Thacher v. Touitou

Filed 6/27/06 Thacher v. Touitou CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Michael M. Anello, Judge. Affirmed.

Prosper Touitou appeals a trial court judgment granting Ducia Hentell, as Trustee of the 1990 Nathan and Ducia Hentell Family Trust's (the Trust) request for partition of Touitou's and the Trust's legal interests in a condominium.^[1] Touitou contends that the judgment must be reversed because the trial court's finding that partition was in his best interest is not supported by the record, and partition is only authorized where it is "in the best interest of all the parties." (Code Civ. Proc., § 872.710, italics added.)^[2] As discussed below, we conclude that the trial court's finding that partition was in the best interest of all the parties, including Touitou, is supported by substantial evidence. Consequently, we affirm the judgment.

FACTS

The subject of the instant action is the parties' respective legal interests in a condominium located at 4734 Collinos Way, Oceanside, California. Prior to 1997, the condominium was solely owned by the Trust. At that time, Ducia Hentell (Hentell) was the sole trustee of the Trust.

In early 1997, Hentell and Touitou became friends and companions. After several months, Touitou moved into the condominium to live with Hentell. In September 1997, Touitou and Hentell executed a "Cohabitation Agreement" setting forth their mutual rights and obligations. The parties agree that this document granted Touitou a life estate in the condominium. Touitou and Hentell lived together in the condominium for approximately seven years until, in May 2003, Hentell moved into an assisted living facility due to her failing health. Touitou continued to live in the condominium.

In September 2004, the Trust brought the instant action for partition of their respective interests in the condominium (Touitou's life estate and Hentell's remainder interest). By requesting partition, Hentell sought to force a sale of the condominium to pay the expenses of her assisted living facility and ongoing medical care. After a two-day bench trial at which Touitou, Hentell and other witnesses testified, the trial court granted Hentell's request for partition.

In a written opinion issued after trial, the trial court considered the factors listed in section 872.710, subdivision (c), the statute governing partition of the successive estates in property, and determined that partition was in the best interest of the parties. The trial court found that partition was in Hentell's best interest because her failing health suggested she would not be able to return to the condominium, and the condominium was her only significant asset, which she needed to sell to pay for ongoing medical care.^[3] The court also determined that partition was in Touitou's best interest, finding: "Mrs. Hentell's health is not the only concern here. Mr. Touitou is also suffering from progressive and debilitating illnesses, including severe cardiac and diabetic conditions. He is no longer able to care for Mrs. Hentell, and in the near future will probably need assisted living care for himself." In addition, the court found the parties' relationship had become a source of conflict -- their "previous affection for each other has been replaced by hostility and distrust." Thus, the primary goal of the life estate created in the Cohabitation Agreement -- for Hentell and Touitou to cohabit -- "is no longer possible due to unanticipated circumstances."

The court further considered Touitou's interest, stating that "[w]hile Mr. Touitou naturally desires 'security' and 'a roof over his head,' he can obtain that 'security' and a comparable 'roof' elsewhere (in fact, just a few doors down the street in the same development)[.^[4]] Further, partition will now put an end to the physical and emotional distress he attributes to his relationship with Mrs. Hentell (a relationship he described as being like 'slavery'). Lastly, partition will afford him a substantial economic benefit" -- $161,880 in cash -- the trial court's computation of the value of the life estate.^[5]

Given these findings, the court ruled that partition was "in the best interest of all the parties," and ordered the property sold, with $161,880 of the proceeds to be paid to Touitou and the balance to Hentell. (§ 872.710, subd. (c).) The court allowed Touitou to reside in the condominium until it was sold. Touitou appeals.

DISCUSSION

Touitou contends on appeal that "the record does not support" the trial court's "finding that partition of the condominium is in [his] best interest." Consequently, Touitou argues partition is unlawful, and the judgment must be reversed.

"Under California law, the term 'partition' signifies 'the procedure for segregating and terminating common interests in the same parcel of property.' " (14859 Moorpark Homeowner's Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1404-1405.) A trial court that grants a partition request may then order that the property be sold and the proceeds divided among the parties according to their respective interests. (§ 872.820, subd. (b).)

An action for partition of a life estate and remainder interest is governed by section 872.710. Under subdivision (c) of that section, "[p]artition as to successive estates in the property shall be allowed if it is in the best interest of all the parties." The statute requires that in making this best interest determination, the trial court consider a number of factors, including the "circumstances under which the estates were created and change in the circumstances since creation of the estates, and all other factors that would be considered by a court of equity having in mind the intent of the creator of the successive estates and the interests and needs of the successive owners." (§ 872.710, subd. (c).)^[6] The Legislative Committee comment to the statute states that section 872.710, subdivision (c) "is designed to give the court fairly broad discretion in the case of successive estates." (Legis. Com. com., 17A West's Ann. Code Civ. Proc. (1980) foll. § 872.710, p. 500.)

