Opinion
A116333
1-25-2008
GRIMILDA ALMENDARES, Plaintiff and Respondent, v. ROSABEL ALMENDARES, Defendant and Appellant.
NOT TO BE PUBLISHED
Plaintiff Grimilda Almendares sued her former spouse Gerard Almendares, seeking to quiet title in real property they owned as joint tenants under a 1983 grant deed, and to cancel a 1991 grant deed in which Grimilda purported to transfer her interest in the property to her former spouse. The facts giving rise to the dispute are, to say the least, unusual. During the pendency of the action Gerard died, and the action continued against Rosabel Almendares, as special administrator of Gerards estate. After a nonjury trial, the court cancelled the 1991 grant deed and granted sole ownership of the property to Grimilda as the surviving joint tenant under the 1983 deed. Rosabel appeals on numerous grounds. We find no merit in any of them and shall affirm the judgment.
Because several parties share the same family name, we refer to them by their given names.
FACTUAL AND PROCEDURAL BACKGROUND
Grimildas complaint sought to quiet title in real property located on 25th Street in San Francisco (25th Street property), which she acquired with Gerard, now deceased, pursuant to a condominium grant deed dated July 20, 1983, and recorded on July 26, 1983. She also sought to cancel a grant deed, dated May 23, 1991 and recorded September 9, 1991 (1991 grant deed), which purported to transfer her interest in the 25th Street property to Gerard. The complaint also sought the imposition of a constructive trust for Grimildas benefit. Rosabel denied that Grimilda had any ownership interest in the 25th Street property and asserted that the action is time-barred.
At the ensuing bench trial, the court considered evidence of the following. Grimilda and Gerard were married in 1961 and lived together as husband and wife in San Francisco. By 1967, they had four children, including Gerard Almendares Junior and Regina Diaz. In late 1988, Gerard told Grimilda that he had divorced her 10 years earlier. Unbeknownst to Grimilda, on December 24, 1976, Gerard had obtained an interlocutory judgment of dissolution of the marriage, and a final judgment of dissolution was entered on January 4, 1978. The judgments indicated Grimilda had been served with process but had not appeared. However, prior to the trial Grimilda had never seen any of the documents relating to the dissolution. The documents, including the proofs of service, listed Grimildas address in El Salvador, Central America, at a time when she was living with Gerard in their marital residence in San Francisco.
After Grimilda learned of the dissolution, she and Gerard continued to live together until 1990 and they never divided the property they had acquired while living together. They held title as joint tenants to various real properties in San Francisco, including their former residence, one additional property acquired before the 1978 dissolution, and two properties that were acquired after the 1978 dissolution. At issue here is the real property acquired in 1983, located on 25th Street in San Francisco, to which Gerard and Grimilda took title as "husband and wife, as Joint Tenants." The property was used by Gerard first to conduct his business of preparing legal documents for bankruptcies, taxes, immigration, and insurance; later he operated a travel agency at the premises.
We do not address the parties rights in other properties mentioned by the trial court, which rights were not ruled upon in the courts decision and judgment.
After Grimilda and Gerard separated, and until his stroke in 2004, Gerard made the mortgage payments on the former marital residence where Grimilda continued to live. In February 1989, Gerard applied for a loan on behalf of himself and Grimilda, using the former marital residence as security. In the loan application, completed entirety in Gerards handwriting, he identified Grimilda by name as his "spouse," and stated that title to the marital residence was in both names. Gerard applied for a loan of $40,000 as "collateral for travel agency." Grimilda never signed the form, but Gerard placed on the form a signature purporting to be hers.
On May 23, 1991, Gerard asked Grimilda to sign a blank preprinted form labeled "Grant Deed." When produced at trial, the grant deed was completed with the following information: the documentary transfer tax was listed as zero and it indicated that the realty had not been sold, the grantors were listed as "Gerard Almendares and Grimilda Almendares," and the grantee was listed as "Gerard Almendares, a single man." In the space provided for the description of the property, there was taped a piece of paper containing preprinted language reading, "the following described real property in the City and County of San Francisco, State of California: —(See EXHIBIT A)," and a printed continuation of the description of the 25th Street property, which first appeared on a second page stapled to the deed, labeled "Exhibit A." The deed was dated and notarized on May 23, 1991, and contained a stamp indicating it was recorded on September 9, 1991. Grimilda identified her signature and Gerards signature on the deed. However, she testified that when Gerard asked her to sign the deed, it contained only the preprinted language and was not otherwise completed. Grimilda had been a notary public for several years and was familiar with deed notarizations, but she denied she had signed the deed in the presence of Margot Castro, the notary public listed on the deed. When asked if she believed she was supposed to sign a blank deed, Grimilda replied that she had done so because Gerard had asked her to do so, he was her husband and the father of her children, and she trusted him "blindly." Gerard told her that he was going to use the 25th Street property as "collateral" to secure business for his travel agency. Gerard did not tell her what he did with the deed, and she was not aware that he had inserted his name as the sole grantee.
