Judge: Michael Shultz, Case: TC029135, Date: 2022-07-27 Tentative Ruling
Case Number: TC029135 Hearing Date: July 27, 2022 Dept: A
TC029135
CARDOZA, ET AL V. MARTINEZ, ET AL
[TENTATIVE] ORDER
I.
BACKGROUND AND PROCEDURAL FACTS
The Second Amended Complaint
(“SAC”) filed on March 3, 2022, alleges that the residential real property at
issue belonged to Plaintiffs’ parents, Jose Munoz (“Father”) and Olivia Munoz
(“Mother”) (collectively “Parents”), who subsequently transferred the real
property to Plaintiff, Jesus Diaz Munoz, and his sister Andrea Munoz Gonzalez.
Defendant, Martha Munoz Martinez (“Martha”), Plaintiffs’ sister, was placed on
title in 1995 to facilitate a loan.
Plaintiffs allege
that a July 2005 deed purporting to transfer the property from the Parents to
Martha and her husband void because Father’s signature was forged and not
notarized. Plaintiffs allege nine causes
of action including claims for: quiet title, fraud, and for cancellation of
instruments.
The court originally heard this
matter on June 2, 2022 but continued the hearing to allow Defendants controvert
Plaintiffs’ forgery allegations with admissible evidence. The court also asked
the parties to provide additional briefing addressing whether the claim for
forgery required proof of fraudulent intent. The additional briefing is
addressed below.
II. MOTION FOR SUMMARY ADJUDICATION OF ISSUES
A.
Plaintiffs’ Motion filed March 8,
2022
Plaintiffs move to adjudicate the
sixth cause of action for cancellation of written instrument against
Defendants, Jose Jesus, Martha, and Alvino Rodriguez, (Doe 1) (collectively,
“Defendants”). Plaintiffs argue there is no dispute that Father’s signature on
the 2005 deed transferring title to Martha and her husband is a forgery. Only Mother’s
signature was notarized. The notary’s log does not contain an entry for Father.
Plaintiffs’
second issue for adjudication seeks a determination of the parties’ interests
in the property once the 2005 deed is cancelled. Prior to the 2005 deed, title
in the property was held by Mother, Father, Jose Jesus, and Martha all as joint
tenants. Mother’s transfer of her one-fourth interest in the property severed
the joint tenancy, resulting in Father retaining his one-fourth interest, while
Jose Jesus and Martha each held .375 interest. As Father’s interest was not
held in a trust, his interest should be probated.
B.
Opposition filed May 19, 2022
Defendants argue
that Plaintiffs have not met their initial burden of establishing that Father’s
signature is a forgery. Moreover, the SAC is defective because Plaintiffs did
not join necessary parties who are seven of the nine Munoz siblings. Whether
Father’s signature was forged is a triable issue because the 2005 transfer was
made with all the family’s consent. Plaintiff, Pablo Cardoza, (“Pablo”), has
not established that he is entitled to contest the 2005 deed since he has not
proven that he is Father’s child.
Defendants
contend that the claim for cancellation of the 2005 deed is barred by the
statute of limitations. Plaintiffs lack standing to sue because Father and
Mother transferred title to Martha in 2005. The second issue to be adjudicated
is not a proper issue for adjudication as it does not dispose of the entire
cause of action.
Defendants also
ask for a continuance of the hearing to conduct discovery essential to dispute
the issue that Father’s signature is a forgery.
C.
Supplemental Opposition
Defendants contend that Plaintiffs
do not have evidence that Father’s signature was forged. Plaintiffs’ expert did
not testify that the signature was forged, rather the expert opined that the
signature did not appear to be Father’s.
Martha did not add Father’s signature. She believes the signature on the
deed is her Father’s.
The court previously rejected
Defendants’ evidence which Defendants ask the court to reconsider. Defendants
argue that the parents’ statements indicating their intent to transfer title to
Martha and her husband are admissible as statements against their own
interests.
To cancel the deed, Plaintiffs
must prove that the deed is voidable because of the forgery. However, Plaintiffs have not proffered
evidence to prove it. To establish a forgery, Plaintiffs must provide evidence
of a fraudulent intent. Regardless, it is a triable issue of fact since Martha
and her siblings attest that the signature is authentic.
The claim for cancellation is
subject to the three-year statute of limitations and laches which Defendants
raised as an affirmative defense. Plaintiffs did not negate these defenses.
