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 03/27/2024 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.

The Department 53/54 Zoom Link is https://saccourt-ca-gov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear on Zoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NO COURTCALL APPEARANCES WILL BE ACCEPTED. Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/courtreporters/docs/crtrp-6a.pdf.

Parties may contact Court- Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-13.Pdf A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list, Once the form is signed it must be filed with the clerk.

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 granted.

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

34-2023-00333705-CU-BC-GDS: Naeim Zamani Mahfroujaki, individually, and as a derivative action vs. Zoom, Inc., a California corporation 03/27/2024 Hearing on Motion - Other To Appoint Partition Referee and to Clarify the Referee's Duties in Department 53

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. (See Proposed Order filed December 12, 2023.)

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. The Court further stated that if the parties could not agree on a referee, then Caranizadeh could propose a referee to the Court via motion. (Ibid. at 10.)

Defendant attempted to meet and confer with Plaintiff and Cross-Defendant Naeim Zamani Mahfroujaki (“Zamani”) and proposed Kevin Singer (“Singer”) of Receivership Specialists as the referee. Zamani declined to engage in the meet and confer process, contending that the 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 was set for February 29, 2024. This motion was initially set to be heard on February 8, 2024. The Court continued the matter from February 8, 2024 to March 7, 2024, and again to this date, March 27, 2024, so that it could be heard after the ruling on the Motion for Reconsideration. On March 1, 2024 the Court affirmed its tentative ruling denying the Motion for Reconsideration after having taken the matter under submission. (See March 1, 2024 Minute Order.)

In Plaintiff’s Opposition, filed January 26, 2024, Zamani did not address the merits of the motion, but stated only that the motion was premature and should be denied or continued. When the Court continued this matter, it did not authorize any further briefing.

On February 23, 2024, Zamani filed a supplemental opposition to this motion. The supplemental opposition objects to the appointment of Mr. Singer but does not suggest any alternate referee. On February 29, 2024, Defendant filed an objection and motion to strike the unauthorized supplemental opposition.

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 03/27/2024 Hearing on Motion - Other To Appoint Partition Referee and to Clarify the Referee's Duties in Department 53

The Court grants the motion to strike the unauthorized opposition. In the absence of a court order or law stating otherwise, a motion involves the filing of moving papers, opposition papers, and reply papers. (Code Civ. Proc., § 1005, subd. (b).) In particular, opposition papers must be filed at least nine court days before the hearing. (Ibid.) Further, untimely papers, including supplemental papers, need not be considered if there is not a prior order finding good cause for the late submission. (Bozzi v.

Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765; see also Cal. Rules of Court, rule 3.1300(d).) Zamani had the opportunity to address the choice of referee when his opposition was originally due but chose to limit his argument to the prematurity of the motion. Zamani sought neither a continuance of the motion before the opposition was due nor did he request supplemental briefing on the issue of the choice of the referee.

Authority

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.)

The statute contemplates that the parties will reach some agreement regarding the selection of a referee and, failing that, empowers the court to appoint a referee of its own choosing. (See Civ. Proc. Code § 873.040 [“the court shall appoint as referee under this title any person or persons to whose appointment all parties have consented”]; Law Rev Comm. Comment to § 873.040 [“It should be noted that the parties may nominate persons to serve as referee, but absent agreement among the parties, the choice of a referee is in the discretion of the court.”].) In this case, the Court previously ordered in the ruling on the motion for summary judgment that “[i]n the event that the parties cannot agree upon a referee, Caranizadeh shall propose a referee and present that proposal to the Court by way of a separate motion.” (Stouder Decl. Ex C, page 10.)

Discussion

Defendant seeks the appointment of Kevin Singer as referee as well as instructions for

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 03/27/2024 Hearing on Motion - Other To Appoint Partition Referee and to Clarify the Referee's Duties in Department 53

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.)

Kevin Singer states in his Declaration that he is the founder and president of Receivership Specialists, which specializes in referee assignments and partition sales, among other services. (Declaration of Kevin A. Singer in Support of Motion to Appoint Partition Referee and to Clarify the Referee’s Duties (“Singer Decl.”) § 2.) Singer has acted as a Superior Court Receiver/Referee in over 525 cases over the last 23 years. (Id., ¶¶ 3-4, Ex. A.) Singer has been appointed to serve as the referee in partition cases by various judges in the Sacramento County Superior Court, including this Court. (Id., Ex. A) The billing rates for Receivership Specialists range from $85 per hour to $350 per hour. (Id., ¶ 6.) Neither Singer nor Receivership Specialists is associated with or employed by any party in this action. (Id., ¶ 5.)

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. The Proposed Order 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., ¶ 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. (See Proposed Order filed December 12, 2023.)

In his opposition filed before the initial February 8, 2024 hearing date, Zamani did not address the merits of appointing the referee other than to say the motion was premature. A party’s failure to oppose a motion is construed as a concession on the merits of the motion. (See D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 728, n.4.) The Court then continued this motion to be heard on a date when it was no longer premature, i.e. after the hearing on Zamani’s motion for reconsideration. As the Court did not permit further briefing, the Court has stricken the opposition as being unauthorized.

Disposition

The Court grants the motion to appoint Kevin Singer as Referee in this partition action.

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 03/27/2024 Hearing on Motion - Other To Appoint Partition Referee and to Clarify the Referee's Duties in Department 53

The Court’s order on the interlocutory judgment specifically stated that if the parties did not agree on a referee, the Defendant could file this motion to appoint a specific referee. The proposed referee, Kevin Singer, is not excluded from being a referee under section 873.010. Further, the Court has the discretion to choose the referee when the referee cannot be agreed upon. (See Law Rev Comm. Comment to § 873.040 [“It should be noted that the parties may nominate persons to serve as referee, but absent agreement among the parties, the choice of a referee is in the discretion of the court.”].)

It is clear in this case that the parties have not agreed on a referee. Moreover, Plaintiff did not suggest another referee either in his initial opposition nor in his unauthorized supplemental opposition. Rather, he requests that the Court chose a Referee who has no relationship with the Defendant. The Court finds that the single instance of the Mr. Singer being used in one other case in Palm Springs by Defendant’s counsel does warrant rejecting Mr. Singer as the referee. Singer has acted as a Superior Court Receiver/Referee in over 525 cases over the last 23 years. (Singer Decl., ¶¶ 3-4, Ex.

A.) Singer has been appointed to serve as the referee in partition cases by various judges in the Sacramento County Superior Court, including this Court. (Id., Ex. A). Therefore, the Court is persuaded that he is a qualified and impartial choice as Referee in this case.

The Court finds that the Defendant’s detailed Proposed Order, submitted on March 7, 2024, adequately addresses all procedural steps required in conducting the sale.

The Court will sign the Proposed Order submitted by moving party.