Opinion
A147782
05-30-2017
MICHAEL DEMARTINI et al., Cross-complainants and Respondents, v. TIMOTHY P. DEMARTINI et al., Cross-defendants and Appellants
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. CIV085235)
Again before us is the prolonged dispute involving the eight children of James DeMartini, Sr., and Thelma, and their respective spouses, who received bequests of real property in equal shares of James, Sr.'s and Thelma's fairly extensive real property holdings located in San Anselmo and in Nevada County. The parties are cross-complainants and respondents Michael and his wife Renate along with James C. and his wife Ruth, and cross-defendants and appellants Timothy and his wife Margie along with Daniel and his wife Linda, David and his wife Nancy, Mark and his wife Laurie, Jon and his wife Lynne, and Sally Humphreys and her husband Newell (the Timothy Group or Group). This is the third appeal filed in this matter following an interlocutory judgment of partition issued in 2011. In this appeal, the Timothy Group argues that the trial court abused its discretion in granting in part and denying in part their motion for an award of attorney fees and costs. We find no abuse of discretion and affirm.
For purposes of clarity and convenience we will refer to the parties, who are all members of the DeMartini family, individually by their first names. No disrespect is intended.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. Background
The background of this case is well-known to the parties and this court, and we need not recount it in great detail here. As we noted in our first opinion in this matter (DeMartini v. DeMartini (June 28, 2013, A133277 & A134749) [nonpub. opn.]) (DeMartini I), "[t]he litigation before us was initiated with two complaints filed on October 23, 2008, by [the Timothy Group]: one, for partition by sale of the San Anselmo property; the second, for preliminary and permanent injunction against Michael and Renate to prohibit any further use of funds to repair or improve the San Anselmo property. The temporary restraining order, issued in the case by stipulation, was subsequently dissolved, and the trial court denied the request for a preliminary injunction on the ground that plaintiffs failed to show a likelihood of success on the merits." (Id. at p. *3.) "Michael and Renate . . . subsequently filed a cross-complaint for partition against [the Timothy Group and James C. and Ruth]. In 20 separate causes of action the cross-complaint sought partition in kind of each of the parcels of real property jointly owned by the parties. The request of Michael and Renate for partition in kind of the property was ultimately joined by James C. and Ruth; [the Timothy Group] requested partition by sale of all of the parcels." (Ibid.)
In the consolidated appeals filed by Michael (DeMartini I) we affirmed the trial court's interlocutory judgment, which decreed that the numerous parcels left to the siblings should be partitioned in kind based on the partition plan put together by the Timothy Group and presented to the court on the last day of trial. We remanded for reconsideration of a portion of the judgment that credited one of the siblings (David) for improvements he had made to a building in which he operated his pharmacy business, to reflect his payment of below-market rent for many years. (DeMartini I, supra, A133277 & A134749, p. *9.)
When the trial court declined to readjust the parties' obligations on remand, Michael once again appealed and we affirmed. (DeMartini v. DeMartini (Mar. 4, 2015, A140389) [nonpub. opn.]) (DeMartini II).) Following Michael's second appeal, the siblings requested by three competing motions that the trial court apportion the attorney fees and other costs incurred in connection with the partition proceedings under Code of Civil Procedure sections 874.010 and 874.040. The Timothy Group requested an apportionment of over $1 million for its attorney fees and costs, while Michael and Renate requested apportionment of $363,568, and James C. and Ruth requested apportionment of $139,045.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
On September 11, 2015, the trial court filed a preliminary order on the parties' motions. The court determined that all three sets of parties were entitled to some amount of their attorney fees and costs. It structured its order by dividing into nine categories the fees and costs incurred during various phases of trial and posttrial matters, some of which the court ruled were apportionable and some of which were found not to be apportionable.
On January 20, 2016, the trial court filed its final order apportioning fees. The order generally reflects the protocols set forth in the September 11, 2015 order. The order designates the total apportionable costs as follows: (1) $830,243 for the Timothy Group, (2) $139,044 for James C. and Ruth, (3) $181,784 for Michael and Renate, and (4) $231,210 for Timothy's own out-of-pocket costs. Each of these four amounts were allocated in equal portions to each of the eight couples based on their ownership interests. The Timothy Group has appealed from this order. II. Determinations at Issue in This Appeal
The trial court determined that Michael and James C. had advocated identical positions and therefore ordered each of them to bear 50 percent of their own attorney fees and costs.
