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CIV-130
ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, Slate Bar number, and address). FOR COURT USE ONLY
ft- Anthony Bentivegna 129487
Johnston & Associates, Attorneys at Law, PC
1400 N Dutton Ave Ste 21
Santa Rosa CA 95401
TevepHoneNo: 707-545-6542 FAX NO, (Optiona):7
07 -545-1522
E-MAIL ADDRESS (Optional): abent.ivegna@johnstonassociateslaw.com
ATTORNEY FOR (Name): Eugene Williams/Victoria Piazza
SUPERIOR COURT OF CALIFORNIA, COUNTY OF Sonoma
STREET ADDRESS: 3035 Cleveland Avenue
MAILING ADDRESS: 600 Administration Drive
CITY AND ZIP CODE: Santa Rosa CA 95403
BRANCH NAME: Civil Division
PLAINTIFF/PETITIONER: Olivia Piazza
DEFENDANT/RESPONDENT: Eugene Piazza et al
CASE NUMBER:
NOTICE OF ENTRY OF JUDGMENT
SCV270969
OR ORDER
(Check one): [) UNLIMITED CASE Cl timitep case
(Amount demanded (Amount demanded was
exceeded $25,000) $25,000 or less)
TO ALL PARTIES:
1. Ajudgment, decree, or order was entered in this action on (date): June 13, 2023
2. Acopy of the judgment, decree, or order is attached to this notice.
Date: June 23, 2023
Anthon Benti egna LLE@ ff ae$e
(TYPE OR PRINT NAME OF [XQ Attorney [C]) party witHour ATTORNEY) (SIGNATURE)
Page 1 of 2
Form Approved for Optional Use NOTICE OF ENTRY OF JUDGMENT OR ORDER win courtinto.ca.gov
Judicial Council of California
CIV-130 [New January 1, 2010]
CEB’ | Essential WILLIAMS - PIAZZA
cabcom
| f2|Forms:
CIV-130
PLAINTIFF/PETITIONER: Piazza v Piazza et al CASE NUMBER:
| SCV270969
DEFENDANT/RESPONDENT:
PROOF OF SERVICE BY FIRST-CLASS MAIL
NOTICE OF ENTRY OF JUDGMENT OR ORDER
(NOTE: You cannot serve the Notice of Entry of Judgment or Order /f you are a party in the action. The person who served
the notice must complete this proof of service.)
4 | am at least 18 years old and not a party to this action. | am a resident of or employed in the county where the mailing took
place, and my residence or business address is (specify):
1400 N Dutton Ave Ste 21
Santa Rosa CA 95401
| served a copy of the Notice of Entry of Judgment or Order by enclosing it in a sealed envelope with postage
fully prepaid and (check one):
a. C2} deposited the sealed envelope with the United States Postal Service.
b. [XJ] placed the sealed envelope for collection and processing for mailing, following this business's usual practices,
with which | am readily familiar. On the same day correspondence is placed for collection and mailing, it is
deposited in the ordinary course of business with the United States Postal Service.
The Notice of Entry of Judgment or Order was mailed:
a. on (date): o[ 22/23
b. from (city and stafe);) Santa Rosa, CA
The envelope was addressed and mailed as follows:
a Name of person served: Name of person served:
Michael Fish, Anderson Zeigler PC
Street address: Street address: PO Box 1498
City: City: Santa Rosa
State and zip code: State and zip code: CA 95402
b. Name of person served: Name of person served:
Street address: Street address:
City: City:
State and zip code: State and zip code:
(CD Names and addresses of additional persons served are attached. (You may use form POS-030(P).)
