Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court for the County Los Angeles County Super. Ct. No. BC313185 of Los Angeles. Reva G. Goetz, Temporary Judge.
Mazur & Mazur, Janice R. Mazur and William E. Mazur, Jr. for Defendants and Appellants.
Law Offices of Lee W. Salisbury and Lee W. Salisbury for Plaintiff and Respondent.
COOPER, P. J.
SUMMARY
In this action to quiet title to real property, the evidence was insufficient to support the trial court’s determination that the grantor delivered a deed to the grantee with the present intent to transfer the property. The court’s judgment quieting title in the grantee must therefore be reversed.
FACTUAL AND PROCEDURAL BACKGROUND
Zina Brawer sued Harry and Evelyn Brawer to quiet title to a residential property on Crestwood Way in Los Angeles. The facts adduced at the trial are summarized in the light most favorable to the judgment. (See In re Angelia P. (1981) 28 Cal.3d 908, 924.)
Zina and Harry had known each other for many years. In 1994 Harry, without the knowledge of his wife Evelyn, allowed Zina to move into one of the units of a triplex he and Evelyn owned on Crestwood Way. Zina and Harry executed a lease under which Zina paid only $300 per month in rent, and Zina acted as de facto property manager for the Crestwood Way property.
Many years ago, Zina and Harry had married, but the marriage was bigamous as Harry was then married to Evelyn. Harry and Evelyn are still married, but have not lived together for 25 years.
In early 2003, Harry was scheduled to undergo double knee replacement surgery, and Zina became concerned about what would happen to her if Harry did not survive the surgery. Zina feared that Evelyn, who did not know Zina lived at the Crestwood Way property, would evict her if something happened to Harry. Harry, on his own initiative, purchased a blank grant deed, and deeded to Zina his 50 percent interest in the property. On January 24, 2003, Harry signed the grant deed and had it notarized.
On January 27, 2003, Harry drove to Zina’s apartment and presented the grant deed to her as a surprise. Harry also brought two copies of the deed, one for Zina and one for himself. When Harry gave the grant deed to Zina, he explained that he did not want the deed recorded until either he died or “it was the proper time to do it.” Harry did not tell Zina that the property would be given to her only upon his death. However, Zina testified it was her understanding that, when Harry handed her the deed, the property was still Harry’s, and her understanding was based on Harry’s telling her that she would not be the owner of the property until the deed was recorded.
That same day, Harry drove Zina to a nearby bank, where they opened a safety deposit box in both of their names. The grant deed was placed in an envelope, and Zina placed the envelope, along with two mortgage statements provided by Harry, into the safety deposit box. They locked the box, to which each of them kept a key, and returned to Zina’s residence.
On about March 20, 2003, about two weeks after Harry’s surgery, Evelyn, who was helping Harry after the surgery, found a copy of the deed in a kitchen drawer at Harry’s residence. Evelyn was upset, because she and Harry had spent a lot of money on the property, which had generated losses for years, and she thought the property should go to her (and Harry’s) daughter. According to Evelyn, Harry told her the deed had no meaning. Evelyn insisted that Harry come with her to her house to show her the deed. Evelyn opened the envelope and found the deed, which she was sure was the original, along with a letter to Evelyn. Harry took the deed and ripped it up along with the letter.
A copy of the handwritten letter, dated January 31, 2003, was admitted into evidence without objection, and read as follows: “Dear Evelyn: [¶] This letter is written in anticipation of my knee surgery operation. I am trying to tie up loose ends in case I don’t make it out of the operation. All my assets and property are arranged so that you are the beneficiary. I would like to address the Crestwood Way property. I have given Zina a copy of a deed (1/2 interest in the property). The original deed is in the walk-in closet of the master bedroom, in the white dresser, bottom drawer. I am giving you instructions to record it, should I die in the operation. I do this because I feel very sorry for her and do not want her to be homeless, as I found her some years ago. Please understand. [¶] Love, Harry.”
