Preview
1 David W. Berry, Esq. (SBN 180995)
Elizabeth A. Fritzinger, Esq. (SBN 283739)
2 Monica J. Lehre, Esq. (SBN 329046)
William R. LaBarge, Esq. (SBN 329713)
3 BERRY & FRITZINGER, P.C.
3550 Round Barn Blvd., Suite 312
4 Santa Rosa, CA 95403
Telephone: (707) 800-0550
5 Facsimile: (707) 800-0551
david@berryfritzlaw.com
6 elizabeth@berryfritzlaw.com
monica@berryfritzlaw.com
7 william@berryfritzlaw.com
8 Edward B. McCutchan, Esq. (SBN 119376)
SUNDERLAND MCCUTCHAN, LLP
9 1083 Vine Street, Suite 907
Healdsburg, CA 95448
10 Telephone: (707) 433-0377
Facsimile: (707) 433-0379
11 emccutchan@sunmclaw.com
12 Attorneys for Defendants
LOUIS M. FOPPIANO, et al.
Telephone: (707) 800-0550 Facsimile (707) 800-0551
13
3550 Round Barn Blvd., Suite 312
14 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SONOMA
B E R RY & F R I T Z I N G E R , P . C .
15
16 SUSAN FOPPIANO VALERA, an Case No. SCV-269355
individual,
17 Plaintiff, Assigned for All Purposes to Dept. 18
Hon. Christopher Honigsberg
18 vs.
MEMORANDUM OF POINTS AND
19 LOUIS M. FOPPIANO, an individual and AUTHORITIES IN SUPPORT OF
as Trustee of The Helaine Noreen DEFENDANTS’ PETITION FOR
20 Foppiano and Louis Michael Foppiano INSTRUCTIONS TO REFEREE
1997 Trust dated December 23, 1997,
21 [Code Civ. Proc. § 873.070]
HELAINE N. FOPPIANO, an individual
and as Trustee of The Helaine Noreen
22 Date:
Foppiano and Louis Michael Foppiano Time:
1997 Trust dated December 23, 1997,
23 Dept.: 18
PAUL FOPPIANO, an individual, GINA
M. HOCKER, an individual and as Trustee
24 Action Filed: Oct. 1, 2021
of the Gina Marie Hocker Revocable Trust Trial Date: None Set
dated September 25, 2015, all persons
25 unknown claiming any interest in the
property, and DOES 1 - 20,
26
Defendants.
27
28
-1-
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES
1 Pursuant to Code of Civil Procedure § 873.070, Defendants Louis M. Foppiano, an individual
2 and as Trustee of The Helaine Noreen Foppiano and Louis Michael Foppiano 1997 Trust dated
3 December 23, 1997, Helaine N. Foppiano, an individual and as Trustee of The Helaine Noreen
4 Foppiano and Louis Michael Foppiano 1997 Trust dated December 23, 1997, Paul Foppiano, an
5 individual, Gina M. Hocker, an individual and as Trustee of the Gina Marie Hocker Revocable
6 Trust dated September 25, 2015 (collectively, the “Defendants”) hereby submits this Petition for
7 Instructions to Referee (the “Petition”). This Petition is submitted because Plaintiff Susan
8 Foppiano Valera has failed to meet and confer with Defendants and the Court appointed referee
9 regarding necessary instructions to the referee. The Defendants seek the Court’s guidance and
10 order regarding statutorily required instructions to the referee.
11 I. BACKGROUND
12 1. Court Orders Partition By Sale & Finds Ownership Interests of Subject Property.
Telephone: (707) 800-0550 Facsimile (707) 800-0551
13 On October 31, 2022, the Court entered an order (1) granting interlocutory adjudication
3550 Round Barn Blvd., Suite 312
14 of plaintiff’s cause of action for partition by sale of the subject property, commonly known as
B E R RY & F R I T Z I N G E R , P . C .
15 12781 Old Redwood Highway, Healdsburg, California (the “Subject Property”); (2) finding the
16 ownership interests of the Subject Property to be partitioned by sale are as follows:
17 1. Susan Foppiano Valera owns 33.3% interest;
18 2. Paul Foppiano owns 20.8% interest;
19 3. Gina Hocker owns 12.5% interest; and
20 4. Louis Foppiano and Helaine Foppiano jointly own, as trustees, 33.4 % interest;
21 and (3) bifurcating the issue of appointment of a partition referee. (Request for Judicial Notice
22 (“RJN”), Exhibit A).