This appeal concerns only four of the trial court's cost determinations: (1) The ruling that the allocable fees and costs incurred by all parties prior to entry of the interlocutory partition judgment should be combined and apportioned evenly among the siblings; (2) the ruling with respect to Michael's posttrial motions and a lawsuit he filed in Nevada, in which the court directed that the fees and costs incurred by the Timothy Group should be divided among all the parties; (3) the ruling ordering all parties to bear their own costs with respect to Michael's appeals from the interlocutory judgment and related appellate matters; and (4) the ruling that all parties are to bear their own expenses associated with the fee motions.
DISCUSSION
I. Standards of Review
When we review an award of attorney fees, we generally begin with the premise the " 'experienced trial judge is the best judge of the value of professional services rendered in [her] court, and while [her] judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.' " (Serrano v. Priest (1977) 20 Cal.3d 25, 49, accord, Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) " ' " 'An order granting or denying an award of attorney fees is generally reviewed under an abuse of discretion standard of review; however, the "determination of whether the criteria for an award of attorney fees and costs have been met is a question of law." [Citations.]' " ' [Citation.] An issue of law concerning entitlement to attorney fees is reviewed de novo. [Citations.] 'When a trial court has resolved a disputed factual issue, an appellate court reviews the ruling according to the substantial evidence rule. The trial court's resolution of the factual issue must be affirmed if it is supported by substantial evidence. [Citation.] We look at the evidence in support of the trial court's finding, resolve all conflicts in favor of the respondent and indulge in all legitimate and reasonable inferences to uphold the finding.' " (Carpenter & Zuckerman, LLP v. Cohen (2011) 195 Cal.App.4th 373, 378.)
It is the burden of the party challenging the award to show the trial court abused her discretion. (Consumer Privacy Cases (2009) 175 Cal.App.4th 545, 556.) The fees approved by the court are presumed to be reasonable. (Ibid.)
The Timothy Group insists that this matter must be reviewed under the de novo standard of review. However, in partition actions, it is well settled that "[t]he standard of review on issues of attorney[] fees and costs is abuse of discretion. The trial court's decision will only be disturbed when there is no substantial evidence to support the trial court's findings or when there has been a miscarriage of justice. If the trial court has made no findings, the reviewing court will infer all findings necessary to support the judgment and then examine the record to see if the findings are based on substantial evidence." (Finney v. Gomez (2003) 111 Cal.App.4th 527, 545, fn. omitted (Finney).) Even so, we elect to consider the Timothy Group's contentions on their merits. We conclude the statutory interpretation advanced by the Group is devoid of legal support and we decline to adopt it. II. Fees Incurred or Paid "for the Common Benefit"
Section 874.010, subdivision (a), provides that the costs of partition include "[r]easonable attorney's fees incurred or paid by a party for the common benefit." (Italics added.) Section 874.040 provides: "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." (Italics added.)
The Timothy Group asserts that we must interpret the phrase "for the common benefit" because the Legislature has not provided guidance as to what the phase means. Advancing their own interpretation, the Group contends "for the common benefit" should be interpreted as applying to "those services and costs that have the triggering and main causative effect in bringing about the main result adopted by the trial court in a final interlocutory judgment on a property-by-property basis." Using this interpretation, the Timothy Group contends that Michael and James C. should have been required to pay a greater portion of the parties' costs because the trial court ultimately adopted the Group's proposed partition plan. The Group also argues that Michael and James C. are not entitled to offset any of their fees and costs because their actions did not produce a "common benefit."
