Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court for Los Angeles County No. VC043658, Raul A. Sahagun and Dewey L. Falcone, Judges.
Velasco Law Group and Richard J. Radcliffe for Defendants and Appellants.
Law Offices of Speros P. Maniates and Speros P. Maniates for Plaintiff and Respondent.
WILLHITE, J.
Plaintiff Nerida Diaz brought the instant lawsuit against her son and daughter-in-law, Orlando Romero, Jr. and Amy Lou Romero, to cancel a deed that transferred title to a house, which she owned in joint tenancy with Orlando, to Orlando and Amy. Following a bench trial, the court found in favor of Diaz. The Romeros appeal, contending that the trial court erred by overruling their demurrer on statute of limitations grounds, that there was insufficient evidence to overcome their statute of limitations defense, that the court’s statement of decision was inadequate, and that the trial court employed an erroneous measure of damages. We affirm the judgment.
For ease of reference, we will use defendants’ first names when referring to them individually, and will refer to them collectively as the Romeros.
FACTUAL BACKGROUND
Diaz came to the United States from Cuba in 1946, when she was 18 years old. She had a sixth grade education when she arrived, and learned English on the streets of New York. Although she can speak and read some English, she has had no formal schooling since she left Cuba.
In mid-1984, Diaz used money she won in the New Jersey lottery to buy a home in Lakewood. She made a down payment of $22,500 and financed the remainder of the $112,500 purchase price. She wanted to provide her only child, Orlando, with a place to live, and intended that Orlando would inherit the house when she died. Diaz and Orlando lived in the house together for several months, until Diaz moved to Florida in late 1984, where she bought a small duplex.
In January 1985, Orlando married Amy, and Amy moved into the house. In September 1985, Diaz executed a grant deed to add Orlando to the title as a joint tenant. Orlando made all the mortgage payments and paid for all other costs associated with the house after Diaz moved to Florida.
In June 2000, Diaz executed a grant deed that transferred title to the house from Diaz and Orlando to Orlando and Amy. The parties dispute how this came to be. According to Orlando, Diaz called him and said she wanted to take her name off the title to the house because she did not want any assets in her name so she could get government assistance. Diaz denies making any such call. According to Diaz, Amy called her on or about June 9, 2000, and told her that Amy and Orlando wanted Diaz to move back to Los Angeles to live with them and take care of their child, but they needed Diaz to sign some documents to allow them to remodel the house to add a bedroom for her. Documents were sent to Diaz a week later (it is unclear whether Amy or an escrow company sent them), and Amy told Diaz to take them to the bank to sign them and send them back. One of those documents was the grant deed at issue in this case. The deed was signed by Orlando in Los Angeles and notarized on June 17, 2000, and signed by Diaz in Florida and notarized on June 20, 2000. It was recorded on June 23, 2000. Diaz believed the document “was like a -- a power of attorney to make me a room.”
At the time the deed was signed, the house was valued at approximately $220,000, and the balance on the mortgage was approximately $63,000. The Romeros obtained a new mortgage on the house, in the amount of $96,000. A portion of the proceeds from the loan was used to pay the balance of Diaz’s mortgage, with the remainder used to pay off the Romeros’ automobile loan and credit card debt. Diaz did not receive any proceeds from the transfer of title. Her monthly income at that time was approximately $700, from Social Security and a small pension.
The Romeros applied for this loan in May 2000.
Within two weeks after the grant deed was signed, Diaz sold her property in Florida. Orlando went to Florida to drive Diaz back to Los Angeles, where she lived with the Romeros for several months. She later moved out and into an apartment, however, because the house was too cramped and no work had yet begun to build an additional bedroom. She lived in the apartment for a couple of years, until the rent was raised and she moved back into the house with the Romeros in late 2003 or early 2004. By that time, the house had been remodeled to, among other things, add two more bedrooms.
The Romeros paid for the remodel by refinancing the house in March 2001. The new mortgage was in the amount of $170,000.
From the time Diaz moved back into the house until October 2004, Diaz wrote monthly checks to Amy in the amount of $300. Although the Romeros testified that these payments were rent payments, none of the checks indicate that it is for rent, and Diaz testified that they were just for household expenses. In October 2004, Diaz and Amy had a very nasty argument. According to Orlando and Amy, Diaz said to Amy, “I should have never signed the property over to you,” and threatened to kill Amy. Diaz denied saying that she should not have signed the property over to Amy, but admitted threatening to kill her. According to Diaz, Amy told Orlando to get her (Diaz) out of the house because she could not deal with her anymore. Amy and Orlando denied asking or telling Diaz to leave. Diaz moved out of the house shortly thereafter.
