Aguilera v. Lyons CA3 ( 2015 )

Filed 10/7/15 Aguilera v. Lyons CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Plumas)
----
ALFREDO M. AGUILERA et al., C071061
Plaintiffs and Appellants,
(Super. Ct. No. 22149)
v.
JOAN LYONS et al.,
Defendants and Respondents,
DAVID NORTON, as Referee, etc.
Respondent.
Plaintiffs Alfredo M. Aguilera and Alicia M. Aguilera appeal from court orders
entered after interlocutory judgment in their action for partition of real property (Code
Civ. Proc., § 872.010 et seq.1) against co-owners, including respondents Joseph A.
Kitterman and Kathleen C. Kitterman, as Trustees of the Kitterman Family Trust U.D.T.
dated April 14, 1995 (Kittermans).2 (§ 904.1, subd. (a)(2), (9).)
1 Undesignated statutory references are to the Code of Civil Procedure.
2 The Kittermans are the only named defendants who appeared in the action. Other
named defendants are Joan Lyons, Diane V. Friedlander, John D. Friedlander, Richard
1
Plaintiffs mainly challenge the trial court’s orders confirming sale of the property
and denying plaintiffs’ motion to remove the referee, respondent David C. Norton.
Plaintiffs contend: (1) a judge who recused herself improperly signed orders after the
recusal; (2) the referee improperly used their lawyer; (3) the court erroneously confused
private sale and public auction; (4) the referee failed to comply with statutory procedures;
(5) there was a failure to market the property and a grossly inadequate sales price; and (6)
the court should have granted plaintiffs’ motion for relief under section 473 to submit a
new appraisal.
The Kittermans filed in this court a motion for sanctions against plaintiffs and
plaintiffs’ attorney, Andrew W. Shalaby, for a frivolous appeal. (Cal. Rules of Court,
rule 8.276.)
We affirm the court’s orders, but deny the motion for sanctions.
FACTUAL AND PROCEDURAL BACKGROUND
On April 27, 2001, plaintiffs filed a complaint for partition and quiet title
(§§ 872.230, 760.010 et seq.), alleging they owned 88/144 share of unimproved real
property (the La Porte property) on or near the south shore of Little Grass Valley Lake in
Plumas County, and defendants owned the rest in varying shares. The property is
bisected by a county road and bears two AP (assessor parcel) numbers. The “Waterfront
Parcel” is ten acres, zoned S-3 (suburban, three-acre minimum), with about 2,000 feet of
lake frontage, and the “Hillside Parcel” is 76.60 acres, zoned GF (general forest, 80-acre
minimum) located across the county road, to the south of the Waterfront Parcel.
M. Friedlander, Suzanne M. Studen, Lawrence M. McCune, Sally B. McCune, Howard
Palmer, Grace Palmer, Howard Palmer, Jr., Vicky Palmer, Garth Donoviel, Penny
Donoviel, Andrew Jennings, Susan Jennings, David Dolan, Mary Aileen Pyke, James
Kitterman, Janet Yonash, Shirley (Calpestri) Craig (all living); and Jacketta Stinger, Jack
Donoviel, John Dyer, Dorothy Dyer, William Gould, Mary Pyke, Anthony Kitterman,
and John Bills, believed to be deceased, and their successors.
2
After a bench trial in June 2003, the court on August 21, 2003, issued an
interlocutory judgment determining that plaintiffs are entitled to partition the property,
and it was necessary for the court to appoint a referee to investigate and determine the
possibility and economic feasibility of a division of the property, either by court order or
otherwise, such that plaintiffs might be awarded a portion of the property, with the
remainder sold and distributed among defendants. Plaintiffs were to advance any costs
that could not be deferred. The court appointed David C. Norton as referee. The trial
court retained jurisdiction over the terms and manner of any sale and disposition of the
property.
The initial plan was to subdivide and sell the property, with plaintiffs undertaking
the cost of subdivision.3 Plaintiffs abandoned their subdivision efforts, because of cost
and other difficulties, and they so informed their attorney, Peter Hentschel, in an email
dated December 27, 2010.4 On February 7, 2011, plaintiffs sent Mr. Hentschel a letter
directing him and the referee to stop all work on the “division and/or sale of the LaPorte
property.” Plaintiffs further stated that “[a]ny work that you or David Norton may do
after the date of our last email ordering a halt to all such work, dated December 26, 2010
[sic], in which we originally directed all work to be stopped, shall not to [sic] be done on
our behalf and we will not be compensating you or David Norton for any such work in
any way.”
3 A 2005 appraisal, submitted with plaintiffs’ reply to their motion to set aside the sale,
estimated a value of $1,090,000 to $1,350,000 but assumed the property would be
subdivided.
4 The December 27, 2010, email from Mrs. Aguilera to Mr. Hentschel reads in pertinent
part: “After reviewing the last description of your billing dated 12-15-10, we feel we
must stop all work being done on the LaPorte project. At this time we are in no position
to continue to pay for a subdivision map which appears that it is going to take another
couple of years to complete.”
3
On March 3, 2011, Mr. Hentschel sent plaintiffs an email in which he indicated
there had been additional discussion between plaintiffs and him about the prospect of
selling the property and that payment of his fees and that of Norton’s would be deferred
until after the sale. He asked that plaintiffs let him know how they wanted him to
proceed.5
On March 9, 2011, plaintiffs sent Mr. Hentschel an email which indicates they had
authorized the effort to sell the property to continue, but that the sale would be contingent
on them agreeing on the sale price and the terms of the sale.6
On March 10, 2011, Mr. Hentschel responded in an email, informing plaintiffs
confirmation of the sale would be up to the court. He noted that plaintiffs had inquired
whether they could simply stop the whole proceeding until the market recovers, but said
with the judgment entered, he doubted whether dismissal was an option, and in any event
he would not advise dismissal because it had cost around $8,000-$10,000 to determine,
find, and serve everyone with an ownership interest, and they would have to start all over
again if they could dismiss the case now and refile it later. He also noted that, although
he was unsure, plaintiffs probably could not dismiss the case on their own motion at this
5 The March 3, 2011, email from Mr. Hentschel to Mrs. Aguilera reads in pertinent part:
“It was good to talk to you today. You asked me to confirm that Dave Norton and I
would both be willing to defer payment of fees for any further time expended in
exploring a sale of the property and would look to the sales proceeds for payment. I can
confirm that I have talked to David Norton about that and both of us are willing to do so.
As a practical matter, as we discussed this morning, it isn’t going cost a great deal more
to find out what kind of offers we might get. Please let me know as soon as possible how
you want to proceed.”
6 The March 9, 2011, email from Mrs. Aguilera to Mr. Hentschel reads in pertinent part:
“We would like to set a limit on any fees you and David Norton would be able to charge
us. And of course any sale would have to be contingent on us agreeing to all monetary
terms and any other terms of the sale.”
4
stage.7 Despite the March 2011 communications exchanged between Mr. Hentschel and
plaintiffs indicating the sale was going forward, Mrs. Aguilera later stated in a
declaration dated April 13, 2012, that Mr. Hentschel “secretly proceeded to obtain” the
7 The entire text of Mr. Hentschel’s March 10, 2011, email to Mrs. Aguilera reads:
“Alicia: [¶] Thank you for the note. Under the present court order, Dave Norton was
authorized to pursue subdivision of the property subject to your agreement to pay the
costs. As a consequence, with regard to the subdivision process, you had control over
Dave’s expenditures because you had agreed to be responsible for them. Now that the
subdivision has been stopped, however, the court will probably want to revert to the only
other legally recognized method of partitioning the property, which is to sell it and divide
up the proceeds. In that process Dave Norton would be serving as the court’s referee, and
his fees will be determined by the court, not by us. However, those fees are not your
personal responsibility. They are satisfied by a lien against the property, not a personal
obligation of yours. [¶] In our last conversation you asked if there was a way to simply
stop this whole proceeding until the market recovers. Unfortunately, the answer probably
is ‘no[.’] The court is under an obligation to get this matter resolved, and it isn’t going
to agree to table the whole situation until things improve, which could be years. I had
indicated to you that you might be able to dismiss the case, but I’m not at all sure if that
option is available to you. Once a judgment has been entered, as is true here, your right
to unilaterally dismiss the case is limited. I haven’t done any research on that question
because I don’t want to incur more fees, but it seems likely to me that the court is not
going to permit a dismissal because the court has obligations to all the other owners to get
the property sold and the proceeds divided and paid. My suggestion was and is to go
forward with the process to the point of soliciting offers for the property. If you don’t
like the offers we can ask the court to reject them. If the court refuses, we are then back
to the question of whether you can dismiss without the court’s permission. In other
words, we won’t be in any worse situation than we are right now, and we will have the
additional knowledge of what the market indicates the property is worth. [¶] As we
discussed, there is another reason why I am resistant to dismissing the case, even if we
have the right to do so. It cost somewhere around $8,000-$10,000 to determine all of the
owners, establish their ownership interests, find them, serve them, and bring them under
the court’s jurisdiction. If we dismiss the case, we would have to start all over at some
future time, except that the problem of finding and serving everyone would probably be
considerably more complicated as older owners pass away. [¶] All of this is a long
winded way of explaining that we have limited control over Dave Norton’s future
charges, since they are subject to the discretion of the court, not us, and also that we may
not have an automatic ‘veto power’ over any offers that are made. We may or may not
have the ability to dismiss the case over the court’s objection.”
5
trial court’s order to sell the property after the February 2, 2011, letter in which they
asked him to stop the sale process.
In April 2011, Mr. Hentschel copied plaintiffs on his email correspondence to the
Kittermans about an amended judgment to change from “subdivision to sale of the entire
property as one parcel.” The record reflects no written response from plaintiffs.
On May 4, 2011, the trial court issued an amended interlocutory judgment, which
amended the 2003 interlocutory judgment by directing the referee to proceed with
partition by sale of the entire property, rather than partly by division and partly by sale.
The amended judgment signed by Judge Hilde said, “The Property shall be partitioned by
sale, and the Court finds and determines that a private sale, rather than a public auction, is
more beneficial to the parties.” The amended judgment appointed David Norton as
referee to sell the property in accordance with section 873.510 et seq. The trial court
again retained jurisdiction.
