No Value: Valera vs Foppiano

On September 22, 2021 a No Value was filed involving a dispute between Valera, Susan Foppiano, and All Persons Unknown Claiming Any Interest In The Property, Foppiano, Helaine N, Foppiano, Louis M, Foppiano, Paul, Hocker, Gina M, for 26: Unlimited Other Real Property in the District Court of Sonoma County.

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1 AMY HARRINGTON SBN 237980
HARRINGTON LAW, PC.
2
846 BROADWAY
3 SONOMA, CALIFORNIA 95476
TEL: 415-558-7700
4 FAX: 415-558-7701
EMAIL: amy@amyharringtonlaw.com
5

6 Attorneys for Linda Pond, Partition Referee

7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
8

9 FOR THE COUNTY OF SONOMA

10 - UNLIMITED JURISDICTION -
11 SUSAN FOPPIANO VALERA, an individual, Case No.: SCV-269355
12
Plaintiff,
13 MEMORANDUM OF POINTS AND
vs. AUTHORITIES IN SUPPORT OF
14
REFEREE’S MOTION FOR APPROVAL
15 LOUIS M. FOPPIANO, an individual and as OF FINAL REPORT OF SALE OF REAL
Trustee of the Helaine Noreen Foppiano and PROPERTY LOCATED AT 12781 OLD
16 Louis Michael Foppiano 1997 Trust dated REDWOOD HIGHWAY, HEALDSBURG
December 23, 1997, HELAINE N. Foppiano, an PURSUANT TO INTERLOCUTORY
17 individual and as Trustee of the Helaine Noreen JUDGMENT FOR PARTITION DATED
18 Foppiano and Louis Michael Foppiano 1997 10/31/2022; APPROVAL OF REFEREE
Trust dated December 23, 1997, PAUL FEES AND COSTS; APPROVAL OF
19 FOPPIANO, an individual and as Trustee of the ATTORNEY FEES AND COSTS AND
Gian Marie Hocker Revocable Trust dated REQUEST FOR JUDICIAL NOTICE
20 September 25, 2015, all persons unknown
21 claiming any interest in the property, and DOES Date:
1-20, Time:
22 Dept.: 18
Defendants.
23 Judge: Hon. Christopher Honigsberg

24 MEMORANDUM OF POINTS AND AUTHORITIES
25 I. PROCEDURAL HISTORY AND FACTUAL BACKGROUND
26
The underlying action was filed as a partition action on September 22, 2021.
27

28 1
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF REFEREE’S MOTION FOR
APPROVAL OF FINAL REPORT OF SALE
VALERA V. FOPPIANO - CASE NO. SCV-269355
1 Plaintiff and Defendants are co-owners of the subject property commonly known as 12781 Old
2
Redwood Highway, Healdsburg, California, 95448, APN: 086-110-021 (“subject property”) and
3
more particularly described as:
4
COMMENCING AT A 1/2" IRON PIPE FOUND AT THE MOST NORTHERLY
5
CORNER OF THE 1.61 ACRE PARCEL SHOWN ON THAT RECORD OF SURVEY
6 RECORDED IN BOOK 60 OF MAPS AT PAGE 11, SONOMA COUNTY RECORDS;
7
THENCE FROM SAID POINT OF COMMENCEMENT N 65° 27' 50" E 0.31 FEET TO
THE WESTERLY LINE OF FORMER U. S. HIGHWAY 101; THENCE N 24° 33' W
8 ALONG SAID LINE 15.00 FEET TO A 1/2" IRON PIPE SET AT THE POINT OF
9 BEGINNING OF THE PARCEL OF LAND TO BE HEREIN DESCRIBED; THENCE
FROM SAID POINT OF BEGINNING CONTINUING N 24° 33" W ALONG SAID
10 LINE 146.85 FEET TO A 1/2" IRON PIPE SET, FROM WHICH A 6" X 6"
11 CONCRETE MONUMENT FOUND BEARS N 24° 33' W 410.40 FEET; THENCE
LEAVING SAID LINE S 65° 27' W 216.87 FEET TO A 1/2" IRON PIPE SET;
12
THENCE S 24° 31' 10" E 80.06 FEET TO A 1/2" IRON PIPE SET; THENCE N 65° 27'
13 E 68.40 FEET TO A 1/2" IRON PIPE SET; THENCE S 24° 31' 10" E 66.79 FEET TO A
1/2" IRON PIPE SET; THENCE N 65° 27' E 148.55 FEET TO THE POINT OF
14
BEGINNING OF THE PARCEL OF LAND HEREIN DESCRIBED.
15
ALL 1/2" IRON PIPES SET ARE TAGGED LS 3193.
16

17
APN: 086-110-021

18 The subject property is owned by Plaintiff Susan Foppiano Valera (“Plaintiff”) and
19 Defendants Paul Foppiano, Gina Hocker, and Louis Foppiano and Helaine Foppiano
20
(collectively “Defendants”) as follows:
21
1. Susan Foppiano Valera owns 33.3% interest;
22

23
2. Paul Foppiano owns 20.8% interest;

24 3. Gina Hocker owns 12.5% interest; and
25 4. Louis Foppiano and Helane Foppiano jointly own, as trustees, 33.4% interest.
26

