TENTATIVE RULING AND TENTATIVE STATEMENT OF DECISION

Date:          3/13/2024 

Case No: 20 GDCV00558  

Case Name: Ali v. Tipu

MOTION FOR JUDGMENT PURSUANT TO CCP 631.8

AND

TENTATIVE STATEMENT OF DECISION 

PURSUANT TO CCP 632

Moving Party:            Defendant and Cross-Complainant Sultan Tipu      

Responding Party: Plaintiff and Cross-Defendant Mohammad Ali      

RELIEF REQUESTED:

INTRODUCTION

Thereafter, the court set a hearing for preliminary briefing on the merits of the motion. The court determined that the motion had merit and ordered a full briefing on the merits of the defendants’ motion. In the interim, the court set a briefing schedule and closing argument date. This ruling represents both the court’s ruling on the defendants’ CCP 631.8 motion and the court's statement of decision required pursuant to CCP 631.8(a).) 

Plaintiffs called the following witnesses at trial: plaintiff Mohammad Ali, Mohammad Alam, Jeff Davani, and defendant Sultan Tipu pursuant to EC 776. Defendant Tipu is now known as Sultan by first name.

The court will be making credibility findings on this motion.  As a result, the court’s ruling on the defendants’ CCP 638.1 motion also will be a de facto decision on the merits as if the court had denied the motion. This unusual procedural posture resulted from the plaintiff calling as witness in plaintiff’s case in chief, Tipu, the defendant, pursuant to EC section 776. This trial tactic allowed the defendant to present defendant’s defense of the case during the presentation of the plaintiff's case given the far-ranging cross examination in which the plaintiff’s counsel engaged when Tipu was on the witness stand.

THE PARTIES

PRETRIAL PROCEDURAL POSTURE AND STATUS OF PLEADINGS

CAUSES OF ACTION: from First Amended Complaint   

1) Imposition of Resulting Trust 

2) Quiet Title 

CAUSES OF ACTION: from Cross-Complaint 

1) Partition of Real Property and Accounting 

2) Conversion 

On September 28, 2023, plaintiff and cross-defendant Ali filed an Election of Affirmative Defenses, electing Affirmative Defenses Numbers 2, 3, 7, 8, 9, 10, 11 and 14 contained in his First Amended Answer to Cross-Complaint.  Those defenses are: 2- statute of limitations (CCP sections 337, 338, 339, 340, 343 ), 3- resulting trust, 7- waiver, estoppel and laches, 8- unclean hands, 9- offset of damages, 10- consent, 11- relief sought would work substantial hardship on cross-defendant relative to the benefit cross-complainant would gain, and 14- contribution if partition is ordered.  The court notes that plaintiff’s election of defenses, as a cross-defendant is not relevant for tis motion because the court has bifurcated the cross-complaint for a second trial in Phase II of this litigation.

On October 2, 2023, defendant Tipu filed his Election of Affirmative Defenses, electing Affirmative Defenses Numbers 1, 2, 3, 4, 5, 6, 7, 10, 11 and 13.  Those defenses, from the Answer to the FAC, are: 1- failure to state facts sufficient to state a cause of action, 2- lack of capacity based on medical status, diagnosis, and history, 3- unclean hands, 4- express and/or implied waiver, 5- own actions stop from seeking relief, 6- own acts or omissions of those of third parties/intervening or superseding causes, 7- failure to mitigate damages, 10- unjust enrichment, 11- violation of presumption in Evidence Code section 622 that title to the property is held based on the deed, and 13- statute of frauds. 

SUMMARY OF RELEVANT FACTS

The evidence at trial established that in the Fall of 1995, Ali and Tipu's mother was a tenant at the subject property located at 715 N. Jackson Street, Glendale, California 91206. The property is a four-unit apartment building and sometimes herein after will be referred to as “Subject Property” or the “Property.”  During this same time frame, Ali was living with Tipu in Tipu's apartment, which was located right next door to the Subject Property. Tipu was visiting his mother, who lived at the Property, one day in early December 1995. During that visit, a representative from the bank knocked on her door and informed her that the Property was foreclosed and that no further rent payment should be made to the landlord/property owner, who was then living upstairs. Tipu inquired about the foreclosure process and what to do if the family was interested in purchasing the subject property. 

Discussions among Ali and Tipu's family then took place about purchasing the property. According to Tipu, Ali and Tipu agreed that they would purchase the property together as equal partners/owners. Ali testified that he paid $6,000 from his own money to Mr. Davani with the loan application. Tipu gave Ali $7,000 to be used towards the deposit when escrow opened. Tipu testified that he gave Ali $30,000 to be used towards the final down payment at the close of escrow. Mr. Davani was a friend of Ali’s and a real estate agent who assisted Ali and Tipu in purchasing the Property. The owner of the Property was World Savings Bank. The parties opened escrow on the Property on December 27, 1995. The escrow documents and offers and counteroffers showed both Ali and Tipu as purchasers of the Property. See Exhibits 2 and 5.

The purchase of the Subject Property closed escrow on February 21,1996. There was a deed of trust from the lender and the corporate grant deed both being recorded on February 21,1996. Exhibit 104. The bank provided a 30-year loan at 7.75% interest rate in both Ali and Tipu's names as co-borrowers in the amount of $208,000.00. See Exhibit 5. The grant deed and the first deed of trust were recorded with the LA County Recorder's office in both Ali's name, as an unmarried man, and in Tipu's name, as an unmarried man, both as joint tenants. Exhibits 104 and 105. Both Ali and Tipu were now joint record owners of the Property subject to all the benefits and liabilities that accompany the title. 

Since Tipu lived next door to the subject property and Ali was unemployed for various reasons, it was agreed between them that Ali would be employed as the property manager, live at the subject property and be responsible for all management duties of the property including collecting all rents, taking care of all maintenance issues and paying all bills from the collected rents. During the time frames when rent was insufficient to cover the mortgage, Tipu contributed funds necessary to make the mortgage payments. The collection of all rents and the payment of all expenses related to the Subject Property was paid from a joint bank account in the names of both Ali and Tipu. Sometime in 2002, after Ali's wife moved to the United States, Ali removed Tipu's name from the joint bank account and added his wife on the account. To date, all rents collected by Ali and all expenses paid by Ali are still from this same joint bank account.

As stated, in 1995, Plaintiff Ali was a tenant at the property next door to the Property. In 1996, the Property) was foreclosed upon and thereafter plaintiff decided to attempt to purchase the Property as part of a family endeavor. Plaintiff obtained the help of a real estate broker, Jeff Davani, to purchase the Property. Davani testified that, after a review of plaintiff’s bank statements, Davani advised plaintiff that he had some financial resources, but that he would need to find a co-signer to help him purchase the Property because Ali was not employed at that time and had no source of income. The bank would not make a loan without a source of steady income for the monthly loan installment payments. Ali then asked his brother, defendant Tipu, who was employed and had a steady source of income, for assistance to obtain the loan. Tipu agreed to help plaintiff purchase the Property by becoming a co-signor on the loan. 

Prior to the purchase of the Property in 1996, Ali testified that Ali and Tipu orally agreed that Ali was the 100% owner of the property, and that Tipu was in the transaction solely for the purposes of obtaining the credit for the purchase money loan. Ali testified that the bank supposedly required that Tipu be on title since Tipu was a co-borrower on the mortgage. Ali implied that he did not want to have Tipu on title or on the loan, but that the bank “forced” Tipu to be on title and a cosigner on the bank loan as a requirement for approval of the loan.

Ali testified that Ali and Tipu further agreed that Ali would pay for everything, including the down-payment, insurance, and the monthly mortgage payments. Ali’s payment of all the expenses on the Property would come from the revenue generated from rental income from the apartment units, including rent paid by the parents, who occupied one of the units.  

Ali also testified that he and Tipu also agreed that Ali was the sole owner of the Property, and thus Ali was entitled to all rents therefrom, and that, in the future, defendant Tipu would remove his name from the title on the Property. Ali testified that he, in February of 1996, with 100% his own money, made the payment of $51,500.00 as the down payment toward the purchase price of the Property. The Property was acquired by Ali and Tipu for the purchase price of $260,000.00. The balance of the purchase price was secured by a Deed of Trust dated February 26, 1996, in the amount of $208,000.00. Tipu was a co-signer on the loan secured by the Deed of Trust, and, as a result, was placed on title by the mortgage lender as a joint tenant, allegedly at the bank’s insistence.

On or about February 21, 1996, Escrow closed regarding Ali's and Tipu’s purchase of the Property. The Corporation Grant Deed was recorded on February 21, 1996, transferring title of the Property to Ali and Tipu as joint tenants See Exhibits 104 and 105. From the date of the purchase of the Property in 1996, through the present, Ali paid most of the $ 1,490.14 monthly mortgage payments for the Property, plus all other expenses including taxes, insurance, maintenance, and improvements. However, Tipu did make some of the mortgage payments when Ali fell behind on the payments. After escrow closed in 1996, Ali began to live at the Property and still lives at the Property. 

The source of the funds for the downpayment is disputed. Ali claims that he paid 100% of the downpayment consisting of an earnest money payment of $6,000.00 upon opening escrow and the remainder of the downpayment totaling $51,500.00 upon the close of escrow, all from his own funds. Ali points to Exhibit 4, which is a copy, not the original, of an escrow trust receipt showing that this amount [the $51,500.00] was received from Ali on February 20, 1996. The receipt does not show the source of the funds, only that Ali presented the funds. Similarly, the escrow statement (Exhibit 5) in the names of both Ali and Tipu, shows an “Initial Deposit” of $51,500.00, but does not indicate any source of the funds such as a bank account, check or cashier’s check.  

