Preview
Brian J. Clark (SBN 277681)
Gregory P. Wayland (SBN 277437)
Roberto G. Cruz (SBN 342729)
Attorneys Real Estate Group, APC
905 Highland Pointe Drive, Suite 100
Roseville, CA 95678
Telephone: (916) 671-3138
Email: gwayland@AttorneysRE.com
Attorneys for Susan Foppiano Valera
SUPERIOR COURT OF THE STATE OF CALIFORNIA.
COUNTY OF SONOMA
-000-
10 SUSAN FOPPIANO VALERA, an Case No.: SCV-269355
Individual,
11
OPPOSITION TO PETITION FOR
12 Plaintiff, INSTRUCTION AND REQUEST TO
ADOPT INSTRUCTIONS REQUESTED
13 vs. BY PARTITION REFEREE
14 LOUIS M. FOPPIANO, an individual and as
Trustee of The Helaine Noreen Foppiano and Hg.: July 5, 2023
1S Louis Michael Foppiano 1997 Trust dated 3:00 p.m.
December 23, 1997, HELAINE N. Department 18
16 FOPPIANO, an individual and as Trustee of
The Helaine Noreen Foppiano and Louis
17 Michael Foppiano 1997 Trust dated FAC: October 1, 2021
December 23, 1997, PAUL Foppiano, an Trial: None Set
18 individual and as Trustee of the Gina Marie
Hocker Revocable Trust dated September 25,
19 2015, all persons unknown claiming any
interest in the property, and DOES 1-20, Hon. Christopher Honigsberg
20
21 Defendants.
22
23 Plaintiff respectfully asks the Court to deny the instructions proposed by Defendants, and
24 to adopt those instructions requested by the Partition Referee on the following grounds:
25 I Introduction and Background.
26 The purpose of the instructions presented by Defendants is to delay or prevent the sale
ordered by the Court, resulting in numerous subsequent hearings on the propriety of every action
taken by the Court's Referee, Linda Pond. It appears that several of the Defendants attempted to
or are still attempting to include the property as an asset in the sale of a winery in which several
Defendants have an ownership interest, and on that basis desire to hinder or prevent the sale
thereof by competitive marketing.!
Proving this point, the Defendants filed an opposition to summary judgment for sale
stating at Page 5, Line 7"... 12781 Old Redwood Highway, Healdsburg, California most likely
will receive higher offering prices if it is marketed with other contiguous properties that are
owned by corporations that the parties to this action have ownership interests in....". ? The Court
10 disagreed, and on October 31, 2023, granted summary judgment for sale and later appointed a
11 Referee to conduct that sale. Through the present petition, and prior filings, the Defendants
12 continue to seek to hinder or prevent competitive marketing in order to add the subject property
13 as an asset to the sale of other properties despite the Court's order and appointment of a Referee
14 to complete the sale via competitive marketing.
15 The gravamen of a partition action is the situation where parties do not agree on the
16 disposition of real property. Yet despite that, paradoxically, the proposed instructions provided
17 the Court by Defendants propose for every action taken by the Referee there should be
18 consensus by the Parties. (see, e.g., Proposed Order, 2:16-18 ["Prior to executing any third party
19 contracts for services, including but not limited to, the services of a real estate broker or agent,
20 the Referee will first present the contract to the Plaintiff and Defendants for approval."]).
21 Where the Parties do not agree, which will be always, each step of the sale process would require
22
' Plaintiffis in possession of an Letter of Intent dated April 3, 2023 that identifies the Subject Property as
23 an "additional asset" of the Winery in Section 4, and requires its sale along with a winery co-owned by several
parties hereto; Plaintiff responded on April 5 demanding the Defendants cease and desist use of the Subject
24 Property as an asset of the Winery because the Sonoma County Superior Court had ordered the Subject Property
sold and had acquired jurisdiction over the Subject Property — documentation is available for the Court but out of an
25 abundance of caution to preserve confidentiality is not included here.
? Referring to the declaration of Paul Foppiano, who appears to be refusing access to the subject property
26 for the purpose of showings — apparently on advice of winery counsel, Edward McCutchan, or the new co-counsel
filing this petition.
a new petition or motion before this Court.
By structuring the proposed order in this manner, it would guarantee a multitude of
additional motions and petitions to the Court on each and every step of the sale process and
result in a substantial hindrance to the sale and use of the Court's time.
Also, the proposed appraisal requirement — which any of the parties could do themselves
at any time — is an invitation for competing appraisals --- and is entirely unnecessary given that
competitive marketing on MLS (as in any other sale of any other property) is already resulting in
competitive bidding on the Subject Property; Competitive marketing is the gold standard for
determining fair market value — not an appraisal -- in actuality, appraisals only forecast what
10 competitive marketing would obtain.
11 No appraisal can confirm a fair market value better than competitive bidding on MLS.
12 There is considerable interest in the property, during the last three days, there have been 491 on
13 MLS by agents, and 197 public views by potential buyers. If the Partition Referee were freed to
14 show the property she would likely receive competing offers in a short time.
