Judge: Salvatore Sirna, Case: 23PSCV01437, Date: 2025-01-17 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, counsel are advised to check this website periodically to determine whether any changes or updates have been made to the tentative ruling. Counsel may submit on a tentative ruling by calling the clerk in Department G at (909) 802-1104 prior to 8:30 a.m. the morning of the hearing.

Case Number: 23PSCV01437    Hearing Date: January 17, 2025    Dept: G

Partition Referee Matthew L. Taylor’s Motion for Discharge and for Instructions and Orders Regarding Disposition of Remaining Money and Referee’s Fees

Respondent: Defendant Deutsche Bank National Trust Company

TENTATIVE RULING

Partition Referee Matthew L. Taylor’s Motion for Discharge and for Instructions and Orders Regarding Disposition of Remaining Money and Referee’s Fees is GRANTED IN PART. Partition costs are assessed against Plaintiff Kelli Scott and Defendant Dale Carr in the amount of $18,240.05 from Plaintiff Kelli Scott (66.7%) and $9,106.35 from Defendant Dale Carr (33.3%).

BACKGROUND

This is an action for partition of a piece of real estate at 19722 Cameron Avenue in Covina. Plaintiff Kelli Scott, a trustee of The Ronald Earl Wheeler Living Trust, UA dated March 12, 2021 (Wheeler Trust), alleges the Wheeler Trust holds an undivided 66.7% interest in the Covina property along with Defendant Dale Carr who allegedly holds a 33.3% interest in the Covina property and currently resides at the Covina property. Scott alleges Scott and Carr both hold their interests as tenants-in-common. Defendant Quality Loan Service Corporation (Quality Loan) serves as the current trustee for a July 24, 2006 deed of trust that was recorded against the Covina property on July 31. Defendant Deutsche Bank National Trust Company (Deutsche Bank) is the beneficiary of a mortgage secured by the 2006 deed of trust.

On May 11, 2023, Scott filed a complaint against Carr, Quality Loan, Deutsche Bank, all persons unknown claiming any interest in the real property, and Does 1-20, alleging the following causes of action: (1) partition by sale of real property and (2) ouster.

On September 6, 2023, Scott filed a motion for interlocutory judgment of partition and appointment of referee. On October 4, 2023, the court granted Scott’s motion and appointed Matthew M. Taylor as partition referee.

On September 19, 2024, Taylor filed a notice of completion of sale of real property by partition.

On December 11, 2024, Taylor filed the present motion. A hearing on the present motion is set for January 17, 2025.

REQUEST FOR JUDICIAL NOTICE

Deutsche Bank’s request for judicial notice of this court’s records is GRANTED.

ANALYSIS

Taylor moves the court for discharge and approval of referee’s fees as well as an order compelling Deutsche Bank to pay Taylor’s fees. While Deutsche Bank does not oppose Taylor’s discharge as referee, Deutsche Bank opposes the issuance of any order requiring them to pay Taylor’s referee fees. For the following reasons, the court GRANTS Taylor’s motion in part.

Here, Taylor requests a total award of $32,092.00 in referee fees. (Motion, p. 2:19-21.) Based upon a review of Taylor’s supporting declaration and exhibits, the court determines that Taylor’s requested fees are reasonable. (Taylor Decl., ¶ 4, Ex. 3.) While $4,745.60 remains in the referee’s account, Taylor requests the remaining $27,346.40 be satisfied by Deutsche Bank who received the proceeds from the sale of the Covina property.

Pursuant to Code of Civil Procedure section 873.820, “[t]he proceeds of sale for any property sold shall be applied in the following order:

“(a) Payment of the expenses of sale.

(b) Payment of the other costs of partition in whole or in part or to secure any cost of partition later allowed.

(c) Payment of any liens on the property in their order of priority except liens which under the terms of sale are to remain on the property.

(d) Distribution of the residue among the parties in proportion to their shares as determined by the court.” (Code Civ. Proc., § 873.820.)

In arguing Taylor is entitled to payment from Deutsche Bank, Taylor points to Code of Civil Procedure section 874.010, subdivision (b) which defines “costs of partition” to include the referee’s fees and expenses. Taylor also notes that payment of such fees has priority over Deutsche Bank’s payment as a lienholder.

Deutsche Bank notes in its opposition, however, this provision appears inapplicable here as the proceeds of the Covina property’s sale have already been distributed. Taylor does not provide any authority that authorizes the court to essentially undo a prior distribution of sale proceeds to remedy the referee’s failure to deduct the costs of partition as authorized by Code of Civil Procedure section 873.820.

Furthermore, in a stipulation filed September 29, 2023, between Scott and Deutsche Bank, the parties agreed that “any and all amounts secured by the Trust’s Note and Deed of Trust shall be paid in full from any sale proceeds.” (RJN, Ex. 1, ¶ 14.) Taylor did not address this stipulation in his motion.

Because the costs of partition were not deducted from the sale proceeds, the court finds the costs of partition must be assessed against the parties. Pursuant to Code of Civil Procedure section 874.040, “[e]xcept as otherwise provided in this article, 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.” Thus, the remaining $27,346.40 in referee fees is to be apportioned among Scott and Carr according to the ownership interests they had held in the Covina property. (RJN, Ex. 3, p. 3:9-12.)

Accordingly, the court GRANTS Taylor’s motion and calculates the apportionment of all remaining partition costs as $18,240.05 from Scott (66.7%) and $9,106.35 from Carr (33.3%).

CONCLUSION

Based on the foregoing, Taylor’s motion for discharge is GRANTED IN PART. Partition costs are assessed against Scott and Carr in the amount of $18,240.05 from Scott (66.7%) and $9,106.35 from Carr (33.3%).