Opinion
A158447
05-27-2021
YU CAO et al., Plaintiffs and Appellants, v. ANGELA FONG et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. HG16835733)
Plaintiffs Yu Cao and Jing Zou appeal from a summary judgment entered in favor of defendants Angela Fong and Bobby Fong in plaintiffs' fraudulent conveyance action. We find the trial court erred in granting defendants' motion and we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
I. Complaint for Fraudulent Conveyance Under Uniform Voidable Transactions Act and Conspiracy
Plaintiffs sued Lisa Fong and Does 1-10 for fraudulent conveyance of property, asserting that after the plaintiffs obtained judgments against Lisa in the Superior Courts of Santa Clara County and Alameda County, Lisa transferred property to the Doe defendants to avoid satisfying the judgments.
We refer to the defendants by their first names to avoid confusion, but we mean no disrespect.
The first amended complaint (FAC) alleges that in January and May 2016, plaintiffs obtained judgments against Lisa in two appeals she filed in superior courts from California Labor Commissioner orders. The total amount of the judgments, inclusive of posttrial attorney fees awards, was $47,253.50 as of July 1, 2016. In July 2015, while the underlying litigation in the superior court appeals was pending, Lisa allegedly sold a property located on Lafayette Street in Alameda. On April 27, 2016, Lisa allegedly transferred a property located on Wood Street in Alameda to her ex-husband, Kam Hung Fong, by way of an interspousal transfer deed.
Kam Hung Fong is named as the Doe 1 defendant.
The transfer of the Wood Street property allegedly occurred after both of the underlying trials were concluded, after judgment had been entered against Lisa in one of the trials, and only days before judgment was entered in the second case and an order was issued on plaintiffs' attorney fees motion. Lisa allegedly made the transfers to "insider Doe Defendants" without receiving adequate value after she incurred substantial liability, and she became insolvent as a result of the transfers. Regarding Lisa's divorce judgment, the FAC alleges it was entered in 1999 and that the transfers were not made in accordance with either a property settlement or a decree of dissolution of marriage but were made solely to defraud the plaintiffs. The FAC alleges one count of fraudulent transfer under the Uniform Voidable Transactions Act (UVTA) (Civ. Code, § 3439 et seq.) and one count of conspiracy. The conspiracy count alleges the Doe defendants knew of Lisa's liability and her plan to defraud her creditors, prior to the transfers.
II. Angela and Bobby's Motion for Summary Judgment
Angela and Bobby are the children of Lisa and Kam. They were added as Doe defendants in December 2017. Angela and Bobby (hereinafter referred to as defendants) filed a motion for summary judgment based on a single fact listed in defendants' separate statement of undisputed facts: "Defendant [Lisa] Fong was required to transfer the real property located at . . . Wood Street, Alameda, CA, to Kam Hung Fong, pursuant to the Dissolution Judgment entered on June 25, 1999." The proof of this fact was defendants' request for judicial notice of a 1999 dissolution judgment. Based on this fact, the defendants argued Lisa "was bound to execute an Interspousal Transfer Deed to accomplish [the] terms" of the divorce judgment and, therefore, it was not unlawful for her to transfer the property to Kam in 2016. The motion quotes Code of Civil Procedure section 437c, subdivision (o), stating that a cause of action has no merit if either "[o]ne or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded," or "[a] defendant establishes an affirmative defense to that cause of action." However, the motion does not identify the elements of either an applicable affirmative defense or the fraudulent transfer cause of action under the UVTA.
Kam did not join in the motion.
The separate statement erroneously states "Angela Fong," but when read in context it is clear the defendants meant to state "Lisa Fong," and the plaintiffs responded with the understanding that the defendants meant to refer to Lisa.
The defendants filed a request for judicial notice, asking the trial court to take judicial notice of a dissolution judgment dated June 25, 1999, which they "attached hereto as Exhibit A and incorporated herein by reference." (Italics omitted.) They assert the judgment is relevant to demonstrate plaintiffs' inability to maintain causes of action for fraudulent transfer and conspiracy.
