Judge: Stephen P. Pfahler, Case: 21CHCV00165, Date: 2022-08-11 Tentative Ruling

Case Number: 21CHCV00165    Hearing Date: August 11, 2022    Dept: F49

Dept. F-49

Date: 8-11-22

Case #21CHCV00165

Trial Date: N/A

FINAL REFEREE REPORT APPROVAL AND DISCHARGE

MOVING PARTY: Referee, Kevin Singer

RESPONDING PARTY: Unopposed/ Plaintiff, Jorge Seoane, et al.

RELIEF REQUESTED

Motion for Approval of Final Referee Report

SUMMARY OF ACTION

Plaintiff Jorge Seoane and Defendant Magdalena Bernabe jointly own a “manufactured home” (mobile home) located in Canyon Country. On August 13 2019, the parties executed a written agreement acknowledging their joint ownership of the home purchased in 2016, and an agreement for the equal division of sales proceeds. [Comp., Ex. 1.]

On October 15, 2019, Bernabe filed a complaint for partition (19CHCV00829), which was assigned to Department 49. [Comp., Ex. 2.] The action was dismissed on October 17, 2019.

Although the parties jointly executed a listing agreement, and Plaintiff moved out of the home, Plaintiff contends Defendant’s ex-husband subsequently moved into the home with Defendant, and the two continue to remain on the premises. Defendant now refuses to cooperate with the sale of the home.

On March 5, 2012, Plaintiff filed a complaint for Partition of Property. Defendant answered the complaint on April 8, 2021. On May 25, 2021, the court granted the motion for entry of an interlocutory judgment and appointment of a referee to oversee the sale of the home. The court entered the interlocutory judgment on June 9, 2021. On February 23, 2022, the court approved the stipulation for the sale of the property to third party Steve Andrew Steere for $141,000.

RULING: Granted.

Referee Kevin Singer moves for an order approving the final referee report, including the determination of final compensation and cost reimbursement, and distribution of funds, exonerating all bonds, terminating the appointment, and court retention of jurisdiction on referee related issues, if necessary. Notwithstanding the July 22, 2022 entry of the order submitted with the motion, the court reviews the terms.

As agreed upon by the parties, the mobile home sold for $141,000 rather than the projected $149,000. It’s not clearly listed in any summary how much was netted from the sale. Singer however presents a final available balance of $16,835, which was derived at least in part from the deduction of the $37,983 in referee fees, less a $5,842.47 courtesy fee discount, plus $1,263.13 expenses. Singer also presents a claim for $17,670 in attorney fees on behalf of Plaintiff’s counsel, which Singer determines as reasonable.

Singer recommends the court enter judgment against Defendant for $16,835. The judgment recognizes a direct split in attorney fees between the parties for the “common benefit” of the partition work, which, when split in half renders Defendant responsible for $8,835. [See Declaration Shane DiGiuseppe.] The additional $8,000 in damages against Defendant represents the loss of sales equity caused by the unreasonable rejection of a $149,000 all cash offer for the property, which led to the eventual sale at a reduced offer of $141,000. [Referee Decl.]

The court electronic filing system shows no opposition or reply at the time of the tentative ruling publication cutoff.

The receiver/referee acts as a ministerial officer and a temporary occupant and caretaker of the property for the Court. (Gill v. Rich (2005) 128 Cal. App. 4th 1254, 1267. (The receiver represents the Court as the medium through which the Court acts. (Id.) “The receiver’s functions and powers are controlled by statute, by the order appointing him, and by the Court’s subsequent orders.” (Cal-American Income Property Fund VII v. Brown Dev. Corp. (1982) 138 Cal. App. 3d 268, 273-274.)

Final Report and Account

California Rules of Court, rule 3.1184 requires a receiver to submit a final report and account to obtain a discharge. The final account and report may be presented by noticed motion or by stipulation of all parties. Singer submits a compilation of billing statements within the noticed motion.  [Singer Decl., Ex. 4.]

A review of the billing statements and declaration shows that the purpose of the referee has concluded because the property sold and the only business left is the disposition of the remaining funds. No party has submitted any opposition papers to show any problems with the receiver’s work. The court approved all prior reports, and the final report shows no new unusual items or expenses. Accordingly, the Court approves the final report and account.

Receiver’s Fees

Receivers are entitled to compensation for their own services and the services performed by their attorneys. (Venza v. Venza (1951) 101 Cal.App.2d 678, 680.) Generally, the costs of a receivership are paid from the property in the receivership estate. (Andrade v. Andrade (1932) 216 Cal. 108, 110.) However, Courts may impose the receiver costs on a party who sought the appointment of the receiver and on a party who benefited from the receivership. (Baldwin v. Baldwin (1947) 82 Cal.App.2d 851, 856.) Given the prior approved orders, documented expenses, courtesy discount, sale of the property and lack of objection, the court finds the receiver fees reasonable.

Exoneration of Bond and Discharge of Receiver

Given the approval of the final report and accounting, the Court also issues an order exonerating the bonds and discharging the receiver.

Deposit

The receiver requests the court allow the deposit of the remaining $8,417.50 funds into a trust account. “When it is admitted by the pleadings, or shown upon the examination of a party to the action, that he or she has in his or her possession, or under his or her control, any money or other thing capable of delivery, which, being the subject of litigation, is held by him or her as trustee for another party, or which belongs or which is due to another party or which should, under the circumstances of the case be held by the court pending final disposition of the action, the court may order the same, upon motion, to be deposited in court or delivered to such party, upon those conditions that may be just, subject to the further direction of the court.” (Code Civ. Proc., 572.)

Upon entry of judgment against Defendant, the court will order the release of the remaining funds to Plaintiff. Plaintiff to submit a judgment, which reflects the damages and allocation of attorney fees and damages.

Referee to provide notice.