Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MP003957, Phillip J. Argento, Judge.
Thomas J. Beaudet and Timothy L. Orr for Appellant.
Charlton Weeks and Kurt Stiefler for Respondent.
Retired judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Appellant Linda Diane Padilla appeals from a judgment denying her spousal property petition filed in proceedings regarding the estate of Pete Golsh Padilla. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 1983, decedent Pete Golsh Padilla, a 53-year-old Native American, asked appellant, a 27-year-old Native American, to be his “woman,” to be as his wife. She agreed and accepted him as her husband. In a Native American way, they promised each other to walk life together as one. At the time, decedent was married to Mary Padilla, but Mary and decedent had been separated since 1969. During their marriage, decedent and Mary had four children, one of whom was respondent Karen Garcia. Appellant had three minor children. Decedent and appellant lived together for 21 years, until decedent’s sudden, unanticipated death in April 2004. Decedent died intestate.
Decedent and appellant had a son, Joshua, who was born in November 1985. Complications at the time of Joshua’s birth led to his disability and his being identified as multiple learning disabled. At the time the petition herein was filed, Joshua was an adult receiving Supplemental Security Income benefits. He had lived with appellant all of his life. Because Joshua needed fulltime care from birth, appellant stayed home to care for him and her minor children in accordance with decedent’s expressed wishes.
In 1986, appellant and decedent decided to buy a house, and after they looked at property, decedent purchased a four-bedroom house at 10306 East Avenue R-4 in Littlerock (the home). By deed recorded April 23, 1986, decedent acquired title as “Pete Golsh Padilla, a married man, as his separate property.” Decedent was still married to Mary Padilla at the time. Decedent had Mary Padilla execute an interspousal quitclaim deed to “Pete Golsh Padilla, a married man, as his separate property,” which was recorded the same day.
The home is more specifically described as real property in the County of Los Angeles, State of California, identified as Lot 176 of Tract No. 9488, in the County of Los Angeles, State of California, as per map recorded in Book 151, Pages 30 to 34, inclusive of Maps, in the office of the County Recorder of said County.
Decedent, appellant, Joshua and appellant’s minor children moved into the home. As they grew up, appellant’s children left the home. Decedent, appellant and Joshua were residing there when decedent died. All payments and improvements on the home were made from earnings while decedent and appellant were living together plus $13,000 contributed by appellant from an inheritance she received. Appellant paid for all payments and improvements subsequent to decedent’s death.
In 1997, decedent obtained a judgment of dissolution of his marriage to Mary Padilla. Decedent had not sought dissolution earlier because Mary had serious medical problems and he wanted to continue to provide medical coverage benefits to her through his employment. Under the judgment, Mary Padilla was awarded a residence in La Puente where they had lived together prior to their separation.
On August 18, 1998, decedent and appellant were married. Not long after the marriage, decedent told appellant of his intent to put appellant on the title to the home. He opened an escrow to refinance the home and have the title changed in the process.
According to appellant’s testimony, shortly before the refinancing escrow was to close, however, the lender’s loan officer indicated the loan would only be made if the title of record remained as “Pete Golsh Padilla, a married man, as his separate property” and appellant signed an interspousal transfer deed to “Pete Golsh Padilla, a married man, as his sole and separate property.” Appellant understood from the loan officer that if she did not sign the interspousal transfer deed and decedent did not leave the record title as his separate property, then she and decedent would be required to pay $5,000 in loan, escrow and title costs. They did not have the resources to make such a payment. Appellant was assured by the loan officer that, since California was a community property state, the home would be community property and signing the deed would not change that fact. Relying upon the loan officer’s representation concerning the community property nature of the home, decedent and appellant agreed that appellant should sign the interspousal transfer deed, and she did. Subsequently, decedent and appellant did nothing further to change the title.
After decedent died, appellant and respondent filed separate petitions for letters of administration for decedent’s estate. Appellant also filed a spousal property petition to have the home determined community property and the decedent’s one-half interest as having passed to her as the surviving spouse. After a court trial on the spousal property petition, the probate court issued a tentative decision that the home was the separate property of the Estate of Pete Padilla, and judgment was to be entered on the spousal property petition in favor of respondent and against appellant. By its terms, the tentative decision became the statement of decision and the probate court incorporated it by reference in the judgment entered on November 28, 2006.
