You are on page 1of 11

COMPLAINT FOR JUDICIAL PARTITION OF REAL ESTATE(Caption and Title)COMPLAINT

COMES NOW the plaintiff by the undersigned attorney, and unto this HonorableCourt, respectfully
avers:

1 !hat the plaintiff and the defendant are both of age, and re
s i d e n t s o f """""""""""""""""""""""""""""""#$

!hat the said parties are co%o&ners, by virtue of intestate inheritance fro'
their d e c e a s e d p a r e n t s , o f c e r t a i n r e a l p r o p e r t i e s l o c a t e d i n " " " " " " " " " " "
" " " " , ' o r e particularly described as follo&s, to &it:
()escription of the estate of &hich partition is de'anded*+

!hat the plaintiff desires that the above real estate be partitioned bet&een the plaintiff
and the defendants# !hat the plaintiff has re-
u e s t e d o f t h e d e f e n d a n t t h a t t h e a b o v e % described real estate be a'icably partitioned
bet&een the' by 'utual agree'ent, but thesaid defendant refused and continues to refuse to do so

WHE.E/O.E, it is respectfully prayed:( a * ! h a t , a f t e r d u e h e a r i n g , t h e p a r t i t i o n o f
t h e a b o v e % d e s c r i b e d r e a l e s t a t e b e ordered bet&een the plaintiff and the defendant, share
and share ali0e
# (b*!hat the costs and e penses of these proceedings be t
a ed solely against thedefendant """"""""""""""", this """"""""" day of """"""""""""""",
$22" """""""""""""""""""""""" (3ttorney for the 4laintiff* """""""""""""""""""""""" (3ddress*

COMPLAINT FOR JUDICIAL PARTITION OF REAL ESTATE(Caption and Title)COMPLAINT
COMES NOW the plaintiff by the undersigned attorney, and unto this HonorableCourt, respectfully
avers:
1 !hat the plaintiff and the defendant are both of age, and re
s i d e n t s o f """""""""""""""""""""""""""""""

#$ !hat the said parties are co%o&ners, by virtue of intestate inheritance fro'
their d e c e a s e d p a r e n t s , o f c e r t a i n r e a l p r o p e r t i e s l o c a t e d i n " " " " " " " " " " "
" " " " , ' o r e particularly described as follo&s, to &it: ()escription of the estate of &hich partition is
de'anded*

+ !hat the plaintiff desires that the above real estate be partitioned bet&een the plaintiff
and the defendants# !hat the plaintiff has re-
u e s t e d o f t h e d e f e n d a n t t h a t t h e a b o v e % described real estate be a'icably partitioned
bet&een the' by 'utual agree'ent, but thesaid defendant refused and continues to refuse to do so

WHE.E/O.E, it is respectfully prayed:( a * ! h a t , a f t e r d u e h e a r i n g , t h e p a r t i t i o n o f
t h e a b o v e % d e s c r i b e d r e a l e s t a t e b e ordered bet&een the plaintiff and the defendant, share
and share alike and alike;
(b*!hat the costs and e penses of these proceedings be ta ed solely against
thedefendant """"""""""""""", this """"""""" day of """"""""""""""",
$22" """""""""""""""""""""""" (3ttorney for the 4laintiff* """""""""""""""""""""""" (3ddre

PARTITION AND/OR ACCOUNTING OF PROPERTIES

COMPLAINT

[PLAINTIFF(S) NAMES] )
Plaintiffs, )
)
v. )
)
)
)
)
[DEFENDANT(S) NAMES]and all )
persons unknown claiming any )
interest in the property,named )
as DOES 1 Through 50,Inclusive
)
Defendants
)
________________________________
)
)
)

Plaintiff complains and for causes of action alleges as follows:

FIRST CAUSE OF ACTION
(For ________ Against ____)

<>. The subject of this action is certain real property situated in ____ County, California

<>. Defendant__, ___ is__, and at all times herein mentioned was__, a resident__ of the City of ___,
County of __, State of California.

<>. Defendant__, ___, is__, and at all times herein mentioned, was__ a Corporation organized and
existing under the laws of the State of California with principle offices located at ___, in the City of
___, County of ___.
<>. Plaintiff__ is__ ignorant of the true names and capacities of defendants sued herein as DOES I
through X, inclusive, and therefore sues__ these defendants by such fictitious names. Plaintiff__ will
amend this complaint to allege their true names and capacities when ascertained.

