Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC383541, Kenneth R. Freeman, Judge.
Pong Re Shin, in pro. per.; Law Offices of Edward J. Chong & Associates and Edward J. Chong; Benjamin Koo & Associates and Joyce J. Cho for Plaintiff and Appellant.
Kenneth T. Haan & Associates, Kenneth T. Haan and Kenneth A. Levine for Defendant and Respondent.
ALDRICH, J.
This appeal challenges the trial court’s decision not to order a separate accounting following a court trial in which plaintiff Pong Re Shin, as trustee of the Pong Re Shin Living Trust (trust), prevailed on the complaint for partition and an accounting in a real property dispute with Shin’s brother-in-law and co-owner Jong Soon Choi. The trust contends the statement of decision contains a legal error in that the trust prevailed on its request for an accounting, but the trial court failed to order a formal accounting. Had the trial court ordered a formal accounting, the trust maintains it would have been entitled to an additional $403,000 in rental income collected during the 18 years Shin (then the trust) and Choi owned the apartment complex. We find no legal error in the statement of decision, nor do we find any merit in Choi’s request to dismiss the appeal. Therefore, we affirm the judgment.
FACTS
Shin, her husband, and Choi bought the seven-unit apartment complex in 1992 as joint tenants. Shin’s husband gave up his interest in the apartment complex. In 2003, Shin created the trust and executed a quitclaim deed transferring her property interest to the trust.
To purchase the apartment complex, the parties executed a balloon promissory note of $340,000 with a final maturity date of October 10, 2007. Upon maturity, the total amount of principal and interest due was $247,274. After attempts to refinance with the lender failed, Shin borrowed $245,224.63 from a private lender to pay off the note. The private lender charged 20 percent interest per month.
Choi maintained and managed the apartment complex; collected and deposited the rents into a joint account; and paid the mortgage, utility bills, and maintenance fees from the joint account. Shin had no involvement in the day-to-day management of the apartment complex but received financial statements from their joint bank account. Choi testified the apartment complex had always operated at a loss.
Choi initially lived rent-free in unit 5 and moved to another unit in the apartment complex. When Choi moved out, his son lived in unit 5. Choi’s daughter lived in unit 7 and paid below-market rent.
There is a discrepancy in the record as to when Choi’s son began occupying unit 5. Choi testified it was 2005 when Choi moved into unit 1, but the trial court’s tentative decision and statement of decision states Choi’s son occupied unit 5 in 2002. There also is a discrepancy in the record as to whether Choi’s son lived rent-free, as stated in the statement of decision, or paid below-market rent. These discrepancies were brought to the court’s attention in Choi’s objections to the statement of decision.
PROCEDURAL BACKGROUND
1. The Trial
The case proceeded to trial on the trust’s first amended verified complaint for partition and accounting, and Choi’s cross-complaint against Shin (which is not at issue on appeal).
In a demurrer and motion to strike the first amended complaint, Choi contended that Shin could not proceed in propria persona on behalf of the trust. On the first day of the trial, Shin asked her attorney to execute a substitution of attorney. The attorney, however, continued to represent the trust at trial. During the colloquy, the court made it clear that the trust could not represent itself.
The trust sought a partition by appraisal, whereby the trust would be able to purchase Choi’s legal interest, or in the alternative, a partition by sale. The trust also sought an accounting “for the proportionate interest in the [p]roperty for each party’s portion of the rents, issues, revenue, profits, mortgages, carrying charges, overhead, taxes, assessments, management fees, repairs, improvements, costs, maintenance and all other income and expenses of the [p]roperty.”
2. The Tentative Decision
The trial court orally announced its tentative decision to grant the partition by sale of the apartment complex. The trial court stated: “The plaintiff has asked for partition and accounting by assessment. I do not believe accounting by assessment is available unless it’s done by stipulation. So, therefore, I will order the property sold.”
As to the accounting, the trial court exercised its equitable powers and announced that the trust was entitled to a portion of the rental value of units 5 and 7 occupied by Choi’s family members, one-half credit for having borrowed $245,224.63 to pay off the loan, and repayment of interest at the legal rate. The trial court did not order a separate accounting.
