Filed 8/12/16
                            CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                   STATE OF CALIFORNIA



SCOTT WALTERS, as Administrator, etc.,             D069255

        Plaintiff and Appellant,

        v.                                         (Super. Ct. No. 37-2013-00046965-
                                                   CU-UR-CTL)
VALERIE A. BOOSINGER,

        Defendant and Respondent.


        APPEAL from a judgment of the Superior Court of San Diego County,

Richard E. L. Strauss, Judge. Affirmed.

        Craig A. Sherman for Plaintiff and Appellant.

        Rosenberg, Shpall, & Zeigen, Tomas A. Shpall and Amy C. Lea for Defendant

and Respondent.

                                             I.

                                     INTRODUCTION

        The case involves a dispute over the ownership of certain real property (the

Property) between appellant Scott Walters (Scott), as the administrator of the estate of his

father, Randy Walters (Randy), and Randy's former girlfriend, respondent Valerie
Boosinger. A 2003 deed named Randy and Boosinger as owners in joint tenancy of the

Property. Upon Randy's death in 2013, Boosinger claimed sole ownership of the

Property as the surviving joint tenant.1 Scott brought a quiet title claim premised on the

theory that the grant deed was void ab initio. We reject Scott's claim on appeal that such

a claim may be brought "at any time." We conclude that the claim is subject to a statute

of limitation and that Scott has failed to demonstrate that the trial court erred in

concluding that his quiet title cause of action is time barred.

       Scott also contends that he properly stated a claim for quiet title premised on the

alternative theory that Randy and Boosinger severed their joint tenancy in the Property

prior to Randy's death. We conclude that Scott failed to sufficiently allege facts

demonstrating such severance and that he has not demonstrated that he could amend his

complaint to properly allege a severance of the joint tenancy. Accordingly, we conclude

that Scott has not properly stated a quiet title claim pursuant to this alternative theory.




1      "[T]he distinguishing characteristic of a joint tenancy is that each tenant has a
right of survivorship, by which, upon the death of the other tenant, the survivor will
automatically succeed to the entire property." (Dang v. Smith (2010) 190 Cal.App.4th
646, 660.)
                                               2
                                            II.

                  FACTUAL AND PROCEDURAL BACKGROUND

A. Proceedings related to Randy's original complaint2

       Randy filed the original complaint in this action against Boosinger in April 2013.

In his complaint, Randy brought a single cause of action for partition. Randy alleged that

he owned a 66.7 percent interest in the Property and that Boosinger owned a 33.3 percent

interest. Randy requested that the court require Boosinger to purchase Randy's interest in

the Property or conduct a forced sale of the Property in order to liquidate Randy's

interest.

       After Boosinger filed her initial answer to the complaint, Randy died. The trial

court thereafter granted Scott's motion to be substituted into the case as the named

plaintiff.

       Boosinger filed an amended answer and a cross-complaint. In her cross-

complaint, Boosinger alleged that the parties owned the Property as joint tenants pursuant

to a February 2003 deed, and that upon Randy's death, the Property passed to Boosinger

through her right of survivorship. Boosinger also filed a motion for judgment on the

pleadings. In a supporting brief, Boosinger argued that because Randy and Boosinger

owned the Property as joint tenants, the Property automatically transferred to Boosinger

pursuant to her right of survivorship upon Randy's death. Accordingly, Boosinger



2       We provide additional factual and procedural history of the proceedings related to
the original complaint in discussing Scott's contention that Randy and Boosinger severed
the joint tenancy, in III.B.2., ante.
                                             3
contended that Scott had no ownership interest in the Property upon which to bring a

partition claim. Boosinger also requested that the court take judicial notice of the 2003

grant deed reflecting Randy and Boosinger's ownership of the Property as joint tenants.

       The trial court granted Boosinger's request for judicial notice and her motion for

judgment on the pleadings, with leave to amend. In its order, the court stated that "[t]o

the extent [Scott] asserts that there was no joint tenancy and/or the joint tenancy was

severed, no such facts are alleged in the complaint." The court granted Scott leave to

amend the complaint in order "to allege facts supporting a right to relief with respect to

the . . . [Property]."

B. Scott's first amended complaint

       Scott filed a first amended complaint in which he brought claims for quiet title and

partition. In his quiet title cause of action, Scott alleged that Randy and Boosinger

purchased the Property as tenants in common in 1997, with Randy obtaining a 66.7

percent interest in the Property based upon his larger down payment and an agreement

with Boosinger.

       Scott acknowledged the existence of a 2003 grant deed for the Property that was

recorded as a result of Randy and Boosinger's decision to refinance a loan on the

Property. The 2003 deed, which Scott attached to his first amended complaint, grants

ownership of the Property from "[Randy], an Unmarried Man as to an undivided 2/3

interest, and [Boosinger], a Single Woman as to an Undivided 1/3 interest as tenants in

common," to "[Randy], an Unmarried Man and [Boosinger], a Single Woman as Joint

Tenants." (Italics added.)

