Judge: Armen Tamzarian, Case: 21STCV19845, Date: 2023-12-08 Tentative Ruling
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Case Number: 21STCV19845 Hearing Date: April 8, 2024 Dept: 52
Defendants/cross-complainants
Kalousd Pandazos and Dalila Pandazos move for summary judgment or summary
adjudication of plaintiffs
Perry Lazar and Plone Trust’s first cause of action against the Pandazoses for
quiet title and cancellation of instrument.
The Pandazoses further move for summary judgment or adjudication of their
second amended cross-complaint’s first cause of action for quiet title and fourth
cause of action for cancellation of instruments against Perry Lazar, Plone
Trust, Bruce R. Cook, and William E. Devin, III.
Requests for
Judicial Notice
Various parties request judicial
notice of numerous documents. All
documents are subject to judicial notice for their existence and legal
effects. The court grants all requests for judicial notice.
The Pandazoses Do Not Present Grounds for Summary Judgment
As to summary judgment, the motion is not proper because it
would not resolve any entire pleading or result in any judgment. “A party may move for summary judgment in an
action or proceeding if it is contended that the action has no merit or that
there is no defense to the action or proceeding.” (CCP § 437c(a)(1).) In contrast, “[a] party may move for summary
adjudication as to one or more causes of action within an action.” (Id., subd. (f)(1).) “Unlike a summary judgment, which terminates
the entire action and results in an immediate, appealable judgment [citations],
summary adjudication orders do not terminate the action but merely eliminate
the need to prove or disprove at the subsequent trial the particular claim or
defense that has been adjudicated.” (6
Witkin, Cal. Procedure (6th ed. 2023) Proceedings Without Trial, § 313.)
The Pandazoses only move to adjudicate the causes of action
specified above. Granting this motion
would not dispose of any entire pleading and would not result in any
judgment. This is only a motion for
summary adjudication.
Legal Standard
A defendant moving for summary judgment
or adjudication must show “that one or more elements of the cause of action…
cannot be established, or that there is a complete defense to the cause of
action.” (Code Civ. Proc., § 437c, subd.
(p)(2).) Once the defendant does so, the burden shifts
to the plaintiff to show a triable issue of at least one material fact. (Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 849.)
A plaintiff moving for
summary judgment or adjudication “must prove each element of the cause of
action on which he seeks judgment. Once
the plaintiff meets this burden, the burden shifts to the defendant to show
there is a triable issue of material fact as to that cause of action or a
defense thereto.” (Harris v. Rudin,
Richman & Appel (2002) 95 Cal.App.4th 1332, 1337; Code Civ. Proc., §
437c, subd. (p)(1).) The court must deny
a plaintiff’s motion for summary adjudication if the defendant meets its
“burden of showing the existence of a triable issue of material fact as to any
available affirmative defense.” (Oldcastle
Precast, Inc. v. Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554,
568.)
Summary of Facts
The
Pandazoses seek summary adjudication of causes of action regarding a dispute
over two parcels of real property: assessor’s parcel numbers 5867-011-035
(parcel 35) and 5867-011-036 (parcel 36).
(Comp., ¶ 6.) Parcel 36 is a strip
of land along the north side of Ridgepine Drive. (Ibid.) Parcel 35 is two non-contiguous portions of
land: 3.0 acres north of parcel 36 and 4.34 acres south of Ridgepine
Drive. (Ibid.) The claims at issue in this motion arise from
three grant deeds purporting to convey title to the parcels.
First, a grant deed conveyed
property from Bruce R. Cook and William E. Devin III to the Pandazoses,
recorded on December 9, 2003, as instrument No. 03 3707014. (Comp., ¶ 7, Ex. 3.) This deed identifies the real property
conveyed as “APN 5867-011-035” (id., Ex. 3-A), but the “legal description
attached to the Deed as Exhibit A includes the metes and bounds of both parcel
35 and parcel 36.” (M. RJN, Ex. I, Sandstrom
Decl., ¶ 9, Ex. E.)