Even though Ali was unemployed at the time of the purchase of the Property, he claimed that he had a bank account containing about $100,000. He testified and presented documents showing bank accounts from the early 1990’s with amounts of about $30,000 and $50,000, but the court excluded the documents related to the bank accounts as inadmissible hearsay and without foundation or authentication. Ali testified that in the early 1990’s he purchased a one-third interest in Tommy’s Burgers, which he managed, for the price of $30,000, which he later sold. He testified that he used those funds to purchase inventory from a warehouse as part of the Dollar Warehouse operations, where he worked as a manager. He testified that he bought the inventory for $30,000 and sold it in January 1994 for $65,000 for a profit of $35,000. Ali did not provide any documents or witnesses who supported or confirmed any of this testimony concerning the source of his funds to pay the entire down payment.

Tipu testified that he paid $37,000 of the $51,500 downpayment from his own funds. Tipu stated he gave $7,000 to Ali to make the earnest money payment before the closing and paid an additional $30,000 upon the closing of the transaction for a total of $37,000. Tipu testified that the $7,000 payment was from his personal savings. Tipu was gainfully employed at the time. Tipu testified that in early 1996 as the transaction for the purchase of the property was progressing, he borrowed $30,000 as a non-recourse loan from his cousin in Bangladesh, Shamir Shofar, and used family property in Bangladesh as collateral for the loan.  Tipu did not provide any documents or witnesses who supported or confirmed any of this testimony concerning the source of the funds to pay for the $37,000 he claims he contributed to the down payment.

Ali testified that the agreement that he had with Tipu was that Tipu would in the future remove himself from title to the Property such that Ali would be 100% owner of the Property. Supposedly Tipu was only on title to the Property so that Ali would qualify for the loan to purchase the Property with Tipu having no right to title or any other ownership interest. Tipu in testimony denied that he and Ali ever had any such understanding when the Property was purchased. 

Ali testified that on three separate occasions he demanded that Tipu remove his name from the loan and title to the Property, but Tipu never did. The first demand took place in February 1999. Ali claimed that his oral agreement made in 1995 with Tipu was that once Ali got a job, which allegedly occurred in February 1999, Tipu would remove his name from title and the loan. Ali testified that after he got that job in 1999, he demanded that Tiu remove his name from title and the loan, but Tipu supposedly objected to the demand to avoid a prepayment penalty and did not remove is name from title.

Ali made another demand in 2005. At that time, Ali testified that he wanted to refinance the loan for the Property to get a better interest rate and again demanded that Tipu remove his name from title and the loan. Tipu supposedly said he would do so but did not remove his name from the title. Again in 2008 Ali claimed that he wanted to refinance the loan to the Property to get a better interest rate. The bank told Ali to get Tipu to quit claim his interest to Ali. Ali provided Tipu with the quit claim deeds for Tipu to sign and presented the quit claim deeds to Tipu at their mosque, but he never signed the quit claim deeds.

Matters came to a head in July 2019 when Ali demanded that his mother, who was still living in the apartment after Ali’s father’s death in 2002, pay an increased rent. Ali denies that he demanded that his mother pay more rent or that he was threatening his mother with eviction. Tipu testified that when he learned of his brother’s demand for the mother to pay more rent and Ali’s threatened eviction of his mother from her apartment, he intervened and started to collect the rent himself. Tipu also at that time started paying the mortgage to protect his mother from eviction. Ali denied this rendition of events, but he had no explanation for Tipu’s allegedly sudden interest in the management of the property. On July 9, 2020, Tipu filed his lawsuit against Tipu for resulting trust and quiet title. 

ANALYSIS:

(a) Procedural Issues Regarding CCP Section 631.8

“(a) After a party has completed his presentation of evidence in a trial by the court, the other party, without waiving his right to offer evidence in support of his defense or in rebuttal in the event the motion is not granted, may move for a judgment. The court as trier of the facts shall weigh the evidence and may render a judgment in favor of the moving party, in which case the court shall make a statement of decision as provided in Sections 632 and 634 or may decline to render any judgment until the close of all the evidence. The court may consider all evidence received, provided, however, that the party against whom the motion for judgment has been made shall have had an opportunity to present additional evidence to rebut evidence received during the presentation of evidence deemed by the presenting party to have been adverse to him, and to rehabilitate the testimony of a witness whose credibility has been attacked by the moving party. Such a motion may also be made and granted as to any cross-complaint.

(b) If it appears that the evidence presented supports the granting of the motion as to some but not all the issues involved in the action, the court shall grant the motion as to those issues and the action shall proceed as to the issues remaining. Despite the granting of such a motion, no final judgment shall be entered prior to the termination of the action, but the final judgment in such action shall, in addition to any matters determined in the trial, award judgment as determined by the motion herein provided for.

(c) If the motion is granted, unless the court in its order for judgment otherwise specifies, such judgment operates as an adjudication upon the merits.”

“The substantial evidence standard of review applies to judgment given under Code of Civil Procedure section 631.8; the trial court's grant of the motion will not be reversed if its findings are supported by substantial evidence.  (Jordan v. City of Santa Barbara (1996) 46 Cal.App.4th 1245, 1255…)  Because section 631.8 authorizes the trial court to weigh evidence and make findings, the court may refuse to believe witnesses and draw conclusions at odds with expert opinion. (Ibid.)”

Roth, at 549–550. 

Defendant Tipu by this motion seeks to have the resulting trust and quiet title claims made by plaintiff Ali in the First Amended Complaint disposed of by way of the present motion for judgment without the need for defendant to put on evidence in his defense.  Tipu argues that Ali has failed to provide the court with sufficient evidence to establish a resulting trust such that Tipu was not intended to take a beneficial interest in the property, or of pre-formation intent regarding the establishment of a resulting trust.  Tipu also argues that Ali has failed to rebut the presumption of Evidence Code sections 622 and 662 at the required heightened level of the burden of proof with substantial evidence.  Tipu also argues that the evidence presented by Ali at trial fails to overcome the statute of frauds and fails to overcome the applicable statute of limitations. 

Plaintiff Ali filed the First Amended Complaint alleging that the title of record held with respect to the Subject Property, that is, with Ali and Tipu holding the property as joint tenants, does not reflect the proper intentions of the parties, which was that plaintiff Ali would be the sole holder of title in the property.  Ali argues that Ali is entitled to a judgment to quiet title to the property in his favor, and to the establishment of a resulting trust establishing his sole beneficial interest in the property and that Tipu is an involuntary trustee.

(b) Existence of Resulting Trust  

The elements of a cause of action to quiet title are a description of the property; plaintiff’s title or interest in the property and the basis therefor; defendant asserts an adverse claim or antagonistic property interest; the date as of which the determination is sought; a prayer for determination of plaintiff’s title.  CCP § 760.010 et seq.  See also Friends of the Trails v. Blasius (2000) 78 Cal.App.4th 810, 831.

CCP § 764.010 provides, in connection with quiet title judgments:

“The court shall examine and determine the plaintiff's title against the claims of all the defendants. The court shall not enter judgment by default but shall in all cases require evidence of plaintiff's title and hear such evidence as may be offered respecting the claims of any of the defendants, other than claims the validity of which is admitted by the plaintiff in the complaint. The court shall render judgment in accordance with the evidence and the law.”

Plaintiff Ali seeks to establish a resulting trust based on his having paid the down payment and expenses for the subject property.

Under Civil Code 2223, “One who wrongfully detains a thing is an involuntary trustee thereof, for the benefit of the owner.”   

“A resulting trust arises by operation of law from a transfer of property under circumstances showing that the transferee was not intended to take the beneficial interest. (Rest. 2d Trusts, § 404; 7 Witkin, Summary of Cal. Law (8th ed. 1974) Trusts, § 123, p. 5481.) Such a resulting trust carries out and enforces the inferred intent of the parties. (7 Witkin, op. cit. supra., at p. 5481; Johnson v. Clark (1936) 7 Cal.2d 529, 533 [61 P.2d 767]; American Motorists Ins. Co. v. Cowan (1982) 127 Cal.App.3d 875, 884-885 [179 Cal.Rptr. 747].) “Ordinarily a resulting trust arises in favor of the payor of the purchase price of the property where the purchase price, or a part thereof, is paid by one person and the title is taken in the name of another. [Citations.]’  The trust arises because it is the natural presumption in such a case that it was their intention that the ostensible purchaser should acquire and hold the property for the one with whose means it was acquired.' [Citations.]” ( Martin v. Kehl (1983) 145 Cal.App.3d 228, 238 [193 Cal.Rptr. 312].) Under Civil Code section 853, “[w]hen a transfer of real property is made to one person, and the consideration therefor is paid by or for another, a trust is presumed to result in favor of the person by or for whom such payment is made.”

Lloyds Bank, at 1042-1043.

