Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Dallas Holmes, Judge, Super.Ct. No. RIC405998
Mohammed Haider, in pro. per.; and Voss, Cook & Thel and Francis T. Donohue III for Defendants and Appellants.
Reid & Hellyer, David T. Bristow and Michael G. Kerbs for Plaintiffs and Respondents.
OPINION
King, J.
I. INTRODUCTION
Plaintiffs Jack and Christina Akmakjian and defendants Mohammed and Mary Haider purchased an apartment building. (Mrs. Akmakjian and Mr. Haider are sister and brother.) The parties took title to the property as joint tenants. The Akmakjians subsequently quitclaimed their interests in the property to a trust (the Trust), with Christina Akmakjian as trustee. After disputes arose between them, the Akmakjians sued the Haiders to partition the property by sale, and for an accounting.
Although the Akmakjians are named as plaintiffs in their individual capacities, they do not allege that they have any interest in the property in such capacities and, therefore, do not appear to be proper plaintiffs in a partition action. (See Code Civ. Proc., § 872.230, subd (b) [complaint must allege the plaintiff’s interest in the property].) Their standing to sue for partition, however, was not challenged below and is not asserted on appeal. We do not, therefore, address the issue.
Following a bench trial, the court issued an interlocutory judgment declaring that the parties are cotenants of the property, and that Christina Akmakjian, trustee of the Trust, holds an 85 percent interest in the property and the Haiders hold a 15 percent interest. The Haiders appealed.
The Haiders contend that the judgment is contrary to law for two reasons: first, allegations in the first amended complaint that the Trust holds a 50 percent joint tenancy interest in the property are judicial admissions that preclude the trial court from ordering an unequal division of interests; and second, language in the initial grant deed and the subsequent quitclaim deed to the Trust conclusively establish that the Akmakjians obtained a 50 percent interest in the property. We disagree and affirm.
We summarize the facts, as we must, in the light most favorable to the prevailing parties (here, the Akmakjians), resolving all conflicts in the evidence and all legitimate and reasonable inferences that may arise therefrom in favor of the judgment. (Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1137-1138; Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925.)
In 2002, Mr. Haider approached Mrs. Akmakjian about purchasing an apartment building in Corona for investment purposes. They orally agreed that they would each contribute $75,000 for the down payment, with the remainder of the purchase price to be funded by a new $447,000 loan secured by a first deed of trust against the property. They would, according to Mrs. Akmakjian, be “equal partners.” Mr. Haider would manage the property and collect rents.
Subsequently, Mr. Haider learned that the anticipated loan was not approved. He told Mrs. Akmakjian that the purchase of the property would require all cash. Mrs. Akmakjian agreed to contribute $310,000 toward the purchase price with the understanding that Mr. Haider was contributing approximately the same amount. Based upon their conversations, she also understood that the parties would refinance the transaction within three or four months after the purchase. As a result of the refinancing, the cash contributions of the parties in excess of $75,000 would be returned.
At the time for signing the closing documents, Mrs. Akmakjian was asked to sign loan documents for a loan in the approximate amount of $202,000. Mrs. Akmakjian was surprised by this because she understood that the purchase was to be paid entirely with cash from the two couples. Nevertheless, she signed the note because “it was already too late not to sign it.” She was not asked how she wanted to hold title to the property and did not know that title could be held in different ways.
The documents regarding this loan are not included with the record on appeal. Mr. Haider described it during trial as a “note secured by [a] wrap-around deed of trust.”
The deal closed in August 2002. The Akmakjians paid $310,000 toward the purchase price. The Haiders paid $46,644.37, including a $5,000 deposit.
The deed to the property states that it is granted to “Mohammed Isaq Haider and Mary Haider, husband and wife and Jack Hagop Akmakjian and Christina Akmakjian, husband and wife, all as Joint Tenants.”