The attached judgment is nine pages. The first page is page 1 of a Judicial Council of California family law judgment form, indicating the judgment is of a dissolution of marriage. The next five pages are pages numbered 1 to 5 of a marital settlement agreement which states, in part, that Kam "is awarded and assigned" the Wood Street property "as his share of the community property . . . ." Next are two additional Judicial Council form pages, numbered pages 3 and 4. A final page, numbered page 6, appears to be the signature page of the marital settlement agreement signed by Lisa and Kam on January 13, 1999. The first page of the judgment is stamped "FILED JUN 25 1999." Above the file stamp, the word "ENDORSED" is crossed out. Page 4 of the Judicial Council form pages contains Judge Roderic Duncan's stamp on the signature line and is date-stamped "JUN 25 1999." The document does not include Judge Duncan's signature. In addition to the pages of the marital settlement agreement being interspersed with the Judicial Council form pages, the judgment appears to be missing page 2 of the Judicial Council judgment form.
In response to the defendants' motion, plaintiffs objected to the request for judicial notice on grounds of hearsay, lack of authentication, and lack of foundation. Plaintiffs argued the copy of the dissolution judgment attached to defendants' request appeared to lack pages and other pages were not in sequential order. They also submitted evidence that the judgment had not been entered into the court record until April 2018, nineteen years after the date of the judgment. Plaintiffs' counsel submitted a declaration attaching, among other documents, a copy of the entire court file of the marital dissolution case between Lisa and Kam, which was certified by the court clerk on January 9, 2018. As of January 9, 2018, the court file did not contain a copy of the judgment. The plaintiffs' counsel's declaration also included a copy of an April 11, 2018 note to Judge Thomas J. Nixon, of the Superior Court of Alameda County, stating: "A customer came in with an endorsed copy of this judgment. When we checked the system, we realized that the clerk did not enter this in Domain and now the party is requesting for a Certified copy of it. [¶] I was given the directive to forward this information to you and get approval to have this Endorsed Filed copy entered into our system as an 'Original' endorsed copy. [¶] Please advise." Handwriting at the bottom of the note states, "Approved," and is initialed "TJN." The plaintiffs' counsel also attached a Domain case summary printout listing the documents filed in the dissolution case. The summary includes an entry stating: "06/25/1999 Judgment of Dissolution Approval from Judge Nixon (Orignal [sic] never entered into Domain) Filed." It also lists an entry on April 11, 2018, stating, "Notes: Endorsed Copy of Judgment sent to D-504 for approval of certification," and an entry on April 12, 2018, stating, "Notes: Approval from Judge Nixon re: Endorsed filed copy of Judgment."
In opposition to the motion, plaintiffs argued (1) the motion should be denied because it focused only on the Wood Street real property, but Lisa also transferred a second property, in Nevada; (2) the defendants failed to link any of the elements of actual or constructive fraudulent transfer with their asserted " 'undisputed fact[]' " or specify what affirmative defense their fact proved; (3) defendants failed to meet their burden of showing an absence of fraudulent intent, and there was a triable issue of fact regarding whether the transfer of the Wood Street property was made to satisfy the dissolution judgment; and (4) the transfers to Kam of the Wood Street property and of a Nevada property acquired by Lisa in 2006 were part of the fraudulent scheme.
The opposition refers to the second property as being located in two different states, Nebraska and Nevada. However, the plaintiffs' counsel's declaration attached deeds stating the property was in Nevada.
