Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. RIC305649, Richard G. Van Frank, Gary B. Tranbarger, and Craig Riemer, Judges.
Jeffrey S. Mintz for Cross-defendant and Appellant.
Law Offices of Marc A. Zimmerman and Marc A. Zimmerman for Cross-complainant and Respondent.
OPINION
King, J.
I. INTRODUCTION
In this action, Torab Ahmadi (Mike) filed a first amended cross-complaint (FACC) seeking to quiet title to an undivided one-half interest in a five-acre Sun City property against Paul Alford (Alford) and his parents, Lore and Mildred Alford. Mike obtained a default judgment against Alford and moved for summary judgment against Lore and Mildred Alford. The trial court granted the motion. Earlier, the trial court overruled both Alford’s and his parents’ general demurrers to the FACC.
Lore and Mildred Alford died before judgment could be entered in favor of Mike on his FACC. A judgment was eventually entered in favor of Mike and against Lore and Mildred Alford, their personal representatives, heirs, and successors in interest. Alford succeeded to his parents’ interest in this litigation as the trustee of the Alford Family Trust (the Trustee). The Trustee appeals, claiming the summary judgment was erroneously granted and his parents’ demurrer to the FACC was erroneously overruled. We affirm.
Because Mike obtained a default judgment on his FACC against Alford in his individual capacity, Alford’s claims on this appeal in his capacity as Trustee of the Alford Family Trust should not be confused with any claims he may have asserted in his individual capacity.
II. SUMMARY OF FACTS, CONTENTIONS, AND CONCLUSIONS
In September 1990, Mike and Fred Jaleh (Fred), who is not a party to this appeal, each held undivided one-half interests in the Sun City property as joint tenants. That month, a judgment lien was created against Fred’s interest in the property. In 1994, the Riverside County sheriff conducted an execution sale to foreclose on the 1990 judgment lien against Fred’s interest in the property. Alford was the purchaser at the execution sale. The sheriff’s deed states that Alford purchased Fred’s interest in the property.
In 1992 and before the 1994 execution sale, Fred transferred his one-half interest to Mike, and Mike transferred the entire Sun City property to Apex Limited, a limited partnership (Apex). At the time of the 1994 execution sale, title to the entire property was held in the name of Apex. But by the time Mike filed his FACC for quiet title in July 1998, Mike had caused Apex to transfer an undivided one-half interest in the property to Mike. Thus, at the time Mike filed his FACC in July 1998, Mike held an undivided one-half interest in the property, the same interest he held at the time the judgment lien was created against Fred’s undivided one-half interest.
Alford claimed he purchased the entire property at the 1994 execution sale, including Mike’s former one-half interest. In December 1997, Alford transferred his interest in the property to his parents. In his FACC for quiet title, Mike named Alford as a cross-defendant and later named Alford’s parents as additional cross-defendants. Alford failed to answer the FACC and Mike obtained a default judgment against him. Mike then successfully moved for summary judgment against Lore and Mildred Alford. Earlier, the trial court overruled Lore and Mildred Alford’s general demurrer to the FACC. Lore and Mildred Alford later died, and Alford succeeded to their interest in the property as Trustee of the Alford Family Trust.
On this appeal, the Trustee claims the summary judgment was erroneously granted because he purchased the entire Sun City property at the 1994 execution sale. We disagree. Based on relevant provisions of the Enforcement of Judgments Law (Code Civ. Proc., § 680.010 et seq.) and the undisputed facts, we conclude that Alford purchased Fred’s one-half interest in the property at the execution sale and nothing more. In addition, Mike has demonstrated that he owned an undivided one-half interest in the property at the time the judgment lien was created against Fred’s interest in September 1990, and owned the same interest at the time he filed his FACC for quiet title.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
The Trustee also claims the FACC failed to state a cause of action for quiet title and, therefore, the summary judgment was erroneously granted and his parents’ earlier demurrer to the FACC was erroneously overruled. The Trustee maintains that, because title to the entire property was held in the name of Apex at the time Mike filed his original cross-complaint and Mike only later caused Apex to transfer a one-half interest to himself, Mike’s quiet title claim is impermissibly based on an “after-acquired title.” We also reject this claim. The FACC stated a claim for quiet title.
