Penrock v. Lugo Land Corp.

Filed 8/27/07 Penrock v. Lugo Land Corp. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, Robert H. OBrien, Judge. Affirmed.

Stacker, Hoting & Associates, Patrick C. Stacker for Plaintiff and Appellant.

Martinez Law Group, Ralph G. Martinez and Edward R. Sublett for Defendant and Respondent.

INTRODUCTION

William Penrock, appointed special administrator of the Estate of Michael Prevost, appeals an order denying his Probate Code section 850[1] petition seeking transfer of title to real property (the Crockett property) from its purchaser, Lugo Land Corporation (Lugo), to the Prevost Estate. Prevosts joint venture contract with Lugo gave Prevost only a possible expectation of a portion of future profits when the contract was completed and the Crockett property was sold. Therefore Prevost could not bring a section 850 petition because he did not have a claim to real property, title to or possession of which was held by another, and the trial court properly denied Prevosts petition. We reject Penrocks claim that by its orders denying Lugos two motions to expunge Penrocks lis pendens on the Crockett property, the trial court recognized Prevosts claim to the Crockett property. We conclude that no error arose from the trial courts interpretation of the relief requested by Penrocks petition or from the trial courts refusal to grant equitable relief. Although Penrock claims that a constructive trust or a resulting trust should be imposed on Lugos ownership of the Crockett property, Penrock has not established the requirements for imposing either of these trusts. Finally, we reject Lugos claim that this court should impose sanctions on Penrock for bringing an appeal that was frivolous because it was moot. We affirm the order denying the section 850 petition.

FACTUAL AND PROCEDURAL HISTORY

On November 7, 2003, Herlinda Ruiz executed a grant deed to property at 10508 Crockett Street in Sun Valley, California, to Lugo. On November 28, 2003, C. Michael Prevost, Director of Parkfield Ventures, Inc., and Richard Hebb, of Lugo, entered into a joint venture agreement to acquire, upgrade, and re-sell the Crocket property. Lugo deposited $296,400.00 into escrow to purchase the Crockett property. The joint venture contract called for Lugo to provide $10,000 to $30,000 for mutually agreed work on the Crocket property. Money invested by Lugo became due and payable six months after escrow closed with interest and a percentage of any net profits, with increases in interest owed to Lugo and Lugos net profits occurring after six months and at nine months. Prevost was to receive remaining profits, but after eleven months, Lugo would retain one hundred percent of any profits. The contract gave Prevost access to the Crockett property to prepare that property for immediate resale.

On March 13, 2004, Prevost died intestate. On June 10, 2004, William Penrock obtained an order for probate appointing him special administrator, and authority to complete the contract with Lugo to rehab and repair a house at the Crockett property, to sign documents required to complete the sale, and to place sale proceeds in a blocked account.

Penrock located a buyer for the Crockett property. As of April 9, 2004, an escrow was opened for Lugos sale of the Crockett property to Krista Meraz for $430,000. Lugo did not agree to this sale of the Crockett property.

On August 19, 2004, Penrock filed a petition for an order directing conveyance of the Crockett property to the Estate of Prevost. The petition sought to place Prevosts estate, through Penrock, in title and control of the Crockett property. The petition alleged that Prevost, Penrock, and Anthony Morgan, through NAA/Parkfield Ventures, Inc. (Parkfield), acquired undervalued houses, rehabilitated them, and sold them. The petition alleged that on behalf of Parkfield, Prevost entered into a joint venture with Richard Hebb of Lugo. Title and possession of the Crockett property was acquired pursuant to the joint venture agreement, with Hebb of Lugo holding possession of the Crocket property, the main asset of Prevosts estate. The petition alleged that Parkfield performed its obligations under the joint venture contract, delivered a real estate purchase contract for $430,000 with Lugo as seller and Krista Meraz as purchaser, and that Hebb had not allowed renovation of the Crockett property to proceed in a timely manner and would not cooperate in selling that property to fulfill the joint venture.

The petition sought an order requiring Hebb/Lugo to convey title to Parkfield and to deliver possession of the Crockett property to Penrock, upon sale of the property to execute documents necessary to fund an escrow account to hold sale proceeds until the court could order disbursement of escrow funds to the Estate and Lugo, and to place funds from the sale of the Crockett property in that escrow account until the court determines the appropriate division of any profits from that sale.

