Debra Chimet vs. William Hall

34-2022-00320281-CU-OR-GDS: Debra Chimet vs. William Hall 03/27/2024 Hearing on Motion - Other of Plaintiff Chiment to Appoint Referee in Department 53

Tentative Ruling

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Opposing counsel failed to comply with CRC Rule 2.111(3) and Rule 3.1110(b)(3)-(4).

The Court declines to consider defendant's objections to evidence filed on 3/25/2024 since (1) the minute order continuing this matter from its original hearing date of 3/6/2024 specifically stated that no further briefing on this matter would be permitted or considered and (2) such objections were due to be filed in advance of the original 3/6/2024 hearing date.

Factual Background

34-2022-00320281-CU-OR-GDS: Debra Chimet vs. William Hall 03/27/2024 Hearing on Motion - Other of Plaintiff Chiment to Appoint Referee in Department 53

Plaintiff filed in 2022 this action for the partition of certain real property with a single-family home co-owned by plaintiff and defendant, former romantic partners. Plaintiff previously moved for summary adjudication, seeking an interlocutory order for partition based on the parties each holding as a tenants-in-common an undivided one-half interest in the subject property. On 12/5/2023, this Court granted plaintiff’s motion, finding that the parties are tenants in common with equal ownership interests and that plaintiff was also entitled to an interlocutory judgment for partition.

However, the Court declined to determine “the appropriate method of partition, the method for determining equitable offsets, and the appointment of a referee as these issues were not properly before the Court at [that] time” and instead limited its ruling to “the actual relief requested in the moving papers.” Still, the parties were directed to meet-and-confer as to the appointment of a referee and the method for partition but based on the currently pending cross-motions for appointment of a referee, the parties were able to reach any agreement on a referee.

Moving Papers. Plaintiff Chiment now moves appoint Alexis McGee, a real estate agent, to market and sell the subject property on the grounds that this appointment will be beneficial to the common interests of the parties and prevent unnecessary further litigation. The moving papers argue that because defendant proposes to appoint an attorney to act as a referee and to have a partition in kind, his pending motion to appoint a referee should be denied because defendant has already admitted that a partition in kind is “not inequitable,” the subject property is not amenable to physical partition, and defendant’s proposed attorney-referee would simply add unnecessary costs as he “will merely oversee the realtor [sic] who sells the Property.” Instead, plaintiff suggests “the simplest, fairest, and cheapest option for all the Parties is simply for the Court to appoint a realtor [sic] to sell the Property” and to that end, she nominates Alexis McGee.

The moving papers proceed to argue that a partition by sale is “proper” inasmuch as the subject property cannot be subdivided; a division of the property would substantially diminish each party’s interest, as compared to the proceeds from a sale of the property; and defendant has made “judicial admissions” that a partition in kind would be inequitable and/or is barred by “judicial estoppel” from now seeking a partition in kind.

Opposition. Defendant Hall opposes, arguing that a referee is needed to advise the Court on the manner of partition since the Court’s order on plaintiff’s summary adjudication motion specified that the manner of partition would be determined “at a later time” but plaintiff’s only nominee is currently subject to disciplinary proceedings for fraud before the Department of Real Estate. The opposition proposes three different referees and points out that defendant agrees to pay 100% of the cost for an accounting referee.

Reply. In her reply, plaintiff asserts that a partition referee cannot determine the manner of partition in the absence of an agreement by the parties and as already noted, defendant has already admitted a partition in kind would be inequitable. The reply adds that the disciplinary

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00320281-CU-OR-GDS: Debra Chimet vs. William Hall 03/27/2024 Hearing on Motion - Other of Plaintiff Chiment to Appoint Referee in Department 53

issue with the DRE only relates to Ms. McGee’s allegedly action as a mortgage broker without a license and does not relate to any misconduct as a real estate broker, something she has done for years “without incident” but curiously, the reply admits the restrictions on her license ended in May 2023 without any admission of fault or obligation to pay restitution. Plaintiff also objects to defendant’s alternative nominee, Mr. Griswold, on the ground that “receivers generally leave homeowners with substantially depleted equity” (although Mr.

Griswold is not proposed to be appointed as a “receiver” but rather as a referee) and to defendant’s nomination of only attorneys, when “a realtor [sic] could serve the same purpose.” Finally, the reply contends that defendant owns another home in the area and thus, he could have acted “equitably” by offering to purchase plaintiff’s share of the subject property but has instead “vigorously over-litigate[d] a simple issue to make things as painful as possible for a former romantic partner.”

Discussion

As noted above, plaintiff Chiment now moves to appoint Alexis McGee, a real estate agent, to market and sell the subject property in order to effectuate a partition by sale but much of the moving and reply papers seems focused less on the legal and factual support for this relief than on the reasons why it would be inappropriate to grant defendant Hall’s concurrent motion for appointment of an accounting referee.

Regardless, as clarified in the 12/5/2023 ruling on plaintiff’s motion for summary adjudication, this Court expressly declined to determine “the appropriate method of partition, the method for determining equitable offsets, and the appointment of a referee as these issues were not properly before the Court at [that] time” and instead limited its ruling to “the actual relief requested in the moving papers,” which was a finding that the parties are tenants-in-common with equal ownership interests and that plaintiff was entitled to an interlocutory judgment for partition.

Moreover, at no time since the 12/5/2023 ruling on the summary adjudication motion has this Court made any determination, formal or informal, that the appropriate method of partition in this case is by sale (or by any other means) and as such, plaintiff’s current motion to appoint Ms. McGee to market and sell the subject property is in the Court’s view premature at this juncture.

Additionally, while the moving papers argue that Ms. McGee is experienced and qualified to act as referee to market and sell the subject property, the Luu Declaration filed on 2/7/2024 provides no meaningful support for this characterization other than a single generic, conclusory and unsubstantiated assertion in Paragraph 11 that “[attorney Luu’s] office reviewed the qualifications of numerous partition referees and concluded that Alexis McGee is well-qualified to act as a partition referee in this matter.” It is true that Ms. McGee herself submitted a declaration attesting to her experience and qualifications as a California real estate broker but the opposition correctly points out that Ms. McGee was the subject of a May 2020 “Accusation” filed with the California Department of Real Estate (“DRE”), charging her with a variety of

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00320281-CU-OR-GDS: Debra Chimet vs. William Hall 03/27/2024 Hearing on Motion - Other of Plaintiff Chiment to Appoint Referee in Department 53

misconduct including fraud and dishonesty in connection with at least one real estate transaction. Although this 2020 “Accusation” was resolved in May 2021 by “Stipulation and Agreement in Settlement,” its terms included an order revoking her DRE license, providing her with a “restricted” license and requiring her to pay investigatory costs. The Court acknowledges that these DRE proceedings were resolved by “Stipulation and Agreement in Settlement” but the express terms thereof are enough to raise legitimate concerns about whether Ms. McGee is appropriate for court appointment as a partition referee in this case. Indeed, the Court is not required under law to appoint any particular individual as partition referee, much less one that has any record of accusations or disciplinary proceedings.

Disposition

For the reasons explained above, plaintiff’s current motion for an order appointing Ms. McGee to market and sell the subject property is DENIED. However, this ruling is without prejudice to plaintiff’s right to file at an appropriate time a noticed motion to appoint a real estate professional (other than Ms. McGee) to act as a partition referee to market and sell the subject property.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)