Opinion
NOT TO BE PUBLISHED
Sonoma County, Super. Ct. No. SCV-236503
Jones, P.J.
Appellants contend the trial court erred when it ordered the partition in kind of real property located in rural Sonoma County. We conclude the court did not abuse its discretion and will affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
We have addressed this dispute on two prior occasions. We will set forth the underlying facts briefly.
The property at issue is located near Valley Ford in rural Sonoma County. It was owned originally by Chester and Marie Greppi who bequeathed it to their daughters, Dorothy Bordessa and Barbara Lanker. Subsequently, Bordessa and Lanker each transferred their respective interests to a trust. Appellants and respondents herein are trustees of those trusts.
Many of the parties to this appeal share the same last names. For clarity, we will sometimes refer to them by their first names.
The property is relatively large, (approximately 500 acres) and is situated between Highway 1 and the Estero Americano near the Sonoma coast. The terrain generally is grassy and includes a riparian creek that runs in a north/south direction from Highway 1 to the Estero. The property is accessed by a dirt and gravel road that runs along the western side of the creek. A large wooden barn, implement shed, and milk barn are located at the end of the road.
Barbara Lanker and her husband Fritz leased the Valley Ford property from her parents 1991 in order to raise cattle there. At the time of the lease, Barbara’s son Ken had been living on the property since 1985 following a divorce. Barbara’s father Chester was glad to have Ken living on the property so he could keep an eye on things and to discourage trespassers. Ken lived on the property from 1985 until 2005 when he was forced to move because the septic system had failed.
While Ken was living on the property, he and his grandfather made a number of improvements such as adding lights, pouring concrete, and completing an addition to one of the buildings. As is common with ranchers in the area, they did not get permits to complete the improvements.
In April 2007, the Bordessas filed an amended complaint seeking partition of the property by sale. In response the Lankers filed a cross-complaint seeking partition of the property in kind.
The case proceeded to a court trial where, by stipulation, the sole issue was whether the court should order partition by sale or in kind. The Bordessas took the position that partition in kind would be so costly, time consuming, and unpredictable, that partition by sale should be ordered. The Lankers, by contrast, took the position that partition in kind was preferable. Each side supported their position with testimony from numerous experts including appraisers, surveyors, geologists, septic experts, water experts, and land use planners. The parties also presented evidence about what they intended to do with the property. If the Bordessas prevailed and partition by sale was ordered, they intended to purchase the entire property. They would then demolish the structures located on the property and build a vacation home on the bluffs overlooking the Estero. If partition in kind was ordered, the Bordessas would still build a vacation home. They would prefer to receive the western portion because it has superior access to the Estero. If the Lankers prevailed and partition in kind was ordered, they would continue to run cattle on the property. The Lankers do not have a preference as to which half they would receive, but they would like to receive the buildings that they currently are using in their cattle operation.
The trial court considering this evidence issued an interlocutory judgment ordering that the property be partitioned in kind based on a proposal that was contained in one of the exhibits (exh. 122) that had been admitted. The court ruled that the Bordessas would be awarded the western portion of the property and the Lankers would received the eastern portion.
The court did not attempt to set forth the precise boundaries of the property that each of the parties would receive. Instead, the court appointed a referee and granted him the power to “do all things necessary to carry out the orders of this court and make a report to the court, including the size and configuration of the parcels to be received by each of the parties; provisions for easements to be created in connection with the partition, any road improvements, installation of utilities or other improvements required as part of the partition; and any compensatory adjustment or payments needed to make the division of the property fair and equitable.” To ensure the referee had the information he needed to carry out the tasks he had been assigned, the court ordered him to consult with the experts who had participated in the case “including, but not limited to, geologists, land use planners, waste management consultants, well drillers, real estate agents, and anyone else deemed necessary to answer any question in arriving at an equitable and feasible division of the property.”
The court found that the “creation of two roughly equivalent parcels along the general lines suggested . . . in Exhibit 122 is feasible and equitable and that awarding the Bordessas the westerly parcel and the Lankers the easterly parcel is equitable. However, the exact location and size of those two parcels and, therefore, the location of the boundary between them cannot be established at this time. The court will need to review the report of the referee to be appointed after his consultation with the surveyors and appraisers previously hired by the parties and completion of the survey needed to more accurately establish the number of acres and their value before deciding these issues and the amount, if any, of any compensatory payment that needs to be made by one side to the other.”
