Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Jacqueline M. Stern, Judge. Reversed, Super. Ct. No. GIN041169
NARES, Acting P. J.
This case involves a dispute between the owners of adjacent condominiums over the ownership of a two-car garage airspace element of the condominium project (the disputed garage). Plaintiff James I. Valentine is the owner of the condominium designated No. 2 (condominium No. 2) of a condominium project that consists of three airspace living units and four airspace two-car garages, together with appurtenant entry, patio and deck restricted common areas. Cross-complainants David R. Flowers and Patricia M. Flowers, individually and as trustees of the David R. and Patricia M. Flowers Family Trust (collectively the Flowerses), are the owners of the condominium designated No. 3 (condominium No. 3). The recorded condominium plan for the project (the condominium plan), a copy of which is attached to the judgment in this matter, labeled the four airspace garages as: "G-3," "G-2" "G-2," and "G-1." The disputed garage is labeled the "G-2" garage adjacent to the "G-3" garage on the condominium plan.
Claiming he owned both of the "G-2" garage elements of the project, including the disputed garage, Valentine brought an action against the Flowerses to quiet title to the disputed garage, obtain possession of the garage, and recover damages for the reasonable rental value of the garage during the time it was used by the Flowerses. The Flowerses cross-complained, seeking to quiet their claimed title to the disputed garage based on the theory of adverse possession.
For purposes of the bench trial, Valentine admitted that all of the requisite requirements of the Flowerses' claim of title to the disputed garage element of the project by adverse possession had been satisfied with the exception of the Code of Civil Procedure section 325 requirement that the party claiming title by adverse possession, and the claimant's predecessors in interest, paid "all the taxes, State, county, or municipal, which have been levied and assessed upon such land." The court found that "the taxes were likely paid on the disputed garage via the sales price" the Flowerses paid for condominium No. 3, and thus the Flowerses owned the disputed garage based on the legal theory of adverse possession.
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
Section 325 provides in part: " [I]n 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." (Italics added.)
Valentine appeals, contending the Flowerses did not establish title to the disputed garage by adverse possession because the evidence is insufficient to show under section 325 that they paid all taxes levied and assessed on the disputed garage and he continued to own the disputed garage as one of the two G-2 elements of condominium No. 2.
The parties stipulated in writing to the following undisputed facts. Trial testimony and other evidence supporting the judgment will be discussed in the discussion part of this opinion.
A. The Valentine Condominium
Valentine acquired title to condominium No. 2, commonly known as 6113 La Flecha Drive, in the condominium project known as Rancho Santa Fe Gardens in Rancho Santa Fe, California, by grant deed recorded on April 22, 1994, in the office of the San Diego County Recorder. That deed described condominium No. 2 to which Valentine acquired title as follows:
"PARCEL 1: [¶] AN UNDIVIDED 1/3 INTEREST IN AND TO PARCEL 1 OF PARCEL MAP NO. 7973, BEING A DIVISION OF LOT 2 OF PLAZA DE HIRE, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 7284, FILED IN THE OFFICE OF THE COUNTY RECORDER, NOVEMBER 2, 1978. [¶] EXCEPTING THEREFROM THE FOLLOWING: [¶] (A) ALL UNITS AS SHOWN UPON THE CONDOMINIUM PLAN OF RANCHO SANTA FE GA[R]DENS, RECORDED FEBRUARY 29, 1980 AS FILE NO. 80-071038 OF OFFICIAL RECORDS OF SAN DIEGO COUNTY. [¶] (B) THE EXCLUSIVE RIGHT TO POSSESSION OF ALL THOSE AREAS DESIGNATED AS DECK, ENTRYWAY AND PATIO AREAS AS SHOWN UPON THE CONDOMINIUM PLAN ABOVE REFERRED TO.
"PARCEL 2: [¶] UNIT 2 AS SHOWN UPON THE CONDOMINI[U]M PLAN ABOVE REFERRED TO.
