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1 MICHAEL S. PECHERER, (SBN 47053)
24 Rio Vista
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Orinda, CA 94563 ELECTRONICALLY
3 Office: 925-386-0943, Cell: 925-518-7076 F I L E D
Email: michael@pecherer.com Superior Court of California,
County of San Francisco
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Referee in Partition 06/17/2020
5 Clerk of the Court
BY: ERNALYN BURA
Deputy Clerk
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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
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12 IN AND FOR THE COUNTY OF SAN FRANCISCO
13 UNLIMITED JURISDICTION
14 ANTHONY CHIAPELONE, Case No.: CGC-17-562017
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Plaintiff,
16 MEMORANDUM OF POINTS AND
vs.
17 AUTHORITIES IN SUPPORT OF PETITION
STEVEN CHIAPELONE, and DOES 1 OF REFEREE` FOR CERTAIN ORDERS
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THROUGH 50, RELATING TO THE DISTRIBUTION OF
THE PROCEEDS OF THIS PARTITION
19 SALE
INCLUSIVE,
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Defendants
21 DATE: July 15, 2020
TIME: 9:30
22 DEPT. 501
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This is a very fact driven Petition that has become necessary because the Defendant
24 continues the pattern of non-cooperation that has characterized his conduct throughout these
25 proceedings. This is a partition action involving a single family residence. The Defendant
26 owned approximately 5% of the “Property”. The Plaintiff, his brother, owned approximately
27 95%. The Petitioner is the Court Appointed Referee. The Property has been sold and this
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION OF REFEREE` FOR
28 CERTAIN ORDERS RELATING TO THE DISTRIBUTION OF THE PROCEEDS OF THIS PARTITION SALE -
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1 Motion in part deals with the distribution of the sale proceeds that belong to Defendant.
2 Throughout these proceedings, the Defendant not only refused to cooperate in any
3 fashion, but his refusal to deal with any aspect resulted in a substantial increase in the burdens on
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the Referee, resulted in far more attorney’s fees then should have been the case, and required
numerous Court appearances to resolve.
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The partition by sale has been completed and the Referee has attempted to implement the
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Distribution Order of February 7, 2020, which required that certain funds in the Referee’s trust
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account and the Defendant’s share of the proceeds be delivered to him. As he has all along, the
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Defendant has refused to cooperate and has refused to accept any of these monies. Additionally,
9 there is personal property of the Defendant in the form of a contract right that must be processed
10 before it escheats to the State of California. Again, the Defendant has refused to cooperate.
11 The parties are brothers. Their parents, now deceased, established a Family Trust for the
12 purpose of administering their estate. They designated the Plaintiff as the successor trustee. As
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detailed in the Declaration of Anthony Ciapelone in support of this Petition, he has gone to great
lengths to preserve and protect assets and monies belonging to the Defendant. While the
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Defendant is an intelligent man, he is eccentric, has a gambling problem and appears to have no
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ability to deal with money.
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In preparing the Property for sale, the Referee found dozens of checks payable to the
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Defendant but uncashed. The total amounts were in six figures. As stated in the Referee’s
18 Declaration, these checks represented the Defendant’s share of rentals on commercial properties
19 inherited from the parties’ parents. The Plaintiff, who as noted is the Trustee of the Family
20 Trust, arranged for the Trust to open a special account for the benefit of the Defendant and into
21 which the monies represented by those checks (including current allocations) have been
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deposited. In this fashion, the Trustee is preserving monies belonging to Defendant, for
Defendant. By this motion, the Referee is seeking authority to deposit funds under the Referee’s
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control in that same bank account.
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The purpose of this Petition is two-fold. First, the Referee is requesting a Court Order
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authorizing him to arrange for the funds belonging to Defendant and presently in his trust
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account be paid to the Family Trust for deposit in the bank account that is specifically
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION OF REFEREE` FOR
28 CERTAIN ORDERS RELATING TO THE DISTRIBUTION OF THE PROCEEDS OF THIS PARTITION SALE -
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1 maintained for the Defendant’s benefit. Further, the Referee requests authority to arrange for the
2 Defendant’s share of the proceeds of the partition sale to be deposited in that same account.
3 Implementation of the requested Orders will entail the Referee writing a trustee check to the
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Trust, and for Fidelity National Title Co., which handled the partition escrow, to reissue the
proceeds check payable to Defendant, but payable to the trustee of the Family Trust with
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instructions that it be deposited in the designated account.