<>. Plaintiff__ is__ informed and believes__ and thereon alleges__ that, at all times herein mentioned,
each of the defendants sued herein was the agent and employee of each of the remaining defendants
and was at all times acting within the purpose and scope of such agency and employment.

<>. The said real property is commonly known as ____, and more particularly described as follows:

[-----LEGAL DESCRIPTION-----]

<>. Plaintiff, ____, is the owner of _____[---specify proportionate amount of interest in the property ,
e.g., an undivided one-sixth interest (as shown in the title report attached to this complaint as Exhibit
"A" and made a part of this complaint by reference)------] in the above-mentioned property which is
coowned ____[----concurrently or in successive estates-----] by _____, herein named as defendant, and
which plaintiff reasonably believes will be materially affected by this action.

<>. Defendant, ___, ___[----has or claimes---] ____[---specify proportionate amount of interest in the
property, e.g., an undivided one-sixth interest (as shown in the title report attached to this complaint
as Exhibit "A" and made a part of this complaint by reference)-----] in the above-mentioned property
which is coowned ____[----concurrently or in successive estates----] by plaintiff and which plaintiff
reasonably believes will be materially affected by this action.

<>. [-----If plaintiff wishes partition as to all interests in the property, allege---- Plaintiff designates all
persons unknown claiming any interests in the property as defendants DOES 1 Through ____,
inclusive.----]

[------EITHER------]

<>. _____ who was coowner of ____ [---specify nature and proportionate amount of interest----] in the
property is deceased, as set out in the declaration of ____, filed with this complaint.

<>. On ___, 19___, _____ was duly appointed personal representative of ____, deceased, by order of
the Superior Court of California, County of ____, No. ____, and is hereby joined as defendant in this
action.
[------OR---------]

<>. _____ who was a coowner of ____[----specify nature and proportionate amount of interst-----] in
the property is ____[-----deceased or believed to be deceased-----] and plaintiff knows of no personal
representative, as set out in the declaration of ____, filed with this complaint.

<>. The plaintiff hereby joins as defendants the testate and intestate successors of ____, ____[---
deceased or believed to be deceased----], and all persons claiming by, through, or under ____ [---said
decedent or such person----].

[------CONTINUE-----]

<>. [----If plaintiff has knowledge of an unrecorded claim or interest in the property, allege:----
Defendant, ___, is the owner of ___[---specify proportionate amount of interest in property-----] which
is unrecorded and coowned by plaintiff ____[----concurrently or in successive estates----] and which
plaintiff reasonably believes will be materially affected by this action.

[--------EITHER -- if there are NO LIENS or ENCUMB. -------]

<>. There are no liens or encumbrances on the property appearing of record or otherwise known to
plaintiff or apparent from an inspection of the property.

[-----OR---- if there are liens and encumbrances------]

<>. The liens and encumbrances on the property appearing of record or otherwise known to plaintiff
or apparent from an inspection of the property and which plaintiff reasonably believes will be
materially affected by this action are as follows: ____[---set out liens or encumbrances including those
belonging to plaintiff, in tabular form if there are many, showing name, nature of interest, and
amounts remaining due----].
<>. [-----If plaintiff has procured a title repore allege: ----Prior to the commmencement of this action, it
was necessary for plaintiff to procure, and ____ procured a title report. Plaintiff incurred the expense
of $_____ in procuring the title report, and that sum is the reasonable expense thereof. The title
report is, and will be, kept available for inspection, copying, and use by the parties at _____,
California. A copy of the title report is attached hereto as Exhibit ____ and made a part of this
complaint.-----]

<>. [-----If ownership, share or quantity of interest of person having or claiming interest is unknown,
allege: ---- The ____[---ownership or share or quantity---] of the interest claimed by ____ is ____[---
unknownd or uncertain or contingent---]. [----If lack of knowledge, uncertainty, or contingency caused
by transfer to unborn or unascertained person or clall member, or by transfer in form of contingent
remainder, vested remainder subject to defeasance, executory interest, or similar disposition, add: ---
So far as is known to plaintiff, the following person(s)___ in being would be entitled to ownership of
the interest if the contingency on which the right of such person(s)___ depends occurred prior to the
commencement of this action: ____[---list names, ages, birthdates of any minors, and legal
disabilities, if any for each such person, e.g. Mary Smith, a minor 12 years old, born October 22,
19___.-----]

<>. [-----If parties agree to partition by sale, allege:----Plaintiff, ____, and defendant _____ have agreed
to partition by sale of the property in question [----and said agreement is attached to this complaint as
Exhibit ____ and made a part of this complaint by reference----]

<>. [----If plaintiff seeking partition by sale without agreement, allege: -----Partition by sale of the
property is more equitable than division in kind of the property because _____[----set forth facts
showing that sale is more equitable, e.g., since the property is ____, it cannot be physically divided----
].

