Mohammed v. Mohammed CA2/1 ( 2014 )

Filed 5/14/14 Mohammed v. Mohammed CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION ONE
HUSNA MOHAMMED, B244755
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC462131)
v.
MOHSIN MOHAMMED et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los Angeles County. Mel
Red Recana, Judge. Vacated with directions.
Pythis William-Anthony for Defendants and Appellants.
Law Offices of Dilip Vithlani and Dilip Vithlani for Plaintiff and Respondent.
__________
Husna Mohammed filed this action for partition and accounting against her
brother, Mohsin Mohammed, and his wife, Dilruba Mohammed.1 Husna dismissed her
accounting claim, and the superior court conducted a bench trial and resolved the
partition action in her favor. Mohsin and Dilruba appeal. Although we conclude that all
of Mohsin and Dilruba’s arguments on appeal lack merit, we have identified an error in
the judgment that requires us to vacate and remand for further proceedings. The
judgment appears to adjudicate the (putative) interest of a nonparty, namely, Husna and
Mohsin’s father. That is impermissible. We leave it up to the parties and the superior
court on remand to decide whether to amend the judgment in order to remove the
appearance that it adjudicates the interest of a nonparty, or to join the father as a
defendant and allow him to litigate his (putative) interest.
BACKGROUND
Husna filed suit against Mohsin and Dilruba, alleging claims for partition
and accounting with respect to a piece of real property “commonly known as
4192 West Broadway, Hawthorne, CA 90250” (the Property). Husna alleged that she
and her brother, Mohsin, owned the Property as tenants in common, with Husna owning
a 75 percent interest and Mohsin owning a 25 percent interest. She further alleged
that Dilruba is Mohsin’s wife.
Husna alleged that “[t]he Property is a multi-unit dwelling consisting of Units A
through E,” and that “Unit A is a self-contained home that is separated from the main
building . . . and is the largest of all the units in the building.” She alleged that Mohsin
leased Unit A to Exodus Recovery, which subleased Unit A to one of its own subsidiaries
to be used as housing for “mentally challenged individuals.” According to the complaint,
Mohsin “collects in excess of $2,000.00 in rent per month from Exodus Recovery.”
Mohsin and Dilruba answered and asserted several affirmative defenses. The
second putative affirmative defense merely described Mohsin and Dilruba’s version of
1
Because the parties share a last name, we will refer to them by their first names in
order to avoid confusion. No disrespect is intended.
2
the relevant facts, and it stated that Husna and Mohsin’s father, Ahsan Mohammed,2 has
a life estate in Unit A, which “has been rented out to Exodus Foundation for the monthly
sum of $2,000.00.” Attached to the answer was a document signed by Mohsin under
penalty of perjury, in which he stated that he owned a 25 percent interest in “the property
located at 4192 W. Broadway, Hawthorne, California, 90250” and granted to Ahsan “a
life estate in the property,” which “will allow [Ahsan] to have exclusive use of said
property in any manner he sees fit.”
Husna dismissed her accounting claim before trial, and the partition claim was
tried to the court over two days. No court reporter was present, so we have no record of
the testimony or other oral proceedings at trial. (The court directed the parties to submit
written summaries of the trial testimony; Mohsin and Dilruba apparently did not do so,
but Husna did, and her summary is included in the record on appeal.) Ahsan has never
been joined as a defendant in this action, but he testified at trial and was represented by
counsel for that purpose.
The court issued a tentative decision in favor of Husna and directed her to prepare
a proposed statement of decision. Mohsin and Dilruba filed written objections to the
proposed statement of decision, Husna filed a written response to the objections, and
Mohsin and Dilruba filed a reply. Mohsin and Dilruba’s opposition included a
declaration by Ahsan, in which he asserted that he owns a life estate in Unit A of the
Property and that he is “an indispensable party in this matter.” The court overruled the
objections and adopted the proposed statement of decision.
In its statement of decision, the court found that Husna and Mohsin own the
Property as tenants in common, with Husna owning a 75 percent interest and Mohsin
owning 25 percent. The court also found that “over the last four years,” Ahsan
“has retained all the rents from the tenant in Unit A (Exodus), and such rents have
not been shared with [Husna].” On the issue of partition, the court determined that
“uncontroverted evidence at trial supports the remedy of partition by sale,” and the court
2
Because Ahsan Mohammed shares a last name with plaintiff and defendants, we
will refer to him by his first name in order to avoid confusion. No disrespect is intended.
3
cited numerous grounds for its conclusion that “a physical partition is inequitable,
prejudicial, and unlikely to be approved by the City.” The court found that the Property
is worth $500,000 and directed Mohsin to sell his 25 percent interest in the Property to
Husna based on that value, after crediting Husna for Mohsin’s share of various tax and
insurance payments Husna had made for the benefit of the Property.
