Opinion
B201207
7-30-2008
REBECCA BALL, Cross-Complainant and Appellant, v. MELISSA BEDERMAN et al., Cross-Defendants and Respondents.
Matthew C. Long for Cross-Complainant and Appellant. Wright, Finlay & Zak, Jonathan M. Zak and Jarlath M. Curran for Cross-Defendants and Respondents.
Not to be Published
Appellant Rebecca Ball appeals from the trial courts grant of summary judgment in favor of Respondents Melissa Bederman ("Bederman"), the 321 W. 57th Street Trust, and Fidelity Bancorp Funding, Inc. (collectively "Respondents"). In a cross-complaint against Respondents, Rebecca sought to partition certain real property in which she claimed a one-half ownership interest as the result of a 1991 grant deed that purported to transfer title to the property from Johnnie Ball, Rebeccas husband, to Rebecca. The trial court granted summary judgment on the grounds that a 1990 civil judgment permanently enjoined Johnnie from making any claim to legal title to the property, and therefore, invalidated Rebeccas ownership interest in the property as a matter of law. On appeal, Rebecca raises two arguments. First, she contends that the 1990 judgment was an unlawful restraint on alienation under Civil Code section 711. Second, she claims that Respondents are collaterally estopped from challenging her ownership interest because a subsequent 2001 civil judgment declared that Rebecca had a valid ownership interest in the property. For the reasons set forth below, we affirm.
For clarity and convenience, and not out of disrespect, we refer to the Ball family members by their first names.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. Rebeccas Cross-Complaint for Partition by Sale
On April 24, 2006, Rebecca filed a verified cross-complaint against Respondents, seeking a partition by sale of certain real property located at 321 W. 57th Street, Los Angeles, California (the "Property"). In her complaint, Rebecca alleged that she and Gilbert Ball each owned an undivided one-half interest in the Property. Rebecca asserted that she acquired her ownership interest in the Property via a 1991 grant deed, which she attached as an exhibit to her complaint. That grant deed was recorded in the Los Angeles County Recorders Office on April 8, 1991, and provided that Johnnie Ball granted his title and interest in the Property to his wife, Rebecca.
In her complaint, Rebecca further alleged that her ownership interest in the Property was subsequently confirmed by a 2001 civil judgment, which she also attached as an exhibit to her complaint. That civil judgment was entered in Los Angeles County Superior Court on July 5, 2001, and was recorded in the Los Angeles County Recorders Office on September 10, 2001 (the "2001 Judgment"). It provided that, in the matter of Rebecca Ball v. Gilbert Ball, Case No. BC232022, "IT IS ORDERED AND ADJUDGED that plaintiff Rebecca Ball is the owner of an undivided one half interest in the real property" located at 321-327 W. 57th Street, Los Angeles, California, and that "the property be partitioned." The 2001 Judgment did not describe the nature of the underlying action brought by Rebecca nor did it discuss the basis for the courts ruling.
Rebeccas cross-complaint against Respondents also alleged that Gilbert obtained a loan on the Property on May 14, 1999, and thereafter defaulted on the loan. According to the complaint, Bederman purchased the Property at a foreclosure sale in 2003 and then transferred her interest in the Property to the 321 W. 57th Street Trust via a grant deed signed on September 12, 2003. The complaint sought a judgment partitioning the Property and dividing the proceeds of the sale.
II. Respondents Motion for Summary Judgment
On May 2, 2006, Respondents filed a motion for summary judgment. The motion was accompanied by a memorandum of points and authorities, a separate statement of undisputed facts, and a request for judicial notice with five attached exhibits. In their motion, Respondents argued that Rebeccas partition action failed as a matter of law because she did not have a valid ownership interest in the Property.
Respondents presented evidence that, on August 28, 1989, Rosa and Gilbert Ball brought a civil action against Johnnie and other third parties, asserting claims for quiet title, injunctive relief, forgery, fraud, and conversion (the "1989 Action"). The complaint filed in the 1989 Action alleged that Rosa and her son, Gilbert, owned the Property in joint tenancy, and that Rosas other son, Johnnie, forged their signatures on a 1989 grant deed that purported to transfer title to the Property to Johnnie and/or a third party. The complaint also alleged that Johnnie fraudulently took possession of other real and personal property belonging to the elderly Rosa and that he sold that property without sharing any of the proceeds with her. In addition to compensatory and punitive damages, Rosa and Gilbert sought an order quieting title in the Property and declaring that Johnnie did not have legal title or any valid ownership interest.
