ward appellants opening brief.70150839
TRANSCRIPT
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2 Civ. No. B211764d
LASC No. BC377611
COURT OF APPEAL
STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THERESA MARIE WARD,
Plaintiff and Appellant,
vs.
ANITA M. MUNOZ, individually and as
Trustee of the Family Trust of Hortence
Luna; FAMILY TRUST OF HORTENCE
LUNA,
Defendants and Respondents.
APPEAL FROM
SUPERIOR COURT OF LOS ANGELES COUNTYHONORABLE TERESA SANCHEZ-GORDON, JUDGE
__________________________________________
APPELLANTS OPENING BRIEF
________________________________________
GLENN WARD CALSADA, SBN 134589
LAW OFFICES OF GLENN WARD CALSADA
2237 WEST SUNSET BOULEVARDLOS ANGELES, CALIFORNIA 90026
Tel. (213) 413-0048 / Fax. (213) 413-4264
Attorney for Plaintiff and Appellant
Theresa Marie Ward
LYNARD C. HINOJOSA , SBN 041397
HINOJOSA & WALLET
2215 COLBY AVENUELOS ANGELES, CALIFORNIA 90064
Tel. (310) 473-7000 / Fax. (310) 473-1730
Attorneys for Defendants and Respondents Anita
M. Munoz and Family Trust of Hortence Luna
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CERTIFICATE OF INTERESTED ENTITIES OR PERSONS
Counsel of Record hereby certifies that interested entities or parties are listed
below:
1. Theresa Marie Ward, Plaintiff and Appellant
2. Anita M. Munoz, an individual and as trustee of the Family Trust of Hortence
Luna, Defendant and Respondent
3. Family Trust of Hortence Luna, Defendant and Respondent
Dated Respectfully submitted,
Law Offices of Glenn Ward Calsada
Glenn Ward Calsada, Esq.Attorney for Plaintiff and Appellant
Theresa Marie Ward
Glenn Ward
Calsada
Digitally signed by Glenn Ward Calsada
DN: cn=Glenn Ward Calsada, o=Law
Offices of Glenn Ward Calsada, ou,
[email protected], c=US
Date: 2009.03.12 15:05:04 -07'00'
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TABLE OF CONTENTS
Page
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF APPEALABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF ISSUES ON APPEAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
LEGAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
A. BASED ON STIPULATED FACTS (AA 196-198), APPELLANT BECAME
100% FEE OWNER OF THE MARYVINE PROPERTY UPON LUNAS
DEATH AND, THEREFORE, APPELLANT IS ENTITLED TO
JUDGMENT IN HER FAVOR AS A MATTER OF LAW. . . . . . . . . . . . . 22
B. CIVIL CODE SECTION 1170 IS NOT A DEFENSE TO RESPONDENTS
FAILURE TO TIMELY RECORD THE QUITCLAIM DEED . . . . . . . . . . 25
C. CIVIL CODE SECTION 683.2 SUBDIVISION (a)s OTHER MEANS
PROVISION IS NOT AN EXCEPTION TO SUBDIVISION (c)s RECORDING
REQUIREMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
D. THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING IN
EVIDENCE THE REAL ESTATE CHECK LIST
(EXHIBIT 38) [AA 349-350]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
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TABLE OF AUTHORITIES
STATE CASES
Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190 . . . . . . . . 33
Blank v. Kirwan (1985) 39 Cal.3d 311 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Broden v. Marin Humane Society (1999) 70 Cal.App.4th 1212 . . . . . . . . . . . . . 21
Calif. Teachers Assn. v. San Diego Comm. College Dist. (1981) 28 Cal.3d 692 21
Cady v. Purser(1901) 131 Cal. 552 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887 . . . . . . . . . . . . . . . . . . . . . 31
Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416 . . . . . . . . . . . . . . . . . . 33
Dorn v. Solomon (1997) 57 Cal.App.4th 650 . . . . . . . . . . . . . . . . . . . . 1, 2,6,21,24
Dougery v. Bettencourt (1931) 214 Cal. 455 . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Eckhardt v. Morley (1934) 220 Cal. 229 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Emeryville Redevelopment Agency v. Harcros Pigments, Inc. (2002)
101 Cal.App.4th 1083 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Estate of England(1991) 233 Cal.App. 3d 1 . . . . . . . . . . . . . . . . . . . . . 26,27,29,30
Estate of Heggstad(1993) 16 Cal.App.4th 943 . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Grothe v. Cortlandt Corp. (1992) 11 Cal. App. 4th 1313 . . . . . . . . . . . . . . . . . . 22
Harustak v. Wilkins (2000) 84 Cal.App.4th 208 . . . . . . . . . . . . . . . . . . . . . . . . . 21
In re Marriage of Connolly (1979) 23 Cal.3d 590 . . . . . . . . . . . . . . . . . . . . . . . . 31
In re Marriage of Slayton & Biggums-Slayton (2001) 86 Cal.App.4th 653 . . . . 21
In re Nash (1951) 102 Cal.App.2d 220 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Kavanaugh v. West Sonoma County Union High School Dist. (2003)
29 Cal.4th 911 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Lewis v. Superior Court(1994) 30 Cal.App.4th 1850 . . . . . . . . . . . . . . . . . . . . . 25
Patience v. Snyder(2000) 78 Cal.App.4th 1001 (Rehearing Granted) . . . . . . . . 34
Re v. Re (1995) 39 Cal.App.4th 91 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21,22
State Farm Fire & Casualty Co. v. Pietak(2001) 90 Cal.App.4th 600 . . . . . . . . 21
Tenhet v. Boswell(1976) 18 Cal. 3d 150 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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T & O Mobile Homes Inc. v. United California Bank(1985)
40 Cal. 3d 441 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Wade v. De Bernardi (1970) 4 Cal.App.3d 967 . . . . . . . . . . . . . . . . . . . . . . . . . 32
Watkins v. Wilhoit(1894) 104 Cal. 395 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
STATE STATUTES
Civil Code 683.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Civil Code 683.2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,9,20,22,29
Civil Code 683.2(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20,22,26.28,29,30
Civil Code 683.2(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2,6,8,34
Civil Code 683.2(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30Civil Code 1170 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,8,20,21,25,26,28,33,34
Code of Civil Procedure 904.1, subds. (a)(1) & (2) . . . . . . . . . . . . . . . . . . . . . . 2
Code of Civil Procedure 761.020, subds. (a)-(e) . . . . . . . . . . . . . . . . . . . . . . . . . 7
Evidence Code 1201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Evidence Code 1271 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Evidence Code 604 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Evidence Code 630 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Evidence Code 641 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Family Code 2581 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Government Code 27320 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
RULES
Los Angeles Superior Court Rule 7.9(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
TREATISES
5 Miller & Starr, Cal. Real Estate (3d ed. 2001) Recording and Priorities,
11.21, pp.58-59 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
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I
INTRODUCTION
This appeal concerns an action for cancellation of deed, quiet title and injunctive
relief brought by Plaintiff and Appellant Theresa Marie Ward against Defendants and
Respondents Anita M. Munoz and the Family Trust of Hortence Luna. Appellant appeals
a judgment after court trial in favor of Respondents. The judgment must be reversed
because the trial court erroneously deemed recorded prior to death a quitclaim deed
executed by decedent Hortence Luna severing her joint tenancy with Appellant and
transferring her entire 50% interest in the subject real property to Respondents. However,
to effectively terminate the right of survivorship, California Civil Code 683.2(c)(2)
requires any deed unilaterally severing a joint tenancy to be notarized not earlier than
three (3) days before death and recorded not later than seven (7) days after death.
