Filed 12/18/13 Hammer v. Hammer CA2/3
                   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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

                                      SECOND APPELLATE DISTRICT

                                                 DIVISION THREE


STEVEN B. HAMMER, as Executor, etc.,                                  B243409

         Plaintiff and Appellant,                                     (Los Angeles County
                                                                      Super. Ct. No. EC052930)
         v.

MICHAEL K. HAMMER,

         Defendant and Respondent.



         APPEAL from judgment of the Superior Court of Los Angeles County,
David S. Milton, Judge. Affirmed in part, reversed in part, and remanded with directions.


         Law Office of Lisa MacCarley and Lisa MacCarley for Plaintiff and Appellant.


         Law Offices of Robert A. Graham, Jr. and Robert A. Graham, Jr. for Defendant and
Respondent.
                                             _____________________
                                     INTRODUCTION
       Plaintiff and appellant, Steven B. Hammer (Steven), Executor of the Estate of
Charles B. Hammer, deceased (Charles), appeals certain portions of a judgment on an
accounting in an action to partition real property held as tenants in common with Charles’
brother Michael K. Hammer (Michael).1 Charles’ and Michael’s mother, Carol Hammer
(Carol), owned and resided at the real property in question until her death in 2008. For
approximately 10 years prior to her death, Carol required assistance with her daily living
activities. At different times during this period, Charles and Michael lived with their
mother, provided her with in-home care, and assumed responsibility for managing Carol’s
financial affairs. This included opening a line of credit secured by the subject real
property, which, at the time of Carol’s death, constituted an approximately $243,000
encumbrance. After Carol’s death, the property was transferred to Charles and Michael,
who took ownership as tenants in common.
       Soon after, a dispute arose between the brothers over the line of credit and rents
derived from the property. Failing to reach a resolution between themselves, the brothers
opted to litigate their dispute in the instant action. While the action was pending, Charles
passed away and Charles’ son, Steven, substituted into the litigation as the personal
representative of his father’s estate. In lieu of testimony, the parties submitted written
accountings and evidence to the trial court, upon which the court entered a judgment
partitioning the property and ordering certain surcharges against Charles’ estate and
Michael, respectively. Steven, as executor of Charles’ estate, challenges certain portions
of the judgment in this appeal.
       Steven principally contends that the trial court lacked jurisdiction to order the
surcharges against Charles’ estate because Michael failed to file a creditor’s claim as
prescribed by Probate Code section 9370 after Charles’ death. Contrary to Steven’s
contention, our Supreme Court has long recognized that a judgment is not void for failure


1
      Because the parties share the same last name, we refer to the parties’ first names
when referring to them individually.


                                               2
to present a claim to the estate’s executor, and such a judgment should not be reversed
unless the failure to file a claim was first raised in the trial court. As we shall explain,
Steven forfeited this objection by failing to preserve it in the trial court.
       However, because it was undisputed that Michael drew $52,000 from the line of
credit and distributed those amounts to his children—a distribution which, contrary to the
trial court’s finding, was not authorized by Carol’s trust—we will reverse and remand with
directions to modify the judgment to surcharge Michael for this amount plus interest. On
remand, the trial court is further directed to calculate the total surcharges plus interest to be
charged against each party, to offset such amounts, and to enter judgment against the party
having a remaining surcharge. In all other respects the judgment is affirmed.
                    FACTUAL AND PROCEDURAL BACKGROUND2
       1.     The Burbank Property, Carol’s Declining Health and the Carol Virginia
              Hammer Living Trust
       For most of her adult life, and until her death in 2008 at the age of 98, Carol owned
and resided in a house located in Burbank, California (the Burbank Property). In 1996,
Charles and his wife moved into the Burbank Property after they lost their home due to
business failure.
       Beginning in 1998, Carol’s health began to decline. Among other things, Carol
suffered from macular degeneration, a condition that causes blindness. The same year,
Charles and his wife began providing Carol with day-to-day care and living assistance.
Charles also assumed responsibility for managing Carol’s financial affairs.




2
        Consistent with the substantial evidence standard of review, we recite the facts
established by the record in the light most favorable to the judgment, giving Michael the
benefit of every reasonable inference and resolving any conflict in the evidence in support
of the judgment. (Los Angeles Unified School Dist. v. Casasola (2010) 187 Cal.App.4th
189, 194, fn. 1.)


