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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.
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. DEFENDANTS’ EX PARTE
18 APPLICATION FOR ORDER
LOUIS M. FOPPIANO, an individual and SHORTENING TIME TO ADVANCE THE
19 as Trustee of The Helaine Noreen Foppiano HEARING DATE ON PETITION FOR
and Louis Michael Foppiano 1997 Trust INSTRUCTIONS TO REFEREE
20 dated December 23, 1997, HELAINE N.
FOPPIANO, an individual and as Trustee Hearing Date: June 22, 2023
21 of The Helaine Noreen Foppiano and Louis Time: 10:30 a.m.
Michael Foppiano 1997 Trust dated Dept.: 18
22 December 23, 1997, PAUL FOPPIANO, an
individual, GINA M. HOCKER, an Action Filed: Oct. 1, 2021
23 individual and as Trustee of the Gina Marie Trial Date: None Set
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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DEFENDANTS’ EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO ADVANCE THE
HEARING DATE ON PETITION FOR INSTRUCTIONS TO REFEREE
1 Defendants LOUIS M. FOPPIANO, an individual and as Trustee of The Helaine Noreen
2 Foppiano and Louis Michael Foppiano 1997 Trust dated December 23, 1997, HELAINE N.
3 FOPPIANO, an individual and as Trustee of The Helaine Noreen Foppiano and Louis Michael
4 Foppiano 1997 Trust dated December 23, 1997, PAUL FOPPIANO, an individual, GINA M.
5 HOCKER, an individual and as Trustee of the Gina Marie Hocker Revocable Trust dated
6 September 25, 2015 (collectively “Defendants”) seek an order shortening time for the hearing on
7 Defendants’ Petition for Instructions to Referee (the “Petition for Instructions”) which is currently
8 set for hearing on September 8, 2023. Good cause exists to shorten the time to hear the Petition
9 for Instructions because (1) all parties desire to obtain court approved instructions to the referee
10 so that the subject property may be listed and sold as soon as possible, (2) the Court-appointed
Telephone: (707) 800-0550 Facsimile: (707) 800-0551
11 referee, Ms. Linda Pond, has indicated that if the parties wait until September then they will be
B E R RY & F R I T Z I N G E R , P . C .
12 losing out on marketing opportunities, and (3) Defendants are unaware of any opposition from
3550 Round Barn Blvd., Suite 312
13 Plaintiff regarding shortening the time on hearing the Petition for Instructions. It is necessary to
14 obtain a hearing for a determination on this matter as soon as possible so that the subject property
15 may be listed in sold and to not lose out on this summer’s real estate market.
16 EX PARTE APPLICATION
17 Pursuant to Local Rule 5.6 of the Sonoma Superior Court Rules and California Rules of
18 Court, rule 3.1200, et seq., Defendants hereby apply Ex Parte for an Order Shortening Time for
19 hearing on Defendants’ Petition for Instructions. Good cause exists as set forth below. This Ex
20 Parte Application could not have been made any earlier. The moving papers for Defendants’
21 Petition for Instructions were received back from the Court on May 31, 2023, with a hearing date
22 of September 8, 2023, at 3:00 p.m. in Dept. 18. They were served on Plaintiff’s counsel the same
23 day. (Fritzinger Decl., ¶ 2, Ex. A.) Since receiving the notice of the September hearing date from
24 the Court, Defendants’ counsel, Ms. Fritzinger, attempted to meet and confer with Plaintiff’s
25 counsel to stipulate to instructions to the court-appointed referee Linda Pond on several
26 occasions, including on May 10, 12, 15, 23, and 26, as well as June 5, 7, and 19. (Fritzinger Decl.
27 ¶3, Ex. B.) Unfortunately, the parties have been unable to agree on any instructions to the referee
28 which has kept the referee from listing the subject property. (Fritzinger Decl. ¶3).
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DEFENDANTS’ EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO ADVANCE THE
HEARING DATE ON PETITION FOR INSTRUCTIONS TO REFEREE
1 As set forth in the accompanying Declaration of Elizabeth A. Fritzinger, notice of this ex
2 parte application was provided to counsel for all other parties to this action by way of email sent
3 on Monday, June 19, 2023, at 10:22 a.m. (Fritzinger Decl. ¶4, Ex. C). After providing the notice,
4 the Court appoint referee, Ms. Linda Pond, responded in part “I support whatever efforts you are
5 making to seek clarity from the Court to get the house listed and sold in this market. Waiting
6 until September will mean losing this marketing opportunity.” (Fritzinger Decl., ¶5, Exhibit D)
7 (emphasis added). As of the filing of this Ex Parte Application, Plaintiff has not responded to
8 Defendants’ ex parte notice; however, upon information and belief, Defendants’ counsel is under
9 the impression that Plaintiff also desires an earlier hearing date on the Petition for Instructions
10 because Plaintiff recently filed her own ex parte application regarding instructions. (Fritzinger
Telephone: (707) 800-0550 Facsimile: (707) 800-0551
11 Decl.¶5.) Therefore, Plaintiff, Defendants, and the partition referee herself, are in agreement that
B E R RY & F R I T Z I N G E R , P . C .
