Filed 9/6/19 Green v. Green-Jordan CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

WALTER H. GREEN,

Plaintiff and Respondent,

v.

VIRNIECIA GREEN-JORDAN,

Defendant and Appellant.

E070721

(Super.Ct.No. RIC1704206)

OPINION

APPEAL from the Superior Court of Riverside County. Irma Poole Asberry and Craig Riemer, Judges. Affirmed.

Virniecia Green-Jordan, Defendant and Appellant in pro. per.

Lobb & Plewe and Kevin J. Abbott for Plaintiff and Respondent.

Walter Green and Virniecia Green-Jordan are brother and sister. Their father, George Green, owned a piece of real property, along with a mobile home on the real property. He held title to the real property in the form of a joint tenancy with Walter and Virniecia; thus, when he died, it went to them.

Walter filed this action to partition both the real property and the mobile home. After a bench trial, the trial court entered an interlocutory judgment ordering the real property partitioned by sale; it reserved all issues regarding the mobile home and the division of the proceeds of the sale.

Virniecia appeals. Her main contentions are that:

1. Walter did not serve his trial brief in a timely manner.

2. The trial court erred by proceeding even though a petition to probate the parties’ father’s will was pending.

3. The trial court erroneously relied on an appraisal submitted by Walter.

4. The trial court failed to determine Virniecia’s right to compensation for expenses of the real property.

5. The trial court erred by ordering partition by sale rather than partition in kind.

We find no error. Hence, we will affirm.

I

FACTUAL BACKGROUND

No witnesses testified at trial. Rather, some documents were admitted by stipulation; the trial court took judicial notice of others. These documents have not been transmitted to this court (see Cal. Rules of Court, rule 8.224) nor included in the appellant’s appendix (see Cal. Rules of Court, rule 8.124(b)).

This makes it hard for us to know what the evidence showed. By necessity, then, we rely on (1) facts agreed on by both sides, (2) facts admitted by Virniecia, and (3) the factual findings of the trial court, which Virniecia does not challenge.

The parties “are fighting about” a 2.46 acre parcel of real property in Perris. The parties’ father conveyed the real property to himself, Walter, and Virniecia as joint tenants.

In 2006, their father died. Thus, the real property passed by operation of law to Walter and Virniecia as joint tenants. Their father also left a will, naming Virniecia as executor, and leaving his estate to Walter and Virniecia in equal shares.

There was a mobile home right at the center of the real property. At the time of trial, title to the mobile home was in Virniecia’s name.

The state held a judgment lien on the real property, for services rendered to the parties’ father under Medi-Cal.

II

PROCEDURAL BACKGROUND

In 2017, Walter filed a complaint against Virniecia, asserting causes of action to quiet title to the mobile home, to partition the real property and the mobile home, and for breach of fiduciary duty, along with a common count.

In 2018, the trial court held a bench trial. At the end of the trial, it ruled that the real property should be partitioned by sale. Thereafter, it entered an interlocutory judgment finding that the parties owned the real property as joint tenants and ordering it partitioned by sale.

III

APPEALABILITY

“[A]n interlocutory judgment in an action for partition determining the rights and interests of the respective parties and directing partition to be made” is immediately appealable. (Code Civ. Proc., § 904.1, subd. (a)(9).)

As we will discuss in more detail below (see part VI.A, post), the trial court partitioned the real property but did not partition the mobile home. Our research has not revealed any case dealing with the appealability of an order partitioning some but not all of the property involved in a partition action. Nevertheless, under the plain meaning of the statute, the interlocutory judgment here did “determine[e] the rights and interests of the respective parties” and did “direct[] partition to be made,” and thus it is appealable.

IV

THE EFFECT OF VIRNIECIA’S FAILURE TO CITE THE RECORD

With scattered exceptions, none of the facts that Virniecia asserts in her briefs are cited to the record. In some of the instances when she does cite the record, she cites a memorandum of points and authorities that she filed after the trial, in support of a motion to vacate the interlocutory judgment. This is improper, both because the memorandum is not evidence (Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 767, fn. 8) and because it was not before the trial court when it ruled (In re Zeth S. (2003) 31 Cal.4th 396, 405).

