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Robert J.Enos, Esq. (SBN: 182956)
Superior Cour t of California
Tanner N. Puryear, Esq. (SBN: 320826) County of Placer
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BPE LAW GROUP, PC
2339 Gold Meadows Way, Suite 101 FEB 27 2020 J
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Gold River, CA 95670 Jake Chatters
Tel. 916.966.2260 Executive Officer & Clerk
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Fax 916.346.4880 By: L.Sanders, Deputy
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Attorneys for Plaintiff
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Staci Silva
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SUPERIOR COURT OF CALIFORNIA
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COUNTY OF PLACER
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STACI SILVA, ) Case No.: SCV0043055
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Plaintiff, MEMORANDUM OF POINTS AND
) AUTHORITIES IN SUPPORT OF
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) MOTION FOR SUMMARY
Vs. ) ADJUDICATION UNDER CCP SECTION
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Ema neste | nn Caen ere
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) 437e FOR INTERLOCUTORY
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unknown claiming any legal or equitable title, . 3
estate, lien, or interest in the real property ) APPOINTMENT OF A REFEREE UNDER
4 p a ald ed a CCP SECTION 873.010; FOR
described in the Complaint junior to Plaintiff's DISTRIBUTION OF ASSETS; AND
Title; and DOES 1-25, inclusive, REQUEST FOR ATTORNEY FEES AND
COSTS
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Defendants. Date: May 15, 2020
Time: 9:00 a.m.
Dept: Law and Motion
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Cmplt: May 15, 2019
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) Trial: October 19, 2020
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Plaintiff hereby moves for summary adjudication for an interlocutory order of sale on 3975
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Baltic Circle, Rocklin, California 95677, jointly owned with Defendant Linda K. Ellingson. Plaintiff
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moves for summary adjudication because there isno triable issue as to their right to a sale. (Cal. Code
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of Civ. Proc. §437c (a), (b), (f), (1).) Plaintiff also seeks an order of sale with the distribution of assets
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made in accordance with each parties’ interest, for an order that a referee be appointed to sell the subject
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
File#:2770,000
property, and for an order that Defendant Linda K. Ellingson pay Plaintiff's attorney fees and cost for
having to bring this motion.
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BACKGROUND
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On or about June 30, 2006, pursuant to an agreement between
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the parties, and using $108,000 in
funds provided by Plaintiff for a down payment, Defendant purchased the Property.
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A true and correct
copy of the Grant Deed recorded on or about June 30, 2006 is attached hereto and incorporated by
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reference as Exhibit “1.” (Undisputed Fact (UF) # 1.) Defendant
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was able to qualify for the Property’s
purchase money loan by including in her income the monthly amount she expected to receive from
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10 Plaintiff for the property’s mortgage payment and monthly upkeep. Despite Plaintiff's recent
11 bankruptcy, which precluded her from serving as borrower on the purchase money loan or initially
12 holding joint title,the parties agreed they would equally share the financial responsibility associated
13 with the Property.
14 On or around January 2017, Defendant became unemployed and was unable to contribute her
15 one-half share of the Property’s mortgage and household expense payments.
16 On or about December 28, 2017, a Grant Deed granting to Plaintiff Staci Silva and Defendant
17 Linda K. Ellingson each an undivided '% interest in the real property located at 3975 Baltic Circle,
18 Rocklin, California 95677, was recorded with the County of Placer’s Office, as follows:
19 FOR A VALUABLE CONSIDERATION, receipt of which ishereby acknowledged,
20
Linda K. Ellingson, an unmarried woman
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hereby GRANT(S) to
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Linda K. Ellingson, an unmarried woman
23 and Staci Silva, a married woman, as her sole
and separate property, all as joint tenants.
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the following described real property in the City of Rocklin
25 County of Placer, State of California:
26 Lot 91, AS SHOWN ON THE MAP OF ANTELOPE OAKS UNIT NO. 2, TRACT NO.
27 461, FILED NOVEMBER 19, 1981, IN BOOK OF MAPS, PAGE 40, PLACER COUNTY
RECORDS, AND AS MODIFIED BY CERTIFICATE OF CORRECTION, RECORDED
28 AUGUST 6, 1984 IN BOOK 2720, PAGE 650, PLACER COUNTY RECORDS.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
File#:270.000
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A true and correct copy of the Grant Deed recorded on or about December 28, 2017 is attached
hereto and incorporated by reference as Exhibit “2.” (UF # 2.)
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On or about December 28, 2017, a Quitclaim Deed, granting to Staci Silva, a married woman as
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her sole and separate property, an undivided '4 interest in the real property located at 3975 Baltic Circle,
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Rocklin, California 95677, was recorded with the County of Placer’s Office, as follows:
FOR A VALUABLE CONSIDERATION, receipt of which ishereby acknowledged,
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Kelly Ann Hoeppner (spouse of Staci Silva)
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do(es) hereby REMISE, RELEASE, and FOREVER QUITCLAIM to
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Staci Silva, amarried woman as her sole and separate property
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10 the following real property in the City of Rocklin, County of Placer, State of California:
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Lot 91, AS SHOWN ON THE MAP OF ANTELOPE OAKS UNIT NO. 2, TRACT NO.
12 461, FILED NOVEMBER 19, 1981, IN BOOK OF MAPS, PAGE 40, PLACER COUNTY
13 RECORDS, AND AS MODIFIED BY CERTIFICATE OF CORRECTION, RECORDED
AUGUST 6, 1984 IN BOOK 2720, PAGE 650, PLACER COUNTY RECORDS.