23 2. Court Appoints Referee & Orders Referee to Post Bond; To Date No Bond Posted.
24 On April 5, 2023, the Court appointed Linda Pond (“Referee” or “Ms. Pond”) as the
25 referee. The Court further required Ms. Pond to post a bond and, at the conclusion of the sale of
26 the Subject Property, required Ms. Pond to file a final account and request discharge. (RJN,
27 Exhibit B). Approximately six weeks have passed since the Court entered the order appointing
28 Ms. Pond as referee and the posting of the bond. (Declaration of Elizabeth Fritzinger
-2-
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES
1 (“Fritzinger Decl.”), ¶2). As of the date of this filing, Defendants’ counsel is unaware of Ms.
2 Pond posting any bond. (Fritzinger Decl. ¶2).
3 3. Since Court Appointed Referee, Defendants Have Attempted to Meet and Confer
4 With Plaintiff’s Counsel Regarding Instructions To Referee.
5 Defendants’ counsel has attempted to meet and confer with Plaintiff’s counsel regarding
6 stipulating to certain instructions to the Referee, such as the means and method of listing the
7 Subject Property for sale, obtaining an appraisal to help determine the list price, how the costs of
8 selling the Subject Property will be initially funded, and other related matters. (Fritzinger Decl.
9 ¶3, Exhibit A). It was the Defendants’ goal that the parties could meet and confer on these issues
10 and present a joint stipulation to the Court in order for the Court to further instruct the referee.
11 (Fritzinger Decl. ¶3). As of the filing of this petition, Plaintiff’s counsel and Ms. Pond have not
12 responded to Defendants’ meet and confer requests. (Fritzinger Decl. ¶3).
Telephone: (707) 800-0550 Facsimile (707) 800-0551
13 4. Defendants Have Learned That The Referee Entered Into a Third Party Contract
3550 Round Barn Blvd., Suite 312
14 Without Court Approval.
B E R RY & F R I T Z I N G E R , P . C .
15 Approximately two weeks ago, Defendants learned that Ms. Pond had purportedly
16 retained a real estate broker and entered into a contract with the broker to list and sell the Subject
17 Property. Defendants have not seen this purported contract, nor has it been approved by the
18 Court. (Fritzinger Decl. ¶4). Defendants have mentioned their concern about the Referee
19 entering into third party contracts without Court approval, but to date have not received any
20 response regarding this concern. (Fritzinger Decl. ¶4).
21 II. LEGAL ANALYSIS
22 1. Any Party On Notice Motion May Petition The Court For Instructions To The
23 Referee.
24 Pursuant to Code of Civil Procedure § 873.070, the referee or any party may, on noticed
25 motion, petition the court for instructions concerning the referee's duties under this title (i.e. Title
26 10.5 Partition of Real and Personal Property). Here, Defendants submit this Petition in order for
27 the Court to provide statutorily required instructions to the Referee in order to sell the Subject
28 Property.
-3-
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES
1 2. Referee’s Authority To Enter Into Third Party Contracts Is Limited; Must Seek
2 Court Approval To Do So.
3 A referee, acting alone, has no authority to engage the services of third persons for his or
4 her assistance. (Code of Civil Procedure § 873.110, Law Revision Commission Comment
5 following the section). Subject to the limitations of the provisions regarding contracts of a
6 referee, the court may authorize or approve contracts of the referee for the services and expenses
7 of surveyors, engineers, appraisers, attorneys, real estate brokers, auctioneers, and others; allow
8 and direct payment of or reject claims under such contracts; and provide for the date of
9 commencement of any lien provided by law or contract for such claims. (Id.). Here, the Court
10 has not approved any third party contract and must approve the contract before Ms. Pond has the
11 authority to enter into any third party contract.
12 3. Referee’s Authority To Conduct Sale Of Subject Property Is Limited; Must Seek
Telephone: (707) 800-0550 Facsimile (707) 800-0551
13 Agreement of Parties As To Sales Procedures.
3550 Round Barn Blvd., Suite 312
14 The referee appointed by the court to make a sale of the property shall sell the property in
B E R RY & F R I T Z I N G E R , P . C .
