EDWARD J. BOWEN, et al., Plaintiffs, Cross-defendants and Appellants,

v.

MILTON LINDER et al., Defendants, Cross-complainants and Respondents;

IRVING WEINER et al., Defendants, Cross-complainants and Appellants;

TICOR TITLE INSURANCE COMPANY OF CALIFORNIA, Cross-defendant and Respondent.

California Court of Appeal, Case No. B056978

Unpublished decision.

 

 

APPEALS from judgments of the Superior Court of Los Angeles County. William E. Burby, Judge. Reversed.

Law offices of Larr & Poteet, William R. Larr for Plaintiffs, Cross-defendant and Appellants.

Myles M. Mattenson for Defendants, Cross-complainants, and Appellants.

Robert L. Hunter, for Defendants, Cross-complainants, Respondents.

Alexander Levy for Cross-defendant and Respondent.

 

I. INTRODUCTION

There are two appeals in this case. In the first appeal, which is discussed in part III(B) of this opinion, plaintiffs, Edward J. Bowen, Jr. and Joan P. Bowen, contend that the trial court erred in granting summary judgment against them in favor of defendants, Milton and Geraldine B. Linder (the "Linders") and Irving D. and Gayle A. Weiner (the "Weiners") on a complaint to establish an easement by prescription or by estoppel. The second appeal, which is discussed in part III(C) below, is from a summary judgment entered against the Weiners on their cross-complaint for breach of the implied covenant of good faith and fair dealing and in favor of cross-defendant Ticor Title Insurance Company (Ticor). For the reasons stated below, we reverse the summary judgments on the complaint and cross-complaints.

 

II. BACKGROUND

The original complaint in this matter was filed on July 21, 1989, by Virginia Lenk, Edward J. Bowen, Jr., and Joan P. Bowen against the Linders and the Weiners. The complaint sought damages on a number of tort theories and other relief including reformation of a grant deed and a judgment quieting title on an alleged easement by prescription, estoppel, or implication. The complaint was subsequently amended twice and was ultimately brought solely by the Bowens. The second amended complaint alleged that, prior to 1972, Ms. lenk was the common owner of a parcel of property in Malibu. On or before 1972, Mr. Linder, who was Ms. lenk's attorney, obtained approval to subdivide the property into 4 separate lots, 3 of which are now owned by the Bowens (parcel 2), the Linders (parcel 3), and the Weiners (parcel 4). Ms. lenk retained the ownership of parcel 1 which is located at 28036 Sea Lane. The Weiners' property, which was acquired pursuant to a grant deed recorded April 7, 1975, included a residence located at 28032 Sea Lane and a strip of real property which is paved as a driveway. The Linders' property, which was acquired by grant deed recorded on April 22, 1975, included a residence located at 28034 Sea Lane and a strip of real property which was partially paved as a driveway. The Linder and Weiner driveways appear to be one paved driveway which leads to the beach. This paved driveway is the subject of the dispute in this action. William Beverley and Alice M. Scholefield, who are not parties to this action, own a parcel of property located at 28040 Sea Lane which is relevant to the issues in this case. The Scholefields have since December 29, 1961, owned an easement over the paved driveway from Sea Lane to that portion of the their property which is adjacent to the beach.

The Bowens acquired their property, located at 28028 Sea Lane, by grant deed recorded on December 21, 1976. The Bowens' property is located directly north of the Weiner and Linder properties and abuts part of the eastern boundary of the Scholefield properties. The grant deed to the Bowens included a specific grant of an easement over the driveway in favor of them. The easement ran along the eastern side of the Bowens' property, crossed over the northern portion of the Weiner and Linder parcels, and culminated "in a circular turn-around area on the Linder and Scholefield properties." The controversy arose in August 1986 when the Linders constructed a locked gate across the paved driveway and refused to allow the Bowens access to the beach over the roadway. The Bowens, thereafter discovered that the purported grant of the easement was void because, in transferring the Linder and Weiner properties, Ms. Lenk failed to reserve an easement in favor of the Bowen property.

