Filed 10/1/20 Murray v. Hull CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APRIL A. MURRAY,

Successor in Interest, etc., Plaintiff and Appellant,

v.

JAMES E. HULL et al.,

Defendants and Respondents. B290468

(Los Angeles County Super. Ct. No. BC660453)

APPEAL from a judgment of the Superior Court of Los Angeles County, M ichelle Williams

, Judge. Affirmed.

April A. Murra y in pro. per

. , as Successor in Interest, etc. ; Justin R. Sarno for Plaintiff and Appellant. [Retained.]

No appearance for Defendants and Respondents.

* * * * * *2 A woman sued her siblings to partition the “family home”
that they jointly owned . She also sued for waste. The trial court rejected her claims after a one

- day bench trial. We conclude there was no error, and affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts 1
A. The family As pertinent to this case, the family consists of several
individuals

— Billie J. Hull (plaintiff) ; her mother, Annie Hull; and various other family members, including Patricia Duplantier, Joyce Ann Hull , Annie Davis , and Helen Parson , J ames Earl Hull, Augus t us Hull, William Hull and Vernon Hull.
B. The “family house” The lawsuit deals with a residential property on South Ward Avenue in Compton, California (the property). The property was purchased in 1970 to serve as the “family
house.” Title to the pr operty was taken by plaintiff and Annie Hull, as joint tenants. Annie Hull, the family matriarch, live d in the house on the property. In 2000, plaintiff and Annie Hull quitclaimed title to the property to all of the family members as joint tenants. Th e deed granted title to the married family members as their “sole and separate property.” In changing the title, “the intent of the [ family members ] was that the house was ‘for the family’” and to ensure that the family “would have a place to go.” Over the next 16 years, the family members did some upkeep on the property. In 2005, the family members took out a

1 These facts are drawn from the Separate Statement prepared by the trial court, by the exhibits admitted a t trial, and by the facts deemed admitted due to a discovery violation

.3

$100,000 loan, secured by the property, to rebuild the house “around mother.” And in 2009 or 2010, Augustus Hull painted
the house and did some other maintenance. While there was evidence that in 2016 the property was in “bad condition” and had several permit violations, there was no evidence of the property’s prior value. During this 16

- year period, plaintiff was the only sibling who paid the monthly mortgage, the property taxes, the insurance premiums on the property

, or for any upkeep, maintenance and repairs

. Two of the siblings

— Joyce Ann Hull
and William Hull

— lived on the property by 2016, but did not pay plaintiff any rent. They occ asionally sublet part of the property
as well.
II. Procedural Background In August 2016, plaintiff sued all of her family members except Helen Parson, Annie Hull and Vernon Hull (as th ose three had passed away). In this lawsuit

, plaintiff sought (1) to partition the property by selling it, and (2) compensatory damages for waste on the ground that her siblings had “caus[ed] a diminution of value by failing and refusing to maintain its upkeep.” 2 Plaintiff attached documents to the complaint indicating th at two of the family members

— P atricia Duplantier
and Annie Davis

— consented to the partition by sale.

2 Four of the siblings

— James Earl Hull , Augustus Hull

, Joyce Ann Hull and William Hull

— filed a cross

- complaint against plaintiff for fraud, embezzlement, breach of trust and an

accou nting. From the fractured record we have been provided, we cannot ascertain what happened to the cross

- complaint. But it is of no matter because it is not at issue on appeal.4 The trial court held a one

- day bench trial in January 2018. Plaintiff, Patricia Du p lantier , James Earl Hull, Joyce Ann Hull, and August us Hull each testified. In April 2018, the trial court issued its 11

- page Final
Statement of Decision. The court denied plaintiff’s request for partition. The court recognized that joint tenants have a right to partition their jointly owned property , but noted that they may waive that right by entering into an express or implied agreement not to partition. The court observed that courts may imply such an agreement “ ‘where the purpose for which the property was acquired would be defeated by a partition.’” Based on the evidence adduced at trial, the court found “an implied, if not express, agreement among the family members that the

p roperty would stay in the family for use by the family” and that “[p]artition by sale would breach this agreement.” The cou rt acknowledged that plaintiff and Patricia Duplantier had , in their testimony, disputed that the intent of the siblings was to create a “family home,” but the court found the “Hull defendants’ testimony concerning the purpose of the transfer and loan . . . to be substantially more credible than [ p ] laintiff or . . . Duplantier .”
The court also denied plaintiff’s claim for waste because she had adduced “almost no evidence to support her claim that

. . . Augustus [Hull] and Joyce [Ann Hull ] have caused waste in excess of any depreciation in the value of the p roperty through the exercise of their legal rights.”
Plaintiff filed this timely appeal

. While the appeal was pending, she passed away and we substituted April Murray, her
successor in interest, as the appellant (plaintiff). For ease of reference, we will continue to use the term “plaintiff.”5 DISCUSSION Plaintiff argues that the trial court erred in rejecting her claims for partition and waste. We review the trial court’s legal rulings de novo and its factual findings for substantial evidence. ( Siry Investments, L.P. v. Farkhondehpour (2015) 238 Cal.App.4th 725, 728

