Opinion
H044407
04-22-2020
In re the Marriage of HARATANI and YOUNG. LEA HARATANI, Respondent, v. COLIN YOUNG, Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. FL029274)
In this marital dissolution proceeding filed in September 2009, Colin Young appeals from a judgment entered after a lengthy trial in which the court characterized and divided various assets and allocated liabilities as between Colin and his former spouse of 17 years, Lea Haratani. The court below considered, inter alia, evidence concerning a complex series of purchase, financing, and development transactions with respect to several parcels of real property. Colin asserts a series of challenges to certain portions of the court's judgment characterizing and dividing assets and allocating liabilities as discussed specifically below. We conclude that the court erred in several respects, and therefore we will reverse the judgment and remand the case for a limited retrial of certain issues as specified below.
We refer to the parties and Lea Haratani's mother and sister by their first names for convenience and clarity; we mean no disrespect in doing so. (See Rubenstein v. Rubenstein (2002) 81 Cal.App.4th 1131, 1136, fn. 1.)
I. PROCEDURAL HISTORY
On September 11, 2009, after approximately 17 years of marriage, Lea filed a petition for dissolution of marriage. A status-only dissolution was filed on or about October 20, 2011.
After submission of trial briefs, the court conducted eight days of trial proceedings that concluded on April 12, 2016. The trial concerned principally the characterization and division of the parties' assets and the assignment of responsibility for obligations. The court served a tentative statement of decision on June 28, 2016, and on July 18, 2016, Lea filed a request for clarification concerning that tentative decision. On September 6, 2016, the court filed its final statement of decision (statement of decision). The record does not reflect that Colin filed any papers in response to either the tentative statement of decision or the final statement of decision. A judgment of dissolution on reserved issues was filed on December 21, 2016; the court's statement of decision was attached to, and incorporated by reference in, the judgment.
Neither of these pleadings is part of the eight-volume clerk's transcript filed in this appeal. By order of this court on February 20, 2020, pursuant to Evidence Code section 459, subdivision (a), we have taken judicial notice of the court's tentative statement of decision and Lea's request for clarification of that tentative statement of decision.
Colin filed a timely notice of appeal from the judgment.
II. DISCUSSION
A. Applicable Law
The characterization of property involves " 'the process of classifying property as separate, community, or quasi-community.' [Citation.]" (In re Marriage of Ciprari (2019) 32 Cal.App.5th 83, 91 (Ciprari).) As a general rule, property that is acquired prior to marriage is the separate property of the acquiring spouse. (Fam. Code, § 770, subd. (a)(1).) A change in the form or identity of the property after marriage does not of itself change its character as separate property. (See In re Marriage of Koester (1999) 73 Cal.App.4th 1032, 1037-1038 [mere incorporation of business previously held as sole proprietorship did not transform separate property to community property].) Conversely, all property acquired during marriage is presumptively community property. (§ 760; see Ciprari, supra, at p. 91 [there is a "basic presumption" that property acquired during marriage is community property].) The party contesting the property's community status bears the burden of establishing its separate character. (In re Marriage of Haines (1995) 33 Cal.App.4th 277, 290, disapproved on another point in In re Marriage of Valli (2014) 58 Cal.4th 1396.) This rebuttal of the presumption may be accomplished by "any credible evidence," such as "tracing the asset to a separate property source, showing an agreement or clear understanding between parties regarding ownership status[, or] presenting evidence the item was acquired as a gift." (Ibid.)
All further statutory references are to the Family Code unless otherwise stated.
Where property is being characterized in connection with its division in marital dissolution or separation proceedings, there is a presumption applicable to property acquired in joint form by the parties during marriage. (§ 2581.) Under the statute, "property acquired by the parties during marriage in joint form, including property held in tenancy in common, joint tenancy, or tenancy by the entirety, or as community property, is presumed to be community property. This presumption is a presumption affecting the burden of proof and may be rebutted by either of the following: [¶] (a) A clear statement in the deed or other documentary evidence of title by which the property is acquired that the property is separate property and not community property. [¶] (b) Proof that the parties have made a written agreement that the property is separate property." (Ibid.) Thus, "under section 2581 only a writing may be used to rebut the presumption [citation]" that jointly-held property so acquired during marriage is community property. (In re Marriage of G.C. & R.W. (2018) 23 Cal.App.5th 1, 21, original italics.)
Notwithstanding this presumption under section 2581, a party contributing separate property to acquire either the other spouse's separate property or community property may have a right of reimbursement under section 2640, subdivision (b). (See 2 Hogoboom & King, Cal. Prac. Guide: Family Law (The Rutter Group 2018) ¶ 8:430, p. 8-155 [party contributing separate property to acquire community property asset has prima facie right of reimbursement in the division of that acquired asset upon dissolution].) As defined by the statute, " '[c]ontributions to the acquisition of property,' . . . include downpayments, payments for improvements, and payments that reduce the principal of a loan used to finance the purchase or improvement of the property but do not include payments of interest on the loan or payments made for maintenance, insurance, or taxation of the property." (§ 2640, subd. (a).) The party claiming the right of reimbursement bears the burden of tracing the contribution to a separate property source. (In re Marriage of Cochran (2001) 87 Cal.App.4th 1050, 1057-1058.) The reimbursement award comes " 'off the top' " of the community property item at issue, i.e., prior to division of the community property. (In re Marriage of Walrath (1998) 17 Cal.4th 907, 913.) And the contributing spouse, under section 2640, subdivision (b), has a "vested property right" to reimbursement for his or her separate property contribution. (In re Marriage of Walrath, supra, at p. 919.)
"In the division of the community estate . . . , unless a party has made a written waiver of the right to reimbursement or has signed a writing that has the effect of a waiver, the party shall be reimbursed for the party's contributions to the acquisition of property of the community property estate to the extent the party traces the contributions to a separate property source. The amount reimbursed shall be without interest or adjustment for change in monetary values and may not exceed the value of the property at the time of the division." (§ 2640, subd. (b).)
The transmutation of property "is an interspousal transaction or agreement that works a change in the character of the property. [Citation.]" (In re Marriage of Campbell (1999) 74 Cal.App.4th 1058, 1062.) Under section 852, "[a] transmutation of property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected." The statutory requirement of an " 'express declaration' " is one in which the "writing signed by the adversely affected spouse must expressly state that the character or ownership of the property at issue is being changed. [Citation.]" (In re Marriage of Valli, supra, 58 Cal.4th at p. 1400.) This requirement applies to initial purchases of property from third parties made during the marriage using community funds. (Id. at pp. 1401-1404.)
B. Standard of Review
"The trial court's findings on the characterization and valuation of assets in a dissolution proceeding are factual determinations which are reviewed for substantial evidence. [Citation.]" (In re Marriage of Campi (2013) 212 Cal.App.4th 1565, 1572 (Campi); see also In re Marriage of Klug (2005) 130 Cal.App.4th 1389, 1398 [trial court's determination that property is separate or community in character will be upheld on appeal if supported by sufficient evidence].) " 'In this regard, the court has broad discretion to determine the manner in which community property is divided and the responsibility to fix the value of assets and liabilities in order to accomplish an equal division. [Citations.] The trial court's determination of the value of a particular asset is a factual one and as long as that determination is within the range of the evidence presented, we will uphold it on appeal.' [Citation.]" (Campi, supra, at p. 1572.)
" 'When a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact.' [Citations.]" (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881, original italics (Foreman & Clark).) "In a substantial evidence challenge to a judgment, the appellate court will 'consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the [findings]. [Citations.]' [Citation.] We may not reweigh the evidence and are bound by the trial court's credibility determinations. [Citations.] Moreover, findings of fact are liberally construed to support the judgment. [Citation.]" (Estate of Young (2008) 160 Cal.App.4th 62, 76.) We give deference to the trial court's factual findings "because those courts generally are in a better position to evaluate and weigh the evidence. [Citation.]" (Haworth v. Superior Court (2010) 50 Cal.4th 372, 385.)
An appellate court, in deciding whether there has been a transmutation of property, will independently interpret the relevant written instruments without resort to extrinsic evidence. (In re Marriage of Starkman (2005) 129 Cal.App.4th 659, 664.) In conducting such review, the appellate court is not bound by the trial court's interpretation of the instruments. (Ibid.)
C. Summary of Appellate Claims
The parties presented evidence at trial concerning a number of different assets and obligations that the court referenced in its lengthy statement of decision. Some of the assets and obligations are relevant to Colin's challenges on appeal; others are not directly relevant. Colin's claims on appeal may be broken down into eight categories.
First, Colin argues that the court erred with respect to a number of findings concerning the parties' coastal family residence located on Davenport Landing Road in Davenport (the Davenport Landing property), acquired a few months before marriage. These challenged findings concern (a) the characterization of the asset; (b) the extent of the reimbursement claim awarded to Colin for his separate property contribution to a substantial remodeling project occurring in or about 1996; (c) the requirement that Colin reimburse Lea for one-half of the net proceeds of a 1999 loan secured by the property; and (d) the requirement that Colin reimburse Lea the entire net proceeds of a 2002 loan secured by the property.
Second, Colin contends the trial court erred with respect to certain findings made concerning a low-income condominium on Filbert Street in San Francisco (the Filbert condo), also acquired a few months before marriage. He contends the court erred in its determination of the value of the Filbert condo, which value was used to calculate the amount of his reimbursement. Colin also challenges the court's finding that Colin used the proceeds of a 2005 loan secured by the property for his own purposes and that Lea was therefore entitled to reimbursement of those loan proceeds.
Third, Colin asserts that the court erred with respect to certain findings it made concerning certain undeveloped property on Felton Quarry Road in Felton (the Felton Quarry property). He contends the court erred in finding that he owned a two-thirds interest in the property. Colin also asserts the court erred in its method of determining the value of Colin's interest in the Felton Quarry property.
Fourth, Colin argues that the court erred in assigning an equalizing payment with respect to his interest in a Cessna airplane, which he contends was his separate property acquired before marriage and which he disposed of prior to trial.
Fifth, Colin challenges the court's denial of his request that Lea share the liability of a $260,000 judgment against Colin in favor of Andrew Griscom. Colin argues that the Griscom debt was a community obligation, and that the court erred in finding that Colin was negligent in signing a promissory note in favor of Griscom confirming an obligation that was, at the time, barred by the statute of limitations.
Sixth, Colin contends the court erred in concluding that Lea had no responsibility for an obligation of $200,000 in favor of Richard Hebble, which Colin claims was a community obligation.
Seventh, Colin asserts that the court erred in ordering that Colin make an equalizing payment to Lea of approximately $162,000 for loans made to the community by Lea's mother (Claire) and sister (Joan). He contends that the alleged loans were not established by the evidence, were time-barred, and in some instances were postseparation loans.
Eighth, Colin challenges the court's denial of his request for reimbursement of the proceeds from the $102,000 settlement of a lawsuit relating to the foreclosure of the parties' interest in Santa Cruz property located at 325 John Street (John Street property). He argues further that he was entitled to a contribution from Lea of $300,000, the amount of his equity in the John Street property when it was transferred to the community.
D. Davenport Landing Property
1. Evidentiary Background
In May 1992 (three months before marriage), Colin acquired title in his name to the Davenport Landing property. In acquiring the property, he used funds from the sale of Palo Alto property on Greer Street, property he had inherited from his parents. Deposits from the buyer (Colin) of the Davenport Landing property totaled approximately $146,000; Colin obtained a purchase money loan and signed a deed of trust in the face amount of $393,750.
Colin testified that Lea did not contribute any funds to purchase the property. Lea, however, testified that she contributed funds for the down payment by cashing out her retirement from her former employer, PG&E, so that she could contribute the maximum amount possible. She testified that the rest of the funds came from Colin's real estate business. Lea testified further that she did not know that she was not on the title at the time they acquired the Davenport Landing property.
In February 1994, Colin and Lea signed a grant deed which recited that Colin had previously acquired title as a single man, and that he and Lea were conveying the Davenport Landing property to themselves, husband and wife, as joint tenants. Lea testified that Colin recorded the deed on Valentine's Day shortly after the birth of their first child, and she believed it was a gesture reflecting "Colin's generosity." Colin testified that he had signed the grant deed because Lea had made a request much earlier to place the property in both of their names.
It is unclear from the record why Lea, who at the time was not on record as an owner of the Davenport Landing property, signed the February 1994 grant deed as a grantor.
In 1996 or 1997, Colin and Lea demolished the old home and built a new home on the Davenport Landing property (hereafter, the remodel project or project). The couple self-financed the project, with Colin handling the details of paying the contractors. (As discussed, ante, the amount and source of funds used for the project is a major issue in this appeal.) Lea testified that her stepfather did the electrical work gratis, and her sister operated the bulldozer. Additionally, Lea's mother paid for landscaping and for furniture, and Lea's sister also paid for some things.
In February 1999, the parties refinanced the loan on the Davenport Landing property, with the amount of the new loan being $600,000 (approximately $200,000 greater than the principal amount of the prior loan); Colin and Lea were the borrowers. At that time, there was a grant deed recorded from Colin and Lea (who in the previous deed had been identified as Lea Young) to Colin and Lea Haratani, husband and wife, as joint tenants.
In August 2002, Colin and Lea again refinanced the Davenport Landing property, with Lea executing a deed of trust in the principal amount of $780,000. At the time, Colin signed an interspousal transfer grant deed in which he, as husband of grantee, granted any interest in Davenport Landing property to Lea as her sole and separate property. Colin testified that he executed this deed in order to obtain the new financing.
As recited by the court, the Davenport Landing property was sold in January 2014 pursuant to order of the family court for $1,119,107.76.
2. Statement of Decision
The court noted that there were two down payments provided in escrow for the purchase of the Davenport Landing property, $5,000 and $140,795. It concluded that the $5,000 reflected Lea's contribution from the liquidation of her retirement benefits.
Although the property was originally held in the name of Colin, the court noted that in February 1994, at a time when the property had a value of $625,000, a deed was recorded transferring title to Colin and Lea as joint tenants. The court concluded that the Davenport Landing property "presumptively became community property," with the transfer creating an initial reimbursement right in Colin's favor. Based upon the property as of February 1994 having an equity of $239,000, the court found that Colin was entitled to reimbursement from Lea of one-half of that equity amount, or $119,500.