                                             4
         Despite the language in the 2003 deed, Scott alleged that Randy and Boosinger

never owned the Property as joint tenants. In support of this allegation, Scott alleged that

Randy never intended to create a joint tenancy with Boosinger. In addition, Scott alleged

that Boosinger's friend, Susan O'Connor, who served as the broker's representative in

connection with the 2003 refinancing, "breached her duty to Randy . . . because [she]

knew, or should have known, that Randy . . . was chemically dependent and an alcoholic

during the 2003 refinancing process." Scott alleged that O'Connor failed to ensure that

Randy understood the nature of the documents that he signed in connection with the

refinance. Scott contended that Randy had not intended to create the joint tenancy and

that the "purported conveyance of ownership and transfer into a joint tenancy [was]

void."

         Alternatively, as discussed in greater detail in part III.B., post, Scott alleged that, if

the joint tenancy had been created, Randy unilaterally severed the joint tenancy by way

of the filing of the original complaint in this action, or that Randy and Boosinger jointly

severed the joint tenancy through the combined operation of Randy's filing of the initial

complaint and Boosinger's filing of an answer.

         Scott further alleged that, upon Randy's death, Randy's two-thirds interest in the

Property had passed to Randy's estate to be probated by Scott as the administrator of

Randy's estate.

         In his partition cause of action, Scott requested that Boosinger either purchase

Scott's two-third's interest in the Property or that a forced sale of the Property be held

such that Scott's interest would be liquidated.

                                                 5
C. Boosinger's demurrer to the first amended complaint

       Boosinger demurred to both claims in the first amended complaint. In a

supporting brief, with respect to Scott's claim for quiet title, Boosinger argued that any

claim that the joint tenancy was void was barred by the statute of limitations. In support

of this contention, Boosinger argued that Scott's claim was premised on "[Randy's]

mistake or fraud in getting him to sign a grant deed conveying the Property to himself

and Boosinger as Joint Tenants," and thus, the three-year statute of limitations contained

in section 338, subdivision (d) applied to Scott's claim. (See Code Civ. Proc., § 338,

subd. (d) [providing a three-year statute of limitation for "[a]n action for relief on the

ground of fraud or mistake"].) Boosinger contended that Scott's cause of action had

accrued no later than April 2007 when judicially noticeable documents demonstrated that

Randy had actual notice "that Boosinger claimed half of the Property as joint owner, a

fact which [Randy] disputed."3 (See ibid. ["The cause of action in that case is not

deemed to have accrued until the discovery, by the aggrieved party, of the facts

constituting the fraud or mistake"].) Boosinger claimed that the statute barred Scott's

quiet title claim premised on the theory that the 2003 deed was void because the claim

had not been brought prior to April 2010.

       Boosinger also argued that Scott had not adequately stated a quiet title claim

premised on the theory that the joint tenancy had been severed by virtue of the parties'



3      Boosinger requested that the trial court take judicial notice of the documents,
which had been filed in connection with Boosinger's request for a temporary restraining
order against Randy.
                                               6
filing of the pleadings in the action. Finally, Boosinger maintained that Scott could not

properly state a cause of action for partition because he had no interest in the Property.

D. Scott's opposition

        Scott filed an opposition brief in which he argued, among other contentions, that

the 2003 grant deed was void ab initio and that "[a] three[-]year statute of limitations

does not apply." Scott argued, in the alternative, that the parties had jointly severed any

joint tenancy through the filing of their pleadings in this case.

E. The trial court's ruling on the demurrer

        After further briefing and a hearing, the trial court sustained Boosinger's demurrer

to Scott's quiet title cause of action on the ground that the claim is barred by the three-

year statute of limitations in Code of Civil Procedure section 338. The court reasoned in

part:

           "In this case, the theory of relief sought by [Scott], despite his
           protestations, is fraud. Therefore, the three[-]year statute of
           limitations set forth in [Code of Civil Procedure section] 338
           [applies]. [Citation.] [Scott] alleges his father was defrauded into
           signing a grant deed naming the owners as joint tenants instead of
           tenants in common. [Citation.] However, [Randy] became aware
           [Boosinger] was claiming a joint interest in the [P]roperty as of
           2007. Based upon [Boosinger's] request for a domestic violence
           TRO and [Randy's] response, it is clear [Randy] was aware
           [Boosinger] was claiming an equal and joint interest in the
           [P]roperty. [Citation.] Since [Randy] was aware in 2003[4] of
           [Boosinger's] adverse claim arising from alleged fraud, the



4      The court's order states 2003, the year the grant deed naming Randy and
Boosinger as joint tenants was executed. It is unclear whether the court intended to refer
to 2003, or rather to 2007, the year of the proceedings related to the temporary restraining
order.
                                              7
           three[-]year statute of limitations applies. Further, since [Scott]
           failed to file his complaint within the three-year period, the statute of
           limitations bars his claim."

