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Kurt Van Sciver, SBN 263957
VAN SCIVER LAW
5500 Ming Avenue, Suite 362
Bakersfield, CA 93309
Telephone: 661-412-7729
Email: Kurt@vansciverlaw.com
Attorneys for Plaintiff
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF KERN, METROPOLITAN DIVISION
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11 DONAHUE WYATT, individually and as Case No. BCV-22-102858
administrator of the estate of Frances Ann Wyatt,
12 TRIAL BRIEF OF DONAHUE WYATT
Plaintiff,
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Assigned to:
Vv.
14 Dept.:
Complaint Filed:
VONCILE CHAPMAN, an individual; Trial Date:
15 CHERRETTA WYATT, an individual;
16 GLADYS GAUSS aka GLADYS HERRING, an
individual; and DOES 1 through 50, inclusive,
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18 Defendants.
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PLEASE TAKE NOTICE that the plaintiff DONAHUE WYATT, individually and as
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administrator of the estate of Frances Ann Wyatt (“Plaintiff”) hereby submits his trial brief.
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General Statement of Facts
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On March 1, 2000, a final order of distribution was recorded in Kern County for the estate
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of Vera Wyatt. That order distributed the property at 2211 O Street, Bakersfield, CA (the
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Property”) to Frances Brown, Donahue Wyatt, Voncile Chapman, Cherretta Wyatt and Gladys
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Herring (now Gauss) in equal one-fifth shares.
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These five individuals were the children of Vera Wyatt.
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Since that time, the Property has been jointly owned. Frances Brown passed away on July
WITNESS LIST
5, 2004. No probate was opened until Plaintiff filed for probate in 2021 to facilitate the sale of the
Property.
In 2021, the parties had a buyer for the Property. Plaintiff was appointed administrator of
Frances’s estate to make the sale. However, Voncile Chapman refused to sign the deed. Instead,
she leased the property on or around April 1, 2022 and has collected rent. The lease rate is $1,000
a month. The total for two years is $24,000.
Plaintiff has also paid costs for the Property over the years for insurance and other fees.
Only Cherretta Wyatt and Voncile Chapman answered the complaint. Gladys Gauss has
been defaulted.
10 Procedure on Partition
11 Interests
12 Ata trial, “The interests of the parties, plaintiff as well as defendant, may be put in issue,
13 tried, and determined in the action.” (Code Civ. Proc., § 872.610.) “To the extent necessary to
14 grant the relief sought or other appropriate relief, the court shall upon adequate proof ascertain the
15 state of the title to the property.” (Code Civ. Proc., § 872.620.)
16 The ownership of the Property and disposition is not at issue. The answering defendants
17 admit: “DEFENDANTS assert that they are in full agreement with selling the PROPERTY and
18 splitting the proceeds of the sale equally between PLAINTIFF, DEFENDANTS, the Estate of
19 Frances Ann Wyatt, and Gladys Gauss aka Gladys Herring.” (Answer at 2:20-23.)
20 The dispute is over the rent received by Voncile Chapman.
21 “In a suit for partition * * * it is a general rule that all equities and conflicting claims
22 existing between the parties and arising out of their relation to the property to be partitioned may
23 be adjusted.” (Demetris v. Demetris (1954) 125 Cal.App.2d 440, 444-45.) “Where one cotenant
24 has paid more than his proportion of the purchase price of the land, he is entitled on partition to
25 an accounting therefor.” (Id. at 445.)
26 Accordingly, the Court has the equitable power to include the funds taken by Voncile and
27 funds paid by Plaintiff is allocating the interests.
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WITNESS LIST
Right to Partition
“At the trial, the court shall determine whether the plaintiff has the right to partition.”
(Code Civ. Proc., § 872.710(a).) “Except as provided in Section 872.730, partition as to
concurrent interests in the property shall be as of right unless barred by a valid waiver.” (Id. §
872.710(b).)
Accordingly, partition here is by right.
