Judge Gail Killefer, Case Number: 22STCV04368, Date: 2024-01-11 Tentative Ruling

MOVING PARTY: Plaintiff Lermont Moukoian individually and as Trustee of the Lermon Moukoian Living Trust

OPPOSING PARTY: Defendants The Estate of Harutiun Moukoian; Zovinar Suzie Postajian Moukoian (“Zovinar” or “Suzie”) individually and as Trustee of the Zov S. Postajian Moukoian Living Trust.

TENTATIVE: Plaintiff’s Motion for Summary Adjudication is granted as to the eighth cause of action and denied as to the first, fifth, and ninth causes of action.

This action involves a dispute over ownership of a property. On February 3, 2022, Lermont Moukoian (“Plaintiff” or “Lermont”) individually and as Trustee of the Lermont Moukoian Living Trust, filed a Complaint against The Estate of Harutiun Moukoian; Zovinar Suzie Postajian Moukoian (“Zovinar” or “Suzie”) individually and as Trustee of the Zov S. Postajian Moukoian Living Trust (collectively “Defendants”); Does 1 to 70, and All Persons or Entities Unknown Claiming Any Legal or Equitable Right, Title, Estate, Lien or Interest in the property located in Glendale, California (the “Glendale Property”).

The operative First Amended Complaint (“FAC”) alleges nine causes of action: (1) Cancellation of Instruments under Civ. Code § 3412; (2) Financial Elder Abuse in violation of Welf. & Inst. Code §§ 15610.27, 15610.30, and 15657.5; (3) Physical Elder Abuse in violation of Welf. & Inst. Code §§ 15610.27, 15610.07, 15610.57, and 15657; (4) Fraud/Intentional Misrepresentation; (5) Quiet Title; (6) Conversion; (7) Unjust Enrichment; (8) Prob. Code §§ 850 and 859 for double damages; and (9) Declaratory Relief.

On April 28, 2023, Federal Home Loan Mortgage Company was dismissed as a defendant.

On June 15, 2022, Zovinar, individually and as trustee filed a Cross-Complaint against Lermont, individually and as trustee of the Lermont Moukoian Living Trust, and Roes 1 to 20. The Cross-Complaint alleges two causes of action: (1) Declaratory Relief; and (2) Promissory Estoppel.

On September 29, 2023, the Plaintiff filed a Motion for Summary Adjudication of Issues in the FAC. Defendant Zovinar filed an opposition. The Plaintiff filed a reply on December 8, 2023. The court continued the hearing on the motion from January 3, 2024, to January 11, 2024. The matter is now before the court.

Plaintiff’s Motion for summary adjudication

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”¿(Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) Summary adjudication may be granted as to one or more causes of action within an action, or one or more claims for damages. (CCP § 437c(f).)¿¿¿¿¿¿¿¿¿¿

A defendant moving for summary judgment bears two burdens: (1) the burden of production – presenting admissible evidence, through material facts, sufficient to satisfy a directed verdict standard; and (2) the burden of persuasion – the material facts presented must persuade the court that the plaintiff cannot establish one or more elements of a cause of action, or a complete defense vitiates the cause of action. (CCP § 437c(p)(2);¿Aguilar,¿supra, 25 Cal.4th at p. 850-851.) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim.¿¿(Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.)¿¿Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.”¿(Ibid.)¿¿¿¿¿¿¿¿¿

“On ruling on a motion for summary judgment, the court is to ‘liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.’” (Cheal v. El Camino Hospital¿(2014) 223 Cal.App.4th 736, 760.) On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. [Citation.]” (Binder v. Aetna Life Ins. Co.¿(1999) 75 Cal.App.4th¿832, 839.)¿¿¿¿¿¿

Defeating summary judgment requires only a single disputed material fact. (See CCP § 437c(c) [a motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law”] [italics added].) Thus, any disputed material fact means the court must deny the motion – the court has no discretion to grant summary judgment. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925 n. 8; Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511-1512.)¿¿¿¿

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452(c), (d), and (h).) “Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.” (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.)

1) The Death Certificate of Harutiun Henry Moukoian as attached hereto as Exhibit “1.”

2) The Affidavit of Death of Joint Tenant reflecting the death of Zabel Moukoian and conveying title to the real property located at 1620 Camulos Avenue, Glendale, California 91208 by operation of law to Lermont Moukoian attached hereto as Exhibit “2.”

3) The Grant Deed dated May 12, 2012, reflecting Lermont Moukoian’s conveyance of title to the real property located at 1620 Camulos Avenue, Glendale, California 91208 to Lermont Moukoian, Trustee of the Lermont Moukoian Living Trust attached hereto as Exhibit “3.”

4) The Grant Deed dated June 30, 2018, conveying title to 1620 Camulos Avenue, Glendale, California 91208 from Lermont Moukoian, Trustee of the Lermont Moukoian Living Trust to Harutiun Henry Moukoian, Trustee, a married man as his sole and separate property attached hereto as Exhibit “4.”

5) The Grant Deed dated September 5, 2018, conveying title to 1620 Camulos Avenue, Glendale, California 91208 from Lermont Moukoian, Trustee of the Lermont Moukoian Living Trust to Harutiun Henry Moukoian, Trustee, a married man as his sole and separate property attached hereto as Exhibit “5.”

6) The Deed of Trust recorded September 12, 2018, collateralizing a promissory note in the amount of $370,000 by Harutiun Henry Moukoian secured by the real property located at 1620 Camulos Avenue, Glendale, California 91208 attached hereto as Exhibit “6.”

