Filed 5/18/20 Van Diepen v. Bollinger 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

BETTY VAN DIEPEN,

Plaintiff, Cross-defendant and Respondent,

v.

TINA SASAKI BOLLINGER,

Defendant, Cross-complainant and Appellant.

2d Civil No. B294191

(Cons. w/ Nos. B294415

& B296644)

(Super. Ct. No. 56-2016-00483747-CU-OR-VTA)

(Ventura County)

Tina Sasaki Bollinger and her mother, Betty Van Diepen, co-own a house in Camarillo. Tina appeals from the trial court’s interlocutory judgment that permits Betty to partition the house for public sale. She contends the court erred when it: (1) rejected her claim that she was entitled to inherit the house based on the doctrine of promissory estoppel, (2) rejected her equitable defenses to partition, (3) denied her request that Betty contribute to the remaining balance on the house’s mortgage, and (4) ordered her to reimburse Betty for the difference between their down payments on the house. We affirm.

FACTUAL AND PROCEDURAL HISTORY

In 1993, Betty lived in a home she owned in Oxnard. She had no mortgage payment and paid no homeowners’ association (HOA) fees. Property taxes on the home were very low.

Tina lived in a rented condominium with her two teenage daughters. She thought Betty’s neighborhood was unsafe, so she asked her mother to sell her house and put the proceeds toward the purchase of a new property: a house for Tina and her daughters, with a separate in-law or “granny flat” for Betty. If Betty made a $150,000 down payment on the new property, Tina would pay the mortgage and all required fees and insurance.

Betty sold her home in November, before she and Tina found a property to purchase. Tina’s then-boyfriend Scott offered to move in with Tina and let Betty live in his Oxnard condominium until Betty and Tina found a property suitable for their needs. Betty would be Scott’s “guest” at the condominium—not his tenant—as she would pay no rent and he would continue to pay the mortgage and HOA fees. Betty accepted Scott’s offer.

In January 1994, Tina found a four-bedroom house in Camarillo she wanted to purchase. It cost $255,000. It did not have an in-law or granny flat as she and Betty had discussed, but they nevertheless decided to purchase it. Betty paid $150,000, while Tina paid $20,000 and took out an $85,000 mortgage. The two took title as joint tenants with the right of survivorship. Betty assumed that Tina would eventually inherit her portion of the house.

Tina, her two daughters, and Scott moved into the Camarillo house. Tina did not ask Betty to move in with them, nor did Betty ask to do so. She continued to live in Scott’s condominium.

Tina and Scott married in 2006. At some point in the next two years, Betty offered to quitclaim her interest in the Camarillo house to Tina. Tina declined Betty’s offer. In 2014, Tina and Scott asked Betty if she was still willing to quitclaim her interest in the house. By that time Betty no longer trusted Scott, so she refused their request.

In April 2016, Scott demanded that Betty start paying $2,200 per month to rent the Oxnard condominium. He also demanded a security deposit and $30,000 to remedy 22 years of wear and tear to the condominium. Betty could not afford the demanded payments.

Betty met with Tina and her other daughter, Stacey Harding, a few days after receiving Scott’s demand. She told Tina that she could not afford to rent the condominium.

Later that day, Betty received a letter in the mail from Scott:

As you know I’m the owner of [the Oxnard condominium]. . . . It’s standard industry practice to require initial payment of rent composed of the first and last month’s rent plus a security deposit equal to one month’s rent. That combined total is equal to $6,600 and payment is now due. Payment of this amount is required for your current occupancy. . . . Again, regardless of whether you choose to remain at [the condominium] or move elsewhere there is now a current balance due in the amount of $6,600. Please submit your payment now.

Betty was unable to meet Scott’s demands, and moved into a neighboring condominium Stacey had bought. She subsequently recorded a quitclaim deed transferring her ownership in the Camarillo house from herself as a joint tenant to herself as a tenant in common. She also wrote Tina out of her will.

Scott sent Betty another letter in May, apparently unaware that she had already vacated the condominium:

ONE OPTION THAT IS NOT AVAILABLE TO YOU IS TO CONTINUE TO OCCUPY MY PROPERTY FOR FREE. In my previous correspondence to you, dated April 14, I offered you a 15% discount on rent. But you’ve chosen not to respond. I really don’t want to waste time dickering over what different people think is fair market rent for [the Oxnard condominium]. Since another unit [in the building], identical to mine, has rented for over a year at $2,100 that will be it. Your first, last, and security deposit equal to $6,300 is late. Rent for May is also now due bringing the total to $8,400.

Betty did not respond to the letter, but instead sued to partition the Camarillo house. Tina and Scott argued the trial court should deduct $217,000 from Betty’s share of the proceeds (representing their estimate of the difference between what Betty would have paid to rent Scott’s condominium for 22 years ($352,000) and what Scott would have paid to rent 20 percent of the Camarillo house ($135,000)) if it granted her request. Scott admitted that he did not have a written rental agreement with Betty and that he did not discuss rent payments with her before April 2016. He demanded rent from her only because she refused his and Tina’s 2014 request to quitclaim her portion of the house.