On May 23, 2011, the trial court issued a second amended interlocutory judgment,
which repeated the substance of the amended interlocutory judgment but included a legal
description of the property and was signed by assigned Judge John Darlington.8
The referee published a notice of sale, stating in part, “that on June 1, 2011, or as
soon thereafter as one or more bona fide and acceptable offer(s) are made, [the referee]
. . . will sell at private sale [the subject property]. The referee shall entertain offers for
only the total property. The sale shall be for cash, and shall be subject to confirmation of
the [trial court] . . . .” It was the referee’s decision to demand cash.
8 We recite the foregoing facts to explain the background. To the extent plaintiffs are
unhappy with anything that happened in connection with the three interlocutory
judgments, which were appealable judgments (§ 904.1, subd. (a)(9)), plaintiffs forfeited
their contentions by failing to file timely appeals from those judgments (Cal. Rules of
Court, rule 8.104 [appeal must be filed by earliest of 60 days after service of notice of
entry of judgment or 180 days after entry of judgment]). The current notices of appeal
were filed in April and June of 2012.
6
In June 2011, the referee received one offer. It was from Soper Company, for
$465,000.9
In a letter dated December 12, 2011, Mr. Hentschel wrote plaintiffs that the
engineer wanted payment from them for work he performed for the subdivision before
they abandoned the subdivision effort. Mr. Hentschel stated his understanding that
plaintiffs were going to pay that bill “and that Dave Norton and I would continue with
required reports to the court and sales efforts, waiting on further payments for those
services until either a sale or an improvement in your financial circumstances.”
Mr. Hentschel noted that hard economic times made it difficult to get a reasonable price
for the property and suggested that, if plaintiffs wanted to keep the property until things
improved, one possibility was for family or friends to buy out the other owners’ interests
in the property. “That would allow us to dismiss the court proceedings and cut off most
of the continuing expenses.”
On January 17, 2012, Mr. Hentschel sent an email to plaintiffs recounting his prior
discussion with them about the referee continuing to solicit additional offers if plaintiffs
brought the “ ‘pre-cutoff’ ” subdivision costs current. Mr. Hentschel said that, in further
discussion, the referee was reluctant to delay more than a month or two out of concern
that Soper may withdraw its offer. Mr. Hentschel said he was concerned that the referee
would soon petition the court for instructions and would probably recommend that the
court approve the Soper offer because there had been no other offers and the property had
been on the market an extended time. Mr. Hentschel said he did not know what the court
would do; plaintiffs’ opinions would carry considerable weight since they own more than
60 percent of the property, but the court would also be aware that there were unpaid
subdivision costs and referee fees and the uncertainty of how long it would take to get a
9 The offer letter is dated June 17, 2010, but is an apparent typographical error because
the letter refers to an information package received from the referee in June 2011.
7
better offer. Mr. Hentschel asked for plaintiffs’ thoughts on how to proceed. He also
said that it would be “greatly appreciated” if plaintiffs could make some payment on the
$7,000 they owed him.
On January 18, 2012, plaintiffs sent Hentschel an email in which they told
Hentschel he “better check with David Norton about your bills as all bills from you were
sent to us by [him] and reimbursement was sent to him.” They said Mr. Hentschel had
stopped billing them directly in 2006 and had sent his bills directly to the referee and that
they had promptly paid the bills when they were received. As for the offer, they made no
objection to the prospect of a sale. Instead they wrote, “We have not seen an offer for the
sale of La Porte - how can we approve any offer unless we know what the amount of the
offer was?”
On January 20, 2012, plaintiffs on their own sent an ex parte letter to Judge Hilde
saying they “would like to halt all proceedings concerning the sale of [their] property.”
They attached the February 7, 2011, letter to Mr. Hentschel in which they had previously
directed him and the referee to stop all work on the “division and/or sale of the La Porte
property.” The letter was discussed by court and counsel at a case management
conference on January 23, 2012. The minute order for that conference reads only,
“Mr. Hentschel informs the Court that a petition is going to be filed requesting the Court
confirm an offer on the property. The Court recalls the matter when a letter from Alfredo
& Alicia Aguilera is presented. The matter is discussed with counsel who has no
objection.”
In an email dated January 25, 2012, Mr. Hentschel told plaintiffs that the referee
was going to accept the Soper offer, which was for $465,000 cash. Mr. Hentschel
explained the court process for confirmation of the sale and grounds to vacate the sale,
and gave his opinion that there were no grounds to stop the sale with the possible
exception that the sale price was disproportionate to the value of the property.
Mr. Hentschel wrote: “You might want to give some thought to hiring an appraiser. If
8
the appraised value comes in at more than the Soper offered price, we would have a good
argument for rejecting the sale and going back to more marketing efforts.” Mr. Hentschel
said the referee had agreed to wait until Hentschel returned from vacation before
petitioning the court to approve the sale and predicted the confirmation hearing might be
set on a day sometime in the middle to late March 2012. Mr. Hentschel said, “You have
never responded to my suggestion that you might want to think about buying the property
yourself. You own over 60% and consequently would only have to buy the 40% you
don’t own. Furthermore, the court would likely approve a credit sale for the 40%. In
other words, the court would probably allow you to purchase the interests you don’t own
with a promissory note, rather than cash.” Mr. Hentschel concluded the email by saying,
“Please let me know your thoughts on all of this.” The record reflects no written
response from plaintiffs.
Also on January 25, 2012, the referee, having received no other offers, accepted
Soper Company’s June 17, 2011, offer, subject to the court’s confirmation.
On March 8, 2012, the referee filed a motion to confirm sale of the property to
Soper Company for $465,000, pursuant to section 873.730.10 He filed an amended notice
of motion on March 16, 2012. The hearing was noticed in the amended motion for
April 23, 2012.
10 Section 873.730 states in pertinent part: “(b) The court may confirm the sale
notwithstanding a variance from the prescribed terms of sale if to do so will be beneficial
to the parties and will not result in substantial prejudice to persons interested in the sale.
[¶] (c) The court may vacate the sale and direct that a new sale be made if it determines
any of the following: [¶] (1) The proceedings were unfair or notice of sale was not
properly given. If there is no finding at the hearing of unfairness or improper notice, the
sale may thereafter not be attacked on such grounds. [¶] (2) The sale price is
disproportionate to the value of the property. [¶] (3) It appears that a new sale will yield
a sum that exceeds the sale price by at least 10 percent on the first ten thousand dollars
($10,000) and 5 percent on the amount in excess thereof, determined after a reasonable
allowance for the expenses of a new sale.”
9
On March 12, 2012, plaintiffs filed a substitution of attorney, replacing their
lawyer, Peter Hentschel, with Andrew Shalaby.
On April 9, 2012, plaintiffs filed an ex parte application for extension of time to
serve opposition to the motion to confirm the sale and to file motions to terminate the sale
and replace the referee, on the ground that plaintiffs’ new attorney, Andrew Shalaby, had
not yet received all files from former counsel. Mr. Shalaby attested the referee had
improperly used plaintiffs’ former lawyer, Peter Hentschel, to negotiate the transaction
and file the motion to confirm the sale, against plaintiffs’ instructions for Mr. Hentschel
to oppose the sale on their behalf.
At a hearing on the ex parte application on April 10, 2012, Judge Janet Hilde
noted a hearing had been scheduled for April 23rd on the motion to confirm the sale. She
decided to recuse herself from any proceedings in which Mr. Hentschel’s credibility
would be in issue. Judge Hilde stated: “[A]bout 15 minutes ago, I got the opposition
filed by Ms. Kitterman.[11] And it, in looking at the paperwork, let me just tell you my
problem with hearing this matter, is that I often don’t hear contested -- well, I don’t hear
contested issues that involved Peter Hentschel, as he’s a personal friend, and I socialize
with him. And when I looked at the application, it looked like there [were] some
allegations against Mr. Hentschel. And in looking at the opposition, also, what I’m
feeling is that I don’t feel it’s appropriate to vacate, or to continue the hearing that’s on
for the sale, but I no longer feel comfortable hearing your request, Mr. Shalaby, knowing
that there’s some underlying argument about Mr. Hentschel’s representation on this
matter. [¶] So what I’ve arranged, and I’m sorry you had to come all the way up here, I
was expecting you to appear by phone, Ms. Kitterman, but the 19th, which is the next
Thursday, we have a visiting Judge that can hear your ex-parte application. [¶] If it’s
11 Ms. Kitterman is counsel for and the daughter of Joseph Kitterman. Joseph Kitterman
is Alicia Aguilera’s brother and a trustee for the Kitterman trust.
10
granted, then whoever that visiting Judge is might continue the sale, but if he doesn’t, I
do have a visiting Judge also on the 23rd at 9:30, so we can keep that on, if need be. [¶]
So that’s what the Court’s intention is on this.”
Ms. Kitterman queried whether Mr. Shalaby would be willing to waive his
concerns regarding Mr. Hentschel, which led to the following:
“MR. SHALABY: Well, I’ll discuss, briefly, the matter. Maybe we have a
solution, I don’t know. [¶] Yesterday, I got from Mr. Hentschel the correspondence file
for the past ten years on this matter. And as I read it, I came to the conclusion that
Mr. Hentschel made all the right calls and made all the right recommendations and so
forth. And as I get into the part of the file from the year 2012, I see something went
wrong, but I’m not sure what. I can’t quite figure -- there’s no exchange of
correspondence to give me an idea what happened. I asked him, I left a message for him
today, if I could meet with him and find out about that gap, to figure out if there’s even a
problem at all. [¶] What I would like to know, can we maybe, just briefly, continue
everything to give me a chance to meet with Mr. Hentschel, and go over this file? I just
got it yesterday. And maybe we’ll be able to resolve everything. As I said, from what I
read, he sure looked like he made all the right calls for the many years -- he’s been
involved for over ten years, he worked pretty hard on this case.