Plaintiffs filed a separate statement of disputed facts and additional, undisputed facts. They disputed defendants' single fact (that Lisa was required to transfer the Wood Street property to Kam pursuant to the 1999 dissolution judgment) on the basis of their evidentiary objections to defendants' request for judicial notice. Plaintiffs' additional, undisputed facts include that subsequent to 1999, Lisa and Kam obtained several loans secured by the Wood Street property as married joint tenants. Plaintiffs' supporting evidence was grant deeds and deeds of trust recorded at various times from 2001 to 2013. Each of these deeds lists Kam and Lisa as husband and wife. Plaintiffs offered the following additional facts: (1) that on April 27, 2016, Lisa transferred the Wood Street property to Kam by an interspousal grant deed; (2) that on October 17, 2016, Kam transferred part of his interest in the Wood Street property to defendants as joint tenants; (3) that Lisa purchased a 50-percent interest in a Nevada property on October 7, 2006; and (4) that on May 3, 2016, Lisa transferred her interest in the Nevada property to Kam as an interspousal transfer. Plaintiffs' counsel's declaration attached copies of the deeds and deeds of trust referenced in the statement of undisputed facts.
In their reply brief, the defendants argued that their only involvement in the case relates to the Wood Street property and, therefore, their motion disposed of all causes of action against them. They also argued that Lisa's and Kam's actions regarding the Wood Street property in the years after the dissolution judgment were not relevant because the judgment gave Lisa a right and obligation to transfer the property to Kam. Responding to plaintiffs' objections to their request for judicial notice, the defendants acknowledged that the copy of the judgment they provided is missing a page, which they suggest is "likely an oversight in scanning of a multi-sided document . . . ." Nonetheless, defendants argued the judgment bears indicia of reliability, including a file stamp, the signature of a judicial officer, and the notarized signatures of Lisa and Kam.
As noted, the dissolution judgment contains Judge Duncan's file stamp but not his signature.
On May 23, 2019, the trial court adopted its tentative ruling, which was not contested, granting defendants' request for judicial notice and their motion for summary judgment. The order states, in pertinent part: "The Motion of Defendants Angela Fong and Bobby Fong for Summary Judgment against Plaintiffs Yu Cao and Jing Zou, pursuant to CCP § 437c(p)(2), is GRANTED.
"Plaintiffs Yu Cao and Jing Zou obtained Judgments against Defendant Lisa Fong (aka Lisa Yan Huang) ('Lisa Fong') in the Superior Court of Santa Clara County in 2016. Plaintiffs . . . commenced this fraudulent conveyance action against Defendant Lisa Fong on October 19, 2016. . . . In April 2017, Plaintiffs substituted Defendant Kam Hung Fong, Lisa Fong's former spouse, in the place of DOE 1. Plaintiffs then added Defendants Angela Fong and Bobby Fong in the place of DOE 2 and DOE 3, respectively, on December 26, 2017.
"Defendants have met their initial burden of making a prima facie showing that no triable issues of material fact exist and that they are entitled to summary judgment on the First Amended Complaint. [Citation.] Plaintiffs added Defendants in the place of DOE 2 and DOE 3 because Kam Hung Fong conveyed his interest in the property located at . . . Wood Street, in Alameda, to them in October 2016. Defendant has [sic] presented sufficient admissible evidence to support their contention that the subject property was the sole property of Kam Hung Fong as of June 25, 1999. For that reason, Defendant Lisa Fong could not have fraudulently transferred it in 2016. The fact that Lisa Fong and Kam Hung Fong defrauded mortgage lenders by representing their joint ownership of . . . Wood Street on loan applications does not render the Judgment of June 25, 1999 void.
"Plaintiffs' contention that the Court cannot grant Defendants' Motion for Summary Judgment because they made additional allegations of fraudulent conveyance and conspiracy to commit fraudulent conveyance is without merit. Plaintiffs clearly alleged in the First Amended Complaint that the claims against Defendants Angela Fong and Bobby Fong were based on the . . . Wood Street property. The Court cannot consider Plaintiff's [sic] argument that Lisa Fong may have also fraudulently conveyed certain property to Defendants in Nevada because the scope of the motion is defined by the First Amended Complaint on file. [Citations.]
"Plaintiffs' and Defendants' Requests for Judicial Notice pursuant to Evidence Code §§ 452 and 453 are GRANTED." On May 24, 2019, the court entered judgment in favor of defendants.
The plaintiffs had requested judicial notice of a Nevada statute regarding taxes on transfers of real property.