7) The Grant Deed dated August 18, 2020, conveying title to 1620 Camulos Avenue, Glendale, California 91208 from Harutiun Henry Moukoian, a Married Man as his sole and separate property to Harutiun Henry Moukoian and Suzie Z. Moukoian, Husband and Wife and Joint Tenants attached hereto as Exhibit “7.”

8) The Affidavit of Death of Joint Tenant for Harutiun Henry Moukoian dated March 20, 2021, attached hereto as Exhibit “8.”

9) The Trust Transfer Deed dated May 22, 2021, conveying title to 1620 Camulos Avenue, Glendale, California 91208 from Suzie Z. Moukoian, aka Zovinar Suzie Postajian Moukoian, a widow, to Zovinar Suzie Postajian Moukoian (also known as Suzie Z.P. Moukoian), Trustee of the Zov. S. Postjian Moukoian Living Trust dated May 18, 2021, attached hereto as Exhibit “9.”

Defendant/Cross-Complainant Zovinar requests judicial notice of the following:

5) Exhibit 5: Trust Transfer Deed dated May 18, 2021, for the Glendale Property.

6) Exhibit 6: Report of Court Appointed Counsel Attorney Regarding Temporary Conservatorship of Person and Estate of Lermont Moukoian.

“[W]hen evidentiary objections are in proper form, a trial court must rule on the objections.” (Vineyard Springs Estates v. Superior Court (2004) 120 Cal.App.4th 633, 642.) “Because the statute and legislative history are silent as to the specific manner in which evidentiary objections must be made, we presume that the Legislature intended no changes to the established procedure for making evidentiary objections. Thus, the California Rules of Court govern.” (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 531.)

Here, Defendant Zovidar’s objections are in an improper form and fail to follow the requirements of the California Rules of Court (“CRC”). CRC Rule 3.1354 requires that the objecting party:

(1) Identify the name of the document in which the specific material objected to is located;

(2) State the exhibit, title, page, and line number of the material objected to;

Furthermore, CRC Rule 3.1354(b) and (c) require that objections be made in a separate document and that the party submit a proposed order with places for the court to indicate whether it sustains or overrules each objection and a place for the signature of the judge.

Here, Defendant Zovinar failed to quote or set forth the objectional statement or material. Moreover, no proposed order for the objections was submitted. Nevertheless, the court exercises its discretion and rules on Defendant Zovinar’s objections.

Objection Paragraph 3 is sustained as Patrick tries to prove the contents of a writing, in violation of the Best Evidence Rule.

Objections to Paragraphs 4 and 5 are overruled as the statement does not lack foundation and Defendant Zovinar fails to articulate what preliminary facts are missing from his declaration as to render it inadmissible.

Objections to Paragraphs 6 and 7 are overruled as the statements in the paragraph are not dependent on the content of the writing and instead are based on the Declarant’s personal knowledge as Successor Trustee of Plaintiff’s Living Trust.

Objections to Paragraphs 3, 4, 5, 11, 12, 14, and 22 are sustained due to hearsay.

Objections to Paragraphs 6, 9, 15, 16, 18, and 19, are sustained as the statements violate the Best Evidence Rule.

Objections to Paragraphs 7, 13, 20, 21, and 23 are overruled as the objections lack merit.

Objection to Paragraph 10 is overruled as the statement does not depend on the contents of a writing and is based on the Declarant’s personal knowledge as Successor Trustee of Plaintiff’s Living Trust.

Objections to Paragraphs 3 and 14 are overruled as the statements do not depend on a writing and are based on the Declarant’s personal knowledge as the Trustee of the Living Trust.

The court declines to rule on objections to Paragraphs 7, 8, 9, 10, and 17, as the objections are immaterial to the court’s disposition of this Motion. (CCP § 437c(q).) All objections not ruled upon are preserved for appeal.

Objections to Paragraphs 11, 22, 23, 25, 26, 28, 30, 31, 34, 36, 37, 45, 46, 48, 51, 57, 58, 59, 60, and 75 are overruled as the objection lacks merit.

Objection to Paragraph 13 is overruled as the statement does not depend on a writing and is based on the Declarant’s personal knowledge as the husband of the deceased.

Objection to Paragraph 24 is sustained as the Declarant fails to provide facts as to how he has personal knowledge that the Glendale Property was worth over $1,000,000.00.

Objections to Paragraphs 27, 29, 32, 40, 41, 47, 50, 62, 63, 65, 66, 67, and 68 are sustained due to hearsay.

Objections to Paragraphs 33, 43, 52, 70, 71, 72, and 74 are sustained as the paragraphs try to prove the contents of a writing in violation of the Best Evidence Rule.

Objection to Paragraph 38 is sustained in part as to the following sentence: “Harut never advised me to get the advice of counsel concerning my transfer of title to Harut and did not obtain a Certificate of Independent Review.”

Objection to Paragraph 39 is sustained in part as to the sentence: “Harut told me he was applying for a loan of $350,000.”

Objection to Paragraph 42 is overruled as the statement is based on the Declarant’s personal knowledge and does not depend on the contents of the writing.

Objection to Paragraph 53 is similarly overruled as the statement goes to the intent regarding the inclusion of a provision in the Plaintiff’s Living Trust and is based on the Plaintiff’s personal knowledge as the Trustee of the Living Trust and the statement is not dependent on the contents of the Living Trust.

