Case Name: Masako Sato v. Mariko Morita, et al.

Case No.: 17CV306791

Motion of Defendant/ Cross-Complainant/ Cross-Defendant Mariko Morita for Summary Adjudication

Plaintiff Masako Sato (“Masako”) is the owner of real property located at 9515 Sugar Babe Drive in the city of Gilroy (“Subject Property”). (First Amended Complaint (“FAC”), ¶5.) On May 25, 1988, plaintiff Masako and Shuichi Sato (“Shuichi”) acquired title to the Subject Property via a deed which was titled, “SHUICHI SATO and MASAKO SATO, husband and wife AS JOINT TENANTS.” (FAC, ¶6.)

Defendant Mariko Morita (“Morita”) occupied the Subject Property with Shuichi’s consent. (FAC, ¶7.) On January 10, 2017, Shuichi died. (FAC, ¶8.) On January 10, 2017, title to the Subject Property remained in the names of Shuichi and Masako as joint tenants. (FAC, ¶9.) Upon Shuichi’s death, his interest in the Subject Property passed to the surviving joint tenant, Masako, by operation of law. (FAC, ¶10.) Defendant Morita’s right to occupy the real property was terminated and extinguished upon Shuichi’s death. (FAC, ¶11.) At no time did plaintiff Masako enter into a landlord tenant relationship with defendant Morita. (FAC, ¶12.)

On February 21, 2017, plaintiff Masako recorded an affidavit-death of joint tenant. (FAC, ¶13.) Defendant Morita remains in possession of the Subject Property. (FAC, ¶14.) Despite demands by plaintiff Masako, defendant Morita has failed and refused to vacate and turn over possession of the Subject Property to plaintiff Masako. (FAC, ¶¶15 – 16.) Defendant Morita continues to occupy the Subject Property adversely and against plaintiff Masako’s rights as owner of the Subject Property. (FAC, ¶17.) The reasonable rental value of the Subject Property is $4,200 per month. (FAC, ¶18.)

On February 28, 2017, plaintiff Masako filed a complaint against defendant Morita asserting a single cause of action for ejectment.

On March 30, 2017, plaintiff Masako filed a FAC against defendant Morita and any successors or claimants of decedent Shuichi. The FAC now asserts causes of action for:

(1) Ejectment
(2) Partition

Also on March 30, 2017, defendant Morita filed an answer to plaintiff Masako’s complaint and also filed a cross-complaint against plaintiff/ cross-defendant Masako. In the cross-complaint, defendant/ cross-complainant Morita alleges she was married to Shuichi. (Morita Cross-Complaint, ¶2.) Prior to defendant/ cross-complainant Morita’s marriage to Shuichi, Shuichi and plaintiff/ cross-defendant Masako were married. (Morita Cross-Complaint, ¶3.) During their marriage, plaintiff/ cross-defendant Masako and Shuichi acquired the Subject Property as husband and wife in joint tenancy. (Id.)

In late 1999, plaintiff/ cross-defendant Masako and Shuichi dissolved their marriage by mutual consent authorized and in accordance with Japanese law. (Morita Cross-Complaint, ¶4.) Shuichi died on January 10, 2017 and defendant/ cross-complainant Morita is Shuichi’s successor in interest by virtue of Shuichi’s will leaving any and all of his property and estate to defendant/ cross-complainant Morita. (Morita Cross-Complaint, ¶5.)

Morita’s cross-complaint asserts the following causes of action:

(1) Declaratory Relief as to Severance of Joint Tenancy Interests in Real Property
(2) Declaratory Relief as to Tenancy in Common Interests in Real Property Resulting from Dissolution of Marriage Unaccompanied by Property Adjudication

On April 20, 2017, plaintiff/ cross-defendant Masako filed an answer to defendant/ cross-complainant Morita’s cross-complaint and also filed a further cross-complaint against Morita. In her cross-complaint, Masako alleges she, Shuichi, and their two sons moved from Japan to the United States in July 1976. (Masako Cross-Complaint, ¶3.) On September 23, 1988, Masako became a United States citizen. (Masako Cross-Complaint, ¶4.) On May 26, 1999, Shuichi became a United States citizen. (Masako Cross-Complaint, ¶5.)