14
A true and correct copy of the Quitclaim Deed recorded on or about December 28, 2017 is
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attached hereto and incorporated by reference as Exhibit “3.” (UF # 3.) Simultaneous to this change in
16
17 title,the Property’s purchase money loan was refinanced with both parties serving as borrowers. A true
18 and correct copy of the Deed of Trust is attached hereto and incorporated by reference as Exhibit “4.”
19 (UF #4.)
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In the time period following the refinance of the Property’s purchase money loan. Defendant has
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continually refused to both obtain new employment or resume fullpayment of her one-half share of the
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Property’s mortgage and household expenses has caused Plaintiff financial damage.
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On or about April 12, 2019 a good faith Meet and Confer letter was sent to the Defendant
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demanding that the Subject Property be partitioned by appraisal and that Plaintiff be allowed to purchase
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Defendant’s interest in the Subject Property, subject to an accounting of the parties’ respective financial
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contributions to the Subject Property’s acquisition and maintenance. A true and correct copy of the Meet
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and Confer Letter dated April 12, 2019 is attached hereto and incorporated by reference as Exhibit “5.”
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
File#:2770.000
(UF #5.) Moreover, Defendant was informed that Plaintiff was seeking an amicable solution in lieu of
costly litigation.
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Because Defendant failed or refused to agree to the sale and distribution of the Subject Property,
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on May 15, 2019, Plaintiff was forced to file a summons and complaint for Partition by Appraisal and
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Accounting and has incurred attorney fees and costs. A true and correct copy of the Complaint is
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attached hereto and incorporate by reference as Exhibit “6.” (UF #6.) This complaint for Partition and
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Accounting alleges in part: “...that each party recovers their fair share related to the Property with each
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party to then receive 2 of any remaining sale proceeds.”
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LAW AND ARGUMENT
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I. INTERLOCUTORY JUDGMENT; PARTITION BY SALE
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Cal. Code of Civ. Proc. section 437c, “Grounds for and effect of summary judgment; procedure
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on motion,” provides in pertinent part:
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(a)(1) Any party may move for summary judgment in any action or proceeding if itis
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contended that the action has no merit or that there is no defense to the action or
proceeding. The motion may be made at any time after 60 days have elapsed since the
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general appearance in the action or proceeding of each party against whom the motion is
directed or at any earlier time after the general appearance that the court, with or without
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notice and upon good cause shown, may direct.
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(aX(2) Notice of the motion and supporting papers shall be served on all other parties to
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the action at least 75 days before the time appointed for hearing. However, if the notice is
served by mail, the required 75-day period of notice shall be increased by five days if the
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place of address is within the State of California, 10 days ifthe place of address is outside
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the State of California but within the United States, and 20 days if the place of address is
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outside the United States, and ifthe notice isserved by facsimile transmission,
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Express Mail, or another method of delivery providing for overnight delivery, the
required 75-day period of notice shall be increased by two court days.
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(a)(3) The motion shall be heard no later than 30 days before the date of trial,unless the
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court for good cause orders otherwise. The filing of the motion shall not extend the time
within which a party must otherwise file a responsive pleading.
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(b)(1) The motion shall be supported by affidavits, declarations, admissions, answers to
interrogatories, depositions, and matters of which judicial notice shall or may be taken.
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The supporting papers shall include a separate statement setting forth plainly and
concisely all material facts which the moving party contends are undisputed. Each of the
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material facts stated shall be followed by a reference to the supporting evidence. The
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
File#;270.000
failure to comply with this requirement of a separate statement may in the court's
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discretion constitute a sufficient ground for denying the motion.
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(2) Any opposition to the motion shall be served and filed not less than 14 days preceding
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the noticed or continued date of hearing, unless the court for good cause orders otherwise.
The opposition, where appropriate, shall consist of affidavits, declarations, admissions,
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answers to interrogatories, depositions, and matters of which judicial notice shall or may
be taken.
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(3) The opposition papers shall include a separate statement that responds to each of the
material facts contended by the moving party to be undisputed, indicating whether the
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opposing party agrees or disagrees that those facts are undisputed. The statement also
shall set forth plainly and concisely any other material facts that the opposing party
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contends are disputed. Each material fact contended by the opposing party to be disputed
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shall be followed by a reference to the supporting evidence. Failure to comply with this
requirement of a separate statement may constitute a sufficient ground, in the court's
discretion, for granting the motion.
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(4) Any reply to the opposition shall be served and filed by the moving party not less than
five days preceding the noticed or continued date of hearing, unless the court for good
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cause orders otherwise.
(5) Evidentiary objections not made at the hearing shall be deemed waived.
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(6) Except for subdivision (c) of Section 1005 relating to the
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method of service of
opposition and reply papers, Sections 1005 and 1013, extending the time within which a
right may be exercised or an
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act may be done, do not apply to this section.
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(7) Any incorporation by reference of matter in the court's file shall set forth with
specificity the exact matter to which reference isbeing made and shall not incorporate the
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entire file.
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(c) The motion for summary judgment shall be granted if allthe papers submitted show
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that there is no triable issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law. In determining whether the papers show that there is no
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triable issue as to any material fact the court shall consider all
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of the evidence set forth in
the papers, except that to which objections have been made and sustained by the court,
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and all inferences reasonably deducible from the evidence, except summary judgment
may not be granted by the court based on inferences reasonably deducible from the
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evidence, if contradicted by other inferences or evidence, which raise a triable issue as to
any material fact.
