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1 CARTER RICH PC
Brian C. Carter, Esq. SBN 139456
2 Alexander C. Rich, Esq. SBN 294745
Margarita S. Rice, Esq. SBN 337151
3 305 N. Main Street
P.O. Box 1709
4 Ukiah, CA, 95482
bcarter@carterrichpc.com
5 (707) 462-6694
(707) 462-7839 fax
6
Counsel for Plaintiff SUSAN FOPPIANO VALERA
7
8
9
SUPERIOR COURT OF CALIFORNIA
10
COUNTY OF SONOMA
11
12 SUSAN FOPPIANO VALERA, etc., ) Case No. SCV-269355
)
13 Plaintiff, ) Unlimited Civil
)
14 v. ) [Proposed] ORDER GRANTING IN PART
) VALERA MOTION FOR SUMMARY
15 LOUIS M. FOPPIANO, etc., et al., ) ADJUDICATION RE INTERLOCUTORY
) JUDGMENT FOR PARTITION BY SALE,
16 Defendants. ) CONTINUING APPOINTMENT OF
) REFEREE
17
Date: October 14, 2022
18 Time: 3:00 p.m.
Courtroom: 18, Hon. Jennifer V. Dollard
19
20 On October 13, 2022, a tentative ruling was issued pursuant to Sonoma County
21 Superior Court Rule concerning Susan Valera’s motion for summary interlocutory
22 adjudication of her cause of action for partition by sale. No party contested the court’s
23 tentative ruling. Accordingly, it became the final order of the court.
24 IT IS HEREBY ORDERED AS FOLLOWS:
25 Plaintiff’s motion for summary interlocutory adjudication of her cause of action for
26 partition by sale is GRANTED. Plaintiff’s request for judicial notice is GRANTED.
27
Defendants’ objections to Plaintiff’s evidence are OVERRULED. The issue of the
28
appointment of a referee is bifurcated and CONTINUED to January 6, 2023, at 3:00 p.m. in
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ORDER ON PLAINTIFF’S MOTION FOR SUMMARY ADJUDICATION RE
INTERLOCUTORY JUDGMENT FOR PARTITION BY SALE - Case No. SCV-269355
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Department 18. The parties are directed to engage in further meet and confer efforts for the
2
purpose of agreeing on a referee or submitting the information requested by the Court below.
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Plaintiff’s counsel shall submit a written order to the Court consistent with this tentative
4
ruling and in compliance with CRC Rule 3.1312.
5
Standards on Summary Judgment Summary adjudication “shall be granted if all the
6
papers submitted show that there is no triable issue as to any material fact and that the moving
7
8 party is entitled to a judgment as a matter of law.” (CCP § 437c(c).)
9 “A plaintiff moving for summary judgment “bears the burden of persuasion that ‘each element
10 of the ‘cause of action’ in question has been ‘proved,’ and hence that ‘there is no defense’
11 thereto.”” (Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1195; citing Aguilar v. Atlantic
12 Richfield Co. (2001) 25 Cal.4th 826, 850.)
13 If a plaintiff meets its initial burden, the burden shifts to the defendant to provide
14 sufficient evidence to raise a triable issue of fact as to the defense asserted. (CCP §
15 437c(p)(1).) An issue of fact exists if “the evidence would allow a reasonable trier of fact to
16 find the underlying fact in favor of the party opposing the motion in accordance with the
17
applicable standard of proof.” (Aguilar, 25 Cal.4th at 845.)
18
Analysis:
19
I. Partition by Sale
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It is well settled that in the absence of a waiver a joint tenant is entitled as a matter of
21
right to have his interest severed from that of his cotenant.” (Lazzarevich v. Lazzarevich
22
(1952) 39 Cal.2d 48, 50.) “A co-owner of property has an absolute right to partition unless
23
barred by a valid waiver.” (LEG Invs. v. Boxler (2010) 183 Cal.App.4th 484, 493.) “‘[T]he
24
right of partition may be waived by contract, either express or implied.’” (Ibid.)
