Charlton Weeks, Bradley T. Weeks and Erik Gunderson for Plaintiff and Appellant. No appearance for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. MP004814)
APPEAL of an order of the Superior Court of Los Angeles County. Randolph A. Rogers, Judge. Reversed and remanded.
Charlton Weeks, Bradley T. Weeks and Erik Gunderson for Plaintiff and Appellant.
No appearance for Respondent.
After the untimely accidental death of Donald Crayon, his wife, Tanya Crayon, and his daughter, Yvette Crayon, filed petitions in the probate court to determine whether a house owned by the decedent was community property. After the case was tried to the court and submitted, the court took judicial notice of three documents without statutory notice to the parties, and denied Tanya's request to determine that the house was community property. Because the court improperly considered evidence outside the record, we reverse and remand for retrial.
Donald Crayon died in a motorcycle accident on October 20, 2007. His wife, Tanya Crayon, filed a Petition to Determine Title to Real Property pursuant to Probate Code section 850 on November 9, 2009. The matter was tried on October 22, 2010.
Because the decedent, appellant and respondent all share the same surname, we will use their first names for clarity.
Yvette apparently filed her own Petition to Determine Title to Real Property, which was also tried on October 22, 2010, but no copy of that Petition was included in the record.
At trial, Tanya claimed that the property, which had been Donald's separate property at the time of their marriage, had become community property in 2000. In 2006, however, to obtain a loan to purchase a vehicle for Donald, Tanya executed an Interspousal Transfer Deed. She testified that she understood, despite language on the document, that the property would continue to be held as community property, and that she and Donald continued to treat the property as such until the date of his death.
Tanya called two additional witnesses, who testified that Donald and Tanya treated the real property in the same manner before and after the transfer: Jaquelyn Daniels and Brenda Coleman. Ms. Coleman also testified that, several years prior to his death, Donald had told her that he wished the house to go to Tanya and their son, not his children from a prior marriage, on his death.
Yvette, Donald's daughter from a prior marriage, opposed the petition. Representing herself at the trial, she called only one witness, her daughter Yvette Robinson. Robinson testified that, prior to his death, Donald lived in his own house, and had a girlfriend, although he still spoke to Tanya. Following that testimony, Yvette rested; the court inquired as to Yvette's intent to tender her exhibits. When Tanya's counsel objected that only one (a lease) had been the subject of any testimony, the court responded: "Well, Mr. Weeks, I know you know I'm going to take judicial notice of the official records of L.A. County." The objected-to exhibits included a deed recorded in Los Angeles, the lease, and the petition in probate contained in the court's files. The court indicated it was taking the matter under submission, and Tanya's counsel requested the opportunity to present argument on a legal issue. Following the argument, the court repeated that it was taking the matter under submission, and would review the probate file and "the official records."
On October 27, 2010, the court issued a proposed judgment and statement of decision, giving the parties until November 12, 2010 to object or make requests for supplemental findings. The proposed statement of decision relied in part on allegations made by Yvette in filings with the court concerning the relationship between Tanya and Donald prior to his death, allegations which had not been the subject of evidence at trial. The court also relied on two documents, which had neither been tendered to the court nor been the subject of any testimony at trial; these documents were Westlaw reports purportedly summarizing Kern County records. The court indicated that the content of those documents, along with the inferences it drew from them, impeached Tanya's testimony at trial and led to its determination that the petition should be denied. The court then indicated that it was not only denying the request to determine the property to be community property, but also would order Tanya estopped from claiming any right of inheritance, an issue never raised at trial. The court attached to its proposed order printouts of the two Westlaw reports, and gave Tanya the opportunity to submit evidence concerning her marital history, as well as evidence concerning the disposition of the proceeds of the 2006 refinancing.
In the Proposed Statement of Decision the court stated, in part:
Inasmuch as in the course of both the purchase and the refinance of the Applewood Drive residence Petitioner, Tanya Crayon, took title as "a single woman[,"] and her cotenant took title as "an unmarried man[,"] it may be inferred that the distinction between the forms of title was known or explained to Petitioner. Thus, the fact that Petitioner, Tanya Crayon, chose to take title as "a single woman" as opposed to "an unmarried woman" constitutes a representation by Ms. Crayon that she was never legally married to anyone, including to Decedent. Of course, the mere fact that Petitioner, Tanya Crayon, and Decedent, may have gone through a marriage ceremony does not mean that a marriage license was ever obtained or recorded.
