Opinion
A119043A120366A120512A122220
8-26-2009
JOHN G. POLK, as Executor, etc., Plaintiff and Respondent, v. SUSAN POLK, Defendant and Appellant. In re SUSAN POLK on Habeas Corpus.
Not to be Published in Official Reports
Susan Polk, acting as her own counsel, has filed a series of appeals in this partition action (the partition action) brought by John G. Polk, as executor of the estate of Susans late husband, Felix Polk. The complaint names as defendants Susan and other family members having potential interests in real property commonly known as 728 Miner Road in Orinda, California (the property), the former family home of Susan and Felix. The property was also a subject of earlier-filed probate proceedings involving a trust (Estate of Felix Polk (2002) Super. Ct. Contra Costa Co. No. P02-01714) (the probate action). Pending the partition action, a jury found Susan guilty of the second degree murder of Felix, and her appeal in that case (the criminal action) currently awaits completion of briefing in Division One of this court (People v. Polk, A117633).
Because various parties and others mentioned in this opinion share the surname Polk, we use primarily first names, for sake of clarity (cf. In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475-476, fn. 1).
On Susans motion of December 8, 2008, we consolidate three of her appeals (A119043, A120366 and A120512) and, as previously ordered, consider at the same time a petition for writ of habeas corpus (A122220). No respondent or other interested party has filed briefing in any of these cases.
This consolidation supplants our order of December 29, 2008, that a fourth appeal by Susan in this same action would be "considered with" the prior appeals. That fourth appeal (A122311) is considered separately.
I. BACKGROUND
Susans briefing does not acknowledge an important intersection of these appeals, and the probate proceedings, with the criminal action. The second degree murder verdict would bring Susan within Probate Code provisions barring an intentional and felonious killer of a testator, trust settlor, or real property cotenant, from recovering any interest in the estate, trust or property. (Prob. Code, §§ 250-251.) This could moot most or all of the issues in these appellate proceedings except that her appeal of her criminal conviction in Division One remains unresolved. While the conviction does constitute substantial evidence of the killing for civil purposes (Principal Life Ins. Co. v. Peterson (2007) 56 Cal.App.4th 676, 684), the pendency of her appeal prevents the conviction from being final and conclusive (id., at pp. 684-685, 695; Prob. Code, § 254, subd. (a)). In the absence of a final criminal conviction, a probate court may make the determination for itself, and by a mere preponderance of the evidence (Prob. Code, § 254, subd. (b)), but the probate court here chose not to do that, deferring, in an order of March 2005, to the result in the criminal action. (Fn. 4, post.)
Probate Code section 250, for example, provides in part: "(a) A person who feloniously and intentionally kills the decedent is not entitled to any of the following:
"(1) Any property, interest, or benefit under a will of the decedent, or a trust created by or for the benefit of the decedent or in which the decedent has an interest, including any general or special power of appointment conferred by the will or trust on the killer and any nomination of the killer as executor, trustee, guardian, or conservator or custodian made by the will or trust.
"(2) Any property of the decedent by intestate succession.
"(3) Any of the decedents quasi-community property the killer would otherwise acquire under Section 101 or 102 upon the death of the decedent.
"(4) Any property of the decedent under Part 5 (commencing with Section 5700) of Division 5 [gifts in view of impending death].
"(5) Any property of the decedent under Part 3 (commencing with Section 6500) of Division 6 [surviving spouse and childrens temporary right to remain in possession]."
One could argue that it might be efficient to delay resolution of these civil appeals until Division One resolves the criminal appeal. However, with briefing incomplete in the criminal appeal, and no imminent resolution in Division One, we elect to proceed.
A.Record on Appeal/Judicial Notice
The appeals present cumulative records, each building on the record in the previous ones. Given that circumstance, requests by Susan that we take judicial notice of records from the probate action, and her undifferentiated references to those probate records, we start by setting out crucial limitations on our review.
We generally review a ruling as of the time of its rendition and in light of the evidence then before the court. (In re Zeth S. (2003) 31 Cal.4th 396, 405; Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813; People v. Keligian (1960) 182 Cal.App.2d 771, 774-775.) In assessing whether error occurred, we cannot consider later events or references to such events in the briefs. (People v. Keligian, at p. 774; Weller v. Chavarria (1965) 233 Cal.App.2d 234, 246.) Thus, while we consider three appeals together, we are limited to what was before the court at each point of claimed error.
Susan has filed requests (of April 16 and 23, 2008, and February 20, 2009) to take judicial notice of materials purportedly on file in the probate action. She correctly states that we may take permissive notice of court records in other cases (Evid. Code, § 452, subd. (d)), but her briefing tries to utilize those records in ways that exceed what judicial notice allows. Materials judicially noticed must be relevant to the issue at hand (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063) and cannot be considered for the truth of matters stated in those materials: "While courts may notice . . . public records, `we do not take judicial notice of the truth of matters stated therein. [Citations.]" (Ibid.) Susan, for example, evidently asks us to accept as evidence matters that she stated in lengthy declarations purportedly on file in the probate action. However, while judicial notice might allow us to notice that she said those things, it would not establish that they were true. "[T]he assertion of a `fact in a document that appears in a court file does not necessarily mean that that `fact is a true `fact." (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.) The same goes for findings the probate court may have made. We might, in an otherwise proper instance, judicially notice that findings were made, for example, but we could not treat the findings as evidence, in this case, that the findings were true. (Id. at pp. 1564-1565.)
But an overriding flaw in all of Susans judicial notice requests is that she does not provide certification, or equivalent assurance, that what she offers correctly reflects what is on file in the probate action. "[I]t is the original court record that is being noticed. Before the appellate court can properly act upon a request to take judicial notice of a document or other record from the trial court which is purportedly part of that record, it must be assured that the original is actually on file in the superior court and that the copy of the document or record is in fact a true and correct copy. Without such assurance the court cannot act with confidence." (People v. Preslie (1977) 70 Cal.App.3d 486, 494, fn. omitted.) Thus, beyond any other problems in the use of the copies she offers, we must deny all of her requests for lack of that assurance.
We therefore confine our review to matters that the ordinary record on appeal shows were before the trial court, in the partition action, when it made each challenged ruling. This includes any matters given judicial notice by the trial court (e.g., Sosinsky v. Grant, supra, 6 Cal.App.4th at p. 1562), but we cannot use judicial notice on appeal to augment the record with matters not presented below.
B.Review Standards
Susan provides no full overview of the action, and we begin by noting her burden on the appeals, separately addressing her writ petition in part IV (post).
An "`order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." (Schnabel v. Superior Court (1993) 5 Cal.4th 704, 718.) As the appellant, Susan is held to the burden of affirmatively showing prejudicial error (City and County of San Francisco v. Funches (1999) 75 Cal.App.4th 243, 244-245) by an adequate record (In re Kathy P. (1979) 25 Cal.3d 91, 102). Without such a showing, we cannot consider an issue further (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575) and must resolve it against her (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502). The presumption also casts the burden on her to present argument and authority on each point; otherwise, the point is deemed abandoned. (In re Sade C. (1996) 13 Cal.4th 952, 994.) An appellate court will not consider alleged error where the appellant merely complains of it, without pertinent argument. (Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 710.)
Lack of briefing from John leaves us to decide the appeals based on the record, Susans opening briefs, and oral argument. (Cal. Rules of Court, rule 8.220(a)(2).) We may reverse, however, only if prejudicial error appears (County of Lake v. Palla (2001) 94 Cal.App.4th 418, 420; Warford v. Medeiros (1984) 160 Cal.App.3d 1035, 1041-1942), and Susans burden to demonstrate error remains the same, with or without respondents briefs. (Kriegler v. Eichler Homes, Inc. (1969) 269 Cal.App.2d 224, 226-227.)
For matters of law, we presume on appeal that a trial court properly followed established law. (Ross v. Superior Court (1977) 19 Cal.3d 899, 913; Evid. Code, § 664.) For factual matters, we begin by presuming that the record contains evidence to sustain every finding and require Susan, as appellant, to demonstrate that there is no substantial evidence. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) We resolve all conflicts in favor of the judgment and indulge all legitimate and reasonable inferences to uphold it. When two or more inferences can be reasonably deduced from the facts, we are without power to substitute our deductions for those of the trier of fact. (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429; Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571.) Failure to cite all material evidence in the record, for and against a finding, waives any claim that the finding lacks support. (Foreman & Clark Corp. v. Fallon, at p. 881; In re Marriage of Fink (1979) 25 Cal.3d 877, 887-888.)
C.Context and Chronology of Events
Felix died on October 14, 2002, at the property in Orinda, pending a marital dissolution action between himself and Susan that had not yet resulted in a division of property. Susan was soon charged with his murder. She offers few record citations, but represents that she was held in custody from then until her release on bail in September 2004, and was returned to custody in April 2005, shortly before an initial criminal trial date. Meanwhile, the probate action was brought by John. Susan had resigned in December 2002 as executor of Felixs will and trustee of the Polk 1996 Trust, a revocable trust she and Felix had created for the estate. The will nominated John as executor should Susan be unable to act. Felix left five children. Adam, Eli and Gabriel Polk, born in the 1980s, were children of his marriage to Susan, while Andrew and Jennifer Polk, born in the 1960s, were not.
Susan personally participated in the probate action while on bail. A March 29, 2005 order by Commissioner and Judge Pro Tem Don Green in that action resolved her application for "Orders Removing a Trustee and for Payment of Debts," in which she evidently sought Johns removal and complained that he had mismanaged the trust. The order denied all relief but this: "Susan Polk has alleged that the trustee is attempting to sell real property in the trust for far less than its fair market value. She has provided specific and credible evidence in support of her claim. Such a sale might result in an irremediable loss for the trust, so THE COURT HEREBY SUSPENDS THE TRUSTEES POWER TO SELL, TRANSFER, ENCUMBER OR CONVEY ANY REAL PROPERTY WITHOUT FURTHER COURT ORDERuntil May 5, 2005, at 9:00 a.m., at which time the court will consider extending this order." The order also explains that the court was deferring to the criminal trial on whether Susans culpability in Felixs death destroyed her right to benefit from the estate or trust."
The probate court wrote: "Homicide charges are currently pending against [Susan] related to the death of the trustor [Felix]. That proceeding may determine that she has no entitlement to inherit from [Felix], through either the trust or his estate. The civil determination of her culpability is being deferred pending resolution of the criminal proceedings, in the interest of avoid[ing] duplicate litigation and to avoid hampering [Susan]s defense in the civil proceeding by her First [sic] Amendment rights as to the criminal proceedings. There is a circularity as to her claims, and rights, as a result. If she is determined to be sufficiently culpable as to his death to warrant her disinheritance, it would be obviously inappropriate for the trustee to have released trust funds to pay for her defense attorney in the proceedings. [¶] [Susan] acknowledges having access to about $60,000 in assets, so there does not appear to be an immediate risk to her ability to secure food, clothing or shelter."
John filed this partition action in August 2005, as executor of the estate having one-half ownership of the property. Susan, as the remaining one-half owner, and all five children were named as defendants. Susan and Eli had resided at the property while she was on bail, and Eli still resided there. The verified complaint alleged: Susan had stopped paying mortgages (for $ 428,626 and $124,122.34) on the property in May or June; the estate had avoided foreclosure only by negotiating with first and second trust deed holders; reduced payments with one of them now produced growing arrearages; the estate faced creditor claims in excess of $100,000; Susan refused to agree to sell the property; the property was under threat of foreclosure; and the estate lacked the resources to resolve the creditor claims unless the house was sold. The complaint asked that Eli vacate the property while it was marketed.
