Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. CV255085. Arthur E. Wallace, Judge.
Klein, Denatale, Goldner, Cooper, Rosenlieb & Kimball, Steven J. Lee, Catherine E. Bennett and T. Todd England, for Plaintiffs and Respondents.
John Fu and Joshua G. Wilson, for Defendant and Appellant
OPINION
Ardaiz, P.J.
INTRODUCTION
Guadalupe M. Rodriguez (“Rodriguez” or “Guadalupe the Daughter”) shares the same maiden name as her mother, Guadalupe M. Reyes (“Mrs. Reyes” or “Guadalupe the Mother”). Rodriguez appeals from a determination, after a bench trial, that she was not the “Guadalupe M. Reyes” that had title to certain parcels of property. For the following reasons, we affirm.
Like the parties in this case, we will refer to appellant as “Guadalupe the Daughter” and to her mother as “Guadalupe the Mother” to avoid confusion. No disrespect to any person is intended.
STATEMENT OF THE CASE
On March 23, 2005, plaintiffs, Ernesto Reyes, Jr., and his wife, Ana M. Torres-Reyes, filed a complaint against Rodriguez in the Kern County Superior Court alleging three causes of action: 1) Quiet Title – Legal Title; 2) Quiet Title – Adverse Possession; and 3) Conversion.
Mrs. Reyes was originally a plaintiff but by the time of the bench trial, she had been dropped as a named party. She also did not testify at the trial. There was testimony that Mrs. Reyes was suffering from memory loss.
Rodriguez demurred and moved to strike. On July 19, 2005, the trial court sustained the demurrer as to the third cause of action and overruled the demurrer as to the first and second causes of action. The motion to strike was rendered moot. The court granted plaintiffs 10 days leave to amend. Plaintiffs did not amend, and the third cause of action was therefore dismissed.
On September 15, 2005, Rodriguez answered. She also filed a cross-complaint alleging three causes of action: 1) Quiet Title, 2) Money Had and Received, and 3) Ouster. In her prayer for relief, Rodriguez sought “possession of the subject property” among other remedies. Plaintiffs answered on October 20, 2005.
On January 20, 2006, plaintiffs moved the trial court to bifurcate the separate equitable claims of quiet title in the complaint and cross-complaint and the claim of adverse possession pursuant to Code of Civil Procedure sections 598 and 1048 and case law. In her opposition, Rodriguez asserted that her quiet title claim was legal in nature because she was recently ousted and because she is presently suing to recover possession of the property.
The trial court granted the motion to bifurcate without discussing the basis for the order.
A bench trial was held on March 6 through 8, 2006 on the “entire” quiet title cause of action. All five Reyes children testified as well as a long-time family friend and various governmental officials and experts.
After the trial, Rodriguez filed a letter brief relating to the meanings of the terms “unmarried” and “single” which she had raised for the first time in closing argument. Rodriguez contended that the use of these terms in the Grant Deeds supported her theory that she was the named grantee in the Grant Deeds. She also filed a further letter brief seeking to reopen her case-in-chief to include this evidence pursuant to “California Code of Civil Procedure § 607” based upon this evidence. This request was denied.
Subsequently, the trial court issued a decision that the evidence presented at trial showed that Guadalupe the Mother was the grantee, “Guadalupe M. Reyes, a single woman,” as stated in the various deeds.
Rodriguez requested a statement of decision, and the trial court filed a statement of decision on May 11, 2006. Judgment was entered on May 11, 2006, for plaintiffs on the quiet title cause of action and against defendant Rodriguez on her quiet title cause of action.
Notice of entry of judgment was mailed on May 18, 2006. Rodriguez timely filed her notice of appeal on July 17, 2006.
