Opinion
A167090
10-27-2023
XENA BENEDETTO, Plaintiff and Appellant, v. JASON WISCH as Trustee, etc., Defendant and Respondent.
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG20057092
RICHMAN, J.
BACKGROUND
One tenant-in-common sued the other tenant-in-common for partition, the upshot of which was that the subject property was sold, leaving over $267,000 in proceeds to be distributed. Following a brief court trial, the court issued a comprehensive ruling distributing $148,778.13 to one co-tenant and $118,808.12 to the other, a ruling that explained in detail the basis of the decision. Both co-tenants appeal, filing briefs that are hardly models of appellate advocacy: one brief is three and one-half pages long, and contains no statement of the facts in the dispute; the other contains no section entitled argument (or discussion), and no heading labeled argument. We conclude that neither appeal has merit. We do, however, modify the judgment based on the concession by counsel for one co-tenant that the judgment below resulted in a double recovery of $14,995, which amount should be credited to the other co-tenant.
Introduction, the Parties, and the General Setting
This case involves the property located at 2338 W. Avenue 133rd, San Leandro (property or subject property), a case that started with a March 2020 complaint for partition, and ended with the trial court's November 2022 ruling distributing the proceeds of the sale that ensued. The property was held by Xena (AKA Gabriella) Benedetto who was a 50 percent owner of the property, and The Living Trust of Zee Janko (the Janko trust), which held the other 50 percent. Jason Wisch is the trustee of the Janko Trust.
The dispute between that parties involved legal proceedings that predate the complaint here, as on February 13, 2020, following a "court trial," the court (the Honorable Frank Roesch) filed what Wisch calls the "foundational first [j]udgment." That judgment decreed the "title interests" between Benedetto and the Janko Trust, holding as follows:
The proceedings leading to the court trial are not in the record, but it apparently arose from a pleading by the Janko Trust alleging elder abuse.
"Judgment After Court Trial: Decree of Title Interests to 2338 W Avenue 133rd, San Leandro:
"The court decrees that Plaintiff Zee Janko Living Trust and Defendant Gabriela [Xena] Benedetto own legal title to 2338 W Avenue 133rd, in San Leandro, as tenants in common, and that any sale or other resolution of their joint ownership would be as equal co-owners, save and except that, the court allocates the amount of $14,995.00 to be paid to Benedetto as an equalization of contribution, as well as a sanctions award of $1,350.00."
Two weeks later came the complaint here.
The Proceedings Below
On March 4, 2020, Benedetto filed a complaint for "partition of real property," naming trustee Wisch as defendant.
On May 12, Wisch filed an answer and a cross-complaint.
According to the Register of Actions, Benedetto filed a motion for interlocutory judgment of partition. Wisch filed opposition. And on June 18, the trial Court (the Honorable Noel Wise) granted the motion, this minute order reflecting the proceedings and Judge Wise's holding:
"Cause called for Motion: June 18, 2020.
"Prior to the hearing, the Court issued a tentative ruling, which was not contested and was affirmed as set forth below.
"Plaintiff's Motion for Interlocutory Judgment of Partition is GRANTED, as follows.
"The Court orders that the real property that is the subject of this action be partitioned by sale, as agreed by both parties. The Court declines to appoint a referee to conduct the sale. Instead, as agreed by the parties, they shall accept the pending purchase offer of the subject property, and all sales proceeds shall be held in escrow by Fidelity National Title until further order of this Court. The Court will then determine distribution of sales proceeds upon a noticed motion filed by either or both of the parties.
"The Court will sign the proposed order submitted with Plaintiff's reply papers, modified to delete page 2:11-20. On page 2:21-24, the Court will insert 'All sales proceeds shall be held in escrow by Fidelity National Title until further order of this Court. The Court will then determine distribution of sales proceeds upon a noticed motion filed by either or both of the parties.' "
On August 4, Wisch filed a first amended cross-complaint. It was titled "For Slander of Title by 'Trustee's Deed'; Accounting for Rents, Debts and Taxes Paid Without Accounting," but actually alleged two causes of action, styled as "slander of title" and "accounting [and] contribution." Benedetto filed a demurrer. And on October 8, Judge Wise filed her order on that demurrer, sustaining the demurrer to the slander of title claim without leave to amend, and sustaining the demurrer to the accounting claim with leave to amend, but limited to alleging a "claim for contribution and adjustment as part of the subject property's partition sale."
