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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
Telephone: (707) 800-0550 Facsimile: (707) 800-0551
Facsimile: (707) 433-0379
11 emccutchan@sunmclaw.com
B E R RY & F R I T Z I N G E R , P . C .
12 Attorneys for Defendants
3550 Round Barn Blvd., Suite 312
LOUIS M. FOPPIANO, et al.
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14 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SONOMA
15 SUSAN FOPPIANO VALERA, an Case No. SCV-269355
individual,
16 Assigned for All Purposes to Dept. 18
Plaintiff, Hon. Christopher Honigsberg
17
vs. DECLARATION OF ELIZABETH A.
18 FRITZINGER IN SUPPORT OF
LOUIS M. FOPPIANO, an individual and DEFENDANTS' OPPOSITIONTO
19 as Trustee of The Helaine Noreen Foppiano PLAINTIFF’S EX PARTE APPLICATION
and Louis Michael Foppiano 1997 Trust TO REQUEST DEFENDANTS TO
20 dated December 23, 1997, HELAINE N. COOPERATE IN THE LISTING AND
FOPPIANO, an individual and as Trustee SALE OF PROPERTY AND FOR
21 of The Helaine Noreen Foppiano and Louis RELATED ORDERS FACILITATING THE
Michael Foppiano 1997 Trust dated PARTITION REFEREE’S ROLE
22 December 23, 1997, PAUL FOPPIANO, an
individual, GINA M. HOCKER, an DATE: June 08, 2023
23 individual and as Trustee of the Gina Marie TIME: 10:30 AM
Hocker Revocable Trust dated September DEPT.: 18
24 25, 2015, all persons unknown claiming
any interest in the property, and DOES Action Filed: Oct. 1, 2021
25 1 - 20, Trial Date: None Set
26 Defendants.
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DECLARATION OF ELIZABETH A. FRITZINGER IN SUPPORT OF DEFENDANTS' OPPOSITION
1 I, Elizabeth A. Fritzinger, Esq., hereby declare as follows:
2 1. I am an attorney duly licensed to practice law before all of the courts of the State
3 of California and am an attorney at Berry & Fritzinger, P.C., attorneys of record for Defendants.
4 I am over 18 years of age, have had substantial responsibility for the prosecution of this action,
5 and I am familiar with the papers and pleadings on file herein. I have personal knowledge of the
6 facts set forth in this Declaration and would testify competently thereto if called upon to do so.
7 2. Attached hereto as Exhibit “A” are true and correct copies of my May 10, 2023,
8 May 12, 2023, and May 15, 2023 emails to Plaintiff’s counsel and the Court appointed referee,
9 Linda Pond where I requested meeting and conferring to discuss instructions to Ms. Pond.
10 Plaintiff’s counsel never responded to my email requests to discuss instructions.
Telephone: (707) 800-0550 Facsimile: (707) 800-0551
11 3. After receiving no response from Plaintiff’s counsel, on behalf of Defendants, my
B E R RY & F R I T Z I N G E R , P . C .
12 office filed Defendants’ Petition for Instructions to Referee which is currently set for hearing on
3550 Round Barn Blvd., Suite 312
13 September 8, 2023. For the Court’s convenience, attached hereto as Exhibit “B” is a true and
14 correct copy of the Petition for Instructions on file with the Court.
15 4. Attached hereto as Exhibit “C” is a true and correct copy of my June 5, 2023 email
16 to Plaintiff’s counsel and the referee wherein I again requested that we meet and confer to come
17 up with a joint stipulation to submit to the Court for approval. Plaintiff’s counsel did not respond
18 to my request to discuss instructions. The sole reason I continued to send emails to Plaintiff’s
19 counsel and the referee is because Plaintiff’s counsel never responded to our requests regarding
20 instructions.
21 5. Plaintiff’s first response to my nearly month-long requests to meet and confer was
22 to send an ex parte notice on June 7, 2023. Attached hereto as Exhibit “D” is a true and correct
23 copy of the email sent to me on Wednesday, June 7, 2023, from Plaintiff’s counsel, noticing the
24 ex parte hearing.
25 6. Attached hereto as Exhibit “E” is a true and correct copy of my attempts to meet
26 and confer with Plaintiff’s counsel after he noticed me regarding the ex parte on June 7, 2023.
27 ///
28 ///
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DECLARATION OF ELIZABETH A. FRITZINGER IN SUPPORT OF DEFENDANTS' OPPOSITION
1 7. Attorney Don Winkle does not represent the Defendants as it relates to this
2 litigation.
3 I declare under penalty of perjury under the laws of the State of California that the
4 foregoing is true and correct.
5 Executed on June 7, 2023, at Santa Rosa, California.
6
7 __________________________
Elizabeth A. Fritzinger, Esq.
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Telephone: (707) 800-0550 Facsimile: (707) 800-0551
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B E R RY & F R I T Z I N G E R , P . C .
12
3550 Round Barn Blvd., Suite 312
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DECLARATION OF ELIZABETH A. FRITZINGER IN SUPPORT OF DEFENDANTS' OPPOSITION
EXHIBIT A
From: Elizabeth Fritzinger
To: GWayland@attorneysRE.com; lindapond.realestate@yahoo.com
Cc: Monica Lehre; Edward McCutchan
Subject: RE: Valera v. Foppiano, et. al.
Date: Monday, May 15, 2023 2:02:00 PM
Attachments: image001.png
Good Afternoon, Mr. Wayland.
I included Ms. Pond on this email so that she understands the parties request to meet and confer on
instructions to sell the property.
Do you have time early this week for a conference call to discuss instructions to Ms. Pond? We are
concerned that the property will soon be listed for sale, and we haven’t agreed on the mechanics of
the sale, opening bid price, or approval of any third-party contract, including the listing agent
contract, etc.
The Defendants respectfully request to meet and confer before any further action is taken on the
listing of the property.
Please let us know a few times that work for you, and we will schedule the call.
Elizabeth Fritzinger
Attorney
Berry & Fritzinger, P.C.
3550 Round Barn Blvd., Ste. 312
Santa Rosa, California 95403
Office (707) 800-0550
Direct (707) 800-0553
elizabeth@berryfritzlaw.com
The content of this message is confidential. If you have received it by mistake, please inform us by an email reply and then
delete the message. It is forbidden to copy, forward, or in any way reveal the contents of this message to anyone. The integrity
and security of this email cannot be guaranteed over the Internet. Therefore, the sender will not be held liable for any damage
caused by the message.
From: Elizabeth Fritzinger
Sent: Friday, May 12, 2023 2:20 PM
To: GWayland@attorneysRE.com
Cc: Monica Lehre ; Edward McCutchan
Subject: RE: Valera v. Foppiano, et. al.
Good afternoon, Mr. Wayland.
I am following up on my below email. Please let me know if any have any time early next week for a
phone call.
I would like us to agree on instructions to the referee as soon as possible.
Elizabeth Fritzinger
Attorney
Berry & Fritzinger, P.C.
