Opinion
C092241
08-31-2021
BRENT A. PAINTER, Plaintiff and Appellant, v. FRANCIS REALTY, INC. et al., Defendants and Respondents.
NOT TO BE PUBLISHED
Super. Ct. No. 187373
Duarte, J.
Plaintiff Brent A. Painter once again brings a pro se appeal from the trial court's grant of summary judgment in favor of defendants Francis Realty, Inc., Profit Sharing Plan (Francis Realty), The Carrington Company, Francis Carrington, First American Title Company (First American Title), and the State Water Resources Control Board, Division of Water Rights (the Board). The dispute between plaintiff and Francis Realty stems from a $550,000 loan plaintiff's mother, Betty Painter, obtained from Francis Realty in 2009. The loan was memorialized by a promissory note and secured by a deed of trust against real property in an unincorporated part of Shasta County. Betty defaulted on the note, and Francis Realty purchased the property at a foreclosure sale. Plaintiff and Betty previously filed actions against Francis Realty related to its conduct in connection with the foreclosure, which the trial court disposed of in summary judgment. In two previous appeals, we first reversed the trial court's allocation of attorney fees to Francis Realty (Painter v. Francis Realty, Inc. (June 23, 2014, C073864) [nonpub. opn.]), and then affirmed the trial court's award of attorney fees on remand (Painter v. Francis Realty, Inc. (Oct. 6, 2015, C078106) [nonpub. opn.]).
Because Brent and Betty Painter share a surname, we refer to Betty Painter by her first name and Brent Painter by “plaintiff.”
In this iteration of the dispute, plaintiff contends that Francis Realty fraudulently transferred ownership of a pre-1914 water right that plaintiff contends was his separate property and not included in the property securing the note. His complaint claimed that Francis Realty published two injurious falsehoods: (1) representing to First American Title, who handled the escrow for the loan, that Betty signed amended escrow instructions adding to the description of the property in the deed of trust securing the note all water rights associated with the property, and (2) representing to the Board that it had obtained the pre-1914 water right to transfer ownership of that water right to itself. Plaintiff's complaint further alleged that defendants conspired to commit these acts, and he also sought to quiet title and obtain declaratory relief.
The trial court granted summary judgment in favor of defendants. On appeal, plaintiff contends the court improperly granted defendants' motion by resolving issues, rather than by identifying triable issues of fact. He further argues that the court improperly relied on a single affidavit supporting defendants' motion. Disagreeing, we affirm.
FACTS AND PROCEEDINGS
Pre-1914 Water Rights
This case involves what is known as a “pre-1914 water right.” As background, we briefly consider the nature of such a water right under California law.
“Ownership of California's water is vested generally in the state's residents, but individuals and entities can acquire ‘water rights,' the right to divert water from its natural course for public or private use.” (Light v. State Water Resources Control Bd. (2014) 226 Cal.App.4th 1463, 1477-1478.) “California operates under the so-called dual system of water rights which recognizes both the appropriation and the riparian doctrines. [Citation.] The riparian doctrine confers upon the owner of land contiguous to a watercourse the right to the reasonable and beneficial use of water on his land. The appropriation doctrine contemplates the diversion of water and applies to ‘any taking of water for other than riparian or overlying uses.' [Citation.] Both riparian and appropriative rights are usufructuary only and confer no right of private ownership in the watercourse.” (People v. Shirokow (1980) 26 Cal.3d 301, 307, fn. omitted.)
“Initially, rights to appropriate water were acquired by actual diversion and use of the water. Beginning in 1914, however, a statutory scheme has provided the exclusive method of acquiring appropriation rights. [Citation.] Thus, an application for appropriative rights must now be made to the Board for a permit authorizing construction of necessary water works and the taking and use of a specified quantity of water.” (United States v. State Water Resources Control Bd. (1986) 182 Cal.App.3d 82, 102.) Appropriative rights initiated prior to the enactment of the statutory scheme--known as “pre-1914 rights”--are not subject to the statutory scheme for purposes of acquisition and supervision of use. (People v. Murrison (2002) 101 Cal.App.4th 349, 359, fn. 6.)
Factual Background
The following facts are taken from the evidence set forth in the papers filed in connection with the summary judgment motion, except that to which objections were properly made and sustained. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) We summarize the evidence in the light most favorable to plaintiff, the party opposing summary judgment, resolving any doubts concerning the evidence in his favor. (Ibid.)
In 2004, Betty purchased a functioning cattle ranch and apple farm called the Terry Mill Ranch--Assessor's Parcel Number (APN) 029-640-005 and APN 029-640-007--in Round Mountain, California, in unincorporated Shasta County (the property). Around the time Betty purchased the property, plaintiff and Betty were aware that the previous owner of the property also owned a pre-1914 water right--water right S002593 (the water right)--that was separate from the property. The water right authorizes use of water from the Childs-Bowley-Calkins Ditch, which is the diversion of the pre-1914 appropriation established in 1878. Plaintiff purchased the water right with his personal funds, and the previous owner notified the Board that plaintiff was the new owner of the water right.