“THE COURT: Well, I’m not inclined to do that unless there was some
stipulation. That’s why, I mean, I know that the sale was scheduled last month, I think,
and now it’s been continued at [the referee’s] request, I believe, to the 23rd. [¶] So,
unless there’s a stipulation from Ms. Kitterman that, sure, we can vacate the trial and look
at this. If not, you know, then I’d rather have this ex-parte application be heard on the
19th. Again, if it’s denied, I still have the option of doing that on the 23rd.
“MR. SHALABY: Well, maybe, I’ll ask Ms. Kitterman if she’d stipulate to
continuing it.”
11
Ms. Kitterman declined to extend any dates, because according to her,
Mr. Shalaby had delayed in getting the file and had then sent a barrage of unusual emails
causing expense and distress.
There then followed:
“THE COURT: Okay. Um, well, again, Mr. Shalaby, you’re indicating to me
that, I assume you want to withdraw your comments against Mr. Hentschel. Do you want
me to hear this today, or do you want to have this heard on the 19th in front of a visiting
judge?
“MR. SHALABY: Well, if I could just be permitted to provide a piece of
information to the Court and to Ms. Kitterman as well, and to Mr. Norton, and see if that
would secure a stipulation before proceeding?
“THE COURT: Okay. I tell you what. Why don’t you take ten minutes. . . .”
After a recess, the proceeding resumed:
“THE COURT: Okay. I’m assuming there’s no resolution, or is there?
“MR. SHALABY: There’s an issue that came up. Mr. Norton and I have
discussed it, I don’t know if your Honor would be willing to discuss it with us or not, but
as far as the narrow issue of the hearing, what your Honor proposed, I think is probably
what makes the most sense, which is the 19th with the visiting Judge, and the 23rd, I
guess, it will be another visiting Judge?
“THE COURT: Right.
“MR. SHALABY: I think that that sounds like the right thing to do. But
Mr. Norton and I were discussing whether we could discuss with your Honor if you will
allow us to, your Honor, thoughts about the bigger part of this. [¶] The actual problem
that we think may be resolvable, may not be resolvable, but that kind of looks more like a
settlement discussion than a part of a hearing.
“THE COURT: Right. And I think at this late hour, I’m probably not willing to
do that.
12
“MR. SHALABY: Right.
“THE COURT: Certainly, you can discuss that with Ms. Kitterman, if you want.
But I think what I’m going to do is set this ex-parte . . . application [for the 19th].”
After court recessed, plaintiffs submitted to the court clerk a unilateral request for
dismissal of the case without prejudice, which the court clerk filed although not
statutorily authorized to do so. As we discuss in more detail post, a matter may not be
dismissed without prejudice by a plaintiff after the trial has commenced. (§ 581,
subd. (b); see fn. 20, post.) Only the trial court -- upon a showing of good cause -- can
grant a dismissal without prejudice after commencement of the trial, unless all the parties
consent. (§ 581, subd. (e); see fn. 24, post.) Trial had commenced and indeed concluded
in 2003, as reflected in the interlocutory judgments.
Mr. Shalaby sent the Kittermans an email informing defendants of the dismissal.
After learning of the illegal dismissal, Ms. Kitterman spoke with the court clerk, who
realized her error in filing the dismissal and indicated the mistake would be corrected.
The following day, April 11, 2012, the trial court filed a minute order signed by
Judge Hilde, stating, “An Interlocutory Judgment having been filed August 21, 2003, the
Court hereby vacates the Request for Dismissal of Entire Action filed April 10, 2012.”
On April 13, 2012, plaintiffs filed a motion to set aside the sale, on the grounds
that: (1) the sale was outside the scope of the complaint and violates federal due process;
(2) Mr. Hentschel, plaintiffs’ former attorney, was employed by the referee and prepared
the substantive documents for confirmation of sale against plaintiffs’ instructions and in
violation of section 873.120 (which says the same lawyer should not represent the referee
and a party without written consent); (3) Mr. Hentschel prepared and filed the May 23,
2011, second amended interlocutory judgment on behalf of the referee, without plaintiffs’
authority/knowledge/consent and against plaintiffs’ written instructions; (4) the sale was
inconsistent with the objectives of the lawsuit; (5) Mr. Hentschel and his “friend,” referee
Norton, obtained an improper and unauthorized order for sale of the property so they
13
could collect fees; and (6) the referee should be removed because he acted improperly
with the aid of plaintiffs’ own lawyer to sell the property against plaintiffs’ wishes.
Plaintiffs’ memorandum of points and authorities asserted that they want to buy the
property themselves at the $465,000 contract price.
The Kittermans filed an opposition to plaintiffs’ motion to set aside the sale,
stating plaintiffs failed to establish grounds to vacate the sale under section 873.730,
subdivision (c). (See fn. 10, ante.) Responding to plaintiffs’ points, the opposition said:
(1) there was no due process violation because section 873.640 requires notice only to
parties who have appeared in the action, and the referee did send notice to all parties who
had appeared; (2) even if there was a violation in plaintiffs’ former lawyer doing work for
the referee’s motion to confirm the sale, it would be unjust to the other owners to allow
such a “mere technicality” to overturn the sale; (3) plaintiffs were “copied” on emails
about the amended interlocutory judgments, and the exhibits to plaintiffs’ motion showed
plaintiffs were well aware of the proceedings but were merely unhappy about the price;
(4) the sale is consistent with the objectives of the action and is required by the amended
interlocutory judgment; (5) the sale was at plaintiffs’ request because they decided to sell
the property rather than continue with a difficult and costly subdivision; (6) removal of
the referee was unjustified and could harm all property owners by incurring additional
cost and delay; and (7) plaintiffs’ claim that the sale price is inadequate is refuted by their
assertion that they want to buy the property themselves at the same price.
On April 17, 2012, the referee submitted an ex parte application asking for court
authority to hire an attorney, and Judge Hilde signed the ex parte order granting authority
on the same day.
On April 18, 2012, the referee filed an opposition to plaintiffs’ motion to set aside
the sale. The referee submitted documents showing he sent plaintiffs bills for the legal
work Hentschel did for the referee, and plaintiffs paid those bills. The referee cited his
own expertise and marketing efforts and his opinion that the sale price was fair. He
14
further asserted that plaintiffs could not belatedly direct the referee to stop his efforts to
sell the property, and plaintiffs had the right to bid a higher price at the confirmation
hearing under section 873.740.12
On April 19, 2012, visiting Judge Thomas Kelly denied the ex parte application
for extension of time.
Also on April 19, 2012, plaintiffs filed a motion to replace the referee.
Mr. Shalaby submitted a declaration that stated: “I spoke with Mr. Pete Hentschel and
Mr. Norton, the referee, in March of 2012 and was told by both that they had been close
friends for decades, and further, that Mr. Hentschel had performed various legal services
for Mr. Norton in relation to this legal matter, hence in violation of California Code of
Civil Procedure [section] 873.120.” Plaintiffs argued the referee had used Hentschel,
who had not acted in plaintiffs’ best interests and had ignored their instructions to avoid
efforts to sell the property.
On April 23 and 24, 2012, a hearing was held before visiting Judge Thomas
Warriner which, by stipulation of all parties, covered not only the referee’s motion to
confirm the sale, scheduled for April 23rd, but also plaintiffs’ motions to remove the
referee and set aside the sale, which had been scheduled for May.13 There was
12 Section 873.740, subdivision (a), states: “If at the hearing under Section 873.730 a
responsible bidder makes a written increased offer that exceeds the sale price by at least
10 percent on the first ten thousand dollars ($10,000) and 5 percent on the amount in
excess thereof, the court in its discretion may do either of the following: [¶] (1) Vacate
the sale and direct that a new sale be made. [¶] (2) Vacate the sale, accept the increased
offer, and confirm the sale to the offerer.”
13 Plaintiffs contend there was a fourth motion, to compel an accounting, but that was
part of the motion to replace the referee. On appeal, plaintiffs claim that only the motion
to remove the referee was heard and that, although all parties stipulated to have all
motions heard at the same time, the judge got “confused” and “simply forgot” to hear the
motion to confirm the sale. The transcript shows the “various motions” were submitted
15
discussion about the fact that the evidence for all three motions overlapped. The court
said it made sense to decide the issue of removal of the referee first, because if the court
removed the referee, it most likely would not approve the sale handled by that referee.
Mr. Shalaby argued plaintiffs would be “happy to buy” the property at the price of
$465,000, which “is way too low,” which led to the following:
“THE COURT: So your clients are willing to make a binding offer to buy the
property for the amount in the sale today?
“MR. SHALABY: For more than that amount.
“THE COURT: I mean, they make that offer today as a fall-back position. They
would pay not less than the amount of the current proposed sale.
“MR. SHALABY: They would definitely do that today. The only problem is
they’d like to give notice to the others first. They’d like the other owners or --
“THE COURT: Well, no one cares if someone wants to pay more.
“MR. SHALABY: Well, there’s another issue by the way which is the referee has
come up with a condition that it has to be a no credit bid. . . . [¶] The consequence of no
credit bids doesn’t coincide with the code at all because the code says what the court sets
in terms of the sale. The court never set the terms for the sale; the referee just came up
with it. . . . [E]verybody out there who has notice . . . has notice that it has to be all cash.
If my clients are going to pay more than 465, they may have to do it with a credit bid, in
other words, paid over time or something like that.
“THE COURT: You mean that the estate would be the lender.
“MR. SHALABY: The 30 percent, yes, the 30 percent ownership because they
have the 70 already.”
at the same time. The two instances when the judge said he was confused related to poor
form in Mr. Shalaby’s questioning a witness, not confusion over what was at issue.
16
Mr. Shalaby added there was another problem, in that plaintiffs had offered to buy
the Kittermans’ interest for cash, and the Kittermans refused.
The referee’s lawyer interjected that a credit sale would be problematic. The trial
court agreed, stating, “When you have fractional interests of this sort, doing a time sale is
a little bit complicated. Some peoples’ payments on a monthly basis would be quite
small.”
