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Roy N. Johnston (SBN 185409)
Anthony Bentivegna, Esq. (SBN 129487)
JOHNSTON AND ASSOCIATES, Attorneys at Law, P.C.
1400 N. Dutton Avenue, Suite 21
Santa Rosa, California 95401
Phone: (707) 545-6542
Facsimile: (707) 545-1522
E-mail: abentivegna@johnstonassociateslaw.com
Attorneys for Defendant Eugene Piazza
and Cross-Complainants Eugene Piazza and Victoria Williams
THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 IN AND FOR THE COUNTY OF SONOMA - CIVIL DIVISION
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OLIVIA PIAZZA, an individual, Case No. SCV 270969
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Plaintiff, Unlimited Civil Case
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vs. REPLY DECLARATION OF ANTHONY
14 BENTIVEGNA IN SUPPORT OF EX PARTE
EUGENE PIAZZA, and ALL PERSONS APPLICATION TO REPLACE PARTITION
15 UNKNOWN CLAIMING ANY LEGAL OR REFEREE (C.C.P. § 873.010(b));
EQUITABLE RIGHT, TITLE, ESTATE, LIEN, MEMORANDUM
16 OR INTEREST IN THE PROPERTY
DESCRIBED IN THE COMPLAINT
17 ADVERSE TO PLAINTIFF’S TITLE Date: November Bh 2023
THERETO and DOES | through 50, inclusive, Time: 10:30 AM
18 Dept: 17 (Judge Bradford DeMeo)
Defendants. Complaint filed: June 8, 2022
19 Trial Date On Reserved Issues: None
EUGENE PIAZZA, an individual; and
20 VICTORIA WILLIAMS, an individual;
21 Cross-Complainants,
22 vs.
23 OLIVIA PIAZZA; and DOES 51-70, inclusive,
24 Cross-Defendants.
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REPLY DEC. ISO EX PARTE APPLICATION
REPLY DECLARATION OF ATTORNEY ANTHONY BENTIVEGNA.
I, Anthony Bentivegna, declare as follows:
1. lam an attorney at law duty admitted to practice before the courts of the State of
California and am Of Counsel with the law firm of Johnston and Associates, attorneys of record for
Defendant Eugene Piazza and Cross-Complainants Eugene Piazza and Victoria Williams. I have
personal knowledge of the following facts and could, if called, testify competently thereto.
2. I met and conferred with opposing counsel Michael Fish, counsel for Plaintiff Olivia
Piazza, by telephone on the morning of November 16, 2023, and again this afternoon. I explained
that the grounds for removal of Michael Pecherer were that he failed to list the property that is the
10 subject matter of this partition action, and acted in contravention of the Interlocutory Judgment in
1 several respects. In our first conversation Mr. Fish indicted that he wanted to wait and see what
12 motion Mr. Pecherer would bring to confirm a sale, and that he would likely oppose the ex parte
13 application. I then gave notice and served this ex parte later that day, i.e. November 16, which is a
14 few days more than required (earlier notices were withdrawn, as Tuesdays are the only days for
15 civil ex parte applications in this department). The parties therefore have met and conferred.
16 3. This ex parte requires urgent consideration because the referee has abandoned compliance
17 with the Interlocutory Judgment and there is nowhere else to turn. The Judgment (submitted as
18 Exhibit B to the application) requires a competitive bid process (authority to sell to the “highest and
19 best net bidder”); and contemplated a listing to accomplish that (“If the parties do not sign a
20 mutually agreeable listing, the Referee shall listing agreement at a brokers commission not to
21 exceed 5%”). C.C.P. 873.600-873.690 was also invoked as statutory authority to do just that. After
22 fees and costs, Paragraph 8 requires residue to be held out for adjudication of the Cross-Complaint.
23 Absolutely nothing in the Judgment or the C.C.P. allows for a five month self-appointment to serve
24 as a mediator instead. In the last five months there has been no listing, no bids and nothing to
25 suggest that such actions are planned. On behalf of my clients I measured out at least ten requests to
26 Mr. Pecherer that the property be listed (Exhibit D to the application), and it is undisputed that he
27 failed to do so. Mr. Pecherer needs to be removed now because he still admittedly refuses to engage
28 in the competitive bid process for the property that was ordered, for which he holds exclusive
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REPLY DEC. ISO EX PARTE APPLICATION
possession. For every day that passes, there is a loss of use of the money that a sale would yield,
loss of rental income and an accrued mortgage payment, all of which could have been avoided if
the property had been sold at the height of the Summer market as ordered in June (or earlier, had
Plaintiff cooperated with a mutual listing). Losses continue to mount every day. Clearly there is
irreparable harm - ex parte relief is entirely appropriate under these circumstances.
4. After my multiple requests to have the property listed were unsuccessful, Mr. Pecherer
finally appeared to bring closure to the improper detour when he devised what he called “one last
effort” on 10/16/23. Neither side accepted it, which led to my ninth request to list on 10/25/23. Mr.
Pecherer’s email response indicated he was “proceeding in that fashion.” In response to my further
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inquiry, he wrote on 11/2/23, “I am meeting with a real estate agent at the property tomorrow at 10
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am. I intend to sign a listing agreement and proceed with the sale (emphasis added).” Sometime
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after this, I discovered that he had not listed the property as promised, which was the last straw that
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led me to notify him of my intent to bring this ex parte application. Ten minutes later, Mr. Pecherer
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wrote that he was bringing a motion to confirm the sale. This was the first I heard of any plan to
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confirm a sale. I received no indication that Plaintiff had provided him with terms to confirm a sale.