Indicative of the inattention to detail that was to come, the order noted that the Court "observes that 'Code of Civil Procedure 872.850,' cited in the first amended cross-complaint does not exist."
On October 8, Wisch filed a second amended cross-complaint.
Benedetto filed a motion to amend the "interlocutory judgment," which motion is not in the record. What is there is that on December 17, Judge Wise granted Benedetto's motion to amend the interlocutory judgment of partition, substituting Jorge Mora as the buyer of the property. And her order further stated: "As discussed at the hearing of this motion, if Defendant [Wisch] has evidence that the subject property could have sold at a higher price than the $575,000 offered by Jorge Mora, Defendant may seek to charge some portion or all of that price differential against the sales proceeds to be recovered by [Benedetto] at such time as the Court determines the distribution of the net sales proceeds."
What, if anything, that occurred over the next 15 months or so is not in the record, except for the pleading by Fidelity National Trust Company (Fidelity), the escrow holder, which in May 2021, filed a complaint in interpleader. And, after it deposited the funds in court, Fidelity was dismissed and discharged.
While, as noted, the record does not reveal what transpired in 2021 or early 2022, what we glean from various filings by the court is that it included a June 21, 2022 order granting the parties "stipulation to conduct this matter 'by motion rather than by live testimony,' and directing the parties to file a JOINT statement of undisputed facts and list of exhibits the parties stipulate are admissible, and to format objections to evidence per CRC 3.1354," a stipulation and order, it would develop, with which the parties did not comply.
On September 1, 2022, the parties filed their respective briefs for the hearing on division of the proceeds of the sale of the property. The briefs were accompanied by declarations in claimed support of each party's position, and also objections to evidence.
The matter was apparently scheduled for a court trial on September 29, prior to which the Honorable Jenna Whitman issued a tentative ruling, a ruling that indicated her dismay that the parties had disregarded their duties and their commitments. That tentative ruling read in part as follows:
" RG20057092: Benedetto VS Wisch
"09/29/2022 Court Trial in Department 24
"Tentative Ruling
"Initially, the Court observes that the parties failed to comply with numerous aspects of the 6/21/2022 order, granting their stipulation to conduct this matter 'by Motion rather than by live testimony,' and directing the parties to file a JOINT statement of undisputed facts and list of exhibits the parties stipulate are admissible, and to format objections to evidence per CRC 3.1354.
"The parties did not submit a list of stipulated, undisputed facts or a list of exhibits which are stipulated to be admissible. Given the other issues with the briefing (see below) this greatly increases the Court's work in evaluating the parties' respective claims.
"Defendants' objections to evidence are totally noncompliant. While Plaintiff at least utilized the grid format articulated in CRC 3.1354, Plaintiff does not number its objections, such that the Court cannot easily convey to the parties its tentative rulings on evidentiary objections. Most importantly, the Court is inclined to sustain the objection to the Zukowski declaration, most importantly the compilation attached thereto, as there is no foundation for the underlying expenses and he expressly disclaims the accuracy of the underlying information. Plaintiff could have submitted a declaration authenticating evidence of the underlying expenses, but did not. The Court is inclined to overrule the objections to the Anguiano declaration and her exhibits. She is qualified to testify as to the marketability and fair market value of the subject property during the relevant time frame and has demonstrated personal knowledge of the underlying facts. The court is inclined to exclude Defendant's testimony regarding rents received by Plaintiff as lacking foundation and because the issue was waived by failing to address it in the opening brief.
"The parties are now requesting to present live testimony, although they previously submitted not to do so (see above). The fact that the Court reserved the right to order one or more declarants to submit to examination does not arrogate the same right to the parties. Further, the parties have not identified any witnesses, explained what credibility issues (or other good cause) requires testimony that could not be adequately presented through declarations. They have made no proffers with regard to expected areas of testimony, or provided any time estimates to the Court.