In support of their motion, Respondents also offered evidence that on June 25, 1990, the trial court entered a judgment in favor of Rosa and Gilbert in the 1989 Action (the "1990 Judgment"). The 1990 Judgment provided that "Rosa L. Ball and Gilbert Ball are the legal owners as joint tenants" of the Property, and that "[t]he deed purporting to transfer the interests of Rosa L. Ball and Gilbert Ball in the real property described above to Johnnie Ball . . . is a nullity." The 1990 Judgment further stated that "Johnnie Ball . . . [is] hereby permanently enjoined from making any claim to legal title to the real property described above, from exercising or attempting to exercise any management or control over the real property described above, and from interfering with Rosa L. Ball and Gilbert Ball in their management of the property . . ." A notice of entry of the 1990 Judgment was filed in Los Angeles County Superior Court on July 13, 1990, and was recorded in the Los Angeles County Recorders Office on April 5, 1991.
Respondents presented further evidence that on December 7, 1990, approximately six months after the 1990 Judgment was entered, a grant deed purporting to transfer Rosas title and interest in the Property to Johnnie was recorded in the Los Angeles County Recorders Office. Then, on April 8, 1991, three days after the 1990 Judgment was recorded, a grant deed purporting to transfer Johnnies title and interest in the Property to Rebecca also was recorded. On the basis of the documentary evidence, Respondents contended that, because the 1990 Judgment permanently enjoined Johnnie from claiming legal title to the Property, any ownership interest purportedly obtained by Johnnie after entry of the 1990 judgment was void. Thus, Respondents asserted, any subsequent ownership interest acquired by Rebecca from Johnnie was likewise void as a matter of law.
Rebecca filed an opposition to the motion for summary judgment. In her opposition brief, Rebecca argued that the 1990 Judgment was an invalid restraint on alienation. She also contended that Respondents were collaterally estopped from challenging the validity of her ownership interest in the Property because the 2001 Judgment adjudicated that same issue in Rebeccas favor. Following a hearing on the motion, the trial court granted summary judgment in favor of Respondents on the grounds that Rebecca did not have a valid ownership interest in the Property. On August 2, 2007, Rebecca filed a timely notice of appeal.
III. Request for Supplemental Briefing
The parties designated the Clerks Transcript, along with the Reporters Transcript of the summary judgment hearing, as the record on appeal. The Clerks Transcript included Respondents notice of motion and motion for summary judgment, their separate statement of undisputed facts, and their request for judicial notice. It also contained Rebeccas notice of opposition to the summary judgment motion and accompanying memorandum of points and authorities, but it did not include any separate statement of facts or supporting evidence submitted by Rebecca in opposition to the motion.
On May 30, 2008, following an initial review of the record, this Court asked the parties to file supplemental briefs to address whether there were grounds to affirm the judgment because Rebecca failed to submit any evidence in opposition to Respondents motion for summary judgment. On June 9, 2008, Rebecca submitted a supplemental brief in which she asserted that she had filed a separate statement of facts and supporting evidence with her opposition to the motion. Rebecca also submitted a document entitled "Appellants Attachment To Supplemental Brief," which she alleged was a copy of the separate statement of facts that she previously filed. On June 9, 2008, we denied Rebecca leave to file the "Appellants Attachment To Supplemental Brief."
DISCUSSION
I. Standard of Review
"[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted.) "Once the [movant] has met that burden, the burden shifts to the [other party] to show that a triable issue of one or more material facts exists as to that cause of action . . . ." (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra, at p. 850.) The party opposing summary judgment "may not rely upon the mere allegations or denials of its pleadings," but rather "shall set forth the specific facts showing that a triable issue of material fact exists . . ." (Code Civ. Proc., § 437c, subd. (p)(2).) A triable issue of material fact exists where "the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar v. Atlantic Richfield Co., supra, at p. 850.)