Susans answer of September 2005 admitted that the property was in foreclosure, generally denied all other allegations, faulted John for the foreclosure, stated that she "reserve[d] the right" to file against him by "counterclaim" in the probate action (see fn. 16, post), and specified her intended claims in that regard. She also alleged, in part, that this partition action and effort to oust Eli from the property was in retaliation for Elis refusal to join in a wrongful death action against her. She never filed a cross-complaint in this action.
Susan filed her handwritten answer "in pro per" but evidently had the assistance of attorney Robert A. Huddleston and his law firm for some time thereafter. A substitution of attorneys filed November 30, 2005, shows Susan substituting herself for Huddleston. But then, in a December 2005 filing, where he had a default judgment for Eli set aside, Huddleston lists himself as representing both Susan and Eli. In other filings that month, including Elis verified answer, attorney Shana Bagley from the same law offices, describes herself as representing both Susan and Eli. A minute order from a case management conference in January 2006 shows Bagley appearing on behalf of both defendants, and a filing later that same month shows Susan substituting herself in place of Bagley. From that point forward Susan acted mostly, but not exclusively, as her own counsel. She was represented by attorney Gary Wessley at a hearing in August 2006, where she also had the help of "legal runner" Valerie Harris.
No answers appear for any other children. The eldest two, Andrew and Jennifer, resided in Massachusetts, and filed declarations disclaiming any interest in their fathers estate, agreeing "to be bound by whatever decisions the court makes in this action." Adam and Gabriel, California residents, also declared their agreement to be bound, with Adam expressly supporting a sale of the property and offering to serve if appointed to accomplish the sale. Gabriel supported Adams appointment, and both supported the request that Eli be required to live elsewhere while the property was shown.
. Elis answer, unlike Susans, asserted affirmative defenses that John lacked standing to bring the action (seventh) and lacked sufficient interest to bring a partition action in that "his powers as executor" had been stayed and he was "subject to a petition of removal" (ninth and twelfth).
In December 2005, John moved for summary judgment. His counsel, Budd MacKenzie (MacKenzie), declared in support that, while he and John had been informed over the past three years of several anticipated criminal trial dates (beginning the second quarter of 2004), there was still no trial date, and no one had anticipated the long delay. There were now four civil actions "placed on hold pending the outcome of the criminal trial," including a "wrongful death/determination of rights" action, the probate action, and one Susan had filed challenging Johns authority as trustee.
MacKenzie requested, in his declaration, that the court "take judicial notice of these actions and all pleadings filed therein," but we see nothing in the record granting that request, beyond noticing whatever copies of specific records were brought up in the summary judgment papers.
As to the request that Eli vacate the property during sales efforts, MacKenzie declared that the ability to market and sell the property would be adversely impacted should Eli be allowed to remain there. MacKenzie had been advised that, following October 2003 newspaper coverage of Elis arrest for wounding a passing motorist with a pellet gun at the property (article attached), brokers and agents were concerned for their safety and no longer willing to show the property. Recently, an October 2005 article reported that Eli had been arrested for domestic violence.
Buried in a 26-page declaration in "response" to the summary judgment motion, Susan objected that MacKenzies use of news articles was "hearsay," but she never filed formal written objections (Cal. Rules of Court, rule 3.1354 [former rule 345]), a separate statement of undisputed facts (Code Civ. Proc., § 437c, subd. (b)(3)), or secured rulings to preserve any objections for appeal (id., subd. (d); Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, fn. 1; Demps v. San Francisco Housing Authority (2007) 149 Cal.App.4th 564, 566, 579).
Susan also forfeits any review of the summary judgment by not mounting any attack on the ruling in her brief or setting out all of the evidence presented. (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125-126.) The consequence is serious, for summary judgment determined the estates right to partition, and this limits her to arguing any subsidiary issues she may have preserved that are not further subject to mootness problems caused by the sale of the property (see pt. II.B., post).
John declared in support that he had tried for over two years to gain Susans cooperation, but she refused to sell. John lived in Connecticut and could not oversee the property himself, had to rely on others, and that there had been no one other than Susan and her sons to care for the property. Eli did not communicate with him and had "assumed control over the house." Susan and Eli had changed the locks and rented out part of the property without notice, approval or an accounting to the estate for rents received. Susan had demanded that representatives of the second mortgage holder refuse to provide him with information about loan status, and ceased making payments to the holder of the first and second mortgages (Citimortgage and Bank of the West). This had necessitated John paying thousands of dollars to stop a foreclosure action by Citimortgage and to negotiate partial payments to forestall foreclosure by Bank of the West. Mortgage arrearages of nearly $30,000 had mounted (as of November 2005) and were increasing by thousands of dollars each month. Property taxes of nearly $13,000 would be due in April 2006; a bail bond company had threatened foreclosure on Susans interest for $29,250, and the estate, having only $ 5,503 cash on hand, was unable to pay those claims or over $ 70,000 in other unpaid claims in the probate action. The only asset in the estate "of any significant value" was the property. The estate was being continually depleted with the passage of time, and the property would ultimately be sold at foreclosure sale if nothing were done. As MacKenzie succinctly put it, the estate could no longer afford to await the outcome of the criminal action.
Susan filed a "response" declaration in February 2006, but much of it raised fraud, incompetence, mismanagement and other matters beyond the pleadings that defined the issues for summary judgment. (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648 ["the pleadings set the boundaries of the issues to be resolved at summary judgment"; the motion "`cannot be successfully resisted by counterdeclarations which create immaterial factual conflicts outside the scope of the pleadings"].) Susan never moved to amend her pleadings. Other of her declarations actually supported the need for partition, for she confirmed that she was unwilling to sell as long as John was executor and trustee. She represented that she had petitions pending in probate court for removal, but argued, in effect, only against a need to partition by sale.
Susan requested a continuance and/or transport from custody to attend the summary judgment hearing, and the request was granted. The case had previously been before Judge Judith Craddick in Department 9, and this hearing had been first set for March 7 in her department. But with Susan unavailable for that date, it was reset for March 10 in Department 31, where the criminal proceedings were ongoing, so that Susan could attend. She attended argument before Judge Joyce Cram, Judge Craddick being on vacation. We have no reporters transcript, Susan having opted on appeal to proceed without one.
Judge Cram issued a written order granting summary judgment on March 17. She found the estate entitled to partition as a matter of right, but found dispute as to whether a sale should occur and opted to appoint a referee "to determine if sale and division of the proceeds would be more equitable than [in-kind] division of the property." She directed each party to make three nominations of possible referees, in order of preference, granted each side the right to strike one, and set the matter for an appointment on April 4, 2006.
Given that the mode of partition was left unresolved, this was more summary adjudication than summary judgment, but this is not made an issue.
Susan, whose criminal trial was in progress, sought continuances so that she might attend the referee-appointment hearing, and the court granted a series of continuances—to April 25, May 17, May 30, June 26, July 31—and then to August 11, a date when Susan was set to appear in the criminal action. Meanwhile, Eli was also being held in custody, leaving no one in charge of the property, and the estate had received an April notice of foreclosure on Susans interest in the property, for a lien of $500,000, due to her having pledged her interest to pay for services from the county public defenders office.
Susan represents in her brief that the jury verdict finding her guilty of second degree murder came on June 16, 2006.
John had nominated two referees, Michael G. Herwood and Stephen E. Anderson. MacKenzie declared that he had not known them but had interviewed them and did not have a third nominee. The earlier idea of having Adam serve, he felt, would work at this point only if Adam did not bear the full burden. Susan still had not nominated anyone, and she declared in August that she and Eli opposed any sale or referee and wanted to keep possession of the house, that they would not give John a key, and that Eli would soon be out of custody. Seemingly unaware that this action was independent of the probate action and not a forum for seeking removal of an executor, she asked that the matter be "referred back to probate" or that the partition court remove John as executor.
Susan appeared before Judge Craddick on August 11, 2006, with attorney Gary Wessley and "legal runner" Valerie Harris. The minute order reflects that MacKenzie, for the estate, favored Anderson as most qualified, and opposed attorney Bruce Reeves, one of Susans choices, as unqualified and having revealed that he "only put his name in the mix as someone who has worked for the Polks in the past and . . . a last resort capacity." Wessley advised, however, that Susan was unwilling to accept anyone, without further study, unless it was Reeves. The court appointed Reeves to take possession and determine whether to sell, ordered Susan to give him a key, and set a status review hearing for November 8.
As the review neared, Susan requested transport or a continuance to attend, saying that Wessley no longer represented her or Eli, and the court granted her a continuance to December 15, 2006, to coincide with sentencing set to occur in the criminal action.
Referee Reeves filed a preliminary report for the December date, saying he had been in discussions with Susan and Harris, among others, and immediately determined that there were no funds in the estate to pay the first and second mortgages, lien, taxes, insurance or to maintain the property, and that the premises had to be sold to pay those obligations and divide the property for the benefit of the estate. Working to assess the property with various realtors, including Roger Deakins, a friend of Susans, Reeves reported arriving at an "average" listing price of $1.5 million. The premises were not typical of the neighborhood, lacking a dramatic entry or spectacular view. The premises were set on several levels, with many stairs, a relatively small living space, a "very outdated" kitchen, no formal dining area, many difficult-to-maintain overhanging oaks, and a plan that "does not flow well for entertaining." Nevertheless, he had decided to list the property with Gayle Langston of Alain Pinel Realtors, Montclair, "the most optimistic and aggressive agent interviewed," for $1.99 million. This was less than what Susan claimed to be an old appraisal of $ 2.6 million (not provided to him), and more than a highest offer of $1.3 million received once before. Reeves reported that he had rejected an offer of $1.1 million. The property had not yet gone on the market, but the listing was good to May 2007. Reeves expected to have it on the market by January 1, 2007. Eli had been promising to vacate but, to date, had not. "All of the agents interviewed indicated that no sale was possible until he vacated." Unnamed "tenants" had done some maintenance, however, and the consensus of realtors was that the property would be better served with them remaining there. Ivan Golde, an attorney with a $10,000 lien on the property for legal services rendered in the criminal trial, would accept three-quarters of that amount, and Reeves planned to finance all obligations, needed repairs, and costs of staging with a loan against the property through Bank of Alameda.
When Susans sentencing hearing was continued to February 23, 2007, Judge Craddick continued the review hearing to coincide. When no update report was received from Reeves, she continued it again, to June 15.
All further dates are in 2007 unless otherwise stated.
MacKenzie filed a letter and declaration on June 7, voicing alarm at lack of progress. The property not been listed for sale; realtor Langston had advised him that no one was doing the work needed to prepare the property for sale; and with some contractors having trouble getting paid for work on the property, Langston was waiting for Reeves to secure financing for staging and repair costs. Surprised by these developments, MacKenzie faxed Reeves in mid-May asking him for proposed loan documents and to itemize what funds were needed, and advising Reeves that Adam and Gabriel were willing to loan the estate whatever funds were needed. Reeves had not responded. Meanwhile, a default notice and statement from Citimortgage indicated that, subsequent to curing an initial deficiency in December 2006, Reeves had not made arrangements to make monthly payments, resulting in arrears and late charges of over $12,000 as of April. Reeves had also not responded to concerns from MacKenzie and an experienced real estate broker (Gabriels caretakers since Felixs death), about the marketing strategy and asking price of $1.99 million. John and Adam had lost confidence in Reeves acting as referee, and requested that he either be removed or closely monitored and ordered to keep the parties informed.
