This case was last updated from Los Angeles County Superior Courts on 08/16/2022 at 23:59:39 (UTC).

WILLIAM CAMPANA VS CONSUELO SALDANA ET AL

Case Summary

On 07/17/2017 WILLIAM CAMPANA filed a Property - Other Real Property lawsuit against CONSUELO SALDANA. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are CHRISTOPHER K. LUI and STEPHANIE M. BOWICK. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8542

  • Filing Date:

    07/17/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Real Property

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

CHRISTOPHER K. LUI

STEPHANIE M. BOWICK

 

Party Details

Plaintiff and Cross Defendant

CAMPANA WILLIAM

Defendants and Cross Plaintiffs

SALDANA CONSUELO

DOMINGUEZ IVA

DOMINGUEZ MIGUEL

SALDANA CONSUELA

Attorney/Law Firm Details

Petitioner and Plaintiff Attorneys

LOPEZ STEVE ESQ.

LOPEZ STEVE

Respondent and Defendant Attorneys

YEAGER MICAHEL A.

GESELOWITZ DENNIS

GESELOWITZ DENNIS G.

 

Court Documents

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT; HEARING ON MOTION TO ...)

8/22/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT; HEARING ON MOTION TO ...)

Motion re: - MOTION RE: FOR ORDER RELIEVING DEFENDANT OF INADVERTENT ADMISSION

9/12/2019: Motion re: - MOTION RE: FOR ORDER RELIEVING DEFENDANT OF INADVERTENT ADMISSION

Reply - REPLY DEFENDANT'S SUR REPLY TO PLAINTIFF'S REPLY TO DEFENDANTS' OPPOSITION TO MOTION FOR SUMMARY JUDGMENT; POINTS AND AUTHORITIES; AND SUPPORTING DECLARATION

9/12/2019: Reply - REPLY DEFENDANT'S SUR REPLY TO PLAINTIFF'S REPLY TO DEFENDANTS' OPPOSITION TO MOTION FOR SUMMARY JUDGMENT; POINTS AND AUTHORITIES; AND SUPPORTING DECLARATION

Objection - OBJECTION DEFENDANTS' EVIDENTIARY OBJECTIONS TO STATEMENTS ABOUT ALLEGED SETTLEMENT NEGOTIATIONS AND ALLEGED MEDIATION DETAILS IN PLAINTIFF'S REPLY AND AT HEARING

9/12/2019: Objection - OBJECTION DEFENDANTS' EVIDENTIARY OBJECTIONS TO STATEMENTS ABOUT ALLEGED SETTLEMENT NEGOTIATIONS AND ALLEGED MEDIATION DETAILS IN PLAINTIFF'S REPLY AND AT HEARING

Notice - NOTICE NOTICE OF ERRATA AND CORRECTION OF PLAINTIFF'S COMPLAINT

9/25/2019: Notice - NOTICE NOTICE OF ERRATA AND CORRECTION OF PLAINTIFF'S COMPLAINT

Objection - OBJECTION PLAINTIFFS OBJECTIONS TO DEFENDANTS SUR REPLY TO PLAINTIFFS REPLY TO DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENT

9/26/2019: Objection - OBJECTION PLAINTIFFS OBJECTIONS TO DEFENDANTS SUR REPLY TO PLAINTIFFS REPLY TO DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENT

Opposition - OPPOSITION PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO WITHDRAW ADMISSIONS

9/26/2019: Opposition - OPPOSITION PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO WITHDRAW ADMISSIONS

Reply - REPLY DEFENDANT CONSUELO SALDANA'S REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO WITHDRAW ADMISSIONS

10/3/2019: Reply - REPLY DEFENDANT CONSUELO SALDANA'S REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO WITHDRAW ADMISSIONS

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT; HEARING ON MOTION TO ...)

10/9/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT; HEARING ON MOTION TO ...)

Objection - OBJECTION DEFENDANT'S OBJECTIONS TO PLAINTIFF'S UNILATERAL AMENDMENT OF THE COMPLAINT, BOTH WITHOUT LEAVE IN VIOLATION OF CCP 472 AND PLEADING HEARING ON MOTION FOR SUMMARY JUDGMENT

10/21/2019: Objection - OBJECTION DEFENDANT'S OBJECTIONS TO PLAINTIFF'S UNILATERAL AMENDMENT OF THE COMPLAINT, BOTH WITHOUT LEAVE IN VIOLATION OF CCP 472 AND PLEADING HEARING ON MOTION FOR SUMMARY JUDGMENT

Order - ORDER GRANTING LEAVE TO WITHDRAW ADMISSIONS

10/28/2019: Order - ORDER GRANTING LEAVE TO WITHDRAW ADMISSIONS

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT; HEARING ON MOTION TO ...)

10/28/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT; HEARING ON MOTION TO ...)

Notice of Ruling

10/31/2019: Notice of Ruling

Notice of Case Reassignment and Order for Plaintiff to Give Notice

1/10/2020: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Motion for Leave to Amend - MOTION FOR LEAVE TO AMEND TO FILE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES

1/15/2020: Motion for Leave to Amend - MOTION FOR LEAVE TO AMEND TO FILE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES

Proof of Service by Mail

1/15/2020: Proof of Service by Mail

Declaration - DECLARATION OF STEVE LOPEZ

1/15/2020: Declaration - DECLARATION OF STEVE LOPEZ

Notice - NOTICE OF ENTRY OF ORDER OR JUDGMENT

1/22/2020: Notice - NOTICE OF ENTRY OF ORDER OR JUDGMENT

246 More Documents Available

 

Docket Entries

  • 06/06/2022
  • Docketat 10:00 AM in Department 76, Christopher K. Lui, Presiding; Non-Jury Trial ((Day 6)) - Held - Taken under Submission

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  • 06/06/2022
  • DocketMinute Order ( (Non-Jury Trial (Day 6))); Filed by Clerk

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  • 06/06/2022
  • DocketStipulation and Order to use Certified Shorthand Reporter; Filed by Clerk

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  • 05/03/2022
  • Docketat 10:00 AM in Department 76, Christopher K. Lui, Presiding; Non-Jury Trial ((Day 5)) - Held

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  • 05/03/2022
  • DocketMinute Order ( (Non-Jury Trial (Day 5))); Filed by Clerk

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  • 05/02/2022
  • Docketat 11:00 AM in Department 76, Christopher K. Lui, Presiding; Non-Jury Trial ((Day 4))

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  • 04/29/2022
  • DocketDefendants' Offer of Proof During Trial; Filed by Consuelo Saldana (Defendant); Iva Dominguez (Defendant); Miguel Dominguez (Defendant)

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  • 04/29/2022
  • DocketRequest for Judicial Notice (in support of Tender of Proof); Filed by Consuelo Saldana (Defendant); Iva Dominguez (Defendant); Miguel Dominguez (Defendant)

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  • 04/28/2022
  • Docketat 10:00 AM in Department 76, Christopher K. Lui, Presiding; Non-Jury Trial ((Day 3))

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  • 04/27/2022
  • Docketat 10:00 AM in Department 76, Christopher K. Lui, Presiding; Non-Jury Trial ((Day 2))

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364 More Docket Entries
  • 08/29/2017
  • DocketPROOF OF SERVICE SUMMONS

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  • 07/24/2017
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 07/24/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 07/18/2017
  • DocketNotice of Lis Pendens; Filed by William Campana (Plaintiff)

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  • 07/18/2017
  • DocketNOTICE OF PENDENCY OF ACTION (LIS PENDENS)

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  • 07/17/2017
  • DocketComplaint; Filed by William Campana (Plaintiff)

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  • 07/17/2017
  • DocketCOMPLAINT FOR PARTITION OF REAL PROPERTY (CCP SECTION 872.21O, 872.230); AND FOR ACCOUNTING, PARTNERSHIP DISSOLUTION, CONSTRUCTIVE TRUST, COMMON COUNT, AND DAMAGES FOR BREACH OF FIDUCIARY DUTY

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  • 07/17/2017
  • DocketCIVIL CASE COVER SHEET

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  • 07/17/2017
  • DocketSUMMONS

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  • 07/17/2017
  • DocketSummons (on Complaint); Filed by William Campana (Plaintiff)

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Tentative Rulings

Case Number: ****8542 Hearing Date: March 29, 2022 Dept: 76

This is an action to partition real property owned by a partnership and to dissolve the partnership.

Defendants filed a cross-complaint to quiet title, claiming Plaintiff does not have any actual ownership interest in the property.

Defendants Consuelo Saldana, Miguel Dominguez and Iva Dominguez move for judgment on the pleadings, summary judgment or summary adjudication as to the Second Amended Complaint.

Plaintiff William Campana moves for summary judgment / summary adjudication as to the Second Amended Complaint.

Cross/Defendant Plaintiff William Campana moves for summary judgment / summary adjudication as to the Second Amended Cross-Complaint.

TENTATIVE RULING

Defendants Consuelo Saldana, Miguel Dominguez and Iva Dominguez’s motion for judgment on the pleadings, motion for summary judgment, and motion for summary adjudication as to the Second Amended Complaint is DENIED.

Plaintiff William Campana’s motion for summary judgment for an interlocutory judgment of partition by sale as to Second Amended Complaint is DENIED.

Cross/Defendant Plaintiff William Campana’s motion for summary judgment and motion for summary adjudication as to the Second Amended Cross-Complaint is DENIED.

ANALYSIS

Defendants’ Motion For Judgment On The Pleadings / Summary Judgment or Summary Adjudication As To Second Amended Complaint

Request For Judicial Notice

Defendants request that the Court take judicial notice of the following: (1) Plaintiff’s Complaint Filed July 17, 2017; (2) Plaintiff’s Motion for Summary Judgment dated April 2, 2019 and supporting documents; (3) Plaintiff’s Counsel’s Declaration Signed January 15, 2020, in support of Motion to File Amended Complaint; (4) This Court’s ruling dated February 3, 2020; (5) Plaintiff’s Filed Request for Dismissal of Counts Two through Six of the Second Amended Complaint, filed on or about July 7, 2021. Requests Nos. 1 – 5 are GRANTED per Evid. Code 452(d)(court records).

Defendant’s Evidentiary Objections

No. 1: OVERRULED as to recorded deed. Relevant; sufficient foundation. SUSTAINED as to accusations that Plaintiff lied—lack of foundation.

No. 2: OVERRULED. Relevant; permissible legal argument as to characterization of pleadings.

No. 3: OVERRULED. Relevant; permissible legal argument as to characterization of pleadings and discovery.

No. 4: OVERRULED. Relevant; permissible legal argument as to characterization of pleadings.

No. 5: OVERRULED. Relevant; permissible legal argument as to characterization of pleadings and discovery.

No. 6: SUSTAINED. Lack of foundation.

No. 7: SUSTAINED. Declaration made on information and belief has no evidentiary value; lack of foundation as to suggestion that Plaintiff lied.

No. 8: OVERRULED. Relevant; factual history of the case.

No. 9: OVERRULED. Relevant; factual history of the case.

Discussion

Defendants Consuelo Saldana, Miguel Dominguez and Iva Dominguez move for judgment on the pleadings, summary judgment or summary adjudication as to the Second Amended Complaint.

The Court will not address this motion as one for judgment on the pleadings pursuant to CCP 438 because Defendants did not submit a meet and confer declaration as required by CCP 439. However, if necessary, the Court has discretion to treat a motion for summary judgment as one for judgment on the pleadings. (Stolz v. Wong Communications Limited Partnership (1994) 25 Cal.App.4th 1811, 1817.)

Following Plaintiff’s dismissal of the second, third, fourth, fifth and sixth causes of action from the Second Amended Cross-Complaint without prejudice, the only remaining causes of action are the first cause of action for partition and the seventh cause of action to quiet title. In this regard, even though this motion is captioned as one for a motion for summary adjudication in the alternative, the separate statement does not comply with Rule 3.1350(d), which provides:

CRC Rule 3.1350(d) provides:

The Separate Statement of Undisputed Material Facts in support of a motion must separately identify each cause of action, claim, issue of duty, or affirmative defense, and each supporting material fact claimed to be without dispute with respect to the cause of action, claim, issue of duty, or affirmative defense. In a two-column format, the statement must state in numerical sequence the undisputed material facts in the first column followed by the evidence that establishes those undisputed facts in that same column. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.

(Calif. Rules of Court, Rule 3.1350(d)[bold emphasis and underlining added].)

Here, the separate statement does not identify the evidence which supports summary adjudication in Defendants’ favor as to each cause of action. Notably, the elements of partition and quiet title are dissimilar, so the defect is not trivial. The Court hereby exercises its discretionary power to deny summary adjudication for failure to comply with CRC Rule 3.1350. (Truong v. Glasser (2009) 181 Cal.App.4th 102, 118.)

Given the foregoing discussion, the Court will only treat this as a motion for summary judgment. As such, Defendants must demonstrate that they are entitled to adjudication as to both causes of action in order to prevail on summary judgment. (Twain Harte Assocs. v. County of Tuolumne (1990) 217 Cal.App.3d 71, 79-80.)

To state a cause of action to quiet title, the plaintiff must allege: (1) plaintiff is the owner; (2) in possession of the land; (3) defendant claims an interest adverse to plaintiff; and (4) defendant’s claim is without right. (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 740-41.) However, “‘a party who would quiet his title must prevail, if at all, on the strength of his own title and not on the weakness of the claims of an adversary.’ (Citations omitted.)” (Kunza v. Gaskell (1979) 91 Cal.App.3d 201, 207.)