“Although partial payment of the consideration for property may give rise to a resulting trust to the extent of the payment, the burden is on the party who asserts a pro tanto trust to establish with definiteness and specificity the proportional amount contributed. ( Socol v. King (1950) 36 Cal.2d 342, 348 [223 P.2d 627]; Martin v. Kehl, supra., 145 Cal.App.3d at pp. 238-239; 7 Witkin, op. cit. supra., § 126, p. 5484.)  Appellants make no attempt whatsoever to demonstrate the precise amounts of the original purchase price furnished or contributed by the various Cohen children to their parents. Their failure to provide this evidence defeats their claim of a resulting trust.  “A resulting trust cannot be enforced in favor of a person who has paid part of the consideration for the transfer of property unless it is possible to clearly establish the amount of money contributed by him [or her] or the proportion of his [or her] contribution to the whole purchase price. [Citations.] One who claims a resulting trust in land must establish clearly, convincingly and unambiguously, the precise amount or proportion of the consideration furnished by him [or her]. [Citation.] If the claimant does not, then the presumption of ownership arising from the legal title is not overcome and a resulting trust will not be declared. [Citations.]” ( Laing v. Laubach (1965) 233 Cal.App.2d 511, 517 [43 Cal.Rptr. 537]; see Socol v. King, supra., 36 Cal.2d at p. 348.)

Lloyds Bank, at 1044-1045.

The court of appeal in Lloyds Bank did not establish that a plaintiff automatically will prevail in a resulting trust claim, even where plaintiff paid the entire down payment a period.  This result is correct because the language of Lloyds Bank indicates that, “ordinarily,” a resulting trust arises where the purchase price, or a part thereof, is paid by one person and the title is in the name of another.  However, the court noted that the payment in its precise amount was required to be evidenced “clearly, convincingly and unambiguously.” The court also noted that exceptions apply, including the exception applied in that case in connection with transactions between parent and child.  Lloyds Bank, at 1044, 1045.  

  Lloyds Bank cites to American Motorists Ins. Co. v. Cowan (1982) 127 Cal.App.3d 875, in which the court of appeal reversed a judgment in favor of an insurer in a declaratory judgment action, in which the trial court had found that the insurer’s homeowners insurance policy issued to its insureds did not provide liability coverage for an injury to a minor resulting from the act of the insureds’ minor son in intentionally striking the other minor in the face.  The trial court judgment also imposed a resulting trust in favor of the insured on the proceeds of a court approved settlement of the other minor’s personal injury action against the insureds effected between the insurer and the other minor’s guardian ad litem.   The court of appeal found that this order was made in error. 

The court of appeal set forth the following description of circumstances in which a resulting trust may be imposed:

“Preliminarily, some attention must be given to the question whether the trust imposed by the court on the settlement proceeds is properly termed a resulting trust or a constructive trust. In their briefs the parties refer to the trust imposed sometimes as one and sometimes as the other.

If proper at all, the trust imposed is a resulting trust. A resulting trust arises from a transfer of property under circumstances showing that the transferee was not intended to take the beneficial interest. (See Rest. 2d, Trusts, § 404; 5 Scott [Law of Trusts (3d. ed.)], p. 3211…) [para.] It has been termed an 'intention-enforcing' trust, to distinguish it from the other type of implied trust, the constructive or ‘fraud-rectifying' trust. The resulting trust carries out the inferred intent of the parties; the constructive trust defeats or prevents the wrongful act of one of them. (See Lezinsky v. Mason etc. Co. (1921) 185 C. 240, 243, 196 P. 884; Johnson v. Clark (1936) 7 C.2d 529, 533, 61 P.2d 767; Bainbridge v. Stoner (1940) 16 C.2d 423, 428, 106 P.2d 423; Rest. 2d, Trusts, Vol. 2, p. 326; Rest., Restitution § 160; 5 Scott [supra], p. 3215; 1 So.Cal.L.Rev. 99 . . . .)" (7  Witkin, Summary of Cal. Law (8th ed. 1974) Trusts, § 123, p. 5481; accord: Burns v. Ross (1923) 190 Cal. 269, 274-275 [212 P. 17]; Kraus v. Willow Park Public Golf Course (1977) 73 Cal.App.3d 354, 372-373 [140 Cal.Rptr. 744].)

Civil Code section 2224 provides that one who gains a thing by accident or mistake is an involuntary trustee, without specifying whether the trust is a resulting trust or a constructive trust.  In any event, however, there is no evidence that the money paid to Cowan by American Motorists was a result of accident or mistake. The money was paid by American Motorists deliberately and with full knowledge of all operative factors because of American Motorists' concern that if it failed to settle because of its noncoverage claim, it might be liable for amounts in excess of its policy limit.”

American Motorists, at 884-885.  

The court of appeal then reviewed the evidence in the case before it and concluded that it did not support a finding of the requisite intent:

“We are thus brought to the question whether there is in the record substantial evidence of circumstances from which the trial court could rationally conclude that Cowan, by and through his guardian ad litem, was not intended to take the beneficial interest in the money paid. The conclusion is inescapable that there is not. The settlement agreement is not a part of the record, but there is no assertion on the part of any party that it contained any provision for the proceeds of the settlement to be refunded to American Motorists should a court subsequently determine there was no coverage under the policy. The fact that more than $25,000 was paid out of the settlement proceeds for costs, fees and expenses is inconsistent with the possibility there was any such provision contained in the settlement agreement.

 We have little doubt that it was the hope of American Motorists from the outset that it might be able to recoup all or part of the settlement proceeds in the event of a subsequent adjudication of noncoverage. However, the unilateral hope or intention of one party to the transaction could hardly serve as the basis for the imposition of a resulting trust. The stipulation executed by the parties through counsel in which it was recited that American Motorists desired to impose a constructive trust on the proceeds was executed after the settlement agreement was fully executed, approved by the court and paid. Moreover, as previously observed, the stipulation did not constitute an agreement on the part of Cowan to the imposition of a trust upon the settlement proceeds; it was at best a recognition, after the fact, that American Motorists desired such relief.

In the absence of some express provision in the settlement agreement for the subsequent imposition of a trust on the settlement proceeds should it be adjudicated there was no coverage under the policy or, at the very least, a mutually agreed reservation of rights of some sort, the settlement agreement was a full and final disposition of the disputed claim between American Motorists and Cowan ( Fouratt v. Goodman (1928) 203 Cal. 252, 254 [263 P.2d 533]), and in the absence of evidence of fraud or mistake of a type sufficient to support rescission, the settlement agreement was a bar to recoupment from Cowan. (See Bree v. Wheeler (1906) 4 Cal.App. 109, 113 [87 P. 255]; Federated Mutual Ins. Co. v. Good Samaritan Hosp. (1974) 191 Neb. 212 [214 N.W.2d 493, 495-496].)

American Motorists, at 885-886. 

“In other words, the relationship between resulting trustee and beneficiary arises where one, in good faith, acquires title to property belonging to another. The law implies an obligation on the part of the one in whom title has vested to hold the property for the owner's benefit and eventually convey it to the owner. The trustee has no duties to perform, no trust to administer, and no purpose to pursue except the single purpose of holding or conveying the property according to the beneficiary's demands. (Bainbridge v. Stoner (1940) 16 Cal.2d 423, 428, 106 P.2d 423.)

Estate of Yool, at 874, italics in original.  

“"A resulting trust arises when the legal estate is transferred under such circumstances that the intent appears, or is inferred, that the beneficial interest should not be enjoyed with the legal title." (49 Cal.Jur.2d, Trusts, § 347, p. 186; Fulton v. Jansen, 99 Cal. 587 [34 P. 331].)

Such a trust is implied by law to carry out the intention of the parties; it is implied from the facts, and neither written evidence of agreement nor fraud on the part of the trustee is an essential element.  The trustee has no duties to perform, no trust to administer, and no purpose to carry out except the single one of holding or conveying according to the beneficiary's demands. (See 49 Cal.Jur.2d, Trusts, §§ 348, 349, pp. 187-189; Bainbridge v. Stoner, 16 Cal.2d 423 [106 P.2d 423]; Bradley v. Duty, 73 Cal.App.2d 522 [166 P.2d 914]; Gerstner v. Scheuer, 91 Cal.App.2d 123 [204 P.2d 937]; Jones v. Gore, 141 Cal.App.2d 667 [297 P.2d 474].)

"A resulting trust arises whenever a purchase of real property is made with the money of the beneficiary and the deed to the property is not taken in his name." (23 Cal.Jur.2d, Frauds, Statute of, § 57, p. 292; see also Sandfoss v. Jones, 35 Cal. 481; Civ. Code, § 853.)

Civil Code section 853 provides: "When a transfer of real property is made to one person, and the consideration therefor is paid by or for another, a trust is presumed to result in favor of the person by or for whom such payment is made."

Laing, at 515. 

Defendant Tipu argues that under this case, one who claims a resulting trust has the burden of proof by clear and convincing evidence that the transferee was not intended to take the beneficial interest, and if the claimant does not, then the presumption of ownership arising from the legal title is not overcome such that a resulting trust will not arise.   

Evidence Code § 662 provides: 

“The owner of the legal title to property is presumed to be the owner of the full beneficial title.  This presumption may be rebutted only by clear and convincing proof.” 

