Gayle S. Cummings v. Jennifer Dessel

Defendants Jennifer Dessel and her daughter, Emily Seal, were half-owners of an

investment property; plaintiff Gayle S. Cummings owned the other half. After disputes

arose, Cummings sued seeking partition of the property. Following a bench trial, and

over the objection of Dessel and Seal, the court ordered partition of the property by the

appraisal method—that is, each half-owner could bid to purchase the other half-owner‟s

interest, with the minimum bid set by appraisal. Dessel and Seal appealed.

In the published portion of the opinion, we conclude the trial court erred when it

ordered partition of the property by appraisal because the parties had not agreed to that

method, as is required by the statute. In the unpublished portion of the opinion, we

conclude defendants have not shown the error was prejudicial. We also reject

defendants‟ contention that the court abused its discretion in denying their request to

continue the trial. Accordingly, we shall affirm the judgment.



*

Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is

certified for publication with the exception of sections II(A)2.(b), II(B), and II(C).

2

I. BACKGROUND

A. The Property

In 2009, Dessel, Seal, and Cummings agreed to together purchase a parcel of land

containing a relatively small and dilapidated residence with a carport. The parcel was

located at 3950 Fieldbrook Road, in Fieldbrook, California (the property), and the

parties‟ plan was to remodel the residence, converting it to a vacation rental. The parties

agreed to pay the seller $200,000. Cummings made a down payment of $80,000, and the

seller agreed to carry a note for the balance of $120,000, to be due in full in June 2015.

The parties committed to make monthly interest-only payments to the seller of about

$700, and to pay all insurance and property taxes.

Dessel, Seal, and Cummings signed a promissory note (the agreement), providing

that Dessel and Seal would match Cummings‟s initial $80,000 investment by making the

monthly payments on the seller‟s note, paying all insurance and property taxes, and

contributing labor and materials to renovate the property. Once Dessel and Seal had

contributed $80,000 through these methods, the parties agreed, the three would share

“enjoyment[]” of the property and related “liabilities” and “responsibilities,” allocated in

two equal shares, with one (50 percent) share for Cummings, and the other (50 percent)

share to be divided equally between Dessel and Seal.

After the parties signed the agreement, a dispute arose regarding the grant deed the

seller had signed. The deed was recorded on June 26, 2009, and gave each party an equal

one-third interest in the property, listing them as joint tenants. Seal later argued the

agreement had been to share any profits 50-50, but to divide ownership into equal onethird

shares. Cummings disputed this point, maintaining the agreement had been to

allocate ownership in two equal shares, with one 50-percent share for her and the other

50-percent share divided equally between Dessel and Seal. Cummings subsequently

recorded quitclaim deeds, which reflected the latter division, and described the parties as

tenants in common.

3

With this exception, the partnership initially proceeded as planned. Dessel and

Seal made payments as agreed and commenced work on the property. During the course

of about a year, they gutted the residence, leaving it a shell. At that point, Dessel and

Seal stopped work on the property. Then, in late November or early December 2010,

they told Cummings they could no longer make their monthly payments. The parties‟

relationship deteriorated. Eventually, Cummings took over the monthly payments and

payment of the property taxes to protect her investment.

B. Procedural History

In August 2011, Cummings filed suit against Dessel and Seal, alleging causes of

action, among other things, for quiet title to establish her 50 percent ownership interest in

the property and for partition. Dessel and Seal filed a cross-complaint, alleging several

causes of action—for breach of contract, breach of an implied covenant of good faith and

fair dealing, nuisance, fraud, and injunctive relief—essentially contending the court

should enforce the parties‟ agreement.

The bench trial of this matter was continued several times. Eventually, it was

scheduled to commence on November 3, 2014. Two weeks before that date, on

October 21, 2014, Dessel and Seal, representing themselves, filed a motion to continue

the trial to an indefinite date in “the first part of 2015.” They explained they had not yet

raised the funds to retain counsel, they were grieving the sudden death of a close family

friend whose funeral might be scheduled for a date during the trial, and they might need

to travel to visit Dessel‟s father, and Seal‟s grandfather (Grandfather), who recently had

been hospitalized, and was reported to be in rapidly declining health. Cummings

opposed the request, pointing out that the trial date had been continued several times

previously, including once almost a year earlier, after the attorney then representing

Dessel and Seal had withdrawn. Cummings observed the long delay left her alone

responsible for meeting payments on the note, even though Seal was the person then

actually residing on the property. The court issued an order denying the motion, but

4

continuing the trial to November 6 for reasons of court necessity. In the order, the court

stated an intent to take a one-day recess on November 8, to allow Dessel and Seal to

attend the funeral of the family friend, if it was scheduled for that date. When the parties,

thereafter, appeared for trial on November 6, 2014, the court ordered a further

continuance until December 1, 2014, due to its own unavailability.

