Estate of Hellen

















Filed 1/18/13 Estate of Hellen CA2/5

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>NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS

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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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115>.







IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND APPELLATE DISTRICT



DIVISION FIVE




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Estate of PATRICIA FAYE HELLEN, Deceased.	B242872 (Los Angeles County Super. Ct. No. LP013667)
RAYMOND L. HELLEN, As Administrator, Etc., Petitioner and Appellant, v. JP MORGAN CHASE BANK, Objector and Respondent.

APPEAL
from an order of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, James A. Steele, Judge. Affirmed.

Raymond
L. Hellen, in pro. per. for Petitioner and Appellant.

Anderson,
McPharlin & Conners LLP, Jesse S. Hernandez and Richard P. Tricker, for
Objector and Respondent.

I. INTRODUCTION



Plaintiff, Raymond L. Hellen, the
administrator of his deceased wife’s estate, appeals from an order dismissing
his declaratory relief petition. Plaintiff,
in his capacity as administrator, sought to invalidate a trust deed held by the
objector, JPMorgan Chase Bank, securing a loan to the decedent. The probate court dismissed the petition
after sustaining a demurrer without leave to amend on href="http://www.mcmillanlaw.com/">statute of limitations ground. We affirm.



II. FACTS



In
reviewing an order after a demurrer is sustained without leave to amend, all
well-pleaded factual allegations must be assumed as true. (Naegele v. R.J. Reynolds
Tobacco Co. (2002) 28 Cal.4th 856, 864-865; Blank v. Kirwan
(1985) 39 Cal.3d 311, 318.) The first
amended declaratory relief petition contains the following allegations. The decedent took title to the residence in West Hills, California as an
unmarried woman in 1994. Plaintiff and
the decedent were married on September 7, 1999. The couple remained married until the
decedent’s death on October 10, 2007. They resided at the residence prior to and
after their marriage until the decedent’s death.

In
2005, the couple jointly applied for a loan with Stearns Lending, Inc. During the application process, the lender
gained knowledge that the Hellens were married and residing at the residence. The decedent requested in writing that title
to the residence vest as, “Patricia Hellen and Raymond L. Hellen, as husband
and wife” and as community property. In
June 2005, the lender elected to make a loan solely to the decedent. On June 24, 2005, a
notary witnessed the decedent signing a grant deed vesting title in the
property as, “Patricia Hellen, a married woman as her sole and separate
property.” The notary also witnessed the
decedent signing the trust deed to the objector. Plaintiff did not execute the href="http://www.fearnotlaw.com/">trust deed. The grant and trust deeds were recorded on July 7, 2005. On or after July 7, 2005, the decedent received the full amount of the loan as stated in the
closing documents in the approximate amount of $423,000.

After
the decedent’s death in 2007, plaintiff filed verified petitions for spousal
property and letters of administration on May 27, 2008. The spousal support petition alleged the
residence was community property. The
spousal support petition listed the encumbrance in the amount of $476,481.38
against the residence. On May 4, 2010, the court ruled that plaintiff owned an undivided one-half
interest in the residence. The estate
retained an undivided one-half interest in the property.

On
April 4, 2011, plaintiff filed the first amended href="http://www.mcmillanlaw.com/">declaratory relief petition as the
estate administrator. The first amended
petition alleges an actual controversy exists between plaintiff and objector
concerning their rights and duties under the trust deed. Plaintiff contends: the trust deed is void ab initio; the
objector has no interest in the residence; and the objector does not have a
priority status over other estate creditors.
The objector demurred to the first amended petition on the grounds the
trust deed was valid and the petition was time barred by Family Codehref="#_ftn1" name="_ftnref1" title="">[1]> section 1102, subdivision
(d).

The
probate court held a hearing on the demurrer on January 10, 2012. According to the February 28, 2012 minute order, the probate court allowed the parties to file
supplemental briefs “solely” on the statute of limitations issue. However, plaintiff did not include the
reporter’s transcript of the January 10, 2012 hearing in the
record on appeal. Nor has plaintiff
provided us with the minute order of
the January
10, 2012 hearing. After the January 10, 2012 hearing, the
parties filed supplemental briefs in support of and in opposition to the
demurrer. On February 28, 2012, citing the one-year statute of limitation in section 1102,
subdivision (d), the probate court sustained the demurrer without leave to
amend. The minute order indicates that
the probate court had considered plaintiff’s claims section 1102, subdivision
(d) was inapplicable because Stearns Lending, Inc. was not a bona fide
purchaser for value. The probate court
ruled the superior court file indicated that plaintiff knew the encumbrance
existed on the property no later than May 27, 2008,
when the spousal property petition was filed.
Yet, plaintiff waited until April 4, 2011, to
file the probate petition seeking to invalidate the trust deed. No hearing was held on February 28, 2012. Notice of entry of the
order was served April 23, 2012. This timely appeal followed.