Stipulated facts show that the quitclaim deed in question was notarized eight (8) days
prior to decedents death and actually recorded almost three (3) months after her death
and subsequent to Appellants recording of an Affidavit - Death of Joint Tenant. Under
these undisputed facts, Appellant is entitled to judgment as a matter of law. (See, Dorn v.
Solomon, 57 Cal.App.4th 650, 67 Cal.Rptr.2d 311 (1997).) Therefore, the judgment in
favor of Respondents must be reversed.
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II
STATEMENT OF APPEALABILITY
This is an appeal of a September 2, 2008, Judgment on Complaint for Cancellation of
Deed; Quiet Title to Real Property and Injunctive Relief in favor of Respondents. (Appellant's
Appendix [hereinafter "AA"] 226-228.) The notice of appeal was timely filed on October
24, 2008. (AA 224.) On or about October 22, 2008, Respondents filed an application for
an amended judgment to specify costs on a blank space in the signed original Judgment.
(AA 231-232.) Respondents represented that the amended judgment does not affect the
substance of the judgment, nor does it create any misrepresentation of the Courts order,
and should be corrected. (AA 231-232.) On October 31, 2008, the trial court amended
the original judgment to specify the recovery of costs of $2868. (AA 235-237.) On
November 12, 2008, Respondents filed notice of entry of the amended judgment. (AA
239.) The September 2, 2008, judgment, as amended, is an appealable judgment. (Code Civ.
Proc. 904.1, subd. (a)(1) & (2).)
III
STATEMENT OF ISSUES ON APPEAL
1. Whether, based on stipulated facts (AA 196-198), Appellant is entitled to
judgment as matter of law? (Dorn v. Solomon (1997) 57 Cal.App.4th 650, 67
Cal.Rptr.2d 311.)
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Lot 52 of Tract 26385, as per map recorded in Book 681,
pages 8-10 of maps in the Office of the County Recorder for
the County of Los Angeles. (AA 196; Stipulated Fact No.
1.)
Prior to March 2007, the Maryvine Property was held by Hortence Luna (Luna)
and Theresa Ward, pursuant to that certain Grant Deed of Joint Tenancy dated December
16, 1992, executed by Hortence Luna, as Grantor, to Hortence Luna and Theresa Ward,
mother and daughter, as JOINT TENANTS, and recorded in the Official Records of the
Recorders Office of Los Angeles County on January 19, 1993 as Instrument No. 93-
111177 (AA 196-197, 245; Stipulated Fact Nos. 2 and 3 ). Luna died on Thursday,
March 29, 2007 at 6:10 a.m. (AA 250.)
Following the death of Luna, Appellant executed that certain sworn Affidavit -
Death of Joint Tenant attesting to Lunas death on March 29, 2007. Appellant recorded
said document and the attached Certificate of Death in the Official Records of Recorders
Office of Los Angeles County of Los Angeles on April 13, 2007, as Instrument No.
20070896845. (AA 248; Stipulated Fact Nos. 9 & 10.) The recording stamp on the
Lead Sheet bears the date, time and instrument number of the recorded document and
mentions the word counter. (AA 249.) When asked by the court, Appellant explained
that she presented the Affidavit in person at the recorders office for recording. (RT 87.)
Two months later, that certain Quitclaim Deed conveying Lunas interest in the
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Maryvine Property to the Family Trust of Hortence Luna, notarized on March 21, 2007,
by Josie Chua, a notary public, was recorded in the Official Records of the Recorders
Office of the County of Los Angeles on June 21, 2007, at 11:25 a.m., as Instrument No.
20071498265. (AA 197, 252-253; Stipulated Fact Nos. 6, 7 & 8.) The Lead Sheet
bears the date, time and instrument number of the recorded document and, like the
affidavit of death, mentions the word counter. (AA 253.)
Respondent Family Trust of Hortense Luna is a trust instrument dated March 21,
2007, created and governed by California law. (AA 197, 255-312; Stipulated Facts 4 &
5.) Respondent Anita Munoz (Ms. Munoz) is an individual and trustee/beneficiary of
the Family Trust of Hortense Luna. (AA 264 & 311.) Ms. Munoz is Lunas grand-
daughter and Appellants niece. (AA 264.) Ms. Munozs current husband Robert Munoz
was nominated as Lunas successor trustee. (AA 270.)
In February 2007, Ms. Munoz moved in with Luna and acted as her care custodian.
(AA 174, fn. 1.) Ms. Munoz participated in the making of the trust instrument by
contacting attorney Scott Edward Darling on Lunas behalf. (Reporters Transcript
(RT) 131-135.) Luna never actually met the attorney. (RT 69.) A mobile notary public,
Josie Chua, arrived at Lunas house and witnessed her signature on the trust instrument
and Quitclaim Deed. (AA 197; Stipulated Facts Nos. 4 & 6.) Ms. Munozs ex-husband
Maria Jaramillo served as a witness to the signing of the trust instrument. (AA 197;
Stipulated Fact No. 4.) The trust instrument was never recorded.
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In her Complaint, Appellant contended that Ms. Munoz exercised undue influence
over Luna and, given the sequence of events, prayed for cancellation of the Quitclaim
Deed recorded, post-death, and subsequent to the recording of the Affidavit of Death.
Appellant sought a determination that Respondents herein have no right, title, interest or
estate in the Maryvine Property. (AA 1-22.) A Notice of Lis Pendens was recorded on
September 19, 2007, in the Official Records of the Office of County Recorder for the
County of Los Angeles as Instrument No. 20072159657, and the Lead Sheet thereon
mentions the word counter. (AA 23-29.)
In their Answer, Respondents generally denied the allegations of the complaint and
assert only one affirmative defense: that Appellant failed to state facts sufficient to state a
cause of action. (AA 79-80.)
On April 2, 2008, Appellant filed a motion for Judgment on the Pleadings against
Respondents Anita M. Munoz and Family Trust of Hortence Luna. (AA 32.) The motion
was made on the basis that Appellant is 100% fee owner of the Maryvine Property in that
she acquired 100% fee ownership by means of a properly recorded affidavit of death of
joint tenant Hortence Luna and the quitclaim deed in favor of defendant Family Trust of
Hortence Luna was posthumously recorded more than seven (7) days after the death of
joint tenant. (See, Civil Code 683.2(c)(2);Dorn v. Solomon, 57 Cal.App.4th 650, 67
Cal.Rptr.2d 311 (1997).) Consequently, Plaintiffs right of survivorship was not
terminated and Defendants Anita Munoz and Family Trust of Hortence Luna have no
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right, title, interest or estate in the subject property and, therefore, Plaintiff is entitled to
judgment as a matter of law. (AA 33.)
