Filed 10/27/25 Steward v. Superior Court CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
RANDOLPH W. STEWARD,
Petitioner, E080811
v. (Super.Ct.No. CIVSB2200990)
THE SUPERIOR COURT OF SAN OPINION BERNARDINO COUNTY,
Respondent;
RO-JOY-MIL LLC,
Real Party in Interest.
APPEAL from the Superior Court of San Bernardino County. Bryan F. Foster,
Judge. Construed as petition for writ of mandate and granted.
Randolph W. Steward, in pro. per., for Petitioner.
No appearance for Respondent.
No appearance for Real Party in Interest.
1 In this partition action, defendant and appellant Randolph W. Steward appeals an
interlocutory judgment ordering the sale of three properties. He argues, among other
things, that the interlocutory judgment fails to determine the interests of the parties in the
properties as required by statute. We agree. Following Summers v. Superior Court
(2018) 24 Cal.App.5th 138 (Summers), which on similar facts questioned whether the
interlocutory judgment was appealable and construed the appeal as a petition for writ of
mandate, we construe Steward’s appeal as a petition for writ of mandate and grant the 1 petition.
Plaintiff and respondent Ro-Joy-Mil LLC (Ro-Joy-Mil), which did not file a
respondent’s brief in this appeal, filed a complaint against Steward and others in February
2022. The complaint includes a cause of action for partition of three properties it co-
owns with Steward. It later sought an interlocutory judgment of partition by sale, which
the trial court entered on December 29, 2022.
Steward raises three arguments. He first argues that the trial court lacked
jurisdiction to grant the motion because an earlier partition case involving the same
properties remained pending in a different trial court department that had specifically
retained jurisdiction over the matter. Steward requests judicial notice of certain filings in
that case, which we grant. (Evid. Code, §§ 452, subd. (d), 459.) Those filings do not,
however, show that a different department still has jurisdiction. A partition action filed in
1 Undesignated statutory references are to the Code of Civil Procedure.
2 2006 named Steward as a defendant and involved the same properties, and the trial court
issued a July 13, 2010 order stating it would “retain[] jurisdiction of this matter to enforce
all orders issued in this matter.” (See also King v. Steward (Nov. 21, 2014, E052121)
[nonpub. opn.].) But Ro-Joy-Mil was not a party in that action, and the order was for a
sale of the properties that appears not to have occurred and was instead superseded by a
different order that did not retain jurisdiction. The July 13, 2010 order stated that the
properties would be listed for 12 months at a certain list price and that the price would be
lowered every 90 days, but in 2012, the trial court entered judgment naming Steward and
the plaintiffs in that action as the sole owners of the subject properties and terminating
the interests of any unknown persons claiming such an interest. Because the July 13,
2010 order provided that the subject properties would be listed for only 12 months, and
because the 2012 judgment simply named Steward and the plaintiffs as owners of the
properties, the trial court has no basis for continuing jurisdiction. Steward cites no
authority supporting a different conclusion. We therefore reject his argument.
Steward’s second argument is that the trial court erred in ordering a partition sale
of the properties without first determining the parties’ interests in them. Following
Summers, we agree with Steward.
We first follow Summers’s procedural approach and construe Steward’s appeal as
a petition for writ of mandate. Section 904.1, subdivision (a)(9) authorizes appeals to be
taken “‘[f]rom an interlocutory judgment in an action for partition determining the rights
and interests of the respective parties and directing partition to be made.’” (See
3 Summers, supra, 24 Cal.App.5th at p. 141, citing § 904.1, subd. (a)(9).” In Summers, the
trial court’s ruling “pointedly did not determine the rights and interests of the parties.”
(Summers, at p. 141.) Thus, “[g]iven the ruling’s failure to determine the parties’
ownership interests,” Summers “question[ed] whether the ruling [was] an appealable
interlocutory judgment within the meaning of section 904.1, subdivision (a)(9).)
(Summers, supra, at p. 141.) Instead of deciding whether the ruling was an appealable
interlocutory judgment, however, Summers “exercise[d its] discretion to treat the appeal
as a petition for a writ of mandate. Treating a purported appeal as a petition for writ of
mandate is appropriate when, as here, there is uncertainty about an order’s appealability.”
(Id. at p. 142.) Here, too, in light of the uncertainty about whether the order is
appealable, we construe the appeal as a petition for writ of mandate.
Summers then, over four paragraphs, discussed the applicable law, concluding that
a trial court errs when it orders the manner of partition (such as by sale) without first
determining the parties’ interests in the property:
“‘“[P]artition” is “the procedure for segregating and terminating common interests
in the same parcel of property.”’ [Citation.] It is a ‘“‘remedy much favored by the law.