A co-owner of real or personal property may bring an action for partition. (Code Civ. Proc., 872.210.) “The primary purpose of a partition suit is, as the terminology implies, to partition the property, that is, to sever the unity of possession. [Citations.]” (Schwartz v. Shapiro (1964) 229 Cal.App.2d 238, 257 [40 Cal.Rptr. 189] (Schwartz).) “Partition is a remedy much favored by the law. The original purpose of partition was to permit cotenants to avoid the inconvenience and dissension arising from sharing joint possession of land. An additional reason to favor partition is the policy of facilitating transmission of title, thereby avoiding unreasonable restraints on the use and enjoyment of property.” (59A Am.Jur.2d (2003) Partition, 6, p. 15, fns. omitted.) In lieu of dividing the property among the parties, the court shall order the property be sold and the proceeds divided among the parties in accordance with their interests in the property if the parties agree to such relief or the court determines sale and division of the proceeds would be more equitable than a division of the property. (Code Civ. Proc., 872.820.) Here the parties agreed partition by sale was more equitable than partition in kind. A co-owner of property has an absolute right to partition unless barred by a valid waiver. (Code Civ. Proc., 872.710, subd. (b).) “[T]he right of partition may be waived by contract, either express or implied.” (American Medical International, Inc. v. Feller (1976) 59 Cal.App.3d 1008, 1014 [131 Cal.Rptr. 270].) “An agreement giving rights of first refusal to the other tenants implies an agreement not to bring a partition action in lieu of a sale to the cotenants [citation].” (Harrison v. Domergue (1969) 274 Cal.App.2d 19, 21 [78 Cal.Rptr. 797].)

(LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 493.)

Defendants’ motion appears to be based on the following argument: Plaintiff originally alleged that a partnership agreement existed between decedent Mario Campana and Defendant Consuelo Saldana to purchase the property in 1993; Plaintiff dismissed the causes of action based upon the partnership theory because Plaintiff knew this theory was a lie. This lie pollutes the remaining claims for partition and quiet title, as Plaintiff is bound by the earlier judicial admission that a partnership existed.

Defendants argue that the only purchase of the property occurred in 1987, and the partnership never held the property in its name. (UFs Nos. 1 -3; Geselowitz Decl., Exh. B.) Thus, Defendants argue, that Plaintiff is precluded from proving that the partnership, as his predecessor in interest, obtained title in 1993.

Defendants also argue that Plaintiff’s father, Mario Campana, “clouded title” he obtained ab initio by failing to properly identify himself or his recorded interest correctly because his interest was recorded as an unmarried man, yet he was married at the time. Moreover, Plaintiff could not obtain title less clouded than his father’s. (UF No. 4; Geselowitz Decl., Exhs. B-3, B-4.)

The Court first addresses Defendant’s argument that Mario Campana being referred to as an “unmarried man” when in fact he was married somehow clouds or invalidates his title claim. This argument is meritless. The marital status of a grantee is merely descriptive and surplusage: “It is immaterial that in the deed defendant and Ivie Anderson are referred to as "husband and wife," whereas in fact their marriage was invalid, since the term was merely descriptive and surplusage. (McWhorter v. McWhorter, 99 Cal.App. 293, 295 [278 P. 454].)” (Collins v. Neal (1951) 107 Cal.App.2d 790, 793-94.)

We are of the opinion that it is entirely immaterial so far as the determination of this appeal is concerned, whether they lived together in good faith as husband and wife, or otherwise. The evidence is ample to support the finding that they acquired and held the property as joint tenants. The deed to the real property expressly conveyed it to them as joint tenants. It is true that the deed did run to "Michael McWhorter and Hattie McWhorter, his wife, as joint tenants," and that plaintiff was not in fact the lawful wife of the defendant, nor was her name really McWhorter. The term "his wife," which was used in the deed was merely descriptive and surplusage. The identity of the grantee Hattie McWhorter not being questioned, although the name was assumed without warrant, it was nevertheless a good and valid conveyance. In 9 Cal. Jur. 127, section 30, it is said: "A grant to an actual person, by a fictitious or assumed name by which he is known and passes, or which he has assumed for the occasion, is valid." ( Emery v. Kipp, 154 Cal. 83 [129 Am. St. Rep. 141, 16 Ann. Cas. 792, 19 L.R.A. (N.S.) 983, 97 P. 17]; Knaugh v. Baender, 84 Cal. App. 142, 148 [257 P. 606].) Both the real and the personal property which is involved in the present action were acquired, held and used by the respective parties as joint tenants. "A joint interest is one owned by several persons in equal shares, by a title created by a single will or transfer, when expressly declared in the will or transfer to be a joint tenancy . . . ." ( Sec. 683, Civ. Code.) The plaintiff was in possession of the household goods as completely as was the defendant, and the evidence amply shows that she contributed an equal share to the purchase of the goods. The question of the validity of the marriage in no way affects the character of the property or the relative rights of ownership.

(McWhorter v. McWhorter (1929) 99 Cal. App. 293, 295 [bold emphasis added].)

As such, there is no basis for finding that there was a cloud on title as to the interest taken by Mario Campana by way of the Grant Deed recorded on October 5, 1987 (Exhibit B to the Declaration of Dennis G. Gelelowitz). That Grant Deed purported to convey title to Mario Campana and Consuelo Saldana as joint tenants, and was valid on its face.

Defendant also argues that Plaintiff is bound by his earlier allegations that there was a partnership agreement between Mario Campana and Defendant Consuelo Saldana, but such allegations were admitted to be a lie. However, the allegations of partnership pertained to a right to an accounting and imposition of a fiduciary duty, which are superfluous to Plaintiff’s remaining theory of partition—which a joint tenant has as a matter of right[1]—and to quiet title. The existence of the partnership is not an essential element of either cause of action. The relevant fact is that Plaintiff’s alleged predecessor in interest—Mario Campana—held record title as a joint tenant with Defendant Consuelo Saldana. The relevant inquiry is whether Mario Campana’s joint tenancy interest was validly conveyed to Plaintiff.

In this regard, the doctrine of estoppel by deed—which “generally precludes a grantor of real property from asserting, as against the grantee, any right or title in derogation of the deed[2]—is of no assistance to Defendants.

Here, Defendants’ separate statement does not cite evidence which establishes that Plaintiff never received a joint tenancy interest in the subject property from Mario Campana. As such, Defendants have failed to demonstrate that Plaintiff cannot establish the elements of causes of action for partition and quiet title. The burden does not shift to Plaintiff to demonstrate that a triable issue of material fact exists.

For the foregoing reasons, Defendants’ motion for judgment on the pleadings, motion for summary judgment, and motion for summary adjudication as to the Second Amended Complaint is DENIED.

Plaintiff’s Motion For Summary Judgment or Summary Adjudication As To Second Amended Complaint

Request For Judicial Notice

Defendants request that the Court take judicial notice of the following:

(1) This Court’s ruling dated February 3, 2020; (2) Plaintiff’s Verified Second Amended Complaint Filed February 28, 2020; (3) Plaintiff’s Motion for Summary Judgment dated April 2, 2019 and supporting documents; (4) Defendants’ Opposition to Summary Judgment, Points and Authorities, Declarations, Separate Statement of Disputed Facts, Evidentiary Objections and Request For Judicial Notice filed August 6, 2019; (5) Court ruling dated October 28, 2019 Denying Plaintiff’s Motion for Summary Judgment Or Alternatively Summary Adjudication on Partition Claim. Requests Nos. 1 – 5 are GRANTED per Evid. Code 452(d)(court records).

Plaintiff’s Evidentiary Objections

Declaration of Iva Dominguez

Pursuant to CCP 437c(q), the Court only rules upon the following objections to evidence which the Court deems to be material to the disposition of this motion.

No. 3: OVERRULED. This lack of foundation may be remedied at trial with documentary evidence. Lack of authentication and foundation may be remedied at trial and the evidence may be considered on summary judgment. (Sweetwater Union High School Dist. V. Gilbane Building Do.(2019) Cal.5th 931, 947-49.) The standard on summary judgment is whether the evidence presented is incurably inadmissible at trial, for instance, due to a categorical bar to admissibility that will exist at the time of trial. (Harris v. Thomas Dee Engineering Co., Inc. (2021) 68 Cal.App.5th 594, 602-03.)

No. 4: OVERRULED. See above re: No. 3.

No. 5: OVERRULED. See above re: No. 3.

Exhibits

No. 1: OVERRULED. A violation of the CRC Rules does not render the evidence inadmissible.

Discussion

Plaintiff William Campana moves for summary judgment / summary adjudication as to the Second Amended Complaint.

The Court addresses Defendants’ argument that Plaintiff has violated CCP 437c(f)(2) by bringing this motion for summary judgment despite the Court having denied Plaintiff’s motion for summary judgment on October 28, 2019.

CCP 437c(f)(2) provides in pertinent part:

A party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.

(Civ. Proc. Code 437c(f)(2).)

In the October 28, 2019 minute order, Judge Bowick ruled that Plaintiff did not move for summary adjudication as to the partition cause of action, and the Court could not grant Plaintiff’s motion for summary judgment, yet nonetheless considered the merits of Plaintiff’s motion on the first cause of action. Notably, that motion for summary judgment was directed to the original Complaint.[3] After the Court issued its ruling on October 28, 2019, Plaintiff filed a “Second” Amended Complaint on February 28, 2020.

The Court will allow Plaintiff to bring this motion for summary judgment / summary adjudication. First, the motion is directed to an amended complaint. Second, the Court has discretion to permit a renewed motion for summary judgment based upon new evidence which was not presented with the original motion. “[N]either Barthold nor Le Francois limits a trial court's authority to permit a party to file a successive motion for summary judgment and/or adjudication supported by evidence that was not presented in connection with a prior motion.” (Marshall v. Cty. of San Diego (2015) 238 Cal.App.4th 1095, 1107.)

Judge Bowick denied Plaintiff’s motion for summary judgment because Plaintiff relied upon the requests for admission which had been deemed admitted against Defendant Consuelo Saldana, but which the Court was concurrently setting aside, thereby depriving Plaintiff of the only evidence upon which he relied. (See October 28, 2019 minute order, Pages 7 and 8.) So long as Plaintiff is not relying upon such deemed requests for admission (which he is not), the Court has discretion to allow this motion for summary judgment / summary adjudication directed to an amended pleading.

Plaintiff’s separate statement only addresses the partition cause of action, not the quiet title cause of action. As such, the Court only addresses the partition cause of action.

(a) A joint interest is one owned by two or more persons in equal shares, by a title created by a single will or transfer, when expressly declared in the will or transfer to be a joint tenancy, . . . .

(Civ. Code 683(a)[bold emphasis added].)

Except as provided in Section 872.730[4], partition as to concurrent interests in the property shall be as of right unless barred by a valid waiver.” (Civ. Proc. Code, 872.710(b).

A co-owner of real or personal property may bring an action for partition. (Code Civ. Proc., 872.210.) “The primary purpose of a partition suit is, as the terminology implies, to partition the property, that is, to sever the unity of possession. [Citations.]” (Schwartz v. Shapiro (1964) 229 Cal.App.2d 238, 257 [40 Cal.Rptr. 189] (Schwartz).) “Partition is a remedy much favored by the law. The original purpose of partition was to permit cotenants to avoid the inconvenience and dissension arising from sharing joint possession of land. An additional reason to favor partition is the policy of facilitating transmission of title, thereby avoiding unreasonable restraints on the use and enjoyment of property.” (59A Am.Jur.2d (2003) Partition, 6, p. 15, fns. omitted.) In lieu of dividing the property among the parties, the court shall order the property be sold and the proceeds divided among the parties in accordance with their interests in the property if the parties agree to such relief or the court determines sale and division of the proceeds would be more equitable than a division of the property. (Code Civ. Proc., 872.820.) Here the parties agreed partition by sale was more equitable than partition in kind. A co-owner of property has an absolute right to partition unless barred by a valid waiver. (Code Civ. Proc., 872.710, subd. (b).) “[T]he right of partition may be waived by contract, either express or implied.” (American Medical International, Inc. v. Feller (1976) 59 Cal.App.3d 1008, 1014 [131 Cal.Rptr. 270].) “An agreement giving rights of first refusal to the other tenants implies an agreement not to bring a partition action in lieu of a sale to the cotenants [citation].” (Harrison v. Domergue (1969) 274 Cal.App.2d 19, 21 [78 Cal.Rptr. 797].)

(LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 493.)

The elements of a cause of action for partition of real property is set forth in CCP 872.230 as follows:

(a) A description of the property that is the subject of the action. In the case of tangible personal property, the description shall include its usual location. In the case of real property, the description shall include both its legal description and its street address or common designation, if any.

(b) All interests the plaintiff has or claims in the property.

(c) All interests of record or actually known to the plaintiff that persons other than the plaintiff have or claim in the property and that the plaintiff reasonably believes will be materially affected by the action, whether the names of such persons are known or unknown to the plaintiff.

(d) The estate as to which partition is sought and a prayer for partition of the interests therein.

(e) Where the plaintiff seeks sale of the property, an allegation[5] of the facts justifying such relief in ordinary and concise language.

(Civ. Proc. Code 872.230.)

Here, Plaintiff has submitted evidence of the description of the property, including the street address—6438 Hazeltine Ave., Unit 6, Los Angeles, CA 91404 (2AC, 14)—and the legal description contained in the Deed of Trust recorded on October 5, 1987. (UF No. 1; 2AC, 14; Campana Decl., 2, Exh. A.) (Civ. Proc. Code 872.230(a)).

Plaintiff claims a 50% interest in the property with the other 50% interest held in joint tenancy with Defendants Iva Miguel Dominguez and Miguel A. Dominguez. (UF No. 8; Campana Decl., 2-7; Exh. A [Grant Deed recorded on October 5, 1987, granting the subject property from a Denise Dukoff/Denise Feathers, to Mario Campana and Consuelo Saldana as joint tenants]; Exh. B [Grant Deed recorded on February 18, 2014, granting Defendant Consuelo Saldana’s undivided 50% interest to Miguel A. Dominguez and Iva C. Dominguez, Husband and Wife as Joint Tenants, as to the undivided 50% interest]; Exh. C [Quitclaim Deed recorded on August 1, 2013, transferring Mario Campana’s interest in the property to Plaintiff William Campana, a married man, as a bona fide gift[6].] (Civ. Proc. Code 872.230(b), (c)).

The 2AC sets forth the estate to which partition is sought [one-half of the entire fee title held as tenants in common] and a prayer for partition of the interests therein (2AC, 22-24 and Prayer as to First Cause of Action; Civ. Proc. Code, 872.230(d).)

Plaintiff also alleges facts justifying relief in the form of sale of the property. (2AC, 25; Civ. Proc. Code 872.230(e); see also UF No. 12; Gallegos Decl., 8 [indicating that the physical characteristics of the property and density of the existing structure on a narrow low make division of property in kind impracticable].)

