Filed 6/28/13 DeMartini v. DeMartini CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

MICHAEL DEMARTINI et al.,

Cross-complainants and Appellants, 

v.

TIMOTHY DEMARTINI et al.,

Cross-defendants and Respondents. 

 A133277, A134749

 (Marin County 

 Super. Ct. No. CIV 085235)

These consolidated appeals have been taken from a judgment of partition of 

numerous parcels of real property among siblings, and related orders. Crosscomplainants and appellants claim that the trial court erred by ordering the partition by 

sale of one of the parcels, awarding capital improvement expenses to one of the crossdefendants without reduction for below market rent paid, and awarding mineral rights 

entirely to cross-defendants. We conclude that the order for partition by sale was not an 

abuse of discretion. We further conclude that the award of reimbursement for capital 

expenditures that improved a parcel was not error, although the award must be reduced 

by the amount of rent paid by the cross-defendants in possession of the parcel below the 

fair market value. The award of mineral rights was not prejudicial error. We therefore 

direct the trial court to modify the award of reimbursement, but otherwise affirm the 

judgment and the remaining orders from which the appeals have been taken. Crosscomplainants‘ request for judicial notice filed on January 18, 2012, is denied as moot. 

The documents that cross-complainants request judicially noticed are already included in 

the record on appeal. 
2

STATEMENT OF FACTS

This prolonged dispute began innocuously enough, with testamentary documents 

executed by James P. DeMartini, Sr., and his wife Thelma,1 which divided their fairly 

extensive real property holdings, a single building in Marin County and numerous parcels 

in Nevada County, equally among their eight children. The real property so divided and 

conveyed by James, Sr., and Thelma over the years through intervivos gifts or by estate 

bequests consist of a commercial property on Bolinas Avenue in San Anselmo (the San 

Anselmo property), numerous undeveloped parcels of a Nevada City Ranch Property 

referred to as the Empress Ranch, subdivided from a total of 420 acres that served as the 

family home, the Empress Mine mineral rights with a stipulated value of zero also 

located in Nevada City on some of the ranch parcels, a commercial building at 102 

Catherine Lane in Grass Valley occupied by a pharmacy, two other occupied medical 

buildings on Catherine Lane in Grass Valley, an unimproved lot on Dorsey Drive in 

Grass Valley, and a vacant lot located in Nevada City. The parties before us are the eight 

children of James, Sr., and Thelma and their spouses, who received the bequests of the 

property in equal shares: cross-complainants and appellants Michael and his wife Renate; 

cross-defendants James C. and his wife Ruth; and cross-defendants and respondents, 

Timothy and his wife Margie, Daniel and his wife Linda, David and his wife Nancy, 

Mark and his wife Laurie, Jon and his wife Lynne, and Sally Humphreys and her husband 

Newell. 

The will of James, Sr., was probated in 1983; the will of Thelma was probated in 

2000. By the date of Thelma‘s death, all the real property had passed in shares to her 

eight children and their spouses, although in varying proportions over the years, rather 

than in an equal division.2 Thereafter, the properties were jointly owned in different 

shares and managed by the parties. 

 

1

For purposes of clarity and convenience we will refer to the parties, who are all members of the 

DeMartini family and their spouses individually by their first names.

2 One parcel, located at 111 Dorsey Lane in Grass Valley, was inadvertently omitted from the 

testamentary trust of James, Sr., but was divided and ordered distributed among the beneficiaries 

in the present action. 
3

The parties attempted unsuccessfully to distribute the properties among 

themselves for many years, but at least managed to agree on the vested percentage 

interests owned by each of the parties and the market value of the parcels, based on 

expert property and appraisal reports. The total value of the properties was set by the 

parties at $6,302,500. The parties stipulated that the San Anselmo property has a value of 

$1,700,000, and the Catherine Lane property has a value of $675,000, making the entire 

remainder of the parcels of real property worth $3,927,500. 

