Filed 5/13/24 Via Appia v. OP Development CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

VIA APPIA, LLC,

 Plaintiff and Appellant,

 v.

OP DEVELOPMENT, INC. et al.,

 Defendants and Respondents.

F084595

(Super. Ct. No. 10684)

ORDER DENYING REHEARING 

AND MODIFYING OPINION

It is ordered that the opinion filed herein on April 18, 2024, be modified as 

follows:

1. On page 31, the second full paragraph beginning “Here we consider Via 

Appia’s” is deleted and the following paragraph inserted in its place:

Here we consider Via Appia’s argument that OPD “presented no 

evidence that a proportional division could not be made based on current 

usage and current market value.” First, to the extent the argument is based 

on “current usage” alone, it fails because current usage alone is not the 

correct legal basis for determining whether the property’s value can be 

equitably divided using partition in kind. Second, with respect to “current 

market value,” which in Via Appia’s view is derived from current usage and 

current status, we reject this view because, in the circumstances of this case, 

it is unduly restricted to future development based on current land use 

regulations. (See pt. VI.D., post.) Third, assuming Via Appia has taken 
2.

what we regard as the correct view of current market value—that is, a view 

in which the market takes into account the possibility the current land use 

regulations will be revised and expand the Property’s potential for 

development—then Via Appia’s argument fails because there is evidence in 

the record that would be difficult to create subparcels that proportionately 

allocate the Property’s value derived from potential future development. 

The evidence shows there are several factors making it difficult to predict 

how that development will be dispersed across the Property and what 

portions will increase in value most from the development. This 

uncertainty, in turn, means any division of the Property at this point would 

be unlikely to equitably apportion the aggregate current market value of the 

Property into a two-thirds and one-third share. Consequently, based on the 

record presented, we conclude a reasonable trier of fact could find OPD 

carried its burden of proving a partition by sale was more equitable than 

physically dividing the Property.

2. On page 33, the following section is added before the DISPOSITION:

IV. PETITION FOR REHEARING

Via Appia filed a petition for rehearing contending the original 

opinion contains two material omissions and four misstatements or 

mistakes of law. Via Appia also contends we created two theories that 

would justify a reversal with directions for entry of a judgment for partition 

in kind; Via Appia did not develop these theories; and, therefore, Via Appia 

did not have an opportunity to address the theories. To address this latter 

contention, we set forth some basic principles governing petitions for 

rehearing. 

A. Standard for Obtaining a Rehearing

Government Code section 68081 defines when a reviewing court is 

required to grant a rehearing petition: “Before the Supreme Court, a court 

of appeal, or the appellate division of a superior court renders a decision in 

a proceeding other than a summary denial of a petition for an extraordinary 

writ, based upon an issue which was not proposed or briefed by any party to 

the proceeding, the court shall afford the parties an opportunity to present 

their views on the matter through supplemental briefing. If the court fails 

to afford that opportunity, a rehearing shall be ordered upon timely petition 

of any party.” (Italics added.)

In People v. Alice (2007) 41 Cal.4th 668 (Alice), our Supreme Court 

explained the application of Government Code section 68081 and the 

meaning of the italicized statutory terms.
3.

“[Government Code s]ection 68081 does not require that a party 

actually have briefed an issue; it requires only that the party had the 

opportunity to do so. By requiring the parties to file opening and 

responding briefs, the California Rules of Court automatically give the 

parties the opportunity to brief every issue that is raised in the appeal. (Cal. 

Rules of Court, rule 8.200(a)(1).) Further, we hold that this also gives the 

parties the opportunity to brief any issues that are fairly included within the 

issues actually raised.” (Alice, supra, 41 Cal.4th at p. 677.)

Expanding on what it meant by an opportunity to brief an issue, the 

court stated that “the fact that a party does not address an issue, mode of 

analysis, or authority that is raised or fairly included within the issues 

raised does not implicate the protections of [Government Code] section 

68081.” (Alice, supra, 41 Cal.4th at p. 679.) Examples of issues fairly 

included within the appellant’s claims of trial court error are the proper 

standard of review and justiciability, which are present in every case. (Id. 

at p. 675 [standard of review]; Save Laurel Way v. City of Redwood City

(2017) 14 Cal.App.5th 1005, 1015, fn. 9 [justiciability]; see Church Mutual 

Ins. Co., S.I. v. GuideOne Specialty Mutual Ins. Co. (2021) 72 Cal.App.5th 

1042, 1055, fn. 2 [existence of agency relationship fairly encompassed in 

the main issue raised in the appeal].) Consequently, an issue is “proposed” 

for purposes of Government Code section 68081 when it is fairly included 

or encompassed in the broader issues raised in the appeal.

B. The Two Theories Were Fairly Included in the Issues Raised

Like issues relating to the standard of review and justiciability, we

conclude the issue of the type of appellate relief appropriate for a particular 

type of trial court error is present in every case. The types of relief that 

may be granted in appeals are addressed in two statutory provisions. 

Section 43 provides that a court of appeal “may affirm, reverse, or modify 

any judgment or order appealed from, and may direct the proper judgment 

or order to be entered, or direct a new trial or further proceedings to be 

had.” Section 906 defines the powers of a reviewing court in a similar way. 

On an appeal from a judgment, the reviewing court “may affirm, reverse or 

modify any judgment or order appealed from and may direct the proper 

judgment or order to be entered, and may, if necessary or proper, direct a 

new trial or further proceedings to be had.” (§ 906.) 

Based on the different types of appellate relief available, we 

conclude it is incumbent upon appellants to demonstrate why the relief they 

request is appropriate in the circumstances of their case. In short, not every 

trial court error that is shown to be prejudicial warrants entry of judgment 

in favor of the appellant. For example, in In re Marriage of Morton (2018) 
4.

27 Cal.App.5th 1025, this court concluded the trial court committed legal 

error in failing to make mandatory findings about the application of a 

Family Code attorney fees provision to the facts before it. (Id. at p. 1053.) 

We explicitly addressed how that error “affects the appellate relief granted 

by this court.” (Ibid.) We concluded the record compelled the findings 

specified in the statute and those findings made an award of attorney fees 

mandatory. As a result, we remanded for the trial court to determine the 

amount of the fees to be awarded. (Id. at p. 1054) 

Here, we conclude the two theories of trial court error identified in 

part III.C. of the opinion as justifying the relief sought by Via Appia were 

fairly included in the issues raised by Via Appia. Thus, for purposes of 

Government Code section 68081, the theories were “proposed,” and Via 

Appia was afforded an opportunity to address them in its opening and reply 

briefs. Indeed, the first theory that a purported finding about current use 

justified entry of a judgment for partition in kind was discussed by Via 

Appia. To the extent that Via Appia did not provide argument, authority 

and analysis demonstrating that its other claims of trial court error 

warranted the entry of a judgment for partition in kind, we conclude a 

rehearing with supplemental briefing is not required. 

C. The Absence of a Finding about the More Equitable Manner 

of Partition

Via Appia contends we did not address or resolve its argument that 

the trial court erred when it ordered a partition sale without making the 

statutorily required determination “that, under the circumstances, sale and 

division of the proceeds would be more equitable than division of the 

property.” (§ 872.820, subd. (b).) We disagree.

In part II.B.2., ante, we explained that the failure to provide a 

statement of decision is ordinarily remedied by remanding for the issuance 

of statement of decision, provided the judge who conducted the trial is 

available. Assuming the “more equitable” determination is an ultimate fact 

for which an explicit finding is required, the absence of such a finding in 

this case would be remedied in the same way—that is, remanding to the 

trial court to complete the process set forth in Rule 3.1590, which would 

result in a statement of decision containing the omitted finding on that 

ultimate fact. (See Hellman v. La Cumbre Golf & Country Club (1992) 6 

Cal.App.4th 1224, 1230 [in rendering a statement of decision, a trial court 

is required only to state its findings of ultimate, rather than evidentiary, 

facts].) Thus, Via Appia’s “argument that the trial court erred when it 

ordered partition [by] sale without making the statutorily required 

determination” was not discussed at length because the proper appellate 
5.

remedy for such an error was a remand for the issuance of a statement of 

decision pursuant to the process set forth in Rule 3.1590. (See pt. II.B.2., 

ante.) This explains why the claim of error based on an omitted finding 

was not included in the theories addressed in part III.C. of this opinion. 

Those theories of trial court error, if established, would require the entry of 

a judgment of partition in kind.

