ORIGINAL PROCEEDINGS: Writ of Mandate. Carter P. Holly, Judge. Writ issued. (Super. Ct. No.CV027998)
The opinion of the court was delivered by: Mauro , J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Plaintiffs Roger and Annette Elissagaray initiated this lawsuit seeking to quiet title to a five-acre parcel of undeveloped real property in Tracy, California. The trial court subsequently denied a motion for summary judgment filed by defendant Hacienda Ranch Homes, Inc. (Hacienda), concluding there are triable issues of material fact as to whether the Elissagarays established adverse possession of the property under a claim of right.
Hacienda now seeks a writ of mandate, arguing that the Elissagarays cannot establish ouster as a matter of law. This court stayed proceedings in the trial court and issued an alternative writ.
We conclude there is no evidence that the Elissagarays ousted the other cotenants to establish adverse possession under a claim of right, and hence no triable issue of material fact. We will issue a peremptory writ.
Hacienda acquired an undivided 50 percent interest in the property in 1985. Defendants Stanley and Geurtje Boersma owned the other undivided 50 percent interest. Several years later, Hacienda transferred 49 percent of its undivided 50 percent interest (or 24.5 percent) to Helen Tyler, leaving Hacienda with an undivided 25.5 percent interest in the property.
In November 1998, San Joaquin County recorded a notice of power to sell tax-defaulted property. The notice identified the property to be sold as "an undivided 24.5% interest in and to" the subject property. The Elissagarays purchased their undivided 24.5 percent interest in the property at the tax sale on May 20, 1999. San Joaquin County recorded a tax deed on June 9, 1999, granting to the Elissagarays "an undivided 24.5% interest in and to" the property. A corrected tax deed granting "an undivided 24.5% interest in and to" the property to the Elissagarays recorded on May 24, 2000.
The Elissagarays filed their complaint to quiet title in 2005, alleging that they purchased the property at public auction on May 20, 1999, and, since that time, "openly and exclusively occupied and possessed" the property to the exclusion of the prior owners, none of whom had asserted any interest in or claim to the property. The complaint sought a judgment affirming the Elissagarays as fee simple owners of 100 percent of the property.
In 2007, Hacienda filed its first summary judgment motion. Hacienda argued the tax deed to the property was unambiguous in conveying an undivided 24.5 percent interest in the property to the Elissagarays who, therefore, did not have color of title. As such, the Elissagarays had the burden to establish their adverse possession claim to the remaining undivided 75.5 percent interest in the property by claim of right, which Hacienda argued the Elissagarays could not do because they did not enclose, cultivate or improve the property as required by Code of Civil Procedure section 325,*fn2 and there was no evidence of ouster.
On September 17, 2007, the trial court issued an order denying Hacienda's first summary judgment motion without prejudice. The trial court found triable issues of material fact regarding "what interest in the subject property [the Elissagarays] purchased at the tax sale," and "whether [the Elissagarays] established adverse possession of the subject property."
The parties agreed to a bifurcated trial and to submit on the written briefs as to phase one of the trial dealing with the extent of the interest in the property conveyed to the Elissagarays by the tax deed, and the effect, if any, of the applicable statutes of limitation on the Elissagarays' claim challenging the tax deed.
The trial court found that the tax deed was unambiguous and that the Elissagarays "acquired a 24.5% interest only" in the property. The trial court also determined that the Elissagarays' claim challenging the tax deed was barred by the one-year statute of limitation set forth in Revenue and Taxation Code sections 3725 and 3726.
On December 10, 2009, Hacienda filed a second summary judgment motion, arguing that the Elissagarays were tenants in common with Hacienda and the Boersmas; that the tax deed was unambiguous in conveying title to an undivided 24.5 percent interest only and thus the Elissagarays lacked color of title as a matter of law; and that the Elissagarays could not, as a matter of law, establish adverse possession of 100 percent of the subject property because they could not establish "acts of ownership of the most open, ...