3. The Statement of Decision
The trust’s attorneys prepared the statement of decision. After setting forth the trial court’s decision with respect to the rents, loan payoff, interest, and partition, the statement contains a separate section entitled “Accounting.” Under the “Accounting” heading, the statement of decision reads: “The Court finds that accounting by assessment is not available unless it is done by stipulation. The Court finds in favor of SHIN for accounting.”
As noted, although portions of the statement of decision refer to Shin, rather than the trust, the statement of decision concludes the judgment is in favor of the trust. “As to SHIN’s first cause of action PARTITION and second cause of action ACCOUNTING against CHOI, judgment is for and in favor of PONG RE SHIN, trustee of the PONG RE SHIN LIVING TRUST, against [d]efendant JONG SOON CHOI.”
4. The Judgment and Appeal
The judgment was prepared by the trust’s attorneys. The judgment refers to the plaintiff as “Pong Re Shin” and judgment for plaintiff “Pong Re Shin.” There is no mention of the trust. Thereafter, Shin, in propria persona, timely filed a notice of appeal. The notice of appeal identified “Pong Re Shin” as the appellant.
DISCUSSION
1. Dismissal of this Appeal is Not Warranted
Choi contends that there are two jurisdictional bars to our review of this appeal. First, Shin is not a party plaintiff or aggrieved by the judgment and, therefore, has no standing to appeal. Second, even if Shin had standing to appeal as a representative of the trust, this court lacks jurisdiction because a trust cannot represent itself in court. We discuss each in turn.
Representative parties, including trustees, have standing to appeal a judgment that is detrimental to the trust. (Estate of Ferrall (1948) 33 Cal.2d 202, 204-205.) We accept for purposes of this appeal that Shin contends the judgment is detrimental to the trust because the trial court’s determination not to order a formal accounting deprived the trust of approximately $403,000 in rental income. (Code Civ. Proc., § 902.) We, therefore, liberally construe the appeal as brought by Shin in her representative capacity as trustee. (Cal. Rules of Court, rule 8.100 (a)(2).)
Choi next contends that the appeal must be dismissed because a trust cannot represent itself in court either in propria persona or through a representative that is not an attorney. (Bus. & Prof. Code, § 6125.) As we explained in Ziegler v. Nickel (1998) 64 Cal.App.4th 545, a nonattorney trustee appearing in propria persona for the trust is representing the interests of others – the trust beneficiaries – and therefore engaging in the unauthorized practice of law. (Id. at pp. 548-549.) Choi also relies on Ziegler, however, for the proposition that a nonattorney has no right to file a notice of appeal. Ziegler only resolved the issue of whether a nonattorney trustee may represent the trust in court proceedings. (Ibid.)
Business and Professions Code section 6125 states: “No person shall practice law in California unless the person is an active member of the State Bar.”
A nonattorney trustee may file a notice of appeal on behalf of the trust. California Rules of Court, rule 8.100 provides in pertinent part that: “[t]he appellant or the appellant’s attorney must sign the notice of appeal.” (Cal. Rules of Court, rule 8.100 (a)(1).) This rule is “satisfied when any person, attorney or not, who is empowered to act on [the] appellant’s behalf, signs the notice.” (Seeley v. Seymour (1987) 190 Cal.App.3d 844, 853.) The courts “draw a distinction between the capacity of a person acting in propria persona to sign and file a notice of appeal and his [or her] capacity to execute and file pleadings, papers, and briefs in both the trial and appellate courts.” (City of Downey v. Johnson (1968) 263 Cal.App.2d 775, 780-781.) Thus, the trust itself, as appellant, is permitted to sign and file a notice of appeal. The only way in which the trust can perform this act is if its trustee may do so. The filing of the notice of appeal does not constitute the trustee’s unauthorized practice of law, but is an act of the trust itself. Therefore, Shin as representative of the trust, had the capacity to sign and file the notice of appeal, conferring jurisdiction in this court.
Shin, a nonattorney trustee, improperly prosecuted the appeal on behalf of the trust and filed the opening brief in propria persona. (Ziegler v. Nickel, supra, 64 Cal.App.4th at pp. 548-549.) Dismissal of this appeal, however, does not necessarily follow. In Ziegler v. Nickel, supra, at page 547, we upheld a trial court’s order informing a trustee that he had to obtain counsel to represent the trust within 30 days or face dismissal. (Id. at p. 549.) We thus treat the failure of a trust to be represented by an attorney as a defect that may be corrected in the sound discretion of the court.
