingly, the Court may not simply

adopt either Defendant's Appraisal or Plaintiff's Appraisal as the property's fair market value.

Subdivision (c) likewise does not apply. Neither party has presented evidence establishing that

the evidentiary value of an appraisal is outweighed by the cost of obtaining one. To the contrary,

both parties have already obtained and paid for separate appraisals.

The Court therefore proceeds under section 874.316, subdivision (d). Accordingly, the parties

shall meet and confer regarding the selection of a disinterested real estate appraiser licensed in

California and shall file a stipulation for the appointment of the selected appraiser on or before

August 28, 2026. The appointed appraiser shall conduct an appraisal of the Subject Property

and file a sworn or verified appraisal with the Court. (Code Civ. Proc., § 874.316, subd. (d).)

No later than 10 days after the appraisal is filed, the Court shall provide notice to each party with

a known address stating: (1) the appraised fair market value of the Subject Property; (2) that the

appraisal is available at the court clerk's office; and (3) that a party may file an objection to the

appraisal, stating the grounds for the objection, no later than 30 days after the notice is sent.

(Code Civ. Proc., § 874.316, subd. (e).)

Thereafter, the Court shall conduct a hearing to determine the fair market value of the Subject

Property no sooner than 30 days after the notice of appraisal is sent to each party, regardless of

whether a party files an objection. At that hearing, the Court may consider the court-ordered

appraisal as well as any other evidence of value offered by a party, including the appraisals

submitted in connection with the present Motion. (Code Civ. Proc., § 874.316, subd. (f).)

Following that hearing, and before considering the merits of the partition action, the Court shall

determine the fair market value of the Subject Property and provide notice of that determination

to the parties. (Code Civ. Proc., § 874.316, subd. (g).)

ii. Defendant's Request for Approval of a Buyout

Defendant alternatively seeks an order approving the purchase of Plaintiff's remaining one-third

interest in the Subject Property for $42,238.33. Defendant represents that this amount

constitutes one-third of the property's purported equity after deducting a current mortgage payoff

of $563,285.00. (See Holmes Decl., Exh. C.)

Defendant's request is premature.

Code of Civil Procedure section 874.317 establishes the procedure governing a cotenant's

election to buy out the interests of cotenants who have requested partition by sale. Under

subdivision (a), after the Court determines the property's value pursuant to section 874.316, the

Court must provide notice that a cotenant who did not request partition by sale may elect to

purchase all interests held by the cotenants who requested partition by sale. The purchasing

cotenant must provide notice of that election within 45 days after the Court's notice. (Code Civ.

Proc., § 874.317, subds. (a), (b).) The purchase price is then calculated based upon the value of

the entire parcel determined under section 874.316 and the selling cotenant's fractional

ownership interest. (Id., subd. (c).)

Thus, the statutory procedure requires the Court to first determine the fair market value of the

Subject Property under section 874.316 before a buyout may proceed under section 874.317.

Because the Court has not yet determined the fair market value of the Subject Property pursuant

to section 874.316, Defendant's request for approval of a buyout in the amount of $42,238.33 is

premature.

Accordingly, the Court DENIES Defendant's Motion to the extent it requests approval of a buyout

of Plaintiff's one-third interest for $42,238.33.

iii. Defendant's Request for an Order of Sale

In the alternative, Defendant requests an order directing the sale of the Subject Property

pursuant to Code of Civil Procedure section 874.320 and, if a sale is ordered, an evidentiary

hearing concerning the equitable division of the sale proceeds.

This request is likewise premature.

Section 874.320 establishes procedures governing a court-ordered open-market sale of real

property. It does not, however, independently establish when a court must order a sale. That

determination is governed by Code of Civil Procedure section 872.820, which provides that the

Court shall order the property sold and the proceeds divided among the parties according to their

interests, as determined in the interlocutory judgment, when:

(a) The parties agree to such relief, by their pleadings or otherwise; or

(b) The court determines that, under the circumstances, sale and division of the proceeds would

be more equitable than division of the property.

(Code Civ. Proc., § 872.820.)

Here, Plaintiff has not agreed to a sale. Nor has the Court determined that sale and division of

the proceeds would be more equitable than division of the property. Moreover, no partition

referee has been appointed.

Accordingly, the Court DENIES Defendant's Motion to the extent it requests an order directing

the sale of the Subject Property pursuant to Code of Civil Procedure section 874.320.

RULING

Based on the foregoing, the Court rules as follows:

1. Defendant's Request for Judicial Notice is GRANTED as to Exhibits 1 and 2 pursuant to

Evidence Code section 452, subdivisions (c) and (h).

2. The parties are ORDERED to meet and confer regarding the selection of a disinterested

real estate appraiser licensed in California and shall file a stipulation for the appointment

of the selected appraiser on or before August 28, 2026. The appraisal shall be

conducted, and the resulting sworn or verified appraisal shall be filed with the Court, in

accordance with Code of Civil Procedure section 874.316, subdivision (d). Under CCP

section 874.040, partition costs are to be apportioned among the parties in proportion to

their interests, or alternatively as what the court may deem as equitable. Since the parties

do not have an equal 50/50 interest in the property, Defendant should bear 2/3 of the

cost, while Plaintiff bears 1/3 of the cost.

3. Defendant's Motion is DENIED to the extent it seeks approval of a buyout of Plaintiff's

one-third interest in the Subject Property for $42,238.33. The request is premature

because the Court has not yet determined the fair market value of the Subject Property

pursuant to Code of Civil Procedure section 874.316.

4. Defendant's Motion is DENIED to the extent it seeks an order directing the sale of the

Subject Property pursuant to Code of Civil Procedure section 874.320. The Court has not

yet determined that sale and division of the proceeds would be more equitable than

division of the property, as contemplated by Code of Civil Procedure section 872.820.