D. Role of Current Use and Current Status

Via Appia contends our decision is based “on stating that [Via 

Appia’s] position is that the property should be divided based on its current 

use for cattle grazing” and this characterization deprives it of “its argument 

that the property should be divided based on its present circumstances: rural 

undeveloped land now used for grazing.” First, we addressed “current use” 

in parts III.B. and III.C.2. because Via Appia’s opening brief employed that 

term in section E of its argument.

Second, we addressed what Via Appia called “current status,” which 

we interpreted as the Property’s current use and its development potential 

based on its current zoning and land use designations. We adopted this 

interpretation because it was the approach to value taken by Sattler, one of 

Via Appia’s expert witnesses. For clarification, we rephrase our earlier 

conclusions of law as including the principle that the concept of “value” 

used to determine which manner of partition is more equitable should not 

be limited to value based on potential development under current zoning 

and land use designations. “Value” for purposes of section 872.820 and the 

Butte Creek tests also should include the possibility that the land use 

restrictions will be modified to allow more intensive development in the

future. Although the evidence is conflicting, substantial evidence supports 

the finding that this possibility is not so remote as to justify its exclusion 

from the determination of “value” for purposes of the Butte Creek tests. 

The parties have cited, and we have located, no published decision 

that explicitly identifies the issue of whether the potential for development 

that affects the Property’s value must be limited to the development allowed 

under currently existing zoning and land use designations without regard 

for the possibility that those land use regulations could be modified. 

Therefore, our determination of this specific legal issue has not been

adopted or rejected in existing case law. Nonetheless, the parties have 

briefed the issue of the appropriate legal standard for determining the 

relevant “value” for applying the Butte Creek tests. 
6.

Except for the modifications set forth, the opinion previously filed remains 

unchanged. There is no change in the judgment.

Appellants’ petition for rehearing is denied.

FRANSON, J.

WE CONCUR:

LEVY, Acting P. J.

DE SANTOS, J.
Filed 4/18/24 Via Appia v. OP Development CA5 (unmodified opinion)

NOT TO BE PUBLISHED IN THE 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

FIFTH APPELLATE DISTRICT

VIA APPIA, LLC,

 Plaintiff and Appellant,

 v.

OP DEVELOPMENT, INC. et al.,

 Defendants and Respondents.

F084595

(Super. Ct. No. 10684)

OPINION

APPEAL from a judgment of the Superior Court of Mariposa County. Michael A. 

Fagalde, Judge.

The Ware Practice Group, Mindy Ware and James Ware for Plaintiff and 

Appellant.

Wanger Jones Helsley, Amanda G. Hebesha, Patrick D. Toole, John P. Kinsey, and 

Kathleen D. DeVaney for Defendants and Respondents. 

-ooOooVia Appia, LLC (Via Appia), owner of an undivided one-third interest in a 781.6-

acre parcel of grazing land located in Mariposa County, filed a partition action eventually 

requesting the parcel be physically divided between its two owners. After a bifurcated 
2.

court trial on the partition cause of action, the trial court entered an interlocutory 

judgment of partition by sale. Via Appia appealed, contending the court should have 

ordered a physical division of the parcel, which is the statutorily preferred manner of 

partition. (See Code Civ. Proc., §§ 872.810 [physical division], 872.820 [sale and 

division of proceeds].)1 

A threshold procedural issue is whether the trial court’s violations of section 632 

and California Rules of Court, rule 3.1590,

2

relating to statements of decision, prevent 

the doctrine of implied findings from being applied to the interlocutory judgment. The 

court violated those provisions by filing the judgment without announcing a tentative 

decision, without issuing or requiring the preparation of a proposed statement of decision 

or a proposed judgment, and without affording the parties an opportunity to object to the 

judgment before it was entered. We conclude the doctrine of implied findings does not 

apply because (1) the premature filing of the judgment prevented Via Appia from taking 

the procedural steps ordinarily required to avoid application of the doctrine and (2) Via 

Appia brought the violations to the attention of the trial court shortly after the judgment 

was filed.

On the merits, Via Appia contends this court should reverse the judgment of 

partition by sale and, instead of remanding for issuance of a proposed statement of 

decision, direct the entry of a judgment of partition in kind. By adopting this all-ornothing appellate strategy, Via Appia has abandoned the intermediate remedies of 

remanding for (1) further proceedings that comply with Rule 3.1590, (2) a 

reconsideration of the merits, or (3) a new trial. Thus, Via Appia has set itself the 

difficult task of demonstrating that, based on the appellate record, the only appropriate 

1 Undesignated statutory references are to the Code of Civil Procedure. 

2 Undesignated references to a numbered “Rule” are to the California Rules of 

Court. 
3.

outcome is partition in kind. Here, we consider two ways Via Appia could establish it is 

entitled to partition in kind. 

First, Via Appia could take the trial court’s explicit findings of fact and 

demonstrate that applicable rules of law require a partition in kind. In other words, Via 

Appia could show the trial court misapplied the law to the facts and, moreover, the facts 

found are sufficient to establish partition in kind is required. As explained below, we do 

not interpret the court’s discussion of a hypothetical situation where the land was to be 

used solely for grazing cattle to be a finding of fact. Furthermore, the findings actually 

made by the trial court do not require a partition in kind. 

Second, Via Appia could demonstrate that the other owner failed to carry its 

burden of proving “that, under the circumstances, sale and division of the proceeds would 

be more equitable than division of the property.” (§ 872.820, subd. (b).) If the evidence 

presented was such that no reasonable trier of fact could find division by sale was more 

equitable, then there would be no point in remanding for further proceedings. In that 

situation, the only appropriate outcome would be a judgment of partition in kind. Based 

on our review of the record, we conclude it contains substantial evidence that would 

support a finding that a sale is more equitable than physically dividing the parcel. As a 

result, Via Appia has not demonstrated that it is entitled to a judgment of partition in kind.

We therefore affirm the interlocutory judgment of partition.

FACTS

Appellant Via Appia is a California limited liability company formed in the early 

2000’s by Frank Berlogar and Pete Ruggeri. Berlogar is a managing member of the 

company. He obtained a degree in civil engineering in 1967, has practiced geotechnical 

engineering since, and has experience in real estate investment. Berlogar’s resume states 

he also has provided expert witness testimony and forensic investigations for dozens of 

residential, commercial, industrial and road projects. 
4.

Ruggeri received a degree in civil engineering in 1970. He worked for the 

Alameda County Flood Control and Water Conservation District until 1977, then worked 

for civil engineering firms until he started his own company in 1995. Ruggeri retired 

from that firm in 2014 and now does consulting and expert witness work. His resume 

states he has over 50 years of experience in civil engineering, land planning, land 

surveying, and right-of-way engineering and he specialized in public works and land 

development projects. During oral argument, counsel for Via Appia confirmed that 

Berlogar and Ruggeri are still Via Appia’s two principals, correcting the failure to 

identify any owner in its initial and supplemental certificates of interested entities or 

persons. (See Rule 8.208 [certificate of interested entities or persons].) 

In 2005, Via Appia acquired an undivided one-third interest in a 781.6-acre parcel 

located at 5877 Highway 49 North in Mariposa (APN 012-120-007) and commonly 

known as the Princeton Ranch (the Property). The Property is irregularly shaped and the 

northern most part of its western boundary abuts Highway 49 across from the MariposaYosemite Airport. Via Appia paid $1,777,000 for its one-third interest in the Property, 

which is nearly $2,300 per acre. Berlogar and Ruggeri felt the Property had development 

potential and they intended to enhance its value by obtaining entitlements before selling it 

to a buyer who would undertake the physical development of the Property. 

Later in 2005, respondent OP Development, Inc. (OPD) acquired the remaining 

two-thirds interest in the Property and a 100 percent interest in an adjacent 200-acre 

parcel (APN 012-140-013). The president of OPD, respondent Gregory J. Opinski, is a 

general contractor and land developer. Opinski testified the purchase price per acre for 

the Property was around $6,500. OPD’s response to an interrogatory stated it paid 

$4,825,000 for its two-thirds interest in the Property and its full interest in the adjacent 

200 acres, and the purchase price was not split between the two parcels. 
5.

The Property’s primary use before 2005 and at all times during this litigation has 

been cattle grazing. At the time of trial, a rancher was paying $10 per acre per year to 

rent the Property. 

In the 1990’s, previous owners of the Property proposed a development called Las 

Mariposas that included an 18-hole golf course, club house, hotel, commercial space, and 

residential housing. A final environmental impact report (EIR) dated May 29, 1994, was 

prepared for the project. The project received the support of the county planning 

commission, but was voted down by the board of supervisors.

