PIERCE vs RINALDO

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TENTATIVE RULING

Defendant Sally Rinaldo’s (“Defendant”) petition for appointment of partition referee is ruled upon as follows.

Background

The following background is taken from the complaint. Plaintiff Martha Pierce (“Plaintiff”) and Defendant are sisters. The parties co-owned two pieces of real property: (1) 3117 Zeus Lane in Roseville (“the Zeus Property”) and (2) 4313 Elizabeth Avenue in Sacramento (“the Elizabeth Property”). The parties obtained the properties upon the death of their mother, Patsy Sparling, in 2012 and each owned 50% of the properties. Plaintiff alleges that Patsy purchased the Zeus Property for Plaintiff to live in with her son after Plaintiff separated from her husband.

Plaintiff was responsible for paying the mortgage, insurance, homeowner association fees, and maintenance costs related to the Zeus Property. Shortly after Patsy died, Defendant moved into the Elizabeth Property. Plaintiff agreed to let Defendant live at the Elizabeth Property temporarily until it could be sold and only on the condition that Defendant pay the property taxes, insurance, and maintenance costs (the mortgage had previously been paid off). Defendant verbally agreed to this condition, but after approximately two years of making payments,

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV005868: PIERCE vs RINALDO 05/07/2025 Hearing on Petition for Appointment of Partition Referee in Department 54

Defendant defaulted on the property taxes, and the parties took out a loan on the Zeus Property to pay the tax lien and avoid the Elizabeth Property being auctioned. In 2023, the Zeus Property was sold. The proceeds from the sale were used to pay off the loan taken out on the Zeus Property to pay the tax lien on the Elizabeth Property. Defendant also conveyed Plaintiff $77,000 from the sale to account for the tax issue. Before the sale, Defendant agreed to pay Plaintiff all proceeds related to the Zeus Property, but after the sale, Defendant refused to pay Plaintiff anything further.

Plaintiff filed her complaint on March 27, 2024 alleging causes of action for (1) breach of contract; (2) declaratory relief; (3) partition; (4) ouster; (5) quantum meruit; (6) promissory estoppel; (7) intentional misrepresentation; and (8) negligent misrepresentation. After this action was filed, the parties sold the Elizabeth Property. The proceeds from the sale were partially distributed to the parties but the remainder remains in escrow pending adjudication of this action.

Discussion

As an initial matter, the Court need not rule on Plaintiff’s objections, as they pertain to evidence not pertinent to the Court’s ruling. Additionally, Plaintiff’s argument of insufficient notice is deemed waived by Plaintiff’s opposition on the merits. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697 [opposing a motion on the merits waives any defects or irregularities in the notice of motion].)

Defendant’s motion seeks an order appointing a partition referee “to oversee the fair distribution of the proceeds from the sale of the [Elizabeth] property.” (Corrected Motion, p. 3:5-6.) Defendant contends that the appointment is necessary “to ensure that the division of proceeds is handled in accordance with the financial contributions and legal entitlements of each party.” (Corrected Motion, p. 3:1-2.)

In opposition, Plaintiff contends that the appointment of a partition referee is unnecessary and inefficient, and the parties’ competing claims on the sale proceeds should be determined at trial. Plaintiff further contends that appointment of a referee would be inappropriate given the existence of Plaintiff’s other claims outside of the partition cause of action. Specifically, Plaintiff contends that her non-partition claims arise from the Zeus Property, and that “the final distributions of the remaining Elizabeth Property sales proceeds will require consideration of the claims relating to the Zeus Property.” (Opp. MPA, p. 7:13-14.)

In reply, Defendant appears to shift her position regarding the need for appointment of a referee away from the view that a referee is necessary to “oversee” and “ensure” the distribution of remaining funds is done in conformance with applicable law, to contending that appointing a referee is needed to conduct “an objective and neutral accounting of financial contributions,

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV005868: PIERCE vs RINALDO 05/07/2025 Hearing on Petition for Appointment of Partition Referee in Department 54

payments, reimbursements, and credits associated with the properties” would “promote judicial efficiency and potentially assist the parties in reaching a settlement or narrowing the trial issues.” (Reply, pp. 1:26-2:1, 2:8-10.) For the first time on reply, Defendant then proposes the order appointing the referee contain the following limitation:

The referee shall be appointed solely for the purpose of reviewing financial records and summarizing each party’s respective contributions and obligations related to the subject properties. The referee shall not make findings on legal liability, nor issue recommendations as to final distribution. All legal conclusions and determinations shall remain with the Court.

(Reply, p. 2:12-16, emphasis added.)

Preliminarily, the Court is not persuaded that appointment of a referee is authorized under the present circumstances. Defendant cites Code of Civil Procedure section 873.010 as a basis for appointment of a referee. Subdivision (a) of that section states, “The court shall appoint a referee to divide or sell the property as ordered by the court.” (Code Civ. Proc. § 873.010(a), emphasis added.) Here, the Elizabeth Property has already been sold, without any order from the court. Section 873.010 does not appear to authorize the appointment of a referee after a property has been sold, particularly where the sale occurred without a court order.

Defendant also cites Code of Civil Procedure section 873.040(a), which states, “The court shall appoint as referee under this title any person or persons to whose appointment all parties have consented.” (Code Civ. Proc. § 873.040(a).) This section is not applicable, as the parties have not consented to the appointment at all, let alone to a specific person or persons. Further, this section does not authorize the appointment of a referee, but instead mandates that where the parties have agreed on the selection of the referee, the trial court must appoint that person, if appointment is authorized.

Finally, Defendant also cites Code of Civil Procedure section 873.060, which states, “The referee may perform any acts necessary to exercise the authority conferred by this title or by order of the court.” (Code Civ. Proc. § 873.060.) While this provision grants the referee broad authority, it does not grant the Court the threshold authority to appoint a referee.

Further, the Court is not persuaded that appointment of a referee is necessary or desirable here, assuming it is even authorized. “The word ‘shall’ as used in [section 873.010(a)] should be construed to require the appointment of a referee only where it is determined that a referee is necessary or would be desirable or helpful and that it should not be so strictly construed as to require the expense and time-consuming services of a referee where the court has adequate evidence before it to render its decision.” (Richmond v. Dofflemyer (1980) 105 Cal.App.3d 745, 755.) The Court agrees with Plaintiff’s argument that the existence of her other causes of action makes the appointment of a referee inefficient. The appropriate distribution of the remaining proceeds from the sale of the Elizabeth Property will undoubtedly require an assessment of

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV005868: PIERCE vs RINALDO 05/07/2025 Hearing on Petition for Appointment of Partition Referee in Department 54

Plaintiff’s other claims. Plaintiff’s claims for breach of contract, quantum meruit, promissory fraud, intentional misrepresentation, and negligent misrepresentation relate to the Zeus Property. Defendant acknowledges in her declaration that the “proceeds from the sale of the Zeus Property included certain financial adjustments, credits, and reimbursements that must be account for in the final division of proceeds from the Elizabeth Avenue Property.” (Rinaldo Decl., ¶ 3; see also ¶ 6.) Thus, a referee would essentially be required to adjudicate Plaintiff’s other claims. Defendant has not shown that the Court is unequipped to adjudicate these issues such that a referee would be preferable.

Disposition

Defendant’s motion for appointment of partition referee is DENIED.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. § 1019.5; Cal. Rules of Court, rule 3.1312.)