Betchart v. Betchart

















Filed 4/19/13 Betchart v. Betchart CA1/2

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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

FIRST
APPELLATE DISTRICT

DIVISION
TWO




>

ANTHONY BETCHART et al., Plaintiffs and Appellants, v. WALDTRAUT BETCHART, Defendant and Respondent.

A130834, A134063 (Alameda County Super. Ct. No. FG09-463053)

Anthony Betchart
(Tony), Ludgwig Betchart, Inc. (LBI), Elizabeth Enterprises, Inc. (Elizabeth),
and CENA, LLC (CENA) filed a complaint for declaratory
relief pursuant to Code of Civil Procedure section 1060href="#_ftn1" name="_ftnref1" title="">[1]
and for injunctive relief against Waldtraut Betchart (Wally), Tony’s
mother. This declaratory action sought
to enforce alleged oral agreements between Wally, her husband, and Tony, and to
prevent the enforcement of provisions in a trust executed by Wally and her
husband. Wally, in her capacity as the
trustee, filed a cross-complaint against Tony to partition properties that were
used by LBI, the family business.

The trial court
granted Wally’s nonsuit against the complaint for declaratory and injunctive
relief, and Tony appealed. Subsequently,
the trial court granted summary judgment in favor of Wally on her
cross-complaint for partition, and Tony appealed. At Tony’s request, we consolidated the
appeals.

We affirm the
nonsuit order as declaratory relief under a trust is not permitted under
section 1060 and Tony’s pleading requires the court to interpret and assess the
validity of a trust. We also affirm the
interlocutory judgment for partition.
Wally provided undisputed evidence
that she was entitled to partition. (See
§§ 872.710 & 872.720, subd. (a).)

>BACKGROUND

Ludwig
G. Betchart (Ludwig) and Wally, husband and wife, had six children
together: Rosemary Smith, Karola
Betchart, Mary Platten, Ludwig K. Betchart (Champ), Herman Betchart (Herman),
and Tony. Tony is a shareholder,
director, and officer of LBI and Elizabeth.
He is also the managing member of CENA.
All of the companies involve the rental of heavy construction and
related equipment and machinery, and demolition services.

Ludwig and Wally founded LBI, a
demolition and heavy equipment rental company, in the 1960s. Since 1978, LBI has conducted its operation
on two adjacent parcels of land in Fremont, 42270 Osgood Road and 42088 Osgood
Road (collectively, the two Osgood properties).
The land at 42088 Osgood is continuous to 42270 Osgood, but there is no
vehicular access to public streets on 42088 Osgood except over the parcel
located at 42270 Osgood. Ludwig operated
the company, maintained its equipment, and oversaw the demolition jobs, while
Wally was in charge of the office and kept the books.

As
the three sons graduated from high school, each became involved in the family
business. Ludwig and Wally promised the
boys that they would inherit the business and the land on which it was
operating if they remained active in the business. Tony, the youngest son, began working in the
business in 1987, and about one year later, in 1988, Herman left LBI. Champ and Tony continued to work in the
family business in the 1990s.

Wally wanted to
have a trust created and in order to get Ludwig to sign the trust, Wally
“agreed that whoever worked for the business would get the business and these
two parcels of land . . . .” Attorney
Barbara Beck prepared for Ludwig and Wally a trust in 1992, named the Ludwig
Betchart and Waldtraut Betchart 1992 Declaration of Trust (the original
trust).

The original trust
named Wally and Ludwig as the co-trustees and provided that the co-trustee
would remain as the sole trustee if either Wally or Ludwig died. The original trust also stated that the trust
could “be revoked in whole or in part with respect to community property by an
instrument in writing signed by either Trustor . . . .”

Upon the death of
the first trustor, the trust estate, according to the original trust, was to be
divided into three separate trusts “designated the ‘Survivor’s Trust,’ the
‘Marital Trust’ and the ‘Bypass Trust.’ ”
The survivor’s trust was the surviving spouse’s interest in the
trustors’ community estate. The bypass
trust was “the balance of the Trust Estate representing the balance of the
Deceased Spouse’s interest in the Trustors’ community property, the Deceased
Spouse’s quasi-community property and the Deceased Spouse’s separate property .
. . .” Paragraph 5.5 provided: “On the death of the Deceased Spouse, the
Surviving Spouse shall have the power to amend, revoke, or terminate the
Survivor’s Trust, but the Marital Trust and the Bypass Trust may not be
amended, revoked, or terminated.” The
original trust contained a no-contest clause at paragraph 9.22.

Paragraph 7.3,
under the heading, “Death of the Surviving Spouse,” stated, in pertinent
part: “Upon the death of the Surviving
Spouse, the Trustee shall distribute the balance of the Bypass Trust and any
portions of the Survivor’s Trust and Marital Trust not disposed of as
follows.” Under subdivision C in
paragraph 7.3, the instrument specified:
“The Trustee shall distribute [LBI] in equal shares” to Champ and Tony. “Each of them must be active in [LBI] to
receive his share.” Under 7.3B, the
original trust stated that a third property on 41655 Osgood Road, would pass to
the three daughters and to Herman.

Paragraph 8.15,
under the heading of “Trustee’s Powers,” read:
“The Trustee shall have the power to partition, allot and distribute the
Trust Estate, on any division or partial or final distribution of the Trust
Estate, in undivided interests or in kind, or partly in money and partly in
kind, at valuations determined by the Trustee, and to sell such property as the
Trustee may deem necessary to make division or distribution. In making any division or partial or final
distribution of the Trust Estate, the Trustee shall be under no obligation to
make a pro rata division, or to distribute the same assets to beneficiaries
similarly situated, as long as the respective assets allocated to separate
Trusts or shares, or distributed to such beneficiaries, have equivalent or
proportionate fair market value.”

After creating the
original trust, Wally did not discuss with Ludwig dividing the two Osgood
properties equally among the six children.
On December 31, 1997, Ludwig and Wally executed and recorded a grant
deed that transferred a 2.77 percent undivided interest in 42088 Osgood Road
(42088 Osgood or the Property) to Tony.
A few years later, on December 28, 2000, they executed a grant deed
transferring to Tony an undivided interest in the Property of three percent.

In 1997 or 1998,
Wally wished to amend the original trust because Champ was no longer working
for LBI, and would, therefore, no longer receive a portion of any of the three
Osgood Road properties under the terms of the trust. Wally testified that people had told her over
the years that the land they owned should be divided equally among all six children,
and she wanted to change the original trust to have the three Osgood properties
divided evenly among her six children.

