Filed 8/30/17 Villacorta v. Villacorta CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Geoffrey T. Glass, Judge. Affirmed.

Estella Villacorta, in pro. per., for Plaintiff and Appellant.

Kevin Singer, in pro. per., for Respondent.

* * *

Estella Villacorta sued for partition by sale of real property she owned jointly with Eugenie Villacorta.[1] The court appointed a referee, Kevin Singer, to oversee the sale of the property and distribution of the proceeds. When those tasks were completed, Singer filed a motion seeking court approval of his fees and costs. The trial court approved the request in part, but refused to award any fees and costs relating to Singer’s retention of an unlicensed contractor to perform repairs on the property.

Estella appeals from the order approving Singer’s fees and costs, arguing (1) the trial court abused its discretion in making the award; (2) the court erred by requiring defendant Dulce Villacorta to pay a portion of Singer’s fees; and (3) Singer committed perjury and fraud in the course of performing his duties as referee.

We affirm the order. Estella’s main contention is that Singer improperly hired an unlicensed contractor to perform repairs on the property. Her concern is well-taken, but as we have already noted, the trial court addressed it by deducting the fees and costs associated with those repairs from Singer’s award. Estella is entitled to no further relief.

And while Estella may not have anticipated Dulce would be held liable for paying a portion of Singer’s fees and costs, she lacks standing to challenge that order on appeal. Only Dulce, the party adversely affected by that aspect of the court’s order, has the right to challenge it. She has not done so.

Finally, Estella’s contention that Singer committed perjury and fraud is based primarily on her assertion he misrepresented the manner in which he would hold the funds realized from the property’s sale — placing them in his own trust account, rather than leaving them in the account of a licensed and insured title company pending further order of the court. However, Estella does not contend that the manner in which Singer held the funds was actually unreasonable, or that any funds entrusted to him were lost or dissipated as a result of his failure to leave them in the custody of a title company. Consequently, she has made no showing that the trial court abused its discretion by failing to reduce Singer’s fees on account of that alleged wrongdoing.

FACTS

In July 2014, Estella filed a complaint seeking the appointment of a referee to oversee a partition by sale of the property she owned jointly with her sister, Eugenie. She also named Dulce as a defendant because she held liens against the property.

The trial court appointed Singer to act as referee, “with full authority to manage and partition by sale the Property.” Singer was ordered to “execute and file a Referee’s oath of office, and file an undertaking or bond required by Code of Civil Procedure section 873.010(b)(1) in the amount of $10,000” before undertaking any duties.

Singer was also ordered to first have the property appraised “for the purpose of determining if a settlement [could] be reached. . . .” But if no settlement could be reached, Singer was ordered to take control of the property, and “manage [it] until such time as it is sold, or further order of this Court.”

The property was sold in May 2015. Shortly after the sale date, Dulce filed a motion for an order to show cause regarding possible misconduct by Singer. The motion cited a panoply of perceived problems with Singer’s conduct, one of which was the fact he had engaged an unlicensed contractor to perform work on the property, and had sought payment for that work from the property’s escrow account.

Singer filed opposition to Dulce’s motion, and in July 2015, he filed a motion for approval of his final accounting. Singer ultimately requested approval of fees totaling $51,961, plus expenses of $2,976.06. He acknowledged his prior receipt of $24,477.29 from the sale of the property and reported he was holding an additional $17,494.14 in proceeds from the sale in his trust account.

Over Estella’s opposition, the court largely approved Singer’s accounting. However, the court did not approve Singer’s retention of “M & M [Contractors] to perform repairs on the subject real property” and disallowed the “fees and costs related thereto.” Consequently, the court ordered that $5,717.59 be deducted from Singer’s requested total, and concluded he was entitled to recover $28,839.68 in additional fees and costs, “to be paid with the remaining $17,494.14 from the trust account, and Estella Villacorta, Dulce M. Villacorta and Eugenie M. Villacorta each to pay $3,781.84 to [Singer.]”

DISCUSSION

1. Alleged Abuse of Discretion

Code of Civil Procedure section 873.010 gives the trial court both the authority to appoint a referee to oversee an action for partition of property, and discretion to “[f]ix the reasonable compensation for the services of the referee and provide for payment of the referee’s reasonable expenses.” (Id., subd (b)(3).) Estella’s first contention is that the trial court abused its discretion in approving Singer’s accounting and awarding him fees and costs.

However, as Singer points out, “[t]he amount of fees awarded to a receiver is ‘in the sound discretion of the trial court and in the absence of a clear showing of an abuse of discretion, a reviewing court is not justified in setting aside an order fixing fees.’” (Melikian v. Aquila, LTD. (1998) 63 Cal.App.4th 1364, 1368.) Demonstrating that a trial court has abused its discretion in awarding fees is a particularly heavy burden for an appellant to bear: “‘Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered. The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.’” (Denham v. Superior Court (1970) 2 Cal.3d 557, 566, italics added.)

