Opinion
E050166 Super.Ct.No. RIC524009
10-06-2011
WILLIAM F. HORSPOOL et al., Plaintiffs and Appellants, v. J. DAVID HORSPOOL, as Co-Trustee etc., Defendant and Respondent.
Carter & Carter and Christopher C. Carter; Richard L. Knickerbocker for Plaintiffs and Appellants. Fullerton, Lemann, Schaefer & Dominick and Thomas W. Dominick for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed.
Carter & Carter and Christopher C. Carter; Richard L. Knickerbocker for Plaintiffs and Appellants.
Fullerton, Lemann, Schaefer & Dominick and Thomas W. Dominick for Defendant and Respondent.
I. INTRODUCTION
Plaintiffs William F. Horspool, and Kelly R. Horspool appeal from judgment following the trial court's sustaining of a demurrer without leave to amend in their quiet title/adverse possession action against defendant J. David Horspool on the ground that another action was pending between the same parties on the same cause of action in the San Bernardino County Superior Court (the probate action). Plaintiffs contend: (1) an order and judgment in the probate action were void on their face and may be attacked at any time; (2) all actions taken based on a void order are themselves void on their face; (3) defendants' demurrer tested only defects in the face of the pleading; (4) the trial court erred in finding that plaintiffs' failure to challenge venue in the probate action was not supported by law or evidence; (5) plaintiffs' quiet title action was based on a claim that ripened after the filing of the probate action and could be filed only in the county in which the real property is located; (6) the judgment in the probate action was in excess of the probate court's jurisdiction because it exceeded the prayer in the petition and is therefore subject to collateral attack; (7) the trial court abused its discretion in denying plaintiffs' request for a continuance of the hearing on the demurrer; (8) plaintiffs' quiet title action was not the subject of a compulsory cross-complaint in the probate action; (9) the trial court abused its discretion in denying plaintiffs leave to amend their complaint; and (10) the trial court abused its discretion in denying plaintiffs' request for injunctive relief against defendants' prejudgment writ of possession. We find no error, and we affirm.
Because the parties share a last name, we will refer to them herein by their first names for clarity and convenience, and not intending any disrespect.
The Horspool family is well known to this court by virtue of numerous appeals and writ proceedings stemming from the inability of various family members to cooperate and agree in conservatorship proceedings involving the family patriarch, Raymond P. Horspool, Sr., and from various disputes over property issues. (E.g., Case Nos. E045688, E050097, E047160, E046041, E048232, E048539, E045688.)
While plaintiffs also named Raymond P. Horspool, Jr., as a defendant, the record on appeal does not indicate he was ever served with the complaint.
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II. FACTS AND PROCEDURAL BACKGROUND
A. The Pleadings in the Current Action
Plaintiffs filed their verified complaint in the current action on April 16, 2009, against Raymond, Jr., and J. David as co-trustees of the Raymond P. Horspool, Sr., and Margaret F. Horspool Family Trust Dated 09-05-1996 (the trust). The complaint was captioned, "COMPLAINT TO QUIET TITLE TO REAL PROPERTY (Adverse Possession)." Plaintiffs alleged they were the owners of a residence located at 127 Barrett Road in Riverside (the property) because their possession of the property had been "actual, open, hostile, continuous, and exclusive since September 1999." They alleged they had been in possession of the property "by virtue of decree, the granting of the property to Plaintiffs by the former owner, Raymond P. Horspool, Sr., written instruments such as: a tax records, deed/title, and the finalization of the adverse possession executed on MARCH 01, 2005 by [plaintiffs], and recorded in the Official Records of the County of Riverside Assessor[']s Office on March 01, 2005 in the Deed/Title of the property showing to all their ownership of the property."
On August 14, 2009, plaintiffs filed their verified first amended complaint for declaratory relief, quiet title, injunctive relief, interference with contract, and specific performance against Raymond, Jr., and J. David, as co-trustees of the trust. Plaintiffs again alleged they had acquired title to the property through adverse possession.
J. David filed a demurrer to the first amended complaint under Code of Civil Procedure section 430.10, subdivision (c) on the ground that another action was pending between the same parties on the same cause of action. J. David requested the trial court to take judicial notice of pleadings and records on file in the probate action.
B. The Probate Action
On December 20, 2006, Raymond, Jr., and J. David, as successor co-trustees of the trust, filed a verified petition in the probate action under Probate Code section 850. The petition sought a determination of their entitlement to possession of and title to the property. The petition alleged that Margaret and Raymond, Sr., had been original settlers and trustees of the trust. Margaret died in August 1997. In September 1997, Raymond, Sr., executed a trust transfer deed transferring title to the property to the trust. Raymond, Sr., resigned as a trustee on January 3, 2003, and concurrently, Raymond, Jr., and J. David were appointed as successor co-trustees.
