APPEAL from an order of the Superior Court of Los Angeles County, Jan A. Pluim, Judge. Affirmed. (Los Angeles County Super. Ct. No. GC037200)
The opinion of the court was delivered by: Willhite, J.
CERTIFIED FOR PUBLICATION
This is the second appeal in a partition action brought by plaintiffs Shwu-Jen Lin and her husband, Hong-Chuan Lin, against Shwu-Jen Lin's brother, Ing-Jieh Jeng. As did the parties at trial, we refer to plaintiff Shwu-Jen Lin as "Jane," and to defendant Ing-Jieh Jeng as "Jack." In the complaint, Jane and her husband (collectively, "plaintiffs") alleged that they owned an undivided 85 percent interest in a single family residence in Alhambra, and that Jack owned an undivided 15 percent interest. Plaintiffs sought a partition by sale. The five surviving siblings of Jane and Jack filed a complaint in intervention in the partition action, alleging that each of the siblings (including Jane and Jack) owned a one-seventh interest.*fn1 Following a bench trial, the trial court entered an interlocutory judgment decreeing that Jack, Jane, and her husband held title to the property as trustees of a resulting trust, and that Jane, Jack, and the other surviving siblings were the beneficiaries of the resulting trust and owned equitable interests in the property as tenants in common.
In the first appeal, plaintiffs challenged the trial courts findings. We affirmed the judgment in case No. B211023, filed January 22, 2010. After we issued our opinion in that appeal, Jack and the intervenor/siblings (collectively, respondents) filed a motion for their attorney fees, and plaintiffs moved for their attorney fees. The trial court granted respondents' motion, apportioning the fees among the parties in proportion to their interests in the property, and denied plaintiffs' motion. Plaintiffs now appeal from that order, contending that the trial court improperly applied Code of Civil Procedure*fn2 section 874.040 in denying their motion and in granting respondents' motion in full. We affirm the trial court's order granting and denying the attorney fees motions.
Plaintiffs also challenge the trial court's order setting a trial date in a separate (although related) case filed by Jack, seeking contribution from plaintiffs for amounts Jack paid on the mortgage on the property after trial, before the property was sold. As we explain below, that order is not a proper subject of this appeal because it was made in a different case.
To determine whether the trial court abused its discretion when ruling on the attorney fees motions, it is necessary to consider the facts of the underlying litigation. For that, we rely on the statement of facts from our opinion in the first appeal, much of which we repeat here.
We begin with the cast of characters. As noted, Jane and Jack had five surviving siblings: a sister, Shwu-Huey Jeng (who was the sole resident of the property at the time of the litigation), and four brothers, Ing-Song Jeng, Ing-Ming Jeng, Ing-Yann Jeng, and Ing-Pei Jeng. At trial, brother Ing-Song Jeng was referred to as "Raymond," and we will use that designation. As necessary, we will refer to the other surviving brothers and the sister individually by their first hyphenated names. One other brother, Ing-Lei Jeng, was deceased at the time of trial. In the record, he is referred to as "Larry," and we will use that designation as well. The parents are also deceased, and their names do not appear in the record. We will refer to them as "the parents."
A bench trial was conducted on Jane's complaint and the siblings' complaint in intervention. Jane, her husband (Hong-Chuan Lin), Jack, Raymond, Shwu-Huey, and certified public accountant Phillip Thong testified at that trial.
II. The Purchase of the Rosemead House
After immigrating to the United States from Taiwan, the parents decided to purchase a house on Brighton Street in Rosemead, California. This house was the predecessor property to the Alhambra property that was the subject of the partition action. Jane, who was a real estate agent, helped in the purchase of the Rosemead house, which was completed in 1981. The persons who lived in the house were the parents, Jack, Larry, and Shwu-Huey.
According to Jane, the parents did not have credit, and Jack had just arrived from Taiwan. Thus, Jane obtained the loan for the purchase of the Rosemead house. However, because the mother insisted that Jack also be named on the loan, both Jack and Jane signed the loan documents. Also at the parents' request, Jack and Jane took title to the house as tenants in common, each with a 50 percent interest, even though Jane paid no money for the purchase, and never made a loan payment. Soon after the purchase, Jane quitclaimed her interest in the house to Jack, because she did not own the house and had simply arranged the loan.
