Filed 2/27/20 Curtis v. Alameda County Public Guardian CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

SHELTON J. CURTIS,

Plaintiff and Appellant,

v.

ALAMEDA COUNTY PUBLIC GUARDIAN, as Conservator, etc.,

Defendant and Respondent.

A157302

(Alameda County

Super. Ct. No. RG18897534)

Plaintiff and appellant Shelton J. Curtis appeals in propria persona from the trial court’s order sustaining without leave to amend the demurrer of respondent Alameda County Public Guardian (Public Guardian), conservator of the person and estate of defendant Gainel Hamilton, to Curtis’s first amended complaint to quiet title. Curtis contends the court erred when it found that he could not prevail in his action to quiet title because he had failed to allege facts sufficient to state a cause of action for title based on adverse possession. We shall affirm the order.

BACKGROUND

On March 20, 2018, Curtis filed a complaint to quiet title against Hamilton, in which he claimed that he held title in real property located in Oakland (the Oakland property) based on adverse possession. He alleged that his possession of the property was “actual, open, hostile, continuous, and exclusive since prior to January 1, 2013, in excess of the 5-year period” set forth in the Code of Civil Procedure. Curtis further alleged that he had paid all taxes and assessments that had been levied or assessed against the property during that five-year period.

The Public Guardian, which had been appointed conservator for Hamilton, filed an amended demurrer to the complaint on October 16, 2018, asserting that Curtis was “unable to demonstrate the required elements of a claim to title by adverse possession because of admissions made in his declaration filed on April 29, 2015, in an unlawful detainer action” Hamilton had previously filed against him (Super. Ct. No. RG14-746482). (See Prob. Code, § 2462, subd. (b) [guardian or conservator may “[d]efend actions and proceedings against the . . . ward or conservatee”].)

On January 24, 2019, the trial court took judicial notice of Curtis’s April 29, 2015 declaration and other related documents in the unlawful detainer action. In his declaration, Curtis had declared under penalty of perjury that in May 2013, he and his son entered into a written agreement with Hamilton and her daughter “whereby in exchange for making [and] paying for repairs, the CURTIS family of two, would be allowed to live as tenants at [the Oakland property] for five years.” Curtis had further declared that “[i]n September 2014, I offered to buy the property from HAMILTON in exchange for doing all repairs [and] giving $65,000.00 cash.” Curtis had also declared that in November 2014, after he “was mailed the one paged [sic] ‘Delayed Access to UD [unlawful detainer] Cases,’ ” he “immediately went to Oakland Superior Court to file [his] answer,” only to learn there ‘was no summons on the docket.’ ” While “on the alert for any process server or legal documents mailed to” the Oakland property, Curtis and his son “waited and waited, meanwhile doing repair work per written agreement.”

Also on January 24, 2019, the court found that the statements in Curtis’s declaration in the prior unlawful detainer case “negate at least two of the required elements of the quite title cause of action—i.e., that occupation must be ‘adverse and hostile to the true owner’ and for a period of ‘at least five years.’ ” The court therefore sustained the demurrer with leave to amend, to give Curtis the opportunity to allege facts sufficient to state a cause of action for quiet title by offering an explanation for conflicts between the earlier declaration and the pleadings in the present case.

On February 13, 2019, Curtis filed a first amended complaint to quiet title, in which he added an allegation that he had moved into the Oakland property in September 2012, that “this was adverse possession,” and that “the property was abandon[ed] and was being used as the neighborhood dump site. After cleaning the property, [Curtis] met [Hamilton] on or about May 2013.” He also added an allegation that, in addition to a May 2013 written agreement with Hamilton and her daughter that allowed him and his son to live at the Oakland property in exchange for repairs, “the parties also had an oral agreement that [Hamilton] would pay garbage, pay the taxes, and pay utilities. But [Hamilton] breached this agreement two weeks later. [Hamilton] had the utilities deactivated and never activated the garbage services. And this is when [Curtis] contends that he took the property adverse possession actual, open, hostile, continuous, and exclusive possession [sic].”

On February 27, 2019, the Public Guardian filed a demurrer to the first amended complaint, and on April 10, 2019, the court entered an order sustaining the demurrer without leave to amend, after determining that the added allegations were “insufficient to overcome the statute of limitations obstacle that is apparent from the allegations in the [first amended complaint] and the matters of which judicial notice is taken.”

