Hofmann v. Hofmann

Full title: SHARON HOFMANN, Individually and as Trustee, etc., et al., Plaintiffs…

Court: California Court of Appeals, Fifth District

Date published: Jul 15, 2021

No. F079977 (Cal. Ct. App. Jul. 15, 2021)

Opinion

F079977

07-15-2021

SHARON HOFMANN, Individually and as Trustee, etc., et al., Plaintiffs, Cross-defendants and Respondents, v. MICHAEL HOFMANN, Individually and as Trustee, etc., Defendant, Cross-complainant, and Appellant JOHN P. BRICHETTO, Individually and as Trustee, etc., et al., Cross-defendants, Cross-complainants and Respondents.

Crabtree Schmidt and Robert W. Crabtree for Defendant, Cross-complainant, and Appellant. Downey Brand LLP and Meghan M. Baker for Plaintiffs, Cross-defendants and Respondents. Rodarakis & Sousa, Eric J. Sousa and Brandy L. Barnes for Cross-defendants, Cross-complainants and Respondents.

DE SANTOS, J.

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Stanislaus County No. 2200623. John D. Freeland, Judge.

Crabtree Schmidt and Robert W. Crabtree for Defendant, Cross-complainant, and Appellant.

Downey Brand LLP and Meghan M. Baker for Plaintiffs, Cross-defendants and Respondents.

Rodarakis & Sousa, Eric J. Sousa and Brandy L. Barnes for Cross-defendants, Cross-complainants and Respondents.

OPINION

DE SANTOS, J.

In 1994, Michael Hofmann approved a real estate transaction that resulted in his mother, Lois Hofmann, receiving a 50 percent individual interest in property consisting of a residence and a little over 41 acres of farmland. When added to the 25 percent interest Lois already held in the property, Lois's interest increased to 75 percent, with the other 25 percent interest held in a trust established by Lois's deceased husband, Erich Hofmann (the Erich Hofmann Testamentary Trust or EH Trust), whose beneficiaries are Michael and his siblings, Sharon Hofmann and Gary Hofmann. Lois transferred her interest in the property into her trust (the Hofmann Revocable Trust or LH Trust), which she amended in 2013 to forgive a debt Michael owed her; she left the remaining assets to Sharon and Gary.

In 2013, Lois obtained approval for a lot line adjustment that separated the property into two parcels-the residence and the farmland. The following year, she, Sharon and Gary entered into agreements with a local farmer, John P. Brichetto, and his family (the Brichettos)¹ to sell their interests in the farmland portion of the property. The adjustment was not perfected, however, because Michael refused to sign the conforming deeds as trustee of the EH Trust. Although the EH Trust's terms required the estate to be divided in equal shares between the three children on Lois's death, Michael refused to distribute the estate after she passed away in 2015.

1 The Brichettos refer collectively to respondents John P. Brichetto and Jacqueline J. Brichetto, each individually and as Trustees of the John and Jacqueline Brichetto 2008 Revocable Trust, Joseph P. Brichetto, John M. Brichetto, and Lee Ana L. Brichetto.

Sharon and Gary, as beneficiaries of the EH Trust, filed a petition to determine the ownership interests in the property and require Michael, as trustee of the EH Trust, to distribute the EH Trust's assets. Michael cross-complained against Sharon and Gary, and the Brichettos, ² which led the Brichettos to file a cross-complaint to partition the property against Michael, Sharon and Gary.³ Throughout the case, Michael claimed the EH Trust owned a 50 percent interest in the property.

2 Michael sued Sharon and Gary in both in their individual capacities and as trustees of the LH Trust. While Michael alleged Gary became the trustee of the LH Trust from November 2013 to July 2015, when he was replaced by Sharon, by the time of trial, Gary appeared only in his individual capacity.

3 The Brichettos sued Michael both in his individual capacity and as trustee of the EH Trust, Sharon both in her individual capacity and as trustee of the LH Trust, and Gary in his individual capacity.

After a court trial, the trial court determined the Brichettos owned a 75 percent interest in the farmland portion of the property, with the remaining 25 percent interest held by the siblings, while the siblings owned the residence portion of the property. The trial court issued an interlocutory judgment which ordered Michael to distribute the assets of the EH Trust and sign the documents necessary to perfect the lot line adjustment, and ordered the property partitioned by sale. Thereafter, Sharon and Gary, and the Brichettos (collectively, respondents) filed motions for attorney fees. The trial court granted the motions in part and apportioned approximately 50 percent of respondents' attorney fees to Michael.

On appeal from the interlocutory judgment, Michael contends the trial court: (1) erred in denying him leave to amend his cross-complaint; (2) finding the statute of limitations barred his claim for breach of fiduciary duty; (3) erroneously treated a verified petition he filed in a prior action as a judicial admission; (4) wrongfully charged him inflated back rent for his occupancy of the residence; (5) improperly assessed credits for improvements he and the Brichettos made to the property; (6) abused its discretion in forcing him to sign the documents necessary to perfect the lot line adjustment; and (7) erred in its apportionment of attorney fees to respondents and in determining the fees were reasonably incurred. While we conclude the trial court abused its discretion in awarding the Brichettos credit for improvements they made to the Farmland that exceeded the increase in the Farmland's fair market value, we find no merit to Michael's other contentions. Consequently, we affirm in part and reverse in part.

FACTUAL AND PROCEDURAL BACKGROUND

The Property

At issue is a 43.07-acre piece of property located at 13330 Valley Home Road, Oakdale (the Property), which is comprised of approximately 41 acres of farmland (the Farmland) and 1.9 acres on which sits a residence (the Residence). The Property consisted of five parcels; all five parcels contained Farmland and three of them also contained portions of the Residence. Parcel five was a 100-foot strip of land running the length of the Property's southwestern border.

Erich and Lois Hofmann were married and had three children: Michael, Gary, and Sharon. When Erich and Lois were both alive, they each owned a one-quarter interest (collectively, 50 percent) in the Property, and Erich's brother, Eugene Hofmann, and Eugene's wife, Phyllis, each owned a one-quarter interest (collectively, 50 percent). As to parcel five only, Erich and Lois owned their interests as joint tenants, as did Eugene and Phyllis.

The Erich Hofmann Trust

Erich died on December 9, 1987, leaving a will that created a testamentary trust (the EH Trust). Lois and Michael served as co-trustees of the EH Trust; Michael became the sole trustee after Lois's death on August 16, 2015. On Erich's death, Lois became a 50 percent owner of parcel five, while the EH Trust held a 25 percent interest in parcels one through four. Per the terms of the EH Trust, Lois received the trust's entire net income during her lifetime, with the remaining estate to be distributed in equal shares to Michael, Sharon, and Gary on Lois's death.

With respect to Eugene and Phyllis's ownership, Eugene came to own a 50 percent interest in parcel five on Phyllis's death in November 1991, while Phyllis's 25 percent interest in parcels one through four was placed in the Phyllis Jean Hofmann Testamentary Trust (the PH Trust). In October 1992, Eugene quitclaimed his entire interest in the Property, including parcel five, to the PH Trust, which became a 50 percent owner of the Property.

The 1994 Transaction

In the spring of 1994, Lois and the trustees and beneficiaries of the EH Trust entered into a transaction with Eugene and the trustees and beneficiaries of the PH Trust for the exchange of real property (the 1994 Transaction). A contract was drafted to memorialize the 1994 Transaction, which Michael approved as both a trustee and beneficiary of the EH Trust. The contract obligated Lois and the EH Trust to transfer a 50 percent interest in property located on E. Lone Tree Road in Oakdale, to Eugene individually, and in exchange, Eugene and the PH Trust were obligated to transfer their 50 percent interest in the Property to Lois individually.

Eugene, individually and as a trustee of the PH Trust, subsequently executed a quitclaim deed transferring all his right, title and interest in the Property to Lois as her sole and separate property, which was recorded in August 1994. Thereafter, Lois owned a three-quarter interest in parcels one through four and the entire interest in parcel five, and the EH Trust held the remaining one-quarter interest in parcels one through four. The parties also executed a grant deed transferring the Lone Tree Road property out of the EH Trust to Eugene's family, which Michael executed as trustee and beneficiary of the EH Trust.

The Lois Hofmann Trust

On September 14, 1994, Lois established the LH Trust as settlor and trustor; the following month she quitclaimed her entire interest in the Property to her trust. Thereafter, the LH Trust owned three-quarters of parcels one through four and all of parcel five, and the EH Trust owned one-quarter of parcels one through four.

Before her death, Lois had restated and amended the LH Trust. The August 2013 trust amendment forgave a $50,000 debt Michael owed, bequeathed $25,000 to Sharon, and left the residue of the trust estate in equal shares to Sharon and Gary. Earlier versions of the LH Trust included Michael as a residual beneficiary.

The Lot Line Adjustment

In 2013, Lois applied to Stanislaus County (County) for a lot line adjustment that would allow for separate ownership of the Farmland and the Residence. The purpose of the lot line adjustment was to increase the Property's value and provide the Residence for Michael, if he were to negotiate that with her. For years, Michael and his mother had discussed the possibility of him purchasing the Residence or the entire Property, but they were unable to reach an agreement.

The County approved the lot line adjustment on November 15, 2013. One parcel, which consisted solely of Farmland, was unaffected by the adjustment. The other four parcels were combined into two: one parcel for the Residence and another for the remaining Farmland. A certificate of lot line adjustment signed by Lois was recorded on May 16, 2014, but the adjustment was not perfected because Michael, as trustee of the EH Trust, refused to sign the conforming deeds.⁴ When attempting to explain at trial the basis for his refusal, Michael testified he was concerned the lot line adjustment could result in more residents in the area, even though the adjustment did not change the number of homes. In addition, he did not “see any reason” for the lot line adjustment, even though he acknowledged it would probably increase the Residence's value.

4 Michael testified he was not aware of the lot line adjustment before his deposition; he claimed he was not asked to sign the lot line adjustment papers or execute a deed in conformity with the adjustment. Sharon, however, testified she was present when Lois's attorney asked Michael in 2013 to sign the paperwork to complete the lot line adjustment, but he refused.

According to David Harris, a licensed land surveyor who assisted Lois with the lot line adjustment, recordation of the certificate completes the lot line adjustment and the absence of conforming deeds does not change the creation of the lots or the validity of the final map. According to Janie Gatzman, a rural agricultural appraiser, the lot line adjustment increases the value of the Residence as a separate saleable property.

The Transactions with the Brichettos

On March 15, 2014, Lois, as trustee of the LH Trust, agreed to sell her 75 percent interest in the Farmland portion of the Property to the Brichettos, with closing to occur within 90 days after Lois's death (the Lois Purchase Agreement).⁵ The Lois Purchase Agreement provided that to sell the Farmland, “the property must be subjected to a parcel split” and required Lois to “sign all necessary documents to process the parcel split in a timely fashion.” The Lois Purchase Agreement required the Brichettos to pay Lois three nonrefundable deposits of $50,000 each, with the balance of the purchase price due at the close of escrow. The Brichettos subsequently made all the payments called for under the Lois Purchase Agreement.

5 Since the transfer of Farmland would not occur until Lois's death, Lois entered into a lease with the Brichettos, which allowed them to take possession of the Farmland and cultivate an orchard on it.

On the same date, Sharon and Gary entered into an agreement to sell the Brichettos their interests in the Farmland, which were held in the EH Trust. Sharon and Gary represented they each were entitled to a one-third interest in an undivided one-quarter interest in the Farmland held by the EH Trust, and they agreed to sell the Brichettos their collective 16 2/3 percent (2/3 of 25 percent) interest when it was distributed from the EH Trust (the Sharon and Gary Purchase Agreement). Under the terms of the Sharon and Gary Purchase Agreement, the Brichettos were required to pay Sharon and Gary an initial $10,000 deposit and two subsequent $5,000 deposits, with the balance of the purchase price due on close of escrow. The Brichettos paid all the deposits but had not paid the balance of the purchase price. The Sharon and Gary Purchase Agreement further provided that in order to sell their interest to the Brichettos, “the property must be subjected to a parcel split” and required Sharon and Gary to “sign all necessary documents to process the parcel split in a timely fashion.” Michael acknowledged at trial the lot line adjustment needed to be perfected for the sale to go through as contemplated.

On August 18, 2014, Michael filed an action against Lois seeking information and an accounting regarding EH Trust's assets. In his verified complaint, Michael alleged “[t]he Erich Hofmann Trust owns an undivided twenty-five percent (25%) interest in real property located at 13330 Valley Home Road, Oakdale … consisting of approximately 41 acres …” and the LH Trust “owns an undivided seventy-five percent (75%) interest in the Property.” Michael dismissed this action on March 24, 2015.

Lois's Death and Subsequent Events

Sharon became the named trustee of the LH Trust on July 22, 2015. Lois passed away the following month. In October 2015, to honor Lois's agreement with the Brichettos, Sharon executed a deed as successor trustee of the LH Trust to convey a 75 percent interest in the entire Property to them, even though they purchased a 75 percent interest in the Farmland only. Sharon did this because the Residence had not been separated from the rest of the Property since the lot line adjustment had not been completed and she understood the Brichettos would deed the Residence to Sharon when the legal matters were cleared up. Confirming this understanding, John Brichetto gave Sharon a handwritten note stating he had not negotiated or paid for the Residence and he would reconvey legal title in the Residence once the issues with Michael were resolved. Sharon, as trustee and beneficiary of the LH Trust, and Gary as the beneficiary of the LH Trust, confirmed and ratified the Lois Purchase Agreement.

After Lois's death, the terms of the EH Trust required the estate to be divided into equal shares to Michael, Sharon, and Gary. Michael, as the sole trustee of the EH Trust, refused to do so. He asserted he could not distribute the trust's assets because he was trying to ascertain the actual ownership of the Property. Accordingly, Michael has not signed conforming deeds in connection with the lot line adjustment, has not made any distributions of the EH Trust's corpus, and has not distributed the 25 percent interest in the Property he holds as trustee.

Michael's Occupation of the Residence

Michael moved into the Residence in 1982 and has lived there continuously ever since. In the 1990's, Michael paid rent ranging from $200 to $300 per month, and in 2005, he paid rent of $500 per month. In 2013, Lois raised the rent to $1,000, but Michael refused to pay the increased rate and paid $500 instead. Since Lois passed away in 2015, Michael has not paid rent and has been living in the Residence rent free.

At trial, Michael did not present any evidence of the fair market rental value of the Residence. Michael testified he had not investigated the issue because he did not believe he needed to pay rent to live in the home because he believed John Brichetto owned it. Sharon and Gary presented the expert testimony of Joshua Smith, who owns and manages a full-service residential property management business; as part of his job responsibilities, Smith performs rent valuations and finds tenants. Smith opined that as of August 2015, the rental value of the home alone was $1,300 to $1,400 per month and the rental value of the two barns on the Residence was $500 per month, for a total rent of $1,800 to $1,900 per month; the monthly rental would have increased to between $1,900 and $2,000 in August 2017 and $2,000 to $2,100 in August 2018.

The Brichettos Improve the Farmland

Since purchasing and taking possession of the Farmland, the Brichettos improved the property by planting a walnut orchard. At trial, John Brichetto testified regarding the various activities carried out to prepare the ground for planting, to plant the trees, and to cultivate and care for the orchard, and the costs borne by him in connection with those activities.⁶

6 The activities included: harvesting rice; cutting, baling and hauling off straw; ripping the ground; applying fertilizers and organics; creating berms; marking the trees; engaging in weed control; planting the trees; grafting the root stock; staking, pruning and trimming; maintaining the orchard floor; disking; floating; applying insecticide; engaging in gopher and vermin abatement; and mowing, pruning, chipping, and stacking brush. The Brichettos also installed a micro-sprinkler system supplied with water from a deep well the Brichettos constructed on an adjacent property.