Susan had been sentenced on February 23 to 16 years to life, and was no longer in local custody. Having appealed her conviction, she was now at Valley State Prison for Women (VSPW), in Chowchilla. On May 30, Susan filed a request for transport to the June 15 hearing, stating also that she had not received a copy of a "status report" from Reeves. (There evidently was no such report; the only one then being his preliminary report from December 2006.)
Judge Craddick denied the transport request by a minute order of June 8, writing in part: "Imprisoned criminal defendants are not entitled to be personally present for civil proceedings. See Yarbrough v. Superior Court(1985) 39 Cal.3d 197, 203-204."
The status review proceeded on June 15. A minute order reflects that Reeves asked to be relieved and replaced as referee, that MacKenzie introduced Stephen Anderson as a candidate, and that Anderson said he was ready to step into the position. Judge Craddick relieved Reeves, appointed Anderson, and set a status review for August 31.
The order reads: "Atty Reeves advises the court he has been working on getting the property [ready] for sale and finds that he is not the best candidate for the position of referee. Atty Reeves requests the court relieve him of this position and appoint someone else.
"Atty MacKenzie advises the court he has a person in mind for the position. The court is introduced to Ste[ph]en Anderson. Atty Anderson advises the court he is ready to step into the position.
"The court appoints Ste[ph]en Anderson as referee. The court directs [him] to prepare a written report on the status of the property and as to what needs to be done by the next hrg. The court grants Atty Reeves[s] request to be relieved. Atty Anderson is directed to work with Atty Reeves to effectuate a smooth transition into the position.
"The court directs Atty Anderson to use realtor: Langston if able as she has been working with Atty Reeves on this property and has already put in a lot of time.
"Hearing on status review re: referee report set for 08/31/07 at 9:00 in Department 09."
An order signed on June 20, and filed June 23, formalized the appointment. It ordered Anderson to consult with Reeves and Langston, placing the property in his custody, and granted him authority to contract and proceed with the sale, and to set a listing price that he felt, in his best judgment, was reasonable and appropriate in the circumstances.
Susan filed notice of appeal from the order on August 3. This is appeal No. A119043 in our docket.
Anderson filed interim reports in June, July and August. He reported that funds were not available to keep the first or second deeds of trust current, and that limited funds he would advance himself should be used to market the property, which would be sold through realtor Langston, as urged by the court. Anderson had sought payment moratoriums from the trust deed holders, but both had rejected the idea. One had issued notice of foreclosure that, without court intervention, would occur on November 9. The plan was to achieve closing before then.
The sales plan contemplated using a multiple listing service, showing the property by appointment, keeping a log of interested persons and giving them sales information. Draft notice and sales information called for bids to be opened at a private sale on October 8, to be followed by procedures for potential overbids, and a court confirmation hearing on October 22. No bid would be accepted that did not satisfy all encumbrances and costs. Sale would be "as is" and for cash only.
Langston expected the property to sell for $1.4 to $1.7 million. Anderson felt that this was "at the high end of the value range," but prepared cash flow estimates for sales at $1, $1.4 and $1.7 million. Allowing for escrow and court costs, and a sales commission, his estimates anticipated distributions near $74,000, $ 264,000 and $407,000, respectively, to each of Susan and "the Boys Estate." Subtracting from Susans share the liens by the county and Golde, which totaled about $230,000, yielded a net loss for her at the $1 million sale level, but distributions of about $35,000 and $177,000 at the higher levels. The property may have been listed at $1.999 or $1.5 million.
We say "may have been" because the record is unclear. It contains a copy of an internally undated online listing for $1,999,000, but also a September 12 article from the Contra Costa Times—titled "Murder `stigmatizes Polks house"—reporting that the house was "on the market for $1.5 million." The published notice of private sale, however, gave no price at all, and the sales information given to interested parties stated only that there was "no minimum bid in theory" and that any offer would have to satisfy all encumbrances and costs.
In a one-page filing of September 7, 2007, Susan raised an unelaborated objection to the second interim report "sale plan put forward by the referee" and sought a hearing. In an unreported hearing that same date, to which a status review on the sale had been continued, the court "confirm[ed a] 10/15/07 sale confirmation hearing." Susan filed brief objections over the next several days.
Then, in an extensive filing of September 25, Susan again requested a hearing and specified that, if that hearing did not occur, these were her objections "for the 10/15/07 hearing." She also made "a standing request" for transport to all court hearings. An 18-page declaration raised numerous wider-ranging complaints, many of which she had raised before, but a principal objection was that the property was worth more than the referee or realtor assumed. She declared, with partial documentary support, that the property was purchased for $1.85 million in 2000, that it was listed for sale in 2001 and 2002 for $ 1.945 and $2.05 million (evidently without sale), and that probate referee Michael Herwood appraised the property at $2.4 million in 2004, with John showing the estates interest as one-half yet listing the property for $1.6 million (and understating the homes square footage). In Susans view, the property was worth $2.6 million given inflation since Herwoods appraisal. The relief she sought, however, was not to set a higher listing price. Rather, she sought to halt the sale, replace everyone on the case, and have a "[r]eferral of proceedings back to probate," where Herwood (ironically, a nominee by John that Susan had rejected) could be appointed referee and/or executor.
Susan sought: removal of referee Anderson, realtor Langston, and attorney MacKenzie; "[r]eferral of [the] proceedings back to probate"; appointment of Herwood as referee and/or executor; acceptance of his 2004 appraisal; appointment of "a probate management paralegal firm to handle probate"; appointment of "a local realtor, untainted by prior affiliations"; "[p]revention of sale by auction"; and leases of the home and cottage to offset expenses and prevent foreclosure.
New in the opposition was this claim: "The source of the assets in my husbands estate is my mother, who made gifts and loans to assist me, as described in the attached declaration with exhibits (Ex H) (will submit) . . . ." The exhibits were not attached, but Susan added: "She never intended her gifts and loans to go to John Polk, nor did I intend [that] assets I transferred into my trust . . . go to the Polk family or John Polks control."
On October 2, Susan filed another request for transport and for an "Emergency Ex Parte Hearing," and the court denied both requests that same day.
Elaboration about her mothers interest came in a filing titled "Objections by Defendant Susan Polk to Referees Aug. Report & Requests Therein." Filed on October 5, three days before the sale bid opening, it offered two exhibits. One was a sales agreement signed on February 20, 1996, by Susan, Felix, and Susans mother, Helen Bolling, as "partners in the ownership of the property located at 1530 Arch Street, Berkeley, California" (the Arch Street property). Costs and a mortgage balance would be paid out of the proceeds. Then, in a "distribution of the equity or profits," Bolling would receive $100,501.35, and Felix and Susan $20,447.72. The remainder was to be divided according to partnership interests (50 percent to Bolling, and 50 percent to Felix and Susan), and Bolling would receive "an additional 5% of the net proceeds."
The second exhibit was a declaration in which Bolling claimed to be owed $109,000, plus 5 percent of the sales price, plus "interest from 1991." She claimed she had made loans to Felix and Susan for realty purchases since their 1981 marriage, had bought the Arch Street property in 1991 and gifted half of it to Susan, and had entered into an agreement with them that same year, upon a refinancing to buy a Piedmont apartment building, that she would be repaid $109,000, and 50 percent of the net proceeds plus 5 percent interest upon sale of the Arch Street property. She had paid cash for that property, but allowed title to be taken in joint tenancy "for strategic reasons" under a Berkeley rent control ordinance. Her gifts and loans "were intended for Susans benefit," and for years afterward, she allowed Susan to retain use of the money "with the idea that in time I would be repaid in full." When John sold the Arch Street property in 2003 (evidently in probate after Felixs death), Bolling received half the proceeds from John, but "without any consideration for the loan repayment as Id understood I could expect from his attorney Budd Mackenzie." "When that didnt happen," she asserted, "I understood from Mackenzie I would be paid when the house in Orinda was sold and the estate settled because money was needed to make payments on my daughters home in Orinda."
Bolling lived in San Diego, and Eli lived with her.
Meanwhile, the sale was proceeding, with the property listed, notices of the private sale published, and about 200 brokers and agents viewing the property, either through tours or open house events. "Virtual tours" were also available online. Bids would be opened on October 8, with potential overbids considered at the confirmation hearing set for October 15.
October 8 passed without an acceptable written offer for which Anderson could seek confirmation, only "discussions in the $ 625,000 to $650,000 range."
On October 11, Susan filed an "Application for Settlement Conference & Offer to Buy out Estate[]s One-half Interest in Property, Request for Continuance & Order for Transport." In it Susan offered that her mother, Bolling, would buy out the estates interest "for the net sum of $300,000," as part of a settlement in which Bolling would waive her claim for reimbursement and Susan would relinquish claims against John and MacKenzie "for their misallocation of assets in the estate, fraud and obstruction of justice, and my husbands estate, now and forever, regardless of the outcome of my appeal." No direct offer from Bolling herself was included, but Susan represented that Bolling (and Eli) had authorized her to make the offer. A "Correspondence Memo," mailed by the superior court clerk on October 11, stated that the application, including transport to the October 15 hearing, was denied.
We have no reporters transcript for the October 15 hearing, but the minute order states that confirmation was continued to November 30, with this notation: "The court finds referee is unable to accept/reject offers until further consultation with the county due to a lien in favor of CCC Collections and Compliance Unit. A representative of the court was unable to be present this date as the assistant county counsel left on vacation today." What created uncertainty about the county lien is not stated, but we infer from elsewhere in the record that it might have involved then-recent filings in the criminal case by which Susan sought to have the lien reduced under Penal Code section 987.8, due to reduced ability to pay.
The court, despite continuing the hearing, did address Susans settlement proposal. This is not evident from the minute order, but a fifth interim report from Anderson states: "Prior to the Confirmation Hearing, Ms. Polk, in a letter dated October 6, 2007, indicated that under certain circumstances her mother would be interested in purchasing the estates interest in the . . . property. The Referee was asked to develop the amount necessary and communicate the amount to Ms. Polk. See Exhibit `A." The referenced exhibit, an October 17 letter from Anderson to Susan, states: "You indicated in a recent letter that your mother would be interested in purchasing the estates interest in the subject property. This possibility was discussed as a part of the Confirmation Hearing this past Monday. [¶] The cash portion required to accomplish the purchase of the estates interest by you is estimated at $425,000.00, plus the assumption of all current encumbrances. Of these funds, $ 150,000.00 has been allocated to the estate. [¶] Should you or your mother want to proceed, it is advisable that either she or you contact the Referee. . . ."
On October 22, Susan requested judicial notice of proceedings she had instituted in the criminal action to vacate or amend the county lien under Penal Code section 987.8. The record shows elsewhere, however, that her effort had little success, for on September 30, the criminal court had ruled that $212,033.31 was needed to satisfy the lien.
