Filed 1 / 14 / 22 Ruiz

- Bouvet v. Harrison CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

VINCENT RUIZ BOUVET,

Plaintiff and Appellant

,

v.

SARA T. HARRISON,

Defendant s and Respondent

. 2d Civ. No. B304805 (Super. Ct. No. 56

- 2018

- 00515518

- CU

- OR

- VTA ) (Ventura County)

ORDER DENYING PETITION FOR REHEARING AND MODIFYING OPINION (No Change in Judgment )

THE COURT: Appellant’s petition for rehearing is denied. It is ordered that the opinion filed on December 16, 2021 be modified as
follows: On page 2, line 4, delete the entire sentence beginning “He repeated that claim . . .” and insert the following sentence
instead: Vincent tes tified t hat he repeated that claim “at the
funeral home when [ the siblings] made arrangements for [their]
mother’s burial.” On page 2, footnote 3, delete both sentences in the footnote and insert the following instead: Vincent, who is an attorney, is
an inact ive member of the California State Bar.2 On page 3, third full paragraph, second to the last sentence, delete “the next day,” so that the sentence now reads : He testified he repeated this claim to all of them at the funeral
home. On page 3, third full pa ragraph, last sentence, delete “Vincent acknowledged there was” and insert instead “Vincent produced,” so that the sentence now reads: Vincent produced nothing in writing evidencing Victoria’s intent to leave him the property, i.e., there was no will, tru st or conveyance of any kind. On page 8, second full paragraph, delete “a practicing attorney at the time” in the first sentence and insert instead “an attorney,” so that the sentence now reads: Although the trial court noted that Vincent was an attorney and had failed to give his siblings written notice of the ouster, it did not state that written notice is an absolute requirement. On page 8, second full paragraph, delete the second sentence beginning “Vincent testified” in its entirety and insert
the following sentence instead, including the quotation marks: According to the reporter’s transcript, Vincent testified: “[B]eing an attorney and handling property law, I was aware I had to take exclusive control and exclude my siblings from any

– any con trol of the house.” On page 9, second sentence, delete “the next day,” so that the sentence now reads: He claims the testimony, which was not presented in the trial court, establishes that the siblings were not upset the day their mother died or at th e funeral home. No change in judgment.

____________________________________________________________ GILBERT, P.J. YEGAN, J. PERREN, J.Filed 1 / 14 / 22 Ruiz

- Bouvet v. Harrison CA2/6

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 SIX

VINCENT RUIZ BOUVET,

Plaintiff and Appellant

,

v.

SARA T. HARRISON,

Defendant s and Respondent

. 2d Civ. No. B304805 (Super. Ct. No. 56

- 2018

- 00515518

- CU

- OR

- VTA ) (Ventura County)

ORDER DENYING PETITION FOR REHEARING AND MODIFYING OPINION (No Change in Judgment )

THE COURT: Appellant’s petition for rehearing is denied. It is ordered that the opinion filed on December 16, 2021 be modified as
follows: On page 2, line 4, delete the entire sentence beginning “He repeated that claim . . .” and insert the following sentence
instead: Vincent tes tified t hat he repeated that claim “at the
funeral home when [ the siblings] made arrangements for [their]
mother’s burial.”2 On page 2, footnote 3, delete both sentences in the footnote and insert the following instead: Vincent, who is an attorney, is
an inact ive member of the California State Bar. On page 3, third full paragraph, second to the last sentence, delete “the next day,” so that the sentence now reads : He testified he repeated this claim to all of them at the funeral
home. On page 3, third full pa ragraph, last sentence, delete “Vincent acknowledged there was” and insert instead “Vincent produced,” so that the sentence now reads: Vincent produced nothing in writing evidencing Victoria’s intent to leave him the property, i.e., there was no will, tru st or conveyance of any kind. On page 8, second full paragraph, delete “a practicing attorney at the time” in the first sentence and insert instead “an attorney,” so that the sentence now reads: Although the trial court noted that Vincent was an attorney and had failed to give his siblings written notice of the ouster, it did not state that written notice is an absolute requirement. On page 8, second full paragraph, delete the second sentence beginning “Vincent testified” in its entirety and insert
the following sentence instead, including the quotation marks: According to the reporter’s transcript, Vincent testified: “[B]eing an attorney and handling property law, I was aware I had to take exclusive control and exclude my siblings from any

– any con trol of the house.” On page 9, second sentence, delete “the next day,” so that the sentence now reads: He claims the testimony, which was not presented in the trial court, establishes that the siblings were not upset the day their mother died or at th e funeral home. No change in judgment.3

____________________________________________________________ GILBERT, P.J. YEGAN, J. PERREN, J.Filed 12 / 16 / 21 Ruiz

- Bouvet v. Harrison CA2/6 (unmodifi ed opinion)

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 SIX

VINCENT RUIZ

- BOUVET

,

Plaintiff and Appellant

,

v.

