Preview
4/2020 11:36
FI
Superior
LED
Court of California
09/1
County of Placer
OCT 01 2020
Received
Jake Chatters
RECUtIve Officer& Clerk
By: O. Lucatuorto, Deputy
Electronically
SUPERIOR COURT OF CALIFORNIA, COUNTY OF PLACER
UNLIMITED CIVIL JURISDICTION
10 JENNIFER LUCERO, an individual, and ) Case No. S-CV-0045037
JAMES D. OLSON, an individual, )
11 ) [JOINT PROPOSED]
Plaintiffs, )
12 ) INTERLOCUTORY JUDGMENT FOR
Vi ) SALE OF REAL PROPERTY AND
) APPOINTMENT OF REFEREE
13 MATTHEW THOMAS DUDLEY, an )
individual; ALICE T. KWAN, an individual; _) (CCP §§ 872.720, 872.820)
14 OPES ADVISORS, INC., a California )
corporation, JPMORGAN CHASE BANK, _ )
15 NATIONAL ASSOCIATION; MORTGAGE )
ELECTRONIC REGISTRATION )
16 SYSTEMS, INC., a Delaware Corporation; _)
and DOES 1 through 50, and all persons )
unknown claiming any interest in the )
17
property, inclusive, )
18
)
Defendants. )
)
19 )
AND RELATED CROSS-ACTION. )
20 )
)
21 )
22
1
INTERLOCUTORY JUDGMENT FOR SALE OF REAL PROPERTY AND APPOINTMENT OF REFEREE
This action for partition was filed on June 15, 2020, by Plaintiffs JENNIFER LUCERO and
JAMES D. OLSON (collectively, “Lucero/Olson”). The action was filed requesting a decree of
partition by sale as to the following real property:
A fee estate in real property located in Placer County, California, commonly known as
2133 Serene Road, Soda Springs, California, and more particularly described as:
APN/Parcel ID(s): 069-420-05 1-000
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE
UNINCORPORATED AREA, COUNTY OF PLACER, STATE OF
CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
LOT 52, AS SHOWN ON THE “PLAT OF SERENE LAKES UNIT NO. 1,”
FILED MAY 31, 1967 IN BOOK I OF MAPS, PAGE 17, PLACER COUNTY
RECORDS.
10
Said fee estate in said property is hereafter referred to for purposes of this Judgment as “the
11
Property.”
12 On July 29, 2020, an Answer and Cross-Complaint were filed by Defendants
13 MATTHEW THOMAS DUDLEY and ALICE T. KWAN (collectively, “Dudley/Kwan’).
14 Through their Answer, Dudley/Kwan agreed with Lucero/Olson that a partition by sale of the
15 Property was appropriate. Dudley/Kwan also filed a Cross-Complaint against Lucero/Olson
16 alleging three claims for relief.
Lucero/Olson and Dudley/Kwan are collectively referred to for the purposes of this
17
Judgment as the “Owner Parties.”
18
Pursuant to the Stipulation for Entry of Interlocutory Judgment for Sale of Real Property
19
and Appointment of Referee, IT IS ORDERED, ADJUDGED, AND DECREED:
20
L Lucero/Olson own an undivided fifty percent interest (50%) as community
21
property with a right of survivorship in the fee title to the Property and as tenants in common
22
with Dudley/Kwan.
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INTERLOCUTORY JUDGMENT FOR SALE OF REAL PROPERTY AND APPOINTMENT OF REFEREE
a Dudley/Kwan own an undivided fifty percent interest (50%) as community
property with right of survivorship in the fee titleto the Property and as tenants in common with
Lucero/Olson.
3, The liens and encumbrances on the Property appearing of record or otherwise
known to the Owner Parties which may be materially affected by this action are as follows:
a. A first Deed of Trust (the “Mortgage Lien”) in the original sum of
$608,000, recorded on October 19, 2018, as Document No. 2018-0075866-00 in the Official
Records of Placer County, California. Defendant MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC. (“MERS”), or its successors and assigns, is a nominal
defendant in this action claiming an interest in the Property in the capacity as a nominee
10
beneficiary of the first Deed of Trust. Defendant JEPMORGAN CHASE BANK, NATIONAL
11
ASSOCIATION (“Chase”) services the note secured by the Mortgage Lien. As of August 31,
12 2020, the principal amount remaining due on the loan secured by the Mortgage Lien was
13 $588,379.49.
14 4. The Owner Parties agree to the appointment of a referee , sale of the Property and
15 division of the proceeds in accordance with their respective interests as set forth in this
16 Interlocutory Judgment.
5. Pursuant to Code of Civil Procedure § 873.010, the Court hereby appoints Kevin
17
Singer, Referee, with full authority to manage and partition by sale the Property.
18
6. The Referee shall immediately, prior to performing any duties, execute and filea
19
Referee’s oath of office and file the undertaking or bond required by Code of Civil Procedure §
20
873.010(b)(1) in the amount of $10,000. The Referee shall immediately disclose to the Court and
21
all Owner Parties any financial relationship between the Referee and any person or company
22
hired to assist him with the performance of his duties as set forth herein.