The second amended complaint sought an adjudication by the court that plaintiffs held a prescriptive easement over the paved driveway. It was alleged, "Plaintiff Bowens and their predecessor, Virginia Lenk, have used the subject easement openly, notoriously, continuously, hostilely, and under claim of right, for a period in excess of nine years, as a means of access to the property of Mr. Beverley Scholefield, who permits plaintiff access to the beach." Plaintiffs also sought an adjudication that they were entitled to an easement be estoppel against the Linders because "defendant Milton Linder knowingly failed to disclose to Virginia Lenk that the deed transferring the Linder property from Virginia Lenk to the Linders, which she prepared [as Ms. Lenk' attorney], did not reserve the subject easement across the Linder property in favor of the Bowen property." The Linders and Weiners answered the amended complaint and cross-complained to quiet title on the disputed easement. They also cross-complained for breach of the implied covenant of good faith and fair dealing against Ticor which issued title insurance to the Bowens, the Linders, and the Weiners.

The Linders and the Weiners filed motions for summary judgment on the complaint on the grounds that plaintiffs were not entitled to a prescriptive easement as a matter of law (Code Civ. Proc., 437c, subd. (c)) because their use of the easement during the prescriptive period was permissive and not hostile. Defendants relied primarily upon the declaration of Mr. Scholefield to support their claim that the use of the easement was permissive. The declaration provided in relevant part: "I hold an easement upon the paved driveway from Sea Lane to my beach property adjacent to the Linder residence. Such easement is the only reasonable access to the portion of my property which is adjacent to the beach. The portion of my parcel which is adjacent to the beach is separated form the inland portion of my parcel by a steep cliff which is too steep to walk or climb upon. [] I have, on occasion, invited guests to make use of my beach property, and, in so doing, have invited these guests to make use of the driveway to reach my beach property. [] Shortly after the Bowens took occupancy of their residence during or about December 1976 or early 1977, I gave Edward J. Bowen, Jr. and his family permission to use my beaCH PROPERTY. From time to time thereafter, I had other conversations with Edward J. Bowen, Jr. in which I provided such permission. [] Some time after this litigation commenced, however, I requested Edward J. Bowen, Jr. and his family to stop using my beach property until the litigation was resolved. Such request was the only time I denied Edward J. Bowen, Jr. and his family permission to sue my beach property." Defendants argued this declaration established, as a matter of law, that plaintiffs' use of the property was not hostile thereby vitiating their claim the use of the easement was hostile as a matter of law. Plaintiffs opposed the motion on the grounds that to the extent that Mr. Scholefield was the holder of an easement, he could not license them to use the paved driveway and triable issues remained as to whether the use of the property was hostile or permissive so defendants were not entitled to summary judgment.

The trial court granted the motions; dismissed the Weiner and Linder cross-complaints to quiet title; and entered judgment on the second amended complaint in favor of the Linders and Weiners. The trial court also granted a motion for summary judgment against the Weiners on their cross-complaint against Ticor. The Bowens and Weiners filed timely appeals form the judgments against them.

 

III. DISCUSSION

A. Standard of Review

A motion for summary judgment will be granted if the moving papers establish that there is no trial be issue of material fact and the moving party is entitled to judgment as a matter of law. ( 437c, subd. (c).) The standard for appellate review of a summary judgment motion was set forth by our Supreme Court as follows: "Summary judgment is a drastic measure that deprives the losing party of a trial on the merits. [Citation.] It should therefore be used with caution, so that it does not become a substitute for trial. [Citation.] The affidavits of the moving party should be strictly construed, and those of the opponent liberally construed. [Citation.] Any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. [Citation.] [] A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff's asserted causes of action can prevail. [Citation.] To succeed, the defendant must conclusively negate a necessary element of the plaintiff's case, and demonstrate that under no hypothesis is there a material issue of fact that requires the process of a trial." (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) An appellate court determines de novo whether there is a genuine issue of material fact and whether the moving party was entitled to summary judgment as a matter of law. Wilson v. Blue Cross of So. California (1990) 222 Cal.Ap[p.3d 660, 670.)

B. Summary Judgment Should Not Have Been Entered On The Complaint

The sole issue raised by plaintiffs' appeal is whether it was established as a matter or law that they could not prevail on their prescriptive easement claim. A prescriptive easement in property may be acquired by establishing that the party claiming the right of access has used the property: (1) openly and notoriously; (2) continuously; (3) adversely or hostilely; (4) under claim of right; and (5) for five years. (Civ. Code 1007; 321; Field-Escandon v. DeMann (1988) 204 Cal.App.3d 228, 235.) The Court of Appeal has held: "'The above elements are designed to insure that the owner of the real property which is being encroached upon has actual or constructive notice of the adverse use and to provide sufficient time to take necessary action to prevent that adverse use from ripening into a prescriptive easement.'" (Twin Peaks land Co. v. Briggs (1982) 130 Cal.App.3d 587, 593.) The person asserting the claim has the burden of proof as to each element to create the prescriptive easement. (Ibid.) Whether each of the requisite elements are established is a question of fact. (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570.)

