Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County. Ct. No. 148737, John D. Kirihara, Judge.
Allen, Fagalde, Albertoni & Flores, Michael A. Fagalde, and L. Carmen Ramirez for Defendants and Appellants.
Canelo, Wilson, Wallace & Padron and James P. Padron for Plaintiffs and Respondents.
OPINION
Poochigian, J.
INTRODUCTION
This appeal presents the unfortunate situation of two brothers and their spouses who purchased and operated a Merced County almond orchard without a clear agreement or understanding regarding the rights and responsibilities arising from their operation of the property over three crop years, 2003-2005. Appellants, the co-owners of the agricultural land in Atwater, appeal from a judgment awarding respondents the sum of $22,023.03 for their half of net profits resulting from the production and sale of an almond crop in 2005.
STATEMENT OF THE CASE
On August 3, 2005, respondents Monico and Graciela Padilla (respondents) filed a complaint for partition of real property in Merced County Superior Court (Code Civ. Proc., §§ 872.210, 872.230, 872.820). Respondents named appellants Atilano and Olga Padilla (appellants) as defendants and prayed for the partition of agricultural land commonly known as 10236 Rose Avenue in Atwater. Respondents also prayed for expenses incurred in obtaining a title report, costs of partition, and such other and further relief as the court might deem proper.
On March 3, 2006, appellants filed an answer alleging the complaint failed to state facts sufficient to constitute a cause of action and setting forth 19 affirmative defenses.
On the same date, appellants filed a cross-complaint for partition of real property. The cross complaint sought partition and sale of the subject property, according to the respective rights of the parties, for expenses incurred in obtaining a title report, costs of partition, and such other and further relief as the court might deem proper.
On April 4, 2006, respondents filed a general denial to the cross-complaint.
On August 10, 2006, the court filed case management conference findings and order stating: “Plaintiff’s counsel reports the matter has settled. Dismissal of entire case expected shortly.” On October 10, 2006, the court filed additional case management conference findings, stating: “Counsel report matter has settled in principle. Dismissal of entire case expected shortly.”
The August 10, 2006, case management conference findings and order do not specify the nature and terms of the purported settlement. Neither the record on appeal nor the superior court file includes a reporter’s transcript of the proceedings of the case management conference.
On October 18, 2006, the court granted appellants’ request for dismissal of cross-complaint without prejudice. On October 25, 2006, appellant Atilano Padilla filed a pleading substituting himself for retained counsel. On December 26, 2006, appellant Olga Padilla filed a pleading substituting herself for retained counsel.
On June 14 and 20, 2007, respondents and appellants filed their respective settlement conference statements.
On January 3, 2008, the court entered judgment in favor of respondents in the sum of $68,862.50.
The court calculated the award in the following manner: “$4,200.00 for one half of the fair rental value of the residence located at the subject property for the calendar year 2005; $46,961.50 for one half the crop proceeds from 2005; and $17,701.00 for one half the crop insurance proceeds from 2005.”
On January 17, 2008, appellants moved for an order setting aside and vacating the January 3, 2008, judgment and requesting “a finding establishing the scope of trial.” In the alternative, appellants moved for “a new trial on all of the issues.”
On February 7, 2008, respondents filed written opposition to the motion.
On February 22, 2008, appellants filed a written reply to respondents’ opposition.
On March 18, 2008, the court filed an order granting appellants’ motion “to the extent that [Appellants] are permitted to present evidence of expenses for the crop year 2005 which may offset the amount of the Court’s original Judgment for gross income received for the crop year 2005.” The court also stated: “If the parties are unable to agree upon the amount for offset, if any, then the disputed amounts may be set for further hearing and determination by the Court.”
On November 19, 2008, appellants filed documentary evidence of expenses offsetting the amount of the original judgment and moved to modify the judgment.
On December 12, 2008, respondents filed written opposition to the motion to modify the judgment.
On June 19, 2009, the court entered a ruling on request to modify the judgment. The court noted “[t]he parties have agreed that expenses of $31,559.47 should be subtracted from the original judgment of $68,862.50.” The court further reduced the judgment by $15,280 for federal and state taxes paid by appellants, leaving a net judgment of $22,023.03.
On June 30, 2009, appellants moved for reconsideration of the June 19, 2009, ruling (Code Civ. Proc., § 1008).