In 2002, Ludwig
was diagnosed with cancer and stopped working.
On May 21, 2003, Ludwig and Wally revoked and amended the original trust
and executed the Ludwig Betchart and Waldtraut Betchart Amended and Restated
Declaration of Trust dated December 21, 1992 (the amended trust). Attorney Beck also prepared the amended
trust. Both Ludwig and Wally signed the
amended trust at the bank. Above their
signatures, the amended trust stated that Ludwig and Wally had read the
document and approved of it.

The amended trust
specified that after the death of the first spouse, the trust estate was to be
divided into the survivor’s trust and the bypass trust, rather than into three
trusts. Under the heading of “Death of
the Surviving Spouse,” paragraph 7.4B provided that the trust estate was to be
distributed as follows: the three Osgood
Road properties were to be distributed equally among the issue of Ludwig and
Wally, by right of representation, and the owner of LBI was to have the right
to rent the properties for a reasonable rent as long as he wished. Paragraph 7.4C stated that LBI was to be
distributed to Tony. Paragraphs 7.2 and
7.3 provided the surviving spouse with the general power of appointment over
the assets of the survivor’s trust and a limited power of appointment over the
assets of the bypass trust. Under the
heading, “Trustee’s Powers,” the surviving trustee maintained broad discretion
to allocate assets to the two subtrusts after the death of the first spouse,
including the power to make non pro rata allocations of the trust assets to the
two subtrusts. In paragraph 8.5, the
trustee was given the power to, among other things, partition and divide the
property.

A few months
later, on July 7, 2003, Ludwig died.
Beck served a notification under Probate Code section 16061.7 (the
trustee’s notification), and a copy of the amended trust on all beneficiaries
of the trust, including Tony.

In
2004, Wally decided that she wanted to be less active in LBI because she was 74
years old at that time. In the spring of
2005, Tony and Wally went to see Glen Moss, the attorney for LBI. They also met with Roger Marlin, a Certified
Public Accountant (CPA). Wally wanted to
make sure that Tony was able to continue running LBI without interference from
other family members. She wanted to give
Tony control of the business and Marlin advised against that. He suggested that she retain at least 50
percent control and give Tony 40 percent.
He originally drafted an agreement reflecting this distribution, but
Wally later told him that she wanted Tony to have a controlling interest in the
business. He stated that at some point
Wally came to him crying and said that she felt that she had to “make things
right with Tony, via the business and the property.” She said that she wanted to be fair to the
other children and she was conflicted.
He said that she told him that “she had done something that her husband
didn’t want her to do. And she made some
changes into the trust.” He testified
that he did not know exactly what those changes were. She mentioned the Osgood properties. She told him that she wanted to make sure
that Tony received the business and “at least the piece of property in which
the business was sitting on.”

Tony stated that
he continued to work at LBI in reliance of the terms in the original trust and
oral promises to him. After Ludwig’s
death, Wally told Tony that Ludwig never intended to change the original trust. Tony declared that Wally admitted to him that
she misled Ludwig into signing the amended trust when he was terminally
ill. She told Ludwig, according to Tony,
that the documents were merely an “ ‘update.’ ”

In
September of 2005, Tony and his wife agreed to Wally’s request to enter into a
series of transactions suggested by Wally’s advisors. The advisors warned that there would be
adverse tax ramifications to the estate if the business were transferred
outright to Tony. Tony undertook the
following transactions: a written stock
purchase agreement, whereby Tony purchased Ludwig’s shares in LBI; a contract
of sale, wherein Tony’s nominee (CENA) purchased certain depreciated equipment
from LBI; a personal property lease, where Wally personally leased six pieces
of equipment to Elizabeth; and an equipment lease, under which Elizabeth leased
from LBI certain equipment for subrental to customers. Tony personally guaranteed most of these
transactions. Tony was the president and
a 51 percent shareholder of LBI. Wally
retained a 46 percent ownership interest, and another son held a 3 percent
ownership interest in LBI.

On January 22,
2008, Tony retained counsel and his attorney filed on his behalf a petition to
preserve testimony in the superior court.
Tony sought to compel Wally to submit to a deposition to preserve
testimony regarding the execution of the amended trust. The request was denied.

On October 10,
2008, Wally filed an action seeking to dissolve LBI. Subsequently, in April of 2009, she initiated
an unlawful detainer proceeding to
evict LBI from the two Osgood properties.
The court dismissed this case after entering an order quashing services.


On July 15, 2009, Tony, LBI, Elizabeth, and
CENAhref="#_ftn2" name="_ftnref2" title="">[2]
filed the complaint against Wally, individually. The complaint contained causes of action for
declaratory relief and for injunctive relief to prevent Wally from evicting him
from the two Osgood properties. The
pleading stated that “[t]he purpose of this action is to enforce a contract and
obligation of trust arising out of the performance of plaintiffs’ obligations
for maintenance and operation of a family business at family-owned real
property situated in Fremont, Alameda County, California, as well as subsequent
related transactions intended to further and perpetuate such intent. Plaintiffs relied upon that contract and
obligation of trust and have fully performed their end of the bargain, and seek
to continue performing. Despite such
performance, defendants, who participated in and benefitted from this family
business, now seek to renege upon the contract and trust obligation, as well as
the subsequent related transactions; seek to evict plaintiffs from the real
property at which the family business has been operated since approximately
1977-78; and seek to utterly destroy the family business. This action seeks to prevent that inequitable
and unjust result.” Tony alleged that he
relied on paragraph 7.3C in the original trust.

Wally answered the
complaint on August 14, 2009, and, as trustee of the survivor’s trust and
bypass trust, she filed a cross-complaint against Tony to partition 42088
Osgood. Tony answered the
cross-complaint on September 24, 2009.

On September 1,
2009, Tony filed an application for a temporary restraining order and an order
to show cause or, alternatively, a request for a preliminary injunction. The trial court denied the application for a
temporary restraining order but granted the order to show cause regarding a
preliminary injunction. On October 8,
2011, the court denied the motion for a preliminary injunction.href="#_ftn3" name="_ftnref3" title="">[3]


The declaratory
relief action came on for a nonjury trial on October 15, 2010. Both parties filed motions in limine that
were denied without prejudice. Counsel
for Tony asserted in his opening statement that Tony was entitled to inherit
LBI and the two Osgood properties because there had been a promise in the
original trust. He argued that the
amendment was procured by fraud and undue influence over a person incapable of
protecting his own interest. Following
the opening statements, Wally’s counsel made an oral motion for nonsuit. The court adjourned for the day and continued
the matter to October 18, 2010. Tony
filed written opposition to Wally’s motion for nonsuit.