6. Number of pages attached _
4 .
| declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
fe
Date: b (23 a 3
ols: Vrie
(TYPE OR PRINT NAME OF DECLARANT) (SIGNATURE OF DECLARANT)
Page
2 of 2
CIV-130 [New January 1, 2010) NOTICE OF ENTRY OF JUDGMENT OR ORDER
CEB Essential
cebcom E\Forms” WILLIAMS - PIAZZA
Roy N. Johnston (SBN 185409)
Anthony Bentivegna, Esq. (SBN 129487) ELECTRONICALLY FILED
JOHNSTON AND ASSOCIATES, Attorneys at Law, P.C. Superior Court of California
1400 N. Dutton Avenue, Suite 21 County of Sonoma
6/13/2023 4:20 PM
Santa Rosa, California 95401 Robert Oliver, Clerk of the Court
Phone: (707) 545-6542 By: Griselda Zavala, Deputy Clerk
Facsimile: (707) 545-1522
E-mail: abentivegna@johnstonassociateslaw.com
Attorneys for Defendant Eugene Piazza
and Cross-Complainants Eugene Piazza and Victoria Williams
THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 IN AND FOR THE COUNTY OF SONOMA - CIVIL DIVISION
11
OLIVIA PIAZZA, an individual, Case No. SCV 270969
12
Plaintiff, Unlimited Civil Case
13
vs. ORDER ON MOTION FOR
14 INTERLOCUTORY JUDGMENT
EUGENE PIAZZA, and ALL PERSONS
15 UNKNOWN CLAIMING ANY LEGAL OR
EQUITABLE RIGHT, TITLE, ESTATE, LIEN,
16 OR INTEREST IN THE PROPERTY
DESCRIBED IN THE COMPLAINT
17 ADVERSE TO PLAINTIFF’S TITLE
THERETO and DOES 1 through 50, inclusive,
18
Defendants.
19
EUGENE PIAZZA, an individual; and
20 VICTORIA WILLIAMS, an individual;
21 Cross-Complainants,
22 vs.
23 OLIVIA PIAZZA; and DOES 51-70, inclusive,
24 Cross-Defendants.
25
26
27
28
-1-
ORDER FOR INTERLOCUTORY JUDGMENT
This action for partition came on regularly for hearing on June 2, 2023 before Hon. Judge
Bradford DeMeo, Department 17, with Anthony Bentivegna, Johnston and Associates, appearing
for moving Defendant and Cross-Complainant Eugene Piazza and moving Cross-Complainant
Victoria William, and attorney Richard C. O’Hare, Anderson & Ziegler, appearing for Plaintiff and
Cross-Complainant Olivia Piazza, and the Court having heard and considered the evidence and the
argument of counsel, and good cause appearing therefor, the Court adopts its tentative ruling
GRANTING the motion for interlocutory judgment, and modifies it, as follows:
Facts
Plaintiff Olivia Piazza (“Plaintiff or “Olivia”) alleges that she and Defendant Eugene Pizza
10
(“Defendant” or “Eugene”) are co-owners of real property at 7541 Windward Drive, Rohnert Park,
11 California (the “Property”), each holding a 50% interest as a tenant in common. She seeks an order
determining each party’s interest in the Property, determining that no others have an interest in the
12 Property aside from a party referred to as NEWREZ which holds a lien on the Property, and
directing that the Property be sold.
13
Defendant Eugene and Victoria Williams (“Williams”) (collectively, “Cross-
14
Complainants”), filed a cross-complaint against Plaintiff, complaining that they all purchased the
15 Property together by agreement, with each one holding a 1/3 interest with a share of the loan
liability, Eugene is Plaintiff's father, and Williams is Plaintiff's sister. They allege that Plaintiff has
16 failed to pay her share and instead fabricated evidence and made false claims against Eugene,
Plaintiff has falsely denied that Williams owns a 1/3 interest in the Property, and Plaintiff
17 fraudulently induced Cross-Complainants to enter into the purchase of the Property based on false
promises and representations. They seek monetary damages and an order that each party is an
18
owner of a 1/3 interest in the Property.