A. Rules of Statutory Interpretation
"[T]he objective of statutory interpretation is to ascertain and effectuate legislative intent." (Burden v. Snowden (1992) 2 Cal.4th 556, 562.) To determine that intent, "[w]e begin with the language of the statute, giving the words their usual and ordinary meaning. [Citation.] The language must be construed 'in the context of the statute as a whole and the overall statutory scheme, and we give "significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose." ' " (Smith v. Superior Court (2006) 39 Cal.4th 77, 83.) "If the statutory terms are ambiguous, we may examine extrinsic sources, including the ostensible objects to be achieved and the legislative history. [Citation.] In such circumstances, we choose the construction that comports most closely with the Legislature's apparent intent, endeavoring to promote rather than defeat the statute's general purpose, and avoiding a construction that would lead to absurd consequences." (Ibid.) If the extrinsic sources fail to resolve the ambiguity, we "use reason, practicality and common sense to ascertain what best approximates the legislative intent." (Busse v. United PanAm Financial Corp. (2014) 222 Cal.App.4th 1028, 1038.)
B. General Principles Regarding Partition Actions
Preliminarily, we note the term "partition" refers to " 'the procedure for segregating and terminating common interests in the same parcel of property.' " (14859 Moorpark Homeowner's Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1404-1405.) The statutes governing partition are found at section 872.010 et seq. "[A]lthough the action of partition is of statutory origin in this state, it is nonetheless an equitable proceeding." (Elbert, Ltd. v. Federated Etc. Properties (1953) 120 Cal.App.2d 194, 200.)
C. Interpreting "for the Common Benefit"
Notably, the Timothy Group does not cite to any authority in support of their "triggering and main causative effect" interpretation of "for the common benefit." It is an alleged legal concept without case sponsorship in partition law. They merely describe two cases that do not discuss the meaning of the statutory language, one of which did not even involve a fee or cost claim. Instead, the Timothy Group appears to contend that the phrase "for the common benefit" is equivalent to the prevailing party standard that applies to actions brought under Civil Code section 1717, even going to the extent of describing the Group as "the clear victor" and Michael as "the clear loser" (along with James) in these proceedings.
Butte Creek Island Ranch v. Crim (1982) 136 Cal.App.3d 360.
Civil Code section 1717, subdivision (a) provides, in part: "In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs."
We are not the first court to consider the meaning of "for the common benefit" as it appears in these partition provisions. In Riley v. Turpin (1960) 53 Cal.2d 598, 602-603 (Riley), the Supreme Court addressed an argument similar to the argument the Timothy Group raises here. In Riley, the defendant had strongly resisted the plaintiff's ultimately successful attempts to partition real property. The plaintiff objected to incurring any allocation of the defendant's attorney fees, arguing that the services rendered by the opposing counsel "were for defendant's benefit alone and not for the common benefit." (Id. at p. 602.) The court disagreed, relying on two prior cases, Capuccio v. Caire (1929) 207 Cal. 200 and Capuccio v. Caire (1932) 215 Cal. 518.
The Supreme Court in Riley noted in the second Capuccio case it had stated that, under the predecessor to the current version of the statute, attorney fees could be allowed " 'for services rendered for the common benefit even in contested partition suits,' " pointing out the former statute contained an exception only in cases "where controversial litigation arises between some of the parties only (rather than among all parties), in which case the court may require the expense of such litigation to be paid by only the parties thereto." (Riley, supra, 53 Cal.2d at pp. 603-602.) The Riley court then affirmed the trial court's order that, similar to the order in the present case, had allocated all counsel fees in the same amount to each party, noting that the plaintiff and the defendant were the only parties to the partition litigation and all controversies were between themselves alone.
Section 874.040 was enacted in 1976 (Stats. 1976, ch. 73, § 6, p. 127), and was based upon former section 796. The former section provided, in relevant part: "The costs of partition, including reasonable counsel fees, expended by the plaintiff or either of the defendants, for the common benefit . . . must be paid by the parties respectively entitled to share in the lands divided, in proportion to their respective interests therein, and may be included and specified in the judgment. . . . When, however, litigation arises between some of the parties only, the Court may require the expense of such litigation to be paid by the parties thereto, or any of them." (Former § 796, enacted 1872; amended by Code Amends. 1873-1874, ch. 383, § 101, p. 326, italics added.) Notably, "[f]ormer section 796 did not include a general equitable exception to the rule that costs in a partition action must be apportioned among the parties in proportion to their interests in the property." (Lin v. Jeng (2012) 203 Cal.App.4th 1008, 1023 (Lin).)
