Sumners v. Super. Ct.

Filed 6/1/18 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

RICARDO IAN SUMMERS et al., Petitioners, A151128 v. THE SUPERIOR COURT OF SAN (San Francisco FRANCISCO COUNTY, Super. Ct. No. CGC-16-550626) Respondent; WAN FEN TAN, Real Party in Interest.

Ricardo Summers and Alejandro Gomez own investment real estate with Wan Fen Tan, but the parties disagree on the amount of their respective ownership interests. The trial court ordered the property to be partitioned and sold, with the parties’ ownership interests to be determined at a later date. Summers and Gomez appealed. Although we question whether the order was appealable, we construe the appeal as a petition for a writ of mandate. On the merits, we hold that the partition statutes do not allow a court to order the manner of a property’s partition, such as the sale here, before it determines the ownership interests in the property. Accordingly, we reverse the trial court’s order. I. FACTUAL AND PROCEDURAL BACKGROUND Our understanding of the background of this case is limited due to the slim appellate record. We know, however, that in early 2016 Tan sued Summers and Gomez to resolve a dispute about a piece of investment real estate they jointly own in San Francisco. The dispute centered around the amount of each party’s ownership interest in

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the property and corresponding right to receive income from, and obligation to pay expenses for, the property. Although our record does not include a copy, the complaint apparently included claims for quiet title, partition, and an accounting. Summers and Gomez answered and filed a cross-complaint, which apparently included claims for quiet title, partition, and breach of contract. In September 2016, Tan filed a motion for summary adjudication, requesting “the property be partitioned and sold by private sale” with the sale proceeds to be held in escrow until resolution of the litigation disputes. As part of her motion, Tan pointed out that Summers and Gomez also sought a partition of the property. Summers and Gomez opposed the motion. They recognized that all of the parties wanted a partition and sale, but they claimed “the timing of the partition by sale is not right since the parties have not resolved the respective percentage of ownership and respective liabilities for the property.” According to them, selling the property before establishing the parties’ ownership interests would amount to “a huge waste” because the sold property would not generate rental income while the parties’ ownership interests were litigated. A hearing was held in early January 2017, and shortly thereafter the trial court granted Tan’s motion. In its ruling, the court stated, “Judgment is entered for the real property [at issue] to be partitioned and sold by private sale, for all liens to be paid, a referee shall be appointed, and all sale proceeds shall be held in escrow until final resolution of this matter.” Summers and Gomez appealed. II. DISCUSSION The trial court’s ruling was interlocutory in the sense that it left issues for future determination. (See, e.g., Vivid Video, Inc. v. Playboy Entertainment Group, Inc. (2007) 147 Cal.App.4th 434, 441.) We therefore begin by considering our ability to review the ruling since interlocutory orders are generally not appealable unless they are expressly authorized as such in Code of Civil Procedure1 section 904.1. Subdivision (a)(9) of that