This Lawsuit

Sharon and Gary initiated this action in June 2016 by filing a verified petition as beneficiaries of the EH Trust against Michael as trustee of the EH Trust. Sharon and Gary alleged Michael had a duty to distribute the EH Trust's interest in the Property to the beneficiaries on Lois's death, but he failed to do so. The petition stated Sharon and Gary “will concede for purposes of this petition that each beneficiary receive 1/3 of a 50% interest (16 2/3%) in the Real Property with no admission of liability or declaration against interest.”⁷ The petition sought: (1) a determination of the ownership interests in the Property; (2) an order requiring Michael to convey legal title to the beneficiaries of the EH Trust proportionate to their vested interests in the Property, and to sign all other documents reasonably necessary to complete the conveyance of legal title; (3) an order requiring Michael to distribute the EH Trust's assets; and (4) an order requiring Michael to be surcharged rent for his occupancy of the Residence to the extent he did not pay fair rent.

7 The petition further alleged: “From 1994 through October 5, 2015, the Lois Hofmann Trust held legal title as to an undivided 75% interest in the Real Property while the Erich Hofmann trust held legal title as to an undivided 25% interest in the Real Property.” The petition acknowledged Michael contended the trusts each held 50 percent equitable interests in the Property and the EH Trust continued to hold a 50 percent equitable interest in the Property, and alleged assuming that was true, Michael, Sharon and Gary each had a vested interest in the Property on Lois's death that included one-third of the EH Trust's 50 percent interest in the Property.

In October 2016, Michael filed a cross-complaint against Sharon and Gary, and the Brichettos, alleging 14 causes of action against Sharon and Gary and 12 against the Brichettos. Shortly thereafter, the Brichettos filed a cross-complaint against Michael, Sharon, and Gary, which: (1) sought to quiet title in the Property; (2) petitioned for an order determining the interests in the Property and directing Michael as trustee of the EH Trust to transfer the Property to them; (3) sought partition of the Property; and (4) alleged Michael's interference with their agreements with Lois, Sharon and Gary to purchase the Property. Sharon, Gary and the Brichettos filed demurrers to Michael's cross-complaint, which the trial court sustained in part with leave to amend.

The Demurrers to Michael's First Amended Cross-Complaint

Michael filed a first amended cross-complaint in February 2017, which asserted nine causes of action against the Brichettos and 14 against Sharon and Gary. Michael sought, among other things, reformation of the deed Eugene executed as part of the 1994 Transaction by which he transferred his 50 percent interest in the Property to Lois individually. Michael alleged the deed was erroneous because the parties intended for Eugene to transfer half of his interest to Lois and half to the EH Trust, which would make the EH Trust owner of half the Property. Michael further alleged he had no idea the error occurred because he trusted the parties had done everything to effectuate the intended trade.

The Brichettos and Sharon, joined by Gary, filed demurrers to the first amended cross-complaint. Both demurrers asserted Michael's reformation claim was barred by the three-year statute of limitations for fraud or mistake, as Michael had constructive and actual knowledge of the purported error since he participated in the 1994 Transaction as trustee of the EH Trust and he knew of the publicly recorded deed that conveyed Eugene's entire interest in the Property to Lois individually.

The trial court sustained the demurrers without leave to amend. The trial court found, in pertinent part: “On the face of the pleadings, it is clear Michael Hofmann's claims with regard to the 1994 transaction are barred by the statute of limitations.” The trial court further noted that whether Michael owned 8.33 percent or 16.67 percent of the property in the EH Trust was at issue in the probate petition; therefore, he had a remedy for the “ ‘wrongs' ” he attempted to allege in the first amended cross-complaint.

Sharon and Gary's First Amended Petition

After seeking leave of court, Sharon and Gary filed a first amended petition in October 2017, based on the discovery of a “Contract for Exchange of Real Property” Michael signed in connection with the 1994 Transaction (the Exchange Agreement) and his admission the signature was his. The Exchange Agreement provided that Eugene and the beneficiaries of the PH Trust agreed to sell and convey their interest in the Property to Lois individually. The first amended petition sought the same relief as the original petition, but no longer conceded the EH Trust held a 50 percent interest in the Property.

Michael's Further Amended Cross-Complaint

Two months later, Michael filed a verified pleading against Sharon, Gary, and the Brichettos entitled “Cross-Complaint of Michael Hofmann in Response to First Amended Petition …” which: (1) alleged claims for constructive trust and cancellation of the lot line adjustment against all respondents; (2) alleged four claims against Sharon as trustee of the LH Trust (interference with expected inheritance, nuisance, waste and violation of fiduciary duty); (3) petitioned to establish the EH Trust's claim to ownership of real property and for an order directing its transfer to the trust against the Brichettos and Sharon as trustee of the LH Trust; and (4) alleged a claim for declaratory relief against Sharon and Gary.

In the cross-complaint, Michael admitted his signature was on the recently discovered Exchange Agreement, although he had no recollection of signing it. Michael claimed Lois accomplished the 1994 Transaction without “fully informing” him or “obtaining his full consent, ” and she “unilaterally” traded away an asset owned by the EH Trust. According to Michael: “When Lois took title to [] Eugene's interest in the [] Property, she did so in her own name rather than as a co-trustee of the EH Trust. She claimed that she thus owned a 75% interest in the [] Property.” In his constructive trust claim, Michael alleged respondents were asserting a right in the Property greater than what they were entitled to, which they obtained by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act, that deprived him of his rightful share of interest in the Property. Michael requested imposition of a constructive trust over assets that were wrongfully transferred out of the EH Trust.

Respondents' Demurrer to Michael's Further Amended Cross-Complaint

The Brichettos demurred to the constructive trust claim, joined by Sharon and Gary, arguing it was time barred because it was an attempt to challenge the 1994 Transaction more than 20 years after Michael participated in and consented to it. In his opposition, Michael argued the claim was a new one and was not time barred. Michael asserted the 1994 Transaction took place without his full knowledge or understanding and he was not harmed at the time, either in his capacity as trustee of the EH Trust or as a beneficiary, since he remained a beneficiary of the LH Trust. Michael claimed he was harmed in August 2013, when Lois amended her trust and disinherited him, which he learned of in June 2014, and since his claim related back to the filing of the petition in June 2016, the claim was timely.

On February 2, 2018, the trial court sustained the demurrer without leave to amend, finding the constructive trust claim was a “ ‘creative' attempt to circumvent this Court's prior rulings preventing Michael Hofmann's time-barred attacks on the 1994 transactions.” The trial court found no change in the facts alleged since Michael filed his original cross-complaint and the only new thing was the claim Michael first obtained a copy of the Exchange Agreement in 2017. Michael, however, admitted his signature was on the agreement, which merely reflected what later occurred, namely, the recording of deeds to carry out its intent. The trial court further found Michael certainly was or should have been aware of the Exchange Agreement's terms in 1994. The trial court denied leave to amend because Michael had multiple chances to state a cause of action, the facts set forth in the constructive trust claim were insufficient to state a cause of action based on conduct that occurred in 1994, and Michael did not present any other facts that would suggest further leave to amend would allow him to state a cause of action.

On March 7, 2018, Michael filed a motion for reconsideration of the trial court's order denying him leave to file an amended cross-complaint. In the alternative, Michael renewed his motion for leave to file a third amended cross-complaint, which was attached to the motion. The Brichettos, and Sharon and Gary, filed oppositions to the motion. The trial court denied the motion, finding any motion for reconsideration was untimely, as it should have been filed no later than February 17, 2018, and even if it were timely filed, no new facts, circumstances or law were cited therein to support reconsideration, and it did not intend to reconsider its decision sua sponte. The trial court denied the alternative request for leave to amend “for the same reasons it denied the earlier motion, ” adding Michael's existing cross-complaint, and the answers to it, adequately placed at issue the legal and equitable questions it needed to resolve.

The Trial of Special Affirmative Defenses

In advance of trial, the parties stipulated to numerous facts and the admissibility of various exhibits. Among these facts were that following the 1994 Transaction, Lois owned a three-quarter interest in parcels one through four, while the EH Trust held the remaining one-quarter interest in those parcels.

A bench trial commenced on June 21, 2018. The trial court determined it would first try special affirmative defenses Sharon, Gary, and the Brichettos asserted to Michael's cross-complaint, namely, the statute of limitations and standing. During these proceedings, Michael dismissed his second cause of action for cancellation of the lot line adjustment without prejudice.⁸

8 In an opening statement, Michael's attorney asserted it was Michael's position there was a breach of trust when, in the 1994 Transaction, the EH Trust gave up its interest in two properties but received nothing back. The attorney further conceded Michael was aware a transaction had taken place and there was a trade, as he signed the Exchange Agreement and the deeds that transferred the properties, although he did not recall signing them.

At the conclusion of this portion of the trial, the trial court issued a tentative decision on the special affirmative defenses, which became the statement of decision. The trial court found none of the causes of action alleged in the cross-complaint survived: (1) the claim for interference with expected inheritance was barred as a matter of law by Beckwith v. Dahl (2012) 205 Cal.App.4th 1039; (2) the remaining causes of action were barred by the statute of limitations; and (3) the claim for violation of fiduciary duty also failed for lack of any duty and standing as it related to the LH Trust.

In its ruling, the trial court emphasized it had already determined in the prior demurrers that Michael presented “no valid legal basis for ‘going back in time' and reforming or rescinding the 1994 transactions between Eugene Hofmann and Lois Hofmann, ” and the time for challenging the 1994 transactions had long since passed. The trial court found: (1) Michael, as trustee of the EH Trust, acquiesced in the transfers of family property in 1994, as he acknowledged in his cross-complaint he signed the Exchange Agreement that provided Eugene's interest in the Property was to be conveyed to Lois; (2) the quitclaim deed that transferred Eugene's interest in the Property to Lois was recorded-a fact Michael stipulated to; (3) Michael acknowledged in previous court filings, namely, the petition in the August 2014 case, that he knew the Property was owned 75 percent by the LH Trust and 25 percent by the EH Trust, which made it clear Michael understood as of August 2014 the EH Trust only held a 25 percent interest in the Property and that had been the case since 1994; and (4) even if Michael did not know the EH Trust held a 25 percent interest, Michael is charged with constructive knowledge of the facts set forth in the recorded 1994 deeds in his capacity as trustee of the EH Trust. The trial court explained that to the extent the causes of action in the cross-complaint arose out of the underlying premise the EH Trust owns 50 percent of the Property they were subject to the special defense of statute of limitations.

The Trial on the Petition and the Brichettos' Cross-Complaint

Thereafter, a bench trial proceeded as to the claims asserted in Sharon and Gary's first amended petition and the Brichettos' cross-complaint. The trial court issued its tentative decision on April 24, 2019, in which it ordered counsel for Sharon and Gary to prepare a proposed statement of decision and interlocutory judgment. Michael filed a request for the statement of decision to address what he asserted were principal controverted issues. Sharon and Gary subsequently filed a proposed statement of decision and proposed interlocutory judgment, which Michael filed written objections to.

On July 19, 2019, the trial court issued a statement of decision and interlocutory judgment, which incorporated the tentative decision on the special affirmative defenses and the statement of decision. On Sharon and Gary's petition, the trial court determined the ownership interests in the Property as follows: (1) the Brichettos own a 75 percent interest in the Farmland, with Michael, Sharon and Gary each owning 8 1/3 percent (1/3 of 25 percent); and (2) Michael owns an 8 1/3 percent interest in the Residence, while Sharon and Gary each own 45 5/6 percent interests (as 1/3 beneficiaries of the EH Trust and 1/2 beneficiaries of the LH Trust). The trial court determined that under the circumstances the only equitable and reasonable result was to order Michael to sign documents perfecting the lot line adjustment, which it had the power to order under Probate Code sections 856 and 17200, subdivisions (a) and (b)(6). The trial court ordered Michael to distribute the EH Trust's assets in accordance with its terms, including executing deeds distributing the ownership interest in the Property as determined by the court.

Finally, with respect to Sharon and Gary's request that Michael be surcharged and ordered to pay rent for his occupancy of the Residence, while the trial court declined to surcharge Michael for rent before Lois's death, it found surcharging Michael for rent from September 1, 2015, through March 31, 2019, was just and consonant with equitable principles. The trial court found the total surcharge for rent was $84,300 plus interest, based on the following fair rental value of the Residence: (1) $1,900 per month from September 2015 through August 2017; (2) $2,000 per month from September 2017 through August 2018; and (3) $2,100 per month from September 2018 through March 2019.

As for the Brichettos' cross-complaint, the trial court found the Brichettos' agreements with Lois, Sharon and Gary were valid and the terms of the Lois Purchase Agreement were fully performed and ratified by Sharon and Gary as the LH Trust's beneficiaries. As such, the trial court determined the Brichettos own a 75 percent record title interest in the Property and the EH Trust owns the remaining 25 percent. The trial court further determined the Brichettos are entitled to receive another 16.67 percent interest in the Farmland pursuant to the terms of the Sharon and Gary Purchase Agreement.

On the Brichettos' partition claim, the trial court found the claim was valid and appropriate for the parties' common benefit. The trial court ordered the Property to be sold as two separate parcels, namely, the Residence and the Farmland, as the two parcels could not be physically divided among the parties in accordance with their interests and this was the most fair and equitable approach under the circumstances. The trial court found the Brichettos were entitled to a credit from the proceeds of the partition sale of the Farmland for the costs of improvements they made to the Farmland. The trial court also found the Brichettos were “entitled to recover from Michael the costs of the partition, including attorney's fees, necessarily incurred by the Brichettos in prosecuting this action in accordance with section 874.010 of the Code of Civil Procedure.”

Michael, Sharon and the Brichettos each sought a credit allowance in connection with the partition sale of the Property. While Michael sought an allowance of $379,950 for improvements made to the Property over the past 37 years, the trial court did not find Michael's testimony regarding his improvements credible or persuasive. After making findings as to each claimed improvement, the trial court concluded Michael was entitled to a total credit allowance of $142,122, if he left the grain tanks he installed on the Property, or $62,269, if he removed them. The trial court gave Sharon a credit of $12,059.88 for property taxes reimbursed to the Brichettos.

The trial court determined the improvements the Brichettos made to the Farmland were made in good faith and substantially increased the Property's value. The trial court found John Brichetto's testimony regarding the expenditures made to improve the Property was credible, the amounts expended were appropriate, and there was no basis to reduce those amounts. Accordingly, the trial court awarded the Brichettos $684,245.40 for the full cost of their improvements.

The interlocutory judgment was entered in conformity with the statement of decision. The interlocutory judgment further stated that “Sharon, Gary, and the Brichettos are the prevailing parties, and shall recover costs from Michael in a sum to be determined by timely filed memoranda of costs; this interlocutory judgment shall be amended to include the amount of costs awarded, ” and “[a]ny award of attorney fees shall be determined by separate motion; this interlocutory judgment shall be amended to include attorney fees if any are awarded.” The court clerk served the interlocutory judgment and statement of decision on the parties by mail on July 19, 2019, and Sharon and Gary's attorney served notice of entry of interlocutory judgment on the parties by mail on July 22, 2019.

Michael's Notice of Appeal and Respondents' Attorney Fees Motions

Michael filed his notice of appeal on September 11, 2019, which states he appeals “from the INTERLOCUTORY JUDGMENT entered herein on July 19, 2019 and from the STATEMENT OF DECISION filed herein on July 19, 2019 and all other orders and rulings that are separately appealable or which may properly be considered in hearing and deciding such appeal, without limitation.”

The Brichettos filed their motion for attorney fees on September 17, 2019, while Sharon and Gary filed their amended motion for attorney fees on September 24, 2019. Michael filed written oppositions to each motion. Hearing on the motions was held on January 28, 2020, and the trial court issued its written ruling on March 10, 2020, in which it granted each motion in part and denied each in part.

As to Sharon and Gary's motion, the trial court found they were entitled to attorney fees under the partition statutes (Code Civ. Proc., §§ 874.010-874.040), ⁹ and apportioned three times 16.66 percent (Sharon and Gary's interest in the Property under the EH Trust) of their attorney fees to Michael, which equaled $122,395.81. The trial court explained it used the multiplier to recognize “the tremendous attorney's fees incurred versus the likely fair market share of the property, ” noting Lois sold her interest in the Farmland to the Brichettos for $18,600 per acre or $765,762, which worked out to a per share value of $63,558.24 ($765,762 times 8.3 percent). The trial court denied their alternative request for attorney fees under section 2033.420.