The Loan
In 2007, the previous owner of the property died, leaving an owner carried note to his heirs. In 2009, Betty and plaintiff decided Betty should declare bankruptcy and secure a loan to pay off the owner carried note. As an alternative plan, in July 2009 a mortgage broker drafted an “executive summary” for the property for a possible loan for plaintiff and his wife, Mary Kay Domke, which included the water right. Plaintiff contacted multiple mortgage brokers regarding a potential new loan.
Plaintiff was contacted by Thomas Jarrett of TJF Investments, an independent contractor, who informed plaintiff that he had received plaintiff's information from one of these brokers. Plaintiff asserted that he did not send the executive summary to Jarrett or Jeff Hage, who was also involved with TJF Investments.
Jarrett contacted Donna Sanders, an employee of Francis Realty, regarding the loan. On August 11, 2009, in response to Sanders' expression of interest, Jarrett sent Sanders an e-mail attaching the executive summary. The e-mail appears to have been forwarded to Jarrett by Hage, but written by plaintiff; the bottom includes plaintiff's name, phone number, and “Terry Mill Ranch, ” and the body of the e-mail describes the executive summary as “my executive summary” and states, “I have all the documents available....”
The executive summary described the irrigation water source for the property as “1863 deeded water rights adjudicated in 1920 that is completely gravity flow so there are no escalating service costs to operate. The debt service would be no more than 27.5% in-loan-to-value after funding for the new loan amount of $550,000.” The summary stated the “[c]urrent value is $1 [million] land value and $1 [million] water rights value.” In setting forth the loan value, amounts, and costs associated with the requested loan amount of $549,933, the summary again stated that the loan-to-value ratio is “27.5% with water rights value.” In an e-mail to Sanders on August 13, Jarrett reiterated that “the borrower” needed to “net” the amount of $510,000, “so the loan needs to be $550,000.... he has a complete cost breakdown of the funds needed and for what purpose.” The record does not include any cost breakdown other than the executive summary.
Sanders stated in her declaration supporting summary judgment that she and Francis Carrington relied on the summary when deciding whether to make the loan. She continued, “[i]t was evident from the executive summary that, whatever water rights were associated with the Property, they were being offered as part of the security for the Loan. The asserted value of the Property and loan-to-value ratio could not make sense otherwise.” Neither party discussed any water right related to the property that was owned by plaintiff and not a part of the loan. Sanders believed the property encumbered by the deed of trust included all water rights related in any way to the property, and Carrington made the loan with that understanding.
In a September 4 e-mail written to Jarrett, Sanders stated her understanding that the executive summary was sent to her from Hage, who received it from plaintiff. She asserted, “[t]here is nothing... that indicates that [the executive summary] was not the current terms of the loan that you were soliciting.” She continued to say that the executive summary “was the basis for Mr. Carrington agreeing to fund the loan. He relied on this information, including the breakdown of what the requested funds were for, in making his decision. On two separate occasions I referred to details in this document in emails I sent to you and at no time did you inform me that it was not representative of the facts or terms of this loan.”
On August 28, Sanders expressed confusion about a discrepancy between the executive summary and the title report. She e-mailed Jarrett: “In the Executive Summary you send on August 11th it says ‘Property is held in trust in Brent Painters name as trustee. The trust is currently owned by both Mary Domke and Brent Painter as community property by way of marriage'. Yet on the title report it says there was a conveyance recorded on July 20th, 2009 from Betty Painter, Trustee for the Betty J. Painter Family Trust to Betty Painter. Please explain the discrepancy.” (Italics omitted.)
On the morning of August 31, Domke accompanied Betty to sign the loan documents with Hage. Hage left the parking lot after Betty signed the documents, and Betty left the parking lot at approximately 9:20 a.m. to go to her job caretaking for an elderly man until 4:30 p.m. that day.
That same morning at 9:18 a.m., Sanders e-mailed TJF Investments: “I went over everything with Mr. Carrington this morning and he is ok with funding the loan but required that the Deed of Trust specifically reference the encumbrance on the water rights.” Jarrett replied that would be “no problem” and that “we will reference the water rights (encumbrance) as an addendum.” He added, “you do know the water rights go/travel/run with the property when sold right?”