According to Jack, he made all the mortgage, tax, and insurance payments on the Rosemead house. In late 1982, he married and moved out, but continued to make all the payments.
III. Sale of the Rosemead House and Purchase of the Alhambra House
The parents decided to sell the Rosemead house, and found another house that they wished to buy on Geranio Drive in Alhambra. This is the property that was the subject of the partition action. At the parents' request, Jane arranged the sale of the Rosemead house and the purchase of the Alhambra house, which were completed in January 1984.
The purchase price for the Alhambra house was approximately $113,000. The down payment was $51,209, comprised of contributions from certain family members, as follows: the mother contributed $30,023 (approximately 59 percent); Jack contributed $16,981 (approximately 33 percent); Shwu-Huey contributed $2,138 (approximately 4 percent); and Jane contributed $2,067 (approximately 4 percent).
The purchase loan was approximately $62,000, at a variable rate of interest. The loan was signed by Jane and her husband, and by Jack and his then-wife.
The grant deed for the Alhambra property listed Jane and her husband as owners in joint tenancy of an undivided 85 percent interest, and Jack and his then-wife as owners in joint tenancy of a 15 percent interest. Jack later divorced, and his wife quitclaimed to him her interest in the property.
The family members who lived in the house were the parents, Larry (the now-deceased brother), and Shwu-Huey (the sister who was the sole resident of the house at the time the partition action was litigated).
In February 1998, the property was refinanced through a loan obtained by Jane and Jack.*fn3 Approximately $24,000 was paid to retire the original loan. Jane paid Jack around $12,000 (which was 15 percent of the total loan,) and paid Shwu-Huey $16,795 as repayment for a loan Jane had obtained from the mother.
After the refinance, the monthly mortgage payment was $800, which Jane paid to the lender. Jack would write Jane a check each month for $120, 15 percent of the mortgage payment. In addition, as explained below, Jane received "rent" from Shwu-Huey.
IV. "Rent" and Other Payments
According to Jane's trial testimony, beginning in January 1984, the parents, Larry, and Shwu-Huey were to pay rent to Jane for living in the Alhambra house, with the checks written to Jane by Shwu-Huey. Before 1985, there was no formal lease, and Shwu-Huey paid rent in amounts as instructed by Jane. Jane calculated the rent by setting it at around $200 less than the monthly mortgage payment. For the first six months, the monthly rent was $532.68. Thereafter, the rent increased because the variable interest rate on the original purchase money loan increased.
In 1985, Jane (as landlord with husband Hong-Chuan Lin) prepared a written lease, later signed by the parents, Larry, and Shwu-Huey, which called for monthly rent of $579.35 beginning in January 1985. This $579.35 payment continued until January or February 1998, when the property was refinanced, after which Jane reduced the rent to $200 a month. Shwu-Huey paid at that rate until March 2006, and afterward stopped paying, although she continued to live in the house. Shortly before trial, Jane had served her with a 60-day notice to quit.
Jane testified that although she was listed on the grant deed as an 85 percent owner, she was responsible for only one-third of the property tax. The arrangement was that Shwu-Huey would write a check for the property tax, and then Jane would pay Shwu-Huey back. Shwu-Huey would then take a deduction from the rent.
Jane did not consider the payments made by Shwu-Huey to be payments toward the mortgage; she considered them to be rent paid to her. Jane alone took the mortgage interest deduction for tax purposes, and never told any of her brothers that she was collecting rent. Jane did not issue receipts for the payments made to her, and did not keep track of the amounts she was paid by Shwu-Huey.
Shwu-Huey testified that Jane told her that the amounts she was paying were for rent. However, Shwu-Huey never told her parents the payments were rent, because they did not understand United States law.
According to Shwu-Huey, from 1984 through 1998, she paid Jane $579.35 a month (Jane denied that the $579.35 rate began in 1984). Beginning in February 1998, Shwu-Huey paid Jane rent of $200 a ...