Bugbee v. Ford CA1/2

Filed 9/30/20 Bugbee v. Ford CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

ROBERT BUGBEE,
Plaintiff, Cross-Defendant and
Appellant, A158849

v. (Humboldt County
MARY DAWN FORD, as Trustee, Super. Ct. Nos. PR180250,
etc. CV190046)
Defendant, Cross-Complainant
and Respondent.

Plaintiff Robert Bugbee and decedent Joann M. McKenzie had been in
a nonmarital, cohabitating relationship for 22 years when McKenzie died.
Bugbee filed a petition seeking reimbursement for money he spent on home
improvement and maintenance, car acquisition and maintenance, and
vacations during their relationship, and defendant Mary Dawn Ford filed a
cross-complaint against Bugbee for ejectment and wrongful occupation of
McKenzie’s house. Following a court trial, judgment was entered in favor of
Ford.
Bugbee’s appellate briefing is not a model of clarity, but it appears his
arguments are that the trial court failed to rule on his petition brought under

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Probate Code1 section 850 and that the trial court improperly awarded
respondent damages for wrongful occupation of McKenzie’s house.2
We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
Petition
On October 23, 2018, Bugbee filed a “petition pursuant to Probate Code
section 850, et seq.; and related civil causes of action” against Ford as
successor trustee of the Joann M. McKenzie 2016 trust (McKenzie trust)
and/or as personal representative of the estate of Joann M. McKenzie
seeking, among other things, payment “for all expenses made on behalf of”
McKenzie by Bugbee and a determination that Ford “breached the oral
contract entered between [McKenzie] and [Bugbee].” Ford is McKenzie’s
daughter.
Bugbee alleged the following. He and McKenzie were in a relationship
for more than 20 years “of mutual caring and support, sharing their lives
together.” When they began their relationship, McKenzie’s house on
Anderson Avenue in McKinleyville (Anderson house) “was in dire need of
maintenance, basic repairs and remodel.” Bugbee offered to pay for home
improvements, and McKenzie “agreed that all money spent by Petitioner
would be paid back.” For over 22 years, Bugbee paid nearly all maintenance,
repair, and remodel costs for the Anderson house. “[U]nder the same

1 Further undesignated statutory references are to the Probate Code.
2The opening brief reports that Bugbee died shortly after entry of
judgment. We retain the original case title because we have not received a
request for substitution. (See Konig v. Fair Employment & Housing Com.
(2002) 28 Cal.4th 743, 745–746, fn. 3.)

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agreement,” Bugbee paid for nearly all of McKenzie’s vehicle expenses
(including buying a car) and extended trips to Hawaii and Arizona.
McKenzie died on July 25, 2018. On October 4, 2018, Ford, as trustee
of the McKenzie trust, caused to be served a “Notice of Landlord’s Intention
to Enter Dwelling Unit-To: Tenant at Will, Robert Bugbee” for the Anderson
house.
Bugbee alleged, “the amounts he spent on behalf of decedent to correct
deferred home maintenance, make improvements, as well as provide a
vehicle for decedent, and decedent’s travel costs, upon decedent’s death, are
not assets of decedent’s trust or estate, but belong to” Bugbee, citing section
850, subdivision (a)(3)(A).
Bugbee asserted claims of (1) breach of contract, based on an alleged
oral or implied-in-fact contract, the terms of which were that Bugbee “agreed
to pay expenses alleged herein so that [McKenzie] could enjoy all benefits
during her lifetime, to be reimbursed only following [McKenzie]’s death”; (2)
negligent misrepresentation, based on the allegation that McKenzie
“represented to [Bugbee] that he or his estate, depending on the
circumstances, would be reimbursed for all of his expenditures in the house,
car, and travel, after [McKenzie’s] death, as alleged herein”; and (3) false
promise, based on allegations McKenzie “made promises to [Bugbee] that [he]
would be reimbursed for expenditures made on [her] behalf,” which Bugbee
reasonably relied on.
He also alleged that he was 90 years old and that Ford had “wrongfully
taken, or concealed, or disposed of property belonging to” him through the
commission of elder financial abuse.

