Filed 6/9/15 Wong v. Tam CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


LENA WONG,                                                           B259365

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BC541794)
         v.

JAMES TAM,

         Defendant and Appellant.




         APPEAL from orders of the Superior Court of Los Angeles County, William F.
Fahey, Judge. Affirmed.


         Leech Tishman Fuscaldo & Lampl and Lidell A. Page for Defendant and
Appellant.


         Freeman, Freeman & Smiley, Curtis A. Graham, and Tracy R. Mattie-Daub for
Plaintiff and Respondent.


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       Defendant James Tam appeals the trial court’s orders sustaining evidentiary
objections and granting summary adjudication in favor of plaintiff Lena Wong on her
claim of partition of a residence plaintiff and defendant co-owned. In granting summary
adjudication, the court excluded defendant’s key evidence supporting his defenses and
purporting to create a disputed issue of fact. Defendant has failed to demonstrate the trial
court abused its discretion in excluding this evidence, and as a result, failed to show the
trial court erred in granting summary adjudication. We affirm.
                                     BACKGROUND
       In 2002, plaintiff and defendant bought a residence in Walnut, California for their
aging parents. They took ownership as joint tenants each with an undivided one-half
interest and invested roughly the same amount of money in the purchase with the
agreement they would split expenses. In 2013, defendant recorded a “Declaration
Severing Joint Tenancy,” transforming the ownership to tenancy in common but not
changing the parties’ respective 50 percent ownership interests.1 Since the parties’
parents were now deceased, plaintiff wanted to sell her interest in the property, but
defendant refused to either purchase her half or sell the property. Plaintiff filed a
complaint for partition and other claims not at issue here. She then moved for summary
adjudication on the partition claim, arguing there was no dispute of fact she accurately
described the property in the complaint, she and defendant each owned half of the
property, and sale was necessary rather than physical division due to the nature of the
property.
       In opposition, defendant argued summary adjudication was inappropriate because
plaintiff’s partition action was barred by waiver, estoppel, and laches, and because
plaintiff lacked a beneficial interest in the property. To support these defenses, he



1       As part of her motion for summary adjudication, plaintiff requested judicial notice
of this declaration and the original grant deed for the property. It does not appear the trial
court expressly ruled on the request. We will assume the trial court granted this request
because defendant does not challenge this evidence on appeal.


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submitted his own declaration and a declaration from his brother setting forth the
following facts (among others):
       At a wedding reception in December 1999, plaintiff told the parties’ parents and
siblings that their parents would need to divest their assets in order to qualify for
Medicare and Medicaid and suggested they and defendant buy a home in a new senior
living community in Walnut, California. Defendant expressed interest in purchasing a
home in that community because it would allow him and his wife to use the home when
he retired or earlier in order to live closer to their children. He and his father also said
they were open to purchasing the home provided it was not sold for the lifetimes of the
parents’ children and “hopefully” their grandchildren, which stemmed from the Chinese
cultural tradition of passing family homes through generations. With that understanding,
defendant, plaintiff, and their parents orally agreed that defendant and their parents would
pursue buying a home.
       The parties’ parents owned other property in Florida and Monterey Park,
California. In 2000, plaintiff urged them to transfer those properties into her name for the
purpose of qualifying for Medicare and Medicaid. Their parents did so.2 For the
Monterey Park property, their father recorded a statement that he transferred the property
into plaintiff’s name “due to the process of the old age allowance application” and that he
was still the owner of the property.
       In August 2002, plaintiff located the property in Walnut, California the parties
would eventually purchase. Plaintiff and the parties’ parents agreed plaintiff would hold
title to the property and confirmed their earlier agreement that the property would not be
sold during the parties’ parents’ lifetimes and “hopefully” during their grandchildren’s
lifetimes. Defendant also repeated his intention to live in the home upon his retirement or
earlier, which plaintiff acknowledged. Two months later, plaintiff used funds she was
holding for the parties’ parents to purchase the property and defendant used his own


2     The Florida property was transferred into plaintiff’s and her sister’s names, while
the Monterey Park property was transferred into plaintiff’s name alone.