On July 27, 2009, respondents filed written opposition to the motion for reconsideration.
On September 3, 2009, the court denied the motion for reconsideration.
On October 8, 2009, the court filed a formal order after hearing denying the motion for reconsideration.
On December 10, 2009, appellants filed a notice of appeal from the June 19, 2009, ruling on request to modify judgment.
Appellants did not expressly appeal from the monetary judgment entered January 3, 2008. Rather, they appealed from the ruling on their request to modify judgment entered June 19, 2009. Their statement of appealability provides: “This judgment finally disposes of all of the issues between the parties at the Trial Court level pursuant to California Code of Civil Procedure § 577 [judgment defined] and therefore is subject to appeal pursuant to California Code of Civil Procedure § 904.1.” On April 8, 2010, this court filed an order finding the December 10, 2009, notice of appeal to be timely filed. Our April 8, 2010, order addressed the timeliness of appellants’ notice of appeal but not the appealability of the underlying order or judgment. “ ‘[W]here an amended judgment is entered after proceedings on a motion for a new trial and pursuant to the provisions of section 662 of the Code of Civil Procedure [caused tried by court; powers of judge on motion for new trial], which second judgment is a material departure from the first one entered, an appeal lies solely from the second judgment, the first judgment thus being nonappealable.’ ” (O’Connor v. Skelton (1961) 195 Cal.App.2d 612, 614, quoting Rutledge v. Rutledge (1953) 119 Cal.App.2d 112, 113; Avery v. Associated Seed Growers, Inc. (1963) 211 Cal.App.2d 613, 622.)
On April 8, 2010, a panel of this court deemed the notice of appeal to be timely filed.
STATEMENT OF FACTS
In 2003, appellants and respondents, two brothers and their spouses, bought a 40-acre parcel of agricultural property on Rose Avenue in Atwater. The property consisted of an almond grove and a residence, and they purchased the property from Joseph J. DeGregori and Dolores M. DeGregori. The $395,000 purchase price entailed a $100,000 down payment.
Testimony of Respondent Monico Padilla
Monico Padilla (Monico) testified he had farmed almonds and peaches since 1993. He owned a ranch on Westside Boulevard which was planted with Monterey variety almonds. Atilano and his family lived in an apartment on Monico’s Westside Boulevard ranch. Atilano paid Monico about $350 a month for the apartment. Monico encouraged Atilano to participate in the purchase of a ranch to improve his financial situation. The ranch on Rose Avenue was planted with Carmel and Nonpareil variety almonds. Monico paid $71,501 of the purchase price for the Rose Avenue property and Atilano Padilla (Atilano) paid about $30,000 because Monico purportedly owed his brother some money on an earlier loan.
Monico said he and Atilano originally agreed to share the duties of pruning, irrigating, disking, picking, and harvesting. Monico said he ultimately arranged for the pruning in calendar year 2003 and did all the spraying but that he and Atilano shared the responsibilities of irrigation. Atilano lived in a mobile home on the Rose Avenue ranch and the irrigation pump was about 20 feet from the house. At the time of harvest, Monico offered to do the job for $50 per hour as opposed to an outside harvester who might charge $80-$100. According to Monico, Atilano agreed to “go half” and pay $25 per hour. After Monico completed the harvest, he made out a bill for harvesting costs of $1,125, representing Atilano’s share of the costs. Atilano declined to pay the bill. However, Monico ultimately paid Atilano the sum of $20,940.55 as his share of the 2003 almond crop proceeds.
Later in his testimony, Monico said Atilano paid another person to complete Atilano’s share of the pruning.
Monico and Atilano equally shared the net proceeds of the 2003 crop. The payment of Atilano’s share of the 2003 crop took place at Atilano’s home on November 24, 2004. Monico said he contacted Atilano several times before the two met on November 24, 2004 to handle the 2003 crop payment. On that same day, Monico paid Atilano the sum of $2,763.00 as Monico’s share for the drilling of a new domestic well on the property. Atilano was the primary user of the new well because he resided on the property. Monico said he and Atilano agreed that the fair rental value of the house on the Rose Avenue ranch was $700 a month, but Atilano never paid any rent.
