Judge: Elaine W. Mandel, Case: 20SMCV00242, Date: 2023-11-08 Tentative Ruling

Case Number: 20SMCV00242    Hearing Date: November 8, 2023    Dept: P

Tentative Ruling

Bergen, et al. v. Richman, Case No. 20SMCV00242

Hearing Date November 8, 2023

Motion for Instructions and Request for Attorney’s Fees and Partition Attorney’s Fees (UNOPPOSED)

Bergen plaintiffs filed a partition action regarding a condominium co-owned by defendant Richman. The court entered an interlocutory judgment of partition, granting referee Howard Grobstein authority to sell the property, which was completed July 30, 2021, with buyers transferring $829,814.39 to the referee. On March 8, 2022 the court granted plaintiffs’ motions to deduct fees (including referee fees and attorney’s fees), costs of sale and lost rental income from defendant Richman’s share of the sale proceeds because Richman’s failure to vacate caused the fees and costs to be incurred.

Referee Grobstein is holding $196,096.83 in funds for Richman, representing 50% of the sale price, minus costs and fees as provided in in the 3/8/2022 order. Grobstein and plaintiffs attempted to deliver the check to Richman, both by mail and in person, but he has neither cashed the check nor accepted it.

The referee asks to deduct $2,206.70 in outstanding professional referee fees and expenses, $24,759 in attorney’s fees and $280.92 in expenses incurred by counsel from the funds currently held for Richman. He also requests instructions from the court as to how to proceed with the remaining amount, given Richman’s apparent refusal to accept his share. Plaintiffs filed a notice of non-opposition, and Richman has not responded to the motion.

The court’s March 8, 2022 order allows deduction of reasonable referee fees and costs as well as attorney’s fees from Richman’s share of the sale proceeds. The claimed fees and costs were incurred and are reasonable. See Thagard declaration ¶¶6-8, exhibits 1-3. The amounts identified in the declaration may be deducted. The referee made good-faith efforts to give defendant his share of the sale proceeds, but Richman has not accepted the funds nor cashed a sales check. Thagard declaration ¶¶9-13, exhibit A.

Under Cal. Code of Civ. Proc. §873.810, after a partition sale of property “the court shall order the proceeds of sale and any security therefor to be paid, transferred deposited in court . . . to or for the benefit of the persons in interest entitled thereto, as may be appropriate or as specifically provided in this article.” Given Richman’s apparent refusal to accept payment, a court deposit of his share is appropriate under §873.810. The referee will deposit the funds with the clerk of the court and provide notice to Richman of the fact of deposit, and that he may claim his funds from the court. 

GRANTED as set forth above. A status conference will be scheduled for the referee to confirm that the funds have been deposited, and then be discharged from further duties.