Filed 3/4/15 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 J. DEMARTINI et al., 

 Cross-complainants and Appellants, 

v. 

TIMOTHY P. DEMARTINI et al., 

 Cross-defendants and Respondents. 

 A140389 

 (Marin County 

 Super. Ct. No. CIV085235) 

INTRODUCTION

 The instant appeal concerns our order on remand in our prior opinion DeMartini v. 

DeMartini (June 28, 2013, A133277 & A134749 [nonpub. opn.] (DeMartini)). In that 

opinion, we addressed the contention by cross-complainants Michael and Renate 

DeMartini that the trial court had erred in its partition of family-owned real estate 

holdings in Marin and Nevada Counties. We concluded the trial court had properly 

exercised its discretion, including allowing for reimbursement to cross-defendants David 

and Nancy DeMartini for improvements made to a co-owned rental property that also 

housed their business. However, we remanded the matter for the court to consider 

reducing the reimbursement by the difference between the rent paid by the business and 

the property’s reasonable fair market rental value.1

 Michael and Renate appeal from the 

trial court’s order finding they failed to prove any offset or adjustment to the 

reimbursement award is required. We affirm. 

 

1

 By the time of trial, David owned a 75 percent share of the building, while his brothers 

Michael and Mark DeMartini (along with their spouses) each owned 12.5 percent. 
2

FACTUAL BACKGROUND AND PROCEDURAL HISTORY 

 The factual background of this matter is well known to the parties and we need not 

detail it here. The instant appeal concerns the commercial building at 102 Catherine 

Lane in Grass Valley. The building houses a pharmacy that is owned and operated by 

David and Nancy. The pharmacy business pays rent on the property. It paid $3,200 per 

month in rent from 2003 to the end of 2005, of which $2,400 went to David and Nancy, 

and $400 each went to Mark and Michael. Beginning in 2006, David increased the rent 

paid by the pharmacy to $4,800 per month but did not increase the amount paid to his two 

brothers. Over the years, David and Nancy spent approximately $135,000 for capital 

improvements to the pharmacy building. (DeMartini, supra, A133277 & A134749, at 

p. *5.) 

 In our earlier opinion, we issued the following order: “The case is remanded to the 

trial court with directions to reduce the amount of reimbursement awarded to crossdefendants 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.” (DeMartini, supra, A133277 & 

A134749,at p. *16.) Our order also included the following language in a footnote: “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.” (Ibid.) 

 After our remand issued, the trial court ordered the parties to furnish information 

derived from the earlier trial, including the dates on which each couple acquired record 

title to the pharmacy property, the actual rent paid by David and Nancy during any period 

of time when Michael and Renate’s names appeared on record title to the property, and 

the reasonable rental value of the building during that same time period. 
3

 In their submission, David and Nancy claimed a reduction was not merited 

because “no direct evidence of the fair market rental value for the Catherine Lane 

property was presented at trial.” They noted a reference to market rent appears in an 

appraisal prepared by Daniel Ketcham, but contended the rent figure was not probative as 

it was used only to calculate the property’s value at a single point in time. They also 

noted the trial court already determined they had paid all of the property taxes and 

insurance for the pharmacy building, “two factors not considered in the number assigned 

for market rent within [Ketcham]’s appraisal.” 

 Michael and Renate submitted portions of David’s trial testimony, and alleged that 

the parties had “stipulated to a reasonable rate of $1.15 per square foot per month, triple 

net.” They asserted this figure was “not limited by inclusive dates” and would be suitable 

for a five-year term with 3 percent annual increases. In their submission, they included a 

chart of proposed rental offsets based on various rental payment scenarios, including 

offsets supplemented with an interest rate of 10 percent. 

 On November 5, 2013, the trial court filed its order ruling Michael and Renate had 

failed to present competent evidence to support an equitable offset to David’s and 

Nancy’s award for capital expenditures. The court found “[t]he fair market rental value 

for 102 Catherine Lane on or about March 2010 was approximately $1.00 per square foot 

market [sic] ‘modified gross.’ ” It also determined David and Nancy had paid all the 

property taxes and insurance, and had paid “significantly in excess of any reasonable 

established market value” while the parties were co-owners. This appeal followed. 

