Solis v. VALLAR

Opinion

PARRILLI, J.

Consolacion P. Solis moves to dismiss an appeal by Edgardo P. Vallar from an order confirming a partition sale under Code of

[712]

Civil Procedure section 873.750.

1

Solis contends the order is not appealable, relying on

Hummel

v.

First National Bank

(1987) 191 Cal.App.3d 489, 493 [236 Cal.Rptr. 449]. We conclude

Hummel

was wrong on this point; both statutory and case law support the appealability of an order entered under section 873.750. Solis also argues that Vallar lacks standing to appeal. This claim has no merit. We deny the motion, and in view of that disposition we also deny Solis’s motion for sanctions against Vallar for filing a frivolous appeal.

The record has not yet been filed; we take the background facts from the affidavit filed by Solis’s counsel under California Rules of Court, rule 42(a) and the affidavit supporting the sanctions motion. Solis and Vallar are co-owners of a residence in Hayward. Solis wanted to sell her share of the property but Vallar, who was in the Philippines, did not respond to her communications. Solis filed this action to compel partition and sale. Vallar failed to answer and Solis took his default. The court ordered partition and sale, and denied Vallar’s subsequent motion for relief from default. Vallar did not appeal from the interlocutory judgment directing the partition and sale, which is appealable under section 904.1, subdivision (a)(9). However, after his bid for the property was rejected in favor of another bidder, Vallar appealed from the court’s order confirming the sale to the prevailing bidder. No final judgment terminating the partition proceedings has been entered.

In

Hummel,

the trial court confirmed a partition sale in April 1985 and entered a final judgment confirming the legal description and transfer of the property in June 1985. Hummel, who held a small beneficial interest in the property, filed a notice of appeal from the order confirming the sale. The court stated: “This, of course, is a nonappealable order. Appellant seeks to have us treat it as an appealable order after final judgment within the meaning of Code of Civil Procedure section 904.1, subdivision (b). However, the judgment which said order succeeded, to wit: the judgment of partition, was not itself a final judgment within the meaning of Code of Civil Procedure section 904.1, subdivision (a), but an interlocutory judgment of partition made appealable by Code of Civil Procedure section 904.1, subdivision (i). Hence subdivision (b) of Code of Civil Procedure section 904.1 does not apply to it. The April 25, 1985, order was therefore a nonappealable interlocutory ruling.”