12 instructions should be given to the referee by the Court as soon as possible so that the property at
3550 Round Barn Blvd., Suite 312
13 issue may be listed and sold during the prime selling months in the summer of 2023. Defendants
14 request that the time for the hearing on the Petition be shortened and propose that the hearing on
15 the Petition for Instructions be held on this Department’s law and motion calendar on Wednesday,
16 July 5, 2023, that any opposition papers be filed on June 28, 2023, and that any reply papers be
17 filed on June 30, 2023.
18 MEMORANDUM OF POINTS AND AUTHORITIES
19 A. The Court has discretion to shorten the time for the hearing and to shorten the
20 briefing schedule.
21 Trial courts have the inherent authority to manage their calendars and control the
22 proceedings before them. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967; Walker
23 v. Superior Court (1991) 53 Cal.3d 257, 267.) California Rules of Court, Rule 3.1300,
24 subdivision (b) provides that the court "on application for an order shortening time supported by a
25 declaration showing good cause, may prescribe shorter times for the filing and service of papers
26 than the times specified in Code of Civil Procedure section 1005." The ability of the court to
27 shorten time for service of moving papers is further recognized within Code of Civil Procedure
28 section 1005 itself. Thus, this Court has the authority to move the hearing date forward for
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DEFENDANTS’ EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO ADVANCE THE
HEARING DATE ON PETITION FOR INSTRUCTIONS TO REFEREE
1 Defendants’ petition, and shorten the time required for filing and service of papers, upon a
2 showing of good cause.
3 As fully described herein and in the Declaration of Elizabeth Fritzinger set forth below,
4 Defendants have complied with all of the necessary requirements and have shown good cause
5 why an Order Shortening Time should be granted.
6 B. The Parties agree that time is of the essence and the Petition for Instructions
7 should be heard as soon as possible so that the Referee may sell the property
expeditiously.
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9 Plaintiff and Defendants do not agree on the instructions they request the Court give to
10 Linda Pond, who was appointed referee. However, all parties do agree that instructions should be
Telephone: (707) 800-0550 Facsimile: (707) 800-0551
11 provided as soon as possible so that the property may be listed and sold during the prime selling
months. Further, Plaintiff will not be prejudiced by this shortening of time because her attorney
B E R RY & F R I T Z I N G E R , P . C .
12
3550 Round Barn Blvd., Suite 312
13 was mailed a copy of the Petition on May 31, 2023, over three weeks ago. (Fritzinger Decl. ¶ 2,
14 Ex. A). Therefore, Plaintiff has had ample time to review the proposed instructions made by
15 Defendants. Shortening time will not harm Plaintiff and will only help all parties who collectively
16 agree that an expedient sale of the property is of paramount importance to all of them.
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C. The Referee agrees that she would benefit from instructions from the Court and
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is desirous of such instructions. The Referee has stated numerous times that she
19 wishes to sell the property as soon as possible in order to get the best price for the
property.
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21 The referee has stated numerous times that she desires court instructions regarding the sale
22 of the Property and that she desires to sell the property as soon as possible to take advantage of
23 the spring and summer months.
24 On May 23, 2023, the referee emailed the attorneys for all parties, stating:
25 I am eager to get clarity on proceeding forward and am happy to discuss, confer,
meet and discuss, at any time. We are losing time in the Spring Market, so
26 whatever you all can do with counsel and the Court to expedite the process would
be greatly appreciated. I look forward to receiving clarity and instruction from
27 the Court that will result in a successful transaction. (Emphasis added.) (Fritzinger
Decl. ¶ 6, Ex. E.)
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DEFENDANTS’ EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO ADVANCE THE
HEARING DATE ON PETITION FOR INSTRUCTIONS TO REFEREE
1 Further, on June 19, 2023, the referee emailed all counsel in this case, stating, “I support
2 whatever efforts you are making to seek clarity from the Court to get the house listed and sold in
3 this market. Waiting until September will mean losing this marketing opportunity.” (Emphasis
4 added.) (Fritzinger Decl. ¶ 5, Ex. D.)