Monico testified that, after the harvesting of the 2003 crop, he and Atilano had no further discussions about the working of the ranch until April 2004. In April, Atilano told Monico the latter was going to do all the work for calendar year 2004 because Atilano did not want to continue working with Monico. In Monico’s opinion, Atilano believed the almond crop had no value. Monico testified, “I didn’t know if I was going to gain or lose, but we couldn’t abandon the ranch.”
Monico said he and Atilano signed a Spanish-language document by which Monico would be the sole beneficiary of the 2004 crop and would pay all of the production costs, mortgage payments, and taxes for 2004. Monico said Atilano did not help him with any of the labor or production efforts for the 2004 crop and did not make any demands for a portion of the 2004 crop. Monico also said he and Atilano began talks about splitting the property in 2004. Monico said Atilano “was no longer in agreement.” By the end of 2004, the price of the almond crop almost doubled and Atilano and his attorney sent Monico a letter “saying that they were going to take over the 2005 crop.”
Monico said he and Atilano arranged for crop insurance on the 2004 almond crop. This took place in December 2003, prior to the new crop year. Monico orally agreed to pay the crop insurance premium. At some point, Atilano received a crop insurance check for $35,402, but Monico did not receive any portion of it, although his name appeared on the face of the check. Monico estimated the net earnings after mortgage payments, taxes, and operational costs should have been between $50,000 and $60,000 during the 2005 crop year but Monico did not receive any portion of that sum. Monico also testified that he did not receive any rental income from Atilano, although Atilano and his family lived in the ranch residence. Atilano also rented out the tractor on the ranch but never shared the rental fees with Monico.
Monico said Atilano consulted an attorney before the end of the calendar year. The attorney transmitted a letter stating that Atilano was going to “get the 2005 crop.” Monico said he never agreed that Atilano could control the property for 2005 and keep the crop. Nevertheless, Monico did not pay any of the costs associated with the ranch during the 2005 calendar year. Monico testified that Atilano paid all of the costs of the property for 2005 including mortgage payments. Monico did not agree that Atilano would pay for the 2005 costs. Early in his testimony, Monico said he did not formally object to Atilano making the 2005 payments. Later in his testimony, Monico said he told Atilano in 2005, “ ‘I’m not going to let you have the crop because we never agreed that you were going to get it.’ ” Monico said the 2005 crop and proceeds from crop insurance generated a total of $129,325 in income, but Atilano did not share any portion of that sum with Monico. Monico said he was suing for his share of the 2005 crop, his share of the rent of the Rose Avenue house, and his 2003 harvesting bill of $1,125.
Testimony of Appellant Atilano Padilla
Atilano said Monico paid more on the purchase price of the Rose Avenue ranch because he owed Atilano $20,000 from an earlier loan. Atilano said he loaned the money to Monico in “four parts” some 10 years earlier, and Monico did not pay any interest on the loaned money either before or after the purchase of the Rose Avenue property. Atilano said he wanted to coordinate the repayment of interest with the payment of rent on the Rose ranch home. According to Atilano, Monico wanted him to work the ranch in lieu of paying rent. Atilano maintained the agreed rental value of the mobile home on the Rose Avenue ranch was $500 a month. Atilano did not pay Monico any rent “[b]ecause he owed me a lot of interest money from when we gave the payment for the ranch.…”
A short time after they made their purchase, appellants and respondents experienced problems in the management and operation of their investment property. Although Atilano had an “outside job” at Turlock Dairy Corporation, he maintained that he carried out 95 percent of the work during the 2003 crop year. Atilano said at one point he and Monico were advised to spray their trees but Monico refused and they lost 9, 000 pounds of almonds because of a worm infestation. They nevertheless harvested a crop and Atilano paid Monico approximately $1,125 in cash for the harvesting services. Atilano realized there were earnings from the 2003 crop but Monico declined to give his share of proceeds to him. Atilano said in the summer of 2004 he went to Del Rio Nut Company, the packing plant that purchased the nut crop, to get the records for the 2003 crop. Atilano said he asked Monico for his share of proceeds several times, but Monico did not pay until Atilano’s attorney sent him a letter in November 2004.
In 2004, the parties orally agreed to a reciprocal arrangement for management of the property. According to appellants’ understanding of that agreement, respondents were to farm the property for the 2004 crop year and appellants were to farm the property for the 2005 crop year. Atilano testified that he and Monico made an agreement in 2004 by which Monico would keep all profits and pay all expenses for the 2004 calendar year, and Atilano would keep all profits and pay all expenses for the 2005 calendar year.
