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1 Michael J. Fish, Esq. SBN 98161
ANDER SON ZEIGLE R
2 A Professio nal Corpora tion th
50 Old Courtho use Square, 5 Floor
3 Santa Rosa, CA 95404
Telephone: 707/545-491 0
4 Facsimile: 707/544 -0260
Email: mfish(ci),a ndersonz ei_gler.com
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Attorneys for Plaintiff
6 OLIVIA PIAZZA
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SONOMA
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OLIVIA PIAZZA, Case No. SCV-270969
Plaintiff, [Unlimited Civil Action]
vs.
DECLARATION OF MICHAEL
EUGENE PIAZZA, and J. FISH IN SUPPORT OF
ALL PERSONS UNKNOWN, CLAIMING PLAINTIFF'S OPPOSITION TO
ANY LEGAL OR EQUITABLE RIGHT, EX PARTE APPLICATION TO
TITLE, ESTATE, LIEN, OR INTEREST IN REPLACE REFEREE
THE PROPER TY DESCRIBED IN THE [CCP &873.0l0(b)] AND
COMPLAINT ADVERSE TO MEMORANDUM OF POINTS
PLAINTIFF'S TITLE, OR ANY CLOUD AND AUTHORITIES
ON PLAINT IFF'S TITLE THERETO and
DOES I through 50, inclusive, Date: November 21, 2023
Time: 10:30 a.m.
Defendants. Dept: 17
I Judge: Hon. Bradford DeMeo
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AND RELATED CROSS-ACTION Trial: Not Set
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21 MICHA EL J. FISH, hereby declares as follows:
22 1. I am the attorney for Plaintiff OLIVIA PIAZZA. I am duly admitted to practice
23 before this Honorab le Court. I make this declarati on of my own personal knowled ge
24 and if called as a witness, could compete ntly testify as to the contents hereof.
25 2. From the very beginnin g of current opposing counsel' s represen tation of
26 Defenda nt Eugene Piazza and Cross-C omplain ant Victoria Williams , he has taken a
27 "scorche d earth" approach of over litigating this matter, quickly eating up with
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DECLARATION OF MICHAEL J. FISH IN SUPPORT OF PLAINTIFF'S OPPOSITION TO EX PARTE
APPLICATION TO REPLACE REFEREE
[CCP § 873.0IO(b)] AND MEMORANDUM OF POINTS AND AUTHORITIES
1 accompa nying attorney s' fees any equity that might be left in the property for the
2 parties after an accounti ng for reimburs ements and satisfact ion of respectiv e claims has
3 been made.
4 3. The real property in this matter was purchase d in October 2020 for $615,000. It
5 has increased in value to at least $740,000 with a loan balance that has decrease d with
6 payment s thereon. Defenda nts and Cross-C omplain ants have financial ly benefited, not
7 suffered, from the time it has taken to get this point.
8 4. Additionally, Defenda nts and Cross-C omplain ants' claim for loss of rental
9 income carries no weight to their claims that they are being prejudic ed. Defenda nts and
IO Cross-C omplain ants have had exclusiv e possessi on and control of this property since
11 early 2022, when Defenda nt Eugene Piazza was accused of domestic violence by
12 Plaintiff. She had to move out of the property to protect her and her family. A
13 Temporary Restrain ing Order ("TRO") was issued and ultimate ly a trial held on that
14 matter. During the course of the trial, not only was it determin ed that a domestic
15 violence retrainin g would be issued, but it was determin ed that Eugene Piazza violated
16 the TRO that was in place, and he was immedia tely taken into custody. He was
17 thereafte r charged by the District Attorney 's Office for violating the TRO. The criminal
18 court entered a Protectiv e Order on August 31, 2022. The effect of those restraining
19 orders was to bar Plaintiff from any use or enjoyme nt of the real property .
20 5. Furtherm ore, on Novemb er 9, 2022 all of the parties agreed to settle this matter
21 during mediatio n. As a part of that Agreeme nt, the parties agreed that the Defenda nts
22 and Cross-C omplain ants would continue to make payment s on the home, since they
23 were living in it, until the remainin g terms of the Mediatio n Agreem ent could be
24 complied with. Defenda nts and Cross-C omplain ants continue d to live in that property
25 until early Septemb er 2023, when they vacated the property since they could not
26 perform under the terms of their agreement.
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DECLARATION OF MICHAEL J. FISH IN SUPPORT OF PLAINTIF F'S OPPOSITION TO EX PARTE
APPLICATION TO REPLACE REFEREE
[CCP § 873.0I0(b)] AND MEMORANDUM OF POINTS AND AUTHORITIES
6. Early after the Interlocu tory Judgmen t in this matter appointi ng Michael
2 Pecherer as referee was filed on June 13, 2023, the parties voluntar ily consente d to and
3 participa ted in settleme nt discussio ns and negotiati ons through the referee. When it
4 seemed settleme nt was improba ble, Plaintiff made a written offer to purchase the
5 property.
6 7. It is Plaintiff 's position that the parties' joint participa tion in settleme nt
7 discussions caused them to delay iri the listing of the property for sale, with the
8 understa nding that Plaintiff was going to purchase it from the other parties.
9 8. After settleme nt failed, Plaintiff made an offer to the Referee to purchase the
IO property and was informed that the offer was insuffici ent and, through the Referee' s
11 efforts, Plaintiff increase d her offer to at or above what the fair market value of the
12 property truly is, as reflected in the Report of Referee attached to his Request for
13 Confirm ation of Sale (attached hereto as Exhibit A).
14 9. Of addition al concern to Plaintiff, is that Defenda nts and Cross-C omplain ants
15 request the appointm ent of a new referee. This is of substant ial concern to Plaintiff.
16 10. It is Plaintiff s position that the confirma tion of sale needs to take place and that a
17 new referee should not be substitut ed in place of the current referee, or until at least the
18 confirma tion of sale is heard by this court.
19 11. Plaintiff addition ally requests denial of the Ex Parte request for relief for failure
20 to show irreparab le harm or immedia te danger to the opposing parties.
21 12. Furtherm ore, Plaintiff fervently objects to the appointm ent of Amy Harrington.
22 It appears to Plaintiff that Defenda nts and Cross-C omplain ants have merely shopped
23 around for a referee that will serve their own individu al purposes . This Plaintiff has no
24 confiden ce in the new referee being proposed by opposing parties.
25 III
26 III
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DECLARATION OF MICHAEL J. FISH IN SUPPORT OF PLAINTIFF'S OPPOSITION TO EX PARTE
APPLICATION TO REPLACE REFEREE
[CCP § 873.0l0(b)] AND MEMORANDUM OF POINTS AND AUTHORITIES
I declare under penalty of perjury on this 20 th day of November 2023, under the
2 laws of the State of California that the foregoing is true and correct.