                                                3
       On July 12, 2001, Carol created and executed the Carol Virginia Hammer Living
Trust (the Trust) and transferred the Burbank Property to the Trust. Carol was the settlor,
initial beneficiary, and initial trustee of the Trust. The Trust appointed Charles and
Michael to serve as co-alternate successor trustees upon Carol’s death or incapacity.
       With respect to the distribution of Carol’s trust estate, the Trust provides: “I
CAROL VIRGINIA HAMMER upon my death give the entirety of the estate, whether
real, personal or mixed . . . to my children CHARLES B. HAMMER and MICHAEL K.
HAMMER equally, share and share alike.”
       Beginning in 2004, Michael began sharing responsibility for Carol’s care. This
required Michael to travel back and forth, for two weeks at a time, between his home in
southern Oregon and the Burbank Property. In December 2006, Michael’s vehicle broke
down while traveling home from visiting his mother. At that time, Michael, Charles and
Carol decided that Michael would take ownership of Carol’s 2001 Chevrolet van. Title to
the van was held in Charles’ name until Charles transferred it to Michael in January 2007.
       In June 2007, Michael moved into the Burbank Property. From then until Carol’s
death in October 2008, Michael was completely responsible for Carol’s care, except for
some services that were provided by care workers who Michael hired and supervised.
       2.     The Line of Credit and Life Insurance Distributions
       In June 2005, when Charles was responsible for managing Carol’s finances, Carol
obtained a $100,000 line of credit from Wells Fargo, which was secured by the Burbank
Property. After learning about the line of credit, Michael spoke with Charles several times
about the encumbrance on the Burbank Property. Charles eventually admitted to Michael
that approximately $12,000 had been used to paint the house and apartments on the
Burbank Property, while Charles used the remainder of the $100,000 for his personal
expenses.




                                              4
       After learning about the line of credit, Michael also discovered that in 2003 and
2004, a total of $29,000 had been liquidated from an Anchor National Life Insurance
policy held by Carol. Charles never accounted for the proceeds, which Michael believed
were used by Charles and his wife for their personal expenses.
       These discoveries led to suspicion that Charles was not properly managing Carol’s
finances. Charles ultimately was relieved of responsibility for managing Carol’s financial
affairs, and those responsibilities were assumed by Carol’s granddaughter and Michael in
June 2006.
       In November 2007, the line of credit was increased to $250,000 and a new deed of
trust was recorded on the Burbank Property in favor of Wells Fargo.
       Around early-2008, Michael began making plans to move Carol from Burbank to
his home in Oregon. The anticipated move required Michael to make some additions to
his house before Carol could live with him. In connection with these plans, in January
2008, Michael drew $52,000 from the line of credit, which he deposited in his personal
account. However, Carol’s condition soon worsened and the planned move was
abandoned. The $52,000 remained in Michael’s account until Carol’s death, at which time
Michael distributed a portion of the funds to his children (Carol’s grandchildren).
       On October 3, 2008, the day Carol passed away, Michael drew an additional
$90,000 from the line of credit. Michael maintained that these funds were taken as
compensation for the care he provided to his mother.
       3.     The Partition Action and Charles’ Death
       After Carol’s death, Charles and Michael became co-successor trustees under the
Trust. On November 13, 2008, Charles and Michael transferred the Burbank Property
from the Trust to themselves as tenants in common pursuant to the Trust’s terms of
distribution. At the time of the transfer, the Burbank Property was encumbered by a deed
of trust in favor of Wells Fargo securing the $250,000 line of credit, approximately
$243,000 of which was in use.




                                             5
       What appears to have been a simmering dispute between the brothers over the
management of Carol’s finances boiled over after the Burbank Property was transferred
into their names. The brothers failed to settle the dispute between themselves and, on
April 28, 2010, Charles filed a complaint against Michael for partition of the Burbank
Property and an accounting.3 Charles alleged that Michael wrongfully took each of the
$52,000 and $90,000 line of credit advances without Charles’ knowledge, permission or
consent. The complaint prayed for partition by sale of the Burbank Property, an
accounting between Charles and Michael, and payment by Michael to Charles of all
amounts found due as a result of the accounting.
       On September 3, 2010, Michael filed his answer and cross-claims against Charles.
Michael alleged that Charles had failed to account for the $100,000 line of credit advance,
as well as various other items of income (such as rents, investment income and Carol’s
pension and social security payments), and several items of personal property, including
jewelry, photographs, fine china, artwork and coin, animated cell, and comic book
collections. Michael likewise prayed for an accounting and payment by Charles to
Michael of all amounts found due as a result of the accounting.
       On October 27, 2010, while the partition action was pending, Charles passed away.
On January 7, 2011, Letters Testamentary were issued appointing Steven as executor of
the Estate of Charles B. Hammer (Charles’ Estate). On May 18, 2011, Steven moved for
an order substituting himself, as executor and personal representative, for Charles as
plaintiff in the partition action. On June 17, 2011, the trial court entered the requested
order for substitution.