With respect to the parties' demolition of the existing home and construction of a new home on the property in approximately 1996, the trial court recited that Colin sought reimbursement in the sum of $450,000 of separate property funds he claimed to have contributed to the project. But, the court concluded, Colin "failed to produce a shred of documentary evidence to support this claim; no estimates, no contracts for remodeling, no invoices, no bank statements, no checks, no material bills, no mechanic[']s lien claims." The court accordingly rejected Colin's reimbursement claim of $450,000. Instead, relying on Santa Cruz County building permit records that the court accessed online of which the court took judicial notice (hereafter, the County online records), the court ascertained the likely cost of construction on a per-square-foot basis. It determined that the net construction cost paid by Colin was $250,000, and that Lea would be obligated to reimburse Colin one-half of that amount, or $125,000.
The court noted that in February 1999, Colin and Lea refinanced the property with a new loan of $600,000, and that, as reflected in the closing statement, $218,062.31 was distributed to the borrowers. The court reasoned that because the new loan was a community obligation, and "Colin kept the funds and disposed of them," any existing reimbursement claim in favor of Colin would be reduced by $109,031 (i.e., Lea's one-half of the net loan proceeds).
The trial court recited further that in August 2002, the Davenport Landing Property was transferred to Lea as a married woman as her sole and separate property. At the time, there was an appraisal showing that the property had a value of $1,300,000. There was a new loan obtained in the amount of $780,000 with Lea named as the sole obligor. Through this second refinancing of the property, the community obligation of $583,000 (the estimated principal amount owing on the 1999 mortgage) was paid off. The court found that the August 2002 interspousal transfer grant deed signed by Colin transmuted his community property interest in the property to Lea's separate property. Given that the equity in the property after the new loan was $520,000, the court found that Colin was entitled to have his one-half of this equity, or $260,000, added to his reimbursement claim. From this amount, the court subtracted Colin's one-half community obligation from the 1999 loan ($291,500) paid off with the 2002 refinancing obtained by Lea. The court also subtracted from Colin's reimbursement claim the sum of $197,000, the net proceeds of the new 2002 loan obtained by Lea, which the court found "Colin took . . . after refinance, except that now those proceeds were Lea's as she was the sole obligor on the loan."
The court concluded that the evidence showed that there were two postseparation claims against Colin that were paid out of the proceeds of the 2014 sale of the Davenport Landing property, namely, a personal property tax lien in favor of the County of $212.15 and an abstract of judgment in favor of True North LLC of $9,175.67, which were subject to a right of reimbursement in favor of Lea. Based upon the foregoing, the court concluded that Colin's reimbursement claim—effectively a reimbursement claim in favor of Lea—was a negative $102,418.82. This conclusion was based upon the following calculations, as described in our discussion of the statement of decision, ante:
| (a) | $119,500 | [1/2 of Colin's equity as of 2/94] |
| (b) | $125,000 | [1/2 of Colin's SP contribution to remodel project] |
| $244,500 | [subtotal of (a) and (b) | |
| (c) | <$109,031> | [debit for Lea's share of net 2/99 loan proceeds] |
| $135,469 | [subtotal of (a) - (c) | |
| (d) | $260,000 | [Colin's CP equity interest as of 8/02] |
| $395,469 | [subtotal of (a) - (d) | |
| (e) | <$291,500> | [debit for payoff of Colin's 1/2 of community debt in 8/02] |
| $103,969 | subtotal of (a) - (e) | |
| (f) | <$197,000> | [debit for net proceeds of 2002 loan obtained by Lea |
| <$ 93,031> | [subtotal of (a) - (f)] | |
| (g) | <$ 212.15> | [County personal property tax lien] |
| (h) | <$9,175.67> | [True North LLC abstract of judgment] |
| <$102,418.82> | [total of (a) - (h)] |
|---|
The court noted that the property was sold pursuant to court order on January 24, 2014, and the amount of $1,119,107.76 was placed in the trust account of Lea's counsel; at the time, title of the Davenport Landing property was in the name of Lea, a married woman, as her sole and separate property. The court found that "a transmutation [had] occurred based on the language contained in the deed to Lea."
3. Colin's Claims of Error
Colin asserts that the trial court erred in four material respects with respect to its findings in the statement of decision concerning the Davenport Landing property and Colin's reimbursement rights related thereto. First, he contends that the court erred by characterizing the property as Lea's separate property based upon the August 2002 interspousal transfer grant deed referenced above. Second, Colin contends that the court erred in taking judicial notice of the County online records in reaching its conclusion regarding Colin's claim for reimbursement of the construction costs of the 1996 remodel project. Third, he asserts that the trial court erred in granting Lea reimbursement of $109,031, one-half of the net 1999 loan proceeds, based upon the conclusion that Colin had kept those proceeds and had disposed of them for non-community purposes. Fourth, Colin argues that the court erred in granting Lea reimbursement of $197,000, the entire amount of the net 2002 loan proceeds, also based upon the conclusion that Colin had used those proceeds for his own purposes. We address these contentions—combining our discussion of the challenges to the reimbursement orders relative to the net proceeds of the 1999 and 2002 loans—below.
4. Characterization as Lea's Separate Property
Colin contends in his opening brief that the court erred in characterizing the Davenport Landing property as Lea's separate property as a result of the 2002 transfer of title to Lea. He argues that his testimony was that he still considered it joint property when the deed was signed; the family continued to live on the property together; and he continued to make the mortgage payments consistent with prior practices. Colin asserts that "listing Lea as the sole owner for purposes of obtaining a refinancing should not trump the reality of living together and treating the property as jointly owned with [Colin] taking primary responsibility for it." We reject Colin's claim of error on procedural and substantive grounds.
Colin's argument in his opening brief is unsupported by any legal authority. We may therefore disregard it on that basis. (See Dabney v. Dabney (2002) 104 Cal.App.4th 379, 384 [appellate courts "need not consider an argument for which no authority is furnished"].) His contention is also raised in a perfunctory fashion. "[W]e treat as abandoned" perfunctory arguments. (Nisei Farmers League v. Labor & Workforce Development Agency (2019) 30 Cal.App.5th 997, 1018 (Nisei Farmers).) Moreover, Colin's claim that the evidence justifies reversal of the finding that the property was transmuted in 2002 to Lea's separate property is supported by only one brief citation to the appellate record. An appellate court will disregard evidentiary assertions in appellate briefs that are unsupported by citations to the record. (Regents of University of California v. Sheily (2004) 122 Cal.App.4th 824, 826, fn. 1.) We acknowledge that when he filed his opening brief, Colin was a self-represented litigant However, the rules of civil procedure apply with equal force to self-represented parties as they do to those represented by attorneys. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) Because Colin has not properly raised his claim of error with adequate citations to legal authority or the record, we need not consider it.
We note that after filing an opening brief, Colin retained an attorney who filed a supplemental opening brief on Colin's behalf. That supplemental brief offers no further argument and presents no authority concerning the challenge; it simply asserts that the trial court's decision should be reversed and it should be "recognize[d] that Davenport Landing remained community property." We treat this perfunctory argument as abandoned. (Nisei Farmers, supra, 30 Cal.App.5th at p. 1018.)
Were we to ignore these procedural defects and address the merits, we would find no merit to Colin's claim of error. "Both before and during marriage, spouses may agree to change the status of any or all of their property through a property transmutation. (§ 850.) A transmutation is an interspousal transaction or agreement that works a change in the character of the property. [Citation.] In order for a transmutation of property to occur, statutory formalities must be met. For example, section 852, subdivision (a) provides: 'A transmutation of real or personal property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.' (Italics added.)" (In re Marriage of Campbell, supra, 74 Cal.App.4th at p. 1061.)
Thus, a grant deed in which the grantor "as surviving joint tenant, granted the property to himself and [his wife] as joint tenants" was held to satisfy the requirement of an express declaration under section 852, subdivision (a), so that the property was transmuted to joint tenancy such that, upon the death of the grantor, it became his widow's separate property. (Estate of Bibb (2001) 87 Cal.App.4th 461, 468-469, fn. omitted.) Likewise, where the husband, through an interspousal transfer grant deed, conveyed for valuable consideration to his wife, a married woman, a condominium as her sole and separate property, the appellate court, reversing the trial court, concluded that it contained the requisite formalities of section 852, subdivision (a) to transmute the condominium from community property into the grantee spouse's separate property. (In re Marriage of Kushesh & Kushesh-Kaviani (2018) 27 Cal.App.5th 449, 451, 455 (Kushesh).)
Here, the deed in question, similar to the deed in Kushesh, was an interspousal transfer grant deed, signed by Colin and recorded on August 5, 2002. In the deed, it was recited that for valuable consideration, "COLIN YOUNG, HUSBAND OF THE HEREIN GRANTEE [¶] hereby GRANT(s) to LEA HARATANI, WIFE OF THE HEREIN GRANTOR, A MARRIED WOMAN AS HER SOLE AND SEPARATE PROPERTY" the Davenport Landing property. (Original emphasis.) We independently review whether the relevant documents establish a transmutation of property without resort to extrinsic evidence. (In re Marriage of Starkman, supra, 129 Cal.App.4th at p. 664.) The interspousal transfer grant deed here contained the appropriate language to transmute Colin's community interest to Lea's separate property. (See § 852, subd. (a); Kushesh, supra, 27 Cal.App.5th at pp. 451, 455.) The trial court therefore did not err in reaching the conclusion that the Davenport Landing property became Lea's sole and separate property when Colin's community interest was so transmuted in 2002.
Further, the transmutation was effective, notwithstanding Colin's subjective belief concerning the character of the Davenport Landing property in 2002 after the grant deed was recorded, and his claim that it was recorded simply to facilitate refinancing. "Regardless of the motivations underlying the documents, they contain the requisite express, unequivocal declarations of a present transmutation." (In re Marriage of Holtemann (2008) 166 Cal.App.4th 1166, 1173; see also In re Marriage of Neal (1984) 153 Cal.App.3d 117, 125 [notwithstanding transfer of home from separate property to joint tenancy was motivated by lender's requirements, it had effect of conversion of home to community property], disapproved of on other grounds by In re Marriage of Fabian (1986) 41 Cal.3d 440, 451, fn. 13.)
5. Judicial Notice of County Records
In its statement of decision, the court on its own motion—stating its motivation was an attempt "to get a more accurate idea of the probable extent of the cost" of the remodel project for the Davenport Landing property—took judicial notice of certain documents available online from the County of Santa Cruz. The court described these documents as follows: "[T]he Court accessed the County of Santa Cruz online planning department file to obtain summary information about the building permits applied for and issued."
The court also recited that it had used information in a 2002 appraisal of the property that was a trial exhibit. In utilizing the County online records, the court noted that the parties in their application had sought "to rehabilitate 800 square feet of the existing house and add 800 square feet, in part by turning 700 square feet of uninhabitable space in the garage into habitable space, adding a partial second story, and reconfiguring some interior rooms." In using this information, the court observed that it was "treating [the remodel project] as a rebuild of 1,600 square feet of improvements." The court used this information in conjunction with the 2002 appraisal in which the appraiser (1) assigned a value of $135 per square foot cost of improvements, (2) determined a replacement value of $35,000 for the deck/fireplace/hot tub/gate, and (3) determined a replacement value of $28,490 for the garage/carport. Relying on the County online records and the appraisal, the court concluded that the total cost of the project—contrary to Colin's testimony that he contributed $450,000 of his separate property funds for the work—was $279,490, calculated by multiplying 1,600 square feet of improvements by $135 ($216,000) and adding the deck and garage values found in the appraisal. From this figure, the court subtracted the value of the contributions it found had been made by the Haratani family on the project, resulting in "a balance of investment by Colin in the project of $250,000."
The court indicated in the statement of decision that the value of the Haratani family's contributions was $29,940. Given the figure of $250,000 the court identified as the value of Colin's investment in the project (after deduction of the Haratani family contributions), we conclude that the court meant to identify the value of those contributions as being $29,490.
Colin contends that the court erred by taking judicial notice of the County online records in reaching its conclusion regarding Colin's contribution to the cost of the remodel project. He argues that the "court erred in taking judicial notice of the factual content of" the County online records, and that the court's "resulting determination of square footage vs. costs [sic] was central to [its] ruling." Colin asserts further that "the trial court's unilateral and unannounced decision to delve into county records . . . [was] a gross departure from judicial standards." We conclude that the trial court erred by taking judicial notice sua sponte of the County online records.
The Evidence Code specifies a procedure for notice and an opportunity to be heard before the taking of judicial notice, when the matter "is of substantial consequence to the determination of the action." (Evid. Code, § 455.) Where a party requests, or the court proposes to take, judicial notice of matters under Evidence Code section 452 (permissive judicial notice) or under Evidence Code 451, subdivision (f) (mandatory judicial notice of matters of generalized knowledge universally known such that they cannot be reasonably disputed), "the court shall afford each party reasonable opportunity, before the jury is instructed or before the cause is submitted for decision by the court, to present to the court information relevant to (1) the propriety of taking judicial notice of the matter and (2) the tenor of the matter to be noticed." (Evid. Code, § 455, subd. (a), italics added.) Further, "[i]f the trial court resorts to any source of information not received in open court, including the advice of persons learned in the subject matter, such information and its source shall be made a part of the record in the action and the court shall afford each party reasonable opportunity to meet such information before judicial notice of the matter may be taken." (Evid. Code, § 455, subd. (b).)
Thus, for example, the appellate court reversed an order denying a defendant's motion to dismiss a conviction under Proposition 64 in part because the trial court, in relying on a police report of which it took judicial notice, did not comply with the advance notification requirements of Evidence Code section 455; rather, the trial court "did not indicate it was taking judicial notice of the police report until after it had ruled, depriving [the defendant] of both notice and the opportunity to object." (People v. Banda (2018) 26 Cal.App.5th 349, 360 (Banda).) Likewise, in a case in which it was claimed that the trial court had taken judicial notice of a court file containing financial information, the appellate court held that such judicial notice, absent compliance with Evidence Code section 455 to give the appellant the opportunity "to litigate the propriety of taking judicial notice," would have been improper. (Estate of Nicholas (1986) 177 Cal.App.3d 1071, 1090.)
