Filed 10/1/20 Murray v. Hull CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
APRIL A. MURRAY, B290468
Successor in Interest, (Los Angeles County
etc., Plaintiff and Appellant, Super. Ct. No. BC660453)
v.
JAMES E. HULL et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Michelle Williams, Judge. Affirmed.
April A. Murray in pro. per., as Successor in Interest, etc.;
Justin R. Sarno for Plaintiff and Appellant. [Retained.]
No appearance for Defendants and Respondents.
******
A woman sued her siblings to partition the “family home”
that they jointly owned. She also sued for waste. The trial court
rejected her claims after a one-day bench trial. We conclude
there was no error, and affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts1
A. The family
As pertinent to this case, the family consists of several
individuals—Billie J. Hull (plaintiff); her mother, Annie Hull;
and various other family members, including Patricia Duplantier,
Joyce Ann Hull, Annie Davis, and Helen Parson, James Earl
Hull, Augustus Hull, William Hull and Vernon Hull.
B. The “family house”
The lawsuit deals with a residential property on South
Ward Avenue in Compton, California (the property).
The property was purchased in 1970 to serve as the “family
house.” Title to the property was taken by plaintiff and Annie
Hull, as joint tenants. Annie Hull, the family matriarch, lived in
the house on the property.
In 2000, plaintiff and Annie Hull quitclaimed title to the
property to all of the family members as joint tenants. The deed
granted title to the married family members as their “sole and
separate property.” In changing the title, “the intent of the
[family members] was that the house was ‘for the family’” and to
ensure that the family “would have a place to go.”
Over the next 16 years, the family members did some
upkeep on the property. In 2005, the family members took out a
1 These facts are drawn from the Separate Statement
prepared by the trial court, by the exhibits admitted at trial, and
by the facts deemed admitted due to a discovery violation.
2
$100,000 loan, secured by the property, to rebuild the house
“around mother.” And in 2009 or 2010, Augustus Hull painted
the house and did some other maintenance. While there was
evidence that in 2016 the property was in “bad condition” and
had several permit violations, there was no evidence of the
property’s prior value.
During this 16-year period, plaintiff was the only sibling
who paid the monthly mortgage, the property taxes, the
insurance premiums on the property, or for any upkeep,
maintenance and repairs. Two of the siblings—Joyce Ann Hull
and William Hull—lived on the property by 2016, but did not pay
plaintiff any rent. They occasionally sublet part of the property
as well.
II. Procedural Background
In August 2016, plaintiff sued all of her family members
except Helen Parson, Annie Hull and Vernon Hull (as those three
had passed away). In this lawsuit, plaintiff sought (1) to
partition the property by selling it, and (2) compensatory
damages for waste on the ground that her siblings had “caus[ed]
a diminution of value by failing and refusing to maintain its
upkeep.”2 Plaintiff attached documents to the complaint
indicating that two of the family members—Patricia Duplantier
and Annie Davis—consented to the partition by sale.
2 Four of the siblings—James Earl Hull, Augustus Hull,
Joyce Ann Hull and William Hull—filed a cross-complaint
against plaintiff for fraud, embezzlement, breach of trust and an
accounting. From the fractured record we have been provided,
we cannot ascertain what happened to the cross-complaint. But
it is of no matter because it is not at issue on appeal.
3
The trial court held a one-day bench trial in January 2018.
Plaintiff, Patricia Duplantier, James Earl Hull, Joyce Ann Hull,
and Augustus Hull each testified.
In April 2018, the trial court issued its 11-page Final
Statement of Decision. The court denied plaintiff’s request for
partition. The court recognized that joint tenants have a right to
partition their jointly owned property, but noted that they may
waive that right by entering into an express or implied
agreement not to partition. The court observed that courts may
imply such an agreement “‘where the purpose for which the
property was acquired would be defeated by a partition.’” Based
on the evidence adduced at trial, the court found “an implied, if
not express, agreement among the family members that the
property would stay in the family for use by the family” and that
“[p]artition by sale would breach this agreement.” The court
acknowledged that plaintiff and Patricia Duplantier had, in their
testimony, disputed that the intent of the siblings was to create a
“family home,” but the court found the “Hull defendants’
testimony concerning the purpose of the transfer and loan . . . to
be substantially more credible than [p]laintiff or . . . Duplantier.”
The court also denied plaintiff’s claim for waste because she had
adduced “almost no evidence to support her claim that
. . . Augustus [Hull] and Joyce [Ann Hull] have caused waste in
excess of any depreciation in the value of the property through
the exercise of their legal rights.”
Plaintiff filed this timely appeal. While the appeal was
pending, she passed away and we substituted April Murray, her
successor in interest, as the appellant (plaintiff). For ease of
reference, we will continue to use the term “plaintiff.”