“If the court finds that the plaintiff is entitled to partition, it shall make an interlocutory
judgment that determines the interests of the parties in the property and orders the partition of the
property and, unless it is to be later determined, the manner of partition.” (Code Civ. Proc., §
10 872.730.)
ll Manner of Partition
12 Generally, property is divided. (Code Civ. Proc., § 872.810.)
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Notwithstanding Section 872.810, the court shall order that the property be sold
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and the proceeds be divided among the parties in accordance with their interests
15 in the property as determined in the interlocutory judgment in the following
situations:
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(a) The parties agree to such relief, by their pleadings or otherwise.
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(b) The court determines that, under the circumstances, sale and division
18 of the proceeds would be more equitable than division of the property.
19 (Code Civ. Proc., § 872.820.) Both (a) and (b) apply here. (See Answer at 2:20-23.) The Property
20 is a house and cannot be divided into five pieces.
21 Referee Appointment
22 “The court shall appoint a referee to divide or sell the property as ordered by the court.”
23 (Code Civ, Proc., § 873.010(a).)
24 Sale Procedures
25 “The referee appointed by the court to make a sale of the property shall sell the property in
26 the manner and following the procedures provided in this chapter.” (Code Civ. Proc., § 873.510.)
27 “The property shall be sold at public auction or private sale as the court determines will be
28 more beneficial to the parties. For the purpose of making this determination, the court may refer
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WITNESS LIST
the matter to the referee and take into account the referee's report.” (Code Civ. Proc., § 873.520.)
The referee must make a notice of sale. (Id. § 873.640.)
To consummate a sale, it must be confirmed by the Court. (Id. § 873.720.)
Requested Relief
Based on these principles of law, Plaintiff seeks the following:
1 A finding that the Property is held equally by the Estate of Frances Brown, Donahue
Wyatt, Voncile Chapman, Cherretta Wyatt and Gladys Herring (now Gauss)
A finding that Voncile’s share shall be lessened by the rent received in the amount of
$24,000.00, and any other funds received
10 A finding that Plaintiff shall be reimbursed all amounts paid by Plaintiff for upkeep of
11 the Property
12 A finding that Plaintiff has a right to partition
13 A finding that the parties have agreed to a partition by sale
14 Appointment of a referee to sell the Property
15 Instructions to the referee to sell the Property at a private sale.
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19 Dated: May /, 2024 VAN SCIVER LAW
WM
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By
KURT VAN SCIVER
22 Attorneys for Plaintiff
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WITNESS LIST
Case No. BCV-22-102858
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF KERN
1am employed in the County of Kern, State of California. I am over the age of eighteen
years and not a party to the within action; my business address is 5500 Ming Ave., Ste 362,
Bakersfield, CA 93309. My email address is elaine@vansciverlaw.com.
On May 8, 2024, I served the following document(s) described as
TRIAL BRIEF OF DONAHUE WYATT
on the interested parties in this action by placing a copy thereof enclosed in sealed envelopes
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addressed as follows:
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SEE ATTACHED LIST
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BY MAIL T enclosed such document in sealed envelope(s) with the name(s) and
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address(s) of the person(s) served as shown on the envelope(s) and caused such envelope(s) to be
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deposited in the mail at Bakersfield, California. The envelope(s) was/were mailed with postage
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thereon fully prepaid. I am "readily familiar" with the firm's practice of collection and
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processing correspondence for mailing. It is deposited with the U.S. postal service on that same
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day in the ordinary course of business. I am aware that on motion of party, service is presumed
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invalid if postal cancellation date or postage meter date is more than one day after date of deposit
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for mailing in affidavit.
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Executed on May 8, 2024, at Bakersfield, California.
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I declare under penalty of perjury under the laws of the State of California that the
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foregoing is true and correct.
