Matinez v. Moreno

Filed 3/21/06 Matinez v. Moreno CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION SIX

A cotenant appeals the trial court's judgment granting partition of real property by sale. We affirm.

FACTS

The subject property is a narrow lot in Carpinteria improved with two modest sized residences. The parties to this action are the six adult children of Fidencia Moreno. Fidencia Moreno devised the property to her children in equal shares as tenants in common when she died in 1986. The will was not probated until 1993.

Ralph Moreno (hereafter "Moreno") has lived in the back house on the property since before his mother's death. In 1997, Moreno suffered a stroke that left him disabled. In 2000, Moreno's siblings signed loan documents that allowed him to borrow $33,000 from the County of Santa Barbara under a program for low income homeowners. The loan documents disclose that the purposes of the loan include increasing the "livability" of the property and to allow low income homeowners to continue to reside on their properties. The loan proceeds were used for improvements to the property to accommodate Moreno's disabilities.

In December 2003, five of the siblings (hereafter collectively "siblings") petitioned the court to partition the property by sale. Moreno, the only party who objected, is named defendant. Moreno claimed that there is an express or implied agreement not to partition and that partition is barred by laches.

Trial was before the court sitting without a jury. No party requested a statement of decision. The trial court found no agreement not to partition, and that the siblings are not barred by laches. The court entered judgment ordering the property sold and the net proceeds divided among the parties.

DISCUSSION

I

Moreno contends the trial court erred by failing to find an express or implied agreement not to partition the property.

Partition is a matter of right for any cotenant who desires it. (Penasquitos, Inc. v. Holladay (1972) 27 Cal.App.3d 356, 358.) A cotenant may, however, expressly or impliedly agree not to partition. (Ibid.)

Moreno claims his siblings made an express agreement not to partition. In support of his claim, Moreno cites a portion of his brother Edward's deposition. Moreno fails, however, to show that the deposition or the relevant portion of it was entered into evidence. We cannot consider matters that were not properly before the trial court. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 328, pp. 369-370.)

In any event, the portion of Edward's deposition that Moreno relies on would not compel the trial court to find an agreement not to partition. Edward simply testified that after his mother died, the siblings talked about selling the property. Edward told them he did not want to sell, and the matter was dropped.

"In viewing the evidence, we look only to the evidence supporting the prevailing party. [Citation.] We discard evidence unfavorable to the prevailing party as not having sufficient verity to be accepted by the trier of fact. [Citation.] Where the trial court or jury has drawn reasonable inferences from the evidence, we have no power to draw different inferences, even though different inferences may also be reasonable. [Citation.] The trier of fact is not required to believe even uncontradicted testimony. [Citation.]" (Rodney F. v. Karen M. (1998) 61 Cal.App.4th 233, 241.)

Here even the most generous reading of Edward's testimony fails to show an agreement not to partition. At most, the parties decided not to sell at the time. They did not agree not to partition in the future.

Moreno points to a loan document signed by the siblings to obtain $33,000 from Santa Barbara County. The document states that the purpose of the loan is to "increase livability of the Property" and "to aid low income homeowners in continued residence in their properties . . . . " But those words neither expressly prohibit partition nor do they compel the trial court to find an implied agreement not to partition.

II

Moreno contends the trial court erred in failing to find that the partition action is barred by laches.

Laches requires an unreasonable delay in bringing an action plus prejudice to the defendant resulting from the delay. (Miller v. Eisenhower Medical Center (1980) 27 Cal.3d 614, 624.) The existence of laches is a question of fact to be determined from all the circumstances. (Ibid.) The defendant has the burden of proving laches. (Ibid.)

There is no particular time in which an action for partition must or should be brought. (See Code Civ. Proc., § 872.010 et seq.) Any cotenant may bring it any time. Thus the trial court was not required to find there was a delay in bringing the action or that any delay was unreasonable.

This is not a case in which plaintiff passed up an opportunity to adjudicate a claim to property in a prior dissolution action. (See Simon v. Simon (1985) 165 Cal.App.3d 1044.) Nor is it a case in which plaintiff had notice he had been wronged, but delayed in bringing an action to redress the wrong. (See Rouse v. Underwood (1966) 242 Cal.App.2d 316.) Here there was no prior dissolution action, and the plaintiffs do not claim to have been wronged. They simply want to exercise their right to partition.

Nor was the trial court required to find any delay was prejudicial. Moreno had use of the premises during the years the parties refrained from partitioning the property. If anything, Moreno benefited from the claimed delay.

Moreno's reliance on Rouse v. Underwood, supra, 242 Cal.App.2d 316, is misplaced. There husband brought an action to reclaim items of personal property from his deceased wife's sisters. Husband claimed the items wife had given to her sisters were community. The trial court found plaintiff was aware of wife's activity and made no objection. The court also found that by reason of husband's delay in asserting his claim, death, age and loss of physical evidence have prejudiced defendant in the presentation of their defense.

Moreno argues that, as in Rouse, death of witnesses and his own disability have prejudiced him. But, unlike Rouse, the trial court here made no such factual findings. Nor does Moreno point to any evidence that would compel the trial court to do so.

III

Moreno contends the trial court erred in failing to grant him credit for his contributions for improvements, taxes and insurance.

Moreno's grandson testified that Moreno paid for the construction of one of the houses and paid the property taxes and insurance. Moreno claims the testimony was uncontradicted. But Moreno confuses uncontradicted evidence with credible evidence. The trial court as the finder of fact may have found this evidence not credible. (Rodney F. v. Karen M., supra, 61 Cal.App.4th at p. 241.) We must presume the court did so. (Ibid.)

In any event, Moreno cites no evidence of the amount he paid for the items for which he claims credit. In the absence of such evidence, the trial court could not award credit.

IV

Finally, the siblings request sanctions for a frivolous appeal.

Sanctions for a frivolous appeal should be used sparingly to deter only the most egregious conduct. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 651.) This is not an appropriate case for sanctions. The request for sanctions is denied.

The judgment is affirmed. Costs are awarded to respondents.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

COFFEE, J.

James W. Brown, Judge

Superior Court County of Santa Barbara

______________________________

Legal Aid foundation of Santa Barbara County and Alexander Lambrous for Defendant and Appellant.

Law Offices of Jerome Zamos and Jerome Zamos for Plaintiffs and Respondents.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Apartment Manager Attorneys.