3

 

The Property’s topography and other physical characteristics need not be set forth 

in detail in this unpublished opinion because the parties and their attorneys are acquainted 

with those facts. The Property’s current land use restrictions play a role in the parties’ 

arguments on appeal and, therefore, we provide a brief overview of those restrictions. 

The Mariposa County General Plan designates the Property’s land for residential land use 

and natural resources land use. The Property has five different types of zoning—

mountain general, mountain home, rural residential and town planning area along with an 

airport overlay. Sarah Williams, the county’s planning director since 2012, testified a 

town planning area is a location in the county that the board of supervisors has 

determined is appropriate for commercial, light industrial, and all levels of housing 

development, including high-density housing. She also explained that the general plan 

adopted in 2006 is more restrictive than the zoning and allows parcels only as small as 

five acres on the portions of the Property zoned town planning area, rural residential, and 

mountain home. The mountain general designation allows one unit per 40 acres. With 

respect to future development, Williams testified that in her opinion there is a need for 

high-density housing in Mariposa County; that the Property is suitable for the 

3 The final EIR is a source of information about the Property, its surroundings, and 

applicable land use and zoning designations that appraisers and experts in this case have 

reviewed.
6.

development of high-density housing, but significant entitlements and permitting would 

need to be completed to enable construction of high-density housing on the site; and that 

the county would be supportive of that kind of development. 

The parties attempted to sell the Property before this litigation began. In 2010, 

after the economic downturn of 2008, the parties jointly listed the Property for sale with 

an asking price of approximately $10 million (over $12,000 per acre). They believed 

listing it for sale jointly would result in a higher sale price than separately listing their 

fractional interests. No offers were received. 

In January 2015, Via Appia and OPD agreed to jointly list the Property for sale at 

$19.65 million (approximately $25,000 per acre) and signed an exclusive representation 

agreement with a broker, Marcus & Millichap Real Estate Investment Services. The 

parties concurrently agreed to restart efforts to obtain entitlements and engaged 

consultants to work on that process. 

The attempted sale of the Property was affected by Opinski’s divorce proceeding. 

Opinski testified that his ex-wife filed a motion asserting he did not have the authority to 

sell certain properties and, as a result, he asked Marcus & Millichap to pull the Property 

off the market for a short time. Opinski testified that after the judge handling the divorce 

proceeding heard his wife’s motion, the Property was relisted. Opinski also testified he 

thought it was true that in May 2015, he told Marcus & Millichap that he would not 

respond to written offers on the Property due to his divorce. Additional issues relating to 

the Property arose, which caused the parties’ working relationship to deteriorate. This 

litigation started shortly thereafter. 

PROCEEDINGS

Via Appia filed a complaint for partition of real property against OPD, the State of 

California, and three utility companies in August 2015. Via Appia alleged that partition 

by sale would be more equitable than division in kind. On information and belief, Via 

Appia also alleged “that the cost and expense to partition the Property in kind outweighs 
7.

the advantages of completing such a division, division of the property may dramatically 

decrease the value of the Property and will require the involvement of third parties in 

order to complete a proper division.” 

Via Appia filed a first amended complaint 40 days later. The main modification 

changed the relief requested to partition in kind. During the trial, Berlogar testified that 

when the action was filed, it was not his intention to seek a sale of the property. He 

stated: “At the time I thought partition was partition. There would be some division of 

the land and Opinski would get some and we would get some.” Similarly, Ruggeri 

testified it was never his intention to seek a forced sale of the property through the courts. 

In March 2019, Via Appia filed a third amended complaint, which is the operative 

pleading in this appeal. That pleading’s first cause of action requested partition of the 

Property in kind and alleged there was no compelling reason or extraordinary 

circumstances that would prevent the Property from being physically divided and 

apportioned between the parties. The third amended complaint also alleged causes of 

action against OPD and Opinski for breach of a de facto partnership agreement, breach of 

fiduciary duty, breach of implied in fact contract, fraud by concealment, intentional 

interference with contract, intentional interference with prospective business advantage, 

an accounting, and monies due and owing. 

The answer of ODP and Opinski alleged partition by sale was the more 

appropriate and equitable method of partition because the Property could not be divided 

into subparcels of equal value. It also alleged division would substantially diminish the 

value of each parties’ interest. 

The parties agreed to bifurcation with the partition cause of action being tried to 

the court and the remaining claims being tried after the partition issue was resolved. In 

December 2021, the parties filed their trial briefs for the first phase. 
8.

Trial Briefs

In its trial brief, OPD argued partition by sale was more equitable because (1) the 

Property could not be equally divided in kind and (2) division in kind would substantially 

diminish the value of each party’s interest. OPD stipulated to “Via Appia’s expert’s 

opinion of the current value [of] the property at One Million and Eight Hundred 

Thousand Dollars ($1,800,000.00) or Two Thousand and Three Hundred Dollars 

($2,300.00) per acre.” OPD also stipulated to purchasing Via Appia’s one-third interest 

using that value, but expected its offer to “be rejected, because both parties ultimately 

agree the true worth of the subject property lies in future development.” 

Via Appia’s trial brief argued a forced sale of the Property would be inequitable 

and OPD could not meet its burden of proving that a division into subparts of equal value 

could not be made or that a division would substantially diminish each party’s interest. 

Via Appia asserted the Property’s highest and best use was as grazing land, development 

under existing zoning was speculative, and future development outside of existing zoning 

was completely speculative and should not be considered. Via Appia stated its experts 

would present one of many possible ways to equitably divide the Property and asserted 

the proposed division was justified not only under the current and best use of the 

Property, but also took into account current zoning and the purported constraints raised 

by OPD. The proposed division in kind involved Via Appia receiving 35 lots of 5 acres 

and OPD receiving 22 lots of 5 acres and 11 lots of 40 acres. Under its proposal, Via 

Appia would receive 100 percent of the land impacted by airport zoning and 37.3 percent 

of land impacted by cultural sites. Via Appia stated it did “not believe these development 

‘constraints’ have an actual effect on development within the existing zoning, [and] even 

if they did, it’s a fair allocation.” 

To summarize, the parties’ trial briefs show they agreed on the appraised value of 

the Property. The main difference in their approaches related to the potential future 
9.

development of the Property in deciding if there was a way to equitably divide the 

Property into proportionate subparcels. 

The Trial

The trial on the partition cause of action began on December 7, 2021, took six 

days, and concluded in January 2022. Via Appia presented the testimony of a retained 

expert, Warren Sattler, to address whether the Property could be partitioned in kind into 

parcels of proportionate value and to explain why his proposal, which was described in 

Via Appia’s trial brief, was an equitable partitioning in kind. Sattler’s proposal had 221 

acres being allocated to Via Appia, which was less than one-third of the size but, in 

Sattler’s opinion, reflected one-third of the Property’s value. Sattler stated there were a 

number of ways the Property could be partitioned, and his proposal was not the only way. 

Touching on the primary difference in the parties’ approaches, Sattler stated that in 

splitting the Property into two parcels, “the only way you are going to do that is to look at 

what it currently is used for regardless of the intent of the ownership. That is purely 

speculative and may be ill conceived, because there’s no demand for any sort of 

substantial development.” Sattler agreed with an appraiser’s opinion that “the maximum 

productive use at the present time is to continue the current use because of the economics 

and limited demand for new development in the area” and that the highest and best use of 

the land was for investment purposes. Sattler testified he did consider some possibilities 

of development but that was done by staying within what was allowed under the general 

plan. 

Posttrial Briefs

In March 2022, the parties filed posttrial briefs followed by reply briefs. The 

briefing reflected the parties’ dispute about the role of potential future development in 

applying the tests for whether partition by sale would satisfy the statutory requirement 

that a sale “be more equitable than division of the property.” (§ 872.820, subd. (b).) Via 

Appia argued that in applying the test addressing whether it was possible to divide the 
10.

Property into subparcels of proportionate value, the correct legal standard was the 

Property’s immediate value “compared to an immediate sale of the Property as it is 

today.” Via Appia also argued the $1.8 million appraised value was the only number the 

court could considered in applying the test addressing whether there would be a 

substantial diminution in value if the Property was split. Via Appia reiterated its 

arguments that OPD’s approach to value was flawed because it relied on speculation 

about potential future development—development Via Appia asserted was speculative 

even under existing zoning. 

