Williams v. Williams

LILLIE, J. Defendant, brother of and cotenant with plaintiff in certain real property, appeals from an interlocutory decree determining the respective interests of the parties, directing partition and appointing three referees to report thereon, entered on order granting plaintiff's motion for summary judgment.

The complaint alleges that plaintiff and defendant are cotenants in real property located at Fourth and Spring Streets in the City of Los Angeles upon which is located lessee Bank of America under a lease dated April 1, 1953, ending March 31, 1973, and that the property cannot be divided and partition made without great prejudice to the owners; and prays for a sale of the property and division of the proceeds. In his answer defendant, admitting that he is a tenant in common with plaintiff in the real property in question, [646]specifically denies 1 ‘ that said property cannot be divided and partition made thereof without great prejudice to the owners thereof”; alleges “that a partition in kind could be decreed . . . [and] This particular real estate and improvements are very susceptible to an equitable, and, under the circumstances of this case, also a very beneficial partition in kind,” and that a controversy arose between plaintiff and defendant over negotiations for the renewal of a lease with the Bank of America; and prays for a partition in kind and order enjoining plaintiff from preventing further progress in his (defendant’s) negotiations with the Bank of America for the lease renewal.

Plaintiff based his motion for summary judgment on the undisputed fact that the property is held by the parties as cotenants, and on defendant’s admission and his (plaintiff’s) concession that the property can be partitioned in kind, thus, there is no triable issue of fact. Plaintiff’s declaration alleges facts and certain advice of his attorney, of which he had no knowledge at the time he filed his complaint, which support a partition of the property in kind, and his agreement “with the Defendant, Halsey L. Williams, that the property can be partitioned in kind.” Declaration of plaintiff's counsel is to the same effect.

In opposition, defendant’s declaration incorporated 14 letters written by defendant, plaintiff, Continental Service Company (leasing agent for Bank of America) and defendant’s prior counsel between April 5 and August 9, 1966, copies of which were attached thereto as exhibits. This correspondence reflects negotiations with the Bank of America for renewal of its lease during which plaintiff agreed with the bank’s terms and signed the lease on December 15, 1965; a bitter controversy between defendant and plaintiff over the inclusion in the lease of an “inflation clause”; their inability to agree to this and other clauses in the lease; the refusal of defendant to execute the lease as signed by plaintiff; and a termination of negotiations with the Bank of America by plaintiff on May 13, 1966, because of the unacceptability to him of changes in the lease requested by defendant and, after seven months of negotiations, his refusal to re-enter into a lease agreement with defendant because of “the slovenly way in which he conducts business. ’ ’ One month later, on June 15, 1966, plaintiff filed his suit for partition.