3
       The complaint also named Wells Fargo as a defendant. Charles and Michael later
stipulated to excuse Wells Fargo from participation in the litigation. In their stipulation,
Charles and Michael agreed that the Wells Fargo lien would be fully satisfied from the
proceeds of the partition sale.


                                               6
       4.     The Interim Judgment for Partition and the Parties’ Accountings
       On November 30, 2011, the trial court entered an order on the parties’ stipulation
requiring Steven and Michael to “prepare accountings of the rental proceeds, loan proceeds
(as it pertains to the Wells Fargo Line of Credit), and any other funds or assets belonging
to Carol V. Hammer which came into [Charles’ and Michael’s] control and/or possession.”
Such accountings were to be submitted in lieu of trial testimony. The same day, the court
entered an “interlocutory judgment” finding that Charles’ Estate and Michael were each
the owner of an undivided one-half interest in the Burbank Property. The interlocutory
judgment appointed a referee and ordered the Burbank Property to be partitioned by sale
with the resulting proceeds to be applied to pay, among other things, the approximately
$243,000 owing on the Wells Fargo line of credit. The remainder of the proceeds were to
be awarded to Charles’ Estate and Michael in severalty according to their respective
interest.
       On December 9, 2011, Steven filed his accounting for the $100,000 line of credit
advance. The accounting included various summaries of Carol’s estimated income and
expenses. These summaries were largely based upon excerpts from Carol’s individual tax
returns for the years 2005, 2006 and 2007.4 Based on these estimates, Steven’s accounting
purported to show that Carol’s expenditures for the three-year period exceeded her income
by more than $90,000, which he argued accounted for the $100,000 credit advance.
However, Steven’s accounting did not show when the $100,000 in question was drawn
against the line of credit, nor did it match Carol’s expenditures to any line of credit
advance taken during Charles’ stewardship of Carol’s finances.
       The same day, Michael filed a “Trial Brief” and supporting declaration to account
for the $52,000 and $90,000 advances taken while he was responsible for managing
Carol’s finances. Michael’s brief and declaration also addressed Steven’s contention that

4
        The exception was Carol’s “estimated annual expenditures for non-deductible items
such as food, toiletries, incontinent pads, transportation, and other costs associated with
daily living.” As for these items, Steven simply estimated that Carol’s daily living needs
would require expenditures of $2,000 per month, or $24,000 per year.


                                               7
Charles’ Estate was entitled to a credit for the van that had been transferred to Michael in
2007. With respect to the $52,000 advance, Michael’s declaration explained that these
funds were originally drawn to make home improvements that were required before Carol
could move in with him. When those plans fell through due to Carol’s declining health,
Michael stated that the funds were “distributed to the grandchildren of Carol Hammer,
pursuant to her trust.” As for the $90,000 advance, Michael maintained that this was taken
as compensation for the care he provided Carol from 2004 until her death in 2008. Finally,
Michael explained that he, Charles and Carol had mutually agreed that the van would be
transferred to Michael to facilitate his visits with Carol.
        On January 6, 2012, Steven filed a response to Michael’s brief and declaration.
Steven maintained that Michael had failed to account for the line of credit advances
because (1) the Trust did not provide for any part of Carol’s estate to be transferred to her
grandchildren and (2) there had never been any agreement that Michael would receive
$90,000 as compensation for caring for his mother. Steven’s response also stated that
“[t]he Executor is not seeking an additional surcharge for the automobile, which he
acknowledges was offered to Michael by Charles.”
        On January 10, 2012, Michael filed his “objection” to Steven’s accounting.
Michael’s objection noted that Steven had failed to account for the several items of
personal property, including jewelry, photographs, artwork, etc., that Michael had
demanded Charles account for in his cross-claim. Michael’s declaration also attached two
form 1099s from Anchor National Life Insurance for 2003 and 2004 showing that a total
of $29,000 had been liquidated from Carol’s life insurance policy while Charles was in
charge of Carol’s finances. Michael claimed that Charles had never accounted for these
insurance proceeds. Finally, with respect to the $100,000 line of credit advance, Michael
testified that Charles had “admitted to me that of that $100,000, approximately $12,000
was used to paint the apartments and house, and to put [on] a new roof,” while “[t]he
balance of the monies was used to pay personal obligations of Charles Hammer and his
wife . . . .”



