ward appellants opening brief.70150839

8/9/2019 Ward Appellants Opening Brief.70150839

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2 Civ. No. B211764d

LASC No. BC377611

COURT OF APPEAL

STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THERESA MARIE WARD,

Plaintiff and Appellant,

vs.

ANITA M. MUNOZ, individually and as

Trustee of the Family Trust of Hortence

Luna; FAMILY TRUST OF HORTENCE

LUNA,

Defendants and Respondents.

APPEAL FROM

SUPERIOR COURT OF LOS ANGELES COUNTYHONORABLE TERESA SANCHEZ-GORDON, JUDGE

__________________________________________

APPELLANTS OPENING BRIEF

________________________________________

GLENN WARD CALSADA, SBN 134589

LAW OFFICES OF GLENN WARD CALSADA

2237 WEST SUNSET BOULEVARDLOS ANGELES, CALIFORNIA 90026

Tel. (213) 413-0048 / Fax. (213) 413-4264

Attorney for Plaintiff and Appellant

Theresa Marie Ward

LYNARD C. HINOJOSA , SBN 041397

HINOJOSA & WALLET

2215 COLBY AVENUELOS ANGELES, CALIFORNIA 90064

Tel. (310) 473-7000 / Fax. (310) 473-1730

Attorneys for Defendants and Respondents Anita

M. Munoz and Family Trust of Hortence Luna


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CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

Counsel of Record hereby certifies that interested entities or parties are listed

below:

1. Theresa Marie Ward, Plaintiff and Appellant

2. Anita M. Munoz, an individual and as trustee of the Family Trust of Hortence

Luna, Defendant and Respondent

3. Family Trust of Hortence Luna, Defendant and Respondent

Dated Respectfully submitted,

Law Offices of Glenn Ward Calsada

Glenn Ward Calsada, Esq.Attorney for Plaintiff and Appellant

Theresa Marie Ward

Glenn Ward

Calsada

Digitally signed by Glenn Ward Calsada

DN: cn=Glenn Ward Calsada, o=Law

Offices of Glenn Ward Calsada, ou,

[email protected], c=US

Date: 2009.03.12 15:05:04 -07'00'


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TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF APPEALABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF ISSUES ON APPEAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

LEGAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

A. BASED ON STIPULATED FACTS (AA 196-198), APPELLANT BECAME

100% FEE OWNER OF THE MARYVINE PROPERTY UPON LUNAS

DEATH AND, THEREFORE, APPELLANT IS ENTITLED TO

JUDGMENT IN HER FAVOR AS A MATTER OF LAW. . . . . . . . . . . . . 22

B. CIVIL CODE SECTION 1170 IS NOT A DEFENSE TO RESPONDENTS

FAILURE TO TIMELY RECORD THE QUITCLAIM DEED . . . . . . . . . . 25

C. CIVIL CODE SECTION 683.2 SUBDIVISION (a)s OTHER MEANS

PROVISION IS NOT AN EXCEPTION TO SUBDIVISION (c)s RECORDING

REQUIREMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

D. THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING IN

EVIDENCE THE REAL ESTATE CHECK LIST

(EXHIBIT 38) [AA 349-350]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36


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TABLE OF AUTHORITIES

STATE CASES

Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190 . . . . . . . . 33

Blank v. Kirwan (1985) 39 Cal.3d 311 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Broden v. Marin Humane Society (1999) 70 Cal.App.4th 1212 . . . . . . . . . . . . . 21

Calif. Teachers Assn. v. San Diego Comm. College Dist. (1981) 28 Cal.3d 692 21

Cady v. Purser(1901) 131 Cal. 552 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887 . . . . . . . . . . . . . . . . . . . . . 31

Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416 . . . . . . . . . . . . . . . . . . 33

Dorn v. Solomon (1997) 57 Cal.App.4th 650 . . . . . . . . . . . . . . . . . . . . 1, 2,6,21,24

Dougery v. Bettencourt (1931) 214 Cal. 455 . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Eckhardt v. Morley (1934) 220 Cal. 229 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Emeryville Redevelopment Agency v. Harcros Pigments, Inc. (2002)

101 Cal.App.4th 1083 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Estate of England(1991) 233 Cal.App. 3d 1 . . . . . . . . . . . . . . . . . . . . . 26,27,29,30

Estate of Heggstad(1993) 16 Cal.App.4th 943 . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Grothe v. Cortlandt Corp. (1992) 11 Cal. App. 4th 1313 . . . . . . . . . . . . . . . . . . 22

Harustak v. Wilkins (2000) 84 Cal.App.4th 208 . . . . . . . . . . . . . . . . . . . . . . . . . 21

In re Marriage of Connolly (1979) 23 Cal.3d 590 . . . . . . . . . . . . . . . . . . . . . . . . 31

In re Marriage of Slayton & Biggums-Slayton (2001) 86 Cal.App.4th 653 . . . . 21

In re Nash (1951) 102 Cal.App.2d 220 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Kavanaugh v. West Sonoma County Union High School Dist. (2003)

29 Cal.4th 911 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Lewis v. Superior Court(1994) 30 Cal.App.4th 1850 . . . . . . . . . . . . . . . . . . . . . 25

Patience v. Snyder(2000) 78 Cal.App.4th 1001 (Rehearing Granted) . . . . . . . . 34

Re v. Re (1995) 39 Cal.App.4th 91 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21,22

State Farm Fire & Casualty Co. v. Pietak(2001) 90 Cal.App.4th 600 . . . . . . . . 21

Tenhet v. Boswell(1976) 18 Cal. 3d 150 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22


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T & O Mobile Homes Inc. v. United California Bank(1985)

40 Cal. 3d 441 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Wade v. De Bernardi (1970) 4 Cal.App.3d 967 . . . . . . . . . . . . . . . . . . . . . . . . . 32

Watkins v. Wilhoit(1894) 104 Cal. 395 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

STATE STATUTES

Civil Code 683.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Civil Code 683.2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,9,20,22,29

Civil Code 683.2(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20,22,26.28,29,30

Civil Code 683.2(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2,6,8,34

Civil Code 683.2(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30Civil Code 1170 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,8,20,21,25,26,28,33,34

Code of Civil Procedure 904.1, subds. (a)(1) & (2) . . . . . . . . . . . . . . . . . . . . . . 2

Code of Civil Procedure 761.020, subds. (a)-(e) . . . . . . . . . . . . . . . . . . . . . . . . . 7

Evidence Code 1201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Evidence Code 1271 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Evidence Code 604 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Evidence Code 630 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Evidence Code 641 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Family Code 2581 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Government Code 27320 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

RULES

Los Angeles Superior Court Rule 7.9(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

TREATISES

5 Miller & Starr, Cal. Real Estate (3d ed. 2001) Recording and Priorities,

11.21, pp.58-59 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26


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I

INTRODUCTION

This appeal concerns an action for cancellation of deed, quiet title and injunctive

relief brought by Plaintiff and Appellant Theresa Marie Ward against Defendants and

Respondents Anita M. Munoz and the Family Trust of Hortence Luna. Appellant appeals

a judgment after court trial in favor of Respondents. The judgment must be reversed

because the trial court erroneously deemed recorded prior to death a quitclaim deed

executed by decedent Hortence Luna severing her joint tenancy with Appellant and

transferring her entire 50% interest in the subject real property to Respondents. However,

to effectively terminate the right of survivorship, California Civil Code 683.2(c)(2)

requires any deed unilaterally severing a joint tenancy to be notarized not earlier than

three (3) days before death and recorded not later than seven (7) days after death.