15 the manner and following the procedures provided in this chapter (i.e., Chapter 6 Sale of
16 Property)(Code of Civil Procedure § 873.510). Chapter 6, Sale of Property, includes in pertinent
17 part that “[N]otwithstanding any other provision of this title, the court shall order sale by such
18 methods and upon such terms as are expressly agreed to in writing by all the parties to the
19 action. (Code of Civil Procedure § 873.600)(emphasis added). Moreover, to the extent the
20 parties cannot agree on the manner and terms of the sale, then the court may refer the manner,
21 terms, and conditions of sale to the referee for recommendation but shall not approve the
22 referee’s report except following a hearing upon a notice motion. (Code of Civil Procedure §
23 873.610). Here, despite Defendants’ efforts to meet and confer on instructions regarding the
24 means and methods of selling the Subject Property, there has been no response from the Plaintiff
25 or Referee nor an order from the Court regarding the sales procedure.
26 III. INSTRUCTIONS REQUESTED BY DEFENDANTS
27 Pursuant to the legal authorities cited and discussed above, Defendants respectfully
28 request that the Court instruct the Referee by ordering the following:
-4-
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES
1 A. Referee’s Bond: The Referee’s bond shall be filed with the Court and served on
2 the parties to this action no later than ten (10) days after the Notice of Entry of the Court’s Order
3 granting this Petition. The Referee’s grant of office and commencement of duties shall start only
4 upon the Referee’s filing of the bond and service of the bond upon all parties.
5 B. Contracts of Third Persons: Prior to executing any third party contracts for
6 services, including but not limited to, the services of a real estate broker or agent, the Referee
7 will first present the contract to the Plaintiff and Defendants for approval. If the parties approve
8 the contract, then the parties will submit a joint stipulation and order to the Court for its review
9 and approval. If the parties are unable to agree on whether the Referee should enter into the
10 contract, then any party can submit the matter to the Court for further instruction and order.
11 C. Sales Procedures: The referee is instructed to conduct the sale of the Subject
12 Property as follows:
Telephone: (707) 800-0550 Facsimile (707) 800-0551
13 1. Appraisal: The Referee shall employ a licensed California appraiser to
3550 Round Barn Blvd., Suite 312
14 appraise the Subject Property. Prior to hiring the appraiser, the Referee shall present the appraisal
B E R RY & F R I T Z I N G E R , P . C .
15 contract to the Plaintiff and Defendants for approval. If the parties are unable to agree on
16 whether the Referee should enter into the appraisal contract, then any party can submit the matter
17 to the Court for further instruction and order. Once the appraisal is complete, a copy of the
18 appraisal shall be served to all parties before the Subject Property is listed for sale.
19 2. Listing Sale Price: Within fourteen (14) days of receiving the appraisal,
20 the parties will meet and confer and agree upon a listing sales price for the Subject Property. If
21 the parties are unable to agree upon a listing price, then any party can submit the matter to the
22 Court for further instruction and order.
23 3. Encumbrances: The Referee shall employ a California title company to
24 prepare a Preliminary Title Report before the Referee lists the Subject Property for sale and serve
25 the Preliminary Title Report on all Parties to this action. The Referee acknowledges and affirms
26 that if either party has encumbered their interest in the Subject Property (either by way of
27 voluntary encumbrances such as a Deed of Trust or involuntary encumbrances such as a
28 judgment or tax lien), the removal of the encumbrance shall be paid from the sale proceeds
-5-
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES
1 through escrow and shall be deducted from the share of the net proceeds belonging to the party
2 who is responsible for the encumbrance.
3 4. Listing of the Subject Property: The Subject Property shall be listed for
4 sale pursuant to the terms of a California Association of Realtors (“CAR”) written listing
5 agreement. ("Listing Agreement") as follows: (a) the Listing Agreement shall contain a provision
6 that the broker's commission shall not exceed 5%, and (b) the Listing Agreement shall be for a
7 period no longer than one year. If the Subject Property is not under contract for sale within the
8 initial listing period set forth above, upon the expiration of the Listing Agreement, then the
9 Referee shall enter into a new Listing Agreement upon approval of the parties. If the parties
10 cannot agree on the terms of a new Listing Agreement, then any party may submit the issue to
11 the Court for further instruction and order.
