Marriage of Kimbrell CA4/1

Filed 9/8/23 Marriage of Kimbrell CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re the Marriage of HANNA and
JAMES KIMBRELL.
D078459
HANNA PEREZ,

Appellant and Cross- (Super. Ct. No. D563107)
respondent,
v.

JAMES KIMBRELL,

Respondent and Cross-
appellant.

APPEAL from a judgment of the Superior Court of San Diego County,
Christine K. Goldsmith, Temporary Judge. (Pursuant to art. VI, § 21 of the
Cal. Const.) Reversed in part and affirmed as modified.

David A. Kay for Appellant and Cross-respondent.
Stephen Temko for Respondent and Cross-appellant.
Appellant and cross-respondent Hanna Kimbrell Perez (Wife) and
respondent and cross-appellant James Kimbrell (Husband) were married for

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six and one-half years. At the time of their marriage, Husband owned or
controlled through a trust, as his separate property, 77 percent of the shares
of La Mesa R. V. Center, Inc. (LMRV), a business involved in the sales and
service of recreational vehicles (RVs). During their marriage, the value of
LMRV increased greatly, from $22,784,000 in 2010 to $106,165,000 in 2016.
During their marriage, the parties also purchased a home in Del Mar (the
Property) for about $6.3 million with down payments from Husband and Wife
and the remaining $4.7 million in funds from LMRV.
In 2016, Wife filed a petition for dissolution of their marriage. In 2020,
a trial was conducted before the Honorable Christine K. Goldsmith (Ret.), a
privately compensated temporary judge to which the parties had stipulated
to decide the matter pursuant to California Rules of Court, rule 2.831. After
trial, the court entered its judgment of dissolution, which attached and
incorporated its statement of decision regarding various contested issues.
Regarding LMRV, the court apportioned the increase in the value of LMRV
between the community’s and Husband’s separate property interests by
applying the approach in Van Camp v. Van Camp (1921) 53 Cal.App. 17 (Van
Camp), finding that Husband was not the principal factor accounting for the
increased value of LMRV during the marriage. The court found that the
community was undercompensated by LMRV for Husband’s services during
the marriage in the amount of $837,000 and then reduced that amount by
$115,000 for jewelry purchased for Wife with community funds paid from
LMRV in excess of Husband’s draw account, leaving a net amount of
$722,000 that was divided equally between the parties for their community
shares. The court then awarded Husband his ownership interest in LMRV as
his separate property.

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 Regarding the purchase of the Property, the court found that the initial
transfer of $4.7 million from LMRV to the escrow account was a loan by
LMRV, which was documented with an unsecured promissory note signed by
the parties that was payable on demand. A few months later, the parties
obtained a $2 million loan from Citibank, which loan was secured by a first
trust deed on the Property, and the loan proceeds were used to pay down the
balance of the LMRV loan. Thereafter, the parties signed a new promissory
note in the face amount of $4.7 million payable to LMRV, which note had a
two-year term and was secured by a second trust deed on the Property. The
court found that the second LMRV promissory note replaced the first LMRV
promissory note and that the then-current outstanding balance of the second
note was $2,838,145.66. The court found that the Property was community
property and ordered that it be sold and the proceeds be divided equally
between the parties after payment, among other things, of its Family Code

section 26401 reimbursement awards to Husband of $642,993 and to Wife of
$550,000.
On appeal, Wife contends that the court erred by: (1) applying the
approach in Van Camp, supra, 53 Cal.App. 17, rather than the approach in
Pereira v. Pereira (1909) 156 Cal. 1 (Pereira), in apportioning the interests of
the community and Husband in LMRV; (2) deducting $115,000 from the gross
amount of the community’s undercompensation by LMRV for jewelry
purchased with LMRV funds and given by Husband to her; and (3) implicitly
finding the source of the initial $4.7 million in funds from LMRV to purchase
the Property was Husband’s separate property, not finding the second LMRV
note and trust deed were invalid for lack of consideration, and finding

1 All statutory references are to the Family Code unless otherwise
specified.
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Husband did not breach his fiduciary duties to her in arranging the first and
second LMRV loans and using the proceeds of the Citibank loan to pay down
the LMRV loan.
In his cross-appeal, Husband contends that substantial evidence does
not support the court’s section 2640 reimbursement award of $550,000 to
Wife because: (1) his transfers of funds to her LMRV account did not
transmute those funds to her separate property; and (2) she did not present
any documentary evidence tracing the source of the funds that she
contributed toward the purchase price for the Property to her separate
property.
As discussed below, we reject Wife’s contentions and agree, in part,
with Husband’s contentions. In particular, we agree that there is insufficient
documentary or other evidence to support $450,000 of the court’s award of
$550,000 to Wife for section 2640 reimbursement and therefore reverse and
vacate that award to that extent. Rather than remanding the matter, we
elect to modify the judgment accordingly and affirm the judgment as so
modified.
FACTUAL AND PROCEDURAL BACKGROUND
In 1972, Husband, along with others, founded LMRV. On March 19,
2010, Husband, then 68 years old, and Wife, then 48 years old, married. At
the time of their marriage, the shares of LMRV’s stock were owned as follows:
77 percent by Kimbrell Family LLC (KF LLC), of which Husband was the
managing officer and principal owner, 19.25 percent by James Walters, and
3.75 percent by LMRV’s employee stock option plan (ESOP). In 2010, LMRV
was valued at $22,784,000.
By the end of 2015, LMRV had repurchased all of the shares held by
Walters and the ESOP, and, after giving portions of his interest in KF LLC to

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his children for estate planning purposes, Husband owned 21.4 percent of KF
LLC and LMRV.
In February 2016, the parties purchased the Property, a home on 27th
Street in Del Mar, for about $6.3 million. The purchase price was primarily
paid with down payments made by each of Husband and Wife and a $4.7
million transfer of funds from LMRV that was arranged by Husband. LMRV
considered its transfer to be a loan and on or about February 1, the parties
signed an unsecured promissory note in the principal amount of $4.7 million
that was payable on demand. In late April, the parties obtained a $2 million
loan from Citibank, which was secured by a first trust deed on the Property,
and the proceeds were then used to pay down the balance of the $4.7 million
loan from LMRV. On May 19, the parties signed a second promissory note in
the face amount of $4.7 million in favor of LMRV, which loan had a two-year
term and was secured by a second trust deed on the Property.
On about September 1, 2016, the parties separated and, one week later,
Wife filed a petition for dissolution of their marriage. At that time, LMRV
was valued at $106,165,000. In 2019, the parties stipulated to have their
dispute decided by a privately compensated temporary judge, who then
conducted a nine-day trial in 2020. On June 4, 2020, the court issued its 31-
page statement of decision. On November 4, 2020, the court entered its
judgment, which attached and incorporated its statement of decision. Wife
filed a notice of appeal challenging the judgment and Husband filed a notice
of cross-appeal.

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 DISCUSSION
I
General Principles of Appellate Review
A
Presumption of correctness
On appeal, the judgment or order being challenged is presumed to be
correct and an appellate court generally reviews the trial court’s ruling and
not its reasons in support of its ruling. (Jameson v. Desta (2018) 5 Cal.5th
594, 608-609 (Jameson); Young v. California Fish & Game Com. (2018) 24
Cal.App.5th 1178, 1182-1193.) “All intendments and presumptions are
indulged to support [the judgment or order] on matters as to which the record
is silent, and error must be affirmatively shown [by the appellant].”
(Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham).) “[T]he
burden is on an appellant to demonstrate, on the basis of the record
presented to the appellate court, that the trial court committed an error that
justifies reversal of the judgment.” (Jameson, at p. 609.)
To overcome the presumption of correctness, an appellant must provide
an adequate record on appeal and present argument and legal authority on
each contention showing that the trial court erred. (Jameson, supra, 5
Cal.5th at pp. 608-609; Hewlett-Packard Co. v. Oracle Corp. (2021) 65
Cal.App.5th 506, 565.) An appellate court does not act as appellant’s counsel
and furnish a legal argument showing that the trial court erred. (Niko v.
Foreman (2006) 144 Cal.App.4th 344, 368.) Accordingly, if an appellant fails
to support a contention with reasoned argument and citations to authority,
an appellate court may treat that contention as waived and decline to
consider its merits. (People v. Stanley (1995) 10 Cal.4th 764, 793 (Stanley);

6
Salas v. California Dept. of Transportation (2011) 198 Cal.App.4th 1058,
1074 (Salas).)
B
Standards of review on appeal
In addressing each contention on appeal, the threshold issue is to
determine the proper standard of review to apply. (Clothesrigger, Inc. v. GTE
Corp. (1987) 191 Cal.App.3d 605, 611.) An appellant’s contentions should be
tailored to the applicable standard of appellate review and a failure to
acknowledge or apply the proper scope of review may be considered to be a
concession of a lack of merit for that contention. (Sonic Manufacturing
Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465
(Sonic Manufacturing Technologies, Inc.).) The three primary standards for
appellate review are: (1) the substantial evidence standard of review; (2) the
abuse of discretion standard of review; and (3) the independent, or de novo,
standard of review. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and
Writs (The Rutter Group 2022) ¶¶ 8:33 - 8:35, p. 8-19.)
1. Substantial evidence standard of review
When a trial court has resolved a disputed factual issue, we apply the
substantial evidence standard of review. (Winograd v. American
Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.) Substantial evidence is
not synonymous with any evidence or a mere scintilla of evidence, but is only
evidence that is of ponderable legal significance, reasonable in nature,
credible, and of solid value. (Conservatorship of O.B. (2020) 9 Cal.5th 989,
1005-1006; Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873.) The
testimony of a single credible witness may constitute substantial evidence.
(In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) In applying the
substantial evidence standard of review, we accept all evidence supporting

7
the trial court’s judgment or finding, completely disregard contrary evidence,
and draw all reasonable inferences from the evidence to support the
judgment or finding. (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570,
581-582 (Schmidt).) We determine only “if substantial evidence exists to
support [the judgment or finding] in favor of the prevailing party, not to
determine whether substantial evidence might support the losing party’s
version of events.” (Id. at p. 582.)
Furthermore, at a bench trial, the trial court is the sole judge of
witness credibility and may disregard the testimony, contradicted or
uncontradicted, of any witness if there is any rational ground for doing so.
(Schmidt, supra, 44 Cal.App.5th at p. 582; Davis v. Kahn (1970) 7 Cal.App.3d
868, 874 (Davis).) We cannot reweigh the evidence, substitute our own
inferences from the evidence, or make different assessments of credibility
from the trial court’s assessments. (Schmidt, at p. 582; In re Ana C. (2012)
204 Cal.App.4th 1317, 1329 (Ana C.).) An appeal is not a “retrial” of the case
or an opportunity for an appellant to rehash arguments about the strength of
the evidence. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 102
(Paterno); Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs,
supra, at ¶ 9:23, p. 9-7.) We defer to a trial court’s determination of
credibility or other factual issues because it has had the benefit of observing
the demeanor of witnesses and is therefore in a better position than an
appellate court to assess credibility. (In re Marriage of Boswell (2014) 225
Cal.App.4th 1172, 1175; Catherine D. v. Dennis B. (1990) 220 Cal.App.3d 922,
931.)
When an appellant challenges the sufficiency of evidence to support a
judgment or finding, the appellant’s opening brief must set forth all the
material evidence on that issue and cannot merely state facts favorable to the

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appellant. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) The
appellant must provide a fair summary of the evidence. (Myers v. Trendwest
Resorts, Inc. (2009) 178 Cal.App.4th 735, 739.) When an appellant’s opening
brief states only evidence favorable to the appellant’s position and ignores
evidence supporting the judgment or finding, we may treat the substantial
evidence contention as waived and presume the record contains evidence to
support the trial court’s factual findings. (Delta Stewardship Council Cases
(2020) 48 Cal.App.5th 1014, 1072; Doe v. Roman Catholic Archbishop of
Cashel & Emly (2009) 177 Cal.App.4th 209, 218.) In such cases, we are not
required to undertake an independent examination of the record on appeal.
(Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409-410.)
2. Abuse of discretion standard of review
When an appellant challenges a trial court’s discretionary decision, we
apply the abuse of discretion standard of review. Under that standard of
review, we will find reversible error only if the trial court clearly abused its
discretion and there was a miscarriage of justice. (Blank v. Kirwan (1985) 39
Cal.3d 311, 331 (Blank).) A trial court abuses its discretion when its action is
arbitrary, capricious, or exceeds the bounds of reason. (In re Cortez (1971) 6
Cal.3d 78, 85; Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 695;
Denham, supra, 2 Cal.3d at p. 566.) It is the appellant’s burden on appeal to
show an abuse of discretion. (Blank, at p. 331.) We will find an abuse of
discretion by a trial court only when we conclude that under all the
circumstances, viewed most favorably in support of the decision, no judge
reasonably could have made that decision. (Estate of Sapp (2019) 36
Cal.App.5th 86, 104.)

