Opinion
D072762
09-19-2018
SHADIA KHOURI, Plaintiff and Respondent, v. SUHAIR F. KHOURI, Defendant and Appellant.
Suhair F. Khouri, in pro. per.; Burke, Williams & Sorensen and Rafael Ramon Garcia-Salgado for Defendant and Appellant. Niddrie Addams Fuller Singh and David A. Niddrie for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2016-00006872-CU-OR-CTL) APPEAL from a judgment of the Superior Court of San Diego County, John Meyer, Judge. Affirmed and remanded with directions. Suhair F. Khouri, in pro. per.; Burke, Williams & Sorensen and Rafael Ramon Garcia-Salgado for Defendant and Appellant. Niddrie Addams Fuller Singh and David A. Niddrie for Plaintiff and Respondent.
Suhair Khouri appeals from a judgment quieting title between her and her sister, Shadia Khouri, and ordering the partition by sale of their property in Santee. In her complaint to quiet title and to seek a partition by sale, Shadia claimed that the ownership interests in the property were not clear from the face of recorded documents. After a bench trial, the court determined that the sisters each owned an undivided 50 percent interest in the property as tenants in common, the property should be partitioned by sale, and each owner should pay 50 percent of the costs of partition. The court further determined that Suhair "shall pay the reasonable expenses, including attorney fees and costs, incurred by [Shadia] as a result of [Suhair's] bad faith and frivolous opposition to [Shadia's] [c]omplaint." Suhair contends the judgment should be modified to apportion attorney fees evenly between the parties. We find no abuse of discretion on this record and affirm the judgment. As to the separate issue of the parties' motions for equitable apportionment of attorney fees relating to this appeal, we remand the matter for the trial court to conduct further proceedings.
To avoid confusion, we refer to the parties by their first names.
BACKGROUND
A. Prelitigation History
In 1987, three of the Khouri sisters (Suhair, M.K., and R.K.) purchased a family home in Santee. The sisters lived in the home together with their younger sister, Shadia, and brother (both then minors), and their mother, father, and grandmother.
In 1989, R.K. moved out; their grandmother passed away the same year. In 1991, Shadia moved away to attend college. The brother subsequently moved out to join the Navy. M.K. moved out in 1993. Their father died in 2001. Suhair lived in the home most of the time, but did not live there continuously. In 2007, Shadia moved back; Suhair was not living there at the time. In 2010, R.K. passed away.
Suhair spent some time living in other residences; the precise timeline, however, is unclear.
Around September 2014, mother's health was in decline and she moved into a nursing home in Lemon Grove. By this time, Shadia and Suhair's relationship was strained. In December, Suhair filed an unlawful detainer action against Shadia, attempting to evict her from the home. To spare Shadia from eviction, M.K. conveyed her ownership interest in the property, which resulted in Shadia obtaining part ownership, preventing her eviction.
Around this same time, the sisters were feuding over their mother's care. In late 2014, the mother executed an advance health care directive and power of attorney designating Shadia as her agent for health care decisions and M.K. as the first alternate agent. Shadia moved their mother from the Lemon Grove facility, where Suhair had placed her, to a facility in Santee that Shadia testified offered far superior care. Suhair, meanwhile, wanted their mother to return home. Their mother passed away in June 2016.
B. Shadia's Complaint
In 2016, Shadia filed a complaint to quiet title and obtain an order partitioning the property by sale. She alleged that she and Suhair were each entitled to a 50 percent interest in the property as tenants in common. Her three older sisters originally purchased the home in 1987; the original vesting deed filed and recorded with the office of the San Diego County Recorder reflected that title vested in R.K., M.K., and Suhair, each as an unmarried woman. Although the deed did not expressly so state, Shadia believed that the sisters intended to take ownership of the property as joint tenants with a right of survivorship because, at the same time the original vesting deed was recorded, a deed of trust was recorded reflecting that title vested in the sisters as joint tenants.
Shadia's complaint further alleged that, after R.K. died in 2010, M.K. signed and recorded an affidavit of death of a joint tenant along with a copy of R.K.'s death certificate. Shadia understood that title to the property was then vested in M.K. and Suhair as joint tenants with the right of survivorship.
