Colmet-Daage v. Cremoux CA6 ( 2021 )

Filed 4/5/21 Colmet-Daage v. Cremoux CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
ETIENNE COLMET-DAAGE, H045033
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. 1-15-CV275699)
v.
SEVERINE CREMOUX,
Defendant and Appellant.
This action for partition arises out of a former relationship between respondent
Etienne Colmet-Daage and appellant Severine Cremoux. On April 30, 2010, Cremoux
granted to Colmet-Daage a joint tenancy interest in certain real property located at
613 Remington Drive, Sunnyvale (the property). Cremoux had originally acquired the
property with her husband in 2002; they separated in or about 2009. After the
relationship between Colmet-Daage and Cremoux ended, Cremoux recorded in
October 2013 a Declaration of Severance of Joint Tenancy, thereby creating a tenancy in
common ownership in the property.
Colmet-Daage filed this action for partition in January 2015. Cremoux filed a
cross-complaint seeking, inter alia, cancellation of the 2010 joint tenancy grant deed,
claiming that Colmet-Daage used undue influence to procure its execution. The trial
court conducted two separate proceedings. In the first phase of the trial, the court on
May 19, 2016, denied the relief sought by Cremoux in her cross-complaint and ordered
partition of the property. In the second phase of the trial in August 2016, the trial court
heard evidence concerning Cremoux’s initial investment in the property and the parties’
respective contributions for expenses related to the property, including repairs and
improvements. After submission, the court filed its tentative decision on November 22,
2016.
Thereafter, while the property was in the process of being sold, Cremoux filed a
motion to receive a credit of $200,000 from the sales proceeds. The credit requested was
based upon the assertion that posttrial repairs and improvements she made to the property
enhanced its value by $200,000. The court denied the motion, concluding that Cremoux
had not established that the posttrial work had increased the value of the property. The
court filed a judgment on April 25, 2017.
On appeal from the judgment, Cremoux asserts a number challenges to the court’s
rulings, including the court’s (1) refusal to allocate to Cremoux an ownership interest in
the property of greater than 50 percent, (2) failure to reimburse Cremoux for her initial
investment in the property and expenditures related to it that she made prior to
April 2010, (3) failure to grant Cremoux credits for her contributions to the property from
2013 to its sale, and (4) application of ouster principles to provide for a credit in favor of
Colmet-Daage that was in excess of the amount to which he was entitled.1 Finding that
the court did not abuse its discretion, we will affirm the judgment.
Cremoux does not challenge the court’s order of partition through a sale of the
1
property. She also does not contest the court’s denial of the claims asserted in her cross-
complaint, including the denial of her request for cancellation of the April 2010 grant
deed conveying to Colmet-Daage a joint tenancy interest in the property.
2
I. PROCEDURAL BACKGROUND
A. Pleadings
On January 16, 2015, Colmet-Daage filed a verified complaint against Cremoux2
seeking to quiet title to the property, declaratory relief, and a partition by sale. He
alleged that he was a co-owner with Cremoux of the property as a result of Cremoux’s
execution and recordation of a grant deed on April 30, 2010, conveying the property to
Cremoux and Colmet-Daage as joint tenants. Thereafter, on October 23, 2013, Cremoux
executed and recorded a grant deed severing the joint tenancy with Colmet-Daage,
thereby resulting in the parties’ co-ownership as tenants in common.
Colmet-Daage alleged that there was an actual controversy in that he was not in
possession of the property, while Cremoux was in possession and was collecting rent
which she was not sharing with him, and that he contended he had a right to possession.
He alleged further that, through his attorney, on August 6, 2014, he had made written
demand for concurrent possession of the property, and that Cremoux had refused to
comply with that demand, thereby resulting in an ouster. Colmet-Daage contended that
the court should order a partition sale of the property and that the proceeds be divided in
accordance with the parties’ respective interests because a sale and division was more
equitable than a division of the property.
Colmet-Daage sought in the prayer of the complaint (1) a judicial declaration that
he had a tenancy in common interest with Cremoux in the property, which allowed for
concurrent possession of the property, (2) for judgment quieting Colmet-Daage’s title in
the property, (3) one-half of the rents received by Cremoux, (4) damages due to
2
The complaint also named Washington Mutual Bank/Chase Bank, Citibank
West, and HSBC Bank USA as defendants, alleging that each had at some time claimed
an interest in the property unknown to Colmet-Daage.
3
Cremoux’s ouster of Colmet-Daage, (5) sale of the property, and (6) division of the
proceeds from such sale.
Cremoux cross-complained against Colmet-Daage.3 She asserted claims for
cancellation of deed, to quiet title, fraud, and conversion. Cremoux alleged that in or
about 2010, while the two were in a relationship together, “Colmet-Daage began a
scheme to induce Cremoux to grant him an interest in all of her real and personal
property without paying her any consideration for those interests.” She alleged that at
that time, Colmet-Daage induced her to execute a deed without consideration transferring
a joint tenancy interest in the property to him; she alleged that Colmet-Daage told her that
doing so would “protect it for her family and prevent it from simply transferring to her
husband[,] who [had] left the country[,] if she died.” Cremoux therefore sought relief in
the form of cancellation of the grant deed, and a judicial decree quieting title declaring
Colmet-Daage had no interest in the property.
B. Trial Proceedings May 17, 2016
The first phase of the trial, commencing on May 17, 2016, addressed the issues in
Cremoux’s cross-complaint, including her undue influence claim challenging the validity
of the April 30, 2010 joint tenancy grant deed. After hearing evidence and argument, the
court announced its decision from the bench. The court found no evidence of undue
influence, denied Cremoux’s request for cancellation of the grant deed, ordered partition
of the property, and set the case for further proceedings.4
3
The cross-complaint also named HSBC Bank USA, and JP Morgan Chase Bank
as cross-defendants, alleging that HSBC Bank USA held a deed of trust encumbering the
property.
4
During the first phase of the trial proceedings, Cremoux dismissed a claim in the
cross-complaint for fraud, and a claim for conversion (as to various personal property).
4
C. Trial Proceedings August 22, 2016—Statement of Decision
The court heard evidence from the parties on August 22, 2016, concerning
Cremoux’s claim for reimbursements and credits relative to the property and concerning
Colmet-Daage’s claim for a credit for the fair rental value of the property from the date of
his ouster. The court set a briefing schedule and ordered that the matter would be
deemed submitted on September 2, 2016. On November 22, 2016, the court issued its
tentative decision, which became by operation of law its Statement of Decision.5
In its Statement of Decision, the court concluded that the grant deed executed and
recorded by Cremoux on April 30, 2010, created a joint tenancy in which she and
Colmet-Daage each held a joint interest in equal shares in the property. The court found
that Cremoux’s execution and recordation of the declaration of severance of the joint
tenancy in October 2013 extinguished the right of survivorship and converted the parties’
ownership to a tenancy in common relationship but did not impact their equal-share
status. The court declined to exercise its equitable powers as requested by Cremoux to
find that Cremoux owned a greater interest than Colmet-Daage in the property, and it
declined to order that Colmet-Daage reimburse Cremoux for her contributions toward the
original acquisition of the property.
The court also concluded that there had been an ouster in that Cremoux had
excluded her cotenant, Colmet-Daage, from possession of the property in September
2013, thereby entitling Colmet-Daage to recover one-half of the $2,200 monthly rental
value of the property from that date to the date of the trial in August 2016. The court also
concluded that Cremoux, as the cotenant who paid the mortgage and insurance after the
5
The court recited that the tentative decision would become the court’s statement
of decision unless a party specified the principal controverted issues as to which he or she
sought a statement of decision and prepared a proposed statement of decision and
judgment. (See Cal. Rules of Court, rule 3.1590(c).) The judgment entered in
April 2017, which was approved as to form by both counsel, recites that neither party
objected to the tentative decision or requested a statement of decision.