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funds to pay $220,000 of the purchase price. Defendant once again affirmed the parties’
agreement not to sell the property for one or more generations and reminded plaintiff he
intended to live there upon retirement, which she again acknowledged. The sale was
completed and plaintiff and defendant were both listed on the grant deed, although
plaintiff held title on behalf of their parents only in accordance with their agreement.
       The parties’ parents lived at the property from 2002 until they passed away within
a year of each other between 2005 and 2006. During that time, they and plaintiff
purchased an “ancestral altar” to place in the home to memorialize their agreement not to
sell the property. In Chinese culture, the altar created a “generational home,” i.e., a home
passed through generations, and because it could not be removed for spiritual reasons, the
home would not be sold or transferred outside the family. When the parties’ father fell ill
and passed away, plaintiff again reaffirmed their agreement not to sell—memorialized by
the altar—and affirmed she held title only on behalf of the parties’ parents. From the
time their mother passed away, plaintiff had exclusive possession of the property.
       In 2013, defendant decided to retire, at which point he recorded the Declaration
Severing Joint Tenancy. In early 2014, he moved in. Soon after, plaintiff demanded he
buy her interest in the property or be subject to a partition action.
       As part of his declaration in opposition to summary adjudication, defendant
submitted exhibits that included, among other documents, the parties’ father’s recorded
statement that he owned the Monterey Park property even though it was in plaintiff’s
name, a certificate of deposit from plaintiff’s bank account reflecting a deposit of some
funds, and photographs of the altar and plaintiff’s belongings in the home. He also
requested judicial notice of the deeds for the parents’ Florida and Monterey Park
properties and his recorded Declaration Severing Joint Tenancy.
       In reply to defendant’s opposition to the motion for summary adjudication,
plaintiff objected to almost all of defendant’s declaration and all of defendant’s brother’s
declaration. She did not specifically object to the exhibits attached to defendant’s
declaration, nor did she expressly oppose defendant’s request for judicial notice. She
also offered a declaration from her attorney who had been representing her since the 2006


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probate proceedings involving the parties’ mother’s estate. He stated he made several
requests to defendant’s attorneys to sell the property or purchase plaintiff’s interest, to no
avail. He claimed that, until the present action, defendant never raised an issue over
plaintiff’s beneficial interest in the property, never claimed he would get to use the
property in his retirement, and never claimed the property was a “generational home” or
installing the altar meant it could not be sold.
       The trial court granted the motion. In doing so, it sustained nearly all of plaintiff’s
objections, excluding defendant’s and his brother’s testimony that (1) plaintiff agreed the
property could not be sold during the lifetimes of the parties’ parents’ children or
grandchildren, (2) plaintiff and the parties’ parents purchased an altar for the home to
memorialize their agreement, (3) plaintiff agreed to take title on behalf of the parents
only, and (4) at any time after the 1999 wedding reception plaintiff understood defendant
intended to move into the property when he retired. The court also excluded all of
defendant’s testimony regarding the parents’ other properties. The only testimony of
consequence the court did not exclude was defendant’s statement that at the 1999
wedding reception he expressed interest in purchasing a home in Walnut, California for
retirement and plaintiff “stated that she understood and acknowledged my primary
purpose in purchasing a home in the Walnut Community, to wit, use of the Property by
me and my wife when I retire or earlier to be closer to our children in Southern
California.” The court did not expressly rule on defendant’s request for judicial notice.
       Defendant timely appealed the court’s orders. (Code Civ. Proc, §§ 904.1, subd.
(a)(9), 906; all further statutory citations are to the Code of Civil Procedure unless
otherwise noted.)
                                       DISCUSSION
       A motion for summary adjudication “shall be granted if all the papers submitted
show that there is no triable issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” (§ 437c, subds. (c), (f).) “The moving party
‘bears an initial burden of production to make a prima facie showing of the nonexistence
of any triable issue of material fact.’ [Citation.] To meet that burden, a plaintiff seeking


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summary adjudication on a cause of action must present evidence sufficient to establish
every element of that cause of action. A plaintiff’s initial burden, however, does not
include disproving any affirmative defenses the defendant asserts. ‘Once the plaintiff . . .
has met [its] burden, the burden shifts to the defendant . . . to show that a triable issue of
one or more material facts exists as to that cause of action or a defense thereto.’”
(California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 630-631 (California
Bank & Trust); see § 437c, subd. (p)(1).)
         “On appeal after a motion for summary judgment has been granted, we review the
record de novo, considering all the evidence set forth in the moving and opposition
papers except that to which objections have been made and sustained.” (Guz v. Bechtel
National, Inc. (2000) 24 Cal.4th 317, 334; see § 437c, subd. (d) [“Supporting and
opposing affidavits or declarations shall be made by any person on personal knowledge,
shall set forth admissible evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated in the affidavits or declarations.”].) We review
evidentiary rulings in connection with a summary adjudication motion for abuse of
discretion. (Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158,
1169.)
         In the trial court, defendant did not dispute plaintiff met her initial burden of
establishing no triable issue of fact on her partition claim. She offered undisputed
evidence of (1) the legal and common description of the property, (2) her and defendant’s
one-half interests in the property, and (3) reasons why the property could not be divided
and should instead be sold. (§ 872.230.)3 Instead, defendant asserted the defenses of



3      Section 872.230 requires the complaint in a partition action to set forth: “(a) A
description of the property that is the subject of the action. In the case of tangible
personal property, the description shall include its usual location. In the case of real
property, the description shall include both its legal description and its street address or
common designation, if any. [¶] (b) All interests the plaintiff has or claims in the
property. [¶] (c) All interests of record or actually known to the plaintiff that persons
other than the plaintiff have or claim in the property and that the plaintiff reasonably
believes will be materially affected by the action, whether the names of such persons are