Even though it concerned the prior version of the statute at issue here, Riley is instructive. As in this case, the plaintiff in Riley had urged that the services rendered by the defendant's attorney " 'were not equal in amount or value to those performed by plaintiff's attorney.' " The Supreme Court conceded this possibility; however, it deferred to the trial court's findings of fact. (Riley, supra, 53 Cal.2d at p. 603; see Randell v. Randell (1935) 4 Cal.2d 575, 582-583 ["In the absence of evidence on the question we cannot say the trial court abused its discretion in allowing $ 2,500 as fee for such services as were rendered by the plaintiffs' attorney for the common benefit of both parties in the division of the common property."].)
More recently, courts have observed: "What constitutes 'for the common benefit' is to be determined based on the facts and circumstances of each particular case. Typically reviewing courts have not found the fees and costs incurred in adjudicating contentious issues between parties to a partition to be 'for the common benefit.' In some instances, the reviewing court has inquired into whose interests were being protected by the services provided, whether the services contributed anything of benefit to the cotenants, or whether one party's counsel's services made the proceedings any more advantageous to the other party." (Finney, supra, 111 Cal.App.4th at pp. 548-549, fns. omitted.)
Also, in Lin, supra, 203 Cal.App.4th 1008, the Court of Appeal noted: "Because there was no general equitable exception in former section 796, challenges to attorney fee awards before that statute was replaced by section 874.040 focused on whether the challenged fees were expended for the common benefit, with parties objecting to awards of fees incurred by parties who contested matters that ultimately were resolved in favor of the objecting parties." (Lin, at p. 1024.) In Lin, the reviewing court held: "There is no ambiguity in the language of section 874.040. It simply states that the trial court must apportion the costs incurred in a partition action based upon either the parties' interests in the property, or equitable considerations. The statute's broad language does not limit the trial court's equitable discretion . . . ." (Lin, at p. 1025.) The court continued: "When a trial court makes a ruling based upon equitable considerations, the abuse of discretion standard applies on review of that ruling. [Citation.] In other words, the ruling must stand unless plaintiffs establish that the trial court exceeded the bounds of reason, resulting in a miscarriage of justice." (Ibid.)
While the Timothy Group relies heavily on Lin, the Lin court did not address the meaning of the term "for the common benefit," instead focusing on the equitable discretion conferred by section 874.040. We agree with the Lin court's apparent conclusion that the phrase "for the common benefit" in section 874.010 does not limit the trial court's equitable discretion to award fees and costs among the parties in light of the broad authority granted to the courts by section 874.040. As the Timothy Group itself contends, "section 874.010 must be read in light of section 874.040 . . . ."
If the Legislature had intended for the contractual prevailing party standards to apply to partition actions, it could have so stated. The fact that it did not suggests to us that fee requests brought in partition actions are properly determined on a case-by-case basis, with the trial court having broad discretion to apportion fees in accordance with principles of equity. In the present case, the trial judge, who was involved in this protracted proceeding for many years, was in the best position to determine whether the legal services utilized here served the interests of the partition process. The judge had been handling this dispute for years, interrupted only by several trips by the litigants to this court. It would be difficult to find a more experienced arbitrator of this particular dispute. Accordingly, we proceed to review the attorney fee and cost determinations made in this case under an abuse of discretion standard. III. The Trial Court Did Not Abuse Its Discretion
A. Fees and Costs Through Interlocutory Judgment Trial
In contesting the per-couple allocation of fees and costs incurred during the trial stage, the Timothy Group urges that Michael and James C. failed to confer a common benefit, claiming again that the two brothers' efforts did not constitute a "triggering and main causative effect" in bringing about the main result adopted by the trial court in the final interlocutory judgment. As noted above, we are not inclined to adopt the Group's characterization of the relevant statute. Regardless, the Timothy Group bases its claim of error on the fact that the court ultimately adopted the Group's division plan, while finding Michael's competing proposal to be "simply not equitable." In light of the entire history of this case, however, we conclude the court did not abuse its discretion in apportioning Michael's and James's attorney fees and costs, and in requiring all parties to pay their proportionate share of the Timothy Group's attorney fees and costs.