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By: Ad?/4
..:::--Michael J. Fish
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DECLARATION OF MICHAEL J. FISH IN SUPPORT OF PLAINTIFF'S OPPOSITION TO EX PARTE
APPLICATION TO REPLACE REFEREE
[CCP § 873.0lO(b)] AND MEMORANDUM OF POINTS AND AUTHORITIES
MEMOR ANDUM OF POINTS AND AUTHORITIES
2 A. Defenda nts and Cross-C omplain ants Request for Ex Parte Relief Must Fail
Due to a Lack of Showing of "Good Cause."
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The application for ex parte relief must be accompanied by a declaration containing an
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"affirmative factual showing" consisting of "competent testimony based on personal knowledge
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of irreparable harm, immediate danger or any other statutory basis for granting relief ex parte."
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[CRC 3.1202(c) (emphasis added); Newsom v. Sup.Ct. (Gallagher) (2020) 50 CA5th 1093, 1097,
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265 CR3d 582, 585-tria l court should deny relief absent this showing, particularly when party
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seeks temporary restraining order on expedited basis]. In this matter, the only harm claimed by
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Defendants and Cross-Complainants is the loss of rental income. If this were true, this is
compensable. However, there has been no affirmative factual showing based upon personal
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knowledge if irreparable harm by Defendants and Cross-Complainants that the property could
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have been rented for a short period pending sale. It is probable that entering in any such rental
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agreement would instead hinder any sale and have a negative impact on any valid offer.
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Additionally, due process requires adequate notice and opportunity to be heard on any
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motion that affects the rights of the opposing party. At a minimum, this matter should be heard
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as a noticed motion and not an ex parte request.
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Based on the foregoing, Defendants and Cross-Complainants Eugene Piazza and Victoria
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Williams request for termination of Referee Michael Pecherer be denied. Plaintiff further
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requests that opposing parties' request for appointment of Arny Harrington as a new referee be
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denied.
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Respectfully submitted,
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1:1:ichael J. Fish, Attorney for Plaintiff
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DECLARATION OF MICHAEL J. FISH IN SUPPORT OF PLAINTIF F'S OPPOSITI ON TO EX PARTE
APPLICATION TO REPLACE REFEREE
[CCP § 873.0lO(b) ] AND MEMORANDUM OF POINTS AND AUTHORITIES
EXHIBIT
A
1 MICHAELS. PECHERER, (SBN 47053)
24 Rio Vista
2
Orinda, CA 94563
3 925-386-0943/ Cell: 925-518-7076 (Please use cell).
michaelra; pecherer.com
4
REFEREE IN PARTITION
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7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 IN AND FOR THE COUNTY OF SONOMA
9
OLIVIA PIAZZA, AN INDIVIDUAL, Case No.: SCV 270969
Plaintiff,
11 MOTION FOR ORDER CONFIRMING THE
vs. PARTITION SALE OF REAL PROPERTY
12
13 EUGENE PIAZZA, ET AL., Dept: 17:
Time:
14 Defendants. Date:
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MICHAELS. PECHERER, the Court appointed Referee in Partition in this
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17 matter does hereby move this Honorable Court for an Order Confirming the Partition Sale of
li:1
: 18 Real Property. Said Motion will be based upon the Report of the Referee, the Memorandum of
:
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Points and Authorities and the [proposed] Order all submitted herewith together with the files
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and records ofthis action.
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DATED: November 16, 2023
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Michael S. Pecherer
25 Referee in Partition
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MOTION FOR ORDER CONFIRMING THE PARTITION SALE OF REAL PROPERTY - 1
1 DECLARATION OF SERVICE BY EMAIL
2 MICHAELS. PECHERER, hereby declares and states:
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On November 16, 2023, I served the documents listed below on the Parties to the
4 within matter by emailing true and correct copies thereof to their respective counsel as follows'
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To the Plaintiff: mfish@andersonzeigler.com
To the Defendants: ABentivegna@joh nstonassociate slaw.com
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7 DOCUMENTS:
8 Motion for Order Confirming the Partition Sale of Real Property
Report of "Referee in Support of Motion to Confmn Partition Sale of Real
9 Property
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Memorandum of Points and Authorities in Support of Motion to Confmn
Partition Sale of Real Property
11 [proposed] Order Confirming the Partition Sale of Real Property
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I declare under penalty of perjury under the laws of the State of California that th
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foregoing is true and correct.
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Executed at Orinda, California on November 16, 2023
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18 Michael S. Pecherer
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MOTION FOR ORDER CONFIRMING THE PARTITION SALE OF REAL PROPERTY - 2
I MICHAELS. PECHERER, (SBN 47053)
24 Rio Vista
2
Orinda, CA 94563
3 925-386-0943/ Cell: 925-518-7076 (Please use cell).
michacl {a :pecherer. com
4
REFEREE IN PARTITION
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9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SONOMA
11
OLIVIA PIAZZA, AN INDIVIDUAL, Case No.: SCV 270969
12
13
Plaintiff,
MEMORANDUM OF POINTS AND
14 vs. AUTHORITIES IN SUPPORT OF MOTION
15 TO CONFIRM PARTITION SALE OF REAL
EUGENE PIAZZA, ET AL., PROPERTY
16
Defendants.
17
18 I
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PRELIMINARY STATEMENT
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This is a dispute among family members regarding a single family residence located at in
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Rohnert Park. at 7541 Windward Drive (the "Property"). The Property is one of many similar
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23 houses in a recently built subdivision. The lot is small with little ·outdoor space.
24 The Parties made various ownership claims which were resolved by the Interlocutory
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Judgment. This action sought to partition the Property by sale. This Court issued an
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Interlocutory Judgment of Partition on June 23, 2023 ordering the Property partitioned by sale
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28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO CONFIRM PARTITION
SALE OF REAL PROPERTY - 1
that
and appointing Michael S. Pecherer as Referee. The Interlocutory Judgement contemplated
2
the Property would be conventionally listed for sale.
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In the meanwhile, the Parties have engaged in sporadic negotiations to resolve the matter
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as will be discussed below.
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6 There is an existing mortgage of approximately $570,000. The Plaintiff has been making
7 the mortgage payments while this matter has been pending.
There has been no appraisal of the Property. However, as shown in the Referee 's Report
8
9 at
filed herewith, and based upon an analysis of comparative sales, the market value is somewh
less than $800,000. As noted, the average of the three most commonly used valuation websites
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12 is $790,216. The value based upon an analysis of recent sales of other properties within the
13 same subdivision results in a valuation of $776,540.00.