On March 6, 2007, plaintiffs sold the real property. On March 16, 2007, plaintiffs filed their motion to dismiss the appeal as moot on the ground that the property had been sold. On March 26, Rodriguez opposed the motion on the grounds that the appeal was not moot despite the sale of the property because, among other things, she would have causes of action against non-bona-fide third party purchasers and for recovery of the proceeds. On April 13, 2007, this court issued an order deferring a decision on the motion to dismiss. In their Respondents’ Brief, plaintiffs have requested that this court issue a decision on the merits of the appeal and not on the motion to dismiss. Thus, we will deny the motion to dismiss.
FACTS
Mrs. Reyes was married to Ernesto Reyes, Sr., and divorced him in September 1976. They had five children: Jose, Isabel, Dolores, Rodriguez, and Ernesto, Jr.
Mrs. Reyes did seasonal agricultural work or worked in a restaurant to support her family. All of the children from time to time helped their mother pay her bills by contributing to the general family fund or paying bills directly.
Beginning in 1980 or 1981, the boyfriend of Mrs. Reyes, Pete Hernandez, moved in to live with her. In November of 1983, John R. and Frances L. Lisenbee executed a Grant Deed conveying the front parcel at 210 Wiseman to “Pete Hernandez, an unmarried man, and Guadalupe M. Reyes, a single woman, each to an undivided 1/2 interest.” The property at 210 Wiseman consisted of a front parcel and a back parcel.
Guadalupe M. Reyes and Pete Hernandez borrowed the purchase money from First Federal Savings and Loan Association of Grand Forks Michigan. Guadalupe the Daughter and Pete Hernandez executed the Note and a Deed of Trust. Plaintiffs alleged that “Rodriguez signed the loan documents for and on behalf of her mother.”
By an instrument dated December 12, 1984, Pete Hernandez, “an unmarried man,” quitclaimed the front parcel to “Guadalupe M. Reyes, a single woman.” On March 29, 1986, John R. Lisenbee and Frances L. Lisenbee quitclaimed the back parcel to “Guadalupe M. Reyes, a single woman.” Thus, as of March 29, 1986, the real property at 210 Wiseman belonged to “Guadalupe M. Reyes, a single woman.”
The Reyes family lived in the subject property for various lengths of time. Mrs. Reyes lived in the property from 1983 to 1998. Jose lived in the property in the late 1980s. Isabel never lived in the property. Dolores lived in the property until 1984 when she married. Likewise, Rodriguez lived in the property until she married in 1986. Ernesto lived in the property from 1983 to 1993, from 1995 until late 1998 or early 1999, and then with his wife, Ana, from December 1999 until March 6, 2007.
A fire destroyed the house on the subject property in July 1999. After the fire, Mrs. Reyes, Isabel (purportedly acting on behalf of Rodriguez), and Ernesto met with the contractor and architect to design and rebuild the house. After the house was rebuilt, Ernesto and Ana moved into the house.
From 1983 until March 23, 2005, Mrs. Reyes, Ernesto and/or Ana acted as if they had title to the property at 210 Wiseman. Mrs. Reyes borrowed against the property and executed deeds of trust or amended notes for deeds of trust in 1986, 1987, and 1988. She eventually deeded the front parcel to her son, Ernesto, in 1996. Ernesto and Ana paid property taxes on both parcels. After the fire in 1999, because the insurance proceeds were insufficient to rebuild the house completely, they took out a loan to complete the construction. In 2000, Ernesto and Ana also built a pool on the part of the property that was primarily the back parcel. In November 28, 2000, Ernesto granted the front parcel to himself and Ana, husband and wife, as joint tenants.
All of Mrs. Reyes’s children made mortgage payments from time to time for their mother. There was testimony from different family members and from a long-time family friend that the property at 210 Wiseman was referred to as “Mom’s house.” John Cortez, Jr., the husband of Dolores, testified that for years he made all repairs to the house at 210 Wiseman when Mrs. Reyes asked him. It was his belief that Mrs. Reyes, and not Rodriguez, had purchased the house.
In 1998, Mrs. Reyes had moved out of the property at 210 Wiseman into a trailer at 212 Wiseman, which Isabel owned. Because of a family dispute over whether Mrs. Reyes would pay the taxes on the trailer, Isabel subsequently sued her mother for unlawful detainer and had a sheriff evict her mother from the property.