Plaintiffs argue
that Defendants have not produced any admissible evidence to controvert
Plaintiffs’ expert declaration establishing that Father’s signature is forged.
Rather, Defendants rely on speculation that Father authorized someone else to
sign his name. There is no evidence to controvert the fact that only one
signature appears in the notary’s journal.
Plaintiffs argue
that the court determined that Plaintiffs’ claims are not barred by the statute
of limitations after sustaining Fidelity National Title’s demurrer to the
complaint on September 6, 2018. Damages and issues of probate are not relevant
to this motion. Plaintiffs argue they are not required to join siblings because
who stands to inherit is not the issue. Plaintiff Pablo’s paternity is also not
relevant. This is an issue for probate where the court will determine
inheritance issues. Plaintiffs argue that Defendants have had four years to
conduct discovery since Plaintiffs filed the complaint. All discovery has been
completed.
E.
Plaintiffs’ supplemental reply
filed on July 15, 2022
Plaintiffs argue that Defendants
failed to provide expert testimony to controvert Plaintiffs’ evidence that
Father’s signature was forged. The court gave Defendants time to prepare a
supplemental opposition in order to obtain expert evidence. Defendants cannot
dispute the expert’s declaration with testimony from lay persons. Defendants
also do not dispute that Father’s signature is not contained in the notary’s
log.
Plaintiffs contend that Defendants’
intent to defraud is established by their conduct once the 2005 deed was
recorded. Defendants immediately took out a $51,000 loan secured by the real
property because they were having financial distress. Financial gain
establishes their intent. Father refused to refinance which is why Defendants
forged his name. What Defendants believe Father intended to do is irrelevant.
Defendants are not entitled to
reconsideration of the court’s ruling on objections. This is an improper request. Statements
attributed to the parents are inadmissible hearsay. The court has already
rejected Defendants’ contention that the claims are barred by the statute of
limitations.
III.
LEGAL STANDARDS
A party can move for summary
adjudication as to one or more causes of action within an action or one or more
claims for damages if the party contends that there is no affirmative defense
to any cause of action. A motion for summary adjudication shall be granted only
if it completely disposes of a cause of action, an affirmative defense, a claim
for damages, or an issue of duty. Code Civ. Proc., § 437c(f)(1).
In ruling on the motion, the court
considers the material issues defined by the allegations of the complaint. Lewinter
v. Genmar Industries, Inc. (1994) 26 Cal.App.4th 1214, 1223. As the moving
parties, Plaintiffs’ burden is to prove each element of the claim. If that
threshold burden is met, the burden shifts to Defendants to show a triable
issue of one or more material facts as to that defense. Code Civ. Proc.,
§437c(p)(1). The court strictly construes the moving party’s evidence and
liberally construes those of the opposing party. All doubts are resolved in
favor of the opposing party. Stationers Corp. v. Dun & Bradstreet, Inc.
(1965) 62 Cal. 2d 412, 417.
The court applies the
three-step analysis to motions for summary judgment/ adjudication: (1) identify
the issues framed by the pleading, (2) determine whether the moving party
established facts which negate the opponents’ claim, (3) if a defendant meets
its threshold burden of persuasion and the burden shifts, determine whether the
opposing party has controverted those facts with admissible evidence. Torres
v. Reardon (1992) 3 Cal.App.4th 831, 836.
IV. DISCUSSION
The court grants
Plaintiffs’ request for judicial notice (“RJN”) of the 2005 Grant Deed, the
2005 Notary Pages, the 1996 Grant Deed, and Father’s death certificate. Evid.
Code, § 452(c) [permits judicial notice of official acts of state or federal
agencies]. The court also grants judicial notice of a 2004 Deed of Trust and a
2005 Deed of Trust recorded against the property. Plaintiff’s Supp. RJN.
Declarations of Martha, Ruby Munoz Aquirre, and Oscar Munoz.
#1, 3. Sustained. Lacks foundation. Proper parties to an action
and the issue of joinder is a question of law.
#2. Sustained. Lacks foundation. Irrelevant. The proper heirs and
their potential interests in the real property is a legal question.
#4, 10, 13. Sustained. Speculation, lacks foundation as to what
the siblings believed about Plaintiff Pablo’s paternity. Hearsay as to what
father said. Irrelevant.