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Since the entry of the Interlocutory Judgment, the Plaintiff has been attempting to
15 by
negotiate a buyout of the Defendants' interests but there has not been a constructive response
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the
the Defendants. As a result, the Plaintiff has submitted an offer to the Referee to purchase
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18 Defendants' interests in the Property. That offer is described in detail in the Referee 's Report.
19 That offer is based upon a purchase price of $800,000; has a provision for an offset for the
commission that would have been incurred had the Property been conventionally listed; and
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The
defers the resolution of the economic disputes between the Parties until a formal hearing.
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Referee has filed this Motion to confirm a sale to the Plaintiff on the proffered terms and
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24 conditions.
25 II
THE PROPOSED BUYOUT IS CONSISTENT WITH CURRENT PARTITION LAW
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PARTITION
28 MEMORANDUM OF POINTS AND AUIBOR ITIES IN SUPPORT OF MOTION TO CONFIRM
SALE OF REAL PROPERTY - 2
On January 1, 2023, the Legislature adopted the Partition of Real Property Act (the
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"Act") which addressed a number of issues that consistently arise in partition actions among
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tenants-in-common. The primary issue addressed is the perceived unfairness of forcing all
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tenants-in-common to sell their interest when one or more wishes to purchase the interests of the
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6 dissenters and has the necessary financial capacity. Prior law forced the sale of the entire
7 property and required that any existing tenant-in-common bid against the public if they wished t
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retain ownership.
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The Act sets up a process whereby the Court determines the value of the property either
on the basis of an appraisal or through other means, and the party wishing to buy out the other
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12 tenants-in-common is given that right based on the value as so determined.
13 The Act only applies to Partition actions filed on or after January 1, 2023 (C.C.P.
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§874.311 and technically does not apply to this matter as the complaint here was filed on June 8,
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2022. Nevertheless, this Court sits in equity and allowing one co-tenant to purchase the interests
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of the other co-tenants is an equitable solution particularly when the proposed purchase is at fair
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18 market value, where feasibility is not an issue, and where a prompt sale is likely to occur.
19 The offer before the Court is fully equivalent to a third party offer at $800,000. It will
20 produce the identical net proceeds from the Defendant's point of view. It specifically requests
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that the Court set a hearing date at which the Court will resolve all claims to the sale proceeds. I
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is submitted that the Plaintiff's offer is fair, just, and equitable.
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28 :tvlEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO CONFIRM PARTITION
SALE OF REAL PROPERTY - 3
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2 CONCLUSION
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The Plaintiffs offer, if confirmed, will bring this matter to a prompt conclusion on a fair
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and equitable basis. The Plaintiff has the capacity to close the transaction and can assume the
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6 existing mortgage with the consent of the Defendants. Given the current market conditions, and
7 the recent history of sales within this subdivision, the proposal is at market value. The Court
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should confirm the proposed sale.
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Dated: November 16, 2023
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Respectfully submitted,
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Michael S. Pecherer
17 Referee in Partition
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28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO CONFIRM PARTITION
SALE OF REAL PROPERTY - 4
1 MICHAELS. PECHERER, (SBN 47053)
24 Rio Vista
2
Orinda, CA 94563
3 925-386-0943/ Cell: 925-518-7076 (Please use cell).
michaelra)pecherer.com
4
REFEREE IN PARTITION
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SONOMA
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OLIVIA PIAZZA, AN INDIVIDUAL, Case No.: SCV 270969
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Plaintiff,
REPORT OF REFEREE IN SUPPORT OF
14 vs. MOTION TO CONFIRM PARTITION SALE
15 OF REAL PROPERTY
EUGENE PIAZZA, ET AL. ,
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Defendants.
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MICHAELS. PECHERER, hereby declares and states:
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19 1. I am an attorney duly admitted to practice before this Honorable Court. I make this
20 Declaration of my own personal knowledge and if called as a witness, I could competently testif
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as to the factual contents hereof. I have expressed my opinion as to certain matters relevant and
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material to the subject hereof and I state that those opinions are based upon my understanding of
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the facts herein and upon my experience serving as a partition referee in nearly 300 cases.
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25 2. My entire practice involves serving as a Partition Referee. I have served in
26 approximately 300 cases involving a variety of real estate properties. I am presently serving as a
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Partition Referee in six cases involving a total of sixteen properties.
28 REPORT OF REFEREE IN SUPPORT OF MOTION TO CONFIRM PARTITTON SALE OF REAL PROPERTY
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1 3. This is a motion to confirm the sale of the Defendant's interest in the Property to the
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Plaintiff.
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4. The instant case involves an intra-family dispute over a single family residence located in
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what is often referred to as a "cookie cutter" residential development. The address is 7541
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6 Windward Drive in Rohnert Park (the "Property"). The Property is located on a small lot with a
7 approximately five foot wide rear yard and similarly narrow side yards. There is little usable
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outdoor space. The house had four bedrooms and three bathrooms and contains 1,894 square
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feet. All the homes in this subdivision differ in size, and are essentially of the same construction.
5. I have visited the house first in the company of Defendant Eugene Piazza and again in
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12 early November with Crystal Davis of Vanguard Properties. Ms. Davis is a Realtor who is
13 familiar with this subdivision and has assisted me in analyzing the likely market value of the
14 Property and the likely duration of "time-on-market" in the event that the Property was
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conventionally listed.
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6. The Property is in reasonably good condition. There is no landscaping in the small rear
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18 yard and the interior has intermediate quality appliances, floor coverings, and bathroom fixtures.
19 7. During 2023, there were three sales of properties within this subdivision as follows:
20 DATE BEDROOM/BAT SQUARE SALES PER SQ.
ADDRESS OFSALE H FEET PRICE FOOT
21 $760,000.0
7610 Wildrose
22 1/17/2023 4/3 1,894 0 $401.00
Way
7521 Windward $870,000.0
23 7/3/2023 4/3 2,215 0 $393 .00
Drive
7484 Wendy $825,000.0
24 0 $437.00
Way 3/21/2023 3/3 1,888
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26 The average of these three sales is $410 per square foot. Applying that average to the
8.
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Property would result in a market value of $776,540.00.
28 REPORT OF REFEREE IN SUPPORT OF MOTION TO CONFIRM PARTITION SALE OF REAL PROPERTY
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1 9. As of the date ofthis Report, there are two active listings in this development which is
2 7479 Waverly Place which is a four bedroom/three bath house of 2,238 square feet. It is listed at
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$885,000 or $395 per square foot. This property apparently has beet). on the market for four
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months. There is another listing for 1828 Waverly Place at $885,000, which contains 2,238
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6 square feet and is a 4/3. The price also equates to $395 per square foot.