                                               8
       On January 23, 2012, Steven filed a reply to Michael’s objections. In his reply,
Steven asserted, for the first time in the litigation, that Michael was obligated to file a
“creditor’s claim” pursuant to the Probate Code “[a]s a condition precedent to obtaining
any type of judgment or off-set” against Charles’ Estate. However, Steven argued this was
required with respect to only “Michael’s claims against Charles B. Hammer as to personal
property . . . .” (Italics added.) With respect to the “claims directly related to [the
Burbank Property],” Steven argued his accounting demonstrated “that $100,000 of the line
of credit was used for the support maintenance and care of [Carol].” Steven’s reply did not
address the $29,000 in life insurance proceeds.
       5.     Steven Expressly Maintains that the Trial Court Has Authority to Render a
              Judgment on the Claims Related to the Burbank Property
       On April 3, 2012, a status conference was held after the parties submitted their
accounting briefs. Because the parties had not provided memoranda of points and
authorities with their accountings, the trial court expressed concern about the rules of law
that it should apply in rendering a judgment on the parties’ disputed claims concerning the
line of credit. In response to the court’s concerns, Steven’s counsel maintained that “[t]he
court has the authority to allocate the indebtedness to each party based on the
expenditures” set forth in their accountings. The court ordered the parties to file
memoranda of points and authorities addressing the legal rules governing the allocation of
encumbrances on the Burbank Property and other matters submitted for the court’s
resolution.
       In response to the court’s order, Steven filed a memorandum asserting that “the
court has broad authority in this matter . . . to render it’s [sic] decision based on the
stipulated accountings.” (Some capitalization omitted.) Steven acknowledged that “[t]he
court has broad authority in the partition action” to order, among other things,
“ ‘allowance, accounting, contribution or other compensatory adjustment among the
parties according to the principles of equity.’ ” (Quoting Code Civ. Proc., § 872.140.)
And, Steven maintained, “[t]he court has wide latitude . . . to resolve the claims of the
parties, as the parties have indeed stipulated herein.” Thus, Steven stated, “it is within the


                                                9
power of this Court to render its decision based upon the accountings of the parties and
prior stipulation herein.”
       On June 22, 2012, the trial court entered judgment on the parties’ stipulation and
accountings. The judgment confirmed the sale of the Burbank Property and provided that
the sale proceeds were to be applied to pay off the Wells Fargo line of credit. The
remaining proceeds were to be distributed to Charles’ Estate and Michael in equal shares
after applying the following surcharges.
       The judgment ordered Charles’ Estate to be surcharged as follows: (1) surcharge of
$87,273 plus 10 percent interest from June 2005 for the $100,000 line of credit advance;
(2) surcharge of $29,000 plus 10 percent interest from June 15, 2004 for the Anchor
National Life Insurance policy disbursements; and (3) surcharge of $40,000 for rent at the
Burbank Property, calculated at a rate of $1,600 per month for 25 months.
       In relevant part, the judgment ordered Michael to be surcharged and not surcharged
as follows: (1) surcharge of $90,000 plus 10 percent interest from January 1, 2008 for the
$90,000 line of credit advance; (2) no surcharge for the $52,000 line of credit advance
based on the court’s finding that the “evidence presented revealed the amount was
distributed to grandchildren as desired by Carol Hammer”; (3) no surcharge for the 2001
Chevrolet van based on the court’s finding that “the subject vehicle was given [to Michael]
as an accommodation to assist Carol Hammer”; and (4) surcharge of $24,000 for rent at the
Burbank Property, calculated at a rate of $1,600 per month for 15 months.
                                     CONTENTIONS
       Steven, as executor of Charles’ Estate, contends that portions of the judgment
should be reversed on the following grounds: (1) the trial court lacked jurisdiction to
surcharge Charles’ Estate for any sums because Michael did not file a creditor’s claim after
Charles’ death as prescribed by the Probate Code; (2) the surcharges against Charles’
Estate were not supported by substantial evidence; (3) the trial court’s decision not to
surcharge Michael for the 2001 Chevrolet van was not supported by substantial evidence;
and (4) the court’s decision not to surcharge Michael for the $52,000 line of credit advance
was not supported by substantial evidence.


                                             10
       Contrary to Steven’s contention, the failure to file a creditor’s claim is not
jurisdictional, and we hold that Steven forfeited this objection by failing to preserve it in
the trial court. We further find that the surcharges against Charles’ Estate were supported
by substantial evidence. We likewise find that substantial evidence supported the trial
court’s decision not to surcharge Michael for the 2001 Chevrolet van. However, we agree
with Steven that the trial court’s underlying basis for its decision not to surcharge Michael
for the $52,000 line of credit advance—that these funds were “distributed to grandchildren
as desired by Carol Hammer”—was not supported by substantial evidence. Because it was
undisputed that Michael took these funds and distributed them in a manner not authorized
by Carol or her Trust, we will reverse and modify that portion of the judgment to order a
surcharge of $52,000 plus interest against Michael. In all other respects, the judgment is
affirmed.
                                        DISCUSSION
       1.     Steven Forfeited Any Claim of Error Based on Michael’s Purported Failure
              to File a Creditor’s Claim
       Probate Code section 9370, subdivision (a), provides that an “action or proceeding
pending against the decedent at the time of death may not be continued against the
decedent’s personal representative unless all of the following conditions are satisfied:”
(1) a claim is filed against the estate; (2) the executor rejects the claim; and (3) within three
months after the claim is rejected, the plaintiff moves to substitute the personal
representative into the pending action. Subdivision (b) states that “[n]o recovery shall be
allowed in the action against property in the decedent’s estate unless proof is made of
compliance with this section.”
       Relying on subdivision (b), Steven contends that Probate Code section 9370’s claim
requirement is “jurisdictional.” Because Michael did not file a claim against Charles’
Estate within the time prescribed by Probate Code section 9100, subdivision (a), Steven
maintains that the trial court “acted in excess of its jurisdiction and/or abused its discretion
by surcharging any amounts against Charles’ Estate.” The case law does not support
Steven’s contention.


