Ruiz-Bouvet v. Harrison CA2/6

Filed 1/14/22 Ruiz-Bouvet v. Harrison CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
VINCENT RUIZ BOUVET, 2d Civ. No. B304805
(Super. Ct. No. 56-2018-
Plaintiff and Appellant, 00515518-CU-OR-VTA)
(Ventura County)
v.
ORDER DENYING PETITION
SARA T. HARRISON, FOR REHEARING AND
MODIFYING OPINION
Defendants and Respondent. (No Change in Judgment)
THE COURT:
Appellant’s petition for rehearing is denied. It is ordered
that the opinion filed on December 16, 2021 be modified as
follows:
On page 2, line 4, delete the entire sentence beginning “He
repeated that claim . . .” and insert the following sentence
instead: Vincent testified that he repeated that claim “at the
funeral home when [the siblings] made arrangements for [their]
mother’s burial.”
On page 2, footnote 3, delete both sentences in the footnote
and insert the following instead: Vincent, who is an attorney, is
an inactive member of the California State Bar.
On page 3, third full paragraph, second to the last
sentence, delete “the next day,” so that the sentence now reads:
He testified he repeated this claim to all of them at the funeral
home.
On page 3, third full paragraph, last sentence, delete
“Vincent acknowledged there was” and insert instead “Vincent
produced,” so that the sentence now reads: Vincent produced
nothing in writing evidencing Victoria’s intent to leave him the
property, i.e., there was no will, trust or conveyance of any kind.
On page 8, second full paragraph, delete “a practicing
attorney at the time” in the first sentence and insert instead “an
attorney,” so that the sentence now reads: Although the trial
court noted that Vincent was an attorney and had failed to give
his siblings written notice of the ouster, it did not state that
written notice is an absolute requirement.
On page 8, second full paragraph, delete the second
sentence beginning “Vincent testified” in its entirety and insert
the following sentence instead, including the quotation marks:
According to the reporter’s transcript, Vincent testified: “[B]eing
an attorney and handling property law, I was aware I had to take
exclusive control and exclude my siblings from any – any control
of the house.”
On page 9, second sentence, delete “the next day,” so that
the sentence now reads: He claims the testimony, which was not
presented in the trial court, establishes that the siblings were not
upset the day their mother died or at the funeral home.
No change in judgment.
____________________________________________________________
GILBERT, P.J. YEGAN, J. PERREN, J.
2
Filed 1/14/22 Ruiz-Bouvet v. Harrison CA2/6
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 SIX
VINCENT RUIZ BOUVET, 2d Civ. No. B304805
(Super. Ct. No. 56-2018-
Plaintiff and Appellant, 00515518-CU-OR-VTA)
(Ventura County)
v.
ORDER DENYING PETITION
SARA T. HARRISON, FOR REHEARING AND
MODIFYING OPINION
Defendants and Respondent. (No Change in Judgment)
THE COURT:
Appellant’s petition for rehearing is denied. It is ordered
that the opinion filed on December 16, 2021 be modified as
follows:
On page 2, line 4, delete the entire sentence beginning “He
repeated that claim . . .” and insert the following sentence
instead: Vincent testified that he repeated that claim “at the
funeral home when [the siblings] made arrangements for [their]
mother’s burial.”
On page 2, footnote 3, delete both sentences in the footnote
and insert the following instead: Vincent, who is an attorney, is
an inactive member of the California State Bar.
On page 3, third full paragraph, second to the last
sentence, delete “the next day,” so that the sentence now reads:
He testified he repeated this claim to all of them at the funeral
home.
On page 3, third full paragraph, last sentence, delete
“Vincent acknowledged there was” and insert instead “Vincent
produced,” so that the sentence now reads: Vincent produced
nothing in writing evidencing Victoria’s intent to leave him the
property, i.e., there was no will, trust or conveyance of any kind.
On page 8, second full paragraph, delete “a practicing
attorney at the time” in the first sentence and insert instead “an
attorney,” so that the sentence now reads: Although the trial
court noted that Vincent was an attorney and had failed to give
his siblings written notice of the ouster, it did not state that
written notice is an absolute requirement.
On page 8, second full paragraph, delete the second
sentence beginning “Vincent testified” in its entirety and insert
the following sentence instead, including the quotation marks:
According to the reporter’s transcript, Vincent testified: “[B]eing
an attorney and handling property law, I was aware I had to take
exclusive control and exclude my siblings from any – any control
of the house.”
On page 9, second sentence, delete “the next day,” so that
the sentence now reads: He claims the testimony, which was not
presented in the trial court, establishes that the siblings were not
upset the day their mother died or at the funeral home.
No change in judgment.
