Filed 8/20/18 American Commercial Equities Three, LLC v. Herttua CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

AMERICAN COMMERCIAL EQUITIES THREE, LLC,

Plaintiff and Respondent,

v.

RITA HERTTUA,

Defendant and Appellant;

CAL-WEST EQUITIES, INC.,

Claimant and Respondent.

D071713

(Super. Ct. No. 37-2009-00101309- CU-BC-CTL)

APPEAL from postjudgment orders of the Superior Court of San Diego County, Joan M. Lewis, Judge. Affirmed in part, dismissed in part.

Mirch Law Firm, Kevin J. Mirch, and Marie C. Mirch for Defendant and Appellant.

Callahan, Little & Sullivan and Timothy J. Sullivan for Claimant and Respondent.

No appearance for Plaintiff and Respondent.

Code of Civil Procedure section 724.110 allows a judgment debtor to demand that the judgment creditor acknowledge a partial satisfaction of the judgment; and, if the creditor fails to comply, the debtor may apply to the court by noticed motion for an order compelling compliance with the demand. In the present case, in postjudgment proceedings initiated under section 724.110 in the trial court, judgment debtor Rita Herttua sought orders: compelling Cal West Equities, Inc. (Cal West), the assignee of the judgment creditor, to account for all funds received in satisfaction of the judgment; directing the clerk of the court to enter a full satisfaction of the judgment; requiring Cal West to pay to Herttua all funds received in excess of the judgment; or, alternatively, determining how much of the judgment has been satisfied after applying a credit in partial satisfaction “as an exercise of the Court’s equitable discretion.” The court denied Herttua’s motion (January 2017 Order).

Herttua appeals from 11 postjudgment entries in the register of actions, leading up to and including the January 2017 Order. Because we lack jurisdiction to consider nine of the 11 entries, we will dismiss the appeal from these documents. Because Herttua does not present any argument for a reversal of an order denying a stay of execution on the judgment, we will affirm that order. Finally, because Herttua has not met her burden of establishing reversible error in the denial of her motion, we will affirm the January 2017 Order. In doing so, we will assume, without deciding, that section 724.110 authorizes the relief Herttua sought in her motion and will conclude as follows: that substantial evidence supports the trial court’s ruling as to the amount of the judgment that has been satisfied; that the trial court did not abuse its discretion in refusing to apply a credit to the judgment; and that the trial court properly interpreted and applied the relevant statutes.

I.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Judgment

In the underlying complaint, American Commercial Equities Three, LLC (ACE), sued Herttua and Apache Traders, Inc. (Apache) (together Defendants), alleging four causes of action. In the first three causes of action, ACE sought money damages from Defendants for breaches of three separate commercial leases for suites located at 2425 San Diego Avenue (aka 2415 San Diego Avenue), as follows: at least $538,000 for breach of the lease for suite 101; at least $444,000 for breach of the lease for suite 106; and at least $180,000 for breach of the lease for suite 107. In a fourth cause of action, ACE alleged a common count for an open book account, seeking damages of at least $1,162,000, which is the sum of the damages alleged in the three prior causes of action.

Before ACE filed the underlying breach of contract action, ACE had obtained unlawful detainer judgments, terminating each of the three tenancies. In one of the unlawful detainer actions, the court also had awarded ACE $36,876. In postjudgment proceedings, ACE recovered possession of the three suites.

Pursuant to arbitration provisions in the three leases, ACE and Defendants arbitrated both ACE’s breach of lease claims against Defendants and what ultimately became Defendants’ crossclaims and defenses against ACE. In July 2011, the arbitrator issued a final award in favor of ACE and against Defendants in the amount of $1,115,829.

In August 2011, the superior court confirmed the arbitration award and filed a judgment in favor of ACE and against Defendants in the amount of $1,156,643, as follows: $1,115,829 in principal (i.e., the amount of the arbitration award); $38,214 in interest (i.e., postaward and prejudgment); and $2,600 in attorney fees. Neither Herttua nor Apache appealed from the judgment.