Plaintiff also submits that there exists no agreement between the plaintiff William Campana and the defendants Iva Dominguez ("Iva") and her husband Miguel Dominguez ("Miguel") nor waiver by the plaintiff, that would bar sale or partition of real property by sale. (UF No. 13; Campana Decl., 9[7].)

Accordingly, Plaintiff has demonstrated that he is entitled to partition of the property by sale as a joint tenant holding a 50% interest in the property. The burden shifts to Defendants to demonstrate that a triable issue of material fact exists.

In the Opposition, Defendants make much of the argument that Plaintiff abandoned his original argument that the subject property was acquired by Defendant Consuelo Saldana and decedent Mario Campana pursuant to a partnership agreement in 1993. (See Opp. Fact No. 3.) However, the existence of a partnership agreement is superfluous to the face of the Grant Deed, whereby Consuelo Saldana and Mario Campana were granted title to the subject property as joint tenants.

Defendants’ focus on the fact that Mario Campana was listed as an unmarried man even though he was married is likewise irrelevant for the reasons discussed above re: Defendants’ motion for summary judgment. As discussed above, this did not “cloud” Mario’s title, and thus, Mario could convey his 50% joint tenancy interest in the subject property to Plaintiff by quitclaim deed.

Defendants also dispute that physical partition of the property would be impractical and that a cash sale would be equitable. (Opp. Fact Nos. 13, 14; Dominguez Decl., 3 – 8; Court Order dated October 28, 2019.) Here, Defendant Iva Dominguez has presented facts which raise a triable issue of material fact as to whether partition by sale would be more equitable than division in kind.

There is a triable issue as to whether division in kind—i.e., physically dividing the property in half into two equal parcels, thereby creating a situation where, in order to remain in possession of the entire condominium unit, Defendants would have to pay rent to Plaintiff for his half of the property, or purchase his half—is more equitable than division by sale—whereby Plaintiff and Defendants would split the proceeds of the sale of the entire property, 50% to Plaintiff and 50% to Defendants, with the possibility that Defendants would have to move out. Against this backdrop is the equitable consideration that Defendant Consuelo Saldana made all mortgage payments and paid off the loan (Dominguez Decl., 4) and Defendants have lived in the home for over 34 years. (Dominguez Decl., 5.) The parties will have to present evidence to the Court, which will exercise its equitable discretion at trial. Indeed, partition by physical division is favored unless sale would be more equitable, such as where a subdivision into subparcels of equal value cannot be made or division of the land would substantially diminish the value of each parties’ interest. (Butte Creek Island Ranch v. Crim (1982) 136 Cal. App. 3d 360, 365-69.)

California law has been in accord. Partition in kind is favored in law and in the absence of proof to the contrary the presumption in favor of in kind division will prevail. (See Williams v. Wells Fargo Bank (1943) 56 Cal.App.2d 645, 647 [133 P.2d 73].) A forced sale is strongly disfavored. (Ibid.)

In 1976, after a study by the Law Revision Commission, California's scheme for partition actions was amended. (Stats. 1976, ch. 73, p. 107.) Of particular interest here was the repeal of Code of Civil Procedure sections 752, 752a, and 763, and the enactment of Code of Civil Procedure sections 872.810 and 872.820. The former sections provided for division by sale only where physical division would cause "great prejudice" to the parties. The new provisions provide for a presumption in favor of physical division which will control in the absence of proof that under the circumstances sale would be "more equitable" than division. In proposing this change the Law Revision Commission explained that the presumption in favor of physical division should continue but that "[in] many modern transactions, sale of the property is preferable to physical division since the value of the divided parcels frequently will not equal the value of the whole parcel before division. Moreover, physical division may be impossible due to zoning restrictions or may be highly impractical, particularly in the case of urban property. [para. ] The Commission recommends that partition by physical division be required unless sale would be 'more equitable.' This new standard would in effect preserve the traditional preference for physical division while broadening the use of partition by sale." (13 Cal. Law Revision Com. Rep., Reports Recommendations and Studies (1975-1976) pp. 413-414.)

The 1976 revision of the California partition provisions did not change the preference in favor of physical division. ( Richmond v. Dofflemyer (1980) 105 Cal.App.3d 745, 757 [164 Cal.Rptr. 727].) Partition in kind is favored "since this does not disturb the existing form of inheritance or compel a person to sell his property against his will. Forced sales are strongly disfavored. [Citation.]" (Ibid.) The burden of proof remains upon the party endeavoring to force a sale. (Ibid.) Thus, while the new standard may be said to expand the availability of partition sales, it does not permit a partition sale in the absence of sufficient proof of the equities of such a method of partition.

There are two types of evidence which have been held sufficient to justify a partition sale of property rather than physical division. The first is evidence that the property is so situated that a division into subparcels of equal value cannot be made. (59 Am.Jur.2d, supra, at p. 864.) This test is not met by evidence that a portion of the property is not equal to the whole, for that is always the case in a partition action. Nor is this test met by evidence that the land is not "fungible" or uniform in character. (See Williams v. Wells Fargo Bank, supra, 56 Cal.App.2d at pp. 647-648.) In order to meet this test the party desiring a partition sale must show that the land cannot be divided equally. (East Shore Co. v. Richmond Belt Railway (1916) 172 Cal. 174, 180 [155 P. 999].) . . .

. . . [*367] . . .

The second type of evidence which supports a partition sale rather than physical division is economic evidence to the effect that, due to the particular situation of the land, the division of the land would substantially diminish the value of each party's interest. (See 59 Am.Jur.2d, supra, pp. 864-865.) The generally accepted test in this regard is whether a partition in kind would result in a cotenant receiving a portion of the land which would be worth materially less than the share of the money which could be obtained through sale of the land as a whole. (Ibid.) This is a purely economic test. If plaintiff, who demands that the land be sold, can receive a portion of the land through physical division and that portion could be sold for a sum equal to the amount it could realize through sale of the entire parcel then as a matter of law no economic prejudice can be shown. The manifest inequity of ousting an unwilling cotenant from the land where no economic detriment is suffered cannot be permitted. An example of this type of situation is provided in Formosa Corp. v. Rogers (1951) 108 Cal.App.2d 397 [239 P.2d 88], there a 17.4 acre movie studio had been developed in such a unique manner that physical division would result in damage to the aggregate value of the land in the amount of $ 1.5 million. ( Id., at p. 402.)

Plaintiff introduced no evidence whatsoever to establish that the aggregate economic value of the land would be diminished through physical division. Plaintiff's assertion that the evidence fails to establish that the aggregate value of the land would not be diminished through physical division misplaces the burden of proof. That burden was upon plaintiff as the cotenant who desired to force the sale of the land. The absence of evidence on the issue redounds to the benefit of defendant as the cotenant who desired to retain physical possession of the land.

Plaintiff directed no evidence towards proving that the land cannot be equally divided or that the aggregate economic value of the land would be diminished through division. Instead, plaintiff directed its evidence and argument towards proving the obvious conclusion that sole ownership of the entire 181 acres of parcel B would be more advantageous to it than would ownership of only one-half thereof. This is conceded but irrelevant. "A sale cannot be decreed in partition merely to advance the interests of one of the owners; before ordering a sale, the court must ascertain that the interests of all will thereby be promoted." (59 Am.Jur.2d, supra, at p. 865. See also Williams v. Wells Fargo Bank, supra, 56 Cal.App.2d at p. 647.) This is manifest in California's rule that physical division is required unless a sale is more equitable. "[Equity] is equality'. In every instance where principles of equity are sought to be applied the idea of equality compels consideration of the rights of all parties concerned. [para. ] Equality must be distinguished from expediency or individual solicitude." ( H. K. McCann Co. v. Week (1931) 115 Cal.App. 393, 398 [1 P.2d 452].)

Plaintiff had and has no intention of yielding up physical possession of the land. It sought a forced sale of the land in order to acquire defendant's interest which he did not desire to sell. This is nothing short of the private condemnation of private land for private purposes, a result which is abhorrent to the rights of defendant as a freeholder. When the record is stripped of the obvious but irrelevant evidence that plaintiff would prefer to own all of parcel B this case presents a simple issue. The trial court was presented with two equal cotenants, neither of whom desired to yield up possession of the land, and no evidence that the land could not be equally divided or that such division would diminish the economic value of either cotenant's interest. Under such circumstances no result other than physical division was possible and the order that the land be sold was an abuse of discretion. The interlocutory judgment must therefore be reversed.

(Butte Creek Island Ranch v. Crim (1982) 136 Cal. App. 3d 360, 365-69 [bold emphasis and underlining added].)

As such, the motion for summary judgment for an interlocutory judgment of partition by sale as to the Second Amended Complaint is DENIED.

Cross-Defendant/Plaintiff’s Motion For Summary Judgment or Summary Adjudication As To Second Amended Cross-Complaint

Request For Judicial Notice

Cross-Complainants request that the Court take judicial notice of the following:

(1) Plaintiff’s Verified Second Amended Complaint Filed February 28, 2020; (2) Plaintiff’s Motion for Summary Judgment dated April 2, 2019 and supporting documents; (3) Court ruling dated October 28, 2020 Overruling Demurrer by Cross-Defendant Campana to Cross-Complaint; (4) This Court’s ruling dated February 13, 2020. Requests Nos. 1 – 4 are GRANTED per Evid. Code 452(d)(court records).

Cross-Defendant’s Evidentiary Objections

Pursuant to CCP 437c(q), the Court only rules upon the following objections asserted against evidence which the Court deems to be material to the disposition of this motion:.

Exhibits

No. 1: OVERRULED. A violation of the CRC Rules does not render the evidence inadmissible.

Discussion

Cross/Defendant Plaintiff William Campana moves for summary judgment / summary adjudication as to the Second Amended Cross-Complaint.

The Second Amended Cross-Complaint asserts a single cause of action to quiet title.

Even though this motion is captioned as one for a motion for summary adjudication in the alternative, the separate statement does not comply with Rule 3.1350(d), which provides:

CRC Rule 3.1350(d) provides:

The Separate Statement of Undisputed Material Facts in support of a motion must separately identify each cause of action, claim, issue of duty, or affirmative defense, and each supporting material fact claimed to be without dispute with respect to the cause of action, claim, issue of duty, or affirmative defense. In a two-column format, the statement must state in numerical sequence the undisputed material facts in the first column followed by the evidence that establishes those undisputed facts in that same column. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.

(Calif. Rules of Court, Rule 3.1350(d)[bold emphasis and underlining added].)

Here, the separate statement does not identify the evidence which supports summary adjudication in Cross-Defendant’s favor as to the three issues identified at Page 2:12-20 of the Notice of Motion. Nonetheless, there is only one cause of action to quiet tile pled in the Second Amended Cross-Complaint. Further, although the motion refers to a claim for punitive damages in the fourth count of the second cause of action and in the fifth cause of action, the Second Amended Cross-Complaint only asserts one cause of action to quiet title. (See 2ACC, Pages 8 – 9.) Indeed, the Prayer does not seek punitive damages. (See 2ACC, Prayer.) As such, the motion’s reference to punitive damages is MOOT and need not be addressed.

The Court first addresses Cross-Defendant’s argument that the quiet title cause of action is barred by the statute of limitations. The statute of limitations would not begin to run against cross-complainants seeking to quiet title while they are in possession of the property, until Cross-Defendant (as Plaintiff in this lawsuit) filed the instant lawsuit to quiet title in his favor. Here, Cross-Defendant has failed to cite evidence that Cross-Complainants did not continue to live at the property as their primary residence, as alleged in the 2ACC at 10.

The applicable statute of limitations for purposes of our analysis, which also is the longest possible statute of limitations on the claims pleaded, is four years, based on Kumar's cause of action for quiet title. This is consistent with the trial court's finding and is not disputed by the parties.

The limitations period for a quiet title cause of action depends on the underlying theory of relief. (Muktarian v. Barmby (1965) 63 Cal.2d 558, 560 [47 Cal. Rptr. 483, 407 P.2d 659].) Here, the four-year limitations period for cancellation of an instrument set forth in section 343 governs, as the gravamen of Kumar's complaint seeks to set aside and cancel the 2007 agreement and Ramsey's 2016 purchase. (See Costa Serena Owners Coalition v. Costa Serena Architectural Com. (2009) 175 Cal.App.4th 1175, 1195 [97 Cal. Rptr. 3d 170].)

However, “quiet title actions have special rules for when the limitations period begins to run.” (Salazar v. Thomas (2015) 236 Cal.App.4th 467, 477 [186 Cal. Rptr. 3d 689] (Salazar).) Specifically, “no statute of limitations runs against a plaintiff seeking to quiet title while he is in possession of the property. [Citations.] In many instances one in possession would not know of dormant adverse claims of persons not in possession. [Citation.] Moreover, even if … the party in possession knows of such a potential claimant, there is no reason to put him to the expense and inconvenience of litigation until such a claim is pressed against him.” (Muktarian v. Barmby, supra, 63 Cal.2d at pp. 560–561, fn. omitted.) Thus, “[a]n outstanding adverse claim, which amounts only to a cloud upon the title, is a continuing cause of action, and is not barred by lapse of time, until the hostile claim is asserted in some manner to jeopardize the superior title. So long as the adverse claim lies dormant and inactive the owner of the superior title may not be incommoded by it and has the privilege of allowing it to stand indefinitely. Each day's assertion of such adverse claim gives a renewed cause of action to quiet title until such action is brought.” (Secret Valley Land Co. v. Perry (1921) 187 Cal. 420, 426–427 [202 P. 449].)

Still, possession does not provide a plaintiff with an unlimited tolling period without qualification. Rather, the statute of limitations commences on a quiet title claim when the plaintiff is no longer in “undisturbed possession” of the land. (Mayer v. L&B Real Estate (2008) 43 Cal.4th 1231, 1238 [78 Cal. Rptr. 3d 62, 185 P.3d 43].) To determine whether a disturbance has arisen, courts consider the following questions: “(1) when were plaintiffs no longer owners ‘in exclusive and undisputed possession’ of the land [citation]; (2) when was defendants' adverse ‘claim … pressed against’ plaintiffs [citation]; or (3) when was defendants' hostile claim ‘asserted in some manner to jeopardize the superior title’ held by plaintiffs [citation].” (Salazar, supra, 236 Cal.App.4th at p. 478.)

