Re v. Re

• Decision Date: 19 October 1995
• Docket Number: No. B084790,B084790
• Citation: 46 Cal.Rptr.2d 62,39 Cal.App.4th 91
• Court: California Court of Appeals Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 8218, 95 Daily Journal D.A.R. 14,105 Steven L. RE, Plaintiff and Appellant, v. Pamela Ann RE, Defendant and Respondent.

Page 62

46 Cal.Rptr.2d 62

39 Cal.App.4th 91, 95 Cal. Daily Op. Serv. 8218,

95 Daily Journal D.A.R. 14,105

Steven L. RE, Plaintiff and Appellant, v. Pamela Ann RE, Defendant and Respondent.

No. B084790.

Court of Appeal, Second District, Division 5, California.

Oct. 19, 1995.

Barton, Klugman & Oetting and Ronald R. St. John, Los Angeles, for Plaintiff and Appellant.

Robert F. Rubin, Santa Monica, for Defendant and Respondent.

TURNER, Presiding Justice.

I. INTRODUCTION

Plaintiff, Steven L. Re, appeals from a judgment on his complaint against his sister, defendant, Pamela Ann Re, ¹ for partition of two parcels of real property which they had received by grant deed as joint tenants with their mother, Jane Re Norman. ² The sole contention on appeal is the trial court erred in determining the effect of a grant deed to Pamela which was executed by Mrs. Norman. The deed was not recorded until after the death of Mrs. Norman. For the reasons stated below, we affirm.

II. BACKGROUND

The complaint, ³ which was filed on January 10, 1990, alleged that on March 7, 1975, Steven, Pamela, and Mrs. Norman acquired the subject parcels as joint tenants. Between 1975 and the time the action was filed, Mrs. Norman collected and received the rents and profits from the property and, despite Steven's demand, refused to give an accounting or pay him any of the sums. He sought partition of the properties, an accounting, and the appointment of a receiver.

Pamela and Mrs. Norman answered the complaint. The answer denied the properties were held in joint tenancy or that an accounting was due to Steven. The answer also contained several affirmative defenses including: Mrs. Norman had a life estate in the properties; Steven's property rights vested only upon Mrs. Norman's death; the action was barred by the doctrines of laches, waiver, estoppel, and unclean hands; Steven lacked sufficient interest in the properties to bring a partition action; and any judgment in plaintiff's favor should be reduced by an offset for the maintenance of the properties. As indicated above, while the action was pending, Mrs. Norman died.

The matter proceeded to trial at which the following evidence was introduced. On September 10, 1974, Mrs. Norman's mother, Letizia E. Partiilo, executed two joint tenancy grant deeds for two parcels of real property commonly known as 124 North Maple Street in Burbank and 10302 Fairgrove Avenue in Tujunga. The deeds transferred title to "JANE RE NORMAN, a married woman as her separate property, PAMELA ANN RE, a single woman and STEVEN LEE RE, a single man AS JOINT TENANTS." Mrs. Norman managed the properties until her death in July 1992, at which time Pamela began managing the properties. The parties vigorously disputed whether Pamela and Steven orally agreed with the mother that the two properties really belonged to Mrs. Norman. Pamela testified their grandmother granted the properties to them in joint tenancy in order to defeat any claims by their stepfather, Mrs. Norman's husband, who ultimately predeceased her. In 1989, Mrs. Norman and Steven had a dispute about a loan she had made to Steven for an investment, which he had not repaid. The dispute lead to a threat by Steven to file an action to partition the properties. In response to the threat, on October 6, 1989, Pamela and Mrs. Norman retained counsel and executed two deeds regarding the two properties. The deeds provided: "JANE RE NORMAN ... and PAMELA ANN RE ... as to an undivided two-thirds interest hereby [grants] to JANE RE NORMAN, a widow as her separate property and PAMELA ANN RE, a single woman as Joint Tenants as to an undivided two-thirds interest." Pamela recorded the deeds on July 24, 1992, the day after her mother's death.

During argument to the trial court, Steven contended he was entitled to a one-half interest in the properties because the posthumously recorded deed was insufficient to defeat his right of survivorship based on Civil Code section 683.2, subdivision (c). ⁴ Although the trial court granted the request for partition and ordered the properties sold, the trial court rejected Steven's claim that his rights were not defeated pursuant to section 683.2, subdivision (c). Instead, the trial court concluded subdivision (d) of section 683.2 provided an exception to subdivision (c) and controlled the disposition of the case. In accordance with its conclusion, in addition to other relief, the trial court ordered the proceeds from the sale of properties to be distributed one-third to Steven and two-thirds to Pamela. Steven filed a timely notice of appeal from the judgment.