The litigation before us was initiated with two complaints filed on October 23, 

2008, by six of the siblings, Timothy, Daniel, David, Mark, Jon, and Sally, and their 

spouses: one, for partition by sale of the San Anselmo property; the second, for 

preliminary and permanent injunction against Michael and Renate to prohibit any further 

use of funds to repair or improve the San Anselmo property. The temporary restraining 

order, issued in the case by stipulation, was subsequently dissolved, and the trial court 

denied the request for a preliminary injunction on the ground that plaintiffs failed to show 

a likelihood of success on the merits. 

Michael and Renate (cross-complainants) subsequently filed a cross-complaint for 

partition against cross-defendants Timothy and his wife Margie, James C. and his wife 

Ruth, Daniel and his wife Linda, David and his wife Nancy, Mark and his wife Laurie, 

Jon and his wife Lynne, and Sally Humphreys and her husband Newell. In 20 separate 

causes of action the cross-complaint sought partition in kind of each of the parcels of real 

property jointly owned by the parties. The request of Michael and Renate for partition in 

kind of the property was ultimately joined by James C. and his wife Ruth; the remaining 

cross-defendants requested partition by sale of all of the parcels.3 

At trial, the court was ultimately presented with two competing plans for division 

and allocation of the parcels. Using the stipulated values of the parcels and adhering to 

 

3 Although James C. and Ruth were not named as cross-complainants, due to their alignment 

with Michael and Renate at trial we will refer to the two factions of siblings and their spouses 

collectively as follows: Michael, Renate, James C. and Ruth, who requested partition in kind of 

the property, as cross-complainants; the remaining group, who favored partition by sale, as crossdefendants. 
4

existing percentages of commercial and residential properties, cross-complainants 

submitted a plan for essentially equal partition in kind that divided the parcels into 

commercial and residential properties. Cross-complainants would receive commercial 

properties that included the unimproved lot on Dorsey Drive in Grass Valley (the Dorsey 

Drive property), and the medical building on Catherine Lane in Grass Valley, along with 

designated residential parcels of the Nevada City Ranch Property on Jones Bar Road. 

Cross-defendants would receive the remaining commercial parcels, including the San 

Anselmo property and the Catherine Lane property on which David operated the 

pharmacy business (the pharmacy property), along with other residential parcels of the 

Nevada City Ranch Property. The distribution would be equalized by payments of a total 

of $3,000 from cross-complainants to cross-defendants. 

Cross-defendants continued to seek partition by sale of all of the property at trial, 

and objected to cross-complainants‘ proposed in kind distribution. David and Nancy 

complained that allocation of the ―empty lot‖ on Dorsey Drive to cross-complainants, 

specifically Michael and Renate, would adversely impact parking for customers of their 

pharmacy on Catherine Lane, a ―crucial‖ element of their business. Other crossdefendants expressed a preference for residential lots that were targeted to go to crosscomplainants in their plan. Cross-defendants also pointed out that the San Anselmo 

property targeted for distribution to them under cross-complainants‘ plan may suffer from 

subsurface environmental contamination of unknown nature and extent that would 

compromise the value of the property. 

Quite late in the trial proceedings, cross-defendants suggested a different 

disposition: sale of the San Anselmo property and division of the proceeds, with partition 

in kind of all of the remaining parcels. David and Nancy would retain the pharmacy 

building on Catherine Lane, and the nearby Dorsey Drive property for parking. The 

remaining properties would be partitioned among the parties, with a payment from crossdefendants to cross-complainants of approximately $26,000 to equalize the division. 