In this case, the parties do not dispute that, prior to the installation of the locked gate, the Bowens used the easement at all times during the claimed period of prescription. The controversy centers around whether the evidence established as a matter of law that the use of the property was permissive and not hostile. The California Supreme Court has repeatedly noted that generally, the question of "[w]hether the use is hostile or is merely a matter of neighborly accommodation . . . is a question of fact to be determined in light of the surrounding circumstances and the relationship between the parties." (Warsaw v. Chicago Metallic Ceilings, Inc., supra, 35 Cal.3d at p. 572; Taormino v. Denny (1970) 1 Cal.3d 679, 687.) Furthermore, in resolving the issue of which party has the burden or proving adverse or permissive use, the Supreme Court has held: ". . . [we agree with the view, supported by numerous authorities,] that continuous use of an easement over a long period of time without the landowner's interference is presumptive evidence of its existence and in the absence of evidence of mere permissive use it will be sufficient to sustain a judgment." (Warsaw v. Chicago Metallic Ceilings, Inc., supra, 35 Cal.3d at pp. 571-572.) Defendants' sole argument as to why they were entitled to summary judgment is based upon the theory that any claim of hostility by the plaintiffs was vitiated because Mr. Scholefield allowed them to use his beach property which is most easily accessed by using the paved driveway. The declaration provided in relevant part: "I hold an easement upon the paved driveway from Sea Lane to my beach property adjacent to the Linder residence. Such easement is the only reasonable access to the portion of my property which is adjacent to the beach. The portion of my parcel which is adjacent to the beach is separated from the inland portion of my parcel by a steep cliff which is too steep to walk or climb upon. [] I have, on occasion, invited guests to make use of my beach, property, and, in so doing, have invited these guests to make use of the driveway to reach my beach property. [] Shortly after the Bowens took occupancy of their residence during or about December 1976 or early 1977, I gave Edward J. Bowen, Jr. and his family permission to use my beach property. From time to time thereafter, I had other conversations with Edward J. Bowen, Jr. in which I provided such permission. [] some time after this litigation commenced, however, I requested Edward J. Bowen, Jr. and his family to stop using my beach property until the litigation was resolved. Such request was the only time I denied Edward J. Bowen, Jr. and his family permission to use my beach property." We disagree with defendants that this declaration established the element of hostility was negated as a matter of law.

First, plaintiffs presented evidence from which a trier of fact could conclude that they independently claimed a right to use the driveway from Ms. Lenk's void grant of the subject easement designated as "Parcel C" in the grant deed. The deed purports to grant the Bowens "[a]n easement for road purposes, for pedestrian access to the beach" over portions of Parcels 3 and 4. The Bowens presented evidence that: (1) between the 1976 and 1986, their family used the paved driveway as pedestrians and in automobiles; (2) "[they had] always claimed the right to use the paved driveway because [they had] always believed that the easement designated as 'Parcel C' in the deed by which [they] purchased the property referred to the area of the paved driveway . . ."' (3) they denied using the driveway because Mr. Scholefield gave them permission; (4) they used the driveway "to get to Mr. Scholefield's fee-title parcel of beachside property and to the beach from [their] house . . ."' (5) when Mr. Scholefield told them that they could use the paved driveway to get to his beach, they responded by rejecting his permission as to the paved driveway because they believed that the grant of "Parcel C" gave them the right to use the driveway without anyone's consent or approval; (6) although Mr. Bowen asked Mr. Scholefield's permission to park on his property, Mr. Bowen believed that they had blanket permission to use the driveway because of the grant deed; and (7) at the time that Mr. Linder installed the locked gate in August 1986, they still believed that they had an easement over the driveway. Although it was ultimately determined that the plaintiffs' belief about ownership of the easement was mistaken, the requisite hostile possession and claim of right may be established even tough the property was occupied by mistake. (Gilardi v. Hallam (1981) 30 Cal.3d 317, 322.) As stated by the Supreme Court: "[T]he hostility requirement 'means, not that the parties must have a dispute as to the title during the period of possession, but that the claimant's possession must be adverse to the record owner, '"unaccompanied by any recognition, express or inferable from the circumstances of the right in latter."'" (Id. at pp. 322-323.)