An appellate brief must “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” (Cal. Rules of Court, rule 8.204(a)(1)(C).) “It is well-established that ‘“[i]f a party fails to support an argument with the necessary citations to the record, . . . the argument [will be] deemed to have been waived. [Citation.]”’ [Citation.]” (Conservatorship of Kevin A. (2015) 240 Cal.App.4th 1241, 1253.)

We recognize that Virniecia is in propria persona. But “‘[w]hen a litigant is appearing in propria persona, he [or she] is entitled to the same, but no greater, consideration than other litigants and attorneys [citations]. Further, the in propria persona litigant is held to the same restrictive rules of procedure as an attorney [citation].’ [Citations.]” (County of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1444.)

Nevertheless, we have bent over backward by reviewing the entire record independently. We will accept Virniecia’s factual representations, to the extent that we have found support for them in the record. Otherwise, however, we will disregard them.

V

THE TIMELINESS OF WALTER’S TRIAL BRIEF

Virniecia contends that Walter did not serve his trial brief in a timely manner.

A. Additional Factual and Procedural Background.

The case was set for trial on Friday, April 13, 2018. On that day, it was assigned to a department for trial, then adjourned to Monday, April 16, 2018.

Also on April 13, 2018, Walter served his trial brief on Virniecia by personal delivery and filed it with the trial court.

On April 16, at the outset of the trial, Virniecia filed a motion for a continuance. The written motion is not in the record. Apparently, however, it asserted that she needed time to obtain counsel.

In argument on the motion, Virniecia claimed she did not realize the litigation was “serious” until she received various “documents” from Walter’s counsel, on Friday, Saturday and/or Sunday. For example, she did not realize that Walter was seeking $90,000 in attorney fees until she received his trial brief.

The trial court denied a continuance.

B. Discussion.

1. Service of the trial brief.

Virniecia did not argue below that Walter’s trial brief was untimely. Hence, she forfeited this contention. “‘It is axiomatic that arguments not raised in the trial court are forfeited on appeal.’ [Citation.]” (Sander v. Superior Court (2018) 26 Cal.App.5th 651, 670.) “[A]ny other rule would permit a party to trifle with the courts. The party could deliberately stand by in silence and thereby permit the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable. [Citation.]” (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339.)

Even if not forfeited, this contention lacks merit. The only authority on which Virniecia relied in her brief is Local Rule 3401 (rule 3401) of the Riverside Superior Court. That rule does not set any deadline for filing a trial brief. It requires certain documents to be exchanged at least 14 days before trial, but a trial brief is not among them. (Rule 3401(2).) It also provides, “No trial document shall be filed prior to the trial date. Instead, all trial documents shall be filed on the first day of trial in the department to which the case has been assigned for trial.” (Rule 3401(9)(a).) It does requires that a copy of a trial brief be given to opposing counsel, but it does not specify when. (Rule 3401(9)(b)(viii).)

At oral argument, Virniecia also cited California Rules of Court, rule 5.394(b). It provides: “The parties must serve the trial or hearing brief on all parties and file the brief with the court a minimum of 5 court days before the trial or long-cause hearing.” It applies, however, only to proceedings under the Family Code (Cal. Rules of Court, rule 5.2(c)), which this was not.

Virniecia mentions due process, but she does not actually say that due process was violated, or if so, how. She has forfeited any such contention by failing to support it with reasoned argument and citation of authority. An appellate brief must “support each point by argument and, if possible, by citation of authority . . . .” (Cal. Rules of Court, rule 8.204, (a)(1)(B).) “‘“We are not bound to develop appellants’ argument for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived.” [Citations.]’ [Citation.]” (Public Employment Relations Bd. v. Bellflower Unified School Dist. (2018) 29 Cal.App.5th 927, 939.)