The two brothers originally wrote their agreement on a sheet of notebook paper. Monico did not want to sign it in that form, and Atilano found a Livingston notary public to prepare a more formal document. Appellant Atilano Padilla and respondent Monico Padilla signed a uniform statutory power of attorney form for business operating transaction and agricultural land management. The form listed appellant Atilano Padilla as principal and respondent Monico Padilla as agent (attorney-in-fact). The May 3, 2004, power of attorney provided in relevant part:
We note: “California notaries public are prohibited from performing any duties that may be construed as the practice of law. Among the acts which constitute the practice of law are the preparation, drafting, or selection or determination of the kind of any legal document, or giving advice in relation to any legal documents or matters.” (Bowen, Notary Public Handbook (2010) at p. 6.)
Atilano acknowledged the power of attorney did not grant him authority to operate the ranch in 2005. According to Atilano, “He [Monico] just said that he would hand the ranch over to me.” Based on the 2004 power of attorney, appellants expected that a similar agreement would prevail in the 2005 crop year. Atilano testified, “I told him [Monico] to make me a letter like the one that I had made so that we don’t have any problems.…” According to Atilano, respondents made all payments and kept all revenues for the 2004 crop year, and he and his wife made all payments and kept all revenues for the 2005 crop year. Atilano said Monico reimbursed him for all expenses that Atilano had previously paid for the 2004 calendar year. Atilano said he allowed Monico to keep all crop revenue and crop insurance proceeds for the 2004 crop year because “he was going to let me have it in 2005 just as he had it.” When Atilano signed the power of attorney, he understood he would have the right to operate the Rose Avenue property during the 2005 calendar year. According to Atilano, Monico acknowledged this understanding when they both signed the power of attorney in 2004. Based on that understanding, Atilano did not ask for any revenue from the 2004 crop and kept all the revenue from the 2005 crop. Atilano said he made all payments during the 2005 crop year and did not expect any reimbursement from Monico. Atilano said they had arranged for 2004 crop insurance prior to signing the power of attorney. Atilano also said that he obtained a crop insurance policy for the 2005 crop year and paid the entire premium.
In August 2005, respondents filed a complaint in superior court for partition of the property. In June 2006, the property was sold for a total consideration of $840,000. After paying off the DeGregoris and certain title charges, appellants and respondents equally divided the net proceeds of $501,415.58. Despite the sale of the property, Atilano incurred a total of $12,413.93 in farming expenses during the first six months of 2006. Atilano said he advised the title company about the outstanding expenses of 2006 and the title company employees initially advised, “ ‘If he owes you anything, don’t sign.’ ” He also testified, “They told me to sign and that what was owed me for my work in 2006, they would give me.” When asked about these conflicting statements, Atilano said the advice about not signing related to proceeds “[f]or the sale.”
Additional Evidence
On October 18, 2006, appellants dismissed their cross-complaint for partition of real property and relieved their counsel from the case. On June 14, 2007, respondents filed a settlement conference statement alleging appellants had lived on the property for at least 40 months without paying rent or expenses or accounting for 2005 crop proceeds. Respondents acknowledged “the property was sold and gross sale proceeds were divided by the parties.” However, respondents contended that $253,295 in claims still had not been resolved despite the division of gross sale proceeds. Those claims consisted of:
“a. $28,000.00 (40 months x $700.00) for Fair Rental Value;
“b. $35,402.00 Crop Insurance for 2005 paid by [respondents];
“c. $25,900.00 Almond Harvesting Costs paid by [respondents];
“d. $93,993.00 [2005] Almond Crop kept by [appellants];
“e. $70,000.00 Down Payment made by [respondents].”
Appellants maintained respondents had no right to recover any sum because the parties had agreed that respondents would pay expenses and keep proceeds from the 2004 crop and appellants would pay expenses and keep proceeds from the 2005 crop.
According to appellants’ counsel, superior court Judge John D. Kirihara conducted an in camera hearing on September 17, 2007, and suggested that the parties exchange discovery in an expedited fashion and agreed to hear testimony to determine the scope of the trial. The court took evidence on October 15 and 29, 2007, and heard the arguments of counsel on November 26, 2007. Addressing claims arising during the 2005 calendar year, the court entered judgment for respondents in the sum of $68,862.50 on January 3, 2008. The award consisted of “$4,200.00 for one half of the fair rental value of the residence located at the subject property for the calendar year 2005; $46,961.50 for one half the crop proceeds from 2005; and $17,701.00 for one half the crop insurance proceeds from 2005.”
