B211764
LASC No. BC377611
COURT OF APPEAL
STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
vs.
APPEAL FROM
SUPERIOR COURT OF LOS ANGELES COUNTY
HONORABLE TERESA SANCHEZ-GORDON, JUDGE
__________________________________________
Counsel of Record hereby certifies that interested entities or parties are listed
below:
Glenn Ward
Digitally signed by Glenn Ward Calsada
DN: cn=Glenn Ward Calsada, o=Law
Offices of Glenn Ward Calsada, ou,
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF APPEALABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
LEGAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
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TABLE OF AUTHORITIES
STATE CASES
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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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Civil 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,
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 decedent’s death and actually recorded almost three (3) months after her death
these undisputed facts, Appellant is entitled to judgment as a matter of law. (See, Dorn v.
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II
STATEMENT OF APPEALABILITY
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 Court’s 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.
III
Cal.Rptr.2d 311.)
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2. Whether the trial judge erroneously concluded that “Hortence Luna severed the
joint tenancy in the real property located at 12643 Maryvine Street, El Monte,
California 91732 when she transferred her entire interest in said real property to
the Trustee of the Family Trust of Hortence Luna dated March 21, 2007.” (AA
215.)
3. Whether the trial judge abused her discretion when admitting into evidence the
“Real Estate Check List” (Exhibit 38) over Appellant’s objection? (AA 205, 349.)
4. Whether the trial judge erroneously concluded that “[t]he 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 Recorder’s 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 subdivisions (a) and
IV
This dispute concerns a parcel of real property situated in the City of El Monte,
91732 (hereinafter the “Maryvine Property”). The Property is legally described as:
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“Lot 52 of Tract 26385, as per map recorded in Book 681,
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
Recorder’s 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,
Following the death of Luna, Appellant executed that certain sworn “Affidavit -
Death of Joint Tenant” attesting to Luna’s death on March 29, 2007. Appellant recorded
said document and the attached Certificate of Death in the Official Records of Recorder’s
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 recorder’s office for recording. (RT 87.)
Two months later, that certain Quitclaim Deed conveying Luna’s 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 Recorder’s
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
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 &
the Family Trust of Hortense Luna. (AA 264 & 311.) Ms. Munoz is Luna’s grand-
daughter and Appellant’s niece. (AA 264.) Ms. Munoz’s current husband Robert Munoz
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
(“RT”) 131-135.) Luna never actually met the attorney. (RT 69.) A mobile notary public,
Josie Chua, arrived at Luna’s house and witnessed her signature on the trust instrument
and Quitclaim Deed. (AA 197; Stipulated Facts Nos. 4 & 6.) Ms. Munoz’s 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
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
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
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
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: “Plaintiff’s 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
Exhibit List.
On June 20, 2008, the court ordered Respondents to file and serve a trial brief by
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 Recorder’s office on
June 21, 2007 and deposited with the Los Angeles County Recorder’s 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 Decedent’s interest in
Maryvine Property to the Trust. Most importantly, Anita deposited the Quitclaim deed
with the Los Angeles Recorder’s office prior to April 13, 2007.” (AA 176.) Nowhere in
the brief did Respondents mention that the deed was mailed to the Los Angeles
Recorder’s office by the Darling Law Office. During trial, Ms. Munoz denied taking
the Quitclaim Deed to the recorder’s 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
with the Los Angeles County Recorder’s Office as set forth in Civil Code
section 1170;
public within the time set forth in Civil Code section 683.2(c)(2);
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
4. Whether the decedent’s trust and quitclaim deed dated March 21,
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. Munoz’s Trial Brief (AA 191-195). This
supplemental brief was accepted and considered by the trial judge over Defendant’s
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].
COUNTY RECORDER FOR LOS ANGELES.” (RT 63.) He further testified “IT
OR PRIORITY MAIL. ...” (RT 65.) “IT USUALLY ONLY TAKES A DAY OR TWO
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BUT GETTING THEM BACK SOMETIMES AFTER IT’S RECORDED IS A LONG
TIME.” (RT 66.) Luna died on Thursday, March 29, 2007 at 6:10 a.m.. (AA 250.)
Mr. Darling’s only record that the Quitclaim Deed was mailed to County
Recorder’s office on March 27, 2007, was a document entitled “Real Estate Check List.”