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INTERLOCUTORY JUDGMENT FOR SALE OF REAL PROPERTY AND APPOINTMENT OF REFEREE
7. The Referee may immediately take control of the Property, together with all
related documents, books, records, papers and accounts of the Owner Parties relating to the
Property (including the Property Bank Account, defined in paragraph 21 of this Order), and shall
manage the Property until such time as it issold, or further order of this Court.
8. The Referee in consultation with the listing agent shall immediately arrange for
and advance the cost of an appraisal and home inspection with appropriate person(s) or entities
not having any relationship or affiliation with the Owners Parties involved in this case. The
appraisal report and home inspection costs shall be paid for by the Owner Parties in proportion
to their respective ownership interests. If the listing agent is not willing to advance the cost of a
home inspection, the Referee may require the Owner Parties to deposit their proportional share
10
of these costs into the Property Bank Account.
11
9. The Referee is authorized and directed to employ Cliff Busby, Dickson Realty
12 Truckee, Inc., 11836 Donner Pass Road, Truckee, California, 96161, to listthe Property for
13 private sale as the Realtor. The Referee shall, in conjunction with Mr. Busby, determine the offer
14 price for listing the Property on the market, the length of time the Property will be listed for sale
15 and timeframes for listing and offer deadlines after the Property is listed on the MLS, and any
16 other logistics necessary for an efficient sale process. The Referee shall communicate his
decisions with the Owner Parties, so all parties are aware of the structure, process, and timeframes
17
applicable to the sale.
18
10. | Once the Referee and Mr. Busby have determined the offer price for listing the
19
Property on the market and any other necessary terms, Mr. Busby shall circulate a Residential
20
Listing Agreement. The Owner Parties are ordered to execute the Residential Listing Agreement
21
circulated by Mr. Busby. If the Residential Listing Agreement is not executed within three (3)
22
days of circulation, the Referee is authorized and directed to execute the Residential Listing
4
INTERLOCUTORY JUDGMENT FOR SALE OF REAL PROPERTY AND APPOINTMENT OF REFEREE
Agreement.
11. The Referee shall operate, manage, control and conduct the Property and incur
expenses necessary in such operation, management, control, and conduct in the ordinary and
usual course of business, and shall do all things and incur the risks and obligations ordinarily
incurred by owners, managers, and operators of similar properties, and no such risks or
obligations so incurred shall be the personal risk or obligation of the Referee, but shall be a risk
or obligation of the Property.
12. The Referee shall have the authority to (i) control the schedule of the occupancy
at the Property; (ii)enter the Property upon providing reasonable notice to any occupant; and (iii)
evict any occupant of the Property in order to facilitate the sale of the Property. Upon application
10
and showing of good cause, including the refusal or failure of any occupant of the Property to
11
cooperate with the Referee, a Writ of Possession for the Property shall be issued in favor of the
12
Referee. Occupancy by the Owner Parties shall require prior written approval from the Referee.
13 When occupying the Property, the Owner Parties shall provide access to the Property at alltimes
14 for potential purchasers to view the Property while it isfor sale.
15 13. The Referee is authorized, but not required, to advance funds (“Advance”’) for
16 reasonably necessary expenses of the Property, including, but not limited to, mortgage
17 obligations, property taxes, utility bills, insurance premiums, and maintenance and operation
expenses (“Property Expenses”). Said Advance will be reimbursed out of the proceeds of the
18
sale.
19
14. The Referee isauthorized to place the Property for sale on the market, retain any
20
marketing analysis or advertisers, and undertake any and all other duties associated with selling
21
the Property, including executing the necessary documents for consummation of asale, with such
22
sale being subject to overbid and Court approval on proper notice. The Referee shall be
5
INTERLOCUTORY JUDGMENT FOR SALE OF REAL PROPERTY AND APPOINTMENT OF REFEREE
authorized to increase or reduce the listing price for the Property as he determines in order to
generate interest in the Property. The Property shall be sold on the best terms and price.
15. The Referee shall thereafter sellthe Property in the form and manner approved by
the Court, in accordance with Code of Civil Procedure § 873.510 et seq., and shall seek Court
confirmation of the sale. Notice of sale shall be given in the manner required for notice of sale
of like properties on execution and shall be given to the persons described in Code of Civil
Procedure § 873.640. In all other respects, notice of and procedure for sale shall be as provided
in Code of Civil Procedure §§ 873.600-873.690.
16. To receive the highest bid for the sale of the Property, the Referee is hereby
authorized to offer the Property for sale vacant at closing, by taking all actions necessary to
10
deliver the Property clear of alloccupants currently occupying the Property, including requesting
11
a Writ of Possession from this Court to remove any occupants from the Property.
12
17. On confirmation of the sale of the Property by this Court and the payment of the
13 purchase price thereof, the Referee is hereby authorized and directed to execute and deliver a
14 deed of the real property sold to the purchaser thereof.
15 18. All reasonable expenses incurred in connection with the hiring and retention of
16 authorized personnel and counsel shall be expenses of the Property and shall be paid from the
17 proceeds of the sale of the Property.
