Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCV-236432.
SIMONS, Acting P.J.
Defendant Ruth R. Asrican (Asrican), the surviving spouse of deceased judgment debtor Phill Asrican (decedent), appeals from a judgment granting the motion of plaintiff and judgment creditor Teryl J. Allen (Allen) to enforce a judgment lien against decedent’s property (Prob. Code, § 9391). Asrican contends that Allen is not entitled to collect her lien against the subject property because (1) the property was held in joint tenancy or tenancy in common at the time Allen’s judgment lien attached, (2) the trial court erred in excluding evidence of decedent’s and Asrican’s intent in determining whether the property was held in joint tenancy, (3) Asrican is not the proper defendant in Allen’s enforcement action, and (4) Allen did not properly serve the notice of renewal of the underlying judgment. We reject Asrican’s contentions and affirm.
BACKGROUND
The Underlying Suit
The underlying suit arose from a dispute over the sale of a dentistry business. In July 1992, decedent sold his dentistry business to Allen for $80,000. In July 1993, Allen filed suit against decedent for breach of contract, rescission, and fraud. The trial court entered a $140,525 money judgment against decedent on December 30, 1994. Allen recorded an abstract of judgment on February 16, 1995, thereby placing a judgment lien on decedent’s real property (Code Civ. Proc., § 697.310).
Decedent died on August 12, 2000. No probate proceedings were initiated regarding his estate.
The Subject Property
On October 22, 1985, decedent and Asrican, husband and wife, purchased real property located on Lakewood Drive in Windsor, California (the Windsor Property). The October 1985 grant deed stated that decedent and Asrican, “husband and wife,” took title to the property “as joint tenants.” During 1993 and 1994, decedent and Asrican entered into a series of transactions with their children regarding the Windsor Property. On March 8, 1993, decedent and Asrican gift deeded the Windsor Property to their daughter, Erica Asrican. On June 30, 1993, Erica Asrican quitclaimed her right, title and interest in the Windsor Property back to decedent and Asrican; the quitclaim deed made no mention of joint tenancy. On October 4, 1993, decedent and Asrican again gifted the Windsor Property to Erica Asrican. On April 14, 1994, Erica Asrican again gifted the Windsor Property back to decedent and Asrican; the grant deed again contained no joint tenancy language. Finally, on April 15, 1994, decedent and Asrican executed a deed of trust, which stated that decedent and Asrican, “husband and wife, as joint tenants,” transferred the Windsor Property in trust to North American Title Company, Inc., for the purpose of securing a debt of $42,850 owed to Erica Asrican.
The Instant Suit
On September 15, 2004, Allen filed an application for renewal of the December 1994 judgment against decedent (Code Civ. Proc., § 683.110 et seq.). According to the proof of service, Allen served the notice of renewal of judgment by first class mail on December 30, 2004, in an envelope addressed to decedent at the Windsor Property address.
On August 23, 2005, Allen filed a first amended complaint against Asrican, pursuant to Probate Code section 9391, for enforcement of her judgment lien against the Windsor Property. The complaint alleged that decedent and Asrican held the Windsor Property as community property at the time Allen’s judgment lien attached on February 16, 1995, and therefore Allen could collect her lien against the Windsor Property. Asrican filed an answer alleging that Allen could not collect her judgment lien against the Windsor Property, because the title was held in joint tenancy, not as community property, at the time Allen’s lien attached. In preparation for a bench trial, Allen filed a motion in limine to exclude all evidence regarding the conveyance of the Windsor Property other than the instrument of conveyance itself. Asrican opposed the motion in limine.
Probate Code section 9391 permits a judgment creditor to bring an action to foreclose a lien against a deceased judgment debtor’s property without first filing a formal claim against the deceased debtor’s estate, if the creditor expressly waives all recourse against other property in the debtor’s estate. This section also exempts such actions from the one-year limitations period under Code of Civil Procedure section 366.2. (See Ahart, Cal. Practice Guide: Enforcing Judgments and Debts (The Rutter Group 2007) ¶ 6:1590, p. 6G-86.)
