NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

McDONALD, J.

In June 2013 plaintiffs Elizabeth Vaca et al. (Plaintiffs) filed a wrongful death action (the wrongful death lawsuit) against Michael Vilkin (Michael), the husband of defendant Tamara Vilkin (Tamara). At the time the wrongful death lawsuit was filed, Michael and Tamara were the record owners, as joint tenants, of certain real property in Encinitas, California (the Property). However, three weeks after Plaintiffs filed the wrongful death lawsuit, Michael and Tamara recorded a quitclaim deed in which Michael quitclaimed his interest in the property to Tamara.

Plaintiffs filed the present action to set aside Michael's conveyance to Tamara as a fraudulent conveyance, and seeking to impose a constructive trust on the Property with Plaintiffs as beneficiaries and Tamara and Michael as involuntary trustees. After a bench trial, the court entered a judgment that (1) set aside the quitclaim deed and (2) ordered the Property be held in constructive trust for the benefit of Plaintiffs until there was a judgment in the wrongful death lawsuit. On appeal, Tamara challenges only that part of the judgment ordering the Property be held in constructive trust for the benefit of Plaintiffs until there is a judgment in the wrongful death lawsuit.

LEGAL FRAMEWORK: CONSTRUCTIVE TRUSTS

A constructive trust is an equitable remedy to compel the transfer of property by one who is not justly entitled to it to one who is. (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 457.) A constructive trust may only be imposed when three conditions are met: the existence of a res, the plaintiff's right to the res, and the defendant's acquisition of the res by some wrongful act. (Campbell v. Superior Court (2005) 132 Cal.App.4th 904, 920; Communist Party v. 522 Valencia, Inc. (1995) 35 Cal.App.4th 980, 990.) Importantly, "[a] constructive trust is a remedy used by a court of equity to compel a person who has property to which he or she is not justly entitled to transfer it to the person entitled to it. The trust is passive, the only duty being to convey the property." (13 Witkin, Summary of Cal. Law (10th ed. 2005) Trusts, § 319, p. 892; accord, Pacific Lumber Co. v. Superior Court (1990) 226 Cal.App.3d 371, 378.)

When the elements necessary for a constructive trust have been established, the "propriety of granting equitable relief of imposition of a constructive trust rests within the sound discretion of the trial court." (GHK Associates v. Mayer Group, Inc. (1990) 224 Cal.App.3d 856, 877-878.) However, the discretion is not an arbitrary one or one based in whimsy, but "should be exercised in accord with the principles and precedents of equity jurisprudence." (Hicks v. Clayton (1977) 67 Cal.App.3d 251, 265.)

ANALYSIS

The parties appear to agree on appeal, and the trial court's judgment impliedly found, that Plaintiffs had not yet obtained a favorable and final judgment in the underlying wrongful death lawsuit as of the date the court entered its judgment ordering Tamara and Michael to hold the Property in constructive trust for the benefit of Plaintiffs.1 This fact compels us to conclude the court erred in imposing a constructive trust on the property because at least one essential element necessary to imposition of a constructive trust—Plaintiffs' right to the res and Tamara's corresponding duty to transfer it to Plaintiffs—was not then present and (arguably) might never be established.2

Although Plaintiffs cite cases on appeal that generically outline the principles for imposition of a constructive trust, they cite no authority approving imposition of a constructive trust as a form of prejudgment attachment of real property, as was done in this case. We are satisfied the requirements and protections applicable to prejudgment levies, such as writs of attachment or lis pendens, may not be circumvented by resort to the equitable remedy of imposition of a constructive trust. For example, the Property could not be attached in advance of judgment (because, among other things, it is not based on a commercial claim arising from a contract, see Code Civ. Proc., § 483.010), and this would bar the provisional remedy the judgment below effectively granted to Plaintiffs.3 (See generally VFS Financing, Inc. v. CHF Express, LLC (C.D.Cal. 2009) 620 F.Supp.2d 1092, 1095 [Attachment is provisional remedy to aid in the collection of a money demand by seizure of property in advance of trial and judgment and "`is a harsh remedy because it causes the defendant to lose control of his property before the plaintiff's claim is adjudicated.' [Citation.] . . . Since California's attachment law is purely statutory, it must be strictly construed."].) Moreover, even assuming Plaintiffs could have overcome the numerous obstacles to obtaining a right to attach order, that order would have been subject to the additional requirement of an undertaking to protect Tamara in the event the attachment was later determined to be wrongful (see Code Civ. Proc., § 489.210 et seq.), which the judgment below did not include.

The remedy sought and obtained by Plaintiffs here—a constructive trust on the Property for Plaintiffs' benefit "until and if there is a judgment [in the wrongful death lawsuit]"—provided Plaintiffs all of the practical benefits of a prejudgment attachment or lis pendens without the procedural protections afforded by either statutory scheme. Because Plaintiffs have cited no authority suggesting those provisions may be circumvented by imposition of constructive trust, we conclude the trial court's judgment, insofar as it purported to impose a constructive trust on the Property for Plaintiffs' benefit until a judgment was entered in the wrongful death lawsuit, must be reversed.

DISPOSITION

The judgment, insofar as it ordered a constructive trust imposed on the Property for Plaintiffs' benefit until a judgment was entered in the wrongful death lawsuit, is reversed; in all other respects, the judgment is affirmed. Tamara shall recover costs on appeal.

McCONNELL, P. J. and HUFFMAN, J., concurs.