Filed 5/23/24 Dilonell v. Chandler CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

FRIDA DILONELL,

Plaintiff and Respondent

v.

SUZANNE CHANDLER,

Defendant and Appellant. B329945

( Los Angeles County Super. Ct. No. BC677717 )

APPEAL from an o rder of the Superior Court of Los Angeles County, Gail Killefer

, Judge. Affirmed

.

Plotkin

, Marutani & Kaufman and Jay J. Plotkin for
Defendant and Appellant.

Peter D. Gordon & Associates and Andrew T. Schoettle for
Plaintiff and Respondent.

_________________________2 This is the second appeal from an action originally begun in 2017 by plaintiff Alice Jackson, who sought partition by sale of a
five

- unit residential rental property in Inglewood in which she owned a 50 percent interest. 1 Defendant Suzanne Chandler
owned the other 50 percent interest. In 2018, Jackson transferred her interest in the property to Frida Dilonell , who continued to pursue the partition action

. In the first appeal, we affirmed the trial court’s ruling that the highest valid offer at the end of the court

- ordered listing period was from a third party, not Dilonell. ( Dilonell v. Chandler (Mar. 23, 2022, B310695 ) [nonpub. opn.]. ) On remand, the third party cancelled escrow. Following a new listing period, the trial court found Dilonell made the highest va lid offer and ordered Chandler to sign Dilonell’s purchase agreement and complete the
sale. Chandler appeals from that order, contending the trial court abused its discretion in ordering her to sell her interest in the property to Dilonell, because Dilonel l’s purchase offer was not in compliance with the trial court’s October 2, 2019

, order and the trial court lacked authority to modify that order. We affirm the
trial court ’s order

.

1 The appeals in this matter were preceded by a contract dispute between the parties, affirmed by our colleagues in Division Two ( Dilonell v. Chandler (Oct

. 24, 2018
, B282634 ) [nonpub. opn.]) , and paralleled by a probate action now itself on appeal in case No. B330813. Both cases involve disputes about the ownership of the property.3 BACKGROUND
In June 2018, after Dilonell substituted in as plaintiff, she

o btained an appraisal of the property at $960,000 and sought to buy Chandler’s interest at the appraised value. Chandler brought two motions to have a partition referee appointed to list and sell the property. Chandler was concerned that a sale price
base d on an appraisal alone would not reflect the property’s true value, which she believed to be about $1 .5 million. As relevant to this appeal, Judge Richard Burdge , Jr.

, sitting in Department 37, denied the motion for a partition
referee and on October 2 , 2019
, issued the first order directing the sale of the property and specifying procedures for the sale. The order directed the parties to select a neutral third party broker and provided that the listing price would be determined by that broker. The order specified that “[a]ny written offer for less than the listing price shall require the written acceptance of both parties.” The listing period was 90 days, but paragr aph 9 of the order provided that if no offer at the listing price was received in the first two weeks of the listing, “either party can purchase the property at the listing price without any right of first offer or right of first refusal. If one of the pa rties is the successful purchaser, then that person need only close the escrow with one half of the agreed to sales price but all other expenses of the sale shall be paid equally by the parties.” The trial court directed the parties to return to court if escrow had not closed in 90 days, for “purposes of the Court considering and making further orders in respect to the sale of the Property.” The broker listed the property for $1

. 5 million. After an
extended six

- month listing period, the highest third part y offer was $1 million. On August 6, 2020, the court ordered the listing4

period extended again, until January 1, 2021, at the lower price
of $1.295 million

. The court’s order also provided: “After January 1, 2021, the highest outstanding valid offer shal l be accepted.” As set forth in more detail in our prior opinion, i n January 2021, the trial court determined that the highest valid offer was a
third party offer from Abdul She r riff (the Sherriff offer) for $1.050 million

. The trial court found Dilonell’s offer to be lower
due to the form of her offer. 2 The court ordered the parties to accept th e Sherriff offer. Dilonell appealed. We affirmed the
trial court’s order and remanded for further proceedings.
When the case was returned to the trial court, Judge Burdge had moved to another courtroom and Judge Killefer had been assigned to Department 37. The parties signed the purchase agreement and opened escrow with Sherriff, but he cancelled the escrow apparently due

to a then

- pending probate action which challenged Dilonell’s interest in the property. Dilonell represented to the trial court that she offered to buy the property for the same amount as Sherriff, but Chandler rejected this offer. At a September 1 3, 2022
, hearing

