Opinion
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. EC043484 Michelle Rosenblatt, Judge.
Hester Nash, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
SUZUKAWA, Judge
In these consolidated appeals, defendant Hester Nash seeks review of interim orders concerning the partition by sale of the parties’ home, the involuntary dissolution of the parties’ limited liability company, the appointment of a receiver, damages, attorney fees, and an accounting. To the extent the interim orders directed the appointment of a receiver, a partition sale, and the involuntary dissolution, winding up, and liquidation of the business, they are directly appealable. (Code Civ. Proc., § 904.1, subds. (a)(7) [appeal may be taken from an interim order appointing a receiver], (a)(9) [appeal may be taken “[f]rom an interlocutory judgment in an action for partition determining the rights and interests of the respective parties and directing partition to be made”]; Reynolds v. Special Projects, Inc. (1968) 260 Cal.App.2d 496[interlocutory decree ordering winding up of corporation was final, notwithstanding its title, and therefore appealable].) As to the issues addressed in this opinion, the orders are affirmed.
All further undesignated statutory references are to the Code of Civil Procedure.
BACKGROUND
Plaintiff Chris Shiohama and defendant Hester Nash, an unmarried couple, were the sole owners of a limited liability company, Global Domination Industries, LLC (GDI, the company, or the business), through which they operated their home internet business. After their personal and business relationships deteriorated, Shiohama moved out of their home and ceased working for their business. After the parties tried but failed to divide their assets voluntarily, Shiohama filed suit in September 2006 for partition by sale of their home, involuntary dissolution of GDI, accounting, injunctive relief, appointment of a receiver, and damages.
I. The March 25, 2008 Interim Order and Appeal
The trial court bifurcated the issues and tried the partition and dissolution issues first, leaving the accounting issues for a later date. Following the trial of the partition and dissolution issues, the court entered a March 25, 2008 interim order from which plaintiff appealed on June 6, 2008 (No. B208390) after her motion for new trial was denied. The court ruled in the March 25 order as follows.
A. Partition by Sale
The court found that the parties owned their home as tenants in common, and that Shiohama was entitled to exercise his statutory right to partition by sale. The order explained “that under the circumstances, sale and division of the proceeds is more equitable than division of the property. The Court finds that there is no written agreement providing for appraisal by any other method. The Court hereby appoints a referee to monitor the sale of the Subject Property. All expenses regarding the sale of the Subject Property shall be paid by Plaintiff and Defendant Nash equally. No portion of such expenses shall be paid by Defendant GDI. The property is to be sold at a private sale and the proceeds are to be divided in accordance with this interlocutory judgment.”
B. Involuntary Dissolution
Before discussing the dissolution order, we briefly note that GDI’s Operating Agreement provided for the involuntary dissolution, winding up, and liquidation of the business upon the occurrence of certain “liquidating events, ” which included “[t]he happening of any other event that makes it unlawful or impossible to carry on the business of the Company.” We further note that Corporations Code section 17351, subdivision (a)(4) states that “[p]ursuant to an action filed by any manager or by any member or members, a court of competent jurisdiction may decree the dissolution of a limited liability company whenever any of the following occurs: [¶]... [¶] (4) The management of a limited liability company is deadlocked or subject to internal dissention.”
In the March 25 order, the trial court ordered the involuntary dissolution of GDI, stating that “the management of Defendant GDI is deadlocked and is subject to internal dissension. [¶] The Court finds that Defendant Nash changed the locks on the Subject Property, changed the [company’s] bank account [by opening a new account in her name only, ] and did not give Plaintiff further access to the records of Defendant GDI.”
In light of Shiohama’s exclusion from GDI’s premises, books, assets, and accounts, the trial court appointed Kevin Singer as receiver and referee. As referee, Singer was to oversee the sales of both the home and business. As receiver, Singer was “to determine the value and manage the assets of the business, to sell the business, report to the Court and facilitate the division of the proceeds amongst the parties.”
The March 25 order directed Singer to oversee the sale of GDI after obtaining three independent appraisals, unless the parties agreed on a reasonable value that met his approval. The order allowed either party to “make an offer to purchase the business interest of the other prior to or once the business is on the market.”
II. The Asset Sale
Before Singer could obtain three independent appraisals, GDI’s assets were liquidated in June or July 2008 at a sale by referee. The sale by this method was precipitated by GDI’s loss of its merchant bank account through which it processed credit card sales. Given the nature of GDI’s business (the internet sale of vintage adult photos), it was difficult to obtain a new merchant bank account and GDI was rapidly losing income. In light of this development, Singer filed a June 13, 2008 ex parte application seeking to hold a sale by referee. (Citing § 873.610 [“The court may, at the time of trial or thereafter, prescribe such manner, terms, and conditions of sale not inconsistent with the provisions of this chapter as it deems proper for the particular property or sale.”].)
