Opinion
B191797
5-14-2007
ISMAEL PEREZ, Plaintiff and Appellant, v. MARIA FERGUSON et al., Defendants and Respondents.
Law Offices of Robert E. Racine and Robert E. Racine, for Plaintiff and Appellant. Law Offices of Phillip G. Samovar and Phillip G. Samovar, for Defendant and Respondent.
NOT TO BE PUBLISHED
This action arises from a dispute between a brother and sister as to the ownership of real property located in Venice, California. Plaintiff and appellant Ismael Perez appeals from the summary judgment entered in favor of his sister, defendant and respondent Maria Ferguson, on Perezs first amended complaint (FAC) for quiet title and related causes of action. Perez contends the trial court erred in finding no triable issues of material fact regarding the affirmative defenses of statute of limitations and statute of frauds. We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
We recite the facts in accordance with the usual rules on appeal from summary judgment. Paragraph 9 of the FAC alleges that the property was purchased in 1991 pursuant to an oral agreement among six siblings, including Perez and Ferguson. The essence of the oral agreement, as set forth in Paragraph 10 of the FAC, was that record title to the property would be held in Fergusons name alone, but Ferguson "merely held legal title and that equitable ownership of plaintiff and his . . . siblings would be conveyed and converted into legal title or an equity buyout upon demand."
Summary judgment is granted when a moving party establishes the right to the entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) In reviewing an order granting summary judgment, we must assume the role of the trial court and redetermine the merits of the motion. In doing so, we must strictly scrutinize the moving partys papers. The declarations of the party opposing summary judgment, however, are liberally construed to determine the existence of triable issues of fact. All doubts as to whether any material, triable issues of fact exist are to be resolved in favor of the party opposing summary judgment. While the appellate court must review a summary judgment motion by the same standards as the trial court, it must independently determine as a matter of law the construction and effect of the facts presented. (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562.)
A defendant moving for summary judgment meets its burden of showing that there is no merit to a cause of action if that party has shown that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subds. (o)(2), (p)(2).) If the defendant does so, the burden shifts back to the plaintiff to show that a triable issue of fact exists as to that cause of action or defense. In doing so, the plaintiff cannot rely on the mere allegations or denial of her pleadings, "but, instead, shall set forth the specific facts showing that a triable issue of material fact exists . . . ." (Code Civ. Proc., § 437c, subd. (p)(2).) A triable issue of material fact exists "if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
In addition to Ferguson and her husband Warren, Perez also named as defendants his four other siblings: Gloria Perez, Ernesto Perez, Louis Perez and Alfredo Perez (referred to collectively as the siblings). Marina Mortgage is also a named defendant.
According to the complaint, the siblings father contributed $ 50,000 toward the purchase price "on behalf of each of his children equally and each of the six siblings also contributed their personal funds to purchase and invest in the Property." Perez subsequently "made improvements and continued to share in monthly installment payments, pay property taxes and other expenses of ownership." On August 6, 1993, Perez began living in the rear house and managing the front rental unit. Perez, "as an owner-occupier," "proceeded to outlay significant amounts of time and money to refurbish the unit he was to occupy."
In a letter to Ferguson and her husband dated January 31, 1995, 1st Nationwide Mortgage informed them that 1st Nationwide had paid the unpaid property taxes on the property and had adjusted their monthly mortgage payments accordingly. In November of that year, a grant deed was filed changing the manner in which title was held from "Warren Ferguson and Maria Ferguson, as joint tenants, as to an undivided 2/3 interest and Warren Ferguson and Estella Ferguson (a.k.a. Maria Ferguson), as joint tenants, as to an undivided 1/3 interest" to Warren and Maria Ferguson, husband and wife as joint tenants. In December 1995, the Fergusons refinanced the property from an adjustable to a fixed interest rate.
On February 5, 1996, Perez requested that Ferguson transfer title in the property to a trust. Three years later, on February 10, 1999, Perez "placed notice on Check of House Payment, due to lack of compliance to Place Home into Trust as Agreed. Harassment began." In his declaration in opposition to summary judgment, Perez explains that "[o]ne of the ways of making sure that the interests of the remaining family members was protected was a request by me to have title transferred to all of the family." Perez avers: [sic] "My written request to transfer the property to a trust was a follow up to my sisters assertions that she would put the property into a trust for all of us."
These facts are set forth in "Exhibit E" to the motion for summary judgment, which appears to be a chronology of events beginning August 6, 1993, and concluding April 10, 2003. In a declaration, Fergusons attorney identifies Exhibit E as "[a]n attachment to the original Complaint."
