Judge: Stephen P. Pfahler, Case: 22CHCV00032, Date: 2022-08-11 Tentative Ruling

Case Number: 22CHCV00032    Hearing Date: August 11, 2022    Dept: F49

Dept. F-49

Date: 8-11-22

Case #22CHCV00032

Trial Date: 5-15-23




MOVING PARTY: Plaintiff, Carl Fout

RESPONDING PARTY: Defendants, Alexandria Wise, et al.



Motion for Summary Judgment on the Complaint for Partition of Real Property



On January 13, 2022, Plaintiff Carl Fout, Trustee of the Carl Fout 2018 Trust dated May 8, 2018 filed a complaint for Partition of Real Property for 30227 Hasley Canyon Road, Castaic. On March 23, 2022, the court overruled the demurrer of Defendants Alexandria Wise, Mitchel Wise, and Preston Wise to the complaint. Defendants answered the complaint on April 11, 2022, and filed a cross-complaint against Carl Fout for Partition, Accounting, and Constructive Trust for the same property.


RULING: Continued.

Request for Judicial Notice: Granted.

Evidentiary Objections: Deferred.

Plaintiff Carl Fout, Trustee of the Carl Fout 2018 Trust dated May 8, 2018, brings a motion for summary judgment on the complaint for partition. According to Fout, the property is currently equally held by the Carl Fout trust, and Valerie Fout Trust (Valerie Fout passed away) trustee, Alexandria Wise. Plaintiff represents that Plaintiffs Mitchel and Preston Wise[1] are beneficiaries of the Valerie Foust trust. Because the property and single family home cannot be divided under current zoning laws, Fout seeks partition by sale and authorization to purchase the Valerie Fout Trust owned half.


Defendants Alexandria Wise, Mitchel Wise, and Preston Wise in opposition requests the court deny the motion in order to allow Defendants time to conduct further discovery. Defendants request additional time to gather further information on the ability to actually partition the property rather than entry of judgment for a forced sale. Defendants represent communications with “Jodie S” an employee with Los Angeles County “Subdivision Unit,” that directly contradict the arguments in the motion and supported by “Rick,” an employee of the “Los Angeles County planning office.” Defendants intend to take the deposition of “Rick,” and/or conduct additional discovery into the viability of a physical partition.


Plaintiff in reply challenges the necessity of any further discovery. Plaintiff represents that any decision to partition the property is not within the discretion of a government employee, but the court. Plaintiff also objects to the admission of any evidence regarding said partition viability.


“If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.” (Code Civ. Proc., 437c, subd. (h).)


The court acknowledges the argument of Plaintiff regarding the existing zoning laws, and the size of the property. The court however declines to rule on the potential validity and legal impact regarding a sale versus actual physical partition until Defendants are given an opportunity to complete the sought after discovery. The court accepts Defendants’ representation that the information is essential to the opposition, that defendants have a plan for obtaining the information, and that defendants have started the discovery process. [Declaration of Steffanie Stelnick.] (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254.) The court, in its discretion, therefore allows Defendants an opportunity to present all evidence and legal argument in a single opposition.


Given the May 15, 2023 trial date, the court can either deny the motion for summary judgment without prejudice thereby allowing Plaintiff an opportunity to file a new motion, or continue the subject hearing for several months in order to allow the completion of discovery, with subsequent submission of a revised opposition, reply and any applicable evidentiary objections. Plaintiff, as moving party, may state a preference at the hearing.


Plaintiff to provide notice.


[1]On April 22, 2022, the court entered the order appointing Alexander Wise as guardian ad litem for Preston Wise.