9 Undesignated statutory references are to the Code of Civil Procedure.

On the Brichettos' motion, the trial court noted it previously awarded them attorney fees on their successful partition action in the statement of decision; therefore, the question presented on the motion was not whether they were entitled to attorney fees, but rather the amount of those fees. The trial court found the fees the Brichettos' claimed were reasonably incurred and, considering the equities, apportioned 50 percent of their fees to Michael, totaling $191,031.50, since a substantial portion of the litigation was due to Michael's continued advocacy for a meritless legal position “after a ‘reasonable' amount of time and treasure had been invested in this matter by all sides.” The trial court noted this percentage was nearly the same as the percentage awarded to Sharon and Gary, and it represented almost one-quarter of the cost of the Farmland, which was $191,440.50 ($765,762 times 25 percent).

The trial court issued an amended interlocutory judgment to include attorney fees and costs. The Brichettos served notice of the amended judgment on July 22, 2020. Michael did not file a notice of appeal from the amended interlocutory judgment.

DISCUSSION

I. The Demurrer and Motion for Leave to Amend

Michael first contends the trial court abused its discretion in “twice” denying him leave to amend his cross-complaint-once when the trial court sustained a demurrer to his constructive trust claim without leave to amend and then when it denied his motion for leave to file an amended cross-complaint. We will address each in turn.

A. Standards of Review

Our standard of review is well established. “ ‘When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.' ” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126, quoting Blank v. Kirwan (1985) 39 Cal.3d 311, 318. ) “A request for leave to amend may be made for the first time on appeal.” (Jensen v. The Home Depot, Inc. (2018) 24 Cal.App.5th 92, 97.)

A motion for leave to amend a complaint is directed to the trial court's discretion. (§ 473, subd. (a)(1).) The court is to exercise its discretion under a general rule of liberal allowance of amendments. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 939.) “[I]t is a rare case in which ‘a court will be justified in refusing a party leave to amend his pleadings so that he may properly present his case.' [Citations.] If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.) Even if there has been delay in the filing of the request for leave to amend, it is an abuse of discretion to deny leave if the other party has not been prejudiced or misled. (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564‒565.) On appeal, the conflict between the deferential abuse-of-discretion standard of review and the policy of allowing amendment liberally “ ‘is often resolved in favor of the privilege of amending, and reversals are common where the appellant makes a reasonable showing of prejudice from the ruling.' ” (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296‒297.)

B. The Demurrer

In his cross-complaint, Michael set out the 1994 Transaction, which resulted in Property being transferred from the EH Trust to Eugene and no portion of the Property being transferred into the EH Trust. Instead, Eugene's 50 percent interest in the Property was transferred to Lois individually, after which Lois claimed she owned a 75 percent interest in the Property. Michael admitted he signed the Exchange Agreement that memorialized this transaction, but alleged he had no recollection of doing so; he also admitted the quitclaim deed that transferred Eugene's interest in the Property to Lois individually was recorded. Michael recounted how Lois created the LH Trust and transferred her entire interest in the Property into it, alleging she “did not have the right to unilaterally trade away an asset owned by the EH Trust and then take the asset she received in her own name rather than returning it to the EH Trust.”

Michael alleged he was not yet harmed because he and his siblings “still stood to inherit equal shares of the EH Trust res whether title was held in the EH Trust or the LH Trust”; therefore, it did not matter whether the Property interests were divided 50/50 or 25/75. Michael asserted he was not harmed until December 2013, when Lois amended the LH Trust to disinherit him, at which point Lois was in breach of her fiduciary duties as a co-trustee of the EH Trust. Michael further alleged he did not learn of the lot line adjustment, the Lois Purchase Agreement, or the Sharon and Gary Purchase Agreement until June 2014.

In his constructive trust claim, Michael alleged he was deprived of his rightful share of interest in the Property because respondents asserted a right in the Property “that is greater than that to which he or she is entitled.” He further alleged respondents' shares were allocated to them “by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act, ” and asked that a constructive trust be imposed “over assets that were wrongfully transferred out of the EH Trust … to prevent unjust enrichment and to restore property owned by the EH Trust to its rightful owners.”

“A constructive trust is an involuntary equitable trust created by operation of law as a remedy to compel the transfer of property from the person wrongfully holding it to the rightful owner.” (Communist Party v. 522 Valencia, Inc. (1995) 35 Cal.App.4th 980, 990.) Its purpose is to prevent unjust enrichment and prevent a person from taking advantage of his or her own wrongdoing. (Ibid.) A constructive trust may be imposed only where the following conditions are satisfied: (1) the existence of a property or some interest in property; (2) the complaining party's right to the property interest; and (3) some wrongful acquisition or detention of the property by another party who is not entitled to it. (Ibid., italics omitted.)

Since a constructive trust is merely a remedy, not a substantive claim, “[a]n action to impose a constructive trust is subject to the statute of limitations that governs the underlying substantive right.” (Higgins v. Higgins (2017) 11 Cal.App.5th 648, 659 (Higgins); Davies v. Krasna (1975) 14 Cal.3d 502, 515‒516.) Michael's constructive trust claim as alleged in the cross-complaint is based on “fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act.” A claim for constructive trust based on fraud arises at the time the constructive trustee acquires the property and “[w]here the gist of an action is fraud, regardless of its form, ” the three-year limitations period of section 338, subdivision (d) applies, but “does not commence to run until the aggrieved party knows or should know of that fraud.” (Security First National Bank v. Ross (1963) 214 Cal.App.2d 424, 429‒430, 431; O'Melia v. Adkins (1946) 73 Cal.App.2d 143, 153.) The statute of limitations for breach of fiduciary duty by a trustee of an express voluntary trust begins to run when the trustee repudiates the trust and if the beneficiary did not receive written accountings, “the action against the trustee for breach of trust must be filed within three years of discovery of the claim.” (Higgins, supra, 11 Cal.App.5th at p. 663; Prob. Code, § 16460, subd. (a)(2).¹⁰)

10 Probate Code section 16460, subdivision (a)(2) provides: “If an interim or final account in writing or other written report does not adequately disclose the existence of a claim against the trustee for breach of trust or if a beneficiary does not receive any written account or report, the claim is barred as to that beneficiary unless a proceeding to assert the claim is commenced within three years after the beneficiary discovered, or reasonably should have discovered, the subject of the claim.”

Under either a fraud or breach of fiduciary duty theory, Michael's constructive trust claim is time-barred. Michael alleges Lois wrongfully acquired the property he claims belongs to the EH Trust in 1994. Michael knew or should have known of this wrongful acquisition in 1994, as he admitted he signed the Exchange Agreement that effected the transfer of EH Trust's purported interest in the Property to Lois and the quitclaim deed transferring the Property interest to Lois individually was recorded in the Stanislaus County Recorder's Office. Since Lois's wrongful acquisition of the Property occurred in 1994, the trial court correctly determined Michael is barred from presenting his claim over 30 years later.

Michael asserts the trial court abused its discretion in denying him leave to amend. He appears to contend the trial court was required to grant him leave to amend because this was his first attempt to amend the cross-complaint he filed in response to the first amended petition. It is true that for an original complaint “it has long been the rule that a trial court's denial of leave to amend constitutes an abuse of discretion unless the complaint ‘shows on its face that it is incapable of amendment.' ” (Eghtesad v. State Farm General Ins. Co. (2020) 51 Cal.App.5th 406, 411.) But Michael's cross-complaint was not his original one-he had two prior cross-complaints which asserted various claims based on the 1994 Transaction. That he filed the cross-complaint in response to Sharon and Gary's first amended petition does not make it an original pleading.¹¹

11 Michael also contends it was error for the trial court not to use its discretion to change its mind about the earlier demurrers because new facts were discovered at the time of trial. The only authority Michael cites in support of this claim, however, is Guan v. Hu (2018) 19 Cal.App.5th 495. Although the Supreme Court denied review of this case on March 28, 2018, it also ordered the case depublished. Citing depublished cases as precedent is prohibited on appeal. (Cal. Rules of Court, rules 8.1115(a), 8.1125(c)(2).)

Apart from this, Michael claims he can assert a viable constructive trust claim because: (1) Lois had a variety of fiduciary duties under Probate Code sections 16000 through 16005; (2) she breached these duties by exercising her power as trustee without the unanimous action of the EH Trust's trustees, in violation of Probate Code section 15620;¹² (3) these breaches did not cause him immediate harm because at the time the LH Trust provided its assets would be transferred to the children in equal shares, so he retained his full interest in the Property; and (4) when Lois disinherited him, he stood to inherit only the portion that remained in the EH Trust. Michael asserts it was this breach of fiduciary duty, and the resulting enrichment of others at his expense, that he sought to redress through his amended cross-complaint, and the facts compel a finding Sharon, as trustee of the LH Trust, holds at least an additional 8.33 percent interest in trust for him.

12 Probate Code section 15620 provides: “Unless otherwise provided in the trust instrument, a power vested in two or more trustees may only be exercised by their unanimous action.”

Michael fails to explain how these allegations avoid the statute of limitations. As we explained above, Lois's purportedly wrongful acquisition of EH Trust's interest in the Property occurred in 1994, which is when she repudiated EH Trust's interest by acquiring the interest in her own name and transferring it to the LH Trust, and Michael undoubtedly had at least constructive notice of this in 1994. Therefore, the limitations period began to run in 1994 and his constructive trust claim is time-barred.

Higgins is instructive. There, a wife and her husband agreed to hold funds in a bank account in trust for his stepmother, but the wife later removed the stepmother's name from the accounts and used the funds for her own purposes. (Higgins, supra, 11 Cal.App.5th at pp. 651, 653, 654‒655.) The stepmother's personal representative brought an action to impose a constructive trust on the funds after the stepmother's death. (Id. at pp. 651, 656.) The appellate court held the evidence established all the conditions necessary to impose a constructive trust based on the wife's repudiation of an express voluntary trust in which she agreed to hold funds in trust for the stepmother. (Id. at pp. 658, 660, 664.) The court explained the wife repudiated the trust by removing the stepmother's name from the accounts and breached her fiduciary duty by using the funds for her own purposes. (Id. at p. 663.) The court noted the statute of limitations for a constructive trust claim based on breach of fiduciary duty by a trustee of an express trust begins to run when the trustee repudiates the trust and if the beneficiary does not receive written accountings, the action against the trustee for breach of trust must be filed within three years of discovery of the claim. (Ibid.) The court found the complaint was timely because it was filed within the three-year limitations period, whether the wife's repudiation of the trust occurred when she removed the stepmother's name from the accounts, or later when she transferred money for her own purposes. (Ibid.)

Here, the statute of limitations began to run when Lois repudiated the trust, which occurred when she took the EH Trust's purported interest in the property in her own name, and used the funds for her own purpose, namely, transferring it to the LH Trust.¹³ At that point in time, Michael knew, or should have known, Lois had taken control of EH Trust's purported interest in the Property and placed it in her own trust.

13 Michael cites Higgins to assert that, like the wife in Higgins, “Sharon repudiated Lois' trust after Lois' death when she transferred a 75% interest [in the Property] to the Brichettos.” The repudiation, however, relates to repudiation of the express trust (the EH Trust), not the constructive trust or the LH Trust, which occurred here when Lois transferred EH Trust's interest into her own name and then into the LH Trust.

Michael contends he was not required to bring suit at that time because he was not yet harmed, since he still stood to inherit his full interest in the Property as a beneficiary of both the EH Trust and LH Trust. He asserts his claim did not accrue until Lois disinherited him in 2013, as this act diminished his inheritance to only the portion of the Property that remained in the EH Trust. Michael, however, does not cite any authority to support his contention. Instead, as stated in Higgins, the claim accrues when the express trust is repudiated, which occurred here when Lois transferred EH Trust's interest in the Property to the LH Trust.¹⁴ (Higgins, supra, 11 Cal.App.5th at p. 663; see Riley v. Dunbar (1934) 1 Cal.2d 143, 145 [right of action, if based on breach or repudiation of trust, accrued when trustee first committed fraudulent acts of purchasing the trust property for himself].) That is when the harm occurred. While Michael asserts he is seeking to redress the breach that took place when Lois disinherited him, this assumes Lois did not previously repudiate EH Trust's alleged interest in the Property. It was Lois's repudiation in 1994 that started the limitations period running and because Michael had notice of Lois's claim to that interest in 1994, the constructive trust claim is time barred.

14 Michael even states in his opening brief that Lois and her trust were “unjustly enriched when she transferred the full 50% interest [in the Property] to her trust.”

Moreover, contrary to Michael's assertion, he was harmed when Lois transferred EH Trust's interest in the Property to her revocable trust because, as Michael acknowledges, she retained the right to do what she pleased with that interest and was free to change the trust at any time during her lifetime, rather than as dictated by the EH Trust's terms. (Estate of Giraldin (2012) 55 Cal.4th 1058, 1065‒1066 [property transferred into a revocable inter vivos trust is considered the settlor's property for the settlor's lifetime, therefore the beneficiaries merely have a potential interest in the property; as long as the settlor is alive, the settlor has the power to divest the beneficiaries of any interest in the trust].)

In sum, Michael has not shown how he can amend his cross-complaint to assert a viable constructive trust claim. Therefore, the trial court did not abuse its discretion when it sustained the demurrer without leave to amend.

C. The Motion for Leave to Amend

Michael next contends the trial court abused its discretion when it denied his motion for leave file his proposed “Third Amended Cross-Complaint, ” which he brought as an alternative to his motion for reconsideration of the trial court's denial of leave to amend. On appeal, Michael primarily focuses on the constructive trust claim in his third amended cross-complaint, which was identical in all material aspects to the constructive trust claim asserted in his cross-complaint. But as discussed above, Michael cannot assert a constructive trust claim based on the 1994 Transaction, as his claim is barred by the statute of limitations. The trial court therefore did not abuse its discretion by denying Michael leave to reassert this claim in his proposed third amended cross-complaint.

Michael's proposed pleading also included a cause of action against Sharon, both individually and as trustee of the LH Trust, for trustee de son tort, for allegedly intermeddling in the LH Trust during Lois's lifetime by interfering with Michael's attempt to buy the Property from Lois and encouraging Lois to make changes to her trust. The term “trustee de son tort” describes a person who is not an appointed trustee, but who becomes a trustee by effectively acting as one, i.e., a constructive trustee. (King v. Johnston (2009) 178 Cal.App.4th 1488, 1505‒1506.) A person may become a constructive trustee “ ‘by intermeddling with and assuming the management of property without authority,' ” which makes them subject to the same rules and remedies as other trustees. (Ibid.) A court may impose trustee de son tort liability with respect to an individual's conduct in relation to all or part of the trust property. (Id. at p. 1506 & fn. 18.)

In the proposed pleading, Michael alleges that before Sharon became the actual trustee of the LH Trust on Lois's death, she became one by construction, without having the right to do so, by interfering with Michael's attempt to buy the Property and encouraging Lois to change her trust. These allegations, however, do not establish Sharon effectively acted as trustee with respect to the LH Trust or its property. (See King v. Johnston, supra, 178 Cal.App.4th at pp. 1493‒1495, 1506 [remanding for a determination whether the defendant was a trustee de son tort where she held herself out as the trustee, entered into a lease for real property held in the trust, accepted rent checks made payable to her as trustee, and endorsed and deposited the checks in an account she jointly owned].)

Moreover, even if Sharon was a trustee de son tort during Lois's life, she only owed fiduciary duties to Lois as the settlor, not to contingent beneficiaries like Michael. (Estate of Giraldin, supra, 55 Cal.4th at pp. 1062, 1066.) Michael does not claim Sharon breached duties she owed Lois. Instead, he alleges Sharon breached duties to him, e.g., by interfering with his ability to buy the Property and encouraging Lois to disinherit him. As confirmed by the Supreme Court, his allegations fail to state a cognizable claim as a matter of law. (Id. at p. 1066 [“so long as the settlor is alive, the trustee owes a duty solely to the settlor and not to the beneficiaries”; therefore, where a lawsuit alleges only that the trustee violated a fiduciary duty towards the beneficiaries during the settlor's lifetime, “the action could simply have been dismissed on the basis that no such duty exists”].) Therefore, the trial court did not abuse its discretion in denying Michael leave to amend to assert his trustee de son tort claim.