19. The Referee is authorized to hire, employ, retain, and terminate consultants,
18
property managers, brokers, professionals and any other personnel or employees, which the
19
Referee deems necessary to assist him in his duties. Subject to paragraph 9 above, the Referee is
20
authorized to execute, modify, and extend listing and brokerage agreements as necessary for the
21
management, listing, and sale of the Property.
22
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INTERLOCUTORY JUDGMENT FOR SALE OF REAL PROPERTY AND APPOINTMENT OF REFEREE
20. | The Court hereby approves the Referee’s hourly rates of $275 per hour for
services as referee, $250 an hour for his Senior Project Managers and $85 to $150 an hour for
Accounting and Administrative Staff. In addition, the Referee shall be reimbursed for all
expenses incurred by the Referee. The Referee, his consultants, agents, employees, and
professionals may be paid upon closing of the sale. To be paid on such basis, the Referee must
file a monthly Referee’s Report with his billing statements with the Court and serve same on all
Owner Parties. Ten (10) days after the Referee’s Report has been filed and served, the Referee
may pay his monthly invoice. Pursuant to California Rules of Court Rule 3.1183, objections to
each of the Referee’s billing statements, if any, must be made within ten (10) days of notice of
the statement. Ifan objection, which shall be made on a line item basis with a statement of the
10
reason for such objection, is timely filed and served, the specific items objected to in such
11
Referee’s Report shall not be paid absent further order of the Court.
12 al. The Owner Parties hold a joint checking account ending in 3222 at JPMorgan
13 Chase, N.A., which isused for the payment of Property Expenses (the “Property Bank Account”).
14 The Owner Parties will provide the Referee with exclusive signatory authority for the Property
15 Bank Account to avoid the time and expense necessary for the Referee to establish a new
16 checking account. Nothwithstanding the foregoing, the Referee, in his discretion, is authorized
to establish a separate checking account at any bank he deems appropriate for the deposit of
17
monies collected or received and the payment of Property Expenses.
18
22. The Referee shall use future monies deposited into the Property Bank Account to
19
pay only those bills which are reasonable and necessary for the operation of the Property,
20
including, but not limited to, mortgage obligations, property taxes, utility bills, insurance
21
premiums, and maintenance and operation expenses relating to the Property. The Referee shall
22
obtain Court approval prior to making any payment other than those ordinarily and necessarily
7
INTERLOCUTORY JUDGMENT FOR SALE OF REAL PROPERTY AND APPOINTMENT OF REFEREE
incurred inthe operation of the Property. The Owner Parties will timely pay their respective share
of the September 2020 mortgage obligation.
23. | The Owner Parties are ordered to deliver to the Referee all sums required to pay
Property Expenses. The Referee may estimate anticipated Property Expenses for the following
thirty (30) days and require the Owner Parties to each deliver to the Referee fifty percent (50%)
of such estimated sum in advance of paying the Property Expenses. For any future amounts owed,
the Owner Parties must respectively provide their share of any such obligations to the Referee
within four (4) business days of any request made by the Referee. The Referee may make any
request directly to the Owner Parties and/or the Owner Parties’ respective counsel. Requests
made solely to counsel shall be deemed sufficient notice for the Owner Parties to deposit funds
10
directly into the Property Bank Account. The Referee shall notify the Court and take any
11
appropriate action ifeither of the Owner Parties does not submit their proportional share of any
12
monetary obligation related to the Property consistent with this paragraph.
13 24. The Referee shall prepare on a monthly basis, beginning thirty (30) days after his
14 appointment and for so long as the Property shall remain in his possession or care, reports setting
iS forth all receipts and disbursements, cash flow, changes in the assets in his charge, claims against
16 the assets in his charge, and other relevant operational issues that have occurred during the
17 preceding month. The Referee is directed to file such reports with the clerk of this Court. The
Referee shall serve a copy of this report on the Attorneys and Owner Parties to this action.
18
25. The Referee shall have no responsibility for filing federal and/or state income tax
Ly
returns or federal or state payroll tax returns and shall not be responsible for paying any unpaid
20
federal and state payroll taxes and/or expenses of the Owner Parties. The responsibility for such
21
filings and payments lies exclusively with the Owner Parties and their agents, employees, and
22
representatives.
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INTERLOCUTORY JUDGMENT FOR SALE OF REAL PROPERTY AND APPOINTMENT OF REFEREE
26. Subject to further order of this Court, the Referee may institute and prosecute all
suits as may be reasonably necessary in the Referee’s judgment to protect the Property, and to
defend all such suits and actions as may be instituted against the Referee.
Zt The Referee shall maintain adequate insurance for the Property to the same extent
and in the same manner as itheretofore has been insured, or as in the judgment of Referee may
seem fit and proper, and to cause all presently existing policies to be amended by adding the
Referee as an additional insured within twenty (20) days of the entry of this Order. The Owner
Parties have notified the Referee that the insurance on the Property will lapse on October 18,
2020, and that the present insurance carrier has declined to extend the policy for another period
because “the Property no longer meets brush requirements.” The Referee is authorized to procure
10
the appropriate insurance policy for the Property or to take such action necessary to meet the
11
“requirements” to renew the existing insurance policy and allpremiums or other related expenses
12
shall be paid for by the Owners in proportion to their respective ownership interests within four
1 (4)business days of request by Referee. If there is inadequate insurance, or insufficient funds in
14 the Property Bank Account to procure adequate insurance, the Referee is directed to immediately
15 take the appropriate action to remedy the deficiency and notify the Court regarding such
16 deficiency. Prior to notice to the Referee that the Property is uninsured or underinsured, Referee
17 shall not be personally responsible for any claims arising thereunder.
