Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. PC036701, Melvin D. Sandvig, Judge.
Law Offices of G. Marshall Hann and G. Marshall Hann for Plaintiff and Appellant.
Michael P. Rubin & Associates and Michael P. Rubin for Defendant and Respondent.
SUZUKAWA, J.
Thomas G. Martin, an individual, and acting as trustee of the Thomas G. Martin Trust (hereinafter referred to as Thomas), appeals from the order dismissing the partition action he filed against his former wife, Ruth Martin (Ruth). As we explain, there is no remaining controversy between the parties, and we dismiss the appeal.
Because they share the same last name, we will refer to the parties by their first name, with no disrespect intended.
FACTUAL AND PROCEDURAL BACKGROUND
A final judgment of dissolution of the marriage of Thomas and Ruth, dated May 22, 2000, divided the marital property but awarded a parcel of commercial property in Santa Clarita (the property) to both parties in equal interests as tenants-in-common. Thomas leased out the property, managed it, and paid Ruth 50 percent of the rent he collected.
On May 4, 2005, Thomas filed a complaint for partition against Ruth. The complaint sought a sale of the property, and a division of the net proceeds of the sale. It also requested attorney fees.
There is no copy of the complaint in the record.
On June 13, 2005, Ruth answered the complaint and alleged various affirmative defenses, including claims for credits and offsets in connection with alleged fraudulent misrepresentations made by Thomas. Ruth also filed a complaint against Thomas for partition of the property, but it was subsequently dismissed.
There is no copy of the answer in the record.
The superior court set the matter for a mandatory settlement conference (MSC). At the March 29, 2006 MSC, the parties orally agreed to sell the property and equally divide the net proceeds.
There is no reporter’s transcript of this MSC or even a minute order. The information about this hearing comes from the parties’ declarations and pleadings.
On June 2, 2006, counsel appeared in superior court and represented that the parties had agreed on a broker to list and sell the property. The court issued an order appointing the broker. The court also set a trial date of October 23, 2006.
On August 21, 2006, the parties accepted an offer for the sale of the property. The parties executed a purchase agreement and escrow instructions. Neither party disputes that the escrow instructions do not contain a provision regarding the payment of attorney fees. The escrow instructions memorialized the parties’ earlier agreement in principle to equally distribute the net sale proceeds without offsets.
There is no copy of the escrow instructions or purchase agreement in the record. The contents of the documents come from counsel’s declarations.
On September 27, 2006, counsel appeared in superior court for a scheduled final status conference. Thomas was represented by a “contract” attorney, Maureen Boyd, hired by his attorney of record, Marshall Hann. At the hearing, Ruth’s counsel stated, “[T]he case has resolved. The property is in escrow. Most, if not all, of the conditions are satisfied. I believe it’s going to be closing within two to three weeks. I think it would be appropriate to vacate the FSC and the trial dates and put this over for about a 45-day OSC re dismissal.” Boyd stated, “That would be fine as long as they don’t dismiss the case at this point. That’s fine with the plaintiff.” The court then scheduled the matter for an OSC re dismissal to be heard on November 15, 2006.
On October 31, 2006, immediately after escrow closed on the property, Thomas’s attorney demanded that the escrow company retain the funds from the sale of the property based on his pending claim for attorney fees.
At the November 15, 2006 hearing on the OSC re dismissal, Thomas’s attorney represented to the court that the case had not been settled, and requested a continuance in order to allow him to file a motion for attorney fees. He stated, “At the last hearing the [contract] attorney’s notes to me stated that defense counsel had represented to the court the case was completely settled. That’s not true. We’re prepared to suggest that there be a judgment for a partition. If [Ruth’s attorney] is no longer [interested] and remains uninterested in going forward with his cross-complaint, then we can do this by motion for attorney fees and costs and/or memorandum of costs following judgment.” Ruth’s attorney then confirmed that she would not be proceeding on the cross-complaint and proposed that the matter be dismissed since the property had been sold. The court suggested that it continue the matter 90 days for “a further status conference OSC re dismissal” so that Thomas’s attorney could file a motion for attorney fees. With the approval of counsel, the court ordered the money from the escrow to be distributed. The hearing on the OSC was continued until February 15, 2007.
