Opinion
NOT TO BE PUBLISHED
APPEAL from a Judgment of the Superior Court of Los Angeles County No. NC050251. Patrick T. Madden, Judge.
Law Offices of J.B. Casas, Jr. and J.B. Casas for Defendants and Appellants Alfonso Silva and Alfonso Silva, Jr.
Michael P. Rubin & Associates and Michael P. Rubin for Plaintiff and Respondent Maria Magdalena Silva.
ZELON, J.
Defendant and cross-complainant Alfonso Silva, Jr. appeals the judgment for plaintiff Maria Magdalena Silva on her complaint for adverse possession. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Maria Magdalena Silva and defendant Alfonso Silva are husband and wife. They were married in 1957, and defendant Alfonso Silva, Jr., is their son.
Alfonso, Jr. is also known Alfonso Guillermo Silva. Because the parties share the same last name, for clarity we refer to them by their first names.
On April 12, 1978, the parties acquired property located at 540 East 19th Street in Long Beach, California, holding title as joint tenants. The property contains rental units from which plaintiff collected rent. Plaintiff asserted that Alfonso, Jr. appeared on title for the sole purpose of co-signing a loan to enable them to purchase the property. Alfonso, Jr. claimed that at the time the house was bought, he participated in the decision to buy and was told that he would be an “owner.”
On December 31, 1982, Alfonso Sr. married Enedina Padilla in Mexico, although he was not divorced from plaintiff. He was married to Padilla from 1982 to 1999, and lived with her during that time. From January 1, 1983 through January 1, 2000, neither Alfonso Sr. nor Alfonso, Jr. resided at the property.
The parties presented conflicting evidence on the payment of the mortgage. Plaintiff asserted that Alfonso Jr. never contributed to the mortgage after 1982, but that she alone paid the mortgage between 1982 and 2000. Alfonso Sr. admitted at trial he did not pay any of the mortgage or taxes, but believed that Alfonso Jr. contributed monies towards their payment based on what Alfonso, Jr. had told him. Alfonso Jr. claimed that he paid the entire mortgage, except for two months, from 1998 to 2007.
In 2000, Alfonso Jr. asked plaintiff’s permission to move into the property because he was going through a divorce. Plaintiff charged him $400 a month rent, but she continued to pay the mortgage herself. Plaintiff testified he moved out in 2007, and since that time has not contributed to the mortgage or taxes on the property.
In 2007, Alfonso Sr. moved into the property for several months to assist with Alberto, his son with plaintiff, who was ill. He gave plaintiff money to stay in the house that he denied was rent but which he instead considered to be monies that would help with the house. Alfonso Sr. moved from the property in 2007 at the request of plaintiff.
During the time from 1982 to 2007, Alfonso Sr. had very little contact with plaintiff. Ricardo Silva, plaintiff’s son, visited the house once or twice a week. Ricardo observed that plaintiff made all decisions about the house and Alfonso Jr. and Alfonso Sr. were not involved. From 1982 to 2000, Alfonso Jr. did not make any repairs on the house, and rarely visited. Even when he lived at the property from 2000 to 2007, Alfonso Jr. did not make any repairs, and he paid $460 a month rent to plaintiff. Instead, plaintiff made all repairs to the property during the period 1982 to 2000. Gonzalo Silva, plaintiff’s son, never saw Alfonso Jr. give her any money; plaintiff made all the mortgage payments.
Alfonso Jr. claimed he visited about 10 times a year, and that he made repairs to the house. He also claimed that he took a mortgage deduction for the $450 a month mortgage for about 15 years, although the mortgage was paid from the rent proceeds of the rentals on the property. Plaintiff never received the mortgage interest deduction statements for the mortgage because Alfonso Jr. received them.
In 2007, Alfonso, Jr. asked plaintiff to permit him to borrow against the property. He intended to borrow approximately $30,000. The lender sought a trust deed against the house as security for the loan. Plaintiff testified that she had never given Alfonso Jr. permission to borrow against the house, nor had he told her how much he wanted to borrow. Gonzalo Silva testified that his mother signed the loan application because she felt threatened. After that, Alfonso Jr. and Alfonso Sr. moved out of the house.
Although plaintiff’s complaint sought cancellation of this trust deed, there is no copy of the trust deed in the record, and the trial court’s statement of decision did not dispose of this claim.