Following a bench trial on July 18, 2006, the court granted Allen’s motion in limine and granted judgment in favor of Allen. The court found that the Windsor Property was held as community property when Allen’s lien attached, and ruled that Allen could collect her lien against the Windsor Property under Probate Code section 9391. Judgment was entered against Asrican on November 28, 2006, and she filed a timely appeal of the judgment.
DISCUSSION
I. Exclusion of Extrinsic Evidence
Asrican contends that the trial court erred in granting Allen’s motion in limine to exclude all evidence regarding the conveyance of the Windsor Property other than the instrument of conveyance itself. Asrican argues that the April 14, 1994 grant deed is ambiguous, and therefore extrinsic evidence of the parties’ intent is admissible to show that decedent and Asrican intended to hold title to the Windsor Property in joint tenancy. We disagree.
Civil Code section 683, subdivision (a), which defines a joint tenancy and states the methods by which a joint tenancy may be created, requires that a joint tenancy be “expressly declared in the will or transfer to be a joint tenancy.” This language is mandatory; thus, joint tenancies can be created only by a writing. (Estate of MacDonald (1990) 51 Cal.3d 262, 271; California Trust Co. v. Bennett (1949) 33 Cal.2d 694, 697.) In addition, “ ‘it is well settled that where a statute requires the formality of a writing for the creation of an interest in property, it must contain words indicating an intent to transfer such interest, and in the absence of words which could be interpreted to show such intent, no parol evidence will be admitted.’ ” (MacDonald, at p. 271.) Thus, section 683 “ensures that a court need not look beyond the face of a proffered writing to determine whether its writer intended to create a joint tenancy.” (MacDonald, at p. 272.)
Civil Code section 683, subdivision (a), provides, “A joint interest is one owned by two or more persons in equal shares, by a title created by a single will or transfer, when expressly declared in the will or transfer to be a joint tenancy, or by transfer from a sole owner to himself or herself and others, or from tenants in common or joint tenants to themselves or some of them, or to themselves or any of them and others, or from a husband and wife, when holding title as community property or otherwise to themselves or to themselves and others or to one of them and to another or others, when expressly declared in the transfer to be a joint tenancy, or when granted or devised to executors or trustees as joint tenants. A joint tenancy in personal property may be created by a written transfer, instrument, or agreement.”
The April 14, 1993 grant deed contained no express declaration of joint tenancy. The deed stated that Erica Asrican granted the Windsor Property “to Phill & Ruth R.ASrican [sic],” but had no language indicating a joint tenancy. In the absence of any words in the grant deed that could be interpreted to show an intent to transfer a joint tenancy interest, the trial court properly excluded extrinsic evidence of decedent’s and Asrican’s intent.
Asrican refers us to Tomaier v. Tomaier (1944) 23 Cal.2d 754 and Abbett Electric Corp. v. Storek (1994) 22 Cal.App.4th 1460 for the proposition that the trial court should have considered extrinsic evidence of the parties’ intent in determining whether the Windsor Property was held in joint tenancy. Each case is inapposite. In Tomaier, the court held that, where a husband and wife acquired property through deeds naming them as joint tenants, extrinsic evidence was admissible to show that the husband and wife acquired the property with community funds with the intention that it would remain part of the community. (Tomaier, supra, at pp. 756-759.) In Abbett, the court affirmed the trial court’s ruling that a former husband and wife held property in joint tenancy, where the deed expressly stated that the property was held “as joint tenants,” but the husband and wife had characterized the property as community property in the course of dissolution proceedings. (Abbett, supra, at pp. 1463-1464, 1468.) The Abbett court looked to evidence of the husband and wife’s intent, including evidence that they understood the attributes of joint tenancy property and intended to hold the property in joint tenancy and not as community property. (Id. at pp. 1468-1469.) Neither of these cases admitted extrinsic evidence of intent where, as here, the instrument of conveyance contained no language indicating that the property was held in joint tenancy.