In approximately November 1999, Shuichi obtained a Japanese notification of divorce form (i.e., a mutual agreement for divorce) from the Japanese consulate in San Francisco. (Masako Cross-Complaint, ¶6.) In November 1999, Shuichi presented the Japanese notification of divorce form to Masako for her signature. (Masako Cross-Complaint, ¶7.) On November 23, 1999, Shuichi submitted the Japanese notification of divorce form to the Japanese consulate office in San Francisco. (Masako Cross-Complaint, ¶8.) On January 5, 2000, Masako left California for Japan. (Masako Cross-Complaint, ¶9.) On January 16, 2000, Masako recorded her residency in Japan for the first time since July 1976. (Masako Cross-Complaint, ¶10.)

Between July 1976 and January 2000, Shuichi and Masako both lived in, were domiciled in, and were citizens of the State of California during which time Shuichi worked in California, operated a business in California, both voted in California, both owned real estate in California, both maintained bank accounts in California, both paid California and federal income taxes, and both raised two children in California. (Masako Cross-Complaint, ¶11.) Between July 1976 and 2000, Shuichi never returned to Japan except for occasional visits with his sister and for business. (Masako Cross-Complaint, ¶12.) Shuichi never resided in Japan after July 1976. (Id.)

No divorce/ dissolution of marriage proceeding was ever filed in California. (Masako Cross-Complaint, ¶14.) No court in Japan, California, or elsewhere has ever issued/ rendered a decree of divorce or dissolution of the marriage of Masako and Shuichi. (Masako Cross-Complaint, ¶15.) Shuichi died on January 10, 2017. (Masako Cross-Complaint, ¶16.)

Masako’s cross-complaint asserts a single cause of action for declaratory relief. Masako seeks a judicial determination that the Japanese divorce is invalid, unenforceable, and not recognizable by the State of California. (Masako Cross-Complaint, ¶18.) Masako seeks a further determination that she is the surviving joint tenant of the Subject Property. (Masako Cross-Complaint, ¶19.)

On May 5, 2017, defendant Morita filed her answer to plaintiff Masako’s FAC.

On May 25, 2017, cross-defendant Morita filed a demurrer to Masako’s cross-complaint. On July 25, 2017, the court overruled cross-defendant Morita’s demurrer to Masako’s cross-complaint. On August 15, 2017, cross-defendant Morita filed her answer to Masako’s cross-complaint.

On December 5, 2017, Morita filed the motion now before the court, a motion for summary adjudication of the first cause of action in Masako’s FAC for ejectment.

I. Request for judicial notice.

In support of her opposition to the motion for summary adjudication, Masako requests judicial notice of (1) the fact that no action was ever filed by Shuichi against Masako in the Santa Clara County Superior Court or any other court of this state; (2) the fact that there has been no probate of Shuichi’s will in the Santa Clara County Superior Court or in any other court of this state; and (3) the recordation of an affidavit-death of joint tenant. Since the court did not find any of these facts to be relevant to its determination, the court declines to take judicial notice of these facts.

II. Defendant Morita’s motion for summary adjudication of the first cause of action in plaintiff Masako’s FAC is DENIED.

“[A]n action in ejectment … is a means of awarding possession because the prevailing party had title and right of possession at the commencement of the action, and defendant had no such title nor right of possession. [Citation.] It is the proper remedy of the true owner for the recovery of possession and the value of the use and occupation of the land during unlawful holding. [Citation.]” (Paap v. Von Helmholt (1960) 185 Cal.App.2d 823, 829.)

Masako alleges she holds title to the entirety of the Subject Property by virtue of her status as the surviving joint tenant. In moving for summary adjudication, Morita asserts the joint tenancy was severed when Shuichi offered to purchase Masako’s interest in the Subject Property for $300,000 around June-July 2002 and Masako accepted the offer. “[A]n agreement by one joint tenant to sell his interest in the jointly held property to the other is obviously inconsistent with an intent to continue the joint tenancy.” (Smith v. Morton (1972) 29 Cal.App.3d 616, 621.)