(Kumar v. Ramsey (2021) 71 Cal.App.5th 1110, 1122-23 [bold emphasis added].)

Here, Plaintiff did not file this lawsuit until July 17, 2017, which is when the statute of limitations began to run on Cross-Complainants’ quiet title cause of action against Plaintiff/Cross-Defendant. The four-year statute of limitations would have expired on July 17, 2021—well after the Cross-Complaint was filed on April 10, 2020.

Further below, the Court will address Cross-Defendant’s statute of limitations argument regarding breach of contract and fraud, and failure to file a creditor’s claim in Probate Court, in connection with Cross-Defendant’s argument that these theories of obtaining Mario’s joint tenancy interest are time-barred.

Cross-Defendant also argues that the quiet title cause of action cannot be established as at least one element can be disproved or cannot be established.

Adverse Possession

There are special rules for adverse possession claimed by one joint tenant against another:

In an action to quiet title based on adverse possession the burden is upon the claimant to prove every necessary element: (1) Possession must be by actual occupation under such circumstances as to constitute reasonable notice to the owner. (2) It must be hostile to the owner's title. (3) The holder must claim the property as his own, under either color of title or claim of right. (4) Possession must be continuous and uninterrupted for five years. (5) The holder must pay all the taxes levied and assessed upon the property during the period. ( Laubisch v. Roberdo, 43 Cal.2d 702, 706 [1] [277 P.2d 9]; West v. Evans, 29 Cal.2d 414, 417 [1] [175 P.2d 219].)

As plaintiff and defendant were cotenants holding the land in joint ownership, the principle stated in Johns v. Scobie, 12 Cal.2d 618, 623 [5] [86 P.2d 820, 121 A.L.R. 1404], is applicable: "It is a fundamental rule that each tenant in common has a right to occupy the whole of the property. The possession of one is deemed the possession of all; each may assume that another in exclusive possession is possessing for all and not adversely to the others; and consequently one tenant in common does not, merely by exclusive possession, gain title by adverse possession against the others. Such possession will be presumed to be by permission and rightful, unless notice is brought home to the others that it has become hostile."

West v. Evans, supra, 29 Cal.2d 414, 418 [5], states the rule thus: "The exclusive occupancy by a cotenant is deemed permissive; it does not become adverse until the tenant out of possession has had either actual or notice that the possession of the cotenant is hostile to him."

In the circumstances developed by the record, the burden was upon plaintiff to prove an ouster. The trial court found that no such proof was made, and viewed the facts as favorable to defendant on the issue of joint ownership of the land. There is ample evidence in the record to support the finding.

(Dimmick v. Dimmick (1962) 58 Cal.2d 417, 421-23 [bold emphasis added].)

At all times from November 1953 to and beyond October 10, 1963, the two bedroom house on Lot 223 was occupied by tenant Raleigh Irwin Lescalet and his family; not one of his cotenants ever had possession of it. It was he who paid the taxes on it. Was his possession "adverse" to the interests of the Fletchers and their successors? To this crucial question the answer is, "It was not." In Dimmick v. Dimmick (1962) 58 Cal.2d 417, 422 [24 Cal.Rptr. 856, 858-859, 374 P.2d 824], we find these quotations from earlier Supreme Court cases: "As plaintiff and defendant were cotenants holding the land in joint ownership, the principle stated in Johns v. Scobie, 12 Cal.2d 618, 623 [5] [86 P.2d 820, 121 A.L.R. 1404], is applicable: 'It is a fundamental rule that each tenant in common has a right to occupy the whole of the property. The possession of one is deemed the possession of all; each may assume that another in exclusive possession is possessing for all and not adversely to the others; and consequently one tenant in common does not, merely by exclusive possession, gain title by adverse possession against the others. Such possession will be presumed to be by permission and rightful, unless notice is brought home to the others that it has become hostile.'

"West v. Evans, supra, 29 Cal.2d 414, 418 [5] [175 P.2d 219], states the rule thus: 'The exclusive occupancy by a cotenant is deemed permissive; it does not become adverse until the tenant out of possession has had either actual or constructive notice that the possession of the cotenant is hostile to him.'"

Also we find it stated in Weller v. Chavarria (1965) 233 Cal.App.2d 234, 242-243 [43 Cal.Rptr. 364, 370-371]: "Where, as here, a claim of ownership by adverse possession is asserted against a cotenant additional principles become operative. It is settled law that the exclusive occupancy of jointly owned premises by a cotenant is deemed permissive and does not become adverse until the tenant out of possession has had either actual or constructive notice that the possession of the cotenant is hostile to him. [Citing many cases, including Wilkerson v. Thomas (1953) 121 Cal.App.2d 479 [263 P.2d 678], and Faubel v. McFarland (1904) 144 Cal. 717, 720 [78 P. 261].]

"As the court said in Wilkerson, supra: 'A cotenant out of possession is entitled to assume that the permissive possession of his cotenant continues to be amicable until he is charged with some form of notice that such possession has become hostile. [Citations.] Before title may be acquired by adverse possession as between cotenants, the occupying tenant must bring home or impart notice to the tenant out of possession, by acts of ownership of the most open, notorious and unequivocal character, that he intends to oust the latter of his interest in the common property. [Citations.] Such evidence must be stronger than that which would be required to establish a title by adverse possession in a stranger. [Citations.]' (P. 488.) In short, one tenant in common cannot by mere exclusive possession acquire the title of his cotenant. ( Faubel 7 v. McFarland, supra.)"

7 There was no evidence of any hostile disposition on the part of tenant Raleigh Lescalet toward his out of possession cotenant that warranted the finding No. 13 that he had "acquired title thereto by adverse possession being sufficient against plaintiff and all others."

Nor is there any evidence that the presence of Gertrude Lescalet on the premises gave her title by adverse possession. Starting with the premise we find to be thoroughly established, that the possession by Raleigh Lescalet was authorized by his title as a cotenant, we entertain no doubt that such possession could be lawfully extended to his wife and her children. Their possession was not an independent possession; it was embraced in his.

The judgment depends upon the conclusion that cross-complainants acquired a title, as joint tenants, by adverse possession. Because we find this to be an unsupported conclusion -- whether of fact or law -- the judgment is reversed.

(Russell v. Lescale (1967), 248 Cal.App.2d 310, 313-14 [bold emphasis and underlining added].)

Cross-Defendant argues that Cross-Complainants cannot prove actual, open and notorious possession and continuous and uninterrupted possession for five years. However, the 2ACC alleges that Cross-Complainant Consuelo Saldana lived on the property as her primary residence since it was purchased on September 4, 1987. (2ACC, 11, 12.) Cross-Defendant does not present evidence that Cross-Complaints did not, in fact, openly live at the subject property for over five continuous years.

Cross-Defendant also argues that Cross-Complainants cannot prove the element of hostile possession to the Cross-Defendant’s title.

Cross-Defendant cites evidence that Cross-Complainants requested that decedent Mario Campana transfer the property to them in 2009. (UF No. 15; Iva Dominguez (“Iva”) Depo., Page 34:14-36:4; Miguel Dominguez (“Miguel”) Depo., Page 20:8-20. Cross-Defendant also argues that prior to Mario Campana’s death, Cross-Complainants never excluded him from the subject property, and he was never restricted access from the subject property. (UF No. 16; Iva Depo., page 44:10-21.)

However, in the opposing separate statement at Opp. Fact No. 16, Cross-Complainants cite the Declaration of Iva Dominguez, 5. In that Declaration, she states:

5. No one other than my mother and I, and, after I was married in 2008, my husband and my only child, all of whom still live in the condo, has lived in our home for over thirty-four years, since the purchase of the home in 1987. My father Mario Campana was allowed into the home only to visit me, his daughter and my mother, his mistress, and he had been notified on an ongoing basis, and always admitted that he knew, that any attempt by him to enter the property without our permission would have had the same consequences that would befall any other trespasser[8].

This evidence is sufficient to raise a triable issue of material fact as to whether Cross-Complainants effectuated an ouster of Mario Campana as a joint tenant by virtue of Cross-Complainants treating their possession as hostile to Mario’s joint tenancy interest by only allowing him to enter the property with the same rights as an invited guest, and only with their permission.

As plaintiff and defendant were cotenants holding the land in joint ownership, the principle stated in Johns v. Scobie, 12 Cal.2d 618, 623 [5] [86 P.2d 820, 121 A.L.R. 1404], is applicable: "It is a fundamental rule that each tenant in common has a right to occupy the whole of the property. The possession of one is deemed the possession of all; each may assume that another in exclusive possession is possessing for all and not adversely to the others; and consequently one tenant in common does not, merely by exclusive possession, gain title by adverse possession against the others. Such possession will be presumed to be by permission and rightful, unless notice is brought home to the others that it has become hostile."

West v. Evans, supra, 29 Cal.2d 414, 418 [5], states the rule thus: "The exclusive occupancy by a cotenant is deemed permissive; it does not become adverse until the tenant out of possession has had either actual or notice that the possession of the cotenant is hostile to him."

(Dimmick, supra, 58 Cal.2d at 423 [bold emphasis added].)

This argument is not persuasive.

Cross-Defendant argues that Cross-Complainants cannot prove claim of right or color of title.

Cross-Defendant cites the fact that Cross-Complainants and Cross-Defendant are co-tenants in common on the subject property. (Campana Decl., 3-5; Exhs. A-C.) However, the relevant inquiry is whether Cross-Complainants acquired an interest by way of adverse possession as against Mario Campana during the years before Cross-Defendant/Plaintiff William Campana received his interest from Mario. The separate statement does not sufficiently address this time period, so Cross-Defendant did not meet his burden on this issue.

It is a given that joint tenants are both listed on title, so merely pointing that out—as Cross-Defendant does by attached the Grant Deeds—is insufficient. Were that enough to prevent adverse possession against a joint tenant, then there would be no case law holding that a joint tenant may—albeit with difficulty—obtain the other joint tenant’s interest by adverse possession, where the tenant out of possession has notice that the tenant in possession’s claim has become hostile. (Russell v. Lescale (1967), 248 Cal.App.2d 310, 313-14 .)

The argument is not persuasive.

Cross-Defendant argues that Cross-Complainants cannot prove the element of payment of all taxes levied and assessed upon the property during the claimed period of occupation. Cross-Defendant cites evidence that Cross-Complainants have not paid all property taxes since the year 2015. (UF No. 22; Iva Depo., Pages 52:11-53:1; Miguel Depo., Page 25:2-25; Campana Decl. 7; Exh. E.)

However, the statute only requires that taxes be paid for the five-year period during which adverse possession operates to obtain title.[9] The statute does not appear to require that taxes be paid after the adverse possession has ripened into a claim of title. This argument is not persuasive.

No Clear and Convincing Evidence To Rebut Title Possession Based On Agreement (MSJ, Pages 13:28-14:7).

As an alternate theory to adverse possession (2ACC, 15 – 18)(addressed above), which is a claim against Cross-Defendant/Plaintiff directly, Cross-Complainants must eliminate the 50% joint tenancy interest previously held by Mario Campana which was conveyed to Cross-Defendant by way of the Quitclaim Deed recorded on August 1, 2013. In order to obtain a judgment to that effect, Cross-Defendants would have to prove that they are entitled to judgment conveying Cross-Defendant’s interest back to them under their pled theories of breach of contract (2ACC, 11 – 14), fraud (2ACC, 19 – 24), and constructive trust (2ACC, 25 – 28).

Decedent Mario Campana died on May 20, 2016. (UF No. 25; Campana Decl., 6; Exh. D.) Cross-Complainants did not file a claim until they filed the Cross-Complaint in this action, even though they knew Mario Campana had transferred his interest in the property to Cross-Defendant/Plaintiff William Campana when Consuelo Saldana transferred her 50% interest in the property on February 18, 2014. (UF No. 27; Exh. B.) Pursuant to Civ. Proc. Code 366.2, Cross-Defendants had one-year after Mario Campana died on May 20, 2016 to bring causes of action against his estate on the breach of contract, fraud and constructive trust claims. (Civ. Proc. Code 366.2[10].)

However, although it appears that these theories underlying the quiet title claims are time-barred, the Cross-Complainants’ adverse possession theory underlying the quiet title claim remains viable. As such, Cross-Defendant’s statute of limitations argument does not entitle him to summary judgment.

Retention of Beneficial/Equitable Interest

Given the foregoing which is sufficient to defeat summary judgment, the Court does not address Cross-Defendant’s argument that Cross-Complainants’ claim that when they transferred the property to Iva and Miguel, Consuelo intended to retain beneficial ownership, is a sham. In any event, Iva and Miguel Dominguez—who hold record title as joint tenants of the subject property—are named as Cross-Complainants and seek to quiet title in their name, which is sufficient to support a judgment.

Conclusion

In light of the foregoing, Cross-Defendant’s motion for summary judgment and motion for summary adjudication as to the Second Amended Cross-Complaint is DENIED.


[1]Except as provided in Section 872.730, partition as to concurrent interests in the property shall be as of right unless barred by a valid waiver.” (Civ. Proc. Code, 872.710(b).

[2] (Schwenn v. Kaye (1984) 155 Cal.App.3d 949, 951-52.)

[3] The Court does not have any record of a First Amended Complaint having been filed.

[4]To the extent that the court determines that the provisions of this title are a suitable remedy, such provisions may be applied in a proceeding for partnership accounting and dissolution, or in an action for partition of partnership property, where the rights of unsecured creditors of the partnership will not be prejudiced.” (Civ. Proc. Code 872.730.)

[5] Note: This appears to be a pleading standard, not necessarily a proof standard.

[6] It appears that Plaintiff’s wife did not acquire an interest in this gifted property, as property gifted as separate property during the marriage is not presumed to be community property. (See, e.g., In re Marriage of Ciprari (2019) 32 Cal.App.5th 83, 91-92.) Thus, the fact that she is not a party to this action appears to be of no moment.