Margo Castro testified that she worked as a notary public exclusively for Gerard from 1987 to 1991. She normally did not notarize deeds in blank, she always notarized them with people in the office, and it was Gerards practice to prepare the documents, always giving her "things that . . . had been filled in." She identified the 1991 grant deed as one that she had notarized. Both Gerard and Grimilda were present when she notarized the document. However, the deed produced in court was not in the form that it had been in when she notarized the document. The deed had been altered to include both the piece of paper "scotch taped" onto the front and the second page stapled to the deed. Castro did not specifically remember the 1991 deed, but if Gerard had given it to her, he would not have given it to her "with this on top" of it.
Grimilda remarried in 1989. In June 1991, Gerard married Rosabel, and at the time of Gerards death in January 2005 they had five children. About three months after the marriage, Rosabel and Gerard moved into the rear area of the 25th Street property that had been remodeled as a residence for their family. At the time of Gerards death, the front of the property was still being used for Gerards businesses and the rear of the building continued to be used as a residence for Gerard, Rosabel, and four of their children. During his lifetime, Gerard discussed with Rosabel the ownership of the 25th Street property. According to Rosabel, in December 1991, Gerard showed her the 1991 grant deed indicating he was the sole owner of the property. Because Gerard wanted to refinance the property in September of 1999, he had Rosabel sign an interspousal grant deed transferring her spousal interest in the 25th Street property to Gerard as "A Married Man as Sole and Separate Property."
In 2003, Gerard asked Grimilda to apply with him for a loan secured by their former marital residence where Grimilda was then living. The loan was to consolidate Gerards debts, including a payment owed on a car that Gerard had purchased for Grimilda in 2001, and a payment owed on a truck used by their son. Some of the funds were used to pay off the outstanding mortgage on the 25th Street property. At that time, Gerard told Grimilda that the 25th Street property was for their children, and Grimilda believed she and Gerard were "half and half" owners of the property. Had Grimilda been aware of the 1991 deed, she would not have agreed to use the loan proceeds to clear the mortgage on the 25th Street property. Gerard Junior notarized the deed of trust submitted in connection with the 2003 loan. At that time, he knew his parents were no longer married, but the documents, including the deed of trust, indicated the borrowers were Gerard and Grimilda Almendares, "Husband and Wife," because both the former marital residence and the 25th Street property were held in the names of Gerard and Grimilda "in joint tenancy."
On April 12, 2004, Gerard suffered a massive stroke. The next day, Gerard Junior, who worked at Gerards office, received escrow papers pertaining to a bank loan for which Gerard had applied using the 25th Street property as collateral. After an investigation, he learned that Gerard was the sole title owner of the property. Regina Diaz later discovered the 1991 grant deed among Gerards papers in his office.
The trial court issued an extensive statement of decision addressing the parties contentions. The court found that the 25th Street property was the undivided community property of Gerard and Grimilda for the following reasons: (1) although the 1978 dissolution occurred before title was taken to the 25th Street property, the dissolution was obtained without Grimildas knowledge and the "fraudulent" dissolution did not terminate the marriage; (2) the parties acquired title as "husband and wife, as joint tenants," and while "acting as husband and wife"; and (3) Grimildas failure to set aside the dissolution when she learned of it did not validate its fraudulent nature or negate the fact that the parties were in a marital relationship before Grimilda learned of the dissolution. Alternatively, the court found that if the dissolution had severed the marital relationship, Grimilda nevertheless believed in good faith that she was still married when the property was acquired in 1983 and, therefore, the property would be classified as quasi-marital property, which is treated as community property.
