Judge: Loren G. Freestone, Case: 37-2021-00035420-CU-OR-CTL, Date: 2023-12-21 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 20, 2023

12/21/2023  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  Other Real Property Motion Hearing (Civil) 37-2021-00035420-CU-OR-CTL ROSE VS STULTS [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Plaintiff Phillip Rose's motion for attorney fees is GRANTED IN PART and DENIED IN PART.

Defendant Racine Poole's motion to reform Rose's quitclaim deed and to award expenses prior to the division of the sale proceeds is GRANTED IN PART and DENIED IN PART.

Fees/Costs A court 'shall apportion the costs of partition among the parties in proportion to their interests or make such other apportionment as may be equitable.' (Code Civ. Proc., § 874.040.) These costs include 'reasonable attorney's fees incurred or paid by a party for the common benefit' and any other 'expenses determined by the court to have been incurred or paid for the common benefit.' (Id. at § 874.010, sub.

(a), subd. (e).) The allowance is 'made to the parties, and not directly to the attorney.' (Regalado v. Regalado (1961) 198 Cal.App.2d 549, 555.) The '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.) The plaintiff's fees can be for the common benefit, even though the defendant does not want to partition the property. (Id. at p. 966.) The defendant's fees can also be for the common benefit, even though they were incurred to contest certain issues. (Id. at p. 967.) The default allocation may be adjusted when, for example, the fees were incurred pressing spurious matters. (Ibid.) Pre-Stipulation Attorney Fees The parties stipulated to a partition on September 9, 2023. Both parties seek fees incurred up to that date.

Rose argues that he should be awarded 100% of his pre-stipulation fees, but there is no evidence that either Stults or Racine acted unreasonably prior to the stipulation. Poole argues that Rose should not be awarded any attorney fees because she did not want to partition the property, but that does not change the fact the fees were not incurred for the common benefit. Under the circumstances, the court orders that Rose's fees be apportioned according to the parties' respective interests. Although Rose's memorandum indicates he incurred $15,532 in pre-stipulation fees, Exhibit D to the supporting declaration ('A true and correct copy of the billing entries from this matter through September 9, 2023') Calendar No.: Event ID:  TENTATIVE RULINGS

3044483  35 CASE NUMBER: CASE TITLE:  ROSE VS STULTS [IMAGED]  37-2021-00035420-CU-OR-CTL indicates that only $3,002 were incurred during that timeframe. That amount is reasonable.

Poole argues that she and Stults should be awarded 100% of their pre-stipulation fees, but there is no evidence that Rose acted unreasonably prior to the stipulation. Fees incurred by the defense to work toward the stipulated partition were for the common benefit. Under the circumstances, the court orders that Defendants' fees be apportioned according to the parties' respective interests. Although Poole claims a $7,500 retainer was paid, the evidence indicates that only $1,337.50 was debited from that amount for services rendered. That amount is reasonable.

Rose has a 50% interest in the property, whereas Poole and Stults each have a 25% interest in the property. Rose is therefore entitled to a credit from both Poole and Stults in the amount of $1,501 for his fees, whereas Poole and Stults are entitled to a credit from Rose in the amount of $668.75 for their fees.

The net result is an attorney fee credit to Rose in the amount of $832.25.

Post-Stipulation Attorney Fees Disputes arose after the parties stipulated to partition the property. Rose seeks $27,224.03 in fees incurred after September 9, 2022 related to those disputes.

Rose argues that he is entitled to post-stipulation fees pursuant to Civil Code section 1717. That section enables a prevailing party to claim fees in 'any action on a contract, where the contract specifically provides that attorneys' fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party.' (Civ. Code, § 1717, subd. (a).) Rose relies on the September 9, 2022 stipulation. Even assuming that the stipulation was in some sense a contract, nothing therein provides for attorneys' fees and costs. As such, Rose has not established that he is entitled to his post-stipulation fees.

