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
SUMMARY JUDGMENT
MOVING PARTY: Plaintiff, Carl Fout
RESPONDING PARTY: Defendants, Alexandria Wise, et al.
RELIEF REQUESTED
Motion for Summary Judgment on the Complaint for
Partition of Real Property
SUMMARY OF ACTION
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.