On October 18,
2010, the trial court heard testimony of CPA Marlin out of order, and heard
arguments regarding Wally’s nonsuit motion.
The matter was then submitted to the court for decision on the nonsuit
motion. On October 21, 2010, the court
considered supplemental briefing by Tony.
The court listened to additional argument by counsel.

On October 28,
2010, the trial court issued its tentative decision granting Wally’s nonsuit
motion. On October 29, 2010, the court
heard oral argument on the tentative ruling.
After hearing oral argument, the court adopted its tentative ruling.

Tony filed a
request to reopen and to make an offer of proof; he also requested leave to
amend the complaint. Wally opposed this
request. Subsequently, in November 2010,
the trial court heard additional argument on the nonsuit motion. Following this argument, the court again
adopted its tentative ruling granting nonsuit.

On November 10,
2010, the trial court issued its order granting Wally’s motion for
nonsuit. The court stated that the
theory of recovery stated in the complaint is the following: Tony “ ‘accepted and relied on this Trust
pledge as a contract (emphasis added)
and in faithful performance of same has remained active in the business of LBI
since 1987, and continues to remain active in said business, however, [Champ]
elected to not remain in the business, and thus forfeited his expectancy
interests in the LBI business and [two] Osgood Propert[ies].’ ” The court explained that Tony’s claims were
based upon the terms of the original trust.


The court noted
that Wally’s grounds for the motion of nonsuit were: “1.
Declaratory relief is not available for a dispute over the terms of a
trust [under] section 1060; [¶] 2. Plaintiffs do not have a present enforceable
right; and [¶] 3. This action is barred by . . . section
366.3.” The trial court also considered
Tony’s various arguments of waiver. The
trial court found that there was no waiver and granted Wally’s nonsuit on all
three of the grounds urged by Wally.

On November 11,
2010, and with the agreement of the parties, the trial court severed the
cross-action for partition.

Tony filed a
timely notice of appeal from the order granting Wally’s nonsuit.href="#_ftn4" name="_ftnref4" title="">[4]


On April 11, 2011,
Wally filed a motion for summary judgment on her partition action. She asserted that she was entitled to
interlocutory judgment pursuant to section 872.720, subdivision (a). Tony filed opposition. In his separate statement of facts he did not
dispute any of the facts set forth in Wally’s separate statement except to
assert that his declaration and Wally’s deposition showed that Ludgwig was too
sick to agree to the amended trust and that his signature was the result “of
fraud, undue influence, breach of fiduciary duty, etc.” He set forth additional facts that he
asserted were from Wally’s deposition.
Wally filed objections to these additional facts on various grounds,
including that the evidence was irrelevant.

The trial court
held a hearing on Wally’s summary judgment motion on September 8, 2011, and
took the matter under submission. On
September 20, 2011, the court issued a minute order granting Wally’s motion for
summary judgment. The court also
sustained and overruled various evidentiary objections submitted by Wally. The court issued an order and Tony filed
written objections to the proposed order and judgment.

On November 8,
2011, the trial court filed its order, which granted interlocutory judgment for
partition. The court found that Wally
established that she was the trustee of the survivor’s trust and trustee of the
bypass trust under the amended trust.
The court found that Wally had “submitted sufficient evidence indicating
that there is no triable issue of material fact as to her ‘right’ to partition
the real property located at 42088 Osgood Road . . . , which has not been
waived. In her moving papers, Wally, as
trustee, has demonstrated clear title to the Property as follows: 84.97 [percent] undivided ownership by Wally
as trustee of the Survivor’s Trust; 9.26 [percent] undivided ownership by Wally
as trustee of the Bypass Trust; and 5.77 [percent] by [Tony].”

In its order, the
trial court also addressed Tony’s argument that Wally waived her right to
partition. The court stated that Tony
alleged waiver “by virtue of the existence of two enforceable contracts that
require the testamentary distribution of estate assets, including the Property
at issue here, upon Wally’s death. . . .”
The court noted that Wally “objected to virtually all of the evidence”
presented by Tony on relevancy grounds and the court had sustained these
objections. The court found that Tony
had submitted insufficient evidence indicating any waiver of the “ ‘right’ to
partition.”

The trial court
addressed whether the partition should be by sale or in kind. The Property is landlocked and has no street
frontage. Thus the court concluded that
it would be impossible to partition the Property without violating local zoning
ordinances. The court concluded,
“[T]here is no triable issue of material fact that partition by sale is ‘more
equitable’ than partition in kind.”

The trial court
filed its interlocutory judgment of partition on December 7, 2011. Tony filed a timely notice of appeal from the
partition judgment.

Tony requested
that we consolidate his appeals from the order granting the nonsuit on his
request for declaratory relief and from the order of partition. We granted that request on January 6, 2012.href="#_ftn5" name="_ftnref5" title="">[5] The parties filed their briefs and requests
for judicial notice.href="#_ftn6"
name="_ftnref6" title="">[6]

DISCUSSION

I. Nonsuit
on Tony’s Complaint

A. Standard
of Review

> Under
section 581c, subdivision (a): “Only
after, and not before, the plaintiff has completed his or her opening
statement, or after the presentation of his or her evidence in a trial by jury,
the defendant, without waiving his or her right to offer evidence in the event
the motion is not granted, may move for a judgment of nonsuit.” A nonsuit on the opening statement is
warranted only if it is clear there will be no evidence of sufficient
substantiality to support a judgment in favor of the plaintiff. (Willis
v. Gordon (1978) 20 Cal.3d 629, 633.)

“
‘The standard of review for a nonsuit after [the] conclusion of the opening statement is well
settled. Both the trial court in its
initial decision and the appellate court on review of that decision must accept
all facts asserted in the opening statement as true and must indulge every
legitimate inference[,] which may be drawn from those facts. [Citations.]
A nonsuit at this early
stage of the proceedings is disfavored. [Citation.]
It can only be upheld on appeal if, after accepting all the asserted
facts as true and indulging every legitimate inference in favor of plaintiff,
it can be said those facts and inferences lead inexorably to the conclusion
plaintiff cannot establish an essential element of its cause of action or has
inadvertently established uncontrovertible proof of an affirmative
defense. [Citations.]’ [Citation.]”
(Galanek v. Wismar (1999) 68
Cal.App.4th 1417, 1424.)

