Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC372788, Terry A. Green, Judge.
Manuel Garcia, Jr., in pro. per., for Plaintiff and Appellant.
Law Offices of Kelly Warren, Kelly Warren for Defendant and Respondent.
ROTHSCHILD, J.
Manuel Garcia, Jr. sued his deceased mother’s estate seeking to quiet title to real properties based on adverse possession. The trial court found that his possession had not been continuously adverse for the requisite five years. Accordingly, the court sustained the estate’s demurrer without leave to amend and dismissed the action. We affirm.
Because many of the people involved in this case share the same last name we refer them by their first names to avoid confusion.
BACKGROUND
When reviewing a ruling on a demurrer we assume the truth of the complaint’s properly pleaded material factual allegations as well as matters judicially noticed by the trial court. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)
In the 1950s Agustina Garcia, Manuel’s mother, acquired three contiguous parcels of real property in Los Angeles. In 1993 she transferred the properties to herself as trustee of the Garcia family trust. In August 1999 she conveyed one of the trust properties to Teresa, the widow of one of her sons, and to Manuel, as joint tenants. At the same time she conveyed the other two trust properties to herself and Manuel as joint tenants. The parties apparently used all three properties as rental properties.
Thereafter, Agustina’s daughter, Nancy de Anda, filed a petition for appointment of a conservator of the person and estate of Agustina. On January 10, 2000, in the presence of various parties, including Manuel, the court ordered that all three real properties be reconveyed to Agustina forthwith.
We granted the estate’s request to augment the record to include documents of which the trial court took judicial notice. (Evid. Code, § 452, subd. (d).) It is unclear whether the conservatorship documents were also before the trial court when ruling on the demurrer. Manuel, however, filed a request to augment the record with a copy of the court’s orders in those proceedings and we granted his request. In the event the court’s orders in the conservatorship proceeding were not judicially noticed by the trial court, this court may properly take judicial notice of these court documents. (Evid. Code, § 459, subd. (a).)
Apparently, the court’s order of January 10, 2000, to reconvey the three properties was never complied with because on June 21, 2001, Teresa filed a complaint for partition against Manuel and Agustina. Through her temporary conservators, Agustina filed a cross-complaint against Manuel and Teresa to seek rescission of the transfers of the three properties, cancellation of the deeds, and damages. Agustina died on February 27, 2003, and her estate substituted into the action.
The court held a bench trial in August 2004 at which the estate, Teresa and Manuel were represented by counsel. The court ruled against Teresa on her partition complaint and in favor of Agustina’s estate on the estate’s cross-complaint against Teresa and Manuel. On October 27, 2004, the court entered judgment cancelling all three deeds executed by Agustina in August 1999, “restoring title to the real property from that date forward in favor of Agustina Garcia and effective on the date of her death occurring on February 27, 2003, in favor of the Estate of Agustina Garcia.” The judgment ordered Manuel and Teresa to transfer all their title and interest in the properties to the special administrators of Agustina’s estate and declared that from the date the parties executed such deeds, Manuel and Teresa were “[c]onstructive Trustees for the benefit of Agustina Garcia during her lifetime and the Estate of Agustina Garcia after her death.” The judgment ordered an accounting and directed that “[a]ny rental income, rental deposits, rental agreements, and/or loan proceeds which were generated from any of the properties shall forthwith be turned over to Nancy DeAnda and Sergio Garcia as Special Administrators of the Estate of Agustina Garcia.” The court ordered that the properties be subject to the then pending probate proceedings and that any disputes concerning the rental properties’ income or expenses be resolved in those proceedings.
Apparently, respondent Kathleen Bryan was named administratrix for the estate of Agustina Garcia in a probate proceeding in San Bernardino County. On December 13, 2006, at Bryan’s request, the probate court issued a restraining order directing Manuel to cease and desist from collecting rents and from taking further actions with respect to the properties.