As Michael correctly notes, throughout the proceedings leading up to the interlocutory judgment, the Timothy Group advocated for the properties to be partitioned by sale, a plan that the trial court rejected as transparently "disingenuous." It was only on the last day of trial that the Timothy Group proposed a scheme including partition in kind. As we noted in DeMartini I: "Quite late in the trial proceedings, [the Timothy Group] suggested a different disposition: sale of the San Anselmo property and division of the proceeds, with partition in kind of all of the remaining parcels. David and Nancy would retain the pharmacy building on Catherine Lane, and the nearby Dorsey Drive property for parking. The remaining properties would be partitioned among the parties, with a payment from cross-defendants to cross-complainants of approximately $26,000 to equalize the division." (DeMartini I, supra, A133277 & A134749, p. *4.) This plan was ultimately adopted by the trial court.
The trial court stated on April 27, 2011, shortly before the Timothy Group made its partition proposal: "First of all, the only proposals I have are the proposals from Jim and Michael and their spouses that certain specified properties be awarded to them and that everything else be awarded to the remaining 12 parties to this litigation. The 12 only proposal I've heard is that the parties—or excuse me, that the Court exercise its discretion under the CCP to order everything sold. I mean everything. [¶] Am I to treat this as a baseball arbitration? Are those the only choices I have? Would anyone like to suggest any other permutations? If the Court goes off on a frolic of its own and orders partition in kind as to some properties perhaps, but not as to others, are the 12 agreeable to being left as tenants-in-common? Or am I supposed to specify who exactly gets what among them?"
That the Timothy Group waited until the last minute before abandoning its partition-by-sale strategy is significant. "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. Forced sales are strongly disfavored." (Richmond v. Dofflemyer (1980) 105 Cal.App.3d 745, 757.) Here, the trial court could have reasonably concluded that Michael's and James's litigation efforts caused the Timothy Group to modify its earlier stance that had advocated the sale of the properties, rather than partition. It thus can plausibly be argued that the attorney fees attributable to Michael and James up until the entry of the interlocutory judgment contributed in securing ownership interests for each of the siblings. On this record we cannot say the trial court abused its discretion in concluding that Michael's and James's litigation efforts conferred a common benefit.
The Timothy Group also argues that the trial court erred by including Michael's claim for his appraiser's costs in the final award because the declaration supporting the claim does not contain sufficient supporting facts. The court initially rejected this part of Michael's cost claim, but reversed itself as to the title reports and appraisal fees in its final January 20, 2016 order after determining that the fees and expenses he incurred for title reports and appraisals "aided the parties in arriving at the properties' fair market values and the percentage ownership interests, and thus these expenses served the common benefit."
The Timothy Group asserts that aiding in the resolution of an evidentiary issue pertaining to a stipulation as to a property's value is not a proper object of section 874.010. It also asserts Michael failed to prove these costs triggered and were the main causative effect in bringing about the final interlocutory judgment. This portion of the Group's opening brief fails to cite to any legal authority apart from section 874.010. We have already rejected the Group's interpretation of the phrase "for the common benefit." On this record, we find no abuse of discretion.
The Timothy Group also contends the trial court erred by requiring it to shoulder three-quarters of its own fees and costs for this stage of the proceedings. It faults the court for relying on the "mechanical alternative" (apportionment based on the parties' interests) rather than on principles of equity. In support of this argument, they cite to the "public condemnation" that the court inflicted in its "excoriation of Michael."
We find no abuse of discretion. We first note that in the court below, the Timothy Group argued that the opposing factions should each bear their own attorney fees and costs for this phase. We also observe that in its opening brief the Timothy Group fails to clarify that the disparaging comments made by the trial court were not directed at the interlocutory judgment phase, but instead were aimed at Michael's posttrial motions and his Nevada lawsuit. We address the costs and fees for that phase next.
In summary, our review of the September 11, 2015 and especially the January 20, 2016 orders regarding fees demonstrates thoughtful consideration of the fee issue under sections 874.010 and 874.040. The trial court was not obligated to make specific findings designating and segregating the various items it included within the feature of "common benefit." (Capuccio v. Caire, supra, 215 Cal. at p. 530.) Yet the court did articulate her reasoning in a lengthy 24-page order.
