Naeim Zamani Mahfroujaki, individually, and as a derivative action vs. Zoom, Inc., a California corporation

34-2023-00333705-CU-BC-GDS: Naeim Zamani Mahfroujaki, individually, and as a derivative action vs. Zoom, Inc., a California corporation 02/08/2024 Hearing on Motion - Other To Appoint Partition Referee and to Clarify the Referee's Duties in Department 53

Tentative Ruling

NOTICE: Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure: To request limited oral argument, on any matter on this calendar, you must call the Law and Motion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below.

If no request for oral argument is made, the tentative ruling becomes the final order of the Court. Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or by video conference via the Zoom video/audio conference platform with notice to the Court and all other parties in accordance with Code of Civil Procedure §367.75. Although remote participation is not required, the Court will presume all parties are appearing remotely for non-evidentiary civil hearings.

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If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING: Defendant and Cross-Complainant Seyedmohammad Caranizadeh’s (“Defendant” or “Caranizadeh”) Motion to Appoint Referee and related relief is continued on the Court’s own motion to March 7, 2024.

34-2023-00333705-CU-BC-GDS: Naeim Zamani Mahfroujaki, individually, and as a derivative action vs. Zoom, Inc., a California corporation 02/08/2024 Hearing on Motion - Other To Appoint Partition Referee and to Clarify the Referee's Duties in Department 53

Defendant’s evidentiary objections to portions of the Zamani declaration offered in support of the opposition are overruled.

Caranizadeh seeks an order appointing Kevin Singer and Receivership Specialists as the referee to sell the parcel of real property commonly known as 2303 Fulton Avenue, Sacramento, California 95825 (APN: 278-0094-026-0000) (the “Property”). Caranizadeh further moves pursuant to Code of Civil Procedure sections 873.010, 873.060, and 873.070 for an order clarifying the duties of the partition referee.

Overview

This motion follows the Court’s granting of Caranizadeh’s motion for summary adjudication on November 21, 2023, in which the Court ordered the partition by sale of 2303 Fulton Avenue, in Sacramento, California (the “Property”) pursuant to CCP 873.010. (See Stouder Decl. Ex. C) The Court ordered that a referee shall be appointed to sell the Property and further ordered the parties to meet and confer regarding the referee. Caranizadeh states he attempted to meet and confer with Plaintiff and Cross- Defendant Naeim Zamani Mahfroujaki (“Plaintiff” or “Zamani”) and proposed Kevin Singer (“Singer”) of Receivership Specialists as the referee.

Zamani’s counsel responded that selection of a referee was premature because Zamani planned to file a motion for reconsideration of the Court’s summary adjudication order. (Ibid. Ex. B) Plaintiff timely filed a Motion for Reconsideration on December 14, 2023, two days after this motion was filed. The hearing on that motion is set for February 29, 2024. The subject motion concerning the appointment of a referee was initially scheduled to be heard on March 26, 2024. On January 4, 2024, defendant sought to advance this motion to this date, February 8, 2024, on an ex parte application, which was granted.

Plaintiff Zamani opposes this motion on the ground that it is premature, because of his pending motion for reconsideration of the order granting summary adjudication of the partition action, which could render moot the appointment of a referee. The reconsideration motion is set for hearing approximately three weeks from the date of this hearing. Zamani states that the motion for reconsideration is based on the contention that his legal status had changed to a tenant in common because he terminated his joint tenancy with Defendant a few days before the MSA hearing, at which point he contends he has a right to purchase the property pursuant to Code of Civil Procedure § 874.317 without the need for a referee. Zamani offers no opposition to any of the points made in this motion.

Authority

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00333705-CU-BC-GDS: Naeim Zamani Mahfroujaki, individually, and as a derivative action vs. Zoom, Inc., a California corporation 02/08/2024 Hearing on Motion - Other To Appoint Partition Referee and to Clarify the Referee's Duties in Department 53

A court may appoint a referee to sell property. (Code Civ. Proc., § 873.010.) The referee may not be: (1) a clerk or deputy of the clerk; (2) a former or present partner or employee of the judge; (3) a relative within the third degree of the judge or the judge’s spouse or the spouse of such a relative; or (4) an owner of any interest that is the subject of the action. (Code Civ. Proc., § 873.050.) A court may “instruct the [partition] referee” and the referee may perform any acts necessary to exercise the authority conferred by statute or by a court order. (Code Civ. Proc., §§ 873.010, subd. (b)(2), 873.060.) On noticed motion, the referee or any party may petition the court for instructions concerning the referee’s duties. (Code Civ. Proc., § 873.070.)

Discussion

Defendant seeks the appointment of Kevin Singer as referee as well as instructions for the Referee. Singer is not excluded from being appointed under section 873.010. Caranizadeh’s counsel discloses that he is currently using Singer as the referee for a partition sale in Palm Springs. (Stouder Decl. § 5.) Outside of this one usage as referee, Caranizadeh’s counsel has no preexisting relationship with Singer or Receivership Specialists. (Ibid.)