The trial court here did not comply with Evidence Code section 455 in three respects. First, it did not give advance notice to the parties of its intention to rely on the County online records in deciding Colin's request for reimbursement of the cost of the remodel project. The parties were thus not afforded the opportunity to object. (See Banda, supra, 26 Cal.App.5th at p. 360.) Second, the trial court's statutory compliance here would have been an impossibility; the court did not raise the issue of taking judicial notice of the County online records until after "the cause [had been] submitted for decision by the court." (Evid. Code, § 455, subd. (a).) Third, in accessing the County online records, "the trial court resort[ed] to [a] source of information not received in open court." (Evid. Code, § 455, subd. (b).) It therefore was required to "afford each party reasonable opportunity to meet such information before [taking] judicial notice of the matter." (Ibid.) The trial court did not do that in this case.
Aside from the trial court's failure to give advance notice before taking judicial notice of the County online records, it erred in another respect. "Although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable. [Citation.]" (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113, original italics (Fremont Indemnity); see also Beckley v. Reclamation Bd. of State (1962) 205 Cal.App.2d 734, 741-742 [reports of California Debris Commission subject to judicial notice, but truth of engineering matters contained in them was not subject to judicial notice].) Here, the trial court did more than take judicial notice of the County online records themselves. It took judicial notice of facts contained in the County online records, including that the parties proposed to rehabilitate 800 square feet of the existing home and add an additional 800 square feet of living space. The court further used this information to establish the facts concerning the size of the project, concluding from the parties' proposal to the County that the project actually consisted of "a rebuild of 1,600 square feet of improvements." As noted by Colin, this factual finding is disputed. It was indicated in the 2002 appraisal that the house was 2,617 square feet. The trial court therefore erred in taking judicial notice of the truth of matters contained in the County online records. (Fremont Indemnity, supra, 148 Cal.App.4th at p. 113.)
The court acknowledged there was a discrepancy between 1,600 square feet—the size of the 1996 remodel project as found by the court, based upon it judicial notice of the County online records—and the notation in the 2002 appraisal that the dwelling consisted of 2,617 square feet. (The court erroneously noted in the statement of decision that the appraiser had stated that the dwelling was 2,817 square feet.)
Lea does not address the merits of Colin's claim that the court erred in taking judicial notice of the County online records. Instead, she contends that Colin forfeited the appellate challenge by failing to object below to the court's taking judicial notice of the documents.
It is of course true that a party's failure to object at the trial level to the proposed taking of judicial notice constitutes a waiver or forfeiture of such challenge on appeal. (Younan v. Caruso (1996) 51 Cal.App.4th 401, 406, fn. 3; see also Evid. Code, § 353, subd. (a) [judgment or decision will not be reversed based upon erroneous admission of evidence unless record shows timely objection or motion to strike along with clear indication of ground for objection or motion].) However, the circumstances here differ from those in which a party who fails to preserve an evidentiary objection by raising it at trial forfeits the claim on appeal.
In this instance, there was no proposal by a party or the court to take judicial notice that occurred during the eight-day trial. The case, after argument, was submitted at the conclusion of the trial on April 14, 2016. The first notice that the court had accepted sua sponte additional posttrial evidence did not occur until two and one-half months later, when the court served its tentative statement of decision. Furthermore, as noted above, the trial court failed to follow the procedure prescribed under Evidence Code section 455, subdivision (a) of giving the parties advance notice of the court's intention to take judicial notice of the County online records "before the cause is submitted for decision by the court" (Evid. Code, § 455, subd. (a), italics added) so that they could have the opportunity to comment on "(1) the propriety of taking judicial notice of the matter and (2) the tenor of the matter to be noticed." (Ibid.) And by failing to give notice to the parties that, after submission of the case, it was accessing and relying on the County online records—a "source of information not received in open court"—the court did not comply with Evidence Code section 455, subdivision (b) because it did not "afford each party reasonable opportunity to meet such information before [taking] judicial notice of the matter." (Ibid.) Under these circumstances, we cannot conclude that Colin forfeited his appellate claim by failing to object to the judicial notice of the County online records taken by the court after submission of the case for decision. (See Banda, supra, 26 Cal.App.5th at p. 360.)
Lea responds further that, in any event, the court's findings upon which it concluded that Colin had made a net capital contribution to the remodel project of $250,000 was supported by substantial evidence. We disagree. The basis for the court's conclusion regarding Colin's capital contribution to the project was founded in substantial part upon the County online records. Aside from the procedural error in the court's judicial notice of them, they could not be relied on to establish as a matter of fact, that the project consisted of "a rebuild of 1,600 square feet of improvements." (See Fremont Indemnity, supra, 148 Cal.App.4th at p. 113.) The only evidence at trial identifying the possible size of the new structure built in the project was the 2002 appraisal, which described the dwelling as consisting of 2,617 square feet, or 63 percent larger than the size assumed by the trial court. There was no evidence that there was a second construction project between 1996 and 2002 increasing the size of the dwelling. Accordingly, the trial court's finding that the cost of the remodel project was $250,000—which was based upon a per square foot construction cost multiplied by 1,600 square feet (derived from the County online records), a size that appears to have been greatly understated—was not supported by substantial evidence.
6. Reimbursement of Net Proceeds of 1999 and 2002 Loans to Lea
The trial court concluded that when the Davenport Landing property was refinanced in February 1999 with a $600,000 loan obtained by Colin and Lea as borrowers, "Colin kept the [net] funds [$218,062] and disposed of them." Based upon this finding, the court reduced any reimbursement claim made by Colin by $109,031 to account for Lea's one-half of the net loan proceeds disposed of by Colin.
In its statement of decision, the trial court also addressed the second refinancing of the property in August 2002, in which Lea was the sole obligor. The court found that the new mortgage amount was $780,000, and that the net amount to the borrower after the loan payoff was approximately $197,000. The court concluded that "it appears that Colin took all of the proceeds of the loan after the refinance," and that these proceeds were entirely Lea's. Based upon these findings, the court held that Colin was required to reimburse Lea the full amount of the net proceeds of the 2002 loan, i.e., $197,000.
Colin contends the trial court erred. He argues that the finding that he kept and disposed of the 1999 loan proceeds was not supported by substantial evidence. Colin asserts that the evidence was to the contrary, i.e., that he used the proceeds for community purposes, including funding the community business, Seismic Solutions (Seismic). He further takes issue with the lack of specificity of the statement of decision, including the court's failure to identify the separate property destination to which the loan proceeds were diverted by Colin. Similarly, Colin argues that the court erred in requiring that he reimburse Lea the entire amount of the net 2002 loan proceeds. He asserts that the court's finding is not supported by substantial evidence, and that the evidence presented showed that the 2002 loan proceeds were used for community purposes.
We note initially that Lea did not assert at trial a right of reimbursement with respect to the 1999 or 2002 net loan proceeds. (See In re Marriage of Feldner (1995) 40 Cal.App.4th 617, 625-626 [trial court has no sua sponte duty to consider possibility of reimbursement; "the onus must necessarily be on the paying spouse to specifically request reimbursement"].) In her trial brief, Lea did not even mention either of the refinancing transactions. The absence of any discussion is noteworthy, given that Lea's trial brief contained (1) a chronology of events relevant to the characterization of assets and the distribution of income; (2) a specific discussion of the Davenport Landing property; (3) specific argument concerning Colin's alleged breaches of fiduciary duty in his dealings with respect to the Davenport Landing property, commencing in 2006; and (4) an extensive listing of alleged acts of breach of fiduciary duty by Colin without mention of his having taken community funds (or Lea's separate funds) for his own purpose. Further, Lea's counsel in her opening statement and closing argument made no reference to the 1999 or 2002 refinancing of the Davenport Landing property, and she did not assert any claims relative to Colin's having taken or used any loan proceeds for his own purposes. Thus, such reimbursement claims on behalf of Lea were not before the court. (See In re Marriage of Cochrane, supra, 87 Cal.App.4th at pp. 1057-1058 [burden of proof on party claiming right of reimbursement].)
Further, the court did not, in its statement of decision, provide any detail in support of its conclusion that Colin had taken the proceeds from the 1999 and 2002 loans and had used them for his own purposes. For instance, the court did not identify any evidence supporting this finding, nor did it state the ultimate destination of the funds, such as a private bank account or private real estate or business venture of Colin's. The absence of such detail in the statement of decision would not be fatal were there to have been evidence supporting the finding. (See Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th 1106, 1125 [trial court in a "statement of decision is required only to set out ultimate findings rather than evidentiary ones"].) But here, based upon our review of the record, there was no evidence that Colin used the loan proceeds from either refinancing transaction for his own purposes unrelated to community endeavors. Lea did not present any evidence at trial that Colin used the loan proceeds for his personal purposes. And Lea, on appeal, does not point to such evidence. To the contrary, Lea testified that the proceeds from the 1999 loan were used to fund the Seismic business venture. Colin testified the proceeds were used to pay community expenses.
The Seismic business was started in the mid-1990's by Colin and a friend, Peter Schuyler. It was a business largely run by Colin, although Lea paid some of the bills. The business never broke even and ultimately ceased by approximately 2006. According to Lea's testimony, Colin was its main source of funds, and for some period of time, the couple was providing the business $10,000 per week. In relation to the level of funding, Lea testified that they "never had enough money, and it . . . just got worse and worse." And the court concluded that Seismic—in which Colin's investments exceeded $900,000 and to which "[a] significant portion of their wealth was lost"—"presumably was a community venture."
We conclude that the finding upon which the court held that Colin was required to reimburse Lea for one-half of the 1999 loan net loan proceeds (i.e., $109,031) and for all 2002 net loan proceeds (i.e., $197,000)—namely, that Colin took the loan proceeds and used them for his own purposes—was not supported by substantial evidence. As noted, there was no evidence presented showing that Colin used the loan proceeds for a separate, personal venture. And there was no evidence that in either 1999 or 2002, Colin acquired any property for himself or made any substantial expenditures for any separate venture that would support a reasonable inference that the loan proceeds were taken by Colin and used for a personal purpose. To the contrary, based upon the testimony of Lea that Seismic was a continuing financial drain on the community—testimony credited by the trial court through its finding that the business it presumed to have been a community venture was responsible for the loss of "[a] significant portion of [the parties'] wealth," it is reasonable to infer that at least a substantial portion of the 1999 and 2002 net loan proceeds were used to fund Seismic.
In its statement of decision, the trial court, notwithstanding its conclusion that Seismic "presumably was a community venture," held that Colin should assume as his separate property all rights (including a potential sizable tax write-off), obligations and claims of Seismic that were community-related. The court found as "provisos" to this ruling that Colin would owe no equalizing payment to Lea and she would have no reimbursement obligation to him relative to Seismic. The trial court's conclusion that Colin should be required to reimburse Lea a total of $306,031 from the net proceeds of the 1999 and 2002 Davenport Landing loans—to the extent that the net loan proceeds were used to fund Seismic—is thus inconsistent with its statement of decision concerning Seismic.
In concluding that the court erred in making these reimbursement orders, we acknowledge the broad discretion afforded the trial court in determining the manner of the division of community property, and we review the court's factual findings concerning the character and value of the parties' property for substantial evidence. (In re Marriage of Sivyer-Foley & Foley (2010) 189 Cal.App.4th 521, 526 (Foley).) Thus, for instance, we review for substantial evidence a trial court's finding that a party has adequately traced and identified the source and funds of his or her separate property. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) " 'Substantial evidence' is evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value. [Citations.] 'Substantial evidence . . . is not synonymous with "any" evidence.' Instead, it is ' " 'substantial' proof of the essentials which the law requires." ' [Citations.] The focus is on the quality, rather than the quantity, of the evidence . . . . [Citations.] Inferences may constitute substantial evidence, but they must be the product of logic and reason. Speculation or conjecture alone is not substantial evidence. [Citations.]" (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651 (Roddenberry).) Here, the finding that Colin took and used the net proceeds from the 1999 and 2002 loans for his own purposes was not supported by substantial evidence. (See Foreman & Clark, supra, 3 Cal.3d at p. 881.)
E. Filbert Condo (San Francisco)
1. Evidentiary Background
Lea testified that, prior to marriage and at Colin's request, Lea signed an application as a low-income qualifier to buy the Filbert condo in San Francisco. (She was unemployed at the time.) In December 1991 (approximately 10 months before Colin and Lea married), Lea purchased the Filbert condo; the total purchase price was $88,000, allocated between the purchase of the condo ($58,000) and the purchase of the parking space for the condo ($30,000). The sale was reflected in grant deeds recorded on December 27, 1991, transferring title to the Filbert condo to Lea, a single woman. At the time, Lea understood that Colin wanted her to have the Filbert condo as "a gesture of [his] generosity."
Lea testified that she did not recall the source of the funds used to buy the Filbert condo. Nor did she know if there were any loans taken out at the time of the purchase. But the record reflects that under the contract of sale and closing documents, the condo unit itself was purchased for $58,000, and the parking space associated with the unit was purchased through seller financing of $30,000. The record also reflects that Lea signed a $30,000 promissory note due on or before April 30, 1992, which was secured by deed of trust signed by Lea in favor of the sellers and recorded at the time of the sale.
Colin testified that he bought the Filbert condo in 1991 for $90,000 as a cash purchase. He paid for the condo unit and the parking space assigned to the unit. Colin testified that Lea did virtually all of the work necessary to purchase the Filbert condo.
Colin testified (ambiguously) that although there was a carry-back note to the seller that was part of the purchase (presumably referring to the $30,000 note and deed of trust signed by Lea), Colin "paid that also." The record does not contain an explanation of this statement.
Lea testified that in 2005, Colin arranged for a loan to be taken out against the Filbert condo in the amount of $225,000. Because it was low-income property and would not have sold for $225,000 at the time, she was surprised that Colin was able to obtain a loan for that amount. The record reflects that Lea signed a deed of trust (recorded May 23, 2005) securing a note for $225,000 encumbering the Filbert condo.
Colin testified that he signed an interspousal grant deed recorded on May 23, 2005, in which he, as husband of the grantee, granted any interest in the Filbert condo to Lea, a married woman, as her sole and separate property. He signed the deed to obtain financing in Lea's name.