       The trial court also sustained Boosinger's demurrer to Scott's cause of action for

partition on the ground that Scott had no interest in the Property after the death of Randy.

In its order, the trial court granted all of the parties' requests for judicial notice.

       Thereafter, the court entered a written order sustaining the demurrer to the first

amended complaint without leave to amend and dismissing the complaint.

F. The appeal

       Scott timely appeals from the order of dismissal.5

                                               III.

                                         DISCUSSION

A. The trial court did not err in concluding that Scott's quiet title claim is time barred
   insofar as the claim is premised on the theory that the 2003 grant deed is void
   ab initio

       Scott claims that the trial court erred in determining that his quiet title claim is

time barred. In support of this claim, Scott contends that a quiet title claim based on the




5       Ordinarily, an "order dismissing a complaint with prejudice constitutes an
appealable judgment." (See City of Morgan Hill v. Bay Area Air Quality Management
Dist. (2004) 118 Cal.App.4th 861, 867.) While this appeal was pending, in response to
this court's inquiries as to the appealability of the judgment in light of the still pending
cross-complaint, Boosinger dismissed her cross-complaint without prejudice and the
parties informed us that the dismissal was not accompanied by any agreement between
the parties regarding future litigation. We thereafter sent a letter to counsel indicating
that Boosinger's dismissal and the accompanying representations created sufficiently
finality to render the judgment appealable. (See Kurwa v. Kislinger (2013) 57 Cal.4th
1097, 1105.)
                                                8
theory that a deed is void ab initio is not subject to any statute of limitation and that "an

action thereon can be brought at any time." (Italics added.)

       Scott's claim raises a question of law that we review de novo. (See McLeod v.

Vista Unified School Dist. (2008) 158 Cal.App.4th 1156, 1164 ["The determination of the

statute of limitations applicable to a cause of action is a question of law we review

independently"].)

       In Salazar v. Thomas (2015) 236 Cal.App.4th 467, at pages 476-477, the court

outlined the following general principles of law that govern the determination of the

statute of limitations for a quiet title action:

           "The Legislature has not established a specific statute of limitations
           for actions to quiet title. [Citation.] Therefore, courts refer to the
           underlying theory of relief to determine the applicable period of
           limitations. [Citations.] An inquiry into the underlying theory
           requires the court to identify the nature (i.e., the 'gravamen') of the
           cause of action. [Citation.] [¶] Generally, the most likely time
           limits for a quiet title action are the five-year limitations period for
           adverse possession,[6] the four-year limitations period for the
           cancellation of an instrument, or the three-year limitations period for
           claims based on fraud and mistake." (Fns. omitted.)

       Courts have also concluded that an action to cancel a deed on the ground that the

deed is void is subject to a statute of limitations. In Robertson v. Superior Court (2001)

90 Cal.App.4th 1319 (Robertson), the court considered the validity of a decision,

Hironymous v. Hiatt (1921) 52 Cal.App. 727, 736 (Hiatt), in which the court stated that

" 'an action to cancel a wholly void instrument can be brought at any time.' " (Robertson,

supra, at p. 1324, quoting Hiatt, supra, at p. 736.) The Robertson court concluded that


6      It is undisputed that this case does not involve adverse possession.
                                                   9
"[t]he Hiatt court's view of things is especially inappropriate when applied, as here, to

actions involving the title to or possession of real property." (Robertson, at p. 1327.)

       In Robertson, the plaintiff filed a first amended complaint in 2000 requesting that

the court declare void, pursuant to Civil Code section 3412,7 a 1949 quitclaim deed

executed by his mother, on the ground that she was mentally incompetent at the time she

executed the deed. (Robertson, supra, 90 Cal.App.4th at p. 1321.)8 The defendant

demurred to the claim on the ground that the statute of limitations barred plaintiff's claim.

(Ibid.) The trial court overruled the defendant's demurrer, ruling that an action to "cancel

'a wholly void instrument can be brought at any time,' i.e., is not subject to any statute of

limitations." (Ibid.) The Robertson court granted the defendant's petition for writ of

mandate and directed the trial court to vacate its order overruling the demurrer and to

enter an order sustaining the demurrer. (Id. at p. 1329.)

       The Robertson court concluded that the Hiatt court was "flatly wrong" (Robertson,

supra, 90 Cal.App.4th at p. 1326) in concluding that there was no applicable statute of

limitations to an action to cancel an instrument as being "wholly void." (Robertson,

supra, at p. 1324.) The Robertson court reasoned:




