Montano
v. Hernandez
Filed
2/26/13 Montano v.
Hernandez CA2/7
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
DIANA C. MONTANO,
Plaintiff and Appellant,
v.
NANCY HERNANDEZ,
Defendant and Respondent.
B239843
(
Super. Ct.
No. BP125770)
APPEAL from a judgment of the
Lorraine Anderson for Plaintiff and
Appellant.
Law Offices of Cameron Sanchez and Cameron W. Sanchez
for Defendant and Respondent.
_______________________
Diana Montano
filed a quiet title action asserting adverse
possession of a home. After three
demurrers were sustained with leave to amend, the
Third Amended Complaint without leave to amend.
Montano appeals the judgment of dismissal, and she also contends that
the trial court should have granted her discovery motions. We affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
In 2010 Montano filed suit to quiet title to a home in
Los Angeles in which she had been
living. The house had belonged to her
husband’s parents, the Sinohuis, who had died in 1996 and 1997,
respectively. She had resided there
since 1992. Montano filed a First
Amended Complaint, to which Nancy Hernandez, Mrs. Sinohui’s daughter,
demurred. The record does not include
the trial court’s ruling on this demurrer or a transcript of the proceedings on
this demurrer.
Montano filed a Second Amended Complaint, and
Hernandez again demurred. The court
sustained the demurrer to the Second Amended
allowed an opportunity to amend but the Second Amended Complaint still does not
allege any facts regarding the specifics of the adverse possession claim and I
need specific facts constituting adverse possession. There’s five specific elements that need to
be addressed. None of those have been—I
don’t want to say none of them but they need to be better pled. It appears at this point, based on my review
of the petition, that the facts constituting adverse possession are conclusions
but I don’t have the specific facts that show that the possession was actual,
open, notorious and adverse. So I’m
going to give you another opportunity to try to address that.â€
Montano filed a Third Amended Complaint in which she
restated her quiet title claim and added three new causes of action: breach of oral contract, breach of implied
contract, and unjust enrichment.
Hernandez demurred to the Third Amended Complaint and requested judicial
notice of Montano’s husband’s death certificate, demonstrating that he died in
2008. The trial court sustained the
demurrer without leave to amend.
On December 30, 2011, Montano moved for
reconsideration of the ruling on the demurrer.
On January 4, 2012, she filed motions seeking
an order to compel responses to discovery and an order deeming her requests for
admission admitted. The court denied the
motion for reconsideration on January 25, 2012, without prejudice to
seeking permission to file an amended complaint. On February
3, 2012, Montano moved for leave to file a Fourth Amended Complaint.
On February
16, 2012, the court entered judgment. The
court denied the discovery motions on March 9,
2012. Montano appeals.
DISCUSSION
I. Sufficiency
of the Allegations of the Quiet Title Cause of Action
Montano contends that the trial court erred in
sustaining the demurrer to the Third Amended Complaint because her quiet title
cause of action was adequately pleaded.
We review the ruling on a demurrer de novo. “On appeal from a judgment dismissing an
action after sustaining a demurrer without leave to amend, the standard of
review is well settled. The reviewing
court gives the complaint a reasonable interpretation, and treats the demurrer
as admitting all material facts properly pleaded. [Citations.]
The court does not, however, assume the truth of contentions, deductions
or conclusions of law. [Citation.] The judgment must be affirmed ‘if any one of
the several grounds of demurrer is well taken.
[Citations.]’ [Citation.] However, it is error for a trial court to
sustain a demurrer when the plaintiff has stated a cause of action under any
possible legal theory. [Citation.] And it is an abuse of discretion to sustain a
demurrer without leave to amend if the plaintiff shows there is a reasonable
possibility any defect identified by the defendant can be cured by
amendment. [Citation.]†(Aubry
v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)
Here, the vitality of the quiet title action turns on
whether the facts pleaded in the Third Amended Complaint, taken as true, demonstrate
that Montano’s possession of the home was hostile to the owner’s title rather
than permissive. (Hacienda Ranch Homes, Inc. v. Superior Court (2011) 198 Cal.App.4th
1122, 1128 [elements of adverse possession include possession by actual
occupation hostile to the owner’s title].)
Taking the facts pleaded in the Third Amended Complaint as true, Montano
established that she was married to David Sinohui. David lived with his parents in their house,
and she moved in there in 1992. David
was sentenced to three and one-half years in prison shortly after Montano moved
into the house.
Montano became a full-time caretaker to her
parents-in-law. Her father-in-law died
in 1996 and her mother-in-law died in 1997.
