FEUER, J.
This action arises out of a family dispute over ownership of two properties. Plaintiff Edward L. Perez (Edward)
In his motion for summary judgment or, in the alternative, summary adjudication (summary judgment motion),
Given the complexity of the relationships between the family members and their interest in the properties, as well as the numerous pleadings filed in this case, we will discuss the background facts in detail below.
The properties at issue are rental properties located at 236 and 238 South Avenue 55 in Los Angeles (the properties). The following facts are undisputed: Hector Sr. and his wife Elba purchased the properties in 2003. Hector Sr. and Elba placed the properties in the Hector and Elba Garza 2003 Trust (Garza Trust). The trust transferred the properties to Heritage Property Management, LLC (Heritage) in February 2010. Hector Sr. and Elba co-owned and co-managed Heritage, and each had the power independently to bind the company in all matters in the ordinary course of business.
According to the Garza Trust, attached as Exhibit A to the Complaint, Hector Sr. and Elba had seven children. Four of their children have some involvement with the properties. Their oldest daughter Elma L. Garza Perez is the mother of Edward, their grandson. Their daughter Rosalinda Garza-Wiesand (Rosalinda) is married to Theodore, their son-in-law. Theodore asserts that two other sons of Hector Sr. and Elba, namely Hector Garza (Hector Jr.) and Arthur Garza (Arthur), have abused and deceived their mother Elba.
Hector Sr. died at the age of 80 on August 8, 2011, shortly after this lawsuit was filed.
On July 12, 2011 Edward filed a verified complaint against Theodore alleging causes of action for declaratory relief (first), quiet title (second), cancellation of instrument (third), and injunctive relief (fourth).
There are numerous transfers of the properties at issue in this action. The complaint alleges that on February 19, 2010, Hector Sr. and Elba, as trustees of the Garza Trust, transferred the properties to Heritage. Exhibits B and C to the complaint are grant deeds signed by Hector Sr. and Elba as trustees, dated February 12, 2010 and recorded on February 19, 2010, transferring the properties to Heritage.
The central transactions at issue in this case occurred in September and October of 2010. It is undisputed that on September 14, 2010, Edward signed two grant deeds transferring the properties back to Heritage. These deeds are attached as exhibits G and H to the complaint, and appear to be signed by Edward on September 14, 2010 and recorded on September 28, 2010. In dispute, however, are the deeds attached to the complaint as exhibits I and J, which are grant deeds signed by Hector Sr. transferring the properties back to Edward.
While Edward takes the position in his summary judgment motion that Hector Sr. transferred the properties back to Edward on September 14, 2010, the complaint alleges that Edward transferred the properties to Heritage on September 28, 2010, and that Hector Sr. transferred the properties back to Edward on October 6, 2010. Specifically, the complaint alleges: "Although, in or about September 28, 2010, at the request of [Hector Sr.], [Edward] transferred the [properties] to [Heritage], whose deeds were recorded as instrument Nos. 20101374361 and 20101374362, [Heritage] transferred the [properties] back to [Edward] on October 6, 2010, recording the transfers as instrument Nos. 20101427692 and 20101427693. Attached hereto as Exhibits `G', `H' `I', and `J' are true and correct copies of the deeds effectuating this transfer."
As we discuss below, Theodore argues that Edward should be bound by the allegation in the complaint that Hector Sr. transferred the properties to him on October 6, 2010, even though the deeds bear the typewritten date of September 14, 2010 and were recorded on October 6, 2010.
Another set of central documents in this case are the grant deeds signed in October 2010 purporting to transfer the properties from Heritage to Theodore. The complaint alleges that Elba transferred the properties from Heritage to herself by grant deeds dated October 4, 2010, and then transferred the properties to Theodore by grant deeds dated October 19, 2010. Exhibits K and L are the grant deeds purportedly signed by Elba on behalf of Heritage dated October 4, 2010 and October 19, 2010.
Edward subsequently amended the complaint to add Elba as a Doe defendant. Theodore, representing himself, filed his answer on August 18, 2011, attaching copies of the September 14, 2014 grant deeds (Exhibits I and J to the complaint), but with handwritten notes saying, "fraud" and "bad notary used white out," as well as other handwritten notes.
