Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, No. 05CC12936, David A. Thompson, Judge.
Michael F. Babitzke for Plaintiff and Appellant.
Robert S. Lewin for Defendant and Respondent.
ARONSON, J.
Kirk D. Robinson appeals the judgment of the trial court denying him relief in his quiet title action against his aunt, Shann Elyse Chastain. Robinson challenges the sufficiency of the evidence to support the trial court’s judgment granting title in her mother’s home to Chastain by adverse possession. Because substantial evidence supports the judgment, we affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
In 1993, Robinson aided his grandmother, Lorraine Chastain, in obtaining a home equity loan on her residence in Orange to accomplish needed repairs. Robinson handled the loan transaction, obtaining Lorraine’s signature on the necessary documents. He also obtained Lorraine’s signature on a deed to the home naming him as her joint tenant. Robinson advised Lorraine and Chastain that he deposited the loan proceeds, $23,489.35, in a separate account to be used only for house repairs and to make payments on the loan. He admitted at trial, however, that he deposited the money in his personal bank account. Robinson applied approximately $6,000 of the loan proceeds to repairs, but squandered the rest. He gave $4,450 to his fiancée; $4,500 to an “acquaintance,” spent thousands of dollars on computer games, and kept over $5,000 for himself.
We subsequently refer to her as Lorraine to avoid confusion with respondent, her daughter.
Robinson moved out of the house in mid-1997. Chastain did not live with her mother at the time, but began to undertake the remaining repairs, which cost more than $15,000. According to Chastain, once Lorraine understood the effect of a joint tenancy deed, she hired a lawyer to resolve the matter. The lawyer, however, only had Lorraine execute a power of attorney in favor of Chastain, which Lorraine failed to have notarized.
Chastain moved back into Lorraine’s home in March 1998. Lorraine wanted Chastain to have the home, so she directed Chastain to execute a quitclaim deed to herself using the power of attorney. Chastain recorded the deed in December 1998 and filed, on Lorraine’s behalf, the requisite transfer of ownership form with the tax assessor’s office. Chastain checked the box on the assessor’s form stating that the transferor, Lorraine, owned the property in joint tenancy. She specified in an attachment to the assessor’s form the fraudulent manner in which Robinson became the other joint tenant. Chastain’s resolve grew to hold the home as her own, regardless of the fraudulent deed Robinson obtained. She paid the taxes on the home continuously for more than five years, beginning in October 1999.
Noting that Robinson’s “whereabouts are unknown,” Chastain’s letter to the assessor stated: “This individual is the grandson of [Lorraine]. He took her to get a loan on the home for repairs to the home. This is how his name got on the deed as a joint tenant. The money obtained by the loan, he used a portion to put a roof on the property. This was all that was done to the property with the loan money. He apparently took the rest of the money with him, as [it] is no where to be found. [¶] He has had very minimal contact with my mother (Lorraine Chastain) and whenever he calls her he won’t tell her where he is. We have been left to make the payments on the loan ourselves[,] and any further improvements to the house I personally have paid for. I would like to know how to contact Kirk myself as you can imagine, attorney fees has [sic] also been costly in regards to trying to handle this problem. [¶] Because of the above situation my mother’s portion of the property has been transferred to me, as we both live at the above[-] mentioned property, and I am trying to be sure that her wishes are followed as to what she desires to be done.”
Lorraine died in February 2000. At her funeral, Chastain presented Robinson with a quitclaim deed, demanding that he sign it. When Robinson refused, Chastain embraced him with what her attorney later characterized as a “Mafia hug.” She whispered in his ear, “‘We know what you’ve done,’” and asserted her right to the whole property on account of his misdeeds. Robinson testified he understood at that moment that “Shann wanted the whole property.” He advised her she would hear from his lawyer, but he never pursued the matter further until the spring of 2006, when he paid the property taxes on the home before Chastain could do so and filed his quiet title action.
In ruling against Robinson, the trial court expressly found: “To the extent the testimony of Robinson controverts the evidence proffered by Chastain on any element of adverse possession (e.g. hostil[ity] or advers[ity] element), the Court finds the testimony of Robinson lacks veracity and resolves all such conflicts in favor of Chastain. Robinson deliberately testified untruthfully on these issues and I therefore choose not to believe anything he said.” Robinson now appeals.