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Whatever terms of sale are now requested by Plaintiff cannot be found in the oppositions to this
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motion. In a phone call to Mr. Fish today I did request a copy but so far none has been forthcoming.
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As indicated above, the last proposal by Mr. Pecherer was back on 10/16/23, and neither side found
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it to be acceptable. Clearly, Mr. Pecherer remains unwilling to list the property as ordered and as
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promised, and his full response to the ex parte does not request an opportunity to be further heard
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in this regard. A true and correct copy of this sequence is attached as Exhibit F.
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5. Mr. Pecherer’s opposition has both some key admissions and some inaccuracies.
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Paragraph 3 cynically states that counsel has a tendency to over-litigate and that he works to move
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the parties to resolution. This suggests that he habitually fails to observe direct orders to sell. In
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truth, there did not need to be any litigation had the property been sold as Plaintiff requested in her
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complaint June of 2022, to which my client’s acceded, or if there was a buy out last year that was
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fully explored with a $750 an hour mediator. When motions to enter an interlocutory judgment are
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brought, as in this case, the parties have already exhausted efforts and seek to eliminate further
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REPLY DEC. ISO EX PARTE APPLICATION
litigation by pressing forward with a sale. The only litigation in the history of this case arose from
Plaintiff's failed attempt to have a perceived settlement approved and Plaintiff's attempt to defeat
the Interlocutory Judgment ordering sale, which is universally acknowledged elsewhere to be a
matter of statutory right. The balance of Mr. Pecherer’s opposition hints that my client wanted a
settlement on terms other than I proposed, which is untrue, and also suggests that there was no
“appetite” to settle, which is also untrue. In sum, Mr. Pecherer’s opposition clearly admits that he
acted only as a self-appointed mediator for settlement and not as a partition referee charged in this
case with the responsibility to list the property for sale.
6. Mr. Pecherer is now conflicted because his proposed order demonstrates bias by
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embracing an undisclosed settlement offer, and was indicated to be pursued ten minutes after I first
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gave notice of this ex parte application. Mr. Pecherer indicates that his proposal to court is /ess
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favorable to my clients than his so-called final proposal that all the parties rejected. This is
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significant because it signals retribution for my clients’ unwillingness to adopt it, an unwillingness
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that was shared with Plaintiff. A true and correct copy of his sale confirmation proposal is attached
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as Exhibit G. Here, it asks that my client, Cross-Complainant Williams, be paid only $14,000 and
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that this court order the Cross-Complaint be dismissed and order both Cross-Complainants sign
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releases of their claims! Clearly the Judgment requires that the net proceeds of a sale be instead
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held in a blocked account for ultimate disposition of the Cross-Complaint. The Cross-Complaint
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seeks a 1/3 ownership interest for Ms. Williams, over $29,000 in unreimbursed mortgage payments
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alone, over $12,000 for unreimbursed down payment, about $3000 for a real estate commission,
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etc., and Mr. Pecherer was provided with supporting proof. In biased fashion, it also reduces
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Plaintiff's pay in by a phantom 5% commission when such commissions are normally split. The
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proposal at 5(c) states that the entire sale is contingent upon my client’s consent to Plaintiff's
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assumption of the mortgage. My client has never seen Plaintiff's offer and does not consent to this,
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which immediately renders the entire proposal useless.
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7. Turning to Plaintiff's opposition, Defendant is accused of a “scorched earth” campaign.
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Not so. It is actually a “when the heck is the property going to be listed for sale as Plaintiff sued to
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make happen back on 6/8/22, as the CCP requires, as Defendants agreed to, and as the court
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REPLY DEC. ISO EX PARTE APPLICATION
ordered 5 months ago to happen” campaign. The opposition mostly rales about a past, irrelevant
TRO against my client which I have not fully investigated. Bringing it up can only serve to dampen
enthusiasm for settlement. Paragraph 5 falsely asserts there was a settlement last year; this court
held otherwise in recent motion practice. Paragraph 6 mentions a written offer to purchase; there
have been many written offers to purchase on both sides. None have been accepted. The written
offer that supports the retaliatory motion to confirm sale is the first one that was clandestine. I have
never seen it. It is a written offer to Mr. Pecherer but not to myself or my clients. As for the
nomination of Amy Harrington, she is eminently qualified and there are not many who have her
experience. Plaintiff does not recommend anyone else and there is no conflict of interest indicated.
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I declare under penalty ofperjury that the foregoing is true and correct and that this
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declaration is executed on the date undersigned in Novato, California.
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13 2,
14 Dated: November 20, 2023 LE
AES
fe
Anthony Ben tivegna
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REPLY DEC. ISO EX PARTE APPLICATION
EXHIBIT F
Piazza
Michael Pecherer
Mon 10/16/2023 1:04 PM
To:Michael Fish ;Anthony Bentivegna
U 1 attachments (15 KB)
MSP proposal 10-16-2023.docx;
Gentlemen, please see attached,
Michael
--
Michael S. Pecherer
Receiver and Referee in Partition
michael@pecherer.com
Office: 925-386-0943
Cell: 925-518-7076
October 16, 2023
Counsel in Piazza
| strongly believe that his case should be settled. If we proceed to list the property, we will face a
commission, a motion to confirm and a distribution motion, a final report of the referee and then the
necessity of obtaining a final judgment of partition. That entails a lot of legal work and a lot of referee’s
time. The differences between the parties would be overwhelmed by the attendant costs.
As one last effort to avoid those expenses, and building on the offer that Mr. Fish presented last week, |
propose the following resolution:
1. Olivia will buy the house and will assume the existing loan or will secure new financing, both at
her expense.
The transfer will occur through a title company and the title and escrow fees will be paid in the
ordinary fashion for Sonoma County. It will close as soon as is practicable.