28. The Referee and any party that has appeared in this action may from time to time,
18
petition this Court for instructions in pursuance of this Order and any further orders this Court
19
may hereafter make.
20
oe. No individual or entity may sue the Referee without firstobtaining the permission
21
of this Court.
22
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INTERLOCUTORY JUDGMENT FOR SALE OF REAL PROPERTY AND APPOINTMENT OF REFEREE
30. Not later than sixty (60) days after the Referee’s duties hereunder terminate, the
Referee shall fileand serve a motion for approval of the Referee’s final report and account and
exoneration of the Referee’s bond. The Referee shall give notice of such motion to all persons or
entities of whom the Referee is aware who have potential claims against the Property. The motion
to approve the final report and account, and for discharge of the Referee shall contain a
declaration or declarations (i) stating what was done during the period of the Referee’s
appointment; (ii)certifying the accuracy of the final accounting; (iii)stating the basis for the
termination of the Referee’s appointment (such as sale of the Property); and (iv) stating the basis
for an order for the distribution of any surplus or payment of any deficit. In addition, the motion
shall contain a summary of accounting for the Property, which shall include (i)the totalrevenues
10
received; (ii)the total expenditures identified and enumerated by major categories; (iii)the net
11
amount of any surplus or deficit; and (iv) evidence of necessary supporting facts.
12
31. The Referee shall keep the proceeds of the sale in his trust account. If the Owner
13 Parties cannot stipulate to the distribution of proceeds, the Referee shall file his recommended
14 distribution of proceeds on a regularly noticed hearing and serve on all parties to this lawsuit.
15 32. | The Owner Parties shall fully cooperate with the Referee including completing a
16 Statement of Information and Real Estate Transfer Documents. Should the Owner Parties be
17 unable to fully complete any documents necessary for closing of the sale of the Property, the
Referee shall consider all information from the Owner Parties and may complete any such
18
documentation upon information received from the Owner Parties. In accordance with paragraph
19
35 below, the Owner Parties shall complete and execute all documents the Referee determines
20
are necessary and/or proper to effectuate sale of the Property.
21
33. Subject to any subsequent Court order, the proceeds from the sale of the Property
22
are anticipated to be applied, after confirmation of the sale, as follows:
10
INTERLOCUTORY JUDGMENT FOR SALE OF REAL PROPERTY AND APPOINTMENT OF REFEREE
a. To pay the expenses of sale, including the allowable fees and expenses of
the Referee and the Referee’s professionals;
b. To fully satisfy the Mortgage Lien, if not previously paid from escrow in
connection with the sale of the Property, and to pay any other known lienholders;
c The residue of proceeds of the sale of the Property after the payments and
deposits identified above shall be held in the Referee’s trust account pending the entry of a final
judgment herein, as security to reimburse the Owner Parties for allowable attorneys’ fees, costs,
adjustments and amounts found to be due as between any of the Owner Parties by way of
accounting, contribution, or other equitable charges, including but not limited to any mortgage
payment(s) (including associated interest or other fees/costs) made by any Owner Party, or any
10
other claims raised by any Owner Party, exceeding their respective fifty percent (50%)
11
obligation. After any subsequent motion practice or hearing required by the Court, the Court’s
12
final order for distribution shall govern the allocation of residue proceeds of the sale among the
13 Owner Parties.
14 34. The Referee shall comply with any agreement in writing with regard to the sale
LD of the Property presented to the Referee by the Owner Parties, provided, however, that the
16 Referee may petition the Court to approve a stipulated written agreement between the Owner
17 Parties before the Referee shall be required to act in accordance with it.
35. | The Owner Parties shall cooperate with the Referee and shall provide all
18
information and documents, and execute, notarize and deliver all documents, make such
19
endorsements, and do such acts as necessary or convenient to effectuate the Referee’s duties and
20
the sale of the Property.
21
///
22
///
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INTERLOCUTORY JUDGMENT FOR SALE OF REAL PROPERTY AND APPOINTMENT OF REFEREE
36. The Court reserves jurisdiction to make such further orders as it deems necessary
and proper to effectuate the sale of the Property and the distribution of the sale proceeds,
including, any claims of accounting, contribution, or other equitable charges between the Owner
Parties.
IT IS SO ORDERED.