While the proposed pleading included a new cause of action for resulting trust, Michael does not address this theory anywhere in his opening brief, other than to briefly state the trial court could “find that Sharon is a constructive trustee, a resulting trustee, or trustee de son tort.” We treat the issue as forfeited, since Michael does not support his claim with any reasoned argument. (Tellez v. Rich Voss Trucking, Inc. (2015) 240 Cal.App.4th 1052, 1066 (Tellez) [“When an appellant asserts a point but fails to support it with reasoned argument and citations to authority, we treat the point as forfeited.”]; Cal. Rules of Court, rule 8.204(a)(1)(B) [each point must be separately headed and supported by argument and authority if available].)

Even if not forfeited, Michael has not met his burden of demonstrating the trial court abused its discretion by denying him leave to amend to add a resulting trust claim. “ ‘A resulting trust arises from a transfer of property under circumstances showing that the transferee was not intended to take the beneficial interest…. The resulting trust carries out the inferred intent of the parties; the constructive trust defeats or prevents the wrongful act of one of them.' ” (American Motorists Insurance v. Cowan (1982) 127 Cal.App.3d 875, 884‒885.) The statute of limitations on a resulting trust claim is four years and begins to run on repudiation by the trustee. (Estate of Yool (2007) 151 Cal.App.4th 867, 875.) The Exchange Agreement attached to Michael's cross-complaint, which was to be attached to Michael's proposed cross-complaint, makes clear the trustees and beneficiaries of the EH Trust expressly agreed Eugene's 50 percent interest in the Property was intended to be transferred to Lois individually, not as a trustee of the EH Trust. Therefore, Michael cannot now contradictorily claim Lois instead intended to take Eugene's interest on behalf of the EH Trust. Moreover, the claim is time barred, as Lois repudiated any trust in 1994, when she took the property for herself and transferred it to her own trust. Accordingly, the trial court did not abuse its discretion in denying Michael leave to amend to file a claim for resulting trust.

In sum, Michael has not met his burden of showing the trial court abused its discretion when it denied his motion for leave to amend.

II. Trial on the Special Affirmative Defenses

Michael's opening brief includes a heading entitled, “The causes of action in the cross-complaint were not barred by the statute of limitations.” It appears Michael is addressing the trial court's statement of decision on the trial of respondents' affirmative defenses, but it is not clear what aspects of that decision Michael is challenging. As Sharon and Gary assert, it seems from Michael's briefing that he takes issue with the trial court's ruling on his sixth cause of action for breach of fiduciary duty, which he brought against Sharon as trustee of the LH Trust.

A. Standard of Review

Where the relevant facts are not in dispute, the effect of the statute of limitations may be decided as a question of law. (International Engine Parts, Inc. v. Feddersen & Co. (1995) 9 Cal.4th 606, 611.) However, where the facts are disputed and thus subject to resolution by the trial court, an appellate court reviews those rulings under the substantial evidence standard of review, which provides that the trial court's resolution of disputed factual issues must be affirmed if supported by substantial evidence. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632; see Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112 [resolution of statute of limitations issue is normally a question of fact unless facts are uncontradicted].) Under these rules, we are required to defer to the trial court's factual findings on disputed facts, if supported by the evidence, while the application of the relevant statute of limitations to uncontroverted facts, or to the facts as found, is a legal issue subject to independent review.

B. Breach of Fiduciary Duty

In his breach of fiduciary duty claim, Michael alleged Lois, in performing the acts set forth in the complaint, “violated her fiduciary duty with respect to the EH Trust and the interests of Michael.” In the trial court, Sharon and Gary asserted this claim was barred by the one-year statute of limitations that requires suit to be brought within one year of a person's death and the four-year statute of limitations for breach of fiduciary duty. (§§ 343, 366.2.)

In the statement of decision, the trial court noted Michael had interests as both a beneficiary of the EH Trust and a beneficiary of the LH Trust. With respect to the testamentary EH Trust, the trial court found even if Lois had breached her duties to the EH Trust's beneficiaries, all of her actions-both the 1994 and 2012-2015 actions-were made prior to her death; therefore, section 366.2 applied to them. With respect to the revocable LH Trust, any actions Lois took during her lifetime with regard to that trust could not support a breach of fiduciary duty claim because she did not owe a fiduciary duty to the “beneficiaries, ” and even if a duty were owed, the statute of limitations barred the claim. Finally, Michael lacked standing to assert a claim for breach of fiduciary duty as to Lois's actions with respect to the LH Trust since he could only sue for breaches that harmed the beneficiaries against the settlor's wishes, and since Lois made the changes he was complaining about, they were not made against her wishes.

On appeal, Michael challenges the trial court's ruling only to the extent this claim was premised on Lois breaching her duties as trustee of the EH Trust. In his cross-complaint, Michael alleged Lois breached her duties as co-trustee of the EH Trust by trading away an asset of the EH Trust and taking in return an asset in her own name and for her own purposes. As we explained above, a claim for breach of fiduciary duty based on this exchange is barred by the three-year statute of limitations of Probate Code section 16460, subdivision (a)(2), since Lois repudiated EH Trust's interest in the Property when she transferred it to the LH Trust in 1994 and Michael discovered, or reasonably should have discovered, that EH Trust lost its interest in the Property that same year. (Higgins, supra, 11 Cal.App.5th at p. 663.)

Like his arguments regarding constructive trust, Michael argues his breach of fiduciary duty claim is not untimely because he was not immediately harmed by the 1994 Transaction as he still could have inherited what he claims is EH Trust's interest in the Property from the LH Trust. While Michael concedes Lois could have disinherited him from the LH Trust at any time and for any reason, he argues he was not harmed until she exercised that right in 2013, and the statute of limitations did not begin to run until he learned in October 2015, when he received notification of the trust amendment, that Lois had repudiated the trust by disinheriting him. This argument fails because, as we explained with respect to the constructive trust claim, Lois repudiated EH Trust's interest in the Property in 1994, not when Lois disinherited him in 2013; therefore, the limitations period began to run in 1994, which is when the harm occurred.¹⁵

15 Michael in passing asserts the statute of limitations on claims based on Sharon's breach of fiduciary duty began to run in October 2015, when Sharon repudiated the LH Trust by executing a deed transferring a 75 percent interest in the Property to the Brichettos. The breach of fiduciary claim, however, alleges only that Lois breached her fiduciary duty, not Sharon.

As the trial court recognized, Michael alleged other actions he claimed were breaches of Lois's fiduciary duties as trustee of the EH Trust, namely, obtaining the lot line adjustment and selling the Farmland to the Brichettos. Those actions, however, occurred before Lois's death, which calls into question whether the one-year limitations period of section 366.2 applies.

Section 366.2 is a “general statute of limitations for all claims against a decedent.” (Wagner v. Wagner (2008) 162 Cal.App.4th 249, 255.) The statute provides: “(a) If a person against whom an action may be brought on a liability of the person, whether arising in contract, tort, or otherwise, and whether accrued or not accrued, dies before the expiration of the applicable limitations period, and the cause of action survives, an action may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply.” (§ 366.2, subd. (a).)

Section 366.2 “ ‘applies to claims that could have been brought against the decedent had he or she lived.' ” (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 553.) In Ferraro, the appellate court held the statute did not preclude a cause of action for breach of an agreement to make a specific testamentary disposition because the cause of action “could not come into existence until decedent died having failed to make provision in accordance with her alleged agreement ….” (Id. at p. 554.) But section 366.2 will bar an action when the breach or misconduct occurs prior to the decedent's death and the claim is not discovered while the decedent is alive. (Dacey v. Taraday (2011) 196 Cal.App.4th 962, 983.)

Here, claims that Lois breached her fiduciary duty as trustee of the EH Trust based on actions she took before her death, such as the lot line adjustment or selling the LH Trust's interest in the Property to the Brichettos, are subject to section 366.2, as they could have been brought before Lois's death. Michael, however, contends the statute does not apply because he “could not bring a claim challenging the division of property stated in Lois' trust because Lois was free to change the trust at any time during her lifetime, ” citing Estate of Giraldin, supra, 55 Cal.4th at page 1066. As Sharon and Gary point out, Michael is conflating trusts-his claim against Lois for breaching duties as trustee of the EH Trust has nothing to do with his ability to bring a claim against Lois for the property distributions in the LH Trust. Michael undisputedly had the ability to bring an action against Lois as trustee of the EH Trust before she died, as he did in 2014.

Since section 366.2 applies to Michael's claims, he had one year after Lois's death in August 2015 to file suit. Sharon and Gary filed their petition in June 2016, less than one year after Lois's death, and Michael filed his original cross-complaint in October 2016, more than one year after her death. Michael contends his claim relates back to when Sharon and Gary filed their original petition.

Generally, the “filing of a complaint suspends the running of the statute of limitations as to any claims by the defendant against the plaintiff that are not time-barred when the action is filed.” (Blaser v. State Teachers' Retirement System (2019) 37 Cal.App.5th 349, 377; Boyer v. Jensen (2005) 129 Cal.App.4th 62, 69‒70; Luna Records Corp. v. Alvarado (1991) 232 Cal.App.3d 1023, 1026‒1027.) However, there is no tolling for a cross-complaint against persons other than the named plaintiff. (Sidney v. Superior Court (1988) 198 Cal.App.3d 710, 717‒718, fn. 4 [“[t]here is no tolling or ‘relation back' to save cross-complaints against third parties brought into the action by the defendant”]; Trindade v. Superior Court (1973) 29 Cal.App.3d 857, 859.)

Sharon and Gary filed their original petition in their capacity as beneficiaries of the EH Trust against Michael in his capacity as trustee of the EH Trust. In contrast, Michael's cross-complaint for Lois's alleged breach of duty was brought against Sharon as trustee of the LH Trust, although for purposes of the statute of limitations it is considered an action against Lois's estate. (Stoltenberg v. Newman (2009) 179 Cal.App.4th 287, 295‒297.) Since Michael's breach of duty claim is not against Sharon as a beneficiary of the EH Trust, he cannot invoke the tolling or relation back doctrine.¹⁶ Accordingly, under the one-year limitations period of section 366.2, Michael's breach of fiduciary claim is untimely because his original cross-complaint was filed more than one year after Lois's death.¹⁷

16 The trial court found the statute of limitations on Michael's claims in his cross-complaint were not tolled because they were not compulsory counterclaims. (See Luna Records Corp. v. Alvarado, supra, 232 Cal.App.3d at p. 1028 [a cross-complaint needs to be related to the subject matter of the plaintiff's complaint, i.e., arise out of the same occurrence, to relate back to the complaint's filing date].) Michael asserts there is a split of authority on this issue, and more recent cases hold the statute of limitations is tolled for any cross-claim, whether compulsory or not. (See ZF Micro Devices, Inc. v. TAT Capital Partners, Ltd. (2016) 5 Cal.App.5th 69, 84‒85.) We need not decide this issue, since even if the tolling doctrine applies to permissive cross-complaints, Michael's claims were not brought against Sharon as beneficiary of the EH Trust.

17 The trial court also found the limitations period of section 366.2 barred Michael's fourth and fifth causes of action for nuisance and waste, respectively, which were brought against Sharon as trustee of the LH Trust based on Lois's actions before her death. The trial court did not err in so finding, as the above analysis applies equally to these claims.

III. Michael's Inconsistent Statements

In the prior probate action Michael filed against Lois, Michael stated in his verified complaint that the EH Trust owned a 25 percent interest in the Property and the LH Trust owned the remaining 75 percent interest. Michael argues the trial court treated his verified pleading in the prior action as a judicial admission “that was forever binding” on him. Michael then lists various actions he contends the trial court took based on his so-called “judicial admission, ” i.e., the court denied “leave to amend, ” “barred” evidence at trial, “found his testimony untrustworthy, ” “punished” him by awarding attorney fees to the other parties, found an ouster, and charged him back rent. He asserts that at most his earlier statement was a prior inconsistent statement and the trial court committed reversible error by barring him from putting on evidence regarding why he took that position and why it changed.

Michael, however, only cites to one instance in the record where the trial court mentioned his prior statement. In its statement of decision on the trial on respondents' pleadings, the trial court found, with respect to whether Michael should be surcharged for back rent, that while Michael was enjoying exclusive possession of the Residence, he refused to distribute the interests Sharon and Gary were entitled to receive from the EH Trust based on his contention it held a 50 percent interest in the Property, even though he knew it held only a 25 percent interest because he signed paperwork in 1994 consistent with this understanding and “admitted in a verified petition that he filed in August 2014” that the EH Trust held only a 25 percent interest in the Property.

This does not show, however, that the trial court treated his prior statement as a conclusively binding judicial admission. Instead, the trial court considered the prior statement to show Michael's knowledge of how title to the Property was held, which was a permissible use. (Katz v. Feldman (1972) 23 Cal.App.3d 500, 504 [inconsistent allegations in separate actions create evidentiary admissions which, if verified, can be used to impeach the pleader or rebut his contentions as unfounded in fact]; Jones v. Tierney-Sinclair (1945) 71 Cal.App.2d 366, 374 [where a defendant alleges facts that are inconsistent with a position taken by the same party in a subsequent action, “the first verified pleading may be used as evidence against the pleader in the subsequent action as an admission against interest”].)

As for Michael's other claims of impermissible use of his prior statement, it is insufficient for Michael to state in a general way the trial court made rulings or barred him from introducing evidence based on the purported judicial admission. “ ‘It is the appellant's burden to demonstrate the existence of reversible error. [Citation.]' [Citation.] As part of that burden, the appellant must identify each order that he asserts is erroneous, cite to the particular portion of the record wherein that ruling is contained, and identify what particular legal authorities show error with respect to each challenged order.” (County of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1443.) “ ‘ “The appellate court is not required to search the record on its own seeking error.” [Citation.] Thus, “[i]f a party fails to support an argument with the necessary citations to the record, … the argument [will be] deemed to have been waived.”' ” (People ex rel. Strathmann v. Acacia Research Corp. (2012) 210 Cal.App.4th 487, 502-503; see Pittman v. Boiven (1967) 249 Cal.App.2d 207, 215 [“[a]n appellate court will not search the record for the purpose of discovering errors not pointed out in the brief, ” and “[i]t is the duty of counsel to refer the reviewing court to the portion of the record to which he objects and to show that the appellant was prejudiced thereby”].) Michael has failed to meet his appellate burden; therefore, we treat the remainder of his argument as waived or forfeited.

IV. Trial on Respondents' Pleadings

Michael challenges three rulings with respect to the trial on Sharon and Gary's first amended petition and the Brichettos' cross-complaint. Specifically, Michael contends the trial court: (1) wrongfully charged him “inflated back rent” for his occupancy of the Residence; (2) “improperly assess[ed] credits for improvements to the property”; and (3) “abused its power by forcing Michael to sign a Lot Line Adjustment.” We address each in turn.

A. Surcharge for Back Rent

In their first amended petition, Sharon and Gary sought an order compelling Michael, as trustee of the EH Trust, to account for his rental payments for his occupancy of the Residence from November 1989 to the present, and to surcharge him to the extent he did not pay fair rent.

In addressing whether it should surcharge Michael for rent in its statement of decision, the trial court first rejected Michael's argument he could not be surcharged for rent unless Sharon filed an unlawful detainer action. The trial court explained that Michael, as trustee of the EH Trust, owed duties to refrain from self-dealing (Prob. Code, § 16004, subd. (a)) and to make the trust property productive for the beneficiaries (id., § 16007); therefore, he may be surcharged for breach of those duties (id., §§ 16420, subd. (a), 16440).

The trial court next addressed Michael's argument he could not be surcharged for rent because he was a tenant in common with his siblings. (See Brunscher v. Reagh (1958) 164 Cal.App.2d 174, 176; Black v. Black (1949) 91 Cal.App.2d 328, 332 [an out-of-possession cotenant “may not maintain an action against his cotenant in possession for the rents, issues and profits derived from the property by means of the occupant's own labor”].) While the trial court recognized the general rule that a cotenant cannot recover rent from the other cotenants since each has a right to occupy the common property, it found several legally recognized exceptions to this rule applied and ordered Michael to pay rent.

