Francis, et al. v. Bourgeois, et al.
Published: Apr. 19, 2001 | Result Date: Feb. 7, 2001 | Filing Date: Jan. 1, 1900 |Case number: BC230197 – $0
Judge
Court
L.A. Superior Central
Attorneys
Plaintiff
Michael A. Taitelman
(Freedman & Taitelman LLP)
Defendant
Facts
The parties were all co-owners of a piece of property as tenants in common, holding the property in fee. There
was a dispute concerning the ownership of the property or percentages of ownership. The plaintiffs sought a
partition, but there was no agreement between the parties as to a restriction partition. There was a covenant
recorded against the property in 1977, which was a covenant and agreement between the owners to hold the
land as one parcel and not to sell any portion thereof separately.
The covenant ran with the land and was binding upon the successors, heirs and assignees. It remains in effect
until the Los Angeles Municipal Code permits otherwise. The defendants pled the existence of the covenant,
but alleged that it could be rescinded.
Settlement Discussions
There were extensive settlement discussions over the course of six to eight months, but no settlement was reached.
Result
The court granted plaintiffÆs summary judgment motion and ruled that plaintiffs had an absolute right to partition. The only issue was whether the covenant prevents the physical partition of the land. Based on the language of the covenant, the court determined that the property could not be partitioned by physical division. The burden was thus shifted to defendant Ezor, who failed to carry his burden. The court sustained all of the evidentiary objections to defendantÆs offered declaration of Howard E. King. The court found that defendant failed to provide any authority to support his argument that, as a matter of law, partition was not appropriate in this case. The defendant contended that it was the plaintiffÆs burden to show that division of the property into subparcels of equal value could not be made and that the aggregate economic value of the property would be diminished through physical division. However, the defendant did not offer any authority for this position.
Other Information
<P>On April 4, 2001, the court denied defendantÆs motion for reconsideration.</P>
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