II
DISCUSSION
Robinson contends Chastain failed to establish her possession of the home was adverse and hostile to his interests. “Adverse possession is a means of acquiring title to property, after lapse of time, by continued possession.” (12 Witkin, Summary of Cal. Law (2005) Real Property, § 212, p. 270 (Witkin), citing Civ. Code, § 1007.) “To establish title by adverse possession, the claimant must establish the following five requirements: 1) Possession under claim of right or color of title; 2) actual, open, and notorious occupation of the premises in such a manner as to constitute reasonable notice to the true owner; 3) possession which is adverse and hostile to the true owner; 4) possession which is uninterrupted and continuous for at least five years; and 5) payment of all taxes assessed against the property during the five-year period.” (Buic v. Buic (1992) 5 Cal.App.4th 1600, 1604 (Buic); see also Code Civ. Proc., §§ 322-325 [codifying adverse possession requirements].) The burden of proof rests on the claimant. (Dimmick v. Dimmick (1962) 58 Cal.2d 417, 421 (Dimmick).)
As a preliminary matter, Robinson contends the trial court erred in utilizing the preponderance of evidence standard. Robinson relies on Evidence Code section 662, which provides: The owner of the legal title to property is presumed to be the owner of the full beneficial title. This presumption may be rebutted only by clear and convincing proof.” Evidence Code section 662 applies when valid legal title is undisputed and controversy surrounds only the beneficial title. (Murray v. Murray (1994) 26 Cal.App.4th 1062, 1068.) Adverse possession, however, has nothing to do with potential divergences between legal title and who is entitled to the beneficial use or equitable enjoyment of property. Rather, in asserting a superior legal right to the property, the adverse possessor attempts, in essence, to void legal title held by another, and in such instances the preponderance of evidence standard applies. (Ibid.)
Robinson contends Chastain’s claim of title to the home fails because, even assuming Lorraine validly quitclaimed her interest to Chastain, Lorraine only conveyed to Chastain her interest as a joint tenant with Robinson, which did nothing to extinguish Robinson’s interest. In other words, Chastain could only claim a legal right to sever the joint tenancy and obtain half the property, not all of it. But “[t]itle to property by adverse possession may be established under either color of title or by claim of right.” (Gilardi v. Hallam (1981) 30 Cal.3d 317, 321, italics added.) One who oversteps rights conveyed by title asserts, in effect, a claim of right based on possession. (Witkin, supra, § 225, p. 281.)
Exclusive possession, however, is insufficient to establish the requisite hostility to a cotenant’s ownership interest. (Russell v. Lescalet (1967) 248 Cal.App.2d 310, 314 (Russell).) Each cotenant enjoys a right to occupy the whole 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 . . . .’” (Dimmick, supra, 58 Cal.2d at p. 422.)
Here, Chastain alleged Robinson obtained joint tenancy in Lorraine’s home in 1993 by fraud, but the trial court made no specific finding of fraud and apparently did not base its ruling on that ground. Even assuming, however, that Robinson validly obtained his interest and that Lorraine’s quitclaim deed to Chastain gained for Chastain only a joint tenancy with Robinson, Chastain’s actions were sufficient to oust him.
“‘“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.] . . . [Citation.]’” (Russell, supra, 248 Cal.App.2d at p. 314, italics added.) “The occupying cotenant must give notice to the other cotenants of the adversity of his or her possession and of the exclusive claim to the title in such a manner that the cotenant out of possession knows or should know that action is required to protect his or her interest in the property. [Fn. omitted.] Also, the cotenant in possession must exclude the others from possession. [Fn. omitted.] [¶] . . . [¶] Whether there has been a sufficient ouster and notice to the other cotenant out of possession is a question of fact. [Fn. omitted.]” (6 Miller & Starr, Cal. Real Estate (3d ed. 2000) § 16:32, p. 69-71 (Miller & Starr).)
