Filed 2/21/18 Michaelson v. V.P. Condominium Corporation CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



KAREN MICHAELSON, as successor Trustee, etc.

Plaintiff and Appellant,

v.

V.P. CONDOMINIUM CORPORATION et al.,

Defendants and Respondents.
D071215



(Super. Ct. No. 37-2012-00085938-
CU-OR-CTL)


APPEAL from a judgment of the Superior Court of San Diego County, Joel R. Wohlfeil, Judge. Affirmed.

Rupp Johnston & Lloyd and Andrew F. Lloyd for Plaintiff and Appellant.
Law Offices of Joseph Barr & Associates, Joseph J. Barr, Jr., and Gary L. Ritchie for Defendants and Respondents.
Plaintiff Karen Michaelson appeals a judgment in favor of defendants V.P. Condominium Corporation, Daniel G. Little, and Little & Sons Property Management (collectively, V.P. Condo) following an order granting their motion for summary judgment. Michaelson is the successor-in-interest to her father, Nicholas Mosley, and trustee of the Nicholas A. Mosley Living Trust. Mosley filed suit against V.P. Condo to quiet title to the extra 12th garage in his 11-unit condominium development and obtain damages based on V.P. Condo's allegedly wrongful conduct in denying his exclusive right to use the garage. Mosley died during the lawsuit, and Michaelson was substituted in his place.
In this appeal, Michaelson contends the trial court erred by granting V.P. Condo's motion for summary judgment because she presented triable issues of fact regarding (1) whether the extra 12th garage was validly conveyed to Mosley's predecessor-in-interest and (2) whether Mosley established an exclusive right to use the garage through adverse possession. Michaelson also contends the court erred by assessing costs and attorney fees against the trust and her as an individual, rather than only against the trust. We reject these contentions and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In April 1981, Thirty Third Street Association recorded an amended condominium plan (Condominium Plan) for the Villa Park condominium development in San Diego. The Condominium Plan identified 11 condominium units and associated appurtenant exclusive use areas, including garages, balconies, patios, and parking spaces. It stated that each unit also had an appurtenant undivided one-eleventh fractional interest in the condominium development common area. A plan schematic identified each condominium unit and its associated garage by number. The schematic also identified a smaller, 12th garage, which it identified as unassigned.
Earlier, Thirty Third Street had recorded a Declaration of Restrictions for the development. The Declaration defined a "Condominium" in the development as "a separate interest in a Living Unit and an undivided fractional interest as tenant in common in the Common Area, together with any Exclusive Use Area conveyed appurtenant thereto." The Declaration defined "Common Area" as "all portions of the Condominium Property not located within a Living Unit" and "Exclusive Use Area" as "those portions of the Common Area to which an exclusive right to use is granted to an Owner as shown and described on the Condominium Plan." Under the Declaration, Exclusive Use Areas "consist of Patios, Balconies, Garages and Storage and Parking Spaces." The Declaration stated that each Exclusive Use Area is "appurtenant to the Living Unit with which the Exclusive Use Area is conveyed" and "[c]onveyance of a Condominium shall effect conveyance of Exclusive Use Areas appurtenant thereto and transfer of all rights thereto to the vested Owner of the Condominium."
The Declaration established the V.P. Condominium Corporation as the governing association for the development. Each condominium owner is a member of the corporation. Under the Declaration, except as otherwise provided, neither the corporation nor the owners could "[s]eek, by act or omission, to abandon, partition, subdivide, encumber, sell or transfer the Common Area" unless at least 75 percent of first mortgagees of mortgages encumbering condominiums provided their written consent.
One month after the Condominium Plan was recorded, Thirty Third Street sold the first condominium in the development to Elvia Saucedo and her family. The deed described the condominium in three parcels: first, an undivided one-eleventh interest in the development, excluding the "Living Units" and "the exclusive right to use all patios, balconies, garages, storage and parking spaces as shown on [the] Condominium Plan"; second, Unit 1 as shown in the Condominium Plan; and third, the exclusive right to use Garage No. G-1 and Balcony No. B-1 appurtenant to Unit 1 as set forth in the Condominium Plan.
Soon afterwards, Thirty Third Street sold Unit 5, which Mosley would eventually own. The deed described the condominium in similar terms to the Saucedo deed: first, an undivided one-eleventh interest in the development, excluding the "Living Units" and "the exclusive right to use all patios, balconies, garages, storage and parking spaces as shown on [the] Condominium Plan"; second, Unit 5 as shown in the Condominium Plan; and third, the exclusive right to use Garage No. G-5 and Balcony No. B-5 appurtenant to Unit 5 as set forth in the Condominium Plan. The next month, the owners deeded Unit 5 back to Thirty Third Street, again using a similar description.