According to Mrs. Akmakjian, she tried contacting Mr. Haider during the next few months, but Mr. Haider would not return her calls. When Mrs. Akmakjian did speak with Mr. Haider in December 2002 about the progress of refinancing, he screamed and cussed at her. Thereafter, the two did not speak.
The testimony regarding the posttransaction communications between the parties differed greatly. According to Mr. Haider, he spoke with Mrs. Akmakjian one or two months after the transaction closed. Mrs. Akmakjian said that she had an offer for an investment that would give her a 12 percent return. Apparently, she could not take advantage of this opportunity because of her contribution toward the purchase of the property. Mr. Haider offered to pay her 13 percent on the money she contributed for the property. He gave her checks (using their father as an intermediary because the two were “no longer on talking terms”) for $3,358 and $17,000 as payment of interest on her contribution. These checks were made in November 2002 and March 2003, respectively. Mrs. Akmakjian could not recall receiving the $3,358 check and, on the advice of her counsel, never cashed the $17,000 check.
In July 2003, the Akmakjians executed a quitclaim deed reciting that they, “as joint tenants,” quitclaim their interests in the property to the Trust. The quitclaim deed was recorded in September 2003.
In January 2004, the Akmakjians filed an unverified complaint against the Haiders asserting a cause of action for “partition and sale of real property.” A first amended complaint was filed in June 2005, without change in the allegations relevant to this appeal. The first amended complaint includes the following allegations:
The original complaint included a cause of action for fraud against Mr. Haider. This cause of action was voluntarily dismissed and not included in the first amended complaint.
“16. Despite contributing ninety-one percent (91%) of the purchase price of the Property, the Akmakjians received only a fifty percent (50%) joint tenancy interest in the title on the Property. [¶] . . . [¶]
“18. In or around October 2003, Jack Akmakjian transferred by quitclaim deed any and all interest he had in the Property to Christina Akmakjian. Christina Akmakjian subsequently transferred her interest in the Property to the Christina Haider Akmakjian Living Trust, which now owns fifty percent (50%) interest in the Property. [¶] . . . [¶]
“24. The Christina Haider Akmakjian Living Trust (‘the Trust’) is the recorded [sic] owner of a fifty percent (50%) interest in joint tenancy (as shown in the title report attached to this complaint as Exhibit ‘A’, and incorporated herein by reference) in the above-mentioned property, which is co-owned concurrently by [Mr. and Mrs. Haider].”
The plaintiffs sought, among other relief: “partition by sale of the present interests in the Property according to the respective rights of the parties”; an accounting; and “a determination by this court of the Plaintiffs’ equitable ownership interest in the Property.” (The record on appeal does not include any answer to the first amended complaint.)
At trial, plaintiffs sought the partition by sale of the property, the appointment of a referee (to manage the property, oversee the sale, and handle the proceeds), an accounting, and a declaration that Mrs. Akmakjian holds an 85 percent equitable interest in the property. Defendants did not dispute the right of Mrs. Akmakjian to partition, but, instead of a sale of the property, defendants sought a partition of the apartment building by converting the property into condominiums, then dividing the condominiums between them. Defendants also asserted that, because the parties took title as joint tenants, the parties held equal shares to the property regardless of differences in their contributions to the purchase price.
In the alternative, plaintiffs sought a declaration that Mrs. Akmakjian owns a 50 percent interest in the property, and that the “excess cash capital the Akmakjians contributed in the amount of $263,355.63, plus interest from December 8, 2002, on such amount, be credited to Christina Akmakjian.”
The case was tried by the court. Following the close of evidence and argument, the court ruled from the bench. The court ordered that, pursuant to Code of Civil Procedure section 872.820, “the property be sold and the proceeds divided among the parties in accordance with their interest in the property as determined in this interlocutory judgment.” With respect to the parties’ interests in the property, the court declared that “plaintiff, Christina Akmakjian, is entitled to an ownership interest in the property of 85 percent, based on the cash contributions made to purchase the property.”