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 Bugbee later added a fourth claim for “constructive trust,” alleging he
had “equitable title interest” in the Anderson house based on his investment
in maintaining the property for 22 years.
Cross-Complaint
On April 15, 2019, Ford file a cross-complaint for ejectment and
wrongful occupation damages. She alleged as follows. McKenzie owned the
Anderson house, first as an individual and later as trustee of the McKenzie
trust, and the Anderson house was devised to the beneficiaries of the
McKenzie trust.
Since approximately 1996, Bugbee lived with McKenzie in the
Anderson house “rent-free and with virtually no contribution to monthly
utility bills, as an at-will tenant,” in his “capacity as [McKenzie]’s boyfriend.”
Ford alleged that Bugbee acknowledged in his deposition of February 7, 2019,
that he had no agreement with McKenzie allowing him to reside in the
Anderson house following McKenzie’s death, but he continued to wrongfully
occupy the house.
Trial
A court trial was held on June 3–4, 17–19, and 27, 2019. There is no
transcript of the trial in the record on appeal. According to Ford, Bugbee
failed to arrange for a court reporter.
The parties submitted trial briefs.
In his trial brief, Bugbee asserted his action was for recovery of his
“separate property,” and cited Marvin v. Marvin (1976) 18 Cal.3d 660
(Marvin) and Estate of Black (1984) 160 Cal.App.3d 582.3

Bugbee quoted Estate of Black for its description of Marvin: “In the
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Marvin decision, the California Supreme Court held that a party to a
nonmarital living arrangement may be entitled to enforce property rights
based upon express or implied in-fact agreement with the cohabitant, and

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 Bugbee argued Ford held “only bare legal title to” the Anderson house
“against the equitable title interest petitioner gained by his separate property
expenditures.” He claimed evidence would show he spent $182,365.86 on
home repair and improvements, $70,357.78 for McKenzie’s vehicle, a
Cadillac, and $43,007.91 on McKenzie’s trips/vacations.4
In her trial brief, Ford asserted McKenzie and her husband acquired
the Anderson house in the 1960’s, and McKenzie became the sole owner of
the house upon her husband’s death in 1994. She argued Bugbee’s claim for
continued possession of the Anderson house failed as a matter of law because
the alleged oral or implied contract was for monetary reimbursement only
and because any claim to real property based on an unwritten contract would
violate the statute of frauds. Ford asserted evidence would show that she
gave Bugbee 60 days from September 1, 2018, to surrender the house, so
holdover damages for rent should accrue beginning November 1, 2018. She
further sought tort damages and attorney’s fees.
Statement of Decision
The trial court’s “Statement of Decision After Court Trial” was filed
August 23, 2019; it ran to 14 pages. The court found the following facts.
In 1996, Bugbee moved into the Anderson house. The house was
undergoing significant remodeling before and after he moved in. Bugbee
partly paid for remodeling the house in the mid-to-late ‘90’s. After the
remodel was completed in the late ‘90’s, McKenzie and Bugbee were very

that other equitable remedies may be available to protect the reasonable
expectations of a nonmarital partner.” (160 Cal.App.3d at p. 584, fn. 2.)
4 Bugbee also asserted he spent a minimum of $278,292.54 on joint
living expenses; he characterized this spending as a “gift to the community.”

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pleased with the Anderson house, and McKenzie “stated that this was a
house she and Mr. Bugbee ‘could live in for the rest of their lives.’ ”
At all times, legal title to the Anderson house was held in McKenzie’s
name or in the name of her trust. Bugbee knew title to the house was in
McKenzie’s name and later in the name of her trust, and they never talked
about adding Bugbee to the title or placing a lien on the house in Bugbee’s
favor.
During their 22-year relationship, Bugbee paid for many but not all
household expenses from which both he and McKenzie benefitted. He paid
for many vacations and trips they took together. Bugbee did not pay rent,
insurance, or property taxes while living at the Anderson house. He and
McKenzie did not have a joint bank account and did not commingle funds.
Bugbee and McKenzie often presented themselves to the public as
husband and wife and wore wedding rings, but they never married or
registered as domestic partners. Together, they made the deliberate decision
not to marry, so McKenzie’s pension benefits would not be reduced. They
talked with each other about various financial decisions during their
relationship. Bugbee bought a Cadillac that was primarily for McKenzie’s
use. Bugbee and McKenzie held title to the car as joint tenants, and title
passed to Bugbee upon McKenzie’s death.
In 2016, Bugbee knew McKenzie was preparing her estate plan; he did
not ask McKenzie to include him or the purported debt she owed him in her
estate plan. In 2016, McKenzie established a trust, of which she was the
trustee, and executed a pour-over will. Bugbee was not a beneficiary of the
trust, and “he was not an heir to [her] estate.” The trust included the
direction that the Anderson house was to be sold within 60 days of her death

