Opinion
B322219
11-13-2023
CALLY WILLIAMS CAIOZZO, Plaintiff and Respondent, v. 2672 TO 2674 NORTH BEACHWOOD DRIVE, LLC, Defendant and Appellant.
Goodkin Law Group, Daniel L. Goodkin and Randy Aguirre for Defendant and Appellant. De Castro, West, Chodorow, Mendler &Glickfeld, and Mark L. Share; Klapach &Klapach and Joseph S. Klapach for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an interlocutory judgment of the Superior Court of Los Angeles County No. 21STCV19018, Yolanda Orozco, Judge. Affirmed and remanded.
Goodkin Law Group, Daniel L. Goodkin and Randy Aguirre for Defendant and Appellant.
De Castro, West, Chodorow, Mendler &Glickfeld, and Mark L. Share; Klapach &Klapach and Joseph S. Klapach for Plaintiff and Respondent.
CURREY, P. J.
INTRODUCTION
This is a partition action involving real property known as 2672-2674 North Beachwood Drive, Los Angeles, California 90068 (the duplex or the property). Plaintiff Cally Williams Caiozzo (Caiozzo or plaintiff), as trustee of the Harry A. Williams Family Trust created on August 7, 1984, moved for summary adjudication of her sole cause of action for partition of the property by sale.
The notice of motion explained the requested order was interlocutory in the sense that it leaves issues for future determination, for example, the appointment of a referee to sell the duplex.
In its tentative ruling on the motion, the trial court found Caiozzo is entitled to partition as a matter of law, but failed to meet her burden to establish, as a matter of law, that the method of partition sought (i.e., sale of the property) is equitable. The court, therefore, did not grant the motion in its tentative ruling. Instead, it appointed a referee pursuant to Code of Civil Procedure section 872.820, subdivision (b) to provide an advisory report on the appropriate method of partition. It then continued the hearing on the motion for summary adjudication until the court received a referee's report.
All further undesignated statutory references are to the Code of Civil Procedure.
Rather than meeting and conferring regarding the selection of a referee, the parties entered into a stipulation requesting the court grant the motion "without deciding the issue of partition 'in kind or by sale' and issue its interlocutory judgment thereon . . . on the grounds set forth" in the tentative ruling. The purpose of the stipulation was to facilitate the ability of defendant 2672 to 2674 North Beach Wood Drive, LLC (the LLC) to file this appeal immediately.
The trial court entered an interlocutory judgment of partition as provided in the parties' stipulation, and this appeal followed. On appeal, the LLC contends the trial court erred by granting plaintiff's motion because: (1) plaintiff failed to prove each element of her claim for partition by sale; and (2) triable issues of material fact exist regarding the issues of standing and the LLC's equitable defenses. For the reasons discussed below, we reject these contentions and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The duplex contains a two-story multi-family structure with a downstairs unit (the 2672 unit), an upstairs unit (the 2674 unit), and a garage structure with parking for each unit. As detailed below, the property has been an asset of the extended Williams family since 1962.
In 1962, Lela Fay McKinnon conveyed the property to (1) Alex and Kaliopy Williams as husband and wife; (2) Harry and Pauline Williams as husband and wife; and (3) Dino and Barbara Williams as husband and wife (the 1962 Deed).
In 1965, the owners under the 1962 Deed transferred the property to (1) Dino and Barbara Williams as joint tenants to an undivided one-half interest; and (2) Harry and Martha Williams as joint tenants to an undivided one-half interest (the 1965 Deed).
Absent from the 1965 Deed is Pauline Williams's name as Grantor and her signature. The LLC argued below that this alleged defect in the chain of title called the Trust's ownership interest in the duplex into question. The trial court rejected this argument. In its opening brief on appeal, however, the LLC does not challenge the validity of the 1965 Deed and, therefore, has forfeited the issue. (Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1345-1346, fn. 6 (Shaw) ["[A]n appellant's failure to raise an issue in its opening brief [forfeits] it on appeal"]; see also Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1303 (Sporn) ["Contentions on appeal are [forfeited] by a party who fails to support them with reasoned argument and citations to authority"].)
