Opinion
A144573
03-20-2017
MIGUEL E. JARA, SR., Plaintiff, Cross-defendant and Appellant, v. BERTA I. GONZALEZ et al., Defendants, Cross-complainants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. CGC-13-530601)
Appellant Miguel E. Jara, Sr. filed a complaint against his eight siblings. It alleged one cause of action, for quiet title to property, a claim based on adverse possession. Six of the siblings filed an answer, and also a cross-complaint.
Defendants moved for summary judgment on Jara's complaint. Jara did not file any opposition. Rather, he filed a request for dismissal, filed late in the afternoon on the day before the scheduled hearing—and after the court had issued a tentative ruling. The trial court granted summary judgment.
A month later, the matter proceeded to trial on the cross-complaint. On the first day of trial, Jara filed a "motion in limine" seeking to amend his answer to the cross-complaint. Following the hearing, the trial court denied Jara's motion, and went on to hold against Jara on the cross-complaint.
Jara appeals both the grant of summary judgment and the denial of his motion to amend his answer to the cross-complaint. We affirm.
BACKGROUND
On April 12, 2013, Jara filed a "Verified Complaint to Quiet Title, Adverse Possession and Declaratory Relief." The verification was signed by Jara. The complaint sought to quiet title to property at 2889 Mission Street, San Francisco (the property), at which Jara had operated a taqueria for many years. The complaint named Jara's eight siblings as defendants.
At trial Jara testified he did not read the complaint.
The essence of Jara's claim was that in 1972 he wanted to buy the property for $39,000 but could not qualify for the loan; that his parents agreed to buy the property as joint tenants; that Pablo Velasquez made a personal loan of $10,500 for the property, and California Savings and Loan lent $27,300; that Jara repaid both loans and the property taxes; and that his parents meant to convey the property to him, but never did. Jara's father died in 1990, his mother in 2000, and so, Jara contends, he is entitled to the property by adverse possession, "since his parents . . . failed to convey title [to the property] before their deaths."
The prayer of the complaint asked that the court quiet "title in plaintiff's favor as owner in fee simple of the property . . . and that defendants . . . have no right, title, estate, lien, or interest in the property adverse to plaintiff." As Jara's counsel confirmed below, the complaint had one cause of action, for adverse possession: "That's it?," the court asked; Jara's counsel answered, "Correct."
On June 27, six of the eight siblings (when referred to collectively, defendants) filed an answer. The answer essentially denied the complaint on information and belief. But it also denied their lack of right or title to the property.
Also on June 27, defendants filed a cross-complaint. It sought to quiet title to the property, damages for breach of fiduciary duty, and partition.
On July 22, Jara filed his answer to defendants' cross-complaint. It included six affirmative defenses.
In February 2014, the case was set for jury trial on September 15, 2014. In May, on Jara's motion, trial was continued to November 17.
On July 29, 2014, defendants filed a motion for summary judgment on Jara's complaint, set for hearing on October 16. While defendants' motion and accompanying papers are in the record via Jara's augmentation, little more concerning the motion is. According to the representation of defendants—a representation not rebutted by Jara—the trial court had issued a tentative ruling adverse to Jara, after which Jara filed a request for dismissal. The file stamp on the dismissal indicated it was filed at 3:56 p.m. on October 15. Again according to defendants, "Jara's attorney appeared at the hearing arguing that the court had lost jurisdiction to rule on [defendants'] motion when the complaint was dismissed. Relying on Cravens v. State [Bd.] of Equalization (1997) 52 Cal.App.4th 253, the court properly rejected that argument, and issued judgment for [defendants]."
There is no reporter's transcript for that date, and the register of actions reflects there were "mini minutes for Oct-16-2014." The register of actions from October 16 also states that "Defendants['] . . . motion for summary judgment is granted. Moving party shifted the burden and no opposing [sic] was filed."