The court rejected the Bordessa’s argument that partition in kind was impractical: “The court is mindful of the fact that the Court of Appeal indicated that it needed to [be determined] ‘whether the costs, delays, and uncertainties involved in dividing the property would render a partition in kind less equitable.’ The court finds that [the Bordessas] did not meet their burden of proving that to be the case. [¶] [The Bordessas] produced evidence of many obstacles allegedly standing in the way of dividing their property in kind, costs which might be encountered, and delay which [could] result from a partition in kind under the circumstances of this case. After having carefully reviewed all the evidence, the court is simply not persuaded that the burden on the parties in moving forward with a partition in kind is as insurmountable as plaintiffs suggest . . . .”
Subsequently, the Bordessas filed a motion to reopen the case so they could present additional evidence about exhibit 122 upon which the court had relied. The trial court denied that request.
The Bordessas then filed appeals challenging the trial court’s interlocutory judgment and the court’s decision to deny their request to reopen the evidence.
II. DISCUSSION
A. The Applicable Law
We set forth the governing law as described in one of our prior opinions in this case:
“A co-owner with an equal undivided interest in property has a right to demand partition of the property. ([Code of Civil Procedure] § 872.710, subd. (b).) The court initially determines the interests of the parties in the property, the interests of lienholders, the plaintiff’s right to partition, and the manner of partition. (§§ 872.610-872.630, 872.710, 872.810-872.830, 873.910-873.930.) The court then issues an interlocutory judgment. (§ 872.720.) The actual partition of the property is then carried out with the assistance of a referee. (§§ 873.010, subd. (a), 873.210, 873.290, 873.510, 873.750, 873.790, 873.810.) The partition action concludes with entry of a judgment of partition. (§§ 873.290, 873.960, 874.240.)
Unless otherwise indicated, all further section references will be to the Code of Civil Procedure.
“The manner of partition may be in kind or by sale. (§§ 873.210-873.850.) Partition in kind is favored. (Butte Creek Island Ranch v. Crim (Butte Creek) (1982) 136 Cal.App.3d 360, 365.) The court may order partition by sale of all or part of the property only if ‘under the circumstances, sale and division of the proceeds would be more equitable than division of the property.’ (§§ 872.820-872.830.) The party seeking partition by sale bears the burden of proving it would be more equitable than partition in kind. (Butte Creek, at p. 366.)
“Factors relevant to whether partition by sale is more equitable than partition in kind include (1) whether partition in kind is permissible under applicable subdivision laws (§ 872.040); (2) whether the property can be divided into parcels of roughly equal value, such that any differences in value could be balanced by way of compensatory payments (Butte Creek, supra, 136 Cal.App.3d at p. 366); and (3) whether division of the property would substantially diminish the value of each party’s interest (id. atp. 367).”
With this background, we turn to the specific arguments that have been advanced.
B. Burden of Proof
The trial court ruled the Bordessas had failed to carry their burden of proving that partition in kind would be less equitable than partition by sale. The Bordessas now argue the trial court erred when it placed the burden of proof on them. According to the Bordessas, “the burden of proof to show that partition by sale is more equitable is shifted, when the cost, delay and compliance with a variety of land use laws creates material uncertainties and the other party has not demonstrated equitable division in kind is easy and effective.”
The Bordessas have not cited any authority that holds the burden of proof shifts as they suggest, and the authority they do cite does not so hold. The Bordessas rely first on language taken from Butte Creek where the appellate court reversed the trial court’s decision to order partition by sale. Among other things, the Butte Creek court stated in a footnote “[t]he evidence is overwhelming that parcel B may be easily and effectively divided into two subparcels of equal or approximately equal value.” (Butte Creek, supra, 136 Cal.App.3d at p. 367, fn. 1, italics added.) Relying on the language we have italicized, the Bordessas cite Butte Creek as holding that if a parcel cannot be “easily and effectively divided” the burden shifts. This is a non sequitur. While evidence that property can be “easily and effectively” divided supports partition in kind, the Butte Creek court did not state that such evidence was required nor did it say anything about the burden shifting if such evidence is not present. Language in an opinion is not authority for issues that are not considered. (Fogarty v. City of Chico (2007) 148 Cal.App.4th 537, 542, fn. 8.)