DISCUSSION
A "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.) A defendant satisfies this burden by showing " 'one or more elements of' the 'cause of action' . . . 'cannot be established,' or that 'there is a complete defense' " to that cause of action. (Ibid.) " 'Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.' " (Id. at p. 849.) "[I]f the showing by the defendant does not support judgment in his favor, the burden does not shift to the plaintiff and the motion must be denied without regard to the plaintiff's showing." (Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1534.) We review the grant of summary judgment de novo, and in doing so, we view the evidence in the light most favorable to the losing party. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) Accordingly, we will "liberally construe plaintiffs' evidentiary submissions and strictly scrutinize defendants' own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiffs' favor." (Ibid.)
On appeal, plaintiffs argue the trial court erred when it took judicial notice of the dissolution judgment, which they contend was not authenticated. They also argue that the trial court erred in finding that the Wood Street property was solely Kam's property as of 1999, that Lisa and Kam's mortgage frauds were irrelevant, and that the trial court should have considered the Nevada transaction as part of a fraudulent scheme. They assert they were prejudiced by defendants' failure to specify a specific legal ground for summary judgment and the trial court's basing its ruling on a new undisputed fact not asserted by defendants. Plaintiffs also argue that the defendants failed to establish that they were " 'good faith' " transferees under the UVTA.
We agree with plaintiffs that it was error to take judicial notice of an incomplete dissolution judgment, and we also find the trial court erred by making a factual finding that was not asserted in defendants' motion and as to which there was disputed evidence. We reverse on these grounds and do not reach the other issues plaintiffs raise.
I. Judicial Notice
Although the granting of summary judgment is subject to independent review, courts generally review evidentiary rulings on summary judgment for abuse of discretion. (Mackey v. Trustees of California State University (2019) 31 Cal.App.5th 640, 657.) However, there is some question as to whether a de novo standard should apply to evidentiary rulings made solely on summary judgment papers. (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535 [recognizing question but declining to address it].) But under either standard, "evidentiary questions at summary judgment ' "are subject to the overarching principle that the proponent's submissions are scrutinized strictly, while the opponent's are viewed liberally." ' " (Mackey, at p. 657.) As discussed post, we find that even under the abuse of discretion standard, the trial court erred in taking judicial notice of the admittedly incomplete dissolution judgment over plaintiffs' evidentiary objections.
" ' "Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter." ' " (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1374.) " A matter ordinarily is subject to judicial notice only if the matter is reasonably beyond dispute.' " (Ibid.)
" 'Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.' [Citation.] While courts take judicial notice of public records, they do not take notice of the truth of the matters stated therein. [Citation.] 'When judicial notice is taken of a document, . . . the truthfulness and proper interpretation of the document are disputable.' [Citation.]" (Herrera v. Deutsche Bank National Trust Co., supra, 196 Cal.App.4th at p. 1375.)
A court is authorized to take judicial notice of records of any court in California. (Evid. Code, §§ 450, 452, subd. (d).) The burden is on the party requesting judicial notice to supply the court with sufficient, reliable, and trustworthy sources of information to enable the court to take judicial notice of a matter. (See People v. Maxwell (1978) 78 Cal.App.3d 124, 130-131 [finding parties failed to provide trial court with sufficient information to enable it to take judicial notice of court records]; see also People v. Preslie (1977) 70 Cal.App.3d 486, 494 [in order to take judicial notice of a trial court record, appellate court "must be assured that the original is actually on file in the superior court and that the copy of the . . . record is in fact a true and correct copy. Without such assurance the court cannot act with confidence" (fn. omitted)].)
Here, the defendants provided the trial court with an incomplete copy of the 1999 dissolution judgment. The plaintiffs objected on multiple grounds, including lack of authentication, and specifically noted that the judgment was missing a page and that other pages appeared to be out of order. In addition, the plaintiffs presented evidence that the dissolution judgment was not entered into the court file until 2018. The plaintiffs' evidence included a certified copy dated January 9, 2018, of the entire marital dissolution case, which did not include the judgment; the file note stating that a "customer" presented a filed, endorsed copy of the judgment and asked that it be entered as the " '[o]riginal' "; and a printout listing the records filed in the case and noting the "Orignal [sic] [judgment was] never entered into Domain" and that on April 12, 2018, Judge Nixon approved the entry of the "[e]ndorsed filed copy of Judgment."
