Tolmasoff v. Van Vorce CA2/4 ( 2014 )

Filed 10/14/14 Tolmasoff v. Van Vorce CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
MORRIS GEORGE TOLMASOFF, B253836
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC491350)
v.
MARY VAN VORCE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Mel Red Recana, Judge. Affirmed.
Law Offices of Jane Cervantes and Jane Cervantes for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
__________________________________
This case involves a dispute over a home located on North Rowan Avenue in
Los Angeles. Respondent Morris George Tolmasoff, Jr., who had lived there for
over two decades, secured a judgment for adverse possession in a suit brought
against appellant Mary Van Vorce and nine other relatives.1 Appellant contends
the court’s finding concerning two of the elements necessary to establish adverse
possession -- hostility and payment of property taxes -- were not supported.
Appellant did not, however, provide a reporter’s transcript of the testimony at trial,
which limits our review of the trial court’s factual findings. Perceiving no clear
error on the record provided, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Title to the subject property was transferred by deed in June 1970 to nine
children and four grandchildren of George and Esther Tolmasoff. Appellant Van
Vorce, along with her sister Aguilar, and her nieces and nephews Sandra Ann,
Cynthia, Jesse and Steven Gonzales were named in the deed.2 The other
defendants below, Susan Snook, Steven Tolmasoff, George Tolmasoff, Jr., and
Jesus Arambula, claimed to be the successors to certain of the siblings named in
1
Van Vorce is the only defendant to appeal the judgment. The other defendants
below were appellant’s sister, Julia Aguilar; appellant’s nieces and nephews, Sandra Ann
Gonzales, Cynthia Gonzales, Jesse Gonzales, Steven Gonzales, Susan Snook (also known
as Susan Tolmasoff and Susan Brown), Steven Tolmasoff, George Tolmasoff, Jr.; and
appellant’s brother-in-law, Jesus Arambula. To avoid confusion, persons with the same
surnames will be referred to by their first names.
2
Appellant Van Vorce is one of two surviving siblings. The other siblings on the
title included Morris Tolmasoff, Sr. (respondent’s father), John Tolmasoff, George
Tolmasoff, Sr. and Sarah Arambula, all of whom are now deceased. The Gonzaleses
were the children of a sibling who died prior to the 1970 title transfer.
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the deed.3 Respondent is the son of one of the siblings named in the deed, Morris
Tolmasoff, Sr., who died in 1991.
On August 31, 2012, respondent brought suit for quiet title, claiming to have
derived title to the home through adverse possession. The complaint alleged that
from 1969 to 1991, respondent’s father lived in the home and paid all the property
taxes. It was further alleged that in 1991, Morris Sr. became ill and respondent
moved in to care for him until his death later that year. Respondent claimed to
have lived in the home since 1991, and to have paid all property taxes due.
Appellant and the other defendants in the lawsuit answered and cross-claimed,
seeking partition of the property.4
After a bench trial on September 10, 2013, at which testimony was taken but
no reporter was present, the court ruled in favor of respondent. The court prepared
a written statement of decision (SOD) containing its factual findings. The court
found that respondent first occupied the property in 1991 at the request of his
father, and had lived there ever since. Respondent paid all property taxes levied
and assessed on the property during that period. The court further found that
respondent had excluded defendants and all others from use of the property and
had resisted at least eight attempts to sell the property, and that defendants had
failed to oust respondent from the property prior to his establishing adverse
possession. The SOD listed the following elements needed to establish a claim of
adverse possession: “(1) one must possess property under a claim of right or color
of title, (2) there must be actual, open and notorious occupation of the premises in
question, (3) the possession must be uninterrupted[,] (4) possession must be
3
Snook, Steven and George, Jr. are the children of George, Sr. Snook is also
reputedly John’s heir. Jesus Arambula was Sarah’s husband.
4
This was not the first suit for partition. Snook and the Gonzaleses brought an
action for partition in 1997.