Second, the Scholefield declaration does not state he purported to give the Bowens permission to use the driveway rather it states that he allowed them to use his beach property and that he owns an easement over the driveway. Furthermore, defendants have not cited any authority which supports their argument that the claim could not have been hostile as to "Parcel C" because a third party, and not the landowners, who owned easement rights gave plaintiffs permission to use a separate piece of property. Third, contrary to defendants' contentions, the evidence did not establish as a matter of law that plaintiffs were the social guests of the Scholefields every time they used the driveway over the nine year period. Mr. and Mrs. Bowen both stated that, over the prescriptive period, they used the easement hundreds of time. Moreover, a another deficiency in defendants' argument is that there is no evidence that plaintiffs ever requested form or were given permission by the fee owners, the Linders and the Weiners, to use the easement. Under these circumstances, a reasonable trier of fact could have concluded that the use was hostile and not permissive; therefore, summary judgment should not have been granted on the second amended complaint.

C. The Trial Court Should Not Have Granted Summary Judgment On the Cross-Complaint

The Weiners have also appealed form the judgment against them on a cross-complaint against Ticor, their title insurer, for breach of the implied covenant of good faith and fair dealing. The Weiners argue that summary judgment should not have been granted until they were given an opportunity to amend their cross-complaint to assert that the implied covenant was breached when Ticor refused the tender of their defense. We agree.

The standard for review in such cases was recently articulated by Honig v. Financial Corp. of America (1992) 6 Cal.App.4th 960, 965-967 where a summary judgment was reversed after the trial court refused to allow the plaintiffs to allege additional causes of action in a wrongful termination action. This court held: "In the furtherance of justice, trial courts may allow amendments to pleadings and if necessary, postpone trial. [Citation.] Motions to amend are appropriately granted as late as the first day of trial [citation] or even during trial [citation] if the defendant is alerted to the charges by the factual allegations, no matter how framed [citation] and the defendant will not be prejudiced. 'When the request to amend has been denied, an appellate court is confronted by two conflicting policies. On the one hand, the trial courts's discretion should not be disturbed unless it has been clearly abused; on the other, there is a strong policy in favor of liberal allowance of amendments. This conflict '"is often resolved in favor of the privilege of amending, and reversals are common where the appellant makes a reasonable showing of prejudice form the ruling." ' [Citation.] If the original pleading has not framed the issues in an articulate and precise manner, a plaintiff should not be precluded from having a trial on the merits." (Id. at p. 965.)

In this case, we conclude that the trial court abused its discretion in refusing to allow the Weiners to amend their cross-complaint to allege that Ticor breached the implied covenant of good faith and fair dealing by refusing to accept the tender of the defense. The underlying complaint was filed on July 7, 1989. The second amended complaint was filed by stipulation on November 13, 1989. The Weiners answered the complaint and cross-complained for quiet title and for breach of the implied covenant on February 13, 1990. Ticor answered the cross-complaint on July 13, 1990. and moved for summary judgment on December 18, 1990. One of the grounds asserted in the motion was that the cross-complaint did not allege nor did Ticor have a duty to defend the lawsuit against the Weiners. The Weiners admittedly tendered the defense of the action to Ticor in August or September of the 19898 within a month or so after the action was filed. Ticor denied the tender of the Weiners' defense of the Brown action on the basis that the prescriptive easement claims were expressly excluded under the title insurance policy. Although the cross-complaint does not specifically allege that Ticor's conduct in refusing to defend the underlying action resulted in the breach of the implied covenant, when the Weiners filed their opposition to the motion, they requested a continuance to allow them time to amend their cross-actions "to specifically and clearly allege that the failure of cross-defendant Ticor to provide a defense to cross-complainants Weiner in this action gives rise to the breach of the implied covenant of good faith and fair dealing." An amendment to allege Ticor's actions in denying defense of the action would be based on the same general set of facts as the existing cause of action for breach of the implied covenant. The Weiners had already asserted a cause of action for breach of the implied covenant based upon Ticor's conduct in connection with the prosecution of the quiet title action against them. The Weiners alleged that Ticor sought to "diminish" their ownership and economic interest in their property in favor of another insured. The Weiners also alleged that they were being denied Ticor's cooperation in obtaining protection from claims which would so diminish the Weiners' interest as insured by the title policy. Moreover, it was undisputed that: the original complaint alleged that the subject easement was created by grant deed dating back to 1951; the Bowens made a claim under the title insurance policy with Ticor which had insured them that the easement existed when in fact Mrs. Lenk had not reserved the subject easement; Ticor authorized plaintiffs' lawsuit to quiet title to the subject easement against the Weiners and the Linders on a number of theories including reformation of the April 1975 grant deed and easements by estoppel, implication, and prescription; plaintiffs' easement claims allegedly included times and rights which pre-dated the issuance of the Weiners' policy; and Ticor refused to defend the Weiners' title to the property. Under these circumstances, they should have been allowed the opportunity to amend their cross-complaint to assert that Ticor's conduct in denying the tender of defense was a breach of the implied covenant.