DISCUSSION
Appellant claims that, although record title to the home has been in decedent’s name, as his separate property, at all times since its purchase, decedent and appellant had an oral agreement that the home was to be jointly owned by both of them and when they married, the form of joint ownership would be as community property. The issue before the probate court was whether, although record title was in decedent as his separate property, appellant and decedent entered into an oral agreement during marriage to transmute the home to community property and, therefore, the home should be confirmed as community property for the purposes of settlement of decedent’s estate without administration. (See Prob. Code, §§ 13500, 13650.) In its statement of decision, the probate court stated that appellant “did not prove by clear and convincing evidence that the subject property was transmuted into community property. The presumptions attendant to the public records having not been overcome by the evidence presented, the court finds that the subject property is [decedent’s] separate property.” Appellant’s primary contention is that the probate court erred in requiring her to meet a burden of proof by clear and convincing evidence. For reasons explained more fully below, we disagree with the contention.
Although respondent appeared to imply otherwise in her brief on appeal, the parties did not waive a statement of decision. The tentative decision became the statement of decision by its terms, in that counsel orally requested a statement of decision at the close of the trial proceedings and no party made any additional proposal or objections to the tentative decision. (Cal. Rules of Court, rule 3.1590(c).)
Our review is limited to the findings and decision addressed in the statement of decision, in that appellant did not raise any objections to the statement of decision in the probate court proceedings, and we view all findings implied in the statement of decision as favoring respondent. “Under [Code of Civil Procedure] section 634, a party must raise any objection to the statement in order to avoid an implied finding on appeal in favor of the prevailing party. [Citation.]” (Tusher v. Gabrielsen (1998) 68 Cal.App.4th 131, 140.)
Our consideration of the issues in the instant appeal is also subject to three well-established principles of appellate review: “First, the trial court’s judgment is presumptively correct, such that error must be affirmatively demonstrated, and where the record is silent the reviewing court will indulge all reasonable inferences in support of the judgment. [Citations.] . . . [¶] Second, findings must be sustained if they are supported by substantial evidence, even though the evidence could also have justified contrary findings. [Citations.] . . . [¶] Third, even if error is demonstrated it will rarely warrant reversal unless it appears ‘reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ [Citations.]” (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556-557.)
We do not reweigh or assess the credibility of the evidence. (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531.) Whether the evidence meets the “clear and convincing” burden of proof is a question for the lower court to determine, and the determination is not subject to review. (Toney v. Nolder (1985) 173 Cal.App.3d 791, 796-797.) The reviewing court must affirm the lower court’s findings if they are supported by substantial evidence. (Balcof, supra, 141 Cal.App.4th at p. 1521-1522.) “Evidence is substantial if it is ‘reasonable in nature, credible, and of solid value.’ [Citation.]” (Las Palmas Associates v. Las Palmas Center Associates (1991) 235 Cal.App.3d 1220, 1239.)
Appellant claims that the issues on appeal are subject to our independent review and, as supporting authority, cites to cases involving interpretation of writings and uncontradicted evidence. (See, e.g., Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861.) The resolution of this appeal, however, requires review of factual findings made from contradictory evidence and does not involve interpretation of a writing.
Determination of the burden of proof applicable to the type of issue presented by primary facts, however, is a question of law. (See Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 800-801; In re Marriage of Peters (1997) 52 Cal.App.4th 1487, 1490.) We review questions of law de novo. (Ghirardo, supra, at p. 801.) With regard to the applicable burden of proof, Evidence Code section 115 establishes the general rule that “[e]xcept as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence.” Evidence Code section 160 provides that the law referenced in section 115 includes constitutional, statutory and decisional law. Our task is to determine whether constitutional, statutory or decisional law requires a burden of proof higher than by a preponderance of the evidence in order to establish an oral transmutation of real property from decedent’s separate property, as shown on the record title, to community property of appellant and decedent. (Weiner v. Fleischman (1991) 54 Cal.3d 476, 483.)