Second, a grant
deed conveyed property from Cook
and Devin to the Pandazoses, recorded on March 1, 2004, as instrument No. 04
0472488 (the correction deed). (Comp.,
Ex. 4.) The page titled “grant deed” is
identical to the corresponding page of the prior deed, except for changes to
the date, instrument number, and pagination, and the following text above the
grantors’ signatures: “This grant deed is being re recorded to correct the
legal description.” (Ibid.) This deed again identifies the real property
conveyed as “APN: 5867-011-035” (id., Ex. 4-A), but the “legal
description attached to the ‘correction deed’ … as Exhibit A includes the
entire Parcel 35 and the northern portion of Parcel 36.” (RJN, Ex. I, Sandstrom Decl., ¶ 10, Ex. F.)
Third, a grant
deed conveyed property from Cook and Devin to plaintiff Perry Lazar, recorded
on March 8, 2004, as instrument No. 04 0540309.
(Comp., Ex. 5.) This deed identifies
the real property conveyed as “APN: 5867-011-036” (id., Ex. 5-A), but while
“the deed indicates it is a transfer of Parcel 36, the legal description as
part of the deed … includes a metes and bounds of only the Southern portion of
Parcel 36.” (RJN Ex. I, Sandstrom Decl.,
¶ 11.)
The Correction Deed Is
Invalid
The Pandazoses contend the correction deed recorded on
March 1, 2004, is invalid. The
Pandazoses meet their initial burden of proving that. “An estate in real property … can be
transferred only by operation of law, or by an instrument in writing,
subscribed by the party disposing of the same, or by his agent thereunto
authorized by writing.” (Civ. Code, §
1091.) “No estate or interest in real
property … can be created, granted, assigned, surrendered, or declared,
otherwise than by operation of law, or a conveyance or other instrument in
writing, subscribed by the party creating, granting, assigning, surrendering,
or declaring the same, or by the party’s lawful agent thereunto authorized by
writing.” (Code Civ. Proc., § 1971.) Government Code section 27201(c)(1) provides,
“Each instrument, paper, or notice that is rerecorded shall be executed and
acknowledged or verified as a new document, in addition to any previous
execution and acknowledgment or verification, unless” an exception applies. “If a document is rerecorded, it shall comply
with subdivision (c) of Section 27201.”
(Gov. Code, § 27288.1(d).)
The undisputed
facts show the correction deed was rerecorded—but grantors Cook and Devin never
signed it. The document itself shows it
only bears signatures by grantors Cook and Devin on the page titled “grant
deed,” both dated “November 26, 2003.”
(Comp., Ex. 4, p. 4.) That is the
same date as on the first deed. (Id.,
Ex. 3, p. 2.) The correction deed was
not executed and acknowledged or verified as a new document, in addition to any
previous execution and acknowledgment or verification. The signatures dated November 26, 2003, are
not an execution and acknowledgement or verification of the deed “as a new
document, in addition to [the] previous execution and acknowledgment” as
required under Government Code section 27201(c)(1). Those signatures are the same execution and
acknowledgment or verification as the first deed.
The Pandazoses also present supporting testimony by
Cook. At his deposition, Cook testified
he believed the notary public, Gail P. Zimerman “lied when she said that [he]
appeared before her on February 23rd of 2004.”
(M. Sep. Statement, Ex. 1, Cook Depo., 195:8-16.) He explained, “I think this is not a truthful
document” because “I don’t appear to have signed it.” (Id., 197:3-5.) Cook further testified, “I've never seen a
paper like this before that didn’t have the signature of the person who was
supposed to be involved.” (Id.,
197:16-18.)
The record shows
Cook and Devin never signed the correction deed. It was not “subscribed by the” grantors as
required under Civil Code section 1901 and Code of Civil Procedure section
1971. The correction deed therefore did
not constitute a valid conveyance of real property.
Legal Effects of the First
and Third Deeds
The Pandazoses meet their initial burden of proving they
own the entirety of parcels 35 and 36. As
discussed above, the correction deed is invalid. Who owns the property therefore depends on the
legal effects of the first and third deeds.
The first deed’s
legal description identifies
the real property conveyed as “APN 5867-011-035” (Comp., Ex. 3-A), but the “legal description
attached to the Deed as Exhibit A includes the metes and bounds of both parcel
35 and parcel 36.” (M. RJN, Ex. I,
Sandstrom Decl., ¶ 9, Ex. E.)