25
26 “If the court finds that the plaintiff is entitled to partition, it shall make an
27 interlocutory judgment that determines the interests of the parties in the property and orders
28 the partition of the property and, unless it is to be later determined, the manner of partition.”
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ORDER ON PLAINTIFF’S MOTION FOR SUMMARY ADJUDICATION RE
INTERLOCUTORY JUDGMENT FOR PARTITION BY SALE - Case No. SCV-269355
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(CCP § 872.720(a).) “The court shall order that the property be divided among the parties in
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accordance with their interests in the property as determined in the interlocutory judgment.
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(CCP § 872.810.) “In lieu of dividing the property among the parties, the court shall order the
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property be sold and the proceeds divided among the parties in accordance with their interests
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in the property if the parties agree to such relief or the court determines sale and division of
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the proceeds would be more equitable than a division of the property.” (LEG Invs. v. Boxler,
7
8 supra, 183 Cal.App.4th at 493; CCP § 872.820.)
9 “[T]he court shall apportion the costs of partition among the parties in proportion to
10 their interests…” (CCP § 874.040, see CCP 874.010 for included costs of partition.)
11 “An interlocutory judgment in a partition action must include two elements: (1) a
12 determination of the parties' interests in the property and (2) an order granting the partition.
13 The actual manner of the partition (i.e., whether there will be a physical division of the
14 property or a sale of the property with the proceeds divided according to the interests) can be
15 ordered only when or after the parties' ownership is determined, but not before.” (Cal. Civ.
16 Prac. Real Property Litigation § 5:24, Partition actions; Summers v. Superior Court (2018) 24
17
Cal. App. 5th 138, 143, as modified, (June 27, 2018).)
18
Here, Plaintiff requests the Court order that the subject property be partitioned by sale.
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Defendants do not dispute this. Defendants also do not dispute Plaintiff’s representations
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regarding each parties’ ownership interest in the property. The Court finds that Plaintiff has
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met her burden on this motion. Accordingly, the Court orders that the property in question be
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partitioned by sale. The Court finds that the ownership interests in the property are as follows:
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1. Susan Foppiano Valera owns 33.3% interest;
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2. Paul Foppiano owns 20.8% interest.
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26 3. Gina Hocker owns 12.5% interest; and
27 4. Louis Foppiano and Helaine Foppiano jointly own, as trustees, 33.4 % interest.
28 II. Appointment of a Partition Referee
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ORDER ON PLAINTIFF’S MOTION FOR SUMMARY ADJUDICATION RE
INTERLOCUTORY JUDGMENT FOR PARTITION BY SALE - Case No. SCV-269355
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Plaintiff requests the Court appoint Tom Larson to act as the partition referee and the
2
listing agent of the property. Defendants have not contested that a partition referee should be
3
appointed. However, Defendants object to Tom Larson being appointed by the Court as the
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partition referee because the listing agent may not also act as the partition referee. Defendants
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submit that the partition referee must be a neutral agent.
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Defendants also submit that there are certain ingress/egress, water, and septic field
7
8 issues which must be resolved by the referee before marketing.
9 Plaintiff has submitted a declaration by Mr. Larson outlining his experience as a real
10 estate agent. Mr. Larson states that he has previously been appointed to serve “as a referee”
11 for the Superior Court in Mendocino County in a matter involving the sale of a winery.
12 However, the declaration does not provide further detail regarding what type of referee Mr.
13 Larson was appointed to act as, nor whether Mr. Larson was also permitted to act as the listing
14 agent in addition to being a partition referee. Regardless, this Court finds that having Mr.
15 Larson act in both roles would create a conflict of interest. The purpose of the referee is to
16 oversee the sale of the property to make sure it occurs in the manner ordered by the Court.
17
(CCP § 873.010).
18
This is different from a listing agent’s role. While the Court declines to appoint Mr.
19
Larson as the partition referee in this matter, there is nothing barring the parties from agreeing
20
to use Mr. Larson as the listing agent.