Orlando testified that Diaz started to choke Amy, but Diaz denied choking or touching her.
After Diaz moved out of the house in October 2004, she went to a lawyer. The lawyer told her that the document she signed in June 2000 took away her rights to the house. According to Diaz, she did not discover that the Romeros were claiming sole ownership of the house until she spoke to the lawyer. Up to that point, she believed she was half owner of the house.
PROCEDURAL BACKGROUND
In January 2005, Diaz filed the instant lawsuit against the Romeros, alleging causes of action for cancellation of deed, quiet title, slander of title, conspiracy, deed procured by undue influence, deed procured by mistake of fact, and constructive trust. The complaint alleged that (1) Orlando told Diaz that the documents she was asked to sign in June 2000 were simply documents needed to remodel the house; (2) Diaz trusted her son, who had a fiduciary duty to properly advise her and who abused her trust; and (3) Diaz did not learn of the transfer of her interest in the house until 2004, when she was thrown out of what she believed to be her own house.
The Romeros filed a demurrer to the complaint, arguing that each of Diaz’s claims was barred by the statutes of limitations because Diaz knew or should have known that the Romeros claimed sole ownership of the house in June 2000, when Diaz signed the grant deed. The court (Judge Raul A. Sahagun, presiding) overruled the demurrer, finding that Diaz alleged sufficient facts to invoke the discovery rule. The case proceeded to trial before the court (Judge Dewey L. Falcone, presiding).
The trial court found in favor of Diaz. It noted that the case turned on the credibility of the witnesses, and found Diaz to be more credible. The court also found that the statute of limitations did not bar her lawsuit because she claimed she was not aware of the effect of the deed until she was told to vacate the property in October 2004. The court ordered judgment in favor of Diaz for cancellation of the June 2000 grant deed, based upon undue influence and material mistake of fact, with Diaz’s interest in the property subject to various credits. The court also ordered that Diaz was entitled to reasonable monthly rent from the Romeros, subject to credits for their payments for mortgage, taxes, and necessary repairs. The Romeros timely filed a notice of appeal from the judgment.
DISCUSSION
A. Overruling Demurrer
As noted above, the Romeros filed a demurrer to the complaint on the ground that the statutes of limitations barred all of her claims. The trial court overruled the demurrer, and the case proceeded to trial. On appeal, the Romeros argue that the trial court erred by overruling the demurrer because the complaint alleges that Diaz signed the grant deed in June 2000 (more than four years before Diaz filed her complaint), but it did not plead sufficient facts to establish delayed discovery of the facts giving rise to her causes of action.
Even if the Romeros were correct that the complaint did not sufficiently allege delayed discovery by Diaz, any error in the trial court’s failure to sustain the demurrer was harmless. As discussed below, Diaz presented evidence at trial that Amy told her the documents she was asked to sign were needed to remodel the house to create more room for her, that neither Amy nor Orlando told her that the document they asked her to sign would transfer title to the house, that she believed the document was like a power of attorney for the remodel, and that she did not discover that the grant deed transferred title to the house until she met with a lawyer after October 2004. There is no suggestion that the Romeros were surprised by Diaz’s evidence at trial. Therefore, the Romeros did not suffer prejudice by the trial court’s overruling their demurrer. (Johnson v. Holmes Tuttle Lincoln-Merc., Inc. (1958) 160 Cal.App.2d 290, 300-301 [no prejudice shown where, after demurrer was overruled, plaintiff presented sufficient evidence at trial and defendant did not claim surprise]; Hirsch v. James S. Remick Co. (1918) 38 Cal.App. 764, 767 [although demurrer should have been sustained because plaintiff failed to allege necessary fact, error harmless where evidence of omitted fact was presented at trial without objection].)
B. Sufficiency of the Evidence of Delayed Discovery
The Romeros contend there was insufficient evidence presented at trial to overcome their statute of limitations defense, and therefore the trial court’s ruling in favor of Diaz is not supported by substantial evidence. They point out that the undisputed evidence showed that Diaz signed the grant deed on June 20, 2000, and that she filed her complaint on January 12, 2005. Therefore, they argue, Diaz knew or should have known that they claimed ownership of the house more than four years before she filed the complaint. They note that there was no evidence that Diaz was prevented from speaking to anyone about the deed or its effect, and they assert that “[i]t taxes credulity (and is highly unreasonable) to believe that Diaz could have thought that the document emblazoned ‘Grant Deed’ was actually a ‘power of attorney’ for ‘remodeling’” because the evidence showed that Diaz could read and speak English. Finally, they point to other evidence they believe shows that Diaz was not credible and that the Romeros’ version of the facts was more believable.
