Filed 12/7/15 Humphrey v. Johnson CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



DOUGLAS HUMPHREY,

         Plaintiff and Appellant,                                        E060462

v.                                                                       (Super.Ct.No. INC1207805)

RICHARD L. JOHNSON,                                                      OPINION

         Defendant and Respondent.




         APPEAL from the Superior Court of Riverside County. John G. Evans, Judge.

Affirmed.

         Christopher Kelley; Aron C. Movroydis; and Matthew DeArmey for Plaintiff and

Appellant.

         Allione & Associates and Paul R. Allione for Defendant and Respondent.

                                               I. INTRODUCTION

         Plaintiff and appellant, Douglas Humphrey, appeals from a judgment of dismissal

following the trial court’s sustaining of the demurrer of defendant and respondent,



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Richard L. Johnson, as to plaintiff’s first amended complaint for quiet title, partition, and

declaratory relief. Although plaintiff raises arguments under several headings, all of his

arguments are based on the position that a stipulation attached to his first amended

complaint should be taken as true and the allegations of the first amended complaint

should be deemed sufficient. Plaintiff also claims Johnson lacks standing to challenge

plaintiff’s title to the property because Johnson had no interest in the property, and

Johnson’s only connection to the property was to improperly change the property tax

billing address to that of his agent and pay property taxes on the property through his

agent.

         Johnson contends, among other things, that the judgment was by consent and was

therefore not appealable, and that we may disregard contrary allegations in prior

pleadings and judicially noticeable matters when reviewing the trial court’s ruling on the

demurrer, including prior allegations which establish that the statute of limitations had

run. We find no error and affirm the judgment of dismissal.

                     II. FACTS AND PROCEDURAL BACKGROUND

A. Plaintiff’s Original Complaint

         On November 6, 2012, plaintiff filed a verified complaint to quiet title to real

property in the City of Rancho Mirage, naming as defendants the testate and intestate

successors of Val Jay Janelunas (Val) and Joseph C. Janelunas (Joseph), both deceased,

all persons claiming by, through, or under Val and Joseph, and any persons claiming any

right to the real property. Plaintiff alleged that title to the property was in the names of


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Val and Joseph, and plaintiff claimed ownership in the property “by way of abandonment

and as an equitable remedy as an heir” to the estate of his deceased wife, Diana Janelunas

(Diana), Joseph’s daughter and Val’s sister. Plaintiff alleged that Diana had paid the

property taxes on the property from 1986 through 1999, when she died, and that

“[p]laintiff also paid property taxes after 1999 when he received the opportunity.” He

alleged that he had “claim to title being the successor of the individual who paid the taxes

on property taxes [sic] for over 13 years and for preventing the property from going to

auction for those years. Any adverse possession claim which Diana . . . had, passed to

Plaintiff, who was the sole heir of her estate.”

       Plaintiff alleged, in the alternative, that Joseph and Val had severed their joint

tenancy before their deaths. He alleged that Val had abandoned his interests, and Joseph

“would have intended the property to go to Diana . . . or her estate as Val . . . had no

issue. Val . . . should have intended the property to go to Diana . . . and her heirs because

of the significant capital contributions by Diana . . . , and Plaintiff and a desire to keep the

property in the family.” The original defendants filed a general demurrer and a motion to

strike the complaint. The trial court sustained the demurrer, finding that plaintiff “has not

adequately plead [sic] adverse possession and fails to adequately allege abandonment and

severance of the joint tenancy.” The trial court granted plaintiff 30 days’ leave to amend.

B. Plaintiff’s Verified First Amended Complaint

       On September 5, 2013, plaintiff filed a verified first amended complaint in which

he named Johnson as a defendant and added as defendants Jana Watson, Gail Ann


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Watson Devault, and Thomas Terry Watson (referred to collectively as the Janelunas

heirs). Plaintiff alleged that Val and Joseph had acquired the property as joint tenants;

Joseph died in September 1986, survived by his two children, Val and Diana, plaintiff’s

deceased wife. Diana died in 1999. Val died on August 24, 2002, and at the time of his

death, he was the owner of the property in fee simple.

       Plaintiff alleged on information and belief that Val had died intestate, that he had

never married, and that he had no children. When he died, Val’s parents, sister Diana,

aunts, and uncles were all deceased. The Janelunas heirs, the children of Joseph’s sister,

were the only locatable living heirs.

       In his cause of action for quiet title, plaintiff alleged that the Janelunas heirs were

the only individuals who asserted any claims against the property. Plaintiff alleged: “In

June of 2013, for valuable consideration, Plaintiff entered in to [sic] a joint stipulation

with the Janelunas Heirs, whereby the Janelunas Heirs confirmed eighty-five percent

(85%) interest in the Property to Plaintiff. The stipulation confirmed that [plaintiff] and

the Janelunas Heirs are the only owners of the fee simple title to the Subject Property and

that no other person or entities have any legal, equitable right to any title or interest in the

Subject Property.” Plaintiff attached as an exhibit a document titled “Stipulation for

entry of interlocutory order of partition between [plaintiff] and [the Janelunas heirs]”

(hereafter referred to as the stipulation).