[7] Note: Although 9 of the Campana Declaration does not support his statement, such matters as waiver would be an affirmative defense for Defendants to prove, so it does not defeat Plaintiff’s cause of action for partition.

[8] The Court notes that Cross-Defendant did not object to this evidence.

[9]

(b) In no case shall adverse possession be considered established under the provision of any section of this code, unless it shall be shown that the land has been occupied and claimed for the period of five years continuously, and the party or persons, their predecessors and grantors, have timely paid all state, county, or municipal taxes that have been levied and assessed upon the land for the period of five years during which the land has been occupied and claimed. Payment of those taxes by the party or persons, their predecessors and grantors shall be established by certified records of the county tax collector.

(Civ. Proc. Code 325(b)[bold emphasis added].)

[10]

(a) If a person against whom an action may be brought on a liability of the person, whether arising in contract, tort, or otherwise, and whether accrued or not accrued, dies before the expiration of the applicable limitations period, and the cause of action survives, an action may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply.

(Civ. Proc. Code 366.2(a) [bold emphasis and underlining added].)



Case Number: ****8542    Hearing Date: November 06, 2020    Dept: 76

This is an action to partition real property owned by a partnership and to dissolve the partnership.

Defendants filed a cross-complaint to quiet title, claiming Plaintiff does not have any actual ownership interest in the property.

Plaintiff/Cross-Defendant demurs to the First Amended Cross-Complaint and the First Amended Answer to the Second Amended Complaint filed by Defendants.

TENTATIVE RULING

Plaintiff/Cross-Defendant William Campana’s demurrer to the First Amended Cross-Complaint is SUSTAINED with leave to amend as to the first and only cause of action. Cross-Complainants are given 30 days leave to amend.

Plaintiff’s demurrer to the entire First Amended Answer to the Second Amended Complaint is OVERRULED.

ANALYSIS

Demurrer To First Amended Cross-Complaint

Plaintiff/Cross-Defendant demurs to the First Amended Cross-Complaint.

Request For Judicial Notice

Plaintiff/Cross-Defendant requests that the Court take judicial notice of the following: (1) Answer to Complaint; (2) Grant Deed recorded February 18, 2014; (3) Application for Guardian Ad Litem filed by Iva Dominguez on March 4, 2019 in this action; (4) Death Certificate of Mario Campana. Request Nos. 1 and 3 are GRANTED per Evid. Code ; 452(d)(court records). Request No. 2 is GRANTED. The Court may take judicial notice of recorded documents. (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 263, 274). Request No. 4 is GRANTED. “[R]ecords of a county are properly noticed under Evidence Code section 452, subdivision (c) [official acts of the state], because counties are legal subdivisions of the state.” (Cooke v. Superior Court (1989) 213 Cal.App.3d 401, 416, overruled on other grounds in County of San Diego v. State of California (1997) 15 Cal.4th 68, 106.)

Meet and Confer

The Declaration of Steve Lopez reflects that counsel for Cross-Complainant did not respond to meet and confer efforts. This satisfies CCP ; 430.41(a)(3)(B).

Discussion

The Cross-Complaint alleges a single cause of action to quiet title to the subject real property.

1. First and Only Cause of Action (Quiet Title.)

A. Re: Uncertainty.

A demurrer for uncertainty is properly sustained where the complaint is so vague or uncertain that the defendant cannot reasonably respond, i.e., when the defendant cannot determine what issues must be admitted or denied, or what counts are directed against the defendant. (Citations omitted.) Demurrers for uncertainty are disfavored and strictly construed “because ambiguities can reasonably be clarified under modern rules of discovery.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)

Cross-Defendant demurs on the ground that the meaning of the allegations is ambiguous. Cross-Defendant argues that the First Amended Cross-Complaint (“1ACC”) does not allege what interest in the subject property Consuelo Saldana is holding, as she previously alleged that she transferred all her interest to Iva and Miguel. Cross-Defendant argues that the 1ACC attempts to plead around this issue by stating that Conseulo signed a grant deed transferring half of her ownership interest in the property. However, Cross-Complainant argues, this completely contradicts the judicial admission in her Answer to the original Complaint where she states that she signed a grant deed transferring ownership of the property to Iva and Miguel Dominguez on February 18, 2014, in an attempt to pass her ownership interest in the property, including all beneficial interest. (See Answer to Original Complaint at ¶ 13.)

The Court deems the allegation at ¶ 19 of the 1ACC that Consuelo Saldana transferred “half of her ownership of the property to Iva and Miguel Dominguez on or about February 18, 2014” (italics added) to be poor draftsmanship. It can be (and for purposes of demurrer, must be) inferred in light of the surrounding allegations that she attempted to “pass on her ownership interest in the property, including all beneficial interest,” and “[t]he only reason that the deed referred to a half-interest, was that the recorded declined to transfer of the full interest because Mario Campana had never kept his word to sign over the other half interest; and the recorder would transfer only what was shown on the record.” (1ACC, ¶ 19.) It appears that Conseulo is alleging that she transferred her half legal/record interest in the property, and all of her beneficial interest, to the Dominquezes. The Court does not find a contradiction with prior pleadings such that the sham pleading doctrine applies. “[U]nder the sham pleading doctrine, the trial court may disregard amendments that omit harmful allegations in the original complaint or add allegations inconsistent with it. (Citations omitted.)” (Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1281 [italics added].)

Cross-Defendant also argues that ¶¶ 6 and 10 of the 1ACC contradict each other. First, it alleges that it was agreed between Cross-Complainant Consuelo Saldana and Mario Campana that the true owner and beneficial interest remain solely with Consuelo Saldana. Then, Cross-Complainants allege that upon completion of the mortgage, Mario Campana was to transfer his interest to Consuelo Saldana. This is not inconsistent, as Cross-Complainants allege that Mario Campana held a 50% legal (record) interest in the property, but no beneficial interest in the subject property.

A “beneficial” or “equitable owner” is defined as “[o]ne recognized in equity as the owner of something because use and title belong to that person, even though legal title may belong to someone else; esp., one for whom property is held in trust.” (Citations omitted.) In contrast, the “legal owner” is “[o]ne recognized by law as the owner of something; esp., one who holds legal title to property for the benefit of another.” (Citations omitted.)

(Pacific Gas & Electric Co. v. Hart High-Voltage Apparatus Repair & Testing Co., Inc. (2017) 18 Cal.App.5th 415, 427.)

Further, Cross-Defendant argues, ¶ 15 alleges that Mario Campana holds no beneficial interest in the subject property, but in the same paragraph, alleges that Mario Campana never transferred his interest to Cross-Complainants. Again, this is not inconsistent, as Cross-Complainants allege that Mario Campana held a 50% legal (record) interest in the property, but no beneficial interest in the subject property.

Cross-Defendant also argue that the basis to quiet title is not clear. The Court agrees that Cross-Complainants must clarify exactly which theories they rely upon to quiet title against Cross-Defendant. As noted, it appears there is a breach of contract theory asserted (1ACC, ¶ 10), and there is also a reference to adverse possession (¶ 13). To enable Cross-Defendant to reasonably respond, Cross-Complainants must separately plead such theories and plead the elements of each such cause of action. If the statute of frauds defense appears on the face of an amended complaint, Cross-Defendant may raise the issue as appropriate.

The demurrer on the ground of uncertainty is persuasive.

The demurrer to the first and only cause of action to quiet title is SUSTAINED with leave to amend on the ground of uncertainty.

B. Re: Defect or Misjoinder of Parties.

Cross-Defendant argues that there has been a defect of parties because the allegations of the Cross-Complaint do not indicate that Cross-Defendant committed a tort or breach against Cross-Complainants, and the only wrongdoer is Mario Campana (deceased). Thus, Cross-Defendant argues, Mario Campana’s successor in interest or his estate must be named as a Cross-Defendant.

This argument is not persuasive. Whether or not Cross-Complainants have stated facts sufficient to constitute a cause of action against Cross-Defendant is a different inquiry than if there has been a defect of parties. There is no dispute that Cross-Defendant William Campana—who is co-owner of record as to the subject property (1ACC, ¶17)—must be named as a defendant to the quiet title cause of action.

Nonetheless, whether or not Cross-Complainants’ failure to name Mario Campana’s estate or successor-in-interest goes to whether Cross-Complainants can obtain relief against the appropriate parties, which is their concern, not Cross-Defendant’s. (Anaya v. Superior Court (1984) 160 Cal.App.3d 228, 231 & n.1.)

n1 In answering this question, we cannot ignore Witkin's observation that "[although] the code seems to authorize the sustaining of a demurrer solely [for misjoinder of parties], the authorities indicate that the defendant is entitled to a favorable ruling only when he can show some prejudice suffered or some interests affected by the misjoinder. In practical effect this means that such a demurrer can be successfully used only by the persons improperly joined. A proper defendant is seldom injured by the joinder of unnecessary or improper parties plaintiff or defendant, and his demurrer ought to be overruled. [Citations.]" (3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, ; 823, p. 2432.)

(Anaya v. Superior Court (1984) 160 Cal.App.3d 228, 231 & n.1.)

This ground for demurrer is not persuasive.

C. Statute of Limitations.

The only cause of action asserted in the Cross-Complaint is one for quiet title. The statute of limitations would not begin to run against cross-complainants seeking to quiet title while they are in possession of the property. (Muktarian v. Barmby (1965) 63 Cal.2d 558, 560-56. Here, Cross-Complainants allegedly continue to live at the property as their primary residence. (1ACC ¶ 19.)

Since there is no statute of limitations governing quiet title actions as such, it is ordinarily necessary to refer to the underlying theory of relief to determine which statute applies. (See, e.g., Leeper v. Beltrami, 53 Cal.2d 195, 214 [1 Cal.Rptr. 12, 347 P.2d 12, 77 A.L.R.2d 803] [relief dependent on rescission of a contract, rule requiring prompt action applies]; Kenney v. Parks, 137 Cal. 527, 530 [70 P. 556] [nondelivery of deed, Code Civ. Proc., ; 318 applies; failure of trust condition, Code Civ. Proc., ; 343 applies]; Estate of Pieper, 224 Cal.App.2d 670, 689 [37 Cal.Rptr. 46] [nondelivery of deed, Code Civ. Proc., ; 343 applies]; Turner v. Milstein, 103 Cal.App.2d 651, 657-659 [230 P.2d 25] [extrinsic fraud, Code Civ. Proc., ; 338, subd. 4, applies].) In the present case, however, it is unnecessary to determine which statute would otherwise apply, for no statute of limitations runs against a plaintiff seeking to quiet title while he is in possession of the property. n2 ( Smith v. Matthews, 81 Cal. 120, 121 [22 P. 409]; Faria v. Bettencourt, 100 Cal.App. 49, 51-52 [279 P. 679]; 1 Witkin, Cal. Procedure (1954) Actions, ; 111, p. 613; 41 Cal.Jur.2d, Quieting Title, Etc., ; 25, p. 493; see Newport v. Hatton, 195 Cal. 132, 145 [231 P. 987]; Sears v. County of Calaveras, 45 Cal.2d 518, 521 [289 P.2d 425]; see also, Berniker v. Berniker, 30 Cal.2d 439, 448 [182 P.2d 557].) In many instances one in possession would not know of dormant adverse claims of persons not in possession. (See 1 Witkin, Cal. Procedure (1954) Actions, ; 111, p. 613.) Moreover, even if, as here, the party in possession knows of such a potential claimant, there is no  [*561]  reason to put him to the expense and inconvenience of litigation until such a claim is pressed against him. (See Berniker v. Berniker, supra, 30 Cal.2d at p. 448.) Of course, the party in possession runs the risk that the doctrine of laches will bar his action to quiet title if his delay in bringing action has prejudiced the claimant. ( Stewart v. Rice, 30 Cal.App.2d 335, 340 [86 P.2d 136]; see DaSilva v. Reeves, 215 Cal.App.2d 172, 175 [30 Cal.Rptr. 81]; see also Berniker v. Berniker, supra, 30 Cal.2d at p. 448 [7].) In this case, however, the trial court erred in holding that plaintiff's action was barred by the statute of limitations and thus did not reach the question of laches.

(Muktarian v. Barmby (1965) 63 Cal.2d 558, 560-561 [bold emphasis added].)

As such, the Court need not address Cross-Defendant’s statute of limitations argument asserted as to fraud, constructive/resulting trust or breach of contract. Also, Cross-Defendant’s request that the Court strike such allegations were required to be brought as a separate motion to strike.

In this regard, Cross-Defendant’s argument that the material time or date is omitted to avoid the statute of limitations issue is not persuasive. As noted above, there is no statute of limitations issue as to the only cause of action to quiet title.

D Re: Laches.

Cross-Defendant argues that this action is barred by laches.

The court declines to find that Cross-Complainants’ claim is barred by laches at this stage of litigation, as such a finding would be made by the Court after hearing the evidence. (Estate of Kampen (2011) 201 Cal.App.4th 971, 997.) Moreover, as laches is an equitable doctrine, the Court will be called upon to exercise its discretion in determining whether laches applies, i.e., whether there has been unreasonable delay plus acquiescence in the act or prejudice to defendant. (Farahani v. San Diego Community College Dist. (2009) 175 Cal.App.4th 1486, 1494.) Application of laches is not appropriate if prejudice to the defendant from the delay does not appear from the face of the complaint. (Sangiolo v. Sangiolo (1978) 87 Cal.App.3d 511, 514.)s

“ ‘The defense of laches requires unreasonable delay plus either acquiescence in the act about which plaintiff complains or prejudice to the defendant resulting from the delay.’ [Citation.]” (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 68 [99 Cal. Rptr. 2d 316, 5 P.3d 874].) Prejudice is not presumed from the simple fact of delay; it must be affirmatively shown. (Piscioneri v. City of Ontario (2002) 95 Cal.App.4th 1037, 1049 [116 Cal. Rptr. 2d 38].) In determining whether a defendant has sustained its burden of proving laches, the court may consider the extent to which the defendant is partially responsible for the delay. (Ibid.) “Laches is an equitable defense, the existence of which is a matter commended to the discretion of the trial court, ‘and in the absence of manifest injustice or lack of substantial support in the evidence, the trial court's determination will be sustained. [Citation.]’” (In re Marriage of Powers (1990) 218 Cal.App.3d 626, 643 [267 Cal. Rptr. 350].)