Penrocks October 7, 2005, supplement to the petition asked for an order declaring that Hebb/Lugo held the Crockett property in constructive trust for the Prevost Estate, subject to a loan by Lugo and to agreements between Prevost and his business partners. The supplement to the petition referred to a February 5, 2004, judgment, which ordered judgment entered in favor of plaintiffs (T.V.R.N., Inc., Anthony Morgan, and Michael Prevost) and against defendants (Sierra Realtors, Martha Reyes, and Herlinda Rodriguez de Ruiz), and that Parkfield Ventures, Inc. pay $350,000 to Ruiz in consideration for the Crockett property, with Ruiz to net $290,000 of the $350,000 purchase price and Ruiz to credit $60,000 to Parkfield Ventures. This supplemental petition alleged that Hebb admitted in his deposition that the purchase price of the Crockett property in the February 5, 2004, judgment was $350,000 and that Parkfield Ventures was to receive a $60,000 equity credit. The supplemental petition alleged that when Ruiz conveyed the Crockett property to Lugo, Parkfield had $60,000 of equity in that property, and Hebb loaned the balance of proceeds to buy the property and structured the loan to be placed on title in lieu of securing his loan by a deed of trust. The supplement to the petition alleged that Parkfield Ventures had a 100 percent interest in the legal title to the Crockett property, subject to Lugos loan, and that interest rate provisions for the loan were usurious under the California Constitution and therefore null and void.

Trial began on November 7, 2005. On November 8, Lugo moved for judgment pursuant to Code of Civil Procedure section 631.8. On November 28, 2005, the trial court filed an order granting motion for judgment in favor of Lugo and against Penrock, and denied the petition for an order directing conveyance of property to Estate of Prevost.

In its statement of decision, the trial court found that the joint venture agreement gave rise to Prevosts claim to some proceeds from the anticipated sale of the Crockett property after the agreement was fulfilled. The trial court found, however, that Penrock had failed in the proof regarding the amount of the claim to a $60,000 interest in the joint venture agreement. Even if Penrock had a valid claim to some monetary interest in the joint venture agreement, the trial court determined that the joint venture agreement did not give Prevost any right to title to the Crockett property, and instead gave title to Lugo. Therefore the Crockett property was not an asset of Prevosts estate. Insofar as the petition claimed that Prevost died having a claim to real property and the petition requested the court to transfer the property to Prevost and to require Lugo to sign over title to the real property to Prevost, the trial court concluded that the petition under section 850 was the wrong remedy. The petition asked for something that could not be ordered, i.e., the deeding over of title to the property. The trial court stated that the proper remedy was a winding up of the joint venture/partnership under section 9762 and Corporations Code sections 16601 and 16801. Regarding the transfer of title to the Crockett property, the trial court further concluded that because Lugo paid $295,000 to buy that property and Prevost had only an anticipated claim upon sale of that property, the equities weighed in favor of Lugo.

Penrock filed a timely notice of appeal on January 6, 2006.[2]

ISSUES

Penrock claims on appeal that:

1. Section 850 provided the appropriate remedy to return Prevosts interest, held by Lugo, to Prevosts estate;

2. By twice denying Lugos motion to expunge Penrocks lis pendens, the trial court recognized the claim of the Estate of Prevost to the Crockett property.

3. The trial court erroneously failed to give Penrocks section 850 petition a reasonable interpretation by failing to consider all equitable remedies; and

4. Sufficient evidence was presented at trial to establish the imposition of a constructive trust, making the grant of Lugos motion for judgment reversible error.

Lugo claims that Penrocks appeal is moot, and that this court should impose sanctions on the appeal as a frivolous appeal.

STANDARD OF REVIEW

A motion for judgment pursuant to Code of Civil Procedure section 631.8 is intended to eliminate the necessity of defense evidence. (Rodde v. Continental Ins. Companies (1979) 89 Cal.App.3d 420, 423-424; Pettus v. Cole (1996) 49 Cal.App.4th 402, 424.) Code of Civil Procedure section 631.8 authorizes the court to weigh evidence and, if it renders judgment in the moving partys favor, requires the court to make a statement of decision. In doing so, the trial court may disbelieve witnesses and draw conclusions at odds with expert opinion. This court will affirm the judgment if substantial evidence supports the trial courts findings. (Jordan v. City of Santa Barbara (1996) 46 Cal.App.4th 1245, 1255.)