The court found there was a presumption of undue influence in the execution of the 1991 deed because of the following facts: (1) although by 1991 the parties marriage was dissolved, they still owed each other spousal fiduciary duties with respect to the 25th Street property as an undivided community property asset; (2) Gerard had secured an advantage over Grimilda because she had been misled into signing the 1991 grant deed and did not understand that she was transferring her interest to Gerard, and she had not received consideration for the transfer of her interest; and (3) the deed did not "pass muster on its face. The deed appears suspect, as if pasted together into its current form." The court found credible Castros testimony that she would not have notarized a blank form and would have notarized the form only with both parties present. However, the court noted Castro also testified she would not have notarized the 1991 deed in the condition that it was presented in evidence. While Castro was credible, her testimony was not based on a specific recollection of notarizing the 1991 grant deed, but was based upon her habit and belief that she would have followed notary protocol. While Castro could not recall the notarization, the court found that Grimilda did provide a credible account and had a specific memory of the transaction.
The court rejected Rosabels contention that the matter was time-barred, finding that the 1991 grant deed signed by Grimilda was blank and that only after Gerards stroke in April 2004 did Grimilda learn of the alteration and recordation of the 1991 grant deed. Grimilda filed her complaint a few months later, on August 12, 2004.
The court concluded its decision by ruling: "The 1991 grant deed is hereby void and is ordered canceled. [Gerard] holds legal title to the 25th Street real property as constructive trustee for [Grimilda]. [Grimilda] is the sole owner of the fee simple interest in the 25th Street real property and title to the 25th Street real property is quieted in [her]. [Gerard] has no right, title, estate, lien, or interest, in the 25th Street real property." The judgment declares that Grimilda is the sole owner in fee simple of the 25th Street property; the purported 1991 grant deed is void and cancelled; Gerard and Rosabel, as special administrator of Gerards estate, are constructive trustees of the property for the benefit of Grimilda; and Gerard, Rosabel as special administrator of Gerards estate, and "all persons unknown," own no legal or equitable right, title, estate, lien, or interest in the property. Rosabel, as special administrator of Gerards estate, has filed a timely notice of appeal.
DISCUSSION
I. Ownership of the 25th Street Property
Rosabel asserts that the 1978 dissolution cannot be collaterally attacked in a quiet title action such as this, and that Grimildas 1989 remarriage estops her from denying the validity of the 1978 dissolution. For these reasons she attacks the trial courts conclusions that the 1978 dissolution did not terminate the parties marriage, that the parties were in a marital relationship until 1988, and that the 25th Street property acquired in 1983 was community property.
Rosabels arguments misconstrue Grimildas position regarding the validity of the 1978 dissolution. Grimilda did not request the trial court to set aside the 1978 dissolution. She argued that because she did not have notice of the dissolution, it should not be given res judicata effect in determining the character of property acquired during the period before Grimilda learned of it. In response to the courts questions as to whether this action was "the right forum to [attack] the divorce," Grimilda correctly contended that because her former spouse was now deceased, the marriage was "obviously terminated," and the only way to resolve title to the property was an action to quiet title, which did not require reopening the dissolution. Despite the courts statement that the fraudulent divorce did not terminate the marriage, the judgment did not set aside the 1978 dissolution.
Grimildas position is not a collateral attack on the 1978 dissolution. It is a direct attack permitted under equitable principles. (Howard v. Howard (1945) 27 Cal.2d 319, 321 ["If an unsuccessful party to an action has been kept in ignorance thereof [citations], or has been prevented from fully participating therein [citation], there has been no true adversary proceeding, and the judgment is open to attack at any time"].) "Such an attack may be made upon the ground of extrinsic fraud where it appears that there was a willful failure to give the required service." (Bennett v. Hibernia Bank (1956) 47 Cal.2d 540, 558.) As found by the trial court, Gerard obtained the dissolution without Grimildas knowledge by sending notice to her at an address in El Salvador when she resided with him in San Francisco. Thus, the courts finding that the divorce was fraudulently obtained is supported by the evidence.
Grimildas testimony was sufficient to support the finding that she continued to live with Gerard "in ignorance of the final divorce decree and with a good faith belief in the continuing validity of the marriage." (In re Marriage of Monti (1982) 135 Cal.App.3d 50, 56.) She therefore acquired the status of a putative spouse under Family Code section 2251. As such, she had the right to treat the quasi-marital property as community property. (See In re Marriage of Monti, supra, 135 Cal.App.3d at p. 56.) Moreover, the court correctly determined that Gerard and Grimilda owed fiduciary obligations to each other with respect to the 25th Street property even after Grimilda learned of the 1978 dissolution and later remarried. A spouse who controls community property assets occupies a position of trust "which is not terminated as to assets remaining in [the spouses] hands when the spouses separate." (Jorgensen v. Jorgensen (1948) 32 Cal.2d 13, 21; see Orlando v. Orlando (1966) 243 Cal.App.2d 248, 252.) We see no reason why this rule should not apply in a putative marital relationship when one spouse retains control of quasi-marital property after the parties separate.