Following the presentation of evidence and argument, the trial court adopted 

cross-defendants‘ plan for sale of the San Anselmo property and partition in kind of the 
5

remaining parcels. In an interlocutory judgment of partition filed on June 20, 2011, the 

court ordered sale of the San Anselmo property and distribution of the proceeds to the 

parties in equal one-eighth shares of $212,500 per couple. The Nevada County properties 

were ordered partitioned in kind rather than sold, and were divided according to the 

court‘s calculation of the remaining varying percentage interests of each couple based on 

prior transfers over the years. The pharmacy building on Catherine Lane and the lot on 

Dorsey Drive in Grass Valley were awarded to cross-defendants, with title vested 80 

percent in David and Nancy. David and Nancy were granted reimbursement in the total 

amount of $135,000 for capital improvements made on the pharmacy building. Specified 

parcels of the Nevada County ranch property were awarded to cross-complainants; the 

rest of the parcels, along with the Empress Mine mineral rights, were awarded to crossdefendants. By agreement, the parties accepted each of the parcels as cotenants. Michael 

was ordered to account for all of his income and expenses related to his prior 

management of the San Anselmo property. A referee was appointed to effectuate the sale 

of the San Anselmo property to the highest bidder, administer all title transfers of the 

Nevada County properties, and oversee accounting for all transactions. 

The trial court subsequently granted cross-defendants‘ motion for a restraining 

order prohibiting Michael or his agents from any further management of the San 

Anselmo property, or incurring any liability for the property. A management company 

was also appointed by the court as a limited receiver to preserve and maintain the San 

Anselmo property, collect rents, and incur expenses for maintenance and repair. 

Appellants Michael and Renate have filed appeals from both the interlocutory 

judgment of partition, the restraining order, and other designated orders. We have 

consolidated the appeals. 

DISCUSSION 

I. The Apportionment of the San Anselmo Property. 

The primary issue before us concerns the trial court‘s decision to order sale of the 

San Anselmo property rather than distribution of it in kind with the remaining parcels. 

Cross-complainants argue that ―California law strongly favors partition in kind‖ of jointly 
6

owned property, and cross-defendants failed to satisfy their burden of proof that a sale of 

the San Anselmo property was ―necessary and equitable.‖ Cross-complainants point out 

that the value of the San Anselmo property was stipulated, so the ―possibility of 

environmental issues with respect to that property‖ did not justify the court‘s decision to 

order a sale, which had the effect of diminishing their share of ―the ranch land in a 

partition in kind,‖ and requiring them to ―pay capital gains taxes on the sale of the 

property.‖ They claim ―the trial court‘s decision to require sale of the San Anselmo 

property exceeded the bounds of its discretion.‖ 

We begin our inquiry by observing that partition by sale of jointly owned property, 

even partial partition by sale, is within the statutory authority of a trial court under 

recognized circumstances. Although Code of Civil Procedure section 872.8104directs 

that a 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,‖ section 

872.820 provides: ―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: [¶] (a) The parties agree to such relief, by their pleadings or otherwise. 

[¶] (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.‖ Section 872.830 adds: ―If, in making a determination whether sale would be 

more equitable than division of the property, the court finds that sale and division of 

proceeds for part of the property would be more equitable than division of the whole 

property, the court may order that such part be sold and the remainder divided.‖ (Italics 

added.)

Thus, despite the preference for partition in kind, ―In lieu of dividing the property 

among the parties, the court shall order the property be sold and the proceeds divided 

 

4 All further statutory references are to the Code of Civil Procedure. 
7

among the parties in accordance with their interests in the property if the parties agree to 

such relief or the court determines sale and division of the proceeds would be more 

equitable than a division of the property. (Code Civ. Proc., § 872.820.)‖ (LEG 

Investments v. Boxler (2010) 183 Cal.App.4th 484, 493.) ―Section 872.830 gives the trial 

court authority to order a partial division of the property and a sale of the remainder if it 

would be more equitable than a division of the whole.‖ (Richmond v. Dofflemyer (1980) 

105 Cal.App.3d 745, 754.) The burden of proof is on one endeavoring to force a sale as 

against unwilling co-owners to prove that the case is not a proper one for partition in 

kind. (East Shore Co. v. Richmond Belt Railway (1916) 172 Cal. 174, 180; Faires v. 

