Case Number: TC028764 Hearing Date: August 09, 2018 Dept: A

# 9. Stephanie Aguayo v. Evelia Guerrero, et al.

Case No.: TC028764

Matter on calendar for: Hearing on motion for order to appoint Adeyanju Ajetunmobi as real estate broker.

Tentative ruling:

I. Background

This is an action for partition of real property and for an accounting. The parties agreed to partition of real property by sale; a stipulation was filed on April 20, 2018. The parties selected a third party to appraise the property; the appraisal came in at $555,000. The stipulation gives Luis Huitz and Rachel Lugo (daughter and son-in-law of defendant Guerrero) a right of first refusal to purchase the property at its appraisal price within 14 days of being notified of the appraisal and “shall supply to the Parties a pre-approval letter and/or proof of sufficient funds to purchase the property at the same time as they exercise their option to purchase the subject property.” (Mtn. Exh. 1, ¶ 6.)

Huitz and Lugo were notified of the appraisal value on May 18, 2018. The option expired on June 1, 2018. Huitz and Lugo allegedly tendered a conditional pre-approval letter in the amount of $440,000 and a statement that “the balance of the purchase price not covered by the Huitz and Lugo loan will be paid by Evelia Guerrero.” (Mtn. Exh. 4.)

Plaintiff argues that Huitz and Lugo failed to property exercise their option and now wishes to proceed to appointing a broker to sell. Defendant Evelia Guerrero opposes.

II. Analysis

A stipulation is interpreted using the ordinary rules for contract interpretation. (Miles v. Speidel (1989) 211 Cal. App. 3d 879, 883.) The issue is whether Huitz and Lugo provided “proof of sufficient funds to purchase the property.” (Mtn. Exh. 1, ¶ 6.) The parties have differing interpretations of what constitutes “sufficient funds.” When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible. (Code Civ. Proc. § 1639.) Here, there is no parol evidence as to the meaning of this phrase, and the determination of its meaning may be decided as a matter of law. (Winet v. Price (1992) 4 Cal. App. 4th 1159,1165.)

The transcribed June 1, 2018, voicemail from Huitz and Lugo’s loan officer provides the details of the purchase offer. (Decl. Davis Exh. 5.) The balance is being paid from Guerrero’s equity in the property. (Ibid.) The property is owned as follows:

· 1/3 part by Guerrero;

· 1/3 part to Stephanie Clark and Ruben Aguayo, Jr., as joint tenants;

· 1/3 part to Marina Aguayo, Lisandra Aguayo, and Joel Aguayo, Jr., as joint tenants

(Stipulation, pg. 3:12–14.) The appraised value was $555,000. One third of that amount is $185,000. The transaction Huitz and Lugo were proposing is a gift of equity transaction. They acquired pre-approval for a $444,000 loan; the balance of $111,000 would be in the form of equity and gifted to Huitz and Lugo in the form of a down payment. Guerrero would then exit the deal with $74,000.

Plaintiff argues that such a purchase arrangement is not sufficient, timely proof of funds to exercise the option to purchase. Defendant Guerrero argues that it is. There are no additional references to “sufficient funds” in the stipulation. The only condition upon the proof of sufficient funds is that it “shall not involve payment of commission to any agent representing Huitz and Lugo.” (Mtn. Exh. 1, ¶ 6.) There is no language barring a gift of equity transaction. Ms. Guerrero clearly has a 1/3 interest ($185,000) in the form of equity in the property. Guerrero has additionally offered to put the remaining $74,000 in escrow to resolve any accounting issues that may arise. Huitz and Lugo subsequently increased the amount of their loan to $500,000, which would result in $130,000 being placed in escrow. The combination of Ms. Guerrero’s equity and the pre-approved loan provided plaintiff with “sufficient proof of funds” to purchase the property when they sought to exercise their option.

III. Ruling

Plaintiff’s motion to appoint a real estate broker is denied.

Next dates: CMC 8/20/18