The petition further alleged that on February 7, 2003, Raymond, Sr., purportedly as trustee of the trust, executed a grant deed conveying title in the property to himself and William as joint tenants, and that at the time of execution and delivery of the grant deed, William knew that Raymond, Sr., had no authority to execute the grant deed because of Raymond, Sr.'s resignation as trustee. William paid no consideration for the deed. On November 10, 2004, Raymond, Sr., executed a grant deed purporting to convey title in the property to William. On February 23, 2005, William executed an interspousal individual grant deed purporting to convey title to the property to himself and Kelly as joint tenants.
The petition alleged William and Kelly resided in the property and claimed ownership in the property. Raymond, Jr., and J. David, as successor trustees of the trust, claimed the right to title and possession of the property because the deeds by which William purportedly acquired title were void, in that when the deeds were executed, Raymond, Sr., had no authority to convey title to property out of the trust. The petition sought, among other relief, an order determining Raymond, Jr., and J. David's entitlement to the property and voiding the deeds by which William and Kelly purportedly acquired title to the property.
William and Kelly filed an objection to the petition in April 2007 asserting they were entitled to ownership and possession of the property and raising affirmative defenses of laches, statute of limitations, failure to notify, right of a bona fide purchaser, waiver, and estoppel. However, on September 29, 2008, the court in the probate action issued an order granting Raymond, Jr., and J. David's motion for terminating sanctions for abuse of discovery. The probate court ordered William and Kelly's objection to the petition stricken and ordered that William and Kelly could not participate further in the proceedings. William and Kelly appealed the order, but this court dismissed the appeal on the ground that the order was nonappealable. (Case No. E047160.)
The probate court ordered that a writ of possession of the property be issued. Following various writ and appeal proceedings in this court, we issued a peremptory writ of mandate, ordering the trial court to vacate the prejudgment writ of possession. (William Horspool et al. v. Superior Court; Raymond Horspool, (Jan. 27, 2010, E050097) [nonpub. opin].)
On April 5, 2010, the probate court issued an order determining title to and possession of real property belonging to trust and invalidating instruments. The order stated that the responsive pleadings of William and Kelly had been stricken by a September 29, 2008, action, and the matter proceeded by way of default. The court found that Raymond, Jr., and J. David, as successor trustees of the trust, were the rightful owners of title and were entitled to possession of the property, and that William and Kelly had no right, title to, or interest in the property The court found that William and Kelly had acted in bad faith and that Raymond, Jr., and J. David were entitled to double damages based on the daily rental value of the property from June 12, 2009, through the date of the judgment.
C. Further Proceedings in the Current Action
As noted above, J. David filed a demurrer to the first amended complaint on the ground that another action was pending between the same parties on the same cause of action. (Code Civ. Proc., § 410.10, subd. (c).) J. David concurrently requested the trial court to take judicial notice of relevant documents connected to the probate action.
On November 4, 2009, plaintiffs filed an ex parte notice of motion and motion for temporary and permanent injunction. Plaintiffs sought to enjoin defendants from enforcing the writ of possession obtained in the probate action. On November 5, 2009, the trial court denied the application on the ground it could not stay a writ of possession issued by another court.
Meanwhile, on October 1, 2009, counsel for J. David filed a notice of hearing on the demurrer to take place on December 15. Plaintiffs' counsel filed an opposition to the demurrer on December 1. Before the hearing, counsel for plaintiffs never submitted a written stipulation signed by all the parties or a declaration that all the parties had been notified and had agreed to a continuance. (See Riverside County Superior Court, Local Rules, rule 2.0020.)
On December 15, 2009, at the hearing on the demurrer, the trial court announced its tentative decision: "The Court's tentative is that the demurrer by the defendants based on the other action pending is sustained without leave to amend. Plaintiff's action for adverse possession is the subject of the compulsory cross-complaint in the San Bernardino action because both actions involve the issue of whether the plaintiffs or the trust should have title to the property. The compulsory cross-complaint rule is not negated by the fact that plaintiffs were unable to pursue their claim for adverse possession because they failed to file a cross-complaint before the answer was stricken."
Plaintiffs' counsel failed to appear at the hearing; however, William appeared and stated, "My counsel actually wanted it to be continued, and if you made a tentative ruling he wanted a chance to come in and argue it." J. David's counsel added, "Well, your Honor, I received a phone call from his office yesterday afternoon informing me that he would not be in attending the hearing today. They did not request a continuance. I informed them I intended to proceed with the hearing. They did not indicate that they would want this put on second call or that they would send anyone else from their firm to attend. They did inform me that their client would attend. That was it." The trial court thereupon adopted its tentative decision as the ruling of the court.