(Farahani v. San Diego Community College Dist. (2009) 175 Cal.App.4th 1486, 1494.)

“ ‘Generally speaking, the existence of laches is a question of fact to be determined by the trial court in light of all of the applicable circumstances … .’ ” (City of Coachella v. Riverside County Airport Land Use Com. (1989) 210 Cal.App.3d 1277, 1286 [258 Cal. Rptr. 795].) However, the issue may be addressed as one of law if the facts are undisputed. (San Bernardino Valley Audubon Society v. City of Moreno Valley (1996) 44 Cal.App.4th 593, 607 [51 Cal. Rptr. 2d 897], overruled on another issue in San Bernardino Valley Audubon Society v. Metropolitan Water Dist. (1999) 71 Cal.App.4th 382, 402–403 [83 Cal. Rptr. 2d 836].)

(Estate of Kampen (2011) 201 Cal.App.4th 971, 997.)

For laches to be a successful defense there must have been unreasonable delay and prejudice to the defendant caused by that delay (30 Cal.Jur.3d at p. 487). For a demurrer to be sustained both the delay and the injury must be disclosed in the complaint (3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, ; 813). Here Ruby claims that Leo retired on August 1, 1973; she does not tell us when she learned of her rights; she filed suit March 10, 1977; there is no suggestion whatever delay occurred would injure Leo. Under these circumstances it is improper to sustain a demurrer on the basis of laches. Rather, any prejudice should be raised in the answer and the issue determined at trial.

(Sangiolo v. Sangiolo (1978) 87 Cal.App.3d 511, 514.)

This ground for demurrer is not persuasive.

Demurrer To First Amended Answer

Plaintiff/Cross-Defendant demurs to First Amended Answer to the Second Amended Complaint filed by Defendants.

Meet and Confer

The Declaration of Steve Lopez reflects that counsel for Cross-Complainant did not respond to meet and confer efforts. This satisfies CCP ; 435.5(a)(3)(B).

Discussion

1. Entire Answer

Plaintiff demurs to the entire First Amended Answer (“1AA”) to the Second Amended Complaint on the ground that it is a sham pleading because it has omitted previous judicial admissions pled in the original Answer. Plaintiff points to ¶¶ 45, 46 and 47 of the 2AC as being admitted in the original Answer.

As to ¶ 45 of the 2AC, Plaintiff alleges that Mario Campana transferred his one-half ownership interest in the property to Plaintiff. At time of transfer, Mario Campana had a 50% ownership interest, thus Plaintiff currently has a 50% ownership interest. Defendant argues that, in Defendants’ 1AA, Defendants deny this paragraph in its entirety. Defendants do this even though in paragraph 11 of Defendants’ original Answer, Defendants state “Mario Campana ultimately transferred whatever interest he did have in the property to Plaintiff William Campana on July 31, 2013 in a quitclaim deed.” That same paragraph goes on to discuss how enraged Defendant Consuelo Saldana was by this transfer.

To the extent that the foregoing admissions in the original answer are inconsistent with the denial of ¶ 45 in the 1AA, such objection was to be brought by way of a timely motion to strike, as it is attacking a denial as a sham pleading. This does not constitute a proper basis for demurring to an answer under CCP ; 430.20, which provides:

A party against whom an answer has been filed may object, by demurrer as provided in Section 430.30, to the answer upon any one or more of the following grounds:

(a) The answer does not state facts sufficient to constitute a defense.

(b) The answer is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.

(c) Where the answer pleads a contract, it cannot be ascertained from the answer whether the contract is written or oral.

(Code Civ. Proc., ; 430.20).)

As to ¶ 46 of the 2AC, Plaintiff alleges that Defendant Consuelo became aware of the interest transfer from Mario Campana between July 31, 2013 and February 18, 2014. Defendant argues that, in Defendants’ 1AA, Defendant’s deny knowledge of this matter, even though, Defendants previously stated in their Original Answer, paragraph 11, that knowledge of this transfer enraged Consuelo Saldana.

Again, to the extent that the foregoing admissions in the original answer are inconsistent with the denial of ¶ 46 in the 1AA, such objection was to be brought by way of a timely motion to strike, as it is attacking a denial as a sham pleading. This does not constitute a proper basis for demurring to an answer under CCP ; 430.20.

As to ¶ 47 of the 2AC, Plaintiff alleges that Defendant Consuelo Saldana transferred her one-half interest in the Property, including all beneficial interest, to Miguel and Iva on or about February 18, 2014. In Defendant’s 1AC, with exception to Exhibit D, Defendants deny all allegations of paragraph 47. Defendants deny this notwithstanding the fact that on paragraph 13 of their original Answer, Defendants state, “In an attempt to pass on her ownership interest in the property, including all beneficial interest, Consuelo Saldana signed a grant deed transferring ownership of the property to Iva and Miguel Dominguez on or about February 18, 2014...”

Again, to the extent that the foregoing admissions in the original answer are inconsistent with the denial of ¶ 47 in the 1AA, such objection was to be brought by way of a timely motion to strike, as it is attacking a denial as a sham pleading. This does not constitute a proper basis for demurring to an answer under CCP ; 430.20.

Accordingly, Plaintiff’s demurrer to the entire 1AA to the 2AC is OVERRULED.



Case Number: ****8542    Hearing Date: October 28, 2020    Dept: 76

This is an action to partition real property owned by a partnership and to dissolve the partnership.

Defendants filed a cross-complaint to quiet title, claiming Plaintiff does not have any actual ownership interest in the property.

Plaintiff/Cross-Defendant demurs to the First Amended Cross-Complaint and the First Amended Answer to the Second Amended Complaint filed by Defendants.

TENTATIVE RULING

Plaintiff/Cross-Defendant William Campana’s demurrer to the First Amended Cross-Complaint is SUSTAINED with leave to amend as to the first and only cause of action. Cross-Complainants are given 30 days leave to amend.

Plaintiff’s demurrer to the entire First Amended Answer to the Second Amended Complaint is OVERRULED.

ANALYSIS

Demurrer To First Amended Cross-Complaint

Plaintiff/Cross-Defendant demurs to the First Amended Cross-Complaint.

Request For Judicial Notice

Plaintiff/Cross-Defendant requests that the Court take judicial notice of the following: (1) Answer to Complaint; (2) Grant Deed recorded February 18, 2014; (3) Application for Guardian Ad Litem filed by Iva Dominguez on March 4, 2019 in this action; (4) Death Certificate of Mario Campana. Request Nos. 1 and 3 are GRANTED per Evid. Code ; 452(d)(court records). Request No. 2 is GRANTED. The Court may take judicial notice of recorded documents. (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 263, 274). Request No. 4 is GRANTED. “[R]ecords of a county are properly noticed under Evidence Code section 452, subdivision (c) [official acts of the state], because counties are legal subdivisions of the state.” (Cooke v. Superior Court (1989) 213 Cal.App.3d 401, 416, overruled on other grounds in County of San Diego v. State of California (1997) 15 Cal.4th 68, 106.)

Meet and Confer

The Declaration of Steve Lopez reflects that counsel for Cross-Complainant did not respond to meet and confer efforts. This satisfies CCP ; 430.41(a)(3)(B).

Discussion

The Cross-Complaint alleges a single cause of action to quiet title to the subject real property.

1. First and Only Cause of Action (Quiet Title.)

A. Re: Uncertainty.

A demurrer for uncertainty is properly sustained where the complaint is so vague or uncertain that the defendant cannot reasonably respond, i.e., when the defendant cannot determine what issues must be admitted or denied, or what counts are directed against the defendant. (Citations omitted.) Demurrers for uncertainty are disfavored and strictly construed “because ambiguities can reasonably be clarified under modern rules of discovery.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)

Cross-Defendant demurs on the ground that the meaning of the allegations is ambiguous. Cross-Defendant argues that the First Amended Cross-Complaint (“1ACC”) does not allege what interest in the subject property Consuelo Saldana is holding, as she previously alleged that she transferred all her interest to Iva and Miguel. Cross-Defendant argues that the 1ACC attempts to plead around this issue by stating that Conseulo signed a grant deed transferring half of her ownership interest in the property. According to Cross-Complainant, this statement completely contradicts the judicial admission in her Answer to the original Complaint where she states that she signed a grant deed transferring ownership of the property to Iva and Miguel Dominguez on February 18, 2014, in an attempt to pass her ownership interest in the property, including all beneficial interest. (See Answer to Original Complaint at ¶ 13.)

The Court deems the allegation at ¶ 19 of the 1ACC—that Consuelo Saldana transferred “half of her ownership of the property to Iva and Miguel Dominguez on or about February 18, 2014” (italics added)—to be poorly drafted. The meaning of this allegation appears to be clarified by the surrounding allegations that she attempted to “pass on her ownership interest in the property, including all beneficial interest,” and “[t]he only reason that the deed referred to a half-interest, was that the recorded declined to transfer of the full interest because Mario Campana had never kept his word to sign over the other half interest; and the recorder would transfer only what was shown on the record.” (1ACC, ¶ 19.) It appears that Conseulo is alleging that she transferred her half legal/record interest in the property, and all of her beneficial interest, to the Dominguezes. The Court does not find a contradiction with prior pleadings such that the sham pleading doctrine applies. “[U]nder the sham pleading doctrine, the trial court may disregard amendments that omit harmful allegations in the original complaint or add allegations inconsistent with it. (Citations omitted.)” (Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1281 [italics added].)

Cross-Defendant also argues that ¶¶ 6 and 10 of the 1ACC contradict each other. First, it alleges that it was agreed between Cross-Complainant Consuelo Saldana and Mario Campana that the true owner and beneficial interest remain solely with Consuelo Saldana. Then, Cross-Complainants allege that upon completion of the mortgage, Mario Campana was to transfer his interest to Consuelo Saldana. This is not inconsistent, as Cross-Complainants allege that Mario Campana held a 50% legal (record) interest in the property, but no beneficial interest in the subject property.

A “beneficial” or “equitable owner” is defined as “[o]ne recognized in equity as the owner of something because use and title belong to that person, even though legal title may belong to someone else; esp., one for whom property is held in trust.” (Citations omitted.) In contrast, the “legal owner” is “[o]ne recognized by law as the owner of something; esp., one who holds legal title to property for the benefit of another.” (Citations omitted.)

(Pacific Gas & Electric Co. v. Hart High-Voltage Apparatus Repair & Testing Co., Inc. (2017) 18 Cal.App.5th 415, 427.)

Further, Cross-Defendant argues, ¶ 15 alleges that Mario Campana holds no beneficial interest in the subject property, but in the same paragraph, alleges that Mario Campana never transferred his interest to Cross-Complainants. Again, this is not inconsistent, as Cross-Complainants allege that Mario Campana held a 50% legal (record) interest in the property, but no beneficial interest in the subject property.

Cross-Defendant also argues that the basis to quiet title is not clear. The Court agrees that Cross-Complainants must clarify exactly which theories they rely upon to quiet title against Cross-Defendant. As noted, it appears there is a breach of contract theory asserted (1ACC, ¶ 10), and there is also a reference to adverse possession (¶ 13). To enable Cross-Defendant to reasonably respond, Cross-Complainants must separately plead such theories and plead the elements of each such cause of action. If the statute of frauds defense appears on the face of an amended complaint, Cross-Defendant may raise the issue as appropriate.

The demurrer on the ground of uncertainty is persuasive.

The demurrer to the first and only cause of action to quiet title is SUSTAINED with leave to amend on the ground of uncertainty.

B. Re: Defect or Misjoinder of Parties.

Cross-Defendant argues that there has been a defect of parties because the allegations of the Cross-Complaint do not indicate that Cross-Defendant committed a tort or breach against Cross-Complainants, and the only wrongdoer is Mario Campana (deceased). Thus, Cross-Defendant argues, Mario Campana’s successor in interest or his estate must be named as a Cross-Defendant.

This argument is not persuasive. Whether or not Cross-Complainants have stated facts sufficient to constitute a cause of action against Cross-Defendant is a different inquiry than if there has been a defect of parties. There is no dispute that Cross-Defendant William Campana—who is co-owner of record as to the subject property (1ACC, ¶17)—must be named as a defendant to the quiet title cause of action.

Nonetheless, whether or not Cross-Complainants’ failure to name Mario Campana’s estate or successor-in-interest goes to whether Cross-Complainants can obtain relief against the appropriate parties, which is their concern, not Cross-Defendant’s. (Anaya v. Superior Court (1984) 160 Cal.App.3d 228, 231 & n.1.)

n1 In answering this question, we cannot ignore Witkin's observation that "[although] the code seems to authorize the sustaining of a demurrer solely [for misjoinder of parties], the authorities indicate that the defendant is entitled to a favorable ruling only when he can show some prejudice suffered or some interests affected by the misjoinder. In practical effect this means that such a demurrer can be successfully used only by the persons improperly joined. A proper defendant is seldom injured by the joinder of unnecessary or improper parties plaintiff or defendant, and his demurrer ought to be overruled. [Citations.]" (3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, ; 823, p. 2432.)

(Anaya v. Superior Court (1984) 160 Cal.App.3d 228, 231 & n.1.)

This ground for demurrer is not persuasive.

C. Statute of Limitations.

The only cause of action asserted in the Cross-Complaint is one for quiet title. The statute of limitations would not begin to run against cross-complainants seeking to quiet title while they are in possession of the property. (Muktarian v. Barmby (1965) 63 Cal.2d 558, 560-56. Here, Cross-Complainants allegedly continue to live at the property as their primary residence. (1ACC ¶ 19.)