In December 2014, M.K. signed and subsequently recorded a deed that purported to grant her 50 percent ownership interest to Suhair and Shadia as joint tenants (December 2014 deed). Shadia averred, however, that this deed was incorrectly prepared, as M.K.'s intention was to convey her entire 50 percent interest to Shadia so that title would thereafter be held by Suhair and Shadia, each with a 50 percent interest as tenants in common. Attempting to correct this error, M.K. later signed and recorded two quitclaim deeds: the first purporting to quitclaim her (original) interest in the property as a joint tenant to herself as a tenant in common, and the second quitclaiming that interest to Shadia. On their face, both quitclaim deeds purported to "correct[] and supersed[e]" M.K.'s December 2014 deed. Shadia averred that the intended effect of these deeds was that Suhair and Shadia would each own a 50 percent interest in the property as tenants in common.
Shadia requested an order from the court quieting title and declaring that Suhair and Shadia each had an undivided 50 percent interest in the property as tenants in common. Shadia further requested an order to partition the property by sale and to require Suhair to reimburse her for incurred costs of partition, including reasonable attorney fees, as the action was brought for the common benefit of the parties, to preserve and secure for each of them their respective interest and rights in the property.
Shadia later amended her complaint to add R.K.'s surviving spouse and children as parties and to request an order quieting title to reflect that they have no ownership interest in the property. They were served with the complaint but never appeared in the action.
C. Suhair's Answer
Suhair submitted a verified answer to the complaint. In it, she denied Shadia's allegation that "the owners in fee simple of the [s]ubject [p]roperty are: [Shadia], as to an undivided fifty percent (50%) interest as a tenant in common; and [Suhair], as to an undivided fifty percent (50%) interest as a tenant in common." She further denied that the December 2014 deed was erroneous or otherwise ineffective and denied that the subsequently filed quitclaim deeds had any legal effect. She denied that Shadia "is entitled to any relief concerning the ownership interest other than a finding that [Shadia] received one-half of the interest which had been held by [M.K.] pursuant to the [December 2014] deed."
Suhair's answer did not, however, deny the allegation in the complaint that "the [o]riginal [v]esting [d]eed was intended . . . to reflect title to the [s]ubject [p]roperty being vested in the names of [R.K.], [M.K.] and Suhair, all as joint tenants, with right of survivorship." Nor did Suhair's answer deny the allegation in the complaint that, after M.K. recorded the affidavit of death of a joint tenant, "title to the [s]ubject [p]roperty was vested in the names of [M.K.] and Suhair, as joint tenants, with right of survivorship."
Shadia subsequently argued that Suhair's failure to deny these allegations constituted a judicial admission that title to the property was vested in R.K., M.K., and Suhair as joint tenants, that, after R.K.'s death, title to the property was vested in M.K. and Suhair as joint tenants, and that Suhair accordingly "has no legitimate dispute regarding her ownership of a 50 [percent] interest in the [s]ubject [p]roperty." At trial, the court determined that, based on her answer and her statements made at deposition, Suhair had judicially admitted Shadia was entitled to a 50 percent interest. Suhair did not contest this determination in her opening brief on appeal—other than to state she disagrees with the conclusion that she made a judicial admission—but raised the issue for the first time in her reply brief. To the extent Suhair is attempting to challenge this finding on the merits, we reject it. Arguments raised for the first time in a reply brief have been forfeited. (SCI Cal. Funeral Services, Inc. v. Five Bridges Foundation (2012) 203 Cal.App.4th 549, 573, fn. 18 (Five Bridges Foundation).)
Suhair asserted two affirmative defenses. First, she averred that, when she purchased the property with her sisters in 1987, "[t]he implied agreement of the parties and the express oral agreement of the parties was that the sisters would share equally in the expenses of maintaining the home and caring for the parents." She accordingly sought an equitable reimbursement for expenditures she made in excess of those made by her sisters. Second, she averred that Shadia "never contributed any money for the benefit of the property," and that M.K. and Shadia waited until Suhair fully paid the mortgage on the property and then colluded to "commence[] activities to alter title to the property." As such, Suhair averred, Shadia was "barred by the doctrine of unclean hands" to equitable relief, and Suhair should "be declared to be the owner of all of the interest that had once been vested in [M.K.]"