The law and motion minute order for September 17, 2007, simply states: “Unreported chambers conference is had with court and counsel. Stipulation is had to continue matter.”
On March 14, 2008, the court conducted a contested hearing on the appellants’ motion for a new trial or to vacate judgment. During a colloquy with counsel, the trial court observed:
At the conclusion of the hearing, the court ordered appellants’ counsel to provide respondents’ counsel with a declaration and supporting documents to establish expenses incurred for the 2005 crop year.
On December 23, 2008, the court conducted a contested hearing as to the documentation of 2005 crop expenses. Respondents’ counsel noted the parties had agreed to reduce the court’s judgment of $68,862.50 by $31,559.47 but then noted several disputed items relating to calculation of federal income tax liability for the crop production. The court took the matter under submission. On June 19, 2009, some six months later, the court filed a ruling on request to modify judgment. The court declined to allow a deduction for labor and depreciation incurred to produce crops for the 2005 calendar year. However, the court did reduce the judgment by $14,173 in federal income taxes and $1,107 in state income taxes paid by appellants for a net judgment of $22,023.03. On October 8, 2009, the court denied appellants’ motion for reconsideration of the June 19, 2009, ruling.
DISCUSSION
THE TRIAL COURT DID NOT COMMIT REVERSIBLE ERROR
Appellants offer a three-pronged attack on appeal. First, they contend the trial court committed reversible error per se when it prevented them from completing their case-in-chief, and when it rendered a judgment before hearing all of the evidence in the matter. Second, appellants contend respondents’ complaint for partition was moot and beyond the court’s jurisdiction because the underlying real property had been sold and the proceeds divided before trial. Third, appellants contend their due process rights were violated when the trial court allowed the moot partition action to continue on “a new, unplead legal theory” without notice to the defense or an amendment to the complaint.
The Case-in-Chief
Appellants initially contend the trial court prevented them from completing their case-in-chief, and the court committed reversible error by rendering a judgment on the matter before hearing all of the evidence.
Appellants asserted a similar contention in their motion to set aside and vacate judgment or, in the alternative, for new trial:
Code of Civil Procedure section 906 states in relevant part:
“[A] party seeking a new trial on all issues is an ‘aggrieved party’ when only a partial new trial is granted and may appeal therefrom. [Citations.]” (Liodas v. Sahadi (1977) 19 Cal.3d 278, 285.) If a new trial is ordered as to some issues but not as to others, the order granting the new trial is appealable by any party aggrieved by the order, including the moving party who sought a new trial as to all issues. (Cobb v. University of So. California (1996) 45 Cal.App.4th 1140, 1144.) Where an aggrieved party fails to appeal from an order granting only a limited new trial, issues as to which new trial was denied are beyond appellate review. (Ferraro v. Pacific Fin. Co. (1970) 8 Cal.App.3d 339, 356 (Ferraro).) “[A] failure to timely appeal the partial new trial order bars later review of the order in its entirety--even as to those issues on which a new trial was denied.” (1 Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2009) ¶ 2:141.2, p. 2-72.4, citing Ferraro, supra, 8 Cal.App.3d at pp. 355-356.)
In the instant case, appellants sought a new trial on the ground the trial court failed to allow them to complete their case-in-chief. The court granted a limited new trial on the issue of offsets against the revenues of the 2005 crop year. Appellants did not file an appeal from the partial new trial order, waiting until this appeal from the judgment to raise the matter. In view of the holding in Ferraro, appellants’ contention about the failure to complete their case-in-chief must be deemed beyond the scope of appellate review.
Assuming the issue is cognizable on appeal, we acknowledge a party has a fundamental right to present evidence at trial in a civil case:
right to offer relevant and competent evidence on a material issue Elkins v. Superior Court ElkinsAppellants characterize the superior court’s action as a denial of “an opportunity to testify on [their] own behalf, present evidence helpful to proving [their] defense, and … an opportunity to present rebuttal to the Respondent’s [sic] testimony that had already been admitted into evidence.”