Specifically, the trial court found three independent grounds for assessing rent: (1) because he “wrongfully dispossessed and excluded Sharon and Gary from the home in a manner consistent with an ouster” (Estate of Hughes (1992) 5 Cal.App.4th 1607, 1611‒1612 [an out-of-possession cotenant may recover the rental value from the cotenant in possession if he establishes an ouster, which “ ‘is the wrongful dispossession or exclusion by one tenant of his cotenant or cotenants from the common property of which they are entitled to possession' ”]; (2) because as trustee he maintained consistent and exclusive possession of the Residence and wrongfully prevented his siblings from acquiring their interests in the Property (Teixeira v. Verissimo (1966) 239 Cal.App.2d 147, 158 [a trustee is not a cotenant; “ ‘when a trustee denies the rights of the equitable owner and exercises exclusive possession under claim of right, he is chargeable with the reasonable rental value of the property' ”]); and (3) because he sought to obtain credit for improvements to the Residence and charging him rent was “just and consonant with equitable principles” (Hunter v. Schultz (1966) 240 Cal.App.2d 24, 31‒32 (Hunter) [in a partition action, where a cotenant in possession seeks contribution for improvements made or amounts expended to protect or preserve the property, the court may award the out-of-possession cotenant the reasonable value of the other's use of the property as an offset].)

On appeal, Michael only directly addresses the ouster exception, although he tangentially addresses the second exception, arguing the Teixeira v. Verissimo case is distinguishable because he is a beneficiary of the EH Trust. Michael, however, completely ignores the third exception that allowed the trial court to award rent as an offset to Michael's claim for improvements as part of the partition action. Michael, as appellant, has the burden of persuasion; he “ ‘cannot simply say the court erred, and leave it up to the appellate court to figure out why.' ” (People v. JTH Tax, Inc. (2013) 212 Cal.App.4th 1219, 1237 (JTH Tax).) “When a trial court states multiple grounds for its ruling and appellant addresses only some of them, we need not address appellant's arguments because ‘one good reason is sufficient to sustain the order from which the appeal was taken.” (Ibid., citing Sutter Health Uninsured Pricing Cases (2009) 171 Cal.App.4th 495, 513.)

We agree with Sharon and Gary that Michael has forfeited any claim the trial court erroneously surcharged rent by failing to address the third alternate basis that supported the trial court's ruling.¹⁸ (Brown v. Deutsche Bank National Trust Co. (2016) 247 Cal.App.4th 275, 281‒282.) Given our conclusion we need not, and do not, address Michael's arguments concerning ouster or the applicability of Teixeira v. Verissimo.

18 Although Sharon and Gary argued in their brief that Michael's failure to address this ground for the trial court's ruling in his opening brief amounted to a waiver, Michael did not respond to their argument or attempt to address the third exception in his reply brief.

Michael makes several other arguments concerning the award of rent. First, he points out the trial court declined to surcharge rent for Michael's occupancy of the Residence before Lois's death because she did not attempt to enforce her demand that he pay increased rent. Michael argues when Sharon became trustee of the LH Trust, she also “never tried to enforce the increased rent, nor any rent for that matter, ” which “should defeat her entire claim for back rent.” However, as Sharon and Gary point out, they did attempt to obtain rent from Michael by initiating this legal proceeding and seeking an order to surcharge him for rent.

Michael next asserts Sharon and Gary are not entitled to rent because Sharon executed a deed conveying a 75 percent interest in the entire Property to the Brichettos. The trial court rejected this argument, finding it was undisputed the Brichettos purchased a 75 percent interest in the Farmland only and did not purchase any interest in the Residence. Sharon could not execute a deed conveying a 75 percent interest in the Farmland only to the Brichettos because Michael refused to execute the lot line paperwork, and the Brichettos acknowledged they did not obtain an interest in the Residence. The trial court further found that despite the deed, the LH Trust continued to hold beneficial title to a 75 percent interest in the Residence and under the circumstances, Michael could not avoid surcharge for rent for his exclusive occupancy of the Residence.

Other than asserting that execution of the deed makes Sharon and Gary ineligible to claim entitlement to rent as to the Brichettos' purported interest in the Residence, Michael does not address the trial court's ruling, explain how it is erroneous, or cite any authority to support his assertion. As we have already explained, we do not consider assertions that are unsupported by reasoned argument or citations to pertinent legal authority. (Tellez, supra, 240 Cal.App.4th at p. 1066; Cal. Rules of Court, rule 8.204(a)(1)(B).)

Michael asserts the trial court failed to consider that the Brichettos ousted cotenants from the Farmland portion of the Property by exclusively using all the Farmland without paying rent to the EH Trust. The trial court, however, specifically addressed this argument: it found Michael waived the argument by failing to raise it before or during trial; and even if not waived, the Brichettos did not oust Michael from the Farmland, as they entered into a valid lease for the Farmland and made rental payments to the EH Trust consistent with the lease. Michael does not address the trial court's ruling, explain how it is erroneous, or cite any authority to support his assertion. Accordingly, Michael has forfeited this point. (Tellez, supra, 240 Cal.App.4th at p. 1066.)

Michael next argues the rent the trial court assessed was “greatly inflated.” In determining the rental amount, the trial court noted Michael did not present any evidence on the Residence's fair rental value, while Sharon and Gary presented the testimony of expert Josh Smith, which it found credible and persuasive. On that basis, the trial court determined the fair rental value of the Residence was $1,900 from September 2015 through August 2017, $2,000 from September 2017 through August 2018, and $2,100 from September 2018 through March 2019, for a total surcharge of $84,300 plus interest.

Michael contends the trial court abused its discretion in awarding these amounts because they were out of line with the value of the Residence, which he claims the trial court found to be $100,000, and with the $500 per month rent he paid Lois. But Smith's testimony supports the trial court's award. Smith explained what he considered in determining the Residence's rental value, which included reviewing the property profile and square footages, driving out to the property to get a general feeling of the location and area and the rentability of the property, and evaluating existing rentals. Although he did not go inside the home, he was able to form an opinion as to the rental value because he does not often go out to properties when assessing approximate rental values; that is typically done over the phone by comparable analysis, satellite views, and knowing approximately what is available on the property.

Smith also had a copy of an August 2015 appraisal and a deposition concerning some details of the property, which he used to look for square footages, as well as some photos, which confirmed Smith's determination of the Residence's condition. Smith was aware of the appraised value of the property, but he did not take the appraisal into consideration in reaching his conclusions.

Smith assumed the Residence was a three bedroom, two bath, 1, 500 square feet home, in good, but not new, condition. In addition, there were two barns and a detached garage. The barns had been updated and one converted to a finished office space. The entire parcel was approximately 1.85 or 1.87 acres. There also was a half in-ground/half out-of-the-ground swimming pool with a little pool house next to it, and a sand volleyball court.

Smith opined a conservative rental value as of August 2015 was $1,300 to $1,400 a month for the home and $500 for the barns, for a total approximate rent of $1,800 to $1,900 per month. His opinion was based on a variety of comparable rentals, including country homes with land and barns. One comparable Smith considered was a barn which rented for $500 per month. Another comparable was a 2, 100 square foot home with a detached barn that had been converted into an office and storage space. The home rented for $1,795 in 2013 without the barn. He also had a comparable that was a single-family home with an improved-finish shop or barn, which rented for $1,895 per month; the barn contributed about $300 per month to the rent.

Smith opined the rental value in August 2016 would have remained the same, but because rents throughout the Central Valley began to escalate in the last part of 2016, the rental value would have increased in August 2017 to $1,900 to $2,000 per month, and in August 2018 to $2,000 to $2,100 per month. These estimates were conservative values.

Smith's opinion, which the trial court credited, amply supports the trial court's finding of the rental value of the Residence. That Smith's estimated rental values were greater than what Michael was paying Lois does not show they were unreasonable; Michael even concedes he was not paying fair market value. And while Michael claims the rental values are out of line with the trial court's finding that the Residence was only worth $100,000, the trial court made no such finding. Instead, the trial court, in addressing Michael's request for an allowance of $379,950 for improvements made to the Residence, noted Michael testified he believed the Residence had a value of $100,000, ¹⁹ which meant he was seeking a credit nearly four times the home's asserted value. The trial court then stated “[i]mprovements that so far exceed the value of the property are not made in good faith.” The trial court used Michael's belief concerning the value of the Residence not to establish its actual value, but rather to determine whether Michael made the improvements in good faith.

19 In June 2015, Michael offered to buy the Residence for $356,250, which equaled the appraised value of $375,000 reduced by five percent, but that was not his opinion as to the value of the home. Michael testified at his deposition nearly two years later he believed the value of the Residence was $100,000.

Michael asserts the trial court should have rejected Smith's opinion of the rental value of the Residence because he did not go into the home, he did not consider the 2015 appraisal, and one of the comparable properties had a barn that the tenant did not rent. But “[i]t is within the exclusive province of the trier of fact to determine the credibility of experts and the weight to be given to their testimony.” (Francis v. Sauve (1963) 222 Cal.App.2d 102, 119.) Michael's complaints concern the foundation of Smith's opinion, which goes to the weight to be accorded his opinion and therefore are matters to be addressed in the trial court, not on appeal. (Id. at pp. 119‒120.)

Finally, Michael contends he is owed a portion of the rent since he is an 8.33 percent owner of the Property; therefore, “[t]he trial court erred by not including his interest in the amount of rent awarded and makes any assessment of rent overly inflated.” As Sharon and Gary point out, while Michael objected to aspects of the trial court's proposed statement of decision concerning the calculation of rent, he never objected on the grounds he raises for the first time on appeal. Since Michael failed to bring this omission to the trial court's attention, we will “infer the trial court made implied factual findings favorable to” Sharon and Gary on this issue and will review the implied factual findings under the substantial evidence standard. (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 59‒60.) At trial, Smith testified his rental values were very conservative in nature. Based on this testimony, we infer the trial court assessed rental rates considering Michael's small, fractional ownership interest.

In sum, Michael has not shown the trial court erred in surcharging him for the rental value of the Residence or in determining the amount of that surcharge.

B. The Credits for Improvements

Michael contends the trial court erred by improperly assessing credits for improvements to the Property. In a partition action, “[t]he court may, in all cases, order allowance, accounting, contribution, or other compensatory adjustment among the parties according to the principles of equity.” (§ 872.140.) Compensatory adjustments are appropriate for improvements that enhance the value of the property. (Wallace v. Daley (1990) 220 Cal.App.3d 1028, 1035‒1036 (Wallace); see Cal. Law Revision Com. com., West's Ann. Code Civ. Proc. (2021) foll. § 872.140.)

Since a partition action is equitable in nature, “a court of equity is required to take into account the improvements which another cotenant, at his own cost in good faith, placed on the property which enhanced its value and to award such cost to him.” (Mercola v. Chester (1950) 97 Cal.App.2d 140, 143 (Mercola); Ventre v. Tiscornia (1913) 23 Cal.App. 598, 605 (Ventre) [“where it is shown that one cotenant in common has, in good faith, with or without the consent of his cotenant, expended money in making permanent improvements which were necessary to the preservation of the common property, partition should not be decreed without first counting the cost of such improvements and making a suitable allowance for the same”].)

A suitable allowance for improvements varies based on the circumstances of the case. In Wallace, a cotenant in a partition action was entitled to a credit for the increase in the property's value caused by improvements her predecessor in interest made to the property, rather than the costs of the improvements themselves.²⁰ (Wallace, supra, 220 Cal.App.3d at pp. 1038, 1040.) In Mercola, an action for partition of a 99-year leasehold interest in real property, the plaintiffs were entitled to recoup the costs they incurred in acquiring the lease and constructing a building on the property because the parties' agreement provided the plaintiffs would receive all net profits until they were repaid the actual cost expended in acquiring the leasehold and constructing the building. (Mercola, supra, 97 Cal.App.2d at pp. 141‒144.) And, in Scott v. Staggs (1954) 129 Cal.App.2d 54 (Scott), the defendants were entitled to a credit for labor and materials they furnished to paint the rental units on the property following the property's sale, where the trial court reasonably could infer the improvements made a sale more likely and actually enhanced the property's value. (Id. at pp. 58‒59; see Williams v. Miranda (1958) 159 Cal.App.2d 143, 159 [trial court did not err in awarding the plaintiff reimbursement for repairs that increased the property's value and as a consequence, brought a better sales price].)

20 The predecessor in interest's improvements included tearing down a back porch, clearing the property of debris, laying a new foundation, building a new bathroom, adding a septic tank, renovating electrical wiring, replacing a burned out barn with a concrete and metal building, repairing the chimney and well, and replacing the house's roof. (Wallace, supra, 220 Cal.App.3d at p. 1033.)

In determining compensatory adjustments for improvements, “[t]he weight and sufficiency of the evidence, the construction to be put upon it, and the inferences to be drawn therefrom, as well as the question of the credibility of the witnesses and the determination of conflicts and inconsistencies in the testimony, ” are matters for the trial court. (Scott, supra, 129 Cal.App.2d at pp. 58‒59.) “The standard of review for an interlocutory judgment of partition is an abuse of discretion.” (Cummings v. Dessel (2017) 13 Cal.App.5th 589, 597; see Lin v. Jeng (2012) 203 Cal.App.4th 1008, 1025 (Lin) [“When a trial court makes a ruling based on equitable considerations, the abuse of discretion standard applies on review of that ruling”].) “Under that standard, ‘[t]he trial court's “application of the law to the facts is reversible only if arbitrary and capricious.” [Citation.]' [Citation.] ‘[A] disposition that rests on an error of law [also] constitutes an abuse of discretion.' ” (Cummings v. Dessel, at p. 597.)

1. The Brichettos' Improvements

The Brichettos sought an allowance or adjustment for the cultural costs and expenses they incurred to develop a walnut orchard on the Farmland. John Brichetto, who had significant experience developing walnut orchards, took possession of the Farmland in 2014, after the prior lessee harvested the rice he was growing on the Farmland. John decided to plant a walnut orchard because he believed it was the most appropriate crop for the soil. The Brichettos planted very young walnut trees in March 2016. As of January 2019, the trees were going on their fourth leaf, and John expected they would harvest their first crop by October 2019.

John helped prepare a written summary of the cultural costs his family expended from 2014 through 2018 to plant, develop, cultivate, and maintain the walnut orchard, including installing a micro-sprinkler irrigation system, and the projected costs to maintain the orchard from January 2019 to the expected 2019 harvest. John provided all the figures on the summary, which were based on his actual cost accounting and past farming experience, allocated on a per acre basis.²¹ Accounting for some differences in cultural practices, John testified the Brichettos' actual costs were consistent with the estimated costs reflected in a 2017 walnut production study published by the University of California Agriculture and Natural Resources Cooperative Extension at the University of California, Davis (the UC Davis study).²²

21 John testified the Brichetto family farms nearly 5, 000 acres, 3, 700 of which are planted in orchards; 1, 000 of those acres are planted in walnuts. The Brichettos mostly farm the 5, 000 acres using their own equipment. They do not keep track of expenses or allocate costs on a per parcel basis; rather, the parcels are farmed as one unit. John, however, knows the common rates for various cultural activities and he can associate costs on a per acre basis.

22 The trial court admitted the 2017 study, entitled “Sample Costs to Establish an Orchard and Produce Walnuts, ” over Michael's attorney's objection that the study was not sufficiently similar to the Brichettos' orchard.

John testified regarding the specific improvements made to, and the cultural activities performed on, the Farmland. John confirmed that, as shown on the summary of cultural costs, the total amount the Brichettos expended for cultural activities and improvements was $600,464.45, and their projected costs from January 2019 to the expected harvest in October 2019 totaled $83,780.95. Over Michael's attorney's objection, the trial court admitted the summary of cultural costs and improvements.²³

23 Michael's attorney objected to admission of the summary and asked to voir dire John because the attorney believed further questioning would reveal the summary was basically a budget or estimate of costs and there were no receipts or checks to show the amounts actually incurred. The trial court overruled the objection.