The current loan balance is approximately $570,000. Without quibbling over the parties’ equity,
| will assume that it is $240,000.
| will assume that the real estate commission would be $48,000. That would reduce the equity
to $191,000. By calculating in this fashion, the commission comes off the top and each side
effectively absorbs half.
Olivia pays the Defendants $95,700 which includes $14,000 reimbursement to Tory.
The payments to the Defendant are made through the escrow. Upon the close of escrow, the
parties stipulate to a final judgment of partition and the case ends.
As an incentive, | will reduce my fees to $7,500 and each side will pay half through the escrow.
The Defendant's half will come from the payment in paragraph 5. Olivia will deposit her half into
the escrow.
Each side absorbs their own attorney’s fees and costs.
No further motions or court hearings. The Final Judgment is submitted by stipulation that | will
prepare.
10 | will manage the escrow. | will use an escrow officer who is familiar with partition sales. The
parties will promptly sign all documents required to close the transaction.
Re: Piazza
Michael Pecherer
Wed 10/25/2023 12:55 PM
To:Anthony Bentivegna
Tony, | am proceeding in that fashion. | have identified an agent with experience in these matters and am trying to set
up a meeting at the property. | am jammed this week with a writ petition but should get to it next week.
Michael
On Wed, Oct 25, 2023 at 12:48PM Anthony Bentivegna
wrote:
Michael
| It being apparent that neither party agreed to the final proposal, | again ask that the property be listed
| for 810 now in order to avoid the holidays when buyers are less likely.
JOHNSTO SSOCIATES
AUPORNEYS
AF LAME FG
Anthony Bentivegna, Esq.
Of Counsel
1400 North Dutton Ave., Ste. 21 | Santa Rosa, CA 95401
T: 415/320-5031 | e: abentivegna@johnstonassociateslaw.com
Wel : www, johnstonassociateslaw.com
neni UNNI RIN SE panne pronananaransvarsranenenste ARVANA AINIRURIRIAY
NOTICE: The information contained in (and attached to) this e-mail is intended only for the personal and
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From: Michael Pecherer
Sent: Monday, October 16, 2023 1:04 PM
To: Michael Fish ; Anthony Bentivegna
Subject: Piazza
Gentlemen, please see attached.
Michael
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Michael S. Pecherer
Receiver and Referee in Partition
michael@pecherer.com
Office: 925-386-0943
| Cell: 925-518-7076
|
--
Michael S. Pecherer
Receiver and Referee in Partition
michael@pecherer.com
Office: 925-386-0943
Cell: 925-518-7076
Piazza
Michael Pecherer
Thu 11/2/2023 12:40 PM
To:Michael Fish ;Anthony Bentivegna
fam meeting with a real estate agent at the property tomorrow at 10 am. | intend to sign a listing agreement and
proceed with the sale. | am going to let the agent propose a listing price as | have found that to be a better
approach,
Michael
--
Michael S. Pecherer
Receiver and Referee in Partition
michael@pecherer.com
Office: 925-386-0943
Cell: 925-518-7076
EXHIBIT G
[proposedMICHAEL S. PECHERER, (SBN 47053)
24 Rio Vista
Orinda, CA 94563
925-386-0943/ Cell: 925-518-7076 (Please use cell)
michael@pecherer.con
REFEREE IN PARTITION
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
TN AND FOR THE COUNTY OF SONOMA
IL
12 OLIVIA PIAZZA, AN INDIVIDUAL, Case No.: SCV 270969
13 Plaintiff,
[PROPOSED] ORDER CONFIRMING THE
14 vs.
PARTITION SALE OF REAL PROPERTY
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EUGENE PIAZZA, ET AL.,
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Defendants.
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The Motion of the Court appointed Partition Referee to Confirm the Sale of Real
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Property came on for hearing. All Parties appeared by counsel. The Court, having considered
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20 the papers filed by all Parties and the files and records of this matter makes the following
21 Findings and Order.
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FINDINGS:
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1 This is a partition action involving a single family residence located at 7541 Windward
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Drive in Rohnert Park (the “Property”). The Interlocutory Judgment determined that
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26 Plaintiff Olivia Piazza and Defendant Eugene Piazza are co-owners. The Property is
27 subject to a mortgage of approximately $570,000.
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[PROPOSED] ORDER CONFIRMING THE PARTITION SALE OF REAL PROPERTY - 1
The Interlocutory Judgment Ordered the Referee to sell the Property. However, listing of
the Property was delayed as the Parties sought to negotiate a resolution of this matter
which negotiations were unsuccessful.
Plaintiff submitted an offer to the Referee to purchase the Defendant's interest and the
Referee has recommended that offer be confirmed.
The Court finds that the fair market value of the Property is $800,000 based upon the
Referee’s analysis of comparative sales and the value estimates of the internet sites that
deal with the values and sales of residential real property.
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The terms of the Plaintiff's offer are as follows:
IL
12 A. Purchase price based upon an overall valuation of $800,000.
13 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.
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Purchase is conditioned on the Plaintiff's ability to assume the existing mortgage
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which can be accomplished with the written consent of the Defendant obligors. The
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18 loan balance is approximately $570,000.
19 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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The purchase price will also be reduced by $14,000 payable by Plaintiff to Victoria
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Williams who
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24 will provide into the escrow a complete release of the Plaintiff, from any and all
25 claims arising from the purchase and ownership of the Property and a dismissal of her
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cross-complaint. The complaint in this matter will also be dismissed once the Court
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has determined the allocation of the sale proceeds and the sale has closed.