To efficiently exercise a referee’s duties, a referee must have a court order in place that details the referee’s powers and responsibilities for selling the Property, outlines how the referee appointment will conclude, and addresses housekeeping issues such as the referee’s billing rates and the filing of monthly referee reports that update the Court and parties on the sale progress. (Singer Decl. para.7.) Having a detailed order in place establishes a roadmap for the partition and ensures that the referee will not need to regularly seek further instructions from the Court, which in turn helps minimize costs to the parties and better serves judicial economy. (Ibid.) Defendant has presented a Proposed Order that establishes the referee’s duties with respect to the marketing and sale of the property as well as the division of sales proceeds and the termination of the referee appointment.

In opposition, Zamani does not address the merits of appointing the referee. However, he contends that his motion for reconsideration should be determined before the court hears a motion to appoint a referee to sell the property. Zamani argues that if he prevails on his motion for reconsideration, and the MSA is reversed, no referee would be necessary as Zamani would be entitled to purchase Defendant’s interest in the property and there would be no need for a public sale. Zamani contends that Defendant’s request to advance the hearing date on this motion from March 26 to February 8 by way of ex parte application was a tactical attempt to rush the sale of the property on the open market before the reconsideration motion is heard. In support of

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00333705-CU-BC-GDS: Naeim Zamani Mahfroujaki, individually, and as a derivative action vs. Zoom, Inc., a California corporation 02/08/2024 Hearing on Motion - Other To Appoint Partition Referee and to Clarify the Referee's Duties in Department 53

the ex parte application Defendant states he sought the advancement of the March 26 hearing to this date on the basis of insolvency. He stated: “I currently have no job or income. As a result, I am paying for the mortgage and other expenses on the Property from my savings. In October 2023, I got behind on a mortgage payment for the Property and it affected my credit. The property taxes on the Property are past due because of my lack of current job or income. Continuing to pay for the mortgage and other expenses on the Property would constitute a severe financial hardship for me.

My decreasing ability to pay for the mortgage on the Property risks the initiation of the foreclosure process on the Property due to nonpayment of the mortgage. The more time that passes before the partition referee is appointed and can begin taking steps to the sell the Property then the greater the risk of foreclosure, or starting the foreclosure process, on the Property. (Defendant’s Declaration in support of ex parte application, January 3, 2024, paras. 9-13)

Contrary to Defendant’s representations made at the ex parte application, Zamani contends there is no danger of the Property falling into foreclosure, nor are the property taxes in arrears. Zamani states that he has paid the first installment of the property taxes and the January 2024 mortgage payment (Declaration of Naeim Zamani Mahfroujaki (““Zamani Decl.”) Exh. 2.) Zamani contends he is the main borrower on the mortgage for the Property, and has confirmed that the mortgage is current, as shown in a letter dated January 5, 2024 which Zamani obtained from the lender, U.S.

Bank. (Zamani Decl., Exh. 3.) Plaintiff asserts that there is no threat of foreclosure and thus hearing this motion before the motion for reconsideration is heard would be “putting the cart before the horse.” Zamani contends this Referee Motion should be denied, or at a minimum, stayed, until the Court resolves the Motion for Reconsideration set for hearing on February 29, 2024.

In reply, Defendant asserts that this motion is not premature because the MSA Order was and remains the order of the Court. Therefore, defendant urges the Court to grant the relief requested, contending Zamani should not be permitted to turn the present motion into a discussion of the merits of the reconsideration motion, when that motion is not yet before the Court. Counsel for defendant states that he offered to stipulate to have the motion for reconsideration and the motion to appoint the referee to be heard on the same date.

Mr. Zal responded and stated he was agreeable to having this motion and the motion for reconsideration consolidated for hearing on February 29, 2024. Defendant responded with a proposed joint hearing date of February 13, 2024, at which point counsel states that plaintiff’s counsel was no longer amenable to a consolidated hearing on the motions. (Declaration of Michael G. Cross, paras. 2-7) In response to Zamani’s declaration challenging the truth of Defendant’s ex parte declaration, with regard to threatened foreclosure, Defendant contends that the declaration is irrelevant

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00333705-CU-BC-GDS: Naeim Zamani Mahfroujaki, individually, and as a derivative action vs. Zoom, Inc., a California corporation 02/08/2024 Hearing on Motion - Other To Appoint Partition Referee and to Clarify the Referee's Duties in Department 53

and untimely because the time to raise the points in Zamani’s declaration was at the time the ex parte relief was requested.

Disposition

For purposes of this calendared hearing date, the Court determines that granting the instant motion at this time prior to the hearing on the motion for reconsideration is a potential waste of party, court, and receiver resources. Defendant has previously offered to have the motions consolidated for hearing on the same date, impliedly and correctly acknowledging that the outcome of the pending motion for reconsideration may be relevant such that the referee motion may be premature. While the Court makes no comment here regarding the merits of the motion for reconsideration (nor should the parties construe this ruling as impliedly constituting such a comment), the Court finds sufficient cause at least to continue the hearing on this motion, to be set for hearing one week after the hearing on the motion for reconsideration, which shall be March 7, 2024.

For the reasons discussed above, the Court is persuaded that this short continuance of the hearing of this motion will not create an undue burden for defendant or danger of losing the property in a foreclosure.

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or further notice is required.