Filed 4/4/18 Pippins v. Jah CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE


KATHY A. PIPPINS, as administrator, etc.,
Plaintiff and Respondent,
v.
DAVID JAH, as administrator, etc.,
Defendant and Appellant.

A150218

(San Francisco County
Super. Ct. No. CGC-10-501108)


David Jah appeals from a trial court order apportioning partition costs pursuant to Code of Civil Procedure section 874.040. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The background of this prolonged dispute is well-known to the parties and this court, and we need not recount it in detail here. The estate of decedent Mary Elizabeth Pippins (Pippins Estate) and the Young Estate each held a one-half interest in real property located on 12th Avenue in San Francisco (the property). These interests were held as tenants in common.
The Partition Action and the Sale of the Property
Jah is an heir to the Young Estate. In 2010, Kathy Pippins, in her capacity as administrator of the Pippins Estate, filed a partition action against the Young Estate and others. Following a July 2013 bench trial, the court issued an interlocutory judgment directing the property partitioned by sale and appointing a partition referee (referee). The court reserved jurisdiction to apportion partition costs (§ 874.040). The court denied Jah’s motion to vacate the interlocutory judgment.
As of 2011, Jah was living at the property without Pippins’s consent. After he refused to vacate the property, the referee hired an attorney, who had Jah evicted in 2014. The San Francisco County Sheriff “physically removed” Jah from the property, but he “left behind a massive amount of personal property,” which the referee’s attorney moved and stored at considerable cost. In 2014, the administrator of the Young Estate was suspended, and later removed.
In 2016, the referee received an offer to purchase the property and moved to confirm the sale. The court denied the buyers’ motion to set aside the sale, and escrow closed in April 2016. That same month, the referee deposited the sale proceeds—$1,764,982.46—with the court. In June 2016, the referee filed a final report which, among another things, described how Jah delayed the sale of the property. The report attached a detailed itemization of the time the referee spent, and the services performed: $1,570.94 in costs, and $69,300 in billable time, for a total of $70,870.94. In a supporting declaration, the referee’s attorney, J. Michael Phelps, described the $159,285 in attorney fees and costs incurred to evict Jah, oppose his “excessive” and “frivolous” motions, and defend the referee against “baseless accusations” made against her in connection with the sale of the property. Phelps also described the $23,259.62 in expenses incurred, which included filing fees and the costs to pack, move, and store “the immense amount of personal property” Jah left at the property after his eviction. The court approved the final report.
Motion for Apportionment of Partition Costs
In August 2016, Pippins moved to apportion costs. According to the motion, the partition action had taken “more than six years” because of Jah’s “obstructionist tactics.” The motion also contended Jah’s litigation tactics—including his numerous unsuccessful motions and ex parte applications, and his unsuccessful appeal of the July 2013 interlocutory judgment—contributed to the delay. Pippins argued most of the attorney fees incurred in prosecuting the partition action, all of the attorney fees incurred to evict Jah, and all of the costs incurred to store Jah’s property, would have been unnecessary but for Jah’s actions. Pippins requested 96.25 percent of the attorney fees incurred by the Pippins Estate be allocated to the Young Estate. She requested 100 percent of the referee’s fees and 100 percent of Phelps’s attorney fees be allocated to the Young Estate. Pippins also requested 100 percent of the storage costs incurred by Phelps be allocated to the Young Estate. The motion included a detailed breakdown of the costs and expenses to be allocated to the Young Estate:
(1) $208,348.76 in attorney fees incurred by the Pippins Estate in the partition action, necessitated by Jah’s lack of cooperation and obstructionist tactics, which delayed the sale of the property;
(2) $70,870.94 in referee’s fees, necessitated by Jah’s unwillingness to vacate the property; and
(3) $182,544.62 in attorney fees and costs for Phelps to evict Jah, oppose his meritless motions, and to remove the belongings Jah left at the property.
Finally, the motion noted the Pippins Estate was entitled to reimbursement for expenses it paid for the “property that were for the common benefit of the owners.”
Six days before the hearing on the motion, Jah filed an opposition in propria persona. In it, Jah requested a continuance of almost two months, so an administrator could be appointed for the Young Estate. Jah also argued the motion “misrepresent[ed] and manipulated facts.” Finally, Jah requested the court judicially notice various documents.
