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Slaughter v. Whiting

California Court of Appeals, Second District, Seventh Division
Sep 16, 2008
No. B195722 (Cal. Ct. App. Sep. 16, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BC332673, Michael L. Stern, Judge.

Law Offices of Kahlil J. McAlpin and Kahlil J. McAlpin for Defendant and Appellant.

Law Offices of James C. Shields and Gregory A. Scharf for Plaintiff and Respondent.


PERLUSS, P. J.

Michele Whiting appeals from the judgment entered after a bench trial in which the trial court found her grandmother, Estella Slaughter, had obtained title by adverse possession to property located on East 123rd Street in Los Angeles. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The History ofBig Mama’sHome

At the time of trial Slaughter, called “Big Mama” by her extended family, had lived at 1638 East 123rd Street in Los Angeles for approximately 40 years, raising four children and six grandchildren. In 1976 the home was owned by Melvin Perkins, who had fathered a child, Harold Perkins, with Slaughter. Melvin had decided to move to Louisiana to get married, but wanted to give the home to Slaughter and Harold. Because Slaughter did not have a regular job, however, it was decided Melvin would give a grant deed to Slaughter’s daughter by a different father, Estella Whiting, with the understanding the home nevertheless belonged to Slaughter. Estella later purchased a house for herself, but borrowed money for the purchase using the 1638 East 123rd Street property as collateral.

We frequently refer to Michele Whiting, her mother, Estella Whiting, Harold Perkins and Melvin Perkins by their first names not out of disrespect but for convenience and clarity. (See Cruz v. Superior Court (2004) 120 Cal.App.4th 175, 188, fn. 13.)

It is not clear why Slaughter and Melvin believed Slaughter’s lack of a regular job required the home be transferred to Estella. Slaughter initially testified there was concern about an outstanding loan on the home. However, even when it was later determined there was no such loan, she suggested she and Melvin continued to believe transferring title to Estella was more appropriate.

Following a serious illness that required hospitalization, Estella died on June 29, 1990. She left no will. However, on June 26, 1990 a grant deed had been executed transferring title to the home from Estella to Michele, Estella’s daughter and Slaughter’s granddaughter. Michele had been managing Estella’s affairs during her illness. The deed was recorded on September 21, 1990.

On April 29, 2005 Slaughter and Harold filed a complaint against Michele, seeking to quiet title to the home based on a theory of adverse possession and asserting claims for constructive trust, declaratory relief and unjust enrichment. The complaint alleged Slaughter and Harold had resided in the home since before Estella’s death in 1990. The complaint further alleged the home had been conveyed by Estella to Michele merely to facilitate the administration of Estella’s estate after her death and Slaughter and Harold believed Michele would thereafter convey the home to Slaughter. The complaint also alleged, after Slaughter learned Michele intended to obtain a loan secured by the property, Slaughter obtained a preliminary title report showing Michele had not conveyed the home to Slaughter and, in fact, had obtained an equity line of credit secured by a second trust deed against the property without Slaughter’s knowledge or consent.

2. The Bench Trial

At a bench trial commencing on July 24, 2006 and lasting a little more than one day, Michele testified Slaughter was Michele’s tenant in the home and had executed in Michele’s presence a standard form monthly rental agreement dated March 1, 1990. The rental agreement, which provided for rent of $950 per month, was admitted into evidence. Michele, however, claimed she did not know what was meant by the words, “Copyright Rediform 1993-2” printed on the bottom of the first page of the form rental agreement.

Michele also testified she had a secured loan on the home in her name with Washington Mutual Bank and was responsible for paying the property taxes, which were collected in an impound escrow account in conjunction with Michele’s loan. Michele, however, had only made some of the loan payments during the preceding five years; Slaughter had also made some of the payments. In addition, according to Michele, Slaughter had not paid all of the rent due. Michele explained she had not taken any action in response to the nonpayments because Slaughter was her grandmother. Michele attempted to offer into evidence some of the rental receipts she said she had sporadically provided to Slaughter, but the trial court deemed the evidence unreliable and not admissible.

A home loan statement in Michele’s name dated September 14, 2004 reflected a principal balance of $56,002.43. The monthly principal and interest due was $418.73 and the escrow impound for property taxes was $67.87.

Contradicting Michele’s testimony, Slaughter testified she had never signed a monthly rental agreement for the home and the signature on the standard form rental agreement was not hers. Additionally, Slaughter testified Michele never told her she considered herself Slaughter’s landlord. To the contrary, Slaughter had told Michele the home was Slaughter’s and had attempted to talk to her about the issue, but Michele refused. With respect to the loan payments, including the impound for property taxes, Slaughter testified Harold had made them from 1985 until four years earlier, at which time, Slaughter took over the payments. Slaughter explained she would go to a Washington Mutual Bank branch, where Slaughter also did her own banking, and the bank would take the monthly loan and tax payment out of her social security check.