Objections to Paragraphs 55, 56, and 64 are sustained as the statements fail to provide facts that show that the Declarant had personal knowledge of those facts.

Objection to Paragraph 69 is sustained in part as to the sentence “Harut never responded to Anna’s letter.” The objection is otherwise overruled as it lacks merit.

Objection to Paragraph 2 is overruled as Defendant Zovinar also relies on her deposition testimony to oppose this Motion. (See Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 856 [“Since Defendants had relied on this very same evidence, there was no merit to these objections and they should not have been sustained.”].) Further CRC, Rule 3.1116(b) requires that only the relevant portion of any deposition transcript be included.

Plaintiff’s Evidentiary Objections to the Declaration of Zovinar Suzie Postajian Moukoian:

Objections Nos. 1, 2, 3, and 4 are sustained and the statement fails to show the Declarant has personal knowledge of the facts alleged.

Plaintiff’s Evidentiary Objections to Defendant Zovinar’s Request for Judicial Notice.

Plaintiff Lermont Moukoian (“Lermont” or “Plaintiff”) individually and as Trustee of the Lermont Moukoian Living Trust (the “Living Trust”), moves for summary adjudication of the following issues:

Issue 1: Lermont Moukoian individually and as Trustee of the Lermont Moukoian Living Trust are entitled to judgment on their first cause of action to order up and cancel the 4 Deeds at issue as a matter of law, canceling and expunging the instruments that Defendants have improperly recorded on the Glendale Property.

Issue 2: Lermont Moukoian individually and as Trustee of the Lermont Moukoian Living Trust is entitled to summary adjudication in their favor as to the fifth cause of action to quiet title as a matter of law, quieting title in favor of Plaintiffs, establishing that Plaintiffs are the sole owners of the Glendale Property in Fee Simple as of February 3, 2022, and that Defendants have no interest whatsoever in the Glendale Property.

Issue 3: Lermont Moukoian individually and as Trustee of the Lermont Moukoian Living Trust is entitled to summary adjudication in their favor as to the eighth cause of action to return property back to Lermont’s Trust pursuant to Cal. Prob. Code § 850 as a matter of law, returning the Glendale Property back to Lermont Moukoian, as Trustee of the Lermont Moukoian Living Trust, establishing that Lermont, as the Trustee is the sole owner of the Glendale Property in Fee Simple as of February 3, 2022, and that Defendants have no interest whatsoever in the Glendale Property.

Issue 4: Lermont Moukoian individually and as Trustee of the Lermont Moukoian Living Trust is entitled to summary adjudication in their favor as to the ninth cause of action for declaratory relief as a matter of law establishing that Plaintiffs are the sole owners of the Glendale Property in Fee Simple as of February 3, 2022, and that Defendants have no interest whatsoever in the Glendale Property.

A. Defendant Zovinar’s Untimely Notice of Court Clarification and Failure to Expressly State that Zovinar Opposes the Motion both Individually and in Her Representative Capacity as an Administrator and Trustee for the other Named Defendants

On November 29, 2023, an opposition to the Plaintiff’s Motion for Summary Adjudication was filed by “Defendant Suzie Zovinar Moukoian.” The court notes that Defendant Zovinar’s full name is given as “Zovinar Suzie Postajian Moukoian” and not as “Suzie Zovinar Moukoian.” The opposition made no mention that Zovinar opposed the motion both individually and in her capacity as the Administrator of The Estate of Harutiun Moukoian and as Trustee of the Zov. S. Postajian Moukoian Living Trust. Plaintiff filed a reply on December 8, 2023, along with a Notice of Certain Defendants’ Non-Opposition as to Non-Opposing Parties Zovinar Moukoian, as Administrator of the Estate of Harutiun Moukoian (Deceased), and Zovinar Suzie Postajian Moukoian, as Trustee of the Zov S. Postajian Moukoian Living Trust (“NonOpposing Defendants”).

On December 11, 2023, the Defendants’ filed a “Notice of Court Clarification” stating that “the document entitled ‘Defendant’s Opposition to Lermont Moukoian’s Motion for Summary Adjudication’ and all supporting documents filed by Defendants [sic] Zovinar Suzie Postajian Moukoian, is intended to include all Defendants, specifically, The Estate of Harutiun Moukoian, Zovinar Suzie Postajian Moukoian, individually and as Trustee of the Zov S. Postajian Moukoian Living Trust.” Defendant argues that because Zovinar is the Administrator of The Estate of Harutiun Moukoian and is the Trustee of the Zov S. Postajian Moukoian Living Trust, the named Defendants are one and the same.

The Plaintiff disputes this contention and filed an opposition to the “Notice of Court Clarification” and a Supplemental Opposition to the “Notice of Court Clarification.” “ ‘A probate or trust estate is not a legal entity; it is simply a collection of assets and liabilities. As such, it has no capacity to sue or be sued, or to defend an action. Any litigation must be maintained by, or against, the executor or administrator of the estate.’ ” (Galdjie v. Darwish (2003) 113 Cal.App.4th 1331, 1344 citing Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2003) ¶ 2:126, p. 2–36.) “At common law, where a cause of action is prosecuted on behalf of an express trust, the trustee is the real party in interest because the trustee has legal title to the cause.” (Saks v. Damon Raike & Co. (1992) 7 Cal.App.4th 419, 427.)