On December 1, Cummings appeared for trial with her counsel, and Seal appeared

representing herself. Dessel did not appear. Although no court reporter was present on

that date, and the record, therefore, includes no transcript of the proceedings,

1

other

documents included in the record indicate that Seal told the trial court Dessel was ill—

without providing any supporting documentation—and requested a further continuance,

which the court denied. The bench trial then commenced and continued for five days.2



After the parties completed their presentation of evidence, the trial judge stated his

intended findings, which he later confirmed in an interlocutory judgment filed on

January 6, 2015. The interlocutory judgment granted Cummings‟s quiet title cause of

action, determining that Cummings owned 50 percent of the property, Dessel and Seal

each owned 25 percent, and the parties held the property as tenants in common.

Additionally, concluding partition was an appropriate remedy, the interlocutory judgment

specified a procedure by which the parties could bid against each other to purchase the

property, and set $125,000 as the minimum bid, “based upon the testimony of



1

It appears neither party had requested a court reporter in advance of trial. (See

Code Civ. Proc., § 269, subd. (a)(1) [court reporters are available in civil cases on a

party‟s request]; Super. Ct. Humboldt County, Local Rules, rule 1.7.3 [“To ensure the

presence of a court reporter for the first day of a proceeding lasting more than one hour,

one or more of the parties must, at least five court days prior to the date . . . , file a written

statement requesting a court reporter‟s presence . . . and pay their pro rata share of the

one-half day fee”].)

2

Dessel made no appearance at the trial. A court reporter, however, did attend for

the final three days of the trial.

5

[Cummings‟s] expert witness Matthew Babich.”

3

Finding that Cummings, by then, had

invested a total of $124,353.51 in the property, including her original down payment,

while Dessel and Seal had invested $39,588.36, the trial court ruled Cummings was

entitled to a credit in the bidding process equal to the amount of the difference

($84,765.15). The successful bidder was to assume all existing obligations under the

parties‟ agreement and the seller‟s note. If no party took title to the property, the

interlocutory judgment directed, it was to be listed and sold to the public at whatever

value bidders offered.

4



Pursuant to the procedure specified in the interlocutory judgment, on January 30,

2015, Cummings submitted the minimum bid for the property ($125,000). Dessel and

Seal did not submit bids. Under the interlocutory judgment, this meant Cummings was

awarded full ownership of the property. Because she had an outstanding credit of

$84,765.15, and would assume sole responsibility for completing payment on the seller‟s

outstanding note ($120,000), the interlocutory judgment allowed Cummings to buy the

property from Dessel and Seal without paying any additional money. On May 8, 2015,

the trial court filed an amended judgment confirming completion of the sale and

Cummings‟s status as sole owner of the property. The amended judgment awarded

Cummings her attorney fees and costs. This timely appeal followed.



3

Although the court minutes reflect Babich testified during the second day of

trial, when no court reporter was present, in stating the court‟s intended findings, the trial

court judge summarized Babich‟s testimony as valuing the property at between $100,000

and $150,000.

4

The trial court rejected the claims Dessel and Seal had presented in their crosscomplaint

without discussion, and Dessel and Seal did not take issue with that ruling in

their opening appellate brief.

6

II. DISCUSSION

A. Partition

1. Legal principles and standard of review

“A co-owner of real or personal property may bring an action for partition. (Code

Civ. Proc., § 872.210.) „The primary purpose of a partition suit is . . . to partition the

property, that is, to sever the unity of possession. [Citations.]‟ [Citation.])” (LEG

Investments v. Boxler (2010) 183 Cal.App.4th 484, 493; see also 14859 Moorpark

Homeowner’s Ass’n v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1404-1405

[“ „partition‟ ” is “ „the procedure for segregating and terminating common interests in

the same parcel of property‟ ”].) “ „Partition is a remedy much favored by the law. The

original purpose of partition was to permit cotenants to avoid the inconvenience and

dissension arising from sharing joint possession of land. An additional reason to favor

partition is the policy of facilitating transmission of title, thereby avoiding unreasonable

restraints on the use and enjoyment of property.‟ [Citation].” (LEG Investments, supra,

at p. 493.) “[A]lthough the action of partition is of statutory origin in this state, it is

nonetheless an equitable proceeding.” (Elbert, Ltd. v. Federated Income Properties

(1953) 120 Cal.App.2d 194, 200; see Code Civ. Proc.,

5

§ 872.140.)