Family Code section 2251 reads: "(a) If a determination is made that a marriage is void or voidable and the court finds that either party or both parties believed in good faith that the marriage was valid, the court shall: [¶] (1) Declare the party or parties to have the status of a putative spouse. [¶] (2) If the division of the property is in issue, divide, in accordance with Division 7 (commencing with Section 2500), that property acquired during the union which would have been community property or quasi-community property if the union had not been void or voidable. This property is known as `quasi-marital property. [¶] (b) If the court expressly reserves jurisdiction, it may make the property division at the time after the judgment."
Rosabel argues that Grimilda should be estopped from challenging title to the 25th Street property because she did not act promptly after she learned of the dissolution in 1988, and because she later remarried. However, neither of these facts gives rise to an estoppel. Grimilda did nothing to mislead Gerard and Gerard did not change his position to his detriment in reliance on anything that Grimilda did or failed to do. (See California Sch. Employees Assn. v. Jefferson Elementary Sch. Dist. (1975) 45 Cal.App.3d 683, 692-693.)
There is no basis for Rosabels argument that the 25th Street property should not have been treated as community property because the assets used to acquire it were not traced to a community source. Because property " `acquired by purchase during a marriage is presumed to be community property, . . . the burden is on the spouse asserting its separate character to overcome the presumption. " (In re Marriage of Mix (1975) 14 Cal.3d 604, 610-611, quoting See v. See (1966) 64 Cal.2d 778, 783.) The same rule applies to quasi-marital property. "The proportionate contribution of each party is immaterial [because] the property is divided as community property would be upon the dissolution of a valid marriage." (Vallera v. Vallera (1943) 21 Cal.2d 681, 683-684; see Fam. Code, § 2251.) It was Rosabels burden to prove that the 25th Street property was purchased with Gerards separate assets. Rosabel did not proffer any evidence as to the source of the funds used to purchase the property. Consequently, the court could rely on the presumption that the 25th Street property was purchased with community funds.
Finally, we cannot agree that the trial courts conclusion "ignores" Rosabels good-faith belief in the validity of her marriage to Gerard and "slights" Gerards second family. Nor can we agree that the decision "punish[es]" innocent parties. It appears that Rosabel is also a victim of Gerards deception. We are not unsympathetic with the predicament in which she finds herself upon discovering that the home she shared with Gerard and their children, and which Gerard told her belonged to him, in fact belongs to his former wife. Nonetheless, if, as the trial court found, Gerard obtained his title fraudulently, Rosabels innocence does not diminish Grimildas rights.
II. Cancellation of 1991 Grant Deed
Rosabel argues that under Evidence Code section 662 Gerard, as the legal title holder of the 25th Street property under the 1991 grant deed, was presumed to be the owner of the full beneficial title. Although the presumption can be rebutted by clear and convincing evidence, she argues that the presumption is not overcome simply because the title holder is in a confidential relationship with another. However, "Evidence Code section 662 does not apply to all quiet title actions. As its express terms state, it applies when valid legal title is undisputed and the controversy involves only beneficial title." (Murray v. Murray (1994) 26 Cal.App.4th 1062, 1068.) Here, legal title is hardly undisputed. The very issue in controversy is legal title to the property—held either by Grimilda and Gerard as joint tenants pursuant to the 1983 grant deed, or Gerard only pursuant to the 1991 grant deed.
Evidence Code section 662 reads: "The owner of the legal title to property is presumed to be the owner of the full beneficial title. This presumption may be rebutted only by clear and convincing proof."