In the instant case, the probate court applied the clear and convincing evidence burden of proof, citing the provision in In re Marriage of Weaver (1990) 224 Cal.App.3d 478 (Weaver) that, pursuant to Evidence Code section 662, “an oral transmutation of . . . separate property to community [property]” requires proof by clear and convincing evidence. (Weaver, supra, at p. 487.) Evidence Code section 662 provides that there is a presumption that record title establishes ownership, and the presumption may be rebutted only by clear and convincing evidence. The clear and convincing evidence standard has “been held to require evidence ‘“so clear as to leave no substantial doubt.”’ [Citation.]” (In re Marriage of Peters, supra, 52 Cal.App.4th at p. 1490.) The distinction has been described as that a preponderance of the evidence requires a probability, while the clear and convincing evidence standard demands a high probability. (1 Witkin, Cal. Evidence (4th ed. 2000) Burden of Proof and Presumptions, § 38, p. 187.)
Evidence Code section 662 provides: “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.”
Appellant asserts, however, that the court should have applied a preponderance of the evidence standard and determined characterization of the home, in accordance with the principles governing the fiduciary duty of each spouse to the other as set forth in Family Code section 721, subdivision (b). The presumption which arises from Family Code section 721, subdivision (b), is that an interspousal property transfer which advantages one spouse over the other is the product of undue influence and therefore, must be set aside unless the presumption is rebutted by the advantaged spouse by a preponderance of the evidence. (In re Marriage of Haines (1995) 33 Cal.App.4th 277, 287; accord, In re Marriage of Mathews (2005) 133 Cal.App.4th 624, 630-631.)
Family Code section 721, subdivision (b), provides: “Except as provided in [specified sections] of the Probate Code, in transactions between themselves, a husband and wife are subject to the general rules governing fiduciary relationships which control the actions of persons occupying confidential relations with each other. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other. This confidential relationship is a fiduciary relationship subject to the same rights and duties of nonmarital business partners . . . .”
Whether the applicable burden of proof for the existence or effect of an interspousal property transfer alleged in a case is by clear and convincing evidence as in Weaver or by a preponderance of the evidence as in Haines depends upon the facts in the case. The Haines court stated: “While we have no quarrel with the result in Weaver, we do not agree with the implied holding that [Evidence Code] section 662 is applicable to marital proceedings regardless of any conflict with [Family Code section 721, subdivision (b)].” (In re Marriage of Haines, supra, 33 Cal.App.4th at p. 300, italics added.) In Haines, the husband owned a residence prior to marriage, and shortly after marriage, he quitclaimed it to himself and his wife. When the marriage began deteriorating years later, the husband asked the wife to sign a quitclaim deed returning ownership of the residence to him as a condition to his co-signing on a car loan for his wife. (Id. at p. 284.) The Haines court held that the trial court erred in applying the Evidence Code section 662 presumption and requiring the wife to rebut it by clear and convincing evidence. The Haines court held that the wife had proven facts by a preponderance of the evidence which gave rise to the Family Code section 721 presumption of undue influence, the Family Code presumption applied rather than the Evidence Code section 662 presumption and, therefore, the burden was on the husband to rebut it by a preponderance of the evidence. (Id. at pp. 301-302.)
The Haines court also noted that Weaver did not use the presumption in section 662 as the basis for its ruling that the wife’s house was her separate property, but rather the Weaver court used the basis that the wife owned it before marriage. (In re Marriage of Haines, supra, 33 Cal.App.4th at p. 300.)
Based upon quite different facts, the Weaver court held that the trial court erred by allowing proof of an oral transmutation by a preponderance of the evidence rather than applying the clear and convincing evidentiary standard under Evidence Code section 662. (In re Marriage of Weaver, supra, 224 Cal.App.3d at pp. 485-487.) Unlike the Haines facts, there was never any record title held jointly by the husband and wife during marriage or any written transfer by either spouse of the spouse’s interest in the property to the other spouse during marriage. The Weaver court concluded that the wife acquired legal title to the home before marriage as separate property (formerly Civ. Code, §§ 5107, 5108; now Fam. Code, § 770), record title remained in the wife throughout the marriage, there was no written transmutation declaration as required by statute (former Civ. Code, § 5110.730, subd. (a), now Fam. Code, § 852, subd. (a)), and thus, the evidentiary standard in Evidence Code section 662 applied, requiring proof by the husband of the alleged oral transmutation agreement by clear and convincing evidence. (Weaver, supra, at pp. 484-487.)