“If the court finds that the plaintiff is entitled to partition, it shall make an

interlocutory judgment that determines the interests of the parties in the property and

orders the partition of the property and, unless it is to be later determined, the manner of

partition.” (§ 872.720, subd. (a).) The manner of partition may be “in kind”—i.e.,

physical division of the property (see, e.g., Butte Creek Island Ranch v. Crim (1982)

136 Cal.App.3d 360, 365 (Butte Creek))—according to the parties‟ interests as

determined in the interlocutory judgment. (§ 872.810; see § 873.210 et seq.)

Alternatively, if the parties agree or the court concludes it “ would be more equitable,”



5

All undesignated statutory references below are to the Code of Civil Procedure.

7

the court may order the property sold and the proceeds divided among the parties.

(§ 872.820; see § 873.510 et seq.) The third option, “[w]hen the interests of all parties

are undisputed or have been adjudicated,” and the parties agree (§ 873.910), is partition

by appraisal. (See § 873.910 et seq.)

“As a rule, the law favors [the first option,] partition in kind, since this does not

disturb the existing form of inheritance or compel a person to sell his property against his

will.” (Richmond v. Dofflemyer (1980) 105 Cal.App.3d 745, 757; see §§ 872.810,

872.820.) “The presumption is that land held in common tenancy can be equitably

divided between the parties by allowing each a tract in severalty, equal to his interest in

the whole, measured by value. [Citation.]” (Richmond, supra, at p. 757.) “ „[I]n many

modern transactions, [however,] sale of the property is preferable to physical division

since the value of the divided parcels frequently will not equal the value of the whole

parcel before division. Moreover, physical division may be impossible due to zoning

restrictions or may be highly impractical . . . .‟ ” (Butte Creek, supra, 136 Cal.App.3d at

p. 365.)

The standard of review for an interlocutory judgment of partition is abuse of

discretion. (See, e.g., Butte Creek, supra, 136 Cal.App.3d at p. 369; see also Lin v. Jeng

(2012) 203 Cal.App.4th 1008, 1025 [“When a trial court makes a ruling based upon

equitable considerations, the abuse of discretion standard applies on review of that

ruling”].) Under that standard, “[t]he trial court‟s „application of the law to the facts is

reversible only if arbitrary and capricious.‟ [Citation.]” (In re Charlisse C. (2008)

45 Cal.4th 145, 159.) “[A] disposition that rests on an error of law [also] constitutes an

abuse of discretion. [Citation.]” (Ibid.)

2. Analysis

a. Partition method

Here, concluding physical partition, or partition in kind, was not feasible, the trial

court prescribed a partition procedure that potentially included two separate stages,

8

effectively combining partition by appraisal and partition by sale as successive

alternatives. In the first stage, the parties could bid against each other to purchase the

property and take title independently, with the minimum bid specified as $125,000, based

upon the appraisal of Cummings‟s expert Babich. If no party submitted a bid matching

or exceeding the minimum amount, the property was to be listed and sold to the public at

whatever value could be obtained. Dessel and Seal contend this procedure did not meet

the requirements for either partition by appraisal or partition by sale and the trial court,

therefore, erred in adopting it. We agree.

The first stage of the procedure amounted to partition by appraisal. Under this

alternative, one or more parties may acquire the interests of other co-owners in a piece of

property at the appraised value of those interests. (§ 873.910 et seq.; see also, e.g.,

12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 82, p. 130;

Recommendation Relating to Partition of Real and Personal Property (Jan. 1975) 13 Cal.

Law Revision Com. Rep. (1975) p. 414.) The California Law Revision Commission, in

1975, recommended the legislation that created this alternative, along with other statutory

changes intended to “reorganize[], revise[], and modernize[]” the partition statute.

(Recommendation Relating to Partition of Real and Personal Property, supra, 13 Cal.

Law Revision Com. Rep. at p. 411.) Although there is no case law interpreting the

statutes authorizing partition by appraisal, the Commission‟s 1975 report explained they

were intended to address situations “where physical division [would be] inequitable or

impossible, and sale [would] result in an unwanted tax liability or in loss of property

which one of the owners desire[d] to keep.” (Id. at p. 414.) Partition by appraisal, the

Commission advised, would “be an expeditious and effective means of terminating the

differences among the coowners, while at the same time allowing one to retain the

property without the expenses of sale and without the imposition of undesired tax

liability.” (Ibid.; see, e.g., DP Pham LLC v. Cheadle (2016) 246 Cal.App.4th 653, 670,

fn. 7 [“ „ “Explanatory comments by a law revision commission are persuasive evidence

9

of the intent of the Legislature in subsequently enacting its recommendations into

law” ‟ ”].)