"PARCEL 3: [¶] THE EXCLUSIVE RIGHT TO POSSESSION AND OCCUPANCY OF THOSE PORTIONS OF PARCEL 1 DESCRIBED IN PA[R]CEL 1 ABOVE, DESIGNATED AS D2, E2 AND P2 AS APPURTENANT TO PARCELS 1 AND 2 ABOVE DESCRIBED."
The Valentine condominium was assigned Assessor's Parcel No. 266-291-04-02 on the assessment rolls of the San Diego County Treasurer-Tax Collector. Valentine and his predecessors in interest paid all the state, county or municipal taxes levied and assessed on Assessor's Parcel No. 266-291-04-02. The Flowerses and their predecessors in interest paid no taxes levied and assessed on Assessor's Parcel No. 266-291-04-02.
B. The Flowerses' Condominium
The Flowerses acquired title to condominium No. 3 at Rancho Santa Fe Gardens, which is commonly known as 6117 La Flecha Drive, by grant deed recorded on March 9, 2004. That deed described the Flowers Unit as follows:
"PARCEL 1: [¶] AN UNDIVIDED 1/3 INTEREST IN AND TO PARCEL 1 OF PARCEL MAP NO. 7973, BEING A DIVISION OF LOT 2 OF PLAZA DE HIRE, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 7284, FILED IN THE OFFICE OF THE COUNTY RECORDER, NOVEMBER 2, 1978. [¶] EXCEPTING THEREFROM THE FOLLOWING: [¶] (A) ALL UNITS AS SHOWN UPON THE CONDOMINIUM PLAN OF RANCHO SANTA FE GA[R]DENS, RECORDED FEBRUARY 29, 1980 AS FILE NO. 80-071038 OF OFFICIAL RECORDS OF SAN DIEGO COUNTY. [¶] (B) THE EXCLUSIVE RIGHT TO POSSESSION OF ALL THOSE AREAS DESIGNATED AS DECK, ENTRYWAY AND PATIO AREAS AS SHOWN UPON THE CONDOMINIUM PLAN ABOVE REFERRED TO.
"PARCEL 2: [¶] UNIT 3 AS SHOWN UPON THE CONDOMINI[U]M PLAN ABOVE REFERRED TO.
"PARCEL 3: [¶] THE EXCLUSIVE RIGHT TO POSSESSION AND OCCUPANCY OF THOSE PORTIONS OF PARCEL 1 DESCRIBED IN PA[R]CEL 1 ABOVE, DESIGNATED AS D3, E3 AND P3 AS APPURTENANT TO PARCELS 1 AND 2 ABOVE DESCRIBED."
The Flowerses' condominium was assigned Assessor's Parcel No. 266-291-04-03 on the assessment rolls of the San Diego County Treasurer-Tax Collector. The Flowerses and their predecessors in interest paid all the state, county or municipal taxes levied and assessed on Assessor's Parcel No. 266-291-04-03. Valentine and his predecessors in interest paid no taxes levied and assessed on Assessor's Parcel No. 266-291-04-03.
C. The Disputed Garage
The disputed garage is the garage space labeled "G-2" on the recorded condominium plan adjacent to the garage space labeled "G-3." The disputed garage was being used by the Flowerses in June 2004 when Valentine served them with a written notice demanding they relinquish possession of the garage to him. The Flowerses continue to use the disputed garage.
STANDARD OF REVIEW
The trial court's judgment and statement of decision in this case contain both findings of fact and conclusions of law. "We review the trial court's findings of fact to determine whether they are supported by substantial evidence. [Citation.] To the extent the trial court drew conclusions of law based upon its findings of fact, we review those conclusions of law de novo. [Citation.]" (Westfour Corp. v. California First Bank (1992) 3 Cal.App.4th 1554, 1558.)