15 Il. Discussion.
16 Defendants would have the Partition referee seek approval and consensus by all Parties —
17 and that inevitably failing — file additional petitions and motions before this Court. Should the
18 Court grant the proposed order submitted on behalf of the Partition Referee, the sale could be
19 conducted quickly and easily and submitted to the Court for approval. There is already a full
20 price, all cash offer (subject to an inspection contingency), and in three (3) days on MLS, the
21 there have been 491 on MLS by agents, and 197 public views by potential buyers.
22 If real property is owned concurrently or in successive estates, any owner of an estate of
23 inheritance may sue for partition. (C.C.P. §872.210(a)(2). Persons having or claiming interests
24 "in the estate as to which partition is sought" must be joined as defendants if the interest is of
25 record, is actually known to the plaintiff, or is reasonably apparent from inspection of the
26 property. (C.C.P. section 872.510).
The Court orders the property sold — as occurred here on October 31, 2022 — and the
proceeds are divided among the parties in accordance with their respective interests where the
Court determines it would be more equitable than a division in kind. (C.C.P. §872.820(b)
§872.810).
The Court has already ordered the subject property sold and listing via MLS and
obtaining competitive bidding is the gold standard for obtaining the highest and best price for the
Subject Property. The Court should approve the referee instructions proposed by the Partition
Referee, Linda Pond in order to timely, and with far less motion practice, conduct the sale of the
Subject Property.
10 Til. Conclusion.
11 The entire purpose of a referee is to conduct activity at the Court's discretion, because
12 Parties cannot agree on the disposition of a property. Giving the Defendant's an avenue to
13 object to every step of sale process and necessitate successive petitions and motions would run
14 contrary to the Court's prior orders, the subject matter of this action, and the interests of justice
15 and judicial economy. The Court should not support the approach and order submitted by the
16 Defendants who have a long-standing aim of hindering the sale (as briefed in opposition to
17 summary judgment, and as indicated in a post-judgment letter of intent).
18 The Plaintiff respectfully asks the Court to adopt the instructions proposed by the
19 Partition Referee, and deny the petition for instructions proposed by the Defendants in order to
20 (1) accomplish a timely sale of the subject property, (2) preserve the Court's and Parties’
21 resources by avoiding a petition or motion on each step of the sale process.
22 Respectfully Sub itted,
23 Attomeys eal Estate) 0 ip, APC.
24
25 Dated:
Gre; ry P. Wayl,
26 Attgrney for Susan alera
Preview
Brian J. Clark (SBN 277681) Gregory P. Wayland (SBN 277437) Roberto G. Cruz (SBN 342729) Attorneys Real Estate Group, APC 905 Highland Pointe Drive, Suite 100 Roseville, CA 95678 Telephone: (916) 671-3138 Email: gwayland@AttorneysRE.com Attorneys for Susan Foppiano Valera SUPERIOR COURT OF THE STATE OF CALIFORNIA. COUNTY OF SONOMA -000- 10 SUSAN FOPPIANO VALERA, an Case No.: SCV-269355 Individual, 11 OPPOSITION TO PETITION FOR 12 Plaintiff, INSTRUCTION AND REQUEST TO ADOPT INSTRUCTIONS REQUESTED 13 vs. BY PARTITION REFEREE 14 LOUIS M. FOPPIANO, an individual and as Trustee of The Helaine Noreen Foppiano and Hg.: July 5, 2023 1S Louis Michael Foppiano 1997 Trust dated 3:00 p.m. December 23, 1997, HELAINE N. Department 18 16 FOPPIANO, an individual and as Trustee of The Helaine Noreen Foppiano and Louis 17 Michael Foppiano 1997 Trust dated FAC: October 1, 2021 December 23, 1997, PAUL Foppiano, an Trial: None Set 18 individual and as Trustee of the Gina Marie Hocker Revocable Trust dated September 25, 19 2015, all persons unknown claiming any interest in the property, and DOES 1-20, Hon. Christopher Honigsberg 20 21 Defendants. 22 23 Plaintiff respectfully asks the Court to deny the instructions proposed by Defendants, and 24 to adopt those instructions requested by the Partition Referee on the following grounds: 25 I Introduction and Background. 26 The purpose of the instructions presented by Defendants is to delay or prevent the sale ordered by the Court, resulting in numerous subsequent hearings on the propriety of every action taken by the Court's Referee, Linda Pond. It appears that several of the Defendants attempted to or are still attempting to include the property as an asset in the sale of a winery in which several Defendants have an ownership interest, and on that basis desire to hinder or prevent the sale thereof by competitive marketing.! Proving this point, the Defendants filed an opposition to summary judgment for sale stating at Page 5, Line 7"... 12781 Old Redwood Highway, Healdsburg, California most likely will receive higher offering prices if it is marketed with other contiguous properties that are owned by corporations that the parties to this action have ownership interests in....". ? The Court 10 disagreed, and on October 31, 2023, granted summary judgment for sale and later appointed a 11 Referee to conduct that sale. Through the present petition, and prior filings, the Defendants 12 continue to seek to hinder or prevent competitive marketing in order to add the subject property 13 as an asset to the sale of other properties despite the Court's order and appointment of a Referee 14 to complete the sale via competitive marketing. 