>B. The
Trial Court Properly Dismissed the Claim for Declaratory Relief

The trial court
granted Wally’s motion for nonsuit on all three of the following grounds: declaratory relief was not available under
section 1060, Tony did not have a present enforceable right, and the statute of
limitations under section 366.3 barred this action.href="#_ftn7" name="_ftnref7" title="">[7] It also found that Wally had not waived her
right to raise the statute of limitations and other defenses to Tony’s request
for declaratory relief.

Declaratory
relief claims are governed by section 1060, which provides as follows: “Any person interested under a written
instrument, excluding a will or trust,
or under a contract, or who desires a declaration of his or her rights or
duties with respect to another, or in respect to, in, over or upon property, or
with respect to the location of the natural channel of a watercourse, may, in
cases of actual controversy relating to the legal rights and duties of the
respective parties, bring an original action or cross-complaint in the superior
court for a declaration of his or her rights and duties in the premises,
including a determination of any question of construction or validity arising
under the instrument or contract.”
(Italics added.)

“Moreover,
‘[d]eclaratory relief operates prospectively to declare future rights, rather
than to redress past wrongs.
[Citation.]’ [Citations.] [It] ‘ “serves to set controversies at rest
before they lead to repudiation of obligations, invasion of rights or
commission of wrongs; in short, the remedy is to be used in the interests of
preventive justice, to declare rights rather than execute them.” [Citations.]’
[Citation.]” (>County of San Diego v. State of California (2008)
164 Cal.App.4th 580, 607-608.)

Tony
argues that he was entitled to declaratory relief based on his contract rights
that were independent of the terms of the original or amended trust. He maintains that his rights were based on an
oral promise that he would obtain LBI and the Osgood properties upon the death
of both his parents and that the original trust “was simply corroborative of
those agreements.” He claims that Ludwig
agreed to sign the original trust only after Wally agreed that LBI and the two
Osgood properties would go to the son or sons working for LBI at the time of
the deaths of both Ludwig and Wally.

We,
however, agree with the trial court that Tony was not entitled to declaratory
relief under section 1060. Section 1060
permits a party to seek a declaration of rights under “a written instrument,
excluding a will or trust,” and the only
written agreement cited and attached to Tony’s pleading is the original
trust. Tony’s allegations throughout his
complaint refer to the original trust.
For example, he asserts the following:
“As an important feature of their estate planning, and a prominent
feature of [the original trust], the Trustors specifically provided in
Paragraph 7.3C of the Trust Instrument . . . , that upon the death of the
surviving spouse, the LBI business and the Osgood [properties], would be
distributed to [Tony] . . . provided that [he] remained active in LBI (‘Trust
pledge’).” In his pleading, Tony asked
the court to declare “[t]hat acts intended to terminate [Tony’s] use and
possession of the Osgood [properties] . . . violate the enforceable, binding
contract to convey the Osgood [properties] to [Tony] upon the death of the
surviving Trustor of the [original trust], and constitute anticipatory breaches
of said contract, and such actions are therefore unenforceable and
invalid.” Accordingly, we agree with the
trial court that Tony’s request for declaratory relief was based on the
original trust and section 1060 expressly excludes any declaratory relief based
on a trust.

Tony
cites a number of cases in support of his argument that he is entitled to
declaratory relief. (>Caldwell v. Rosenberg (1941) 47
Cal.App.2d 143; Sonnicksen v. Sonnicksen (1941)
45 Cal.App.2d 46; Moklofsky v. Moklofsky (1947)
79 Cal.App.2d 259; Brown v. Superior
Court (1949) 34 Cal.2d 559 (Brown);
Gardiner v. Gaither (1958) 162
Cal.App.2d 607; Brewer v. Simpson (1960)
53 Cal.2d 567; Goldstein v. Hoffman (1963)
213 Cal.App.2d 803; Estate of Cates (1971)
16 Cal.App.3d 1; Warren v. Kaiser
Foundation Health Plan, Inc. (1975) 47 Cal.App.3d 678; McClain v. Octagon Plaza, LLC (2008) 159 Cal.App.4th 784, 799-800;
Wilson & Wilson v. City Council of
Redwood City (2011) 191 Cal.App.4th 1559.)
All of the cases cited by Tony, except for two, were decided prior to
1994 and the statute was amended in 1994.
Prior to the 1994 amendment, section 1060 provided “[a]ny person interested
under a deed, will or other written instrument, or under a contract, or who
desires a declaration of his rights or duties with respect to another may . . .
bring an original action . . . for a declaration of his rights and duties. . .
.” The 1994 amendment substituted
“written instrument, excluding a will or a trust” for “deed, will or other
written instrument.” (former §
1060.) Thus, the current statute, unlike
the former, expressly excludes wills and trusts; any cases decided prior to
this amendment are not relevant.

The
other two cases cited by Tony, McClain v.
Octagon Plaza, LLC, supra, 159 Cal.App.4th 784 and Wilson & Wilson v. City Council of Redwood City, supra, 191
Cal.App.4th 1559 are also inapplicable to the issue raised by this appeal. The court in McClain, concluded that the pleading adequately alleged a cause of
action for declaratory relief because the shopping center tenant had pled “an
‘actual controversy’ regarding [the tenant’s] obligations to pay rent and other
expenses under the lease.” (>McClain, at p. 800.) In Wilson,
the court concluded that declaratory relief to protect property from
possible future condemnation was not ripe for adjudication. (Wilson,
at pp. 1582-1583.) Neither of these
cases is germane to the present case as they did not involve a pleading that
even mentioned a trust or a will.

Tony
argues in his reply brief that “[c]ase authority also recognizes that a
promisee may seek to impose a constructive trust as a remedy . . . , and
declaratory relief is an appropriate method to establish such a trust” and
cites Cabral v. Soares (2007) 157
Cal.App.4th 1234 (Cabral) and >Estate of Sargavak (1953) 41 Cal.2d
314. Cabral
actually undermines Tony’s position.
The court in Cabral held that
the plaintiff’s complaint was essentially attempting to challenge the validity
of the will and therefore the plaintiff was not entitled to declaratory relief
under section 1060. The court stressed
that “[a] dispute concerning the meaning or validity of the provisions of a
will cannot be resolved by declaratory judgment.” (Cabral,
at p. 1239.) To the extent the
complaint relied on the “alternative allegation” that the will was changed in
an attempt to defraud creditors, the Cabral
court concluded that “the complaint still seeks to effect a distribution of the
estate in contravention of the terms of the amended will.” (Id. at
p. 1240.) The Cabral court rejected, as the trial court in the present case did,
any request for declaratory relief that required the court to interpret provisions
in a will (or trust).