3550 Round Barn Blvd., Ste. 312
Santa Rosa, California 95403
Office (707) 800-0550
Direct (707) 800-0553
elizabeth@berryfritzlaw.com
The content of this message is confidential. If you have received it by mistake, please inform us by an email reply and then
delete the message. It is forbidden to copy, forward, or in any way reveal the contents of this message to anyone. The integrity
and security of this email cannot be guaranteed over the Internet. Therefore, the sender will not be held liable for any damage
caused by the message.
From: Elizabeth Fritzinger
Sent: Wednesday, May 10, 2023 4:00 PM
To: GWayland@attorneysRE.com
Cc: Monica Lehre ; Edward McCutchan
Subject: Valera v. Foppiano, et. al.
Importance: High
Mr. Wayland:
Please allow me to introduce myself. My name is Elizabeth Fritzinger, and I am a partner at Berry &
Fritzinger, P.C. located in Santa Rosa, CA. Berry & Fritzinger, P.C. has been retained to represent the
interests of the defendants in Valera v. Foppiano, Sonoma County Superior Court case no. SCV-
269355 as co-counsel with Edward McCutchan. I’ve met with Ed, and he has brought me up to speed
on the case. I would like to meet and confer with you as soon as possible to get your thoughts
regarding working together on stipulated instructions to the court-appointed referee, Linda Pond, so
that the property at issue in this case, namely 12780 Old Redwood Hwy, Healdsburg, CA (the
“Property”), may be sold per the court order.
We’d like to specifically discuss the following:
1. Listing of the Property. We understand that Ms. Pond has retained real estate agent Paula
Gold-Nocella to list and sell the Property (although we find no current MLS listing for the
Property). The Property should be appraised before it is listed, and we should agree on the
offer price.
2. Appraisal. The Property should be appraised by a mutually agreed upon appraiser. There are
multiple issues with the house. To name a few: I understand that there is no ability to hook up
to water and sewer systems from the City of Healdsburg and currently no well water or septic
system for the residence. There may be hazards within the house such as lead paint (based on
the age of the house) and possibly asbestos issues. The residence is very close to Old
Redwood Highway so that noise and dust from traffic may reduce the value of the property.
Only an appraiser would be able to take into account the unique problems with the Property
and estimate FMV for the parties’ consideration.
3. The Costs of Selling the Property. Although the court order appointing the referee states her
hourly rate, and states in her declaration that she will be paid from the proceeds upon the
sale of the Property, it does not state how the costs to sell the Property are to be allocated
and paid-up front.
4. Selling the Property. We should discuss the logistics of selling the Property, such as how we
will reach an agreed upon sale price, acceptance of an offer, terms of the sale, etc.
We’d like to avoid petitioning the court for instructions. My hope is that a stipulation among the
parties that addresses these issues, and any other issues that arise, will avoid involving the court in
this process.
Please let me know if you have time this week or next week for a conference call.
I look forward to hearing from you.
Elizabeth Fritzinger
Attorney
Berry & Fritzinger, P.C.
3550 Round Barn Blvd., Ste. 312
Santa Rosa, California 95403
Office (707) 800-0550
Direct (707) 800-0553
elizabeth@berryfritzlaw.com
The content of this message is confidential. If you have received it by mistake, please inform us by an email reply and then
delete the message. It is forbidden to copy, forward, or in any way reveal the contents of this message to anyone. The integrity
and security of this email cannot be guaranteed over the Internet. Therefore, the sender will not be held liable for any damage
caused by the message.
EXHIBIT B
1 David W. Berry, Esq. (SBN 180995) ELECTRONICALLY FILED
Elizabeth A. Fritzinger, Esq. (SBN 283739) Superior Court of California
2 Monica J. Lehre, Esq. (SBN 329046) County of Sonoma
William R. LaBarge, Esq. (SBN 329713) 5/22/2023 4:41 PM
3 BERRY & FRITZINGER, P.C. By: Lorena Deloza, Deputy Clerk
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
T e l e p h o n e : ( 7 0 7 ) 8 0 0 - 0 5 5 0 Fa c s i m i l e : ( 7 0 7 ) 8 0 0 - 0 5 5 1
Facsimile: (707) 433-0379
11 emccutchan@sunmclaw.com
B E R RY & F R I T Z I N G E R , P . C .
3550 Round Barn Blvd., Suite 312
12 Attorneys for Defendants
LOUIS M. FOPPIANO, et al.
13
14 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SONOMA
15 SUSAN FOPPIANO VALERA, an Case No. SCV-269355
individual,
16 Assigned for All Purposes to Dept. 18
Plaintiff, Hon. Christopher Honigsberg
17
vs. NOTICE OF DEFENDANTS' PETITION
18 FOR INSTRUCTIONS TO REFEREE
LOUIS M. FOPPIANO, an individual and
19 as Trustee of The Helaine Noreen Foppiano
and Louis Michael Foppiano 1997 Trust Date: 9/8/23
20 dated December 23, 1997, HELAINE N. Time: 3:00
FOPPIANO, an individual and as Trustee Dept. 18
21 of The Helaine Noreen Foppiano and Louis
Michael Foppiano 1997 Trust dated Action Filed: Oct. 1, 2021
22 December 23, 1997, PAUL FOPPIANO, an Trial Date: None Set
individual, GINA M. HOCKER, an
23 individual and as Trustee of the Gina Marie
Hocker Revocable Trust dated September
24 25, 2015, all persons unknown claiming
any interest in the property, and DOES
25 1 - 20,
26 Defendants.
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NOTICE OF DEFENDANTS' PETITION FOR INSTRUCTIONS TO REFEREE
1 TO: Plaintiff Susan Foppiano Velera, Plaintiff’s attorney, Attorneys Real Estate Group, APC and
2 Referee Linda Pond
3 You and each of you will please take notice that at the above-stated date, time, and
4 location Defendants LOUIS M. FOPPIANO, an individual and as Trustee of The Helaine Noreen
5 Foppiano and Louis Michael Foppiano 1997 Trust dated December 23, 1997, HELAINE N.
6 FOPPIANO, an individual and as Trustee of The Helaine Noreen Foppiano and Louis Michael
7 Foppiano 1997 Trust dated December 23, 1997, PAUL FOPPIANO, an individual, GINA M.
8 HOCKER, an individual and as Trustee of the Gina Marie Hocker Revocable Trust dated
9 September 25, 2015, will move the court for instructions to the referee concerning the referee’s
10 posting of bond, approval of third party service contracts, and the means and methods of the real
T e l e p h o n e : ( 7 0 7 ) 8 0 0 - 0 5 5 0 Fa c s i m i l e : ( 7 0 7 ) 8 0 0 - 0 5 5 1
11 estate sale. This motion will be made on the basis of the Memorandum of Points and Authorities
B E R RY & F R I T Z I N G E R , P . C .
3550 Round Barn Blvd., Suite 312
12 for Petition for Instructions to Referee, a copy of which is attached hereto, the declaration of
13 Elizabeth A. Fritzinger, Esq., the Request for Judicial Notice and will be based on the provisions
14 of Civ. Proc. Code, § 873.070, and all papers, documents, and records on file herein and
15 evidence, oral and documentary, to be submitted at the hearing of the petition.