Pappmeier (1951) 104 Cal.App.2d 713, 714.) 

The ―more equitable‖ standard is a broad one that vests considerable authority in 

the trial court ―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 v. Dofflemyer, supra, 105 Cal.App.3d 745, 754, 758.) ―[A] partition 

suit is in equity,‖ and ―a court of equity has broad powers and comparatively unlimited 

discretion to do equity . . .‖ (Id. at p. 766; Elbert, Ltd. v. Federated etc. Properties

(1953) 120 Cal.App.2d 194, 200.) The trial court‘s decision in an action for partition will 

not be disturbed on appeal absent an abuse of discretion. (See Hall v. Bru (1932) 216 

Cal. 153, 155; Zarrahy v. Zarrahy (1988) 205 Cal.App.3d 1, 5; Hummel v. First National 

Bank (1987) 191 Cal.App.3d 489, 493–494.) In our review for abuse of discretion this 

court ―will not weigh questions of fact determined by the trial court in a partition action if 

there is any substantial evidence to support them.‖ (Cunningham v. Frymire (1958) 160 

Cal.App.2d 726, 729.) 

We find no abuse of discretion here. Although the parties agreed before trial on a 

market value for the San Anselmo property, along with all of the other parcels, the 

evidence adduced at trial, including an environmental site assessment report by AllWest 

Environmental Inc., revealed the cognizable prospect of subsurface environmental 

contamination of the property due to possible past release of drycleaning chemicals on 

the site. The report recommended a further subsurface investigation, which had not yet 
8

been done, to assess the environmental quality of the soil, soil gas, and groundwater on 

the property. As a result, the more equitable apportionment, as the trial court recognized, 

was to order sale of the property to equally assign the risk of any loss of value associated 

with any necessary additional environmental investigation and cleanup. None of the 

parties was anxious to receive an in kind award of the San Anselmo property and thereby 

assume the entire financial consequence of restoration of the property. The character and 

location of the property is evidence from which a court may infer partition in kind is not 

equitable. (See Cunningham v. Frymire, supra, 160 Cal.App.2d 726, 729–730.) The sale 

of the San Anselmo property and distribution of proceeds also afforded the parties the 

opportunity to retain and improve other parcels awarded to them in kind. Under the facts 

presented, partition by sale of the San Anselmo property was the more equitable 

disposition. No abuse of discretion occurred. (Richmond v. Dofflemyer, supra, 105 

Cal.App.3d 745, 759; Romanchek v. Romanchek (1967) 248 Cal.App.2d 337, 343–344.) 

II. The Award to David of Credit for Capital Improvements in the Pharmacy Building.

Cross-complainants assert that the trial court‘s ―most glaring error‖ in the partition 

order is the award of ―expenses claimed by David for capital improvements‖ to the 

pharmacy building on Catherine Lane. The Catherine Lane property was owned 75 

percent by David and Nancy, 12.5 percent by cross-complainants, and 12.5 percent by 

Mark and Laurie. While the parties were co-owners of the Catherine Lane property, the 

Spring Hill Pharmacy corporation wholly owned by David and Nancy paid $125,960 for 

a ―major remodel‖ of the building, $2,000 in an attempt to repair a roof leak, then 

$10,000 for an entirely new shingle roof. David and Nancy sought reimbursement for 

capital expenditures incurred to improve and repair the premises in the total amount of 

$137,960. The expenditures were depreciated over the years on tax returns filed by 

Spring Hill Pharmacy.5 The amount of rent for the building paid by Spring Hill 

Pharmacy varied and increased over time, but most recently was $4,800 per month, of 

which $400 was paid to cross-complainants, $400 was paid to Mark and Laurie, and 

 

5

Spring Hill Pharmacy paid all of the property taxes and insurance on the property. 
9

$4,000 was paid to David and his wife Nancy. The $4,800 per month rent was 

approximately $.87 per square foot, below the reasonable rental value of the building of 