Johannah Swain, the employee at First American Title handling the escrow for the loan, asserted that “Thomas Jarrett/Jeff Hage” contacted her at 1:12 p.m. on August 31 and stated that Francis Realty wanted the following language to be added to the deed of trust securing the loan: “Together with all rights to use and divert surface and ground waters, whether such rights are characterized as real or personal property.” (Capitalization omitted.) Swain informed Jarrett that she needed written instructions authorizing the additional language, so she prepared amended/supplemental escrow instructions (the amended escrow instructions) and e-mailed them to Jarrett, Hage, and Sanders. Sanders secured Francis Carrington's signature on the amended escrow instructions and returned them to Swain.
Plaintiff spoke with Betty several times on August 31, and Betty did not mention any additional contacts with TJF Investments or amended escrow instructions. However, when Swain returned to her office the morning of September 1, the signed amended escrow instructions with Betty's signature were waiting in the efax. The signed document in the record indicates it was faxed twice, once on August 31 at 3:08:28 p.m. and again on September 1 at 6:34 a.m.
Sanders stated in her declaration that she did not prepare the amended escrow instructions, was not involved in obtaining Betty's signature, and never represented to First American Title that she had executed the document. Sanders further stated that no one connected to Francis Realty prepared any documents for the loan or was involved with securing Betty's signature on loan documents; she asserted that all of that was handled by First American Title, which was retained by TJF Investments. First American Title Company's escrow documents did not include the original signed amended escrow instructions from Betty.
In opposition to summary judgment, plaintiff retained a handwriting expert to examine Betty's signature on the document. The expert concluded that the signature “suggests that it is genuine, ” but “this is only an ‘investigative lead' requiring the examination of the original document.”
On September 1, plaintiff and Domke were with Betty when she received a 10-page fax from Swain with a document that Betty was to sign and fax back to Swain. The fax cover page stated, “[o]nce received, I will order loan funds from the lender, record the new loan and issue payoffs to your existing loans ASAP.” The description of the property in the faxed document did not include the language from the amended escrow instructions.
The loan closed on September 2. The closing documents Francis Realty received included a copy of the amended escrow instructions signed by Betty.
On September 4, Sanders e-mailed Jarrett regarding a dispute over a lender fee. Sanders again referred to the executive summary: “There is nothing in your original email, or any subsequent communication that indicates that what I received [the executive summary] was not the current terms of the loan that you were soliciting.” Sanders added: “I am attaching the full Executive Summary that you sent to me which was the basis for Mr. Carrington agreeing to fund the loan. He relied on this information, including the breakdown of what the requested funds were for, in making his decision. On two separate occasions I referred to details in this document in emails I sent to you and at no time did you inform me that it was not representative of the terms of this loan.”
In November 2009, Al Puhlman, who owned a ranch adjacent to the property owned by Betty and was responsible for filing usage reports for the Childs-Bowley-Calkins Ditch for all of the owners of water rights associated with the ditch, wrote a letter to Francis Carrington. He informed Francis Carrington that the irrigation water source for the property was a water right that had been recorded in 1884, which was delivered through a ditch to five ranches, including the Painters'.
Default, Trustee's Sale, and Subsequent Transfers
Betty subsequently defaulted under the note. On February 16, 2012, a trustee's sale was held, and Francis Realty purchased the property by way of a credit bid. The trustee's deed upon sale described the property in part as “together with all rights to use and divert surface and ground waters, whether such rights are characterized as real or personal property.” Sanders asserted that Francis Realty believed it owned all water rights to the property after taking title to the property. Sanders discussed Francis Realty's water rights with Puhlman, who advised Sanders to contact the Board to register as the new owner of the property's water rights.
On February 24, 2012, Sanders contacted the Board and registered Francis Realty as the new owner of water right S002593. Sanders told Erika Heath, a Board employee, that Francis Realty had obtained the property through foreclosure. Heath did not ask Sanders about Betty or plaintiff, Sanders “had no reason to mention them, and thereafter no one at [the Board] ever asked about [plaintiff] or Betty or gave [her] reason to discuss them.” Plaintiff did not receive notice of the change of ownership.
Plaintiff and Domke refused to vacate the property, and Francis Realty prosecuted an unlawful detainer action to recover possession of the property. Plaintiff and Betty filed an action to unwind the foreclosure and set aside the sale of the property, but the trial court granted a motion of summary judgment against them.
In August 2013, Francis Realty transferred the property to the Carrington Family 2000 Trust. The description of the property on the deed of trust included the language from the amended escrow instructions.
In July 2015, Carrington sold the property to Kenneth Moore for $475,000. Sanders advertised the property as including water right S002593, which she believed Carrington owned, and the sale included the water right. According to Sanders, defendants “have no interest in the Property and no interest in any water rights connected to the Property, including Water Right [S]002593.” The property description in the grant deed did not include the language first appearing in the amended escrow instructions. At summary judgment in support of the assertion that it no longer owned the water right, Francis Realty produced statements of water diversion and use for 2016 for the Childs-Bowley-Calkins Ditch. The report listed Kenneth Moore as “co-owner” of the ditch, listed his associated properties as APN 029-640-005 and 029-640-007, and identified his address as 17582 Mountain School Rd., Round Mountain, California 96084. No one associated with defendants is mentioned in the report.