On November 19, Anderson moved for orders confirming sale and approving a report and return filed the same day. Negotiations with buyers Dylan and Erica Hughes had produced a highest and best offer of $1,273,000. The report and a supplement set out expected distributions out of the sale proceeds. Perhaps prompted by criticism from MacKenzie about their performance earlier in the case, Reeves and Langston each ultimately enlisted counsel to represent them in recovering costs, fees and commissions.
On November 20, Susan filed a one-page "Declaration of Homestead by Def. Susan Polk & Objections to Refusal by County Recorders Office to Record Declaration of Homestead." It stated that she had submitted to the county recorder a notarized "declaration of Homestead on an official form in October," "with a check," that the "county recorder refused to record the instrument and returned it to my mother in San Diego," and that Susan, while lacking the returned declaration, was "submitting a handwritten declaration in its stead" to the court, given the proximity of the sale closing.
At the confirmation hearing on November 30, no overbids were received. The court approved payments—including the trust deed payoffs, and fees, costs and attorney fees for Anderson—and continued the hearing to January 10, 2008, for other matters. We lack a reporters transcript, but a written order of November 30 confirms the sale and approves the referees report and return. It approves payment of matters upon closing but reserves rulings on the realtors commission, the county and Golde liens, and fees for an attorney Reeves employed as referee. Susan did not attend that hearing, and her written request for transport and to suspend referee and "Return Property" was not filed until December 5.
Susan filed notice of appeal, on December 12, from the "orders of 10/11/07 & 11/30/07," and an amended notice of appeal from the same orders on January 16, 2008. This is our docket No. A120366.
On December 14, Reeves, acting through counsel, petitioned for determination of his entitlement to reimbursement for sums he advanced to the estate.
On December 17, Susan moved to vacate the sale and disqualify the referee. She attached a "notice of exemption" for her asserted homestead, and a summary that restated her $300,000 buy-out terms.
By an "Unreported Minute Order," signed and filed on December 18, the court authorized reimbursement of $4,023.30 as referees costs for Anderson, stating that these had been inadvertently left out of the November 30 order. On the same date, it entered a cryptic order seemingly indicating that a "hearing on motion to/for modify or vacate judgment ent. in D9 filed by John G. Polk pok" was "dropped from calendar by the court."
The county requested payment of its lien in the amount determined by the criminal court, and attorney Ivan Golde declared that he sought $7,681 in satisfaction of his own lien. Both were secured by deeds of trust. Langston filed a request detailing her claims for fees and realty commission.
On January 2, 2008, Susan filed a response critical of Andersons return and report and Langstons filing, plus an addendum to her motion to vacate.
Further filings that month by Anderson and Reeves continued their debate over details of costs, fees and performance. Susan, meanwhile, filed broad-based objections to the December 18 order and county lien, and realtor fees.
The continued confirmation hearing proceeded on January 10, 2008, with Susan again not present but with a minute order notation that her objections had been reviewed and considered. The court approved $4,455 in fees for Reevess attorney Michael Notaro, $63,650 as the contracted five percent realty commission to Langston, $7,681 for the Golde lien, $212,033.31 for the county lien (as set by the criminal court), $119,727.93 (as requested) plus $2,500 (reduced from a requested $6,828) for Reeves, $28,236.79 as reimbursed expenses for John, $41,006.28 as legal fees and costs for MacKenzie, and $2,500 to Anderson for costs of downspouts (also confirming the prior award of $4,023.30 to him).
On January 11, 2008, Susan filed a one-page objection "to Tentative Ruling System . . . ."
Notices of entry of judgment were entered on January 11, 2008, and Susan filed notice of appeal on January 29, 2008, from "12/18/07" orders to pay Anderson $4,023.30 and denying Susans request for judicial notice of the criminal court lien modification hearing, and from the "1/11/08" orders confirming sale and awarding the realty commission as a cost of partition. This is appeal No. A120512 in our docket.
On January 23, 2008, Susan had also filed a one-page request for an "Order to Return Seized Property," which generally protested the preceding orders.
II. DISCUSSION
A.Appealability
"A reviewing court has jurisdiction over a direct appeal only when there is (1) an appealable order or (2) an appealable judgment. [Citations.]" (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696.) "A judgment is the final determination of the rights of the parties" (id. at p. 697, citing Code Civ. Proc., § 577), and there is usually only one such judgment in any case (Bank of America v. Superior Court (1942) 20 Cal.2d 697, 701). Susans three appeals—from a June 2007 appointment of successor referee, November 2007 orders confirming sale, and December and January orders making other awards in that regard—thus raise a threshold jurisdictional question we must consider on our own motion (Estate of Hanley (1943) 23 Cal.2d 120, 123), namely: Which of these orders are appealable?
We are aware of no authority that the June 2007 appointment of a successor referee was itself appealable; we must therefore dismiss the purported appeal (A119043). On the other hand, the orders confirming sale (A120366 & A120512) are appealable as interlocutory judgments determining the rights and interests of the parties and directing partition, or as appealable orders after judgment (Code Civ. Proc., § 904.1, subds. (a)(9), (a)(2)).
An interlocutory judgment—i.e., one requiring further action by the trial court to be final—is ordinarily not appealable unless expressly made so by statute (Code Civ. Proc., § 904.1, subd. (a)), but by statute, an "interlocutory judgment in an action for partition determining the rights and interests of the respective parties and directing partition to be made" is made appealable (Code Civ. Proc., § 904.1, subd. (a)(9); Richmond v. Dofflemyer (1980) 105 Cal.App.3d 745, 753 [former § 904.1, subd. (i)]). This arguably occurred when the court, on March 17, 2006, granted John summary judgment, deciding that the estate was entitled to partition but directing that the manner of partition would be explored by a referee. (Code Civ. Proc., § 872.720.) No appeal from that order is before us.
Nevertheless, Susan appeals from subsequent orders confirming the sale, and such orders have been judicially construed as appealable, either under the interlocutory-judgment exception (Code Civ. Proc., § 904.1, subd. (a)(9); Williams v. Wells Fargo Bank (1941) 17 Cal.2d 104, 106 (Williams)), or as orders after judgment (Code Civ. Proc., § 904.1, subd. (a)(2); Solis v. Vallar (1999) 76 Cal.App.4th 710, 713; Gordon v. Graham (1908) 153 Cal. 297, 298-299). These appealable orders, moreover, allow us to review challenges to the preceding order appointing the successor referee. (Cf. Ahr v. Ahr (1957) 153 Cal.App.2d 1, 2-4.)
B.Relief Sought and Mootness
In her first appeal brief, Susan does not specify what relief she seeks, but in her combined brief on the second and third appeals, she states that she seeks to "vacate the sale" and reverse "the orders and judgment for partition . . . ." In a more recent request that we approve her filing of a lis pendens on the property, she also says that she seeks, in part, a "vacating of the sale." This raises a problem of partial mootness.
The sale took place in November 2007, and the record and briefing do not suggest how this court, or the trial court on any remand, could undo the sale should Susan prevail on appeal. How the sale proceeded unstayed is not clear. Vintage case law holds that an appeal from an interlocutory judgment of partition automatically stays the judgment, in the absence of a contrary code provision (Williams, supra, 17 Cal.2d at p. 107; Code Civ. Proc., § 916 [former § 949]), yet a later-enacted provision requires an undertaking to stay a judgment directing the sale of real property that is in the control or possession of a party ordered to sell (Code Civ. Proc., § 917.4; Stats. 1968, ch. 385, § 2, pp. 817-818; see also Gordon v. Graham, supra, 153 Cal. at p. 299). Susans amended notice of appeal in No. A120366 included a request for stay, but we see no ruling on that request. Whatever happened, the sale is long past, and Susan did not secure supersedeas to prevent it. (E.g., Williams, supra, 17 Cal.2d at pp. 105, 107.)
This court must decide only actual controversies, and "`[i]t necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of [the appellant], to grant [her] any effectual relief whatsoever, the court will not proceed to a formal judgment, but will dismiss the appeal. [Citations.] [Citations.]" (Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 132.) Susan faults John in many respects on these appeals, but the fault of our lost ability to grant relief from the sale is her own if, as it appears, she never secured a stay.
Nevertheless, outright dismissal is not required, for beyond "vacating" the sale, Susan also wants relief from rulings diminishing her interests in the sale proceeds. We therefore assess and resolve her arguments in that light.
C.Lis Pendens
Susans request that we allow her to file a lis pendens must be denied. It is unclear, first, what she hopes to accomplish by it. "The purpose of a lis pendens is to give constructive notice of an action affecting real property to persons who subsequently acquire an interest in that property, so that the judgment in the action will be binding on such persons even if they acquire their interest before the judgment is actually rendered. [Citation.]" (Bishop Creek Lodge v. Scira (1996) 46 Cal.App.4th 1721, 1733; Code Civ. Proc., § 405.24.) A lis pendens is routinely recorded on realty in a partition action (Code Civ. Proc., § 872.250, subd. (a)), and our record shows that John indeed recorded one in December 2005, advising of this action for "partition and sale" of the property.
It may be that Susan wishes to record notice of her attempt, by these appeals, to vacate the sale, but if so, the effort is misguided and too late. It is misguided because an appeal is not a "real property claim" (Code Civ. Proc., § 405.2) for which notice of a pending action is given. "`Real property claim means the cause or causes of action in a pleading which would, if meritorious, affect . . . title to, or the right to possession of, specific real property . . . ." (Id., § 405.4, italics added.) There are no pleadings on an appeal, only arguments for and against reversal, and we do not see that Susan filed any pleadings below seeking affirmative relief. Her effort is too late, because the sale of the property having been accomplished in late 2007, recordation now could not timely place those buyers on constructive notice.
Susans briefing betrays confusion about what constitutes a "pleading." She often cites matters stated in her opposition papers below as "relief sought" in the trial court, but those were assertions and arguments, not pleadings. "[P]leadings are the formal allegations by the parties of their respective claims and defenses, for the judgment of the court" (Code Civ. Proc., § 420), and "[t]he pleadings allowed in civil actions are complaints, demurrers, answers, and cross-complaints" (id., § 422.10).
Another flaw in Susans lis pendens request is procedural, for the request must be made in the trial court. This appellate court is the wrong forum. Her request is denied.
Code of Civil Procedure section 405.21 provides: "An attorney of record in an action may sign a notice of pendency of action. Alternatively, a judge of the court in which an action that includes a real property claim is pending may, upon request of a party thereto, approve a notice of pendency of action. A notice of pendency of action shall not be recorded unless (a) it has been signed by the attorney of record, (b) is signed by a party acting in propria persona and approved by a judge as provided in this section, or (c) the action is subject to Section 405.6 [governing eminent domain actions by a public agency]."
Susan finds "ambiguity" in whether she, as a self-represented party, may file without court approval, but there is no ambiguity. Option (b) of the section specifically provides that a self-represented party, such as herself, must have the approval of a judge. That judge, moreover, must be "a judge of the court in which an action that includes a real property claim is pending . . . ." In applying to this appellate court for the approval, Susan misreads the effect of the last-quoted phrase. She has appeals pending in this court, but not an action.
III. APPEAL NO. A119043
A.Lack of Jurisdiction
Susan raises several challenges that appear to challenge the referee-appointment order as void for lack of "jurisdiction" in some form. None has merit.