In 1984, Harry and Martha Williams transferred their undivided one-half interest in the property to themselves or their successors as trustees of the Harry A. Williams Family Trust, created August 7, 1984 (the Trust) (the 1984 Deed).
In 2013, Harry and Martha Williams, as trustees of the Trust, transferred their undivided one-half interest in the property to "Harry A. Williams and Cally Williams Caiozzo [Harry's daughter], or their successors, Trustees of the [Trust]" (the 2013 Deed). (Capitalization omitted.) The 2013 Deed is signed twice by Harry Williams, first as "co-trustee" and second as Martha Williams's attorney-in-fact
In March 2020, Harry Williams died, leaving Caiozzo as the sole trustee of the Trust. In March 2021, Caiozzo recorded an Affidavit of Death of Trustee, which disclosed the death of Harry Williams, attached a copy of his death certificate, and stated "[b]y virtue of the death of HARRY A. WILLIAMS on March 7, 2020, Cally Williams Caiozzo became sole Trustee" of the Trust, which is the record owner of an undivided one-half interest in the property.
With respect to the other undivided one-half interest in the duplex, in 1999, Dino Williams deeded his interest in the property to himself as trustee of the Dino Williams Family trust. After Dino Williams died in 2014, his three children, Alexa Williams, Gregory Williams, and Llandys Williams (Dino's children) became owners of Dino Williams's undivided one-half interest in the property as successor co-trustees of the Dino Williams Family Trust. Dino's children then engaged in a series of transfers in 2014, 2015, 2018, and 2019, by which the undivided one-half interest in the property belonging to the Dino Williams Family Trust was transferred to the LLC in this action. In May 2021, Caiozzo, as trustee of the Trust, filed a complaint against the LLC. The complaint asserts one cause of action for partition by sale of the property. It alleges title to the property is held by the Trust and the LLC as tenants-in-common, each owning an undivided one-half interest. It further alleges partition by sale is the more equitable remedy than division in kind because the property "is an improved two-unit residential property with buildings covering much of the land underlying it, and cannot physically be divided, and because preservation of value of the Duplex property, and any economically practical use of the Duplex property, requires ownership and use of the entire property." In response, the LLC filed an answer and a crosscomplaint for breach of fiduciary duty, conversion and fraud.
Specifically, in 2014, Dino's children transferred the undivided one-half interest in the property they held as trustees of the Dino Williams Family Trust to themselves individually; in 2015, Dino's children transferred their undivided one-half interest to the Dino Williams Family, LLC; in 2018, the Dino Williams Family, LLC transferred the undivided one-half interest to Alexa Williams and Llandys Williams individually and to Gregory Williams as Trustee of the Gregory Paul Williams Living Trust; and in 2019, Alexa Williams and Llandys Williams individually and Gregory Williams, as trustee, transferred the undivided one-half interest in the property to the LLC in this action.
Caiozzo then moved for summary adjudication of her cause of action for partition of the property. Caiozzo requested the court, "upon determining Plaintiff is entitled to partition, set an OSC for appointment of a referee to sell the Duplex Property" under section 873.010, subdivision (a). The LLC opposed the motion, arguing Caiozzo failed to meet her burden of proof that she has a right to partition and, alternatively, triable issues of material fact exist.
After a hearing on the motion, the court adopted its 15-page tentative ruling in which it concluded Caiozzo met her burden of establishing, as a matter of law, that she is the trustee of the Trust, the Trust is a co-owner of the property, and she did not waive her right to partition. (See § 872.710, subd. (b) ["[P]artition as to concurrent interests in the property shall be as of right unless barred by a valid waiver"].) It further concluded, however, that Caiozzo failed to meet her burden of proving as a matter of law that a sale of the property is more equitable than a division in kind. It found that appointing a referee pursuant to section 872.820, subdivision (b) would be beneficial in assisting the court to determine whether the property should be physically divided or sold. It then continued the hearing on the motion "until such time as the Court receives a referee's report."