2. Statement of Decision
In its statement of decision, the trial court found that the Filbert condo was purchased before marriage in Lea's name because she was able to qualify at the time based upon her income. The court concluded that Colin paid $90,000 "either in cash or by paying off a purchase money note for the property and an associated parking space when it was due." The court noted that title to the Filbert condo had always been held by Lea, and the court held that the May 2005 interspousal grant deed had the effect of "transmut[ing] any ownership claim the community might have." At the time the deed was signed, the court found, "Colin wanted the proceeds [of the $225,000 loan] for investing . . . and Lea does not know what Colin used the proceeds of the loan for."
Although the record shows that the purchase price of the Filbert condo unit and parking space totaled $88,000, the closing statements show that the buyer submitted approximately $2,200 in additional funds for closing costs.
The court concluded that Colin's "taking of these [loan] funds and us[ing] them for undisclosed purposes represented repayment in full of the right of reimbursement he had to the property based upon its original purchase price, leaving a balance due Lea of $135,000 for the excess borrowed funds for which she became solely responsible." Accordingly, the court (1) confirmed the Filbert condo as Lea's separate property, (2) held that Colin owed Lea reimbursement of $135,000, and (3) any claim by Colin for reimbursement for the funds he used to purchase the property was satisfied from the remaining $90,000 in loan proceeds he acquired when the loan funded.
Colin claims that the court erred in its valuation of the Filbert condo as of 2005 when Colin executed the interspousal grant deed, and in its conclusion that Lea had a right of reimbursement from Colin for the 2005 loan proceeds. We address those two claims below.
3. Valuation of Filbert Condo
Colin contends there was no substantial evidence to support the court's finding regarding the actual value of the Filbert condo in 2005 for purposes of calculating the amount of reimbursement to which Colin was entitled. He asserts that "[t]he trial court impliedly concede[d] that the community may have had an ownership interest [in the Filbert condo] before [the loan was procured in 2005]." Colin argues that the court admitted in its statement of decision that it lacked evidence to establish the value of the property when Colin signed the interspousal deed in May 2005, and therefore, Colin contends, the court's use of the December 1991 purchase price of $90,000 was arbitrary.
Colin's argument concerning the valuation of the Filbert condo as of 2005 fails for both procedural and substantive reasons. First, in arguing that the court's valuation conclusion was not supported by substantial evidence, Colin fails to cite to the relevant evidence in the record concerning this issue. An appellant asserting a substantial evidence challenge to a judgment has the obligation to present a fair description of the underlying evidence. (Foreman & Clark, supra, 3 Cal.3d at p. 881 [appellants must " 'set forth in their brief all the material evidence on the point and not merely their own evidence' "].) " 'A party who challenges the sufficiency of the evidence to support a particular finding must summarize the evidence on that point, favorable and unfavorable, and show how and why it is insufficient. [Citation.]' [Citation.] Where a party presents only facts and inferences favorable to his or her position, 'the contention that the findings are not supported by substantial evidence may be deemed waived.' [Citation.]" (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738, original italics (Schmidlin).) And—as a point relevant here because the case involves a trial presented in an eight-volume reporter's transcript—the appellant's burden to provide a fair summary of the evidence "grows with the complexity of the record. [Citation.]" (Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 290 (Western Aggregates).) Based upon Colin's failure to provide a fair description of the evidence with appropriate record citations, we deem his substantial evidence challenge to the court's valuation finding waived. (Schmidlin, supra, at p. 738.)
Second, even were we to address the merits of Colin's waived argument, it is based upon the assumption that the trial court, in fact, reached its conclusion by finding that the Filbert condo had a fair market value in 2005 of $90,000, its original purchase price. We do not read the statement of decision to include this finding. Rather, the court found that Colin had a right of reimbursement of $90,000, based upon the original purchase price, i.e., Colin's original contribution, to the property, when it was acquired in 1991 in Lea's name. Therefore, Colin's claim that the court erred in its valuation of the Filbert condo fails on this basis as well.
Lea does not respond to Colin's arguments concerning the valuation of the Filbert condo, and, more specifically, she does not indicate that she disputes the trial court's finding that Colin had a right of reimbursement with respect to his original contribution to the Filbert condo purchase.
Third, Colin argues that "[t]he trial court should have required more evidence from the parties and/or experts . . . before making the ruling on the Filbert property." He cites no legal authority in support of this position; we therefore deem it abandoned. (In re Marriage of Abargil (2003) 106 Cal.App.4th 1294, 1300-1301 (Abargil).)
We therefore reject Colin's claim of error that there was no substantial evidence to support the trial court's purported valuation of the Filbert condo.
4. Reimbursement of 2005 Loan Proceeds
Colin contends the court erred in finding that he had used for his own purposes the $225,000 from the 2005 loan secured by a deed of trust against the Filbert condo. He asserts that no substantial evidence supported this finding.
Our analysis of this claim of error is similar to our consideration, ante, of Colin's claim of error regarding the order requiring him to reimburse Lea the net proceeds of the 1999 and 2002 loans secured by the Davenport Landing property. As was also the case with those loans, Lea did not assert a right of reimbursement with respect to the 2005 loan she procured that encumbered the Filbert condo. (See In re Marriage of Feldner, supra, 40 Cal.App.4th at pp. 625-626 [party seeking reimbursement has onus of making specific request].) Lea indicated in her trial brief that the Filbert condo should be confirmed as her separate property but did not seek reimbursement from Colin for the 2005 loan proceeds. There was no mention of the Filbert condo or the loan in the opening statement of Lea's counsel. And in her discussion of the Filbert condo during closing argument, Lea's counsel argued that (1) it "was unquestionably separate property"; (2) Colin obtained $225,000 as a result of the 2005 financing; and (3) "[Colin's] testimony [was] that he [had] no memory of where the proceeds went, but that he needed it for investment purposes." The only reimbursement issue with respect to the Filbert condo presented at trial was whether Colin was owed a right of reimbursement for managing the property after the parties separated—a claim that was rejected by the trial court. A claim by Lea for reimbursement by Colin of the 2005 loan proceeds was therefore not before the court. (See In re Marriage of Cochrane, supra, 87 Cal.App.4th at pp. 1057-1058 [burden of proof on party claiming right of reimbursement].)
As we discuss, ante, there was no testimony from Colin that he needed the 2005 loan proceeds for investment purposes.
The trial court—as was the case with respect to its decision concerning the net proceeds of the 1999 and 2002 loans against the Davenport Landing property—provided no detail in support of its finding that Colin "[took] these [loan] funds and us[ed] . . . them for undisclosed purposes." It did not explain in its statement of decision the basis for this finding, other than noting (1) that "Colin wanted the proceeds for investing . . . [and (2)] Lea does not know what Colin used the proceeds of the loan for." Our review of the record indicates that the evidence did not support these two statements. First, as to the court's finding that "Colin wanted the proceeds for investing," Colin did not so testify. In the passage cited by Lea on appeal on this issue, Colin was asked on cross-examination whether he had testified in his deposition that the reason for obtaining the financing was to invest it; he did not confirm that deposition testimony in his answer, and the deposition testimony itself was not presented in the record. There is therefore no evidence that Colin's purpose for the 2005 loan was to invest the proceeds. Second, as to the court's finding that "Lea does not know what Colin used the proceeds of the loan for," Lea's actual testimony was that the loan proceeds were used to pay "[d]ebts or . . . for payment of Davenport. And I don't know." She testified she did not participate in managing the proceeds from the loan, "[b]ecause Colin did the business, and [Lea] did the domestic." Lea recalled generally, however, that the loan was "just basically to save the house."
The relevant portion of the reporter's transcript of Colin's cross-examination reads as follows: "Q And in your deposition you stated that the reason for the financing was so that you could invest it; is that right? [¶] A I do not see my deposition in front of me. [¶] Q I'm asking about what you stated in your deposition. You stated that it was so that you invest [sic] the money. Do you recall that? [¶] A I actually do not recall that. [¶] Q Okay. Well if you were to have invested it at this time, what would you be investing it in? What did you do with the proceeds from the loan on the Filbert property in 2005? [¶ By Colin's counsel:] Do you have the page and line number, and volume? [¶] Q [By Lea's counsel:] Can you answer the question? [¶] I am thinking back at 2005, and thinking what we might have done with the funds and why we—it might have been that—we might have had several. Actually, I don't remember any investments at that time. [¶] Q Okay. Did you just live off the proceeds? [¶] A We may have."
The court's finding that Colin "[took] these [loan] funds and us[ed] . . . them for undisclosed purposes"—which was the underpinning for its conclusion that Lea was entitled to reimbursement of the $225,000 loan proceeds—was not supported by substantial evidence. There was no evidence presented that Colin used the loan proceeds for a separate, personal venture. Further, there was no evidence—other than a Hawaiian property investment that Colin made using funds lent to him by a friend, Andrew Griscom, in either 2003 or 2005 (depending on whether reliance is placed, respectively, upon a a written account produced by Colin at trial, or on his trial testimony)—that there were any business or real estate ventures in 2005 to which Colin may have directed the loan proceeds. While there was no direct evidence presented by either party (such as a tracing of the loan proceeds), the record suggests that the funds were used for community purposes, including Lea's testimony that the funds were used "just basically to save the [Davenport Landing] house."
Acknowledging once again the trial court's broad discretion in determining the manner of the division of community property, our review of the court's factual findings concerning the character and value of the parties' property is based upon whether they are supported by substantial evidence. (Foley, supra, 189 Cal.App.4th at p. 526.) "[F]ocus[ing] . . . on the quality, rather than the quantity, of the evidence," and mindful that "[s]peculation or conjecture alone is not substantial evidence" (Roddenberry, supra, 44 Cal.App.4th at p. 651), we conclude that the trial court's finding that Colin took the 2005 loan proceeds and used them for his own purposes—which finding was the basis for concluding that Lea was entitled to reimbursement from Colin—was not supported by substantial evidence. Since this finding was the basis for the court's crediting Lea with the entire $225,000 of the loan proceeds—by granting a right of reimbursement to Lea of $135,000 and by determining that Colin had effectively already received reimbursement of his $90,000 initial separate property investment in the Filbert condo—the court's order granting reimbursement to Lea of the $225,000 loan proceeds is reversed. Based upon this conclusion, Colin is entitled to receive a $90,000 credit for his contribution to the original purchase price of the property.
F. Felton Quarry Property
1. Evidentiary Background
According to Lea's testimony, at or about the time of the purchase of an interest in the Belvoir Hotel in Fremont (April 1994, nearly two years after marriage), Colin purchased certain undeveloped land in Felton, the Felton Quarry property. Lea testified she had no information as to how the property was purchased. Colin testified that in April 1994, he purchased the 78-acre Felton Quarry property, which included a 48-acre landlocked parcel upon which old-growth redwood was situated. He used his separate property for the purchase. At the time, Lea, as wife of grantee, executed a quitclaim deed, recorded April 12, 1994, in which she granted any interest she had in the Felton Quarry property to Colin as his separate property.
Colin testified that in a grant deed recorded September 9, 1996, he transferred the Felton Quarry property without consideration to Andrew Griscom. At some later date, the property was transferred to Glenn Reynolds and Nancy Bell. Colin, on a date not indicated in the record, received a deed relative to the Felton Quarry property from Reynolds; its whereabouts were unknown to Colin, and it had not been recorded. Colin testified that he believed the property was subdivided in 2001, resulting in there being a 70-acre parcel (in which he had an ownership interest) and an eight-acre parcel (in which he apparently did not own an interest). At the time of trial in 2016, Colin was residing on the Felton Quarry property.
Colin, in his verified schedule of assets and debts dated March 4, 2010, declared that he had a two-thirds ownership interest in the Felton Quarry property, with Reynolds and Bell collectively holding a one-third interest. He stated that the fair market value of his interest was $300,000. Colin provided the same information concerning his ownership interest and its value in a verified schedule of assets and debts dated January 17, 2013.
2. Statement of Decision
In its statement of decision, the trial court found that although the Felton Quarry property was held in the names of Reynolds and Bell, "all of the objective indicia indicate [sic] that during the marriage, Colin reacquired the property in a transaction that was not disclosed to Lea. He lives on the property with his friend[,] Barlow Schuyler, he gets paid a management fee, he has arranged a timber harvest and collected revenues from that, and . . . continues to make the very high rate (12.5%) interest only payments on the Tedrowe note." The court found that this constituted an "undisclosed and essentially untitled 2/3 interest in the property [that] is a community asset that is worth $300,000 as testified to by Colin or as stated in his disclosures . . . subject to the Tedrowe loan of $160,000." The trial court assigned the Felton Quarry property and any business opportunities associated with it to Colin, subject to the $160,000 Tedrowe loan. Determining that the property interest had a net value of $140,000, in assigning it to Colin, the court ordered that he provide an equalizing payment to Lea of $70,000. The court also assigned the Tedrowe note obligation to Colin without offset to Lea, in light of Lea having neither been a party to the note nor informed of it.
Elsewhere in the statement of decision, the court described the Tedrowe note as a "hard money loan from Tedrowe Realty and Investments in the amount of $160,000 providing for interest only payments monthly at 12.5 %" that was obtained by Colin in 2006 or 2007 "to benefit [Colin's] friend, Ray Trussell." The funds from the Tedrowe loan were provided to Trussell in an effort to save property he owned in Barcelona. The court indicated further that the Tedrowe note "may be secured by the Felton Quarry property and other collateral." (Italics added.) The court confirmed this debt as Colin's separate obligation. Colin does not challenge that order on appeal.
3. Colin's Challenges Re Felton Quarry Property
Colin challenges the court's rulings concerning the Felton Quarry property. He contends that there was no substantial evidence to support the court's finding that he owned a two-thirds interest in the property. He contends that the "court failed to obtain or consider sufficient evidence to support [the] extreme ruling as to 'constructive' ownership, and did not cite any evidence presented by the actual owners of the property." Colin also appears to challenge the court's valuation of the interest in the Felton Quarry property. Colin requests that the ruling be reversed and the matter "remanded for further fact finding and expert evaluation."