The Trustee raises various additional arguments that are either not cognizable on this appeal because they were not raised in the trial court, or are otherwise without merit. In this regard, we deny the Trustee’s request that we take judicial notice of various documents that were not presented to the trial court on Mike’s motion for summary judgment or on his parents’ demurrer to the FACC.
III. FACTS AND PROCEDURAL HISTORY
The following facts are undisputed and are effectively set forth in the papers filed in support of and in opposition to Mike’s motion for summary judgment. By a deed recorded in 1981, Devon Lockhart conveyed the entire Sun City property to Mike and Fred, as joint tenants, each with an undivided one-half interest. In July 1990, a money judgment against Fred and others, but not Mike, was entered in the Riverside County Superior Court in case No. 193906, Bechtel et al. v. Fisher and Associates et al. (the Bechtel judgment). In September 1990, an abstract of the Bechtel judgment was recorded in Riverside County as instrument No. 90-328983.
By a grant deed executed on June 29, 1992, and without satisfying any part of the Bechtel judgment, Fred conveyed his one-half interest in the Sun City property to Mike. The deed was recorded on July 21, 1992. In December 1992, Mike executed and recorded a grand deed conveying the entire Sun City property to Apex. Mike was the general partner of Apex. Mike held one percent general partnership interest in Apex and a 94 percent limited partnership interest. Fred held the other five percent limited partnership interest in Apex.
In January 1994, a writ of execution and notice of levy, based on the Bechtel judgment, were recorded against the Sun City property. A notice of sale was later recorded, and in August 1994, the Riverside County sheriff sold the property to Alford at an execution sale. A sheriff’s deed conveying the judgment debtor’s interest in the property to Alford was recorded on January 18, 1995, as instrument No. 95-015637, and was delivered to Alford.
In March 1997, Fred instituted the present action by filing a complaint against Alford and others in the Orange County Superior Court. Among other claims, Fred asserted he owed no money on the Bechtel judgment and other judgments in which Alford had acquired an interest. The action was transferred to the Riverside County Superior Court after Alford moved to change venue. Thereafter, Alford demurred to Fred’s complaint. The demurrer was sustained without leave to amend, and Fred’s complaint was ordered stricken.
In December 1997, and before Fred’s complaint was ordered stricken, Alford cross-complained against Fred and others, including Mike. Among other claims, Alford asserted that Fred had fraudulently conveyed his interest in the Sun City property to Mike and that Mike had then fraudulently conveyed the entire Sun City property to Apex in an attempt to conceal Fred’s assets from creditors. Also in December 1997, Alford conveyed his entire interest in the Sun City property to his parents, Lore and Mildred Alford.
In April 1998, Mike filed a cross-complaint against Alford, seeking to quiet title in himself to his original undivided one-half interest in the Sun City property. Alford generally demurred to Mike’s original cross-complaint, and the demurrer was sustained with leave to amend on the ground Mike was alleging he had an equitable interest in the property rather than a present legal interest.
The trial court explained: “[I]t is possible to plead quiet title of an equitable interest. However, the plaintiff cannot, under the general allegations of ownership, obtain a judgment establishing an equitable interest against the holder of legal title. [¶] The reasons are, one, the allegation of ownership in the plaintiff is not sustained by proof that the defendant is the owner subject to the plaintiff’s equity. And two, the plaintiff who attacks the legal title on equitable grounds is, in effect, contending that the defendant obtained legal title by fraud or similar inequitable conduct, and must specifically allege the facts constituting that conduct.” (See Kroeker v. Hurlbert (1940) 38 Cal.App.2d 261, 265-266.)
Thereafter, by a deed executed on June 29, 1998, and recorded on July 21, 1998, Mike, as the general partner of Apex, caused Apex to convey a one-half undivided interest in the property to himself. Mike then filed the FACC against Alford and attached the deed from Apex to himself as an exhibit. Alford demurred to the FACC on the ground Mike’s quiet title claim was based on an “after-acquired” legal title to the property. This demurrer was also overruled. Mike later verified his FACC. Alford failed to answer the FACC, and the trial court eventually entered a default judgment against Alford on Mike’s FACC.