Stipulated facts show that the quitclaim deed in question was notarized eight (8) days

prior to decedents death and actually recorded almost three (3) months after her death

and subsequent to Appellants recording of an Affidavit - Death of Joint Tenant. Under

these undisputed facts, Appellant is entitled to judgment as a matter of law. (See, Dorn v.

Solomon, 57 Cal.App.4th 650, 67 Cal.Rptr.2d 311 (1997).) Therefore, the judgment in

favor of Respondents must be reversed.


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II

STATEMENT OF APPEALABILITY

This is an appeal of a September 2, 2008, Judgment on Complaint for Cancellation of

Deed; Quiet Title to Real Property and Injunctive Relief in favor of Respondents. (Appellant's

Appendix [hereinafter "AA"] 226-228.) The notice of appeal was timely filed on October

24, 2008. (AA 224.) On or about October 22, 2008, Respondents filed an application for

an amended judgment to specify costs on a blank space in the signed original Judgment.

(AA 231-232.) Respondents represented that the amended judgment does not affect the

substance of the judgment, nor does it create any misrepresentation of the Courts order,

and should be corrected. (AA 231-232.) On October 31, 2008, the trial court amended

the original judgment to specify the recovery of costs of $2868. (AA 235-237.) On

November 12, 2008, Respondents filed notice of entry of the amended judgment. (AA

239.) The September 2, 2008, judgment, as amended, is an appealable judgment. (Code Civ.

Proc. 904.1, subd. (a)(1) & (2).)

III

STATEMENT OF ISSUES ON APPEAL

1. Whether, based on stipulated facts (AA 196-198), Appellant is entitled to

judgment as matter of law? (Dorn v. Solomon (1997) 57 Cal.App.4th 650, 67

Cal.Rptr.2d 311.)


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Lot 52 of Tract 26385, as per map recorded in Book 681,

pages 8-10 of maps in the Office of the County Recorder for

the County of Los Angeles. (AA 196; Stipulated Fact No.

1.)

Prior to March 2007, the Maryvine Property was held by Hortence Luna (Luna)

and Theresa Ward, pursuant to that certain Grant Deed of Joint Tenancy dated December

16, 1992, executed by Hortence Luna, as Grantor, to Hortence Luna and Theresa Ward,

mother and daughter, as JOINT TENANTS, and recorded in the Official Records of the

Recorders Office of Los Angeles County on January 19, 1993 as Instrument No. 93-

111177 (AA 196-197, 245; Stipulated Fact Nos. 2 and 3 ). Luna died on Thursday,

March 29, 2007 at 6:10 a.m. (AA 250.)

Following the death of Luna, Appellant executed that certain sworn Affidavit -

Death of Joint Tenant attesting to Lunas death on March 29, 2007. Appellant recorded

said document and the attached Certificate of Death in the Official Records of Recorders

Office of Los Angeles County of Los Angeles on April 13, 2007, as Instrument No.

20070896845. (AA 248; Stipulated Fact Nos. 9 & 10.) The recording stamp on the

Lead Sheet bears the date, time and instrument number of the recorded document and

mentions the word counter. (AA 249.) When asked by the court, Appellant explained

that she presented the Affidavit in person at the recorders office for recording. (RT 87.)

Two months later, that certain Quitclaim Deed conveying Lunas interest in the


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Maryvine Property to the Family Trust of Hortence Luna, notarized on March 21, 2007,

by Josie Chua, a notary public, was recorded in the Official Records of the Recorders

Office of the County of Los Angeles on June 21, 2007, at 11:25 a.m., as Instrument No.

20071498265. (AA 197, 252-253; Stipulated Fact Nos. 6, 7 & 8.) The Lead Sheet

bears the date, time and instrument number of the recorded document and, like the

affidavit of death, mentions the word counter. (AA 253.)

Respondent Family Trust of Hortense Luna is a trust instrument dated March 21,

2007, created and governed by California law. (AA 197, 255-312; Stipulated Facts 4 &

5.) Respondent Anita Munoz (Ms. Munoz) is an individual and trustee/beneficiary of

the Family Trust of Hortense Luna. (AA 264 & 311.) Ms. Munoz is Lunas grand-

daughter and Appellants niece. (AA 264.) Ms. Munozs current husband Robert Munoz

was nominated as Lunas successor trustee. (AA 270.)

In February 2007, Ms. Munoz moved in with Luna and acted as her care custodian.

(AA 174, fn. 1.) Ms. Munoz participated in the making of the trust instrument by

contacting attorney Scott Edward Darling on Lunas behalf. (Reporters Transcript

(RT) 131-135.) Luna never actually met the attorney. (RT 69.) A mobile notary public,

Josie Chua, arrived at Lunas house and witnessed her signature on the trust instrument

and Quitclaim Deed. (AA 197; Stipulated Facts Nos. 4 & 6.) Ms. Munozs ex-husband

Maria Jaramillo served as a witness to the signing of the trust instrument. (AA 197;

Stipulated Fact No. 4.) The trust instrument was never recorded.


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In her Complaint, Appellant contended that Ms. Munoz exercised undue influence

over Luna and, given the sequence of events, prayed for cancellation of the Quitclaim

Deed recorded, post-death, and subsequent to the recording of the Affidavit of Death.

Appellant sought a determination that Respondents herein have no right, title, interest or

estate in the Maryvine Property. (AA 1-22.) A Notice of Lis Pendens was recorded on

September 19, 2007, in the Official Records of the Office of County Recorder for the

County of Los Angeles as Instrument No. 20072159657, and the Lead Sheet thereon

mentions the word counter. (AA 23-29.)

In their Answer, Respondents generally denied the allegations of the complaint and

assert only one affirmative defense: that Appellant failed to state facts sufficient to state a

cause of action. (AA 79-80.)

On April 2, 2008, Appellant filed a motion for Judgment on the Pleadings against

Respondents Anita M. Munoz and Family Trust of Hortence Luna. (AA 32.) The motion

was made on the basis that Appellant is 100% fee owner of the Maryvine Property in that

she acquired 100% fee ownership by means of a properly recorded affidavit of death of

joint tenant Hortence Luna and the quitclaim deed in favor of defendant Family Trust of

Hortence Luna was posthumously recorded more than seven (7) days after the death of

joint tenant. (See, Civil Code 683.2(c)(2);Dorn v. Solomon, 57 Cal.App.4th 650, 67

Cal.Rptr.2d 311 (1997).) Consequently, Plaintiffs right of survivorship was not

terminated and Defendants Anita Munoz and Family Trust of Hortence Luna have no


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right, title, interest or estate in the subject property and, therefore, Plaintiff is entitled to

judgment as a matter of law. (AA 33.)

Respondents opposed the motion contending that Appellant was attempting to

bring a motion for summary judgment without complying with procedural requirements.

