Judge: Michael E. Whitaker, Case: 22SMCV02216, Date: 2024-08-29 Tentative Ruling

Case Number: 22SMCV02216    Hearing Date: August 29, 2024    Dept: 207

TENTATIVE RULING

BACKGROUND

On November 3, 2022, Plaintiffs Touraj Berookhim and Mahin Zargario Beroukhim, Trustees of the 2008 Touraj Berookhim and Mahin Zargari Beroukhim Revocable Trust dated October 3, 2008 (“Plaintiffs”) filed this partition action against Defendants Elenor Beroukhim Gabay (“Gabay”) and Mansoor Berookhim (“Mansoor”) regarding real property co-owned by the three siblings, Plaintiff Touraj and Defendants Gabay and Mansoor. 

In 2004, Molook Ghayoum (“Ghayoum”) transferred ownership of her condominium to her two sons, Plaintiff Touraj and Defendant Mansoor, and her daughter, Defendant Gabay.  The parties entered into an agreement on January 13, 2005, stipulating that Ghayoum would retain a lifetime right of occupancy and be responsible for all expenses associated with the property during her lifetime.  Apparently, despite that agreement, Touraj paid all expenses on the property during his mother’s occupancy.  The parties do not dispute that Touraj paid the expenses.

The parties dispute when Touraj provided notice to Mansoor and Gabay that he had been paying the property taxes and HOA expenses on the property; Touraj claims he provided regular notice to the other co-owners through verbal communications over the years.  Gabay disputes that any such communication occurred.  The parties do not dispute that on February 22, 2013, Touraj formally notified Gabay in writing of his ongoing payments and demanded reimbursement.  Gabay did not respond to Touraj’s notice. 

Ghayoum died in December 2020.  The property was sold on December 12, 2023 for $1,000,000, and the net proceeds of $926,789.35 are subject to distribution, pending resolution of Plaintiffs’ offset claims.

Referee Richardson C. Griswold (“Referee”) now moves for an order for final distribution of the sale proceeds of the home, with findings and recommendations.  The motion is unopposed.

ANALYSIS

“The court may, in all cases, order allowance, accounting, contribution, or other compensatory adjustment among the parties according to the principles of equity.”  (Code Civ. Proc., § 872.140.)

"Every partition action includes a final accounting according to the principles of equity for both charges and credits upon each cotenant’s interest. Credits include expenditures in excess of the cotenant’s fractional share for necessary repairs, improvements that enhance the value of the property, taxes, payments of principal and interest on mortgages, and other liens, insurance for the common benefit, and protection and preservation of title.”  (Wallace v. Daley (1990) 220 Cal.App.3d 1028, 1035-1036.)

"As far as practical, and to the extent it can be done without material injury to the rights of the other parties, the property shall be so divided as to allot to a party any portion that embraces improvements made by that party or that party’s predecessor in interest.  In such division and allotment, the value of such improvements shall be excluded."  (Code Civ. Proc., § 873.220.)

However, “[t]he general principle of law that the right to partition is absolute must be confined in its application to ordinary joint tenancies or tenancies in common, where the right to partition is left to result as an ordinary legal incident of such tenancy, and that it was never intended to interfere with contracts between the tenants modifying or limiting this otherwise incidental right, nor to render it incompetent for parties to make such contracts, either at the time of the creation of the tenancy or afterwards.”  (American Medical International, Inc. v. Feller (1976) 59 Cal.App.3d 1008, 1014-1015 [cleaned up].)

The only evidence of Touraj’s purported communications to his siblings about paying the property expenses before February 22, 2013, other than Touraj’s own testimony, is communication from Touraj’s daughter to Gabay in 2019, where Touraj’s daughter purportedly told Gabay, “I tell my father to let that condo get foreclosed on, stop paying for the HOAs, property taxes…etc…[b]ut he then says, where is grandma going to live?” 

Therefore, the Referee recommends construing all payments prior to the February 22, 2013 written notice as Touraj’s gifts to his mother, to prevent foreclosure on the property and to allow her to continue to live there, as it is not equitable to charge the co-owners for expenses of which they had no notice or opportunity to mitigate. 

From February 22, 2013 until Ghayoum’s death in December 2020, because the co-owners were on notice of the expense payments but did nothing to modify or mitigate Touraj’s payment of the property taxes and HOA fees, the Referee recommends pro-rating the expenses Touraj paid during that time among the three siblings.  The parties agree that the expenses should be prorated from the date of Ghayoum’s death in December 2020 onward.

Since February 22, 2013, Touraj has paid a total of $286,826.38, representing $88,949.85 in property taxes and approximately $197,876.53 in HOA fees.  The Referee recommends apportioning $95,608.79 to Gabay’s 1/3 share of these expenses plus interest in the amount of $35,396.76, an amount Gabay does not dispute, for a total of $131,005.55.  The Referee further recommends each party pay their own attorneys’ fees incurred.

CONCLUSION AND ORDER

Therefore, finding sufficient evidence and legal support in the record, the Court grants the Referee’s unopposed motion for an order apportioning $131,005.55 of Gabay’s share of the sale proceeds to Touraj as compensation for payments made toward the property since February 22, 2013.

Further, Plaintiffs shall lodge a proposed Order in conformity with the Court’s ruling on or before September 6, 2024 (the Court declines to issue the Order as proposed by the Referee), and based upon the Court’s ruling, the Court vacates the Status Conference re Offsets scheduled for August 29, 2024. 

Further, the Court sets an Order to Show Cause re Dismissal of the Action on October 14, 2024 at 8:30 A.M. in Department 207.  The Court will not require an appearance by counsel for the parties if a dismissal of the entire action is entered before October 14, 2024. 

Plaintiffs shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith.

DATED:  August 29, 2024                             ___________________________

                                                                  Michael E. Whitaker

                                                                  Judge of the Superior Court