On June 15, 2007, represented by counsel, Manuel sued Bryan, as administratrix of Agustina’s estate, and Teresa, alleging a single cause of action to quiet title to all three real properties based on adverse possession. The operative allegations of his complaint alleged that he was the sole owner of the properties based on his “actual, open, exclusive, hostile, and adverse possession of the above described properties for more than five (5) years [preceding] the commencement of this action and [his] payment of all taxes assessed against the above-described properties for the five (5) years immediately [preceding] the commencement of this action.” The complaint provided no specifics regarding the nature or extent of his “possession” of these properties, nor any factual allegations to support the other elements of adverse possession.
Bryan demurred to the complaint, contending that all matters concerning the real properties had been decided in the former partition action in which judgment had been entered on October 27, 2004, and thus principles of res judicata and collateral estoppel barred Manuel’s claims. Bryan requested the court to take judicial notice of the court’s file from those proceedings. Bryan also demurred on the ground that the complaint was vague, ambiguous, and uncertain because it failed to allege specific facts to properly state a claim for adverse possession.
Apparently Teresa did not respond to the suit and she is not a party to this appeal.
Manuel filed opposition. Among other arguments, he claimed that neither the doctrine of res judicata nor collateral estoppel applied because the partition action concerned the validity of the 1999 deeds whereas this action raised the entirely different issue of whether he had acquired title by adverse possession. He asserted that the validity of the deeds was irrelevant to this determination.
He also challenged the demurrer on procedural grounds, alleging that the estate had violated California Rules of Court, rule 3.1320 by failing to state each ground for the demurrer in a separate paragraph. Manuel repeats this argument on appeal. The trial court apparently found the technical flaw immaterial and so do we.
At the hearing on the demurrer on October 9, 2007, the court granted the request to take judicial notice of prior proceedings. Manuel’s counsel argued that because the deeds were set aside it was as if Manuel had never had title and, because enough time had elapsed, he now owned the properties through adverse possession. The court disagreed, finding that before the judgment canceling the deeds on October 27, 2004, Manuel’s possession was not adverse because he was the owner of the property. The court thus found that because five years had not elapsed since that 2004 judgment, Manuel’s complaint did not, and could not, state a claim for adverse possession and accordingly sustained Bryan’s demurrer without leave to amend and dismissed the action.
Manuel filed a notice of appeal in pro. per.
DISCUSSION
Manuel contends the court erred in finding that it would be unjust for him to acquire title to the properties simply because the deeds were found to be invalid in the prior proceeding. He points out that a claim of right is sufficient whether it is deliberately wrongful or based on mistake. (Citing Safwenberg v. Marquez (1975) 50 Cal.App.3d 301, 309-310.) He also contends that because he has been in continuous possession of the properties since 1999, the court erred in finding that he had not satisfied the five-year limitations period.
Whether or not deliberately wrongful possession can satisfy the possession element, Manuel’s complaint, nevertheless, failed to establish that his possession was hostile to all others’ interests continuously for five years. Because he has not suggested how this defect can be cured by amendment, we conclude that the court correctly sustained the demurrer without leave to amend.
Standard of Review
“‘When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect 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.’ (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; see also McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415 [noting that our review is de novo].)” (Zelig v. County of Los Angeles, supra, 27 Cal.4th at p. 1126.)
Elements of Adverse Possession
“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 [(1954)] 43 Cal.2d 702, 706; West v. Evans [(1946)] 29 Cal.2d 414, 417.)” (Dimmick v. Dimmick (1962) 58 Cal.2d 417, 421-422.) “Unless each one of these elements is established by the evidence, the plaintiff has not acquired title by adverse possession.” (West v. Evans (1946) 29 Cal.2d 414, 417.)
Permissive Use
Manuel contends that despite any court orders, he has been in continuous exclusive possession of all three properties since 1999. He thus argues that because the court declared his 1999 titles to the properties invalid, his possession was retroactively adverse to 1999. We disagree. Since 1999, he purported to possess the properties as an owner by right of deed and not adversely and nothing that the court did in 2004 changed his earlier claim that he was an owner by title.
To the extent he claims that starting in 1999, he was possessing his cotenants’ shares adversely, this theory also fails. His possession was presumed permissive and not adverse so long as he held title with his joint tenant. When holding land in joint ownership, “‘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.’” (Dimmick v. Dimmick, supra, 58 Cal.2d at p. 422, quoting Johns v. Scobie (1939) 12 Cal.2d 618, 623.)