Harold testified he made the loan and tax payments from approximately 1985 or 1986 through 1998 after which Slaughter began to make the payments; however, Harold had given Slaughter money for those payments. Harold estimated he had contributed approximately $150,000 toward the home considering the number of years he had made the payments directly and provided Slaughter with money, including for repairs. Harold, however, had not lived in the home since some time in the 1980’s.

After Slaughter and Harold finished presenting their case-in-chief, the trial court granted Michele’s motion for nonsuit with respect to Harold’s claims. On September 29, 2006 the court rendered judgment in favor of Slaughter, finding she had obtained title to the home by adverse possession: “[Slaughter’s] open and notorious occupation of the property has been for well over the statutory requirement of five years. Slaughter testified that she has lived at the premises for over forty years, or, in the words of various family witnesses, for their lifetimes, decades long. Her open and notorious occupation of the property has been well-known to [Michele]. The possession is hostile to [Michele]. Even though [Michele] claims to have made payments for maintenance and improvements, her evidence is not compelling. It appears that plaintiff Slaughter has shouldered these costs. [¶] [Michele] fails to demonstrate payment of taxes. [Citations.] The tax bills have been sent consistently to [Michele] at her home address. It is unclear that she has been making the mortgage payments in recent years. Plaintiff Slaughter contend[s] that she has been making the tax payments through an escrow impound account in [Michele’s] name at the Washington Mutual bank. Despite [Michele’s] contentions, there is no convincing evidence that [Michele] has paid the taxes for the past five years.”

CONTENTION

Michele contends the trial court’s decision quieting title in favor of Slaughter on a theory of adverse possession is not supported by substantial evidence.

DISCUSSION

1. Standard of Review

In reviewing a challenge to the sufficiency of evidence, our inquiry is limited to whether, on the entire record, substantial evidence supports the judgment. (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.) We must view the record in the light most favorable to the prevailing party and resolve all inferences in support of the judgment. (Milton v. Perceptual Development Corp. (1997) 53 Cal.App.4th 861, 867.) We are also precluded from second-guessing the trial court’s credibility determinations. (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 334 [“‘questions as to the weight and sufficiency of the evidence, the construction to be put upon it, the inferences to be drawn therefrom, the credibility of witnesses . . . and the determination of [any] conflicts and inconsistencies in their testimony are matters for the trial court to resolve’”]; Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204 [“testimony of a witness offered in support of a judgment may not be rejected on appeal unless it is physically impossible or inherently improbable and such inherent improbability plainly appears”].)

“Substantial evidence” in this regard does not mean “any evidence.” Rather, to be “substantial,” the evidence must be “‘of ponderable legal significance, . . . reasonable in nature, credible, and of solid value.’” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873, italics omitted.) If there is substantial evidence, contradicted or uncontradicted, that will support the finding, it must be upheld regardless of whether the evidence is subject to more than one interpretation. (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571 [“‘[w]hen two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court’”]; Von Beltz v. Stuntman, Inc. (1989) 207 Cal.App.3d 1467, 1481 [reviewing court may not reweigh the evidence].)

2. Sufficient Evidence Supports the Trial Court’s Ruling Slaughter Obtained Title to the Home by Adverse Possession

To establish adverse possession a party has the burden to show his or her use of the property: (1) was open and notorious constituting reasonable notice to the true owner; (2) was hostile to the true owner; (3) occurred for a continuous and uninterrupted period of at least five years; (4) was under a claim of right or color of title; and (5) included payment of property taxes on the disputed parcel for the statutory five-year period. (Gilardi v. Hallam (1981) 30 Cal.3d 317, 321; Preciado v. Wilde (2006) 139 Cal.App.4th 321, 325; see Code Civ. Proc., § 325.)

Code of Civil Procedure section 325 states that “in no case shall adverse possession be considered established under the provision of any section or sections of this Code, unless it shall be shown that the land has been occupied and claimed for the period of five years continuously, and the party or persons, their predecessors and grantors, have paid all the taxes, State, county, or municipal, which have been levied and assessed upon such land.”