B. Collection Efforts

Prior to entry of the judgment in the breach of lease case, in satisfaction of the $36,876 judgment from one of the unlawful detainer actions, ACE obtained a writ of execution for the sale of the real property located at 1405 Coker Way, El Cajon, California. In May 2010, the property was sold to a third-party bidder for $130,000, and after payment of all liens and expenses, the Sheriff held the excess proceeds.

Meanwhile, in the underlying breach of lease case, ACE obtained a right to attach order and writs of attachment with regard to specified property of Herttua—including any excess proceeds remaining from the sale of the 1405 Coker Way property. Pursuant to a writ of attachment, the Sheriff attached $111,436 in excess proceeds from the sale of the 1405 Coker Way property by way of a June 2010 book levy. The Sheriff, not ACE, held those attached funds until the court entered a judgment to which they could be applied—which did not occur until more than a year later.

In the breach of lease case, based on the August 2011 $1,156,643 judgment, in October 2011 the court issued a writ of execution in the amount of $1,156,668 ($1,156,643 judgment plus a $25 fee).

Pursuant to the writ of execution, in November 2011, in partial satisfaction of the judgment, by way of book levy (see fn. 4), the Sheriff transferred to ACE the $111,436 in attached excess proceeds from the sale of 1405 Coker Way.

In further satisfaction of the underlying judgment, in April 2012, the trial court authorized the sale of the real property located at 1437 Coker Way, El Cajon, California. The Sheriff sold the property and pursuant to the writ of execution paid ACE $191,188 in May 2013.

In May 2013, the Sheriff prepared his return on the levy on the writ of execution, reporting that ACE had been paid $302,624—$111,436 from the attached funds (i.e., the excess proceeds) from the sale of 1405 Coker Way, plus $191,188 from the proceeds of the sale of 1437 Coker Way.

In further satisfaction of the underlying judgment, in July 2015, the trial court authorized the sale of the real property located at 9560 Fuerte Drive, La Mesa, California.

Before the sale could take place, in January 2016, ACE assigned to Cal West the judgment in the breach of lease case, including the writ of execution on the judgment and the right to collect all sums due under the judgment. Following delays, in September 2016, the Sheriff sold the 9560 Fuerte Drive property for $814,500, and on the date of the sale Cal West credited $814,500 to the outstanding judgment.

In a memorandum of costs after judgment (§ 685.070)—in which Cal West claimed no costs, but acknowledged $1,117,100 in credits and declared total interest of $543,255—Cal West attached a complete accounting of all funds received and applied in partial satisfaction of the judgment through October 20, 2016.

C. Defendants’ Postjudgment Motion for an Accounting and for Determination of Satisfaction of Judgment

In December 2016, Defendants filed a motion, seeking “an order compelling Judgment Creditor[ ] to account for all funds received through third parties or enforcement of the judgment, and for the Court to order the court clerk to enter satisfaction of the judgment and order judgment creditor to return all funds paid in excess of the judgment to Rita Herttua. Alternatively, Defendants request the Court apply a credit in partial satisfaction of the judgment as an exercise of the Court’s equitable discretion, and determine the amount of satisfaction of judgment.” [Sic.]

Defendants brought their motion under section 724.110, which provides that, following a proper demand by a judgment debtor for an acknowledgment of partial satisfaction of judgment, the judgment debtor “may apply to the court on noticed motion for an order requiring the judgment creditor to comply with the demand. . . . If the court determines that the judgment has been partially satisfied and that the judgment creditor has not complied with the demand, the court shall make an order determining the amount of the partial satisfaction and may make an order requiring the judgment creditor to comply with the demand.”

In support of their motion, Defendants filed a memorandum of points and authorities, evidence, and a request for judicial notice.

Cal West filed an opposition, setting forth evidence in support of its position and argument as to what it considered erroneous factual assumptions made and legal positions taken by Defendants in support of their motion. In particular, Cal West included an accounting that was consistent with its October 2016 memorandum of costs after judgment that Cal West filed after the sale of the 9560 Fuerte Drive property; the only difference in the two documents was the additional interest that had accrued between October 20 and December 21, 2016.