Family Code section 770, in pertinent part, provides: “(a) Separate property of a married person includes all of the following: [¶] (1) All property owned by the person before marriage.”
Family Code section 852, subdivision (a), provides: “A transmutation of real or personal property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.”
The Haines court’s explanation for the difference between its holding and that of the Weaver court is useful for determining the burden of proof applicable in the instant case: “First, we note Weaver is distinguishable. The Weaver court used [Evidence Code] section 662 to protect the original character of the property from change rather than defend the character of the property after change. Also, the . . . Weaver court did not use the rebuttable presumption contained in section 662 to establish the wife’s property was her separate property, but rather ruled it was her separate property because she owned it before marriage. [Citations.] The Weaver court ruled the husband’s alleged oral agreement transmuting wife’s separate property to community property should be tested by the clear and convincing standard of proof of section 662[, placing] the higher burden of proof on the marital party that sought to gain an advantage.” (In re Marriage of Haines, supra, 33 Cal.App.4th at p. 300.)
As authority for her claim that a preponderance of the evidence standard applied as in Haines, appellant cites In re Marriage of Barneson (1999) 69 Cal.App.4th 583, In re Marriage of Delaney (2003) 111 Cal.App.4th 991 and In re Marriage of Balcof, supra, 141 Cal.App.4th 1509. In each case, the issue was the effectiveness of a written property transfer between the spouses during the marriage. In In re Marriage of Delaney, supra, at page 998, the appellate court stated: “In cases . . . involving interspousal property transactions, the ‘irreconcilable conflict’ between the two presumptions established by [Family Code] section 721 and Evidence Code section 662 has been resolved in favor of section 721, based on the intent of the Legislature in enacting fiduciary protections for interspousal transactions and general rules of statutory construction.” (Accord, Barneson, supra, at pp. 592-593; see also, Balcof, supra, at p. 1519.) The factual pattern common to Haines, Barneson, Delaney and Balcof is that there was a written transfer of property interests between spouses during marriage, which one of the spouses alleged changed the separate or community character of the property.
The only written interspousal transfer of property interest considered by the probate court in the instant case was the interspousal transfer deed. In its statement of decision, the court cited appellant’s signing the interspousal transfer deed as a fact supporting the court’s decision that the home was decedent’s separate property. Appellant contends that the Family Code section 721, subdivision (b), applies to determining the validity of the deed. As previously noted, under Family Code section 721, subdivision (b), a presumption of undue influence arises when an interspousal property transaction during marriage in which one spouse gains an advantage over the other spouse and the transaction must be invalidated unless the advantaged spouse rebuts the presumption by a preponderance of the evidence.
In the instant case, if appellant’s claim as to the applicability of Family Code section 721, subdivision (b), to the interspousal transfer deed were determined to be correct, it would invalidate only that deed. The result would be that the community property determination would be made on the basis of the original deed. Hence, in order to resolve this appeal, we need only address appellant’s contentions with regard to the original deed, and decline to further address appellant’s interspousal transfer deed contentions.
As previously noted, under the original deed, record title was held as “Pete Golsh Padilla, a married man, as his separate property.” Appellant’s contention that the probate court erred in requiring her to prove that the house was transmuted to community property by clear and convincing evidence not only applies with respect to the interspousal transfer deed, but also the original deed. The facts relevant to the original deed, however, are different from those applicable with regard to the burden of proof issues for the interspousal transfer deed as applied in In re Marriage of Haines, supra, 33 Cal.App.4th 277. The relevant facts closely parallel the facts in In re Marriage of Weaver, supra, 224 Cal.App.3d 478. Weaver involved no written interspousal transfer, but rather an alleged oral agreement between the spouses to transmute the character of real property which, from prior to and throughout the marriage, was under a record title consistent with characterization as separate property of the title-holder spouse. Similarly, in the instant case, record title to the home was in decedent, as his separate property, at all times from his purchase of the home prior to marriage throughout the marriage.