, Judge Killefer directed the parties to follow the October 2, 2019

, order, but added the condition that the parties could not select the same broker as
before. The parties agreed to a neutral listing broker, who ultimately agreed that the listing price would be $1.125 million

. The parties subsequently stipulated that the listing broker would

2 Briefly, the offer was from “Frida Dilonell on behalf of The Wood Property LLC” in the amount of $527,500 and read, intentionally or not, as an offer for the whole property.5

have 60 days to market the property before either party could purchase the property by making a full price offer. The highest offer received during the initial 60

- day marketing period was $1,102,500. Although the listing broker repeatedly urged Chandler to accept the offer, she refused. The
offer was withdrawn.
After the 60

- day marketing period expired but before the
90

- day listing period ended, Dilonell offered to buy Chandler’s interest in the property for a price of $1.0 05 million for the whole property. (Chandler would receive half that amount for her 50 percent share .) The offer stated that escrow would close upon deposit of half the purchase price ($502,500) plus $16,000 due
under a separate settlement agreement, for a total deposit of $518,500. By the end of the listing period, there was only one third party offe r, for a firm $1 million . The listing broker suggested that the price be reduced to $1

. 1 million and the property
continue to be marketed. Chandler stated she did not want to reduce the listing price. In her statement for the February 16, 2023

, status conference, Chandler asked the trial court to continue the matter
to allow the probate trial to con clude . In her statement, Dilonell
asked the trial court to deem her offer of $1.0 05 million t he highest offer and to order Chandler to sign Dilonell’s purchase agreement and complete the sale. The court continued the status conference to April 5 , 2023,

to allow the probate trial to conclude. At the same time, the court issued a tentative ruling granting Dilonell’s request that Chandler be ordered to execute Dilonell’s purchase agreement and complete the sale to Dilonell. Before that hearing could take6

pl ace, Chandler filed a brief to which she attached a new third party offer for $1.049 million which she herself had obtained. Chandler asked the court to reconsider its tentative ruling and either order Dilonell to pay $1.049 million for the p roperty or

or der the p roperty be sold to the third party. The probate action concluded on April 11, 2023, in favor of
Dilonell. At the hearing on April 20, 2023, the trial court adopted its previously announced tentative decision and ordered Chandler

to execute Dilonell ’s p urchase a greement and complete the sale to Dilonell. This appeal followed.

DISCUSSION
Chandler contends that Judge Killefer could not change Judge Burdge’s October 2, 2019

, order permitting Dilonell to
close escrow with a deposit of 50 percent of the purchase price because, in the absence of a full price offer, “one trial court judge may not reconsider and overrule a ruling of another judge.” 3 This is contrary to Chandler’s position in the trial court, where she

3 To the extent Chandler contends in her reply brief that the order permitted the parties to purchase the property only for the full list price, we disagree. We do not consider claims made for the first time in a reply brief. Further

, Chandler has not cited any language from the order imposing such a restriction. The order in essence gives a party the right to purchase the property at full price if no full price offers are made in the marketing period, but the order in no way requires such an offer.7

argued that Judge Killefer did have authority to change the
order. 4 We agree that, as a general rule, “ the power of one judge to vacate an order made by another judge is limited.” ( In re Alberto (2002) 102 Cal.App.4th 421, 427 .) We review a trial court’s order

to reconsider and vacate the ruling of another judge for an abuse
of discretion

. (See In re Marriage of Oliverez (2015) 238 Cal.App.4th 1242, 1247.) We see no abuse of discretion because

we u nderstand an exception to that rule, identified by Chandler
in the trial court, to be applicable here: “ [W] here the trial court’s Order governs future events and circumstances render modification of the Order necessary or appropriate, the Court has the power to modify its Order. Specifically in a circumstance in
which t he trial court issues a judgment or order governing future actions and there exists a possibility of an unfor [ e ] seen change in circumstances over which the Court has no control, the Court retains the inherent authority to modify the judgment or Order (Rest at .2d Judgments, section 73, com.b.).” We also agree with Chandler that “[b]ecause of the change of circumstances in this case by Mr. Sher [r] iff’s cancellation of the escrow, and the passage of time since January [] 2021, and changes in market conditions, this is an appropriate case for the trial court to exercise its authority to modify its previous orders concerning the
sale of the P roperty.”