The court agrees that Zovinar’s Opposition was defective because it provided no notice that she was opposing the motion both individually in her capacity as the Administrator of The Estate of Harutiun Moukoian and as the Trustee of the Zov S. Postajian Moukoian Living Trust. First, there is no authority permitting a party to file a “Notice of Court Clarification” in opposition to a motion for summary adjudication. Secondly, no Notice of Errata has been made by Defendants^{^[1]}. (CCP § 473(a).)

An opposition to a motion for summary adjudication “shall be served and filed not less than 14 days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise.” (CCP, § 437c(b)(2). Here, the “Notice of Court Clarification” was not served until three days after Plaintiff had filed his reply. “A trial court has broad discretion under rule 3.1300(d) of the Rules of Court to refuse to consider papers served and filed beyond the deadline without a prior court order finding good cause for late submission.” (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765.)

However, the Defendants did not file any late papers but made a “clarification” that Zovinar’s opposition was filed not just in her capacity but also in her representative capacity as an administrator and trustee. In Choi v. Sagemark Consulting (2017) 18 Cal.App.5th 308, at a hearing for a motion for summary judgment, the plaintiffs filed a notice of errata seeking to correct an inadvertent omission of two deposition exhibits from evidence filed in support of their opposition to the motion and requested leave to amend their separate statement in opposition. (Id. at p. 317.) The trial court, noting the plaintiffs’ failure to comply with the statutory requirements of a summary judgment motion and the unfairness to the defendants, denied the request. The appellate court found that the trial court did not abuse its discretion in refusing both requests and in rejecting plaintiffs' arguments that relied on the late-filed evidence. (Id. at p. 321.) In Mackey v. Board of Trustees of California State University (2019) 31 Cal.App.5th 640, the appellate court found that the trial court did not abuse its discretion in excluding the plaintiffs’ declaration filed in opposition to the motion for summary judgment because they were filed four days after the defendant had filed its reply and three days before the hearing. (Id. at p. 657.) Despite the reason given for the omissions, was an “upload error,” the trial court refused to consider the declarations because the “plaintiffs did not seek a continuance, and there was no abuse of discretion in excluding declarations filed after the reply.” (Ibid.)

Here, unlike the plaintiffs in Choi and Makey, the Defendants are not seeking to submit new evidence but instead are seeking to correct a mistake or omission regarding the names of the parties opposing Plaintiff’s Motion. Thus, the court may properly treat the “Notice of Court Clarification” as a Notice of Errata. More importantly, Plaintiff has made no showing that he is prejudiced by the “Notice of Court Clarification.” Therefore, the court on its own Motion treats the “Notice of Court Clarification” as a Notice of Errata to correct omissions in Defendant’s opposition and reflect the fact that Defendant Zovinar in her individual and in her representative capacity as Administrator of The Estate of Harutiun Moukoian and as Trustee of the Zov. S. Postajian Moukoian Living Trust is opposing Plaintiff’s Motion. (See CCP § 473(a).)

The following facts are undisputed unless otherwise noted by citation to the evidence. In 1983, Plaintiff Lermont and his wife acquired title to a property located in Glendale, California (the “Glendale Property.” (Undisputed Material Fact (“UMF”) 12.) Sometime after the death of his wife, on May 12, 2012, Lermont conveyed title of the Glendale Property to The Lermont Moukoian Living Trust, UTD May 12, 2012 (the “Living Trust”) with Lermont being the Trustee. (UMF 14; see also Plaintiff’s Request for Judicial Notice (“PRJN”) Ex. 3; Defendant’s request for Judicial Notice (“DRJN”) Ex. 7.) Until May 2018, the Plaintiff owned the Glendale Property free and clear. (UMF 22.)

In May 2011, Plaintiff’s son, Albert Moukoian (“Albert”), and his wife moved into the Glendale Property and lived with Plaintiff. (UMF 15.) Albert and his wife eventually had four children, but around April 2018 Plaintiff wanted Albert to move out of the Glendale Property. (UMF 16, 19.) The Plaintiff reached out to his other son, Harutiun Henry Moukoian (“Harut”), to assist in getting Albert to move out of the Glendale Property. (UMF 3, 20, 23.) In a meeting that took place in mid-May 2018, the parties do not dispute that Plaintiff told Harut that he wanted Albert and his family to move out, but because Albert was not working and had four children and a wife, he wanted to financially help Albert and his family move out. (UMF 23; see also Lermont Decl. ¶ 23.)

The parties dispute what specific agreement was reached between Plaintiff and Harut, regarding the Glendale Property. Unfortunately, Harut died on February 6, 2021. (UMF 4.) Harut was married to Defendant Zovinar. (UMF 5.) According to Plaintiff, the terms of the oral agreement regarding the Glendale Property are as follows:

a) The Plaintiff would transfer title to Harut temporarily as an accommodation and conditional transfer of legal title so that Harut could obtain a loan collateralized by the Glendale Property to fund Albert’s move out money.

b) After Albert vacated from the Glendale Property, Harut and his family would move into the Glendale Property with Plaintiff and reside there.

c) Instead of paying rent, Harut would pay the mortgage, taxes and insurance for the Glendale Property, and pay off the loan obtained to fund Albert’s move out money.

d) Once the loan was obtained and Albert had moved out and Harut and his family moved into the Glendale Property, Harut would transfer title to the Glendale Property back to Plaintiff, as Trustee of Lermont’s Living Trust.