                                               11
       Contrary to Steven’s jurisdictional argument, “[c]ourts have held that in some
limited circumstances the time requirement for filing a creditor’s claim can be waived or
the estate may be estopped from relying on it when the decedent’s representative has
induced a creditor not to file a timely claim.” (Dacey v. Taraday (2011) 196 Cal.App.4th
962, 978 (Dacey), citing Varney v. Superior Court (1992) 10 Cal.App.4th 1092,
1101-1102; Satterfield v. Garmire (1967) 65 Cal.2d 638, 645; Katz v. A. J. Ruhlman & Co.
(1945) 69 Cal.App.2d 541, 545; Estate of Sturm (1988) 201 Cal.App.3d 14, 18.) In Dacey,
the court held that the appellant estate waived any claim of error based on the plaintiff’s
failure to file a timely creditor’s claim by failing to “sufficiently [preserve] [the issue] as
an independent basis for rejecting [the plaintiff’s] breach of contract claim.” (Dacey, at p.
978.) In doing so, the court rejected the estate’s contention that “it could raise this issue
for the first time on appeal because [the plaintiff’s] failure to file a claim represents an
incurable defect . . . .” (Ibid.)
       The Dacey court’s holding follows a line of Supreme Court cases recognizing that
“a judgment would not be void” for failure to prove that a creditor’s claim was presented
to an estate’s executor; rather, “[s]uch a judgment would be erroneous only, and would not
be reversed even on appeal, unless the objection was first made in the trial court.”
(Falkner v. Hendy (1895) 107 Cal. 49, 52-53; see also Bank of Stockton v. Howland (1871)
42 Cal. 129, 134; Drake v. Foster (1877) 52 Cal. 225, 227; Burmester v. McNear (1919)
42 Cal.App. 527, 530 [estate waived objection that complaint failed to allege presentation
of a creditor’s claim where “proper objection was not made in the trial court, and under
[Falkner v. Hendy; Bank of Stockton v. Howland; and Drake v. Foster], such objection
may not be made for the first time upon appeal”].) This line of authority recognizes that
“[t]he defense that suit was commenced before the presentation and rejection of claim ‘is
simply matter of abatement—a defense which is not favored, and must be made by plea,
and in proper time, or it is waived.’ ” (Radar v. Rogers (1957) 49 Cal.2d 243, 250, quoting
Bemmerly v. Woodward (1899) 124 Cal. 568, 574-575.)
       Consistent with these authorities, we hold that Steven forfeited his objection based
on Michael’s purported failure to present a creditor’s claim. As we noted in our procedural


                                               12
background discussion, Steven raised Probate Code section 9370’s claim requirement only
once in the trial court proceedings—in his reply brief to Michael’s objections to his
accounting. But there, Steven directed his objection at “Michael’s claims against Charles
B. Hammer as to personal property belonging to Michael and/or [Carol]” only. (Italics
added.) Those “personal property” claims, which were asserted in Michael’s cross-claim
and raised again in his objections, related to jewelry, photographs, fine china, artwork and
coin, animated cell, and comic book collections. With respect to Michael’s claims
pertaining to the $100,000 line of credit advance and other financial obligations “directly
related to [the Burbank Property],” Steven did not contend or suggest that Michael was
required to file a creditor’s claim to maintain those pending cross-claims against Charles’
Estate. Rather, Steven challenged these cross-claims by pointing to his accounting, which
he argued “provide[d] an explanation, supported by tax records and receipts, that $100,000
of the line of credit was used for the support maintenance and care of [Carol].” Steven’s
reply brief did not adequately preserve this objection for appeal.5