5 The referee has stressed in emails to the parties that she wishes to receive these
6 instructions as soon as possible so that she may fulfill her duties as court-appointed referee and
7 sell the property quickly and for the highest price during what she has determined to be the most
8 advantageous time of year to sell property in Sonoma County -- the spring and summer months.
9 CONCLUSION
10 Good cause exists for the Court to exercise its discretion to move forward the hearing and
Telephone: (707) 800-0550 Facsimile: (707) 800-0551
11 shorten the briefing schedule on Defendants’ Petition for Instructions to Referee. Accordingly,
B E R RY & F R I T Z I N G E R , P . C .
12 Defendants respectfully request that the Court set the hearing on the Petition for Instructions on
3550 Round Barn Blvd., Suite 312
13 this Department’s law and motion calendar on Wednesday, July 5, 2023, that any opposition
14 papers be filed on June 28, 2023, and that any reply papers be filed on June 30, 2023; or in the
15 alternative, on the earliest date possible, and shorten time for Defendants to provide notice of the
16 hearing, and shorten the briefing schedule, in accordance with the date selected by the Court.
17
18 DATED: June 22, 2023 BERRY & FRITZINGER, P.C.
19
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21 By:__________________________
Monica J. Lehre, Esq.
22 Attorneys for Defendants
LOUIS M. FOPPIANO, et al.
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DEFENDANTS’ EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO ADVANCE THE
HEARING DATE ON PETITION FOR INSTRUCTIONS TO REFEREE
1 DECLARATION OF ELIZABETH A. FRITZINGER IN SUPPORT OF THIS EX PARTE
2 APPLICATION TO SHORTEN TIME
3 I, Elizabeth A. Fritzinger, declare as follows:
4 1. I am an attorney duly licensed to practice law before all the courts of the State of
5 California and am an attorney at Berry & Fritzinger, P.C., attorneys of record for Defendants. I
6 am over 18 years of age, have had substantial responsibility for the prosecution of this action, and
7 I am familiar with the papers and pleadings on file herein. I have personal knowledge of the facts
8 set forth in this Declaration and would testify competently thereto if called upon to do so.
9 2. I received conformed copies of the moving papers for the Petition for Instructions
10 to Referee (“Petition for Instructions”) back from the court on May 31, 2023, which reflect a
Telephone: (707) 800-0550 Facsimile: (707) 800-0551
11 hearing on the Petition for September 8, 2023 at 3:00 p.m. in Dept. 18. On the same day, my
B E R RY & F R I T Z I N G E R , P . C .
12 office served conformed copies of the moving papers, with the hearing date, on Plaintiff’s
3550 Round Barn Blvd., Suite 312
13 attorneys and on the court-appointed referee, Linda Pond. A true and correct copy of the Proof of
14 Service of the Petition moving papers is attached hereto as Exhibit A.
15 3. Since receiving the notice of the September hearing date from the Court, I have
16 attempted to meet and confer with Plaintiff’s counsel to stipulate to instructions to the court-
17 appointed referee Linda Pond on several occasions, including on May 10, 12, 15, 23, and 26, as
18 well as June 5, 7, and 19. True and correct copies of these emails are attached hereto as Exhibit
19 B. Unfortunately, the parties have been unable to agree on any instructions to the referee which
20 has kept the referee from listing the subject property.
21 4. On June 19, 2023, at 10:23 a.m., I personally contacted counsel for all other parties
22 in this action, and Ms. Pond, via email to inform them that I would be making this application,
23 and specifically informed counsel for all other parties of the date, time, and location in which this
24 Application would be made. A true and correct copy of that email is attached hereto as Exhibit C.
25 5. On June 19, 2023, at 4:14 p.m., I received a reply email back from Ms. Pond,
26 court-appointed referee for the partition sale. A true and correct copy of her email to me is
27 attached hereto as Exhibit D. As of the time of filing this Ex Parte, I have not received any
28 communications from Plaintiff’s attorneys. Upon information and belief, I am under the
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DEFENDANTS’ EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO ADVANCE THE
HEARING DATE ON PETITION FOR INSTRUCTIONS TO REFEREE
1 impression that Plaintiff also desires an earlier hearing date on the Petition for Instructions
2 because Plaintiff recently filed her own ex parte application regarding instructions.
3 6. Attached hereto as Exhibit E is a true and correct copy of an email I received on
4 May 23, 2023, from Linda Pond, court-appointed referee in this case.
5
6 I declare under penalty of perjury under the laws of the State of California that the
7 foregoing is true and correct. Executed on June 22, 2023 at Santa Rosa, California.