Tony
appears to be ignoring the aforementioned holding in Cabral, and cites to that portion of the decision that concluded
that the trial curt erred in denying the plaintiff the opportunity to amend her
complaint to allege a constructive trust.
(Cabral, supra, 157
Cal.App.4th at pp. 1240-1242.) When
concluding that the lower court should not have sustained the demurrer without
leave to amend, the appellate court in Cabral
stated that a two-step analysis occurs.
First, the court determines whether there was an oral promise by the
testator to devise the property in a particular manner in reliance upon an
agreement or understanding with the devisee that the latter will hold it in
trust for, or convey it to, a third person.
(Id. at p. 1241.) When there is such a promise, the devisee
holds the property upon a constructive trust for a third person and the court
may consider extrinsic evidence to determine whether “ ‘a constructive trust
would arise in favor of the beneficiaries.’ ” (Ibid., quoting
Estate of Sargavak, supra, 41 Cal.2d
at p. 321.) The second step is to
determine whether the plaintiff is entitled to enforce the right to impose such
a constructive trust. (>Cabral, at p. 1242.)

Although
Tony’s argument is not entirely clear, he cannot amend his complaint in the
present case to allege that he is entitled to a constructive trust. In Cabral,
there was no attempt to have the court consider evidence of an oral promise
that was contrary to the express provisions of the written instrument. Here, Tony’s claim would require the trial
court to disregard the express provision in the original trust that stated
that the trust could “be revoked in whole or in part with respect to community
property by an instrument in writing signed by either Trustor . . . .” As discussed more extensively below, Tony
cannot attempt to introduce extrinsic evidence to contradict the unambiguous
provision in the trust.

In
the present case, Tony’s cause of action for declaratory relief requires the
court to interpret the provisions in the original trust as well as to determine
the validity of the amended trust.
Indeed, he argues in his brief in this court that the amended trust did
not reflect Ludwig’s wishes and that Ludwig only signed the original trust on
the condition that the sons who continued to work for LBI would receive
LBI. He maintains that Wally exercised
undue influence over Ludwig when she had him sign the amended trust and that
the amended trust should be disregarded.
His claims thus require the court to interpret the original and
amended trust and the trial court correctly found that Tony was not entitled to
declaratory relief under section 1060.
(See Cabral, supra, 157
Cal.App.4th at p. 1239.)

Since
we conclude that Tony is not entitled to declaratory relief under section 1060
because the statute expressly excludes a declaration of rights based on a trust
instrument, we need not consider the trial court’s other independent grounds
for granting Wally’s nonsuit.

>C. Jurisdiction

> Tony
maintains that if the trial court did not have jurisdiction under section 1060
to hear his claim for declaratory relief, then it did not have jurisdiction to
grant a nonsuit. He argues that courts’
lacking jurisdiction over the subject matter of an action do not have the power
to hear or determine the case. (See,
e.g., People v. American Contractors
Indemnity Co. (2004) 33 Cal.4th 653, 660.)


Tony appears to be arguing that the
trial court did not have fundamental jurisdiction, but this argument has no merit. “Lack of jurisdiction in its most fundamental
or strict sense means an entire absence of power to hear or determine the case,
an absence of authority over the subject matter or the parties.” (Abelleira
v. District Court of Appeal (1941) 17 Cal.2d 280, 288.) Here, there was no allegation or finding that
the trial court did not have the authority to determine whether Tony could
state a cause of action for declaratory relief.
The trial court did not rule that it did not have jurisdiction over the
issue before it. The court found that
Tony was not entitled to the relief requested under section 1060.

The present action did not come
under the general subject matter jurisdiction of the probate court because the
issue did not involve the distribution of or dispute over a decedent’s
property. Tony invoked the superior
court’s original jurisdiction (Cal. Const., art. VI, § 10), seeking declaratory
and injunctive relief. The trial court
clearly had the authority in the present case to determine whether Tony was
entitled to declaratory relief under section 1060.

Tony also makes a somewhat
unintelligible argument that the trial court acted in excess of its
jurisdiction. As already discussed, the
trial court properly found that Tony was not entitled to declaratory relief and
thus it did not act in excess of its jurisdiction.href="#_ftn8" name="_ftnref8" title="">[8]

II. Summary
Judgment in Favor of Wally on Her Cross-Complaint for Partition

>A. Standard
of Review

A party is entitled to summary judgment if there is no triable issue of material fact and the
party is entitled to judgment as a matter of law. (§ 437c, subd. (c).) “[T]he party moving for summary judgment bears an initial burden of production to make a prima
facie showing of the nonexistence of any triable issue of material fact.” (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) When the cross-complainant is the moving
party, the cross-complainant’s initial burden is to produce evidence showing
that each element of each cause of action has been established. (§ 437c, subd. (p)(1).) If a moving plaintiff satisfies this initial
burden, the burden shifts to the cross-defendant to set forth “specific facts”
showing that a triable issue of material fact exists as to the cause of action or
a defense. (Ibid.) The cross-defendant
“may not rely upon the mere allegations or denials of its pleadings to show
that a triable issue of material fact exists but, instead, shall set forth the
specific facts showing that a triable issue of material fact exists as to that
cause of action or a defense thereto.” (>Ibid.)

“Despite the shifting
burdens of production, the . . . moving party[ ] always bears the ultimate
burden of persuasion as to whether summary
judgment is warranted. [Citations.]”
(Garcia v. W & W Community
Development, Inc. (2010) 186 Cal.App.4th 1038, 1041.) “In making this determination, courts view
the evidence, including all reasonable inferences supported by that evidence,
in the light most favorable to the nonmoving party.” (Ibid.) “ ‘We review the trial court’s decision de
novo, considering all of the evidence the parties offered in connection with
the motion (except that which the court properly excluded) and the
uncontradicted inferences the evidence reasonably supports.” (Richard
B. LeVine, Inc. v Higashi (2005) 131 Cal.App.4th 566, 572.)

We do not, however,
review the trial court’s rulings on evidentiary objections de novo. “ ‘[T]he weight of authority holds that an
appellate court reviews a court’s final rulings on evidentiary objections by
applying an abuse of discretion standard.
[Citations.]’ [Citation.]” (Miranda
v. Bomel Construction Co., Inc. (2010) 187 Cal.App.4th 1326, 1335.)

B. General
Principles Regarding Partition Actions

A co-owner of real or
personal property may bring an action for partition. (§ 872.210.) The term “partition” means “ ‘the procedure for segregating and terminating
common interests in the same parcel of property.’ ” (14859
Moorpark Homeowner’s Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396,
1404-1405.) The primary purpose of a partition suit is to sever the
co-ownership and divide the existing property interests. (See Rancho
Santa Margarita v. Vail (1938) 11 Cal.2d 501, 539; LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 493 [the
purpose of partition is to “
‘permit cotenants to avoid the inconvenience and dissension arising from
sharing joint possession of land’ ”].)

