Right, I’ve made an anonymised version of the judgement as it seems stupid to have people talking about it while others don’t have it.
In these consolidated appeals, defendant Stoid seeks review of interim orders concerning the partition by sale of the parties’ home, the involuntary dissolution of the parties’ limited liability company, the appointment of a receiver, damages, attorney fees, and an accounting. To the extent the interim orders directed the appointment of a receiver, a partition sale, and the involuntary dissolution, winding up, and liquidation of the business, they are directly appealable. (Code Civ. Proc., § 904.1, subds. (a)(7) [appeal may be taken from an interim order appointing a receiver], (a)(9) [appeal may be taken “[f]rom an interlocutory judgment in an action for partition determining the rights and interests of the respective parties and directing partition to be made”]; Reynolds v. Special Projects, Inc. (1968) 260 Cal.App.2d 496 [interlocutory decree ordering winding up of corporation was final, notwithstanding its title, and therefore appealable].)1 As to the issues addressed in this opinion, the orders are affirmed.
BACKGROUND
Plaintiff The Ex and defendant Stoid, an unmarried couple, were the sole owners of a limited liability company, Stoid-biz LLC (Stoid-biz, the company, or the business), through which they operated their home internet business. After their personal and business relationships deteriorated, The Ex moved out of their home and ceased working for their business. After the parties tried but failed to divide their assets voluntarily, The Ex filed suit in September 2006 for partition by sale of their home, involuntary dissolution of Stoid-biz, accounting, injunctive relief, appointment of a receiver, and damages.
**I. The March 25, 2008 Interim Order and Appeal **
The trial court bifurcated the issues and tried the partition and dissolution issues first, leaving the accounting issues for a later date. Following the trial of the partition and dissolution issues, the court entered a March 25, 2008 interim order from which plaintiff appealed on June 6, 2008 (No. <<REMOVED>>) after her motion for new trial was denied. The court ruled in the March 25 order as follows.
*A. Partition by Sale *
The court found that the parties owned their home as tenants in common, and that The Ex was entitled to exercise his statutory right to partition by sale. The order explained “that under the circumstances, sale and division of the proceeds is more equitable than division of the property. The Court finds that there is no written agreement providing for appraisal by any other method. The Court hereby appoints a referee to monitor the sale of the Subject Property. All expenses regarding the sale of the Subject Property shall be paid by Plaintiff and Defendant Stoid equally. No portion of such expenses shall be paid by Defendant Stoid-biz. The property is to be sold at a private sale and the proceeds are to be divided in accordance with this interlocutory judgment.”
*B. Involuntary Dissolution *
Before discussing the dissolution order, we briefly note that Stoid-biz’s Operating Agreement provided for the involuntary dissolution, winding up, and liquidation of the business upon the occurrence of certain “liquidating events,” which included “[t]he happening of any other event that makes it unlawful or impossible to carry on the business of the Company.” We further note that Corporations Code section 17351, subdivision (a)(4) states that “[p]ursuant to an action filed by any manager or by any member or members, a court of competent jurisdiction may decree the dissolution of a limited liability company whenever any of the following occurs: [¶] . . . [¶] (4) The management of a limited liability company is deadlocked or subject to internal dissention.” In the March 25 order, the trial court ordered the involuntary dissolution of Stoid-biz, stating that “the management of Defendant Stoid-biz is deadlocked and is subject to internal dissension. [¶] The Court finds that Defendant Stoid changed the locks on the Subject Property, changed the [company’s] bank account [by opening a new account in her name only,] and did not give Plaintiff further access to the records of Defendant Stoid-biz.” In light of The Ex’s exclusion from Stoid-biz’s premises, books, assets, and accounts, the trial court appointed The Receiver as receiver and referee. As referee, The Receiver was to oversee the sales of both the home and business. As receiver, The Receiver was “to determine the value and manage the assets of the business, to sell the business, report to the Court and facilitate the division of the proceeds amongst the parties.” The March 25 order directed The Receiver to oversee the sale of Stoid-biz after obtaining three independent appraisals, unless the parties agreed on a reasonable value that met his approval. The order allowed either party to “make an offer to purchase the business interest of the other prior to or once the business is on the market.”