8
_________________________
9 Elizabeth A. Fritzinger, Esq.
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
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DEFENDANTS’ EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO ADVANCE THE
HEARING DATE ON PETITION FOR INSTRUCTIONS TO REFEREE
EXHIBIT A
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) 5/31/2023 3:57 PM
3 BERRY & FRITZINGER, P.C. By: Taylor Curtis, 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. PROOF OF SERVICE
18
LOUIS M. FOPPIANO, an individual and
19 as Trustee of The Helaine Noreen Foppiano Date:
and Louis Michael Foppiano 1997 Trust Time: 30
20 dated December 23, 1997, HELAINE N. Dept.
FOPPIANO, an individual and as Trustee
21 of The Helaine Noreen Foppiano and Louis Action Filed: Oct. 1, 2021
Michael Foppiano 1997 Trust dated Trial Date: None Set
22 December 23, 1997, PAUL FOPPIANO, an
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
PROOF OF SERVICE
1 PROOF OF SERVICE
2 I am employed in the County of Sonoma, California.
3 I am over the age of eighteen (18) years and not a party to the within cause; my business
4 address is 3550 Round Barn Blvd., Suite 312, Santa Rosa, CA 95403. On May 31, 2023, I
5 served a true copy of the attached:
6 1. DECLARATION OF ELIZABETH A. FRITZINGER IN SUPPORT OF
DEFENDANTS' PETITION FOR INSTRUCTIONS TO REFEREE (endorsed-filed)
7
2. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
8 DEFENDANTS’ PETITION FOR INSTRUCTIONS TO REFEREE (endorsed-filed)
9 3. NOTICE OF DEFENDANTS' PETITION FOR INSTRUCTIONS TO REFEREE
(endorsed-filed)
10
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
4. [PROPOSED] ORDER GRANTING DEFENDANTS' PETITION FOR
11 INSTRUCTIONS TO REFEREE
5. REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ PETITION
B E R RY & F R I T Z I N G E R , P . C .
3550 Round Barn Blvd., Suite 312
12
FOR INSTRUCTIONS TO REFEREE (endorsed-filed)
13 6. PROOF OF SERVICE.
14 on the involved parties in said cause, in the manner indicated as follows:
15 Brian J. Clark, Esq. Attorneys for Plaintiff
Gregory P. Wayland, Esq. SUSAN FOPPIANO VALERA
16 Roberto G. Cruz, Esq.
Attorneys Real Estate Group, APC
17 905 Highland Pointe Drive, Suite 100
Roseville, CA 95678
18 Telephone: (916) 671-3138
gwayland@AttorneysRE.com
19
20 Linda Pond COURT APPOINTED REFEREE
Intero Real Estate Services
21 175 E Main Ave., Suite 130
Morgan Hill, CA 95037
22 Lindapond.realestate@yahoo.com
23
24 : (BY MAIL) By placing a true copy thereof in a sealed envelope, with postage thereon
fully prepaid for first-class mail, in the designated outgoing mail receptacle at Berry &
25 Fritzinger, P.C. for collection by another employee who is responsible in the normal
course of business, for depositing the stamped envelopes for mailing this same day in the
26 United States Mail at Santa Rosa, California.
27 (BY PERSONAL SERVICE) By placing a true and correct copy of the above-
referenced document(s) enclosed in a sealed envelope and causing such envelope to be
28 delivered by hand to the addressee(s) at the address(es) noted above.
1
PROOF OF SERVICE
1
: (BY E-MAIL) I caused a true and correct copy of the above-referenced document(s) to
2 be transmitted by e-mail to the above-referenced e-mail addresses.
3 I declare under penalty of perjury under the laws of the State of California that the
4 foregoing is true and correct. Executed May 31, 2023 at Santa Rosa, California.
5
6
____________________________
7 Crystal Roy
8
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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
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B E R RY & F R I T Z I N G E R , P . C .
3550 Round Barn Blvd., Suite 312
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PROOF OF SERVICE
EXHIBIT B
From: Elizabeth Fritzinger
To: Greg Wayland; lindapond.realestate@yahoo.com
Cc: Edward McCutchan; Monica Lehre
Subject: Referee Instructions
Date: Monday, June 19, 2023 9:51:00 AM
Attachments: image001.png
223 05-22 Proposed Order re Petition for Ins. (1) (1).pdf
Good morning, All.
The hearing on Defendants’ Petition for Instructions is scheduled for September 8, 2023. I would
like to discuss Defendants’ proposed instructions (attached above) with the hope of us agreeing on
instructions, or if we can’t agree on all the instructions, then narrowing the issue to a few
instructions that need to be ruled on by the Court.
In particular, I understand there will most likely be a dispute regarding the use of an appraisal.
