Opinion
D071576
06-27-2018
JIMMY SIKES, Plaintiff and Appellant, v. THOMAS SIKES et al., Defendants and Respondents, RONALD TORNCELLO, Claimant and Appellant.
Lieb & Lieb and Jack R. Lieb, Richard Leo Fahey for Plaintiff and Appellant. No appearance for Defendants and Respondents. Keegan & Baker and Jason Edward Baker for Claimant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2013-00064770-CU-OR-CTL) APPEALS from an order of the Superior Court of San Diego County, Joel M. Pressman, Judge. Order affirmed; cross-appeal of Jimmy Sikes dismissed. Lieb & Lieb and Jack R. Lieb, Richard Leo Fahey for Plaintiff and Appellant. No appearance for Defendants and Respondents. Keegan & Baker and Jason Edward Baker for Claimant and Appellant.
Ronald Torncello, a third-party creditor, appeals the trial court's order on his motion for priority over the sales proceeds in a separate partition action between Jimmy Sikes and Thomas Sikes. Torncello contends the trial court erroneously (1) prioritized Jimmy's monetary claim to Thomas's 50 percent share of the judgment instead of prioritizing Torncello's judgment lien; (2) granted Jimmy attorney fees that were not properly apportioned between those incurred in the partition action, which were for the common benefit, and those that were not; and (3) granted Jimmy's request for 100 percent of the expenses he incurred in improving a real property from Thomas's portion of the judgment, although Jimmy was entitled to only 50 percent.
We refer to the brothers by their first names to avoid confusion, and not out of disrespect.
On cross-appeal of the same order, Jimmy contends no substantial evidence showed Torncello had complied with the statutory requirements for creating a valid lien. We affirm the order and dismiss the cross-appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Sikes v. Sikes (Sup. Ct. San Diego County, 2015, No. 37-2013-00064770-CU-OR-CTL ) (Sikes Case)
In February 2013, a probate court ruled on a petition for final distribution by disbursing Mary Peng Sikes's estate valued at $846,712.89. Among other things, it awarded to Jimmy and Thomas, as tenants in common, real property located on Broadmoor Avenue in La Mesa, California (Broadmoor property) and four other properties located in different California counties.
In August 2013, Jimmy sued Thomas and his wife, Lisa Sikes, who were cotrustees of the Sikes Family Trust UDT, alleging causes of action for promissory estoppel, unjust enrichment, partition, money paid, and accounting. Jimmy alleged Thomas misappropriated money and real property from their mother's estate and denied Jimmy his share of the properties. Jimmy alleged that he and his wife were living on the East Coast when Thomas induced them to move to San Diego county, promising rent-free housing with Thomas and his wife at the Broadmoor property. Therefore, Jimmy and his wife incurred significant expense and moved here. However, after Jimmy spent money fixing up the Broadmoor property, he and Thomas had a dispute and Thomas wrongfully excluded Jimmy and his wife from the property, forcing them to pay for alternative housing. Thomas and his wife remained in the property without paying rent. Jimmy requested the court partition the parties' assets "for the common benefit of the parties, to preserve and secure to each of them their respective interest and rights in the [s]ubject [p]roperties, including costs which [Jimmy] has incurred, and will incur, relating to the partition herein, including reasonable attorney's fees."
In October 2013, Jimmy filed a lis pendens on each of the five properties.
Thomas and Lisa Sikes cross-complained against Jimmy for damages, alleging causes of action for assault and battery, negligence, fraud/misrepresentation, intentional infliction of emotional distress, and negligent property damage.
In October 2015, the court entered an interlocutory judgment, finding that Thomas had failed to distribute to Jimmy his undivided one-half fee interest in the five properties. The court ordered the properties sold and the proceeds from Thomas's share awarded to Jimmy for monies owed plus interest ($50,436.51); reimbursement for the cost of improvements to the Broadmoor property ($31,588.41); one half of the reasonable rental value of the Broadmoor property from March 2013 through May 2015 ($37,350.00); and out-of-pocket housing costs ($27,550.00). The court reserved jurisdiction over the parties to ensure enforcement of the interlocutory judgment.