7 10. Redfin estimates the market value of the Property at $806,000. Zillow's estimate is
8 $757,700. Realtor.com estimates the value at $806,950. The average of these three estimates is
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$790,216.
11. Any sale to a third party would involve a real estate commission, inspections, and the
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12 probability of some repair costs to the sellers.
13 12. While this matter has been pending, the Plaintiff has sought to resolve the dispute by
14 purchasing the Defendants' interests. The Referee also submitted a settlement proposal that
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would result in the Plaintiffs purchase of the Defendants' interests. There have been no
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constructive responses by the Defendants, who, through their counsel, have demanded that the
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18 Property be listed with a local broker.
19 13. The Plaintiff has submitted to the Referee, a written offer to purchase the interests of the
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Defendants which contains the following provisions:
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A. Purchase price based upon an overall valuation of $800,000.
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B. The transfer will occur through Fidelity National Title Insurance Company. Title and
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escrow fees will be allocated in the ordinary fashion for Sonoma County.
25 C. Purchase is conditioned on the Plaintiffs ability to assume the existing mortgage
26 which can be accomplished with the written consent of the Defendant obligors. The
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loan balance is approximately $570,000.
28 REPORT OF REFEREE IN SUPPORT OF MOTION TO CONFIRM PARTITION SALE OF REAL PROPERTY
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D. The purchase price will be reduced by 5% which would have been the real estate
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commission had the Property been conventionally listed.
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E. The purchase price will also be reduced by $14,000 payable by Plaintiff to Victoria
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Williams who will provide into the escrow a complete release of the Plaintiff, from
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6 any and all claims arising from the purchase and ownership of the Property and a
7 dismissal of her cross-complaint. The complaint in this matter will also be dismissed
8 once the Court has determined the allocation of the sale proceeds and the sale has
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closed.
F. Upon confirmation, the foregoing will be restated on the typical CAR forms or an
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12 equivalent.
13 G. Based on the foregoing, the Plaintiff will deposit into escrow the total sum of
14 $176,000 (+/-) adjusted for the Plaintiff's and Defendant's respective shares of the
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title and escrow costs as follows: Plaintiff will deposit $20,000 into escrow within
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three days of confirmation. The balance in excess of the earnest money deposit will
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18 be deposited in time for a scheduled closing.
19 H. Prior to the closing of the transaction, the Court will determine the allocation of the
20 proceeds among the Parties which shall include any equitable reallocations, if any;
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the Referee's fees, attorneys' fees; and any reimbursements for the payment of
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expenses relating to the Property.
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24 14. It is my opinion, based upon my experience in managing several hundred partition sales
25 and many more real property sales over the past 52 years of law practice that the Plaintiff's offe,
26 should be confirmed. There are numerous advantages. Based upon the sources quoted above,
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the proposed price is at or above the market value. There is financing in place once the existing
28 REPORT OF REFEREE IN SUPPORT OF MOTION TO CONFIRM PARTITION SALE OF REAL PROPERTY
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mortgage is assumed. The transaction can close promptly as soon as the Court determines the
2 appropriate allocations. This resolution is consistent with the 2023 amendments to the Partitio
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of Real Property statutes which facilitate the purchase the dissident interests by the existing co-
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tenants. I will discuss this in the accompanying Memorandum of Points and Authorities.
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6 15. The Court should be aware that there have been ongoing negotiations to resolve this
7 matter and that the entire costs of maintaining the Property during the pendency of this matter
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have been paid by the Plaintiff. The Plaintiff has made prior purchase proposals and I have
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submitted to counsel a proposal that would resolve the entire matter. There have been no
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constructive responses.
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12 I declare under penalty of perjury under the laws of the State of California that the
13 foregoing is true and correct.
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Executed at Orinda, California on November 16, 2023.
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Michael S. Pecherer
19 Referee in Partition
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28 REPORT OF REFEREE IN SUPPORT OF MOTION TO CONFIRM PARTITION SALE OF REAL PROPERTY
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1 PROOF OF SERVICE
2 I, the undersigned, declare:
3 I am employed in the County of Sonoma, State of California. I am over the age of
eighteen years and notth a party to the within cause; my business address is 50 Old
4 Courthouse Square, 5 Floor, Santa Rosa, California 95404.
5 On the date stated below, I caused to be served in the manner indicated the
foregoing
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DECLARATION OF MICHAEL J. FISH IN SUPPORT OF PLAINTIFF'S
7 OPPOSITION TO EX PARTE APPLICATION TO REPLACE REFEREE
[CCP § 873.0l0(b))
8
on the parties involved addressed as follows:
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Anthony Bentivegna, Esq. Attorneys for Defendants/Cross-
10 Johnston & Associates Complainants
1400 N Dutton A venue, Ste. 21 EUGENE PIAZZA AND VICTORY
11 Santa Rosa, CA 95401 WILLIAMS
abentive gna@johnstonthomas.com
12 kpena@ johnstonassociateslaw.com
13 Michael Pecherer, Referee
mpecherer@gmail.com
14
[ ] BY MAIL on the following party(ies) in said action, in accordance with CCP §
15 10l 3(a), by placing a true copy thereof enclosed in a sealed envelope in a
designated area for outgoing mail, addressed as set forth above. In the ordinary
16 course of business at the Law Offices of Merrill, Arnone & Jones, LLP, mail
placed in that designated area is given the correct amount ofpostage, and is
17 deposited that same day in a United States mailbox in the city ofSanta Rosa,
California.
18
[ X J BY ELECT RONIC MAIL: My electronic business address is
19 ksfarzo@andersonzeigler.com, and I caused such document(s) to be electronically
served to those parties listed above. The file transmission was reported complete
20 and a copy will be maintained with the documents in our office.
21 [ ] BY OVERN IGHT DELIVE RY on the followin g party(ies) in said action, in
accordance with CCP f 1013 (c), by placing a true copy thereof enclosed in a
22 sealed envelope, with delivery fees paid orprovid ed Jor, in a clesignated art?a for
outgoing overnight mail, addressed as set Jorth below. _In the ordinary course of
23 business at the Law Offices of Merrill, Arnone & Jones, LLP, mail placed in that
designated area is picked up that same dayfor delivery the following business day.