In August 1981, Thirty Third Street sold Unit 5 to Guy Douglas Trenga. The deed described the condominium in similar terms as the prior deeds, with one addition. In the third parcel, Trenga was granted the exclusive right to use Garage No. G-5 and Balcony No. B-5 appurtenant to Unit 5 as set forth in the Condominium Plan, as well as the following: "Also the exclusive right to use the unassigned garage (located at the northwest corner of the north building—see condominium plan)." Trenga later deeded his interest in Unit 5, including the unassigned garage, to himself and his wife as joint tenants.
In October 1987, the Trengas sold their interest in Unit 5 to Mosley. The deed described the condominium in similar terms to the Trenga deeds, including the unassigned garage: first, an undivided one-eleventh interest in the development, excluding the "Living Units" and "the exclusive right to use all patios, balconies, garages, storage and parking spaces as shown on [the] Condominium Plan"; second, Unit 5 as shown in the Condominium Plan; and third, the exclusive right to use Garage No. G-5 and Balcony No. B-5 appurtenant to Unit 5 as set forth in the Condominium Plan and "[a]lso the exclusive right to use the unassigned garage located at the North West corner of the North Building—see Condominium Plan." Mosley later quitclaimed his interest in the condominium to the Nicholas A. Mosley Living Trust dated June 1, 2000. Mosley lived in Unit 5 for a number of years, until he moved to an elder care facility.
After Mosley moved out, he received a letter from Daniel G. Little of Little & Sons Property Management, which manages the condominium development. The letter accused Mosley of "fraudulent action" in connection with the unassigned garage and demanded that Mosley quitclaim any interest in the unassigned garage to the V.P. Condominium Corporation.
Mosley subsequently filed this action. He asserted claims for quiet title; slander of title; trespass; breach of covenants, conditions, and restrictions; breach of fiduciary duty; defamation; elder abuse; intentional interference with prospective economic advantage; and negligence. V.P. Condo moved for summary judgment on the ground that Mosley could not establish he had the exclusive right to use the unassigned garage. The trial court agreed and granted the motion. In doing so, it rejected Mosley's argument that he should be allowed to amend his complaint to add a cause of action for adverse possession. Mosley appealed.
As noted, during the appeal Mosley died. Michaelson moved to pursue the appeal as Mosley's successor-in-interest and the trustee of his living trust. This court granted the motion.
In an unpublished opinion, this court reversed the judgment. (Michaelson v. V.P. Condominium Corp. (Mar. 26, 2015, D065602).) The opinion noted that each of Mosley's claims required a showing that he enjoyed the exclusive right to use the unassigned garage. After reviewing the record, it held, "[t]he trial court had in front of it sufficient documentation to establish Mosley likely could state a cause of action for adverse possession. . . . These material facts preclude summary judgment on Mosley's complaint that alleged he had the right to exclusive use of the unassigned garage." Thus, because Mosley's request to amend was timely, it should have been granted.
On remand, Michaelson filed a verified first amended complaint. She identified herself as successor-in-interest to Mosley and trustee of his living trust. The amended complaint retained Mosley's prior claims and added a cause of action for adverse possession.
V.P. Condo again moved for summary judgment. It relied on the Condominium Plan, the Declaration, and the deeds described above, among other things, to argue that Mosley could not validly have obtained the right to exclusively use the unassigned garage. As to Michaelson's claim for adverse possession, V.P. Condo argued that it permitted Mosley to use the garage because he was the on-site property manager and his use of the garage was not exclusive. It also argued that Mosley did not pay all of the taxes on the unassigned garage. V.P. Condo noted that Mosley stated in a declaration that he "insured and paid taxes on the Garage," but he did not specify whether he paid all the taxes. Relying on declarations from Elvia Saucedo and Daniel Little, V.P. Condo argued that all condominium owners paid one-eleventh of the taxes on the unassigned garage because it was part of the Common Area of the development.
In opposition, Michaelson argued that the deed conveying exclusive use of the unassigned garage was consistent with the Condominium Plan and the Declaration and authorized by statute. She also argued that there was a triable issue of fact whether Mosley's use of the garage was hostile and exclusive and whether Mosley paid all of the taxes on the garage.