Plaintiff's Complaint
Plaintiff and Betty filed the instant lawsuit in April 2015. Following the trial court's ruling on demurrer, Betty was dismissed from the action. In August 2018, plaintiff filed his fifth amended complaint, which is the operative complaint. He alleged five causes of action: (1) quiet title as to plaintiff's ownership of the water right; (2) declaratory relief as to his rights and obligations as to ownership of the water right; (3) Francis Realty and its agents--Sanders, Jarrett, and Hage--published an injurious falsehood by representing to First American Title that Betty had executed the amended escrow instructions; (4) Sanders published an injurious falsehood by representing to the Board that Francis Realty had obtained ownership of the water right and that plaintiff's whereabouts were unknown; and (5) defendants conspired to publish injurious falsehoods against plaintiff.
Francis Realty's Motion for Summary Judgment
Francis Realty filed a motion for summary judgment, or, in the alternative, summary adjudication, as to each of plaintiff's causes of action. It asserted that plaintiff's causes of action for quiet title and declaratory relief lacked merit because defendants claimed no interest in water right S002593, the property, or any other water rights associated with the property.
With respect to plaintiff's third cause of action for injurious falsehood, Francis Realty argued that Sanders did not make any false representation to First American Title related to Betty's execution of the amended escrow instructions. Regarding plaintiff's fourth cause of action for injurious falsehood, Francis Realty asserted that Sanders believed Francis Realty owned the water right at the time she represented to the Board that Francis Realty had obtained ownership of the water right. Finally, Francis Realty asserted that it was entitled to summary judgment as to plaintiff's cause of action for conspiracy because plaintiff's causes of action for injurious falsehood, which formed the basis of the conspiracy claim, lacked merit.
In support of its motion, Francis Realty filed a separate statement of undisputed material facts that relied almost exclusively on Sanders' declaration. Francis Realty also requested that the trial court take judicial notice of several documents Betty and plaintiff had filed in the United States Bankruptcy Court.
Opposition to Defendants' Motion for Summary Judgment
Plaintiff opposed Francis Realty's motion. Regarding plaintiff's first two causes of action, he asserted that Francis Realty retained ownership of the water right based on the absence of any description of the water right in the grant deed to Moore. Plaintiff argued there was a triable issue of fact as to his third cause of action for injurious falsehood because the Swain declaration “implicates the defendants as the originator of the act.” Plaintiff further asserted that “[t]he fact is Betty did not sign the document, ” pointing to the lack of the original signed document or a notarized copy.
Plaintiff also referred to a document that was subject to a sustained objection by the trial court. Plaintiff does not challenge that evidentiary ruling on appeal; therefore, we do not consider that document.
As to his fourth cause of action, plaintiff recognized that Sanders “may or may not” have mentioned Betty or plaintiff when speaking with Heath to transfer ownership of the water right. But he asserted he did not receive notice of the change of ownership of the water right. Accordingly, he argued Sanders must have used “the fraudulent property description acquired during escrow of the refinance of [Betty's] property loan” and a regulatory presumption that a water right passes with the land where the water is used is used in a foreclosure sale, “unless there is a showing that the water right is not appurtenance or incident to the real property.” (Cal. Code Regs., tit. 23, § 834.) Finally, plaintiff claimed that a triable issue of material fact existed based on his causes of action for injurious falsehood.
In support of his opposition, plaintiff responded to Francis Realty's statement of undisputed facts and filed declarations of himself, Swain, and Domke. Plaintiff did not object to Francis Realty's evidence.
Francis Realty's Reply
Francis Realty filed a reply to plaintiff's opposition. The reply reiterated that Sanders made no knowingly false statements, as required by plaintiff's causes of action for injurious falsehood, and it made no claim as to any interest in the water right, as required by plaintiff's quiet title and declaratory relief causes of action. Francis Realty objected to portions of plaintiff's declaration.
Trial Court Ruling
The trial court sustained Francis Realty's objections to plaintiff's declaration, granted Francis Realty's request for judicial notice, and granted Francis Realty's motion for summary judgment. The court concluded that Francis Realty did not have or assert an interest in the water right, and therefore plaintiff's quiet title and declaratory relief causes of action lacked merit. The court concluded no evidence supported the finding that Francis Realty made any representation to First American Title regarding Betty's signature on the amended escrow instructions. With respect to plaintiff's fourth cause of action for injurious falsehood, the court concluded that defendants established that Sanders had no actual knowledge of the falsity of her representation to the Board as to Francis Realty's ownership of the water right. The court further recognized that plaintiff's argument that defendants had a duty to make a more detailed inquiry was unsupported by fact or law. Regarding plaintiff's claim that Sanders stated she did not know where plaintiff was located, the court credited Sanders' declaration that she made no such representation. Finally, because the court granted defendants' motion for summary judgment regarding plaintiff's claims for injurious falsehoods, plaintiff could not sustain a claim for conspiracy.