On April 15, 2003, Harry asked Zina for her key to the safety deposit box, and she gave it to him. On April 30, 2003, Harry went to the safety deposit box. He is the only one who went back to the safety deposit box and retrieved documents contained in it.
In July 2003, Harry called Zina to tell her he was listing the Crestwood property for sale, and Zina saw a “for sale” sign on the property. When she saw the “for sale” sign, Zina retained an attorney, Vikram Brar. Brar, who no longer represents Zina, testified that he had two or three conversations with Harry in July and August 2003, and that Harry told him:
In August 2003, Harry sent Zina a letter raising her rent; agreed to stop trying to sell the property; served Zina with a three-day notice to quit; and, with Evelyn, executed a deed (which was not recorded) transferring the property to Harry, Evelyn and their daughter in joint tenancy. In December 2003, Harry and Evelyn executed and recorded a quitclaim deed transferring the property from Harry and Evelyn as joint tenants to the Harry L. Brawer & Evelyn Brawer Living Trust.
· He (Harry) had “changed his mind” about deeding the property to Zina because she did not devote enough time to taking care of Harry.
Attorney Brar testified about his first telephone conversation with Harry as follows: “Well, regarding the immediate issue of trying to sell the house, he said that he would not sell the house, and he assured me that he would stop all action to try and sell the house. He stated to me that he had agreed to give [Zina] a half interest and had placed that – signed that deed and placed it in a jointly owned safety deposit box. However, later on he changed his mind about his desire to give it to her because, once he had surgery and was in the hospital, he felt that she hadn’t devoted enough time taking care of him at that time. [¶] But the end result of it all was that he was not going to sell the house and the deed still remained at least from what he told me in that safe deposit box. And it was one half hers, and therefore he wasn’t going to sell the house. And she could live there as long as she wanted.”
· Harry had put the original deed in the safety deposit box and it was still in the safety deposit box.
· Harry was selling the property because he needed the money.
Until Harry spoke with attorney Brar, Harry never told Zina that he either removed the grant deed from the safety deposit box or did not intend for her to own one-half of the property as a tenant in common with Evelyn.
In late March 2004, Zina engaged Robert Silverstein’s firm to file this quiet title action, and the complaint was filed on April 2, 2004. Thereafter, Silverstein, who also no longer represents Zina, had a conversation with Harry, who told Silverstein:
· Harry gave a copy of the deed to Zina;
· The original deed was hidden in Evelyn’s closet;
· Harry gave a letter of instructions to both Evelyn and Zina; and
· Harry put a copy of the deed in the safety deposit box.
Harry did not tell Silverstein that the original deed had been destroyed, or that Harry had been back to the safety deposit box.
The trial court concluded that Harry “did, in fact, deliver the original Grant Deed to Zina . . .” and found Harry’s testimony “not to be credible regarding his delivery of the deed . . . .” The court pointed to Harry’s inconsistent statements, in that (a) he told Brar in the summer of 2003 that the original deed had been placed in the safety deposit box and was still there in August 2003; (b) he told Silverstein in April 2004 that he put a copy of the deed in the safety deposit box; and (c) he testified at trial that he did not put either the original or a copy in the safety deposit box, but instead placed in it a letter to Evelyn in which he told her where he had put the grant deed and left her instructions about what to do with it in the event he did not survive his surgery. The court further found:
· Harry’s telling Zina that he wanted to wait to have the deed recorded did not mean that the transfer of the property was conditional or testamentary in nature. The evidence indicated Harry did not want Evelyn to find out about the transfer until after he died, not that the grant deed was not intended to be a valid gift until after his death.
· Harry delivered the deed to Zina with the present intent to transfer the property when he delivered it to Zina on January 27, 2001.
