1 Filed 1/16/14 Coachella Valley Water Dist. V. McMaken CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOURTH APPELL ATE DISTRICT DIVISION TWO

COACHELLA VALLEY WATER DISTRICT, Plaintiff and Respondent,

v. JOAN McMAKEN as Trustee, etc., Defendant and Respondent; JAMES GERARD et al., Defendants and Appellants; NICHOLAS GERARD et al., Defendants in Intervention and Respondents. E053851 (Super.Ct.No . CIVSS816045)
OPINION

APPEAL from the Superior Court of Sa n Bernardino County. David Cohn, Judge. Affirmed. Mahaffey & Associates and Douglas L. Mahaffey for Defendants and Appellants.2 Farmer & Ridley, Richard D. Cleary; Oliver, Sandifer & Murphy, Duff Murphy, and Jennifer L. Pancake for Defendant and Respondent. Dabney B. Finch; Lieber g, Oberhansley, Strohmey er & Garn and William H. Strohmeyer for Defendants in Intervention and Respondents.
I INTRODUCTION In this eminent domain action, appe llants and defendants James Gerard and Patricia Gerard (referred to collectively as James Gera rd) appeal summary judgment entered against them and in favor of defe ndants and respondents, Joan C. McMaken, individually and as successor trustee of the Dennis Cooney Living Trust (referred to as McMaken) and Nicholas and Ricar do Gerard (collectively referre d to as the Gerard sons). The trial court granted McMaken’s motion for summary adjudication, deeming it a motion for summary judgment because it dispos ed of James Gerard’s entire claim to the condemnation proceeds. 1 The trial court concluded it wa s undisputed James Gerard had no enforceable interest in the undeveloped real property that is the subject of the instant eminent domain action (Property), because his property interest is barred by the statute of frauds. Therefore he is not entitled to any co mpensation for the taki ng of the Property by Coachella Valley Water District (Coachella). James Gerard contends his interest in th e Property is not barred by the statute of frauds because it is based on an oral assignmen t of a partnership or joint venture interest

1 We therefore refer to McMaken’s motion in this opinion as a summary judgment motion and treat it as such, as did the trial court.3 to share in the profits from the sale of the Property, and such an interest is personal property, which is not subject to the statute of frauds. James Gerard argues that the issues of whether there was a joint venture or part nership interest and whether there was an enforceable verbal assignment of a personal property interest in the Property , rather than a real property interest, are triable issues of fact. McMaken and the Gerard sons argue James Gerard’s appeal is moot because he did not appeal the interlocut ory judgment apportioning the condemnation proceeds. We disagree. James Gerard’s appeal is not moot because the stipulated apportionment judgment was entered after the trial cour t granted summary judgment against James Gerard. On the merits of James Gerard’s appe al, we conclude it is undisputed that James Gerard was orally assigned a 50 percent owners hip interest in the Property and, since the assignment was not in writing and concerned a real property interest, the assignment is unenforceable under the statute of frauds. We therefore affirm summary judgment against James Gerard because his claim to the Property and condemnation proceeds is barred by the statute of frauds as a matter of law. We need not address James Gerard’s other contentions since summary judgment wa s proper based on the statute of frauds.
II FACTS Dennis Cooney acquired title to the Prop erty located in La Quinta, with the4 assistance of Richard Meyer. On March 30, 1987, Richard Gerard 2 entered into a written, signed agreement with Cooney, entitle d “Sale Agreement” (referred to in this opinion as the “Sale Agreement”). The Sale Agreement states that Cooney and Richard agreed that: “Cooney hereby se lls to GERARD 50% ownership interest” in the Property for $40,500, with title to the Prope rty to remain in Cooney’s name. According to Meyer’s testimony, Cooney did not have the funds to purchase the Property. The purchase price was approximat ely $81,000. Richar d provided $81,000 in funds for the down payment to purchase the Property and the installment payment on the remaining note. Title to the Property was to remain in Cooney’s name because Richard participated in illegal bookmaking activities. In June 1989, Richard told his brother, James, he was tr ansferring all of his assets to James, including his interest in the Property under the Sa le Agreement. Richard gave James a copy of the Sale Agreement and the ke ys to his safe deposit box, where the Sale Agreement and other assets were located. At the time, Rich ard believed criminal charges against him were imminent. James testified that Richard told him that he wanted his assets transferred to James because “[h]e didn’ t want to have any a ssets that could be attached to him”; “so they don’t become part of any legal proceedi ngs against him should he [become] involv ed in some sort of legal case because of his bookie activity.” After disposing of his assets, Richard was charged in February 1990, with bookmaking crimes, allegedly committed betwee n April 4, 1989, and June 14, 1989. In

2 We refer to Richard Gerard and James Gerard in their individual capacity by their first names, since they share common last names.5 July 1990, Richard pled guilty to one count of felony bo okmaking, based on accepting bets on professional sports ga mes in May 1989, which was a month before Richard told James he was transferring his interest in the Property to Jame s. Richard died unexpectedly in July 1990. In September 2001, Cooney, who was dying of cancer, tran sferred his interest in the Property to his living trust, entitled “Denni s Cooney Living Trust” (the trust). No mention is made in the trust of James’s inte rest in the Property. The trust, however, directed the payment of $100,000 to be made to James when the Pr operty was sold, and for the balance of the sale proceeds to be paid pursuant to the “p reexisting agreement” (the Sale Agreement). After Cooney died in Ap ril 2002, his sister, McMaken, became successor trustee of the trust, sole beneficiar y, and owner of Cooney’s interest in the Property. In July 20 