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I declare under penalty of perjury under the laws of the State of California that the
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l __p){)._ }l, 0
for~going is true and correct. Executed on November 20, 2023, at Santa Rosa,.._
~~o
26 Cahfomta.
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PROOF OF SERVICE
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1 Michael J. Fish, Esq. SBN 98161 ANDER SON ZEIGLE R 2 A Professio nal Corpora tion th 50 Old Courtho use Square, 5 Floor 3 Santa Rosa, CA 95404 Telephone: 707/545-491 0 4 Facsimile: 707/544 -0260 Email: mfish(ci),a ndersonz ei_gler.com 5 Attorneys for Plaintiff 6 OLIVIA PIAZZA 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 COUNTY OF SONOMA 9 OLIVIA PIAZZA, Case No. SCV-270969 Plaintiff, [Unlimited Civil Action] vs. DECLARATION OF MICHAEL EUGENE PIAZZA, and J. FISH IN SUPPORT OF ALL PERSONS UNKNOWN, CLAIMING PLAINTIFF'S OPPOSITION TO ANY LEGAL OR EQUITABLE RIGHT, EX PARTE APPLICATION TO TITLE, ESTATE, LIEN, OR INTEREST IN REPLACE REFEREE THE PROPER TY DESCRIBED IN THE [CCP &873.0l0(b)] AND COMPLAINT ADVERSE TO MEMORANDUM OF POINTS PLAINTIFF'S TITLE, OR ANY CLOUD AND AUTHORITIES ON PLAINT IFF'S TITLE THERETO and DOES I through 50, inclusive, Date: November 21, 2023 Time: 10:30 a.m. Defendants. Dept: 17 I Judge: Hon. Bradford DeMeo 18 - - - - - - - - - - - - - - - AND RELATED CROSS-ACTION Trial: Not Set 19 I 20 - - - - - - - -- -- - - - - 21 MICHA EL J. FISH, hereby declares as follows: 22 1. I am the attorney for Plaintiff OLIVIA PIAZZA. I am duly admitted to practice 23 before this Honorab le Court. I make this declarati on of my own personal knowled ge 24 and if called as a witness, could compete ntly testify as to the contents hereof. 25 2. From the very beginnin g of current opposing counsel' s represen tation of 26 Defenda nt Eugene Piazza and Cross-C omplain ant Victoria Williams , he has taken a 27 "scorche d earth" approach of over litigating this matter, quickly eating up with 1 28 DECLARATION OF MICHAEL J. FISH IN SUPPORT OF PLAINTIFF'S OPPOSITION TO EX PARTE APPLICATION TO REPLACE REFEREE [CCP § 873.0IO(b)] AND MEMORANDUM OF POINTS AND AUTHORITIES 1 accompa nying attorney s' fees any equity that might be left in the property for the 2 parties after an accounti ng for reimburs ements and satisfact ion of respectiv e claims has 3 been made. 4 3. The real property in this matter was purchase d in October 2020 for $615,000. It 5 has increased in value to at least $740,000 with a loan balance that has decrease d with 6 payment s thereon. Defenda nts and Cross-C omplain ants have financial ly benefited, not 7 suffered, from the time it has taken to get this point. 8 4. Additionally, Defenda nts and Cross-C omplain ants' claim for loss of rental 9 income carries no weight to their claims that they are being prejudic ed. Defenda nts and IO Cross-C omplain ants have had exclusiv e possessi on and control of this property since 11 early 2022, when Defenda nt Eugene Piazza was accused of domestic violence by 12 Plaintiff. She had to move out of the property to protect her and her family. A 13 Temporary Restrain ing Order ("TRO") was issued and ultimate ly a trial held on that 14 matter. During the course of the trial, not only was it determin ed that a domestic 15 violence retrainin g would be issued, but it was determin ed that Eugene Piazza violated 16 the TRO that was in place, and he was immedia tely taken into custody. He was 17 thereafte r charged by the District Attorney 's Office for violating the TRO. The criminal 18 court entered a Protectiv e Order on August 31, 2022. The effect of those restraining 19 orders was to bar Plaintiff from any use or enjoyme nt of the real property . 20 5. Furtherm ore, on Novemb er 9, 2022 all of the parties agreed to settle this matter 21 during mediatio n. As a part of that Agreeme nt, the parties agreed that the Defenda nts 22 and Cross-C omplain ants would continue to make payment s on the home, since they 23 were living in it, until the remainin g terms of the Mediatio n Agreem ent could be 24 complied with. Defenda nts and Cross-C omplain ants continue d to live in that property 25 until early Septemb er 2023, when they vacated the property since they could not 26 perform under the terms of their agreement. 27 2 28 DECLARATION OF MICHAEL J. FISH IN SUPPORT OF PLAINTIF F'S OPPOSITION TO EX PARTE APPLICATION TO REPLACE REFEREE [CCP § 873.0I0(b)] AND MEMORANDUM OF POINTS AND AUTHORITIES 6. Early after the Interlocu tory Judgmen t in this matter appointi ng Michael 2 Pecherer as referee was filed on June 13, 2023, the parties voluntar ily consente d to and 3 participa ted in settleme nt discussio ns and negotiati ons through the referee. When it 4 seemed settleme nt was improba ble, Plaintiff made a written offer to purchase the 5 property. 6 7. It is Plaintiff 's position that the parties' joint participa tion in settleme nt 7 discussions caused them to delay iri the listing of the property for sale, with the 8 understa nding that Plaintiff was going to purchase it from the other parties. 9 8. After settleme nt failed, Plaintiff made an offer to the Referee to purchase the IO property and was informed that the offer was insuffici ent and, through the Referee' s 11 efforts, Plaintiff increase d her offer to at or above what the fair market value of the 12 property truly is, as reflected in the Report of Referee attached to his Request for 13 Confirm ation of Sale (attached hereto as Exhibit A). 14 9. Of addition al concern to Plaintiff, is that Defenda nts and Cross-C omplain ants 15 request the appointm ent of a new referee. This is of substant ial concern to Plaintiff. 16 10. It is Plaintiff s position that the confirma tion of sale needs to take place and that a 17 new referee should not be substitut ed in place of the current referee, or until at least the 18 confirma tion of sale is heard by this court. 19 11. Plaintiff addition ally requests denial of the Ex Parte request for relief for failure 20 to show irreparab le harm or immedia te danger to the opposing parties. 21 12. Furtherm ore, Plaintiff fervently objects to the appointm ent of Amy Harrington. 22 It appears to Plaintiff that Defenda nts and Cross-C omplain ants have merely shopped 23 around for a referee that will serve their own individu al purposes . This Plaintiff has no 24 confiden ce in the new referee being proposed by opposing parties. 25 III 26 III 27 3 28 DECLARATION OF MICHAEL J. FISH IN SUPPORT OF PLAINTIFF'S OPPOSITION TO EX PARTE APPLICATION TO REPLACE REFEREE [CCP § 873.0l0(b)] AND MEMORANDUM OF POINTS AND AUTHORITIES I declare under penalty of perjury on this 20 th day of November 2023, under the 2 laws of the State of California that the foregoing is true and correct. 