On March 28, 2012 Edward filed his summary judgment motion. In his motion, Edward contends that he met his burden of proof to establish that his title to the properties had priority over Theodore's claim of title because Edward held title at the time Elba purported to transfer the properties to Theodore. Specifically, Edward argues that Hector Sr. transferred the properties to Edward by grant deeds dated September 14, 2010 whereas the grant deeds signed by Elba purportedly transferring the properties to herself (and then later to Theodore) were signed on October 4, 2010. At issue in the motion is whether Hector Sr. transferred the properties to Edward on the September 14, 2010 date typewritten on the grant deeds, as contended by Edward, or on the October 6, 2010 date of recording, as contended by Theodore.
Edward filed a separate statement of undisputed facts in support of his motion, which contains the following facts in chronological order:
Edward filed declarations with supporting documentation by Hector Sr., Edward and his attorney Laura Shidlovitsky, as well as a request for judicial notice of various documents.
In Hector Sr.'s declaration, he states: "I caused [Heritage] to transfer the [properties] back to Edward on October 6, 2010. [¶] Specifically, I as the manager and authorized agent of [Heritage], executed two grant deeds dated October 6, 2010, in which [Heritage] as grantor granted the [properties] to Edward Perez. . . . [¶] The transfers of the [properties] to Edward were recorded with the Los Angeles County Recorder's Office. . . . Attached hereto as Exhibits "G" and "H" are true and correct copies of the deeds effectuating this transfer. [¶] I advised my wife and daughter, Rosalinda Garza-Wiesand, of the transfers of the [properties] to Edward Perez by [Heritage] shortly after the transfers were effectuated on October 6, 2010."
Theodore argues on appeal that Hector Sr.'s declaration should have defeated Edward's motion for summary judgment because it stated that the properties were transferred on October 6, 2010—after Elba's transfer of the properties. Edward argues that the deeds attached to Hector Sr.'s declaration are dated September 14, 2010, and relies on his own declaration. Edward states in his declaration: "Concurrently with my executing the deeds pursuant to which I transferred the [properties] back to Heritage . . ., my grandfather presented me with two grant deeds, also dated September 14, 2010, executed by him pursuant to which Heritage . . . transferred ownership of the [properties] back to me. I accepted these transfers and recorded the deeds with the Los Angeles County Recorder's Office on October 6, 2010. . . ."
The other grant deeds referenced in the undisputed statement of facts are also attached to the declarations of Edward, Hector Sr. or Shidlovitsky, but they are not in dispute.
Theodore filed an opposition to Edward's summary judgment motion on May 24, 2012, representing himself. In his opposition, Theodore argues that Edward "fraudulently
The opposition attaches as Exhibit 1 what is entitled an "Affidavit from Edward L. Perez" (Edward Affidavit), which purports to be a letter from Edward to his attorney Shidlovitsky. The letter states that "Exhibits G and I [September 14, 2010 grant deeds to Edward] were white[d] out and re-recorded again to place my name fraudulently as owner. . . . [¶] Theodore F. Wiesand is the legal owner. . . ." However, no authentication of the letter is provided to the court.
The opposition also attaches as Exhibits 7 and 8 copies of the September 14, 2010 grant deeds and October 6, 2010 recording pages with handwritten notes that say, "fraud," "8 days later? Why?" (referring to the October 6, 2010 recording stamp), and other handwritten markings.
On June 7, 2012 Theodore filed a "response to disputed and undisputed facts in opposition to sanctions," with supporting documents, which the court treated as a separate statement of disputed and undisputed facts. The response states that the facts asserted by Edward relating to the transfer of the properties from Hector Sr. to Edward are "disputed." However, the response only attaches as evidence multiple documents relating to the eviction of Edward and others from one of the properties, 236 South Avenue 55, and the September 14, 2010 deeds with handwritten markings and the October 6, 2010 recording date crossed out by hand. Theodore did not submit any evidence directly addressing the transfer dates other than the grant deeds.
On June 8, 2012 Edward filed objections to Theodore's evidence and a reply asserting that the opposition was procedurally defective and failed to present any admissible evidence showing a material issue of fact as to title to the properties.
At the hearing on June 15, 2012, the trial court granted summary adjudication as to Edward's first cause of action for declaratory relief, second cause of action to quiet title, and third cause of action for cancellation of instrument. The court sustained all of Edward's evidentiary objections to Theodore's evidence and granted Edward's request for judicial notice of the various grant deeds at issue and the Articles of Organization for Heritage, among other documents.