5
parties separated in 2013, was entitled to reimbursement of one-half of those expenses,
which equaled one-half of the fair rental value. Thus, neither party owed the other any
compensation or credit for such matters.
In its Statement of Decision, the court concluded further that Cremoux had not
established that the repairs and improvements of the property for which she claimed
reimbursement enhanced the value of the property. It found that the expenditures were
for ordinary repairs and maintenance of the property for a period in which Cremoux was
the sole cotenant (as a result of her ouster of Colmet-Daage), and thus declined to grant
her request for reimbursement.
Finally, the court concluded that during their co-ownership of the property, there
were times when Cremoux or Colmet-Daage, by herself or himself, had paid the property
taxes. It found that Cremoux had paid an amount of $28,890.08 more than the amount of
property taxes separately paid by Colmet-Daage, and that she was therefore entitled to a
credit of $14,445.04 from Colmet-Daage’s portion of the sales proceeds of the property.
D. Post-Trial Proceedings and Judgment
After the court issued its Statement of Decision, and while the property was in the
process of being sold, Cremoux filed a motion in March 2017 to receive credit for
contributions she had made to the property after the August 2016 proceedings. She
claimed that since July 1, 2016, she had expended funds for mortgage, insurance, utilities,
and to maintain and improve the property. Cremoux sought a $200,000 credit from the
sales proceeds, which reflected the increase in value of the property resulting from repairs
and improvements she had made to the property.
The court heard argument on the motion on April 6, 2017. The court concluded
that Cremoux did not establish that the expenditures she claimed to have made to
improve the property had enhanced its value, and the court denied the motion.
Judgment was entered on April 25, 2017. It provided, inter alia, that the parties
were owners as tenants in common of the property, each holding an undivided 50 percent
6
interest therein. The court found that sale of the property was more equitable than
division of the property in kind and the parties had agreed to such sale through licensed
real estate brokers. The court ordered further that from the sale of the property, the
proceeds would be applied to pay the expenses of the sale, then pay the lenders holding
deeds of trust secured by the property, then pay Cremoux $14,445.04 as reimbursement
for property taxes, and the residue would then be paid in equal shares to Colmet-Daage
and Cremoux. It was stated further in the judgment that Cremoux was entitled to no
relief on her cross-complaint.
Cremoux filed a timely notice of appeal from the judgment. (See Schwartz v.
Shapiro (1964) 229 Cal.App.2d 238, 242, fn. 1 [interlocutory judgment or decree of
partition appealable].)
II. DISCUSSION
A. Applicable Law
Under section 872.210 of the Code of Civil Procedure,6 a co-owner of real or
personal property may bring an action for partition. It is an equitable proceeding
governed by principles of equity. (American Medical International, Inc. v. Feller (1976)
59 Cal.App.3d 1008, 1013) “ ‘The primary purpose of a partition suit is . . . to partition
the property, that is, to sever the unity of possession. [Citations.]’ [Citation.] ‘Partition
is a remedy much favored by the law. The original purpose of partition was to permit
cotenants to avoid the inconvenience and dissension arising from sharing joint possession
of land. An additional reason to favor partition is the policy of facilitating transmission
of title, thereby avoiding unreasonable restraints on the use and enjoyment of property.’
[Citation.]” (LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 493 (LEG
Investments).) A co-owner of property, absent express or implied waiver, has an absolute
right to partition. (§ 872.710, subd. (b).)
6
Further unspecified statutory references are to the Code of Civil Procedure.
7
Under section 872.210, the court may, as an alternative to effecting a division of
the property between the parties, “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. [Citation.]” (LEG Investments, supra, at
p. 493.)7 Although the law favors division in kind of commonly owned property, “ ‘ “[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 . . . .” ’ [Citation.]” (Cummings v. Dessel (2017) 13
Cal.App.5th 589, 597 (Cummings).)
Every partition action includes a final accounting, including credits and debits to
each cotenant, that is governed by principles of equity. (Wallace v. Daley (1990) 220
Cal.App.3d 1028, 1035.) The credits may “include expenditures in excess of the
cotenant’s fractional share for necessary repairs, improvements that enhance the value of
the property, taxes, payments of principal and interest on mortgages, and other liens,
insurance for the common benefit, and protection and preservation of title. [Citations.]”
(Id. at pp. 1035-1036.) “The question of the respective rights of tenants in common in
partition suits, to the benefit of the enhanced value of land on account of improvements,
and of the right to offset the same by rents and profits derived, depends upon the facts of
a particular case. It involves the questions of good faith, consent of parties, nature of the
improvements, the source and amount of rents and profits, and [other] elements.”
(Buttram v. Finley (1946) 73 Cal.App.2d 536, 544.)
7
The court may employ a third option—not at issue here—of partition by
appraisal “[w]hen the interests of all parties are undisputed or have been adjudicated”
(§ 873.910) and the parties agree to the approach. (§ 873.910 et seq.)
8
“[T]he ordering of an accounting under the partition statute falls under the wide
range of discretion accorded a court in equity.” (Finney v. Gomez (2003) 111
Cal.App.4th 527, 542 (Finney).) Because an action for partition is an equitable
proceeding, it is governed by the principle that “[a] court of equity has broad powers and
comparatively unlimited discretion to do equity without being bound by any strict rules
of procedure.” (Richmond v. Dofflemyer (1980) 105 Cal.App.3d 745, 766 (Richmond).)
B. Standard of Review
“The standard of review for an interlocutory judgment of partition is abuse of
discretion. [Citations.] Under that standard, ‘[t]he trial court’s “application of the law to
the facts is reversible only if arbitrary and capricious.” [Citation.]’ [Citation.] ‘[A]
disposition that rests on an error of law [also] constitutes an abuse of discretion.
[Citation.]’ [Citation.]” (Cummings, supra, 13 Cal.App.5th at p. 597.)
The matter of whether an ouster of a cotenant has occurred is a question of law
which is reviewed de novo. (Estate of Hughes (1992) 5 Cal.App.4th 1607, 1612.) But
we defer to the trial court regarding its factual findings in support of the question of
ouster where the facts are disputed. (Ibid.)
C. Allocation of Ownership Interests
Cremoux contends in her appellate brief8 that the trial court erred by failing to
allocate to her a greater than 50 percent ownership interest of the property after
considering the parties’ respective contributions. Cremoux contends that she purchased
the property with no contribution from Colmet-Daage, and that over the years, her
contributions to the property “far exceeded the limited contribution Colmet-Daage
provided after he acquired his interest as co-owner.” She argues that, had the court
considered “the vast disparity” of the parties’ respective contributions to the property, it
8
Cremoux filed an opening brief but elected not to file a reply brief.
9
should have found that Cremoux had at least a 96 percent interest and that Colmet-Daage
had at most a four percent interest in the property.
Initially, we observe that Cremoux’s arguments to the effect that there was a “vast
disparity” between the parties’ respective contributions to the property and that
Cremoux’s interest in the property was at least 96 percent are unsupported by proper
citations to the record. She does not identify where in the trial record it was supposedly
established that there was a “vast disparity” in the parties’ contributions, nor does she cite
to evidence supporting her claim to a 96 percent property interest. The failure to provide
proper citations to the appellate record—either the clerk’s or reporter’s transcript—
supporting matters referred to in the court below violates court rules. (See Cal. Rules of
Court, rule 8.204(a)(1)(C) [matters referenced from the record in appellate briefs must be
supported “by a citation to the volume and page number of the record where the matter
appears”].) “ ‘Any statement in a brief concerning matters in the appellate record—
whether factual or procedural and no matter where in the brief the reference to the record
occurs—must be supported by a citation to the record.’ [Citation.]” (Professional
Collection Consultants v. Lauron (2017) 8 Cal.App.5th 958, 970, original italics.) The
appellate court may disregard any contentions made without citation to the record
supporting them. (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239 (City
of Lincoln); see also In re S.C. (2006) 138 Cal.App.4th 396, 406 [appellate court is not
required to search the record to discover support for litigant’s position].) We will
nonetheless address Cremoux’s unsupported argument.