"Moreover, Defendant Janko Trust's opening brief does not clearly identify each of the credits or offsets Defendant believes it is entitled to. Some of the issues (e.g., as noted, rents allegedly received by Plaintiff) were not raised until reply. Trustee Jason Wisch's 8/31/2022 declaration does not authenticate many if not all of the attached exhibits, and in any event attaches the exhibits out of order. Beyond a fleeting citation to CCP 872.140, no party provides any citation to or explication of applicable law. Perhaps most importantly, neither party provides legal authority for their respective positions as to the date of valuation.
"Notwithstanding the numerous failures, outlined above, to comply with court orders and to submit admissible evidence, the Court is not inclined to continue the matter. This was the parties' chosen trial date (already continued once prior) and manner in which the parties elected to try the case.
"The parties may present oral argument as to any of the above issues. The Court will not permit live testimony absent a showing of good cause. (CRC 3.1306(a).)"
A virtual hearing was held at the conclusion of which Judge Whitman took the matter under submission. On November 28, Judge Whitman issued her "Ruling on Motion for Distribution of Funds; Judgment"-and quite a ruling it was, a comprehensive eight-page analysis and decision.
Judge Whitman's ruling began with a brief discussion of the factual and procedural background, included within which was that: "By order of 12/17/2020, the Court approved a sale of the Subject property to Jorge Mora, gave him two weeks to perform, and required the proceeds to be held in escrow or interpleaded with Court. Distribution of those proceeds was to be determined by motion. The order provided that if Defendant has evidence that the subject property could have sold at a higher price than the $575,000 offered by Jorge Mora, Defendant may seek to charge some portion or all of that price differential against the sales proceeds to be recovered by Plaintiff.
The footnote provided: "A stipulation and order for interlocutory judgment to be entered in this case was approved, but no such judgment was entered in this case. On 2/13/2020, a judgment (the 'Judgment') was entered in the Alameda County Superior Court, Case No. HG18931254, confirming interest in the Subject Property as stated above. The Judgment also provided that $14,995 plus $1,350 in sanctions against Zee Janko was to be paid to Benedetto out of the closing."
"Although Mora did not close escrow in two weeks, he was permitted to move into the property. He did finally complete the purchase, and escrow closed 5/18/2021, at an increased price of $608,000. The net proceeds that were deposited by Fidelity National Title and are now being held are $267,586.25. [Citation.]
"On 6/21/2022, the Court issued an order approving the parties' stipulation to have the matter heard by motion, setting agreed briefing and hearing dates. The Court appended additional orders governing the manner and timing of briefing, objections to evidence, etc. The parties did not comply with these orders. They did not submit a joint statement of undisputed facts or admissible exhibits. Nor did they submit their evidentiary objections in proper format. They changed their minds about relying exclusively on written testimony, without stating good cause (e.g., identifying particular issues which may turn on credibility) or submitting offers of proof. They also failed to diligently raise all issues in their opening briefs, introducing some new issues as late as reply. And finally, they provided little legal authority to guide the Court's decision-making process....."
Judge Whitman's ruling then set forth the "APPLICABLE LAW," beginning with this:
"The court may, in all cases, order allowance, accounting, contribution, or other compensatory adjustment among the parties according to the principles of equity. ([Code of Civil Procedure section] 872.140.)
"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. (Wallace v. Daley (1990) 220 Cal.App.3d 1028, 1035-[10]36 [citing California Code of Civil Procedure[,] § 872.140].)
"A co-tenant who has paid a debt or obligation for the benefit of the common property has a right to recover a proportionate share of the amount paid from the other co-tenant who has received the benefit of the payment, and the partition decree may provide that the latter's obligation will be discharged as a lien. (Rich v. Smith (1915) 26 Cal.App. 775; Ventre v. Tiscornia (1913) 23 Cal.App.4th 598.)"
There followed a brief comment about "EVIDENTIARY OBJECTIONS," which noted that "while Defendant's objection to John Zukoski's attempt to authenticate and support Plaintiff's expenses is well-taken, Defendant did not object to Plaintiff's declaration in which she avers under oath that she incurred the expenses as compiled on Exhibit D."
After all that came some four pages of "ARGUMENT AND ANALYSIS," which was detailed indeed, and from which we quote at length. It was as follows:
"Plaintiff seeks half of the sales proceeds, plus credit for expenses she allegedly paid related to the property-including for maintenance and necessary repairs, closing costs, property taxes, etc.-of $157,208.18.