The legal
description by metes and bounds takes precedence over the APN. “An assessor’s parcel number, also referred
to as an ‘ “APN” ... is a numerical identifier associated with a particular
piece of property for property tax assessment purposes.’ ” (MTC Financial Inc. v. California Dept. of
Tax & Fee Administration (2019) 41 Cal.App.5th 742, 745, fn. 4 (MTC).) “Generally, such a number corresponds to an
assessor’s map [citation], which is a type of map that does not have to
necessarily correspond with the actual physical location of a property.” (Id. at pp. 749-750.)
Revenue and Taxation Code section 11911.1 provides that an
assessor’s parcel “number will be used only for administrative and procedural
purposes and will not be proof of title and in the event of any conflicts, the
stated legal description noted upon the document shall govern.” The Court of Appeal has applied this statute
to hold that a description by metes and bounds controlled over a reference to
APN:
In determining whether the property description in the
[deed’s] legal description is reasonably susceptible to the inclusion of
acreage beyond the metes and bounds description, Revenue and Taxation Code
sections 327 and 11911.1, read together, preclude basing any such
interpretation on the mere presence of the APN notations. If a deed is recorded in a county with an
APN-notation requirement, and the deed bears APN notations referring to an
unrecorded assessor’s map, those APN notations may not be treated as part of
the deed’s legal description of the parcel conveyed unless the face of the deed
clearly indicates such an intention.
[Fn.] While an APN reference
might be considered in resolving an ambiguity that otherwise appears in a deed,
the inclusion of the APN reference does not itself create an ambiguity. Otherwise, potentially every deed recorded in
a county with an APN-notation requirement would be rendered ambiguous.
(XPO Logistics Freight,
Inc. v. Hayward Property, LLC (2022) 79 Cal.App.5th 1166, 1177 (XPO).) In XPO, the court held that the metes
and bounds description prevailed over the APN stated on the same page.
The present case has analogous facts. By the first deed recorded on December 9,
2003, Cook and Devin transferred to the Pandazoses all property included in the
legal description by metes and bounds: both parcels 35 and 36. The legal description prevails over any
conflicting APN.
The third deed did
not constitute a valid conveyance of any property to Lazar. It identifies the real property conveyed as
“APN: 5867-011-036” (Comp., Ex. 5-A), but “[a]lthough the deed indicates it is
a transfer of Parcel 36, the legal description as part of the deed … includes a
metes and bounds of only the Southern portion of Parcel 36.” (RJN Ex. I, Sandstrom Decl., ¶ 11.) Cook and Devin already transferred that
property to the Pandazoses by the first deed.
They could not transfer it again.
Lazar and Plone Trust Show No
Dispute of Material Fact
The opposition by Lazar and Plone Trust does not
establish any triable issue of fact material to the legal effects of the three grant
deeds. In their opposing separate
statement, they state they dispute fact Nos. 2, 3, and 7.
Fact No. 2 states
the Pandazoses entered escrow to purchase property from Cook and Devin with a
specified legal description. Plaintiffs
attempt to dispute this fact on the basis that, “The legal [description] for
parcel 35 is not as stated.” That is not
a dispute of fact. Rather, it restates
one of this motion’s premises: that the first deed recorded in November 2003
includes a legal description that does not match parcel 35.
Fact No. 3 states
that Cook and Devin conveyed title to property as described in the first grant
deed recorded on December 9, 2003.
Plaintiffs attempt to dispute this fact “[t]o the extent that Cook and
Devin conveyed Parcel 36.” That is not a
dispute of fact. That is a dispute about
the deed’s legal effect. The evidence
plaintiffs cite for this purported dispute does not support their position
regarding the deed’s legal effect.
Fact No. 7 states
the correction deed “is a forged deed.” Plaintiffs’
separate statement states, “Unknown if the deed is ‘forged.’ However, it is undisputed as to the
credibility of the correction deed and its content.” Any dispute over whether the deed is “forged”
does not preclude summary adjudication. Defendants
may not have established the deed is “forged,” per se. But they have established that it is
invalid.