Initially, her answer to the complaint for partition does not directly raise lack of jurisdiction. It states "affirmative defenses" that Johns "own carelessness" and "own malice" partly caused the foreclosure. She does mention probate court but only to state that she "reserves the right to file a counterclaim against [John] in Probate Court" for harm he and attorney McKenzie caused "arising from" the foreclosure. Her remaining "allegations" support that future counterclaim. She alleges that the matter was previously "brought to the attention of" Commissioner Green in probate court; that Commissioner Green "suspended John Polks authority as trustee" on her showing that he might be trying to sell the property for less than its fair market value; that John was now "attempting to avoid the venue of" probate court and that Susan objected to his and McKenzies "`forum shopping"; that John was the subject of "petitions filed by Susan and Eli" to remove him as "Executor and Trustee of the Polk 1996 Trust"; that she and Eli had warned him of their intent to "sue for the defrauding of the estate"; that John had "blocked [Susans] access" to assets from a profit sharing plan and refused to pay the mortgage out of those funds; and that John was "driving down the value of the home by forcing it into foreclosure." This did not challenge jurisdiction except, arguably by implication, the notion that John lacked power to bring the action.
Partition is an equitable action brought to determine interests in property. (See generally 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 679, p. 101; Code Civ. Proc., § 872.010 et seq.) The complaint sets forth the property description, all interests the plaintiff has or claims in the property, all known or recorded interests by others, a prayer for partition of the interests (Code Civ. Proc. § 872.230, subds. (a)-(d)), and, if the plaintiff seeks sale of the property, "facts justifying such relief" (id., subd. (e)). An answer sets forth a defendants interests (id., § 872.410, subd. (a)), and "[a]ny facts tending to controvert such material allegations of the complaint as the defendant does not wish to be taken as true" (id., subd. (b)). The pleadings, of course, frame the issues before the court.
The trial court surely appreciated that Susan was a self-represented party without formal legal training, but a liberal construction of her answer (Code Civ. Proc., § 452) shows only argument against the need for partition, plus facts that she had raised, or would raise, against John and/or McKenzie in a probate court "counterclaim." Issues to be raised in probate court did not concern the partition court, of course, and nothing beyond the claim of Johns suspended power as trustee reasonably suggested that she challenged the partition courts jurisdiction. Susan would later file papers in the case that sought a "referral" of this action "back to probate," but this was not stated in her answer. Nor did she ever demur to the complaint on grounds of no subject matter jurisdiction (id., § 430.10, subd. (a)) or Johns lack of legal capacity to sue (id., § 430.10, subd. (b)), and she never sought relief by cross-complaint.
The term "counterclaim" has been abolished, and "[a]ny cause of action that formerly was asserted by a counterclaim [must] be asserted by a cross-complaint. . . ." (Code Civ. Proc., § 428.80.)
Most of her "jurisdictional" arguments are therefore not properly preserved for appeal, but even if they were all properly preserved, they lack merit.
1. "Indispensable party."
Susan claims that her "absence from the proceedings" rendered the order void and subject to attack at any time, without need for an objection below, since she was an "indispensable party" with an interest inevitably affected by the proceedings. She cites King v. King (1971) 22 Cal.App.3d 319, 325-326, but evidently misunderstands the indispensable-party doctrine.
First, absence of an indispensable party does not modernly go to a trial courts jurisdiction. The absence may impair the courts ability to grant effective relief, but is not a defect of fundamental, subject matter jurisdiction. (Kraus v. Willow Park Public Golf Course (1977) 73 Cal.App.3d 354, 364-365.) Second, under cases old (e.g., Bank of California v. Superior Court (1940) 16 Cal.2d 516, 522-523) and new, the problem is not physical absence of the person at a hearing—Susans apparent assumption. Rather, it is "failure to join" that person in the action. (People v. Parmar (2001) 86 Cal.App.4th 781, 792; Code Civ. Proc., § 389, subds. (a)-(b).) Susan was joined. She was a defendant from the start, answered as such, and thus was not "absent" in the sense contemplated by the indispensable-party doctrine. The doctrine simply does not apply.
2. Exclusive probate court jurisdiction.
Susan argues that, because she had a community property interest in the property, only the probate court had jurisdiction, and the property was therefore not subject to partition. The arguments fail.
Susan notes that while papers in support of Johns motion for summary judgment described the property as being held "as tenants in common," an attached grant deed shows that she and Felix held title as "husband and wife as community property." She invokes a case law limitation we will call the Jacquemart rule, that a spouse cannot force a division of community property by an action for partition (Jacquemart v. Jacquemart (1956) 142 Cal.App.2d 794, 795-796 (Jacquemart)), but this was not an action between spouses (contrast ibid.). Rather, Felixs undivided interest in the property had passed to his estate upon his death, and it was his estate that sought division.
Moreover, John had authority under the probate code to seek partition. As executor of the estate, he was a personal representative (Prob. Code, § 58, subd. (a)), and "[a] personal representative may bring an action against the other cotenants for partition of any property in which the decedent left an undivided interest" (id., § 9823, subd. (b)). The Jacquemart rule is codified in subdivision (a) of Code of Civil Procedure section 872.210, which broadly authorizes partition actions while cautioning in subdivision (b): "Notwithstanding subdivision (a), an action between spouses or putative spouses for partition of their community or quasi-community property or their quasi-marital interest in property may not be commenced or maintained under this title." This provision also confines the limitation to actions "between spouses," which, as already noted, is not the case here. The Jacquemart rule therefore did not apply.
Even if the rule could apply where one spouse is deceased, the rule is codified to channel community property disputes into the family law court. There was never any dispute here that Susan had a one-half community property interest; Johns complaint conceded it. Rather, the questions were whether partition was needed and, if so, whether this should be done by division in kind or a division of sale proceeds.
An annotation to Code of Civil Procedure section 872.210 highlights the policy goal to channel marital disputes between living spouses into family law court: "Subdivision (b) codifies the rule that community property is not subject to partition. [(See Jacquemart, supra, 142 Cal.App.2d 794.)] Community, quasi-community, and quasi-marital property are subject to division under The Family Law Act. See Civil Code §§ 4452 (quasi-marital property) and 4800 (community and quasi-community property). It should be noted that subdivision (b) precludes only severance of the community interests of spouses; it does not preclude partition of other estates or interests in the property that may exist concurrently or successively with the community interests. Subdivision (b) promotes a policy to make the family law court the sole forum for resolution of disputes relating to marital property. . . ." (Ass. Legis. Com. com., 17A Wests Ann. Code Civ. Proc. (1980 ed.), foll. § 872.210, pp. 453-454.)
Probate court has jurisdiction to partition where there are disputes between "two or more beneficiaries . . . entitled to the distribution of undivided interests in property [who] have not agreed among themselves to a partition" (Prob. Code, § 11950, subd. (a)), but we do not see how a dispute between an estate and a surviving spouse with a community property interest (rather than a beneficiarys interest) could fall within that language.
3. Suspension of Johns powers.
Susan claims that John could not bring this action because his powers had been suspended by the probate court. However, the only such suspension presented was Commissioner Greens March 29, 2005 suspension of "the trustees power to sell, transfer, encumber or convey any real property without further court order until May 5, 2005, at 9:00 a.m., at which time the court will consider extending this order" (underlines and capitalization omitted). We see no probate court order in evidence that extended the suspension beyond May 5. This partition action was filed months later, on August 9, 2005. Also, a declaration by MacKenzie in March 2006, on the summary judgment motion, responded to Susans forum-shopping claim in words that strongly implied that no such order had been in operation by the time this partition action was filed. In short, the record does not establish that John was without power to bring or maintain the action.
"[Susan] argues that Commissioner Green issued an order suspending [Johns] power to sell the [property]. He did, on March 29, 2005 . . . . That order was a temporary order issued in action no. P05-00422 based upon an ex parte application by [Susan]. A hearing was scheduled to consider whether that order would be extended . . . . All motions filed by [Susan] in action no. P05-00422 have either been dropped or dismissed due to Susan and Eli[s] failure to appear and/or their failure to comply with orders issued by the Court in that action. [¶] Commissioner Green mistakenly believed based upon Susan[s] declaration, that [John] was then attempting to sell the Property. He wasnt. [John], as executor of the Felix Polk estate, cannot as a practical matter sell the Property without Susan[s] consent. [¶] This action was not filed to avoid Judge Greens order, nor to forum shop. . . . [¶] Finally, Commissioner Green, himself, during one hearing was concerned about the estates interest in the Property and asked whether steps would be taken to protect its interest. This action was filed in response to Commissioner Greens concern about protecting the estates interest."
B.Invalid Appointments of Referees
Susan contends that the order appointing Anderson as successor referee, and the prior order appointing Reeves, were defective for failure to assess the ability of the parties to pay costs of the referee, as mandated by Code of Civil Procedure section 639. That section, part of a chapter covering references and trials by referees generally (pt. 2, tit. 8, ch. 6, §§ 638-645.2), provides that when the parties do not consent to appointing a referee, "the court may . . . appoint a referee" in specified instances (Code Civ. Proc., § 639, subds. (a)(1)-(5)), and that the resulting written order must include, among other things: "Either a finding that no party has established an economic inability to pay a pro rata share of the referees fees or a finding that one or more parties has established an economic inability to pay . . . and that another party has agreed voluntarily to pay that additional share of the referees fee. A court shall not appoint a referee at a cost to the parties if neither of these findings is made." (Id., subd. (d)(6)(A).)
Neither appointment order in this case contained such findings, and Susan further invokes, alluding to her pro per status and fee/cost waivers below, a statutory test that "[i]f a party is proceeding in forma pauperis, the party shall be deemed by the court to have an economic inability to pay the referees fees. . . ." (code Civ. Proc., § 639, subd. (d)(6)(B).)
Code of Civil Procedure section 639 did not apply to these appointments. Rather, the governing provisions were in section 872.010 et seq. of that code (pt. 2, tit. 10.5, ch. 1), which apply specifically to partition actions and do not require ability-to-pay findings.
These appointments followed summary judgment (not properly challenged here) that the estate was entitled to partition as a matter of right (Code Civ. Proc., § 872.710, subd. (b))—the estate and Susan having one-half interests—but found dispute whether the property should be sold and thus opted to appoint "a referee to determine if sale and division of the proceeds would be more equitable than division of the property." The order cited Code of Civil Procedure section 872.820, subdivision (b), which specifies that, in making that determination, "the court may appoint a referee and take into account his report." What follows in chapters 4 ("REFEREES"), 5 ("DIVISION OF THE PROPERTY"), 6 ("SALE OF THE PROPERTY"), 7 ("PARTITION BY APPRAISAL") and 8 ("COSTS OF PARTITION") of title 10.5, are comprehensive provisions on the role and use of such referees, and not one provision calls upon the court to find a partys economic ability to pay before making an appointment.
Absence of such a requirement makes sense in a partition action. The fees and expenses of a referee are included in "costs of partition" (Code Civ. Proc., § 874.010, subd. (b)); those costs are divided "among the parties in proportion to their interests," unless the court finds a different apportionment equitable (id., § 874.040); and those costs, if not paid earlier (id., § 874.110, subd. (a)), become "a lien on the share of the party specified" (id., § 874.120, subd. (a)), a lien with priority over other liens (id., § 874.120, subd. (b)). This expectation that every party will ordinarily be able to pay his or her share of costs (including the referees) out of their shares of the judgment makes an initial finding of ability to pay unnecessary. The partition courts authority to apportion costs by an "equitable" manner other than a partys interests (id., § 874.040) arguably confers discretion to adjust for any inability to pay.
