DeMartini, et al. v. DeMartini, et al.

In August 2023, the Timothy Group filed a motion for apportionment of fees and costs incurred after the June 2020 Order. On November 27, 2023, the Court ordered apportionment of the requested clean-up costs and consultant fees and attorney’s fees and awarded interest at the default rate of 7%. The Court held that each couple’s portion of the fees and costs, accrued from the date of the June 2020 Order through the date the Timothy Group’s motion was filed, was $11,433.15 plus interest at the rate of 7%. Pursuant to a declaration from the Timothy Group’s counsel dated December 19, 2023, each couple’s share of interest at 7% totaled $2,528.73.

The Timothy Group now seeks an apportionment of additional fees and costs it contends it has incurred since the November 2023 Order. Specifically, the Timothy Group seeks an order apportioning $10,585.96 in cleanup costs and consultant fees and $20,277 in attorneys’ fees related to environmental cleanup. The Timothy Group also asks the Court to apportion $70,005.60 in attorneys’ fees incurred in trying to collect previously apportioned costs from Michael and Renate, with these fees being borne solely by Michael and Renate. The Timothy Group also seeks $3,913,72 in interest from each of the eight co-owner groups.

B.

Legal Standard

Code of Civil Procedure Section 874.010 provides: “The costs of partition include: (a) Reasonable attorney’s fees incurred or paid by a party for the common benefit . . . (e) Other disbursements or expenses determined by the court to have been incurred or paid for the common benefit.” “The costs of partition include reasonable expenses, including attorney’s fees, necessarily incurred by a party for the common benefit in prosecuting or defending other actions or other proceedings for the protection, confirmation, or perfection of title, setting the boundaries, or making a survey of the property, with interest thereon at the legal rate from the time of making the expenditures.” (Code Civ. Proc. § 874.020.)

Section 874.030 provides: “Where disbursements have been made by a party under the direction of the court, interest at the legal rate shall be allowed thereon from the time of making such disbursements.”

Section 874.040 provides that “Except as otherwise provided in this article, the court shall apportion the costs of partition among the parties in proportion to their interests or make such other apportionment as may be equitable.”

C. Request for Judicial Notice

The Timothy Group’s request for judicial notice of the Orders dated September 11, 2025, January 20, 2016, June 25, 2020, and November 27, 2023 (Exhibits A-D), the February 4, 2013 vexatious litigant Order (Exhibit E), the July 25, 2023 writ of execution (Exhibit F), the December 20, 2023 writ of execution (Exhibit G), the February 6, 2024 notice of removal (Exhibit H), the magistrate’s findings dated May 1, 2024 (Exhibit I), the August 2, 2024 Order adopting the magistrate’s findings (Exhibit J), the September 24, 2024 Order of the Ninth Circuit (Exhibit K), the February 10, 2025 Order of the Ninth Circuit (Exhibit L), the June 7, 2022 Opinion from the First District (Exhibit M), and the Second Amended Answer and Counterclaims in the federal district court (Exhibit A to Reply RNJ), is granted. (Evid. Code §§ 452, 453.)

D. Discussion

1. Clean up costs and consultant fees

In his declaration, Timothy DeMartini states that Exhibit A to his declaration is a transaction list of “all the invoices paid in relation to the San Anselmo property including environmental clean-up costs and consultants’ fees for the time period since the Court’s last apportionment of fees and cost, a calculated 7% interest on these costs, and copies of the invoices and payment checks thereto. I have subsidized the costs for the remediation out of personal resources since the property’s cash flow could not support it.” (Declaration of Timothy DeMartini, ¶2.)

The first page of Exhibit A reflects payment of three invoices from Environmental Audit Inc., dated June 5, 2023 ($4,219.52), December 6, 2023 ($4,071.44), and January 8, 2024 ($2,295), totaling $10,585.96. Exhibit A also includes copies of the invoices themselves and the checks that paid those invoices. The invoices show that the work performed was for conducting groundwater monitoring, analytical testing of samples, preparing reports, and responding to comments from the California Department of Toxic Substances Control (“DTSC”).