On January 11, 2007, Thomas filed a motion seeking attorney fees of $61,077 plus costs of $2,551, pursuant to Code of Civil Procedure section 874.010 and Civil Code section 1717. In a declaration submitted with his moving papers, Thomas’s counsel stated, “Plaintiff has secured what he sought in a simple and straightforward four page lawsuit. Partition of the co-owned property by sale has finally been accomplished.”
In a declaration submitted with his reply to the opposition to the motion, Thomas’s counsel stated, “Your Declarant has never settled the entire case. The most I have done (after having to bring several Ex Parte Applications with Court Orders), is to agree to the voluntary listing and selling of the real estate. I have never agreed to end this case upon the selling of the real estate. The letters I have attached not only preserve Trial in this matter, but also preserve the right to claim attorney fees.”
At the February 15, 2007 hearing on the OSC and the motion for attorney fees, the trial court stated, “Well, the court finds there was no prevailing party [be]cause the parties evenly split the proceeds from the sale of the property. So you can’t say the plaintiff prevailed since the defendant’s entitled to half the proceeds. And there wasn’t — as far as the partition, there wasn’t a showing demonstrating that the attorney fees spent were for the common benefit of the property at issue. And [Civil Code section] 1717 doesn’t apply because it wasn’t per contract; it was for partition.” It then denied Thomas’s motion for attorney fees and ordered the case dismissed.
The court’s minute order states that the matter was dismissed “under the provisions of Sections 225 and 664.6 of the California Code of Procedure.”
On appeal, Thomas contends that the court erred in dismissing the action pursuant to Code of Civil Procedure section 664.6 (section 664.6) because there was no written stipulation or settlement agreement and no oral statement of settlement was made in court.
The parties agree that the court could not have properly dismissed the case pursuant to Code of Civil Procedure section 225, which refers to jury selection.
DISCUSSION
No Controversy Remains to Be Resolved
A review of the facts reveals the following. The property that was the subject of the partition action has been sold. The parties agreed to divide the net proceeds equally, and the proceeds have been disbursed. No other claim related to the property remains. The only other issue raised in the trial court was Thomas’s claim for attorney fees. Although Thomas suggested that he was entitled to a trial on the issue, he agreed to file a motion for attorney fees. The trial court denied his request for fees, and Thomas’s appeal does not address that order. Is there a controversy that remains for this court to resolve? The simple answer is no.
In response to our Government Code section 68081 letter, Thomas claims that he intended to appeal the denial of attorney fees and the court’s refusal to set the matter for trial for the purpose of determining the prevailing party, but an inadvertent clerical error on his part did not make that clear. We need not decide the issue. In his briefs, he failed to address the attorney fee issue and neglected to present any argument or authority to support his perceived right to a trial. We consider the issues waived. (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 685.)
“‘“[A]n action that originally was based on a justiciable controversy cannot be maintained on appeal if all the questions have become moot by subsequent acts or events. A reversal in such a case would be without practical effect, and the appeal will therefore be dismissed.” (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 642, p. 669.)’ (In re Dani R. (2001) 89 Cal.App.4th 402, 404.)” (People v. DeLong (2002) 101 Cal.App.4th 482, 486.) In pursuing this appeal, Thomas has lost sight of the fact that the parties no longer own the property. Given that the property is owned by a third party who is not a party in this litigation, whether the court strictly complied with the requirements of section 664.6 is nothing more than a theoretical question that has no impact on Thomas’s lawsuit. “It is settled that ‘[a]n action that involves only abstract or academic questions of law cannot be maintained. [Citation.]’ (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 642, p. 669.)” (People v. DeLong, supra, at p. 486.) It is our duty to decide actual controversies, not to give opinions upon questions that cannot possibly affect the matter that is at issue in this case. (Vernon v. State of California (2004) 116 Cal.App.4th 114, 121.) As a decision by this court cannot possibly have a practical impact on the partition action, dismissal of the appeal is warranted.
DISPOSITION
The appeal is dismissed. Respondent is awarded her costs on appeal.
We concur:
WILLHITE, Acting P. J. MANELLA, J.