Rather than meeting and conferring regarding the selection of a referee, the parties filed a stipulation requesting the court: (1) take the continued hearing on the motion off calendar; (2) grant the motion without deciding the issue of partition in kind or by sale "and issue its interlocutory judgment thereon ('Interlocutory Judgment') on the grounds set forth in the Tentative; and (3) date the granted motion and Interlocutory Judgment as of the May 23, 2022 continued hearing date on the motion. Based on the parties' stipulation and good cause appearing, the trial court ordered: "The continued hearing on the Motion is taken off calendar and the Court grants the Motion and Interlocutory Judgment as stipulated on the basis of the Court's Tentative, but without deciding the issue o[f] partition 'in kind' or 'by sale[.]'"
The trial court entered an interlocutory judgment of partition. It states Caiozzo, as trustee of the Trust, and the LLC, as tenants in common, each own an undivided one-half interest in the property; the property is not subject to any encumbrances; and Caiozzo is entitled to partition pursuant to section 872.720, subdivision (a). The interlocutory judgment further states: "The parties have stipulated to entry of a final order granting the motion for summary adjudication of partition of the [property] and this interlocutory judgment on the grounds set forth in the tentative order . . . but without deciding the issue of the manner of partition of the [property], and without any further proceedings in this Court so that [the LLC] can immediately appeal the grant of summary adjudication."
The LLC timely appeals from the interlocutory judgment.
The interlocutory judgment is appealable under section 904.1, subdivision (a)(9), which provides an appeal may be taken from "an interlocutory judgment in an action for partition determining the rights and interests of the respective parties and directing partition to be made."
DISCUSSION
A. Standard of Review and Statutory Scheme
A plaintiff is entitled to summary adjudication of a cause of action if there is no triable issue of material fact and the plaintiff is entitled to judgment as a matter of law on that cause of action. (§ 437c, subd. (f)(1), (2).) Once plaintiff has met his or her burden of proving each element of the cause of action, the burden shifts to the opposing party to show that a triable issue of material fact exists. (Id., subd. (p)(1).) "A triable issue of fact exists if the evidence would allow a reasonable trier of fact to find the fact in favor of the party opposing summary judgment." (Grebing v. 24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631, 637.)
We review the trial court's ruling de novo, liberally construe the evidence in favor of the party opposing the motion, and resolve all doubts concerning the evidence in favor of the opposing party. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.) We must affirm a summary adjudication "if it is correct on any of the grounds asserted in the trial court, regardless of the trial court's stated reasons." (Grebing v. 24 Hour Fitness USA, Inc., supra, 234 Cal.App.4th at p. 637.)
"'"[P]artition" [is] "the procedure for segregating and terminating common interests in the same parcel of property.'" [Citation.] It is a '"'remedy much favored by the law. The original purpose of partition was to permit cotenants to avoid the inconvenience and dissension arising from sharing joint possession of land. An additional reason to favor partition is the policy of facilitating transmission of title, thereby avoiding unreasonable restraints on the use and enjoyment of property.'"'" (Summers v. Superior Court (2018) 24 Cal.App.5th 138, 142 (Summers).)
The right of a co-owner to seek partition is governed by statute. Under section 872.710, subdivision (a), the court "shall determine whether the plaintiff has the right to partition." "If the court finds that the plaintiff is entitled to partition, it shall make an interlocutory judgment that determines the interests of the parties in the property and orders the partition of the property and, unless it is to be later determined, the manner of partition." (§ 872.720, subd. (a).) "'The manner of partition may be "in kind"-i.e., physical division of the property [citation]-according to the parties' interests as determined in the interlocutory judgment. [Citations.] Alternatively, if the parties agree or the court concludes it "would be more equitable," the court may order the property sold and the proceeds divided among the parties.'" (Summers, supra, 24 Cal.App.5th at p. 143.)