Our independent review and recitation of the procedural and factual history of this case, set forth above, reveals the superior court admitted a substantial amount of relevant and competent evidence on the material issues raised by the parties. A great deal of confusion in the trial court was attributable to the fact that certain agreements or arrangements by the parties were never reduced to writing. Nevertheless, the parties articulated their views of the purchase, operation, financial management, and disposition of the Rose Avenue ranch in substantial detail. From our reading of the superior court file and record on appeal, the parties reached agreement as to the disposition of proceeds for each relevant crop year with the exception of certain offsets denied by the superior court for crop year 2005. Appellants have not offered a substantive challenge to those denied offsets.
Code of Civil Procedure section 475 states in relevant part:
An appellant has the burden to show not only that the trial court erred but also that the error was prejudicial. Error is prejudicial if it is reasonably probable that a result more favorable to the appellant would have been reached absent the error. A probability in this context means “ ‘merely a reasonable chance, more than an abstract possibility.’ ” (Red Mountain, LLC v. Fallbrook Public Utility Dist. (2006) 143 Cal.App.4th 333, 348, quoting Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.)
In the instant case, appellants vigorously assert that error occurred because they were allegedly denied their right to fully present a case-in-chief. However, they do not explain how that error was prejudicial, particularly where the few remaining disputed items--certain offsets--are not substantively addressed on appeal. In light of these facts and circumstances, their contention must be rejected.
B. Mootness
Appellants contend the complaint for partition of real property was moot after the almond grove was sold on June 26, 2006, and the proceeds were distributed between the parties. Appellants point out the respondents’ complaint for partition made “absolutely no claim for monies due stemming from the partnership operations or other partnership matters.” Therefore, they contend “[t]he Court was thereby left with no effective relief to grant on the Complaint, thus making it moot.”
For purposes of partition, the court may, in all cases, order allowance, accounting, contribution, or other compensatory adjustment among the parties according to the principles of equity. (Code Civ. Proc., § 872.140.) This section “makes clear the court’s authority to order compensatory adjustment for such items as common improvements, unaccounted rents and profits, and other matters for which contribution may be required.” (Cal. Law. Revision Com. com., 17A West’s Ann. Code Civ. Proc. (1980 ed.) foll. § 872.140, p. 451.) A court may generally provide an accounting in a partition action under Code of Civil Procedure section 872.140 but cannot do so at the expense of a defendant’s constitutional right to notice for purposes of a default judgment under Code of Civil Procedure section 580. (Finney v. Gomez (2003) 111 Cal.App.4th 527, 538-539 (Finney).)
The instant case does not entail a default judgment under Code of Civil Procedure section 580, and the limitation imposed by the Finney case is inapplicable here. The superior court was authorized to make a compensatory adjustment under Code of Civil Procedure section 872.140.
C. Pleading
Appellants lastly contend the trial court violated their rights to due process by allowing the partition action to continue on a “new, unplead legal theory without notice to appellant[s] or an amendment to the complaint.”
Appellants specifically argue:
“In the instant appeal, the original complaint filed in August 2005 sought only to have the court partition real property that was co-owned by the parties. [Citation.] In June of 2007, one year and ten months later, Respondents filed a Case Management Conference statement where they admitted that the property had been sold and for the first time alleged that he was owed over $253,000.00 for breaches of partnership agreements and other partnership business [matters]. [Citations.] Appellant[s] [were] not given notice that an amendment to the pleadings had been granted by the Court. Appellant[s] did not know what years, what facts, or under what theories the Respondent[s] [were] proceeding. Appellants were not afforded [their] procedural rights as to examine the complaint, or challenge the pleadings afforded to parties involved in legal actions in California.
“Appellant[s] did not have the opportunity to appreciate the new scope of the amended complaint, the scope of the hearing, nor did [they] have the opportunity to prepare an adequate defense. Simply put, Appellant[s] could not have prepared for an action which scope was known only to Respondents.”
In California, it is a fundamental concept of due process that a judgment against a defendant cannot be entered unless he or she was given proper notice and an opportunity to defend. (In re Marriage of Lippel (1990) 51 Cal.3d 1160, 1166.) Every partition action includes a final accounting according to the principles of equity for both charges and credits upon each cotenant’s interest. Credits include expenditures in excess of the cotenant’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.)