On August 9, 2007, Alfonso, Sr. conveyed his interest by quitclaim deed to Alfonso, Jr.
Alfonso Jr. claimed that at no time did plaintiff tell him he had no rights to the house. Plaintiff testified that she did not tell him he was not an owner because she never felt he was an owner.
Plaintiff’s complaint, filed September 13, 2007, alleged claims for quiet title based on a theory of adverse possession and cancellation of the trust deed executed in 2007 under a theory of duress. Alfonso, Jr. cross-claimed for partition.
The court conducted a bench trial commencing on July 28, 2008. Plaintiff contended that she held possession from 1982 and thereafter under color of title; she was in open, notorious, and exclusive possession; she occupied the premises for a continuous period from 1982 to 1987; and she paid the taxes on the subject property. She also argued that Alfonso Jr.’s cross-complaint was barred by laches and unclean hands. Defendant contended that plaintiff’s possession of the subject property was never expressly or overtly adverse; her claim was without notice to defendant; she was never in exclusive possession; the property constituted community property; her use was permissive because it was between family members; and her claim was barred by the doctrine of laches.
At trial, Alfonso, Sr. renounced any interest in the property.
The trial court, in its Statement of Decision found that (1) Alfonso, Jr. had no interest in the property because plaintiff’s evidence rebutted the presumption of title of Evidence Code section 662, and that the only other interest in the property was Alfonso, Sr.’s one-half interest; (2) plaintiff acquired her husband’s interest through adverse possession because she established that (a) she had possession based on her residence in the house and role as landlord to the tenants; (b) she had a claim of right or color of title under the deed to the property; (c) her possession was open and notorious because Alfonso Sr. abandoned the property and moved to Mexico; (d) her possession was hostile and exclusive because Alfonso, Sr. unequivocally abandoned the property for 17 years; (e) plaintiff paid the taxes out of her separate funds; and (3) plaintiff’s claim was not barred by laches because the adverse possessor did not have the burden to bring a claim to perfect their interest. The court found for plaintiff on the cross-complaint.
DISCUSSION
Alfonso Jr. contends the trial court erred in finding that he had no interest in the property when it was acquired in 1978 and that plaintiff acquired sole ownership of the property through adverse possession, and contends he is entitled to judgment on his cross-claim for partition.
I. ALFONSO, JR. HAD NO OWNERSHIP INTEREST IN THE PROPERTY.
Alfonso Jr. contends the evidence establishes the parties made an express or implied agreement at the time of purchase in 1978 that he would have an ownership interest in the property, that plaintiff is estopped from asserting otherwise, and that there is insufficient evidence to rebut the presumption of title reflected in the deed (Evid. Code, § 662). He contends we review the matter de novo.
Evidence Code section 662 provides that “[t]he 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.” The party asserting that title is held in a fashion different than as stated on the deed may overcome the presumption only by showing an agreement or understanding between the parties that the title on the deed was not what the parties intended. (In re Marriage of Brooks & Robinson (2008) 169 Cal.App.4th 176, 189-190.) Clear and convincing proof is evidence that is “‘“so clear as to leave no substantial doubt”’” and “‘sufficiently strong to command the unhesitating assent of every reasonable mind.’” (In re Marriage of Weaver (1990) 224 Cal.App.3d 478, 487.)
Because Alfonso, Jr. challenges the trial court’s factual findings regarding a disputed factual issue to support its conclusion that plaintiff had rebutted the presumption of title, we apply the substantial evidence standard of review. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632; see also SFPP v. Burlington Northern & Santa Fe Railway Co. (2004) 121 Cal.App.4th 452, 462.) We do not weigh conflicts and disputes in the evidence, as that is the province of the trier of fact, nor do we evaluate the credibility of the witnesses or otherwise reweigh the evidence. (Escamilla v. California Department of Corrections and Rehabilitation (2006) 141 Cal.App.4th 498, 514-515.)
Substantial evidence in the form of plaintiff’s testimony supports the conclusion the parties agreed to put Alfonso, Jr. on the deed solely for the purpose of obtaining a loan.