"Two points are made clear by these provisions. First, an interlocutory judgment in a partition action is to include two elements: a determination of the parties' interests in the property and an order granting the partition. (§ 872.720, subd. (a).) Second, the manner of partition-i.e., a physical division or sale of the property-is to be decided when or after the parties' ownership interests are determined, but not before. (Ibid.)" (Summers, supra, 24 Cal.App.5th at p. 143.)
B. The Trial Court Did Not Err by Granting Caiozzo's Motion for Summary Adjudication Pursuant to the Parties' Stipulation
The LLC contends the trial court erred by granting Caiozzo's motion for summary adjudication because she failed to establish an essential element of her cause of action for partition by sale. That element, according to the LLC, is establishing that a sale is more equitable than a division in kind. We are unpersuaded.
Preliminary, we note the LLC's argument is barred by the doctrine of invited error. As discussed above, the LLC entered into a stipulation with Caiozzo requesting the court grant the motion without deciding the issue of partition in kind or by sale, and issue an interlocutory judgment on the grounds set forth in the court's ruling on the motion. The LLC now reverses its position on appeal and argues the trial court was procedurally barred from granting the motion without deciding the manner of partition because proving a sale is more equitable than a partition in kind is an element of the cause of action. We acknowledge the stipulation reserves the LLC's "right to appeal[.]" But that reservation is limited to appealing the trial court's findings in the order on the motion (i.e., Caiozzo is entitled to partition as a matter of law). It cannot, however, claim the court acted improperly by doing exactly what it requested to facilitate this appeal. (See, e.g., Transport Ins. Co. v. TIG Ins. Co. (2012) 202 Cal.App.4th 984, 1000 ["'Under the doctrine of invited error, when a party by its own conduct induces the commission of error, it may not claim on appeal that the judgment should be reversed because of that error.'"]; Davis v. Harano (2022) 79 Cal.App.5th 688, 692 ["[I]t is unfair for a party to profit in an appellate court by misleading the trial court"].)
In any event, we reject the contention on the merits. The LLC relies on section 872.230 for its argument that proving a sale is more equitable than partition in kind is an element of the cause of action. That section, titled "Contents of complaint," provides in relevant part: "The complaint shall set forth: [¶] (a) A description of the property that is the subject of the action .... [¶] (b) All interests the plaintiff has or claims in the property. [¶] (c) All interests of record or actually known to the plaintiff that persons other than the plaintiff have or claim in the property and that the plaintiff reasonably believes will be materially affected by the action .... [¶] (d) The estate as to which partition is sought and a prayer for partition of the interests therein. [¶] (e) Where the plaintiff seeks sale of the property, an allegation of the facts justifying such relief in ordinary and concise language." (§ 872.230.)
By referring to subdivision (e) of section 872.230 as an "element" of a partition by sale cause of action that must be proven at the summary adjudication stage, the LLC misapprehends the statutory scheme. As discussed above, under section 872.720, if the court finds the plaintiff is entitled to partition, "it shall make an interlocutory judgment that determines the interests of the parties in the property and orders the partition of the property and, unless it is to be later determined, the manner of partition. (§ 872.720, subd. (a), italics added.) And, to assist the court in determining whether a sale of the property would be more equitable than a division of the property, the court may appoint a referee and take into account his or her report. (§ 872.820, subd. (b).) Thus, after determining the plaintiff is entitled to partition, the statutory scheme governing partition actions allows the trial court to either (1) determine the manner of partition in the interlocutory judgment; or (2) enter an interlocutory judgment confirming the plaintiff's right to partition while reserving the determination of the manner of partition for the final judgment. (See Summers, supra, 24 Cal.App.5th at p. 143.) The trial court here did exactly what sections 872.720 and 872.820 expressly permit it to do. After finding Caiozzo was entitled to partition as a matter of law, in accordance with the parties' stipulation, the trial court entered an interlocutory judgment that determined the parties' interests in the property, ordered partition of the property, and provided the manner of partition would be later determined (based on its finding that issues of fact exist regarding whether a sale is more equitable than a division in kind). We, therefore, discern no error.