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Secondly, the Referee is requesting that the Court appoint the Plaintiff as the Attorney in
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Fact for the Defendant for the purpose of executing certain documents required by American
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General Life Insurance Co. so that an annuity left to the Defendant by his parents, can also be
9 paid into the same account. If the Court does not issue this Order, the annuity will escheat to the
10 State of California because this claim has been outstanding since the parties’ father died in 2016.
11 The Referee proposes that this annuity contract be treated as an item of personal property
12 to be distributed as part of the partition. The Court previously accepted this approach with
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respect to a massive amount of personal property that the Defendant had left on the Property.
This Court ordered that personal property sold by the Referee with the proceeds retained in trust.
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In this instance, the Referee’s request will result in the annuity funds also being deposited in the
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account is maintained exclusively for Defendant’s benefit within the Family Trust.
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The Defendant is able to retrieve any of the funds held in that account merely by
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requesting the Trustee for the funds.
18 In the particular context of a partition action, this Court has very broad authority to grant
19 the Orders requested by the Referee. A partition action is equitable in nature. CCP§874.120
20 provides that the Court may “. . . make any decrees and orders necessary or incidental to carrying
21 out the purposes of this title and to effectuating its decrees and orders.” CCP§873.810 authorizes
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the Court to use trust type vehicles in order to protect the interests of the parties to the partition.
Finally, the definitional section of the partition statutes, CCP§872.010(c) defines property to be
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partitioned as including “. . . real and personal property”.
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The combination of these provisions confer on this Court very broad jurisdiction to deal
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with and resolve all of the myriad of issues that might arise in the larger context of partition
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actions. Thus, the requests here by the Referee are well within that jurisdiction and those
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION OF REFEREE` FOR
28 CERTAIN ORDERS RELATING TO THE DISTRIBUTION OF THE PROCEEDS OF THIS PARTITION SALE -
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1 requests should be granted.
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4 Dated: June 17, 2020
5 Michael S. Pecherer
Referee in Partition
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION OF REFEREE` FOR
28 CERTAIN ORDERS RELATING TO THE DISTRIBUTION OF THE PROCEEDS OF THIS PARTITION SALE -
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Preview
1 MICHAEL S. PECHERER, (SBN 47053) 24 Rio Vista 2 Orinda, CA 94563 ELECTRONICALLY 3 Office: 925-386-0943, Cell: 925-518-7076 F I L E D Email: michael@pecherer.com Superior Court of California, County of San Francisco 4 Referee in Partition 06/17/2020 5 Clerk of the Court BY: ERNALYN BURA Deputy Clerk 6 7 8 9 10 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 12 IN AND FOR THE COUNTY OF SAN FRANCISCO 13 UNLIMITED JURISDICTION 14 ANTHONY CHIAPELONE, Case No.: CGC-17-562017 15 Plaintiff, 16 MEMORANDUM OF POINTS AND vs. 17 AUTHORITIES IN SUPPORT OF PETITION STEVEN CHIAPELONE, and DOES 1 OF REFEREE` FOR CERTAIN ORDERS 18 THROUGH 50, RELATING TO THE DISTRIBUTION OF THE PROCEEDS OF THIS PARTITION 19 SALE INCLUSIVE, 20 Defendants 21 DATE: July 15, 2020 TIME: 9:30 22 DEPT. 501 23 This is a very fact driven Petition that has become necessary because the Defendant 24 continues the pattern of non-cooperation that has characterized his conduct throughout these 25 proceedings. This is a partition action involving a single family residence. The Defendant 26 owned approximately 5% of the “Property”. The Plaintiff, his brother, owned approximately 27 95%. The Petitioner is the Court Appointed Referee. The Property has been sold and this MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION OF REFEREE` FOR 28 CERTAIN ORDERS RELATING TO THE DISTRIBUTION OF THE PROCEEDS OF THIS PARTITION SALE - 1 1 Motion in part deals with the distribution of the sale proceeds that belong to Defendant. 2 Throughout these proceedings, the Defendant not only refused to cooperate in any 3 fashion, but his refusal to deal with any aspect resulted in a substantial increase in the burdens on 4 the Referee, resulted in far more attorney’s fees then should have been the case, and required numerous Court appearances to resolve. 