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(d) Supporting and opposing
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affidavits or declarations shall be made by any person on
personal knowledge, shall set forth admissible evidence, and shall show affirmatively that
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the affiant is competent to testify to the matters stated in the affidavits or declarations.
Any objections based on the failure to comply with the requirements of this subdivision
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shali be made at the hearing or shall be deemed waived.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
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(¢) Ifa party is otherwise entitled to a summary judgment pursuant to this section,
summary judgment may not be denied on grounds of credibility or for want of cross-
examination of witnesses furnishing affidavits or declarations in support of the summary
judgment, except that summary judgment may be denied in the discretion of the court,
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where the only proof of a material fact offered in support of the summary judgment isan
affidavit or declaration made by an individual who was the sole witness to that fact; or
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where a material fact is an individual 'sstate of mind, or lack thereof, and that fact is
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sought to be established solely by the individual 'saffirmation thereof.
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(f)(1) A party may move for summary adjudication as to one or more causes of action
within an action, one or more affirmative defenses, one or more claims for damages, or
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one or more issues of duty, ifthat party contends that the cause of action has no merit or
that there is no affirmative defense thereto,
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or that there is no merit to an affirmative
defense as to any cause of action, or both, or that there isno merit to a claim for damages,
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as specified in Section 3294 of the Civil Code, or that one or more defendants either
owed or did not owe a duty to the plaintiff or plaintiffs. Amotion for summary
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adjudication shall be granted only ifit completely disposes of a cause of action, an
11 affirmative defense, a claim for damages, or an issue of duty.
12 Cal. Code of Civ. Proc. section 872.720. Interlocutory Judgment, provides in full:
13 (a) Ifthe 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
14
partition of the property and, unless it isto be later determined, the manner of
15 partition.
16 (b) Ifthe court determines that it isimpracticable or highly inconvenient to make a single
interlocutory judgment that determines, in the first instance, the interests of all the
17 parties in the property, the court may firstascertain the interests of the original
18 concurrent or successive owners and thereupon make an interlocutory judgment as if
such persons were the sole parties in interest and the only parties to the action.
19 Thereafter, the court may proceed in like manner as between the original concurrent
or successive owners and the parties claiming under them or may allow the interests
20 to remain without further partition if the parties so desire.
21 An interlocutory judgment must be awarded under CCP §872.720, because Plaintiff Staci Silva
22
is ajoint owner with Defendant Linda K. Ellingson as matter of law due to that certain Grant Deed and
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Quitclaim Deed, which was recorded on December 28, 2017. (UF #2 and # 3.) Plaintiff's % title
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interest in the subject property was recorded on December 28, 2017. (UF #2 and # 3.) Moreover,
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26 Defendant Linda K. Ellingson admitted in her Answer to the Complaint and in her Response to Request
27 for Admissions, Set One, that she holds a one-half interest in the subject property with Plaintiff. (UF #
28 7.) A true and correct copy of the Answer to the Complaint is attached as Exhibit “7,” A notice of
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
File#:2770.000
pendency of action was recorded on February 25, 2020. A true and correct copy of the recorded notice
of pendency of action is attached as Exhibit “8.” (UF # 8.)
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Evidence Code Section 622. Facts recited in written instrument, provides:
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The facts recited in a written instrument are conclusively presumed to be true as between
the parties thereto, or their successors in interest; but this rule does not apply to the recital
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of a consideration.
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Defendant has a very high burden of proof should she try to contradict Plaintiff stitle interest
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and subsequent right to sale of the subject property. If an order of sale is not granted, then Plaintiff will
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suffer loss of value, and will continue to submit to Defendant’s unilateral resistance and delay with
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10 regards to the sale. Accordingly, this Court must grant summary adjudication and order a sale of 3975
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Baltic Circle, Rocklin, California 95677.
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Il. DIVISION OF PROCEEDS IN ACCORDANCE WITH INTEREST
13
Cal. Code of Civ. Proc. Section 872.810. Division in accordance with interests, provides:
14
15 The court shall order that the property be divided among the parties in accordance with
their interests in the property as determined in the interlocutory judgment.
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Cal. Code of Civ. Proc. Section 872.820. Sale of property division of proceeds, provides:
17
18 Notwithstanding Section 872.810, the court shall order that the property be sold and the
proceeds be divided among the parties in accordance with their interests in the property
19 as determined in the interlocutory judgment in the following situations:
20 (a) The parties agree to such relief, by their pleadings or otherwise.
21 (b) The court determines that, under the circumstances, sale and division of the proceeds
22 would be more equitable than division of the property. For the purpose of making the
determination, the court may appoint a referee and take into account his report.
23
Cal. Code of Civ. Proc. Section 872.830. Partial division and sale, provides:
24
If, in making a determination whether sale would be more equitable than division of the
25 property, the court finds that sale and division of proceeds for part of the property would
26 be more equitable than division of the whole property, the court may order that such part
be sold and the remainder divided.
27
Cal. Code of Civ. Proc. Section 874.010. Inclusions, provides:
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
File#:2770.000
The costs of partition include:
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(a) Reasonable attorney's fees incurred or paid by a party for the common benefit.
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(>) The fee and expenses of the referee.
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(c) The compensation provided by contract for services of a surveyor or other person
employed by the referee in the action.