This document was not listed on the Defendant’s Exhibit List. Appellant’s counsel
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THE COURT: I WILL ALLOW THAT. AND THIS WOULD BE?
(RT 64:1-16.)
Q. THANK YOU. AND WHEN YOU SENT THE DEED, THE QUIT
CLAIM DEED TO THE L.A. COUNTY RECORDER’S 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.
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(RT 65) THINGS SIGNED AND SENT TO THE RECORDER’S OFFICE.
JUST A NORMAL TYPE RECORDING WHERE WE SEND IT OFF WITH
ALL THE INFORMATION, ALL THE FEES, AND ALL THE
SIGNATURES AND EVERYTHING.
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THE COURT: OKAY. ...(RT 67:1-2.)
By Mr. Calsada:
A. YES.
Q. WHAT ADDRESS?
Q. PROBABLY.
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WHICH ONE.
Q. THAT’S CORRECT.
[...]
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MR. CALSADA: I DO OBJECT TO THE DEFENDANT’S REAL
ESTATE CHECKLIST THAT WAS PRESENTED. IT WAS NOT A
DOCUMENT THAT WAS IDENTIFIED IN THEIR EXHIBIT LIST. THIS
IS A DOCUMENT THAT’S PRESENTED TODAY. I’VE 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 IT’S NOT PRODUCED FOR IMPEACHMENT
PURPOSES.
[...]
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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 RECORDER’S
OFFICE.
[...]
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THE COURT: BUT IT ALSO HAS “COUNTER” SO MY QUESTION
IS DID SHE GO THE COUNTER AND RECORD IT?
[...]
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[...]
By Minute Order dated July 2, 2008, the trial judge also ruled:
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“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
Decedent’s 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
The court finds as to the issue of severance, the Decedent severed the
joint tenancy when she transferred her entire ½ 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
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-
“3. Hortence Luna severed the joint tenancy in the real property
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transferred her entire interest in said real property to the Trustee of the
March 21, 2007 wherein she conveyed her entire interest in the real
the Los Angeles County Recorder’s office by the Law Offices of Scott
satisfies the requirements of Civil Code section 683.2 subdivions (a) and
On October 24, 2008, Appellant timely filed a Notice of Appeal of Judgment after
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.)
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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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
101 Cal.App.4th 1083, 1095; Harustak v. Wilkins (2000) 84 Cal.App.4th 208, 212), the
46 Cal.Rptr.2d 62.)
An appellate court reviews the trial court’s ruling on the admissibility of evidence
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
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VI
LEGAL ARGUMENT
"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
(1992) 11 Cal. App. 4th 1313, 1317 [15 Cal. Rptr. 2d 38].) The severance of a joint
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
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,
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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
Here, the “Affidavit - Death of Joint Tenant” was recorded two (2) weeks after
Luna’s 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, Appellant’s right of survivorship was never
terminated by the Quitclaim Deed or trust instrument. Upon the Luna’s death, Appellant
became 100% owner of the Maryvine Property. (See, Dorn v. Solomon, 57 Cal.App.4th
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
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later, the wife’s 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 §2581.1 Finding
that Family Code §2581 does not apply when a joint tenant dies, the Court of Appeals (4 th
“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
emphasis added.)
Given the Dorn case and the stipulated facts (AA 196-198) herein, the Quitclaim
Deed is invalid, constitutes a cloud on Appellant’s title and must be canceled and stricken
from the official records of the Recorder’s Office of the County of Los Angeles.
1
Family Code §2581 provides, in part: “For the purpose of division of property on
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.”
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B. CIVIL CODE SECTION 1170 IS NOT A DEFENSE TO RESPONDENTS’
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 recorder’s office,
with the proper officer, for record.” This provision was originally enacted in 1872.
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 in Dougery 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.2 Therefore, the Supreme Court decided, mere deposit is not sufficient to give
2
A recorded document does not impart constructive notice from the moment of
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 a
manner 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
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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
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
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 in Estate of England (1991)
purchasers or encumbrancers are not charged with knowledge of its existence. Proper
indexing 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.)