3 4 5 By: Ad?/4 ..:::--Michael J. Fish 6 7 8 9 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 4 28 DECLARATION OF MICHAEL J. FISH IN SUPPORT OF PLAINTIFF'S OPPOSITION TO EX PARTE APPLICATION TO REPLACE REFEREE [CCP § 873.0lO(b)] AND MEMORANDUM OF POINTS AND AUTHORITIES MEMOR ANDUM OF POINTS AND AUTHORITIES 2 A. Defenda nts and Cross-C omplain ants Request for Ex Parte Relief Must Fail Due to a Lack of Showing of "Good Cause." 3 The application for ex parte relief must be accompanied by a declaration containing an 4 "affirmative factual showing" consisting of "competent testimony based on personal knowledge 5 of irreparable harm, immediate danger or any other statutory basis for granting relief ex parte." 6 [CRC 3.1202(c) (emphasis added); Newsom v. Sup.Ct. (Gallagher) (2020) 50 CA5th 1093, 1097, 7 265 CR3d 582, 585-tria l court should deny relief absent this showing, particularly when party 8 seeks temporary restraining order on expedited basis]. In this matter, the only harm claimed by 9 Defendants and Cross-Complainants is the loss of rental income. If this were true, this is compensable. However, there has been no affirmative factual showing based upon personal 11 knowledge if irreparable harm by Defendants and Cross-Complainants that the property could 12 have been rented for a short period pending sale. It is probable that entering in any such rental 13 agreement would instead hinder any sale and have a negative impact on any valid offer. 14 Additionally, due process requires adequate notice and opportunity to be heard on any 15 motion that affects the rights of the opposing party. At a minimum, this matter should be heard 16 as a noticed motion and not an ex parte request. 17 Based on the foregoing, Defendants and Cross-Complainants Eugene Piazza and Victoria 18 Williams request for termination of Referee Michael Pecherer be denied. Plaintiff further 19 requests that opposing parties' request for appointment of Arny Harrington as a new referee be 20 denied. 21 Respectfully submitted, 22 23 24 ~ 1:1:ichael J. Fish, Attorney for Plaintiff 25 26 27 5 28 DECLARATION OF MICHAEL J. FISH IN SUPPORT OF PLAINTIF F'S OPPOSITI ON TO EX PARTE APPLICATION TO REPLACE REFEREE [CCP § 873.0lO(b) ] AND MEMORANDUM OF POINTS AND AUTHORITIES EXHIBIT A 1 MICHAELS. PECHERER, (SBN 47053) 24 Rio Vista 2 Orinda, CA 94563 3 925-386-0943/ Cell: 925-518-7076 (Please use cell). michaelra; pecherer.com 4 REFEREE IN PARTITION 5 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 IN AND FOR THE COUNTY OF SONOMA 9 OLIVIA PIAZZA, AN INDIVIDUAL, Case No.: SCV 270969 Plaintiff, 11 MOTION FOR ORDER CONFIRMING THE vs. PARTITION SALE OF REAL PROPERTY 12 13 EUGENE PIAZZA, ET AL., Dept: 17: Time: 14 Defendants. Date: 15 MICHAELS. PECHERER, the Court appointed Referee in Partition in this 16 17 matter does hereby move this Honorable Court for an Order Confirming the Partition Sale of li:1 : 18 Real Property. Said Motion will be based upon the Report of the Referee, the Memorandum of : 19 Points and Authorities and the [proposed] Order all submitted herewith together with the files 20 and records ofthis action. 21 DATED: November 16, 2023 22 23 24 Michael S. Pecherer 25 Referee in Partition 26 27 28 MOTION FOR ORDER CONFIRMING THE PARTITION SALE OF REAL PROPERTY - 1 1 DECLARATION OF SERVICE BY EMAIL 2 MICHAELS. PECHERER, hereby declares and states: 3 On November 16, 2023, I served the documents listed below on the Parties to the 4 within matter by emailing true and correct copies thereof to their respective counsel as follows' 5 To the Plaintiff: mfish@andersonzeigler.com To the Defendants: ABentivegna@joh nstonassociate slaw.com 6 7 DOCUMENTS: 8 Motion for Order Confirming the Partition Sale of Real Property Report of "Referee in Support of Motion to Confmn Partition Sale of Real 9 Property 10 Memorandum of Points and Authorities in Support of Motion to Confmn Partition Sale of Real Property 11 [proposed] Order Confirming the Partition Sale of Real Property 12 I declare under penalty of perjury under the laws of the State of California that th 13 foregoing is true and correct. 14 Executed at Orinda, California on November 16, 2023 15 16 17 18 Michael S. Pecherer 19 20 21 22 23 24 25 26 27 28 MOTION FOR ORDER CONFIRMING THE PARTITION SALE OF REAL PROPERTY - 2 I MICHAELS. PECHERER, (SBN 47053) 24 Rio Vista 2 Orinda, CA 94563 3 925-386-0943/ Cell: 925-518-7076 (Please use cell). michacl {a :pecherer. com 4 REFEREE IN PARTITION 5 6 7 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SONOMA 11 OLIVIA PIAZZA, AN INDIVIDUAL, Case No.: SCV 270969 12 13 Plaintiff, MEMORANDUM OF POINTS AND 14 vs. AUTHORITIES IN SUPPORT OF MOTION 15 TO CONFIRM PARTITION SALE OF REAL EUGENE PIAZZA, ET AL., PROPERTY 16 Defendants. 17 18 I 19 PRELIMINARY STATEMENT 20 This is a dispute among family members regarding a single family residence located at in 21 Rohnert Park. at 7541 Windward Drive (the "Property"). The Property is one of many similar 22 23 houses in a recently built subdivision. The lot is small with little ·outdoor space. 24 The Parties made various ownership claims which were resolved by the Interlocutory 25 Judgment. This action sought to partition the Property by sale. This Court issued an 26 Interlocutory Judgment of Partition on June 23, 2023 ordering the Property partitioned by sale 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO CONFIRM PARTITION SALE OF REAL PROPERTY - 1 that and appointing Michael S. Pecherer as Referee. The Interlocutory Judgement contemplated 2 the Property would be conventionally listed for sale. 3 In the meanwhile, the Parties have engaged in sporadic negotiations to resolve the matter 4 as will be discussed below. 5 6 There is an existing mortgage of approximately $570,000. The Plaintiff has been making 7 the mortgage payments while this matter has been pending. There has been no appraisal of the Property. However, as shown in the Referee 's Report 8 9 at filed herewith, and based upon an analysis of comparative sales, the market value is somewh less than $800,000. As noted, the average of the three most commonly used valuation websites 11 12 is $790,216. The value based upon an analysis of recent sales of other properties within the 13 same subdivision results in a valuation of $776,540.00. 14 Since the entry of the Interlocutory Judgment, the Plaintiff has been attempting to 15 by negotiate a buyout of the Defendants' interests but there has not been a constructive response 16 the the Defendants. As a result, the Plaintiff has submitted an offer to the Referee to purchase 17 18 Defendants' interests in the Property. That offer is described in detail in the Referee 's Report. 