Judge: Stephen P. Pfahler, Case: 22CHCV00032, Date: 2023-01-26 Tentative Ruling
Case Number: 22CHCV00032 Hearing Date: January 26, 2023 Dept: F49
Dept. F-49
Date: 1-26-23 c/f 11-29-22 c/f 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: Denied.
On August 11,
2022, the court continued the hearing to November 29, 2022, in order to allow
Defendants time to conduct further discovery. On November 29, 2022, the court
continued the hearing to January 26, 2023, with no further continuances. The
court therefore considers the full arguments.
Request for
Judicial Notice: Granted.
Evidentiary
Objections to the Declaration Christina Vanarelli, Ex. 9: Overruled.
Evidentiary
Objections to the Declaration of Joshua Huntington: Overruled.
Evidentiary
Objections to the Declaration of Alexandra Wise: Overruled.
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 of 30227 Hasley Canyon
Road, Castaic. According to Fout, the property is currently equally held by the
Carl Fout 2018 trust trustee, Carl Fout, and Valerie Fout 2018 Trust trustee,
Alexandria Wise (Valerie Foust passed away). Plaintiff represents that defendants
Mitchel and Preston Wise are beneficiaries of the Valerie Foust trust, and
therefore hold a potential interest in the property. 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 amended and further amended
opposition contends triable issues of material fact exist on the issue of
whether the property can in fact be subdivided. The terse oppositions are
apparently based on a challenge to the evidentiary sufficiency of the motion
itself (e.g. Plaintiff fails to shift the burden), as well as a represented
deposition of Joshua Huntington, a Supervising Regional Planner with the Los
Angeles County Department of Regional Planning scheduled to occur on January
12, 2023. Plaintiff represents that the process for subdivision would be
addressed, and a supplemental brief provided to the court. (The opposition was
filed before the purported deposition pursuant to the deadlines set by the
court in the November 29, 2022 order. The court electronic filing system shows
no updated brief regarding the deposition as of the tentative ruling
publication cutoff.) Notwithstanding the scheduled deposition, and promised
supplemental brief, the further amended opposition includes a declaration from
Huntington regarding a review of the documents submitted for review.
Plaintiff
in reply contends the legal basis of the motion remains unchallenged. Plaintiff
contends the issue of partition can be decided as a matter of law. Plaintiff
challenges the declarations of defendant Wise and Los Angeles County employee
Huntington. Plaintiff challenges any request for a third continuance.
Plaintiff
brings the motion on grounds that title is held as tenants in common, and
therefore a partition and sale are proper under Code of Civil Procedure section
872.710, subdivision (b), and 872.820, subdivision (b). [Declaration of Carl
Fout.] Plaintiff seeks a sale due to the local zoning ordinance requiring a
minimum gross area of two acres and a net area of 40,000 square feet. Although
the property is 4.83 acres, the property is burdened with various easements,
which prohibits further residential construction, thereby leaving a represented
dedicated building area of 33,546 square feet. [Request for Judicial Notice
& Declaration of Christina Vanarelli, Exhibits in Support: Ex. 1, 6-8.]
Under the ordinance rules, the property cannot be subdivided given the less
than 40,000 square feet of available buildable space on a separately created
lot.
The law of summary judgment
provides courts “a mechanism to cut through the parties’ pleadings in order to
determine whether, despite their allegations, trial is in fact necessary to
resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 843 (Aguilar).) In reviewing a motion for summary judgment,
courts employ a three-step analysis: “(1) identify the issues framed by the
pleadings; (2) determine whether the moving party has negated the opponent’s
claims; and (3) determine whether the opposition has demonstrated the existence
of a triable, material factual issue.” (Hinesley
v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)
The pleadings frame the issues for
motions, “since it is those allegations to which the motion must respond. (Citation.)” (Scolinos
v. Kolts (1995) 37 Cal. App. 4th 635, 640-641; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382-383; Jordan-Lyon Prods., LTD., v. Cineplex Odeon Corp. (1994) 29
Cal.App.4th 1459, 1472.) The complaint alleges a claim for partition.
A plaintiff or
cross-complainant has met his or her burden of showing that there is no defense
to a cause of action if that party has proved each element of the cause of
action entitling the party to judgment on the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(1).) Plaintiff need not
disprove all defenses, if the elements of a cause of action are made. (Oldcastle Precast, Inc. v. Lumbermens
Mutual Casualty Co. (2009) 170 Cal.App.4th 554, 564; WRI Opportunity Loans II, LLC v. Cooper (2007)
154 Cal.App.4th 525, 532.) “When deciding whether to grant summary judgment,
the court must consider all of the evidence set forth in the papers (except
evidence to which the court has sustained an objection), as well as all
reasonable inference that may be drawn form that evidence, in the light most favorable
to the party opposing summary judgment.”
