Debra Chimet vs. William Hall

34-2022-00320281-CU-OR-GDS: Debra Chimet vs. William Hall 03/27/2024 Hearing on Motion - Other of Defendant Hall for Appointment of Referee 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 Hall’s “Motion for Appointment of Referee re: Accounting” is ruled upon as follows.

The notice of motion does not provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06. Moving counsel is directed to contact opposing counsel and advise him/her of Local Rule 1.06 and the Court’s tentative ruling procedure and the manner to request a hearing. If moving counsel is unable to contact opposing

34-2022-00320281-CU-OR-GDS: Debra Chimet vs. William Hall 03/27/2024 Hearing on Motion - Other of Defendant Hall for Appointment of Referee in Department 53

counsel prior to the hearing, moving counsel is ordered to appear at the hearing in person, by Zoom or by telephone.

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

Factual Background

Plaintiff filed in 2022 this action for the partition of certain real property with a singlefamily 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. Defendant Hall now moves to appoint attorney Matthew Taylor as a referee to provide the Court “with an accounting on this issue of offsets.” According to the moving papers, defendant became the sole owner of the subject property in 1998 and in 2001, he recorded a deed transferring the property to plaintiff and himself as joint tenants in order to ensure plaintiff “would not be left destitute upon Defendant’s death.” Defendant insists he never intended to gift to plaintiff “a monetary interest in the property that he purchased and improved exclusively with funds provided by him” but plaintiff subsequently took various actions “to abscond with the 1⁄2 of the Property that was originally intended to only be transferred to her upon Defendant’s untimely passing,” transferring her 1⁄2 interest to a trust in 2021 and thereby severing the joint tenancy created in 2001.

In short, defendant contends that because defendant has alone paid all expenses associated with the property including improvements and repairs, he is entitled to substantial setoffs against plaintiff’s 50% ownership share and these setoffs may well leave plaintiff “with zero dollars in proceeds” from a sale of the property (so as to potentially obviate the need for a forced partition sale of the property). Therefore, defendant seeks to have the offsets and adjustments to which the parties are entitled under Code of Civil Procedure §872.140 determined prior to any partition sale.

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 Defendant Hall for Appointment of Referee in Department 53

Opposition. Plaintiff Chiment opposes, arguing that defendant’s motion is “legally and factually defective because (1) it is not clear why an attorney should act as a referee when defendant has already admitted “a Partition in Kind would be inequitable” and the attorney nominated “appears to lack any formal training in accounting;” (2) the appointment of the proposed attorney would “increase costs unnecessarily” as this attorney “will merely oversee the realtor [sic] who sells the Property;” and (3) the “nominee is inappropriate because a reasonable person could doubt his ability to be impartial within the meaning of Code of Civil Procedure §170.1.” The opposition goes to great lengths to show that a partition in kind is inappropriate here, even resorting to reliance on “judicial admissions” and “judicial estoppel,” despite the fact defendant’s current motion does not actually propose a partition in kind but merely the appointment of a referee to prepare an accounting of adjustments to which the parties are entitled.

Curiously, the opposition also requests the Court instead appoint Alexis McGee, a real estate agent, to market and sell the subject property.

With respect to defendant’s nominee, plaintiff contends that defendant’s current counsel has had attorney Matthew Taylor appointed as a referee in no less than 15 different matters throughout the state and thus, Mr. Taylor “has developed a long-term dependency relationship” with defendant’s counsel which would cause a reasonable person to doubt the former’s ability to be impartial in this case, making him subject to disqualification under Code of Civil Procedure §170.1.

Reply. Defendant insists this motion is intended to resolve the ownership dispute here by appointing one “who is apparently California’s most experienced partition referee to prepare an accounting on offsets” and to address plaintiff’s concern about the referee’s costs, defendant is willing to pay the entire amount due as it will be far less than a trial. While the opposition raises concerns about Mr. Taylor’s qualifications and impartiality, defendant contends that this proposition is baseless but nevertheless is willing to nominate two alternatives (at least one of whom plaintiff’s counsel found “well-qualified to act as a referee”).

Defendant adds that the referee endorsed by plaintiff not only is currently under disciplinary investigation for fraud by the Department of Real Estate but also has no experience as a partition referee, making her unqualified to act in such capacity. Finally, the reply asserts that regardless of whether partition is done by sale or in kind, an accounting will be necessary and a referee is needed to advise the Court on the manner of partition which is appropriate in this case, especially when the order on the summary adjudication motion expressly reserved determination of the manner of partition for a later time and California law now permits the subdivision of certain residential properties like the subject property.