Ho
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. DEFENDANTS’ EX PARTE 18 APPLICATION FOR ORDER LOUIS M. FOPPIANO, an individual and SHORTENING TIME TO ADVANCE THE 19 as Trustee of The Helaine Noreen Foppiano HEARING DATE ON PETITION FOR and Louis Michael Foppiano 1997 Trust INSTRUCTIONS TO REFEREE 20 dated December 23, 1997, HELAINE N. FOPPIANO, an individual and as Trustee Hearing Date: June 22, 2023 21 of The Helaine Noreen Foppiano and Louis Time: 10:30 a.m. Michael Foppiano 1997 Trust dated Dept.: 18 22 December 23, 1997, PAUL FOPPIANO, an individual, GINA M. HOCKER, an Action Filed: Oct. 1, 2021 23 individual and as Trustee of the Gina Marie Trial Date: None Set 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- DEFENDANTS’ EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO ADVANCE THE HEARING DATE ON PETITION FOR INSTRUCTIONS TO REFEREE 1 Defendants LOUIS M. FOPPIANO, an individual and as Trustee of The Helaine Noreen 2 Foppiano and Louis Michael Foppiano 1997 Trust dated December 23, 1997, HELAINE N. 3 FOPPIANO, an individual and as Trustee of The Helaine Noreen Foppiano and Louis Michael 4 Foppiano 1997 Trust dated December 23, 1997, PAUL FOPPIANO, an individual, GINA M. 5 HOCKER, an individual and as Trustee of the Gina Marie Hocker Revocable Trust dated 6 September 25, 2015 (collectively “Defendants”) seek an order shortening time for the hearing on 7 Defendants’ Petition for Instructions to Referee (the “Petition for Instructions”) which is currently 8 set for hearing on September 8, 2023. Good cause exists to shorten the time to hear the Petition 9 for Instructions because (1) all parties desire to obtain court approved instructions to the referee 10 so that the subject property may be listed and sold as soon as possible, (2) the Court-appointed Telephone: (707) 800-0550 Facsimile: (707) 800-0551 11 referee, Ms. Linda Pond, has indicated that if the parties wait until September then they will be B E R RY & F R I T Z I N G E R , P . C . 12 losing out on marketing opportunities, and (3) Defendants are unaware of any opposition from 3550 Round Barn Blvd., Suite 312 13 Plaintiff regarding shortening the time on hearing the Petition for Instructions. It is necessary to 14 obtain a hearing for a determination on this matter as soon as possible so that the subject property 15 may be listed in sold and to not lose out on this summer’s real estate market. 16 EX PARTE APPLICATION 17 Pursuant to Local Rule 5.6 of the Sonoma Superior Court Rules and California Rules of 18 Court, rule 3.1200, et seq., Defendants hereby apply Ex Parte for an Order Shortening Time for 19 hearing on Defendants’ Petition for Instructions. Good cause exists as set forth below. This Ex 20 Parte Application could not have been made any earlier. The moving papers for Defendants’ 21 Petition for Instructions were received back from the Court on May 31, 2023, with a hearing date 22 of September 8, 2023, at 3:00 p.m. in Dept. 18. They were served on Plaintiff’s counsel the same 23 day. (Fritzinger Decl., ¶ 2, Ex. A.) Since receiving the notice of the September hearing date from 24 the Court, Defendants’ counsel, Ms. Fritzinger, attempted to meet and confer with Plaintiff’s 25 counsel to stipulate to instructions to the court-appointed referee Linda Pond on several 26 occasions, including on May 10, 12, 15, 23, and 26, as well as June 5, 7, and 19. (Fritzinger Decl. 27 ¶3, Ex. B.) Unfortunately, the parties have been unable to agree on any instructions to the referee 28 which has kept the referee from listing the subject property. (Fritzinger Decl. ¶3). -2- DEFENDANTS’ EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO ADVANCE THE HEARING DATE ON PETITION FOR INSTRUCTIONS TO REFEREE 1 As set forth in the accompanying Declaration of Elizabeth A. Fritzinger, notice of this ex 2 parte application was provided to counsel for all other parties to this action by way of email sent 3 on Monday, June 19, 2023, at 10:22 a.m. (Fritzinger Decl. ¶4, Ex. C). After providing the notice, 4 the Court appoint referee, Ms. Linda Pond, responded in part “I support whatever efforts you are 5 making to seek clarity from the Court to get the house listed and sold in this market. Waiting 6 until September will mean losing this marketing opportunity.” (Fritzinger Decl., ¶5, Exhibit D) 7 (emphasis added). As of the filing of this Ex Parte Application, Plaintiff has not responded to 8 Defendants’ ex parte notice; however, upon information and belief, Defendants’ counsel is under 9 the impression that Plaintiff also desires an earlier hearing date on the Petition for Instructions 10 because Plaintiff recently filed her own ex parte application regarding instructions. (Fritzinger Telephone: (707) 800-0550 Facsimile: (707) 800-0551 11 Decl.