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[PROPOSED] ORDER CONFIRMING THE PARTITION SALE OF REAL PROPERTY - 2
F. Upon confirmation, the foregoing will be restated on the typical CAR forms or an
equivalent.
Based on the foregoing, the Plaintiff will deposit into escrow the total sum of
$176,000 (+/-) adjusted for the Plaintiff's and Defendant's respective shares of the
title and escrow costs as follows: Plaintiff will deposit $20,000 into escrow within
three days of confirmation. The balance in excess of the earnest money deposit will
be deposited in time for a scheduled closing.
Prior to the closing of the transaction, the Court will determine the allocation of the
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proceeds among the Parties which shall include any equitable reallocations, if any;
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12 the Referee’s fees, attorneys’ fees; and any reimbursements for the payment of
13 expenses relating to the Property.
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6. The Referee recommends that the Plaintiff's offer be confirmed.
CONCLUSIONS AND ORDER:
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1 The Plaintiff's offer is fair, just, and equitable in that is at fair market value, is fully
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18 financed, and can close promptly. Accordingly, the Plaintiff's offer is confirmed.
19 The Plaintiff shall provide her offer to the Referee and to counsel for the Defendants on a
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CAR form or the equivalent within five (5) business days of this Order.
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The Referee shall arrange for an escrow to be opened and the Plaintiff shall deposit
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$20,000 within three days of this Order.
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24 All other terms and conditions of the Plaintiffs offer shall be implemented as promptly
25 as is practicable.
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The Parties are ordered to execute all documents necessary to complete the confirmed
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sale promptly as is requested by the title company.
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[PROPOSED] ORDER CONFIRMING THE PARTITION SALE OF REAL PROPERTY - 3
1 6. The Court sets as the date when all issues relating to the
financial obligations among the Parties, the fees of the Referee, any equitable
reallocations, attorneys’ fees, and reimbursements shall be resolved. The Parties are
directed to file all papers relating to those issues no later than
7 The sale shall close as soon as practicable after the Court has made the determinations
specified in Paragraph 6 above and the proceeds of the sale shall be disbursed from the
escrow accordingly.
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IT IS SO ORDERED.
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12 Dated:
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Judge of the Superior Court
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[PROPOSED] ORDER CONFIRMING THE PARTITION SALE OF REAL PROPERTY - 4
CASE: Piazza v Piazza et al CASE NO: SCV270969
I am employed in the County of Sonoma, State of California. Iam over the age of
18 and not a party to the within action. My business address is 1400 N Dutton Ave. Ste 21, Santa
Rosa CA 95401.
On November 21, 2023, at approximately 8:15 a.m. I serviced the foregoing document
described below attached hereto on all interest parties in this action by the method indicated below
and to the following address:
1 REPLY DECLARATION OF ANTHONY BENTIVEGNA IN SUPPORT OF EX
PARTE APPLICATION TO REPLACE PARTITION REFEREE (CCP sec.
873.010(b)); MEMORANDUM
Michael J. Fish Michael Pecherer
Richard C, O’Hare By email:
Anderson Zeigler, PC mpecherer@gmail.com
10 Attorneys for Plaintiffs and Cross-
Defendants
11 By email: mfish@andersonzeigler.com;
rohare@andersonzeigler.com and
12 ksfarzo@andersonzeigler.com>
13 Amy Harrington
By email: amy_amyharringtonlaw.com
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[] BY MAIL ~I deposited such envelope in the mail at Santa Rosa, California The envelope was
15 mailed with postage thereon fully prepaid. I am “readily familiar” with the firm’s practice
of collection and processing correspondence for mailing. Under that practice it would be
16 deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid
at Santa Rosa, California (State) in the ordinary course of business. I am aware that on
17 motion of the party serviced service is presumed invalid if postal cancellation date or
postage meter dates is more than one (1) day after date of deposit of mailing.
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[XX] BY eSERVICE — Pursuant to Code of Civil Procedure section 1010.6 and California Rules
19 of Court section 2.256(1)(4), L affected electronic service of the documents indicated below
to the attached e-mail service list by submitting an electronic PDF version of the
20 document(s) to Microsoft Outlook, through the user interface at johnstonassociateslaw.com
at approximately 8:15 a.m. My eService address is: kpena@johnstonassociateslaw.com
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[] VIA FACSIMILE ~ I faxed said document, to the office(s) of the addressee(s) shown above,
22 and the transmission was reported as complete and without error.
23 [] BY OVERNIGHT DELIVERY — I deposited such envelope for collection and delivery by
FEDERAL EXPRESS with delivery fees paid or provided for in accordance with ordinary
24 business practices. I am “readily familiar” with the firm’s practice of collection and
processing packages BY overnight delivery by FEDERAL EXPRESS. They are deposited
25 with a facility regularly maintained by FEDERAL EXPRESS for receipt on the same day in
the ordinary course of business.
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[] BY SERVICE BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED — On I
27 personally deposited a true copy by certified or registered mail, Return Receipt Requested,
postage paid, addressed to the address(es) of the party(ies) above.
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[] BY HAND DELIVERY: The correspondence or documents were placed in sealed, labeled
envelopes and served by personal delivery to the party or attorney indicated herein or , if
upon attorney, by leaving the labeled envelope at the court clerk’s office drop box.
//
I declare under penalty of perjury under the laws of the State of California that the above is
true and correct.