Under the substantial evidence standard of review, "we must consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the [findings]. [Citations.] [¶] It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment. Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact, which must resolve such conflicting inferences in the absence of a rule of law specifying the inference to be drawn. . . . [Citations.]" (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631, italics omitted.) To be substantial, the evidence must be "'"of ponderable legal significance,"' '"reasonable in nature, credible, and of solid value."'" (Id. at p. 631; Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1100.) "However, '[su]bstantial evidence . . . is not synonymous with "any" evidence.'" (Oregel, supra, at p. 1100, quoting Toyota Motor Sales U.S.A., Inc. v. Superior Court (1990) 220 Cal.App.3d 864, 871.) "The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record." (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 652.)
DISCUSSION
I. VALENTINE'S REQUEST FOR JUDICIAL NOTICE
By order dated November 20, 2006, this court ordered that Valentine's request for judicial notice be considered with his appeal in this matter.
Valentine has filed a motion requesting this court to take permissive judicial notice under Evidence Code section 452 of the following documents: (1) Certified copies of the San Diego County Secured Assessment Roll for condominium No. 2 and condominium No. 3 for fiscal years 1980-2003, including non-ad valorem taxes imposed on both parcels; and (2) magnified and unmagnified copies of the condominium plan admitted into evidence at trial.
Valentine requests judicial notice of the secured assessment roll documents to rebut the Flowerses' arguments on appeal that (1) "[t]here is absolutely no evidence in the record that such a phantom tax was levied on the [d]isputed [g]arage"; (2) "it was not [the Flowerses'] burden to show every conceivable tax that . . . theoretically could be assessed and then prove the non-existence of that tax"; and (3) there is substantial evidence to support the court's finding that the Flowerses paid all relevant taxes levied and assessed upon the disputed garage. As Valentine acknowledges, however, the copies of the secured assessment roll, which he asserts reflect non-ad valorem taxes imposed on both parcels, contain evidence not presented at trial and not part of the appellate record. Although Valentine claims on appeal that "[t]here was no evidence (nor could there have been) that non-ad valorem taxes 'levied and assessed upon' the disputed garage were paid by [the Flowerses],', he did not raise this theory in his trial brief and has not shown that he litigated this theory at trial. We thus deny Valentine's request for judicial notice of the secured assessment roll documents.
We also decline to take judicial notice of the magnified and unmagnified copies of the condominium plan. The copies are cumulative because legible copies of the plan, including the legend explaining the solid and dotted lines contained in the diagram of the condominium living units and garages, are part of the record on appeal in the trial exhibits, specifically Court's Exhibit No. 3. Valentine's motion requesting this court to take permissive judicial notice is denied.
II. VALENTINE'S APPEAL
As the parties acknowledge, the principal issue we must decide is whether substantial evidence supports the court's finding that the Flowerses and their predecessors in interest paid "all the taxes, State, county, or municipal, which have been levied and assessed" on the disputed garage within the meaning of section 325.
In support of his claim that the evidence is insufficient to show under section 325 that the Flowerses paid all taxes levied and assessed upon the disputed garage, Valentine contends that (1) as shown by the parties'stipulation at trial, he and the Flowerses paid only the taxes levied and assessed upon the properties described in their respective deeds and on the respective tax assessment rolls; (2) the condominium plan, which was incorporated in the parties' respective deeds, unambiguously established both garages designated "G-2" were part of condominium No. 2, and thus Valentine, not the Flowerses, paid the taxes levied and assessed upon the disputed garage; (3) there was no evidence of taxes levied and assessed separately on the disputed garage, and no evidence that taxes levied and assessed upon the disputed garage were "based on value"; and (4) "[t]here was no evidence (nor could there have been) that any of the taxes paid by [the Flowerses] were, within the meaning of section 325, 'levied and assessed upon' (imposed upon, enforceable against) the disputed garage, which is within the description of [Valentine's] deed and assessor's parcel, and not that of [the Flowers]."