DISCUSSION

1. Penrock Has Not Shown That Decedent Prevost Had a Claim to Real Property

Sufficient for Penrock to Bring a Section 850 Petition

Penrock brought a petition based on section 850, subdivision (a)(2)(D), which states: (a) The following persons may file a petition requesting that the court make an order under this part: [] . . . []

(2) The personal representative or any interested person in any of the following cases: [] . . . []

(D) Where the decedent died having a claim to real or personal property, title to or possession of which is held by another.

Section 58 defines Penrock, who is special administrator, as a personal representative, who therefore can bring a petition based on section 850. The issue is whether Prevost died having a claim to the Crocket property, to which Lugo held title. The petition sought an order conveying title to the Crockett property to NAA/Parkfield Ventures and delivering possession of that property to Penrock. Penrock argues that the trial evidence showed Prevost had three distinct interests in the Crockett property, any one of which was a sufficient claim to real property under section 850.

First, Penrock claims that he presented evidence that Prevost had a 100 percent equity interest in the Crockett property based on Prevosts $50,000 to $60,000 credit. Penrock cites testimony by Richard Hebb of Lugo, who testified that his company purchased the Crockett property rather than lend the purchase price to Prevost or Parkfield Ventures. Penrock also refers to testimony by Jewell A. Morgan, a business partner of Prevost, about his understanding of the February 5, 2004, settlement agreement between Ruiz (and other defendants) and plaintiffs Prevost, Morgan (and other plaintiffs). Morgan testified that he understood the settlement to require Parkfield Ventures to purchase the Crockett property from Ruiz for $350,000, and that $60,000 of that was to come back to Michael Prevost, Parkfield Ventures and myself.[3] Parkfield Ventures, however, did not purchase the Crockett property; Lugo purchased the Crockett property. None of this evidence supports a finding that Prevost had a 100 percent equity interest in the Crockett property. The owner of legal title to property is presumed to be the owner of the full beneficial title. (Evid. Code, 662.) Only clear and convincing evidence can rebut this presumption. (Ibid.) Penrock has not provided such evidence that would rebut the presumption.

Second, Penrock claims that he presented evidence that as a party to the joint venture agreement with Lugo, Prevost had a right to possess the Crockett property in order to rehab, market, and sell that property. Prevost cites the joint venture agreement, which states that Prevost shall have access to Crockett for the sole purpose of house sitting, security and cosmetic upgrades which may all be assigned, all for preparing Crockett for immediate resale. This joint venture agreement, however, grants Prevost only access to the Crockett property for specified purposes, and nowhere grants possession or uses that word.

Third, Penrock claims that he presented evidence that pursuant to the joint venture agreement, Prevost had a right to proceeds from the sale of real property, less Lugos interest. This evidence was testimony by Richard B. Hebb, President, CEO, and owner of Lugo, that he had the right to reject an offer to purchase the Crockett property if the offer was less than the money Lugo had invested to purchase and rehabilitate that property. The cited testimony contains no evidence concerning what right Prevost had to proceeds from the sale of real property. Penrock also cites the trial courts statement of decision concerning the decedents right to some proceeds from the anticipated sale of the Crockett property after the joint venture agreement was fulfilled.

Thus Penrock has provided no evidence to support a finding that Prevost had a claim to the Crockett real property sufficient to provide a basis pursuant to section 850 for an order conveying title to the Crockett property to NAA/Parkfield Ventures and delivering possession of that property to Penrock. It is undisputed that a grant deed executed on November 7, 2003, by Herlinda Ruiz conveyed title to the Crockett property to Lugo.

Plaintiff argues that Estate of Myers (2006) 139 Cal.App.4th 434 supports his reliance on section 850. In Estate of Myers, however, a creditor had a court-approved claim against the estate of the deceased, and brought a section 850 petition alleging a fraudulent conveyance of property by the deceased to her husband for the purpose of defrauding her creditors. The issue was whether a creditor had standing to bring a section 850 petition. Estate of Myers found that a creditor of the estate was an interested person who thus had standing to bring a section 850 petition. Moreover, section 850 applied to the dispute because when Myers died, she lived in the house she had conveyed to her husband and thus had possession of the property in which another claimed an interest ( 850, subd. (a)(2)(C)). Moreover, by purporting to direct the disposition of the house in her will (after acknowledging that her husband held title), the deceased claimed at least a beneficial interest in the property ( 850, subd. (a)(2)(D)). (Estate of Myers, supra, at p. 440.)