Furthermore, we are unpersuaded by Ticor's argument that summary judgment would have been proper in any event because it has established a complete defense under the second amended complaint which only asserted a cause of action for a prescriptive easement against the Weiners which is specifically excluded by the policy. The construction of the insurance policy is controlled by the well-established rules of interpretation of insurance contracts. If the contract is ambiguous, the ambiguity is generally resolved in favor of coverage. (AIU Ins. Co. v. Superior Court (1990) 51 Cal.3d 807, 822.) If there is no ambiguity, the plain meaning of the language is applied. (Ibid.) Courts generally interpret the coverage clauses broadly and the exclusionary clauses narrowly to protect the reasonable expectations of the insured. (Id. at pp. 822-823; White v. Western Title Ins. Co. (1985) 40 Cal.3d 870, 881.) The Court of Appeal has noted: "In determining what benefits or duties an insurer owes his insured pursuant to a contract of title insurance, the court may not look to the words of the policy alone, but must also consider the reasonable expectations of the public and the insured as to the type of service which the insurance entity holds itself out as ready to offer. [Citations.] Stated in another fashion, the provision of the policy, "'"must be construed so as to give the insured the protection which he [or she] reasonably had a right to expect. . . ."' [Citations.]" (Jarchow v. Transamerica Title Ins. Co. (1975) 48 Cal.App.3d 917, 941; original italics.) Ticor's policy provides in paragraph 3: "9a.) The Company, at its own cost and without undue delay, shall provide for the defense of an insured in litigation to the extent that such litigation involves an alleged defect, lien, encumbrance or other matter insured against by this policy. . . . [] (c.) The Company shall have the right at its own cost to institute and without undue delay prosecute any action or proceeding or to do any other court which in its opinion may be necessary or desirable to establish the title to the estate or interest or the lien of the insured mortgage, as insured . . . ." The policy further provides: "This policy does not insure against loss or damage, nor against costs, attorneys' fees or expenses, any or all of which arise by reason of the following: [] 3. Easements, liens or encumbrances, or claims thereof, which are not shown by the public records. . . . [] 9. Defects, liens, encumbrances, adverse claims, or other matters . . . (d) attaching or created subsequent to Date of Policy . . . ." Public records is defined by the policy to mean "those records which by law impart constructive notice of matters relating to the land."

In this case, interpretation of the policy at issue requires coverage of claims shown in the public record. The Court of Appeal has held: "It is axiomatic that matters outside the public record are outside the chain of title which a title insurer must examine before issuing a standard California Land Title Association policy . . . ." (Barczewski v. Commonwealth Land Title Ins. Co. (1989) 210 Cal.App.3d 406, 410.) As stated by the Supreme Court, "Coverage of claims of record also [within the scope of an ordinary title search] accords with the purpose of the title policies and the reasonable expectations of the insured. [A] standard CLTA policy is a policy based upon an inspection of records and, unlike more expensive policies, does not involve inspection of the property. The purchaser of such a policy could not reasonably expect coverage against unrecorded claims, but he could reasonably expect that the title company had competently searched the records, disclosed all interest of record it discovered and agreed to protect him against any undisclosed interest." (White v. Western Title Ins. Co., supra, 40 Cal.3d at pp. 881-882.) The original complaint alleged: "By Grant Deed executed January 2, 1951, . . . the subject easement was created and established and conveyed to Dorothy Marguerite Merrifield." Plaintiffs then sought to establish the easement by reformation of the Linder grant deed. This was in addition to the effort to secure a prescriptive easement. Any adjudication of the easement on the basis of the grant deed in favor of plaintiffs would have placed a burden on the Weiner property as well. Therefore, because plaintiffs brought an action to quiet title against the Weiners based in part on whether the grant of the easement from the recorded 1951 deed still encumbered their property, the Bowens sought an adjudication which affected the Weiners' title to the property which was insured by Ticor.