The court first observed that Curtis had alleged in the first amended complaint that in May 2013, he and Hamilton entered into a written agreement allowing him to reside at the Oakland property in exchange for repairs, along with an oral agreement that Hamilton would pay garbage, taxes, and utilities, but that Hamilton breached the oral agreement two weeks later by deactivating the utilities and never activating garbage service. Curtis had further alleged that this was when he took the property by adverse possession. The court further observed, however, that in his April 2015 declaration in the unlawful detainer case, plaintiff declared that “ ‘Hamilton cut off the electricity back in July 2014, and would not allow garbage service for this property.’ These statements, made under penalty of perjury in a prior action, take precedence over any contrary matters alleged in the complaint herein. [Citation.]”

The court concluded that regardless of the conflict between Curtis’s allegation in the first amended complaint that Hamilton breached their agreement two weeks after May 2013, and the statement in the declaration that she did so in July 2014, “his admission that he entered into a written agreement with [Hamilton] in May 2013 to lease the property in exchange for repairs negates the required elements that his possession of the Property be ‘adverse and hostile to the true owner . . . for at least five years. . . .’ [Citation.] Whether the written agreement was in effect for two weeks or for over a year, it is an admission that the ‘relation of landlord and tenant has existed between’ [Curtis] and [Hamilton] in May 2013. . . . This means that, as a matter of law, [Curtis’s] possession of the Property commencing in May 2013 is ‘deemed the possession of’ [Hamilton] until five years from the termination of that agreement, which would be either May or June 2018 (if it terminated ‘two weeks later’) or July 2019 (if it terminated in July 2014). [Curtis] thus cannot satisfy the elements of adverse and hostile possession for at least five years before he filed suit on March 20, 2018.”

The court therefore sustained the demurrer without leave to amend, finding that because Curtis had not remedied the defects in the original complaint, “a further opportunity for amendment would be futile.”

On May 21, 2019, Curtis filed a notice of appeal.

DISCUSSION

On appeal from the trial court’s order sustaining a demurrer without leave to amend, “we examine the complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory, such facts being assumed true for this purpose. [Citations.]” (McCall v. PacifiCare of California, Inc. (2001) 25 Cal.4th 412, 415.) “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] . . .’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

In the present case, Curtis contends the trial court erred in sustaining the Public Guardian’s demurrer on the ground that he could not prevail in his action to quiet title because he had failed to allege facts sufficient to state a cause of action for title based on adverse possession.

“To establish title by adverse possession, the claimant must establish the following five requirements: 1) Possession under claim of right or color of title; 2) actual, open, and notorious occupation of the premises in such a manner as to constitute reasonable notice to the true owner; 3) Possession which is adverse and hostile to the true owner; 4) Possession which is uninterrupted and continuous for at least five years; and 5) Payment of all taxes assessed against the property during the five-year period.” (Buic v. Buic (1992) 5 Cal.App.4th 1600, 1604 (Buic), citing Gilardi v. Hallam (1981) 30 Cal.3d 317, 321 & Kraemer v. Kraemer (1959) 167 Cal.App.2d 291, 306; see Code Civ. Proc., § 326 [“When the relation of landlord and tenant has existed between any persons, the possession of the tenant is deemed the possession of the landlord until the expiration of five years from the termination of the tenancy, or, where there has been no written lease, until the expiration of five years from the time of the last payment of rent, notwithstanding that such tenant may have acquired another title, or may have claimed to hold adversely to his landlord”].)

Here, Curtis asserts that the first amended complaint includes allegations that satisfy all of the elements required to demonstrate adverse possession. In his abbreviated argument on this point, Curtis states that he “has lived in the property approximately 7 years and has paid all the property tax owed by [Hamilton]. [Curtis] has demonstrated that possession was [‘]open and notorious use or possession that is continuous and uninterrupted, hostile to the true owner and under a claim of title,’ for five years.” (Quoting Gilardi v. Hallam, supra, 30 Cal.3d 317, 321.)

We agree with the trial court that Curtis’s statements made under penalty of perjury in his declaration in the earlier unlawful detainer action, together with allegations in the first amended complaint, demonstrate that he cannot allege facts sufficient to state a cause of action for quiet title based on adverse possession.