19
20 Motion
21 Cross-Defendants seek an interlocutory judgment partitioning and selling the
Property. They do not seek a determination as to the respective ownership interests in the
22 Property. They ask the court to appoint a referee to oversee the sale.
23 Plaintiff opposes the motion, arguing that the court should enter judgment pursuant to a
24 memorandum of understanding for a settlement agreement (the “MOU”) into which the parties
entered, based on her pending motion to enforce the Settlement. She does not oppose partition or
25 sale, but argues that Cross-Complainants’ motion seeks to avoid certain terms of the MOU
regarding obligations for mortgage payments and maintenance.
26
In reply, Cross-Complainants assert that the MOU document is not a binding or enforceable,
27 final settlement. They assert that it further contemplated and required consideration and written
certification by Eugene’s then-attorney, Jeffrey S. Lyons (“Lyons”) who, in fact, never certified
28
2+
ORDER FOR INTERLOCUTORY JUDGMENT
it. They contend that the parties were exhausted and that they expressly included this requirement
to ensure that there was full understanding and agreement.
Authority Governing Partitior
According to Code ofCivil Procedure (“CCP”) section 872.710(b), “Except as provided in
Section 872.730, partition as to concurrent interests in the property shall be as of right unless barred
by a valid waiver.” Section 872.730 governs the application to partnerships and partnership
property.
CCP section 872.720 governs entry of an interlocutory judgment for partition. This
provision states, in full and with emphasis added,
(a) If the court finds that the plaintiff is entitled to partition, it shall make an interlocutory
judgment that determines the interests of the parties in the property and orders the partition
of the property and, unless it is to be later determined, the manner of partition.
10 (b) If the court determines that it is impracticable or highly inconvenient to make a single
interlocutory judgment that determines, in the first instance, the interests of all the parties in
1 the property, the court may first ascertain the interests of the original concurrent or
12 successive owners and thereupon make an interlocutory judgment as if such persons were
the sole parties in interest and the only parties to the action. Thereafter, the court may
13 proceed in like manner as between the original concurrent or successive owners and the
parties claiming under them or may allow the interests to remain without further partition if
14 the parties so desire.
15 Authority Governing Enforcement of Settlement Pursuant to CCP section 664.6
16
When a party seeks to enforce a stipulated settlement entered in writing or orally before the
17 court, the court “may enter judgment pursuant to the terms of the settlement.” Code of Civil
Procedure (“CCP”) §664.6. This seems to give the court discretion. In addition, when ruling on a
18 CCP §664.6 motion, the court is a trier of fact and its ruling will be upheld if based on “substantial
evidence.” Fiore v. Alvord (1985) 182 Cal.App.3¢ 561, 566. As explained in Hines v.
19
Lukes (2008) 167 Cal.App.4"" 1174, at 112, “[t]he court retains jurisdiction to enforce a settlement
20 under the statute even after a dismissal, but only if the parties requested such a retention of
jurisdiction before the dismissal. (Citation) Such a request must be made either in a writing signed
21 by the parties or orally before the court.”
22 The court in Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4" 793, at 797
emphasized that before “judgment can be entered, two key prerequisites must be satisfied.” These
23
are contract formation and a writing signed by the parties with the material terms. Jd. As with
24 other contracts, if there is no meeting of the minds on the material terms, then no contract has been
formed. /d.,797, Absent such a contract, there is no settlement agreement which the court may
25 enforce. Id. Section 664.6 only applies to agreements made in writing and signed by the parties, or
orally before the court. If the agreement does not meet these requirements, the party cannot enforce
26 it under section 664.6. Weddington, supra, 809-810.
27
The modern trend is in favor of carrying out the parties’ intentions by enforcing contracts,
28 and it disfavors finding contracts unenforceable due to uncertainty. See Larwin-Southern
California, Inc. v. JGB Investment Co. (1979) 101 Cal.App.34 626, at 641. The court in Larwin-
3+
ORDER FOR INTERLOCUTORY JUDGMENT
Southern stated that neither law nor equity requires every term and condition to be set forth in the
contract and that the court may look to “the usual and reasonable terms found in similar contracts”
and it may infer unexpressed provisions from the writing, the circumstances, custom, and usage, as
long as they do not alter the terms of the agreement. Jd. “At bottom,” the court said, “if the parties
have concluded a transaction in which it appears that they intend to make a contract, the court
should not frustrate their intention if it is possible to reach a fair and just result, even though this
requires a choice among conflicting meanings and the filing of some gaps the parties have
left.” Id.
