Brethren Hillcrest Homes v. Simon

Filed 10/17/07 Brethren Hillcrest Homes v. Simon 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Gloria Trask, Judge. Affirmed.

Antonio Simon, in pro. per., for Defendant and Appellant.

Gutierrez & Vera, Ronald T. Vera and Rene C. Nunez for Plaintiff and Respondent.

1. Introduction

Defendant appeals from a judgment quieting title in favor of plaintiff Brethren Hillcrest Homes concerning two adjoining San Jacinto properties, 140 East 7th Street and 198 East 7th Street. The trial court did not abuse its discretion in determining defendant cannot establish he was entitled to ownership of the property by adverse possession. (Wm. R. Clarke Corp. v. Safeco Ins. Co. of America (2000) 78 Cal.App.4th 355, 359; Kriegler v. Eichler Homes, Inc. (1969) 269 Cal.App.2d 224, 226.) We affirm the judgment.

2. The Court Trial

At trial, Charles Cable, the president and CEO of Brethren, testified that Brethren is a nonprofit retirement community. In January 1989, Jeff and Maxene Divine donated the subject properties to Brethren. In March 1989, Brethren sold the properties to James and Dodie ONeal for $20,000 down and a note for the remainder of the purchase price. The ONeals eventually stopped paying on the note and filed bankruptcy.

In 2003 or 2004, Brethren learned from the ONeals that someone was occupying the property without authorization, including using the house and operating the carwash and a tattoo parlor.

Defendant claimed he obtained title to the property by adverse possession on August 6, 2003, after it was abandoned by the ONeals. He made improvements to the property, purchased business licenses, paid the taxes and utilities, and leased the property to tenants, all of which he believed gave him title.

In August 2004, the ONeals agreed to give a quitclaim deed to Brethren in lieu of foreclosure.

Since receiving the quitclaim, Brethren has maintained possession of the property and paid the taxes. Brethren instituted eviction proceedings against the occupiers of the property. Brethren contracted to sell the property in December 2006.

In November 2004, Brethren filed a quiet title action against defendant to secure marketable title. (Code Civ. Proc., 760.020.)

3. Discussion

Defendant, who is not a lawyer and is representing himself, argues that the ONeals had abandoned the properties, leaving them no title to transfer by quitclaim deed back to Brethren. In the meantime, defendant contends, he began possessing the properties, meaning he acquired title adverse to Brethren.

As the trial court repeatedly explained to defendant, he confuses possession with title and he does not understand how title is acquired or how adverse possession operates. Defendant cites no authority, and there is none, to support his position that the ONeals lost title to the property before they executed the quitclaim deed returning the property to Brethren. The evidence established Brethren was the title owner of the property. (Evid. Code, 662.)

Furthermore, defendant refuses to recognize adverse possession requires there be continuous, open, notorious, and hostile possession for five years. (Code Civ. Proc., 325.) Defendant was in possession of the property for less than two years when Brethren filed its quiet title action. It is clear defendant was not in uninterrupted possession of the property for five years, since the filing of the complaint before the statutory period had elapsed interrupted defendants possession so as to prevent any title arising by adverse possession. [Citations.] (Chew v. Leach (1955) 134 Cal.App.2d 91, 92-93; Cottle v. Gibbon (1962) 200 Cal.App.2d 1, 10.)

Defendant tries to rely in part on Code of Civil Procedure section 320, concerning the power of termination: No entry upon real estate is deemed sufficient or valid as a claim, unless an action be commenced thereupon within one year after making such entry, and within five years from the time when the right to make it descended or accrued. Defendant interprets this statute to mean that he obtained title to the subject property because he purportedly possessed it for a year from August 2003 to August 2004 and Brethren did not file its quiet title action until November 2004. Defendant misinterprets the statute, which actually means that, when an adverse claimant asserts his claim sufficiently to bring it to the attention of a plaintiff, the plaintiff must file a quiet title action within five years of the assertion of the adverse claim. (12 Miller & Starr, Cal. Real Estate (3d ed. 2001) 34.107, p. 379.) Code of Civil Procedure section 320 does not bar Brethrens action to quiet title brought about 15 months after defendant purportedly took possession of the property.

Defendants claim for the value of the improvements made on the properties was not raised below. Even if it was appropriate, it was waived.

4. Disposition

We affirm the judgment. Brethren, the prevailing party, recovers its costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Hollenhorst

Acting P. J.

s/Miller

J.

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