In any event, we perceive no due process violation. “The touchstone of due process is fundamental fairness.” (Salas v. Cortez (1979) 24 Cal.3d 22, 27.) Virniecia has not shown that the assertedly belated service of the trial brief resulted in an unfair trial. She had already had the opportunity to glean Walter’s factual and legal contentions through discovery.

2. Failure to start the trial on April 13.

Virniecia also asserts that the trial court erred by failing to start the trial on April 13. She claims that she had arranged to have an expert witness appear that day.

Once again (see fn. 2, ante), she forfeited this contention by failing to raise it under a separate heading.

And once again, she also forfeited it by failing to raise it below. There is no indication that, when the trial court adjourned the trial from April 13 to April 16, she objected. Moreover, on April 16, when she requested a continuance, she did not say anything about needing it for an expert witness.

In any event, the record does not support Virniecia’s assertion regarding her expert witness. Also, she does not claim that her expert witness was not available to appear on April 16; thus, she cannot show that she was prejudiced. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; see Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.)

Virniecia briefly claims that “[neither] Appellant’s witness nor Appellant was notice[d] that the trial date had changed.” The record does not support this. She was present in court on April 13 when the trial court adjourned the trial to April 16. And, of course, she did show up on April 16 and did not assert lack of notice then.

3. Denial of a continuance.

In her opening brief, Virniecia does not contend that the trial court erred by denying her motion for a continuance.

In her reply brief, however, she says: “The Appellant begged the court to allow her to have time to obtain a licensed attorney to assist her . . . . The Judge refused to allow Appellant to seek legal counsel . . . . This is the reason that the Appellant filed the appeal . . . .”

If this is a separate claim of error, it comes too late. “We generally do not consider arguments raised for the first time in a reply brief. [Citation.]” (Raceway Ford Cases (2016) 2 Cal.5th 161, 178.)

Nevertheless, we conclude that the trial court did not abuse its discretion by finding no good cause for a continuance. If Virniecia wanted an attorney, she had had over a year since the complaint was filed in which to find one. (See A.G. v. C.S. (2016) 246 Cal.App.4th 1269, 1289 [continuance to obtain counsel was properly denied when party had already had 52 days to do so].) Her claim that she did not realize the case was “serious” until the Friday before trial was not credible.

VI

EFFECT OF VIRNIECIA’S LAST-MINUTE PROBATE FILING

Virniecia contends that the trial court erred by going forward even though she had filed a proceeding to probate her father’s will, and even though Walter had sued her individually, rather than as executor of her father’s estate.

A. Additional Factual and Procedural Background.

On the day of trial, Virniecia filed a petition to probate her father’s will. The petition listed, as assets of the estate, personal property worth $101,000.

The trial court noted that the real property had been in a joint tenancy, and thus the father’s interest in it had passed to Walter and Virniecia outside of probate. It concluded that the probate proceeding was irrelevant.

Later, however, it also ruled that it could not partition the mobile home, because, unlike the real property, the mobile home was not in joint tenancy, and it had not yet been distributed out of the father’s estate: “[Y]our defendant . . . is Ms. Green-Jordan as an individual, not in her capacity as executor of the estate. And if . . . the estate has not been probated and there has been no distribution out of the estate, then we don’t have the necessary party here, do we?”

B. Discussion.

1. Power to partition the real property.

Virniecia has forfeited this contention by failing to support it with reasoned argument and citation of authorities. (See part IV.B.1, ante.)

In particular, she does not explain how the trial court erred. Its explained its ruling plainly: It could partition the real property, despite the probate proceeding, and despite the failure to sue Virniecia in her capacity as executor, because the real property was not part of the father’s estate. Virniecia does not explain why this was wrong.

It was not. “[P]roceedings concerning the administration of a decedent’s estate are within the exclusive jurisdiction of the superior court probate department [citation].” (Ross & Cohen, Cal. Practice Guide: Probate (The Rutter Group 2019) ¶ 3:52.2, p. 3-17, italics omitted.) But “joint tenancy interests pass outside probate . . . .” (Id. at ¶ 2:120, p. 2-144.) Thus, they are not part of the probate estate (Estate of Bibb (2001) 87 Cal.App.4th 461, 469), and the decedent’s executor, when acting in that capacity, has no interest in them.