7       Unless otherwise specified, all subsequent statutory references are to the Civil
Code.
        Section 3412 provides, "A written instrument, in respect to which there is a
reasonable apprehension that if left outstanding it may cause serious injury to a person
against whom it is void or voidable, may, upon his application, be so adjudged, and
ordered to be delivered up or canceled."
8       The Robertson court noted that it was not clear from the record when plaintiff had
filed the original complaint. (Robertson, supra, 90 Cal.App.4th at p. 1321.)
                                             10
          "In Moss v. Moss (1942) 20 Cal.2d 640 (Moss), the plaintiff sued for
          a declaratory judgment that a decade-old property settlement
          agreement between him and his former wife, along with a later
          modification of it, were void as against public policy (because
          conditioned upon an agreement to secure a divorce). The trial court
          denied relief, principally upon the ground that the plaintiff was in
          pari delicto and the Supreme Court found no abuse of discretion in
          that ruling. But the plaintiff also argued on appeal that 'the
          complaint also alleges facts stating a cause of action for cancellation
          of the agreement.' (Id. at p. 644.) As to this claim, however, our
          Supreme Court held that the four-year limitations period of section
          343 of the Code of Civil Procedure applied.[9] Citing a broad range
          of cases, including actions to set aside a deed made under undue
          influence, a proceeding to set aside a satisfaction of judgment, and
          actions to set aside void bonds, the court concluded: 'Although
          plaintiff contends that laches and lapse of time cannot be defenses in
          an action to cancel an instrument void because contrary to public
          policy . . . equitable factors . . . may not be used as a means of
          avoiding the express mandate of the statute of limitations. We must
          hold, therefore, that if plaintiff had a cause of action for cancellation,
          it is now barred by section 343 . . . .' (20 Cal.2d at p. 645.)"
          (Robertson, at p. 1325, fn. omitted.)

      The Roberston court noted that numerous courts had reached similar results:

          "Three years after Moss was decided, Division One of this district
          relied on it in an action expressly brought under Civil Code section
          3412, ruling: 'Ordinarily a suit to set aside and cancel a void
          instrument is governed by section 343 of the Code of Civil
          Procedure.' (Zakaessian v. Zakaessian (1945) 70 Cal.App.2d 721,
          725 (Zakaessian); see also, to the same effect, Trubody v. Trubody
          (1902) 137 Cal. 172, 173; Wade v. Busby (1944) 66 Cal.App.2d 700,
          702; Estate of Pieper (1964) 224 Cal.App.2d 670, 688-689; cf.
          Leeper v. Beltrami (1959) 53 Cal.2d 195, 212-213.) The only
          exception to this rule, the Zakaessian court indicated, would be as
          and when fraud or mistake were involved, in which case the three-
          year period of [former Code of Civil Procedure] section 338,
          subdivision (4) would apply. (Zakaessian, supra, 70 Cal.App.2d at


9      Code of Civil Procedure section 343 provides, "An action for relief not
hereinbefore provided for must be commenced within four years after the cause of action
shall have accrued."
                                             11
           p. 725.)[10] In short, if there were ever any merit to the position that
           there is no limitations period for actions brought under Civil Code
           section 3412 to declare an instrument void, post-Moss and
           Zakaessian there certainly is none." (Robertson, supra, 90
           Cal.App.4th at pp. 1325-1327; accord Marin Healthcare Dist. v.
           Sutter Health (2002) 103 Cal.App.4th 861, 879 [citing Zakaessian,
           among other cases, and stating, "Nor does the fact that the contracts
           are claimed void avoid the statute of limitations. Actions to void
           contracts are nonetheless subject to the statute of limitations"].)

       Scott does not cite Robertson, nor any of the case law that it addresses, in his brief.

Scott does cite Costa Serena Owners Coalition v. Costa Serena Architectural Com.

(2009) 175 Cal.App.4th 1175 (Costa Serena) and Erickson v. Bohne (1955) 130

Cal.App.2d 553 (Erickson), in support of his contention that a quiet title claim based on

the theory that a deed is void ab initio is not subject to any statute of limitation. For the

reasons discussed below, we conclude that the portions of Costa Serena and Erickson on

which Scott relies constitute dicta that should not be followed.

       In Costa Serena, this court considered whether a party's challenge to certain

amendments to the declarations of restrictions governing a real estate development were

timely. (Costa Serena, supra, 175 Cal.App.4th at pp. 1191-1197.) In discussing the

distinction between instruments that were void ab initio and those that were merely

voidable, we quoted the following passage from Erickson, supra, 130 Cal.App.2d at

p. 556:

           " ' "[T]he courts distinguish between those cases in which a
           purported instrument never had any legal inception or existence—
           due to the fact that one party was induced to execute an agreement


10    Former Code of Civil Procedure section 338, subdivision (4) is now codified in
Code of Civil Procedure section 338, subdivision (d).
                                              12
            totally different from that which he apparently made, or where, due
            to the fraud, there was no execution at all—and those cases in which
            the agreement was induced by fraudulent misrepresentations or
            concealments which in no degree make the instrument anything
            other than it purports to be. In the first case it is clear that the
            purported agreement is void ab initio and an action to avoid it may
            be brought at any time, or it may be treated as nonexistent; while in
            the second case the agreement is voidable and may be rescinded at
            the election of the party defrauded . . . ." ' " (Costa Serena, supra, at
            p. 1193 (italics added), quoting Erickson, supra, at p. 556.)