In 1999, Mike named Alford’s parents, Lore and Mildred Alford, as additional cross-defendants following Alford’s December 1997 transfer of his entire interest in the property to his parents. Lore and Mildred Alford then demurred to the FACC, raising the same “after-acquired title” argument that Alford asserted in his demurrer to the FACC. Lore and Mildred Alford’s demurrer was also overruled.
In September 2000, Mike moved for summary judgment on his FACC for quiet title against Lore and Mildred Alford. Opposition and reply papers were filed. After hearing, the court granted the motion. Thereafter, Lore and Mildred Alford died, and Alford succeeded to their interest in the Sun City property in his capacity as Trustee of the Alford Family Trust.
In November 2006, the trial court finally entered judgment in favor of Mike on his FACC. The judgment quieted title in Mike to an undivided one-half interest in the Sun City property against Lore and Mildred Alford and their successors in interest. Alford appealed the judgment in his capacity as Trustee of the Alford Family Trust.
IV. DISCUSSION
The Trustee claims that the trial court erroneously granted Mike’s motion for summary judgment on his FACC for quiet title. For various reasons discussed below, the Trustee claims he purchased the entire property at the 1994 execution sale. The Trustee further claims the motion was erroneously granted and his parents’ earlier demurrer to the FACC was erroneously overruled, because the FACC is impermissibly based on Mike’s “after-acquired title” to the property, that is, the title that Apex conveyed to Mike after Mike filed his original cross-complaint. The Trustee raises various additional arguments which we find without merit. We first address the merits of Mike’s motion for summary judgment. We then address the Trustee’s various claims.
A. Mike’s Motion for Summary Judgment Was Properly Granted
1. Standard of Review
The applicable procedures and standard of review on appeal governing motions for summary judgment are well settled. The law of summary judgment, set forth in section 437c, provides courts with a mechanism to “cut through” the parties’ pleadings to determine whether, despite their allegations, trial is necessary to resolve the parties’ dispute. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) Summary judgment is properly granted when there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (§ 437c, subd. (c).)
A plaintiff may move for summary judgment on a cause of action on the grounds there is no defense to the cause of action and the plaintiff is entitled to judgment on the cause of action as a matter of law. (Aguilar, supra, 25 Cal.4th at p. 843; § 437c, subd. (a).) The plaintiff has the burden of proof on his motion, and meets his burden if he demonstrates each element of his cause of action entitling him to judgment. (§ 437c, subd. (p)(1); Aguilar, supra, at p. 849.) The plaintiff must support his motion with evidence, including affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice must or may be taken. (Aguilar, supra, at p. 843; § 437c, subd. (b)(1).) Once the plaintiff has met this burden, the burden shifts to the defendant to show there are one or more triable issues of material fact on one or more elements of the plaintiff’s cause of action or a defense thereto. The defendant may not rely upon the mere allegations or denials in his pleadings, but must “‘set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.’” (§ 437c, subd. (p)(1); Aguilar, supra, at p. 849.)
The trial court is required to grant the motion “if all the papers . . . show” there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (§ 437c, subd. (c).) On appeal, we independently assess the correctness of the trial court’s ruling on the motion for summary judgment. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) “‘[W]e construe the moving party’s affidavits strictly, construe the opponent’s affidavits liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it.’” (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1201-1202.)
2. Mike’s FACC for Quiet Title
The object of a quiet title action is to finally settle and determine, as among the plaintiff and all other parties to the action, the parties’ conflicting claims to the property in controversy, “‘and to decree to each such interest or estate therein as he may be entitled to.’” (Lechuza Villas West v. California Coastal Com. (1997) 60 Cal.App.4th 218, 242, quoting Peterson v. Gibbs (1905) 147 Cal. 1, 5.)
In keeping with this objective, a complaint for quiet title must be verified and include (1) a description of the property that is the subject of the action, and in the case of real property, its legal description and street address or common designation, if any; (2) the title of the plaintiff as to which a determination is sought and the basis of the title; (3) the adverse claims to the title of the plaintiff against which a determination is sought; (4) the date as of which the determination is sought; and (5) a prayer for the determination of the title of the plaintiff against the adverse claims. (§ 761.020.) The answer to a complaint for quiet title must also be verified and set forth (1) any claim the defendant has; (2) any facts tending to controvert any material allegations of the complaint the defendant does not wish to be taken as true; and (3) a statement of any new matter constituting a defense. (§ 761.030.)