Thereafter, Montano continued to live at the house. The house needed repair and upkeep, which
Montano provided. She maintained and
improved the property with a new roof, electrical and plumbing work, new doors,
new locks, exterior and interior painting, and the installation of a fence at
the front of the property.
Montano denied all Sinohui family members access to
the property unless they lived there as paying tenants. She pleaded that in 1999 she permitted
members of the family to move into the house but that they moved out soon
thereafter when they could not pay the rent.
Two other family members asked to live at the property but their stays
were also brief as they did not pay rent.
Montano alleged that her husband’s brother asked to live at the house in
late 2009, and that he lived there for approximately one year while paying
monthly rent. Montano alleged that her
possession of the property was known to the Sinohuis and that that it was not
until October 2010 that any family member demanded that she pay rent to live at
the house.
In conjunction with the
demurrer to the Third Amended Complaint, Hernandez requested judicial notice of
David Sinohui’s death certificate, which establishes that he died in August
2008 and that he resided at the house at the time of his death. As Montano seeks a determination of title to
the house as of October 25, 2010, her adverse possession of
the house must have started before her husband’s death, in 2005. (Code Civ. Proc., § 325, subd.
(b).) Montano, however, pleaded no facts
in the Third Amended Complaint to demonstrate that her possession of the home
was hostile rather than permissive in light of her marital status: other than to mention that she had been
married to David Sinohui, that he went to prison for three and one-half years,
and that he died after his mother, she did not plead any facts concerning his
residence, whether he was an owner of the home, or how her possession of the
home was nonetheless adverse despite their marriage and apparent joint
occupancy of the property. (See, e.g.,
[“If title had passed to [wife] by a conveyance executed in 1883, no ownership
or control asserted by her husband thereafter would revest title in him, unless
he had maintained an adverse possession in the manner and for the time required
by the code. There is nothing here to
indicate that the possession was adverse at all. The tract was occupied by both parties as
their home, before and after the conveyance to Mrs. Reed. The occupancy was consistent with an
ownership by either husband or wife. It
was, in fact, a joint occupancy, and could not, on the facts offered to be
shown, furnish the basis for a claim of prescriptive title by one against the
otherâ€].) Accordingly, Montano failed to
“allege the specific facts constituting the adverse possession†(Code Civ.
Proc., § 761.020, subd. (b)) that she claims as a basis for her action to
establish title. The trial court,
therefore, did not err in sustaining the demurrer to the quiet title cause of
action in the Third Amended Complaint.
II. Other
Causes of Action
The trial court sustained Hernandez’s demurrers to
three new causes of action included in the Third Amended Complaint that had not
been presented in earlier complaints.
Montano asserts on appeal that the trial court “refused to address the
content of the other causes [of action], claiming the additional allegations
were brought without permission, effectively side-stepping their
sufficiency.†The trial court’s ruling
on the demurrer to these causes of action was proper. “Following an order sustaining a
demurrer . . . , the plaintiff may amend his or her
complaint only as authorized by the court’s order. [Citation.]
The plaintiff may not amend the complaint to add a new cause of action
without having obtained permission to do so, unless the new cause of action is
within the scope of the order granting leave to amend.†(Harris
v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) Montano has not demonstrated that the court
gave her permission to add new causes of action after sustaining the demurrer
to the Second Amended Complaint, nor has she shown that the causes of action
she added to the Third Amended Complaint were within the scope of the order
granting leave to amend. The court did
not err.
On appeal, Montano collapses her discussion of all the
causes of action she attempted to assert in the Third and proposed Fourth
Amended Complaints into one argument, entitled, “Other Causes of Action in
Third or Fourth Amended Complaint.†This
section of argument appears intended to show that each claim stated a valid
cause of action. Montano, however, has
failed to demonstrate any error by the trial court.
Montano first addresses the breach of contract causes
of action. Her presentation on this
point consists of two sentences concerning the elements of a breach of contract
claim. Montano fails to provide argument
showing that the Third Amended Complaint or proposed Fourth Amended Complaint
adequately stated a cause of action. An
appellant must offer argument as to how the court erred, rather than citing
general principles of law without applying them to the circumstances before the
court. (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691,
699.) “‘“An appellate court cannot
assume the task of discovering the error in a ruling and it is the duty of
counsel by argument and the citation of authority to show the reasons why the
rulings complained of are erroneous.
Contentions supported neither by argument nor by citation of authority
are deemed to be without foundation and to have been abandoned.†[Citations.]’
[Citation.]†(
As Montano has failed to show that she stated or could state a cause of
action for breach of contract, she has not established error in sustaining the
demurrer or denying leave to amend her contract-based causes of action.