At the hearing on Edward's summary judgment motion, Rosalinda, who argued the matter on behalf of Theodore, asserted that Edward's documents were fraudulent, that his attorneys were lying, and that they were covering up evidence. The court pointed out that it was required "to decide the case on admissible evidence," and "[t]he plaintiffs have objected to the evidence that you presented because the evidence you presented was not in the proper form, it was not authenticated, and there was no foundation as to the legitimacy of any of the documents that you filed." The court explained that "any of the handwriting on these deeds that says fraud or all that other information, that's just not admissible evidence. . . . I have no recourse in this case but to go ahead and grant the motion for summary judgment that has been presented."
On August 13, 2012 the court filed a signed order granting summary adjudication as to Edward's first, second, and third causes of action. In its order, the court held that Theodore's "opposition is procedurally defective and is not considered by the court and it does not raise a triable issue of fact." Specifically, the court held that Theodore failed to provide a separate statement of undisputed facts that provides "sufficient grounds to grant the motion," citing to Code of Civil Procedure section 437c, subdivision (b)(3).
The court proceeded to address the opposition and separate statement on the merits, holding that Theodore "fails to raise a triable issue that the propert[ies were] transferred from Heritage to [Edward] before [Elba] signed the deed[s] transferring the propert[ies] from Heritage to herself and well before the propert[ies were] transferred from [Elba] to [Theodore]."
The court also held that Theodore's "evidence is inadmissible. . . . [Theodore] has not provided any foundation or authentication for the documents, particularly [Exhibit] 1, which purports to be an affidavit signed by [Edward], admitting that the transfers from [Hector Sr.] were erroneous. [Section] 437c[, subdivision] (d) requires that the evidence be admissible." The court pointed out that "handwritten alterations in the deeds attached to [Theodore]'s Opposition are likewise inadmissible. . . . [Theodore] wants the court to take judicial notice of the handwritten alterations, indicating `Fraud' and including a purported statement by [Edward]. There is no foundation for or authentication of the evidence."
The court then explained the basis of its grant of summary adjudication: "The undisputed facts establish that [Edward] has fee title via grant deeds from Heritage . . ., signed by Hector [Sr.] as agent. . . . The subsequent transfer of the propert[ies] by Heritage was ineffective. . . . [Theodore] failed to provide a triable issue of fact as to his claim of ownership of the Subject Property by way of a grant deed signed by Elba . . . in October 2010. [¶] . . . [¶] [Edward] has established a superior claim to the propert[ies] because [they were] conveyed to him before [they were] purportedly conveyed to [Theodore] by [Elba]. A deed is valid upon delivery of the deed to and acceptance by the grantee."
The court made findings of fact that Hector Sr. and Elba were management members of Heritage with the power to bind Heritage and that on September 14, 2010, Hector Sr. signed two grant deeds transferring the properties back to Edward. The court also found that Elba signed two deeds transferring the properties on behalf of Heritage to Elba, which she subsequently transferred to Theodore.
The court concluded: "The undisputed facts establish that by the time [Elba] purported to transfer the propert[ies] from Heritage to herself on 10/4/10, which is when she signed the grant deed, the propert[ies] had previously been transferred by Heritage to [Edward] on 9/14/10, Exhibits N and O. Heritage no longer owned the propert[ies] at the time of transfer to [Elba]."
On April 12, 2012 Theodore, representing himself, filed a "cross motion for judgment to quiet title or dismissal of entire action," which Edward and the court treated as a cross-motion for summary judgment.
The trial court denied the motion as untimely for failing to give the statutory notice of 75 days plus 5 days for mailing as required by section 437c, subdivision (a). The court noted that the 75-day "rule applies equally to self-represented persons," citing Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985. The trial court denied Edward's request to set an order to show cause re sanctions.
On April 23, 2012 Elba filed a cross-complaint for quiet title and damages for elder abuse against Rosalinda and Theodore, Edward, Hector Jr. and Heritage. The gravamen of her cross-complaint is that Rosalinda, Theodore, Edward and Hector Jr. took advantage of Hector Sr. and Elba in order to gain ownership and control of the properties. Elba alleges that Theodore and Edward have made claims to the properties based on deeds that were "procured through manipulation, coercion or undue influence."