28 2
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF REFEREE’S MOTION FOR
APPROVAL OF FINAL REPORT OF SALE
VALERA V. FOPPIANO - CASE NO. SCV-269355
1 On October 31, 2022, this Court issued an Order Granting in Part Valera Motion for
2
Summary Adjudication re Interlocutory Judgment for Partition by Sale. Continuing Appointment
3
of Referee. Attached hereto as Exhibit “A” and fully incorporated by this reference is a true and
4
correct copy of this Order.
5

6 On April 5, 2023, this Court issued an Order After Hearing Appointing Linda Pond

7 Partition Referee. Attached hereto as Exhibit “B” and fully incorporated by this reference is a
8
true and correct copy of this Order. This Order appointed Linda Pond as Partition Referee for the
9
purpose of selling the subject property.
10
Partition Referee petitioned the Court for authority to hire counsel and on August 9,
11

12 2023, this Court issued an Order for Authority for Referee to Retain Legal Counsel. The Court

13 authorized Partition Referee to retain Amy Harrington (“Attorney Harrington”) as her counsel in
14
this matter to prepare legal pleadings and deal with necessary legal issues as they arise.
15
Partition Referee entered into an exclusive listing agreement with Paula Gold-Nocella of
16
Vanguard Properties on May 5, 2023. The subject property was listed on the market by Paula
17

18 Gold-Nocella on May 31, 2023 for $900,000.00.

19 On July 2, 2023, Partition Referee received an offer to purchase the property by Michael
20
Barnard and Allison Hargrave for $950,000.00.
21
The water source for the subject property is located on an adjacent parcel of land. Water
22
has been delivered to the subject property from the owners of said parcel, the Foppiano
23

24 Corporation, for more than 100 years. On July 21, 2023 Partition Referee learned that the

25 Foppiano Corporation would be terminating delivery of the water for the property as soon as
26
escrow on the property closes. Partition Referee disclosed this fact to potential buyers and parties
27
who requested information about the property, including the potential buyers who had previously
28 3
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF REFEREE’S MOTION FOR
APPROVAL OF FINAL REPORT OF SALE
VALERA V. FOPPIANO - CASE NO. SCV-269355
1 made an offer on the property. Michael Bernard and Allison Hargrave subsequently revoked
2
their offer. The Partition Referee also realized that the original sales process was flawed in that
3
the notice of the sale was not published in the newspaper. Partition Referee subsequently
4
published a Notice of Intention to Sell Real Property. Attached hereto as Exhibit “C” and fully
5

6 incorporated by this reference is a true and correct copy of the Proof of Publication.

7 The property was listed on the MLS and private showings were held as requested.
8
Partition Referee’s agent marketed the property on ADWERX and the advertisement received
9
7,914 hits.
10
Offers were taken on August 10, 2023. Partition Referee received one offer that complied
11

12 with the legal requirements for a bid for purchase. Michael Barnard and Allison Hargrave made

13 an offer on that date in the amount of $850,000.00. Mr. Barnard and Ms. Hargrave indicated that
14
their reduced bid was due to the removal of the water source.
15
Partition Referee accepted that highest and best offer on August 10, 2023. The Purchase
16
Agreement, Contingency Removal No. 1, and Court Confirmation Addendum were signed on
17

18 August 9, 2023 by the potential purchasers and on August 10, 2023 by Partition Referee.

19 Attached hereto as Exhibit “D” and fully incorporated by this reference is a true and correct copy
20
of the Purchase Agreement.
21
The subject property was sold on an “as is” basis, except as to title. No representation or
22
warranty, express or implied, is made as to the condition or construction of the improvements
23

24 and building now situated on said property or that the improvements and building conform to

25 existing building laws. The sale was subject to current taxes, covenants, conditions, restrictions,
26
reservations, rights of way, and easement of record. Buyer is responsible for any required energy
27
and water conservation ordinance.
28 4
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF REFEREE’S MOTION FOR
APPROVAL OF FINAL REPORT OF SALE
VALERA V. FOPPIANO - CASE NO. SCV-269355
1 Pursuant to California Code of Civil Procedure section 873.730, the sale is subject to
2
Court confirmation and overbid. The minimum overbid must be least ten-percent (10%) on the
3
first ten thousand dollars ($10,000) and five-percent (5%) on the amount in excess thereof (CCP
4
873.740). The first minimum overbid must be at least $893,000.00 and is calculated as follows:
5

6 Original bid: $850,000.00

7 10% of first $10,000: $ 1,000.00
8
5% of $840,000: $ 42,000.00
9
Minimum Overbid: $893,000.00
10
II. REFEREE’S FEES AND COSTS
11

12 Partition Referee has spent more than 214.20 hours on this matter since her appointment

13 and has an hourly rate of $425 per hour for a total of $91,035.00. Said fees are reasonable.
14
Additionally, Partition Referee advanced costs in the amount of $475 and requests
15
reimbursement for those costs. Attached here-to as Exhibit "E" is a detailed billing statement
16
showing the work performed and costs advanced by Partition Referee.
17

18 III. REFEREE’S ATTORNEY’S FEES AND COSTS

19 Attorney Harrington has spent more than 15.80 hours on this matter since her
20
appointment and has an hourly rate of $500 per hour for a total of $7,900. Said fees are
21
reasonable.
22
Petitioner’s Attorney Amy Harrington uses paralegals in her office. Paralegals had an
23

24 hourly rate of $200. Attorney Harrington represents that her paralegals worked 3.40 hours during