Discussion

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 Defendant Hall for Appointment of Referee in Department 53

As noted above, the Court in its 12/5/2023 ruling on plaintiff’s earlier motion for summary adjudication 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 merely determined “the actual relief requested in the moving papers”: Finding the parties are tenants-in-common with equal ownership interests and plaintiff is 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 any other means.

Given this current status of the case, defendant Hall now moves have attorney Matthew Taylor (or another of the alternatives identified in the reply) appointed as a referee tasked to prepare an accounting of the various allowances, adjustments and/or setoffs to which each party may be entitled under Code of Civil Procedure §872.140 in connection with the eventual partition of the subject property, regardless of the manner of partition later found to be appropriate. Although he characterizes plaintiff’s severance of the joint tenancy he created in 2001 (solely to protect plaintiff from being left destitute by his untimely demise) as nefarious, defendant concedes plaintiff currently holds a 50% interest in the subject property but suggests that because he alone has paid all expenses associated with the subject property, he is likely entitled to sizeable credits and/or adjustments in connection with its partition, potentially leaving plaintiff with little or no value in her share of the property.

Plaintiff Chiment’s opposition seems to misunderstand the purpose for which the proposed accounting referee would serve, claiming that the attorney referee “will merely oversee the realtor [sic] who sells the Property” and will only “increase costs unnecessarily.” As clarified by the reply papers, Code of Civil Procedure §872.140 specifically provides that the Court “may, in all cases, order allowance, accounting, contribution, or other compensatory adjustment among the parties according to the principles of equity” (underline added for emphasis) and because the language expressly indicates this provision applies “in all cases” of partition, it stands to reason that an accounting pursuant to §872.140 is permitted regardless of the manner of partition. Thus, plaintiff’s argument about defendant previously admitting that a partition in kind would be “inequitable” is actually irrelevant to the disposition of this motion.

Likewise, plaintiff’s opposition also contends that the attorney whom defendant has nominated to prepare an accounting here “appears to lack any formal training in accounting” but this contention suggests a misunderstanding of what a judicial accounting actually entails. In Teselle v. McLoughlin (2009 (Reh. Denied)) 173 Cal.App.4th 156, the Third District Court of Appeal explained:

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 Defendant Hall for Appointment of Referee in Department 53

[T]he nature of a [judicial] accounting is unique in that it is a means of discovery. An accounting is a “species of disclosure, predicated upon the [parties’] legal inability to determine how much money, if any, is due.” (1A C.J.S., supra, Accounting, § 6, pp. 7–8, fn. omitted.) Thus, the purpose of the accounting is, in part, to discover what, if any, sums are owed to the [parties], and an accounting may be used as a discovery device. (1A C.J.S., supra, Accounting, § 26, p. 26.) (Teselle, at 180.)

Given this definition of a judicial accounting as merely a means of discovery and/or disclosure in order to ascertain the amounts (or adjustments, setoffs, etc.) to which the parties may be entitled, the fact the attorney proposed by defendant “lack[s] any formal training in accounting” does not necessarily disqualify him from acting as a referee to determine the various allowances and adjustments each party may be entitled to under Code of Civil Procedure §872.140 in connection with this partition proceeding.

The opposition’s final objection to the appointment of attorney Taylor as referee is based on Code of Civil Procedure §170.1, claiming that a reasonable person could doubt his ability to be impartial because defendant’s counsel has had attorney Taylor appointed as a referee in at least 15 different legal proceedings throughout California. As a referee can only be appointed by a court, the fact that attorney Taylor has been appointed as a referee in over 15 different legal proceedings in this state, if anything, suggests he is better qualified than others who have not been so appointed, to act as a referee in the case at bar.

Moreover, because a referee is an officer who exercises judicial functions, the mere fact attorney Taylor has been appointed in over 15 cases in which defendant’s counsel is involved does not support plaintiff’s challenge to his ability to be impartial. Indeed, a referee’s duties are to the Court, not to defendant’s counsel or plaintiff’s counsel. Acting in a manner that is not impartial would constitute a failure in a referee’s execution of its duties. In the end, this Court finds that plaintiff’s opposition has advanced no meritorious objection to attorney Taylor’s appointment as a referee tasked with preparing an accounting pursuant to Code of Civil Procedure §872.140.

Disposition

For the reasons explained above, defendant Hall’s motion to appoint attorney Matthew Taylor as a referee to provide the Court with the accounting contemplated here is GRANTED and consistent with the representations in the reply papers, defendant alone will be responsible for all fees and costs incurred by the referee in this matter.

Pursuant to CRC Rule 3.1312, defendant to prepare a proposed order appointing

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 Defendant Hall for Appointment of Referee in Department 53

Matthew Taylor as referee for the limited purposes described above.

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