Thus, during the time that Manuel held title to the properties, even if his possession was exclusive, it was presumed permissive and could not become adverse absent actual notice to the other cotenants through actions or declarations of a claim hostile to their interests. This is so even though the premises were occupied by Manuel’s renters. (See Wilkerson v. Thomas (1953) 121 Cal.App.2d 479, 488 [“Possession by a renter, in the absence of a showing to the contrary, is presumed to be held under all the cotenants.... 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”].)
Manuel’s complaint provides no facts to suggest that he gave actual notice to either of his cotenants, his mother or Teresa, that he was asserting an interest in their share of the properties hostile to their own. Even assuming, however, that he could amend his complaint to so assert, the 2001 partition action and cross-complaint filed before his alleged five years of adverse possession was completed, terminated his allegedly exclusive possession and the required five-year period was not satisfied.
Continuous Possession for Five Years
Manuel contends that because the court in 2004 determined that his title to the properties were invalid, his possession was adverse since 1999 and that his action in this case filed in 2007, when he was still in possession of the properties, met the five-year requirement. We disagree. Even if we assume that Manuel has in some manner physically possessed the properties since 1999, no period of possession has been continuous for the requisite five years. (Code Civ. Proc, § 325.)
Actions by an owner asserting her rights against the claimed adverse possessor terminate the adverse possession. (See California Maryland Funding, Inc. v. Lowe (1995) 37 Cal.App.4th 1798, 1804 [a landowner can interrupt the continuous possession element of adverse possession by filing an action for trespass, for ejectment, to quiet title, or like action].) The court documents of which the trial court took judicial notice showed that Manuel’s right to possession was challenged in the conservatorship proceeding in 2000. There the court ordered Manuel to reconvey the properties “forthwith.” In 2001 Teresa filed suit to challenge Manuel and Agustina’s interests in the property. Agustina, and later her estate, filed a cross-complaint against Manuel seeking rescission of the instruments transferring the properties and cancellation of the deeds. In December 2006, the estate sought and received a restraining order against Manuel directing him to cease and desist interfering with the rental properties’ operations. Thus, there was never an uninterrupted five-year period of adverse possession.
To the extent the estate contends that Manuel is collaterally estopped from denying that the true owner asserted her rights to the properties through these actions (and ended the limitations period), the estate is correct.
Nor, regardless of Manuel’s continued possession of the properties after October 2004, could his adverse possession begin on that date. Once the court entered this judgment, Manuel’s possession became subordinate to Agustina’s estate and not adverse, absent affirmative acts by him notifying the estate that despite the judgment his continued possession was intended to be hostile and adverse. (See Buic v. Buic (1992) 5 Cal.App.4th 1600, 1605 [“There is a presumption that (the wife’s) continued possession of the property after the dissolution judgment awarded it to (the husband) was subordinate to (the husband’s) rights, not adverse”]; Jaffray v. Mies (1947) 80 Cal.App.2d 291, 293 [“Where a defendant in a suit to quiet title remains in possession or assumes possession after a decree adverse to him and vesting title in another, his possession is presumed to be in subordination to the true owner and does not become adverse without express notice of his adverse claim brought home to said owner.”].)
Arguably, sufficient notice of adversity occurred when Manuel filed the present complaint against Agustina’s estate claiming ownership of the properties through adverse possession. He filed his complaint on June 15, 2007, less than five years after the court’s October 27, 2004, judgment canceling the deeds and transferring all rights and interests in the properties to Agustina’s estate, and only six months after the estate successfully sought a restraining order against him to prevent his further possession of the properties. Because Manuel cannot amend his complaint to state facts to satisfy the five-year period for adverse possession, the trial court did not err in sustaining the demurrer without leave to amend and in dismissing the action. (Zelig v. County of Los Angeles, supra, 27 Cal.4th at p. 1126.)
DISPOSITION
The judgment is affirmed. Respondent is awarded costs on appeal.
We concur: MALLANO, P. J., JOHNSON, J.