Executed on November 21, 2023, at Santa Rosa, California
By:
Kelsi Pena
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Preview
Roy N. Johnston (SBN 185409) Anthony Bentivegna, Esq. (SBN 129487) JOHNSTON AND ASSOCIATES, Attorneys at Law, P.C. 1400 N. Dutton Avenue, Suite 21 Santa Rosa, California 95401 Phone: (707) 545-6542 Facsimile: (707) 545-1522 E-mail: abentivegna@johnstonassociateslaw.com Attorneys for Defendant Eugene Piazza and Cross-Complainants Eugene Piazza and Victoria Williams THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 IN AND FOR THE COUNTY OF SONOMA - CIVIL DIVISION 11 OLIVIA PIAZZA, an individual, Case No. SCV 270969 12 Plaintiff, Unlimited Civil Case 13 vs. REPLY DECLARATION OF ANTHONY 14 BENTIVEGNA IN SUPPORT OF EX PARTE EUGENE PIAZZA, and ALL PERSONS APPLICATION TO REPLACE PARTITION 15 UNKNOWN CLAIMING ANY LEGAL OR REFEREE (C.C.P. § 873.010(b)); EQUITABLE RIGHT, TITLE, ESTATE, LIEN, MEMORANDUM 16 OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT 17 ADVERSE TO PLAINTIFF’S TITLE Date: November Bh 2023 THERETO and DOES | through 50, inclusive, Time: 10:30 AM 18 Dept: 17 (Judge Bradford DeMeo) Defendants. Complaint filed: June 8, 2022 19 Trial Date On Reserved Issues: None EUGENE PIAZZA, an individual; and 20 VICTORIA WILLIAMS, an individual; 21 Cross-Complainants, 22 vs. 23 OLIVIA PIAZZA; and DOES 51-70, inclusive, 24 Cross-Defendants. 25 26 27 28 -l- REPLY DEC. ISO EX PARTE APPLICATION REPLY DECLARATION OF ATTORNEY ANTHONY BENTIVEGNA. I, Anthony Bentivegna, declare as follows: 1. lam an attorney at law duty admitted to practice before the courts of the State of California and am Of Counsel with the law firm of Johnston and Associates, attorneys of record for Defendant Eugene Piazza and Cross-Complainants Eugene Piazza and Victoria Williams. I have personal knowledge of the following facts and could, if called, testify competently thereto. 2. I met and conferred with opposing counsel Michael Fish, counsel for Plaintiff Olivia Piazza, by telephone on the morning of November 16, 2023, and again this afternoon. I explained that the grounds for removal of Michael Pecherer were that he failed to list the property that is the 10 subject matter of this partition action, and acted in contravention of the Interlocutory Judgment in 1 several respects. In our first conversation Mr. Fish indicted that he wanted to wait and see what 12 motion Mr. Pecherer would bring to confirm a sale, and that he would likely oppose the ex parte 13 application. I then gave notice and served this ex parte later that day, i.e. November 16, which is a 14 few days more than required (earlier notices were withdrawn, as Tuesdays are the only days for 15 civil ex parte applications in this department). The parties therefore have met and conferred. 16 3. This ex parte requires urgent consideration because the referee has abandoned compliance 17 with the Interlocutory Judgment and there is nowhere else to turn. The Judgment (submitted as 18 Exhibit B to the application) requires a competitive bid process (authority to sell to the “highest and 19 best net bidder”); and contemplated a listing to accomplish that (“If the parties do not sign a 20 mutually agreeable listing, the Referee shall listing agreement at a brokers commission not to 21 exceed 5%”). C.C.P. 873.600-873.690 was also invoked as statutory authority to do just that. After 22 fees and costs, Paragraph 8 requires residue to be held out for adjudication of the Cross-Complaint. 23 Absolutely nothing in the Judgment or the C.C.P. allows for a five month self-appointment to serve 24 as a mediator instead. In the last five months there has been no listing, no bids and nothing to 25 suggest that such actions are planned. On behalf of my clients I measured out at least ten requests to 26 Mr. Pecherer that the property be listed (Exhibit D to the application), and it is undisputed that he 27 failed to do so. Mr. Pecherer needs to be removed now because he still admittedly refuses to engage 28 in the competitive bid process for the property that was ordered, for which he holds exclusive -2- REPLY DEC. ISO EX PARTE APPLICATION possession. For every day that passes, there is a loss of use of the money that a sale would yield, loss of rental income and an accrued mortgage payment, all of which could have been avoided if the property had been sold at the height of the Summer market as ordered in June (or earlier, had Plaintiff cooperated with a mutual listing). Losses continue to mount every day. Clearly there is irreparable harm - ex parte relief is entirely appropriate under these circumstances. 4. After my multiple requests to have the property listed were unsuccessful, Mr. Pecherer finally appeared to bring closure to the improper detour when he devised what he called “one last effort” on 10/16/23. Neither side accepted it, which led to my ninth request to list on 10/25/23. Mr. Pecherer’s email response indicated he was “proceeding in that fashion.” In response to my further 10 inquiry, he wrote on 11/2/23, “I am meeting with a real estate agent at the property tomorrow at 10 1 am. I intend to sign a listing agreement and proceed with the sale (emphasis added).” Sometime 12 after this, I discovered that he had not listed the property as promised, which was the last straw that 13 led me to notify him of my intent to bring this ex parte application. Ten minutes later, Mr. Pecherer 14 wrote that he was bringing a motion to confirm the sale. This was the first I heard of any plan to 15 confirm a sale. I received no indication that Plaintiff had provided him with terms to confirm a sale. 16 Whatever terms of sale are now requested by Plaintiff cannot be found in the oppositions to this 17 motion. In a phone call to Mr. Fish today I did request a copy but so far none has been forthcoming. 18 As indicated above, the last proposal by Mr. Pecherer was back on 10/16/23, and neither side found 19 it to be acceptable. Clearly, Mr. Pecherer remains unwilling to list the property as ordered and as 20 promised, and his full response to the ex parte does not request an opportunity to be further heard 21 in this regard. A true and correct copy of this sequence is attached as Exhibit F. 22 5. Mr. Pecherer’s opposition has both some key admissions and some inaccuracies. 