Shortly thereafter, on March 23, 2003, Rodriguez recorded a Grant Deed in which she stated that she acquired title to the back parcel of 210 Wiseman as Guadalupe M. Reyes, and she transferred title to the back parcel to “GuadaLupe [sic] M. Rodriguez.”
On May 12, 2004, Rodriguez filed an unlawful detainer action against Ernesto and Ana. In her unlawful detainer action, she stated that Ernesto and Ana had moved into the subject property in July 1999 without her permission. Rodriguez used the same service to prepare her unlawful detainer complaint as Isabel used for her unlawful detainer action against her mother. Ernesto and Ana demurred to the unlawful detainer complaint which the court granted on June 14, 2004. Rodriguez dismissed her unlawful detainer action without prejudice on June 24, 2004.
DISCUSSION
I.
Standard of Review
“Generally, appellate courts independently review questions of law and apply the substantial evidence standard to a superior court’s findings of fact.” (SFPP, L.P. v. Burlington Northern & Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 461-462, fn. omitted.) “The substantial evidence standard applies to both express and implied findings of fact made by the superior court in its statement of decision rendered after a nonjury trial.” (Id. at p. 462.) Substantial evidence is relevant evidence that a reasonable person might accept as adequate to support a conclusion, or evidence of ponderable legal significance that is reasonable in nature, credible, and of solid value. (Auburn Woods I Homeowners Assn. v. Fair Employment & Housing Com. (2004) 121 Cal.App.4th 1578, 1583; Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1632-1633.) We review a trial court’s ruling on the admissibility of evidence, including one that turns on the hearsay nature of the evidence, for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 725.)
II.
A.
Right to Jury Trial
On appeal, Rodriguez contends that we should reverse the judgment because she was wrongfully denied her right to a jury trial on her quiet title action.
The right to a jury trial is protected under the California Constitution. (Cal. Const., art. I, § 7; Dills v. Delira Corp. (1956) 145 Cal.App.2d 124, 128 (Dills).) However, “[t]he constitutional provision for a jury trial grants that right only in actions based upon the common law of 1850, in the event the cause of action, or one essentially similar, existed.” (Dills, 145 Cal.App.2d at p. 128.) “In determining whether the action was one triable by a jury at common law, the court is not bound by the form of the action but rather by the nature of the rights involved and the facts of the particular case--the gist of the action.” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1237-1238 [internal quotation marks omitted] (Nwosu).)
This case involved two quiet title actions. A quiet title action where there is no issue as to right of possession is an action in equity. (Thomson v. Thomson (1936) 7 Cal.2d 671, 681-682 (Thomson); Caira v. Offner (2005) 126 Cal.App.4th 12, 24-25; Nwosu, 122 Cal.App.4th at p. 1241). However, where the quiet title action is in the nature of an ejectment action that seeks to recover possession, the action is triable by jury. (Thomson, 7 Cal.2d at p. 681.)
Here, although Rodriguez was not recently ousted from the subject property, her cross-complaint sought to recover possession of the property. The gist of her complaint is therefore similar to an ejectment action seeking recovery of the property. Rodriguez is thus ordinarily entitled to a jury trial on her action. In this case, however, Rodriguez was not entitled to a jury trial on her quiet title action because of the procedural posture of the case and the resulting determination on the equitable issues.
