Judge: Peter A. Hernandez, Case: KC070151, Date: 2024-02-06 Tentative Ruling

Case Number: KC070151    Hearing Date: March 4, 2024    Dept: K

Background   

Plaintiff Guadalupe Payan (“Plaintiff”) alleges as follows:

Plaintiff and her late husband, David M. Payan (“David”), owned the real property located at 1612 Millet Avenue, El Monte, CA 91733 (“subject property”). David and Plaintiff transferred title to the subject property into their trust via a quitclaim deed recorded December 20, 1994. David died on November 17, 1995. Plaintiff caused to be recorded an Affidavit—Death of Trustee on July 17, 2008. On April 4, 2008, Plaintiff’s daughter, Patricia Garrett (“Patricia”) and Patricia’s husband, Benjamin R. Garrett (“Benjamin”), took Plaintiff to an office to sign a document in English. Plaintiff speaks and reads Spanish. Plaintiff did not know that the document she signed that day transferred the subject property from the Trust to Patricia. Patricia has listed the subject property for sale.

On March 26, 2018, Plaintiff filed a complaint, asserting causes of action against Patricia, Benjamin and Does 1-10 for:

1.                  Quiet Title

2.                  Financial Elder Abuse

3.                  Fraud

4.                  Cancellation of Written Instrument

5.                  Constructive Trust

On August 29, 2018, Plaintiff dismissed Benjamin and Does 1-10, without prejudice.

On October 16, 2019, Plaintiff and Patricia entered into a “Stipulation Re Settlement.” On September 22, 2020, an “Order on Motion to Enforce Settlement Agreement, Appoint Court Clerk to Sign Document on Behalf of Defendant” was entered.

Legal Standard

“Every court shall have the power to do all of the following: . . . To compel obedience to its judgments, orders, and process, and to the orders of a judge out of court, in an action or proceeding pending therein.” (Code Civ. Proc., § 128, subd. (a)(4).)

Discussion

Plaintiff moves the court, pursuant to Code of Civil Procedure § 128, for an order appointing the clerk of court, or the clerk’s designee, as an elisor for the purpose of signing, on Patricia’s behalf, a grant deed transferring title to the subject property to Plaintiff.

The motion was originally scheduled for hearing on February 6, 2024; no appearances were made. At that time, the court adopted its tentative ruling and continued the hearing to March 5, 2024.

The court’s tentative ruling read as follows:

It appears to the court that Plaintiff’s declaration should have been executed

in Spanish, accompanied by an English translation certified under oath by a

qualified interpreter, based on Gutierrez’s representation that Plaintiff “is

solely Spanish speaking. [] The court further notes that Paragraph 6 of Plaintiff’s verified complaint filed March 26, 2018 alleges that Plaintiff did not understand certain documents ‘because they were in English’ and that ‘Plaintiff speaks and reads Spanish.’ The court will request clarification in this regard from Gutierrez at the time of the hearing.

Based on the foregoing, the court is inclined to continue the hearing to March 5, 2024 at 9:30 a.m.

Gutierrez is instructed to bring the original grant deed attached as Exhibit “3” to the court at the time of the continued hearing. Gutierrez is to provide notice.

(Order, Filed February 26, 2024.)

The court’s order was prepared prior to the court’s receipt of Patricia’s untimely opposition. The court has since reviewed Patricia’s opposition, which requests that the court order both parties to execute the deed required of them under the Settlement Agreement. (Opp., 2:17-18).

The Settlement Agreement provides, in relevant part, that Patricia is to execute a grant deed to Plaintiff and that Plaintiff is to execute a grant deed to Sally Marie Payan, David Payan Rubio, Maria Guadalupe Castro, Gloria Rendon, Jesus Javier Payan, Rosa Maria Aguilar, Leticia de Jesus Zavala, Patricia Elizabeth Garrett, Carmen Hernandez and Nery Gilda Hernandez as joint tenants with equal interests, with Plaintiff reserving to herself a life estate therein. (Beauchamp Decl., ¶ 3, Exh. A.) The Settlement Agreement further provides that the aforesaid deeds are to be recorded “at the same time.” (Id.)

Patricia cannot request affirmative relief in her opposition. Patricia, however, proffers that “[t]he simple solution to have both parties execute the deeds they agreed to in the October 16, 2019, settlement in the forms attached hereto as Exhibit “B” and “C” respectively and to deliver them to Defendant’s counsel to ensure that they are recorded consecutively as both parties agreed.” (Opp., 2:25-28). The court will hear further from the parties at the time of the hearing to determine whether or not they would be willing to informally resolve Plaintiff’s motion in this fashion.