Alternately, the Bordessas rely on language contained in the legislative history of the partition statutes that is quoted in Butte Creek. Specifically, the Butte Creek court noted that in 1976, the Law Revision Commission recommended the statutory preference for division in kind be revised. Whereas the prior standard stated that division by sale was permitted only when physical division would cause “great prejudice,” the new standard stated that division by sale was permitted when it was “more equitable.” (Butte Creek, supra, 136 Cal.App.3d at p. 365.) The Butte Creek court set forth the Commission’s justification for the proposed change, “‘[i]n many modern transactions, 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, particularly in the case of urban property. [¶] The Commission recommends that partition by physical division be required unless sale would be “more equitable.” This new standard would in effect preserve the traditional preference for physical division while broadening the use of partition by sale.’” (Ibid., italics added, quoting 13 Cal. Law Revision Com. Rep., Reports Recommendations and Studies (1975-1976) pp. 413-414.)
Focusing on the “highly impractical” language we have italicized, the Bordessas argue that the burden of proof shifts when division in kind is shown to be “highly impractical.” However, the Law Revision Commission did not state that the burden shifts where there is evidence of impracticality. It said nothing about the burden of proof at all. Again, the language the Bordessas cite does not support the argument they advance. Indeed, to the extent we can ascertain the Commission’s intent, it supports precisely the opposite conclusion. The Commission cited evidence of impracticality when recommending the change to the new “more equitable” standard. But the Commission then recognized that even under the new standard, the “traditional preference for physical division” would in effect be preserved. (Butte Creek, supra, 136 Cal.App.3d at p. 365.) Since the party seeking partition by sale bears the burden of proof under the traditional standard, (id. at p. 366) it is reasonable to conclude the Commission also intended to preserve that allocation of the burden of proof under the new standard. Well established case law confirms this conclusion. (Ibid.)
We conclude the court did not err when it allocated the burden of proof.
Having reached this conclusion, we can summarily reject several derivative arguments the Bordessas have advanced. For example, the Bordessas argue the Lankers failed to carry their burden to present “reasonably reliable evidence” that would allow the court to conclude that there is an “easy and effective plan” that would be “more ‘equitable’” than a partition by sale. Under the authority we have cited, the Bordessas, not the Lankers, bore that burden. (Butte Creek, supra, 136 Cal.App.3d at p. 366.)
Similarly, the Bordessas complain that the Lankers “had two years to develop reasonably reliable information to serve as the basis to meaningfully assess the costs and delays of development. They had two years to conduct surveys, measure acreage, draw . . . boundaries . . . hold ‘pre-application’ meetings with the County and other agencies to get specific guidance on reasonable development plans, and prepare cost estimates and budgets for a development proposal, with meaningful appraisals. . . . They did none of this.” While the Lankers did not accomplish the tasks the Bordessas have identified, they did not have the obligation to do so. As the parties seeking partition by sale, the Bordessas had the burden of proving that partition by sale was the more equitable way to proceed. (Butte Creek, supra, 136 Cal.App.3d at p. 366.)
We conclude the trial court correctly allocated the burden of proof.
C. Coastal Zone Permits
The property at issue is located in the coastal zone. The Bordessas now argue the trial court committed legal error because it failed to consider whether it would be possible to obtain a permit from the California Coastal Commission or the local Board of Zoning Adjustments before obtaining a partition in kind. While the trial court did not consider those issues, the reason for the omission is apparent. As the Bordessas concede, they never asked the court to consider whether it would be necessary to obtain a permit from the Coastal Commission or the local Board of Zoning Adjustments before a partition. Having failed to raise the issue in the court below, the Bordessas have forfeited the right to raise the issue on appeal. (Feduniak v. California Costal Com. (2007) 148 Cal.App.4th 1346, 1381.)
Having reached this conclusion, we also deny the Bordessa’s motion filed on February 2, 2009, that asks us to take judicial notice of documents from the California Coastal Commission that allegedly would support their argument on this point.
D. Lot Line Adjustment
The trial court recognized that in order to divide the property into two parcels of approximately equal value, it would be necessary to adjust the boundaries of historic parcels that exist on the property by obtaining lot line adjustments from Sonoma County. Because the property is located in the coastal zone, a permit would be required. In its statement of decision, the trial court said the evidence supported the conclusion that the required permit could be obtained, and that the Bordessas “did not meet their burden of proving that this would be an obstacle to obtaining a lot line adjustment in this case.”
The Bordessas now challenge this finding arguing the trial court erred when it placed on them the burden of showing that the need to obtain a permit would be an obstacle to development. We disagree. As we have stated, the party seeking partition by sale has the burden of proving that method of division would be more equitable. (Butte Creek, supra, 136 Cal.App.3d at p. 366.) It was entirely appropriate for the court to place on the Bordessas the burden of proving that need to obtain a permit would be an obstacle to a lot line adjustment.