OPD’s briefing argued the value to be considered in deciding whether partition by 

sale was more equitable than physical division must include the Property’s development 

potential, which was why the parties bought the Property in the first place. OPD asserted 

the Property’s physical characteristics and configuration made an equal division 

impossible and any division would create significant barriers to its development of the 

subparcels it received in a partition in kind. 

Interlocutory Judgment

On May 9, 2022, the trial court filed an interlocutory “Judgment on Partition 

Action” (boldface omitted). Before filing the judgment, the trial court did not announce a 

tentative decision or issue a proposed statement of decision or a proposed judgment. The 

judgment is five pages long and, in practical effect, is a combination of a statement of the 

court’s rationale followed by the terms of the judgment. The document contained four 

headings—Introduction, Jurisdiction Issue, Partition, and Judgment 

The introduction identified the Property and the parties and described the 

acquisition of their interests in the Property and the events leading to the partition action. 

It included the trial court’s finding that Opinski had the Property appraised three times 

from 2015 to 2021. In May 2015, Thomas Wilkins appraised the Property and the 

adjacent 200 acres owned by OPD and concluded the then market value of the land was 

$2,037 per acre. Based on that per acre value, the Property was worth approximately 
11.

$1.59 million. In 2017, James Cogdill appraised the Property and the 200-acre parcel in 

connection with Opinski’s pending dissolution proceedings. Codgill concluded the 

Property was worth $2,000 per acre for a total value of approximately $1.54 million. In 

April 2021, Gregg Palmer appraised the Property at approximately $1.76 million, or 

about $2,250 per acre. Each appraisal estimated the Property’s total value was less than 

what Via Appia paid for its one-third interest in 2005. 

Under the “Partition” heading, the court began by noting neither party had 

undertaken any substantive acts to formally begin the development process, such as 

submitting a preapplication to the county planning department. The court addressed the 

parties’ purpose or intent by finding “that each party purchased their interests in the 

property at amounts substantially above the value of the property as grazing land, and 

with the specific goal of future development of the property. The parties are not 

cattlemen, they are developers.”4 Next, the court set forth its analysis and findings 

relating to which type of partition was appropriate. The court described applicable law 

by stating:

“The parties are in agreement as to the law of partition and each

relies on the seminal case of Butte Creek Island Ranch v. Crim (198[2]) 

1[36] Cal.App.3d 360. Under Butte Creek the party seeking partition by 

sale bears the burden of proving that a sale would be more equitable than 

partition in kind and must meet one of two tests. A partition by sale is 

justified either if (1) the property cannot be divided into subparcels of equal 

value; or (2) that division of the land would substantially diminish the value 

of each party’s interest.” 

4 We interpret the court’s use of the terms “development” and “developers” broadly 

to include the process of obtaining the entitlements necessary before construction of 

roads, other infrastructure, and buildings could begin. Used in that sense, the court did 

not commit a factual error by finding Via Appia purchased its interest with the goal of 

future development—that is, obtaining entitlements that would increase the Property’s 

value. 
12.

The trial court then set forth a hypothetical situation where partition in kind would 

be easy. That hypothetical is discussed in part III.A., below. The court found each party 

purchased the land with future development in mind and paid substantially more than its 

value as grazing land; the parties had presented nothing formal to the County of Mariposa 

for the Property’s development; and the Property was in line for future development but 

there were many governmental hurdles to overcome, including amending the county’s 

general plan, rezoning, and extending basic services such as fire protection, water, and 

sewer. Also, a few acres of the Property are included in an airport exclusion zone and 

construction limitations apply to areas in the airport’s flight path. A portion of the 

Property is separated from a landfill by a narrow strip of land and the development of 

housing on that portion might be incompatible with the odors, noise and dust generated 

by the landfill. The Property’s development also is affected by the availability of water; 

the existence of cultural sites; the preservation of natural areas containing heritage oaks, 

seasonal streams, and a pond; variations in terrain from relatively flat to relatively hilly; 

and direct access to Highway 49. 

The trial court noted Via Appia’s arguments that the Property’s lack of uniformity 

was not a bar to partition in kind and that OPD’s reliance on value based on future 

development plans was too speculative to be considered in determining whether the 

Property could be divided into subparcels of equal (i.e., proportionate) value. The court 

ended its discussion under the “Partition” heading by stating:

“This Court finds the sole intent of the parties in purchasing their 

interests in this property was to develop the property. Therefore, it is 

impossible at this time for the Court to say the property can be split into 

subparcels of equal value for future development purposes because there 

are too many variables for the court to determine what the current value of 

the property is for that purpose. For that same reason, the Court cannot find 

that partition by sale would substantially dim[in]ish the value of each 

party’s interest in their respective shares.” 
13.

The terms of the judgment provided: “The request for partition in kind is denied 

and partition by sale is ordered. [¶] Pursuant to Code of Civil Procedure section 

872.820, it is ordered that the property be sold, and the proceeds be divided among the 

parties in accordance with their respective interests.” The judgment also stated the trial 

court would order the appointment of a referee to advise it whether the Property should 

be sold at public auction or private sale and the terms of any such sale. It also directed 

the parties to meet and confer to see if they could agree on who would be appointed as 

the referee. 

Postjudgment Proceedings

A week after filing the judgment, the trial court held a trial setting conference for 

the second phase of the bifurcated trial. Proceedings at the conference are relevant to the 

procedural issues raised in this appeal. Those proceedings, along with Via Appia’s 

subsequently filed request for statement of decision and objection to the interlocutory 

judgment, are described later in this opinion. 

In July 2022, Via Appia filed a timely appeal. An interlocutory judgment in an 

action for partition is appealable. (§ 904.1, subd. (a)(9).) 

DISCUSSION

I. PARTITION LAW

Partition is a procedure for segregating and terminating common interests in a 

parcel, which allows cotenants to avoid the inconvenience and dissension that may arise 

from joint possession of land. (Cummings v. Dessel (2017) 13 Cal.App.5th 589, 596 

(Cummings).) In 1975, the California Law Revision Commission recommended 

legislation to reorganize, revise, and modernize California’s partition statute. 

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

Law Revision Com. Rep. (1975) p. 411 (1975 Recommendation).) In 1976, the 

Legislature enacted chapters one through nine of title 10.5 of part 2 of the Code of Civil 
14.

Procedure (Title 10.5). (Stats. 1976, ch. 73, § 6, pp. 111–129.) Those provisions, 

sections 872.010 through 874.240, governed actions for partition of real property and 

some actions for partition of personal property. (§ 872.020 [scope of title].)5 Despite the 

statutory nature of an action for partition, “ ‘it is nonetheless an equitable proceeding.’ ” 

(Cummings, supra, at pp. 596–597.) 

The statute authorizes any co-owner of real property to bring an action for 

partition. (§ 872.210; Cummings, supra, at p. 596.) Here, Via Appia and OPD are coowners of the Property and, thus, Via Appia is entitled to partition.

A. Manner of Partition—Physical Division and Sale

When a court determines a plaintiff is entitled to partition, the court “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), italics added.) Here, the parties dispute the manner of 

partition—that is, “whether the property should be physically divided or sold.” (4 Miller 

& Starr, California Real Estate (2023 4th ed.) § 11:15, p. 11-40 (Miller & Starr).)

Physical division of property is addressed in section 872.810, which states in full: 

“The court shall order that the property be divided among the parties in accordance with 

their interests in the property as determined in the interlocutory judgment.” The Law 

Revision Commission comment to this section states it continues the preference for 

division in kind and notes that, in appropriate cases, a court may order partition by sale or 

by appraisal. (1975 Recommendation, supra, at p. 439.) 

5

In 2021, the Legislature added a tenth chapter, then known as the Uniform 

Partition of Heirs Property Act. (Stats. 2021, ch. 119, § 2; see former § 874.311.) In 

2022, that chapter was amended to expand its scope to any real property held in tenancy 

in common where the partition of the property was not governed by a recorded agreement 

binding all cotenants. (Stats. 2022, ch. 82, §§ 3–12.) The tenth chapter is now known as 

the Partition of Real Property Act and it “applies to actions for partition of real property 

filed on or after January 1, 2023.” (§ 874.311, subds. (a), (c).) Thus, the Partition of Real 

Property Act does not apply to Via Appia’s partition cause of action. 
15.