Poole's Personal Time and Costs Poole claims $20,127.90 for her own personal time she spent related to this case, as well as some costs she incurred (e.g., mileage, parking, and prints from the Assessor's Office). As to the costs, Poole has not demonstrated they were incurred for the common benefit. As to the time, Poole cannot recover for work performed in pro per. (See Muller v. Martin (1953) 116 Cal.App.2d 431, 436–437 ['a party who represents himself and performs legal services that are for the common benefit of the cotenants is not entitled to contribution for such services from the other parties to the action'].) Poole also claims that Rose must pay $19,977.78 to reimburse her and Stults' closing costs. The parties already stipulated that 'closing costs shall be split among the parties in proportion to their interests.' (ROA #30.) Appraiser Rose claims he is entitled to $250 for paying Defendants' ½ share of the property appraisal fee.

The parties already stipulated that 'appraisals . . . shall be split among the parties in proportion to their interests.' (ROA #30.) Rose is therefore entitled to a $250 credit for paying the unpaid invoice that should have been paid by Defendants.

The Quitclaim Deed Poole argues that the December 1991 quitclaim should be reformed and made 'null and void' because Rose lacks a legitimate interest in the property. Poole further argues that Rose's interests should be apportioned between her and Stults.

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3044483  35 CASE NUMBER: CASE TITLE:  ROSE VS STULTS [IMAGED]  37-2021-00035420-CU-OR-CTL Poole already stipulated-twice-that Rose is a co-owner with a 50% interest in the property and that the property would be partitioned in accordance with that interest. (ROA #30, 101–102.) Those stipulations are dispositive as to this issue.

Accounting Poole seeks to be reimbursed for various amounts off the top of the sale proceeds.

'Every partition action includes a final accounting according to the principles of equity for both charges and credits upon each co-tenant's interest. Credits include expenditures in excess of the co-tenant's fractional share for necessary repairs, improvements that enhance the value of the property, taxes, payments of principal and interest on mortgages, and other liens, insurance for the common benefit, and protection and preservation of title.' (Wallace v. Daley (1990) 220 Cal.App.3d 1028, 1035–1036; see also Code Civ. Proc., § 873.220.) 'When a cotenant makes advances from his own pocket to preserve the common estate, his investment in the property increases by the entire amount advanced.' (Southern Adjustment Bureau, Inc. v. Nelson (1964) 230 Cal.App.2d 539, 541.) As such, when the property is sole, the advancing cotenant 'is entitled to be reimbursed his entire advancement before the balance is equally divided.' (Ibid. [tenant who pays $2,000 for mortgage, taxes, and insurance is entitled to a $2,000 credit before the balance is divided].) Poole claims a total of $49,699.17 in maintenance costs. Rose argues the costs are not substantiated, but did not produce any evidence contradicting the claimed expenditures. Some claimed costs may lack supporting documentary evidence, but Poole signed a declaration under penalty of perjury certifying that an attached itemized list of costs was true and correct. Her figures are deemed credible. (See Hunter v. Schultz (1966) 240 Cal.App.2d 24, 33–34 [trial court can choose to accept or reject such evidence].) Upon review, Poole is entitled to the following costs: (1) roof – 2005 - $6,064; (2) sewer repair to street – 2011 - $5,000; (3) replace water heater – 2012 - $700; (4) water damage to living room walls – 2015 - $800; (5) living room roof repair – 2015 - $500; (6) water heater repair – 2017 - $300; and (7) sewer pipe repair – 2023 - $1,100. Poole is not entitled to the other costs are they do not appear to have been for necessary repairs for the common benefit or otherwise constituted improvements that meaningfully enhanced the final sale price. (See Gerontopoulos v. Gerontopoulos (1937) 20 Cal.App.2d 261, 265 [no contribution for 'ordinary types of repairs and improvements' that are primarily for the benefit of the other tenant in sole possession]; Regalado, supra, 198 Cal.App.2d at p. 552 [although party testified he had paid for repairs, there was 'nothing in the record to indicate they were necessary to protect the interest of plaintiff'].) A maintenance credit is therefore awarded to Poole in the amount of $14,464.

