Judge: Cynthia A Freeland, Case: 37-2022-00032748-CU-OR-NC, Date: 2023-10-20 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - October 19, 2023

10/20/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Other Real Property Motion Hearing (Civil) 37-2022-00032748-CU-OR-NC MARY ELLEN GROSS SUCCESSOR TRUSTEE OF THE ONDER FAMILY TRUST AGREEMENT DATED JANUARY 30 1989 VS KEITH M JORDAN TRUSTEE OF THE CAUSAL DOCUMENT/DATE FILED: Notice - Other, 09/11/2023

The court will hear the matter.

On July 14, 2023, the court granted Plaintiff Mary Ellen Gross, Successor Trustee of the Onder Family Trust Dated January 30, 1989 ('Plaintiff')'s motion for an order appointing a disinterested real estate appraiser to determine the fair market value of the real property located at 3424 Carlsbad Boulevard, Carlsbad, CA 92008 (the 'Property'). See ROA No. 51. As part of the briefing on the motion, the parties agreed to proceed under the framework set forth in the Partition of Real Property Act (Cal. Code Civ. P. §§ 874.311 et seq.) (the 'Act'). Toward that end, California Code of Civil Procedure ('CCP') § 874.316(a) provides that '[e]xcept as otherwise provided in subdivisions (b) and (c), the court shall determine the fair market value of the property by ordering an appraisal pursuant to subdivision (d).' Cal. Code Civ. P. § 874.316(a). CCP §§ 874.316(b) and (c) are inapplicable; however, CCP §§ 874.316(d)-(g) govern the procedure for determining the Property's fair market value. More specifically, CCP § 874.316(d) prescribes that: If the court orders an appraisal, the court shall appoint a disinterested real estate appraiser licensed in the State of California to determine the fair market value of the property assuming sole ownership of the fee simple state. On completion of the appraisal, the appraiser shall file a sworn or verified appraisal with the court.

Cal. Code Civ. P. § 874.316(d). Within 10 days after the appraiser files his or her appraisal with the court, the court must send notice to each party with a known address, stating the following: (1) The appraised fair market value of the property.

(2) That the appraisal is available at the court clerk's office.

(3) That a party may file with the court an objection to the appraisal not later than 30 days after the notice is sent, stating the grounds for the objection.

Cal. Code Civ. P. § 874.316(e). CCP § 874.316(f) then states that: If an appraisal is filed with the court pursuant to subdivision (d), the court shall conduct a hearing to determine the fair market value of the property not sooner than 30 days after a copy of the notice of the appraisal is sent to each party under subdivision (e), whether or not an objection to the appraisal is filed under paragraph (3) of subdivision (e). In addition to the court-ordered appraisal, the court may consider Calendar No.: Event ID:  TENTATIVE RULINGS

3020949 CASE NUMBER: CASE TITLE:  MARY ELLEN GROSS SUCCESSOR TRUSTEE OF THE ONDER FAMILY  37-2022-00032748-CU-OR-NC any other evidence of value offered by a party.

Cal. Code Civ. P. § 874.316(f). After the hearing on the fair market value of the property under CCP § 874.316(f), but before considering the merits of the partition action, the court must determine the property's fair market value and send notice of same to the parties. See Cal. Code Civ. P. § 874.316(g).

After considering the parties' respective evidence and arguments, the court, in accordance with CCP § 874.316(d), appointed James F. Aikens as real estate appraiser to determine the Property's fair market value. On September 11, 2023, Plaintiff filed and served a Notice of Filing Appraisal which attached a verified copy of Mr. Aikens' appraisal showing a fair market value of $3,100,000.00 as of August 15, 2023. See ROA Nos. 60, 61. On September 15, 2023, the court sent the parties the appropriate notice under CCP § 874.316(e) and set October 20, 2023 as the date that the court would determine the Property's fair market value under CCP § 874.316(f). See ROA No. 62. On October 11, 2023, Defendants filed their objections to Mr. Aikens' appraisal under CCP § 874.316(d)(3).

To the extent Defendants ask the court to: (1) order Plaintiff to prepare and submit an amended appraisal from Mr. Aikens, and (2) continue hearing on this matter, those requests are denied.

Defendants cite no authority in support of those requests and instead appeal to 'equity and fairness.' However, that is not what the Act allows. More specifically, the Act does not contain any provision that would permit or require the court to order an amended appraisal and continue the evidentiary hearing accordingly. Instead, the Act requires the court to, regardless of whether an objection to the appraisal is filed, conduct an evidentiary hearing to determine the Property's fair market value. As CCP § 874.316(f) makes clear, Mr. Aikens' appraisal is just one piece of evidence the court will consider in determining the Property's fair market value. At the hearing, the court may consider any other evidence of value that the parties may offer including, but not limited to, the information Defendants have submitted in support of their objections. See ROA Nos. 65, 66.

The court directs the parties to attend the hearing prepared to provide evidence and arguments regarding the Property's fair market value.

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