Lack of a need for financial-ability findings is also confirmed by the partition provision, Code of Civil Procedure section 872.030: "The statutes and rules governing practice in civil actions generally apply to actions under this title except where they are inconsistent with the provisions of this title." A comment explains: "[This section] makes clear that, although partition is nominally a civil action, this title contains some special procedural provisions that apply to partition despite general rules to the contrary. For example, the partition provisions governing referees apply in partition actions notwithstanding any general provisions to the contrary that might be found in Chapter 6 (commencing with Section 638) of Title 8 of Part 2 of the Code of Civil Procedure (references and trial by referees )." (Italics added.) (Law Revision Com. com., 17A Wests Ann. Code Civ. Proc., supra, foll. § 872.030, pp. 447-448.)
C.Denial of Transport
Susan claims that Judge Craddicks denial of her request for transport to the June 15, 2007 hearing deprived her of her constitutional right of "meaningful access" to the proceedings. We disagree.
"An indigent prisoner who is a defendant in a bona fide civil action threatening his or her personal or property interests has a federal and state constitutional right, as a matter of due process and equal protection, of meaningful access to the courts in order to present a defense. [Citations.] . . . .
"Meaningful access to the courts is the `keystone of an indigent prisoners right to defend against and prosecute bona fide civil actions. [Citations.] Meaningful access . . . `does not necessarily mandate a particular remedy to secure access. [Citation.]
"Remedies to secure access may include: (1) deferral of the action until the prisoner is released [citation]; (2) appointment of counsel for the prisoner [citations]; (3) transfer of the prisoner to court [citations]; (4) utilization of depositions in lieu of personal appearances [citations]; (5) holding of trial in prison [citation]; (6) conduct of status and settlement conferences, hearings on motions and other pretrial proceedings by telephone [citation]; (7) propounding of written discovery; (8) use of closed circuit television or other electronic media; and (9) implementation of other innovative, imaginative procedures [citations].
"In determining the appropriate remedy to secure access, the trial court should consider the nature of the action, the potential effect on the prisoners property, the necessity for the prisoners presence, the prisoners role in the action, the prisoners literacy, intelligence and competence to represent himself or herself, the stage of the proceedings, the access of the prisoner to a law library and legal materials, the length of the sentence, the feasibility of transferring the prisoner to court and the cost and inconvenience to the prison and judicial systems. [Citations.]
"A prisoner does not have the right to any particular remedy. A prisoner may not, for example, compel a trial court to appoint counsel. [Citations.] The right . . . in a civil action arises only when there is a bona fide threat to his or her personal or property interests and no other feasible alternative exists. [Citations.] Nor may a prisoner ordinarily compel his or her appearance in court. [Citations.]
"The trial court determines the appropriate remedy to secure access in the exercise of its sound discretion. [Citations.] The exercise of the trial courts discretion will not be overturned on appeal `unless it appears that there has been a miscarriage of justice. [Citation.]" (Fns. omitted.) (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 792-794, citing in part to Yarbrough v. Superior Court, supra, 39 Cal.3d 197 (Yarbrough ); Payne v. Superior Court (1976) 17 Cal.3d 908; Pen. Code, § 2601 et seq.; see also Apollo v. Gyaami (2008) 167 Cal.App.4th 1468, 1482-1484 [rights of civil plaintiff as indigent prisoner].)
We reject Susans threshold claim that Judge Craddick misunderstood the law since, in denying the transport request for the June 15 hearing, she wrote: "Ms. Polks request for transport to Court to attend the Status Review Re: Appointment of Referee on 6/15/07 in Department 9 is denied. Imprisoned criminal defendants are not entitled to be personally present for civil proceedings. See Yarbrough[, supra,] 39 Cal.3d 197, 203-204." (Italics added.) Judge Craddick clearly did understand the right of meaningful access. She had ordered numerous continuances while Susan was in trial in the criminal action, had tried to arrange partition action hearings to coincide with Susans criminal appearances, and had appointed Susans chosen referee over Johns nominees, in what we infer was an effort to accommodate her and avoid having to schedule a further hearing on the matter. Those actions were designed to allow Susan to defend or appear, and we cannot read the June 8 denial order as broadly as Susan urges. We construe the denials reference to Yarbrough as meaning only that Susan did not have an unqualified right to be personally present and did not have such a right in these particular circumstances. The record does not rebut the presumption that the trial court knew and applied the correct statutory and case law. (People v. Nance (1991) 1 Cal.App.4th 1453, 1456; Ross v. Superior Court, supra, 19 Cal.3d at p. 913; Evid. Code, § 664.)
Nor is abuse of discretion shown in the circumstances. As the denial order indicates, this was set to be a status review on Referee Reevess progress. Bearing in mind that we review a ruling by what was before the trial court when it ruled (In re Zeth S., supra, 31 Cal.4th at p. 405), the only hint of replacing Reeves at the time of the June 8 ruling was the MacKenzie declaration, filed the day before, which had expressed dismay at Reevess performance and lack of communication, and ended by advising that John and Adam had lost confidence in Reeves and asked that he be removed or closely monitored and ordered to keep the parties informed. This was not a formal motion for removal and, in any event, left closer monitoring an alternative should Reevess performance be found wanting. Further, Susan had appeared in person or been represented at important earlier hearings, and this was a mere status review, not a trial. Susan had shown her ability to articulate her views in writing, and she was no longer being held in local custody, where a hearing date might be continued to coincide with a criminal court appearance. Her persistent complaints about partition not being required at all had been resolved against her on summary judgment, leaving only the question of how the partition would proceed. Susans persistent complaints about Johns past performance as executor and whether he should remain appointed were questions for the probate court (Prob. Code, § 8500 [any party may petition for removal of personal representative]), not the partition court.
No abuse of discretion appears in not ordering Susan to be transported to the June 15, 2007, hearing.
D.Lack of Notice
As it turns out, the June 15 hearing did not proceed as a status review at all, and any idea that Adam or John had about asking that Reeves be replaced or more closely monitored became moot. Reeves filed no status report and, instead, came to court to ask that he be relieved as referee. Susan complains on appeal that she did not receive a copy of MacKenzies declaration filed June 7, or have notice of the changed nature of the hearing, but she does not show prejudice or, as to the nature of the hearing, error at all. The fact that Reeves asked to be relieved as referee made any complaints about his performance moot, and the hearing minutes show that Reeves unequivocally wanted out. (See fn. 11, ante.) We see nothing before the court that gave earlier warning that Reeves would be asking to be relieved. It was apparently a surprise to the court, and there was thus no way to have advised Susan that the status review would not occur as anticipated.
We infer, from Anderson being present in court and offered as an alternative, that John, MacKenzie and/or Anderson expected that Reeves would be asking to be relieved. Susans complaint of unauthorized "ex parte communications" with the referee, however, does not suggest how she was prejudiced. Reeves never served further, and it is clear from Susans appeal brief and the record below that, while Reeves had been her first choice of referee back when she appeared for his appointment in August 2006, she did not really want any referee appointed if it meant partitioning the property by sale. Reeves then concluded in his preliminary report of December 2006 that a sale was the only feasible option, given mounting obligations and a lack of other estate funds. Even if Susan could credibly argue now that a sale through Reeves would have been to her ultimate advantage, she does not point to anything in the record showing that Reeves, who had been unable to list the property in eight months as referee, was set to accomplish this any time soon or could readily secure the needed financing.
Anderson was appointed successor referee, was directed to work, if possible, with the realtor that Reeves had already engaged, and was directed to report back at the next hearing. If Susan means to argue that it was an abuse of discretion to proceed with the new appointment in her absence, we are not persuaded. The property was in danger of foreclosure and sliding further into debt each month. Anderson was not a prospect out of the blue; he had been known to Susan as one of the people nominated by John in April 2006, months before the appointment of Reeves.
Susan offers: "I was not afforded the opportunity at any time to plead my cause, propose a settlement, buy out the estate, or partition in kind and thereby preserve the trusts interest in the property for the benefit of my sons." However, if those prospects did dim with each passing month, in an action that had already dragged on for years since its August 2005 filing, we do not see how proceeding to appoint a successor referee on June 15, 2007, itself caused such prejudice. Indeed, Susan does not show how delaying the appointment of a successor referee at that point would have benefited her in the long run or improved the prospects of an in-kind partition. She remained free to offer a settlement and does not suggest, in her briefing on this first appeal, what such a settlement would have entailed or how it was feasible at that point. She makes no effort to total the encumbrances, debts, and arrearages against the property, or to show how those could have been satisfied while allowing for in-kind partition. Certainly no such showing appears from the materials before the court when it ruled on June 15. Also, in-kind partition is a futile argument now, since our ability to render relief in the form of restoring the property has been defeated by the propertys sale (pt. II.B., ante).
Susan does not carry her burden on appeal of affirmatively showing both error and prejudice. (Vaughn v. Jonas (1948) 31 Cal.2d 586, 601; Cal. Const., art. VI, § 13.)
E.Other Arguments
Susan has tried to cast some of her claims of court error as instances of judicial bias, but since we have found no error, it follows that she was not a victim of judicial bias. Such claims, moreover, are not preserved for appeal unless raised below (People v. Avery (1950) 35 Cal.2d 487, 493), and we see no such claim having been raised by her in the proceedings leading to the ruling.
Susan also views the partition and probate actions as a quasi-conspiratorial effort by John and MacKenzie to depriving her of assets she might have used to hire counsel in her criminal trial, and she casts this as a denial of her right to counsel. We are unaware of any authority for reaching a right-to-criminal-counsel claim in a civil appeal, and as already noted, Susan never pleaded fraud or conspiracy in this partition action so as to place it at issue below (see pt. III.A., ante).
Susan complains that error affected Eli, but Eli has not appealed. Susan lacks standing to claim error on his behalf. (In re Marriage of Hinman (1992) 6 Cal.App.4th 711, 719, fn. 3; Rebney v. Wells Fargo Bank (1990) 220 Cal.App.3d 1117, 1128.)
Finally, in examining her claims of error, we must ignore "objections" and other matters she raised below only after pertinent rulings (pt. I.A., ante), some of which she raised in papers filed even after her notice of appeal.
IV. APPEAL NOS. A120366 & A120512
Susans briefing against the orders in A120366 and A120512 raises the same "jurisdictional" arguments we have already rejected for her first appeal (pt. III.A., ante), and that reasoning remains dispositive: Susan never properly raised most of those issues by pleading or demurrer. And, she was not an "absent" indispensable party; the probate court did not have exclusive jurisdiction over the property; and John did have power to bring and maintain this action for partition.
Also, for reasons already stated (pt. III.B., ante), we reject her claims that the two referee appointments were invalid for failure to make financial-ability findings.
Finally, her policy arguments about a "forced sale" being disfavored (Richmond v. Dofflemyer, supra, 105 Cal.App.3d at p. 757) are essentially arguments that the property should have been partitioned in kind, not by sale, and these are moot now that a sale has foreclosed any remedy of restoring the property (see pt. II.B., ante).