In September 2016, after Jimmy sold two of the properties for a total of $660,500, he moved for a superior court order to disburse the net sales proceeds to himself in the amount of $522,796.92, including his one-half share of those sales proceeds ($295,349.37) plus $227,447.55 of Thomas's half. Specifically, Jimmy sought reimbursement for his costs incurred in "protecting, preserving and selling" the Broadmoor property ($24,885.09), attorney fees ($23,461.05), costs ($2,217.43), expert fees ($1,250.00), estate assets Thomas wrongfully withheld ($68,941.91), out-of-pocket costs of improvement to the Broadmoor property ($34,928.99) and reasonable rental costs of the Broadmoor property ($71,763.08). Torncello's Motion for Priority in the Sikes Case
In September 2016, Ronald Torncello intervened in Sikes, supra, (No. 37-2013-00064770-CU-OR-CTL) as a judgment creditor under Code of Civil Procedure, section 708.430, subdivision (b). He claimed Thomas was currently serving an eight-year prison sentence for attacking then 76-year-old Torncello in a road rage incident. On August 14, 2015, Torncello obtained a judgment against Thomas for $550,166.37. On October 7, 2015, Torncello recorded an abstract of that judgment. On October 23, 2015, he filed a lien in the Sikes case under section 708.410 et seq. Torncello moved for an order that his judgment receive priority over Thomas's recovery in the partition action, and over Jimmy's monetary award. Torncello argued that under section 697.380, subdivisions (c) and (d), his judgment warranted first in time priority. Torncello alternatively sought amendment of the court's interlocutory judgment.
Undesignated statutory references are to the Code of Civil Procedure.
We grant Torncello's request that we take judicial notice of his judgment against Thomas, an abstract of judgment recorded October 2015, a notice of lien filed October 2015, a minute order in the Sikes v. Sikes case, and the interlocutory judgment filed October 2015.
The Court's Rulings
In November 2016, the court granted Jimmy's motion to disburse sales proceeds in accordance with the interlocutory judgment, awarding him $522,796.92 apportioned as requested. The court concluded Thomas was entitled to the remaining $70,766.56 from the sales proceeds, and it was "the only sum to which any creditor with a valid lien could seek to obtain in satisfaction of a valid lien from the proceeds of the sale [of the real properties]."
In a separate order (Torncello Order), the court found Torncello had created a valid lien under section 708.410 et seq., and exercised its discretion to award Torncello $70,766.56 of the remainder of Thomas's portion of the sales proceeds. The court rejected Torncello's claim that the lien should be applied to Thomas's 50 percent share of interest in the real property prior to the monetary damages reduction, concluding instead that section 708.470 aims to provide a lien only against assets in which the debtor, Thomas, has an interest, and "[t]o rule otherwise would unjustly enforce a judgment lien against a non-debtor."
DISCUSSION
I. Torncello's Appeal
Torncello concedes: "There is no dispute that [Jimmy's] quiet title claim (styled as a partition claim) relates back to his earlier filed lis pendens to obtain [his] 50 [percent] interest in the [p]roperties (and Torncello is not attempting to attach [Jimmy's interest)[.]" (Some italics omitted.) Nonetheless, Torncello argues the court erroneously prioritized Jimmy's monetary claim to Thomas's 50 percent share of the sales proceeds, and instead should have given priority to Torncello's judgment lien created under section 697.310, which was first in time. Torncello argues Jimmy never recorded the abstract of judgment of the interlocutory judgment; therefore, Jimmy did not have a valid real property judgment lien on the properties sold. Torncello further argues that the lis pendens Jimmy recorded did not secure Jimmy's rights to monetary claims against Thomas's portion of the interlocutory judgment. A. Legal Principles and Standard of Review
"It is well settled that the estate of a decedent vests, subject to administration, in his heirs or devisees and legatees immediately upon his death [citations], and a devise given to more than one person generally vests in them as owners in common. [Citation.] Before distribution, a creditor may obtain a judgment lien on the interest of his debtor as heir or devisee and legatee of an estate, and he may execute upon the debtor's interest at that time." (Noble v. Beach (1942) 21 Cal.2d 91, 94.)
