Judge: Robert C. Longstreth, Case: 37-2022-00039599-CU-OR-CTL, Date: 2024-04-05 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 04, 2024

04/05/2024  08:30:00 AM  C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert Longstreth

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Civil - Unlimited  Other Real Property Summary Judgment / Summary Adjudication (Civil) 37-2022-00039599-CU-OR-CTL VELASCO TELLO VS ENCORE AMERICAN INVESTMENTS INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Plaintiff's Motion for Summary Judgment, or Alternatively for Summary Adjudication (ROA 42), is DENIED.

In this lawsuit, Plaintiff asserting causes of action for 1) Cancellation of a Written Instrument, 2) Slander of Title, 3) Wrongful Foreclosure, and 4) Quiet Title. Plaintiff is seeking cancellation of a 2018 deed of trust executed by his wife, Magda Juarez, because the deed of trust was not also executed by Plaintiff.

(Compl. ¶ 7.) Plaintiff contends this is a violation of Family Code section 1102, which provides in part that 'both spouses, either personally or by a duly authorized agent, are required to join in executing an instrument by which that community real property or an interest therein... is sold, conveyed, or encumbered.' (Fam. Code § 1102(a).) In his motion Plaintiff seeks summary judgment, or alternatively summary adjudication of the following issues: 1) the 2018 deed of trust must be cancelled, 2) the 2018 deed of trust violates Family Code section 1102, 3) Plaintiff's title to the subject property was slandered by Defendants, and 4) Plaintiff is the rightful owner of the subject property and is entitled to quiet title.

All of Plaintiff's causes of action, and all of the issues he seeks to have summarily adjudicated, depend upon a showing that Plaintiff had an interest in the subject property in 2018 when the deed of trust was executed, and that he now has the ability to enforce that alleged interest. In opposition, Defendants Encore American Investments, Inc. ('Encore') and FDI Lender Services, Inc. ('FDI') offered evidence that Plaintiff quitclaimed his interest in the subject property to Juarez in 2017. (Def. Resp. Sep. Stmt. ¶¶ 4-6, 10-11, 23, 25; Def. Addl. Facts at ¶¶ 1-4.) Although Plaintiff argues that this was done as part of a lender requirement for refinancing, and was not intended to be a transmutation of the property, even if this eliminated any triable issue of fact as to transmutation, he does not attempt to make any showing that title was ever in his name, or that the home, which he refers to as 'my wife's home' and which, from the information provided in his declaration, was necessarily acquired by his wife before marriage, ever was or should be considered community property. (Plaintiff's Declaration, ROA 38; Declaration of Magda Juarez, ROA 39.) He makes no showing that any community contributions to the home exceeded the benefit received from the home by the community. (Id.) Thus, there are clearly triable issues of material fact as to whether Plaintiff ever had an interest in the property, precluding both summary judgment and summary adjudication of all four of the issues Plaintiff identified in his notice of motion.

Moreover, even if Plaintiff had an interest in the property, he has not demonstrated that he can now rely on this interest to assert that the 2018 deed of trust violates Family Code section 1102. This statute Calendar No.: Event ID:  TENTATIVE RULINGS

3111333  5 CASE NUMBER: CASE TITLE:  VELASCO TELLO VS ENCORE AMERICAN INVESTMENTS INC  37-2022-00039599-CU-OR-CTL provides that 'An action to avoid an instrument mentioned in this section, affecting any property standing of record in the name of either spouse alone, executed by the spouse alone, shall not be commenced after the expiration of one year from the filing for record of that instrument in the recorder's office in the county in which the land is situated.' (Fam. Code § 1102(d).) It is undisputed the 2018 deed of trust was recorded on May 17, 2018. (Def. Resp. Sep. Stmt. at ¶ 12.) Thus, Plaintiff had until May 17, 2019 to bring this action. However, the Complaint was not filed until October 3, 2022. Plaintiff makes no attempt to argue that he has brought his claim within the statute of limitations.

The court notes that Plaintiff also does not dispute that his claims are barred by res judicata.

Defendants' requests for judicial notice (ROA 34) are granted. (Evid. Code § 452(c), (d).) Once confirmed, this ruling shall be the final ruling of the court and no further written order is required.

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