(AA 82.) Respondents further argued that Decedent severed the joint tenancy when she

transferred her interest in the Maryvine Property to the trust. (AA 84.) In the

opposition, Respondents admitted the quitclaim deed was recorded post-death on June

21, 2007. (AA 87.) There was no mention of the mailing of the deed prior to death.

On May 21, 2008, the court ruled: Plaintiffs Motion for Judgment on the

Pleadings is denied. (See Code of Civil Procedure section 761.020, subds. (a) -(e).) (AA

120.)

On June 13, 2008, Appellant filed her Trial Brief, Witness List and Exhibit List.

(AA 122-151.)

On June 18, 2008, Respondents filed their Witness List and Exhibit List. (AA

152-164.) Respondents made no mention of a Real Estate Check List on their

Exhibit List.

On June 20, 2008, the court ordered Respondents to file and serve a trial brief by

June 25, 2008 noon. (AA 170.)

On June 25, 2008, Defendant Anita M. Munoz filed a Trial Brief. (AA 171-186.)


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Concerning the recording date of the Quitclaim Deed, the brief stated the following: The

Quitclaim deed was officially recorded with the Los Angeles County Recorders office on

June 21, 2007 and deposited with the Los Angeles County Recorders office prior to June

21, 2007. In footnote 2, the brief stated: Theresa executed and recorded her Affidavit

of Death of Joint Tenant on April 13, 2007, after the transfer of Decedents interest in

Maryvine Property to the Trust. Most importantly, Anita deposited the Quitclaim deed

with the Los Angeles Recorders office prior to April 13, 2007. (AA 176.) Nowhere in

the brief did Respondents mention that the deed was mailed to the Los Angeles

Recorders office by the Darling Law Office. During trial, Ms. Munoz denied taking

the Quitclaim Deed to the recorders office to get it recorded. (RT 167:21-27.)

A court trial was set to commence on July 1, 2008. (AA 187-188.) The parties

filed a stipulation on disputed issues to be determined at trial. (AA 189-190.) The triable

issues were identified as follows:

1. Whether the deed is considered recorded when it is deposited

with the Los Angeles County Recorders Office as set forth in Civil Code

section 1170;

2. Whether the quitclaim deed was acknowledged before a notary

public within the time set forth in Civil Code section 683.2(c)(2);

3. Whether the decedents execution of Family Trust of Hortence

Luna dated March 21, 2007 and the transfer of her entire interest in the


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Maryvine Property to the trust by execution of the quitclaim deed dated

March 21, 2007 constitutes a severance of joint tenancy within the language

other means as set forth in Civil Code section 683.2(a); and

4. Whether the decedents trust and quitclaim deed dated March 21,

2007 were the result of indue influence. (AA 190.)

On July 2, 2008, the parties also stipulated to several facts and exhibits (as

mentioned above). (AA 196-198; RT 1.) The issue of undue influence was to be tried

after issues relating to the recording of the deed and severance of the joint tenancy. (RT

2.) On the same day, Appellant filed a Second Supplemental Trial Brief responding to the

deemed recorded argument raised in Ms. Munozs Trial Brief (AA 191-195). This

supplemental brief was accepted and considered by the trial judge over Defendants

objection. (RT 41-49.)

During trial, Ms. Munoz presented the testimony of trust attorney Scott Edward

Darling. (RT 51-83.) Mr. Darling testified that the Quitclaim Deed executed on March

21, 2007, did not get back to his office until the following Monday [March 26, 2007].

THE NEXT DAY [TUESDAY, MARCH 27, 2007], WE MAILED IT TO THE

COUNTY RECORDER FOR LOS ANGELES. (RT 63.) He further testified IT

WOULD HAVE BEEN SENT NORMALLY PROBABLY EITHER REGULAR MAIL

OR PRIORITY MAIL. ... (RT 65.) IT USUALLY ONLY TAKES A DAY OR TWO


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BUT GETTING THEM BACK SOMETIMES AFTER ITS RECORDED IS A LONG

TIME. (RT 66.) Luna died on Thursday, March 29, 2007 at 6:10 a.m.. (AA 250.)

Mr. Darlings only record that the Quitclaim Deed was mailed to County

Recorders office on March 27, 2007, was a document entitled Real Estate Check List.

This document was not listed on the Defendants Exhibit List. Appellants counsel

immediately objected to the document as follows:

MS. SMITH: YOUR HONOR, I WOULD LIKE TO INTRODUCE

INTO EVIDENCE A DOCUMENT CALLED REAL ESTATE CHECKLIST

WHICH SHOWS THAT THE DOCUMENT WAS MAILED OUT ONMARCH 27, 2007. (R.T. 63:25-28.)

MR. CALSADA: I HAVENT SEEN THIS DOCUMENT, YOUR

HONOR. THIS IS AN ITEM THATS NOT LISTED ON THEIR EXHIBIT

LIST.

THE COURT: PRESENT IT TO PLAINTIFFS COUNSEL,

PLEASE. WHAT DID YOU CALL THE DOCUMENT?

MS. SMITH: ITS CALLED A REAL ESTATE CHECKLIST.

MR. CALSADA: YOUR HONOR, I OBJECT. THIS HAS INITIALS

BY SOMEBODY NAMED L H AND I DONT THINK THAT PERSON IS

HERE TO AUTHENTICATE THIS CHECKLIST.

THE COURT: VERY WELL.

MS. SMITH: YOUR HONOR, I WOULD LIKE TO REQUEST

THAT THIS BE ADMITTED BECAUSE THIS IS IN THE FILE OF MR.

DARLINGS OFFICE AND MR. DARLING IS FAMILIAR WITH THIS

DOCUMENT AND HE CAN READ FROM THE DOCUMENT INTO THE

RECORD WHAT THE DOCUMENT SAYS.


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THE COURT: I WILL ALLOW THAT. AND THIS WOULD BE?

(RT 64:1-16.)

THE COURT: LAY THE FOUNDATION AND WELL SEE

WHETHER ITS GOING TO BE ADMITTED OR NOT.

THE WITNESS: YES, I RECOGNIZE THAT DOCUMENT.

Q. BY MS. SMITH: AND CAN YOU PLEASE TELL THE COURT

WHAT THIS DOCUMENT REPRESENTS?

A. THIS IS A FORM WE USE KEEPING TRACK OF DEEDS ON

CLIENTS FILES FOR ESTATE PLANNING. THIS PARTICULAR ONE

AS IT INDICATES ON THE DOCUMENT IT TALKS ABOUUT A LOT 52

AND APN LETTER. THATS THE INFORMATION REGARDING THEPROPERTY IN EL MONTE FOR MS. LUNA AND THE DATE THERE IS

THE DATE THAT WAS SENT TO THE COUNTY RECORDERS OFFICE,

WHICH IS WHAT WE ALWAYS DO. WE MARK DOWN WHEN WE

SEND THINGS AND WHEN WE PROCESS THINGS AND THE INITIALS

THERE ARE L H WHICH WOULD BE LINDSEY HUGHES WHICH IS

ONE OF MY SECRETARIES.