“The form of title presumption affects the burden of proof. (Haines, supra, 33 Cal.App.4th at p. 297 & fn. 11, 39 Cal.Rptr.2d 673; cf. In re Marriage of Ashodian (1979) 96 Cal.App.3d 43, 47, 157 Cal.Rptr. 555.) That is, the party asserting that title is other than as stated in the deed (here, Brooks) has the burden of proving that fact by clear and convincing evidence. (In re Marriage of Weaver (1990) 224 Cal.App.3d 478, 486–487, 273 Cal.Rptr. 696; Haines, supra, at p. 297, 39 Cal.Rptr.2d 673; Evid.Code, § 662.) The presumption can be overcome only by evidence of an agreement or understanding between the parties that the title reflected in the deed is not what the parties intended. (Lucas, supra, 27 Cal.3d at p. 813, 166 Cal.Rptr. 853, 614 P.2d 285;  In re Marriage of Munguia (1983) 146 Cal.App.3d 853, 860, 195 Cal.Rptr. 199.) Significantly, “the presumption cannot be overcome solely by tracing the funds used to purchase the property, nor by testimony of an intention not disclosed to the grantee at the time of the execution of the conveyance.” (In re Marriage of Broderick, supra, 209 Cal.App.3d at p. 496, 257 Cal.Rptr. 397; see also Gudelj v. Gudelj (1953) 41 Cal.2d 202, 212, 259 P.2d 656, Lucas, supra, at p. 813, 166 Cal.Rptr. 853, 614 P.2d 285.) Nor can the presumption be rebutted by evidence that title was taken in a particular manner merely to obtain a loan. (Cf. In re Marriage of Kahan, supra, 174 Cal.App.3d at p. 69, 219 Cal.Rptr. 700 [when title was taken by spouses as joint tenants to obtain loan, property was presumptively held in joint tenancy].)

To overcome this form of title presumption, the evidence of a contrary agreement or understanding must be “clear and convincing.” (Evid.Code, § 662; cf. In re Marriage of Weaver, supra, 224 Cal.App.3d at p. 486, 273 Cal.Rptr. 696.) This standard requires evidence that is “‘ “ ‘so clear as to leave no substantial doubt’ [and] ‘sufficiently strong to command the unhesitating assent of every reasonable mind.’ ” ' ” (In re Marriage of Weaver, supra, at p. 487, 273 Cal.Rptr. 696.

In re Marriage of Brooks & Robinson (2008) 169 Cal.App.4th 176, 189-190.

“The Supreme Court, in a different context, described this standard by saying that “ ‘Clear and convincing’ evidence requires a finding of high probability. This standard is not new. We described such a test, 80 years ago, as requiring that the evidence be ‘ “so clear as to leave no substantial doubt”; “sufficiently strong to command the unhesitating assent of every reasonable mind.” ’ (Sheehan v. Sullivan (1899) 126 Cal. 189, 193 [58 P. 543]…) It retains validity today. [Citation.]” (In Re Angelia P. (1981) 28 Cal.3d 908, 919, 171 Cal.Rptr. 637, 623 P.2d 198.) This characterization has been repeated and applied in many cases (People v. Martin (1970) 2 Cal.3d 822, 833, fn. 14, 87 Cal.Rptr. 709, 471 P.2d 29, disapproved on another point in People v. Chojnacky (1973) 8 Cal.3d 759, 764, 106 Cal.Rptr. 106, 505 P.2d 530; People v. Caruso (1968) 68 Cal.2d 183, 190, 65 Cal.Rptr. 336, 436 P.2d 336; Tannehill v. Finch, supra, 188 Cal.App.3d 224, 228, 232 Cal.Rptr. 749; Lillian F. v. Superior Court (1984) 160 Cal.App.3d 314, 320, 206 Cal.Rptr. 603; United Professional Planning, Inc. v. Superior Court (1970) 9 Cal.App.3d 377, 386, 88 Cal.Rptr. 551; see also 2 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 1982) § 45.1, p. 1639.)” 

Under CACI  201:

“Certain facts must be proved by clear and convincing evidence, which is a higher burden of proof. This means the party must persuade you that it is highly probable that the fact is true. I will tell you specifically which facts must be proved by clear and convincing evidence.”

 “We decline to hold that CACI No. 201 should be augmented to require that ‘the evidence must be “so clear as to leave no substantial doubt” and “sufficiently strong as to command the unhesitating assent of every reasonable mind.”   Neither In re Angelia P., supra, 28 Cal.3d 908, nor any more recent authority mandates that augmentation, and the proposed additional language is dangerously similar to that describing the burden of proof in criminal cases.” 

Nevarrez, at 114, citation omitted.  

The California Supreme Court has held, with respect to the standard of proof for clear and convincing evidence:

“The standard of proof known as clear and convincing evidence demands a degree of certainty greater than that involved with the preponderance standard, but less than what is required by the standard of proof beyond a reasonable doubt. This intermediate standard “requires a finding of high probability.” (In re Angelia P., supra, 28 Cal.3d at p. 919, 171 Cal.Rptr. 637, 623 P.2d 198; see also CACI No. 201 [“Certain facts must be proved by clear and convincing evidence .... This means the party must persuade you that it is highly probable that the fact is true”.) One commentator has explicated, “The precise meaning of ‘clear and convincing proof’ does not lend itself readily to definition. It is, in reality, a question of how strongly the minds of the trier or triers of fact must be convinced that the facts are as contended by the proponent. ... Where clear and convincing proof is required, the proponent must convince the jury or judge, as the case may be, that it is highly probable that the facts which he asserts are true. He must do more than show that the facts are probably true.” (Comment, Evidence: Clear and Convincing Proof: Appellate Review (1944) 32 Cal. L.Rev. 74, 75.)

Conservatorship of O.B. (2020), 9 Cal. 5th 989, 998-999, footnote omitted. 

The clear and convincing standard has also been described by the Court as long “requiring that the evidence be ‘so clear as to leave no substantial doubt’; ‘sufficiently strong to command the unhesitating assent of every reasonable mind.’” In re Angelia P. (1981) 28 Cal.3rd 908, 919, quoting Sheehan v. Sullivan (1899) 126 Cal. 189, 193

Defendant Tipu argues that plaintiff Ali has failed to meet his burden of proof by clear and convincing evidence to refute that Tipu has a 50% beneficial ownership in title to the Subject Property as reflected on the deed and has failed to provide any corroborating evidence to support his claim. 

Tipu argues that evidence showed that, without Tipu’s involvement with the loan application and his source of revenue, the Property could not have been purchased. Tipu was named in real estate purchase contract as one of two buyers, applied for the loan as purchaser and was placed on deed of trust and grant deed, Tipu argues that Ali and Tipu agreed that they would buy the property as equal partners and that both would be recorded on the loan and title as such, which agreement was not challenged formally for over 26 years until Ali filed this lawsuit. There is evidence that both parties contributed money toward the down payment, and purchase in 1996.  There is no evidence that Ali ever claimed sole ownership interest in any legal or formal setting, as evidenced by the fact that both Ali and Tipu reported on tax returns, prepared by same accountant, that they were equal owners of the property.  

On the other hand, Ali argues that prior to the purchase of the property, Ali and Tipu agreed that Ali was the 100% owner, and that Tipu was in the transaction solely for the purpose of obtaining the credit for the purchase money loan, and that in the future Tipu would remove his name from title.  Ali argues that he, with his own money, paid $51,500 as a down payment on the property, and Tipu was placed on title by the mortgage lender only because he was a co-signer on the loan.  Ali also argues that from the date of the purchase he paid most of the mortgage payments for the property and other expenses.  

 

The court observes that there was evidence submitted concerning a family meeting and an overall intent to share ownership between Ali and Tipu, presumably regardless of the source of the downpayment, to account for mental issues Ali had experienced to prevent Ali from transferring the property in a compromised state, and to safeguard their apartment as the future long-term home of the parents. The nature of the family enterprise surrounding the purchase of the Property gives rise to a reasonable inference that money came from a family source and, in any case, not entirely from Ali. The family’s purpose was to provide a financially secure residence for the elderly parents to live out their remaining years.  This issue of Ali’s mental stability was another independent reason to have both Tipu and Ali on title.

As indicated above, the court of appeal in In re Marriage of Brooks & Robinson, in discussing appropriate challenges to the form of title presumption stated:

“Nor can the presumption be rebutted by evidence that title was taken in a particular manner merely to obtain a loan. (Cf. In re Marriage of Kahan, supra, 174 Cal.App.3d at p. 69, 219 Cal.Rptr. 700 [when title was taken by spouses as joint tenants to obtain loan, property was presumptively held in joint tenancy].)”

In re Marriage of Brooks & Robinson, at 190.

“Brooks is not helped by his testimony that the purpose of taking title in Robinson's name was to facilitate financing for the Property. This merely explains why Brooks was willing to allow Robinson to have sole title to the Property. Having a reason for allowing title to be taken solely in Robinson's name does not diminish the inference that the parties intended the Property to be Robinson's separate property. Indeed, it supports the conclusion that the form of title was not inadvertent, but rather that the parties expressly intended such a result. Most significantly, the proffered reason does not constitute evidence of an agreement between the spouses that the Property be community property.’

In re Marriage of Brooks & Robinson, at 191.  

 This principle was applied in that case and applies in the case at bar.  In the alternative, the court of appeal found that the evidence was entitled to very little weight. 

Defendant in the moving papers and reply relies on In re Fadel (2012) 492 B.R. 1, 14, in which the U.S. Bankruptcy Appellate Panel of the Ninth Circuit found that the bankruptcy court properly had determined that a debtor spouse had not held an interest in a single-family residence which had been sold at a foreclosure sale two days after the spouse had filed her Chapter 13 bankruptcy petition.  In that case, the debtor, Mrs. Fadel, had been married to her spouse, Mr. Fadel, since 1988.   Mr. Fadel purchased the property in 2001, with the recorded grant deed granting the property to Mr. Fadel, a married man, as his sole and separate property.   The same date the grant deed was recorded, an interspousal transfer deed was recorded from Mrs. Fadel conveying all her interests, whether community or otherwise, to Mr. Fadel, who continued to hold the property as his sole and separate property.    In 2003, Mr. Fadel obtained a loan for $275,000 from a mortgage corporation, and deed of trust listed the borrower as Mr. Fadel, a married man, as his sole and separate property.  