4 We recognize Chandler does not agree with the specific “modifications” made by Judge Killefer, but that has no bearing on whether the trial court had the authority to modify the o rder.8 Even if the exception were inapplicable, we would find that permitting Di lonell to close escrow with a 50 percent deposit did

not amoun t to reconsidering, overruling

, or vacating the October

2 , 2019
, order

. The interpretation of a court order is a question of law which we review de novo. ( Dow v. Lassen Irrigation Co. (2022) 79 Cal.App.5th 308, 326.) As we noted in our opinion in the first appeal, the 50 percent escrow deposit provision expressly applies to a full listing price offer by a party. The order is silent on escrow requirements when a party has made the hig hest offer for the property, but the offer is for less than the full listing price. As we explained: “If we were to extrapolate from the court’s order to other offers, we would find the most reasonable understanding would be that a party who makes an offe r for the property need only deposit half the purchase price to close escrow.” ( Dilonell v.
Chandler

, supra , B310695.) Thus, such a provision would be consistent with the October 2, 2019

, order. We previously noted
that the trial court could make an ord er permitting a party to close escrow by depositing 50 percent of the purchase price, when the purchase price was less than the full listing price. That, in effect, is what happened here. The trial court ordered Chandler to accept Dilonell’s offer, which included a provision allowing an escrow deposit of 50 percent of the purchase price. Further, and perhaps more importantly, the October 2,
2019
, order expressly contemplated that further orders would be necessary if escrow did not close within the specifi ed 90

- day listing period. The October 2, 2019

, order did not limit what additional orders might be needed. Such a provision was just
common sense in this case: i f the property did not sell when marketed using the timeline and procedures in the order, an entirely different approach to the sale might well be necessary.9

As Chandler acknowledged in the trial court, an order may properly contain such an express provision for future
modifications. When Judge Killefer took active control of the case o n remand after Sherriff cancelled escrow, she had authority to devise a new approach to the sale under the further orders provision of the October 2, 2019

, order. The fact that she initially directed the parties to follow the October 2, 2019

, order did no t negate that provision. Thus, her order permitting a 50 percent escrow deposit by Dilonell was actually authorized by the October 2, 2019
, order, not contrary to it. To the extent Chandler argues Judge Killefer abused her
discretion in permitting a 50 pe rcent deposit of the purchase price, we d isagree

. ( Cummings v. Dessel (2017) 13 Cal.App.5th 589, 597 [standard of review for interlocutory partition order is abuse of discretion].) The goal of a partition sale is to actually sell the property
for a fair price in a limited period of time. In this case, the trial
court’s order that the parties use a neutral broker and list the property for sale was designed to ensure that the property was sold at a price determined by the market (and not an appraiser) ; this was done largely done in response to Chandler’s concerns. There have now been two extended and impartial listing periods, and Dilonell was ultimately the high bidder for the property in both periods. She offered to match the Sherriff offer from th e first listing period after Sherriff cancelled escrow. Chandler refused. Dilonell again emerged as the high bidder at the end of the second listing period, after Chandler refused a higher third party offer. At this point, the market has spoken. Facili tating the completion of the sale at this fair market price by requiring a10

deposit of only 50 percent of the purchase price (the amount due to Chandler) is consistent with the goals of a partition action and
the trial court’s October 2 , 2019
, order, and is in both parties’ best interests at this point. Placing obstacles in the way of Dilonell’s purchase is not in either party’s best interest. Chandler expressly claims on appeal that requiring a deposit of the full purchase price would prevent Dilonell from purchasing the property, and that the late third party offer she somehow found would then become the high offer.
She contends that the thir d party offer represents the true market value and it is only fair that the property be sold for this price. This is wishful thinking. The trial court rejected this late third party offer when it ordered Chandler to sign the purchase agreement for the Di lonell offer. We see no abuse of discretion in this decision, as the late third party offer clearly did not comply with the trial court’s orders. Thus, if the Dilonell offer is withdrawn due to a pointless requirement that she deposit money
owed to herse lf in escrow, the listing process will start all over again. T here is absolutely no guarantee that a third listing period will result in a higher final offer than the current Dilonell
offer as borne out by the fact that, s o far, successive listings have

r esulted in lower final offers

.11 DISPOSITION The trial court’s order is affirmed. Appellant Chandler to bear costs on appeal

.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, P. J. We concur:

GRIMES , J.

WILEY, J.