Salazar v. Acevedo




Filed 3/2/11 Salazar v. Acevedo CA2/2




NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

ROSA MARIA SALAZAR, Plaintiff and Respondent, v. ALEJANDRO ANTONIO ACEVEDO, Defendant and Appellant.

B221257 (Los Angeles County Super. Ct. No. BC387183)

APPEAL from a judgment of the Superior Court of Los Angeles County. Joseph R. Kalin, Judge. Affirmed.

Law Office of James DeAguilera and James DeAguilera for Defendant and Appellant.

Mark M. O’Brien, a Law Corp. and Mark M. O’Brien for Plaintiff and Respondent.



This appeal concerns the division of real property between an unmarried couple, plaintiff and respondent Rosa Maria Salazar (plaintiff) and defendant and appellant Alejandro Antonio Acevedo (defendant). Plaintiff claimed a half interest in certain commercial real property located at South Boyle Avenue in Los Angeles (the property) and in a business defendant operates on that property. Defendant contended that plaintiff had no interest in the business and that he had acquired exclusive title to the property by adverse possession. Following a bench trial, the trial court ruled that the property was jointly owned by plaintiff and defendant. Defendant appeals from that ruling, which we affirm.
BACKGROUND
Plaintiff and defendant lived together for 18 years before they separated in 1999. Sometime between 1989 and 1990, defendant began operating a business known as Freeway Business Materials, which sold used construction material. Defendant operated Freeway Business Materials at the property, which was initially leased from the property owners. In 1996, plaintiff and defendant purchased the property and took title to the property as co-owners.
After the parties separated, plaintiff claimed a half interest in both Freeway Business Materials and the property, and filed this action seeking, among other things, to quiet title to and partition the property and to obtain an accounting with respect to Freeway Business Materials. Defendant filed a cross-complaint in which he claimed exclusive ownership of the property through adverse possession.
At the trial, plaintiff testified that she contributed between $27,000 and $29,000 of her own funds toward the purchase of the property and defendant contributed approximately $30,000 of his own funds. The grant deed transferring ownership of the property to the parties lists both plaintiff and defendant as co-owners.
At the conclusion of the trial, the trial court took the matter under submission. It issued a written ruling on September 28, 2009, finding that plaintiff and defendant held title to the property as co-owners. The trial court rejected defendant’s contention that he acquired exclusive ownership of the property by adverse possession, finding that he had not overcome the presumption that title to the property was other than as shown on the deed. The trial court further found that Freeway Business Materials was 100 percent owned by defendant and that plaintiff’s request for an accounting with respect to the business was barred by the statute of limitations. An interlocutory judgment was entered on November 5, 2009,^[1] stating that plaintiff and defendant each own an undivided one-half interest in the property, ordering an appraisal to determine the fair market value of the property, and ordering defendant to pay to plaintiff one-half of the fair market value, less the sum of $97,000, ^[2] within one year from the date of the appraisal. This appeal followed.
DISCUSSION
Defendant contends the trial court erred by (1) not ruling on his adverse possession claim, (2) making no findings to support the ruling, and (3) failing to find that there was a perfected adverse possession claim after finding that defendant was the sole owner of Freeway Business Materials.
The trial court’s order dated September 28, 2009, expressly rejects defendant’s adverse possession claim.^[3] That order also directs the parties to prepare a proposed statement of decision within 15 days if either of them requested a statement of decision. Neither party did so.
Code of Civil Procedure section 632 requires a trial court to issue a statement of decision explaining the factual and legal basis for its decision upon the request of any party appearing at trial.^[4] Defendant’s failure to timely request a statement of decision resulted in a forfeiture of the right to complain about the absence of specific findings in this appeal. (In re Marriage of Cauley (2006) 138 Cal.App.4th 1100, 1109, citing In re Marriage of Sellers (2003) 110 Cal.App.4th 1007, 1011.) Under these circumstances, a reviewing court must assume that the trial court made whatever findings are necessary to support the judgment and must indulge all presumptions in favor of the trial court’s order. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) We must therefore assume the trial court made the requisite findings to support its decision that plaintiff and defendant are co-owners of the property and that defendant failed to establish sole ownership by adverse possession.
The trial court did not err by finding that defendant failed to establish exclusive title to the property by adverse possession. To establish title by adverse possession, the claimant must prove the following: (1) possession must be held under either a claim of right or color of title; (2) there must be actual, open and notorious occupation of the premises in such a manner that constitutes reasonable notice to the record owner; (3) occupation must be both exclusive and hostile to the title of the true owner; (4) there must be uninterrupted and continuous possession for at least five years; and (5) the possessor must pay all of the taxes levied and assessed on the property during the five-year period. (Dimmick v. Dimmick (1962) 58 Cal.2d 417, 421-422; Sevier v. Locher (1990) 222 Cal.App.3d 1082, 1085.)
To establish “hostile” possession, the claimant must show possession that is adverse to the record owner unaccompanied by any express or inferred recognition of the owner’s rights. (Buic v. Buic (1992) 5 Cal.App.4th 1600, 1605.) Special factors apply when a person takes possession of property with the consent of the owner. Under that circumstance, the party seeking to establish title through adverse possession must make an “unqualified and definite renunciation” of the owner’s rights. (Southern Pacific Co. v. San Francisco (1964) 62 Cal.2d 50, 56.) Here, there was evidence that defendant operated Freeway Business Materials on the property with plaintiff’s knowledge and consent. While there was evidence that defendant subsequently excluded plaintiff from the business of Freeway Business Materials and the business premises, there was no evidence that defendant made an “unqualified and definite renunciation” of plaintiff’s ownership of the underlying real property. Plaintiff testified that she and defendant never discussed ownership of the property after the deed was recorded and that defendant never contested her ownership of that property. The trial court’s finding that defendant was the sole owner of Freeway Business Materials did not compel a finding that he was also the sole owner of the property on which that business was conducted.
DISPOSITION
The judgment is affirmed. Plaintiff is awarded her costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


__________________________, J.
CHAVEZ

We concur:



_____________________________, P. J.
BOREN



_____________________________, J.
DOI TODD



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