Substantial evidence supports the trial court’s conclusion that Chastain “‘“br[ought] home”’” to Robinson (Russell, supra, 248 Cal.App.2d at p. 314) that she claimed the whole property and nothing less. In dramatic fashion, she embraced Robinson at Lorraine’s funeral in February 2000, whispered in his ear, “‘We know what you’ve done,’” and asserted her right to the whole property on account of his misdeeds. Robinson testified he understood at that moment that “Shann wanted the whole property.” “[W]hen there is an intent to hold the property as against the other cotenants and the other cotenants have actual knowledge of such intent, . . . [s]uch facts would constitute an ouster of the cotenants not in possession and, if continued for the prescriptive period, would enable the tenant in possession to establish a prescriptive title. [Fn. omitted.]” (Miller & Starr, supra, § 16:33, pp. 71-72.) Chastain thereafter excluded Robinson from the property, as required to possess adversely against a cotenant. (Id., § 16:32.)
Robinson testified he reached an agreement with Chastain after the funeral for her exclusive possession of the home if she continued to pay the mortgage and taxes. (See Witkin, supra, § 216, p. 274 [“If the owner permits the person to use the land, the possession is not adverse”].) But Chastain denied any such agreement and the trial court, as the trier of fact, has exclusive province to decide the credibility of witnesses. (Biren v. Equality Emergency Medical Group, Inc. (2002) 102 Cal.App.4th 125, 139.)
Robinson contends he had no notice Chastain changed the locks on the home, made improvements or repairs with or without his permission, or that she had a tenant and kept the rent exclusively for herself rather than paying him his share as a co-owner. Such actions demonstrate the adversity of one cotenant against another, but none is required where Chastain’s announcement at the funeral demonstrated the hostility of her claim. Moreover, while Robinson never tried the locks, Chastain made sure to instruct her neighbor and her tenant to bar Robinson from entry, as they did in November 2004 while she was away, further illustrating the adversity of her claim. Curiously, adverse possession under a claim of right, as opposed to a claim of title, may only be asserted as to “cultivated or improved” land (Code Civ. Proc., § 325; see Witkin, supra, § 226, pp. 281-282), but the home on the property clearly satisfied that criteria.
Robinson’s reliance on Preciado v. Wilde (2006) 139 Cal.App.4th 321 (Preciado) is misplaced. There, the out-of-possession cotenant “had no notice [her uncle] wanted to interfere with her right to possession and title.” (Id. at p. 325.) The uncle admitted he “never excluded” his niece from the property, “never restricted her access, or informed her he was challenging her ownership. He constructed fences, but admitted they were not designed to exclude family members, such as [his niece].” (Ibid.)
Preciado also noted, in upholding the trial court’s denial of adverse possession, that the uncle did not challenge his niece’s interest but rather implicitly recognized its validity when he offered to buy it. (Preciado, supra, 139 Cal.App.4th at p. 326.) Robinson argues Chastain’s request for a quitclaim deed at Lorraine’s funeral constitutes similar recognition of his interest. The trier of fact, however, could reasonably conclude the circumstances manifested a view that Robinson’s interest was not valid because he obtained it by fraud, that Chastain was only presenting him an opportunity to do the right thing by tearing up his fraudulent deed and that, whether he agreed to do so or not, she would hold the whole property adversely to him. His testimony indicated he understood Chastain’s hostile intent fully.
In particular, his threat that she would be hearing from his lawyer showed Chastain had conveyed her adverse intent in “such a manner that the cotenant out of possession knows or should know that action is required to protect his or her interest in the property. [Fn. omitted.]” (Miller & Starr, supra, § 16:32, p. 69.) Robinson answers that his remark about his lawyer says nothing about the hostility of Chastain’s claim because countless innocuous reasons exist to consult a lawyer after a funeral impresses one with the importance of end-of-life issues and planning. Concluding Robinson was a liar, the trial court was not impressed with the spin he placed on his words and actions. It is axiomatic that we must view the evidence in the light most favorable to the judgment. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053.) Robinson’s substantial evidence challenge is therefore without merit.
Finally, Robinson argues a Probate Code provision prohibiting self-dealing destroyed Chastain’s claim of title to Lorraine’s interest in the property, even if Lorraine’s grant of power of attorney to Chastain had been properly notarized. (See Prob. Code, § 4264 [person holding power of attorney may not execute a quitclaim deed to himself or herself].) But Chastain asserted her adverse possession claim under both a claim of title and claim of right and, as discussed, substantial evidence supports judgment in her favor on the latter.
III
DISPOSITION
The judgment is affirmed. Respondent is entitled to her costs on appeal.
WE CONCUR: SILLS, P. J., RYLAARSDAM, J.