16 DATED: May 22, 2023 BERRY & FRITZINGER, P.C.
17
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19 By:__________________________
Elizabeth A. Fritzinger, Esq.
20 Monica J. Lehre, Esq.
Attorneys for Defendants
21 LOUIS M. FOPPIANO, et al.
22
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NOTICE OF DEFENDANTS' PETITION FOR INSTRUCTIONS TO REFEREE
EXHIBIT C
From: Elizabeth Fritzinger
To: "Greg Wayland"; lindapond.realestate@yahoo.com
Cc: Edward McCutchan; Monica Lehre
Subject: Foppiano: Referee Instructions
Date: Monday, June 5, 2023 10:52:00 AM
Attachments: image001.png
Importance: High
Good morning, All.
I am following up on whether we can meet and confer on agreed upon instructions for the sale of
the home. As you know, we filed a Petition for Instructions to Referee on May 22nd and our hearing
on this Petition is set for September 8th. I think we can all agree that we don’t want to wait until
September for the Court to rule on instructions. It is in everyone’s best interest for us to schedule a
phone call to discuss the instructions so that we can submit a joint stipulation to the Court for its
approval, then Ms. Pond can move forward with selling the home.
I would like to schedule a phone call for this week, if possible. Please advise if you are willing to
participate in a phone call and your availability for the call.
Sincerely,
Elizabeth Fritzinger
Attorney
Berry & Fritzinger, P.C.
3550 Round Barn Blvd., Ste. 312
Santa Rosa, California 95403
Office (707) 800-0550
Direct (707) 800-0553
elizabeth@berryfritzlaw.com
The content of this message is confidential. If you have received it by mistake, please inform us by an email reply and then
delete the message. It is forbidden to copy, forward, or in any way reveal the contents of this message to anyone. The integrity
and security of this email cannot be guaranteed over the Internet. Therefore, the sender will not be held liable for any damage
caused by the message.
EXHIBIT D
From: Greg Wayland
To: Elizabeth Fritzinger; lindapond.realestate@yahoo.com
Cc: Edward McCutchan; Monica Lehre; Maneet Bassi
Subject: RE: Foppiano: Referee Instructions
Date: Wednesday, June 7, 2023 9:00:31 AM
Attachments: image002.png
image003.png
Good morning All –
PLEASE TAKE NOTICE that on June 8, 2023 at 10:30 a.m. in Department 18 of the Sonoma County
Superior Court, before Judge Honigsberg, the Plaintiff Susan Valera will move ex parte for orders
compelling the Defendant’s cooperation with the Partition Referee, including, inter alia, providing
keys and access, ceasing interruption of the partition process with unfounded demands including for
appraisals. The Defendants have been obstructing the Partition referee, through three separate
counsel involved in this garden variety partition case, to thwart the sale of the subject property.
The motion will also seek specific authorizations for the Partition Referee, as more particularly
described in the moving papers to follow.
GW
From: Elizabeth Fritzinger
Sent: Monday, June 5, 2023 10:52 AM
To: Greg Wayland ; lindapond.realestate@yahoo.com
Cc: Edward McCutchan ; Monica Lehre
Subject: Foppiano: Referee Instructions
Importance: High
Good morning, All.
I am following up on whether we can meet and confer on agreed upon instructions for the sale of
the home. As you know, we filed a Petition for Instructions to Referee on May 22nd and our hearing
on this Petition is set for September 8th. I think we can all agree that we don’t want to wait until
September for the Court to rule on instructions. It is in everyone’s best interest for us to schedule a
phone call to discuss the instructions so that we can submit a joint stipulation to the Court for its
approval, then Ms. Pond can move forward with selling the home.
I would like to schedule a phone call for this week, if possible. Please advise if you are willing to
participate in a phone call and your availability for the call.
Sincerely,
Elizabeth Fritzinger
Attorney
Berry & Fritzinger, P.C.
3550 Round Barn Blvd., Ste. 312
Santa Rosa, California 95403
Office (707) 800-0550
Direct (707) 800-0553
elizabeth@berryfritzlaw.com
The content of this message is confidential. If you have received it by mistake, please inform us by an email reply and then
delete the message. It is forbidden to copy, forward, or in any way reveal the contents of this message to anyone. The integrity
and security of this email cannot be guaranteed over the Internet. Therefore, the sender will not be held liable for any damage
caused by the message.
EXHIBIT E
From: Elizabeth Fritzinger
To: Greg Wayland; lindapond.realestate@yahoo.com
Cc: "Edward McCutchan"; Monica Lehre
Subject: RE: Foppiano: Referee Instructions--12781 Old Redwood Highway, Healdsburg, CA 954481
Date: Wednesday, June 7, 2023 1:52:00 PM
Attachments: 223 05-22 Proposed Order re Petition for Ins..pdf
image001.png
Greg-
Thank you for providing your proposed instructions.
For now, I will put aside the accusations that my clients are preventing the sale of the home which of
course we strongly disagree. Instead, I would like to focus our efforts on the instructions to Ms.
Pond.
We are requesting reasonable parameters for the sale of the home which is to everyone’s benefit.
Attached are our suggested instructions. From your prior emails, it seems that you disagree on the
use of an appraisal and setting this listing price, but what about the other instructions?
As it relates to your proposed instructions:
#1 We agree that we should discuss when the listing agent and potential buyers should have access
to the home. Can we agree upon a reasonable schedule?
#2 We understand that the referee will receive bids after the property is listed for sale. We request
that the listing price be based on an appraisal, which we understand you disagree with.
#3 Can you clarify this instruction? Why is it needed?
#4 Regarding the mechanics of the sale, we proposed instructions numbers 3 through 8 and
consummation of the sale is instruction D. Do you agree to these instructions?
#5 We prefer the court approve third party contracts, as required by the CCP, unless we can agree
upon the contract to be signed by the referee or some kind of parameters for signing of third party
contracts.
I respectfully request that we meet and confer on instructions before moving forward with ex parte
applications. Outside of the appraisal issue, it seems like we should be able to agree on several issues
so that we can either avoid petitioning the Court all together, or narrow the issues.
Elizabeth Fritzinger
Attorney
Berry & Fritzinger, P.C.
3550 Round Barn Blvd., Ste. 312
Santa Rosa, California 95403
Office (707) 800-0550
Direct (707) 800-0553
elizabeth@berryfritzlaw.com
The content of this message is confidential. If you have received it by mistake, please inform us by an email reply and then
delete the message. It is forbidden to copy, forward, or in any way reveal the contents of this message to anyone. The integrity
and security of this email cannot be guaranteed over the Internet. Therefore, the sender will not be held liable for any damage
caused by the message.
From: Greg Wayland
Sent: Wednesday, June 7, 2023 1:12 PM
To: Elizabeth Fritzinger ; lindapond.realestate@yahoo.com
Cc: 'Edward McCutchan' ; Monica Lehre
Subject: RE: Foppiano: Referee Instructions--12781 Old Redwood Highway, Healdsburg, CA 954481
Dear Ms. Fritzinger and Mr. McCutchan –
Please find the attached ex parte application docs submitted for filing, and set for hearing as
previously noticed.