Defendants filed a reply, in which they responded to many of the arguments raised in Cal West’s opposition, submitted additional evidence, emphasized the evidence in support of the motion, requested the court to take judicial notice of a ruling in a related action, and asserted evidentiary objections to some of the evidence Cal West submitted in support of its opposition.

Following oral argument, on January 6, 2017, the court denied Defendants’ motion, as reflected in the January 2017 Order. More specifically, the court ruled that Cal West properly accounted for the money received in enforcing the judgment. Further, in addition to responding to a few of Defendants’ specific arguments, the court ruled that Defendants had not shown they were entitled to a credit, granted Defendants’ requests for judicial notice, and overruled Defendants’ evidentiary objections.

Herttua identified and appealed from 11 postjudgment entries in the register of actions (ROA), including the January 2017 Order. Neither ACE nor Apache is a party to the appeal.

II.

DISCUSSION

Because the trial court’s postjudgment orders are ” ‘presumed correct,’ ” Herttua, as the appellant, has the burden of establishing reversible error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Herttua primarily contends that the superior court erred in denying her motion for an accounting and for determination of partial/full satisfaction of the judgment, as reflected in the January 2017 Order.

As we will explain at part II.B. post, the trial court did not err in ruling that Herttua did not meet her burden of establishing that Cal West failed to account properly; thus, we will affirm the January 2017 Order. First, however, we will address the other 10 documents that Herttua identified in her notice of appeal.

A. Only the January 2017 Order Is Properly Before the Court for a Decision on the Merits

In her notice of appeal, Herttua identified 11 postjudgment entries in the ROA—including pleadings, rulings, and orders. As we explain, Herttua properly appealed from only two of these entries, both orders, and by her briefing Herttua forfeited appellate review of one.

As applicable in this case, both of the orders granting ACE’s applications to sell the two real properties and the January 2017 Order are final appealable orders after judgment. (§ 904.1, subd. (a)(2).) The right to appeal from such an order includes the right to seek appellate review of any prior related nonappealable order. (§ 906; Johnson v. Alameda County Medical Center (2012) 205 Cal.App.4th 521, 531 [“Intermediate rulings . . . are reviewable on an appeal of the final judgment.”].)

At the outside, an aggrieved party must appeal no later than 180 days after entry of the order or judgment to be appealed. (Rule 8.104(a)(1)(C).) Without a timely notice of appeal, the appellate court has no jurisdiction to hear the appeal and must dismiss it. (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56 (Van Beurden).)

1. ROA ##129-131, 133; Application for Order for Sale of 1437 Coker Way

Based on the proceedings related to ACE’s application for an order for the sale of the 1437 Coker Way property, Herttua appealed from the following four documents: April 26, 2012 tentative ruling on the application (ROA #129); April 27, 2012 minute order granting the application (ROA #130); April 30, 2012 notice of ruling (ROA #131); and May 3, 2012 written order granting the application (ROA #133).

Thus, any appeal associated with the May 3, 2012 order authorizing the sale of the 1437 Coker Way Property was required to have been noticed no later than October 30, 2012—i.e., within 180 days after the order granting the application. (Rule 8.104(a)(1)(C).) Because Herttua noticed her appeal on January 11, 2017, we lack jurisdiction to consider, and thus dismiss Herttua’s appeal from these four documents. (Van Beurden, supra, 15 Cal.4th at p. 56.)

2. ROA ##158-161, 170; Application for Order for Sale of 9560 Fuerte Drive

Based on the proceedings related to ACE’s application for an order for the sale of the 9560 Fuerte Drive property, Herttua appealed from the following five documents: May 4, 2015 tentative ruling on the application (ROA #158); May 15, 2015 minute order granting the application (ROA #159); May 20, 2015 notice of ruling (ROA #160); July 2, 2015 order granting the application (ROA #161); and September 28, 2016 minute order denying Herttua’s ex parte application to stay further execution on the judgment pending a full accounting—including specifically the sale of the 9560 Fuerte Drive property (ROA #170).

