Los Angeles County Superior Court
Case Number: KC066681??? Hearing Date: April 29, 2016??? Dept: J
Re: Gloria Abrica Jimenez v. Antonio Espinosa, et al. (KC066681)
MOTION TO CONFIRM SALE AND OVERBID PROCEDURES
Moving Party: Plaintiff Gloria Abrica Jimenez
Respondent: No timely opposition filed
POS: Moving OK as to Defendant
Plaintiff and Defendants were co-owners of a house. Plaintiff brought this action to partition the subject property. The Complaint, filed on 2/24/14 asserted causes of action for:
1. Partition
2. Accounting
3. Waste
On 4/7/14. Defendant Antonio Espinosa filed a Cross-Complaint for:
1. Action to Quiet Title
2. Fraud
3. Declaratory Relief
After a court trial, an Interlocutory Judgment of Partition was entered in favor of Plaintiff on 4/13/15.
On 4/5/16, Plaintiff?s ex parte application for an order setting hearing to confirm sale and notice requirements was granted. The hearing was set for 4/29/16.
Plaintiff Gloria Abrica Jimenez (?Plaintiff?) and Referee Angel Uberto (?Referee?) seek confirmation of the proposed sale of the subject premises known as 5367 La Madera Ave., El Monte, California.
The motion is made on the following grounds: (1) on April 13, 2015, this court entered an interlocutory judgment of partition; (2) Defendant appealed, but the appeal was dismissed for failure to file an opening brief; (3) subsequent to the dismissal of the appeal, the property was listed in the Multiple Listing Service on February 5, 2016, for $410,000; (4) the highest offer was for a purchase price of $415,000, which the Referee accepted and opened escrow; and (5) the Referee has completed a report and notice of sale.
The terms and conditions of the sale are set forth in the Referee?s report and notice of sale and order setting hearing and overbid proceedings. (See Referee?s Report and Notice of Sale filed on April 5, 2016.) The proposed order is as follows:
1. A hearing to confirm the sale of the subject real property is set for April 29, 2016.
2. The sale price is $415,000.
3. Overbids for the purchase of the property are subject to the following terms:
a. Each overbid must be a minimum of $3,025 over the previous bid.
b. If an overbid is submitted, the overbidder must, as a condition of acceptance, be able to post a deposit of 5% of total bid by cash or cashier?s check at the time of the hearing.
c. Sale to close within 45 days of the hearing.
d. Purchaser may finance the purchase, but financing is not a condition of the sale and the full amount of the purchase price is due upon close of escrow.
e. Purchaser and seller will share the normal costs of escrow.
f. Prorations to be made as of close of escrow.
g. Escrow through choice of the referee.
h. Sale is without warranty other than title.
4. Notice of the sale to be given as follows: by counsel for Plaintiff to Defendants.
NOTICE:
A purchaser, the referee, or a party may move to confirm or to set aside the sale. (CCP ? 873.720(a).) The moving party shall give not less than 10 days’ notice of motion to: (1) the purchaser if the purchaser is not the moving party; and (2) all other parties who have appeared in the action. (CCP ? 873.720(b).)
The proof of service accompanying the notice of the hearing demonstrates that Defendant Antono Espinoza was given at least 10 days? notice. However, it is unclear whether the notice was also given to the purchaser, i.e., Michael Parra. Thus, the court will hear from Plaintiff on this issue.
MOTION TO CONFIRM SALE:
At the hearing, the court shall examine the report and witnesses in relation to the report. (CCP ? 873.730(a).) The court may confirm the sale notwithstanding a variance from the prescribed terms of sale if to do so will be beneficial to the parties and will not result in substantial prejudice to persons interested in the sale. (CCP ? 873.730(b).) The court may vacate the sale and direct that a new sale be made if it determines any of the following: (1) the proceedings were unfair or notice of sale was not properly given; (2) the sale price is disproportionate to the value of the property; or (3) it appears that a new sale will yield a sum that exceeds the sale price by at least 10 percent on the first ten thousand dollars ($10,000) and 5 percent on the amount in excess thereof, determined after a reasonable allowance for the expenses of a new sale. (CCP ?873.730(c)).
When it confirms the sale, the court must order the referee to execute a conveyance, collect the proceeds, take security, and otherwise consummate the sale. (CCP ? 873.750(a).) The order may also include directions on disposition or safekeeping of sale proceeds and of funds held on deposit pending a sale. (CCP ? 873.750(b).)
It appears from the Referee?s Report and Notice of Sale that the proposed sale is reasonable. No opposition has been filed. Therefrore, the motion to confirm the sale will be granted upon confirmation that the purchaser received notice of the hearing pursuant to CCP ? 873.720(b)(1).