After the trial court approved the sale, Nash sought a stay pending her appeal from the March 25 order. When she was unable to post the $337,000 undertaking (later reduced to $295,000) that was ordered by the court, she petitioned for an immediate stay and writ of supersedeas, which was denied by this court on September 9, 2008.
At the sale by referee, Nash purchased GDI’s assets for $116,000. On July 18, 2008, the court ratified the sale.
III. The Accounting Trial, December 4, 2008 Interim Order, and Appeal
Following the sale of GDI’s assets, the court held a trial of the accounting issues. It then entered the December 4, 2008 order titled “Proposed Interlocutory Judgment After Completion of the Accounting Phase of Trial, ” from which Nash appealed on December 18, 2008. (No. B212855.) The two appeals (Nos. B208390, B212855) were consolidated on February 6, 2009.
According to the December 4 order, the parties’ home had not yet been sold. The December 4 order directed the dissolution of GDI, ordered the sale of the home’s furnishings, and awarded judgment for Shiohama on the accounting issues “in the amount of $103,640 plus attorney fees and costs in an amount to be determined.” The December 4 order reserved the court’s “jurisdiction to resolve all disputes until the Subject Real Property has been sold, the final Referee/Receiver report has been reviewed and approved and any funds remaining are distributed.”
The December 4 order described the remaining issues as follows: “There is $81,033.63 remaining of the assets of GDI. The Lemp Avenue property [the couple’s residence] has not yet sold. The real estate market has been in a downturn since the commencement of this action. As of the end of September 2008, fees for Kevin Singer totaled $32,302. [¶] The Court’s judgment at this time is an interlocutory judgment. The Court will issue a proposed final judgment when (1) the Lemp Avenue property has been sold and there has been a Court confirmation/overbid hearing; (2) the Court has received the Referee/Receiver’s final report and accounting[;] and (3) the Court has received the Plaintiff’s Memorandum of Costs detailing the attorney’s fees requested by Plaintiff. The Court retains jurisdiction to effectuate any further orders necessary to complete the partition of real and personal property and the allotment and distribution of proceeds of the sale of the assets of GDI LLC as well as to hear any further objections to the accounting of the Referee/Receiver.”
On April 21, 2009, the trial court entered a “Modified Judgment and Statement of Decision After Completion of the Accounting Phase of Trial.” The April 21 order, which was also interlocutory, increased the amount of Shiohama’s judgment to “$194,760.50 plus attorney fees on the partition and costs in an amount to be determined.” The April 21 order further stated that the “judgment is to be paid, to the extent there are funds to do so, from defendant’s share of the assets of GDI following payment of the creditors and the referee.” The court again reserved jurisdiction to resolve all disputes until the sale of the home, the approval of the final referee/receiver report, and distribution of any remaining funds.
On December 2, 2009, Nash petitioned for writ of supersedeas or immediate stay pending appeal, seeking a stay of the hearing on the receiver’s motion to approve the final acts of dissolution, and to approve his final fees and discharge. The petition was denied by this court on December 17, 2009.
DISCUSSION
Before addressing the issues on appeal, we briefly address the “Motion for Factual Determinations on Appeal” that was filed by Nash, a pro se litigant, after Shiohama elected not to file a respondent’s brief. As a general rule, issues not raised in the opening brief are deemed to be waived. (Reed v. Mutual Service Corp. (2003) 106 Cal.App.4th 1359, 1372, fn. 11.) The rule exists largely as a matter of fairness and we see no reason to depart from it here. Accordingly, the motion is denied.
Turning to the opening brief, Nash raises numerous issues that will be addressed as follows: (1) the right to partition; (2) the finding of deadlock; (3) the appointment of a receiver; (4) the sale by referee and involuntary dissolution order; (5) the accounting judgment; and (6) judicial bias. Because no final award of attorney fees and referee/receiver fees has been entered, we conclude that those issues are not yet ripe for review.
I. The Right to Partition
In general, the partition of concurrent property interests is a matter of right, unless barred by waiver or altered by agreement. (§ 872.210, subd. (b); Harrison v. Domergue (1969) 274 Cal.App.2d 19, 21; 12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 72, p. 119.)
