Javier v.
Filed 4/26/13 Javier v. Taylor CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
HAYDEE C. JAVIER,
Plaintiff and
Appellant,
v.
DENNIS MILTON TAYLOR et al.,
Defendants and
Respondents.
H038210
(Santa Clara
County
Super. Ct.
No. CV208559)
In 2010, appellant Haydee C. Javier
filed an quiet title action alleging
that she had an ownership interest in residential real property that
respondents Dennis Milton Taylor and Laura Jeanne Taylor (hereafter, the
Taylors) purchased in 1986. The Taylors demurred on the grounds that Haydee’s
were barred by the applicable statutes of limitation and the
claim to an ownership interest in the property now owned by the Taylors was previously rejected by the trial court
in prior actions in 1985 and 1990. On February
29, 2012, the trial
court sustained the Taylors’ demurrer without leave to amend, finding that the action was
time-barred under Code of Civil Procedure section 338, subdivision (d),
three-year statute of limitations applicable to a quiet title action based on
fraud.
On appeal from the judgment of
dismissal, we understand Haydee, a self-represented litigant, to challenge the
trial court’s order sustaining the demurrer without leave to amend and to
request that she be granted leave to amend the complaint. For reasons that we will explain, we conclude
that the trial court did not err in determining that Haydee’s action is
time-barred and denying leave to amend the complaint. We will therefore affirm the judgment.
A.
Haydee
filed a complaint captioned “Action to quiet title; fraud; equitable lien†on July 25,
1984 in
County, 1984, No. 554186). According to
the allegations in the complaint, Haydee was married to defendant Noe Martinez
Javier from 1949 until an interlocutory judgment of dissolution of marriage was
entered in 1982. The 1982 final judgment
in the marital dissolution action awarded Haydee “a one-half interest†in
certain real property in San Jose described in part as “Parcel 4†and “known as Assessor’s Parcel Number
654-13-8.â€
The complaint further alleged that
in 1975, Noe and co-defendant J. Schiedeck Tindel (Tindel) acquired title to
the Parcel 4 property by using community funds from the marriage of Noe and
Haydee. Noe and Tindel allegedly “took
title falsely as husband and wife using the alias names of Macicampo at said
time when defendants and each of them knew that defendant [Noe] was lawfully
married to [Haydee].†Thereafter,
allegedly without Haydee’s consent, Noe and Tindel delivered a grant deed to
Tindel as an individual that “purported to convey the entire estate of the
subject property to defendant Tindel.â€
Additionally, the complaint alleged
that the final judgment of dissolution had also awarded Haydee a one-half
interest in real property located at 2789 Gumdrop Drive in San Jose. The Gumdrop Drive property is not at issue in the present
appeal. As to Parcel 4, the complaint
sought cancellation of the deed for Parcel 4 and a ruling that the property was
the community property of Noe and Haydee and that Tindel had no title or
interest in the property adverse to Haydee.
Tindel demurred to the complaint and
on January 10, 1985, the trial court issued its “Order After Notice of Motion†dismissing
the complaint in Javier v. Javier, supra,
case No. 554186 with prejudice. The
order states in part: “The complaint . .
. is hereby dismissed with prejudice and that neither Plaintiff, Haydee C.
Javier, nor any agent, representative or successor in interest therefore has
any right, title or interest in or to that certain parcel of real property more
particularly described in Exhibit ‘A’ attached hereto and incorporated herein,
notwithstanding that certain Final Judgment of Dissolution . . . .†Exhibit “A†was not included in the record on
appeal. Haydee’s 1990 motion to set
aside the dismissal was denied on January 25, 1991.
B. The 1990 Trial Court Order
On April 10, 1990, Haydee filed a complaint captioned “Post
Dissolution Complaint for Partition of Real Property†in a new action entitled
County, 1990, No. 699882). The complaint
alleged that the judgment of dissolution of Haydee’s marriage to Noe had
awarded her a one-half interest in the property “known as Parcel
4 . . . now commonly known as 3887 Canyon Court, San Jose.†The complaint further alleged
that unknown to Haydee, at the time of dissolution the title to Parcel 4 had
been recorded in Tindel’s name as her separate property. Haydee’s prior action to quiet title in
Parcel 4 was dismissed, according to Haydee, because her attorney had failed to
timely amend the complaint after Tindel’s demurrer was sustained with leave to
amend. She also asserted that Tindel’s
attorney had falsely altered the 1985 order dismissing the prior action by
adding the language to the order stating that she had no interest in Parcel 4.