Respondents opposed the motion contending that Appellant was attempting to
bring a motion for summary judgment without complying with procedural requirements.
(AA 82.) Respondents further argued that Decedent severed the joint tenancy when she
transferred her interest in the Maryvine Property to the trust. (AA 84.) In the
opposition, Respondents admitted the quitclaim deed was recorded post-death on June
21, 2007. (AA 87.) There was no mention of the mailing of the deed prior to death.
On May 21, 2008, the court ruled: Plaintiffs Motion for Judgment on the
Pleadings is denied. (See Code of Civil Procedure section 761.020, subds. (a) -(e).) (AA
120.)
On June 13, 2008, Appellant filed her Trial Brief, Witness List and Exhibit List.
(AA 122-151.)
On June 18, 2008, Respondents filed their Witness List and Exhibit List. (AA
152-164.) Respondents made no mention of a Real Estate Check List on their
Exhibit List.
On June 20, 2008, the court ordered Respondents to file and serve a trial brief by
June 25, 2008 noon. (AA 170.)
On June 25, 2008, Defendant Anita M. Munoz filed a Trial Brief. (AA 171-186.)
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Concerning the recording date of the Quitclaim Deed, the brief stated the following: The
Quitclaim deed was officially recorded with the Los Angeles County Recorders office on
June 21, 2007 and deposited with the Los Angeles County Recorders office prior to June
21, 2007. In footnote 2, the brief stated: Theresa executed and recorded her Affidavit
of Death of Joint Tenant on April 13, 2007, after the transfer of Decedents interest in
Maryvine Property to the Trust. Most importantly, Anita deposited the Quitclaim deed
with the Los Angeles Recorders office prior to April 13, 2007. (AA 176.) Nowhere in
the brief did Respondents mention that the deed was mailed to the Los Angeles
Recorders office by the Darling Law Office. During trial, Ms. Munoz denied taking
the Quitclaim Deed to the recorders office to get it recorded. (RT 167:21-27.)
A court trial was set to commence on July 1, 2008. (AA 187-188.) The parties
filed a stipulation on disputed issues to be determined at trial. (AA 189-190.) The triable
issues were identified as follows:
1. Whether the deed is considered recorded when it is deposited
with the Los Angeles County Recorders Office as set forth in Civil Code
section 1170;
2. Whether the quitclaim deed was acknowledged before a notary
public within the time set forth in Civil Code section 683.2(c)(2);
3. Whether the decedents execution of Family Trust of Hortence
Luna dated March 21, 2007 and the transfer of her entire interest in the
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Maryvine Property to the trust by execution of the quitclaim deed dated
March 21, 2007 constitutes a severance of joint tenancy within the language
other means as set forth in Civil Code section 683.2(a); and
4. Whether the decedents trust and quitclaim deed dated March 21,
2007 were the result of indue influence. (AA 190.)
On July 2, 2008, the parties also stipulated to several facts and exhibits (as
mentioned above). (AA 196-198; RT 1.) The issue of undue influence was to be tried
after issues relating to the recording of the deed and severance of the joint tenancy. (RT
2.) On the same day, Appellant filed a Second Supplemental Trial Brief responding to the
deemed recorded argument raised in Ms. Munozs Trial Brief (AA 191-195). This
supplemental brief was accepted and considered by the trial judge over Defendants
objection. (RT 41-49.)
During trial, Ms. Munoz presented the testimony of trust attorney Scott Edward
Darling. (RT 51-83.) Mr. Darling testified that the Quitclaim Deed executed on March
21, 2007, did not get back to his office until the following Monday [March 26, 2007].
THE NEXT DAY [TUESDAY, MARCH 27, 2007], WE MAILED IT TO THE
COUNTY RECORDER FOR LOS ANGELES. (RT 63.) He further testified IT
WOULD HAVE BEEN SENT NORMALLY PROBABLY EITHER REGULAR MAIL
OR PRIORITY MAIL. ... (RT 65.) IT USUALLY ONLY TAKES A DAY OR TWO
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BUT GETTING THEM BACK SOMETIMES AFTER ITS RECORDED IS A LONG
TIME. (RT 66.) Luna died on Thursday, March 29, 2007 at 6:10 a.m.. (AA 250.)
Mr. Darlings only record that the Quitclaim Deed was mailed to County
Recorders office on March 27, 2007, was a document entitled Real Estate Check List.
This document was not listed on the Defendants Exhibit List. Appellants counsel
immediately objected to the document as follows:
MS. SMITH: YOUR HONOR, I WOULD LIKE TO INTRODUCE
INTO EVIDENCE A DOCUMENT CALLED REAL ESTATE CHECKLIST
WHICH SHOWS THAT THE DOCUMENT WAS MAILED OUT ONMARCH 27, 2007. (R.T. 63:25-28.)
MR. CALSADA: I HAVENT SEEN THIS DOCUMENT, YOUR
HONOR. THIS IS AN ITEM THATS NOT LISTED ON THEIR EXHIBIT
LIST.
THE COURT: PRESENT IT TO PLAINTIFFS COUNSEL,
PLEASE. WHAT DID YOU CALL THE DOCUMENT?
MS. SMITH: ITS CALLED A REAL ESTATE CHECKLIST.
MR. CALSADA: YOUR HONOR, I OBJECT. THIS HAS INITIALS
BY SOMEBODY NAMED L H AND I DONT THINK THAT PERSON IS
HERE TO AUTHENTICATE THIS CHECKLIST.
THE COURT: VERY WELL.
MS. SMITH: YOUR HONOR, I WOULD LIKE TO REQUEST
THAT THIS BE ADMITTED BECAUSE THIS IS IN THE FILE OF MR.
DARLINGS OFFICE AND MR. DARLING IS FAMILIAR WITH THIS
DOCUMENT AND HE CAN READ FROM THE DOCUMENT INTO THE
RECORD WHAT THE DOCUMENT SAYS.
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THE COURT: I WILL ALLOW THAT. AND THIS WOULD BE?
(RT 64:1-16.)
THE COURT: LAY THE FOUNDATION AND WELL SEE
WHETHER ITS GOING TO BE ADMITTED OR NOT.
THE WITNESS: YES, I RECOGNIZE THAT DOCUMENT.
Q. BY MS. SMITH: AND CAN YOU PLEASE TELL THE COURT
WHAT THIS DOCUMENT REPRESENTS?
A. THIS IS A FORM WE USE KEEPING TRACK OF DEEDS ON
CLIENTS FILES FOR ESTATE PLANNING. THIS PARTICULAR ONE
AS IT INDICATES ON THE DOCUMENT IT TALKS ABOUUT A LOT 52
AND APN LETTER. THATS THE INFORMATION REGARDING THEPROPERTY IN EL MONTE FOR MS. LUNA AND THE DATE THERE IS
THE DATE THAT WAS SENT TO THE COUNTY RECORDERS OFFICE,
WHICH IS WHAT WE ALWAYS DO. WE MARK DOWN WHEN WE
SEND THINGS AND WHEN WE PROCESS THINGS AND THE INITIALS
THERE ARE L H WHICH WOULD BE LINDSEY HUGHES WHICH IS
ONE OF MY SECRETARIES.