The court heard testimony from Joseph and Kathleen Kitterman and some
testimony from the referee and then recessed for lunch. When the afternoon session
started, the court inquired about continuing the following morning and asked about
logistics of participants who had travel considerations. The referee’s lawyer said he was
confused as to which motion they were on. The judge said, “Well, in my mind, I’m
doing the May motion [to remove the referee] first because if I grant [it], then I’m not
really likely to approve the sale. If I deny his May motion, then I move on to the sale
issue.”14 The referee’s lawyer noted the referee’s motion to confirm the sale was on the
schedule to be heard that day. The court said, “Right. The other alternative which didn’t
appeal to me was to postpone the sale motion until after the May motion, and so I thought
I sensed in everybody a willingness to let’s get the May motion done early and then we
can decide the other motion because if I grant his motion, I’m not going to be real
comfortable approving a sale -- [¶] . . . [¶] -- that was negotiated basically by somebody
who I’ve removed.” The court said, “[W]ith regard to the sale motion, I’ve got your
stuff. I think I’m getting an understanding of it. I just need to know what I should do on
[the motion to remove the referee].” Plaintiffs’ lawyer indicated he did not have many
more questions for the referee. The referee’s lawyer said he had not yet put on his
evidence supporting the motion to confirm the sale, though he could appreciate the court
14 Actually, there were two motions scheduled for May -- plaintiffs’ motions to remove
the referee and to set aside the sale.
17
“wanting to rush through it . . . .” The court objected to “rush” and said it was more like
“dispatch.” The referee’s lawyer said he would like to elicit testimony from the referee
relevant to the motion to confirm the sale and “[l]ike I was talking about before, we have
a lot of overlap.” The court said, “[T]hat’s why I got into this.” The referee’s lawyer
said, “My understanding was we were going to hear all three, and that’s kind of what I
had prepared to do.” The court said, “That’s where I’m at.” The Kittermans’ lawyer said
it was her understanding that if the court confirmed the sale, the motion to replace the
referee would be moot. The court said that, for purposes of this discussion, he would not
necessarily deny the motion to remove the referee. The court surmised that someone was
concerned that delay might result in the buyer backing out. Plaintiffs’ lawyer said he was
not concerned about delay; the other parties expressed concern about delay. The court
told everyone to “cogitate” until the following day.
The next morning began with an off the record discussion followed by resumption
of the referee’s testimony.
Norton testified he became a real estate broker around 1970, retired five years
before testifying, and had 35-40 years of experience in the local real estate market. His
marketing efforts for this property were “[c]ontacting by phone, email all the people . . .
that I have dealt with, the successful brokers in the Sacramento Valley where most of the
owners up at La Porte live. Those are secondary homes up at La Porte. They all have
brothers and sisters and friends who might want another piece of property.” He also
contacted “my developer friends, engineers, architects, everybody who the small
developer works for . . . .” Norton said he is aware of the Multiple Listing Service (MLS)
but did not list this property on MLS because MLS “does not work in the remote
properties that I deal with. It just is a waste of money, which is your client’s money, and
my system has worked for the last forty years. Very successfully.” Norton did not
advertise the property on the Internet, except on his own website. He did not place
newspaper advertisements, other than the mandatory publication of notice, because it was
18
his experience that they do not work very well; persons who might be interested follow
the public notices.
Norton was asked about the fact that someone else sold 12.55 acres for $495,000
in June 2011, with 1,440 feet of lake frontage. When asked to justify selling the subject
property with 88 acres, which is seven times bigger, for the same price, the referee
explained that the other land was worth more, because it had already been subdivided.
The referee said the land that is the subject of this case would be worth much more, “a
strong million bucks,” if it were subdivided.
After the referee’s testimony, the court asked if there were any other witnesses,
and Mr. Shalaby said that he wanted plaintiffs to testify about not wanting to sell the
property and to refute defendant’s contention that Mrs. Aguilar’s declarations reflected
selected memory. The court said it had considered defendants’ contention argument and
then said, “So I would be correct in assuming that the various motions now stand
submitted,[15] and do either of you, any counsel, desire to provide written arguments? Or
if it’s submitted, I’ll take the files, go and read them, and send everyone a note.” (Italics
added.) The court added, “Do you want it to stand submitted based upon the materials in
the file and the testimony I’ve heard on the various motions, or do you want to have an
opportunity to submit further legal arguments?” (Italics added.) The referee’s lawyer
said he was prepared to submit. The Kittermans’ lawyer asked to offer into evidence an
email from Mr. Shalaby, instructing the Kittermans to use plaintiffs’ former lawyer,
Mr. Hentschel, to file for a continuance of the confirmation hearing. Mr. Shalaby said,
“I’ll just say it. That’s what I did.” The Kittermans’ lawyer asked to submit the email,
but the court said, “It’s not considered as a big deal.”
15 On appeal, plaintiffs claim that only the motion to remove the referee was submitted.
19
After further discussion of exhibits, Mr. Shalaby said it appeared the property was
put up for sale in order to pay pre-cutoff subdivision costs or maybe other costs.
Mr. Shalaby said, “The reason [plaintiffs] are here today and what I wanted them to do,
take the stand and then testify directly, was they didn’t want to sell the property. All they
wanted to do was build a home on the lakefront of the property. That’s what they want to
do today. They don’t want to sell it, they want to build a home on the lake. [¶] And
Mr. Hentschel, the former counsel, they told him in no uncertain terms, ‘We don’t want
to sell the property. We don’t want this to continue. We don’t want a blank check on
subdivisions. We just want to bring it all to an end. We’re not made of money and we
don’t want to sell the property.’ [¶] He ignored them and he went ahead and proceeded
to obtain those judgments . . . , which Ms. Kitterman said that my clients knew all about,
and I really would love it if they could take the stand and respond to that today. [¶] Yes,
they received copies of email communications with attachments to them, but not a single
one shows they ever responded saying we agree to any of this.” Mr. Shalaby said it
would be better for the court to hear it from plaintiffs directly. The court accepted
counsel’s representation as to what his clients would say. The court then allowed
Mr. Shalaby to make representations concerning statements purportedly made by
Mr. Hentschel and the referee about work Mr. Hentschel had done for the referee, all of
which the trial court noted was reflected in the papers Mr. Shalaby had filed.
The trial court concluded the hearing by saying, “I do have a good grasp of the
materials, and I will advise you all in writing after I’ve had a chance to further cogitate. I
appreciate all of you bringing a very interesting case to me, rather more than I expected
from my visit here. Thank you all.”
The court issued a written order, dated April 24, 2012, labeled “RULING ON
MOTIONS,” which stated:
“This matter came on for hearing on Referee David Norton’s Motion to Confirm
Sale of Real Property. This Motion was opposed by Plaintiffs who asked that the sale be
20
set aside. Plaintiffs also filed Motions to Compel Accounting and Replace Referee David
Norton with Richard Osmondson. Certain of Plaintiffs motions were initially scheduled
to be heard on May 30, 2012. By agreement of all counsel all motions were heard on
April 24, 2012.
“The Court, after listening to testimony and considering the materials and
arguments submitted by counsel rules as follows:
“1. Plaintiffs’ Motions to Compel Accounting and Replace Referee David Norton
and to set aside the sale are denied.
“2. Referee David Norton’s Motion to Confirm Sale is granted.”
On April 27, 2012, plaintiffs filed a notice of appeal from the orders confirming
the sale and declining to remove the referee.
On May 4, 2012, plaintiffs filed a motion for new trial on the following grounds:
1. Irregularity in proceedings, in that Judge Hilde after recusing herself filed a
void order vacating plaintiffs’ dismissal of the case.
2. Irregularity in proceedings, in that the referee filed an improper ex parte
application to hire counsel, and Judge Hilde having recused herself had no jurisdiction to
sign the order, and the order failed to specify who shall pay for the lawyer, and it would
violate procedural due process to have the lawyer’s fees come out of the sale proceeds.
3. Irregularity in proceedings, in that plaintiffs told everyone in late 2010 and
early 2011 that they did not wish to sell the property, yet their lawyer Mr. Hentschel had
“his friend” Judge Hilde sign the amended judgment in May 2011 without disclosing that
the plaintiffs told him not to move for a sale.
4. There was no hearing on the motions to confirm or set aside the sale; the
hearing was only on the motion to remove the referee. Plaintiffs claim they were
deprived of the opportunity to bid on the property themselves.
5. The notice of sale and notice of motion to confirm sale were procedurally
defective.
21
6. The sale is unfair to plaintiffs and to all the named defendants, because
defendants’ proceeds will be very low or zero, and plaintiffs told other owners that the
suit was abandoned, so they must be notified of any inconsistent course of action.
7. The sales price is grossly below market value, which plaintiffs expect to show
by a new appraisal they have ordered and expect to produce before hearing on the motion
for new trial.
The Kittermans filed an opposition to the motion for new trial, arguing:
1. Judge Hilde did not lose jurisdiction, and plaintiffs’ lawyer himself asked
Judge Hilde to stay on for possible settlement discussions.
2. Appointment of counsel for the referee was proper and in fact was necessitated
by plaintiffs’ meritless accusations against the referee.
3. Plaintiffs merely decided to stop attempts to subdivide the property, not to stop
the sale, and the matter was already heard and plaintiffs fail to show any ground for new
trial.
4. The hearing on April 23 and 24, 2012, was on all motions -- the motion to
remove the referee, the motion to confirm the sale, and the motion to set aside the sale.
The court merely started with the matter of removing the referee first, to which all parties
agreed. If plaintiffs wanted to submit a bid at the hearing, nothing prevented them from
doing so.
5. Of the two statutes cited by plaintiffs for their claim of procedural defects in
the notice of sale and notice of motion, one statute does not exist (§ 65016), and the other
(§ 640) says nothing about the matter.
16 This statute was repealed in 1945. (Stats. 1945, ch. 40, § 16.)
22
6. Plaintiffs do not have standing to complain about low proceeds for defendants,
a point about which they are wrong anyway, and only parties who appear in the action
need be notified (§ 873.640).
7. Plaintiffs cannot obtain a new trial by ordering a new appraisal after the court
confirmed the sale, because section 657 allows for a new trial only when there is newly
discovered evidence which could not, with reasonable diligence, have been discovered
and produced at trial.
