Motion for Equitable Credit; Motion for Attorney Fees; Notice of Joinder; Motion for Final Approval
The Case Management Conference is continued to December 10, 2026, at 9:30 a.m. in Department C12.
Moving Party to give notice of this ruling.
7. Cung vs. Cung
20-01126838
1. Motion for Equitable Credit 2. Motion for Attorney Fees 3. Notice of Joinder 4. Motion for Final Approval
Motion for Equitable Credit
Plaintiff Khanh Cung’s Motion for Equitable Credit is DENIED. Plaintiff seeks to apportion the $99,100 in misappropriated rents against Defendant Khiem’s share of the proceeds, characterizing this as a cost of the partition that can be equitably apportioned under Code Civ. Proc. §847.040. The Court has already found this to be an item of damages which was previously excised from the interlocutory judgment in the Court’s ruling on Defendant Khiem’s motion to vacate judgment. (See ROA 648 [8/29/25 Minute Order] at p. 3.) The court finds that this alleged misappropriation of rents is not a cost of partition and will not consider this item in apportioning the costs of the partition.
Motion for Attorney Fees
The Court previously GRANTED Plaintiff Khan Cung’s Motion for Attorney Fees in part. (See ROA 723 [2/27/26 Minute Order].) The Motion was GRANTED with respect to the request for $169,332.62 in fees incurred by Plaintiff, but the hearing was continued for the issue of apportionment of those fees, which is to be addressed with the Receiver’s Motion for Final Accounting. Plaintiff was also given leave to file a supplemental declaration to identify any fees that have accrued since 10/15/25. Plaintiff has submitted the declaration of Shelly J. Shafron, which indicates a further $16,080.50 has been incurred since 10/15/25. The Court has assessed Mr. Shafron’s declaration and finds that these fees were reasonable, and GRANTS the motion with respect to these additional fees, for a total award of $185,413.12.
Plaintiff’s Notice of Joinder in the Motion for Final Approval
Plaintiff’s Notice of Joinder in the Referee’s Motion for Final Approval and Instructions is received. To the extent that Plaintiff seeks any departure from the recommendations of the referee in this
notice of joinder, the Court shall treat this notice as part of Plaintiff’s briefing in response to the Motion for Final Approval and shall address the substance of Plaintiff’s requests in the forthcoming ruling on the Motion for Final Approval.
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Motion for Final Approval
Referee John Pagliassotti’s Motion for Final Approval and Instructions is GRANTED. (Code Civ. Proc. §873.010.)
Mr. Pagliassotti was appointed by the court to oversee the partition by sale of the two properties that are the subject of this action. The sale of the properties has been completed, and the Referee has submitted his accounting of the proceeds from the sales.
The Court has previously permitted interim distributions of the referee’s fees and fees incurred by referee’s counsel. (See ROA 219 435, and 526.) The referee now seeks to recover a fee of $33,012 and attorney fees of $156,263 (including interest) to his current counsel and $73,718 to his former counsel.
Mr. Pagliassotti has submitted a declaration that substantiates the $33,012 in fees incurred for services performed in this case for which he has not yet been paid. (See ROA 707, Ex. A [Pagliassotti Decl.] at ¶5, Ex. 2.) The Court has reviewed Mr. Pagliassotti’s declaration and finds the $33,012 fee to be reasonable and necessarily incurred in the course of Mr. Pagliassotti’s assignment.
Referee’s current counsel has submitted the declaration of Walter Whitman Moore. (See ROA 707, Ex. B [Moore Decl.].) Mr. Moore has substantiated the sought after hourly rate of $650 for services provided to the Referee. (See Moore Decl. at ¶2.) Mr. Moore has provided a breakdown of the time spent in conjunction with this matter. (See Moore Decl. at Ex. 4.) Mr. Moore has provided a basis for the calculation of interest on these fees. (See Moore Decl. at Ex. 5.) The Court finds that the total amount of $153,411.34, consisting of fees and interest, incurred is reasonable and is approved as a cost of the partition.
Referee’s former counsel has submitted the declaration of Shelly J. Shafron. (See ROA 707, Ex. C [Shafron Decl.].) The Court has, in several instances, found Shafron’s rates to be reasonable. Shafron has submitted a breakdown of the time spent providing legal services to the referee. (See Shafron Decl. Ex. 6.) Shafron has shown that, as to the $73,718.25 sought, there is a remaining balance of $35,299.25 after Defendants Kha Cung and The Thi Cung stipulated to being
responsible for $38,419 of the $73,718.25. The Court finds this total amount to be reasonable, and the remaining balance is approved as a cost of the partition.
As discussed above, the Court has also approved an additional award of attorneys’ fees incurred by Plaintiff in the amount of $169,332.62.
Equitable Assignment of Costs of Partition
The Court has discretion to equitably apportion the costs of the partition. (See Code Civ. Proc. §847.040 [“Except as otherwise provided in this article, the court shall apportion the costs of partition among the parties in proportion to their interests or make such other apportionment as may be equitable.”].)