2. The presence of the mobile home.

In her reply brief, Virniecia argues that the trial court erred by ordering the real property partitioned before it had yet determined what should be done with the mobile home. She forfeited this contention by failing to raise it below. She additionally forfeited it by not raising it in her opening brief. We also note that this record falls short of proving that the mobile home would be an obstacle to partition as a practical matter. Walter’s counsel represented that it was about to be demolished due to code violations.

3. Notice to the public.

In a related contention, Virniecia argues that there was insufficient notice to the public.

a. Additional Factual and Procedural Background.

At one point, Walter’s counsel argued that Walter did not have to serve Virniecia in her capacity as executor, because he had named as defendants all unknown persons with an interest in the property, and he had served them by publication. The trial court examined the proof of service by publication; it pointed out that it was addressed exclusively to Virniecia individually, not to unknown persons.

b. Discussion.

Virniecia argues that, because the published summons did not name unknown persons and did not specify any particular property, there was insufficient notice of the future sale of the real property. In the words of Justice Rubin, “This argument mixes apples and giraffes.” (California Retail Portfolio Fund GmbH & Co. KG v. Hopkins Real Estate Group (2011) 193 Cal.App.4th 849, 859.) Notice of the action has nothing to do with notice of the (future) sale. Moreover, Code of Civil Procedure section 873.520, on which Virniecia relies, does not require any notice of sale. Quite the contrary — it expressly allows a private sale, which, by definition, does not require notice.

Virniecia refers to the summons again in the conclusion of her brief, but she does not appear to raise any other arguments regarding it. We deem all such arguments forfeited.

VII

“UNFAIR AND INEQUITABLE” APPRAISAL

Virniecia contends: “The Respondent’s attorney submitted to the Court at trial an appraisal which was unfair and inequitable.” According to Virniecia, Walter’s appraiser valued the property at $101,000, but it is really worth $275,264. She complains that she was not given an opportunity to obtain her own appraisal. She adds that the trial court should have appointed an appraiser.

None of this is supported by the record. The only mention of an appraisal occurred when Virniecia gave the trial court a copy of her newly filed probate petition. The trial court noted that it had listed as assets personal property worth $101,000 and no real property. This discussion followed:

“MS. GREEN-JORDAN: . . . [T]hat was the value — appraised value of the mobile.

“THE COURT: Of the mobile home or the land?

“MS. GREEN-JORDAN: The mobile home and the land. . . . I didn’t get the appraiser. . . . [¶] . . .

“THE COURT: . . . You mean the joint value of the personal and real property is $101,000?

“MS. GREEN-JORDAN: Yes, I do.”

Thus, it was Virniecia herself who provided the $101,000 figure to the court. She never asked for an opportunity to get her own appraisal nor for a court-appointed appraiser.

Most important, the appraisal played no part in the trial court’s ruling. As an alternative to a partition in kind or a partition by sale, it is possible to do a petition by appraisal, but only by stipulation of the parties. (Code Civ. Proc., § 873.910 et seq.) Here there was no such stipulation.

VIII

FAILURE TO DETERMINE VIRNIECIA’S “INTERESTS”

Virniecia contends that the trial court failed to determine the interests of the parties in the real property: “[T]he Court did determine that the parties were joint owners with 50% shares each. However, . . . the court did not itemize the cost that each party had put into the taxes, maintenance, and repairs to the property.”

A. Additional Factual and Procedural Background.

Virniecia claimed that she had paid taxes and other expenses related to the real property. Walter, too, claimed to have paid taxes. He also claimed that Virniecia had failed to maintain the property, had failed to properly screen tenants, and had collected rent from tenants.

Early on, the trial court told Virniecia: “[T]o the extent that there’s any expenses associated with [the real property] that you have paid, you get reimbursed before it’s split. To the extent that there’s any expenses that your brother may have paid, he gets reimbursed before the balance gets split.” “[I]f the joint ownership is admitted the only real issue here is going to be, [a]re there any expenses . . . or any benefits that need to be adjusted . . . before the proceeds of the sale are split in two?”