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continuous for a period of at least five [] years[,] and (5) the possessor must pay all
of the property taxes levied and assessed against the property during the five year
period of the possession.” Applying its factual findings to the specific elements of
the claim, the court found that respondent had, with all defendants’ knowledge,
been in full possession of the property for 22 years, and that his possession had
been “hostile, open and continuous,” as well as “open and notorious.”
The court entered judgment for respondent. This appeal followed.
DISCUSSION
Preliminarily, we note that no respondent’s brief was filed. The rule we
follow in such circumstances “is to examine the record on the basis of appellant’s
brief and to reverse only if prejudicial error is found. [Citations.]” (Votaw
Precision Tool Co. v. Air Canada (1976) 60 Cal.App.3d 52, 55; accord, Lee v.
Wells Fargo Bank (2001) 88 Cal.App.4th 1187, 1192, fn. 7; Carboni v. Arrospide
(1991) 2 Cal.App.4th 76, 80, fn. 2.)
As noted, there was no reporter present at the trial, and therefore no
reporter’s transcript prepared for the appeal. The record consists of a clerk’s
transcript and the trial exhibits. It is universally recognized that the appellant has
the burden of showing error by an adequate record. (Ballard v. Uribe (1986) 41
Cal.3d 564, 574; In re Kathy P. (1979) 25 Cal.3d 91.) Appellate courts “adopt all
intendments and inferences to affirm the judgment or order unless the record
expressly contradicts them.” (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324.)
Where an appeal is presented to us with no reporter’s transcript, the trial court’s
findings of fact and conclusions of law are presumed to be supported by substantial
evidence, “unless the judgment is not supported by the findings or reversible error
appears on the face of the [available] record.” (Krueger v. Bank of America (1983)
145 Cal.App.3d 204, 207; accord, Nielsen v. Gibson, supra, at pp. 324-325;
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National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521.)
Put another way, “[w]here 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. . . . [I]t is presumed
that the unreported trial testimony would demonstrate the absence of error.”
(Estate of Fain (1999) 75 Cal.App.4th 973, 992, italics omitted.) The general
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.” (Ibid.)
Turning to the merits of the claim, the elements of adverse possession are
well established: “‘possession,’” which must be “‘by actual occupation under such
circumstances as to constitute reasonable notice to the owner’” and “‘hostile to the
owner’s title’”; the possessor must “‘claim the property as his own, either under
color of title, or claim of right’”; “‘[p]ossession must be continuous and
uninterrupted for five years’”; and the possessor “‘must pay all the taxes levied and
assessed upon the property during the period.’” (Nielsen v. Gibson, supra, 178
Cal.App.4th at p. 325, quoting West v. Evans (1946) 29 Cal.2d 414, 417.) “By
‘hostility’ the courts mean ‘“. . . ‘. . . the claimant’s possession must be adverse to
the record owner, “unaccompanied by any recognition, express or inferable from
the circumstances, of the right in the latter.”’ [Citation.]”’” (California Maryland
Funding, Inc. v. Lowe (1995) 37 Cal.App.4th 1798, 1806; quoting Buic v. Buic
(1992) 5 Cal.App.4th 1600, 1605.)
Where the claim is asserted against a cotenant or co-owner, “‘“additional
principles become operative. . . .”’” (Preciado v. Wilde (2006) 139 Cal.App.4th
321, 325 (Preciado), quoting Russell v. Lescalet (1967) 248 Cal.App.2d 310, 313.)
Because each tenant in common has a right to occupy the whole of the property,
“‘“[t]he possession of one is deemed the possession of all; each may assume that
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another in exclusive possession is possessing for all and not adversely to the others
. . . .”’” (Preciado, supra, at p. 325, quoting Dimmick v. Dimmick (1962) 58
Cal.2d 417, 422.) Therefore, one tenant in common cannot acquire title “‘“by
mere exclusive possession.”’” (Preciado, supra, at p. 325, quoting Russell v.