Meanwhile, in a letter dated October 2, 1996, and addressed to "All Homeowners of 504 Rialto Avenue," Fergusons husband stated that he had been asked to take over management of the property the previous year because the loan was in default; he "was very hesitate [sic] to take over the responsibility for the property because of the way all the principles behave regarding their responsibilities regarding their share of the property"; as of October 2, 1996, however, he was relinquishing management responsibilities: "I feel that the management should be placed in someone elses hands." The letter included an accounting of certain reimbursable expenditures on the property made by Ferguson ($15,580.92) and sibling Gloria Perez ($5,000), and the amount each sibling owed. The letter concluded: "I am confident that each one of you will do and act as responsible homeowners in the future."
Exhibit E contains the following entry for May 5, 2001: "Notice to divide profits from refinancing and put house in parents name."
On March 10, 2003, Ferguson and her husband borrowed $310,350 from Marina Mortgage, secured by a deed of trust on the property.
In Exhibit E, Perez maintains he paid "rent" on the property for April, May, June and July of 2003, but his checks were never cashed. Meanwhile, at some unstated time, Ferguson offered to purchase Perezs interest in the property for $25,000. When Perez declined this offer, Ferguson began unlawful detainer proceedings to evict him from the property. Eventually, Ferguson prevailed and judgment in the unlawful detainer action was entered against Perez; that judgment was on appeal at the time of the summary judgment motion in this action.
This is according to the Exhibit E chronology; copies of the rent checks are not included in the record.
Perez avers that in February 2005, Ferguson told him "she would see to it that I would not `get a penny of what is owed to me on my portion of the property." Perez maintains this statement marks the accrual of his causes of action because it was the first time he realized that Ferguson was not going to keep "her end of the bargain" and was instead "perpetrating a fraud upon myself and the family."
1. The Complaint and Answer
The FAC was filed April 15, 2005. In her verified answer to the FAC, Ferguson denied that there was any agreement between the siblings to purchase the property (the answer). In pertinent part, the answer alleged affirmative defenses of failure to state a cause of action; latches; and statute of frauds. It did not allege a statue of limitations affirmative defense.
An action is commenced for statute of limitation purposes when the complaint is filed. (Code Civ. Proc., § 350.) The record does not indicate when the original complaint was filed and both parties rely on the filing date of the FAC in their discussion of the statue of limitations issue.
2. Summary Judgment
On December 27, 2005, Ferguson filed a motion for summary judgment, or in the alternative summary adjudication, of the FAC. In pertinent part, she maintained that each cause of action was barred by the applicable statutes of limitation and that the quiet title and partition causes of action were barred by the statute of frauds.
In a declaration filed in support of the motion, Ferguson averred that she and her husband owned the property and there had "not been any agreements with anyone to have them also on title." Ferguson denied making any misrepresentations to plaintiff and maintained that, when he stopped paying rent, she prevailed in an unlawful detainer action against him.
In opposition to the motion, Perez filed a declaration expanding on the allegations of the verified FAC. He did not, however, submit any documentary evidence, such as receipts or canceled checks, supporting the claim that he paid a portion of the mortgage, property taxes or other incidents of ownership.
3. The Hearing
At the hearing on the motion, the trial court announced that its tentative ruling was to grant summary judgment on the grounds that: (1) each cause of action was barred by the statute of limitations inasmuch as each arose in 1996, but the complaint was not filed until 2005; and (2) the statute of frauds barred the relevant causes of action. In response to the trial courts inquiry about cancelled checks or other written evidence supporting Perezs claim that he had paid a portion of the mortgage and property taxes over the years, Perezs counsel stated that he believed Perezs declaration averring to such payments in unspecified amounts and on unspecified dates was sufficient to raise a triable issue of fact. Unpersuaded, the trial court adopted its tentative as the ruling.
Judgment was entered on April 17, 2006, and notice of entry of judgment was served on April 19, 2006. Perez filed a timely notice of appeal.
DISCUSSION
Perez contends summary judgment should not have been granted on the grounds of the applicable statute of limitations because Fergusons answer did not allege a statute of limitations affirmative defense. Ferguson counters that Perez forfeited this issue by failing to raise it in the trial court. We agree with Ferguson, and conclude the statute of limitations bars the FAC.
