Filed 5/5/14 Pham v. Vo CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE


MEN THI PHAM,                                                        B246989

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC461365)
         v.

TUNG HOANG VO et al.,

         Defendants and Respondents.


         APPEAL from a judgment of the Superior Court of Los Angeles County, David L.
Mining, Judge. Affirmed.
         Gilbert & Nguyen, Jonathan T. Nguyen for Plaintiff and Appellant.
         Pete Nguyenton Nguyen for Defendants and Respondents.
       Plaintiff Men Thi Pham appeals the judgment of dismissal entered after the trial
court sustained, without leave to amend, the demurrer of defendants Tung Hoang Vo, The
Group, Cong Nguyen, H&H Perfection Fabrication, Inc., and Tuan Ngoc Pham to this
quiet title lawsuit. We agree with the trial court’s determination that the statute of
limitations on plaintiff’s adverse possession claim was tolled during the pendency of an
earlier quiet title action, and so affirm the judgment of dismissal.


                    FACTUAL AND PROCEDURAL BACKGROUND
       Plaintiff first took possession of the real property in question (“the property”), in
2000 with permission of the record title holder. Five years later, after she was directed to
vacate the property, plaintiff filed a quiet title action (the “First Action”), seeking title to
the property on the legal theories of constructive trust and adverse possession. The trial
court found that there was no constructive trust, but entered judgment in plaintiff’s favor
based on her claim of adverse possession.
       Defendant appealed the judgment in the First Action. In May 2009, in an
unpublished opinion, this court reversed the decision of the trial court. We held that
plaintiff had failed to establish her adverse possession claim because her initial
possession of the property was permissive, and she failed to prove that her possession of
the property was hostile and adverse to the defendants’ interest before she filed suit in
March 2006. (Pham v. Vo (May 15, 2009, B203709).) We remanded the case to the trial
court for further proceedings, which were not concluded until October 2012, when a
judgment against plaintiff was entered.
       During the period between the filing of our 2009 opinion and the entry of
judgment by the trial court on remand, plaintiff filed a second quiet title action (the
“Second Action”) seeking title by adverse possession. Plaintiff alleged that her continued
possession of the property subsequent to the filing of the First Action was clearly adverse
and hostile to defendant’s title, thereby providing the sole element lacking from her
earlier adverse possession claim.

                                                2
       Defendants demurred to the First Amended Complaint filed in the Second Action,
contending that the prescriptive time period, that is, the period of uninterrupted hostile
possession upon which Plaintiff based her claim of adverse possession, was not met
because it was tolled during the pendency of the First Action. The trial court sustained
the demurrer without leave to amend. Plaintiff timely filed a Notice of Appeal.
       The sole issue on appeal is plaintiff’s contention that on the date that she filed the
First Action, a new five year prescriptive time period – that is, five years of continuous
and uninterrupted possession – commenced to run. She maintains that in the Second
Action, she satisfied both the “hostility” element of an adverse possession claim by her
having filed and litigated the First Action, and the five years of uninterrupted possession
requirement, since more than five years had accrued between the filing of the First Action
and the Second Action.


                                STANDARD OF REVIEW
       “On review of an order sustaining a demurrer without leave to amend, our
standard of review is de novo, ‘i.e., we exercise our independent judgment about whether
the complaint states a cause of action as a matter of law.’ [Citation.]” (Santa Teresa
Citizen Action Group v. State Energy Resources Conservation & Development Com.
(2003) 105 Cal.App.4th 1441, 1445.) “‘“We treat the demurrer as admitting all material
facts properly pleaded, but not contentions, deductions or conclusions of fact or law.
[Citation.] We also consider matters which may be judicially noticed.” [Citation.]
Further, we give the complaint a reasonable interpretation, reading it as a whole and its
parts in their context. . . .’” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112,
1126.)1