“Joint tenancy is a joint interest owned by two or more persons in equal shares.
[Citation.]” (Cole v. Cole (1956) 139 Cal.App.2d 691, 695 (Cole), citing Civ. Code,
§ 683.) Further, where, as here, the deed reflects joint tenancy interests, there is “a prima
facie case that the property is actually owned in joint tenancy. There is a presumption
that ownership is as stated in the deed and the burden is upon the party who seeks to rebut
the presumption. [Citations.]” (Weak v. Weak (1962) 202 Cal.App.2d 632, 638.) “The
10
principal characteristic of joint tenancy is the right of survivorship.” (Estate of Propst
(1990) 50 Cal.3d 448, 455.)
One joint tenant has “[a]n indisputable right” to sever the joint tenancy. (Riddle v.
Harmon (1980) 102 Cal.App.3d 524, 527.) Civil Code section 683.2 provides various
specific methods of severance of a joint tenancy, which constitute “a nonexclusive list.”
(Walters v. Boosinger (2016) 2 Cal.App.5th 421, 434.). One method is the recordation of
a declaration of severance. (Civ. Code, § 683.2, subd. (a)(2).) A severance of the joint
tenancy extinguishes the right of survivorship and transforms the joint tenancy into a
tenancy in common. (Estate of Mitchell (1999) 76 Cal.App.4th 1378, 1385; see also
Zanelli v. McGrath (2008) 166 Cal.App.4th 615, 630 [except for joint tenancy’s right of
survivorship, “the rights of tenants in common and joint tenants with respect to property
are the same”].) “Because a tenant in common also has an undivided fractional interest in
the property [citation], the unilateral severance of the joint tenancy by a joint tenant does
not deprive other joint tenants of their fractional shares. [Citation.]” (Estate of Propst,
supra, 50 Cal.3d at pp. 455-456.)
The trial court properly applied these legal principles here. In its Statement of
Decision, the court began its analysis with the April 30, 2010 grant deed in which
Cremoux conveyed a joint tenancy interest in the property to Colmet-Daage and herself.
Relying on Cole, supra, 139 Cal.App.2d at page 695 and Civil Code section 683, the
court concluded that the parties owned equal shares of the property as of the date of the
grant deed. Cremoux testified that she wrote by hand and signed the following statement
on the grant deed: “I declare under penalty of perjury that the loans and encumbrance
exceed the current fair market value.” In the first phase of the trial, the court placed
“great significance” on the fact that when Cremoux signed the grant deed, there was no
equity in the property. The court concluded that when the grant deed was signed in 2010,
“Colmet-Daage was actually taking on a debt rather than an asset.” The trial court found
that Cremoux’s execution and recordation of the October 2013 declaration of severance
11
resulted in extinguishing the right of survivorship but the parties continued to own equal
shares of the property as tenants in common.” (See Estate of Propst, supra, 50 Cal.3d at
pp. 455-456; Estate of Mitchell, supra, 76 Cal.App.4th at p. 1385.)
The trial court declined Cremoux’s request that it find, as a court of equity, that
Cremoux had a greater than 50 percent interest in the property. In so holding, the court—
drawing in part upon the evidence presented at the first phase of the trial and the court’s
conclusions thereon—concluded that (1) there was no discussion between the parties in
April 2010 regarding the respective percentage of ownership interests they would hold;
(2) Cremoux never expressed to Colmet-Daage her intention to retain a greater than equal
interest; (3) at the time of the grant deed, “the loans and encumbrances on the property
exceeded [its] fair market value”; (4) Cremoux never expressed a wish or expectation to
be reimbursed for funds she spent to originally acquire the property; (5) Cremoux sought
advice from an accountant and a real estate agent and, notwithstanding that guidance,
executed the grant deed without expressing an intention that the parties’ ownership
interests would be anything other than presumptive equal interests; (6) Cremoux executed
the grant deed without undue influence; (7) the parties “were involved in a loving
relationship, blending their families”; (8) Colmet-Daage used his own funds to pay the
daily living expenses for Cremoux and her children, including her daughter’s college
tuition;9 (9) Colmet-Daage paid the property taxes and other expenses for the property
both before and after execution of the grant deed; and (10) “it was probable that [Colmet-
Daage] would have cared for and raised [Cremoux’s] children if anything had happened
to [Cremoux] during their relationship.”10 The trial court therefore not only applied its
9
There was testimony from Colmet-Daage at the first phase of the trial that from
approximately June 2009 to January 2013, he had expended approximately $450,000 of
his funds in the relationship.
10
In the first phase of the trial, the trial court, in concluding that the joint tenancy
deed was not procured through undue influence, found that “Mr. Colmet-Daage treated
Ms. Cremoux and her children as if he was married to her and as if her children were his
12
broad equitable powers in deciding Cremoux’s claim of unequal ownership interest; it
provided a substantial record of its reasons for declining that claim.
Cremoux relies on Cosler v. Norwood (1950) 97 Cal.App.2d 665 (Cosler) in
support of her position that the court erred in failing to award her a greater than equal
interest in the property. The parties there, taking title as joint tenants, purchased certain
property for $27,000 with the understanding they would contribute equally to the
purchase price. (Id. at p. 666.) The plaintiff contributed only one quarter of the purchase
price, and the defendant paid the balance. (Ibid.) The court found that the plaintiff and
the defendant owned one-fourth and three-fourth interests in the property, respectively.
(Ibid.) The appellate court affirmed, rejecting the plaintiff’s argument that the defendant
was estopped from asserting a greater than one-half interest because the parties took title
as joint tenants. (Ibid.) The court concluded that the plaintiff, “by seeking a partition and
an accounting put in issue the interest of each of the parties to the real property in
question. Therefore the deed of joint tenancy was only one item of evidence to be
considered by the court in connection with other probative facts produced by plaintiff and
defendant.” (Ibid.)
Cosler is distinguishable and does not support Cremoux’s claim. Here, there was
no evidence that the parties on April 30, 2010, made unequal contributions to acquire the
property jointly. Rather, the evidence was that the property had no equity at the time,
neither party contributed funds at the time, and, as found by the court, at the time,
own before and after she executed the April 2010 joint tenancy deed. [¶] First, he agreed
to find and did find a home in Los Altos large enough to accommodate all seven of their
children so that Ms. Cremoux’s eldest daughter Julie could continue to attend Los Altos
High School and so that her education was not disrupted. This was at a cost of $6000 per
month for rent alone, a tremendous monthly expense. [¶] The family often had to use
money from Mr. Colmet-Daage's personal savings account to cover the family’s monthly
expenses. Also, he paid for Ms. Cremoux’s eldest daughter’s college tuition with his
credit card, even though she did not think of him as her stepfather or think highly of him.
These are not the actions of a man who was only looking out for his own advantage.”
13
“Colmet-Daage was actually taking on a debt rather than an asset.” While Cosler stands
for the proposition that, in a particular case, the court in considering all the evidence may
conclude that parties purportedly holding property as joint tenants have unequal
ownership shares, that case does not compel or even suggest such a conclusion should
have been reached here by the trial court.