¶5.) Therefore, Plaintiff, Defendants, and the partition referee herself, are in agreement that B E R RY & F R I T Z I N G E R , P . C . 12 instructions should be given to the referee by the Court as soon as possible so that the property at 3550 Round Barn Blvd., Suite 312 13 issue may be listed and sold during the prime selling months in the summer of 2023. Defendants 14 request that the time for the hearing on the Petition be shortened and propose that the hearing on 15 the Petition for Instructions be held on this Department’s law and motion calendar on Wednesday, 16 July 5, 2023, that any opposition papers be filed on June 28, 2023, and that any reply papers be 17 filed on June 30, 2023. 18 MEMORANDUM OF POINTS AND AUTHORITIES 19 A. The Court has discretion to shorten the time for the hearing and to shorten the 20 briefing schedule. 21 Trial courts have the inherent authority to manage their calendars and control the 22 proceedings before them. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967; Walker 23 v. Superior Court (1991) 53 Cal.3d 257, 267.) California Rules of Court, Rule 3.1300, 24 subdivision (b) provides that the court "on application for an order shortening time supported by a 25 declaration showing good cause, may prescribe shorter times for the filing and service of papers 26 than the times specified in Code of Civil Procedure section 1005." The ability of the court to 27 shorten time for service of moving papers is further recognized within Code of Civil Procedure 28 section 1005 itself. Thus, this Court has the authority to move the hearing date forward for -3- DEFENDANTS’ EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO ADVANCE THE HEARING DATE ON PETITION FOR INSTRUCTIONS TO REFEREE 1 Defendants’ petition, and shorten the time required for filing and service of papers, upon a 2 showing of good cause. 3 As fully described herein and in the Declaration of Elizabeth Fritzinger set forth below, 4 Defendants have complied with all of the necessary requirements and have shown good cause 5 why an Order Shortening Time should be granted. 6 B. The Parties agree that time is of the essence and the Petition for Instructions 7 should be heard as soon as possible so that the Referee may sell the property expeditiously. 8 9 Plaintiff and Defendants do not agree on the instructions they request the Court give to 10 Linda Pond, who was appointed referee. However, all parties do agree that instructions should be Telephone: (707) 800-0550 Facsimile: (707) 800-0551 11 provided as soon as possible so that the property may be listed and sold during the prime selling months. Further, Plaintiff will not be prejudiced by this shortening of time because her attorney B E R RY & F R I T Z I N G E R , P . C . 12 3550 Round Barn Blvd., Suite 312 13 was mailed a copy of the Petition on May 31, 2023, over three weeks ago. (Fritzinger Decl. ¶ 2, 14 Ex. A). Therefore, Plaintiff has had ample time to review the proposed instructions made by 15 Defendants. Shortening time will not harm Plaintiff and will only help all parties who collectively 16 agree that an expedient sale of the property is of paramount importance to all of them. 17 C. The Referee agrees that she would benefit from instructions from the Court and 18 is desirous of such instructions. The Referee has stated numerous times that she 19 wishes to sell the property as soon as possible in order to get the best price for the property. 20 21 The referee has stated numerous times that she desires court instructions regarding the sale 22 of the Property and that she desires to sell the property as soon as possible to take advantage of 23 the spring and summer months. 24 On May 23, 2023, the referee emailed the attorneys for all parties, stating: 25 I am eager to get clarity on proceeding forward and am happy to discuss, confer, meet and discuss, at any time. We are losing time in the Spring Market, so 26 whatever you all can do with counsel and the Court to expedite the process would be greatly appreciated. I look forward to receiving clarity and instruction from 27 the Court that will result in a successful transaction. (Emphasis added.) (Fritzinger Decl. ¶ 6, Ex. E.) 28 -4- DEFENDANTS’ EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO ADVANCE THE HEARING DATE ON PETITION FOR INSTRUCTIONS TO REFEREE 1 Further, on June 19, 2023, the referee emailed all counsel in this case, stating, “I support 2 whatever efforts you are making to seek clarity from the Court to get the house listed and sold in 3 this market. Waiting until September will mean losing this marketing opportunity.” (Emphasis 4 added.) (Fritzinger Decl. ¶ 5, Ex. D.) 5 The referee has stressed in emails to the parties that she wishes to receive these 6 instructions as soon as possible so that she may fulfill her duties as court-appointed referee and 7 sell the property quickly and for the highest price during what she has determined to be the most 8 advantageous time of year to sell property in Sonoma County -- the spring and summer months. 