The unambiguous language of the partition by appraisal statutory provisions,

however, requires an agreement among the parties. Section 873.910—the first section of

chapter 7 of title 10.5, which describes partition by appraisal—states, “[w]hen the

interests of all parties are undisputed or have been adjudicated, the parties may agree

upon a partition by appraisal pursuant to this chapter.” (Italics added.)

Section 873.920—the next section of the chapter—directs, “[t]he agreement shall be in

writing filed with the clerk of court . . . .”6

(Italics added.) Here, however, as Cummings

acknowledges on appeal, there was no agreement among the parties, written or otherwise,

to partition the property by appraisal. The trial court, therefore, erred as a matter of law

in adopting a procedure that commenced with a partition-by-appraisal bidding stage.

Cummings attempts to avoid this result by characterizing the trial court‟s

prescribed procedure as directing partition by a private sale, and not partition by

appraisal. But the procedure specified in the interlocutory judgment did not meet the

statutory requirements for a private sale. Under section 872.820, a trial court may

compel the sale of a property, and division of the proceeds among the parties, without the

parties‟ agreement, if it determines this “would be more equitable than division of the

property.” In such circumstances, the court may order the property “sold at public



6

Section 873.920 provides in full as follows: “The agreement shall be in writing

filed with the clerk of court and shall include: [¶] (a) A description of the property.

[¶] (b) The names of the parties and their interests. [¶] (c) The names of the parties who

are willing to acquire the interests. [¶] (d) The name or names of a person or persons to

whose appointment as referee or referees the parties consent. [¶] (e) The date or dates as

of which the interests to be acquired are to be appraised. [¶] (f) Other terms mutually

agreed upon which may include, but are not limited to, provisions relating to

abandonment of the action if the appraised value of the interest to be acquired exceeds a

stated amount, required deposits on account of purchase price, terms of any credit, title

and objections to title, and payment of the expenses of the procedure authorized by this

chapter and of costs of the action.”

10

auction or private sale,” depending on which will be “more beneficial to the parties.”

(§ 873.520.) In doing so, the court may “prescribe such manner, terms, and conditions of

sale not inconsistent with the provisions of this chapter as it deems proper for the

particular property or sale.” (§ 873.610, italics added.)

One provision of the referenced chapter—chapter 6 of title 10.5 (§ 873.510 et

seq.)—directs that “[n]otice of the sale . . . shall be given in the manner required for

notice of sale of like property upon execution.” (§ 873.640, subd. (a).)7

The plain

language of this provision contains no exception for private sales. The requirements for

notice of sale of an interest in real property upon execution are stated in section 701.540,

and include public notice. Among other things, section 701.540 directs that notice of the

sale must be posted both on the property to be sold and in one public place in the city or

county where the sale is to occur, and requires that notice also be published once a week

for three successive weeks in a local newspaper of general circulation. (§ 701.540,

subds. (d)(1), (g);8

see also Gov. Code, § 6063.9

)



7

Section 873.640 provides in pertinent part as follows: “(a) Notice of the sale of

real or personal property shall be given in the manner required for notice of sale of like

property upon execution. Such notice shall also be given to every party who has

appeared in the action and to such other interested persons as may have in writing

requested the referee for special notice. [¶] (b) Where real and personal property are to

be sold as a unit, notice of the sale may be in the manner required for notice of sale of

real property alone. [¶] (c) The court may order such additional notice as it deems

proper. . . .”

8

Section 701.540 provides in pertinent part as follows: “(a) Notice of sale of an

interest in real property shall be in writing, shall state the date, time, and place of sale,

shall describe the interest to be sold, and shall give a legal description of the real property

and its street address or other common designation, if any. . . . [¶] (b) Not less than 20

days before the date of sale, notice of sale of an interest in real property shall be served,

mailed, and posted . . . as provided in subdivisions (c), (d), (e), and (f). [¶] (c) Notice of

sale shall be served on the judgment debtor. Service shall be made personally or by mail.