Next, Montano addresses the unjust enrichment cause of
action from her Third Amended Complaint with a single sentence argument that
asserts that if Montano is not found to own the property she should receive the
cost of improvements, taxes, and her other expenditures. This single-sentence summary of her cause of
action is also insufficient to establish error.
(In re Phoenix H.,
Montano next asserts that she properly stated a claim
in the Fourth Amended Complaint for a common count of “goods and services
rendered†because she alleged a contract for services that she has performed,
and “if she loses title to the Property, she will not have been compensated for
her services.†Montano has not
demonstrated that she pleaded a viable common count here. The pleaded basis for the defendants’
indebtedness is her contract with her parents-in-law by which she would “move
into the Property and care for them, in exchange for which Plaintiff would
receive full title to the Property upon her in-Law’s [sic] death.†According to
Montano, she fulfilled her obligations under the contract, and the only duty
remaining under the contract was the parents-in-law’s obligation to give her
full title to the property. When the
mode of payment under a contract is other than money, a common count does not
lie; a litigant must sue on the contract.
(Castagnino v. Balletta (1889)
82 Cal. 250, 258 [“If the mode of payment was any other than in money, the
count must be on the original contractâ€]; see also O’Connor v. Dingley (1864) 26 Cal. 11, 22-23 [no common count
because the defendant had been obligated to pay for services with a promissory
note; action should have been based on failure to execute note];
Inc. (1966) 246 Cal.App.2d 686, 697 [“a common count was improper because
the performance due was something other than moneyâ€].)
Finally, with regard to the
cause of action in the Proposed Fourth Amended Complaint entitled, “Failure to
Execute Formalized Agreement,†Montano states only that the property was to go
to her upon her mother-in-law’s death and that Hernandez has not executed the
documents necessary to complete the transfer.
Here again, Montano has failed to provide any legal analysis to support
her implicit claims that the court erred and that she stated a valid cause of
action. “These contentions are supported
by neither argument nor citation of authority; they are therefore deemed
abandoned. [Citation.] A reviewing court need not consider alleged
error when the appellant merely complains of it without pertinent argument.†(Downey
Savings & Loan Assn. v. Ohio Casualty Ins. Co. (1987) 189 Cal.App.3d
1072, 1090.)
III. Fourth
Amended Complaint
Montano next argues that the
trial court erred in denying her permission to file a Fourth Amended
Complaint. Although it is not clear
whether she means to refer to the court’s sustaining of the demurrer to the
Third Amended Complaint without leave to amend or to the effective denial of
her motion to file a Fourth Amended Complaint by the entry of judgment,
resolution of this question is not necessary to our analysis. Leave to amend should be granted only when
the plaintiff demonstrate a “reasonable possibility†that he or she can amend
any of his or her claims to state a viable cause of action. (Schifando
v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081; see also
318 [“The burden of proving such reasonable possibility is squarely on the
plaintiffâ€].) Neither here nor before
the trial court did Montano show that her proposed Fourth Amended Complaint
stated a viable cause of action.
Accordingly, we find no abuse of discretion by the trial court.
IV. Discovery
Motions
Montano argues that the
trial court should have compelled discovery responses by the defendants because
those responses would have provided her with facts essential to her causes of
action. Montano describes her discovery
requests as addressing “all the points of ownership, notice, openness of
occupancy by plaintiff, and the complete lack of protest by anyone for 13
years.†Specifically, Montano asserts
that “[n]one of the purported ‘heirs’ could demonstrate any objection to
plaintiff’s open and notorious occupancy of the premises for a thirteen year
period, after her in-laws’ deaths, and her occupancy with them from 1992 until
her recent eviction.†Even if we assume
it to be true that the discovery responses would have shown that no one
objected to Montano’s presence on the property, that fact would not remedy the
deficiency in her adverse possession cause of action with respect to whether
the possession of the property was hostile rather than permissive, and it is
irrelevant to the other causes of action she attempted to allege. Moreover, at the time that Montano moved to
compel responses to the discovery, the demurrer to the Third Amended Complaint
had been sustained without leave to amend, so there existed neither an operative
complaint nor permission to file one.
Montano has demonstrated no abuse of discretion in the ruling denying
her motions for discovery, nor has she shown that the discovery she sought
would have permitted her to state a viable cause of action.
DISPOSITION
The judgment is affirmed. Respondent shall recover her costs on appeal.
ZELON,
J.
We
concur:
PERLUSS, P. J.
WOODS, J.
has requested that this court impose sanctions against Montano for a frivolous
appeal. Because the appeal does not meet
the legal standard for frivolousness (In
re Marriage of Flaherty (1982) 31
Cal.3d 637, 650), we deny Hernandez’s motion.