The trial court granted V.P. Condo's motion. It reasoned that a grant deed could not reserve the unassigned garage for the exclusive use of one owner under the Condominium Plan and the Declaration. The deeds conveying the right to exclusive use of the unassigned garage were therefore unauthorized "wild deeds," and the purported conveyances were ineffective. The court rejected Michaelson's claim that Mosley had obtained exclusive use of the unassigned garage through adverse possession. It found that Mosley's declaration did not create a triable issue of fact that he paid all of the taxes on the unassigned garage because every condominium owner paid at least one-eleventh of the taxes and his declaration was consistent with that fact. Michaelson did not show, for example, that Mosley paid more than other owners for the unassigned garage.
The court entered judgment in favor of V.P. Condo and against Michaelson. It awarded costs against Michaelson individually "as successor-in-interest" to Mosley. Michaelson objected to her inclusion on the ground that she was suing on behalf of Mosley's trust, but the court disagreed. It found that Michaelson had sued in two separate capacities, for herself as successor-in-interest and for the trust as trustee. The court later awarded V.P. Condo approximately $76,000 in attorney fees and denied Michaelson's motion for a new trial. Michaelson now appeals.
DISCUSSION
I
A
"A defendant's motion for summary judgment should be granted if no triable issue exists as to any material fact and the defendant is entitled to a judgment as a matter of law. [Citation.] The burden of persuasion remains with the party moving for summary judgment. [Citation.] When the defendant moves for summary judgment, in those circumstances in which the plaintiff would have the burden of proof by a preponderance of the evidence, the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true [citation], or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff 'does not possess and cannot reasonably obtain, needed evidence.' " (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003 (Kahn).)
If the defendant "carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) "The plaintiff . . . shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . ." (Code Civ. Proc., § 437c, subd. (p)(2).)
"We review the record and the determination of the trial court de novo." (Kahn, supra, 31 Cal.4th at p. 1003.) "In performing our de novo review, we must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing [the plaintiff's] evidentiary submission while strictly scrutinizing defendants' own showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor." (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)
"Though summary judgment review is de novo, review is limited to issues adequately raised and supported in the appellant's brief. [Citations.] 'As with an appeal from any judgment, it is the appellant's responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority. In other words, review is limited to issues which have been adequately raised and briefed.' " (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125-126.)
B
Michaelson contends there are triable issues of fact regarding whether Thirty Third Street validly conveyed the exclusive right to use the unassigned garage when it sold Unit 5 to Mosley's predecessor-in-interest. She argues that the trial court erred by finding that the conveyance was inconsistent with the Condominium Plan and the Declaration. Our interpretation of these instruments is governed by the same standards that govern interpretation of contracts. (Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1377.) The Declaration sets forth covenants, conditions, and restrictions that are binding on the condominium development, condominium owners, and the developer.
The Condominium Plan identified each Living Unit and its associated appurtenant exclusive use areas. Each Living Unit was allocated one garage. The unassigned, 12th garage was identified on the plan schematic, but it was not identified as an appurtenant exclusive use area. The Declaration defined a "Condominium" in the development as "a separate interest in a Living Unit and an undivided fractional interest as tenant in common in the Common Area, together with any Exclusive Use Area conveyed appurtenant thereto." Under the Declaration, an "Exclusive Use Area" consists of "those portions of the Common Area to which an exclusive right to use is granted to an Owner as shown and described on the Condominium Plan." (Italics added.)
By tying the definition of Exclusive Use Area to the Condominium Plan, the Declaration incorporated the Condominium Plan's identification of appurtenant exclusive use areas. Because the unassigned garage was not identified in the Condominium Plan as an appurtenant exclusive use area, it was not an Exclusive Use Area under the Declaration. As a part of the condominium development's Common Area, but not an Exclusive Use Area, the unassigned garage was protected from encumbrance by the terms of the Declaration. Except as otherwise provided, neither the V.P. Condominium Corporation nor the owners could "[s]eek, by act or omission, to abandon, partition, subdivide, encumber, sell or transfer" the unassigned garage unless at least 75 percent of first mortgagees of mortgages encumbering condominiums provided their written consent.