Lescalet, supra, 248 Cal.App.2d at p. 314.) “‘“‘[T]he occupying tenant must bring
home or impart notice to the tenant [or tenants] out of possession, by acts of
ownership of the most open, notorious and unequivocal character, that he intends
to oust the latter of his interest in the common property. [Citations.]’”’”
(Preciado, supra, at p. 325, italics omitted; see Estate of Hughes (1992) 5
Cal.App.4th 1607, 1612, quoting Zaslow v. Kroenert (1946) 29 Cal.2d 541, 548
[“‘An ouster, in the law of tenancy in common, is the wrongful dispossession or
exclusion by one tenant of his cotenant or cotenants from the common property of
which they are entitled to possession.’”].)
In the instant case, absent a reporter’s transcript to reflect the trial testimony,
we may presume that respondent presented evidence of all the necessary elements
of adverse possession. We need not rely entirely on such presumption, however,
as the court identified the elements of a claim of adverse possession and made
specific findings in support of its conclusion that each element had been met. The
SOD reflected the court’s specific findings that respondent had occupied the
property continuously and exclusively for 22 years; that he paid property taxes
during that entire period; that defendants were aware of his occupancy; and that the
occupancy was hostile, as respondent excluded defendants from use of the property
and interfered with at least eight attempts by his cotenants/co-owners to sell the
property. (See California Maryland Funding, Inc. v. Lowe, supra, 37 Cal.App.4th
at pp. 1802, 1806-1807 [evidence of hostility included refusing to surrender the
property and tossing away “for-sale” signs].)
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Without acknowledging the rules applicable to appeals based on incomplete
records, appellant suggests there was clear error on the face of the record, in view
of the court’s statement that appellant failed to “oust” respondent prior to his
establishing right to title by adverse possession. Pointing to the rule that where the
proponent of adverse possession is a co-owner of the property, the element of
“hostility” must be established by “‘“‘acts of ownership of the most open,
notorious and unequivocal character’”’” amounting to an “‘ouster’” (Preciado,
supra, 139 Cal.App.4th at pp. 324, 325), appellant contends the trial court placed
the burden of establishing a necessary element of the claim on the wrong party.
We disagree. The SOD clearly reflected the court’s understanding of the elements
required to support a claim of adverse possession. The court made a separate
finding of hostility of an open and notorious character, which was supported not
merely by the exclusivity of respondent’s occupation of the property for many
years, but also by his interference with defendants’ multiple attempts to sell it. The
court’s statement that defendants failed to “oust” respondent prior to his
establishing adverse possession supported its finding that respondent’s possession
was continuous. (See Nielson v. Gibson, supra, 178 Cal.App.4th at p. 325
[landowner can interrupt continuous possession element by filing an action for
ejectment].) It did not reflect a misunderstanding of the burden of proof.
Appellant further contends that the court’s finding that respondent paid the
property taxes for the necessary number of years was unsupported because the
admitted trial exhibits did not establish, on their own, five consecutive years of
payments. Respondent was not required to establish this element by documentary
evidence. The court as trier of fact could accept oral testimony that respondent
paid the property taxes during his years of possession. We presume that the
unreported trial testimony would have supported the trial court’s finding. (Estate
of Fain, supra, 75 Cal.App.4th at p. 992.) Moreover, there is nothing in the
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exhibits, which included property tax billing statements from the County for the
years 2011 and 2012, to indicate that any year’s property taxes were delinquent,
and nothing in the record reflects that any other party claimed to have paid them.
“We have no power on appeal to weigh the evidence, consider the credibility of
witnesses, or resolve conflicts in the evidence or the reasonable inferences that
may be drawn from the evidence.” (Navarro v. Perron (2004) 122 Cal.App.4th
797, 803.) Accordingly, we reject appellant’s contention that the trial court’s
findings were not supported or that the record before us on appeal establishes error.
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DISPOSITION
The judgment is affirmed. As respondent did not file a brief or otherwise
make an appearance, no costs are awarded on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J.
We concur:
WILLHITE, Acting P. J.
COLLINS, J.
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