Benedetto v. Wisch

• Docket Number: A167090
• Decision Date: 27 October 2023
• Parties: XENA BENEDETTO, Plaintiff and Appellant, v. JASON WISCH as Trustee, etc., Defendant and Respondent.
• Court: California Court of Appeals

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XENA BENEDETTO, Plaintiff and Appellant, v. JASON WISCH as Trustee, etc., Defendant and Respondent.

A167090

California Court of Appeals, First District, Second Division

October 27, 2023

NOT TO BE PUBLISHED

Alameda County Super. Ct. No. RG20057092

RICHMAN, J.

BACKGROUND

One tenant-in-common sued the other tenant-in-common for partition, the upshot of which was that the subject property was sold, leaving over $267,000 in proceeds to be distributed. Following a brief court trial, the court issued a comprehensive ruling distributing $148,778.13 to one co-tenant and $118,808.12 to the other, a ruling that explained in detail the basis of the decision. Both co-tenants appeal, filing briefs that are hardly models of appellate advocacy: one brief is three and one-half pages long, and contains no statement of the facts in the dispute the other contains no section entitled argument (or discussion), and no heading labeled argument. We conclude that neither appeal has merit. We do, however, modify the judgment based on the concession by counsel for one co-tenant that the judgment below resulted in a double recovery of $14,995, which amount should be credited to the other co-tenant.

Introduction, the Parties, and the General Setting

This case involves the property located at 2338 W. Avenue 133rd, San Leandro (property or subject property), a case that started with a March 2020 complaint for partition, and ended with the trial court's November 2022 ruling distributing the proceeds of the sale that ensued. The property was held by Xena (AKA Gabriella) Benedetto who was a 50 percent owner of the property, and The Living Trust of Zee Janko (the Janko trust), which held the other 50 percent. Jason Wisch is the trustee of the Janko Trust.

The dispute between that parties involved legal proceedings that predate the complaint here, as on February 13, 2020, following a "court trial," the court (the Honorable Frank Roesch) filed what Wisch calls the "foundational first [j]udgment."^[1] That judgment decreed the "title interests" between Benedetto and the Janko Trust, holding as follows:

"Judgment After Court Trial: Decree of Title Interests to 2338 W Avenue 133rd, San Leandro:

"The court decrees that Plaintiff Zee Janko Living Trust and Defendant Gabriela [Xena] Benedetto own legal title to 2338 W Avenue 133rd, in San Leandro, as tenants in common, and that any sale or other resolution of their joint ownership would be as equal co-owners, save and except that, the court allocates the amount of $14,995.00 to be paid to Benedetto as an equalization of contribution, as well as a sanctions award of $1,350.00."

Two weeks later came the complaint here.

The Proceedings Below

On March 4, 2020, Benedetto filed a complaint for "partition of real property," naming trustee Wisch as defendant.

On May 12, Wisch filed an answer and a cross-complaint.

According to the Register of Actions, Benedetto filed a motion for interlocutory judgment of partition. Wisch filed opposition. And on June 18, the trial Court (the Honorable Noel Wise) granted the motion, this minute order reflecting the proceedings and Judge Wise's holding:

"Cause called for Motion: June 18, 2020.

"Prior to the hearing, the Court issued a tentative ruling, which was not contested and was affirmed as set forth below.

"Plaintiff's Motion for Interlocutory Judgment of Partition is GRANTED, as follows.

"The Court orders that the real property that is the subject of this action be partitioned by sale, as agreed by both parties. The Court declines to appoint a referee to conduct the sale. Instead, as agreed by the parties, they shall accept the pending purchase offer of the subject property and all sales proceeds shall be held in escrow by Fidelity National Title until further order of this Court. The Court will then determine distribution of sales proceeds upon a noticed motion filed by either or both of the parties.