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DISCUSSION
Plaintiff argues that the trial court erred in rejecting her
claims for partition and waste. We review the trial court’s legal
rulings de novo and its factual findings for substantial evidence.
(Siry Investments, L.P. v. Farkhondehpour (2015) 238
Cal.App.4th 725, 728-729.)
I. Claim for Partition
When a parcel of property is owned by joint tenants, each
has the right to sever the joint tenancy by seeking judicial
partition of the property. (Code Civ. Proc., § 872.710, subd. (b)3
[creating qualified statutory right to partition]; Estate of Propst
(1990) 50 Cal.3d 448, 455 [noting “common law” right to
partition].) However, a joint tenant’s right to partition is “not
absolute” (De Harlan v. Harlan (1946) 74 Cal.App.2d 555, 560),
and may be waived by a prior express or implied agreement by
the joint tenants not to partition. (§ 872.710, subd. (b); Orien v.
Lutz (2017) 16 Cal.App.5th 957, 962; Pine v. Tiedt (1965) 232
Cal.App.2d 733, 738 (Pine); Heber v. Yaeger (1967) 251
Cal.App.2d 258, 262.) Courts will imply such an agreement if
“the purpose for which the property was acquired would be
defeated by” partition (Thomas v. Witte (1963) 214 Cal.App.2d
322, 327; Pine, at p. 739) or if “partition would frustrate the very
purpose for which the land . . . is now being used” (Pine, at p.
740).
The trial court applied this governing law and its finding
that the family members had entered into an express or implied
agreement not to partition the property is supported by
substantial evidence. At trial, Augustus Hull testified that “the
3 All further statutory references are to the Code of Civil
Procedure unless otherwise indicated.
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intent of the [family]” in putting title to the property in all of the
siblings’ names in 2000 “was that the house was ‘for the family’”
and to ensure that the family members “would have a place to
go.” The mutual intent to keep the property “in the family” was
corroborated by the specification that title was to be taken by any
married family members “as their sole and separate property.” It
is also corroborated by the parties’ conduct. The family members
took title as joint tenants rather than tenants in common,
ostensibly because joint tenancy assures that, as each family
member dies, his or her interest passes to the other living family
members holding title—not to anyone else. (E.g., Zanelli v.
McGrath (2008) 166 Cal.App.4th 615, 630 [“The right of
survivorship is the distinguishing feature of a joint tenancy.”];
Estate of Mitchell (1999) 76 Cal.App.4th 1378, 1385 (Mitchell)
[“‘when one joint tenant dies, [his or her interest] belongs
automatically to the surviving joint tenant(s)’”].) Consistent with
this purpose, Joyce Ann and William were living on the property
at the time plaintiff filed her lawsuit. Partitioning and selling
the property would defeat both the purpose for which the
property was acquired as a joint tenancy among all the family
members and the purpose for which it was being used in 2016
because partition and sale would mean that the property would
no longer function as a “family” house and would leave Joyce Ann
and William without a “place to go”; indeed, Joyce Ann said she
would be rendered homeless if the property were sold. (Accord,
Pine, supra, 232 Cal.App.2d at p. 739 [agreement not to partition
implied where property was “given to one of the spouses for
occupancy” and partition would result in her eviction].)
Plaintiff attacks the trial court’s partition ruling with what
boil down to five arguments.
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First, she urges us to review the evidence de novo. For
support, she cites Bixby v. Pierno (1971) 4 Cal.3d 130, 141-147,
Interstate Brands v. Unemployed Ins. Appeals Bd. (1980) 26
Cal.3d 770, 774-780, and other cases. All of these cases deal with
the standard of review applicable to writs of administrative
mandamus under section 1094.5; they are accordingly irrelevant.
Where, as here, we are reviewing a trial court’s factual findings
regarding partition—and, even more specifically, its findings
regarding the existence of an agreement not to partition—we
review those findings solely for substantial evidence.
(Cunningham v. Frymire (1958) 160 Cal.App.2d 726, 729 [so
holding]; Miranda v. Miranda (1947) 81 Cal.App.2d 61, 68-69
[same].)
Second, plaintiff argues that substantial evidence does not
support the court’s finding of an agreement not to partition the
property because (1) plaintiff testified that there was no such
agreement and, as a matter of logic, she would never have
entered into an agreement that left her paying all of the expenses
while her other family members paid nothing, and (2) the court’s
finding contradicts the facts that the court previously deemed to
be established due to her family members’ refusal to respond to
one of her discovery requests. We reject both arguments.
Although plaintiff testified that there was no such agreement,
Augustus Hull testified that there was, the trial court found him
more credible on this point, and his testimony alone constitutes
substantial evidence. (E.g. People v. Lewis (2001) 25 Cal.4th 610,
646 [“The testimony of a single witness . . . can constitute
substantial evidence.”]; In re Lana S. (2012) 207 Cal.App.4th 94,
103 [appellate courts cannot generally revisit a trial court’s
credibility findings].) Further, plaintiff’s argument that she
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would never have agreed to forego partition had she known her
other family members would contribute nothing in the future
impermissibly asks us to infer her intent at one point in time
from what happened afterwards; we decline to construe the
parties’ intent through the distorting lens of hindsight. And
although the trial court did deem several facts to be conclusively
admitted as a sanction for a discovery violation (§ 2033.280; St.
