Judge Ronald F. Frank, Case YC072561 2022-12-08 Tentative Ruling

Judge: Ronald F. Frank, Case: YC072561, Date: 2022-12-08 Tentative Ruling

Case Number: YC072561 Hearing Date: December 8, 2022 Dept: 8

Tentative Ruling¿¿

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HEARING DATE: December 8, 2022¿¿

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CASE NUMBER: YC072561

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CASE NAME: Sharon Kunkel v. Carl Monfils, et al

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MOVING PARTY: Plaintiff, Sharon Kunkel

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RESPONDING PARTY: Defendant, Hugh Kunkel

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TRIAL DATE: None Set.¿

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MOTION:¿ Plaintiff’s Ex Parte Notice of Motion and Motion for an Order to (1) Disburse the Proceeds of the Sale Deposited with Court According to Interlocutory judgment; (2) Dismiss the Entire Action Memorandum of Points and Authorities

Tentative Rulings: (1) Plaintiffs’ Motions are DENIED. Court trial for parties to present evidence bearing on accounting to be scheduled promptly

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I. BACKGROUND¿¿¿

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On February 21, 2020, Judge Deidre Hill entered an Interlocutory Judgment. Pursuant to the Judgement, it was ordered that the subject property be sold, and sale proceeds be divided between the parties as per their respective shares i.e., 60% to Plaintiff and 40% to Defendant. Proceeds of the sale were to be kept in escrow until further order of the court. However, Escrow refused to hold the proceeds, and it was agreed between the parties that the court would hold the proceeds. After the sale of the property, the Court set this matter for an accounting pursuant to Code of Civil Procedure §872.140: “The Court may, in all cases, order allowance, accounting, contribution, or other compensatory adjustment among the parties according to the principals of equity.”

Plaintiff is now claiming that the judge required the parties to file any motion re: accounting, attorney fee, cost, rent and any other issues within 30 days of close of escrow. Plaintiff asserts that Defendant failed to provide such a motion. Plaintiff asserts that since no accounting motion was filed by Defendant within the 30 days, there is no issue left to be adjudicated by this court, and thus, the sale proceeds must be divided between the parties.

In opposition, Defendant argues that the Judgment does not say that the court requires a party to file an accounting. Instead, it states that any party “may” file a motion for an accounting, attorney fees, costs, rent and other issues. Defendant further asserts that this issue was raised by Plaintiff before Judge Deidre Hill at the October 4, 2022 Final Status Conference where Judge Hill made clear that her order did not express such intent and that a partition action always requires two parts: sale of the property and an accounting.

Defendant further argues that it is entitled to an accounting as a matter of right. Defendant argues that “[a] co-tenant who pays more than his or her share of the common expenses of the property necessary to preserve the common estate may recover the overpayment from the other co-tenant.” Willmon v. Koyer (1914) 168 Cal. 369, 372; Southern Adjustment Bureau, Inc. v. Nelson (1964) 230 Cal.App 2d 539.) Defendant further asserts that “[o]n a sale of the property pursuant to an action for partition, the cotenant is entitled to reimbursement for the entire amount advanced before the balance of the sale proceeds is divided between the cotenants. Alternatively, the other cotenant’s share of the expenses may be deducted from his or her share of the sale proceeds. (Higgins v. Eva (1928) 204 Cal. 231, 238; Willmon, 168 Cal. At 374-375.) Lastly, Defendant contends that Plaintiff waived the right to object to an accounting because this action is in equity, and as such, the doctrines of waiver and estoppel are applicable.

Defendant notes that defense counsel contacted Plaintiff to discuss resolution, confirming in a letter dated June 22, 2022 attached as Exhibit A. Defendant asserts that Plaintiff informed defense counsel that the case remained open because Plaintiff was seeking reimbursements/ contribution for rent and attorney’s fees. After this, Defendant asserts that it was “forced” to send written discovery and take the deposition of Plaintiff, where Plaintiff allegedly testified regarding the claims for rent and attorney’s fees. Defendant contends that the deposition reflects that Plaintiff erroneously believed that, because the parties owned the property 60/40, Defendant was only entitled to occupy 40% of the physical property and therefore Plaintiff could recover the fair market rental value of 60% of the property (Exhibit B.) Defendant also argues that Plaintiff learned that he could not recovery attorney’s fees for representing himself. (Trope v. Katz (1995) 11 Cal. 4th 274.) Defendant argues that it was only after Plaintiff learned his claims were not viable that he sought to dismiss the accounting.

Defendant has requested that even if this Court were to reject all arguments, that it should use its power, in equity, to grant relief from a failure to file a motion for accounting to allow an equitable distribution of proceeds.

RULING:

The Motion is denied. ¿¿It is not clear to the Court that escrow was ever “closed” since escrow refused to receive the sale proceeds or make any distribution pursuant to the escrow instructions. Even if escrow had closed, the conduct of the parties since entry of the interlocutory judgment demonstrates their intention to litigate the issues of an accounting either by motion, mediation, or trial. The Court finds it is in the interests of justice, and consistent with the statutory provision for an accounting, to set a court trial on the accounting issues expeditiously so the net sale proceeds can finally be distributed. The parties are to attend the hearing on December 8 with calendars in hand to discuss the setting of that trial.

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