21
Defendants have provided the names of three other individuals whom they believe
22
would be more suitable as the referee. However, Defendants have not provided the Court with
23
any further information, such as their qualifications, their willingness to act as referee in this
24
matter, their ability to post a bond, their requested compensation, etc. The Court cannot
25
26 appoint any of Defendant’s nominees without such information.
27 Accordingly, the parties are ordered to meet and confer on a nominee for partition
28 referee. If the parties can agree on a nominee, they may submit a joint request for
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ORDER ON PLAINTIFF’S MOTION FOR SUMMARY ADJUDICATION RE
INTERLOCUTORY JUDGMENT FOR PARTITION BY SALE - Case No. SCV-269355
1
appointment, accompanied by the same detailed information outlined below, and a proposed
2
bond amount, as an ex parte. Upon appointing an agreed upon referee, the future hearing date
3
will be vacated.
4
However, if the parties cannot agree on one individual, each party must submit their
5
respective nominations to the Court not less than nine court days prior to the continued
6
hearing date. The parties’ submissions must include adequate information about the
7
8 nominees’ qualifications, compensation requirements, and willingness to act as the referee.
9 Furthermore, the Court will require the referee to post a bond; thus, the nominees must
10 confirm their consent and ability to do so. The parties should also address an appropriate bond
11 amount in their submissions. Contrary to Plaintiff’s request for the referee to be paid based on
12 a percentage of the sale proceeds, the Court will order that the referee be paid on an hourly
13 basis, at a rate which will be set by the Court at the future hearing date.
14
15 IT IS SO ORDERED.
16
17 ________________________________________________
Honorable Jennifer V. Dollard
18 Judge of the Superior Court of the State of California, County of Sonoma
19
20 Dated: _________________________
21
22 Approved as to form:
23
24 /s/ Edward McCutchan_
Edward Mccutchan, Esq.
25 Attorney for Defendants
26
27 Date: October 24, 2022
28
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ORDER ON PLAINTIFF’S MOTION FOR SUMMARY ADJUDICATION RE
INTERLOCUTORY JUDGMENT FOR PARTITION BY SALE - Case No. SCV-269355
Preview
1 CARTER RICH PC Brian C. Carter, Esq. SBN 139456 2 Alexander C. Rich, Esq. SBN 294745 Margarita S. Rice, Esq. SBN 337151 3 305 N. Main Street P.O. Box 1709 4 Ukiah, CA, 95482 bcarter@carterrichpc.com 5 (707) 462-6694 (707) 462-7839 fax 6 Counsel for Plaintiff SUSAN FOPPIANO VALERA 7 8 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF SONOMA 11 12 SUSAN FOPPIANO VALERA, etc., ) Case No. SCV-269355 ) 13 Plaintiff, ) Unlimited Civil ) 14 v. ) [Proposed] ORDER GRANTING IN PART ) VALERA MOTION FOR SUMMARY 15 LOUIS M. FOPPIANO, etc., et al., ) ADJUDICATION RE INTERLOCUTORY ) JUDGMENT FOR PARTITION BY SALE, 16 Defendants. ) CONTINUING APPOINTMENT OF ) REFEREE 17 Date: October 14, 2022 18 Time: 3:00 p.m. Courtroom: 18, Hon. Jennifer V. Dollard 19 20 On October 13, 2022, a tentative ruling was issued pursuant to Sonoma County 21 Superior Court Rule concerning Susan Valera’s motion for summary interlocutory 22 adjudication of her cause of action for partition by sale. No party contested the court’s 23 tentative ruling. Accordingly, it became the final order of the court. 24 IT IS HEREBY ORDERED AS FOLLOWS: 25 Plaintiff’s motion for summary interlocutory adjudication of her cause of action for 26 partition by sale is GRANTED. Plaintiff’s request for judicial notice is GRANTED. 27 Defendants’ objections to Plaintiff’s evidence are OVERRULED. The issue of the 28 appointment of a referee is bifurcated and CONTINUED to January 6, 2023, at 3:00 p.m. in -1- ORDER ON PLAINTIFF’S MOTION FOR SUMMARY ADJUDICATION RE INTERLOCUTORY JUDGMENT FOR PARTITION BY SALE - Case No. SCV-269355 1 Department 18. The parties are directed to engage in further meet and confer efforts for the 2 purpose of agreeing on a referee or submitting the information requested by the Court below. 