"Defendant objects to Plaintiff's claim for a credit for expenses. Defendant seeks his half of the sales proceeds, plus the following: (1) a charge to Plaintiff for sale under market value (due to Mora's delay, occupancy which rendered property unmarketable, and alleged rise in market value by the time of the sale) per the Court's order of 12/17/2020; (2) credit for the 'allotment' quantified in Judge Roesch's 2/13/2022 order of $17,000 for Plaintiff's payments on Mr. Cooper (Nationstar) mortgage; (3) credit for rents received by Plaintiff from Patricia Estrada in the asserted amount of $69,000. Plaintiff objects to Defendant's demands.
"As to the date of valuation and fair value of the Subject Property, Defendant contends Plaintiff should be charged for orchestrating a below-market sale to Mora, and for Mora's delay in closing. The Court-approved sale price was $575,000; and the Court's 12/17/2020 order provided for a charge against Plaintiff's share if Defendant could show that the property could have sold for a higher price.
"The sale to Mora was delayed, and the parties apparently entered into extensions of time for Mora to purchase. On 3/3/2021, Judge Noel Wise issued a Case Management Order noting that Mora had not consummated the sale, but was living in the property, and ordering the property to be listed for sale immediately by Janella Anguiano and for Mora to cooperate. [Citation.] That order also states the 12/17/2020 order remains in effect. On 5/12/2021, the Court entered a further Case Management Order noting an anticipated closing by 5/19/2021. It is unclear what occurred in the interim, but apparently Anguiano did not list the property and Mora consummated his purchase shortly thereafter. The final sales price was $608,000.
"Anguiano, appointed by the Court in the event that the sale fell through, opines that the home could have sold for over $700,000 by the time escrow actually closed, and that Mora's residency there rendered the property virtually unmarketable. However, Defendant appears to have acquiesced in the belated sale to Mora, even after the Court's 3/3/2021 order to sell on the open market. Defendant failed to pursue available remedies.
"Under the circumstances, it does not seem fair, or consistent with the 12/17/2020 order, to utilize a May 2021 date of valuation. The order provided for either a sale to Mora, in which case proof of differential could be made by Defendant (given the language of the order, considering what the property 'could have sold' for) presumably utilizing values in or around the January 2020 ordered closing date)-or, failing that, a free-market sale. Further, Defendant apparently acquiesced to an extension, at least through February if not through May. Moreover, the values Anguiano provides for the property are generally in the mid-$600 range for the relevant period. This includes the $645,000 offer she 'easily' received in Dec[ember] 2020. [Citation.] And the Zillow estimate chart upon which she relies, which suggests that Zillow's valuation ('Zestimate') was in the $660,000 range in Jan[uary]-March 2021.
"Assuming a sale, as court ordered, during this time frame, the differential between the actual sale price of $608,000 and the actual value Dec[ember]2020-March 2021 is approximately $52,000, which will be charged to Plaintiff. (While additional costs were likely incurred due to Mora's delay in closing, which in equity would be chargeable to Plaintiff, no evidence of these costs was presented.)
"As to Plaintiff's request for credit for expenses paid, she is entitled to her proportional share (i.e., 50%) of costs she paid for the Subject Property, not their entirety. [Citations.] At the hearing, Plaintiff did not dispute this. Plaintiff submitted a declaration in which she affirms that her 'receipts and expenses' which were 'paid to keep and maintain the property' and should have been borne jointly by Plaintiff and Defendant. [Citation.] No evidentiary objection was filed to her declaration. The attached spreadsheet sets forth an itemized list of such expenses. While Defendant argues that the list lacks credibility, he does not provide any evidence supporting this challenge. Thus, Plaintiff is entitled to a credit of $78,640.
"As to rents received by Plaintiff, Defendant is entitled to his proportionate share, which he did not receive. The amount of rents paid is in dispute. Defendant presents no admissible evidence to support his figure. Plaintiff admits to the receipt of $56,000. Defendant is thus entitled to a credit of $28,000.