07, McMaken, as trustee, paid Ja mes $100,000 from Cooney’s trust, even though the Property had not yet been sold. In November 2007, Coachella filed the instant eminent domain action to take the Property for a water recharge facility. McMaken and James Gerard were named as defendant claimants to the Pr operty. James Gerard and Mc Maken filed answers to the complaint. Upon becoming aware of the eminent domain action, Richard’s sons intervened in the action and file d an answer to the complaint. In October 2009, the trial court entered an interlocutory judgment aw arding Coachella the Property and approving the sale of the Property for approximately $8 million. The condemn ation proceeds were deposited with the California State Treasury, leaving the sole issue of apportionment of the proceeds.6 In November 2010, McMaken filed a motion for summary adjudication of James Gerard’s answer to the emin ent domain action. McMaken argued in her motion that James Gerard had no interest in the condemnation proceeds because his claim was barred by the statute of frauds, the statute of limita tions, and the doctrine of unclean hands. James Gerard opposed McMaken’s motion, arguing it was procedurally defective, McMaken did not have st anding to challenge his interest in the Property, and the statute of frauds did not apply because James Gerard was claiming a personal property interest in the Property, not a real property interest. On January 27, 2011, the trial court heard and granted Mc Maken’s motion for summary adjudication, deeming it a motion fo r summary judgment because it disposed of James Gerard’s entire claim to the condemnation proceeds. The court granted summary judgment against James Gerard on the groun d his interest in the Property was barred by the statute of frauds and therefore James Ge rard did not have any interest in the condemnation proceeds. After granting McMaken’s motion as to James Gerard’s claim, the trial court heard and denied a second motion brought by McMaken against the Gerard sons’ claim to the condemnation proceeds. The court fo und that under the Sale Agreement, Cooney transferred a 50 percent ownership interest in the Property to Richar d, held in a resulting trust, and that interest in the Property tran sferred intestate to the Gerard sons upon Richard’s death. James Gerard filed a motion for reconsid eration of the ruling granting summary judgment against him, which the trial court denied.7 On March 7, 2011, McMaken and the Gerard sons stipulated to apportionment of the proceeds, and the stipulation was entered as judgmen t on March 8, 2011 (apportionment judgment). On April 28, 20 11, the trial court executed and filed judgment on McMaken’s summary judgment motion granted against James Gerard.
III APPEAL IS NOT MOOT McMaken and the Gerard sons contend this appeal is moot because James Gerard did not appeal the March 8, 2011 apportionment judgment, wh ich determined the amount of the condemnation proceeds to be paid to each defendant claimant. A. Procedural Background Relati ng to Whether Appeal Is Moot When Coachella filed its eminent dom ain action, it deposited the estimated condemnation proceeds with th e State Treasurer’s Office. In 2008, Coachella took possession of the Property pursuant to an or der for prejudgment possession. In October 2009, the trial court entered an interlocut ory judgment in the action, authorizing Coachella to acquire the Property by eminent domain. The parties, including Coachella, McMaken and James Gerard, agreed that the fair market value of the Property was $8.1 million, and this amount was the total just co mpensation, award, and damages to be paid for the taking of the Property. The October 2009 interlocut ory judgment further stated that McMaken and James Gerard had not resolved their differen ces regarding their respective rights to compensation awarded for the Pr operty. Therefore the issu e of apportionment of the condemnation award between McMaken and Gerard, and a determination of their8 respective rights to the Property and compensation awards rema ined to be decided by the trial court. Upon deposit of the require d amount of condemnation proceeds, the trial court entered a final order of condemnation fo r the Property, condemned in fee simple for the public use, and Coachella took fee simple title to the Property, with all defendants’ interests and title in the Property terminating. The trial court retained jurisdiction for purposes of determining the interests of Mc Maken and James Gerard in the Property and to apportionment of the condemnation award. Several months later, the Gerard sons intervened in the action. The trial court heard and granted McMa ken’s summary judgment motion against James Gerard on January 27, 2011. The court noted that the motion was actually a motion for summary judgment because, as is commonly the case with eminent domain actions, the taking of the Property and setting of just compensation had already concluded and the only remaining issues were those of th e parties’ rights to distribution. The court concluded that since James Gerard did no t have any interest in the Property or condemnation proceeds, judgment should be entered against hi m and his claim dismissed. The other defendants’ claims to the cond emnation proceeds proceeded to trial and were settled on March 7, 2011. The Gerard s ons and McMaken stipulated in court to the division of the condemnation pr oceeds and, on March 8, 2011, the trial court entered a stipulated judgment of ap portionment, incorporating the terms of the settlement agreement. James Gerard di d not appeal the March 8, 20 11 apportionment judgment.9 On March 15, 2011, the State of Californi a issued a check to the Gerard sons and their attorney for their stipul ated portion of the condemna tion proceeds ($2.225 million), in accordance with the ap portionment judgment. On April 28, 2011, the trial court entered and filed judgment on McMaken’s motion for summary judgment against James Ge rard. In the judgment, the court ordered and decreed that James Gerard had no interest in the Proper ty and was not entitled to any portion of the eminent domain award for Coac hella’s taking of the Property. James Gerard filed a notice of appeal of the April 28, 2011 judgment.