"A co-owner of real or personal property may bring an action for partition. [Citation.] 'The primary purpose of a partition suit is . . . to partition the property, that is, to sever the unity of possession." (LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 493; see also 14859 Moorpark Homeowner's Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1404-1405 [" 'partition' " is " 'the procedure for segregating and terminating common interests in the same parcel of property' "].) "[A]lthough the action of partition is of statutory origin in this state, it is nonetheless an equitable proceeding." (Elbert, Ltd. v. Federated Income Properties (1953) 120 Cal.App.2d 194, 200; see § 872.140.) "Upon partition of property held in cotenancy the lien existing on an undivided interest attaches solely to the land allotted to the cotenant against whose interest the lien was a charge." (Noble v. Beach, supra, 21 Cal.2d at p. 95.)
"If the court finds that the plaintiff is entitled to partition, it shall make an interlocutory judgment that determines the interests of the parties in the property and orders the partition of the property and, unless it is to be later determined, the manner of partition." (§ 872.720, subd. (a).) The standard of review for an interlocutory judgment of partition is abuse of discretion. Under that standard, "[t]he trial court's 'application of the law to the facts is reversible only if arbitrary and capricious.' " (In re Charlisse C. (2008) 45 Cal.4th 145, 159.)
"In a partition, there is no change of title between the tenants in common—it is simply a dividing up of what the parties already own. After the partition each tenant in common has exactly the same proportional interest in the property that he had prior thereto. The only difference is that now his interest is in severalty, while prior to the partition it was in common." (Rancho Santa Margarita v. Vail (1938) 11 Cal.2d 501, 539; 14859 Moorpark Homeowner's Assn. v. VRT Corp., supra, 63 Cal.App.4th at pp. 1404-1405.) "[T]he one whose property has been taken from him is not relegated to a personal claim against the wrongdoer which might have to be shared with other creditors; he is given the right to a restoration of the property itself." (Bainbridge v. Stoner (1940) 16 Cal.2d 423, 429.) B. The Court in Equity Did Not Abuse Its Discretion
We conclude the court did not err in distributing the sales proceeds to Jimmy as set forth in the interlocutory judgment. As a lienholder, Torncello's interests following partition only extended to Thomas's assets after Jimmy was reimbursed for his expenses. Jimmy was not another credit holder but rather a part owner of the distributed property. The court recognized it was ruling in equity by pointing out that if it adopted Torncello's view, it would "unjustly" enforce Torncello's judgment against Jimmy, a nondebtor. We discern no abuse of discretion in the court's ruling. C. Torncello's Challenge to the Award of Attorney Fees and Other Costs
Relying on section 847.020, Torncello argues, "Although [Jimmy] is entitled to recover one-half of the fees incurred for the common benefit, that number is something less than the $46,992.81 in attorney's fees, $2,217.43 in costs and $1,250.00 in expert fees [Jimmy] requested." Torncello argues the court made no effort "to distinguish between those attorneys' fees incurred for the common benefit and those incurred in the contested litigation."
Torncello also contends the court erroneously granted Jimmy 100 percent of the expenses incurred in improving the Broadmoor property. Citing no authority, Torncello argues that at most, Jimmy was entitled to "(1) 50 [percent] of the pre-sale costs to preserve and protect Broadmoor property; (2) 50 [percent] of the fees and costs incurred for the common benefit; and (3) 50 [percent] of the improvements to Broadmoor, because each of those claims arise [sic] from the partition action and relate back to the lis pendens." (Italics omitted.)