**II. The Asset Sale **
Before The Receiver could obtain three independent appraisals, Stoid-biz’s assets were liquidated in June or July 2008 at a sale by referee. The sale by this method was precipitated by Stoid-biz’s loss of its merchant bank account through which it processed credit card sales. Given the nature of Stoid-biz’s business (<<REDACTED BY H.P.>>), it was difficult to obtain a new merchant bank account and Stoid-biz was rapidly losing income. In light of this development, The Receiver filed a June 13, 2008 ex parte application seeking to hold a sale by referee. (Citing § 873.610 [“The court may, at the time of trial or thereafter, prescribe such manner, terms, and conditions of sale not inconsistent with the provisions of this chapter as it deems proper for the particular property or sale.”].) After the trial court approved the sale, Stoid sought a stay pending her appeal from the March 25 order. When she was unable to post the $337,000 undertaking (later reduced to $295,000) that was ordered by the court, she petitioned for an immediate stay and writ of supersedeas, which was denied by this court on September 9, 2008. At the sale by referee, Stoid purchased Stoid-biz’s assets for $116,000. On July 18, 2008, the court ratified the sale.
**
III. The Accounting Trial, December 4, 2008 Interim Order, and Appeal**
Following the sale of Stoid-biz’s assets, the court held a trial of the accounting issues. It then entered the December 4, 2008 order titled “Proposed Interlocutory Judgment After Completion of the Accounting Phase of Trial,” from which Stoid appealed on December 18, 2008. (<<REMOVED>>) The two appeals (Nos. <<REMOVED>>, <<REMOVED>>) were consolidated on February 6, 2009. According to the December 4 order, the parties’ home had not yet been sold. The December 4 order directed the dissolution of Stoid-biz, ordered the sale of the home’s furnishings, and awarded judgment for The Ex on the accounting issues “in the amount of $103,640 plus attorney fees and costs in an amount to be determined.” The December 4 order reserved the court’s “jurisdiction to resolve all disputes until the Subject Real Property has been sold, the final Referee/Receiver report has been reviewed and approved and any funds remaining are distributed.”2 On April 21, 2009, the trial court entered a “Modified Judgment and Statement of Decision After Completion of the Accounting Phase of Trial.” The April 21 order, which was also interlocutory, increased the amount of The Ex’s judgment to “$194,760.50 plus attorney fees on the partition and costs in an amount to be determined.” The April 21 order further stated that the “judgment is to be paid, to the extent there are funds to do so, from defendant’s share of the assets of Stoid-biz following payment of the creditors and the referee.” The court again reserved jurisdiction to resolve all disputes until the sale of the home, the approval of the final referee/receiver report, and distribution of any remaining funds. On December 2, 2009, Stoid petitioned for writ of supersedeas or immediate stay pending appeal, seeking a stay of the hearing on the receiver’s motion to approve the final acts of dissolution, and to approve his final fees and discharge. The petition was denied by this court on December 17, 2009.
DISCUSSION
Before addressing the issues on appeal, we briefly address the “Motion for Factual Determinations on Appeal” that was filed by Stoid, a pro se litigant, after The Ex elected not to file a respondent’s brief. As a general rule, issues not raised in the opening brief are deemed to be waived. (Reed v. Mutual Service Corp. (2003) 106 Cal.App.4th 1359, 1372, fn. 11.) The rule exists largely as a matter of fairness and we see no reason to depart from it here. Accordingly, the motion is denied. Turning to the opening brief, Stoid raises numerous issues that will be addressed as follows: (1) the right to partition; (2) the finding of deadlock; (3) the appointment of a receiver; (4) the sale by referee and involuntary dissolution order; (5) the accounting judgment; and (6) judicial bias. Because no final award of attorney fees and referee/receiver fees has been entered, we conclude that those issues are not yet ripe for review.