Zovinar disputes that the agreement required Harut to reconvey the title to the Glendale Property back to Plaintiff. (Suzie Moukoian Decl. (hereinafter “Zovinar Decl.”) ¶¶ 5, 10.) According to Zovinar, the agreement was that a loan would be taken out against the Glendale Property and part of the proceeds would be used to renovate the Glendale Property and pay Albert to move out while Harut and Zovinar would be responsible for maintenance and upkeep. (Zovinar Decl. ¶ 5.)

Plaintiff maintains that on July 24, 2018, his daughter Anna Dejean (“Anna”), informed Harut that Plaintiff had a Living Trust and she had power of attorney for Plaintiff. (Anna Decl. ¶ 3.)

To the Successor Trustee’s Attention: LERMONT MOUKOIAN wishes to give to the successor Trustee the following instructions for administrative items:

Grant Deed No. 1 was executed on June 30, 2018, wherein Plaintiff as Trustee of Living Trust passed the title of the Glendale Property to Harut as “trustee of the Harutiun Henry Moukoian, a married man as his sole and separate property.” (PRJN Ex. 4.) On July 2, 2018, Grant Deed No. 1 was recorded with the Los Angeles County Recorder’s Office as Instrument No. 20180661851. (UMF 32, 37.)

On September 5, 2018, Grant Deed No. 2 was executed wherein Plaintiff as the Trustee of the Living Trust granted the Glendale Property to Harut, as a married man as his sole and separate property. (PRJN Ex. 5.) On September 12, 2018, Grant Deed No. 2 was recorded. (PRJN Ex. 5.)

On September 22, 2020, Grant Deed No. 3 was recorded, wherein Harut transferred his interest in the Glendale Property to Harut and his wife, Zovinar, husband and wife as joint tenants. (PRJN Ex. 7.)

On June 9, 2021, Grant Deed No. 4 was recorded, wherein Zovinar, as widow, transferred the title of the Glendale Property to Zov S. Postajian Moukoian Living Trust. (UMF 72; PRJN Ex. 9.)

Grant Deed No. 1 stated: “THERE IS NO CONSIDERATION FOR THIS TRANSFER. There is zero ($0) Documentary Transfer Tax due. This is a bona fide gift and the grantor received nothing in return, Revenue and Taxation Code § 11911.” (PRJN Ex. 4 [bold and all caps in original].)

Grant Deed No. 2 has a cross “[X]” over the designation that states “Exempt from transfer tax, Reason: ‘This is a bonafide gift and the grantor received nothing in return, R & T 11911.” (PRJN Ex. 5.)

Grant Deed No. 3 contains a stamp stating: “This is a bonafide gift and the grantor received nothing in return, R&T 11911.” (PRJN Ex. 7.)

Grant Deed No. 4 states “This conveyance transfers grantor’s interest into her Revocable Living Trust, R & T 11930.” (PRJN Ex. 9.)

Zovinar disputes any contention that Plaintiff’s transfer of the Glendale Property was without consideration because Plaintiff wanted Albert to move out, but Albert could not do so financially. Accordingly, Harut received a loan with the Glendale Property as collateral, paid Albert to move out, and used the remaining loan proceeds to repair and remodel the Glendale Property for the Plaintiff’s benefit. (Perryman Decl. Ex. A [Lermont Depo. at pp. 36-23-39; 42:23-43:7], Zovinar Decl. ¶¶ 8, 11; PRJN Ex. 6.)

The following facts are undisputed. On September 12, 2018, a Deed of Trust collateralizing a promissory note signed by Harutiun Henry Moukoian in the amount of $370,000.00 was recorded with the Los Angeles County Recorder’s Office, Instrument No. 20180935461. (UMF 50; PRJN Ex. 6.) On September 25, 2018, Harut paid Albert a total of $250,000.00 to move out. (UMF 51, 53.) On September 26, 2018, Albert and his family moved out of the Glendale Property. (UMF 54.) In executing Grant Deeds Nos. 1 and 2, Harut failed to obtain the notarized approval and consent of Anna and her husband, Patrick Dejean (“Patrick”). (UMF 59, 60.)

Under Civ. Code § 3412, 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 cancelled.” “ ‘To prevail on a claim to cancel an instrument, a plaintiff must prove (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.’ ” (Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1193–1194 [internal citations omitted].)

Plaintiff seeks cancellation of Grant Deed Nos. 1 to 4 on the basis that Plaintiff’s Living Trust expressly prohibited the transfer of any Trust asserts without the notarized approval and consent to the Successor Trustees, Anna and Patrick. (Lermont Decl. Ex. 1 at p. 23; DRJN Ex. 7 at p. 23.)

By the express provisions of the Successor Trustee Instructions, “during [the] lifetime” of Plaintiff, “the validity of any sale, transfer of Titles / ownerships, or mortgaging of all or any portion my Trust” required “the notarized approval and consent of” Anna and her husband, Patrick, in order for the transfer of any property to be valid. (Lermont Decl. Ex. 1 at p. 23; DRJN Ex. 7 at p. 23.)