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 3. Independent, or de novo, standard of review
When an appellant challenges a trial court’s decision regarding a pure
question of law on undisputed facts, we apply the independent, or de novo,
standard of review. (Aryeh v. Canon Business Solutions, Inc. (2013) 55
Cal.4th 1185, 1191 (Aryeh); Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799
(Ghirardo).) Under that standard, we do not defer to the trial court’s ruling
or reasoning and instead decide the matter anew. (Aryeh, at p. 1191;
Ghirardo, at p. 799.) For example, we decide independently the proper
interpretation of a statute and are not bound by the trial court’s
interpretation. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527.) Likewise,
we independently decide the question of law regarding the correct application
of an interpreted statute to undisputed facts. (International Engine Parts,
Inc. v. Feddersen & Co. (1995) 9 Cal.4th 606, 611.)
WIFE’S APPEAL
II
LMRV Apportionment
Wife contends that the trial court erred by applying the approach in
Van Camp, supra, 53 Cal.App. 17, rather than the approach in Pereira,
supra, 156 Cal. 1, in apportioning the interests of the community and
Husband in LMRV. In particular, she argues the evidence showed that
Husband was the chief contributing factor in the increase in LMRV’s value
during their marriage.
A
General principles regarding apportionment of increase
in value of separate property business

In general, under California’s community property law, property
acquired during marriage is presumptively community property (§ 760), and
property acquired by a spouse before marriage, property acquired during
10
marriage by gift, bequest, devise, or descent, and profits from such property,
are presumptively the separate property of a spouse (§ 770, subd. (a)). (In re
Marriage of Brandes (2015) 239 Cal.App.4th 1461, 1472 (Brandes).)
Although income from separate property and the intrinsic increase in the
value of separate property is separate, “the fruits of the community’s
expenditures of time, talent, and labor are community property.” (In re
Marriage of Dekker (1993) 17 Cal.App.4th 842, 850 (Dekker).)
In Brandes, we stated: “When a spouse’s personal efforts increase the
value of his or her separate property business, ‘it becomes necessary to
quantify the contributions of the separate capital and community effort to the
increase,’ because the ‘community is entitled to the increase in profits
attributable to [the] community endeavor.’ [Citations.]” (Brandes, supra, 239
Cal.App.4th at p. 1472.) “California courts have developed two alternative
approaches to allocating business profits between separate and community
estates.” (Id. at pp. 1472-1473) The two approaches are the Pereira approach
and the Van Camp approach. (Id. at p. 1473.) “ ‘Pereira is typically applied
where business profits are principally attributed to efforts of the
community.’ ” (Dekker, supra, 17 Cal.App.4th at p. 853.) In applying the
Pereira approach, a trial court “allocate[s] a fair return to the separate
property investment and allocate[s] the balance of the increase value to
community property as arising from community efforts.” (Id. at pp. 852-853.)
“Conversely, Van Camp is applied where community effort is more than
minimally involved in a separate business, yet the business profits accrued
are attributed to the character of the separate asset.” (Id. at p. 853.) In
deciding whether to apply the Pereira approach or the Van Camp approach,
the crucial determination for the trial court is whether the spouse’s
community efforts or factors other than the spouse’s efforts were the chief

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contributing factors for the business’s increased value. (Beam v. Bank of
America (1971) 6 Cal.3d 12, 18 (Beam); Logan v. Forster (1952) 114
Cal.App.2d 587, 599.) Alternatively stated, the question is whether the
business’s increased value was “principally attribut[able] to” the spouse’s
efforts or instead factors other than the spouse’s efforts. (Dekker, at p. 853.)
When applying the Van Camp approach, a trial court “determine[s] the
reasonable value of the community’s services, allocate[s] that amount to
community property and the balance to separate property.” (Ibid.)
In selecting an apportionment approach, a trial court is not bound by
any precise criterion or standards. (Beam, supra, 6 Cal.3d at p. 18.) Rather,
the court may select whichever approach or formula that will achieve
substantial justice between the parties (i.e., that approach which is most
appropriate and equitable in a particular situation) depending on whether
the character of the capital investment in the separate property or the
personal activity, ability, and capacity of the spouse is the chief contributing
factor in the realization of income and profits. (Ibid.)
Although appellate courts generally apply the substantial evidence
standard in reviewing a trial court’s characterization of property as separate
or community, they apply the abuse of discretion standard in reviewing a
trial court’s selection of an apportionment approach and its allocation of the
community’s interest in a spouse’s separate business. (In re Marriage of
Brooks (2019) 33 Cal.App.5th 576, 588 (Brooks); Brandes, supra, 239
Cal.App.4th at p. 1473; Dekker, supra, 17 Cal.App.4th at p. 849.) A trial
court abuses its discretion when it exceeds the bounds of reason in the
circumstances of the case by acting outside the permissible range of options
set by the legal criteria. (Brandes, at pp. 1473-1474; Denham, supra, 2
Cal.3d at p. 566.) The appellant has the burden on appeal to show an abuse

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of discretion. (Brandes, at p. 1473.) However, unless there is a clear case of
abuse of discretion and there has been a miscarriage of justice, we will not
substitute our opinion and thereby divest the trial court of its discretionary
power. (Ibid.) If there is a reasonable or fairly debatable justification for the
ruling, we will not set it aside. (Id. at p. 1474.)
We apply the substantial evidence standard in reviewing a trial court’s
findings of fact, including a finding on whether the contributions of other
persons, rather than a spouse’s contributions, caused the increase in the
value of a separate property business during marriage. (Brooks, supra, 33
Cal.App.5th at p. 593.) In reviewing a finding of fact, we determine whether
there is any substantial evidence, contradicted or uncontradicted, to support
that finding. (Brandes, supra, 239 Cal.App.4th at p. 1472; Schmidt, supra,
44 Cal.App.5th at p. 582.) All conflicts in the evidence, and all reasonable
inferences therefrom, are resolved in favor of the finding. (Brandes, at
p. 1472; Schmidt, at pp. 581-582.)
B
Trial evidence
At trial, the parties presented extensive percipient and expert
testimony and voluminous documentary evidence on the increase in value of
LMRV during the marriage and how that increase in value should be
apportioned between the community and Husband’s separate property.
Husband and many other LMRV managers and employees testified
regarding, among other things, LMRV’s management, business practices, and
sales growth and decline during the period from its formation in 1972

13
through the parties’ separation in 2016.2 As Husband notes, Walters and
OConnor testified that the RV industry has historically been cyclical in
nature and there was a correlation between the health of the economy and
the number of RVs sold by LMRV. Walters testified that the biggest factor in
LMRV’s growth was its taking advantage of a strong economy. For example,
the RV business had a downcycle in the late 1980’s and 1990’s when interest
rates were high, an upcycle after the September 11, 2001 attack, and then a
downcycle during the great recession that began in 2008. During the great
recession, LMRV, along with the entire RV industry, experienced precipitous
drops in RV sales because RVs are not necessities and, as a result, LMRV
reduced the number of its employees from about 1,500 in 2004 to 350 or 400
in 2009. As a result of the great recession, LMRV’s revenues decreased and
that decrease was not the result of anything Husband did or did not do.
Beginning in 2010, after the great recession, there was pent-up demand for
RVs and LMRV’s sales increased dramatically as “baby boomers” experienced
growth in their wealth (e.g., investments in the stock market and real estate)
and purchased RVs with historically low interest rate loans. That “meteoric”
growth in RV sales during that period of economic recovery was experienced
by the entire RV industry and not just LMRV. As a result of that industry-
wide growth, Upton testified that he could not give Husband credit for
LMRV’s growth during that period.
In addition to the evidence primarily attributing LMRV’s growth
during the marriage to the growth in the national economy after the great
recession, there was extensive testimony that LMRV’s growth was also
attributable to management employees other than Husband. Walters, Upton,

2 Specifically, Husband, Walters, Robert Upton, Timothy OConnor [sic],
Kelly Sundstrom, Jason Kimbrell (Jason), and Joanne Erwin testified at
trial.
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OConnor, Sundstrom, and Jason testified regarding their past and present
job titles and duties and those of other LMRV employees and described
LMRV’s management approach and practices. Until his retirement in 2015,
Walters was LMRV’s president and ran its weekly management meetings.
After Husband and Walters hired Upton as a salesperson in the early 1990’s,
Upton rose through the ranks of store manager, general sales manager, vice
president of sales, vice president of sales and services, senior vice president,
and, ultimately, president of LMRV in 2017. Sundstrom had been LMRV’s
controller since 1998 and was its chief accountant and regulatory compliance
manager. In 2004, Walters hired OConnor as LMRV’s chief financial officer
and, as such, he was responsible for LMRV’s banking relationships and
negotiations for leases and purchases. OConnor was known in the industry
as “Mr. RV” and his efforts for LMRV were described as “invaluable.” Jason
also rose through the ranks from salesperson in 1993 to, ultimately,
president of LMRV in 2018. Jason’s “lane” was managing manufacturer
relationships and LMRV’s inventory.
Each member of LMRV’s management team had his or her “lane” of
expertise. An expert in a certain lane would make his or her
recommendation regarding day-to-day operations and major business
decisions and then the management team would collectively discuss it and
then decide whether it agreed or not. Walters ran LMRV’s weekly
management meetings, which Husband never attended. During the parties’
marriage, Husband was not involved in decisions on day-to-day operations.
Regarding hiring and firing of key employees, borrowing money, spending
large amounts of money, major changes in inventory, and other major
business decisions, the management team would make a decision and then
submit its recommendation to Husband who had the “final say.” During the

15
marriage, Husband almost never exercised his veto power to reject a major

business decision made by the management team.3
LMRV’s management team was consistent from 2004 through 2015 and
its strong management team was one reason LMRV survived the great
recession during the late 1990’s. Jason testified that although Husband’s
efforts “definitely” contributed to LMRV’s growth, its growth was a “team
effort” and no one person was responsible for it. In particular, no one person
was responsible for LMRV’s growth in other states (i.e., Arizona, Florida, and
New Mexico). Jason testified that although no single employee was
responsible for LMRV’s growth, it was Upton who was primarily responsible
for managing LMRV’s culture and team building. In turn, Upton testified
that no one person was responsible for LMRV’s growth, because its
management employees functioned well as a team. OConnor concurred,
testifying that no one person was responsible for LMRV’s growth during the
parties’ marriage because its growth was “a market effect.” In the early
2000’s, without Husband’s involvement, Walters developed, and LMRV’s
management team adopted, LMRV’s core value that the “customer is the
king” and its acronym “FAMILY” (i.e., fun, attitude, make their day,
integrity, listen, and quality). Also, Walters and another employee developed
LMRV’s “everyday low price” marketing program. During the marriage,
Husband also had very little contact with manufacturers. Rather, Walters
and Upton primarily handled LMRV’s relationships with manufacturers.
OConnor’s strong relationships with banks enabled LMRV to survive the

3 One exception was when Husband disagreed with the management
team regarding whether to procure a lease for a Florida property (i.e., the
Boynton Beach project), but that lease and project ultimately did not go
forward. Also, before the marriage, Husband overrode the management
team’s decision only once (i.e., regarding LMRV’s purchase of a $19 million
airplane).
16
great recession. During that period, Husband had little contact with banks
and even less contact during the marriage. OConnor described Husband’s
role with banks as LMRV’s “figurehead.”
Compensation of LMRV’s management employees was linked to its
growth and net profits. About one-half of the management team’s
compensation was based on LMRV’s profits. In 2007, LMRV’s management
team improved its service department, which experienced dramatic growth
during the marriage. Also, LMRV’s existing centralized advertising program
contributed to LMRV’s growth during the marriage. During the marriage,
Husband had little, if any, involvement with LMRV’s customers or
technology.