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(d) The reasonable costs of a titlereport procured pursuant to Section 872.220 with
interest thereon at the legal rate from the time of payment or, ifpaid before
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commencement of the action, from the time of commencement of the action.
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(e) Other disbursements or expenses determined by the court to have been incurred or
paid for the common benefit.
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Cal. Code of Civ. Proc. Section 874.040. Apportionment of costs, provides:
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Except as otherwise provided in this article, the court shall apportion the costs of partition
among the parties in proportion to their interests or make such other apportionment as
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may be equitable.
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Defendant has refused to voluntarily sell the subject property; thus, Plaintiff has incurred
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needless attorney fees and costs. Accordingly, Defendant should have to cover those fees and take a
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smaller interest in the proceeds at the time of distribution.
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Il. APPOINTMENT OF REFEREE TO SELL PROPERTY AND TO DISTRIBUTE
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PROCEEDS OF SALE
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Cal. Code of Civ. Proc. Section 873.010. Appointment; power and duty of court, provides:
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(a) The court shall appoint a referee to divide or sell the property as ordered by the court.
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(b) The court may:
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(1) Determine whether a referee's bond is necessary and fix the amount of the bond.
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(2) Instruct the referee.
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(3) Fix the reasonable compensation for the services of the referee and provide for
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payment of the referee's reasonable expenses.
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(4) Provide for the date of commencement of the lien of the referee allowed by law.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
File
#:2770.000
(5) Require the filing of interim or final accounts of the referee, settle the accounts of the
referee, and discharge the referee.
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(6) Remove the referee.
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(7) Appoint a new referee.
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Upon the granting of the interlocutory order of sale, the Court is requested to appoint as referee a
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qualified licensed real estate agent to act as referee to facilitate the marketing and sale of the subject
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property. The referee can also prepare a report which can act as escrow instructions for the distribution
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of assets in accordance with each party’s 2 interest, along with the payment of attorney fees from
Defendant Linda K. Ellingson’s share. Plaintiff hereby requests this court appoint Chad Phillips of
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11 RE/MAX Gold to act as referee charged with the sale of the subject property located at 3975 Baltic
12 Circle, Rocklin, California 95677. He has consented to the appointment and is fully qualified to conduct
13 an open market transaction. His contact information is as follows.
14
15 Chad Phillips, Broker Associate
RE/MAX Gold
16 2998 Douglas Blvd Suite 125
Roseville, CA 95661
17 (916) 390-1476
Real Estate License No. 01405825
18
19
Following the sale of the subject property, and the payment of escrow and referee fees and costs,
20
the proceeds from the sale shall remain in escrow pending an evidentiary hearing to determine the
21
appropriate apportionment of costs, attorney fees, and otherwise determine the equitable distribution of
22
23 proceeds.
24 CONCLUSION
25 Plaintiff owns a '% titleinterest in 3975 Baltic Circle, Rocklin, California 95677, and is entitled
26
to an interlocutory order of sale as a matter of law. Defendant cannot meet her burden to overcome the
27
titleinterest presented in the Grant Deed recorded on December 28, 2017. Accordingly, this Court is
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
File#:2770.000
respectfully requested to grant summary adjudication and to make an order for the sale of 3975 Baltic
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Circle, Rocklin, California 95677, for an order appointing a referee to sell the subject property, for an
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order distributing the proceeds of the sale in accordance with each parties interest, and for an order that
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Defendant Linda K. Ellingson pay Plaintiff's attorney fees and costs for having to file this lawsuit.
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DATED: 02/2 re 2020 BPE LAW GROUP, PC.
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Robert J. Enos, Esq.
Tanner N. Puryear, E
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Attorneys for Plaintiff
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
File#:2770,000
EXHIBIT 1
DINGn
RECORAmerica STEDy
REQUECompan BY UNA Vi ALATA
First Title PLACER ptoaty 8 ecorder
AND WHEN RECORDED MAIL TO: a 2006-0070169
Linda K Ellingson Roct i-FIRST ge wi
Pole ch ose? Friday: J an : ae-O0:SBS $2.08
@@:REC
itl pd §607.00 "rT
vpevenuove TitsLine
forRecarder’s
UseCay
A.P.N.: 010-440-028-000 FileNo.: 3415-2407063 (CH)
GRANT DEED
The Undersigned
Grantor(s)
Declare(s):
DOCUMENTARY TRANSFER TAX $594.00;CITYTRANSFERTAX $0.00;
SURVEY MONUMENT FEE$
{ * } computedon the
consideration
orfull value
of property
conveyed,OR
[ J computedon the
consideration
orfull
valueless
value
ofliens
and/orencumbrances
remaining
attimeofsale,
[ ] unincorporated
area;( x] City
ofRocklin,and
FOR A VALUABLE CONSIDERATION, receipt ofwhich is hereby acknowledged, Micheal Roddy and Stephanie
Roddy, husband and wife as joint tenants
hereby GRANTS to Linda K Ellingson, an unmarried woman
the following described property in the Cityof Rocklin, County of Placer, State of California:
LOT 91, AS SHOWN ON THE “MAP OF ANTELOPE OAKS UNIT NO. 2,TRACT NO, 461", FILED
NOVEMBER 19, 1981, IN BOOK N OF MAPS, PAGE 40, PLACER COUNTY RECORDS, AND AS
MODIFIED BY CERTIFICATE OF CORRECTION, RECORDED AUGUST 6, 1984, IN BOOK 2720,
PAGE 650, PLACER COUNTY RECORDS.