Rosabel also relies on the presumptions set forth in Evidence Code sections 622, and 1600. Rosabel does not cite to section 622, but she argues that the deed recites the property was conveyed for valuable consideration. However, the presumptions in those sections of the Evidence Code are not conclusive as to the payment of consideration (Wilson v. Wilson (1960) 54 Cal.2d 264, 269), or as to the execution and delivery of the deed (Rousseau v. Hurtado (1954) 122 Cal.App.2d 705, 715). Here, the evidence amply supports the finding that there was neither consideration for transfer of Grimildas interest to Gerard nor execution and delivery of the deed. Rosabel contends Grimilda did not rebut the presumption of execution and delivery of the deed because she "presented no evidence of acts of dominion inconsistent with her delivery of the deed to [Gerard], such as retention of possession of the property, payment of taxes and insurance, or attempted conveyances." She also argues that Grimilda knew that Gerard and Rosabel remodeled the 25th Street property and resided there from 1991 until Gerards death, while Grimilda had remarried and maintained her residence at a different address. However, "[t]he very basis of [Grimildas] case is the fraud of [Gerard] in procuring the deed. If it were fraudulently obtained the mere manual tradition of it could not be in a legal sense a delivery. Execution and delivery of such an instrument depends upon more than the mechanical acts of signing it and passing it to another person. Apparent consent is not real or free when obtained through fraud, undue influence, or mistake." (Cox v. Schnerr (1916) 172 Cal. 371, 376.) The trial court could reasonably conclude that Grimildas failure to exercise dominion over the property was explainable because the property had been used for Gerards businesses since it was acquired in 1983, and he continued to use the front portion for that purpose after he married Rosabel and until his death.
Evidence Code section 622 reads: "The facts recited in a written instrument are conclusively presumed to be true as between the parties thereto, or their successors in interest; but this rule does not apply to the recital of a consideration."
Evidence Code section 1600 reads: "(a) The record of an instrument or other document purporting to establish or affect an interest in property is prima facie evidence of the existence and content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed if: [¶] (1) The record is in fact a record of an office of a public entity; and [¶] (2) A statute authorized such a document to be recorded in that office. [¶] (b) The presumption established by this section is a presumption affecting the burden of proof."
Moreover, Rosabel does not address the trial courts findings (a) that "the deed in question does not pass muster on its face. The deed appears suspect, as if pasted together into its current form"; and (b) that Grimildas testimony that she was misled regarding the purpose of the 1991 grant deed was corroborated by her agreement in 2003 to use a portion of a joint loan to pay off the entire mortgage owed on the 25th Street property, when she purportedly was no longer an owner of the property. Similarly, there is no significance to the absence of evidence as to who completed and recorded the 1991 grant deed. "[T]he circumstances in evidence were sufficient to sustain the courts finding that such alterations [and recordation] were made for the purpose of depriving [Grimilda of her] undivided interest [in the 25th Street property]. It was not necessary that there be direct proof showing identity of the person who committed the forgery" or the person who later recorded the 1991 grant deed. (Johnston Realty Corp. v. Showalter (1926) 80 Cal.App. 176, 181.)
Nor did the court erroneously shift the burden of proof to Rosabel by presuming that Gerard exercised undue influence to persuade Grimilda to execute the 1991 grant deed. A "presumption of . . . undue influence . . . arises where a confidential relationship exists between the parties, and the one in whom confidence is reposed actively participates in a transaction whereby he obtains a gift from or advantage over the other; such a presumption . . . casts upon the party who has gained the advantage the burden of rebutting it and showing fairness and good faith." (Fish v. Security-First Nat. Bank (1948) 31 Cal.2d 378, 384, overruled on other grounds in Estate of Propst (1990) 50 Cal.3d 448, 461-462.) "While, of course, the burden is upon [a] plaintiff to prove undue influence by clear, satisfactory and convincing evidence [citation], that burden is met when advantage gained by a defendant through reliance by a grantor upon a confidential relationship is shown and the defendant fails to go forward with evidence to dispel the presumption of undue influence arising therefrom." (Pailhe v. Pailhe (1952) 113 Cal.App.2d 53, 62.)
Rosabel contends Grimilda failed to show she had a confidential relationship with Gerard regarding the 25th Street property at the time of the execution of the 1991 grant deed because at that time, the parties were not married to each other, they had separated, and Grimilda had remarried. We disagree. "The existence of a confidential relationship is generally based on trust and confidence and is a question of fact." (In re Marriage of Baltins (1989) 212 Cal.App.3d 66, 88.) "Such a relationship may arise between two persons even though they have no formal relationship such as affinity or consanguinity, or attorney and client, principal and agent, trustee and beneficiary." (Kloehn v. Prendiville (1957) 154 Cal.App.2d 156, 160.) "It is true that the mere fact that a relationship is `friendly and intimate does not necessarily characterize it as a `confidential relationship [citation] but it is also true that confidential relations `may be said to exist whenever trust and confidence is reposed by one person in the integrity and fidelity of another. " (Id. at pp. 160-161.) Here, the evidence supported a finding that despite Grimildas discovery of the 1978 dissolution, her separation from Gerard and her subsequent remarriage, Grimilda reposed complete faith in Gerards control over their jointly owned properties acquired while they were living together either as husband and wife or in a relationship that Grimilda thought was a valid marriage. Grimildas failure to question Gerard regarding the incomplete deed was understandable since until that time Gerard had never aroused her suspicions concerning the handling of their jointly owned properties or indicated an intention to sever the joint tenancies.