A.Application for Settlement Conference; Buy-Out Offer
A frequent refrain in Susans brief, while never properly framed under a "separate heading or subheading" (Cal. Rules of Court, rule 8.204(a)(1)(B)), is that John, Anderson and, by implication, the court, ignored her October 11 "Application for Settlement Conference & Offer to Buy Out" the estates interest. She contends: "Neither the plaintiff nor the referee ever responded to the application, nor did they deny [its] allegations. On 10/11/07, my application was denied by the court in an ex parte hearing at which I was not present or represented." This argument betrays misunderstanding and fails to demonstrate error.
First, the record does not show denial at an "ex parte hearing." Rather, the same day as Susans application was filed, the clerk of the court mailed her a "Correspondence Memo" indicating that the application was denied. This was not a minute order reflecting a hearing. As far as the record shows, there was no hearing at all, and no ex parte participation by John or Anderson. It is not even clear that they had received copies of the application by the time it was denied.
Second, Susans application was for a settlement conference, and the October 11 ruling denied only a conference at that particular point, not the prospect of settlement. Andersons fifth interim report recounted that on October 15, the very next scheduled hearing, the court directed him "to develop the amount necessary" to buy out the estates interest "and communicate the amount" to Susan. Thus, the court certainly did not ignore the application, and nothing indicates that the parties were ready to conference yet.
We need not examine a troubling issue unaddressed by Susan, namely, whether the unexplained tardiness of her application and settlement offer, over two years into the case and pending a public sale, was a sufficient basis alone for denying the application.
Third, Susan does not establish abuse of discretion in the denial of the conference or in the courts directions to Anderson. Susans offer was to buy out the estates interest "for the net sum of $300,000," as part of a settlement in which her mother relinquished a claim for reimbursement and Susan relinquished claims against John and MacKenzie "for their misallocation of assets in the estate, fraud and obstruction of justice," and claims against Felixs estate, "regardless of the outcome of my appeal." This appeared to be a global settlement offer affecting multiple actions. The "appeal" reference was evidently to the criminal action—issues the partition court did not have before it. The claims for misallocation of estate assets and obstruction of justice, never pleaded by Susan in this partition action, necessarily referred to probate proceedings—further issues that were not before the partition court. What the partition court did have before it was a pending sale of the property, and the court reasonably opted to test the idea of settlement by seeing, first, if the offer was within range on the buy-out price. The courts directions to Anderson explored that question, and Andersons reply, copied to the court, showed a vast gulf between the offer and the estates needs on that term alone, regardless of other components of the offer. No abuse of discretion is shown.
Fourth, while Susan charges John with lack of response, it is unclear how this would constitute error. It takes agreement of the parties to settle, and lack of response by any party would indicate unwillingness. We know of no authority that the court could force the parties into a settlement to which they did not agree. It is also untrue that there was no response. Anderson wrote to Susan on October 17: "The cash portion required to accomplish the purchase of the estates interest by you is estimated at $425,000.00, plus the assumption of all current encumbrances. Of these funds, $150,000.00 has been allocated to the estate. [¶] Should you or your mother want to proceed, it is advisable that either she or you contact the Referee. . . ." This was a threshold response, albeit unfavorable, to Susans $ 300,000 buy-out proposal, and the response was copied to counsel for John. We also see no modified offers from Susan or Bolling. Susan points to letters she wrote inquiring into payments and pay-offs on the deeds of trust, but these letters never modified the initial offer. From what we can discern, she merely summarized and restated the original terms of the proposal. Bolling herself filed nothing of which we are aware.
B.Helen Bollings Interest
Susan notes that the court did not honor her mothers claimed interest in the property, although it is not clear whether she raises this apart from the issue of settlement conference and buy-out just discussed. In any event, she does not show error.
Susans brief reveals that her mothers claimed interest was in dispute in the probate proceedings, and an examination of Bollings letter explaining the matter confirms that probate court was the proper forum for adjudicating those disputes. Bollings declaration, the only evidence on the point, traced this debt to a line of agreements and understandings she said dated back to loans and gifts made to Susan and Felix starting in 1981, soon after the couples marriage. The specific written source of her claim emanated from a partnership agreement to be repaid out of the sale of the Arch Street property, that she claimed occurred partly, but not fully, when John sold the Arch Street property in 2003. That was a sale in probate, long before the 2005 filing of this partition action, and the court here had no reason to doubt the probate courts jurisdiction over the matter. Bolling related that her expectation of deferred repayment out of the Orinda property sale evidently flowed from some sort of unwritten understanding with MacKenzie. None of this had taken place before the partition court. Bolling never asked to be made a party here, and Susan never demurred or answered based on a failure to join Bolling as a known, interested party (see Code Civ. Proc. §§ 872.230, subd. (c), 872.510). We do not see how the partition courts jurisdiction was properly invoked to adjudicate Bollings interest, if any.
C.Motion for Disqualification
Susan wrote a letter to Anderson on September 3, criticizing his handling of the case, and filed it in court on September 11, apparently as an exhibit to a declaration and objection to the sale and to Andersons second interim report. She urges now that her letter, while not identified as such, qualified as a motion to disqualify the referee (Code Civ. Proc., §§ 170.1. 170.6, subd. (a)(1)) and that Anderson, by failing to appreciate this and respond within 10 days, is "deemed to have consented" to his disqualification (id., § 170.3, subd. (c)(4)), rendering his subsequent actions "voidable."
We cannot reach the issue on appeal. "The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate" from an appropriate court of appeal sought within 10 days. (Id., § 170.3, subd. (d).) "[T]he statute means what it says: [it] provides the exclusive means for seeking review of a ruling on a challenge to a judge, whether the challenge is for cause or peremptory. [Citations.]" (People v. Panah (2005) 35 Cal.4th 395, 444; County of San Diego v. State of California (1997) 15 Cal.4th 68, 110.)
D.Homestead and Exemption
Susan contends that the court "ignored" her homestead declaration and claim of exemption. She concedes that the county recorder refused to accept her declaration for recordation, but argues that her effort validly and timely placed the court on notice so as to preserve her claim. We can agree that recordation is not the only way to accomplish a homestead (see, e.g., In re Morse (1995) 11 Cal.4th 184, 201; Webb v. Trippet (1991) 235 Cal.App.3d 647, 650-651), but we find no need to decide whether she timely succeeded in that respect. A threshold problem—which we suspect led both the county recorder and court to reject her effort—is the requirement of residency.
Code requirements are that a homestead debtor "resides in" the dwelling at the time of declaration (Code Civ. Proc., § 704.930, subd. (a)(3)) and has "resided" there continuously until the lien judgment (id., § 704.710, subd. (c)). This reflects a longtime principle that a declarant must, as measured by actions and good faith intent, actually reside on the property, and is generally a question of fact. (McKay v. Gesford (1912) 163 Cal. 243, 246-247; Ellsworth v. Marshall (1961) 196 Cal.App.2d 471, 474, 477.) A legislative comment regarding a 1983 deletion of the modifier "actually" from the code language states that this was intended "to avoid a possible construction that a person temporarily absent (such as a person on vacation or in the hospital) could not claim a dwelling exemption . . . merely because the person is temporarily absent, even though the dwelling is the persons principal dwelling and residence." (Cal. Law Revision Com. com., 17 Wests Ann. Code Civ. Proc. (2009 ed.) foll. § 704.710, p. 131.)
The problem for Susan is that, by the time she made her homestead declaration, in October 2007, she had not resided on the property for over two years, since being out on bail in the criminal action, and had since been convicted of second degree murder and sentenced to 16 years to life in prison. Her absence far exceeded a hospital stay or vacation and, as a matter of law on these facts, could not reasonably be called temporary. (See, e.g., Michelman v. Frye (1965) 238 Cal.App.2d 698, 700, 704-706 [wife remained resident while forced by physical violence of husband to vacate family home, with children, for four-month period while pursuing divorce].)
E.Liens
County lien.
Susan disputes being ordered to pay $212,033.31 for the county lien. She claims that the amount was unconstitutional for various reasons, was a product of "fraud" and "conflict of interest" by attorneys, was "objectively unreasonable" in that she ultimately represented herself at her criminal trial, and was improperly imposed despite her inability to pay. She faults the partition court for denying her requests "to attend an evidentiary hearing" on the matter and to take judicial notice of filings from the criminal case where she had sought modification under Penal Code section 987.8.
No error is shown. The lien, which Susan concedes was imposed and recorded against her interest in the property, was imposed after trial in the criminal action, for costs of counsel, per the statute (Pen. Code, § 987.8, subds. (a)-(b).) It was the criminal court that imposed the obligation, and Susan had applied to that court to modify or vacate it. Such modification must be made in "the rendering court" (id., subd. (h)), and thus the partition court had no jurisdiction to interfere. There was accordingly no error in its refusals to afford Susan a hearing on the matter or take judicial notice of filings in that action. To be judicially noticed, materials must be relevant. (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063.) The record shows that the criminal court fixed the lien at $212,033.31 on September 20, 2007, and that the partition court correctly followed that relevant decree as establishing the amount of the lien.
Golde lien.
Susan mounts a curious contractual challenge to the $7,681 charged against her for the Golde lien. The debt flowed from a promissory note she executed in December 2005 with Ivan Golde, her counsel at the time, who agreed to make her an interest-free loan of $10,000 for the defense of Eli in a criminal case. The note was secured by a deed of trust for $10,181, the added $181 representing costs of having a locksmith go to the property to make a key for Susan.
As part of her October objections to the August 2007 interim report, Susan filed a November 2006 letter in which Golde explained to her he had notified attorneys Reeves, MacKenzie, and Westly (probably Gary Wessley) that, while the lien on its face was for $10,000, she owed him only $7,900, the amount he had advanced to attorney Harry Traback for Trabacks work on Elis case. He told her that she could get Trabacks bills from Reeves and that Reeves and Westly had assured him "that the lien does not have to be revised." Golde wrote, "I will not receive $10,000 as stated in the lien, only the amount I paid Mr. Traback . . . ."
In December 2007, Golde filed with the court a declaration revising the amount further downward. Attaching the promissory note, deed of trust, and itemized expenses from Traback, Golde explained that Traback had decided not to seek payment for one item and that Susan only owed $7,681—$7,500 for Traback plus $181 for the locksmith. That is the amount the court ultimately ordered.
Susan does not dispute the amount as calculated. Rather she argues that nothing is owed. She reasons that her contract with Golde was somehow unenforceable because, while she contracted with him to advance $10,000, he ultimately only advanced $7,500 and therefore breached the contract. She calls this "fraud" on his part. Her only cited legal support is Civil Code section 1587, which she takes to mean that "failure to perform as agreed upon voids a contract when fulfillment of the promise was a condition of the contract." In fact, the provision says no such thing and only sets out methods by which a proposal is revoked. In a similar argument made below, she cited Civil Code section 1567, which also says no such thing but, in subpart 3, does identify "[f]raud" as vitiating "apparent consent."
She fails to show error. This was not a civil suit involving pleadings about the validity of a contract; it was an equitable action, for partition, to resolve interests in the property. Susan never disputed that Golde advanced the funds to her or that she secured the note with a deed of trust, and we do not understand how she sees "fraud." It arguably would have been fraud had Golde sought recovery of the full lien amount, knowing that he never advanced that much, but he sought, and got, only what he had advanced.
