Motion for Partition of Real Property by Sale and Appoint a Partition Referee
584.) “Its intentional relinquishment or abandonment of the right may be proved by evidence of words expressing an intent to relinquish the right or of conduct that is so inconsistent with an intent to enforce the contractual right as to lead a reasonable fact finder to conclude that the party had abandoned it.” (Ibid.)
Here, there is no evidence that Defendant waived its right to arbitration. Defendant not only reserved the right to compel arbitration, but it already exercised that right. Plaintiff fails to cite any authority showing that the submission of case management statement (which a party is required to file under the Rules of Court) results in “waiver” merely because the participant has selected “a jury trial” over a “nonjury trial” under section 5. Section 5 presumes that the court will hold a case management conference and set the matter for a jury or non-jury (bench) trial. However, when the arbitration petition is granted, this case is stayed and the court does not proceed with the case management conference.
Plaintiff has not raised any other arguments regarding the enforceability of the agreement. The Court finds Plaintiff has not met his burden of showing there is a defense to enforcement.
The motion to compel arbitration is granted. Plaintiff is ordered to arbitrate all of his claims. The action is stayed pending final resolution of the arbitration. (Code Civ. Proc. § 1281.4.)
The Case Management Conference is vacated. The Court sets an arbitration status conference for 12-4-26 at 9:00 a.m. in Department C11.
Defendant shall give notice of the ruling.
Case Management Conference – off calendar 5 Dyer Industrial, LLC vs. Impact Advertising, Inc.
2022-01291920 Motion for Entry of Judgment
Withdrawn 6 Freeman vs. Espinoza
2025-01511842 Motion for Partition of Real Property by Sale and Appoint a Partition Referee
Plaintiff Kerry Freeman moves for an interlocutory judgment ordering partition of the property located at 22145 Newbridge Drive, #12, Lake Forest, California, 92630 by sale, and the appointment of a referee.
As an initial matter, the Court notes that there are a number of procedural defects with respect to Defendant’s opposition.
First, the opposition was due to be filed and served on 6/8/26 (9 court days before hearing), but was not filed and served until 6/11/26. (
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Pursuant to CRC, Rule 3.1300(d) and (g), the court exercises its discretion and does not consider Defendant’s opposition for the first two reasons stated above.
The motion is nonetheless denied not for these reasons, but because Plaintiff fails to establish entitlement to the relief requested.
Partition is an equitable action that is governed by statute. (Code Civ. Proc. § 872.010 et seq.) Property may be partitioned by physical division, sale of the property and division of the proceeds, or court approved and supervised partition by appraisal. (Code Civ. Proc. §§ 873.210-290, 873.510-850, 873.910-980.) Generally, cotenants have an absolute right to partition the property, so long as they have not waived their right. (Williams v. Williams (1967) 255 Cal. App. 2d 648, 651.) The presumption is toward division, and against sale, unless it is shown that division would not be feasible and sale more equitable and fair. (Code Civ. Proc. § 872.820(b); Butte Creek Island Ranch v. Crim (1982) 136 Cal. App. 3d 360, 365.)
The interests of the parties, plaintiffs as well as defendants, may be put in issue, tried, and determined in a partition action. (Code Civ. Proc. § 872.610.) To the extent necessary to grant relief, the court “shall upon adequate proof ascertain the state of the title to the property.” (Code Civ. Proc. § 872.620.) Similarly, the court is to determine the status and priority of liens. (Code Civ. Proc. § 872.630.)
“At the trial, the court shall determine whether the plaintiff has the right to partition.” (Code Civ. Proc. § 872.710(a). [emphasis added]) 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 orders the partition of the property. (Code Civ. Proc. § 872.720(a).)
Thereafter, the court shall order that the property be divided in accordance with the parties’ interests as determined in the interlocutory judgment. (Code Civ. Proc. § 872.810.) If the court orders sale, the court shall appoint a referee to divide and sell the property. (Code Civ. Proc. § §872.010, 873.020.)
This statutory scheme envisions an interlocutory judgment of partition, and that must come as the result of a trial -- or summary judgment under Code Civ. Proc. § 437c. (See LEG Investments v. Boxler (2010) 183 Cal. App. 4th 484 (reversing denial of, and ordering trial court to grant, plaintiff’s motion for summary adjudication on partition cause of action).)
Although Plaintiff seeks partition of the property at issue by sale through this motion, a partition order can only be made after a trial or dispositive motion determining the parties’ interests and rights. Plaintiff does not provide any authority showing that the relief requested may be granted via a motion at this juncture.
Accordingly, the motion is denied.
The clerk will give notice.
Case Management Conference Off calendar. Court Trial set on 2-26-27 at 9:00 a.m. 7 Garcia vs. City of Santa Ana
2025-01493313 Demurrer to Amended Complaint / Motion to Strike Portions Of Complaint
The demurrer of defendants Tatiana Monroy, Brenda Monroy, Jennifer H. Lopez, and Lawrence G. Lyonss to the first amended complaint (“FAC”) of plaintiff Luis Alexander Deras Garcia is overruled in part and sustained in part with 15 days leave to amend, as stated below.
Defendants’ motion to strike portions of Plaintiff’s FAC is denied in part and granted in part with 15 days leave to amend, as stated below.
Facts Alleged in FAC In his FAC, Plaintiff alleges that he arrived an hour early for his appointment with Defendant Lyonss, Phd (also, “Dr. Lyonss”). Defendants Tatiana Monroy, Brenda Monroyo, and Lopez were in the