D. Discovery
During discovery, Shadia was forced to move to compel a verified response to interrogatory requests. Suhair was sanctioned $300 for failing to timely provide a verified response.
Shadia also sought sanctions in connection with Suhair's failure to appear at her originally scheduled deposition date, but the court refused to impose them, finding that Suhair had timely informed Shadia's counsel she would be unable to attend that day and had offered three alternate dates to reschedule.
At her deposition, Suhair testified—contrary to the statement in her verified answer—there were no written or oral agreements between the sisters at the time they purchased the property. She believed the property was always held as a tenancy in common, under which, she claimed, "I can use all of the years that I paid against their interest."
She testified she had a 50 percent interest in the property:
"Q. Do you think that you own—you have an interest in the property that is more than one-third now?
"A. Yes, because -
"Q. When?
"A. Because after [M.K.] transferred her third to me and to Shadia, now, in the County and what it states in the County, that I own—that I have an interest of 50 percent."
Suhair also testified that she had an interest in the property greater than a third plus a sixth, but she was unable to state an exact number because "I have not done the accounting. I need to see someone for accounting. I have not seen anyone to calculate what is over and beyond, what is owed to me."
At deposition, Suhair testified she never believed M.K. wanted to transfer any of her interest to Suhair; M.K. did so, however, as part of a plan to establish the property interest as a joint tenancy:
"Q. . . . ; Why would [M.K.] want to transfer anything to you?
"A. She doesn't want to transfer. But she did in order to make a movement in the County to establish joint tenancy to use that document in the court filing that the whole title is under joint tenancy.
[¶] . . . [¶]
"Q. Let me see if I have your theory correct here then. Even though [M.K.] didn't want to transfer anything to you, and you agree, she had no intention of transferring anything to you, correct? Is that correct? She didn't want to transfer anything to you?
"A. She never wanted to transfer anything to Shadia or to me. But she was using her in order to establish joint tenancy and waive the right of my brother in law. Because if she didn't use Shadia, how could she establish a movement of joint tenancy?
"Q. So—so even though she didn't want to—even though she didn't want to transfer any of her interest in the property to you or any of her interest in the property to Shadia, she went ahead and signed a deed, anyway, that transferred one-sixth to you and one-sixth to Shadia, correct?
"A. Only as an elaborate plan.
"Q. Right. And that plan was because she intended to use this deed—
"A. Yes.
"Q. —to later claim that the entire vesting of title to the property was joint tenancy from the very beginning?
"A. Yes."
Suhair admitted at her deposition she was willing to sell the property, but she refused to stipulate on this issue, insisting she wanted "to go to court to see about the respective [ownership] interest[s], because the way how—the claim of Shadia and the way how [prior counsel] put on my answer to the complaint, it's all wrong. It is states it [sic], 50 percent for her, and that is not true."
E. Trial
The case proceeded to a bench trial, with testimony from Suhair, M.K., and Shadia.
1. Suhair's Testimony
Suhair testified that she, M.K., and R.K. purchased their family home in 1987 with a loan from the Veterans Administration. She testified that she believed she and her sisters took possession as tenants in common when they obtained the property in 1987. Suhair testified that when she signed the deed of trust in 1987, it was silent as to manner of title vesting. Only when that deed of trust was recorded did it reflect vesting as joint tenants. She intended to hold the property with her sisters as tenants in common.
At her deposition, Suhair had testified that, at the time she executed the deed of trust, she "did not notice" there was no vesting of title on it.
Suhair further testified that the three sisters contributed equally toward property expenses until R.K. moved out in 1989, at which point R.K. discontinued contributing. From 1989 until M.K. moved out, Suhair and M.K. contributed equally. After that, Suhair stated that she "paid everything." Suhair derived income from jobs in "insurance" and "research" and was later employed by the county as a caregiver for her mother. She paid off the mortgage around December 2014; the monthly mortgage payment was approximately $950.
Suhair testified that M.K. stopped contributing in December 1991 and got married in February 1992; however, M.K. testified she got married in February 1993.
Suhair attempted to introduce an accounting of expenses she "completed over the weekend." Shadia's counsel objected to its introduction, noting that it had not previously been produced and that "[w]e've been asking for this since day [one]." The court rejected the accounting as untimely.