As you are aware, this discussion, and the ex parte, are the direct result of the Defendant’s effort to
hinder the listing and sale of the property. Such efforts include Paul Foppiano’s refusal to allow
access and withholding of keys to the premises to prevent its showing and active listing on MLS.
Prior to the third attorney coming on board, Ms. Fritzinger’s office, counsel for the winery (Winkle’s
office) acting on behalf of the defendants in this action was engaged in attempting to include the
property in a separate and independent transaction – with full knowledge that the Sonoma Superior
Court had jurisdiction over the property and had appointed a referee to list and sell it.
What needs to occur is the Defendants should cease and desist obstructing the listing and sale of the
subject property, and if Ms. Fritzinger’s office would like to stipulate to the matters in the attached
proposed order I’m happy to have that discussion.
This is not rocket science, your clients need to allow the Partition Referee (a court appointed official),
to list and sale the house. The Defendants are not entitled to review and approve offers, that never
happens (the Court does, on the Referee’s recommendation, but not the parties); appraisals never
happen unless it’s a partition by appraisal or buyout situation (and ironically, the Defendants aren’t
prohibited from seeking such an appraisal independently).
Please (1) confirm your clients and particularly Paul Foppiano will immediately provide keys and
reasonable access to the Partition Referee, and (2) advise as to whether you will stipulate to the
matters set in the proposed order.
Thanks,
GW
From: Elizabeth Fritzinger
Sent: Wednesday, June 7, 2023 12:51 PM
To: lindapond.realestate@yahoo.com; Greg Wayland
Cc: 'Edward McCutchan' ; Monica Lehre
Subject: RE: Foppiano: Referee Instructions--12781 Old Redwood Highway, Healdsburg, CA 954481
Hello, Linda.
Thank you for your response and willingness to discuss instructions so that we can move forward with
listing and selling the home.
Regarding the appraisal, one reason why my clients would prefer an appraisal is to make sure the
listing price takes into account unique aspects of this home which will be unknown by using a
comparative marketing analysis. Further, using an appraisal to base the list price is advisable so that a
potential sale to a buyer isn’t upended because the home appraised much lower than the sale price.
Also, we are wanting to agree upon more than just whether or not to base the list price on an
appraisal. Attached is our proposed order with includes our suggested instructions. It is our
understanding of California law that we either must agree on the mechanics of the sale, or in the
alternative, if the parties can’t agree, then there are mechanisms to seek the Court’s guidance. In
addition, third party contacts must be approved by the court before a referee can execute the
contract. We want to work with everyone to agree on these third party contracts so that we can
streamline the partition.
I haven’t seen Mr. Wayland’s proposed instructions, but am happy to review them. If he could
circulate them to this group, we can review them and hopefully agree upon a reasonable set of
instructions.
In the alternative, I am in the office the remaining of the afternoon and we can schedule a conference
call.
Elizabeth Fritzinger
Attorney
Berry & Fritzinger, P.C.
3550 Round Barn Blvd., Ste. 312
Santa Rosa, California 95403
Office (707) 800-0550
Direct (707) 800-0553
elizabeth@berryfritzlaw.com
The content of this message is confidential. If you have received it by mistake, please inform us by an email reply and then
delete the message. It is forbidden to copy, forward, or in any way reveal the contents of this message to anyone. The integrity
and security of this email cannot be guaranteed over the Internet. Therefore, the sender will not be held liable for any damage
caused by the message.
From: lindapond.realestate@yahoo.com
Sent: Wednesday, June 7, 2023 10:53 AM
To: Elizabeth Fritzinger ; 'Greg Wayland'
Cc: 'Edward McCutchan' ; Monica Lehre
; lindapond.realestate@yahoo.com
Subject: RE: Foppiano: Referee Instructions--12781 Old Redwood Highway, Healdsburg, CA 954481
Good morning to all of you,
I have received your request to have a call during which we can discuss instructions for the listing and
sale of the subject property. I have always been willing to communicate and continue to be willing to
do so. What I have found is the insistence from Foppiano counsel on obtaining an appraisal prior to
setting a list price, although that was not my instruction from the Court, as I understood it. I have
always suggested that if the Foppianos wanted an appraisal they should have gotten one and
presented it to me to discuss with the Listing Agent, Paula Gold-Noella, while she was basing a
suggested list price on an extensive comparative marketing analysis. Appraisers and experienced
Realtors, such as Paula, utilize the same data bases and Realtors Property Resources to arrive at a
determination of value. In fact, it has been my experience during the past 42 years in the real estate
business that oftentimes a top local Realtor, such as Paula, has insider knowledge from the real estate
agent community and off-market sales that appraisers don’t necessarily have.
That being said, my only goal is to have the property at 12781 Old Redwood Highway, Healdsburg, CA
954481 listed and sold at the best possible price, to the most qualified buyer in the most reasonable
time frame. If having a phone conversation with all parties involved furthers that end, I am happy to
participate.
Sincerely,
Linda Pond, Partition Referee
Realtor® | DRE# 00827031
Lindapond.realestate@yahoo.com
lpond@intero.com
(408) 476-7280
www.southbaycountryproperties.com
From: Elizabeth Fritzinger
Sent: Monday, June 5, 2023 10:52 AM
To: 'Greg Wayland' ; lindapond.realestate@yahoo.com
Cc: Edward McCutchan ; Monica Lehre
Subject: Foppiano: Referee Instructions
Importance: High
Good morning, All.
I am following up on whether we can meet and confer on agreed upon instructions for the sale of the
home. As you know, we filed a Petition for Instructions to Referee on May 22nd and our hearing on
this Petition is set for September 8th. I think we can all agree that we don’t want to wait until
September for the Court to rule on instructions. It is in everyone’s best interest for us to schedule a
phone call to discuss the instructions so that we can submit a joint stipulation to the Court for its
approval, then Ms. Pond can move forward with selling the home.
I would like to schedule a phone call for this week, if possible. Please advise if you are willing to
participate in a phone call and your availability for the call.
Sincerely,
Elizabeth Fritzinger
Attorney
Berry & Fritzinger, P.C.
3550 Round Barn Blvd., Ste. 312
Santa Rosa, California 95403
Office (707) 800-0550
Direct (707) 800-0553
elizabeth@berryfritzlaw.com
The content of this message is confidential. If you have received it by mistake, please inform us by an email reply and then
delete the message. It is forbidden to copy, forward, or in any way reveal the contents of this message to anyone. The integrity
and security of this email cannot be guaranteed over the Internet. Therefore, the sender will not be held liable for any damage
caused by the message.
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
T e l e p h o n e : ( 7 0 7 ) 8 0 0 - 0 5 5 0 Fa c s i m i l e : ( 7 0 7 ) 8 0 0 - 0 5 5 1
Facsimile: (707) 433-0379
11 emccutchan@sunmclaw.com
B E R RY & F R I T Z I N G E R , P . C .
3550 Round Barn Blvd., Suite 312
12 Attorneys for Defendants
LOUIS M. FOPPIANO, et al.