Before the hearing on the motion for new trial, plaintiffs on June 8, 2012, filed an
ex parte application for relief from excusable neglect under section 473, which asked the
court to set aside the April 2012 order confirming the sale and allow plaintiffs to submit a
new appraisal dated May 28, 2012, received on June 5, 2012, on the grounds that
plaintiffs were unable to obtain the new appraisal earlier and the new appraisal showed a
property value of $785,000. Mr. Shalaby submitted his own declaration.17 The
declaration said the trial court denied his request for more time, and he did not have
enough time to obtain a new appraisal before the April 23, 2012, hearing. Shalaby said
the Kittermans’ lawyer “correctly asserted that at one time I said I did not need the
additional time, but that was prior to learning of the extent of the problems I was facing
in this action.” Shalaby further attested it was “not reasonably possible” to obtain a new
appraisal before the April 23rd hearing. Shalaby said he found an appraiser on or about
April 30, 2012.
The Kittermans and the referee filed oppositions to the section 473 motion.
On June 12, 2012, after a hearing, the trial court denied the motion for new trial
and the motion for section 473 relief.
17The copy submitted in plaintiffs’ appellants’ appendix is not signed by Mr. Shalaby.
We will assume for purposes of this appeal that he did sign the one he filed in court.
23
On June 29, 2012, plaintiffs filed a notice of appeal from the judgment, orders
after judgment, and specifically denial of the motions for new trial and section 473 relief.
The Kittermans filed a motion for sanctions for a frivolous appeal. Norton filed a
joinder which supports an award of sanctions to the Kittermans and reserves the referee’s
right to seek sanctions in the trial court.
DISCUSSION
I. Appealability
In their appellate briefing, plaintiffs list four matters (which actually encompass
five items)18 from which they are appealing:
(1) the April 11, 2012, order signed by Judge Hilde, vacating plaintiffs’ unilateral
dismissal of the lawsuit;
(2) the April 24, 2012, order confirming the sale;
(3) the April 24, 2012, order denying the motion to remove the referee; and
(4) the June 12, 2012, orders denying the motion for new trial and “related relief”
under section 473.
These orders are appealable as orders made after an appealable judgment, i.e., the
interlocutory judgment. (§ 904.1, subd. (a)(2) [appeal may be taken from order made
after an appealable judgment], subd. (a)(9) [interlocutory judgment directing partition is
an appealable judgment].)19
18 Although plaintiffs’ notices of appeal purport to appeal from a variety of matters, we
need consider only those matters addressed in plaintiffs’ opening brief on appeal.
(People v. Turner (1994) 8 Cal. 4th 137, 214, fn. 19 [reviewing court need consider only
contentions adequately briefed].)
19 After the order granting the motion to confirm the sale, the referee submitted a formal
order (§ 873.750), but the trial court said its jurisdiction had been stayed by the notice of
appeal.
24
Citing Walker v. Los Angeles County Metropolitan Transportation Authority
(2005) 35 Cal. 4th 15, the Kittermans argue that this court does not have jurisdiction to
hear an appeal from the order denying the motion for new trial, because an order denying
a motion for new trial is not appealable but is reviewable on appeal from the underlying
judgment. (Id. at p. 18.) The court in Walker held that an order denying a new trial is not
“independently appealable” but may be reviewed only on appeal from the underlying
judgment. (Id. at p. 19.) However, here, plaintiffs did file an appeal from the underlying
judgment involving the appealable orders confirming the sale and declining to remove the
referee. Accordingly, we will address the claims of error raised in this appeal.
II. Standard of Review
Plaintiffs claim their contentions raise questions of law subject to de novo review,
except the section 473 matter which they concede is subject to review for abuse of
discretion. However, the statutes say the court “may” remove a referee (§ 873.010) and
“may” confirm or vacate a sale (§ 873.730). Thus, the orders confirming the sale and
declining to vacate the sale or remove the trustee are reviewed for abuse of discretion.
Moreover, “although the action of partition is of statutory origin in this state, it is
nonetheless an equitable proceeding [citations].” (Elbert, Ltd. v. Federated etc.
Properties (1953) 120 Cal. App. 2d 194, 200.) In a partition action, the proper standard of
review is abuse of discretion. (Zarrahy v. Zarrahy (1988) 205 Cal. App. 3d 1, 4-5.) “It
must be remembered that a partition suit is in equity. [Citation.] A court of equity has
broad powers and comparatively unlimited discretion to do equity without being bound
by any strict rules of procedure.” (Richmond v. Dofflemyer (1980) 105 Cal. App. 3d 745,
766 (Richmond).) Unless a clear case of abuse of discretion is shown and unless there
has been a miscarriage of justice, a reviewing court will not substitute its opinion and
thereby divest the trial court of its discretionary power. (Blank v. Kirwan (1985) 39
Cal. 3d 311, 331.) Plaintiffs, as appellants, have the burden to establish abuse of
discretion. (Ibid.)
25
Moreover, plaintiffs must show prejudice to obtain a reversal. (Cal. Const., art.
VI, § 13 [“No judgment shall be set aside, or new trial granted, in any cause, . . . for any
error as to any matter of procedure, unless, after an examination of the entire cause,
including the evidence, the court shall be of the opinion that the error complained of has
resulted in a miscarriage of justice.”]; § 475 [No judgment, decision, or decree shall be
reversed or affected by reason of any error . . . or defect, unless . . . [it] was
prejudicial.”].)
III. Orders Signed by Recused Judge
Plaintiffs argue that Judge Hilde’s order vacating their dismissal is void because
she had recused herself. Plaintiffs say they prefer the sale be vacated and the referee
removed and another appointed, but request reversal of the order vacating the dismissal
and reinstatement of the dismissal as a “last resort.” In a footnote, plaintiffs complain
Judge Hilde also signed the order authorizing the referee to hire a lawyer after she had
recused herself. Plaintiffs have forfeited these contentions.
It is beyond dispute that plaintiffs’ request to dismiss was improper and the court
clerk erroneously filed the dismissal, because under section 581 the court clerk is only
authorized to file a dismissal without prejudice at the plaintiff’s request before trial has
commenced,20 and trial had long since commenced and concluded, as reflected in the
interlocutory judgment. Without citing authority, plaintiffs claim the invalid dismissal
could not be vacated without a proper noticed motion to determine if grounds existed to
deem the interlocutory judgment void, as having been issued by a judge who would have
20 Section 581 provides in part: “(b) An action may be dismissed in any of the following
instances: [¶] (1) With or without prejudice, upon written request of the plaintiff to the
clerk, filed with papers in the case, or by oral or written request to the court at any time
before the actual commencement of trial, upon payment of the costs, if any. . . . [¶] (c) A
plaintiff may dismiss his or her complaint, or any cause of action asserted in it, in its
entirety, or as to any defendant or defendants, with or without prejudice prior to the
actual commencement of trial.” (Italics added.)
26
recused herself had she known the matter would end up contesting the credibility of
plaintiffs’ lawyer. Plaintiffs are wrong. Their dismissal was statutorily invalid because
trial had commenced and concluded years before.
The question here is whether the trial court’s order vacating the dismissal is void,
because it was signed by Judge Hilde who had recused herself from the case the day
before vacating the dismissal.21 Section 170.3 provides in pertinent part: “(a)(1) If a
judge determines himself or herself to be disqualified, the judge shall notify the presiding
judge of the court of his or her recusal and shall not further participate in the proceeding,
except as provided in Section 170.4, unless his or her disqualification is waived by the
parties as provided in subdivision (b) [waiver must be signed by all parties and
attorneys]. . . .” However, section 170.4 states in pertinent part: “(a) A disqualified
judge, notwithstanding his or her disqualification may do any of the following: [¶] (1)
Take any action or issue any order necessary to maintain the jurisdiction of the court
pending the assignment of a judge not disqualified.” Here, all that Judge Hilde did was to
vacate plaintiffs’ improper dismissal, thus preserving the trial court’s jurisdiction -- an act
authorized by section 170.4. Consequently, though not argued by the parties, the order
vacating the dismissal is not void or even voidable.
Even if the order vacating dismissal was not authorized by section 170.4, plaintiffs
have forfeited the issue by not objecting in the trial court to Judge Hilde’s signing of the
21 Norton argues Judge Hilde never recused herself as reflected by the fact that she never
filed anything “officially” doing so. Rather, according to Norton, Judge Hilde left it up to
the parties, who did not file a statutory disqualification statement. The Kittermans argue
a judge’s refusal to recuse herself can be challenged only by means of writ of mandate.
(See § 170.3, subd. (d).) However, our reading of the record reveals that Judge Hilde did
recuse herself from further contested proceedings and arranged to have the matter heard
by a visiting judge. Since Judge Hilde did not refuse to recuse herself, and there was no
objection in the trial court to the two orders signed by her, we see no basis for a writ of
mandate.
27
order at a time when the matter could have been easily corrected by having a different
judge consider the order. In People v. Cowan (2010) 50 Cal. 4th 401 (Cowan), the judge,
Judge Gildner, presiding over a jury trial in a criminal case realized during trial that his
close friends were upcoming witnesses and relatives of one of the victims. (Id. at p. 454.)
After recusing himself, the judge did not further participate in the case except to rule on,
and deny without prejudice, the defendant’s mistrial motion, and refer the case to another
judge. (Id. at p. 455.) On appeal, the defendant argued the disqualification statute did
not permit the disqualified judge to rule on the mistrial motion. Our Supreme Court said
that, although the defendant did not waive disqualification, “defendant did not object to
Judge Gildner’s ruling on the motion or ask [the new judge] to reconsider Judge
Gildner’s ruling, even though Judge Gildner denied the motion ‘without prejudice.’ To
the contrary, defendant affirmatively sought a ruling from Judge Gildner. Accordingly,
defendant forfeited any claim that . . . section 170.3, subdivision (a)(1), prohibited Judge
Gildner from ruling on the mistrial motion.”22 (Id. at pp. 454-455; see also Andrisani v.
Saugus Colony Limited (1992) 8 Cal. App. 4th 517, 525-526 [when party acquiesces to
assumption of jurisdiction by disqualified judge, the party forfeits the right to raise the
issue on appeal].)