There was also evidence presented regarding Husband’s health
problems and their impact on his involvement in the management of LMRV.
In February 2009, before the parties’ marriage, Husband suffered a heart
attack, which required multiple bypass surgery. His recovery took about one
and one-half years before he could visit store locations again. During his
recovery, LMRV’s management team ran the business and, even after his
return to the office, Husband worked a “lot less” and his involvement in the
business was limited.
Husband presented the expert testimony of Kimberly Linebarger and
Wife presented the expert testimony of Tony Yip. Each testified regarding
the valuation of LMRV, apportionment of its increase in value between the
community and Husband’s separate property, and reasonable compensation
to the community for Husband’s efforts during the marriage. Linebarger was
employed by Moss Adams and worked on business valuations for RV and
other vehicle dealers. Linebarger considered factors that affected LMRV’s
value, including external factors, such as the national and local economies

17
and industry trends, and internal factors, such as store locations, the
management team, manufacturing and banking relationships, customer
relationships, and business processes. She testified that the national
economic environment was “really impactful” on LMRV’s value, that RV sales
were related to discretionary income, and, when unemployment rates
decreased, RV sales increased. When the United States gross national
product (GNP) grew, sales in the RV industry as a whole, as well as LMRV’s
sales, also grew. In the areas in which LMRV had store locations, those local
economies followed the national trends. LMRV’s sales followed the general
trends of the RV industry and therefore its value was not tied to one specific
person or what was happening inside the company.
Linebarger also testified that the longer that a management team has
been in place, the less direction it would need. LMRV’s demonstrated ability
to open new store locations prior to the marriage showed it had an
established core for growth during the marriage and thereafter. She also
testified that before the marriage LMRV had strong relationships with
manufacturers, including with two of the top manufacturers, which
relationships were not dependent on Husband and gave LMRV a competitive
advantage in its markets. Likewise, LMRV’s relationships with banks were
dependent on OConnor, not Husband. LMRV’s relationships with its
customers were also not dependent on Husband or his personality. During
the marriage, LMRV’s management team continued to manage the business
as it had before the marriage and did not change its management strategy.
Linebarger testified that the increase in LMRV’s value during the
marriage was far more due to passive factors than active factors and was not
tied to one specific individual’s efforts. In particular, she opined that

18
Husband was not the “primary driver” of any increase in the value of LMRV
during the marriage, although he contributed to its growth.
In contrast, Yip testified that a very significant portion, or almost one-
half, of LMRV’s increase in value during the marriage was in part due to its
addition of new store locations, which he understood was because of
Husband’s efforts. Yip calculated the “EBITDA” (i.e., earnings before
interest, taxes, depreciation, and amortization) from LMRV’s new store
locations versus its established locations from 2010 through 2016. He
concluded that 39 percent of LMRV’s EBITDA during the marriage was due

to its new stores.4 Yip testified he accepted and adopted the $22,784,000
determination made by Moss Adams (Linebarger’s company) of LMRV’s value
on the date of marriage in 2010 and $106,165,000 on the date of separation in
2016, resulting in an increase of $83,381,000 in LMRV’s value during the
marriage. Applying his 39 percent attribution of EBITDA to new stores, he
calculated that 39 percent of LMRV’s increase in value, or $41,404,000, was
due to its opening of new stores. Yip also made calculations for
apportionment of LMRV’s increased value under both the Pereira and Van
Camp approaches because it was not within his expertise as a forensic
accountant to opine regarding which approach should be used. Rather, that
decision was ultimately for the trial court to make. Under the Pereira
approach, Yip calculated a range of $37,109,000 to $39,122,000 (using simple
interest for Husband’s separate property interest in LMRV of $8,772,000 on
the date of marriage) and, alternatively, a range of $34,078,000 to
$37,631,000 (using compound interest for his separate property interest) for

4 However, Linebarger later testified that Yip’s EBITDA approach
focused on gross revenues, and not net cash flow or profits, noting that the
new store locations in Florida did not become profitable until 2016.
19
the community’s interest in the increase in LMRV’s value.5 Under the Van
Camp approach, Yip calculated the reasonable compensation for Husband’s
services to LMRV during the marriage and found that the community had
been undercompensated by LMRV for his services by $837,000. On cross-
examination, Yip admitted that he had not valued any RV dealerships before
and had not performed an independent investigation regarding the economic
factors that affected LMRV during the marriage. He also admitted that he
had not spoken with any of LMRV’s management team members regarding
its expansion philosophy and addition of new stores. He also admitted that
he had not looked into how many hours Husband worked for LMRV or
whether he was fulfilling his duties to it during the marriage. He also
admitted that the factors to be considered in valuing LMRV included that it
was an asset intensive business and the experience of its management team.
C
Trial court’s decision
In its statement of decision, the court initially found that Husband had
made more than minimal contributions to the increase in LMRV’s value
during the marriage and therefore apportionment of that increased value
between the community and Husband’s separate property was required,
citing Brooks, supra, 33 Cal.App.5th at page 592. The court then stated that
it had broad discretion in selecting a formula for apportionment that would
achieve substantial justice between the parties. It noted that Wife argued it
should adopt the Pereira approach, while Husband argued it should adopt the

5 Yip also calculated a range of from $14,586,000 to $16,745,000 for the
community’s interest in LMRV’s increased value under an alternative
scenario considering Husband’s transfers or gifts of LMRV shares to his
children during the marriage.
20
Van Camp approach.6 The court described the two alternative
apportionment approaches, stating:
“Pereira is utilized when post-marriage growth of a
business is principally attributed to ‘the personal activity,
ability, and capacity of the spouse’ (Beam, supra, [6 Cal.3d
at p.] 18; Brandes, supra[,] [239 Cal.App.4th at p.] 1473),
while Van Camp is used when post-marriage growth is due
primarily to capital investment in the separate property or
factors other than the spouse’s particular efforts (Beam,
supra[,] at [p.] 18; Brandes, supra[,] at [p.] 1473). When
efforts of others in the company cause the increase in value
of the business, Van Camp may be the appropriate method
of apportionment (Brooks, supra, at [p.] 592; Brandes,
supra, at [pp.] 1469-1470).”
Considering the evidence presented at trial, the court found that
Husband was the principal force contributing to LMRV’s success during its
early years. However, it found that during the 2004 to 2009 period, Husband
and Walters expanded LMRV’s decisionmaking group to include OConnor,
Upton, Sundstrom, and others. The court found that an executive committee
“began making the real decisions about the trajectory of the company and
how and why it would expand.” That committee “centralized pricing,
advertising and oversights, which largely contributed to [LMRV’s] ultimate
success.” Walters ran the meetings of the executive committee. The
executive committee unanimously (and not Husband alone) decided to expand
by opening new stores in Arizona, New Mexico, Florida, and California. That
committee also handled LMRV’s day-to-day operations.
The court found that when Husband suffered a serious heart attack in
2009, the executive committee ran LMRV for two years while keeping him

6 As the court noted, neither party argued that a hybrid approach should
be applied. (Cf. Brandes, supra, 239 Cal.App.4th at p. 1473 [upholding trial
court’s application of hybrid approach to circumstances in that case].)
21
informed. After his return to LMRV at age 70, Husband’s involvement in
LMRV’s daily decisions was more limited and he generally worked 8 to 12
hours per week, unless traveling for business when he worked up to 24 hours
per week. The store managers ran their respective stores with able oversight
from Walters, Upton, OConnor, and Jason.
Importantly, the court found that “[t]he economy played no small role
in the success of [LMRV], as did [its] strong relationships with quality
manufacturers (e.g.[,] Winnebago and Tiffin) and with their banks.
[Citation.] Following the recession of 2007-2010, the pent[-]up demand for
[RVs] from baby boomers resulted in a substantial increase in the sales of
product at [LMRV].” During the recession, entities owned by Husband were
able to purchase improved real property at reduced prices. On recovery from
the recession, LMRV was prepared to open, and opened, new stores in other
markets, such as Arizona, New Mexico, and Florida. During the marriage,
RV shows, centralized advertising, and other marketing also contributed to
LMRV’s success.
The court found that although Husband, often along with Wife,
frequently traveled to Florida to check on store locations there, “that activity
alone, although time-consuming, does not suggest that [he] was the
qualitative driver of [LMRV’s] success during the years of this marriage.”
The court selected the Van Camp approach as the appropriate method of
apportioning the increase in LMRV’s value during the marriage between the
community and Husband’s separate property. The court reasoned:
“While the founder and ‘soul’ of the business, [Husband]
was not the principal factor accounting for the increasing
value of [LMRV] during the period of this marriage (March
2010 to September 2016). . . . [Husband] was recovering
from a heart attack and minimally involved in the business
for the first year of the marriage and never resumed a real

22
 full-time regimen or assumed the principal guiding role in
the business thereafter. He, along with others in his
management team, and the economy, and the business
strategies developed a decade prior to marriage all assisted
in making [LMRV] the success it is today.”
Applying the Van Camp approach, the court found that the community
had been undercompensated for Husband’s efforts during the marriage by
$837,000, finding that Yip’s analysis of the community’s undercompensation
to be more persuasive than Linebarger’s analysis. The court then deducted
$115,000 for community expenditures for jewelry that Husband purchased
for Wife with LMRV funds, resulting in a net undercompensation amount of
$722,000. It then found that Wife’s share of that amount was $361,000. The
court also awarded Husband his interest in LMRV as his separate property.
D
Section 2555
In challenging the trial court’s findings and apportionment of the
increased value of LMRV, Wife initially argues that we should review the
court’s findings and apportionment de novo under section 2555. That statute
provides: “The disposition of the community estate, as provided in this
division, is subject to revision on appeal in all particulars, including those
which are stated to be in the discretion of the court.” (§ 2555.) In support of
her argument that we should review this matter de novo, Wife asserts that
“the facts are essentially undisputed.”
We decline Wife’s suggestion that we review de novo the trial court’s
findings in dividing the parties’ community estate, including its decision to
apply the Van Camp approach in apportioning the increase in LMRV’s value
during the marriage between the community and Husband’s separate
property. First, contrary to Wife’s assertion, the facts are not “essentially
undisputed.” Instead, the facts were disputed by the parties during the nine-

23
day trial. In particular, on the issue of whether Husband was the chief
contributing factor in LMRV’s growth during the marriage, the parties
presented conflicting evidence and argued divergent inferences from their
evidence. Given the disputed evidence and inferences on that issue, we
conclude the appropriate standards of review are the substantial evidence
standard regarding the court’s findings of fact and the abuse of discretion
standard regarding the court’s selection of the appropriate approach for
apportionment of LMRV’s increased value between the community and
Husband’s separate property.
Second, Wife’s opening appellant’s brief does not cite, and we are
unaware of, any case in the past 50 years that has applied the section 2555
de novo review standard to a trial court’s selection of the Pereira or Van
Camp approach in apportioning the increase in value of a spouse’s separate
property business during the marriage between the community and that

spouse’s separate property.7 In any event, Wife has not carried her burden

7 As Husband notes, section 2555’s language originated in former
statutes that predated California’s adoption of its statutory scheme of “no-
fault” divorce and equal division of community property. (See, e.g., former
Civ. Code, § 146; Falk v. Falk (1941) 48 Cal.App.2d 762, 770-771.) As he
further notes, there appears to be only one recent case that has applied the
section 2555 standard of review. In In re Marriage of Mohler (2020) 47
Cal.App.5th 788, the appellate court concluded that the trial court erred by
applying an incorrect legal standard in awarding the community an
increased interest in a spouse’s separate property for his postseparation
possession of, and mortgage payments made for, that separate property. (Id.
at pp. 790-791.) Citing its authority under section 2555, the court vacated
that award and remanded the matter for the trial court to calculate the
community’s and the spouse’s separate property interests under the correct
legal standard. (Mohler, at pp. 797-798.) Because Mohler is factually and
procedurally inapposite to this case and appears to be exceptional in its
reliance on section 2555, it does not persuade us to apply the section 2555 de
novo standard in reviewing the trial court’s selection of the Van Camp
24
on appeal to persuade us that we should apply the section 2555 de novo
standard in lieu of the established substantial evidence and abuse of
discretion standards that appellate courts have consistently applied in
reviewing such determinations by trial courts. (See, e.g., Brooks, supra, 33
Cal.App.5th at pp. 588, 593; Brandes, supra, 239 Cal.App.4th at pp. 1472-
1473; Dekker, supra, 17 Cal.App.4th at p. 849.)
E
Analysis
In reviewing the trial court’s exercise of its discretion and selection of
the Van Camp approach to apportion LMRV’s increased value during the
marriage between the community and Husband’s separate property, we apply
the abuse of discretion standard and, in reviewing its underlying factual
findings related thereto, we apply the substantial evidence standard. (See,
e.g., Brooks, supra, 33 Cal.App.5th at pp. 588, 593; Brandes, supra, 239
Cal.App.4th at pp. 1472-1473; Dekker, supra, 17 Cal.App.4th at p. 849.)
Here, the trial court made a number of factual findings before selecting the
Van Camp approach. First, the court found that from 2004 to 2009, Husband
and Walters expanded LMRV’s decisionmaking group to more than seven
members, referring to it as LMRV’s executive committee. The court found
that committee, which was run by Walters and not Husband, made the “real
decisions” regarding LMRV’s trajectory and expansion, centralized its
pricing, advertising and oversights, and handled LMRV’s day-to-day
operations, all of which largely contributed to LMRV’s ultimate success.
There is substantial evidence to support those findings by the court. In
particular, as discussed above, Walters, Upton, OConnor, Sundstrom, and

approach in apportioning LMRV’s increased value during the marriage
between the community and Husband’s separate property.
25
Jason testified regarding their various job duties and those of other LMRV
employees and described LMRV’s management approach and practices.
Members of LMRV’s management team would make their recommendations
in their areas of expertise regarding day-to-day operations and major
business decisions and then the management team would collectively discuss
those recommendations and decide whether it agreed or not. During the
parties’ marriage, Husband was not involved in decisions on LMRV’s day-to-
day operations and, with just one exception, never exercised his veto power
during the marriage to reject a major business decision made by the
management team.
Second, the court found that when Husband suffered a serious heart
attack in 2009, the executive committee ran LMRV for two years and, even
after his return to work, his involvement in LMRV’s daily decisions was more
limited and he generally worked only 8 to 12 hours per week. There is
substantial evidence to support those findings. In particular, OConnor,
Walters, and Upton testified regarding Husband’s absence from LMRV
during his recovery from heart surgery and his limited involvement in its
management and business thereafter.
Third, the court found that the economy “played no small role” in
LMRV’s growth during the marriage, noting that during the economic
recovery that followed the recession of 2007 through 2010, there was pent-up
demand for RVs that resulted in a substantial increase in LMRV’s sales.
There is substantial evidence to support that finding. Walters and OConnor
testified that the RV industry was historically cyclical in nature and there
was a correlation between the health of the economy and the number of RVs
sold by LMRV. In particular, Walters testified that the biggest factor in
LMRV’s growth was its taking advantage of a strong economy. Walters and