Thus, any appeal associated with the May 20, 2015 order authorizing the sale of the 9560 Fuerte Drive Property was required to have been noticed no later than November 16, 2015—i.e., within 180 days after the order granting the application. (Rule 8.104(a)(1)(C).) Because Herttua noticed her appeal on January 11, 2017, we lack jurisdiction to review the first four documents and dismiss Herttua’s appeal from each of them. (Van Beurden, supra, 15 Cal.4th at p. 56.)

With regard to the fifth document—namely, the September 9, 2016 order denying Herttua’s application to stay further execution on the judgment—we have jurisdiction to review it. The order is final, and Herttua appealed within 180 days of its filing. However, because Herttua does not present any argument or authority related to this order, she has forfeited appellate review of any potential error. (Behr v. Redmond (2011) 193 Cal.App.4th 517, 538 (Behr) [failure to brief an issue on appeal “constitutes a waiver or abandonment of the issue”].) Accordingly, we affirm the September 9, 2016 order denying Herttua’s ex parte application to stay further execution on the judgment.

3. ROA ##178-179; Motion for Accounting and for Determination of Satisfaction of Judgment

Based on Herttua’s motion for an accounting and for determination of full/partial satisfaction of judgment, Herttua appealed from the following two documents: January 5, 2017 tentative ruling on the motion (ROA #178); and January 6, 2017 order denying the motion (ROA #179, previously identified as the January 2017 Order).

Although an appeal may be taken from certain orders made after a final appealable judgment (§ 904.1, subd. (a)(2); Solis v. Vallar (1999) 76 Cal.App.4th 710, 713), one requirement is that the postjudgment order itself be “sufficiently final.” (Barnes v. Litton Systems, Inc. (1994) 28 Cal.App.4th 681, 684, 685.) Stated differently, such a postjudgment order may not be “preliminary to later proceedings.” (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 656 (Lakin); see In re Marriage of Nassimi (2016) 3 Cal.App.5th 667, 679, fn. 19 [where written order indicated ” ‘that further proceedings must occur before the court determines whether and how the cost and liability . . . should be allocated,’ ” order not final].) Here, the January 5, 2017 tentative ruling is neither an order nor final; by its terms was “tentative” and contemplated a hearing, after which the court would issue an order ruling on the motion. Accordingly, we lack jurisdiction to review this document and dismiss Herttua’s appeal from it. (See Marriage of Nassimi, 3 Cal.App.5th at p. 679, fn. 19 [where written order not final, order not appealable; where appeal taken from a nonappealable order, appeal must be dismissed]; Daon Corp. v. Place Homeowners Assn. (1989) 207 Cal.App.3d 1449, 1457 [appeal from nonfinal order must be dismissed].)

We will now discuss the issues Herttua raises in her timely appeal from the January 2017 Order—a postjudgment appealable order.

B. Herttua Did Not Meet Her Burden of Establishing Reversible Error as to the Trial Court’s Ruling that Cal West Properly Accounted for the Funds Received in Partial Satisfaction of the Judgment

In October 2016, Herttua demanded that ACE “acknowledg[e] . . . full or partial satisfaction of the Judgment in the above-entitled cause.” In response, Cal West provided Herttua with an acknowledgment of partial satisfaction of judgment (on behalf of Cal West only) and filed and served a memorandum of costs after judgment, acknowledgment of credit, and declaration of accrued interest. Significantly, as an attachment to the memorandum, Cal West included a full accounting of every penny that it had credited in satisfaction of the judgment through October 20, 2016—the date of Cal West’s response to Herttua’s demand.

Additionally, in Cal West’s opposition to Herttua’s motion that resulted in the January 2017 Order, Cal West updated the October 2016 accounting. Cal West’s December 21, 2016 accounting was identical to the October 2016 accounting, except for the additional interest that had accrued and, accordingly, the new balance due on the judgment: original judgment ($1,156,643) + total interest on unpaid balance of judgment ($553,097) – total credits ($1,117,100) = amount of judgment unsatisfied ($592,640).

Thus, although Herttua sought an order requiring an accounting, in fact Cal West has provided two: one through October 20, 2016, in response to Herttua’s demand; and one through December 21, 2016, in response to Herttua’s motion. Now, on appeal, Herttua’s position is that “these figures [provided by Cal West] are not correct.” Very simply, Herttua does not want an accounting; she wants a different accounting.