$1.15 per square foot. David testified that he intended to pay a ―fair rent‖ for the 

property, and would ―pay that rent.‖ 

The trial court granted David and Nancy reimbursement in the amount of 

$135,000, excluding the $2,000 expenditure for roof repairs as ―not capital in nature.‖ 

Cross-complainants‘ contention that any reimbursement awarded to David and Nancy 

must be reduced by the ―tax benefit‖ they received and the amount they paid in rent over 

the years below the ―fair rental value for the property,‖ was rejected by the court. The 

court adjusted the net value of the Catherine Lane property to account for the 

reimbursement in the amount of $135,000. David and Nancy were thus awarded 80 

percent ownership of the Catherine Lane property valued at $540,000 after the deduction 

for reimbursement. Cross-complainants and Mark and Laurie were each awarded a 10 

percent interest in the property, or $67,500. 

Cross-complainants argue that David and Nancy were erroneously awarded 

reimbursement for the capital improvements made in the Catherine Lane property. They 

maintain that the reimbursement order is ―unfair‖ and improper for two reasons: First, the 

―capital improvements‖ made in the Catherine Lane premises ―solely‖ benefitted the 

Spring Hill Pharmacy business conducted by David and Nancy; and second, the court 

failed to reduce the reimbursement award by the amount of rent below market value paid 

by David and Nancy and the tax benefit they received.6

Statutory law provides for reimbursement in partition actions. (In re Marriage of 

Leversee (1984) 156 Cal.App.3d 891, 897.) ―Section 872.140 provides a court effecting 

a partition  ̳may, in all cases, order allowance, accounting, contribution, or other 

compensatory adjustment among the parties according to the principles of equity.‘ ‖ 

(Finney v. Gomez (2003) 111 Cal.App.4th 527, 539, italics omitted.) Section 873.220

states: ―As far as practical, and to the extent it can be done without material injury to the 

 

6

These issues were adequately raised and presented in the trial court, and therefore have not 

been waived or forfeited by cross-complainants. 
10

rights of the other parties, the property shall be so divided as to allot to a party any 

portion that embraces improvements made by that party or that party‘s predecessor in 

interest. In such division and allotment, the value of such improvements shall be 

excluded.‖ 

―Every partition action includes a final accounting according to the principles of 

equity for both charges and credits upon each cotenant‘s interest. Credits include 

expenditures in excess of the cotenant‘s fractional share for necessary repairs, 

improvements that enhance the value of the property, taxes, payments of principal and 

interest on mortgages, and other liens, insurance for the common benefit, and protection 

and preservation of title. (Code Civ. Proc. § 872.140; 4A Powell on Real Property 

(Rohan ed. 1989) ¶ 607 [6], p. 50–77.)‖ (Wallace v. Daley (1990) 220 Cal.App.3d 1028, 

1035–1036.) ―Even though one cotenant does not consent to the making of an 

improvement, since an action for partition is essentially equitable in its nature, a court of 

equity is required to take into account the improvements which another cotenant, at his 

own cost in good faith, placed on the property which enhanced its value and to award 

such cost to him.‖ (Mercola v. Chester (1950) 97 Cal.App.2d 140, 143.) 

Even where, as here, partition of the property proceeded in part by sale, ―the 

determination to proceed by sale rather than division will not prevent an improving 

cotenant from being compensated for improvements he makes in good faith. [Citations.] 

Essential principles of equity require that a cotenant be credited with improvements made

in good faith regardless whether the court proceeds by division or sale of the property 

provided that it can be done without material injury to the rights of the other parties.‖ 

(Wallace v. Daley, supra, 220 Cal.App.3d 1028, 1038.) 