12 5. Statutory Real Estate Disclosures: Prior to listing the Subject Property
Telephone: (707) 800-0550 Facsimile (707) 800-0551
13 for sale, the Referee will meet and confer with the parties regarding disclosures so that the
3550 Round Barn Blvd., Suite 312
14 parties and Referee can disclose to potential buyers all material facts known to the parties
B E R RY & F R I T Z I N G E R , P . C .
15 affecting the value or desirability of the Subject Property.
16 6. Subject Property Shall Be Sold “AS IS”: The Referee is on notice that
17 there are multiple issues with the Subject Property, such as issues with ingress/egress, water (no
18 well), and septic (unlocated septic system either on or near the Subject Property) and the Subject
19 Property shall not be improved for the purpose of sale.
20 7. Sales Expenses Incurred by Referee: To the extent the Referee incurs
21 expenses related to the sale of the Subject Property, then these expenses shall be paid by one or
22 more of the following methods: (1) from the proceeds of the sale of the Subject Property; (2) by
23 loans made or obtained by the Referee for this purpose; or (3) by direct payment by the parties to
24 the person or company providing services to the Referee. No matter which method of payment is
25 made, all such reasonable expenses shall be paid or reimbursed by the Referee from the sale
26 proceeds of the sale of the Subject Property prior to any other distributions to the owners of the
27 Subject Property.
28 ///
-6-
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES
1 8. Notice of Sale: The Referee shall provide notice of the sale of the Subject
2 Property in the manner provided by Code of Civil Procedure §§ 873.640 and 873.650.
3 D. Consummation of Sale: The Referee shall abide by the procedures for the
4 consummation of any sale in the manner provided by Code of Civil Procedure §§873.710 to
5 873.790.
6 IV. CONCLUSION
7 For the reasons stated forth herein, Defendants respectfully request that the Court grant
8 their Petition for Instructions.
9 Dated: 05/22/2023 BERRY & FRITZINGER, P.C.
10
11 By:___________________________
12 Elizabeth A. Fritzinger, Esq.
Attorney for Defendants
Telephone: (707) 800-0550 Facsimile (707) 800-0551
13
3550 Round Barn Blvd., Suite 312
14
B E R RY & F R I T Z I N G E R , P . C .
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-7-
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES
Preview
1 David W. Berry, Esq. (SBN 180995) Elizabeth A. Fritzinger, Esq. (SBN 283739) 2 Monica J. Lehre, Esq. (SBN 329046) William R. LaBarge, Esq. (SBN 329713) 3 BERRY & FRITZINGER, P.C. 3550 Round Barn Blvd., Suite 312 4 Santa Rosa, CA 95403 Telephone: (707) 800-0550 5 Facsimile: (707) 800-0551 david@berryfritzlaw.com 6 elizabeth@berryfritzlaw.com monica@berryfritzlaw.com 7 william@berryfritzlaw.com 8 Edward B. McCutchan, Esq. (SBN 119376) SUNDERLAND MCCUTCHAN, LLP 9 1083 Vine Street, Suite 907 Healdsburg, CA 95448 10 Telephone: (707) 433-0377 Facsimile: (707) 433-0379 11 emccutchan@sunmclaw.com 12 Attorneys for Defendants LOUIS M. FOPPIANO, et al. Telephone: (707) 800-0550 Facsimile (707) 800-0551 13 3550 Round Barn Blvd., Suite 312 14 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SONOMA B E R RY & F R I T Z I N G E R , P . C . 15 16 SUSAN FOPPIANO VALERA, an Case No. SCV-269355 individual, 17 Plaintiff, Assigned for All Purposes to Dept. 18 Hon. Christopher Honigsberg 18 vs. MEMORANDUM OF POINTS AND 19 LOUIS M. FOPPIANO, an individual and AUTHORITIES IN SUPPORT OF as Trustee of The Helaine Noreen DEFENDANTS’ PETITION FOR 20 Foppiano and Louis Michael Foppiano INSTRUCTIONS TO REFEREE 1997 Trust dated December 23, 1997, 21 [Code Civ. Proc. § 873.070] HELAINE N. FOPPIANO, an individual and as Trustee of The Helaine Noreen 22 Date: Foppiano and Louis Michael Foppiano Time: 1997 Trust dated December 23, 1997, 23 Dept.: 18 PAUL FOPPIANO, an individual, GINA M. HOCKER, an individual and as Trustee 24 Action Filed: Oct. 1, 2021 of the Gina Marie Hocker Revocable Trust Trial Date: None Set dated September 25, 2015, all persons 25 unknown claiming any interest in the property, and DOES 1 - 20, 26 Defendants. 