Tina filed a cross-complaint, alleging causes of action for conversion, breach of oral agreement, fraud, and quiet title. Her answer to Betty’s complaint included a promissory estoppel “defense.” Tina also asserted Betty waived her right to seek partition, and that Betty’s failure to “do equity” barred her claim for partition.

The trial court rejected Tina’s promissory estoppel claim, finding no promise that Betty would transfer her interest in the Camarillo house to Tina and no reliance by Tina on such a promise. The court also rejected Tina’s equitable defenses, and granted Betty’s request to partition the house. It charged the $29,000 balance remaining on the mortgage and one-half of the $120,000 in HOA fees, insurance, and property taxes to Tina. It charged the remaining one-half of the $120,000 in HOA fees, insurance, and property taxes, plus an additional $20,000 for one-half of the property value increase due to various capital improvements, to Betty. Upon sale of the house, Betty would be entitled to an additional $22,500, representing one-half of the difference between her contribution toward the purchase of the house ($150,000) and Tina’s contribution ($105,000).

DISCUSSION

Promissory estoppel

Tina first contends the trial court erred when it rejected her promissory estoppel claim. We disagree.

“Promissory estoppel is ‘a doctrine [that] employs equitable principles to satisfy the requirement that consideration must be given in exchange for the promise sought to be enforced.’ [Citation.]” (Kajima/Ray Wilson v. Los Angeles County Metropolitan Transp. Authority (2000) 23 Cal.4th 305, 310.) Pursuant to this doctrine, “‘[a] promise [that] the promisor should reasonably expect to induce action or forbearance on the part of the promisee . . . and [that] does induce such action or forbearance is binding’” on the promisor. (Ibid.) To succeed on a promissory estoppel claim, the promisee must show: (1) a promise with “clear and unambiguous” terms, (2) “reasonable and foreseeable” reliance on that promise, and (3) injury caused by that reliance. (Laks v. Coast Fed. Sav. & Loan Assn. (1976) 60 Cal.App.3d 885, 890.)

We determine whether the trial court’s findings are supported by substantial evidence, that is, evidence which is “‘reasonable, credible, and of solid value.’” (In re I.C. (2018) 4 Cal.5th 869, 892.) We view the evidence in the light most favorable to those findings (In re R.V. (2015) 61 Cal.4th 181, 200), and “‘presume in favor of [them] the existence of every fact the . . . court could reasonably deduce from the record’” (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1022, alterations omitted). Conflicts in the evidence “‘do not justify the reversal of a [finding], for it is the exclusive province of the [court] to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.’” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Reversal “‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support”’ the [court’s findings].” (Ibid.)

Substantial evidence supports the trial court’s finding that Tina did not prove her promissory estoppel claim. As to its first required element, Tina identifies nothing in the record showing that Betty clearly and unambiguously promised to leave Tina her portion of the Camarillo house. In fact, Tina does not identify what Betty’s alleged promise was. If it was Betty’s assumption that Tina would one day inherit the house when the two purchased it in 1994, that assumption hardly contained the “clear and unambiguous” terms required in a promissory estoppel claim. If it was Betty’s offer to quitclaim the house at some point between 2006 and 2008, Tina rejected that offer. Then, when Tina asked if it was still available in 2014, Betty said that it was not. In fact, Betty wrote Tina out of her will. From this evidence it could reasonably be inferred that Betty did not clearly and unambiguously promise that Tina would inherit her portion of the house. Rejection of Tina’s promissory estoppel claim was accordingly proper. (Division of Labor Law Enforcement v. Transpacific Transportation Co. (1977) 69 Cal.App.3d 268, 277-278 [promise is “indispensable element” of promissory estoppel].)

We would reach the same conclusion even if Betty had made a clear and unambiguous promise that Tina would inherit her portion of the Camarillo house. If the relevant promise were Betty’s assumption that Tina would inherit the house, it is not clear that Betty communicated that assumption to Tina when they bought the house in 1994, or that Tina learned of it through some other means. There can be no reliance without knowledge. (Bulman v. Safeway, Inc. (Wash. 2001) 27 P.3d 1172, 1175.) And even if Tina did know about Betty’s assumption, she also knew that it was predicated on: (1) Tina paying the mortgage, insurance, and other fees on the Camarillo house, and (2) Betty living either there or as Scott’s guest in his Oxnard condominium. Where reliance is bargained for and involves consideration, the doctrine of promissory estoppel is inapplicable. (Healy v. Brewster (1963) 59 Cal.2d 455, 463.) If the relevant promise were instead Betty’s offer to quitclaim the house to Tina in the two years after she and Scott married in 2006, Tina’s rejection of that offer prevents her from claiming that she reasonably relied on it. (Niles v. Hancock (1903) 140 Cal. 157, 161.) Reversal is unwarranted.