5
        Indeed, Steven’s reply brief did not establish that Michael was under an obligation
to file a creditor’s claim, because Steven failed to submit evidence to the trial court
demonstrating that Michael received proper notice as required by the Probate Code. Under
the Probate Code’s “nonclaim” provisions, a “creditor’s duty to file a claim is not triggered
unless the personal representative gives proper notice.” (Clark v. Kerby (1992) 4
Cal.App.4th 1505, 1508.) In addition to notice by publication as required by Probate Code
sections 8003, subdivision (b), and 8120, the personal representative also is required to
“give notice of administration of the estate to the known or reasonably ascertainable
creditors of the decedent.” (Prob. Code, § 9050.) Notice to known creditors must be given
by mail as provided in Probate Code section 1215 or, alternatively, the notice may be
given by personal delivery under Probate Code section 1216. In support of the contention
in his reply brief that Michael failed to file the requisite creditor’s claim, Steven submitted
only a “Case Summary” of the probate proceeding for Charles’ Estate. That Case
Summary does not establish that Steven provided notice to Michael as prescribed by
Probate Code section 9050. Based on the record provided by Steven, we cannot say that
the trial court erred by failing to find that Michael’s action was barred by the Probate
Code’s nonclaim provisions. (See Ballard v. Uribe (1986) 41 Cal.3d 564, 574 [“a party
challenging a judgment has the burden of showing reversible error by an adequate
record”].)


                                              13
       Moreover, subsequent to filing his reply brief, Steven expressly maintained that the
trial court was authorized to rule on Michael’s cross-claims related to the line of credit,
notwithstanding Steven’s contention that Michael’s cross-claims related to “personal
property” were barred under Probate Code section 9370. At a hearing prior to the trial
court’s decision on the surcharges, Steven’s counsel unequivocally affirmed that “[t]he
court has the authority to allocate the indebtedness to each party based on the
expenditures” set forth in their accountings. Then, in response to the court’s request for
briefing concerning the legal rules to be applied in making the requested allocation, Steven
filed a memorandum acknowledging that “[t]he court has broad authority in the partition
action” to order, among other things, “ ‘allowance, accounting, contribution or other
compensatory adjustment among the parties according to the principles of equity.’ ”
(Quoting Code Civ. Proc., § 872.140.) Steven confirmed, again in his memorandum, that
“it is within the power of this Court to render its decision based upon the accountings of
the parties and prior stipulation herein.”
       In the proceedings below, Steven never suggested that it would be error for the trial
court to render a judgment on Michael’s cross-claims concerning the Burbank Property.
Steven stipulated to the process adopted by the trial court and affirmed the trial court’s
authority to order the surcharges, notwithstanding Michael’s purported failure to file a
timely creditor’s claim against Charles’ Estate. Steven forfeited his objection by failing to
preserve it in the trial court.
       2.      The Surcharges Against Charles’ Estate Are Supported by Substantial
               Evidence
       Steven also contends that the surcharges against Charles’ Estate were not supported
by substantial evidence. In doing so, Steven asks us to disregard the evidence submitted
by Michael as “unsubstantiated” and insufficient to support the trial court’s factual
findings. In essence, Steven maintains that the evidence permitted only one possible
inference—that, under Charles’ stewardship, Carol’s financial obligations were incurred
solely for her welfare, support and maintenance and not for Charles’ personal benefit. The
record presented by Steven does not compel this conclusion.


                                              14
       “ ‘A judgment or order of the lower court is presumed correct . . . and error must be
affirmatively shown. . . .’ [Citations.]” (Denham v. Superior Court (1970) 2 Cal.3d 557,
564.) “ ‘In resolving the issue of the sufficiency of the evidence, we are bound by the
established rules of appellate review that all factual matters will be viewed most favorably
to the prevailing party [citations] and in support of the judgment. [Citation.] All issues of
credibility are likewise within the province of the trier of fact. [Citation.] “In brief, the
appellate court ordinarily looks only at the evidence supporting the successful party, and
disregards the contrary showing.” [Citation.] All conflicts, therefore, must be resolved in
favor of the respondent. [Citation.]’ . . . [Citation.]” (In re Marriage of Ananeh-
Firempong (1990) 219 Cal.App.3d 272, 278-279.)
       “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 a determination
as to whether there is any substantial evidence, contradicted or uncontradicted, which will
support the finding of fact.” (Estate of Arstein (1961) 56 Cal.2d 239, 240.) “When two or
more inferences can reasonably be deduced from the facts, a reviewing court is without
power to substitute its deductions for those of the trial court.” (Primm v. Primm (1956)
46 Cal.2d 690, 694.)
       “Substantial evidence, of course, is not synonymous with ‘any’ evidence, but is
evidence which is of ponderable legal significance. It must be ‘reasonable in nature,
credible, and of solid value; it must actually be “substantial” proof of the essentials which
the law requires in a particular case.’ [Citations.] Thus, the focus is on the quality, not the
quantity of the evidence. Very little solid evidence may be ‘substantial,’ while a lot of
extremely weak evidence might be ‘insubstantitial.’ [Citation.]” (Toyota Motor Sales
U.S.A., Inc. v. Superior Court (1990) 220 Cal.App.3d 864, 871-872 (Toyota Motor).)
       With these principles in mind, we address Steven’s sufficiency of the evidence
challenges to the surcharges against Charles’ Estate.
              a.       The line of credit surcharge
       In challenging the $87,273 surcharge related to the $100,000 line of credit advance,
Steven largely relies upon the accounting he submitted to the trial court, which he contends


