Judge: Michael Shultz, Case: TC029307, Date: 2022-10-04 Tentative Ruling
Case Number: TC029307 Hearing Date: October 4, 2022 Dept: A
TC029307
Sherry White v. Bank of America, et al.
[TENTATIVE] ORDER
I.
BACKGROUND
The Second Amended Complaint (“SAC”) filed on March 27, 2019,
alleges that Plaintiff purchased the real property at issue from her mother,
Charlzetta White (“Decedent”). Decedent placed Plaintiff’s name on title to the
property on August 22, 2001. On April 9, 2003, Decedent signed a quitclaim deed
in favor of Plaintiff and Defendant, Ethel Johnson (“Johnson”), and Johnson’s
husband. However, the Johnsons prepared a second quitclaim deed with the help
of a notary, Defendant R. Fontes, wherein the entire interest in the property
was conveyed only to the Johnsons and removed Decedent and Plaintiff. The
Johnsons then borrowed $110,000 and signed a Deed of Trust in favor of Bank of
America. Plaintiff alleges claims for fraud, cancellation of deed, partition of
real property, and negligence.
On December 12, 2019, the court granted Plaintiff’s counsel’s
motion to withdraw. Plaintiff is currently self-represented.
II.
ARGUMENTS
A. Motion filed July 1, 2022
Defendant,
Kelcie White, as successor-in-interest of the estate of Ethel Johnson, argues
that the SAC is barred by the statute of limitations. Defendant White avers that
the discovery rule does not apply to the claims alleged since the deeds at
issue were signed in 2003, and Plaintiff had notice of them. Plaintiff admitted signing the first deed, Plaintiff
and Decedent quitclaimed their interests in favor of the Johnsons and Plaintiff
was given a portion of the funds obtained from the refinance pursuant to a
second deed. Additionally, the
authenticity of Plaintiff’s signature on both deeds is not disputed.
Plaintiff and Decedent approached
Johnson’s husband for help in refinancing the property because Plaintiff and
Decedent did not have the necessary credit.
The Johnsons agreed to take title to the property leaving Decedent a
life estate and renegotiating the mortgage. Plaintiff and Decedent signed the
April 9, 2003, Quit Claim Deed (“First Deed”) adding the Johnsons, as joint
tenants. The First Deed was recorded on April 16, 2003.
The June 25, 2003, Quit Claim Deed
(“Second Deed”) was signed by Plaintiff and Decedent in favor of the Johnsons
as joint tenants. Plaintiff knew of the Second Deed and the transfer of her interest
in the real property since she signed it. The authenticity of Decedent’s signature on
either deed is no longer at issue since she died in 2006, and Plaintiff has not
taken any steps to continue the action on behalf of Decedent as
successor-in-interest.
B.
Opposition filed September 16,
2022
Plaintiff argues the First Deed is
the only true deed wherein Plaintiff, Decedent, and the Johnsons are joint
tenants. She was not aware of the Second Deed conveying the property to the
Johnsons alone, since the deed was mailed to Defendant’s address. Plaintiff
discovered the Second Deed when Defendant attempted to evict her and her family
from the property. The Second Deed is fraudulent as it was not notarized.
Plaintiff claims title by adverse possession and on grounds the Second Deed is
fraudulent.
C. The court’s file does not reflect that Defendant filed a reply
brief.
III.
LEGAL STANDARDS
Summary judgment is proper “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 judgment as a matter of law.” Code Civ. Proc. §437c subd. (c).
Where a defendant seeks summary judgment or adjudication, defendant must show
that either “one or more elements of the cause of action, even if not
separately pleaded, cannot be established, or that there is a complete defense
to that cause of action.” Id. at §437c(p)(2). 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.” Id.
Until the moving defendant has
discharged its burden of proof, the opposing plaintiff has no burden to come
forward with any evidence. Once the moving party has discharged its burden as
to a particular claim, however, the plaintiff may defeat the motion by
producing evidence showing that a triable issue of one or more material facts
exists as to that cause of action. Code
Civ. Proc., §437c(p)(2).
The court applies the three-step
analysis to motions for summary judgment or 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 material facts establishing Plaintiff’s
knowing transfer of the real property in 2003 are undisputed. UF 1-6. Plaintiff
and Decedent added the Johnsons to title pursuant to the First Deed and later divested
their interests in favor of the Johnsons pursuant to the Second Deed (Quit
Claim Deed). Plaintiff authenticated her signature on the First Deed. UF 6.
There is no dispute that Plaintiff
signed the Second Deed and the Notary Journal in June of 2003. UF 7-9.
Plaintiff authenticated her signature in the Notary’s Journal. UF 10-13. Mr.
Fontes affirms that he witnessed Plaintiffs’ signatures on the Second Deed and
Notary Journal. UF 24.
The statute of limitations for a
fraud claim is three years from the date the aggrieved party discovers facts
constituting the fraud. Code Civ. Proc., § 338, subd. (a)
and (d). The facts are undisputed that Plaintiff signed the Second Deed that
divested her of her interests, which undermines Plaintiff’s claim that the Second
Deed was obtained by fraud. Accordingly,
Defendant has met her burden of establishing she is entitled to Judgment in her
favor. The burden shifts to Plaintiff to submit evidence controverting the
material facts. Code Civ. Proc., § 437c, subd.
(p)(2).
Plaintiff’s opposition is
procedurally defective. Plaintiff did not submit an opposing separate statement
of facts or any evidence supporting Plaintiff’s contentions. Opposition papers “shall
include a separate statement that responds to each of the material facts
contended by the moving party to be undisputed and indicating whether the
opposing party agrees or disagrees that those facts are undisputed. The
statement also shall set forth plainly and concisely any other material facts
that the opposing party contends are disputed. Each material fact contended by
the opposing party to be disputed shall be followed by a reference to the
supporting evidence. Failure to comply with this requirement of a separate
statement may constitute a sufficient ground, in the court's discretion, for
granting the motion.” Code Civ. Proc., § 437c subd. (b)(3).
The opposing separate statement
must also conform to format requirements. An opposing party who contends that a
fact is disputed must state, on the right side of the page directly opposite
the fact in dispute, the nature of the dispute and describe the evidence that
supports the position that the fact is controverted. Citation to the evidence in
support of the position that a fact is controverted must
include reference to the exhibit, title, page, and line numbers. Cal. Rules of Court, rule 3.1350
The court has discretion to grant
or deny summary judgment motion based upon a failure to file a separate
statement. It is only in the “truly exceptional case involving a single, simple
issue with minimal evidentiary support that a court will consider the merits of
a motion unaccompanied by a separate statement.” United Community Church v. Garcin, 231 Cal.App.3d 327, 335. The court also has discretion to continue the hearing to permit
the filing of code-compliant papers. Id.
V.
CONCLUSION
Based on the foregoing, the court
continues the hearing to November 17, 2022 at 8:30 a.m. in Department A of the
Compton courthouse. Plaintiff shall file an opposition and separate statement
with accompanying evidence that conforms with the rules described above. The
opposition and separate statement shall be filed 14 calendar days before the
continued hearing date. Defendant may file a reply brief seven calendar days
before the continued hearing date.