The original purpose of partition was to permit cotenants to avoid the inconvenience and
dissension arising from sharing joint possession of land. An additional reason to favor
partition is the policy of facilitating transmission of title, thereby avoiding unreasonable
restraints on the use and enjoyment of property.’”’ [Citation.]
4 “The governing statute is section 872.720. Subdivision (a) declares that ‘[i]f 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.’ (§ 872.720, subd. (a).) The order of partition ‘shall order that
the property be divided among the parties in accordance with their interests as determined
in the interlocutory judgment.’ (§ 872.810.) Section 872.720, subdivision (b), allows the
court to issue sequential interlocutory judgments for original concurrent and successive
owners if the court determines that it ‘is impracticable or highly inconvenient to make a
single interlocutory judgment that determines, in the first instance, the interest of all the
parties in the property.’ (§ 872.720, subd. (b).)
“When the trial court ‘determines the interests of the parties in the property and
orders the partition of the property,’ it shall decide the manner of partition ‘unless [this] is
to be later determined.’ (§ 872.720, subd. (a).) ‘The manner of partition may be “in
kind”—i.e., physical division of the property [citation] according to the parties’ interests
as determined in the interlocutory judgment. [Citations.] Alternatively, if the parties
agree or the court concludes it “would be more equitable,” the court may order the
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Filed 10/27/25 Steward v. Superior Court CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
RANDOLPH W. STEWARD,
Petitioner, E080811
v. (Super.Ct.No. CIVSB2200990)
THE SUPERIOR COURT OF SAN OPINION BERNARDINO COUNTY,
Respondent;
RO-JOY-MIL LLC,
Real Party in Interest.
APPEAL from the Superior Court of San Bernardino County. Bryan F. Foster,
Judge. Construed as petition for writ of mandate and granted.
Randolph W. Steward, in pro. per., for Petitioner.
No appearance for Respondent.
No appearance for Real Party in Interest.
1 In this partition action, defendant and appellant Randolph W. Steward appeals an
interlocutory judgment ordering the sale of three properties. He argues, among other
things, that the interlocutory judgment fails to determine the interests of the parties in the
properties as required by statute. We agree. Following Summers v. Superior Court
(2018) 24 Cal.App.5th 138 (Summers), which on similar facts questioned whether the
interlocutory judgment was appealable and construed the appeal as a petition for writ of
mandate, we construe Steward’s appeal as a petition for writ of mandate and grant the 1 petition.
Plaintiff and respondent Ro-Joy-Mil LLC (Ro-Joy-Mil), which did not file a
respondent’s brief in this appeal, filed a complaint against Steward and others in February
2022. The complaint includes a cause of action for partition of three properties it co-
owns with Steward. It later sought an interlocutory judgment of partition by sale, which
the trial court entered on December 29, 2022.
Steward raises three arguments. He first argues that the trial court lacked
jurisdiction to grant the motion because an earlier partition case involving the same
properties remained pending in a different trial court department that had specifically
retained jurisdiction over the matter. Steward requests judicial notice of certain filings in
that case, which we grant. (Evid. Code, §§ 452, subd. (d), 459.) Those filings do not,
however, show that a different department still has jurisdiction. A partition action filed in
1 Undesignated statutory references are to the Code of Civil Procedure.
2 2006 named Steward as a defendant and involved the same properties, and the trial court
issued a July 13, 2010 order stating it would “retain[] jurisdiction of this matter to enforce
all orders issued in this matter.” (See also King v. Steward (Nov. 21, 2014, E052121)
[nonpub. opn.].) But Ro-Joy-Mil was not a party in that action, and the order was for a
sale of the properties that appears not to have occurred and was instead superseded by a
different order that did not retain jurisdiction. The July 13, 2010 order stated that the
properties would be listed for 12 months at a certain list price and that the price would be
lowered every 90 days, but in 2012, the trial court entered judgment naming Steward and
the plaintiffs in that action as the sole owners of the subject properties and terminating
the interests of any unknown persons claiming such an interest. Because the July 13,
2010 order provided that the subject properties would be listed for only 12 months, and
because the 2012 judgment simply named Steward and the plaintiffs as owners of the
properties, the trial court has no basis for continuing jurisdiction. Steward cites no
authority supporting a different conclusion. We therefore reject his argument.
Steward’s second argument is that the trial court erred in ordering a partition sale
of the properties without first determining the parties’ interests in them. Following
Summers, we agree with Steward.