25 this period for a total of $680.
26
The services performed by the attorney and paralegals are shown in detail on the billing
27
statement attached hereto as Exhibit “F” and fully incorporated by this reference. It was
28 5
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF REFEREE’S MOTION FOR
APPROVAL OF FINAL REPORT OF SALE
VALERA V. FOPPIANO - CASE NO. SCV-269355
1 appropriate to use the paralegal's services in the particular case because the paralegals’ hourly
2
rate is much less than Attorney Amy Harrington. This resulted in a substantial savings. The total
3
amount requested for the services of the attorney and the paralegal do not exceed the amount
4
appropriate if the attorney had performed the services without the paralegal's assistance. All
5

6 Paralegals at Harrington Law PC are paralegals as defined in Business and Professions Code

7 Section 6450, maintained required continuing education in good standing, and worked under the
8
direction of supervising attorneys at all times.
9
The total requested legal fees for Harrington Law, PC including attorney and paralegal
10
fess is $8,580, which is reasonable.
11

12 IV. BROKER’S COMMISSION

13 Partition Referee requests broker’s commission in the amount of 6% of the purchase
14
price, to be split 3.5% to the Listing Broker Paula Gold-Nocella and 2.5% to the Broker for a
15
successful buyer.
16
V. STATUTORY ATHORITY
17

18 California Code of Civil Procedure section 873.820 provides:

19 The proceeds of sale for any property sold shall be applied in the following order:
20
a. Payment of the expenses of sale;
21
b. Payment of the other costs of partition in whole or in part or to secure any cost of
22
partition later allowed;
23

24 c. Payment of any liens on the property in their order of priority except liens which under

25 the terms of sale are to remain on the property; and
26
d. Distribution of the residue among the parties in proportion to their shares as determined
27
by the court.
28 6
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF REFEREE’S MOTION FOR
APPROVAL OF FINAL REPORT OF SALE
VALERA V. FOPPIANO - CASE NO. SCV-269355
1 VI. DISTRIBUTION OF PROCEEDS OF SALE
2
Partition Referee will submit her final report detailing her proposed distribution of the net
3
proceeds of sale after escrow closes and the exact amount of cash on hand is known. At that time
4
the costs of the partition and other charges and credits can be apportioned between the co-
5

6 owners. Nothing prayed for in this Motion is intended to indicate the ultimate allocation of the

7 fees, costs and reimbursements requested herein.
8
VII. CREDIT BID
9
Partition Referee is informed and believes that the Defendants intend to participate in the
10
overbid process when the within motion is heard. Defendants intend to request that their
11

12 purchase be made by applying the value of the interest in the property to the purchase price. The

13 Referee is filing a Motion for Instructions concerning credit bids contemporaneously with this
14
motion and requests that the Court take judicial notice of those pleadings and any orders that are
15
made thereon.
16
WHEREFORE, Partition Referee Linda Pond prays for an Order of the Court that:
17

18 1. Notice of hearing of this report and motion was given as required by law;

19 2. The Court make an order approving, allowing, and confirming the sale of real
20
property commonly known as 12781 Old Redwood Highway, Healdsburg,
21
California, 95448, APN: 086-110-021 in the County of Sonoma;
22
3. The sale having been legally made and fairly conducted;
23

24 4. The confirmed sale price is not disproportionate to the value of the property;

25 5. The referee having made reasonable efforts to obtain the highest and best price
26
reasonably attainable for the property;
27

28 7
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF REFEREE’S MOTION FOR
APPROVAL OF FINAL REPORT OF SALE
VALERA V. FOPPIANO - CASE NO. SCV-269355
1 6. The sale of real property located at 12781 Old Redwood Highway, Healdsburg,
2
California, 95448, APN: 086-110-021, and more particularly described in the
3
following legal description:
4
COMMENCING AT A 1/2" IRON PIPE FOUND AT THE MOST NORTHERLY
5
CORNER OF THE 1.61 ACRE PARCEL SHOWN ON THAT RECORD OF SURVEY
6 RECORDED IN BOOK 60 OF MAPS AT PAGE 11, SONOMA COUNTY RECORDS;
7
THENCE FROM SAID POINT OF COMMENCEMENT N 65° 27' 50" E 0.31 FEET TO
THE WESTERLY LINE OF FORMER U. S. HIGHWAY 101; THENCE N 24° 33' W
8 ALONG SAID LINE 15.00 FEET TO A 1/2" IRON PIPE SET AT THE POINT OF
9 BEGINNING OF THE PARCEL OF LAND TO BE HEREIN DESCRIBED; THENCE
FROM SAID POINT OF BEGINNING CONTINUING N 24° 33" W ALONG SAID
10 LINE 146.85 FEET TO A 1/2" IRON PIPE SET, FROM WHICH A 6" X 6"
11 CONCRETE MONUMENT FOUND BEARS N 24° 33' W 410.40 FEET; THENCE
LEAVING SAID LINE S 65° 27' W 216.87 FEET TO A 1/2" IRON PIPE SET;
12
THENCE S 24° 31' 10" E 80.06 FEET TO A 1/2" IRON PIPE SET; THENCE N 65° 27'
13 E 68.40 FEET TO A 1/2" IRON PIPE SET; THENCE S 24° 31' 10" E 66.79 FEET TO A
1/2" IRON PIPE SET; THENCE N 65° 27' E 148.55 FEET TO THE POINT OF
14
BEGINNING OF THE PARCEL OF LAND HEREIN DESCRIBED.
15 ALL 1/2" IRON PIPES SET ARE TAGGED LS 3193.
APN: 086-110-021
16

