Poole v. Easley

Filed 1/27/09 Poole v. Easley CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

ROY POOLE,

Plaintiff and Appellant, A117625

v. (City and County

of San Francisco

DORIS B. EASLEY, et al., Super. Ct. No. 441733)

Defendants and Respondents.

_____________________________________/

Appellant Roy Poole filed a complaint against his grandmother respondent Doris B. Easley alleging he had gained title to the home in which he was living through adverse possession. The trial court rejected appellants claim finding his possession of the home was not hostile. Appellant now appeals arguing the trial court applied the law of adverse possession incorrectly. We disagree and will affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Doris B. Easley and her late husband Roderick^[1]owned a home located at 267 Minerva Street in San Francisco. They had four children: Roderick, Oscar, Byron, and Bonita. Bonita was married and had two sons: Robert and Roy.

Bonita divorced and she and her sons moved several times. Doris and her husband purchased the home located across the street at 280 Minerva Street so Bonita and her children could have a place to live. The agreement was that Bonita would pay the property taxes, insurance, and upkeep on the house.

Bonita, Robert, and Roy moved into the property in 1976. Robert was 14 and Roy was 10 at the time. Four years later when Robert turned 18, he moved out of the house and left the area. Robert returned to San Francisco in approximately 1985. He moved into his grandmothers home at 267 Minerva.

Bonita and Roy continued to live at 280 Minerva Street. Over the years, Roy upgraded portions of the home and performed significant repairs.

Robert and Roy both lost their jobs at the San Francisco Airport in 1987. After Robert and Roy lost their jobs, Doris commented that they should move and find jobs outside of San Francisco. On December 31, 1994, Doris left the following message on Roys answering machine:

Mamas house will be sold.

Robert, Im telling you again, you and Roy better get you a place to live and get a job outside of San Francisco. The house will be sold as soon as your mother close her eyes and I close my eyes. Youre not going to pay your taxes and insurance on it and we hafta lose it. You wont pay me $200 so I know you not gonna pay the tax and insurance on it. Bye.

Mommys house will be sold.^[2]

Robert, who was a musician, set the phone message to music, transferred it to a CD, and played it for Doris.

Doris transferred title to 280 Minerva Street to a trust in 1988. Bonita and Roy continued to live in the house until Bonita died in 2004.

After Bonitas death, Doriss son Roderick, who was then trustee of Doriss trust, sent letters to Roy asking him to either move out or pay rent. Roy responded by filing the complaint that is at issue in the current appeal.^[3] As is relevant, he alleged he had gained title to 280 Minerva Street through adverse possession.^[4]

Doris moved for summary adjudication on the adverse possession cause of action arguing she was entitled to prevail as a matter of law because Roys possession was not hostile. The trial court agreed and granted summary adjudication. Roy filed a petition for a writ of mandate. This court issued an alternative writ of mandate. As is relevant, our order stated as follows:

It appears respondent superior court erred when it granted summary adjudication of petitioners first cause of action to quiet title under a theory of adverse possession. The motion was narrowly focused on the hostile and adverse element of an adverse possession claim. It is well settled that we must construe the opponents (petitioners) papers liberally and resolve doubts about the propriety of granting the motion in favor of the parties opposing summary adjudication. (Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474.) The record reveals triable issues of material fact about whether petitioners possession of the property was with the record owners permission (see PA 144:24-25, PA 146:10-12, PA 218:24-25, PA 219:20-21) and whether petitioners placed the record owner on at least constructive notice that their possession was adverse to the record owners title (see PA 145:17-23, PA 219:12-19). (See Southern Pac. Co. v. City & County of San Francisco (1964) 62 Cal.2d 50, 56-57; Buic v. Buic (1992) 5 Cal.App.4th 1600, 1605; California Maryland Funding, Inc. v. Lowe (1995) 37 Cal.App.4th 1798, 1806-1807.) Therefore, the granting of summary adjudication was erroneous.

The trial court elected to vacate its prior decision and to deny summary adjudication on the adverse possession cause of action.

The case then proceeded to a court trial. After hearing the evidence presented, the court rejected Roys adverse possession claim ruling his possession of 280 Minerva Street was neither hostile nor exclusive.^[5]

II. DISCUSSION

A. Whether Roys Possession was Hostile

Roy contends the trial court erred when it rejected his adverse possession claim.

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 owners title, and (6) under either color of title or claim of right. (California Maryland Funding, Inc. v. Lowe, supra, 37 Cal.App.4th at p. 1803.) The party seeking title by adverse possession has the burden of proving each of these elements. (Ibid.) Whether each element has been established is a question of fact for the trier of fact. (Sevier v. Locher (1990) 222 Cal.App.3d 1082, 1087.) The determination made by the trier of fact will be affirmed on appeal if it is supported by substantial evidence. (Taormino v. Denny (1970) 1 Cal.3d 679, 687.)

Roy pointedly contends that he does not dispute any of the factual findings that were made by the trial court. From this Roy maintains this court is faced only with issues of law. While this court does review issues of law de novo(Topanga and Victory Partners v. Toghia (2002) 103 Cal.App.4th 775, 779-780,) Roy in fact challenges certain aspects of the trial courts factual findings. Under well settled law, the trial courts factual findings, express or implied, must be upheld on appeal so long as they are supported by substantial evidence. (Williams v. City of Belvedere (1999) 72 Cal.App.4th 84, 89-90.) With this background, we turn to the trial courts ruling.