9 CONCLUSION 10 Good cause exists for the Court to exercise its discretion to move forward the hearing and Telephone: (707) 800-0550 Facsimile: (707) 800-0551 11 shorten the briefing schedule on Defendants’ Petition for Instructions to Referee. Accordingly, B E R RY & F R I T Z I N G E R , P . C . 12 Defendants respectfully request that the Court set the hearing on the Petition for Instructions on 3550 Round Barn Blvd., Suite 312 13 this Department’s law and motion calendar on Wednesday, July 5, 2023, that any opposition 14 papers be filed on June 28, 2023, and that any reply papers be filed on June 30, 2023; or in the 15 alternative, on the earliest date possible, and shorten time for Defendants to provide notice of the 16 hearing, and shorten the briefing schedule, in accordance with the date selected by the Court. 17 18 DATED: June 22, 2023 BERRY & FRITZINGER, P.C. 19 20 21 By:__________________________ Monica J. Lehre, Esq. 22 Attorneys for Defendants LOUIS M. FOPPIANO, et al. 23 24 25 26 27 28 -5- DEFENDANTS’ EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO ADVANCE THE HEARING DATE ON PETITION FOR INSTRUCTIONS TO REFEREE 1 DECLARATION OF ELIZABETH A. FRITZINGER IN SUPPORT OF THIS EX PARTE 2 APPLICATION TO SHORTEN TIME 3 I, Elizabeth A. Fritzinger, declare as follows: 4 1. I am an attorney duly licensed to practice law before all the courts of the State of 5 California and am an attorney at Berry & Fritzinger, P.C., attorneys of record for Defendants. I 6 am over 18 years of age, have had substantial responsibility for the prosecution of this action, and 7 I am familiar with the papers and pleadings on file herein. I have personal knowledge of the facts 8 set forth in this Declaration and would testify competently thereto if called upon to do so. 9 2. I received conformed copies of the moving papers for the Petition for Instructions 10 to Referee (“Petition for Instructions”) back from the court on May 31, 2023, which reflect a Telephone: (707) 800-0550 Facsimile: (707) 800-0551 11 hearing on the Petition for September 8, 2023 at 3:00 p.m. in Dept. 18. On the same day, my B E R RY & F R I T Z I N G E R , P . C . 12 office served conformed copies of the moving papers, with the hearing date, on Plaintiff’s 3550 Round Barn Blvd., Suite 312 13 attorneys and on the court-appointed referee, Linda Pond. A true and correct copy of the Proof of 14 Service of the Petition moving papers is attached hereto as Exhibit A. 15 3. Since receiving the notice of the September hearing date from the Court, I have 16 attempted to meet and confer with Plaintiff’s counsel to stipulate to instructions to the court- 17 appointed referee Linda Pond on several occasions, including on May 10, 12, 15, 23, and 26, as 18 well as June 5, 7, and 19. True and correct copies of these emails are attached hereto as Exhibit 19 B. Unfortunately, the parties have been unable to agree on any instructions to the referee which 20 has kept the referee from listing the subject property. 21 4. On June 19, 2023, at 10:23 a.m., I personally contacted counsel for all other parties 22 in this action, and Ms. Pond, via email to inform them that I would be making this application, 23 and specifically informed counsel for all other parties of the date, time, and location in which this 24 Application would be made. A true and correct copy of that email is attached hereto as Exhibit C. 25 5. On June 19, 2023, at 4:14 p.m., I received a reply email back from Ms. Pond, 26 court-appointed referee for the partition sale. A true and correct copy of her email to me is 27 attached hereto as Exhibit D. As of the time of filing this Ex Parte, I have not received any 28 communications from Plaintiff’s attorneys. Upon information and belief, I am under the -6- DEFENDANTS’ EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO ADVANCE THE HEARING DATE ON PETITION FOR INSTRUCTIONS TO REFEREE 1 impression that Plaintiff also desires an earlier hearing date on the Petition for Instructions 2 because Plaintiff recently filed her own ex parte application regarding instructions. 