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waiver, estoppel, and fairness, all of which are viable defenses to partition. (§ 872.710,
subd. (a); American Medical International, Inc. v. Feller (1976) 59 Cal.App.3d 1008,
1013-1015; Thomas v. Witte (1963) 214 Cal.App.2d 322, 326.) Waiver occurs, for
example, when co-owners agree to satisfying certain conditions before selling their
interests. (See, e.g., LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 497 [right
of first refusal if a co-owner wanted to sell his or her interest]; Schwartz v. Shapiro
(1964) 229 Cal.App.2d 238, 253 [agreement that co-owners must first offer interest to co-
owner before selling to third party]; Miranda v. Miranda (1947) 81 Cal.App.2d 61, 65-66
[agreement that former spouses would remain joint tenants so long as wife did not
remarry and kept property as home for her and the spouses’ children].) Courts have also
found implied waiver when partition would defeat a business purpose for which the
property was acquired, such as when “cotenants agreed to a plan designed to develop
property over a period of time (Thomas v. Witte[, supra,] 214 Cal.App.2d 322) or
invested in property which was subject to a long-term lease with a view toward obtaining
a secure source of investment income (Pine v. Tiedt (1965) 232 Cal.App.2d 733).”
(American Medical International, Inc., supra, at p. 1015.) Fairness may bar partition
because partition results in the forced sale of the property, forcing the objecting co-owner
“to part with his interest in the property, contrary to his expectations which brought into
being defenses such as waiver of the right of partition, estoppel or other conditions which
make applicable the equitable principle of fairness.” (Id. at p. 1016.)
       Although defendant attempted to create a disputed issue of fact over his defenses
with evidence that plaintiff orally agreed on several occasions not to sell the property and
to allow defendant to live in the property upon retirement, the trial court sustained
plaintiff’s objections and excluded nearly all of that evidence. After those rulings, the
only remaining evidence submitted by defendant was (1) defendant’s statement that, in


known or unknown to the plaintiff. [¶] (d) The estate as to which partition is sought and
a prayer for partition of the interests herein. [¶] (e) Where the plaintiff seeks sale of the
property, an allegation of the facts justifying such relief in ordinary and concise
language.”


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1999, plaintiff understood defendant wanted to buy a property in Walnut, California to
use in retirement, (2) the exhibits to defendant’s declaration purporting to support his
testimony, and (3) the deeds to the parties’ parents’ Florida and Monterey Park properties
subject to defendant’s request for judicial notice. Assuming all of this evidence remained
admissible, it did not create a disputed issue of fact. The exhibits and deeds were
irrelevant absent defendant’s explanation of their significance in his declaration, which
the court excluded. Plaintiff’s understanding in 1999 that defendant intended to use an
as-yet unidentified property in retirement could not demonstrate plaintiff waived her right
to partition because the parties did not identify—let alone purchase—the property until
three years later. Thus, in the absence of admissible evidence creating a triable issue over
defendant’s defenses, the trial court properly granted summary adjudication.
       On this record, defendant’s task on appeal was two-fold: to show the trial court
abused its discretion in excluding his key evidence, and if so, to show that evidence
created a triable issue of fact. (Cf. California Bank & Trust, supra, 222 Cal.App.4th at
p. 637 [defendants’ failure to challenge evidentiary rulings on appeal from summary
adjudication motion required Court of Appeal to exclude defendants’ evidence and find
defendants had no evidence to create a triable issue].) In his opening brief on appeal,
defendant focused on the second question, while ignoring the first. He said only that the
trial court “exceeded its authority and effectively made findings of fact by striking nearly
all of the evidence of the parties’ express agreement and [defendant’s] reasonable
expectations.” This blanket statement does not demonstrate the trial court abused its
discretion. For the first time in his reply brief, he argued the trial court improperly
excluded plaintiff’s statements affirming the parties’ agreement not to sell the property,
contending those statements were relevant and not barred by the hearsay rule. (Evid.
Code, §§ 210, 1220 [statements offered against party not barred by hearsay rule].) Yet,
he did not show good cause for raising these points for the first time in his reply brief, so
we are not inclined to consider them. (Allen v. City of Sacramento (2015) 234
Cal.App.4th 41, 52.) Even if we were so inclined, the trial court excluded this evidence
on several other grounds, including that it was vague, speculative, lacking foundation,


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and comprised of improper conclusions. Defendant has not challenged those rulings on
appeal.
       In the end, defendant’s failure to challenge the court’s evidentiary rulings provides
“an adequate and independent ground for affirming the trial court’s decision granting”
summary adjudication. (California Bank & Trust, supra, 222 Cal.App.4th at p. 637.)
                                      DISPOSITION
       The trial court’s orders are affirmed. Plaintiff shall recover her costs on appeal.
Plaintiff’s request for attorney fees on appeal is denied without prejudice to her seeking
such fees in the trial court.




                                                  FLIER, J.
WE CONCUR:




       BIGELOW, P. J.




       RUBIN, J.




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