17 Be confirmed to Michael Barnard and Allison Hargrave for the sale price of $850,000.00;
18
7. The Court confirm that this sale is made on an “as is” basis without condition,
19
with no warranties except as to title;
20

21 8. The Court authorize Partition Referee Linda Pond to execute and deliver a

22 conveyance of the real property upon receipt of the consideration for the sale;
23
9. The Court approve and allow the payment of the following from the proceeds of
24
the sale, said sums to be paid out of the gross proceeds of sale:
25
i. To Linda Pond for services as Partition Referee:
26

27 1. Fees in the amount of $91,035.00

28 8
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF REFEREE’S MOTION FOR
APPROVAL OF FINAL REPORT OF SALE
VALERA V. FOPPIANO - CASE NO. SCV-269355
2. Costs in the amount of $475.00;
2
n. To Amy Harrington for services as attorney for the Partition Referee:
3
1. Fees in the amount of $8,580.00;
4
10. Commission to real tors in the amount of 6% of the purchase price to be split
5

6 between the realtors for the seller and the buyer: 3.5% to the Listing Broker Paula

7 Gold-Nocella and 2.5% to the Broker for a successful buyer;
8
11. That the Court take judicial notice of the Referee's Motion for Instructions and
9
any Orders made thereon.
10
12. For such further and other orders this Court deems proper.
11

12 DATED: August 23, 2023

13 Respectfully Submitted,
14

15
By: Jl#"'ff Jl~n.
16 Amy Harrington, Attorney for
17 Court Appointed Partition Referee Linda Pond

28 9
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF REFEREE'S MOTION FOR
APPROVAL OF FINAL REPORT OF SALE
VALERA V. FOPPIANO - CASE NO. SCV-269355
1

10
EXHIBIT “A”
11

12 Order Granting in Part Valera Motion for Summary Adjudication re Interlocutory Judgment for

13 Partition by Sale. Continuing Appointment of Referee
14

26
EXHIBIT “A”
27

28 11
NOTICE OF MOTION AND MOTION FOR REFEREE’S FINAL REPORT OF SALE
VALERA V. FOPPIANO - CASE NO. SCV-269355
1 CARTER RICH PC ELECTRONICALLY FILED
Brian C. Carter, Esq. SBN 139456 Superior Court of California
2 Alexander C. Rich, Esq. SBN 294745 County of Sonoma
Margarita S. Rice, Esq. SBN 337151 10/31/2022 9:09 AM
3 305 N. Main Street Robert Oliver, Clerk of the Court
P.O. Box 1709 By: Jennifer Ellis, Deputy Clerk
4 Ukiah, CA, 95482
bcarter@carterrichpc.com
5 (707) 462-6694
(707) 462-7839 fax
6
Counsel for Plaintiff SUSAN FOPPIANO VALERA
7
8
9
SUPERIOR COURT OF CALIFORNIA
10
COUNTY OF SONOMA
11
12 SUSAN FOPPIANO VALERA, etc., ) Case No. SCV-269355
)
13 Plaintiff, ) Unlimited Civil
)
14 v. ) [Proposed] ORDER GRANTING IN PART
) VALERA MOTION FOR SUMMARY
15 LOUIS M. FOPPIANO, etc., et al., ) ADJUDICATION RE INTERLOCUTORY
) JUDGMENT FOR PARTITION BY SALE,
16 Defendants. ) CONTINUING APPOINTMENT OF
) REFEREE
17
Date: October 14, 2022
18 Time: 3:00 p.m.
Courtroom: 18, Hon. Jennifer V. Dollard
19
20 On October 13, 2022, a tentative ruling was issued pursuant to Sonoma County
21 Superior Court Rule concerning Susan Valera’s motion for summary interlocutory
22 adjudication of her cause of action for partition by sale. No party contested the court’s
23 tentative ruling. Accordingly, it became the final order of the court.
24 IT IS HEREBY ORDERED AS FOLLOWS:
25 Plaintiff’s motion for summary interlocutory adjudication of her cause of action for
26 partition by sale is GRANTED. Plaintiff’s request for judicial notice is GRANTED.
27
Defendants’ objections to Plaintiff’s evidence are OVERRULED. The issue of the
28
appointment of a referee is bifurcated and CONTINUED to January 6, 2023, at 3:00 p.m. in

-1-
ORDER ON PLAINTIFF’S MOTION FOR SUMMARY ADJUDICATION RE
INTERLOCUTORY JUDGMENT FOR PARTITION BY SALE - Case No. SCV-269355
1
Department 18. The parties are directed to engage in further meet and confer efforts for the
2
purpose of agreeing on a referee or submitting the information requested by the Court below.
3
Plaintiff’s counsel shall submit a written order to the Court consistent with this tentative
4
ruling and in compliance with CRC Rule 3.1312.
5
Standards on Summary Judgment Summary adjudication “shall be granted if all the
6
papers submitted show that there is no triable issue as to any material fact and that the moving
7
8 party is entitled to a judgment as a matter of law.” (CCP § 437c(c).)

