Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. GIC879312 Michael M. Anello, Judge.
O'ROURKE, J.
Ted Smith and Alison Pivonka, husband and wife (the Smiths) sued their neighbors Richard and Laura DiPietro, also a married couple, (the DiPietros) alleging causes of action for specific performance, breach of contract, declaratory relief, trespass, abatement of nuisance, recovery of possession of real property and negligence, following the DiPietros' noncompliance with a memorandum of understanding (MOU) signed by Ted Smith and Richard DiPietro, but not by their wives. In the MOU, Mr. DiPietro proposed a lot line adjustment and a view easement grant to the Smiths.
The DiPietros moved for summary adjudication of the causes of action for specific performance, breach of contract and declaratory relief, contending that they had no duty to perform under the MOU because it violated the statute of frauds (Civ. Code, §§ 1624, 1091) and Family Code section 1102, subdivision (a). The trial court granted the motion on those grounds, ruling that under Code of Civil Procedure section 437c, subdivision (o)(2), the DiPietros had established as an affirmative defense that they had no duty to comply with the transfer of real property contemplated in the MOU because Mrs. DiPietro did not sign the MOU. The parties subsequently settled the remaining causes of action.
All further statutory references are to the Family Code unless otherwise stated.
On appeal, the Smiths contend the court erred in summarily adjudicating the causes of action because they had presented triable issues of fact showing that the DiPietros, having committed fraud, were equitably estopped from relying on the statute of frauds or section 1102. We affirm the judgment.
FACTUAL BACKGROUND
In 2003, the Smiths bought real property located at 8043 Run of the Knolls, in San Diego, California. That same year, the DiPietros bought the adjacent real property at 8049 Run of the Knolls. The DiPietros constructed improvements, including landscaping and an entertainment island, that affected both properties. In 2005, Richard DiPietro and Ted Smith - but not their wives - initialed a proposed lot line adjustment agreement in May, and signed the MOU approximately three months later. The MOU stated in relevant part that a survey had concluded the DiPietros' fence and landscape encroached on the Smiths' property; therefore, to avoid removing the improvements from the affected area, Mr. DiPietro proposed an "equal exchange of DiPietro land fronting on the golf course in exchange for the aforementioned Smith property" in a recorded lot line adjustment. Further, Mr. DiPietro proposed to grant Mr. Smith a recorded view easement over his property, such that no structure or vegetation taller than two feet would be maintained.
DISCUSSION
The Smiths contend that in opposing summary adjudication, they had presented sufficient evidence of fraud and equitable estoppel to defeat the DiPietros' reliance on section 1102.
Standard of Review
A defendant moving for summary judgment or summary adjudication must show either (1) one or more elements of the plaintiff's cause of action cannot be established or (2) there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subds. (o), (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 (Aguilar); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) When the motion is based on the assertion of an affirmative defense, the defendant has the initial burden to demonstrate that undisputed facts support each element of the affirmative defense. (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289.) "The defendant must demonstrate that under no hypothesis is there a material factual issue requiring trial. [Citation.] If the defendant does not meet this burden, the motion must be denied. Only if the defendant meets this burden does 'the burden shift[ ] to plaintiff to show an issue of fact concerning at least one element of the defense.' " (Id. at pp. 289-290.)
The summary judgment procedure determines whether there is evidence requiring the fact-weighing procedure of a trial. (E.g., Guz, supra, 24 Cal.4th at p. 334.) Thus, " 'the trial court in ruling on a motion for summary judgment is merely to determine whether such issues of fact exist, and not to decide the merits of the issues themselves.' [Citation.] The trial judge determines whether triable issues of fact exist by reviewing the affidavits and evidence before him or her and the reasonable inferences which may be drawn from those facts." (Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127, 131.) A material issue of fact may not be resolved based on inferences if contradicted by other inferences or evidence. (Aguilar, supra, 25 Cal.4th at p. 856.)
On appeal, we independently review the parties' supporting and opposing papers and apply the same standard as the trial court to determine whether there exists a triable issue of material fact. (Guz, supra, 24 Cal.4th at p. 334; Southern Cal. Rapid Transit Dist. v. Superior Court (1994) 30 Cal.App.4th 713, 723.) We liberally construe the evidence in support of the party opposing summary judgment (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142), and assess whether the evidence would, if credited, permit the trier of fact to find in favor of the party opposing summary judgment under the applicable legal standards. (Cf. Aguilar, supra, 25 Cal.4th at p. 850.) We do not weigh the evidence and inferences, but merely determine whether a reasonable trier of fact could find in favor of the party opposing the motion, and we must deny the motion when there is some evidence that, if believed, would support judgment in favor of the nonmoving party. (Alexander v. Codemasters Group, Limited (2002) 104 Cal.App.4th 129, 139.) We must uphold the judgment if it is correct on any ground, regardless of the reasons the trial court gave. (Continental Ins. Co. v. Columbus Line, Inc. (2003) 107 Cal.App.4th 1190, 1196.)
