Lau v. Lau
Filed 8/6/13 Lau v. Lau CA2/2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
DAIVD LAU,
Plaintiff and Respondent,
v.
DORA LAU,
Defendant and Appellant.
B241939
(Los Angeles
County
Super. Ct.
No. BC435921)
APPEAL from
a judgment of the Superior Court
of
County.
Elizabeth Allen White, Judge. Affirmed.
Law Offices
of Larry Fabrizi, Larry Fabrizi for Defendant and Appellant.
Wong &
Mak, Steven W. Hashimoto for Plaintiff and Respondent.
___________________________________________________
>
Appellant contends that the trial court erred by ordering
partition of a property. She argues that
the court should have found that the right to partition was waived. Because substantial
evidence supported the conclusion that there was no waiver, we affirm the
interlocutory judgment ordering partition.
Factual and Procedural Background
Plaintiff
and respondent David Lau is the brother of defendant and appellant Dora
Lau. At the time of trial in this
matter, David was 54 years old and Dora was 61.
and it went to a bench trial in April 2012.
The
operative second amended complaint sought, inter alia, partition of the real
property located at 2901 North Beverly Glen Boulevard
in Los Angeles (the property). A two-story house sits on the property.
The
property was purchased in 1991 with funds from David and Dora’s parents, Lau
Tung and Tse Yuen Hen. Dora lived with
her sons in the house for a while, and she and one son continue to use the
house on occasion. David and his parents
also stayed at the property from time to time.
Title to the property was held by the family at the time of the parents’
death, when it passed to David and Dora.
Title is currently held by Dora, as the trustee of a family trust, and
by David, with each having a one-half interest as tenants in common.
Dora
testified at trial that her and David’s parents decided to purchase the
property so that the family would have a home in the United
States as well as an American location for
the operations of the family company, Crown Records. Crown Records was a once-successful Hong
Kong-based music company started by the parents in the 1950’s. Crown Records, Inc. USA was formed to
distribute audio and video recordings produced by Crown Records.
Prior to
1991, Crown Records, Inc. USA had a distribution center located at another
residential address in Los Angeles. Dora introduced exhibits at trial showing
that since 1991 the business address used for the United States-based company
was that of the subject property.
Records, tapes, and other Crown Records materials were stored in the
garage and living room of the house and distributed from the house to various
locations throughout the United States. After the death of the parties’ mother in
2007, however, the company effectively ceased business. There had been no sales of recordings since
2008. At the time of trial, the
California Secretary of State website listed Crown Records, Inc. USA as suspended.
David
worked for Crown Records in Hong Kong, helping his
parents run the business, since 1992.
After the death of the mother, Dora initiated a lawsuit in Hong
Kong, contending that the company had been mismanaged by David,
and seeking to recover Crown Records’ property and publishing rights. She testified that her reason for filing the
lawsuit was to gain control of Crown Records and continue to distribute its
products in the United States. David, on the other hand, testified that
Crown Records had been dissolved and that there were no plans to resume
business in the future.
After
hearing the evidence and argument presented in this matter, the trial court
issued an oral statement of decision.
The trial court stated that, although the right to partition can be
waived, there was no basis to find waiver given the facts of this case. It found that the parents purchased the
property not just to house Crown Records products, but also for the purpose of
having a residence in the United States
for the family. There was no clear
intent that the property would be used in perpetuity for the Crown Records
business. Furthermore, Crown Records,
Inc. USA was
not in good standing in California
and had no sales since 2008, so the business did not appear to be viable. The property’s former use as a center of
operations for the American company was incidental to its use as a
residence. Accordingly, the trial court
found that the property was subject to partition.
The court
entered an interlocutory judgment in
favor of David in May 2012. The
interlocutory judgment provided that David was entitled to partition and that
the property would be sold to a third party unless the parties could reach an
agreement as to its disposition.
DISCUSSION
Dora
appeals from the interlocutory judgment.
An interlocutory judgment such as this one, which determines rights and
interests of the parties and directs that partition be made, is appealable. (Code Civ. Proc., § 904.1, subd. (a)(9).)
“The
primary purpose of a partition suit is, as the terminology implies, to
partition the property, that is, to sever the unity of possession.†(Schwartz
v. Shapiro (1964) 229 Cal.App.2d 238, 257.)
A co-owner of property held by concurrent interests has the right to
partition unless barred from doing so by a valid waiver. (Code Civ. Proc., § 872.710, subd. (b).) “‘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.’†(LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 493.)
Dora argues
on appeal, as she did below, that the trial court should have found that the
right to partition was waived. Where the
purpose for which the parties acquired the property may be defeated by partition,
an agreement to postpone partition may be implied. (Pine
v. Tiedt (1965) 232 Cal.App.2d 733, 737.)