B. Discussion McMaken and the Gerard sons (respondents) argue James Gerard’s appeal is moot because James Gerard did not appeal the Ma rch 8, 2011 apportionment judgment, which determined the distribution of the condem nation proceeds and brought the eminent domain action to a final conclusion. Responde nts assert that, because the apportionment judgment is final and the condemnation proceed s have been distributed, there would be no effective relief if this court decided the instant appeal in James Gerard’s favor. Generally, an appeal is moot if there is no longer a justiciable controversy. “California courts will decide only justiciable controversies. [Citati ons.] The concept of justiciability is a tenet of common law jurisprudence and em bodies ‘[t]he principle that courts will not entertain an ac tion which is not fou nded on an actual controversy . . . .’ [Citations.] Justiciability thus ‘involves the intertwined criteria of ripeness and standing. A controversy is “ripe” when it has reached, but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made.’10 [Citation.] But ‘ripeness is not a static state’ [citation], and a case th at presents a true controversy at its inception becomes moot ‘“if before decision it has, through act of the parties or other cause, occurring after the comme ncement of the action, lost that essential character.”’” ( Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1573 ( Wilson ); see also Lockaway Storage v. County of Alameda (2013) 216 Cal.App.4th 161, 174 ( Lockaway ).) Here, there remains the justiciable issue of whether James Gerard has any interest in the Property and, if so, what portion of the condemnation proceeds James Gerard is entitled to receive. Although the proceeds have been distributed to respondents, this does not preclude James Gerard from seeking reimbur sement for the portion of proceeds that should have been distributed to him in the event this court reverses summary judgment. On the other hand, the effect of dismissing Ja mes Gerard’s appeal as moot would result in finality of the determination that James Ge rard has no interest in the condemnation proceeds and preclude James Gera rd from recovering his shar e of the proceeds. Even though the proceeds have been apportioned and distributed, the essential character of the controversy in the instant case has not been lost as to James Gerard’s claim to the proceeds. “The pivotal question in de termining if a case is moot is therefore whether the court can grant the plaintiff any effectual relie f. [Citations.] If events have made such relief impracticable, the controversy has beco me ‘overripe’ and is therefore moot.” ( Wilson, supra, 191 Cal.App.4th at p. 1574; Lockaway, supra, 216 Cal.App.4th pp. 174- 175.) By the same token, an appeal is moot if “‘the occurrence of events renders it11 impossible for the appellate court to gr ant appellant any effective relief.’” ( Santa Monica Baykeeper v. City of Malibu (2011) 193 Cal.App.4th 1538, 1547; Lockaway, at p. 175.) (1) Effective Relief Respondents argue entry of the apportio nment judgment and di stribution of the condemnation proceeds precludes any effective relief. We disagree. There remains the possibility of effectual relief upon remandi ng the matter to the trial court for determination of whether James Gerard has an interest in the Property and his share of the proceeds. Although the court entered a final, stipulated judgment determining the division of the condemnation pr oceeds, the court did not addr ess James Gerard’s claim to the proceeds because he was excluded as a potential claimant through summary judgment. Respondents assert that the trial court no longer ha s jurisdiction over the matter because the trial court entered a final apportionment judgment , resulting in distribution of the condemnation proceeds. But if James Gera rd prevails on his appeal, the trial court will still have jurisdiction to d ecide the justiciable issue of whether James Gerard has any interest in the Property and condemnation proc eeds, and if so, the portion of the proceeds is he is entitled to receive. Although the proc eeds are no longer de posited with the state treasurer’s office, James Gerard could reco ver his share through judgment enforcement proceedings. Respondents further argue James Gerard was required to appeal, not only the April 28, 2011 summary judgment, but also the March 8, 2011 ap portionment judgment. But James Gerard was not a real party in inte rest when the appor tionment judgment was12 entered because summary judgment had been granted against him in January 2011. James Gerard therefore was not required to appeal the March 8, 2011 apportionment judgment, nor could he, because summary ju dgment terminates the action between the parties. In turn, James Gerard also did not have standing to appeal the March 8, 2011 stipulated apportionment judgment. A person who was a party but ceased to be a party as a result of dismissal from the action ordi narily has no appellate standing. ( Bates v. John
Deere Co. (1983) 148 Cal.App.3d 40, 53 [would-be appellant initially became a party by complaint-in-intervention but its complaint was thereafter dism issed at its request]. In the instant case, James Gerard was no longer a party for purposes of standing to appeal the March 8, 2011 apportionm ent judgment because summar y judgment had previously been granted against him. Respondents argue that under Code of Civil Procedure section 1250.220, subdivision (d), 3 the apportionment judgment is binding and conclusive on James Gerard. Section 1250.220, subdivision (d) states: “A judgment re ndered in a proceeding under this title is binding and conclu sive upon all persons named as defendants as provided in this section and properly served.” Here, however, the judgment was entered after James Gerard was no longer a party to the apportio nment proceedings beca use the trial court granted summary judgment against him. As a consequence, the apportionment judgment was not binding or conclusive on James Gerard.