19 That offer is based upon a purchase price of $800,000; has a provision for an offset for the commission that would have been incurred had the Property been conventionally listed; and 20 21 The defers the resolution of the economic disputes between the Parties until a formal hearing. 22 Referee has filed this Motion to confirm a sale to the Plaintiff on the proffered terms and 23 24 conditions. 25 II THE PROPOSED BUYOUT IS CONSISTENT WITH CURRENT PARTITION LAW 26 27 PARTITION 28 MEMORANDUM OF POINTS AND AUIBOR ITIES IN SUPPORT OF MOTION TO CONFIRM SALE OF REAL PROPERTY - 2 On January 1, 2023, the Legislature adopted the Partition of Real Property Act (the 2 "Act") which addressed a number of issues that consistently arise in partition actions among 3 tenants-in-common. The primary issue addressed is the perceived unfairness of forcing all 4 tenants-in-common to sell their interest when one or more wishes to purchase the interests of the 5 6 dissenters and has the necessary financial capacity. Prior law forced the sale of the entire 7 property and required that any existing tenant-in-common bid against the public if they wished t 8 retain ownership. 9 The Act sets up a process whereby the Court determines the value of the property either on the basis of an appraisal or through other means, and the party wishing to buy out the other 11 12 tenants-in-common is given that right based on the value as so determined. 13 The Act only applies to Partition actions filed on or after January 1, 2023 (C.C.P. 14 §874.311 and technically does not apply to this matter as the complaint here was filed on June 8, 15 2022. Nevertheless, this Court sits in equity and allowing one co-tenant to purchase the interests 16 of the other co-tenants is an equitable solution particularly when the proposed purchase is at fair 17 18 market value, where feasibility is not an issue, and where a prompt sale is likely to occur. 19 The offer before the Court is fully equivalent to a third party offer at $800,000. It will 20 produce the identical net proceeds from the Defendant's point of view. It specifically requests 21 that the Court set a hearing date at which the Court will resolve all claims to the sale proceeds. I 22 is submitted that the Plaintiff's offer is fair, just, and equitable. 23 24 25 26 27 28 :tvlEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO CONFIRM PARTITION SALE OF REAL PROPERTY - 3 m 2 CONCLUSION 3 The Plaintiffs offer, if confirmed, will bring this matter to a prompt conclusion on a fair 4 and equitable basis. The Plaintiff has the capacity to close the transaction and can assume the 5 6 existing mortgage with the consent of the Defendants. Given the current market conditions, and 7 the recent history of sales within this subdivision, the proposal is at market value. The Court 8 should confirm the proposed sale. 9 Dated: November 16, 2023 11 Respectfully submitted, 12 ~ 13 14 15 16 Michael S. Pecherer 17 Referee in Partition 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO CONFIRM PARTITION SALE OF REAL PROPERTY - 4 1 MICHAELS. PECHERER, (SBN 47053) 24 Rio Vista 2 Orinda, CA 94563 3 925-386-0943/ Cell: 925-518-7076 (Please use cell). michaelra)pecherer.com 4 REFEREE IN PARTITION 5 6 7 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SONOMA 11 OLIVIA PIAZZA, AN INDIVIDUAL, Case No.: SCV 270969 12 13 Plaintiff, REPORT OF REFEREE IN SUPPORT OF 14 vs. MOTION TO CONFIRM PARTITION SALE 15 OF REAL PROPERTY EUGENE PIAZZA, ET AL. , 16 Defendants. 17 MICHAELS. PECHERER, hereby declares and states: 18 19 1. I am an attorney duly admitted to practice before this Honorable Court. I make this 20 Declaration of my own personal knowledge and if called as a witness, I could competently testif 21 as to the factual contents hereof. I have expressed my opinion as to certain matters relevant and 22 material to the subject hereof and I state that those opinions are based upon my understanding of 23 the facts herein and upon my experience serving as a partition referee in nearly 300 cases. 24 25 2. My entire practice involves serving as a Partition Referee. I have served in 26 approximately 300 cases involving a variety of real estate properties. I am presently serving as a 27 Partition Referee in six cases involving a total of sixteen properties. 28 REPORT OF REFEREE IN SUPPORT OF MOTION TO CONFIRM PARTITTON SALE OF REAL PROPERTY 1 1 3. This is a motion to confirm the sale of the Defendant's interest in the Property to the 2 Plaintiff. 3 4. The instant case involves an intra-family dispute over a single family residence located in 4 what is often referred to as a "cookie cutter" residential development. The address is 7541 5 6 Windward Drive in Rohnert Park (the "Property"). The Property is located on a small lot with a 7 approximately five foot wide rear yard and similarly narrow side yards. There is little usable 8 outdoor space. The house had four bedrooms and three bathrooms and contains 1,894 square 9 feet. All the homes in this subdivision differ in size, and are essentially of the same construction. 5. I have visited the house first in the company of Defendant Eugene Piazza and again in 11 12 early November with Crystal Davis of Vanguard Properties. Ms. Davis is a Realtor who is 13 familiar with this subdivision and has assisted me in analyzing the likely market value of the 14 Property and the likely duration of "time-on-market" in the event that the Property was 15 conventionally listed. 16 6. The Property is in reasonably good condition. There is no landscaping in the small rear 17 18 yard and the interior has intermediate quality appliances, floor coverings, and bathroom fixtures. 19 7. During 2023, there were three sales of properties within this subdivision as follows: 20 DATE BEDROOM/BAT SQUARE SALES PER SQ. ADDRESS OFSALE H FEET PRICE FOOT 21 $760,000.0 7610 Wildrose 22 1/17/2023 4/3 1,894 0 $401.00 Way 7521 Windward $870,000.0 23 7/3/2023 4/3 2,215 0 $393 .00 Drive 7484 Wendy $825,000.0 24 0 $437.00 Way 3/21/2023 3/3 1,888 25 26 The average of these three sales is $410 per square foot. Applying that average to the 8. 27 Property would result in a market value of $776,540.00. 28 REPORT OF REFEREE IN SUPPORT OF MOTION TO CONFIRM PARTITION SALE OF REAL PROPERTY 2 1 9. As of the date ofthis Report, there are two active listings in this development which is 2 7479 Waverly Place which is a four bedroom/three bath house of 2,238 square feet. It is listed at 3 $885,000 or $395 per square foot. This property apparently has beet). on the market for four 4 months. There is another listing for 1828 Waverly Place at $885,000, which contains 2,238 5 6 square feet and is a 4/3. The price also equates to $395 per square foot. 7 10. Redfin estimates the market value of the Property at $806,000. Zillow's estimate is 8 $757,700. Realtor.com estimates the value at $806,950. The average of these three estimates is 9 $790,216. 