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Cae VOR
24 Elaine Noriega S
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SERVICE LIST
Cherretta Wyatt
15288 Black Shadow Drive
Moreno Valley, CA 92551
Voncile Chapman
1305 Fairview Road
Bakersfield, CA 93307
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Preview
Kurt Van Sciver, SBN 263957 VAN SCIVER LAW 5500 Ming Avenue, Suite 362 Bakersfield, CA 93309 Telephone: 661-412-7729 Email: Kurt@vansciverlaw.com Attorneys for Plaintiff SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF KERN, METROPOLITAN DIVISION 10 11 DONAHUE WYATT, individually and as Case No. BCV-22-102858 administrator of the estate of Frances Ann Wyatt, 12 TRIAL BRIEF OF DONAHUE WYATT Plaintiff, 13 Assigned to: Vv. 14 Dept.: Complaint Filed: VONCILE CHAPMAN, an individual; Trial Date: 15 CHERRETTA WYATT, an individual; 16 GLADYS GAUSS aka GLADYS HERRING, an individual; and DOES 1 through 50, inclusive, 17 18 Defendants. 19 20 PLEASE TAKE NOTICE that the plaintiff DONAHUE WYATT, individually and as 21 administrator of the estate of Frances Ann Wyatt (“Plaintiff”) hereby submits his trial brief. 22 General Statement of Facts 23 On March 1, 2000, a final order of distribution was recorded in Kern County for the estate 24 of Vera Wyatt. That order distributed the property at 2211 O Street, Bakersfield, CA (the 25 Property”) to Frances Brown, Donahue Wyatt, Voncile Chapman, Cherretta Wyatt and Gladys 26 Herring (now Gauss) in equal one-fifth shares. 27 These five individuals were the children of Vera Wyatt. 28 Since that time, the Property has been jointly owned. Frances Brown passed away on July WITNESS LIST 5, 2004. No probate was opened until Plaintiff filed for probate in 2021 to facilitate the sale of the Property. In 2021, the parties had a buyer for the Property. Plaintiff was appointed administrator of Frances’s estate to make the sale. However, Voncile Chapman refused to sign the deed. Instead, she leased the property on or around April 1, 2022 and has collected rent. The lease rate is $1,000 a month. The total for two years is $24,000. Plaintiff has also paid costs for the Property over the years for insurance and other fees. Only Cherretta Wyatt and Voncile Chapman answered the complaint. Gladys Gauss has been defaulted. 10 Procedure on Partition 11 Interests 12 Ata trial, “The interests of the parties, plaintiff as well as defendant, may be put in issue, 13 tried, and determined in the action.” (Code Civ. Proc., § 872.610.) “To the extent necessary to 14 grant the relief sought or other appropriate relief, the court shall upon adequate proof ascertain the 15 state of the title to the property.” (Code Civ. Proc., § 872.620.) 16 The ownership of the Property and disposition is not at issue. The answering defendants 17 admit: “DEFENDANTS assert that they are in full agreement with selling the PROPERTY and 18 splitting the proceeds of the sale equally between PLAINTIFF, DEFENDANTS, the Estate of 19 Frances Ann Wyatt, and Gladys Gauss aka Gladys Herring.” (Answer at 2:20-23.) 20 The dispute is over the rent received by Voncile Chapman. 21 “In a suit for partition * * * it is a general rule that all equities and conflicting claims 22 existing between the parties and arising out of their relation to the property to be partitioned may 23 be adjusted.” (Demetris v. Demetris (1954) 125 Cal.App.2d 440, 444-45.) “Where one cotenant 24 has paid more than his proportion of the purchase price of the land, he is entitled on partition to 25 an accounting therefor.” (Id. at 445.) 26 Accordingly, the Court has the equitable power to include the funds taken by Voncile and 27 funds paid by Plaintiff is allocating the interests. 28 WITNESS LIST Right to Partition “At the trial, the court shall determine whether the plaintiff has the right to partition.” (Code Civ. Proc., § 872.710(a).) “Except as provided in Section 872.730, partition as to concurrent interests in the property shall be as of right unless barred by a valid waiver.” (Id. § 872.710(b).) Accordingly, partition here is by right. “If the court finds that the plaintiff is entitled to partition, it shall make an interlocutory judgment that determines the interests of the parties in the property and orders the partition of the property and, unless it is to be later determined, the manner of partition.” (Code Civ. Proc., § 10 872.730.) ll Manner of Partition 12 Generally, property is divided. (Code Civ. Proc., § 872.810.) 