Where summary judgment has been granted, we review the trial courts ruling de novo and independently examine the record to determine whether there is a triable issue of material fact. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 860.) In performing our de novo review, we consider all of the evidence presented by the parties in connection with the motion (except that which the trial court properly excluded) and all of the uncontradicted inferences that the evidence reasonably supports. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) In so doing, we strictly construe the moving partys evidence and liberally construe the opposing partys, "accept[ing] as undisputed only those portions of the moving partys evidence that are uncontradicted." (Hernandez v. Department of Transportation (2003) 114 Cal.App.4th 376, 382.) We affirm summary judgment where it is shown that there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)
II. Respondents Satisfied Their Burden of Showing That Rebecca Could Not Establish the Elements of Her Cause of Action.
In moving for summary judgment, Respondents met their initial burden of showing that Rebecca could not establish a cause of action for partition because she did not possess a valid ownership interest in the Property. (See Code Civ. Proc., § 437c, subd. (p)(2) ["A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action . . . cannot be established . . ."].) Respondents presented undisputed evidence that Rebeccas husband, Johnnie, was permanently enjoined by the 1990 Judgment from making a claim to legal title to the Property. In accordance with the 1990 Judgment, Johnnie was precluded from acquiring any ownership interest in the Property after entry of the judgment on June 25, 1990. The December 7, 1990 grant deed that purported to transfer title to the Property from Rosa to Johnnie was therefore void, and Johnnie did not obtain a valid ownership interest in the Property via this deed.
Respondents also presented undisputed evidence that the 1990 Judgment was recorded in the Los Angeles County Recorders Office on April 5, 1991, three days before the recording of the April 8, 1991 grant deed that purported to transfer title to the Property from Johnnie to Rebecca. The recording of the 1990 Judgment provided Rebecca with constructive notice that Johnnie did not have, and could not obtain, a valid ownership interest in the Property, nor could he transfer any such interest to Rebecca. (See Civ. Code, § 1214 ["Every conveyance of real property or an estate for years therein, other than a lease for a term not exceeding one year, is void . . . as against any judgment affecting the title, unless the conveyance shall have been duly recorded prior to the record of notice of action."].) Accordingly, the April 8, 1991 grant deed that purported to transfer title to the Property from Johnnie to Rebecca was likewise void, and Rebecca did not obtain a valid ownership interest in the Property via this deed. Because the evidence submitted by Respondents demonstrated that Rebecca did not acquire a valid ownership interest in the Property from Johnnie, Respondents satisfied their initial burden of showing that Rebecca could not establish an actionable claim for partition.
The April 8, 1991 grant deed was dated April 5, 1991, the same date that the 1990 Judgment was recorded. However, Johnnies signature on the deed was not notarized until April 8, 1991, and the deed itself was not recorded until that date.
III. Rebecca Failed to Establish That She Met Her Burden of Showing the Existence of a Triable Issue of Material Fact.
Once Respondents satisfied their initial burden on summary judgment, the burden shifted to Rebecca to produce admissible evidence showing that a triable issue of material fact existed. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) Rebecca was not entitled to rely on the allegations of her pleadings, but rather was required to set forth specific facts establishing the existence of a genuine triable issue and to support those facts with admissible evidence. (Code Civ. Proc., § 437c, subd. (p)(2); see also Lyons v. Security Pacific Nat. Bank (1995) 40 Cal.App.4th 1001, 1006-1007 ["Without at least a separate statement and evidence in the form of supporting affidavits or declarations, it is impossible to demonstrate the disputed facts."].) On appeal, Rebecca raises two arguments to refute Respondents showing that she did not have a valid ownership interest in the Property. We address each of these arguments in turn.
A. The 1990 Judgment Was Not an Invalid Restraint on Alienation.
Rebecca first asserts that the 1990 Judgment permanently enjoining Johnnie from making any claim to legal title to the Property was an unlawful restraint on alienation under Civil Code section 711. Section 711 of the Civil Code states simply that "[c]onditions restraining alienation, when repugnant to the interest created, are void." (Civ. Code, § 711.) The California Supreme Court has held, however, that the statute "addresses only private restraints on alienation." (Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 693 [emphasis added].) It does not, for instance, apply to municipal ordinances or other government regulations. (See, e.g., Fisher v. City of Berkeley, supra, at pp. 692-693 ["Civil Code section 711 does not, and was never intended to, apply to municipal ordinances."]; Baker v. City of Santa Monica (1986) 181 Cal.App.3d 972, 987 [Civil Code section 711 "addresses only private restraint and not government regulations."].) Because Civil Code section 711 is directed against restraints in private contracts and conveyances, it likewise has no application to judgments or orders prescribed by a court of law. (See 12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 190, p. 249 [Civil Code section 711 "is directed against provisions in contracts or conveyances. It has no application to disabling restraints established by express statute or by the operation of rules of law . . ."].)
