Filed 8/17/20 Morgan v. Druhet-Johnson CA1/2
                  NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      FIRST APPELLATE DISTRICT

                                                   DIVISION TWO


 ERNEST MORGAN,
             Plaintiff and Respondent,
                                                                        A157790
 v.
 MIRIAM Y. DRUHET-JOHNSON,                                              (San Francisco
 et al.,                                                                Super. Ct. No. CGC-17-558418)
           Defendants,
 DESHONNE DRUHET,
             Defendant and Appellant.

         In 1973, three children—Harvey Druhet, Roger Druhet, Jr., and Estelle
Hayes—inherited one-third shares of a San Francisco property as tenants in
common. Harvey Druhet and his wife Annette Morgan-Druhet subsequently
occupied the property for several decades, until their deaths. In 2017,
Annette’s son Ernest Morgan, as administrator of her estate, brought suit
seeking to quiet title to the property, and successfully moved for summary
judgment on the ground that Harvey and Annette had acquired sole title to
the property as against Roger and Estelle by adverse possession.1 Defendant




        For clarity, we will refer to certain of the parties involved by their
         1

first names.

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Deshonne Druhet appeals, raising seven challenges to the trial court’s
rulings. We conclude that none of the challenges has merit, and we affirm.
                               BACKGROUND
      Roger Druhet, Sr. was the owner of a home located on Thornton Avenue
in San Francisco (the property). In 1973, after Roger Sr.’s death, three of his
children—Harvey, Roger Jr., and Estelle—each inherited one-third shares of
the property as tenants in common. At that time, Harvey was married to
Annette and living in San Diego. Roger Jr. and Estelle were living in New
Orleans.
      Shortly after Harvey inherited his interest, he and Annette moved from
San Diego into the property. And between 1973 and 2014, Harvey and
Annette lived exclusively and continuously at the property, holding
themselves out to the public as its only owners. They paid the various
expenses associated with the property, including the mortgage, utilities,
insurance, property taxes, maintenance, and improvements. They received
mail and deliveries at the property and parked their vehicles there. Annette
also ran her interior design business from the property. Harvey died in 2009,
and Annette in 2014.
      Meanwhile, Estelle died in 1997, and Roger in 2001.
      Plaintiff Ernest Morgan was Annette’s son, and Harvey’s stepson.
After his mother’s death in 2014, he became administrator of her estate. In
that capacity, on April 27, 2017, he filed the instant action in San Francisco
Superior Court, naming as defendants Miriam Y. Druhet-Johnson, the
administrator of Harvey’s estate, as well as the testate and intestate
successors of Roger and Estelle. The suit sought declaratory relief and to
quiet title to the property.



                                       2
      Miriam filed an answer to the complaint. Seven of Roger’s children and
grandchildren, including his granddaughter appellant Deshonne Druhet
(when referred to collectively, defendants), filed a separate answer and also a
cross-complaint for partition, trespass, quantum meruit, and unjust
enrichment.
      On September 26, 2018, Morgan moved for summary judgment, on the
basis that Harvey and Annette had acquired sole title to the property by
adverse possession. In support of the motion, Morgan attached his own
declaration, with six exhibits that Morgan testified he had found among his
mother’s papers.
      The first exhibit was a letter dated July 20, 1979, from Harvey to
Roger. The letter referred to an agreement between Harvey and Roger,
stating that Harvey had paid off the mortgage and property tax payments on
the property, and that “upon completion of mortgage payments I would pay
each of you ten thousand dollars ($10,000) purchasing your interest in the
property.” The letter further provided that an installment payment of $2,000
would be made “upon receipt of signed agreement,” with monthly payments of
at least $150 to follow. The agreement was signed by Harvey and Roger, and
notarized in San Francisco on July 30, 1979.
      The second exhibit was a check register, listing a beginning balance of
$10,000, an initial payment of $2,000 dated August 7, 1979, followed by
monthly payments of $200 each month thereafter, all to “R. Druhet,” with the
final $200 payment made December 7, 1982.
      The sixth exhibit was a letter to Harvey dated June 29, 1979, from
William J. Guste, III, an attorney representing Estelle, stating that Harvey
had not responded to Guste’s previous letter of June 6 and asking Harvey to
“be advised that if I have not heard from you by July 14, 1979, we will engage