Gatzman, the rural agricultural appraiser, opined the “as-is” market value of the Farmland, improved with immature walnuts, was $1,636,000 as of September 13, 2017, and a hypothetically unimproved market value, considered “as vacant” and farmed to rice, was $1,145,000 as of the same date. Gatzman opined the highest and best use of the Farmland was for irrigated cropland suitable for development to permanent plantings, which in the as-improved valuation meant continued use as a walnut orchard.

Based on this evidence, the trial court found the Brichettos' improvements were made in good faith and substantially increased the value of the Property, and John's testimony as to the amounts expended and the projected costs credible and the amounts appropriate. Consequently, the trial court awarded the Brichettos a total credit of $684,245.40 from the partition sale for the cost of the improvements constructed on the Farmland and the additional cultural costs they expected to incur through September 2019 to maintain the Farmland.

Michael complains the Brichettos' evidence on costs “did not consist of any actual expenditures but were basically estimates without any supporting documentation.” Noting that the Brichettos do not keep track of expenses on a per unit basis, he asserts it is “impossible to then extrapolate those costs to the Property because any comparison is speculative.” He further asserts the trial court improperly used the UC Davis study as the basis for its decision, since a “reasonable comparison could not be made” between the UC Davis study and the Brichettos' expenses, since John “admitted to numerous and substantial differences between the UC Davis [study] and the crop he planted, which led to substantial differences in the cost of various line items.”

The trial court did not abuse its discretion in accepting John's estimate of the cost of the improvements to the Farmland or considering the UC Davis study. As the Brichettos point out, John, as the person primarily responsible for coordinating and paying for the improvements, was the person best suited to speak to the construction and cost of those improvements. John testified extensively as to the actual costs the Brichettos expended in developing the orchard and to his participation in the preparation of the summary of those costs. Given John's extensive experience and knowledge of the Brichettos' farming operation, it was reasonable for the trial court to accept his estimates of the costs associated with improving the Farmland.²⁴ Michael simply disagrees with the trial court's determination. But the weight and sufficiency of the evidence, as well as the credibility of witnesses, are matters for the trial court. (Scott, supra, 129 Cal.App.2d at p. 58.)

24 Michael asserts the trial court applied a stricter standard to him than to the Brichettos because the Brichettos' credits were based on estimates without any supporting documentation, while he submitted actual receipts and documents that, although incomplete, consisted of “partial evidence.” The statement of decision, however, shows the trial court simply made a credibility determination, finding John's testimony credible and Michael's not credible or persuasive. As we discuss further below in addressing Michael's claimed credits, the trial court is the arbiter of witness credibility and the exclusive judge of the credit and weight to be given the testimony of each witness. (Hunter, supra, 240 Cal.App.2d at pp. 33‒34.)

As for the UC Davis study, the trial court does not mention the study when addressing the Brichettos' claim for credits for improvements in its statement of decision; therefore, it does not appear the trial court used it as a basis for its decision. To the extent Michael contends the trial court erred in admitting the UC Davis study, he does not make any reasoned argument or cite to any authority. We do not consider assertions that are unsupported by reasoned argument or citations to pertinent legal authority. (Tellez, supra, 240 Cal.App.4th at p. 1066; Cal. Rules of Court, rule 8.204(a)(1)(B).)

In any event, in overruling Michael's attorney's objection to the study's admission on the ground it was not sufficiently similar to the orchard on the Farmland, the trial court noted the objection was not one of admissibility, but rather the study's evidentiary weight. The trial court invited Michael's attorney to cross-examine John on the study and argue against its weight, which he did. Moreover, John testified he regularly consults reports such as the UC Davis study as a “check” to make sure his actual farm development costs are “in line” with the costs reflected in the reports. John used the study to validate his actual costs, not to adopt the costs reflected in it. As the study was relevant to John's method for determining his actual costs, the trial court did not abuse its discretion in admitting it.

Michael next claims the Brichettos were unjustly enriched because the trial court refused to reduce the Brichettos' credit for profits and tax benefits they allegedly received. The trial court found there was no basis to reduce the credit awarded because: (1) the Brichettos had not yet realized any revenue from their improvements and depending on the outcome of the partition sale, they may never realize any profits;²⁵ and (2) no evidence was presented as to the potential profits or tax breaks the Brichettos might realize as a result of the improvements, and any such testimony would have been speculative.

25 Michael asserts in his reply brief this shows the Brichettos had not yet improved the Farmland and “renders all their ‘improvements' speculative.” That the walnut orchard was not income producing at the time of trial does not mean the immature trees were not improvements, as shown by Gatzman's testimony that the immature trees increased the Farmland's value.

Michael does not explain how the trial court erred. No evidence was presented as to any revenues or profits the Brichettos' received from improving the Farmland. And as the Brichettos point out, there could not be any such evidence, since at the time of trial the trees, which were in their third leaf and not yet in production, had not begun generating revenue. Michael also did not present any evidence of tax benefits the Brichettos purportedly received. While Michael's attorney elicited some testimony from John that expenses are offset against income from crop sales for tax purposes, no figures were discussed or presented to the court. Since the trial court's decision is supported by the record, the trial court did not err in refusing to deduct nonexistent profits or undetermined tax benefits.

Finally, Michael contends the trial court erred by awarding the Brichettos' credits for their improvements because they were not made in good faith. Specifically, he asserts there could not be good faith when the Brichettos (1) spent more on improvements than the increased value of the property due to those improvements, and (2) entered into the Lois Purchase Agreement knowing Michael's consent to a property split was needed, yet they proceeded with the transaction, “even acknowledging that everyone might end up i[n] court because they were actively concealing their activities from Michael.”

On the last point, even if the Brichettos acquired an ownership interest in the Farmland without Michael's knowledge or consent, they are not precluded from improving the shared property or recovering the cost of their improvements in a partition action. (See Wallace, supra, 220 Cal.App.3d at p. 1038 [cotenant entitled to credit for improvements made by her predecessor in interest].) Nor does a cotenant's failure to consent to the improvements prevent recovery. (Mercola, supra, 97 Cal.App.2d at p. 143.) Similarly, the Brichettos' purchase of an undivided interest in the Property does not prevent them from recovering the cost of their improvements, even if they knew the matter may end up in court.

On the first point, spending more on improvements than the increased value of the property does not necessarily mean the improvements were not made in good faith. But under common law, where a cotenant necessarily and in good faith improves the common property and enhances the value at his own cost, that cotenant is entitled to “such equitable compensation as would leave only the value of the estate without the improvements to be divided among the tenants in common.” (Ventre, supra, 23 Cal.App. at pp. 604‒605.) This is consonant with section 873.220, which provides that when the property is divided in kind, the property is to be “so divided as to allot to a party any portion that embraces improvements made by that party or that party's predecessor in interest, ” and in dividing the property and making the allotment, “the value of such improvements shall be excluded.”²⁶

26 Section 873.220 provides in its entirety: “As far as practical, and to the extent it can be done without material injury to the rights of the other parties, the property shall be so divided as to allot to a party any portion that embraces improvements made by that party or that party's predecessor in interest. In such division and allotment, the value of such improvements shall be excluded.”

The principle that the property should be divided based on its value without the improvements, with the cotenant receiving the improvements, applies equally to partitions by sale. As explained in Wallace, “[e]ssential principles of equity require that a cotenant be credited with improvements made in good faith regardless whether the court proceeds by division or sale of the property provided that it can be done without material injury to the rights of the other parties.” (Wallace, supra, 220 Cal.App.3d at p. 1038.) The amount of that credit is the increase in the value of the property caused by the cotenant's improvements. (Ibid.) If the improving cotenant received the cost to install the improvements in excess of the increase in the property's value caused by them, he would reap a benefit at the expense of the non-improving cotenant, who is entitled to receive his share of the property's value without the improvements.

Here, Gatzman testified the Brichettos' improvements increased the fair market value of the Farmland from $1,145,000 to $1,636,000 as of September 2017, a difference of $491,000. The trial court nevertheless awarded the Brichettos a $684,245.40 credit. Thus, the Brichettos were credited $193,245.40 over the increase in the Farmland's value caused by their improvements. This was an abuse of discretion, as it is inequitable for Michael to bear the costs that exceed the benefit the improvements provided.

The Brichettos assert “appellate courts routinely uphold decisions awarding the improving cotenant the costs of improvements without proof of the precise contributory value of those improvements, ” and “it is sufficient that the improvements add value.” (Emphasis omitted.) The cases they cite, Scott and Mercola, however, are distinguishable.

In Scott, the improvements consisted of painting the rental units to get the property ready to sell. The appellate court held the trial court did not err in awarding the costs of those improvements in the final accounting following the property's sale to the improving cotenant, as it was reasonable for the trial court to infer that had the “painting improvements” not been made, even the improving cotenant would not have been anxious to bid at the sale, and “the improvements did actually enhance the value of the property, thus assuring the [non-improving cotenant] recovery of a greater share of the net proceeds of the sale.” (Scott, supra, 129 Cal.App.2d at p. 59.)

In Mercola, the trial court ordered the plaintiffs, on the partition sale of a leasehold and building, to be paid from the sales proceeds the amount of their investment in the building pursuant to the parties' agreement that the defendant was not entitled to share in the profits of the lease until the plaintiffs were repaid the entire amount of their investment. (Mercola, supra, 97 Cal.App.2d at pp. 141, 142.) On appeal, the defendant contended the sales proceeds should be divided among the parties without repaying the plaintiffs. (Id. at p. 141.) In affirming the trial court's decision, the appellate court explained if the sale yielded an insufficient amount to repay the plaintiffs, dividing the sales price as the defendant contended would result in his receipt of a cash award without having made any cash investment and the plaintiffs would lose the money they expended in the expectation, affirmed by the parties' explicit contract, that they would be repaid before any division was made. (Id. at p. 144.) Such a result, the appellate court stated, “would be unjust and unsupportable in law or in equity.” (Ibid.)

In contrast to these cases, the parties do not have an agreement concerning reimbursement for improvements and the Brichettos are not seeking credit for expenses incurred to place the property in a saleable condition that would lead to Michael receiving a greater share of the sales proceeds. Instead, they sought a credit for the entire cost of installing and maintaining the immature walnut trees, which was greater than the increase in the property's fair market value. If they were given a credit for all their costs, Michael would not recover a greater share of the net proceeds of the Farmland's sale, as in Scott, since he would receive less than his share of the Farmland's unimproved value. In that situation, the principles of equity dictate limitation of the Brichetto's credit to the increased value of the Farmland caused by their improvements.

The Brichettos assert Michael's argument ignores a “basic fact, ” namely, that the improvements are income-producing and therefore continue to add value, since the trees will increase in production and generate income, which was not included in the determination of the Farmland's “present value.” While the value of the improved property may increase as the walnut trees produce nuts, the Brichettos did not present any evidence of what that increase would be. Gatzman was not asked to value the Farmland as of the January 2019 trial date and while the Brichettos' attorney attempted to elicit testimony from her regarding how the prices for acres of walnuts changed since her September 2017 appraisal, the trial court sustained Michael's attorney's objection that it went beyond the scope of her deposition.

In sum, while the trial court did not err in finding the Brichettos' improvements were made in good faith, and in accepting John's valuation of those improvements, it did err in awarding a credit for all of their improvements. Instead, the Brichettos' are entitled to a credit only for the increased value of the Farmland caused by their improvements, which the evidence showed was $491,000.

2. Michael's Improvements

At trial, Michael sought a $379,950 credit allowance for improvements he claimed he made to the Residence from 1982 to 2017. The improvements included: (1) renovating the house and two barns; (2) contributing to the Oakdale Irrigation District's installation of an underground pipeline; (3) installing an above-ground pool and building a pool house; (4) restoring a sunroom; (5) restoring the garage; (6) twice replacing submersible pumps on the property; (7) building a concrete pad for future construction; (8) installing a septic tank and painting the house; and (9) installing two grain storage tanks. Michael created a spreadsheet that summarized the expenses he claimed he incurred for these improvements. He testified about the improvements and how he determined the cost for each one.

Michael explained he transferred data from his check register onto the spreadsheet to document the cost of the improvements, although he did not have check registers for every improvement. He did not use check registers to estimate the costs for the 1982 home renovation, the small barn, the pool, the sunroom, and the garage; he either did not have the check registers or he could not locate them. Michael claimed he used check registers for the pipeline, pool house, concrete pad, and well work but he did not have the check registers with him at trial. The large barn and storage tanks were based on check registers which were detailed in trial exhibits, and Michael brought copies of cancelled checks to document the septic tank.

Michael used “[h]istorical information and memory or estimates” to come up with the costs for improvements he did not have check registers for; he claimed to have a distinct memory of the costs of some of the items and repairs, and for other items, he used a “form of memory recall” derived from estimates based on recent projects. When asked to recall from memory his expenditures for sheetrock on various projects, the numbers were inconsistent with those reflected on the spreadsheet.²⁷

27 Michael testified to the following sheetrock costs: (1) $4,000 or $4,500 for the 1982 home renovation; (2) $2,500 or less for the small barn; (3) $3,500 or $3,700 for the pool house; (4) $2,000 to $2,500 for the sunroom; (5) $3,500 for the garage; and (6) $5,500 to $6,000 for the large barn. The spreadsheet, however, showed the sheetrock costs as: (1) $6,500 for the home renovation; (2) $1,500 for the small barn; (3) $2,500 for the pool house; (4) $1,500 for the sunroom; (5) $2,750 for the garage; and (6) $10,580 for the large barn.

In addressing Michael's requested credit allowance in the statement of decision, the trial court first noted based on Michael's testimony he believed the home had a value of $100,000, he was seeking a credit for improvements “nearly four times the asserted value of the home, ” and “[i]mprovements that so far exceed the value of the property are not made in good faith.” The trial court further noted Michael did not present any evidence the claimed amount increased the Residence's present-day value; therefore, there was no evidence any of the claimed improvements actually increased or contributed to the Residence's current value, which left the court to speculate whether the improvements added current value to the Residence and if so, in what amount.

In addition, the trial court was “concerned that much of Michael's estimates [were] based on his memory of costs incurred and that Michael's memory is no longer accurate, ” noting he could not provide an accurate number or even one close to that in his spreadsheet when asked not to look at it, and he “produced almost no documents at trial supporting his cost estimates.” The trial court further noted the difference between the amount Michael was claiming here and the allegation in his August 2014 petition that he spent in excess of $100,000 on improvements; the trial court found the “difference in the figures” notable, “particularly in light of Michael's questionable memory and credibility.”

Based on the above, the trial court did not find most of Michael's testimony regarding the improvements credible or persuasive. Nevertheless, the trial court addressed each claimed improvement and awarded the following: (1) nothing for the house remodel, small barn, swimming pool, and concrete pad; (2) $10,000 for the pipeline; (3) $19,227 for the pool house and sunroom; (4) $8,600 for the garage; (5) $15,960 for remodeling the large barn; (6) $2,382 for the well projects and $6,100 for the septic tank work; and (7) $79,853 for the grain tanks. The trial court concluded Michael was entitled to a total credit allowance of $142,122 if the grain tanks were left on the Residence or, in the alternative, $62,269 if he removed the grain tanks.

On appeal, Michael only specifically challenges some of these items, which we address in turn below. He also argues the trial court erred in finding he did not make the improvements in good faith. While the trial court noted Michael was seeking a credit for improvements that were nearly four times the home's asserted value, which indicated the improvements were not made in good faith, the trial court did not deny Michael credits based on this finding. Instead, the trial court reviewed each of Michael's claims and awarded credits in the exercise of its discretion.

a. The House and Small Barn

The trial court disallowed credits for remodeling the Residence in 1982 and converting a small barn into an office in 1985, noting the “tasks were performed some 37 years ago, ” and the costs were based solely on Michael's memory, which the trial court questioned. The trial court found that without more evidence, improvements performed 37 years ago added no value to the Residence.

