Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BC374888, Elizabeth A. White, Judge.
Alanna McMahon, in pro. per., for Defendant and Appellant.
Hitchcock, Bowman & Schachter and Robert Schachter for Plaintiffs and Respondents.
WILLHITE, J.
INTRODUCTION
Defendant Alanna McMahon appeals from an order entered by the trial court on a motion brought by plaintiffs Margaret LeBlanc and Geraldine McMahon to enforce a settlement agreement in this action to partition real property, in which the parties share an interest under the terms of a living trust. Appellant contends that the trial court exceeded its jurisdiction by deciding the matter despite the existence of a previously pending action in San Diego County Superior Court, in which appellant sought removal of respondents as co-trustees of the trust for purported failures to provide accountings and other misconduct. Appellant further contends that the trial court violated her right to due process by failing to consider evidence presented by appellant, and demonstrated a lack of impartiality. We find no merit in these contentions, and therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Margaret E. McMahon Living Trust (the trust) owned fee title to a residence and four adjacent, vacant lots located in Los Angeles County. The trustor transferred a small percentage of the fee interest in the four vacant lots to her three daughters, appellant Alanna McMahon, and respondents Geraldine McMahon and Margaret LeBlanc. The trust (dated December 12, 1990) retained full fee ownership of the fifth lot, the property on which a residence is situated. After the trustor died, respondents were named by the court as the successor co-trustees of the trust.
Under the terms of the trust, respondents were entitled to immediate distribution of their respective one-third shares of the trust assets upon the death of the trustor. Appellant’s one-third share was to be held in a special needs trust.
After the parties failed to reach an agreement on whether to sell the five lots together rather than individually, on July 25, 2007, respondents filed a complaint for partition pursuant to Code of Civil Procedure section 872.010 et seq. Appellant filed an answer, in which no mention was made of the pendency of any related action in San Diego County Superior Court.
Trial was scheduled for July 21, 2008. At that time, the parties stated that they had reached a settlement pursuant to Code of Civil Procedure section 664.6, the terms of which were read into the record. The parties orally stipulated to their respective ownership interests for each lot, and to sell or auction the real property through a broker. They also agreed that if they could not agree on a list price, the list price would be determined by the court based on information presented by the parties to the court. At no time during the hearing did appellant call to the court’s attention the existence of a related action pending in San Diego County Superior Court.
In April 2009, respondents filed a motion seeking enforcement of the settlement agreement (specifically, requesting a court order to list the property for sale). The motion was refiled in July 2009, and hearing was set for September 3, 2009. Respondents filed a supplemental declaration attaching the reporter’s transcript from the hearing of July 21, 2008, during which the terms of the parties’ settlement agreement had been read into the record.
Respondents indicated that they had agreed that if appellant could secure the services of an auction company to offer the property at the minimum bid price desired by appellant (which was about four times the fair market value recommended by respondents’ real estate brokers), respondents would agree to auction the property at that price. Appellant could not find an auction company that would do so. Respondents requested a court order that the property be listed for sale because the auction companies they had contacted wished to list the property at a minimum bid price about $450,000 lower than the fair market value recommended by respondents’ brokers.
At the hearing on September 3, 2009, the parties entered into a further settlement agreement that was recited into the record. They agreed to list the property for sale by March 1, 2010. If the parties could not agree on a broker or auctioneer and the list price and other terms for the sale by November 30, 2009, the court reserved jurisdiction to consider a motion requesting that the court select a broker or auctioneer and establish the terms of sale.
The parties did not reach an agreement in selecting a broker or auctioneer and setting the sales price, so respondents filed a motion in December 2009 asking the court to determine those issues. Hearing was held on January 29, 2010, at the conclusion of which the trial court ordered the property to be listed with real estate agent Peggy Sassi of Coldwell Banker. The court set the listing price at $875,000.
DISCUSSION
I. JURISDICTION TO CONSIDER PARTITION ACTION
Appellant contends on appeal that the trial court “overstepped its jurisdictional boundaries when it chose to allow this partition complaint to go forward despite the pending San Diego matters[, ] which impact directly on trust assets and which call into serious question the competence of [the respondent] trustees.” We conclude that the trial court did not abuse its discretion by proceeding to hear and determine the partition action.
As appellant acknowledges, the fact that the petition for removal of trustees was pending in the San Diego County Superior Court meant that it and the trial court here had concurrent jurisdiction over matters involving the same parties and subject matter. She does not argue that the trial court here lacked jurisdiction over the subject matter involved in the partition action. The judicial rule of “exclusive concurrent jurisdiction” provides that when two or more courts in this state have concurrent jurisdiction, the court first assuming jurisdiction retains it to the exclusion of all other courts in which the action might have been initiated. (Childs v. Eltinge (1973) 29 Cal.App.3d 843, 848.) However, “[t]he rule of ‘exclusive concurrent jurisdiction’ is not jurisdictional in the sense that failure to comply renders further proceedings void. Thus, the second court’s erroneous refusal to stay proceedings does not void relief granted by that court. [County of San Diego v. State of Calif. (1997) 15 C4th 68, 88–89.]” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2010) ¶ 3:123.56, p. 3-39.)