(d) Notice of sale shall be posted in the following places: [¶] (1) One public place in the

city in which the interest in the real property is to be sold if it is to be sold in a city or, if

not to be sold in a city, one public place in the county in which the interest in the real

property is to be sold. [¶] (2) A conspicuous place on the real property. [¶] . . . . [¶]

11

The partition statutes further direct that “[t]he court shall prescribe the contents of

the notice of sale, which shall include a description of the property, the time and place of

sale, and a statement of the principal terms of sale.” (§ 873.650, subd. (a).) A notice of

private sale must also “state a place where bids or offers will be received and a day on or

after which the sale will be made.” (§ 873.650, subd. (b).) A private sale may not be

completed “before the day specified in the notice of sale but shall be made within one

year thereafter.” (§ 873.680, subd. (a).) The bids or offers for a private sale “shall be in

writing and left at the place designated in the notice at any time after the first publication

or, if none, the posting of the notice.” (§ 873.680, subd. (b).) Only three categories of

people are identified as being ineligible to purchase property in a partition sale, namely, a

referee appointed by a court to divide or sell the property (see § 873.010, subd. (a)), a

party‟s attorney, and a party‟s guardian or conservator unless for the party‟s benefit.

(§ 873.690.)

Viewing the statutory framework as a whole, it is evident the intent was to ensure

that members of the public receive notice and have an opportunity to bid on property

during a partition sale, whether a sale at public auction or a private sale. (See, e.g.,

Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 724 [In interpreting a



(g) Notice of sale shall be published pursuant to Section 6063 of the Government Code,

with the first publication at least 20 days prior to the time of sale, in a newspaper of

general circulation published in the city in which the real property or a part thereof is

situated if any part thereof is situated in a city or, if not, in a newspaper of general

circulation published in the public notice district in which the real property or a part

thereof is situated. If no newspaper of general circulation is published in the city or public

notice district, notice of sale shall be published in a newspaper of general circulation in

the county in which the real property or a part thereof is situated.”

9

Government Code section 6063 provides as follows: “Publication of notice

pursuant to this section shall be once a week for three successive weeks. Three

publications in a newspaper regularly published once a week or oftener, with at least five

days intervening between the respective publication dates not counting such publication

dates, are sufficient. The period of notice commences upon the first day of publication

and terminates at the end of the twenty-first day, including therein the first day.”

12

statute, we examine the language “in the context of the statutory framework as a whole in

order to determine its scope and purpose”].) This is logical because, by maximizing the

pool of potential bidders, one might reasonably hope to secure a higher sales price.

The word “private,” as used in the term “private sale” in the partition statutes

apparently refers to the bidding procedure—i.e., written bids submitted at a designated

location (§ 873.680, subd. (b)), to be reviewed by the referee conducting the sale (see

§§ 873.010, subd. (a), 873.710), presumably in a setting that is private, as compared to a

public auction. Indeed, to construe the term “private sale” as restricting the bidders only

to the co-tenants of the property, would be inconsistent with the provisions of chapter 6

(§ 873.510 et seq.) and, in particular section 873.690, which, by clear implication,

includes the public at large as bidders. (See, e.g., Lucioni v. Bank of America, N.A.

(2016) 3 Cal.App.5th 150, 159 [“ „Generally, the expression of some things in a statute

implies the exclusion of others not expressed‟ ”].) Interpreting the statutes describing

partition by private sale as limiting potential bidders to the parties in the individual case

also would make the transaction effectively identical to a partition by appraisal, and

would render meaningless the limitation that partition by appraisal may occur only where

the parties have agreed in writing. (§ 873.910; see, e.g., Donorovich-Odonnell v. Harris

(2015) 241 Cal.App.4th 1118, 1133 [“ „ “ „ “An interpretation that renders related

[statutory] provisions nugatory must be avoided . . . .” ‟ ” ‟ ”].) Accordingly, we reject

Cummings‟s suggestion that we interpret the term in that manner.

The trial court‟s partition procedure also did not comply with the requirements

governing partition by sale of the property, because it did not direct the public posting or

publication of notice regarding the sale. The interlocutory judgment only directed

Cummings‟s counsel to notify “the parties . . . of the date, time, and location of the

bidding.” (Italics added.) As a result, the only notifications were the letters that

Cummings‟s counsel sent Dessel and Seal, giving them the information for submission of

any bids and notifying them afterward about Cummings‟s successful bid.