Cremoux also relies on Kershman v. Kershman (1961) 192 Cal.App.2d 24(Kershman). In Kershman, the parties purchased property while they were married and
held title as joint tenants, with the plaintiff contributing $8,014 from her separate funds
and the defendant contributing $1,000 from a bank account held in his name containing a
portion of his earnings. (Id. at p. 25.) The trial court determined that the plaintiff and the
defendant held 93.3 percent and 6.7 percent interests in the property, respectively. (Id. at
p. 26.) The defendant challenged this finding, arguing that the trial court was required to
order an equal division of the proceeds from the partition sale of the property based upon
the joint tenancy deed. (Ibid.) Relying on Cosler, supra, 97 Cal.App.2d 665, the
appellate court disagreed, concluding that the record contained sufficient evidence that,
the joint tenancy deed notwithstanding, the parties had agreed to unequal ownership
interests. (Kershman, supra, at pp. 26-27.)11
Kershman does not support Cremoux’s claim of error. The Kershman court’s
conclusion that sufficient evidence supported the trial court’s finding that the parties had
unequal property interests has no bearing on whether the court erred here by concluding
that the parties owned the property equally, and that the evidence did not support the
unequal ownership that was claimed by Cremoux. The trial court here provided ample
11
Although not relevant to Cremoux’s claim of error here, the appellate court in
Kershman ultimately reversed the judgment, concluding that while the trial court’s
finding that the parties agreed to unequal ownership of the property was supportable, its
conclusion that the respective interests were 93.3 percent and 6.7 percent was not
supportable. (Kershman, supra, 192 Cal.App.2d at pp. 27-30.)
14
justification—including the joint tenancy grant deed, the conversion to tenancy in
common interests, and the absence of evidence that the parties intended anything other
than equal ownership—to conclude that the parties at all times after April 30, 2010,
retained equal ownership interests in the property.
Lastly, Cremoux takes issue with the trial court’s statement that “[Cremoux]
meant to, and did, gift an equal share of the property to [Colmet-Daage] as a joint tenant
with a right of survivorship.” She argues that there was no substantial evidence to
support this conclusion and it was contrary to the evidence at trial. Irrespective of
whether there was evidentiary support for this statement, it is axiomatic that, “[a]s an
appellate court, we generally review the trial court’s ruling, not the reasons it gave for
that ruling. [Citations.]” (City of Morgan Hill v. Bay Area Air Quality Management
Dist. (2004) 118 Cal.App.4th 861, 870.) As discussed, ante, there were ample reasons
supporting the trial court’s exercise of discretion in denying Cremoux’s request that she
be found to be the equitable owner of more than a 50 percent interest in the property.
The court did not err.
D. Reimbursement—Initial Investment and Expenditures
As an alternative to her argument that the trial court should have adjusted her
percentage interest in the property, Cremoux contends that she should have received “an
accounting and compensatory adjustments for her investment and expenditures in the
[p]roperty” made before April 2010. She contends that it was undisputed that she had
contributed a cash down payment of $133,000 in 2002 for the purchase price and had
paid expenses on the property (loan, tax, insurance) before April 2010. And, Cremoux
contends, there was no dispute the property had appreciated in value by at least $235,000
from 2002-2010. She asserts that the court should have therefore done equity by
15
allocating the amount of $235,000 in her favor from the sales proceeds before dividing
the remaining net proceeds between the parties.12
There were substantial grounds upon which the trial court declined to exercise its
equitable powers to credit to Cremoux the pre-2010 appreciation in value of the property.
Most of the court’s reasons for denying Cremoux’s alternative request for a determination
that she owned a greater interest in the property apply here: (1) the parties did not
discuss their respective percentage of ownership interests; (2) Cremoux never expressed
an intention to retain a greater than equal interest; (3) at the time of the grant deed, the
loans and encumbrances against the property exceeded its fair market value; (4) Cremoux
never stated that she expected to be reimbursed for funds she spent to acquire the
property; (5) Colmet-Daage used his own funds to pay the daily living expenses for
Cremoux and her children; and (6) Colmet-Daage paid the property taxes and other
expenses for the property both before and after execution of the grant deed.
Cremoux makes much of the fact that the evidence was undisputed that the
property—between its purchase in 2002 for $655,000 with a down payment of $133,000
and April 30, 2010—had appreciated in value by $235,000 to $900,000.13 But as noted—
and as declared under penalty of perjury by Cremoux in the grant deed—as of April 30,
2010, the debts against the property exceeded $900,000. By April 2010, Cremoux had
12
Cremoux also argues that she should receive “compensatory adjustments to
reflect [her] down payment . . . and loan, insurance and tax payments between her
purchase in 2002 and April 30, 2010.” Although her argument is somewhat ambiguous,
we understand her position to be that the court should have allocated to her $235,000
from the sales proceeds as a means of addressing her contributions (in an unspecified
amount) to the property that preceded execution and recordation of the joint tenancy
grant deed in April 2010.
13
In her appellate brief, Cremoux does not mention that she wrote by hand under
penalty of perjury on the April 30, 2010 grant deed that the debt against the property
exceeded its fair market value, and that the court found in its Statement of Decision that
the debt exceeded the property’s value.
16
thus received (through the loan proceeds on the line of credit) the funds back from her
down payment and the appreciation in value of the property. This circumstance
prompted the trial court in the first phase of the trial to observe that when the grant deed
was signed in 2010, “Colmet-Daage was actually taking on a debt rather than an asset.”14
Therefore, notwithstanding Cremoux’s insistence that the trial court should have done
equity by reimbursing her $235,000 (i.e., the appreciation in value as of April 2010) from
the sales proceeds, the court’s having done so would have effectively resulted in Colmet-
Daage acquiring a one-half interest in the debt-ridden property for $235,000.
Cremoux argues that the trial court in its Statement of Decision improperly relied
on Milian v. DeLeon (1986) 181 Cal.App.3d 1185 (Milian) in rejecting her claim for
reimbursement of the appreciation in value of the property. There, the plaintiff and the
defendant, while they were together in a romantic relationship, purchased real property
by a joint tenancy grant deed. (Id. at p. 1189.) In the partition action that followed the
end of the parties’ relationship, the trial court ordered partition of the property by sale
with the proceeds divided equally between the parties without an accounting. (Id. at p.
1192.) The trial court found “that in purchasing the property the parties intended [to
create] and created a true joint tenancy.” (Id. at p. 1194.) The plaintiff, who contributed
most of the down payment (id. at p. 1190), challenged the decision on the grounds, inter
alia, that the trial court had failed to provide for an accounting and reimbursement of the
parties’ respective contributions to the property (id. at p. 1194).
The appellate court rejected the challenge, finding that there was substantial
evidence supporting the trial “court’s finding that the parties agreed to own and divide the
property equally irrespective of the exact dollar amounts each contributed to the
acquisition, improvement, maintenance and preservation of the property.” (Milian,
14
The court stated further that “[t]he reality is that [Colmet-Daage] invested three
additional years after the execution of the deed in a relationship at considerable expense
and responsibility for an uncertain gain in the real estate market.”
17
supra, 181 Cal.App.3d at p. 1196.) The Milian court noted that it was aware of no cases
“in which a true joint tenancy was found and yet an accounting and contribution was
ordered because of disproportionate contributions by the parties to the original purchase
price.” (Id. at p. 1195.) It explained that “once the court in a partition action has
determined that a true joint tenancy exists, it may not order reimbursement or
contribution on account of differences in the amounts the parties have paid toward the
initial acquisition of the property. Of course, if one joint tenant has advanced funds on
behalf of the other and there is an agreement between them for reimbursement in the
event of sale of the property, that agreement can be enforced by the court. [Citation.]
However, by definition[,] joint tenancy ownership means equal ownership (see Civ.
Code, § 683), and in the absence of an agreement for reimbursement we are unaware of
any authority which authorizes reimbursement on account of unequal contributions to the
down payment.” (Ibid., italics added, fns. omitted.)
The trial court below, reciting the Milian passage last-quoted above, reasoned that
because there was no evidence the parties here agreed that Colmet-Daage would
reimburse Cremoux for the contribution she and her husband had made for the down
payment to acquire the property, there was no authority for the court to authorize such
reimbursement to Cremoux. She contends it was error for the trial court to have applied
Milian because in the present case, there was “no ‘true joint tenancy,’ ” in that the parties
were tenants in common at the time of the partition action, and the parties did not
purchase the property together in 2002.