The court entered judgment accordingly. The judgment orders defendants to
sell their 25 percent interest in the Property to Husna “for $125,000, being 25% of the
appraised value of $500,000.00.” The judgment further provides that “upon tender of
payment by Plaintiff to Defendants the sum of $118,538.50 (calculated as follows:
$125,000.00 less $1,900.00 as discovery sanction, less $4,471.50 as contributions by
Defendants to Plaintiff towards property taxes and insurance) less any costs and fees the
Court may approve upon filing of a noticed motion by Plaintiff, Defendants are to
execute a Grant Deed in favor of Plaintiff transferring their 25% interest to the Plaintiff.”
In addition, the judgment states the following: “The Court further Orders that upon
transfer of title, all rent receipts from the tenant in Unit A (Exodus Recovery) shall
belong to the Plaintiff and Defendants are ORDERED to provide Plaintiff with all
relevant information about the tenant which is necessary to allow Plaintiff [to] assume the
role of landlord in place of Defendants.”
Husna moved for apportionment of attorney fees and costs according to the
parties’ ownership interests in the Property, seeking a total award of $11,121.40
(25 percent of the $44,485.60 that she had expended on fees and costs). The court
granted the motion over Mohsin and Dilruba’s opposition and entered an amended
judgment reflecting the fees and costs award. Mohsin and Dilruba timely appealed.
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STANDARD OF REVIEW
We review the trial court’s conclusions of law de novo, and we review its findings
of fact under the substantial evidence standard. (Crocker National Bank v. City and
County of San Francisco (1989) 49 Cal.3d 881, 888.) In order to prevail, an appellant
must demonstrate both that the trial court’s decision was erroneous (under the applicable
standard of review) and that the error was prejudicial. (State Farm Fire & Casualty Co.
v. Pietak (2001) 90 Cal.App.4th 600, 610; In re Marriage of McLaughlin (2000)
82 Cal.App.4th 327, 337.)
DISCUSSION
Defendants raise numerous arguments on appeal. We conclude that each of them
lacks merit.
First, defendants argue that Husna has no right to partition of the entire Property
because she owns only Units B through E, while Mohsin owns Unit A. The record
reflects that defendants advocated the same position in the trial court—they contended
that Mohsin owns Unit A (rather than a 25 percent interest in the entire Property)
and Husna owns Units B through E (rather than a 75 percent interest in the entire
Property). The trial court resolved that factual dispute in favor of Husna, expressly
finding that Husna owns a 75 percent interest in the Property, Mohsin owns a 25 percent
interest, and they are tenants in common. The court’s factual finding is supported by
substantial evidence, namely, the title documents (and also the judgment in Husna and
Mohsin’s parents’ marital dissolution action) that were introduced at trial and included in
the record on appeal. We accordingly must affirm the trial court’s finding.3
Second, defendants argue that Ahsan, “his Life Estate,” and “his tenant Exodus
Recovery” are not bound by the judgment, because they were not joined as defendants.
The argument that they are not bound by the judgment is not an argument that the trial
3
In connection with this argument, defendants appear to argue that the trial court’s
denial of Husna’s motion for summary adjudication somehow made it improper for the
court to find in Husna’s favor on her partition claim after trial. We disagree. The trial
court denied the summary adjudication motion because there were disputed issues of
material fact. After trial, the court resolved those disputes in favor of Husna.
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court erred, let alone prejudicially erred, so it is of no consequence on appeal. Insofar as
defendants are arguing that the trial court erred by failing to join indispensable parties,
we deem the issue forfeited because it was not timely raised below. Failure to join an
indispensable party is a mere pleading defect that is forfeited if not raised by demurrer or
answer or at trial. (See McKeon v. Hastings College (1986) 185 Cal.App.3d 877, 889.)
A contrary rule would encourage gamesmanship and waste judicial resources—a
defendant who knew of an absent but indispensable party would be free to remain silent
about the issue and litigate the matter anyway, knowing that if the plaintiff prevailed, the
defendant could then raise the issue of the indispensable party and thereby obtain a
retrial. We are aware of no authority allowing for such a result, and defendants cite none.
Defendants never contended in the trial court that Ahsan (or “his Life Estate” or “his
tenant”) was an indispensable party, and they never sought to have him joined. (In his
declaration in response to the proposed statement of decision, Ahsan contended that he
was an indispensable party, but he never sought to intervene.) We conclude that
defendants have forfeited the issue of failure to join indispensable parties.