1
       Plaintiff does not contend in the present case that the court abused its discretion in
not granting leave to amend.
                                              3
                                        DISCUSSION
       The Supreme Court in a series of opinions in the late 19th and early 20th centuries
ruled that in cases claiming prescriptive rights, including adverse possession cases, that
the continuous and uninterrupted possession of property for a period of five years, a
necessary element for a claim of a prescriptive right, was tolled when litigation was filed
either by the owner or the adverse possessor seeking a determination as to ownership of
the property in question. (Alta Land & Water Co. v. Hancock (1890) 85 Cal. 219, 228;
Kirsch v. Kirsch (1896) 113 Cal. 56, 59; In re Estate of Richards (1908) 154 Cal. 478,
488; Knoke v. Swan (1935) 2 Cal.2d 630, 632.)
       In 1953 Justice Roger Traynor authored a Supreme Court opinion, Yorba v.
Anaheim Union Water Co. (1953) 41 Cal.2d 265 (“Yorba”), dealing with a dispute as to
ownership of water rights between riparian users, with one party claiming prescriptive
rights to a portion of the water. In recognition of the foregoing decisional law, he stated,
“It is true that ordinarily the filing of an action, either by the person asserting a
prescriptive right, or by a person against whom the statute of limitations is running [the
record title owner], will interrupt the running of the prescriptive period, and the statute
will be tolled while the action is actively pending. [Citations.] On the other hand,
however, an action that has been dismissed or abandoned does not interrupt the running
of the prescriptive period. [Citations].” (Id. at p. 270.)
       Thus, as of 1953, it was clear that in California, there was a tolling of the statute of
limitations in prescriptive rights cases, including claims of ownership by adverse
possession, while the issue of ownership was being actively litigated. However, if the
litigation was terminated by dismissal (voluntary or involuntary) or abandonment, then
the time period during which the litigation was ongoing did not interrupt the running of
the prescriptive period.
       Plaintiff relies on California Maryland Funding, Inc. v. Lowe (1995) 37
Cal.App.4th 1798, 1801 (“Maryland”) to argue that an exception to the tolling rule
applies in this case. Specifically, she relies on the following quoted language from

                                               4
Maryland, which itself is a quote from an earlier appellate opinion, Dong Chun Len v.
Luke Kow Lee (1935) 7 Cal.App.2d 194, 196: “‘[T]he decided weight of authority is that
an unsuccessful action leading to no change of possession does not arrest the running of
the statute of limitations, and this is true whether the suit is prosecuted to judgment or
compromised, or whether the suit is voluntarily abandoned or dismissed for want of
prosecution.’” (Maryland, supra, 37 Cal.App.4th at p. 1804, emphasis added.) Without
benefit of any analysis, plaintiff maintains Maryland supports her position that a quiet
title action which is prosecuted to judgment and resolved against her does not toll the
statute of limitations, because she continued in possession of the property. We disagree.
       In Maryland, Division Three of this District Court of Appeal relied on Yorba to
hold: “In the underlying action for ejectment filed by plaintiff First Boston Credit
Corporation, now named California Maryland Funding, Inc., defendant Wyonna Dell
Lowe cross-complained to quiet title to the same property, claiming acquisition by
adverse possession. Defendant has appealed from the judgment entered in favor of
plaintiff, contending that it is not supported by substantial evidence. Based on settled
California Supreme Court case law, we hold defendant’s earlier lawsuit over the right to
the property, which was filed during the statutory period for adverse possession but later
dismissed for failure to prosecute, did not operate to toll the statute of limitations.2
Therefore defendant’s occupancy of the property was continuous for the statutory
period.” (Maryland, supra, 37 Cal.App.4th at p. 1801.) As the Court of Appeal
explained, “This case is analgous to Yorba and we see no reason why the same result
should not obtain. . . . Like the riparians [in Yorba], the [plaintiffs] could have
vigorously litigated their cross-complaint against defendant for ejectment or to quiet title,
thereby securing a final adjudication of title to the property. By doing so, [they] could
have prevented defendant from acquiring her rights by adverse possession. (Yorba,
supra, 41 Cal.2d at p. 280.) Instead just like the riparians who abandoned the 1885 suit