2
____________________________________________________________
GILBERT, P.J. YEGAN, J. PERREN, J.
3
Filed 12/16/21 Ruiz-Bouvet v. Harrison CA2/6 (unmodified opinion)
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 SIX
VINCENT RUIZ-BOUVET, 2d Civ. No. B304805
(Super. Ct. No. 56-2018-
Plaintiff and Appellant, 00515518-CU-OR-VTA)
(Ventura County)
v.
SARA T. HARRISON,
individually and as
Administrator of the Estate of
Victoria Ruiz,
Defendant and Respondent.
Appellant Vincent Ruiz-Bouvet (Vincent) and his three
siblings, respondent Sara T. Harrison (Sara), Annette Ruiz
(Annette) and Robert Ruiz (Robert) (collectively “siblings”)
inherited the single-family residence owned by their mother,
Victoria Ruiz (Victoria), when she died intestate in 2012.1 On the
day Victoria died, Vincent privately told each of his siblings that
Victoria had given him both the property and her savings so that
he would have a place to live. He repeated that claim to all his
siblings at the funeral home the next day.
Vincent and Annette continued to live on the property as
they had prior to Victoria’s death. Vincent made no attempt to
secure sole ownership of the property until 2018, when Sara filed
a probate proceeding on behalf of Victoria’s estate. Vincent then
brought this action to quiet title based on adverse possession.
The case was tried by the court in November 2019. At the
close of Vincent’s case-in-chief, Sara moved for judgment under
Code of Civil Procedure section 631.8.2 The trial court granted
the motion, finding that Vincent had “failed to meet his burden of
proving by clear and convincing evidence that he gave notice to
the other cotenants [i.e., his siblings] of his claim of exclusive
ownership” of the property. It entered judgment for Sara.
Vincent, appearing in propria persona,3 contends the trial
court (1) applied the wrong burden of proof and improperly added
an element to his adverse possession claim, (2) improperly
admitted his deposition testimony, (3) made erroneous findings of
fact, (4) made inferences that are unsupported by the record and
(5) improperly found that his testimony did not establish all the
1 For the sake of clarity, we refer to the family members by
their first names. No disrespect is intended.
All statutory references are to the Code of Civil
2
Procedure.
3Vincent was a practicing attorney at the time of trial. He
is now an inactive member of the State Bar.
5
elements of his adverse possession claim. None of these claims
has merit. We affirm.
FACTUAL BACKGROUND
Victoria and Vincent Canalez Ruiz acquired the property
located at 6825 Dove Street in Ventura in 1972. They are the
siblings’ parents.
Vincent Canalez Ruiz quitclaimed the property to Victoria
in 1978. Victoria remained the sole legal owner of the property
until her death in March 2012. There was no mortgage on the
property and “no known liens or encumbrances.”
Vincent and Annette lived with Victoria until her death.
Annette paid the monthly utility and cable TV bills and Vincent
paid $150 per month in rent. On the day Victoria died, the
distraught siblings met at the property. Vincent testified his
siblings were “running around like chickens with their heads cut
off and trying to get their heads around what had just happened”
and “people [were] just kind of in a daze.” Vincent claims he took
each sibling aside and explained that Victoria wanted him to
have the property and that he would own it “‘to the exclusion of
each of his siblings.’” He testified he repeated this claim to all of
them at the funeral home the next day. Vincent acknowledged
there was nothing in writing evidencing Victoria’s intent to leave
him the property, i.e., there was no will, trust or conveyance of
any kind.
Vincent and Annette continued to live on the property, and
Annette continued to pay the monthly utility and cable TV bills.
No sibling was excluded from the property.
Vincent paid the property insurance and property taxes.
He also paid for certain repairs. None of the other siblings
6
contributed to those expenses. Neither Sara nor Robert objected
to Vincent and Annette’s continued occupancy.
Because Victoria died intestate, the siblings became equal
tenants in common by operation of law. Thus, as of her date of
death, each sibling owned an equal one-quarter share of the
property as tenants in common. (See Mannheim v. Superior
Court (1970) 3 Cal.3d 678, 691 [“It is . . . settled that when a
decedent dies intestate, his heirs, both known and unknown,
acquire an interest in his estate by operation of law at the
moment of death”].) “According to the Tax Collector and Assessor
records received [by the trial court], Victoria remains the legal
owner of record title.”