Nothing in the record before us indicates that the expenditures were not incurred 

in good faith. The global value of the property held by the parties, not just the Spring 

Hill Pharmacy business, was increased by the capital improvements. The value of the 

Catherine Lane property, and with it the value of the parties‘ property interests as a 

whole, was enhanced by the remodeling and roof replacement paid for by David and 
11

Nancy. The court acted well within its discretion by granting reimbursement for the 

capital expenditures. (Williams v. Miranda (1958) 159 Cal.App.2d 143, 159.) 

The more difficult issue is whether the trial court erred by failing to reduce the 

reimbursement award by the difference between the amount of rent paid by David and 

Nancy over the years, and the full market value for rent of the building. As we read the 

record, David agreed that the Spring Hill Pharmacy corporation paid less than full market 

value in rent. Cross-complainants adduced evidence that Spring Hill Pharmacy paid rent 

of $.87 per square foot to occupy the building, whereas the reasonable rental value of the 

building was $1.15 per square foot. David also acknowledged that he was willing to pay 

a fair and reasonable rent. 

Tenants in common have the right to occupy the common property. (Brunscher v. 

Reagh (1958) 164 Cal.App.2d 174, 176.) When one tenant in common occupies the 

property, the out-of-possession cotenant is generally not entitled to recover the imputed 

rental value of the property from the cotenant in possession. (Id. at pp. 176–177.) Three 

exceptions to this rule exist in California: when there is an agreement between the 

cotenants to share the rents and profits from the property (cf. Black v. Black (1949) 91 

Cal.App.2d 328, 332); when one cotenant has been ousted from possession by the other 

(Estate of Hughes (1992) 5 Cal.App.4th 1607, 1611–1612); or, in a partition action, when 

recovery of the imputed rental value by the cotenant out of possession would be ―just and 

consonant with equitable principles.‖ (Hunter v. Schultz (1966) 240 Cal.App.2d 24, 32.) 

In a partition action, ―  ̳cotenants invoking the jurisdiction of an equity court to obtain 

contribution for maintenance or protective expenditures on the common property have 

been subjected to defensive allowances of the whole or a proper proportion of the 

reasonable value of their occupancy or use.‘ . . . [Citation.]‖ (Hunter v. Schultz, supra, 

at p. 32, italics omitted.) 

In this partition action, the just and equitable result is to offset the reimbursement 

granted to David and Nancy by the amount of rent they paid which was below market 

value for the premises. If they are entitled to receive credit for capital improvements that 

increased the value of the property for all of the beneficiaries, which they are, they must 
12

also be prepared in fairness to reduce their reimbursement by the benefit they alone 

received by paying less than market value rent. The fact that cross-complainants did not 

require David and Nancy to pay greater rent for the property during their co-ownership of 

the property does not defeat their claim for an offset. David and Nancy received a 

windfall from payment of less than market value rent. This is an action in equity. The 

failure of a party to previously demand greater rent from a sibling cotenant does not 

foreclose an offset where that result is in all other respects fair and equitable. The record 

does not demonstrate that cross-complainants intentionally relinquished their right to 

obtain the offset by expressly granting David and Nancy the right to pay less than market 

rent without reducing their reimbursement for capital expenditures. The evidence does 

not even show that cross-complainants knew the rent paid by Spring Hill Pharmacy was 

below market value. Thus, no waiver occurred. ―  ̳[W]aiver is the ―intentional 

relinquishment or abandonment of a known right.‖ [Citations.]‘ [Citations.]‖ (San 

Mateo Union High School Dist. v. County of San Mateo (2013) 213 Cal.App.4th 418, 

435, fn. 8.) 

Finally, David and Nancy admitted they were prepared pay market value rent to 

their siblings. Equity demands an offset in the reimbursement awarded to crossdefendants in the amount of rent they paid below established market value. Thus, the 

trial court abused its discretion by failing to reduce the award of reimbursement for 

capital improvements by the difference between the amount David and Nancy actually 

paid in rent and the reasonable value of their occupancy or use of the property – which 

was established by the evidence.

