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Socorro Abarca v. Harold Joe Ferber


January 20, 2011


Super. Ct. No. CV026399

The opinion of the court was delivered by: Butz ,j.

Abarca v. Ferber CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 this action, the trial court split equally between two former longtime cohabitants the sale proceeds from a house they had purchased together. One of the cohabitants, appellant Harold Joe Ferber (Harold), claims he was entitled to more.*fn1 We shall affirm the judgment.


Harold and his girlfriend, Socorro Abarca (Socorro), along with Socorro's two young daughters from another relationship, began living together around early 1989, and they continued to do so until the Fall of 2004.

In July 2000, after living in various rental properties, Harold and Socorro bought a house in Lathrop for $187,000. They split the $8,000 down payment equally, and took title jointly as tenants in common. They refinanced the property in 2003, taking out $40,000 in cash.

Harold and Socorro's relationship ended in the Fall of 2004 when he was excluded from the residence pursuant to a domestic violence restraining order.

Based on her status as a tenant in common, Socorro sued Harold in 2005, seeking an equal partition of the residential property by sale. Harold responded with a cross-complaint for partition, accounting, waste, contribution, and chattel conversion/trespass to chattels.

In a bench trial, Socorro testified that she and Harold did not have a formal or exact agreement about how they would share housing and living expenses after they purchased their house. The two never specified a "certain amount" along these lines. According to Socorro, "there was no one way"; she would pay Harold more than what was needed for one month, and less for another, depending on financial circumstances. Socorro acknowledged being responsible for paying her personal expenses and those of her daughters. She submitted checks showing that she had paid nearly $100,000 in housing and living expenses after she and Harold bought the residence.

Harold, at trial, presented a spreadsheet accounting based on his and Socorro's bank records from their Wells Fargo checking and credit card accounts, which he claimed showed that Socorro owed him about $50,000 for housing and living expenses. However, these accounts were "joint" between Harold and Socorro, and were used for paying car, housing, and other living expenses. As the trial court found, there was evidence that Harold and Socorro pooled their resources and commingled their assets and debts as if they were married; their income was deposited into the Wells Fargo joint checking account, and debts, liabilities, purchases, and expenses were paid from this account without being apportioned between them.

The Lathrop residence had been sold in early 2006 for $370,000. The listing realtor opined at trial that the property's diminished condition reduced the purchase price by $30,000.

The trial court divided the residential sale proceeds equally between Socorro and Harold, and denied Harold any relief on his cross-complaint.


I. Substantial Evidence of Sharing Expenses or Apportioning Them Harold contends the evidence is insufficient to support the trial court's finding that, after Harold and Socorro purchased their house, they pooled their income and debts without an apportionment agreement, in a manner similar to how a typical married couple would live.

Harold has forfeited this contention because he has cited only the evidence favorable to him, which he claims is a portion of Socorro's testimony. (Hauselt v. County of Butte (2009) 172 Cal.App.4th 550, 563 (Hauselt) [substantial evidence contention is forfeited because proponent "cited only the evidence favorable to him"].) Harold characterizes this testimony as showing a tacit oral apportionment agreement for each party to pay one-half of all housing-related and mutual expenses, and for Socorro to pay the entirety of her and her daughters' personal expenses. Harold, though, has neglected to mention the evidence of the joint bank accounts and the commingling of income and expenses; furthermore, Harold favorably spins Socorro's testimony regarding the purported agreement. So, Harold has not only cited just the favorable evidence, he has put a favorable spin on that evidence. That only compounds his forfeiture.

II. Equitable Division of Residential Sale Proceeds

In a series of arguments, Harold contends the trial court's equitable division of the residential sale proceeds was legally erroneous because partition law (partition by sale, not kind) applied--rather than family law, domestic partnership law, or Marvin agreement law (Marvin v. Marvin (1976) 18 Cal.3d 660), in which equitable remedies are available.

The trial court properly followed the law. As the court set forth in its statement of decision: "[Socorro] and [Harold] both seek partition. The court is not treating this case as one involving division of community property or other assets between married persons, domestic partners, or persons in a Marvin situation. Rather, as is appropriate in a partition action, the respective interests of each party (tenant [in common]) in the proceeds of the [residence] have been put in issue, tried, and determined. (Code [Civ. Proc.], § 872.610.)[*fn2 ] The fact that the parties commingled assets and lived 'as if married' is relevant only to the extent that it illuminates the nature of the parties' financial arrangements. The court finds that [Socorro] and [Harold] were unmarried persons holding title as tenants in common and, after consideration of all the evidence presented, that each tenant had a 50% interest in the [residence]. There were no 'capital accounts.' The 'accounting' presented by [Harold] was an invention created after-the-fact." (See 12 Witkin, Summary of Cal. Law (10th ed. 2005) § 74, subd. (1), pp. 120-121, on "Determination of Manner of Partition" ["Partition is by physical division unless the parties agree on a sale or the court determines that partition by sale would be 'more equitable.' ([Code Civ. Proc., §§] 872.810, 872.820.)"]; see also Code Civ. Proc., § 873.820 ("Order of Application of [Partition Sale] Proceeds"), upon which Harold relies, but which states as pertinent: "The proceeds of sale for any property sold shall be applied in the following order: [¶] . . . [¶] (d) Distribution of the residue among the parties in proportion to their shares as determined by the court.")

III. Ouster and Actions for Contribution, Waste, and Conversion

Finally, Harold contends that Socorro "ousted" him from the residence, and this led to his actions for contribution (rents), waste (diminished sale proceeds because he would have taken care of the property), and conversion of chattels (some of his work tools were belatedly returned).

Socorro did not "oust" Harold from the residence. An "ouster," in the law of tenancy of common, is the wrongful exclusion from the property by a cotenant. (Zaslow v. Kroenert (1946) 29 Cal.2d 541, 548; Estate of Hughes (1992) 5 Cal.App.4th 1607, 1612.) Socorro lawfully excluded Harold from the residence after obtaining a domestic violence restraining order.*fn3 With the ouster of "ouster," so goes the underpinning for these three causes of action. Furthermore, Harold, once again, has cited only the evidence favorable to him on these actions, thereby forfeiting any argument that the trial court's adverse findings on these claims were not supported by the evidence. (Hauselt, supra, 172 Cal.App.4th at p. 563.)


The judgment is affirmed. Socorro is awarded her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

We concur:

BLEASE, Acting P.J.


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