The right to partition is “subject to waiver which may be effected by an implied as well as an express agreement when an inequity would result. (Thomas v. Witte, 214 Cal.App.2d 322.)” (Pine v. Tiedt (1965) 232 Cal.App.2d 733, 738.) An implied waiver may be found based on evidence “that the parties had committed the property to a specific use for a certain period of time.” (Id. at p. 739.) It may also be found based on evidence of a “writing which requires one party to first offer to sell his interest to the other.” (Schwartz v. Shapiro (1964) 229 Cal.App.2d 238, 253.) However, equitable factors are relevant to this determination and partition may be ordered when it would be inequitable to enforce an implied waiver under the circumstances. (Id. at p. 256.) According to the example cited in Schwartz, “‘If, after an opportunity to purchase the interest of the petitioner under the terms of the contract, the defendant Rhodes should refuse to avail himself of this privilege, the right to partition the property would then arise.’” (Id. at p. 254, quoting Rhodes v. Lane (1947) 202 Ga. 608, 610.)
In this case, Nash contends that, given the undisputed evidence of her right of first refusal, the trial court erred in failing to find that Shiohama had waived the right to partition. According to Shiohama’s declaration, the parties had orally agreed that Nash would buy “out my portion of the home we owned together, and she would buy out my interest in the Subject Business as well.”
Shiohama argued below that it would be inequitable to enforce an implied waiver because Nash’s right of first refusal was not in writing (citing Civ. Code, § 1624 [statute of frauds]) and, in any event, it had expired because it was not exercised within a reasonable time. (Citing Schwartz v. Shapiro, supra, 229 Cal.App.2d at p. 254.) Shiohama stated below: “The parties agreed to no specific time in which to keep the right of first refusal open. Plaintiff has allowed Defendant 15 months to either purchase his interest in the Subject Property or to place it on the market for sale but Defendant did not take any actions toward that goal.... [P]laintiff cannot be forced to wait indefinitely and respectfully submits that his application for an order to market and sell the Subject Property immediately be granted.”
Nash contends that because her failure to purchase Shiohama’s interest in the home was caused by Shiohama’s “unfair demand that Nash pay a surplus to him for the property or lose it in this action, ” Shiohama is estopped to deny the existence of an implied waiver. However, Nash cites only the evidence that arguably supports her position that Shiohama’s price was unfair. She does not address the conflicting evidence Shiohama presented to convince the trial court that he was entitled to a partition sale. Given that a reviewing court is without power to substitute its deductions for those of the trial court and all conflicts in the evidence must be resolved in favor of the respondent (Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 60), we conclude that Nash has failed to establish the existence of reversible error.
Nash states that Shiohama “agreed with the $650,000 [record citation] value she used for the house that was based on the value the bank had given it when they refinanced the home equity line of credit a few months prior.... Nash had offered to pay Shiohama exactly the same net amount he would have received in a sale to a third party, but he believed that Nash should pay him more than that. Eight percent more, specifically, the standard amount of closing costs and broker fees, which Nash had considered in doing her calculation of their equity. [¶] Shiohama said he would discuss the offer with an accountant he knew.” “He never actually turned down Nash’s offer, although they had several emotional discussions about it. When Shiohama first raised the possibility of a partition suit, Nash pointed out that going to court to try to twist her arm to pay him more than he would receive from anyone else would simply eat up all the extra he was trying to get even if he got it. He said he understood that.”
II. The Finding of Deadlock
Nash contends that the record lacks substantial evidence to support the trial court’s finding that the parties were deadlocked as to their management of GDI. The contention lacks merit.
In the March 25 order, the court cited as supporting evidence the testimony “that Defendant Nash changed the locks on the Subject Property, changed the bank account and did not give Plaintiff further access to the records of Defendant GDI.” Although Nash challenges the credibility of this testimony, she correctly concedes that “the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact.” (Evid. Code, § 411.)
Given the trial court’s determination that the testimony was credible, we are bound by that determination in the absence of a compelling reason to disregard it. The rule is well established that “‘[c]onflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]’” (People v. Jones (1968) 268 Cal.App.2d 161, 165.)
Nash contends that the finding of deadlock was based on evidence of “disagreements about two advertising expenditures, ” which was insufficient to establish that the parties were deadlocked. However, as noted above, there was other supporting evidence not mentioned in Nash’s brief. An appellant must state fully, with transcript references, the evidence that is claimed to be insufficient to support the challenged findings. Where this rule is ignored, the reviewing court need not make an independent search of the record. (Haynes v. Gwynn (1967) 248 Cal.App.2d 149, 151.) “‘When a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact.’ [Citations.]” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)
III. The Appointment of a Receiver
The trial court may appoint receivers in “cases where necessary to preserve the property or rights of any party.” (§ 564, subd. (b)(9).) Subject to the court’s control, receivers may bring and defend actions, take possession of the property, receive rents, collect, compound, and compromise debts, make transfers, and “do such acts respecting the property as the court may authorize.” (§ 568.) “A receiver may, pursuant to an order of the court, sell real or personal property in the receiver’s possession upon the notice and in the manner prescribed by Article 6 (commencing with Section 701.510) of Chapter 3 of Division 2 of Title 9. The sale is not final until confirmed by the court.” (§ 568.5.)