23 Paragraph 3 cynically states that counsel has a tendency to over-litigate and that he works to move 24 the parties to resolution. This suggests that he habitually fails to observe direct orders to sell. In 25 truth, there did not need to be any litigation had the property been sold as Plaintiff requested in her 26 complaint June of 2022, to which my client’s acceded, or if there was a buy out last year that was 27 fully explored with a $750 an hour mediator. When motions to enter an interlocutory judgment are 28 brought, as in this case, the parties have already exhausted efforts and seek to eliminate further 3. REPLY DEC. ISO EX PARTE APPLICATION litigation by pressing forward with a sale. The only litigation in the history of this case arose from Plaintiff's failed attempt to have a perceived settlement approved and Plaintiff's attempt to defeat the Interlocutory Judgment ordering sale, which is universally acknowledged elsewhere to be a matter of statutory right. The balance of Mr. Pecherer’s opposition hints that my client wanted a settlement on terms other than I proposed, which is untrue, and also suggests that there was no “appetite” to settle, which is also untrue. In sum, Mr. Pecherer’s opposition clearly admits that he acted only as a self-appointed mediator for settlement and not as a partition referee charged in this case with the responsibility to list the property for sale. 6. Mr. Pecherer is now conflicted because his proposed order demonstrates bias by 10 embracing an undisclosed settlement offer, and was indicated to be pursued ten minutes after I first ll gave notice of this ex parte application. Mr. Pecherer indicates that his proposal to court is /ess 12 favorable to my clients than his so-called final proposal that all the parties rejected. This is 13 significant because it signals retribution for my clients’ unwillingness to adopt it, an unwillingness 14 that was shared with Plaintiff. A true and correct copy of his sale confirmation proposal is attached 15 as Exhibit G. Here, it asks that my client, Cross-Complainant Williams, be paid only $14,000 and 16 that this court order the Cross-Complaint be dismissed and order both Cross-Complainants sign 17 releases of their claims! Clearly the Judgment requires that the net proceeds of a sale be instead 18 held in a blocked account for ultimate disposition of the Cross-Complaint. The Cross-Complaint 19 seeks a 1/3 ownership interest for Ms. Williams, over $29,000 in unreimbursed mortgage payments 20 alone, over $12,000 for unreimbursed down payment, about $3000 for a real estate commission, 21 etc., and Mr. Pecherer was provided with supporting proof. In biased fashion, it also reduces 22 Plaintiff's pay in by a phantom 5% commission when such commissions are normally split. The 23 proposal at 5(c) states that the entire sale is contingent upon my client’s consent to Plaintiff's 24 assumption of the mortgage. My client has never seen Plaintiff's offer and does not consent to this, 25 which immediately renders the entire proposal useless. 26 7. Turning to Plaintiff's opposition, Defendant is accused of a “scorched earth” campaign. 27 Not so. It is actually a “when the heck is the property going to be listed for sale as Plaintiff sued to 28 make happen back on 6/8/22, as the CCP requires, as Defendants agreed to, and as the court 4. REPLY DEC. ISO EX PARTE APPLICATION ordered 5 months ago to happen” campaign. The opposition mostly rales about a past, irrelevant TRO against my client which I have not fully investigated. Bringing it up can only serve to dampen enthusiasm for settlement. Paragraph 5 falsely asserts there was a settlement last year; this court held otherwise in recent motion practice. Paragraph 6 mentions a written offer to purchase; there have been many written offers to purchase on both sides. None have been accepted. The written offer that supports the retaliatory motion to confirm sale is the first one that was clandestine. I have never seen it. It is a written offer to Mr. Pecherer but not to myself or my clients. As for the nomination of Amy Harrington, she is eminently qualified and there are not many who have her experience. Plaintiff does not recommend anyone else and there is no conflict of interest indicated. 10 I declare under penalty ofperjury that the foregoing is true and correct and that this 11 declaration is executed on the date undersigned in Novato, California. 12 13 2, 14 Dated: November 20, 2023 LE AES fe Anthony Ben tivegna 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Se REPLY DEC. ISO EX PARTE APPLICATION EXHIBIT F Piazza Michael Pecherer Mon 10/16/2023 1:04 PM To:Michael Fish ;Anthony Bentivegna U 1 attachments (15 KB) MSP proposal 10-16-2023.docx; Gentlemen, please see attached, Michael -- Michael S. Pecherer Receiver and Referee in Partition michael@pecherer.com Office: 925-386-0943 Cell: 925-518-7076 October 16, 2023 Counsel in Piazza | strongly believe that his case should be settled. If we proceed to list the property, we will face a commission, a motion to confirm and a distribution motion, a final report of the referee and then the necessity of obtaining a final judgment of partition. That entails a lot of legal work and a lot of referee’s time. The differences between the parties would be overwhelmed by the attendant costs. As one last effort to avoid those expenses, and building on the offer that Mr. Fish presented last week, | propose the following resolution: 1. Olivia will buy the house and will assume the existing loan or will secure new financing, both at her expense. The transfer will occur through a title company and the title and escrow fees will be paid in the ordinary fashion for Sonoma County. It will close as soon as is practicable. The current loan balance is approximately $570,000. Without quibbling over the parties’ equity, | will assume that it is $240,000. | will assume that the real estate commission would be $48,000. That would reduce the equity to $191,000. By calculating in this fashion, the commission comes off the top and each side effectively absorbs half. Olivia pays the Defendants $95,700 which includes $14,000 reimbursement to Tory. The payments to the Defendant are made through the escrow. Upon the close of escrow, the parties stipulate to a final judgment of partition and the case ends. As an incentive, | will reduce my fees to $7,500 and each side will pay half through the escrow. The Defendant's half will come from the payment in paragraph 5. Olivia will deposit her half into the escrow. Each side absorbs their own attorney’s fees and costs. No further motions or court hearings. The Final Judgment is submitted by stipulation that | will prepare. 