We reject Colin's claims of error. We conclude, on several procedural grounds, that Colin's arguments are waived and abandoned. First, in asserting a lack of sufficient evidence, Colin provides no description of the evidence presented on the issue and fails to cite to the reporter's transcript in any respect. He has therefore waived his challenge on this basis. (Schmidlin, supra, 157 Cal.App.4th at p. 738.) Second, Colin has cited no legal authority in support of his position that the court erred in finding that Colin possessed a two-thirds ownership interest in the property and in valuing that interest as $300,000; we therefore deem it abandoned. (Abargil, supra, 106 Cal.App.4th at pp. 1300-1301.) Third, Colin's argument is conclusory, and is not developed in any fashion. We therefore deem it abandoned on this basis as well. (Nisei Farmers, supra, 30 Cal.App.5th at p. 1018 [appellate court will deem arguments in briefs raised in perfunctory fashion abandoned].)
Moreover, even were we to consider Colin's position, we would conclude it lacks merit. There was a factual basis supporting the court's finding of the existence of Colin's unrecorded two-thirds ownership interest in the Felton Quarry property. In two separate schedules of assets and debts signed in March 2010 and January 2013, Colin declared under penalty of perjury that he had a two-thirds ownership interest in the property, with Reynolds and Bell having a collective one-third interest. He confirmed in his testimony that he had signed both schedules and did not deny the accuracy of the statement in each of them regarding his two-thirds ownership interest. And Colin himself explained inferentially that the reason he was not on record title was due to his having received a deed from Reynolds that was not recorded, a deed he "ha[d] not seen . . . in years." There was substantial evidence supporting the court's finding that Colin had an unrecorded two-thirds interest in the Felton Quarry property.
Likewise, there was a factual basis for the trial court's conclusion that the unrecorded two-thirds interest had a gross value of $300,000 and a net value of $140,000. In both the 2010 and 2013 schedules of assets and debts, Colin declared under penalty of perjury that the gross fair market value of his interest was $300,000, and that there was outstanding debt against that interest of $160,000. The court was permitted to rely upon the opinion of the owner of the interest in the property, Colin, to determine its value. (See Evid. Code, § 813, subd. (a)(2).) Furthermore, the court's reliance upon the accuracy of Colin's disclosures in the two schedules was consistent with the statutory policy requiring the parties in a dissolution proceeding to provide timely, complete and accurate disclosure of assets and liabilities. (See § 2100.)
The trial court did not err in its rulings concerning the Felton Quarry property.
G. Cessna 182 Airplane
1. Evidentiary Background
As disclosed in his verified schedule of assets and debts as of March 2010, Colin owned a one-half interest in a Cessna 182 airplane with his partner, Reynolds; the value of that interest was $40,000. Colin reiterated this information in his January 2013 verified schedule of assets and debts. Colin confirmed this partnership in his testimony. Colin testified that he no longer had the plane, and that Reynolds "essentially took [the plane] over" at an unspecified time because Colin stopped flying, could no longer afford the plane, and stopped paying its insurance. Colin explained that the portion of the bills for the plane for which he was responsible accumulated because he "was strapped for money," and he "[came] up with the idea that it really became [Reynolds's] plane because [Colin] couldn't pay [his] side of the expenses on that plane." Colin testified that the asset was acquired before marriage.
Colin also listed on his March 2010 and January 2013 verified schedules a debt of $46,000 owed to Reynolds. In his testimony, Colin tied this debt generally to the Cessna airplane, but it was unclear from his testimony whether that obligation reflects unpaid expenses relative to the Cessna.
2. Statement of Decision
The trial court held that the Cessna 182 airplane owned by Colin in partnership with Reynolds would be confirmed to Colin with a value of $40,000, subject to Lea's right to an equalizing payment of $20,000. And any claims by Reynolds relative to the Cessna were confirmed by the court as the separate indebtedness of Colin in light of his failure to disclose them to Lea.
3. Colin's Claim of Error
Colin challenges the court's decision assigning an equalization payment from Colin to Lea for the Cessna airplane. He argues that ordering an equalization payment was error "[b]ecause the airplane was [Colin's] personal property at the outset of the marriage, never became community property, and was no longer either SP or CP at the end of the marriage."
There was a paucity of evidence and there were contradictory contentions concerning the Cessna airplane. The only evidence at trial concerning the origin of the Cessna partnership was Colin's testimony—not responsive to the question of why he borrowed $46,000 from Reynolds—that "[a]nd by the way, I owned [the plane] prior to marriage, so I find it somewhat irrelevant, but . . . ." This testimony notwithstanding, Colin did not list the Cessna airplane or the partnership with Reynolds as separate property in the two verified schedules of assets and debts he signed in March 2010 and January 2013. Specifically, although there is a column in the schedules to identify assets that are "SEP. PROP.," Colin did not identify the Cessna as separate property in either of the two places in the two schedules in which he listed the Cessna airplane and Cessna partnership. In contrast, Colin did identify certain assets (e.g., the Davenport Landing property and the Filbert condo) in the two schedules as his separate property.
There was also evidence from a financial planner concerning the character of the Cessna asset. Michael Meara was retained by Colin and Lea in or about 2006. As a result of his engagement, Meara prepared a schedule of the parties' assets which was based mainly on information from Colin. In two of the schedules, Meara listed the Cessna airplane as a joint asset. But Meara explained that his methodology was that if he did not know that a particular property was separately owned by Colin, he listed it as joint property.
Colin explained later in his testimony that when he completed the schedules, he did not understand what "R" meant in the "SEP. PROP" column. The trial court could appropriately disregard this explanation. (See Niko v. Foreman (2006) 144 Cal.App.4th 344, 364-365 (Niko) [witness credibility is within trial court's discretion, and the reviewing court will defer to such credibility findings].)
Lea's position concerning the Cessna airplane was likewise contradictory. In verified schedules of assets and debts she signed on January 3, 2013, and in October 2015, Lea identified the Cessna airplane as Colin's separate property. In the trial brief filed on her behalf, however, Lea requested that the court "[a]ssign to [Colin the] . . . CP Cessna plane at $40,000 value, per his preliminary disclosure." And in closing argument, Lea's counsel urged the trial court that, "to the exten[t] that the parties have any interest in that plane," it should be confirmed to Colin along with any debt to Reynolds. There was no mention by counsel in her argument of an equalizing payment.
We conclude that Colin's claim of error must be rejected on procedural and substantive grounds. Colin has cited no legal authority in support of his position that the court erred in confirming the Cessna airplane to Colin with an equalizing payment to Lea; we therefore deem it abandoned. (Abargil, supra, 106 Cal.App.4th at pp. 1300-1301.) Colin's argument is also perfunctory, and we deem it abandoned on this basis also. (Nisei Farmers, supra, 30 Cal.App.5th at p. 1018.)
To the extent that consideration of the merits is warranted, Colin's arguments are unpersuasive. We note that his two key evidentiary points have limited or no support in the record. Those points, as stated in his opening brief, are that the Cessna airplane (1) "was [his] personal property at the outset of the marriage [and] never became community property"; and (2) "was no longer either SP or CP at the end of the marriage," because "[l]ong before the hearings in this case, [Colin] owned no financial interest of any kind in the airplane." As to the first issue, the only evidence Colin cites was his testimony, nonresponsive to the question posed, that he "owned [the Cessna] prior to the marriage." There was no evidence presented as to the circumstances under which the plane was purchased, the source of the funds used for the purchase, or facts showing why, as Colin claims here, after the parties married, the Cessna "never became community property." Colin's second point likewise finds limited evidentiary support. Although Colin testified that he no longer had the plane, and that Reynolds "essentially took [the plane] over" because Colin was not using it and was not paying for its insurance, he provided no specifics; he introduced no evidence concerning when or precisely how he surrendered his interest in the plane to Reynolds, and he offered no documentation concerning his assertion that he no longer owned the airplane.
Since Colin disclosed the Cessna as an asset in his verified schedule signed January 17, 2013, his claimed surrender of the plane to Reynolds presumably occurred sometime after that date, i.e., years after the parties separated.
It was within the trial court's discretion to find, or not find, Colin's testimony concerning the Cessna airplane credible. (See In re Marriage of Meegan (1992) 11 Cal.App.4th 156, 162 ["[c]redibility is a matter within the trial court's discretion"].) The court, in fact, was, in general, very critical of Colin's testimony. As it observed in the statement of decision: "[H]aving heard both parties testify, the Court is left with the impression that where necessary, Colin made up numbers that support his version of the events as he was unable to provide documents on most important financial issues. The Court finds him to be clearly the less credible witness as between the parties." (Italics added.) It is apparent from the court's conclusion that Lea was entitled to an equalizing payment for the Cessna airplane that the court did not find credible his very limited testimony concerning his claims that he (1) owned the Cessna before marriage and (implicitly) that he continued to own it as separate property during the marriage, and (2) no longer held an interest in the Cessna. We will not disturb that implied credibility determination (Niko, supra, 144 Cal.App.4th at pp. 364-365), and we thus conclude there was no error.
H. Griscom Obligation
1. Evidentiary Background
Colin testified that in 2005, his friend, Andrew Griscom, loaned Colin $73,000, which Colin in turn invested in the Kaohe Homestead project in Hawaii with a friend, Ray Trussell. (The written account, discussed, post, identified this loan as one having been made in 2003.) Colin never repaid the loan.
In his verified schedule of assets and debts dated March 4, 2010, Colin disclosed that there was a debt for $190,000 identified as the "Andrew Griscom note." This entry related to a promissory note Colin signed on February 3, 2010 in favor of Griscom. (Although Colin's disclosure used the figure of $190,000, it is apparent from the record that the amount of the note was $186,252.72.) Colin testified that he did not recall talking with Lea prior to signing the promissory note.
The promissory note signed by Colin was not made part of the record.
In his testimony, Colin identified a written account of loans made to him by Griscom contained on Griscom Properties letterhead. (Griscom did not testify at trial, and there was no clear evidence that Griscom was the person who prepared the accounting.) That accounting reflected five separate loans made to Colin: (1) loan of $100,000 "For Seismic" on August 18, 2003; (2) loan of $5,101.54 "To CITI Mortgage—For Colin and Lea" on December 15, 2004; (3) loan of $17,333.41 "To Colin—for Estimated State Income Tax" on September 4, 2003; (4) loan of $73,030 "To Ray Trussell—For Colin" on October 3, 2003; and (5) loan of $45,000 "To Ray Trussell—For Colin" on October 3, 2003. The accounting reflected that, as of February 2, 2010, the amount due on the loan, after addition of interest charged at 12 percent and the crediting of payments, was $186,252.72.
Colin was later sued by Griscom, and Colin stipulated to the entry of judgment in the amount of $260,000; the judgment was filed February 27, 2014. Colin testified that the judgment amount reflected the sum reflected in the promissory note, together with interest and attorney fees. Included in the judgment amount was the $73,000 Colin testified he had borrowed from Griscom to invest with Trussell in the Hawaii project. Griscom filed a judgment lien against the proceeds of the sale of the Davenport Landing property.
Colin testified that after signing the note in February 2010 and before stipulating to judgment in February 2014, Colin made a $10,000 payment to Griscom to reduce the debt. The record does not indicate how or whether this payment was accounted for in the $260,000 amount of the judgment to which Colin ultimately stipulated.
2. Statement of Decision
The trial court held that Colin had acted negligently and in breach of his fiduciary duty by signing the postseparation promissory note of $186,252.72 in favor of his "boyhood friend." The court explained that, but for Colin's actions in signing the note, "Griscom could not have collected on this debt." It found that Colin's actions were "in breach of fiduciary duty as he intended to wrongfully pass on an inflated claim to Lea without disclosure or consent." The court—referring to the accounting of the loans on Griscom Properties letterhead—found that the advances to Colin made by Griscom that comprised the indebtedness stated in the promissory note "appear[ed] to be subject to a valid [defense] that they were barred by the statute of limitation at the time that Colin signed the note." The court also took issue with the interest charged by Griscom as reflected in the accounting, concluding that the loan "amounts were calculated to bear interest at a usurious compounded rate."
Based upon these findings, the trial court held that funds payable to Lea as a result of the sale of the Davenport Landing property or any other property received by her in the judgment herein would be unencumbered by any lien in Griscom's favor or otherwise subject to any claim by Griscom. The court concluded further that Colin's actions relative to the note and stipulated judgment "were collusive with Griscom," entitling Lea to an award of attorney fees from Colin for the cost of defending against Griscom's claims asserted through the judgment lien.
3. Colin's Claims of Error
Colin challenges the court's decision finding that he had been negligent in signing the promissory note in favor of Griscom relative to a debt that appeared to have been time-barred. He argues that the language used by the court in its statement of decision—that the obligation " 'appears to be subject' " to a statute of limitations defense—is indicative that there was no substantial evidence to support the judgment. Colin's counsel in his supplemental opening brief also raises a generalized challenge to the court's finding that Colin breached his fiduciary duty with respect to signing the Griscom promissory note. Colin's arguments are without merit.
In asserting there was no substantial evidence to support the court's findings, Colin provides almost no description of the evidence presented on the issue. He has therefore waived his challenge on this basis. (Schmidlin, supra, 157 Cal.App.4th at p. 738.) Second, Colin has cited no legal authority in support of his position that the court erred in finding Colin acted negligently because the obligations appeared to have been time-barred. We therefore deem the argument abandoned. (Abargil, supra, 106 Cal.App.4th at pp. 1300-1301.) Third, Colin's argument is a perfunctory one that is little more than a conclusory assertion, without analysis, that the trial court erroneously found the obligation, prior to Colin's execution of the note, to have been time-barred. We therefore deem this undeveloped argument abandoned on this basis as well. (Nisei Farmers, supra, 30 Cal.App.5th at p. 1018.)
Aside from the procedural defects with Colin's position, in asserting that the trial court did not provide an adequate explanation of its finding that the obligations to Griscom appeared to have been time-barred at the time Colin signed the promissory note, Colin disregards both the evidence that was presented and the duty imposed upon him at trial to marshal and present evidence to support his claim that the Griscom judgment was a community debt. (See In re Marriage of Warren (1972) 28 Cal.App.3d 777, 784 [party asserting existence of community debt has burden of producing evidence of its existence].) On their face, the five loans that comprised the obligation stated in the note and the judgment appear to have been time-barred. They were for loans made in August 2003, September 2003, October 2003 (two), and December 2004. As the obligations appear to have been oral, any action by the creditor Griscom to recover under them brought more than two years after breach would have been time-barred. (See Code Civ. Proc., § 339, subd. (1).) The evidence does not show, as to each of the loans, the date agreed-upon for repayment. We observe that it was within Colin's power at trial to present evidence that the promissory note upon which the Griscom judgment was based did not constitute an agreement by Colin to pay an underlying indebtedness that was at the time of the note's execution time-barred. But it strains credulity that the loans would have had agreed-upon due dates that were many years after they were made—i.e., that they had due dates in or after February 2008, two years before Colin executed the promissory note.