The statutes governing partition are found at section 872.010 et seq. A co-owner of property has an absolute right
to partition unless barred by a
valid waiver. (§ 872.710, subd.
(b).) “[T]he right of partition may be waived by contract,
either express or implied.” (>American Medical International, Inc. v.
Feller (1976) 59 Cal.App.3d 1008, 1014 (Feller).) “[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.)

“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 manner of partition may
be in kind or by sale. (§§ 873.210-873.50.) Partition in kind is favored. (Butte
Creek Island Ranch v. Crim (1982)
136 Cal.App.3d 360, 365 (Butte Creek).) In lieu of dividing the property among the
parties, the court shall order the property be sold and the proceeds divided
among the parties in accordance with their interests in the property if the
parties agree to such relief or the court determines sale and division of the
proceeds would be more equitable than a division of the property. (§ 872.820.)

“ ‘[I]n many modern transactions, sale of the
property is preferable to physical division since the value of the divided
parcels frequently will not equal the value of the whole parcel before
division. Moreover, physical division
may be impossible due to zoning restrictions or may be highly impractical,
particularly in the case of urban property.
[¶] The [Law Revision] Commission recommends that
partition by physical division be required unless sale would be “more
equitable.” This new standard would in
effect preserve the traditional preference for physical division while
broadening the use of partition by sale.’
[Citation.]” (Butte Creek, supra, 136
Cal.App.3d at p. 365.)

C. Applying
the Law on Partition to the Facts of the Present Case

The
trial court found that Wally presented undisputed evidence that she was
entitled to partition 42088 Osgood and that Tony had failed to present
admissible evidence to raise a triable issue of fact that Wally waived her
partition rights. The trial court also
found that the sale of the Property was more equitable than physically dividing
the property.

The
undisputed evidence showed that Wally was a co-owner of the Property and that
title was clear. Wally presented
evidence that Ludwig and she purchased the Property as joint tenants on May 6,
1983. On September 19, 1990, they
transmuted the Property from a joint tenancy to community property. Ludwig and Wally executed their original
trust in 1992, and were the co-trustees.
The original trust states at paragraph 8.15 that the trustee shall have
the power to partition any of the trust property. Ludwig and Wally transferred the Property to
the original trust on December 29, 1992.
On December 31, 1997, the co-trustees of the original trust, transferred
an undivided 2.77 percent interest in the Property to Tony. A few years later, they transferred an
additional three percent interest in the Property to Tony.

On
May 21, 2003, Ludwig and Wally executed the amended trust. The amended trust provides at paragraph 8.5
that the trustee shall have to power to partition the trust property. The amended trust states at paragraph 1.3A
that upon the death of either co-trustee, the survivor is the sole successor
trustee, and at paragraph 5, the amended trust states that the surviving
trustee is to divide the trust estate into a survivor’s trust and a bypass
trust. Ludwig died on July 7, 2003. The trust transfer deed recorded on May 25,
2006, stated that Wally, as trustee, transferred the trust’s interest in the
Property as follows: 84.97 percent to
Wally as trustee of the survivor’s trust, and 9.26 percent to Wally as trustee
of the bypass trust. Thus, Wally had
94.23 percent interest in the Property and Tony had a 5.77 percent interest.

The record also contained
evidence showing that fairness required the sale of the property. Wally presented undisputed evidence that the
Property is landlocked, and physically dividing the property would violate
local zoning ordinances.

Since the foregoing
evidence supported a finding that Wally was entitled to partition the Property
under section 872.710, subdivision (b), the burden shifted to Tony to raise a
triable issue of fact that Wally was not entitled to partition and/or that
fairness required that the Property be physically divided rather than
sold. Tony attempted to submit evidence,
primarily from Wally’s deposition, to show that the amended trust was invalid
and that the partition was unfair to him.
The trial court sustained Wally’s objections to Tony’s evidence. Thus, the record on appeal does not contain
any evidence raising a triable issue of fact regarding Wally’s right to
partition the Property and have it sold.
Accordingly, the grant of summary judgment was proper unless Tony can
establish the trial court abused its discretion in sustaining Wally’s
objections to his evidence.

D. No
Abuse of Discretion When Sustaining Wally’s Objections to the Evidence

1. Evidence
of an Oral Agreement

> Tony
contends that he presented evidence of waiver and the right to partition can be
waived by an express or implied agreement.
He maintains that the trial court should have considered his evidence
that Wally and Ludwig made a commitment that compelled “the continued existence
of LBI and intactness of the property.”
He asserts that these oral commitments induced him to remain active in
the business.

At common law and in
equity, co-owners of property are entitled to partition. (See, e.g., Butte Creek, supra, 136 Cal.App.3d at pp. 364-365.) Section 872.710, subdivision (b), provides
that except in situations not relevant to the present case, “partition as to
concurrent interests in the property shall be as of right unless barred by a
valid waiver.” This statutory right
might be waived. Courts have found
waiver based on contract, either express or implied. (See LEG
Investments v. Boxler, supra, 183 Cal.App.4th at p. 493.) However, “implied waiver of the right to
partition is a disfavored interpretation.”
(Id. at p. 496, fn.
omitted.)

Waiver of the right to
partition under section 872.710, subdivision (b) occurs when there
is evidence of an actual or implied contract expressing an intent to waive the
rights under the statute. (See, e.g., >Penasquitos, Inc. v. Holladay (1972) 27
Cal.App.3d 356, 358 [implied waiver of partition when cotenants entered into a
long term lease with an option to buy at a stated price]; Harrison v. Domergue (1969) 274 Cal.App.2d 19, 21 [“An agreement
giving rights of first refusal to the other tenants implies an agreement not to
bring a partition action in lieu of a sale to the cotenants”]; >Pine v. Tiedt (1965) 232 Cal.App.2d 733
[implied waiver of partition when cotenants invested in property, which was
subject to a long-term lease, with a view toward obtaining a secure source of
investment income]; Schwartz v. Shapiro (1964)
229 Cal.App.2d 238 [could not partition without offering other co-owner the
right to purchase the property because co-owners had executed a written
agreement that provided that one party would not sell his one-half interest
without giving the other co-owner the right to purchase it at the original
purchase price]; Thomas v. Witte (1963)
214 Cal.App.2d 322 [implied waiver of partition when cotenants agreed to a plan
designed to develop and operate property under a long term oil and gas lease]; >Miranda v. Miranda (1947) 81 Cal.App.2d
61 [formerly married woman and man had owned property as joint tenants and
woman who had not remarried and was living in the home with the children could
not seek partition of the property because the divorce agreement provided that
the property was to remain in the parties’ names as long as the woman did not
remarry and it was occupied by her as a home for the children].)