Morita concedes the buy-out agreement was never performed, but cites Estate of Asvitt (1979) 92 Cal.App.3d 348, 353 (Asvitt) for the proposition that, “An agreement to sever operates to effect a severance, and the intervening death of one of the joint tenants will not defeat the severance even though the agreement is not performed.” Morita’s position is that the sale agreement, although not performed, served to sever the joint tenancy between Shuichi and Masako and created a tenancy in common. Morita proffers evidence that Shuichi executed a will leaving all of his property and estate to her and that she is, thereby, the successor in interest to Shuichi’s tenancy in common interest in the Subject Property.

Morita continues by arguing that, as a tenant in common, she is “equally … entitled to share in the possession of the entire property and neither [tenant] may exclude the other from any part of it.” (Zaslow v. Kroenert (1946) 29 Cal.2d 541, 548 (Zaslow).) “Upon proof of ouster and a demand for entry by the cotenant out of possession and a refusal by the cotenant in possession the ousted cotenant is entitled to recover common possession of the premises. [Citations.] And one tenant in common ousted by another is entitled to recover damages resulting from the ouster, which ordinarily amounts to his share of the value of the use and occupation of the land from the time of the ouster. [Citations.]” (Ibid.) “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. The ouster 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. Actual or constructive possession of the ousted tenant in common at the time of the ouster is not necessary. [Citations.]” (Ibid.)

Morita proffers evidence that she has been the sole tenant in possession since Shuichi’s death on January 10, 2017 and has not ousted Masako as Masako has never visited the Subject Property; never informed Morita that she would like to visit or reside at the Subject Property; and Morita has never prevented Masako from entering or moving in with her at the Subject Property.

In opposition, Masako proffers evidence and argument which would present a triable issue of material fact. Contrary to Morita’s evidence which purportedly establishes an agreement between Masako and Shuichi for sale of the Subject Property, Masako proffers evidence that she did not accept Shuichi’s offer, but rather proposed a counter-offer with new and additional terms. Furthermore, Masako directs the court’s attention to Civil Code section 683.2, enacted after Asvitt, which sets forth specific requirements to effectively terminate a right of survivorship.

That section states, in relevant part:
(c) Severance of a joint tenancy of record by deed, written declaration, or other written instrument pursuant to subdivision (a) is not effective to terminate the right of survivorship of the other joint tenants as to the severing joint tenant’s interest unless one of the following requirements is satisfied:
(1) Before the death of the severing joint tenant, the deed, written declaration, or other written instrument effecting the severance is recorded in the county where the real property is located.
(2) The deed, written declaration, or other written instrument effecting the severance is executed and acknowledged before a notary public by the severing joint tenant not earlier than three days before the death of that joint tenant and is recorded in the county where the real property is located not later than seven days after the death of the severing joint tenant.
(d) Nothing in subdivision (c) limits the manner or effect of:
(1) A written instrument executed by all the joint tenants that severs the joint tenancy.
(2) A severance made by or pursuant to a written agreement of all the joint tenants.
(3) A deed from a joint tenant to another joint tenant.

Thus, even if there had been some agreement, Masako argues Civil Code section 1624 requires such an agreement to be in writing and Morita has not demonstrated the existence of such a written agreement or that such a written instrument was recorded as required by Civil Code section 683.2. However, the court need not even decide this issue.

The court finds a triable issue of material fact exists with regard to whether Masako and Shuichi entered into an agreement to sell the Subject Property. Consequently, defendant Morita’s motion for summary adjudication of the first cause of action of plaintiff Masako’s FAC is DENIED.

Plaintiff Masako filed various objections in opposition to defendant Morita’s motion for summary adjudication. The court declines to rule on Masako’s evidentiary objections. “In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (Code Civ. Proc., §437c, subd. (q).)