A. Applicable Legal Principles
For purposes of this case, a condominium is a division of real property composed of an undivided interest in common in a portion of real property together with a separate interest in space (a unit) and a separate interest in a portion of the common area (exclusive use common area) the boundaries of which are described on a recorded condominium plan. (Civ. Code, § 1351, subds. (b), (e), (f), (i) & (l).)
The Rancho Santa Fe Gardens condominium project in which Valentine and the Flowerses own condominiums consist of three condominiums, each of which is composed of an undivided one-third interest in Lot 2 of Map No. 7284 (excepting all units and the right to use the exclusive use areas) together with a numbered unit (living space and garage space) and the exclusive right to use the exclusive use areas labeled as a patio, entry and deck with the same number as the unit, all as described on the recorded condominium plan for the project. Therefore, condominium No. 2 owned by Valentine includes the living area airspace labeled "2" and the garage airspaces (including the disputed garage) labeled G-2 on the condominium plan. The suggestion in the trial court's statement of decision that the disputed garage was not part of condominium No. 2 is incorrect because the condominium plan and deed to Valentine describes the disputed garage as part of condominium No. 2, regardless of any confusion of the condominium owners. Furthermore, the finding of the trial court that the Flowerses obtained ownership of the disputed garage by adverse possession necessarily means the disputed garage was owned by someone other than the Flowerses, regardless of whether the condominium owners thought it was owned by the owner of condominium No. 3.
The California Supreme Court has explained that "[t]itle to property by adverse possession may be established either under color of title or by claim of right." (Gilardi v. Hallam (1981) 30 Cal.3d 317, 321 (Gilardi), citing §§ 322-325.) When title is asserted by claim of right, as the Flowerses have done in the instant case, section 324 provides: "Where it appears that there has been an actual continued occupation of land, under a claim of title, exclusive of any other right, but not founded upon a written instrument, judgment or decree, the land so actually occupied, and no other, is deemed to have been held adversely." (Gilardi, supra, 30 Cal.3d at p. 321.)
One commentator, in defining the term "claim of right," explains that "[a] person who does not have color of title can claim title by adverse possession under a mere claim of right. A claim of right means that the possessor has the intent, as evidenced by his or her objective acts of ownership, to claim the title to the property and to hold it against the world. The claimant is merely a trespasser or intruder, has no document or evidence of title, and is without any bona fide belief in title. . . ." (6 Miller & Starr, Cal. Real Estate (3d ed. 2000) § 16:3, p. 8.)
Section 325 "requires that to obtain title by adverse possession the land must be occupied and claimed for five years continuously and that claimants or their predecessors must have paid all taxes levied and assessed against the land." (Gilardi, supra, 30 Cal.3d at p. 321.) Section 325 provides: "For the purpose of constituting an adverse possession by a person claiming title, not founded upon a written instrument, judgment, or decree, land is deemed to have been possessed and occupied in the following cases only: [¶] . . . Where it has been protected by a substantial inclosure. [¶] . . . Where it has been usually cultivated or improved. [¶] Provided, however, 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." (Italics added.)
"The elements necessary to establish title by adverse possession are: (1) tax payments, (2) actual possession which is (3) open and notorious, (4) continuous and uninterrupted for five years, (5) hostile and adverse to the true owner's title, and (6) under either color of title or claim of right. The party asserting title by adverse possession has the burden of proving affirmatively each one of these elements. [Citations.]" (California Maryland Funding, Inc. v. Lowe (1995) 37 Cal.App.4th 1798, 1803.)
"The burden is on the adverse claimant of the fee to establish that no taxes were assessed against the land or that if assessed he paid them. [Citation.]" (Gilardi, supra, 30 Cal.3d at p. 326.)