The Romeros misapprehend the substantial evidence standard of review. “‘“When a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact.”’ [Citations.] ‘“[W]e have no power to judge... the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom.’” [Citations.] Our role is limited to determining whether the evidence before the trier of fact supports its findings. [Citation.]” (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 766, italics in original.)
In the present case, there was evidence -- Diaz’s testimony -- that Diaz, who had a sixth-grade education and had limited command of English, was told by her daughter-in-law that the document she was to sign was simply something that was needed to remodel her house. She also testified that Amy told her the purpose of the remodel was to add a bedroom for Diaz, so Diaz could move back to Los Angeles to help care for her grandchild. She said that she believed Amy, and believed that the grant deed was like a power of attorney for the remodel. There also was evidence that Diaz sold her home in Florida and moved back into the house in Los Angeles shortly after signing the grant deed. Although Diaz moved out of the house some months later, she testified that she did so because the remodel had not yet started and the house was too cramped. She did, however, move back into the house sometime after the remodel was completed, and lived there until October 2004, when she said she was told to vacate the premises after her argument with Amy.
The trial court found Diaz to be credible in light of all the evidence, and found that Diaz’s reliance upon Amy’s representations was reasonable under the circumstances. Therefore, the court ruled that the statutes of limitations did not bar Diaz’s claims because she filed her complaint within three months after she discovered that the Romeros claimed sole ownership of the house. The substantial evidence set forth above supports the trial court’s ruling.
C. Adequacy of the Statement of Decision
The Romeros’ next contention relates to the trial court’s statement of decision. In its initial statement of decision, the court found there was a confidential relationship between Diaz and Orlando, and that they owed each other a fiduciary duty of fair dealing, but that Diaz was given the grant deed to sign without any explanation of the legal effect of the document, and without any offer of payment for her share of the equity in the house. The court also found that the statute of limitations did not bar the lawsuit because Diaz claimed she was not aware of the effect of the deed until she was told to vacate the property in October 2004. Finally, the court noted that the case turned on the credibility of the witnesses, and found Diaz to be more credible. The court ordered judgment in favor of Diaz for cancellation of the June 2000 grant deed, based upon undue influence and material mistake of fact, with Diaz’s interest in the property subject to various credits, such as the payment of the balance of Diaz’s mortgage and the costs of improvements the Romeros made. The court also ordered that Diaz was entitled to reasonable monthly rent from the Romeros, in the amount of $1,750 for 2005 and $1,900 for 2006, subject to credits for their payments for mortgage, taxes, and necessary repairs.
The Romeros objected to the court’s statement of decision on five grounds: (1) it failed to specify the causes of action upon which the court found in favor of Diaz; (2) it failed to specify whether Diaz is to receive title to the property, the value of the property, or both; (3) it did not make a finding as to what is the relevant date for the purpose of determining the value of the property; (4) it failed to make findings regarding whether Diaz’s failure to discover the effect of the deed before October 2004 was reasonable and whether Diaz exercised reasonable diligence; and (5) it failed to make any findings regarding the Romeros’ affirmative defenses of failure to mitigate, waiver, and estoppel.
In response to the Romeros’ objections, the trial court modified its statement of decision to state the following: (1) that Diaz prevailed on her causes of action for cancellation of deed (first cause of action), quiet title (second cause of action), deed procured by undue influence (fifth cause of action), and deed procured by mistake of fact (sixth cause of action), and that the Romeros are to take nothing by their answer or affirmative defenses; (2) that Diaz is to receive title to the property as evidenced by the 1985 deed, i.e., Diaz and Orlando hold title as joint tenants, and the June 2000 grant deed is void; (3) the monetary value given to the property as set forth in the initial statement of decision is not relevant to the issues upon which Diaz prevailed; (4) the evidence set forth in the initial statement of decision and the court’s finding of a confidential relationship between Diaz and Orlando establish that Diaz’s reliance on the representations made in the June 2000 telephone call was reasonable under the circumstances, and the conduct in conformity with the representations that were made to her led the court to find that Diaz was under no duty to investigate; and (5) the court has found, based upon the evidence presented, that the affirmative defenses are not a bar to Diaz’s causes of action.
