Barajas v. Triola CA2/8 ( 2020 )

Filed 11/2/20 Barajas v. Triola CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
ANNETTE C. BARAJAS, B298275
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC622774)
v.
ANGEL MARIE TRIOLA et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Robert S. Draper, Judge. Affirmed.
Law Offices of Robert Bruce Parsons and Robert B. Parsons
for Defendants and Appellants.
Law Offices of Rosenthal & Associates and Lisa F.
Rosenthal for Plaintiff and Respondent.
____________________________
INTRODUCTION
After their relationship ended, Annette Barajas filed a
partition action against Angel Marie Triola and her corporation,
Third Career Investments, LLC, as to certain real and personal
property. The parties settled all issues except for a house they
used to live in. Following a bench trial, the trial court entered an
interlocutory judgment that determined the house is owned
50 percent by Barajas and 50 percent by Triola.
Triola appeals.1 She argues the trial court could not
determine that Barajas has an ownership interest in the house
because Barajas is not on record title and did not file a quiet title
action. Triola also asserts that any claim Barajas may have had
to the house is barred by the statute of limitations, statute of
frauds, and laches.
We affirm. In a partition action, a trial court must
determine the interests of the parties in the property before it
grants relief, and that determination is not dependent on record
title or the filing of a quiet title action. There is no statute of
1 Although a notice of appeal was filed by Triola and her
corporation, the corporation is wholly-owned and apparently was
named as a defendant because it is on title. For ease of reference
only, we refer to appellants as Triola.
Triola also asserts the trial court refused to issue an
interlocutory judgment pursuant to Code of Civil Procedure
section 872.720. (All further statutory references are to the Code
of Civil Procedure unless indicated otherwise.) However, the text
of the judgment meets the statutory requirements for an
interlocutory judgment: It determined the interests of the parties
in the property and ordered partition. (Id., subd. (a).) The
judgment is appealable. (§ 904.1, subds. (a)(1), (2), & (9).)
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limitations in a partition action, and substantial evidence
supports the court’s findings of fact as to the statute of frauds
and laches.
FACTS2
From 1991 to 1994, Barajas and Triola lived in a house at
1133 W. 225th Street in Torrance. The house was owned by
Mary Bramwell, Barajas’s aunt. But in March 1992, Bramwell
was in financial difficulty and contemplating bankruptcy. In an
effort to protect the house from creditors, Barajas and Triola, who
were both attorneys and in a personal relationship, helped
Bramwell transfer the house to Triola for no consideration. The
grant deed was recorded in January 1993.
The ploy was unsuccessful. The house, and another
residential property the parties had helped Bramwell transfer
pre-petition, ended up in the bankruptcy estate anyway. In May
1996, Barajas and Triola signed a stipulation wherein they
agreed to pay the bankruptcy trustee $75,000 and execute a
$40,000 promissory note in settlement of all claims for the pre-
petition transfers. They delivered quit claim deeds for both
2 The designation of the record on appeal requested
preparation of a clerk’s and reporter’s transcript. No reporter
was present for trial. Thus, the record consists of a clerk’s
transcript and the trial exhibits. An election to proceed on a
clerk’s transcript is treated as a judgment roll appeal. (Allen v.
Toten (1985) 172 Cal. App. 3d 1079, 1082.) On a judgment roll
appeal, we presume substantial evidence supports the trial
court’s findings of fact. (Taylor v. Nu Digital Marketing, Inc.
(2016) 245 Cal. App. 4th 283, 288; Ehrler v. Ehrler (1981)
126 Cal. App. 3d 147, 154.) We therefore draw the facts from the
trial court’s final statement of decision.
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properties as security for the note. When the note was paid off
that November, the trustee deeded the house and the other
property to Barajas and Triola as tenants in common Barajas
then deeded her interest in the house to Triola, and Triola deeded
her interest in the other property to Barajas.
Although the parties ended their relationship in December
1997, they remained good friends. In 1998, a Dissolution
Agreement was drafted. This document, although neither signed
nor dated, provided that title to the house and the other property
would be transferred into both of their names, to be held jointly.
A deed transferring the other property from Barajas to both of
them was recorded shortly thereafter. A similar deed,
transferring title to the house from Triola to both of them, was
executed but lost. In 2010, the parties had a falling out after a
serious altercation.
The parties acknowledged their joint interest in the house
several times up through 2010.3 In 2003, Triola prepared and
filed a discrimination lawsuit against a neighboring owner who
would not sell to them. In the complaint, it was alleged they both
3 Triola complains that the trial court did not consider
evidence of matters that occurred after November 2010 because
of a bias against her. The record belies that assertion. The court
explained it did not credit any testimony after the 2010
altercation because it “observed during the testimony of both
Barajas and Triola that anything bad they could say about each
other was said, even if it was totally irrelevant to the issues in
the case or even the question asked. For these reasons, the Court
has concluded that actions, statements or conduct of either party
after November 2010 are of negligible significance in attempting
to determine what the parties intended at the time the transfers
relevant to this action were made.”