The additional facts
asserted in the opposing separate statement also do not establish a triable
issue of material fact. Additional fact
No. 1 asserts, “Neither Pandazos nor Lazar every [sic] received notice of the
The [sic] ‘Correction Grant Deed’ recorded with County Recorder’s Office of the
County of Los Angeles, State of California on March 1, 2004, with [sic].”
That the
Pandazoses never received notice of the correction deed does not establish a
triable issue of material fact. This
evidence supports the Pandazoses, not plaintiffs. “If a correction instrument ‘purports to
diminish the original grantee’s rights in some ways’ it ‘should not be
accepted, unless the original grantee first reconveyed to the grantor or, at
least, evidence in the record reveals her consent.’ ” (XPO, supra, 79 Cal.App.5th at p.
1180.) The correction deed purports to
diminish the Pandazoses’ rights. If the
Pandazoses never received notice of it, they could not have consented to
it. Moreover, if the Pandazoses never
received notice of it, that also means it was never delivered. “ ‘[A]n undelivered deed’ ” is “ ‘wholly
void.’ ” (OC Interior Services, LLC
v. Nationstar Mortgage, LLC (2017) 7 Cal.App.5th 1318, 1332.) The court, however, declines to reach these
issues because the Pandazoses did not make any arguments regarding them.
Additional fact
Nos. 2-3 assert Lazar has maintained parcel 36 and paid the property taxes for
the parcel “consisting of 7.34 acres” since 2004. No. 4 asserts the Pandazoses have paid taxes
on Parcel 35 “consisting of 2.19 acres” since 2003. Plaintiffs provide no authority supporting
the proposition that their alleged payment of property taxes is relevant to the
validity of the grant deeds and their claim of ownership of the disputed
property.
Finally,
additional fact Nos. 5 and 6 concern how much Lazar and the Pandazoses,
respectively, paid Cook and Devin in each purchase agreement. Again, plaintiffs present no authority that
the payments constitute a basis for modifying the legal effect of these real
property instruments.
Reformation
Plaintiffs’ opposition refers to the doctrine of
reformation. (Opp., p. 5.) “When, through fraud or a mutual mistake of
the parties, or a mistake of one party, which the other at the time knew or
suspected, a written contract does not truly express the intention of the
parties, it may be revised on the application of a party aggrieved, so as to
express that intention, so far as it can be done without prejudice to rights
acquired by third persons, in good faith and for value.” (Civ. Code, § 3399.) The opposition cites authority about
reformation but does not make any specific argument or cite any evidence. Assuming plaintiffs presented evidence that
the first grant deed to the Pandazoses did not express the intention of the
grantors, plaintiffs present no evidence of either (a) fraud, (b) mutual
mistake in that the Pandazoses intended only to purchase parcel 35, or (c) that
the Pandazoses knew or suspected Cook and Devin made a mistake in the deed’s
legal description.
Plaintiffs’ 1st Cause of Action Against
the Pandazoses
The
Pandazoses establish they are entitled to summary adjudication of plaintiffs’
first cause of action for quiet title and cancellation of instrument. Plaintiffs’ first cause of action is labeled
“quiet title and cancellation of instrument.”
For the reasons discussed above, only the first of the three grant deeds
constituted a valid conveyance of real property. It conveyed parcels 35 and 36 to the
Pandazoses. The third deed did not
convey any property to Lazar because Cook and Devin had nothing left to convey. The Pandazoses are therefore entitled to
summary adjudication of this cause of action.
The Pandazoses’ 1st Cause of Action for
Quiet Title Against Lazar and Plone Trust
The
Pandazoses are entitled to summary adjudication of this cause of action against
Lazar and Plone Trust for the same reasons as plaintiffs’ cause of action for
quiet title against the Pandazoses. Cook
and Devin did not cause a valid transfer of the subject property to Lazar or
Plone Trust.
The Pandazoses’ 1st Cause of Action for
Quiet Title Against Cook and Devin
The
Pandazoses do not meet their initial burden on summary adjudication of this
cause of action as against Cook and Devin.