13
14 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SONOMA
15 SUSAN FOPPIANO VALERA, an Case No. SCV-269355
individual,
16 Assigned for All Purposes to Dept. 18
Plaintiff, Hon. Christopher Honigsberg
17
vs. [PROPOSED] ORDER GRANTING
18 DEFENDANTS' PETITION FOR
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 Telephone: (707) 800-0550 Facsimile: (707) 800-0551 Facsimile: (707) 433-0379 11 emccutchan@sunmclaw.com B E R RY & F R I T Z I N G E R , P . C . 12 Attorneys for Defendants 3550 Round Barn Blvd., Suite 312 LOUIS M. FOPPIANO, et al. 13 14 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SONOMA 15 SUSAN FOPPIANO VALERA, an Case No. SCV-269355 individual, 16 Assigned for All Purposes to Dept. 18 Plaintiff, Hon. Christopher Honigsberg 17 vs. DECLARATION OF ELIZABETH A. 18 FRITZINGER IN SUPPORT OF LOUIS M. FOPPIANO, an individual and DEFENDANTS' OPPOSITIONTO 19 as Trustee of The Helaine Noreen Foppiano PLAINTIFF’S EX PARTE APPLICATION and Louis Michael Foppiano 1997 Trust TO REQUEST DEFENDANTS TO 20 dated December 23, 1997, HELAINE N. COOPERATE IN THE LISTING AND FOPPIANO, an individual and as Trustee SALE OF PROPERTY AND FOR 21 of The Helaine Noreen Foppiano and Louis RELATED ORDERS FACILITATING THE Michael Foppiano 1997 Trust dated PARTITION REFEREE’S ROLE 22 December 23, 1997, PAUL FOPPIANO, an individual, GINA M. HOCKER, an DATE: June 08, 2023 23 individual and as Trustee of the Gina Marie TIME: 10:30 AM Hocker Revocable Trust dated September DEPT.: 18 24 25, 2015, all persons unknown claiming any interest in the property, and DOES Action Filed: Oct. 1, 2021 25 1 - 20, Trial Date: None Set 26 Defendants. 27 28 -1- DECLARATION OF ELIZABETH A. FRITZINGER IN SUPPORT OF DEFENDANTS' OPPOSITION 1 I, Elizabeth A. Fritzinger, Esq., hereby declare as follows: 2 1. I am an attorney duly licensed to practice law before all of the courts of the State 3 of California and am an attorney at Berry & Fritzinger, P.C., attorneys of record for Defendants. 4 I am over 18 years of age, have had substantial responsibility for the prosecution of this action, 5 and I am familiar with the papers and pleadings on file herein. I have personal knowledge of the 6 facts set forth in this Declaration and would testify competently thereto if called upon to do so. 7 2. Attached hereto as Exhibit “A” are true and correct copies of my May 10, 2023, 8 May 12, 2023, and May 15, 2023 emails to Plaintiff’s counsel and the Court appointed referee, 9 Linda Pond where I requested meeting and conferring to discuss instructions to Ms. Pond. 10 Plaintiff’s counsel never responded to my email requests to discuss instructions. Telephone: (707) 800-0550 Facsimile: (707) 800-0551 11 3. After receiving no response from Plaintiff’s counsel, on behalf of Defendants, my B E R RY & F R I T Z I N G E R , P . C . 12 office filed Defendants’ Petition for Instructions to Referee which is currently set for hearing on 3550 Round Barn Blvd., Suite 312 13 September 8, 2023. For the Court’s convenience, attached hereto as Exhibit “B” is a true and 14 correct copy of the Petition for Instructions on file with the Court. 15 4. Attached hereto as Exhibit “C” is a true and correct copy of my June 5, 2023 email 16 to Plaintiff’s counsel and the referee wherein I again requested that we meet and confer to come 17 up with a joint stipulation to submit to the Court for approval. Plaintiff’s counsel did not respond 18 to my request to discuss instructions. The sole reason I continued to send emails to Plaintiff’s 19 counsel and the referee is because Plaintiff’s counsel never responded to our requests regarding 20 instructions. 21 5. Plaintiff’s first response to my nearly month-long requests to meet and confer was 22 to send an ex parte notice on June 7, 2023. Attached hereto as Exhibit “D” is a true and correct 23 copy of the email sent to me on Wednesday, June 7, 2023, from Plaintiff’s counsel, noticing the 24 ex parte hearing. 25 6. Attached hereto as Exhibit “E” is a true and correct copy of my attempts to meet 26 and confer with Plaintiff’s counsel after he noticed me regarding the ex parte on June 7, 2023. 27 /// 28 /// -2- DECLARATION OF ELIZABETH A. FRITZINGER IN SUPPORT OF DEFENDANTS' OPPOSITION 1 7. Attorney Don Winkle does not represent the Defendants as it relates to this 2 litigation. 3 I declare under penalty of perjury under the laws of the State of California that the 4 foregoing is true and correct. 5 Executed on June 7, 2023, at Santa Rosa, California. 6 7 __________________________ Elizabeth A. Fritzinger, Esq. 8 9 10 Telephone: (707) 800-0550 Facsimile: (707) 800-0551 11 B E R RY & F R I T Z I N G E R , P . C . 12 3550 Round Barn Blvd., Suite 312 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- DECLARATION OF ELIZABETH A. FRITZINGER IN SUPPORT OF DEFENDANTS' OPPOSITION EXHIBIT A From: Elizabeth Fritzinger To: GWayland@attorneysRE.com; lindapond.realestate@yahoo.com Cc: Monica Lehre; Edward McCutchan Subject: RE: Valera v. Foppiano, et. al. Date: Monday, May 15, 2023 2:02:00 PM Attachments: image001.png Good Afternoon, Mr. Wayland. I included Ms. Pond on this email so that she understands the parties request to meet and confer on instructions to sell the property. Do you have time early this week for a conference call to discuss instructions to Ms. Pond? We are concerned that the property will soon be listed for sale, and we haven’t agreed on the mechanics of the sale, opening bid price, or approval of any third-party contract, including the listing agent contract, etc. The Defendants respectfully request to meet and confer before any further action is taken on the listing of the property. Please let us know a few times that work for you, and we will schedule the call. Elizabeth Fritzinger Attorney Berry & Fritzinger, P.C. 3550 Round Barn Blvd., Ste. 312 Santa Rosa, California 95403 Office (707) 800-0550 Direct (707) 800-0553 elizabeth@berryfritzlaw.com The content of this message is confidential. If you have received it by mistake, please inform us by an email reply and then delete the message. It is forbidden to copy, forward, or in any way reveal the contents of this message to anyone. The integrity and security of this email cannot be guaranteed over the Internet. Therefore, the sender will not be held liable for any damage caused by the message. From: Elizabeth Fritzinger Sent: Friday, May 12, 2023 2:20 PM To: GWayland@attorneysRE.com Cc: Monica Lehre ; Edward McCutchan Subject: RE: Valera v. Foppiano, et. al. Good afternoon, Mr. Wayland. I am following up on my below email. Please let me know if any have any time early next week for a phone call. I would like us to agree on instructions to the referee as soon as possible. Elizabeth Fritzinger Attorney Berry & Fritzinger, P.C. 3550 Round Barn Blvd., Ste. 312 Santa Rosa, California 95403 Office (707) 800-0550 Direct (707) 800-0553 elizabeth@berryfritzlaw.com The content of this message is confidential. If you have received it by mistake, please inform us by an email reply and then delete the message. It is forbidden to copy, forward, or in any way reveal the contents of this message to anyone. The integrity and security of this email cannot be guaranteed over the Internet. Therefore, the sender will not be held liable for any