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San Francisco counsel to take whatever legal action may be necessary to
protect our client’s interest.”
      Morgan’s declaration also included the following paragraphs:
      “5. In late 1982, Harvey and Annette threw a large party at the
Property and invited all of their close friends. The express purpose of the
party was to celebrate their having finalized the purchase of Roger, Jr. and
Estelle’s interests in the Property, thus becoming the sole owners of the
Property. I worked the party as a bartender at my parents’ request. While
there, I spoke with Harvey and Annette about their purchase of the Property.
Annette and Harvey were so happy and conveyed to me that they were
pleased to have reached agreements with Roger, Jr. and Estelle to purchase
their interests in the Property.”
      “6. Between 1973 and 2014, Harvey and Annette lived continuously at
the Property. At all points in time they held themselves out to the public as
the true and only owners of the Property. They actually, continuously, and
exclusively resided at, occupied, controlled, and exercised all ownership
rights to the Property by, among other things, living there on a day-to-day
basis, paying the mortgage, utilities, and insurance, receiving mail and
deliveries there, parking their vehicles there, maintaining and making
improvements to the Property, and paying all taxes assessed against the
Property. Their claimed ownership, occupancy, and use of the Property was
readily visible for anyone to see. Annette even ran her interior design
business out of the Property.”
       “8. Estelle was in town visiting from New Orleans. During her stay at
the Property, she set fire to the living room floor. Following this incident, she
was asked to leave the Property by Harvey and Annette and not come back.
To my knowledge, she never returned to the Property after that visit.”

                                        4
      The motion was set for hearing on December 17, 2018.
      On November 21, defendants moved ex parte to continue the hearing
pursuant to Code of Civil Procedure section 437c, subdivision (h), on the
ground that “facts essential to justify opposition may exist but cannot, for
reasons stated, be presented,” allegedly due to Miriam’s failure to respond to
document requests served on her by Morgan in late July.
      Following oral argument, the trial court granted the request and
continued the hearing until March 14, 2019. However, the trial court further
ordered that defendants’ opposition be filed in accordance with the original
December 17, 2018 hearing date, with a supplemental opposition limited to
“new information obtained from Miriam” to be filed based on the new
March 14, 2019 hearing date. Plaintiff’s reply was then to be filed based on
the new hearing date. Defendants objected to this schedule.
      On November 30, defendants filed opposition to the motion. In support
were attached two virtually identical declarations from Deshonne and Roger
Jr.’s son Emile. Emile’s declaration provided in part that:
      “18. My father, ROGERS [sic] DRUHET, JR. (II) never sold his interest
in the Property to anyone, and I can categorically state that as my father’s
son, I was in a position to know that he did not.
      “19. My aunt, ESTELLE HAYES née DRUHET never sold her interest
in the Property to anyone, and I can categorically state that as my aunt’s
close nephew, I was in a position to know that she did not.”
      “21. My aunt, ESTELLE HAYES née DRUHET, was never excluded or
refused entry to the Property by anyone and was certain[ly] not by her very
brother, HARVEY DRUHET or his second wife.”
      Similarly, Deshonne’s declaration provided:



                                       5
      “22. My great-aunt, Estelle Hayes née Druhet never sold her interest in
the Property to anyone, and I can categorically state that, as my aunt’s
favorite great-niece, I was in a position to know that she did not.
      “23. Neither my father, Rogers Druhet, III, nor my grandfather, Rogers
[sic] Druhet, Jr. (or II) was ever excluded or refused entry to the Property by
anyone and Rogers [sic] Druhet, Jr. (or II) was certainly not ever denied entry
by his very brother, Harvey Druhet or his second wife.
      “24. My great-aunt, Estelle Hayes née Druhet, was never excluded or
refused entry to the Property by anyone and was certainly not ever denied
entry by her very brother, Harvey Druhet or his second wife.”
      Defendants’ supplemental opposition was due February 28, 2019.
Defendants served Miriam with written discovery on January 29, and on
February 26, defendants’ counsel filed a declaration indicating that Miriam
had not yet responded to their requests.
      On March 7, Miriam filed a “Notice of Non-Opposition” to Morgan’s
motion for summary judgment, and a declaration in support thereof. Her
declaration stated that it was “[her] understanding that Roger, Jr. and
Estelle agreed to sell their interest in the Property to Harvey and Annette,”
and that she did “not oppose Plaintiff’s effort to clear up the title error and in
fact, I support it. Title to the Property should be held by Harvey and
Annette.”
      No supplemental opposition to the motion was ultimately filed by
defendants.
      Plaintiff filed his reply, and the motion came on for hearing on
March 14, in advance of which the trial court issued a tentative ruling
granting the motion. After the hearing, the trial court adopted its tentative



                                        6
ruling in a written order, granting the motion and concluding in part as
follows:
      “Harvey and Annette ousted Roger, Jr. as a co-tenant by virtue of their
purchase of his interest in the Property. [Citation.] Harvey and Annette
ousted Estelle as a co-tenant by virtue of their purchase of her interest in the
Property, requesting she physically leave the Property, and Estelle’s attorney
threatening litigation to protect her interest in the Property. [Citation.]”
      Judgment was subsequently entered quieting title to the property in
Harvey and Annette, from which Deshonne alone appealed.
                                DISCUSSION
      Deshonne raises seven arguments on appeal: (1) the trial court erred
in extending the deadline for defendants’ response to the motion only with
respect to newly obtained discovery from Miriam; (2) the trial court erred in
not striking Miriam’s notice of non-opposition to the motion; (3) Deshonne
and Emile’s declarations in support of the opposition to the motion created
triable issues of fact; (4) Morgan failed to establish that Harvey and
Annette’s possession of the property was hostile to Roger and Estelle; (5) the
trial court abused its discretion in overruling defendants’ evidentiary
objections to the exhibits attached to Morgan’s declaration; (6) certain of the
statements in Morgan’s declaration were inadmissible hearsay; and (7)
certain statements in Miriam’s declaration were inadmissible hearsay.
      Deshonne Was Not Prejudiced by the Briefing Schedule
      Deshonne’s first argument is that by ordering Morgan to file only one
reply brief addressing both defendants’ November opposition and their March
supplemental opposition based on any discovery obtained from Miriam, the
trial court unfairly gave Morgan approximately an extra three months to
respond to the November opposition, instead of the typical nine-day period.

                                        7
(See Code Civ. Proc., § 437c, subds. (b)(2) & (b)(4).) But Code of Civil
Procedure, section 437c, subdivision (b)(4) provides that any reply shall be
served and filed “not less than five days preceding the noticed or continued
date of hearing, unless the court for good cause orders otherwise,” so the
briefing schedule set by the trial court was not prohibited by that section.
Beyond that, Deshonne has not even attempted to show that defendants were
prejudiced by the briefing schedule, and “[a]bsent an explicit argument that a
procedural error caused prejudice, we are under no obligation to address the
claim of error.” (Quail Lakes Owners Assn. v. Kozina (2012) 204 Cal.App.4th
1132, 1137; see Cal. Const., art. VI, § 13 [reversal for a procedural error
requires a “miscarriage of justice”].)
      The Trial Court Did Not Rely on Miriam’s Notice or Declaration
      Deshonne argues that the trial court should have struck Miriam’s
“Notice of Non-Opposition” to Morgan’s motion (argument two), and that
certain statements in Miriam’s accompanying declaration were inadmissible
hearsay (argument seven). We need not consider these arguments, because
Deshonne has failed to articulate any prejudice from the alleged errors
relating to Miriam’s declaration—a point made in Morgan’s brief, to which
Deshonne did not file a reply. The trial court’s written order, including its
description of the material facts and specific evidence relied upon in granting
the motion, makes no mention of Miriam’s notice or her declaration, and
instead bases its conclusions on Morgan’s declaration and the exhibits
attached thereto.
      Deshonne’s Evidentiary Objections to Morgan’s Declaration Fail
      We turn next to Deshonne’s evidentiary objections to Morgan’s
declaration in support of his motion, arguments numbered five and six.
Deshonne first argues that the six exhibits to the declaration were