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with the proceeds to be divided among the beneficiaries. Ford became trustee
upon McKenzie’s death.
McKenzie did not ask Bugbee to pay for remodeling expenses,
household expenses, vacation or vehicle costs, and McKenzie “did not agree or
promise to repay” Bugbee for these expenditures either. McKenzie did not
promise or agree that Bugbee could live in the Anderson house after her
death. The current fair market rental value of the house is $2,500 per
month.
The court reached the following conclusions of law.
McKenzie did not make any promises to Bugbee and did not undertake
any obligations to him sufficient to constitute either an oral contract or an
implied-in-fact contract. The court noted that the only evidence that
McKenzie understood Bugbee was making a loan that she was obligated to
repay was Bugbee’s testimony, and he had an obvious bias. There was no
corroborating evidence and “insufficient evidence regarding the terms of the
loan, the total amount of the loan, or the interest rate to be charged, if any.”
There was likewise “insufficient evidence from which to conclude there
was a tacit understanding between Mr. Bugbee and Ms. McKenzie regarding
repayment or living in the house after Ms. McKenzie’s death” to support a
Marvin (supra, 18 Cal.3d 660) claim.
“As to a claim in quantum meruit, assuming that ‘household services’
could include payment of household expenses, travel, and remodeling, Mr.
Bugbee failed to introduce sufficient evidence that his financial contributions
exceeded the value of what he received (such as 22 years of staying in the
house rent-free).”

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 As to a property claim in the Anderson house, the evidence was
insufficient to rebut the presumption that McKenzie had sole ownership of
the house.
There was no evidence Bugbee and McKenzie entered into a pooling or
asset-sharing agreement. Instead, the court found their “treatment of their
expenses [wa]s consistent with an intent to preserve economic independence.”
Although Bugbee argued he was entitled to return of his “separate
property,” the trial court wrote that he cited no authority for the proposition
that “separate property” “is a doctrine that applies outside of
marital/registered domestic partner relationships, nor has the Court located
any such authority. There is no corollary to the family law doctrines of
community property and separate property in a non-marital relationship.”
The trial court explained, “Absent a marital or registered domestic
relationship, any judgment in favor of a non-marital cohabitant ‘must be
supported by some recognized underlying obligation in law or in equity. A
court of equity admittedly has broad powers, but it may not create totally
new substantive rights under the guise of doing equity,’ ” quoting Marvin v.
Marvin (1981) 122 Cal.App.3d 871, 876.
Concluding its legal findings in respect to “Marvin Claims and
Equitable Relief,” the court observed that Bugbee’s expenditures looked like
gifts and ruled that Bugbee failed to prove his claims. “[T]he evidence of Mr.
Bugbee’s generosity towards Ms. McKenzie, his deep emotional connection
with Ms. McKenzie and her family, and the complete lack of corroborating
evidence that Ms. McKenzie voluntarily undertook an obligation to repay Mr.
Bugbee, supports a conclusion that the monies Mr. Bugbee spent during the
relationship were gifts. Civ. Code § 1146 (‘A gift is a transfer of personal
property, made voluntarily, and without consideration’); Burkle v. Burkle