Michael asserts that while he did not have receipts to document his 1982 restoration of the almost 80-year-old house, he distinctly recalled the costs. He argues no one would keep copies of 40-year-old receipts or have a memory any clearer than his, but that does not mean the renovations did not add value. He also asserts many of the improvements were necessary to keep the residence functional, such as renovating the home's original wiring to avert a potential fire and replacing the roof on the small barn following a fire, and absent the renovations, the house would be uninhabitable.

Michael, however, is attempting to relitigate the trial court's assessment of his memory, which is not our function. The trial court, as the arbiter of witness credibility, has the inherent right to disregard a witness' testimony when it is satisfied the testimony “ ‘is inherently improbable due to its inaccuracy, due to uncertainty, lapse of time, or interest or bias of the witness.' ” (Hunter, supra, 240 Cal.App.2d at p. 33.) As the trier of fact, the trial court is “ ‘the exclusive judge of the credit and weight to be given to the testimony of a witness' ” and was free to “ ‘reject such testimony even though uncontradicted and unimpeached' ” as long as it did not act arbitrarily, but acted on “ ‘sound and relevant considerations.' ” (Id. at pp. 33‒34.)

There is nothing to suggest the trial court acted arbitrarily in rejecting Michael's testimony. Moreover, as the trial court found, Michael did not present any evidence of how the 37-year-old improvements added current value to the Residence. The trial court did not abuse its discretion in determining there was insufficient evidence of enhanced value to the Residence due to these improvements and disallowing the credits on that basis.

b. The Pipeline

In reducing Michael's claimed credit for the pipeline project from $55,000 to $10,000, the trial court noted there was conflicting evidence as to the amount Michael contributed to the project. The pipeline project was a collective effort by the Oakdale Irrigation District, the United States Department of Agriculture, and the landowners which benefited from the project. While Michael claimed to have contributed $55,000 to the project, he could not produce a single document substantiating the amount he paid. Michael testified his father and uncle paid some portion of the project's cost and neighboring landowners shared in the cost pro rata based on the total linear feet of the pipeline crossing each landowner's property, which totaled approximately $40,000. Evidence was presented the Hofmann's portion should have been approximately $10,000 based on the total linear feet involved in the project. The trial court found there was insufficient evidence Michael contributed $55,000 to the project, as his testimony was not credible, and the evidence instead supported a finding he contributed at most $10,000 to the project.

Michael appears to contend the trial court erred in awarding him only $10,000 for his contribution to pipeline project because he testified his personal contribution was $55,000 and “the supposed conflicting evidence, ” namely, an exhibit that Michael was asked about at trial, was not admitted into evidence. But as we have explained, as the arbiter of witness credibility, the trial court was free to reject Michael's testimony regarding the amount of his contribution. (Hunter, supra, 240 Cal.App.2d at p. 33.) And even though the exhibit, which was an invoice for the pipeline project from Oakdale Irrigation District to Michael, was not admitted into evidence, Michael testified he understood the landowners' portion of the project was $43,000, he saw that the invoice showed the landowners' portion was $40,000, and he agreed each landowner would pay a pro rata portion of the costs. Moreover, Michael agreed the Hofmann's portion of the project was around 25 percent of the project's total linear feet. Based on this evidence, the trial court reasonably could find that Michael at most paid $10,000 for the Hofmann's portion of the project.

c. The Garage

In awarding Michael an $8,600 allowance for rebuilding the garage in 2006 instead of the $21,500 he sought, the trial court stated the same concerns that were discussed earlier in the statement of decision were “present and applicable.” Michael contends the garage would have been unusable if he had not renovated it. But even if the renovation was necessary, Michael presented no documentary evidence to support his claimed amount and no evidence of the contributory value the renovation added to the Residence's overall value. Although Michael testified about the work performed on the garage and the cost as reflected in his spreadsheet, he testified he arrived at some of the numbers based on “prior knowledge and historical knowledge” of what he was spending. The trial court, however, did not find this testimony credible. We cannot say the trial court abused its discretion in discounting Michael's claim.

d. The Large Barn

Michael sought an $82,470 credit for converting the 1, 400 square foot barn into a shop for his hobby projects in 2006. In rejecting Michael's claimed amount as unsupported by the evidence, the trial court explained the only supporting documentation Michael provided was the spreadsheet purportedly itemizing the cost of the remodel and a $1,258 invoice for the barn door, which the spreadsheet listed as costing $2,260. The trial court noted that while Michael testified all the charges on the spreadsheet were associated with the barn remodel, under cross-examination, he admitted the spreadsheet included charges that had nothing to do with the project. Accordingly, the trial court did not find his testimony or the spreadsheet entries credible.

The trial court further found the amount Michael claimed to be troubling and lacking in credibility considering known, present-day values and construction costs. The trial court noted Michael's claimed credit amounted to a cost of $58. 90 per square foot. There was evidence the large barn offered no utility for a farming operation due to its configuration; Gatzman testified as part of the whole Property, the barn offered no contributory value to the Property's highest and best use; and even if it were a modern barn, Gatzman testified it would only contribute approximately $14,000 to $21,000 to the Property's overall value, which amounted to $10-$15 per square foot.

The trial court further noted there was evidence the Brichettos were able to construct two new, steel, insulated, free-span, equipment barns, complete with concrete flooring and roll-up doors, at a cost of $23.50 per square foot for one barn and $19 per square foot for the other. The trial court found John's testimony on this issue to be relevant and persuasive, and therefore determined an allowance of $19 per square foot, which totaled $26,600 (1, 400 square feet times $19), less depreciation, to be more appropriate and accurate than Michael's figures, and awarded a total allowance of $15,960.

Michael asserts the trial court made an unfair comparison to the Brichettos' barns because his project involved an historic barn while the Brichettos installed steel utility structures, and the Brichettos did not provide receipts to substantiate their cost, but only a proposal for some work that was contemplated on one barn. The trial court, however, was well within its discretion to consider and compare the replacement cost of a new barn in assessing the reasonableness of Michael's claim. The trial court found John's and Gatzman's testimony persuasive but did not find Michael's testimony or figures to be the same, which was within the trial court's purview. As a result, the trial court reduced the credit Michael was claiming. The trial court's well-reasoned determination is not arbitrary or capricious.

V. The Lot Line Adjustment

In ruling on Sharon and Gary's request for an order determining the ownership interests in the Property, the trial court found that under the circumstances, “the only equitable and reasonable result” was to order Michael to sign documents perfecting the lot line adjustment. The court explained the lot line adjustment (1) fulfilled the intent of both Erich and Lois related to their trusts, and (2) facilitated the agreements reached between Lois, Sharon and Gary on the one hand and the Brichettos on the other, and (3) as Gatzman and Michael testified, the lot line adjustment increases the Residence's value.

The trial court stated it had authority to order Michael to execute conforming deeds to perfect the lot line adjustment, as it had the power to: (1) order Michael to execute documents necessary to carry out the distribution of the Property from the EH Trust (Prob. Code, § 856); (2) issue an order regarding the trust's internal affairs and make an order with instructions to Michael as trustee (Prob. Code, § 17200, subds. (a) & (b)(6)); and (3) redress a breach of trust based on Michael's failure to make the trust property productive and to act in the beneficiaries' best interest (Prob. Code, §§ 16002, subd. (a), 16006, 17200, subd. (b)(7) & (12)). On the last point, the trial court explained the lot line adjustment increases the Residence's value as a separate, saleable parcel, which would make the EH Trust property more productive and benefit all beneficiaries. While Michael proferred several reasons for his objection to the lot line adjustment, the trial court did not find his testimony credible or persuasive.

On appeal, Michael contends the trial court abused its discretion by “forcing” him to sign the lot line adjustment, as it does not have the power to order a property owner to improve property before it is partitioned and sold. Michael asserts he is under no obligation to make improvements that maximize the Residence's value, either as a trustee or beneficial owner; therefore, the court is limited to selling the Property “as is.”

As Sharon and Gary assert, Michael's arguments miss the mark. The issue on appeal is whether the trial court had authority to order Michael to execute conforming deeds to effectuate the distribution of the Property to Sharon, Gary, and the Brichettos consistent with their relative ownership interests. Although the trial court cited numerous legal grounds supporting its authority to issue the order, Michael addressed only one in his opening brief, Probate Code section 856. Michael's “failure to address all bases for the court's ruling constitutes a waiver of … [his] appellate claim.” (JTH Tax, supra, 212 Cal.App.4th at p. 1237.)

In any event, in partition actions the trial court has the authority to “order that the property be divided among the parties in accordance with their interests in the property as determined in the interlocutory judgment, ” and order the property sold and the proceeds divided among the parties in accordance with those interests. (§§ 872.810, 872.820.) Moreover, the trial court may “prescribe such manner, terms, and conditions of sale not inconsistent with the provisions of this chapter as it deems proper for the particular property or sale.” (§ 873.610, subd. (a).) Absent prejudice, “the court shall order that distinct lots or parcels of real property be sold separately, ” and “may order that the real … property or any portion thereof be sold as a unit.” (§ 873.620.)

Here, in ordering partition by sale, the trial court found the Residence and Farmland could not be physically divided among the parties in accordance with their interests, and ordered the Property sold in two separate parcels-the Farmland and the Residence-as that was “the most fair and equitable approach under the circumstances, ” “likely to ensure the best sales price for the Residence, ” and would make the Property held by the EH Trust and LH Trust most productive. In ordering Michael to sign the documents necessary to perfect the lot line adjustment, the trial court was merely exercising its authority to order the property sold in accordance with the parties' interests in the Farmland and the Residence as separate parcels. The trial court was not, as Michael asserts, ordering an improvement to the Property or changing its character. Instead, it was ensuring the Property brought the highest possible sales price.

Contrary to Michael's assertion, the trial court was not forcing him to sign conforming deeds. As the Brichettos point out, a trial court has inherent authority to compel obedience to its judgments, orders, and processes. (§ 128, subd. (a)(4).) This includes the power to direct litigants to execute documents to give effect to its judgments. (See, e.g., Blueberry Properties, LLC v. Chow (2014) 230 Cal.App.4th 1017, 1021 [all documents necessary to complete property sale including escrow documents]; Rayan v. Dykeman (1990) 224 Cal.App.3d 1629, 1635 [transfer of title to real property].) If a recalcitrant party refuses to execute documents, the trial court has the power to appoint an elisor to execute the documents in his stead. (Blueberry Properties, LLC v. Chow, at p. 1021; Rayan v. Dykeman, at p. 1635.) Thus, while the trial court ordered Michael to sign conforming deeds, it could not force him to do so; if he refuses to execute documents necessary to perfect the lot line adjustment, the court may appoint an elisor to do so.

The trial court's directives to Michael were made in order to give effect to the partition judgment. In addition to its statutory authority to make these orders, the court had inherent authority to compel obedience of its judgment and issue orders to give them effect. Therefore, the trial court's order was within its express and inherent authority and not in excess of its jurisdiction.

Michael nevertheless argues he is incapable of following the trial court's order because as a beneficiary of the EH Trust, he disagrees with the order; therefore, signing the documents necessary to perfect the lot line adjustment would cause him to breach his fiduciary duty as trustee of the trust to deal impartially with all beneficiaries, including himself. We fail to see how this would breach his duty to deal impartially with the beneficiaries, since, as the trial court found, executing the lot line adjustment would make the EH Trust property more productive by increasing the Residence's value as a separate, saleable parcel, thereby benefiting all its beneficiaries, including Michael. This is not a situation where one beneficiary would be favored over the others. And Michael, as trustee of the EH Trust, has a duty to make the trust's property more productive. (Prob. Code, § 16007; City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 462 [holding a trustee's duties include “the duty to make trust property productive”].)

Michael's personal disagreement with the lot line adjustment does not provide him the ability to thwart the trial court's order and ignore what is in the best interest of the EH Trust and its beneficiaries. The trial court's order directing him to sign documents that will increase the value of the trust estate is not an abuse of discretion.

VI. The Motions for Attorney Fees

Michael challenges the attorney fees the trial court awarded to respondents. He argues Sharon and Gary are not entitled to recover attorney fees because they did not file the partition action. With respect to all respondents, Michael contends the trial court abused its discretion in its apportionment of fees and in finding the amount claimed was reasonable. Respondents claim Michael's failure to file a notice of appeal from the trial court's amended interlocutory judgment that reflected the attorney fees and costs awarded means his appeal of the attorney fees award must be dismissed. While we agree we lack jurisdiction to review the attorney fees awarded Sharon and Gary, and therefore dismiss that portion of the appeal, we conclude we have jurisdiction to review the order awarding attorney fees to the Brichettos.

A. Jurisdiction Over Appeal of Attorney Fee Awards

Appellate jurisdiction “ ‘is limited in scope to the notice of appeal and the judgment or order appealed from.' ” (Soldate v. Fidelity National Financial, Inc. (1998) 62 Cal.App.4th 1069, 1073.) “ ‘An appellate court has no jurisdiction to review an award of attorney fees made after entry of the judgment, unless the order is separately appealed.' ” (Colony Hill v. Ghamaty (2006) 143 Cal.App.4th 1156, 1171.) “ ‘When a party wishes to challenge both a final judgment and a postjudgment costs/attorney fee order, the normal procedure it to file two separate appeals: one from the final judgment, and a second from the postjudgment order.' ” (Torres v. City of San Diego (2007) 154 Cal.App.4th 214, 222.)

However, when a judgment awards attorney fees and costs to a prevailing party but leaves the amount of the award for later determination, a separate appeal from the postjudgment award is unnecessary as “the notice of appeal subsumes any later order setting the amounts of the award.” (Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 998 (Grant).) As this court explained in Grant, “requiring a separate appeal from such an order when the judgment expressly makes an award of costs and/or fees serves no apparent purpose. The notice of appeal itself challenges the appropriateness of awarding fees and costs to respondents. Thus, appellate jurisdiction exists and respondents are on notice that appellants are seeking review of the award.” (Id. at p. 997.) Moreover, “since the judgment expressly provides for an award of fees and costs, the issue is not a collateral matter unrelated to the judgment's validity and finality.” (Ibid.)

Here, the trial court entered its interlocutory judgment on July 22, 2019, which stated respondents were the prevailing parties and “shall recover costs from Michael in a sum to be determined by timely filed memoranda of costs”; and “[a]ny award of attorney fees shall be determined by separate motion.” The interlocutory judgment further provided it “shall be amended to include the amount of costs awarded” and “to include attorney fees if any are awarded.” In the statement of decision, which was incorporated into the judgment, the trial court found the partition claim “was valid and necessary for the common benefit of the Parties”; therefore, the Brichettos were “entitled to recover from Michael the costs of the partition, including attorney's fees, necessarily incurred by the Brichettos in prosecuting this action in accordance with section 874.010.”

Michael filed his notice of appeal on September 11, 2019, which states he is appealing the interlocutory judgment and statement of decision “and all other orders and rulings that are separately appealable or which may properly be considered in hearing and deciding such appeal, without limitation.” The Brichettos, and Sharon and Gary, filed their motions for attorney fees on September 17, 2019, and September 24, 2019, respectively. A hearing was held on the motions on January 28, 2020, and the trial court issued its written ruling partially granting the motions on March 10, 2020. The trial court issued an amended interlocutory judgment on July 13, 2020, which reflected the attorney fees and costs awarded respondents; Michael was served with notice of entry of the amended interlocutory judgment on July 22, 2020.

Michael did not separately appeal the amended judgment. Therefore, under the general rule, we would not have jurisdiction over the attorney fee awards. Michael, citing Grant, contends a separate appeal was not necessary because he appealed the interlocutory judgment which stated it would be amended to include any award of attorney fees.

The exception stated in Grant, however, does not apply to Sharon and Gary's attorney fee award. For Grant to apply, the trial court must have determined their entitlement to fees in the judgment. The trial court, however, did not do so. Instead, the entitlement to attorney fees was litigated in the attorney fees motion, when Sharon and Gary argued they were entitled to fees they incurred for the common benefit and Michael countered the trial court did not award them fees in the interlocutory judgment and there was no statutory basis for an attorney fee award, as Sharon and Gary did not file a partition action. The trial court resolved the issue when it found Sharon and Gary were entitled to attorney fees under the partition statutes, as they were parties to the partition action and incurred fees for the common benefit. Accordingly, Grant does not apply to the appeal from Sharon and Gary's fee award.