damage caused by the message. From: Elizabeth Fritzinger Sent: Wednesday, May 10, 2023 4:00 PM To: GWayland@attorneysRE.com Cc: Monica Lehre ; Edward McCutchan Subject: Valera v. Foppiano, et. al. Importance: High Mr. Wayland: Please allow me to introduce myself. My name is Elizabeth Fritzinger, and I am a partner at Berry & Fritzinger, P.C. located in Santa Rosa, CA. Berry & Fritzinger, P.C. has been retained to represent the interests of the defendants in Valera v. Foppiano, Sonoma County Superior Court case no. SCV- 269355 as co-counsel with Edward McCutchan. I’ve met with Ed, and he has brought me up to speed on the case. I would like to meet and confer with you as soon as possible to get your thoughts regarding working together on stipulated instructions to the court-appointed referee, Linda Pond, so that the property at issue in this case, namely 12780 Old Redwood Hwy, Healdsburg, CA (the “Property”), may be sold per the court order. We’d like to specifically discuss the following: 1. Listing of the Property. We understand that Ms. Pond has retained real estate agent Paula Gold-Nocella to list and sell the Property (although we find no current MLS listing for the Property). The Property should be appraised before it is listed, and we should agree on the offer price. 2. Appraisal. The Property should be appraised by a mutually agreed upon appraiser. There are multiple issues with the house. To name a few: I understand that there is no ability to hook up to water and sewer systems from the City of Healdsburg and currently no well water or septic system for the residence. There may be hazards within the house such as lead paint (based on the age of the house) and possibly asbestos issues. The residence is very close to Old Redwood Highway so that noise and dust from traffic may reduce the value of the property. Only an appraiser would be able to take into account the unique problems with the Property and estimate FMV for the parties’ consideration. 3. The Costs of Selling the Property. Although the court order appointing the referee states her hourly rate, and states in her declaration that she will be paid from the proceeds upon the sale of the Property, it does not state how the costs to sell the Property are to be allocated and paid-up front. 4. Selling the Property. We should discuss the logistics of selling the Property, such as how we will reach an agreed upon sale price, acceptance of an offer, terms of the sale, etc. We’d like to avoid petitioning the court for instructions. My hope is that a stipulation among the parties that addresses these issues, and any other issues that arise, will avoid involving the court in this process. Please let me know if you have time this week or next week for a conference call. I look forward to hearing from you. Elizabeth Fritzinger Attorney Berry & Fritzinger, P.C. 3550 Round Barn Blvd., Ste. 312 Santa Rosa, California 95403 Office (707) 800-0550 Direct (707) 800-0553 elizabeth@berryfritzlaw.com The content of this message is confidential. If you have received it by mistake, please inform us by an email reply and then delete the message. It is forbidden to copy, forward, or in any way reveal the contents of this message to anyone. The integrity and security of this email cannot be guaranteed over the Internet. Therefore, the sender will not be held liable for any damage caused by the message. EXHIBIT B 1 David W. Berry, Esq. (SBN 180995) ELECTRONICALLY FILED Elizabeth A. Fritzinger, Esq. (SBN 283739) Superior Court of California 2 Monica J. Lehre, Esq. (SBN 329046) County of Sonoma William R. LaBarge, Esq. (SBN 329713) 5/22/2023 4:41 PM 3 BERRY & FRITZINGER, P.C. By: Lorena Deloza, Deputy Clerk 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 T e l e p h o n e : ( 7 0 7 ) 8 0 0 - 0 5 5 0 Fa c s i m i l e : ( 7 0 7 ) 8 0 0 - 0 5 5 1 Facsimile: (707) 433-0379 11 emccutchan@sunmclaw.com B E R RY & F R I T Z I N G E R , P . C . 3550 Round Barn Blvd., Suite 312 12 Attorneys for Defendants LOUIS M. FOPPIANO, et al. 13 14 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SONOMA 15 SUSAN FOPPIANO VALERA, an Case No. SCV-269355 individual, 16 Assigned for All Purposes to Dept. 18 Plaintiff, Hon. Christopher Honigsberg 17 vs. NOTICE OF DEFENDANTS' PETITION 18 FOR INSTRUCTIONS TO REFEREE LOUIS M. FOPPIANO, an individual and 19 as Trustee of The Helaine Noreen Foppiano and Louis Michael Foppiano 1997 Trust Date: 9/8/23 20 dated December 23, 1997, HELAINE N. Time: 3:00 FOPPIANO, an individual and as Trustee Dept. 18 21 of The Helaine Noreen Foppiano and Louis Michael Foppiano 1997 Trust dated Action Filed: Oct. 1, 2021 22 December 23, 1997, PAUL FOPPIANO, an Trial Date: None Set individual, GINA M. HOCKER, an 23 individual and as Trustee of the Gina Marie Hocker Revocable Trust dated September 24 25, 2015, all persons unknown claiming any interest in the property, and DOES 25 1 - 20, 26 Defendants. 27 28 -1- NOTICE OF DEFENDANTS' PETITION FOR INSTRUCTIONS TO REFEREE 1 TO: Plaintiff Susan Foppiano Velera, Plaintiff’s attorney, Attorneys Real Estate Group, APC and 2 Referee Linda Pond 3 You and each of you will please take notice that at the above-stated date, time, and 4 location Defendants LOUIS M. FOPPIANO, an individual and as Trustee of The Helaine Noreen 5 Foppiano and Louis Michael Foppiano 1997 Trust dated December 23, 1997, HELAINE N. 6 FOPPIANO, an individual and as Trustee of The Helaine Noreen Foppiano and Louis Michael 7 Foppiano 1997 Trust dated December 23, 1997, PAUL FOPPIANO, an individual, GINA M. 8 HOCKER, an individual and as Trustee of the Gina Marie Hocker Revocable Trust dated 9 September 25, 2015, will move the court for instructions to the referee concerning the referee’s 10 posting of bond, approval of third party service contracts, and the means and methods of the real T e l e p h o n e : ( 7 0 7 ) 8 0 0 - 0 5 5 0 Fa c s i m i l e : ( 7 0 7 ) 8 0 0 - 0 5 5 1 11 estate sale. This motion will be made on the basis of the Memorandum of Points and Authorities B E R RY & F R I T Z I N G E R , P . C . 3550 Round Barn Blvd., Suite 312 12 for Petition for Instructions to Referee, a copy of which is attached hereto, the declaration of 13 Elizabeth A. Fritzinger, Esq., the Request for Judicial Notice and will be based on the provisions 14 of Civ. Proc. Code, § 873.070, and all papers, documents, and records on file herein and 15 evidence, oral and documentary, to be submitted at the hearing of the petition. 