2
      The earlier action was dismissed after seven years for failure to prosecute pursuant
to Code Civ. Proc., § 583.310.
                                            5
and acquiesced to a preliminary injunction, the [plaintiffs] . . . abandoned their cross-
complaint, thereby precluding final resolution of the matter.” (Id. at p. 1805.)
       We concur in the holding of the appellate court in Maryland, which ruling falls
squarely under the Supreme Court’s holding in Yorba, that is, that there is no tolling of
the prescriptive time period if the action upon which the tolling was based is dismissed or
abandoned. Here, the First Action was not dismissed or abandoned; it was tried to
judgment which determined that plaintiff had no claim of title to the property based on
adverse possession. Therefore, pursuant to the holdings of both Yorba and Maryland,
there was a tolling of the prescriptive time period while the First Action was pending,
including the time on appeal. The language of the Maryland opinion upon which
plaintiff relies, to the effect that the prescriptive period is not tolled if the action is
prosecuted to judgment without a change in possession, describes factual circumstances
not before the court in Maryland, and is thus obiter dictum. Consequently, it provides no
authority in support of plaintiff’s position.
       In sum, once the title owner has defeated the adverse possessor’s claim, he must
regain possession of the real property in order to interrupt the possessor’s period of
continuous and uninterrupted possession. However, until the claim is adjudicated, and so
long as the parties are actively litigating the issue of ownership of the real property, the
law is clear that the limitations period is tolled by the adverse possessor’s quiet title
action. (See Yorba, supra, 41 Cal.2d 265; see also McKenna v. Elliott & Horne Co.
(1953) 118 Cal.App.2d 551, 554 [“Appellant could not have acquired title by adverse
possession subsequent to the entry of the judgments in the actions in which her claims
were rejected [because] [t]hese two actions were filed in May, 1947, and February, 1948,
and the present action was brought in July, 1950. Appellant’s claims were adjudicated in
these two actions [1947 and 1948], and her present suit [1950], to be successful, must be
based upon a title acquired subsequent to such adjudications” (emphasis added)].)




                                                 6
                                    DISPOSITION
      The judgment is affirmed. Defendants shall recover their costs on appeal.
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                 MINK, J.*


      I concur:



             TURNER, P.J.




*
      Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
                                               7
MOSK, J., Dissenting