The procedural posture of this case is identical to that of Thomson. In Thomson, the plaintiff, who was in possession of the real property, sued to quiet title against the defendant. Defendant, who averred that he was ousted two and a half years before the case, cross-complained to eject plaintiff and recover possession. (Thomson, 7 Cal.2d at pp. 681-682.) According to the California Supreme Court, “[i]n such an action the plaintiff is entitled to have the equitable issues tried by the court without a jury, and the defendant is entitled to have the legal issues submitted to a jury.” (Id. at p. 681.) Equitable issues are tried first because this may obviate the necessity for jury trial on the legal issues. (Raedeke v. Gibraltar Sav. & Loan Assn. (1974) 10 Cal.3d 665, 671 (Raedeke); Nwosu, 122 Cal.App.4th at pp. 1238 & 1244.) As stated by the Supreme Court, “[i]t is well established that, in a case involving both legal and equitable issues, the trial court may proceed to try the equitable issues first, without a jury (or, as here, with an advisory jury), and that if the court’s determination of those issues is also dispositive of the legal issues, nothing further remains to be tried by a jury.” (Raedeke, 10 Cal.3d at p. 671.)
Here, the trial court had the right to try the equitable issues related to plaintiffs’ quiet title action first. The court’s determination of those issues — that Guadalupe the Mother was the grantee — was dispositive of the legal issues. Thus, there was nothing left to be tried by a jury. Therefore, we reject Rodriguez’s claim that she was wrongfully denied her demand for a jury trial.
B.
Judicial Notice
Rodriguez next contends that we should reverse the judgment because it was not logically consistent with a “judicially noticed” fact that “a lender is not going to make a real estate loan to a party and take a trust deed back from the party to secure the loan unless that party has title to the property.”
During trial, Rodriguez had proposed to call two expert witnesses. Plaintiffs objected. The court asked Rodriguez for an offer of proof. Rodriguez stated that she was going to call one expert witness to testify as to “whether or not the lender would loan money to a person who is not the owner of the property and without any agency agreement.” The trial court commented: “Well, I think it would be fairly easy for the Court, with counsel’s blessing, to take judicial notice of the fact that a lender is not going to make a real estate loan to a party and take a trust deed back from that party to secure the loan unless that party has title to the property.” Rodriguez agreed to that proposal. However, plaintiffs agreed only to stipulate to the proposition that “a lender does not knowingly loan money to party A when party B is signing the document.”
Thus, based upon our reading of the record, there was no judicially noticed fact. Rather, there was a stipulated fact that a lender does not knowingly loan money to a party when a different party signs the documents. Nevertheless, that stipulated fact, whether or not it was judicially noticed, does not preclude the trial court’s determination that Guadalupe the Mother was the grantee and had title to the property. For example, Guadalupe the Mother could still be the grantee even though Guadalupe the Daughter signed the documents because: (1) the daughter was signing on behalf of the mother or (2) the lender did not know that it was the daughter who signed the documents. These two possibilities are not precluded by the record. We therefore reject Rodriguez’s argument that the trial court’s determination that the mother was the grantee was erroneous based upon this fact.
C.
Admissibility of Evidence
Rodriguez next contends that judgment should be reversed because the trial court erred in admitting the testimonies of Dolores Cortez, John Cortez, and Ernesto Reyes that Guadalupe the Mother purchased the subject property. We review Rodriguez’s objection to each witness’s testimony separately. However, we review Rodriguez’s contentions under the same framework. Specifically, we review the trial court’s rulings admitting the testimony for abuse of discretion. (People v. Waidla, supra, 22 Cal.4th at p. 725.) Moreover, to appeal a ruling on the admissibility of evidence, the appellant must preserve the issue for appeal by a timely and specific objection in the trial court. (Evid. Code, § 353; People v. Szeto (1981) 29 Cal.3d 20, 32 [same].)
1.
Dolores Cortez
On direct examination, Dolores Cortez, one of Mrs. Reyes’s children, was examined and testified as follows:
“Q. Have you ever heard your sister [Rodriguez] refer to the house at 210 Wiseman as your mother’s house?”
“A. Yes.
“Q. Was it while your mom was living there or since that time? Like when your mom moved into the trailer, she still called 210 Wiseman Mom’s house?
“A. Yes. We all did.”
Rodriguez did not object to any of this testimony at the time it was given.
On cross-examination, Dolores admitted that she was not present at the time the loan was obtained to purchase the subject property. She was then asked “Then how do you know your mom was the owner?” She responded “We all thought it was my mom’s house.”