First, the statements in the declaration were admissible to support the Public Guardian’s argument in support of the demurrer: “ ‘Both trial and appellate courts may properly take judicial notice of a party’s earlier pleadings and positions as well as established facts from both the same case and other cases. [Citations.] The complaint should be read as containing the judicially noticeable facts, “even when the pleading contains an express allegation to the contrary.” [Citation.] A plaintiff may not avoid a demurrer by pleading facts or positions in an amended complaint that contradict the facts pleaded in the original complaint or by suppressing facts which prove the pleaded facts false. [Citation.] Likewise, the plaintiff may not plead facts that contradict the facts or positions that the plaintiff pleaded in earlier actions or suppress facts that prove the pleaded facts false. [Citation.]’ [Citation.]

“ ‘ “ ‘The principle is that of truthful pleading.’ ” . . . [Citation.] When the plaintiff pleads inconsistently in separate actions, the plaintiff’s complaint is nothing more than a sham that seeks to avoid the effect of a demurrer. [Citations.] Under such circumstances, the court will disregard the falsely pleaded facts and affirm the demurrer.’ [Citations.]” (Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 344 (Larson).)

Second, statements made under penalty of perjury in Curtis’s declaration in the prior action, of which we have taken judicial notice and which Curtis has failed to explain in his first amended complaint, demonstrate that his possession of the Oakland property was neither “adverse and hostile to the true owner” nor “uninterrupted and continuous for at least five years.” (Buic, supra, 5 Cal.App.4th at p. 1604; see also Larson, supra, 230 Cal.App.4th at p. 344 [plaintiffs “may avoid the effect of the sham pleading doctrine by alleging an explanation for the conflicts between the pleadings”].) In particular, Curtis stated in the declaration that he and his son entered into a written rental agreement with Hamilton and her daughter in May 2013; that in September 2014, he offered to buy the property from her; and that in November 2014, he was mailed a document related to an unlawful detainer case, after which he waited for receipt of further documents while continuing to do repairs pursuant to the written agreement. Curtis also stated in the declaration that Hamilton had the electricity turned off and refused to allow garbage service in July 2014, which contradicts his statement in the first amended complaint that Hamilton took these actions two weeks after the parties entered into an agreement, in May 2013.

Third, Curtis’s factual allegations in the first amended complaint that he entered into written and oral agreements with Hamilton in May 2013, but that she “breached their agreement two weeks later,” and that “this is when [Curtis] took the property [by] adverse possession,” further demonstrate that he cannot satisfy the requirement of five years of uninterrupted hostile possession, given that he filed his original complaint to quiet title in March 2018, some four years and 10 months after he alleged that he took the Oakland property by adverse possession. (See Buic, supra, 5 Cal.App.4th at pp. 1604–1605.)

Thus, regardless of whether Hamilton’s purported breach was of a written agreement or an oral agreement, or whether the breach occurred in May or June 2013, or in July 2014, considering all of the relevant statements from his April 2015 declaration and the allegations in his first amended complaint, Curtis cannot show that his possession of the Oakland property was hostile to Hamilton for the requisite five-year period. As the appellate court stated in Buic, “ ‘ “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.]’ ” Here, the allegations in the first amended complaint and the prior declaration demonstrate that Curtis’s possession of the property was accompanied by recognition of Hamilton’s rights as the owner of the property and as his landlord on several occasions during the five-year period before he filed suit in March 2018. Therefore, as a matter of law, Curtis cannot establish title by adverse possession. (See Buic, supra, 5 Cal.App.4th at pp. 1604–1605; § 326; see also Larson, supra, 203 Cal.App.4th at p. 344.)

Consequently, the trial court properly sustained the Public Guardian’s demurrer to the first amended complaint without leave to amend. (McCall v. PacifiCare of California, Inc., supra, 25 Cal.4th at p. 415.)

DISPOSITION

The order sustaining the Public Guardian’s demurrer without leave to amend is affirmed. Costs on appeal are awarded to Hamilton.

 

_________________________

Kline, P.J.

We concur:

_________________________

Richman, J.

_________________________

Stewart, J.

Curtis v. Alameda County Public Guardian, as Conservator, etc. (A157302)