16 DATED: May 22, 2023 BERRY & FRITZINGER, P.C. 17 18 19 By:__________________________ Elizabeth A. Fritzinger, Esq. 20 Monica J. Lehre, Esq. Attorneys for Defendants 21 LOUIS M. FOPPIANO, et al. 22 23 24 25 26 27 28 -2- NOTICE OF DEFENDANTS' PETITION FOR INSTRUCTIONS TO REFEREE EXHIBIT C From: Elizabeth Fritzinger To: "Greg Wayland"; lindapond.realestate@yahoo.com Cc: Edward McCutchan; Monica Lehre Subject: Foppiano: Referee Instructions Date: Monday, June 5, 2023 10:52:00 AM Attachments: image001.png Importance: High Good morning, All. I am following up on whether we can meet and confer on agreed upon instructions for the sale of the home. As you know, we filed a Petition for Instructions to Referee on May 22nd and our hearing on this Petition is set for September 8th. I think we can all agree that we don’t want to wait until September for the Court to rule on instructions. It is in everyone’s best interest for us to schedule a phone call to discuss the instructions so that we can submit a joint stipulation to the Court for its approval, then Ms. Pond can move forward with selling the home. I would like to schedule a phone call for this week, if possible. Please advise if you are willing to participate in a phone call and your availability for the call. Sincerely, Elizabeth Fritzinger Attorney Berry & Fritzinger, P.C. 3550 Round Barn Blvd., Ste. 312 Santa Rosa, California 95403 Office (707) 800-0550 Direct (707) 800-0553 elizabeth@berryfritzlaw.com The content of this message is confidential. If you have received it by mistake, please inform us by an email reply and then delete the message. It is forbidden to copy, forward, or in any way reveal the contents of this message to anyone. The integrity and security of this email cannot be guaranteed over the Internet. Therefore, the sender will not be held liable for any damage caused by the message. EXHIBIT D From: Greg Wayland To: Elizabeth Fritzinger; lindapond.realestate@yahoo.com Cc: Edward McCutchan; Monica Lehre; Maneet Bassi Subject: RE: Foppiano: Referee Instructions Date: Wednesday, June 7, 2023 9:00:31 AM Attachments: image002.png image003.png Good morning All – PLEASE TAKE NOTICE that on June 8, 2023 at 10:30 a.m. in Department 18 of the Sonoma County Superior Court, before Judge Honigsberg, the Plaintiff Susan Valera will move ex parte for orders compelling the Defendant’s cooperation with the Partition Referee, including, inter alia, providing keys and access, ceasing interruption of the partition process with unfounded demands including for appraisals. The Defendants have been obstructing the Partition referee, through three separate counsel involved in this garden variety partition case, to thwart the sale of the subject property. The motion will also seek specific authorizations for the Partition Referee, as more particularly described in the moving papers to follow. GW From: Elizabeth Fritzinger Sent: Monday, June 5, 2023 10:52 AM To: Greg Wayland ; lindapond.realestate@yahoo.com Cc: Edward McCutchan ; Monica Lehre Subject: Foppiano: Referee Instructions Importance: High Good morning, All. I am following up on whether we can meet and confer on agreed upon instructions for the sale of the home. As you know, we filed a Petition for Instructions to Referee on May 22nd and our hearing on this Petition is set for September 8th. I think we can all agree that we don’t want to wait until September for the Court to rule on instructions. It is in everyone’s best interest for us to schedule a phone call to discuss the instructions so that we can submit a joint stipulation to the Court for its approval, then Ms. Pond can move forward with selling the home. I would like to schedule a phone call for this week, if possible. Please advise if you are willing to participate in a phone call and your availability for the call. Sincerely, Elizabeth Fritzinger Attorney Berry & Fritzinger, P.C. 3550 Round Barn Blvd., Ste. 312 Santa Rosa, California 95403 Office (707) 800-0550 Direct (707) 800-0553 elizabeth@berryfritzlaw.com The content of this message is confidential. If you have received it by mistake, please inform us by an email reply and then delete the message. It is forbidden to copy, forward, or in any way reveal the contents of this message to anyone. The integrity and security of this email cannot be guaranteed over the Internet. Therefore, the sender will not be held liable for any damage caused by the message. EXHIBIT E From: Elizabeth Fritzinger To: Greg Wayland; lindapond.realestate@yahoo.com Cc: "Edward McCutchan"; Monica Lehre Subject: RE: Foppiano: Referee Instructions--12781 Old Redwood Highway, Healdsburg, CA 954481 Date: Wednesday, June 7, 2023 1:52:00 PM Attachments: 223 05-22 Proposed Order re Petition for Ins..pdf image001.png Greg- Thank you for providing your proposed instructions. For now, I will put aside the accusations that my clients are preventing the sale of the home which of course we strongly disagree. Instead, I would like to focus our efforts on the instructions to Ms. Pond. We are requesting reasonable parameters for the sale of the home which is to everyone’s benefit. Attached are our suggested instructions. From your prior emails, it seems that you disagree on the use of an appraisal and setting this listing price, but what about the other instructions? As it relates to your proposed instructions: #1 We agree that we should discuss when the listing agent and potential buyers should have access to the home. Can we agree upon a reasonable schedule? #2 We understand that the referee will receive bids after the property is listed for sale. We request that the listing price be based on an appraisal, which we understand you disagree with. #3 Can you clarify this instruction? Why is it needed? #4 Regarding the mechanics of the sale, we proposed instructions numbers 3 through 8 and consummation of the sale is instruction D. Do you agree to these instructions? #5 We prefer the court approve third party contracts, as required by the CCP, unless we can agree upon the contract to be signed by the referee or some kind of parameters for signing of third party contracts. I respectfully request that we meet and confer on instructions before moving forward with ex parte applications. Outside of the appraisal issue, it seems like we should be able to agree on several issues so that we can either avoid petitioning the Court all together, or narrow the issues. Elizabeth Fritzinger Attorney Berry & Fritzinger, P.C. 3550 Round Barn Blvd., Ste. 312 Santa Rosa, California 95403 Office (707) 800-0550 Direct (707) 800-0553 elizabeth@berryfritzlaw.com The content of this message is confidential. If you have received it by mistake, please inform us by an email reply and then delete the message. It is forbidden to copy, forward, or in any way reveal the contents of this message to anyone. The integrity and security of this email cannot be guaranteed over the Internet. Therefore, the sender will not be held liable for any damage caused by the message. From: Greg Wayland Sent: Wednesday, June 7, 2023 1:12 PM To: Elizabeth Fritzinger ; lindapond.realestate@yahoo.com Cc: 'Edward McCutchan' ; Monica Lehre Subject: RE: Foppiano: Referee Instructions--12781 Old Redwood Highway, Healdsburg, CA 954481 Dear Ms. Fritzinger and Mr. McCutchan – Please find the attached ex parte application docs submitted for filing, and set for hearing as previously noticed. As you are aware, this discussion, and the ex parte, are the direct result of the Defendant’s effort to hinder the listing and sale of the property. Such efforts include Paul Foppiano’s refusal to allow access and withholding of keys to the premises to prevent its showing and active listing on MLS. Prior to the third attorney coming on board, Ms. Fritzinger’s office, counsel for the winery (Winkle’s office) acting on behalf of the defendants in this action was engaged in attempting to include the property in a separate and independent transaction – with full knowledge that the Sonoma Superior Court had jurisdiction over the property and had appointed a referee to