At this point, Rodriguez moved “to strike this witness’ testimony with respect to the ownership as to foundation.” The trial court overruled the motion, stating that the objection would go to the weight of the evidence.
On appeal, Rodriguez objects to Dolores’s entire testimony on the basis that Dolores was not personally present at the time the various documents were signed. However, Dolores’s testimony on direct examination that the subject property was called her mother’s house is based upon her personal knowledge that she heard her sister call the property “mother’s house” and that all of the Reyes children called the house “Mom’s house.” Thus, there was no foundational issue with Dolores’s direct testimony since that testimony was based upon her personal knowledge.
Dolores’s testimony on cross-examination that she knew that her mom was the owner of the property based upon the fact they all thought it was her mom’s house is likewise not subject to foundational issues because it is based upon Dolores’s personal knowledge of what she thought and what she understood that the other Reyes children thought about the house. Whether or not Dolores’s testimony was entitled to any weight was left to the trial court.
Thus, we conclude that the trial court did not abuse its discretion in admitting the testimony of Dolores Cortez.
2.
John Cortez
John Cortez, the husband of Dolores, testified on direct examination that he had “done all the repairs to that house [¶] … [¶] since my mother-in-law purchased the house, her and Pete, in ’83.” An objection was made on the basis of lack of foundation at this point, and overruled.
John was then cross-examined as follows:
“Q. Why do you testify that your mother-in-law purchased the property?”
“A. Why am I testifying? Because it’s her house.” [¶ … ¶]
“Q. Did you hear from anybody that she and Pete was [sic] the purchaser?”
“A. All her brothers and sisters knew that. They all said it.”
At this point, Rodriguez moved “to strike this person’s testimony because of hearsay information as to foundation.” This motion was denied on the basis, among others, that the testimony was admissible under the hearsay exception for family history under Evidence Code, sections 1311 and 1313.
On appeal, Rodriguez contends that John’s entire testimony was erroneously admitted because it was based upon inadmissible hearsay. Rodriguez contends that the family history exception does not apply to testimony about the ownership of property.
Evidence Code section 1311, subdivision (a) provides, in relevant part, “evidence of a statement concerning the birth, marriage, divorce, death, parent and child relationship, race, ancestry, relationship by blood or marriage, or other similar fact of the family history of a person other than the declarant is not made inadmissible by the hearsay rule if … [t]he declarant was related to the other by blood or marriage.…” Evidence Code section 1313 similarly provides that “[e]vidence of reputation among members of a family is not made inadmissible by the hearsay rule if the reputation concerns the birth, marriage, divorce, death, parent and child relationship, race, ancestry, relationship by blood or marriage, or other similar fact of the family history of a member of the family by blood or marriage.”
We disagree that ownership of property is not “a similar fact of the family history.” In Estate of Berg (1964) 225 Cal.App.2d 423, 431, the court held that the prior place of residence is the kind of fact of the family history which falls within the family history exception to the hearsay rule. According to the Berg court, “[t]here is no definite or formal limitation as to the kind of fact that may be the subject of the statement. The general inquiry ... should be: Were the circumstances named in the statement such a marked item in the ordinary family history and so interesting to the family in common that statements about them in the family would be likely to be based on fairly accurate knowledge and to be sincerely uttered?” (Estate of Berg, supra, 225 Cal.App.2d at p. 432, citing 5 Wigmore on Evidence (3d ed. 1940) § 1502 [quotation marks omitted].)
Here, the trial court would not have abused its discretion if it determined that the statement that Mrs. Reyes and Pete Hernandez purchased the property is a “marked item in the family history” and “interesting to the family in common.” Moreover, John testified that Rodriguez also made this statement, and that testimony is admissible as an admission of a party. (Evid. Code, § 1220.) Finally, his testimony showed indicia of trustworthiness because it was corroborated by the testimony of other witnesses at trial.
Therefore, we conclude that the trial court did not abuse its discretion in admitting the testimony of John Cortez.