**I. The Right to Partition **
In general, the partition of concurrent property interests is a matter of right, unless barred by waiver or altered by agreement. (§ 872.210, subd. (b); Harrison v. Domergue (1969) 274 Cal.App.2d 19, 21; 12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 72, p. 119.) The right to partition is “subject to waiver which may be effected by an implied as well as an express agreement when an inequity would result. (Thomas v. Witte, 214 Cal.App.2d 322.)” (Pine v. Tiedt (1965) 232 Cal.App.2d 733, 738.) An implied waiver may be found based on evidence “that the parties had committed the property to a specific use for a certain period of time.” (Id. at p. 739.) It may also be found based on evidence of a “writing which requires one party to first offer to sell his interest to the other.” (Schwartz v. Shapiro (1964) 229 Cal.App.2d 238, 253.) However, equitable factors are relevant to this determination and partition may be ordered when it would be inequitable to enforce an implied waiver under the circumstances. (Id. at p. 256.) According to the example cited in Schwartz, “‘If, after an opportunity to purchase the interest of the petitioner under the terms of the contract, the defendant Rhodes should refuse to avail himself of this privilege, the right to partition the property would then arise.’” (Id. at p. 254, quoting Rhodes v. Lane (1947) 202 Ga. 608, 610.) In this case, Stoid contends that, given the undisputed evidence of her right of first refusal, the trial court erred in failing to find that The Ex had waived the right to partition. According to The Ex’s declaration, the parties had orally agreed that Stoid would buy “out my portion of the home we owned together, and she would buy out my interest in the Subject Business as well.” The Ex argued below that it would be inequitable to enforce an implied waiver because Stoid’s right of first refusal was not in writing (citing Civ. Code, § 1624 [statute of frauds]) and, in any event, it had expired because it was not exercised within a reasonable time. (Citing Schwartz v. Shapiro, supra, 229 Cal.App.2d at p. 254.) The Ex stated below: “The parties agreed to no specific time in which to keep the right of first refusal open. Plaintiff has allowed Defendant 15 months to either purchase his interest in the Subject Property or to place it on the market for sale but Defendant did not take any actions toward that goal. . . . [P]laintiff cannot be forced to wait indefinitely and respectfully submits that his application for an order to market and sell the Subject Property immediately be granted.” Stoid contends that because her failure to purchase The Ex’s interest in the home was caused by The Ex’s “unfair demand that Stoid pay a surplus to him for the property or lose it in this action,” The Ex is estopped to deny the existence of an implied waiver. However, Stoid cites only the evidence that arguably supports her position that The Ex’s price was unfair. She does not address the conflicting evidence The Ex presented to convince the trial court that he was entitled to a partition sale.3 Given that a reviewing court is without power to substitute its deductions for those of the trial court and all conflicts in the evidence must be resolved in favor of the respondent (Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 60), we conclude that Stoid has failed to establish the existence of reversible error.