However, it is clear that the italicized portion of the quotation in Costa Serena was dicta

because the Costa Serena court held that the amendments at issue in that case were

merely voidable, and that the party's claim was untimely. (Costa Serena, at pp. 1194-

1197.)

         Erickson, in turn, did not involve a statute of limitations question. Rather, in

Erickson, the court considered whether a plaintiff had stated a cause of action against a

third party purchaser of certain real property (Pierce) on the ground that a deed through

which Pierce obtained ownership of the property was void ab initio because the plaintiff

had not known that she was signing a deed to the property.11 (Erickson, supra, 130

Cal.App.2d at pp. 554-556.) The Erickson court cited a legal encyclopedia for the

proposition quoted in Costa Serena above, namely, that an action to cancel a legal

instrument premised on a claim that "one party was induced to execute an agreement




11      Whether the plaintiff had properly stated a cause of action against Pierce was in
turn relevant to the ultimate question raised on an appeal, i.e., whether the trial court had
erred in denying certain other defendants' motion for change of place of the trial.
(Erickson, supra, 130 Cal.App.2d at p. 555.)
                                               13
totally different from that which he apparently made" (id. at p. 556) is a claim that the

instrument is void ab initio, and may be brought at any time. (Ibid.)

       It appears that the source of the dicta in Costa Serena and Erickson is the

California Supreme Court's decision in Loftis v. Marshall (1901) 134 Cal. 394 (Loftis).12

In Loftis, the plaintiff brought a quiet title action against defendants claiming title to real

property through a deed that the plaintiff claimed had been obtained through the

"fraudulent procurement" of the plaintiff's wife, Mary Loftis, and her son, George

Marshall. (Id. at p. 395.) The plaintiff alleged that, at the time he signed the deed in

question, he was "in a drunken condition, and wholly incapacitated from attending to

business, and was induced to sign the deed by representations made to him by them that it

was a letter to one Horrigan, and by the belief to that effect thus engendered." (Ibid.)

The "principal question" on appeal was whether the plaintiff's action was barred by a

judgment in a former action. (Id. at p. 396.) However, the Loftis court also considered

whether the trial court erred in overruling the defendants' demurrer on the ground that the

action was untimely. In addressing this issue, the Loftis court stated the following:

           "It is alleged that the plaintiff, 'in pursuance of the . . . conspiracy
           and the . . . fraudulent and deceitful acts of . . . Mary Loftis and
           George D. Marshall, was kept in ignorance of the . . . grant (or deed)
           until the . . . day of October, 1894.' This, we think, was a sufficient
           allegation of the discovery of the fraud within three years before the
           commencement of the action.[13] . . . Nor do we think the allegation

12     Loftis is cited in the portion of the legal encyclopedia quoted in Erickson. (See
12 Cal.Jur. (1923) Fraud and Deceit, § 10, p. 722, fn. 6.)
13     The Loftis court did not state the basis for the three-year limitation period.
However, it appears that the court was likely referring to former Code of Civil Procedure
section 338. (See Marks v. Evans (1900) 62 P. 76, 78 [stating that former Code of Civil
                                               14
           was material. On the theory of the appellants—which we have
           assumed to be correct—the deed was void, and the plaintiff, except
           as against an adverse possession of five years, could maintain his
           action at any time." (Id. at p. 398, italics added.)

       The Loftis court did not cite any authority for the italicized statement, and did not

consider the four-year catch-all limitation provision Code of Civil Procedure, section

343, discussed above.14 (See fn. 9, ante.) In addition, no California published case has

ever cited this Loftis for this proposition.15 Further, as noted above, in 1942, the

California Supreme Court held in Moss that a party's claim that an instrument was void as

being contrary to public policy was subject to the four-year statute of limitations in Code

of Civil Procedure section 343. (Moss, supra, 20 Cal.2d at p. 645.) A claim that an

instrument is contrary to public policy constitutes a claim that the instrument is void

ab initio. (See Salton Bay Marina, Inc. v. Imperial Irrigation Dist. (1985) 172

Cal.App.3d 914, 941.) Thus, in Moss, the California Supreme Court concluded that a

claim premised on a contention that an instrument is void ab initio is subject to a statute

of limitation, contrary to its earlier statement in Loftis.

       Further, numerous cases in the wake of Moss, have reached results similar to that

in Moss. (See Robertson, supra, 90 Cal.App.4th at p. 1319 [collecting cases]; see also

Sullivan v. Dunnigan (1959) 171 Cal.App.2d 662, 667 [deed procured by fraud supported

Procedure section 338 "provid[ed] that an action for relief on the ground of fraud must be
commenced within three years after the discovery of the facts constituting such fraud"].)
14     Code of Civil Procedure section 343 was initially enacted in 1872.
15     In fact, despite the fact that Loftis was decided more than a century ago, it appears
that only one California case has ever cited Loftis for any proposition. (See Davidson v.
Baldwin (1906) 2 Cal.App. 733, 736 [citing Loftis for a proposition concerning agency
law].)
                                               15
by evidence that grantor had "no present intention to part with title to the interest

purportedly conveyed," was subject to three-year statute of limitations in former Code of