At her deposition, Suhair had testified that she intended to prepare an accounting but had not yet done so. She stated she intended to produce it before trial.
In 2008, Suhair began collecting approximately $1,000 per month in rent from her mother, most of which was paid by public housing assistance (Section 8) funds, with the remainder paid from mother's social security. Suhair never shared or offered to share the rent she collected with co-owners of the property.
Beginning in 1997, mother received $800 per month in social security, which was deposited into a joint account mother and Suhair shared.
Suhair admitted to collecting Section 8 funds until her mother passed away in 2016 and admitted that the county had demanded repayment from her for a portion of the Section 8 payments made on her mother's behalf. Shadia offered into evidence a letter from the county demanding repayment of over $68,000, which stated that " 'this overpayment was as a result of: [o]wner was residing in Section 8 subsidized unit.' " Suhair testified that the repayment demand had been reduced by half and she was "still negotiating" to further reduce it. She further admitted that the Social Security Administration had demanded reimbursement for over $5,800 in overpayments made to her mother.
Suhair admitted she never did anything to set aside the affidavit of death of a joint tenant recorded after R.K.'s death, nor did she attempt to initiate probate proceedings upon R.K.'s death (a procedure to allocate property interests among heirs upon the death of a tenant in common).
It appears M.K. executed the affidavit of death the same day she executed the December 2014 deed granting her interest to Suhair and Shadia, "as joint tenants." Suhair testified this was the same day she paid off the mortgage.
Suhair testified that Shadia never paid rent and "never contribute[d]." Suhair initiated an unlawful detainer action in 2014 to evict Shadia from the home. During the eviction proceedings, Suhair learned that M.K. had conveyed a property interest to both Suhair and Shadia. M.K. executed and recorded a grant deed that purported to transfer her interest in the property "to [Suhair], an unmarried woman and [Shadia], a single woman, as joint tenants." The deed was recorded on January 7, 2015. The conveyance triggered a tax bill that Suhair paid. Suhair believed that the conveyance transferred half of M.K.'s ownership interest to her and the other half to Shadia, such that Suhair's interest was greater than Shadia's.
At her deposition, Suhair had testified that Shadia paid something toward household expenses, but she did not know how much. She characterized it as "a minimum amount."
Suhair admitted that she does not object to partitioning the property by sale; however, she believes she is entitled to more than the proposed 50 percent interest. She also believed she should not be bound by statements in her verified answer because her attorney "put down" things to which she never agreed.
This belief appears to be based on Suhair's positions that she contributed more over the years toward property costs and expenses, including the mortgage and property taxes, and M.K.'s December 2014 conveyance to both her and Shadia was valid and irrevocable, such that she has a larger interest in the property than Shadia does. Suhair's claims were not substantiated at trial.
Suhair's original attorney (who prepared the answer and certain discovery responses) was relieved as counsel while the parties were engaged in discovery. Suhair subsequently retained new counsel; however, that attorney was relieved after only three weeks. Suhair represented herself until trial, when she retained trial counsel.
2. M.K.'s Testimony
M.K. testified that, in 1987, she used money she earned from a settlement as the down payment on the mortgage that she and her sisters obtained to purchase the family property. Her father was in charge of the family's financial decisions at the time. She testified that the family pooled their contributions, and expenses were all paid from "one pot." She testified that, even after she moved out, she continued to contribute by giving her mother cash toward monthly mortgage payments and other property expenses and "to help out with whatever she needed, anything to do with the house or anything." R.K. and Shadia did the same. M.K. estimated she contributed two hundred dollars per month.
Suhair never asked M.K. for additional contributions toward the property. When presented with letters dated between 2009 and 2014 from Suhair requesting contribution toward expenses, M.K. testified that she received all the letters by mail in a single envelope two weeks before trial. Suhair did not dispute that she wrote the letters just weeks before trial and backdated them.
