Judge: Malcolm Mackey, Case: 21STCV37359, Date: 2022-10-27 Tentative Ruling

Case Number: 21STCV37359    Hearing Date: October 27, 2022    Dept: 55

MORENO v. MORENO                                                      21STCV37359

Hearing Date:  10/27/22,  Dept. 55

#10:   PARTITION REFEREE BLAKE ALSBROOK’S FINAL REPORT AND ACCOUNT RE SALE OF REAL PROPERTY AND DISTRIBUTION OF PROCEEDS.

Notice:  Okay

No Opposition

MP:  Partition Referee, Blake Alsbrook.

RP:  

Summary

On 3/25/22, the Court filed an Interlocutory Judgment, appointing a Referee to sell the subject residential property.

On 8/5/22 the Court entered an Order Confirming Sale of Real Property.

The owners are Plaintiffs GILBERT A. MORENO AND BIANCA MARIE MORENO, individually and as Trustees of the GILBERT A. MORENO FAMILY TRUST U/A dated December 14, 2020, owning an undivided 50% interest;   and Defendant JOHNNA MORENO owning an undivided 50% interest.

MP Positions

The Referee requests an order approving the final report and account re sale of real property and distribution of proceeds, on grounds including the following:

·         The Referee completed the partition sale of the subject real property.

·         After payment of all costs of sale, including broker’s commissions, taxes, escrow fees, payment of the mortgage on the property, et cetera, net sale proceeds of $379,414.60 were disbursed to the Referee’s account by the escrow company.

·         There is currently $378,678.75 remaining for distribution.

·         The Interlocutory Judgment specified offsets to be paid.

·         Plaintiffs request that Defendant bear 50% of costs to sell the property-- $2,376.44.

·         After payment of the priority costs of administration in this matter, totaling $48,323.55, there will remain $330,355.20 for distribution to the parties in the sum of $165,177.60 to each.

·         In sum, the parties would get:

o   Plaintiffs: $228,675.72;

o   Defendant: $101,679.48.

Tentative Ruling

The motion is granted, as prayed.

Judges can order that real property be partitioned by sale by a referee.  E.g., CCP §§ 872.230,  873.710.  “Code of Civil Procedure section 874.04010 provides that ‘the court shall apportion the costs of partition among the parties in proportion to their interests or make such other apportionment as may be equitable.’”  Orien v. Lutz (2017) 16 Cal. App. 5th 957, 966.

A suggested form order is at West's Cal. Code Forms, Civ. Pro. § 873.820 Form 1 (7th ed.):

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF [NAME OF COUNTY]

[Names of plaintiffs],Plaintiff(s),Case No. [case number]v.[NATURE OF ORDER][Names of defendants],Defendant(s).

The court having heretofore on [date of interlocutory judgment], made and signed an Interlocutory Judgment of Partition and thereafter having determined that the property should be sold and [name of referee] having been duly appointed as Referee to conduct the sale and the property, having been duly noticed for sale was sold and the sale confirmed, and [name of referee] Referee having heretofore filed with the court [his/her] report of the sale and seeking payment of expenses and fees thereof from funds remaining,

Now, therefore, it is hereby ordered that the sum of $[dollar amount of sum] presently in the possession of [name of referee] Referee [OPTIONAL: (on deposit at [name of bank] in the name of the Referee as Trustee)] shall be disbursed as follows:

1. $[Text dollar amount of total expenses to referee] is hereby allowed to the Referee as expenses incurred in connection with the partition proceedings, including payment of $[dollar amount to service provider] to [surveyor/auctioneer/attorney].

2. The Referee is hereby awarded the sum of $[dollar amount of award to referee for services] as and for services rendered in such capacity.

3. $[Text dollar amount reserved] shall be reserved as and for closing expenses.

4. The balance remaining, of $[dollar amount of remaining balance] shall be divided and distributed by the Referee in the sum of $[dollar amount of sum 1] to [name of party 1]; $[dollar amount of sum 2] to [name of party 2] and $[dollar amount of sum 3] to [name of party 3].

It is hereby further ordered that the report of the Referee is approved and settled and that upon the payment of the sums above indicated and receipts therefor filed with the clerk of this court that [name of referee] be and [he/she] will be discharged from [his/her] position and duties as the Referee and [his/her] bond shall be exonerated.

Dated: [date of order]

[Name of judge]

[Title of judge]