C. The Trial Court Did Not Err by Finding No Triable Issues of Material Fact Exist Regarding Caiozzo's Right to Partition
The LLC alternatively contends that even if Caiozzo met her prima facie burden of establishing the elements of her cause of action, it presented sufficient evidence to defeat summary adjudication because triable issues of material fact exist. We disagree.
1. Chain of Title
The party seeking partition must prove he or she holds clear title to an undivided interest in the real property. (De Roulet v. Mitchel (1945) 70 Cal.App.2d 120, 124.) The LLC argues triable issues of fact exist regarding whether Caiozzo is, in fact, the trustee of the Trust and, even assuming she is the trustee, whether the Trust owns an undivided one-half interest in the property.
We first address the LLC's argument that the trial court erred in finding Caiozzo met her burden of establishing she is the sole trustee of the Trust. In support of her motion for summary adjudication, Caiozzo submitted a declaration in which she declared she is "the sole Trustee of the Harry A. Williams Family Trust U/D/T August 7, 1984." In addition to her declaration, Caiozzo submitted other documentary evidence, including: (1) the 2013 Deed, which states "HARRY A. WILLIAMS and CALLY WILLIAMS CAIOZZO, or their successors, Trustees of the [Trust]"; (2) the 2021 Affidavit of Death of Trustee, which provides "I, CALLY WILLIAMS CAIOZZO, am the Trustee [of the Trust], which was in effect at the time of the death of the decedent.; (3) copies of the Trust's checks indicating Caiozzo is the trustee; and (4) Caiozzo's response to the LLC's form interrogatories: "On January 22, 2013, Martha Williams resigned as Co-Trustee of the Trust and I accepted appointment as CoTrustee of the Trust. I have not resigned. Co-Trustee Harry Williams passed away on March 7, 2020, and I have served as sole Trustee since that date." In opposition, the LLC argues Caiozzo failed to produce a copy of the Trust instrument. But the LLC provides no evidence demonstrating Caiozzo is not the trustee of the Trust. Rather, the LLC speculates that Caiozzo might not be the sole trustee and, even if Caiozzo is the trustee, the Trust documents "may . . . restrict[ ]" her from "selling Trust assets." (Emphasis added.) Triable issues of fact, however, cannot be created by "'speculation, conjecture, imagination or guess work.'" (Yuzon v. Collins (2004) 116 Cal.App.4th 149, 166.)
The LLC asserts Jim Hutton, Caiozzo's stepbrother, "claims these [Trust] documents do not exist." The LLC relies on Hutton's response to a deposition subpoena, which requested documents in Hutton's possession, custody, or control relating to the executors or trustees of the Trust. Hutton responded: "A diligent search and reasonable inquiry have been made in an effort to locate the documents demanded, but Responding Party is unable to comply because no such documents never [sic] existed." That he does not have documents in his possession, custody, or control, however, does not mean the documents do not exist or that Caiozzo is not the sole trustee of the Trust. As the trial court noted at the hearing on the motion, there is no reason to believe Hutton would have Trust documents because he is not a trustee but merely a tenant at the property.
Next, the LLC contends triable issues of fact exist regarding the Trust's purported ownership of an undivided one-half interest in the property based on alleged defects in the 2013 Deed. But the 2013 Deed has no bearing on the Trust's ownership interest in the property. It was the 1984 Deed, which the LLC does not challenge on appeal, that transferred Harry and Martha Williams' individual, undivided one-half interest in the property to the Trust. The 1984 Deed provided that the property was being transferred to "Harry A. Williams and Martha S. Williams, or their successors," as "Trustees of the Harry A. Williams Family Trust." Thus, when Caiozzo became the successor trustee of the Trust in 2013, the Trust already owned an undivided one-half interest in the property based on the 1984 Deed. Because Caiozzo, as successor trustee to the Trust, established the Trust's ownership of an undivided one-half interest in the property based on the 1984 Deed, the purported defects in the 2013 Deed are immaterial to this action. Indeed, in its reply brief on appeal, the LLC does not refute Caiozzo's argument that the 1984 Deed establishes the Trust's ownership interest in the property. Rather, the LLC reiterates its argument that because Jim Hutton claims no Trust documents exist, a triable issue of fact exists regarding whether Caiozzo is the sole trustee of the Trust. As discussed above, Hutton's lack of possession of Trust documents, even if accepted as true, does not move the needle.
