Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. GIN047160, Lisa C. Schall, Judge.
McCONNELL, P. J.
Defendant Susanne E. Adams appeals an interlocutory judgment of partition, in which the trial court ordered a condominium sold and the net proceeds of sale divided equally between her and plaintiff Sylvia L. Spiegel. It is undisputed that the parties own the property equally as joint tenants, but Adams contends the court erred by finding she is not entitled to contribution from Spiegel for the disproportionate share of mortgage payments and other expenses Adams covered. Adams also contends the court erred by rejecting her affirmative defense of adverse possession. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Spiegel and Adams met in 1988. They eventually moved into a single-family home they purchased as joint tenants and "lived like a married couple would live." In December 1992 they purchased a condominium in Oceanside, California, as an investment. Under the grant deed, they hold title to the condominium as joint tenants. Each party contributed $3,000 for the down payment. They took out a mortgage for the balance of the purchase price of between $70,000 and $79,000, and the monthly payments were between $600 and $650. The condominium sat empty for the first year, after which it was put on the rental market.
In 1993 the parties' relationship soured and Spiegel moved back to her home in Long Beach. Spiegel made partial contributions toward expenses in 1993 and 1994, but in late 1995 she ceased making any contribution. Spiegel blamed Adams for not sending her any information and "treat[ing] me like I didn't exist." Further, Spiegel said she had no money for contributions.
In October 1995 Spiegel left a message on Adams's answering machine that stated she was at the condominium to pick up her refrigerator, and complaining that Adams had changed the locks on the condominium without providing her a key. Spiegel stated, "I did have a plan to get me out of the condo but you're making it very hard for me to be nice about it. What I was going to do was let you just go ahead and have it, and assume the loan if that's possible and just sign it over to you. I don't want a part of it, I just need my refrigerator."
Adams believed the call meant Spiegel would relinquish her interest in the property in exchange for the refrigerator. She went to the condominium with a quitclaim deed for Spiegel's signature. She allowed Spiegel to take her refrigerator, but Spiegel refused to sign the quitclaim deed. She told Adams she would sign it later and send it back, but she reneged.
Presumably, Spiegel would have remained liable to the lender had she signed a quitclaim deed.
In March 1996 an attorney for Adams sent Spiegel a letter demanding that she sign a quitclaim deed. Spiegel refused. In 1997 Spiegel was involved in a bankruptcy proceeding, and at that time Adams again asked her to sign a quitclaim deed. She again refused. After 1997 the parties had no contact for many years. Adams sought no further legal advice on how to protect her interests in the property.
In July 2005 Spiegel sent Adams a letter that stated she believed it was time they settled their financial issues. Spiegel got no response and consulted an attorney. In September 2005 Spiegel commenced this partition action. Prior to the lawsuit, Adams made no demand for contribution from Spiegel.
In her answer, Adams alleged an affirmative defense of adverse possession. Adams also filed a first amended cross-complaint (hereafter cross-complaint) against Spiegel for dissolution of partnership, accounting, breach of the implied duty of good faith and fair dealing and related counts. The cross-complaint alleged Adams and Spiegel had orally agreed to form a partnership to "jointly and equally" pay property expenses and share profits, but Adams was entitled to sole ownership since Spiegel had relinquished control of the property to her and had stopped making contributions. Alternatively, the cross-complaint prayed for reimbursement of one-half of the payments she made over the years to maintain the property.
A bench trial was held in April 2008. Adams argued she was entitled to sole ownership of the property on the ground of adverse possession. Spiegel noted that Adams's original cross-complaint included a cause of action for adverse possession, but the court had sustained a demurrer to it with leave to amend and the first amended cross-complaint included no adverse possession count. The court ruled that Adams could not obtain any affirmative relief under an adverse possession theory, but she could raise the issue as an affirmative defense to the partition action.
As to Adams's claim for contribution, the court explained that in California joint tenants are not entitled to contribution absent an agreement to the contrary. The court decided to first take evidence pertaining to whether the parties had a true joint tenancy, rather than a tenancy in common under which contribution is allowed.
Spiegel testified she and Adams discussed how to take title to the property, and "about protecting each other in case something drastically would happen to one of us." They "wanted to make sure that the other person would get the property without family intervening," and thus they decided to take title as joint tenants.
The parties had also purchased a time share as joint tenants.
Further, Spiegel testified the parties had no written agreement regarding payment of condominium expenses, but while they were together they paid expenses from a joint account they both funded. They did not discuss what would happen to the condominium if it was sold, and when they split up they did not discuss the condominium at all.