By contrast, Penrocks petition does not allege a fraudulent conveyance of property to defraud creditors; instead his petition seeks an order conveying title to the property from Lugo to Prevosts estate. Unlike Estate of Myers, Penrock makes no claim pursuant to section 850, subdivision (a)(2)(C), that Prevost died in possession of, or holding title to, real property, and that the property or some interest therein is claimed to belong to another. Penrock does claim that Prevost died with claims greater than the beneficial interest of the deceased in Estate of Myers, who purported to direct the disposition in her will of property in which she lived. There is no support for Penrocks latter claim, however. Prevost had only a contractual claim on the Crockett property, based on the joint venture agreement which stated that GP [an apparent misprint for MPMichael Prevostreferred to elsewhere in the joint venture agreement] shall receive any and all remaining profits after herein described LP priority capital, interest and profit deductions. (Sic.) Penrock provides no argument or legal authority that such a contractual future interest constitutes a beneficial interest in the Crockett property sufficient to support a section 850 petition.

Penrock has not shown that decedent Prevost had a claim to the Crockett property which was a sufficient basis for a section 850 petition seeking conveyance of title to, and possession of, that real property to Prevosts estate.

2. Neither of Two Rulings Denying Lugos Motions to Expunge Penrocks Lis

Pendens on the Crockett Property Is a Basis for Reversing the Order Denying

Penrocks Petition

Penrock refers to a notice of pending action recorded after the opening of Prevosts estate and filing the petition to administer Prevosts estate. The record does not contain the notice of pending action, although Penrock cites a June 8, 2004, letter to Hebb of Lugo informing Hebb that a lis pendens was recorded against the Crockett property. Penrock argues that by twice refusing to order that this lis pendens be expunged, the trial court recognized Prevosts claim to the Crockett property.

The trial court first refused to order Penrocks lis pendens expunged when the court granted defendants motion for judgment. Of the defense request to quash the lis pendens, however, the trial court stated: Thats not part of this proceeding. . . . The only thing that was sent here for trial was the petition[.] [] . . . [] I dont think the issue in the lis pendens was sent here for trial . . . because there was a hearing on the lis pendens on October 12th on motion to expunge and that was denied. [] . . . [] It was not transferred over for trial just the issue of the petition. So I think you would have to make another motion in the Probate Court.

Lugo later moved to expunge the lis pendens. The trial courts December 14, 2005, order, however, granted Penrocks ex parte application to allow filing of supplemental documents in opposition to defendants motion to expunge the lis pendens, and denied defendants motion without prejudice.

Thus neither ruling was on the merits of the motion, neither ruling was inconsistent with the trial courts order, and neither ruling requires reversal of that order.

3. No Error Arose From the Trial Courts Interpretation of Relief Requested by

Penrocks Petition or From the Trial Courts Refusal to Grant Equitable Relief

Penrock claims that the trial court unreasonably interpreted the petition as seeking transfer of 100 percent of title to the Crockett property to Penrock, failed to recognize other relief requested in the petition and in later pleadings seeking a sale of the property by the court and distribution of proceeds to Lugo and to Prevosts estate according to the joint venture agreement, and failed to consider other remedies allowed by section 850.

Penrocks section 850 petition sought an order that Lugo immediately convey title to the Crockett property to NAA/Parkfield Ventures and deliver possession of that property to Penrock. The petition also sought an order containing the following relief: Should the property be sold, Richard Hebb of Lugo Land, Inc. and Petitioner are to execute all documents necessary to fund an escrow account to hold any monies received until the Court can order an appropriate disbursement of escrow funds between the Decedents estate and Richard Hebb of Lugo Land, Inc. The petition also sought an order [t]hat all monies received as a result of any sale of the real property be placed in an escrow account until the Court determines the appropriate division of any profits from the sale. This relief request does not contain a request for a sale of the property by the court; it seeks an order establishing an escrow to hold the proceeds of a sale of the property and an order that the court determine the division of profits from a sale. Penrocks trial statement, filed on October 24, 2005, stated that [t]he property needs to be sold in a court approved sale. Penrocks supplemental trial statement requests that the court order that the Crockett property be transferred to Penrock to market and sell the property with a court approved sale. Thus Penrock did seek transfer of title and possession to himself, and he did not request a sale by the court but contemplated a sale of the Crockett property by Penrock, the special administrator. We do not find any unreasonable interpretation of the relief sought by Penrocks petition and find no reversible error.

