Garcia v. Lopez

Filed 9/16/08 Garcia v. Lopez CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Simon Garcia (Garcia) and Antonio Garcia Delgado (Delgado) appeal from the judgment entered in favor of Miguel A. Lopez, respondent, following a court trial. Appellants sought, inter alia, to cancel a deed conveying a residence from Delgado to respondent. Appellants contend that the trial court erroneously 1. failed to find that the conveyance violated the statute of frauds, 2. ruled that respondent was a bona fide purchaser, and 3. ruled that their action was barred by the three-year statute of limitations for fraud. We affirm.

Factual and Procedural Background

Garcia was the owner of a residence in the City of Paramount. In July 1992 Garcia deeded the residence to his brother, Delgado. The deed states that the conveyance is "a bona fide gift."

In August 2000 Delgado deeded the residence to respondent, who in turn deeded it to himself and Bertha A. Rubio as joint tenants. Rubio was appellants' niece. Rubio died in April 2005, and respondent became sole owner as the surviving joint tenant.

In July 2006 appellants filed a second amended complaint against respondent consisting of two causes of action. The first cause of action sought to quiet Delgado's title to the residence. The second cause of action sought to cancel the deed conveying the residence from Delgado to respondent. The complaint alleged that, when Delgado signed the deed, "[h]e was unaware and incapable of understanding what he was signing."

Garcia, Delgado, and respondent testified at the court trial. Their testimony was as follows:

Garcia

On direct examination Garcia claimed that he had conveyed the residence to Delgado "to protect him." But on cross-examination Garcia testified that he was going to be incarcerated and had intended merely to "put [Delgado] in there just in the meantime" until his release from jail. Garcia did not inform Delgado of the conveyance, and he always considered himself to be the true owner of the property. It was not until April 2005 that Garcia learned that Delgado had deeded the residence to respondent. Garcia and respondent never discussed the sale of the property.

Delgado

Delgado testified that someone had forged his signature on the deed conveying the residence to respondent. Delgado remembered signing "papers" at the direction of respondent and Rubio, but he did not know what he was signing because he is illiterate. Delgado did not ask respondent and Rubio "what the papers were about," but he assumed "that it was sort of like for the purchase of a car." Delgado trusted Rubio. He received nothing in return for signing the papers.

Respondent

Respondent testified that he had purchased the residence pursuant to an agreement with Garcia. The purchase price was the amount owed on the mortgage ($123,000), "plus the escrow expenses and the expenses for the sale of the property," plus payment of a $5,000 obligation owed by Garcia. All communications with Delgado were made through Rubio. In August 2000 respondent and Delgado went to an escrow company to sign the paperwork transferring title.

Trial Court's Decision

The trial court credited respondent's testimony and completely discredited the testimony of appellants. It found that appellants "were on notice, from the time of the sale of the house in August, 2000, of all the operative facts at issue in this lawsuit." The court concluded that respondent qualified as a "bona fide purchaser." "[Respondent] gained title to the subject property as a result of purchasing the property in an 'arms length' legitimate transaction with [appellants], for a fair market price."

Accordingly, the trial court determined that appellants' claims lacked merit. But even if the claims had been meritorious, the court concluded that they would have been barred by the three-year statute of limitations for fraud that started to run in August 2000.

Statute of Frauds

Appellants contend that, pursuant to Civil Code section 1624, the trial court "should have found that the transfer of the house violated the statute of frauds." (Underscoring, capitalization, and bold typeface omitted.) Section 1624, subdivision (a)(3), provides that contracts for the sale of real property "are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party's agent."

Appellants waived the statute of frauds issue because in the trial court they did not argue that the transfer violated the statute. (See Pao Ch'en Lee v. Gregoriou (1958) 50 Cal.2d 502, 505-506; Howard v. Adams (1940) 16 Cal.2d 253, 257-258.) In any event, "the deed [conveying the residence from Delgado to respondent] is sufficient evidence to take the case out of the statute of frauds." (Cannon v. Handley (1887) 72 Cal. 133, 144.) "[T]he deed is a note or memorandum in writing of the contract, and subscribed by the party charged, and this satisfies the statute. [Citations.]" (Ibid.) 

Bona Fide Purchaser

Appellants contend that the trial court erroneously concluded that respondent qualified as a bona fide purchaser of the residence. They maintain that "a new judgment should be entered . . . finding that [respondent] acquired the real property through fraud, that he is not a bona fide purchaser and that the Grant Deed signed by [Delgado] in August of 2000 transferring title to [respondent] is void."