Civil Procedure section 338, subdivision (4)].) As the Robertson court noted, Moss and

its progeny, "make clear," that "statutes of limitations apply whether the document under

challenge is asserted to be 'void' or 'voidable.' " (Robertson, supra, at p. 1326, fn. 6,

italics added.) We agree with the Robertson court, and conclude that the Loftis court's

statement that a claim premised on the theory that a deed is void may be brought at any

time (Loftis, supra, 134 Cal. at p. 398) is an aberration that was implicitly overruled in

Moss. Thus, we conclude that Loftis and the dicta it spawned in Erickson and Costa

Serena should not be followed.

       Accordingly, we reject Scott's contention that a quiet title claim based on the

theory that a deed is void ab initio is not subject to any statute of limitation and "can be

brought at any time." (Italics added.) We therefore conclude that Scott has not

demonstrated that the trial court erred in determining that his quiet title claim is time

barred insofar as the claim is premised on the theory that the 2003 grant deed is void

ab initio.16



16     The sole argument that Scott raised in his opening brief with respect to this issue
was that his quiet title claim could be brought at any time because the first amended
complaint alleged that the 2003 grant deed was void ab initio, for various reasons,
namely, lack of intent, lack of capacity, and fraud. We reject Scott's argument, for the
reasons stated in the text. Scott did not raise any argument pertaining to which statute or
statutes of limitations applied to his claim, and thus we need not address this issue. (See
Robertson, supra, 90 Cal.App.4th at p. 1326 [noting that either Code of Civil Procedure
section 343 or Code of Civil Procedure section 338, subdivision (d) may apply to an
action to cancel an instrument as void depending on the theory alleged].) Nor does Scott
                                              16
B. Scott's first amended complaint did not properly state a claim for quiet title
   premised on the theory that Randy and Boosinger severed the joint tenancy

       Scott contends that he properly stated a claim for quiet title based on his allegation

that any joint tenancy ownership of the Property existing between Randy and Boosinger

was severed by Randy and Boosinger through the combination of Randy's filing of the

original complaint for partition and Boosinger's filing of her verified answer to the

complaint.

       We consider de novo whether Scott properly stated a quiet title cause of action

pursuant to this theory. (See Committee for Green Foothills v. Santa Clara County Bd. of

Supervisors (2010) 48 Cal.4th 32, 42 ["On review from an order sustaining a demurrer,

'we examine the complaint de novo to determine whether it alleges facts sufficient to

state a cause of action under any legal theory, such facts being assumed true for this

purpose' "].)17



maintain in his opening brief that his claim was timely under either Code of Civil
Procedure section 343 or Code of Civil Procedure section 338, subdivision (d), or that
some other statute of limitations applies.
        In his reply brief, Scott contends for the first time on appeal that the trial court
improperly considered "the contents of judicially noticed documents" (capitalization
omitted), in concluding that Randy had notice, no later than 2007, that Boosinger asserted
that the Property was held in joint tenancy and that Scott's claim was therefore untimely
under Code of Civil Procedure section 338, subdivision (d). Scott presents no reason
why this claim was raised for the first time in reply. Accordingly, we decline to consider
this claim. (See Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000)
78 Cal.App.4th 847, 894, fn. 10 (Shade Foods) [" ' "points raised in the reply brief for the
first time will not be considered, unless good reason is shown for failure to present them
before" ' "].)
17      As noted in part II., ante, Boosinger addressed Scott's joint tenant severance
theory in her demurrer. However, Scott correctly notes that the "trial court did not
address the second alternatively pleaded argument" in its order sustaining Boosinger's
                                             17
       1. Governing law

       "A joint tenancy, with its attendant 'right of survivorship,' is an estate designed

primarily to allow two or more persons who jointly own property to avoid probate upon

the death of one of the joint tenants. At common law, four unities were required to create

a joint tenancy: interest, time, title, and possession. [Citation.] . . . If one of the unities

were destroyed, a tenancy in common would result." (Estate of England (1991) 233

Cal.App.3d 1, 4.)

       Section 683.2 outlines a nonexclusive list of methods by which a joint tenancy

may be severed. (Estate of England, supra, 233 Cal.App.3d at p. 5 [stating that section

683.2 "makes clear that statutory severance is not exclusive"].) Subdivisions (a) through

(c) of the statute describe several ways in which a joint tenancy may be unilaterally

severed by a joint tenant.18 Section 683.2, subdivision (d), discussing severances

effectuated by "all the joint tenants," provides:



demurrer. Nevertheless, because we must affirm the trial court's judgment if it is correct
on any theory, we consider de novo whether Scott has properly stated a quiet title cause
of action pursuant to this theory. (See Hendy v. Losse (1991) 54 Cal.3d 723, 742 ["On
appeal from a judgment of dismissal entered after a demurrer has been sustained without
leave to amend . . . the appellate court must affirm the judgment if it is correct on any
theory"].)
18     Section 683.2 provides in relevant part:
           "(a) Subject to the limitations and requirements of this section, in
           addition to any other means by which a joint tenancy may be
           severed, a joint tenant may sever a joint tenancy in real property as
           to the joint tenant's interest without the joinder or consent of the
           other joint tenants by any of the following means:
           "(1) Execution and delivery of a deed that conveys legal title to the
           joint tenant's interest to a third person, whether or not pursuant to an
                                               18
          "(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."