Third, defendants argue that Dilruba was improperly joined as a defendant because
she neither owns nor claims any interest in the Property. Defendants do not contend that
they ever raised this issue in the trial court, and we have found nothing in the record on
appeal indicating that they did. We therefore deem the issue forfeited. (See, e.g., Brown
v. Boren (1999) 74 Cal.App.4th 1303, 1316-1317.) In addition, “any reference to a
matter in the record” must be supported by a proper citation to the record (Cal. Rules of
Court, rule 8.204(a)(1)(C)), and we “need not consider” such matters if no such citation is
given (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239 & fn. 16).
Defendants cite nothing in the record in support of their contention that Dilruba neither
owns nor claims any interest in the Property, so for that additional reason we need not
consider the matter.
Fourth, defendants argue that the trial court prejudicially abused its discretion by
ordering partition by sale (i.e., sale of Mohsin’s 25 percent interest in the Property to
Husna) instead of partition in kind (i.e., Unit A to Mohsin and Units B through E to
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Husna). The argument lacks merit. The trial court made extensive factual findings in
support of its determination that partition in kind would be “inequitable, prejudicial, and
unlikely to be approved by the City.” Defendants do not argue that those findings were
not supported by substantial evidence. Moreover, in the absence of a reporter’s transcript
of the trial, such an argument is foreclosed. (See, e.g., Nielsen v. Gibson (2009)
178 Cal.App.4th 318, 324.) Nor do defendants argue that, given the court’s factual
findings, its determination that partition in kind would be “inequitable, prejudicial, and
unlikely to be approved by the City” constituted an abuse of discretion. Accordingly, we
must reject defendants’ contention that ordering partition by sale constituted an abuse of
discretion.
Fifth, defendants argue that the trial court prejudicially abused its discretion by
ordering only the sale of Unit A rather than the sale of the entire Property. The argument
fails because, among other reasons, it rests upon the incorrect assumption that the trial
court ordered only the sale of Unit A. The court found as a matter of fact (supported by
substantial evidence) that, as tenants in common, Mohsin owned a 25 percent interest in
the Property and Husna owned a 75 percent interest, and the court ordered Mohsin to sell
his interest to Husna. The court did not find that anyone owned only certain units and did
not order the sale of only certain units.
Sixth, defendants argue on the basis of Butte Creek Island Ranch v. Crim (1982)
136 Cal.App.3d 360 (Butte Creek) that if partition by sale is ordered, the entire Property
must be sold. Defendants provide no page citation to Butte Creek in support of the
argument, and we have found no support for it in Butte Creek. The applicable statutes
grant the court ample discretion to order the type of sale that was ordered here. (See
Code Civ. Proc., §§ 872.810-872.830.)
Seventh, defendants rely on Butte Creek for the proposition that Husna failed to
introduce sufficient evidence to justify partition by sale rather than partition in kind.
We disagree. Under Butte Creek, partition in kind is not appropriate if the property
cannot be divided in proportion to the ownership interests. (Butte Creek Island Ranch v.
Crim, supra, 136 Cal.App.3d at p. 366.) Here, the trial court expressly found that the
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Property “cannot be physically divided in proportion to the ownership interests without
prejudice to both sides because Unit A is only 19% (1077/5530) of the total property
square footage.” Defendants do not (and, without a reporter’s transcript of the trial,
cannot) argue that the court’s factual findings on that issue are unsupported by substantial
evidence.
Eighth, defendants argue that the trial court prejudicially erred by determining that
the value of the Property is $500,000. Again, because there is no reporter’s transcript
of the trial, defendants cannot raise a substantial evidence challenge to the trial court’s
factual findings concerning the value of the Property. In any event, defendants concede
that a witness called by Husna testified that the Property was worth $500,000, which
constitutes substantial evidence supporting the court’s factual finding, and defendants do
not argue that the court abused its discretion by admitting that testimony. Defendants
also argue that the court erred by ordering the sale of Mohsin’s interest to Husna on the
basis of the $500,000 valuation rather than ordering the sale of the entire Property on the
open market. Defendants cite no legal authority for that argument, so we need not
consider it. (See, e.g., Dabney v. Dabney (2002) 104 Cal.App.4th 379, 384 [“We need
not consider an argument for which no authority is furnished”].)
Ninth, defendants argue that because Mohsin purportedly granted his father a life
estate in Unit A of the Property, Mohsin holds only a remainder interest and consequently
should not have been held liable for a share of the taxes and insurance on the Property.
This argument too depends upon the erroneous premise that Mohsin’s sole interest in the
Property was that he owned Unit A. Again, the trial court found as a matter of fact,
supported by substantial evidence, that Mohsin owned a 25 percent interest in the entire
Property. Mohsin does not contend that he granted Ahsan a life estate in the entire
Property, so Mohsin’s argument that he is not liable for a share of the taxes and insurance
on the Property lacks merit. In addition, the authorities cited by defendants do not
support the proposition that if Mohsin held only a remainder interest he would not be
liable for taxes and insurance.