26
OConnor testified that during the great recession, LMRV, along with the
entire RV industry, experienced precipitous drops in RV sales because RVs
are not necessities. In particular, beginning in 2010 after the great recession,
there was pent-up demand for RVs and LMRV’s sales increased dramatically
as “baby boomers” experienced growth in their wealth and purchased RVs
with historically low interest rate loans. OConnor and Jason testified that
the entire RV industry, and not just LMRV, experienced “meteoric” growth in
RV sales during that economic recovery. Because of that industry-wide
growth, Upton testified that he could not give Husband credit for LMRV’s
growth during that period of economic recovery. Likewise, Linebarger,
Husband’s expert witness, testified that the national economic environment
was “really impactful” on LMRV’s value, that RV sales were related to
discretionary income, and, when unemployment rates decreased, RV sales
increased. When the national GNP grew, sales in the RV industry as a
whole, as well as LMRV’s sales, also grew. Also, the local economies in which
LMRV had store locations followed the national trends. Linebarger testified
that because LMRV’s sales followed the general trends of the RV industry, its
value was not tied to one specific person (e.g., Husband) or what was
happening inside the company.
Finally, the court found that LMRV’s relationships with quality
manufacturers and its banks also played roles in LMRV’s success during the
marriage. There is substantial evidence to support that finding. In
particular, Linebarger testified that before the marriage LMRV had strong
relationships with manufacturers, including with two of the top RV
manufacturers, which relationships were not dependent on Husband and
gave LMRV a competitive advantage in its markets. OConnor testified that
Walters and Upton, and not Husband, primarily handled LMRV’s

27
relationships with manufacturers. Likewise, Linebarger testified that
LMRV’s relationships with banks were dependent on OConnor, not Husband.
OConnor testified that his strong relationships with banks enabled LMRV to
survive the great recession.
Relying on the evidence discussed above, as well as other evidence
admitted at trial, and its underlying factual findings discussed above, the
trial court made its ultimate factual finding that Husband “was not the
principal factor accounting for” the increase in LMRV’s value during the
marriage. (Italics added.) The court expressly rejected Wife’s argument that
Husband’s frequent travel to Florida to check on store locations suggested
that he was the qualitative driver of LMRV’s success during the marriage.
We conclude substantial evidence supports its ultimate finding of fact that
Husband was not the principal factor accounting for LMRV’s increased value
during the marriage.
Based on the evidence and its underlying factual findings, the court
exercised its discretion and selected the Van Camp approach as the
appropriate method to apportion the increase in LMRV’s value during the
marriage between the community and Husband’s separate property. In so
doing, the court implicitly, if not expressly, found that under applicable case
law, LMRV’s growth in value during the marriage was due primarily to
Husband’s separate property capital investment in LMRV and factors other
than his personal efforts during the marriage, such as the growth of the
national economy and the efforts of LMRV’s executive committee and other
management team members. The court implicitly found that the character of
Husband’s separate property capital investment in LMRV, and not his
personal activity, ability, and capacity, was the chief contributing factor in
LMRV’s realization of income and profits during the marriage. (Beam, supra,

28
6 Cal.3d at p. 18.) Accordingly, the court selected the Van Camp approach to
apportion LMRV’s increased value between the community and Husband’s
separate property.
We conclude that the trial court did not abuse its discretion by selecting
the Van Camp approach, instead of the Pereira approach, to apportion
LMRV’s increased value between the community and Husband’s separate
property. As discussed above, there is substantial evidence to support the
court’s underlying factual findings and, in particular, its ultimate finding
that factors other than Husband’s efforts were the primary causes of LMRV’s
growth during the marriage, such as the growth in the national economy and
management of LMRV by an established executive committee. We conclude
that the court, based on those findings, acted within its discretion in selecting
the Van Camp approach. (Cf. Somps v. Somps (1967) 250 Cal.App.2d 328,
334 [Van Camp approach properly applied by trial court where increased
value of single-family residence engineering business resulted from increased
demand due to unprecedented growth in local population and not from
spouse’s efforts]; Tassi v. Tassi (1958) 160 Cal.App.2d 680, 690-692 [Van
Camp approach properly applied by trial court where increased value of meat
business was chiefly attributable to high profits that resulted from increased
demand and sales after termination of meat rationing after World War II];
Gilmore v. Gilmore (1955) 45 Cal.2d 142, 150 (Gilmore) [Van Camp approach
properly applied by trial court in apportioning increased value of automobile
dealerships where there was tremendous increase in automobile industry
sales and well-trained employees managed the businesses without assistance
of spouse]; Harrold v. Harrold (1954) 43 Cal.2d 77, 80 (Harrold) [Van Camp
approach properly applied by trial court where increased value of automobile

29
dealership was due in large part to efforts of competent administrative
employees and not spouse’s efforts].)
As discussed above, a court is not bound by any precise criterion or
standards in selecting an apportionment approach and, in so doing, may
select whichever approach or formula that will achieve substantial justice
between the parties. (Beam, supra, 6 Cal.3d at p. 18.) Based on our review of
the record on appeal, we conclude that the trial court acted rationally and
reasonably in selecting the Van Camp approach as most appropriate and
equitable approach to apportion LMRV’s increased value during the marriage
between the community and Husband’s separate property in the particular
circumstances of this case. (Ibid.; Brooks, supra, 33 Cal.App.5th at p. 588;
Brandes, supra, 239 Cal.App.4th at p. 1473; Dekker, supra, 17 Cal.App.4th at
p. 849.) Alternatively stated, we conclude that the trial court did not act
outside the permissible range of options set by the relevant legal criteria.
(Brandes, at pp. 1473-1474.)
F
Wife’s cited evidence
In support of her argument that the trial court abused its discretion by
selecting the Van Camp approach to apportion LMRV’s increased value
between the community and Husband’s separate property, Wife primarily
cites evidence and inferences therefrom that would have supported a contrary
finding by the court (i.e., that Husband’s efforts were the primary cause of
LMRV’s increased value during the marriage). However, in so doing, she
misconstrues and/or misapplies the applicable standards of review.
Preliminarily, we note that, as discussed above, we decline Wife’s
suggestion that we should review the trial court’s selection of the Van Camp
approach de novo under section 2555. Rather, also as discussed above, we

30
apply the substantial evidence standard in reviewing the trial court’s factual
findings and the abuse of discretion standard in reviewing its ultimate
decision to select the Van Camp approach to apportion LMRV’s increased
value between the community and Husband’s separate property. (See, e.g.,
Brooks, supra, 33 Cal.App.5th at pp. 588, 593; Brandes, supra, 239
Cal.App.4th at pp. 1472-1473; Dekker, supra, 17 Cal.App.4th at p. 849.) In so
doing, we defer to the trial court’s weighing of the evidence, including its
determinations regarding the credibility of witnesses. In applying the
substantial evidence standard of review, we accept all evidence supporting
the trial court’s judgment or finding, completely disregard contrary evidence,
and draw all reasonable inferences from the evidence to support the
judgment or finding. (Schmidt, supra, 44 Cal.App.5th at pp. 581-582.) It is
our function to determine only if substantial evidence supports the trial
court’s judgment or finding and not whether there may be substantial
evidence to have supported a contrary judgment or finding (e.g., in favor of
Wife). (Id. at p. 582.) At a bench trial such as in this case, the trial court is
the sole judge of witness credibility and may disregard the testimony,
contradicted or uncontradicted, of any witness if there is any rational ground
for doing so. (Ibid.) We cannot reweigh the evidence, substitute our own
inferences from the evidence, or make different assessments of credibility
from the trial court’s assessments. (Ibid.; Ana C., supra, 204 Cal.App.4th at
p. 1329.) An appeal is not a “retrial” of the case or an opportunity for an
appellant to rehash arguments about the strength of the evidence. (Paterno,
supra, 74 Cal.App.4th at p. 102.) We defer to the trial court’s determination
of credibility or other factual issues because it had the benefit of observing
the demeanor of witnesses and was therefore in a better position than an

31
appellate court to assess credibility. (Boswell, supra, 225 Cal.App.4th at
p. 1175.)
Although Wife cites certain testimony and other evidence that could
have supported an inference that Husband was primarily responsible for
LMRV’s expansion of store locations in Florida, Arizona, and New Mexico
during the marriage, she omits or minimizes other testimony and evidence,
as discussed above, that supported Linebarger’s and the trial court’s
conclusions that LMRV’s expansion of store locations was primarily the
result of established business practices and the efforts of other members of
LMRV’s management team and not Husband’s efforts. Furthermore, she
argues that the trial court erred by not accepting Yip’s opinion that Husband
was the primary reason for LMRV’s expansion of store locations and thus its
increased gross income and increased value and by instead accepting
Linebarger’s contrary opinion. Wife also argues that “[s]everal factors point
towards Husband as the ‘chief contributing factor’ in [LMRV’s] increase in
value,” citing evidence that arguably would support inferences that Husband
had “control” of LMRV, made all of its store expansion and other business
decisions, and personally guaranteed many of its loans. Based on that
evidence and inferences favorable to her position, Wife argues “[t]he
community was the main contributing factor to the success of [LMRV] during
the marriage.”
However, by so arguing, Wife misapplies the substantial evidence
standard of review. She, in effect, seeks to “retry” the case and have us
reweigh the evidence and make credibility determinations. As discussed
above, that is not the function of an appellate court in determining whether
there is substantial evidence to support the factual findings of a trial court.
Rather, we view the evidence, and make inferences therefrom, favorably to

32
support the trial court’s factual findings and, in so doing, defer to the trial
court’s weighing of the evidence and credibility determinations. (Schmidt,
supra, 44 Cal.App.5th at pp. 581-582; Ana C., supra, 204 Cal.App.4th at
p. 1329.)
Likewise, Wife misapplies the substantial evidence standard that we
apply in reviewing the trial court’s finding that LMRV’s increased value was
primarily attributable to factors other than Husband’s efforts. In particular,
Wife cites evidence showing Husband’s efforts in finding, opening, and
fostering new store locations in Florida, which efforts she argues were the
actual primary cause of LMRV’s increased value. Citing evidence that
LMRV’s gross sales from the new Florida store locations constituted about
one-half of its revenues, Wife argues that Husband’s efforts regarding those
new stores necessarily were the primary cause of LMRV’s increased value
during the marriage. In so doing, she cites only evidence and inferences
favorable to her position and minimizes, if not wholly omits discussion of,
evidence and inferences favorable to the trial court’s contrary finding. By so
doing, she has not carried her burden on appeal to show that substantial
evidence does not support the trial court’s finding that LMRV’s increased
value was primarily attributable to factors other than Husband’s efforts or,
for that matter, that the court abused its discretion in selecting the Van
Camp approach to apportion that increased value between the community
and Husband’s separate property.
To the extent Wife argues that the trial court should have exercised its
discretion and selected the Pereira approach because Husband “controlled”
LMRV and its decisions, she misconstrues the correct test for selecting the
Pereira approach, improperly conflating “control” over LMRV and its business
decisions with the question of whether Husband’s personal efforts were the

33
“chief contributing factor” for its increased value (Logan v. Forster (1952) 114
Cal.App.2d 587, 599 (Logan)) or, alternatively stated, whether its increased
value was “principally attribut[able] to” his efforts (Dekker, supra, 17
Cal.App.4th at p. 853). Husband’s “control” of LMRV, whether by means of
his majority ownership position or the authority implicit with his executive
title (i.e., chief executive officer), does not, by itself, meet that standard and
does not show the Van Camp approach could not rationally be selected by the
trial court within its discretion based on other factors (as the trial court did
in this case). (Cf. Gilmore, supra, 45 Cal.2d at p. 150 [Van Camp approach
applied where spouse owned automobile dealerships]; Logan, supra, 114
Cal.App.2d at pp. 600-601 [Van Camp approach applied where spouse wholly
owned utility company]; Harrold, supra, 43 Cal.2d at pp. 80-81.) She also
ignores contrary evidence discussed above, which showed that LMRV’s
management team made all of its important business decisions and, although
Husband could veto those decisions, he apparently vetoed only one such
decision by the management team. Therefore, contrary to Wife’s assertion
that the evidence at trial showed Husband “made all important decisions” for
LMRV’s business, the trial court could instead reasonably infer that Husband
effectively deferred to LMRV’s management team and its decisions and did
not actively control or make those decisions himself. Accordingly, we
conclude that Wife has not carried her burden on appeal to show the trial
court abused its discretion by selecting the Van Camp approach to apportion
LMRV’s increased value between the community and Husband’s separate
property.