In this case, the 1990 Judgment was issued by a court following a trial on the merits. Its restrictive nature was specifically sought by Rosa and Gilbert in response to Johnnies forgery of their signatures on a 1989 grant deed purporting to transfer title to him. The provision in the 1990 Judgment permanently enjoining Johnnie from claiming any legal title to the Property was not intended to restrain Rosas or Gilberts right to transfer their ownership interest. Rather, its purpose was to protect the elderly Rosa from any similarly fraudulent conveyances attempted by Johnnie in the future. Rebeccas argument that the 1990 Judgment was an invalid restraint on alienation fails as a matter of law.
B. The Record on Appeal is Inadequate to Determine Whether Rebecca Demonstrated a Triable Issue Regarding Her Ownership Interest.
Rebecca also contends that Respondents were barred by the doctrine of res judicata or collateral estoppel from challenging the validity of her ownership interest because the 2001 Judgment specifically adjudicated that Rebecca did have a valid ownership interest in the Property. "`Traditionally, collateral estoppel has been found to bar relitigation of an issue decided at a previous proceeding "if (1) the issue necessarily decided at the previous [proceeding] is identical to the one which is sought to be relitigated; (2) the previous [proceeding] resulted in a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior [proceeding]." . . . [Citations.]" (People v. Carter (2005) 36 Cal.4th 1215, 1240.) Rebecca argues that the doctrine applies here because the 2001 Judgment was a final judgment on the merits, it decided the issue of Rebeccas ownership interest in the Property in her favor, and it became binding on all successors in interest to title in the Property when it was recorded in 2001. Rebecca thus asserts that the 2001 Judgment was sufficient to defeat Respondents evidentiary showing and that the trial court erred in granting summary judgment.
The party seeking to challenge an order on appeal has the burden of providing an adequate record for appellate review. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.) In this case, however, the record before us does not demonstrate the existence of a triable issue of material fact. Rebecca relies on the 2001 Judgment to support her collateral estoppel argument, but evidence of that document is not properly before this Court. Indeed, the record on appeal does not include any separate statement of facts filed by Rebecca, nor does it contain any supporting evidence submitted by her in opposition to Respondents summary judgment motion. The only opposition papers filed by Rebecca that are included in the record are her notice of opposition to the summary judgment motion and her accompanying memorandum of points and authorities. Although Rebecca claimed in her supplemental brief that she did file a separate statement of facts and supporting evidence with the trial court, she failed to properly augment the record to demonstrate that fact. In submitting her supplemental briefing to this Court, Rebecca neither offered any verification that her proposed attachment was a true and correct copy of the separate statement that she stated she had previously filed, nor made a request for judicial notice of the 2001 Judgment.
Moreover, even if we were to consider the 2001 Judgment as evidence on appeal, we still could not determine from the record before us whether that judgment should be given preclusive effect. The burden is on the party asserting collateral estoppel to establish the threshold elements of the doctrine. (Pacific Lumber Co. v. State Water Resources Control Bd. (2006) 37 Cal.4th 921, 943.) At issue in this appeal are two prior judgments — the 1990 Judgment which precludes Rebecca from asserting a valid ownership interest in the Property, and the 2001 Judgment which supports the opposite conclusion. Rebecca is asking us to give preclusive effect to the judgment that favors her, and to ignore the existence of the earlier judgment. She has not demonstrated an adequate basis for doing so. She presented no evidence to establish what claims were litigated in her 2001 action against Gilbert or whether any collateral attack on the validity of the 1990 Judgment was even considered by the trial court in issuing the 2001 Judgment. The 2001 Judgment itself is silent on these issues and simply provides that Rebecca has a valid ownership interest in the Property. As a result, we are unable to determine from the record whether the court in 2001 determined that the 1990 Judgment was invalid, a showing that has not been made here, or whether the parties precluded the court from considering that issue.
Finally, "[e]ven where minimum requirements for collateral estoppel are established, the doctrine will not be applied `if injustice would result or if the public interest requires that relitigation not be foreclosed. [Citations.]" (Roos v. Red (2005) 130 Cal.App.4th 870, 886-887.) Given the absence of evidence concerning the basis of the later judgment, we decline to award it preclusive effect on this record in light of the earlier judgment, recorded prior to Rebeccas asserted acquisition of title.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
We concur:
PERLUSS, P. J.
WOODS, J.