The trial court rejected Roys adverse possession claim finding his possession of 280 Minerva Street was not hostile.

Hostility means that the claimants possession is adverse to the record owner unaccompanied by express or inferred recognition of the record owners rights. (Buic v. Buic, supra, 5 Cal.App.4th at p. 1605.) For example, where someone refuses to surrender property, throws away for-sale signs, maintains and improves property, and brings and defends possessory-type claims, hostile and adverse use is shown. (California Maryland Funding, Inc. v. Lowe, supra, 37 Cal.App.4th at pp. 1806-1807.) However, special factors come into play when a person takes possession of property with the consent of the owner. Under that circumstance, the party seeking to establish title through adverse possession must make an unqualified and definite renunciation of the owners rights. (Southern Pac. Co. v. City & County of S.F., supra, 62 Cal.2d at p. 56; see also Johnson v. Ocean Shore Railroad Co. (1971) 16 Cal.App.3d 429, 436.) Similar stringent rules apply when a party seeks to establish adverse possession against a close family member. In that case, possession will not be considered adverse to the owner absent a clear showing of the hostile claim. (Lobro v. Watson (1974) 42 Cal.App.3d 180, 186.)

Here, Roy sought adverse possession against his grandmother, a close family member, who bought the house in question and allowed him to live there with his mother. Under the authority above, Roy was thus required to present evidence that was sufficient to demonstrate he clearly and unqualifiedly asserted his hostile intent and renounced his grandmothers right of ownership. Roy presented two types of evidence in an attempt to meet that burden. First, he showed that he did not move from the property when Doris said he should. While it is possible to construe that act as hostile to Doriss ownership rights, it is equally possible to construe it more benignly: that Roy, then an adult, was simply declining to follow his grandmothers advice. On appeal, we are required to presume the trial court adopted the latter interpretation. (Taormino v. Denny, supra, 1 Cal.3d at p. 687.) Roy also presented evidence that he and his brother took Doriss December 31, 1994 phone message, set it to music, and as the trial court found, played it for her. Again, while it is possible to interpret that act as hostile to Doriss ownership rights, it is equally possible to interpret it as simple boorishness or as the playful conduct of an immature musician. Again, we must presume on appeal that the court adopted one of the latter interpretations. (Ibid.)

We conclude substantial evidence supports the trial courts conclusion that Roys possession of 280 Minerva Street was not hostile to his grandmothers ownership right. The court did not err when it rejected Roys adverse possession claim.^[6]

B. Law of the Case

Roy contends that when this court issued the alternative writ, we established the law of the case. According to Roy, [i]mplicit in our ruling was the finding that the voice mail message was sufficient to establish that [his] possession was hostile if its existence was proved at trial.

First, the authority Roy cites in support of his argument, Kowis v. Howard (1992) 3 Cal.4th 888, in fact disproves it. There, our Supreme Court stated, When the appellate court issues an alternative writ, the matter is fully briefed, there is an opportunity for oral argument, and the cause is decided by a written opinion. The resultant holding establishes law of the case upon a later appeal from the final judgment. [Citations.] (Id.at p. 894, italics added.) Here, we did not issue a written opinion. We invited the trial court to vacate its order or in the alternative to show cause why a peremptory writ should not issue. The trial court elected to do the former and the matter was never ordered on our calendar. Therefore, our reasoning in the alternative writ is not law of the case. (Ross v. San Francisco Bay Area Rapid Transit Dist. (2007) 146 Cal.App.4th 1507, 1513, fn. 6.) Contrary to Roys argument, our alternative writ order did not contain any implicit ruling. It was in fact quite clear. The trial court erred when it granted summary judgment because a triable issue of fact existed. That court has now conducted a trial and has made findings of fact that are supported by substantial evidence.

III. DISPOSITION

The judgment is affirmed.

_________________________

Jones, P.J.

We concur:

_________________________

Simons, J.

_________________________

Needham, J.

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^[1] Many parties to this appeal share the same last names. For clarity, we will sometimes refer to them by their first names.

^[2] The parties agree that the phrase as soon as your mother close her eyes and I close my eyes refers to the deaths of Bonita and Doris.

^[3] The complaint originally named Roy and Robert as plaintiffs. However, shortly before trial, Robert was voluntarily dismissed as a plaintiff.

^[4] The complaint named as defendants, Doris, the Doris B. Easley 1988 Trust, and Roderick as trustee of the trust. Unless more specificity is needed, we will refer to the defendants collectively as Doris.

^[5] The court did grant equitable relief to Roy ruling he was entitled to an equitable lien against 280 Minerva Street, and that he had the option of living in the home until Doris died. Neither party challenges that aspect of the judgment on this appeal.

^[6] Having reached this conclusion, we need not decide whether Roys adverse possession claim failed because it was not exclusive. We also need not reach two arguments Doris has advanced; i.e., whether Roy should be bound by language contained in a letter that his attorney prepared, or whether Roy failed to present sufficient evidence that he paid taxes on the property.