Q. THANK YOU. AND WHEN YOU SENT THE DEED, THE QUIT

CLAIM DEED TO THE L.A. COUNTY RECORDERS OFFICE, WAS IT

IN A RECORDABLE FORM WITH ALL THE NECESSARY FEES AND

PAPERWORK?

A. YES.

THE COURT: ASK HIM HOW IT WAS SENT. LET HIM TELL US.

Q. BY MS. SMITH: HOW WAS IT SENT, MR. DARLING?

A. IT WOULD HAVE BEEN SENT NORMALLY PROBABLY

EITHER REGULAR MAIL OR PRIORITY MAIL. IT WOULD HAVE

BEEN SELF-ADDRESSED STAMPED ENVELOPE. IT WOULD HAVE

ALL THE FEES AND CHECKS WITH IT. IT WOULD HAVE BEEN THE

PRELIMINARY CHANGE OF OWNERSHIP NOTICE WITH ALL THOSE


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(RT 65) THINGS SIGNED AND SENT TO THE RECORDERS OFFICE.

JUST A NORMAL TYPE RECORDING WHERE WE SEND IT OFF WITH

ALL THE INFORMATION, ALL THE FEES, AND ALL THE

SIGNATURES AND EVERYTHING.

Q. AND AS FAR AS YOU ARE CONCERNED, BASED ON THE

ORDINARY COURSE OF BUSINESS, DID YOU CONSIDER THIS AS

DEPOSITED WITH THE LOS ANGELES COUNTY RECORDERS

OFFICE ONCE IT WAS MAILED OUT?

A. WE EXPECTED IT TO BE FILED IMMEDIATELY UPON

RECEIPT.

Q. AND IN YOUR EXPERIENCE, HOW MANY DAYS DOES IT

TAKE FOR THE LOS ANGELES COUNTY RECORDERS OFFICE TORECEIVE THIS DOCUMENT?

A. IT USUALLY ONLY TAKES A DAY OR TWO BUT GETTING

THEM BACK SOMETIMES AFTER ITS RECORDED IS A LONG TIME.

Q. DO YOU HAVE ANY IDEA WHY IT WOULD TAKE SO LONG

FOR THE LOS ANGELES COUNTY RECORDERS OFFICE TO

ACTUALLY RECORD THE DOCUMENT?

A. I DO NOT HAVE ANY KNOWLEDGE WHY THE WOULD

TAKE SO LONG.

Q. IS IT UNCOMMON THAT SOMETIMES THEY DO TAKE SO

LONG TO RECORD A DOCUMENT?

A. ID SAY ITS UNCOMMON FOR THEM TO TAKE SO LONG

TO RECORD A DOCUMENT. I THINK THAT LIKE I SAID, IT TAKES

A LONG TIME TO GET IT BACK SO.

THE COURT: LET ME INTERJECT HERE. WHATS THE DATE

OF THE RECORDATION? (RT 66)

MS. SMITH: JUNE 21 .ST


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THE COURT: OKAY. ...(RT 67:1-2.)

On cross-examination, Mr. Darling testified as follows:

By Mr. Calsada:

Q. NOW, GO BACK TO EXHIBIT NUMBER THREE. QUIT CLAIM

DEED. IS IT YOUR TESTIMONY THAT THIS DOCUMENT WAS

MAILED TO THE L.A. COUNTY RECORDERS OFFICE?

A. YES.

Q. WHAT ADDRESS?

A. I DONT REMEMBER THE ADDRESS.

Q. DO YOU KNOW IF THE ENVELOPE HAD POSTAGE?

A. THE ENVELOPE WOULD HAVE HAD POSTAGE ON IT.

Q. DO YOU KNOW THAT?

A. DID I PHYSICALLY SEE THE ENVELOPE?

Q. DID YOU PHYSICALLY PERSONALLY SEE

A. NO, I DID NOT PHYSICALLY PERSONALLY SEE THE

ENVELOPE.

Q. WHO WOULD KNOW THAT?

A. PROBABLY ONE OF MY SECRETARIES WOULD KNOW

THAT.

Q. PROBABLY.

A. ONE OF THEM WOULD KNOW THAT, YES. I DONT KNOW


19/41


20/41

-15-

MR. CALSADA: I DO OBJECT TO THE DEFENDANTS REAL

ESTATE CHECKLIST THAT WAS PRESENTED. IT WAS NOT A

DOCUMENT THAT WAS IDENTIFIED IN THEIR EXHIBIT LIST. THIS

IS A DOCUMENT THATS PRESENTED TODAY. IVE HAD NO

OPPORTUNITY TO QUESTION THE PERSON WHO ALLEGEDLY

PREPARED THIS DOCUMENT AND I BELIEVE THAT IT IS IN THE

FORM OF THEIR DIRECT CASE-IN-CHIEF AND SHOULD HAVE

BEEN PROVIDED AT LEAST AS PART OF THEIR EXHIBIT BOOK. AT

THIS POINT IN TIME ITS NOT PRODUCED FOR IMPEACHMENT

PURPOSES.

IN ADDITION, I THINK IT LACKS IN FOUNDATION. WE DONT

REALLY KNOW FROM THE PERSON THAT PREPARED THE

DOCUMENT IF IT WAS PREPARED AT OR NEAR THE TIME THAT IS

STATED ON MARCH 27, 2007. WE DONT REALLY KNOW THAT.

IT SEEMS TO BE THE ONLY ITEM ON THE LIST OF ITEMS

THAT WERE MAILED OUT TO HORTENCE LUNA WHICH IS KIND OF

STRANGE TO ME SINCE OTHER ITEMS WERE BEING MAILED OUT.

THERES A LOT OF CORRESPONDENCE TO ANITA MUNOZ THAT

WAS BEING MAILED OUT AND THIS IS THE ONLY DOCUMENT

THAT IS ON THE CHECKLIST.

I THINK THAT THERES A LACK OF FOUNDATION AND ALSO

YOU HAVE NO INFORMATION AS TO HOW THE DOCUMENT WASMAILED.

YOU DONT HAVE AN ADDRESS. YOU DONT HAVE

INFORMATION AS TO SUFFICIENT POSTAGE, WHAT WAS THE

CONTENTS OF THE ENVELOPE, ANYTHING UNDER PENALTY OF

PERJURY. FOR ALL THOSE REASONS, I THINK THAT THE

DOCUMENT IS HEARSAY AND IT SHOULD NOT BE ADMITTED INTO

THIS CASE.

THE COURT: THANK YOU. (RT 83-84.)

[...]

MR. CALSADA: YOUR HONOR, THE TESTIMONY THAT YOU


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-16-

RECEIVED TODAY, HEARD TODAY FROM MR. DARLING IS

TESTIMONY THAT HE IS NOT CERTAIN WHEN THE DOCUMENT

WAS ACTUALLY RECEIVED BY THE L.A. COUNTY RECORDERS

OFFICE.

THERE IS SUBSTANTIAL DOUBT AS TO WHETHER OR NOT IT

WAS RECEIVED IN THE MAIL. THE EXHIBIT ITSELF, EXHIBIT 3,

PART OF THE STIPULATION, SHOWS THAT ITS STAMPED WITH

THE WORD COUNTER ON THAT, WHICH WOULD GIVE THE

INDICATION THAT THIS IS SOMETHING THAT OCCURRED IN THE

PUBLIC COUNTER.

