Filed 12/8/14 Wilson v. Benson CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


LINNEA WILSON, as Trustee, etc.,                                     H038833
                                                                    (Santa Cruz County
         Plaintiff and Appellant,                                    Super. Ct. No. PR045408)

         v.

JOHN BENSON et al.,

         Defendants and Respondents.



         Appellant Linnea Wilson’s petition to determine ownership of property and cancel
a deed was dismissed on statute of limitations grounds by summary judgment. On
appeal, she contends that the five-year limitations period under Code of Civil Procedure
sections 318 and 3191 had never commenced to run because she retained legal title to the
property as trustee of a trust. We agree and reverse the judgment.


                                               I. Undisputed Facts
         Selda Benson (Selda) was the mother of two children, Linnea Wilson (Wilson)
and John Benson (John). In June 2000, Selda executed a trust declaration creating a
revocable living trust, appointed Wilson as the trustee of the trust, and transferred Selda’s


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      Subsequent statutory references are to the Code of Civil Procedure unless
otherwise specified.
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interest in her Aptos home (the property) into the trust. The trust declaration provided
that Selda “may add property to the trust or remove property from the trust at any time.”
The trust declaration also provided that, upon Selda’s death, the property in the trust was
to be shared equally by Wilson and John.
       In June 2004, Selda executed a quitclaim deed transferring her interest in the
property to John, his wife Carolyn Benson (Carolyn), and herself as equal joint tenants.
This deed was recorded in June 2004. At the same time, Selda executed a will leaving all
of her personal property to Wilson. Selda shortly thereafter moved to Florida where John
and Carolyn resided. Wilson learned of the quitclaim deed no later than May 2005. In
2005, John obtained a guardianship over Selda’s person and property due to her
incapacity. Selda continued to pay the property taxes on the property until she died in
2008. In 2011, Selda’s personal property was distributed to Wilson under Selda’s 2004
will. John and Carolyn have remained in Florida from 2004 to the present.


                               II. Procedural Background
       In 2011, Wilson filed a petition that asserted three causes of action. The first
cause of action was brought in Wilson’s capacity as trustee “to determine ownership” of
the property. The second and third causes of action were brought in Wilson’s capacity as
Selda’s “successor in interest” to cancel the 2004 deed due to Selda’s lack of capacity
and John’s undue influence on her at the time of its execution.




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        Although the appellate record does not contain a deed transferring the property to
Wilson as trustee of the trust, both Wilson and John declared that Selda did so at the same
time that she executed the trust declaration. “To create an express trust there must be an
explicit declaration of trust followed by an actual conveyance or transfer of property to
the trustee.” (Bainbridge v. Stoner (1940) 16 Cal.2d 423, 428.) “ ‘A trust always requires
transfer of legal title to the trustee . . . .’ ” (Estate of Heggstad (1993) 16 Cal.App.4th
943, 950.)

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          John and Carolyn moved for summary judgment based on the statute of
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limitations. They asserted that the five-year limitations period under sections 318 and
319 applied and had expired before Wilson filed her action. Their motion assumed, for
purposes of the motion only, that Selda lacked capacity and was subjected to undue
influence when she executed the 2004 deed.
          Wilson’s opposition to the motion conceded that the five-year limitations period
applied, but she argued that the period had not begun to run because she remained
“ ‘seised’ ” of the property as the trustee of the trust. She also argued that the limitations
period was tolled under section 351 because Selda, John, and Carolyn were in Florida
throughout the period between the execution of the 2004 deed and the filing of Wilson’s
action.
          The trial court found that there were no material disputes of fact, that the five-year
limitations period had expired, and that it had not been tolled. It entered judgment
against Wilson and denied her motion for a new trial. Wilson timely filed a notice of
appeal.


                                          III. Analysis
          Section 318 provides: “No action for the recovery of real property, or for the
recovery of the possession thereof, can be maintained, unless it appear that the plaintiff,
his ancestor, predecessor, or grantor, was seized or possessed of the property in question,
within five years before the commencement of the action.” (Italics added.) Section 319
provides: “No cause of action, or defense to an action, arising out of the title to real
property, or to rents or profits out of the same, can be effectual, unless it appear that the


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       Their summary judgment motion also contended that the second and third causes
of action were barred by laches. The trial court did not credit this contention, and they do
not renew it in their brief on appeal. In any case, it would not justify summary judgment
as they did not contend that the first cause of action was barred by laches.