DISCUSSION 

I. Failure To Request A Statement Of Decision 

 Michael and Renate challenge the reasoning behind the trial court’s ruling. They 

assert the court’s order is “internally inconsistent and illogical” because (1) David and 

Nancy admitted they had paid only $0.87 per square foot since 2006, which is below the 

$1 per square foot figure the court found was the reasonable market value as of at least 

March 2010; (2) David admitted at trial that he had “shorted” his two brothers since 2006 

by failing to pay them their proportionate share of the rent; and (3) David and Nancy 
4

failed to pay $1 per square foot market rent between March 2010 and the date of the 

interlocutory judgment in June 2011. 

 Ordinarily, the trial court’s judgment is presumed to be correct, and all 

intendments and presumptions are indulged in favor of its correctness. (In re Marriage of 

Arceneaux (1990) 51 Cal.3d 1130, 1133.) Upon a party’s timely and proper request, 

Code of Civil Procedure section 632 requires a trial court to issue a statement of decision 

following “the trial of a question of fact by the court.” The statement must explain “the 

factual and legal basis for [the court’s] decision as to each of the principal controverted 

issues at trial . . . .” (Code Civ. Proc., § 632.) No statement of decision is required if the 

parties fail to request one. (Agri-Systems, Inc. v. Foster Poultry Farms (2008) 

168 Cal.App.4th 1128, 1134 (Agri-Systems); see Stermer v. Modiano Constr. Co. (1975) 

44 Cal.App.3d 264, 271.) 

 A party’s failure to request a statement of decision when one is available has two 

consequences. First, the party waives any objection to the trial court’s failure to make all 

findings necessary to support its decision. Second, the appellate court applies the 

doctrine of implied findings and presumes the trial court made all necessary findings 

supported by substantial evidence. (Agri-Systems, supra, 168 Cal.App.4th 1128 at 

p. 1135.) This doctrine “is a natural and logical corollary to three fundamental principles 

of appellate review: (1) a judgment is presumed correct; (2) all intendments and 

presumptions are indulged in favor of correctness; and (3) the appellant bears the burden 

of providing an adequate record affirmatively proving error.” (Fladeboe v. American 

Isuzu Motors, Inc. (2007) 150 Cal.App.4th 42, 58.) 

 Here, the trial court’s order is in the form of a memorandum opinion. “A 

memorandum opinion is not a decision. Although it may purport to decide issues in the 

case, it is merely an informal statement of the views of the trial judge. It does not 

constitute findings of fact.” (Taormino v. Denny (1970) 1 Cal.3d 679, 684.) Although a 

court’s comments may be valuable in illustrating the trial judge’s theory, they may never 

be used to impeach the order or judgment. (In re Marriage of Ditto (1988) 206 

Cal.App.3d 643, 646.) This is appropriate because “a court is not bound by its statement 
5

of intended decision and may enter a wholly different judgment than that announced.” 

(Canal-Randolph Anaheim, Inc. v. Wilkoski (1978) 78 Cal.App.3d 477, 494.) A request 

for a statement of decision allows the trial court to review its memorandum of intended 

decision and “to make . . . corrections, additions, or deletions it deems necessary or 

appropriate.” (Miramar Hotel Corp. v. Frank B. Hall & Co. (1985) 163 Cal.App.3d 

1126, 1129.) Michael and Renate failed to request a statement of decision and therefore 

waived on appeal any objection based on the trial court’s failure to make all findings 

necessary to support the court’s ruling. Accordingly, the only question before us is 

whether the record supports the finding that no offset to the reimbursement awarded to 

David and Nancy is required to equalize the rent amounts paid to Michael and Renate. 

II. Substantial Evidence Supports The Order 

 Where an appellant challenges the sufficiency of the evidence, we must start with 

the presumption that the record contains evidence sufficient to support the judgment; it is 

the appellant’s burden to demonstrate otherwise. (Foreman & Clark Corp. v. Fallon

(1971) 3 Cal.3d 875, 881.) The appellant’s brief must set forth all of the material 

evidence bearing on the issue, not merely the evidence favorable to the appellant, and 

also must show how the evidence does not sustain the challenged finding, else the claim 

of insufficiency of the evidence is forfeited. (Ibid.; Western Aggregates, Inc. v. County 

of Yuba (2002) 101 Cal.App.4th 278, 290.) An appellant must also be mindful that the 

reviewing court does not have the power to reweigh the evidence, to consider the 

credibility of witnesses, or to resolve conflicts in the evidence or in the reasonable 

inferences that may be drawn therefrom. (Huang v. Board of Directors (1990) 220 

Cal.App.3d 1286, 1294.) The test is “whether there is substantial evidence in favor of the 

respondent. If this ‘substantial’ evidence is present, no matter how slight it may appear in 

comparison with the contradictory evidence, the judgment will be affirmed.” (9 Witkin, 

Cal. Procedure (5th ed. 2008) Appeal, § 370, p. 427, italics omitted.) 