These circumstances also severely impeach the sworn testimony given by Petitioner, Tanya Crayon, that she needed to be removed from title of the Decedent's residence due to her poor credit history to allow him to accomplish the refinance. Again, the evidence showed that notwithstanding her ostensibly poor credit history, Petitioner had purchased the Applewood Drive property with Mr. Cleophus shortly before her execution of the Interspousal Transfer Deed, and then refinanced it shortly after. This evidence raises the inference that Petitioner, Tanya Crayon, in fact wanted to be conveyed off of Mr. Crayon's property to enhance her own ability to refinance the Applewood Drive property.
Even if Petitioner, Tanya Crayon, were legally married to the Decedent, the evidence shows that by the time Petitioner, Tanya Crayon, executed the Interspousal Transfer Deed, she had parted ways with the Decedent; was already living with another man; and was holding herself out as a single woman. Based upon the evidence, it is irrefutable that Petitioner, Tanya Crayon, in fact executed the Interspousal Transfer Deed knowingly and voluntarily in furtherance of this separation.
On November 9, 2010, Tanya filed an ex parte motion for mistrial, and an Objection and Assignment of Misconduct objecting to the court's consideration of materials outside the evidence offered at trial by the parties. On November 12, 2010, Tanya filed an objection to the proposed statement of decision, along with additional evidence pertaining to the evidence adduced by the trial court. The only hearing on the matter took place on November 9, 2010, at which time the court indicated that Tanya had failed to object during trial to the court taking judicial notice of official records; the court heard no argument. The court denied the motion.
On December 27, 2010, the court issued the Order After Hearing and Statement of Decision, denying Tanya's petition and granting Yvette's. The court again relied on material contained in filings made by Yvette, but not testified to at trial. The court also referred to the issue of judicial notice, noting that Tanya's counsel had objected at trial to admission of recorded real estate records, and that the court had responded at that time that it would take notice of the official records of Los Angeles County. The court again cited to, and relied on, the Westlaw reports summarizing Kern County records, to determine that Tanya was not credible. The court's conclusions were bolstered by its reliance on an additional document from Kern County, referenced for the first time in the Statement of Decision, but not attached, of which the court also took judicial notice.Tanya timely appealed.
In the Statement of Decision the court stated, in part:
Thus, the evidence shows that by the time Petitioner, Tanya Crayon, executed the Interspousal Transfer Deed, she had parted ways with the Decedent and was living and holding herself out as a single woman. Indeed, Petitioner, Tanya Crayon, even initiated an action through the Kern County Department of Child Support Services to recover child support from the Decedent.
The weight of the evidence demonstrates that Petitioner, Tanya Crayon, in fact executed the Interspousal Transfer Deed knowingly and voluntarily in furtherance of this separation. There was unquestionably no "undueinfluence"; again, according to Petitioner, the entire transaction was her own idea.
Tanya asserts that the court improperly considered evidence outside the record of trial, and, in doing so, made an error of law. We agree, and reverse and remand for retrial.
A. Absent Proper Judicial Notice, The Trial Court Could Not Consider Evidence Outside the Record
A trial judge, in a non-jury proceeding, cannot receive evidence outside the record: "By undertaking a collateral investigation, the judge abdicates his or her responsibility for deciding the parties' dispute on the pleadings and evidence properly brought before the court." (Guadalupe A. v. Superior Court (1991) 234 Cal.App.3d 100, 109, citing Wenger v. Commission on Judicial Performance (1981) 29 Cal.3d 615, 632 [disapproved on other grounds] in Doan v. Commission on Judicial Performance (1995) 11 Cal.4th 294.)
This is a matter of due process. (Conservatorship of Schaeffer (2002) 98 Cal.App.4th 159, 164.) In Noble v. Kertz & Sons Feed & Fuel Co. (1945) 72 Cal.App.2d 153 (Noble), the trial judge conducted a personal inspection of the scene of an accident, and based findings on his conclusions from those observations. This violated the rights of the parties: "To hold otherwise would permit the trial judge to base his findings on what he observed without giving the parties the opportunity to explain or to supplement such observations, or to cross-examine the witness." (Id. at p. 160.)
This prohibition against investigation by the trier of fact does not extend to matters of which the court can properly take judicial notice. (Noble, supra, at p. 160.) Here, the trial judge characterized the new evidence as subject to judicial notice; he did not conduct a visit to the scene, or contact a witness outside the courtroom, or conduct other traditional forms of investigation. However, the authority of the trial court to take judicial notice of matters not tendered by the parties is constrained by Evidence Code section 455. Thus, while two of the documents in question were viewed by the court as recorded deeds, and while a court may take judicial notice of recorded deeds pursuant to Evidence Code section 452 (Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 549), the court must follow the process prescribed by the Evidence Code. The court failed to do so here.