Following a hearing, the court granted the motion. In a written order, the court made a factual finding that the “costs of this partition action were increased significantly by the obstructive actions of David Jah” and by the former administrator of the Young Estate, which “delayed unreasonably” the resolution of the partition action. The court also determined “apportionment based upon equitable considerations” was “appropriate” based on the evidence, and apportioned the partition costs as follows: (1) 96.25 percent of Towey’s attorney fees ($213,470.45) to the Young Estate, and the remaining 3.75 percent ($8,317.03) to the Pippins Estate; (2) 100 percent of the referee’s fees and costs ($70,870.94) to the Young Estate; and (3) 100 percent of Phelps’s attorney fees and costs ($182,544.62) to the Young Estate. The court also ordered the Pippins Estate reimbursed for expenses it paid for the common benefit of the parties and related to the property, “resulting in these expenses being shared equally by the Pippins [E]state and the Young [E]state.” The court ordered the clerk to issue a check for $1,091,142.38, plus one-half of the accrued interest, payable to Pippins.
DISCUSSION
“Section 874.040 governs the apportionment of costs in a partition action. It provides: ‘Except as otherwise provided in this article, the court shall apportion the costs of partition among the parties in proportion to their interests or make such other apportionment as may be equitable.’ ” (Lin v. Jeng (2012) 203 Cal.App.4th 1008, 1022 (Lin).) Section 874.010 defines “costs of partition” to include: “[r]easonable attorney’s fees incurred or paid by a party for the common benefit”; the referee’s “fee and expenses”; and “[t]he compensation provided by contract for services of a surveyor or other person employed by the referee in the action.” (§ 874.010, subds. (a)–(c).) When a trial court makes an apportionment “ruling based upon equitable considerations, the abuse of discretion standard applies on review of that ruling. [Citation.] In other words, the ruling must stand unless [the appellant] establish[es] that the trial court exceeded the bounds of reason, resulting in a miscarriage of justice.” (Lin, at p. 1025; Orien v. Lutz (2017) 16 Cal.App.5th 957, 966.) We are not persuaded by Jah’s attempt to distinguish Lin, nor by his argument that the standard of review is a “legal one.”
Jah’s main arguments are that the court erred by apportioning attorney fees to the Young Estate, and that the amount of those attorney fees is excessive and unreasonable. “[I]f an appellant wishes to argue a point on appeal, it must first make a record by raising the point in the trial court.” (Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1433.) Jah did not raise these arguments in the trial court. In opposition to the apportionment motion, Jah did not challenge the apportionment percentages suggested by Pippins. Nor did he explicitly challenge the amount of the attorney fees. As a result, Jah has forfeited these arguments on appeal. (See Gonzalez v. County of Los Angeles (2004) 122 Cal.App.4th 1124, 1131 [the appellate court will “ ‘ “ignore arguments . . . not presented and litigated in the trial court” ’ ”].)
The arguments also fail on the merits. The evidence in the record demonstrates the court used the proper standard to apportion partition costs, and that the court did not exceed the bounds of reason in apportioning 96.25 percent of Towey’s fees, and 100 percent of Phelps’s fees, to the Young Estate. (See Lin, supra, 203 Cal.App.4th at pp. 1025–1026.) The amount of attorney fees was “supported by evidence of the work performed, the hours worked, and the hourly rate charged.” (Id. at p. 1026.) Jah has not demonstrated fees were excessive or unreasonable.
Next, Jah contends the court prejudicially erred by denying his request to continue the hearing on the apportionment motion because the Young Estate “was denied a representative” at the hearing. We disagree. The administrator for the Young Estate was removed in 2014 and Jah failed to utilize available remedies to have another administrator appointed until April 2016. Although he was not a party to the partition action, Jah participated in the case, filing numerous pleadings, including an opposition to the apportionment motion. Finally, Jah cites no authority requiring a trial court to continue a hearing on an apportionment motion under the circumstances presented here. The court did not abuse its discretion by denying Jah’s request to continue the hearing.
DISPOSITION
The trial court’s October 17, 2016 order granting Kathy Pippins’s motion for apportionment (Code. Civ. Proc., § 874.040) is affirmed. Pippins is entitled to costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)





_________________________
Jones, P. J.


We concur:


_________________________
Simons, J.


_________________________
Needham, J.











A150218