Penrock argues that the trial court had jurisdiction to grant equitable relief, which Penrock defines as: a sale of the Crockett property; court fees and brokers fees and commissions paid off the top; Prevosts estate would receive $60,000 equity credit; Lugo would receive its loan proceeds, plus 12 percent interest from the date it took title to the date the original transaction would have closed on or about April 20, 1004; Penrock would receive $80,000 in attorneys fees, and an additional $60,00 for Lugos wrongful retention of the Estate of Prevosts equity in the property; and all appropriate fees and penalties resulting from the usurious loan agreement would be withheld from Lugo. This relief would be in addition to an order transferring the Crockett property to Penrock so it could be sold at a court-approved sale to complete the joint venture. The evidence, however, did not show that Prevost died having a claim to real property, title to or possession of which was held by another, as required by section 850, subdivision (a)(2)(D). Prevost had a claim under a contract, the joint venture agreement; his claim was one to money, the proceeds of the contract, not to real property.

This conclusion has two consequences. First, it precludes equitable relief.  [W]here, as here, the primary right of a party is legal in its nature, as distinguished from equitable, and one for which the law affords some remedy, as here damages by way of compensation for breach of contract, a proper exercise of the equitable jurisdiction will not give equitable relief in any case where the legal remedy is full and adequate and does complete justice. [Citations.] (Wilkison v. Wiederkehr (2002) 101 Cal.App.4th 822, 834.) Second, the trial court correctly found that section 850 petition was not the appropriate form for the action, which should be determined in civil court. The court may not grant a petition under this chapter if the court determines that the matter should be determined by a civil action. ( 856.5)

Penrock also argues that substantial evidence does not support the trial courts finding that transferring title to Penrock would be inequitable and that the equities do not favor Penrock and instead fall with Lugo. Penrock makes no attempt to review the substantial evidence in support of this aspect of the order; this omission is grounds to reject this claim. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246; Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1140-1141.) Penrock, moreover, does not mention that Lugo paid $296,400 to purchase the Crockett property and took legal title to that property. Penrock claimed to have $60,000 of equity in the Crockett property but that amount was approximately one-fifth the amount Lugo paid to buy the property, and Penrock did not show that this $60,000 equity represented funds Prevost invested in the property. Prevost had no title to the property. We find no error in the trial courts finding that the equities favor Lugo and not Penrock.

4. Penrock Has Not Satisfied the Requirements for Imposition of a Constructive

Trust or for a Resulting Trust

Penrock claims he presented sufficient trial evidence to establish the imposition of a constructive trust, and thus the trial court erroneously granted Lugos motion for judgment. Penrock also argues that the facts support a resulting trust. We disagree.

a. Penrock Has Not Satisfied Requirements for a Constructive Trust

One month before trial, in a second supplement to the petition, Penrock requested an order declaring that Lugo held the Crockett property in a constructive trust for Prevosts Estate, subject to Lugos loan to purchase the property and to the provisions of the joint venture agreement. Penrocks trial statement and supplemental trial statement both asserted that Lugo had held Prevosts $60,000 equity interest in the Crockett property in a constructive trust.

A constructive trust requires: the existence of a res (property or some interest in the property); the plaintiffs right to that res; and the defendants acquisition of the res by some wrongful act. (Calistoga Civic Club v. City of Calistoga (1983) 143 Cal.App.3d 111, 116.) Imposition of a constructive trust does not require fraud or intentional misrepresentation; [a]ll that must be shown is that the acquisition of the property was wrongful and that the keeping of the property by the defendant would constitute unjust enrichment. (Ibid.) The constructive remedy exists to compel transfer of property from the person wrongfully holding it to the rightful owner. (Communist Party v. 522 Valencia, Inc. (1995) 35 Cal.App.4th 980, 990.) A constructive trust cannot exist unless there is evidence that property has been wrongfully acquired or detained by a person not entitled to its possession. (Id. at p. 991, italics omitted.)