"SUMMARY OF CREDITS, CHARGES AND CALCULATIONS
"$16,345 credit to Plaintiff per Judgment in HG18931254
"$78,640 credit to Plaintiff for her proportionate (50%) share of expenses paid
"= credits to Plaintiff of $94,985
"$52,000 differential in sales price, charged to Plaintiff
$28,000 to Defendant for rents received by Plaintiff
"= credits to Defendant of $80,000 "
"Difference = $14,985 credit to Plaintiff
"$267,586.25 Interpleaded funds
"Plaintiff's share $148,778.13
"Defendant's share $118,808.12."
Judge Whitman's ruling concluded with this "JUDGMENT AND ORDER":
"Judgment is entered as follows:
"Of the funds interpleaded by Fidelity National Title Company and held by the Court, Plaintiff shall receive $148,778.13 and Defendant shall receive $118,808.12.
"The Clerk of Court to disburse the interpleaded funds as set forth above."
On January 26, 2023 Benedetto filed a notice of appeal.
According to Wisch's brief, the Janko Trust "filed post-trial motions to correct the Ruling, and Benedetto filed opposition papers. But before Janko Trust's post-Ruling motions could be heard, Benedetto filed this Appeal, so the trial Court dropped Janko Trust's post Ruling motions to correct the errors, and these errors are now subject to Respondent Janko Trusts' Cross Appeal," which cross-appeal was filed February 1.
DISCUSSION
Introduction and Some Observations About the Briefing
As indicated, the performance by the parties below and their apparent disregard of orders and rules-indeed, their own stipulation-led to criticism by at least two judicial officers. Apparently having learned little from their chastisement, the parties have filed briefs here that warrant their own criticism, and we begin with that criticism.
Benedetto's opening brief, the first of the briefs filed here, is a total of three and one-half pages, including a passage labeled "facts" that consists of barely over one-page, "facts" that say nothing about what was involved in the dispute, but rather sets forth in general terms some of the pleadings and rulings.
California Rules of Court, rule 8.204(a)(2)(C) provides that an appellant's opening brief shall "[p]rovide a summary of the significant facts ...." And the leading California appellate practice guide instructs about this: "Before addressing the legal issues, your brief should accurately and fairly state the critical facts (including the evidence), free of bias; and likewise as to the applicable law.... [¶] Misstatements, misrepresentations and/or material omissions of the relevant facts or law can instantly 'undo' an otherwise effective brief, waiving issues and arguments; it will certainly cast doubt on your credibility, may draw sanctions [citation], and may well cause you to lose the case." (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2023) ¶ 9:27 (rev. # 1, 2022).)
Wisch has filed a 20-page cross-appellant's opening brief that cites three cases, the first two of which deal with what Wisch says-wrongly-is the standard of review. The third case has two brief references to boilerplate principles of res judicata that have no applicability here. But perhaps even more problematic, Wisch's brief has no section entitled argument, or even any headings setting forth any claimed argument per se.
An appellant's burden includes the obligation to present argument and legal authority on each point raised. (See Hewlett-Packard Co. v. Oracle Corp. (2021) 65 Cal.App.5th 506, 565; Lee v. Kim (2019) 41 Cal.App.5th 705, 721.) So, when an appellant asserts a point but fails to support it with reasoned argument and citations to authority, the court may treat it as waived and pass it without consideration. (People v. Stanley (1995) 10 Cal.4th 764, 793; Salas v. Department of Transportation (2011) 198 Cal.App.4th 1058, 1074.)
Again Eisenberg is apt. That is, in his exposition of the "discussion portion of the brief," he begins with a "PRACTICE POINTER" and says that the "arguments should be thoughtfully developed with sound reasons for the holding you desire. Support your arguments with applicable legal authority (cases and statutes) as well as logic." And he then says this: "Use of headings: [California Rules of Court, rule] 8.204(a)(1)(B) requires each 'point' in a brief to appear 'under a separate heading or subheading summarizing the point ....' Thus, each issue should be addressed independently under a separate heading in the discussion section [citation]. Failure to do so may result in a waiver of the argument. [Citations.]" (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra, ¶¶ 9:149 to 9:150.)
Neither brief here measures up.
Principles of Appellate Review and the Standard of Review
The most fundamental rule of appellate review is that the judgment or order appealed from is presumed to be correct. (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.) "All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown." (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) This includes the presumption" 'that the record contains evidence to support every finding of fact....'" (In re Marriage of Fink (1979) 25 Cal.3d 877, 887.)