Here, plaintiffs did not timely object in the trial court to Judge Hilde’s signing the
order vacating the dismissal. Instead, plaintiffs accepted the fact that the case was still
ongoing by filing their motion to vacate the sale and failing to object to the order vacating
dismissal. Plaintiffs did not challenge any orders signed by Judge Hilde as void or
voidable -- until their motion for new trial, after Judge Warriner had issued his orders
22 The Cowan court went on to say that, because a mistrial was not required, any
violation of the disqualification statute did not prejudice defendant. (Cowan, supra, 50
Cal.4th at p. 455, citing People v. Watson (1956) 46 Cal. 2d 818, 836-837.) Because we
find forfeiture, we need not address the question of harmless error.
28
granting the motion to confirm the sale, denying the motion to vacate the sale, and
denying the motion to remove the referee.
As plaintiffs have said in their appellate briefing, they prefer that the sale be
vacated and a new referee appointed, but request reversal of the order vacating dismissal
as a “last resort.” We discern the same motivation for failing to object to the order in the
trial court. They did not challenge the trial court’s order before further proceedings took
place. Instead, plaintiffs rolled the dice in hopes of preventing the sale and replacing the
referee in the trial court, when they could have raised the recusal issue before Judge
Warriner. We will not allow plaintiffs to unroll their roll of the dice now that their
gamble proved unlucky.
Citing Christie v. City of El Centro (2006) 135 Cal. App. 4th 767 (Christie),
plaintiffs argue we must conclude the order vacating the dismissal is void, because once a
judge has recused herself, any further orders by the recused judge are void and have no
effect. In Christie, the plaintiff peremptorily challenged a judge under section 170.6.
The second judge assigned to the case granted nonsuit. However, prior to doing so, the
second judge spoke with the disqualified judge about matters in the case unrelated to the
nonsuit motion. Thereafter, the judge who granted the nonsuit was disqualified under
former section 170.1, subdivision (a)(6)(C) (a person aware of the facts might reasonably
entertain a doubt that the judge would be able to be impartial). A motion for a new trial
grounded on “ ‘irregularity in the proceedings’ ” was granted by a third judge because the
judge who granted nonsuit had talked to the first judge and was disqualified for having
done so. (Id. at pp. 773-775.) On appeal, the Christie court affirmed. Applying case law
decided under former disqualification statutes, including a 1934 California Supreme
Court case (Giometti v. Etienne (1934) 219 Cal. 687 (Giometti) [order granting review of
a case was considered void because one of the justices who signed it did not realize his
relative represented the petitioner]), the court in Christie held that the order issued by a
29
disqualified judge is void and will be set aside without determining whether the order was
meritorious or whether the moving party was prejudiced. (Christie, at p. 776-777.)
However, the Christie court went on to say, “Although the California Supreme
Court has never reconsidered its holding in Giometti, some Courts of Appeal have
concluded that such orders are voidable, meaning they only must be vacated if the issue is
properly raised by a party in the trial court, because the superior court itself, if not the
disqualified judge, retains fundamental subject matter jurisdiction. [Citations.] Witkin
has analyzed the issue and concludes that such orders are voidable, not void: ‘Little is
accomplished by calling the judgment of a disqualified judge “void.” . . . The real
question—the effect of the judgment—is evaded by the loose application of this word of
many meanings. The problem is one of jurisdiction and, despite the fact that a
disqualified judge totally lacks power to hear and determine the cause, the defect should
not be considered a lack of jurisdiction of the subject matter . . . .’ ” (Christie, supra, 135
Cal.App.4th at pp. 779-780.) The court in Christie felt itself bound by the 1934
California Supreme Court decision in Giometti and held the order was void, but the
Christie court went on to determine that, if the Supreme Court were to reconsider and
hold such orders merely voidable rather than void, it would still invalidate the order. (Id.
at p. 780.) Christie does not help plaintiffs in this case, because in Christie the plaintiff
did not roll the dice like plaintiffs did here. The Christie plaintiff preserved the issue by
filing a challenge for cause in the trial court and challenging the disqualified judge’s
orders immediately after finding out about the existence of grounds for disqualification.
(Id. at pp. 772-773.)
Although the California Supreme Court has not expressly revisited Giometti, our
high court did hold in Cowan that the defendant forfeited any challenge to rulings made
by a disqualified judge where the defendant failed to object to the disqualified judge or
ask the new judge to reconsider the disqualified judge’s ruling. (Cowan, supra, 50
Cal.4th at p. 455.)
30
Accordingly, we conclude plaintiffs have forfeited any claim that section 170.3
prohibited Judge Hilde from signing the order vacating their improper dismissal.
In a footnote, plaintiffs complain Judge Hilde also signed the April 17, 2012, order
authorizing the referee to hire a lawyer. We may disregard contentions perfunctorily
asserted in a footnote without development. (Placer Ranch Partners v. County of Placer
(2001) 91 Cal. App. 4th 1336, 1343, fn. 9.) Even if we were to consider it, this contention
would also fail for the reason that plaintiffs forfeited their challenge to a recused judge
signing the order by failing to raise it in the trial court at the time it occurred.
Plaintiffs fail to show any grounds for reversal based on recusal of the judge.
IV. Referee’s Use of Plaintiffs’ Attorney
Plaintiffs argue section 873.120 precluded the referee from employing an attorney
who was representing a party to the action. Plaintiffs are right, but they have failed to
show prejudice.
Section 873.120 provides: “(a) The referee may employ an attorney only with the
approval of the court pursuant to Section 873.110. [¶] (b) The application for approval
shall be in writing and shall include the name of the attorney whom the referee wishes to
employ and the necessity for the employment. [¶] (c) The attorney so employed may not
be attorney for, or associated with or employed by an attorney for, any party to the action
except with the written consent of all the parties to the action. [¶] (d) Any claim for
compensation for the attorney shall detail the services provided by the attorney.” (Italics
added.)
At oral argument, counsel for referee argued that the referee drafted everything
other than the interlocutory judgment, to which there was a stipulation. Counsel focused
primarily on the motion to confirm the sale, stating that the referee drafted that motion
and just used Hentschel’s office to put a cover sheet on it and to file it, and “that’s what it
comes down to.” But as the referee acknowledged in the trial court and in his brief on
appeal, he sent plaintiffs Hentschel’s bill for “work related to ‘amend the referee’s report’
31
along with another invoice showing ‘advise referee re legal aspects of partition[.’] ” We
also note an email in the record from Hentschel to Norton in which Norton provided legal
advice concerning the procedure for sale required by the Code of Civil Procedure.23 In
his appellate briefing, Norton does not dispute Hentschel did legal work for him. He
argues plaintiffs continued to pay Hentschel’s bills, knowing that he was doing work for
him as the appointed referee.
There was evidence that plaintiffs knew their lawyer, Mr. Hentschel, was doing
legal work for the referee at the same time he was representing plaintiffs, but as plaintiffs
point out, knowledge is not the same as legal consent. The statute requires “written
consent,” but there was no written consent here. Nor did the referee submit an
application in writing asking for court approval. Thus, the referee violated section
873.120.
However, plaintiffs fail to show the trial court abused its discretion in determining
not to remove the referee or vacate the sale on this ground (§§ 873.010, 873.730;
23 In an email dated January 21, 2011 (attached to a supplemental declaration filed by
Norton in the trial court), Hentschel wrote: “Dave: Here is the sale procedure as
required by the Code of Civil Procedure. There is nothing in the code that allows the
court to vary from or waive any part of the procedure: [¶] a. The court, on your
recommendation, determines whether the sale is to be at ‘public auction or private sale[.’]
I have never seen a Plumas County court order a public auction, primarily because its
such a small county and generally there are so few interested parties that public auction
just isn’t practical. So private sale is all but certain. [¶] b. Notice of sale must be given
‘in the manner required for the sale of like property at an execution sale[.’] An execution
sale requires that notice of the sale be published in the local paper and posted on the
property (get out your snowmobile). The published and posted notice is required to state
the date and place where bids will be received, etc. We followed this same procedure
when we sold the H.M. Bradley properties some years ago. I’m sure you remember all of
the details. [¶] c. Upon receipt of an acceptable offer, you, as referee, must petition the
court for confirmation. The confirmation hearing follows the same general rules as a
probate sale: the court must entertain overbids, if any, and can cancel the sale if the court
feels that the price is inadequate, or if there is evidence that further exposure to the
market will result in a higher price being offered.”
32
Richmond, supra, 105 Cal.App.3d at p. 766 [“A court of equity has broad powers and
comparatively unlimited discretion to do equity without being bound by any strict rules
of procedure”]) or that plaintiffs were prejudiced. (Cal. Const., art. VI, § 13; § 475.)
The evidence showed plaintiffs knew what was going on and benefitted from the
referee keeping costs down. Although plaintiffs insinuate Mr. Hentschel had a conflict
that operated to their detriment when he failed to follow their wishes to shut the case
down, plaintiffs overestimate their ability to control the lawsuit after the interlocutory
judgment was entered. They had no authority to dismiss the lawsuit without prejudice.
(§ 581.)24 And Mr. Hentschel made suggestions for their benefit, e.g., buying out the
other owners, suggesting that plaintiffs get an appraisal -- strategies plaintiffs either chose
not to pursue or later pursued without success after substituting counsel.
Plaintiffs fail to show grounds for reversal based on the referee’s use of
Mr. Hentschel.
24 See fn. 20, ante.
A dismissal without prejudice required the consent of the parties or the court’s
approval after a finding of good cause. Section 581, subdivision (e), provides: “After the
actual commencement of trial, the court shall dismiss the complaint, or any causes of
action asserted in it, in its entirety or as to any defendants, with prejudice, if the plaintiff
requests a dismissal, unless all affected parties to the trial consent to dismissal without
prejudice or by order of the court dismissing the same without prejudice on a showing of
good cause.” Thus, plaintiffs’ ability to obtain a dismissal after the commencement of
the trial was limited to a dismissal with prejudice. The trial court has the authority to
grant a dismissal without prejudice upon a showing of good cause. Plaintiffs do not
invoke this provision, do not provide any analysis or authority as to its application after
entry of an interlocutory judgment, do not claim the bad economy would have constituted
good cause, and do not claim that they would have pursued a dismissal (rather than delay)
after realizing they would lose the benefit of funds they had already invested in the
lawsuit.