“Most of the cases that have denied the right of partition have been
cases in which the coowner who is seeking partition was a party to the
agreement which restricted the right of partition either expressly or by
implication, or was so intimately connected with the transaction that the court
concluded that out of fairness his subsequent acquisition of an interest in the
property imposed upon him a limitation or obligation not to seek partition as
long as the agreement or plan of ownership could only be carried out through a
denial of the right of partition.†(
Feller (1976) 59 Cal.App.3d 1008, 1016; see also Pine v. Tiedt, supra, 232 Cal.App.2d at pp. 738-739 [“[T]he rule
applied is that partition cannot be had without the consent of all parties
where it would conflict with a prior agreement of the parties as to the use of
the propertyâ€].)
Dora
contends that a finding of waiver was required because the property was bought
for the purpose of serving as the American center of operations for Crown
Records. She argues that the court would
have found waiver if it had not improperly
admitted evidence favorable to David and excluded evidence
favorable to Dora. The trial court’s
evidentiary rulings are reviewed for abuse of discretion. (Landale-Cameron Court, Inc.
v. Ahonen (2007)
140, fn. 3.)
We agree
with Dora that the trial court abused its discretion on a number of evidentiary
rulings. The trial court should have
admitted into evidence exhibit 68, which was a copy of the document initiating
the legal action in Hong Kong (similar to a complaint),
rather than excluding it on the basis of a relevancy objection. Both parties testified at length about the Hong
Kong litigation, and David was allowed to introduce two documents
from the Hong Kong litigation pertaining to the
“w[inding] up†of Crown Records. Dora
should have been allowed to introduce equally relevant documents. We also agree that Dora should have been allowed
to testify whether she believed that Crown Records could continue as a going
concern, as David was allowed to testify that Crown Records had been “wound upâ€
and “dissolved.â€
Nevertheless,
we find no reason to reverse the judgment.
Following a bench trial, findings on questions of fact are reviewed
under the substantial evidence standard of review. (Brewer
v. Murphy (2008) 161 Cal.App.4th 928, 935.)
“Where [the] statement of decision sets forth the factual and legal
basis for the decision, any conflict in the evidence or reasonable inferences
to be drawn from the facts will be resolved in support of the determination of
the trial court decision.†(
Cal.App.3d 351, 358.)
Viewing the
entirety of the evidence, and taking into account that the trial court should
have allowed further evidence submitted by Dora, there is no question that the
judgment was still supported by substantial
evidence. The trial court’s
erroneous evidentiary rulings were not prejudicial. Dora was allowed to testify that she sought
to gain control of Crown Records in Hong Kong and that
if she did so she would distribute Crown Records products in the United
States.
Thus, the excluded evidence was largely cumulative.
Furthermore,
the trial court did not err by declining to stay this action pending the
conclusion of the Hong Kong litigation.
The trial court’s decision did not hinge on the status of the Hong Kong
lawsuit. Dora acknowledged that the
property is not an asset of Crown Records and, as noted by the trial court in
its statement of decision, the property was not leased to Crown Records. Rather, the trial court found that the
primary use for the property was as a residence, and that the business use was
merely incidental to that. David
testified that he never agreed that the property could be used indefinitely by
Crown Records. Moreover, except for
purposes of storage, the property had not been used by Crown Records since
2008.
That there
existed a chance that Dora could succeed in the Hong Kong litigation and revive
a currently defunct company was not a sufficient reason to deny the much
favored remedy of partition. The trial
court found that the property was not unique to the conduct of a business. Prior to the purchase of the property another
residence had been used to house and distribute Crown Records products. If Dora does succeed in reviving the
business, she can find any number of structures just as well suited to the
business of Crown Records as the subject property.
In sum, the
trial court’s decision is abundantly supported by substantial evidence.
The interlocutory judgment entered on May 2, 2012, is
affirmed.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS.
BOREN,
P.J.
We concur:
ASHMANN-GERST, J.
FERNS, J.*
_______________________________________________________________
* Judge
of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6
of the California Constitution.
refer to David and Dora by their given names in this opinion, with no
disrespect intended. Further, we note
that in 2010 David legally changed his surname from “Lau†to “D’I,†although in
the record and appellate briefs he is generally referred to by his former
surname.
violated Code of Civil Procedure section 872.730, which applies to property
held by a partnership, is frivolous. The
parties in this case stipulated that the property was held by each as tenants
in common. There was no evidence that
the property was held by a partnership—David’s response to a vague question
about his “partner in the property†did not somehow create a partnership out of
thin air.