Ne
Dated: L QAP
Hon/Michael W. Jones /
Judge of the Placer Coyhty Superior Court
APPROVED AS TO FORM:
10
1]
12
Ett. 25 —
Ethan J. Bipdberg—
Porter Simon, PC
13 Attorneys for Defendants MATTHEW
THOMAS DUDLEY and ALICE T. KWAN
14
15
16
f
Kenneth S.
f
Katzoft
kf
Katzoff & Riggs LLP
17 Attorneys for Plaintiffs JENNIFER
LUCERO and JAMES D. OLSON
18
19
Kevin Singer, ty
20
21
22
12
INTERLOCUTORY JUDGMENT FOR SALE OF REAL PROPERTY AND APPOINTMENT OF REFEREE
Preview
4/2020 11:36 FI Superior LED Court of California 09/1 County of Placer OCT 01 2020 Received Jake Chatters RECUtIve Officer& Clerk By: O. Lucatuorto, Deputy Electronically SUPERIOR COURT OF CALIFORNIA, COUNTY OF PLACER UNLIMITED CIVIL JURISDICTION 10 JENNIFER LUCERO, an individual, and ) Case No. S-CV-0045037 JAMES D. OLSON, an individual, ) 11 ) [JOINT PROPOSED] Plaintiffs, ) 12 ) INTERLOCUTORY JUDGMENT FOR Vi ) SALE OF REAL PROPERTY AND ) APPOINTMENT OF REFEREE 13 MATTHEW THOMAS DUDLEY, an ) individual; ALICE T. KWAN, an individual; _) (CCP §§ 872.720, 872.820) 14 OPES ADVISORS, INC., a California ) corporation, JPMORGAN CHASE BANK, _ ) 15 NATIONAL ASSOCIATION; MORTGAGE ) ELECTRONIC REGISTRATION ) 16 SYSTEMS, INC., a Delaware Corporation; _) and DOES 1 through 50, and all persons ) unknown claiming any interest in the ) 17 property, inclusive, ) 18 ) Defendants. ) ) 19 ) AND RELATED CROSS-ACTION. ) 20 ) ) 21 ) 22 1 INTERLOCUTORY JUDGMENT FOR SALE OF REAL PROPERTY AND APPOINTMENT OF REFEREE This action for partition was filed on June 15, 2020, by Plaintiffs JENNIFER LUCERO and JAMES D. OLSON (collectively, “Lucero/Olson”). The action was filed requesting a decree of partition by sale as to the following real property: A fee estate in real property located in Placer County, California, commonly known as 2133 Serene Road, Soda Springs, California, and more particularly described as: APN/Parcel ID(s): 069-420-05 1-000 THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE UNINCORPORATED AREA, COUNTY OF PLACER, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS: LOT 52, AS SHOWN ON THE “PLAT OF SERENE LAKES UNIT NO. 1,” FILED MAY 31, 1967 IN BOOK I OF MAPS, PAGE 17, PLACER COUNTY RECORDS. 10 Said fee estate in said property is hereafter referred to for purposes of this Judgment as “the 11 Property.” 12 On July 29, 2020, an Answer and Cross-Complaint were filed by Defendants 13 MATTHEW THOMAS DUDLEY and ALICE T. KWAN (collectively, “Dudley/Kwan’). 14 Through their Answer, Dudley/Kwan agreed with Lucero/Olson that a partition by sale of the 15 Property was appropriate. Dudley/Kwan also filed a Cross-Complaint against Lucero/Olson 16 alleging three claims for relief. Lucero/Olson and Dudley/Kwan are collectively referred to for the purposes of this 17 Judgment as the “Owner Parties.” 18 Pursuant to the Stipulation for Entry of Interlocutory Judgment for Sale of Real Property 19 and Appointment of Referee, IT IS ORDERED, ADJUDGED, AND DECREED: 20 L Lucero/Olson own an undivided fifty percent interest (50%) as community 21 property with a right of survivorship in the fee title to the Property and as tenants in common 22 with Dudley/Kwan. 2 INTERLOCUTORY JUDGMENT FOR SALE OF REAL PROPERTY AND APPOINTMENT OF REFEREE a Dudley/Kwan own an undivided fifty percent interest (50%) as community property with right of survivorship in the fee titleto the Property and as tenants in common with Lucero/Olson. 3, The liens and encumbrances on the Property appearing of record or otherwise known to the Owner Parties which may be materially affected by this action are as follows: a. A first Deed of Trust (the “Mortgage Lien”) in the original sum of $608,000, recorded on October 19, 2018, as Document No. 2018-0075866-00 in the Official Records of Placer County, California. Defendant MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (“MERS”), or its successors and assigns, is a nominal defendant in this action claiming an interest in the Property in the capacity as a nominee 10 beneficiary of the first Deed of Trust. Defendant JEPMORGAN CHASE BANK, NATIONAL 11 ASSOCIATION (“Chase”) services the note secured by the Mortgage Lien. As of August 31, 12 2020, the principal amount remaining due on the loan secured by the Mortgage Lien was 13 $588,379.49. 14 4. The Owner Parties agree to the appointment of a referee , sale of the Property and 15 division of the proceeds in accordance with their respective interests as set forth in this 16 Interlocutory Judgment. 5. Pursuant to Code of Civil Procedure § 873.010, the Court hereby appoints Kevin 17 Singer, Referee, with full authority to manage and partition by sale the Property. 18 6. The Referee shall immediately, prior to performing any duties, execute and filea 19 Referee’s oath of office and file the undertaking or bond required by Code of Civil Procedure § 20 873.010(b)(1) in the amount of $10,000. The Referee shall immediately disclose to the Court and 21 all Owner Parties any financial relationship between the Referee and any person or company 22 hired to assist him with the performance of his duties as set forth herein. 3 INTERLOCUTORY JUDGMENT FOR SALE OF REAL PROPERTY AND APPOINTMENT OF REFEREE 7. The Referee may immediately take control of the Property, together with all related documents, books, records, papers and accounts of the Owner Parties relating to the Property (including the Property Bank Account, defined in paragraph 21 of this Order), and shall manage the Property until such time as it issold, or further order of this Court. 