In connection with a motion by the purchaser for relief from the automatic stay on the part of the purchaser of the property to pursue an unlawful detainer action against Mrs. Fadel in state court, Mrs. Fadel opposed the motion, arguing that the foreclosure sale had occurred post-petition and violated the automatic stay, so it was void and the purchaser lacked standing to seek relief. 

The bankruptcy court ultimately decided the property was not property of Mrs. Fadel’s bankruptcy estate:

“In reaching its decision that the Property was not property of Mrs. Fadel's estate on the petition date and therefore no stay violation occurred rendering the sale void, the bankruptcy court determined that legal title trumped any community interest she held in the Property, unless Mrs. Fadel was unaware, she was giving away her interest in it. On that issue, the court found that Mrs. Fadel, for cultural reasons, knowingly and knowledgeably granted any interest she may have had in the Property to Mr. Fadel as his sole and separate property, and no subsequent writing existed transmuting it to community property.”

In re Fadel, at 7.

However, the appellate panel in In re Fadel noted that in that case, the interspousal transfer grant deed already had conveyed all of Mrs. Fadel’s right, title and interest in the property to Mr. Fadel in 2001, and that in 2003, Mr. Fadel obtained a loan, “in his own name” secured by the property, with the recorded deed of trust in that transaction stating that the property used to secure the loan was Mr. Fadel’s sole and separate property.  In re Fadel, at 14.  As plaintiff argues in the opposition, the case does not stand for the principle quoted, as it did not apply in that case—title was not taken in the manner it was taken to facilitate a loan, as the loan was taken only in Mr. Fadel’s name and secured by property described in the deed of trust as separate property in his name.   The quotation from In re Marriage of Brooks & Robinson therefore appears to be dicta in the In re Fadel case.    

“Priscilla claims that the court improperly applied the principles of Lucas to these facts, since the property was not actually “acquired” by the parties during marriage but was her own separate property, deeded to both parties only to accommodate the lender. However, the community property presumption arises purely from the form of title in which property was taken. (In re Marriage of Miller (1982) 133 Cal.App.3d 988, 992, 184 Cal.Rptr. 408; In re Marriage of Johnson (1983) 143 Cal.App.3d 57, 60, 191 Cal.Rptr. 545.) Furthermore, two courts have recently applied the presumption in the precise case where one spouse makes a transfer of separate property to joint tenancy in order to secure a home equity loan. (In re Marriage of Anderson (1984) 154 Cal.App.3d 572, 578, 201 Cal.Rptr. 498; In re Marriage of Neal (1984) 153 Cal.App.3d 117, 124, 200 Cal.Rptr. 341, both reversed on other grounds by In re Marriage of Buol, supra, 39 Cal.3d 751, 218 Cal.Rptr. 31, 705 P.2d 354.)”

In re Marriage of Kahan, at 68-69.

Plaintiff cites, without discussion, In re Sloan (U.S. Bankruptcy Court, C.D. Cal. 2016) 2016WL 1267833, an opinion not for publication, in which the federal bankruptcy court for the Central District of California, in applying California state law, declined to follow what it characterized as the “per se” rule stated in In re Marriage of Brooks & Robinson and In re Fadel, in an adversary proceeding seeking to avoid and recover the value of an alleged fraudulent transfer of a 50 percent ownership of the debtor in real property to defendant.  In that case, the debtor’s mother, Martha, had transferred her 50 percent ownership interest in the subject property to the debtor, Victor, who a year later transferred his interest in the property to his brother, Lavell, via quitclaim deed expressly stating that the transfer was a bona fide gift, with the grantor receiving nothing in return. 

The evidence presented in that case at trial was that the family had held a family meeting to address the mother’s health condition and care.  The mother was suffering from congestive heart failure and dementia and was a fall risk.  She was living at her home, the subject property, following a hospitalization and a one to two week stay in a convalescent home, where she developed bed sores, and the family had gotten together and pulled her back to her home where she wanted to be.   At the family meeting, those attending came up with a potential solution to help remedy the financial issues posed by the need for care for the mother, in effect, for Victor and his brother Lavell, who was also living at the subject property, to obtain a loan to help her get 24-hour care and support other needs around the house, based on equity in the property.  It was determined that because Victor was the only sibling who was employed at the time, it was decided that he would be the one to try to get the loan.  Papers were drawn up, and a quitclaim deed putting the mother’s half of the property into Victor’s name, which were notarized. 

Victor was never able to obtain the planned home equity loan because about a week later he had a massive rupture of his colon, from which he almost died, spent 10 days in the hospital, and then was told he could not get the loan unless he was working and could present a current paycheck stub, which he could not do because of his medical emergency.  It was decided to hold off on the loan until Victor was back at work getting a paycheck.  Victor decided in about June or July of 2010 that he would not be able to obtain the loan, and in November of 2010, the mother passed away.  

In June of 2011, Victor transferred the interest in the property “back” to Lavell, which had been discussed at the family meeting, and Victor testified that he had intended to transfer the property back to his brother, never had an intent not to, never considered the property that the mother and Lavell lived in to be his, but always considered the property to be Lavell and his mother’s.  Because of those circumstances, Victor had not listed the transfer of the property to Lavell on his bankruptcy schedules.  

The bankruptcy court found that despite Victor’s testimony that the purpose of the mother’s transfer was to use Victor’s credit in order to obtain a loan, the trial testimony of the interested parties that their mother did not transfer a beneficial interest in her one-half interest in the property to be credible.  Also, such intent was not established by clear and convincing evidence as required under Evidence Code section 662 that Victor’s legal title to a one-half interest in the property “was not full beneficial interest of that one-half interest, which remained in the mother.”  In re Sloan, at 8. 

The bankruptcy court observed, although the trustee had not argued such, that there were decisions which “make statements that evidence that title was taken to obtain a loan cannot per se rebut” the general presumption of record title.  In re Sloan, at 8. 

“Because the plain meaning of the statute, California Evidence Code § 662, does not state or in any way suggest that the general presumption of record title cannot be rebutted by evidence that title was taken to obtain a loan, and because the statute is based on common law principles in Olson and Rench, the court examines those cases in order to ascertain the meaning and purpose of the statute.”

In re Sloan, at 9. 

The bankruptcy court then reviewed the facts of those cases, the California Supreme Court opinion in Olson v. Olson (1935) 4 Cal.2d 434 and the court of appeal opinion in Rench v. McMillan (1947) 82 Cal.App.2d 872, and concluded that under the facts of those cases, the courts had in fact weighed the evidence that there had been agreement to return record title in connection with a loan transaction, undermining any pronouncement in cases under the subsequently enacted statute that there had been under the common law on which the statute was based, “a per se rule against rebutting general presumption of record title with evidence that title was taken merely to obtain a loan.”  In re Sloan, at 10.  

The federal bankruptcy court concluded in the case before it:

“Accordingly, based upon a review of California Evidence Code 662's plain language, the comments of the California Law Review Commission reflecting the legislative intent behind the statute, the implicit holding of the California Supreme Court in Olson inconsistent with the statement of the per se rule against loans in Brooks & Robinson, and the Olson and Rench cases upon which the statute is based, the court declines to follow the per se rule stated in Marriage of Brooks & Robinson. There is no legitimacy to the statement of Marriage of Brooks & Robinson interpreting California Evidence Code § 662, which does not come from the statute, or from the case law of the state's highest court, the California Supreme Court. For the same reasons, the court finds unpersuasive, and declines to follow, the statement made by the Bankruptcy Appellate Panel in In re Fadel, citing Marriage of Brooks & Robinson and adopting the per se rule from that case. In re Fadel, 492 B.R. at 14, citing and quoting, In re Marriage of Brooks & Robinson, 169 Cal.App.4th at 190…”

Instead, the court follows the California Supreme Court's decision in Olson, as well as the California Court of Appeal's decision in Rench, both of which necessarily imply that the form of title can be rebutted by evidence that title was taken in a particular manner merely to obtain a loan, as well as the plain language of California Evidence Code § 662. As in Olson and Rench, the court undertakes an evidentiary analysis of whether there was proof of an agreement that legal title only, and not beneficial title, was transferred merely to obtain a loan, but unlike in Olson and Rench, as previously stated, the court determines on the facts in this case that Defendant has shown by clear and convincing evidence that the transfer from Martha to Victor was merely to put Victor on legal title, and that Martha still held the beneficial interest in the Property.”

In re Sloan, at 11. 

This court recognizes that this opinion, which is not published, is similarly subject to plaintiff’s own argument that such a case is not binding on this court, but to be considered only for its persuasive value. 

Court notes the reasoning behind In Re Sloan has some persuasive value in difficult factual scenarios such as those presented in that case, and based on the evaluation of Supreme Court common law authority on which the statute was enacted, that the pronouncement in In re Marriage of Brooks & Robinson concerning title matters in procurement of a loan should not be viewed as a per se doctrine.  There accordingly appears to be some reasonable dispute concerning whether the doctrine stated in that case, i.e., In re Marriage of Brooks & Robinson, should be considered a per se bar to the consideration of evidence concerning the way title is taken in connection with a loan transaction, or whether the court should consider and weigh such evidence in its resulting trust intent assessment in the totality of all evidence presented.   