By his FACC for quiet title, Mike sought a determination that he was entitled to an undivided one-half interest in the property, free and clear of any interest the Alfords had in the property as a result of the 1994 execution sale. The question before this court is whether the undisputed facts show that Mike is entitled to an undivided one-half interest in the property, free and clear of the Trustee’s interest in the property.
The undisputed facts presented on Mike’s motion for summary judgment show that, as between Mike and the Trustee, the Trustee is entitled to an undivided one-half interest in the property and Mike is entitled to the other one-half interest in the property. Our conclusion is based on the application to the undisputed facts of relevant provisions of the Enforcement of Judgments Law (§ 680.010 et seq.) and laws governing encumbrances against property held by cotenant, discussed below.
3. Analysis/Mike’s and the Trustee’s Interests in the Property
We begin our analysis with the recordation, in September 1990, of the abstract of the Bechtel judgment with the Riverside County Recorder’s Office. When the abstract of judgment was recorded, Fred and Mike each held undivided one-half interests in the property as joint tenants. The recording of the abstract created a judgment lien on Fred’s undivided one-half interest in the Sun City property (§§ 697.310, subd. (a), 697.340, subd. (a); Federal Deposit Ins. Corp. v. Charlton (1993) 17 Cal.App.4th 1066, 1069), but it did not encumber or otherwise affect Mike’s interest in the property.
It is settled that, when property is held in cotenancy (that is, either by joint tenants or tenants in common), a cotenant may encumber his separate, albeit undivided, interest in the property without the consent of and without affecting the interests of the other tenants. (Dieden v. Schmidt (2002) 104 Cal.App.4th 645, 650, citing Schoenfeld v. Norberg (1970) 11 Cal.App.3d 755, 765.) As a corollary to this rule, a judgment creditor may enforce his judgment against the interest of the debtor tenant but cannot encumber or otherwise affect the interests of other, nondebtor tenants. (Dieden v. Schmidt, supra, at p. 651, citing Rupp v. Kahn (1966) 246 Cal.App.2d 188, 195.) It follows that the September 1990 judgment lien did not encumber the interest that Mike held in the property; it only encumbered Fred’s interest.
Furthermore, the judgment lien continued to encumber Fred’s interest in the property, following Fred’s purported conveyance of his entire interest to Mike in January 1992 and Mike’s conveyance of the entire property to Apex in December 1992. (Dieden v. Schmidt, supra, 104 Cal.App.4th at pp. 651-652; § 697.390, sub. (a) [a subsequent conveyance or encumbrance of an interest in real property subject to a judgment lien does not affect the lien].) “When real property encumbered by a duly recorded abstract of judgment is transferred, the transferees are charged with constructive knowledge of the encumbrance and they take title to the property subject to the lien created by the abstract, not as bona fide purchasers.” (Federal Deposit Ins. Corp. v. Charlton, supra, 17 Cal.App.4th at p. 1069.) Accordingly, the judgment lien remained enforceable against Fred’s undivided one-half interest in the property “in the same manner and to the same extent as if [the property] had not been transferred . . . .” (§ 695.070.)
In January 1994, the judgment creditor took action to enforce and foreclose upon the judgment lien by levying on Fred’s interest in the Sun City property. (§ 700.015, subd. (a) [to levy on real property, levying officer shall record copy of writ of execution and notice of levy describing the real property levied upon and stating that the judgment debtor’s interest in the real property has been levied upon].) Within the context of an execution on real property, a levy “is merely ‘the act by which property to be taken and sold is designated or set aside.’ [Citations.]” (Grothe v. Cortlandt Corp. (1992) 11 Cal.App.4th 1313, 1320.) A notice of sale was later recorded, and Fred’s interest in the property was sold to Alford at an execution sale in August 1994. In January 1995, the sheriff recorded and delivered a sheriff’s deed to Alford, conveying to Alford “the judgment debtor’s right, title, and interest in the real property . . . .”
