Opinion
A156060
04-27-2020
STEVEN P. NELSON, JR., as Trustee, etc., et al., Plaintiffs and Respondents, v. JOHN RILEY II, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Sup. Ct. No. C17-01596) MEMORANDUM OPINION
We conclude this matter is proper for disposition by memorandum opinion in accordance with the California Standards of Judicial Administration, section 8.1.
Plaintiffs Steven P. Nelson, Jr., as Trustee of the Steven P. Nelson, Jr., Separate Property Trust, dated September 7, 2001, and Shirley W. Nelson, as Trustee of the Shirley W. Nelson Separate Property Trust, dated September 7, 2001 (the Nelsons) filed a complaint against defendant John Riley II for partition by sale of certain jointly owned property in Alamo, California. The trial court entered an interlocutory order granting the Nelsons' request to partition the property by sale. Riley appealed from this interlocutory order, arguing the trial court should have instead ordered a partition in kind.
Riley did not seek to stay the partition order by filing an undertaking. (See Code Civ. Proc., § 917.4.) Thus, while this appeal was pending, the subject property was sold. Riley also does not appear to have appealed from the trial court's order approving the sale of the property. The Nelsons subsequently filed a motion to dismiss the pending appeal as moot and requested sanctions. We agree the appeal is moot, but deny the request for sanctions.
On March 9, 2020, the Nelsons filed an unopposed request for judicial notice of two trial court orders (order confirming sale by the referee and order expunging lis pendens) and the referee's deed of sale. We grant the request. (Evid. Code, § 452, subds. (c), (d), (h).)
"A case is moot when the decision of the reviewing court can have no practical impact or provide the parties effectual relief." (City of Riverside v. Horspool (2014) 223 Cal.App.4th 670, 682.) First Federal Bank of California v. Fegen (2005) 131 Cal.App.4th 798, which involved an appeal from an order directing the sale of real property, is instructive. There, the Court of Appeal held an intervening sale of the property rendered the appeal moot because the appellant judgment debtor neither posted an undertaking staying enforcement of the order pursuant to Code of Civil Procedure section 917.4, nor filed a timely action challenging any purported irregularities in the sale. (First Federal Bank, at pp. 800-801.) Here, Riley failed to post an undertaking thus allowing the receiver to proceed with the sale, and Riley did not appeal from the trial court's order approving the sale of the property. Accordingly, Riley's appeal is moot because there is no relief we can grant.
We further note Riley does not argue in his opposition to the motion to dismiss that his appeal is not moot. (See City of Riverside v. Horspool, supra, 223 Cal.App.4th at p. 683 [issue forfeited when brief presents no legal argument or citation to authority].)
However, we deny the Nelsons' request for sanctions. "[A]n appeal should be held to be frivolous only when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit." (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) The Nelsons contend the appeal was brought for purposes of delay and cite to Riley's filing of a lis pendens to support that allegation. But the record does not suggest Riley sought to harass the Nelsons or delay an adverse judgment by way of his appeal. To the contrary, the trial court concluded Riley "had the procedural right to file his lis pendens" and did not consider Riley "to be acting without 'substantial justification.' " We concur for purposes of this request for sanctions.
Nor are we willing to conclude Riley's appeal was "totally and completely without merit" such that sanctions are warranted. Parties often argue on appeal that courts have abused their discretion by ordering one form of partition over another. (See, e.g., Richmond v. Dofflemyer (1980) 105 Cal.App.3d 745, 757 [arguing in part the trial court abused its discretion in ordering a partition in kind instead of a sale]; Butte Creek Island Ranch v. Crim (1982) 136 Cal.App.3d 360, 361 [asserting the trial court erred in ordering the sale of real property rather than dividing it in kind].) And, generally, the law favors partitions in kind. (Richmond, at p. 757.) Riley's challenge to the trial court's order of a partition by sale does not rise to the level of justifying sanctions. Accordingly, the Nelsons' request for sanctions is denied.
The Nelsons argue Riley's supplemental response to form interrogatories demonstrates the lack of merit. In the response at issue, Riley stated in part: "Defendant agrees that the Court has jurisdiction to adjudicate this matter and that partition by sale is the most equitable manner or [sic] dividing and distributing this property." However, the response also states an alternative to a sale of the property is "an agreed partition by appraisal" and "[t]he relationship between the parties has not deteriorated such that the absolute right to partition by sale is the only available remedy." We decline to find that response such a " 'clear and unequivocal admission[ ]' of fact" that it evidences a total lack of merit as to Riley's appeal and "could not be credibly contradicted or amended." (Ahn v. Kumho Tire U.S.A., Inc. (2014) 223 Cal.App.4th 133, 136.)
DISPOSITION
The appeal is dismissed. Plaintiffs may recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (5).)
/s/_________
Margulies, J. We concur: /s/_________
Humes, P. J. /s/_________
Sanchez, J.