9 “A plaintiff moving for summary judgment “bears the burden of persuasion that ‘each element

10 of the ‘cause of action’ in question has been ‘proved,’ and hence that ‘there is no defense’
11 thereto.”” (Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1195; citing Aguilar v. Atlantic
12 Richfield Co. (2001) 25 Cal.4th 826, 850.)
13 If a plaintiff meets its initial burden, the burden shifts to the defendant to provide
14 sufficient evidence to raise a triable issue of fact as to the defense asserted. (CCP §
15 437c(p)(1).) An issue of fact exists if “the evidence would allow a reasonable trier of fact to
16 find the underlying fact in favor of the party opposing the motion in accordance with the
17
applicable standard of proof.” (Aguilar, 25 Cal.4th at 845.)
18
Analysis:
19
I. Partition by Sale
20
It is well settled that in the absence of a waiver a joint tenant is entitled as a matter of
21
right to have his interest severed from that of his cotenant.” (Lazzarevich v. Lazzarevich
22
(1952) 39 Cal.2d 48, 50.) “A co-owner of property has an absolute right to partition unless
23
barred by a valid waiver.” (LEG Invs. v. Boxler (2010) 183 Cal.App.4th 484, 493.) “‘[T]he
24
right of partition may be waived by contract, either express or implied.’” (Ibid.)
25
26 “If the court finds that the plaintiff is entitled to partition, it shall make an

27 interlocutory judgment that determines the interests of the parties in the property and orders

28 the partition of the property and, unless it is to be later determined, the manner of partition.”

-2-
ORDER ON PLAINTIFF’S MOTION FOR SUMMARY ADJUDICATION RE
INTERLOCUTORY JUDGMENT FOR PARTITION BY SALE - Case No. SCV-269355
1
(CCP § 872.720(a).) “The court shall order that the property be divided among the parties in
2
accordance with their interests in the property as determined in the interlocutory judgment.
3
(CCP § 872.810.) “In lieu of dividing the property among the parties, the court shall order the
4
property be sold and the proceeds divided among the parties in accordance with their interests
5
in the property if the parties agree to such relief or the court determines sale and division of
6
the proceeds would be more equitable than a division of the property.” (LEG Invs. v. Boxler,
7
8 supra, 183 Cal.App.4th at 493; CCP § 872.820.)

9 “[T]he court shall apportion the costs of partition among the parties in proportion to

10 their interests…” (CCP § 874.040, see CCP 874.010 for included costs of partition.)
11 “An interlocutory judgment in a partition action must include two elements: (1) a
12 determination of the parties' interests in the property and (2) an order granting the partition.
13 The actual manner of the partition (i.e., whether there will be a physical division of the
14 property or a sale of the property with the proceeds divided according to the interests) can be
15 ordered only when or after the parties' ownership is determined, but not before.” (Cal. Civ.
16 Prac. Real Property Litigation § 5:24, Partition actions; Summers v. Superior Court (2018) 24
17
Cal. App. 5th 138, 143, as modified, (June 27, 2018).)
18
Here, Plaintiff requests the Court order that the subject property be partitioned by sale.
19
Defendants do not dispute this. Defendants also do not dispute Plaintiff’s representations
20
regarding each parties’ ownership interest in the property. The Court finds that Plaintiff has
21
met her burden on this motion. Accordingly, the Court orders that the property in question be
22
partitioned by sale. The Court finds that the ownership interests in the property are as follows:
23
1. Susan Foppiano Valera owns 33.3% interest;
24
2. Paul Foppiano owns 20.8% interest.
25
26 3. Gina Hocker owns 12.5% interest; and

27 4. Louis Foppiano and Helaine Foppiano jointly own, as trustees, 33.4 % interest.

28 II. Appointment of a Partition Referee

-3-
ORDER ON PLAINTIFF’S MOTION FOR SUMMARY ADJUDICATION RE
INTERLOCUTORY JUDGMENT FOR PARTITION BY SALE - Case No. SCV-269355
1
Plaintiff requests the Court appoint Tom Larson to act as the partition referee and the
2
listing agent of the property. Defendants have not contested that a partition referee should be
3
appointed. However, Defendants object to Tom Larson being appointed by the Court as the
4
partition referee because the listing agent may not also act as the partition referee. Defendants
5
submit that the partition referee must be a neutral agent.
6
Defendants also submit that there are certain ingress/egress, water, and septic field
7
8 issues which must be resolved by the referee before marketing.

9 Plaintiff has submitted a declaration by Mr. Larson outlining his experience as a real

10 estate agent. Mr. Larson states that he has previously been appointed to serve “as a referee”
11 for the Superior Court in Mendocino County in a matter involving the sale of a winery.
12 However, the declaration does not provide further detail regarding what type of referee Mr.
13 Larson was appointed to act as, nor whether Mr. Larson was also permitted to act as the listing
14 agent in addition to being a partition referee. Regardless, this Court finds that having Mr.
15 Larson act in both roles would create a conflict of interest. The purpose of the referee is to
16 oversee the sale of the property to make sure it occurs in the manner ordered by the Court.
17
(CCP § 873.010).
18
This is different from a listing agent’s role. While the Court declines to appoint Mr.
19
Larson as the partition referee in this matter, there is nothing barring the parties from agreeing
20
to use Mr. Larson as the listing agent.
21
Defendants have provided the names of three other individuals whom they believe
22
would be more suitable as the referee. However, Defendants have not provided the Court with
23
any further information, such as their qualifications, their willingness to act as referee in this
24
matter, their ability to post a bond, their requested compensation, etc. The Court cannot
25
26 appoint any of Defendant’s nominees without such information.