SARA T. HARRISON

, individually and as Administrator of the Estate of Victoria Ruiz

,

Defend ant and Respondent

. 2d Civ. No. B304805 (Super. Ct. No. 56

- 2018

- 00515518

- CU

- OR

- VTA ) ( Ventura County )

Appellant Vincen t Ruiz

- Bouvet (Vincent) and his three siblings, respondent Sara T. Harrison (Sara)

, Annette Ruiz (Annette) and Robert Ruiz (Robert) (collectively “siblings”)
inherited the single

- family residence owned by their mother,5

Victoria Ruiz (Victoria), when she di ed intestate in 2012

. 1 On the day Victoria died

, Vincent privately told each of his sibling s that
Victoria had given him both the property and her savings so that he would have a place to live. He repeated that claim to all his siblings at the funeral ho me the next day.
Vincent and Annette continue d to live on the property as they had prior to Victoria’s death

. Vincent made no attempt to secure sole ownership of the property until 2018, when Sara filed a probate proceeding on behalf of Victoria’s estat e

. Vincent then brought this a ction to quiet title based on adverse possession.
The case was tried by the court in November 2019

. At the
close of Vincent’s case

- in

- chief, Sara moved for judgment under
Code of Civil Procedure section 631.8

. 2 The trial court granted the motion, find ing that Vincent had “failed to meet his burden of proving by clear and convincing evidence that he gave notice to the other cotenants [i.e., his siblings] of his claim of exclusive ownership” of the propert y. It entered jud gment for Sara.
Vincent , appe aring in propria persona, 3 contends the trial court (1) applied the wrong burden of proof and improperly added an element to his adverse possession claim, (2) improperly
admitted his deposition testimony, (3) made erroneous f indings of fact, (4) made infer ences that are unsupported by the record and (5) improperly found that his te stimony did not establish all the

1 For the sake of clarity, we refer to the family members by their first names. No disrespect is intended.

2 All statutory references are to the Code of Civil Procedure.

3 Vincent was a practicing attorney at the time of trial. He is now an inactive member of the State Bar.6

elements of his adverse possession claim. None of these claims
has merit. We affirm.

FACTUAL BACKGROUND
Victo ria and Vi ncent Canalez Ruiz ac quired the property
located at 6825 Dove Street in Ventura in 1972 . They are the siblings’ parents

. Vincent Canalez Ruiz quitclaimed the property to Victoria
in 1978 . Victoria remained the sole legal owner of the propert y until her death in March 2012

. The re was no mortgage on the property and “ no known liens or encumbrances.”
Vincent and Annette lived with Victoria until her death. Annette paid the monthly utility and cable TV bills and Vincent paid $ 150 per month i n rent. On the day Victoria di ed, the distraught siblings met at the property. Vincent testified his siblings were “running around like chickens with their heads cut off and trying to get their heads around what had just happened ” and “ people [ were ] just kind of in a daze.” Vincent c laims he t ook

e ach sibling aside and explained that Victoria wanted him to have the property and that he would own it “‘to the exclus ion of each of his siblings.’” He testified he repeated this claim to all of
them at the fu neral home the next day. Vince nt acknowledged
there was nothing in writing evidencing Victoria’s intent to leave him the property, i.e., there was no will, tr ust or conveyance of any kind.
Vincent and Annette continued to live on the property, and
Anne tte continued to pay t he monthl y utility and cable TV bills. No sibling was excluded from the property.
Vincent paid the property insurance and property taxes. He also paid for certain repairs. None of the other siblings7

contributed to those expenses

. Neither Sara nor Robert obje cted to Vincent and Annette’s continued occu pancy. Because Victoria died intestate, the siblings became equal tenants in common by operation of law. Th us, as of her date of death, each sibling owned an equal one

- quarter s hare of the property as tenants in common

. (See Mannheim v. Superior
Court (1970) 3 Cal.3d 678, 691 [“ It is

. . . settled that when a decedent dies intestate, his heirs, both known and unknown, acquire an interest in hi s estate by operation of law at the
moment of death ”].) “According to the Tax Collector and Assessor records received [by the trial court], Victoria remains the legal
owner of record title. ”
DISCUSSION

A. Standard of Review Vincent misstates and misapplies the applicable standard
of rev iew. “‘The standard of review after a trial court issues judgment pursuant to

. . . section 631.8 is the same as if the court had rendered judgment after a completed trial

-- that is, in reviewing the questions of fact decided by the trial court, the
subs tantial evidence rule applies.’ ” ( Medrazo v. Honda of North Hollywood (2012) 205 Cal.App.4th 1, 10.) “Under that standard, our review begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,

to support the findings below. [ Citations.] .