In sum, we conclude the LLC did not meet its burden to demonstrate triable issues of fact exist regarding Caiozzo's status as the sole trustee of the Trust, and the Trust's undivided one-half interest in the property.
2. Equitable Defenses
Section 872.710, subdivision (b) provides, in relevant part: "[P]artition as to concurrent interests in the property shall be as of right unless barred by a valid waiver." (Italics added.) The statute, therefore, provides that the only equitable defense relevant to a concurrent landowner's right to partition is waiver. (See Orien v. Lutz (2017) 16 Cal.App.5th 957, 962 ["'A co-owner of property has an absolute right to partition unless barred by a valid waiver'"].)
After concluding no triable issues of fact exist regarding title to the property, the trial court extensively analyzed whether triable issues exist regarding the LLC's argument that Caiozzo either expressly or impliedly waived her right to a partition. It found none exist and, thus, Caiozzo is entitled to a partition of the property. The LLC contends the trial court erred, however, by concluding Caiozzo was entitled to partition as a matter of law without considering whether triable issues of fact exist regarding its equitable defenses of unclean hands, estoppel, laches, and failure to do equity.
The LLC does not argue in its opening brief that the trial court erred by finding no triable issues of fact exist regarding its equitable defense of waiver. In its reply brief, the LLC claims it references waiver in its opening brief, but a passing mention of an issue is insufficient to preserve it on appeal. We therefore deem this issue forfeited. (See Shaw, supra, 83 Cal.App.4th at pp. 1345-1346, fn. 6; see also Sporn, supra, 126 Cal.App.4th at p. 1303.)
Notwithstanding the clear language of the statute, the LLC argues case law expands on the exceptions to the entitlement to a partition. It relies solely on American Medical International, Inc. v. Feller (1976) 59 Cal.App.3d 1008, 1015 (AMI), which states: "In addition to the limitation on the right of partition derived from express and implied waiver by agreement, there is an even wider and more general limitation. This limitation subjects the right of partition to the 'requirement of fairness.'" The AMI decision, however, does not address section 872.710, which was enacted the same year AMI was decided. Rather, AMI was decided under the former statute, section 752, which did not provide for an absolute right of partition. (See AMI, supra, 59 Cal.App.3d at p. 1013 [quoting former section 752, which provided that "'[when] several cotenants own real property . . . an action may be brought by one or more of such persons, . . . for a partition thereof according to the respective rights of the persons interested therein"].) Because AMI does not address section 872.710, it does not guide our analysis.
Accordingly, we conclude, based on the plain language of the statute, that the trial court did not err by considering only the LLC's waiver defense when analyzing whether Caiozzo had a right to partition. (§ 872.710, subd. (b).) On remand, however, in determining whether Caiozzo meets her burden to demonstrate a sale of the property is more equitable than a division in kind, the court is directed to consider all of the LLC's equitable defenses, including unclean hands, estoppel, laches, and failure to do equity.
We note that on appeal, the LLC continues to direct the equitable defenses to the sale of the property, not the right to partition. In its opening brief, the LLC argues it "raised various facts, supported by evidence, outlining clear instances of [Caiozzo's] unclean hands, failure to do equity, and performance of laches with respect to seeking to force a sale of the Duplex Property at a significantly reduced price." (Italics added.)
DISPOSITION
The interlocutory judgment is affirmed. The matter is remanded for further proceedings consistent with this opinion. Caiozzo is awarded her costs on appeal.
We concur: COLLINS, J. ZUKIN, J.