"It may be conceded . . . that in order to establish fraud or undue influence to defeat th[e] conveyance[] of title the evidence must be clear and convincing. But that is a rule of evidence directed to the trial court, and it must be presumed that in reaching the conclusion set out in the findings the court was governed by those considerations in weighing the evidence." (Ford v. Ford (1919) 44 Cal.App. 415, 418; see Shupe v. Nelson (1967) 254 Cal.App.2d 693, 700.) That there were discrepancies in Grimildas testimony, or that her testimony was partially rebutted by Castro, does not show that the court failed to hold Grimilda to her burden of proof, or improperly shifted the burden to Rosabel.
We also reject Rosabels argument that Grimilda failed to meet her burden of proving that her late discovery of the completed 1991 grant deed was reasonable. Rosabel argues that "Gerards alleged request that Grimilda sign a blank deed, ignoring normal notary procedures and his own normal practice, were facts which would make a reasonably prudent person suspicious. Further, the grant deed was recorded in September 1991 and became a public record, and could have been discovered at any time before 2004. Grimilda should be charged with knowledge of this public record." However, Grimilda testified that she signed the deed because she believed Gerard wanted to use it to refinance the mortgage on the 25th Street property. Concededly, Grimilda was then aware of the 1978 dissolution, and she had remarried. But, Grimilda had permitted Gerard to continue using and managing the parties jointly owned properties. The property was in joint tenancy and Gerard had never sought to sever the tenancy. The trier of fact was entitled to find that Grimilda had no reason to be suspicious or to check whether the 1991 grant deed had been recorded. "[T]he constructive notice imparted by virtue of the recording statutes has no applicability here. [Citation.] Such notice is designed to inform prospective purchasers and mortgagees regarding the status of title to the property. (Civ. Code, § 1213.) Were the rule otherwise, an owner and possessor of the real property would be required to periodically check the official records for wild deeds to insure that the statute of limitations on a slander of title action had not run." (Arthur v. Davis ( 1981) 126 Cal.App.3d 684, 691, fn. 4, italics in original.) The evidence establishes that it was not until some time after April 2004 that Grimilda learned of the completed and recorded 1991 deed and realized that Gerard had changed the title to the 25th Street property, thereby alerting her that he was claiming sole ownership of the property. Viewing the evidence in the light most favorable to Grimilda, we see no reason to disturb the trial courts ruling that Grimildas late discovery of the completed 1991 grant deed was reasonable under the circumstances.
Finally, Rosabel contends the court erred in limiting her counsels cross-examination of Grimilda. During cross-examination of Grimilda regarding the 1991 grant deed, which had been admitted into evidence, Rosabels counsel asked Grimilda if she was trained as a notary public at the time she signed the deed. Grimilda replied, "We going back to the notary public. There w[ere] no instructions whatsoever to become a notary public. He only assign[s] you —." At that point, Rosabels counsel interrupted the witness, telling her that her answer was not responsive to his question. The court then stated, "Youre forming the question in such a way that youre combining her knowledge as a notary public—which is really an objectionable question but I dont hear anyone saying anything. So shes telling you as a notary, I wasnt trained in anything like that. So its a question thats really—its not leading to any evidence that this court can use based on the way its being [asked]." Rosabels counsel replied, "Okay." The court continued, "Its basically assuming that shes had certain training in notary, which we have not established. [¶] So its really a question without a foundation; so thats why its confusing both to the witness and to the court because I dont know what shes saying yes to or no to." Counsel did not pursue the issue, stating only, "I dont have any further questions about this exhibit." Contrary to Rosabels contention, the court did not prevent her from pursuing this line of questioning. It pointed out that counsels question lacked a proper foundation and was difficult to understand, and Rosabels counsel made no attempt to ask Grimilda any further questions on the subject. There was no improper restriction on counsels cross-examination.
III. Statute of Limitations and Doctrine of Laches
In her answer, Rosabel alleged that Grimildas action was barred by the statute of limitations set forth in Code of Civil Procedure sections 318, 319, 320, 321, 338, and 343. The court found that Grimildas action was not time-barred because "the commencement of the running of the limitation period [was] postponed until `the plaintiff discover[ed] or should have discovered the facts essential to [her] cause of action.