In defendants' reply brief in support of their motion for summary judgment, they responded to the plaintiffs' evidentiary objections, by acknowledging that the copy of the judgment they provided was missing a page. They suggested that this was "likely an oversight in scanning of a multi-sided document . . . ." The defendants also asserted the judgment was independently available for the court's review.
The trial judge granted plaintiffs' request for judicial notice without addressing the fact that the copy of the judgment provided by the defendants was incomplete and did not appear to be a correct copy of the original judgment. There is no evidence the defendants complied with California Rules of Court, rule 3.1306(c), which requires that: "A party requesting judicial notice of material under Evidence Code sections 452 or 453 must provide the court and each party with a copy of the material. If the material is part of a file in the court in which the matter is being heard, the party must: [¶] (1) Specify in writing the part of the court file sought to be judicially noticed; and [¶] (2) Either make arrangements with the clerk to have the file in the courtroom at the time of the hearing or confirm with the clerk that the file is electronically accessible to the court." Here, the record shows that the defendants provided only an incomplete copy of the judgment with their request for judicial notice. There is no indication that they requested the judgment be made available to the trial court or that they confirmed with the clerk that the file was electronically accessible to the court.
In addition to the fact that the judgment was admittedly incomplete on its face, the plaintiffs presented evidence that as of January 2018 the court record did not contain the judgment and that it was not until April 2018 that the copy of the 1999 judgment was entered into the court file. On this record, it remains uncertain whether the copy of the judgment that was entered into the court record in 2018 is a complete copy or whether it too is missing a page.
Defendants complain on appeal that the plaintiffs presented no testimony from witnesses about the history of the judgment's entry into the court's electronic system and did not request judicial notice of the case docket. Therefore, according to defendants, the history of the judgment's entry into the court file was not before the trial court. However, the defendants did not file evidentiary objections to the evidence submitted by the plaintiffs in support of their opposition to the motion for summary judgment. Accordingly, we consider the plaintiffs' evidence. (See Pipitone v. Williams (2016) 244 Cal.App.4th 1437, 1451-1452 [appellate courts reviewing summary judgment consider "all the evidence set forth in the moving and opposition papers except that to which objections have been made and properly sustained"].) Moreover, the plaintiffs' counsel provided a declaration attaching the documentation they referenced in their opposition, and the declaration included a certified copy of the contents of the court file in the marital dissolution proceeding as of January 2018.
The defendants argue that the copy of the judgment they provided to the trial court "had sufficient indicia of reliability to support a finding that it was a true copy of the document it purported to be . . . ." But, in fact, the copy the defendants provided to the court was incomplete and lacking authentication. Under these circumstances, we find it was an abuse of discretion for the trial court to grant the defendants' request for judicial notice of the incomplete dissolution judgment. (See Mackey v. Trustees of California State University, supra, 31 Cal.App.5th at p. 657 [reviewing court must liberally construe opposing party's evidence and strictly scrutinize moving party's evidence].)
Because we find error in taking judicial notice of an incomplete judgment we do not need to reach the other evidentiary issues the plaintiffs raise regarding the incomplete judgment.
Because the incomplete copy of the dissolution judgment was the sole evidence submitted by defendants in support of their motion, without it they do not meet their burden of establishing facts to negate the plaintiffs' claims and justify a judgment in their favor, and the motion should have been denied. II. Material issues of fact regarding the ownership of the Wood Street property preclude summary judgment.
Even if we were to assume the incomplete dissolution judgment was properly noticed, we would find that plaintiffs met their burden of showing a triable issue of fact regarding ownership of the Wood Street property based on their submission of the multiple deeds and deeds of trust for the property in Lisa's name postdating the 1999 judgment.