Defendant Zovinar does not dispute that Harut failed to obtain the notarized approval and consent of Anna and Patrick prior to recording Grant Deed Nos. 1 and 2. (UMF 59, 60.) Therefore, Plaintiff has met his burden of showing that his transfer of the Glendale Property to Harut was invalid because there was no notarized consent from Anna and Patrick as required by the Living Trust. “ ‘A void deed passes no title, and cannot be made the foundation of a good title even under the equitable doctrine of bona fide purchase.’ ” (Erickson v. Bohne (1955) 130 Cal.App.2d 553, 557.) As Grant Deeds Nos. 1 and 2 appear void, Grant Deed Nos. 3 and 4 are also void. The burden shifts to the Defendant to show why Grant Deeds Nos. 1 to 4 are valid and should not be cancelled.

Defendant Zovinar argues that Grant Deeds Nos. 1 to 4 are valid for four reasons: 1) Plaintiff maintained authority to transfer the Property to anyone of his own choosing without the consent of the Successor Trustees of the Lermont Moukoian Living Trust; 2) Plaintiff independently and under his own free will transferred title to the Property to Harut; 3) Disputed Material issues relating to the terms of the agreement; and 4) Plaintiff’s claims are time-barred. The court disagrees and will address each argument in turn.

First, although Defendant Zovinar asserts that Plaintiff as the Trustee of the Living Trust had the authority to transfer ownership of the Glendale Property to anyone (Opp. 8-10), she cites to no evidence or legal authority in support of this assertion. She argues that because the Living Trust is revocable, Lermont retained the authority to revoke the trust at any time during his lifetime. (Prob. Code, § 15401.) However, Defendant Zovinar fails to show that Plaintiff terminated the trust pursuant to the “method of revocation provided by the trust instrument.” (Prob. Code, § 15401(a) (1-2).)

Second, Defendant Zovinar asserts that Plaintiff independently transferred the Property to Harut, and he was not unduly influenced to do so. (Opp. 10-12.) She again fails, however, to cite any legal authority to show that compliance with Successor Trustee Instructions was not required or was excused such that the transfer of Grant Deed Nos. 1 and 2 was valid. Per the express terms of the Living Trust, Harut and Plaintiff were required to obtain Anna and Patrick’s notarized approval and consent for the transfer of the Glendale Property to Harut to be valid if the transfer occurred during Plaintiff’s lifetime. The prohibition on the sale and transfer of any portion of the Trust assets without the notarized approval and consent of Anna and Patrick, as outlined in the Successor Trustee Instructions, did not apply upon Plaintiff’s death but “during my lifetime.” (Lermont Decl. Ex. 1 at p. 23, DRJN Ex. 7 at p. 23.)

As Trustee of the Living Trust, Plaintiff did not have unbridled power to dispose or transfer the Trust’s assets, including the Glendale Property. The Plaintiff’s powers as Trustee of the Living Trust are outlined in Section C. entitled “Trustee Powers” of the Living Trust. (Lermont Decl. Ex. 1 at pp. 11-16, DRJN Ex. 7 at pp. 11-16.) The Living Trust confers upon the Trustee the following rights:

To sell, at public or private sale, for cash or on credit, and upon such terms as it may deem property, any property at any time held by it. As used in this paragraph, the term “sell” shall mean and include: convey, exchange, convert, improve, repair, partition, divide, allot, subdivide, create restrictions, easements or other servitudes upon, operate and control.

Notwithstanding any other provisions of this Trust Agreement, during the lifetime of Settlor, to make one or more distributions from the Trust, from either income or principal, as annual gifts provided that as each donee, such gifts do not exceed the amount that is wholly excludable from taxable gifts under Section 2503 of the Internal Revenue Code. . . .

Here, Defendant Zovinar provided no evidence that Plaintiff’s transfer of the Glendale Property to Harut was within the Trustee’s powers to do as set out in the Living Trust. She fails to prove that the transfer of the Glendale Property was a sale for cash or credit or that Harut received the Glendale Property as a donee and in compliance with the limitations set forth in the Living Trust. Similarly, Defendant Zovinar fails to set forth any admissible evidence to show that Plaintiff’s transfer of the Glendale Property was supported by consideration or that Harut was a bona fide purchaser for value.

Third, Defendant Zovinar argues that there are disputed issues regarding the terms of the agreement between Plaintiff and Harut. She argues that the term that “after Harut and his family moved into the Glendale Property, Harut would transfer title back to Lermont” is not supported by the grant deeds he executed. (Opp. 13.) This argument is not relevant to the issue that Grant Deed Nos. 1 to 4 must be cancelled because Plaintiff’s Living Trust expressly prohibited the transfer of any Trust asserts without the notarized approval and consent to the Successor Trustees, Anna and Patrick. (Lermont Decl. Ex. 1 at p. 23; DRJN Ex. 7 at p. 23.)

Finally, Defendant Zovinar argues that all of Plaintiff’s claims are time-barred because the oral agreement between Plaintiff and Harut occurred in June 2018, but Plaintiff did not file suit until February 2, 2022. (Opp. 13-17.) “Ordinarily a suit to set aside and cancel a void instrument is governed by section 343 of the Code of Civil Procedure. [Citation.] However, when the gravamen of the cause of action stated involves fraud or a mistake, Code of Civil Procedure, section 338(4) is the statute of limitations applicable and the cause of action is not deemed to have accrued until the discovery of the facts constituting the mistake.” (Zakaessian v. Zakaessian, (1945) 70 Cal.App. 2d 721, 725.) Here, Defendant Zovinar fails to show that a four-year statute of limitations applies to Plaintiff’s first cause of action or that the cause of action is time-barred.