                                         8
improperly admitted, asserting that the documents were “cherry-picked,” and
are “self-serving, vague, ambiguous, and incomplete.” Passing over that most
documents submitted by a party are “self-serving,” and that “cherry-picked”
is not a valid objection, Deshonne’s objections are plainly meritless—indeed
frivolous. To take one representative example, with respect to the check
register, Deshonne’s brief asserts “[i]f it is a check register, the question
arises, where are the cashed checks which were returned to the couple’s
bank? Their absence speaks volumes.” And, after noting that the final entry
in the check register is dated December 7, 1982: “Morgan would have us
believe, that the couple paid off Roger Jr. in 1982[], but in 32 years the couple
never altered the title to the property to remove Roger Jr.’s name from it.”2
These are not even cognizable evidentiary objections, never mind meritorious
ones.
        Deshonne also contends that Morgan’s declaration contained
inadmissible hearsay. She points to Morgan’s statement that Annette and
Harvey were “so happy and conveyed to me that they were pleased to have
reached agreements with Roger, Jr. and Estelle to purchase their interests in
the property,” and his statement that following the alleged incident in which
Estelle set fire to the living room floor, Estelle was “asked to leave the
Property by Harvey and Annette and not come back.”
        The first statement is arguably covered by the state of mind exception
to the hearsay rule,3 but even if not, the trial court made no mention of the

       Morgan’s complaint alleged that the failure to transfer title to the
        2

property was “due to a clerical error.”
        (See Evid. Code, § 1250, subd. (a) [“evidence of a statement of the
        3

declarant’s then existing state of mind” admissible to “prove the declarant’s
state of mind, emotion, or physical sensation at that time” or to “prove or
explain acts or conduct of the declarant”].)

                                         9
statement in reaching its decision or in detailing the evidence it relied on,
and Deshonne has not explained how the alleged error was in any way
prejudicial. (See Truong v. Glasser (2009) 181 Cal.App.4th 102, 119 [on
appeal of evidentiary rulings on summary judgment appellant must
“articulate how the admission of that evidence was prejudicial”]; In re Auto.
Antitrust Cases I & II (2016) 1 Cal.App.5th 127, 141–142.)
      As to the second statement, a request or demand by Harvey and
Annette that Estelle not return to the property is not hearsay because it was
not offered to prove the truth of the matter asserted. (See People v. Jurado
(2006) 38 Cal.4th 72, 117 [“Because a request, by itself, does not assert the
truth of any fact, it cannot be offered to prove the truth of the matter
stated”].)
      Defendants’ Declarations Did Not Create Triable Issues of Fact
      Finally, we turn to Deshonne’s two arguments on the merits,
arguments three and four—arguments we review de novo. (Nealy v. City of
Santa Monica (2015) 234 Cal.App.4th 359, 370.)
      First, Deshonne contends that the declarations submitted in support of
defendants’ opposition create a triable issue of fact. We disagree. To begin
with, declarations are required to set forth “[e]videntiary facts,” and
“[c]onclusions of fact or law are not sufficient.” (Weil & Brown, Cal. Practice
Guide: Civil Procedure Before Trial (The Rutter Group 2020) ¶ 10:119.)
Beyond that, neither declaration offers any explanation for how Deshonne or
Emile knew that Roger or Estelle never sold their interest in the property.
They do not allege that either Deshonne or Emile ever discussed the property
or its ownership with Roger or Estelle. And neither Emile nor Deshonne
would reasonably be expected to know whether a 1979 sale of the property
had taken place simply by virtue of their close family relationship. (See