Q. THANK YOU. AND WHEN YOU SENT THE DEED, THE QUIT
CLAIM DEED TO THE L.A. COUNTY RECORDERS OFFICE, WAS IT
IN A RECORDABLE FORM WITH ALL THE NECESSARY FEES AND
PAPERWORK?
A. YES.
THE COURT: ASK HIM HOW IT WAS SENT. LET HIM TELL US.
Q. BY MS. SMITH: HOW WAS IT SENT, MR. DARLING?
A. IT WOULD HAVE BEEN SENT NORMALLY PROBABLY
EITHER REGULAR MAIL OR PRIORITY MAIL. IT WOULD HAVE
BEEN SELF-ADDRESSED STAMPED ENVELOPE. IT WOULD HAVE
ALL THE FEES AND CHECKS WITH IT. IT WOULD HAVE BEEN THE
PRELIMINARY CHANGE OF OWNERSHIP NOTICE WITH ALL THOSE
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(RT 65) THINGS SIGNED AND SENT TO THE RECORDERS OFFICE.
JUST A NORMAL TYPE RECORDING WHERE WE SEND IT OFF WITH
ALL THE INFORMATION, ALL THE FEES, AND ALL THE
SIGNATURES AND EVERYTHING.
Q. AND AS FAR AS YOU ARE CONCERNED, BASED ON THE
ORDINARY COURSE OF BUSINESS, DID YOU CONSIDER THIS AS
DEPOSITED WITH THE LOS ANGELES COUNTY RECORDERS
OFFICE ONCE IT WAS MAILED OUT?
A. WE EXPECTED IT TO BE FILED IMMEDIATELY UPON
RECEIPT.
Q. AND IN YOUR EXPERIENCE, HOW MANY DAYS DOES IT
TAKE FOR THE LOS ANGELES COUNTY RECORDERS OFFICE TORECEIVE THIS DOCUMENT?
A. IT USUALLY ONLY TAKES A DAY OR TWO BUT GETTING
THEM BACK SOMETIMES AFTER ITS RECORDED IS A LONG TIME.
Q. DO YOU HAVE ANY IDEA WHY IT WOULD TAKE SO LONG
FOR THE LOS ANGELES COUNTY RECORDERS OFFICE TO
ACTUALLY RECORD THE DOCUMENT?
A. I DO NOT HAVE ANY KNOWLEDGE WHY THE WOULD
TAKE SO LONG.
Q. IS IT UNCOMMON THAT SOMETIMES THEY DO TAKE SO
LONG TO RECORD A DOCUMENT?
A. ID SAY ITS UNCOMMON FOR THEM TO TAKE SO LONG
TO RECORD A DOCUMENT. I THINK THAT LIKE I SAID, IT TAKES
A LONG TIME TO GET IT BACK SO.
THE COURT: LET ME INTERJECT HERE. WHATS THE DATE
OF THE RECORDATION? (RT 66)
MS. SMITH: JUNE 21 .ST
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THE COURT: OKAY. ...(RT 67:1-2.)
On cross-examination, Mr. Darling testified as follows:
By Mr. Calsada:
Q. NOW, GO BACK TO EXHIBIT NUMBER THREE. QUIT CLAIM
DEED. IS IT YOUR TESTIMONY THAT THIS DOCUMENT WAS
MAILED TO THE L.A. COUNTY RECORDERS OFFICE?
A. YES.
Q. WHAT ADDRESS?
A. I DONT REMEMBER THE ADDRESS.
Q. DO YOU KNOW IF THE ENVELOPE HAD POSTAGE?
A. THE ENVELOPE WOULD HAVE HAD POSTAGE ON IT.
Q. DO YOU KNOW THAT?
A. DID I PHYSICALLY SEE THE ENVELOPE?
Q. DID YOU PHYSICALLY PERSONALLY SEE
A. NO, I DID NOT PHYSICALLY PERSONALLY SEE THE
ENVELOPE.
Q. WHO WOULD KNOW THAT?
A. PROBABLY ONE OF MY SECRETARIES WOULD KNOW
THAT.
Q. PROBABLY.
A. ONE OF THEM WOULD KNOW THAT, YES. I DONT KNOW
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MR. CALSADA: I DO OBJECT TO THE DEFENDANTS REAL
ESTATE CHECKLIST THAT WAS PRESENTED. IT WAS NOT A
DOCUMENT THAT WAS IDENTIFIED IN THEIR EXHIBIT LIST. THIS
IS A DOCUMENT THATS PRESENTED TODAY. IVE HAD NO
OPPORTUNITY TO QUESTION THE PERSON WHO ALLEGEDLY
PREPARED THIS DOCUMENT AND I BELIEVE THAT IT IS IN THE
FORM OF THEIR DIRECT CASE-IN-CHIEF AND SHOULD HAVE
BEEN PROVIDED AT LEAST AS PART OF THEIR EXHIBIT BOOK. AT
THIS POINT IN TIME ITS NOT PRODUCED FOR IMPEACHMENT
PURPOSES.
IN ADDITION, I THINK IT LACKS IN FOUNDATION. WE DONT
REALLY KNOW FROM THE PERSON THAT PREPARED THE
DOCUMENT IF IT WAS PREPARED AT OR NEAR THE TIME THAT IS
STATED ON MARCH 27, 2007. WE DONT REALLY KNOW THAT.
IT SEEMS TO BE THE ONLY ITEM ON THE LIST OF ITEMS
THAT WERE MAILED OUT TO HORTENCE LUNA WHICH IS KIND OF
STRANGE TO ME SINCE OTHER ITEMS WERE BEING MAILED OUT.
THERES A LOT OF CORRESPONDENCE TO ANITA MUNOZ THAT
WAS BEING MAILED OUT AND THIS IS THE ONLY DOCUMENT
THAT IS ON THE CHECKLIST.
I THINK THAT THERES A LACK OF FOUNDATION AND ALSO
YOU HAVE NO INFORMATION AS TO HOW THE DOCUMENT WASMAILED.
YOU DONT HAVE AN ADDRESS. YOU DONT HAVE
INFORMATION AS TO SUFFICIENT POSTAGE, WHAT WAS THE
CONTENTS OF THE ENVELOPE, ANYTHING UNDER PENALTY OF
PERJURY. FOR ALL THOSE REASONS, I THINK THAT THE
DOCUMENT IS HEARSAY AND IT SHOULD NOT BE ADMITTED INTO
THIS CASE.
THE COURT: THANK YOU. (RT 83-84.)
[...]
MR. CALSADA: YOUR HONOR, THE TESTIMONY THAT YOU
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RECEIVED TODAY, HEARD TODAY FROM MR. DARLING IS
TESTIMONY THAT HE IS NOT CERTAIN WHEN THE DOCUMENT
WAS ACTUALLY RECEIVED BY THE L.A. COUNTY RECORDERS
OFFICE.
THERE IS SUBSTANTIAL DOUBT AS TO WHETHER OR NOT IT
WAS RECEIVED IN THE MAIL. THE EXHIBIT ITSELF, EXHIBIT 3,
PART OF THE STIPULATION, SHOWS THAT ITS STAMPED WITH
THE WORD COUNTER ON THAT, WHICH WOULD GIVE THE
INDICATION THAT THIS IS SOMETHING THAT OCCURRED IN THE
PUBLIC COUNTER.