. . [W]e view the record in the light most favorable to respondents, giving them the benefit of every reasonable inference and resol ving all conflicts in
their favor. [Citation.] ‘[I]t is not our role to rewe igh the evidence, redetermine t he credibility of the witnesses, or resolve conflicts in the testimony, and we will not disturb the judgment if there is evidence to support it.’” ( Williamson v. Brooks (2017) 78

Cal.App.5th 1294, 1299

- 130 0; accord People ex rel. Dept. of Motor
Vehicles v. Cars 4 Causes (2006 ) 139 Cal.App.4th 1006. 1012 [“ The purpose of [section] 631.8 is ‘ to enable the court, when it finds at the completion of plaintiff’s case that the evidence does not justify requiring the defense to produc e evidence, to weigh
evidence a nd make findings of fact ’”].)
B. Substantial E vidence Supports the Entry of Judgment

on Vincent’s Adverse Possession Claim As we explained in Preciado v. Wilde (2006) 139 Cal.App.4th 321 ( Preciado ), “‘[i] n an action to qu iet title based on adverse poss ession the burden is upon the claimant to prove every necessary element: (1) Possession must be by actual occupation under such circumstances as to constitute reasonable
notice to the owner. (2) It must be hostile to the ow ner’s title. (3)
The holder mu st claim the property as his own

, under either color of title or claim of right. (4) Possession must be continuous and uninterrupted for five years. (5) The holder must pay all the taxes levied and assessed upon the propert y during the period. [Citations .] ’ [Citation.] [¶] But ‘ “ [w]here, as here, a claim of ownership by adverse possession is asserted against a cotenant additional principles become operative

. . . .” [Citation.]’ [Citation.] ‘ “ [E]ach tenant in common has a right to occupy the
whole of the property. The possession of one is deemed the possession of all; each may assume that another in exclusive possession is possessing for all and not adversely to the others.

. . .”’ [Citation.]” ( Id

. at p. 325 .)

“ ‘“ ‘ B efore title may be acquired by adverse possession as between cotenants, the occupying tenant must bring home or impart notice to the tenant out of possession, by acts of ownership of the most open, notorious and unequivocal character,9

that he intends to o ust the latter of his interest in the common property. [Citations.] Such evidence must be stronger than that which would be required to establish a title by adverse possession in a stranger. [Citation.]’

. . . In short, one tenant in common cannot by m ere exclusive possession acquir e the title of his

cotenant. [Citation.] ” ’ [Citations.]” ( Preciado

, supra , 139 Cal.App.4th at p. 325, italics omitted.) “‘An ouster, in the law of tenancy in common, is the wrongful dispossession or exclusion by one tena nt of his cotenant

or cotenants from the common property of which they are entitled to possession.’ [Citation.]” ( Estate of Hughes (1992) 5 Cal.App.4th 1607, 1612 [absent any evidence of actual exclusion from the property in dispute, the court could not find an ouster].) “[O]uster mu st be proved by acts of an adverse character, such as claiming the whole for himself, denying the title of his companion, or re fusing to permit him to enter.” ( Zaslow v. Kroenert (1946) 29 Cal.2d 541, 548 [denial of title, c hanging locks, posting “no tres passing” signs on the property and denying admittance thereto constituted ouster].) Contrary to Vincent’s assertions, the trial court correctly
stated the elements of his adverse possession claim, correctly
identified the b urden of proof as clear and con vincing evidence
and did not add an extra element to the claim. As the court observed, “the presumption of title in each of the four [sibling]

cotenants can be overcome only by Vincent’s clear and convincing

ev idence of oust er.” 1. Burden of Proof
It is true that the cases tend to describe the applicable
burden of proof in an adverse possession claim as “clear and satisfactory” or “clear and positive

, ” rather than clear and10

convincing. (See, e.g., Yuba River Sand Co. v. City of Marysville (1947) 78 Ca l.App.2d 42 1
, 429

- 430 [“[B]urden is on one who claims by adverse possession to prove all the essential elements by clear and satisfactory evidence”]; Clark v. Stotts (1954) 127 Cal.App.2d 589, 592 [ “[S]uch possession cannot b e made out by inference, but on ly by clear and positive proof”]; Weller v. Chavarria (1965) 233 Cal.App.2d 234, 242 [“[B]urden is on the claimant to prove every essential element by clear and satisfactory evidence”].)
Vincent cites Vieira Enterprises , In c. v. McCoy (2017) 8 Cal.App.5t h 1057, for the proposition that the burden of proof to establish ouster is preponderance of the evidence. That case, however, involved a claim for termination of easement by adverse possession. It did not involve an advers e possession claim as
between c otenants , which requires evidence “ ‘“‘ s t ronger than that which would be required to establish a title by adverse possession
in a stranger. ’ ” ’” (