DISCUSSION
A. Standard of Review
Vincent misstates and misapplies the applicable standard
of review. “‘The standard of review after a trial court issues
judgment pursuant to . . . section 631.8 is the same as if the court
had rendered judgment after a completed trial -- that is, in
reviewing the questions of fact decided by the trial court, the
substantial evidence rule applies.’” (Medrazo v. Honda of North
Hollywood (2012) 205 Cal.App.4th 1, 10.) “Under that standard,
our review begins and ends with a determination as to whether
there is any substantial evidence, contradicted or uncontradicted,
to support the findings below. [Citations.] . . . [W]e view the
record in the light most favorable to respondents, giving them the
benefit of every reasonable inference and resolving all conflicts in
their favor. [Citation.] ‘[I]t is not our role to reweigh the
evidence, redetermine the credibility of the witnesses, or resolve
conflicts in the testimony, and we will not disturb the judgment if
there is evidence to support it.’” (Williamson v. Brooks (2017) 7
7
Cal.App.5th 1294, 1299-1300; accord People ex rel. Dept. of Motor
Vehicles v. Cars 4 Causes (2006) 139 Cal.App.4th 1006. 1012
[“The purpose of [section] 631.8 is ‘to enable the court, when it
finds at the completion of plaintiff’s case that the evidence does
not justify requiring the defense to produce evidence, to weigh
evidence and make findings of fact’”].)
B. Substantial Evidence Supports the Entry of Judgment
on Vincent’s Adverse Possession Claim
As we explained in Preciado v. Wilde (2006) 139
Cal.App.4th 321 (Preciado), “‘[i]n an action to quiet title based on
adverse possession the burden is upon the claimant to prove
every necessary element: (1) Possession must be by actual
occupation under such circumstances as to constitute reasonable
notice to the owner. (2) It must be hostile to the owner’s title. (3)
The holder must claim the property as his own, under either color
of title or claim of right. (4) Possession must be continuous and
uninterrupted for five years. (5) The holder must pay all the
taxes levied and assessed upon the property during the period.
[Citations.]’ [Citation.] [¶] But ‘“[w]here, as here, a claim of
ownership by adverse possession is asserted against a cotenant
additional principles become operative. . . .” [Citation.]’
[Citation.] ‘“[E]ach tenant in common has a right to occupy the
whole of the property. The possession of one is deemed the
possession of all; each may assume that another in exclusive
possession is possessing for all and not adversely to the others.
. . .”’ [Citation.]” (Id. at p. 325.)
“‘“‘Before title may be acquired by adverse possession as
between cotenants, the occupying tenant must bring home or
impart notice to the tenant out of possession, by acts of
ownership of the most open, notorious and unequivocal character,
8
that he intends to oust the latter of his interest in the common
property. [Citations.] Such evidence must be stronger than that
which would be required to establish a title by adverse possession
in a stranger. [Citation.]’ . . . In short, one tenant in common
cannot by mere exclusive possession acquire the title of his
cotenant. [Citation.]”’ [Citations.]” (Preciado, supra, 139
Cal.App.4th at p. 325, italics omitted.)
“‘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.’ [Citation.]” (Estate of Hughes (1992) 5
Cal.App.4th 1607, 1612 [absent any evidence of actual exclusion
from the property in dispute, the court could not find an ouster].)
“[O]uster must be proved by acts of an adverse character, such as
claiming the whole for himself, denying the title of his
companion, or refusing to permit him to enter.” (Zaslow v.
Kroenert (1946) 29 Cal.2d 541, 548 [denial of title, changing locks,
posting “no trespassing” signs on the property and denying
admittance thereto constituted ouster].)
Contrary to Vincent’s assertions, the trial court correctly
stated the elements of his adverse possession claim, correctly
identified the burden of proof as clear and convincing evidence
and did not add an extra element to the claim. As the court
observed, “the presumption of title in each of the four [sibling]
cotenants can be overcome only by Vincent’s clear and convincing
evidence of ouster.”
1. Burden of Proof
It is true that the cases tend to describe the applicable
burden of proof in an adverse possession claim as “clear and
satisfactory” or “clear and positive,” rather than clear and
9
convincing. (See, e.g., Yuba River Sand Co. v. City of Marysville
(1947) 78 Cal.App.2d 421, 429-430 [“[B]urden is on one who
claims by adverse possession to prove all the essential elements
by clear and satisfactory evidence”]; Clark v. Stotts (1954) 127
Cal.App.2d 589, 592 [“[S]uch possession cannot be made out by
inference, but only by clear and positive proof”]; Weller v.
Chavarria (1965) 233 Cal.App.2d 234, 242 [“[B]urden is on the
claimant to prove every essential element by clear and
satisfactory evidence”].)