· Zina’s repeated statements at trial that she did not believe she was “the owner” of the property when Harry gave her the deed did not negate delivery of the deed. Zina’s testimony that she was not the owner “related to her understanding of whether she had stepped into the shoes of the owner and was responsible for paying the mortgage and other expenses related to the property in addition to other related ownership duties as Harry Brawer had asked [Zina] to wait to record the deed until his death OR ‘it was the proper time to do it.’ Both Harry Brawer and Zina Brawer testified that Zina Brawer had not assumed these responsibilities.”
Zina was not questioned about what she meant when she said she understood she was not the “owner” of the property.
In its final statement of decision, the trial court summarized:
“The Court has made and reiterates the finding that Harry Brawer transferred the deed to Zina Brawer with the present intent to transfer the subject property to Zina Brawer based on Harry’s conduct surrounding his preparation of the deed, giving the deed to Zina, opening the safe deposit box with Zina, and his subsequent removal of the deed from the safe deposit box. In addition, when Harry had the opportunity to try to further explain his intentions, on three different occasions, first to Vikram Brar, next to Robert Silverstein and last to this court, his story changed each time. It is noteworthy that Harry Brawer’s statements to Vikram Brar, closest in time to January 2003 when he gave the deed to Zina were not that he had not intended to give the property to Zina Brawer but that he ‘changed his mind.’ ”
Harry and Evelyn filed this timely appeal from the judgment in favor of Zina and from a later order denying their motion for a new trial.
DISCUSSION
Harry contends the evidence conclusively established there was no valid delivery of the deed with a present intent to transfer title. Specifically, Harry argues that Zina’s own testimony, as well as his testimony and that of other witnesses, unequivocally established that Harry had no present intent to immediately transfer the property to Zina, and that she would not own it until some future time when either Harry died or told her she could record the deed. In essence, the argument is that because the evidence showed both Harry and Zina believed the deed would not be effective until it was recorded, Harry could not have had the present intent to transfer the property when he gave the deed to Zina. We are compelled to agree with Harry.
The law we must apply is well-established. The test under which delivery is determined is whether the grantor intended to divest himself of title. “If he did, there was an effective delivery of the deed. If not, there was no delivery. The solution of this question is grounded entirely upon the intention of the grantor, and this essential matter of intention is a question of fact to be determined by the trial court from a consideration of all the evidence . . . .” (Hotaling v. Hotaling (1924) 193 Cal. 368, 382.) Moreover, if the evidence is conflicting, “delivery is almost conclusively determined in the trial court; as in other controversies of a predominantly factual character, the reviewing court will not weigh the evidence, and will affirm the judgment although the preponderance appears to favor the appellant.” (12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 296, p. 353, citing cases.)
While we are cognizant of the limits of our review, and of the rarity of circumstances under which an appellate court may reject a fact finding by a trial court on the question of a grantor’s intent, it appears that this is such a case. The trial court’s finding of delivery was expressly based on Harry’s conduct in preparing, signing and notarizing the deed; giving the deed to Zina; opening the safety deposit box with Zina; and later removing the deed from the box. The trial court, however, appears to have ignored the evidence, given by both Zina and Harry, of what Harry told Zina at the time Harry gave her the deed: namely, that she would not be the owner of the property until the deed was recorded. This evidence is crucial, and indeed is the only evidence – except for the physical transfer of the deed from Harry to Zina – of Harry’s intent at the time he gave Zina the deed. (See Follmer v. Rohrer (1910) 158 Cal. 755, 758 [“[m]anual tradition of the instrument is not enough; the transfer of possession must be with the intent of presently passing title, and must not be hampered by the reservation of any right of revocation or recall”]; cf. Obranovich v. Stiller (1963) 220 Cal.App.2d 205, 208 [“[e]ven if the document is manually delivered, but the evidence shows that the parties or the grantor intended the document to become operative only upon death, the document is testamentary in character and void as a deed”].)
First, as Harry points out, Zina repeatedly testified at trial that, after the deed was put in the safety deposit box, she did not believe she was the owner. For example:
“Q. And did Harry tell you that you wouldn’t become the owner until the property was – the deed was recorded?