Michael and Renate DeMartini argue in their Opposition that there is no showing that these costs and fees were incurred for the common benefit because the DTSC continues to oversee investigation and response activities for the Property and the Court appointed a receiver to oversee property management and preservation. Despite these processes already in place, the Timothy Group elected to undertake independent environmental activities and interactions with DTSC. Michael and Renate also argue that the attorney’s fees incurred relating to the remediation could reflect Timothy’s preferred environmental strategies rather than a benefit shared equally by all co-owners.

James and Ruth DeMartini have filed a short Response in which they state that they have not had a meaningful opportunity to participate in or approve the consultant activities or expenditures and thus any finding that these costs were incurred for the common benefit is premature. Both sets of co-owners (Michael and Renate, and James and

Ruth) state that they reserve their right to seek a future DTSC determination regarding the proper allocation of environmental responsibility and costs.

In its Reply, the Timothy Group argues that the remediation work that was done is required by both this Court and the state. Until the DTSC clears the property, the environmental work is not complete. The remediation is a prerequisite for the Property to be sold as ordered by the Court under the direction of the referee. Thus the money spent in achieving remediation is entirely for the common benefit as it will effectuate the sale of the Property as ordered.

The Court will order apportionment of the $10,585.96 as requested by the Timothy Group. In its opinion dated June 7, 2022, the Court of Appeal addressed similar arguments made by Michael and Renate here and rejected them, stating: “The first apportionment order issued by the trial court included apportionment of the remediation costs paid by Timothy. At the time, the court had already appointed a referee and a receiver, the DTSC had already exercised its jurisdiction, and the Quik Stop matter had been resolved.

Even Michael conceded in his opposition to the first apportionment order that the Timothy Group’s request for attorney fees and costs relating to posttrial management and environmental work at the Property ‘should be apportioned among the parties according to interest.’ He indicated that he had ‘no objection to this apportionment, as these costs-at least in theory-are incurred for the common benefit of all the parties.’ In the present appeal, he does not explain what has changed since the first order was issued that would cause the current fees and costs not to have been incurred for the common benefit, or to be otherwise unauthorized.

Indeed, insofar as the environmental remediation appears to be a prerequisite for the sale of the Property, it is difficult to imagine how money spent towards achieving such remediation could be understood as being for anything other than the common benefit. [FN] We conclude the court did not err in determining that the expenses Timothy has continued to advance towards the Property’s environmental remediation were properly incurred for the common benefit of the parties.” (RJN Exh. M at pp. 14-15.)

The same reasoning applies to the present motion and the Court adopts it here. Each co-owner group’s share of the $10,585.96 is $1,323,25.

2. Attorney’s fees relating to environmental cleanup

The Timothy Group submits the declaration of Peter Kleinbrodt to support its request for allocation of $20,277 in attorney’s fees incurred in relation to environmental cleanup. Unfortunately, Mr. Kleinbrodt’s declaration states only: “Of the fees sought, $20,277.00 were categorized as being incurred in relation to the environmental efforts on the property . . . .” The timesheets he attaches reflect work both on environmental cleanup issues and work to collect unpaid costs from Michael and Renate without highlighting or identifying specific entries relating to environmental cleanup as opposed to collection costs.

While the hourly rates charged are reasonable, the Court needs additional information on these costs. The Court will allow the Timothy Group to submit a supplemental declaration or documentation within 10 days from the date of the hearing.

3. Attorney’s fees relating to collection of amounts due under previous orders

The Timothy Group asks the Court to allocate $70,005.60 in attorney’s fees to Michael and Renate only, arguing that Timothy was forced to pay these amounts to collect amounts due from prior allocation orders. The Timothy Group argues that Michael and Renate attempted to evade having to pay these amounts for years, which required Timothy to engage in enforcement and collection efforts. Specifically, the Timothy Group argues that after Michael and Renate failed for three years to pay their allocated $98,870.96 portion of costs pursuant to the June 2020 Order, Timothy obtained a writ of execution on the amount owed. (Request for Judicial Notice (“RJN”) Exhs.