II. Characterization of the Windsor Property as Community Property
Asrican also contends that the trial court erred in characterizing the Windsor Property as community property, and, therefore, erred in ruling that Allen could collect her lien against the Windsor Property under Probate Code section 9391. She contends that at the time Allen’s lien attached, decedent and Asrican held the Windsor Property as joint tenants or, in the alternative, as tenants in common.
A trial court’s determination of whether a specific asset is community or separate property is generally a question of fact to which we apply the substantial evidence standard of review. (Bono v. Clark (2002) 103 Cal.App.4th 1409, 1421.) The selection of the rule of law to determine the characterization of property, however, is a question of law that we review independently. (Ibid.)
The parties agree that whether Allen can collect her judgment lien against the Windsor Property depends on the characterization of the property at the time Allen’s lien attached, on February 16, 1995. If the Windsor Property was held as community property, then Allen can collect her lien against the property, because community property is ordinarily liable for a debt incurred by either spouse before or during the marriage, regardless of whether one or both spouses are parties to the debt or to a judgment for the debt. (Fam. Code, § 910, subd. (a).) However, if the Windsor Property was held in joint tenancy, then Allen cannot collect her lien against the property, because the judgment lien attaches only to the judgment debtor’s interest in the property, and when the judgment debtor dies, his joint tenancy interest is extinguished. (See Grothe v. Cortlandt Corp. (1992) 11 Cal.App.4th 1313, 1318-1322; see also Zeigler v. Bonnell (1942) 52 Cal.App.2d 217, 220-222.)
In California, “[e]xcept as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.” (Fam. Code, § 760.) The separate property of a married person includes “[a]ll property acquired by the person after marriage by gift, bequest, devise, or descent.” (Fam. Code, § 770, subd. (a)(2).) Thus, “there is a general presumption that property acquired during marriage by either spouse other than by gift or inheritance is community property unless traceable to a separate property source.” (In re Marriage of Haines (1995) 33 Cal.App.4th 277, 289-290.)
A grant deed which specifically states that the property is joint tenancy property may rebut the community property presumption. (Estate of Petersen (1994) 28 Cal.App.4th 1742, 1747.) However, as discussed above, a joint tenancy must be expressly declared in writing: “A joint interest is one owned by two or more persons in equal shares, by a title created by a single will or transfer, when expressly declared in the will or transfer to be a joint tenancy . . . . A joint tenancy in personal property may be created by a written transfer, instrument, or agreement.” (Civ. Code, § 683, subd. (a).)
Asrican first contends that there is evidence the Windsor Property was held in joint tenancy at the time Allen’s lien attached, and this evidence rebuts the community property presumption. We disagree. The April 14, 1994 grant deed giving decedent and Asrican title to the Windsor Property did not create a joint tenancy, because it contained no express declaration of joint tenancy. The April 15, 1994 deed of trust did contain joint tenancy language: it stated that decedent and Asrican, “husband and wife, as joint tenants,” transferred the Windsor Property in trust to North American Title Company, Inc., as security for a $42,850 debt owed to Erica Asrican. However, the April 15, 1994 deed of trust was not a transfer giving decedent and Asrican title to the Windsor Property; instead, as Asrican acknowledges, it was a conveyance of property to a third party for purposes of securing a debt. Therefore, the April 15, 1994 deed of trust did not create a joint tenancy.
Asrican also points to extrinsic evidence of decedent’s and her intent to hold the Windsor Property as joint tenants, and contends that this evidence rebuts the community property presumption. However, as discussed in part I., above, this extrinsic evidence was properly excluded by the trial court.
Asrican next contends that, in the alternative, an analysis of the April 14, 1994 grant deed alone suggests that the Windsor Property was held in tenancy in common, not as community property. Again, we disagree. The April 14, 1994 grant deed stated that Erica Asrican gifted the Windsor Property back to decedent and Asrican. Asrican correctly points out that property acquired by a married person by gift is that person’s separate property. (Fam. Code, § 770, subd. (a)(2).) However, where there is evidence that a gift was made jointly to the husband and wife, rather than to an individual spouse, the gifted property is properly characterized as community property, not separate property. (In re Marriage of Milse (1986) 182 Cal.App.3d 203, 208.) Here, the April 14, 1994 grant deed stated that Erica Asrican granted the Windsor Property to both decedent and Asrican. Thus, substantial evidence supports the trial court’s finding that, if the Windsor Property was a gift, it was a gift to the community. Based on this finding, the trial court correctly concluded that the Windsor Property was community property.
