Judge: John J. Kralik, Case: 23BBCV00689, Date: 2023-08-14 Tentative Ruling

Case Number: 23BBCV00689    Hearing Date: August 14, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Todd Eric Valcourt (“Plaintiff”) filed this action for partition by sale of the single-family residence located at 12629 Wixom St., North Hollywood, CA 91605, equally held as joint tenants by Plaintiff and Defendant Morag MacPherson (“Defendant”).  Plaintiff alleges that Defendant has refused to the voluntary sale of the property or to buy out Plaintiff’s hare of the interest. 

The complaint, filed March 28, 2023, alleges a single cause of action for partition by sale of the property.

B.     Relevant Background and Motion on Calendar

On May 24, 2023, the default of Defendant was entered. 

On May 30, 2023, Plaintiff filed a motion for interlocutory judgment of partition and appointment of referee.    

On June 30, 2023, the Court signed the Stipulation and Order Setting Aside Entry of Default, Continuing Hearing on Motion for Interlocutory Judgment of Partition and Appointment of Referee, and Choice of Realtor to Sell the Property.  The Stipulation and Order states that the parties each hold half (50/50) title interest in the property, the parties will enter into a listing agreement with Dan Stueve as the broker, the entry of default entered on May 24, 2023 is set aside, and the hearing on the motion is continued to August 11, 2023.  The Court then continued the motion to August 14, 2023.

On August 2, 2023, Defendant filed an opposition to the motion.

On August 7, 2023, Plaintiff filed a reply brief.

LEGAL STANDARD

            CCP § 872.710 states:

(a) At the trial, the court shall determine whether the plaintiff has the right to partition.

(b) Except as provided in Section 872.730, partition as to concurrent interests in the property shall be as of right unless barred by a valid waiver.

(c) Partition as to successive estates in the property shall be allowed if it is in the best interest of all the parties. The court shall consider whether the possessory interest has become unduly burdensome by reason of taxes or other charges, expense of ordinary or extraordinary repairs, character of the property and change in the character of the property since creation of the estates, circumstances under which the estates were created and change in the circumstances since creation of the estates, and all other factors that would be considered by a court of equity having in mind the intent of the creator of the successive estates and the interests and needs of the successive owners.

(CCP § 872.710.) 

CCP § 872.720 states:

(a) If the 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 partition of the property and, unless it is to be later determined, the manner of partition.

(b) If the court determines that it is impracticable or highly inconvenient to make a single interlocutory judgment that determines, in the first instance, the interests of all the parties in the property, the court may first ascertain the interests of the original 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. 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 to remain without further partition if the parties so desire.

(CCP § 872.720.) 

            CCP § 873.010 states:

(a) The court shall appoint a referee to divide or sell the property as ordered by the court.

(b) The court may:

(1) Determine whether a referee's bond is necessary and fix the amount of the bond.

(2) Instruct the referee.

(3) Fix the reasonable compensation for the services of the referee and provide for payment of the referee's reasonable expenses.

(4) Provide for the date of commencement of the lien of the referee allowed by law.

(5) Require the filing of interim or final accounts of the referee, settle the accounts of the referee, and discharge the referee.

(6) Remove the referee.

(7) Appoint a new referee.

(CCP § 873.010.)  CCP § 873.060 states: “The referee may perform any acts necessary to exercise the authority conferred by this title or by order of the court.”  CCP § 873.070 states: “The referee or any party may, on noticed motion, petition the court for instructions concerning the referee's duties under this title.”

DISCUSSION

            Plaintiff filed a motion for an interlocutory judgment to order the partition of the subject property on May 30, 2023, which was after the default of Defendant was entered.  After the motion was filed, the parties entered into a Stipulation stating that they agreed to vacate the default and they would enter a listing agreement with a mutually agreeable broker.

            In opposition, Defendant opposes the motion for interlocutory judgment or partition and appointment of referee, arguing that the parties entered the Stipulation on June 29, 2023, Defendant filed her answer on June 29, 2023, and the Court signed the Stipulation and Order on June 30, 2023.  Thus, Defendant argues that the sole remaining issue between the parties is the claimed offsets and that the parties are close to a resolution.  Defendant requests that the Court deny this motion without prejudice or continue the hearing for 90 days. 

            In reply, Plaintiff argues that the parties have largely agreed to sell the property, which leaves an accounting for offsets, which a referee can assist the Court.  Plaintiff seeks the appointment of Matthew Taylor as a referee to issue a report on offsets.  Plaintiff argues that Defendant continues to delay the action by providing no accounting for her claims of offsets.  Plaintiff argues that Defendant has not filed any substantive arguments opposing the interlocutory judgment of partition by sale.  Plaintiff requests that in the event the property is not sold within 120 days of the motion, that a referee take over to market and sell the property as well as determine offsets. 

            Here, the parties have stipulated to sell the property together.  The Court will enter an interlocutory judgment of partition in order to encourage the prompt sale of the property.  As stated in the parties’ stipulation, the parties each have a one-half interest in the property located at 12629 Wixom St., North Hollywood, CA 91605.  The Court will order the sale of the property and it appears that progress is being made towards that goal as the parties have retained Dan Stueve as their broker. 

            However, the Court declines to enter an order appointing a referee at this time.  Mr. Taylor provides his declaration stating that he is an attorney with practice in real estate, receiverships, and partition referee work.  (Taylor Decl., ¶¶1-13.)  He states that if he were appointed as partition referee to manage the private sale of the property, he would hire a real estate broker to market the property.  (Id., ¶8.)  He estimates that the total cost of the partition referee appointment for this case would be about $14,000, which is less than the commission to be paid to a realtor, and that he would prepare reports on offsets that may “add another few thousand to this bill” but may save the litigants time and money.  (Id., ¶9.)  He estimates that the fees could range from $10,000 to $15,000 and attaches his fee schedule.  (Id., ¶12, Ex. 13.)   At this time, the Court does not find that a receiver or referee is necessary for this action.  Mr. Taylor states that as a part of his role, he would hire a real estate broker to conduct the sale of the property; however, the parties have already hired Dan Stueve as their broker.  Plaintiff’s main concern appears to be with calculating and accounting for offsets by the parties.  Defendant should cooperate with Plaintiff’s request for accounting and, if necessary, the parties may seek a limited trial on the issues of damages based on the division of the proceeds from the sale of the property. 

            As such, the motion is granted in part and denied in part.  The motion is granted in part such that the Court will enter an interlocutory judgment of partition of the property.  The motion is denied in part such that the request for the appointment of a partition referee is denied without prejudice. If the parties are unable to cooperate with regard to accounting and offset, Plaintiff may bring another motion at a later time.  However, at this time, the appointment of a referee appears to be premature and would only increase the cost of litigation.

            As the parties are cooperating with the sale of the house, have agreed upon a broker, and have stipulated that they each have a one-half title interest in the property, it appears that the request in the motion is moot at this time.  As such, the Court denies the motion as requested, but will deny the motion without prejudice in the event that the sale of the property does not proceed in a timely manner or the parties fail to cooperate in this matter. 

CONCLUSION AND ORDER

            Plaintiff Todd Eric Valcourt’s motion for interlocutory judgment of partition and appointment of referee is granted in part and denied in part.  The motion is granted in part such that the Court will enter an interlocutory judgment of partition of the property.  Plaintiff is ordered to electronically lodge a copy of the proposed interlocutory judgment for the Court’s signing following the hearing on this matter.  The motion is denied in part such that the request for the appointment of a partition referee is denied without prejudice.   

Plaintiff shall provide notice of this order.