5 The partition by sale has been completed and the Referee has attempted to implement the 6 Distribution Order of February 7, 2020, which required that certain funds in the Referee’s trust 7 account and the Defendant’s share of the proceeds be delivered to him. As he has all along, the 8 Defendant has refused to cooperate and has refused to accept any of these monies. Additionally, 9 there is personal property of the Defendant in the form of a contract right that must be processed 10 before it escheats to the State of California. Again, the Defendant has refused to cooperate. 11 The parties are brothers. Their parents, now deceased, established a Family Trust for the 12 purpose of administering their estate. They designated the Plaintiff as the successor trustee. As 13 detailed in the Declaration of Anthony Ciapelone in support of this Petition, he has gone to great lengths to preserve and protect assets and monies belonging to the Defendant. While the 14 Defendant is an intelligent man, he is eccentric, has a gambling problem and appears to have no 15 ability to deal with money. 16 In preparing the Property for sale, the Referee found dozens of checks payable to the 17 Defendant but uncashed. The total amounts were in six figures. As stated in the Referee’s 18 Declaration, these checks represented the Defendant’s share of rentals on commercial properties 19 inherited from the parties’ parents. The Plaintiff, who as noted is the Trustee of the Family 20 Trust, arranged for the Trust to open a special account for the benefit of the Defendant and into 21 which the monies represented by those checks (including current allocations) have been 22 deposited. In this fashion, the Trustee is preserving monies belonging to Defendant, for Defendant. By this motion, the Referee is seeking authority to deposit funds under the Referee’s 23 control in that same bank account. 24 The purpose of this Petition is two-fold. First, the Referee is requesting a Court Order 25 authorizing him to arrange for the funds belonging to Defendant and presently in his trust 26 account be paid to the Family Trust for deposit in the bank account that is specifically 27 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION OF REFEREE` FOR 28 CERTAIN ORDERS RELATING TO THE DISTRIBUTION OF THE PROCEEDS OF THIS PARTITION SALE - 2 1 maintained for the Defendant’s benefit. Further, the Referee requests authority to arrange for the 2 Defendant’s share of the proceeds of the partition sale to be deposited in that same account. 3 Implementation of the requested Orders will entail the Referee writing a trustee check to the 4 Trust, and for Fidelity National Title Co., which handled the partition escrow, to reissue the proceeds check payable to Defendant, but payable to the trustee of the Family Trust with 5 instructions that it be deposited in the designated account. 6 Secondly, the Referee is requesting that the Court appoint the Plaintiff as the Attorney in 7 Fact for the Defendant for the purpose of executing certain documents required by American 8 General Life Insurance Co. so that an annuity left to the Defendant by his parents, can also be 9 paid into the same account. If the Court does not issue this Order, the annuity will escheat to the 10 State of California because this claim has been outstanding since the parties’ father died in 2016. 11 The Referee proposes that this annuity contract be treated as an item of personal property 12 to be distributed as part of the partition. The Court previously accepted this approach with 13 respect to a massive amount of personal property that the Defendant had left on the Property. This Court ordered that personal property sold by the Referee with the proceeds retained in trust. 14 In this instance, the Referee’s request will result in the annuity funds also being deposited in the 15 account is maintained exclusively for Defendant’s benefit within the Family Trust. 16 The Defendant is able to retrieve any of the funds held in that account merely by 17 requesting the Trustee for the funds. 18 In the particular context of a partition action, this Court has very broad authority to grant 19 the Orders requested by the Referee. A partition action is equitable in nature. CCP§874.120 20 provides that the Court may “. . . make any decrees and orders necessary or incidental to carrying 21 out the purposes of this title and to effectuating its decrees and orders.” CCP§873.810 authorizes 22 the Court to use trust type vehicles in order to protect the interests of the parties to the partition. Finally, the definitional section of the partition statutes, CCP§872.010(c) defines property to be 23 partitioned as including “. . . real and personal property”. 24 The combination of these provisions confer on this Court very broad jurisdiction to deal 25 with and resolve all of the myriad of issues that might arise in the larger context of partition 26 actions. Thus, the requests here by the Referee are well within that jurisdiction and those 27 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION OF REFEREE` FOR 28 CERTAIN ORDERS RELATING TO THE DISTRIBUTION OF THE PROCEEDS OF THIS PARTITION SALE - 3 1 requests should be granted. 2 3 4 Dated: June 17, 2020 5 Michael S. Pecherer Referee in Partition 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION OF REFEREE` FOR 28 CERTAIN ORDERS RELATING TO THE DISTRIBUTION OF THE PROCEEDS OF THIS PARTITION SALE - 4