A written interlocutory judgment was subsequently entered, stating, as is relevant here:
“1. . . . Plaintiff Christina Akmakjian, Trustee for the Christina Haider Akmakjian Living Trust, is the owner as a cotenant, tenant in common, of an undivided interest in [the property]. . . . [¶] . . . [¶]
“2. Defendants are the other owners as cotenants of an undivided interest in the Property with Christina Akmakjian.
“3. The interests in the Property of the co-tenants is as follows: Christina Akmakjian, Trustee for the Christina [Haider] Akmakjian Living Trust, possesses an 85-percent interest in the Property, based on the cash contribution of $310,000 towards the purchase of the Property by her predecessors in interest, Jack and Christina Akmakjian, Husband and Wife; and the Haiders possess a 15-percent interest in the Property, based upon their cash contribution of $46,644.37 towards the purchase of the Property.”
The Haiders filed a motion for new trial on the ground, among others, that “when a true joint tenancy exists, the court may not order reimbursement or contribution on the account or differences in the amounts the parties have paid toward initial acquisition of the property . . . .” (Underlining omitted.) The court denied the motion. The Haiders appealed. (See Code Civ. Proc., § 904.1, subd. (a)(9).)
III. ANALYSIS
The Haiders contend that the trial court “was compelled by law to find that the Trust held a 50% joint tenancy in the property, rather than an 85% co-tenancy interest.” The argument has two prongs: (1) the allegations in the first amended complaint (set forth above) to the effect that the Akmakjians received a 50 percent joint tenancy interest in the property, and that the Trust “now owns fifty percent (50%) interest in the Property” constitute judicial admissions and preclude the trial court from making an unequal division of the property; and (2) the language in the initial grant deed and the subsequent quitclaim deed to the Trust “conclusively established” that the Trust held a 50 percent interest in the property.
A. Allegations of Ownership in the First Amended Complaint
“‘An admission in the pleadings is not treated procedurally as evidence; i.e., the pleading need not (and should not) be offered in evidence, but may be commented on in argument and relied on as part of the case. And it is fundamentally different from evidence: It is a waiver of proof of a fact by conceding its truth, and it has the effect of removing the matter from the issues. Under the doctrine of “conclusiveness of pleadings,” a pleader is bound by well pleaded material allegations or by failure to deny well pleaded material allegations. [Citations.]’” (Valerio v. Andrew Youngquist Construction (2002) 103 Cal.App.4th 1264, 1271, quoting 4Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 413, pp. 510-511.)
Whether a statement constitutes a judicial admission depends upon whether the party making the statement intended it as an admission or the opponent could reasonably have construed it as such. (See Hoagland v. Chargin (1955) 134 Cal.App.2d 466, 474; Zelayeta v. Pacific Greyhound Lines (1951) 104 Cal.App.2d 716, 733-734; see also 9 Wigmore, Evidence (Chadbourn rev. 1981) § 2594, p. 833 [a judicial admission is “by intention an act of waiver relating to the opponent’s proof of the fact and not merely a statement of assertion or concession made for some independent purpose,” italics added].) Statements that are “in any degree ambiguous” cannot constitute judicial admissions. (Irwin v. Pacific Southwest Airlines (1982) 133 Cal.App.3d 709, 714; Scafidi v. Western Loan & Bldg. Co. (1946) 72 Cal.App.2d 550, 562.)
The allegations isolated by the Haiders must be viewed in the context of the nature of a partition action and the pleading as a whole. In a partition action, “[t]he interests of the parties, plaintiff as well as defendant, may be put in issue, tried, and determined in the action.” (Code Civ. Proc., § 872.610.) Furthermore, “[t]o the extent necessary to grant the relief sought or other appropriate relief, the court shall upon adequate proof ascertain the state of the title to the property.” (Id., § 872.620.) The Akmajians put the respective interests of the parties in issue when, in the first amended complaint, they expressly requested “a determination by [the] court of the Plaintiffs’ equitable ownership interest in the Property.”