M.K. testified that, when she learned that Shadia might be evicted from the family home, she went to an escrow company and stated she wanted to transfer her ownership interest in the property to Shadia. She knew that, if Shadia had an ownership interest in the property, she could not be evicted. M.K. never intended to transfer any portion of her interest to Suhair. The escrow company prepared a grant deed that, on its face, transferred M.K.'s interest to Shadia and Suhair. When M.K. signed that deed, she believed it had been prepared correctly; she did not learn it was prepared incorrectly until approximately a year later, when Shadia's attorney told her. She then "[t]ried to correct what was done wrong. Tried to give it all back to Shadia." To that end, she recorded two quitclaim deeds. The first deed quitclaimed "her entire undivided one-half interest in the [property]" from herself, "as a joint tenant," to herself, "as a tenant in common." The deed stated:
"This [q]uitclaim [d]eed is being recorded for the purpose of correcting and superseding the [g]rant [d]eed signed by [M.K.] on December 29, 2014, and recorded on January 7, 2015, . . . and severing the existing joint tenancy between [M.K.] and [Suhair]."
The second deed quitclaimed M.K.'s interest as a tenant in common to Shadia as a tenant in common. The deed stated:
"This [q]uitclaim [d]eed is being recorded for the purpose of correcting and superseding the [g]rant [d]eed signed by [M.K.] on December 29, 2014, and recorded on January 7, 2015 . . . ."
After she executed these two quitclaim deeds, M.K. understood that Suhair and Shadia owned the property, each with a 50 percent interest, as tenants in common. M.K. testified she was "okay" with Shadia and Suhair equally splitting the proceeds from the sale, with nothing going to her or to R.K.'s family.
3. Shadia's Testimony
Shadia testified she was about 15 years old when her sisters purchased the family home. She moved out at the age of 19 in 1991 to attend college. Even after she moved out, she contributed to the household expenses by mailing cash or checks or giving her mother cash when she visited. She contributed two hundred dollars or more per month. Her sisters, brother, and uncles also contributed.
When she moved back into the home, it was at her mother's invitation; Suhair was not living there at the time. Shadia paid Suhair rent. She estimated that she paid approximately five hundred dollars in rent every month from the time she moved back home until the mortgage was paid off. Once she became an owner of the property, she offered to pay the property taxes and to contribute toward the utilities.
4. Court's Statement of Intended Decision
After trial, the court announced its statement of intended decision. The court found that Suhair had admitted in her deposition and in her verified answer that she has a 50 percent interest and admitted at trial that she is not opposed to partition. The court made the following factual findings: in 1987, the three sisters took title as joint tenants, the intent of which was manifested originally in the deed of trust, and which was consistent with the later-filed affidavit of death of a joint tenant. The family, which consisted of the mother, father, sisters, brother, and grandmother, lived in the home and all contributed to a common fund from which living expenses (including the mortgage, taxes, and insurance on the house) were paid. Other than Suhair, the sisters in turn moved out but continued to contribute by giving their mother cash. Suhair remained in the residence and received money by "illegally, fraudulently" setting herself up as her mother's landlord and obtaining Section 8 rent from the County; she also obtained money from the County as a County employee, paid to care for her mother, and she received her mother's social security payments. Together, these payments more than covered the rent she charged her mother.
The court asked Shadia's counsel to prepare a written statement of decision and judgment. It appears that counsel submitted a proposed statement of decision, and Suhair submitted proposed revisions and objections thereto. However, a written statement of decision executed by the court does not appear in the record, nor is there any indication the court subsequently adopted the statement of intended decision issued from the bench as a final statement of decision. "In the absence of a statement of decision, the appellate court will presume that the trial court made all factual findings necessary to support the judgment for which substantial evidence exists in the record." (Slavin v. Borinstein (1994) 25 Cal.App.4th 713, 718.)
The court found it credible that, after Shadia returned to the residence in 2007, she contributed toward the mortgage and maintenance of the house and toward household expenses. The court did not find Suhair credible and stated, "I don't believe her when she said, no, Shadia didn't pay anything."
R.K., who originally had an ownership interest in the property, passed away in 2010, leaving a surviving spouse and three children who were served in this action but did not answer. The court found they have no interest in the property and do not object to title being quieted without them.
When the mother's health declined, she moved out of the home into an assisted care facility. During this time, Suhair continued to collect mother's social security, which, the court noted, "is another interesting fact, but not necessarily germane to this proceeding[,] [e]xcept to underscore the unclean hands that I think are exhibited by [Suhair] in this case."