“An element of a cause of action
for quiet title is ‘[t]he adverse claims to the title of the plaintiff against
which a determination is sought.’ ” (West
v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 802.)
The
motion fails to establish this cause of action because it does not present
evidence Cook and Devin claim any adverse interest in the Pandazoses’
property. The Pandazoses’ second amended
cross-complaint alleges Cook and Devins “may have a claim of interest
adverse to Cross-Complainants’ title in the Property.” (SACC, ¶ 30, italics added.) The basis of this motion is that the
correction deed is invalid. The
Pandazoses are right about that, but that does not mean Cook and Devin claim
any interest in either parcel 35 or 36.
Whether or not the correction deed is valid, the record shows Cook and
Devin conveyed the entirety of both parcels to someone else. The evidence presented concerns only the dispute
over which real property is owned by the Pandazoses and which is owned by Lazar
and Plone Trust. Nothing in the record
shows Cook and Devin claim title to any portion of the subject property.
The Pandazoses’ 4th Cause of Action for Cancellation
of Instruments Against Lazar and Plone Trust
The Pandazoses are entitled
to summary adjudication of this cause of action against Lazar and Plone Trust. “A written instrument, in respect to which
there is a reasonable apprehension that if left outstanding it may cause
serious injury to a person against whom it is void or voidable, may, upon his
application, be so adjudged, and ordered to be delivered up or canceled.” (Civ. Code, § 3412.) Cancellation requires: “(1) the instrument is
void or voidable due to, for example, fraud; and (2) there is a reasonable
apprehension of serious injury including pecuniary loss or the prejudicial
alteration of one’s position.” (U.S.
Bank National Assn. v. Naifeh (2016) 1 Cal.App.5th 767, 778.)
The “correction” grant deed recorded on March 1, 2024, as instrument
No. 04 0472488 (Comp., Ex. 4) is void or voidable because the grantors, Cook
and Devin, did not execute it. The
instrument would prejudicially alter the Pandazoses’ rights in the subject real
property. They are therefore entitled to
cancellation of the instrument under Civil Code section 3412.
The Pandazoses’ 4th Cause of Action for
Cancellation of Instruments Against Cook and Devin
The Pandazoses are also
entitled to summary adjudication of this cause of action against Cook and
Devin. In an action for quiet title, the
judgment does not necessarily bind every person who had or may have some claim
to the property. (Code Civ. Proc., §
764.030 [“The judgment in the action is binding and conclusive on” certain
persons]; § 764.045 [“the judgment does not affect a claim in the property or
part thereof of any person who was not a party to the action” if certain
conditions are satisfied]; § 764.070 [“the judgment in the action is not
binding or conclusive on” the state or the United States unless they are
parties to the action].) In contrast,
cancellation is all or nothing.
Cancellation results in a written instrument being “ordered to be
delivered up or canceled.” (Civ. Code, §
3412.) It is not merely cancelled as
between certain parties. As the grantors
named in the deed, Cook and Devin are proper parties to this cause of action
for cancellation.
The court exercises its
discretion not to consider the untimely opposition by Cook and Devin. “An opposition to the motion” for summary
judgment or adjudication “shall be served and filed not less than 14 days
preceding the noticed or continued date of hearing.” (Code Civ. Proc., § 437c(b)(2).) March 25 was 14 days before this hearing on
April 8. Cook and Devin filed their
opposition on April 2, only six days before this hearing.
Disposition
The court hereby grants
summary adjudication in favor of Kalousd Pandazos and Dalila Pandazos on the
first cause of action alleged in the complaint by plaintiffs Perry Lazar and
Plone Trust.
The court hereby grants
summary adjudication in favor of Kalousd Pandazos and Dalila Pandazoses on their
second amended cross-complaint’s first cause of action for quiet title against
Perry Lazar and Plone Trust. The court
hereby denies summary adjudication of the Pandazoses’ first cause of
action for quiet title as against Bruce R. Cook and William E. Devin. The court hereby grants summary
adjudication in favor of Kalousd Pandazos and Dalila Pandazoses on their second
amended cross-complaint’s fourth cause of action for cancellation of
instruments against Perry Lazar, Plone Trust, Bruce R. Cook, and William E.
Devin.