Complaint Unlimited Fee AppliesCal. Super. - 6th Dist.March 2, 2021E-FILED 1 Clifford R. Homer, Esq., State Bar No. 154353 3/2/2021 12:50 PM Paymon Hifai, Esq., State Bar No. 306133 Clerk of Court 2 HORNER LAW GROUP, P.C. Superior Court 0f CA, 800 S, Broadway, Suite 200 3 Walnut Creek, California 94596 §?ggg’708fgsgfinta Clara Telephone: (925) 943-6570 _ _ 4 Facsimile: (925) 943-6888 ReVIewed By: D Hams 5 Attorneys for Plaintiff Frederick Hart, Jr. 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SANTA CLARA 10 UNLIMITED JURISDICTION 11 FREDERICK HART, JR, an individual N0. 21 CV378991 12 Plaintiff, VERIFIED COMPLAINT OF 13 vs. FREDERICK HART, JR. FOR PARTITION AND SALE OF REAL 14 MICHAEL HART, an individual, FRANCES PROPERTY HART, an individual, TRACY HART- 15 DEGREGORIO, an individual, GAIL A. 1 6 HART, an individual, and DOES 1-50 1 7 Defendants. 1 8 19 PlaintiffFREDERICK HART, JR. (“Plaintiff’) alleges: 20 GENERAL ALLEGATIONS 21 1. The subj ect of this action is certain real property situated in Santa Clara County, 22 California. 23 2. The real property is commonly known as 760 Emily Drive, Mountain View, 24 California 94043 and more particularly described as follows: Lot 17, in Block 1, as shown upon 25 the Mac of Tract N0. 1068 Cloverdale Terrace which said map was filed for record in the office 26 0f the Recorder of the County 0f Santa Clara, State of California 0n January 13, 1953 in Books 27 41 of Maps, page 31; Assessors Parcel Number 160-02-023 (the “Property”). 28 /// HORNER&SINGER LLP 1820 Bonanza Street, Suite 200W“ VERIFIED COMPLAINT FOR PARTITION AND SALE 0F REAL PROPERTY 1 3. Plaintiff is informed and believes and thereon alleges that Defendant MICHAEL 2 HART (“Michael”) was and is an individual residing in Santa Clara County in the State 0f 3 California. 4 4. Plaintiff is informed and believes and thereon alleges that Defendant FRANCES 5 HART (“Frances”) was and is an individual residing in Santa Clara County in the State 0f 6 California. 7 5. Plaintiff is informed and believes and thereon alleges that Michael and Frances are 8 married as husband and Wife. 9 6. Plaintiff is informed and believes and thereon alleges that Defendant TRACY 10 HART-DEGREGORIO (“Tracy”) was and is an individual residing and/or doing business in 11 Santa Clara County in the State 0f California. 12 7. Plaintiff is informed and believes and thereon alleges that Defendant GAIL A. 13 HART (“Gail”) was and is an individual residing and/or doing business in Santa Clara County in 14 the State 0f California (Michael, Tracy, and Gail are collectively referred t0 herein as the “Hart 15 Defendants”). 16 8. Plaintiff does not know the true names, capacities, basis for liability 0r interests in 17 the above-referenced property 0f defendants sued in this action as Does 1 through 50, and will 18 amend this complaint when that information is discovered. Plaintiff is informed and believes and 19 on that basis alleges that at all relevant times, each defendant, including any defendant fictitiously 20 named, claims am interest in the Property, was acting as the agent, servant, employee, partner, 0r 21 joint venture of each defendant in doing the things alleged, 0r is responsible in some manner for 22 the damage and disputes alleged in this complaint. 23 9. Plaintiff, Michael, Tracy, and Gail are all siblings and the children of Ruth M. 24 Hart, deceased (“Ruth Hart”). 25 10. Ruth Hart died intestate in 2002 and Gail and Tracy acted as the Executors 0f 26 Ruth Hart’s estate wherein the Plaintiff and the Hart Defendants were awarded and acquired an 27 equal, respective undivided one-quarter interest in the Property. 28 /// HORNERLAW GROUP, PC -2- 200 Walnut Creek, California 94596 VERIFIED COMPLAINT FOR PARTITION AND SALE OF REAL PROPERTY 1 11. Plaintiff is the owner of an undivided one-quarter interest in the above-mentioned 2 property Which is co-owned concurrently in undivided equal one-quarter interests by: 1) Plaintiff; 3 2) Michael Hart; 3) Gail Hart; and 4) Tracy Hart-Degregorio. 4 12. In or about 2003 and as amended thereafter, most recently in 2018, Plaintiff and 5 the Hart Defendants agreed that: 1) Michael and Frances were allowed to live at and occupy the 6 Property until Michael retired in around 2020 0r 2021, at Which time the Parties would sell the 7 Property and distribute a respective one quarter 0f the sale proceeds as more specifically set forth 8 herein; 2) Michael and Frances may take a loan out against the Property in the amount 0f 9 $337,500 and that the Parties would take any necessary steps to allow for Michael and Frances to 10 obtain this loan including having title t0 the Property be vested in Michael’s and Frances’ names 11 only; 3) that Michael and Frances would be solely responsible for the re-payment 0f the loan; 4) 12 that the Parties were t0 sell the Property in 2020 or 2021 When Michael retired; 5) When the 13 Parties sold the Property in 2020 0r 2021 when Michael retired, that Michael’s one-quarter sale 14 proceeds would be reduced by any remaining loan amount; and 6) in exchange for Michael and 15 Frances’ occupancy of the Property, Michael and Frances would be and were solely responsible 16 for any and all repairs, improvements, property taxes, insurance, and principal and interest 17 mortgage payments coming due on the Property and or as needed to keep the Property in top- 18 quality condition. 