Judgment of dismissal was entered on December 29, 2009.
III. DISCUSSION
A. Request for Judicial Notice
Plaintiffs have requested this court to take judicial notice of certain documents from the probate action: (1) a June 22, 2010, case report; (2) an order filed April 5, 2010, determining title to and possession of real property; and (3) a remittitur dated October 21, 2008. Plaintiffs have also requested this court to take judicial notice of the records of appeals and writs filed in this court in case Nos. E048539, E047160, and E050097.
We reserved ruling on the request for consideration with the merits of the appeal. We now grant the request for judicial notice to the extent the designated records and documents provide background for the present dispute.
B. Denial of Injunctive Relief
Plaintiffs contend the trial court abused its discretion in denying their request for injunctive relief against defendants' prejudgment writ of possession in the probate action.
1. Standard of Review
We review the trial court's denial of injunctive relief under the deferential abuse of discretion standard. (E.g., Classis of Central California v. Miraloma Community Church (2009) 177 Cal.App.4th 750, 759.)
2. Additional Background
On November 4, 2009, plaintiffs filed an ex parte notice of motion and motion for temporary and permanent injunction seeking to enjoin enforcement of a writ of possession defendants had obtained in the probate action. Plaintiffs stated in their motion that the writ of possession and other related matters were subject to a then-pending appeal and petition for writ of supersedeas.
At the hearing on the motion, defendants' counsel informed the court that the probate action between the parties was currently pending. The trial court issued its order on November 5, 2009, denying the application. Plaintiffs never appealed from that order.
3. Analysis
An injunction may be granted only when other legal remedies would be inadequate, and the existence of other effective judicial remedies may require denial of a request for an injunction. (Pacific Decision Sciences Corp. v. Superior Court (2004) 121 Cal.App.4th 1100, 1110.) Here, plaintiffs stated in their own motion that an appeal was currently pending in this court concerning the same writ of possession. As noted, in case No. E050097, this court directed the court in the probate action to vacate the writ of possession. (William Horspool et al. v. Superior Court; Raymond Horspool, supra, E050097, p. 3.) Our action establishes conclusively that plaintiffs indeed had another adequate remedy. The trial court did not err in denying plaintiffs' application.
C. Denial of Continuance
Plaintiffs contend the trial court abused its discretion in denying their request for a continuance of the hearing on the demurrer.
1. Standard of Review
We review the trial court's denial of a continuance under the abuse of discretion standard. (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 716.)
2. Discussion
A party seeking a continuance of a hearing on a demurrer is required to show good cause. (See Cotton v. StarCare Medical Group, Inc. (2010) 183 Cal.App.4th 437, 444.) Here, plaintiffs made no showing of good cause for a continuance; in fact, plaintiffs made no showing at all, other than William's assertion that their counsel "wanted a chance" to argue. Plaintiffs' counsel had that chance, but failed to avail himself of it. The case management statement plaintiffs' counsel filed on October 23, 2009, acknowledged that the hearing on the demurrer was set for December 15. However, plaintiffs' counsel never made a timely request for a continuance of the hearing and absented himself from the noticed hearing without any explanation to the court of his reason for doing so and without complying with Riverside County Superior Court Local Rules, rule 2.0020, which requires a written stipulation signed by all parties or a declaration from counsel for the moving party that all parties have been notified and have agreed to a continuance.
"We cannot permit the courts to become a sanctuary for chronic procrastination and irresponsibility on the part of either litigants or their attorneys. The trial judge must assert his power and 'vigorously insist upon cases being heard and determined with as great promptness as the exigencies of the case will permit.' [Citations.] Unnecessary continuances are wasteful, nonproductive, time-consuming and a fertile ground for criticism by the public of the courts." (County of San Bernardino v. Doria Mining & Engineering Corp. (1977) 72 Cal.App.3d 776, 780-781 [Fourth Dist., Div. 2].) We conclude the trial court did not abuse its discretion in denying plaintiffs' last-minute and unexplained request for a continuance.
D. Order Sustaining Demurrer
Plaintiffs contend the trial court erred in sustaining J. David's demurrer to their first amended complaint. They argue their quiet title action was a separate equitable remedy based on statutory time limits that could not have been brought when the probate action was filed and was not subject to the compulsory cross-complaint statute.