       I dissent. The applicable five year period of adverse possession was not tolled.
As I discuss, this case raises an issue as to tolling that has been dealt with in varying
ways by California cases, by authorities in other jurisdictions, and by treatise writers.
The preferable rule is the one that I believe is applicable in this case.
       The elements necessary to establish ownership of real property by adverse
possession are the following: tax payments and actual possession that is open, notorious,
continuous, uninterrupted for five years, and hostile and adverse to the true owner’s title
and under either color of title or claim of right. (California Maryland Funding, Inc. v.
Lowe (1995) 37 Cal.App.4th 1798, 1803.) Code of Civil Procedure section 325,
subdivision (b) provides, “In no case shall adverse possession be considered established
. . . unless it shall be shown that the land has been occupied and claimed for the period of
five years continuously . . . .” Possession interrupted by the filing of an action before the
statutory period had elapsed “removes the basis of such a claim.” (Knoke v. Swan (1935)
2 Cal.2d 630, 632.) Here plaintiff does not seek to invoke the period of possession before
the filing of her first action. Rather, she asserts that the five-year period for adverse
possession commenced after the filing of that action.
       Defendants contend that a plaintiff cannot claim title to real property by adverse
possession subsequent to entry of a judgment in a prior action in which the claim was
rejected, when a new action was brought less than five years after the adjudication of the
prior action. (See 12 Witkin Summary of Cal. Law (10th ed. 2005) Real Property, § 401,
p. 470.) Plaintiff counters with the following language in California Maryland Funding,
Inc. v. Lowe, supra, 37 Cal.App.4th at p. 1804: “However an exception to this rule
exists: ‘“. . . [T]he decided weight of authority is that an unsuccessful action leading to
no change of possession does not arrest the running of the statute of limitations, and this
is true whether the action is prosecuted to judgment or compromised, or whether the suit
is voluntarily abandoned or dismissed for want of prosecution.”’” (See also Dong Chun
Len v. Luke Kow Lee (1935) 7 Cal.App.2d 194, 196.)
       The legal authorities are not clear on the nature or result of the litigation that will
have the effect of tolling the five-year period. It is stated in 6 Miller and Starr, Cal. Real
Estate (3d ed. 2013) § 16:21, pp. 16-52, “Litigation between an adverse possessor and the
owner of the property that does not result in a change of possession, whether commenced
by the owner or the adverse possessor, does not toll the statute of limitations.” That
authority also states, “Actions that are compromised, abandoned, or dismissed do not
affect the continuity of the possession in any manner. In other words, any judicial
proceeding not resulting in a judgment regarding ownership or right of possession does
not interrupt the running of the statute of limitations.” (Ibid.) Thus, they suggest by this
statement, which appears to be at odds with the above-quoted statement, that only a
judgment regarding ownership or right to possession is necessary, not a change in
possession. The authors then added a new variation: “whether the action is filed by the
owner or the possessor, the action does not toll the limitations period if it does not result
in a change of possession, whether the action proceeds to judgment, is compromised, or
is dismissed for want of prosecution. The period of limitations continues to run as long
as the owner has a remedy.” (Id. at pp. 16-53.) Here, they employ the requirement that
the owner has a remedy. The case law also is not clear on whether the prior litigation, in
order to toll the period, must result in a change of possession or determine ownership or
just have occurred.
       In Langford v. Poppe (1880) 56 Cal. 73, the owner of real property commenced an
ejectment action against the possessor, which action was dismissed. The court said that
the dismissal precluded any tolling and that the possessor’s opposition tended to prove
that possession was adverse (see Hill v. Allan (1968) 259 Cal.App.2d 470, 487 [no tolling
if action dismissed]). In Carpenter v. Natoma Water & Mining Co. (1883) 63 Cal. 616,
617, the court said that even a judgment for ejectment does not stop the running of the
statute of limitations unless it is entered. In Alta Land & Water Co. v. Hancock (1890) 85

                                               2
Cal. 219, 228, the court said that an action in ejectment that resulted in a final judgment
and writ of possession in the owner stopped the running of the statute. As pointed out by
the court in Dong Chun Len v. Luke Kow Lee, supra, 7 Cal.App.2d at p. 196, “the
element of unsuccessful litigation [was not] involved.” Moreover, the court noted the
law applicable to adverse possession of land is “not necessarily the same” as prescriptive
title to the use of water. (Id. at p. 195.) In Breon v. Robrecht (1897) 118 Cal. 469, 470-
471, the court said, “the mere commencement of an action of ejectment which is
afterward dismissed does not disturb an adverse possession. . . . Neither is it necessary
for the purposes of this case, to consider the effect of an unexecuted judgment upon
adverse possession—as in Carpenter v. Natoma Water etc. Co., 63 Cal. 616.” (See
Hodgkins v. People’s Water Co. (1918) 177 Cal. 730, 735.) In Kirsch v. Kirsch (1896)
113 Cal. 56, a husband and wife contested title to real property. It was awarded to the
husband, but the wife asserted she had since acquired new title by adverse possession.
The court held that the wife’s possession during the period during the pendency of the
litigation could not be viewed as being adverse as all such rights were suspended. In
Westphal v. Arnoux (1921) 51 Cal.App. 532, 535, the court said, “That the litigation
between the two spouses had the effect of interrupting the statute of limitations [for
adverse possession] seems clear. . . . [T]he statute of limitations would not begin to run
against the rights created by the judgment rendered in favor of the wife and vesting the
real property in her as her separate property, until that judgment had become a final
determination of the controversy between the parties litigant [citations] . . . .” In In re
Estate of Richards (1908) 154 Cal. 478, 488, the court said “while he and she might
otherwise have been in possession of the requisite time they were not in the peaceable
and undisputed possession, as the title and right of possession were being then actually
litigated in court. (Italics added.)
       In Yorba v. Anaheim Union Water Co. (1953) 41 Cal.2d 265, 270 (Yorba), the
court said, “It is true that ordinarily the filing of an action, either by the person asserting a
prescriptive right, or by the person against whom the statute of limitations is running, will
interrupt the running of the prescriptive period, and the statute will be tolled while the