Code of Civil Procedure section 475 states:
“The court must, in every stage of an action, disregard any error, improper ruling, instruction, or defect, in the pleadings or proceedings which, in the opinion of said court, does not affect the substantial rights of the parties. No judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect was prejudicial, and also that by reason of such error, ruling, instruction, or defect, the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probably if such error, ruling, instruction, or defect had not occurred or existed. There shall be no presumption that error is prejudicial, or that injury was done if error is shown.”
While orderly procedure demands a reasonable enforcement of the rules of pleading, the basic principle of the code system of California is that the administration of justice shall not be embarrassed by technicalities, strict rules of construction, or useless forms. (Buxbom v. Smith (1944) 23 Cal.2d 535, 542.) The manner of pleading becomes unimportant when a case is fairly tried on the merits under circumstances which indicate that nothing in the pleadings mislead the unsuccessful litigant to his or her prejudice. Prejudice is never presumed; it is incumbent upon appellants to affirmatively show they have been prejudiced by an alleged error. (Ravel v. Hubbard (1952) 112 Cal.App.2d 255, 258.) In the case of civil state law error, this standard is met when “there is a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have been reached.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.)
Appellants maintain respondents’ “unnoticed, unserved amendment of the complaint” materially prejudiced their opportunity to “prepare a legal defense in this case in the way of evidence, testimony and witnesses.” At the September 3, 2009, hearing on motion for reconsideration, the trial court frankly acknowledged that a number of factors had an impact on the litigation between the parties. According to the judge, appellants had experienced changes in counsel during the course of the litigation; the case was tried in piecemeal fashion over a period of time; the passage of time had caused memories to fade; and the parties had “partly written understandings about things [that] were going on and also, you know, verbal agreements or handshake agreements or what have you, that were not memorialized in writing that also caused … one side or another to have a different view of what the agreements were.”
In the instant case, the court rendered a January 3, 2008, judgment in the amount of $68,862.50. The court granted a partial new trial on March 18, 2008, and permitted appellants to present evidence of expenses for the 2005 crop year “which may offset the amount of the Court’s original Judgment for gross income received for the crop year 2005.” Respondents subsequently agreed to a deduction of $31,559.47 from the gross judgment amount based upon appellant’s “verified expense reports and receipts for the 2005 farming season.” On November 19, 2008, appellants filed a motion to set a hearing, noting two areas of disputed offsets for the 2005 crop year – the payment of state and federal taxes and the value of labor and depreciation cost of farm equipment in producing the 2005 crop.
In the June 19, 2009, ruling on request to modify judgment, the court rejected the argument that labor and depreciation were deductible from the 2005 crop proceeds. However, the court granted a deduction of $15,280 for state and federal tax liability, leaving a net judgment of $22,023.03 in favor of respondents. On appeal, appellants do not expressly challenge the trial court’s refusal to grant a deduction for labor and depreciation or the net amount of judgment set forth in the June 19, 2009, ruling on request to modify judgment.
A judgment will not be reversed except for error prejudicial to the appellant, i.e., error which substantially affects his or her legal rights and obligations. (Erskine v. Upham (1942) 56 Cal.App.2d 235, 254.) While appellants claim they did not have “a full and fair opportunity to present [their] evidence” in the trial court, they do not substantively address the remaining disputed legal issue – deductibility of labor and depreciation – in this appeal. An appealed judgment is presumed to be correct and prejudicial error must be affirmatively shown. (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 267.) Appellants have not made such a showing here and their contention must be rejected.
DISPOSITION
The judgment is affirmed. Costs are awarded to respondents.
WE CONCUR: Gomes, Acting P.J., Detjen, J.
“A power of attorney is legally sufficient if all of the following requirements are satisfied:
“(a) The power of attorney contains the date of its execution.
“(b) The power of attorney is signed either (1) by the principal or (2)in the principal’s name by another adult in the principal’s presence and at the principal’s direction.
“(c) The power of attorney is either (1) acknowledged before a notary public or (2) signed by at least two witnesses who satisfy the requirements of Section 4122.”
Probate Code section 4402, governing statutory form powers of attorney states in relevant part:
“A statutory form power of attorney under this part is legally sufficient if all of the following requirements are satisfied: [¶]... [¶]
“(c) The signature of the principal is acknowledged.”