- 729.)
I. Claim for Partition When a parcel of property is owned by joint tenants, each has the right to sever the joint tenancy by seeking judicial partition of the property. (Code Civ. Proc., § 872.710, subd. (b) 3 [creating qualified statutory right to partition]; Estate of Propst (1990) 50 Cal.3d 448, 455 [noting “common law” right to partition] .) However, a joi nt tenant’s right to partition is “not absolute” ( De Harlan v. Harlan (1946) 74 Cal.App.2d 555, 560)

, and may be waived by a prior express or implied agreement by the joint tenants not to partition. ( § 872.710, subd. (b); Orien v.
Lutz (2017) 16 Cal.App.5 th 957, 962; Pine v. Tiedt (1965) 232 Cal.App. 2d 733, 738 ( Pine ); Heber v. Yaeger (1967) 251 Cal.App.2d 258, 262.) Courts will imply such an agreement if “the purpose for which the property was acquired would be defeated by” partition ( Thomas v. Witte (19 63) 214 Cal.App.2d 322, 327; Pine , at p. 739) or if “partition would frustrate the very purpose for which the land . . . is now being used” ( Pine , at p. 740). The trial court applied this governing law and its finding
that the family members had entered i nto an express or implied agreement not to partition the property is supported by substantial evidence. At trial, Augustus Hull testified that “the

3 All further statutory references are to the Code of Civil Procedure unless o therwise indicated.6

intent of the [ family ]” in putting title to the property in all of the siblings ’ names in 2000 “was that th e house was ‘for the family’”
and to ensure that the family members “would have a place to go.” T he mutual intent to keep the property “in the family” was corroborated by the specification that title was to be taken by any
married family members “as their sole and separate property.” It is also corroborated by the parties’ conduct. T he family members
took title as joint tenants rather than tenants in common

, ostensibly because joint tenancy assures that, as each family member dies, his or her interest passes to the other living family
members holding title

— not to anyone else. (E.g., Zanelli v.
McGrath (2008) 166 Cal.App.4th 615, 630 [“The right of survivorship is the d istinguishing feature of a joint tenancy.”] ; Estate of Mitchell (1999) 76 Cal.App.4th 1378, 1385 ( Mitchell ) [“‘when one joint tenant dies, [his or her interest] belongs automatically to the surviving joint tenant ( s ) ’”] .) Consistent with this purpose, Joyc e Ann and William were living on the property at the time plaintiff filed her lawsuit. Partitioning and selling the property would defeat both the purpose for which the property was acquired as a joint tenancy among all the family
members and the purpose for which it was being used in 2016
because partition and sale would mean that the property would no longer function as a “family” house and would leave Joyce Ann and William without a “place to go”; indeed, Joyce Ann said she
would be rendered homeless if the property were sold. (Accord,
Pine

, supra , 232 Cal.App.2d at p. 739 [agreement not to partition implied where property was “given to one of the spouses for occupancy” and partition would result in her eviction].)
Plaintiff attacks the trial court’s partition ruling with what boil down to five arguments.7 First, she urges us to review the evidence de novo. For support, she cites Bixby v. Pierno (1971) 4 Cal.3d 130, 141

- 147, Interstate Brands v. Unemployed Ins. Appeals Bd. (1980) 26 Cal.3d 770, 774

- 780, and other cases. All of these cases deal with the standard of review applicable to writs of administrative mandamus under section 1094.5; they are accordingly irrelevant. Where, as here, we are reviewing a trial court’s fa ctual findings regarding partition

— and, even more specifically, its findings regarding the existence of an agreement not to partition

— we review those findings solely for substantial evidence. ( Cunningham v. Frymire (1958) 160 Cal.App.2d 726, 729 [so
holdi ng]; Miranda v. Miranda (1947) 81 Cal.App.2d 61, 68

- 69 [same].) Second, plaintiff argues that substantial evidence does not support the court’s finding of an agreement not to partition the property because (1) plaintiff testified that there was no such agreement and , as a matter of logic, she would never have entered into an agreement that left her paying all of the expenses
while her other family members paid nothing, and (2) the court’s finding contradicts the facts that the court previously deemed to
be established due to her family members’ refusal to respond to one of her discovery requests. We reject both arguments. Although plaintiff testified that there was no such agreement, Augustus Hull testified that there was, the trial court found him
more credible on this point , and his testimony alone constitutes substantial evidence. (E.g. People v. Lewis (2001) 25 Cal.4th 610, 646 [“The testimony of a single witness . . . can constitute substantial evidence.”]; In re Lana S. (2012) 207 Cal.App.4th 94, 103 [appellate courts cannot generally revisit a trial court’s credibility findings].) Further, plaintiff’s argument that she8