Herttua contends that we should apply a de novo standard of review to the January 2017 Order “because there are mixed questions of law and fact,” and “legal issues predominate.” However, Herttua does not explain either what “mixed questions of law and fact” are presented or what the “legal issues” are that predominate. Rather, as in Jhaveri v. Teitelbaum (2009) 176 Cal.App.4th 740, 748, we will review for substantial evidence the trial court’s findings in support of the ultimate ruling(s) on the section 724.110 motion.

In reviewing the trial court’s factual findings for substantial evidence, we begin with the presumption that the record contains evidence to uphold every finding of fact, and the appellant has the burden to demonstrate there is no substantial evidence to support the findings under attack. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 (Foreman).) ” ‘When a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact.’ ” (Ibid.) We “may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to [the respondent] must be accepted as true and conflicting evidence must be disregarded[,] . . . ‘indulging every legitimate inference which may be drawn from the evidence in [the respondent’s] favor.’ ” (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 118.)

The testimony of a single witness, including that of a party, may be sufficient (In re Marriage of Mix (1975) 14 Cal.3d 604, 614; Evid. Code, § 411), whereas even uncontradicted evidence in favor of an appellant does not establish the fact for which the evidence was submitted (Foreman, supra, 3 Cal.3d at p. 890). In response to Herttua’s presentation on appeal, we emphasize that the issue is not whether there is evidence in the record to support a finding the appellant wishes had been made, but whether there is evidence in the record that, if believed, supports the finding actually made. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 874 (Bowers).)

Pursuant to the foregoing authorities, the testimony of Glen Segal, an attorney for judgment creditor ACE, and the Sheriff’s ledger contain substantial evidence of the amount of the proceeds from the sale of the 1405 Coker Way property and how the proceeds were applied to partially satisfy the judgment. The sale of the property generated $152,000—$22,000 from a deposit from a potential buyer who defaulted, and $130,000 from the actual sale of the property. The Sheriff then deducted the various costs associated with the sale and fully satisfied the unlawful detainer judgment. Pursuant to the writ of execution on the August 2011 judgment in the underlying breach of lease action, the Sheriff transferred the remaining $111,436—i.e., the “excess proceeds” from the sale of 1405 Coker Way that had been attached—from the ledger in the unlawful detainer action to the ledger for the satisfaction of the judgment in the underlying breach of lease action. A month later, in November 2011, the Sheriff paid ACE, through counsel, $111,424. Upon receipt, the $111,424 was applied in partial satisfaction of the underlying breach of lease judgment.

Segal’s testimony and the Sheriff’s ledger also provide substantial evidence of the amount of the proceeds from the sale of the 1437 Coker Way property and how the proceeds were applied to partially satisfy the judgment. Pursuant to the writ of execution on the August 2011 judgment in the underlying action and an order of the superior court, the property was sold in May 2013. The Sheriff’s ledger shows that, in May 2013, the Sheriff paid ACE, through counsel, the net proceeds of $191,176. Upon receipt, the $191,176 was applied in partial satisfaction of the underlying breach of lease judgment.

Finally, the testimony of Dan Townsend, President of Cal West, and the Sheriff’s deed contain substantial evidence of the amount of proceeds from the sale of the 9560 Fuerte Drive property and how the proceeds were applied to partially satisfy the judgment. In September 2016, the Sheriff sold the property for $814,500, and Cal West applied the entire proceeds to the judgment as of the date of the sale.

In summary, therefore, the substantial evidence in support of Cal West’s accounting in the underlying breach of lease action includes: an August 31, 2011 judgment of $1,156,643; plus postjudgment interest of $26,619 as of November 23, 2011; less $111,424 from the book levy of the attached excess funds from the sale of 1405 Coker Way, credited as of November 23, 2011; plus interest of $167,968 on the balance as of June 12, 2013; less $191,176 from the sale of 1437 Coker Way, credited as of June 12, 2013; plus interest of $106,014 on the balance as of June 17, 2014; plus interest of $239,321 on the balance as of September 29, 2016; less $814,500 from the sale of 9560 Fuerte Drive, credited as of September 29, 2016; plus interest of $13,176 on the balance as of December 21, 2106. As of December 21, 2016—the date on which Cal West filed its opposition to Herttua’s motion—the outstanding balance due on the judgment was $592,640.