According to the complaint, Parcel 4
was sold by defendant Joyce Gomez (who had acquired title under the name
Tindel) to defendants Dennis and Laura Taylor (the Taylors) in 1986.
Haydee sought the partition and sale of Parcel 4 and distribution of
one-half the sales proceeds to her and one-half to the Taylors.
The Taylors demurred to the complaint and on August
30, 1990, the trial
court entered its order sustaining the demurrer without leave to amend “on the
grounds of failure to state facts sufficient to constitute a cause of
action.†The order of dismissal in
was entered on August 30, 1990.
Haydee’s motion to set aside and reconsider the dismissal was denied on February
19, 1991. Her appeal of the order of dismissal was
dismissed by this court in June 1991 because her notice of appeal was untimely.
C. The 2012 Trial Court Order
Haydee commenced the instant action in 2010
and filed an amended complaint on September 2, 2011, naming Tindel
Taylors as defendants. According to the
complaint, Haydee acquired a one-half interest in Parcel 4 in 1975, the
Taylors’ 1986 grant deed for Parcel 4 was a “ ‘Wild Deed,’ †and she had
told the Taylors to leave the property and move their house to another
parcel. Haydee sought cancellation of
the 1986 deed, a ruling that Parcel 4 was her community property, and a ruling
neither Tindel nor the Taylors had any interest in the property.
The Taylors demurred to the complaint on the grounds
that the action was barred under the doctrine of res judicata and the
applicable statutes of limitations. The demurrer was accompanied by a request for
judicial notice of the complaints, orders, and related documents filed in the
prior actions, Javier v. Javier,
v. Javier, supra, case No.
699882. In their memorandum of points and authorities
in support of the demurrer, the Taylors argued that res judicata barred the
action because Haydee’s “claim to quiet title to the property is identical to
the same claim she brought and lost in the prior proceedings in 1985 and in
1990.â€
The action was also time-barred,
according to the Taylors, under either the four-year limitations period
provided by section 343 for an action to cancel a deed or the three-year
limitations period provided by section 338, subdivision (d) for an action for
the recovery of real property when the gravamen of the action is fraud. The Taylors noted that the amended complaint
“appears to contend that the Taylors obtained title by way of a fraudulent deed
in 1986.†Although the Taylors
acknowledged that the amended complaint did not plead any facts showing when
Haydee first learned of the allegedly fraudulent deed, they argued that it was
a judicially noticeable fact that Haydee became aware of it no later than April
10, 1990, when she filed suit against them seeking partition of the
property. Since her present action was
not filed until 2010, the Taylors asserted that the action was untimely filed
under either section 343 or section 338, subdivision (d).
The trial court sustained the
demurrer without leave to amend in its February 29, 2012 order. The order states: “There is no specific statute of limitations
for an action to quiet title instead, the applicable period is based on the
theory of relief underlying the action.
[Citation.] Plaintiff’s theory of
relief is predicated on a finding of fraud, and therefore the applicable
statute of limitations is three years as provided by [section] 338, subdivision
(d). This period of time began to run
when Plaintiff discovered the facts constituting the alleged fraud. [Citation.]
Facts contained in the judicially noticeable documents supplied by
Defendants demonstrate that Plaintiff learned of the fraud no later than April
10, 1990, when she filed suit against Defendants and other[s] seeking to quiet
title to the subject property. The
instant action was not filed until December 28, 2010, more than seventeen years
after the three-year limitations period had expired. Accordingly, Plaintiff’s claim is time-barred.â€
The order dismissing the action with
prejudice was entered on February 29, 2012.
Haydee subsequently filed a timely notice of appeal.
On appeal,
we understand Haydee to challenge the
trial court’s order sustaining the demurrer without leave to amend and to
request that she be granted leave to amend the complaint. We will therefore begin our evaluation with
the applicable standard of review.
A. Standard
of Review
On appeal from a judgment of dismissal after a demurrer is sustained
without leave to amend, the reviewing court assumes the truth of all facts
properly pleaded by the plaintiff. (
Cal.4th 1, 6 (Evans).) “We also
as true all facts that may be implied or reasonably inferred from those
expressly alleged. [Citation.]â€
(Rotolo v. San Jose Sports &
Entertainment, LLC (2007) 151 Cal.App.4th 307, 320-321.) Further, “we give the complaint a reasonable
interpretation, and read it in context.â€
(Schifando v. City of Los Angeles
(2003) 31 Cal.4th 1074, 1081 (Schifando).) But we do not assume the truth of
“ ‘ “contentions, deductions or conclusions of fact or
law.†’ †(Evans, supra, 38 Cal.4th at p. 6.)