The Bordessas also challenge the court’s finding that the required permit could be obtained. However, substantial evidence supports the court’s conclusion. The evidence shows that the owners of the ranch located next to the property at issue were able to obtain a similar lot line adjustment. As the court stated, “The fact that the Cerini property, abutting the subject property, obtained a lot line adjustment leads to a reasonable inference that such a permit will be obtained in this case as well.”
E. Historic Parcels
The evidence at trial established that the property at issue historically had been divided into three parcels that the parties described ACC 1, ACC 2 and ACC 3. The testimony indicated ACC 1 and ACC 3 clearly were legal parcels that had been created by historic deeds. The validity of ACC 2 was not as certain because it was “fragment” parcel that had not been described specifically in an historic deed. Two experts testified that Sonoma County had, in the past, declined to recognize fragment parcels such as ACC 2.
The term ACC is an acronym for “administrative certificate of compliance.” It refers to a certificate that is issued by the county to recognize a parcel of property that was created by grant deed before modern land use ordinances were adopted. By statute, those historic parcels can be recognized even though they do not comply with the current statutes. (See Gov. Code, § 66412.6, subd. (a)).
The trial court in its statement of decision ordered the parties not to seek approval of all three historic ACC parcels: “the court finds that the parties should seek approval of only two ACC parcels, that they should not seek separate approval of ACC 2, that ACC 2 should be combined with ACC 3, if possible, and ACC 1 if it is not possible to combine ACCs 2 and 3.” The court explained the reason for its decision as follows: “if ACC 1 and ACC 3 were recognized by the county and ACC 2 were attached to one or the other of them . . . a [lot line adjustment] could then be obtained in order to create two parcels that are much closer in size and more equivalent in value than the ACC parcels in their present configuration. In order to create two parcels of roughly equivalent value, there is no need to obtain recognition of ACC 2. Based on the testimony of the experts who testified about prior difficulties in obtaining recognition of fragment parcels, it is likely that seeking recognition [of] ACC 2 will delay the process and may prove to be unsuccessful.”
The Bordessas now argue that the court erred when it ordered the parties not to seek recognition of ACC 2. They rely on section 873.240 that states: “Where real property consists of more than one distinct lot or parcel, the property shall be divided by such lots or parcels without other internal division to the extent that it can be done without material injury to the rights of the parties.”
We reject the argument for two reasons. First, section 873.240 sets forth a statutory preference that property be divided “without other internal division.” Failing to recognize ACC 2 would not cause other “internal division” of the property at issue. It would instead result in the consolidation of the historic parcels at issue.
Second, to the extent the court’s actions could be construed as causing “internal division” of the property, that act is not statutorily precluded. The statute says internal division should be avoided “to the extent that it can be done without material injury to the rights of the parties.” (§ 873.240.) Here, recognizing ACC 2 would cause material injury to the parties. As the trial court stated, it might not be possible to recognize ACC 2 and trying to do so would delay the partition process. Furthermore, if ACC 2 was recognized as a separate parcel, it would be much more difficult to add it to either ACC 1 or 3 and to create two parcels that are relatively close in size and value. We conclude the statutory preference against internal parcel division was overcome.
The precise size of ACCs 1, 2 and 3 is not clear. Exhibit 101 states that ACC 1 is 329.03 acres, ACC 2 is 45.28 acres, and ACC 3 is 128.34 acres. If ACC 2 is separately recognized, it would be difficult, if not impossible, to add it to either ACC 1 or 3 and to come up with two parcels that are approximately equal.
The Bordessas also argue that if ACC 2 is not recognized, its value as a separately developable lot would be destroyed. This argument assumes ACC 2 could be separately developed. The testimony from the experts the court cited places that premise in serious doubt. Because ACC 2 is a fragment parcel, it is not at all clear that Sonoma County would be willing to recognize it. The Bordessa’s argument on this point lacks an adequate foundation.
F. CEQA Issues
In its statement of decision, the trial court discussed whether the need to comply with the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) was an impediment to partition: “the Bordessas have raised the question of whether the requirements of [CEQA] will impact the division of this property or its subsequent development in such a way that the court should deny partition in kind. Once again, the plaintiffs have failed to meet their burden of proof. While they have raised an issue, they have not introduced any evidence to indicate that the issue raised by them is likely to be resolved in an manner that will make division in kind impossible or less equitable than division by sale. The presence of potential wetlands on the property is one such example. Plaintiffs raise the possibility of the existence of wetlands on the property but did not establish that there are actually any conditions that would deem [them] to be wetlands under applicable standards. More importantly, the land use planners who testified in the case indicated that if any such wetlands were found to exist, that would simply trigger setback requirements which would have to be met. Given the size of the property and the relatively small areas in which there might be wetlands, this is not a factor that indicates the property cannot be divided in kind or that it would be less equitable to do so than to order it to be sold.”