                                               15
“clearly prove[s] that Carol’s expenses were well in excess of her income and that
additional monies totaling approximately $90,000 were expended for Carol’s welfare,
support and maintenance.” Steven’s accounting, whether standing alone or considered
within the context of all the evidence presented to the trial court, does not compel this
conclusion.
       To begin, as Michael points out, the accounting “does not tie” Carol’s expenses to
the $100,000 line of credit advance, nor does it establish how or when the funds from this
advance were spent. Notably, Steven’s accounting relies upon expenses reflected in
Carol’s 2006 and 2007 tax returns; however, the evidence showed that Charles was
relieved of responsibility for managing Carol’s finances in June 2006. Presumably, the
entire $100,000 advance had been spent before that time, making part of the 2006 and all
of the 2007 expenses largely irrelevant.
       Indeed, Michael testified, in his declaration under penalty of perjury, that Charles
admitted the entire $100,000 advance had been spent prior to Michael taking control of
Carol’s finances.6 According to Michael’s testimony, Charles admitted that
“approximately $12,000 was used to paint the apartments and house, and to put [on] a new
roof,” while “[t]he balance of the [$100,000] was used to pay personal obligations of
Charles Hammer and his wife . . . .” Michael also referred to Carol’s 2006 tax returns,
which showed expenditures for painting, roofing and other improvements totaling $12,727.
Based on this evidence, Michael asserted that $87,273 ($100,000 less the $12,727
expenditure) should be surcharged against Charles’ Estate.
       The trial court appears to have found Michael’s testimony credible, and Steven has
not presented us with a record to disturb that determination on appeal.


6
       The record reflects that Steven stipulated to the trial court making credibility
findings based on the parties’ submissions in lieu of live testimony. At the final hearing
before the trial court entered its judgment, the court confirmed with the parties that they
were stipulating to the court making “findings of fact” and “credibility determinations”
based on the “declarations and exhibits” that had been submitted. The parties confirmed
this was the stipulation.


                                              16
              b.     The life insurance surcharge
       For much the same reason, we reject Steven’s challenge to the $29,000 surcharge
for the amounts distributed in 2003 and 2004 from Carol’s Anchor National Life Insurance
policy. Steven contends this surcharge was based solely on Michael’s “belief” that Charles
misappropriated these funds for his own personal benefit. However, the evidence was
undisputed that these funds were distributed from Carol’s insurance policy during the years
in which Charles was living with Carol and in charge of her finances. After Michael
presented evidence of these distributions, Steven did not attempt to rebut Michael’s
contention or to account for the disposition of these funds. Based on the timing of the
distribution, the trial court could reasonably infer that Charles used the insurance proceeds
for his personal purposes.
              c.     The rent surcharge
       Steven contends there was no basis for the $40,000 surcharge for rent because “it
was Carol’s intent that Charles be compensated for his services by providing him and his
wife with room and board.” However, the trial court appears to have determined that
neither brother should be compensated for the care they provided to their ailing mother.
This is borne out by the trial court’s decision to surcharge Michael for the $90,000 line of
credit advance, to which he claimed entitlement as compensation for the care he provided
his mother. It also is demonstrated by the trial court’s decision to surcharge Michael for
the months he lived in the Burbank Property rent-free. Given the trial court’s broad
discretion in a partition action to “order allowance, accounting, contribution, or other
compensatory adjustment among the parties according to the principles of equity” (Code
Civ. Proc., § 872.140, italics added), we cannot say the court erred by refusing to
compensate these brothers for the care they provided to their 98-year-old mother.
       The evidence showed that Charles and his wife moved into the Burbank Property in
1996 and lived there rent-free until at least 2006—far in excess of the 25 months for which
the trial court surcharged Charles’ Estate. Michael also asserted that rent for the Burbank
Property was $1,600 per month—an assertion supported by the rental income reported on
Carol’s tax returns. Based on this record, we find no error in the trial court surcharging