In this case, Estella’s primary complaint is that the trial court abused its discretion in awarding fees and costs to Singer because Singer hired an unlicensed contractor to do work on the property in preparation for its partition by sale. However, as we have already noted, the trial court agreed with her on that point, and as a consequence it deducted the fees and costs associated with the unlicensed contractor’s work — a total of over $5,000 — from the amount awarded to Singer. Awarding Singer the balance of his fees and costs, unrelated to his hiring of the unlicensed contractor, was not an abuse of the trial court’s discretion.

Estella does suggest the trial court erred because it failed to deduct all of Singer’s fees and costs associated with his hiring of the unlicensed contractor. Specifically, she claims, in conclusory fashion, that Singer acted unreasonably in “charging $9,960.38 in fees to defend his negligence during the Hearing to Show Cause in June 2015. . . .” (Italics added.) However, Singer’s hiring of the unlicensed contractor was only one of many complaints leveled against him in Dulce’s motion to show cause, and Estella has failed to demonstrate the extent to which the fees charged in connection with Singer’s opposition to the motion might have been responsive to that specific allegation. Consequently, Estella has failed to show the trial court abused its discretion by failing to deduct that unknown amount from Singer’s fees.

2. Apportionment of Fees to Dulce

Estella also contends the court erred by apportioning a share of Singer’s fees to Dulce because Dulce was not an owner of the partitioned property. However, Estella was not aggrieved by that aspect of the court’s ruling, and thus lacks standing to complain about it on appeal.[2]

“‘“A party who is not aggrieved by an order or judgment has no standing to attack it on appeal.” [Citation.]’ [Citation.] [¶] Injurious effect on another party is insufficient to give rise to appellate standing. A ‘party cannot assert error that injuriously affected only nonappealing coparties.’ [Citation.] This is ‘no mere technicality, but is grounded in the most basic notion of why courts entertain civil appeals. We are here to provide relief for appellants who have been wronged by trial court error. Our resources are limited and thus are not brought to bear when appellants have suffered no wrong but instead seek to advance the interests of others who have not themselves complained.’” (Conservatorship of Gregory D. (2013) 214 Cal.App.4th 62, 67-68.)

Dulce is the only party who was aggrieved by the order requiring her to pay a portion of Singer’s fees and costs, and she has not contested it in this appeal. Consequently, we cannot address it.

3. Alleged Fraud

Estella’s final contention is that Singer should be denied his fees and costs because he “committed perjury and fraud.” As Estella points out, in her appellate briefs, the trial court’s “Interlocutory Order” appointing Singer “stated [he] shall keep the proceeds of the sale [with] a licensed and insured Title Company until” further order of the court. In addition, the introductory letter Singer sent to her also promised that “[w]hen the successful buyer . . . closes the sale, the funds will be kept with a licensed and insured title company until such time as the Parties can stipulate to a division of the proceeds or a further order of the Court is issued.” However, despite those assurances, Estella claims Singer actually deposited funds received from the sale of the property into his own trust account, which amounted to perjury and fraud.

We reject this assertion. While it does appear Singer failed to comply with the specific requirement that he leave the proceeds from the sale of the property with the title company until further order of the court, Estella has not shown that he misused the funds in any way, nor that he failed to preserve them appropriately. Thus, Estella has made no showing that the trial court should have reduced Singer’s fees and costs to compensate for funds lost as a result of the alleged mishandling.

And to the extent Estella is suggesting Singer should have been sanctioned or otherwise penalized for this alleged mishandling of funds, she has made no showing that such sanctions or penalties were ever sought in the trial court. Consequently, we would treat that claim as forfeited. (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 863 [“Because [appellant] did not make this argument in the trial court, it is waived on appeal”].)

The mere fact Singer held funds from the sale of the property in his trust account, rather than in an account maintained by a title company, does not require the court to reduce his fee award, and Estella has not pointed to any other circumstances that suggest the trial court might have abused its discretion by failing to impose such a reduction in this case.

Finally, Estella suggests Singer made additional misrepresentations as to the total amount of fees and costs he had incurred, and that the amounts of fees and costs reflected on the monthly invoices he produced cannot not be fully reconciled with the totals he ultimately sought from the court. However, this factually intensive argument is not supported by any citations to the record, and thus it is waived. “‘The appellate court is not required to search the record on its own seeking error.’ [Citation.] Thus, ‘f a party fails to support an argument with the necessary citations to the record, . . . the argument [will be] deemed to have been waived.’” ([i]Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)

DISPOSITION

The order is affirmed. Singer is entitled to his costs on appeal.

IKOLA, J.

WE CONCUR:

ARONSON, ACTING P. J.

THOMPSON, J.