"The Court will sign the proposed order submitted with Plaintiff's reply papers, modified to delete page 2:11-20. On page 2:21-24, the Court will insert 'All sales proceeds shall be held in escrow by Fidelity National Title until further order of this Court. The Court will then determine distribution of sales proceeds upon a noticed motion filed by either or both of the parties.' "

On August 4, Wisch filed a first amended cross-complaint. It was titled "For Slander of Title by 'Trustee's Deed'; Accounting for Rents, Debts and Taxes Paid Without Accounting," but actually alleged two causes of action, styled as "slander of title" and "accounting [and] contribution." Benedetto filed a demurrer. And on October 8, Judge Wise filed her order on that demurrer, sustaining the demurrer to the slander of title claim without leave to amend, and sustaining the demurrer to the accounting claim with leave to amend, but limited to alleging a "claim for contribution and adjustment as part of the subject property's partition sale."^[2]

On October 8, Wisch filed a second amended cross-complaint.

Benedetto filed a motion to amend the "interlocutory judgment," which motion is not in the record. What is there is that on December 17, Judge Wise granted Benedetto's motion to amend the interlocutory judgment of partition, substituting Jorge Mora as the buyer of the property. And her order further stated: "As discussed at the hearing of this motion, if Defendant [Wisch] has evidence that the subject property could have sold at a higher price than the $575,000 offered by Jorge Mora, Defendant may seek to charge some portion or all of that price differential against the sales proceeds to be recovered by [Benedetto] at such time as the Court determines the distribution of the net sales proceeds."

What, if anything, that occurred over the next 15 months or so is not in the record, except for the pleading by Fidelity National Trust Company (Fidelity), the escrow holder, which in May 2021, filed a complaint in interpleader. And, after it deposited the funds in court, Fidelity was dismissed and discharged.

While, as noted, the record does not reveal what transpired in 2021 or early 2022, what we glean from various filings by the court is that it included a June 21, 2022 order granting the parties "stipulation to conduct this matter 'by motion rather than by live testimony,' and directing the parties to file a JOINT statement of undisputed facts and list of exhibits the parties stipulate are admissible, and to format objections to evidence per CRC 3.1354," a stipulation and order, it would develop, with which the parties did not comply.

On September 1, 2022, the parties filed their respective briefs for the hearing on division of the proceeds of the sale of the property. The briefs were accompanied by declarations in claimed support of each party's position, and also objections to evidence.

The matter was apparently scheduled for a court trial on September 29, prior to which the Honorable Jenna Whitman issued a tentative ruling, a ruling that indicated her dismay that the parties had disregarded their duties and their commitments. That tentative ruling read in part as follows:

"RG20057092 Benedetto VS Wisch

"09/29/2022 Court Trial in Department 24

"Tentative Ruling

"Initially, the Court observes that the parties failed to comply with numerous aspects of the 6/21/2022 order, granting their stipulation to conduct this matter 'by Motion rather than by live testimony,' and directing the parties to file a JOINT statement of undisputed facts and list of exhibits the parties stipulate are admissible, and to format objections to evidence per CRC 3.1354.

"The parties did not submit a list of stipulated, undisputed facts or a list of exhibits which are stipulated to be admissible. Given the other issues with the briefing (see below) this greatly increases the Court's work in evaluating the parties' respective claims.

"Defendants' objections to evidence are totally noncompliant. While Plaintiff at least utilized the grid format articulated in CRC 3.1354, Plaintiff does not number its objections, such that the Court cannot easily convey to the parties its tentative rulings on evidentiary objections. Most importantly, the Court is inclined to sustain the objection to the Zukowski declaration, most importantly the compilation attached thereto, as there is no foundation for the underlying expenses and he expressly disclaims the accuracy of the underlying information. Plaintiff could have submitted a declaration authenticating evidence of the underlying expenses, but did not. The Court is inclined to overrule the objections to the Anguiano declaration and her exhibits. She is qualified to testify as to the marketability and fair market value of the subject property during the relevant time frame and has demonstrated personal knowledge of the underlying facts. The court is inclined to exclude Defendant's testimony regarding rents received by Plaintiff as lacking foundation and because the issue was waived by failing to address it in the opening brief.

"The parties are now requesting to present live testimony, although they previously submitted not to do so (see above). The fact that the Court reserved the right to order one or more declarants to submit to examination does not arrogate the same right to the parties. Further, the parties have not identified any witnesses, explained what credibility issues (or other good cause) requires testimony that could not be adequately presented through declarations. They have made no proffers with regard to expected areas of testimony, or provided any time estimates to the Court.

"Moreover Defendant Janko Trust's opening brief does not clearly identify each of the credits or offsets Defendant believes it is entitled to. Some...