Adams testified she and Spiegel "agreed that we would share in the expenses equally." Adams said the parties agreed "we would be business partners in this property that was an investment... and that we would remain partners in this property as long as we both did what we said we were going to do." Both parties used the word "partner" to refer to their business relationship. Their agreement was not reduced to writing. According to Adams, the parties did not discuss holding title as joint tenants. Adams said she "didn't recognize the relevance of joint tenancy and tenants in common," or that a joint tenancy "carries with it a right of survivorship."
The court determined the parties intended a right of survivorship and had "a true joint tenancy" not subject to rules of accounting or contribution. The court found there was not clear and convincing proof that the parties' actual title was other than that stated in the grant deed. (Evid. Code, § 662.) There was no evidence of any agreement between the parties on how they would handle disproportionate contributions on the sale of the property.
The court denied Adams any affirmative relief on her cross-complaint because it was time-barred. It was based on Spiegel's alleged breach of their agreement to share condominium expenses, and the breach occurred in 1995 when she quit making any contributions, or at the latest in 1997 during her bankruptcy proceeding when she refused to quitclaim the property to Adams. The court also rejected Adams's affirmative defense of adverse possession as there was insufficient evidence Spiegel was on notice. The court granted an interlocutory judgment of partition, with the parties being equally responsible for expenses from the date of judgment, and equally entitled to the net proceeds of sale.
DISCUSSION
I
Joint Tenancy/Contribution
"A joint tenancy in real property consists of an estate owned jointly in undivided equal shares by two or more persons. The ownership interest of joint tenants is regarded by law as constituting a fictitious unity. Each joint tenant is vested with title to an undivided equal share of the joint tenancy property, but this interest, being undivided, runs to the entire property." (5 Miller & Starr, Cal. Real Estate (3d ed. 2006), § 12:22 (hereafter Miller & Starr); Civ. Code, § 683, subd. (a).)
"The distinguishing feature of joint tenancy is the right of survivorship. The title of each tenant extends to the whole estate. Hence, when one tenant dies, the entire estate survives to the others, to the exclusion of the heirs of the decedent." (12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 34, p. 86.) "Although a joint tenancy deed is not conclusive as to the character of real property, it creates a rebuttable presumption that it is held in joint tenancy. The presumption created by the deed cannot be overcome by testimony of the hidden intentions of one of the parties, but only by evidence tending to prove a common understanding or an agreement that the character of the property was to be other than joint tenancy." (Machado v. Machado (1962) 58 Cal.2d 501, 506; Evid. Code, § 662.)
Evidence Code section 662 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."
Adams does not challenge the court's factual finding that she and Spiegel owned the condominium as true joint tenants. Adams now takes the position "there was never any dispute regarding title." She contends the court nonetheless erred by determining she is not entitled to contribution for her disproportionate share of payments to maintain the property.
The court relied on Milian v. De Leon (1986) 181 Cal.App.3d 1185 (Milian). In Milian, a couple who were romantically involved purchased a home as joint tenants. (Id. at p. 1190.) Milian contributed more to the down payment than his girlfriend, Sanchez, and he covered the mortgage payments in exchange for her agreement to make payments on his car. He also paid the majority of property tax and insurance payments on the property. She paid for improvements to the property. (Ibid.) When they stopped dating, a partition action was commenced. The trial court found the parties had a true joint tenancy, and it initially found they were each entitled to credits of one-half the amounts they spent on maintaining and improving the property, resulting in a net credit to Milian. (Id. at p. 1191.) The court changed its mind, however, and in its interlocutory judgment it ordered that the proceeds of sale be divided equally between the parties without any accounting or reimbursement. The court found the parties had "an implied contract... to treat their property equally and to divide the same equally." (Id. at p. 1192.) The court ordered the property sold and the net proceeds divided equally between the parties. (Id. at pp. 1192-1193.)
The Court of Appeal affirmed the ruling, explaining that "even absent the agreement found by the court, insofar as any disparity in the contributions of the parties to the initial acquisition of the property is concerned, the determination there was a true joint tenancy supports the [trial] court's determination that there need be no accounting or contribution." (Milian, supra,181 Cal.App.3d at pp. 1194-1195.) The court rejected the notion that cases pertaining to property ownership by tenants in common, in which accounting and contribution principles do apply, are applicable to a joint tenancy. (Ibid.) The court noted it had not "discovered a single case in which a true joint tenancy was found and yet an accounting and contribution was ordered because of disproportionate contributions by the parties to the original purchase price." (Id. at p. 1195.) The court added: "Though the discovery gives us some discomfort in terms of legal symmetry, it appears to us that once the court in a partition action has determined that a true joint tenancy exists, it may not order reimbursement or contribution on account of differences in the amounts the parties have paid toward the initial acquisition of the property. Of course, if one joint tenant has advanced funds on behalf of the other and there is an agreement between them for reimbursement in the event of sale of the property, that agreement can be enforced by the court. [Citation.] However, by definition joint tenancy ownership means equal ownership [citation], and in the absence of an agreement for reimbursement we are unaware of any authority which authorizes reimbursement on account of unequal contribution to the down payment." (Ibid., italics added, fns. omitted.)