Cremoux’s position is without merit. The court found, based upon the evidence,
that the presumption of joint tenancy under Civil Code section 683 created by the
April 30, 2010 grant deed had not been rebutted. The court properly looked at the
ownership circumstances as of April 2010 to find that there was a joint tenancy between
the parties creating equal interests in the property. Because the parties’ equal ownership
interests did not change in October 2013 with the severance of the joint tenancy and the
18
transformation of the parties’ relationship to that of tenants in common (see Estate of
Propst, supra, 50 Cal.3d at pp. 455-456)—as the trial court so found—it is of no
consequence that at the time the partition action was filed, the parties’ status as joint
tenants no longer existed. Cremoux also argues that Milian supports her position, insofar
as the court, citing Kershman, supra, 192 Cal.App.2d 24 and Cosler, supra, 97
Cal.App.2d 665, held that “because in a suit for partition all parties’ interests in the
property may be put in issue regardless of the record title [citations], and the court may
consider the fact the parties have contributed different amounts to the purchase price in
determining whether a true joint tenancy was intended [citations].” (Milian, supra, 181
Cal.App.3d at pp. 1195-1196.) But as we have discussed, ante, the court here did find—
and it was not compelled under Kershman or Cosler to reach a contrary conclusion even
though Cremoux initially acquired the property without Colmet-Daage’s involvement—
that the grant deed created a true joint tenancy between the parties.
Finally, Cremoux argues that the court should have used the “Moore-Marsden
formula developed in family law” to effect “an equitable allocation of the residual
proceeds from [the] partition sale.” Under the “Moore/Marsden rule,”15 “[w]hen
community property is used to reduce the principal balance of a mortgage on one
spouse’s separate property, the community acquires a pro tanto interest in the property.
[Citations.] . . . The Moore/Marsden rule has been extended to cases involving separate
commercial property. [Citation.] It has also been applied where the parties refinanced a
separate residential mortgage during marriage. [Citation.]” (Bono v. Clark (2002) 103
Cal.App.4th 1409, 1421-1422.)
After acknowledging that the present case “is not based in family law,” Cremoux
makes the one-sentence argument: “Even though Cremoux and Colmet-Daage were not,
15
See In re Marriage of Moore (1980) 28 Cal.3d 366, 371-372; In re Marriage of
Marsden (1982) 130 Cal.App.3d 426, 436-440.
19
and could not, be married during the period of co-ownership, their respective investments
in the [p]roperty are akin to a spouse bringing separate property into a marriage.” This
conclusory argument, devoid of legal authority in support of the proposition that the
Moore/Marsden rule should be applied outside of the family law context, is inadequate to
bring the issue before this court. (See Nisei Farmers League v. Labor & Workforce
Development Agency (2019) 30 Cal.App.5th 997, 1018 (Nisei Farmers) [arguments in
briefs raised in perfunctory fashion will be deemed by the appellate court to be
abandoned]; People ex rel. 20th Century Ins. Co. v. Building Permit Consultants, Inc.
(2000) 86 Cal.App.4th 280, 284 [failure to cite legal authority for position in appellate
brief “amounts to an abandonment of the issue”].)
E. Reimbursement—Repairs and Improvements (2013-2017)
Cremoux contends that the court erred in failing to provide a compensatory
adjustment for expenditures made by her after January 31, 2013, to maintain, preserve
and enhance the value of the property. These expenditures fall into two categories:
(1) expenditures made between February 1, 2013, and the second phase of the trial in
August 2016, which were addressed by the court in its statement of decision of
November 22, 2016 (hereafter, the pretrial expenditures); and (2) expenditures made after
the second phase of trial between August 2016 and March 2017, which were addressed in
Cremoux’s posttrial motion that was heard on April 6, 2017 (hereafter, the posttrial
expenditures). These two categories of expenditures are discussed separately below.
1. Pretrial Expenditures (February 2013 to August 2016)
Cremoux argues that she made substantial pretrial expenditures that constituted
repairs and improvements to the property that totaled $173,439.16 She also contends that
16
In her appellate brief, Cremoux states that the total pretrial expenditures of
$173,439 “include[d] post-trial, pre-sale improvements and repairs totaling $40,862.16.”
We are uncertain whether this figure of $40,862.16 is part of the total amount of posttrial
repair expenditures of $43,505 identified in Cremoux’s motion for posttrial expenditures
20
she made all loan, tax, insurance, and utility payments relative to the property after
January 31, 2013. Cremoux acknowledges that the trial court credited her for one-half of
the loan and insurance expenditures. The court offset against those expenditures a credit
in favor of Colmet-Daage for one-half of the fair rental value of the property for the same
period, based upon a finding that there had been an ouster. Cremoux challenges the
amount the court credited Colmet-Daage for the property’s fair rental value during the
period of ouster. (This offset issue is addressed in section II.F., post.)17
As a general rule, in a partition action, “a court of equity is required to take into
account the improvements which another cotenant, at his [or her] own cost in good faith,
placed on the property which enhanced its value and to award such cost to him [or her].
[Citation.]” (Mercola v. Chester (1950) 97 Cal.App.2d 140, 143, italics added
(Mercola).) Here, however, the trial court found that “[Cremoux] failed to provide any
evidence that any of the alleged repairs or maintenance enhanced the value of the
[p]roperty.”
In her appellate brief, Cremoux points to no evidence that she presented that tied
any pretrial expenditures she made for work on the property to an enhancement of its
value. Instead, Cremoux, without elaboration, argues conclusorily: “The trial court
decided none of the expenditures made since 2013 added value to the [p]roperty. This
finding cannot be supported on the substantial expenditures made by Cremoux between
January 2013 and mid-2016 in maintaining and preserving the [p]roperty.” We need not
discussed, post. If so, it would appear that Cremoux claimed improvements and repairs
of $40,862.16 at both the second phase of the trial, and (indirectly by arguing them as the
basis for awarding a credit of $200,000 for the enhancement of the value of the property
upon sale) in the posttrial motion. Because we conclude that the trial court did not err in
denying Cremoux’s claims related to expenditures made for work on the property from
2013 (both pretrial and posttrial), it is unnecessary for us to resolve this discrepancy here.
17
Cremoux acknowledges that the trial court provided her a credit for the amount
of property tax expenditures she made that exceeded those made by Colmet-Daage.
Cremoux does not challenge this issue on appeal.
21
consider this conclusory and undeveloped argument. (See Nisei Farmers, supra, 30
Cal.App.5th at p. 1018 [perfunctory appellate arguments deemed abandoned]; Benach v.
County of Los Angeles (2007) 149 Cal.App.4th 836, 852.) [“conclusory presentation,
without pertinent argument or an attempt to apply the law to the circumstances of this
case, is inadequate,” and the argument is considered abandoned].) Even were we to
address the unsupported contention, we would conclude the trial court did not err in
finding that Cremoux had failed to meet her burden of establishing that the expenditures
she claimed she made for work on the property enhanced its value.
The trial court acknowledged that Cremoux had “submitted numerous invoices,
receipts, and estimates for alleged repairs and improvements to the [p]roperty for which
she request[ed] reimbursement. . . . However, some of the receipts were mere estimates
with no proof of payment and [Cremoux] admitted that some ‘improvements’ were not
required by applicable building codes. Moreover, [Cremoux] failed to provide any
evidence that any of the alleged repairs or maintenance enhanced the value of the
[p]roperty. In addition, the expenditures appear to be for items which enhanced the use
and enjoyment of the [p]roperty by [Cremoux] and her family while they solely occupied
the [p]roperty to the exclusion of [Colmet-Daage].” The court accordingly found “that
the expenditures were only for the ordinary type of repairs for maintenance and
preservation of the property while Cremoux was the sole [occupying] cotenant and the
court will decline to order reimbursement to [Cremoux].”18
It is thus clear that the trial court concluded that Cremoux had failed to meet her
evidentiary burden to justify reimbursement of her claimed expenses. This finding was
based upon her failure to prove that the repairs allegedly made at her expense actually
18
Cremoux in her appellate brief omits any reference to the trial court’s reasons in
the Statement of Decision for denying the request for reimbursement of expenses,
including the court’s conclusion that there was a lack of proof that the alleged repairs
enhanced the value of the property.