Neither the briefs nor the record indicates what occurred next, but the register of actions states that on October 24 Jara filed a motion to continue the trial date, that defendants opposed it, and that Jara's motion was denied on November 4. The trial date of November 17 was maintained.
Again, according to the register of actions, on November 7, Jara filed an ex parte application for order shortening time to amend answer to cross-complaint, an application not in the record. It was denied.
On November 17, Jara filed what he styled "Motion in Limine No. 1," for an "Order . . . to amend his answer to the cross-complaint to restate previously disclosed facts showing a resulting trust." As discussed in detail below, on November 18 the court heard extensive argument on Jara's motion, at the conclusion of which the court denied Jara's proposed amendment.
The court proceeded to hear brief testimony, and the matter was concluded on November 19. The court orally indicated it would rule for defendants, and grant partition. On December 19, the court filed its statement of decision, finding for defendants, and ordering partition. The statement of decision also explained in over three pages why it denied Jara's motion to amend, giving three separate bases supporting the denial.
On January 30, 2015, Jara filed a motion for new trial, arguing that the summary judgment was against the law. Defendants filed opposition, and Jara a reply. The motion came on for hearing on March 5, following which the court denied the motion.
On March 11, Jara filed his notice of appeal.
DISCUSSION
The Summary Judgment Was Proper
The essence of Jara's argument as to why the summary judgment was wrong is this: while his complaint stated only a claim for adverse possession, the facts alleged also made out a cause of action for a resulting trust. So, the argument runs, Jara had no obligation to file opposition to the motion, and the court erred in granting judgment since the motion for summary judgment failed to demonstrate that a resulting trust could not be established at trial. More specifically, Jara asserts that "nowhere did [defendants] address Jara's allegations of his beneficial ownership under a resulting trust." Then, after citing some law pertaining to resulting trusts, Jara asserts that his "complaint pleaded the facts creating the presumption of a resulting trust." This is his argument:
"Respondents had the burden to 'identify and respond to all theories of liability reflected in the complaint, "even if not separately pleaded." ' Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 714, quoting Code Civ. Proc. § 437c(o)(2). ' "A defendant moving for summary judgment must disprove all possible causes of action or theories of recovery set out in a plaintiff's complaint before it is entitled to summary judgment." ' Wilson v. Murillo (2008) 163 Cal.App.4th 1124, 1133, quoting Ramsey v. City of Lake Elsinore (1990) 220 Cal.App.3d 1530, 1544 (McDaniel, J., dissenting). The defendant must show that under no hypothesis does a material fact requiring trial exist. Dailey v. City of San Diego (2013) 223 Cal.App.4th 237, 249. If the defendant does not meet this burden, the motion must be denied. Ibid. Only if the defendant meets this burden does the plaintiff have any duty whatsoever to respond to the motion. Teselle [v. McLoughlin (2009)] 173 Cal.App.4th at 170."
None of the cited cases supports Jara. None involved a situation like that here, where a plaintiff pleads one cause of action and claims that a moving defendant had to demonstrate that no other cause of action—one not pleaded, not mentioned, indeed, not even alluded to—had any merit. And the law is otherwise.
In the summary judgment setting, the pleadings serve as the "outer measure of materiality," and a motion may not be granted or denied on an issue not raised by the pleadings. (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1250.) Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486 has an exhaustive discussion of the concept, a discussion that extends for several paragraphs and cites numerous cases, a discussion that begins as follows:
"The pleadings play a key role in a summary judgment motion. ' "The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues . . ." ' and to frame 'the outer measure of materiality in a summary judgment proceeding.' (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381.) As our Supreme Court has explained it: 'The materiality of a disputed fact is measured by the pleadings [citations], which "set the boundaries of the issues to be resolved at summary judgment." [Citations.]' (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250 (Conroy).) Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings. (Id. at pp. 1254-1255; County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 332; Lockhart v. County of Los Angeles (2007) 155 Cal.App.4th 289, 304; see Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 182 ['We do not require [defendant] to negate elements of causes of action plaintiffs never pleaded.'].)" (Hutton v. Fidelity National Title Co., supra, 213 Cal.App.4th at p. 493.)