On appeal, the Romeros contend that the judgment must be reversed because the trial court’s statement of decision did not properly address their affirmative defenses. They argue that, with regard to their statute of limitations defense, the court did not make specific findings on (a) whether the action would be time-barred in the absence of the discovery rule; (b) whether Diaz met her burden to invoke the discovery rule; (c) whether Diaz had notice sufficient to put a reasonable person on inquiry; (d) whether she refused to read the document she signed; (e) whether any such refusal was reasonable; (f) whether she inquired about the nature of the document; (g) if she failed to inquire, whether that failure was reasonable; (h) whether Diaz was unable to discover the nature of the document sooner in the exercise of reasonable diligence; and (i) whether Diaz exercised reasonable diligence. They also argue that the court did not discuss their other affirmative defenses. Their argument for reversal fails.
“In rendering a statement of decision under Code of Civil Procedure section 632, a trial court is required only to state ultimate rather than evidentiary facts; only when it fails to make findings on a material issue which would fairly disclose the trial court’s determination would reversible error result. [Citations.] Even then, if the judgment is otherwise supported, the omission to make such findings is harmless error unless the evidence is sufficient to sustain a finding in the complaining party’s favor which would have the effect of countervailing or destroying other findings.... The trial court need not discuss each question listed in a party’s request; all that is required is an explanation of the factual and legal basis for the court’s decision regarding the principal controverted issues at trial as are listed in the request.” (Helman v. La Cumbre Golf & Country Club (1992) 6 Cal.App.4th 1224, 1230.)
In the instant case, the trial court’s statement of decision, as modified, made sufficient findings on all material issues necessary to fairly disclose the court’s determination. With regard to the statute of limitations defense, the court found that Diaz did not know the nature of the grant deed when she signed it in June 2000, and did not discover the nature of the document until sometime after October 2004. In support of that finding, the court also found (1) there was a confidential relationship between Diaz and Orlando, and it was reasonable for Diaz to rely on the representations of Orlando’s wife, Amy, who told her the document was needed to remodel the house to add another bedroom so Diaz could move back into the house; and (2) Diaz did not have a duty to investigate in light of the conduct in conformity with the representations that Amy made to her. With regard to the Romeros’ other affirmative defenses, the trial court found that none bars Diaz’s causes of action. Although the court made no other findings directly related to those defenses, that omission no doubt was due to the Romeros’ failure to address them at trial. Neither the Romeros’ trial brief nor their written closing argument made any mention of any affirmative defense other than statutes of limitations. In any event, the Romeros have not shown on appeal that there was sufficient evidence presented to sustain a finding in their favor on any of their affirmative defenses. Hence, even if the trial court’s failure to make additional findings was error, the error was harmless. (Helman v. La Cumbre Golf & Country Club, supra, 6 Cal.App.4th at p. 1230.)
D. Award of Full Rental Value
The Romeros argue that the trial court erred by awarding the full monthly rental value to Diaz because, under the terms of the judgment, Orlando is a one-half owner of the property under the 1985 deed. Therefore, they contend that Diaz is entitled to only one-half of the rental value. We cannot review this issue, however, because the Romeros failed to present an adequate record.
An appellant “must affirmatively show error by an adequate record. [Citations.] Error is never presumed. It is incumbent on the [appellant] to make it affirmatively appear that error was committed by the trial court. [Citations.]... ‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent....’ (Orig. italics.) [Citation.]” (Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.) In the absence of a proper record on appeal, the judgment is presumed correct and must be affirmed. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.)
In this case, the record on appeal consists of an appellant’s appendix, the trial exhibits, and a single day of reporter’s transcript. The appendix contains the complaint; demurrer papers and opposition; the order overruling the demurrer; the answer; the parties’ trial briefs and written closing statements; the statement of decision, objections thereto, and modification of the statement of decision; the proposed judgment, objections thereto, the rulings on those objections, and the amended judgment; and the notice of appeal, designation of the record, and docket/case summary. The reporter’s transcript is for the one day of trial. There was no evidence presented during that day (or submitted with any of the documents in the appendix) regarding the reasonable rental value of the property. There is, however, a reference in the reporter’s transcript to stipulations the parties entered into during a previous appearance before the court. Given that the Romeros do not contend on appeal that there is insufficient evidence of the rental value of the house, we presume that some of the stipulations related to the reasonable rental value of the property. But because those stipulations are not part of the record on appeal, we cannot determine whether the amount of rent the court ordered the Romeros to pay constituted half or the full rental value of the house. In the absence of a proper record, we must presume the trial court correctly determined the amount of rent to be paid, and affirm the judgment. (Maria P. v. Riles, supra, 43 Cal.3d at pp. 1295-1296.)
DISPOSITION
The judgment is affirmed. Diaz shall recover her costs on appeal.
We concur: EPSTEIN, P. J., MANELLA, J.