Plaintiff further argues that because the Grant Deeds Nos. 1 and 2 are void, so is the Deed of Trust. (See Ecrickaon, supra, 130 Cal.App.3n at p. 557.)

Although the court agrees that Plaintiff has met its burden of showing that Grant Deeds Nos. 1 to 4 should be cancelled as they are void, Plaintiff has failed to show that he is entitled to cancellation despite not seeking cancellation of the Deed of Trust recorded September 12, 2018, in which Harut as borrower obtain a loan of $370,000 with the Glendale Property being listed as collateral. (PRJN Ex. 6.) “The fact that a deed of trust conveys a more limited interest in property than a grant deed [citation] does not mean that forged documents involving that interest should be treated differently than documents involving other interests. Indeed, decisional authority relative to forged instruments other than grant deeds uniformly hold such instruments to be void.” (Wutzke v. Bill Reid Painting Serv. (1984) 151 Cal.App.3d 36, 43.) “In short, there is no reason in law or policy why the principle that forged documents should not apply to any instrument through which an interest in property is passed.” (Id. at pp. 43-44.) Here, Plaintiff alleged that Plaintiff’s transfer of the Glendale Property to Harut was invalid because the terms of the Living Trust prohibited the Transfer and Harut’s failed status as a bona fide purchaser for value who took without notice by his exercise of undue influence, fraud, and bad faith in procuring Grant Deed Nos. 1 and 2 from Lermont without consideration. (See Reply at pp. 10:20-11:5.)

While Plaintiff’s logic holds that the Deed of Trust dated September 12, 2018, is void as the Grant Deed used to obtain the Deed of Trust, is void, Plaintiff fails to show that he did not obtain a benefit from Harut’s loan, including proceeds from the loan being used to repair the Glendale Property. Plaintiff does not dispute that he knew the transfer of the Glendale Property to Harut’s name would be used to secure a loan in Harut’s name and the money would be used to help Albert and his family move out and pay for repairs and improvements on the Glendale Property. “Ordinarily, in the cancellation or rescission of contracts, it is incumbent upon the parties seeking rescission to restore everything of value that has been received.” (Weger v. Rocha (1934) 138 Cal.App.109, 116.) Because Plaintiff was aware of the benefits that would be obtained from Harut securing a loan and those benefits were received, triable issues of fact exist as whether Plaintiff may be estopped from denying the validity of the Deed of Trust. (See Wutzke v. Bill Reid Painting Service, Inc. (1984) 151 Cal.App.3d 36, 44.) This raises a triable issue of fact as to whether it would be equitable to cancel Grant Deeds 1 and 2 and render the Deed of Trust invalid.

Since Plaintiff is not seeking cancellation of the Deed of Trust dated September 12, 2018, and because Plaintiff fails to show that he did not secure a benefit under the loan obtained from the Deed of Trust or that such benefit has been “restored” the court denies Plaintiff’s request for summary adjudication as to the first cause of action because triable issues of fact exist.

Actions to quiet title are governed by Civ. Code § 761.010 et seq. A verified complaint for quiet title must contain (1) a description of the property, (2) the title of the plaintiff as to which a determination is sought and its basis, (3) the adverse claims to the title of the plaintiff against which a determination is sought, (4) the date as to which determination is sought, and (5) a prayer for determination of title. (Code Civ. Proc., § 761.020.) To prevail in an action to quiet title, the plaintiff must prove title superior to that of defendant. (Gerhard v. Stephens (1968) 68 Cal.2d 864, 918.) “A quiet title judgment cannot be entered in the absence of all parties with an interest in the property at issue.” (Ranch at the Falls LLC v. O'Neal (2019) 38 Cal.App.5th 155, 173.)

“The plaintiff may recover only upon the strength of his or her own title, however, and not upon the weakness of the defendant's title. Where the plaintiff relies on a paper title alone he must trace his title (1) to the government; or (2) to grantor in possession at the time of the conveyance to the plaintiff; or (3) to a source common to the chains of title of plaintiff and defendant. [Citations.] The burden of proof is upon the plaintiff. [Citation]” (Ernie v. Trinity Lutheran Church (1959) 51 Cal.2d 702, 706.)

“Where a complaint seeks to quiet title to real property and cancel an instrument and both claims are based on the same facts, it is said that the cancellation claim is incidental to the claim to quiet title such that the action asserts only one claim.” (Deutsche Bank National Trust Co. v. Pyle (2017) 13 Cal.App.5th 513, 523 (Deutsche Bank).) “Stated differently, a complaint alleging facts authorizing relief both to quiet title and to cancel an instrument may state but one cause of action, ‘this does not mean that the cause of action is necessarily one to quiet title. Quieting title is the relief granted once a court determines that title belongs in plaintiff. In determining that question, where a contract exists between the parties, the court must first find something wrong with that contract. In other words, in such a case, the plaintiff must show he has a substantive right to relief before he can be granted any relief at all. Plaintiff must show a right to rescind before he can be granted the right to quiet his title.’ [Citation.]” (Id. at pp. 523-524; see also Weeden v. Hoffman (2021) 70 Cal.App.5th 269, 292–293 [“The Weedens are seeking to quiet title and also to have the instrument under which Hoffman claims an interest in the Property declared void; these comprise a single cause of action”]; Leeper v. Beltrami (1959) 53 Cal.2d 195, 216 [“It is apparent that the quiet title suit was completely dependent upon plaintiffs' success in attacking the trust deed. The Court in the Thompson case was undoubtedly correct in holding that facts alleged in a complaint authorizing relief both to quiet title and to cancel an instrument state but one cause of action. That is undoubtedly the law”].)