27 Accordingly, the parties are ordered to meet and confer on a nominee for partition

28 referee. If the parties can agree on a nominee, they may submit a joint request for

-4-
ORDER ON PLAINTIFF’S MOTION FOR SUMMARY ADJUDICATION RE
INTERLOCUTORY JUDGMENT FOR PARTITION BY SALE - Case No. SCV-269355
1
appointment, accompanied by the same detailed information outlined below, and a proposed
2
bond amount, as an ex parte. Upon appointing an agreed upon referee, the future hearing date
3
will be vacated.
4
However, if the parties cannot agree on one individual, each party must submit their
5
respective nominations to the Court not less than nine court days prior to the continued
6
hearing date. The parties’ submissions must include adequate information about the
7
8 nominees’ qualifications, compensation requirements, and willingness to act as the referee.

9 Furthermore, the Court will require the referee to post a bond; thus, the nominees must

10 confirm their consent and ability to do so. The parties should also address an appropriate bond
11 amount in their submissions. Contrary to Plaintiff’s request for the referee to be paid based on
12 a percentage of the sale proceeds, the Court will order that the referee be paid on an hourly
13 basis, at a rate which will be set by the Court at the future hearing date.
14
15 IT IS SO ORDERED.
16
17
18
/~
________________________________________________
Honorable Jennifer V. Dollard
Judge of the Superior Court of the State of California, County of Sonoma
19
10/31/2022
20 Dated: _________________________
21
22 Approved as to form:
23
24 /s/ Edward McCutchan_
Edward Mccutchan, Esq.
25 Attorney for Defendants
26
27 Date: October 24, 2022
28

-5-
ORDER ON PLAINTIFF’S MOTION FOR SUMMARY ADJUDICATION RE
INTERLOCUTORY JUDGMENT FOR PARTITION BY SALE - Case No. SCV-269355
1

10
EXHIBIT “B”
11

12 Order After Hearing Appointing Linda Pond Partition Referee

26
EXHIBIT “B”
27

28 12
NOTICE OF MOTION AND MOTION FOR REFEREE’S FINAL REPORT OF SALE
VALERA V. FOPPIANO - CASE NO. SCV-269355
1 Brian J. Clark (SBN 277681)
Gregory P. Wayland (SBN 277437) ELECTRONICALLY FILED
Superior Court of California
2 Roberto G. Cruz (SBN 342729) County of Sonoma
Attorneys Real Estate Group, APC 4/5/2023 11:51 AM
3 905 Highland Pointe Drive, Suite 100 Robert Oliver, Clerk of the Court
Roseville, CA 95678 By: Griselda Zavala, Deputy Clerk
4 Telephone: (916) 671-3138
Email: gwayland@AttorneysRE.com
5

6 Attorneys for Susan Foppiano Valera

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA

9 COUNTY OF SONOMA

10
-oOo-
11 SUSAN FOPPIANO VALERA, an Case No.: SCV-269355
Individual,
12
[PROPOSED] ORDER AFTER HEARING
13 Plaintiff, APPOINTING LINDA POND PARTITION
REFEREE
14 vs.
[C.C.P. §§873.010, et seq.]
15 LOUIS M. FOPPIANO, an individual and as
Trustee of The Helaine Noreen Foppiano and Hg.
16 Louis Michael Foppiano 1997 Trust dated Date: March 29, 2023
December 23, 1997, HELAINE N. Time: 3:00p.m.
17 FOPPIANO, an individual and as Trustee of Dept: 18
The Helaine Noreen Foppiano and Louis
18 Michael Foppiano 1997 Trust dated
December 23, 1997, PAUL Foppiano, an FAC: October 1, 2021
19 individual and as Trustee of the Gina Marie Trial: None Set
Hocker Revocable Trust dated September 25,
20 2015, all persons unknown claiming any
interest in the property, and DOES 1-20,
21
HON. CHRISTOPHER HONIGSBERG
22 Defendants.

23 1 1 - - - - - - - - - - - - - - - - - - - 1 . . - 1 . ._ _ _ _ _ _ _ _ _ _ _ _ _ _ ___JI

24 On Wednesday, March 29, 2023, at 3:00 p.m., the above referenced matter came on

25 regularly for hearing in Department 18 before the Hon. Christopher Honigsberg on motion to

26 appoint a partition referee pursuant to Cal. Code of Civil Procedure §873.010, et seq., the

) )
1 Plaintiff appeared by and through her counsel ofrecord Gregory P. Wayland, Esq., of Attorneys

2 Real Estate Group, APC, the Defendants appeared by and through their counsel of record,

3 Edward Mccutchan of Sunderland McCutchan, LLP.

4 The COURT, having heard argument, adopts its tentative ruling and finds and ORDERS

5 as follows:

6 On October 14, 2022 the Court granted interlocutory adjudication of Plaintiffs cause of

7 action for partition by sale of the subject property and bifurcated the issue of appointment of a

8 partition referee for the parties to submit nominations for the referee. The parties have each

9 submitted their own nominee. The Court notes that Plaintiffs nomination was filed after the

10 deadline set forth in the Court's previous tentative ruling. Nonetheless, Defendants still had

11 sufficient time to, and did in fact, file their objections to the nomination. Thus, the Court

12 exercises its discretion to consider Plaintiffs nomination. The Court has considered each party's

13 objection to the other's nomination.