The superior court has jurisdiction of civil partition actions and, generally, the proper venue for trial of a civil partition action is the county in which the real property is situated. (Code Civ. Proc., § 872.110, subds. (a) & (b)(1).)
Rather, the rule of exclusive concurrent jurisdiction may be raised by a party in support of a request that the second trial court abate or stay the action before it, or in some cases dismiss it. However, the rule must be raised as an affirmative defense in the answer where factual issues must be resolved. Here, factual issues exist, namely, the precise issues involved in the action pending in San Diego and the potential impact of its resolution on the partition action. (See Weil & Brown, supra, ¶ 3:123.60, p. 3-39, citing Code Civ. Proc., § 597.) If not raised as an affirmative defense in the answer, the grounds for abatement of the second action are forfeited. (Id. at ¶ 3:123.61, p. 3-39.) Here, appellant did not raise the grounds for abatement as an affirmative defense in her answer, thus forfeiting the issue. Indeed, appellant did not call the existence of the San Diego action to the trial court’s attention until respondents brought a motion to enforce the parties’ settlement agreement regarding listing the trust property for sale. By that time, by entering into the settlement agreement, appellant had consented to the trial court’s exercising jurisdiction in the partition action. She had thus unquestionably forfeited her right to raise the rule of exclusive concurrent jurisdiction as a ground for abatement of the present action.
II. ABUSE OF DISCRETION OR VIOLATION OF DUE PROCESS IN SETTING LISTING PRICE AND SELECTING BROKER
Appellant further contends on appeal that the trial court violated her right to due process by failing to consider evidence appellant submitted at the hearing on January 29, 2010. Our review of the record demonstrates that the trial court properly considered appellant’s evidence.
Specifically, appellant asserts that she filed a responsive pleading on January 26, 2010, i.e., three days before the hearing, and that her response included two estimates from real estate experts regarding the value of the property. She contends “[t]he court refused to look at or consider either of my evaluations.... The court said that the court’s clerks had failed to get my filed copy to her in time for the hearing.” She continues: “Though [opposing counsel] handed Judge White his copy, she refused to read my two evaluations because there were no tabs on pages of the attorney’s copy.... The court said that I’d filed my response late, though it was my understanding that, given that trustees had failed to actually serve me their second supplement until the 25th of January, I was allowed to file my response within 3 days of the hearing.” Appellant concludes that “Judge White made this order after refusing to either read or consider my evidence. She further refused to allow me to speak into the record my formal objection to that order.”
The record demonstrates otherwise. The trial court noted that she had not received the paperwork, but stated, “I’m looking at it just briefly. There may be somebody who thinks it’s worth 2.5 million. I’m not here to stand in the way of this agent getting the maximum price possible for the property.” Appellant expressed confusion at the court’s ruling, and asked if the court had considered her two evaluations. The court replied, “I looked at it, and I understood that what you wanted me to do was not to do anything today but to keep continuing it, which we’ve done now twice.” (Italics added.) The court indicated that it had made its ruling (selecting a broker and setting the listing price), and the matter was concluded.
Thus, the record explicitly states that the court considered appellant’s proffered property evaluations despite the lack of tabs and the delay in their submission. The court heard argument from respondents’ counsel regarding alleged defects in appellant’s property evaluations, and also heard responsive argument from appellant regarding the evaluations and the value of the property, before deciding the listing price. Appellant was not deprived of her right to due process.
III. LACK OF IMPARTIALITY
Finally, appellant contends that the lower court’s statement that appellant had fired her attorney, combined with the court’s purported failure to review appellant’s evidence or postpone determination of the matter, demonstrates that the court lacked impartiality. We have already determined that the court properly considered appellant’s evidence before deciding the matter, which as the court noted was before the court for the third time. Appellant’s claim therefore boils down to arguing that the court’s statement that she had fired her counsel demonstrates lack of impartiality. We disagree. Even if the statement was inaccurate, the court merely made the statement in passing and in reference to the fact that appellant had settled the matter with the advice of counsel, and then began representing herself. (“[W]e’ve had three hearings on this. You’ve had counsel. You fired your counsel for whatever reason. You’re here pro per.”) The court’s statement did not demonstrate any unfairness or an inability to decide the case in a just and equitable manner.
DISPOSITION
The order is affirmed. Costs on appeal are awarded to respondents.
We concur: EPSTEIN, P. J., SUZUKAWA, J.