8. The Referee in consultation with the listing agent shall immediately arrange for and advance the cost of an appraisal and home inspection with appropriate person(s) or entities not having any relationship or affiliation with the Owners Parties involved in this case. The appraisal report and home inspection costs shall be paid for by the Owner Parties in proportion to their respective ownership interests. If the listing agent is not willing to advance the cost of a home inspection, the Referee may require the Owner Parties to deposit their proportional share 10 of these costs into the Property Bank Account. 11 9. The Referee is authorized and directed to employ Cliff Busby, Dickson Realty 12 Truckee, Inc., 11836 Donner Pass Road, Truckee, California, 96161, to listthe Property for 13 private sale as the Realtor. The Referee shall, in conjunction with Mr. Busby, determine the offer 14 price for listing the Property on the market, the length of time the Property will be listed for sale 15 and timeframes for listing and offer deadlines after the Property is listed on the MLS, and any 16 other logistics necessary for an efficient sale process. The Referee shall communicate his decisions with the Owner Parties, so all parties are aware of the structure, process, and timeframes 17 applicable to the sale. 18 10. | Once the Referee and Mr. Busby have determined the offer price for listing the 19 Property on the market and any other necessary terms, Mr. Busby shall circulate a Residential 20 Listing Agreement. The Owner Parties are ordered to execute the Residential Listing Agreement 21 circulated by Mr. Busby. If the Residential Listing Agreement is not executed within three (3) 22 days of circulation, the Referee is authorized and directed to execute the Residential Listing 4 INTERLOCUTORY JUDGMENT FOR SALE OF REAL PROPERTY AND APPOINTMENT OF REFEREE Agreement. 11. The Referee shall operate, manage, control and conduct the Property and incur expenses necessary in such operation, management, control, and conduct in the ordinary and usual course of business, and shall do all things and incur the risks and obligations ordinarily incurred by owners, managers, and operators of similar properties, and no such risks or obligations so incurred shall be the personal risk or obligation of the Referee, but shall be a risk or obligation of the Property. 12. The Referee shall have the authority to (i) control the schedule of the occupancy at the Property; (ii)enter the Property upon providing reasonable notice to any occupant; and (iii) evict any occupant of the Property in order to facilitate the sale of the Property. Upon application 10 and showing of good cause, including the refusal or failure of any occupant of the Property to 11 cooperate with the Referee, a Writ of Possession for the Property shall be issued in favor of the 12 Referee. Occupancy by the Owner Parties shall require prior written approval from the Referee. 13 When occupying the Property, the Owner Parties shall provide access to the Property at alltimes 14 for potential purchasers to view the Property while it isfor sale. 15 13. The Referee is authorized, but not required, to advance funds (“Advance”’) for 16 reasonably necessary expenses of the Property, including, but not limited to, mortgage 17 obligations, property taxes, utility bills, insurance premiums, and maintenance and operation expenses (“Property Expenses”). Said Advance will be reimbursed out of the proceeds of the 18 sale. 19 14. The Referee isauthorized to place the Property for sale on the market, retain any 20 marketing analysis or advertisers, and undertake any and all other duties associated with selling 21 the Property, including executing the necessary documents for consummation of asale, with such 22 sale being subject to overbid and Court approval on proper notice. The Referee shall be 5 INTERLOCUTORY JUDGMENT FOR SALE OF REAL PROPERTY AND APPOINTMENT OF REFEREE authorized to increase or reduce the listing price for the Property as he determines in order to generate interest in the Property. The Property shall be sold on the best terms and price. 15. The Referee shall thereafter sellthe Property in the form and manner approved by the Court, in accordance with Code of Civil Procedure § 873.510 et seq., and shall seek Court confirmation of the sale. Notice of sale shall be given in the manner required for notice of sale of like properties on execution and shall be given to the persons described in Code of Civil Procedure § 873.640. In all other respects, notice of and procedure for sale shall be as provided in Code of Civil Procedure §§ 873.600-873.690. 16. To receive the highest bid for the sale of the Property, the Referee is hereby authorized to offer the Property for sale vacant at closing, by taking all actions necessary to 10 deliver the Property clear of alloccupants currently occupying the Property, including requesting 11 a Writ of Possession from this Court to remove any occupants from the Property. 12 17. On confirmation of the sale of the Property by this Court and the payment of the 13 purchase price thereof, the Referee is hereby authorized and directed to execute and deliver a 14 deed of the real property sold to the purchaser thereof. 15 18. All reasonable expenses incurred in connection with the hiring and retention of 16 authorized personnel and counsel shall be expenses of the Property and shall be paid from the 17 proceeds of the sale of the Property. 19. The Referee is authorized to hire, employ, retain, and terminate consultants, 18 property managers, brokers, professionals and any other personnel or employees, which the 19 Referee deems necessary to assist him in his duties. Subject to paragraph 9 above, the Referee is 20 authorized to execute, modify, and extend listing and brokerage agreements as necessary for the 21 management, listing, and sale of the Property. 