                                       10
Moua v. Pittullo, Howington, Barker, Abernathy, LLP (2014) 228 Cal.App.4th
107, 116 [“ ‘[A]n issue of fact is not raised by “cryptic, broadly phrased, and
conclusory assertions” [Citation.]’ ”]; Weil & Brown, Cal. Practice Guide:
Civil Procedure Before Trial (The Rutter Group 2020) ¶ 10:109 [personal
knowledge “ ‘must be shown by facts set forth in the declaration, and not
merely by conclusions. The matters alleged must be something about which
the declarant has reason to know personally—as distinguished from matters
of opinion or hearsay’ ”].) These conclusory declarations do not suffice to
establish a triable issue.
      Second, Deshonne argues that there was a triable issue of fact as to
whether Harvey and Annette adversely possessed the property as against
Roger and Estelle.
      “ ‘ “ ‘ “Before title may be acquired by adverse possession as between
cotenants, the occupying tenant must bring home or impart notice to the
tenant out of possession, by acts of ownership of the most open, notorious and
unequivocal character, that he intends to oust the latter of his interest in the
common property. [Citations.] Such evidence must be stronger than that
which would be required to establish a title by adverse possession in a
stranger. [Citation.]” . . . In short, one tenant in common cannot by mere
exclusive possession acquire the title of his cotenant. [Citation.]’ ”
[Citations.]’ (Preciado v. Wilde (2006) 139 Cal.App.4th 321, 325, italics
omitted.)” (Hacienda Ranch Homes, Inc. v. Superior Court (2011)
198 Cal.App.4th 1122, 1128.)
      Deshonne contends that Morgan failed to establish ouster, essentially
by casting doubt on the statements in Morgan’s declaration. She argues that
the idea that Harvey and Annette failed to change the title of the property
after the alleged purchases is “simply too absurd and farfetched to carry any

                                        11
weight,” and the description of the living room fire is “so obliviously [sic]
contrived as to border on the absurd.” These arguments are simply
challenges to Morgan’s credibility, which standing alone are insufficient to
defeat summary judgment. (See Code Civ. Proc., § 437c, subd. (e) [“summary
judgment shall not be denied on grounds of credibility . . . of witnesses
furnishing affidavits or declarations in support of the summary judgment”].)
      Finally, Deshonne argues that Harvey and Annette’s offers to purchase
Roger and Estelle’s interests undermine their claim for adverse possession,
relying on Preciado v. Wilde, supra, 139 Cal.App.4th 321. There, the plaintiff
brought a quiet title action against his niece, and at trial “admitted he never
excluded [defendant] from the property,” “never restricted her access, or
informed her he was challenging her ownership,” and that fences he
constructed “were not designed to exclude family members, such as
[defendant].” (Id. at p. 325.) The plaintiff had also written a letter to the
defendant, offering to purchase her interest in the property. (Id. at p. 323.)
The trial court found that the plaintiff had failed to establish adverse
possession, in part because the plaintiff’s offer to buy defendant’s interest
was “ ‘inconsistent with a claim of an ouster.’ ” (Id. at p. 324.) The Court of
Appeal affirmed, noting that the plaintiff “undermined his claim of adverse
possession when he testified he tried to buy [defendant’s] interest. His
September 9 letter is an admission that [defendant] held legal title. It
refutes the allegations of [plaintiff’s] complaint and impeaches his
credibility.” (Id. at p. 326.) But there is nothing similarly inconsistent about
Morgan’s position here, where he acknowledges that Roger and Estelle held
interests in the property and alleges that Harvey and Annette effected an
ouster in part by completing purchases of those very interests.



                                        12
                        DISPOSITION
The judgment is affirmed. Morgan shall recover his costs on appeal.




                               13
                                          _________________________
                                          Richman, J.


We concur:


_________________________
Kline, P.J.


_________________________
Miller, J.




Morgan v. Druhet-Johnson (A157790)




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