In the present case, none
of Tony’s evidence was admissible to show waiver. The express terms of the original trust
provided at paragraph 8.15, under the heading of “Trustee’s Powers,” as
follows: “The Trustee shall have the
power to partition, allot and distribute the Trust Estate, on any division or
partial or final distribution of the Trust Estate, in undivided interests or in
kind, or partly in money and partly in kind, at valuations determined by the
Trustee, and to sell such property as the Trustee may deem necessary to make
division or distribution. In making any
division or partial or final distribution of the Trust Estate, the Trustee
shall be under no obligation to make a pro rata division, or to distribute the
same assets to beneficiaries similarly situated, as long as the respective
assets allocated to separate Trusts or shares, or distributed to such
beneficiaries, have equivalent or proportionate fair market value.”

The absolute right
to partition was also set forth in the amended trust. In paragraph 8.5 of the amended trust, the
trustee was given the power to, among other things, partition and divide the
property.

Thus the original
trust and amended trust are absolutely clear and unambiguous. They provide the co-trustee with the absolute
right to partition. In opposition to
this evidence, Tony sought to have the trial court consider parol or extrinsic
evidence. Extrinsic evidence that
contradicts the unambiguous written terms in the trust is inadmissible. “[W]hen . . . the claimed oral agreement is a
direct contradiction of the written instrument, it is clear that the issue has
already been resolved. . . . ‘Testimony
of intention which is contrary to a contract’s express terms . . . does not
give meaning to the contract; rather it seeks to substitute a different
meaning. It follows . . . that such
evidence must be excluded.’
[Citations.]” (>Banco do Brasil, S.A. v. Latian, Inc. (1991)
234 Cal.App.3d 973, 1008, fn. omitted, overruled on another point in >Riverisland Cold Storage, Inc. v.
Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169, 1182-1183.)

We
are aware of no court that has held that an implied contract or oral contract
can waive the statutory rights under section 872.710 when a written contract
expressly states that the person has the right to partition. Indeed, such a holding would be contrary to
the law because, as stressed, extrinsic evidence cannot be used to rewrite the
terms of a written contract or agreement.href="#_ftn9" name="_ftnref9" title="">[9]

2. Evidence
of the Detrimental Effect of the Partition on Tony

> Tony
complains that the trial court did not consider his evidence that the Property
is necessary for the operation of LBI.
He maintains that this evidence was relevant to the issue of fairness,
and partition actions are governed by equity principles. (See, e.g., Wallace v. Daley (1990) 220 Cal.App.3d 1028, 1035.)

Although
a judgment of partition is subject to the general equitable requirement of
fairness, it must still comply with any applicable laws, regulations, or
ordinances governing the division, sale, or transfer of property. (Penasquitos,
Inc. v. Holladay, supra, 27 Cal.App.3d at p. 358.) Despite the fact that the right to partition
is subject to the requirement of fairness
(Feller, supra, 59 Cal.App.3d
at p. 1015; Penasquitos, at p. 358),
partition cannot be denied because it will result in financial loss to the
tenants (Feller, at p. 1013; >De Roulet v. Mitchel (1954) 70
Cal.App.2d 120, 124).

Tony’s evidence related
to the economic loss he would suffer based on his inability to continue to run
the company. The fact that it would
place an economic hardship on Tony was not relevant to the question whether Wally
had the right to partition the Property.

E. Equity
Does not Bar Partition

Tony maintains that
principles of equity and fairness bar partition. He contends that permitting Wally to
partition the Property defeats the purpose of the original trust, which was,
according to him, to ensure the continued survival and success of LBI. Additionally, he claims that the trial court
should have found that Wally was not entitled to partition based on the
doctrine of equitable estoppel.



When arguing that the
purpose of the original trust “was to ensure the continued survival and success
of LBI, as well as to reward Tony for his life-long devotion to the family
business,” Tony does not cite any of the language in the original trust to
support this argument. The only evidence
he cites is his own declaration.

Partition is not
inconsistent with the purpose of the original trust as evidenced by the
language of the provisions in the original trust. The original trust did not indicate that
Ludwig and Wally could not modify the terms of the trust as it stated that the
trust could “be revoked in whole or in part with respect to community property
by an instrument in writing signed by either
Trustor . . . .” (Italics
added.) Under the trustee’s powers, as
already noted, the trustee had the power to partition and there was no
restriction placed on the trustee to keep the Property or to ensure that LBI
survives. The instructions regarding LBI
are in paragraph 7.3 of the original trust, and come into play only after the
death of the surviving spouse. Nothing
in the trust prevents the trustee from taking any action that may impact LBI’s
survival.

Partition is consistent
with the unequivocal language in the original trust. Tony does not argue that equity
required the trial court to divide the Property in kind rather than order a
sale, and thus he has waived this issue.
In any event, he could not have prevailed on this argument. As already noted, the Property is landlocked,
and physically dividing the property would violate local zoning
ordinances.

Tony’s other major
argument is that he relied on the oral promises that he would receive the
Property and LBI if he continued to work in the family business, and the court
in equity should have estopped Wally from partitioning the property. “[T]he doctrine of equitable estoppel is a
rule of fundamental fairness whereby a party is precluded from benefiting from
his inconsistent conduct which has induced reliance to the detriment of
another. [Citations.]” (In re
Marriage of Valle (1975) 53 Cal.App.3d 837, 840, fn. omitted.) The elements of promissory estoppel are: “ ‘ “(1) a promise clear and unambiguous in
its terms; (2) reliance by the party to whom the promise is made; (3) [the]
reliance must be both reasonable and foreseeable; and (4) the party asserting
the estoppel must be injured by [the party’s] reliance.” ’ ” (Joffe
v. City of Huntington Park (2011) 201 Cal.App.4th 492, 513.)