Michael asserts the notice of appeal encompasses the amended interlocutory judgment that included the attorney fee awards since it stated he was appealing “all other orders and rulings that are separately appealable.” “A notice of appeal filed after rendition of a judgment or statement of intended ruling but before entry of judgment may be treated as timely.” (Silver v. Pacific American Fish Co., Inc. (2010) 190 Cal.App.4th 688, 691; see Cal. Rules of Court, rule 8.104(d)(1), (2).) Michael, however, filed his notice of appeal before the attorney fees motions were even filed. Thus, the notice as it relates to the trial court's subsequent ruling on Sharon and Gary's attorney fees motion is untimely. (Silver, at p. 691 [dismissing appeal from order awarding attorney fees for lack of jurisdiction where notice of appeal specified appeal was being taken from the trial court's order on a motion for attorney fees, but the trial court had not yet ruled on the motion].)

Since the postjudgment order awarding Sharon and Gary's attorney fees was separately appealable, Michael was required to file a separate, timely notice of appeal. His failure to do so deprives this court of jurisdiction over his purported appeal from that order and requires dismissal of that portion of the appeal.

The same does not hold true for the Brichettos, however, since the trial court specifically found in the interlocutory judgment that they were entitled to recover their attorney fees, with the amount to be determined later. Thus, under Grant, we have jurisdiction to review both the Brichettos' entitlement to fees and the amount of the award. The Brichettos argue Grant is distinguishable, as the interlocutory judgment did not contain a blank for the clerk to fill in nunc pro tunc as in Grant. Even though the interlocutory judgment did not contain a blank, the interlocutory judgment left the determination of the amount of fees for later determination and the amended interlocutory judgment effectively filled in that amount. As the trial court stated in its ruling on the Brichettos' attorney fees motion, “the question presented in this motion is not whether [the Brichettos] are entitled to attorney's fees, it is what amount of attorney's fees the [Brichettos] are entitled to.” (Emphasis omitted.)

The Brichettos also assert Grant is inapposite because an award of attorney fees was not a foregone conclusion, since the trial court could have chosen not to award the Brichettos any part of their fees. The Brichettos argue the trial court's discretion renders Grant inapplicable, citing Fish v. Guevara (1993) 12 Cal.App.4th 142 (Fish).

In Fish, the appellate court held a discretionary postjudgment award of expert witness fees pursuant to section 998 must be separately appealed. (Fish, supra, 12 Cal.App.4th at p. 147.) Unlike the appeal from the award of attorney fees in Grant, in which the judgment determined the prevailing party's right to costs and fees, making the award's propriety incidental to the judgment, an award of expert fees pursuant to section 998 is not merely incidental to the judgment, but rather is a postjudgment discretionary decision that must be separately litigated. (Fish, at pp. 147‒148.) “Prevailing parties do not recover their expert witness fees as a matter of right. When the opposing party has rejected a settlement offer and fails to obtain a more favorable judgment, the trial court may, in its discretion, make an award of expert witness fees. (§ 998.) Thus, even a losing defendant may recover its expert witness fees if the plaintiff obtains a judgment which is less favorable than defendant's rejected offer to compromise. [Citations.] Because expert witness fees are not incidental to the judgment, the propriety of a postjudgment award of expert witness fees cannot be reviewed on an appeal from the judgment.” (Id. at p. 148.)

Here, unlike the expert witness fees in Fish, the Brichettos' award of attorney fees incurred for the common benefit was determined by the judgment since the trial court specifically found they were entitled to fees, with only the amount left for later determination. (See DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 44 [issue is “whether the entitlement to fees was adjudicated by the original judgment, leaving only the issue of amount for further adjudication”]; cf. Gouskos v. Aptos Village Garage, Inc. (2001) 94 Cal.App.4th 754, 763‒765 [judgment that did not award attorney fees, but rather directed defendants to submit written request for taxing costs and attorney fees, could not be construed as an award of fees where the defendants were not entitled to attorney fees as a matter of right; therefore, failure to appeal postjudgment order awarding fees deprived appellate court of jurisdiction to review the award].) Accordingly, we have jurisdiction to review the Brichettos' attorney fee award.

B. The Brichettos' Attorney Fee Award

In partition actions, the court is required to “apportion the costs of partition among the parties in proportion to their interests or to make such other apportionment as may be equitable.” (§ 874.040.)²⁸ The costs of partition include “[r]easonable attorney's fees incurred or paid by a party for the common benefit, ” as well as “reasonable expenses, including attorney's fees, necessarily incurred by a party for the common benefit in prosecuting or defending other actions or other proceedings for the protection, confirmation, or perfection of title ….” (§§ 874.010, subd. (a), 874.020.) The court may order the costs of partition paid prior to entry of judgment. (§ 874.110, subd. (a).)

28 Section 874.040 provides in its entirety: “Except as otherwise provided in this article, the court shall apportion the costs of partition among the parties in proportion to their interests or make such other apportionment as may be equitable.”

Section 874.040 gives courts the discretion to apportion attorney fees incurred for the common benefit based on either the parties' respective interests in the property or equitable considerations. (Lin, supra, 203 Cal.App.4th at p. 1025.) “[T]he ‘common benefit' in a partition action is the proper distribution of the ‘ “respective shares and interests in said property by the ultimate judgment of the court.”' ” (Orien v. Lutz (2017) 16 Cal.App.5th 957, 967 (Orien).)

While the litigation of controversies to correctly determine the parties' shares and interests can be for the common benefit and does not bar the allocation of fees to a defendant who contests a partition action, “defendants are nonetheless protected from plaintiffs who bring unfounded claims or otherwise drive up costs unnecessarily, just as plaintiffs are protected from unscrupulous defendants. Sections 874.010 and 874.040 provide numerous avenues for trial courts to adjust the allocation of costs if, for example, fees are incurred for purposes that unduly exacerbate the dispute or do not provide a common benefit to all parties. For instance, under section 874.010 a court may find that fees incurred ‘advocat[ing] a position of limited merit' are not for the common benefit and should be borne by the party ‘pressing' such ‘spurious matters.' (Forrest [v. Elam (1979)] 88 Cal.App.3d [164, ] 174; id. at p. 173 [proper to reduce fees to plaintiff who presented ‘a time consuming and meritless contention that he should receive some amount greater than that to which he [was] legally entitled'].) Or, a court may achieve a similar result through an exercise of its equitable discretion under section 874.040 and require a party to bear its own fees. (See Lin, supra, 203 Cal.App.4th at pp. 1025-1026 [equitable for plaintiff in partition action to bear her own attorney fees when she sought to prevent her siblings from obtaining interests to which they were entitled, [she] claimed an interest to which she ‘was well aware that she was not entitled,' and created unnecessary procedural hurdles].)” (Orien, supra, 16 Cal.App.5th at p. 968, fn. omitted.)²⁹

29 As the court noted in Orien, “[i]n so holding, Lin disagreed with Finney [v. Gomez (2003) 111 Cal.App.4th 527]. Finney relied on the Law Revision Commission comments to section 874.040 to conclude that a court's power to apportion costs equitably was limited, as in the former section 796, to cases in which the litigation arose only among some of the parties to a partition action. (Finney, supra, 111 Cal.App.4th at pp. 545‒546.) Lin rejected this reasoning as having ‘ “exalted the Comments over the statutory language, ”' which clearly omits the limited exception from former section 796. (Lin, supra, 203 Cal.App.4th at p. 1025.)” (Orien, supra, 16 Cal.App.5th at p. 968, fn. 12.)

In addition to allocating attorney fees among the parties, “the trial court has broad authority to determine the amount of a reasonable fee.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 (PLCM Group).) “This determination is necessarily ad hoc and must be resolved on the particular circumstances of each case.” (Meister v. Regents of University of California (1998) 67 Cal.App.4th 437, 452 (Meister).) “[T]he fee setting inquiry in California ordinarily begins with the ‘lodestar,' i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate, ” which “may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.” (PLCM Group, supra, 22 Cal.4th at p. 1095.) Those factors include “ ‘the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.' ” (Id. at p. 1096; see, e.g., Contractors Labor Pool, Inc. v. Westway Contractors, Inc. (1997) 53 Cal.App.4th 152, 168.) The lodestar is the correct method for calculating an award of statutory fees, unless the authorizing statute provides for a different approach. (Meister, supra, 67 Cal.App.4th at pp. 448‒449.)

“When a trial court makes a ruling based upon equitable considerations, the abuse of discretion standard applies on review of that ruling. [Citation.] In other words, the ruling must stand unless [appellants] establish that the trial court exceeded the bounds of reason, resulting in a miscarriage of justice.” (Lin, supra, 203 Cal.App.4th at p. 1025; see Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 712 [a trial court's “application of the law to the facts is reversible only if arbitrary and capricious”].) The ruling is presumed correct, and it is Michael's burden to affirmatively demonstrate error with legal analysis and citations to evidence in the record supporting any factual assertions. (Equilon Enterprises LLC v. Board of Equalization (2010) 189 Cal.App.4th 865, 881; Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 685.)

1. The Amount of Fees Awarded

Michael asserts the trial court erred because it did not perform a lodestar analysis to fix the amount of reasonable attorney fees before apportioning them. When ruling on a request for statutory fees, Michael argues, a trial court must carefully review attorney documentation of hours expended and consider various factors, including the novelty and difficulty of the issues, and the skill displayed in presenting them. He further contends the record fails to demonstrate the trial court's consideration of those factors; therefore, we should remand the matter and “direct the trial court to justify the reasonable amount of attorney fees awarded.”

Michael's contentions lack merit. In the first place, the court was not required to explain its determination in this case. “The trial court is not obliged to make formal findings in the absence of a request.” (Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1807.) Furthermore, the record shows the trial court properly weighed the requested fees. In its written ruling, the trial court addressed Michael's argument the Brichettos' fees were unreasonable. The trial court noted Michael did not attack as unreasonable any specific amount of the Brichettos' fees, but rather generally complained there were manifest examples of padding, such as four attorneys who billed for consulting with each other and with Sharon and Gary's counsel, which led to duplication of tasks and an artificial inflation of hours. The trial court found there was no factual support for these claims, as the Brichettos' “detailed billing records support the conclusion that their fees were reasonably incurred.” The trial court declined to reduce the requested fees, as it did not appear the Brichettos' fees were either unreasonable or unnecessary.

The fee award was based on the hours the Brichettos' attorneys expended on the case multiplied by their hourly rates, which were detailed in a report of the billing entries attached to the declaration of one of their attorneys. In other words, this was a straightforward lodestar calculation. (See PLCM Group, supra, 22 Cal.4th at p. 1095.) In cases such as this, the lodestar is the correct method for calculating statutory fees. (Meister, supra, 67 Cal.App.4th at pp. 448‒449.) “To withstand scrutiny on appeal when this method is used, the record need only show the court awarded fees using that approach.” (Dunk v. Ford Motor Co., supra, 48 Cal.App.4th at p. 1810.) The trial court “may” adjust the lodestar figure “based on consideration of factors specific to the case….” (PLCM Group, at p. 1095, italics added.) But it is not required to do so. “ ‘The “experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong” '-meaning that it abused its discretion.” (Ibid.)

Here, as the record affirmatively demonstrates, the trial court had evidence on which to calculate the lodestar fee, and it considered that evidence in finding the fees were reasonably incurred and declining to reduce them. While Michael repeats on appeal the complaints he made below about the padding of billings and the attorneys' inefficiency, he did not include in the appellate record the evidence the trial court relied on in making its decision, namely, the detailed billing records.

In conducting our appellate review, we presume the trial court's order is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Thus, a party challenging a judgment or appealable order “has the burden of showing reversible error by an adequate record.” (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) “ ‘A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.' ” (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416; see Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187; Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.) Thus, where the appellant fails to provide an adequate record as to any issue the appellant has raised on appeal, the issue must be resolved against the appellant. (Maria P. v. Riles (1987) 43 Cal.3d 12811295‒1296.)

Without the detailed billing records, we cannot review Michael's claim that the trial court failed to consider instances of padding of time or inefficiencies. Instead, we must presume the trial court's findings that there was no factual support for Michael's claims and the detailed billing records showed the fees were reasonably incurred are correct. Based on the record before us, it appears the trial court had evidence of the time expended by the Brichettos' attorneys and their hourly rates, as well as the nature of the work performed. In addition to this documentation, “the superior court was familiar with the quality of the services performed and the amount of time devoted to the case. The award was not clearly wrong; the superior court did not abuse its discretion.” (PLCM Group, supra, 22 Cal.4th at p. 1096.)

2. The Apportionment of Fees

The Brichettos asked the trial court to apportion all their fees to Michael because of his “unrelenting and unfounded challenge to title and ownership” of the Property. Michael argued the Brichettos' fees should be apportioned by property interest; therefore, he should be responsible only for 8.3 percent of their fees. The trial court, however, disagreed with both parties' positions. It found it would not be equitable to apportion only 8.3 percent of the Brichettos' fees to Michael, as a substantial portion of the litigation was due to Michael's continued advocacy for a meritless legal position “after a ‘reasonable' amount of time and treasure had been invested in this matter by all sides.” The trial court further found because the Brichettos purchased the Farmland from Sharon and Gary without an agreement from Michael, a partition action was likely if Michael refused to sell his share of the Farmland. Therefore, considering the equities, the trial court apportioned 50 percent of the Brichettos' fees to Michael-a total of $191,031.050.

Since section 874.040 allows the trial court to “make such other apportionment as may be equitable, ” the trial court did not err when it considered the equities and apportioned half of the Brichettos' attorney fees to Michael. As the Brichettos point out, the appellate record is replete with examples of Michael unnecessarily prolonging the partition action and inflating fees for all parties. Michael initially brought a cross-complaint asserting 12 causes of action against the Brichettos, which the Brichettos largely disposed of on demurrer. Despite that ruling, Michael continued to advance time-barred claims. The Brichettos successfully demurred to Michael's first amended cross- complaint, which asserted time-barred claims. On the eve of trial, Michael filed another cross-complaint against the Brichettos, causing yet another round of motion practice. After the trial court sustained the Brichettos' demurrer to Michael's constructive trust claim, finding it was a creative attempt to circumvent the trial court's prior rulings preventing Michael's time-barred attacks on the 1994 Transaction, Michael filed an untimely motion for reconsideration. After that motion was denied, Michael continued to assert the same claims at trial, at all times disputing the Brichettos' ownership of the Farmland. The Brichettos were forced to oppose Michael's meritless claims time and again.

Given these facts, we cannot say the trial court exceeded the bounds of reason in apportioning half of the Brichettos' fees to Michael. The record supports the trial court's finding Michael continued to advocate for a meritless legal position after a reasonable amount of time, “pursuing meritless or near meritless litigation, ” despite knowing from the trial court's “rulings on demurrer that his claims arising out of the 1994 transaction were barred by the statute of limitations.” A trial court is permitted to find that fees incurred for “advocat[ing] a position of limited merit” are not for “the common benefit” and should be borne by the party “pressing” such “spurious matters.” (Forrest v. Elam, supra, 88 Cal.App.3d at pp. 173‒174. ) An inverse scenario occurred here: the Brichettos incurred attorney fees to defend against challenges of limited merit. Such costs should not be charged to them, but rather to Michael as the party “pressing” such “spurious matters.” (Id. at p. 173.) There was no abuse of discretion.

DISPOSITION

The interlocutory judgment is affirmed in part and reversed in part. Paragraph 3(e)(viii)(3) of the interlocutory judgment, which states the Brichettos shall receive a credit of “$684,245.40 for their improvements to the Real Property” is reversed. The matter is remanded to the trial court to amend paragraph 3(e)(viii)(3) to state the Brichettos shall receive a credit of “$491,000 for their improvements to the Real Property.” In all other respects, the interlocutory judgment is affirmed. The parties shall bear their own costs on appeal.

WE CONCUR: LEVY, Acting P.J.MEEHAN, J.