“A. Of course, I understood that. I’m not mentally sick person as you call me.
“Q. So he told you that you would not be the owner of the property until the deed was –
“A. Until we recorded, absolutely true.
“Q. And it was your understanding that, until the deed was recorded, you had no ownership interest in the property.
“A. Of course not. And I did never claimed it.”
When counsel questioned Zina about whether she collected rents, paid taxes, or made mortgage payments on the property, she stated:
“A. Mr. Etting, to save time, I can tell no, and I answer no everything because I never own it. I never claim I did. I follow Harry’s direction until we record it, it’s not mine.
“Q. I’m sorry?
“A. I follow Harry direction until we record it, it’s not mine. . . .”
And:
“Q. Was it your understanding at the time that Mr. Brawer handed you the deed that the property was still Harry’s?
“A. Yes. It was still Harry’s. [¶] . . . [¶]
“Q. That understanding that you just described that it was still Harry’s was based upon what Harry told you?
“A. Yes. That we need to record it – [¶] . . . [¶]
“Q. Was it explained clearly to you by Mr. Brawer that, until the property, the deed was recorded, it would be Harry’s?
“A. He did not talk about it. He never told it. It is his – he just told me we need to record it appropriate time – ”
Second, Harry’s testimony agreed with Zina’s. He testified that he told Zina a deed could only become effective when it is recorded, and that he had always believed a deed was not effective until it was recorded. Indeed, the trial court itself summarized the state of the evidence in midtrial as follows:
“The testimony is in front of this court it was [Zina’s] belief based on what [Harry] told her that the deed would not be – that she did not own the property until the deed was recorded. That’s the state of the evidence.”
Other witnesses also corroborated Harry’s claim that his intention was to transfer the property to Zina if he died. For example, Rabbi Montag testified that Harry told him that “if he were God forbid to die in surgery . . ., then the property was to be transferred to [Zina] upon his death.”
Rabbi Montag also testified that Harry told him that “there was a deed at the home of his wife in her bedroom,” and also that, if he were to die, Rabbi Montag was to be in charge of his burial arrangements.
In the end, the analysis comes down to this. It does not matter whether or not Zina believed she owned the property when Harry gave her the deed. As Hotaling teaches, the question of delivery “is grounded entirely upon the intention of the grantor” (Hotaling v. Hotaling, supra, 193 Cal. at p. 382), not the grantee. What is important, however, is the source of Zina’s belief that she did not yet own the property. That source, indisputably, was Harry, as the trial court expressly stated in midtrial: the state of the evidence was that “it was [Zina’s] belief based on what [Harry] told her that the deed would not be – that she did not own the property until the deed was recorded.” However, if Harry believed, as he testified and as he told Zina, that transfer of ownership does not occur until a deed is recorded, Harry could not have had the intent to divest himself of title to the property on January 27, 2003, when he gave Zina the deed. Certainly he had the intent to transfer the property, but on a future date: when it was recorded, whether upon his death or at some other future date.
Zina insists that attorney Brar’s testimony (see p. 4 & fn. 4, ante) that Harry told him he had “‘changed his mind’ about deeding the property to Zina” amounts to substantial evidence that Harry intended the immediate transfer of the property to Zina when he gave her the deed. We do not agree. Substantial evidence “ ‘ “cannot be deemed synonymous with ‘any’ evidence. It must . . . actually be ‘substantial’ proof of the essentials which the law requires in a particular case.” ’ ” (White v. State of California (1971) 21 Cal.App.3d 738, 759 (White).) As the court concluded in Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 652, “[t]he ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.” In this case, the whole record shows it was not. The trial court found it was “noteworthy” that Harry told attorney Brar “that he ‘changed his mind.’ ” But, as White stated, substantial evidence requires substantial proof of the essentials required by law in a particular case. (White, supra, 21 Cal.App.3d at p. 759.) The only issue in this case was Harry’s present intent to immediately divest himself of the property. Brar’s testimony that Harry told him he had “ ‘changed his mind’ about deeding the property to Zina” does not justify the trier of fact in ignoring testimony from both the grantor and the grantee relating to Harry’s intent at the time he gave the deed to Zina – namely, that Harry told Zina she would not become the owner until the deed was recorded. Indeed, Brar’s testimony that Harry told him he had “changed his mind” is perfectly consistent with the evidence that Harry intended Zina to have the property in the event of his death, not when he gave her the deed, and “changed his mind” about giving her the property after his death. It was simply not reasonable for the trial court to rule as it did “in light of the whole record.” (Roddenberry v. Roddenberry, supra, 44 Cal.App.4th at p. 652.)