It therefore “bifurcate[d] issues of the right to partition and the manner of partition from everything else.” Virniecia did not object to this.

B. Discussion.

Virniecia forfeited this contention by failing to raise it below.

Separately and alternatively, the trial court did not err.

Code of Civil Procedure section 872.720 provides that: “If the court finds that the plaintiff is entitled to partition, it shall make an interlocutory judgment that determines the interests of the parties in the property and orders the partition of the property and, unless it is to be later determined, the manner of partition.”

“Interests,” within the meaning of Code of Civil Procedure section 872.720, refers to ownership interests. (Summers v. Superior Court (2018) 24 Cal.App.5th 138, 140, 143-144.) Joint tenants, by definition, have equal ownership interests. (Civ. Code, § 683, subd. (a).)

However, “[a] cotenant who has in good faith made improvements to the property necessary for its preservation is entitled to reimbursement in [a] partition action . . . .” (4 Miller & Starr, Cal. Real Estate (4th ed. 2018) § 11:19, p. 11-52.) “Every partition action includes a final accounting according to the principles of equity for both charges and credits upon each co-tenant’s interest. Credits include expenditures in excess of the co-tenant’s fractional share for necessary repairs, improvements that enhance the value of the property, taxes, payments of principal and interest on mortgages, and other liens, insurance for the common benefit, and protection and preservation of title. [Citations.]” (Wallace v. Daley (1990) 220 Cal.App.3d 1028, 1035-1036; see also Code Civ. Proc., § 872.140 [“The court may, in all [partition] cases, order allowance, accounting, contribution, or other compensatory adjustment among the parties according to the principles of equity.”].)

Accordingly, the trial court quite properly found that the parties had equal ownership interests and entered an interlocutory judgment for partition without ruling on the parties’ respective rights to reimbursements for expenses.

Finally — and again, separately and alternatively — the asserted error was not prejudicial. It is clear that the trial court intended to consider Virniecia’s claims for reimbursement in a later phase of trial. She has not shown that she was prejudiced by its failure to consider them in this phase.

IX

PARTITION BY SALE VERSUS PARTITION IN KIND

Virniecia contends that the trial court erred by ordering partition by sale rather than partition in kind.

A. Additional Factual and Procedural Background.

Virniecia told the trial court that Walter wanted to sell the property, but she did not. She argued, “[I]t is 2 1/2 acres. And it’s enough property there to be divided equally. I don’t have to sell my part. We can divide it.” She added that that was what their father would have wanted. Walter’s counsel objected to partition in kind.

The trial court asked:

“THE COURT: Do you have any estimate as to what the cost would be to do the engineering and the application to the county to get that lot split?

“MS. GREEN-JORDAN: No.”

It also asked if she had any evidence supporting partition in kind. She did not offer any.

Walter’s counsel then argued, “The property cannot be subdivided . . . because of the $64,000 judgment lien . . . .” The trial court asked Virniecia, “So if this property were to be divided in kind, how would you get the State to release this lien as to the property so that it could be conveyed?” She said she did not know, though she suggested, “I probably could get a fundraiser or something or somebody to sponsor or a person to invest.”

The trial court then ruled: “For all of the reasons that have been described here, the fact that the property is not currently subdivided or otherwise split, the fact that the defendant is unable to present any evidence as to either . . . the expense . . . involved in splitting that or the time involved in splitting that, the evidence that the mobile home is located on both halves of the property[,] and perhaps most importantly the fact that this very substantial lien on behalf of the State of California encumbers the entire property, the Court is going to order that this be partitioned by sale rather than by kind.”

B. Discussion.

The trial court may order partition by sale if it “determines that, under the circumstances, sale and division of the proceeds would be more equitable than division of the property.” (Code Civ. Proc., § 872.820, subd. (b).)