10 | will manage the escrow. | will use an escrow officer who is familiar with partition sales. The parties will promptly sign all documents required to close the transaction. Re: Piazza Michael Pecherer Wed 10/25/2023 12:55 PM To:Anthony Bentivegna Tony, | am proceeding in that fashion. | have identified an agent with experience in these matters and am trying to set up a meeting at the property. | am jammed this week with a writ petition but should get to it next week. Michael On Wed, Oct 25, 2023 at 12:48PM Anthony Bentivegna wrote: Michael | It being apparent that neither party agreed to the final proposal, | again ask that the property be listed | for 810 now in order to avoid the holidays when buyers are less likely. JOHNSTO SSOCIATES AUPORNEYS AF LAME FG Anthony Bentivegna, Esq. Of Counsel 1400 North Dutton Ave., Ste. 21 | Santa Rosa, CA 95401 T: 415/320-5031 | e: abentivegna@johnstonassociateslaw.com Wel : www, johnstonassociateslaw.com neni UNNI RIN SE panne pronananaransvarsranenenste ARVANA AINIRURIRIAY NOTICE: The information contained in (and attached to) this e-mail is intended only for the personal and confidential use of the designated recipient(s) named above. This message may be an attorney/client communication and as such is privileged and confidential. If the reader of this message is not the intended recipient, then you received this e-mail and any attachment in error, and any review, dissemination, distribution, or copying of this message is strictly prohibited. If you received this communication in error, then please notify us immediately by reply e-mail, and delete the original message, including each attachment. This email provides only general legal information, and not specific legal advice. Information contained in any email is not a substitute for a personal consultation with an attorney. This message does not provide any legal advice, imply an attorney-client relationship, and does not contain the signature of the sender or any other party. Do not rely on this message without specific authorization from the sender. You are not a client of this law firm unless you have paid a retainer and signed an attorney/client agreement for representation. From: Michael Pecherer Sent: Monday, October 16, 2023 1:04 PM To: Michael Fish ; Anthony Bentivegna Subject: Piazza Gentlemen, please see attached. Michael - Michael S. Pecherer Receiver and Referee in Partition michael@pecherer.com Office: 925-386-0943 | Cell: 925-518-7076 | -- Michael S. Pecherer Receiver and Referee in Partition michael@pecherer.com Office: 925-386-0943 Cell: 925-518-7076 Piazza Michael Pecherer Thu 11/2/2023 12:40 PM To:Michael Fish ;Anthony Bentivegna fam meeting with a real estate agent at the property tomorrow at 10 am. | intend to sign a listing agreement and proceed with the sale. | am going to let the agent propose a listing price as | have found that to be a better approach, Michael -- Michael S. Pecherer Receiver and Referee in Partition michael@pecherer.com Office: 925-386-0943 Cell: 925-518-7076 EXHIBIT G [proposedMICHAEL S. PECHERER, (SBN 47053) 24 Rio Vista Orinda, CA 94563 925-386-0943/ Cell: 925-518-7076 (Please use cell) michael@pecherer.con REFEREE IN PARTITION SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 TN AND FOR THE COUNTY OF SONOMA IL 12 OLIVIA PIAZZA, AN INDIVIDUAL, Case No.: SCV 270969 13 Plaintiff, [PROPOSED] ORDER CONFIRMING THE 14 vs. PARTITION SALE OF REAL PROPERTY 15 EUGENE PIAZZA, ET AL., 16 Defendants. 17 The Motion of the Court appointed Partition Referee to Confirm the Sale of Real 18 Property came on for hearing. All Parties appeared by counsel. The Court, having considered 19 20 the papers filed by all Parties and the files and records of this matter makes the following 21 Findings and Order. 22 FINDINGS: 23 1 This is a partition action involving a single family residence located at 7541 Windward 24 Drive in Rohnert Park (the “Property”). The Interlocutory Judgment determined that 25 26 Plaintiff Olivia Piazza and Defendant Eugene Piazza are co-owners. The Property is 27 subject to a mortgage of approximately $570,000. 28 [PROPOSED] ORDER CONFIRMING THE PARTITION SALE OF REAL PROPERTY - 1 The Interlocutory Judgment Ordered the Referee to sell the Property. However, listing of the Property was delayed as the Parties sought to negotiate a resolution of this matter which negotiations were unsuccessful. Plaintiff submitted an offer to the Referee to purchase the Defendant's interest and the Referee has recommended that offer be confirmed. The Court finds that the fair market value of the Property is $800,000 based upon the Referee’s analysis of comparative sales and the value estimates of the internet sites that deal with the values and sales of residential real property. 10 The terms of the Plaintiff's offer are as follows: IL 12 A. Purchase price based upon an overall valuation of $800,000. 13 B . The transfer will occur through Fidelity National Title Insurance Company. Title and 14 escrow fees will be allocated in the ordinary fashion for Sonoma County. 15 Purchase is conditioned on the Plaintiff's ability to assume the existing mortgage 16 which can be accomplished with the written consent of the Defendant obligors. The 17 18 loan balance is approximately $570,000. 