15 The gravamen of a partition action is the situation where parties do not agree on the 16 disposition of real property. Yet despite that, paradoxically, the proposed instructions provided 17 the Court by Defendants propose for every action taken by the Referee there should be 18 consensus by the Parties. (see, e.g., Proposed Order, 2:16-18 ["Prior to executing any third party 19 contracts for services, including but not limited to, the services of a real estate broker or agent, 20 the Referee will first present the contract to the Plaintiff and Defendants for approval."]). 21 Where the Parties do not agree, which will be always, each step of the sale process would require 22 ' Plaintiffis in possession of an Letter of Intent dated April 3, 2023 that identifies the Subject Property as 23 an "additional asset" of the Winery in Section 4, and requires its sale along with a winery co-owned by several parties hereto; Plaintiff responded on April 5 demanding the Defendants cease and desist use of the Subject 24 Property as an asset of the Winery because the Sonoma County Superior Court had ordered the Subject Property sold and had acquired jurisdiction over the Subject Property — documentation is available for the Court but out of an 25 abundance of caution to preserve confidentiality is not included here. ? Referring to the declaration of Paul Foppiano, who appears to be refusing access to the subject property 26 for the purpose of showings — apparently on advice of winery counsel, Edward McCutchan, or the new co-counsel filing this petition. a new petition or motion before this Court. By structuring the proposed order in this manner, it would guarantee a multitude of additional motions and petitions to the Court on each and every step of the sale process and result in a substantial hindrance to the sale and use of the Court's time. Also, the proposed appraisal requirement — which any of the parties could do themselves at any time — is an invitation for competing appraisals --- and is entirely unnecessary given that competitive marketing on MLS (as in any other sale of any other property) is already resulting in competitive bidding on the Subject Property; Competitive marketing is the gold standard for determining fair market value — not an appraisal -- in actuality, appraisals only forecast what 10 competitive marketing would obtain. 11 No appraisal can confirm a fair market value better than competitive bidding on MLS. 12 There is considerable interest in the property, during the last three days, there have been 491 on 13 MLS by agents, and 197 public views by potential buyers. If the Partition Referee were freed to 14 show the property she would likely receive competing offers in a short time. 15 Il. Discussion. 16 Defendants would have the Partition referee seek approval and consensus by all Parties — 17 and that inevitably failing — file additional petitions and motions before this Court. Should the 18 Court grant the proposed order submitted on behalf of the Partition Referee, the sale could be 19 conducted quickly and easily and submitted to the Court for approval. There is already a full 20 price, all cash offer (subject to an inspection contingency), and in three (3) days on MLS, the 21 there have been 491 on MLS by agents, and 197 public views by potential buyers. 22 If real property is owned concurrently or in successive estates, any owner of an estate of 23 inheritance may sue for partition. (C.C.P. §872.210(a)(2). Persons having or claiming interests 24 "in the estate as to which partition is sought" must be joined as defendants if the interest is of 25 record, is actually known to the plaintiff, or is reasonably apparent from inspection of the 26 property. (C.C.P. section 872.510). The Court orders the property sold — as occurred here on October 31, 2022 — and the proceeds are divided among the parties in accordance with their respective interests where the Court determines it would be more equitable than a division in kind. (C.C.P. §872.820(b) §872.810). The Court has already ordered the subject property sold and listing via MLS and obtaining competitive bidding is the gold standard for obtaining the highest and best price for the Subject Property. The Court should approve the referee instructions proposed by the Partition Referee, Linda Pond in order to timely, and with far less motion practice, conduct the sale of the Subject Property. 10 Til. Conclusion. 11 The entire purpose of a referee is to conduct activity at the Court's discretion, because 12 Parties cannot agree on the disposition of a property. Giving the Defendant's an avenue to 13 object to every step of sale process and necessitate successive petitions and motions would run 14 contrary to the Court's prior orders, the subject matter of this action, and the interests of justice 15 and judicial economy. The Court should not support the approach and order submitted by the 16 Defendants who have a long-standing aim of hindering the sale (as briefed in opposition to 17 summary judgment, and as indicated in a post-judgment letter of intent). 18 The Plaintiff respectfully asks the Court to adopt the instructions proposed by the 19 Partition Referee, and deny the petition for instructions proposed by the Defendants in order to 20 (1) accomplish a timely sale of the subject property, (2) preserve the Court's and Parties’ 21 resources by avoiding a petition or motion on each step of the sale process. 22 Respectfully Sub itted, 23 Attomeys eal Estate) 0 ip, APC. 24 25 Dated: Gre; ry P. Wayl, 26 Attgrney for Susan alera