Adams does not dispute the court's factual finding that she and Spiegel had no agreement for reimbursement in the event of sale. Relying on Willmon v. Koyer (1914) 168 Cal. 369 (Willmon), Adams nonetheless asserts she has a right of contribution for disproportionate payments. She ignores, however, that in Willmon the owners were tenants in common rather than joint tenants. In a tenancy in common, there "is no right of survivorship, and the estate of each tenant in common passes to the heirs and devisees, and not to the surviving tenants in common." (5 Miller & Starr, supra,§ 12:35.) "[C]ontrary to the requirement in joint tenancy, the interests of [tenants in common] need not be equal. Each tenant in common can own an interest in the property proportionate to his or her unequal contribution to the costs of acquisition." (Ibid.) "As an incident to [a tenancy in common] relationship either cotenant has a right to demand of the other an accounting as to rents and profits of the cotenancy, which, of course, involves the right of one cotenant to have refunded to him by the other his proportion of any expenditures made for the benefit of the common property." (Willmon, supra,168 Cal. at p. 372.) Willmon is inapplicable to a joint tenancy situation, where ownership of the property is in equal shares.
In Willmon, the court held an action for contribution is subject to a two-year statute of limitations. (Willmon, supra,168 Cal. at p. 373.) Thus, even if the parties here held the property as tenants in common, Adams could have recovered only two years' worth of disproportionate contributions.
Adams's reliance on Southern Adjustment Bureau, Inc. v. Nelson (1964) 230 Cal.App.2d 539 (Nelson), and Wallace v. Daley (1990) 220 Cal.App.3d 1028 (Wallace), is misplaced for the same reason—they concern tenancies in common. (Nelson, supra, at pp. 539-540; Wallace, supra,at p. 1031.) Adams cannot reasonably single out language in opinions pertaining to "cotenants" without differentiating between the different types of cotenants. "There are several types of cotenancies in California, including joint tenancies, tenancies in common and tenancies in partnership." (5 Miller & Starr, supra, § 12:1.) "A decision is authority only for the point actually passed on by the court and directly involved in the case. General expressions in opinions that go beyond the facts of the case will not necessarily control the outcome in a subsequent suit involving different facts." (Gomes v. County of Mendocino (1995) 37 Cal.App.4th 977, 985; Chevron U.S.A., Inc. v. Workers' Comp. Appeals Bd. (1999) 19 Cal.4th 1182, 1195.)
Additionally, Adams cursorily states Milian, supra, 181 Cal.App.3d 1185, is inapplicable because it only applies to disparities in the owners' down payment on real estate. Adams, however, cites no authority for the proposition that joint tenants are entitled to contribution for disproportionate mortgage payments, taxes or other maintenance expenses. Further, Adams has not given any reason why the law of contribution should apply differently to disparities in down payments and to disparities in other expenses such as mortgage payments. "[P]arties are required to include argument and citation to authority in their briefs, and the absence of these necessary elements allows this court to treat appellant's... issue as waived." (Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448.) Adams misleadingly cites language in Milian pertaining to rights of contribution between "cotenant[s]" without acknowledging the court went on to explain the language does not apply to joint tenancies. (Milian, supra, at p. 1194.) Again, Milian states, "the determination there was a true joint tenancy supports the court's determination that there need be no accounting or contribution." (Id. at p. 1195.)
Code of Civil Procedure section 872.140 provides that in a partition action the court "may, in all cases, order allowance, accounting, contribution, or other compensatory adjustment among the parties according to the principles of equity." (Italics added.) This provision was cited in Wallace, supra, 220 Cal.App.3d 1028, 1036, which, as discussed above, pertained to tenants in common rather than joint tenants; see also In re Marriage of Leversee (1984) 156 Cal.App.3d 891, 896-897 [in dicta court suggested statute applied to joint tenancy property purchased before marriage].) Under the statute, "[c]redits include expenditures in excess of the co-owner's fractional share for necessary repairs, improvements that enhance the value of the property, taxes, payments or principal and interest on mortgages and other liens, insurance for the common benefit, and protection and preservation of title." (5 Miller & Starr, supra,§ 13, italics added.) As joint tenants own equal shares of the property, it appears Code of Civil Procedure section 872.140 does not give the court discretion to order an accounting and contribution in a joint tenancy case. Adams does not cite Code of Civil Procedure section 872.140.