14 The Court hereby appoints Linda Pond as partition referee for the purpose of selling the

15 real property located at 12781 Old Redwood Highway, Healdsburg, California. Linda Pond shall

16 post a bond of $4,000. The Court finds Linda Pond's hourly rate of $425 to be reasonable. At the

17 conclusion of the sale of the property, Linda Pond shall file a final account and request for

18 discharge.

19 SO ORDERED.

20
April 5, 2023
21 Dated:- -- - - -- -
Hon. Christopher Honigsberg
22 Judge of the Superior Court
County of Sonoma
23
24 1-/-c}_Cb<._-.:5
2
26

! )
) 2
./ ..
1

10
EXHIBIT “C”
11

12 Proof of Publication

26
EXHIBIT “C”
27

28 13
NOTICE OF MOTION AND MOTION FOR REFEREE’S FINAL REPORT OF SALE
VALERA V. FOPPIANO - CASE NO. SCV-269355
This space for County clerk's Filing Stamp
PROOF OF PUBLICATION

(2015.5 C.C.P.)

STATE OF CALIFORNIA
Proof of Publication of
County of Sonoma NOTICE OF INTENTION TO SELL REAL PROPERTY
Case No. SCV-269355
SUPERIOR COURT OF THE STATE OF CALIFORNIA
I am a citizen of the United States and a resident FOR THE COUNTY OF SONOMA
Susan Valera vs. Louis Foppiano et al.
of the county aforesaid: I am over the age of NOTICE IS HEREBY GIVEN that on or before August 10, 2023 at 12:00 p.m., at
Vanguard Properties, 421 Healdsburg Ave, Healdsburg, CA 95448,
eighteen years, and not a party to or interested in Linda Pond, Partition Referee duly appointed in the above-entitled action will sell
the following described real property in the manner and on the terms listed below:
the above entitled matter. I am the principal clerk 1. The real property which is to be sold is located at 12781 Old Redwood Highway,
Healdsburg, California, 95448, APN: 086-110-021, and described more specifi-
of the printer of The Press Democrat, a cally as:
Real property in the unincorporated area of the County of Sonoma, State of
newspaper of general circulation, printed and California, described as follows:
COMMENCING AT A 1/2" IRON PIPE FOUND AT THE MOST NORTHERLY
published DAILY IN THE City of Santa Rosa, CORNER OF THE 1.61 ACRE PARCEL SHOWN ON THAT RECORD OF SURVEY
RECORDED IN BOOK 60 OF MAPS AT PAGE 11, SONOMA COUNTY RECORDS;
County of Sonoma; and which newspaper has THENCE FROM SAID POINT OF COMMENCEMENT N 65° 27' 50" E 0.31 FEET
TO THE WESTERLY LINE OF FORMER U. S. HIGHWAY 101; THENCE N 24° 33'
been adjudged a newspaper of general circulation W ALONG SAID LINE 15.00 FEET TO A 1/2" IRON PIPE SET AT THE POINT OF
BEGINNING OF THE PARCEL OF LAND TO BE HEREIN DESCRIBED; THENCE

by the Superior Court of the County of Sonoma, FROM SAID POINT OF BEGINNING CONTINUING N 24° 33" W ALONG SAID LINE
146.85 FEET TO A 1/ 2" IRON PIPE SET, FROM WHICH A 6" X 6" CONCRETE

State of California, under the date of November
MONUMENT FOUND BEARS N 24 ° 33' W 410.40 FEET; THENCE LEAVING SAID
LINES 65° 27' W 216.87 FEET TO A 1/2" IRON PIPE SET; THENCE S 24° 31' 10" E

29, 1951, Case number 34831, that the notice, of
80.06 FEET TO A 1/2" IRON PIPE SET; THENCE N 65° 27' E 68.40 FEET TO A 1/2"
IRON PIPE SET; THENCE S 24° 31 ' 10" E 66.79 FEET TO A 1/2" IRON PIPE SEl;
THENCE N 65° 27' E 148.55 FEET TO THE POINT OF BEGINNING OF THE PARCEL
which the annexed is a printed copy (set in type OF LAND HEREIN DESCRIBED.
ALL 1 /2" IRON PIPES SET ARE TAGGED LS 3193.
not smaller than nonpareil), has been published in APN: 086-110-021
The property will be sold at private sale and bids or offers shall be sealed, in
each regular and entire issue of said newspaper writing and delivered to: LINDA POND, c/o Paula R. Gold-Nocella, Vanguard
Properties, 421 Healdsburg Ave, Healdsburg, CA 95448, marked "SEALED BID,
and not in any supplement thereof on the PARTITION SALE, OPEN ON BID DATE ONLY". Bids will be received up to 12:00
p.m. on August 10, 2023.
following dates to wit: The property is being offered at $900,000.00. All bids shall include a 3% deposit
for the bid amount payable to check to First American Title Company. Prospective
bidders refer to section 701.510 to 701.680 inclusive of the code of Civil Procedure
for provisions governing the terms, conditions and effect of the sale and the
The Press Democrat - Legal Notices liability of defaulting bidders. The principal terms of sale may be reviewed at the
office of Vanguard Realty, 421 Healdsburg Ave, Healdsburg, CA 95448, Phone:
(707) 292-7505, Email: paula@paulagoldnocella.com .
8/3, 8/6, 8/9 - 8/9/2023 The conditions of the sale are as follows: A The property is being offered "as
is", without condition, representation, warranty or covenant of any kind, express
or implied. All submitted offers must strictly comply with the terms herein.
Prospective buyer(s) should not submit offers containing any additional terms.
The property will be sold for cash or for a combination of cash or such credit
terms and conditions as the Court may approve; B. No personal property is to be
included; C. Deposit of three percent (3%) of the amount bid must accompany the
I certify (or declare) under penalty of perjury, offer. Balance to be paid on or before forty-five (45) days after the confirmation
of the sale by the above Court. D. Subject to the right of the Partition Referee
under the laws of the State of California, that the to accept or reject any or all bids received. If no acceptable offer is received
at the bid opening, offers may be considered on a first come first serve basis.
foregoing is true and correct. E. Arrangements for inspection of said property may be made through Paula R.
Gold-Nocella (LI C # 01104492), Vanguard Properties, Phone: (707) 292- 7505, which
has entered into an Exclusive Listing Agreement with the Partition Referee. F.
Commission, if any, subject to approval by the Superior Court and to be paid
Dated at Santa Rosa, California, on only out of proceeds of sale. G. No signs are to be posted except as authorized
in writing by the Partition Referee. H. Fees for examination of title, recording
of conveyance, transfer taxes, escrow charges and any title insurance policy
shall be paid entirely by purchaser(s). I. Subject to tenants' rights under local

