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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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, Michelle Williams, Judge. Affirmed.

April A. Murray 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. Facts1

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, James Earl 

Hull, Augustus 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 property was taken by plaintiff and Annie 

Hull, as joint tenants. Annie Hull, the family matriarch, lived 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. The 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 at 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 occasionally 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 those 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 that two of the family members—Patricia 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 

accounting. 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 Duplantier, James Earl Hull, Joyce Ann Hull, 

and Augustus 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 

property would stay in the family for use by the family” and that 

“[p]artition by sale would breach this agreement.” The court 

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 property 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 joint 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.5th 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 (1963) 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 into 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 otherwise indicated.
6

intent of the [family]” in putting title to the property in all of the 

siblings’ names in 2000 “was that the house was ‘for the family’” 

and to ensure that the family members “would have a place to 

go.” The 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. The 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 distinguishing 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, Joyce 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.
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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 factual 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 

holding]; 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 she 
8

would never have agreed 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 decline 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 taxes, paid 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 findings 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 contends 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 overrides 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.)

Fourth, 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 statement 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 presumptively 

accurate summary of 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 “‘substantial depreciation [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 substantial depreciation in the 

market value of the property, and that finding is supported by 

substantial evidence. There was evidence that the property was 
10

in “bad condition” in 2016, but there was no evidence of its 

condition or value at other prior points 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 terminate joint 

tenancy].)

Plaintiff offers two arguments in response. First, she 

argues that the trial court erred by looking 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 siblings’ 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