III. DISCUSSION

A joint tenancy is a unique combination of rights which can only be created by written instrument. (§ 683; ⁵ Estate of MacDonald (1990) 51 Cal.3d 262, 271, 272 Cal.Rptr. 153, 794 P.2d 911; California Trust Co. v. Bennett (1949) 33 Cal.2d 694, 697, 204 P.2d 324; Estate of Seibert (1990) 226 Cal.App.3d 338, 341, 276 Cal.Rptr. 508.) The California Supreme Court has held: "[F]our unities are essential to an estate in joint tenancy: unity of interest, unity of time, unity of title, and unity of possession. [Citations.] [p] The requirement of four unities reflects the basic concept that there is but one estate which is taken jointly; if an essential unity is destroyed the joint tenancy is severed and a tenancy in common results. [Citations.]" (Tenhet v. Boswell (1976) 18 Cal.3d 150, 155, 133 Cal.Rptr. 10, 554 P.2d 330; Hammond v. McArthur (1947) 30 Cal.2d 512, 514, 183 P.2d 1.) Severance of the joint tenancy extinguishes the right of survivorship which is the principal feature of the estate. (Estate of Propst (1990) 50 Cal.3d 448, 455, 268 Cal.Rptr. 114, 788 P.2d 628; Tenhet v. Boswell, supra, 18 Cal.3d at p. 155, 133 Cal.Rptr. 10, 554 P.2d 330.) As our Supreme Court observed in Estate of Propst, supra, 50 Cal.3d at page 455, 268 Cal.Rptr. 114, 788 P.2d 628, " '[A] joint tenant's right of survivorship is an expectancy that is not irrevocably fixed upon the creation of the estate [citation]; it arises only upon success in the ultimate gamble--survival--and then only if the unity of the estate has not theretofore been destroyed by voluntary conveyance [citation]; by partition proceedings [citations], by involuntary alienation under an execution [citations], or by any other action which operates to sever the joint tenancy.' " Section 683.2, ⁶ subdivision (a)(1) and (2) provides that, in addition to any other means, a joint tenancy may be severed by a conveyance of title by a deed to third party. Also, it may be severed by execution of a written instrument that establishes intent to sever the joint tenancy. Here, on October 6, 1989, Pamela and her mother executed grant deeds to one another which stated that they were granting to each other a joint tenancy as to their undivided two-thirds interest in the subject properties. Those deeds showed an intent: to sever the joint tenancy with respect to Steven; to establish a joint tenancy between the mother and daughter to their interests in the property; and to establish a tenancy in common with Steven. (§ 683.2, subd. (a)(1) and (2); Estate of Propst, supra, 50 Cal.3d at p. 455, 268 Cal.Rptr. 114, 788 P.2d 628; Delanoy v. Delanoy (1932) 216 Cal. 23, 26, 13 P.2d 513.)

At issue in this appeal is whether Steven is correct in claiming that the trial court erroneously determined he was only entitled to one-third of an interest in the properties based upon an incorrect interpretation of section 683.2, subdivisions (c) and (d). Citing section 683.2 subdivision (c), Steven contends his right of survivorship was not defeated because the grant deeds were not recorded prior to his mother's death. Section 683.2 subdivisions (c) provides: "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: [p] (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. [p] (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." Pamela counters the trial court properly determined that section 683.2 subdivision (d)(3) provides an exception to the recording requirement contained in subdivision (c) for conveyances among joint tenants. Section 683.2 subdivision (d)(3) provides: "Nothing in subdivision (c) limits the manner or effect of: [p] ... [p] (3) A deed from a joint tenant to another joint tenant."

Resolution of this dispute requires a determination of the meaning of these two subdivisions of section 683.2, which presents a question of law. (Burden v. Snowden (1992) 2 Cal.4th 556, 562, 7 Cal.Rptr.2d 531, 828 P.2d 672; California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699, 170 Cal.Rptr. 817, 621 P.2d 856.) An appellate court independently determines the proper interpretation of a statute and is not bound by the trial judge's interpretation. (Burden v. Snowden, supra, 2 Cal.4th at p. 562, 7 Cal.Rptr.2d 531, 828 P.2d 672; California Teachers Assn. v. San Diego Community College Dist., supra, 28 Cal.3d at p. 699, 170 Cal.Rptr. 817, 621 P.2d 856.) The reviewing court begins its analysis with the fundamental rule which requires an ascertainment of the intent of the Legislature so as to effectuate the purpose of the statute. (In re Christopher R. (1993) 6 Cal.4th 86, 91, 23 Cal.Rptr.2d 786, 859 P.2d 1301; Woosley v. State...