Division by sale is addressed in section 872.820, which provides in pertinent part: 

“Notwithstanding Section 872.810, the court shall order that the property be sold and the 

proceeds be divided among the parties in accordance with their interests in the property 

as determined in the interlocutory judgment in the following situations: [¶] ... [¶] (b) 

The court determines that, under the circumstances, sale and division of the proceeds 

would be more equitable than division of the property. For the purpose of making the 

determination, the court may appoint a referee and take into account his report.” Under 

this provision, partition by sale with a division of the proceeds is an exception to the 

general rule that prefers partition in kind. (1975 Recommendation, supra, at p. 440.) 

Also, “[s]ubdivision (b) changes the standard for allowing a sale of the property from 

‘great prejudice’ to ‘more equitable,’ thereby enabling sale is cases in which it previously 

was precluded.” (1975 Recommendation, supra, at p. 440.)6

Under sections 872.810 and 872.820, it is presumed that it is more equitable to 

divide the property physically and distribute a portion to each cotenant. (Butte Creek 

Island Ranch v. Crim, supra, 136 Cal.App.3d 360, 365 (Butte Creek); Miller & Starr, 

supra, § 11:17, p. 11-43.) The presumption is a rebuttable presumption affecting the 

burden of proof. (See Evid. Code, §§ 601 [classification of presumptions], 605 

[presumption affecting the burden of proof defined].) Thus, the party who seeks a sale, 

rather than a physical division, has the burden of proving that a sale is “more equitable 

than division of the property” as that phrase is used in section 872.820, subdivision (b). 

(Butte Creek, supra, at p. 366; Miller & Starr, supra, § 11:17, p. 11-43; see Evid. Code, 

§ 606 [effect of presumption affecting the burden of proof].)

In Butte Creek, the plaintiff and the defendant each owned an undivided one-half 

interest in the land, the plaintiff filed a partition action, and the trial court ordered a 

6 Thus, the arguments in Via Appia’s opening brief that incorporate the great 

prejudice standard do not accurately reflect current law. 
16.

partition of the land by sale with a division of the proceeds. (Butte Creek, supra, 136 

Cal.App.3d at p. 361.) The defendant appealed, contending the land should have been 

divided in kind. (Ibid.) The appellate court identified two types of evidence that would 

prove partition by sale was more equitable, determined the plaintiff did not present 

evidence under either test, reversed the judgment for partition by sale, and remanded the 

case to the trial court with directions to divide the property in kind. (Butte Creek, supra, 

136 Cal.App.3d at pp. 367–369.)

Under Butte Creek’s first test, a party may carry the burden of proving a sale of the 

property is more equitable by presenting evidence sufficient to show “that the property is 

so situated that a division into subparcels of equal value cannot be made.” (Butte Creek, 

supra, 136 Cal.App.3d at p. 366.) Stated another way, “the party desiring the sale must 

show that the land cannot be divided equally.”7 (Ibid.) Evidence that the land is not 

fungible or uniform in character is not sufficient to meet this test. (Ibid.) The test is met, 

for example, if most of the land’s value is derived from a water well and any subparcel 

without the well would be a little value. (Ibid.) In such circumstances, a division into 

subparcels of equal value cannot be made. (Ibid.) The test also is met by a small inside 

lot that contains structures located in such a way as to preclude an equal division. (Ibid.) 

Under the second test described in Butte Creek, the party seeking partition by sale 

may carry its burden of proof by showing that, “due to the particular situation of the land, 

the division of the land would substantially diminish the value of each party’s interest.” 

(Butte Creek, supra, 136 Cal.App.3d at p. 367.) This test considers “whether a partition 

7 The statutes refer to division of the property or proceeds “among the parties in 

accordance with their interests in the property.” (§§ 872.810, 872.820.) Thus, Butte 

Creek’s use of the phrases “subparcels of equal value” and “divided equally” was 

appropriate under the facts because each party owned a one-half interest in the land. 

Where, as in this case, the ownership interests are unequal, the appropriate phrases would 

be subparcels of proportionate value and divided proportionately. Stated another way, 

the phrase “subparcels of equal value” means subparcels of value equal to each party’s 

interest in the property. (§§ 872.810, 872.820.) 
17.

in kind would result in a cotenant receiving a portion of the land which would be worth 

materially less than the share of the money which could be obtained through sale of the 

land as a whole. [Citation.] This is a purely economic test.” (Ibid.) The second test was 

satisfied in a case involving a 17.4-acre movie studio “developed in such a unique 

manner that physical division would result in damage to the aggregate value of the land 

in the amount of $1.5 million.” (Ibid., citing Formosa Corp. v. Rogers (1951) 108 

Cal.App.2d 397, 402.) 

B. Standard of Review

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

abuse of discretion. (Cummings, supra, 13 Cal.App.5th at p. 597.) The parties agree that 

the abuse of discretion standard applies; they also recognize that more specific standards 

may apply to particular questions under review. Their approach is consistent with the 

principles set forth by our Supreme Court in Haraguchi v. Superior Court (2008) 43 

Cal.4th 706: 

“The abuse of discretion standard is not a unified standard; the deference it 

calls for varies according to the aspect of a trial court’s ruling under review. 

The trial court’s findings of fact are reviewed for substantial evidence, its 

conclusions of law are reviewed de novo, and its application of the law to 

the facts is reversible only if arbitrary and capricious.” (Id. at pp. 711–

712.) 

Here, we conclude these general principles about the abuse of discretion standard 

of review also apply to an appellate court’s evaluation of whether a trial court committed 

an abuse of discretion in rendering an interlocutory judgment of partition. (See 
18.

Cummings, supra, 13 Cal.App.5th at p. 597 [an error of law or an arbitrary and capricious 

application of law to facts both constitute an abuse of discretion].)8

II. PROCEDURAL ISSUES 

Here, we explain how the trial court violated section 632 and Rule 3.1590 when it 

prematurely filed the interlocutory judgment. We conclude those violations prevent the 

doctrine of implied findings from being applied to the judgment. We also describe Via 

Appia’s appellate strategy of not seeking the usual remedy for such violations—namely, a 

remand to comply with the procedures set forth in Rule 3.1590.

A. Postjudgment Proceedings

The interlocutory judgment of partition was filed on May 9, 2022. A week later, 

the trial court held a trial setting conference. Counsel appeared using Zoom. Near the 

beginning of the conference, counsel for Via Appia stated that he had anticipated a 

tentative decision under California Rules of Court, rule 3.1590(a), and described the 

rule’s steps governing the issuance of a tentative decision, a request for a statement of 

decision, objections to a statement of decision, issuance of a proposed judgment, and 

objections to the proposed judgment. Counsel also stated that he understood the court 

was skipping those steps and entering judgment. The trial court replied: “That’s where 

I’m at, yes.” The court also stated that “if you have any formal request, I just ask that 

you go and file those.” Counsel then stated that (1) because there was no tentative 

8 The Fifth District has applied these principles defining the abuse of discretion 

standard in many other contexts. (E.g., Tulare Lake Canal Company v. Stratford Public 

Utility Dist. (2023) 92 Cal.App.5th 380, 402 [denial of preliminary injunction]; Vosburg

v. County of Fresno (2020) 54 Cal.App.5th 439, 460 [award of attorney fees under 

§ 1021.5]; In re Marriage of Hein (2020) 52 Cal.App.5th 519, 529 [award of child 

support]; Hance v. Super Store Industries (2020) 44 Cal.App.5th 676, 683 [award of 

attorney fees after settlement of a class action]; County of Kern v. T.C.E.F., Inc. (2016) 

246 Cal.App.4th 301, 316 [grant of preliminary injunction]; Protect Agricultural Land v. 

Stanislaus County Local Agency Formation Com. (2014) 223 Cal.App.4th 550, 561 

[affirming dismissal of reverse validation cause of action based on a failure to comply 

with procedures in § 863].) 
19.

decision, he did not think he was subject to a 10-day deadline; (2) he wanted to make 

clear on the record he was “requesting the opportunity”; (3) he understood the court was 

going straight to a judgment; and (4) “[t]he only thing we would have left, then, is 

whether the clients want to file a notice of appeal.” The court replied: “Right. And 

that’s where I’m at. In my belief, that’s a final judgment.” 

Three days later (10 days after the judgment was filed), Via Appia filed a request 

for statement of decision and objection to the interlocutory judgment. The request 

described the exchange between counsel and the trial court at the trial setting conference 

and then stated:

“In an abundance of caution and to further preserve the record on appeal 

and avoid prejudice and presumed factual findings, [Via Appia] again 

requests that the Court follow procedures set forth in California Rule of 

Court 3.1590 and Code of Civil Procedure § 632 regarding issuance of a 

Tentative Decision and formally requests a Statement of Decision with 

regard to, without limitation, the following controverted issues. Because 

the Court has not issued a Tentative Decision, [Via Appia] has not had the 

opportunity to request a Statement of Decision and no Proposed Statement 

of Decision or a Proposed Judgment was issued to which [Via Appia] could 

object.” 