33
V. Confirmation of Sale
Plaintiffs make various arguments seeking to reverse the trial court’s orders
confirming the sale and denying plaintiffs’ motion to set aside the sale. None of the
arguments has merit.
Section 873.510 states: “The referee appointed by the court to make a sale of the
property shall sell the property in the manner and following the procedures provided in
this chapter.” Upon making the sale, the referee shall make a report to the court.
(§ 873.710.) The referee, any party, or the purchaser, may move the court to confirm or
set aside the sale. (§ 873.720.)
Section 873.730 governs confirmation hearings and provides: “(a) At the hearing,
the court shall examine the report and witnesses in relation to the report. [¶] (b) The
court may confirm the sale notwithstanding a variance from the prescribed terms of sale
if to do so will be beneficial to the parties and will not result in substantial prejudice to
persons interested in the sale. [¶] (c) The court may vacate the sale and direct that a new
sale be made if it determines any of the following: [¶] (1) The proceedings were unfair
or notice of sale was not properly given. If there is no finding at the hearing of unfairness
or improper notice, the sale may thereafter not be attacked on such grounds. [¶] (2) The
sale price is disproportionate to the value of the property. [¶] (3) It appears that a new
sale will yield a sum that exceeds the sale price by at least 10 percent on the first ten
thousand dollars ($10,000) and 5 percent on the amount in excess thereof, determined
after a reasonable allowance for the expenses of a new sale.”
A. Private Sale or Public Auction
Plaintiffs argue the trial court erroneously believed the applicable procedure was
for a “ ‘public auction,’ ” yet the court “forgot” to hold a public auction. Plaintiffs fail to
prove their point.
Section 873.520 provides: “The property shall be sold at public auction or private
sale as the court determines will be more beneficial to the parties. For the purpose of
34
making this determination, the court may refer the matter to the referee and take into
account the referee’s report.”
The first and second amended interlocutory judgments specified a private sale.25
The publication of notice to the public also specified private sale.26
Plaintiffs claim that the referee’s motion to confirm the sale “erroneously conveys
that the sale [was] by public auction and will require ‘Court approved over bid required
by the statutes.’ ” However, we see nothing in the pages of the appellants’ appendix cited
by plaintiffs that says anything about public auction. Neither the notice of motion nor the
amended notice of motion say anything about public auction. The language plaintiffs cite
is actually from the referee’s disclosure document executed by the purchaser -- “Any
offer to purchase will be subject to Court confirmation of the sale and any Court
approved over bid required by the statutes.” Nothing in this document refers to public
auction. The quoted language relates to section 873.730, subdivision (c)(3), which says
that at the hearing to confirm the sale, the court may vacate the sale and direct a new sale
if “[i]t appears that a new sale will yield a sum that exceeds the sale price by at least 10
percent on the first ten thousand dollars . . . and 5 percent on the amount in excess thereof
. . . .” This statute is not limited to sales by public auction. If plaintiffs mean to suggest
that the word “bid” in the disclosure statement necessarily means public auction, they cite
no authority for any such proposition. We see no reason why a private seller could not
receive multiple bids from prospective purchasers in a private sale.
25 Both amended interlocutory judgments said: “The Property shall be partitioned by
sale, and the Court finds and determines that a private sale, rather than a public auction, is
more beneficial to the parties.”
26 The published notice reads in pertinent part: “David C. Norton, as duly appointed and
acting referee . . . will sell at private sale certain real property . . . .”
35
In their reply brief, plaintiffs argue for the first time that the issue is not between
private sale and “public auction,” but between private sale and “public sale,” meaning
any sale that has been publicly advertised. Plaintiffs argue that the procedure carried out
here was a “public sale,” and thus the sale violated the court’s order for a private sale.
However, this is not the argument made in plaintiffs’ opening brief, which specified
“ ‘public auction.’ ” We disregard new points raised for the first time in a reply brief.
(Reichardt v. Hoffman (1997) 52 Cal. App. 4th 754, 763-766.)
B. Compliance With Sale And Notice Procedures
Plaintiffs argue the trial court erred in confirming the sale, because the referee
failed to comply with sale and notice procedures of section 873.600 et seq. in various
respects. However, plaintiffs fail to show that any procedural defect caused them
substantial prejudice warranting reversal of the order confirming the sale. Indeed,
plaintiffs do not even discuss prejudice, a showing that is required to obtain reversal.
Section 873.730, subdivision (c), says the court “may” vacate the sale if it
determines “[t]he proceedings were unfair or notice of sale was not properly given.” The
statute thus gives the trial court discretion. The trial court in this case determined there
was no defect sufficient to set aside the sale. In order to obtain reversal of the trial
court’s decision, plaintiffs must show prejudice on appeal. (Cal. Const., art. VI, § 13;
§ 475.)
1. Credit Sale
Plaintiffs complain the published notice of sale said the sale must be for cash
rather than credit, yet the referee never asked the court or the parties whether a sale on
credit would be acceptable. Section 873.630 states: “The court may: [¶] (a) Direct a
sale on credit for the property or any part thereof. [¶] (b) Prescribe such terms of credit
as may be appropriate. [¶] (c) Approve or prescribe the terms of security to be taken
upon the sale . . . .” Section 873.650 states: “The court shall prescribe the contents of the
notice of sale . . . .”
36
Plaintiffs argue that they “made clear” at the April 23, 2012, hearing their desire to
purchase the property, but they wanted their existing interest in the property to be deemed
a credit.27 However, as we have seen, the record is not so clear. Mr. Shalaby, told the
court that plaintiffs would be “happy to buy” the property at the price of $465,000, which
“is way too low,” and they would be willing to offer more on contingencies of a credit
sale. Then, at the end of the hearing, plaintiffs’ counsel said they do not want the
property sold.
Thus, plaintiffs fail to show that they offered to buy the property, that they were
willing and able to pay all cash, or that the trial court would have allowed a credit sale.
Instead, plaintiffs say they did not expressly reject the idea of paying all cash and were
never given an opportunity to address the issue because the trial court never held a
hearing to confirm the sale. However, the motion to confirm the sale was scheduled for
hearing that day, and section 873.740 says the court may direct a sale to a new bidder at
the confirmation hearing if the new bidder submits “a written increased offer” that
exceeds the sale price by at least 10 percent on the first $10,000, and five percent on the
excess. Plaintiffs submitted no such written bid at the hearing or at any other time.
2. Sales Price
Plaintiffs next complain the published notice of sale did not mention the sale price.
Plaintiffs cite no authority requiring that the notice state a price. They claim section
873.650, subdivision (a), does so, but it does not. Section 873.650 provides: “The court
shall prescribe the contents of the notice of sale, which shall include a description of the
property, the time and place of sale, and a statement of the principal terms of sale. In
place of the principal terms of sale, the notice may refer to an order of the court or to a
written statement containing such information which may be inspected at the place of
27 Plaintiffs interest is about 65 to 70 percent. The exact percentage is disputed but is
not material to this appeal.
37
business of the referee or the referee’s attorney.” Subdivision (b) of section 873.650
provides that “[a] notice of private sale shall state a place where bids or offers will be
received and a day on or after which the sale will be made.” (Italics added.) Clearly, the
statutory notice provisions leave open the prospect of bids or offers in unknown amounts
being made by prospective buyers; yet there is no express provision requiring a set sales
price be included in the notice. Thus, the notice of sale here is consistent with the statute.
It said “[t]he referee shall entertain offers . . .” and indicated where “[w]ritten bids or
offers” would be received.
Plaintiffs argue the notice must specify a price, because otherwise, someone who
might want to submit an overbid at the confirmation hearing could not arrive at the
hearing prepared to bid because they would not know how much had been offered.
However, no statutory provision expressly requires a sales price to be stated in the notice.
Once an offer is made and accepted, the price offered must be set forth in the report of
the referee to confirm the sale. (§ 873.710, subd. (b)(3).) Here, the referee attached a
copy of his report to his motions to confirm the sale, and the report contained the sale
price to Soper. Thus, interested buyers had access to the amount on which they would
need to overbid prior to the hearing.
Plaintiffs fail to show a violation of the statute. Even assuming a violation,
plaintiffs have failed to show prejudice. The record demonstrates they knew the amount
of the offer by the time of the hearing; thus, the lack of that information did not prevent
them from making a written overbid.
3. Parcel Numbers
Plaintiffs claim the referee omitted one of the parcel numbers in the published
notice of sale and got one of the parcel numbers wrong in the sales contract. However,
our review of the record reveals that the published notice does contain both numbers.
Although one reference in the sales agreement has a typographical error, there are other
references in the sales agreement that are accurate.
38
Plaintiffs fail to show any variance warranting reversal. (§ 873.730, subd. (b)
[“The court may confirm the sale notwithstanding a variance from the prescribed terms of
sale if to do so will be beneficial to the parties and will not result in substantial prejudice
to persons interested in the sale.”].)
4. Dates
Plaintiffs say the published notice of sale incorrectly referred to the May 4, 2011,
amended interlocutory judgment, instead of the May 23, 2011, second amended
interlocutory judgment. However, the only difference was that the latter document
expressly appended the legal description of the property. Plaintiffs nevertheless claim the
publication was defective, because section 873.640 says notice of sale in a partition shall
be given in the manner required for notice of sale of property upon execution (§ 701.520
et seq.), and section 701.540 mandates that notice of sale be published not less than 20
days before acceptance of offers. However, plaintiffs cite no authority supporting their
position that such a technical defect would warrant reversal of the court order confirming
the sale absent a showing of prejudice, and clearly no one was harmed in this case
because anyone interested in making an offer had far more than 20 days to do so before
the referee accepted Soper’s offer in January 2012 -- several months after publication of
notice.