Further, assuming that under the oral loan arrangements between Griscom and Colin, the amounts lent were due upon demand, Griscom could not have suspended the running of the statute of limitations indefinitely; the obligor is afforded a reasonable time, generally at most the time period provided in the statute of limitations, to make demand for payment. (Bass v. Hueter (1928) 205 Cal. 284, 287 (Bass).) Here, such reasonable time for Griscom to have asserted a demand for payment would have been no later than August 2005, as to the earliest loan, and December 2006, as to the latest loan. Thus, at the time Colin executed the note in February 2010 confirming the loans from Griscom, action on their recovery was plainly time-barred under Code of Civil Procedure section 339, subdivision (1). (See, e.g., Fall v. Lincoln Mortg. Co. (1931) 115 Cal.App. 651, 655 [claim for money had and received governed by two-year statute of limitations from date money received; action brought four and one-half years after money received, where no demand thereafter was made, was time-barred].) There were therefore reasonable grounds for the trial court's conclusion here that the loans were time-barred at the time Colin signed the note in February 2010, and that, therefore, "Colin's actions in signing the Promissory Note were negligent in that Griscom could not have collected on this debt absent Colin's actions."
Moreover, the trial court was clearly very skeptical about Colin's actions and the loans themselves. As the court noted, the loans that Colin claimed to have been made were from his "boyhood friend," Griscom. The court noted that Colin and Griscom had "engaged in various transactions, none of which [was] particularly well-explained by Colin during trial nor disclosed to Lea." The court's obvious concern about the veracity of Colin's testimony was highlighted further by the court's findings that (1) Colin had "intended to wrongfully pass on an inflated claim to Lea without her disclosure or consent," and (2) "Colin's activities with regard to the Griscom note and judgment were collusive with Griscom." We will not disturb the trial court's finding concerning Colin's credibility. (Niko, supra, 144 Cal.App.4th at pp. 364-365; In re Marriage of Meegan, supra, 11 Cal.App.4th at pp. 162-163.)
Lastly, although not addressed in Colin's opening brief, Colin's attorney in the supplemental opening brief asserts a cursory challenge to the trial court's finding that Colin breached his fiduciary duty to Lea, thereby entitling her to attorney fees incurred in defending against the Griscom claim. Colin's counsel argues in the introduction that it was an "improper finding . . . based solely on the court misconstruing a . . . business venture." Colin's counsel later argues in his brief that the court's breach of fiduciary duty conclusion "was predicated on several other findings, at least two of which are unsupported, or even refuted, by the evidence before that court." He goes on to reiterate that one of those subsidiary findings—that any claim by Griscom was barred by the statute of limitations at the time Colin signed the promissory note—was erroneous and unsupported by the evidence. Colin's counsel fails to cite to the record in support of his argument as required (Cal. Rules of Court, rule 8.204(a)(1)(C)), and we may therefore disregard his unsupported contentions. (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239 (City of Lincoln).) Additionally, he presents no legal authority in support of his contention that the court erred in finding that Colin breached his fiduciary duty, and we therefore deem it abandoned. (Abargil, supra, 106 Cal.App.4th at pp. 1300-1301.) In any event, because, as we have discussed, ante, the trial court properly concluded from the record that the Griscom obligation was time-barred when Colin executed the promissory note, and because there was a lack of clarity in Colin's evidence concerning the obligation which led the court to conclude that Colin had "intended to pass on an inflated claim to Lea without disclosure or consent," there were substantial grounds supporting the court's breach of fiduciary duty finding.
The trial court did not err in (1) concluding that Colin was negligent and breached his fiduciary duty in connection with the Griscom obligation, and (2) ruling that Lea should not have any responsibility for the Griscom judgment.
I. Hebble Obligation
1. Evidentiary Background
In his verified schedule of assets and debts dated March 4, 2010, Colin disclosed a debt for $100,000 identified as the "Richard Hebble note." When he was shown the schedule, Colin testified on cross-examination: "I signed various notes. I don't know if there was one for $100,000. I believe there was one for $100,000, but they were cumulative." In his verified schedule of assets and debts dated January 17, 2013, Colin listed the note obligation to Hebble as $107,000. Colin testified later in the trial that he owed Richard Hebble approximately $200,000. Colin testified that Hebble loaned him money on a few occasions, generally to pay for arrearages in mortgages (for the Davenport Landing, Filbert condo, and John Street properties) and for other living expenses. In response to the court's questioning, Colin testified that he had borrowed the money from Hebble "around 2003." Colin testified that he had also borrowed money from Hebble postseparation.
Colin testified during the fifth day of trial on March 25, 2016, that the Hebble loan was $100,000. He testified on the seventh day of trial, 18 days later, that the obligation was $200,000.
Colin testified that his loan arrangements with Hebble were "mostly oral," but that there were some writings. He testified that he "would have liked to have" produced the writings, but he believed that he had "neglected to put [them] in discovery."
Hebble testified that he had known Colin for more than 50 years, and that he had been a friend of Colin's mother. Hebble testified that he had loaned Colin $50,000 in September 2007. At the time, Colin signed a handwritten confirmation of this loan. In June 2008, Hebble loaned Colin an additional $50,000 to assist him with paying his mortgages. Hebble talked to Colin frequently in the succeeding eight or nine years about the loans, and Colin "always agreed to pay [Hebble] back when he ha[d] money again." Colin gave Hebble a place to live over the previous six years at $500 per month, which Hebble credited against the loans.
2. Statement of Decision
The trial court held that Colin had failed to disclose to Lea at any time prior to their separation his transactions with Hebble. It found further that Colin had "not testif[ied] cogently at trial as to why [Lea] should share any obligation he owe[d] to Hebble." The trial court concluded that, assuming Hebble had lent money to Colin, any claim was subject to a statute of limitations defense. The court, reasoning that "[t]here [was] insufficient evidence to support the notion that the community [was] indebted to Richard Hebble or that any debt [was] still enforceable," ordered that any debt to Hebble would be confirmed as Colin's separate obligation.
3. Colin's Claim of Error
Colin challenges the court's decision confirming the monies owed to Hebble as Colin's separate obligation. He argues that the fact that Hebble testified that he was receiving lodging from Colin and that $500 per month as rent was being applied to the loan "indicate[d] the loan was then current," thereby negating the court's conclusion that a claim on the loan was time-barred. Colin asserts that there was substantial evidence that the Hebble debt "was a legitimate obligation and [there was] no substantial evidence in contravention [sic] beyond circumstantial speculation [by] the trial court." We find no merit to Colin's position.
Colin has cited no legal authority in support of his position that the court erred in finding that the Hebble obligation appeared to be time-barred, and we deem the argument abandoned. (Abargil, supra, 106 Cal.App.4th at pp. 1300-1301.) His argument is also a perfunctory one that is little more than a conclusory assertion, without analysis, that the trial court erroneously found the obligation to have been time-barred. We therefore deem this undeveloped argument abandoned on this basis as well. (Nisei Farmers, supra, 30 Cal.App.5th at p. 1018.)
Additionally, Colin's argument that Hebble's claim was not time-barred because Colin was effectively making payments through rent credits to Hebble is not persuasive. There was no evidence—and Hebble provided no such testimony—that Hebble agreed to forgo Colin's timely repayment of the loans as long as Hebble received monthly rent credits from Colin. To the contrary, Hebble's testimony that he repeatedly spoke with Colin over the years about the loan and Colin continually assured Hebble he would pay the loan back suggests that there was no such agreement, and that Hebble demanded repayment despite the $500 monthly rent amount Hebble was crediting against the obligation.
Of the $200,000 amount of the obligation claimed by Colin at trial, $100,000 was incurred, according to Hebble's testimony, in 2007 and 2008. On their face, these oral loan obligations were time-barred. (See Code Civ. Proc., § 339, subd. (1).) Assuming the obligations were subject to demand within a reasonable time, Hebble would have been required to have brought suit to collect on the obligations by no later than 2011 or 2012. (See Bass, supra, 205 Cal. at p. 287.) The trial court did not err in concluding that the Hebble obligation—founded on loans made in 2007 and 2008—was time-barred.
Colin testified that this amount was loaned to him by Hebble much earlier, "around 2003."
Colin also argues that the trial court made an erroneous finding of fact in stating that Hebble, when he testified, " 'had no writing signed by Colin indicating a debt.' " Colin argues that the finding was contradicted by a document introduced during Hebble's testimony, namely, "a note signed by Colin." The "note" referred to by Colin was not a formal promissory note. Rather, it was a handwritten document signed by Colin confirming that he had borrowed money from Hebble, in three installments of $30,000, $10,000, and $10,000, between July 16 and September 17, 2007. The document lacked the formality of a promissory note in that it did not include a promise to repay, terms of repayment, or an interest rate. Even were we to credit Colin's argument that the court erroneously stated that Hebble "had no writing signed by Colin indicating a debt," he may not complain about the claimed error at this stage. The same challenged language appeared in both that court's tentative statement of decision filed June 28, 2016, and in the final statement of decision filed September 6, 2016. Colin presented no challenge below to the language in either such document. A party who "fails to bring to the attention of the trial court alleged deficiencies in the court's statement of decision" waives the right to complain of such errors on appeal, thus affording the appellate court the right to make implied findings in favor of the prevailing party. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1132, 1138.)
Furthermore, as was true with respect to the Griscom obligation, the language in the statement of decision suggests that the trial court was skeptical of Colin's claim, and that the court specifically questioned the veracity of Colin and his longtime friend, Hebble. The court stated that Colin had "not testif[ied] cogently at trial as to why [Lea] should share any obligation he owe[d] to Hebble." Colin's verified disclosures of assets and debts of 2010 and 2013 identified the loan amount as $100,000 and $107,000, respectively, half the amount of the indebtedness claimed by Colin at trial. Colin initially testified that the loan amount was $100,000; it was not until 18 days later that he testified in the trial that the amount was $200,000. And Colin neither presented evidence of the nature of any postseparation loans from Hebble that apparently represented a portion of the obligation he sought to be confirmed as a community debt, nor offered evidence or argument addressing why Lea should be held responsible for any such postseparation loans. (See In re Marriage of Warren, supra, 28 Cal.App.3d at p. 784 [party asserting existence of community debt has burden of producing evidence of its existence].) Further, the court was critical of the quality of the evidence presented in support of Colin's claim that it was a community obligation. Indeed, certain language in the statement of decision—i.e., "any obligation," "[a]ssuming he gave money to Colin," "any debt," "any indebtedness" (italics added)—suggests that the trial court questioned whether there was any loan at all. We will not disturb the trial court's finding concerning the credibility of Colin or Hebble. (Niko, supra, 144 Cal.App.4th at pp. 364-365.)
The trial court did not err in concluding that any loans from Hebble to Colin should be confirmed as his separate obligation.
J. Claire and Joan Haratani Obligations
1. Evidentiary Background
Lea's sister, Joan Haratani, testified that it had been her "custom and habit and practice to help Colin with money." Joan testified that she was also an investor and "Colin's on-call lawyer" with respect to the business, Seismic.
Joan's funding efforts were the result of "many instances in which [Colin and Lea] were short of cash" and needed money to maintain the Davenport Landing property, for groceries or utilities (when their telephone or power had been shut off), for property taxes, for medical bills for the children, or for other bills. Joan testified that she at times also helped with mortgage payments, testifying that "[t]he home always seemed to be on the border of foreclosure." Joan testified that she had also bought Colin and Lea a car, as had her mother, Claire. As Joan described it in her testimony, there "was just a never-ending contribution to keep the family up and running."
Joan testified that she had also helped with the physical labor in the teardown and construction on the Davenport Landing remodel project. She bulldozed the old house and helped her father with the electrical work. Joan may have helped financially with the teardown, and she helped pay for the remodeling work. And her mother, Claire, paid for the landscaping.
Joan testified that when Colin borrowed money from her, he "always promised ten percent interest." At one time, Colin borrowed $50,000 or more from Joan, promising to pay it back with 10 percent interest. Joan testified that Colin "paid" part of the loan back a year or more later by unexpectedly presenting her with a new Toyota Highlander; he presented it to her in front of the family as if it were a birthday gift. Joan testified that, as a repayment of the loan, the "gift" of the car was $10,000 less than the loan principal, and Colin paid no interest. She also paid for various living expenses during the family trips to Naushon Island on the East Coast. And while Lea was very ill with breast cancer and had three surgeries, Joan periodically stayed at the Davenport Landing property to care for her; Joan also hired and paid for caregivers for Lea during her illness.
In his verified schedule of assets and debts dated March 4, 2010, Colin disclosed that there was a debt of $100,000 identified as "2 loans from Lea's sister and Colin's aunt." Colin testified at trial that this referred to Joan Haratani and Kate Rinsler, and that at the time, he "did not know the status of what those loans would ultimately be about. But [he] consider[ed] they may be loans that [he] was liable for." In his verified schedule of assets and debts dated January 17, 2013, Colin did not list any obligations to Joan or Rinsler. Colin testified that when he signed the second schedule, he "wasn't sure if they were really loans to [him]." Later in the trial on direct examination, Colin testified that he never borrowed money from Joan. He explained that he had given Joan a car because "[s]he had been generous to [Lea and him] over the years." He used funds from the sale of his separate property in Mendocino to buy the car for Joan in 2006 for $47,000.
2. Statement of Decision
The trial court noted that Lea and Colin agreed that they owed money to Claire and Joan Haratani for funds advanced, and they also agreed that this was community debt. The court found, based upon disclosures by Lea, that as of October 2005, Joan and Claire were owed as community obligations the sums of $129,730.63 and $195,101.24, respectively. The court therefore confirmed the community obligations to Lea, subject to an equalization payment from Colin of $162,415.93.
