WOODS, Acting P. J.
Appellant Nancy Ng ("Ng") sued respondent Julius Kim Lorenzo ("Lorenzo"), her former romantic partner and the father of her child, alleging that she and Lorenzo had a financial arrangement to start a family, but Lorenzo deceived her into believing that their relationship was exclusive when in fact it was not, and that this lead to the dissolution of the relationship and loss of her investment in the family. Lorenzo filed a counterclaim for damages based on Ng's alleged breach of a trust that the two had formed during their relationship. The two actions, along with Ng's subsequent unlawful detainer action against Lorenzo, were consolidated for a bench trial. The trial court entered a judgment of dismissal, ordering that neither Ng nor Lorenzo take anything on their respective complaints. Ng's subsequent motion to vacate the judgment was denied. She appeals from both the judgment against her and the denial of her motion to vacate. As we shall explain, substantial evidence supports the trial court's factual determinations and, accordingly, we affirm.
Ng and Lorenzo met in March 2003 and entered into a romantic relationship shortly afterward. During the course of the relationship, their finances became heavily intertwined. For example, in September 2003, Ng and Lorenzo made arrangements to live together in a house owned by Ng's sister in Pasadena (the "Pasadena property") and share expenses related to purchasing and maintaining the property, including mortgage payments. They then formed the Ng Revocable Living Trust to manage the Pasadena property, for which Lorenzo served as the grantor and co-trustee and Ng as the managing trustee. In March 2004, the two agreed that Ng would invest money to improve another property in Burbank owned by Lorenzo (the "Burbank property"), and that they would subsequently sell the house and split the profits. Also, in April 2004, Ng gave birth to Lorenzo's child, for whom Lorenzo was to be partially responsible for supporting.
However, Ng ended her relationship with Lorenzo in June 2004 after he called her from jail in Las Vegas, Nevada, asking for money for bail and attorney's fees. She later learned that he had gone to Las Vegas with another girlfriend and he had been arrested. Ng then sued Lorenzo in September 2006 to recover money she had invested during the course of their relationship, claiming that the two had entered into an oral contract to start a family together, but that he had breached the contract with his infidelity. She also alleged that Lorenzo failed to keep up with his share of the mortgage payments on the Pasadena property; that she had invested a substantial sum of money in the Burbank property, but Lorenzo had pocketed most of the money and never sold the house; and that she had made a number of personal loans to Lorenzo that had never been repaid. She also filed an unlawful detainer action against Lorenzo to evict him from the Pasadena property.
Lorenzo filed a counterclaim against Ng, alleging that they had agreed to place the Pasadena property in the Ng Revocable Living Trust for the benefit of his children, but that she had breached her fiduciary duty as a trustee by misusing the Pasadena property for her own benefit. He further alleged that Ng and her sister had conspired to defraud him out of his fair share in the Pasadena property, for which he claimed to have made all necessary mortgage payments.
The trial court heard evidence from the parties in trial which took place in the spring of 2009. After receiving post-trial briefs from the parties, the court took the matter under submission and issued a statement of decision. In the statement of decision, the court observed that "[t]he overwhelming problem with each party's causes of action is that they rest primarily on the credibility of that party. In this case, neither party has any credibility, having each been impeached and caught in multiple inconsistencies and untruths." In consideration of Ng and Lorenzo's romantic relationship, the court concluded that any all payments from either party to the other had been in the form of gifts, and directed Ng to prepare a proposed judgment ordering that neither party take anything from their complaint. Ng prepared a conforming judgment and served it on Lorenzo. The court signed and filed the judgment.
On September 30, 2009, Ng filed a motion under Code of Civil Procedure section 663
Ng appealed from both the judgment and denial of her motion to vacate.
Ng appeals from both the judgment against her and the denial of her motion to vacate. Ng argues that the trial court erred in finding that all payments made to Lorenzo were gifts. In the alternative, Ng argues that the gifts were obtained out of undue influence, fraud and or as a result of a promise of marriage.
Ng contends the trial court's order denying the motion to vacate the judgment was erroneous. A judgment or decree based on a decision of the court may on motion of the aggrieved party, may be set aside or vacated and another and different judgment entered when there was an incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts. (Code Civ. Proc., § 663.) A presumption exists in favor of validity of the trial court's order on motion to vacate judgment. (Moklofsky v. Moklofsky (1947) 79 Cal.App.2d 259, 264.) "All intendments are in favor of the judgment of vacation made by the court, and, in absence of any showing to the contrary, it will be presumed that the court made the order in the manner and under such circumstances as justified the subsequent vacation and the final judgment." (Glass v. Glass (1906) 4 Cal.App. 604, 609.) Since this appeal is from an order made pursuant to the provisions of section 663 of the Code of Civil Procedure, we are confined in our review to a determination of whether the conclusions of law and judgment are consistent with and supported by the findings of fact. (Newbury v. Civil Serv. Comm'n of City of Los Angeles (1940) 42 Cal.App.2d 258, 259.)