The trial court entered an order on the motion and judgment after the motion. Francis Realty filed notice of entry of judgment.
Plaintiff's New Trial Motion
Plaintiff moved for a new trial and submitted supporting declarations. The trial court denied the motion.
Plaintiff appealed from the order denying his motion for new trial. An order denying a motion for new trial “is not independently appealable and may be reviewed only on appeal from the underlying judgment.” (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 19.) Thus, plaintiff has “plainly erred in seeking to appeal from the... order... rather than from the... judgment....” (Ibid.) However, “[w]here... the sole notice of appeal is from the order denying a new trial, most courts have allowed the appeal to go forward by construing the notice to encompass the underlying judgment.” (Ibid.) Because it is “reasonably clear [plaintiff] intended to appeal from the judgment and [defendants] would not be misled or prejudiced, ” we construe plaintiff's notice of appeal from the order denying a new trial “to be an appeal from the underlying judgment.” (Id. at p. 22.) While an order denying a motion for new trial is not appealable, “[s]uch an order... may be reviewed on appeal from the underlying judgment.” (Id. at p. 18.)
DISCUSSION
I
Summary Judgment
Plaintiff contends the trial court erroneously granted Francis Realty's motion for summary judgment because it credited Sanders' declaration and failed to address any material facts, substantial evidence, or declarations he submitted in opposition to the motion. He contends that he raised a genuine dispute of material fact as to each of his five causes of action. As we will explain, we disagree.
A. Standard of Review
On a motion for summary judgment, a defendant must show “that one or more elements of the cause action... cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) Summary judgment is appropriate only “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Id., subd. (c).) A triable issue of material fact exists if the evidence and inferences therefrom would allow a reasonable juror to find the underlying fact in favor of the party opposing summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
“Because this case comes before us after the trial court granted a motion for summary judgment, we take the facts from the record that was before the trial court when it ruled on that motion. [Citation.] ‘ “We review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.”' [Citation.] We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Yanowitz v. L'Oreal USA, Inc., supra, 36 Cal.4th at p. 1037.)
“In performing an independent review of the granting of summary judgment, we conduct the same procedure employed by the trial court. We examine (1) the pleadings to determine the elements of the claim, (2) the motion to determine if it establishes facts justifying judgment in the moving party's favor, and (3) the opposition-assuming movant has met its initial burden-to ‘decide whether the opposing party has demonstrated the existence of a triable, material fact issue. [Citation.]' [Citations.] We need not defer to the trial court and are not bound by the reasons in its summary judgment ruling; we review the ruling of the trial court, not its rationale.” (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 630.)
Our review is governed by a fundamental principle of appellate procedure, namely, that “ ‘[a] judgment or order of the lower court is presumed correct,' ” and thus, “ ‘error must be affirmatively shown.' ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, italics omitted.) Under this principle, plaintiff bears the burden of establishing error on appeal, even though defendants had the burden of proving their right to summary judgment before the trial court. (Frank and Freedus v. Allstate Ins. Co. (1996) 45 Cal.App.4th 461, 474.) For this reason, our review is limited to contentions adequately raised and supported in plaintiff's brief. (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125-126.)
B. Sanders' Declaration
Plaintiff contends that the trial court erred by accepting Sanders' declaration while strictly construing, or completely ignoring, the declarations of Swain and Domke. To the extent plaintiff challenges the reasoning of the trial court in making its ruling, we review the ruling of the court, not its rationale. (Oakland Raiders v. National Football League, supra, 131 Cal.App.4th at p. 630.) Moreover, while plaintiff raises multiple objections to Sanders' declaration on appeal, he forfeited those arguments by failing to raise them at summary judgment. (Rodriguez v. E.M.E., Inc. (2016) 246 Cal.App.4th 1027, 1045.)
Plaintiff further objects on appeal to the trial court's acceptance of an unauthenticated copy of his executive summary, but he failed to object to that evidence at summary judgment as well and has forfeited that argument.
C. Third Cause of Action: Injurious Falsehood
Plaintiff contends there is a genuine dispute of material fact as to whether Francis Realty is liable for publication of an injurious falsehood by knowingly and falsely representing to First American Title that Betty had agreed to and signed the amended escrow instructions. A person is liable for publication of an injurious falsehood, which is “a false statement harmful to the interests of another, ” if the person “intends for publication of the statement to result in harm to interests of the other having a pecuniary value, or either recognizes or should recognize that it is likely to do so, and... knows that the statement is false or acts in reckless disregard of its truth or falsity.” (Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277, 289-290.)