II. PLAINTIFF ACQUIRED THE PROPERTY BY ADVERSE POSSESSION.
Alfonso, Jr. contends the court erred in finding plaintiff has established adverse possession because one spouse cannot adversely possess against another spouse unless there has been abandonment, dissolution or an affirmative renunciation, none of which occurred. Further, he asserts plaintiff never communicated to Alfonso Sr. her hostile and adverse intent to occupy the property.
In light of the finding that Alfonso, Jr. had no ownership interest arising from the deed, his only interest in the property to be resolved is the interest received through the quit claim of Alfonso, Sr.’s rights.
To establish adverse possession of property, the plaintiff must show: (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. (Gilardi v. Hallam (1981) 30 Cal.3d 317, 321.) We review the trial court’s factual findings in this regard for substantial evidence. (Winograd v. American Broadcasting Co., supra, 68 Cal.App.4th at p. 632.)
Here, Alfonso, Jr. contests the elements of notoriety and hostility, and in his reply brief contends plaintiff was not in continuous possession for the statutory period. We find substantial evidence supports the trial court’s findings.
The record owner must have actual knowledge of the possession, or it must be so open, visible and notorious to constitute constructive notice. (Wood v. Davidson (1944) 62 Cal.App.2d 885, 890.) “There is no requirement in the law that the record owner must have actual knowledge of the claims of the adverse claimant.... Open, notorious and visible possession is the equivalent of actual knowledge. If the adverse claimant is in open, notorious and visible possession of the property involved, and the true owner fails to look after his interests and remains in ignorance of the claim, it is his own fault.” (Ibid.) Possession must be exclusive. (Raab v. Casper (1975) 51 Cal.App.3d 866, 877.) Here, plaintiff exclusively continued to live on the property for at least 18 years after Alfonso, Jr. and Alfonso, Sr. abandoned the property in 1982; at trial, defendants did not deny knowledge that plaintiff was in possession or present evidence that they did not know she continued to live there.
The claim must be adverse to the claim of the true owner. Permissive use will not support adverse possession. (Southern Pacific Co. v. San Francisco (1964) 62 Cal.2d 50, 56.) The element of hostility requires that the claimant’s possession be adverse from the record owner, “‘unaccompanied by any recognition, express or inferable from the circumstances of the right of the latter.’” (Buic v. Buic (1992) 5 Cal.App.4th 1600, 1605.) Here, to establish the element of hostility, plaintiff did not need to expressly communicate her adverse claim to the property to Alfonso, Jr. or Alfonso, Sr., or to establish that they affirmatively “renounced” the property. In Buic,a spouse remained in possession after a judicial decree awarding the property to the other spouse. In such a case, the possessor’s occupation is deemed subordinate to the true owner unless express notice is given of an adverse claim. (Ibid.) Here instead, there was substantial evidence that plaintiff occupied the property as if she were the sole owner: she collected all the rents and paid the taxes and mortgage, repaired the property, and excluded both Alfonso, Jr. and Sr. from the property in 2007. These facts are sufficient to support the trial court’s findings of hostility. (See California Maryland Funding, Inc. v. Lowe (1995) 37 Cal.App.4th 1798, 1806-1807.)
The claimant must be in possession for an uninterrupted period of five years. (Akley v. Bassett (1922) 189 Cal. 625, 641.) Alfonso, Jr. bases his argument not on the fact that plaintiff did not possess the property for five years, but that she never communicated to him during the time he was in Mexico that he had lost his rights in the property. As discussed above, such communication is not a requirement to the maintenance of an adverse possession action. In any event, substantial evidence supports the trial court’s findings that plaintiff was in continuous possession for the period 1983 to 2000; furthermore, defendant presented no evidence to the contrary.
III. PARTITION.
Alfonso, Jr. contends the trial court failed to address the issue of partition in the Statement of Decision, and that we should remand the matter for the trial court to address his claim. Those arguments fail.
First, the trial court expressly denied the partition claim in its statement of decision when it gave judgment to plaintiff on the cross-complaint. Second, the burden was on Alfonso, Jr. to raise in the trial court any alleged deficiencies in the statement of decision; his failure to do so waives the issue. (Fladeboe v. American Isuzu Motors, Inc. (2007) 150 Cal.App.4th 42, 59.)
DISPOSITION
The judgment of the superior court is affirmed. Respondent is to recover her costs on appeal.
We concur: PERLUSS, P. J. JACKSON, J.