would never have agree d to forego partition had she known her other family members would contribute nothing in the future impermissibly asks us to infer her intent at one point in time from what happened afterwards; we declin e to construe the parties’ intent through the distorting lens of hindsight. And although the trial court did deem several facts to be conclusively admitted as a sanction for a discovery violation (§ 2033.280; St. Mary v. Superior Court (2014) 223 Cal.App. 4th 762, 783), we disagree with plaintiff that those facts were “outcome
determinative” in her favor. To the contrary, the facts deemed to be conclusively admitted were that plaintiff was the only sibling who paid the monthly mortgage, paid the property t axes, pa i d the insurance premiums, and paid for the upkeep, maintenance and repairs on the property. These facts do not speak to the parties’ intent in transferring the property in 2000 or to its current use,
and thus are not relevant to the factual findi ngs on which the trial court’s decision ultimately turns. Plaintiff urges that the trial court should have mentioned the conclusively established facts in its order, but its failure to do so does not change their
lack of relevance. Third, plaintiff conte nds that partition is a favored remedy

— both generally, because it fosters the alienability of property (e.g., Summers v. Superior Court (2018) 24 Cal.App.5th 138, 142; Cummings v. Dessel (2017) 13 Cal.App.5th 589, 596

- 597 ; Civ. Code § 880.020, subd. (a)(1) [“[R]eal property . . . should
be made freely alienable and marketable to the extent practicable”] ), and specifically here, because it would allow the cost of the property’s permit violations to be spread out among all
the siblings. Neither contention ov errides the trial court’s factual finding that there was an agreement not to partition. (Accord,9

Civ. Code § 880.030 [“Nothing in this title shall be construed to . . . [l]imit [ the ] application of the principles of waiver . . .”] , italics
added .)
Fo urth, plaintiff cites a number of cases that she claims support reversal of the trial court’s ruling or otherwise impeach the trial court’s analysis. They do not. (See De Roulet v. Mitchel (1945) 70 Cal.App.2d 120, 123

- 124 [addressing issue of partition in kind versus partition by sale]; Formosa Corp. v. Rogers (1951) 108 Cal.App.2d 397, 409 [same]; Friedman v. Friedman (1993) 20 Cal.App.4th 876, 883

- 884 [addressing so

- called “ Marvin
contracts” between non

- married spouses].) Lastly, plaintiff accuses the trial court of allowing its ruling to be “dictated by the subjective consequences of ordering a partition

, ” and as evidence of the court’s perceived bias, cites a passage from the st atement of decision summarizing Joyce Ann
Hull’s testimony. That passage reads: “With great emotion, [Joyce Ann Hull ] testified, ‘I want to live in my mommy’s house.’” We reject plaintiff’s suggestion that a trial court’s presum ptively accurate summary o f testimony, including its observation of witness demeanor, renders the court biased.
II. Claim for Waste One joint tenant may sue another for waste (§ 732), but such a claim requires a showing that the offending tenant’s
conduct has caused a “ ‘ substantia l depr eciation [ in ] the market
value ’ ” of the property at issue. ( Smith v. Cap Concrete, Inc. (1982) 133 Cal.App.3d 769, 775

- 776; Schellinger Brothers v.
Cotter (2016) 2 Cal.App.5th 984, 1001.) The trial court found that plaintiff had failed to show a su bstantial depr eciation in the
market value of the property , and that finding is supported by substantial evidence. There was evidence that the property was10

in “bad condition” in 2016, but there was no evidence of its
condition or value at other prior poin ts in time; without that metric, there is no way to know whether the property’s value had gone up or down due to the siblings’ conduct. Further, our affirmance of the trial court’s ruling on partition means that April Murray, as successor to Billie Hull, no longer has standing to seek redress for waste; only a property owner may bring a claim for waste ( Cornelison v. Kornbluth (1975) 15 Cal.3d 590,
597

- 598; § 732), and Billie Hull’s ownership interest in the
property

— by virtue of the joint tenancy and the absence of any partition of that joint tenancy

— passed to the other family
members upon her death , not to April Murray. ( Mitchell

, supra , 76 Cal.App.4th at p. 1385; cf. Hammond v. McArthur (1947) 30 Cal.2d 512, 515 [filing a partition claim does not termin ate joint tenancy].) Plaintiff offers two arguments in response. First, she argues that the trial court erred by loo k ing to the physical condition of the property rather than its “ financial condition

, ” and by ignoring that the siblings did not contribute to the property’s expenses. These arguments invite us to consider factors that do not have any bearing on whether the market value of the property has changed; as a result, they are irrelevant. Second, plaintiff asserts that her sibling s ’ failure to remediate the permit violations itself constitutes waste. Although we agree that it might constitute waste if it substantially diminished the market value of the property, plaintiff has offered no evidence as to whether it did.11 DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

.

______________________, J. HOFFSTADT

We concur:

_________________________, P. J. LUI

_________________________, J. CHAVEZ