      "[A]n agreement between joint tenants to dispense with the right of survivorship

terminates a joint tenancy relationship. [Citation.] Furthermore, an agreement between


          agreement that requires the third person to reconvey legal title to the
          joint tenant.
          "(2) Execution of a written instrument that evidences the intent to
          sever the joint tenancy, including a deed that names the joint tenant
          as transferee, or of a written declaration that, as to the interest of the
          joint tenant, the joint tenancy is severed.
          "(b) Nothing in this section authorizes severance of a joint tenancy
          contrary to a written agreement of the joint tenants, but a severance
          contrary to a written agreement does not defeat the rights of a
          purchaser or encumbrancer for value in good faith and without
          knowledge of the written agreement.
          "(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."
                                              19
joint tenants which is inconsistent by its terms with one or more of the four essential

unities of joint tenancy will be considered a severance even though it does not expressly

terminate the joint tenancy." (Estate of Blair (1988) 199 Cal.App.3d 161, 169.)

       2. Factual and procedural background

       In his original April 2013 complaint for partition, Randy alleged in relevant part:

          "2. [Randy] is, and was at all relevant times mentioned herein, a
          resident of San Diego County, California. He is the current co-
          owner and joint title deed holder in the . . . Property since it was
          purchased in 2003. [Randy] owns a two-thirds (66.7%) interest in
          the . . . Property based percentage [sic] of original capital and
          investment made at the time of purchase, as well as the
          understanding and agreement of [Randy] and co-owner Boosinger at
          that time.

          "3. Defendant [Boosinger] is, and has been at all relevant times
          mentioned herein, a resident of San Diego County, California.
          Boosinger owns a one-third (33.3%) interest in the . . . Property
          based on her smaller proportion of [the] downpayment and
          investment made at the time of purchase, as well as the agreement
          and understanding between co-owners [Randy] and Boosinger."
          (Some capitalization omitted.)

       In addition, among other allegations, paragraph 13 of the complaint alleged:

          "[Randy] has, and continues to hold, a two-thirds (66.7 %)
          ownership interest in the . . . Property."

       In her original June 2013 verified answer, Boosinger admitted the allegations in

paragraphs 2 and 3, but denied paragraph 13.

       Randy died on July 3, 2013. The court granted Scott's motion to be substituted in

as the named plaintiff in the action in May 2014.




                                             20
       Boosinger filed a motion for leave to file an amended verified answer to the

complaint and a cross-complaint in July 2014. Scott filed a notice of nonopposition to

Boosinger's motion in October 2014. In addition, on November 3, 2014, Scott's counsel

signed a stipulation that states in relevant part:

           "As a result of newly discovered facts and circumstances, including
           the death of [Randy] and substitution of his personal representative
           as Plaintiff, the parties have agreed that Defendant Valerie A.
           Boosinger be allowed to file her Amended [V]erified Answer to
           Complaint as well as her Verified Cross-Complaint."

       The trial court granted Boosinger's motion for leave to file an amended answer and

a cross-complaint on November 7, 2014.

       In her amended verified answer to the complaint, Boosinger alleged the following

with respect to paragraphs 2 and 3 of Scott's complaint:

           "2. [Boosinger] admits that [Randy], deceased, was at all relevant
           times a resident of San Diego County California. [Boosinger]
           admits that when the [P]roperty was purchased, [Randy] owned [a]
           two-thirds interest in the [P]roperty based on a percentage of [the]
           original capital and investment made at the time of purchase.
           [Boosinger] denies that the [P]roperty was purchased in 2003.

           "3. [Boosinger] admits she is, and at all relevant times was, a
           resident of San Diego County. [Boosinger] admits that upon
           purchase of the property, she owned [a] one-third interest in the
           [p]roperty based on her smaller portion of the down-payment and
           investment made at the time of the purchase as well as the agreement
           and understanding between co-owners [Randy] and Boosinger."
           (Some capitalization omitted.)

       Boosinger denied paragraph 13 of the complaint.




                                               21
        In her cross-complaint, Boosinger alleged the following:

           "[Boosinger] obtained her interest in fee simple title to the [Property]
           by a Grant Deed dated February 26, 2003 transferring the [P]roperty
           to [Randy] and [Boosinger] as joint tenants, and recorded at the
           official records of the San Diego County Recorder's Offices . . . .
           In July, 2013, [Randy] passed away. [Scott] then initiated probate
           proceedings and was appointed as personal representative of the
           estate of [Randy], deceased. However, as a result of the joint
           tenancy relationship with the right of survivorship, and death of
           [Boosinger's] Joint Tenant, [Randy's] title to the subject property is
           manifested to [Boosinger] solely."