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person prosecuting the action, or making the defense, or under whose title the action is
prosecuted, or the defense is made, or the ancestor, predecessor, or grantor of such person
was seized or possessed of the premises in question within five years before the
commencement of the act in respect to which such action is prosecuted or defense made.”
(Italics added.)
       The parties dispute whether it is section 318 or instead section 319 that applies
here, but this dispute is immaterial. “The overall effect of these sections is manifest:
actions relating to either the possession of or title to real property (or, of course, both)
must be commenced within five years from the end of possession or seizin of that
property by the claimant or his or her predecessor in interest . . . .” (Robertson v.
Superior Court (2001) 90 Cal.App.4th 1319, 1328.) “ ‘ “The requirement of seisin or
possession is met when it is established that the plaintiff was possessed of legal
title . . . .” ’ ” (Tobin v. Stevens (1988) 204 Cal.App.3d 945, 949.) Wilson’s action sought
to recover title to and possession of the property. Thus, the five-year limitations period
applied.
       Five years indisputably elapsed between the June 2004 deed and Wilson’s
commencement of this action in 2011. Wilson contends that the five-year period not only
had not expired but had never begun to run because she continued to be “seized . . . of the
property in question” as trustee. In her view, Selda lacked the power to convey anything
more than equitable title to the property after transferring the property to Wilson as
trustee of the trust. Consequently, the 2004 deed did not convey legal title, which Wilson
retained as trustee. John and Carolyn, on the other hand, insist that the 2004 deed
indisputably conveyed legal title so Wilson lacked legal title as of the execution of the
2004 deed.
       “[I]t is a rudimentary principle of trust law that the creation of a trust divides
title—placing legal title in the trustee, and equitable title in the beneficiaries.” (Allen v.
Sutter County Bd. of Equalization (1983) 139 Cal.App.3d 887, 890.) “The beneficiary of

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an ordinary trust is empowered to convey only his beneficial interest in the trust property.
[Citation.] Since the beneficiary holds only equitable title, the legal title residing in the
trustee, the beneficiary has no power to convey absolute ownership of trust property.”
(Walgren v. Dolan (1990) 226 Cal.App.3d 572, 576 (Walgren).)
        John and Carolyn claim that Walgren supports their claim that Selda retained the
power to convey absolute ownership of the trust property. Not so. In Walgren, the
settlor had transferred legal title to the trustees and thereafter entered into a contract to
sell the property to the plaintiffs. The settlor died, and the plaintiffs brought an action for
specific performance against the trustees. The court held that specific performance was
available despite the settlor’s lack of legal title at the time of the contract because the
settlor had retained the power to “ ‘call for’ legal title” and require the trustees to convey
title to the plaintiffs. (Walgren, supra, 226 Cal.App.3d at p. 576.) The source of that
power was a provision in the trust declaration that “ ‘[u]pon receipt of written directions
from the Beneficiary, the Trustee in their capacity as Trustee shall do and perform any or
all of the following acts, to wit [¶] . . . [¶] . . . [c]onvey all or any parts of said real
property, subject to all matters then of record against the same, to the person or persons
designated in said directions and for such consideration and on such terms and conditions
as are therein specified.’ ” (Walgren, at p. 575, fn.1.) It was this provision that rendered
specific performance available to the plaintiffs after the settlor’s death, as the settlor had
the power to require the trustees to convey title and would have been obligated to do so if
still alive.
        Unlike Walgren, the case before us does not involve such a provision nor does it
involve an obligation by the settlor (Selda) to convey legal title to John and Carolyn.
Selda’s trust declaration reserved to her the power to amend or revoke the trust and the
power to add or remove property from the trust. While she executed a quitclaim deed
purporting to convey a portion of the property to John and Carolyn, John and Carolyn did
not attempt to establish that Selda ever exercised her power to amend or revoke the trust

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or her power to remove the property from the trust. “ ‘A quitclaim deed transfers
whatever present right or interest the grantor has in the property. [Citation.]’ ” (City of
Manhattan Beach v. Superior Court (1996) 13 Cal.4th 232, 239.) The quitclaim deed
itself contained no language purporting to remove the property from the trust or to amend
or revoke the trust. Since, at the time of the quitclaim deed, Selda held only equitable
title, but not legal title, to the property, the quitclaim deed conveyed only a portion of
Selda’s equitable title and left undisturbed the legal title that Wilson held as trustee of the
trust.
         John and Carolyn put misplaced reliance on Zanelli v. McGrath (2008) 166
Cal.App.4th 615 (Zanelli), Galdjie v. Darwish (2003) 113 Cal.App.4th 1331 (Galdjie),
and Steinhart v. County of Los Angeles (2010) 47 Cal.4th 1298 (Steinhart). In all three of
these cases, the settlor was both the trustee and the beneficiary of the trust and therefore
held both legal and equitable title. (Zanelli, at pp. 633-635; Galdjie, at p. 1350;
Steinhart, at p. 1320.) Thus, unlike Selda, the settlors in those cases were able to convey
absolute title.
         The trial court erred in granting summary judgment because the five-year
limitations period had never begun to run under sections 318 and 319 as Wilson
continues to hold legal title to the property. In reaching this conclusion on the statute of
limitations issue, we express no opinion on the merits of Wilson’s petition to determine
ownership of the property and cancel a deed.


                                       IV. Disposition
         The judgment is reversed. The trial court is directed to vacate its order granting
the summary judgment motion and to enter a new order denying that motion. Wilson
shall recover her appellate costs.




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                                   _______________________________
                                   Mihara, J.



WE CONCUR:




_____________________________
Bamattre-Manoukian, Acting P. J.




_____________________________
Grover, J.




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