Code of Civil Procedure, section 318 reads: "No action for the recovery of real property, or for the recovery of the possession thereof, can be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the property in question, within five years before the commencement of the action."
Code of Civil Procedure, section 319 reads, in relevant part: "No cause of action . . . arising out of the title to real property, . . . can be effectual, unless it appear that the person prosecuting the action, . . . or the ancestor, predecessor, or grantor of such person was seized or possessed of the premises in question within five years before the commencement of the act in respect to which such action is prosecuted . . . ."
Code of Civil Procedure section 320 reads: "No entry upon real estate is deemed sufficient or valid as a claim, unless an action be commenced thereupon within one year after making such entry, and within five years from the time when the right to make it descended or accrued."
Code of Civil Procedure section 321 reads: "In every action for the recovery of real property, or the possession thereof, the person establishing a legal title to the property is presumed to have been possessed thereof within the time required by law, and the occupation of the property by any other person is deemed to have been under and in subordination to the legal title, unless it appear that the property has been held and possessed adversely to such legal title, for five years before the commencement of the action."
At the time the answer was filed on March 10, 2005, Code of Civil Procedure section 338 read, in relevant part, that certain actions were to be commenced "[w]ithin three years," including "[a]n action for relief on the ground of fraud or mistake. The cause of action in that case is not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake." (Code Civ. Proc., § 338, subd. (d).) In 2006, the Legislature made a nonsubstantive change by eliminating the words "to be," in subdivision (d) of section 338. (Stats. 2006, ch. 538, § 62.)
Code of Civil Procedure section 343 reads: "An action for relief not hereinbefore provided for must be commenced within four years after the cause of action shall have accrued."
""[F]acts alleged in a complaint authorizing relief both to quiet title and to cancel an instrument state but one cause of action. . . . But this does not mean that the cause of action is necessarily one to quiet title. Quieting title is the relief granted once a court determines that title belongs in plaintiff." (Leeper v. Beltrami (1959) 53 Cal.2d 195, 214 (Leeper).) In Leeper, the court held the "sensible" approach is to "look beyond the relief sought, and to view the matter from the basic cause of action giving rise to the plaintiffs right to relief." (Ibid.) The Leeper court cited with approval Ephraim v. Metropolitan Trust Co. (1946) 28 Cal.2d 824, 833, in which the court "held that, where the complaint is in two counts, one to quiet title, and one to cancel a deed, if the count to quiet title depends upon the cancellation count, the complaint must stand or fall on the cancellation count," and many cases "holding that, where the legal title is in the defendant, and the plaintiff seeks to quiet title on the ground defendants title was secured from plaintiff by fraud, the plaintiff must plead and prove facts constituting the fraud." (Leeper, supra, at p. 214.)
"Ordinarily a suit to set aside and cancel a void instrument is governed by section 343 of the Code of Civil Procedure. [Citation.] However, when the gravamen of the cause of action stated involves fraud or a mistake, Code of Civil Procedure, section 338[] is the statute of limitations applicable and the cause of action is not deemed to have accrued until the discovery of the facts constituting the [fraud or] mistake." (Zakaessian v. Zakaessian (1945) 70 Cal.App.2d 721, 725; see Turner v. Milstein (1951) 103 Cal.App.2d 651, 658.) The same rule of discovery applies to Grimildas cause of action to impose a constructive trust. (Security First Nat. Bank v. Ross (1963) 214 Cal.App.2d 424, 429-430.)