Asrican further contends that even if the Windsor Property is characterized as community property, Allen cannot bring an action against Asrican to collect her judgment lien against the Windsor Property, because the proper defendant in an enforcement action under Probate Code section 9391 is decedent’s estate, not Asrican. No probate proceedings were initiated after decedent’s death, and Asrican contends that Allen was required to first initiate probate proceedings, and then file her section 9391 enforcement action against decedent’s estate. However, section 9391, on which Asrican relies, contains no such requirement. As discussed above, this statute authorizes a judgment creditor to bring an action to foreclose a lien against a deceased judgment debtor’s property without first filing a formal claim against the deceased debtor’s estate, if the creditor expressly waives all recourse against other property in the debtor’s estate. (Prob. Code, § 9391; Ahart, Cal. Practice Guide: Enforcing Judgments and Debts, supra, ¶ 6:1590, p. 6G-86.) In the absence of any authority requiring that Allen initiate probate proceedings before filing her section 9391 enforcement action, we decline to impose such a requirement.
We conclude that the trial court did not err in characterizing the Windsor Property as community property. The court correctly concluded that Allen could collect her lien against the Windsor Property under Probate Code section 9391. (Fam. Code, § 910, subd. (a).)
III. Service of Notice of Renewal
Finally, Asrican contends that the notice of renewal of the underlying judgment was not properly served, and therefore Allen may not enforce her judgment lien against the Windsor Property.
A judgment can be renewed by filing an application for renewal with the court clerk. (Code Civ. Proc., § 683.120.) The judgment creditor must “serve a notice of renewal of the judgment on the judgment debtor” personally or by first-class mail, and the proof of service must be filed with the court clerk. (Code Civ. Proc., § 683.160, subd. (a).) No enforcement proceedings may be commenced to enforce the judgment until the proof of service is filed according to these provisions, except to the extent the judgment would be enforceable had it not been renewed. (Code Civ. Proc., § 683.160, subd. (b).)
The proof of service attached to the notice of renewal of judgment indicates that Allen served the notice of renewal by first class mail on December 30, 2004, in an envelope addressed to decedent at the Windsor Property address. At the time of service, decedent was deceased, and no probate proceedings had been initiated regarding his estate. Asrican asserts that in order to comply with Code of Civil Procedure section 683.160, Allen was required to serve the notice of renewal on a representative of decedent’s estate or an appointed successor in interest. However, Asrican provides no authority for the proposition that where, as here, the judgment debtor is deceased and no probate proceedings have been initiated regarding his estate, the judgment creditor must serve the notice of renewal on the judgment debtor’s estate or an appointed successor in interest. “If an appeal is pursued, the party asserting trial court error may not then rest on the bare assertion of error but must present argument and legal authority on each point raised. [Citation.]” (Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th 645, 649.) “An appellate court is not required to examine undeveloped claims, nor to make arguments for the parties. [Citation.]” (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.) Because Asrican has not presented any legal authority demonstrating trial court error on this point, the judgment is presumed correct. (Boyle, at p. 649.)
Asrican also contends that the renewal of judgment provisions under Code of Civil Procedure section 680.110 et seq. do not apply after the death of the judgment debtor, and therefore Allen’s judgment against decedent could not be renewed under these provisions at any time after his death in August 2000. She also argues that she is not the proper defendant in this action because she does not presently own the Windsor Property, as it has been transferred to her revocable living trust. However, Asrican did not raise either of these arguments in the trial court below, and they may not be asserted for the first time on appeal. (See Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316.)
DISPOSITION
The judgment is affirmed. Allen is entitled to her costs on appeal.
We concur. NEEDHAM, J., STEVENS, J.
Retired Associate Justice of the Court of Appeal, First District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.