III. DISCUSSION



A. Standard of Review



Our
Supreme Court has defined our task as follows, “‘Our only task in reviewing a ruling on a demurrer is to
determine whether the complaint states a cause of action.’” (People
ex rel. Lungren v. Superior
Court (1996) 14 Cal.4th 294, 300; Moore
v. Regents of University of
California (1990) 51 Cal.3d 120, 125.)
We assume the truth of the petition’s allegations which have been
properly pleaded and give them a reasonable interpretation by reading it as a
whole and with all its parts in their context.
(Stop Youth Addiction, Inc. v.
Lucky Stores, Inc. (1998) 17 Cal.4th
553, 558; People ex rel. Lungren v.
Superior Court, supra, 14 Cal.4th at p. 300;
Aubry v. Tri-City Hospital
Dist. (1992) 2 Cal.4th 962, 967.)
However, the assumption of truth does not apply to contentions,
deductions, or conclusions of law and fact.
(People ex rel. Lungren v.
Superior Court, supra, 14 Cal.4th at pp. 300-301; Moore v. Regents of
University of California, supra,
51 Cal.3d at p. 125.) Furthermore,
any allegations that are contrary to the law or to a fact of which judicial
notice may be taken will be treated as a nullity. (Interinsurance
Exchange v. Narula (1995)
33 Cal.App.4th 1140, 1143; Fundin v.
Chicago Pneumatic Tool Co. (1984) 152
Cal.App.3d 951, 955.) Our Supreme Court
has held: “On appeal from a judgment of
dismissal entered after a demurrer has been sustained without leave to amend,
unless failure to grant leave to amend was an abuse of discretion, the
appellate court must affirm the judgment if it is correct on any theory. [Citations.]
If there is a reasonable possibility that the defect in a complaint can
be cured by amendment, it is an abuse of discretion to sustain a demurrer without
leave to amend. [Citation.] The burden is on plaintiff, however, to demonstrate
the manner in which the complaint might be amended. [Citation.]”
(Hendy v. Losse (1991) 54
Cal.3d 723, 742; Goodman v. >Kennedy (1976) 18 Cal.3d 335, 349.)



B. Limitation Of Action



Plaintiff
contends the probate court’s dismissal order must be reversed because: the
trust deed is void ab initio under section 1102, subdivision (a); the objector
is not a bona fide purchaser in that the lender had knowledge of the marital
relationship; the lender’s actual knowledge precludes application of section
1102, subdivision (d); the grant and trust deeds contain numerous
irregularities; and foreclosure proceedings are required to be brought in the
probate court. We disagree.

Section
1102, subdivision (a)href="#_ftn2"
name="_ftnref2" title="">[2]> requires both spouses to execute
instruments conveying any community real property or interests therein for a
period exceeding one year. Because of
the decedent’s death, any transfer of community real property in violation of
this section is not void; rather, it is voidable by the timely challenge of the
non-consenting spouse. (>Droeger v. Friedman, Sloan & Ross
(1991) 54 Cal.3d 26, 31, 33-35; Marvin v.
Marvin (1976) 18 Cal.3d 660, 672-674; Hyatt
v. Mabie (1994) 24 Cal.App.4th 541, 545-546.) The non-consenting spouse’s right to
invalidate the transfer applies only to his or her community interest. (Droeger
v. Friedman, Sloan & Ross, supra,
54 Cal.3d at pp. 33-35; Hyatt v. Mabie,
supra, 24 Cal.App.4th at pp.
545-546.) In any event, section 1102,
subdivision (d)href="#_ftn3" name="_ftnref3"
title="">[3]
requires an action to avoid any instrument failing to comply with subdivision
(a) be commenced within one year of its recording.

Here,
the instrument encumbering the property was recorded on July 7, 2005. Thus, in order to void the instrument,
plaintiff was required to commence an action by July 6, 2006. (§ 1102, subd. (d).) However, plaintiff waited until April 4,
2011, to file the declaratory relief petition.
This was almost six years after the instrument encumbering the property
was recorded. Section 1102, subdivision
(d) requires the action to avoid the instrument be commenced within one year
after it is recorded. Thus, the
declaratory relief petition was untimely filed.