 The Ketcham appraisal was done on February 9, 2010. As part of the appraisal, 

Ketcham investigated recent leasing activity within the immediate and competitive 

commercial market. When adjusted to a common lease basis of modified gross, the 
6

leases indicated a rental range of $0.85 to $1.72 per square foot. The most relevant 

comparable rents ranged from $0.94 to $1.10 per square foot. Based on these 

comparables and the specific attributes of the subject property, the estimated market rent 

was set at $1 per square foot per month. This figure was used as the basis of income 

projections contained in the analysis of the property’s market value. It was not used to 

calculate the parties’ entitlement to rental payments or offsets. The $1 per square foot 

market rent estimate was designated as “modified gross,” meaning that the landlord 

passes through to the tenant increases in certain operating costs for the property, such as 

insurance. 

 An additional appraisal had been prepared by CBRE.2

 At trial, the parties had 

stipulated to use the values in the Ketcham appraisal to measure the market value of the 

property, which was valued at $675,000. The values in the CBRE report were not 

addressed at trial. Yet Michael and Renate erroneously asserted in their submission on 

remand that the parties had stipulated to evidence contained in the CBRE report. In the 

report, the following statement appears: “It was reported that the subject property located 

at 102 Catherine Lane is leased to a relative of the ownership on a verbal month-to-month 

basis for $400 per month.[3] The lease amount appears to be well below market and is 

considered ‘pocket-to-pocket’ and is given no reliance in determining market rent for the 

subject.” However, it is undisputed that the total rent being paid during the time period 

relevant here was $4,800. 

 The CBRE report’s market rent conclusions as to the pharmacy space showed 

comparable rates ranged from $1 to $1.23 per square foot. The report states that $1.15 

per square foot per month “appears reasonable.” However, this estimate appears to 

represent a composite of the rental rates for the pharmacy as well as for the office space 

 

2

 The CBRE appraisal valued the fair market value of the property as of March 12, 2010 

at $960,000. 

3

 This statement was apparently based on Michael’s representation that the monthly rent 

was $400 per month (the amount he and Renate received) as opposed to the actual rent, 

which was $4,800 per month. 
7

located at 108 Catherine Lane. Thus, it does not appear to be an accurate estimate as to 

the pharmacy property itself. In any event, the parties did not stipulate to the CBRE 

report’s figures at trial. We cannot say the trial court erred insofar as it relied on the $1 

per square foot rate from the Ketchem report. 

 Michael and Renate also argue that the trial court ignored the undisputed evidence 

that David had “shorted” his siblings by at least $12,000 at the time of trial, based on his 

acknowledged failure to increase the $400 per month paid to them after he raised the rent 

in 2006. As David and Nancy note, this point was not raised with the trial court in 

Michael’s and Rentate’s submission filed on remand. It was their obligation to set forth 

this evidence in their submission if they wanted the court to consider it. The general rule 

of evidence that “a party has the burden of proof as to each fact the existence or 

nonexistence of which is essential to the claim for relief or defense that he is asserting.” 

(Evid. Code, § 500.) Having failed to direct the court’s attention to this specific point, we 

cannot fault the trial court’s failure to explicitly address it in its order on remand. 

 The trial court apparently relied on the figures in the Ketchem report, along with 

undisputed evidence that David and Nancy had paid property taxes and insurance on the 

property, in concluding that Michael and Renate failed to prove an offset was necessary. 

The court’s ruling is supported by substantial evidence. 

DISPOSITION 

 The order is affirmed. 
8

 _________________________ 

 Dondero, J. 

We concur: 

_________________________ 

Margulies, Acting P.J. 

_________________________ 

Banke, J.