At the 1994 execution sale, Alford acquired the undivided one-half interest that Fred held at the time the judgment lien was created in September 1990, and nothing more. Section 701.640 states: “The purchaser of property at an execution sale acquires any interest of the judgment debtor in the property sold (1) that is held on the effective date of the lien under which the property was sold or (2) that is acquired between such effective date and the date of sale.” (See also Noble v. Beach (1942) 21 Cal.2d 91, 94 [sale by sheriff has same force and effect as a conveyance by judgment debtor in the form of a quitclaim deed at date of sale].) Fred never acquired a greater interest in the property than the interest he held in September 1990 when the abstract was recorded and the judgment lien was created against his interest. Thus, Alford never acquired a greater interest in the property than Fred’s original, undivided one-half interest.
Lore and Mildred Alford succeeded to Alford’s interest in the property when Alford transferred his entire interest in the property to Lore and Mildred Alford in December 1997. Thereafter, Lore and Mildred Alford died, and Alford succeeded to their (and his original) interest in the property in his capacity as Trustee of the Alford Family Trust.
Thus, Alford, in his capacity as Trustee of the Alford Family Trust, is entitled to the undivided one-half interest in the property that he purchased at the 1994 execution sale. Mike is entitled to the other undivided one-half interest. As discussed, the judgment lien did not encumber the one-half interest Mike held at the time the judgment lien was created in 1990, Alford purchased no part of Mike’s interest at the 1994 execution sale, and Mike held the same interest at the time he filed his FACC in 1998.
On this record, Mike and the Trustee hold the property as tenants in common, each as to an undivided one-half interest. (Zeigler v. Bonnell (1942) 52 Cal.App.2d 217, 219 [upon purchase of interest of one joint tenant at execution sale, the purchaser and the other joint tenant or tenants become tenants in common]; Civ. Code, §§ 685, 686.)
B. The Trustee’s Claims
The Trustee contends that for various reasons the summary judgment in favor of Mike was erroneously granted and his parents’ earlier demurrer to the FACC was erroneously overruled. We now address these claims.
1. The Trustee’s Claim to the Entire Property
The Trustee first argues he purchased the entire Sun City property at the 1994 execution sale, including Mike’s original undivided one-half interest. We reject this claim.
First, the Trustee correctly points out that the joint tenancy between Mike and Fred was severed in June 1992 when Fred conveyed his (encumbered) one-half interest in the property to Mike. Second, the Trustee correctly observes that, at the time of the 1994 execution sale, title to the entire Sun City property was held by one owner, Apex. But the Trustee also asserts, without citing any supporting authority, that “[w]here a full undivided title to 100% of the property is held by the owner at the time the property is levied upon and the judgment lien foreclosed, it is the entire property as security for the judgment under the present statutory scheme which is sold . . . .” (Italics added.)
A joint tenancy is an interest owned by two or more persons who have equal interests among themselves. (Civ. Code, § 683; Grothe v. Cortlandt Corp. supra, 11 Cal.App.4th at p. 1317.) “A distinctive feature of joint tenancy . . . is the right of survivorship. This means that when one joint tenant dies, the entire estate belongs automatically to the surviving joint tenant(s). [Citations.] Nothing ‘passes’ from the deceased joint tenant to the survivor; rather, the survivor takes from the instrument by which the joint tenancy was created. [Citations.]” (Grothe v. Cortlandt Corp., supra, at p. 1317.) Joint tenants must share unity of time, title, interest, and possession, and the joint tenancy is severed if one of these four unities is destroyed before the death of a joint tenant. “‘A joint tenancy [may be] terminated by a voluntary conveyance . . . .’” (Ibid.)
This argument fails because it utterly disregards the rule, discussed above, that a judgment lien encumbering a debtor tenant’s interest in property does not encumber the interest of a nondebtor tenant. (Dieden v. Schmidt, supra, 104 Cal.App.4th at p. 650.) As also discussed, a transfer of property following the creation of a judgment lien on the property does not affect the judgment lien. (§ 697.390, subd. (a).) In addition, the Enforcement of Judgments Law (§ 680.010 et seq.) contemplates that property may be held in the name of a third person, not the judgment debtor, at the time the property is levied upon and sold. (§ 700.015, subd. (a).)