Discussion
There is no dispute that Plaintiff and at least Defendant Eugene own an interest in the
Property, that the Property should be partitioned, and that the Property should be sold. Plaintiff in
her complaint seeks partition of the Property and she expressly asks the court to sell the Property
when portioning it. Cross-Complainants state in their declarations that they agree with Plaintiff that
the Property should be partitioned and sold.
10
Plaintiff demonstrates that the parties on November 9, 2022 entered into the written MOU
11
regarding this action and the Property. It sets forth detailed terms regarding the parties’ interests in
12 the Property, disposition of the interests, mortgage and maintenance obligations, and more. It
appears to be intended to resolve the dispute and to be inconsistent with the terms which the
13 moving parties seek to impose in this motion.
14 However, as the moving parties point out, the MOU clearly states at {7 that each attorney
will sign the agreement certifying that they have fully explained the terms with their clients and that
15 these are understood. Plaintiff never shows that this occurred, no evidence indicates that it
16 occurred, and the moving parties state that it never occurred, and that at least their then-attorney
never did this.
17
The moving parties also point out that even under the MOU, 94 states that if the specified
18 terms, including payment and transfer of interests, never occurs, then “the parties agree to
immediately list and sell the Property, The parties shall immediately return to Mediation to
19 negotiate the listing and sale of the real property and renegotiate the division of the proceeds
20 resulting from the sale.”
21 Plaintiff brought a motion to enforce the settlement to be heard on July 26, 2023. The Court
does not adjudicate that motion at this time. Despite this, under the circumstances, the court finds
22 that the sale is required, but that the parties still have yet to determine the division of the
xSh
proceeds. The court GRANTS the motion and will enter terlocutory judgment as
23 requested. Michael Pecherer is appointed refe!
!
24 6/13/2023 + aJ
ated:
C TS
25
Judge of the Superior Court
26
Approved as to form:
27
28 Richard C, O’Hare
-4-
ORDER FOR INTERLOCUTORY JUDGMENT
Preview
CIV-130 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, Slate Bar number, and address). FOR COURT USE ONLY ft- Anthony Bentivegna 129487 Johnston & Associates, Attorneys at Law, PC 1400 N Dutton Ave Ste 21 Santa Rosa CA 95401 TevepHoneNo: 707-545-6542 FAX NO, (Optiona):7 07 -545-1522 E-MAIL ADDRESS (Optional): abent.ivegna@johnstonassociateslaw.com ATTORNEY FOR (Name): Eugene Williams/Victoria Piazza SUPERIOR COURT OF CALIFORNIA, COUNTY OF Sonoma STREET ADDRESS: 3035 Cleveland Avenue MAILING ADDRESS: 600 Administration Drive CITY AND ZIP CODE: Santa Rosa CA 95403 BRANCH NAME: Civil Division PLAINTIFF/PETITIONER: Olivia Piazza DEFENDANT/RESPONDENT: Eugene Piazza et al CASE NUMBER: NOTICE OF ENTRY OF JUDGMENT SCV270969 OR ORDER (Check one): [) UNLIMITED CASE Cl timitep case (Amount demanded (Amount demanded was exceeded $25,000) $25,000 or less) TO ALL PARTIES: 1. Ajudgment, decree, or order was entered in this action on (date): June 13, 2023 2. Acopy of the judgment, decree, or order is attached to this notice. Date: June 23, 2023 Anthon Benti egna LLE@ ff ae$e (TYPE OR PRINT NAME OF [XQ Attorney [C]) party witHour ATTORNEY) (SIGNATURE) Page 1 of 2 Form Approved for Optional Use NOTICE OF ENTRY OF JUDGMENT OR ORDER win courtinto.ca.gov Judicial Council of California CIV-130 [New January 1, 2010] CEB’ | Essential WILLIAMS - PIAZZA cabcom | f2|Forms: CIV-130 PLAINTIFF/PETITIONER: Piazza v Piazza et al CASE NUMBER: | SCV270969 DEFENDANT/RESPONDENT: PROOF OF SERVICE BY FIRST-CLASS MAIL NOTICE OF ENTRY OF JUDGMENT OR ORDER (NOTE: You cannot serve the Notice of Entry of Judgment or Order /f you are a party in the action. The person who served the notice must complete this proof of service.) 