THE COURT: THATS SPECULATION, COUNSEL. (RT 85:18-28.)
MR. CALSADA: I UNDERSTAND, AT THE SAME TIME YOUHAVE A SUBSTANTIAL DELAY WITH REGARD TO THE DOCUMENT
IN TERMS OF ITS BEING MAILED.
THE COURT: HOW DO WE KNOW ITS SUBSTANTIAL DELAY?
MR. CALSADA: FROM THE TIME PERIOD THAT IT WAS
MAILED IN TO JUNE 21 IS AT LEAST 90 DAYS.ST
THE COURT: I AGREE WITH THAT BUT HOW DO WE KNOWITS SUBSTANTIAL AND THAT IT IS NOT COMMON? I HAVENT
HEARD ANYTHING FROM THE RECORDERS OFFICE. ITS ALL
SPECULATION. (RT 86:1-10.)
[...]
MY CLIENT RECORDED AS PART OF THE STIPULATION, AN
AFFIDAVIT OF DEATH, EXHIBIT NUMBER TWO,. AN AFFIDAVIT OF
DEATH ... WAS RECORDED ON APRIL 13, 2007 BEFORE THE
RECORDING OF THE QUIT CLAIM DEED.
THE COURT: DID SHE GO THE COUNTER?
MR. CALSADA: ITS STAMPED RECORDED.
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THE COURT: BUT IT ALSO HAS COUNTER SO MY QUESTION
IS DID SHE GO THE COUNTER AND RECORD IT?
MR. CALSADA: YOUR HONOR, THE ANSWER TO THAT IS SHE
WENT TO THE COUNTYS OFFICE AND ACTUALLY PRESENTED
THE DOCUMENT THERE.
THE PLAINTIFF: YES, I DID.
MR. CALSADA: ON APRIL 13 AND THERES ALSO ON THISTH
DOCUMENT EXHIBIT 2 IS THE WORD COUNTER. (RT 87:7-21.)
[...]
THE COURT: ALL RIGHT, COUNSEL. PROCEED. YOU
MENTIONED DEEMED RECORDED. PROCEED ON THAT.
MR. CALSADA. YES, YOUR HONOR. I WANT TO BACK UP A
BIT. WHEN I READ THE DEFENDANTS TRIAL BRIEF, IT WAS MY
UNDERSTANDING BASED UPON THE BRIEF PAGE SIX, FOOTNOTE
NUMBER TWO, THAT ANITA DEPOSITED THE QUIT CLAIM DEED
WITH THE COUNTY RECORDERS OFFICE.
THIS THEORY OR THE STATEMENT ABOUT MR. DARLING ISNEW EVIDENCE. THIS IS SOMETHING THAT JUST CAME IN AND
THIS IS NOT WHAT THEY SAID WAS GOING TO BE THE BASIS OF
THEIR CASE IN THEIR TRIAL BRIEF.
I DONT KNOW WHAT GAME WERE PLAYING HERE. ALL I
KNOW IS THAT IM DEALING WITH TRYING TO FIGURE OUT
WHERE THEYRE GOING. ON THE ONE HAND IN THEIR BRIEF
THEYRE SAYING IT WAS ANITA WHO DEPOSITED THE
DOCUMENT AND NOW THEYRE SAYING ON, IT WAS MAILED IN.
ALL WE KNOW IS THAT THERE IS A COUNTER STAMP ON
JUNE 21, 2007 ON THAT DOCUMENT. (RT 88:4-21.)
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[...]
THE COURT: YES, I UNDERSTAND. YOURE CHALLENGING
WHETHER OR NOT IT WAS ACTUALLY TAKEN. DEPOSITED TO THE
RECORDERS OFFICE PRIOR TO THE APRIL PRIOR TO THE DEATH
OF ACTUALLY OF MARCH 29 .TH
MR. CALSADA: IN ORDER FOR THEM TO RAISE SOME SORT
OF PRESUMPTION THAT THE DOCUMENT WAS MAILED, THEY
NEED THE TESTIMONY OF A PERSON WHO SAYS THAT HOW THEY
ADDRESSED THE ENVELOPE, HOW THEY IF IT WAS PROPERLY
STAMPED TO THE COUNTY RECORDERS OFFICE TO
SUFFICIENTLY DO SO. YOU DONT HAVE THAT TESTIMONY HERE.
THE ACTUAL TESTIMONY, THE ACTUAL EVIDENCE THATYOU HAVE BEFORE YOU, WHATS IN THE STIPULATION AND IN
THE STIPULATION, YOU HAVE RECORDED INSTRUMENTS WITH
DATE STAMPS. THOSE RECORDED INSTRUMENTS ARE THE
COMPETENT EVIDENCE THAT YOU HAVE BEFORE YOU AND THAT
COMPETENT EVIDENCE WOULD SAY THAT THE DOCUMENTS
WERE RECORDED ON JUNE 21 AND THERES NO REASON TO SAYST
THAT THEY WERE DEEMED RECORDED ON ANY OTHER DATE.
YOU DONT HAVE ANY COMPETENT EVIDENCE OF THAT.
AND WHAT GETS TO BE ME IS THE FACT THAT I HAVE TODEAL WITH THE TRIAL BRIEF THAT SAYS THAT ANITA (RT 93:8-28)
DEPOSITED THE DOCUMENTS WITH THE COUNTY RECORDERS
OFFICE AND THEN SHE BRINGS IN A WITNESS WHO SAYS NO,
SOMEONE ELSE MAILED IT IN. (RT 94:1-3.)
By Minute Order dated July 2, 2008, the trial judge ruled:
Over the objection of plaintiffs counsel, exhibit 38 [Real Estate
Check List] is admitted in evidence. (AA 205.)
By Minute Order dated July 2, 2008, the trial judge also ruled:
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The court finds that the execution of the Trust and the transfer of the
Maryvine Property to the Trust was not the product of undue influence or the
Decedents lack of capacity. It has been shown that there was no undue
influence, coercion or fraud exercised over the Decedent by Anita, or any other
person.
It has further been shown that the Trust Quitclaim Deed transferring the
Maryvine Property to the Trust was solely a result of the freely exercised
testamentary intent and sound mind of the Decedent.
The court finds as to the issue of severance, the Decedent severed the
joint tenancy when she transferred her entire joint tenancy interest in the
Maryvine Property to the Trustee of the Trust for benefit of Decedent. The
court finds that as to the issue of recording, deposit of the Quitclaim Deed with
the Los Angeles County Recorders Office timely, was sufficient to
accomplish recording. (AA 206.)
By Minute Order dated July 8, 2008, the court granted Judgment for Defendant.
Counsel for Defendant was ordered to submit an appropriate judgment within 10 days.
(AA 210.) On September 2, 2008, the court entered Judgment for Defendants. (AA 214-
216.) The Judgment contained the following factual findings:
3. Hortence Luna severed the joint tenancy in the real property
located at 12643 Maryvine Street, El Monte, California 91732 when she
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transferred her entire interest in said real property to the Trustee of the
Family Trust of Hortence Luna dated March 21, 2007.