C, F.) Then, after Michael and Renate failed to timely pay their allocated $11,433.15 portion of costs pursuant to the November 2023 Order, Timothy obtained a writ of execution for the updated amount owed. (RJN Exhs. D, G.) Timothy then sought to execute on a property in Nevada County, California in which Michael and Renate held a minority interest, initiating an ancillary action for an order for the sale of the property. (RJN Exh. H.) Michael and Renate removed the ancillary action to federal court, asserted federal counterclaims, and sought a federal stay to block enforcement of the June 2020 and November 2023 Orders. (RJN Exhs.

H, I.) Timothy filed motions to dismiss the federal action and that action was eventually dismissed. (RJN Exhs. I, J.) Michael and Renate appealed and the Ninth Circuit dismissed their appeal. (RJN Exh. K.) Michael and Renate filed a motion for reconsideration, which was denied. (RJN Exh. L.) The Timothy Group states that Timothy incurred $70,005.60 in attorney’s fees seeking reimbursement of the allocated costs ordered in the June 2020 and November 2023 Orders.

The Court declines to allocate the $70,005.60 to Michael and Renate in the context of this allocation motion, which is brought pursuant to Code of Civil Procedure Section 874.010, et seq. It does not appear that the legal work at issue was done for the common benefit, but rather for Timothy to recoup his personal costs of collection against Michael and Renate. The other owners are not involved and do not benefit from this process. This, of course, does not prevent Timothy from otherwise collecting attorney’s fees against Michael and Renate through other means.

The cases cited by Timothy are distinguishable from the issue at hand. In Orien v. Lutz (2017) 16 Cal.App.5th 957, the court merely acknowledged that attorney’s fees can be incurred for the common benefit in a partition action and that allocation can be adjusted if a party unduly exacerbates a dispute. In Lin v. Jeng (2012) 203 Cal.App.4th 1008, the court held that a court can apportion attorney’s fees based on equitable considerations. The issue here is whether the fees incurred by Timothy were incurred for the common benefit of the owners, and the Court concludes that they were not.

Again, the Court’s ruling is based on the specific motion before it. The ruling is not intended to address whether Timothy is entitled to collect attorney’s fees or costs against Michael and Renate in the context of a different type of motion or proceeding.

4. Interest

The Timothy Group’s request for interest at a rate of 7% is granted. In Exhibit A of his declaration, Timothy calculates the interest that has accrued on the amounts paid on the invoices for remediation and cleanup work to be $3,913.72. No party disputes this calculation. Each coowner group’s share is $489.22.

II. Motion to Vacate or Modify Judgment

The Timothy Group seeks to vacate or modify a Renewal of Judgment filed by Michael and Renate.

A.

Procedural Background

The parties’ papers reflect that in 2016, in connection with a cost allocation order, the Court awarded Michael and Renate allocation of their fees from the Timothy Group of $33,808. An order was entered on January 20, 2016. An appeal followed and was resolved in 2018.

On January 13, 2026, Michael filed an Application for and Renewal of Judgment (“Renewal of Judgement”). The Renewal of Judgment identified the original judgment date as January 2016, the original judgment amount as $33,808, Michael as the judgment creditor and Timothy as the judgment debtor, and the total renewed judgment amount as $48,800.46. Of this amount, $28,316.48 was for accrued interest. The Renewed Judgment reflects a credit of $13,368.84.

B. Standard

Code of Civil Procedure Section 683.170 provides: “(a) The renewal of a judgment pursuant to this article may be vacated on any ground that would be a defense to an action on the judgment, including the ground that the amount of the renewed judgment as entered pursuant to this article is incorrect . . . (b) Not later than 60 days after service of the notice of renewal pursuant to Section 683.160, the judgment debtor may apply by noticed motion under this section for an order of the court vacating the renewal of the judgment . . . . (c) Upon the hearing of the motion, the renewal may be ordered vacated upon any ground provided in subdivision (a), and another and different renewal may be entered, including, but not limited to, the renewal of the judgment in a different amount if the decision of the court is that the judgment creditor is entitled to renewal in a different amount.”