Aug 9, 2023 Rent Control Ordinances, if any. J. Escrow to be handled by First American Title
Company, Leslie Hanes, Escrow Officer, 627 College Avenue Santa Rosa, CA
95404, telephone: (707) 577-1130; fax: (866) 877-1532. K. Information given herein
is believed to be correct, but there is no warranty expressed or implied as to the
correctness of any statements herein set forth.
Dated: July 31, 2023
/S/ LINDA POND
175 E. Main Ave #130
Morgan Hill, CA 95037
SIGNATURE Tel: (408) 476-7280
Em a ii: lindapo nd .rea lesta te@yahoo.com
174337 - Pub Aug 3, 6, 9, 2023 3ti.

The Press Democrat 5/14/19
1

10
EXHIBIT “D”
11

12 Purchase Agreement

26
EXHIBIT “D”
27

28 14
NOTICE OF MOTION AND MOTION FOR REFEREE’S FINAL REPORT OF SALE
VALERA V. FOPPIANO - CASE NO. SCV-269355
DocuSi~ Envelope~~~~ :~o:!::-401 B-4F99-86D3-AB3CF5823DB1., 1.>C LOSU RE REGARDING
• - - ASSOCIATION REAL ESTATE AGENCY RELATIONSHIP
' ~ OF REALTORS® (As required by the Civil Code)
..,,. (C.A.R. Form AD, Revised 12/21)

0 (If checked) This form is being provided in connection with a transaction for a leasehold interest exceeding one year as per Civil
Code section 2079.130), (k), and (I).
When you enter into a discussion with a real estate agent regarding a real estate transaction, you should from the outset understand
what type of agency relationship or representation you wish to have with the agent in the transaction.
SELLER'S AGENT
A Seller's agent under a listing agreement with the Seller acts as the agent for the Seller only. A Seller's agent or a subagent of that
agent has the following affirmative obligations:
To the Seller: A Fiduciary duty of utmost care, integrity, honesty and loyalty in dealings with the Seller.
To the Buyer and the Seller:
(a) Diligent exercise of reasonable skill and care in performance of the agent's duties.
(b) A duty of honest and fair dealing and good faith.
(c) A duty to disclose all facts known to the agent materially affecting the value or desirability of the property that are not known to,
or within the diligent attention and observation of, the parties. An agent is not obligated to reveal to either party any confidential
information obtained from the other party that does not involve the affirmative duties set forth above.
BUYER'S AGENT
A Buyer's agent can, with a Buyer's consent, agree to act as agent for the Buyer only. In these situations, the agent is not the Seller's
agent, even if by agreement the agent may receive compensation for services rendered, either in full or in part from the Seller. An agent
acting only for a Buyer has the following

Case Info

Judge

Honigsberg, Christopher M. Track Judge’s New Case

Case No.

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Document Filed Date

August 29, 2023

Case Filing Date

September 22, 2021

County

Parties

All persons unknown claiming any interest in the property Defendant
Carter, Brian Charles Attorney for the Plaintiff
De Martini, James F. Attorney for the Plaintiff
Foppiano, Helaine N Defendant
Foppiano, Louis M Defendant
Foppiano, Paul Defendant
Hocker, Gina M Defendant
MCCUTCHAN, B. EDWARD, JR Attorney for the Defendant
Valera, Susan Foppiano Plaintiff
WAYLAND, GREGORY Attorney for the Plaintiff
David Berry Attorney
Monica Lehre Attorney
Brian Clark Attorneys for Plaintiffs
Roberto Cruz
Amy Harrington Attorneys for Plaintiffs
Alexander Rich Attorneys for Plaintiffs
Margarita Rice Attorneys for Plaintiffs
William Labarge Attorney
Edward McCutchen Attorney
Louis Foglia Attorneys for Defendants
Leonard Berger Attorneys for Defendants
Gary Vannelli Attorneys for Defendants
Elizabeth Fritzinger Attorney
Ryan Reyes Attorneys for Plaintiffs
Michael Baraban Attorney

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