4 | am at least 18 years old and not a party to this action. | am a resident of or employed in the county where the mailing took place, and my residence or business address is (specify): 1400 N Dutton Ave Ste 21 Santa Rosa CA 95401 | served a copy of the Notice of Entry of Judgment or Order by enclosing it in a sealed envelope with postage fully prepaid and (check one): a. C2} deposited the sealed envelope with the United States Postal Service. b. [XJ] placed the sealed envelope for collection and processing for mailing, following this business's usual practices, with which | am readily familiar. On the same day correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service. The Notice of Entry of Judgment or Order was mailed: a. on (date): o[ 22/23 b. from (city and stafe);) Santa Rosa, CA The envelope was addressed and mailed as follows: a Name of person served: Name of person served: Michael Fish, Anderson Zeigler PC Street address: Street address: PO Box 1498 City: City: Santa Rosa State and zip code: State and zip code: CA 95402 b. Name of person served: Name of person served: Street address: Street address: City: City: State and zip code: State and zip code: (CD Names and addresses of additional persons served are attached. (You may use form POS-030(P).) 6. Number of pages attached _ 4 . | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. fe Date: b (23 a 3 ols: Vrie (TYPE OR PRINT NAME OF DECLARANT) (SIGNATURE OF DECLARANT) Page 2 of 2 CIV-130 [New January 1, 2010) NOTICE OF ENTRY OF JUDGMENT OR ORDER CEB Essential cebcom E\Forms” WILLIAMS - PIAZZA Roy N. Johnston (SBN 185409) Anthony Bentivegna, Esq. (SBN 129487) ELECTRONICALLY FILED JOHNSTON AND ASSOCIATES, Attorneys at Law, P.C. Superior Court of California 1400 N. Dutton Avenue, Suite 21 County of Sonoma 6/13/2023 4:20 PM Santa Rosa, California 95401 Robert Oliver, Clerk of the Court Phone: (707) 545-6542 By: Griselda Zavala, Deputy Clerk Facsimile: (707) 545-1522 E-mail: abentivegna@johnstonassociateslaw.com Attorneys for Defendant Eugene Piazza and Cross-Complainants Eugene Piazza and Victoria Williams THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 IN AND FOR THE COUNTY OF SONOMA - CIVIL DIVISION 11 OLIVIA PIAZZA, an individual, Case No. SCV 270969 12 Plaintiff, Unlimited Civil Case 13 vs. ORDER ON MOTION FOR 14 INTERLOCUTORY JUDGMENT EUGENE PIAZZA, and ALL PERSONS 15 UNKNOWN CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, ESTATE, LIEN, 16 OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT 17 ADVERSE TO PLAINTIFF’S TITLE THERETO and DOES 1 through 50, inclusive, 18 Defendants. 19 EUGENE PIAZZA, an individual; and 20 VICTORIA WILLIAMS, an individual; 21 Cross-Complainants, 22 vs. 23 OLIVIA PIAZZA; and DOES 51-70, inclusive, 24 Cross-Defendants. 25 26 27 28 -1- ORDER FOR INTERLOCUTORY JUDGMENT This action for partition came on regularly for hearing on June 2, 2023 before Hon. Judge Bradford DeMeo, Department 17, with Anthony Bentivegna, Johnston and Associates, appearing for moving Defendant and Cross-Complainant Eugene Piazza and moving Cross-Complainant Victoria William, and attorney Richard C. O’Hare, Anderson & Ziegler, appearing for Plaintiff and Cross-Complainant Olivia Piazza, and the Court having heard and considered the evidence and the argument of counsel, and good cause appearing therefor, the Court adopts its tentative ruling GRANTING the motion for interlocutory judgment, and modifies it, as follows: Facts Plaintiff Olivia Piazza (“Plaintiff or “Olivia”) alleges that she and Defendant Eugene Pizza 10 (“Defendant” or “Eugene”) are co-owners of real property at 7541 Windward Drive, Rohnert Park, 11 California (the “Property”), each holding a 50% interest as a tenant in common. She seeks an order determining each party’s interest in the Property, determining that no others have an interest in the 12 Property aside from a party referred to as NEWREZ which holds a lien on the Property, and directing that the Property be sold. 13 Defendant Eugene and Victoria Williams (“Williams”) (collectively, “Cross- 14 Complainants”), filed a cross-complaint against Plaintiff, complaining that they all purchased