5. Competitive Bids
Plaintiffs claim the published notice of sale precluded competitive bids by
referring to a “ ‘private sale’ ” instead of a “ ‘public sale.’ ” Again, plaintiffs fail to show
that bidders cannot compete in a private sale.
Elsewhere in their brief, plaintiffs claim a private sale in a partition action is not
subject to confirmation by the court but is instead governed by section 873.710, which
according to plaintiffs merely says that “[u]pon making a sale of property, the referee
shall report the sale to the court.” (§ 873.710, subd. (a).) However, subdivision (b)(8) of
the same statute says the referee’s report shall contain material facts relevant to the
39
confirmation proceeding, which implies a confirmation proceeding was contemplated by
the Legislature.
We conclude plaintiffs fail to show any procedural defect warranting reversal.
C. Marketing the Property
Plaintiffs argue the trial court erred in confirming the sale, because marketing of
the property was woefully lacking.
The Kittermans say this issue is subject to substantial evidence review. They cite
East Shore Co. v. Richmond Belt Railway (1916) 172 Cal. 174, 180, which applied
substantial evidence review in a partition action, but pursuant to a former statute which
said the court “ ‘must order a partition’ ” “ ‘upon the requisite proofs being made.’ ”
(Ibid.) Here, the statutes at issue give the trial court discretion whether to confirm the
sale or remove the trustee, though certainly the state of the evidence is relevant to
whether the trial court abused its discretion.
Norton testified he became a real estate broker around 1970, retired five years
before testifying, and had 35-40 years of experience in the local real estate market. His
marketing efforts for this property were “[c]ontacting by phone, email all the people . . .
that I have dealt with, the successful brokers in the Sacramento Valley where most of the
owners up at La Porte live. Those are secondary homes up at La Porte. They all have
brothers and sisters and friends who might want another piece of property.” He also
contacted his “developer friends, engineers, architects, everybody who the small
developer works for . . . .” He was aware of the MLS but did not list this property on
MLS because MLS “does not work in the remote properties that I deal with. It just is a
waste of money, which is your client’s money, and my system has worked for the last
forty years. Very successfully.” Norton did not advertise the property on the Internet,
except on his own website. He did not place newspaper advertisements, other than the
mandatory publication of notice, because it was his experience that they do not work very
well; persons who might be interested follow the public notices.
40
Plaintiffs argue the marketing was inadequate because the referee did not list the
property on MLS, did not do any newspaper advertising other than the required
publication of notice, and did not list a sale price.
However, plaintiffs presented no evidence that a MLS listing is the sine qua non of
adequate marketing and presented no evidence refuting Norton’s explanations for his
choices.28 As to not listing a sale price, plaintiffs fail to show how this prejudiced them.
Since they think the $465,000 offer is way too low, any listed price that would have
satisfied plaintiffs might not have yielded any offers.
Plaintiffs fail to show grounds for reversal based on marketing efforts.
D. Adequacy of Sales Price
Plaintiffs argue the sales price was disproportionate to the value of the property.
They cite the referee’s testimony that someone else sold 12.55 acres for $495,000 in June
2011, with 1,440 feet of lake frontage. However, when asked to justify selling this 88
acres of land, which is seven times bigger, for the same price, the referee explained that
the other land was worth more, because it had already been subdivided. The referee said
the land that is the subject of this case would be worth much more, “a strong million
bucks” if it were subdivided.
Plaintiffs offered no evidence in rebuttal at the hearing in the trial court. Instead,
they simply say on appeal that “[l]ogic compels reason here. The market value of a
‘project’ that required subdividing, but would be worth ‘a strong million bucks’ after
subdividing, cannot reasonably be a mere $465,000.” Yet, plaintiffs’ own experience
defeats their argument. The record shows that subdividing the property was so
28 Plaintiffs’ lawyer, Mr. Shalaby, said at the hearing that he is a real estate broker and
MLS is realtors’ biggest resource. However, this was argument, not evidence. At oral
argument, Mr. Shalaby acknowledged that there was no expert testimony calling into
question the adequacy of the referee’s marketing efforts. The trial court did not abuse its
discretion by finding Norton’s marketing adequate.
41
problematic that plaintiffs abandoned the effort. In any event, plaintiffs’ argument does
not constitute evidence.
We conclude plaintiffs fail to show reversible error regarding the sale of the
property.
VI. Denial of Motion for Section 473 Relief
Plaintiffs challenge the trial court’s order denying their section 47329 motion for
relief from excusable neglect, to allow plaintiffs to submit a new appraisal. However,
when plaintiffs filed this section 473 motion on June 8, 2012, seeking to set aside the
April 2012 orders confirming the sale and denying plaintiffs motion to set aside the sale,
plaintiffs had already filed a notice of appeal from the April orders on April 27, 2012. A
notice of appeal deprives a trial court of jurisdiction to hear a section 473 motion
regarding the matter that is the subject of the appeal. (§ 916; Elsea v. Saberi (1992) 4
Cal. App. 4th 625, 629; Copley v. Copley (1981) 126 Cal. App. 3d 248, 298; Beresh v.
Sovereign Life Insurance Co. (1979) 92 Cal. App. 3d 547, 552.)
No one discusses this point in the context of the June 2012 motion. While this
appeal was pending, plaintiffs filed in this court a motion for relief from appellate stay in
order to pursue in the trial court a second section 473 motion on different grounds.
Plaintiffs’ motion in this court for relief from appellate stay argued appellate stay should
not apply to section 473 motions but in any event relief from stay should be granted in
order to pursue a different section 473 motion. This court denied the motion for relief
from appellate stay with regard to the second section 473 motion.
29 Section 473, subdivision (b), states: “The court may, upon any terms as may be just,
relieve a party or his or her legal representative from a judgment, dismissal, order, or
other proceeding taken against him or her through his or her mistake, inadvertence,
surprise, or excusable neglect.”
42
Since the trial court had no jurisdiction over the first section 473 motion, plaintiffs
cannot show any prejudice in the trial court’s order denying the section 473 motion.30
Moreover, plaintiffs failed to show any basis for section 473 relief. The only
occasion for application of section 473 is where a party is unexpectedly placed in a
situation to his injury without fault or negligence of his own and against which ordinary
prudence could not have guided. (Hearn v. Howard (2009) 177 Cal. App. 4th 1193,
1206.) Here, plaintiffs were notified by Mr. Hentschel of the amount of the sale price
and that if they were unhappy they could seek an appraisal. This was on January 25,
2012 -- three months before the April 23, 2012, hearing on the motion to confirm the
sale. Mr. Shalaby took over the case for plaintiffs on March 12, 2012 -- more than a
month before the hearing on the motion to confirm the sale. Plaintiffs did not seek out an
appraiser until after the hearing. Plaintiffs’ characterization of their new lawyer’s “race[]
against time” to review a “decade-old court file” does not excuse plaintiffs’ failure to
seek an appraiser until after the hearing. It was plaintiffs’ complaint all along that the
offer was too low. Their failure to seek an appraisal earlier was not excusable.
Plaintiffs argue the trial court abused its discretion by considering untimely and
unserved oppositions to the section 473 motion. We disregard this point, which is
unsupported by citation to the record. (Kim v. Sumitomo Bank (1993) 17 Cal. App. 4th
974, 979.) Moreover, our conclusion that there are no grounds for reversal is not based
on the oppositions to the section 473 motion, but upon the deficiency of plaintiffs’ own
showing in their moving papers.
30 The trial court did have jurisdiction to hear the new trial motion heard after the June 8,
2012, section 473 motion. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal. 4th
180, 191 [“a motion for a new trial is collateral to the judgment and may proceed despite
an appeal from the judgment”].)
43
Plaintiffs argue they should have had control to decide the “fate” of their lawsuit.
They cite no authority supporting their position. The fate of their lawsuit was decided by
the May 2011 interlocutory judgment, from which plaintiffs did not timely appeal.
Although their April 27, 2012, notice of appeal purported to appeal from the May 2011
interlocutory judgment, it was too late, as noted by the Kittermans. (Cal. Rules of Court,
rule 8.104(a)(3); see fn. 6, ante.)
Plaintiffs are not entitled to section 473 relief.
VII. Motion For Sanctions
The Kittermans move for sanctions for a frivolous appeal filed to cause delay,
under section 907 and California Rules of Court, rule 8.276. Section 907 states: “When
it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it
may add to the costs on appeal such damages as may be just.” Rule 8.276 provides in
pertinent part: “(a) Grounds for sanctions On motion of a party or its own motion, a
Court of Appeal may impose sanctions, including the award of denial of costs under
rule 8.278, on a party or an attorney for: [¶] (1) Taking a frivolous appeal or appealing
solely to cause delay; [¶] (2) Including in the record any matter not reasonably material
to the appeal’s determination; [¶] (3) Filing a frivolous motion; or [¶] (4) Committing
any other unreasonable violation of these rules.”
The Kittermans seek a total of $48,450 in sanctions.
An appeal is frivolous only when: (1) it is prosecuted for an improper motive, to
harass the respondent or delay the effect of an adverse judgment or where it indisputably
has no merit; or (2) any reasonable attorney would agree that the appeal is totally and
completely without merit. (In re Marriage of Flaherty (1982) 31 Cal. 3d 637, 650;
Personal Court Reporters, Inc. v. Rand (2012) 205 Cal. App. 4th 182, 191.) The first
standard is tested subjectively, with the focus on the good faith of the appellant and
counsel. (Personal Court Reporters, Inc., at p. 191.) The second is tested objectively.
(Ibid.) While each of the two standards provide independent authority for a sanctions
44
award, in practice the two standards usually are together, with one providing evidence of
the other, e.g., a total lack of merit is evidence that the appeal was filed only for delay.
(Ibid.)
Here, we will not say the appeal is totally and completely without merit, because
there were irregularities in variance with the statutory procedures, e.g., the referee’s use
of plaintiffs’ lawyer in violation of section 873.120, subdivision (c).
The motion for sanctions is denied.
DISPOSITION
The trial court’s orders are affirmed. The Kittermans’ motion for sanctions is
denied.
MURRAY , J.
We concur:
BLEASE , Acting P. J.
DUARTE , J.
45