3 Unless otherwise noted, all statutory references are to the Code of Civil Procedure.13 Respondents’ reliance on Mendocino County v. Peters (1905) 2 Cal.App. 34, for the proposition James Gerard’s appeal is moot, is misplaced as well. In that case, the defendant claimant in a condemnation procee ding appealed a condemnation order and an order granting the plaintiff possessi on of the condemned Property. The Peters court affirmed the condemnation order but dismis sed the appeal to the order granting possession of the Property, as moot, because th e first order passed title and the right of possession to the plaintiff. In the instant case, there is no dispute or challenge to the condemnation judgment or to the orders an d interlocutory judgmen ts passing title, right of possession, and determination of the amount of just compensation to be paid by the plaintiff. Unlike in Peters , here, the sole remaining issue is apportionment of the condemnation proceeds. The apportionment judgment did not address James Gerard’s claim, since summary judgment had been gran ted against him. Therefore, if the matter were remanded to the trial court, determinatio n of whether James Gerard has an interest in the condemnation proceeds co uld be adjudicated. Appor tionment was determined only as to respondents. Respondents’ reliance on First Federal Bank of California v. Fegen (2005) 131 Cal.App.4th 798, is misplaced. The case invo lved a judgment which resulted in the sale of defendant Fegen’s real property before the appeal was decided. This rendered Fegen’s appeal moot because the proper ty sale was absolute and c ould not be set aside for any reason under section 701.680, subdivision (a). The instant appeal does not concern the erroneous, irreversible sale of real proper ty. Rather, it concerns the apportionment and distribution of condemnation proceeds which are not unique, one-of-a-kind property and14 therefore can be redistributed, taking into co nsideration James Gerard’s additional claim, which was excluded and thus not taken into account when the apportionment judgment was entered. Although the appropriation j udgment is final as between McMaken and the Gerard sons, it is not final and binding on James Gerard because there was never a final determination as to his intere st in the Property and share of the condemnation proceeds. If successful on appeal, James Gerard would be entitled to ad judication of his claim and the previous apportionment judgment would no t preclude such determination or relief as to the conflicting interests of James Gerard and the Gerard sons in the Property and condemnation proceeds. (2) In Rem Jurisdiction Respondents argue that on ce the condemnation proceeds were distributed, the trial court lost jurisdiction over th e case because the eminent domain action is an in rem proceeding, in which jurisd iction is founded on the res or property. Once the res is gone, the trial court no longer has in rem jurisd iction of the matter. This proposition has no merit, as rejected in Republic National Bank of Miami v. U.S. (1992) 506 U.S. 80, 84-86. As the court in Republic National Bank explained with regard to in rem forfeiture proceedings: “Certainly, it long has been understood that a valid seizure of the res is a prerequisite to the initiation of an in rem civil forfeiture procee ding. [Citations.]” ( Id. at p. 84.) The court in Republic National Bank further noted, however, that retention of the res throughout the proceedings is not nece ssary to maintain ju risdiction over an in rem forfeiture action. Jurisdiction, once vested, is not divested, although in some cases there15 might be an exception to the rule where the release of th e property would render the proceedings moot. ( Ibid. ) The res in the instant emin ent domain action is the Property, not the condemnation proceeds. The sale of the Property and di stribution of the pro ceeds did not terminate jurisdiction over the remaining issue of determ ination of James Gerard’s interest in the condemnation proceeds. If this court were to remand this matter to the trial court, the trial court would still have jurisdiction to dete rmine whether James Gerard has an interest in the Property. The interlocutory order apportioning the proceeds between McMaken and the Gerard sons was not conclusive and final as to James Gerard becau se summary judgment had been granted against him and he was no longer a real party in interest to the apportionment proceedings at the time of entr y of the apportionment judgment. The trial court therefore retained subject matter juri sdiction over James Gerard’s claim, even though the proceeds we re prematurely distributed before James Gerard’s claim to the proceeds was resolved. This ap peal is not moot because, if summary judgment against James Gerard is reversed, James Gerard can obt ain effective relief in the form of a trial court adjudication of his interest in th e Property and condemnation proceeds. A judgment in James Gerard’s favor, declar ing James Gerard to have title to the condemnation proceeds superior to the Gerard sons’ intestate interest, could thereafter be enforced through judgment enforcement proceedings.16 IV SUMMARY JUDGMENT James Gerard contends the trial cour t erred in granting McMaken’s motion for summary adjudication against him. A. Summary Judgment Standard of Review “[T]he party moving for summary judgmen t bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” ( Aguilar v. Atlantic Richfield Co . (2001) 25 Cal.4th 826, 850, fn. omitted.) “Once the [movant] has met that burden, the burden shif ts to the [other party] to show that a triable issue of one or more mate rial facts exists as to that cau se of action . . . .” (§ 437c, subd. (p)(2); Aguilar, at p. 850.) The party opposing summary judgment “may not rely upon the mere allegations or denials of its pleadings,” but rather “shall set forth the specific facts showing that a triable issue of ma terial fact exists . . . .” (§ 437c, subd. (p)(2).) A triable issue of material fact exists where “the ev idence would allow a reasonable trier of fact to find the underlying fact in fa vor of the party opposing the motion in accordance with the applicable standard of proof.” ( Aguilar, at p. 850.) We affirm summary judgment where it is shown that no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (§ 437c, subd. (c).) Where summary judgment has been granted, we review the trial court’s ruling de novo. ( Aguilar, at p. 860.)17 B. The Right to Recover Condemnation Proceeds The takings clause of the Fifth Ame ndment guarantees the right to not have property taken without just compensation. ( National City Business Assn. v. City of National City (1983) 146 Cal.App.3d 1060, 1065.) “‘ The state’s power to take property by eminent domain is conditione d on its obligation to pay “j ust compensation” to the owner.’” ( City and County of San Francisco v. Coyne (2008) 168 Cal.App.4th 1515, 1521.) Only an “owner of property acquired by em inent domain is entitled to compensation.” (§ 1263.010, subd. (a).) This includes anyone who has a legal or equitable interest in the property desc ribed in the eminent domain complaint. (§ 1250.230 , subd. (a).) McMaken’s motion for summary judgment was between defendants asserting conflicting claims to the Property condemnation proceeds. In effect, the claimants were asserting cross-claims agains t each other as to their shar e of the condemnation proceeds but, under section 1260.220, “defendants with conflicting inte rests in condemned property [may] litig ate their adverse claims in th e condemnation award without the necessity of filing a cross-complaint.” ( County of San Diego v. Miller (1980) 102 Cal.App.3d 424, 432.) The trial court was requi red to resolve the conflicting interests in the Property and apportion the proceeds among the claimants in accordance with their respective rights and interests in the Property. (§ 1260.220.) As the moving party, McMaken had the burden of establishing th at James Gerard had no valid ownership interest in the Property. Upon McMaken me eting that burden, th e burden shifted to18 James Gerard to produce evidence that he had a legal or equita ble interest in the Property, thereby raising a triable issue of fact as to his right to condemnation proceeds. C. The Statute of Frauds The trial court granted McMaken’s su mmary judgment motion against James Gerard on the ground he did not have any inte rest in the Property based on the statute of frauds. Under the statute of frauds, an agreem ent for transfer of an interest in real property is invalid unless it “or some note or memorandum thereof, [is] in writing and subscribed by the party to be charged. ” (Civ. Code, § 1624, subd. (a).) James Gerard argues that McMaken cannot rely on the statute of frauds in her summary judgment motion because she did not a ssert it as an affirmative defense in her answer to the eminent domain co mplaint. McMaken was not requ ired to file an answer to codefendants’ answers or cross- complain against codefendants . This is because eminent domain actions are unique proceedings in wh ich “[t]he plaintiff may require that the amount of compensation be first determined as between plaintiff and all defendants claiming an interest in the prop erty. Thereafter, in the same proceeding, the trier of fact shall determine the respective rights of the defendants in and to the amount of compensation awarded and shall apportion th e award accordingly.” (§ 1260.220, subd. (b).) The purpose for requiring a defendant in a condemnation action to set forth his interest in the condemned prop erty by way of answer is to enable the condemner to acquire clear title to property needed for pub lic purposes as expediently as possible. ( Redevelopment Agency v. Penzner (1970) 8 Cal.App.3d 417, 423.) Eminent domain19 actions are special proceedings, in which the rules of pleading (§§ 1250.320 and 1260.220) are streamlined “by making it possible for defendants having conflicting interests in property condemned by a public agency to litigate their adverse claims to the condemnation award without the necessity of filing cross-complaints.” ( Penzner, at p. 423.) As defendants in the eminent domain action, both McMaken and James Gerard filed answers to the complaint st ating the extent of their inte rests in the Property. Under section 1250.320, subdivision (a), this was al l that was required to be pled by those claiming an interest in the property. McMaken was not required to allege affirmative defenses against codefendants’ claims in her answer to th e eminent domain complaint. ( Penzner, at p. 423.) Even though McMaken did not include in he r answer the statute of frauds as an affirmative defense, it was clear from the na ture of the eminent domain action and the respondents’ answers to the complaint that they were cl aiming an interest in the condemnation proceeds and opposing any conf licting interests. Furthermore, James Gerard was on notice of the statute of frauds de fense to his claim because the Gerard sons alleged it in their answer and McMaken rais ed it in her motion fo r summary judgment. “[‘I]t would be unfair to ground a ru ling on the inadequacy of the pleadings if the pleadings, read in the light of the facts adduced in the summary judgment proceeding, give notice to the plaintiffs of a potentially meritorious defense.” ( FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384-385; Thornton