Against the backdrop of this substantive law, Touitou challenges the trial court's finding that partition was "in the best interest of all the parties." (§ 872.710, italics added.) Touitou contends "the trial court simply erred when it found that partition . . . was in [his] best interest."

We begin our analysis with the standard of review. " 'Where findings of fact are challenged on a civil appeal, we are bound by the "elementary, but often overlooked principle of law, that . . . the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted," to support the findings below.' " (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053 (Bickel).) In making this determination, we must "view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor." (Ibid.)

Applying this standard of review, we conclude that Touitou's challenge is without merit. There is substantial evidence in the record to support the trial court's finding that partition was in the best interest of all the parties, including Touitou.^[7]

In its written ruling, the trial court identified at least four different reasons partition was in Touitou's best interest: (1) Touitou suffers from serious medical conditions and would probably need assisted living himself in the near future (forcing him to leave the condominium); (2) Touitou would receive a significant economic benefit, $161,880, from partition; (3) Touitou could easily use the money he received from partition to rent an identical apartment in the same complex for the duration of his life expectancy; and (4) partition would remove the strain of Touitou's relationship with Hentell and her family.^[8] Our review of the record reveals that these findings are each supported by substantial evidence, and in concert provide sufficient support for the trial court's ultimate finding that partition was in all of the parties' (i.e., Hentell's and Touitou's) best interest.

Touitou's few specific challenges to the trial court's findings are easily answered. Touitou contends that the trial court's statement that he would probably need assisted living in the future is "speculation." However, there was substantial evidence to support the finding, which Touitou simply ignores. Touitou, who is 82 years old, testified he had significant heart problems, including two prior heart operations, and had been hospitalized "[s]everal times" in the past year, including in the week before the trial. He stated he also suffered from "[v]ery strong" diabetes, of the "worst" type, which resulted in a lack of blood circulation in his leg. As a result of these health problems, Touitou takes 25-30 pills each morning.^[9] Touitou also testified that living in the condominium is difficult because he has to "do everything" himself. In light of this testimony -- which Touitou does not address on appeal -- we conclude that substantial evidence supports the court's finding that there was a likelihood Touitou would be in need of assisted living.^[10]

Touitou's criticism of the trial court's finding that partition would eliminate the strain of his relationship with Hentell is equally unavailing. Touitou contends that there was no strain in the relationship as long as Hentell and Touitou were not cohabiting -- something that was precluded by Hentell's deteriorating health, and now death. Touitou, however, testified that even with Hentell living elsewhere, his relationship with Hentell and her family made him feel like a "slave of this family." Thus, substantial evidence, in the form of Touitou's own testimony, supports the trial court's finding that partition and sale of the condominium will decrease the strain suffered by Touitou due to his ongoing connection to the Hentell family.^[11]

Finally, Touitou contends the trial court's finding that partition will afford him a substantial economic benefit is "erroneous," because the money he will receive is based on an estimate of his life expectancy that, if accurate, would result in "a mere wash for him." This contention is also without merit. Touitou ignores that in the trial court's view (a view that is supported by substantial evidence) the $161,880 in cash is more beneficial to Touitou than a life estate of equivalent value. The lump sum, unlike a life estate, allows Touitou to adjust his future living arrangement according to his changing needs -- while still allowing him to obtain an identical rental apartment in the same complex in which he now resides. Thus, the evidence supports the trial court's finding that partition would result in a substantial economic benefit to Touitou.^[12]

We also find it significant that apart from his few criticisms of the court's findings, which we have addressed, Touitou fails to cite any record evidence that partition is not in his best interest. On appeal, Touitou hints that moving from the condominium, even to an identical apartment in the same complex, will create a substantial burden on him, but he does not cite any evidence to support this contention. (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239 [arguments not supported by adequate citations to record need not be considered on appeal], citing Cal. Rules of Court, rule 14(a)(1)(C) ["any reference to a matter in the record" must be supported "by a citation to the . . . page number of the record where the matter appears"].) In fact, Touitou himself in his testimony before the trial court likened his present situation, which Touitou now contends on appeal is in his best interest, to living "like a dog in . . . jail."^[13]

Thus, given the trial court's considered findings that partition was in Touitou's best interest -- findings which we conclude are supported by substantial evidence -- and Touitou's inability to cite any evidence to the contrary, we must affirm the judgment. At most, Touitou's criticisms of the trial court's findings suggest "an opportunity for a difference of opinion." (In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 682 ["The showing on appeal is insufficient if it presents a state of facts which simply affords an opportunity for a difference of opinion"].) This is insufficient for reversal given the applicable standard of review. (Ibid.)