The Bordessas now argue that the trial court erred when it “put the burden on [them] to show certainty that CEQA would be invoked and once invoked that CEQA would make the division of the yet to be determined parcel configurations ‘impossible.’” However, as we have stated repeatedly, the trial court correctly placed on the Bordessas the burden of proving that meeting the requirements of CEQA would make division by sale more equitable. (Butte Creek, supra, 136 Cal.App.3d at p. 366.) The Bordessas have cited no persuasive authority to the contrary.
G. Access Issues
In its statement of decision, the trial court addressed the Bordessa’s argument that the costs of developing access to the property made division in kind impractical: “Plaintiffs also argue that the cost of developing access for an additional parcel will be over $350,000, which will be comprised of a new bridge and road across the creek from [the] driveway on ACC 1 to the east side of the property and/or a new road to the easterly portion of the property from Highway 1. However, an expense of this magnitude for additional access will not necessarily be required. Again, the approach to division shown on Exhibit 122, but with shared access over the existing driveway until the area just north of the existing shop would not result [in] the scope of improvements on which plaintiffs base their estimate. The necessity of any modification to the existing driveway and the cost of any required modification was not established.”
The Bordessas now argue the court erred when evaluating the access issues. We decline to address this argument on procedural grounds. While the Bordessas contend the trial court erred, they have not cited any authority to support their argument. The issue is forfeited. (Roden v. AmerisourceBergen Corp. (2007) 155 Cal.App.4th 1548, 1575-1576 (Roden).)
H. Valuation Issues
The Bordessas contend that a series of “valuation issues” support the conclusion that partition by sale is preferable. Specifically, they argue that appraisals are only valid for a limited period of time and are uncertain, that acreage on the property is not uniform in value, that the east and west halves of the property are not uniform, that using the property to raise cattle “no longer makes economic sense,” and that partition in kind is a difficult process.
Again, we reject all these points on procedural grounds. While the Bordessas contend the trial court erred, they do not cite any authority, and accordingly we have no legal arguments to address. The issues are forfeited. (Roden, supra, 155 Cal.App.4th at pp. 1575-1576.)
I. Request to Reopen the Evidence
During the defense case, the Lankers presented testimony from a licensed land surveyor named Ray Carlson. During Carlson’s testimony, the Lanker’s offered exhibit 122 as an example of one of the many partition options that were available to the court. The court admitted the exhibit over the Bordessa’s objection “for the illustrative purpose” of showing the available partition options.
After the parties presented their evidence, the trial court issued a tentative decision. It ruled the property should be divided in kind and that the approach set forth in exhibit 122 “shall be followed as closely as feasible.”
Subsequently, the Bordessas filed a motion that asked the court to reopen the evidence so they could address exhibit 122 more fully. The trial court denied the request.
The Bordessas now argue the trial court erred when it denied their request to reopen and to present additional evidence about exhibit 122.
The trial court is granted broad discretion to determine whether it is appropriate to reopen the evidence. (Rosenfeld, Meyer & Susman v. Cohen (1987) 191 Cal.App.3d 1035, 1052.) On appeal we will reverse the trial court’s decision only where the trial court abused its discretion. (Id. at p. 1053.) When two or more inferences can reasonably be deduced from the facts, we have no authority to substitute our decision for that of the trial court. (Walker v. Superior Court (1991) 53 Cal.3d 257, 272.)
Here, exhibit 122 was prepared by Carlson and was presented during the Lanker’s defense case as an example of one of the ways the court could partition the property. Subsequently, the court used exhibit 122 for precisely that purpose: to partition the property. The Bordessas had ample opportunity to cross-examine Carlson about the exhibit and could have presented whatever contrary evidence they deemed necessary during the rebuttal portion of the trial. Having failed to seize the opportunity when it was available, the court was not required to provide the Bordessas a second chance by reopening the evidence. We conclude the court did not abuse its discretion. (Rosenfeld, Meyer & Susman v. Cohen, supra, 191 Cal.App.3d at p. 1052.)
The Bordessas also argue the court erred when it based its decision on exhibit 122. Again, the argument is forfeited because the Bordessas have not cited any legal authority to support it. (Roden, supra, 155 Cal.App.4th at pp. 1575-1576.)
III. DISPOSITION
The judgment and posttrial order are affirmed.
We concur: Simons, J., Needham, J.