<>. [-----If partition of successive estates is involved, allege: ---- Partition of the successive estates in
the property is in the best interests of all the parties because _____[----set forth facts showing that
such partition is in the best interests of the parties, e.g., the property is so old that it requires
extraordinary repairs, the expense of which has become unduly burdensome to the holder of the
possessory interest.-----]

<>. This action is brought and partition is sought herein, for the common benefit of the parties, to
preserve and secure to each of them ____ respective interest and rights in the property, and plaintiff
has incurred, and will incur, costs of partition herein, including reasonable attorney's fees, for the
common benefit of the parties hereto, in _____[----set forth either the approximate sum or state an
amount not yet ascertainable-----].

[----- OPTIONAL - FOR ACCOUNTING ----]
<>. Between ___, 19___ and ___, 19___, defendant ____[---specify facts, e.g, collected and received
from the tenants in possession of the real property all the rents and profits from the real property,
amounting to at least $_____ -----].

<>. Plaintiff has heretofore demanded of defendant that ____ account to plaintiff for any and all sums
so received by ____, and that ____ pay to plaintiff ____ share thereof, but defendant has failed and
refused to make such accounting or to pay to plaintiff the sums due to ___ and still fails and refuses to
do so.

<>. Due to defendant's refusal to make an accounting of _____ or to pay to plaintiff the sums due ___,
as alleged above, ____[----specify effect, e.g., the proceeds from future rents and profits of said real
property are in danger of being lost or misappropriated by defendant----] unless a receiver is
appointed by the court to _____[----specify, e.g., take possession of the real property and to collect
the rents until this action is finally determined----].

WHEREFORE, plaintiff__ pray__ judgment against defendant__ and each of them, as follows:

1. For partition ____[---in kind or by sale----] of the ____[---specify present or future or both----]
interests in the property according to the respective rights of the parties hereto;

2. For the expense reasonably incurred by plaintiff in obtaining a title report of the real property
____[---in an amount not yet ascertainable----], with interest thereon from ____, 19___[----date of
commencement of action];

3. That the costs of partition, and of this action, including reasonable counsel fees expended by
plaintiff and defendants for the common benefit, fees and expenses of referees, and other
disbursements be ordered paid by the parties respectively entitled to share in the lands divided, in
proportion to their respective interests therein and more particularly that plaintiff be reimbursed for
sums advanced in this regard beyond ____ just proportion thereof, and that the costs be included and
specified in the judgment and become a lien on the several shares of the parties;

4. For the costs of partition, including attorney's fees, necessarily incurred by a party for the common
benefit in prosecuting or defendant other actions or other proceedings for the protection,
confirmation, or perfection of title, setting the boundaries, or making a survey of the property, with
interest thereon from ___, 19___[----date of making expenditures----]; and

[----OPTIONAL --- RE ACCOUNT., RECEIVER ---]
<>. ________

5. For such other and further relief as the court may deem proper.

DATED: _______________ __________________________________________
(Signature)

VERIFICATION

I, ___, am a ___in the above-entitled action. I have read the foregoing ___and know the contents
thereof. The same is true of my own knowledge, except as to those matters which are therein alleged
on information and belief, and as to those matters, I believe it to be true.

I declare under penalty of perjury that the foregoing is true and correct and that this declaration was
executed at Long Beach, California.

DATED: _________________ __________________________
Plaintiff PAULA SMITH, as Administrator of the Estate of Nadia Manheim, Deceased, alleges:

1. The subject of this action is the real property (hereinafter referred to as "Real Property") located in
the City and County of San Francisco, State of California, commonly known as 649-651 Kansas Street,
San Francisco, California, and more particularly described as follows:

2. Plaintiff does not know the true names of the defendants sued herein as Does 1 to 100, inclusive.

3. NADIA Manheim, deceased, is the owner of an undivided one-half (½) fee simple interest as a
tenant in common in the Real Property.
4. Plaintiff is the duly-appointed, qualified, and acting Administrator of the Estate of Nadia Manheim,
Deceased, in the Matter of the Estate of Nadia Manheim, Deceased, Contra Costa County Probate No.
P04-00000

5. Defendant WILLIAM JONES is the owner of an undivided one-half (½) fee simple interest as a
tenant in common in the Real Property.