The moving party bears the burden of proving by a preponderance of the evidence that renewal of a judgment should be vacated. (American Contractors Indemnity Co. v. Hernandez (2022) 73 Cal.App.5th 845, 848.)

C.

Discussion

The Timothy Group moves to vacate or modify the Renewal of Judgment on the ground that Michael and Renate are not entitled to the interest included in the Renewal of Judgment. The Timothy Group states that it tendered checks to Michael and Renate in early 2018 for the full amount of the 2016 judgment, which stopped any claim of accruing interest thereon.

Code of Civil Procedure Section 685.030 addresses satisfaction of money judgments. Subsection (d) provides: “(d) For the purposes of subdivisions (b) and (c), the date a money judgment is satisfied in full or in part is the earliest of the following times: (1) The date satisfaction is actually received by the judgment creditor. (2) The date satisfaction is tendered to the judgment creditor or deposited in court for the judgment creditor. (3) The date of any other performance that has the effect of satisfaction.”

“The Legislature has declared interest on a judgment ceases to accumulate on the date a check in the amount of the judgment and accumulated interest is delivered to the judgment creditor, notwithstanding the fact that the honoring of the check may take a period of days. (§ 685.030, subd. (d)(2).)” (Gray1 CPB, LLC v. SCC Acquisitions, Inc. (2015) 233 Cal.App.4th 882, 896.) “[T]here is no reason a judgment creditor should continue to earn interest on its judgment after refusing payment of the judgment.” (Ibid.)

The Timothy Group tendered payment to Michael and Renate through six checks. On May 15, 2018, Michael returned four of the checks to Mr. Kleinbrodt noting that he was confused by some of the writing on the checks and asking for clarification whether the checks were intended to address a portion or all of the amount due. (See Kleinbrodt Decl., Exh. A.) He also asked for new checks that address the court’s order. The four returned checks (from Timothy/Margie, Newell/Sally, Mark, and David/Nancy), were each for $6,684.42 and were dated late December 2017 or early January 2018.

Two of these checks stated in the memo portion that of the $6,684.42, $5,634.67 was for the judgment and $1044.75 was for interest. One check stated that it was for “Marin court fees”, and one stated it was for “2016 court principal & int. payoff 2-26-2016 court”. Michael’s letter indicated that “the other two checks of the six tendered were considered ok.” These checks were from Jon/Lynne and Dan/Linda and were also for $6,684.42. (See Declaration of Michael DeMartini, Exhs. C and D.)

The Timothy Group argues that based on Michael and Renate’s acceptance of two of the identical six checks, the six checks comprised a full tender for both principal and interest. As reflected in the memo portion of two checks, $5,634.67 was for each couple’s principal share of the judgment ($5,634.67 x 6 = $33,808). Michael and Renate never objected to the interest paid by the two checks they accepted.1 Therefore, Michael and Renate cannot claim any continuing interest on amounts owed under the January 20, 2016 order after the tender. The Timothy Group contends that after removing the $28,316.48 claimed in interest, the Renewal of Judgment amount should be $20,484.16.

Michael and Renate argue that they received no response to Michael’s request for clarification and for replacement checks, and thus no renewed tender. They argue that they returned the four checks after consulting with counsel. Two of the checks were made payable to Michael only and not Michael and Renate, while other checks contained writings that created uncertainty regarding the characterization of the Court’s order and the effect of negotiating the checks.

The issue before the Court is whether the four returned checks constituted sufficient tender so as to stop the accrual of interest at the time they were delivered to Michael and Renate. The Court finds that they did.