THE COURT: THATS SPECULATION, COUNSEL. (RT 85:18-28.)

MR. CALSADA: I UNDERSTAND, AT THE SAME TIME YOUHAVE A SUBSTANTIAL DELAY WITH REGARD TO THE DOCUMENT

IN TERMS OF ITS BEING MAILED.

THE COURT: HOW DO WE KNOW ITS SUBSTANTIAL DELAY?

MR. CALSADA: FROM THE TIME PERIOD THAT IT WAS

MAILED IN TO JUNE 21 IS AT LEAST 90 DAYS.ST

THE COURT: I AGREE WITH THAT BUT HOW DO WE KNOWITS SUBSTANTIAL AND THAT IT IS NOT COMMON? I HAVENT

HEARD ANYTHING FROM THE RECORDERS OFFICE. ITS ALL

SPECULATION. (RT 86:1-10.)

[...]

MY CLIENT RECORDED AS PART OF THE STIPULATION, AN

AFFIDAVIT OF DEATH, EXHIBIT NUMBER TWO,. AN AFFIDAVIT OF

DEATH ... WAS RECORDED ON APRIL 13, 2007 BEFORE THE

RECORDING OF THE QUIT CLAIM DEED.

THE COURT: DID SHE GO THE COUNTER?

MR. CALSADA: ITS STAMPED RECORDED.


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-17-

THE COURT: BUT IT ALSO HAS COUNTER SO MY QUESTION

IS DID SHE GO THE COUNTER AND RECORD IT?

MR. CALSADA: YOUR HONOR, THE ANSWER TO THAT IS SHE

WENT TO THE COUNTYS OFFICE AND ACTUALLY PRESENTED

THE DOCUMENT THERE.

THE PLAINTIFF: YES, I DID.

MR. CALSADA: ON APRIL 13 AND THERES ALSO ON THISTH

DOCUMENT EXHIBIT 2 IS THE WORD COUNTER. (RT 87:7-21.)

[...]

THE COURT: ALL RIGHT, COUNSEL. PROCEED. YOU

MENTIONED DEEMED RECORDED. PROCEED ON THAT.

MR. CALSADA. YES, YOUR HONOR. I WANT TO BACK UP A

BIT. WHEN I READ THE DEFENDANTS TRIAL BRIEF, IT WAS MY

UNDERSTANDING BASED UPON THE BRIEF PAGE SIX, FOOTNOTE

NUMBER TWO, THAT ANITA DEPOSITED THE QUIT CLAIM DEED

WITH THE COUNTY RECORDERS OFFICE.

THIS THEORY OR THE STATEMENT ABOUT MR. DARLING ISNEW EVIDENCE. THIS IS SOMETHING THAT JUST CAME IN AND

THIS IS NOT WHAT THEY SAID WAS GOING TO BE THE BASIS OF

THEIR CASE IN THEIR TRIAL BRIEF.

I DONT KNOW WHAT GAME WERE PLAYING HERE. ALL I

KNOW IS THAT IM DEALING WITH TRYING TO FIGURE OUT

WHERE THEYRE GOING. ON THE ONE HAND IN THEIR BRIEF

THEYRE SAYING IT WAS ANITA WHO DEPOSITED THE

DOCUMENT AND NOW THEYRE SAYING ON, IT WAS MAILED IN.

ALL WE KNOW IS THAT THERE IS A COUNTER STAMP ON

JUNE 21, 2007 ON THAT DOCUMENT. (RT 88:4-21.)


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-18-

[...]

THE COURT: YES, I UNDERSTAND. YOURE CHALLENGING

WHETHER OR NOT IT WAS ACTUALLY TAKEN. DEPOSITED TO THE

RECORDERS OFFICE PRIOR TO THE APRIL PRIOR TO THE DEATH

OF ACTUALLY OF MARCH 29 .TH

MR. CALSADA: IN ORDER FOR THEM TO RAISE SOME SORT

OF PRESUMPTION THAT THE DOCUMENT WAS MAILED, THEY

NEED THE TESTIMONY OF A PERSON WHO SAYS THAT HOW THEY

ADDRESSED THE ENVELOPE, HOW THEY IF IT WAS PROPERLY

STAMPED TO THE COUNTY RECORDERS OFFICE TO

SUFFICIENTLY DO SO. YOU DONT HAVE THAT TESTIMONY HERE.

THE ACTUAL TESTIMONY, THE ACTUAL EVIDENCE THATYOU HAVE BEFORE YOU, WHATS IN THE STIPULATION AND IN

THE STIPULATION, YOU HAVE RECORDED INSTRUMENTS WITH

DATE STAMPS. THOSE RECORDED INSTRUMENTS ARE THE

COMPETENT EVIDENCE THAT YOU HAVE BEFORE YOU AND THAT

COMPETENT EVIDENCE WOULD SAY THAT THE DOCUMENTS

WERE RECORDED ON JUNE 21 AND THERES NO REASON TO SAYST

THAT THEY WERE DEEMED RECORDED ON ANY OTHER DATE.

YOU DONT HAVE ANY COMPETENT EVIDENCE OF THAT.

AND WHAT GETS TO BE ME IS THE FACT THAT I HAVE TODEAL WITH THE TRIAL BRIEF THAT SAYS THAT ANITA (RT 93:8-28)

DEPOSITED THE DOCUMENTS WITH THE COUNTY RECORDERS

OFFICE AND THEN SHE BRINGS IN A WITNESS WHO SAYS NO,

SOMEONE ELSE MAILED IT IN. (RT 94:1-3.)

By Minute Order dated July 2, 2008, the trial judge ruled:

Over the objection of plaintiffs counsel, exhibit 38 [Real Estate

Check List] is admitted in evidence. (AA 205.)

By Minute Order dated July 2, 2008, the trial judge also ruled:


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-19-

The court finds that the execution of the Trust and the transfer of the

Maryvine Property to the Trust was not the product of undue influence or the

Decedents lack of capacity. It has been shown that there was no undue

influence, coercion or fraud exercised over the Decedent by Anita, or any other

person.

It has further been shown that the Trust Quitclaim Deed transferring the

Maryvine Property to the Trust was solely a result of the freely exercised

testamentary intent and sound mind of the Decedent.

The court finds as to the issue of severance, the Decedent severed the

joint tenancy when she transferred her entire joint tenancy interest in the

Maryvine Property to the Trustee of the Trust for benefit of Decedent. The

court finds that as to the issue of recording, deposit of the Quitclaim Deed with

the Los Angeles County Recorders Office timely, was sufficient to

accomplish recording. (AA 206.)

By Minute Order dated July 8, 2008, the court granted Judgment for Defendant.

Counsel for Defendant was ordered to submit an appropriate judgment within 10 days.

(AA 210.) On September 2, 2008, the court entered Judgment for Defendants. (AA 214-

216.) The Judgment contained the following factual findings:

3. Hortence Luna severed the joint tenancy in the real property

located at 12643 Maryvine Street, El Monte, California 91732 when she


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-20-

transferred her entire interest in said real property to the Trustee of the

Family Trust of Hortence Luna dated March 21, 2007.

