Judge Elaine W. Mandel, Case 20SMCV00891 2022-09-29 Tentative Ruling

Judge: Elaine W. Mandel, Case: 20SMCV00891, Date: 2022-09-29 Tentative Ruling

Case Number: 20SMCV00891 Hearing Date: September 29, 2022 Dept: P

Tentative Ruling
Bayes v. Bernstein et al., Case No. 20SMCV00891
Hearing date September 29, 2022
(1) Cross-Defendant Point Dume Tennis’s Motion for Judgment on the Pleadings
(2) Referee Moldo’s Motion to Approve and Confirm Sale

On July 22, 2022, the Court granted Moldo’s ex parte application for instructions regarding sale of the property to the extent it sought permission to accept Nocher’s offer and denied the ex parte to the extent it asked for judgment on the pleadings. On August 12, 2022, PDTA filed this motion for judgment on the pleadings. No opposition has been filed. Also on August 12, 2022, Moldo filed a motion to approve and confirm sale of real property. No opposition has been filed.

Motion for Judgment on the Pleadings
Cross-Defendant PDTA moves for judgment on the pleadings as to Stockwell’s First Amended Cross-Complaint. On August 30, 2022, pursuant to Stockwell’s request, dismissal was entered as to Stockwell’s cross-complaint. The motion is MOOT.

Approval and Confirmation of Sale of the Real Property
Partition is a procedure for segregating and terminating common interests in the same parcel of property. Summers v. Superior Court (2018) 24 Cal.App.5th 138, 142. The court may appoint a referee for sale. Code Civ. Proc., § 873.020. The referee may perform acts necessary to exercise the authority conferred by order of the court. Code Civ. Proc., § 873.060. Upon making a sale, the referee shall report the sale to the court. Code Civ. Proc., § 873.710(a). The purchaser, referee, or any party may then move the court to confirm or set aside the sale. Code Civ. Proc., § 873.720(a). The court may confirm the sale notwithstanding a variance from the prescribed terms of the sale if to do so will be beneficial to the parties and will not result in substantial prejudice to persons interested in the sale. Code Civ. Proc., § 873.730(b). If at the hearing, a responsible bidder makes a written increased offer that exceeds the sale price by at least 10 percent on the first ten thousand dollars and 5 percent on the amount in excess thereof, the court in its discretion may (1) vacate the sale and direct that a new sale be made or (2) vacate the sale, accept the increased offer, and confirm the sale to the offeror. Code Civ. Proc., § 873.740(a). Upon confirmation of a sale, the court shall order the referee to execute a conveyance or other instrument of transfer, to collect the proceeds, take security, and perform other acts required to consummate the sale. Code Civ. Proc., § 873.750(a).

Referee Moldo seeks for an order approving and confirming the sale of the property to Nocher for $5,040,000, all cash. Moldo retained broker Brian Merrick of Malibu Colony Coldwell Banker. Moldo Decl., ¶ 4, 18. Moldo moved ex parte for instructions re sale of the Property on June 9, 2022, advising that he accepted Nocher’s offer. Modo Decl., ¶ 8. The Court granted the ex parte application to the extent it sought permission to accept the offer. Id., ¶ 15. Moldo served and filed the Notice of Sale of Real Property, which stated he would sell the Property to on September 29, 2022, with a purchase price of $5,040,000, subject to overbids and Court approval. Id., ¶ 16. The Notice was published in the Malibu Times. Id., ¶ 17; 9/8/22 Notice of Certification of Publication of Notice of Sale of Real Property.

Moldo complied with the statutory requirements, and the sale price of the Property is fair and reasonable. The Court intends to approve the sale unless qualifying overbid offers are made.

Moldo also requests orders: (1) approving a real estate broker commission of five percent, or $252,000, two and one-half percent to Coldwell Banker and two and one-half percent to the Buyer’s broker Compass; (2) approving the sale free and clear of any and all liens, claims, and interests that encumber the Property, including but not limited to the following, which shall attach to the net sale proceeds of the Property in the same priority: (a) a Grant Deed recorded December 29, 1976, as Instrument No. 1976-5405, (b) a Notice of Lis Pendens recorded July 9, 2020 as Instrument No. 2020-750034, and (c) a Notice of Pendency of Action recorded May 13, 2022 as Instrument No. 20220524396; (3) authorizing and instructing the Referee to execute any and all documents and/or instruments, including but not limited to escrow instructions and amendments and to do all other acts necessary to effect the sale and transfer of the Property; and (4) directing the Referee to deposit the net sale proceeds from the Property into a segregated, interest bearing account, subject to the provisions of the Court’s March 17, 2022 Order Instructing Referee Regarding Sale of the Property, the order approving and confirming the sale of the Property, and further order of this Court.

Code of Civil Procedure section 873.750 states “[u]pon confirmation of a sale, the court shall order the referee to execute a conveyance or other instrument of transfer, to collect the proceeds, take security, and perform other acts required to consummate the sale.” Code Civ. Proc., §873.750(a). Section 873.750 states “[t]he order may direct the referee concerning the distribution, deposit, or securing of sale deposits and sale proceeds.” Id., § 873.750(b). Code of Civil Procedure section 873.820 states proceeds shall be applied as follows: (1) sale expenses, (2) other costs of partition, (3) liens in their order of priority, and (4) distribution among the parties in proportion to their shares as determined by the court. Id., § 873.820.

The tentative is to GRANT.