the 15 Property together by agreement, with each one holding a 1/3 interest with a share of the loan liability, Eugene is Plaintiff's father, and Williams is Plaintiff's sister. They allege that Plaintiff has 16 failed to pay her share and instead fabricated evidence and made false claims against Eugene, Plaintiff has falsely denied that Williams owns a 1/3 interest in the Property, and Plaintiff 17 fraudulently induced Cross-Complainants to enter into the purchase of the Property based on false promises and representations. They seek monetary damages and an order that each party is an 18 owner of a 1/3 interest in the Property. 19 20 Motion 21 Cross-Defendants seek an interlocutory judgment partitioning and selling the Property. They do not seek a determination as to the respective ownership interests in the 22 Property. They ask the court to appoint a referee to oversee the sale. 23 Plaintiff opposes the motion, arguing that the court should enter judgment pursuant to a 24 memorandum of understanding for a settlement agreement (the “MOU”) into which the parties entered, based on her pending motion to enforce the Settlement. She does not oppose partition or 25 sale, but argues that Cross-Complainants’ motion seeks to avoid certain terms of the MOU regarding obligations for mortgage payments and maintenance. 26 In reply, Cross-Complainants assert that the MOU document is not a binding or enforceable, 27 final settlement. They assert that it further contemplated and required consideration and written certification by Eugene’s then-attorney, Jeffrey S. Lyons (“Lyons”) who, in fact, never certified 28 2+ ORDER FOR INTERLOCUTORY JUDGMENT it. They contend that the parties were exhausted and that they expressly included this requirement to ensure that there was full understanding and agreement. Authority Governing Partitior According to Code ofCivil Procedure (“CCP”) section 872.710(b), “Except as provided in Section 872.730, partition as to concurrent interests in the property shall be as of right unless barred by a valid waiver.” Section 872.730 governs the application to partnerships and partnership property. CCP section 872.720 governs entry of an interlocutory judgment for partition. This provision states, in full and with emphasis added, (a) If the court finds that the plaintiff is entitled to partition, it shall make an interlocutory judgment that determines the interests of the parties in the property and orders the partition of the property and, unless it is to be later determined, the manner of partition. 10 (b) If the court determines that it is impracticable or highly inconvenient to make a single interlocutory judgment that determines, in the first instance, the interests of all the parties in 1 the property, the court may first ascertain the interests of the original concurrent or 12 successive owners and thereupon make an interlocutory judgment as if such persons were the sole parties in interest and the only parties to the action. Thereafter, the court may 13 proceed in like manner as between the original concurrent or successive owners and the parties claiming under them or may allow the interests to remain without further partition if 14 the parties so desire. 15 Authority Governing Enforcement of Settlement Pursuant to CCP section 664.6 16 When a party seeks to enforce a stipulated settlement entered in writing or orally before the 17 court, the court “may enter judgment pursuant to the terms of the settlement.” Code of Civil Procedure (“CCP”) §664.6. This seems to give the court discretion. In addition, when ruling on a 18 CCP §664.6 motion, the court is a trier of fact and its ruling will be upheld if based on “substantial evidence.” Fiore v. Alvord (1985) 182 Cal.App.3¢ 561, 566. As explained in Hines v. 19 Lukes (2008) 167 Cal.App.4"" 1174, at 112, “[t]he court retains jurisdiction to enforce a settlement 20 under the statute even after a dismissal, but only if the parties requested such a retention of jurisdiction before the dismissal. (Citation) Such a request must be made either in a writing signed 21 by the parties or orally before the court.” 