Suhair initiated eviction proceedings to evict Shadia; when M.K. learned of this, she executed a deed to Suhair and Shadia, mistakenly believing it would give them each a "50-50 interest" in the home. When M.K. realized that the recorded deed did not have its intended effect, she executed two quitclaim deeds to herself from a joint tenancy to a tenancy in common, and then to Shadia, thereby giving Shadia and Suhair a "50-50 interest." The court found that the December 2014 deed in which M.K. transferred her interest to both Suhair and Shadia was a mistake and "voided accordingly."
Although the current appeal challenges only the fee apportionment, not the underlying judgment, we note that, in circumstances such as these, a trial court may reform a deed due to a mistake in the grantor. (See Tyler v. Larson (1951) 106 Cal.App.2d 317, 319-320 [where grantor, for no consideration, executed a deed intending and believing that it had one effect but it actually had another, plaintiff was entitled to have the deed reformed whether or not defendant knew of or suspected the mistake].)
The court determined that the property should be partitioned by sale with the parties splitting the proceeds according to their respective "50-50" interests.
Shadia's counsel indicated on the record he intended to file a costs memorandum, seeking costs, including attorney fees, incurred in Suhair's bad faith litigation of the partition proceedings.
F. Post-trial Proceedings
Shadia subsequently submitted a bill of costs, seeking reimbursement for $77,730.34 in total costs, approximately $73,500 of which was attorney fees and $4,200 of which was costs and other expenses associated with litigation and trial.
Ultimately, the court entered judgment quieting title such that Shadia and Suhair each owned an undivided 50 percent interest in the property as tenants in common, directing partition of the property by sale, and finding that each owner should pay 50 percent of the costs of partition. The court further determined that Suhair "shall pay the reasonable expenses, including attorney fees and costs, incurred by [Shadia] as a result of [Suhair's] bad faith and frivolous opposition to [Shadia's] [c]omplaint." The judgment indicated that "[t]he sum of $77,730.34 is determined by this Court to be the reasonable expenses, including attorney fees and costs, incurred by [Shadia] as a result of [Suhair's] bad faith and frivolous opposition to the [c]omplaint."
Suhair timely filed a notice of appeal from the judgment.
DISCUSSION
A. Shadia's Motion to Strike Arguments in Suhair's Reply Brief
Suhair's opening brief on appeal challenges only the apportionment of attorney fees and costs. However, in her reply brief, Suhair asserts certain arguments related to the underlying judgment. For example, she challenges the trial court's finding that she admitted to owning a 50 percent interest in the property and certain statements regarding Section 8 payments received on her mother's behalf. Shadia contends that Suhair has improperly challenged the underlying judgment for the first time in her reply brief and requests that we strike or ignore the "improper arguments."
Arguments raised for the first time in a reply brief have been forfeited. (Five Bridges Foundation, supra, 203 Cal.App.4th at p. 573, fn. 18.) We interpret Suhair's reply brief arguments, however, not as a challenge to the underlying judgment, but as opposition to the trial court's findings that she litigated in bad faith and demonstrated unclean hands—findings the trial court relied upon in support of its decision to apportion costs in Shadia's favor. Therefore, we deny the motion to strike.
Shadia also contests Suhair's citation to unpublished authority in contravention of California Rules of Court, rule 8.1115, subdivision (a). We agree Suhair's citation to unpublished authority is improper here and we will not rely on any such authorities.
B. Suhair's Arguments Regarding Apportionment of Attorney Fees
Suhair contends the judgment should be modified to apportion attorney fees evenly between the parties. She identifies three issues: (1) did the trial court punish her for using Section 8 funds to pay the mortgage; (2) did the trial court punish her for taking the case to trial instead of settling; and (3) did the trial court err in failing to include her attorney fees in the fees and costs to be paid by both parties? In response, Shadia argues that the trial court properly exercised its equitable authority to apportion the attorney fees in this partition action. We agree with Shadia and find no abuse of discretion on this record.
1. Legal Standard
" 'A co-owner of real or personal property may bring an action for partition. [Citation.] "The primary purpose of a partition suit is . . . to partition the property, that is, to sever the unity of possession." ' " (Cummings v. Dessel (2017) 13 Cal.App.5th 589, 596 (Cummings); see also 14859 Moorpark Homeowner's Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1404-1405 [partition is " 'the procedure for segregating and terminating common interests in the same parcel of property' "].) Although an action of partition is governed by statute, "it is nonetheless an equitable proceeding." (Cummings, at p. 597; Code Civ. Proc. § 872.140 ["The court may, in all cases, order allowance, accounting, contribution, or other compensatory adjustment among the parties according to the principles of equity."].)