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owned the house. In several individual tax returns, each
represented to the government that they owned a 50 percent
interest in the house. In May 2012, Triola transferred title to the
house to her wholly-owned corporation.
The court found the house is owned 50 percent by Barajas
and 50 percent by Triola. It ordered partition by sale. An
interlocutory judgment was signed and filed.
DISCUSSION
Partition is a statutorily-prescribed equitable proceeding
that is favored by the law. (Cummings v. Dessel (2017)
13 Cal. App. 5th 589, 596–597 (Cummings).) It permits a co-owner
of real or personal property to file an action to terminate and
sever common interests in property to avoid the inconvenience
and dissension that can come from sharing joint possession. (Id.
at p. 596.) If the court determines the plaintiff is entitled to
partition, the court shall issue an interlocutory judgment
determining the parties’ interest in the property. (Summers v.
Superior Court (2018) 24 Cal. App. 5th 138, 143.)
“The standard of review for an interlocutory judgment of
partition is abuse of discretion.” (Cummings, supra,
13 Cal.App.5th at p. 597.) Unless a clear abuse of discretion and
a miscarriage of justice is shown, a reviewing court will not
substitute its judgment for that of the trial court.
I. The Action is Not Time-Barred
Triola first argues the action is barred by every possible
statute of limitations because everything occurred more than
20 years ago. The trial court rejected the statute of limitations
defense as a matter of law, citing Sangiolo v. Sangiolo (1978)
87 Cal. App. 3d 511, 513.
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The California Supreme Court has long held that a “statute
of limitations never bars relief between tenants in common in an
action of partition.” (Adams v. Hopkins (1904) 144 Cal. 19, 27.)
The rule is premised on the idea that a co-tenant already has an
interest in the property and thus an absolute right to bring a
partition action at any time, absent waiver or estoppel.
(American Medical International, Inc. v. Feller (1976)
59 Cal. App. 3d 1008, 1013.) Indeed, any other rule would
interfere with the purpose of the partition statutes, to permit
severance of common interests in property when necessary.
(Ibid.) The only exception is “where a party has by operation of
the statute of limitations lost all right to and in the land and such
right has by prescription become vested in another.” (Adams v.
Hopkins, at p. 27.; see Akley v. Bassett (1922) 189 Cal. 625, 645.)
Nothing in the trial court’s factual findings in its final statement
of decision would implicate the exception, and thus no statute of
limitations bars the partition action.
But Triola argues that even if no statute of limitations
applies to a partition action, a limitations defense would apply to
the underlying theory of relief Barajas relies on to claim an
interest in the house. Not surprisingly, Triola does not cite any
case involving a partition action for this proposition, relying
instead on Muktarian v. Barmby (1965) 63 Cal. 2d 558, a quiet
title action. In that case, the trial court found an action to set
aside a grant deed was barred by the three-year statute of
limitations for fraud and mistake. (Id. at p. 559.) The Supreme
Court reversed, holding there is no statute of limitations bar in a
quiet title action where the plaintiff is in possession of the
property. (Id. at pp. 560–561.) Quiet title cases that have relied
on it, such as Ankoanda v. Walker-Smith (1996) 44 Cal. App. 4th
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610, have also turned on the question of possession. Muktarian
is simply inapplicable here; and, it cannot be analogized to
undercut the long-standing rule that no statute of limitations
applies in a partition action.
Moreover, the trial court found by clear and convincing
evidence that the parties had pursuant to the Dissolution
Agreement executed deeds to transfer title to the house and the
other property to be held jointly. The one deed—putting Triola
on record title to the other property—was recorded; the other—to
put Barajas on title to the house—was lost. The court found
there was no reason why the two deeds would be treated
differently. Triola makes much of the fact that Barajas is not on
record title, but the law provides that the mere failure to record a
deed does not vitiate the transfer. (Blackburn v. Drake (1963)
211 Cal. App. 2d 806, 814.) The transfer was complete on delivery
of the deed to the house. Accordingly, no statute of limitations
had even began to run, much less had expired, when the partition
action was filed.
Finally, Triola suggests that the complaint is barred by
laches. Whether laches applies in a particular case is a question
of fact. (Miller v. Eisenhower Medical Center (1980) 27 Cal. 3d
614, 624.) The trial court found in its statement of decision that
there was “no evidence” to support the elements of laches. The
argument is waived. The record provided is inadequate to review
this issue.
