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1 || Brian J. Clark (SBN 277681)
Gregory P. Wayland (SBN 277437)
2 || Roberto G. Cruz (SBN 342729)
Attorneys Real Estate Group, APC
3 || 905 Highland Pointe Drive, Suite 100
Roseville, CA 95678
4 || Telephone: (916) 671-3138
Email: gwayland@AttorneysRE.com
5
6 || Attorneys for Susan Foppiano Valera
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SONOMA
10
-000-
11 | SUSAN FOPPIANO VALERA, an Case No.: SCV-269355
Individual,
12
OBJECTION TO DEFENDANTS .
13 Plaintiff, NOMINATION OF GARY WEINER AS
REFEREE
14 vs.
15 || LOUIS M. FOPPIANO, an individual and as
Trustee of The Helaine Noreen Foppiano and FAC: October I, 2021
16 || Louis Michael Foppiano 1997 Trust dated Trial: None Set
December 23, 1997, HELAINE N.
17 || FOPPIANO, an individual and as Trustee of
The Helaine Noreen Foppiano and Louis
18 || Michael Foppiano 1997 Trust dated
December 23, 1997, PAUL Foppiano, an.
19 || individual and as Trustee of the Gina Marie
Hocker Revocable Trust dated September 25,
20 || 2015, all persons unknown claiming any
interest in the property, and DOES 1-20,
21
22 Defendants.
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24
25
26
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1 TO THIS HONORABLE COURT, AND TO THE PARTIES AND THEIR
2 || COUNSEL OF RECORD: The Plaintiff, as prevailing party on the motion for summary
3 || adjudication, presents the following objection to the appointment of Gary Weiner to serve as
4 || partition referee:
5 In sum, Gary Weiner is primarily a mediator, Linda Pond is a top performing real estate
6 || licensee whose professional experience and lower billing rates will be far more advantageous to
7 || the Court and to the Parties for the following reasons:
8 1. Gary Weiner Does not Have a DRE Issued License, and Does not Possess
Practical Real Estate Experience by Comparison.
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2. Gary Weiner's Proposed Rates Correspond to Rates Applicable to an
10 Experienced Mediator, the Parties Would be Paying for Service and
Experience they Do Not Need.
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3. Gary Weiner's Locality Does Not Provide an Advantage to the Parties.
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4, The Delay in Filing is Not Prejudicial — Counsel Objected the Next Day — and
13 The Court Should Exercise its Discretion to Consider Linda Pond as
Referee.
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5. Defendants' Proposed Nominee Does Not Indicate Willingness to Be Paid From
15 Escrow As Linda Pond Has.
16
DISCUSSION
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1. Gary Weiner Does not Have a DRE Issued License, and Does not Possess
18 Practical Rea] Estate Experience by Comparison.
19 As compared to Linda Pond, the Defendants’ proposed referee has limited real estate
20 || experience with the marketing and sale of real property — and is not a Department of Real Estate
21 || Licensee. Instead, the Defendants' proposed referee is primarily a mediator.
22 Although the proposed referee includes experience on multiple arbitration and mediation
23 || panels, including for the California Association of Realtors, there is a significant difference
24 || between assessing the legal merits of a case and having practical first-hand knowledge of the
25 || management, listing, marketing, and sale of real property.
26 Linda Pond is a broker and has been her entire professional career — in performing her
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1 || regular professional functions she is responsible for managing other real estate licensees --- Gary
2 || Weiner is not. In the marketing and sale of real property, Linda Pond's professional experience
3 || far exceeds that of the Defendants’ proposed referee — as well as her ability to provide
4 || recommendations and substantively supported opinions about the marketing and sale of the
5 || property to the Court.
6 2. Gary Weiner's Proposed Rates Correspond to Rates Applicable to an
Experienced Mediator, the Parties Would be Paying for Service and
7 Experience they Do Not Need.
8 Quantitatively, the Defendants’ proposed referee would be more expensive on account of
9 || mediation experience, rather than experience as a referee or by virtue of experience performing
10 || the functions and duties of a person licensed by the California Department of Real Estate.
11 The additional hourly rate charged by Gary Weiner due to his experience as a mediator
12 || would not result in an added benefit to the Parties, as compared to the lifetime experience of
13 || Linda Pond as a real estate professional ~ who incidentally charges less per hour. (e.g., Gary
14 || Weiner proposes the rate of $525/hr, versus Linda Pond proposed rate of $425/hr).
15 3. Gary Weiner's Locality Does Not Provide An Advantage to the Parties.