#5, 11 Sustained. Lacks foundation and irrelevant as to the equity
in the home and hearsay as to what the Parents conveyed to Martha.
#6, 12 Sustained. Hearsay and irrelevant as to what siblings told
Martha.
#7. Sustained. Lacks foundation as to what other people allegedly
knew about the 2005 transfer.
#8, #14. Sustained. Speculation, lacks foundation, hearsay, as to
what Father authorized.
#9. Sustained. Lacks foundation and hearsay as to what Plaintiffs
“reasonably should have known” about the 2005 transfer of title based on
“discussion” with family members.
The court denies Defendants’
request to reconsider these objections. The court also declines to consider the
new declarations of Martha, Ruby, and Oscar, filed on June 30, 2022, since the
court limited new evidence to submittal of Defendants’ expert declaration,
which was not submitted.
An “instrument” is a “written paper
signed by a person or persons transferring the title to, or giving a lien on
real property, or giving a right to a debt or duty. (Gov. Code § 27279.)” Bank
of America v. Greenbach (1950) 98 Cal.App.2d 220. A written
instrument may be cancelled if there is a reasonable apprehension that if left
outstanding, it may cause serious injury to a person against whom it is void or
voidable. Civ. Code, § 3412. Cancellation
is essentially a request for rescission that places the parties where they were
before the instrument was made. Deutsche Bank National Trust Co. v. Pyle
(2017) 13 Cal.App.5th 513, 523.
A
deed is “void” if "the grantor's signature is forged or if the grantor is
unaware of the nature of what he or she is signing." Schiavon v.
Arnaudo Brothers (2000) 84 Cal.App.4th 374, 378. A “forgery” is defined as
“a writing which falsely purports to be the writing of another and is executed
with the intent to defraud." Id. at 382. Accordingly, intent to
defraud is an element of forgery. People v. Franco (2018) 6 Cal.5th 433,
439 [“Forgery, at common law, is the false making or materially altering, with
intent to defraud, of any writing which, if genuine, might apparently be of
legal efficacy, or the foundation of a legal liability.”]. Forged or altered deeds are void instruments and “cannot ordinarily
provide the foundation for good title even in the hands of an innocent
purchaser, as where a deed has been forged or has not been delivered.” Firato
v. Tuttle (1957) 48 Cal.2d 136, 139.
Plaintiffs have
not met their burden of establishing that the 2005 deed was forged to include
Father’s signature without his consent. Plaintiffs have not proffered material
facts to establish Martha’s intent to defraud, which is a necessary element. In
Plaintiffs’ supplemental reply, Plaintiffs concede that intent to defraud is a
necessary element of the claim; Plaintiffs argue that Martha’s intent is
reflected by her motivation for financial gain. Supp. Reply 4:3 – 4:3.
Plaintiffs were not permitted to correct their prior failure to establish
intent by adding this additional evidence to supplement their initial separate
statement. The court continued the hearing to establish whether intent was a
necessary element of forgery, and to permit Defendants to controvert
Plaintiffs’ expert declaration. Defendants did not proffer any expert evidence
with their supplemental opposition. However, that failure does not warrant
granting the motion since Plaintiffs did not meet their initial burden of
establishing intent to defraud.
To reiterate, Plaintiffs attempt
to establish forgery with three material facts: That Father did not sign the 2005
deed (UF 1), that Father’s signature does not appear in the notary’s official
records (UF 2), and only one signature was notarized (UF 3). Plaintiffs submit
the recorded 2005 deed bearing Father’s signature and the official journal of
the notary reflecting that only Mother’s signature was notarized. Both records
are public records certified by the Los Angeles County Recorder.
Without any
material facts establishing fraudulent intent, the court cannot adjudicate the
sixth cause of action for cancellation of instruments. Even if the court were
to consider the additional evidence of financial gain submitted with
Plaintiffs’ supplemental reply, Martha declares that her motivation for taking
ownership of the property was to save the house from foreclosure. Declaration
of Martha Munoz, ¶ 6. She declares that both parents signed the deed
transferring the property to her. Id. ¶ 7. Therefore, the intent element
is a triable issue of fact.