Applicable Law
Section 1102 states: "[E]ither spouse has the management and control of the community real property... but both spouses, either personally or by a duly authorized agent, must join in executing any instrument by which that community real property or any interest therein is leased for a longer period than one year, or is sold, conveyed or encumbered." (In re Marriage of Brooks & Robinson (2008) 169 Cal.App.4th 176, 183 [holding that under section 1102, "[t]itle to community real property cannot be conveyed by one spouse to a third party unless the other spouse joins in the execution of the deed."].)
In Andrade Development Co. v. Martin (1982) 138 Cal.App.3d 330, 334-336, the husband alone signed escrow instructions to sell community real property. The buyer was aware the property was owned by both spouses. The husband then refused to go through with the sale and the buyer sued for specific performance or, in the alternative, damages for breach of contract. The appellate court held that under the predecessor statute to section 1102, damages and specific performance were barred. The Andrade court stated: "We believe the nonconsenting spouse should be fully protected in such efforts to dispose of community real property and hold the contract is subject to a timely action during the marriage to avoid it, a corollary of which is no specific performance or damages are recoverable as to any part of the effort to dispose of the community real property. Any effort to dispose of this property will adversely affect the spouses' interests. Disposal of community property or partition of the spouses' interests should be allowed only where the spouse consents or where a court sitting in equity can provide an equitable result as in dissolution or probate proceedings." (Andrade, supra, at p. 334; accord, Droeger v. Friedman, Sloan & Ross (1991) 54 Cal.3d 26, 46-47 [approving Andrade].)
Analysis
The DiPietros asserted in their separate statements of undisputed facts that Mrs. DiPietro did not sign either the proposed lot line adjustment or the MOU. The Smiths responded to those separate statements in identical terms: "[The Smiths] do not dispute that Mrs. DiPietro did not sign the referenced exhibit; however, [they] do dispute that Mrs. DiPietro did not grant an agency or give her husband authority to enter the agreement on her behalf, ratify the agreement or accept its benefits. They have been prevented from cross-examining [them] on these issues by their absolutist invocation of the marital privilege." Mrs. DiPietro stated in her deposition that she did not know who had drafted the MOU and she had not seen drafts of it before her husband signed it.
In opposition to the DiPietros' separate statements, the Smiths included their own undisputed material facts, including this one: "At the June 11 meeting, Mr. DiPietro told Mr. Smith that he was concerned that if Ms. Pivonka, a litigation attorney, became involved in the negotiation it would not be amicable, and suggested to Mr. Smith that the husbands negotiate the agreement and deal separately with getting their wives to go along with it." The citation supporting this separate statement was Ted Smith's declaration, stating: "Mr. DiPietro proposed... that we come to an arrangement as 'heads of our households' that would resolve the problem... and deal separately with getting our wives' consent."
Even if we liberally construe the Smiths' evidence opposing summary adjudication, we conclude that they have not overcome the section 1102 bar to enforcement of the MOU. The Smiths claim that Mr. DiPietro acted as his wife's agent, yet Mr. Smith's declaration specifically states that Mr. DiPietro would "deal separately" with getting Mrs. DiPietro's consent, flatly contradicting the claim that Mr. DiPietro signed as his wife's agent, or that she authorized the MOU. The DiPietros met their burden of showing the existence of a complete defense to the causes of action; therefore, the burden shifted to the Smiths to demonstrate the existence of triable issues of material fact. (Code Civ. Proc., § 437c, subd. (p)(2).)
The Smiths rely on In re Nelson (1985) 761 F.2d 1320, and argue that estoppel applies here because Mrs. DiPietro admitted in her deposition that she knew that: (1) "there was an allegation of trespass;" (2) "her husband was dealing with the Smiths directly, consistent with their division of responsibility and her husband's expertise;" and (3) the fence and certain landscaping had been relocated. Moreover, Mrs. DiPietro received the benefit of the agreement "by uninterrupted and exclusive use of a portion of the Smiths' lot for her patio, fence, fire pit and outdoor kitchen as well as a larger grass play area."
The Smiths' reliance on In re Nelson, supra, 761 F.2d 1320 is misplaced. In that case, the husband obtained two loans secured by the community's real property. The husband signed both deeds of trust, but his wife did not sign them; instead, someone forged her signature on them. (Id. at p. 1321.) The court applied the doctrine of estoppel and found that the husband acted as the wife's agent and the wife knew that her husband had signed her name to loan documents and had the authority to do so. Additionally, the wife permitted her husband to handle her personal finances, including balancing her bank accounts and complete and sign her federal income tax returns. Therefore, the husband reasonably could have believed that he had authority to encumber the wife's interest in the subject property. (Id., at pp. 1322-1323.)