v. Victor Meat Co. (1968) 260 Cal.App.2d 452, 461.)20 As to the merits of McMaken’s summary judgment motion, McMaken met her burden of producing evidence that James Ge rard’s claim was barred by the statute of frauds, and James Gerard failed to re fute the statute of frauds bar. (1) Cooney’s Sale of a 50 Percent Ownership Interest in the Property to Richard It is undisputed James Gerard’s interest in the Property is founded on Richard’s purchase of a 50 percent interest in the Prope rty from Cooney in 1987. A copy of a grant deed dated March 3, 1987, and recorded on April 1, 1987, s hows that title to the Property was transferred to Cooney. A written agreement, entitled, “SALE AGREEMENT,” dated March 30, 1987, states that it was agreed between Cooney an d Richard that: “1) Cooney hereby sells to GERARD 50% ownership interest in the pa rcels [the Property] for the sum of $40,500. [¶] 2) Said sale is s ubject to the Option Agre ement between Cooney and Meyer dated March 1, 1987. [¶] 3) As a matte r of convenience, title to the properties shall remain in Denn is Cooney’s name. [¶] 3A) C ooney agrees th at should he become married, he will obtain a quit claim deed from his spou se. [¶] The decision for disposition of the property sha ll rest solely with Dennis C ooney.” The Sale Agreement was signed by both Richard and Cooney. Cooney’s transfer to Rich ard of a 50 percent ownership interest in the Property is further reflected in a written agreement sign ed by Cooney and his wife, Kathryn Cooney, on December 1, 1989, stating that the Proper ty, “which is owned by Richard Gerard and Dennis Cooney, should it be sold, the initia l $80,000.00 goes to Ri chard Gerard. The remainder over and above the initial $80,000.00 is to be divided as per the original Agreement. In case of the death of Denn is Cooney, Kath ryn Wayman Cooney will see21 that this transaction takes place.” It was agreed Richard would be paid the initial $80,000 because this the approximate amount he pa id to fund the purchas e of the Property. (2) Alleged Oral Transfer of Property to James James Gerard argues that his 50 percent in terest in the Property is not barred by the statute of frauds because his interest is founded solely on Richard’s assignment to James of his partnership interest in receiving profits from the sale of the Property. James Gerard acknowledges that “[i] t is undisputed that the Ge rards[’] claim that they are assignees of Rick Gerard’s interest arisi ng from the Sale Agreement between Cooney and Rick Gerard.” James Gerard argues that th e Sale Agreement “formed a joint venture or resulting trust to share in the profits, not a c onveyance of real propert y interest. As such the Statute of Frauds does not prohibit a verb al assignment from Rick to James of Rick’s share.” James Gerard has failed to cite any evidence supporting this contention. As explained in Kaljian v. Menezes (1995) 36 Cal.App.4th 57 3, a joint venture or partnership agreement to share the profits from a transaction involving real estate is not required to be in writing. ( Id. at p. 585.) However, an agreement to transfer a real property interest from one joint venturer to an other contravenes the statute of frauds if not in writing. ( Id. at pp. 586-587.) Regardless of whether Cooney and Richard formed a joint venture or partnership, it is undisputed the statute of frauds bars James Gerard’s interest in the condemnation proceeds because his claim is founded on an oral agreement transfer to James, of Richard’s 50 percent ownership interest in the Property under the Sale Agreement. The Sale Agreement is not a partnership or joint venture agreement merely to share the profits from the sale of the Property. Richard’s right to profits from22 the sale of the Property was founded on hi s purchase under the Sale Agreement of a 50 percent ownership interest in the Property. It is undisputed that, even if the Sale Agreement created a joint venture or partnershi p, the agreement provided for the sale of a 50 percent ownership interest in real property to Richard, and therefore the statute of frauds applied to Richard’s subsequent oral agre ement in 1989 to transf er that interest in the Property under the Sa le Agreement to James. (3) James Gerard’s Efforts to Claim Ri chard’s Interest in the Property After Richard’s death in July 1990, James Gerard initiated various litigation, claiming a 50 percent ownership interest in the Property unde r the Sale Agreement. In October 2005, James Gerard filed a co mplaint for partition and imposition of a constructive trust against McMaken. James Gerard also filed a notice of lis pendens giving notice that he had filed an action asserting a real prop erty claim to the Property. James Gerard alleged in his complaint for par tition that he and his wife “are the assignees of [Richard] who assigned all his right, title a nd interest to plaintiff James N. Gerard, a married man, to that certain contract da ted March 30, 1987 between Rick Gerardo [ sic ] and Dennis Cooney.” James Gerard also alle ged that, pursuant to the terms of the Sale Agreement, Cooney sold to Ri chard a 50 percent ownership interest in the Property for the sum of $40,500. Richard “also loaned to Dennis Cooney the other portion of the purchase price totaling $40,000. Richard Ge rard assigned his full 50% to James Gerard who now is the owner of 50% of the profits from the sale of the Subject Property.” James Gerard further alleged that James and his wife, “as assignees of Richard Gerard own in Fee Title an undivi ded 50% interest in and to the Subject Property.”23 James Gerard later amended his partition co mplaint, omitting the allegation that he had a 