That law is dispositive here, as it has been in many other cases—indeed, in cases where, unlike Jara here, the party opposing summary judgment actually raised the issue in response to the motion. Three illustrations should suffice:
Leek v. Cooper (2011) 194 Cal.App.4th 399, 412: suit by employees against corporate employer; complaint did not allege that defendant shareholder was liable under alter ego theory; held: plaintiffs could not successfully oppose motion for summary judgment by asserting the existence of triable issue of fact as to alter ego.
City of Hope Nat. Medical Center v. Superior Court (1992) 8 Cal.App.4th 633, 639: suit by insurer to recover payments to hospital made by mistake, i.e., lack of coverage; hospital moved for summary judgment on ground it was bona fide creditor; held: insurer could not oppose motion with proof of fraud by hospital, as no fraud claim was pleaded in complaint.
Robinson v. Hewlett-Packard Corp. (1986) 183 Cal.App.3d 1108, 1131-1132: suit for wrongful discharge claiming breach of implied covenant; defendant moved for summary judgment on basis of "good cause" for termination; held: plaintiff could not oppose with declarations showing claimed "retaliation," as this presented issues outside the pleadings.
Those cases are a fortiori applicable here, where Jara did not even attempt to inject any issue into any opposition to the summary judgment.
Denying Leave to Amend Was Not an Abuse of Discretion
Jara's other argument is that the trial court abused its discretion in not allowing the amendment. In Jara's words, the trial court (the Honorable James MacBride) "refused to allow Jara to amend his answer to the cross-complaint because doing so would effectively overturn Judge Quidachay's ruling granting summary judgment on the complaint. But Judge Quidachay's ruling was erroneous: [defendants] had not met [their] burden of showing that the complaint had no merit. Thus Judge MacBride's ruling rested on an erroneous premise. No other ground supports his ruling prohibiting Jara's amendment."
Jara's argument is brief indeed, barely over two pages. The argument begins with some boilerplate principles dealing with amendments, and then asserts: "Allowing Jara to amend his answer would not have prejudiced [defendants]. See Demetriades v. Yelp, Inc. (2014) 228 Cal.App.4th 294, 307. The proposed answer merely restated the complaint, and the facts it alleged had been present since this action was originally filed." Jara next asserts that he did not "unreasonably delay in seeking amendment. Cf., Duchrow v. Forrest [(2013)] 215 Cal.App.4th [1359,] 1377. On October 15, 2014, Jara requested dismissal of the complaint. The following day, the court granted [defendants'] motion for summary judgment of the complaint. By November 10, Jara sought to amend the answer to state the matters stated in the complaint." And Jara's argument concludes with a one-paragraph argument that the "statute of limitations does not bar [him] from asserting a resulting trust."
We are not persuaded.
To put the issue in perspective, it will be recalled that the attempt to amend was made, however curiously, in Jara's motion in limine No. 1. The motion was filed on November 17, the date set for trial, and apparently Jara's brief in support of the motion was not filed until November 18. The motion in limine was accompanied by a one-page declaration of Jara's counsel, who gave the following support for his motion:
"2. I am bringing this Motion In Limine seeking to file the Amended Answer to Cross-Complainants Cross-Complaint which adds a seventh affirmative defense. A copy of the Amended Answer is attached as Exhibit 'A.' [¶] . . . [¶]
No proposed amended answer is attached in the record.
"4. When I received Cross-Complainants' Motion for Summary Judgment of the Complaint, I sought the assistance of [a] research attorney to assist me with its defense. I was told that we had no evidence that would show that Jara had adversely possessed the property against Cross-Complainants. As a result, I did not file a response to the motion.