34
 III
$115,000 Deduction for Jewelry Purchase
Wife contends that the trial court erred by deducting $115,000 from the
community’s interest in LMRV for jewelry (i.e., diamond earrings) purchased
by Husband with community funds from LMRV apparently in excess of his
draw account balance and then given to her. In her opening appellant’s brief,
Wife argues in a conclusory manner that because, as discussed above, we
should reverse the trial court’s selection of the Van Camp approach and
instead apply the Pereira approach to apportion LMRV’s increased value
between the community and Husband’s separate property, we must also
reverse its $115,000 jewelry purchase deduction from the amount of the
community’s undercompensation as improper under the Pereira approach.
Wife argues: “Undercompensation is only relevant if the Van Camp method of
calculating Wife’s share of the business profits is used. Since the Pereira
method should be used, there is no reason for any deduction.”
However, because we concluded above that the trial court properly
selected and applied the Van Camp approach, the premise of Wife’s argument
is ill-founded and therefore we conclude she has not carried her burden on
appeal to show the court erred by deducting $115,000 from the $837,000
gross amount of undercompensation to the community for the jewelry
purchased by Husband with community funds from LMRV and then given to
her. In any event, we conclude that substantial evidence supports the trial
court’s deduction of $115,000 from the $837,000 gross amount of
undercompensation for Husband’s services to LMRV during the marriage,
which resulted in the net amount of undercompensation of $722,000.
The parties do not dispute on appeal that under the Van Camp
approach the trial court correctly found that the community was

35
undercompensated by LMRV for Husband’s services during the marriage in
the gross amount of $837,000. They also do not dispute that the funds for
Husband’s $115,000 purchase of jewelry came from LMRV. At trial,
Husband testified that in January 2011 he called Sundstrom and directed her
to wire funds from LMRV directly to the seller of the jewelry. He then gave
the jewelry (i.e., diamond earrings) to Wife with the intent that she wear
them. In the absence of evidence showing otherwise, it is presumed that
community expenses are paid from community funds rather than separate
funds. (Beam, supra, 6 Cal.3d at p. 20, citing Estate of Neilson (1962) 57
Cal.2d 733, 742.) Here, absent evidence or findings showing otherwise (and
the parties do not cite any contrary evidence or findings), we conclude that
the trial court implicitly found that the $115,000 purchase of jewelry by
Husband constituted community expenses, which purchase was presumably
paid for from community funds rather than his separate funds. (Cf. Beam, at
p. 21.) We further conclude that the court implicitly found that the $115,000
jewelry purchased by Husband during the marriage was presumptively
community property under section 760. The court then expressly found in its
statement of decision that the $115,000 diamond earrings and other jewelry
items given by Husband to Wife were her separate property and awarded
them to her as her separate property. In so doing, the court found that
“[a]lthough expensive and numerous,” the jewelry items given by Husband to
Wife were “gifts of a personal nature” and not “outside the standard of living
of the parties,” thereby implicitly finding that the jewelry items were
effectively transmuted from community property to her separate property
pursuant to section 852, subdivision (c). (Cf. In re Marriage of Valli (2014) 58
Cal.4th 1396, 1401-1402 [hypothetical purchase of “particularly expensive”
jewelry by husband that was substantial in value taking into account the

36
circumstances of the marriage was community property and there would be
no transmutation from community property to wife’s separate property on his
gift of jewelry to her under § 852, subd. (c), absent express written
declaration effecting transmutation under § 852, subd. (a)].)
Assuming arguendo the trial court had instead found that the LMRV
funds used to purchase the $115,000 diamond earrings were Husband’s
separate property and had not come from community income and then found
(correctly or incorrectly) that he was entitled to reimbursement, we presume
the court would not have deducted that $115,000 amount from the $837,000
gross amount of undercompensation to the community, but instead awarded
the entire $837,000 amount to the community as undercompensation (which
would then be divided equally between the parties) and then separately
awarded Husband reimbursement for the $115,000 payment made from his
separate property. However, because the court did not do so, we infer that
the court impliedly found that the $115,000 amount paid from LMRV was
instead from community income and therefore that amount should be
deducted from the $837,000 gross amount of undercompensation to the
community, resulting in the $722,000 net amount of undercompensation
found by the court to be divided equally between the parties. Based on our
review of the record, we conclude that substantial evidence supports the
court’s finding and its $115,000 deduction from the $837,000 gross amount of
undercompensation, resulting in a net amount of undercompensation to the
community of $722,000 under the Van Camp approach.
IV
The Property
Wife contends that the trial court erred by implicitly finding the source
of the initial $4,700,000 in funds from LMRV to purchase the Property (i.e.,

37
the Del Mar home) was Husband’s separate property, not finding the second
LMRV note and trust deed were invalid for lack of consideration, and finding
Husband did not breach his fiduciary duties to her in arranging the first and
second LMRV loans and using the proceeds of the Citibank loan to pay down
the LMRV loan.
A
In February 2016, the parties purchased the Property for about $6.3
million. That purchase price was primarily paid with down payments of
$642,999 by Husband and $550,000 by Wife and a $4.7 million transfer of

funds from LMRV arranged by Husband.8 Husband’s down payment came
from Velocity Properties, LLC, a company that was his separate property.
Wife’s down payment(s) came from her individual account that she
maintained with LMRV. On or about February 1, the parties signed and
delivered to LMRV an unsecured promissory note in the principal amount of
$4.7 million that was payable on demand. In April, the parties obtained a $2
million loan from Citibank, which was secured by a first trust deed on the
Property, and the proceeds were used to pay down the balance of the $4.7
million loan from LMRV. In May, the parties signed a second promissory
note in the face amount of $4.7 million payable to LMRV, which note had a
two-year term and was secured by a second trust deed on the Property.

8 Those payments constitute only $5,892,999 of the $6.3 million total
purchase price. However, neither party cites evidence nor otherwise
describes the source of payment for the remainder of the $6.3 million
purchase price. Given the extensive record on appeal that exceeds 20,000
pages, we decline to independently review the record to locate evidence
showing the payment source for the remainder of the purchase price. In any
event, for purposes of addressing the contentions on appeal, we conclude that
source of payment does not appear to be relevant.
38
 In its statement of decision, the trial court found that the first
unsecured LMRV promissory note was replaced by the second secured LMRV
promissory note. It also found that the proceeds of the $2 million Citibank
loan were used to pay down the balance of the parties’ LMRV loan, resulting
in a then-current outstanding LMRV loan balance of $2,838,145.66. The
court rejected Wife’s claim that she did not know what she was signing when
she signed the LMRV and Citibank notes and loan documents, noting she
was intelligent and a former real estate agent. It also found that Wife had
not been defrauded, misled, or taken advantage of in signing the loan
documents. The court also rejected her claim that Husband breached his
fiduciary duties by misleading her regarding the financing for the Property.
The court found that the Property was community property, the LMRV and
Citibank loans were community debts, and the parties owed Citibank $2
million, plus interest, and LMRV $2,838,145.66, plus interest. The court
ordered that the Property be sold and that the net sale proceeds (after
payment of the costs of sale, payment of the LMRV and Citibank loan
balances, and deductions for section 2640 reimbursement awards to the
parties) be divided equally between the parties. Addressing the parties’
respective section 2640 reimbursement claims, the court awarded Husband
$642,993 for his separate property used to purchase the Property and
awarded Wife $550,000 for her separate property used to purchase the
Property.
B
Wife argues that the trial court erred by implicitly finding that
Husband’s separate property interest in LMRV was not commingled with her
separate property or the community’s interest in LMRV. Based on that error,
she argues the court further erred by finding that the $4.7 million loan

39
proceeds from LMRV came from Husband’s separate property interest in it,
rather than their community property, and/or by denying her request that
the LMRV note and trust deed be set aside. In particular, Wife argues that
the evidence showed Husband’s and her accounts with LMRV had been
commingled with his LMRV salary (a community interest) and therefore the
community’s interest was commingled with his separate interest in LMRV,
thereby supporting only a finding that the $4.7 million in LMRV funds were
community property. She also argues that because the evidence showed she
received no consideration for signing the second LMRV note and trust deed
and Husband breached his fiduciary duty to her, the court was required to set
aside the second LMRV note and trust deed as invalid and then divide the
$4.7 million in LMRV funds between them (presumably upon the court-
ordered sale of the Property). She appears to alternatively argue that the
court also should have found that the $2 million in Citibank loan proceeds
were also community property, which funds should have been divided
between them, rather than used to pay down the balance of the $4.7 million
LMRV loan.
As Wife notes, to the extent a spouse’s separate property funds are
commingled with community property, those separate property funds are
presumed to be community property unless the spouse rebuts that
presumption with documentary evidence tracing the funds to the spouse’s
separate property. (See, e.g., See v. See (1966) 64 Cal.2d 778, 784 (See);
Estate of Murphy (1976) 15 Cal.3d 907, 919 (Murphy); In re Marriage of
McLain (2017) 7 Cal.App.5th 262, 274 (McLain); In re Marriage of Braud
(1996) 45 Cal.App.4th 797, 822-823 (Braud) [“the mere commingling of
separate property and community property funds does not alter the status of
the respective property interests, provided that the components of the

40
commingled mass can be adequately traced to their separate property and
community property sources”].) “Where funds are paid from a commingled
account, the presumption is that the funds are community funds.” (In re
Marriage of Frick (1986) 181 Cal.App.3d 997, 1010 (Frick).) On appeal, we
review a trial court’s finding of fact regarding whether a spouse has
adequately traced funds to a separate property source for substantial
evidence. (Braud, at p. 823.) If substantial evidence supports that factual
finding, we must uphold it “even though evidence conflicts or supports
contrary inferences.” (In re Marriage of Grinius (1985) 166 Cal.App.3d 1179,
1185 (Grinius), citing Beam, supra, 6 Cal.3d at p. 25; see also, Schmidt,
supra, 44 Cal.App.5th at p. 582.)
Husband asserts that Wife did not raise these arguments below and
thereby forfeited any claim that the $4.7 million LMRV loan proceeds or the
$2 million Citibank loan proceeds were community property and not his
separate property. Assuming arguendo that Wife did not forfeit these
arguments by not raising them below, we nevertheless conclude she has
waived or forfeited her arguments on appeal and/or not carried her burden on
appeal to show that substantial evidence does not support the trial court’s
implied and express findings regarding the LMRV and Citibank loans, her
receipt of consideration, and Husband’s compliance with his fiduciary duties

to her.9
Initially, we note that rather than properly citing the evidence and
inferences favorable to the court’s findings and decision, Wife cites only
evidence and inferences favorable to her position and, in so doing,

9 In her trial brief, Wife argued, among other things, that the $4.7
million in funds transferred by LMRV to escrow were community funds.
Accordingly, it does not appear on this record that Wife clearly forfeited her
arguments below as Husband asserts.
41
misconstrues and/or misapplies the substantial evidence standard of review.
As stated above, in applying the substantial evidence standard of review, we
accept all evidence supporting the trial court’s judgment or finding,
completely disregard contrary evidence, and draw all reasonable inferences
from the evidence to support the judgment or finding. (Schmidt, supra, 44
Cal.App.5th at pp. 581-582.) We determine only “if substantial evidence
exists to support [the judgment or finding] in favor of the prevailing party,
not to determine whether substantial evidence might support the losing
party’s version of events.” (Id. at p. 582.) We cannot reweigh the evidence,
substitute our own inferences from the evidence, or make different
assessments of credibility from the trial court’s assessments. (Ibid.; Ana C.,
supra, 204 Cal.App.4th at p. 1329.) An appeal is not a “retrial” of the case or
an opportunity for an appellant to rehash arguments about the strength of
the evidence. (Paterno, supra, 74 Cal.App.4th at p. 102.)
By disregarding or misapplying the substantial evidence standard of
review, we conclude that Wife has waived or forfeited her contentions or has,
in effect, conceded her contentions lack merit. As discussed above, an
appellant’s contentions should be tailored to the applicable standard of
appellate review and a failure to acknowledge or apply the proper scope of
review may be considered to be a concession of a lack of merit of that
contention. (Sonic Manufacturing Technologies, Inc., supra, 196 Cal.App.4th
at p. 465.) Alternatively stated, by citing only evidence favorable to her
position and ignoring evidence supporting the court’s judgment or findings,
Wife waived or forfeited her substantial evidence contention and we therefore
presume the record contains evidence to support the trial court’s factual
findings. (Delta Stewardship Council Cases, supra, 48 Cal.App.5th at

42
p. 1072; Doe v. Roman Catholic Archbishop of Cashel & Emly, supra, 177
Cal.App.4th at p. 218.)
Nevertheless, assuming arguendo that Wife has not waived or forfeited
her contentions, we conclude she has not carried her burden on appeal to
show that substantial evidence does not support the trial court’s implicit and
express findings that she challenges. Rather than properly citing evidence
and inferences that support the court’s findings, Wife cites only certain
evidence that purportedly supports her arguments. Even so, as Husband
argues, the evidence cited in her appellant’s opening brief does not support
the findings she argues the court should have made. First, in support of her
commingling argument, Wife cites to the reporter’s transcript (i.e., 2 RT 674-
676) where Husband purportedly testified that he was able to convert his
expenses incurred for her travel with him on business trips from reimbursed
business expenses instead to draws on his salary by simply notifying LMRV’s
controller. However, our review of the testimony set forth on that excerpt
from the reporter’s transcript does not support her position. In those three
pages from Husband’s trial testimony, he admitted that in his deposition he
stated that Wife traveled with him on business trips and LMRV paid for her
travel with him on business. He then admitted that he had subsequently
corrected his deposition testimony to state, instead, that the expenses for
Wife’s travel with him were charged to his credit card, which LMRV paid and
then charged to his LMRV draw account. That testimony by Husband does
not support Wife’s assertion that he converted her travel expenses from
business expenses reimbursed by LMRV to draws on his LMRV draw account
by simply notifying its controller, nor does it show Husband’s separate
interest in LMRV was commingled with the community’s interest in LMRV
(e.g., Husband’s draw account).

