Filed: Aug. 28, 2018
Latest Update: Aug. 28, 2018
Summary: ORDER MODIFYING AND DENYING REHEARING [NO CHANGE IN JUDGMENT] BRUINIERS , J. THE COURT: Respondent's petition for rehearing is DENIED. This court's July 30, 2018 opinion meets the standard for publication set forth in rule 8.1105(c) of the California Rules of Court. Accordingly, the requests for publication are GRANTED. It is further ordered that the opinion filed on July 30, 2018, shall be MODIFIED as follows: 1. On page 16, in the final sentence of the first partial paragraph on the p
Summary: ORDER MODIFYING AND DENYING REHEARING [NO CHANGE IN JUDGMENT] BRUINIERS , J. THE COURT: Respondent's petition for rehearing is DENIED. This court's July 30, 2018 opinion meets the standard for publication set forth in rule 8.1105(c) of the California Rules of Court. Accordingly, the requests for publication are GRANTED. It is further ordered that the opinion filed on July 30, 2018, shall be MODIFIED as follows: 1. On page 16, in the final sentence of the first partial paragraph on the pa..
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ORDER MODIFYING AND DENYING REHEARING [NO CHANGE IN JUDGMENT]
BRUINIERS, J.
THE COURT:
Respondent's petition for rehearing is DENIED. This court's July 30, 2018 opinion meets the standard for publication set forth in rule 8.1105(c) of the California Rules of Court. Accordingly, the requests for publication are GRANTED. It is further ordered that the opinion filed on July 30, 2018, shall be MODIFIED as follows:
1. On page 16, in the final sentence of the first partial paragraph on the page, the phrase "where the tenant raises a retaliatory eviction defense" shall be deleted.
2. On page 20, between the second complete paragraph and the final, partial paragraph on the page, add the following new paragraph:
We question whether Evidence Code section 662 would necessarily apply in these circumstances. "Section 662 codifies the common law rule [citations] that oral trusts in derogation of title are disfavored . . . ." (People v. Semaan (2007) 42 Cal.4th 79, 88.) "Evidence Code section 662 does not apply, however, when title itself is challenged as not genuine." (Ibid.) In any event, the relevant focus here is not the operative effect of the disputed Esclamado deed, but Martin's state of mind and his intent for purposes of the Ellis Act.
3. On page 23, following the first complete paragraph on the page, new second and third paragraphs are added. Those new paragraphs shall read:
Contrary to Martin's suggestion, contract construction does not always present a question of law. "Interpretation of a written instrument becomes solely a judicial function only when it is based on the words of the instrument alone, when there is no conflict in the extrinsic evidence, or when a determination was made based on incompetent evidence. (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865; [citation].) But when . . . ascertaining the intent of the parties at the time the contract was executed depends on the credibility of extrinsic evidence, that credibility determination and the interpretation of the contract are questions of fact that may properly be resolved by the jury (Warner Constr. Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 289 [`since the interpretation of the crucial provisions turned on the credibility of expert testimony, the court did not err in submitting the construction of the contract to the jury'])." (City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 395, italics added & fn. omitted.)
In contrast to Bluvshtein, the record here shows significant extrinsic evidence in addition to the deed and written agreements. (See Cedars-Sinai Medical Center v. Shewry (2006) 137 Cal.App.4th 964, 980 ["[e]xtrinsic evidence can include the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties"].) There is Martin's deposition testimony (from which multiple inferences could reasonably be taken), evidence of Martin's and Esclamado's relationship before the agreements were signed, as well as evidence regarding their conduct after the agreements were signed. Because this extrinsic evidence presents conflicting inferences and because a credibility determination will need to be made regarding Martin's testimony, construction of the agreements is not a question of law.
4. On page 23, a new footnote is added at the conclusion of the last complete sentence on the page which reads, "We do not mean to suggest that a landlord's actions in a prior Ellis Act withdrawal will always be admissible in an unlawful detainer action involving a subsequent invocation, no matter how much time has intervened." The new footnote shall read:
Nor are we suggesting the trier of fact in all Ellis Act unlawful detainer cases should make similar inquiries whenever a former tenant acquires an ownership interest. Our holding is limited to the unique circumstances presented in this case.
The modification effects no change in the judgment.