In light of the requested relief to determine the equitable ownership in the property, it appears to us that the allegations that defendants point to merely assert that the Trust held record title to a 50 percent interest in the property at the time the pleading was filed. The allegations are unsurprising because, at the time the action was filed, the recorded deeds in fact reflected a 50 percent ownership interest in the property. As such, these allegations are not inconsistent with the requested relief to determine the equitable ownership of the property, which may differ substantially from the title as reflected in the official records. Thus, viewing the pleading as a whole, the allegations of 50 percent ownership are reasonably construed as assertions of the way things are (as reflected in the official records), not as they should be; and the court is requested to determine how it should be. At a minimum, the allegations do not unambiguously indicate that Mrs. Akmakjian intended to waive proof on the issue of the parties’ respective equitable interests in the property. They are not, therefore, judicial admissions precluding the court from determining the interests of the parties in the property.
Although Mrs. Akmakjian, as trustee of the Trust, held record title to a 50 percent interest in the property, it appears that the joint tenancy created by the original deed to the parties was severed by the 2003 transfer of the Akmakjians’ interests to the Trust. (See Estate of Powell (2000) 83 Cal.App.4th 1434, 1441-1443; Civ. Code, § 683.2, subd. (a)(1); 5 Miller & Starr, Cal. Real Estate (3d ed. 2006) § 12:29, p. 12-70.) Nevertheless, as Mr. Haider argues, such severance is, by itself, immaterial to the critical issue of whether Mrs. Akmakjian (as trustee of the Trust) held more than 50 percent of the interests in the property. What matters, according to Mr. Haider, is that the Akmakjians could transfer only their 50 percent interest to the Trust, and that the Akmakjians alleged (i.e., judicially admitted) that the Trust held only a 50 percent interest in the property.
The Haiders argue that failing to give the subject allegations conclusive effect would work unfair prejudice against them because, in reliance on the allegations, they elected to forego putting on evidence to show that “the 50-50 ownership split was not only reasonable, but actually was overly favorable to the Akmakjians.” The Haiders, however, cannot claim they were surprised the trial would encompass a determination of the relative ownership of the property. As explained above, the relief sought in the pleading expressly included a judicial determination of the parties’ equitable ownership. Moreover, prior to trial, the Haiders filed a “Joint Statement [--] Defendants’ Section,” which includes legal and factual argument “[w]ith respect to shares of the parties in the subject property.” In this document, the Haiders refer to Milian v. De Leon (1986) 181 Cal.App.3d 1185 for the proposition that “joint tenants [are] not entitled to reimbursement for uneven payments toward the acquisition of the property.” They also refer to evidence of their “human capital” contributions and the “lost opportunity cost” of foregoing other investments. The Haiders were thus aware that the possible determination of unequal shares was an issue.
B. Effect of the Language in the Deeds
The Haiders contend that language in the deeds conclusively established that the Trust held a 50 percent joint tenancy interest in the property. In particular, the 2002 Grant Deed transferred the property to the Akmakjians and the Haiders “all as Joint Tenants.” In addition, they assert that the Akmakjians acknowledged the joint tenancy status when they transferred their interest “as joint tenants” to the Trust.
“A joint tenancy in real property consists of an estate owned jointly in undivided equal shares by two or more persons.” (5 Miller & Starr, Cal. Real Estate, supra, § 12:22, p. 12-57; see also Civ. Code, § 683 [“A joint interest is one owned by two or more persons in equal shares”]; Milian v. De Leon, supra, 181 Cal.App.3d at p. 1195 [“by definition joint tenancy ownership means equal ownership”].) In contrast, the interests of tenants in common need not be equal. (5 Miller & Starr, Cal. Real Estate, supra, § 12:35, p. 12-83.)