In the trial court, Herttua presented the declaration of Marie Mirch, one of Herttua’s attorneys, and a spreadsheet prepared by Mirch in which she calculated interest on and applied credits to the underlying breach of lease judgment. According to Herttua, the judgment has been fully satisfied—and the judgment creditor has been overpaid $139,912—since September 2016 when the proceeds from the sale of 9560 Fuerte Drive were applied. Both the dollar amounts used and the calculations made are different in the Herttua and Cal West accountings.

We decline Herttua’s request that we review the evidence and calculations she submitted and determine that they, not Cal West’s evidence and calculations, are more accurate. That is the function of the trial court. Our job is limited to determining whether the record contains substantial evidence to support the findings that the trial court actually made. (Foreman, supra, 3 Cal.3d at p. 881.) We did just that in analyzing the evidence contained in the declarations of Segal and Townsend and the related exhibits described ante. Having found substantial evidence that supports the trial court’s findings, “it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.” (Bowers, supra, 150 Cal.App.3d at p. 874, original italics.)

Although we could end our opinion here, we will briefly respond to a number of Herttua’s specific objections to Cal West’s analysis and the trial court’s rulings.

1.

Herttua argues that the 1405 Coker Way property—which sold in 2010 pursuant to a writ of execution in one of the underlying unlawful detainer actions with $111,434 in excess proceeds attached and eventually applied to the breach of lease judgment—sold for $220,000, leaving approximately $185,000 in excess proceeds that should have been applied to the judgment. In support of her argument, Herttua cites to Segal’s March 2010 declaration testimony in support of ACE’s application for a right to attach order and writ of attachment for the excess proceeds.

However, the premise for Herttua’s argument is incorrect; the property sold for $130,000, not $220,000. In Segal’s December 2016 declaration in opposition to Herttua’s motion, Segal explained the $220,000 price and the March 2010 testimony as follows: “When the property went to sale on or about March 25, 2010, there was a bid of $220,000.00. . . . However, that sale did not close since the Buyer at the sale defaulted. [¶] The Sheriff re-noticed the sale of that property . . . . [¶] The real property at 1405 Coker Way . . . was then sold . . . on May 27, 2010, for a sales price of $130,000.00, not $220,000.00.”

2.

Herttua complains that, in a December 2014 letter to Herttua, ACE calculated ” ‘there is roughly $1.1 million outstanding on the judgment,’ ” but that in ACE’s accounting “[ACE did] not include the prejudgment proceeds from the 2010 writs of attachment.” In fact, in November 2011, in partial satisfaction of the judgment, by way of book levy (see fn. 4, ante), the Sheriff already had transferred to ACE the $111,436 in attached excess proceeds from the sale of the 1405 Coker Way property.

To the extent ACE’s December 2014 calculations were incorrect, December 2014 was the time to have brought up the issue with ACE—not two years later in a December 2016 motion under section 724.110 to which ACE was not a party. In any event, the issue is moot. The trial court here based its rulings on the evidence that Cal West presented at the January 2017 hearing, not on the figures in a December 2014 settlement letter; and, as we concluded ante, Cal West’s evidence was substantial and supported each of the court’s findings.

3.

Herttua argues that Cal West never accounted for what she describes as $3 million in “inventory” that ACE took when it regained possession of the three commercial properties for which unlawful detainer judgments were issued in favor of ACE.

However, because she did not provide a record reference to any evidence in the record that substantiates any facts related to an inventory—neither the existence of an inventory, the value of an inventory, the disposition of an inventory, nor the proceeds from the disposition of an inventory—Herttua has forfeited appellate review of this argument. (Fierro v. Landry’s Restaurant, Inc. (2018) 23 Cal.App.5th 325, 329, fn. 5 [” ‘unsworn averments in a memorandum of law prepared by counsel do not constitute evidence’ “]; McOwen, supra, 153 Cal.App.4th at p. 947 [appellate court disregards statements of fact unsupported by record references]; Stover, supra, 12 Cal.App.5th at p. 28 [argument based on unsupported facts forfeited].)