19 A true and correct copy 0f the written and recorded Agreement to Share Equity between 20 the Parties dated August 10, 2018 is attached hereto as Exhibit A. 21 13. On 0r about August 10, 2018, Plaintiff and the Hart Defendants agreed to advance 22 Plaintiff $18,000 from his forthcoming sale proceeds from the expected sale of the Property, 23 which $18,000 advance would then be deducted from Plaintiff’s sale proceeds. 24 14. Plaintiff reasonably believes that Plaintiff” s interest will be materially affected by 25 this action. 26 15. Defendants possess and own an undivided one-quarter respective interest in the 27 above-mentioned Property that is co-owned 1A by Plaintiff, and which interest 0f Defendants 28 Plaintiff reasonably believes will be materially affected by this action. HORNERLAW GROUP, PC -3 _ 200 Walnut Creek, California 94596 VERIFIED COMPLAINT FOR PARTITION AND SALE OF REAL PROPERTY 1 16. The only encumbrance on the property appearing of record and otherwise known 2 t0 Plaintiff, or apparent from an inspection 0f the property and that the Plaintiff reasonably 3 believes Will be materially affected by this action is the Wells Fargo Home Loan in the 4 approximate remaining principal amount 0f $100,000. 5 FIRST CAUSE OF ACTION 6 (For Partition and Sale of Real Property - Against All Defendants) 7 17. Plaintiff re-alleges and incorporates by this reference the allegations contained in 8 Paragraphs 1 through 16 0f this Complaint, as though fully set forth herein. 9 18. Plaintiff requests that the property described above be partitioned for sale. 10 Partition by sale of the property is more equitable than division in kind of the property because 11 the property is a single-family residence 0n a lot Where physical partition is not permissible under 12 applicable sub-division laws. 13 19. This action is brought, and partition is sought herein, for the common benefit 0f 14 the parties, t0 preserve and secure t0 each 0f them their respective interest and rights in the 15 property. Plaintiff has incurred, and will incur, costs 0f partition herein, including reasonable 16 attorney’s fees for the common benefit 0f the parties hereto, in an amount not yet ascertainable. 17 20. Plaintiff seeks reimbursement of the balance of the Wells Fargo loan to be 18 deducted from and against the partition sales proceeds of Michael and/or Frances. 19 WHEREFORE, PLAINTIFF PRAYS JUDGMENT AS FOLLOWS: 20 ON THE FIRST COUNT: 21 1. A judgment partitioning by sale 0f the Property according t0 the respective rights 0f 22 the parties, and dividing the proceeds including but not limited t0 an undivided one 23 quarter interest to Plaintiff; 24 2. For the expense reasonably incurred by Plaintiff in obtaining a title report, should one 25 be necessarily obtained in this action; 26 3. For the cost 0f satisfying any and all fines, penalties, and fees imposed against the 27 property as a result of actions, or inaction, of Defendant in causing the property t0 fail 28 t0 remain in compliance With applicable ordinances. HORNERLAWGRoum -4- 800 S. Bmadway, Sune 200 Walnut Creek, California 94596 VERIFIED COMPLAINT FOR PARTITION AND SALE OF REAL PROPERTY 1 4. That the costs of partition, and 0f this action, including reasonable counsel fees 2 expended by Plaintiff for the common benefit, fees and expenses 0f referees, and 3 other disbursements be ordered paid by the parties respectively entitled t0 share in the 4 lands divided, in proportion to their respective interest therein and more particularly 5 that Plaintiff be reimbursed for sums advanced in this regard beyond his just 6 proportion thereof, and that the costs be included and specified in the judgment and 7 become a lien and/or reimbursement to Plaintiff from the several shares 0f the parties; 8 5. For the costs of partition, including attorney’s fees, necessarily incurred by a party for 9 the common benefit in prosecuting of defending other actions or other proceedings for 10 the protection, confirmation and perfection 0f title, setting the boundaries, or making a 11 survey 0f the property, with interest thereon from the date 0r dates such expenditures 12 are incurred; 13 6. An award 0f attorney fees spent for the common benefit of all owners; and 14 7. For such other and further relief as the Court may deem proper. 