In this event, the notice of levy is to identify the third person and the recorder is to index the copy of the writ and notice of levy in the names of both the judgment debtor and the third person. (§ 700.015, subd. (a).) The third person is also to be served, either personally or by mail, with copies of the writ and notice of levy. (Id., subd. (b).)
The Trustee next argues that under “the present statutory scheme,” by which he means the Enforcement of Judgments Law as enacted in 1982, Apex had a duty to either satisfy the judgment lien before the sale, claim an exemption from the sale, or “suffer the consequences of foreclosure on its property.” First, Apex did in fact “suffer the consequences” of foreclosure on the Sun City property when it lost one-half of its nominal title to the property when Alford purchased that interest at the execution sale.
Moreover, whether Apex failed to comply with section 701.010 et seq. regarding the duties and liabilities of third persons after levy—and the effect, if any, of Apex’s actions or inactions in this regard on the rights and liabilities of Mike and the Trustee—is not an issue before this court. In the papers submitted on Mike’s motion for summary judgment, there was no showing that Apex was served with a copy of the writ of execution and a notice of levy on the Sun City property, and service of these documents on Apex was a precondition to Apex’s duties, if any, to comply with the requirements of section 701.010 et seq. (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19 [in reviewing a trial court’s ruling on a motion for summary judgment, an appellate court can only consider the evidence presented to the trial court and cannot consider evidence submitted later or for the first time on appeal].)
The Trustee further argues that section 701.640, when read in harmony with section 701.680, means that the entire Sun City property was “conclusively conveyed to Alford” at the execution sale. Section 701.640 states that “[t]he purchaser of property at an execution sale acquires any interest of the judgment debtor in the property sold (1) that is held on the effective date of the lien under which the property was sold or (2) that is acquired between such effective date and the date of sale.” And section 701.680 states that an execution sale is “absolute” and “may not be set aside for any reason” except in circumstances not applicable here. (Gonzalez v. Toews (2003) 111 Cal.App.4th 977, 981 [interpreting § 701.680].)
The Trustee’s argument merely assumes that Alford purchased the entire Sun City property at the execution sale; however, for the reasons discussed, the undisputed facts show that Alford only purchased Fred’s original one-half interest in the property at the execution sale. The finality of sale rule set forth in section 701.760 only applies to the interest purchased at the execution sale, that is, Fred’s interest. Sections 701.640 and 701.680 are entirely consistent with this conclusion.
2. The Trustee’s After-acquired Title Argument
The Trustee claims that because Mike did not have a “present legal interest” in the property at the time he filed his original cross-complaint for quiet title in April 1998, the “after-acquired title doctrine” prevents him from fixing this “fatal defect” in his cause of action for quiet title. More specifically, the Trustee argues that Mike’s FACC did not state a claim for quiet title because it did not allege that Mike held an interest in the property at the time he filed his original cross-complaint for quiet title. We reject this claim.
(a) Applicable Law
The so-called “after-acquired title doctrine” is based on case law that predates the enactment, in 1980, of sections 760.010 through 765.060, which govern actions for quiet title. The after-acquired title doctrine holds that a plaintiff cannot state a claim for quiet title unless he holds a legal interest in the property at the time he commences his action. (See Reed v. Hayward (1943) 23 Cal.2d 336, 340; Moakley v. Los Angeles Pacific Ry. Co. (1934) 139 Cal.App. 421, 427.) Nor may the plaintiff supplement his complaint to allege an after-acquired title, if in fact he did not hold title at the time he filed his original complaint. (Rowley v. Davis (1917) 34 Cal.App. 184, 188.) The reason for this rule is elemental: a plaintiff who does not have title at the time he commences his action for quiet title or seeks to quiet title is unable to prove his claim. (Pacific States Sav. & Loan Co. v. Warden (1941) 18 Cal.2d 757, 759.)