We first follow Summers’s procedural approach and construe Steward’s appeal as
a petition for writ of mandate. Section 904.1, subdivision (a)(9) authorizes appeals to be
taken “‘[f]rom an interlocutory judgment in an action for partition determining the rights
and interests of the respective parties and directing partition to be made.’” (See
3 Summers, supra, 24 Cal.App.5th at p. 141, citing § 904.1, subd. (a)(9).” In Summers, the
trial court’s ruling “pointedly did not determine the rights and interests of the parties.”
(Summers, at p. 141.) Thus, “[g]iven the ruling’s failure to determine the parties’
ownership interests,” Summers “question[ed] whether the ruling [was] an appealable
interlocutory judgment within the meaning of section 904.1, subdivision (a)(9).)
(Summers, supra, at p. 141.) Instead of deciding whether the ruling was an appealable
interlocutory judgment, however, Summers “exercise[d its] discretion to treat the appeal
as a petition for a writ of mandate. Treating a purported appeal as a petition for writ of
mandate is appropriate when, as here, there is uncertainty about an order’s appealability.”
(Id. at p. 142.) Here, too, in light of the uncertainty about whether the order is
appealable, we construe the appeal as a petition for writ of mandate.
Summers then, over four paragraphs, discussed the applicable law, concluding that
a trial court errs when it orders the manner of partition (such as by sale) without first
determining the parties’ interests in the property:
“‘“[P]artition” is “the procedure for segregating and terminating common interests
in the same parcel of property.”’ [Citation.] It is a ‘“‘remedy much favored by the law.
The original purpose of partition was to permit cotenants to avoid the inconvenience and
dissension arising from sharing joint possession of land. An additional reason to favor
partition is the policy of facilitating transmission of title, thereby avoiding unreasonable
restraints on the use and enjoyment of property.’”’ [Citation.]
4 “The governing statute is section 872.720. Subdivision (a) declares that ‘[i]f 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.’ (§ 872.720, subd. (a).) The order of partition ‘shall order that
the property be divided among the parties in accordance with their interests as determined
in the interlocutory judgment.’ (§ 872.810.) Section 872.720, subdivision (b), allows the
court to issue sequential interlocutory judgments for original concurrent and successive
owners if the court determines that it ‘is impracticable or highly inconvenient to make a
single interlocutory judgment that determines, in the first instance, the interest of all the
parties in the property.’ (§ 872.720, subd. (b).)
“When the trial court ‘determines the interests of the parties in the property and
orders the partition of the property,’ it shall decide the manner of partition ‘unless [this] is
to be later determined.’ (§ 872.720, subd. (a).) ‘The manner of partition may be “in
kind”—i.e., physical division of the property [citation] according to the parties’ interests
as determined in the interlocutory judgment. [Citations.] Alternatively, if the parties
agree or the court concludes it “would be more equitable,” the court may order the
property sold and the proceeds divided among the parties.’ [Citation.]
“Two points are made clear by these provisions. First, an interlocutory judgment
in a partition action is to include two elements: a determination of the parties’ interests in
the property and an order granting the partition. (§ 872.720, subd. (a).) Second, the
manner of partition—i.e., a physical division or sale of the property—is to be decided
5 when or after the parties’ ownership interests are determined, but not before. (Ibid.)”
(Summers, supra, 24 Cal.App.5th at pp. 142-143.)
“The standard of review for an interlocutory judgment of partition is abuse of
discretion” (Cummings v. Dessel (2017) 13 Cal.App.5th 589, 597), and “a disposition that
rests on an error of law constitutes an abuse of discretion” (In re Charlisse C. (2008) 45
Cal.4th 145, 159).
Here, the trial court’s ruling ordered a sale of the subject properties without
specifying the parties’ interests. The trial court “lacked the authority to order the sale of
the propert[ies] before it determined the parties’ respective ownership interests.”
(Summers, supra, 24 Cal.App.5th at p. 144.)
Steward’s third argument is that the trial court abused its discretion in ordering a
sale of the subject properties instead of partitioning the subject properties “in kind.”
Because our disposition will require the trial court to revisit the partition motion, Steward
can raise his arguments regarding the manner of partition there after the trial court
determines the parties’ respective interests in the properties. (See Summers, supra, 24
Cal.App.5th at p. 143 [“the manner of partition . . . is to be decided when or after the
parties’ ownership interests are determined, but not before”].)
DISPOSITION
Let a peremptory writ of mandate issue directing respondent superior court in Ro-
Joy-Mil, LLC v. Steward, et al. (Super. Ct. San Bernardino County, No. CIVSB 2200990)
6 to vacate its order of December 29, 2022, and to enter a new and different order
consistent with this opinion. The parties are to bear their own costs.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL J.
We concur:
McKINSTER Acting P. J. MILLER J.