16 The referee ultimately appointed by the Court will not need to be present in Sonoma
17 || County, for among other reasons (1) the referee will retain a local real estate agent, and (2) even
18 || filing and appearances in the Court are and have been remote. There is no substantive return on
19 || investment for selecting a local licensed attorney vs. a professional in the real estate industry to
20 || manage the listing and sale such as Linda Pond would be.
21 4. The Delay in Filing is Not Prejudicial — Counsel Objected the Next Day — and
The Court Should Exercise its Discretion to Consider Linda Pond as
22 Referee.
23 Linda Pond's decades of experience in real estate provide a superior base knowledge from
24 || which to guide the management and sale of the property at issue and make substantive
25 || recommendations to the Court.
26 Although Defendants’ object that Linda's speciality is ranches and wineries, the
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1 || Defendants overlook that the subject property is adjacent to a winery and is situated in wine
2 || country — and Linda Pond’s experience with potential buyers in this region can provide a
3 || substantial benefit to the Parties.
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5. Defendants' Proposed Nominee Does Not Indicate Willingness to Be Paid
5 From Escrow As Linda Pond Has.
6 Linda Pond indicated she could be paid out of escrow (Decl. LP, 13); the Defendants'
7 || proposed nominee made no such specification. Administratively, the payment of a referee from
8 || escrow streamlines and simplifies the process from the Parties' and the Court’s perspective, and is
9 || an additional factor making her a comparatively advantageous selection over Defendants’
10 || selection.
11 CONCLUSION
12 The Court and Parties would benefit from a real estate professional as a referee —
13 || particularly one who has experience in ranch and winery sales. The Defendant's proposed
14 || referee is a mediator, and does not possess the real estate substantive knowledge as Linda Pond
15 || would provide.
16 The Plaintiff objects to the Defendants’ selection on the foregoing basis, and respectfully
17 || submits that the Court should select Linda Pond as a referee for her distinguished and
18 || comparatively superior ability to guide the real estate transaction at issue. Linda Pond is also
19 || less expensive, and provides a superior bond.
20 Respectfully Submitted,
21 Attorne i state Group, APC
| 23 || Dated:Ah (é O27 Ne Ls. _ (]
Grégory P. Wayland, Esq.
24 , a or cy for Plaintii
3s | fp sa \ 4 era /
4
Preview
1 || Brian J. Clark (SBN 277681) Gregory P. Wayland (SBN 277437) 2 || Roberto G. Cruz (SBN 342729) Attorneys Real Estate Group, APC 3 || 905 Highland Pointe Drive, Suite 100 Roseville, CA 95678 4 || Telephone: (916) 671-3138 Email: gwayland@AttorneysRE.com 5 6 || Attorneys for Susan Foppiano Valera 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SONOMA 10 -000- 11 | SUSAN FOPPIANO VALERA, an Case No.: SCV-269355 Individual, 12 OBJECTION TO DEFENDANTS . 13 Plaintiff, NOMINATION OF GARY WEINER AS REFEREE 14 vs. 15 || LOUIS M. FOPPIANO, an individual and as Trustee of The Helaine Noreen Foppiano and FAC: October I, 2021 16 || Louis Michael Foppiano 1997 Trust dated Trial: None Set December 23, 1997, HELAINE N. 17 || FOPPIANO, an individual and as Trustee of The Helaine Noreen Foppiano and Louis 18 || Michael Foppiano 1997 Trust dated December 23, 1997, PAUL Foppiano, an. 19 || individual and as Trustee of the Gina Marie Hocker Revocable Trust dated September 25, 20 || 2015, all persons unknown claiming any interest in the property, and DOES 1-20, 21 22 Defendants. 23 24 25 26 1 1 TO THIS HONORABLE COURT, AND TO THE PARTIES AND THEIR 2 || COUNSEL OF RECORD: The Plaintiff, as prevailing party on the motion for summary 3 || adjudication, presents the following objection to the appointment of Gary Weiner to serve as 4 || partition referee: 5 In sum, Gary Weiner is primarily a mediator, Linda Pond is a top performing real estate 6 || licensee whose professional experience and lower billing rates will be far more advantageous to 7 || the Court and to the Parties for the following reasons: 8 1. Gary Weiner Does not Have a DRE Issued License, and Does not Possess Practical Real Estate Experience by Comparison. 9 2. Gary Weiner's Proposed Rates Correspond to Rates Applicable to an 10 Experienced Mediator, the Parties Would be Paying for Service and Experience they Do Not Need. 11 3. Gary Weiner's Locality Does Not Provide an Advantage to the Parties. 12 4, The Delay in Filing is Not Prejudicial — Counsel Objected the Next Day — and 13 The Court Should Exercise its Discretion to Consider Linda Pond as Referee. 