Vincent cites Vieira Enterprises, Inc. v. McCoy (2017) 8
Cal.App.5th 1057, for the proposition that the burden of proof to
establish ouster is preponderance of the evidence. That case,
however, involved a claim for termination of easement by adverse
possession. It did not involve an adverse possession claim as
between cotenants, which requires evidence “‘“‘stronger than that
which would be required to establish a title by adverse possession
in a stranger.’”’” (Preciado, supra, 139 Cal.App.4th at p. 325.)
In any event, Viera appears to be the only case holding that
the burden of proof is preponderance of the evidence. (Husain v.
California Pacific Bank (2021) 61 Cal.App.5th 717, 726, fn. 4.)
Citing earlier cases, including our decision in Grant v. Ratliff
(2008) 164 Cal.App.4th 1304, Husain reiterated that the burden
of proof on a prescriptive easement claim is clear and convincing
evidence. (Husain, at p. 726.)
2. Evidence of Ouster
The trial court found that Vincent had clearly and
convincingly proven two of the elements of ouster, i.e., occupation
of the property for at least five years and payment of the property
taxes for at least five years. It found, however, that Vincent had
failed to prove “[o]ccupation under circumstances giving the
10
cotenants notice of [his] assertion of exclusive ownership and
intent to ouster the cotenants.”
Substantial evidence supports trial court’s finding that
“[o]ther than an oral statement to his siblings shortly after his
mother’s death, Vincent did not signal in any manner the open
hostility and exclusivity of [his] occupation of the property to the
extent of an ouster of the other cotenants.” The court also found
“that Vincent’s testimony that he told his siblings he was
claiming sole ownership to the exclusion of their rights as co-
tenants lacks credibility,” and that “[t]he circumstance of the
gathering and [Vincent’s] discussions with his siblings do not
lend themselves well to notice of ouster in clear and unequivocal
terms.”
Although the trial court noted that Vincent was a
practicing attorney at the time and had failed to give his siblings
written notice of the ouster, it did not state that written notice is
an absolute requirement. Vincent testified that he was “an
attorney and handling property law” and that he was “aware that
[he] had to take exclusive control and exclude [his] siblings from
any . . . control of the house.” Given that this testimony
“evince[d] an understanding of the law relating to the ouster of
co-tenants generally,” the court found it implausible that Vincent
did not take other actions consistent with ouster, such as placing
a lien on the property, putting title in his name, physically
excluding his siblings from the property or making major
improvements.
Vincent’s burden was to show “‘“‘acts of ownership of the
most open, notorious and unequivocal character.’”’” (Precisado,
supra, 139 Cal.App.4th at p. 325.) Even if we accept that Vincent
told his siblings when Victoria died that she wanted him to have
11
the property, his actions do not demonstrate an open, notorious
and unequivocal intent to oust his cotenants. The siblings were
in a state of shock and mourning when Vincent approached them
at the house and funeral home. Notwithstanding Vincent’s claim
of exclusive ownership, Annette continues to live on the property,
paying the same utility bills she paid prior to Victoria’s death.
The siblings continue to come and go from the property. There is
no clear and convincing evidence of the kind necessary to
establish ouster. As the trial court aptly observed, Vincent and
Annette’s “occupation of the property was not materially different
after Victoria’s death than it was before her passing.”
3. Vincent’s Deposition Testimony
Vincent challenges the trial court’s admission of his
deposition testimony in which he states his siblings were
“running around like chickens with their heads cut off and trying
to get their heads around what had just happened” and “people
[were] just kind of in a daze.” The testimony was offered to show
the siblings’ state of mind at the time of Victoria’s death. As Sara
points out, Vincent waived any challenge to the admission of this
testimony by failing to object at trial. (See In re Riva M. (1991)
235 Cal.App.3d 403, 411-412 [“As a general rule, a party is
precluded from urging on appeal any point not raised in the trial
court”].)
4. Vincent’s Motion To Augment the Record on Appeal
Vincent seeks to augment the record on appeal with
evidence in the form of deposition testimony. He claims the
testimony, which was not presented in the trial court, establishes
that the siblings were not upset the day their mother died or the
next day at the funeral home. He contends that if they were not
12
upset, the oral notice he gave them was sufficient to establish
ouster.
The deposition testimony was available at the time of trial.
In the absence of extraordinary circumstances, we do not consider
evidence that was not before the trial court. (See In re Zeth S.
(2003) 31 Cal.4th 396, 405.) We therefore deny the motion to
augment.
DISPOSITION
The judgment is affirmed. Respondent shall recover her
costs on appeal.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
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Matthew P. Guasco, Judge
Superior Court County of Ventura
______________________________
Vincent A. Ruiz, Jr., in pro. per., for Plaintiff and
Appellant.
Arnold Larochelle Matthews Vanconas & Zirbel, Susan L.
McCarthy, for Defendant and Respondent.
14