A joint tenancy can be created by a deed transferring property to two or more persons expressly stating that title is a joint tenancy. (Civ. Code, § 683.) However, a declaration in a deed that the property is held in joint tenancy is not conclusive as to the character of the real property; rather, “it creates a rebuttable presumption that it is held in joint tenancy.” (Machado v. Machado (1962) 58 Cal.2d 501, 506.) The presumption created by the deed can be overcome “by evidence tending to prove a common understanding or an agreement that the character of the property was to be other than joint tenancy.” (Ibid.) An understanding of such an agreement “may be inferred from the conduct and declarations of the [parties].” (Thomasset v. Thomasset (1953) 122 Cal.App.2d 116, 133, disapproved on another ground in See v. See (1966) 64 Cal.2d 778, 785-786.)
“[I]n a suit for partition all parties’ interests in the property may be put in issue regardless of the record title [citations], and the court may consider the fact the parties have contributed different amounts to the purchase price in determining whether a true joint tenancy was intended [citations]. If a tenancy in common rather than a joint tenancy is found, the court may either order reimbursement [citation] or determine the ownership interests in the property in proportion to the amounts contributed [citation].” (Milian v. De Leon, supra, 181 Cal.App.3d at pp. 1195-1196.)
In Cosler v. Norwood (1950) 97 Cal.App.2d 665, the plaintiff and defendant purchased a duplex for $27,000. Title to the property was taken in the names of the parties as joint tenants with the understanding that each should pay half of the purchase price. However, plaintiff paid $6,750 toward the total purchase price and defendant paid $20,250. In an action seeking partition of the property and an accounting, the trial court decreed that the plaintiff owned a one-fourth interest, and the defendant owned a three-fourths interest, in the real property. On appeal, the plaintiff asserted that the defendant was estopped to claim that she held more than a one-half interest in the property because title to the property was taken in their names as joint tenants. The Court of Appeal disagreed, stating that the plaintiff, “by seeking a partition and an accounting put in issue the interest of each of the parties to the real property in question. Therefore the deed of joint tenancy was only one item of evidence to be considered by the court in connection with other probative facts produced by plaintiff and defendant.” (Id. at p. 666.)
In Kershman v. Kershman (1961) 192 Cal.App.2d 23, the plaintiff and defendant took title to certain property as joint tenants. Based upon evidence regarding the parties’ respective contributions toward the purchase price, as well as evidence of other payments and the receipt of rental income, the trial court found that the plaintiff held a 93.3 percent interest in the property and the defendant held a 6.7 percent interest in the property. (Id. at p. 26.) On appeal, the defendant argued “that the trial court did not have the power under the pleadings to do other than order an equal division of the proceeds upon the sale. It is claimed that this is an action for the partition of property held in joint tenancy, and that a joint tenant is, ipso facto, an owner of an undivided one-half interest.” (Ibid.) Relying on Cosler, the Court of Appeal rejected the argument. Notwithstanding the taking of title by joint tenancy, the court held that there was ample evidence to support the finding that the parties’ “interests were to represent at any given point of time the contemporaneous proportion of their respective contributions in relation to the total.” (Kershman v. Kershman, supra, at p. 27.)
These authorities clearly establish that in a partition action, title to property expressly taken in joint tenancy can be determined to be otherwise, and that the trial court may adjudicate the interests of the parties based upon the parties’ contributions toward the purchase of the property. The language in the deeds do not, therefore, conclusively establish the parties’ respective interests in the property.
To the extent the Haiders also assert that there is insufficient evidence to support the court’s allocation of interests in the property, we reject the argument. There is evidence that the Akmakjians paid $310,000 and the Haiders $46,644.37 toward the purchase price. The Akmakjians thus paid approximately 87 percent of the purchase price. Based on such evidence, the court could reasonably award them an 85 percent interest in the property.
IV. DISPOSITION
The interlocutory judgment is affirmed. Respondents shall recover their costs on appeal.
We concur: Richli, Acting P.J., Miller, J.