Preciado

, supra , 139 Cal.App.4th at p. 325.) In any event, Viera appears to be the only case holding that
the burden of proof is preponderance of the evidence. ( Husain v. California Pacific Bank (2021) 61 Cal.App.5th 717, 726, fn. 4.) Citing earlier cases, including our decision in Grant v. Ratliff (2008) 164 Cal.App.4th 1304, Hus ain reiterated that the burden of proof on a prescriptive easement claim is clear and convincing
evidence . ( Husain

, at p. 726.) 2. Evidence of Ouster
The trial court found that Vincent had clearly and convincingly proven two of the elements of ouster , i.e., occupation
of the prope rty for at least five years and payment of the property taxes for at least five years. It found, however, that Vincent had failed to prove “[o]ccupation under circumstances giving the11

cotenants notice of [his] assertion of e xclusive ownership and
in tent t o ouster the cotenants.” Substantial evidence supports trial court’s finding that “[o]ther than an oral statement to his siblings shortly after his mother’s death, Vincent did not signal in any manner the open hostility and exclusivity of [his] occupatio n of the property to the
extent of an o uster of the other cotenants.” The court also found “that Vincent’s testimony that he told his siblings he was claiming sole ownership to the exclusion of their rights as co

tenants lac ks credibility,” and that “[t]h e circumstance of the gathering and [Vincent’s] discussions with his siblings do not lend themselves well to notice of ouster in clear and unequivocal

terms .” Although the trial court noted that Vincent was a practicing att orney at the time and had faile d to give his siblings
written notice of the ouster, it did not state that written notice is

a n absolute requirement

. Vincent testified that he was “an attorney and handling property law” and that he was “aware that [he] had to take exclusive control and exclude [his] siblings from

an y . . . control of the house.” Given that this testimony “evince [d] an understanding of the law relating to the ouster of

co

- tenants generally,” the court found it implausible that Vincent
did n ot take other actions consisten t with ouster, such as placing a lien on the property, putting title in his name, physically excluding his siblings from the property or making major improvements.
Vincent ’s burden was to show “ ‘“‘ acts of ownership of the

m ost open, notorious and unequiv ocal character. ’”’ ” ( Precisado

, supra , 139 Cal.App.4th at p. 325.) Even if we accept that Vincent
told his siblings when Victoria died that she wanted him to have12

the property, his actions do not demonstrate an open, notori ous and unequivocal intent to o ust his cotenants

. The siblings were
in a state of shock and mourning when Vincent approached them
at the house and funeral home

. Notwithstanding Vincent’s claim of exclusive ownership, Annette continue s to live on the prop erty, paying the same utility b ills she paid prior to Victoria’s death. The siblings continue to come and go from the property . There is

no clear and convincing evidence of the kind necessary to
establish ouster

. As the trial court aptly observed, Vince nt and Annette’s “occupation of the property was not materially different
after Victoria’s death th a n it was before her passing.”

3. Vincent’s Deposition Testimony Vincent challenges the trial court’s admission of his deposition testimony in which he states his siblings were
“runni ng around like chickens with their heads cut off and trying to get their heads around what had just happened” and “people [ were ] just kind of in a daze.” Th e testimony was offered to show the siblings’ state of mind at the t ime of Victoria’s death

. As Sa ra points out, Vincent waived any challenge to the admission of this testimony by failing to object at trial. (See In re Riva M. (1991) 235 Cal.App.3d 403, 411

- 412 [“As a general rule, a party is precluded from urging on app eal any point not raised in the trial court”].)
4 . Vincent’s Motion To Augment the Record on Appeal
Vincent seeks to augment the record on appeal with evidence in the form of deposition testimony

. He claims the testimony, which was not presented in th e trial court

, establishes
that the siblings were not upset the day their mother died or the next day at the funeral home

. He contends that if they were not13

upset, the oral notice he gave them was sufficient to establish

ouster. The deposition testimon y was available at the time of trial

. In the absence of extraordinary circumstances, we do not consider
evidence that was not before the trial court. (See In re Zeth S. (2003) 31 Cal.4th 396, 405.) We therefore deny the motion to augment. D ISPOSITION The judgment is affirmed. Res pondent shall recover her costs on appeal.
NOT TO BE PUBLISHED.

PERREN , J.

We concur:

GILBERT

, P. J.

YEGAN

, J.14 Matthew P. Guasco

, Judge Superior Court County of Ventura

____________________ __________

Vincent A. Ruiz , J r., in pro. per., for Plaintiff and Appellant.
Arnold Larochelle Matthews Vanconas & Zirbel, Susan L. McCarthy, for Defendant and Respondent.