Since there is no statute of limitations governing quiet title actions as such, it is ordinarily necessary to refer to the underlying theory of relief to determine which statute applies. (See, e.g., Leeper v. Beltrami, 53 Cal.2d 195, 214 [1 Cal.Rptr. 12, 347 P.2d 12, 77 A.L.R.2d 803] [relief dependent on rescission of a contract, rule requiring prompt action applies]; Kenney v. Parks, 137 Cal. 527, 530 [70 P. 556] [nondelivery of deed, Code Civ. Proc., ; 318 applies; failure of trust condition, Code Civ. Proc., ; 343 applies]; Estate of Pieper, 224 Cal.App.2d 670, 689 [37 Cal.Rptr. 46] [nondelivery of deed, Code Civ. Proc., ; 343 applies]; Turner v. Milstein, 103 Cal.App.2d 651, 657-659 [230 P.2d 25] [extrinsic fraud, Code Civ. Proc., ; 338, subd. 4, applies].) In the present case, however, it is unnecessary to determine which statute would otherwise apply, for no statute of limitations runs against a plaintiff seeking to quiet title while he is in possession of the property. n2 ( Smith v. Matthews, 81 Cal. 120, 121 [22 P. 409]; Faria v. Bettencourt, 100 Cal.App. 49, 51-52 [279 P. 679]; 1 Witkin, Cal. Procedure (1954) Actions, ; 111, p. 613; 41 Cal.Jur.2d, Quieting Title, Etc., ; 25, p. 493; see Newport v. Hatton, 195 Cal. 132, 145 [231 P. 987]; Sears v. County of Calaveras, 45 Cal.2d 518, 521 [289 P.2d 425]; see also, Berniker v. Berniker, 30 Cal.2d 439, 448 [182 P.2d 557].) In many instances one in possession would not know of dormant adverse claims of persons not in possession. (See 1 Witkin, Cal. Procedure (1954) Actions, ; 111, p. 613.) Moreover, even if, as here, the party in possession knows of such a potential claimant, there is no  [*561]  reason to put him to the expense and inconvenience of litigation until such a claim is pressed against him. (See Berniker v. Berniker, supra, 30 Cal.2d at p. 448.) Of course, the party in possession runs the risk that the doctrine of laches will bar his action to quiet title if his delay in bringing action has prejudiced the claimant. ( Stewart v. Rice, 30 Cal.App.2d 335, 340 [86 P.2d 136]; see DaSilva v. Reeves, 215 Cal.App.2d 172, 175 [30 Cal.Rptr. 81]; see also Berniker v. Berniker, supra, 30 Cal.2d at p. 448 [7].) In this case, however, the trial court erred in holding that plaintiff's action was barred by the statute of limitations and thus did not reach the question of laches.

(Muktarian v. Barmby (1965) 63 Cal.2d 558, 560-561 [bold emphasis added].)

As such, the Court need not address Cross-Defendant’s statute of limitations argument asserted as to fraud, constructive/resulting trust or breach of contract. Also, Cross-Defendant’s request that the Court strike such allegations were required to be brought as a separate motion to strike.

In this regard, Cross-Defendant’s argument that the material time or date is omitted to avoid the statute of limitations issue is not persuasive. As noted above, there is no statute of limitations issue as to the only cause of action to quiet title.

D Re: Laches.

Cross-Defendant argues that this action is barred by laches.

The court declines to find that Cross-Complainants’ claim is barred by laches at this stage of litigation, as such a finding would be made by the Court after hearing the evidence. (Estate of Kampen (2011) 201 Cal.App.4th 971, 997.) Moreover, as laches is an equitable doctrine, the Court will be called upon to exercise its discretion in determining whether laches applies, i.e., whether there has been unreasonable delay plus acquiescence in the act or prejudice to defendant. (Farahani v. San Diego Community College Dist. (2009) 175 Cal.App.4th 1486, 1494.) Application of laches is not appropriate if prejudice to the defendant from the delay does not appear from the face of the complaint. (Sangiolo v. Sangiolo (1978) 87 Cal.App.3d 511, 514.)s

“ ‘The defense of laches requires unreasonable delay plus either acquiescence in the act about which plaintiff complains or prejudice to the defendant resulting from the delay.’ [Citation.]” (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 68 [99 Cal. Rptr. 2d 316, 5 P.3d 874].) Prejudice is not presumed from the simple fact of delay; it must be affirmatively shown. (Piscioneri v. City of Ontario (2002) 95 Cal.App.4th 1037, 1049 [116 Cal. Rptr. 2d 38].) In determining whether a defendant has sustained its burden of proving laches, the court may consider the extent to which the defendant is partially responsible for the delay. (Ibid.) “Laches is an equitable defense, the existence of which is a matter commended to the discretion of the trial court, ‘and in the absence of manifest injustice or lack of substantial support in the evidence, the trial court's determination will be sustained. [Citation.]’” (In re Marriage of Powers (1990) 218 Cal.App.3d 626, 643 [267 Cal. Rptr. 350].)

(Farahani v. San Diego Community College Dist. (2009) 175 Cal.App.4th 1486, 1494.)

“ ‘Generally speaking, the existence of laches is a question of fact to be determined by the trial court in light of all of the applicable circumstances … .’ ” (City of Coachella v. Riverside County Airport Land Use Com. (1989) 210 Cal.App.3d 1277, 1286 [258 Cal. Rptr. 795].) However, the issue may be addressed as one of law if the facts are undisputed. (San Bernardino Valley Audubon Society v. City of Moreno Valley (1996) 44 Cal.App.4th 593, 607 [51 Cal. Rptr. 2d 897], overruled on another issue in San Bernardino Valley Audubon Society v. Metropolitan Water Dist. (1999) 71 Cal.App.4th 382, 402–403 [83 Cal. Rptr. 2d 836].)

(Estate of Kampen (2011) 201 Cal.App.4th 971, 997.)

For laches to be a successful defense there must have been unreasonable delay and prejudice to the defendant caused by that delay (30 Cal.Jur.3d at p. 487). For a demurrer to be sustained both the delay and the injury must be disclosed in the complaint (3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, ; 813). Here Ruby claims that Leo retired on August 1, 1973; she does not tell us when she learned of her rights; she filed suit March 10, 1977; there is no suggestion whatever delay occurred would injure Leo. Under these circumstances it is improper to sustain a demurrer on the basis of laches. Rather, any prejudice should be raised in the answer and the issue determined at trial.

(Sangiolo v. Sangiolo (1978) 87 Cal.App.3d 511, 514.)

This ground for demurrer is not persuasive.

Demurrer To First Amended Answer

Plaintiff/Cross-Defendant demurs to First Amended Answer to the Second Amended Complaint filed by Defendants.

Meet and Confer

The Declaration of Steve Lopez reflects that counsel for Cross-Complainant did not respond to meet and confer efforts. This satisfies CCP ; 435.5(a)(3)(B).

Discussion

1. Entire Answer

Plaintiff demurs to the entire First Amended Answer (“1AA”) to the Second Amended Complaint on the ground that it is a sham pleading because it has omitted previous judicial admissions pled in the original Answer. Plaintiff points to ¶¶ 45, 46 and 47 of the 2AC as being admitted in the original Answer.

As to ¶ 45 of the 2AC, Plaintiff alleges that Mario Campana transferred his one-half ownership interest in the property to Plaintiff. At time of transfer, Mario Campana had a 50% ownership interest, thus Plaintiff currently has a 50% ownership interest. Defendant argues that, in Defendants’ 1AA, Defendants’ deny this paragraph in its entirety. Defendants do this even though in paragraph 11 of Defendants’ original Answer, Defendants state “Mario Campana ultimately transferred whatever interest he did have in the property to Plaintiff William Campana on July 31, 2013 in a quitclaim deed.” That same paragraph goes on to discuss how enraged Defendant Consuelo Saldana was by this transfer.

To the extent that the foregoing admissions in the original answer are inconsistent with the denial of ¶ 45 in the 1AA, such objection was to be brought by way of a timely motion to strike, as it is attacking a denial as a sham pleading. This does not constitute a proper basis for demurring to an answer under CCP ; 430.20, which provides:

A party against whom an answer has been filed may object, by demurrer as provided in Section 430.30, to the answer upon any one or more of the following grounds:

(a) The answer does not state facts sufficient to constitute a defense.

(b) The answer is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.

(c) Where the answer pleads a contract, it cannot be ascertained from the answer whether the contract is written or oral.

(Code Civ. Proc., ; 430.20).)

As to ¶ 46 of the 2AC, Plaintiff alleges that Defendant Consuelo became aware of the interest transfer from Mario Campana between July 31, 2013 and February 18, 2014. Defendant argues that, in Defendants’ 1AA, Defendant’s deny knowledge of this matter, even though, Defendants previously stated in their Original Answer, paragraph 11, that knowledge of this transfer enraged Consuelo Saldana.

Again, to the extent that the foregoing admissions in the original answer are inconsistent with the denial of ¶ 46 in the 1AA, such objection was to be brought by way of a timely motion to strike, as it is attacking a denial as a sham pleading. This does not constitute a proper basis for demurring to an answer under CCP ; 430.20.

As to ¶ 47 of the 2AC, Plaintiff alleges that Defendant Consuelo Saldana transferred her one-half interest in the Property, including all beneficial interest, to Miguel and Iva on or about February 18, 2014. In Defendant’s 1AC, with exception to Exhibit D, Defendants deny all allegations of paragraph 47. Defendants deny this notwithstanding the fact that on paragraph 13 of their original Answer, Defendants state, “In an attempt to pass on her ownership interest in the property, including all beneficial interest, Consuelo Saldana signed a grant deed transferring ownership of the property to Iva and Miguel Dominguez on or about February 18, 2014...”

Again, to the extent that the foregoing admissions in the original answer are inconsistent with the denial of ¶ 47 in the 1AA, such objection was to be brought by way of a timely motion to strike, as it is attacking a denial as a sham pleading. This does not constitute a proper basis for demurring to an answer under CCP ; 430.20.

Accordingly, Plaintiff’s demurrer to the entire 1AA to the 2AC is OVERRULED.



Case Number: ****8542    Hearing Date: August 12, 2020    Dept: 76

This is an action to partition real property owned by a partnership and to dissolve the partnership.

Defendants filed a cross-complaint to quiet title, claiming Plaintiff does not have any actual ownership interest in the property.

Plaintiff/Cross-Defendant demurs to Defendants’ Cross-Complaint and Answer to the Second Amended Complaint.

TENTATIVE RULING

The First Amended Cross-Complaint filed by Cross-Complainants on August 4, 2020 and the First Amended Answer filed by Defendants on August 4, 2020 are ordered STRICKEN as untimely.

Plaintiff/Cross-Defendant William Campana’s demurrer to the Cross-Complaint is SUSTAINED with leave to amend as to the first and only cause of action. Cross-Complainants are given 30 days leave to amend.

Plaintiff William Campana’s demurrer to the Answer to the Second Amended Complaint is OVERRULED as to the issue of sham amendment, and SUSTAINED without leave to amend as to the first affirmative defense and with leave to amend as to the second through fifteenth affirmative defenses. Defendants are given 30 days leave to amend.

ANALYSIS

Demurrer To Cross-Complaint

Plaintiff/Cross-Defendant demurs to the Cross-Complaint.

Request For Judicial Notice

Plaintiff/Cross-Defendant requests that the Court take judicial notice of the following: (1) Answer to Complaint; (2) Grant Deed recorded February 18, 2014; (3) Application for Guardian Ad Litem filed by Iva Dominguez on March 4, 2019 in this action; (4) Death Certificate of Mario Campana. Request Nos. 1 and 3 are GRANTED per Evid. Code ; 452(d)(court records). Request No. 2 is GRANTED. The Court may take judicial notice of recorded documents. (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 263, 274). Request No. 4 is GRANTED. “[R]ecords of a county are properly noticed under Evidence Code section 452, subdivision (c) [official acts of the state], because counties are legal subdivisions of the state.” (Cooke v. Superior Court (1989) 213 Cal.App.3d 401, 416, overruled on other grounds in County of San Diego v. State of California (1997) 15 Cal.4th 68, 106.)

Meet and Confer

The Declaration of Steve Lopez reflects that counsel for Cross-Complainant did not respond to meet and confer efforts. This satisfies CCP ; 430.41(a)(3)(B).

Amended Cross-Complaint

After a demurrer to, or motion to strike, a pleading is filed, an amended pleading may be filed no later than the date an opposition to the demurrer or motion to strike is due, unless the parties stipulate otherwise. (Code Civ. Proc., ; 472(a)). An opposition to a demurrer or motion to strike is due nine court days prior to the hearing date. (Code Civ. Proc., ; 1005(b).)

The opposition to the demurrer was due July 30, 2020. The Amended Cross-Complaint filed on August 4, 2020 was not filed pursuant to a court order or stipulation of the parties. Accordingly, it was untimely filed and will be STRICKEN pursuant to CCP ; 436(b)(pleading not filed in conformity with the laws of this state).

An amended pleading must address the issues identified below by the Court.

Discussion

The Cross-Complaint alleges a single cause of action to quiet title to the subject real property.

1. First and Only Cause of Action (Quiet Title.)

A. Re: Uncertainty.

Cross-Defendant demurs on the ground that the meaning of the allegations are ambiguous.

A demurrer for uncertainty is properly sustained where the complaint is so vague or uncertain that the defendant cannot reasonably respond, i.e., when the defendant cannot determine what issues must be admitted or denied, or what counts are directed against the defendant. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶ 7:85.) Demurrers for uncertainty are disfavored and strictly construed “because ambiguities can reasonably be clarified under modern rules of discovery.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)

Here, it appears that Cross-Complainants are alleging that Cross-Defendant William Campana’s father, Mario Campana, conveyed the 50% interest in the real property, as evidenced by his name on title to the property as joint owner (Cross-Complaint, ¶ 10), to Cross-Defendant instead of to Cross-Complainant Consuelo Saldana, as had allegedly been agreed during Mario Campana’s lifetime. Whether or not this states a cause of action is a different inquiry than whether the cause of action fails for uncertainty.

Nonetheless, the Court agrees that Cross-Complainants must clarify exactly which theories they rely upon to quiet title against Cross-Defendant. As noted, it appears there is a breach of contract theory asserted (¶ 10), and there is also a reference to adverse possession (¶ 13). To enable Cross-Defendant to reasonably respond, Cross-Complainants must separately plead such theories and plead the elements of each such cause of action. If the statute of frauds defense appears on the face of an amended complaint, Cross-Defendant may raise the issue as appropriate.

The demurrer on the ground of uncertainty is persuasive.

The demurrer to the first and only cause of action to quiet title is SUSTAINED with leave to amend.