15 16 Date: March 2, 2021 HORNER LAW GROUP, P.C. 17 1%V, r ’ 1 8 By: Clifford R. Homer, Esq. 19 Paymon Hifai, Esq. 20 Attorneys for Plaintiff, Plaintiff Frederick Hart, Jr. 2 1 22 23 24 25 26 27 28 HORNERLAW GROUP, PC _5 _200 Walnut Creek, California 94596 VERIFIED COMPLAINT FOR PARTITION AND SALE OF REAL PROPERTY EXHIBITA ' I RECORDING REQUESTED BY NAME: [maxQHiQfiWflL E RDEDM ILT ' NAME: Law Offices 0f Steven D. Hoffman ADDRESS; 563 South Murth Avenue cm'lsmTE/zw: Sunnyvale, CA 94086 (DOCUMENT WILL ONLY BE RETURNED TO NAME 8: ADDRESS IDENTIFIED ABOVE) 24126875 Re ina fllcomendras . Sargta Clara Countx - Clerk-Recorder 03/04/2019 09:09 M CONFORMED COPY f document recorded. _ figgyngt been compared with original. (SPACE ABOVE FOR RECORDBR’S USE) AGREEMENT TO SHARE EQUITY The undersigned declares that the DOCUMENTARY TRANSFER TAX is $_zero and is an computed on the full value ofthc interest or property conveyed; OR IS 'computed on the fiJH value less value of liens or encumbrances remaining thereon at the time of saKe __.X_ this conveyance is to secure a debt (R&T 1 1921) Signature of Declarant Mail Tax Statements: Frances & Michael Hart 760 Emily Drive, Mountain View, CA 94043-2020 Agreement 1, Frederick Hart agrees and accepts Michael Hart and Frances Hart’s offer of $18,000. The $18,000 is an advance on his 1/4 (one-fourth) equity in the property at 760 Emily Drive. Mountain View, California, 94043. The house wlll go on the market ‘in 2021 and once sold, Frederick Hart will reimburse Michael Hart and Frances Hart the $18,000 from his share of the Equity. 2. Frederick Hart requests that the $18,000 be paid in cash. This transaction has taken place and this Ietter is receipt of the payment. 3. Frederick Hart agrees not to contact Michael Hart or Frances Hart until the sale of the above mentioned property in 2021. At that time, Michael will contact Frederick Hart concerning the disbursement of Frederick’s equity minus $18,000. r 5g: Michael Hart Date Wk (z Mi g/W/M/g/ Frances Hart Date ?Mflé gflh/flr‘/g ' Frederick Hart . Date SEE ATTACHED NOTARY CERTIFICATE LEGAL DESCRImON Real property In the Clw of Mountain View, County of Santa Clara, State of California, described as follows: Lot 17, tn Block 1, as shown upon the Map of Tract No. was med far record In the Office of the Recordm of the on January 13; 1953 ln Book 41 or Maps, page 31. AFN: 150-02~023 ' ARE: 15942-018 1068 Cloverdaie Terrace, which said map County of Santa Clam, State of California, CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this cenlfloate verifies only the identlty of the individual who signed the document to whloh this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ) County of Santa Clara ) On 031 /01 20 M? before me Dennis S R0 Date Here Insert Name and Title of the Officer personally appeared M(Céfl Q/ HflV%, fif‘a M (‘eJJ’/fi V7L Name(s) of Signer(s) and frede/Ick Ha V7 who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same In hls/her/thelr authorized capacity(ies), and that by hls/her/their signature(s) on the instrument the person(s), or the entlty upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph W‘nwmmmm is true and correct. DENNIS S. R0 . . Notary Public- California WITNESS my nd and OfiICIaI seal. v Santa Clara County é ,’y‘L/ Commission a 2229084 . £0My Comm Expires Feb 1 7, ‘2022 Signature M ’ "1 WW" Signature of Notaly Public Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattaohment of this form to an unintended document. Description of Anached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacityfies) Claimed by Signer(s) Signer‘s Name: Signer's Name: [:1 Corporate Officer - Title(s): D Corporate Officer - Title(s): [3 Partner - E] lelted D General [:1 Partner -- D Limited D General E] Individual E} Attorney in Fact D Individual D Attorney in Fact D Trustee D Guardian or Conservator [3 Trustee D Guardian or Conservator D Other: D Other: Signer ls Representing: Signer ls Representing: ©2014 National Notary Association www. NationalNotary org 1 800 US NOTARY (1- 800-876--6827) Item #5907 2/26/2021 3:35 PM FROM: Staples TO: +19259436888 P. 1 l VERIFICA’I‘ION 2 I am a party to this action, and l have read the foregoing VERIFIED COMPLAINT FOR 3 PARTITIION AND SALE OF REAL PROPERTY and know its contents. The matters stated in 4 the Complaint are true based on my own knowledge, except as t0 those matters stated on 5 information and belief, and as to those matters I believe them to bc true. 6 I declare under penaIty 0f perjury under the laws of the State 0f California that the 7 foregoing is true and uon‘ect. ‘ 8 Executed on Februaryfi, 2021 at A {-gugfl't &a‘}_fl, Arizona 9 ‘ 10 iéé,é Z4fl ,n Frederick Hart, Jr. ' 1 2 13 i4 i5 16 l7 1 8 19 20 2 1 22 23 24 25 26 27 28