3. Colin's Claim of Error
Colin challenges the court's order that he make an equalizing payment to Lea for the community obligations to Claire and Joan Haratani. Colin contends that the alleged obligations were "fictional loans" and the court's findings were based solely on an attachment to a disclosure statement made by Lea. There was, Colin asserts, no testimony concerning the nature of these claimed loans, including evidence supporting the position that they were community obligations. He argues that the court's ruling was thus not supported by substantial evidence. Additionally, Colin argues that, even assuming their existence, the obligations were time-barred. Lastly, he contends, at least one (if not more) of the alleged obligations—the loan listed by Lea from Claire for $195,101.24, which was stated as having been incurred in July 2010—was a postseparation loan, and thus was not a community debt. We conclude that Colin's position has merit.
There was no evidence presented concerning a loan or loans by Claire Haratani to the community. Lea did not testify to the existence of any loans from her mother, and Lea presented no documentation concerning them. Claire Haratani did not testify at the trial. Joan testified that her mother had paid for the landscaping for the remodel of the Davenport Landing property, and that Claire had bought Colin and Lea a car. Both events occurred in the 1990's. There was no testimony of the amounts advanced by Claire, or evidence regarding whether these transactions were loans or gifts. Joan did not otherwise testify as to any possible loans by Claire to Colin and Lea.
Similarly, no evidence was presented in the form of testimony by Lea concerning loans made by her sister, Joan. And while Joan, as recited, ante, testified in general that she provided funds to Colin and Joan at various times and for various purposes over the years, she did not testify as to any specific loans she made by referencing dates, amounts (other than the $50,000 loan which was mostly repaid through Colin's "gift" of a car), or the specific purpose of such loans. And Joan submitted no documentary evidence supporting the existence of such loans.
It is apparent that the trial court based its findings solely upon a verified schedule of assets and debts signed by Lea in October 2015. (See Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1355, superseded by statute on another ground as stated in In re Marriage of Swain (2018) 21 Cal.App.5th 830, 840 [as a "general rule . . . hearsay declarations are inadmissible at contested marital dissolution trials"].) In the schedule, Lea identified as unsecured loans four loans from Joan totaling $129,730.63, noting that they were incurred in October 2008, July 2009, September 2009, and November 2009. Lea also identified in the schedule one unsecured loan of $195,101.24 from Claire, which Lea stated had been incurred in July 2010, over six months after the parties had separated. Neither Lea's schedule nor the information contained in it was presented at trial by Lea as part of her case. The schedule was identified briefly at the end of the trial during cross-examination of Lea by Colin's counsel. Lea confirmed that she recognized the schedule and that she signed the verification. Lea did not refer to or in any way discuss the contents of the schedule in her testimony as it concerned any loans from Claire or Joan. The schedule of assets and debts was admitted into evidence at the end of the trial.
Contrary to the court's statement of decision that Colin did not contradict the existence of the loans in his testimony, Colin in fact testified that he had never borrowed money from Joan. The court's statement of decision nonetheless found a community obligation relative to Claire and Joan Haratani as creditors that was nearly quadruple the amount claimed at trial by Lea. In her trial brief, Lea's counsel stated that there was a community debt of $100,000 owed to Claire and Joan that the parties had agreed upon "(per disclosures)." Furthermore, at trial, Lea's counsel during closing argument did not seek confirmation of a community obligation totaling $324,831.87, as ordered by the court in the statement of decision. Rather, Lea's counsel urged that the community debt owed to Claire and Joan be determined to be $82,000.
Lea's counsel stated in her trial brief that Joan had attempted to get a promissory note from both parties, but only Lea would sign it. There was no evidence presented at trial to this effect.
We conclude from our review of the entire record that there was no substantial evidence to support the court's finding that there were community obligations of $129,730.63 and $195,101.24 owing to Joan and Claire, respectively. Especially since (1) there was no evidence presented by either of the creditors of the loans in the amounts determined by the court, (2) no evidence was presented on behalf of Lea on the subject, and (3) the figures determined by the court were nearly four times greater than the aggregate amount Lea claimed at trial to be the community obligation, the court's ruling is not supported by substantial evidence. (See Foreman & Clark, supra, 3 Cal.3d at p. 881.)
Further, even were the unsecured loans listed in Lea's 2015 disclosure (for which no supporting evidence was presented) credited, each appears to have been time-barred. Since each purported loan appears to have been based upon an oral agreement, action on each loan was governed by a two-year statute of limitations. (See Code Civ. Proc., § 339, subd. (1).) Since each loan was incurred more than four years before trial—between October 2008 and July 2010—they were subject to demand within a reasonable time; the creditors would have been required to bring suit to collect on the last-incurred obligation by no later than July 2014. (See Bass, supra, 205 Cal. at p. 287.)
The trial court therefore erred in concluding that there were community debts in favor of Joan and Claire in the amounts of $129,730.63 and $195,101.24, respectively, and in confirming these community obligations to Lea with an equalizing payment owed by Colin of $162,415.93.
K. John Street Litigation Proceeds
1. Evidentiary Background
Colin testified that he bought the John Street property before marriage in the mid-1980's, originally sharing ownership with others as tenants in common. He later bought out the interests of the co-owners in the 1980's. Lea testified that prior to 1992, she and Colin began living together in a back unit on the John Street property. She understood at the time that Colin owned the property. Lea was unhappy living there, and they ultimately located their future home in Davenport Landing.
According to his testimony, Colin later transferred the property to Peter and Janice Schuyler in 1997 in an installment sale in which Colin was given no cash but received a note for $300,000. Peter and Janice Schuyler transferred the property to Barlow and Lisa Schuyler (the Schuylers) in 2000, with the note in favor of Colin going with the transfer.
On December 20, 2004, the Schuylers transferred the John Street property by recorded grant deed signed to Lea, a married woman as separate property. At the same time, Colin, as husband of the grantee, transferred the property by an interspousal transfer grant deed to Lea, a married woman, as separate property. Also at the same time, Lea signed a deed of trust as borrower encumbering the John Street property that secured a note she signed in the amount of $371,250. Lea testified that she did not recall the three transactions. Lastly, Lea, a married woman, transferred, as separate property, the John Street property by grant deed to Colin and her, husband and wife, as community property with a right of survivorship; this transaction reflected that after the deed of trust was recorded, the property was placed into both of their names.
Lea testified that in 2005, she and Colin decided to sell the John Street property because they could not afford the mortgage. There was a serious proposal of more than one million dollars from one set of buyers that resulted from multiple offers and counteroffers. According to Lea, the transaction did not close because Colin insulted the broker during the negotiations, and Colin ultimately refused to sell the property. Colin testified that the transaction was unsuccessful because the buyers were unable to obtain clearance for a subdivision of the property. Lea testified there was a second offer of $1 million without contingencies from another buyer in November 2005, but Colin rejected the offer. Colin testified he did not recall the second offer.
The property was ultimately lost through foreclosure with Lea's name on the loan. The foreclosure occurred on September 22, 2008. At the time, Colin believed the property was worth approximately $1 million. Colin testified that prior to the foreclosure, he was seeking a loan modification to address the couple's problems in paying their mortgages. Lea testified that before the foreclosure occurred, she received a number of calls from people interested in purchasing the property; none of the offers was accepted because Colin, who was on the East Coast, was working on a resolution to avoid foreclosure, and he did not think that the foreclosure would occur.
Lea testified that Colin hired an attorney to file a lawsuit regarding the foreclosure. Colin was not a party to the lawsuit. Lea testified that during the litigation, she met with the attorney, Brad Brereton; she told him that Colin felt there was a very strong case and it should be pursued further. Brereton disagreed, and said they were lucky to have received the settlement offer that was presented, and his opinion was that the case was not worth pursuing further. The lawsuit was ultimately settled for $120,000.
After settling the lawsuit, on November 16, 2009, Lea deposited $102,106.69 into Lea's and Colin's joint Bank of America account. Lea testified that there were charges made at the time to the joint account that included payments for a family vacation to Big Sur, Hearst Castle, and Paso Robles; for medical bills; to maintain Lea's real estate license; to Brereton for $17,000; to Colin's divorce attorney for $5,000; and to furnish Lea's new home because all of her household items were located at the Davenport Landing property.
Joan testified that after Lea and Colin had separated, Joan bought a house in Santa Cruz because Colin had "kicked Lea and [her daughter] out of Davenport Landing. They had no place to live." Joan rented the Santa Cruz property to Lea. Lea needed to buy furniture, including beds, for her new residence in Santa Cruz.
Lea testified that on November 25, 2009, she deposited $50,000 of the settlement proceeds into her separate account. She made disbursements from that separate account that included $10,000 for loan payments on the Davenport Landing property because the mortgage was in arrears; a mortgage payment for the Filbert condo; contractor expenses for repairs to the Filbert condo due to damages caused by a tenant approved by Colin; $10,000 for their son's tuition; money for their daughter's after-school care; payments for doctor bills related to Lea's cancer treatment; family pet expenses; other medical expenses; food; Christmas presents; repayment to Joan Haratani for monies she had advanced (including money for private school tuition for Colin's and Lea's son); furniture for their daughter; and family vacation expenses.
Colin testified that he and Lea had agreed in writing not to spend the settlement proceeds without the other's approval. The funds "were taken out of the account rather quickly" by Lea without his knowledge.
2. Statement of Decision
The trial court noted that Colin had asserted a reimbursement claim for the full amount of the settlement proceeds from Lea's lawsuit against the lender that had foreclosed on the John Street property. The court presented a detailed history of the property through the time it was lost through foreclosure in 2008. The trial court observed that Colin had owned the John Street property prior to marriage, "but it [had] changed hands so often and [had] so many interlocking owners that it is impossible to calculate the financial value of [Colin's] ownership interest at the time of marriage, and there was no evidence given of the property's fair market value at that time." The court observed that at one time, Lea, as of December 2004, had owned the property as her sole and separate property, and that she was sole obligor on the financing ($371,250) arranged by Colin that had paid off his prior loan. The trial court found that "[t]he loan proceeds were taken by Colin and Lea was not told what they were used for." After the refinancing, Lea deeded the John Street property to Colin and Lea as community property with a right of survivorship, but Lea remained the sole obligor on the loan.
The court noted that the John Street property was ultimately lost through foreclosure in September 2008. Lea later filed suit against the lender on her behalf only, as sole obligor, and the case was settled. The court found that Colin had consented to Lea's settlement of the case, and that the settlement was appropriate. It found that Lea had deposited the settlement payment to her of (approximately) $102,000 into a joint bank account, and she had later wired $50,000 to her separate bank account. The court concluded that the settlement funds Lea had caused to be disbursed from the joint account and her separate account "were almost entirely for community expenses." The court therefore found that Colin had no right to reimbursement of the settlement proceeds. Because of this conclusion, the trial court found it unnecessary to address either Colin's reimbursement obligations or Lea's assertion that Colin's negligence in forgoing a $1 million purchase offer resulted in the property being lost through foreclosure.
3. Colin's Claim of Error
Colin challenges the trial court's decision concerning the John Street property. Although Colin's argument is generalized and undeveloped, it appears that he contends that the court erred in (1) ruling that the settlement of the litigation was appropriate without it having an understanding of the value of the John Street property; (2) determining that Colin was not entitled to reimbursement of any of the settlement proceeds based upon the court's erroneous assumption that Colin had knowledge of the use of the proceeds because they had been deposited and disbursed from a joint account; and (3) denying Colin's claim that he be reimbursed $300,000 for his separate property contribution stemming back to his original ownership of the John Street property. We reject Colin's claims of error.
Colin argues, without explanation or citation of authority, that "[t]he trial court could not appropriately rule on the adequacy of the settlement of Lea's lawsuit without knowing the property's true value." His argument is perfunctory and is little more than a conclusory assertion, without analysis, that the trial court erroneously determined the settlement was reasonable without first determining the value of the property. Appellate courts have no obligation to "develop the appellants' arguments for them." (Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1 (Dills).) We deem this undeveloped argument abandoned. (Nisei Farmers, supra, 30 Cal.App.5th at p. 1018.) Further, Colin cites no legal authority in support of his position that the court erred; the argument is thus abandoned on this basis as well. (Abargil, supra, 106 Cal.App.4th at pp. 1300-1301.) Moreover, given that Colin has not developed the argument, it is unknown how the reasonableness of the settlement or the court's determination on that issue may have been relevant to the court's ultimate findings concerning the John Street property. For example, Colin's counsel, in closing argument concerning Lea's rationale for settling the case, argued that, notwithstanding Lea's understanding from her litigation attorney that the prospects were poor, there was "a very good chance of winning this litigation." But Colin's counsel did not specify to the trial court how (or through what reasoning) Colin was entitled to compensation for Lea's supposedly unreasonable settlement decision.
Next, Colin argues that the trial court erred by "cit[ing] the joint bank account as proof of Colin's knowledge of [Lea's] use of the subject funds . . . [because] the trial court inconsistently and without justification failed to apply this same logic to Colin's supposedly undisclosed use of proceeds from other transactions." Again, Colin's argument is abandoned because it is perfunctory (Nisei Farmers, supra, 30 Cal.App.5th at p. 1018), and it is presented without citation to supporting legal authority (Abargil, supra, 106 Cal.App.4th at pp. 1300-1301). Further, Colin's argument implies that the presumed absence of his knowledge as to the disposition of the settlement proceeds—as opposed to the purposes for which the proceeds were in fact used—leads to the inescapable conclusion that the court erred in denying Colin reimbursement of any of the proceeds from the settlement. The court found that "[Lea's] expenditure of the proceeds of the litigation were almost entirely for community expenses." Colin does not challenge that conclusion, one which was supported by substantial evidence and which justified the court's denial of Colin's reimbursement request.
Lastly, in the supplemental opening brief, Colin's new counsel contends that Colin should have been reimbursed $300,000 by the community for his original separate property interest in the property. In one short paragraph stating the basis for this contention, Colin's counsel recites the early history of the ownership of the property, namely, that (1) Colin acquired a one-third interest in 1985; (2) he acquired the entirety of the property in 1988; (3) "[i]n 1997[, Colin] sold the property (still his SP in an installment sale, in return for a $300,000 note"; (4) there were "[s]everal subsequent purchases [in which the buyers] successively assumed liability for the note"; and (5) in 2004, Colin and Lea, "as community property[,] received the property in exchange for cancellation of the note." Colin's counsel argues that in 2004, the John Street property "was thus debt-free community property, obtained through [Colin's] $300,000 separate property contribution."