       Along with the other defendants, plaintiff named Johnson as a defendant in his

first and second causes of action for quiet title and partition, and named Johnson as the


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only defendant in his third cause of action for declaratory relief. In his declaratory relief

cause of action, plaintiff alleged he owned an 85 percent fee simple interest in the

property, but Johnson disputed this contention and claimed he had an interest in the

property. Plaintiff sought a judicial declaration that Johnson had no interest in the

property.

        Johnson generally demurred to each cause of action alleged in the verified first

amended complaint on the grounds plaintiff lacked standing, the claims were barred by

prior judgments and precluded by collateral estoppel, and the complaint otherwise failed

to state a cause of action. In his demurrer, Johnson pointed out that a complaint for quiet

title must be verified (Code Civ. Proc., § 761.020) and the stipulation, which was

attached to the verified first amended complaint as an exhibit but not incorporated into it,

was not verified. Johnson concurrently filed a motion to strike the entire complaint.

(Code Civ. Proc., §§ 435, 436.)

        The trial court sustained the demurrer, ruling: “[P]laintiff does not have standing

to bring a quiet title action because from the face of his pleadings he is not an interstate

[sic] heir of Val Jay Janelunas and [the stipulation] is of no legal significance and does

not confer standing upon plaintiff.” The trial court granted 30 days’ leave to amend, but

plaintiff elected not to amend, and judgment was entered against him on December 13,

2013.




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                                      III. DISCUSSION

A. Request for Judicial Notice

        On March 19, 2015, plaintiff filed a request for this court to take judicial notice of

the death certificate of Val issued in the Netherlands. Defendant moved to strike the

request. Plaintiff filed a supplemental request to which was attached the declaration of

the translator of the death certificate stating: “I . . . hereby certify that the [death

certificate] is, to the best of my knowledge and belief, a true and accurate translation

from Dutch to English.” The declaration was sworn to before a notary public in New

York.

        We reserved ruling on the request and motion to strike for consideration with the

merits of the appeal. The request is denied. “Out-of-state declarations that do not state

they were made ‘under penalty of perjury . . . under the laws of the State of California’

(Code Civ. Proc., § 2015.5) are not deemed sufficiently reliable to be admitted into

evidence. [Citation.]” (Bombardier Recreational Products, Inc. v. Dow Chemical

Canada ULC (2013) 216 Cal.App.4th 591, 604.) Moreover, the content of the document

is not useful to the resolution of any issue on this appeal.

B. Appealability of the Judgment

        Johnson contends that the judgment was by consent and was therefore

nonappealable.




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       1. Additional Background

       The trial court granted defendant’s demurrer to the first amended complaint and

also granted plaintiff 30 days to amend. Plaintiff did not file an amended complaint, but

instead submitted a proposed final judgment after demurrer, which stated on its face:

“Plaintiff has elected not to amend its complaint and requested that this Court enter

judgment forthwith.” The trial court signed and filed the proposed judgment.

       2. Analysis

       Consent judgments are not ordinarily appealable. (Chavez v. Carpenter (2001) 91

Cal.App.4th 1433, 1438 [“As a general proposition, a party may not appeal a consent

judgment.”].) However, when a plaintiff fails or declines to amend the complaint

following the sustaining of a demurrer, the trial court will enter a judgment of dismissal

from which an appeal may be taken to review the correctness of the ruling on the

demurrer. (See Jeffers v. Screen Extras Guild, Inc. (1951) 107 Cal.App.2d 253, 254.)

Following the sustaining of a demurrer, the plaintiff may request entry of judgment to

expedite the appeal. (See, e.g., Border Business Park, Inc. v. City of San Diego (2006)

142 Cal.App.4th 1538, 1565 [Fourth Dist., Div. Two]; ABF Capital Corp. v. Grove

Properties Co. (2005) 126 Cal.App.4th 204, 212-213 [Fourth Dist., Div. Two].)

       Johnson cites Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 789-790

for the proposition that a plaintiff may not voluntarily dismiss its action without prejudice

under Code of Civil Procedure section 581, subdivision (f)(2) after a demurrer is

sustained with leave to amend. That case is inapposite. Plaintiff did not move to dismiss


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his action without prejudice; he requested entry of judgment and then took his appeal

from the judgment of dismissal after an order sustaining a demurrer. We therefore

conclude the judgment was appealable.

C. Johnson’s Standing

       Plaintiff claims Johnson lacks standing to challenge plaintiff’s title to the property

because Johnson had no interest in the property, and the “minor property tax payments”

that Johnson made on the property after Johnson improperly and “falsely” changed the

property tax billing statement address to that of his agent, without the permission of the

property’s “rightful owners,” does not “confer on Johnson standing in connection with

the property.” Plaintiff points out that in his demurrer reply, Johnson stated: “While it is

completely irrelevant for purposes of demurrer, to satisfy any curiosity the court might

have, Mr. Witte was Defendant Johnson’s agent who made payments on behalf of

Johnson and performed other administrative acts for this and other ventures.”