Although the first tentative
ruling was not adopted by the court, the supplemental briefing does not affect
the court’s determination that the effect of cancellation cannot be summarily
adjudicated. As previously stated, a
motion for summary adjudication shall be granted only if it completely disposes
of a cause of action, an affirmative defense, a claim for damages, or an issue
of duty. Code Civ. Proc., § 437c(f)(1). What Plaintiffs seek is declaratory 00relief,
which was not raised in the moving papers.
Plaintiffs alleged
a ninth cause of action for declaratory relief, however, the remedy sought is
to return title to Father, and a declaration that Plaintiffs’ interests
supersede that of Wilmington (holder of the first trust deed), which is not
what Plaintiffs seek in Issue 2 for adjudication. Issues which are material to
a motion for summary adjudication are determined by the complaint. Lewinter v. Genmar Industries, Inc. (1994)
26 Cal.App.4th 1214, 1223.
Defendants’
procedural arguments with respect to joinder of necessary parties, standing to
sue, and Pablo’s paternity are irrelevant to the issues raised by Plaintiffs in
their sixth cause of action. Therefore, the court does not address these
issues. Since Plaintiffs did not meet their initial burden, the court does not
determine whether a continuance of the hearing is warranted.
Lastly,
Plaintiffs’ supplemental reply contends that the defense of the statute of
limitations “has already been ruled upon by this Court and said ruling is res
judicata and cannot be revisited here.” Supp. Reply, 5:23-24. While Judge Long
previously did not consider Defendants’ argument regarding the statute of
limitations, upon further consideration, the defense is material to this
motion. Plaintiffs cite to the Hon. Maurice Leiter’s ruling of September 16,
2018, sustaining Fidelity National Title Company’s demurrer to the complaint. See
Min. Ord. 9/16/18. That demurrer related to a prior version of the pleading. It
has been superseded by the filing of the SAC on 3/3/22. Fireman's Fund Ins.
Co. v. Sparks Construction, Inc. (2004) 114 Cal. App. 4th 1135, 1144. [“It
is well established that an amendatory pleading supersedes the original one,
which ceases to perform any function as a pleading.”].
The court’s
docket also reflects that on September 10, 2019, the Hon. Gary Tanaka heard and
denied Plaintiffs’ Motion for Summary Judgment or Adjudication of the First
Amended Complaint. Judge Tanaka denied the motion in part because Plaintiffs
failed to negate the statute of limitations defense. Min. Ord. 9/10/19, page 3,
subpart (c).
Ordinarily, it is
not the plaintiff’s initial burden to disprove affirmative defenses asserted by
defendant. Code Civ. Proc., § 437c(p(1). Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 853 ["For example, summary judgment law
in this state no longer requires a plaintiff moving for summary judgment to
disprove any defense asserted by the defendant as well as prove each element of
his own cause of action."]. A proper function of the reply is to respond
to the opposing party’s statement of additional disputed facts by demonstrating
why these additional facts do not undermine the material facts set forth in the
moving papers. Weil & Brown, Cal. Practice Guide: Civil Procedure Before
Trial (The Rutter Group 2022) § 10:220.5. However, if defendant raises the
statute of limitations defense in its opposition, the moving party must address
this issue with additional responsive evidentiary facts in the reply. Id.,
§ 10:235.
Defendants argued
in opposition that Plaintiffs knew about the 2005 deed for the past 17 years,
therefore, their claims are barred by laches and the statute of limitations.
Opp. 18:2-9. Additionally, Defendants asserted the statute of limitations as
the 15th affirmative defense and laches as the 19th
affirmative defense. Answer filed 4/5/22, 9:19-22, 10:14-18.
The applicable statute of
limitations for a particular claim depends on the nature of the cause of action
i.e., the gravamen of the action. Hensler v. City of Glendale (1994) 8
Cal.4th 1, 22. The claim for cancellation is based on a forgery, “a species of
fraud,” which is governed by the three-year statute of limitations. O'Bryan
v. Superior Court of Los Angeles County (1941) 18 Cal.2d 490, 497. The
claim does not accrue until the discovery of the facts constituting the fraud
or mistake. Code Civ. Proc., § 338(d). Plaintiffs’ failure to persuasively
address this issue negating the defense is a separate ground for denial of the
motion.
V.
CONCLUSION
As
Plaintiffs have not met their threshold burden, the burden does not shift to
Defendants to show a triable issue of one or more material facts as to that claim.
Code Civ. Proc., §437c(p)(1). Therefore, the motion is DENIED.