And as to the standard of review, Judge Whitman explained at length that the issue before her turned on principles of equity. And applying those principles-an application supported with pages of factual reference-she made the ruling she did. Since she did, we review her ruling under the abuse of discretion standard, as we recently confirmed in Hussain v. California Pacific Bank (2021) 61 Cal.App.5th 717. There, quoting Richardson v. Franc (2015) 233 Cal.App.4th 744, 751, an opinion by our colleagues in Division Four, we held as follows:" 'After the trial court has exercised its equitable powers, the appellate court reviews the judgment under the abuse of discretion standard. [Citation.] "Under that standard, we resolve all evidentiary conflicts in favor of the judgment and determine whether the trial court's decision' "falls within the permissible range of options set by the legal criteria." '" '" And referring to Richardson, we noted it specifically highlighted the equitable power of the trial court and its"' "broad discretion in deciding the type of equitable relief to fit a case's particular circumstances," '" and its conclusion that" 'the trial court is better equipped than we are to fashion equitable relief and we afford it considerable discretion.'" (Hussain v. California Pacific Bank, supra, 61 Cal.App.5th at pp. 727-728; accord Hirschfield v. Schwartz (2001) 91 Cal.App.4th 749, 771.)
Against that background, we turn to the two appeals before us here- and easily conclude that neither has merit.
Benedetto's Appeal Has No Merit
Benedetto's appeal says it presents one issue: "1. Did the Trial Court err in awarding [Wisch] One Hundred Percent of the difference in the actual sales price of the property . . . and the projected value of the Subject Property?" The argument asserts-correctly, as Judge Whitman would later confirm-that Wisch's opening argument in his September 1 presentation "does not contain a request for the entire amount of the difference between the Mora Sales Price and the $645,000 potential sales price. [Citation.] It does not contain any argument as all as to what percentage of the price differential should be allocated to which party."
Benedetto's argument then refers to Wisch's reply brief below, and asserts that it "states that he is requesting '(2) the amount Janko Trust would have received over and above the ultimate sale price to Jorge Mora at $608,000. $750,000-(Opening Brief, Anguiano declaration, para. 8-10) $608,000-(admitted closing of Mora purchase, Exs. F-1, F-2). Difference $142,000 divided by 2-$71,000.' CT P.480 [Emphasis added]." Benedetto's argument then concludes with the assertion that Judge Whitman "did not make any analysis at all for its award of the entire differential to Defendant," adding this:" 'Assuming a sale, as court ordered, during this time frame, the differential between the actual sale price of $608,000 and the actual value Dec[ember] 2020-March 2021 is approximately $52,000, which will be charged to Plaintiff.' [Citation.] 'This order does not pass muster, even under an abuse of discretion standard of review, because, as pointed out in In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866-871 . . . (Keech) as well as several other cases, the record must reflect that the court did in fact consider the factors set forth in [Family Code] sections 2030 and 2032.' "
Benedetto's argument is less than candid.
To begin with, the argument ignores Judge Whitman's extensive recitation of the facts on which she based her decision to credit the $52,000 to Wisch. Moreover, Benedetto's argument ignores Wisch's testimony below- testimony Benedetto herself acknowledged-where Wisch testified that "Benedetto kept the rest [of the rent] estimated at $69,000."
Were all that not enough, the argument ignores the statement in Judge Wise's December 17, 2020 order that "Defendant (Janko Trust) may seek to charge some portion or all of that price differential against the sale proceeds to be recovered by Plaintiff at such time as the Court determines the distribution of the net sales proceeds." Certainly Judge Whitman was empowered by that order-not to mention to principles of equity-to grant more than 50 percent to Wisch.
Wisch's Appeal Has No Merit
As noted, Wisch's opening brief has no argument section and nothing designated an argument, and it is thus difficult to determine precisely what argument(s) Wisch makes. As best we can glean, he makes two: (1) the expenses credited to Benedetto were not supported by admissible evidence; and (2) the expenses were "all incurred prior to the first judgment entered February 13, 2020 . . . [and] were all barred by res judicata."
The Expenses Were Supported
Wisch's argument about the evidence is not precise, and at different places in different briefs it is set forth in different terms. But however Wisch frames it, it fails.