11. Any sale to a third party would involve a real estate commission, inspections, and the 11 12 probability of some repair costs to the sellers. 13 12. While this matter has been pending, the Plaintiff has sought to resolve the dispute by 14 purchasing the Defendants' interests. The Referee also submitted a settlement proposal that 15 would result in the Plaintiffs purchase of the Defendants' interests. There have been no 16 constructive responses by the Defendants, who, through their counsel, have demanded that the 17 18 Property be listed with a local broker. 19 13. The Plaintiff has submitted to the Referee, a written offer to purchase the interests of the 20 Defendants which contains the following provisions: 21 A. Purchase price based upon an overall valuation of $800,000. 22 B. The transfer will occur through Fidelity National Title Insurance Company. Title and 23 24 escrow fees will be allocated in the ordinary fashion for Sonoma County. 25 C. Purchase is conditioned on the Plaintiffs ability to assume the existing mortgage 26 which can be accomplished with the written consent of the Defendant obligors. The 27 loan balance is approximately $570,000. 28 REPORT OF REFEREE IN SUPPORT OF MOTION TO CONFIRM PARTITION SALE OF REAL PROPERTY 3 D. The purchase price will be reduced by 5% which would have been the real estate 2 commission had the Property been conventionally listed. 3 E. The purchase price will also be reduced by $14,000 payable by Plaintiff to Victoria 4 Williams who will provide into the escrow a complete release of the Plaintiff, from 5 6 any and all claims arising from the purchase and ownership of the Property and a 7 dismissal of her cross-complaint. The complaint in this matter will also be dismissed 8 once the Court has determined the allocation of the sale proceeds and the sale has 9 closed. F. Upon confirmation, the foregoing will be restated on the typical CAR forms or an 11 12 equivalent. 13 G. Based on the foregoing, the Plaintiff will deposit into escrow the total sum of 14 $176,000 (+/-) adjusted for the Plaintiff's and Defendant's respective shares of the 15 title and escrow costs as follows: Plaintiff will deposit $20,000 into escrow within 16 three days of confirmation. The balance in excess of the earnest money deposit will 17 18 be deposited in time for a scheduled closing. 19 H. Prior to the closing of the transaction, the Court will determine the allocation of the 20 proceeds among the Parties which shall include any equitable reallocations, if any; 21 the Referee's fees, attorneys' fees; and any reimbursements for the payment of 22 expenses relating to the Property. 23 24 14. It is my opinion, based upon my experience in managing several hundred partition sales 25 and many more real property sales over the past 52 years of law practice that the Plaintiff's offe, 26 should be confirmed. There are numerous advantages. Based upon the sources quoted above, 27 the proposed price is at or above the market value. There is financing in place once the existing 28 REPORT OF REFEREE IN SUPPORT OF MOTION TO CONFIRM PARTITION SALE OF REAL PROPERTY 4 mortgage is assumed. The transaction can close promptly as soon as the Court determines the 2 appropriate allocations. This resolution is consistent with the 2023 amendments to the Partitio 3 of Real Property statutes which facilitate the purchase the dissident interests by the existing co- 4 tenants. I will discuss this in the accompanying Memorandum of Points and Authorities. 5 6 15. The Court should be aware that there have been ongoing negotiations to resolve this 7 matter and that the entire costs of maintaining the Property during the pendency of this matter 8 have been paid by the Plaintiff. The Plaintiff has made prior purchase proposals and I have 9 submitted to counsel a proposal that would resolve the entire matter. There have been no 10 constructive responses. 11 12 I declare under penalty of perjury under the laws of the State of California that the 13 foregoing is true and correct. 14 Executed at Orinda, California on November 16, 2023. 15 16 17 18 Michael S. Pecherer 19 Referee in Partition 20 21 22 23 24 25 26 27 28 REPORT OF REFEREE IN SUPPORT OF MOTION TO CONFIRM PARTITION SALE OF REAL PROPERTY 5 1 PROOF OF SERVICE 2 I, the undersigned, declare: 3 I am employed in the County of Sonoma, State of California. I am over the age of eighteen years and notth a party to the within cause; my business address is 50 Old 4 Courthouse Square, 5 Floor, Santa Rosa, California 95404. 5 On the date stated below, I caused to be served in the manner indicated the foregoing 6 DECLARATION OF MICHAEL J. FISH IN SUPPORT OF PLAINTIFF'S 7 OPPOSITION TO EX PARTE APPLICATION TO REPLACE REFEREE [CCP § 873.0l0(b)) 8 on the parties involved addressed as follows: 9 Anthony Bentivegna, Esq. Attorneys for Defendants/Cross- 10 Johnston & Associates Complainants 1400 N Dutton A venue, Ste. 21 EUGENE PIAZZA AND VICTORY 11 Santa Rosa, CA 95401 WILLIAMS abentive gna@johnstonthomas.com 12 kpena@ johnstonassociateslaw.com 13 Michael Pecherer, Referee mpecherer@gmail.com 14 [ ] BY MAIL on the following party(ies) in said action, in accordance with CCP § 15 10l 3(a), by placing a true copy thereof enclosed in a sealed envelope in a designated area for outgoing mail, addressed as set forth above. In the ordinary 16 course of business at the Law Offices of Merrill, Arnone & Jones, LLP, mail placed in that designated area is given the correct amount ofpostage, and is 17 deposited that same day in a United States mailbox in the city ofSanta Rosa, California. 18 [ X J BY ELECT RONIC MAIL: My electronic business address is 19 ksfarzo@andersonzeigler.com, and I caused such document(s) to be electronically served to those parties listed above. The file transmission was reported complete 20 and a copy will be maintained with the documents in our office. 21 [ ] BY OVERN IGHT DELIVE RY on the followin g party(ies) in said action, in accordance with CCP f 1013 (c), by placing a true copy thereof enclosed in a 22 sealed envelope, with delivery fees paid orprovid ed Jor, in a clesignated art?a for outgoing overnight mail, addressed as set Jorth below. _In the ordinary course of 23 business at the Law Offices of Merrill, Arnone & Jones, LLP, mail placed in that designated area is picked up that same dayfor delivery the following business day. 24 I declare under penalty of perjury under the laws of the State of California that the 25 l __p){)._ }l, 0 for~going is true and correct. Executed on November 20, 2023, at Santa Rosa,.._ ~~o 26 Cahfomta. 27 28 PROOF OF SERVICE