**II. The Finding of Deadlock
**
Stoid contends that the record lacks substantial evidence to support the trial court’s finding that the parties were deadlocked as to their management of Stoid-biz. The contention lacks merit. In the March 25 order, the court cited as supporting evidence the testimony “that Defendant Stoid changed the locks on the Subject Property, changed the bank account and did not give Plaintiff further access to the records of Defendant Stoid-biz.” Although Stoid challenges the credibility of this testimony, she correctly concedes that “the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact.” (Evid. Code, § 411.) Given the trial court’s determination that the testimony was credible, we are bound by that determination in the absence of a compelling reason to disregard it. The rule is well established that “‘[c]onflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]’” (People v. Jones (1968) 268 Cal.App.2d 161, 165.) Stoid contends that the finding of deadlock was based on evidence of “disagreements about two advertising expenditures,” which was insufficient to establish that the parties were deadlocked. However, as noted above, there was other supporting evidence not mentioned in Stoid’s brief. An appellant must state fully, with transcript references, the evidence that is claimed to be insufficient to support the challenged findings. Where this rule is ignored, the reviewing court need not make an independent search of the record. (Haynes v. Gwynn (1967) 248 Cal.App.2d 149, 151.) “‘When a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact.’ [Citations.]” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)
III. The Appointment of a Receiver
The trial court may appoint receivers in “cases where necessary to preserve the property or rights of any party.” (§ 564, subd. (b)(9).) Subject to the court’s control, receivers may bring and defend actions, take possession of the property, receive rents, collect, compound, and compromise debts, make transfers, and “do such acts respecting the property as the court may authorize.” (§ 568.) “A receiver may, pursuant to an order of the court, sell real or personal property in the receiver’s possession upon the notice and in the manner prescribed by Article 6 (commencing with Section 701.510) of Chapter 3 of Division 2 of Title 9. The sale is not final until confirmed by the court.” (§ 568.5.) In this case, The Ex alleged in the complaint that a receiver was necessary to oversee the business because Stoid had assumed complete control of Stoid-biz’s premises, books, assets, and accounts, and had misappropriated company assets. The complaint alleged that a receiver was needed to prevent material harm to The Ex’s interest in the company. After conducting a hearing, the trial court found that a receiver was necessary to preserve Stoid-biz’s assets and appointed The Receiver to serve as receiver. Stoid challenges this appointment, stating that “the Corporations Code statute is intended to prevent such an appointment” and that The Receiver “was supposed to be simply a ‘referee . . . .’” Stoid argues that The Receiver was given the “task of ‘running’ the company and the business as a receiver, without any hearing, and caused irreparable harm in the process.” The court appointed The Receiver as a receiver after a hearing. The opening brief fails to explain why the appointment conflicted with or was precluded by the Corporations Code. The contention, which was raised without adequate argument or citation to authority, merits no further discussion. (Krain v. Medical Board (1999) 71 Cal.App.4th 1416, 1426 [a reviewing court is not obligated to develop the appellant’s arguments].)
**
IV. The Sale by Referee and Involuntary Dissolution Order **
Stoid contends that the trial court erred in allowing a sale by referee of Stoid-biz’s assets after she had elected to purchase The Ex’s interest pursuant to Corporations Code section 17351. Given that the sale by referee was approved and confirmed by the court and the dissolution and winding up of Stoid-biz is nearly, if not entirely, finished, we fail to perceive what relief, if any, is available at this point. In any event, in order to prevail, Stoid must explain, with citations to relevant legal authority, why the trial court erred in confirming the referee’s sale. Given Stoid’s failure to do so, further discussion is not warranted. (See Krain v. Medical Board, supra, 71 Cal.App.4th at p. 1426.)
**V. The Accounting Judgment **
Stoid contends that the trial court’s “accounting judgment and statement [of decision] were completely wrong in almost every possible detail.” However, she relies solely on the “Objections and request for a statement of decision” that were filed before the court issued its “Modified Judgment and Statement of Decision After Completion of the Accounting Phase of Trial” on April 21, 2009. She offers no explanation as to why the April 21 order was erroneous. Stoid also argues that the trial court lacked jurisdiction to conduct the accounting trial while her consolidated appeals from the March 25 and December 4 orders were pending. In support of this argument below, Stoid cited Williams v. Wells Fargo Bank (1941) 17 Cal.2d 104, 107, and Neusted v. Skernswell (1945) 69 Cal.App.2d 361, 370, for the proposition that the perfecting of an appeal from an interim order of partition operates as a stay without bond. However, section 917.4, which was enacted in 1968, provides in relevant part that “[t]he perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the judgment or order appealed from directs the sale, conveyance or delivery of possession of real property which is in the possession or control of the appellant or the party ordered to sell, convey or deliver possession of the property, unless an undertaking in a sum fixed by the trial court is given . . . .” Stoid does not explain why section 917.4 does not apply to this case.
To be continued…