Plaintiff Ali also argues that the court of appeal in Estate of Yool (2007) 151 Cal.App.4th 867, which this court notes was decided based on the statute, rather than common law, noted that the probate court in that case had ruled that the evidence supported the imposition of a resulting trust in favor of a daughter with respect to property she owned jointly with her mother, where the facts recited in that opinion included evidence that the mother had not intended to take beneficial title to the property, but had “accepted legal title as a mere accommodation to facilitate financing.”  Estate of Yool, at 871.  The court of appeal did not find that such evidence had been improperly considered or note that it was irrelevant under the doctrine from In re Marriage of Brooks & Robinson that the title presumption cannot be rebutted by evidence that title was taken in a particular way merely to obtain a loan, although In re Yool, decided in 2007, was decided well after the decision in In re Marriage of Brooks & Robinson in 1985.  

The court of appeal did not directly address in any detail the merits of the probate court’s decision that a resulting trust be recognized in favor of the daughter, or on what basis, but did affirm the probate court’s order below, evidently including the order that the administrator below execute and record a deed quitclaiming any record interest of the deceased mother’s estate in the property to the daughter.  Estate of Yool, at 870 and 878.  This outcome suggests that there had been no error in the resulting trust determination despite it apparently being based, at least in part, on recognition of offered evidence that the mother had accepted legal title as a mere accommodation to facilitate financing.  Estate of Yool, at 871.    This result suggests that evidence concerning record title being entered in connection with a loan transaction is not uniformly considered per se immaterial to a resulting trust determination.   

       

In addition to the authorities cited by both sides, this court recognizes, as was noted in In re Marriage of Brooks & Robinson, that the circumstances of knowingly permitting title to be entered in a certain manner to accommodate the understandable requirement of a lender carries great weight with respect to the intention of the parties with respect to the manner in which title is taken at the time of entering into a loan transaction.  However, it is clear that in most cases common sense would suggest that a person agreeing to be responsible on a mortgage loan would reasonably expect to have access to the security for the debt and to remain on title for the duration of that debt obligation.  The court also notes with concern that the practice of entering into an agreement with a lender to repay a debt based on  representations to the lender concerning a co-signer’s credit-worthiness, and a pledge to hold security for repayment of the loan, when the intention is to hold beneficial title in the party who would not otherwise qualify for the loan, an intention undisclosed to the lender, is tantamount  to sanctioning a form of fraud on the lender.    

Based on the legal arguments and reasoning supra, the court in this case will consider the evidence concerning the taking of title in the manner taken to obtain a loan to the extent it bears on the court’s assessment of the intent at the time the transaction was entered in connection with the imposition of a resulting trust.   The circumstances will not be considered per se irrelevant, but is one factor to be considered, along with other factors, including the commonsense factors discussed above.    

In Olson, the California Supreme Court addressed a claim by Milda Olson that at the time she signed a gift deed conveying outright to her former husband, Werner Olson, her share of real property held in joint tenancy by both of them, Werner Olson had assured Milda that once he had properly refinanced the property, he would restore the title to its former status of joint tenancy between them.   The Court in connection with the evidence submitted by Milda Olson, which consisted only of her uncorroborated testimony, observed:

“With reference to the real property, we can see no escape for the appellant from the predicament in which she finds herself. The burden was upon her to establish by clear and convincing evidence that a promise was made to her by Werner Olson to subsequently restore the title to its former status and that in reliance upon such promise she executed the deed in question. She was unable to produce the letter which she claimed contained the promise and relied solely upon her own testimony to support her contention. It is apparent that the trial court did not deem this sufficient and found against her. In view of the fact that the only person who could successfully contradict her testimony was dead, the trial court was justified in considering her uncorroborated testimony as weak and unsatisfactory.

Olson, at 437-438 

In Rench, supra, the court of appeal likewise noted with respect to the quality of the evidence presented by the resulting trust claimant, who to overcome the presumption that the holder of legal title owns full beneficial interest in property, must present clear and convincing evidence: 

“The trial court is not bound to accept testimony even when unimpeached, against a presumption or contrary reasonable inference from the other facts in evidence (Huth v. Katz, 30 Cal.2d 605, ——, 184 P.2d 521) and whereas here the only direct evidence of a resulting trust comes from the lips of one whom the court may decide is discredited it certainly cannot be said on appeal that the court was bound to believe him.”

Rench at 875. 

In Rench, the subject testimony was not unimpeached, as there had been impeachment of the witness by way of evidence of conviction of a felony, and rehabilitation by proof of his subsequent pardon by the governor.  Rench, at 874.  It was also argued that there was one piece of documentary evidence to corroborate the testimony, which the court of appeal found was consistent with competing theories with respect to its significance, and the court of appeal concluded, “It was for the trial court to weigh this evidence and judge its effect.”  Rench, at 875. 

The trial court here will also consider these observations when evaluating and weighing the evidence and whether it constitutes clear and convincing proof.  The court finds that Ali has not carried his burden of proof by the clear and convincing standard of proof. As will be discussed in more detail later, Ali’s completely uncorroborated testimony of the intent of the parties in the formation of the alleged resulting test is insufficient and unpersuasive and is contrary to common sense.

(c) Evidence Code Section 622

Defendant also argues that Evidence Code 622 gives rise to a presumption that the facts recited in written instruments are true as between the parties, and in this case, there are two written instruments, the loan, and the grant deed, both of which clearly state that both Ali and Tipu are equal owners of the property as joint tenants.   

Evidence Code section 622 provides:

“The facts recited in a written instrument are conclusively presumed to be true as between the parties thereto, or their successors in interest; but this rule does not apply to the recital of a consideration.”

Defendant Tipu relies on In re Marriage of Clarke & Akel (2018) 19 Cal.App.5th 914, in which, in addressing the argument that the statute should be applied with respect to a premarital agreement in a dissolution proceeding, stated:

“Evidence Code section 622 is based upon the doctrine of estoppel by contract, i.e., “the principle that parties who have expressed their mutual assent are bound by the contents of the instrument they have signed and may not thereafter claim that its provisions do not express their intentions or understanding.” (City of Santa Cruz v. Pacific Gas & Electric Co. (2000) 82 Cal.App.4th 1167, 1176–1177, 99 Cal.Rptr.2d 198.)”

In re Marriage of Clarke & Akel, at 920-921. 

Ali also cites other cases in which the statute was applied to written instruments resulting from arms-length negotiations.  See Quintanilla v. Dunkelman (2005, 2nd Dist.) 133 Cal.App.4th 95, 117 (noting the word “instrument” in the statute “usually refers to a contract,” and questioning whether the statute applied to a medical consent form, particularly where the patient was rushed through the admission process without a real opportunity to read the consent form); Plaza Freeway Ltd. Partnership v. First Mountain Bank (2000) 81 Cal.App.4th 616, 625-626 (holding the term “instrument” applies to an estoppel certificate executed by the tenant to a commercial lease agreement).  

Hence the conclusive presumption of Evidence Code Section 622 does not apply to the case at bar. The motion accordingly is not granted on this ground, because the defendant has failed to establish that this affirmative defense applies to the instant case. 

(d) Statute of Frauds

Under Civil Code § 1622:

“All contracts may be oral, except such as are specially required by statute to be in writing.” 

Defendant relies on Civil Code section 1624, which provides, in pertinent part:

“(a) The following contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party’s agent:

(1) An agreement that by its terms is not to be performed within a year of the making thereof. 

(2) A special promise to answer for the debt, default, or miscarriage of another except in cases provided for in Section 2794. 

(3) An agreement... for the sale of real property, or of an interest therein...”

Defendant also relies on CCP section 1971:

“No estate or interest in real property, other than for leases for a term not exceeding one year, nor any power over or concerning it, or in any manner relating thereto, 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.”

Defendant argues that there is no agreement whatsoever evidenced by a writing signed which supports the allegations being made by Ali regarding the agreement concerning title to the property.  Defendant also argues that Ali waited over twenty years to try to enforce the claimed oral agreement.  The court notes that the intention of the parties before the title documents were created more precisely forms an understanding of Ali and Tipu which supposedly supports a judicially created resulting trust. The understanding is not an oral contract, as Plaintiff implies in his complaint and closing argument brief. 

The court notes that pursuant to the language in Laing v. Laubach, discussed supra, the imposition of a resulting trust is not subject to the statute of frauds at all. Rather, it is an understanding between the parties about the nature of the transaction at issue to the formation of a resulting trust and is not an oral contract.

As set forth above, the court of appeal in Laing, in describing the nature of a resulting trust, noted:

“Such a trust is implied by law to carry out the intention of the parties; it is implied from the facts, and neither written evidence of agreement nor fraud on the part of the trustee is an essential element.  The trustee has no duties to perform, no trust to administer, and no purpose to carry out except the single one of holding or conveying according to the beneficiary's demands.)”

Laing, at 515, citations omitted, emphasis added. 

Plaintiff Ali in opposition argues that the statute of frauds does not apply to resulting trusts because they are created by operation of law.  As set forth above, CCP section 1971 expressly provides that “No estate or interest in real property, nor any power over or concerning it, or in any manner relating thereto, can be created, granted, assigned, surrendered, or declared, otherwise than by operation of law, or a conveyance or other instrument in writing…”  (Emphasis added).

Plaintiff Ali cites to Martin v. Kehl (1983) 145 Cal.App.3d 228, 238, in which the Second District affirmed a trial court judgment imposing a constructive trust in favor of plaintiff of a one-half interest in real property which the parties had bought together, with plaintiff paying one half of the down payment, and record title being put in the name of defendant who needed a place to live.  The parties orally agreed that so long as defendant occupied the property, in lieu of rent, defendant would pay the monthly trust deed payments and would take care of minor maintenance, but if and when defendant vacated the property, the property would be sold, and plaintiff would receive one-half of the net proceeds.  Martin, at 234. 