13

In sum, we conclude the trial court erred because the procedure it ordered did not

comply with the statutory requirements for partition by appraisal or for partition by sale.10



We shall, nonetheless, affirm the judgment because the error was not prejudicial, as it did

not affect the result.

b. Harmless error

Error alone does not warrant reversal. (In re Marriage of Falcone & Fyke (2008)

164 Cal.App.4th 814, 822.) “ „It is a fundamental principle of appellate jurisprudence in

this state that a judgment will not be reversed unless it can be shown that a trial court

error in the case affected the result.‟ [Citation.] „ “The burden is on the appellant, not

alone to show error, but to show injury from the error.” ‟ [Citation.] „Injury is not

presumed from error, but injury must appear affirmatively upon the court‟s examination

of the entire record.‟ [Citation.] „Only when an error has resulted in a miscarriage of

justice will it be deemed to be prejudicial so as to require reversal.‟ [Citation.] A

miscarriage of justice is not found „unless it appears reasonably probable that, absent the

error, the appellant would have obtained a more favorable result.‟ [Citation.]” (Id. at

pp. 822-823.) “ „A reasonable probability for these purposes does not mean an absolute

probability; the likelihood that the error affected the outcome need not be greater than the

likelihood that it did not. [Citation.] The test is satisfied, and prejudice appears, if the

case presents “an equal balance of reasonable probabilities.” [Citation.]‟ [Citation.]”

(Sabato v. Brooks (2015) 242 Cal.App.4th 715, 725.)

Dessel and Seal have not affirmatively demonstrated a reasonable probability of a

more favorable result absent the error. In their opening brief, they attempt to meet this

burden by pointing to a single page of the trial transcript. It contains Seal‟s assertion, in

her closing argument, that a nearby property “sold in June [six months earlier] for



10

Because this error is legal in nature, involving the propriety of the remedy

adopted, we reject Cummings‟s argument that the appeal must be denied for failure to

provide an adequate record.

14

$400,000 fixed up.” Although “ „argument is not evidence[]‟ ” (Eller Media Co. v.

Community Redevelopment Agency (2003) 108 Cal.App.4th 25, 38), Dessel and Seal

suggest that, because Seal represented herself at the time, had been allowed to testify in a

narrative manner, and remained under oath, we should consider her statement in closing

argument as testimony, offering an opinion as an owner about the value of the property.

It is true that “an owner is perfectly competent to testify as to the value of . . . her

own property.” (In re Marriage of Stoll (1998) 63 Cal.App.4th 837, 843; see also Evid.

Code, § 813, subd. (a)(2) [The value of property may be shown by the opinion of the

owner].) Even if we were to consider Seal‟s statement as testimony, and to infer she was

offering an opinion about the value of the property here in dispute—albeit testimony that

was not tested through cross-examination, was uncorroborated, and was unsupported by

accompanying detail, e.g., about the nature, size, or condition of the “fixed up”

property—the opinion concerned the price that might be paid at some unspecified date in

the future, after the property here in question had been refurbished. Seal urged the court

to direct Cummings to pay her and Dessel half the price of a “finished property,” and

then noted “a property . . . very close to [theirs] . . . just recently sold in June for

$400,000 fixed up.” (Italics added.) Seal‟s untested and unsupported opinion about the

possible future value of the property after being “fixed up” did not establish a reasonable

probability someone other than Cummings would have paid more than $125,000 for it at

the time of the trial, when the structure located on it remained a gutted shell.

11

Moreover,

Seal herself acknowledged that market conditions at that time were far from ideal.

According to the trial judge, Cummings‟s expert Babich set the property‟s value at

between $100,000 and $150,000. In her closing argument, Seal remarked that Cummings



11

In their reply brief, Dessel and Seal also cite Michael Reiman‟s testimony as

providing an alternative valuation of the property. But Reiman, general manager of a

local vacation rental business, only testified about the property‟s potential future rental

income ($43,050 annually) once renovations were completed.

15

seemed excited about partition; Seal suggested, “Perhaps [it was] because an unfinished

property devalued so on today‟s market might be brought [sic] up . . . at a very cheap

bargain, [for] next to nothing, really.” Based on all of the above, we reach the ineluctable

conclusion plaintiff has failed to show that a partition by sale would have netted any

greater sum than the appraisal.

Dessel and Seal also appear to contend, in an undeveloped argument, that the trial

court‟s failure to order a sale allowing the public to bid on the property was prejudicial

per se, requiring automatic reversal without a showing of injury, because it violated their

“substantial right[s].” They cite no authority supporting their characterization of the

error, however, nor any authority discussing the circumstances in which automatic

reversal is required. Automatic reversal is appropriate where there is a structural error

“ „ “affecting the framework within which the trial proceeds, . . .” ‟ [Citation.]”

(Diamond v. Reshko (2015) 239 Cal.App.4th 828, 849.) “ „In the civil context, structural

error typically occurs when the trial court violates a party‟s right to due process by

denying the party a fair hearing,‟ ” for example, by “ „denying a party‟s request for a jury

trial [citation] [or] violating a party‟s right to present testimony and evidence [citation].‟

[Citation.]” (Aulisio v. Bancroft (2014) 230 Cal.App.4th 1516, 1527 [finding the trial

court there committed structural error by effectively precluding one party from

participating in the trial].) The cursory argument Dessel and Seal submit on this point,

supported by only one citation to a case that is not on point, does not convince us the trial

court‟s error in the procedure it specified for the partition sale qualified as, or even

approached, the level of a structural defect.