(Avivi, 159 Cal.App.4th at
467; see also Code Civ. Proc., § 437c, subd. (c).) “An issue of fact can only be created by a
conflict in the evidence. It is not
created by speculation, conjecture, imagination or guesswork.” (Lyons
v. Security Pacific National Bank (1995) 40 Cal.App.4th 1001, 1041
(citation omitted).)
While the right to seek partition is not challenged by the
parties, the court reviews the requirements. “To the extent necessary to grant the relief sought or other
appropriate relief, the court shall upon adequate proof ascertain the state of
the title to the property.” (Code Civ. Proc., § 872.620.) Plaintiff presents
the title report. [Vanarelli Declaration, Exhibits in Support, Ex. 2.]
“Except as provided in Section 872.730, partition as to
concurrent interests in the property shall be as of right unless barred by a
valid waiver.” (Code Civ.
Proc., § 872.710.) “If the court finds that the plaintiff is entitled to
partition, it shall make an interlocutory judgment that determines the
interests of the parties in the property and orders the partition of the
property and, unless it is to be later determined, the manner of partition.” (Code
Civ. Proc., § 872.720, subd. (a).) “Notwithstanding Section 872.810, the court shall order that the
property be sold and the proceeds be divided among the parties in accordance
with their interests in the property as determined in the interlocutory
judgment in the following situations: … (b)
The court determines that, under the circumstances, sale and division of the
proceeds would be more equitable than division of the property. For the purpose
of making the determination, the court may appoint a referee and take into
account his report.” (Code Civ. Proc., § 872.820.)
“Partition in kind is favored ‘since this does not disturb
the existing form of inheritance or compel a person to sell his property
against his will. Forced sales are strongly disfavored. [Citation.]’ (Citation.) The
burden of proof remains upon the party endeavoring to force a sale. (Citation.). Thus,
while the new standard may be said to expand the availability of partition
sales, it does not permit a partition sale in the absence of sufficient proof
of the equities of such a method of partition.
“There are two types of evidence which have been held
sufficient to justify a partition sale of property rather than physical
division. The first is evidence that the property is so situated that a
division into subparcels of equal value cannot be made. (Citation.) This test
is not met by evidence that a portion of the property is not equal to the
whole, for that is always the case in a partition action. Nor is this test met
by evidence that the land is not ‘fungible’ or uniform in character. (Citation.)
In order to meet this test the party desiring a partition sale must show that
the land cannot be divided equally.”
(Butte Creek Island Ranch v.
Crim (1982) 136 Cal.App.3d 360, 364 (Butte).)
“The second type of evidence
which supports a partition sale rather than physical division is economic
evidence to the effect that, due to the particular situation of the land, the
division of the land would substantially diminish the value of each party's
interest. (Citation.) The generally accepted test in this regard is whether a
partition in kind would result in a cotenant receiving a portion of the land
which would be worth materially less than the share of the money which could be
obtained through sale of the land as a whole. (Citation.) This is a
purely economic test. If plaintiff, who demands that the land be sold, can
receive a portion of the land through physical division and that portion could
be sold for a sum equal to the amount it could realize through sale of the
entire parcel then as a matter of law no economic prejudice can be shown. The
manifest inequity of ousting an unwilling cotenant from the land where no
economic detriment is suffered cannot be permitted.” (Id. at p. 367.)
The determination regarding
the demanded sale rather than a physical subdivision depends on the
interpretation of the local zoning ordinance relative to the geographical
features of the subject property. The motion itself consists of citation to the
applicable ordinance and zoning standards for the community, with maps. The
motion itself depends on entirely on Plaintiff’s interpretation of said rules,
and documentary evidence, including an email from a Los Angeles County
employee, without any dedicated supporting opinion of a surveyor or zoning
expert.
The court reviews the
applicable land use rules in relevant part. Chapter 23.312.80 of Los Angeles
County Ordinance, Castaic Area Community Standards District, Area Specific
Development Standards provides:
B. Area 2—Hasley Canyon
Area.
1. Purpose. This area is
established to protect and preserve the serene, rural environment of Hasley Canyon.
Hasley Canyon is characterized by large lots, equestrian trails, rolling hills,
and a number of significant ridgelines. The area also contains the Hasley
Canyon Creek.