Via Appia’s objections asserted the trial court did not find whether OPD had met 

its burden under either of the tests described in Butte Creek and, more specifically, 

asserted the court “made no findings as to whether [ODP] had met [its] burden to prove 

via admissible evidence that a division of the property would cause what each party 

received to be worth less than what they would receive in the sale of the property as a 

whole, or that a division of the property could not be made into subparcels of equal 

value.” The objections also asserted substantial evidence was submitted to the trial court

demonstrating various facts. For example, Via Appia asserted the evidence demonstrated 

a division of the Property would not decrease the value of what the parties would receive 

compared to a sale of the Property as a whole and, in fact, undisputed evidence “showed 
20.

that the value of the property would increase if it was split into subparcels of equal 

proportionate (one-third/two-thirds) value.” 

In the last paragraph of the request, Via Appia objected to the premature entry of 

judgment and asked the trial court to withdraw the judgment and serve a tentative 

decision or proposed statement of decision with a proposed judgment to afford Via Appia 

the opportunity to request a statement of decision or object to the proposals. The court 

did not respond to the request filed by Via Appia. 

B. Process for Rendering a Decision after a Court Trial

1. Violation of Procedure

Section 632 provides that, upon the trial of a question of fact by a superior court, 

“[t]he court shall issue a statement of decision explaining the factual and legal basis for 

its decision as to each of the principal controverted issues at trial upon the request of any 

party appearing at the trial.” When, as in this case, the court trial takes more than eight 

hours over multiple days, “[t]he request must be made within 10 days after the court 

announces a tentative decision.” (§ 632.) These statutory provisions imply that the 

superior court is obligated to announce a tentative decision after a court trial that lasts 

more than eight hours over multiple days. 

This implication is made explicit in the court rules. “On the trial of a question of 

fact by the court, the court must announce its tentative decision by an oral statement, 

entered in the minutes, or by a written statement filed with the clerk.” (Rule 3.1590(a), 

italics added.) Similarly, “[w]hen a factual issue raised by the pleadings is tried by the 

court separately and before the trial of other issues, the judge conducting the separate trial 

must announce the tentative decision on the issue so tried and must, when requested 

under Code of Civil Procedure section 632, issue a statement of decision as prescribed in 

rule 3.1590.” (Rule 3.1591(a).) “Must” appears in both rules and is mandatory. (Rule 

1.5(b)(1).) Consequently, we interpret the Rules to mean the trial court had a mandatory 
21.

obligation to announce a tentative decision in this case. The trial court violated that 

obligation and, as a result, subsequent procedural steps were not completed before the 

court signed and filed the judgment. (See Rule 3.1590(l) [signature and filing of 

judgment].) For instance, the court did not order OPD to prepare a proposed statement of 

decision and a proposed judgment (Rule 3.1590(f)) and “the court [did not] prepare and 

serve a proposed judgment on all parties” (Rule 3.1590(h)).

2. Consequences of the Violations

Next, we consider the consequences of the trial court’s violations of section 632

and Rules 3.1590 and 3.1591. Those provisions presume that courts will announce a 

tentative decision and, as a result, do not specify a procedure for addressing failures to 

comply. Here, the failure to announce a tentative decision precluded Via Appia from 

completing the second step in Rule 3.1590’s procedures—namely, requesting a statement 

of decision “[w]ithin 10 days after the announcement or service of the tentative decision.” 

(Rule 3.1590(d).) Thus, the court’s premature filing of a judgment prevented Via Appia 

from timely requesting a statement of decision, not any act or omission by Via Appia. 

Consequently, we reject OPD’s argument that Via Appia waived or forfeited the 

protections of Rule 3.1590 by failing to timely request a statement of decision.

Ordinarily, the failure to provide a statement of decision does not require a new 

trial. “Rather, the case is simply remanded with instructions to the trial court to issue a 

proper statement of decision.” (Fairbank, et al., Cal. Practice Guide: Civil Trials and 

Evidence (The Rutter Group 2023) ¶ 16:201, p. 16-47, citing Karlsen v. Superior Court

(2006) 139 Cal.App.4th 1526, 1531; see Gordon v. Wolfe (1986) 179 Cal.App.3d 162, 

168 [“the judgment is reversed and remanded with directions to trial court to prepare a 

statement of decision”].) An exception exists for cases where the judge who presided 

over the trial is not available. In those situations, no other judge can render a decision on 
22.

the evidence presented at trial and, therefore, the matter must be retried. (Karlsen, supra, 

at p. 1531.)

Here, Via Appia has not requested the matter be remanded for (1) the completion 

of the process set forth in Rule 3.1590 or (2) a new trial. Instead, Via Appia has 

requested reversal of the judgment of partition by sale and a remand of the case to the 

trial court with directions to grant partition in kind. Before we analyze whether Via 

Appia has demonstrated it is entitled to the entry of judgment in its favor, we address the 

parties’ dispute about whether this court must apply the doctrine of implied findings in 

conducting its review of the merits. 

3. Doctrine of Implied Findings

The fundamental principles of appellate practice provide that (1) appellate courts 

presume the trial court’s judgment is correct; (2) all intendments and presumptions are 

indulged to support the judgment on matters as to which the record is silent; and (3) the 

appellant bears the burden of affirmatively demonstrating error. (Fladeboe v. American 

Isuzu Motors, Inc. (2007) 150 Cal.App.4th 42, 58 (Fladeboe); see Denham v. Superior 

Court (1970) 2 Cal.3d 557, 564.) California’s doctrine of implied findings is a natural 

and logical corollary to these principles. (Fladeboe, supra, at p. 58.)

“Under the doctrine of ‘implied findings,’ if the record is silent, we must presume 

the trial court fully discharged its duty to consider all of the relevant statutory factors and 

made all of the factual findings necessary to support its decision for which there is 

substantial evidence. [Citations.] Where the record reflects what the court actually did, 

however, these presumptions do not apply.” (Brewer v. Carter (2013) 218 Cal.App.4th 

1312, 1320.)

An appellant can avoid application of the doctrine by completing two procedural 

steps. (Fladeboe, supra, 150 Cal.App.4th at p. 58.) First, the appellant must secure a 

statement of decision pursuant to section 632 and Rule 3.1590. (Fladeboe, at p. 58.) 
23.

Second, in accordance with section 634, the appellant must bring any ambiguities or 

omissions in the statement of decision to the trial court’s attention. (Fladeboe, at p. 58; 

Rule 3.1590(d)–(g) [procedures for requesting, preparing and objecting to a statement of 

decision].)

Here, we conclude the doctrine of implied findings does not apply for two reasons. 

First, the trial court’s premature filing of the interlocutory judgment of partition 

prevented Via Appia from completing the procedural steps that trigger the issuance of a 

statement of decision and the opportunity to object to any omissions or ambiguities. 

Second, the record is not silent as to the rationale for the trial court’s decision to order 

partition by sale. The judgment included an explanation of the court’s decision and, thus, 

“the record reflects what the court actually did.” (Brewer v. Carter, supra, 218 

Cal.App.4th at p. 1320; see In re Marriage of Seaman & Menjou (1991) 1 Cal.App.4th 

1489, 1494, fn. 3 [the judgment set forth the reasons for the award and, thus, the absence 

of a statement of decision did not hamper the appellate court’s review].)

III. THE MANNER OF PARTITION

A. The Hypothetical About Dividing Grazing Land

Via Appia contends “the trial court abused its discretion by denying a division in 

kind while at the same time acknowledging that it could be done easily.” The purported 

acknowledgement is contained in the judgment’s sentence that states: 

“Clearly, if the land were to used solely for cattle grazing, partition in kind 

would be ordered as it would be a simple task to draw a line dividing the 

property into subparcels of equal value.” 

Via Appia has interpreted the phrase “were to used” to mean “were to be used” 

and, for purposes of this appeal, we assume that was trial court’s intended meaning. In 

Via Appia’s view of California case law, courts consistently have judged the impossibility 

of an equal division under Butte Creek based on the then current status of the property. 

Via Appia urges this court to “treat the trial court’s hypothetical phrase (‘If the land were 
24.

to be used solely for cattle grazing,’) as a finding that applies to the current status of the 

property.” 

