VANDERKOUS V. CONLEY
<script src="http://www.google-analytics.com/urchin.js" type="text/javascript"> </script> <script type="text/javascript"> _uacct = "UA-1698443-1"; urchinTracker(); </script> <html ><br /> <head><br /> <title>VANDERKOUS V</title><br /> </head><br /> <body><br /> <div><br /> <br/><b >VANDERKOUS V. CONLEY</b><br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/>Filed 9/2/10<br /> <br/><b<br /> > </b><br /> <br/><b<br /> > </b><br /> <br/><b<br /> > </b><br /> <br/><b<br /> > </b><br /> <br/><b<br /> >CERTIFIED FOR PUBLICATION</b><br /> <br/> <br /> <br/>IN<br /> THE COURT OF APPEAL OF THE STATE OF CALIFORNIA<br /> <br/> <br /> <br/>FIRST<br /> APPELLATE DISTRICT<br /> <br/> <br /> <br/>DIVISION<br /> THREE<br /> <br/> <br /> <br/> <br /> <table class=MsoNormalTable border=0 cellspacing=0 cellpadding=0<br /> ><br /> <tr ><br /> <td width=319 valign=top ><br /> <br/>RICHARD<br /> VANDERKOUS, as Trustee, etc.,<br /> <br/> Plaintiff and Appellant,<br /> <br/>v.<br /> <br/>NANETTE<br /> UJDUR CONLEY,<br /> <br/> Defendant and Respondent.<br /> </td><br /> <td width=319 valign=top ><br /> <br/> <br /> <br/> <br /> <br/> A125352<br /> <br/> <br /> <br/> (Contra<br /> Costa County<br /> <br/> Super. Ct.<br /> No. C0602619)<br /> <br/> <br /> </td><br /> </tr><br /> </table><br /> <br/> <br /> <br/> Richard<br /> Vanderkous, as trustee of the Richard Vanderkous Trust, sued Nanette Ujdur<br /> Conley seeking to quiet his title to certain real property. In its statement of decision the court found<br /> that, while Vanderkous had legal title<br /> to the property, Conley retained an equitable interest. Title was thus quieted in Vanderkous and<br /> Conley was directed to execute a quitclaim deed in his favor. But Vanderkous, in return, was directed to<br /> pay Conley the full market value of the property as compensation for her<br /> equitable interest. Following issuance<br /> of the statement of decision, Vanderkous filed a request for dismissal of the<br /> entire action with prejudice. When<br /> Conley appeared in court for a hearing to value her interest and thus set the<br /> measure of Vanderkous's payment, the court set aside the dismissal, valued<br /> Conley's interest, and entered judgment in her favor. Vanderkous later successfully moved to set<br /> the judgment aside pursuant to Code of Civil Procedure section 473,<b ><b >[1]</b></b><br /> and after further proceedings the trial court entered the judgment that is now<br /> before us.<br /> <br/> Vanderkous<br /> says the court erred by proceeding after he requested that the case be<br /> dismissed with prejudice. Because his<br /> dismissal was effective, Vanderkous also says the court erred when it awarded<br /> Conley attorney fees on his motion to vacate the initial judgment under section<br /> 473. In any event, he argues that Conley<br /> was not entitled to recover compensation for her interest in the property<br /> because she never filed a cross-complaint seeking affirmative relief, and the<br /> valuation of her interest as reflected in the court's final judgment was not<br /> supported by substantial evidence. <br /> <br/> We conclude<br /> that Vanderkous's request to dismiss the action was untimely and of no effect<br /> because it was filed after the case was submitted for decision. Though a hearing to value Conley's interest<br /> was pending when the dismissal was filed, that hearing did not have the effect<br /> of vacating submission of the action. <br /> Even in the absence of a cross-complaint, the court had the authority in<br /> the exercise of its equitable powers to compensate Conley for her interest in<br /> the property and the measure of her compensation is supported by substantial<br /> evidence. The award of attorney fees<br /> Conley incurred to oppose Vanderkous's section 473 motion was also proper. We therefore affirm.<br /> <br/><b >FACTUAL AND PROCEDURAL BACKGROUND</b><br /> <br/> Vanderkous<br /> and Conley lived together in a home on an eight-acre parcel of land owned by<br /> Vanderkous in Martinez. The couple split up in 1999. As part of the settlement of their affairs,<br /> Vanderkous sold Conley a portion of the property that included their home. Following a dispute over performance of the<br /> settlement, a September 2001 arbitration award directed Conley to cooperate<br /> with Vanderkous to effectuate a lot line adjustment that would result in the<br /> home, a detached garage and a setback area on a single lot to be owned by<br /> Conley with the remainder of the eight acres as a single parcel to be retained<br /> by Vanderkous. Vanderkous was also to<br /> have access and utility easements over the garage area for the benefit of his<br /> retained parcel. <br /> <br/> The easements<br /> were executed by Conley and recorded. <br /> But the garage and surrounding property were never transferred because<br /> neither Vanderkous nor his attorney recorded either the lot line adjustment or<br /> the grant deed to Conley for the garage and setback area. Even though Conley granted easements to<br /> Vanderkous, she did so without having legal title to the garage and setback<br /> area. <br /> <br/> Conley's<br /> home was destroyed by fire in February 2004, and she was unable to rebuild it<br /> because without the lot line adjustment she did not have a legally buildable<br /> lot. She stopped making her loan<br /> payments and lost the home in a foreclosure sale in May 2006. <br /> <br/> Meanwhile,<br /> Vanderkous received approval to record a subdivision map covering his adjacent<br /> property in July 2005. But the title<br /> company that was to record the map refused to do so because the grants of<br /> easement by Conley created a cloud on Vanderkous's title. The garage and setback area was included in<br /> the proposed subdivision, but its ownership was unclear because the grants of easement<br /> suggested Conley had a legal interest in the property. When Vanderkous was unable to secure a<br /> quitclaim deed from Conley relinquishing any interest she may have in the<br /> garage and setback area, he filed his complaint for declaratory relief and to quiet<br /> his title. <br /> <br/> The<br /> complaint alleged Vanderkous was unable to record his subdivision map or obtain<br /> title insurance, â€