In this case, Shiohama alleged in the complaint that a receiver was necessary to oversee the business because Nash had assumed complete control of GDI’s premises, books, assets, and accounts, and had misappropriated company assets. The complaint alleged that a receiver was needed to prevent material harm to Shiohama’s interest in the company.
After conducting a hearing, the trial court found that a receiver was necessary to preserve GDI’s assets and appointed Singer to serve as receiver. Nash challenges this appointment, stating that “the Corporations Code statute is intended to prevent such an appointment” and that Singer “was supposed to be simply a ‘referee....’” Nash argues that Singer was given the “task of ‘running’ the company and the business as a receiver, without any hearing, and caused irreparable harm in the process.”
The court appointed Singer as a receiver after a hearing. The opening brief fails to explain why the appointment conflicted with or was precluded by the Corporations Code. The contention, which was raised without adequate argument or citation to authority, merits no further discussion. (Krain v. Medical Board (1999) 71 Cal.App.4th 1416, 1426 [a reviewing court is not obligated to develop the appellant’s arguments].)
IV. The Sale by Referee and Involuntary Dissolution Order
Nash contends that the trial court erred in allowing a sale by referee of GDI’s assets after she had elected to purchase Shiohama’s interest pursuant to Corporations Code section 17351. Given that the sale by referee was approved and confirmed by the court and the dissolution and winding up of GDI is nearly, if not entirely, finished, we fail to perceive what relief, if any, is available at this point. In any event, in order to prevail, Nash must explain, with citations to relevant legal authority, why the trial court erred in confirming the referee’s sale. Given Nash’s failure to do so, further discussion is not warranted. (See Krain v. Medical Board, supra, 71 Cal.App.4th at p. 1426.)
V. The Accounting Judgment
Nash contends that the trial court’s “accounting judgment and statement [of decision] were completely wrong in almost every possible detail.” However, she relies solely on the “Objections and request for a statement of decision” that were filed before the court issued its “Modified Judgment and Statement of Decision After Completion of the Accounting Phase of Trial” on April 21, 2009. She offers no explanation as to why the April 21 order was erroneous.
Nash also argues that the trial court lacked jurisdiction to conduct the accounting trial while her consolidated appeals from the March 25 and December 4 orders were pending. In support of this argument below, Nash cited Williams v. Wells Fargo Bank (1941) 17 Cal.2d 104, 107, and Neusted v. Skernswell (1945) 69 Cal.App.2d 361, 370, for the proposition that the perfecting of an appeal from an interim order of partition operates as a stay without bond. However, section 917.4, which was enacted in 1968, provides in relevant part that “[t]he perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the judgment or order appealed from directs the sale, conveyance or delivery of possession of real property which is in the possession or control of the appellant or the party ordered to sell, convey or deliver possession of the property, unless an undertaking in a sum fixed by the trial court is given....” Nash does not explain why section 917.4 does not apply to this case.
VI. Judicial Bias
While this action was pending, Singer filed an unlawful detainer action against Nash, which, as a related case, was transferred to Judge Rosenblatt, the bench officer in this case. Nash then filed a section 170.6 motion to disqualify Judge Rosenblatt, and the unlawful detainer action was sent to another department.
Nash contends on appeal that following her disqualification from the unlawful detainer action under section 170.6, Judge Rosenblatt was “without jurisdiction to sever the consolidated cases, ” citing Geldermann, Inc. v. Bruner (1991) 229 Cal.App.3d 662. Geldermann is distinguishable, however, because it did not arise under section 170.6, but involved the voluntary disqualification of a trial judge under section 170.3. Accordingly, Nash’s reliance on Geldermann is misplaced. Nash has failed to provide any argument or authority to support her allegation of bias.
DISPOSITION
As to the issues addressed in this opinion, the March 25, 2008 and December 4, 2008 orders are affirmed. The parties are to bear their own costs on appeal.
We concur: EPSTEIN, P.J. MANELLA, J.
She also argues that the trial court erroneously excluded evidence, but because this apparently occurred at the accounting trial held months after the partition order was entered, it had no bearing on the order granting a partition by sale.