43
 Second, Wife cites to the reporter’s transcript (i.e., 2 RT 632) where
Husband purportedly testified that he was able to convert advances from
LMRV to loans from LMRV, which he could pay back or not as he so chose.
However, our review of Husband’s testimony set forth on that excerpt from
the reporter’s transcript does not support her position. On that cited page
from the reporter’s transcript, Husband testified that when he took a draw
from LMRV, he considered it to be an advance on his salary (i.e., “[i]t’s an
advance on salary or whatever, to pay it back”). That testimony by Husband
does not support Wife’s assertion that he was able to convert advances from
LMRV to loans from LMRV, which he could pay back or not as he so chose,
nor does it show Husband’s separate interest in LMRV was commingled with
the community’s interest in LMRV (e.g., Husband’s draw account).
Third, and finally, Wife cites to the appellant’s appendix (i.e., 6 AA
3290) where there is evidence that purportedly showed that her funds were
commingled with LMRV funds. However, as Husband argues, that excerpt
from the record is from OConnor’s deposition testimony, which does not
appear to have been admitted in evidence at trial, and Wife does not show
otherwise. (See, e.g., 1 AA 409, 693, 699; 5 AA 3253; 2 RT 373-374, 489.) In
any event, on that cited page from OConnor’s deposition testimony, he
testified only that when LMRV acquired properties for new store locations,
LMRV did not use any of the funds Wife maintained in her account with it
(“[t]hat wouldn’t have happened”) and elaborated that there was no need for
her money to do so even if her funds were “commingled” (presumably, with
Husband’s separate funds or the community’s interest), noting LMRV had
“plenty of capital” to acquire those properties on its own. That deposition
testimony by OConnor does not support Wife’s assertion that her funds were

44
commingled with LMRV funds, nor does it show Husband’s separate interest

in LMRV was commingled with the community’s interest in LMRV.10
Therefore, considering Wife’s cited evidence and inferences therefrom
favorably to support the trial court’s findings and decision, we conclude that
she has not carried her burden on appeal to show that substantial evidence
does not support its findings and decision relating to the nature and sources
of payments made toward the Property’s purchase price and the LMRV and
Citibank loans and trust deeds.
C
Wife also argues, in a conclusory manner consuming only one-half of a
page in her appellant’s opening brief, that she received no consideration for
signing the second LMRV promissory note and related trust deed. Citing to
OConnor’s trial testimony (i.e., 2 RT 434), Wife argues that “[t]he evidence
is . . . conclusive that [she] received nothing for her execution of [the second
LMRV] note and trust deed to effectively convert the community property
into Husband’s separate property.” However, OConnor’s testimony does not
support Wife’s argument. Rather, in the cited page, OConnor testified that
he stated at his deposition it was his opinion that the first LMRV promissory
note was unsecured by the Property and that the second LMRV promissory
note was intended to substitute for the first LMRV promissory note.
OConnor then testified that he was not aware of any “financial

10 Although Wife’s appellant’s opening brief also includes other citations
to the record on appeal in support of her description of the chronology of the
Property purchase and the documentation for the LMRV and Citibank loans,
none of that evidence directly relates to her commingling argument, nor does
it show that her separate property or the community’s interest in LMRV was
commingled with Husband’s separate property interest in LMRV such that
the $4.7 million loan from LMRV must be deemed to have come from the
community’s interest.
45
compensation” that Wife received for signing the second LMRV promissory
note that was secured by the Property. That testimony by OConnor does not,
as Wife asserts, conclusively show that she did not receive any consideration
for signing the second LMRV promissory note and trust deed. Instead, it
merely constitutes one percipient witness’s unawareness of any “financial
compensation” that Wife may have received in signing those loan documents.
As Wife notes, “sufficient cause or consideration” is an essential
element for a contract. (Civ. Code, § 1550(4).) However, “consideration”
under the law need not be direct “financial compensation,” as Wife
apparently asserts. Civil Code section 1605 provides: “Any benefit conferred,
or agreed to be conferred, upon the promisor, by any other person, to which
the promisor is not lawfully entitled, or any prejudice suffered, or agreed to
be suffered, by such person, other than such as he is at the time of consent
lawfully bound to suffer, as an inducement to the promisor, is a good
consideration for a promise.” (Italics added.) Furthermore, “[a] written
instrument is presumptive evidence of a consideration.” (Civ. Code, § 1614.)
In her request below to have the second LMRV promissory note and trust
deed invalidated, Wife had the burden to show “a want of consideration
sufficient to support” them. (Civ. Code, § 1615.) Courts do not weigh the
amount of consideration for a contract. (Rice v. Brown (1953) 120 Cal.App.2d
578, 582.) “The slightest consideration is sufficient to support” a contract.
(Ibid.)
On appeal, Wife does not challenge the trial court’s finding that the
second secured LMRV promissory note replaced the first unsecured LMRV
promissory note. As discussed above, OConnor testified that the second
LMRV note was a substitute for the first LMRV note. To find sufficient
consideration to support the second LMRV promissory note and trust deed,

46
the trial court did not need to look any further than the face of the two LMRV
promissory notes and the trust deed. Specifically, because the court
expressly found that the second LMRV promissory note replaced the first
promissory note, it presumably considered the fact that Husband and Wife
were thereby relieved of their liability under the first promissory note. The
court also presumably considered the fact that the first promissory note was
payable on demand, whereas the second promissory note was not payable on
demand, having instead an express term of two years. That evidence, in
itself, provided substantial evidence to support the court’s implied finding
that Wife received adequate consideration for her signing the second LMRV
promissory note and trust deed. In particular, in exchange for signing the
second LMRV promissory note and trust deed, Wife was relieved of her
liability to pay the balance of the first $4.7 million LMRV promissory note
and received the benefit of a fixed, longer term (i.e., two-year term rather
than payable on demand). Accordingly, we conclude that Wife has not carried
her burden on appeal to show that substantial evidence does not support the
court’s implied finding that she received adequate consideration for signing
the second LMRV promissory note and trust deed. Therefore, we reject her
contention that the court erred by denying her request to invalidate and set
aside the second LMRV promissory note and trust deed for lack of
consideration.
D
Wife also argues, again in a conclusory manner consuming only slightly
more than one-half of a page in her appellant’s opening brief, that the trial
court erred by finding that Husband did not breach his fiduciary duties to her
(presumably in arranging the first and second LMRV loans and using the
proceeds of the Citibank loan to pay down the LMRV loan balance). In so

47
arguing, Wife does not discuss the evidence and inferences therefrom
favorably to support the court’s finding, but simply asserts in a conclusory
manner: “Since the Husband’s position here is that the property transferred
was his separate property, and there is no adequate evidence that this was
true, the transfer of presumptively community property must be invalidated.”
We conclude that, by arguing in a conclusory manner without discussion of
the evidence and inferences favorable to the court’s finding, Wife has waived
or forfeited her contention on appeal. (Stanley, supra, 10 Cal.4th at p. 793;
Salas, supra, 198 Cal.App.4th at p. 1074.)
Furthermore, because Wife’s appellant’s opening brief omits any
discussion of the evidence supporting the court’s finding that Husband did
not breach his fiduciary duties to her, we conclude Wife has waived or
forfeited her substantial evidence challenge to that finding and presume the
record contains evidence to support that finding. (Delta Stewardship Council
Cases, supra, 48 Cal.App.5th at p. 1072; Doe v. Roman Catholic Archbishop of
Cashel & Emly, supra, 177 Cal.App.4th at p. 218.) Likewise, Wife has waived
or forfeited her contention by making only a conclusory assertion and failing
to provide adequate legal authority and analysis on the issue. (Cahill v. San
Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 (Cahill); Benach v.
County of Los Angeles (2007) 149 Cal.App.4th 836, 852; Blizzard Energy, Inc.
v. Schaefers (2021) 71 Cal.App.5th 832, 854 [argument, which was set forth in
single paragraph of appellant’s opening brief, was forfeited because it was not
supported by meaningful analysis with citation to authority].) It is not our
role as an appellate court to develop appellant’s legal arguments and
independently review the record on appeal for evidence to support those
arguments. (Stanley, supra, 10 Cal.4th at p. 793; Cahill, at p. 956.)
Although Wife presents additional argument on this issue in her appellant’s

48
reply brief, that belated argument does not cure or save her earlier waiver or
forfeiture of her contention based on her deficient argument in her
appellant’s opening brief. (Cf. Julian v. Hartford Underwriters Ins. Co.
(2005) 35 Cal.4th 747, 761, fn. 4 [points raised in reply brief for first time will
generally not be considered]; High Sierra Rural Alliance v. County of Plumas
(2018) 29 Cal.App.5th 102, 111, fn. 2 [obvious considerations of fairness to
respondent demand that appellant present all arguments in opening brief];
SCI California Funeral Services, Inc. v. Five Bridges Foundation (2012) 203
Cal.App.4th 549, 573, fn. 18 [appellant cannot salvage forfeited argument by
belatedly addressing it in reply brief]; Paulus v. Bob Lynch Ford, Inc. (2006)
139 Cal.App.4th 659, 685 [same].)
E
On November 1, 2021, Husband filed a request that we take judicial
notice of a post-judgment stipulation and grant deed on the ground that it
might render moot, or constitute a waiver of, certain contentions made by
Wife. In particular, Husband requests that we take judicial notice of a
“Stipulation and Order Re: Modification of Judgment” (Stipulation), which
was signed by the parties and entered by the trial court on November 25,
2020, three weeks after the judgment was entered in this case. The
Stipulation provided, among other things, that Husband was required to pay
Wife $600,000 for her interest in the Property and thereafter “[n]o further
equalizing payment, credit, or offset shall be due to [her] relative to her
interest, any reimbursement, offset, or credit relative to the [Property].” The
Property would then be awarded to Husband as his sole and separate
property, along with all related encumbrances or obligations. The Stipulation
further provided that Husband would indemnify Wife and hold her harmless
from any and all obligations regarding any financing agreement related to

49
the Property, including any note or trust deed in favor of LMRV or Citibank.
The Stipulation also provided that it “extinguishes [Wife’s] rights and
obligations under the Judgment to the [Property],” but “does not extinguish
any other rights under the Judgment.” To effect the transfer of her interest
in the Property, it also provided that Wife would sign all necessary
documents, including an interspousal transfer deed.
Husband also requests that we take judicial notice of an interspousal
transfer grant deed (Deed), which was signed by Husband and Wife and
recorded with the San Diego County Recorder on January 25, 2021. The
Deed provides, among other things, that Husband and Wife granted the
Property to Husband, as trustee of his family trust.
In his respondent’s brief, Husband argues that all of Wife’s contentions
regarding the Property and the related loans and trust deeds are moot
because she entered into the Stipulation and signed the Deed, as described
above, which precludes us from providing the parties with effectual relief.
(Cf. Woodward Park Homeowners Assn. v. Garreks, Inc. (2000) 77
Cal.App.4th 880, 888 [appeal is moot when appellate court decision cannot
have any practical impact or provide parties with effectual relief].) He also
argues that by signing the Stipulation and Deed, Wife expressly waived her
interest in the Property, as well as any community property interest arising
out of the LMRV and Citibank loans and trust deeds, whether in the form of
proceeds, reimbursement, or an equalizing payment. (Cf. Howeth v. Coffelt
(2017) 18 Cal.App.5th 126, 131 [consent judgments are not appealable];
Papadakis v. Zelis (1991) 230 Cal.App.3d 1385, 1387 [party cannot appeal
from stipulated judgment].)
On November 17, 2021, we issued an order stating that we would
consider Husband’s request for judicial notice together with the appeal. We

50
now grant his request and take judicial notice of the Stipulation and Deed.
(Evid. Code, §§ 452, subds. (d), (h), 459, subd. (a).) Nevertheless, because we
disposed of Wife’s contentions regarding the Property and related loans and
trust deeds on other grounds, as discussed above, we need not, and do not,
address Husband’s arguments that those contentions are moot or that she
waived those contention based on the Stipulation and Deed.
HUSBAND’S CROSS-APPEAL
V
Section 2640 Reimbursement Award to Wife
In his cross-appeal, Husband contends that substantial evidence does
not support the trial court’s section 2640 reimbursement award of $550,000
to Wife for her down payment contributions toward the purchase of the
Property. In particular, Husband argues the trial court erred by finding that
his gifts or other transfers of cash to her (apparently totaling $400,000, which
gifts were the source, in part, of her down payment(s) toward the Property
purchase) were gifts of tangible articles of a personal nature under section
852, subdivision (c), and therefore were transmuted to her separate property
and thus she was entitled to section 2640 reimbursement. He also argues
that substantial evidence does not support the court’s implied finding that
Wife presented sufficient documentary evidence tracing the source of the
remaining $150,000 amount for her down payment(s) to her separate
property.
A
At trial, Wife testified that she contributed a total of $600,000 toward
the down payment for the purchase of the Property. She testified that the
sources of her down payment(s) were: (1) cash gifts from Husband; and (2)
money her mother had left for her grandchildren on her passing in 2013.