We also consider matters that may be
judicially noticed and the complaint’s exhibits. (§ 430.30, subd. (a);
1081.) Evidence Code section 452,
subdivision (d) authorizes judicial notice
of court records. “ ‘The court may in its discretion take
judicial notice of any court record in the United States. [Citation.]
This includes any orders, findings of facts and conclusions of law, and
judgments within court records.
[Citations.] However, while
courts are free to take judicial notice of the existence of each
document in a court file, including the truth of results reached, they may not
take judicial notice of the truth of hearsay statements in decisions and court
files.’ [Citation.]†(In re
Vicks (2013) 56 Cal.4th 274, 314.)
Where, as here, the defendant demurs
on the primary ground that the action is time-barred under the affirmative
defense of the statute of limitations, we apply the following standard: “ ‘ “A
a statute of
lie where the
action may be,
but is not
for the bar .
. . to be raised
by demurrer, the
defect must clearly
and affirmatively appear
on the face
[and matters subject to judicial notice]; it
shows that the
action may be
barred. [
[Citation.]†(
County Bd. of Supervisors (2010) 48 Cal.4th 32, 42; accord, § 430.30,
subd. (a).)
In the
present case, Haydee’s largely unintelligible opening and reply briefs do not
address the trial court’s ruling that her action is time-barred. In their respondents’ brief, the Taylors
argue that the trial court properly sustained their demurrer without leave to
amend on the ground the complaint was untimely filed after expiration of the
three-year statute of limitations provided by section 338, subdivision
(d). They also reiterate their argument
below that the action is barred under the doctrine of res judicata because
Haydee seeks to relitigate a claim she has already litigated and lost. Finally, the Taylors maintain that the trial
court did not abuse its discretion in denying leave to amend, since the defects
in the complaint cannot be cured by amendment.
At the
outset, we find that Haydee has not met her burden as an appellant. The general rule is that the trial court’s
judgment or order is presumed correct and on appeal, error must be
affirmatively shown. (
v. Superior Court (1970) 2
Cal.3d 557, 564.) The appellant
therefore has the burden of raising claims of “reversible error or other
defect†and to “ ‘present argument and authority on each point made’
[citations].†(In re Sade C. (1996) 13 Cal.4th 952, 994.) Where the appellant fails to do so, “he [or
she] may, in the court’s discretion, be deemed to have
In that event, it may order dismissal.
[Citation.]†(
Since
Haydee has not even attempted to affirmatively show reversible error in the
trial court’s orders sustaining the Taylors’ demurrer without leave to amend
and dismissing the action with prejudice, her appeal is subject to
dismissal. We acknowledge that Haydee is
a self-represented litigant, but she is
not exempt from compliance with the rule that an appellant must affirmatively
show reversible error because she is representing herself on appeal. The California Supreme Court has
instructed that “[e]xcept when a particular rule provides otherwise, the rules
of civil procedure must apply equally to
represented by counsel and those who forgo attorney representation. [Citation.]â€
(Rappleyea v. Campbell (1994)
8 Cal.4th 975, 984-985.) Thus, a
self-represented litigant “ ‘is to
be treated like any other party and is entitled to the same, but no greater
consideration than other litigants and attorneys. [Citation.]’
[Citation].†(
1229, 1247.)
Although as
the reviewing court we are “ ‘not required to discuss or consider points which
are not argued’ †(Kim v. Sumitomo Bank
(1993) 17 Cal.App.4th 974, 979), instead of dismissing Haydee’s appeal we will
briefly explain that the trial court did not err in ruling that her action was
time-barred under the three-year limitations period provided by section 338,
subdivision (d).
Haydee has
generally styled her claim for an ownership interest in the Taylors’ property
as a quiet title action. We observe that
“as a general matter an action to quiet title cannot be maintained by the owner
of equitable title as against the holder of legal title.†(Warren
v. Merrill (2006) 143 Cal.App.4th 96, 113, fn. omitted.) However, “when legal title has been acquired
through fraud any number of remedies are available and appropriate. These remedies include quieting title in the
defrauded equitable title holder’s name and making the legal title holder the
constructive trustee of the property for the benefit of the defrauded equitable
titleholder. . . . ‘And appropriate
remedies, such as cancellation, reconveyance, or decrees quieting title, or
establishing or enforcing trusts, . . . may be had, as between proper parties
under our system . . . . [Citations.]’