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233 Cal.App. 3d 1, 6-7,3 as follows:
the 1985 amendment states that, ‘[s]ince a severance may be made secretly,
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
[para.] . . . This new requirement [i.e., subdivision (c)] will prevent the
severing joint tenant from suppressing the severing instrument if the other
of Joint Tenancy (Jan. 1985) 18 Cal. Law Revision Com. Rep. (1985) pp.
3
Estate of England (1991) 233 Cal.App.3d 1, 284 Cal.Rptr. 361, held that an
unrecorded will cannot sever a joint tenancy given the requirements of CC §683.2(c).
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Fordham L.Rev. 173; Crawford, Destructibility of Joint Tenancies in Real
[...]
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
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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C. CIVIL CODE SECTION 683.2 SUBDIVISION (a)’s “OTHER MEANS”
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.4 With regards to the interplay between Section 683.2(a)’s “other
means” language and Section 683.2(c)’s recording requirements, the court in Estate of
England held:
severing a joint tenancy be recorded in order to give the other joint tenants
subdivision (a)'s inclusion of ‘other means’ to sever a joint tenancy may not
4
§683.2(a) provides: “Subject to the limitations and requirements of this section, in
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 and
delivery 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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subdivision (c)." See, Estate of England 233 Cal.App. 3d at 6-7.
instrument which, if notarized and recorded, can sever a joint tenancy. (See, Estate of
England 233 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.5 Here, the trial court made a clear error in law in finding that the joint tenancy
was severed when Luna transferred her interest in the Maryvine Property to an
5
Civil Code §683.2(d) provides very limited exceptions to the recording
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.
6
Appellant does not dispute that a written declaration of trust by the owner of real
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.”)
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D. THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING INTO
EVIDENCE THE REAL ESTATE CHECK LIST (EXHIBIT 38) [AA 349-350].
The trial court erred when it admitted the Real Estate Check List over the objection
of Appellant’s counsel. (AA 205.) This court reviews the trial court's rulings regarding
the admissibility of evidence under the deferential abuse of discretion standard. (City of
Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900.) “[T]he appropriate test of abuse of
discretion is whether or not the trial court exceeded the bounds of reason, all of the
590, 598.) Appellate courts will disturb discretionary trial court rulings only upon a
showing of a clear case of abuse and a miscarriage of justice. (Blank v. Kirwan (1985) 39
The trial court abused its discretion when admitting the Real Estate Check List
Los Angeles Superior Court Rule 7.9(h) states, in relevant part: “At least 5 days
prior to this conference, counsel must have exchanged and filed lists of pre-marked
exhibits (See Rules 8.61-8.63) to be used at trial, jury instruction requests, trial witness
lists, and a proposed short statement of the case to be read to the jury panel explaining the
case.” Rather than comply with this rule, Respondents ambushed the Appellant by
introducing this critical exhibit in their case-in-chief after trial commenced. To make
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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
Recorder’s 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
Exhibit 38 was admitted for its truth as a business record to establish proof of
mailing of the Quitclaim Deed on March 27, 2007.8 However, the analytical flaw in the
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
7
“Surprise” denotes “‘some condition or situation in which a party to a cause is
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.)
8
Evidence Code §1271 states: “Evidence of a writing made as a record of an act,
condition, or event is not made inadmissible by the hearsay rule when offered to prove the
act, 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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Cal.App.4th 1190, 1203-1207 [911 dispatch log].) Mr. Darling admitted that he did not
remember the address of L.A. County Recorder’s 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.9 (Evidence Code §641.) Most importantly, Darling admitted
he had no personal knowledge that the L.A. County Recorder’s 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
Appellant’s case. Exhibit 38 was the only evidence that the Quitclaim Deed was mailed
to the Los Angeles County Recorder’s office on March 27, 2007. Without that document,
the trial court could not have made its finding that the Quitclaim Deed was “deemed
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
9
Evidence Code §641 provides that "[a] letter correctly addressed and properly
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.)
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legal authority, the trial court erroneously assumed that mere mailing of the Quitclaim
Deed to the Los Angeles County Recorder’s 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 recorder’s 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
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.10 For the reasons given above, the trial court’s finding that the Quitclaim Deed was
“deposited” with the L.A County Recorder’s office prior to Luna’s death was clearly
10
In 2000, the Court of Appeals for the Fourth Appellate District certified for
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 statutory
objective 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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erroneous.
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
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CERTIFICATE OF COMPLIANCE
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.
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