We reject Via Appia’s invitation to interpret the trial court’s hypothetical as a 

finding of fact about the Property’s current status. The court’s statement is more 

reasonably interpreted as describing a hypothetical situation that is distinct from the 

circumstances that existed at the time of trial. First, the hypothetical echoes Sattler’s 

testimony that “if it was just all about grazing you could just all draw a line anywhere and 

everything is equal.” Second, the phrase “were to be used solely” includes future use 

and, therefore, the circumstances in the hypothetical are inconsistent with the court’s 

finding that the parties did not purchase the Property to be used solely as grazing land, 

but paid prices above its value as grazing land with the specific goal of future 

development. (See fn. 4, ante.) This finding about making an investment that depends 

on future development comports with Sattler’s testimony about holding the land for 

investment purposes and his proposed partition, which was based on five-acre lots that 

could be developed for residences under the general plan. Third, even if Via Appia’s 

interpretation was one of multiple reasonable interpretations, it could not be adopted here. 

The applicable principles of appellate practice require judgments to be interpreted in a 

manner that favors its affirmance. (See pt. II.B.3., ante.) 

B. Current Use as the Basis for Determining Value

In the trial court, the parties disputed the role that potential future development of 

the Property should play in applying the tests for whether partition “would be more 

equitable than division of the property.” (§ 872.820, subd. (b).) As described earlier, 

each of those two tests refers to “value.” (Butte Creek, supra, 136 Cal.App.3d at pp. 

366–367.)
25.

Via Appia contends the relevant “value” for applying the tests is based on the 

current use and market value and the trial court erred in considering future development 

value and the uncertainty of dividing that future development value proportionately. 

OPD responds to Via Appia’s assertion that a court must restrict the evidence it 

considers by arguing Via Appia has misstated California law. OPD cites Richmond v. 

Dofflemyer (1980) 105 Cal.App.3d 745 (Richmond), a case in which this court stated that 

section 872.840 “gives the trial court the power to use its own sound discretion in 

determining whether under all of the facts and all of the evidence presented to it the 

property should be partitioned in kind or sold.” (Richmond, supra, at p. 758, italics 

added.) Section 872.840 addresses the partition of property held in trust. We conclude 

the evidence relevant to whether property held in trust should be partitioned by sale also 

is relevant for determining which manner of partition is more equitable under section 

872.820, subdivision (b). We have located nothing in the comments of the Law Revision 

Commission that suggests a narrower standard of relevance should be applied when 

deciding which manner of partition is more equitable. 

Therefore, to make the assessment of evidence under section 872.820, subdivision 

(b) consistent with the assessment conducted under section 872.840 and other areas of 

law that require value determinations, we adopt the following legal conclusions. First, a 

trial court’s evaluation, of which manner of partition is more equitable for purposes of 

section 872.820, subdivision (b), should consider all the evidence presented that is 

relevant to the property’s value and use. Second, a property’s development potential is 

relevant to its value for purposes of applying the tests set forth in Butte Creek, supra, 136 

Cal.App.3d at pages 366 through 367.

The foregoing conclusion about the evidence relevant to determining the value of 

property in a partition action parallels the rules for determining value in other areas of 

California law. For example, the Eminent Domain Law (§ 1230.010 et seq.) provides that 

just compensation for property taken is measured by its fair market value. (§ 1263.310.) 
26.

The definition of fair market value refers to a willing seller and a willing buyer, “each 

dealing with the other with full knowledge of all the uses and purposes for which the 

property is reasonably adaptable and available.” (§ 1263.320, subd. (a), italics added.) 

Accordingly, in eminent domain proceedings, the legislative and administrative 

restrictions on the property’s use are factors the knowledgeable, willing buyer and seller 

would consider in agreeing upon a price. (South Bay Irrigation Dist. v. CaliforniaAmerican Water Co. (1976) 61 Cal.App.3d 944, 982.) Therefore, those factors affecting 

future development are to be considered by the court in making its determination of 

market value. (Ibid.)

The same approach is taken when assessing property taxes based on the real 

estate’s “fair market value.” (Cal. Const., art. XIII, § 1; Elk Hills Power, LLC v. Board of 

Equalization (2013) 57 Cal.4th 593, 606.) In that context, fair market value means “the 

amount of cash or its equivalent that property would bring if exposed for sale in the open 

market under conditions in which neither buyer nor seller could take advantage of the 

exigencies of the other, and both the buyer and the seller have knowledge of all of the 

uses and purposes to which the property is adapted and for which it is capable of being 

used.” (Rev. & Tax Code, § 110, subd. (a), italics added.)

Similarly, a court deciding how much is owed on a deficiency after a judicial 

foreclosure sale must determine the fair value of the property sold. (§ 726, subd. (b).) 

“The determination of the ‘fair value’ is based on all of the circumstances that affect the 

value of the property, including potential uses, zoning requirements, and development 

possibilities as well as other factors, only one of which is the cash or cash-equivalent 

value of the property.” (5 Miller & Starr, supra, § 13:283, p. 13-1274.)

To summarize, based on the interpretation of Title 10.5 adopted in Richmond, 

supra, 105 Cal.App.3d 745, and how value is determined in the contexts described above, 

we reject Via Appia’s argument that the Property’s current use or status should be the sole 

or primary basis for determining its value when applying the tests set forth in Butte 
27.

Creek. In short, the Property’s development potential affects the “value” relevant to 

applying the tests and is a factor that should be considered in determining which manner 

of partition is “more equitable.” (§ 872.820, subd. (b).) 

C. Test One: Division into Subparcels of Proportionate Value

1. Via Appia’s Claims for Error and Relief Sought

Via Appia contends the trial court erred in applying the Butte Creek test Via Appia 

has labeled as the “impossibility of equitable division” test. That test addresses whether 

“the property is so situated that a division into subparcels of [proportionate] value cannot 

be made.” (Butte Creek, supra, 136 Cal.App.3d at p. 366.) Another way of stating the 

test is that “the party desiring the sale must show that the land cannot be divided equally” 

(ibid.), which in this case means divided in proportion to Via Appia’s one-third interest 

and OPD’s two-thirds interest in the Property. 

Via Appia asserts that, “instead of basing the issue of whether the property can or

cannot be equitably divided based on the current status of the property, the trial court 

based the ‘possibility of equitable division’ on how the subparcels would be valued in the 

future” and concluded that, because there were too many variables to make a

determination of future development value at the time of trial, an equitable in kind 

partition was not possible. As described in part III.A., ante, Via Appia contends the trial 

court (1) abused its discretion by denying division in kind after it acknowledged that 

division in kind could be done easily and (2) amplified the abuse by using uncertainty 

about future development potential as the basis for rejecting the preference for an in kind 

division. 

The relief on appeal sought by Via Appia is significant to our analysis of Via 

Appia’s claims of trial court error. Via Appia’s opening brief contends “the law requires 

that the Judgment be reversed and based on the finding that the land can be equally 

divided between them in proportion to their ownership interests, [Via Appia] requests that 
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this Court remand the case with an order that, on the basis of that finding, [the trial court] 

enter Judgment of partition in kind.” Via Appia’s reply brief concludes by requesting 

“this Court to remand the case with directions that the trial court order a partition in kind

based on the present-day use and valuation with the assistance of a referee, if necessary.” 

In seeking reversal with directions for entry of a judgment of partition in kind, Via 

Appia has abandoned the intermediate appellate remedies of remanding for further 

proceedings that comply with section 632 and Rule 3.1590 and would result in the trial 

court addressing points Via Appia asserts were omitted from the rationale provided in the 

interlocutory judgment. Via Appia’s all-or-nothing approach to this appeal undertakes the 

difficult task of demonstrating that, based on the record developed in the trial court, the 

only appropriate outcome is partition in kind. Consequently, we next consider two 

theories that, if established, would justify a reversal with directions for the entry of a 

judgment requiring partition in kind. 

2. Relief Based on a Finding by the Trial Court

The first theory does not require this court to evaluate the evidence and make 

findings because Via Appia relies on the trial court’s purported finding that the Property 

easily could be divided in kind. The theory asserts that this court can apply California 

law to that finding and conclude partition in kind is required. The purported finding 

involves the trial court’s hypothetical about land used solely for cattle grazing. In part 

III.A. of this opinion, we determined that the trial court’s hypothetical is not a finding of 

fact about the Property and what Via Appia has termed its “current status.” Because we 

have determined there is no finding of fact that the Property’s current value is derived 

from its use as grazing land, it follows that Via Appia’s theory based on the purported 

finding fails. 
29.