The trial court erroneously found, relying on the dissolution judgment, that the Wood Street property was the sole property of Kam as of June 25, 1999. This factual determination was neither advanced nor proved by defendants. (Code Civ. Proc., § 437c, subd. (b)(1) ["The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed"].) In an apparent acknowledgment that the 1999 dissolution judgment by itself did not transfer the property to Kam, the defendants never asserted that he was the sole owner as of 1999. It was error for the trial court to make this determination on summary judgment when it was not presented by the parties. (See San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316 ["Where a remedy as drastic as summary judgment is involved, due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail"].)
The defendants' motion argued Lisa was bound or required by the 1999 dissolution judgment to transfer the property to Kam, and although their legal arguments were not fully developed (their motion fails to address either the elements of the UVTA cause of action or any applicable affirmative defense), they argued that Lisa's transfer of the property to Kam could not have been fraudulent.
The trial court's decision effectively finds that the 1999 dissolution judgment amounted to a transfer of the Wood Street property to Kam as the sole owner. Neither the defendants nor the trial court provide authority for this conclusion. The plaintiffs presented additional, undisputed facts that for the 17 years following 1999, Lisa and Kam held the Wood Street property as joint tenants and obtained a series of loans secured by the property as married joint tenants. Plaintiffs' supporting evidence included a grant deed recorded November 20, 2001, correcting Lisa's name from Run Yan Huang to Lisa Yan Fong and stating the property was conveyed to Lisa and Kam as husband and wife joint tenants; a deed of trust recorded on the same date stating Lisa and Kam are named as the borrower, "husband and wife" (all caps omitted); a deed of trust recorded on March 27, 2002, stating Lisa and Kam are husband and wife joint tenants; a deed of trust recorded on May 19, 2005, stating Lisa and Kam are borrowers married to each other; and a deed of trust recorded on April 1, 2013, stating Lisa and Kam are borrowers and husband and wife joint tenants. The deed and each deed of trust contain Lisa's and Kam's notarized signatures. Plaintiffs' other additional facts were that on April 27, 2016, Lisa transferred the Wood Street property to Kam by an interspousal transfer deed and on October 17, 2016, Kam transferred part of his interest in the Wood Street property to defendants as joint tenants. In sum, the plaintiffs' evidence indicated that Lisa maintained ownership of the property until April 27, 2016, when she conveyed title to Kam.
As stated in Evidence Code section 662: "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." Evidence Code section 662 "codifies the common law form of title presumption," and its purpose " 'is to promote the public policy in favor of "the stability of titles to property." ' " (In re Brace (2020) 9 Cal.5th 903, 914.)
The defendants argue that the plaintiffs waived the right to argue that the title presumption applies because they failed to raise this issue below. But, as explained, the defendants did not assert in their motion or statement of undisputed facts that Kam was the sole owner of the property as of 1999. Therefore, the plaintiffs were not on notice that it was necessary to respond to a claim that had not been made. Although the plaintiffs could have opposed the tentative ruling at a hearing, the fact that they did not do so does not amount to a waiver. (See Mundy v. Lenc (2012) 203 Cal.App.4th 1401, 1406 ["Submission on a tentative ruling is neutral; it conveys neither agreement nor disagreement with the analysis"].)
We find that the plaintiffs' evidence, which we must view in the light most favorable to them, was sufficient to raise a triable issue of fact as to whether Kam was the sole owner of the Wood Street property prior to the interspousal transfer in 2016. The plaintiffs' evidence indicated that for 17 years after the 1999 dissolution judgment, Lisa and Kam maintained joint ownership of the Wood Street property, raising a factual question as to whether the property could be considered Lisa's asset within the meaning of the UVTA. We find that the evidence presented by plaintiffs and the form of title presumption of Evidence Code section 662 preclude the granting of summary judgment based on a finding that Kam solely owned the property as of 1999.
DISPOSITION
The judgment is reversed. Appellants are awarded their costs on appeal.
/s/_________
Jackson, J. WE CONCUR: /s/_________
Petrou, Acting P. J. /s/_________
Wiseman, J.
Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.