                                             17
Charles’ Estate $40,000 in rent for the years Charles and his wife lived at the Burbank
Property.
       3.     The Decision Not to Surcharge Michael for the 2001 Chevrolet Van Is
              Supported by Substantial Evidence
       In challenging the trial court’s determination with respect to the 2001 Chevrolet
van, Steven concedes that “[a] surcharge would have been totally inappropriate given the
fact that Charles voluntarily gave the vehicle to Michael . . . .” Nevertheless, Steven
maintains that “Charles’ Estate is entitled to a credit for the vehicle.” The distinction
between a “credit” and a “surcharge” in this case is one without difference. In the zero-
sum game the brothers chose to play over the distribution of their mother’s estate, a credit
to Charles is the equivalent of a surcharge to Michael. Steven acknowledges that “Charles
willingly gave the vehicle to Michael so that Michael could visit and spend time with
Carol.” The trial court did not error in refusing to surcharge Michael for this gift.
       4.     The Decision Not to Surcharge Michael for the $52,000 Line of Credit
              Advance Is Inconsistent with the Undisputed Evidence
       Finally, Steven contends the trial court erred “when it failed to surcharge Michael
for the $52,000” line of credit advance, because Michael admitted “that he did not use the
money for Carol’s welfare, maintenance or support, but used it for his own purposes.” On
this point, we agree. Based on Michael’s assertion that Carol’s Trust authorized him to
distribute the funds to Carol’s grandchildren, the trial court determined that no surcharge
should be applied, because the “evidence presented revealed the amount was distributed to
grandchildren as desired by Carol Hammer.” (Underscoring omitted.) However, the Trust
document establishes, as an undisputed fact, that Michael was not authorized to make
distributions from Carol’s trust estate to her grandchildren. Accordingly, we will reverse
and modify this portion of the judgment.




                                              18
       As we previously noted, “[w]here conflicting inferences may reasonably be drawn,
the determination of the trial court will be accepted on appeal even though a contrary
determination would likewise be upheld.” (Toyota Motor, supra, 220 Cal.App.3d at
p. 872.) “However, where the facts are undisputed, the issue is one of law and the
appellate court is free to reach its own legal conclusion from such facts.” (Ibid.) “ ‘When
the record clearly demonstrates what the trial court did, we will not presume it did
something different.’ [Citation.]” (Border Business Park, Inc. v. City of San Diego (2006)
142 Cal.App.4th 1538, 1550.)
       There is no dispute, indeed Michael admits, that Michael drew $52,000 from the
line of credit and transferred those funds to his personal bank account in January 2008. In
his declaration, Michael testified that the funds were originally taken to make necessary
improvements to his home in anticipation of Carol moving in with him. But when Carol’s
condition worsened, Michael admits that he abandoned the plan and left the money in his
account until Carol’s death. Thereafter, Michael testified that the funds were “distributed
to the grandchildren of Carol Hammer, pursuant to her trust.” (Italics added.) To
substantiate this testimony, Michael presented checks and money orders showing
distributions to his children (Carol’s grandchildren) totaling $30,000. Michael did not
account for the remaining $22,000.
       In its written judgment, the trial court determined that Michael should not be
surcharged for the $52,000 because the “evidence presented revealed the amount was
distributed to grandchildren as desired by Carol Hammer.” (Underscoring omitted, italics
added.) The only evidence supporting this conclusion was Michael’s testimony that the
distribution was made to the grandchildren “pursuant to [Carol’s] trust.” The trial court’s
finding and Michael’s testimony are inconsistent with the undisputed terms of the Trust.
       With respect to the distribution of Carol’s trust estate, the Trust unambiguously
provides: “I CAROL VIRGINIA HAMMER upon my death give the entirety of the estate,
whether real, personal or mixed and wheresoever situated and whether owned by me now
or hereafter acquired of which I may be possessed to my children CHARLES B. HAMMER
and MICHAEL K. HAMMER equally, share and share alike.” (Italics added.)


                                             19
       Because the undisputed facts permit only one conclusion—that Michael distributed
the $52,000 in a manner not authorized by Carol or her Trust—we will reverse and modify
the judgment to surcharge Michael for this amount plus interest.
                                       DISPOSITION
       The portion of the judgment denying a surcharge of $52,000 against Michael is
reversed and the matter is remanded to the trial court with directions to modify the
judgment to surcharge Michael for $52,000 plus 10 percent interest from January 1, 2008.
On remand, the trial court is further directed to calculate the total surcharges plus interest
to be charged against each party, to offset such amounts, and to enter judgment against the
party having a remaining surcharge. The judgment is affirmed in all other respects. In the
interest of justice, the parties shall bear their own costs on appeal.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                    KITCHING, J.

We concur:




                      CROSKEY, Acting P. J.




                      ALDRICH, J.




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