Kim Ham vs Dawn Williamson et al
Case No: 18CV04554
Hearing Date: Fri May 24, 2019 9:30

Nature of Proceedings: Motion for Entry of an Interlocutory Judgment

TENTATIVE RULING:

In order to address the matters set forth herein, hearing on this motion is continued to June 14, 2019, at 9:30 a.m. On or before June 7, 2019, plaintiff shall file with the court the additional information addressing the matters identified by the court.

Background:

On September 14, 2018, plaintiff Kim Ham filed her complaint in this action seeking partition of real property located at 456 Valdez Avenue, Goleta (the Property).

The complaint alleges that plaintiff Ham and defendant Dawn Williamson (Williamson) are sisters. (Complaint, ¶ 4.) At the time of the filing of the complaint, Williamson was the personal representative of the Estate of Robert William Williamson, which probate case was pending in this court as case number 15PR00338 (Probate Case). (Complaint, ¶ 5.)

On March 23, 2017, a Notice of Proposed Action was filed in the Probate Case stating that the personal representative, Williamson, would “[c]reate a Promissory Note for $89,623.01 secured by a Deed of Trust on the estate real property located at 456 Valdez, Ave., Goleta, CA 93117 to satisfy the Creditor’s [Claim] of PHILIP M. NONNEMAN for the same amount. No interest shall be due on the Note which shall be payable upon the sale of the estate property.” (Complaint, ¶ 6 & exhibit 2.) (Note: The court on its own motion takes judicial notice of the document attached to the complaint as exhibit 2 as having been filed with the court in the Probate Case on March 23, 2017.) The proposed action was expressly consented to by Ham in the same document. (Ibid.)

On June 12, 2017, the court in the Probate Case entered its order on the first and final report of the personal representative, petition for final distribution, and for payment of compensation (Probate Order). (Complaint, ¶ 5 & exhibit 1; Request for Judicial Notice [RJN], exhibit 1.) The Probate Order orders distribution of the probate estate, including the Property, 50 percent to Ham and 50 percent to Williamson. (Ibid.)

The complaint alleges that Nonneman is a necessary party to this action by virtue of the security interest in the Property as identified in the Notice of Proposed Action. (Complaint, ¶ 6.)

The complaint makes further allegations of some claim or interest in the Property by “All Persons Unknown, Claiming Any Legal or Equitable Right, Title, Estate, Lien, or Interest in the Property Described in the Complaint Adverse to Plaintiff’s Title, or Any Cloud on Plaintiff’s Title Thereto.” (Complaint, ¶ 8.)

On September 24, 2018, Williamson recorded an “Executor’s Deed,” executed April 28, 2018, stating that she was granting, in her capacity as personal representative and pursuant to the Probate Order, the Property as tenants in common a 50 percent interest to Williamson and a 50 percent interest to Ham, where Ham is “taking title to her share as ‘Howard M. Ham III and Kim W. Ham, Trustees under the Howard M. Ham III and Kim W Ham Trust Agreement dated July 11, 2013.’” (RJN, exhibit 2.)

On October 15, 2018, Nonneman recorded a Deed of Trust, executed September 29, 2018, against the Property securing indebtedness in the sum of $89,623.01. (RJN, exhibit 3.)

On January 4, 2019, Ham filed a dismissal against Williamson in her capacity as personal representative of the Estate of Robert William Williamson.

Williamson, in her individual capacity, and Nonneman were served on February 4, 2019.

On March 20, 2019, the court entered the defaults of Williamson and Nonneman.

On April 25, 2019, Ham filed this motion for entry of an interlocutory judgment of partition by sale, appointment of referee, and for other relief. The motion was concurrently served by mail on Williamson and Nonneman at the address at which they were served. Neither Williamson nor Nonneman have filed any response to the complaint or to this motion.

Analysis:

The statutes and rules governing practice in civil actions generally apply to actions for partition except where they are inconsistent with the specific provisions governing partition actions in the Code of Civil Procedure. (Code Civ. Proc., § 872.030.)

“If the court finds that the plaintiff is entitled to partition, it shall make an interlocutory judgment that determines the interests of the parties in the property and orders the partition of the property and, unless it is to be later determined, the manner of partition.” (Code Civ. Proc., § 872.720, subd. (a).)

The court is unable to proceed without further information or clarification from the plaintiff on the following matters:

As stated above, the complaint includes allegations against unknown persons. The partition statutes, including particularly Code of Civil Procedure sections 872.520, 872.550, and 872.320, address naming and serving unknown persons. There is nothing in the court’s record showing service, by publication consistent with partition statutes, on the unknown persons alleged in the complaint. The court is required to determine the interests of all parties in the Property. The court requests plaintiff to explain how plaintiff intends to address the issue of such unknown and unserved persons.