After defendant vacated the property, defendant rented it for the rest of the year to tenants, but plaintiff demanded that the property be sold, or plaintiff be paid his equity share.  Defendant failed to comply, and plaintiff filed a complaint seeking dissolution and accounting of an alleged partnership and a constructive trust on one-half of the property. 

In affirming the judgment, the Second District found that the judgment could be affirmed based on a resulting trust, although this had not been a theory advanced by plaintiff in the trial court, as the express findings of the court would have supported the imposition of such a trust.   Martin, at 238-239. 

In explaining the distinction between a constructive trust and a resulting trust, the Second District noted:

“The terms “constructive trust” and “resulting trust” have often been confused by attorneys, as well as some courts. (Kraus v. Willow Park, supra., 73 Cal.App.3d at p. 373; see 3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 704, p. 2326; 5 Scott on Trusts, supra., § 462.1, p. 3416.) Both are involuntary trusts implied by law and exempt from the statute of frauds.”

Martin, at 238, emphasis added. 

In Lloyds Bank California v. Wells Fargo Bank (1986) 187 Cal.App.3d 1038, discussed supra, the court of appeal noted, “A resulting trust arises by operation of law from a transfer of property under circumstances showing that the transferee was not intended to take such beneficial interest.”  Lloyds Bank, at 1042, citing Restatement 2nd Trusts, section 404, 7 Witkin, Summary of Cal. Law (8th Ed. 1974) Trusts section 123, p. 5481, emphasis added.  Lloyds Bank is cited by Miller and Starr for this principal, noting:

“No writing is required. Usually, the creation of a trust requires a written document, but as in the case of a constructive trust, the resulting trust is implied by operation of law as an exception to the statute of frauds and the parol evidence rule. It can be imposed by the court even though all agreements between the parties are oral or implied and not memorialized in a written document.”

Miller and Starr, California Real Estate 4th (2023 rev.) section 40.124. 

Defendant in reply does not address the Martin case, but repeats the arguments and authorities cited in the moving papers. 

The statute of fraud does not apply at all to the claims here because a resulting trust arises by operation of law. The court accordingly does not find that plaintiff’s claims are barred by defendant’s defense of the statute of frauds. 

(e) Statute of Limitations

Defendant Tipu argues that plaintiff Ali’s claims are barred by the applicable statute of limitations.

The parties agree that the statute of limitations to be applied to a claim for a resulting trust is the four-year statute of limitations set forth in CCP section 343 (“An action for relief not hereinbefore provided for must be commenced within four years after the cause of action shall have accrued.”)  In Estate of Yool (2007) 151 Cal.App.4th 867, the court of appeal held “The applicable statute of limitations on an action to establish a resulting trust is the four-year statute found in Code of Civil Procedure section 343.”  Estate of Yool, at 875.  

  The parties also agree that the statute of limitations on such a claim does not begin to run until there has been repudiation by the trustee, in effect, when a demand has been made upon the trustee and the trustee refuses to convey.  Estate of Yool, at 875 (“The statute of limitations does not begin to run against a voluntary resulting trust in the absence of repudiation by the trustee, that is, until demand has been made upon the trustee and the trustee refuses to account or convey.”)

  Neither side presents legal authority or discussion which addresses the issue of what constitutes repudiation by the trustee or a refusal to convey. 

The authority cited by plaintiff Ali in the opposition, Estate of Yool, is a case in which the court of appeal held that a probate court had not erred in finding that CCP § 366.2, providing a one-year statute of limitations, did not apply to a ruling imposing a resulting trust in real property; the applicable statute of limitations was the four-year statute found in CCP§ 343. 

“Here, at the time of Yool's death Mattingly had suffered no harm with respect to the property. There had been no repudiation, not even any equivocation or hint of equivocation on Yool's part that might prompt Mattingly to consider or resort to a legal “action” to protect her rights. Simply put, the cause of action had not accrued, nor did it exist.”

Estate of Yool, at 877. 

The opinion does not include a detailed discussion of which facts supported the conclusion that there had been no repudiation, but stated:  

“Under the facts of this case there was no cause of action, accrued or not yet accrued, that existed at the time of decedent's death within the sense of section 366.2 and hence no action that could have been commenced on that cause. Yool had not repudiated the resulting trust or shown any resistance to conveying the property. Indeed, under the facts developed below, it is apparent that if Mattingly had asked, Yool would have conveyed title to Mattingly and the matter would never have seen the legal light of day. The legal issue of who owned the Oakley property and to whom it should be conveyed only arose after Yool's death.”

Estate of Yool, at 876-877, italics in original. 

“Following Yool's death, Mattingly asserted that decedent had provided no consideration for the property, never intended to take beneficial title, and accepted legal title as a mere accommodation to facilitate financing. Mattingly argued that the facts supported imposition of a resulting trust in her favor.

To resolve the matter, on July 31, 2003, the special administrator filed a petition under Probate Code section 850 “to determine title to real property and to require transfer to party entitled thereto.” Therein he indicated, among other matters, that Mattingly alleged her mother frequently disclaimed any interest in the property and frequently spoke of putting title solely in Mattingly's name, but never did before her death. Appellants Bart Yool and Cheryl Schwab, Mattingly's siblings, moved for judgment on the pleadings, arguing that the petition was untimely under Code of Civil Procedure section 366.2. Denying the motion, the probate commissioner ruled, among other points, that section 366.2 does not apply to actions for resulting trusts.

At the conclusion of the hearing on the section 850 petition, the probate court ruled that the evidence supported imposition of a resulting trust in Mattingly's favor, and, as a matter of law, Code of Civil Procedure section 366.2 did not apply. Consequently, it ordered the administrator to execute and record a deed quitclaiming any record interest of the estate in the Oakley property to Mattingly.”

Estate of Yool, at 871.  

The relevant facts with respect to the lack of repudiation therefore appear to include the mother frequently disclaiming any interest in the property and frequently speaking of putting title solely in her daughter’s name.   Evidently, there was also no evidence suggesting that the daughter had ever requested or made “demand” that the title to be changed, based on the court of appeal’s conclusion that under the facts developed, “it is apparent that if Mattingly had asked, Yool would have conveyed title to Mattingly.”  Estate of Yool, at 877.  The court is also cognizant of the language in the opinion that there was no “equivocation” which may have prompted the claimant to consider or resort to legal action to protect rights.  Estate of Yool, at 877.

In Laing v. Laubach (1965) 233 Cal.App.2d 511, discussed supra, a pleading case, the court of appeal rejected an argument that the complaint brought upon a resulting trust was barred by the four-year statute of limitations, noting an action for a resulting trust “must be brought within four years from the time the beneficiary has knowledge or notice of the repudiation of the trust.”  The court of appeal found that the complaint appropriately had alleged that defendant did not claim the subject property as his own until the date defendant demanded that plaintiff vacate the property, a date within the statute of limitations, despite allegations in the complaint that on unspecified prior occasions defendant “had given various excuses for delay.”  Laing, at 518.  

The court of appeal held:

“Where the beneficiary requests conveyance of the legal title and the trustee gives various excuses for delaying, such excuses cannot be deemed to be an unequivocal repudiation of the trust.”   

Laing, at 519. 

In England v. Winslow (1925) 196 Cal. 260, the California Supreme Court rejected an argument that repudiation could be inferred where a trustee lawfully come into possession of monies, but that the possession became wrongful immediately upon the trustee’s violation of his duty and trust with respect to those monies, therefore triggering the statute of limitations.  The Court held:

“The only way in which the trustee of an express or voluntary trust can set the statute of limitations in operation in his favor with respect to it or its properties in his hands is by a distinct act of repudiation amounting to a denial of its existence, and no mere tacit failure of the trustee to perform his duty in respect to such trust could or should be held to amount to a repudiation of it so as to set the statute of limitations in motion in his favor and as a result of his own neglect of duty.”

England, at 272. 

“Defendants argue that in 1938 plaintiff demanded the Casa Bonita back from his mother and in 1948 told his mother's attorney, Mr. Clark, that the apartments were his property. As to the former incident, there is no evidence that Mrs. Marshall refused to return the property. There is evidence that about this time Mrs. Marshall became saddled with the burden of supporting plaintiff's sister and her family who had recently moved into the Casa Bonita and plaintiff was afraid that his mother “was going to turn my apartment house over to the others”; that in a discussion between the parties, the mother said “she still needed money” and the son decided he would “let her keep it” as he didn't need the money himself; and that the mother told him that she had made provision in case anything happened to her to return the apartment house to him. As to the 1948 incident with Mr. Clark, there is no evidence that Mrs. Marshall repudiated her agreement at that time. Defendants have not directed our attention to any evidence, including that pertinent to the above two incidents, which constrains us to conclude as a matter of law that Mrs. Marshall repudiated her promise to reconvey the property or asserted sole ownership of it, at any time prior to October 1953.”

Marshall, at 251. 

“Between March 1935, and May 1937, plaintiff frequently asked defendant to reconvey the property to him. She found various excuses to postpone the actual conveyance but at no time asserted her ownership of the property and upon each request agreed to reconvey upon the happening of some future event. Several of these conversations were had in the presence of disinterested witnesses who detailed them during the trial. In May 1937, the defendant for the first time claimed the property as her own and refused to convey it to plaintiff.  

Robertson, at 64. 

