Moore v. Quates








Filed 12/9/11 Moore v. Quates CA2/4





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

TERRY MOORE, Plaintiff and Respondent, v. KIM DENISE QUATES, Defendant and Appellant.

B226726 (Los Angeles County Super. Ct. No. BC369069)

APPEAL from a judgment of the Superior Court of Los Angeles County, Victor E. Chavez, Judge. Affirmed.
Kim Denise Quates, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
______________________________




Kim Denise Quates appeals from an adverse judgment after remittitur in an action filed by respondent Terry Moore to quiet title to property transferred to Quates by quitclaim deed. (Moore v. Quates (Oct. 14, 2009, B209488) [nonpub. opn.] (Moore).)[1] Appellant’s various arguments are either barred by the doctrine of law of the case or forfeited for failure to present them to the trial court, or do not pertain to the judgment on appeal in this case. We affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY
We borrow the relevant portions of our factual and procedural summary in Moore, omitting footnotes and substituting the parties’ names as needed. “[Terry] and Walter Moore married in May 1996 and separated in 1997. Walter filed a petition for dissolution of marriage on June 15, 2001, but remained married to [Terry] until his death on July 1, 2002. ¶ Walter purchased the property located at 1513 East Helmick Street, Carson in 1983 with a down payment provided by his mother and a loan guaranteed by the Veteran’s Administration. [Walter’s sister Kim Quates] began living at the property at the time of its purchase and continues to live there. . . .
“[Terry Moore] brought the present action to quiet title on April 6, 2007, claiming that [Quates] forged Walter’s name on the quitclaim deed with the aid of a notary who knowingly notarized the false signature. [Moore] demanded title and possession of the property as Walter’s widow and sole heir. . . .
“At trial, [Quates] testified that she has made monthly mortgage payments directly to the mortgage owner . . . since 1986. [Moore] asserted that [Quates] and Walter agreed that these mortgage payments were in lieu of rent. The parties presented contradictory expert evidence on the validity of Walter’s signature on the quitclaim deed. The deed was purportedly executed on January 18, 1994, and recorded on December 5, 1997.
“The trial court found that the deed was prepared by the notary the same day it was notarized and that the signature on the deed was not Walter’s. The court noted the form used for the quitclaim deed was not in existence when the deed was purportedly executed. Nevertheless, the court found the deed was valid because [Moore] failed to prove by a preponderance of the evidence that it was not authorized or ratified by Walter. In its statement of decision, the trial court concluded it did not have authority to award title to [Moore] without making an equitable adjustment of expenses related to the payments made by and benefits received by [Quates], which was not possible because such evidence was not presented. The trial court further ruled equity could not afford relief to [Moore] because other possible heirs to Walter’s estate were not joined in the action. For that reason, it did not reach the question of whether the will was valid. The trial court entered judgment against [Moore].”
In Moore, we reversed the judgment because the trial court had incorrectly allocated the burden of production of evidence on the issue whether the deed had been authorized or ratified to Moore. We explained that the recorded deed established a prima facie case of ownership in Quates, but “the trial court’s finding that the notary prepared the deed the same day it was notarized, rather than on the date of its purported execution, with the finding that Walter did not sign the deed, rebutted the presumption of its validity under Evidence Code section 1600.” We concluded that the burden of production then shifted to Quates to produce evidence of the deed’s validity. We also explained that, were the trial court to find the deed invalid, Walter’s estate would own the property. We remanded the case for further proceedings.
The trial on remand took place on August 5, 2010. The trial court denied Quates’s request for a continuance because her attorney could not be present, stating that the matter already had been continued twice. Quates offered a report from a fingerprint expert as evidence that Walter’s fingerprint was on the deed. The trial court did not admit the report, explaining that it had told Quates at a previous hearing that she needed to have a fingerprint expert testify about the report. The court denied Quates’s request to allow testimony by telephone. The judgment filed the same day stated that the sole issue before the court was whether Walter authorized or ratified the signature of the quitclaim deed, and Quates offered no testimony on this issue. The judgment stated further that, according to our decision in Moore, the property’s ownership was now a probate matter.
Quates filed a timely notice of appeal from the August 5, 2010 judgment.

DISCUSSION
I
On June 2, 2011, Moore’s daughter Lattisha Lynn Reed advised us that respondent had died. We continued the case to allow Reed to obtain letters of administration of her mother’s estate, to move to be substituted as respondent in this appeal, and to file a respondent’s brief. She has not done so.
When a party dies during the pendency of an appeal, we may order the substitution of another person in her place in response to a motion to do so. (Code Civ. Proc., § 377.33; Cal. Rules of Court, rule 8.36(a); see Osornio v. Weingarten (2004) 124 Cal.App.4th 304, 313, fn. 2.) Because we have not received a valid request for a substitution of parties, we proceed to resolve the appeal under the same title as the original case. (See Konig v. Fair Employment & Housing Com. (2002) 28 Cal.4th 743, 745-746, fn. 3.) We reiterate that the judgment in this case is not for the deceased respondent but rather for Walter Moore’s estate. (See Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950, 957.)
II
Quates, who did not file a respondent’s brief in the previous appeal, now asks us to redetermine who bears the burden of proof on whether the signature on the deed was authorized or ratified. The doctrine of law of the case provides that an appellate court’s decision, “‘stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.’ [Citation.]” (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491.) In Moore, we already determined that Quates had the burden of proof on this issue. That decision is law of the case and is not subject to redetermination. Alternatively, Quates argues that the deed was impliedly authorized or ratified by her brother. But she has not demonstrated that this argument or any evidence supporting it was presented to the trial court at the August 5, 2010 trial. (See Kolani v. Gluska (1998) 64 Cal.App.4th 402, 411 [failure to raise issue or argument in trial court results in forfeiture of the point on appeal].)
Quates’s remaining arguments are as follows: She asks us to void Terry and Walter Moore’s marriage under Family Code sections 2201 and 2210, subdivision (d), arguing that Terry Moore entered into the marriage under false pretenses by signing an affidavit that she had not been married. Quates argues further that, because at the original trial Moore could not remember the dates when she divorced her first two husbands, she must not have been divorced at the time she married Walter Moore and therefore was a polygamist. Quates claims that during the original trial the court erroneously accepted an unauthenticated copy of the Moores’ marriage certificate, and that during the same trial Moore’s signature expert testified about Walter’s signature based on unauthenticated documents in violation of Evidence Code section 403. In a supplemental brief, Quates reiterates the bigamy argument and also argues that, since the Moores were living apart when Walter Moore died, Terry Moore did not have priority to being appointed to administrate his estate under Probate Code sections 8461 and 8463. Some of these arguments are based on evidence that is not part of the record in this or the prior appeal.
None of these issues pertain to the August 5, 2010 judgment, and we have no jurisdiction to consider them on this appeal. (See Polster, Inc. v. Swing (1985) 164 Cal.App.3d 427, 436 [jurisdiction on appeal is limited in scope to the notice of appeal and the judgment or order appealed from].) Had Quates filed a respondent’s brief in Moore, she could have raised issues pertaining to the original judgment and supported by the record to show that Moore was not prejudiced by the errors she asserted as grounds for reversal in the previous appeal. (See Code Civ. Proc., § 906; Erikson v. Weiner (1996) 48 Cal.App.4th 1663, 1671.) But she did not, and it is not appropriate for us to consider them at this point.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



EPSTEIN, P. J.
We concur:



MANELLA, J.



SUZUKAWA, J.

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