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(2006) 141 Cal.App.4th 1029, 1037–1038 (in the absence of any evidence of
the terms of a purported loan, and the failure to tell the alleged borrower that
the funds were a loan that the borrower would be obligated to repay with
interest, and the lack of any agreement to loan terms, a trier of fact could
reasonably infer that the purported lender intended to gift the funds);
[citation]. However, it was not Respondent’s burden to show what the
transactions were (gift or otherwise). Instead, Petitioner [Bugbee] had the
burden to show that the transactions, however characterized, included an
obligation by Ms. McKenzie to return the funds Mr. Bugbee spent while
cohabitating with Ms. McKenzie, or otherwise gave him the right to stay in
the house after Ms. McKenzie’s death. The Court concludes Petitioner failed
to meet his burden.”
The court went on to find insufficient evidence to show negligent
misrepresentation or false promise. It found Bugbee failed to establish a
claim for elder abuse and failed to prove Ford engaged in bad faith or
fraudulent activities.
The court found in favor of Ford on her cross-complaint. It found
Bugbee failed to show any legal or equitable right to remain in the Anderson
house, and ordered Bugbee to pay the trust rent at $2,500 per month from
November 1, 2018, up to the date of entry of judgment, then post-judgment
daily rent at $82.19 per day until Bugbee vacated the property.
DISCUSSION
A fundamental principle of appellate review is that “the trial court’s
judgment is presumptively correct, such that error must be affirmatively
demonstrated, and where the record is silent the reviewing court will indulge
all reasonable inferences in support of the judgment. [Citations.] This
means that an appellant must do more than assert error and leave it to the

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appellate court to search the record and the law books to test his claim. The
appellant must present an adequate argument including citations to
supporting authorities and to relevant portions of the record. [Citations.] . . .
[O]rdinarily, errors not reflected in the trial record will not, and indeed
cannot, sustain a reversal on appeal.” (Yield Dynamics, Inc. v. TEA Systems
Corp. (2007) 154 Cal.App.4th 547, 556–557.)
“Where no reporter’s transcript has been provided and no error is
apparent on the face of the existing appellate record, the judgment must be
conclusively presumed correct as to all evidentiary matters. To put it another
way, it is presumed that the unreported trial testimony would demonstrate
the absence of error. [Citation.] The effect of this rule is that an appellant
who attacks a judgment but supplies no reporter’s transcript will be
precluded from raising an argument as to the sufficiency of the evidence.”
(Estate of Fain (1999) 75 Cal.App.4th 973, 992.)
With these principles in mind, we consider Bugbee’s appellate claims.
A. Determination of Bugbee’s Section 850 Petition
Under section 850, subdivision (a)(3)(A), an interested person may file a
petition “[w]here the trustee is in possession of, or holds title to, real or
personal property, and the property, or some interest, is claimed to belong to
another.” (§ 850, subd. (a)(3)(A).)
Bugbee argues the court’s statement of decision “applied only to the
related civil actions pled, not to [his] vested legal constitutional right to
reimbursement of his own separate property sought in the Probate Code
section 850 Petition.” Bugbee’s arguments are difficult to follow, and we
discern no merit to them.
To the extent Bugbee believes he could be entitled to a monetary award
or property interest in the Anderson house under section 850 independent of

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his legal theories for recovery (breach of contract, negligent
misrepresentation, false promise, constructive trust/“equitable title interest”),
he is mistaken. The trial court addressed Bugbee’s apparent
misunderstanding in its statement of decision: “Probate Code section 850 et
seq. does not create independent substantive rights, but instead establishes
who has standing to bring a claim in probate, and a mechanism to enforce
substantive rights in a probate proceeding.” The trial court cited Estate of
Kraus (2010) 184 Cal.App.4th 103, 117–118, which explained that section 850
et seq. “provides the probate court with a mechanism to determine rights in
property belonging to a decedent or to someone else.” (Italics added.) Section
850 does not provide a substantive property right.
To the extent Bugbee’s argument is instead that the trial court failed to
address his “separate property” theory for recovery, he is also mistaken. The
trial court clearly addressed this theory, explaining to Bugbee that the
concept of “separate property” (and, we note, the related concept of
“community property”) does not apply “outside of marital/registered domestic
partner relationships.”5
Under a separate argument heading, Bugbee asserts he “is entitled to
the same legal protections as if there was a marriage certificate.” He cites no
legal authority for his position. He relies on Family Code section 2640 for the
claim that he should be reimbursed for his payments for home improvements

5 At oral argument, Bugbee’s attorney urged that Bugbee had a right to
recover his “separate property” under article 1, section 1 of the California
Constitution, which recognizes all people have inalienable rights including
“acquiring, possessing, and protecting property.” Bugbee is claiming that
money he spent over more than 20 years should be repaid by McKenzie’s
estate. Bugbee needs a legal theory for why this should be so, and a
sweeping reference to property rights will not suffice.