Furthermore, contrary to Ticor's contentions, the fact that plaintiffs ultimately sought only a prescription easement against the Weiners is not dispositive of the issue of the duty to defend in this case. The well established rule as to when there is a duty to defend is as follows: "The duty to defend is much broader than the duty to indemnify. An insurer's duty to defend must be analyzed and determined on the basis of any potential liability arising from facts available to the insurer from the complaint or other sources available to it at the time of the tender of defense. If the insurer is obliged to take up the defense of its insured, it must do so as soon as possible, both to protect the interests of the insured, and to limits its own exposure to loss. Unlike the duty to indemnify, which is only determined after liability is finally established, the duty to defend must be assessed at the outset of the case. [Citations.]" (CNA Casualty of California v. Seaboard Surety Co. (1986) 176 Cal.App.3d 598, 605.) The duty to defend does not turn upon the ultimate adjudication of the coverage issues but upon the facts which are known to the insurer at the inception of the third party action against its insured. (Jarchow v. Transamerica Title Ins. Co., supra, 48 Cal.App.3d at pp. 942-943.) In Jarchow, the court noted: "In determining whether the insured's duty to defend has matured, courts, after looking at the nature and kind of risk covered by the policy, must decide whether a potential of liability for indemnity under the title insurance policy is raised at the time the defense is requested. If possible liability exists, the title company is duty bound to defend the insured in a quiet title action. Failure to provide a defense under such circumstances gives rise to a cause of action in tort for bad faith. [Citations.] The rule regarding an insurer's duty to defend really can take no other form; otherwise the insured would be required to finance his own defense and then, on if he is successful, hold the insurer to its promise by means of a second suit for reimbursement. If this construction were followed, a basic reason for the purchase of insurance would be defeated; instead of having purchase insurance against the trauma and financial hardship of litigation, the insured will have found that he has purchased nothing more than a lawsuit." (Ibid.; emphasis in original.) At the time the defense of the quiet title action was tendered to Ticor, plaintiffs sought relief against the parties on a number of theories including a claim that the a grant deed should be reformed to reflect the subject easement which originated by grant deed. Ticor did not contend or even address whether at the time of the Weiners tendered their defense, it knew that the alleged grant deed was not in the public record. Further, Ticor did not establish it knew the grant deed was out of the Weiner chain of record title. In any event, "as long as the complaint contains language creating the potential of liability under an insurance policy, the insurer must defend an action against its insured even though it has independent knowledge of fats not in the pleadings to establish that the claim is not covered." (CNA Casualty of California v. Seaboard Surety Co., supra, 176 Cal.App.3d at p. 606, emphasis in original.) Moreover, a number of the events alleged in the complaint preceded the date of the Weiner title insurance policy, April 7, 1975. There was also undisputed evidence that Ticor insured Ms. Lenk's grant of subject easement to the Bowens even though she failed to reserve the easement for the benefit of the property. Thereafter, in order to correct the error, Ticor paid for the prosecution of the action against another of its insureds apparently because it had insured the conveyance from Ms. Lenk to plaintiffs which caused them to erroneously believe they held title to an easement over the Weiners' property when in reality they did not. Therefore, Ticor did not establish as a matter of law that it had no duty to defend the action to quiet title against the Weiner property at the time the defense was tendered to it.

IV. DISPOSITION

The judgment on the complaint in favor of the Weiner and Linder defendants is reversed. The judgment on the Weiner cross-complaint in favor of Ticor is reversed. Plaintiffs Edward J. Bowen and Joan P. Bowen shall each recover their cost on appeal jointly and severally from Milton Linder, Geraldine B. Linder, Irving D. Weiner, and Gayle A. Weiner. Irving D. Weiner and Gayle A. Weiner shall recover their costs incurred in solely connection with their appeal from the summary judgment imposed against them on February 6, 1991, from Ticor Title Insurance Company.

NOT TO BE PUBLISHED.

 

TURNER, P.J.

 

We concur:

 

GRIGNON, J.

GODOY PEREZ, J.