27 28 -1- DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES 1 Pursuant to Code of Civil Procedure § 873.070, Defendants Louis M. Foppiano, an individual 2 and as Trustee of The Helaine Noreen Foppiano and Louis Michael Foppiano 1997 Trust dated 3 December 23, 1997, Helaine N. Foppiano, an individual and as Trustee of The Helaine Noreen 4 Foppiano and Louis Michael Foppiano 1997 Trust dated December 23, 1997, Paul Foppiano, an 5 individual, Gina M. Hocker, an individual and as Trustee of the Gina Marie Hocker Revocable 6 Trust dated September 25, 2015 (collectively, the “Defendants”) hereby submits this Petition for 7 Instructions to Referee (the “Petition”). This Petition is submitted because Plaintiff Susan 8 Foppiano Valera has failed to meet and confer with Defendants and the Court appointed referee 9 regarding necessary instructions to the referee. The Defendants seek the Court’s guidance and 10 order regarding statutorily required instructions to the referee. 11 I. BACKGROUND 12 1. Court Orders Partition By Sale & Finds Ownership Interests of Subject Property. Telephone: (707) 800-0550 Facsimile (707) 800-0551 13 On October 31, 2022, the Court entered an order (1) granting interlocutory adjudication 3550 Round Barn Blvd., Suite 312 14 of plaintiff’s cause of action for partition by sale of the subject property, commonly known as B E R RY & F R I T Z I N G E R , P . C . 15 12781 Old Redwood Highway, Healdsburg, California (the “Subject Property”); (2) finding the 16 ownership interests of the Subject Property to be partitioned by sale are as follows: 17 1. Susan Foppiano Valera owns 33.3% interest; 18 2. Paul Foppiano owns 20.8% interest; 19 3. Gina Hocker owns 12.5% interest; and 20 4. Louis Foppiano and Helaine Foppiano jointly own, as trustees, 33.4 % interest; 21 and (3) bifurcating the issue of appointment of a partition referee. (Request for Judicial Notice 22 (“RJN”), Exhibit A). 23 2. Court Appoints Referee & Orders Referee to Post Bond; To Date No Bond Posted. 24 On April 5, 2023, the Court appointed Linda Pond (“Referee” or “Ms. Pond”) as the 25 referee. The Court further required Ms. Pond to post a bond and, at the conclusion of the sale of 26 the Subject Property, required Ms. Pond to file a final account and request discharge. (RJN, 27 Exhibit B). Approximately six weeks have passed since the Court entered the order appointing 28 Ms. Pond as referee and the posting of the bond. (Declaration of Elizabeth Fritzinger -2- DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES 1 (“Fritzinger Decl.”), ¶2). As of the date of this filing, Defendants’ counsel is unaware of Ms. 2 Pond posting any bond. (Fritzinger Decl. ¶2). 3 3. Since Court Appointed Referee, Defendants Have Attempted to Meet and Confer 4 With Plaintiff’s Counsel Regarding Instructions To Referee. 5 Defendants’ counsel has attempted to meet and confer with Plaintiff’s counsel regarding 6 stipulating to certain instructions to the Referee, such as the means and method of listing the 7 Subject Property for sale, obtaining an appraisal to help determine the list price, how the costs of 8 selling the Subject Property will be initially funded, and other related matters. (Fritzinger Decl. 9 ¶3, Exhibit A). It was the Defendants’ goal that the parties could meet and confer on these issues 10 and present a joint stipulation to the Court in order for the Court to further instruct the referee. 11 (Fritzinger Decl. ¶3). As of the filing of this petition, Plaintiff’s counsel and Ms. Pond have not 12 responded to Defendants’ meet and confer requests. (Fritzinger Decl. ¶3). Telephone: (707) 800-0550 Facsimile (707) 800-0551 13 4. Defendants Have Learned That The Referee Entered Into a Third Party Contract 3550 Round Barn Blvd., Suite 312 14 Without Court Approval. B E R RY & F R I T Z I N G E R , P . C . 15 Approximately two weeks ago, Defendants learned that Ms. Pond had purportedly 16 retained a real estate broker and entered into a contract with the broker to list and sell the Subject 17 Property. Defendants have not seen this purported contract, nor has it been approved by the 18 Court. (Fritzinger Decl. ¶4). Defendants have mentioned their concern about the Referee 19 entering into third party contracts without Court approval, but to date have not received any 20 response regarding this concern. (Fritzinger Decl. ¶4). 21 II. LEGAL ANALYSIS 22 1. Any Party On Notice Motion May Petition The Court For Instructions To The 23 Referee. 