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from his “separate property.”6 But our high court held in Marvin, “The
provisions of the Family Law Act do not govern the distribution of property
acquired during a nonmarital relationship; such a relationship remains
subject solely to judicial decision.” (Marvin, supra, 18 Cal.3d at p. 665; see
Lanz v. Goldstone (2015) 243 Cal.App.4th 441, 465 [noting this holding has
been “confirmed many times since” Marvin].)
Elsewhere, Bugbee refers to his own testimony, suggesting the trial
court was required to accept his testimony as true. This appears to be a
claim that insufficient evidence supported the trial court’s judgment. But the
absence of a reporter’s transcript in this case precludes an appellate
argument as to the sufficiency of the evidence. (Estate of Fain, supra, 75
Cal.App.4th at p. 992.) Moreover, “[a] trier of fact is free to disbelieve a
witness, even one uncontradicted, if there is any rational ground for doing
so.” (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1043.) Here, the trial court
explained that it found Bugbee’s testimony insufficient to prove a contract
existed because of his obvious bias.
Bugbee also argues he did not make a gift of his property to McKenzie
as a matter of law. Again, however, he refers to his testimony (“it is clear
from Petitioner’s testimony at trial”), but the absence of a reporter’s
transcript is fatal to this argument. (See Foust v. San Jose Construction Co.,
Inc. (2011) 198 Cal.App.4th 181, 186 [where the appellant argued “his trial
testimony was clear” on a point of contention, the “fatal problem” with the

6Family Code section 2640, subdivision (c), provides, “A party shall be
reimbursed for the party’s separate property contributions to the acquisition
of property of the other spouse’s separate property estate during the
marriage, unless there has been a transmutation in writing pursuant to
Chapter 5 (commencing with Section 850) of Part 2 of Division 4, or a written
waiver of the right to reimbursement.”

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appeal was his failure to provide reporter’s transcript or any other adequate
statement of the evidence].)
Finally, Bugbee contends the trial court misapplied the financial elder
abuse law. This contention is premised on his claim that the trial court failed
to recognize his “absolute right to recover his separate property
expenditures.” But, as we have seen, his “separate property” claim fails
because the Family Law Act does not govern the distribution of property
acquired during a nonmarital relationship. (Marvin, supra, 18 Cal.3d at p.
665.) Since the premise of his claim fails, Bugbee’s elder abuse appellate
claim must fail, as well.
In short, Bugbee has not shown error in the trial court’s determination
of his section 850 petition.
B. Ejectment and Wrongful Occupation Damages
Next, Bugbee asserts the trial court improperly awarded respondent
Ford rent for occupying the Anderson house beginning November 1, 2018. He
argues he was not a tenant and he “had a legal protected interest” in the
Anderson house.
Like his elder abuse appellate argument, his challenge to the damages
award fails because the premise of his challenge fails. The trial court
rejected Bugbee’s claim to a property interest in the Anderson house, and he
has shown no error in that determination.
Bugbee cites Civil Code section 3335 on willful holding over, but we are
at a loss to understand the relevance of the statute to this case.7 Bugbee does
not hold a life estate and is not a trustee or the guardian of a minor.

7Civil Code section 3335 provides, “For willfully holding over real
property, by a person who entered upon the same, as guardian or trustee for
an infant, or by right of an estate terminable with any life or lives, after the
termination of the trust or particular estate, without the consent of the party

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 Bugbee has not shown error in the trial court’s determination of Ford’s
cross-complaint.8
Ford asks for sanctions in her respondent’s brief, but her request is not
supported by a declaration supporting the amount sought. (Cal. Rules of
Court, rule 8.276(b)(1).) We deny Ford’s request for sanctions.
DISPOSITION
The judgment is affirmed.

immediately entitled after such termination, the measure of damages is the
value of the profits received during such holding over.”
8 Ford filed an objection to Bugbee’s reply on the ground it was
untimely filed. We accepted the filing of the reply brief, but do not consider
issues raised for the first time in the reply brief. (Employers Mutual
Casualty Co. v. Philadelphia Indemnity Ins. Co. (2008) 169 Cal.App.4th 340,
350.) Thus, we do not consider Bugbee’s suggestion that he should be treated
as a “good faith improver” or his citation to Civil Code section 741.

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 _________________________
Miller, J.

WE CONCUR:

_________________________
Richman, Acting P.J.

_________________________
Stewart, J.

A158849, Bugbee v. Ford

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