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Tenth, defendants argue that the apportionment of attorney fees was improper
because the judgment is interlocutory, the fees were not incurred for the common benefit
of the parties, and Mohsin holds only a remainder interest. The judgment is not
interlocutory (if it were, we would have to dismiss defendants’ appeal, because an
interlocutory judgment is not appealable), and defendants present no intelligible
argument to the contrary. Defendants’ only argument concerning common benefit is
that the trial court valued the Property at $500,000, which defendants believe is too low.
As we have already noted, the trial court’s valuation of the Property is supported by
substantial evidence, and it is in any event irrelevant to the issue of common benefit.
The trial court found as a matter of fact, supported by substantial evidence, that the
parties have been at odds over the use of the Property (“there is no serious dispute that
parties are not getting along”). The resolution of that conflict concerning the Property by
means of a partition action was therefore for the common benefit of the parties. And the
argument concerning Mohsin’s putative remainder interest fails for the reason already
given—Mohsin held a 25 percent interest in the entire Property, so his contention that his
only interest in the Property was a remainder interest in Unit A is not correct.
Eleventh, defendants argue that because Husna dismissed her accounting claim,
she should not receive credit, in her purchase of Mohsin’s interest in the Property
pursuant to the judgment, for having paid Mohsin’s share of taxes and insurance in
previous years. Defendants cite no legal authority for this argument (which appears on
its face to be meritless), so we need not consider it.
Twelfth and finally, defendants argue that the trial court prejudicially erred by
failing to state on the record its reasons for overruling defendants’ objections to the
proposed statement of decision. Defendants cite no legal authority for this argument,
so we need not consider it. In addition, defendants do not specifically discuss or even
mention any of their 39 objections, so they have not shown that any one of those
objections was so meritorious that overruling it constituted an abuse of discretion.
They have accordingly not shown that the trial court’s failure to specify its reasons was
prejudicial, even if that failure was erroneous.
9
Despite defendants’ failure to advance any meritorious arguments for reversal, we
reluctantly conclude that we cannot simply affirm the judgment in its entirety. The trial
court found that Ahsan has been receiving all of the rent money generated by Unit A for
four years, and the record on appeal reflects that Ahsan claims to hold a life estate in
Unit A. The judgment provides that henceforth the rent shall no longer be paid to Ahsan
but rather “shall belong to the Plaintiff.” But Ahsan is not and has never been a party to
this litigation. The judgment thus appears to adjudicate a nonparty’s (putative) interest in
the Property—Ahsan, who is not a party, has been receiving rent on Unit A and claims to
hold a life estate in that unit, but the judgment provides that the rent money will no longer
be paid to him. That is improper. (See, e.g., Ikerd v. Warren T. Merrill & Sons (1992)
9 Cal.App.4th 1833, 1842-1843.)
Having identified this error, however, we do not wish to tie the hands of the trial
court or the parties in determining the most appropriate remedy. On the one hand, they
may wish to amend the judgment in order to remove any appearance that it adjudicates
the (putative) interest of a nonparty. On the other hand, they may wish to join Ahsan as a
defendant so that his (putative) interest in the Property may be litigated and determined.4
We accordingly vacate the judgment and remand for further proceedings consistent with
this opinion, leaving it to the trial court and the parties to determine which course they
wish to pursue.
We emphasize that there are no previously tried issues for which a retrial is either
necessary or permitted. In particular, Mohsin’s interest in the Property has been fully
4
We note that insofar as the only interest Ahsan claims is the life estate for the
exclusive use of Unit A that Mohsin purportedly granted, we are skeptical that any such
interest exists. The trial court found (and we, by this opinion, affirm) that Mohsin and
Husna owned the Property as tenants in common, with Mohsin owning a 25 percent
interest in the entire Property and Husna owning a 75 percent interest in the entire
Property. “Each tenant in common equally is entitled to share in the possession of the
entire property and neither may exclude the other from any part of it.” (Zaslow v.
Kroenert (1946) 29 Cal.2d 541, 548.) Thus, to the extent that Mohsin purported to grant
Ahsan the right to the exclusive use of some or all of the Property, it appears that Mohsin
lacked the power to do so, rendering the grant void.
10
litigated and determined, and, by this opinion, that determination is being affirmed on
appeal. On remand, either Ahsan will be joined as a defendant and his (putative) interest
in the Property (which was not previously litigated) will be resolved, or the judgment will
be amended to remove any appearance that it adjudicates his (putative) interest.
DISPOSITION
The judgment is vacated and the case remanded for further proceedings consistent
with this opinion. Respondent shall recover her costs of appeal.
NOT TO BE PUBLISHED.
ROTHSCHILD, Acting P. J.
We concur:
CHANEY, J.
MILLER, J.*
*
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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