Plaintiff’s Motion to Appoint Referee for Partition by Sale After Judgment
Marianne Herning Kay v. Jeanne Herning McWalters, et al.
Plaintiff’s Motion to Appoint Referee for Partition by Sale After Judgment
Hearing Date: July 31, 2026
The motion of Plaintiff Marianne Herning Kay (“Plaintiff”) to appoint a referee for partition by sale is GRANTED. However, the Court declines to appoint Plaintiff’s proposed referee, Albert Nicora. The parties shall meet, confer, and attempt to stipulate to a disinterested and impartial referee. [See Code Civ. Proc. §§ 873.010, 873.040, and 874.315.] Based on other partition actions in this County, the Court is aware that Andrew Swartz and James Cook have been appointed as referees in unrelated cases and would be inclined to appoint one of them if available and willing to serve.
Considering this Court’s ruling, PARTIES TO APPEAR at the Case Management Conference (“CMC”) following the motion hearing.
Plaintiff shall prepare the Proposed Order consistent with this Tentative Ruling.
Background.
The Court entered an interlocutory judgment on October 20, 2025, confirming each party’s one-third interests and ordering partition by sale. [Lorca Decl. at ¶ 6 and Exh. B.] The remaining issues concern the sale of the property—an oceanfront Carmel-by-the-Sea residence— and any contribution/reimbursement claims. [Id. at ¶¶ 5-6 and Exhs. A-B.]
Plaintiff seeks the appointment of a referee under Code of Civil Procedure1 section 873.010 to manage the sale process and proposes attorney Albert Nicora, citing prior cooperation breakdowns with Defendant Jeanne Herning McWalters regarding broker selection. Ms. McWalters opposes the appointment of a referee and contends that, under the Partition of Real Property Act (“PRPA”), the Court may directly appoint a broker instead. She also challenges Mr. Nicora’s disinterestedness, asserting conflicts related to his past law practice and an attorney-client relationship between him and Plaintiff’s counsel’s firm.
Discussion.
The Court agrees with Plaintiff that a referee is necessary. The PRPA did not eliminate referee appointments; sections 873.010 and 874.315 remain applicable. Under section 873.010, the Court may appoint a referee where necessary, desirable, or helpful. [Richmond v. Dofflemyer
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(1980) 105 Cal.App.3d 745, 755.] Here, the record reflects Ms. McWalters’ prolonged impasse and refusal to select a broker, conduct likely to impede the sale process. [See Monroe Decl. at ¶8 and Exh. C.] A referee’s supervision would avoid further delay and conflict. Appointment is therefore appropriate.
A referee must be “disinterested and impartial.” [Code Civ. Proc. § 874.315.] While the Court has no concerns about Mr. Nicora’s competence or experience, the record confirms an ongoing attorney-client relationship between Mr. Nicora and Plaintiff’s counsel’s firm in another matter. [Reply at 4:12-16.] Though the relationship may not establish actual bias, it creates an appearance of partiality inconsistent with section 874.315’s requirements. Ms. McWalter’s additional objection—based on Mr. Nicora’s decades-old partnership with an attorney formerly associated with her prior counsel—is speculative and not persuasive. Nevertheless, the existing attorney-client relationship disclosed in Plaintiff’s reply is sufficient for the Court to decline appointment.
Under section 873.040, subdivision (a), the Court must appoint the referee that the parties unanimously consent to. The Court will permit the parties a brief opportunity to do so. To aid the parties, the Court notes that it recently appointed Mr. Swartz and Mr. Cook as partition referees in other unrelated matters.
Conclusion.
Plaintiff’s motion to appoint a partition referee is GRANTED. However, the Court declines to appoint Mr. Nicora due to the appearance of partiality created by his attorney-client relationship with Plaintiff’s counsel’s firm. Thus, the parties shall meet, confer, and attempt to stipulate to a neutral referee. PARTIES TO APPEAR at the CMC following the motion to discuss next steps.
NOTE RE TENTATIVE RULING
This tentative ruling becomes the court’s order, and no hearing shall be held unless one of the parties contests it by following Rule 3.1308 of the California Rules of Court and Monterey County Local Rule 7.9. Those parties wishing to present an oral argument must notify all other parties and the Court no later than 4:00 p.m. on the court day before the hearing; otherwise, NO ORAL ARGUMENT WILL BE PERMITTED, AND THE TENTATIVE RULING WILL BECOME THE ORDER OF THE COURT AND THE HEARING VACATED. You must notify the court by email or by calling the Calendar Department at 831-647-5800, extension 3040, before 4:00 p.m. on the court day before the hearing.
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