Here, the Court, in its discretion, directs that the fees of the Referee, Referee’s counsel, and Plaintiff’s counsel shall be equitably apportioned as follows:
1. $33,012.00 in Referee Fees shall be surcharged to Defendant Khiem Tuan Cung 2. $153,411.34 in Attorneys’ Fees sought by Referee’s current counsel shall be surcharged to Defendant Khiem Tuan Cung 3. $73,718.25 in Attorneys’ Fees sought by Referee’s former counsel shall be surcharged to Defendant Khiem Tuan Cung in the amount of $35,299.25; Defendant Kha Tuan Cung in the amount of $19,209.50; and Defendant The Thi Cung in the amount of $19,209.50.
These surcharges will result in a negative distribution to Defendant Khanh Tuan Cung. The Court agrees with the Referee’s proposal to equalize this negative distribution proportionally to the three Parties who will receive a distribution from the proceeds.
Instructions for distribution of the proceeds
1. The Court hereby approves and settles the Referee’s final accounts in this partition action pursuant to Code Civ. Proc. §873.010, subd. (b)(5).
2. The Court hereby instructs the Referee to pay the following fees and expenses, for services rendered in connection with the partition, in the amounts indicated, pursuant to Code Civ. Proc. §873.010, subds. (b)(2) and (b)(3): a. Referee’s fees in the amount of $33,012.00 to the Referee. $15,570 of this amount shall be surcharged against the distribution to Defendant Khiem Tuan
Cung. $8,721 of this amount shall be surcharged against the distribution to Defendant Kha Tuan Cung. $8,721 of this amount shall be surcharged against the distribution to Defendant The Thi Cung. b. Attorneys’ fees in the amount of $156,262.59 to the Referee’s current counsel, Mashian Law Group, APC. This amount shall be surcharged against the distribution to Defendant Khiem Cung. c. Attorneys’ fees in the amount of $73,718.42 to the Referee’s former counsel, Shafron & Krammer, LLP. $19,209.50 of this amount shall be surcharged against the distribution to Defendant Kha Cung. $19,209.50 of this amount shall be surcharged against the distribution to Defendant The Thi Cung. The remaining $35,299.42 shall be surcharged against the distribution to Defendant Khiem Cung.
3. The Court hereby instructs the Referee to pay the attorneys’ fees incurred by Plaintiff for the common benefit of the parties, pursuant to Code Civ. Proc. §874.010, subd. (a): a. Common Benefit Attorneys’ fees in the amount of $185,413.12 to Plaintiff’s counsel, Shafron & Krammer, LLP. This amount shall be surcharged against the distribution to Defendant Khiem Cung.
4. The Court hereby instructs the Referee to distribute the remaining proceeds, depending on whether any appeals are filed, and, in particular, directs the Referee to: a. If an appeal is filed, retain all proceeds until otherwise ordered. b. On the sooner of the date all Parties waive their right to an appeal in writing or the deadline to file an appeal expires without an appeal having been filed, the Referee shall distribute the remaining proceeds as follows: i. If any Party is to receive a negative distribution, that amount shall be deducted equally from the distribution owed to the remaining Parties. ii.
Plaintiff Khanh Cung to receive 74.5% iii. Defendant Khiem Tuan Cung to receive 0.0% iv. Defendant Kha Tuan Cung to receive 10.7% v. Defendant The Thi Cung to receive 14.8% 5. The Court shall retain jurisdiction to provide for the disposition of any funds remaining after the conclusion of any appeals and other proceedings, including but not limited to instructing the Referee to use funds to pay for further legal fees or distribute the funds to the parties; and
6. The Referee shall be discharged and relieved on any further obligations upon distribution of all the funds.
The referee shall lodge a modified proposed order consistent with the above instructions.
The referee shall provide notice of this ruling.
8. First American Title Insurance Company vs. Yarbrough
25-01486497
Motion for Summary Judgment and/or Adjudication
Plaintiff First American Title Insurance Company’s motion for summary judgment / adjudication is DENIED. (Code Civ. Proc., § 437c [authorizing motion].)
Moving party’s request for judicial notice is GRANTED, limited to the fact of recordation, but not the truth of the contents of the recorded documents. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265 [judicial notice of recorded documents]; Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117 [“the fact a court may take judicial notice of a recorded deed, or similar document, does not mean it may take judicial notice of factual matters stated therein”].)
First, moving party has not met its initial burden on the instant motion, as it relies on a theory not pled in its Complaint. (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250 [pleadings “set the boundaries of the issues to be resolved at summary judgment”]; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253 [summary judgment motion cannot be resolved based on unpled theories]; Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663 [“Summary judgment cannot be granted on a ground not raised by the pleadings”]; Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648–649 [“Evidence offered on an unpleaded claim, theory, or defense is irrelevant because it is outside the scope of the pleadings;” citation omitted].)
Plaintiff’s Complaint alleges that it was damaged due to defendant Yarbrough providing an incorrect payoff demand to resolve a reverse mortgage deed of trust / lien against the subject property to the escrow holder, on which the escrow holder relied. (Complaint, ¶¶ 7 [“[t]he entity handling the escrow was given a payoff demand by Yarbrough, upon which it relied to attempt to pay off the reverse mortgage”], 8 [“Relying on the payoff demand provided by Yarbrough, $238,135.23 of the proceeds from the sale were transferred to the servicer for the