Mary v. Superior Court (2014) 223 Cal.App.4th 762, 783), we
disagree with plaintiff that those facts were “outcome
determinative” in her favor. To the contrary, the facts deemed to
be conclusively admitted were that plaintiff was the only sibling
who paid the monthly mortgage, paid the property taxes, paid the
insurance premiums, and paid for the upkeep, maintenance and
repairs on the property. These facts do not speak to the parties’
intent in transferring the property in 2000 or to its current use,
and thus are not relevant to the factual findings on which the
trial court’s decision ultimately turns. Plaintiff urges that the
trial court should have mentioned the conclusively established
facts in its order, but its failure to do so does not change their
lack of relevance.
Third, plaintiff contends that partition is a favored
remedy—both generally, because it fosters the alienability of
property (e.g., Summers v. Superior Court (2018) 24 Cal.App.5th
138, 142; Cummings v. Dessel (2017) 13 Cal.App.5th 589, 596-
597; Civ. Code § 880.020, subd. (a)(1) [“[R]eal property . . . should
be made freely alienable and marketable to the extent
practicable”]), and specifically here, because it would allow the
cost of the property’s permit violations to be spread out among all
the siblings. Neither contention overrides the trial court’s factual
finding that there was an agreement not to partition. (Accord,
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Civ. Code § 880.030 [“Nothing in this title shall be construed to
. . . [l]imit [the] application of the principles of waiver . . .”], italics
added.)
Fourth, plaintiff cites a number of cases that she claims
support reversal of the trial court’s ruling or otherwise impeach
the trial court’s analysis. They do not. (See De Roulet v. Mitchel
(1945) 70 Cal.App.2d 120, 123-124 [addressing issue of partition
in kind versus partition by sale]; Formosa Corp. v. Rogers (1951)
108 Cal.App.2d 397, 409 [same]; Friedman v. Friedman (1993) 20
Cal.App.4th 876, 883-884 [addressing so-called “Marvin
contracts” between non-married spouses].)
Lastly, plaintiff accuses the trial court of allowing its ruling
to be “dictated by the subjective consequences of ordering a
partition,” and as evidence of the court’s perceived bias, cites a
passage from the statement of decision summarizing Joyce Ann
Hull’s testimony. That passage reads: “With great emotion,
[Joyce Ann Hull] testified, ‘I want to live in my mommy’s house.’”
We reject plaintiff’s suggestion that a trial court’s presumptively
accurate summary of testimony, including its observation of
witness demeanor, renders the court biased.
II. Claim for Waste
One joint tenant may sue another for waste (§ 732), but
such a claim requires a showing that the offending tenant’s
conduct has caused a “‘substantial depreciation [in] the market
value’” of the property at issue. (Smith v. Cap Concrete, Inc.
(1982) 133 Cal.App.3d 769, 775-776; Schellinger Brothers v.
Cotter (2016) 2 Cal.App.5th 984, 1001.) The trial court found that
plaintiff had failed to show a substantial depreciation in the
market value of the property, and that finding is supported by
substantial evidence. There was evidence that the property was
9
in “bad condition” in 2016, but there was no evidence of its
condition or value at other prior points in time; without that
metric, there is no way to know whether the property’s value had
gone up or down due to the siblings’ conduct. Further, our
affirmance of the trial court’s ruling on partition means that
April Murray, as successor to Billie Hull, no longer has standing
to seek redress for waste; only a property owner may bring a
claim for waste (Cornelison v. Kornbluth (1975) 15 Cal.3d 590,
597-598; § 732), and Billie Hull’s ownership interest in the
property—by virtue of the joint tenancy and the absence of any
partition of that joint tenancy—passed to the other family
members upon her death, not to April Murray. (Mitchell, supra,
76 Cal.App.4th at p. 1385; cf. Hammond v. McArthur (1947) 30
Cal.2d 512, 515 [filing a partition claim does not terminate joint
tenancy].)
Plaintiff offers two arguments in response. First, she
argues that the trial court erred by looking to the physical
condition of the property rather than its “financial condition,”
and by ignoring that the siblings did not contribute to the
property’s expenses. These arguments invite us to consider
factors that do not have any bearing on whether the market
value of the property has changed; as a result, they are
irrelevant. Second, plaintiff asserts that her siblings’ failure to
remediate the permit violations itself constitutes waste.
Although we agree that it might constitute waste if it
substantially diminished the market value of the property,
plaintiff has offered no evidence as to whether it did.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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