†(Id.
at p. 114, fns. omitted.)
“To
determine the statute of limitations which applies to a cause of action it is
necessary to identify the nature of the cause of action, i.e., the ‘gravamen’
of the cause of action.
[Citations.] ‘[T]he nature of the
right sued upon and not the form of action nor the relief demanded determines
the applicability of the statute of limitations under our code.’ [Citation.]â€
(Hensler v. City of Glendale (1994)
8 Cal.4th 1, 22-23.) Therefore, “[s]ince
there is no statute of limitations governing quiet title actions as such, it is
ordinarily necessary to refer to the underlying theory of relief to determine
which statute applies.
[Citations.]†(
558, 560.)
Where the
gravamen of a quiet title action is fraud, the applicable statute of
limitations is section 338, subdivision (d).
v. Walker-Smith (1996) 44 Cal.App.4th 610, 615.) “A cause of action subject to section 338,
subdivision (d), does not accrue ‘until the discovery, by the aggrieved party,
of the facts constituting the fraud or mistake.’ [Citations.]â€
(Id. at p. 615.)
Having
independently reviewed the court records subject to judicial notice (Evid.
Code, § 452, subd. (d)(1)) including the complaints in Javier v. Javier, supra,
case No. 554186 and Javier v. Javier,
supra, case No. 699882, we agree with
the trial court that the gravamen of Haydee’s claim is fraud. In the complaint filed in 1990 in case
No. 699882, Haydee alleged that “[o]n September 30, 1985, Noe Javier
signed a sworn statement indicating that he used a fictitious name and
[Haydee’s] money to purchase Parcel 4 with intent to deprive [Haydee] of her
community property interest. . . . [¶] On July 21, 1986 Joyce Gomez, who acquired
title as J. Schiedeck Tindel, a married woman as her sole and separate property
transferred Parcel 4 to Dennis and Laura Taylor as husband and wife as Joint
Tenants.†These allegations show that no
later than 1990, Haydee had discovered the facts constituting the fraud by
which Noe allegedly acquired the title to Parcel 4 despite Haydee’s community
property interest, including the subsequent transfer of title to Tindel, and,
in turn, to the Taylors. (See, e.g.,
214 [action where the plaintiff sought to quiet title on the ground that the
defendant’s title was secured from the plaintiff by fraud].)
In the
present case, therefore, the three-year limitations period provided by
section 338, subdivision (d) for a quiet title action where the gravamen
of the action is fraud expired in 1993, three years after Haydee discovered in
1990 the facts constituting the fraud in connection with the transfer of Parcel
4’s title to the Taylors. Since the
complaint was not filed until December
28, 2010, we conclude that the action is time-barred under section 338,
subdivision (d).
Finally, we note that in her reply
brief Haydee requests that she be allowed to amend her complaint because she
intends to “present new facts . . . with an Attorney.†If the trial court has denied leave to amend the complaint following the
sustaining of a demurrer, we review the court’s determination that no
amendment could cure the defect in the complaint for abuse of discretion. (Schifando,
supra, 31 Cal.4th at p. 1081.)
burden of proving
there is a
To satisfy that burden, the plaintiff
‘ “must show
his [or her] complaint
the legal effect
of his pleading.†[Citation.]
of an abstract
right to amend
does not satisfy
this burden. [Citation].’ †(Rosen
v. St. Joseph Hospital of Orange County (2011) 193 Cal.App.4th 453, 458.)
Here, Haydee has not met her burden
to show that the trial court abused its discretion in denying leave to amend,
since she has not shown the manner in which she would amend the complaint to
avoid the three-year statute of limitations set forth in section 338,
subdivision (d). We therefore determine
that the trial court did not err in sustaining the Taylors’ demurrer without
leave to amend.
Having concluded that the trial
court properly sustained the Taylors’ demurrer without leave to amend on
affirm the order dismissing the action with prejudice.
The order dismissing the action with
prejudice is affirmed. Costs on appeal are
awarded to respondents.
___________________________________________
Bamattre-Manoukian, J.
WE CONCUR:
__________________________
ELIA, ACTING P.J.
__________________________
Márquez,
J.
name="_ftn1" title=""> [1]
We will refer to former spouses Haydee C. Javier and Noe Martinez Javier by
their first names for purposes of clarity and meaning no disrespect.
name="_ftn2" title=""> [2]
All statutory references hereafter are to the Code of Civil Procedure unless
otherwise indicated.