51
Specifically, Wife testified that she had received a $180,000 check from
Velocity Properties, LLC (Husband’s separate property), which she believed
she deposited in her separate Wells Fargo Bank account and then transferred
into her LMRV “investors account.” She also testified that she had $370,000
in her separate Citibank account, which apparently came from a combination
of cash gifts from Husband and transfers of funds from her brother from her
mother’s estate, and then transferred those funds to her LMRV account. In
particular, Wife testified that she received $150,000 from her mother’s estate,
including a $100,000 transfer from her brother from her mother’s estate,

which amount she invested in her LMRV account for the grandchildren.11
She testified that in or about late January 2016, she transferred a total of
$550,000 from her LMRV account to the escrow account toward the down
payment for the purchase of the Property. Wife also testified that her brother
(who apparently had acted as the parties’ agent in purchasing the Property)
credited them $50,000 from his commission. In her trial brief, Wife sought
section 2640 reimbursement of $550,000 for her separate property down
payments of $180,000 and $370,000 that were made to escrow to purchase
the Property.
In its statement of decision, the trial court stated:
“[Wife] testified that $180,000 of her separate property
funds (her ‘account’ held at LMRV) were transferred to
escrow. [Citation.] [Wife] further testified that a $370,000
wire transfer from LMRV [citation] was also a contribution
to the home purchase that she made from her ‘account’ held
at LMRV. She asserts that the $50,000 agent discount her
brother, their agent in the purchase, provided to [Wife and
Husband], should also be credited to her. Although

11 Wife testified that she received a total of $150,000 from her mother’s
estate, including the $100,000 transfer from her brother, but could not recall
when or where she received the remaining $50,000.
52
 [Husband] testified that it appeared that sums of money
were transferred from [Wife’s] [LMRV] ‘account,’ he
believes he should be credited for one[-]half of that amount
because he provided her much of the money.
“The Court finds the money in [Wife’s] account was either
money held for the benefit of her mother’s grandchildren, or
gifts from [Husband]. [Husband] objects that the cash was
not gifts and that (if gifts) gifts of cash do not meet the
criteria of Family Code [section] 852, i.e.[,] ‘tangible articles
of a personal nature.’ The Court finds, based on the
testimony of both parties, that [Husband] did indeed make
frequent and regular gifts of cash to [Wife] and that the
parties treated cash gifts in a similar fashion to any other
‘tangible article of a personal nature.’ The Court finds
[Wife’s] testimony credible as to her Family Code [section]
2640 claim.”
However, the court rejected Wife’s claim for section 2640 reimbursement for
her brother’s $50,000 reduction in his sales commission. The court found
that Wife had established her section 2640 claim and awarded Wife $550,000
in reimbursement.
B
As discussed above, under California’s community property law,
property acquired before marriage and property acquired during marriage by
bequest, devise, or descent are presumptively the separate property of a
spouse (§ 770, subd. (a)) and other property acquired during marriage is
presumptively community property (§ 760). (Brandes, supra, 239
Cal.App.4th at p. 1472.) Section 850 provides that, subject to certain
statutory provisions (e.g., § 852), married persons may transmute property by
agreement or transfer (e.g., from community to separate property, from
separate to community property, or from one spouse’s separate property to
the other spouse’s separate property). Importantly, section 852 provides:

53
 “(a) A transmutation of real or personal property is not
valid unless made in writing by an express declaration that
is made, joined in, consented to, or accepted by the spouse
whose interest in the property is adversely affected.
[¶] . . . [¶]
“(c) This section does not apply to a gift between the spouses
of clothing, wearing apparel, jewelry, or other tangible
articles of a personal nature that is used solely or
principally by the spouse to whom the gift is made and that
is not substantial in value taking into account the
circumstances of the marriage.
“(d) Nothing in this section affects the law governing
characterization of property in which separate property and
community property are commingled or otherwise
combined. . . .” (Italics added.)
Also, as discussed above, when a spouse contributes separate property
funds to acquire community property and thereafter seeks section 2640
reimbursement, that spouse has the burden to provide documentary evidence
tracing the contributions to a separate property source. Section 2640,
subdivision (b) generally provides: “[T]he party shall be reimbursed for the
party’s contributions to the acquisition of property of the community property
estate to the extent the party traces the contribution to a separate property
source.” (Italics added.)
C
Husband argues that the trial court erred by finding his cash gifts to
Wife were exempt from section 852, subdivision (a)’s requirement that a
transmutation of personal property be made in writing by an express
declaration by him because they were gifts of “tangible articles of a personal
nature” within the meaning of section 852, subdivision (c). In support of his
argument, he cites In re Marriage of Buie & Neighbors (2009) 179
Cal.App.4th 1170 (Buie), in which we construed the language of section 852,

54
subdivision (c) in the context of a gift to a spouse of an automobile. In Buie,
the husband purchased a Porsche automobile with a check in the amount of
about $60,000 drawn on the wife’s bank account, which held funds from the
sale of her separate property residence. (Buie, at p. 1172.) The husband
apparently considered the automobile to be a gift from the wife, having been
purchased shortly before his birthday. (Ibid.) The trial court found that the
automobile was a gift from the wife to the husband and then found the
section 852, subdivision (c) exception applied, transmuting the automobile to
the husband’s separate property without an express declaration in writing
that is generally required for transmutations under section 852, subdivision
(a). (Buie, at pp. 1172-1173.) In particular, the trial court found that the
Porsche automobile was a gift of a “tangible article[ ] of a personal nature”
within the meaning of section 852, subdivision (c). (Buie, at pp. 1172-1173.)
On appeal, we addressed the question of whether an automobile could
be considered a “tangible article[ ] of a personal nature” within the meaning
of section 852, subdivision (c). (Buie, supra, 179 Cal.App.4th at p. 1173.)
Citing the section 760 presumption that all property acquired by a married
person during marriage is community property, we first concluded that “the
default classification of the Porsche is community property, as it was
acquired during the marriage.” (Buie, at p. 1173.) We then addressed the
question of whether that community property had been transmuted to the
husband’s separate property, noting that section 852, subdivision (a) sets
forth the general rule that for transmutations of property to be valid they
must be made in writing by an express declaration by the spouse whose
interest in the property has been adversely affected. (Buie, at p. 1173.) We
noted that section 852, subdivision (c) provides an exception to that general
rule, allowing a gift from a spouse of a “tangible article[ ] of a personal

55
nature” that is not substantial in value to be transmuted to the other spouse’s
separate property without the writing otherwise required by section 852,
subdivision (a). (Buie, at p. 1173.) Because the wife in that case did not
create a writing stating that she intended to transmute the Porsche to the
husband’s separate property, we concluded the Porsche would be deemed
community property unless it was a tangible article of a personal nature
within the meaning of section 852, subdivision (c). (Buie, at p. 1174.)
In Buie, we concluded that the Porsche automobile was not a “tangible
article[ ] of a personal nature” within the meaning of section 852, subdivision
(c). (Buie, supra, 179 Cal.App.4th at p. 1174.) We stated that the statutory
language required a qualifying gift to be “a gift between the spouses of
clothing, wearing apparel, jewelry, or other tangible articles of a personal
nature that is used solely or principally by the spouse to whom the gift is
made,” citing section 852, subdivision (c), and noted that a Porsche
automobile was obviously not “clothing, wearing apparel, [or] jewelry.” (Buie,
at p. 1174.) We concluded that the statutory language “tangible article[ ] of a
personal nature,” standing on its own, was ambiguous as to whether an
automobile could qualify under that phrase. (Ibid.)
Given the ambiguity of that statutory language in section 852,
subdivision (c), we considered the statute’s legislative history in interpreting
its language. (Buie, supra, 179 Cal.App.4th at p. 1174.) We noted that the
statutory text in section 852, subdivision (c) was originally enacted in 1984 as
part of former Civil Code section 5510.730, based on a recommendation of the
California Law Revision Commission. (Buie, at p. 1174.) We further noted
that the Commission Report commented that the language of a related
statute proposed by the Commission regarding gift presumptions (i.e.,
proposed Civ. Code, § 5110.640, subd. (b)), mirrored much of the language of

56
former Civil Code section 5510.730. (Buie, at p. 1174.) We also noted that
the Commission Report stated that proposed Civil Code section 5110.640,
subdivision (b) would provide that “ ‘[c]lothing, wearing apparel, jewelry, and
other tangible articles of a personal nature, used solely or principally by the
person, are presumed to be the person’s separate property except to the
extent they are substantial in value taking into account the circumstances of
the marriage.’ [Citation.]” (Buie, at pp. 1174-1175.) We then stated:
“Important to our analysis, the Commission Report’s comment to this section
contains the following statement: ‘[I]nterspousal “gifts” are presumed to be
separate or community property depending on the nature of the property
given. Under [proposed] section 5110.640, the gift of an automobile, for
example, would not create a presumption that the property is separate, since
an automobile is not an article of a personal nature within the meaning of the
section.’ [Citation.]” (Buie, at p. 1175.) We stated: “Based on this legislative
history, we conclude that the gift of an automobile does not fall within the
exception set forth in section 852, subdivision (c) because it is not a ‘tangible
article[ ] of a personal nature.’ [Citation.] Accordingly, the family court erred
in relying on section 852, subdivision (c) to conclude that the Porsche was
[the husband’s] separate property.” (Buie, at p. 1175.)
Similarly, in In re Marriage of Cross (2001) 94 Cal.App.4th 1143
(Cross), the court stated: “Section 852 and cases interpreting section 852 or
its predecessor, Civil Code former section 5110.730, address situations where
a couple may agree to transmute the separate property or community
property character of real or personal property—e.g., where a wife agrees to
convert her separate property residence to community property, or where a
wife buys a car for her husband with community property funds. Such a
transmutation in the character of the real or personal property must be

57
evidenced by a writing.” (Cross, at pp. 1147-1148, italics added.) By so
stating, Cross implicitly concluded that a gift of an automobile is not a gift of
a tangible article of a personal nature under section 852, subdivision (c) and
therefore required an express declaration in writing under section 852,
subdivision (a) to effect a transmutation to separate property.
Here, Husband argues, and we agree, that gifts of cash are no more
gifts of “tangible articles of a personal nature” than gifts of automobiles.
Therefore, we conclude that our holding in Buie is dispositive on the question
of whether section 852, subdivision (c) excludes gifts of cash from section 852,
subdivision (a)’s general requirement for an express declaration in writing for
a transmutation to separate property. We further note that cash is distinctly
dissimilar to “clothing, wearing apparel, jewelry, or other tangible articles of
a personal nature that is used solely or principally by the spouse to whom the
gift is made” under section 852, subdivision (c)’s language. Cash is not worn
like clothing or jewelry and is not an “other tangible article[ ] of a personal
nature” that is “used” solely or principally by the other receiving spouse.
(§ 852, subd. (c).) Accordingly, contrary to Wife’s assertion, Husband’s gifts of
cash to her cannot, as a matter of law, be considered gifts of “tangible articles
of a personal nature,” within the meaning of section 852, subdivision (c),
regardless of the parties’ conduct or whether or not they intended those cash
gifts to so qualify (which conduct or intent the trial court here apparently
deemed either dispositive or relevant). Because the record does not show
Husband created or made any writing expressly declaring his intent to
transmute his cash gifts to Wife’s separate property as section 852,
subdivision (a) requires for a transmutation, we conclude the trial court erred
by finding Husband’s gifts of cash to Wife were transmuted to her separate
property and, based on that erroneous finding, by awarding Wife section 2640

58
reimbursement for her contributions from those cash gifts to the down
payment for the purchase of the Property (presumably totaling $400,000),

which contributions were not traced to her separate property.12 (Buie,
supra, 179 Cal.App.4th at p. 1175; see also, Cross, supra, 94 Cal.App.4th at
pp. 1147-1148.)
D
Husband also argues that the trial court erred by awarding Wife
reimbursement for her contribution of the remaining $150,000 toward the
down payment that came from her mother’s estate because she did not
present sufficient documentary evidence tracing those funds to her separate

property as required by section 2640, subdivision (b).13
As discussed above, to the extent a spouse’s separate property funds
are commingled with community property, those separate property funds are
presumed to be community property unless the spouse rebuts that
presumption with documentary evidence tracing the funds to the spouse’s
separate property. (See, e.g., See, supra, 64 Cal.2d at p. 784; Murphy, supra,
15 Cal.3d at p. 919; McLain, supra, 7 Cal.App.5th at p. 274; Braud, supra, 45

12 Contrary to Wife’s apparent assertion, the fact that the cash gifts had
been deposited, invested, or otherwise held in her LMRV account did not
necessarily make those funds her separate property. Rather, section 2640
required that she trace those funds to a separate property source and not to
gifts of cash from Husband without a writing in which he expressly declared
he was transmuting the funds to her as her separate property.