Dated: __ 06/19/2006
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RA,
“Micheal
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Roddy
(CaN =X Stephanie Roddy
MailTaxStatementsTo: SAME AS ABOVE \n
A.P.N.: 010-440-028-000 Grant Deed - continued FileNo.:3415-2407063
, (CH)
Date: 06/19/2006
STATE OF 7 Foes 1A ss
COUNTY OF 55 IEGO i)
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Robert J.Enos, Esq. (SBN: 182956) Superior Cour t of California Tanner N. Puryear, Esq. (SBN: 320826) County of Placer BH BPE LAW GROUP, PC 2339 Gold Meadows Way, Suite 101 FEB 27 2020 J WH Gold River, CA 95670 Jake Chatters Tel. 916.966.2260 Executive Officer & Clerk Se Fax 916.346.4880 By: L.Sanders, Deputy A Attorneys for Plaintiff BA Staci Silva SS SUPERIOR COURT OF CALIFORNIA S&S COUNTY OF PLACER oO STACI SILVA, ) Case No.: SCV0043055 eet Plaintiff, MEMORANDUM OF POINTS AND ) AUTHORITIES IN SUPPORT OF ON ) MOTION FOR SUMMARY Vs. ) ADJUDICATION UNDER CCP SECTION lUlWwh Ema neste | nn Caen ere Oe ) 437e FOR INTERLOCUTORY trl A unknown claiming any legal or equitable title, . 3 estate, lien, or interest in the real property ) APPOINTMENT OF A REFEREE UNDER 4 p a ald ed a CCP SECTION 873.010; FOR described in the Complaint junior to Plaintiff's DISTRIBUTION OF ASSETS; AND Title; and DOES 1-25, inclusive, REQUEST FOR ATTORNEY FEES AND COSTS OOS Defendants. Date: May 15, 2020 Time: 9:00 a.m. Dept: Law and Motion lUOSN ) OND OO Cmplt: May 15, 2019 BRD ) Trial: October 19, 2020 NO ) UUM Plaintiff hereby moves for summary adjudication for an interlocutory order of sale on 3975 NH Baltic Circle, Rocklin, California 95677, jointly owned with Defendant Linda K. Ellingson. Plaintiff NH moves for summary adjudication because there isno triable issue as to their right to a sale. (Cal. Code OO NO of Civ. Proc. §437c (a), (b), (f), (1).) Plaintiff also seeks an order of sale with the distribution of assets SN NM made in accordance with each parties’ interest, for an order that a referee be appointed to sell the subject oo NM -1- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION File#:2770,000 property, and for an order that Defendant Linda K. Ellingson pay Plaintiff's attorney fees and cost for having to bring this motion. b W BACKGROUND SF On or about June 30, 2006, pursuant to an agreement between Ww the parties, and using $108,000 in funds provided by Plaintiff for a down payment, Defendant purchased the Property. DR A true and correct copy of the Grant Deed recorded on or about June 30, 2006 is attached hereto and incorporated by S reference as Exhibit “1.” (Undisputed Fact (UF) # 1.) Defendant C28 was able to qualify for the Property’s purchase money loan by including in her income the monthly amount she expected to receive from o 10 Plaintiff for the property’s mortgage payment and monthly upkeep. Despite Plaintiff's recent 11 bankruptcy, which precluded her from serving as borrower on the purchase money loan or initially 12 holding joint title,the parties agreed they would equally share the financial responsibility associated 13 with the Property. 14 On or around January 2017, Defendant became unemployed and was unable to contribute her 15 one-half share of the Property’s mortgage and household expense payments. 16 On or about December 28, 2017, a Grant Deed granting to Plaintiff Staci Silva and Defendant 17 Linda K. Ellingson each an undivided '% interest in the real property located at 3975 Baltic Circle, 18 Rocklin, California 95677, was recorded with the County of Placer’s Office, as follows: 19 FOR A VALUABLE CONSIDERATION, receipt of which ishereby acknowledged, 20 Linda K. Ellingson, an unmarried woman 21 hereby GRANT(S) to 22 Linda K. Ellingson, an unmarried woman 23 and Staci Silva, a married woman, as her sole and separate property, all as joint tenants. 24 the following described real property in the City of Rocklin 25 County of Placer, State of California: 26 Lot 91, AS SHOWN ON THE MAP OF ANTELOPE OAKS UNIT NO. 2, TRACT NO. 27 461, FILED NOVEMBER 19, 1981, IN BOOK OF MAPS, PAGE 40, PLACER COUNTY RECORDS, AND AS MODIFIED BY CERTIFICATE OF CORRECTION, RECORDED 28 AUGUST 6, 1984 IN BOOK 2720, PAGE 650, PLACER COUNTY RECORDS. 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION File#:270.000 a ls OLD we OO bn 8 A true and correct copy of the Grant Deed recorded on or about December 28, 2017 is attached hereto and incorporated by reference as Exhibit “2.” (UF # 2.) bk On or about December 28, 2017, a Quitclaim Deed, granting to Staci Silva, a married woman as Ww her sole and separate property, an undivided '4 interest in the real property located at 3975 Baltic Circle, & Rocklin, California 95677, was recorded with the County of Placer’s Office, as follows: FOR A VALUABLE CONSIDERATION, receipt of which ishereby acknowledged, HN Kelly Ann Hoeppner (spouse of Staci Silva) 4S do(es) hereby REMISE, RELEASE, and FOREVER QUITCLAIM to co Staci Silva, amarried woman as her sole and separate property oO 10 the following real property in the City of Rocklin, County of Placer, State of California: 11 Lot 91, AS SHOWN ON THE MAP OF ANTELOPE OAKS UNIT NO. 2, TRACT NO. 12 461, FILED NOVEMBER 19, 1981, IN BOOK OF MAPS, PAGE 40, PLACER COUNTY 13 RECORDS, AND AS MODIFIED BY CERTIFICATE OF CORRECTION, RECORDED AUGUST 6, 1984 IN BOOK 2720, PAGE 650, PLACER COUNTY RECORDS. 14 A true and correct copy of the Quitclaim Deed recorded on or about December 28, 2017 is 15 attached hereto and incorporated by reference as Exhibit “3.” (UF # 3.) Simultaneous to this change in 16 17 title,the Property’s purchase money loan was refinanced with both parties serving as borrowers. A true 18 and correct copy of the Deed of Trust is attached hereto and incorporated by reference as Exhibit “4.” 19 (UF #4.) 