V.P. Condo offered evidence that this condition had not been satisfied. Based on her review of V.P. Condo's records, as well as her personal experience on its board of directors, Elvia Saucedo stated that "neither the [V.P. Condominium Corporation] Board of Directors, nor the membership, has ever licensed, sold, conveyed, passed a resolution or approved any right for [Mosley], any predecessor of his, or anyone, to own the right or title to the subject Unassigned Garage or to make exclusive use of the Unassigned Garage for personal use." Any purported encumbrance by Thirty Third Street in the Trenga deed therefore contradicted the Condominium Plan and the Declaration. Michaelson speculates that the board may have approved the Trenga deed because Thirty Third Street "likely" dominated the board at the time, but she cannot raise a triable issue of fact based on mere speculation.
Michaelson offers an alternative interpretation of the Condominium Plan and the Declaration. She argues that all of the garages are identified as Exclusive Use Areas; the unassigned garage was simply an Exclusive Use Area to be conveyed in the future as an appurtenance to an as-yet-unidentified condominium unit. She points out that such a conveyance is an accepted practice for developers who want to entice specific buyers with additional amenities. (See, e.g., Civ. Code, § 4145, subd. (a); 1 Hanna & Van Atta, Cal. Common Interest Developments: Law and Practice (2015) § 3:15 ["The reservation [of exclusive use common area] may be by means of descriptions and notes on the map or condominium plan, provisions in the condominium declaration, and/or provisions in a deed."].) We disagree that these principles apply here. While it is possible for a developer to structure the governing documents to allow for such a conveyance, the Condominium Plan and Declaration here do not. Contrary to Michaelson's interpretation, the Declaration does not designate all garages as Exclusive Use Areas. While the Declaration describes the Exclusive Use Areas as consisting of "Patios, Balconies, Garages and Storage and Parking Spaces," the Declaration does not state that all such areas are Exclusive Use Areas. Instead, the Exclusive Use Areas are "those portions of the Common Area to which an exclusive right to use is granted to an Owner as shown and described on the Condominium Plan," i.e., the 11 garages and other areas assigned to individual condominium units in the Condominium Plan. (Italics added.)
C
Michaelson alternatively argues that, notwithstanding the Condominium Plan and the Declaration, the deed conveying the right to exclusive use of the unassigned garage was authorized by the statutes governing condominium developments and other common interest developments. Michaelson cites Civil Code section 4600, which generally requires that "[u]nless the governing documents specify a different percentage, the affirmative vote of members owning at least 67 percent of the separate interests in the common interest development shall be required before the board may grant exclusive use of any portion of the common area to a member." (Id., subd. (a).) The statute contains a number of exceptions, however, which do not require such a supermajority vote. Among these exceptions are "[a]ny grant of exclusive use that is in substantial conformance with a detailed plan of phased development submitted to the Real Estate Commissioner with the application for a public report or in accordance with the governing documents approved by the Real Estate Commissioner" and any grant "[t]o assign a parking space, storage unit, or other amenity, that is designated in the declaration for assignment, but is not assigned by the declaration to a specific separate interest." (Id., subd. (b)(2), (3)(G).) Michaelson contends both exceptions apply here.
V.P. Condo responds that the exceptions are inapplicable because they were enacted long after the conveyances to Trenga and Mosley at issue here. Without deciding whether this statute has any relevance to the conveyances to Trenga and Mosley at issue here, we conclude Michaelson has not shown that either exception applies. For the reasons we have stated, the conveyance was not "in accordance with the governing documents" of the condominium development. (See Civ. Code, § 4600, subd. (b)(2).) Instead, it directly contradicted them. And, the unassigned garage was not "designated in the declaration for assignment." (See id., subd. (b)(3)(G).) It was specifically left unassigned and part of the Common Area not subject to an exclusive use restriction.
D
Michaelson also contends that Mosley obtained the exclusive right to use the unassigned garage through adverse possession. The doctrine of adverse possession is limited in various ways by statute. For example, as relevant here, Code of Civil Procedure section 325 provides, "[i]n no case shall adverse possession be considered established under the provision of any section of this code, unless it shall be shown that the land has been occupied and claimed for the period of five years continuously, and the party or persons, their predecessors and grantors, have timely paid all state, county, or municipal taxes that have been levied and assessed upon the land for the period of five years during which the land has been occupied and claimed. Payment of those taxes by the party or persons, their predecessors and grantors shall be established by certified records of the county tax collector." (Id., subd. (b).) Thus, "[t]he possessor must pay all of the taxes levied and assessed upon the property during the period." (West v. Evans (1946) 29 Cal.2d 414, 417.)