Although Penrock argues that when the Crockett property was purchased from Ruiz, Parkfield Ventures had $60,000 of equity and the balance of the closing proceeds was a loan from Lugo, no evidence is cited for either point. The only evidence for $60,000 of equity belonging to Parkfield Ventures is the provision in the February 5, 2004, judgment stating that the purchase price to be paid to Ruiz as the seller would be $350,000, that Ruiz would net $290,000, and would credit $60,000 to Parkfield Ventures. There is no evidence that a sale pursuant to this judgment ever took place. Instead, nearly three months earlier, Ruiz sold the Crockett property to Lugo, which paid $296,400 to purchase the property. No evidence supports Penrocks assertion that Lugo loaned the purchase money. Since the evidence does not support either the existence of Prevosts $60,000 credit in the property or that Lugo loaned money to purchase the property, there is nothing to support Penrocks conclusion that Prevost has a 100 percent interest in legal title to the property, subject to Lugos loan.

Penrock has not established that he has a right to the res of the Crockett property, or that Lugo wrongfully acquired that res. Therefore he has not satisfied the necessary requirements for the imposition of a constructive trust.

b. Under the Circumstances of This Case, No Resulting Trust Arises

Penrock also argues that the facts support a resulting trust. Penrock cites Civil Code section 853 as providing for a resulting trust when a transfer of real property is made to one person and another person pays the consideration for that real property transfer. Although Civil Code section 853 was repealed in 1986 (Stats. 1986, ch. 820,  5, operative July 1987), that repeal did not alter the common law as to resulting trusts. ( 15002, 15003, subd. (a).)

Where a transfer of property occurs in circumstances showing that the transferee was not intended to take the beneficial interest, a resulting trust enforces the parties inferred intent. Ordinarily a resulting trust arises in favor of a party who pays the purchase price of property but another party takes title to that property. (Lloyds Bank California v. Wells Fargo Bank (1986) 187 Cal.App.3d 1038, 1042-1043.) The resulting trust arises in this circumstance  because it is the natural presumption in such a case that it was their intention that the ostensible purchaser should acquire and hold the property for the one with whose means it was acquired. [Citations.] [Citation.] (Id. at p. 1043..) In this case no resulting trust arises, because the same partyLugopaid the purchase price of the Crockett property and took title to that property. The evidence, moreover, does not show that Lugo purchased the Crockett property with the intent that Prevost or NAA/Parkfield Ventures would share title to and ownership of that property, and the evidence does not give rise to any inference of such intent. (Id. at p. 1042; Majewsky v. Empire Constr. Co., Ltd. (1970) 2 Cal.3d 478, 485.) No resulting trust arose.

5. Lugo Has Not Shown That the Appeal Is Moot, or That This Court Should

Impose Sanctions for a Frivolous Appeal

Lugo claims that because Penrock filed a civil complaint for specific performance regarding the Crockett property after the denial of his section 850 petition, this appeal is moot. The record on appeal contains no evidence concerning Penrocks action for specific performance. In the case Lugo cites to support its argument that this appeal is moot, the appellants compliance with a writ issued by the trial court made it impossible for the Court of Appeal to grant any effective relief. (MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 214.) Here, by contrast, this courts reversal of the order denying Penrocks petition would provide effective relief and the case could proceed in Probate Court. We do not find that the appeal is moot.

We also deny Lugos request that this court impose sanctions on Penrock for filing a frivolous appeal. California Rules of Court, rule 8.276(e)(1)(A) authorizes this court to impose sanctions on a party or an attorney for [t]aking a frivolous appeal or appealing solely to cause delay[.] In general, an appeal should be held to be frivolous only when it is prosecuted for an improper motive--to harass the respondent or delay the effect of an adverse judgment--or when it indisputably has no merit--when any reasonable attorney would agree that the appeal is totally and completely without merit. [Citation.] (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) This appeal does not meet this standard, and we deny Lugos request for sanctions on appeal.

DISPOSITION

The order is affirmed. The respondents request for sanctions is denied. Costs on appeal are awarded to defendant Lugo Land Corporation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

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[1] Unless otherwise specified, statutes in this opinion will refer to the Probate Code.

[2] An appeal may be taken from an order adjudicating the merits of a claim made under section 850 ( 1300, subd. (k)).

[3]. The opening brief also cites a portion of closing argument by plaintiffs attorney. It is elementary that statements by counsel in closing argument are not admissible evidence and cannot be cited as evidence on appeal. (Evid. Code, 140; County of Alameda v. Moore (1995) 33 Cal.App.4th 1422, 1426; see also People v. Perez (1992) 2 Cal.4th 1117, 1126.)