20 In the time period following the refinance of the Property’s purchase money loan. Defendant has 21 continually refused to both obtain new employment or resume fullpayment of her one-half share of the a2 Property’s mortgage and household expenses has caused Plaintiff financial damage. 23 On or about April 12, 2019 a good faith Meet and Confer letter was sent to the Defendant 24 demanding that the Subject Property be partitioned by appraisal and that Plaintiff be allowed to purchase 25 Defendant’s interest in the Subject Property, subject to an accounting of the parties’ respective financial 26 contributions to the Subject Property’s acquisition and maintenance. A true and correct copy of the Meet 27 and Confer Letter dated April 12, 2019 is attached hereto and incorporated by reference as Exhibit “5.” 28 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION File#:2770.000 (UF #5.) Moreover, Defendant was informed that Plaintiff was seeking an amicable solution in lieu of costly litigation. we Because Defendant failed or refused to agree to the sale and distribution of the Subject Property, WW on May 15, 2019, Plaintiff was forced to file a summons and complaint for Partition by Appraisal and &- Accounting and has incurred attorney fees and costs. A true and correct copy of the Complaint is Ww attached hereto and incorporate by reference as Exhibit “6.” (UF #6.) This complaint for Partition and BO Accounting alleges in part: “...that each party recovers their fair share related to the Property with each SS party to then receive 2 of any remaining sale proceeds.” SF Oo LAW AND ARGUMENT & I. INTERLOCUTORY JUDGMENT; PARTITION BY SALE —& mes Cal. Code of Civ. Proc. section 437c, “Grounds for and effect of summary judgment; procedure HO on motion,” provides in pertinent part: WW (a)(1) Any party may move for summary judgment in any action or proceeding if itis F&F contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the wre general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without HR notice and upon good cause shown, may direct. mmm DT (aX(2) Notice of the motion and supporting papers shall be served on all other parties to Oo the action at least 75 days before the time appointed for hearing. However, if the notice is served by mail, the required 75-day period of notice shall be increased by five days if the CO place of address is within the State of California, 10 days ifthe place of address is outside ORD the State of California but within the United States, and 20 days if the place of address is © outside the United States, and ifthe notice isserved by facsimile transmission, —& OR Express Mail, or another method of delivery providing for overnight delivery, the required 75-day period of notice shall be increased by two court days. ORD NH (a)(3) The motion shall be heard no later than 30 days before the date of trial,unless the WW BD court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading. BD & BRD Ww (b)(1) The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. Bw H The supporting papers shall include a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the ~sj NM material facts stated shall be followed by a reference to the supporting evidence. The eo mM -4- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION File#;270.000 failure to comply with this requirement of a separate statement may in the court's = discretion constitute a sufficient ground for denying the motion. tw (2) Any opposition to the motion shall be served and filed not less than 14 days preceding WwW the noticed or continued date of hearing, unless the court for good cause orders otherwise. The opposition, where appropriate, shall consist of affidavits, declarations, admissions, & answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. HW HA (3) The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the DY opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that the opposing party Oo contends are disputed. Each material fact contended by the opposing party to be disputed Co shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court's discretion, for granting the motion. CUO ge UlUhwGhLULNGUlUlUre (4) Any reply to the opposition shall be served and filed by the moving party not less than five days preceding the noticed or continued date of hearing, unless the court for good i cause orders otherwise. (5) Evidentiary objections not made at the hearing shall be deemed waived. i OU (6) Except for subdivision (c) of Section 1005 relating to the i method of service of opposition and reply papers, Sections 1005 and 1013, extending the time within which a right may be exercised or an DR act may be done, do not apply to this section. eee HI (7) Any incorporation by reference of matter in the court's file shall set forth with specificity the exact matter to which reference isbeing made and shall not incorporate the Be entire file. OBO (c) The motion for summary judgment shall be granted if allthe papers submitted show ODO that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining whether the papers show that there is no KY triable issue as to any material fact the court shall consider all ON of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, NY OD and all inferences reasonably deducible from the evidence, except summary judgment may not be granted by the court based on inferences reasonably deducible from the YP OR evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact. RD FF UN (d) Supporting and opposing NR affidavits or declarations shall be made by any person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that NO DO the affiant is competent to testify to the matters stated in the affidavits or declarations. Any objections based on the failure to comply with the requirements of this subdivision BBD 4 shali be made at the hearing