Judge: Lynette Gridiron Winston, Case: 22PSCV00749, Date: 2024-08-06 Tentative Ruling
Case Number: 22PSCV00749 Hearing Date: August 6, 2024 Dept: 6
CASE NAME: Glenn Man Ching Fong, et al. v. Zhu Ling Peng
Motion of Partition Referee for Discharge and for Instructions Regarding Disposition of Sale Proceeds
TENTATIVE RULING
The Court GRANTS the motion of partition referee for discharge and for instructions regarding disposition of sale proceeds. The Court will sign the proposed order submitted with the motion.
Partition Referee is ordered to give notice of the Court’s ruling within five calendar days of this order.
BACKGROUND
This is a partition action. On July 21, 2022, plaintiffs Glenn Man Ching Fong, an individual and as Trustee of the G and D Fong Family Trust, and Diana Man Ling Fong, an individual and as Trustee of the G and D Fong Family Trust (collectively, Plaintiffs), filed this action against defendant Zhu Ling Peng (Defendant) and Does 1 to 10, alleging the sole cause of action for partition.
On July 1, 2024, Matthew L. Taylor (Partition Referee) moved to be discharged and for instructions regarding the disposition of sale proceeds. The motion is unopposed.
LEGAL STANDARD
“The referee or any party may, on noticed motion, petition the court for instructions concerning the referee's duties under this title.” (Code Civ. Proc., § 873.070.)
DISCUSSION
Summary of Motion
Partition Referee seeks to be discharged as Partition Referee, and seeks instructions regarding disposition of the remaining sales proceeds held by Partition Referee. Partition Referee indicates that he closed escrow on the sale of the subject property for $720,000.00 in December 2023, and that following payment by the escrow officer of customary sale costs, such as broker commissions, title insurance, and property taxes, Partition Referee received a total of $656,386.64, which includes the buyers’ initial deposit of $21,900.00 paid outside of escrow. Partition Referee then paid various administrative costs incurred by Partition Referee, such as court filing fees, bank fees, bond charges, publication charges, messenger fees, and property maintenance costs, including gardening, interior repairs, and utilities. Partition Referee is now currently holding $648,854.49 and seeks further instructions from the Court as to the distribution of these remaining proceeds.
Partition Referee seeks the Court’s approval of the distribution of the sale proceeds as follows:
- $330,970.98 to Plaintiffs; and
- $292,462.51 to Defendant.
Analysis
The Court finds Partition Referee’s motion to be well taken. Partition Referee’s fees of $25,421 appear reasonable in light of Partition Referee’s work over the past two years since this action was filed. First, Partition Referee’s rate of $300 an hour is reasonable for the relevant legal community. “The courts repeatedly have stated that the trial court is in the best position to value the services rendered by the attorneys in his or her courtroom [citation], and this includes the determination of the hourly rate that will be used in the lodestar calculus. [Citation.]” (569 E. Cnty. Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 436-437.) Second, Partition Referee provided a cost bill that supports the amount requested. (Taylor Decl., Ex. 3.) “[I]tems on a verified cost bill are prima facie evidence the costs, expenses and services listed were necessarily incurred…” (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.)
The Court next finds the proposed distribution of sale proceeds between the parties to be fair and reasonable. (Report and Recommendation of Partition Referee in Connection with Real Property Partition Sale Proceeds and Claims (Report), Final Calculations, 23:1-15.) Partition Referee’s report makes clear that only Plaintiffs submitted claims for reimbursements, the majority of which were properly supported by evidence. (Report, 10:1-11:20.) The report also makes clear that Plaintiffs’ request for award of attorney fees and costs is proper with respect to the attorney fees, but $5,000.00 of the costs sought were improper. (Report, 11:23-15:13.) Accordingly, Plaintiffs are to be reimbursed $43,849.91. (Report, 21:10-19.)
The Court further agrees with Partition Referee that there is insufficient evidence to support Plaintiffs’ argument that Defendant should bear responsibility for 100% of Partition Referee’s fees. (Report, 15:15-16:23.) But, the $6,646.56 attributable solely to Defendant, i.e., eviction related costs and fees, should be borne by Defendant. (Report, 16:24-17:23.) The Court also agrees with Partition Referee that $5,994.00 should be reallocated to Defendant as compensation for the Franchise Tax Board fees deducted from the gross sales proceeds, which fees were attributable solely to Plaintiffs. (Report, 18:1-26.)
Finally, the Court construes the lack of opposition from the parties as a tacit approval of the proposed distribution of sales proceeds here. (See Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410; C. Opposing the Motion—and Rebutting the Opposition, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-C, ¶ 9:105.10; see also Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215 [“Contentions are waived when a party fails to support them with reasoned argument and citations to authority. [Citation.]”)
Based on the foregoing, the Court GRANTS Partition Referee’s motion as follows:
2. Partition Referee is to receive $25,421.00 for his professional fees from the remaining sale proceeds;
3. Plaintiffs are to receive $330,970.98 from the remaining sale proceeds; and
4. Defendant is to receive $292,462.51 from the remaining sale proceeds.
The Court will sign the proposed order submitted with the motion.
CONCLUSION
The Court GRANTS the motion of partition referee for discharge and for instructions regarding disposition of sale proceeds. The Court will sign the proposed order submitted with the motion.
Partition Referee is ordered to give notice of the Court’s ruling within five calendar days of this order.