Here as in Weaver, there was no writing as required by Family Code section 852, subdivision (a), for a valid transmutation and by the statute of frauds (Civ. Code, § 1624, subd. (a)) for a valid transfer of an interest in real property. Appellant argues that she has an equitable estoppel defense to the writing requirement, and thus, Weaver is distinguishable. The doctrine of equitable estoppel has long been recognized as a defense to a claim that an agreement is unenforceable because it fails to comply with the statute of frauds writing requirement. (Phillippe v. Shapell Industries (1987) 43 Cal.3d 1247, 1270; see id. at pp. 1271-1272 (dis. opn. of Kaufman, J.).) The authority appellant cites in support of her argument, however, undercuts her reliance on equitable estoppel to prove transmutation of the home to community property. She cites In re Marriage of Benson (2005) 36 Cal.4th 1096. In Benson, the California Supreme Court examined the legislative history of the writing requirement in Family Code section 852, subdivision (a), and stated: “Here, we see no evidence the Legislature intended to incorporate traditional exceptions to the statute of frauds into section 852,” such as part performance. (Id. at p. 1109.) The court cited the holding in In re Marriage of Campbell (1999) 74 Cal.App.4th 1058 at pages 1063-1064 that a spouse cannot use estoppel to avoid the express writing requirement of section 852, subdivision (a). (Benson, supra, at p. 1109, fn. 6.)
The California Supreme Court in Benson articulated a holding in a context which further illustrates the parallel between Benson and the instant case: “Husband does not seek to undo a transmutation that was so grossly one-sided and unfair as to be the product of undue influence under section 721(b). [Citation.] He instead invokes these principles to establish a transmutation that fails to comply with the terms of section 852(a) . . . . However, absent a transmutation that otherwise satisfies section 852(a), there is no basis for applying the presumption of undue influence under section 721(b).” (In re Marriage of Benson, supra, 36 Cal.4th at p. 1112.) In the instant case, appellant is seeking to establish a transmutation of decedent’s separate property to community property. She is not seeking to undo a grossly one-sided and unfair transmutation, but rather seeks to utilize the Family Code section 721, subdivision (b), presumption to establish a transmutation that fails to comply with the terms of Family Code section 852, subdivision (a).
The Supreme Court declined, however, given the facts in Benson, to consider “whether there are any circumstances that might estop a marital partner from invoking section 852(a).” (In re Marriage of Benson, supra, 36 Cal.4th at p. 1109, fn. 6.)
Further, the purpose of the statute of frauds writing requirement, and thus, any defense to it, is to prove that an agreement exists, but not necessarily to determine its terms. (In re Marriage of Benson, supra, 36 Cal.4th at p. 1108.) Although equitable estoppel has been applied, for example, to uphold oral Marvin agreements between cohabitants by negating the writing requirement, nevertheless, it does not govern the applicable standard of proof as to terms of the agreement, such as for a Marvin agreement allegedly providing for joint ownership of real property for which record title has been in only one co-habitant, where proof must be by clear and convincing evidence, as required by Evidence Code section 662. (Byrne v. Laura (1997) 52 Cal.App.4th 1054, 1072.)
In Marvin v. Marvin (1976) 18 Cal.3d 660, the Supreme Court held that unmarried adults who voluntarily live together “may agree to pool their earning and to hold all property acquired during the relationship in accord with the law governing community property . . . .” (Id. at p. 674.)
The Weaver holding pertained to the standard of proof which applied to an alleged oral agreement to overcome the presumptions under Family Code section 770 and Evidence Code section 662 that record title established that the real property at issue was the separate property of the title-holder spouse. Weaver is on point. We conclude that the probate court properly required appellant to prove the alleged oral transmutation of the home from decedent’s separate property to community property by clear and convincing evidence. (In re Marriage of Weaver, supra, 224 Cal.App.3d at p. 487.)