14 5. Defendants' Proposed Nominee Does Not Indicate Willingness to Be Paid From 15 Escrow As Linda Pond Has. 16 DISCUSSION 17 1. Gary Weiner Does not Have a DRE Issued License, and Does not Possess 18 Practical Rea] Estate Experience by Comparison. 19 As compared to Linda Pond, the Defendants’ proposed referee has limited real estate 20 || experience with the marketing and sale of real property — and is not a Department of Real Estate 21 || Licensee. Instead, the Defendants' proposed referee is primarily a mediator. 22 Although the proposed referee includes experience on multiple arbitration and mediation 23 || panels, including for the California Association of Realtors, there is a significant difference 24 || between assessing the legal merits of a case and having practical first-hand knowledge of the 25 || management, listing, marketing, and sale of real property. 26 Linda Pond is a broker and has been her entire professional career — in performing her 2 1 || regular professional functions she is responsible for managing other real estate licensees --- Gary 2 || Weiner is not. In the marketing and sale of real property, Linda Pond's professional experience 3 || far exceeds that of the Defendants’ proposed referee — as well as her ability to provide 4 || recommendations and substantively supported opinions about the marketing and sale of the 5 || property to the Court. 6 2. Gary Weiner's Proposed Rates Correspond to Rates Applicable to an Experienced Mediator, the Parties Would be Paying for Service and 7 Experience they Do Not Need. 8 Quantitatively, the Defendants’ proposed referee would be more expensive on account of 9 || mediation experience, rather than experience as a referee or by virtue of experience performing 10 || the functions and duties of a person licensed by the California Department of Real Estate. 11 The additional hourly rate charged by Gary Weiner due to his experience as a mediator 12 || would not result in an added benefit to the Parties, as compared to the lifetime experience of 13 || Linda Pond as a real estate professional ~ who incidentally charges less per hour. (e.g., Gary 14 || Weiner proposes the rate of $525/hr, versus Linda Pond proposed rate of $425/hr). 15 3. Gary Weiner's Locality Does Not Provide An Advantage to the Parties. 16 The referee ultimately appointed by the Court will not need to be present in Sonoma 17 || County, for among other reasons (1) the referee will retain a local real estate agent, and (2) even 18 || filing and appearances in the Court are and have been remote. There is no substantive return on 19 || investment for selecting a local licensed attorney vs. a professional in the real estate industry to 20 || manage the listing and sale such as Linda Pond would be. 21 4. The Delay in Filing is Not Prejudicial — Counsel Objected the Next Day — and The Court Should Exercise its Discretion to Consider Linda Pond as 22 Referee. 23 Linda Pond's decades of experience in real estate provide a superior base knowledge from 24 || which to guide the management and sale of the property at issue and make substantive 25 || recommendations to the Court. 26 Although Defendants’ object that Linda's speciality is ranches and wineries, the 3 1 || Defendants overlook that the subject property is adjacent to a winery and is situated in wine 2 || country — and Linda Pond’s experience with potential buyers in this region can provide a 3 || substantial benefit to the Parties. 4 5. Defendants' Proposed Nominee Does Not Indicate Willingness to Be Paid 5 From Escrow As Linda Pond Has. 6 Linda Pond indicated she could be paid out of escrow (Decl. LP, 13); the Defendants' 7 || proposed nominee made no such specification. Administratively, the payment of a referee from 8 || escrow streamlines and simplifies the process from the Parties' and the Court’s perspective, and is 9 || an additional factor making her a comparatively advantageous selection over Defendants’ 10 || selection. 11 CONCLUSION 12 The Court and Parties would benefit from a real estate professional as a referee — 13 || particularly one who has experience in ranch and winery sales. The Defendant's proposed 14 || referee is a mediator, and does not possess the real estate substantive knowledge as Linda Pond 15 || would provide. 16 The Plaintiff objects to the Defendants’ selection on the foregoing basis, and respectfully 17 || submits that the Court should select Linda Pond as a referee for her distinguished and 18 || comparatively superior ability to guide the real estate transaction at issue. Linda Pond is also 19 || less expensive, and provides a superior bond. 20 Respectfully Submitted, 21 Attorne i state Group, APC | 23 || Dated:Ah (é O27 Ne Ls. _ (] Grégory P. Wayland, Esq. 24 , a or cy for Plaintii 3s | fp sa \ 4 era / 4