Furthermore,
plaintiff is incorrect that application of the standard in Byrd v. Blanton (1983) 149 Cal.App.3d 987, 993 requires a different
result. In Byrd, the appellate court refused to apply the one-year statute of
limitation against a widow claiming a community interest in real property. (Id.
at p. 990.) The husband conveyed title
to himself and his mother without the wife’s knowledge or consent. (Id.
at p. 989.) The mother-in-law knew of
the marriage relationship and the wife’s lack of knowledge or consent to the
conveyance. (Id. at p. 989.) >Byrd does not control the disposition of
this case. Plaintiff knew about the
encumbrance no later than May 2008.
However, plaintiff waited almost three years to file the petition
seeking to avoid the effect of the recordation of the deed. The objector’s demurrer was properly
sustained because plaintiff failed to make a timely challenge to the
instrument. (§ 1102, subd. (d); >Droeger v. Friedman, Sloan & Ross, >supra, 54 Cal.3d at pp. 31, 33-35.)









C. Amendment



We are unable to conclude the
probate court abused its discretion in sustaining the demurrer without leave to
amend. A judgment is presumed to be
correct and an appellant has a duty to provide the reviewing court with an
adequate record to demonstrate error. (>Denham v. Superior Court (1970) 2 Cal.3d
557, 564; Ermoian v. Desert Hospital
(2007) 152 Cal.App.4th 475, 494; Fladeboe
v. American Isuzu Motors, Inc. (2007) 150 Cal.App.4th 42, 58.) In numerous situations, appellate courts have
refused to reach the merits of an appellant’s claims because no reporter’s
transcript of a pertinent proceeding or a suitable substitute was
provided. (Walker v. Superior Court
(1991) 53 Cal.3d 257, 273-274 [transfer order]; Maria P. v. Riles (1987) 43 Cal.3d 1281,
1295-1296 [attorney fee motion hearing]; Ballard v. Uribe (1986) 41
Cal.3d 564, 574-575 (lead opn. of Grodin, J.) [new trial motion hearing]; In
re Kathy P. (1979) 25 Cal.3d 91, 102 [hearing to determine whether counsel
was waived and the minor consented to informal adjudication]; >Boeken v. Philip Morris Inc. (2005)
127 Cal.App.4th 1640, 1672 [transcript of judge’s ruling on an instruction
request]; Vo v. Las Virgenes Municipal Water Dist.(2000) 79 Cal.App.4th
440, 447 [trial transcript when attorney fees sought]; Estate of Fain (1999)
75 Cal.App.4th 973, 992 [surcharge hearing]; Hodges v. Mark (1996)
49 Cal.App.4th 651, 657 [nonsuit motion where trial transcript not
provided]; Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th
1445, 1448 [monetary sanctions hearing]; Null v. City of Los Angeles
(1988) 206 Cal.App.3d 1528, 1532 [reporter’s transcript fails to reflect
content of special instructions]; Buckhart v. San Francisco Residential Rent
etc. Bd. (1988) 197 Cal.App.3d 1032, 1036 [hearing on Code Civ. Proc.,
§ 1094.5 petition]; Sui v. Landi (1985) 163 Cal.App.3d 383, 385-386
[motion to dissolve preliminary injunction hearing]; Rossiter v. Benoit
(1979) 88 Cal.App.3d 706, 713-714 [demurrer hearing]; Calhoun v. Hildebrandt
(1964) 230 Cal.App.2d 70, 71-73 [transcript of argument to the jury]; Ehman
v. Moore (1963) 221 Cal.App.2d 460, 462 [failure to secure reporter’s
transcript or settled statement as to offers of proof]; Wetsel v. Garibaldi (1958) 159 Cal.App.2d 4, 10 [order
confirming arbitration award].) The
objector is correct that plaintiff’s failure to secure a reporter’s transcript
on appeal or a settled statement requires the order dismissing the petition be
affirmed. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132
[lead opinion of George, C. J.]; Ballard
v. Uribe, supra, 41 Cal.3d at pp.
574-575.)



IV. DISPOSITION



The
dismissal order is affirmed. The
objector, JPMorgan Chase Bank, is awarded its costs on appeal from plaintiff,
Raymond L. Hellen, administrator of the estate of Patricia Faye Hellen.

NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS





TURNER,
P. J.



We concur:





ARMSTRONG,
J.





MOSK,
J.