22
enhanced the value of the property. This finding also appears to have been based on the
court’s concern as to whether at least some of the expenses claimed had actually been
incurred. The court’s conclusion was founded upon its weighing of the evidence, and its
assessment of the credibility of the witnesses, particularly Cremoux’s credibility. We
defer to the trial court on such matters, as it is axiomatic that an appellate court “has no
power to judge the effect or value of, or to weigh the evidence; to consider the credibility
of witnesses; or to resolve conflicts in, or make inferences or deductions from the
evidence.” (In re Sheila B. (1993) 19 Cal.App.4th 187, 199.)
Cremoux argues that the court’s finding that “the expenditures made since 2013
[did not add] value to the [p]roperty . . . cannot be supported [by the evidence of] the
substantial expenditures made by Cremoux between January 2013 and mid-2016.” In
making this argument, including her assertion that “Colmet-Daage offered no
contradictory evidence,” Cremoux appears to suggest that we review for substantial
evidence the court’s decision to deny her request for a credit for the pretrial expenditures.
She is mistaken. When it is clear, as is the case here, that the trial court’s decision was
based upon it having “ ‘expressly or implicitly concluded that the party with the burden
of proof did not carry the burden and that party appeals, it is misleading to characterize
the failure-of-proof issue as whether substantial evidence supports the judgment. This
follows because such a characterization is conceptually one that allows an attack on
(1) the evidence supporting the party who had no burden of proof, and (2) the trier of
fact’s unassailable conclusion that the party with the burden did not prove one or more
elements of the case [citations]. [¶] Thus, where the issue on appeal turns on a failure of
proof at trial, the question for a reviewing court becomes whether the evidence compels a
finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question
becomes whether the appellant's evidence was (1) “uncontradicted and unimpeached” and
(2) “of such a character and weight as to leave no room for a judicial determination that it
was insufficient to support a finding.” ’ [Citation.]” (Sonic Manufacturing Technologies,
23
Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465-466, italics added (Sonic
Manufacturing).) Viewing the trial court’s rejection of Cremoux’s claim of entitlement
to reimbursement of expenses allegedly made to improve the property from the proper
lens of a failure of proof, the court did not err, because Cremoux’s evidence did not
“ ‘compel[] a finding in favor of [Cremoux] favor as a matter of law.’ ” (Sonic
Manufacturing, supra, at p. 466.)
Cremoux argues further that the trial court erred in relying on Gerontopoulos v.
Gerontopoulos (1937) 20 Cal.App.2d 261 (Gerontopoulos) in denying her claim for
reimbursement of expenditures for repairs and improvements. In Gerontopoulos, the
plaintiff originally owned certain property with his brother as tenants in common; the
brother’s interest was later transferred to his spouse in a divorce decree. (Id. at p. 263.)
The plaintiff brought a partition action against his ex-sister-in-law. (Ibid.) In her appeal
from the judgment of partition declaring that the parties each held undivided one-half
interests in the property as tenants in common, the defendant argued, inter alia, that the
trial court erred in strictly limiting the contributions made by her ex-husband and her for
improvements to the property. (Id. at p. 265.) The appellate court rejected the challenge,
holding: “The evidence affirmatively showed that [the] plaintiff did contribute his share
of some of the alleged expenditures. It further appeared that most of the alleged
expenditures were for the ordinary type of repairs and improvements and that they were
made after [the] plaintiff had ceased to occupy the premises. These expenditures were
apparently made primarily for the benefit of [the] defendant and her husband, who
actually occupied the premises as their home and who paid no compensation to [the]
plaintiff therefor from 1927 until the date of trial. Under these circumstances, it does not
appear that the trial court erred in limiting plaintiff’s contribution to the amount specified.
[Citation.]” (Ibid.)
Cremoux argues that Gerontopoulos is distinguishable because here, Colmet-
Daage did not contribute to any of the expenditures made by Cremoux to repair or
24
improve the property, and the trial court here did compensate Colmet-Daage for
Cremoux’s use of the property. She argues, therefore, Gerontopoulos did not provide “a
basis to outright deny” reimbursement for Cremoux’s expenditures to improve and repair
the property. Cremoux’s position lacks merit.
While it is true that the plaintiff in Gerontopoulos made some contribution to
expenditures made for repairs, a court of equity, as held in that case, may deny a cotenant
compensation for repair expenditures made while he or she occupied the property to the
exclusion of the cotenant and which expenditures were made primarily for the occupying
cotenant’s benefit. (Gerontopoulos, supra, 20 Cal.App.2d at p. 265; see also 4 Miller &
Starr, Cal. Real Estate (4th ed.2020) § 11:19, pp. 11-52 to 11-53 (4 Miller & Starr):
“When one cotenant has made expenditures that were only for the ordinary type of
repairs for maintenance and preservation of the property, and the property was occupied
solely by the cotenant making the expenditures, the court may refuse to reimburse that
cotenant.”) The court, exercising its broad equitable powers, elected to deny Cremoux’s
request for an accounting and reimbursement for pretrial expenditures she claimed that
she had made for repairs to the property. There was no abuse of discretion. (See Finney,
supra, 111 Cal.App.4th at p. 542 [accounting ordered in partition action “falls under the
wide range of discretion accorded a court in equity”].)
2. Posttrial Expenditures (August 2016-March 2017)
Cremoux argues that she made substantial posttrial expenditures for repairs and
improvements totaling $43,505 that enhanced the value of the property.19 She contends
that they were improvements and repairs requested by Colmet-Daage’s real estate agent
in conjunction with the anticipated sale of the property, and that Colmet-Daage made no
financial contribution to this work. Cremoux contends that the trial court’s failure to
make “compensatory adjustments” to account for her contributions was “prejudicial
19
See footnote 16, ante.
25
error.” Although Cremoux does not specifically identify what “compensatory
adjustments” the trial court erroneously failed to make, we understand the adjustment
would have been for a credit of $200,000—that sum representing the increase in value of
the property directly resulting from Cremoux’s posttrial improvements and repairs.20
In her posttrial motion, Cremoux requested a credit for contributions she had made
to the property after the August 2016 proceedings. She claimed that since July 1, 2016,
she had made mortgage, insurance, and utility payments for the property and had paid
$43,505 to maintain and improve the property. Cremoux asserted that her contributions
had enhanced the value of the property by at least $200,000, and she sought the benefit of
this appreciation in value as a credit for her share of the proceeds from the sale of the
property. In support of this contention, Cremoux submitted (1) the declaration of her real
estate agent, Margery Walsh, who stated she understood that Cremoux had made certain
presale improvements to the property,21 and that based upon her experience, “these
improvements added significant value to the Remington Drive [p]roperty”; and (2) the
declaration of Cremoux in which she stated that there had been a February 2017 offer to
buy the property for $1,528,888, the property sold for $1,725,000, and she “believe[d] the
increase in the sales price of approximately $200,000 was due entirely to the
improvements [she] made without any contribution.” Cremoux asserted further that
20
Our understanding is based upon the fact that in her written motion, Cremoux
sought a $200,000 credit based upon the claimed appreciation in value of the property
due to her repairs and improvements. At the hearing on the motion, her counsel
reiterated the request that the court award Cremoux $200,000, representing the increase
in property value from the repairs and improvements.
21
Walsh declared that she understood this work to have included baseboard work,
closing off the master bedroom, installation of heating in the back room, interior and
exterior painting, repair and replacement of windows, installation of missing countertops,
installation of bathroom mirrors, completion of granite work on the fireplace, refinishing
the bathtub, tilework in the master bath, front yard improvements, installation of new
interior door hardware, electrical work, and replacement of bathroom lights.