                                               3
action is actively pending. [Citations.] On the other hand, however, an action that has
been dismissed or abandoned does not interrupt the running of the prescriptive period.
[Citations.]” (See also Welsher v. Glickman (1969) 272 Cal.App.2d 134, 138; 12 Witkin,
Summary of Cal. Law, supra, Real Property, § 401, pp. 469-470.) Yorba might stand for
the proposition that litigation that is not dismissed or abandoned tolls the five year
limitations period for adverse possession. It does not, however, address specifically if
there are other litigation circumstances that would not toll that five-year limitations
period. Moreover, as noted in Dong Chun Len v. Luke Kow Lee, supra, 7 Cal.App.2d at
page 196 [cited with approval in Yorba, supra, 41 Cal.2d at page 276], Yorba was a
prescriptive easement to the use of water case, which might be different than adverse
possession of real property in this connection. McKenna v. Elliott & Horne Co. (1953)
118 Cal.App.2d 551 was decided, in effect, by the doctrine of res judicata. (See Witkin,
Cal. Procedure (5th ed. 2008) Pleading, § 1005, p. 414.)
       Addressing that issue, the court in California Maryland Funding, Inc. v. Lowes,
supra, 37 Cal.App.4th at p. 1804 said there was an exception to the rule that litigation
tolls the period if an unsuccessful action leads to no change of possession. The court did
not limit the exception to dismissals or abandonments, but said, “this is true whether the
action is prosecuted to judgment . . . .” (Ibid.) The court cited Dong Chun Len v. Luke
Kow Lee, supra, 7 Cal.App.2d at pp. 196-197, which said, “In 2 C.J. 109 the rule is stated
as follows: ‘While it is the rule in some jurisdictions that the mere bringing of suit against
the adverse clamant breaks the continuity of possession, the decided weight of authority
is that an unsuccessful action leading to no change of possession does not arrest the
running of the statute of limitations, and this is true whether the action is prosecuted to
judgment or compromised, or whether the suit is voluntarily abandoned or dismissed for
want of prosecution.’ . . . We think it is clear that the foregoing cases show the rule
obtaining in this state is the same as that delineated in 2 C. J. 109, as quoted above.” (See
54A Cal.Jur.3d (2008) Real Estate, § 855.)
       There is likewise a lack of uniformity of the rule in other jurisdictions. One
authority wrote, “One of the perplexing questions which has frequently been the subject

                                              4
of judicial inquiry is the determination of the stage the landowner’s action must reach
before there is a break in the continuity of the adverse possession.” (Taylor, Continuity
in Adverse Possession of Land (1942) 27 Iowa L.Rev. 396, 405 (Taylor).) Tiffany on
Real Property provides, “The bringing of an action by the true owner to recover the
possession, if followed both by a judgment in his favor and the recovery of possession
thereunder, interrupts the running of the statute, and such interruption occurs, it has been
decided at the time of the bringing of the action. Where the decree in a proceeding to
register the title to land relates back to the date of the petition, the filing of the petition
has been held to interrupt the running of the statute. The bringing of an action, however,
which results unsuccessfully to plaintiff, does not interrupt it. And abandonment of the
suit, it has been said, will have the same effect as if it had never been instituted. [¶]
There are a number of decisions to the effect that even though a judgment is rendered for
plaintiff in an action to recover possession, the statute does not cease to run unless there
is a change of possession in accordance with the judgment, while there are other
decisions to the contrary. In some of the earlier cases dealing with this subject, the
asserted ineffectiveness of a judgment, now followed by a change of possession, was
based upon the consideration that a judgment in ejectment decided only that the plaintiff
was entitled to possession during the term named in the fictitious demise, and was
consequently not conclusive as to the title generally, but this consideration has ceased to
be effective with the change in the nature of the action. And the view that a change of
possession is necessary can be based only on the theory that, in the absence of a change
of possession, the running of the statute is not interrupted unless the possession loses its
hostile character, and that it does not lose such character merely as a result of the
rendition of a judgment in favor of the rightful owner. It is said on the other hand, that
the judgment does have the effect of depriving the possession of its adverse character, for
the reason that it estops the defendant therein from asserting that he holds under claim of
title. But conceding that a holding under claim of title is necessary to put the statute in
motion, it is by no means clear that a judgment in ejectment against the wrongful
possessor should properly estop him from the asserting of such a holding. It estops him