3. Relief Based on a Failure to Carry the Burden of Proof

A second theory that supports Via Appia’s request for the entry of judgment in its 

favor is that, based on the record presented, this court can determine OPD failed to carry 

its burden of proving “that, under the circumstances, sale and division of the proceeds 

would be more equitable than division of the property.” (§ 872.820, subd. (b).) If the 

evidence presented was such that no reasonable trier of fact could find that partition by 

sale was more equitable than division in kind, then a judgment requiring physical division

would be the only appropriate outcome. In that situation, further proceedings would give 

OPD an inappropriate second chance as carrying its burden of proof. This theory 

parallels that of a motion for judgment notwithstanding a verdict in which the moving 

party attempts to show that it is entitled to judgment in its favor despite the decision made 

by the jury. 

Rephrasing this theory slightly, if the evidence presented by OPD failed, as a

matter of law, to carry OPD’s burden of proving partition by sale was more equitable, 

then the statutory preference for partition in kind would be the only remedy available 

under law. Via Appia’s appellate briefing does not explicitly develop this theory, but Via 

Appia has made contentions about the absence of evidence on particular points, which 

can be interpreted as implying that Via Appia seeks the entry of judgment in its favor 

based on OPD’s failure to carry its burden of proof. Consequently, we deem it 

appropriate to address the failure-of-proof theory.

Our analysis of the theory begins by identifying the applicable standard of proof. 

The parties’ briefing does not address the applicable standard and we have located no 

published decision identifying the standard of proof used in determining whether 

partition by sale is more equitable than a physical division. Consequently, we resort to 

general principles and conclude the applicable standard is a preponderance of the 

evidence, which means showing the existence of the fact in dispute “is ‘more likely than 

not.’ ” (Masellis v. Law Office of Leslie F. Jensen (2020) 50 Cal.App.5th 1077, 1093.) 
30.

This legal conclusion is based on Evidence Code section 115, which establishes that the 

preponderance of the evidence standard is the default standard of proof in civil cases. 

(Masellis, supra, at p. 1086.) 

The second step of our analysis identifies the standard this court should use in 

determining whether OPD failed to present sufficient evidence to prove it more likely 

than not that a partition by sale would be more equitable. We conclude the applicable 

standard is “whether the record developed before the trial court contains substantial 

evidence allowing a reasonable fact finder to make the challenged finding with the 

confidence required by the” the preponderance of the evidence standard of proof. 

(Conservatorship of O.B. (2020) 9 Cal.5th 989, 995.) “Substantial evidence is evidence 

that is ‘of ponderable legal significance,’ ‘reasonable in nature, credible, and of solid 

value,’ and ‘ “substantial” proof of the essentials which the law requires in a particular 

case.’ ” (Id. at p. 1006.) Generally, whether the record developed below contains 

substantial evidence is a question of law. (Smith v. Selma Community Hospital (2008) 

164 Cal.App.4th 1478, 1515; Mau v. Hollywood Commercial Buildings, Inc. (1961) 194 

Cal.App.2d 459, 466.) 

The third step of our analysis addresses Via Appia’s specific contentions about the 

absence of evidence on particular points. Via Appia asserts that OPD presented no 

evidence that (1) “a proportional division could not be made based on current usage and 

current market value” and, instead, “presented opinion testimony that an in kind division 

could make future development of the Property more difficult”; (2) “any features on a 

proposed subparcel could not be separately appraised and taken into account for purposes 

of a proportional division” and (3) “the property could not be divided so that the twothirds subparcel and the one-third subparcel could not both benefit from this speculative 

future development.” 

OPD responds to Via Appia’s contentions about the absence of evidence by 

arguing this court should disregard those contentions because Via Appia made them 
31.

without any citation to facts in the record or to legal authority. (See Schmidlin v. City of 

Palo Alto (2007) 157 Cal.App.4th 728, 738 [ordinarily, challenges to the sufficiency of 

the evidence to support a particular finding must summarize the evidence on that point, 

favorable and unfavorable and show why it is insufficient].) Thus, OPD contends Via 

Appia has failed to carry its burden as the appellant to affirmatively demonstrate 

reversible error. 

Alternatively, OPD argues the evidence is sufficient to support the trial court’s 

decision. OPD notes the judgment stated there was abundant evidence of the many issues 

affecting the Property’s future development. OPD describes those issues, discusses the 

evidence, and cites to the record where the evidence is located. OPD finishes its 

discussion by asserting the evidence showed the portions of the Property with better 

access, soil quality, and topographical features could not be allocated equitably with the 

portions with constraints (such as wetlands, heritage oaks, other environmental issues, 

steep terrain, and the airport exclusions zone). OPD also argued that a physical division 

would force the parties to work together in developing their respective parcels and further 

disputes would arise, which would limit development potential and increase their costs. 

Here we consider Via Appia’s argument that OPD “presented no evidence that a 

proportional division could not be made based on current usage and current market 

value.” We reject this argument’s point about current usage because current usage is not 

the correct legal standard for determining whether the property’s value can be equitably 

divided using partition in kind. With respect to current market value, Via Appia’s view of 

what constitutes current market value appears to be tainted by its legal errors about 

current usage and current status. Alternatively, if Via Appia has taken the correct view of 

current market value—that is, a view in which the market takes into account the 

Property’s potential for development—then argument fails because the record contains 

evidence establishing there are many factors that make it difficult to create subparcels 

that allocate the Property’s value, which includes the value of future development, 
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proportionately. Because of those factors, it is difficult to predict how that development 

will be dispersed across the Property and what portions will increase in value most from 

the development. This uncertainty, in turn, means any division of the Property at this 

point would be unlikely to equitably apportion the aggregate current market value of the 

Property into a two-thirds and one-third share. Consequently, based on the record 

presented, we conclude a reasonable trier of fact could find OPD carried its burden of 

proving a partition by sale was more equitable than physically dividing the Property. 

Via Appia asserts that OPD “presented no evidence that any features on a 

proposed subparcel could not be separately appraised and taken into account for purposes 

of a proportional division.” This argument fails for the same reason as the previous 

argument. It misses the points about (1) the uncertainty caused by the factors affecting 

the Property’s development and how that development ultimately will be dispersed across 

the Property and (2) the impact of that uncertainty on whether an equitable physical 

division can be made now. 

Via Appia also asserts that OPD merely “presented opinion testimony that an in 

kind division could make future development of the Property more difficult.” This 

assertion about evidence presented is not relevant to the failure-of-proof theory analyzed 

here because such an analysis necessarily addresses the absence of evidence sufficient to 

carry OPD’s burden of proof. 

Consequently, we conclude Via Appia has not demonstrated it is entitled to the 

entry of judgment of partition in kind on the ground that OPD failed to carry its burden of 

proving “that, under the circumstances, sale and division of the proceeds would be more 

equitable than division of the property.” (§ 872.820, subd. (b).) Restated from another 

perspective, the record contains substantial evidence supporting a finding that physically 

dividing the Property would be inequitable because of uncertainty about how the 

Property’s aggregate value would be realized if and when the development process is 

begun and, in the face of the numerous unknowns creating the uncertainty, the Property 
33.

could not be divided in a manner that equitably protects the interests of each owner in a 

proportionate division. 

D. Other Issues

1. Physical Division Diminishing the Property’s Aggregate Value

Via Appia also argues the trial court erred in applying Butte Creek’s second test. 

We need not address those arguments because, to demonstrate a reversal of the judgment 

is warranted, Via Appia would have to demonstrate the judgment is erroneous under both 

tests described in Butte Creek. Because the judgment of partition by sale can be upheld 

under the first test, there is no need to address the second test. Any misapplication of the 

second test would be harmless error.

2. Judicial Admission

OPD contends the original complaint’s request for partition by sale constitutes a 

judicial admission that conclusively establishes a partition in kind would harm the 

development potential of the Property and diminish the value of each party’s interest. 

Because the judgment is affirmed on an alternate ground, we need not analyze whether 

Via Appia made a binding judicial admission. (See Barsegian v. Kessler & Kessler

(2013) 215 Cal.App.4th 446, 452 [a judicial admission is ordinarily an unequivocal 

factual allegation by one party that is admitted by the opposing party].) 

DISPOSITION

The interlocutory judgment of partition by sale is affirmed. Respondents shall 

recover their costs on appeal.

FRANSON, J.

WE CONCUR:

LEVY, Acting P. J.

DE SANTOS, J.