3 Plaintiff’s counsel shall submit a written order to the Court consistent with this tentative 4 ruling and in compliance with CRC Rule 3.1312. 5 Standards on Summary Judgment Summary adjudication “shall be granted if all the 6 papers submitted show that there is no triable issue as to any material fact and that the moving 7 8 party is entitled to a judgment as a matter of law.” (CCP § 437c(c).) 9 “A plaintiff moving for summary judgment “bears the burden of persuasion that ‘each element 10 of the ‘cause of action’ in question has been ‘proved,’ and hence that ‘there is no defense’ 11 thereto.”” (Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1195; citing Aguilar v. Atlantic 12 Richfield Co. (2001) 25 Cal.4th 826, 850.) 13 If a plaintiff meets its initial burden, the burden shifts to the defendant to provide 14 sufficient evidence to raise a triable issue of fact as to the defense asserted. (CCP § 15 437c(p)(1).) An issue of fact exists if “the evidence would allow a reasonable trier of fact to 16 find the underlying fact in favor of the party opposing the motion in accordance with the 17 applicable standard of proof.” (Aguilar, 25 Cal.4th at 845.) 18 Analysis: 19 I. Partition by Sale 20 It is well settled that in the absence of a waiver a joint tenant is entitled as a matter of 21 right to have his interest severed from that of his cotenant.” (Lazzarevich v. Lazzarevich 22 (1952) 39 Cal.2d 48, 50.) “A co-owner of property has an absolute right to partition unless 23 barred by a valid waiver.” (LEG Invs. v. Boxler (2010) 183 Cal.App.4th 484, 493.) “‘[T]he 24 right of partition may be waived by contract, either express or implied.’” (Ibid.) 25 26 “If the court finds that the plaintiff is entitled to partition, it shall make an 27 interlocutory judgment that determines the interests of the parties in the property and orders 28 the partition of the property and, unless it is to be later determined, the manner of partition.” -2- ORDER ON PLAINTIFF’S MOTION FOR SUMMARY ADJUDICATION RE INTERLOCUTORY JUDGMENT FOR PARTITION BY SALE - Case No. SCV-269355 1 (CCP § 872.720(a).) “The court shall order that the property be divided among the parties in 2 accordance with their interests in the property as determined in the interlocutory judgment. 3 (CCP § 872.810.) “In lieu of dividing the property among the parties, the court shall order the 4 property be sold and the proceeds divided among the parties in accordance with their interests 5 in the property if the parties agree to such relief or the court determines sale and division of 6 the proceeds would be more equitable than a division of the property.” (LEG Invs. v. Boxler, 7 8 supra, 183 Cal.App.4th at 493; CCP § 872.820.) 9 “[T]he court shall apportion the costs of partition among the parties in proportion to 10 their interests…” (CCP § 874.040, see CCP 874.010 for included costs of partition.) 11 “An interlocutory judgment in a partition action must include two elements: (1) a 12 determination of the parties' interests in the property and (2) an order granting the partition. 13 The actual manner of the partition (i.e., whether there will be a physical division of the 14 property or a sale of the property with the proceeds divided according to the interests) can be 15 ordered only when or after the parties' ownership is determined, but not before.” (Cal. Civ. 16 Prac. Real Property Litigation § 5:24, Partition actions; Summers v. Superior Court (2018) 24 17 Cal. App. 5th 138, 143, as modified, (June 27, 2018).) 18 Here, Plaintiff requests the Court order that the subject property be partitioned by sale. 19 Defendants do not dispute this. Defendants also do not dispute Plaintiff’s representations 20 regarding each parties’ ownership interest in the property. The Court finds that Plaintiff has 21 met her burden on this motion. Accordingly, the Court orders that the property in question be 22 partitioned by sale. The Court finds that the ownership interests in the property are as follows: 23 1. Susan Foppiano Valera owns 33.3% interest; 24 2. Paul Foppiano owns 20.8% interest. 