4. The deposit of the Quitclaim Deed executed by Hortence Luna on
March 21, 2007 wherein she conveyed her entire interest in the real
property located at 12643 Maryvine Street, El Monte, California 91732 with
the Los Angeles County Recorders office by the Law Offices of Scott
Darling is deemed as a recording under Civil Code section 1170 and
satisfies the requirements of Civil Code section 683.2 subdivions (a) and
(c). (AA 215.)
On October 24, 2008, Appellant timely filed a Notice of Appeal of Judgment after
Court Trial. (AA 218.)
On October 31, 2008, Respondents filed an Application for an Amended Judgment
to add costs. (AA 231-232.) The court signed the Amended Judgment on October 31,
2008, adding costs of $2868. No other changes were made. (AA 235-237.)
V
STANDARD OF REVIEW
At trial, the parties stipulated to all the relevant facts on the question of the
effectiveness of severance of the joint tenancy by recorded deed. (AA 196-198.) (See,
Dorn v. Solomon, 57 Cal.App.4th 650, 67 Cal.Rptr.2d 311 (1997).) Therefore, this court
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is called upon to interpret a statutory scheme (Civil Code 683.2 and 1170.) When the
issues on appeal involve the interpretation of statute (Kavanaugh v. West Sonoma County
Union High School Dist. (2003) 29 Cal.4th 911, 916; California Teachers Assn. v. San
Diego Community College Dist. (1981) 28 Cal.3d 692, 699), or the application of law to
undisputed facts (Emeryville Redevelopment Agency v. Harcros Pigments, Inc. (2002)
101 Cal.App.4th 1083, 1095;Harustak v. Wilkins (2000) 84 Cal.App.4th 208, 212), the
appropriate standard of review is de novo. (See also,Re v. Re (1995) 39 Cal.App.4th 91,
46 Cal.Rptr.2d 62.)
An appellate court reviews the trial courts ruling on the admissibility of evidence
for an abuse of discretion. (In re Marriage of Slayton & Biggums-Slayton (2001) 86
Cal.App.4th 653.) To preserve the right to challenge the admission of evidence on
appeal, a party must timely object in the trial court. (Broden v. Marin Humane Society
(1999) 70 Cal.App.4th 1212, 1227; State Farm Fire & Casualty Co. v. Pietak(2001) 90
Cal.App.4th 600, 610 [burden of demonstrating error rests on appellant].)
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VI
LEGAL ARGUMENT
A. BASED ON STIPULATED FACTS (AA 196-198), APPELLANT BECAME
100% FEE OWNER OF THE MARYVINE PROPERTY UPON LUNAS
DEATH AND, THEREFORE, APPELLANT IS ENTITLED TO JUDGMENT IN
HER FAVOR AS A MATTER OF LAW.
"A distinctive feature of joint tenancy, as opposed to other interests in land, is the
right of survivorship. This means that when one joint tenant dies, the entire estate belongs
automatically to the surviving joint tenant(s). [Citations.]" (Grothe v. Cortlandt Corp.
(1992) 11 Cal. App. 4th 1313, 1317 [15 Cal. Rptr. 2d 38].) The severance of a joint
tenancy transforms it into a tenancy in common by extinguishing the right of
survivorship. (Tenhet v. Boswell(1976) 18 Cal. 3d 150, 155 [133 Cal. Rptr. 10, 554 P.2d
330];Re v. Re (1995) 39 Cal. App. 4th 91, 96 [46 Cal. Rptr. 2d 62].)
A joint tenant may sever a joint tenancy in real property unilaterally by: (1)
executing and delivering a deed to a third person, (2) executing a deed to him or herself,
(3) executing a written declaration of severance, or (4) executing any other written
instrument evidencing an intent to sever. ( Civ. Code, 683.2, subd. (a).)
Civil Code 683.2(c) sets forth the mechanical requirements for severing a joint
tenancy. Civil Code 683.2(c), reads: "Severance of a joint tenancy of record by deed,
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written declaration, or other written instrument pursuant to subdivision (a) is not effective
to terminate the right of survivorship of the other joint tenants as to the severing joint
tenant's interest unless one of the following requirements is satisfied: [] (1) Before the
death of the severing joint tenant, the deed, written declaration, or other written
instrument effecting the severance is recorded in the county where the real property is
located. [] (2) The deed, written declaration, or other written instrument effecting the
severance is executed and acknowledged before a notary public by the severing joint
tenant not earlier than three days before the death of that joint tenant and is recorded in
the county where the real property is located not later than seven days after the death of
the severing joint tenant."
Here, the Affidavit - Death of Joint Tenant was recorded two (2) weeks after
Lunas death. (AA 248-251.) However, the Quitclaim Deed (AA 252-254) was recorded
almost three (3) months after death. The trust instrument was never recorded. (AA 255-
312.) Given these undisputed facts, Appellants right of survivorship was never
terminated by the Quitclaim Deed or trust instrument. Upon the Lunas death, Appellant
became 100% owner of the Maryvine Property. (See,Dorn v. Solomon, 57 Cal.App.4th
650, 67 Cal.Rptr.2d 311 (1997).)
The events inDorn v. Solomon are substantially similar to this case. On
September 20, 1993, the wife therein executed a quitclaim deed purporting to transfer the
family home to her irrevocable trust. She unexpectedly died the following day. Ten days
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Family Code 2581 provides, in part: For the purpose of division of property on1
dissolution of marriage or legal separation of the parties, property acquired by the
parties during marriage in joint form, including property held in tenancy in common, joint
tenancy, or tenancy by the entirety, or as community property, is presumed to be
community property.
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later, the wifes estranged husband recorded an "Affidavit--Death of Joint Tenant" with
the county recorder. On October 25, 1993, the trustee of the irrevocable trust recorded
the quitclaim deed. The trustee appealed arguing that the wife had a right to transfer her
community property interest in the family home based on Family Code 2581. Finding1
that Family Code 2581 does not apply when a joint tenant dies, the Court of Appeals (4 th
District) ruled in favor of the husband noting the following:
Of course, [the wife] still could have legally severed the joint tenancy by
following the provisions of Civil Code section 683.2, which sets forth the requirements
for severing a joint tenancy. It appears from the record before us that this is what she was
trying to do. However, subdivision (c)(2) explicitly provides that the deed must be
recorded not later than seven days after the death of the severing joint tenant. Here, the
trustee did not record the deed until a month after [the wife] died, and thus it was invalid
under this section. (Dorn v. Solomon, 57 Cal.App.4th at 653, 67 Cal.Rptr.2d at 313,
emphasis added.)
Given theDorn case and the stipulated facts (AA 196-198) herein, the Quitclaim
Deed is invalid, constitutes a cloud on Appellants title and must be canceled and stricken
from the official records of the Recorders Office of the County of Los Angeles.
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A recorded document does not impart constructive notice from the moment of2
recordation. Rather, the operative event is the proper indexing of the document. (Lewis v.