19 The purchase price will be reduced by 5% which would have been the real estate 20 commission had the Property been conventionally listed. 21 The purchase price will also be reduced by $14,000 payable by Plaintiff to Victoria 22 Williams who 23 24 will provide into the escrow a complete release of the Plaintiff, from any and all 25 claims arising from the purchase and ownership of the Property and a dismissal of her 26 cross-complaint. The complaint in this matter will also be dismissed once the Court 27 has determined the allocation of the sale proceeds and the sale has closed. 28 [PROPOSED] ORDER CONFIRMING THE PARTITION SALE OF REAL PROPERTY - 2 F. Upon confirmation, the foregoing will be restated on the typical CAR forms or an equivalent. Based on the foregoing, the Plaintiff will deposit into escrow the total sum of $176,000 (+/-) adjusted for the Plaintiff's and Defendant's respective shares of the title and escrow costs as follows: Plaintiff will deposit $20,000 into escrow within three days of confirmation. The balance in excess of the earnest money deposit will be deposited in time for a scheduled closing. Prior to the closing of the transaction, the Court will determine the allocation of the 10 proceeds among the Parties which shall include any equitable reallocations, if any; 11 12 the Referee’s fees, attorneys’ fees; and any reimbursements for the payment of 13 expenses relating to the Property. 14 6. The Referee recommends that the Plaintiff's offer be confirmed. CONCLUSIONS AND ORDER: 16 1 The Plaintiff's offer is fair, just, and equitable in that is at fair market value, is fully 17 18 financed, and can close promptly. Accordingly, the Plaintiff's offer is confirmed. 19 The Plaintiff shall provide her offer to the Referee and to counsel for the Defendants on a 20 CAR form or the equivalent within five (5) business days of this Order. 21 The Referee shall arrange for an escrow to be opened and the Plaintiff shall deposit 22 $20,000 within three days of this Order. 23 24 All other terms and conditions of the Plaintiffs offer shall be implemented as promptly 25 as is practicable. 26 The Parties are ordered to execute all documents necessary to complete the confirmed 27 sale promptly as is requested by the title company. 28 [PROPOSED] ORDER CONFIRMING THE PARTITION SALE OF REAL PROPERTY - 3 1 6. The Court sets as the date when all issues relating to the financial obligations among the Parties, the fees of the Referee, any equitable reallocations, attorneys’ fees, and reimbursements shall be resolved. The Parties are directed to file all papers relating to those issues no later than 7 The sale shall close as soon as practicable after the Court has made the determinations specified in Paragraph 6 above and the proceeds of the sale shall be disbursed from the escrow accordingly. 10 IT IS SO ORDERED. 11 12 Dated: 13 14 15 Judge of the Superior Court 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER CONFIRMING THE PARTITION SALE OF REAL PROPERTY - 4 CASE: Piazza v Piazza et al CASE NO: SCV270969 I am employed in the County of Sonoma, State of California. Iam over the age of 18 and not a party to the within action. My business address is 1400 N Dutton Ave. Ste 21, Santa Rosa CA 95401. On November 21, 2023, at approximately 8:15 a.m. I serviced the foregoing document described below attached hereto on all interest parties in this action by the method indicated below and to the following address: 1 REPLY DECLARATION OF ANTHONY BENTIVEGNA IN SUPPORT OF EX PARTE APPLICATION TO REPLACE PARTITION REFEREE (CCP sec. 873.010(b)); MEMORANDUM Michael J. Fish Michael Pecherer Richard C, O’Hare By email: Anderson Zeigler, PC mpecherer@gmail.com 10 Attorneys for Plaintiffs and Cross- Defendants 11 By email: mfish@andersonzeigler.com; rohare@andersonzeigler.com and 12 ksfarzo@andersonzeigler.com> 13 Amy Harrington By email: amy_amyharringtonlaw.com 14 [] BY MAIL ~I deposited such envelope in the mail at Santa Rosa, California The envelope was 15 mailed with postage thereon fully prepaid. I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be 16 deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Santa Rosa, California (State) in the ordinary course of business. I am aware that on 17 motion of the party serviced service is presumed invalid if postal cancellation date or postage meter dates is more than one (1) day after date of deposit of mailing. 18 [XX] BY eSERVICE — Pursuant to Code of Civil Procedure section 1010.6 and California Rules 19 of Court section 2.256(1)(4), L affected electronic service of the documents indicated below to the attached e-mail service list by submitting an electronic PDF version of the 20 document(s) to Microsoft Outlook, through the user interface at johnstonassociateslaw.com at approximately 8:15 a.m. My eService address is: kpena@johnstonassociateslaw.com 21 [] VIA FACSIMILE ~ I faxed said document, to the office(s) of the addressee(s) shown above, 22 and the transmission was reported as complete and without error. 23 [] BY OVERNIGHT DELIVERY — I deposited such envelope for collection and delivery by FEDERAL EXPRESS with delivery fees paid or provided for in accordance with ordinary 24 business practices. I am “readily familiar” with the firm’s practice of collection and processing packages BY overnight delivery by FEDERAL EXPRESS. They are deposited 25 with a facility regularly maintained by FEDERAL EXPRESS for receipt on the same day in the ordinary course of business. 26 [] BY SERVICE BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED — On I 27 personally deposited a true copy by certified or registered mail, Return Receipt Requested, postage paid, addressed to the address(es) of the party(ies) above. 28 [] BY HAND DELIVERY: The correspondence or documents were placed in sealed, labeled envelopes and served by personal delivery to the party or attorney indicated herein or , if upon attorney, by leaving the labeled envelope at the court clerk’s office drop box. // I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on November 21, 2023, at Santa Rosa, California By: Kelsi Pena 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28