Equitable defenses

Tina next contends the trial court erred when it rejected her claims that: (1) Betty waived her right to partition the Camarillo house, (2) Betty’s failure to do equity prevents partition, (3) Betty’s breach of the covenant of good faith and fair dealing prevents partition, and (4) permitting partition would violate the requirement of fairness. We again disagree.

1. Waiver

“‘Partition is a remedy much favored by the law.’” (LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 493.) A property owner “has an absolute right to partition unless barred by a valid waiver.” (Ibid.) That waiver can be express or implied. (Ibid.) Whether Betty waived her right to partition presents a question of fact. (Long Beach Unified Sch. Dist. v. State of California (1990) 225 Cal.App.3d 155, 171.) We will uphold the trial court’s determination that she did not if supported by substantial evidence. (Ibid.)

Substantial evidence supports the trial court’s finding that Betty did not waive her right to partition. Tina claims Betty promised that Tina would inherit the house if she performed her terms of the agreement. Tina argues this promise included an implied waiver that Betty would not seek to partition the house. But even if we assume that Betty made such a promise, it was contingent on her having a place to live, either at the house or as Scott’s guest at the Oxnard condominium. Betty never moved into the Camarillo house. And she was no longer a guest at the condominium when Tina and Scott demanded rental payments, a security deposit, and $30,000 in deferred maintenance costs. Betty was thus excused from any promise she made, including any implied waiver of her right to partition. (Gold Mining & Water Co. v. Swinerton (1943) 23 Cal.2d 19, 33 [performance excused by other party’s breach].)

2. Failure to do equity

A plaintiff must do equity to obtain equitable relief. (Leonard v. Bank of America etc. Assn (1936) 16 Cal.App.2d 341, 346.) Tina claims the trial court erred when it permitted Betty to partition the Camarillo house without requiring her to do equity by performing her promise to leave Tina the house as her inheritance. Again, however, it is not clear that such a promise was made. And even if it was, Betty was excused from performing that promise when Tina left her without a place to live. Forcing Betty to perform her end of a breached agreement would not be equitable.

3. Other equitable defenses

Tina also claims, for the first time on appeal, that partition should not be permitted because: (1) Betty breached the covenant of good faith and fair dealing, and (2) it would violate the requirement of fairness. Because she did not plead and prove these defenses at trial, we do not consider them here. (Allen v. Meyers (1936) 5 Cal.2d 311, 316.)

Betty’s contribution to mortgage payments

Tina contends the trial court erred when it denied her request to order Betty to contribute a “proportionate share” of the payments she had made on the mortgage principal, interest, and insurance. But at trial, Tina admitted that the mortgage was part of her contribution toward the purchase of the Camarillo house and was her sole responsibility to pay. She cannot now complain that the court erred when it declined to order Betty to contribute to the balance remaining on it. (Riley v. Turpin (1960) 53 Cal.2d 598, 604.)

Moreover, upon partition, a cotenant is entitled to reimbursement only for “expenditures in excess of [their] fractional share” of mortgage payments. (Wallace v. Daley (1990) 220 Cal.App.3d 1028, 1035-1036.) Here, even with the mortgage, Tina’s fractional share of the purchase price of the Camarillo house was less than Betty’s. She is not entitled to reimbursement.

Reimbursement for Betty’s overpayment

Finally, Tina contends the trial court erred when it ordered her to reimburse Betty $22,500 from her portion of the proceeds from the sale of the Camarillo house, an amount representing one-half the amount by which Betty’s contribution toward the purchase price exceeded Tina’s. But the case on which Tina relies to support her contention involved a joint tenancy. (See Milian v. De Leon (1986) 181 Cal.App.3d 1185, 1194-1195 [“insofar as any disparity in the contributions of the parties to the initial acquisition of the property is concerned, the determination there was a true joint tenancy supports the court’s determination that there need be no accounting or contribution” (italics added)].) Since 2016, Betty and Tina have held the Camarillo house as tenants in common. As the Milian court recognized, a different rule applies to property held by tenants in common: “[U]pon partition a cotenant who has paid a disproportionate portion of the purchase price is entitled to reimbursement of the portion disproportionately paid.” (Id. at p. 1195; see also Demetris v. Demetris (1954) 125 Cal.App.2d 440, 445.) Reimbursement was properly ordered here.

DISPOSITION

The trial court’s interlocutory judgment, entered January 30, 2019, is affirmed. Betty Van Diepen shall recover her costs on appeal.

NOT TO BE PUBLISHED.

TANGEMAN, J.

We concur:

GILBERT, P. J.

YEGAN, J.

Henry J. Walsh, Judge

Superior Court County of Ventura

______________________________

Schaeffer Cota Rosen, Andrew K. Whitman; Procter, Shyer & Winter and James Norris Procter II, for Defendant, Cross-complainant and Appellant.

Lavere | Huff and Paul R. Huff, for Plaintiff, Cross-defendant and Respondent.