22 6 INTERLOCUTORY JUDGMENT FOR SALE OF REAL PROPERTY AND APPOINTMENT OF REFEREE 20. | The Court hereby approves the Referee’s hourly rates of $275 per hour for services as referee, $250 an hour for his Senior Project Managers and $85 to $150 an hour for Accounting and Administrative Staff. In addition, the Referee shall be reimbursed for all expenses incurred by the Referee. The Referee, his consultants, agents, employees, and professionals may be paid upon closing of the sale. To be paid on such basis, the Referee must file a monthly Referee’s Report with his billing statements with the Court and serve same on all Owner Parties. Ten (10) days after the Referee’s Report has been filed and served, the Referee may pay his monthly invoice. Pursuant to California Rules of Court Rule 3.1183, objections to each of the Referee’s billing statements, if any, must be made within ten (10) days of notice of the statement. Ifan objection, which shall be made on a line item basis with a statement of the 10 reason for such objection, is timely filed and served, the specific items objected to in such 11 Referee’s Report shall not be paid absent further order of the Court. 12 al. The Owner Parties hold a joint checking account ending in 3222 at JPMorgan 13 Chase, N.A., which isused for the payment of Property Expenses (the “Property Bank Account”). 14 The Owner Parties will provide the Referee with exclusive signatory authority for the Property 15 Bank Account to avoid the time and expense necessary for the Referee to establish a new 16 checking account. Nothwithstanding the foregoing, the Referee, in his discretion, is authorized to establish a separate checking account at any bank he deems appropriate for the deposit of 17 monies collected or received and the payment of Property Expenses. 18 22. The Referee shall use future monies deposited into the Property Bank Account to 19 pay only those bills which are reasonable and necessary for the operation of the Property, 20 including, but not limited to, mortgage obligations, property taxes, utility bills, insurance 21 premiums, and maintenance and operation expenses relating to the Property. The Referee shall 22 obtain Court approval prior to making any payment other than those ordinarily and necessarily 7 INTERLOCUTORY JUDGMENT FOR SALE OF REAL PROPERTY AND APPOINTMENT OF REFEREE incurred inthe operation of the Property. The Owner Parties will timely pay their respective share of the September 2020 mortgage obligation. 23. | The Owner Parties are ordered to deliver to the Referee all sums required to pay Property Expenses. The Referee may estimate anticipated Property Expenses for the following thirty (30) days and require the Owner Parties to each deliver to the Referee fifty percent (50%) of such estimated sum in advance of paying the Property Expenses. For any future amounts owed, the Owner Parties must respectively provide their share of any such obligations to the Referee within four (4) business days of any request made by the Referee. The Referee may make any request directly to the Owner Parties and/or the Owner Parties’ respective counsel. Requests made solely to counsel shall be deemed sufficient notice for the Owner Parties to deposit funds 10 directly into the Property Bank Account. The Referee shall notify the Court and take any 11 appropriate action ifeither of the Owner Parties does not submit their proportional share of any 12 monetary obligation related to the Property consistent with this paragraph. 13 24. The Referee shall prepare on a monthly basis, beginning thirty (30) days after his 14 appointment and for so long as the Property shall remain in his possession or care, reports setting iS forth all receipts and disbursements, cash flow, changes in the assets in his charge, claims against 16 the assets in his charge, and other relevant operational issues that have occurred during the 17 preceding month. The Referee is directed to file such reports with the clerk of this Court. The Referee shall serve a copy of this report on the Attorneys and Owner Parties to this action. 18 25. The Referee shall have no responsibility for filing federal and/or state income tax Ly returns or federal or state payroll tax returns and shall not be responsible for paying any unpaid 20 federal and state payroll taxes and/or expenses of the Owner Parties. The responsibility for such 21 filings and payments lies exclusively with the Owner Parties and their agents, employees, and 22 representatives. 8 INTERLOCUTORY JUDGMENT FOR SALE OF REAL PROPERTY AND APPOINTMENT OF REFEREE 26. Subject to further order of this Court, the Referee may institute and prosecute all suits as may be reasonably necessary in the Referee’s judgment to protect the Property, and to defend all such suits and actions as may be instituted against the Referee. Zt The Referee shall maintain adequate insurance for the Property to the same extent and in the same manner as itheretofore has been insured, or as in the judgment of Referee may seem fit and proper, and to cause all presently existing policies to be amended by adding the Referee as an additional insured within twenty (20) days of the entry of this Order. The Owner Parties have notified the Referee that the insurance on the Property will lapse on October 18, 2020, and that the present insurance carrier has declined to extend the policy for another period because “the Property no longer meets brush requirements.” The Referee is authorized to procure 10 the appropriate insurance policy for the Property or to take such action necessary to meet the 11 “requirements” to renew the existing insurance policy and allpremiums or other related expenses 12 shall be paid for by the Owners in proportion to their respective ownership interests within four 1 (4)business days of request by Referee. If there is inadequate insurance, or insufficient funds in 14 the Property Bank Account to procure adequate insurance, the Referee is directed to immediately 15 take the appropriate action to remedy the deficiency and notify the Court regarding such 16 deficiency. Prior to notice to the Referee that the Property is uninsured or underinsured, Referee 17 shall not be personally responsible for any claims arising thereunder. 