This argument, save for one citation to the clerk's transcript to the 1985 deed, is not supported by citations to the appellate record, including references to where in the record any testimony concerning the $300,000 promissory note appears. A party to an appeal, under rule 8.204(a)(1)(C) of the California Rules of Court, must provide citations to the appellate record in support of points made in the brief. The significance of this citation requirement is magnified where, as here, the matter being reviewed is a protracted trial with a lengthy and complex record. (See Western Aggregates, supra, 101 Cal.App.4th at p. 290.) The court may disregard any unsupported contentions. (City of Lincoln, supra, 102 Cal.App.4th at p. 1239.)
Even were we to consider merits of the contention, we would find no error. The only evidentiary source of a $300,000 note was Colin's testimony, in which he stated that when he deeded the property to Peter and Janice Schuyler in 1997, he received no cash but was provided a note for $300,000. The documentary evidence presented by Colin did not confirm this testimony. Rather, the only document was the grant deed introduced by Colin, which did not refer to a $300,000 note, but, as the trial court observed, contained the handwritten notation "value of liens exceeds value of property." (Capitalization omitted.) Colin testified, without explanation or confirmation from other evidence, that the $300,000 note then "followed the property from Peter and Janice [Schuyler] to Barlow and Lisa Schuyler," and "it came with" the property when the Barlows deeded it to Lea in December 2004. The $300,000 note was not introduced as an exhibit at trial by Colin. And although Colin's ambiguous testimony that the $300,000 note "followed the property" or "came with" various transfers might suggest that the note was secured by a deed of trust, no such deed of trust was referred to in Colin's testimony or introduced as an exhibit.
At trial, Colin's attorney during closing argument did not mention a deed of trust. But she referred to the note as "an unrecorded $300,000 note to Colin."
In its discussion of the John Street property in the statement of decision, the trial court did not mention the existence of a $300,000 note that Colin claimed to have received when he transferred the property in 1997 to Peter and Janice Schuyler. Instead, the court noted that the 1997 deed contained the notation "value of liens exceeds value of property." (Capitalization omitted.) Further, the court did not mention the $300,000 note to which Colin testified in connection with the December 2004 transfer of the property by Barlow and Lisa Schuyler to Lea. These omissions, coupled with the court's conclusion that the property "changed hands so often and [had] so many interlocking owners that it is impossible to calculate the financial value of [Colin's] ownership interest at the time of marriage" suggest that the court implicitly found that Colin had failed to prove the existence of the $300,000 loan. We will not disturb that implied credibility determination (Niko, supra, 144 Cal.App.4th at pp. 364-365), and we conclude there was no error.
Moreover, to the extent Colin's argument is that the court erred by omitting the claimed $300,000 note from its reasoning and decision concerning the parties' rights and duties relative to the John Street property, the argument fails. Colin could have, but did not, challenge the court's omission of the claimed $300,000 note by filing objections to either the court's tentative statement of decision or final statement of decision filed September 6, 2016. He therefore waived the right to complain of the errors on appeal, thus allowing this court to make implied findings in favor of the prevailing party. (In re Marriage of Arceneaux, supra, 51 Cal.3d at pp. 1132, 1138.)
The court's determination that Lea's settlement of the litigation arising out of the foreclosure of the John Street property was appropriate was not error. Further, the trial court did not err in concluding that Colin was not entitled to any reimbursement in connection with (1) the proceeds received by Lea from that settlement, or (2) a separate property contribution he had initially made to acquire the property.
L. Other Claims
We observe that Colin and his counsel assert other claims of error in the opening brief and supplemental opening brief, respectively. We conclude that none of the other claims has merit.
Colin argues in his opening brief that the court erred by refusing his request at the commencement of trial to enforce a notice directed to Lea to appear and produce documents that included check registers maintained during the marriage. Colin, through counsel, expressly abandoned this argument in his supplemental opening brief.
Second, Colin, in a two-sentence argument, contends the trial court erred in "address[ing] family and child support" in the statement of decision. He contends that this was "inconsistent with the parties' equal sharing of the children and to not seek [sic] child support." We have no obligation to "develop the appellant[']s arguments for [him]." (Dills, supra, 28 Cal.App.4th at p. 890, fn. 1.) We deem his wholly undeveloped argument abandoned. (Nisei Farmers, supra, 30 Cal.App.5th at p. 1018.)
Third, Colin's counsel argues in the supplemental opening brief that the trial court erred by failing to credit Colin for separate property monetary contributions he made to the community during the marriage. Counsel makes this argument initially in conjunction with arguing that the court erred in finding that Colin had taken community funds for his separate property purposes (e.g., loan proceeds from the refinancing of the Davenport Landing property). But he argues that Colin should have received credit for large amounts of separate property that were used to fund specific community endeavors. Counsel argues that in 2006, Colin sold his property in Mendocino that he had purchased before marriage, and he used the proceeds ($805,000) for community purposes, including funding Seismic and paying for other community obligations. He argues further that Colin should have been credited in an unspecified amount for the separate funds he contributed to the community business, Seismic. And Colin's counsel contends that, should the trial court's characterization of the Davenport Landing property as Lea's separate property be affirmed, Colin should receive a credit in an unspecified amount for his separate property contributions that were made to benefit the Davenport Landing property.
Colin did not present testimony or documentary evidence at trial tracing separate property contributions to the community for which he sought reimbursement. His trial counsel made no specific request, either in Colin's trial brief or closing argument, for reimbursement for Colin's separate property contributions relative to the proceeds from the Mendocino property, for Seismic, or for the Davenport Landing property (aside from reimbursement for the 1996 remodel project). As the claimant, Colin had the burden of proving separate contributions to the community in support of a reimbursement claim. (In re Marriage of Frick (1986) 181 Cal.App.3d 997, 1011.) He cannot assert a claim of error here when he failed to make an evidentiary showing or a claim for reimbursement of separate property contributions in the trial court.
Fourth, Colin's counsel argues in the supplemental opening brief that the trial court erred because it did not make a finding as to the precise date of the parties' separation. The trial court concluded that the parties "separated in the fall of 2009," and it noted that there was some discrepancy between the parties as to the precise date. But the court held it was unnecessary to make a finding as to the precise separation date because "no determination that the Court needs to make herein rests upon a determination of the exact date." Colin's counsel argues that there were several issues that turned on the precise date of separation, and therefore remand was required for such a finding. In making this argument, he cites to the dates that several of the obligations to Joan Haratani were incurred, and the dates expenses were incurred that were paid by Lea from the settlement proceeds received from the foreclosure litigation involving the John Street property. Since we have addressed appellate claims related to these matters, ante, without regard to the date the parties separated, and we have concluded for other reasons that the court erred in finding that Colin was required to make an equalizing payment for community obligations to Claire and Joan Haratani, the trial court's failure to make a finding as to the specific date of the parties' separation did not prejudice either party.
M. Conclusion
From our review of the record, it is readily apparent that the trial court was faced with extensive challenges. Counsel in their trial briefs and in their closing arguments did not present a clear or supported summation of the relief they sought on behalf of their respective clients. There were several parcels of real property, various loans to and from the parties, and numerous, complex real estate and business transactions to consider. Notwithstanding the chief issues concerned the characterization of the property and obligations involved—tasks requiring a detailed analysis and a monetary tracing of the underlying transactions—there was a general absence of documentary or other evidence presented by the parties to explain the relevant transactions.
It is clear from the testimony that, as between the two parties, Colin was the driving force behind nearly all of the transactions. The trial court concluded that Colin was "[t]he director of all of the activity . . . , manag[ing] all of the real estate transactions." He therefore should have been in a position at trial to explain them to the court and to present relevant documents supporting his claims. He failed nearly uniformly to make this presentation. As the trial court observed in the introductory portion of its statement of decision, "[a]s a starting point, [it felt] compelled to express [its] frustration with the evidence provided by the parties. This case involves numerous real estate transactions. The job of the court is to characterize the property and value the parties' interests. . . . [B]y the time of trial[, Colin] managed to have lost track of virtually all of the paperwork [for the parties' real estate transactions,] such as closing statements and bank statements that might have been used to chronicle the flows of money through the transactions he supervised. There is hardly a single transaction among the dozens they engaged in before and during their marriage that is fully documented by the evidence provided. In most instances, documentary gaps were not adequately filled in with credible trial testimony."
Colin, both at trial and on appeal, attempted to excuse his inability to explain the transactions with testimony and documents by claiming that Lea had, postseparation, taken the relevant documents from the Davenport Landing property, and he therefore had no access to them. The court heard argument on this claim at the outset of trial in connection with an oral motion by Colin to enforce a notice directed to Lea to appear and to produce financial documents; it denied the motion, expressly accepting Lea's response that any and all relevant documents had been provided in pretrial discovery to Colin's former counsel. Colin attempts to deflect his failure at trial to marshal and present evidence by arguing repeatedly in his appellate briefs that the court erred by failing to (1) request that the parties offer further evidence on particular transactions, and/or (2) appoint independent experts to offer opinions on issues such as property valuation. In doing so, Colin confuses the respective roles of the parties and the court. It is the duty of the parties at trial to present evidence in support of their claims and defenses; it is not the trial court's obligation to critique that presentation by requesting that the parties submit additional, more satisfactory evidence, or to appoint the court's own experts to fill evidentiary gaps in the parties' showing.
As noted, ante, in his opening brief, Colin challenged this ruling, but later expressly abandoned the appellate claim.
It is from this frame of reference that we have considered this appeal. In doing so, we understand the trial court's difficult task in formulating a decision following an inadequate presentation by the parties. Based upon our careful review of the record, we conclude as follows:
1. The court erred in taking judicial notice of the County online records in connection with its determination of Colin's claim of reimbursement for the remodeling of the Davenport Landing property occurring in or about 1996. That determination—contained in the statement of decision (p. 10, commencing with the third paragraph ["After purchase . . ."] to p. 13, concluding with the end of the first partial paragraph [" . . . to $244,500"])—is therefore erroneous. The matter is reversed and remanded for retrial of Colin's claim of reimbursement for the remodeling of the Davenport Landing property occurring in or about 1996.
2. The court erred in ordering that Colin reimburse Lea $109,031, representing one-half of the net loan proceeds received by the parties in connection with the February 1999 loan secured by deed of trust encumbering the Davenport Landing property. The court's conclusions on this issue—contained in the statement of decision (p. 13, first full paragraph ["In February 1999 . . ."])—are therefore erroneous.
3. The court erred in ordering that Colin reimburse Lea $197,000, representing all of the net loan proceeds received by the parties in connection with the August 2002 loan secured by deed of trust encumbering the Davenport Landing property. The court's conclusions on this issue—contained in the statement of decision (p. 13, second full paragraph, fifth sentence ["Again, it appears that Colin took all of the proceeds of the loan after the refinance . . . Colin's obligation."]; and on p. 14, first partial paragraph [crediting Lea with "the funds taken [by Colin] from the proceeds ($197,000)"])—are therefore erroneous.
4. The court erred in ordering that Colin reimburse Lea $225,000, representing all of the loan proceeds received by the parties in connection with the May 2005 loan secured by deed of trust encumbering the Filbert condo property. The court's conclusions on this issue—contained in the statement of decision (p. 15, first partial paragraph ["Colin wanted the proceeds for investing and arranged the loan through a friend."]; p. 15, first full paragraph, first sentence ["The Court finds . . . became solely responsible."]; and p. 15, first full paragraph, sixth sentence [the portion reading " . . . , and Colin owes a reimbursement of $135,000."])—are therefore erroneous. Colin shall be entitled to a $90,000 credit for his contribution to the original purchase price of the Filbert condo property.
5. The court erred in concluding that Colin owed Lea an equalization payment of $162,415.93, representing one half of claimed community loans from Claire Haratani ($195,101.24) and from Joan Haratani ($129,730.63). The court's conclusions on this issue—contained in the statement of decision (p. 23, second full paragraph, first sentence ["Both parties . . ."] to p. 24, first partial paragraph, first partial sentence through first full sentence ["from Colin, Joan . . . Colin in the amount of $162,415.93."])—are therefore erroneous.
We conclude that a limited retrial of certain issues is compelled by such error. (See Gray v. Cotton (1913) 166 Cal. 130, 139 [partial reversal and limited retrial appropriate "where the error found to have been committed has affected the determination of but one or more of a greater number of distinct and severable issues or causes of action"].)
Upon remand, the court shall determine, based upon the evidence presented, the amount of Colin's separate property contribution to the 1996 remodel project for the Davenport Landing property, and, based upon that determination, shall assign the amount Lea is obligated to reimburse Colin. The court shall then determine Colin's total right of reimbursement in connection with the Davenport Landing property by including (a) a credit to Colin for his one-half equity interest as of February 1994, as previously found by the trial court ($119,500); (b) a credit to Colin for his separate property contribution to the 1996 remodel project as determined at retrial; (c) a credit to Colin for his community property equity interest as of August 2002, as previously found by the trial court ($260,000); (d) a debit for the payoff of Colin's share of the community debt in August 2002 as previously found by the trial court (<$291,500>); (e) a debit for the County personal property tax lien as previously found by the trial court (<$212.15>); and (f) a debit for the True North LLC abstract of judgment as previously found by the trial court (<$9,175.67>). The trial court shall then enter a new and different judgment incorporating the trial court's prior statement of decision as to all findings unaffected by this opinion, correcting the reimbursement amount owed to Colin relative to the Davenport Landing property as determined after retrial, and correcting the reimbursement amount owed to Colin to reflect his entitlement to a $90,000 credit for his contribution to the original purchase price of the Filbert condo property.
III. DISPOSITION
The December 21, 2016 judgment is reversed for the reasons stated in this opinion. The matter is remanded for a limited retrial on the issue of Colin's claim of reimbursement for his separate property contribution to the 1996 remodel project of the Davenport Landing property. Upon determination of that issue and recalculation of the total reimbursement amount relative to the Davenport Landing property as described in the conclusion above, the court shall enter a new and different judgment incorporating that determination and the findings and conclusions reached in the prior trial as contained in the September 6, 2016 statement of decision, save for the findings and conclusions found in this appeal to have been erroneous. Each party shall bear his or her respective costs on appeal.
/s/_________
BAMATTRE-MANOUKIAN, .J. WE CONCUR: /s/_________
GREENWOOD, P.J. /s/_________
GROVER, J.