Jimmy counters that Torncello did not appeal the trial court's order relating to the disbursal to Jimmy, which encompasses these challenged matters; therefore, his claims are not cognizable on appeal. We agree. Torncello's notice of appeal specifically states he is appealing the order on his motion for priority. That order addresses only the disbursement of $70,766.56 to Torncello from Thomas's portion of sales proceeds following the partition order. It does not address the separate order awarding Jimmy attorney fees, costs, expert fees and costs of improvement to the Broadmoor property from Thomas's share of the sales of proceeds.
"Despite the rule favoring liberal interpretation of notices of appeal, a notice of appeal will not be considered adequate if it completely omits any reference to the judgment being appealed." (Shiver, McGrane & Martin v. Littell (1990) 217 Cal.App.3d 1041, 1045.) " 'The rule favoring appealability in cases of ambiguity cannot apply where there is a clear intention to appeal from only . . . one of two separate appealable judgments or orders.' " (Baker v. Castaldi (2015) 235 Cal.App.4th 218, 224.) In light of the fact Torncello only appealed the Torncello order, we do not address Torncello's arguments on these other matters because they are not properly before us.
II. Jimmy's Cross-Appeal
Jimmy cross-appeals, claiming the Torncello order is void as there is no substantial evidence Torncello complied with section 708.410, subdivision (b), which mandates that the judgment creditor shall file a notice of lien and an abstract or certified copy of the judgment creditor's money judgment in the pending action or special proceeding. Jimmy specifically contends no evidence showed that Torncello filed an abstract or certified copy of a money judgment to support his motion for priority. Jimmy concedes that he would be aggrieved "in the event this Court upholds the trial court's finding that Torncello created a valid lien and that Torncello is entitled to a sum greater than the award of $70,766.56," in which case "Jimmy's substantial pecuniary interest would be affected by the Torncello [o]rder."
Torncello counters that Jimmy obtained all of the benefit he sought in the partition action; therefore, Jimmy was not aggrieved by the court's ruling. Torncello adds that even assuming, arguendo, this court agreed with Jimmy's contention that Torncello did not perfect his judgment lien, any additional relief would go to Thomas, as the debtor, and not to Jimmy. However, Thomas did not appeal the court's order. Torncello urges us to dismiss Jimmy's cross-appeal.
We agree with Torncello that Jimmy is not aggrieved by the court's ruling in the Torncello order. "An appeal may be taken only by a party who has standing to appeal. [Citation.] This rule is jurisdictional." (Sabi v. Sterling (2010) 183 Cal.App.4th 916, 947.) It cannot be waived. (Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 295.) This court is without power to bestow jurisdiction on itself. (Baker v. Castaldi (2015) 235 Cal.App.4th 218, 227.) " ' "One is considered 'aggrieved' whose rights or interests are injuriously affected by the judgment." Conversely, "[a] party who is not aggrieved by an order or judgment has no standing to attack it on appeal." ' " (Conservatorship of Gregory D. (2013) 214 Cal.App.4th 62, 67.) "This is 'no mere technicality, but is grounded in the most basic notion of why courts entertain civil appeals. We are here to provide relief for appellants who have been wronged by trial court error. Our resources are limited and thus are not brought to bear when appellants have suffered no wrong[.]' " (Id. at p. 68.) We affirmed in its entirety the trial court's order favorable to Jimmy, and he has not shown he is aggrieved. Even if Jimmy prevailed on his claim, he would not obtain any additional recovery; rather, Thomas would be the beneficiary. We dismiss Jimmy's cross-appeal.
DISPOSITION
The order on Ronald Torncello's motion for priority is affirmed. Jimmy Sikes's cross-appeal is dismissed. Each party is to bear its own costs on appeal.
O'ROURKE, J. WE CONCUR: NARES, Acting P. J. GUERRERO, J.