1. Standard of Review
We review de novo the trial court's ruling on a demurrer. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) "'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) "When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.]" (Ibid.)
2. Discussion
"A single cause of action cannot be the basis for more than one lawsuit" (Pitts v. City of Sacramento (2006) 138 Cal.App.4th 853, 856), and a defendant may demur to a complaint on the ground that another action is pending between the same parties on the same cause. (Code Civ. Proc., § 430.10, subd. (c); Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 191-192.) The fact that such action is pending does not normally appear on the face of the complaint but is generally based on matters of which the court may take judicial notice. (Code Civ. Proc., §§ 430.30, subd. (a), 430.70.) A court may take judicial notice of records of any court of this state. (Evid. Code, § 452, subd. (d).)
The nature and substance of a cause of action are determined by the right or liability sought to be established or enforced. If the prior action and present action are both based on the same right or obligation, then the causes of action are the same, even though each action seeks different relief. (Carroll v. Puritan Leasing Co. (1978) 77 Cal.App.3d 481, 487.) The test is whether the determination in the first action would be res judicata in the second action. (Stearns v. Los Angeles City School Dist. (1966) 244 Cal.App.2d 696, 714.)
A trustee may bring an action under Probate Code section 850 when "the trustee has a claim to real or personal property, title to or possession of which is held by another." (Prob. Code, § 850, subd. (a)(3)(B).) In the probate action brought under that section, Raymond, Jr., and J. David alleged they were co-trustees of the trust and sought an order determining their entitlement to title and possession of the property, requiring plaintiffs to convey title to and possession of the property to them, and cancelling the deeds by which plaintiffs had purportedly acquired title and any other deeds and encumbrances plaintiffs had executed.
In the current action, plaintiffs sued Raymond, Jr., and J. David as co-trustees of the trust and "Any Other Claimant and to all Persons known and unknown, claiming any legal or equitable right, title, lien, [or] interest" in the property. Plaintiffs sought, among other relief, an order declaring that they had acquired title in the property through adverse possession. In their second cause of action, they sought to "quiet title against all Defendants, and all claims of the other known and unknown persons whom [sic] claim to have a legal right, claim, interest or lien in the subject property, as of the present time."
Plaintiffs argue the parties to the two actions were not the same. However, the petitioners in the probate action were named as defendants in the current action, and plaintiffs were respondents in the probate action and are the named plaintiffs in the current action. The fact that other parties may have been included in the probate action is irrelevant. It cannot credibly be disputed that the parties to the two actions were the same.
Plaintiffs next argue the Probate Code section 850 petition merely sought title and possession of the property on the grounds that the deeds to them were void, and the petition did not mention plaintiffs' right to the property by "quiet title" or "adverse possession." Plaintiffs further contend their quiet title action was based on a claim that ripened after the filing of the probate action and could be filed only in the county in which the real property is located. They argue their quiet title action based on adverse possession ripened either two and a half years after the probate action was filed or at the time of the entry of the April 5, 2010, judgment in the probate action. They argue that only when defendants filed the probate action did they gain knowledge that their title was disputed and thus became adverse.
Plaintiffs alleged in their original verified complaint that they had recorded a "finalization of adverse possession" on March 1, 2005. If, as plaintiffs then alleged, the five-year adverse possession period had thus run before the Probate Code section 850 petition was filed, in December 2006 plaintiffs were required to raise adverse possession in their objection to the petition or by way of a cross-complaint. Plaintiffs now argue that their "adverse possession quiet title claim was unknown and not perfected" when they filed their objection to the petition in the probate action. They argue their claim "could only have risen upon seisin by either (1) an additional 2 1/2 years after December 20, 2006 to complete the 5 years of hostile/adverse ownership; or (2) the voidance of [their] recorded title on April 5, 2010." However, a landowner interrupts the continuous possession element of adverse possession by filing an action for trespass or ejectment (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 325) or by contesting the claimant's right to the property (California Maryland Funding, Inc. v. Lowe (1995) 37 Cal.App.4th 1798, 1803-1804). "In such case, the statute remains tolled while such litigation is pending." (Id. at p. 1804.) Thus, plaintiffs' argument that their title by adverse possession matured during the pendency of the probate proceedings is, as a matter of law, meritless.
Plaintiffs further argue the judgment in the probate action was obtained by default, a default is not a trial on the merits, and J. David therefore cannot establish that a judgment in the probate action is res judicata. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 529 [a clerk's default, as distinct from a judgment of default, has no preclusive effect].) However, "'a judgment of default in a civil proceeding is "res judicata as to all issues aptly pleaded in the complaint and defendant is estopped from denying in a subsequent action any allegations contained in the former complaint." [Citation.]'" (Murray v. Alaska Airlines, Inc. (2010) 50 Cal.4th 860, 871.)