Superior Court(1994) 30 Cal.App.4th 1850, 1866.) "The policy objective of providing
constructive notice requires that the instrument be indexed and reproduced in such amanner that a third party can be informed of any interest reflected by the recorded
instrument. To impart notice, an instrument must be indexed and reproduced in the public
records in such a manner that it can be located readily and read by a subsequent party. If
an instrument cannot be located by searching the grantor and grantee indices of the public
records, the instrument does not constitute constructive notice and later bona fide
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B. CIVIL CODE SECTION 1170 IS NOT A DEFENSE TO RESPONDENTS
FAILURE TO TIMELY RECORD THE QUITCLAIM DEED.
The trial court clearly erred in finding that Civil Code 1170 was an available
defense. Civil Code 1170 provides that: an instrument is deemed to be recorded when,
being duly acknowledged or proved and certified, it is deposited in the recorders office,
with the proper officer, for record. This provision was originally enacted in 1872.
According to the literal language of the statute, recordation is considered complete
when the subject document is deposited with the proper official. Whether it applies
depends on the purpose of the recordation requirement in Civil Code section 683.2.
The California Supreme Court held inDougery v. Bettencourt(1931) 214 Cal.
455, 6 P.2d 499, that Civil Code section 1170 did not apply where the purpose of a
recordation requirement is to give constructive notice to the world of the fact or content
of a recorded document. (Id. at p. 463, 6 P.2d 499.) Unless the actual indexing and filing
has been completed, a deemed recorded document cannot give such constructive
notice. Therefore, the Supreme Court decided, mere deposit is not sufficient to give2
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purchasers or encumbrancers are not charged with knowledge of its existence. Properindexing is necessary to enable the document to be located by subsequent parties. If it is
not properly indexed it cannot give notice because it cannot be located by a subsequent
party dealing with the property and later purchasers and encumbrancers are not charged
with knowledge of its existence or contents." (5 Miller & Starr, Cal. Real Estate (3d ed.
2001) Recording and Priorities, 11.21, pp. 58-59, fns. omitted.)
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constructive notice; actual recordation must be completed. Section 1170 of the Civil
Code was never intended to apply to those situations where the recordation of the
instrument was intended as constructive notice to third persons. (Id. at p. 464, 6 P.2d
499; See also,Eckhardt v. Morley (1934) 220 Cal. 229, 30 P.2d 423.)
Section 1213 of the same code provides that a conveyance recorded as prescribed
by law from the time it is filed with the recorder for record is constructive notice of the
contents thereof to subsequent purchasers and mortgagees. Construing sections 1170
and 1213 together, the Supreme Court has held that wherever the purpose of the
recordation is to give constructive notice of the contents of the instrument, the mere
deposit of it with the recorder is not the equivalent of recordation. (Dougery v.
Bettencourt(1931) 214 Cal. 455, 461-465 [6 Pac. (2d) 499]; Cady v. Purser(1901) 131
Cal. 552 [63 P. 844]; Watkins v. Wilhoit(1894) 104 Cal. 395, 399 [38 P. 53].) The
responsibility for insuring that the instrument is actually recorded is properly placed on
the party seeking the protection offered by recordation. (T & O Mobile Homes Inc. v.
United California Bank(1985) 40 Cal. 3d 441, 709 P.2d 430, 220 Cal. Rptr. 627.)
The purpose of Civil Code 683.2(c) was explained inEstate of England(1991)
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Estate of England(1991) 233 Cal.App.3d 1, 284 Cal.Rptr. 361, held that an3
unrecorded will cannot sever a joint tenancy given the requirements of CC 683.2(c).
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233 Cal.App. 3d 1, 6-7, as follows:3
The purpose of section 683.2, subdivision (c), is to avoid potentially
fraudulent behavior by the party who executes a document severing the
joint tenancy. The Law Revision Commission recommendation regarding
the 1985 amendment states that, [s]ince a severance may be made secretly,
there is an opportunity for fraud: A joint tenant may execute an undisclosed
severance, deposit the severing instrument with a third person, and instruct
the third person to produce the instrument if the severing joint tenant dies
first so the severed half may pass to his or her heirs or devisees. However, if
the other joint tenant dies first, the secret severing instrument may be
destroyed so that the surviving joint tenant will take the other half of the
property by survivorship, thereby becoming owner of the entire property.
[para.] . . . This new requirement [i.e., subdivision (c)] will prevent the
severing joint tenant from suppressing the severing instrument if the other
joint tenant dies first. (Recommendations Relating to Recording Severance
of Joint Tenancy (Jan. 1985) 18 Cal. Law Revision Com. Rep. (1985) pp.
253-254, fns. omitted; see, generally, Fetters, An Invitation to Commit
Fraud: Secret Destruction of Joint Tenant Survivorship Rights (1986) 55
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Fordham L.Rev. 173; Crawford, Destructibility of Joint Tenancies in Real
Property (1970) 45 State Bar J. 222.)
[...]
Section 683.2, subdivision (c), now ensures that a joint tenant cannot have it
both ways. Either the joint tenancy is severed and the joint tenant's right of
survivorship is lost, or the joint tenancy remains, denying the joint tenant
the right to devise his or her interest by will.
In this case, the first public notice of the March 21, 2007, Quitclaim Deed was
June 21, 2007. Two weeks after Luna death, record title showed that Appellant owned
the Maryvine Property as a 100% fee owner. Prior to June 21, 2007, no one other than
Ms. Munoz or Mr. Darling was publicly aware of the unrecorded trust instrument or the
Quitclaim Deed. Section 683.2(c)s short seven (7) day time-period to record a deed after
death was established to prevent precisely this type of long term defect in record title.
The trial court clearly erred in allowing Civil Code 1170 to act a defense in this case.
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683.2(a) provides: Subject to the limitations and requirements of this section, in4
addition to any other means by which a joint tenancy may be severed, a joint tenant may
sever a joint tenancy in real property as to the joint tenant's interest without the joinder or
consent of the other joint tenants by any of the following means: (1) Execution anddelivery of a deed that conveys legal title to the joint tenant's interest to a third person,
whether or not pursuant to an agreement that requires the third person to reconvey legal
title to the joint tenant. (2) Execution of a written instrument that evidences the intent to
sever the joint tenancy, including a deed that names the joint tenant as transferee, or of a
written declaration that, as to the interest of the joint tenant, the joint tenancy is severed.
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C. CIVIL CODE SECTION 683.2 SUBDIVISION (a)s OTHER MEANS
PROVISION IS NOT AN EXCEPTION TO SUBDIVISION (c)s RECORDING
REQUIREMENT.
The trial court also erred in finding that the joint tenancy was severed when Luna
transferred the Maryvine Property to an unrecorded trust instrument. For this finding, the
trial court implicitly relied upon Section 683.2(a)s statement recognizing other means
to sever a joint tenancy. With regards to the interplay between Section 683.2(a)s other4
means language and Section 683.2(c)s recording requirements, the court inEstate of
Englandheld:
Section 683.2, subdivision (c), requires that a document unilaterally
severing a joint tenancy be recorded in order to give the other joint tenants
constructive notice of the severance and to avoid fraud. Accordingly,
subdivision (a)'s inclusion of other means to sever a joint tenancy may not
be read to include a will which has not been recorded as required by
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Civil Code 683.2(d) provides very limited exceptions to the recording5
requirements: Nothing in subdivision (c) limits the manner or effect of: (1) A written
instrument executed by all the joint tenants that severs the joint tenancy. (2) A severance
made by or pursuant to a written agreement of all the joint tenants. (3) A deed from a
joint tenant to another joint tenant.