or shall be deemed waived. ao -5- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION File#:2770.000 (¢) Ifa party is otherwise entitled to a summary judgment pursuant to this section, summary judgment may not be denied on grounds of credibility or for want of cross- examination of witnesses furnishing affidavits or declarations in support of the summary judgment, except that summary judgment may be denied in the discretion of the court, Y where the only proof of a material fact offered in support of the summary judgment isan affidavit or declaration made by an individual who was the sole witness to that fact; or Se where a material fact is an individual 'sstate of mind, or lack thereof, and that fact is le sought to be established solely by the individual 'saffirmation thereof. DH (f)(1) A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or SS one or more issues of duty, ifthat party contends that the cause of action has no merit or that there is no affirmative defense thereto, 6&6 or that there is no merit to an affirmative defense as to any cause of action, or both, or that there isno merit to a claim for damages, oOo as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. Amotion for summary 10 adjudication shall be granted only ifit completely disposes of a cause of action, an 11 affirmative defense, a claim for damages, or an issue of duty. 12 Cal. Code of Civ. Proc. section 872.720. Interlocutory Judgment, provides in full: 13 (a) Ifthe 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 14 partition of the property and, unless it isto be later determined, the manner of 15 partition. 16 (b) Ifthe court determines that it isimpracticable or highly inconvenient to make a single interlocutory judgment that determines, in the first instance, the interests of all the 17 parties in the property, the court may firstascertain the interests of the original 18 concurrent or successive owners and thereupon make an interlocutory judgment as if such persons were the sole parties in interest and the only parties to the action. 19 Thereafter, the court may proceed in like manner as between the original concurrent or successive owners and the parties claiming under them or may allow the interests 20 to remain without further partition if the parties so desire. 21 An interlocutory judgment must be awarded under CCP §872.720, because Plaintiff Staci Silva 22 is ajoint owner with Defendant Linda K. Ellingson as matter of law due to that certain Grant Deed and 23 Quitclaim Deed, which was recorded on December 28, 2017. (UF #2 and # 3.) Plaintiff's % title 24 interest in the subject property was recorded on December 28, 2017. (UF #2 and # 3.) Moreover, 25 26 Defendant Linda K. Ellingson admitted in her Answer to the Complaint and in her Response to Request 27 for Admissions, Set One, that she holds a one-half interest in the subject property with Plaintiff. (UF # 28 7.) A true and correct copy of the Answer to the Complaint is attached as Exhibit “7,” A notice of -6- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION File#:2770.000 pendency of action was recorded on February 25, 2020. A true and correct copy of the recorded notice of pendency of action is attached as Exhibit “8.” (UF # 8.) No Ww Evidence Code Section 622. Facts recited in written instrument, provides: > The facts recited in a written instrument are conclusively presumed to be true as between the parties thereto, or their successors in interest; but this rule does not apply to the recital UE of a consideration. DH Defendant has a very high burden of proof should she try to contradict Plaintiff stitle interest SN and subsequent right to sale of the subject property. If an order of sale is not granted, then Plaintiff will SF suffer loss of value, and will continue to submit to Defendant’s unilateral resistance and delay with po 10 regards to the sale. Accordingly, this Court must grant summary adjudication and order a sale of 3975 11 Baltic Circle, Rocklin, California 95677. 12 Il. DIVISION OF PROCEEDS IN ACCORDANCE WITH INTEREST 13 Cal. Code of Civ. Proc. Section 872.810. Division in accordance with interests, provides: 14 15 The court shall order that the property be divided among the parties in accordance with their interests in the property as determined in the interlocutory judgment. 16 Cal. Code of Civ. Proc. Section 872.820. Sale of property division of proceeds, provides: 17 18 Notwithstanding Section 872.810, the court shall order that the property be sold and the proceeds be divided among the parties in accordance with their interests in the property 19 as determined in the interlocutory judgment in the following situations: 20 (a) The parties agree to such relief, by their pleadings or otherwise. 21 (b) The court determines that, under the circumstances, sale and division of the proceeds 22 would be more equitable than division of the property. For the purpose of making the determination, the court may appoint a referee and take into account his report. 23 Cal. Code of Civ. Proc. Section 872.830. Partial division and sale, provides: 24 If, in making a determination whether sale would be more equitable than division of the 25 property, the court finds that sale and division of proceeds for part of the property would 26 be more equitable than division of the whole property, the court may order that such part be sold and the remainder divided. 27 Cal. Code of Civ. Proc. Section 874.010. Inclusions, provides: 28 =Je MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION File#:2770.000 The costs of partition include: He (a) Reasonable attorney's fees incurred or paid by a party for the common benefit. WH (>) The fee and expenses of the referee. FF (c) The compensation provided by contract for services of a surveyor or other person employed by the referee in the action. we DB (d) The reasonable costs of a titlereport procured pursuant to Section 872.220 with interest thereon at the legal rate from the time of payment or, ifpaid before NHN commencement of the action, from the time of commencement of the action. 