50 percent ownership interest in the Pr operty, and replacing it with allegations that James Gerard’s interest in the Property consisted solely of a partnership interest in the profits from the sale of the Property. In February 2009, James Gerard dismissed his complaint for partition after the trial court issued a tentative ruling granting McMaken’s motion for summary judgment based in pa rt on the statute of frauds barring James Gerard’s claim to an interest in the Propert y. James Gerard’s amended complaints for partition misconstrue the Sale Agreement as a part nership agreement. The terms of the Sale Agreement do not create a partnership. The sale agreement simply states that Richard purchased a 50 percent owne rship interest in the Property. Meanwhile, in October 2007, James Gerard also filed a verified petition for an order to convey real property under Probate Code section 850, and request for equitable relief (probation petition). James Gerard alle ged the following facts. In 1990, Richard assigned to James the Sale Agreement. Un der the Sale Agreement, Cooney and Meyer agreed to sell Richard a 50 percent ownership in terest in the Property and profits derived from the sale of the Property in excess of the $80,000 purchase price. Richard told James he was “going to immediately unconditionally tran sfer certain assets to [James]. He then transferred all his significant assets, including a ll rights, and interests in the profits of the Subject Property and all rights arising out of the Subject Co ntract [Sale Agreement] to [James]. He communicated clearly and unequi vocally that as of that moment he was divesting himself permanently of all rights th ereto. He delivered a copy of the Subject Contract to [James], turned over the keys to a safe deposit box where the original was24 located and instructed [Jam es] to empty the safe depos it box and take permanent possession of all its contents.” James Gerard alleged that from that point onward, James exercised full ownership rights over the Sale Ag reement, and the other assets transferred to him, and that Cooney had written multiple documents confirming that he recognized James’s ownership interest in the Property. James Gerard filed an ame nded probate complaint, re treating from his previous allegations that he had a 50 pe rcent ownership interest in th e Property and alleged he was entitled to disbursement of his share of jo int venture proceeds arising out the Sale Agreement, which was allegedly a “joint vent ure agreement.” In September 2009, James Gerard dismissed the probate action. James Ge rard again attempts to construe the Sale Agreement as something other than an agreement to sell Richard a 50 percent ownership interest in the Property. The Sale Agreem ent is neither a partnership agreement nor a joint venture agreement. “A joint venture has been broadly defined as an association of two or more persons who combine their proper ty, money, efforts, skill or knowledge to carry out a single business enterp rise with the objective of realizing a profit. [Citations.] ( Simmons v. Ware (2013) 213 Cal.App.4th 1035, 10 54.) The Sale Agreement does not state that the parties to the agreement were creating a partnership or joint venture. Cooney was merely transferri ng a 50 percent interest in the Property to Richard in exchange for Richard’s payment of $40,500. James Gerard acknowledged in his initial complaint for partition, his initial probate petition, and his answer to the in stant eminent domain action that the Sale Agreement was simply a real property sale ag reement, in which Coon ey agreed to sell to25 Richard a 50 percent ownership interest in th e Property. This real property interest was the basis of James Gerard’s allegation in hi s answer to the eminent domain action that, “[i]n compliance with Code of Civil Procedure § 1250.320, [James Ge rard] states [James and his wife] are claimants to a fifty percent in terest in the real property.” James Gerard is bound by his allegation in his answer th at the basis of his claim to condemnation proceeds is his 50 percent ownership interest in the real Property. James Gerard’s alleged interest in the Property is invalid and unenforceable under the statute of frauds. Furthermore, James testified that, based on the Sale Agreement, he believed Richard orally transferred to James his 50 percent owne rship interest in the Property, resulting in James becoming an owner of a 50 percent inte rest in the Property. James acknowledged that Richard never put in writing or signe d a document confirming that Richard was transferring his rights to the Property under the Sale Agreement. McMaken met her burden of establishing that the Sale Agreement was not a partnership or joint venture agreement to share the proceeds from the sale of the Property. Rather, under the Sale Agreem ent, Cooney transferred a 50 pe rcent ownership interest in the Property to Richard, and that interest was what Richard orally assigned to James. Since the assignment of Richard’s ownership in terest in the Property was verbal, and not in writing, it is unenforceable and barred by the statute of frauds as a matter of law. (4) James Gerard’s Oppositi on to Summary Judgment The burden shifted to James Gerard to produce evidence of specific facts showing a triable issue refuting the statute of frauds ba r. James Gerard failed to meet his burden. James Gerard concedes his inte rest in the condemnation pro ceeds is founded on an oral26 agreement. It is undisputed that the oral agreement was to transfer Richard’s 50 percent ownership interest in the Property. That oral agreement is unenforceable under the statute of frauds as a matter of law. It is thus undisputed