On June 5, 2012 counsel for Elba and Edward stipulated that the trial court's ruling on Edward's summary judgment motion would not affect any of Elba's rights or remedies. As we discuss below, on appeal Theodore argues that, as a result of Elba's cross-complaint, she was an indispensable party to the summary judgment motion.
On September 7, 2012 the court dismissed Edward's fourth cause of action for injunctive relief without prejudice, as requested by Edward. On June 13, 2013 Edward and Elba filed a "Stipulation Re Judgment," stating that the parties had settled the action and that title to the properties would be quieted in favor of Edward in accordance with the summary adjudication of Edward's complaint against Theodore. The stipulation also states that the deeds dated April 26, 2010 transferring the properties from Heritage to Edward and the deeds dated September 14, 2010, transferring the properties from Edward to Heritage and back to Edward are "valid transfers." Further, the stipulation states that the October 4, 2010 deeds purporting to transfer the properties from Heritage to Elba and the October 19, 2010 deeds purporting to transfer the properties from Elba to Theodore were "invalid and void."
On July 1, 2013 the court entered judgment in favor of Edward, stating that Edward "was and now is the owner in fee simple absolute" of the properties, and that "[n]either Defendant Theodore Wiesand nor Defendant Elba P. Garza has any right, title, interest, estate or lien in or on" the properties. At Elba's request, the court dismissed her cross-complaint without prejudice.
In reviewing an order granting summary adjudication, "`we apply the same de novo standard of review that applies to an appeal from'" a summary judgment motion. (City of Glendale v. Marcus Cable Associates, LLC (2014) 231 Cal.App.4th 1359, 1376; see Powerine Oil Co., Inc. v. Superior Court (2005) 37 Cal.4th 377, 390.) Summary adjudication properly is granted if there is no question of material fact as to a cause of action, and the issues raised by the pleadings may be decided as a matter of law. (§ 437c, subds. (c), (f)(1); Biancalana v. T.D. Service Co. (2013) 56 Cal.4th 807, 813.)
"In moving for summary [adjudication], a `plaintiff . . . has met' his `burden of showing that there is no defense to a cause of action if' he `has proved each element of the cause of action entitling' him `to judgment on that cause of action. Once the plaintiff . . . has met that burden, the burden shifts to the defendant . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant . . . may not rely upon the mere allegations or denials' of his `pleadings to show that a triable issue of material fact exists but, instead,' must `set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.' (. . . § 437c, subd. (o) (1).)" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) "There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Id. at p. 850, fn. omitted; Travelers Property Casualty Co. of America v. Superior Court (2013) 215 Cal.App.4th 561, 574.)
On a summary judgment motion, the court "`"is limited to facts shown by the evidentiary materials submitted, as well as those admitted and uncontested in the pleadings."'" (AmerUS Life Ins. Co. v. Bank of America, N.A. (2006) 143 Cal.App.4th 631, 638; Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950, 962.) A party opposing a motion for summary judgment must rely on admissible evidence. (§ 437c, subd. (d); People ex rel. Trutanich v. Joseph (2012) 204 Cal.App.4th 1512, 1520.)
Theodore asserts four arguments for reversing the trial court's order granting summary adjudication. First, he argues that Edward should be bound by the allegation in his complaint that the properties were transferred on October 6, 2010. Second, he argues that Edward did not meet his burden on summary judgment because his own evidence showed that the properties were transferred on October 6, 2010, namely, Hector Sr.'s declaration. Third, Theodore argues that the motion should have been denied because Edward failed to join Elba as an indispensable party. Finally, Theodore argues that the court abused its discretion by failing to consider Theodore's procedurally defective opposition, statement of undisputed issues and motions for reconsideration.
We find that the statement in Hector Sr.'s declaration that he transferred the properties to Edward on October 6, 2010 creates a triable issue of fact, and therefore Edward failed to meet his burden in moving for summary judgment.
Theodore contends that Edward failed to meet his burden of producing evidence to show that there was no triable issue of material fact as to ownership of the properties in light of Hector Sr.'s statement that he transferred the properties to Edward on October 6, 2010. We agree.