22 The court in Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4" 793, at 797 emphasized that before “judgment can be entered, two key prerequisites must be satisfied.” These 23 are contract formation and a writing signed by the parties with the material terms. Jd. As with 24 other contracts, if there is no meeting of the minds on the material terms, then no contract has been formed. /d.,797, Absent such a contract, there is no settlement agreement which the court may 25 enforce. Id. Section 664.6 only applies to agreements made in writing and signed by the parties, or orally before the court. If the agreement does not meet these requirements, the party cannot enforce 26 it under section 664.6. Weddington, supra, 809-810. 27 The modern trend is in favor of carrying out the parties’ intentions by enforcing contracts, 28 and it disfavors finding contracts unenforceable due to uncertainty. See Larwin-Southern California, Inc. v. JGB Investment Co. (1979) 101 Cal.App.34 626, at 641. The court in Larwin- 3+ ORDER FOR INTERLOCUTORY JUDGMENT Southern stated that neither law nor equity requires every term and condition to be set forth in the contract and that the court may look to “the usual and reasonable terms found in similar contracts” and it may infer unexpressed provisions from the writing, the circumstances, custom, and usage, as long as they do not alter the terms of the agreement. Jd. “At bottom,” the court said, “if the parties have concluded a transaction in which it appears that they intend to make a contract, the court should not frustrate their intention if it is possible to reach a fair and just result, even though this requires a choice among conflicting meanings and the filing of some gaps the parties have left.” Id. Discussion There is no dispute that Plaintiff and at least Defendant Eugene own an interest in the Property, that the Property should be partitioned, and that the Property should be sold. Plaintiff in her complaint seeks partition of the Property and she expressly asks the court to sell the Property when portioning it. Cross-Complainants state in their declarations that they agree with Plaintiff that the Property should be partitioned and sold. 10 Plaintiff demonstrates that the parties on November 9, 2022 entered into the written MOU 11 regarding this action and the Property. It sets forth detailed terms regarding the parties’ interests in 12 the Property, disposition of the interests, mortgage and maintenance obligations, and more. It appears to be intended to resolve the dispute and to be inconsistent with the terms which the 13 moving parties seek to impose in this motion. 14 However, as the moving parties point out, the MOU clearly states at {7 that each attorney will sign the agreement certifying that they have fully explained the terms with their clients and that 15 these are understood. Plaintiff never shows that this occurred, no evidence indicates that it 16 occurred, and the moving parties state that it never occurred, and that at least their then-attorney never did this. 17 The moving parties also point out that even under the MOU, 94 states that if the specified 18 terms, including payment and transfer of interests, never occurs, then “the parties agree to immediately list and sell the Property, The parties shall immediately return to Mediation to 19 negotiate the listing and sale of the real property and renegotiate the division of the proceeds 20 resulting from the sale.” 21 Plaintiff brought a motion to enforce the settlement to be heard on July 26, 2023. The Court does not adjudicate that motion at this time. Despite this, under the circumstances, the court finds 22 that the sale is required, but that the parties still have yet to determine the division of the xSh proceeds. The court GRANTS the motion and will enter terlocutory judgment as 23 requested. Michael Pecherer is appointed refe! ! 24 6/13/2023 + aJ ated: C TS 25 Judge of the Superior Court 26 Approved as to form: 27 28 Richard C, O’Hare -4- ORDER FOR INTERLOCUTORY JUDGMENT