13 Notwithstanding Section 872.810, the court shall order that the property be sold 14 and the proceeds be divided among the parties in accordance with their interests 15 in the property as determined in the interlocutory judgment in the following situations: 16 (a) The parties agree to such relief, by their pleadings or otherwise. 17 (b) The court determines that, under the circumstances, sale and division 18 of the proceeds would be more equitable than division of the property. 19 (Code Civ. Proc., § 872.820.) Both (a) and (b) apply here. (See Answer at 2:20-23.) The Property 20 is a house and cannot be divided into five pieces. 21 Referee Appointment 22 “The court shall appoint a referee to divide or sell the property as ordered by the court.” 23 (Code Civ, Proc., § 873.010(a).) 24 Sale Procedures 25 “The referee appointed by the court to make a sale of the property shall sell the property in 26 the manner and following the procedures provided in this chapter.” (Code Civ. Proc., § 873.510.) 27 “The property shall be sold at public auction or private sale as the court determines will be 28 more beneficial to the parties. For the purpose of making this determination, the court may refer 3 WITNESS LIST the matter to the referee and take into account the referee's report.” (Code Civ. Proc., § 873.520.) The referee must make a notice of sale. (Id. § 873.640.) To consummate a sale, it must be confirmed by the Court. (Id. § 873.720.) Requested Relief Based on these principles of law, Plaintiff seeks the following: 1 A finding that the Property is held equally by the Estate of Frances Brown, Donahue Wyatt, Voncile Chapman, Cherretta Wyatt and Gladys Herring (now Gauss) A finding that Voncile’s share shall be lessened by the rent received in the amount of $24,000.00, and any other funds received 10 A finding that Plaintiff shall be reimbursed all amounts paid by Plaintiff for upkeep of 11 the Property 12 A finding that Plaintiff has a right to partition 13 A finding that the parties have agreed to a partition by sale 14 Appointment of a referee to sell the Property 15 Instructions to the referee to sell the Property at a private sale. 16 17 18 19 Dated: May /, 2024 VAN SCIVER LAW WM 20 21 By KURT VAN SCIVER 22 Attorneys for Plaintiff 23 24 25 26 27 28 WITNESS LIST Case No. BCV-22-102858 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF KERN 1am employed in the County of Kern, State of California. I am over the age of eighteen years and not a party to the within action; my business address is 5500 Ming Ave., Ste 362, Bakersfield, CA 93309. My email address is elaine@vansciverlaw.com. On May 8, 2024, I served the following document(s) described as TRIAL BRIEF OF DONAHUE WYATT on the interested parties in this action by placing a copy thereof enclosed in sealed envelopes 10 addressed as follows: 11 SEE ATTACHED LIST 12 BY MAIL T enclosed such document in sealed envelope(s) with the name(s) and 13 address(s) of the person(s) served as shown on the envelope(s) and caused such envelope(s) to be 14 deposited in the mail at Bakersfield, California. The envelope(s) was/were mailed with postage 15 thereon fully prepaid. I am "readily familiar" with the firm's practice of collection and 16 processing correspondence for mailing. It is deposited with the U.S. postal service on that same 17 day in the ordinary course of business. I am aware that on motion of party, service is presumed 18 invalid if postal cancellation date or postage meter date is more than one day after date of deposit 19 for mailing in affidavit. 20 Executed on May 8, 2024, at Bakersfield, California. 21 I declare under penalty of perjury under the laws of the State of California that the 22 foregoing is true and correct. 23 Cae VOR 24 Elaine Noriega S 25 26 27 28 SERVICE LIST Cherretta Wyatt 15288 Black Shadow Drive Moreno Valley, CA 92551 Voncile Chapman 1305 Fairview Road Bakersfield, CA 93307 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28