III. The Award of Mineral Rights to the Empress Mine. 

Cross-complainants also claim that the trial court erred by allocating the mineral 

rights to the Empress Mine entirely to cross-defendants. They object to the severing of 

the mineral rights from the surface estates, which were divided in kind among the parties. 

Cross-complainants maintain that the ―best solution,‖ which was recommended by the 

―expert appraiser‖ and agreed upon by the parties, was to grant the mineral rights to the 

owners of ―the respective surface estates.‖ Instead, the court apportioned the entirety of 
13

the mineral rights to cross-defendants. They argue that the court‘s allocation of mineral 

rights improperly ignored the expert recommendation and created the prospect of future 

conflict among the parties.

A dispositive factor in our evaluation of the Empress Mine mineral rights 

allocation is that the stipulated value of property is zero. Thus, cross-complainants have 

failed to demonstrate that a different allocation of the mineral rights would have been 

monetarily more beneficial to them. 

Even if we assume the allocation of mineral rights was error, reversal of the 

judgment is not appropriate without an indication in the record of prejudice. Crosscomplainants, as the appealing parties, ―must also show that the error was prejudicial 

(Code Civ. Proc., § 475) and resulted in a  ̳miscarriage of justice‘ (Cal. Const., art. VI, 

§ 13).‖ (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069; see also San Joaquin 

Raptor/Wildlife Rescue Center v. County of Stanislaus (1996) 42 Cal.App.4th 608, 626.) 

―A judgment will only be reversed if the error at the trial court level resulted in a 

miscarriage of justice to the extent that a different result would have been probable 

without the error.‖ (Malibu Mountains Recreation, Inc. v. County of Los Angeles (1998) 

67 Cal.App.4th 359, 372.) A miscarriage of justice is not found ―unless it appears 

reasonably probable that, absent the error, the appellant would have obtained a more 

favorable result.‖ (Khan v. Medical Board (1993) 12 Cal.App.4th 1834, 1841; see also 

Mike Davidov Co. v. Issod (2000) 78 Cal.App.4th 597, 606.) ―Prejudicial error must be 

affirmatively demonstrated and will not be presumed.‖ (People v. Bell (1998) 61 

Cal.App.4th 282, 291.) 

Cross-complainants have not met the burden of showing a miscarriage of justice 

on appeal. With a stipulated value of zero, the allocation of the mineral rights to crossdefendants did not damage cross-complainants by commensurately diminishing the value 

of the property they received. Cross-complainants have offered only conjecture of some 

future conflict due to the separation of the partitioned parcels and the mineral rights. 

Speculative harm cannot support reversal of a judgment. (See People v. Gray (2005) 37 

Cal.4th 168, 230; In re Esmeralda S. (2008) 165 Cal.App.4th 84, 96.) We therefore 
14

decline to reverse that part of the judgment awarding the mineral rights to crossdefendants without a cognizable showing of prejudice to cross-complainants. 

In any event, we find no abuse of discretion in the trial court‘s allocation of the 

mineral rights. The court was not required to follow the opinion and recommendation of 

the appraiser to retain the mineral rights with the respective surface parcels. In light of 

the ongoing dispute the parties have endured, the court may have decided that dividing 

the worthless mineral rights among the various parties and ranch parcels may somehow 

spawn even more litigation. The trial court‘s resolution is no more likely to engender 

conflict than a division of mineral rights with the separate ranch parcels. Also, the 

nature, extent and association of the mineral rights with the various parcels was not made 

entirely clear by the evidence presented at trial. What is clear is that the mineral rights 

have no value. No prejudicial error was committed in the allocation of the mineral rights 

to cross-defendants. 

IV. The Appointment of a Referee and the Award of Parcels to the Parties as 

Cotenants.

James C. and Ruth, who were cross-defendants below but ultimately allied with 

cross-complainants at trial, have filed a brief as respondents, but in which they assume 

the role of appellants and argue that the trial court erred by failing to appoint a referee 

prior to trial to review the large number of diverse properties, identify land planning, 

subdivision map act and environmental concerns, and present a partition plan to the court. 