        Scott filed a first amended complaint in June 2015 in which he alleged in relevant

part:

           "If the joint tenancy was not severed unilaterally[ 19] on April 30,
           2013 when [Randy] filed and served the [Original Complaint], it
           was severed when Boosinger filed her Verified Answer to the
           [O]riginal [Complaint] on or about June 26, 2013 because the
           [Original Complaint] and Verified Answer together constituted a
           signed writing by the parties acknowledging a right to severance and
           the creating of a tenancy in common with [Randy] such that he again
           owned a two-thirds interest and Boosinger owned a one third
           interest." (Some capitalization omitted.)




19     In his reply brief, Scott contends for the first time on appeal that he properly stated
a claim for quiet title premised on the theory that Randy unilaterally severed the joint
tenancy. While this theory is pled in the first amended complaint, Scott's argument in his
opening brief was restricted to his contention that there was a "bilateral joint tenancy
severance." (Italics added.) Scott did not present a legal argument that he had adequately
pled a unilateral severance, and Scott presents no reason why it was raised for the first
time in reply. Accordingly, we decline to consider this claim. (See Shade Foods, supra,
78 Cal.App.4th at p. 894, fn. 10.)
                                             22
       3. Application

       Scott argues that "[b]y the enactment of subdivision (d) [of Section 683.2], the

Legislature sought to preserve rights accorded parties via common law and written

instruments that communicate a bilateral notice and intent to sever a joint tenancy."

(Italics added.) We agree. However, Scott cites no common law authority, and we are

aware of none, that holds that a court may interpret a party's complaint and another

party's superseded answer to constitute an instrument that severs a joint tenancy.

       While there are numerous cases that hold that a joint tenancy may be severed by

an express or implied agreement of the joint tenants (see, e.g., Estate of Blair, supra, 199

Cal.App.3d at pp. 168-169), the complaint and the superseded answer in this case do not

constitute evidence of such an agreement. That is because it is unclear, even from

Boosinger's superseded answer, that Boosinger agreed that she and Randy owned

different percentage interests in the property (and therefore were not joint tenants).

While Boosinger admitted paragraphs 2 and 3 of the complaint, which stated that

"[Randy] owns a two-thirds (66.7%) interest in the . . . Property," ([¶] 2) and "Boosinger

owns a one-third (33.3%) interest in the . . . Property," ([¶] 3, some capitalization

omitted) she denied the allegation that "[Randy] has, and continues to hold, a two-thirds

(66.7 %) ownership interest in the . . . Property." ([¶] 13, some capitalization omitted).

       Further, Scott does not claim that Boosinger's verified but superseded answer

constituted a judicial admission. (See Minish v. Hanuman Fellowship (2013) 214


                                             23
Cal.App.4th 437, 456 ["The doctrine of judicial admissions also does not apply to

allegations in pleadings that have been superseded by amendments, especially where the

initial pleading was not verified and the court granted permission to file the amended

pleading to correct a potentially damaging admission in the initial pleading that was the

result of mistake, inadvertence, or inadequate knowledge of the facts"].)20

       Under these circumstances, we conclude that the first amended complaint did not

properly state a claim for quiet title premised on the theory that Randy and Boosinger

severed the joint tenancy by way of his complaint and her answer. Accordingly, we

conclude that the trial court did not err in sustaining, without leave to amend,21

Boosinger's demurrer to Scott's quiet title cause of action premised on this theory.22




20      Accordingly, we need not decide whether a party's judicial admission that real
property is not held in joint tenancy may be considered an agreement that the property is
not held in joint tenancy.
21      Scott does not argue on appeal that he could amend his complaint to allege
additional facts such that he could properly state a claim for quiet title pursuant to this
theory. Accordingly, we conclude that Scott has not demonstrated how he could amend
his complaint to properly state such a claim. (See Blank v. Kirwan (1985) 39 Cal.3d 311,
318 [stating that the burden of demonstrating a reasonable possibility that a defect in a
complaint can be cured by an amendment is "squarely on the plaintiff"].)
22      As noted in part II., ante, the trial court sustained Boosinger's demurrer to Scott's
cause of action for partition on the ground that "[Scott] has no interest in the [P]roperty
after the death of [Randy]." Apart from the claims that we have rejected in the text with
respect to whether Scott adequately alleged a claim asserting an interest in the Property,
Scott does not raise any claim with respect to this aspect of the trial court's ruling.
Accordingly, Scott has not demonstrated that the trial court erred in sustaining
Boosinger's demurrer to the partition claim without leave to amend.
                                             24
                                           IV.

                                     DISPOSITION

      The judgment is affirmed.



                                                                        AARON, J.

WE CONCUR:

HUFFMAN, Acting P. J.

PRAGER, J.*




*       Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
                                           25