Plaintiff requests that the court take judicial notice of: (RJN, exhibit 1) the June 12, 2017, order in the Probate Case; (exhibit 2) the Executor’s Deed recorded September 24, 2018; (exhibit 3) the Deed of Trust recorded October 15, 2018; (exhibit 4) a promissory note to Nonneman, executed on September 29, 2018, in the principal amount of $89,623.01; (exhibit 5) a notice of pending action recorded on April 8, 2019; and (exhibit 6) a CLTA Preliminary Title Report from First American Title Company for the Property, including as attached some recorded documents affecting the Property.

Exhibit 1 is a court order for which judicial notice is proper. (Evid. Code, § 452, subd. (d)(1). Exhibits 2, 3, and 5 are recorded documents for which judicial notice is also proper. (Evid. Code, §452, subd. (h); see Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.) Exhibit 4 is a promissory note which is not a recorded document. Judicial notice is not appropriate for exhibit 4. Exhibit 4 could be considered as evidence but there is nothing presented providing an evidentiary foundation for exhibit 4.

Exhibit 6 is a preliminary title report. The title report is not subject to judicial notice. “ ‘ “Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.” ’ [Citation.]” (Poseidon Development, Inc. v. Woodland Lane Estates, LLC, supra, 152 Cal.App.4th at p. 1117.) The facts stated in the preliminary title report are not conclusively true. In support of this request, Ham states that a preliminary title report is expressly authorized by statute for use in partition actions, citing Code of Civil Procedure section 872.220. Section 872.220 provides: “If it is necessary to have a title report: [¶] (a) The plaintiff may, prior to commencing the action, procure a title report and shall in the complaint indicate this has been done and designate a place where it will be kept for inspection, use, and copying by the parties. [¶] (b) The court may, upon application of a party, authorize the party to procure a title report and shall designate a place where it shall be kept for inspection, use, and copying by the parties.” (Code Civ. Proc., § 872.220.) “ ‘Title report’ includes a preliminary report, guarantee, binder, or policy of title insurance.” (Code Civ. Proc., § 872.010, subd. (e).) The complaint does not allege a title report; there is nothing cited to the court that the court has authorized plaintiff to procure a title report. Section 872.220 does not state that a title report procured under its provisions is judicially noticeable or that such a title report is even admissible absent compliance with the rules of evidence.

Ham also cites Evidence Code section 1330, which provides:

“Evidence of a statement contained in a deed of conveyance or a will or other writing purporting to affect an interest in real or personal property is not made inadmissible by the hearsay rule if:

“(a) The matter stated was relevant to the purpose of the writing;

“(b) The matter stated would be relevant to an issue as to an interest in the property; and

“(c) The dealings with the property since the statement was made have not been inconsistent with the truth of the statement.”

Section 1330 is an exception to the hearsay rule. Section 1330 does not, by itself, provide that any evidence is admissible. More specifically, section 1330 does not provide that writings affecting an interest in real property are subject to judicial notice. A preliminary title report also does not “affect an interest” insofar as a preliminary title report by its terms is the title insurer’s statement of its opinion about title, exceptions, and exclusions. While the recorded documents attached to the preliminary title report could be the subject of judicial notice as recorded documents, the report is not subject to judicial notice. Moreover, no evidentiary foundation is provided as to the report.

To the extent that Ham wishes the court to consider these documents as evidence, Ham needs to address these issues.

The motion notes that the preliminary title report identifies the Executor’s Deed as ineffective because the executor had no recorded interest, there is no court order appointing the executor, and the document contains an incorrect legal description of the Property. (Motion, p. 8, fn. 6; RJN, exhibit 6, p. 3.) The motion does not states what specific findings are requested from the court to address these issues. The court requires a statement of what specific findings are requested with citations to the evidence supporting those findings and with citation to law authorizing such findings.

The Executor’s Deed identifies plaintiff’s title as taken by Howard Ham and Kim Ham as trustees. The motion states that pursuant to the terms of the Ham Family Trust, each trustee is authorized to act independently on behalf of the trust. (Motion, p. 8, fn. 5.) There is no evidence before the court of the terms of the trust or that Ham has such independent powers with respect to real property. This issue addresses both plaintiff’s ability to act alone and also the nature of the court’s order as to disposition of proceeds (i.e., to Ham individually or to Ham on behalf of the trust). The court needs both supporting evidence and clarification as to the nature of the orders being sought.

The court will continue the hearing on this matter to permit these matters to be addressed and appropriate further documentation filed with the court.