4.

Herttua contends that, in response to her motion, the trial court “should have ordered an accounting by ACE of the rents received on the properties that were the subject of the Herttua lease[s] until the lease[s] expired December 31, 2013.” (Italics added.) More specifically, Herttua argues that the actual amount of rent that ACE received from replacement tenant(s) during the remainder of the term(s) of the terminated lease(s) “should be applied toward the Judgment,” since the breach of lease judgment already includes monetary damages for lost future rents through the end of the leases.

Initially, we note that the trial court could not have ordered the accounting that Herttua requested from ACE, because Herttua did not provide notice of the motion to, and the resulting opportunity to be heard by, ACE.

In any event, the determination of whether Herttua is entitled to an offset for the rents ACE actually recovered, as opposed to the amount of lost future rent the arbitrator awarded, is an issue for the arbitrator, not the court. The superior court did not award money damages for lost future rents that might or might not be subject to an offset. The court merely confirmed an arbitration award in a specified amount, regardless of the basis of the arbitrator’s calculation of the award. Herttua’s argument conflates, by improperly failing to differentiate between, the arbitrator’s award and the court’s money judgment.

5.

Herttua argues that some or all of the interests in real property that were sold to satisfy the breach of lease judgment were owned by irrevocable trusts—not Herttua, the judgment debtor. According to Herttua, the properties had been owned by the “Herttua Family Trust,” and when one of the cosettlors of the trust died in August 1996, the real properties became property of irrevocable trust(s) as of the date of the cosettlor’s death. Therefore, Herttua continues, since the writ of execution on the judgment was only as to Herttua’s interest in the properties subject to the writ, “[t]here should have been a determination of the ownership of the trust assets between [Herttua’s] irrevocable share and [the deceased co-settlor’s] irrevocable share that went to his beneficiaries.”

As a matter of law, on two independent bases Herttua’s challenge to the sales of the real properties is time-barred.

First, Herttua did not appeal from either the May 2012 order authorizing the sale of 1437 Coker Way or the July 2015 order authorizing the sale of 9560 Fuerte Drive. Thus, each order became final within 180 days of its entry (rule 8.104(a)(1)(C)) and cannot be collaterally attacked years later in a December 2016 motion. (In re Matthew C. (1993) 6 Cal.4th 386, 393 [“If an order is appealable, however, and no timely appeal is taken therefrom, the issues determined by the order are res judicata.”].)

Second, unless property at an execution sale is purchased by the judgment creditor and an action to set aside the sale is commenced against the judgment creditor “within 90 days after the date of sale,” the execution sale is “absolute and may not be set aside for any reason.” (§ 701.680, subds. (c), (a); First Federal Bank of California v. Fegen (2005) 131 Cal.App.4th 798, 801.) Here, because Herttua did not attempt to seek any relief within 90 days of either sale, both sales are absolute and may not be set aside for any reason. (Id. at p. 801.)

6.

Finally, Herttua contends that she presented “valid objections” to Cal West’s evidence—in particular, to the Segal and Townsend declarations and related exhibits—and that the “court abused its discretion in not even considering or ruling on these valid objections.” This argument is frivolous, given that two lines above the judge’s signature on the January 2017 Order the court expressly ruled: “Judgment Debtor[‘s] evidentiary objections are overruled.” By failing to present any argument or authority regarding potential error in the court’s evidentiary ruling, Herttua forfeited appellate review of the ruling. (Behr, supra, 193 Cal.App.4th at p. 538.)

DISPOSITION

The January 2017 Order denying Herttua’s section 724.110 motion and the September 9, 2016 order denying Herttua’s ex parte application to stay execution on the judgment pending a full accounting are each affirmed. The appeal from the other nine documents is dismissed. In the interests of justice, the parties shall bear their own costs on appeal. (Rule 8.278(a)(5).)

IRION, J.

WE CONCUR:

O’ROURKE, Acting P. J.

DATO, J.