                                                5
from asserting title in subsequent litigation, but he is at liberty, it should seem, after the
rendition of the judgment, as before, to assert in conversation or otherwise, that he claims
title to the property, and having made such assertion, to show, in subsequent litigation,
that he did so. The bringing of an action by the true owner to assert his rights, followed
by the recovery of the judgment by him, without any actual change of possession, might,
it is submitted, be regarded as effective to stop the running of the statute against him, for
the reason that in that way he has asserted, in the most conclusive manner possible, his
rights in the land. While his failure to assert his rights by either action or entry involves
laches on his part, it does not seem that he should be regarded as guilty of laches, and
made to suffer accordingly, because, after asserting his rights by an action brought to a
successful conclusion, he fails to follow this up by an entry on the land. He has a right to
assume, after judgment in his favor, and in the absence of anything to show the contrary,
that defendant, in retaining possession, is doing so in his behalf, that is, in accord with the
adjudication.” (4 Tiffany, Real Property (3d ed. 2013) § 1161, fns. omitted.)
       Similarly, an authority has acknowledged that some courts hold “that a judgment
for the title owner in his action of ejectment against the adverse possessor does not, of
itself, arrest the operation of limitation acts, and that if the adverse possessor retains his
possession, nothing else being done, the statute will continue running against the owner’s
title.” (Taylor, supra, 27 Iowa L.Rev. 408.) But he also concludes that although “there
may be sound reasons for holding that a mere judgment in an action of ejectment or other
purely possessory action will not break the running of limitation acts in favor of the
adverse possessor, no sound reason has yet been adduced for such holding as to a
judgment in a proceeding which determines with finality that the adverse claimant has
not, and that the dispossessed plaintiff has, title to the land.” (Id. at p. 409.)
       That authority discussed two cases1 pointing out that the nature and results of the
litigation can be determinative. “In both of these cases, the prior proceeding was an


1
      Rosenstihl v. Cherry (Ohio 1926) 151 N.E. 642, Bessler v. Powder River Gold
Dredging Co. (Ore. 1919) 178 Pac. 237.

                                                6
action to quiet title. In both, there had been a final judgment against the adverse
possessor. In neither had the adverse possessor given up possession or the dispossessed
owner sought to take possession. Both cases held that the final judgment in the prior case
had not arrested the operation of the limitation act in favor of the adverse possessor. In
the Oregon case, the adverse possessor and not the title owner was the plaintiff. The
judgment was merely that the case be dismissed. ‘The former case did not undertake to
do anything about the possession . . . . The case therefore is not so strong as where the
judgment has been rendered directly adjudicating the possession of the land and awarding
it to one or the other.’ In the Ohio case, the land involved was an eighteen-inch strip
along the disputed boundary. The petition therein failed ‘to make any averments with
reference to the strip of land in dispute in the case at bar.’” (Taylor, supra, 27 Iowa
L.Rev. at p. 410.) As in those cases, here there was no effort in the litigation to regain
possession and the right of possession was not the issue or adjudicated.
       Other authorities have been more cryptic on the subject. Thus, Thompson on Real
Property does say, “[t]he filing of a quiet title action by an adverse possessor does not
interrupt the running of the possession.” (10 Thompson on Real Property (3d ed. 2013)
§ 87.14, p. 192.) It added, “The bringing of a suit within the prescriptive period
interrupts an adverse holding if followed by a judgment and recovery of possession
thereunder by the plaintiff. . . . Where the action results unsuccessfully to the plaintiff,
there is no interruption of the adverse holding.” (Id. at § 87.14, pp. 190-191, italics
added.) On the other hand, Powell on Real Property states that “the institution by the
possessor of an action to quiet title does not interrupt the continuity of possession unless
the owner’s attempt to deny the possessor’s title is successful.” (16 Powell on Real
Property (2013 ed.) § 91.07[2], p. 91-46.) Unlike most of the examples referred to by the
authorities, here, the prior action was brought by the person in possession not the owner.2