In this case, the gravamen of Grimildas claim is that she is entitled to cancel the 1991 grant deed, impose a constructive trust over the 25th Street property, and quiet title in the property because of Gerards fraud or undue influence in persuading her to sign the 1991 grant deed. Since Grimilda claims title under a deed of joint tenancy, the possession and use of the property by Gerard was not adverse to her. (See Cole v. Cole (1956) 139 Cal.App.2d 691, 696 ["The fact that defendant gave the decedent possession of the property until his death did not destroy the joint tenancy"].) That an early investigation would have revealed the misrepresentation regarding the 1991 grant deed will not alone bar recovery. "[W]here one is justified in relying, and does in fact rely, upon false representations, his right of action is not destroyed merely because opportunities for examination or means of knowledge were open to him where no legal duty devolved upon him to employ such means of knowledge." (Stevens v. Marco (1956) 147 Cal.App.2d 357, 378-379.) "A party, having information sufficient to arise suspicion, is not precluded from recovery where the [opposing party] knows the facts and successfully allays the suspicion by a false and fraudulent representation. [Citation.] Negligence of a plaintiff is no defense to an intentional misrepresentation. [Citation.] . . . `"Every case must be judged for itself, and the circumstances which warrant or forbid relief cannot be scheduled."" (Blackman v. Howes (1947) 82 Cal.App.2d 275, 280.) Gerards reason for asking Grimilda to sign the incomplete grant deed in 1991 was not such that the falsity of the reason "must have been so obvious to [Grimilda] as to preclude any justifiable reliance thereon by [her]." (Ibid.) Both before and after Grimilda signed the 1991 grant deed, Gerard continued to treat the property as jointly owned. The trial court appropriately concluded that no cause of action in favor of Grimilda accrued until April 2004 when Grimilda discovered the completed 1991 grant deed purporting to transfer the property to Gerards sole ownership. She filed this action within months thereafter, well within any applicable statute of limitations.
We are similarly unpersuaded that laches bars the cause of action to cancel the 1991 deed because the complaint was not filed until after Gerard suffered an incapacitating stroke. This issue was not raised below, and the record does not reflect such a delay in the assertion of Grimildas rights that the defense of laches can be said to exist as a matter of law. Any delay here was caused by the conduct of Gerard in failing to alert Grimilda that the 1991 grant deed had been completed to transfer the property into his name alone. The trial courts findings, amply supported by the evidence, establish that Grimilda acted promptly when she discovered these facts. Her action is not barred by laches.
IV. Scope of Judgment
Rosabel contends that the judgment goes beyond the demand of the complaint by quieting title to the entire property in Grimilda, rather than confirming only a one-half interest in Grimilda and recognizing a one-half interest in the heirs of Gerard, as successors to the interest which Gerard held in the property. Procedurally there was no error. " `The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in the complaint; but in any other case, the Court may grant him any relief consistent with the case made by the complaint and embraced within the issue. (Code Civ. Proc., § 580.) The court in a cancellation action may grant any relief consistent with the case made by the complaint and embraced within the issues although not specifically prayed for. . . . Thus, when an answer is filed, the case becomes one in which the court is authorized regardless of the prayer to grant any relief consistent with the plaintiffs averments. The jurisdiction of the court to grant any particular relief depends not on the prayer but on the issues—that is, on the scope of the complaint and the issues made or which might have been made under it—and any relief consistent with the issues raised may be granted regardless of the prayer." (Wright v. Rogers (1959) 172 Cal.App.2d 349, 367-368.) Grimildas complaint expressly requested cancellation of the 1991 grant deed. Having determined that the deed should be cancelled, the court appropriately determined the resulting status of title to the property.
Nor was there any substantive error in the relief granted. With the 1991 deed cancelled, title to the property was determined by the 1983 deed, under which Grimilda and Gerard held title as joint tenants. (Estate of Casella (1967) 256 Cal.App.2d 312, 323 [when fraudulent deed is set aside, joint tenancy deed restored].) The joint tenancy was not severed before Gerards death. (See Civ. Code, § 683.2 [severance of joint tenants interest without consent; severance by written declaration]; Dando v. Dando (1940) 37 Cal.App.2d 371, 372-373 [joint tenants filing of action for partition does not sever joint tenancy].) Therefore, by virtue of her right of survivorship, Grimilda obtained the full legal and beneficial title to the property upon Gerards death. (See Huber v. Huber (1946) 27 Cal.2d 784, 790; King v. King (1951) 107 Cal.App.2d 257, 259-260; Dando v. Dando, supra, 37 Cal.App.2d at pp. 372-373.)
As of January 1, 2002, Probate Code section 5601 et seq., invalidates certain nonprobate transfers by spousal joint tenancies entered into before termination of the marriage, unless there is clear and convincing evidence that the decedent intended the property to pass to the former spouse even after termination of the marriage. However, the probate sections do not apply to joint tenancies created between former spouses after dissolution of marriage becomes final, or where the dissolution occurred before January 1, 2002. (Prob. Code, § 5604; see Sen. Com. on Judiciary, Analysis of Assem. Bill No. 873 (2001-2002 Reg. Sess.) as amended May 10, 2001, pp. 9-10.)
DISPOSITION
The judgment is affirmed.
We concur:
McGuiness, P. J.
Siggins, J.