"5. On October 23, 2014, I consulted another research attorney regarding the effect of the dismissal of the complaint without prejudice. He told me that the facts already alleged had made out a claim based on a resulting trust, a doctrine that I had not thought of before and because the same facts that have been previously disclosed are the basis I do not believe Cross-Complainants will suffer any prejudice by allowing Cross-Defendant Jara to file an Amended Answer attached as Exhibit 'A.' "
The trial court heard extensive argument on the issue, included within which was colloquy about whether a resulting trust could even be an affirmative defense. So, for example, Jara's counsel admitted that resulting trust was "closer to a cause of action." In the court's view, resulting trust was a "remedy." The argument went on for several pages, included within which was colloquy such as this:
"MR. HASSING [counsel for defendants]: And your Honor, as the court has indicated, the remedy that the court issues has to be pled by the pleadings.
"And in their complaint, they made allegations—a verified complaint, under penalty of perjury—they made allegations that negate a resulting trust.
"Their allegations were that mom and dad bought the property, and then later on, mom and dad intended that plaintiff have the property.
"THE COURT: There's a simple way to fix that, which is to put them on title after they get the loan.
"MR. HASSING: Exactly. Or at any time before they die.
"And, in fact, . . . counsel here have kept saying: But, your Honor, our answer to the cross-complaint does lay out affirmatively that we have a resulting trust.
"But your Honor, the only paragraph in the answer to the cross-complaint that refers to all of the ownership of the property is Paragraph 16 where they say Cross-Defendant contends he was and is the owner of the property.
"There's nothing in there that puts me on notice that they are going to come in here three days before trial that says we want to assert a resulting trust, which upsets my whole apple court [sic]. Nothing at all. No notice whatsoever.
"And they talk about the fact that I took his deposition. And in his deposition, they say that I investigated all of these facts that could lead the court to find a resulting trust.
"And that's not true. All I did was ask him a few questions about any conversations he had with his parents at the time the property was purchased. And in not one of those answers does he ever say, they said that they would buy the property and hold it for me. It doesn't say that.
"THE COURT: He says you do a document demand.
"MR. HASSING: I did a document demand.
"THE COURT: Did you demand any documents that would indicate that the parents intended that he have the property because they were holding it for him in some way or another.
"MR. HASSING: I did. Not exactly in those words, but I asked for all documents between he and his parents that in any way related to or affected the property. I got none.
"THE COURT: There are none.
"MR. HASSING: There are none."
Two pages later there was this:
"THE COURT: We need to shift gears for a second. We need to get to the specifics of this case. You had a chance to bring this head up, straightforward by way of your original complaint.
"MR. ESCHEN [counsel for Jara]: That's correct.
"THE COURT: And you did not do it. You did not do it.
"MR. ESCHEN: The complaint stated all of the facts necessary showing resulting trust. But it came to the wrong conclusion. [¶] . . . [¶]
"THE COURT: Right. So if I tell my kid: Look, rather than me take the money and pay the bank on the loan, why don't you just pay the mortgage as your rent. But it's my house.
"Now, the child, if there's no other agreement has a countervailing presumption of ownership.
"MR. ESCHEN: If, in fact, the parent bought the property with the expectation that the child would pay all of the—would make all the payments, not just while the person was living there and use it as rent, but which presumes that that obligation would end as soon as the child left the premises.
"But if one person takes—pays for the property, then the law will infer from that at the beginning—and there's an agreement that when the property is bought that one person will pay for it—then there is a—the law creates an inference that was their intention that that person had to be the beneficial on the property.
"THE COURT: And what's the authority for that?
"MR. ESCHEN: Martin v. Kehl [(1983)]—145 Cal.App.3d 228.
"Estate of Yool—151 Cal.App.4th 867.
"Viner v. Untrecht [(1945)] 26 Cal.2d 261.
"THE COURT: Okay.
"MR. HASSING: Your Honor, not one of those cases he cited is correct in answering the court's question. And here's why:
"The most important thing, the most important factor—and he's citing whether there's a resulting trust—is intent of the person who is on title. The intent of that person.