In Sorensen v. Costa (1948) 32 Cal.2d 453, the California Supreme Court explained that "[w]here a claimant of title by adverse possession has paid the taxes actually assessed on the property occupied, a misdescription on the tax assessment roll or in the tax receipts will not generally affect the efficacy of payment under statutes requiring the payment of taxes in order to establish title by adverse possession. [Citations.] Even if the descriptions on the tax receipts are insufficient by themselves to identify the property, as far as the requirements of adverse possession are involved, the claimant may show by other evidence that the particular land occupied was assessed, and the taxes were paid by him or his predecessors. [Citations.]" (Id. at pp. 466-467, italics added.)
In Gilardi, supra, 30 Cal.3d at page 326, the Supreme Court stated that "[o]rdinarily, when adjoining lots are assessed by lot number, the claimant to the disputed portion cannot establish adverse possession because he cannot establish payment of taxes. [Citations.]" However, there is an exception to this general rule when the claimant visibly possesses improvements on the disputed land. The Gilardi court explained that "where the claimant . . . has visibly shown occupation of a disputed strip of land adjoining the boundary, several cases have reasoned that the 'natural inference' is that the assessor did not base the assessment on the record boundary but valued the land and improvements visibly possessed by the parties. [Citations.]" (Id. at p. 327, italics added.)
This exception to the general rule originated in Price v. De Reyes (1911) 161 Cal. 484, in which the California Supreme Court stated: "[T]he natural inference would be that the assessor put the value on the land and improvements of each party as disclosed by the visible possession, rather than that he ascertained the true line by a careful survey and assessed to one a part of the possessions of the other." (Id. at p. 490; see also Raab v. Casper (1975) 51 Cal.App.3d 866, 878; Drew v. Mumford (1958) 160 Cal.App.2d 271, 276; Winchell v. Lambert (1956) 146 Cal.App.2d 575, 583; Frericks v. Sorensen (1952) 113 Cal.App.2d 759, 762; 6 Miller & Starr, Cal. Real Estate, supra, § 16:25, pp. 54-56.)
B. Analysis
Valentine first points out that the parties stipulated condominium No. 2 was designated by the San Diego County Treasurer-Tax Collector as Assessor's Parcel No. 266-291-04-02 and Valentine and his predecessor in interest paid all taxes levied and assessed on that tax parcel. The parties also stipulated condominium No. 3 was designated by the San Diego Treasurer-Tax Collector as Assessor's Parcel No. 266-291-04-03 and the Flowerses and their predecessors in interest paid all taxes devised and assessed on that tax parcel. Valentine concludes that because the disputed garage was included in the property description in the deed by which he acquired title to condominium No. 2 and was not included in the property description in the deed by which the Flowerses acquired title to condominium No. 3, he and not the Flowerses paid all taxes levied and assessed on the condominium that included the disputed garage element. Because we agree tax parcel No. 266-291-04-02 (condominium No. 2) included the disputed garage and the Flowerses did not pay any taxes levied and assessed on that tax parcel, the Flowerses have not established the necessary requirement for adverse possession of the disputed garage under section 325.
In response, the Flowerses argue that the testimony of Angie Fedele, a supervising appraiser for the San Diego County Assessor's Office, established alternatively that the disputed garage was not included in the tax assessor's parcel for either condominium No. 2 or condominium No. 3, or that because the initial tax assessment is based on the purchase price of the condominium and the Flowerses paid a purchase price that included an amount for the disputed garage, the Flowerses paid the taxes on the disputed garage.
Fedele testified that the assessor's office included only three two-car garages in the characteristics of the three condominiums in the project rather than four two-car garages. Fedele testified on direct examination as follows:
"Q: So is it correct that only six spaces were a part of the characteristics?
"[Fedele:] That is correct.
"Q. And as we can see on this chart there were eight spaces. So would it be correct that those extra two spaces were not part of anyone's characteristics?
"[Fedele:] I would say they are not part of these three units' characteristics."