2. Area Description. The
boundaries of this area are shown on Figure 22.312-D: Area 2—Hasley Canyon Area,
at the end of this Chapter.
3. Clustering. Density
transfer or clustering shall be prohibited in this area.
4. Lot Size. Single-family
residential lots created by a land division shall contain a minimum gross area
of two acres and a minimum net area of 40,000 square feet.
5. Setbacks. New
residential lots and existing legal lots as of the effective date of the
ordinance
establishing this CSD that
have a minimum gross area of two acres where no residence has yet been built,
shall have a minimum front and rear yard setback of 25 feet, and a minimum side
yard setback of 10 feet.
Plaintiff also presents a
copy of the Parcel Map showing the purported easements and flood hazard zones.
[Fout Decl., Exhibits
in Support: Ex. 6.]
Finally, Plaintiff submits an e-mail obtained in response to an inquiry from a
person named Sandra Coffey on the subject property, whereby the answering
party, DRP LDCC represents the property cannot be subdivided, due to the
existence of restricted areas preventing subdivision into two (2) acre lots. [Vanarelli Declaration, Exhibits in
Support, Ex. 9.] Attorney Vanarelli submits a second declaration in reply
attesting to the authenticity of the e-mail and representation that the
answering party was Rick Kuo, Planner with the Los Angeles County Department of
Regional Planning. [Ex. 10.]
The court accepts the written
opinion of Kuo regarding the inability to create two, two-acre lots
notwithstanding the property is identified as 4.83 acres. [Vanarelli Decl., ¶
5.] Kuo specifically identifies a net lot size of 33,546 “after excluding the
restricted use area.” The court assumes Kuo concedes to the ability to create
two, two-acre lots, but finds any subdivision not possible based on an
assumption that the net lot size of 33,546 precludes any such action.
Accepting the Kuo email as
definitive, Plaintiff arguable presents a basis for partition by sale under the
first evidentiary standard. (Code Civ. Proc., § 437c, subd. (p)(1); Butte, supra, 136 Cal.App.3d at p. 364.) The
court however notes that the email lacks any expert support or explanation
regarding alternative options.
As to the second type of
potential evidence for a sale over in kind division--preferred economic
viability of keeping the lot as a single parcel rather than diminishing its
value with potential subdivision— the motion lacks any address. (Butte, supra, 136 Cal.App.3d at p. 367.)
Plaintiff may argue it is not necessarily present this argument given the
reliance on the non-divisibility email from Kuo. It’s not clear whether the
economic viability test constitutes a second standard or an alternative.
Nevertheless, Butte emphasizes the
importance of equity in cases of partition, and the court therefore declines to
disregard the standard due to the failure of Plaintiff to raise it. (Ibid.) Thus, even assuming the Kuo
emailed statement constitutes sufficient evidence of an inability to complete
an in kind division, the court finds the lack of address regarding the economic
equities a basis for a finding of Plaintiff’s failure to meet the standard for
summary judgment. (Code Civ. Proc., § 437c, subd. (p)(1).)
Even assuming the
evidentiary standard regarding economic equity were not required however, the
court considers the counter arguments and evidence. Plaintiff additionally submits
a counter declaration from supervisor Joshua Huntington, who concludes that given
the 4.81-acre site (difference of 0.02 from the declaration of Vanarelli), a
subdivision of two, two acre minimum lots is possible, “subject to further
information.” [Declaration of Joshua Huntington, ¶ 6.] An application from all
owners is required, including plaintiff Fout. [Id., ¶ 7.]
Again, Plaintiff submitted
no updated brief following the scheduled deposition, and it remains unclear
whether the deposition even occurred. Nevertheless, the court declines to
disregard potential options available to the parties given the paucity of
information provided, and the simple reliance on e-mail and declarations
conditioned upon further review of any actual application determining the
viability of a potential subdivision.
Given all parties rely on
emailed and/or a submitted statement from employees of the same government
division regarding the viability of partition, and the potential conflicting
opinions, the court finds triable issues of material fact on the forced sale
propriety of the partition sought by Plaintiff rather than division in kind. [Huntington
Decl., Kuo Email.] Butte, supra,
136 Cal.App.3d at p. 364.) The court
therefore declines to grant the motion for summary judgment or order the
engagement of any part of the process, such as the appointment of a referee to
examine the viability of the partition versus the sale. (See Id. at pp.
368-369.)
The motion for summary
judgment is therefore denied.
Trial
remains set for May 15, 2023.
Plaintiff
to provide notice.