To support their contention James C. and Ruth rely on section 873.010, which in 

subdivision (a) provides: ―The court shall appoint a referee to divide or sell the property 

as ordered by the court.‖ (Italics added.)7 They also challenge the trial court‘s 

 

7

Subdivision (b) of section 873.010 states: ―The court may: [¶] (1) Determine whether a 

referee‘s bond is necessary and fix the amount of the bond. [¶] (2) Instruct the referee. [¶] (3) Fix 

the reasonable compensation for the services of the referee and provide for payment of the 

referee‘s reasonable expenses. [¶] (4) Provide for the date of commencement of the lien of the 

referee allowed by law. [¶] (5) Require the filing of interim or final accounts of the referee, settle 

the accounts of the referee, and discharge the referee. [¶] (6) Remove the referee. [¶] (7) Appoint 

a new referee.‖ 
15

determination that they agreed to accept each of the parcels awarded to them as 

cotenants. 

We reject these contentions for several reasons. First, James C. and Ruth did not 

file an appeal in this case and did not join cross-complainants in their appeal. They are 

not entitled to act as appellants and present issues for resolution in this appeal. Second, 

despite use of the word ―shall‖ in section 873.010, subdivision (a), the statute has been 

―construed to require the appointment of a referee only where it is determined that a 

referee is necessary or would be desirable or helpful and that it should not be so strictly 

construed as to require the expense and time-consuming services of a referee where the 

court has adequate evidence before it to render its decision. The function of the 

interlocutory judgment is to permit the trial court to determine those matters which have 

been presented to it for determination, and which it can determine upon the evidence 

submitted to it without the necessity of a referee. The only function of a referee is to 

assist the court in determining those matters which cannot be so determined upon the 

evidence before it.‖ (Richmond v. Dofflemyer, supra, 105 Cal.App.3d 745, 755.) Here, 

the trial court properly appointed a referee after partition of the property to complete the 

sale of the San Anselmo property, administer title transfers of the Nevada County 

properties, and oversee accounting for all transactions. Appointment of a referee before 

judgment was unnecessary. No error in the appointment of a referee was committed.8 

Finally, James C. and Ruth have not pointed to any evidence to contradict the court‘s 

finding that cross-complainants agreed to accept the award of property ―to them as 

cotenants, and they have stipulated that they will work out the details of who owns what 

within their group.‖ 

 

8 Michael and Renate ―do not now challenge‖ the appointment of a receiver, but have expressly 

reserved the right to challenge any issues ―that have arisen‖ following the judgment of partition 

and appointment order in the future. We do not consider the propriety of any acts undertaken by 

the referee in this appeal. Michael and Renate have not raised any issues related to the 

restraining order. 
16

DISPOSITION

The amount of reimbursement awarded to cross-defendants for capital 

improvements in the Spring Hill Pharmacy building at 102 Catherine Lane in Grass 

Valleyis reversed. The case is remanded to the trial court with directions to reduce the 

amount of reimbursement awarded to cross-defendants by the difference between the 

amount of rent actually paid by David and Nancy and the reasonable market value of 

their occupancy or use of the property while the parties were co-owners of the Catherine 

Lane property, based on the evidence previously presented at trial—and only to the extent 

and for the duration that evidence of the rental value of the premises was presented—and 

to recalculate, to the extent necessary, the remaining varying percentage interests of each 

couple in the parcels upon modification of the amount of reimbursement.9 In all other 

respects the judgment of partition is affirmed. All the other orders from which the 

appeals have been taken are affirmed. The parties are to bear their own costs on appeal. 

__________________________________

Dondero, J. 

We concur: 

__________________________________

Margulies, Acting P. J. 

__________________________________

Banke, J. 

 

9

For any period during which the parties did not present evidence of the fair market rental value 

of the property, no offset in the amount of reimbursement is necessary.