“This being a voluntary constructive trust neither the statute of limitations nor laches would begin to operate until its repudiation was brought home to the beneficiary. (O'Brien v. O'Brien, 50 Cal.App.2d 658, 660 [123 P.2d 877]; Chard v. O'Connell, 48 Cal.App.2d 475, 480 [120 P.2d 125]; England v. Winslow, 196 Cal. 260, 272 [237 P. 542]; Cooney v. Glynn, 157 Cal. 583, 589 [108 P. 506]; Taylor v. Morris, 163 Cal. 717, 725 [127 P. 66].)

There is evidence of continuing declarations of both Frank and George in recognition of the trust. One witness testified that in 1935 she heard George tell Lucinda: “It won't be long now, Mother, until everything will be straightened up and the property will be deeded back to you.”

Something is attempted to be made of earlier declarations of Lucinda that the boys had not kept their promise to deed the property back to her. However, the weight and effect of this evidence was for the trial court. The trial court may well have concluded that subsequent promises made to Lucinda satisfied her that her sons had not repudiated their trust and had every intention of carrying it out in good faith.”

Airola, at 54. 

In this case, the action was filed on July 9, 2020.  Four years prior to this would be July of 2016. The court finds that Tipu repudiated the resulting trust, assuming a resulting trust was created, outside the four-year statute of limitations. The repudiation was a combination of Tipu’s words and conduct during the four separate occasions over a twenty-year period that Ali asked and/or demanded that Tipu reconvey title to the Property to Ali. 

The first demand occurred in 1999. Tipu objected to the demand by his conduct by never getting back to Ali with a reconveyance of title as Ali had demanded, even though Ali says that Tipu said he would reconvey title. Ali made the demand again in 2005 that Tipu reconveys the title to him, but once again Tipu did not reconvey the title. Ali made a third demand in 2008. Again, Tipu did not reconvey the title as per Ali’s demand. In fact, in third instance, the bank told Ali to get Tipu to sign a quit claim deed, which Ali delivered to Tipu at their mosque. However, Tipu refused to sign the quit claim deed to reconvey the title. The court finds that the cumulative effect of Tipu’s never “following up” on the demand to reconvey title is a repudiation by conduct. 

The court also notes that there was a fourth occasion when Ali in 2016 again demanded that Tipu reconvey the Property to Ali so he could put his wife on title. At this time Tipu objected and again did not convey the title. Ali again testified that Tipu refused to convey the title, and if this event occurred before July 9, 2016, it would also be outside of the statute of limitations.

However, the court’s ruling that the resulting trust is barred by the statute of limitations is based on cumulative repudiations, which ripened into an actual repudiation in 2008. The four-year CCP 343 statute of limitations ran in 2012. The court rejects the argument of plaintiff that the statute of limitations did not begin to run until the family argument erupted in 2019 at which time Tipu “took over” running the property which supposedly was the only time Tipu engaged in any conduct which would indicate his ownership interest in the Property. This “take over” conducted by Tipu of managing the Property and collecting rents allegedly breached the understanding the only Ali could manage the property and collect rents. The court notes that this argument has nothing to do with the understanding regarding title, which is the essence of the resulting trust. Hence, this “take over” conduct by Tipu does not constitute a repudiation. But Tipu’s conduct of refusing to reconvey title is conduct indicating repudiation of the resulting trust.

CREDIBILITY FINDINGS

As noted above, on a motion for judgment under CCP 631.8, it is held that, “[b]because section 631.8 authorizes the trial court to weigh evidence and make findings, the court may refuse to believe witnesses and draw conclusions at odds with expert opinion.”  Roth v. Parker (1997 2nd Dist.) 57 Cal.App.4th 542, 549-550, quotation omitted.

 

“Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following:

(a) His demeanor while testifying and the manner in which he testifies.

(b) The character of his testimony.

(c) The extent of his capacity to perceive, to recollect, or to communicate any matter about which he testifies.

(d) The extent of his opportunity to perceive any matter about which he testifies.

(e) His character for honesty or veracity or their opposites.

(f) The existence or nonexistence of a bias, interest, or other motive.

(g) A statement previously made by him that is consistent with his testimony at the hearing.

(h) A statement made by him that is inconsistent with any part of his testimony at the hearing.

(i) The existence or nonexistence of any fact testified to by him.

(j) His attitude toward the action in which he testifies or toward the giving of testimony.

(k) His admission of untruthfulness.”

The court makes credibility findings for all the witnesses who testified.

The court makes the following credibility findings:

(1) Mohammad Ali

(2) Sultan Tipu

The court finds that Tipu is credible. His testimony had the hallmarks of common sense and consistency. His testimony that his name was on title and the loan documents to facilitate the purchase of the Property makes sense. Ali, in his closing argument brief attacks Tipu’s credibility primarily based on lack of corroboration, inconsistent statements and lack in common sense. The court notes that both Tipu and Ali have little or no corroboration for most of their testimony and recitation of events. It is a credibility contest of “he said versus he said.”  Hence, the court is forced to determine what set of facts makes sense from a common sense and objective viewpoint. Tipu’s testimony adheres much more to common sense than Ali’s testimony.

The court notes that neither Tipu nor Ali have any independent evidence of the source of their funds for the down payment for the Property. The receipt (Exhibit 4) in Ali’s name does not show the source of the funds. Ali’s claims that as an enterprising and intelligent businessman he had $100,000 on hand in his own bank account at the time of the purchase is not credible given his background and total lack of corroboration.  Tipu’s version that the source of the funds was from family connections in Bangladesh from his cousin Sultan Shomeer  and family property in Bangladesh makes sense in that the entire purchase of the Property was a family enterprise to find secure and affordable housing for the aging parents of Tipu and Ali. Tipu’s alleged inconsistencies relating to the structure of his source of financing from Bangladesh, i.e., a non-recourse loan with family property in Bangladesh securing the loan, or repayment to Tipu of a prior loan, is immaterial when the same cousin is involved in the foreign financing. The point is that Tipu admits that he did not have the funds on hand for the down payment while Ali makes the incredulous statement that he had a bank account with $100,000 on hand for the purchase of the Property. 

Ali’s efforts to undermine Tipu’s credibility based on Tipu’s tax returns for 2014 and 2015 fall short as well. Tipu claimed deductions for rents, interest, and expenses on the Property as did Ali. Both had the right to do so given the joint venture nature of the enterprise for the Property. Both used the same tax preparer. The point is that Tipu taking this “tax posture” on his tax returns pursuant to a tax preparer’s advice, which is different from Ali claiming specific amounts of categories of expenses when the numbers on the tax return which Ali provided to the tax preparer were not accurate in a material way. 

The court also makes its credibility finding of Tipu based on the court’s observations of his demeanor on the witness stand. The court finds that Tipu is credible. The court finds that Ali’s testimony is credible based on EC section 780(a), (b), (c), and (g).

(3) Jeff Davani

The court finds that Davani is not credible. When Tipu’s attorney contacted Davani about his testimony on this case pursuant to a trial subpoena issued by plaintiff’s attorney, Davani’s attorney responded that Davani had no recollection of events that occurred “dating back two decades” and that Davani’s memory is impaired due to old age and poor health. See Exhibit 116. In the same email, Davani’s attorney says his representation of Davani was limited to the email in question (Exhibit 116). During Davani’s testimony at trial, he stated that he had spoken to plaintiff’s attorney before he testified in court, but that the discussion was limited to the mechanics of appearing in court to testify. However, in court Davani testified in great detail about the purchase of the Property and that he was assisting Ali with the purchase of the Property because he was a friend of Ali’s. 

In other words, Davani had no explanation as to why his memory of events that occurred over two decades was suddenly refreshed other than plaintiff’s attorney somehow refreshing Davani’s memory. For Davani to admit that his memory was refreshed would be to reveal that Plaintiff’s attorney had “prepped” him for his testimony, which of course would have undermined his credibility. 

Davani was testifying as a longtime friend of Ali.  Due to that friendship, the court discounts Davani’s credibility.  The court specifically rejects Davani’s testimony that he reviewed Ali’s bank records before the purchase and concluded that Ali had the financial wherewithal to make the down payment without Tipu’s assistance. The court finds that Davani is not credible on this point. Davani did testify that he told Ali that the bank would require a co-signor on the loan because Ali had no source of income. 

Davani could have testified in court consistent with his attorney’s letter (Exhibit 116) that he had no memory of events which occurred over two decades ago. Instead, Davani conveniently testified in detail from a mysteriously refreshed memory to help his friend Ali in this lawsuit. 

The court also makes its credibility finding of Davani based on the court’s observations of his demeanor on the witness stand. The court finds that Davani is not credible based on EC section 780(a), (b), (c), (f) and (h).

(4) Mohammad Alam

The court finds that Alam is not credible. Alam is one of the three other brothers of Ali. The main point of Alam’s testimony was to refute Tipu’s claim that Ali in 2019 wanted to raise the rent on his mother for the apartment and threatened her with eviction if she did not agree to pay the increased rent. Alam testified that he was in contact with his mother in 2019 and that she never informed him of Ali’s threats.  He also offered testimony about how rent was paid during the time Tipu stepped in to collect rent and how rent was paid previously, and whether Ali was ever late in paying the mortgage. It is clear that Alam’s testimony was offered to boost Ali’s testimony. The court finds that Alam’s testimony is not credible. Alam’s testimony has limited value in the court’s view because he is a family member taking sides in an emotional family feud.  His testimony was also at odds with other less controversial evidence presented.

The court also makes its credibility finding of Alam based on the court’s observations of his demeanor on the witness stand. The court finds that Alam is not credible based on EC section 780(a), (b), (c), and (f).

RULING:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

 DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE 

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