Roddenberry observed that an appellate court “need not ‘blindly seize any evidence . . . in order to affirm the judgment.’ ” The court explained: “ ‘A formulation of the substantial evidence rule which stresses the importance of isolated evidence supporting the judgment, . . . risks misleading the court into abdicating its duty to appraise the whole record. . . . “Occasionally” [Chief Justice Traynor] observes, “an appellate court affirms the trier of fact on isolated evidence torn from the context of the whole record. Such a court leaps from an acceptable premise, that a trier of fact could reasonably [have believed] the isolated evidence, to the dubious conclusion that the trier of fact reasonably rejected everything that controverted the isolated evidence. . . . One of the very purposes of review is to uncover just such irrational findings and thus preclude the risk of affirming a finding that should be disaffirmed as a matter of law.” [Citation.]’ [Citation.]” (Roddenberry v. Roddenberry, supra, 44 Cal.App.4th at p. 652.)
We return to the principal point. We cannot conclude Harry intended to transfer the property to Zina when he gave her the deed unless the evidence allows the inference that, although Harry told Zina she would not own the property until the deed was recorded, he did not believe recordation was necessary to transfer title, and therefore must have intended an immediate transfer of the property. (See Kenney v. Parks (1902) 137 Cal. 527, 531 [mere delivery of possession of a deed is not sufficient, but must be accompanied with the intent that the deed become operative; “[h]ere both parties understood that the deed could have no effect until recorded; and there was therefore no intent that it should become immediately operative”].) But there is no evidence from which one can infer Harry understood recordation was not necessary for a transfer of title. While the trial court expressly found that Harry was not a credible witness, the trial court cited only his changing stories about the safety deposit box. There was also evidence, not mentioned by the trial court, that because Harry had owned a number of properties in the past, he had some experience with real estate. But the trial court made no express finding that Harry did not believe, as he told Zina, that recordation was necessary for a transfer of title. And, we can think of no reason why Harry would lead Zina to believe recordation was necessary, if he did not believe it and merely wanted to insure Evelyn would not find out about his gift of the property to Zina.
Indeed, the trial court inexplicably observed, in its final statement of decision, that “[t]here is no evidence before the court that Harry Brawer did not believe that the deed would be of no effect.” (This use of a triple negative, read literally, would mean there was no evidence Harry believed the deed would be effective, but it is apparent the trial court meant the opposite.) In fact, Harry testified he had always believed recordation was necessary to transfer title, and Zina’s testimony about what Harry told her about the need to record appears to corroborate Harry’s testimony on the point.
In sum, the trial court ignored testimony from both the grantor and the grantee relating to Harry’s intent at the time he gave the deed to Zina. When both witnesses to the events of January 27, 2003 – Zina and Harry – agree that Harry told Zina she would not become the owner until the deed was recorded, it is impossible to conclude that when Harry “handed [her] the deed, he did so with the intention that the title to the property, at that very moment, should pass finally and irrevocably from him to the [grantee] named.” (Follmer v. Rohrer, supra, 158 Cal. at p. 758.) Accordingly, the judgment quieting title in Zina must be reversed.
DISPOSITION
The judgment is reversed. Harry and Evelyn Brawer are to recover their costs on appeal.
We concur: RUBIN, J. FLIER, J.