Civil actions can only be commenced within the prescribed limitations period "after the cause of action shall have accrued, . . ." (Code Civ. Proc., § 312.) A cause of action accrues when " ` "the wrongful act is done and the obligation or the liability arises" " and the party owning the cause of action may bring suit. (Howard Jarvis Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th 809, 815 (Howard).) Although application of the statute of limitations in a particular case may raise questions of fact that must be tried, summary judgment is proper when the uncontradicted facts are susceptible of only one legitimate inference. (Kline v. Turner (2001) 87 Cal.App.4th 1369, 1374.)
All future undesignated statutory references are to the Code of Civil Procedure.
Summary judgment cannot be granted on a ground not raised by the pleadings. (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654.) The statute of limitations is an affirmative defense that must be specifically raised or it is waived. (5 Witkin, Cal. Procedure (4th ed. 1996) Pleading, § 1043, pp. 491-492.) But a plaintiff who does not raise in the trial court the defendants failure to assert an affirmative defense as a ground to defeat summary judgment, cannot do so for the first time on appeal. (Ramos v. City of Santa Clara (1973) 35 Cal.App.3d 93, 95-96 [trial court properly allowed defenses which were not specially pleaded to be raised by motion for summary judgment where plaintiff did not object to summary judgment for failure to specially plead].)
Here, the applicable limitation periods are as follows:
• Three years for actions based on fraud. (§ 338, subd. (d).) This applies to the first cause of action for quiet title; second cause of action for partition; third cause of action for constructive trust; fourth cause of action for money had and received; eighth cause of action for fraud; and ninth cause of action for unjust enrichment. (See Ankoanda v. Walker-Smith (1996) 44 Cal.App.4th 610, 615 (Ankoanda) ["The law is clear that the theory of relief underlying an action for quiet title, in this case fraud or mistake, determines which statute of limitations applies"]; see also First Nationwide Savings v. Perry (1992) 11 Cal.App.4th 1657, 1670 [" `A quasi-contract action, in the form of a common count for money had and received, to recover money obtained by fraud (waiver of tort) or mistake, is governed by the fraud statute "].) "A cause of action subject to section 338, subdivision (d), does not accrue `until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake. (§ 338, subd. (d).)" (Ankoanda v. Walker-Smith, supra, 44 Cal.App.4th at p. 615.)
• Three years for the seventh cause of action for conversion. (§ 338, subd. (c) [action for taking, detaining, or injuring personal property].)
• Two years for the fourth cause of action for accounting and sixth cause of action for breach of an oral agreement. (§ 339, subd. (1) [an action upon a contract, obligation or liability not in writing].)
Paragraph 10 of the FAC alleges that the agreement between the siblings was that Ferguson would convey legal title to the siblings "upon demand." The evidence is uncontroverted that Perez requested that Ferguson transfer the property into a trust on February 5, 1996. (Exhibit E.) When Ferguson failed to comply within a reasonable time with Perezs demand to convey legal title to a trust, Perez would have been entitled to maintain an action against Ferguson to enforce the alleged agreement. The only legitimate inference from these uncontroverted facts is that, soon after February 5, 1996, a reasonable person in Perezs position would conclude he was injured as the result of Fergusons failure to abide by the alleged agreement. Accordingly, Perezs causes of action accrued in 1996. (See Howard, supra, 25 Cal.4th at p. 815.) Since Perez did not commence this action by the filing of a complaint until more than nine years later, each cause of action is barred by the applicable statute of limitation.
Exhibit E contains the only evidence in the record of a request by Perez to have Ferguson place title to the property in a "trust." The only reasonable inference is that this is the "written request to transfer the property to a trust" referred to by Perez in his declaration. Thus, the record belies appellate counsels oral argument that the Exhibit E reference to a "trust" is too vague to constitute undisputed evidence that, on February 5, 1996, Perez made a demand that Ferguson perform under the alleged oral agreement.
At best, Perezs causes of action accrued no later than February 10, 1999, when the uncontroverted evidence established that Perez "placed notice on check of house payment, due to lack of compliance to place home into trust as agreed." This is still more than six years before the action was commenced.
Although Ferguson did not plead the statute of limitations as an affirmative defense, this is not determinative. Perez waived this deficiency by not raising it in the trial court. Having failed to do so, he cannot argue it for the first time on appeal. (Ramos v. City of Santa Clara, supra, 35 Cal.App.3d at pp. 95-96.)
Inasmuch as each of Perezs causes of action are barred by the applicable statute of limitations, summary judgment was proper and we need not consider the alternate grounds relied on by the trial court.
DISPOSITION
The judgment is affirmed. Ferguson shall recover her costs on appeal.
We concur:
COOPER, P. J.
BOLAND, J.