Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CV32486
ROBIE, J.
Defendants Alan and Lorraine King appeal from an interlocutory judgment partitioning real property, contending the trial court erred in “preempt[ing them] from being reimbursed for the time [Alan King] spent developing the property and creating [a] Tentative Parcel Map.” Finding no error, we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs Robert and Eilene Grossman and defendants Alan and Lorraine King purchased 55 acres of real property with the plan of subdividing it. They eventually obtained a tentative map for an 11-parcel subdivision, but before they obtained a final map and sold the parcels, a dispute arose between them and the Grossmans filed a complaint for partition of the property. The Grossmans requested partition by sale because they believed “the property’s worth is considerably more if it can be sold as a subdivision project.” In their answer, the Kings requested that any partition of the property be in kind, rather than by sale, and that they “be awarded a compensatory adjustment for securing the re-zoning and approval of [the tentative subdivision map].”
At trial, the Kings’ attorney made an offer of proof that if Alan King were called to testify, he would state “that even though he’s invested a great deal of time into this project, he would prefer to have a division in kind of the property, even if it meant he received nothing for the time he put into it.” The trial court suggested counsel simply “put [Mr. King] on” the witness stand, and subsequently King testified he put in “[c]ountless” hours getting the subdivision map approved. He also testified he would like to see the property partitioned in kind, with him and his wife getting half and the Grossmans getting the other half. When asked how he would feel about getting only half of the 55 acres and not “getting any benefit from the time [he] put into getting a subdivision map approved for the property,” King said he “could live with that.”
When both sides had rested, the Kings’ attorney told the court it was his “understanding the issue of any right to reimbursement for time spent doing the subdivision is not before the Court now, only if that were to be sold [a]s such.” The Grossmans’ attorney objected, saying, “We’ve concluded this case, and we’re not reopening it for Mr. King to come back in here with some kind of records that he’s suddenly compiled about his time in this matter.” The court clarified that what the Kings’ attorney meant was that if the property was partitioned in kind rather than by sale, the Kings would not be “claiming any reimbursement.” The Kings’ attorney agreed that was correct.
The trial court subsequently entered an interlocutory judgment partitioning the property in kind. (See Code Civ. Proc., § 872.710 [providing for an interlocutory judgment of partition].) Subject to further analysis by a referee, the interlocutory judgment gave the Grossmans property consisting of five of the 11 parcels on the tentative map, with the property consisting of the remaining six parcels going to the Kings. The referee was “to determine what compensation if any may be required to be made by either of the parties to the other in order to correct any inequality of the . . . partition,” given that the Kings would be receiving approximately five more acres than the Grossmans. The interlocutory judgment further provided that “[t]he referee shall not take into account any claim of any of the parties for compensation for services rendered” and that “[n]one of the parties are entitled to or awarded compensation for services rendered in the development of the property.”
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
The Kings timely appealed from the interlocutory judgment. (See § 904.1, subd. (a)(9) [making an interlocutory judgment of partition appealable].)
DISCUSSION
On appeal, the Kings complain only about the two provisions quoted above that preclude them from receiving any compensation for Alan King’s work in subdividing the property. They first claim these provisions are contrary to subdivision (d) of section 873.820. Later in their brief, they admit that statute “only applies to Partition by Sale.” Despite the fact that a partition by sale was not ordered here, the Kings assert the court should not have absolutely precluded the possibility of compensation for Alan King’s work in subdividing the property because the Kings should have that right “if the property should be sold” because “[p]artition by sale could still be possible and if so, [the Kings] would not want the [Grossmans] to be able to assert that [they] ha[ve] a final Interlocutory Judgment which bars recovery for those expenses.”
Section 873.820 appears in a chapter (§ 873.510 et seq.) that deals exclusively with the details of sale when partition by sale has been ordered. In particular, section 873.820 directs the order in which “[t]he proceeds of sale for any property sold shall be applied.” (§ 873.820.)
We are not persuaded. Even assuming for the sake of argument that section 873.820 might somehow allow the Kings to have claimed compensation for Alan King’s work in subdividing the property from the proceeds of sale in the event of partition by sale, the interlocutory judgment here provides for partition in kind, and the Kings offer no support -- either in the record or in authority -- for their assertion that “[p]artition by sale could still be possible.” “An interlocutory decree in an action for the partition of real property, although preliminary to the final judgment of confirmation, is conclusive as to the matters determined therein [citations]; that is, it is final upon the questions adjudicated in it and is to all intents and purposes a final judgment from which an appeal may be taken [citation], although it is not the last judgment entered in the action.” (Pista v. Resetar (1928) 205 Cal. 197, 199.) Given that the interlocutory judgment here determined the property would be partitioned in kind and no party has challenged that aspect of the judgment in this appeal, partition by sale no longer remains a possibility, and therefore section 873.820 does not -- and will not -- apply. The Kings also contend the provisions precluding any compensation for Alan King’s work in subdividing the property are contrary to section 874.040, which deals with the apportionment of the costs of partition. The primary flaw in this argument is that the Kings do not explain how compensation for Alan King’s work in subdividing the property can be characterized as among the “costs of partition” to which section 870.040 applies. Section 874.010 defines what the costs of partition are, and the costs described in that statute do not encompass compensation for time spent by one of the parcel’s owners obtaining a tentative subdivision map prior to partition.