Appellant does not dispute that a written declaration of trust by the owner of real6
property, in which he names himself trustee, is sufficient to create a trust in that property,
and that the law does not require a separate deed transferring the property to the trust.
(See,Estate of Heggstad(1993) 16 Cal.App.4th 943, 950, 20 Cal.Rptr.2d 433: We
hasten to note, however, that to be effective as to strangers, the declaration of trust must
be recorded.)
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subdivision (c)." See,Estate of England233 Cal.App. 3d at 6-7.
Notably,Estate of Englandnever actually decided whether a will is a written
instrument which, if notarized and recorded, can sever a joint tenancy. (See,Estate of
England233 Cal.App. 3d at p.7, fn. 7.) The mere failure to comply with 683.2(c)s
requirement to record the will was a sufficient legal basis, standing alone, to deny
severance of the joint tenancy. This is so because the recording requirement of 683.2(c)
is clear. To be effective, the severing instrument or deed must be recorded in the county
where the real property is located. Only a properly indexed instrument can give
constructive notice of its contents to the non-severing joint tenant. No other exception
applies. Here, the trial court made a clear error in law in finding that the joint tenancy5
was severed when Luna transferred her interest in the Maryvine Property to an
unrecorded trust instrument.6
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Surprise denotes some condition or situation in which a party to a cause is7
unexpectedly placed to his injury, without any negligence of his own . . . which ordinary
prudence could not have guarded against. (In re Nash (1951) 102 Cal.App.2d 220, 222;
Wade v. De Bernardi (1970) 4 Cal.App.3d 967, 971.)
Evidence Code 1271 states: Evidence of a writing made as a record of an act,8
condition, or event is not made inadmissible by the hearsay rule when offered to prove theact, condition, or event if: [] (a) The writing was made in the regular course of a
business; [] (b) The writing was made at or near the time of the act, condition, or event;
[] (c) The custodian or other qualified witness testifies to its identity and the mode of its
preparation; and [] (d) The sources of information and method and time of preparation
were such as to indicate its trustworthiness.
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matters worse, Respondents deliberately misled the court and Appellant by stating in their
Trial Brief: Most importantly, Anita deposited the Quitclaim deed with the Los Angeles
Recorders office prior to April 13, 2007. (AA 176.) A party should be able to prepare
her case based on the exhibits the opposing party indicates it will use, and should not be
put to the task of redefining her strategy after trial begins. Appellant was plainly
surprised and was given no reasonable opportunity to respond. (RT 103.)7
2. Lack of Foundation and Hearsay.
Exhibit 38 was admitted for its truth as a business record to establish proof of
mailing of the Quitclaim Deed on March 27, 2007. However, the analytical flaw in the8
trial court's reasoning was its failure to recognize and address the fact that the Real Estate
Check List contained multiple layers of hearsay. When multiple hearsay is offered, an
exception for each level of hearsay must be found in order for the evidence to be
admissible. (Evid.Code, 1201.) (Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100
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Evidence Code 641 provides that "[a] letter correctly addressed and properly9
mailed is presumed to have been received in the ordinary course of mail." The
presumption provided by Evidence Code 641 is one affecting the burden of producing
evidence. (See Evid. Code, 630.) The presumption does not arise until the foundational
facts are established. (Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, 421; Evid.
Code, 604.)
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Cal.App.4th 1190, 1203-1207 [911 dispatch log].) Mr. Darling admitted that he did not
remember the address of L.A. County Recorders office, did not know if the envelope had
postage, did not recall which of his secretaries mailed the envelope and did not personally
know what the envelope contained. (RT 76:1-6.) None of these facts were described on
the Real Estate Check List itself and, therefore, was insufficient evidence of a proper
mailing as a matter of law. (Evidence Code 641.) Most importantly, Darling admitted9
he had no personal knowledge that the L.A. County Recorders Office actually received
the Quitclaim Deed on or before March 29, 2007. (RT 79:19-26.) There is no doubt, of
course, that admission of Exhibit 38 altered the course of the trial and prejudiced
Appellants case. Exhibit 38 was the only evidence that the Quitclaim Deed was mailed
to the Los Angeles County Recorders office on March 27, 2007. Without that document,
the trial court could not have made its finding that the Quitclaim Deed was deemed
recorded prior to Lunas death. Admission of Exhibit 38 was an abuse of discretion.
3. Inadequacy
More importantly, admission of the Real Estate Check List was insufficient
evidence of a deposit with the proper official under Civil Code 1170. Without any
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In 2000, the Court of Appeals for the Fourth Appellate District certified for10
publication the opinion in Patience v. Snyder, 78 Cal.App.4th 1001, 93 Cal.Rptr.2d 265
(Cal.App. Dist.4 03/01/2000) which held that a deed deposited with the proper official
within the meaning of Government Code 27320 is sufficient to accomplish the statutoryobjective of Civil Code 683.2(c). However, that decision was promptly granted a
rehearing on March 9, 2000. A subsequent opinion was filed on July 21, 2000, not for
publication.
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legal authority, the trial court erroneously assumed that mere mailing of the Quitclaim
Deed to the Los Angeles County Recorders office, without evidence of actual receipt
prior to death, is a timely "deposit" with a proper official within the meaning of the
Civil Code 1170. However, there was no evidence whatsoever that the recorders office
actually took possession of the Quitclaim Deed any time prior to the June 21, 2007.
Government Code section 27320 reads, "When any instrument authorized by law
to be recorded is deposited in the recorder's office for record, the recorder shall endorse
upon it in the order in which it is deposited, the year, month, day, hour, and minute of its
reception, and the amount of fees for recording. The recorder shall record it without
delay. Thus, the Government Code prescribes a sequence of two crucial steps for
recordation: deposit of a document ready for recordation, and actual recordation.
Under this definition, the deposit of the Quitclaim Deed herein did not occur until June
21, 2007, the date when the instrument was actually endorsed and fees were actually
paid. For the reasons given above, the trial courts finding that the Quitclaim Deed was10
deposited with the L.A County Recorders office prior to Lunas death was clearly
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erroneous.
V
CONCLUSION
For the foregoing reasons, Appellant respectfully requests that this court reverse
the judgment in favor of Defendants and order the entry of a new and different judgment
in favor of the Plaintiff Theresa Marie Ward.
Dated Respectfully submitted,
Law Offices of Glenn Ward Calsada
Glenn Ward Calsada, Esq.
Attorney for Appellant
Theresa Marie Ward
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CERTIFICATE OF COMPLIANCE
Counsel of Record hereby certifies that pursuant to Rule 8.204(c)(1) or 8.360(b)(1)
of the California Rules of Court, the enclosed brief of Appellant Theresa Marie Ward is
produced using 13-point Roman type including footnotes and contains approximately
8970 words, which is less than the total words permitted by the rules of court. Counsel
relies on the word count of the computer program used to prepare this brief.
Dated Respectfully submitted,
Law Offices of Glenn Ward Calsada
Glenn Ward Calsada, Esq.
Attorney for Appellant
Theresa Marie Ward