Here, Plaintiff’s FAC alleged that Federal Home Loan Mortgage Company (“Federal Loan”) had a beneficial interest in the Glendale Property because it secured the loan provided to Harut via the Glendale Property as reflected in the Deed of Trust recorded on September 12, 2018.

On April 28, 2023, Plaintiff dismissed Federal Loan as a Defendant. A claim for quiet title is meant to “finally settle and determine, as between the parties, all conflicting claims to the property in controversy, and to decree to each such interest or estate therein as he may be entitled to.” (Yuba Inv. Co. v. Yuba Consolidated Gold Fields (1926) 199 Cal. 203, 209; Deutsche Bank Nat'l Trust Co. v. Pyle (2017) 13 Cal.App.5th 513, 524.)

Without Federal Loan as a Defendant (or the successor Trustee who holds title to the Deed of Trust), the court cannot determine all of the parties' beneficial interest in the Glendale Property. Moreover, Plaintiff fails to explain how Plaintiff can obtain the relief requested without the Cancellation of the Deed of Trust. Before entering a judgment quieting title, the court must “examine into and determine the plaintiff's title against the claims of all the defendants.” (CCP, § 764.010 [italics added].) Without a finding that Federal Loan has no valid interest in the Glendale Property or arguments as to why the Deed of Trust is void as a matter of law, the court is precluded from granting Plaintiff’s claim for quiet title. Therefore, Plaintiff has failed to meet his initial burden of showing he is entitled to a judgment for quiet title.

Therefore, summary adjudication is denied as to the fifth cause of action for quiet title.

E. Eighth Cause of Action – Return Trust Property Pursuant to Prob. Code § 850

(a) The following persons may file a petition requesting that the court make an order under this part:

(A) Where the trustee is in possession of, or holds title to, real or personal property, and the property, or some interest, is claimed to belong to another.

(B) Where the trustee has a claim to real or personal property, title to or possession of which is held by another.

“Section 850 specifically contemplates that a trustee may bring an action to recover trust property that is held by anyone other than the trustee; it does not limit recovery to a certain class of people, nor does it purport to prevent a trustee from recovering trust assets from third parties who wrongfully possess them.” (Dudek v. Dudek (2019) 34 Cal.App.5th 154, 170.)

Probate Code § 859 “unambiguously states, ‘If a court finds that a person has in bad faith wrongfully taken, concealed, or disposed of property belonging to the estate of a decedent, conservatee, minor, or trust, the person shall be liable for twice the value of the property recovered by an action under this part.’ As noted above, when it is established that property is recoverable under section 850 and that the party who took the property acted in bad faith, then the section 859 penalty may be imposed.” (Estate of Kraus (2010) 184 Cal.App.4th 103, 117.)

Here, the Plaintiff has shown that Plaintiff lacked the authority to transfer the title of the Glendale Property without the notarized consent to Anna and Patrick. (Lermont Decl. Ex. 1 at p. 23; DRJN Ex. 7 at p. 23.) Moreover, Plaintiff has also shown that Harut was not a bona fide purchase or value as Grant Deed Nos. 1 and 2 show that no consideration was provided. (PRJN Ex. 4, 5.) Moreover, Plaintiff provides evidence that on January 11, 2019, Anna informed Harut that the transfer of the Glendale Property was invalid as Anna and Patrick’s consent was required but not obtained. (Anna Decl. ¶ 15, Ex. 1.)

As Plaintiff has met his burden of showing that Defendants acted in bad faith in transferring the Glendale Property and failed to return the Property to Plaintiff’s Trust, the burden shifts to Defendant Zovinar to show why summary adjudication should not be granted.

Defendant Zovinar argues on that summary adjudication of the eighth causes of action should be denied because the claim is time-barred and the doctrine of latches applies. She fails, however, to show that Plaintiff’s eighth cause of action is barred by the doctrine of latches as she presents no evidence to show Plaintiff unjustifiably delayed in bringing this action. Moreover, CCP §§ 318 and 319 provide a five-year statute of limitations for actions involving title to or possession of real property, thus making Plaintiff’s action timely and not barred by the statute of limitations.

As Defendant Zovinar fails to show that a triable issue of material fact exists regarding the eighth cause of action, summary adjudication is granted as to this claim.

As the ninth cause of action seeks a declaration of the parties’ rights and duties regarding the title and ownership of the Glendale Property, the ninth cause of action is duplicative of the first and fifth causes of action.

Where a request for declaratory relief relies upon the same facts as a claim to quiet title and cancel a written instrument, “they will be treated as one.” (Tiedje v. Aluminum Taper Mill. Co. (1956) 46 Cal.2d 450, 452 [treating claims for declaratory relief, quiet title, and the voiding of an illegal stock sale as a single cause of action.].)

As summary adjudication was denied as to the first and fifth cause of action, the court also denies summary adjudication as to the ninth cause of action.

Plaintiff’s Motion for Summary Adjudication is granted as to the eighth cause of action and denied as to the first, fifth, and ninth causes of action.

[1] CCP § 473(a) states: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. (2) When it appears to the satisfaction of the court that the amendment renders it necessary, the court may postpone the trial, and may, when the postponement will by the amendment be rendered necessary, require, as a condition to the amendment, the payment to the adverse party of any costs as may be just.”