3 6. Attached hereto as Exhibit E is a true and correct copy of an email I received on 4 May 23, 2023, from Linda Pond, court-appointed referee in this case. 5 6 I declare under penalty of perjury under the laws of the State of California that the 7 foregoing is true and correct. Executed on June 22, 2023 at Santa Rosa, California. 8 _________________________ 9 Elizabeth A. Fritzinger, Esq. 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 -7- DEFENDANTS’ EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO ADVANCE THE HEARING DATE ON PETITION FOR INSTRUCTIONS TO REFEREE EXHIBIT A 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) 5/31/2023 3:57 PM 3 BERRY & FRITZINGER, P.C. By: Taylor Curtis, 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. PROOF OF SERVICE 18 LOUIS M. FOPPIANO, an individual and 19 as Trustee of The Helaine Noreen Foppiano Date: and Louis Michael Foppiano 1997 Trust Time: 30 20 dated December 23, 1997, HELAINE N. Dept. FOPPIANO, an individual and as Trustee 21 of The Helaine Noreen Foppiano and Louis Action Filed: Oct. 1, 2021 Michael Foppiano 1997 Trust dated Trial Date: None Set 22 December 23, 1997, PAUL FOPPIANO, an 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 PROOF OF SERVICE 1 PROOF OF SERVICE 2 I am employed in the County of Sonoma, California. 3 I am over the age of eighteen (18) years and not a party to the within cause; my business 4 address is 3550 Round Barn Blvd., Suite 312, Santa Rosa, CA 95403. On May 31, 2023, I 5 served a true copy of the attached: 6 1. DECLARATION OF ELIZABETH A. FRITZINGER IN SUPPORT OF DEFENDANTS' PETITION FOR INSTRUCTIONS TO REFEREE (endorsed-filed) 7 2. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 8 DEFENDANTS’ PETITION FOR INSTRUCTIONS TO REFEREE (endorsed-filed) 9 3. NOTICE OF DEFENDANTS' PETITION FOR INSTRUCTIONS TO REFEREE (endorsed-filed) 10 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 4. [PROPOSED] ORDER GRANTING DEFENDANTS' PETITION FOR 11 INSTRUCTIONS TO REFEREE 5. REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ PETITION B E R RY & F R I T Z I N G E R , P . C . 3550 Round Barn Blvd., Suite 312 12 FOR INSTRUCTIONS TO REFEREE (endorsed-filed) 13 6. PROOF OF SERVICE. 14 on the involved parties in said cause, in the manner indicated as follows: 15 Brian J. Clark, Esq. Attorneys for Plaintiff Gregory P. Wayland, Esq. SUSAN FOPPIANO VALERA 16 Roberto G. Cruz, Esq. Attorneys Real Estate Group, APC 17 905 Highland Pointe Drive, Suite 100 Roseville, CA 95678 18 Telephone: (916) 671-3138 gwayland@AttorneysRE.com 19 20 Linda Pond COURT APPOINTED REFEREE Intero Real Estate Services 21 175 E Main Ave., Suite 130 Morgan Hill, CA 95037 22 Lindapond.realestate@yahoo.com 23 24 : (BY MAIL) By placing a true copy thereof in a sealed envelope, with postage thereon fully prepaid for first-class mail, in the designated outgoing mail receptacle at Berry & 25 Fritzinger, P.C. for collection by another employee who is responsible in the normal course of business, for depositing the stamped envelopes for mailing this same day in the 26 United States Mail at Santa Rosa, California. 27 (BY PERSONAL SERVICE) By placing a true and correct copy of the above- referenced document(s) enclosed in a sealed envelope and causing such envelope to be 28 delivered by hand to the addressee(s) at the address(es) noted above. 1 PROOF OF SERVICE 1 : (BY E-MAIL) I caused a true and correct copy of the above-referenced document(s) to 2 be transmitted by e-mail to the above-referenced e-mail addresses. 3 I declare under penalty of perjury under the laws of the State of California that the 4 foregoing is true and correct. Executed May 31, 2023 at Santa Rosa, California. 5 6 ____________________________ 7 Crystal Roy 8 9 10 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 B E R RY & F R I T Z I N G E R , P . C . 3550 Round Barn Blvd., Suite 312 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 PROOF OF SERVICE EXHIBIT B From: Elizabeth Fritzinger To: Greg Wayland; lindapond.realestate@yahoo.com Cc: Edward McCutchan; Monica Lehre Subject: Referee Instructions Date: Monday, June 19, 2023 9:51:00 AM Attachments: image001.png 223 05-22 Proposed Order re Petition for Ins. (1) (1).pdf Good morning, All. The hearing on Defendants’ Petition for Instructions is scheduled for September 8, 2023. I would like to discuss Defendants’ proposed instructions (attached above) with the hope of us agreeing on instructions, or if we can’t agree on all the instructions, then narrowing the issue to a few instructions that need to be ruled on by the Court. In particular, I understand there will most likely be a dispute regarding the use of an appraisal. Ho