However, when the Flowerses' trial counsel asked her, "[W]ould I be correct in saying that [the extra two spaces]"─ i.e., the disputed garage─"weren't assessed to any one of these three units as far as taxes are concerned?" Fedele replied, "Not necessarily." She stated that "when property sells, the new base value that's established for the property is generally based on the purchase price of that property. So whether our characteristics are correct or not, we defer to the legal description or what was negotiated in the terms of the purchase. So it's not always accurate to say that the garage is not assessed. It just might be that our characteristics are not correct." (Italics added.)
The Flowerses' first argument does not assist their case. First, Fedele did not testify the disputed garage was not assessed; rather, she suggested the "characteristics" attributed to the condominium project by the tax assessor might be incorrect. Second, if the disputed garage was not taxed at all, the Flowerses did not pay any taxes levied and assessed on the disputed garage and therefore cannot establish satisfaction of the requirements of section 325 to support their adverse possession claim.
The Flowerses'second argument is based on the following testimony of Fedele together with evidence from the Flowerses and their predecessors in interest that they thought condominium No. 3 included the disputed garage even though it was labeled G-2 on the condominium plan.
"Q. So if I understand your answer, . . . all things being equal, a certain unit had a certain extra amenity of some sort, a garage or something else, that that would in the market probably cause that unit to sell at a higher price and therefore the assessed value would be based on that higher price and therefore that unit which sells [for] more and assess[es] more would pay more taxes; is that correct?
"[Fedele:] That's correct.
"Q. So if a unit, Number 3, had two garages and all other things being equal and because [of] the extra garage was able to sell at [a] higher price, the assessed value on Unit Number 3 would be higher?
"[Fedele:] I would expect the selling price of a unit to be higher and therefore it would be likely that the assessed value based on that purchase price would be higher because it would reflect what was negotiated, the price that was negotiated.
"Q. And following on with that, that the unit number 3 would pay more taxes because the assessed value was higher because of the extra garage, does that flow also?
"[Fedele:] Yes." (Italics added.)
We are not persuaded by the Flowerses'second argument. Fedele's testimony did not establish that the Flowerses paid taxes levied and assessed on the disputed garage; rather, it established the unremarkable principle that the tax assessor's valuation of a condominium for tax purposes is based on the sales price of the condominium. The tax assessor made no inspection of the condominium project, made no conclusion of the ownership of the disputed garage and made no independent appraisal of the market value of condominium No. 3 purchased by the Flowerses. As recited in the trial court's statement of decision, "neither party presented any evidence as to the sales price[] for their" condominium. There is therefore no evidence the Flowerses paid more for condominium No. 3 with the disputed garage than they would have paid without the disputed garage, and there is no evidence of sales prices or valuations from their predecessors in interest to condominium No. 3. It is therefore impossible to attribute any portion of the purchase price to the disputed garage, which as a part of a condominium is not separately assessed for tax purposes. Even were the Flowerses to establish they attributed a portion of their purchase price for the disputed garage, and therefore paid taxes on the disputed garage (a conclusion with which we do not agree), they purchased condominium No. 3 in 2004 and have not paid taxes for the required five-year period.
The fundamental position of the Flowerses is that they and their predecessors thought the disputed garage was a part of condominium No. 3 even though it was labeled G-2 on the condominium plan as a part of the airspace unit of condominium No. 2. If the Flowerses were told they were buying a condominium with two double spaces rather than one, and they paid a premium price as a result (of which there is no evidence in this case), their remedy is against their sellers or agents, not acquiring title to the disputed garage from the owner of condominium No. 2 by adverse possession. If they think the purchase for condominium No. 3 was above market value because it did not include the disputed garage and their real property tax bill is therefore too high for the property they did purchase, they are free to apply to the tax assessor for a reduction of market value for tax purposes.
The evidence is insufficient to support the court's finding that the Flowerses and their predecessors in interest paid all the taxes, state, county or municipal, levied and assessed on the disputed garage within the meaning of section 325.
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court for further proceedings. Plaintiff and cross-defendant Valentine shall recover his costs on appeal.
WE CONCUR: McDONALD, J. McINTYRE, J.