4. The deposit of the Quitclaim Deed executed by Hortence Luna on

March 21, 2007 wherein she conveyed her entire interest in the real

property located at 12643 Maryvine Street, El Monte, California 91732 with

the Los Angeles County Recorders office by the Law Offices of Scott

Darling is deemed as a recording under Civil Code section 1170 and

satisfies the requirements of Civil Code section 683.2 subdivions (a) and

(c). (AA 215.)

On October 24, 2008, Appellant timely filed a Notice of Appeal of Judgment after

Court Trial. (AA 218.)

On October 31, 2008, Respondents filed an Application for an Amended Judgment

to add costs. (AA 231-232.) The court signed the Amended Judgment on October 31,

2008, adding costs of $2868. No other changes were made. (AA 235-237.)

V

STANDARD OF REVIEW

At trial, the parties stipulated to all the relevant facts on the question of the

effectiveness of severance of the joint tenancy by recorded deed. (AA 196-198.) (See,

Dorn v. Solomon, 57 Cal.App.4th 650, 67 Cal.Rptr.2d 311 (1997).) Therefore, this court


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-21-

is called upon to interpret a statutory scheme (Civil Code 683.2 and 1170.) When the

issues on appeal involve the interpretation of statute (Kavanaugh v. West Sonoma County

Union High School Dist. (2003) 29 Cal.4th 911, 916; California Teachers Assn. v. San

Diego Community College Dist. (1981) 28 Cal.3d 692, 699), or the application of law to

undisputed facts (Emeryville Redevelopment Agency v. Harcros Pigments, Inc. (2002)

101 Cal.App.4th 1083, 1095;Harustak v. Wilkins (2000) 84 Cal.App.4th 208, 212), the

appropriate standard of review is de novo. (See also,Re v. Re (1995) 39 Cal.App.4th 91,

46 Cal.Rptr.2d 62.)

An appellate court reviews the trial courts ruling on the admissibility of evidence

for an abuse of discretion. (In re Marriage of Slayton & Biggums-Slayton (2001) 86

Cal.App.4th 653.) To preserve the right to challenge the admission of evidence on

appeal, a party must timely object in the trial court. (Broden v. Marin Humane Society

(1999) 70 Cal.App.4th 1212, 1227; State Farm Fire & Casualty Co. v. Pietak(2001) 90

Cal.App.4th 600, 610 [burden of demonstrating error rests on appellant].)


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-22-

VI

LEGAL ARGUMENT

A. BASED ON STIPULATED FACTS (AA 196-198), APPELLANT BECAME

100% FEE OWNER OF THE MARYVINE PROPERTY UPON LUNAS

DEATH AND, THEREFORE, APPELLANT IS ENTITLED TO JUDGMENT IN

HER FAVOR AS A MATTER OF LAW.

"A distinctive feature of joint tenancy, as opposed to other interests in land, is the

right of survivorship. This means that when one joint tenant dies, the entire estate belongs

automatically to the surviving joint tenant(s). [Citations.]" (Grothe v. Cortlandt Corp.

(1992) 11 Cal. App. 4th 1313, 1317 [15 Cal. Rptr. 2d 38].) The severance of a joint

tenancy transforms it into a tenancy in common by extinguishing the right of

survivorship. (Tenhet v. Boswell(1976) 18 Cal. 3d 150, 155 [133 Cal. Rptr. 10, 554 P.2d

330];Re v. Re (1995) 39 Cal. App. 4th 91, 96 [46 Cal. Rptr. 2d 62].)

A joint tenant may sever a joint tenancy in real property unilaterally by: (1)

executing and delivering a deed to a third person, (2) executing a deed to him or herself,

(3) executing a written declaration of severance, or (4) executing any other written

instrument evidencing an intent to sever. ( Civ. Code, 683.2, subd. (a).)

Civil Code 683.2(c) sets forth the mechanical requirements for severing a joint

tenancy. Civil Code 683.2(c), reads: "Severance of a joint tenancy of record by deed,


28/41

-23-

written declaration, or other written instrument pursuant to subdivision (a) is not effective

to terminate the right of survivorship of the other joint tenants as to the severing joint

tenant's interest unless one of the following requirements is satisfied: [] (1) Before the

death of the severing joint tenant, the deed, written declaration, or other written

instrument effecting the severance is recorded in the county where the real property is

located. [] (2) The deed, written declaration, or other written instrument effecting the

severance is executed and acknowledged before a notary public by the severing joint

tenant not earlier than three days before the death of that joint tenant and is recorded in

the county where the real property is located not later than seven days after the death of

the severing joint tenant."

Here, the Affidavit - Death of Joint Tenant was recorded two (2) weeks after

Lunas death. (AA 248-251.) However, the Quitclaim Deed (AA 252-254) was recorded

almost three (3) months after death. The trust instrument was never recorded. (AA 255-

312.) Given these undisputed facts, Appellants right of survivorship was never

terminated by the Quitclaim Deed or trust instrument. Upon the Lunas death, Appellant

became 100% owner of the Maryvine Property. (See,Dorn v. Solomon, 57 Cal.App.4th

650, 67 Cal.Rptr.2d 311 (1997).)

The events inDorn v. Solomon are substantially similar to this case. On

September 20, 1993, the wife therein executed a quitclaim deed purporting to transfer the

family home to her irrevocable trust. She unexpectedly died the following day. Ten days


29/41

Family Code 2581 provides, in part: For the purpose of division of property on1

dissolution of marriage or legal separation of the parties, property acquired by the

parties during marriage in joint form, including property held in tenancy in common, joint

tenancy, or tenancy by the entirety, or as community property, is presumed to be

community property.

-24-

later, the wifes estranged husband recorded an "Affidavit--Death of Joint Tenant" with

the county recorder. On October 25, 1993, the trustee of the irrevocable trust recorded

the quitclaim deed. The trustee appealed arguing that the wife had a right to transfer her

community property interest in the family home based on Family Code 2581. Finding1

that Family Code 2581 does not apply when a joint tenant dies, the Court of Appeals (4 th

District) ruled in favor of the husband noting the following:

Of course, [the wife] still could have legally severed the joint tenancy by

following the provisions of Civil Code section 683.2, which sets forth the requirements

for severing a joint tenancy. It appears from the record before us that this is what she was

trying to do. However, subdivision (c)(2) explicitly provides that the deed must be

recorded not later than seven days after the death of the severing joint tenant. Here, the

trustee did not record the deed until a month after [the wife] died, and thus it was invalid

under this section. (Dorn v. Solomon, 57 Cal.App.4th at 653, 67 Cal.Rptr.2d at 313,

emphasis added.)

Given theDorn case and the stipulated facts (AA 196-198) herein, the Quitclaim

Deed is invalid, constitutes a cloud on Appellants title and must be canceled and stricken

from the official records of the Recorders Office of the County of Los Angeles.


30/41

A recorded document does not impart constructive notice from the moment of2

recordation. Rather, the operative event is the proper indexing of the document. (Lewis v.