       The purpose of a general demurrer is to determine the sufficiency of the plaintiff’s

pleading. (Code Civ. Proc., § 430.10, subd. (e).) In his first amended complaint, plaintiff

added Johnson as a named defendant. Plaintiff alleged that Johnson claimed an interest

in the property and sought a judicial declaration that Johnson had no interest in the

property.

       Code of Civil Procedure section 762.010 requires the plaintiff in a quite title action

to “name as defendants in the action the persons having adverse claims to the title of the

plaintiff against which a determination is sought.” In order to have standing to sue any


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person to quiet title to property, the plaintiff must have an interest in the property. (Chao

Fu, Inc. v. Chen (2012) 206 Cal.App.4th 48, 58-59.) Whether the defendant’s adverse

claim has merit is what the quiet title action seeks to determine. Indeed, in his first

amended complaint, plaintiff alleged that Johnson had an adverse claim to the property

but no interest in the property, and sought a judicial determination that Johnson had no

interest in the property. Plaintiff’s claim that Johnson lacks standing to challenge

plaintiff’s title to the property, because Johnson has no interest in the property, does not

defeat Johnson’s claim that the complaint fails to state a cause of action.

D. Contrary Allegations in Prior Pleadings

       Johnson claims we may consider contrary allegations in plaintiff’s original

complaint and judicially noticeable matters in reviewing the trial court’s ruling on his

demurrer, including prior allegations establishing that the statute of limitations had run on

plaintiff’s claims.

       1. Additional Background

       As recounted above, in his original complaint plaintiff alleged that he claimed title

“by way of abandonment and as an equitable remedy as an heir to the Estate of Diana

Janelunas.” He further alleged he claimed title as “the successor of the individual who

paid the taxes on property taxes [sic] for over 13 years and for preventing the property

from going to auction for those years. Any adverse possession claim which Diana

Janelunas had, passed to Plaintiff, who was the sole heir of her estate.” He identified the

defendants as “‘All Persons Unknown, Claiming any Legal or Equitable Right, Title,


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Estate, Lien or Interest in the Property . . . adverse to Plaintiff’s title,’” and he alleged that

“[d]efendants have abandoned any interest in the property and have manifested no

intention to return to ownership in the property.” Plaintiff alleged: “The rights of the

dispossessed owners and their testate and intestate successors to recover the land are

time-barred and title to their estate is extinguished since the statute of limitations has run

and the right to dispossess Plaintiff has passed.”

       Then, in his later-filed first amended complaint, plaintiff alleged that at the time of

his death, Val owned the property in fee simple; that Val died intestate, unmarried, and

without children; and that the Janelunas heirs were Val’s intestate successors and the only

persons who asserted an interest in the property.

       2. Analysis

       “‘“Generally, after an amended pleading has been filed, courts will disregard the

original pleading. [Citation.] [¶] However, an exception to this rule is found . . . where

an amended complaint attempts to avoid defects set forth in a prior complaint by ignoring

them. The court may examine the prior complaint to ascertain whether the amended

complaint is merely a sham.” [Citation.] . . . Moreover, any inconsistencies with prior

pleadings must be explained; if the pleader fails to do so, the court may disregard the

inconsistent allegations. [Citation.] Accordingly, a court is “not bound to accept as true

allegations contrary to factual allegations in former pleading in the same case.”

[Citation.]’” (Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 343.)




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       Here, plaintiff originally pleaded that Joseph and Val had abandoned the property;

that plaintiff’s deceased wife Diana had acquired the property through adverse

possession; that plaintiff had succeeded to her rights; and that the rights of all other

persons were barred by the statute of limitations. “No action for the recovery of real

property, or for the recovery of the possession thereof, can be maintained, unless it

appear[s] 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.”

(Code Civ. Proc., § 318.) An action to quiet title is an action for the recovery of real

property within the meaning of Code of Civil Procedure section 318, and the plaintiff has

the burden of proof to show that he or his predecessor or grantor was seized or possessed

of the property within five years before the commencement of the action. (Haney v.

Kinevan (1946) 73 Cal.App.2d 343, 344; see also Safwenberg v. Marquez (1975) 50

Cal.App.3d 301, 311-312.)

       Having alleged in his original complaint that the claims of all other persons to the

property had been extinguished by abandonment or adverse possession and were time-

barred, plaintiff could not, without explanation, assert in his first amended complaint that

he had succeeded to the rights of the Janelunas heirs. (Larson v. UHS of Rancho Springs,

Inc., supra, 230 Cal.App.4th at p. 343.) We therefore conclude the trial court did not err

in sustaining defendant’s demurrer to the first amended complaint.

                                     IV. DISPOSITION

       The judgment is affirmed. Costs are awarded to respondent.


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     NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                               KING
                                                      J.


We concur:

RAMIREZ
                P. J.

HOLLENHORST
                   J.




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