"We have got a man who has been dead for 24 years, a lady that has been dead for 14 years, and we are supposed to determine their intent here in this courtroom
"THE COURT: Well, if they pled it properly, we'd be doing it.
"MR. HASSING: But they didn't plead it properly. And had they pled it properly, there's another hurdle that they would have to overcome, and that is that that intent has to be established by clear and convincing evidence."
Following more argument, the trial court denied the motion to amend, giving three independent bases for doing so. And as indicated above, the court's later-filed statement of decision addressed at length the court's denial of Jara's amendment. Again, the court gave three bases for the denial, including this one:
"Second, the motion seeks to insert an entirely new affirmative defense three short court days prior to trial to Cross-Complainants' complete surprise which, if granted, would cause unfair prejudice. Amendments to pleadings are governed by CCP § 473(a)(1), rest in the sound discretion of the court and are liberally allowed except where they prejudice opposing party. Courts are critical of proposed amendments to answers when, as here, [they] are offered after long unexplained delay, on the eve of trial, where there is a lack of diligence, or there is prejudice to the other party. Royal Thrift & Loan Co. v. County Escrow, Inc. (2004) 123 Cal.App.4th 24, 41-42. (citing Permalab-Metalab Equipment Corp. v. Maryland Cas. Co. (1972) 25 Cal.App.3d 465, 472.[)]
"Plaintiff filed this action 19 months ago. His answer to the Cross-Complaint was filed 16 months ago. All facts which Jara now wishes to assert as a new affirmative defense were admittedly well known to him at the time his answer was filed. No good reason has been offered to explain why, with all facts known to Plaintiff and his attorney, that there has been no attempt to amend to plead a resulting trust until the eve of trial. October 24, 2014, the day after Plaintiff learned of the availability of resulting trust, he filed and presented an Ex Parte Application for an order continuing the trial. Neither his papers nor his declaration disclosed that he had learned of this new affirmative defense or his plan to seek leave to amend.
"Jara's complaint asserted adverse possession as the only cause of action. Adverse possession was dependent on his dealings with the property and his siblings after the death of their mother. Discovery focused on that single cause of action. A resulting trust, however, is dependent upon the intent of Jara's parents, one having died 24 years ago and the other having died 14 years ago. Cross-Complainants have had no reason to attempt to identify or locate witnesses who might provide evidence of the parents' intent. It is unfair to insert this new and different defense at this late date with Cross-Complainants having had no opportunity to consider or focus upon it. In addition, no copy of the proposed amended answer or the deposition excerpts used to support the motion were attached to Mr. Estavillo's declaration or otherwise provided to opposing counsel."
Jara has demonstrated no error.
In the ordinary situation where a party has been denied leave to amend a pleading, two venerable principles are in play. The first is that "leave to amend is liberally allowed as a matter of fairness, unless the [pleading] shows on its face that it is incapable of amendment." (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747.) The reason, so "that cases will be tried on their merits rather than disposed of on technicalities of pleadings." (Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 833; see Code Civ. Proc., § 452.) The second is that considerable deference is given to trial courts in deciding whether to allow an amended pleading to be filed. (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296.)
It is a particular application of this second principle that is dispositive here.
As indicated, considerable attention was devoted below to establishing whether a resulting trust is simply a remedy, or can be a basis for an independent cause of action, or can be asserted as an affirmative defense. We need not enter this theoretical thicket and emerge with a definitive answer. What we do see as decisive is the matter of the timing of the request to amend—and the prejudice that would result.
As shown above, the request was made on the first day of trial. Not only was it vigorously opposed, not only was no explanation given by Jara for the considerable delay in making the request, Jara made no claim that the request was based on newly discovered information that was previously unknown to him. In comparable situations, denying leave to amend to inject new matter into an about-to-be-tried case was upheld on appeal. The following cases are illustrative, all affirming denial of leave to amend:
Marvin v. Marvin (1976) 18 Cal.3d 660, 667, fn. 2: amendment offered on day of trial; granting would have required long continuance, and inconvenience and expense to defendant.