Francis Realty's motion for summary judgment established facts demonstrating that neither Sanders nor anyone associated with Francis Realty made any knowingly false statement to First American Title related to Betty's execution of the amended escrow instructions. There is no evidence in the record that Betty's signature on the document was forged, and even if there were such evidence, there is no evidence that Sanders or anyone at Francis Realty had any part in forging the document.
Plaintiff raised two arguments in opposition to Francis Realty's motion. First, he asserted that the Swain declaration “implicates the defendants as the originator of the act.” But while it is undoubtedly true that Sanders insisted that the language in the amended escrow instructions be added to the deed of trust, it is purely speculative to assert that Sanders also helped to forge Betty's signature and send the forged document to First American Title. Merely requesting additional language to be added to the deed of trust is not evidence that any kind of false representation occurred.
Second, plaintiff contended that the signed document is not in First American Title's escrow file, and the document was not notarized. While that is also true, that does not raise a triable issue of fact that Betty's signature was forged or that Sanders or anyone from Francis Realty played a role in forging the document. Any such suggestion is entirely speculative. Indeed, the only evidence in the record as to the validity of Betty's signature was offered by plaintiff in the form of a handwriting expert, who opined that the image of the signature “suggests that it is genuine” but that confirming the legitimacy of the signature required examining the original document. Moreover, even if the lack of an original signed version of the amended escrow instructions did support a finding of fraud--it does not--there is no evidence that Sanders or any agent of Francis Realty made any false representation to First American Title that could support a cause of action for publishing an injurious falsehood. While plaintiff's complaint claimed that Jarrett and Hage were acting as agents for Francis Realty, there is simply no evidence to support that conclusion. Accordingly, plaintiff has failed to raise a triable issue of fact, and the trial court did not err in granting Francis Realty's motion for summary judgment as to his third cause of action.
On appeal, plaintiff raises the argument--not raised in the trial court--that Betty could not have signed the documents on August 31. By failing to make this argument at summary judgment, he has forfeited the argument. “Though this court is bound to determine whether [Francis Realty] met [its] threshold summary judgment burden independently from the moving and opposing papers, we are not obliged to consider arguments or theories, including assertions as to deficiencies in [Francis Realty's] evidence, that were not advanced by [plaintiff] in the trial court. ‘Generally, the rules relating to the scope of appellate review apply to appellate review of summary judgments. [Citation.] An argument or theory will... not be considered if it is raised for the first time on appeal. [Citation.] Specifically, in reviewing a summary judgment, the appellate court must consider only those facts before the trial court, disregarding any new allegations on appeal. [Citation.] Thus, possible theories that were not fully developed or factually presented to the trial court cannot create a “triable issue” on appeal.' [Citation.] ‘A party is not permitted to change his position and adopt a new and different theory on appeal. To permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing litigant.' ” (DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 676 (DiCola); accord, Noe v. Superior Court (2015) 237 Cal.App.4th 316, 335 [appellate court “generally will not consider an argument ‘raised in an appeal from a grant of summary judgment... if it was not raised below...' ”]; North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 28-29 [permitting a change of theory on appeal from a grant of defense summary judgment would be “manifestly unjust to the opposing parties, unfair to the trial court, and contrary to judicial economy”].)
D. Fourth Cause of Action: Injurious Falsehood
Plaintiff challenges the judgment regarding his fourth cause of action for publication of an injurious falsehood, in which he claimed that Sanders misrepresented to the Board that Francis Realty had obtained ownership of the water right with knowledge that the statement was false or with reckless disregard of the truth or falsity of the statement. As we discussed ante, a publication of an injurious falsehood is only actionable where the publisher “knows that the statement is false or acts in reckless disregard of its truth or falsity.” (Hartford Casualty Ins. Co. v. Swift Distribution, Inc., supra, 59 Cal.4th at pp. 289-290.)
Plaintiff's complaint also claimed that Sanders represented to the Board that she was unaware of plaintiff's whereabouts. The trial court granted defendants' motion for summary judgment as to that alleged publication of an injurious falsehood. Plaintiff does not challenge that ruling on appeal; rather, he asserts that whether Sanders mentioned him or Betty “is beside the point as it is the water right number, S002593, that had to be discussed.” Accordingly, we do not address that claim.
Francis Realty's motion for summary judgment demonstrated that Sanders honestly believed Francis Realty had acquired title to the water right at the time she transferred ownership in her discussion with the Board. The only finding supported by the record is that Sanders and Francis Carrington relied on the executive summary in deciding whether to loan the funds to Betty. Sanders received the executive summary from Jarrett that plaintiff had appeared to characterize as “my executive summary.” Sanders repeated in her declaration and emphasized in her communications with Jarrett that both she and Francis Carrington relied on the summary to provide the details of the loan. In support of that understanding, Sanders informed Jarrett that Francis Realty required the deed of trust securing the note to specifically reference the encumbrance on the water rights related to the property.