Superior Court(1994) 30 Cal.App.4th 1850, 1866.) "The policy objective of providing

constructive notice requires that the instrument be indexed and reproduced in such amanner that a third party can be informed of any interest reflected by the recorded

instrument. To impart notice, an instrument must be indexed and reproduced in the public

records in such a manner that it can be located readily and read by a subsequent party. If

an instrument cannot be located by searching the grantor and grantee indices of the public

records, the instrument does not constitute constructive notice and later bona fide

-25-

B. CIVIL CODE SECTION 1170 IS NOT A DEFENSE TO RESPONDENTS

FAILURE TO TIMELY RECORD THE QUITCLAIM DEED.

The trial court clearly erred in finding that Civil Code 1170 was an available

defense. Civil Code 1170 provides that: an instrument is deemed to be recorded when,

being duly acknowledged or proved and certified, it is deposited in the recorders office,

with the proper officer, for record. This provision was originally enacted in 1872.

According to the literal language of the statute, recordation is considered complete

when the subject document is deposited with the proper official. Whether it applies

depends on the purpose of the recordation requirement in Civil Code section 683.2.

The California Supreme Court held inDougery v. Bettencourt(1931) 214 Cal.

455, 6 P.2d 499, that Civil Code section 1170 did not apply where the purpose of a

recordation requirement is to give constructive notice to the world of the fact or content

of a recorded document. (Id. at p. 463, 6 P.2d 499.) Unless the actual indexing and filing

has been completed, a deemed recorded document cannot give such constructive

notice. Therefore, the Supreme Court decided, mere deposit is not sufficient to give2


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purchasers or encumbrancers are not charged with knowledge of its existence. Properindexing is necessary to enable the document to be located by subsequent parties. If it is

not properly indexed it cannot give notice because it cannot be located by a subsequent

party dealing with the property and later purchasers and encumbrancers are not charged

with knowledge of its existence or contents." (5 Miller & Starr, Cal. Real Estate (3d ed.

2001) Recording and Priorities, 11.21, pp. 58-59, fns. omitted.)

-26-

constructive notice; actual recordation must be completed. Section 1170 of the Civil

Code was never intended to apply to those situations where the recordation of the

instrument was intended as constructive notice to third persons. (Id. at p. 464, 6 P.2d

499; See also,Eckhardt v. Morley (1934) 220 Cal. 229, 30 P.2d 423.)

Section 1213 of the same code provides that a conveyance recorded as prescribed

by law from the time it is filed with the recorder for record is constructive notice of the

contents thereof to subsequent purchasers and mortgagees. Construing sections 1170

and 1213 together, the Supreme Court has held that wherever the purpose of the

recordation is to give constructive notice of the contents of the instrument, the mere

deposit of it with the recorder is not the equivalent of recordation. (Dougery v.

Bettencourt(1931) 214 Cal. 455, 461-465 [6 Pac. (2d) 499]; Cady v. Purser(1901) 131

Cal. 552 [63 P. 844]; Watkins v. Wilhoit(1894) 104 Cal. 395, 399 [38 P. 53].) The

responsibility for insuring that the instrument is actually recorded is properly placed on

the party seeking the protection offered by recordation. (T & O Mobile Homes Inc. v.

United California Bank(1985) 40 Cal. 3d 441, 709 P.2d 430, 220 Cal. Rptr. 627.)

The purpose of Civil Code 683.2(c) was explained inEstate of England(1991)


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Estate of England(1991) 233 Cal.App.3d 1, 284 Cal.Rptr. 361, held that an3

unrecorded will cannot sever a joint tenancy given the requirements of CC 683.2(c).

-27-

233 Cal.App. 3d 1, 6-7, as follows:3

The purpose of section 683.2, subdivision (c), is to avoid potentially

fraudulent behavior by the party who executes a document severing the

joint tenancy. The Law Revision Commission recommendation regarding

the 1985 amendment states that, [s]ince a severance may be made secretly,

there is an opportunity for fraud: A joint tenant may execute an undisclosed

severance, deposit the severing instrument with a third person, and instruct

the third person to produce the instrument if the severing joint tenant dies

first so the severed half may pass to his or her heirs or devisees. However, if

the other joint tenant dies first, the secret severing instrument may be

destroyed so that the surviving joint tenant will take the other half of the

property by survivorship, thereby becoming owner of the entire property.

[para.] . . . This new requirement [i.e., subdivision (c)] will prevent the

severing joint tenant from suppressing the severing instrument if the other

joint tenant dies first. (Recommendations Relating to Recording Severance

of Joint Tenancy (Jan. 1985) 18 Cal. Law Revision Com. Rep. (1985) pp.

253-254, fns. omitted; see, generally, Fetters, An Invitation to Commit

Fraud: Secret Destruction of Joint Tenant Survivorship Rights (1986) 55


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-28-

Fordham L.Rev. 173; Crawford, Destructibility of Joint Tenancies in Real

Property (1970) 45 State Bar J. 222.)

[...]

Section 683.2, subdivision (c), now ensures that a joint tenant cannot have it

both ways. Either the joint tenancy is severed and the joint tenant's right of

survivorship is lost, or the joint tenancy remains, denying the joint tenant

the right to devise his or her interest by will.

In this case, the first public notice of the March 21, 2007, Quitclaim Deed was

June 21, 2007. Two weeks after Luna death, record title showed that Appellant owned

the Maryvine Property as a 100% fee owner. Prior to June 21, 2007, no one other than

Ms. Munoz or Mr. Darling was publicly aware of the unrecorded trust instrument or the

Quitclaim Deed. Section 683.2(c)s short seven (7) day time-period to record a deed after

death was established to prevent precisely this type of long term defect in record title.

The trial court clearly erred in allowing Civil Code 1170 to act a defense in this case.


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683.2(a) provides: Subject to the limitations and requirements of this section, in4

addition to any other means by which a joint tenancy may be severed, a joint tenant may

sever a joint tenancy in real property as to the joint tenant's interest without the joinder or

consent of the other joint tenants by any of the following means: (1) Execution anddelivery of a deed that conveys legal title to the joint tenant's interest to a third person,

whether or not pursuant to an agreement that requires the third person to reconvey legal

title to the joint tenant. (2) Execution of a written instrument that evidences the intent to

sever the joint tenancy, including a deed that names the joint tenant as transferee, or of a

written declaration that, as to the interest of the joint tenant, the joint tenancy is severed.

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C. CIVIL CODE SECTION 683.2 SUBDIVISION (a)s OTHER MEANS

PROVISION IS NOT AN EXCEPTION TO SUBDIVISION (c)s RECORDING

REQUIREMENT.

The trial court also erred in finding that the joint tenancy was severed when Luna

transferred the Maryvine Property to an unrecorded trust instrument. For this finding, the

trial court implicitly relied upon Section 683.2(a)s statement recognizing other means

to sever a joint tenancy. With regards to the interplay between Section 683.2(a)s other4

means language and Section 683.2(c)s recording requirements, the court inEstate of

Englandheld:

Section 683.2, subdivision (c), requires that a document unilaterally

severing a joint tenancy be recorded in order to give the other joint tenants

constructive notice of the severance and to avoid fraud. Accordingly,

subdivision (a)'s inclusion of other means to sever a joint tenancy may not

be read to include a will which has not been recorded as required by


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Civil Code 683.2(d) provides very limited exceptions to the recording5

requirements: Nothing in subdivision (c) limits the manner or effect of: (1) A written

instrument executed by all the joint tenants that severs the joint tenancy. (2) A severance

made by or pursuant to a written agreement of all the joint tenants. (3) A deed from a

joint tenant to another joint tenant.