It has also been held that a party seeking to quiet title must stand on the strength of his title and not the weakness of the opposing party’s claim. (Millyard v. Faus (1968) 268 Cal.App.2d 76, 82, citing Knoke v. Knight (1929) 206 Cal. 225; Sears v. Willard (1913) 165 Cal. 12, 13; Mandel v. Great Lakes Oil Etc. Co. (1957) 150 Cal.App.2d 621, 626.) Thus, a plaintiff cannot merely allege that the defendant is asserting an interest in property to which the defendant has no title. (Sears v. Willard, supra, at p. 13; Williams v. City of San Pedro Etc. Co. (1908) 153 Cal. 44, 49.) The plaintiff’s lack of title makes it unnecessary to examine or determine the nature of the defendant’s title. (Wagner v. Worrell (1946) 76 Cal.App.2d 172, 179-180.)
The after-acquired title doctrine is based on the assumption that, at the time the plaintiff commences his action, he is at that time seeking to quiet title in the property in question. (See, e.g., Reed v. Hayward, supra, 23 Cal.2d at p. 340 [after-acquired title doctrine not applicable where plaintiff’s quiet title claim was based on title to inherited property which, although subject to probate administration at the time the plaintiff filed his complaint, would likely vest in plaintiff by the time of trial]; see also Rowley v. Davis, supra, 34 Cal.App. at p. 188 [plaintiff may raise after-acquired title as defense to cross-complaint if plaintiff had title when cross-complaint filed].) Logically, if a plaintiff seeks to quiet title to property at a time he does not hold a legal interest in the property, he cannot prove his claim and the allegations of his complaint fail to state a prima facie claim or cause of action for quiet title.
In 1980, long after the decisions applying or distinguishing the after-acquired title doctrine were decided, the Legislature enacted section 761.020. (Stats. 1980, ch. 44, § 15, p. 110.) The statute provides that a complaint for quiet title shall include, among other things, “[t]he title of the plaintiff as to which a determination . . . is sought and the basis of the title,” “[t]he adverse claims to the title of the plaintiff against which a determination is sought,” and “[t]he date as of which the determination is sought.” (§ 761.020, subds. (b), (c), (d).) The statute also provides that, “If the determination is sought as of a date other than the date the complaint is filed, the complaint shall include a statement of the reasons why a determination as of that date is sought.” (Id., subd. (d).) The pleading requirements of section 761.020 contemplate situations in which the date the complaint is filed does not coincide with the date the plaintiff holds an interest in the property and seeks to quiet title to his interest in the property.
(b) Analysis
It is undisputed that Mike did not hold legal title to any part of the Sun City property when he filed his original cross-complaint for quiet title in April 1998. At that time, Apex held at least nominal title to the entire Sun City property. Although Mike’s original cross-complaint alleged he held an undivided one-half interest in the property when the judgment lien was recorded in September 1990, that allegation was not sufficient to state a quiet title claim against Alford in April 1998. For this reason, the trial court properly sustained Alford’s general demurrer to Mike’s original cross-complaint. (Lazar v. Hertz. Corp. (1999) 69 Cal.App.4th 1494, 1501 [general demurrer properly sustained when complaint fails to state cause of action].)
By a deed executed in June 1998 and recorded in July 1998, Mike, as the general partner of Apex, caused Apex to convey an undivided one-half interest in the property to himself in his individual capacity. Thereafter, Mike filed his FACC and based his quiet title claim on the undivided one-half interest he originally held in September 1990, which was, in effect, the same interest he held as of July 1998. The FACC thus stated a cause of action for quiet title, and was in compliance with the general pleading requirements of section 761.020. Accordingly, the general demurrers to the FACC by Alford and his parents were properly overruled. (Kramer v. Intuit Inc. (2004) 121 Cal.App.4th 574, 578 [general demurrer properly overruled when complaint, liberally construed, states a cause of action].)
3. The Trustee’s Other Claims
(a) The Validity of the June 1998 Deed
The Trustee claims the June 1998 deed from Apex to Mike was invalid because Apex was not authorized to do business in California at the time it executed the deed. For this reason, the Trustee argues that Mike’s FACC did not state a quiet title claim and his motion for summary judgment was erroneously granted. In support of this claim, the Trustee notes that, in opposing Alford’s demurrer to Mike’s original cross-complaint, Mike submitted a declaration which, although not properly presented in opposition to the demurrer, stated that Apex had dissolved in 1996—two years before Apex executed the deed to Mike in June 1998. In addition, the Trustee requests that this court take judicial notice, for the first time on appeal, of uncertified documents which the Trustee claims were issued by the Nevada Secretary of State and which purport to show that Apex was “permanently suspended as a Nevada partnership in [2003] after its default in 1997.” We reject the Trustee’s argument and deny his request for judicial notice.