Michele contends there is insufficient evidence that Slaughter occupied the home as an owner, not as Michele’s tenant, or that Slaughter paid all of the taxes. Substantial evidence, however, supports the judgment. This case ultimately reduced itself to a determination whether Slaughter and Harold, on one hand, or Michele, on the other hand, was more credible. The court clearly concluded Michele was not credible, stating, “[Michele’s] offer of the March 1, 1990 Monthly Rental Agreement between [Michele] and [Slaughter] and putative offer of (contested) rent receipts fatally undermined her credibility. [¶] Plaintiff Slaughter argues that the Monthly Rental Agreement is bogus. Plaintiff Slaughter denied that she ever signed the rental agreement or the signature on the instrument is hers. Second, the copyright (i.e., 1993) on this 1990 rental agreement undermines [Michele’s] contention that she was the landlord and [Slaughter] tenant of the property in 1990. The Court agrees. Third, there is no testimony that the monthly rental amount of $950 (a truly substantial sum in 1990) was ever agreed, constituted a reasonable amount for the premises, or was collected in that [or] any other amount. The several Xerox copies of the alleged rental receipts that [Michele] attempted to offer into evidence were rejected for admissibility based on their unreliability as evidence. The plausibility of this evidence is belied on its face and cannot be accepted. See Evidence Code section 312(b) (‘[In a bench trial, the court] is to determine the effect and value of the evidence addressed to it, including the credibility of witnesses and hearsay statements.’). See also, CACI Civil Jury Instruction 107 (which reads, in part, ‘. . . if you decide that a witness has testified untruthfully about something important, you may choose not to believe anything the witness said.’).” (Italics added.) Even were we permitted to reevaluate the trial court’s credibility determinations, we would not do so on this record.

Michele argues, even if Slaughter’s testimony is credited over hers, there is insufficient evidence Slaughter paid property taxes for the five-year period required to acquire title by adverse possession. In particular, Michele asserts Slaughter acknowledged she only made the loan and tax payments from 2003 to 2005 (or 2006), and Harold testified he stopped making payments in 1998.

The record, read most favorably to Slaughter, does not support Michele’s argument. Slaughter initially testified “my son [Harold] paid it from ’85 until 4 years ago, and then I took it over. I’ve been paying it for the last 4 years.” When asked “what year specifically are you referring to,” the reporter’s transcript reflects Slaughter, whose hearing is impaired, responded “2006, 2003.” Although concededly a somewhat confusing response, we do not believe it can be fairly read, as Michele contends, that Slaughter admitted she had only made the loan and tax payments from 2003 through 2005 (or 2006). Rather, considering together Slaughter’s and Harold’s testimony, and drawing all reasonable inferences in support of the judgment, it appears Harold made the loan and tax payments through 1998; during the next several years, Slaughter made the payments with money provided to her by her son; and then, for the most recent four-year period, Slaughter made the loan and tax payments herself from her Social Security benefits. Whatever confusion may have ensued from the dates Slaughter provided -- either Slaughter’s error or the court reporter’s in transcribing her testimony -- it does not negate this testimony. Certainly Slaughter’s and Harold’s combined testimony, credited by the trial court, established that they, not Michele, made the payments for more than the minimum five-year period.

It is irrelevant the mortgage account was in Michele’s name and the taxes were paid out of that account. What is relevant is the source of the funds used to pay the taxes. (See Williams v. Stillwell (1933) 217 Cal. 487, 492 [although adverse claimant’s mother and sister may have paid property taxes “in the first instance to the county tax collector, . . . if he thereafter reimbursed them for such payments either in money or in labor, this was in effect a payment by him”].)

In a related, and equally flawed, argument Michele insists it was proved at trial that she, not Slaughter, made at least the September 2004 loan and tax payment, thereby interrupting the five-year payment period required to establish adverse possession. In support of this contention she cites “Trial Exhibit 120, Washington Mutual Statement and Check Receipt.” The check receipt (exhibit 120-2), however, was not admitted into evidence because the court found, “to the extent it’s legible, it doesn’t establish that” Michele had signed and written a check to Washington Mutual for a loan payment. Michele also contends she proved that she made payments from 2000 to 2003 and produced receipts, citing “Trial Exhibit 123 - Receipt Payments collectively attached).” There was no exhibit 123 marked for identification at trial, let alone admitted into evidence, nor are there any receipts collectively attached. Justifiably discounting Michele’s testimony as lacking credibility, Slaughter and Harold’s testimony was sufficient to support the judgment.

Michele contends Slaughter failed to address a number of arguments she raised in her opening brief, including that an oral contract to transfer real property is unenforceable because it fails to satisfy the statute of frauds and Slaughter’s claim is barred by the statute of limitations and the doctrine of unclean hands. Even if they were relevant to Slaughter’s claim for title acquired by adverse possession, which we doubt, Michele has forfeited these arguments because they were not made in the trial court. (See Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1433 [if appellant wishes to argue point on appeal, it must first make record by raising point in trial court].)

DISPOSITION

The judgment is affirmed. Estella Slaughter is to recover her costs on appeal.

We concur: WOODS, J., ZELON, J.


Summaries of

Slaughter v. Whiting

California Court of Appeals, Second District, Seventh Division
Sep 16, 2008
No. B195722 (Cal. Ct. App. Sep. 16, 2008)
Case details for

Slaughter v. Whiting

Case Details

Full title:ESTELLA SLAUGHTER, Plaintiff and Respondent, v. MICHELE WHITING, Defendant…

Court:California Court of Appeals, Second District, Seventh Division

Date published: Sep 16, 2008

Citations

No. B195722 (Cal. Ct. App. Sep. 16, 2008)