Appellant does not dispute that a written declaration of trust by the owner of real6

property, in which he names himself trustee, is sufficient to create a trust in that property,

and that the law does not require a separate deed transferring the property to the trust.

(See,Estate of Heggstad(1993) 16 Cal.App.4th 943, 950, 20 Cal.Rptr.2d 433: We

hasten to note, however, that to be effective as to strangers, the declaration of trust must

be recorded.)

-30-

subdivision (c)." See,Estate of England233 Cal.App. 3d at 6-7.

Notably,Estate of Englandnever actually decided whether a will is a written

instrument which, if notarized and recorded, can sever a joint tenancy. (See,Estate of

England233 Cal.App. 3d at p.7, fn. 7.) The mere failure to comply with 683.2(c)s

requirement to record the will was a sufficient legal basis, standing alone, to deny

severance of the joint tenancy. This is so because the recording requirement of 683.2(c)

is clear. To be effective, the severing instrument or deed must be recorded in the county

where the real property is located. Only a properly indexed instrument can give

constructive notice of its contents to the non-severing joint tenant. No other exception

applies. Here, the trial court made a clear error in law in finding that the joint tenancy5

was severed when Luna transferred her interest in the Maryvine Property to an

unrecorded trust instrument.6


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37/41

Surprise denotes some condition or situation in which a party to a cause is7

unexpectedly placed to his injury, without any negligence of his own . . . which ordinary

prudence could not have guarded against. (In re Nash (1951) 102 Cal.App.2d 220, 222;

Wade v. De Bernardi (1970) 4 Cal.App.3d 967, 971.)

Evidence Code 1271 states: Evidence of a writing made as a record of an act,8

condition, or event is not made inadmissible by the hearsay rule when offered to prove theact, condition, or event if: [] (a) The writing was made in the regular course of a

business; [] (b) The writing was made at or near the time of the act, condition, or event;

[] (c) The custodian or other qualified witness testifies to its identity and the mode of its

preparation; and [] (d) The sources of information and method and time of preparation

were such as to indicate its trustworthiness.

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matters worse, Respondents deliberately misled the court and Appellant by stating in their

Trial Brief: Most importantly, Anita deposited the Quitclaim deed with the Los Angeles

Recorders office prior to April 13, 2007. (AA 176.) A party should be able to prepare

her case based on the exhibits the opposing party indicates it will use, and should not be

put to the task of redefining her strategy after trial begins. Appellant was plainly

surprised and was given no reasonable opportunity to respond. (RT 103.)7

2. Lack of Foundation and Hearsay.

Exhibit 38 was admitted for its truth as a business record to establish proof of

mailing of the Quitclaim Deed on March 27, 2007. However, the analytical flaw in the8

trial court's reasoning was its failure to recognize and address the fact that the Real Estate

Check List contained multiple layers of hearsay. When multiple hearsay is offered, an

exception for each level of hearsay must be found in order for the evidence to be

admissible. (Evid.Code, 1201.) (Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100


38/41

Evidence Code 641 provides that "[a] letter correctly addressed and properly9

mailed is presumed to have been received in the ordinary course of mail." The

presumption provided by Evidence Code 641 is one affecting the burden of producing

evidence. (See Evid. Code, 630.) The presumption does not arise until the foundational

facts are established. (Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, 421; Evid.

Code, 604.)

-33-

Cal.App.4th 1190, 1203-1207 [911 dispatch log].) Mr. Darling admitted that he did not

remember the address of L.A. County Recorders office, did not know if the envelope had

postage, did not recall which of his secretaries mailed the envelope and did not personally

know what the envelope contained. (RT 76:1-6.) None of these facts were described on

the Real Estate Check List itself and, therefore, was insufficient evidence of a proper

mailing as a matter of law. (Evidence Code 641.) Most importantly, Darling admitted9

he had no personal knowledge that the L.A. County Recorders Office actually received

the Quitclaim Deed on or before March 29, 2007. (RT 79:19-26.) There is no doubt, of

course, that admission of Exhibit 38 altered the course of the trial and prejudiced

Appellants case. Exhibit 38 was the only evidence that the Quitclaim Deed was mailed

to the Los Angeles County Recorders office on March 27, 2007. Without that document,

the trial court could not have made its finding that the Quitclaim Deed was deemed

recorded prior to Lunas death. Admission of Exhibit 38 was an abuse of discretion.

3. Inadequacy

More importantly, admission of the Real Estate Check List was insufficient

evidence of a deposit with the proper official under Civil Code 1170. Without any


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In 2000, the Court of Appeals for the Fourth Appellate District certified for10

publication the opinion in Patience v. Snyder, 78 Cal.App.4th 1001, 93 Cal.Rptr.2d 265

(Cal.App. Dist.4 03/01/2000) which held that a deed deposited with the proper official

within the meaning of Government Code 27320 is sufficient to accomplish the statutoryobjective of Civil Code 683.2(c). However, that decision was promptly granted a

rehearing on March 9, 2000. A subsequent opinion was filed on July 21, 2000, not for

publication.

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legal authority, the trial court erroneously assumed that mere mailing of the Quitclaim

Deed to the Los Angeles County Recorders office, without evidence of actual receipt

prior to death, is a timely "deposit" with a proper official within the meaning of the

Civil Code 1170. However, there was no evidence whatsoever that the recorders office

actually took possession of the Quitclaim Deed any time prior to the June 21, 2007.

Government Code section 27320 reads, "When any instrument authorized by law

to be recorded is deposited in the recorder's office for record, the recorder shall endorse

upon it in the order in which it is deposited, the year, month, day, hour, and minute of its

reception, and the amount of fees for recording. The recorder shall record it without

delay. Thus, the Government Code prescribes a sequence of two crucial steps for

recordation: deposit of a document ready for recordation, and actual recordation.

Under this definition, the deposit of the Quitclaim Deed herein did not occur until June

21, 2007, the date when the instrument was actually endorsed and fees were actually

paid. For the reasons given above, the trial courts finding that the Quitclaim Deed was10

deposited with the L.A County Recorders office prior to Lunas death was clearly


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erroneous.

V

CONCLUSION

For the foregoing reasons, Appellant respectfully requests that this court reverse

the judgment in favor of Defendants and order the entry of a new and different judgment

in favor of the Plaintiff Theresa Marie Ward.



Glenn Ward Calsada, Esq.

Attorney for Appellant

Theresa Marie Ward


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CERTIFICATE OF COMPLIANCE

Counsel of Record hereby certifies that pursuant to Rule 8.204(c)(1) or 8.360(b)(1)

of the California Rules of Court, the enclosed brief of Appellant Theresa Marie Ward is

produced using 13-point Roman type including footnotes and contains approximately

8970 words, which is less than the total words permitted by the rules of court. Counsel

relies on the word count of the computer program used to prepare this brief.



Glenn Ward Calsada, Esq.

Attorney for Appellant

Theresa Marie Ward

ward appellants opening brief.70150839

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