James Gerard has no valid, enforceable interest in the condemnation proceeds. Apparently recognizing the statute of fra uds impediment, James Gerard bases his right to condemnation proceeds on construing the Sale Agreement as a partnership agreement to share the proceeds in the sale of the Property. But James Gerard has failed to provide any evidence supporting this cont ention. None of the documents cited by James Gerard establish that under the Sa le Agreement Richard merely received a partnership interest in the sale proceeds, as opposed to receiving an ownership interest in the Property. James Gerard relied on the following evidence in support of his contention the statute of frauds did not appl y because Richard orally assi gned to James his partnership interest in 50 percent of the profits from the sale of the Property, rather than a real property interest in the Prop erty: (1) Cooney’s notes prepared in connection with his divorce, regarding potential sale proceeds disbursements related to the sale of the Property. The spreadsheet notes state that $ 40,000 of the anticipated proceeds would be paid to Richard, with an ad ditional $20,000 paid to Richard’ s “brother,” if found; (2) An accounting statement by Meyer, dated August 1, 1999, of the anticipat ed profits from the pending sale of the Property. The accoun ting statement indicates that James had an interest in the Property proceeds based on the notation: “After tax Cash(excluding Rick’s Bro).”; (3) Cooney’s handwritten instructions, dated September 19, 2 001, stating that in27 his will he was leaving Richard’s brother, Jame s, $100,000. Cooney stated that, if James
could not be found or had died , the money was not to go to any of Richard’s other heirs, including his sons. The money would go to Cooney’s sister, Mc Maken.; (4) Cooney’s handwritten note, regarding anticipated sale pr oceeds from the Property and disbursement of the proceeds, which states “Rick Gerard’s brother gets $40,000”; (5) A letter dated April 4, 2003, from McMaken to James, stati ng that Cooney died and had instructed in his trust to pay James $100,000 as a gift, in remembrance of James’s brother, Richard, who was a friend of Cooney. None of these documents refutes the fact that James Gerard’s interest in the Property is barred by the statute of frauds. These documents do not es tablish that Richard transferred to James a partnership interest or joint venture interest in the Property sale proceeds, as opposed to a 50 percent owners hip interest in the Property under the Sale Agreement. James Gerard’s reliance on Bates v. Babcock (1892) 95 Cal. 479, for the proposition that Richard’s intere st in the Property sale procee ds was transferable to James in the absence of a written agr eement, is misplaced because th ere is no evidence that the Sale Agreement was merely a partnership agre ement to share the proceeds from the sale of the Property. It is undisputed the Sale Agreement transferred a 50 percent ownership interest in the Property to Richard. This ownership interest woul d have entitled him to 50 percent of the profits from the sale of the Property, regardless of any partnership agreement. Since there was no written agreement transf erring Richard’s ownership interest in the Property to James, it is unrefuted that James Gerard’s claim to the Property is28 unenforceable and barred by the statute of frauds. Under Civil Code section 1624, subdivision (a), “The followi ng contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party’s agent: [¶] . . . [¶] (3 ) An agreement for . . . the sale of real property, or of an interest therein.” In addition, section 1971 provid es: “No estate or interest in real property . . . nor any power over or concerning it, or in any manner relating thereto, can be created, granted, assigned, surrendered, or declared, otherwise than by operation of law, or a conveyance or other instrument in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same , . . .” Civil Code section 1091 further provides: “An estate in real property, othe r than an estate at will or for a term not exceeding one year, can be tran sferred only by opera tion of law, or by an instrument in writing, subscribed by the party disposin g of the same, or by his agent thereunto authorized by writing.” Under these statut ory provisions, Richard could not legally transfer his real property interest in the Proper ty to James, unless he did so by means of a signed writing. It is undisputed there was no signed writing. Regardless of whether Richard and Cooney formed a partnership or joint venture, it is undisputed Richard had an ownership in terest in the Property under the Sale Agreement, and James Gerard’s claim to the condemnation pro ceeds is founded on Richard’s oral representation that James was to receive that interest in the Property. James Gerard cannot circumvent the statute of frauds by converting his original claim, that he had an ownership interest in the re al Property, to an equitable one based on a29 partnership interest in the proceeds from the sale of the Property under the Sale Agreement. James testified that he did no t believe Cooney and Richard were entering into a partnership agreement wh en they executed the Sale Ag reement. Since the transfer of Richard’s ownership interest in the Pr operty to James is unenforceable under the statute of frauds, James Gerard has no righ t to any of the condemnation proceeds as a matter of law. Therefore summary judgment was proper.
V DISPOSITION The judgment is affirmed. Responde nts McMaken and the Gerard sons are awarded their costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS CODRINGTON J.
We concur:

HOLLENHORST Acting P. J.

MILLER J.