All statutory references are to the Code of Civil Procedure.
An award of costs in a partition action includes "[r]easonable attorney's fees incurred or paid by a party for the common benefit." (§ 874.010, subd. (a).) Section 874.040, which governs the apportionment of costs in a partition action, 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.)
This section has been interpreted as "broadly" allowing the trial court to apportion attorney fees based upon equitable considerations. (Lin v. Jeng (2012) 203 Cal.App.4th 1008, 1024-1025 (Lin).) "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 plaintiff[] establish[es] that the trial court exceeded the bounds of reason, resulting in a miscarriage of justice." (Lin, at p. 1025.)
We reject Suhair's contention that Finney v. Gomez (2003) 111 Cal.App.4th 527 restricts the trial court's authority to apportion costs to certain, limited circumstances. Suhair's position is contrary to the unambiguous statutory language. (See Lin, supra, 203 Cal.App.4th at p. 1025 ["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 . . . ."].) As the Lin court noted, the Finney court overlooked the difference between section 874.040 and its predecessor statute, former section 796, when concluding the trial court's authority to apportion costs was limited. (Lin, at pp. 1023-1024.)
2. The Trial Court Did Not Abuse Its Discretion
We reject each of Suhair's three arguments and conclude the trial court did not abuse its discretion here.
First, we reject Suhair's argument that she was wrongfully punished for using Section 8 funds to pay the mortgage. The court did not "punish" Suhair for using Section 8 funds. The court was troubled, however, that Suhair attributed the Section 8 funds as her own contribution to the mortgage. Suhair admittedly charged and received Section 8 rent payments without offering to share them with the co-owners of the property and without attributing that money to the family's common fund; meanwhile, she insisted that none of her sisters contributed to the property and that she singlehandedly paid property expenses, when there was little to no evidence she contributed any of her own money. Moreover, Suhair does not dispute she received at least some Section 8 funds inappropriately by continuing to accept payments after her mother no longer lived in the home. As such, we conclude the trial court acted within the bounds of its discretion in using the Section 8 evidence to support its determinations regarding bad faith, unclean hands, and lack of credibility.
Second, we reject Suhair's claim that the trial court "punish[ed]" her for taking the case to trial rather than settling. Rather, the court recognized that Suhair's actions caused the proceedings to be significantly and unnecessarily protracted and expensive and determined, in its broad discretion, that it was equitable for Suhair to bear the resulting costs. The example Suhair offers to illustrate her intent to litigate in good faith only highlights the problem. She contends, "at all times [she] intended to litigate in good faith. [She], for example, presented several accountings for mortgage and other property expenses that should have increased her ownership percentage in the subject property relative to [Shadia's] percentage. [Citation.] The trial court, however, refused to accept this evidence, due to Appellant preparing it late in the case." Indeed, the trial court rejected Suhair's purported accounting when she attempted to produce it for the first time at trial without first having shared it with Shadia or her counsel despite their request for such information from the outset of litigation. This is the opposite of good faith litigation. This type of trial strategy, using surprise and gamesmanship, undermines the purpose of civil discovery procedures. (See Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 388-389 [affirming trial court's decision to preclude evidence produced for the first time at trial].) On this record, we cannot conclude that the trial court exceeded the bounds of reason in finding that full apportionment of Shadia's attorney fees incurred in litigating the partition action to Suhair was equitable.