28. The Referee and any party that has appeared in this action may from time to time, 18 petition this Court for instructions in pursuance of this Order and any further orders this Court 19 may hereafter make. 20 oe. No individual or entity may sue the Referee without firstobtaining the permission 21 of this Court. 22 9 INTERLOCUTORY JUDGMENT FOR SALE OF REAL PROPERTY AND APPOINTMENT OF REFEREE 30. Not later than sixty (60) days after the Referee’s duties hereunder terminate, the Referee shall fileand serve a motion for approval of the Referee’s final report and account and exoneration of the Referee’s bond. The Referee shall give notice of such motion to all persons or entities of whom the Referee is aware who have potential claims against the Property. The motion to approve the final report and account, and for discharge of the Referee shall contain a declaration or declarations (i) stating what was done during the period of the Referee’s appointment; (ii)certifying the accuracy of the final accounting; (iii)stating the basis for the termination of the Referee’s appointment (such as sale of the Property); and (iv) stating the basis for an order for the distribution of any surplus or payment of any deficit. In addition, the motion shall contain a summary of accounting for the Property, which shall include (i)the totalrevenues 10 received; (ii)the total expenditures identified and enumerated by major categories; (iii)the net 11 amount of any surplus or deficit; and (iv) evidence of necessary supporting facts. 12 31. The Referee shall keep the proceeds of the sale in his trust account. If the Owner 13 Parties cannot stipulate to the distribution of proceeds, the Referee shall file his recommended 14 distribution of proceeds on a regularly noticed hearing and serve on all parties to this lawsuit. 15 32. | The Owner Parties shall fully cooperate with the Referee including completing a 16 Statement of Information and Real Estate Transfer Documents. Should the Owner Parties be 17 unable to fully complete any documents necessary for closing of the sale of the Property, the Referee shall consider all information from the Owner Parties and may complete any such 18 documentation upon information received from the Owner Parties. In accordance with paragraph 19 35 below, the Owner Parties shall complete and execute all documents the Referee determines 20 are necessary and/or proper to effectuate sale of the Property. 21 33. Subject to any subsequent Court order, the proceeds from the sale of the Property 22 are anticipated to be applied, after confirmation of the sale, as follows: 10 INTERLOCUTORY JUDGMENT FOR SALE OF REAL PROPERTY AND APPOINTMENT OF REFEREE a. To pay the expenses of sale, including the allowable fees and expenses of the Referee and the Referee’s professionals; b. To fully satisfy the Mortgage Lien, if not previously paid from escrow in connection with the sale of the Property, and to pay any other known lienholders; c The residue of proceeds of the sale of the Property after the payments and deposits identified above shall be held in the Referee’s trust account pending the entry of a final judgment herein, as security to reimburse the Owner Parties for allowable attorneys’ fees, costs, adjustments and amounts found to be due as between any of the Owner Parties by way of accounting, contribution, or other equitable charges, including but not limited to any mortgage payment(s) (including associated interest or other fees/costs) made by any Owner Party, or any 10 other claims raised by any Owner Party, exceeding their respective fifty percent (50%) 11 obligation. After any subsequent motion practice or hearing required by the Court, the Court’s 12 final order for distribution shall govern the allocation of residue proceeds of the sale among the 13 Owner Parties. 14 34. The Referee shall comply with any agreement in writing with regard to the sale LD of the Property presented to the Referee by the Owner Parties, provided, however, that the 16 Referee may petition the Court to approve a stipulated written agreement between the Owner 17 Parties before the Referee shall be required to act in accordance with it. 35. | The Owner Parties shall cooperate with the Referee and shall provide all 18 information and documents, and execute, notarize and deliver all documents, make such 19 endorsements, and do such acts as necessary or convenient to effectuate the Referee’s duties and 20 the sale of the Property. 21 /// 22 /// 11 INTERLOCUTORY JUDGMENT FOR SALE OF REAL PROPERTY AND APPOINTMENT OF REFEREE 36. The Court reserves jurisdiction to make such further orders as it deems necessary and proper to effectuate the sale of the Property and the distribution of the sale proceeds, including, any claims of accounting, contribution, or other equitable charges between the Owner Parties. IT IS SO ORDERED. Ne Dated: L QAP Hon/Michael W. Jones / Judge of the Placer Coyhty Superior Court APPROVED AS TO FORM: 10 1] 12 Ett. 25 — Ethan J. Bipdberg— Porter Simon, PC 13 Attorneys for Defendants MATTHEW THOMAS DUDLEY and ALICE T. KWAN 14 15 16 f Kenneth S. f Katzoft kf Katzoff & Riggs LLP 17 Attorneys for Plaintiffs JENNIFER LUCERO and JAMES D. OLSON 18 19 Kevin Singer, ty 20 21 22 12 INTERLOCUTORY JUDGMENT FOR SALE OF REAL PROPERTY AND APPOINTMENT OF REFEREE