B. Michael's Posttrial Motions and Nevada Lawsuit
In the portion of its order concerning Michael's posttrial motions and his Nevada lawsuit, the trial court considered various posttrial matters, including the finding that Michael was in contempt of court, as well as the proceedings that led to him and Renate being declared vexatious litigants. Michael and Renate had represented themselves during this phase and did not incur their own attorney fees for any of these matters. The Timothy Group requested that the court order Michael to pay all of its fees and costs for this phase (amounting to more than a half million dollars), arguing the Group was defending the partition judgment. The court rejected the request.
While the trial court agreed that "Michael's maneuverings were designed to frustrate the partition of the properties," the court concluded section 874.040 does not unambiguously declare a repudiation of the "American Rule," which requires each party to bear his own attorney fees unless otherwise permitted by law. The court agreed that a party who files frivolous motions in a partition action can equitably be denied the right to share his or her attorney fees with the other co-owners. However, it concluded the language of section 874.040 did not support the "radical change" proposed by the Timothy Group, which would force the losing party to pay the prevailing party's attorney fees in addition to its own.
The Timothy Group asserts that the trial court abused its discretion by "injecting the 'American Rule' standard . . . into the section 874.010 and 874.040 standards . . . ." In our view, the trial court was merely explaining its interpretation of the section. In any event, the Timothy Group does not cite to any legal authority in support of its claim. An issue must be supported by authority and reasoned legal argument or it will be deemed forfeited. (Cal. Rules of Court, rule 8.204(a)(1)(B).)
Michael did pay the attorney fees and costs incurred by all sides in connection with the contempt proceedings. --------
Consistent with our discussion above, we agree with the trial court that if the Legislature had intended to compel an unsuccessful party to shoulder all of the attorney fees generated in a partition action, it could have so stated. Instead, the allocation of fees and costs is left to the trial court's sound discretion. Our experience with this case convinces us that the lower court has taken a commendably even-handed and considered approach to this complicated and extremely contentious matter. While we are not unsympathetic to the Timothy Group's position, we cannot say that the court abused its discretion in its apportionment of the attorney fees and costs incurred for this phase of the litigation.
C. Attorney Fees and Costs for Appellate Proceedings
The Timothy Group next claims the trial court erred in disallowing the attorney fees and costs incurred in the appellate proceedings prosecuted by Michael. It acknowledges that the court adopted the Group's alternate proposal, agreed to by Michael and James, "that all parties bear their own costs and fees for this phase." On appeal, the Timothy Group concedes it made this alternative suggestion; however, "the alternative was only in the context of its principal argument by which the Timothy Group advocated for the recovery of such fees and costs."
Because the Timothy Group proposed the alternative adopted by the trial court, and did not raise any argument on this point in the hearing held after the court filed its preliminary ruling, we conclude it is estopped from challenging the court's decision. Under the doctrine of invited error, a party is prevented "from asserting an alleged error as grounds for reversal when the party through its own conduct induced the commission of the error." (County of Los Angeles v. Southern Cal. Edison Co. (2003) 112 Cal.App.4th 1108, 1118.) We therefore find no abuse of discretion.
D. Attorney Fees and Costs Regarding Motion for Fees
Finally, the Timothy Group asserts the trial court erred in disallowing attorney fees and costs incurred in preparing its motion for fees. In its September 11, 2015 order, the court ruled: "Since the fee motions are not costs incurred in the partition action for the common benefit of the owners, but are for the individual benefit of the parties, they are not apportionable under the statute, and all parties are to bear their own expenses associated with the fee motions." The Timothy Group does not provide us with any legal authority to support its claim of error. It also appears that it did not request such fees in its memorandum of points and authorities filed on June 10, 2015.
" 'A judgment or order of the lower court is presumed correct.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Further, "[w]here a point is merely asserted . . . without any . . . authority for the proposition, it is deemed to be without foundation and requires no discussion by the reviewing court." (Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647.) Because the Timothy Group has provided no authority to support its contention, we presume that the trial court did not err in concluding all parties are to bear their own expenses associated with the fee motions.
DISPOSTION
The order apportioning attorney fees and costs is affirmed. The parties are to bear their own costs on appeal.
/s/_________
Dondero, J. We concur: /s/_________
Margulies, Acting P. J. /s/_________
Banke, J.