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Robert R. Grossman et al v. Alan A. King et al

February 5, 2013


(Super. Ct. No. CV32486)

The opinion of the court was delivered by: Nicholson , J.

Grossman v. King 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendants appeal from a final judgment partitioning real property. They contend substantial evidence does not support various valuation determinations made by the trial court in determining the amount of equalization payment owed. We disagree and affirm the judgment in its entirety.


Plaintiffs Robert and Eilene Grossman and defendants Alan and Lorraine King purchased approximately 56.44 acres of real property with the plan of subdividing it. The property boundary is shaped roughly like a reverse image of the state of Nevada, with the parcel's southern boundary running from the southwest to the northeast. The property is bordered on the south by Paloma Road.

The parties eventually obtained a tentative map for an 11-parcel subdivision, but before they obtained a final map and sold the parcels, a dispute arose between them, and the Grossmans filed a complaint for partition of the property by sale. The tentative map has since expired.

In an interlocutory judgment, the trial court determined the partition would proceed as a partition by division, otherwise known as a partition in kind. The court ordered the parcel divided vertically in half from north to south. It awarded the west portion to the Kings and the east portion to the Grossmans.

As part of its interlocutory judgment, the court appointed a referee to determine what compensation if any was required to be made by either party to the other in order to correct for any inequality in the partition, a payment known as owelty. (See Code Civ. Proc., §§ 873.250, subd. (a); 873.280, subd. (b)(2).)*fn1

The referee's decision took account of the characteristics and features of the divided parcels. The west portion awarded to the Kings (the King property) is the larger parcel. It totals approximately 30.57 acres. It has no improvements or utilities.

The east portion awarded to the Grossmans (the Grossman property) totals roughly 25.87 acres. It adjoins to its east other property owned by the Grossmans.

The Grossman property includes features and improvements which the King property does not. The Grossman property includes a pond on its northeast corner. It also includes a well that was drilled before the parties purchased the property. It produces about three gallons of water per minute. However, the water tested positive for coliform bacteria and is not potable.

The Grossman property also includes a small cabin located on the property's southeast corner. The Kings believed the cabin was built in 1897. When the parties purchased the 56-acre parcel, the seller said the cabin was uninhabitable. It never had indoor plumbing or a driveway. However, it had been wired for electricity. A driveway now connects the cabin to Paloma Road (an encroachment).

At the time of trial, the Kings had resided in the cabin and a travel trailer they located next to the cabin for 11 years. They rebuilt the cabin's roof and repaired its floors and foundation. They added a shop area. They also added an aluminum carport to house the trailer and a boat. They stated they spent between $30,000 and $40,000 in improvements to the cabin.

To obtain water, the Kings tapped into a neighbor's line that ran from an existing meter in the public water system. They ran a three-quarter-inch line from the neighbor's line to their trailer. They did not get a permit from the water purveyor, Calaveras Public Utility District (CPUD), to run this line, but they claimed they had its permission.

With no indoor plumbing to use, the Kings installed a septic holding tank and used the facilities in their trailer. The tank holds 150 gallons and is pumped by an outside service when needed. The tank is closed and has no leach lines.

Considering all of these property features and two appraisals, the referee concluded the Kings owed the Grossmans $20,000 or two acres as owelty. He determined the King property, the larger parcel, was worth $325,000, and the Grossman property, including its improvements, was worth $285,000.

The Kings filed a motion to modify the referee's report and the interlocutory judgment. They contended the referee had not correctly accounted for the cost of improvements they had made on the Grossman property, nor had he accounted for the costs they would incur to improve their property to make it habitable.

Relying on the evidence presented in the referee's report, the testimony at trial, and a personal inspection of the property, the trial court denied the motion and entered final judgment. The court confirmed the division of the property as was set forth in the interlocutory judgment, and it ordered the Kings to pay the Grossmans $20,000 as owelty. It valued the King property at $325,000, and the Grossman property without improvements at $270,000, leaving the Kings with an owelty payment of $27,500. However, it offset that amount by $7,500 as the value of the cabin and other improvements on the Grossman property, resulting in an owelty of $20,000. The court determined the pond, the septic tank, and the well on the Grossman property had no value.

The court also denied the Kings' requests for reimbursement for the loss of the cabin and for the costs to be incurred on their property for constructing a septic system, constructing an encroachment, connecting with the public water system, and running electricity and cable lines to their property.

The Kings appeal. They contend the trial court erred in its valuations of the improvements and resources on the Grossman property, resulting in an unjustified owelty payment. Specifically, they claim the court erred by:

(1) not reimbursing them for the septic tank;

(2) not assigning a value to the encroachment ...

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