We recognize that plaintiff disputes that he sent the executive summary to Hage. However, the issue before us is not whether plaintiff actually sent the executive summary, but rather whether Sanders relied on the executive summary as reflecting the details of the loan.
Sanders further asserted that she reviewed numerous bankruptcy filings by plaintiff and Betty, of which the trial court took judicial notice. (Evid. Code, § 452, subd. (d); see Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 485 [court may take judicial notice of a party's admissions or concessions where the admission “ ‘can not reasonably be controverted' ” such as in answers to interrogatories, requests for admission, or in affidavits and declarations filed on the party's behalf].) These documents support Sanders' contention that she believed the water right was part of the property to which Francis Realty took title in the foreclosure sale. In a declaration Betty filed in bankruptcy court in support of her motion to proceed with the loan at issue here, she stated that the property had a market value of $1 million, and, “[i]n addition, the Terry Mill Ranch property includes substantial water rights deeded in 1863 and adjudicated in 1920. I believe these water rights have an independent market value of $1 million.” Plaintiff filed a declaration with identical language. In her Schedule A filing, Betty valued the property as worth $1,995,000, which included “associated water rights value of $1 million.”
Plaintiff did not object to the admissibility of these documents or to Sanders' discussion of them in her declaration.
In December 2011, with respect to plaintiff's and Domke's bankruptcy intended to prevent the property from being sold in foreclosure, plaintiff and Domke filed a Schedule A and Schedule B. They valued the property, including dedicated water rights and timber, at $1,995,000. Although plaintiff acknowledged that that filing included water right S002593 because it was his and Domke's bankruptcy, rather than Betty's, the filing does not identify water right S002593 or any separate $1 million water right.
The evidence presented by Francis Realty justifies judgment in its favor as it supports Sanders' belief that Francis Realty had obtained all water rights associated with the property when it purchased the property in foreclosure.
In his opposition to summary judgment, plaintiff argued that Sanders was able to transfer title of the water right without having the Board mail notice to him of the change of ownership by “using the fraudulent property description acquired during escrow” and improperly relying on the inapplicable presumption that a water right passes with the land where the water is used upon a foreclosure sale unless there is a showing that the water right is not appurtenance or incident to the real property. (Cal. Code Regs., tit. 23, § 834.) But as we have discussed, plaintiff failed to raise a triable issue of fact as to whether Betty's signature on the amended escrow instructions was forged or otherwise invalid.
The trial court concluded in its summary judgment ruling: “[a]t best, Plaintiff argues Defendants were reckless because they had a duty to make a more detailed inquiry. This argument is unsupported by fact or law.” On appeal, plaintiff contends that Sanders could not justifiably rely on the executive summary to support her belief that the deed of trust securing the loan included the water right, and that Francis Realty could not claim that it had no actual knowledge that the water right was separate property because it is an experienced real estate investor. But there is nothing in the record to suggest that Sanders actually conducted any such research that would rebut the assertion that Sanders believed her representations to the Board were true. Nor does plaintiff offer any support to his position that Sanders had a duty to conduct additional research into the ownership of the water right before transferring it.
Plaintiff also contends that Sanders must have learned that the water right was plaintiff's separate property in the process of transferring its ownership. Alternatively, plaintiff suggests that Heath could have looked up the ownership and asked Sanders if the foreclosed property was in plaintiff's name, “or if she simply accepted whatever [Sanders] told her.” But plaintiff acknowledges he does not know how Sanders went about changing the ownership of the water right with the Board. The only evidence is provided by Sanders' declaration, in which she stated that after Francis Realty took title to the property after foreclosure, they believed they owned “all water rights related to the Property, ” which would include water right S002593 even if it were in plaintiff's name. Moreover, after Francis Realty took title to the property in foreclosure, Sanders discussed the property's water rights with Puhlman, who advised Sanders to register as the new owner of the water right with the Board. Plaintiff points to no evidence suggesting that Sanders knew that Francis Realty did not take title to the water right in the foreclosure sale. Accordingly, plaintiff has failed to establish a triable issue of fact as to his fourth cause of action for publication of an injurious falsehood.
E. Fifth Cause of Action: Conspiracy
Plaintiff's challenge to the trial court's ruling as to his cause of action for conspiracy is predicated on the existence of triable issues of fact as to his claims for injurious falsehood. Because summary judgment was appropriate as to those claims, it is also appropriate as to plaintiff's cause of action for conspiracy.
