Schoenig v. Levin

Filed 5/11/06 Schoenig v. Levin CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Plaintiff Susan Schoenig alleges she is co-owner of a house on 44th Street in Sacramento and a cabin near Lake Tahoe, the deeds of which are in the sole name of her former cohabitant, Dr. Michael Levin.^[1] Susan contends she and Michael, who lived together in a committed relationship, had a verbal arrangement that they would co-own the properties, he would pay housing costs (mortgage, property taxes, etc.), and she would pay other costs (food, entertainment, some utilities). Following a bench trial on Susan's claim for constructive trust (Civ. Code, § 2224), the trial court entered judgment in favor of Michael. Susan appeals, contending (1) the trial court failed to make necessary findings; (2) judicial estoppel bars Michael from disputing that Susan is co-owner of the 44th Street house because he admitted co-ownership in prior litigation against a neighbor; and (3) the evidence is insufficient to support the judgment. Michael filed a protective cross-appeal, contending Susan's claims are barred by the statute of limitations. We shall conclude Susan's appeal lacks merit, and we therefore need not address the cross-appeal.

FACTUAL AND PROCEDURAL BACKGROUND

Susan's complaint, as originally filed on June 11, 2002, alleged four counts for (1) breach of an oral contract that Susan and Michael would each have 50-percent ownership of the 44th Street house; (2) breach of an oral contract to share ownership of a cabin near Lake Tahoe; (3) breach of an implied contract to live together as husband and wife, sharing expenses and sharing equally in property acquired during the course of the agreement; and (4) a claim for constructive trust alleging that, once the relationship ended and Susan moved out of the 44th Street house, Michael became a trustee for Susan's benefit with respect to her 50-percent ownership interest in the two houses -- 44th Street and the Lake Tahoe cabin.^[2]

The case began as a jury trial. Near the end of the presentation of Susan's case-in-chief, she moved to dismiss her contract claims and proceed on the constructive trust claim only, an equitable claim to be decided by the court. The trial court dismissed the first three counts, discharged the jury, and the case continued as a bench trial.

Susan's appellate brief contains many references to evidence not necessary to our opinion (e.g., health issues; her desire to marry and Michael's excuses for not marrying; her asserted discovery that he was having an affair, etc.). The following relevant facts are taken primarily from the trial court's statement of decision.

In 1995, Michael purchased the 44th Street house for $499,000. He secured the property with a $200,000 down payment from his own funds and thereafter made all mortgage, tax, and insurance payments on the property.

In April 1998, Michael purchased the Lake Tahoe cabin for $206,000. He made the down payment, took title as the sole owner, and thereafter made all mortgage, tax, and insurance payments from his own funds.

As stated in the statement of decision, Susan conceded title to the properties was at all times in Michael's name alone. The law presumes the owner of legal title owns the beneficial title, and imposes on the plaintiff the burden to present clear and convincing proof to rebut this presumption. (Evid. Code, § 662.) The court also said Susan did not allege fraud but alleged the wrongful conduct justifying imposition of a constructive trust was Michael's continued sole possession of the property.

The trial court rejected the defenses of statute of limitations and statute of frauds, noting case law (Marvin v. Marvin (1976) 18 Cal.3d 660) allowed this type of claim to be made between unmarried cohabiting adults despite the absence of a writing, and the limitations period does not begin to run until one partner terminates the relationship or refuses to perform.

The trial court rejected Susan's argument that Michael was judicially estopped from denying Susan's ownership interest in the 44th Street house because he assertedly took an inconsistent position (that he and Susan were co-owners of the property) in prior unrelated litigation against a neighbor (Archibald Mull) after the neighbor's tree fell on the garage of the 44th Street property, damaging the garage and personal property inside the garage. The trial court noted among other things that, to invoke judicial estoppel, the person must have taken a prior position that was clearly inconsistent and taken out of intentional wrongdoing or an attempt to obtain an unfair advantage. The court said, â€