Third, we reject Suhair's contention that the trial court erred by failing to include her attorney fees as costs to be shared by the parties. We acknowledge that both parties' costs in a contested partition action may indeed be apportioned amongst the parties under sections 874.010 and 874.040. (See Orien v. Lutz (2017) 16 Cal.App.5th 957, 966-967.) Any determination to apportion the parties' fees is, as discussed ante, within the discretion of the trial court and subject to a determination that the fees were incurred "for the common benefit." (§§ 874.040, 874.010, subd. (a).) Here, however, it does not appear that Suhair submitted a bill of costs or otherwise asked the court to consider whether her attorney fees were incurred "for the common benefit" such that they should be apportioned among the parties. Because an apportionment of such fees requires factual determinations regarding their reasonableness and whether they were incurred "for the common benefit," this is not, as Suhair appears to contend, a pure question of law that is appropriate to raise for the first time on appeal. (See Frink v. Prod (1982) 31 Cal.3d 166, 170 ["parties have been permitted to change their theory on appeal where the issue is purely a question of law presented on undisputed facts"].) We conclude that Suhair has waived any request for her attorney fees to be apportioned among the parties. (See County of Los Angeles v. Southern Cal. Edison Co. (2003) 112 Cal.App.4th 1108, 1118 ["doctrine of waiver ordinarily prevents a party from arguing for the first time on appeal questions that were not presented to the trial court"].)
Not only do each of Suhair's three arguments lack merit, but there is also ample support for the trial court's equitable apportionment of costs to Suhair. The trial court found that Suhair's opposition to Shadia's complaint was in "bad faith and frivolous," that Suhair exhibited "unclean hands" throughout the case, and that Suhair lacked credibility. Suhair has not demonstrated that—in reaching these conclusions—the trial court exceeded the bounds of reason, resulting in a miscarriage of justice. As shown by the record, Suhair's deposition and trial testimony were often inconsistent, even on material issues, such as whether Shadia contributed to home expenses. She created backdated letters purporting to request contributions from her sisters over the years and attempted to offer this manufactured evidence at trial. Her behavior throughout the litigation significantly and unreasonably prolonged the proceedings. For example, she made a claim for contribution—based on an admittedly false assertion regarding a nonexistent agreement regarding contribution between the sisters when they purchased the home—but failed to timely provide an accounting. She refused to provide verified discovery responses—resulting in a sanctions award against her. And, she demanded taking the case to trial, insisting her interest in the property should be greater than Shadia's, despite the fact that she admitted at deposition that she never believed that M.K. intended to convey any of her property interest to her and that she believed she had a 50 percent interest in the property.
"[W]e do not second-guess the calls the trial court made regarding credibility." (Barboni v. Tuomi (2012) 210 Cal.App.4th 340, 349.)
Although a litigant has the right to proceed to trial, the trial court was not sanctioning Suhair for exercising that right. Rather, the trial court was properly considering the totality of Suhair's litigation conduct in determining how to equitably apportion costs. Where such litigation conduct demonstrates a litigant's positions lack merit and unnecessarily result in a waste of time and resources, the trial court acts well within its discretion in taking note of such facts. (See Lin, supra, 203 Cal.App.4th at pp. 1025-1026 [it was equitable for plaintiff in partition action to bear her own attorney fees when she claimed an interest vis-à-vis her siblings to which she "was well aware that she was not entitled," and created unnecessary procedural delay].)
In sum, Suhair's arguments lack merit and substantial evidence supports the trial court's determination that it was equitable to require Suhair to pay Shadia's attorney fees incurred in the partition action.
Because we find that the award of fees and costs was an appropriate exercise of discretion under section 874.040, we need not address Suhair's alternative argument that the fee award is not justified under section 128.5.
C. Motions to Apportion Costs on Appeal
Both Shadia and Suhair have filed motions "for equitable apportionment of attorney fees on appeal." A party is entitled to costs of partition including reasonable attorney fees on appeal upon a finding such fees were incurred "for the common benefit." (§ 874.010, subd. (a); Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 927 ["settled case law . . . establishe[s] the general principle that statutes authorizing attorney fee awards in lower tribunals include attorney fees incurred on appeals of decisions from those lower tribunals"].) We remand proceedings to the trial court to determine in the first instance whether any of the requested fees were incurred "for the common benefit." The trial court will have the discretion to determine the amount of fees and costs that should reasonably be included in any such award, and to determine the proper equitable apportionment under section 874.040.
DISPOSITION
The judgment and costs award is affirmed, and the matter is remanded to the trial court to conduct further proceedings (consistent with this opinion) to address the parties' motions for equitable apportionment of attorney fees on appeal under Code of Civil Procedure section 874.040.
Respondent is entitled to costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
GUERRERO, J. WE CONCUR: HALLER, Acting P. J. IRION, J.