VANDERKOUS V. CONLEY

















Filed 9/2/10

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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FIRST
APPELLATE DISTRICT



DIVISION
THREE




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RICHARD VANDERKOUS, as Trustee, etc., Plaintiff and Appellant, v. NANETTE UJDUR CONLEY, Defendant and Respondent.

A125352 (Contra Costa County Super. Ct. No. C0602619)

Richard
Vanderkous, as trustee of the Richard Vanderkous Trust, sued Nanette Ujdur
Conley seeking to quiet his title to certain real property. In its statement of decision the court found
that, while Vanderkous had legal title
to the property, Conley retained an equitable interest. Title was thus quieted in Vanderkous and
Conley was directed to execute a quitclaim deed in his favor. But Vanderkous, in return, was directed to
pay Conley the full market value of the property as compensation for her
equitable interest. Following issuance
of the statement of decision, Vanderkous filed a request for dismissal of the
entire action with prejudice. When
Conley appeared in court for a hearing to value her interest and thus set the
measure of Vanderkous's payment, the court set aside the dismissal, valued
Conley's interest, and entered judgment in her favor. Vanderkous later successfully moved to set
the judgment aside pursuant to Code of Civil Procedure section 473,[1]
and after further proceedings the trial court entered the judgment that is now
before us.

Vanderkous
says the court erred by proceeding after he requested that the case be
dismissed with prejudice. Because his
dismissal was effective, Vanderkous also says the court erred when it awarded
Conley attorney fees on his motion to vacate the initial judgment under section
473. In any event, he argues that Conley
was not entitled to recover compensation for her interest in the property
because she never filed a cross-complaint seeking affirmative relief, and the
valuation of her interest as reflected in the court's final judgment was not
supported by substantial evidence.

We conclude
that Vanderkous's request to dismiss the action was untimely and of no effect
because it was filed after the case was submitted for decision. Though a hearing to value Conley's interest
was pending when the dismissal was filed, that hearing did not have the effect
of vacating submission of the action.
Even in the absence of a cross-complaint, the court had the authority in
the exercise of its equitable powers to compensate Conley for her interest in
the property and the measure of her compensation is supported by substantial
evidence. The award of attorney fees
Conley incurred to oppose Vanderkous's section 473 motion was also proper. We therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Vanderkous
and Conley lived together in a home on an eight-acre parcel of land owned by
Vanderkous in Martinez. The couple split up in 1999. As part of the settlement of their affairs,
Vanderkous sold Conley a portion of the property that included their home. Following a dispute over performance of the
settlement, a September 2001 arbitration award directed Conley to cooperate
with Vanderkous to effectuate a lot line adjustment that would result in the
home, a detached garage and a setback area on a single lot to be owned by
Conley with the remainder of the eight acres as a single parcel to be retained
by Vanderkous. Vanderkous was also to
have access and utility easements over the garage area for the benefit of his
retained parcel.

The easements
were executed by Conley and recorded.
But the garage and surrounding property were never transferred because
neither Vanderkous nor his attorney recorded either the lot line adjustment or
the grant deed to Conley for the garage and setback area. Even though Conley granted easements to
Vanderkous, she did so without having legal title to the garage and setback
area.

Conley's
home was destroyed by fire in February 2004, and she was unable to rebuild it
because without the lot line adjustment she did not have a legally buildable
lot. She stopped making her loan
payments and lost the home in a foreclosure sale in May 2006.

Meanwhile,
Vanderkous received approval to record a subdivision map covering his adjacent
property in July 2005. But the title
company that was to record the map refused to do so because the grants of
easement by Conley created a cloud on Vanderkous's title. The garage and setback area was included in
the proposed subdivision, but its ownership was unclear because the grants of easement
suggested Conley had a legal interest in the property. When Vanderkous was unable to secure a
quitclaim deed from Conley relinquishing any interest she may have in the
garage and setback area, he filed his complaint for declaratory relief and to quiet
his title.

The
complaint alleged Vanderkous was unable to record his subdivision map or obtain
title insurance, â€