DISPOSITION

Affirmed.

IRION, J.

WE CONCUR:

NARES, Acting P. J.

HALLER, J.

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^[1] Ducia Hentell died during the pendency of these proceedings on January 21, 2006. On May 22, 2006, this court granted respondent's motion to substitute Michelle Thacher as successor trustee of the Trust.

^[2] All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

^[3] Touitou does not dispute this finding, acknowledging that "there is no dispute that partition would have benefited Hentell."

^[4] A real estate agent testified that the same model unit is available for rental in the complex for $1,600 per month. The testimony was not contradicted.

^[5] The trial court computed the value of the life estate by taking judicial notice of life expectancy tables published in the California Jury Instructions, Civil, Book of Approved Jury Instructions (BAJI) and multiplying Touitou's life expectancy (7.1 year) by the maximum rental value ($1,900 per month) of an identical unit in the same complex.

^[6] Section 872.710, subdivision (c) states in full: "Partition as to successive estates in the property shall be allowed if it is in the best interest of all the parties. The court shall consider whether the possessory interest has become unduly burdensome by reason of taxes or other charges, expense of ordinary or extraordinary repairs, character of the property and change in the character of the property since creation of the estates, circumstances under which the estates were created and change in the circumstances since creation of the estates, and all other factors that would be considered by a court of equity having in mind the intent of the creator of the successive estates and the interests and needs of the successive owners."

^[7] We assume, without deciding, that the statutory language that partition shall be granted if "it is in the best interest of all the parties" requires that partition be in the best interest of each of the parties as Touitou contends, and not merely in the parties' collective "best interest." (§ 872.710.)

^[8] As Touitou acknowledges, the trial court also appropriately considered the "circumstances under which the estates were created and change in the circumstances since creation of the estates . . . having in mind the intent of the creator of the successive estates and the interests and needs of the successive owners" as required by statute. (§ 872.710.) Touitou contends, however, that the "controlling factor is whether partition is in the best interest of all the parties," and this factor cannot be overcome by other considerations. (Emphasis in original.) We accept Touitou's contention, which is supported by the structure of the statute, for purposes of this appeal.

^[9] Touitou himself states that he is "in poor health" in his reply brief.

^[10] A pervasive failing of Touitou's challenges to the trial court's findings is his disregard of the appropriate standard of review. (Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372, 1387-1388 ["Arguments should be tailored according to the applicable standard of appellate review"].) Touitou fails to even mention the standard of review in his appellate briefs, much less tailor his argument to that standard.

^[11] While Touitou contends that his testimony "about feeling like . . . a slave w[as] limited to the time period during which he and Hentell both occupied the condominium," this contention is not supported by the record. Touitou repeatedly testified that he felt that way "still," for example stating, "I am still the slave of this family," and "I am unfortunately the last slave in this world" -- at a time when Hentell had not been living in the condominium with him for months. Thus, at most, the record creates some ambiguity on this point, ambiguity that we must resolve against Touitou given the standard of review. (Bickel, supra, 16 Cal.4th at p. 1053 [on appeal we must "view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor"].)

^[12] In addition, the trial court's economic calculations were favorable to Touitou, as the court picked the highest rental value supported by the evidence ($1,900 per month) and computed Touitou's life expectancy without taking into account his serious, preexisting medical conditions. (See BAJI No. 14.69 [standard jury instruction stating that life expectancy from BAJI table is "not conclusive," but is the "average life expectancy of persons who have reached that age" and "may be considered . . . in connection with other evidence relating to the probable life expectancy of [the individual], including evidence of . . . health"].) Rather than acknowledging this, Touitou contends in his reply brief that "he faces a substantial risk of economic harm (which will occur if he outlives his life expectancy)," but cites no evidence to support any contention that the trial court should have anticipated Touitou would live beyond his life expectancy.

^[13] The only factual evidence in Touitou's brief that would support a conclusion that Touitou is better off under the status quo is a passing comment that Touitou participates in a number of activities sponsored by the condominium association and uses the pool and library facilities there. As the trial court noted, however, Touitou will be able to rent an identical apartment in the same complex where he will have access to these same facilities. In his reply brief, Touitou also contends that partition will force him to "move while elderly and in poor health," but he cites no record evidence to support any suggestion that such a move will be so detrimental to his interest as to outweigh the other factors properly relied on by the trial court.