F. First Cause of Action: Quiet Title
Plaintiff contends his quiet title cause of action survives summary judgment because defendants failed to show that they do not still own water right S002593. “ ‘A quiet title action seeks to declare the rights of the parties in realty.... “ ‘The object of the action is to finally settle and determine, as between the parties, all conflicting claims to the property in controversy, and to decree to each such interest or estate therein as he may be entitled to.' ”' ” (Chao Fu, Inc. v. Chen (2012) 206 Cal.App.4th 48, 58.)
“An element of a cause of action for quiet title is ‘[t]he adverse claims to the title of the plaintiff against which a determination is sought.' ” (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 802.) Pretrial adjudication of a plaintiff's quiet title cause of action may be properly sustained where defendants have no adverse claims to title. (See, e.g., Orcilla v. Big Sur, Inc. (2016) 244 Cal.App.4th 982, 1010 [demurrer to quiet title claim properly sustained on res judicata bar]; West, at pp. 802-803 [demurrer to quiet title claim properly sustained where judicially noticed documents showed that none of the named defendants had adverse claims to title].)
Francis Realty's motion for summary judgment presented evidence justifying judgment in their favor. Sanders stated that she “advertised the Property as including Water Right [S]002593, which I believed Carrington owned, and the sale included Water Right [S]002593.” She then stated, “[w]e have no interest in the Property and no interest in any water rights connected to the Property, including Water Right [S]002593.” Sanders attached as an exhibit to her declaration a report filed with the Board in 2017 regarding the usage of the Childs-Bowley-Calkins Ditch. The report listed Kenneth Moore as “co-owner” of the ditch, listed his associated properties as APN 029-640-005 and 029-640-007, and listed his address as 17582 Mountain School Rd., Round Mountain, California 96084. No one associated with defendants is mentioned in the report.
In opposition to Francis Realty's motion for summary judgment, plaintiff argued: “It is incomprehensible that defendants would deny ownership of the appropriated pre-1914 water right S02593 when public records contradict that ascertainment.” In support, he pointed to the 2013 transfer of the property from Francis Realty Inc. Profit Sharing Plan to the Carrington Family 2000 Trust, and he asserted that, following this transfer of title to the property, Francis Realty, Inc. Profit Sharing Plan did not notify the Board of a change of ownership of water right S002593. But plaintiff does not provide any support for the proposition that Board notification affects ownership.
Plaintiff then recognized that the description of the property in the grant deed transferring the property to Moore in 2015 did not include the language from the amended escrow instructions, which had been included in the property description in the trustee's deed upon sale following foreclosure and the 2013 transfer to the Carrington Family 2000 Trust: “[t]ogether with all rights to use and divert surface and ground waters, whether such rights are characterized as real or personal property.” (Capitalization omitted.)
Plaintiff cited to a document that was subject to an objection sustained by the trial court. Plaintiff does not challenge that evidentiary ruling on appeal, and therefore we do not consider that document. On appeal, plaintiff also refers to a declaration he submitted in support of his motion for new trial. Francis Realty objected to that evidence. That evidence was not before the trial court during summary judgment, and the court recognized that plaintiff failed to explain why that evidence could not have been provided in his original opposition. The court further observed that the new evidence was objectionable and would not have created a triable issue of fact even if it had been presented. Plaintiff offers no argument as to the admissibility of that declaration, and therefore we do not consider it.
However, plaintiff's opposition to Francis Realty's motion for summary judgment failed to contradict Francis Realty's evidence that they did, in fact, sell water right S002593 to Moore, who now owned that water right. Plaintiff fails to provide support for the proposition that the water right could only be transferred to Moore if the description of the property in the grant deed included the language originally included in the amended escrow instructions.
For the first time on appeal plaintiff raises two other arguments. He asserts that Sanders misled the trial court by asserting only that defendants have no “interest” in the water right while failing to assert that they lack “ownership” of the right, and the usage report Sanders attached as an exhibit to her declaration is insufficient to show Moore's ownership because it does not demonstrate that water right S002593 was legally transferred to Moore. He has forfeited those arguments by failing to raise them in the trial court. (DiCola, supra, 158 Cal.App.4th at p. 676.)
G. Second Cause of Action: Declaratory Relief
Similarly, plaintiff contends that his second cause of action for declaratory relief survives summary judgment because there is a triable issue of fact as to whether defendants still own the water right.
A declaratory relief cause of action requires an actual controversy involving questions relating to the plaintiff's rights or obligations. (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909.) As we discussed with respect to plaintiff's quiet title cause of action, defendants make no claim as to the ownership of the water right plaintiff claims he owns. Accordingly, we agree with defendants that there is no actual controversy between the parties. The trial court properly granted Francis Realty's motion for summary judgment as to this cause of action.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to defendants. (Cal. Rules of Court, rule 8.278(a) & (b).)
We concur: Robie, Acting P. J., Murray, J.