B. Motion to continue the trial date

Dessel and Seal also assert the judgment must be reversed because the trial court

abused its discretion, denying them a fair hearing, when it refused their motions to

continue the trial date.

16

“To ensure the prompt disposition of civil cases, the dates assigned for a trial are

firm. All parties and their counsel must regard the date set for trial as certain.” (Cal.

Rules of Court, rule 3.1332(a).)12

“Trial continuances are disfavored and may be granted

only on an affirmative showing of good cause. [Citations.]” (Thurman v. Bayshore

Transit Management, Inc. (2012) 203 Cal.App.4th 1112, 1127.) A party seeking a

continuance must make the request by a noticed motion or an ex parte application, with

supporting declarations, “as soon as reasonably practical once the necessity for the

continuance is discovered.” (Rule 3.1332(b).) Although a party‟s unavailability due to

“illness” or “other excusable circumstances” may constitute good cause for a continuance

(rule 3.1332(c)(2)), a trial court generally has “broad discretion in deciding whether to

grant a request for a continuance” (Freeman v. Sullivant (2011) 192 Cal.App.4th 523,

527), and its decision will not be disturbed on appeal absent a clear showing of abuse of

discretion. (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984.)

Dessel and Seal have not made such a showing. When they moved to continue the

trial date, from November 3 to “the first part of 2015,” the case had been pending for

more than three years, and Cummings opposed their request, observing the trial date

previously had been continued three times. The various grounds that Dessel and Seal

stated in their motion—inadequate funds to retain trial counsel, grief over the recent

death of a close family friend, the possibility the friend‟s funeral might be set for a day

they were in trial, and Grandfather‟s hospitalization and poor health—did not compel an

exercise of discretion delaying the trial date. In a civil case, parties may act as their own

attorneys, and Dessel and Seal did not provide firm information indicating they would be

unavailable on November 3. (See rule 3.1332(c)(2) [Although disfavored, continuance of

a trial date may be granted if, for example, a party is “unavailab[le] . . . because of death,

illness, or other excusable circumstances”].) Nor have they shown any prejudice



12

All further references to rules below are to the California Rules of Court.

17

resulting from the denial of that motion. The trial court offered a one day recess if

necessary to allow their attendance at the family friend‟s funeral, and then continued the

trial date on its own motion, due to the court‟s own unavailability, until December 1,

allowing Dessel and Seal almost a month to visit with Grandfather. (See, e.g., Rebney v.

Wells Fargo Bank (1990) 220 Cal.App.3d 1117, 1141 [An appellant must demonstrate

prejudice from the trial court‟s denial of a request to continue the trial].)

On the new trial date, December 1, Cummings and Seal appeared for trial, but

Dessel did not. There is no indication Seal or Dessel submitted any advance request for a

further continuance. (See rule 3.1332(b).) It appears Seal simply made an oral request

on the morning of the first day of trial, advising that Dessel was ill, without supplying

any documentary evidence.

13

Although we do not have a transcript of the proceedings on

that date, the court minutes reflect Seal‟s motion was denied and the trial then

commenced. Dessel and Seal contend the trial court abused its discretion in denying the

request, depriving them of a fair hearing on their counterclaims for breach of contract and

breach of the implied covenant of good faith and fair dealing. They submit Dessel‟s

testimony was necessary to support those claims because she negotiated the agreement

upon which they were based. But, following the first day of trial, the parties‟

presentation of evidence continued for several days. Dessel and Seal cite no evidence

indicating they attempted to corroborate the nature or severity of Dessel‟s illness, or

otherwise support that she was physically unable to attend the trial. (Rule 3.1332(c)(2).)

Dessel did not appear in court personally or submit a declaration, although she and Seal

provided multiple declarations to support their earlier request for a continuance. Nor was

any documentation submitted from a physician. Given this, and considering both the

history and posture of the case, and the fact Cummings, by then, had been making all



13

In their reply brief on appeal, Dessel and Seal belatedly submit that Dessel

“was fighting” a “chest cold” at the time of trial, which “had settled in her lungs.”

18

monthly payments on the seller‟s note for four years unassisted, we cannot say the trial

court abused its discretion in denying a further continuance.