“As a rule, the law favors partition in kind, since this does not disturb the existing form of inheritance or compel a person to sell his property against his will.” (Richmond v. Dofflemyer (1980) 105 Cal.App.3d 745, 757.) “‘“[I]n many modern transactions, [however,] sale of the property is preferable to physical division since the value of the divided parcels frequently will not equal the value of the whole parcel before division. Moreover, physical division may be impossible due to zoning restrictions or may be highly impractical . . . .”’ [Citation.]” (Cummings v. Dessel (2017) 13 Cal.App.5th 589, 597.) “The burden of proof is on one endeavoring to force a sale as against unwilling co-owners to prove that the case is not a proper one for partition in kind. [Citations.]” (Richmond v. Dofflemyer, supra, 105 Cal.App.3d at p. 757.)

To split the real property, it would be necessary to comply with the Subdivision Map Act (Gov. Code, § 6410 et seq.) and Title 18 of the Perris Municipal Code. This would require the preparation and filing of a tentative parcel map and, unless waived (which would require a separate application), a final parcel map. (Gov. Code, § 66428, subd. (a); Perris Muni. Code, §§ 18.04.050, 18.16.010, 18.16.030, 18.16.040.) It would also require compliance with the California Environmental Quality Act (Pub. Res. Code, § 21000 et seq.). (See Perris Muni. Code, § 18.16.020(b).)

Even in the absence of evidence of specific dollar amounts, the trial court could properly find that this would be an expensive process. It would require payments to professionals to prepare the parcel map and to the city to process the parcel map. By way of illustration, we take judicial notice that the city requires a deposit of over $5,600 for a tentative residential parcel map and a deposit of over $1,200 for a final residential parcel map. (City of Perris, Fee Deposit Based Schedule, available at , as of Sept.3, 2019.)

That meant the real property would be substantially less valuable when partitioned in kind than when partitioned by sale — a recognized reason to order partition by sale. (Formosa Corp. v. Rogers (1951) 108 Cal.App.2d 397, 411.) Moreover, there was no apparent source of the necessary funds; Virniecia was not offering to pay, and it would be inequitable to require Walter to shoulder the whole amount.

In addition, however, the state had a $64,000 lien on the real property. This would not necessarily prevent subdividing it and conveying it to Walter and Virniecia. However, it would mean that, thereafter, the entire lien would encumber Virniecia’s half of the real property, and the entire lien would encumber Walter’s half of the real property. Walter could not sell his share without paying the entire $64,000. On the other hand, if the real property was sold, the $64,000 would come out of the total proceeds; the remainder would then be split between Virniecia and Walter. Thus, Walter would have to pay only $32,000. For this reason, too, partition in kind would be inequitable.

Virniecia’s main argument against partition by sale is that she had paid expenses in connection with the real property. This was irrelevant to the method of partition. As discussed (see part VII.B, ante), the trial court could give her credit for such expenses out of the proceeds of the sale.

She also argues that a sale of the real property would be contrary to the wishes of her deceased father. However, “partition as to concurrent interests in the property shall be as of right . . . .” (Code Civ. Proc., § 872.710, subd. (b), italics added.) As the trial court told her: “[I]t doesn’t matter what your father wanted. It doesn’t matter what your father hoped the two of you might be able to agree to. Either of you . . . have the right to get their half.”

At one point, Walter’s counsel said that Virniecia had sued the county to prevent the demolition of the motorhome and had lost. Virniecia now claims that the trial court erred by relying on this statement, because it was not true. However, there is no indication that the trial court did rely on it. In any event, it was completely irrelevant to the method of partition.

Finally, Virniecia asserts: “Prior to the May 29, 2018 [sic], no referenced [sic] was made to the fact that the partition could be in kind.” We cannot tell what this means. Virniecia was the one seeking partition in kind, so Walter did not need to give her notice of the possibility. Moreover, the issue was discussed and decided at trial on April 16, well before May 29 (which was the date of the hearing on a motion by Virniecia to vacate the interlocutory judgment).

 

X

DISPOSITION

The interlocutory judgment is affirmed. Walter is awarded costs on appeal against Virniecia.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

SLOUGH

J.

RAPHAEL

J.