2
       Burby, Real Property (3d. ed. 1965) § 112, p. 274, fns. omitted, italics added
[“The institution of an action against an adverse claimant to recover possession of the
land or to determine ownership merely suspends the operation of the statute during the
time of such proceedings”].

                                              7
       From a public policy and practical standpoint, unless there is a change of
possession, any prior litigation should not toll the running of the five year period. If the
possessor stays on the property notwithstanding litigation involving her right to be on the
property, her presence is adverse and hostile. Only if there is a change in possession
arising out of the litigation should tolling take place because that would be a new
circumstance. Otherwise, the possessor continues the adverse possession, including, as
here, the payment by the possessor of the real estate taxes. Indeed, the existence of
litigation or a judgment determining the right to possession or ownership renders
continuous possession adverse. The owner can stop the adverse possession by bringing
an unlawful detainer action or ejectment action to effect a change of possession. Here, in
the prior action, the owner did not even seek to regain possession or quiet title.
       It is true that sometimes an unlawful detainer action will be stayed pending the
outcome of a quiet title action based on adverse possession. But the issue here is whether
that quiet title action tolls the five-year period. As soon as that action is determined, if
the owner’s rights are vindicated, he, she, or it can take immediate steps to regain
possession of the property. And if the period of the quiet title litigation approaches five
years, the owner may still take steps to regain possession.
       The earlier litigation, a quiet title action, was commenced by the possessor, the
plaintiff here. Ultimately, she was not successful because prior to 2006, plaintiff’s
possession was not adverse. But the matter was remanded to the trial court “to determine
what further proceedings should occur.” The record does not establish that there was any
determination that defendants had title or were entitled to possession. In the prior action,
no defendant sought or obtained any change of possession. A defendant did bring an
unlawful detainer action. That was dismissed without prejudice on July 21, 2009, and
resulted in no change of possession. (See Langford v. Poppe, supra, 56 Cal. at p. 76.)
So, even if, as some authorities suggest, a conclusive judgment in favor of the owner’s
title in the property tolls the period of limitation that would be of no benefit to defendants
here because the record does not reflect any such judgment.



                                               8
       Defendants’ assertion that plaintiff’s stipulation to the dismissal of the unlawful
detainer action somehow estops plaintiff from contending that there was no tolling of the
five-year period lacks merit. None of the requirements for judicial or equitable estoppel
has been established by the demurrer. (See Blix Street Records, Inc. v Cassidy (2010)
191 Cal.App.4th 39, 46-47 [judicial estoppel precludes party from taking inconsistent
positions on separate judicial proceedings and can be based on findings of fact];
Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 249, fn. 7 [equitable estoppel
“rests on the theory that the party to be estopped may not prove certain facts if he has by
his conduct or declarations misled another to his prejudice”].) Neither the complaint nor
matters judicially noticed contain any indication of inconsistent positions by plaintiff or
that defendants were misled by plaintiff.
       Plaintiff’s claim is based on a period of time not litigated in the earlier action so
that res judicata does not bar the claim. (See McKenna v. Elliott & Horne Co. supra, 118
Cal.App.2d at p. 554 (second action barred by res judicata.) In any event, defendants did
not raise the defense of res judicata. (5 Witkin Cal. Procedure (5th ed. 2008) Pleadings, §
1127, p. 555.)
       The trial court erred in sustaining the demurrer. Even if defendants can attempt to
show that under the peculiar circumstances of this case, the five-year period did not
mature, that cannot be resolved at the pleadings stage. I believe the judgment should be
reversed.




                                            MOSK, J.




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