3.
Ernesto Reyes
Rodriguez also objected to Ernesto Reyes’s testimony that Guadalupe the Mother purchased the property based upon the following cross-examination:
“Q. In fact, I believe you said that in your deposition you didn’t even feel the need to discuss with her with respect to your and your mother’s getting of any loans, using the property as collateral; is that correct?
“A. That’s correct.
“Q. Because you didn’t feel that there was any need to discuss ownership with her.
“A. It was assumed that it was just under my mom’s name.”
This was not followed by any objection or a motion to strike Ernesto’s testimony on ownership of the property. Moreover, Rodriguez never objected to Ernesto’s testimony at trial based upon this testimony. Instead, Rodriguez raises it for the first time on appeal. Because Rodriguez did not raise the objection before the trial court, we decline to review that issue in this case. (Evid. Code, § 353 [“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion .…”])
We note that it is also unclear exactly what is the basis for Rodriguez’s objection to Ernesto’s testimony as “assumption” is not a proper basis for objection. The basis for the objection appears to be Ernesto’s lack of personal knowledge because he was not present at the signing of the documents. However, as discussed previously with respect to Dolores’s testimony, that lack of personal knowledge about the signing of the documents does not preclude lack of personal knowledge about the statements and beliefs of family members.
D.
Reopening Case
Finally, Rodriguez contends that the trial court erred in denying her motion to reopen her case-in-chief, under Code of Civil Procedure section 607 or its bench trial equivalent, to hear further testimony on the significance of the distinction between the terms “single” and “unmarried” as used in deeds and loan documents.
During closing arguments, Rodriguez raised the issue of the use of the term “single woman” in describing Guadalupe M. Reyes in the Grant Deeds, as opposed to the term “unmarried woman.” She argued that a “single” woman was a person who was never married, whereas an “unmarried” woman would refer to a person who was previously married, but was not married. According to Rodriguez, this “most critical point” proved that the Guadalupe M. Reyes referenced in the documents referred to her since she was never married at the time of the Grant Deeds whereas her mother was married but divorced at that time.
The trial court offered Rodriguez the opportunity to submit a short brief on the issue that would point to any California case authority on this issue. After the trial, Rodriguez filed a brief relating to the meanings of the terms “unmarried” and “single” but did not cite any authority except for two New York state cases. She also filed a further briefing seeking to reopen her case-in-chief to include this evidence pursuant to “California Code of Civil Procedure § 607” based upon this evidence. The trial court refused her request. The trial court also noted that it would not have changed its determination that Guadalupe the Mother was the grantee even if Rodriguez had brought in an industry expert to testify about the customary and usual practice of the use of those terms.
In its statement of decision, the trial court further explained its ruling:
“The Court did not find that the designation of Pete Hernandez as an ‘unmarried’ man and the designation of Guadalupe M. Rodriguez [sic] as a ‘single’ woman in the same deed shows [that] the daughter was the purchaser. There is no legal distinction. Further, there was no testimony at trial that Pete Hernandez was divorced. The Court finds that Mrs. Reyes is referred to as a ‘single woman’ in the 1996 Gift Deed (Plaintiffs’ Exhibit 27).”
We review the court’s decision refusing to reopen the case under an abuse of discretion standard. (Howard Contracting, Inc. v. G.A. MacDonald Construction Co. (1998) 71 Cal.App.4th 38, 49.)
Our review of the record indicates that there was no abuse of discretion. First, the record does not demonstrate that, under California law, there is a legal distinction between “single” and “unmarried.” Second, the fact that Mrs. Reyes was referred to as a “single woman” in a gift deed in 1996, which was after Rodriguez was married, is substantial evidence supporting the trial court’s determination that Mrs. Reyes was the grantee of the Grant Deeds. Thus, we reject Rodriguez’s contention on this issue.
DISPOSITION
The judgment is affirmed. Costs to respondent.
WE CONCUR: Harris, J., Gomes, J.