First, the Trustee’s claim is not cognizable on the issue of whether Mike’s motion for summary judgment was properly granted, because it is not based on evidence that was presented to the trial court on the motion. In reviewing a trial court’s ruling on a motion for summary judgment, an appellate court may only consider the evidence before the trial court and cannot consider evidence submitted later or for the first time on appeal. (Szadolci v. Hollywood Park Operating Co., supra, 14 Cal.App.4th at p. 19.) Instead, “we examine the facts presented to the trial court and determine their effect as a matter of law.” (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 464.) Because the Trustee’s claim is not based on evidence presented to the trial court on the motion for summary judgment, we cannot consider that evidence on our review of the order granting the motion.
Nor was the evidence the Trustee relies upon properly presented to the trial court on Alford’s or his parents’ demurrers to the FACC. In ruling on the demurrers, the trial court was authorized to consider only the allegations of the FACC and matters of which the court must or may take judicial notice. (§ 430.30, subd. (a).) This constraint applies with equal force to this court’s review of the trial court’s ruling on the demurrer.
Mike’s declaration neither was nor could have been properly considered by the trial court in ruling on the demurrers to the FACC. The declaration was not made part of the FACC and its contents are not a proper subject of judicial notice because the statements in the declaration, and their import for purposes of the validity of the June 1998 Apex deed, are not beyond reasonable dispute. (Evid. Code, § 452, subd. (g); Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113 [“Although the existence of a document may be judicially noticeable, the truth of statements contained in the document . . . are not subject to judicial notice if those matters are reasonably disputable”].) Nor are the contents of the Nevada Secretary of State documents reasonably beyond dispute, insofar as those documents purport to show that Apex was not authorized to conduct business in California at the time it executed the June 1998 deed to Mike. (Fremont Indemnity Co. v. Fremont General Corp., supra, at p. 113.)
We further observe that “‘[r]eviewing courts generally do not take judicial notice of evidence not presented to the trial court.’” (Violante v. Communities Southwest Development & Construction Co. (2006) 138 Cal.App.4th 972, 978 citing Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813; Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3; Evid. Code, §§ 452 subd. (h), 459.) “[E]xceptional circumstances [must] exist that would justify deviating from that rule . . . .” (Vons Companies, Inc. v. Seabest Foods, Inc., supra, at p. 444, fn. 3.) The Trustee has presented no exceptional circumstances that would justify this court’s deviation from the general rule.
(b) The Unclean Hands Argument
Lastly, the Trustee claims Mike has “unclean hands” based on his association with Fred, and for this reason we should reverse the judgment in favor of Mike. In support of this claim, the Trustee asks that we take judicial notice of deeds showing that, on June 29, 1992, the same date Fred conveyed his one-half interest in the Sun City property to Mike, Fred transferred his interests in three other properties to Mike, and Mike later conveyed the same properties to Apex and another business entity, Gen Par Limited. The Trustee merely questions whether these other property transfers were made in fraud of Fred’s creditors, but he has not demonstrated that any of the transfers were in fraud of Fred’s creditors, either in the trial court or in this court. For this reason, we deny Alford’s request that we take judicial notice of the deeds from Fred to Mike and from Mike to Apex and Gen Par Limited.
V. DISPOSITION
The judgment is affirmed. Respondent shall recover his costs on appeal.
We concur: Ramirez, P.J. Richli, J.
Thus here, the joint tenancy was indeed severed in July 1992 when Fred conveyed his (encumbered) one-half interest to Mike. By contrast, the creation of the judgment lien against Fred’s interest in September 1990 did not sever the joint tenancy. “[T]he mere imposition of a lien or encumbrance does not sever the joint tenancy.” (Grothe v. Cortlandt Corp, supra, 11 Cal.App.4th at p. 1318, citing Tenhet v. Boswell (1976) 18 Cal.3d 150, 159-160.)