24 Pursuant to Code of Civil Procedure § 873.070, the referee or any party may, on noticed 25 motion, petition the court for instructions concerning the referee's duties under this title (i.e. Title 26 10.5 Partition of Real and Personal Property). Here, Defendants submit this Petition in order for 27 the Court to provide statutorily required instructions to the Referee in order to sell the Subject 28 Property. -3- DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES 1 2. Referee’s Authority To Enter Into Third Party Contracts Is Limited; Must Seek 2 Court Approval To Do So. 3 A referee, acting alone, has no authority to engage the services of third persons for his or 4 her assistance. (Code of Civil Procedure § 873.110, Law Revision Commission Comment 5 following the section). Subject to the limitations of the provisions regarding contracts of a 6 referee, the court may authorize or approve contracts of the referee for the services and expenses 7 of surveyors, engineers, appraisers, attorneys, real estate brokers, auctioneers, and others; allow 8 and direct payment of or reject claims under such contracts; and provide for the date of 9 commencement of any lien provided by law or contract for such claims. (Id.). Here, the Court 10 has not approved any third party contract and must approve the contract before Ms. Pond has the 11 authority to enter into any third party contract. 12 3. Referee’s Authority To Conduct Sale Of Subject Property Is Limited; Must Seek Telephone: (707) 800-0550 Facsimile (707) 800-0551 13 Agreement of Parties As To Sales Procedures. 3550 Round Barn Blvd., Suite 312 14 The referee appointed by the court to make a sale of the property shall sell the property in B E R RY & F R I T Z I N G E R , P . C . 15 the manner and following the procedures provided in this chapter (i.e., Chapter 6 Sale of 16 Property)(Code of Civil Procedure § 873.510). Chapter 6, Sale of Property, includes in pertinent 17 part that “[N]otwithstanding any other provision of this title, the court shall order sale by such 18 methods and upon such terms as are expressly agreed to in writing by all the parties to the 19 action. (Code of Civil Procedure § 873.600)(emphasis added). Moreover, to the extent the 20 parties cannot agree on the manner and terms of the sale, then the court may refer the manner, 21 terms, and conditions of sale to the referee for recommendation but shall not approve the 22 referee’s report except following a hearing upon a notice motion. (Code of Civil Procedure § 23 873.610). Here, despite Defendants’ efforts to meet and confer on instructions regarding the 24 means and methods of selling the Subject Property, there has been no response from the Plaintiff 25 or Referee nor an order from the Court regarding the sales procedure. 26 III. INSTRUCTIONS REQUESTED BY DEFENDANTS 27 Pursuant to the legal authorities cited and discussed above, Defendants respectfully 28 request that the Court instruct the Referee by ordering the following: -4- DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES 1 A. Referee’s Bond: The Referee’s bond shall be filed with the Court and served on 2 the parties to this action no later than ten (10) days after the Notice of Entry of the Court’s Order 3 granting this Petition. The Referee’s grant of office and commencement of duties shall start only 4 upon the Referee’s filing of the bond and service of the bond upon all parties. 5 B. Contracts of Third Persons: Prior to executing any third party contracts for 6 services, including but not limited to, the services of a real estate broker or agent, the Referee 7 will first present the contract to the Plaintiff and Defendants for approval. If the parties approve 8 the contract, then the parties will submit a joint stipulation and order to the Court for its review 9 and approval. If the parties are unable to agree on whether the Referee should enter into the 10 contract, then any party can submit the matter to the Court for further instruction and order. 11 C. Sales Procedures: The referee is instructed to conduct the sale of the Subject 12 Property as follows: Telephone: (707) 800-0550 Facsimile (707) 800-0551 13 1. Appraisal: The Referee shall employ a licensed California appraiser to 3550 Round Barn Blvd., Suite 312 14 appraise the Subject Property. Prior to hiring the appraiser, the Referee shall present the appraisal B E R RY & F R I T Z I N G E R , P . C . 