Because there is no record of the third document of which the court took judicial notice, we will assume for purposes of addressing the issue that it was part of the official records of the child support agency of Kern County and that, if proper procedures had been followed, it would properly have been the subject of judicial notice.
B. The Court Did Not Comply With Evidence Code 455
Evidence Code sect. 455 provides:
With respect to any matter specified in Section 452 or in subdivision (f) of Section 451 that is of substantial consequence to the determination of the action:
(a) If the trial court has been requested to take or has taken or proposes to take judicial notice of such matter, the court shall afford each party reasonable opportunity, before the jury is instructed or before the cause is submitted for decision by the court, to present to the court information relevant to (1) the propriety of taking judicial notice of the matter and (2) the tenor of the matter to be noticed.
(b) If the trial court resorts to any source of information not received in open court, including the advice of persons learned in the subject matter, such information and its source shall be made a part of the record in the action and the court shall afford each party reasonable opportunity to meet such information before judicial notice of the matter may be taken.
These provisions provide a reasonable opportunity for the parties to be heard with respect to the propriety of judicial notice of the evidence, and to meet that evidence. It applies to cases where, as here, the subject of the notice is "of substantial consequence to the determination of the action." The application of this statute is a question of law, and thus subject to our de novo review. (Akins v. Enterprise Rent-a-Car Co. (2000) 79 Cal.App.4th 1127, 1132-1133.)
In this case, there are several issues with respect to compliance with the strictures of the statute. First, at least two of the documents are not properly the subject of judicial notice. What the trial court described as the Kern County property records are not recorded documents, but purported summaries of those documents prepared and published by a commercial provider. These are not official records, but are instead hearsay documents of which the court may not take judicial notice. As we have no record of the third document, we cannot determine whether it is similarly a hearsay document.
Even if, however, the documents had properly been the subject of judicial notice, the court did not give notice to the parties prior to submission of the matter. As set forth above, the court submitted the matter at the close of the trial on October 22, 2010. Although the court made a passing reference to the records of Los Angeles County, which we discuss below, it did not identify any such documents or give the parties an opportunity to respond until it issued the proposed statement of decision, identifying two of the three documents in question. Thus the parties were not given the required opportunity, prior to submission of the matter, to present relevant information to the court. (See Estate of Russell (1971) 17 Cal.App.3d 758, 765 [trial court took notice of documents in court records on own motion without affording "the party adversely affected, an opportunity to present information as to the propriety of taking judicial notice either before the cause was submitted for decision or upon a reopening of the case for such purpose"]; accord, Estate of Nicholas (1986) 177 Cal.App.3d 1071, 1090.)
Through the proposed statement of decision, the court did provide some opportunity to respond to the Kern County property records; that opportunity, however, was minimal at best. The court heard no argument on Tanya's motion for mistrial, nor did it conduct any hearing after she submitted the supplemental evidence prior to ruling. Given the reliance the court placed on these documents to draw inferences concerning Tanya's marital status, motivation and credibility, an opportunity beyond that afforded by the court was required to comply with the statute.
Finally, even this minimal opportunity was not afforded to Tanya with respect to the document concerning the action of the child support agency in Kern County. This document was added after the proposed statement of decision, without any prior notice or opportunity to respond. It was not made a part of the record; as a result, neither the parties nor this court have any idea what the document contains, or whether it is properly the subject of judicial notice at all. Nonetheless, the court clearly relied on it in ruling against Tanya and denying relief to her. This was error.
C. Tanya Did Not Waive Her Right to Challenge the Judicial Notice
The trial court appeared to believe that Tanya had consented to, or waived her right to object to its taking judicial notice of the documents at issue. There was neither consent nor waiver here.
At most, the court indicated that it would take judicial notice of the records of Los Angeles County, while the records of which it did take judicial notice were from Kern County. Real property records in Los Angeles, but not Kern, had been the subject of trial testimony. As a result, if Tanya understood the court's statement to indicate it would consider any evidence other than the exhibits at trial, it could only have been with respect to Los Angeles records. Her silence cannot be deemed to have been consent to something never stated.
Nor can there be, in such circumstances, a finding of waiver. Waiver is the intentional relinquishment of a known right, with doubtful cases resolved against a finding of waiver. (See Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 31.) The circumstances here do not provide the clear evidence required to make such a finding.
Finally, the record is clear that Tanya's motion for mistrial made the court aware of her objection to the real property information of which the court had taken judicial notice. This motion was filed prior to the November 12 date set by the court for objections, and, as the court noted, preserved the issue for appeal.
The judgment is reversed and the matter remanded for retrial. Appellant is to recover her costs on appeal.
ZELON, J. We concur:
WOODS, Acting P. J.