26
Colmet-Daage was not entitled to an equitable offset for the fair rental value of the
property because Cremoux was no longer in exclusive possession of the property and
thus the principles of ouster no longer applied. In her declaration, Cremoux stated that
she had a lease for property in Mountain View, her business address was in San Jose, and
that the Sunnyvale property had not been occupied since September 1, 2016.
Colmet-Daage opposed the motion. He contended that Cremoux had submitted no
evidence establishing her claim that the work she performed on the property had
enhanced the property’s value. Colmet-Daage argued that the work Cremoux
performed—which was done without his knowledge or approval, despite him having
advised her in August 2016 that he did not want any work done without discussing it with
him first—“did not so much ‘improve’ the property, as she repaired the issues she herself
allowed to occur in the home while she exclusively used and possessed the property over
the last three years.”22 He asserted that the increase from two initial offers, which were
for $1,528,888 and $1,525,000, to the ultimate sales price of $1,725,000 was due to a
particularly motivated buyer who bid well over the asking price, and then increased his
offer by $50,000, effectively “over[]bid[ding] himself only 24 hours after making his
initial offer.” Colmet-Daage also took issue with the evidence Cremoux presented to
support her claimed expenditures. Lastly, Colmet-Daage asserted that Cremoux
continued to have exclusive control over the property; had delayed listing it for sale until
January 2017, notwithstanding a court order that it be listed by September 6, 2016; had
instructed her real estate agent that she be present whenever Colmet-Daage was at the
property; had refused to give Colmet-Daage the access code to the property; had
submitted utility bills as exhibits to the motion that were in excess of $200 per month,
22
Colmet-Daage contended that Cremoux, a contractor herself with her own
business, had “dismantled the kitchen cabinets and countertops,” left other projects
unfinished, hired subcontractors who negligently installed windows, and left many
cosmetic issues unattended.
27
suggesting that she was still living at the property; had continued to have the property
listed as her business address according to the Contractor’s State License Board; and was
not living in a Mountain View apartment pursuant to a lease as claimed.23
After hearing argument on Cremoux’s motion on April 6, 2017, the trial court
denied Cremoux’s request for a credit for the increase in value of the property based upon
her claim of posttrial repairs and improvements. In support of its ruling, the court found
that Cremoux had neither given notice to, nor sought approval from, Colmet-Daage at the
time she performed the work on the property. It concluded from the evidence that
Cremoux had continued living in the home or had otherwise continued to use the property
after the August 2016 trial; therefore, the ouster of Colmet-Daage continued posttrial.24
And, critically, the court concluded that Cremoux had failed to make a sufficient showing
that the posttrial work had resulted in an increase in value of the property. The court
reasoned that Cremoux’s opinion that the work enhanced the property’s value was
unsupported, and that the opinion of real estate agent Walsh was unsupported and
“vague.”
Cremoux argues on appeal that after the August 2016 trial, she “made substantial
repairs and improvements to the [p]roperty.” She contends further that “Colmet-Daage
presented no contradictory evidence.” In support of her position, she asserts that “[a]
cotenant is entitled to credit for good faith improvements that enhance the value of the
property.” (Italics added, fn. omitted.)
23
Colmet-Daage asserted that Cremoux’s claim that she and her children lived in
Mountain View was a sham. The apartment had one bedroom, and records showed that
there were four persons who claimed to reside there. Colmet-Daage argued that
Cremoux’s lease arrangement was part of the “common practice of parents with school
age children to ‘rent’ a room at an address in a particular school district to allow their
children to attend better schools, in this case Los Altos Middle and High School.”
24
In concluding that Cremoux’s ouster of Colmet-Daage continued to exist, the
court found that “the evidence before the Court . . . [was] more credible than her, so to
speak.”
28
The appellate claim must be rejected for reasons parallel to those discussed above
concerning Cremoux’s claim for reimbursement of pretrial expenditures. The trial court
concluded that the evidence did not establish that the posttrial expenditures by Cremoux
for work done on the property had enhanced its value. That being the case, the court, in
equity, was not required to credit any improvements made by Cremoux to the property,
because they did not enhance its value. (Mercola, supra, 97 Cal.App.2d at p. 143.)25
Further, to the extent Cremoux may suggest that the trial court erred in failing to
credit the expenditures made for the property even if the work had not enhanced its value,
the court properly rejected the suggestion. The trial court found based upon the evidence
before it that Cremoux had neither consulted with, nor given notice to, Colmet-Daage
about the repairs, she had continued to live in or use the property to Colmet-Daage’s
exclusion, and therefore the ouster continued after the August 2016 trial. The court,
therefore, exercising its broad equitable powers (Richmond, supra, 105 Cal.App.3d at p.
766), properly refused reimbursement of expenses made by Cremoux, the sole occupying
cotenant primarily for her benefit, for the maintenance and preservation of the property.
(Gerontopoulos, supra, 20 Cal.App.2d at p. 265; see also 4 Miller & Starr, supra, §
11:19, pp. 11-52 to 11-53.)
Lastly, to the extent that Cremoux contends she was entitled to a credit for the
posttrial expenditures because she established, without contradictory evidence, their
existence and that they enhanced the value of the property, she is mistaken. The trial
court concluded that Cremoux had not shown an entitlement to a $200,000 credit for the
25
Mercola also requires that the expenditures that enhanced the value of the
property to have been made “in good faith” by the cotenant. (Mercola, supra, 97
Cal.App.2d at p. 143.) Although not expressly stated, the trial court’s conclusions in
denying the motion, including the following statement, imply that the court found a lack
of good faith on the part of Cremoux: “And her not consulting with [Colmet-Daage] as
to the repairs . . . [indicates] that she’s still controlling [the property] and not treating him
as an equal in the repairs or anything else or his use of it.”
29
expenditures because she had not met her burden of proving that the work performed by
her enhanced the value of the property. The court did not err, because Cremoux’s
evidence did not “ ‘compel[] a finding in favor of [Cremoux] as a matter of law.’ ”
(Sonic Manufacturing, supra, 196 Cal.App.4th at p. 466.)
F. Ouster
The court concluded after the second phase of trial that Cremoux had excluded her
cotenant, Colmet-Daage, from the property effective September 2013. Under principles
of ouster, the court found that Colmet-Daage was entitled to a credit for one-half of the
fair rental value of the property from September 2013 through August 2016. The court
found the fair rental value to have been $2,200 per month (representing the amount paid
for mortgage and insurance). The court also concluded that Cremoux, as the cotenant
who paid the mortgage and insurance after the parties separated in 2013, was entitled to
reimbursement of one-half of those expenses. Because Colmet-Daage and Cremoux were
entitled to identical credits for rental value and mortgage and insurance payments,
respectively, the court concluded that neither party was entitled to compensation or
credit.
Cremoux does not challenge the trial court’s finding of an ouster or its
methodology of crediting one-half of the fair rental value against Cremoux’s claim for a
credit of one-half of her expenditures for mortgage and insurance. Rather, Cremoux
contends that the court erred in finding that Colmet-Daage was entitled to a rental credit
for the time beginning in September 2013 and ending in August 2016. She argues that
the ouster commenced on October 5, 2014, namely, 60 days after Colmet-Daage gave
written demand for concurrent possession under Civil Code section 843. Cremoux
asserts further that the trial court erred by awarding Colmet-Daage rental credit after
January 2016; because the sewer/waste drainage line from the kitchen was not functional
after the beginning of 2016, the property was uninhabitable and the fair rental value was
therefore zero.
30
“It is a fundamental rule that each tenant in common has a right to occupy the
whole of the property.” (Johns v. Scobie (1939) 12 Cal.2d 618, 623.) No tenant in
common “is entitled to a possession or usage which excludes for any period of time a like
possession or usage by his [or her] co-owners [citations].” (Krum v. Malloy (1943) 22
Cal.2d 132, 135, original italics.) Ouster occurs where there is the wrongful
dispossession or exclusion of one tenant in common from the common property to which
both cotenants are entitled to possession. (Zaslow v. Kroenert (1946) 29 Cal.2d 541,
548.) “The ouster must be proved by acts of an adverse character, such as claiming the
whole for himself [or herself], denying the title of his [or her] companion, or refusing to
permit him [or her] to enter.” (Ibid.) If there is an ouster, the dispossessed co-owner “is
entitled to recover damages resulting from the ouster, which ordinarily amounts to his [or
her] share of the value of the use and occupation of the land from the time of the ouster.