68 (e) Other disbursements or expenses determined by the court to have been incurred or paid for the common benefit. Oo Cal. Code of Civ. Proc. Section 874.040. Apportionment of costs, provides: ts @ —|&§ Except as otherwise provided in this article, the court shall apportion the costs of partition among the parties in proportion to their interests or make such other apportionment as NHN may be equitable. emt WH Defendant has refused to voluntarily sell the subject property; thus, Plaintiff has incurred FF needless attorney fees and costs. Accordingly, Defendant should have to cover those fees and take a HH mmm smaller interest in the proceeds at the time of distribution. KH SN Il. APPOINTMENT OF REFEREE TO SELL PROPERTY AND TO DISTRIBUTE OH PROCEEDS OF SALE mm CO Cal. Code of Civ. Proc. Section 873.010. Appointment; power and duty of court, provides: S&F ORD (a) The court shall appoint a referee to divide or sell the property as ordered by the court. BND §|§ (b) The court may: BD HN (1) Determine whether a referee's bond is necessary and fix the amount of the bond. BRD WH (2) Instruct the referee. Ft Bw ND (3) Fix the reasonable compensation for the services of the referee and provide for A payment of the referee's reasonable expenses. BA WN (4) Provide for the date of commencement of the lien of the referee allowed by law. 4) NM oo NM -8- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION File #:2770.000 (5) Require the filing of interim or final accounts of the referee, settle the accounts of the referee, and discharge the referee. OM (6) Remove the referee. Uw (7) Appoint a new referee. Oe Upon the granting of the interlocutory order of sale, the Court is requested to appoint as referee a wh DS qualified licensed real estate agent to act as referee to facilitate the marketing and sale of the subject “4 property. The referee can also prepare a report which can act as escrow instructions for the distribution oo of assets in accordance with each party’s 2 interest, along with the payment of attorney fees from Defendant Linda K. Ellingson’s share. Plaintiff hereby requests this court appoint Chad Phillips of 10 11 RE/MAX Gold to act as referee charged with the sale of the subject property located at 3975 Baltic 12 Circle, Rocklin, California 95677. He has consented to the appointment and is fully qualified to conduct 13 an open market transaction. His contact information is as follows. 14 15 Chad Phillips, Broker Associate RE/MAX Gold 16 2998 Douglas Blvd Suite 125 Roseville, CA 95661 17 (916) 390-1476 Real Estate License No. 01405825 18 19 Following the sale of the subject property, and the payment of escrow and referee fees and costs, 20 the proceeds from the sale shall remain in escrow pending an evidentiary hearing to determine the 21 appropriate apportionment of costs, attorney fees, and otherwise determine the equitable distribution of 22 23 proceeds. 24 CONCLUSION 25 Plaintiff owns a '% titleinterest in 3975 Baltic Circle, Rocklin, California 95677, and is entitled 26 to an interlocutory order of sale as a matter of law. Defendant cannot meet her burden to overcome the 27 titleinterest presented in the Grant Deed recorded on December 28, 2017. Accordingly, this Court is 28 -9. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION File#:2770.000 respectfully requested to grant summary adjudication and to make an order for the sale of 3975 Baltic = Circle, Rocklin, California 95677, for an order appointing a referee to sell the subject property, for an WH BW order distributing the proceeds of the sale in accordance with each parties interest, and for an order that & Defendant Linda K. Ellingson pay Plaintiff's attorney fees and costs for having to file this lawsuit. UW DA ~Q DATED: 02/2 re 2020 BPE LAW GROUP, PC. Cc LE ions aE Oo OD Robert J. Enos, Esq. Tanner N. Puryear, E KS Attorneys for Plaintiff mmm N WD SF TH DH SH Oe me DO CO OB S&§ OB NH OD YH OB F&F BD BD Uw BF DA nN BN oo me -10- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION File#:2770,000 EXHIBIT 1 DINGn RECORAmerica STEDy REQUECompan BY UNA Vi ALATA First Title PLACER ptoaty 8 ecorder AND WHEN RECORDED MAIL TO: a 2006-0070169 Linda K Ellingson Roct i-FIRST ge wi Pole ch ose? Friday: J an : ae-O0:SBS $2.08 @@:REC itl pd §607.00 "rT vpevenuove TitsLine forRecarder’s UseCay A.P.N.: 010-440-028-000 FileNo.: 3415-2407063 (CH) GRANT DEED The Undersigned Grantor(s) Declare(s): DOCUMENTARY TRANSFER TAX $594.00;CITYTRANSFERTAX $0.00; SURVEY MONUMENT FEE$ { * } computedon the consideration orfull value of property conveyed,OR [ J computedon the consideration orfull valueless value ofliens and/orencumbrances remaining attimeofsale, [ ] unincorporated area;( x] City ofRocklin,and FOR A VALUABLE CONSIDERATION, receipt ofwhich is hereby acknowledged, Micheal Roddy and Stephanie Roddy, husband and wife as joint tenants hereby GRANTS to Linda K Ellingson, an unmarried woman the following described property in the Cityof Rocklin, County of Placer, State of California: LOT 91, AS SHOWN ON THE “MAP OF ANTELOPE OAKS UNIT NO. 2,TRACT NO, 461", FILED NOVEMBER 19, 1981, IN BOOK N OF MAPS, PAGE 40, PLACER COUNTY RECORDS, AND AS MODIFIED BY CERTIFICATE OF CORRECTION, RECORDED AUGUST 6, 1984, IN BOOK 2720, PAGE 650, PLACER COUNTY RECORDS. Dated: __ 06/19/2006 » RA, “Micheal cde Roddy (CaN =X Stephanie Roddy MailTaxStatementsTo: SAME AS ABOVE \n A.P.N.: 010-440-028-000 Grant Deed - continued FileNo.:3415-2407063 , (CH) Date: 06/19/2006 STATE OF 7 Foes 1A ss COUNTY OF 55 IEGO i) on VU