B. Re: Defect of Parties.

Cross-Defendant argues that there has been a defect of parties because the allegations of the Cross-Complaint do not indicate that Cross-Defendant committed a tort or breach against Cross-Complainants, and the only wrongdoer is Mario Campana (deceased). Thus, Cross-Defendant argues, Mario Campana’s successor in interest or his estate must be named as a Cross-Defendant.

This argument is not persuasive. Whether or not Cross-Complainants have stated facts sufficient to constitute a cause of action against Cross-Defendant is a different inquiry than if there has been a defect of parties. There is no dispute that Cross-Defendant William Campana—who is co-owner of record as to the subject property (¶17)—must be named as a defendant to the quiet title cause of action.

Nonetheless, whether or not Cross-Complainants’ failure to name Mario Campana’s estate or successor-in-interest goes to whether Cross-Complainants can obtain relief against the appropriate parties, which is their concern, not Cross-Defendant’s. (Anaya v. Superior Court (1984) 160 Cal.App.3d 228, 231 & n.1.)

n1 In answering this question, we cannot ignore Witkin's observation that "[although] the code seems to authorize the sustaining of a demurrer solely [for misjoinder of parties], the authorities indicate that the defendant is entitled to a favorable ruling only when he can show some prejudice suffered or some interests affected by the misjoinder. In practical effect this means that such a demurrer can be successfully used only by the persons improperly joined. A proper defendant is seldom injured by the joinder of unnecessary or improper parties plaintiff or defendant, and his demurrer ought to be overruled. [Citations.]" (3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, ; 823, p. 2432.)

(Anaya v. Superior Court (1984) 160 Cal.App.3d 228, 231 & n.1.)

C. Statute of Limitations.

The only cause of action asserted in the Cross-Complaint is one for quiet title. The statute of limitations would not begin to run against cross-complainants seeking to quiet title while they are in possession of the property. (Muktarian v. Barmby (1965) 63 Cal.2d 558, 560-56. Here, Cross-Complainants allegedly continue to live at the property as their primary residence. (Cross-Complaint, ¶ 20.)

Since there is no statute of limitations governing quiet title actions as such, it is ordinarily necessary to refer to the underlying theory of relief to determine which statute applies. (See, e.g., Leeper v. Beltrami, 53 Cal.2d 195, 214 [1 Cal.Rptr. 12, 347 P.2d 12, 77 A.L.R.2d 803] [relief dependent on rescission of a contract, rule requiring prompt action applies]; Kenney v. Parks, 137 Cal. 527, 530 [70 P. 556] [nondelivery of deed, Code Civ. Proc., ; 318 applies; failure of trust condition, Code Civ. Proc., ; 343 applies]; Estate of Pieper, 224 Cal.App.2d 670, 689 [37 Cal.Rptr. 46] [nondelivery of deed, Code Civ. Proc., ; 343 applies]; Turner v. Milstein, 103 Cal.App.2d 651, 657-659 [230 P.2d 25] [extrinsic fraud, Code Civ. Proc., ; 338, subd. 4, applies].) In the present case, however, it is unnecessary to determine which statute would otherwise apply, for no statute of limitations runs against a plaintiff seeking to quiet title while he is in possession of the property. n2 ( Smith v. Matthews, 81 Cal. 120, 121 [22 P. 409]; Faria v. Bettencourt, 100 Cal.App. 49, 51-52 [279 P. 679]; 1 Witkin, Cal. Procedure (1954) Actions, ; 111, p. 613; 41 Cal.Jur.2d, Quieting Title, Etc., ; 25, p. 493; see Newport v. Hatton, 195 Cal. 132, 145 [231 P. 987]; Sears v. County of Calaveras, 45 Cal.2d 518, 521 [289 P.2d 425]; see also, Berniker v. Berniker, 30 Cal.2d 439, 448 [182 P.2d 557].) In many instances one in possession would not know of dormant adverse claims of persons not in possession. (See 1 Witkin, Cal. Procedure (1954) Actions, ; 111, p. 613.) Moreover, even if, as here, the party in possession knows of such a potential claimant, there is no  [*561]  reason to put him to the expense and inconvenience of litigation until such a claim is pressed against him. (See Berniker v. Berniker, supra, 30 Cal.2d at p. 448.) Of course, the party in possession runs the risk that the doctrine of laches will bar his action to quiet title if his delay in bringing action has prejudiced the claimant. ( Stewart v. Rice, 30 Cal.App.2d 335, 340 [86 P.2d 136]; see DaSilva v. Reeves, 215 Cal.App.2d 172, 175 [30 Cal.Rptr. 81]; see also Berniker v. Berniker, supra, 30 Cal.2d at p. 448 [7].) In this case, however, the trial court erred in holding that plaintiff's action was barred by the statute of limitations and thus did not reach the question of laches.

(Muktarian v. Barmby (1965) 63 Cal.2d 558, 560-561 [bold emphasis added].)

As such, the Court need not address Cross-Defendant’s statute of limitations argument asserted as to fraud, constructive/resulting trust or breach of contract. Also, Cross-Defendant’s request that the Court strike such allegations were required to be brought as a separate motion to strike.

In this regard, Cross-Defendant’s argument that the material time or date is omitted to avoid the statute of limitations issue. As noted above, there is no statute of limitations issue as to the only cause of action to quiet title.

D Re: Laches.

Cross-Defendant argues that this action is barred by laches.

The court declines to find that Cross-Complainants’ claim is barred by laches at this stage of litigation, as such a finding would be made by the Court after hearing the evidence. (Estate of Kampen (2011) 201 Cal.App.4th 971, 997.) Moreover, as laches is an equitable doctrine, the Court will be called upon to exercise its discretion in determining whether laches applies, i.e., whether there has been unreasonable delay plus acquiescence in the act or prejudice to defendant. (Farahani v. San Diego Community College Dist. (2009) 175 Cal.App.4th 1486, 1494.) Application of laches is not appropriate if prejudice to the defendant from the delay does not appear from the face of the complaint. (Sangiolo v. Sangiolo (1978) 87 Cal.App.3d 511, 514.)s

“ ‘The defense of laches requires unreasonable delay plus either acquiescence in the act about which plaintiff complains or prejudice to the defendant resulting from the delay.’ [Citation.]” (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 68 [99 Cal. Rptr. 2d 316, 5 P.3d 874].) Prejudice is not presumed from the simple fact of delay; it must be affirmatively shown. (Piscioneri v. City of Ontario (2002) 95 Cal.App.4th 1037, 1049 [116 Cal. Rptr. 2d 38].) In determining whether a defendant has sustained its burden of proving laches, the court may consider the extent to which the defendant is partially responsible for the delay. (Ibid.) “Laches is an equitable defense, the existence of which is a matter commended to the discretion of the trial court, ‘and in the absence of manifest injustice or lack of substantial support in the evidence, the trial court's determination will be sustained. [Citation.]’” (In re Marriage of Powers (1990) 218 Cal.App.3d 626, 643 [267 Cal. Rptr. 350].)

(Farahani v. San Diego Community College Dist. (2009) 175 Cal.App.4th 1486, 1494.)

“ ‘Generally speaking, the existence of laches is a question of fact to be determined by the trial court in light of all of the applicable circumstances … .’ ” (City of Coachella v. Riverside County Airport Land Use Com. (1989) 210 Cal.App.3d 1277, 1286 [258 Cal. Rptr. 795].) However, the issue may be addressed as one of law if the facts are undisputed. (San Bernardino Valley Audubon Society v. City of Moreno Valley (1996) 44 Cal.App.4th 593, 607 [51 Cal. Rptr. 2d 897], overruled on another issue in San Bernardino Valley Audubon Society v. Metropolitan Water Dist. (1999) 71 Cal.App.4th 382, 402–403 [83 Cal. Rptr. 2d 836].)

(Estate of Kampen (2011) 201 Cal.App.4th 971, 997.)

For laches to be a successful defense there must have been unreasonable delay and prejudice to the defendant caused by that delay (30 Cal.Jur.3d at p. 487). For a demurrer to be sustained both the delay and the injury must be disclosed in the complaint (3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, ; 813). Here Ruby claims that Leo retired on August 1, 1973; she does not tell us when she learned of her rights; she filed suit March 10, 1977; there is no suggestion whatever delay occurred would injure Leo. Under these circumstances it is improper to sustain a demurrer on the basis of laches. Rather, any prejudice should be raised in the answer and the issue determined at trial.

(Sangiolo v. Sangiolo (1978) 87 Cal.App.3d 511, 514.)

This ground for demurrer is not persuasive.

Demurrer To Answer

Plaintiff/Cross-Defendant demurs to Defendants’ Answer to the Second Amended Complaint.

Meet and Confer

The Declaration of Steve Lopez reflects that the meet and confer requirement set forth in CCP ; 435.5(a)(3)(B) was satisfied.

Amended Answer

After a demurrer to, or motion to strike, a pleading is filed, an amended pleading may be filed no later than the date an opposition to the demurrer or motion to strike is due, unless the parties stipulate otherwise. (Code Civ. Proc., ; 472(a)). An opposition to a demurrer or motion to strike is due nine court days prior to the hearing date. (Code Civ. Proc., ; 1005(b).)

The opposition to the demurrer was due July 30, 2020. The Amended Answer filed on August 4, 2020 was not filed pursuant to a court order or stipulation of the parties. Accordingly, it was untimely filed and will be STRICKEN pursuant to CCP ; 436(b)(pleading not filed in conformity with the laws of this state).

An amended pleading must address the issues identified below by the Court.

Discussion

1. Entire Answer

Plaintiff demurs to the entire Answer to the Second Amended Complaint on the ground that it is a sham pleading because it has omitted previous judicial admissions pled in the original Answer. Plaintiff points to ¶¶ 45, 46 and 47 of the 2AC as being admitted in the original Answer. The Court finds that the nature of Plaintiff’s objection would have properly been asserted as a motion to strike. (Code Civ. Proc., ; 436.)

This ground for demurrer is not persuasive.

2. Failure To State Facts Sufficient To Constitute A Defense To The Complaint.

Plaintiff indicates he moves for judgment on the pleadings as to Defendant’s Answer. This is improper motion practice. Plaintiff noticed a demurrer, not a motion for judgment on the pleadings. A motion for judgment on the pleadings is not ripe until after the time to demur to the answer has expired. (Code Civ. Proc., ; 438(f)(1).)

The Court will proceed to address this as a demurrer, not as a motion for judgment on the pleadings.

(2) Argumentative Denials. The affirmative form in which the defendant phrases his or her answering averments does not make them new matter. If they merely contradict essential allegations of the complaint, they are simply denials in affirmative form ("argumentative denials"). (Frisch v. Caler (1862) 21 C. 71, 74; Goddard v. Fulton (1863) 21 C. 430, 436; Rancho Santa Margarita v. Vail (1938) 11 C.2d 501, 543, 81 P.2d 533; Jolley v. Clemens (1938) 28 C.A.2d 55, 65, 82 P.2d 51, supra, ;1077.)

(5 Witkin Cal. Proc. Plead ; 1082.)

See also Westly v. Board of Administration (2003) 105 Cal.App.4th 1095, 1117:

The Board's answer alleged merely: "Plaintiff's claims are barred in whole or in part by the doctrine of waiver," and "Plaintiff's causes of action, or some of them, are barred by the doctrine of laches because plaintiff unreasonably delayed bringing suit, causing defendants to reasonably rely on the status quo."

These affirmative defenses consist of legal conclusions that could survive neither a demurrer nor a motion for judgment on the pleadings. (Citations omitted.)

Moreover, affirmative defenses cannot be “proffered in the form of terse legal conclusions, rather than as facts ‘averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint.’ (Citation omitted.)” (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384.)

1. First Affirmative Defense (Complaint Unintelligible and Uncertain).

Unintelligibility and uncertainty are objections to the form of pleading, not affirmative defenses on the merits. This type of objection is to be asserted by demurrer, not an answer.

The demurrer to the first affirmative defense is SUSTAINED without leave to amend.

2. Second Affirmative Defense (Statute of Limitations).

The statute of limitations affirmative defense must specify the statutory section at which the statute of limitations is found (Code Civ. Proc., ; 458) and the cause of action against which the particular statute is asserted. (Code Civ. Proc., ; 431.30(g): “The defenses shall be separately stated, and the several defenses shall refer to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished.”)

In pleading the statute of limitations it is not necessary to state the facts showing the defense, but it may be stated generally that the cause of action is barred by the provisions of section_____ _____ (giving the number of the section and subdivision thereof, if it is so divided, relied upon) of the Code of Civil Procedure; and if such allegation be controverted, the party pleading must establish, on the trial, the facts showing that the cause of action is so barred.

(Code Civ. Proc., ; 458.)

The demurrer to the second affirmative defense is SUSTAINED with leave to amend.

3. Third Affirmative Defense (Failure to State Facts Sufficient to Constitute a Cause of Action.)

The failure to plead facts sufficient to state a cause of action may be asserted by way of answer. (Code Civ. Proc., ; 430.10(e).) This affirmative defense is asserted as to all causes of action. However, as pointed out by Plaintiff, there are insufficient facts pled to indicate why the various causes of action are deficiently pled as to their elements.

The demurrer to the third affirmative defense is SUSTAINED with leave to amend.

4. Fourth Affirmative Defense (Failure To Mitigate Damages); Fifth Affirmative Defense (Waiver); Sixth Affirmative Defense (Estoppel); Seventh Affirmative Defense (Release and Discharge); Eighth Affirmative Defense (Statute of Frauds); Ninth Affirmative Defense (Unclean Hands); Tenth Affirmative Defense (Laches); Eleventh Cause of Action (Failure to State a Claim for Award of Attorney’s Fees); Twelfth Cause of Action (Consent); Thirteenth Affirmative Defense (Violations of State and Local Laws); Fourteenth Affirmative Defense (Condition Precedent); Fifteenth Affirmative Defense (No Breach of Duty).

There are insufficient facts pled to state an affirmative defense. More facts must be pled to explain why these affirmative defenses apply to each cause of action.

The demurrer to the fourth through fifteenth affirmative defenses is SUSTAINED with leave to amend.