Case Number: TC029110 Hearing Date: January 08, 2019 Dept: A

# 9. James Britt v. Nicole Tillman, et al.

Case No.: TC029110

Matter on calendar for: motion for summary judgment

Tentative ruling:

I. Background

Plaintiff James Britt and defendant Nicole Tillman are recently divorced. Britt alleges that the property at 629 W. Myrrh Ln., Compton, California 90020, was sold without his consent and below market value. He seeks to quiet title. Defendant Andres Davis bought the property from Tillman. Davis later refinanced the property with a loan from defendant Quicken Loans. The Complaint includes causes of action for conversion and quiet title.

A notice of related case was filed. There were no appearances at the September 27, 2018 hearing, and the notice of related case was not addressed at that time.

Only the second cause of action for quiet title is alleged against Quicken Loans. Quicken’s motion for judgment on the pleadings was granted on November 15, 2018, with leave to amend.

Britt filed the instant motion for summary judgment, or in the alternative, summary adjudication, on September 20, 2018, against Quicken, Tillman, and Davis. The motion is based on the Complaint. Quicken’s opposition suggests an amended complaint was filed on December 5, 2018; however, there is no amended complaint in the Court’s file.

In any event, for the reasons set forth below, the Court denies the motion.

II. Standard

A “motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (C.C.P., § 437c(c).) Once the moving party has met its burden of demonstrating that there is no triable issue as to any material fact, the opposing party cannot rest upon the mere allegations of the pleadings but must present admissible evidence showing that there is a genuine issue for trial. (Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 844.) “In ruling on the motion, the court must consider all of the evidence and all of the inferences reasonably drawn therefrom… and must view such evidence… in the light most favorable to the opposing party.” (Id. at 844-845; C.C.P., § 437c(p)(2).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (C.C.P., § 437c(f)(1).)

“A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.” (C.C.P., § 437c(p)(1).)

III. Analysis

The Court grants both requests for judicial notice.

a. Conversion

The elements of conversion are: (1) plaintiff’s ownership or right to possession of personal property, and (2) defendant’s disposition of the property inconsistent with plaintiff’s rights, and (3) resulting damage. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “[I]t is generally acknowledged that conversion is a tort that may be committed only with relation to personal property and not real property.” (Munger v. Moore (1970) 11 Cal.App.3d 1, 7.). As alleged in the Complaint, Britt’s action for conversion is based on real property, not personal property. Real property cannot be the basis for this cause of action. Britt cannot establish the elements of this claim.

b. Quiet title

This cause of action is alleged against all three defendants. Judgment on the pleadings was entered in favor of Quicken. Consequently, this motion fails as to Quicken. Britt apparently has filed an amended complaint; Quicken’s demurrer is scheduled for January 27, 2018.

Britt’s claim against Tillman and Davis rests on the assumption that the property was purchased with community property because it was purchased during the marriage. Property acquired during marriage is community property, unless otherwise provided by statute. (Fam. Code, § 760.) Family Code § 770(a) lists property that is considered the separate property of a married person. This includes property acquired via gift, bequest, devise, or descent. (Fam. Code, § 770(a)(2).) The character of property purchased on credit “is determined according to the intent of the seller to rely upon the separate property of the purchaser or upon a community asset. [Citations.]” (Gudelj v. Gudelj (1953) 41 Cal.2d 202, 210.) Britt provides no evidence that the purchase was made with community property besides paragraph 7 of his declaration, which states Tillman provided the bank with her employment information when applying for the loan. (Decl. Britt ¶ 7.) Viewed in the light most favorable to the non-moving party, this shows nothing more than a bank’s routine background check. Britt does not provide evidence that the bank relied on Tillman’s wage income or was used to make payments.

Even if Britt’s declaration were sufficient, the presumption would be rebutted by Tillman’s own declaration stating that the property was purchased with funds provided by her mother as a gift. (Decl. Tillman ¶ 3.)

Britt has failed to show there is no triable issue of material fact as to the second cause of action for quiet title as to Tillman or Davis.

IV. Ruling

The motion for summary judgment or summary adjudication is denied.