15 contract to the Plaintiff and Defendants for approval. If the parties are unable to agree on 16 whether the Referee should enter into the appraisal contract, then any party can submit the matter 17 to the Court for further instruction and order. Once the appraisal is complete, a copy of the 18 appraisal shall be served to all parties before the Subject Property is listed for sale. 19 2. Listing Sale Price: Within fourteen (14) days of receiving the appraisal, 20 the parties will meet and confer and agree upon a listing sales price for the Subject Property. If 21 the parties are unable to agree upon a listing price, then any party can submit the matter to the 22 Court for further instruction and order. 23 3. Encumbrances: The Referee shall employ a California title company to 24 prepare a Preliminary Title Report before the Referee lists the Subject Property for sale and serve 25 the Preliminary Title Report on all Parties to this action. The Referee acknowledges and affirms 26 that if either party has encumbered their interest in the Subject Property (either by way of 27 voluntary encumbrances such as a Deed of Trust or involuntary encumbrances such as a 28 judgment or tax lien), the removal of the encumbrance shall be paid from the sale proceeds -5- DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES 1 through escrow and shall be deducted from the share of the net proceeds belonging to the party 2 who is responsible for the encumbrance. 3 4. Listing of the Subject Property: The Subject Property shall be listed for 4 sale pursuant to the terms of a California Association of Realtors (“CAR”) written listing 5 agreement. ("Listing Agreement") as follows: (a) the Listing Agreement shall contain a provision 6 that the broker's commission shall not exceed 5%, and (b) the Listing Agreement shall be for a 7 period no longer than one year. If the Subject Property is not under contract for sale within the 8 initial listing period set forth above, upon the expiration of the Listing Agreement, then the 9 Referee shall enter into a new Listing Agreement upon approval of the parties. If the parties 10 cannot agree on the terms of a new Listing Agreement, then any party may submit the issue to 11 the Court for further instruction and order. 12 5. Statutory Real Estate Disclosures: Prior to listing the Subject Property Telephone: (707) 800-0550 Facsimile (707) 800-0551 13 for sale, the Referee will meet and confer with the parties regarding disclosures so that the 3550 Round Barn Blvd., Suite 312 14 parties and Referee can disclose to potential buyers all material facts known to the parties B E R RY & F R I T Z I N G E R , P . C . 15 affecting the value or desirability of the Subject Property. 16 6. Subject Property Shall Be Sold “AS IS”: The Referee is on notice that 17 there are multiple issues with the Subject Property, such as issues with ingress/egress, water (no 18 well), and septic (unlocated septic system either on or near the Subject Property) and the Subject 19 Property shall not be improved for the purpose of sale. 20 7. Sales Expenses Incurred by Referee: To the extent the Referee incurs 21 expenses related to the sale of the Subject Property, then these expenses shall be paid by one or 22 more of the following methods: (1) from the proceeds of the sale of the Subject Property; (2) by 23 loans made or obtained by the Referee for this purpose; or (3) by direct payment by the parties to 24 the person or company providing services to the Referee. No matter which method of payment is 25 made, all such reasonable expenses shall be paid or reimbursed by the Referee from the sale 26 proceeds of the sale of the Subject Property prior to any other distributions to the owners of the 27 Subject Property. 28 /// -6- DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES 1 8. Notice of Sale: The Referee shall provide notice of the sale of the Subject 2 Property in the manner provided by Code of Civil Procedure §§ 873.640 and 873.650. 3 D. Consummation of Sale: The Referee shall abide by the procedures for the 4 consummation of any sale in the manner provided by Code of Civil Procedure §§873.710 to 5 873.790. 6 IV. CONCLUSION 7 For the reasons stated forth herein, Defendants respectfully request that the Court grant 8 their Petition for Instructions. 9 Dated: 05/22/2023 BERRY & FRITZINGER, P.C. 10 11 By:___________________________ 12 Elizabeth A. Fritzinger, Esq. Attorney for Defendants Telephone: (707) 800-0550 Facsimile (707) 800-0551 13 3550 Round Barn Blvd., Suite 312 14 B E R RY & F R I T Z I N G E R , P . C . 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7- DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES