Judge: Lynette Gridiron Winston, Case: 23PSCV03336, Date: 2024-11-20 Tentative Ruling

Case Number: 23PSCV03336    Hearing Date: November 20, 2024    Dept: 6

CASE NAME:  Lawrence Elmer Barkley, Jr. v. Judy Ann Drebert 

Hearing on Motion to Confirm Sale and Approve Referee’s Report 

TENTATIVE RULING 

The Court CONTINUES the hearing on the order to confirm sale and approve referee’s report, and orders Plaintiff to obtain from Defendant and file with the Court a notice of Defendant’s waiver of timely notice of sale if Defendant agrees with and consents to the sale. Plaintiff is further ordered to give notice of the hearing on this motion to the purchasers and file proof of service of same. The Court further ORDERS Plaintiff to provide a supplemental declaration setting forth the contractual or other arrangements or conditions as to agents' commissions. The Court will discuss the continued hearing date with the parties at the hearing. 

Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order. 

BACKGROUND 

This is a partition action. On October 27, 2023, plaintiff Lawrence Elmer Barkley, Jr. (Plaintiff) filed this action against defendant Judy Ann Drebert (Defendant) and Does 1 through 10, alleging one cause of action for partition. 

On October 8, 2024, the Court entered an interlocutory judgment directing that the subject property be sold by the referee. On October 21, 2024, Plaintiff applied ex parte for an order shortening time, to confirm the sale, and to approve the referee’s report. The hearing was continued to November 14, 2024. On November 5, 2024, Plaintiff filed the instant partition referee’s report and ex parte request for order. Defendant has not filed an opposition. 

LEGAL STANDARD 

(a) A purchaser, the referee, or any party may move the court to confirm or set aside the sale.

(b) The moving party shall give not less than 10 days' notice of motion to:

(1) The purchaser if the purchaser is not the moving party; and

(2) All other parties who have appeared in the action.

(Code Civ. Proc., § 873.720.)

(a) At the hearing, the court shall examine the report and witnesses in relation to the report.

(b) The court may confirm the sale notwithstanding a variance from the prescribed terms of sale if to do so will be beneficial to the parties and will not result in substantial prejudice to persons interested in the sale.

(c) The court may vacate the sale and direct that a new sale be made if it determines any of the following:

(1) The proceedings were unfair or notice of sale was not properly given. If there is no finding at the hearing of unfairness or improper notice, the sale may thereafter not be attacked on such grounds.

(2) The sale price is disproportionate to the value of the property.

(3) It appears that a new sale will yield a sum that exceeds the sale price by at least 10 percent on the first ten thousand dollars ($10,000) and 5 percent on the amount in excess thereof, determined after a reasonable allowance for the expenses of a new sale.”

(Code Civ. Proc., § 873.730.)

DISCUSSION 

            Plaintiff asks the Court to approve the sale of the subject property for $880,000. Plaintiff indicates that the court-appointed referee for the sale of the subject property, James Baiseri, procured multiple offers from buyers to purchase the subject property, and ultimately received the highest bid of $880,000. (Partition Referee’s Report, ¶¶ 18-21.) Mr. Baiseri’s report describes the manner in which the referee’s trust was executed by conducting the sale through standard commercially available methods, described the property, and described the property divided and the share allotted to each party. (Partition Referee’s Report, ¶¶ 3-10.) Mr. Baiseri’s report indicates that $880,000 is a fair and adequate price for the subject property, is proportionate to the value of the subject property, and that he does not believe a new sale will yield a sum that exceeds the sale by 10 percent on the first $10,000.00 and five percent on any amount in excess thereof. (Partition Referee’s Report, ¶ 22.) Mr. Baiseri’s report also indicates the opening and closing of public and private ways, roads, streets, and easements would be unnecessary. (Partition Referee’s Report, ¶ 12.) Mr. Baiseri’s report further indicates having given Defendant notice of the sale of the subject property. (Partition Referee’s Report, ¶ 17, Ex. 2.) 

            The Court finds the proposed sale price of $880,000 to be fair and reasonable, and that the report is largely adequate. However, the Court notes some issues. The Notice of Sale does not comply with Code of Civil Procedure section 873.640, which requires that the Notice of Sale be given in the same manner notice of sale of real property upon execution. (Code Civ. Proc., § 873.640.) The manner of notice of sale of real property upon execution states that the notice, “shall be in writing, shall state the date, time, and place of sale, shall describe the interest to be sold, and shall give a legal description of the real property and its street address or other common designation, if any.” (Id., § 701.540, subd. (a).) The Notice of Sale must also be served at least 20 days before the sale by mail and posting as provided in subdivisions (c), (d), and (f) of Code of Civil Procedure section 701.540. (Id., § 701.540, subd. (a).) 

The Notice of Sale attached to Mr. Baiseri’s report is just an email to Defendant discussing the initial proposed sale price and otherwise coordinating to facilitate the sale of the subject property. (Partition Referee’s Report, Ex. 2.) There is no indication of mailing or posting, nor does it state the date, time, and place of sale, or provide a legal description of the subject real property. (Code Civ. Proc., §§ 701.540, subd. (a), 873.640, subd. (a).) The Court notes that a formal Notice of Sale, with proof of service via mail on November 15, 2024, was given to Defendant after the sale had taken place. Mr. Baiseri also declares that Defendant signed the sales contract for the sale of the subject property to the buyers. If Defendant waives the notice of sale requirements, the Court will allow the belated notice of sale to Defendant. The Court further notes that Plaintiff has not set forth the contractual or other arrangements or conditions as to agents' commissions. (Code Civ. Proc., § 873.710, subd. (b)(6).) Finally, Plaintiff has not provided evidence that the purchaser was given at least 10 days’ notice of the motion. (Code Civ. Proc., § 873.720.) 

            The Court will CONTINUE the hearing on this matter to permit Plaintiff an opportunity to address the issues noted herein. 

CONCLUSION 

The Court CONTINUES the hearing on the order to confirm sale and approve referee’s report, and orders Plaintiff to obtain from Defendant and file with the Court a notice of Defendant’s waiver of timely notice of sale if Defendant agrees with and consents to the sale. Plaintiff is further ordered to give notice of the hearing on this motion to the purchasers and file proof of service of same. The Court further ORDERS Plaintiff to provide a supplemental declaration setting forth the contractual or other arrangements or conditions as to agents' commissions. The Court will discuss the continued hearing date with the parties at the hearing. 

Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.