Civil Code section 1039 provides: "Transfer is an act of the parties, or of the law, by which the title to property is conveyed from one living person to another." The time at which a property has been legally "transferred" is dependent on factual determinations as to delivery and the grantor's intent. (Mecchi v. Picchi (1966) 245 Cal.App.2d 470, 482.) Transfer of property is effected by "delivery of the conveyance with intent to transfer the title. . . ." (Perry v. Wallner (1962) 206 Cal.App.2d 218, 221; see also Hinshaw v. Hopkins (1940) 37 Cal.App.2d 230, 237 ["[i]t is essential to the validity of a transfer of real property that there be a delivery of the conveyance with intent to transfer the title"].)
Delivery of a deed without the intent immediately to effect a transfer of title does not transfer the property at the time of physical delivery. (See Estate of Pieper (1964) 224 Cal.App.2d 670, 686, 688 [finding decedent intended to transfer title at time of death, not at time of physical delivery of deed based on facts including that decedent continued to live in home until death]; Danenberg v. O'Connor (1961) 195 Cal.App.2d 194, 203 [finding decedent "did not intend by the quitclaim deed to [a friend] to divest himself of title to the property" where decedent gave the deed to his attorney and retained full control over the property until his death]; see also Blackburn v. Drake (1963) 211 Cal.App.2d 806, 811 ["[i]ntent to pass title is an essential element of delivery and the question of intent is a question of fact to be determined by the trial court or jury upon all the circumstances surrounding the transaction"].)
As the court held in Estate of Pieper, "`[i]n addition to physical delivery, and an acceptance by the grantee, to constitute a valid delivery there must exist a mutual intention on the part of the parties, and particularly on the part of the grantor, to pass title to the property immediately. In other words, to be a valid delivery, the instrument must be meant by the grantor to be presently operative as a deed, that is, there must be the intent on the part of the grantor to divest himself presently of the title.'" (Estate of Pieper, supra, 224 Cal.App.4th at p. 684.)
We find in this case that there is a disputed question of fact as to the date on which Hector Sr. intended to transfer title to the properties to Edward. Edward states in his declaration that "my grandfather presented me with two grant deeds, also dated September 14, 2010, executed by him pursuant to which Heritage . . . transferred ownership of the [properties] back to me. I accepted these transfers and recorded the deeds with the Los Angeles County Recorder's Office on October 6, 2010. . . ."
By contrast, however, Hector Sr. states in his declaration: "I caused [Heritage] to transfer the [properties] back to Edward on October 6, 2010. [¶] Specifically, I as the manager and authorized agent of [Heritage], executed two grant deeds dated October 6, 2010, in which [Heritage] as grantor granted the [properties] to Edward Perez. . . . My intention in executing the deeds was always to effectuate the transfer of the [properties] from [Heritage] to Edward Perez. [¶] The transfers of the [properties] to Edward were recorded with the Los Angeles County Recorder's Office. . . . Attached hereto as Exhibits `G' and `H' are true and correct copies of the deeds effectuating this transfer. [¶] I advised my wife and daughter, Rosalinda Garza-Wiesand, of the transfers of the [properties] to Edward Perez by [Heritage] shortly after the transfers were effectuated on October 6, 2010."
In light of the fact that Hector Sr. attached a copy of the deeds dated September 14, 2010 to his declaration, it is a fair reading of his declaration that Hector Sr. signed the deeds on September 14, 2010. However, a plain reading of Hector Sr.'s declaration, including his statements that he caused Heritage "to transfer the [properties] back to Edward on October 6, 2010," and that he told his wife and daughters about the transfers "shortly after the transfers were effectuated on October 6, 2010," supports an inference that he intended to effectuate a transfer of the properties to Edward on October 6, 2010.
Accordingly, taking the declarations of Edward and Hector Sr. together, both of which were filed in support of Edward's motion for summary judgment, there is a triable issue of fact as to when title to the properties was transferred by Hector Sr. to Edward. Therefore, Edward failed to meet his burden of proof to show that he held title to the properties in moving for summary adjudication, and the trial court erred in granting Edward's motion. (§ 437c, subds. (c), (f)(1); Biancalana v. T.D. Service Co., supra, 56 Cal.4th at p. 813; Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849.)
The judgment is reversed. Theodore is to recover his costs on appeal.
PERLUSS, P. J., and ZELON, J., concurs.
