The opinion of the court was delivered by: Robie ,j.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Plaintiff Catherine Guttierrez appeals from the interlocutory judgment entered in this action she brought against her former husband and his parents to partition the parties' interests in a Red Bluff office building. She contends the trial court abused its discretion by: (1) adjudicating reimbursements between spouses after the family law court had expressly retained jurisdiction over that issue in a pending dissolution action; (2) ordering terms on which one party might buy out the interest of another, even though the parties had not agreed to such a sale; (3) offsetting wholly from her individual share (rather than from each party's pro-rata share) amounts she owed for unpaid rent on her office in the building; and (4) awarding her former in-laws attorney fees and costs.
We find no abuse of discretion in the trial court's exercising jurisdiction in the partition, but we agree that the court abused its discretion in ordering that partition could be accomplished by one party buying out another's interest in the amount determined by an appraisal, in offsetting the unpaid rent wholly against plaintiff's interest, and in charging to plaintiff all of the costs associated with the accountant's work. We shall reverse and remand.
Catherine and Tom married in 1993.*fn1 Sometime after 2005, they separated and Tom initiated dissolution proceedings in Tehama County Superior Court (case No. 57975).
While the dissolution action was pending, Catherine filed the instant action against Tom and his parents, the Guttierrezes, seeking partition in kind or by sale as to three properties, and for imposition of a constructive trust as to two others. All parcels are located in Red Bluff. As to the sole property at issue in this appeal -- a commercial building located at 910 Main Street -- Catherine alleged she and Tom collectively own a 61 percent interest in the property, while the Guttierrezes together own the remaining 39 percent.
Tom filed a general denial to the complaint and raised various affirmative defenses. The Guttierrezes did the same.
While the partition action was pending, a trial was conducted in the dissolution action that included the issue of property division. The court's ruling in the dissolution action gave Tom four of the five properties which Catherine sought to divide in the partition action; two were awarded to him as his separate property and two others were confirmed to be his separate property.
As to the sole remaining property Catherine sought to partition -- 910 Main Street -- the trial court in the dissolution action ruled that it "has been stipulated for sale with the proceeds to be distributed equally with the Court reserving jurisdiction over the terms and conditions of the sale and the division of the net proceeds." In addition, the court noted, Catherine "has unilaterally chosen not to pay some or all rents on the All State business location of an undeterminable amount. . . . That issue is properly subject to the Partition Action that is pending between the parties and [Tom]'s parents. [Tom and Catherine] would have the Court essentially negate that debt in its decision. However, the Court does not have jurisdiction over any interest that the other partners would have on said property."
The partition action proceeded to trial on October 20, 2009. Counsel for the Guttierrezes submitted a trial brief*fn2 in which they argued the "910 Main Street property . . . has been ordered listed for sale with the [dissolution] court reserving jurisdiction over the terms and conditions of the sale and the division of the net proceeds; without a finding as to the parties['] respective interest[s] in said property. [¶] [The Guttierrezes] allege that the respective interests of the parties are 39% to [the Guttierrezes] and 30.5% each to Tom and Catherine Guttierrez. [¶] It is [the Guttierrezes] desire to buy out [Catherine]'s interest in said property based on a sale price of $675,000. [¶] Said property has been on the market for a period of time and due to the present economic stagnation is not moving. These defendants contend that the fair market value of said property is $675,000 and that [Catherine]'s net interest in said property at that sales price is $9,223 based on the Balance Sheet attached hereto as Exhibit A."
At trial, Catherine represented herself; the other parties were represented by counsel. Catherine requested a continuance on the ground "910 Main Street . . . is in front of the [dissolution] judge and there is a request about that property going in front of the judge" in that action. Tom and his parents objected, and the court denied her request for a continuance of the partition trial on the ground no proper motion had been made.
At trial, Margaret testified she and Michael collectively contributed $245,178 toward the down payment for the property's purchase; Catherine and Tom together contributed $102,980. There was no "ongoing rental agreement" that Catherine would pay rent on her office at 910 Main Street "because it was a family thing[,]" but at some point Margaret learned Catherine was "going to pay [$]1500." In addition, Margaret testified Catherine left unpaid a $1,500 bill for janitorial services when she ultimately vacated the space.
In January 2009, the 910 Main Street property was listed for sale for $1.2 million. It did not sell, and the listing real estate agent testified at trial the fair market value of the property was then about $586,000.
A bank appraiser testified he had appraised 910 Main Street in August 2009 using two methods: one yielded a value of $573,000, the other yielded a value of $577,000.
An accountant hired by the Guttierrezes testified he had been asked to prepare a schedule of uncollected rent on the suite at 910 Main Street formerly occupied by Catherine. Margaret paid the accountant $8,400 for his work. He summarized the accounting records maintained by Margaret and testified Catherine had failed to pay $39,700 in rent for that office: she paid no rent for a period in February 2006, had paid $1,500 per month between May 2006 and August 2007, and had paid no rent between September 2007 and August 2009, after which she vacated the office.*fn3
In response to this anticipated evidence, Catherine attempted to show the Guttierrezes themselves never paid rent to Tom and Catherine for their use of other property: for example, the Guttierrezes had lived from 2001 to 2006 in what had been Catherine and Tom's marital residence and paid no rent.
In her closing brief, Catherine asked that the court order the 910 Main Street property sold and the net sales proceeds divided "among the owners as evidenced by the Deed to the property."
The Guttierrezes argued in their closing brief that Catherine "owes rent due to the community ownership of the property in the sum of $39,700" and "advanced expenses to the community ownership in the sum of $1550," and that they incurred $8,400 in accountant fees "to fight the allegations of misappropriation of funds and uncollected rents for Catherine." They also sought to recover from Catherine their attorney fees of $11,000 and accountant costs of $8,400 in "defend[ing] a suit filed in bad faith for . . . frivolous reasons," arguing that "[t]his entire litigation was unnecessary" because all issues "could [have been] resolved in the dissolution matter" and Catherine filed the action only "to get information from the Guttierrezes about financial information to help her file her taxes and apply for college loans for her children."
The court adopted nearly in its entirety the findings and order prepared by the Guttierrezes, making the following findings of fact and order as to the 910 Main Street property:
"1. The property is owned jointly by the parties hereto with 61% interest being held by the plaintiff (hereinafter referred to as 'Catherine') and the defendant Thomas Guttierrez (hereinafter referred to as 'Thomas') and 39% being held jointly by Michael and Margaret Guttierrez who will be treated as one entity for the purposes of this judgment (hereinafter referred to as 'The Guttierrezes');
"2. That the fair market value of said property is $586,000[.]
"3. That each party came in with an initial investment to purchase the property, for which they are entitled reimbursement, in the following sums:
"c. The Guttierrezes: $245,178
"4. That Catherine owes rent due to the community ownership of the property in ...