list and sell it. What needs to occur is the Defendants should cease and desist obstructing the listing and sale of the subject property, and if Ms. Fritzinger’s office would like to stipulate to the matters in the attached proposed order I’m happy to have that discussion. This is not rocket science, your clients need to allow the Partition Referee (a court appointed official), to list and sale the house. The Defendants are not entitled to review and approve offers, that never happens (the Court does, on the Referee’s recommendation, but not the parties); appraisals never happen unless it’s a partition by appraisal or buyout situation (and ironically, the Defendants aren’t prohibited from seeking such an appraisal independently). Please (1) confirm your clients and particularly Paul Foppiano will immediately provide keys and reasonable access to the Partition Referee, and (2) advise as to whether you will stipulate to the matters set in the proposed order. Thanks, GW From: Elizabeth Fritzinger Sent: Wednesday, June 7, 2023 12:51 PM To: lindapond.realestate@yahoo.com; Greg Wayland Cc: 'Edward McCutchan' ; Monica Lehre Subject: RE: Foppiano: Referee Instructions--12781 Old Redwood Highway, Healdsburg, CA 954481 Hello, Linda. Thank you for your response and willingness to discuss instructions so that we can move forward with listing and selling the home. Regarding the appraisal, one reason why my clients would prefer an appraisal is to make sure the listing price takes into account unique aspects of this home which will be unknown by using a comparative marketing analysis. Further, using an appraisal to base the list price is advisable so that a potential sale to a buyer isn’t upended because the home appraised much lower than the sale price. Also, we are wanting to agree upon more than just whether or not to base the list price on an appraisal. Attached is our proposed order with includes our suggested instructions. It is our understanding of California law that we either must agree on the mechanics of the sale, or in the alternative, if the parties can’t agree, then there are mechanisms to seek the Court’s guidance. In addition, third party contacts must be approved by the court before a referee can execute the contract. We want to work with everyone to agree on these third party contracts so that we can streamline the partition. I haven’t seen Mr. Wayland’s proposed instructions, but am happy to review them. If he could circulate them to this group, we can review them and hopefully agree upon a reasonable set of instructions. In the alternative, I am in the office the remaining of the afternoon and we can schedule a conference call. Elizabeth Fritzinger Attorney Berry & Fritzinger, P.C. 3550 Round Barn Blvd., Ste. 312 Santa Rosa, California 95403 Office (707) 800-0550 Direct (707) 800-0553 elizabeth@berryfritzlaw.com The content of this message is confidential. If you have received it by mistake, please inform us by an email reply and then delete the message. It is forbidden to copy, forward, or in any way reveal the contents of this message to anyone. The integrity and security of this email cannot be guaranteed over the Internet. Therefore, the sender will not be held liable for any damage caused by the message. From: lindapond.realestate@yahoo.com Sent: Wednesday, June 7, 2023 10:53 AM To: Elizabeth Fritzinger ; 'Greg Wayland' Cc: 'Edward McCutchan' ; Monica Lehre ; lindapond.realestate@yahoo.com Subject: RE: Foppiano: Referee Instructions--12781 Old Redwood Highway, Healdsburg, CA 954481 Good morning to all of you, I have received your request to have a call during which we can discuss instructions for the listing and sale of the subject property. I have always been willing to communicate and continue to be willing to do so. What I have found is the insistence from Foppiano counsel on obtaining an appraisal prior to setting a list price, although that was not my instruction from the Court, as I understood it. I have always suggested that if the Foppianos wanted an appraisal they should have gotten one and presented it to me to discuss with the Listing Agent, Paula Gold-Noella, while she was basing a suggested list price on an extensive comparative marketing analysis. Appraisers and experienced Realtors, such as Paula, utilize the same data bases and Realtors Property Resources to arrive at a determination of value. In fact, it has been my experience during the past 42 years in the real estate business that oftentimes a top local Realtor, such as Paula, has insider knowledge from the real estate agent community and off-market sales that appraisers don’t necessarily have. That being said, my only goal is to have the property at 12781 Old Redwood Highway, Healdsburg, CA 954481 listed and sold at the best possible price, to the most qualified buyer in the most reasonable time frame. If having a phone conversation with all parties involved furthers that end, I am happy to participate. Sincerely, Linda Pond, Partition Referee Realtor® | DRE# 00827031 Lindapond.realestate@yahoo.com lpond@intero.com (408) 476-7280 www.southbaycountryproperties.com From: Elizabeth Fritzinger Sent: Monday, June 5, 2023 10:52 AM To: 'Greg Wayland' ; lindapond.realestate@yahoo.com Cc: Edward McCutchan ; Monica Lehre Subject: Foppiano: Referee Instructions Importance: High Good morning, All. I am following up on whether we can meet and confer on agreed upon instructions for the sale of the home. As you know, we filed a Petition for Instructions to Referee on May 22nd and our hearing on this Petition is set for September 8th. I think we can all agree that we don’t want to wait until September for the Court to rule on instructions. It is in everyone’s best interest for us to schedule a phone call to discuss the instructions so that we can submit a joint stipulation to the Court for its approval, then Ms. Pond can move forward with selling the home. I would like to schedule a phone call for this week, if possible. Please advise if you are willing to participate in a phone call and your availability for the call. Sincerely, Elizabeth Fritzinger Attorney Berry & Fritzinger, P.C. 3550 Round Barn Blvd., Ste. 312 Santa Rosa, California 95403 Office (707) 800-0550 Direct (707) 800-0553 elizabeth@berryfritzlaw.com The content of this message is confidential. If you have received it by mistake, please inform us by an email reply and then delete the message. It is forbidden to copy, forward, or in any way reveal the contents of this message to anyone. The integrity and security of this email cannot be guaranteed over the Internet. Therefore, the sender will not be held liable for any damage caused by the message. 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 T e l e p h o n e : ( 7 0 7 ) 8 0 0 - 0 5 5 0 Fa c s i m i l e : ( 7 0 7 ) 8 0 0 - 0 5 5 1 Facsimile: (707) 433-0379 11 emccutchan@sunmclaw.com B E R RY & F R I T Z I N G E R , P . C . 3550 Round Barn Blvd., Suite 312 12 Attorneys for Defendants LOUIS M. FOPPIANO, et al. 13 14 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SONOMA 15 SUSAN FOPPIANO VALERA, an Case No. SCV-269355 individual, 16 Assigned for All Purposes to Dept. 18 Plaintiff, Hon. Christopher Honigsberg 17 vs. [PROPOSED] ORDER GRANTING 18 DEFENDANTS' PETITION FOR