Poole claims a total of $64,638.72 in mortgage payments and interest from 1991 to 2006 (Poole also claims an additional $902.06 based on two mortgage interest statements, but there is no indication this amount was not already encompassed within the mortgage payments that were comprised of both principal and interest). Rose argues that Poole is not entitled to any contribution for the mortgage because the payments were made through checks drawn from her late mother's bank account, before Poole acquired an interest in the property in 2008. However, to the extent Poole's mother was entitled to a credit, her successors-in-interest are also entitled to that credit. (Wallace, supra, 220 Cal.App.3d at pp. 1036–1038 [daughter who acquired interest in the property from her father was entitled to credits for his contributions].) A mortgage credit is therefore awarded to Poole and Stults in the amount of $64,638.72 (32,319.36 each).

Poole claims a total of $27,087.62 in property tax payments. However, Poole only submitted evidence accounting for $9,143.62 in payments. Rose does not dispute that Poole is entitled to a credit for the property taxes up to 2022. However, Rose argues that Poole should not be entitled to a credit for the 2022–2023 taxes ($1,233.46) because despite stipulating to sell the property, she effectively ousted Rose by maintaining exclusive control over the property and impeding the sale, thereby entitling him to a $2,000/month credit for that final year. There is no evidence that the fair rental value of the home is Calendar No.: Event ID:  TENTATIVE RULINGS

3044483  35 CASE NUMBER: CASE TITLE:  ROSE VS STULTS [IMAGED]  37-2021-00035420-CU-OR-CTL $2,000/month. However, it is beyond reasonable dispute that the fair rental value of the home was at least $102.79/month (1/12 the 2022-2023 taxes). Rose is therefore entitled to offset that final year of property taxes. (See Hunter v. Schultz (1966) 240 Cal.App.2d 24, 31–32.) A property tax credit is therefore awarded to Poole in the amount of $7,910.16.

Poole claims a total of $2,473.68 for homeowners' insurance payments. However, Poole only submitted evidence accounting for $1,410 in payments. Rose does not dispute that Poole is entitle to a credit for the insurance. An insurance credit is therefore awarded to Poole in the amount of $1,410.

Poole claims $300,000 for the care of her mother and funeral costs. While the cost of a caretaker for the property may be recoverable in a partition action (see Scott v. Staggs (1954) 129 Cal.App.2d 54, 58), the cost of a caretaker for the property owner is not.

Poole claims she is entitled to $40,000 for purportedly securing a higher sale price for the property.

However, Rose submits ample evidence that Poole's conduct may have actually frustrated efforts to show and sell the property.

Poole claims $23,240.69 for interest at 10% on all of the other amounts she claimed. She is not entitled to any interest as there is no evidence Poole ever previously demanded contribution for any payments she made. (Willmon v. Koyer (1914) 168 Cal. 369, 374 ['As a general rule in cotenancy accounting, a tenant making payments is only entitled to interest after a demand on his cotenant for contribution'].) Poole claims $9,458.96 for inflation at 3.7% on all of the other amounts she has claimed. There is no explanation or support for the claimed inflation rate, nor is it even necessary to account for inflation as the sale proceeds are already sitting in an escrow account waiting to be disbursed following the ruling on this motion. (See Lewis v. Ukran (2019) 36 Cal.App.5th 886, 896, fn. 6 [the party 'seeking to increase an award of future damages because of inflation bears the burden of proving a reasonable inflation rate'].) Conclusion For the reasons set forth above, the following credits shall be issued to the parties from the sale proceeds: Rose - $1,082.25 Poole - $56,103.52 Stults - $32,319.36 The balance of the proceeds shall be divided in accordance with the parties' respective interests (Rose 50%, Poole and Stults each 25%) Calendar No.: Event ID:  TENTATIVE RULINGS

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