[Citations.]” (Ibid.)
The practical borderline for ouster may sometimes not be clear. (Estate of
Hughes, supra, 5 Cal.App.4th at p. 1612.) The difficulty of proving an ouster led to the
enactment of Civil Code section 843. (Estate of Hughes, supra, at pp. 1612-1613.) Civil
Code section 843 provides an alternative means of determining ouster based upon a
formal notice procedure. The statute, however, does not provide the exclusive means of
proving an ouster. (Civ. Code, § 843, subd. (a): “This section supplements and does not
limit any other means by which an ouster may be established.”)
Here, there was evidence supporting a finding of ouster that occurred long before
the October 5, 2014, the date Cremoux urges here. Cremoux testified she stopped
admitting Colmet-Daage to the property in March or April 2013. She installed a security
system in June-July 2013 to exclude Colmet-Daage. In or about August 2013, Cremoux
served Colmet-Daage with restraining order papers in which she sought an order
restraining Colmet-Daage from going near the property. On her restraining order request,
she listed the property as her residence address. The request for restraining order was
31
denied by the court at a hearing on October 4, 2013. Cremoux testified that she used the
property as the address for her business from 2013 to July 2016. She also testified that
she and her children used the pool at the property as late as the summer of 2016.
The trial court found that an ouster had occurred in September 2013 because at or
about that time, she had sought a restraining order preventing him from entering the
property. In so concluding, the court rejected Cremoux’s argument that she had not
possessed the property after March 2013. Although Cremoux testified that she did not
live at the property from April 2013 forward, the court did not find her testimony
credible, noting that she had listed the property as her residence in the September 2013
request for a restraining order, had used the property for her business on an ongoing
basis, had personal effects at the property, and had regularly used the pool with her
children. There was substantial evidence to support the trial court’s finding that an ouster
occurred in September 2013. And the fact that Colmet-Daage served a statutory demand
for concurrent possession of the property approximately one year later did not preclude
the trial court from concluding that the ouster occurred in September 2013. (See Civ.
Code, § 843, subd. (a) [providing that statute “supplements and does not limit any other
means by which an ouster may be established”].)
Cremoux also challenges the court’s determination that the ouster continued up to
August 2016, claiming that the property was uninhabitable as of January 2016. This
argument is based upon her testimony that there a broken sewer/waste drainage line from
the kitchen. Cremoux argues from this testimony that “[w]ith the [p]roperty in this state
it was uninhabitable and the fair market rent would be zero.” There is no citation to the
record in support of this specific statement. (See City of Lincoln, supra, 102 Cal.App.4th
at p. 1239 [appellate contentions made without supporting citation to the record may be
disregarded].)
The trial court at the second phase of trial found that the period of the ouster
continued to the date of trial. The court reaffirmed that conclusion in its denial of
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Cremoux’s posttrial motion, concluding that based upon Cremoux’s conduct of after
August 2016, the ouster continued up to the time of sale. While the court in its Statement
of Decision did not specifically address Cremoux’s claim that the property was
uninhabitable as of January 2016 (and, therefore, Colmet-Daage was not entitled to a
credit for rent after that time), we will conclude that the court impliedly found that the
property continued to have a fair rental value of $2,200 per month between January and
August of 2016. “The doctrine of implied findings requires the appellate court to infer
the trial court made all factual findings necessary to support the judgment. [Citation.]
The doctrine is a natural and logical corollary to three fundamental principles of appellate
review: (1) a judgment is presumed correct; (2) all intendments and presumptions are
indulged in favor of correctness; and (3) the appellant bears the burden of providing an
adequate record affirmatively proving error. [Citations.]” (Fladeboe v. American Isuzu
Motors Inc. (2007) 150 Cal.App.4th 42, 58.) Where “a party fails to bring omissions or
ambiguities in the statement of decision’s factual findings to the trial court’s attention,
then ‘that party waives the right to claim on appeal that the statement was deficient in
these regards,’ and the appellate court will infer the trial court made implied factual
findings to support the judgment. [Citation.]” (Id. at p. 59.) Cremoux failed to bring to
the trial court’s attention any deficiency in the Statement of Decision concerning the
absence of an express finding concerning her claim that the property was uninhabitable as
of January 2016. The doctrine of implied findings therefore disposes of her appellate
challenge.
The trial court did not abuse its discretion in concluding that there was an ouster
from the property justifying Colmet-Daage’s receipt of a credit for one-half of the fair
rental value of the property from September 2013 through August 2016.
G. Conclusion
We have addressed Cremoux’s four claims of error. First, Cremoux argued that
she should have received an equitable allocation of an ownership interest in the property
33
of greater than 50 percent—claiming an entitlement to at least a 96 percent interest—
based upon her assertion that she alone made the initial contribution to acquire the
property in 2002, and she thereafter had made contributions to the property that were
significantly greater than those made by Colmet-Daage. The trial court did not abuse its
discretion in refusing to order this equitable allocation. It concluded that the parties’
presumed equal ownership of the property, as evidenced by the joint tenancy grant deed,
was not rebutted by evidence presented by Cremoux.
Second, Cremoux contended in the alternative that she should have been
reimbursed for her initial investment and her pre-2010 expenditures related to the
property by receiving a credit of $235,000 (the appreciation in value between 2002 and
2010). The trial court had significant grounds for declining to exercise its equitable
powers to provide such a credit to Cremoux, including the absence of discussion
regarding the parties’ respective ownership interests, Cremoux’s failure to advise
Colmet-Daage that she expected reimbursement for her initial acquisition of the property,
the fact that the debt exceeded the market value of the property as of April 2010, and the
fact that Colmet-Daage paid the property taxes and other expenses for the property both
before and after April 2010.
Third, Cremoux asserted the right to receive significant credits for her
contributions to maintain and improve the property between 2013 and its sale in
April 2017. Her claim for a credit based upon pretrial expenditures totaling $173,439
from 2013 to August 2016 was denied by the trial court because of her failure to meet her
burden of proving that the work related to the expenditures enhanced the value of the
property. Cremoux’s claim for a credit of $200,000—based upon the alleged
appreciation in value of the property resulting from her posttrial expenditures made to
maintain and improve the property—was likewise properly rejected due to a failure of
proof; the trial court found that the work related to those expenditures had not increased
the value of the property.
34
Fourth, Cremoux contended that the court erred by providing Colmet-Daage with
excessive credit for one-half of the fair rental value of the property during ouster. The
trial court did not abuse its discretion in determining that the beginning point of the
ouster was September 2013 (at or about the time Cremoux served Colmet-Daage with a
request for a restraining order identifying the property as her residence), rather than in
October 2014 as claimed by Cremoux. And the court did not err in concluding that the
ouster continued to the date of trial in August 2016, rather than January 2016 when
Cremoux claimed the property became uninhabitable. Both findings were supported by
the record, and we defer to the trial court’s weighing of the evidence and assessment of
the parties’ credibility.
In its consideration of the requests for credits and reimbursements by the parties
associated with this partition action, the trial court’s determinations properly fell within
“the wide range of discretion accorded a court in equity.” (Finney, supra, 111
Cal.App.4th at p. 542.) There was no error.
III. DISPOSITION
The judgment of April 25, 2017, is affirmed. Respondent shall recover his costs
on appeal.
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BAMATTRE-MANOUKIAN, J.
WE CONCUR:
ELIA, ACTING P.J.
GROVER, J.
Colmet-Daage v. Cremoux
H045033