" '[A] bona fide purchaser for value who acquires his interest in real property without notice of another's asserted rights in the property takes the property free of such unknown rights. [Citations.]' [Citations.] ' "The elements of bona fide purchase are payment of value, in good faith, and without actual or constructive notice of another's rights. [Citation.]" [Citation.]' [Citation.]" (Melendrez v. D & I Investment, Inc. (2005) 127 Cal.App.4th 1238, 1251.)

Appellants argue that we must independently review the trial court's determination that respondent was a bona fide purchaser. They are mistaken. "[T]he issue of whether a buyer is a BFP [bona fide purchaser] is a question of fact. [Citations.] Accordingly, we will reverse a trial court's determination on this question only if it is not supported by substantial evidence. [Citations.]" (Melendrez v. D & I Investment, Inc., supra, 127 Cal.App.4th at p. 1254; accord, Triple A Management Co., Inc. v. Frisone (1999) 69 Cal.App.4th 520, 536.) "We must . . . view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor . . . . [Citations.]" (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.) "When two or more inferences can reasonably be deduced from the facts, we do not substitute our deductions for those of the finder of fact. [Citation.] We must affirm if substantial evidence supports the trier of fact's determination, even if other substantial evidence would have supported a different result. [Citation.]" (Canister v. Emergency Ambulance Service (2008) 160 Cal.App.4th 388, 394.)

Respondent's testimony, together with the deed conveying the residence to him, constitutes substantial evidence that he was a bona fide purchaser. The deed states that the conveyance is "for a valuable consideration." Respondent testified that the purchase price was the amount owed on the mortgage ($123,000), "plus the escrow expenses and the expenses for the sale of the property," plus payment of a $5,000 obligation owed by Garcia. Furthermore, respondent testified that Garcia had agreed to the terms of the sale.

Appellants argue that respondent could not have qualified as a bona fide purchaser because he failed to present "substantive proof" that he had purchased the residence for its fair market value. We need not consider whether respondent paid fair market value because this issue does not affect his status as a bona fide purchaser. "The first element [of being a bona fide purchaser - that the buyer purchased the property in good faith for value -] does not require that the buyer's consideration be the fair market value of the property (or anything approaching it). [Citation.] Instead, the buyer need only part with something of value in exchange for the property. [Citation.]" (Melendrez v. D & I Investment, Inc., supra, 127 Cal.App.4th at p. 1251.)

Appellants attack respondent's credibility. They allege that respondent's testimony "was clearly inconsistent with his deposition testimony" and that he "lied when he stated that he negotiated in August of 2000 with [Garcia]." But the trial court expressly credited respondent's testimony and discredited the testimony of appellants. Because respondent's testimony was not inherently improbable, we will not disturb the court's determination of credibility. " 'Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category. [Citation .] To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]' [Citations.]" (People v. Thornton (1974) 11 Cal.3d 738, 754, disapproved on another ground in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.)

In rejecting Garcia's testimony, the trial court noted that "his demeanor was evasive and he appeared to be molding his testimony to the questions by counsel

and the court." Appellants contend that the trial court erroneously relied upon their "demeanor . . . to come to a decision that appellants were elusive and molding their answers." We disagree. "[A]ppellate courts should . . . defer to the fact finder's assessment of a witness's credibility because the fact finder was able to observe the witness's demeanor [citation] . . . ." (Harustak v. Wilkins (2000) 84 Cal.App.4th 208, 213; see also People v. Cudjo (1993) 6 Cal.4th 585, 608 [one of the reasons for excluding hearsay evidence is that "the jury (or other trier of fact) is unable to observe the declarant's demeanor"].)

Statute of Limitations

Appellants acknowledge that the three-year statute of limitations for fraud applies and that the statute began to run when they received notice of the conveyance of the residence to respondent. (Code Civ. Proc.,  338, subd. (d).) The trial court found that appellants "were on notice, from the time of the sale of the house in August, 2000, of all the operative facts at issue in this lawsuit." Substantial evidence supports this finding. The original complaint was filed on November 9, 2005, more than three years after appellants received notice of the conveyance. The trial court, therefore, did not err in concluding that appellants' action is barred by the statute of limitations.

Disposition

The judgment is affirmed. Respondent shall recover his costs on appeal.

NOT TO BE PUBLISHED.

YEGAN, Acting P.J.

We concur:

COFFEE, J.

PERREN, J.

Ann I. Jones, Judge

Superior Court County of Los Angeles

______________________________

Hilda Gazon-Ayvazian, for Appellants.

John F. Bazam, Manuel Huerta; Bazn Huerta & Associates, for Respondent.

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