The requirement that all taxes be paid is essential to a claim of adverse possession, and the payment of taxes by the rightful owner is sufficient to prevent a claimant from satisfying this requirement. "There are no equities in favor of a party seeking by adverse holding to acquire the property of another . . . : 'Section 325 of the Code of Civil Procedure requires that one who seeks or claims to obtain title by adverse possession shall have paid "all the taxes, state, county, or municipal, which have been levied and assessed upon such land during the five years of his adverse occupancy." If, when he offers to make a payment to the tax collector, the tax which has been levied has been already paid, he cannot comply with one of the requirements of the statute, and must fail to acquire a title by adverse possession. There is no hardship in this construction. If the owner of the land pays the taxes as they fall due, there is no reason why his title should be impaired by a subsequent payment by another. The statute makes the payment of taxes as important an element as actual occupancy of the land for the purpose of gaining a title by adverse possession, and the burden is upon the claimant to do the acts required to create the adverse title. He should be as vigilant in paying the taxes as in holding possession of the land. He is seeking to gain the title of another through statutory authority, and it is for him to see that he does all of the acts which the statute requires.' " (Glowner v. De Alvarez (1909) 10 Cal.App. 194, 196.)
V.P. Condo presented evidence that each condominium owner paid one-eleventh of the taxes on the unassigned garage because it is part of the Common Area of the development. In opposition, Michaelson relies on Mosley's statement that he "insured and paid taxes on the Garage." But this statement is consistent with V.P. Condo's assertion that each owner, including Mosley, paid taxes on the unassigned garage. Mosley did not say that he paid all taxes on the garage. His statement therefore does not create a triable issue on the payment of taxes. We note that Michaelson did not provide any documentary evidence of Mosley's tax payments, such as county assessments or payment receipts, that could have shown additional payments beyond the one-eleventh share paid by each owner.
Michaelson contends that Revenue and Taxation Code section 2188.5 leads to the presumption that Mosley was assessed and paid taxes on the exclusive right to use the unassigned garage, as described in his grant deed. Michaelson is mistaken. The statute applies only to "planned developments as defined in Section 11003 of the Business and Professions Code[.]" (Rev. & Tax. Code, § 2188.5, subd. (a)(1).) That definition excludes condominium projects. (Bus. & Prof. Code, § 11003; Civ. Code, §§ 4175, 6562.)
We are likewise unpersuaded that this court's prior opinion precludes summary judgment, based on the doctrine of law of the case. The prior opinion considered a factual record different from the current record. It has no bearing on whether summary judgment is proper on the current record. (See Building Industry Assn. v. City of Oceanside (1994) 27 Cal.App.4th 744, 761 [" 'The doctrine not only does not apply to new and additional evidence, it does not apply when explanation of previous evidence appears in the later trial.' "].)
II
Michaelson further argues the trial court erred by assessing costs and attorney fees against her individually, rather than simply against Mosley's trust. We will assume, without deciding, that we review the court's determination de novo. (See Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132, 142.)
In general, "in an action prosecuted or defended by a personal representative, trustee of an express trust, guardian, conservator, or a person expressly authorized by statute," costs may be recovered only "upon the estate, fund, or party represented, unless the court directs the costs to be paid by the fiduciary personally for mismanagement of bad faith in the action or defense." (Code Civ. Proc., § 1026.) Here, however, the trial court found that Michaelson sued both as trustee of Mosley's living trust and as his successor-in-interest. In the latter capacity, Michaelson was suing for herself and did not represent the trust. (See Exarhos v. Exharhos (2008) 159 Cal.App.4th 898, 908; Peterson v. John Crane, Inc. (2007) 154 Cal.App.4th 498, 509.) The trial court's finding reflects Michaelson's own self-identification in her operative complaint. The court therefore properly awarded costs against her individually.
Michaelson does not address the trial court's reasoning. She merely asserts she is the trustee of an express trust, and Code of Civil Procedure section 1026 applies. But a party may sue in multiple capacities. (Peterson v. John Crane, Inc., supra, 154 Cal.App.4th at p. 509.) Michaelson has not shown the trial court erred by finding that she sued in multiple capacities here.
DISPOSITION
The judgment is affirmed.


HALLER, Acting P. J.

WE CONCUR:




AARON, J.




GUERRERO, J.