The trust has obtained counsel. Thus, we exercise our discretion to reach the merits of the appeal.
2. The Ambiguity in the Statement of Decision is Not Legal Error
The sole contention on appeal is the legal error in the statement of decision in which the trial court ruled in the trust’s favor on the request for an accounting but did not order a formal accounting. Our review begins with the statement of decision to determine whether it is supported by the facts and the law. (Code Civ. Proc., § 632.) We independently review legal issues and apply the substantial evidence standard to findings of fact. (ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1266.) “Where [a] statement of decision sets forth the factual and legal basis for the decision, any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision.” (In re Marriage of Hoffmeister (1987) 191 Cal.App.3d 351, 358.) We find no legal error on the face of the statement of decision that requires reversal or modification. (See Van Klompenburg v. Berghold (2005) 126 Cal.App.4th 345, 348, fn. 3.)
Before we address the merits, however, we find one of Choi’s waiver arguments compelling. The trust prepared the statement of decision and was in a position to write any ambiguity out of the court’s tentative decision, or to clarify the nature of the trial court’s accounting order in favor of the trust. Instead, the trust’s attorneys created the ambiguity in the statement of decision by taking the trial court’s equitable determinations announced in its oral decision out of context. Thus, the trust’s drafting error in the trial court, which is raised as error for the first time on appeal, is waived. (See Children’s Hospital & Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 776-777.)
Since the trust’s attorneys wrote the statement, we reject Choi’s alternative (and circular) argument that the trust waived any error for failure to object to the statement of decision. We also reject Choi’s argument that the doctrine of implied findings applies because the doctrine does not apply when the claim is that the statement of decision contains a legal error. (See In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134.)
The challenge to the statement of decision fails for another independent reason. The statement of decision reports that the court found against the trust on its request for an accounting by assessment, but found in favor of the trust on the request for an accounting. The trial court, however, did not order a formal accounting. This perceived error ignores the trial court’s exercise of discretion on the equitable determinations, which appear in its oral decision and upon the examination of the statement of decision as a whole, rather than a myopic review of the section in the statement of decision entitled “Accounting.” (See United Pacific Ins. Co. v. Hanover Ins. Co. (1990) 217 Cal.App.3d 925, 934-935; see also Cal. Rules of Court, rule 3.1590(b).)
As set forth above, in its tentative decision, the trial court did not order an “accounting by assessment” when ruling on the partition action. In a partition action, a trial court may “order allowance, accounting, contribution, or other compensatory adjustment among the parties according to the principles of equity.” (Code Civ. Proc., § 872.140.) In the trial court’s oral decision, it appears the reference to an “accounting by assessment” conflated the accounting remedy available in a partition action with the trust’s alternative request for partition by appraisal. A partition by appraisal, not an accounting, refers to an agreement in writing. (Code Civ. Proc., §§ 873.910, 873.920.) Since the parties had not agreed to a partition by appraisal, the trial court rejected the request for partition by appraisal and ordered partition by sale. The statement of decision is inartfully written and takes the trial court’s pronouncement of the parties’ failure to agree to an “accounting by assessment” out of context from the partition order. The statement of decision correctly reflects the trial court’s decision on the action for partition, including the exercise of its equitable discretion not to order an accounting by assessment. We find no legal error in the statement of decision.
The trial court ruled in the trust’s favor on its separate request for an accounting, awarding rental income and credit for the note repayment and interest. The isolated reference to the accounting award in the statement of decision is devoid of the trial court’s findings on these issues. Based upon the evidence presented, the trial court resolved the equitable issues and did not deem it necessary to order a separate accounting.
The attack on the statement of decision is simply based upon the trust’s contention the trial court got the math wrong on the rental income awarded to the trust. This is a challenge to the court’s factual findings. The trial court heard testimony regarding the mortgage payments, the outstanding balance on the loan, the rental income, Shin’s receipt of financial statements from the joint bank account, and the maintenance fees related to the apartment complex. The trial court’s determination on the accounting issue reflects its view of the evidence presented on the trust’s rights that should be enforced in equity. The trial court’s findings on these issues are supported by substantial evidence. There is no legal error on the face of the statement of decision.
DISPOSITION
The judgment is affirmed. Each party to bear their own costs on appeal.
We concur: KLEIN, P. J., CROSKEY, J.