The argument quotes the portion of Judge Whitman's ruling that says:" 'As to Plaintiff's request for credit for expenses paid, she is entitled to her proportional share....Plaintiff submitted a declaration in which she affirms that "her receipts and expenses" which were "paid to keep and maintain the property" and should have been borne jointly by Plaintiff and Defendant. (9/1/2022 Benedetto Decl.) No evidentiary objection was filed to her declaration. The attached spreadsheet sets forth an itemized list of such expenses.... Thus, Plaintiff is entitled to a credit of $78,640. See Janko Trust's 'Objection to Exhibit D' (CT P. 513-516)." Following that quotation Wisch says: "But Benedetto's Declaration [citation] simply does not authenticate, or verify, or cure the hearsay of Exhibit D, nor refer to 'her receipts and expenses.' The Court got it wrong."
At another point, Wisch's brief asserts that "The Court parsing Ruling was that Janko Trust only objected to the Exhibit D and not to Benedetto's Declaration, but Benedetto's Declaration did not overcome hearsay or declare personal knowledge or otherwise provide any foundation for admission into evidence, nor even say she paid any amount."
No it did not. As quoted above, Judge Whitman's ruling explained in detail why she held as she did on the issue of expenses.
Moreover, Wisch objected only to the spreadsheet as an exhibit to the declaration of John Zukowski, CPA. Wisch did not object to Benedetto's declaration, which also included the spreadsheet, and which laid the foundation for the receipts that were related to the Property.
We note that Wisch goes so far as to add a two-plus page "conclusion" to his brief, which conclusion begins with this statement: "Benedetto's word salad in her declaration, which the Court accepted as the basis for the ruling . . . is worth repeating by way of closing." Merriam-Webster defines "word salad" as "unintelligible, extremely disorganized speech or writing manifested as a symptom of a mental disorder ...." We do not find Benedetto's presentation to be "word salad." (Merriam-Webster Dictionary <https://merriam-webster.com/dictionary/word salad. >
Beyond all that, Wisch makes no argument at all directed to Judge Whitman's ruling on the evidence, none of the cases he cites having anything to do with evidentiary rulings.
Res Judicata
The other argument we discern in Wisch's brief is res judicata, set forth apparently on the assumption that the expenses in the exhibit were properly admitted. This is how Wisch puts it: "Even so, Exhibit D revealed, by the dates listed for each itemized expense, that the expenses, itemized were all incurred prior to the first Judgment entered February 13, 2020 (CT P. 697-701). They were all barred by res judicata."
Res judicata is an affirmative defense and as such can be waived if not pleaded and proven. (JSJ Limited Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1526; Rodgers v. Sargent Controls & Aerospace (2006) 136 Cal.App.4th 82, 88 ["res judicata is an affirmative defense that must be pled or otherwise raised in the trial court to avoid waiver," italics omitted].) Wisch did not plead res judicata as an affirmative defense in his answer to Benedetto's complaint. Nor did he assert the doctrine in his opening trial brief, nor his reply trial brief. He cannot assert it here.
Likewise is the argument barred by the general rule that theories not raised in the trial court cannot be asserted for the first time on appeal, that appealing parties must adhere to the theory (or theories) on which their cases were tried. This rule is based on fairness, as it would be unfair, both to the trial court and the opposing party, to permit a change of theory on appeal. It also reflects principles of estoppel and waiver. (Hewlett Packard Co. v. Oracle Corp, supra, 65 Cal.App.5th at p. 548; Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 997.)
While neither appeal has merit, the judgment below must be modified to account for the fact that the $14,995 amount referred to in the February 13, 2020 judgment (see fn. 4, ante) to be paid to Benedetto was in fact paid to her. Thus, as Benedetto's counsel conceded at oral argument, the judgment below, which states that Benedetto "shall receive $148,728.13" represents a double recovery to her in the amount of $14,995, which amount, her counsel also conceded, should be awarded to Wisch.
DISPOSITION
The judgment entered below is reversed, and the matter is remanded with instructions to enter a new judgment providing as follows:
"Of the funds interpleaded by Fidelity National Title Company and held by the Court, Plaintiff shall receive $133,783.13 and Defendant shall receive $133,803.12.
The clerk of the court to disburse the interpleaded funds as set forth above." Each side will bear its own costs on appeal.
We concur: Stewart, P.J., Miller, J.