In support of the
argument that he relied on the oral promises of Ludwig and Wally, Tony cites >Juran v. Epstein (1994) 23 Cal.App.4th
882 (Juran), Estate of Housely (1997) 56 Cal.App.4th 342 (Housely), and Brown, supra, 34
Cal.2d 559.href="#_ftn10"
name="_ftnref10" title="">[10] In Juran,
the court held that equitable estoppel principles could be applied to
enforce an oral agreement not to revoke a will.
(Juran, at pp. 892-897.) The court in Housely enforced in equity an oral promise to leave all of the
father’s property to the son in exchange for the son’s daily care of the
father. (Housely, at pp. 352-358.) In
both Juran and Housely, the courts applied the doctrine of equitable estoppel to
prevent the statute of frauds defense to an oral agreement.

In contrast to both >Juran and Housely, here, as already stressed, Tony is attempting to rely on
principles of estoppel and evidence of an oral agreement to contradict the
express terms of a written instrument.
Estoppel cannot be used in the present case because it is not reasonable
to rely on oral representations that contradict a written agreement. (See, e.g., Malmstrom v. Kaiser Aluminum & Chemical Corp. (1986) 187
Cal.App.3d 299, 318-319 [rejecting estoppel claim because reliance on
representations contradicting written agreement is not reasonable].)

Tony’s reliance on >Brown, supra, 34 Cal.2d 559, is
similarly unavailing. In >Brown, the husband and wife promised to
make mutual wills. (Id. at p. 563.) The
husband’s will stated “that it was made in consideration of a mutual will by
[his wife] and ‘in pursuance to an agreement between myself and my said wife .
. . for the making of these mutual wills on the part of each of us.’ It then provided that his property should go
to [his wife], if she should survive him, otherwise his entire estate,
including any and all property or estate received from [his wife], should go
one-half to his kindred and one-half to her kindred.” (Ibid.) After the husband died, the surviving spouse
made a new will that was contrary to the terms of the agreement with the
deceased spouse, and the third-party beneficiaries of the contract sued the
surviving spouse to enforce the terms of the agreement. The Supreme Court concluded: “Where two parties agree to make mutual
wills, each promising to dispose of his property to the other or, if the other
be dead, to certain third persons, and one of the parties performs by leaving
his property to the other, the intended devisees and legatees are entitled to
enforce their rights as beneficiaries under the agreement. The contracting party who survives becomes
estopped from making any other or different disposition of the property, and
his obligations under the agreement become absolutely irrevocable and
enforceable against him, at least where he avails himself of the provisions of
decedent’s will in his favor and accepts substantial benefits thereunder. [Citations.]”
(Id. at p. 564.)

In Brown, supra, 34 Cal.2d 559, the court provided the remedy of “
‘quasi specific performance’ ” to enforce the term of the oral agreement, but
the oral agreement was consistent with the written term in the will that
confirmed that the husband and wife had made an agreement about the disposition
of their property. (Id. at p. 564.) Here, as
repeatedly stressed, the terms of the oral promise that Tony wished to
introduce into evidence contradicted the explicit provisions in both the
original and amended trust.

Accordingly, the trial
court properly granted Wally’s motion for summary judgment and principles of
fairness did not create a triable issue of fact.

F. The
Consideration of Wally’s Evidence Did Not Result in Any Prejudicial Error

Tony
objects to both the evidence and argument on the statute of limitations that
Wally advanced in the trial court. He
argues that this evidence and argument were not raised in her moving papers and
were improperly submitted with her reply papers in opposition to his evidence
regarding the oral agreements.

Even
if we presume that the trial court should not have considered the evidence
submitted with Wally’s reply brief, any alleged href="http://www.mcmillanlaw.com/">evidentiary error was harmless. An erroneous evidentiary ruling requires
reversal only if “there is a reasonable probability that a result more
favorable to the appealing party would have been reached in the absence of the
error. [Citation.]” (Robertson
v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th
785, 815; see Evid. Code, § 354.) Here,
Wally submitted sufficient undisputed evidence in her moving papers to make a
prima facie case. Indeed, the trial
court expressly found that Wally established in her moving papers that she had
clear title to the Property. As already
discussed, Tony did not provide any admissible evidence and therefore Wally was
entitled to partition as a matter of law.
Accordingly, any alleged error related to the consideration of evidence regarding
the statute of limitations submitted in Wally’s reply to Tony’s opposition to
summary judgment was harmless.

G. The
Trial Court Had Jurisdiction

1. The
Effect of the Appeal

> Tony
contends that the trial court could not adjudicate the partition action because
his appeal of the order granting the nonsuit against his complaint was pending.href="#_ftn11" name="_ftnref11" title="">[11] Tony’s argument is that his filing of the
notice of appeal from the order granting the nonsuit against his complaint
against Wally, individually, divested the trial court of jurisdiction to
adjudicate the action by Wally, as the trustee of the original and amended
trust, for partition.

Section 916, subdivision
(a) provides that “the perfecting of an appeal stays proceedings in the trial
court upon the judgment or order appealed from or upon the matters embraced
therein or affected thereby, including enforcement of the judgment or order,
but the trial court may proceed upon any other matter embraced in the action
and not affected by the judgment or order.”
The appeal “vests jurisdiction in the appellate court and terminates the
jurisdiction of the lower court.” (>Estate of Hanley (1943) 23 Cal.2d 120,
123.)

“It
is settled that the rule requiring dismissal does not apply when the case
involves multiple parties and a judgment is entered which leaves no issue to be
determined as to one party.” (>Justus v. Atchison (1977) 19 Cal.3d 564,
568, disapproved on other grounds in Ochoa
v. Superior Court (1985) 39 Cal.3d 159, 171; see also Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 437.) If a judgment determines all of a plaintiff’s
rights in one capacity, the judgment may be final even though the action is
still pending on a claim brought in a different capacity. (See First
Security Bank of Cal., N.A. v. Paquet (2002) 98 Cal.App.4th 468,
474-474.) In Dominguez v. City of Alhambra (1981) 118 Cal.App.3d 237, the court
held that denial of a motion for leave to file an amended complaint was
appealable because it operated as a final determination of the plaintiff’s
rights as the administratrix of an estate, even though the plaintiff’s
complaint as an individual remained pending.
(Id. at pp. 241-242.)

Here, the declaratory
action completely disposed of all the issues between Tony and Wally, in her
individual capacity. Thus, the trial
court still had jurisdiction over the cross-action for partition, as that was
between Tony and Wally, in her capacity as the trustee of the original and
amended trust.

2. Jurisdiction
over the Cross-Complaint

Finally, Tony asserts
that the partition cross-action “should have been a nullity.” He maintains that since Wally was sued as an
individual, she could not file a cross-complaint as the trustee.

On
September 24, 2009, Tony filed his answer to Wally’s cross-complaint for
partition. He did not object to the
propriety of the cross-complaint. Tony
did not object to