F.Costs and Fees
Partition is an equitable action (see 5 Witkin, Cal. Procedure, supra, Pleading, § 679, p. 101), and costs should be incurred for the "common benefit" of the parties (Williams v. Wells Fargo Bank (1943) 56 Cal.App.2d 645, 651-652). Susan challenges costs and fees allotted to her, making no effort to detail or dispute the accounting as lacking evidentiary support, but raising several broader arguments.
In one part of her briefing, she assails attorney and referee fees on grounds that: (1) John sought partition in order to "evade the jurisdiction of probate"; (2) a trustee or other fiduciary must bear his own expenses in litigation brought on by his breach of duty (citing Estate of Baird (1955) 135 Cal.App.2d 343, 347); (3) these fees conferred no "common benefit" because they only benefitted attorneys, referees, a realtor, and the buyers; and (4) "reference" of this matter to the partition court was "in excess of the court of probates jurisdiction," thus generating "entirely frivolous" fees.
As we have already held: John had authority to bring the action, which did not evade any "exclusive jurisdiction" of the probate court, and this was an independent action, not a "reference" from the probate court. The pleadings also show this to be a partition action, not an action for breach of a fiduciarys duty. Thus, the fees were not frivolous or unauthorized.
As for common benefit, what serves the parties interests is fundamentally a question of fact (Richmond v. Dofflemyer, supra, 105 Cal.App.3d at p. 757 [partition in kind versus sale]), and this means that we review such a decision deferentially, upholding it whenever the record, viewed most favorably to the order, contains substantial evidence to support the finding. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614; Crawford v. Southern Pacific Co., supra, 3 Cal.2d at p. 429.) The burden lies with the appellant to demonstrate lack of support by compiling all pertinent evidence in the record, not just that favorable to his or her own position. (In re Marriage of Fink, supra, 25 Cal.3d at p. 888; Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881.)
Susan fails, under those standards, to show lack of support for the courts implicit conclusions that the fees and costs were incurred for the common benefit and should be shared 50/50 by Susan and the estate, that is, in proportion to their interests (Code Civ. Proc., § 874.040). Susan waives the claim by failing to present all of the evidence. (Crawford v. Southern Pacific Co., supra, 3 Cal.2d at p. 429; Western States Petroleum Assn. v. Superior Court, supra, 9 Cal.4th at p. 571.) She also fails to appreciate that, while she surely saw herself as vigilantly defending her rights, the court could differ. Viewing Susans strenuous, ceaseless and largely meritless opposition to nearly everything John or the referees had done, the court could reasonably decide that she was being obstructive and shared fault for the extent of the fees and costs. The possibility that a different judge, or even a justice on this reviewing court, could draw different conclusions does not show lack of substantial evidence. (People v. Reilly (1970) 3 Cal.3d 421, 425.)
Another portion of Susans brief separately attacks expenses of John and the referees, citing in part Probate Code section 11955, which provides: "The expenses of partition shall be equitably apportioned by the court among the parties, but each party must pay the partys own attorneys fees . . . ." The short answer is that this was an independent civil action for partition (Code Civ. Proc., § 872.010 et seq.), not a probate court resolution of a partition dispute "between two beneficiaries" (Prob. Code, § 11950, subd. (a)). (See fn. 18, ante.)
Other arguments are (1) that mortgage payments, insurance and other expenses could have been avoided had John rented out the property, (2) that "the bulk" of Reevess expenses negatively affected the property and were unnecessary, and (3) that John and the referees failed in their fiduciary duties to manage the property profitably. These arguments, once more, are essentially factual, mounted without conceding that a judge could reasonably differ with Susans perceptions about the proceedings, and waived by not showing evidence to the contrary.
Finally, a third part of her brief challenges realtor fees because Langston was guilty of unprofessional conduct. We reject the misconduct claim below (pt. IV.G., post), and note that Susan again fails to present contrary evidence and inferences.
G.Fraud and Other Misconduct
Susan continues in her second brief to claim "fraud" and "conspiracy" by John, Anderson, and realtor Langston, but she never amended her pleadings below to raise the issues, and frequently represented that she had such claims pending in the probate action. She fails to show error on the part of the partition court.
She also accuses Anderson and Langston of unprofessional conduct that "drove down the value of the property" just before the sale. Noting that both persons spoke in a September 12 Contra Costa Times article about the property being stigmatized by the stabbing death of Felix, Susan points out that a code provision required revealing the fact or manner of death in the home only for a period of three years after a death occurred. (Civ. Code, § 1710.2, subd. (a); see also id., § 1102.2, subd. (b) [code disclosure requirements for residential transfers do not apply to transfers pursuant to court order].) This is a hard argument for Susan to make when Langston says in the same article that she told people about Felixs death "`because Im forthright and have integrity," and Colleen Badagliacco, president of the California Realtors Association, endorsed that decision: "[A]lthough [realtors] are required to disclose a death [within] the past three years, [Badagliacco] said she would continue to disclose the fact of a murder after the legal requirements expire, especially in a high-profile case. [¶] `Its better to be safe than sorry, she said, `Its not something where its six months past the statute so I wont say it.
"We need not resolve the issue as a question of professional ethics, for the partition court was never called upon to do so. We need only observe that the court presumably credited that reasoning in finding, on the full evidence, that the sale had been for a price "not disproportionate to the value of the Property." Further record support for the importance of such disclosure is a letter to Anderson during the staging period in which Langston related: "All parties requesting a viewing are informed of the history of the home beforehand. Several parties did not want to see [it] once informed." This latter evidence also refutes Susans curious assertions that "there is no objective evidence that a death or homicide on a property negatively impacts a propertys value," but that mere statements that it does, by "experts" quoted in an article, "may drive down" the value. The people referred to by Langston were evidently put off by the disclosure rather than by reading what an "expert" had to say about it in an article.
H.Transport Denials
Susans briefing alludes here and there to denials of transport and consequent inability to cross-examine witnesses. Unlike in her first appeal, however, she fails to address those concerns in the full circumstances of any particular hearing or hearings. Since her right of reasonable access did not dictate a right to personally appear at every hearing, but was left to court discretion (Wantuch v. Davis, supra, 32 Cal.App.4th at pp. 792-794; pt. III.C., ante), her failure to mount comprehensive challenges as to any particular hearings is a failure to demonstrate error or prejudice. We observe, however, that Susans extensive filings showed her well able to communicate objections and arguments in writing, and that these matters were presumably considered by the court (Evid. Code, § 664; In re Kathy P., supra, 25 Cal.3d at p. 102) in its rulings.
V. PETITION FOR HABEAS CORPUS (NO. A122220)
Pending these appeals, Susan filed a self-styled petition for writ of habeas corpus "Simultaneous with Direct Appeal Civil case No[s.] A119043, A120366, A120512." She does not appear to seek relief from illegal confinement or attack her criminal conviction. She names as respondent John Polk, as executor of the estate, rather than any custodial authority, and has not served the Attorney General. We conclude that she does not state a prima facie case for relief and, accordingly, deny her petition summarily.
Susan uses a printed Judicial Council form augmented with some 30 handwritten pages of allegations. The petition, she states, concerns "[t]he taking of property without due process [and] deprivation of right to counsel in criminal proceedings," yet it is clear from her voluminous petition that she does not complain of error in the criminal trial itself. She acknowledges that she represented herself in that action, and she captions the petition as brought in conjunction with the civil appeals, not her criminal appeal. She alleges, in essence, that civil wrongs by John and MacKenzie deprived her of funds she might have used to hire counsel in the criminal action.
For example, she alleges: "[John] seized control of my assets through fraud and chicanery, with the assistance of [MacKenzie], and interfered with my right to counsel"; "[Mackenzie] took it upon himself to negotiate my contract with my first criminal defense attorney, Liz Grossman, after I refused to be represented by his friend in the Public Defenders Officer, Michael Kotin"; MacKenzie then had Grossman "report to him on a monthly basis about my case without my knowledge or consent"; Grossman "negotiated a plea to manslaughter in June 2003," but when Susan rejected it, "quit, walking off with $92,000 of my money, though [Grossman] had never prepared for or represented me in a single evidentiary hearing." "[John] seized control of my remaining assets and forced me into the Public Defenders Office, though that office had a conflict of interest. I objected. Ultimately, in 2005, the PDs office conflicted out. I was convicted of Murder II . . . . I was self-represented at trial because I did not have access to capital with which to retain unconflicted independent counsel."
Other allegations mirror the mismanagement and fraud charges that she levels in her appeal briefs (ante): John and MacKenzie manipulated the estate and her sons, sold the home for less than market value, previously sold an estate rental property in Berkeley for below market value, and "contrived" a "transfer" of the probate action to the partition court to evade probate court jurisdiction. The referees, she says, failed to consult with her and ignored many of her letters (copies of letters to Reeves attached as exhibits). She further raises many of the legal issues we have addressed and rejected on her appeals (ante), such as exclusive probate court jurisdiction, exemption of community property from partition, referees appointed invalidly for lack of ability-to-pay findings, lack of notice, and improper ex parte communications by Reeves.
The attempted use of habeas corpus relief in this situation is misguided. A habeas corpus petitioner ordinarily seeks to redress improper restraint or deprivation of liberty (People v. Duvall (1995) 9 Cal.4th 464, 474; Pen. Code, § 1474), but Susan does not challenge the validity of her restraint or underlying criminal conviction (In re Visciotti (1996) 14 Cal.4th 325, 351), does not name any custodial authority, and does not claim any unlawful conditions of confinement. The writ may lie to examine whether counsel rendered effective assistance at a criminal trial (In re Lopez (1970) 2 Cal.3d 141, 151), often in conjunction with an appeal from the criminal judgment (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267), but Susan does not bring her petition with her criminal appeal or claim ineffective assistance. Indeed, having represented herself, she cannot raise that claim as a basis for reversal. (People v. Crandell (1988) 46 Cal.3d 833, 856.)
The writ may sometimes redress a denial of rights where a petitioner does not claim unlawful restraint. "The writ of habeas corpus has been allowed to one lawfully in custody as a means of enforcing rights to which, in his confinement, he is entitled." (In re Chessman (1955) 44 Cal.2d 1, 9.) This may include enforcing a prisoners right of reasonable access in an ongoing civil action (In re McNally (1956) 144 Cal.App.2d 531, 532-533), but here, Susan does not seek access to any upcoming hearing or even stress her right of access (as in the appeals). Without a pertinent hearing on the horizon, we also could not issue relief. Even in her appeals, Susan only complains of past denials of access, and "[h]abeas corpus ordinarily cannot serve as a second appeal [citations], or as a substitute for an appeal [citations]." (In re Terry (1971) 4 Cal.3d 911, 927.)
In essence, Susan alleges that a combination of fraud, conflict and wrongful acts by John and his attorney deprived her of funds. That is essentially a civil dispute. To the extent that those acts affected her options in the criminal action, Susan does not challenge her conviction. We are unaware of authority that writ of habeas corpus lies in this context to redress civil wrongs. Her petition is accordingly denied.
VI. DISPOSITION
The purported appeal in No. A119043 is dismissed. The challenged orders in Nos. A120366 and A120512 are affirmed. The petition for habeas corpus (No. A122220) is summarily denied. Susan has applied for certain costs on appeal under the appropriate rule, but that rule provides that where, as here, this court dismisses an appeal or otherwise affirms, the respondent, not the appellant, is the prevailing party entitled to costs. (Cal. Rules of Court, rule 8.278(a)(2).)
We concur:
Lambden, J.
Richman, J.