Moss Estate Co. v. Adler (1953) 41 Cal.2d 581, 586-587: on the eve of the trial defendant sought to file an amended answer alleging a new defense based on different facts more than year after the original answer was filed.
Record v. Reason (1999) 73 Cal.App.4th 472, 486-487: plaintiff was aware of facts supporting new claim almost three years before seeking leave to amend complaint to allege a new cause of action.
Bank of America etc. Assn. v. Goldstein (1938) 25 Cal.App.2d 37, 47: defendant asked to amend answer on morning of trial, over one year after complaint and over six and a half months after answer.
Permalab-Metalab Equipment Corp. v. Maryland Cas. Co., supra, 25 Cal.App.3d at pp.471-472: leave to amend answer requested on eve of trial after nearly a three-year delay.
Superimposed on the timing issue is the evidence—more accurately here, lack of evidence—that would become relevant if resulting trust were to enter the picture. As the Supreme Court recognized in Berniker v. Berniker (1947) 30 Cal.2d 439, 447: " 'A resulting trust is not founded on the simple fact that money or property of one has been used by another to purchase property. It is founded on a relationship between the two, on the fact that as between them, consciously and intentionally, one has advanced the consideration wherewith to make a purchase in the name of the other. The trust arises because it is the natural presumption in such a case that it was their intention that the ostensible purchaser should acquire and hold the property for the one with those means it was acquired.' "
And as Berniker illustrated, such determination includes evidence of the intention of the claimed "trustee," manifest by the court's extensive quotation of testimony from the so-called resulting trustee, who on "several occasions acknowledged that the Santa Monica business belonged to his son, Barnett Berniker. For example, respondent stated that she heard appellant at one time say to her husband, Barnett Berniker: . . . . 'Why don't you take the business from my name? I don't want the business in my name. It will cause me headaches and trouble all the time.' Respondent's father testified that on one occasion appellant told him: 'The business does not belong to me and I wish he [Barnett Berniker] would put everything in his name and I would not have any headache.' Referring to another conversation with appellant, the same witness testified that appellant said: 'I wish he [Barnett Berniker] would take off from my head these headaches. This business is his. It does not belong to me.' " (Berniker v. Berniker, supra, 30 Cal.2d at p. 443.)
The same is true of two of the three cases cited by Jara to the trial court below, and relied on by him here: Martin v. Kehl, supra, 145 Cal.App.3d 228 (Martin) and Viner v. Untrecht, supra, 26 Cal.2d 261 (Viner). In Martin, the defendant against whom the resulting trust was claimed was "given ample opportunity to present her version of the transaction, and the issue of whether plaintiff intended her to have the beneficial interest in the property was decided adversely to her." (Martin, supra, 145 Cal.App.3d at p. 239.) Similarly in Viner, where the issue was whether the defendant owned the property for herself or in a resulting trust for the benefit of a plaintiff. The trial court held for plaintiffs, and the Supreme Court affirmed, in the course of which it noted as follows: "Whether the evidence to prove the existence of the trust is clear, satisfactory and convincing 'is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal.' [Citations.] Likewise, in such cases the credibility and weight of the evidence are exclusively for the trial court. [Citations.]" (Viner, supra, 26 Cal.2d at p. 267.)
The third case cited below, Estate of Yool, supra, 151 Cal.App.4th 867, arose in a pleading context, and the issue there was whether a resulting trust claim that was pled was untimely under the statute of limitations. --------
As the trial court properly noted, had defendants been on notice that resulting trust was in issue, they could have undertaken discovery to address that intent. To proceed without it would necessarily be prejudicial.
DISPOSITION
The orders appealed from are affirmed. Defendants shall recover their costs on appeal.
/s/_________
Richman, Acting P.J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.