By contrast, here, the Smiths did not present evidence to show that Mrs. DiPietro engaged in any conduct requiring her to be equitably estopped from relying on section 1102. To prove that the doctrine of estoppel applied, the Smiths were required to show that Mrs. DiPietro was informed of the execution of the MOU and proposed lot line adjustment conveying title to or an interest in the community property and she consented to or acquiesced in its execution. (Mark v. Title Guarantee & Trust Co. (1932) 122 Cal.App. 301, 309.) Even assuming that Mrs. DiPietro knew the information the Smiths claim that she knew, and that she derived the asserted benefit from the agreement, such evidence does not show that she knew about, or consented to, the easement grant or the property conveyance as contemplated by the lot line agreement or the MOU. It certainly does not prove that Mr. DiPietro was his wife's agent. We conclude that the Smiths did not meet their burden on summary adjudication.
As in Nelson, when courts have found estoppel or fraud under section 1102's predecessor statutes, the facts have differed markedly from those presented here. In Bush v. Rogers (1941) 42 Cal.App.2d 477, the court concluded the wife was estopped from relying on the absence of her signature on a lease because she was present during a conversation between her husband and defendant regarding the terms of the lease approximately ten days before execution of the lease; she verified the complaint in the quiet title action, and made no claim of community property ownership, and presented no trial evidence that she ever denied giving her consent to the execution of the lease. (Id., at pp. 480-481.) In MacKay v. Daursmont (1941) 46 Cal.App.2d 21, the court declined to enforce the predecessor statute in that case because it concluded the wife did not have clean hands. Although she alleged in the complaint that a conveyance was made without her knowledge or consent, the undisputed evidence indicated the contrary. (Id., at p. 26.) In Vierra v. Pereira (1939) 12 Cal.2d 629 the court concluded that the defendant husband was the agent and servant of his wife and acted with her knowledge, consent, and approval, and that defendants were estopped to deny the execution and existence of the lease. (Id., at p. 632.)
The Smiths, in opposing summary adjudication based on the statute of frauds, also claim that Mr. DiPietro had fraudulent intent and assertedly compromised a witness. Specifically, the Smiths contend that "[i]n October 2004, the DiPietros retained [an engineer] to process the request for a lot-line adjustment with the City of San Diego. The Smiths provided all the documents asked for, but the process stalled for years - from when [Mr.] DiPietro retained [the engineer] in 2004 until June 2006, when [the engineer] first submitted documents seeking the parties' approval to move forward with the City." Moreover, Mr. DiPietro assertedly paid the engineer in exchange for his signing a letter stating Mr. DiPietro was not responsible for the delay. The Smiths assert in their opening brief: "Richard DiPietro's witness tampering deliberately made Johnson's testimony entirely unavailable to the Smiths." This evidence is not relevant to the section 1102 defense because it does not evince fraud by Mrs. DiPietro, the non-signatory of the MOU and the proposed lot line adjustment.
In arguing against the application of the statute of frauds, the Smiths referred to evidence that they asserted showed partial performance, and we assume they also rely on the same evidence to defeat the application of section 1102. Specifically, the evidence was: (1) the DiPietros paid a deposit to the City of San Diego for plan review and approval of the lot line adjustment; (2) the DiPietros relocated a fence and a myrtle tree to a place "outside what Mr. DiPietro himself called the Smiths' 'view corridor' as the agreement required;" (3) the Smiths allowed the DiPietros continued exclusive use of the portion of the Smiths' property that the DiPietros' fence enclosed; (4) the Smiths retained counsel and "the DiPietros deposited a retainer with that lawyer based on her stated budget to review documents and draft the easement that memorialized the engineering drawings that showed the location of the relocated rear fence;" and (5) for several years the Smiths refrained from initiating a lawsuit because they believed the DiPietros were performing on the agreement. Again, we conclude that this evidence fails to show Mrs. DiPietro's participation in the decision-making, or that she knew about the MOU or the lot line adjustment; agreed to them, or allowed her husband to act as her agent. Therefore, we conclude that the Smiths did not meet their burden on summary adjudication and the trial court did not err in summarily adjudicating the Smiths' claims.
Having concluded that summary adjudication was properly granted on the ground the MOU was unenforceable under section 1102, we need not address whether summary adjudication was appropriate on ground that the MOU also violated the statute of frauds. (See Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 631, fn. 6 [where reviewing court determines summary adjudication was properly granted on one ground, it need not decide whether summary adjudication order was proper on an additional ground urged by respondent].) Accordingly, we do not discuss a case relevant to the statute of frauds issue, Obanion v. Paradiso (1964) 61 Cal.2d 559, on which the trial court relied.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., HALLER, J.