Specifically, section 874.040 provides that “[e]xcept as otherwise provided in this article, the court shall apportion the costs of partition among the parties in proportion to their interests or make such other apportionment as may be equitable.”
Under section 874.010, “The costs of partition include: [¶] (a) Reasonable attorney’s fees incurred or paid by a party for the common benefit. [¶] (b) The fee and expenses of the referee. [¶] (c) The compensation provided by contract for services of a surveyor or other person employed by the referee in the action. [¶] (d) The reasonable costs of a title report procured pursuant to Section 872.220 with interest thereon at the legal rate from the time of payment or, if paid before commencement of the action, from the time of commencement of the action. [¶] (e) Other disbursements or expenses determined by the court to have been incurred or paid for the common benefit.”
The Kings next contend the provisions precluding any compensation for Alan King’s work in subdividing the property are contrary to sections 873.210, 873.220, and 873.250. Essentially the Kings contend it was contrary to these provisions for the court “to divide the property according to the Tentative Subdivision Map which was the result of [Alan King]’s efforts without taking into consideration his time spent creating the Tentative Subdivision Map.” They contend that because the Grossmans may “obtain advantages [from partition in kind] by having five parcels as now reflected in the Tentative Subdivision Map” (assuming the parcels shown on the tentative map continue to exist following partition of the property in this proceeding), they “should be entitled to seek reasonable reimbursement for the countless hours [Alan King] spent in helping get the Tentative Subdivision Map approved.”
“The referee appointed by the court to make a division of the property shall divide the property and allot the several portions to the parties, quality and quantity relatively considered, according to their interests in the property as determined in the interlocutory judgment.” (§ 873.210.)
“As far as practical, and to the extent it can be done without material injury to the rights of the other parties, the property shall be so divided as to allot to a party any portion that embraces improvements made by that party or that party’s predecessor in interest. In such division and allotment, the value of such improvements shall be excluded.” (§ 873.220.)
“Where division cannot be made equally among the parties according to their interests without prejudice to the rights of some, compensation may be required to be made by one party to another to correct the inequality.” (§ 873.250, subd. (a).)
The Kings have failed to persuade us that any of the statutes they cite required the court to allow them to claim compensation for Alan King’s work in subdividing the property. Section 873.210 requires a referee appointed to divide the property to do so “according to [the parties’] interests in the property as determined in the interlocutory judgment.” Nothing in this statute addresses compensation for work performed on the property by one of the parties prior to partition. To the extent the Kings are trying to suggest they had a greater “interest[] in the property” because of the work Alan King performed to obtain the tentative map, they cite no evidence to support this suggestion.
As for section 873.220, that statute is of no assistance to the Kings because it addresses partitioning property in a manner that gives a party who made improvements to the property the portion of the property that embraces those improvements. The Kings fail to explain how work Alan King performed to obtain the tentative map reasonably could be characterized as “improvements” to the property. Even if the tentative map itself somehow could be deemed an “improvement,” the Kings fail to explain how the property could have been partitioned to give them the portion embracing that improvement, given that the tentative map applied to the entire property.
Finally, subdivision (a) of section 873.250 does not help the Kings either. That provision allows the court to require one party to compensate the other to correct an unequal division of the property “[w]here division cannot be made equally among the parties according to their interests without prejudice to the rights of some.” (§ 873.250, subd. (a).) The trial court applied this statute here when it ordered the referee to determine what compensation, if any, should be required to correct the inequality of the partition that may have resulted from giving the Kings approximately five more acres than the Grossmans. The Kings fail to explain how this statute reasonably can be construed to encompass a claim for compensation for work performed on the property by one party before partition. Again, to the extent the Kings are trying to suggest they had a greater “interest” in the property because of the work Alan King performed to obtain the tentative map, they cite no evidence to support this suggestion.
In summary, the Kings have failed to show, by citation to authority or the evidence, that in partitioning the property in kind the trial court was required to allow them compensation for the work Alan King performed to obtain the tentative map that the court relied on to divide the property.
DISPOSITION
The interlocutory judgment of partition is affirmed. The Grossmans shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
We concur: RAYE, Acting P. J. CANTIL-SAKAUYE, J.