Here Ng argues that she entered into a contract with Lorenzo to loan him money during the course of their relationship. She argues that because the trial court found Lorenzo "received a tremendous amount of financial assistance in the form of free rent, improvements to his Burbank property, and financial help with respect to his legal issues" she is entitled to repayment of these funds under theories of unjust enrichment and breach of contract. The record shows, however, that there was no credible documentation or conduct to prove any loan agreement. Ng claims she testified she wrote the word "loan" on checks made out to Lorenzo. Ng also testified that she made contributions to Lorenzo with the intention that they were loans rather than gifts. The court clearly determined that neither party in the case was credible. We defer to the trier of fact on issues of credibility. (Oldham v. Kizer (1991) 235 Cal.App.3d 1046, 1065.) "[N]either conflicts in the evidence nor `testimony which is subject to justifiable suspicion . . . justif[ies] the reversal of a judgment, for it is the exclusive province of the [trier of fact] to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.' [Citations.]" (Ibid.) We find that the court appropriately deemed the financial contributions as gifts based on the romantic relationship of the parties and the lack of documentation indicating a loan agreement.
Ng additionally argues that the judgment should be reversed because Lorenzo did not meet his burden of proof in showing that money transferred to him was in the form of a gift. Pursuant to Civil Code section 1146: "A gift is a transfer of personal property, made voluntarily, and without consideration." The elements of a gift are "(1) competency of the donor to contract, (2) a voluntary intention on the part of the donor to make a gift, (3) delivery, either actual or symbolic, (4) acceptance, actual or imputed, (5) complete divestment in all control by the donor, and (6) lack of consideration." (Burkle v. Burkle (2006) 141 Cal.App.4th 1029, 1036, fn. 1.) The burden of proof that a gift was intended is on the purported donee. (Blonde v. Estate of Jenkins (1955) 131 Cal.App.2d 682, 685-686.)
The trial court properly found that all financial assistance given to Lorenzo was a gift. The trial court's findings of fact will only be overturned when there is no substantial evidence to support them. (Marriage of Max (1975) 14 Cal.3d 604, 614.) Ng argues that there was no evidence to indicate that she gave Lorenzo financial assistance as a gift. While the burden of proof rests on the purported donee, the court properly found that Lorenzo satisfied that burden. Ng and Lorenzo were in a romantic relationship and during this time she assisted him financially. There was no evidence that she asked for repayment prior to February 2006.
Next, Ng contends that even if she gave the money to Lorenzo in the form of a gift, the gifts were induced by undue influence and therefore Lorenzo is liable to Ng for the gifts or their value. Undue influence is statutorily defined as consisting of: (1) "the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him"; (2) "taking an unfair advantage of another's weakness of mind"; or (3) "taking grossly oppressive and unfair advantage of another's necessities or distress." (Civ. Code, § 1575.)
The record indicates that a confidential relationship existed between Ng and Lorenzo. However, "the existence of a confidential relationship between the parties to a transaction does not dictate the ultimate conclusion that a gift from one to the other was obtained by undue influence, even though it may give rise to a rebuttable presumption to that effect. [Citations.] Such a presumption is overcome by proof that the transaction was fair and free from undue influence. Whether the presumption has been overcome is a question exclusively for the trial court[.] [Citations.]" (Church of Merciful Saviour v. Volunteers of Am., Inc. (1960) 184 Cal.App.2d 851, 861.)
The trial court's determination, that the gift was not the result of undue influence, is supported by the evidence. As noted by the trial court, until February of 2006 Ng made no attempts to collect money she purportedly loaned over several years. While Ng may regret her decision, the record indicates that she chose to make these gifts out of her own free will throughout their relationship.
Ng further contends, however, the gifts are recoverable on the basis of fraud. A gift may be rescinded if it was induced by the recipient's fraudulent or material misrepresentation. (See Earl v. Saks & Co. (1951) 36 Cal.2d 602, 609; cf. e.g. Murdock v. Murdock (1920) 49 Cal.App. 775, 776-779, 786-787 [wife's gift of separate property rescinded where husband urged her to make gift to him in consideration of her "love and affection" while falsely representing that he had always been and would be sexually faithful to her during their marriage whereas, unbeknownst to wife, he actually engaged in adultery before and after the gift].) Here, Ng concedes that Lorenzo made no representations of fidelity. Therefore Lorenzo did not induce Ng to make any particular gift or enter into any transaction based on the basis of fidelity.
Moreover, Ng argues for recovery of these gifts under Civil Code section 1590. This code section provides: "Where either party to has contemplated marriage in this State makes a gift of money or property to the other on the basis or assumption that the marriage will take place, in the event that the donee refuses to enter into the marriage as contemplated or that is given up by mutual consent, the donor may recover such gift or such part of its value as may, under all the circumstances of the case, be found by a court or jury to be just." (Civ. Code, § 1590.) This argument fails because there is no evidence of a contemplated marriage between Ng and Lorenzo. At trial Ng stated "I was hoping that he will propose to me while I was pregnant." Therefore it was clear that no marriage was contemplated and therefore no gifts were given on the basis that Ng and Lorenzo would marry.
Next, Ng argues that she was entitled to relief in the form of unpaid rents. The trial court determined that Ng allowed Lorenzo to live rent free because of their romantic relationship. The court found "that there was no landlord-tenant relationship between Ng and Lorenzo and that the latter lived rent free because he was Ng's romantic partner and the father of their child." We find the court properly came to this conclusion. Lorenzo lived rent free from 2003 to 2006 and there is no documentation of any rental agreement.
In view of the foregoing, we cannot say the court erred in rejecting the motion to vacate or in entering the judgment.
The judgment and order are affirmed. Each side to bear its own costs on appeal.
We concur:
ZELON, J.
JACKSON, J.