6. Defendants ROBERT D. FOREST and JANET TREES are the owners of a $130,000.00 face
value promissory note secured by deed of trust, dated November 20, 1998, against the undivided one-
half (½) interest in the Real Property of Defendant WILLIAM JONES.

7. Defendant CHASE MANHATTAN BANK, USA, N.A., is the owner of a $10,647.57 face value
judgment lien, dated July 8, 2002, against the undivided one-half (½) interest in the Real Property of
Defendant WILLIAM JONES.

8. Defendant BANK OF AMERICA CORPORATION is the owner of a $2,403.91 face value judgment
lien, dated August 31, 2004, against the undivided one-half (½) interest in the Real Property of Defendant
WILLIAM JONES.

9. Plaintiff names as defendants in this action all persons unknown, claiming any legal or equitable
right, title, estate, lien, or interest in the Real Property. The claim of each such unknown defendant is
without any right, and these defendants have no right, title, estate, lien, or interest in the Real Property, or
any part of it.

10. Plaintiff seeks partition of the entire fee simple interest in the Real Property.

11. Plaintiff requests that the Real Property be partitioned by sale. Such mode of partition is more
equitable in the circumstances than partition by physical division for the reason that the Real Property
consists of a single building which is not susceptible to physical division.

12. Plaintiff intends to obtain a title report on the Real Property in the form of a Litigation Guarantee,
at an expense to Plaintiff in an amount not yet ascertained. Said Litigation Guarantee, when obtained, will
be kept at the offices of DAVID B. NEMER, JR., Attorney at Law, 44 Montgomery Street, Suite 2500, San
Francisco, California 94104, for inspection, use and copying by the parties to this action.

13. Plaintiff has spent considerable sums of money in maintaining and preserving the Real Property
for the benefit of both Plaintiff and Defendants, and each of them, in an amount according to proof, but at
least the sum of $10,000, with interest at the rate of ten (10%) percent per annum from the date of each
expenditure. Plaintiff is entitled to judgment against each Defendant for his or her respective share of
sums reasonably spent, which judgment shall be secured by an equitable lien against the partition sale
proceeds and/or against the interests of Defendants, and each of them.

WHEREFORE, Plaintiff PAULA SMITH, as Administrator of the Estate of Nadia Manheim,
Deceased, prays:

A. For judgment partitioning the Real Property by sale and dividing the proceeds;

B. For judgment against defendants, and each of them, for their respective prorata shares of the
expense of the Litigation Guarantee, together with interest at the rate of ten (10%) percent per annum
from the date of filing of the complaint, and for their respective prorata shares of other costs of partition,
including but not limited to reasonable attorney's fees, as determined by the Court, which judgment shall
be secured by a lien on the respective interests of defendants, and each of them, in the Real Property or
proceeds of sale of the Real Property;

C. For judgment against defendants, and each of them, for their respective prorata shares of the
sums of money in expended by Plaintiff in maintaining and preserving the Real Property for the benefit of
both Plaintiff and Defendants, and each of them, in an amount according to proof, but at least the sum of
$10,000, together with interest at the rate of ten (10%) percent per annum from the date of each
expenditure by Plaintiff, which judgment shall be secured by a lien on the respective interests of
defendants, and each of them, in the Real Property or proceeds of sale of the Real Property;

D. For costs of suit; and

E. For such other and further relief as the Court considers proper.

Dated: .

________________________________

DAVID B. NEMER, JR.

Attorney for Plaintiff PAULA SMITH

as Administrator of the Estate of Nadia Manheim,
Deceased

VERIFICATION
I, the undersigned, state:

I am the plaintiff in the above-captioned matter. I have read the foregoing Complaint for Partition of
Real Property and know the contents thereof; the same is true of my own knowledge, except as to those
matters which are therein stated upon information and belief, and as to those matters I believe it to be
true.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true
and correct.

Dated: January 25, 2007.

_______________________________

PAULA SMITH, as Administrator of the

Estate of Nadia Manheim, Decease