13 Because we addressed above the trial court’s award to Wife of section
2640 reimbursement for cash gifts by Husband presumably totaling
$400,000, which she contributed toward the down payment for the Property
purchase, we now address only the remainder of $150,000 of the court’s total
$550,000 section 2640 reimbursement award to her, which amount it
implicitly found came from her mother’s estate and was therefore her
separate property.
59
Cal.App.4th at pp. 822-823; Frick, supra, 181 Cal.App.3d at p. 1010.) On
appeal, we review a trial court’s finding of fact regarding whether a spouse
has adequately traced funds to a separate property source for substantial
evidence. (Braud, at p. 823.) If substantial evidence supports that factual
finding, we must uphold it even if there is conflicting evidence that supports
contrary inferences. (Grinius, supra, 166 Cal.App.3d at p. 1185; Beam,
supra, 6 Cal.3d at p. 25; Schmidt, supra, 44 Cal.App.5th at p. 582.)
To meet section 2640, subdivision (b)’s tracing requirement, a spouse
generally must present one of two types of proof. In Braud, the court stated:
“Either of two tracing methods may be utilized to characterize the disputed
property interests: ‘direct tracing,’ or ‘family living expense tracing.’
[Citation.]” (Braud, supra, 45 Cal.App.4th at p. 823.) Because neither Wife
nor Husband argues that the latter method was, or should have been, applied
in the circumstances of this case, we describe only the first method of “direct
tracing.” Braud stated: “Under the ‘direct tracing’ method, the disputed
asset . . . is traced to the withdrawal of separate property funds from the
commingled account. This method requires specific records reconstructing
each separate and community property deposit, and each separate and
community property payment as it occurs. Separate property status cannot
be established by mere oral testimony of intent or by records that simply total
up all separate property funds available during the relevant period and all
the separate property expenditures during that period; such records do not
adequately trace to the source of the purchase at the time it was made.
[Citations.]” (Ibid.) Accordingly, under the “direct tracing” method, “if
separate property is commingled with community property in a bank account,
then the owner of the separate property has the burden of keeping records
establishing community funds were exhausted when the purchase was

60
made.” (McLain, supra, 7 Cal.App.5th at p. 273.) In short, “tracing requires
documentary proof.” (Id. at p. 274.)
As discussed above, Wife testified that she had $370,000 in her
separate Citibank account, part of which came from transfers of funds from
her brother from her mother’s estate, which she then transferred to her
LMRV account (presumably thereby commingling those funds with
Husband’s cash gifts). She testified that she received $150,000 from her
mother’s estate, which funds her mother had left for her grandchildren. In
particular, Wife testified that her brother had transferred $100,000 to her
from her mother’s estate, which amount she invested in her LMRV account
for the grandchildren. In or about late January 2016, she transferred a total
of $550,000 from her LMRV account to the escrow account toward the down
payment for the purchase of the Property. By expressly finding Wife’s section
2640 reimbursement claim to be credible, the trial court implicitly found
credible Wife’s testimony that she had received $150,000 from her mother’s
estate and that those funds were therefore her separate property.
Husband argues that Wife provided only her testimony, and no
documentary evidence, to trace her contributions to the down payment for the
Property purchase to her separate property and therefore there is insufficient
evidence to support the trial court’s award to her of section 2640
reimbursement in the total amount of $550,000, which amount presumably
included the $150,000 amount Wife testified she received from her mother’s
estate as her separate property. In particular, Husband cites Wife’s
testimony regarding the source of the $150,000 amount that she testified she
received from her mother’s estate and then presumably commingled with
Husband’s cash gifts in her LMRV account. In particular, Husband cites to
his counsel’s question of Wife asking her, “What document . . . indicates you

61
received $150,000 from your mother?” Wife answered: “My brother had given
me [$]100,000, which he was holding for me to invest in [LMRV].” Husband’s
counsel then asked: “And how did your brother give you the $100,000?” Wife
answered: “That’s between him and my mother. I really would rather not
talk about my mother. She passed away, and it’s a big heartache for me.”
Husband also cites Wife’s testimony that in 2014 or 2015 she received from
her brother a check for $100,000 from her mother’s estate, which check she
believed she deposited in her Wells Fargo Bank account and then transferred
the funds to her LMRV account. However, she could not recall when or
where she received the remaining $50,000 from her mother’s estate.
Husband asserts that Wife did not provide any documentary evidence
showing she received $150,000 from her mother’s estate and, in particular,
did not present a copy of the $100,000 check that her brother delivered to her.
Absent such documentary evidence, he argues substantial evidence does not
support the trial court’s finding that Wife’s contribution of $150,000 toward
the Property purchase, which amount came from her mother’s estate, was
Wife’s separate property and therefore she was entitled to section 2640
reimbursement for that amount. In opposing Wife’s section 2640
reimbursement claim at trial, Husband presented the expert testimony of
William Duerksen, who testified that he had examined Wife’s accounts and
found only $103,000 in her accounts had come from her brother and his
reports were admitted in evidence. He further testified that Wife had
transferred $65,000 to her brother. Based on Duerksen’s testimony and
documentation, Husband argues that substantial evidence does not support
Wife’s testimony, and the court’s finding based thereon, that she received
$150,000 from her mother’s estate. Husband argues that the documentary
evidence shows Wife’s brother transferred to her a net amount of only

62
$38,000 (i.e., $103,000 less $65,000). Even so, he argues Wife did not present
any documentary evidence showing that money came from her mother’s
estate (e.g., she did not present any copies of her mother’s will, trust, or
probate documents). Therefore, Husband argues substantial evidence does
not support any part of the $150,000 amount the trial court impliedly found
that Wife received from her mother’s estate as her separate property and for
which she was entitled to section 2640 reimbursement for contributing it
toward the Property’s purchase price.
Based on our review of the record, we, however, conclude Husband has
not carried his burden on appeal to show that substantial evidence does not
support any part of the $150,000 amount the trial court found came from
Wife’s mother’s estate and was therefore Wife’s separate property for which
she was entitled to section 2640 reimbursement. Rather, the record includes
exhibit 680, which was Duerksen’s draft tracing report that was admitted in
evidence and on which he testified. That documentary evidence showed that
on April 13, 2015, Wife received $100,000 from her brother, Alain Perez, and
that on April 24, 2015, she transferred $100,000 to her LMRV account.
Although Duerksen testified that Wife transferred $65,000 to her brother,
Husband apparently misconstrues the underlying documentary evidence
when he asserts that amount should be deducted from the $100,000 amount
Wife received from him. Husband appears to wrongly believe that the entire
$65,000 amount was transferred by Wife to her brother after his April 13,
2015 transfer of $100,000 to her. Our review of the evidence shows
otherwise. Specifically, exhibit 680 shows that on September 4, 2014, Wife’s
brother transferred $3,000 to her and on April 13, 2015, he transferred
$100,000 to her. Exhibit 680 also shows that Wife made a number of
transfers to her brother, totaling $65,000, but most of those transfers

63
(totaling $47,000) occurred before he made the $100,000 transfer to Wife on
April 13, 2015. Wife made only three transfers (totaling $18,000) to her
brother after April 13, 2015: (1) a $5,000 transfer on August 17, 2015; (2) an
additional $5,000 transfer on August 17, 2015; and (3) an $8,000 transfer on
October 9, 2015.
Considering exhibit 680, along with the testimony of Wife and
Duerksen, we conclude that there is substantial documentary evidence to
support the trial court’s finding that Wife adequately traced her contributions
toward the purchase price for the Property to her separate property, but only
to the extent of the $100,000 amount that she testified she received from her
brother from her mother’s estate. Wife’s receipt of that $100,000 check was
supported by the documentary evidence discussed above (i.e., exh. 680),
Duerksen’s expert testimony tracing her deposit of that check into her
account, and her testimony that she received the check from her brother.
Furthermore, contrary to Husband’s apparent assertion, Wife was not
required to present specific documentary evidence (e.g., will, trust, or other
probate document) showing that the $100,000 amount came from her
mother’s estate and Husband does not cite any statute or case requiring such
documentary evidence. Rather, the trial court could reasonably infer from
Wife’s testimony and her receipt of her brother’s check that the source of the
$100,000 amount was from her mother’s estate and therefore was her
separate property. If, as Husband apparently asserts, that amount did not
come from her mother’s estate or was otherwise not her separate property, he
presumably would have presented opposing testimony or other evidence at
trial showing that it, instead, came from their community property or his
separate property. The absence of such evidence showing the $100,000
payment from her brother came from a source other than her brother from

64
her mother’s estate provides support for the court’s finding that it came from
her mother’s estate and was therefore Wife’s separate property.
We further conclude that Husband has not carried his burden on
appeal to show substantial evidence does not support the court’s $100,000
section 2640 reimbursement to Wife based on her receipt of that amount from
her brother from her mother’s estate, without a deduction he apparently
suggests is required for the $65,000 total amount that Wife transferred to her
brother. First, as discussed above, exhibit 680 shows that $47,000 of the
$65,000 total amount was transferred by Wife to her brother before she
received the $100,000 check from him. Clearly, the court could reasonably
infer that those payments to her brother were irrelevant or, at least,
unpersuasive in determining whether the $100,000 check that Wife later
received from him from her mother’s estate was her separate property.
Second, regarding the three payments, totaling $18,000, that Wife made to
her brother after he delivered the $100,000 check to her, the court could
reasonably infer that those funds did not come from her $100,000 in separate
property from her mother’s estate, but instead from other sources (e.g.,
Husband’s cash gifts, community property, etc.). Husband did not present
evidence below showing that Wife’s $18,000 in payments to her brother
necessarily came from her $100,000 in separate property and, instead,
apparently suggests on appeal that we make that inference contrary to the
trial court’s implied finding. In so doing, he misconstrues and/or misapplies
the substantial evidence standard of review. As discussed above, in applying
the substantial evidence standard of review, we must affirm the trial court’s
finding if substantial evidence supports it, even if other substantial evidence
would have supported a contrary finding. (Schmidt, supra, 44 Cal.App.5th at
p. 582.) We cannot reweigh the evidence, substitute our own inferences from

65
the evidence, or make different assessments of credibility from the trial
court’s assessments. (Ibid.; Ana C., supra, 204 Cal.App.4th at p. 1329.)
Therefore, construing the evidence and inferences therefrom favorably to
support the trial court’s finding, we conclude substantial evidence supports
its implied finding that there was adequate documentary evidence in the
record tracing Wife’s $100,000 contribution toward the Property purchase
price to her separate property and, based thereon, its award of section 2640

reimbursement to Wife in the amount of $100,000.14
Nevertheless, although we conclude substantial evidence supports a
section 2640 reimbursement award to Wife for her $100,000 contribution
toward the Property’s purchase price, we conclude that substantial evidence
does not support the trial court’s award of the remaining $50,000 amount of
the $150,000 amount she testified she received from her mother’s estate. We

14 To the extent Husband so argues, construing the evidence and
inferences therefrom favorably to support the trial court’s findings, we
further conclude that substantial evidence supports the trial court’s implied
finding (e.g., based on exhibit 680 and other documentary evidence,
Duerksen’s expert testimony, and Wife’s testimony) that under the “direct
tracing” method there were specific records admitted in evidence
reconstructing each separate and community property deposit, and each
separate and community property payment as it occurred, which records
showed the community funds and Husband’s cash gifts that had been
commingled with Wife’s separate property in her LMRV account were
exhausted when she contributed the $100,000 amount from her separate
property toward the Property’s purchase price. (Braud, supra, 45
Cal.App.4th at p. 823; McLain, supra, 7 Cal.App.5th at p. 273; cf. In re
Marriage of Cochran (2001) 87 Cal.App.4th 1050, 1059 [detailed records
showing separate property was used were not necessary because other
evidence sufficiently showed respective amounts of separate property and
community property in commingled account such that it could be presumed
after community funds were exhausted that subsequent payments came from
separate property].) Husband has not carried his burden on appeal to
persuade us otherwise.
66
are unaware of, and Wife does not cite, any documentary evidence tracing
that $50,000 amount to Wife’s separate property, whether from her mother’s
estate or otherwise. Furthermore, although the trial court found Wife’s
section 2640 claim to be credible, the credibility of Wife’s testimony regarding
her receipt of $150,000 (which included that $50,000 amount) from her
mother’s estate is insufficient, by itself, to trace that amount to her separate
property in the absence of supporting documentary evidence. (Braud, supra,
45 Cal.App.4th at p. 823; McLain, supra, 7 Cal.App.5th at pp. 273-274.)
Based on our conclusions above, we hold that only $100,000 of the $550,000
amount awarded to Wife in section 2640 reimbursement for her separate
property contributions toward the Property’s purchase price is supported by
substantial evidence under applicable legal principles. Accordingly, we
reverse and vacate $450,000 of the $550,000 award to Wife as erroneously
awarded by the trial court and modify its judgment accordingly.

67
 DISPOSITION
The judgment is reversed to the extent that it awards Wife $450,000 in
section 2640 reimbursement to Wife. $450,000 of the total $550,000 section
2640 reimbursement award to Wife is vacated. The judgment is modified
accordingly to award Wife $100,000 in section 2640 reimbursement and, as so
modified, the judgment is affirmed. The parties shall bear their own costs on
appeal.

O’ROURKE, Acting P. J.

WE CONCUR:

DATO, J.

BUCHANAN, J.

68