On an initial note, Michael and Renate do not appear to dispute that a payment of $40,106.52 ($6,684.42 x 6) would have satisfied the judgment at the time the checks were delivered to them. They accepted the two checks from Lynne/Jon and Dan/Linda in this amount,

1 These two accepted checks are reflected in the credit in the Renewal of Judgment.

and those checks were also dated late December 2017. (Michael DeMartini Decl., Exh. D-1, D- 5.) Therefore, the sufficiency of the amount of the tender by the Timothy Group is not at issue.

“ʽThe tenderer must do and offer everything that is necessary on his part to complete the transaction, and must fairly make known his purpose without ambiguity, and the act of tender must be such that it needs only acceptance by the one to whom it is made to complete the transaction.’” (Gaffney v. Downey Savings & Loan Assn. (1988) 200 Cal.App.3d 1154, 1165 [citation omitted] [emphasis in original].) The four rejected checks satisfied this requirement, as all four checks were for the correct amount for each payor’s share and all referenced the court proceedings.

Further, Michael did not identify his objections to the four checks with any specificity in his letter when he returned the checks. “The person to whom a tender is made must, at the time, specify any objection he may have to the money, instrument, or property, or he must be deemed to have waived it; and if the objection be to the amount of money, the terms of the instrument, or the amount or kind of property, he must specify the amount, terms, or kind which he requires, or be precluded from objecting afterwards.” (Code Civ. Proc. § 2076; see also Civ. Code § 1501.) This provision is “intended to enable a debtor to pay his debt without being later confronted with hidden objections which could have been obviated.” (Gaffney, 200 Cal.App.3d 1154, 1166.)

Here, Michael’s letter to Mr. Kleinbrodt stated only: “[T]he court ordered that the payments be made on or before February 26, 2016. The writings your clients are providing in the memo of the check appears to be confusing to me, The amount paid is only a portion of the amount ordered for Timothy’s Group but it is not indicated as only a portion. Please specify that the payment is intended to address a portion or all of the amount owed by the Timothy Group including interest to date at 10% per the order of January 16, 2016.

Please provide new check(s) that addresses the order of the court at the earliest opportunity.” Michael did not object that the payee(s) on any of the four checks was incorrect (Michael as opposed to Michael and Renate), or that the amount of the check was insufficient to satisfy each payor couple’s portion of the order. Indeed, the letter then followed with a comment that the “other two checks of the six tendered were considered ok”. The other two checks were for the same amount, dated around the same time, and were accepted and cashed by Michael and Renate.2

The four checks returned by Michael and Renate constituted legally sufficient tender. As a result, interest on the total amount of the four checks ceased to accumulate as of the date they were delivered to Michael and Renate under Section 685.030 (d)(2). The Renewal of Judgment will be reduced by the amount of the interest included, i.e., $28,316.48, making the total amount of the Renewal of Judgment $20,484.16.

2 Even though Michael’s letter also stated that checks were supposed to be made before February 2016, and that the checks did not state they were for a portion of the amount owed, he also states he accepted the two other checks. Those two other checks were also dated December 2017, and also did not state whether they were for a portion owed. Further, Michael and Renate do not identify timing, or a failure to state whether payment was for a portion of what was owed, as a reason why the four checks were returned in Exhibit C to Michael’s declaration.

All parties must comply with Marin County Superior Court Local Rules, Rule 2.10(B) to contest the tentative decision. Parties who request oral argument are required to appear in person or remotely by ZOOM. Regardless of whether a party requests oral argument in accordance with Rule 2.10(B), the prevailing party shall prepare an order consistent with the announced ruling as required by Marin County Superior Court Local Rules, Rule 2.11.

The Zoom appearance information for July, 2026 is as follows: https://marin-courts-ca-gov.zoomgov.com/j/1615487764?pwd=Ob4B5J7LLKcpnkxzJjjEOSHNzEGafG.1

Meeting ID: 161 548 7764 Passcode: 502070

If you are unable to join by video, you may join by telephone by calling (669) 254-5252 and using the above-provided passcode. Zoom appearance information may also be found on the Court’s website: https://www.marin.courts.ca.gov