25 26 3. Gina Hocker owns 12.5% interest; and 27 4. Louis Foppiano and Helaine Foppiano jointly own, as trustees, 33.4 % interest. 28 II. Appointment of a Partition Referee -3- ORDER ON PLAINTIFF’S MOTION FOR SUMMARY ADJUDICATION RE INTERLOCUTORY JUDGMENT FOR PARTITION BY SALE - Case No. SCV-269355 1 Plaintiff requests the Court appoint Tom Larson to act as the partition referee and the 2 listing agent of the property. Defendants have not contested that a partition referee should be 3 appointed. However, Defendants object to Tom Larson being appointed by the Court as the 4 partition referee because the listing agent may not also act as the partition referee. Defendants 5 submit that the partition referee must be a neutral agent. 6 Defendants also submit that there are certain ingress/egress, water, and septic field 7 8 issues which must be resolved by the referee before marketing. 9 Plaintiff has submitted a declaration by Mr. Larson outlining his experience as a real 10 estate agent. Mr. Larson states that he has previously been appointed to serve “as a referee” 11 for the Superior Court in Mendocino County in a matter involving the sale of a winery. 12 However, the declaration does not provide further detail regarding what type of referee Mr. 13 Larson was appointed to act as, nor whether Mr. Larson was also permitted to act as the listing 14 agent in addition to being a partition referee. Regardless, this Court finds that having Mr. 15 Larson act in both roles would create a conflict of interest. The purpose of the referee is to 16 oversee the sale of the property to make sure it occurs in the manner ordered by the Court. 17 (CCP § 873.010). 18 This is different from a listing agent’s role. While the Court declines to appoint Mr. 19 Larson as the partition referee in this matter, there is nothing barring the parties from agreeing 20 to use Mr. Larson as the listing agent. 21 Defendants have provided the names of three other individuals whom they believe 22 would be more suitable as the referee. However, Defendants have not provided the Court with 23 any further information, such as their qualifications, their willingness to act as referee in this 24 matter, their ability to post a bond, their requested compensation, etc. The Court cannot 25 26 appoint any of Defendant’s nominees without such information. 27 Accordingly, the parties are ordered to meet and confer on a nominee for partition 28 referee. If the parties can agree on a nominee, they may submit a joint request for -4- ORDER ON PLAINTIFF’S MOTION FOR SUMMARY ADJUDICATION RE INTERLOCUTORY JUDGMENT FOR PARTITION BY SALE - Case No. SCV-269355 1 appointment, accompanied by the same detailed information outlined below, and a proposed 2 bond amount, as an ex parte. Upon appointing an agreed upon referee, the future hearing date 3 will be vacated. 4 However, if the parties cannot agree on one individual, each party must submit their 5 respective nominations to the Court not less than nine court days prior to the continued 6 hearing date. The parties’ submissions must include adequate information about the 7 8 nominees’ qualifications, compensation requirements, and willingness to act as the referee. 9 Furthermore, the Court will require the referee to post a bond; thus, the nominees must 10 confirm their consent and ability to do so. The parties should also address an appropriate bond 11 amount in their submissions. Contrary to Plaintiff’s request for the referee to be paid based on 12 a percentage of the sale proceeds, the Court will order that the referee be paid on an hourly 13 basis, at a rate which will be set by the Court at the future hearing date. 14 15 IT IS SO ORDERED. 16 17 ________________________________________________ Honorable Jennifer V. Dollard 18 Judge of the Superior Court of the State of California, County of Sonoma 19 20 Dated: _________________________ 21 22 Approved as to form: 23 24 /s/ Edward McCutchan_ Edward Mccutchan, Esq. 25 Attorney for Defendants 26 27 Date: October 24, 2022 28 -5- ORDER ON PLAINTIFF’S MOTION FOR SUMMARY ADJUDICATION RE INTERLOCUTORY JUDGMENT FOR PARTITION BY SALE - Case No. SCV-269355