Dessel and Seal cite Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th

1389, as support for their position that the decision constituted reversible error. But the

facts there were different. In Oliveros, “[d]ue to a series of circumstances beyond his

immediate control, [a party‟s] lawyer found himself engaged in trial in another courtroom

on . . . the trial date in [that] case.” (Id. at p. 1400.) “The judge in the [second] case

declined to continue it in the face of the conflicting trial dates because the case in her

courtroom was the older of the two.” (Id. at pp. 1396-1397.) The case that gave rise to

the decision “was a complicated medical malpractice case in which the parties intended

to present the testimony of 43 witnesses, 18 of whom were designated as experts, and in

which substantial damages were at stake. [The lawyer] had invested over 250 hours in

preparing [the] case for trial. [He] represented to the court that none of the lawyers in his

office who had sufficient litigation experience to try [the] case were available to do so on

the date set for trial, and detailed the matters in which they were engaged to the exclusion

of [that] case.” (Id. at p. 1397.) Although acknowledging that a trial judge “must have

discretion to deny a request for a continuance when there is no good cause for granting

one” (id. at p. 1396), the Court of Appeal concluded it had been reversible error to deny a

continuance there, particularly as the judge‟s reported comments suggested his only

consideration had been “the impact of a continuance on the court‟s calendar.” (Id. at

p. 1399 [while a valid factor to consider, the impact a continuance may have on a court‟s

calendar cannot be the only consideration].)

Here there was no comparable showing of good cause. We also have no transcript

recording the trial judge‟s remarks in ruling on Seal‟s last minute motion and, therefore,

no evidence the trial court did not properly weigh the factors and circumstances

presented. (See, e.g., Randall v. Mousseau (2016) 2 Cal.App.5th 929, 935 [“Failure to

19

provide an adequate record on an issue requires that the issue be resolved against

appellant”].) Accordingly, we cannot find the trial court abused its discretion.14



C. Attorney Fees

Cummings submits she should be awarded her attorney fees on appeal as a

sanction because the appeal was frivolous. Such a request, however, must be made by a

separate noticed motion for sanctions. (See rules 8.276(a)(3), 8.54.) Cummings did not

comply with this requirement and we, therefore, deny the request. (See, e.g., City of

Crescent City v. Reddy (2017) 9 Cal.App.5th 458, 468.)

Cummings also makes a cursory argument that she is entitled to half her

reasonable attorney fees on appeal because she incurred them for the “common benefit”

of the property‟s owners. (See § 874.010, subd. (a) [“The costs of partition include:

[¶] (a) Reasonable attorney‟s fees incurred or paid by a party for the common benefit”].)

Whether attorney fees were incurred for the common benefit “must be decided upon the

facts and circumstances in each particular case.” (Stewart v. Abernathy (1944) 62

Cal.App.2d 429, 433.) Cummings supports her request simply by pointing to the trial

court‟s decision to award her fees, and by citing to a single case, Stutz v. Davis (1981)

122 Cal.App.3d 1. In Stutz, however, the partition resulted in a substantial payout to the

parties ($280,000 to one party and $560,000 to the other). (Id. at p. 5.) Here, Cummings

does not even attempt to explain how her partition action before the trial court created a



14

Although Dessel and Seal initially were represented by counsel on this appeal,

their counsel withdrew after filing an opening brief. Dessel and Seal then filed a reply

brief acting pro se. The reply brief raised a number of new issues for the first time.

Waiting until the reply brief to make an argument, however, forfeits the argument.

(People v. Bonilla (2007) 41 Cal.4th 313, 349-350.) Accordingly, we deem these

arguments forfeited and decline to address them. (People v. Smithey (1999) 20 Cal.4th

936, 1017, fn. 26 [“ „points raised in the reply brief for the first time will not be

considered, unless good reason is shown for failure to present them before‟ ”].) We also

deny the motion Dessel and Seal filed on November 30, 2015, to augment the record with

improved copies of an exhibit referenced in their reply brief, because the exhibit is not

relevant to any issue we discuss in this decision.

20

common benefit, or how her defense of the judgment on appeal did so. Nor does she cite

to any findings by the trial court that would support a conclusion the partition action

conferred a common benefit. No substantive argument having been proffered, we do not

consider the issue. (See, e.g., Cahill v. San Diego Gas & Electric Co. (2011) 194

Cal.App.4th 939, 956 [When an appellant fails to support a point “ „ “with reasoned

argument and citations to authority, we treat the point as waived” ‟ ”; “ „We are not

bound to develop appellants‟ argument for them‟ ”].)

The judgment is affirmed. In the interests of justice, each party to bear their own costs on appeal.