As a matter of law, the court properly ordered partition and denied Adams's request for contribution. The outcome is certainly discomfiting, and we do not condone Spiegel's conduct. Even her counsel acknowledged the "inherent unfairness" since she "failed to make contributions." Unfortunately, however, Adams sat on her rights for many years after learning Spiegel no longer intended to share the burdens of property ownership.
II
Adverse Possession
Adams contends partition is improper because she established the elements of her adverse possession affirmative defense. She does not explain how defeating the partition action would aid her. She concedes she is not entitled to any affirmative relief on an adverse possession theory because her first amended cross-complaint alleged no such claim. In other words, she cannot establish sole ownership of the condominium, and is thus not entitled to a quiet title order. Since she cannot establish sole ownership, we question why she would not favor severing the joint tenancy since Spiegel is not contributing to expenses. A partition action is the procedure for terminating a joint tenancy when, as here, the parties are at odds. (5 Miller & Starr, supra,§§ 12:19, 12:28, 12:30; Code Civ. Proc., § 872.610.) At least under the interlocutory judgment, Spiegel is required to pay for one-half of the expenses pending sale of the property. Further, Adams cites no authority suggesting adverse possession is even a proper defense to a partition action.
In any event, we have no quarrel with the court's ruling. "[W]here a trial court's factual finding is challenged on the ground there is no substantial evidence to sustain it, the power of the reviewing court begins and ends with the determination as to whether, on the whole record, there is substantial evidence, contradicted or uncontradicted, that will support the trial court's determination. [Citation.] [¶] The appellate court views the evidence in the light most favorable to the respondents [citation], resolves all evidentiary conflicts in favor of the prevailing party and indulges all reasonable inferences possible to uphold the trial court's findings [citation]." (San Diego Metropolitan Transit Development Bd. v. Handlery Hotel, Inc. (1999) 73 Cal.App.4th 517, 528.)
Generally, the elements of adverse possession are: "(1) Possession must be by actual occupation under such circumstances as to constitute reasonable notice to the owner. [Citations.] (2) Possession must be hostile to the owner's title. [Citations.] (3) The holder must claim the property as his own, either under color of title, or claim of right. [Citations.] (4) Possession must be continuous and uninterrupted for five years. [Citations.] (5) The possessor must pay all of the taxes levied and assessed upon the property during the period." (West v. Evans (1946) 29 Cal.2d 414, 417.)
However, "[w]here, as here, a claim of ownership by adverse possession is asserted against a cotenant additional principles become operative. It is settled law that the exclusive occupancy of jointly owned premises by a cotenant is deemed permissive and does not become adverse until the tenant out of possession has had either actual or constructive notice that the possession of the cotenant is hostile to him [or her]." (Weller v. Chavarria (1965) 233 Cal.App.2d 234, 242.) " 'A cotenant out of possession is entitled to assume that the permissive possession of his cotenant continues to be amicable until he [or she] is charged with some form of notice that such possession has become hostile.' " (Id. at p. 243.)
In rejecting the adverse possession defense, the court explained: "[T]he difficulty with adverse possession, it has to be open and notorious. It has to be in such a fashion to put the other side on notice that they have no claim to the property.... [¶] Well, certainly up through and including '97, that's hardly an argument that can be made. And the reason I pick that time period is [Adams] continued to solicit, albeit it's been sporadic, [Spiegel's] cooperation to relinquish title. That hardly demonstrates [Adams's] belief that [she] maintained an open, notorious termination of her right to possession or ownership of the property." The court also explained that the requisite five-year period did not begin to run after 1997, because Spiegel "is no longer on the scene. She's living up in the Long Beach area. And [Adams] had admitted in testimony after the bankruptcy, [she] couldn't find or didn't know how to find her." Adams had no further contact with Spiegel until 2005, shortly before this action commenced.
Adams does not challenge the court's factual findings, and we agree with the court's assessment. Further, none of the evidence Adams cites is availing. For instance, she points to an October 1993 letter she sent Spiegel, in which she advised she had changed the locks on the condominium. In the letter, however, Adams asked for Spiegel's cooperation in signing the property over to her. Further, as late as 1997 Adams continued to solicit Spiegel's cooperation. Adams also cites a 1995 letter Spiegel sent the tenant of the condominium, which she addressed to "Dear Tenant." This supposedly shows that since Spiegel was unaware of the tenant's name, Adams had rented the property without Spiegel's knowledge or permission. The mere renting of property by a managing joint tenant, however, does not constitute notice of Adams's hostile possession. The court's ruling is supported by substantial evidence.
DISPOSITION
The interlocutory judgment is affirmed. Spiegel is entitled to costs on appeal.
WE CONCUR: NARES, J., AARON, J.