We conclude the trial court properly sustained the demurrer.
E. Denial of Leave to Amend
Plaintiffs contend the trial court abused its discretion in denying them leave to amend their complaint. Plaintiffs argue they could have amended their complaint to (1) include Raymond, Sr., as a defendant since the adverse possession and quiet title action stemmed "from the point that the real property was in [Raymond, Sr.'s] name," and (2) to "lay out, more succinctly the time line of tolling of [plaintiffs'] time under the quiet title action."
1. Standard of Review
We review a trial court's granting of a demurrer without leave to amend under the abuse of discretion standard. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) We determine whether there is a reasonable possibility that a defect in pleading "can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]" (Ibid.)
2. Analysis
"If the plaintiff has not had an opportunity to amend the complaint in response to the demurrer, leave to amend is liberally allowed as a matter of fairness, unless the complaint shows on its face that it is incapable of amendment. [Citations.]" (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747.)
A defendant may properly raise by demurrer the objection that a plaintiff's claim should have been pleaded as a compulsory cross-complaint in a prior action by the defendant against the plaintiff and that an independent action on the claim is barred by Code of Civil Procedure section 426.30 (former section 439). (See Ranchers Bank v. Pressman (1971) 19 Cal.App.3d 612, 616.) Here, the trial court sustained the demurrer without leave to amend after determining that plaintiffs' adverse possession claim was the subject of a compulsory cross-complaint in the probate action.
The compulsory cross complaint statute provides: "Except as otherwise provided by statute, if a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action which (at the time of serving his answer to the complaint) he has against the plaintiff, such party may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded." (Code Civ. Proc., § 426.30, subd. (a).) The intent of the statute is to prevent a multiplicity of actions, and courts construe the statute liberally to achieve that purpose. (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 959.) A "related cause of action" for purposes of section 426.30 is "a cause of action which arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint." (Code Civ. Proc., § 426.10, subd. (c).) "[T]he relatedness standard 'requires "not an absolute identity of factual backgrounds for the two claims, but only a logical relationship between them" [Citation.] . . . . At the heart of the approach is the question of duplication of time and effort; i.e., are any factual or legal issues relevant to both claims?' [Citation.]" (Align Technology, Inc. v. Tran, supra, at p. 960.) However, "[t]he related cause of action must be one that was in existence at the time of service of the answer [citation]; otherwise, the failure to assert it in prior litigation is not a bar under the statute. [Citation.]" (Ibid.)
Here, as noted above, plaintiffs alleged in their original verified complaint that they had recorded a "finalization of adverse possession" on March 1, 2005. Based on that allegation, the five-year adverse possession period had thus run before the Probate Code section 850 petition was filed, and their cause of action was in existence at the time of their answer in the probate action. Their failure to assert then adverse possession bars their current action under the compulsory cross-complaint statute. Also as noted above, plaintiffs now claim their adverse possession claim arose after the probate action was filed. However, the filing of the probate action tolled the running of the adverse possession period. (Nielsen v. Gibson, supra, 178 Cal.App.4th at p. 325; California Maryland Funding, Inc. v. Lowe, supra, 37 Cal.App.4th at pp. 1803-1804). Plaintiffs' argument that their title by adverse possession matured during the pendency of the probate proceedings is, as a matter of law, meritless.
We conclude the trial court did not abuse its discretion in denying plaintiffs leave to amend.
F. Validity of Orders in Probate Action
Plaintiffs' remaining contentions concern challenges to orders and rulings in the probate action. They contend the September 29, 2008, order granting a terminating sanction and the April 5, 2010, judgment in the probate action were void on their face and therefore may be attacked at any time. They further contend all actions taken based on a void order are themselves void on their face. In addition, they contend the trial court erred in finding that their failure to challenge venue in the San Bernardino probate action was not supported by law or evidence, and that Riverside County was the only proper venue for their quiet title action because that is the county in which the property is located. Finally, they contend the award of double damages in the probate action was in excess of the probate court's jurisdiction.
Plaintiffs' challenges to the orders and rulings in the separate probate action are not properly raised in the context of the present action. As recounted above, plaintiffs have already brought direct appeals and petitions for writs to challenge various orders in the probate action, and this court has ruled on those appeals and petitions. Plaintiffs are not entitled to yet another bite at the apple by raising those claims in this action.
IV. DISPOSITION
The judgment is affirmed. Costs shall be awarded to Defendant and Respondent. NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
MCKINSTER
J.
RICHLI
J.