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II. The Trial Court Did Not Create New Title
It is well settled that an action for partition action does not,
and cannot, create new title. (Rancho Santa Margarita v. Vail
(1938) 11 Cal. 2d 501, 539.) Rather, it may only divide present
and existing interests. (Ibid.) Triola argues the court violated
this rule and created new title when it determined Barajas has a
50 percent interest in the house without requiring her to file a
quiet title action. She is mistaken.
She first asserts that an examination of the pleadings
shows the issue of title was never joined, and that title could only
have been adjudicated in a quiet title action which Barajas never
filed. The complaint in a partition action must set forth “[a]ll
interests the plaintiff has or claims in the property.” (§ 872.230,
subd. (b).) The answer must set forth any interest the defendant
has or claims as well as “[a]ny facts tending to controvert such
material allegations of the complaint as the defendant does not
wish to be taken as true.” (§ 872.410, subd. (b).) The court is
then charged with “ascertaining” the state of title “[t]o the extent
necessary to grant the relief sought or other appropriate relief.”
(§ 872.620.) And before it may grant relief, the court shall enter
a judgment that “determines the interests of the parties in the
property.” (§ 872.720, subd. (a).) Nowhere does Triola
demonstrate how the pleadings disregarded these requirements.
Moreover, partition is an equitable proceeding where a court
exercises broad powers and almost unlimited discretion to do
equity. (Cummings, supra, 13 Cal.App.5th at pp. 596–597;
Richmond v. Dofflemyer (1980) 105 Cal. App. 3d 745, 766.) The
issues were properly joined and Triola does not show any
prejudice.
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Next, she argues that because Barajas is not on record title
the court could not determine whether she had an ownership
interest different from title. In an action for partition all parties’
interests are put in issue regardless of record title. (§ 872.610
[“The interests of the parties, plaintiff as well as defendant, may
be put in issue, tried, and determined in the action”].) Case law
is consistent. In Milian v. De Leon (1986) 181 Cal. App. 3d 1185
the court stated at pages 1195–1196 that all interests are put in
issue “regardless of the record title.” In Thomassett v.
Thomassett (1953) 122 Cal. App. 2d 116 the court explained at
page 133 that, “Property may be found to be other than that
indicated by the deed when there is an oral or written agreement
as to the ownership of the property, or where such understanding
may be inferred from the conduct and declarations of the
spouses.” (Italics added, disapproved on another ground by See v.
See (1966) 62 Cal. 2d 788, 785 –786; see also Kershman v.
Kershman (1961) 192 Cal. App. 2d 23, 26; Cosler v. Norwood
(1950) 97 Cal. App. 2d 665, 666.)
Finally, Triola asserts in her opening brief that the
rebuttable presumption of Evidence Code section 662 was not
overcome. In her reply, she now argues that section 662 “has no
bearing on this action.” Given that concession, we treat the
argument as having been withdrawn. In any event, the record
was inadequate to consider the point. Section 662 provides that,
“The owner of the legal title to property is presumed to be the
owner of the full beneficial title. This presumption may be
rebutted only by clear and convincing proof.” Although the trial
court acknowledged Barajas was not on record title, it found, by
clear and convincing evidence, that the presumption had been
rebutted.
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III. There is No Statute of Frauds Bar
Triola argues that the action is barred by the Statute of
Frauds. She points to the “unsigned, undated piece of paper with
numerous interlineations” that is otherwise known as the
Dissolution Agreement. She argues that this is not enforceable
as a matter of law.
The trial court rejected this defense in its tentative
statement of decision for the simple reason that the statute of
frauds must be pled as an affirmative defense and Triola had not
done so. This statement went unchallenged in subsequent filings
and the court’s finding that the defense had been waived was
included in the final statement of decision. The issue is deemed
waived. Even if it had not been waived, the limited record on
appeal is inadequate for meaningful review. Both Barajas and
Triola testified as to the efficacy of the document and the court
concluded it was valid and had been partially performed.
Without a reporter’s transcript, there is nothing to review.
Moreover, a partition action is, as noted above, an equitable
proceeding to which equitable principles apply. (Cummings,
supra, 13 Cal.App.5th at pp. 596–597.) Equitable estoppel “may
preclude the use of a statute of frauds defense” when to apply it
would cause a fraud to be perpetrated. (Byrne v. Laura (1997)
52 Cal. App. 4th 1054, 1068; see Monarco v. Lo Greco (1950)
35 Cal. 2d 621, 623–624; Chavez v. Indymac Mortgage Services
(2013) 219 Cal. App. 4th 1052, 1058.) It is clear from a fair
reading of the final statement of decision that the trial court
concluded that the application of equitable estoppel was
appropriate here.
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DISPOSITION
The judgment is affirmed. Respondent shall recover her
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SALTER, J.
We concur:
BIGELOW, P. J.
GRIMES, J.

Judge of the Orange Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.
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