Our next inquiry is whether substantial evidence supports the probate court’s implied finding that the home was decedent’s separate property during the marriage. (In re Marriage of Balcof, supra, 141 Cal.App.4th at pp. 1521-1522; Las Palmas Associates v. Las Palmas Center Associates, supra, 235 Cal.App.3d at p. 1239.) It is undisputed that the deed recorded at the time decedent purchased the home during the Marvin period, showed ownership in decedent’s name, as his separate property, and there was no change in record title during the Marvin period. Thus, decedent held title to the home as his separate property before his marriage to appellant, and, accordingly, after their marriage, the home qualified for characterization as decedent’s separate property pursuant to the definition of separate property in Family Code section 770, subdivision (a)(1). No part of the title record shows appellant ever had any interest in the home.
The “Marvin period” refers to the time during which decedent and appellant lived together prior to their marriage. (Marvin v. Marvin, supra, 18 Cal.3d at p. 674.)
Additionally, the record shows that, although decedent refinanced the home after his marriage to appellant, he made no change in the record title; it remained as “Pete Golsh Padilla, a married man, as his separate property.” Decedent had prior knowledge of the significance deeds and, particularly, of an interspousal quitclaim deed, given that, at the time he purchased the home, his then-wife, Mary, was required to sign such a deed disclaiming any interest in the home. Although he had ample opportunity to execute a deed conveying a joint interest in the home to appellant, he did not do so. No evidence was included in the record of any written expression by decedent of his desire, intent or agreement that the home was owned jointly by him and appellant. We conclude that there is substantial evidence to support findings that the home was not transmuted to community property and the home was decedent’s separate property at the time of his death. (Las Palmas Associates v. Las Palmas Center Associates, supra, 235 Cal.App.3d at p. 1239.)
Our opinion is limited to the specific issue of whether the trial court properly found that the home was not community property. We need not, and expressly decline to, make any determinations as to other issues, including, but not limited to, appellant’s right to seek reimbursement for her separate or the community’s contributions to the home or rights she may have as surviving spouse of an intestate decedent.
Clearly, the record shows that appellant presented evidence that decedent intended appellant to have ownership of the home after his death. For example, appellant testified consistently that she and decedent had an oral agreement from the time they began living together that they would jointly own all property. Numerous people who had known decedent and appellant for many years gave sworn statements that decedent had said several times that the home was to go to appellant after decedent’s death. From evidence presented, inferences could have been drawn that decedent signed the original and the refinance deeds with title as his separate property, rather than the joint property of decedent and appellant, because he was advised by lender representatives that he had to do that in order to complete the transaction. Evidence was presented that decedent believed the wording on his deed was required because, at the time of purchase, decedent was still married to his first wife. Testimony by appellant and others indicated that decedent intended the refinancing documentation to accomplish everything necessary to assure that appellant would own the home after his death. Appellant testified that decedent would not have left the deed showing him as sole owner and she would not have signed the interspousal transfer deed, but for the loan officer’s representation to them that, if they did not do so, they would have to pay $5,000 and that, in any event, the home was community property because they were married at the time of the refinancing.
Our task is limited, however, to determining whether, considering the totality of the record, there is any substantial evidence to support the probate court’s findings. (In re Marriage of Balcof, supra, 141 Cal.App.4th at p. 1521.) We have no authority to reweigh the probate court’s determination of whether the evidence presented by appellant at trial meets the clear and convincing burden of proof standard necessary to overcome the Evidence Code section 662 presumption that record title states the legally effective ownership. (Balcof, supra, at p. 1513.) Having concluded that substantial evidence supports the probate court’s finding that the home was not community property, we must affirm the finding. (Id. at p. 1513.) In order for appellant to prevail on her spousal property petition, the probate court would have had to find that the home was community property at the time of decedent’s death. (Prob. Code, §§ 100, 13500, 13650.) We conclude, therefore, that the probate court properly denied appellant’s spousal property petition and issued judgment against appellant.
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, P. J., ROTHSCHILD, J.