Filed 9/16/26 Palestino v. Lopez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
SILVIA GARCIA PALESTINO, 2d Civ. No. B343253
(Super. Ct. No. 19FL01063)
Petitioner and Appellant, (Santa Barbara County)
v.
CRISTOBAL PALESTINO
LOPEZ,
Respondent.
Silvia Garcia Palestino (Wife), through her guardian ad
litem Robert Gutierrez, appeals a family court order directing her
to buy out the 50 percent community property interest held by
Cristobal Palestino Lopez (Husband) in the Santa Maria house
they shared during marriage. Wife contends she and her sister
own the house as their separate property. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The House
Husband and Wife married in 2003. They tried to buy a
house but did not qualify for a loan. A loan officer recommended
they find a co-borrower. Wife’s sister, Jacqueline Gutierrez,
agreed to apply for an FHA loan on their behalf in 2009.
Husband and Wife used the loan to buy a five-bedroom house in
Santa Maria. They provided the down payment to Jacqueline
and agreed to assume the mortgage and taxes. Jacqueline1 alone
appeared on the deed.
Husband and Wife rented four of the house’s bedrooms for
between $600 and $800 per month. Husband collected the rent.
He used the rent proceeds and earnings from his job to pay the
mortgage. They reported the property on their tax returns.
Jacqueline never lived in the house or received rent from them.
In 2011, Jacqueline transferred a 50 percent joint tenancy
interest to Wife as “a married woman as her sole and separate
property . . . .” Wife paid nothing in exchange for the transfer.
Husband signed an interspousal transfer grant deed at this time
conveying any interest he held to Wife.
Husband and Wife separated in 2018. Wife petitioned for
dissolution in 2019. The family court appointed Wife’s brother as
her guardian ad litem soon after. Wife’s family members began
collecting rent and paying the mortgage after Husband moved
out of the house. The court entered a status-only judgment of
dissolution in December of 2019.
2020 Trial
The family court held a three-day trial on property division
and spousal support in October of 2020. Husband and Wife were
1 We use first names for clarity. No disrespect is intended.
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the only witnesses. They disputed whether Husband held a
community property interest in the house. Husband testified
they bought the house together in 2009 but his undocumented
status prevented him from appearing on title. They planned to
add him once he received a social security number. The loan
officer said Jaqueline needed to appear on title alone for the first
two years for insurance reasons. When two years passed,
Husband signed the interspousal transfer grant deed so
Jacqueline could transfer an interest to Wife. His immigration
status was not yet settled at the time so he did not yet have a
social security number.
Wife testified only briefly. She stated Husband “didn’t
mention” they would own the house together. She remembered
Husband paid the mortgage but could not explain why he did not
appear on title.
After closing argument, the court stated, “I found
[Husband]’s testimony to be credible throughout, and I thought
that the record showed pretty clearly that all of the payments
that were necessary to purchase the house had come from the
community; the down payment and each of the succeeding
payments. So, it doesn’t seem to me that we have a case where
there was separate property or separate rents.” The court found
Jacqueline facilitated the purchase but contributed only her
name and credit. It believed dividing the asset was necessary,
ideally by ordering Wife to buy Husband’s interest. The court
acknowledged it was “not in a position jurisdictionally to handle
the interest of [Jacqueline]” because she was not a party to the
case.
The parties proposed a stay so they could explore a buyout
by Wife. Husband’s counsel stated he intended to file a quiet title
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action to determine Jacqueline’s interest. Wife’s counsel
explained that Wife’s family would likely “do everything they
[could]” to keep her in the house. The court responded, “Yeah.
And the quiet title could affect that. So, I think the proposal for a
stay, for a reasonable time at least – I mean, the court has made
the – the decision that they would have an equal community
property interest in whatever the community property is.” It
stayed the case and reserved the issues of property division and
spousal support.
2024 Trial
No quiet title action was filed. The court joined Jacqueline
to the dissolution case in 2023.2 Husband requested an order to
sell the house and split the proceeds. The family court held a
two-day trial to determine Jacqueline’s interest. This time, the
loan officer and Jacqueline testified.
The loan officer remembered Husband and Wife wanted to
buy a house but did not qualify for a loan. He advised them to
find a relative who could apply for an FHA loan as a “non-
occupying co-borrower.” This would allow Husband and Wife to
occupy the house and would require them to pay the mortgage
directly. Jacqueline agreed to serve in this role. Husband and
Wife made the down payment and paid the mortgage going
forward. The loan officer understood Husband and Wife would
“own” the house. The only option was for Jacqueline to appear on
title alone because Husband lacked a social security number and
Wife had no income.
2 Support for this is a docket entry referencing a “complaint
for joinder” and statements made by the parties’ attorneys and
the court at the June 4, and July 9, 2024 hearings that Gutierrez
was joined to the case.
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Jacqueline testified she agreed to be on title because her
sister needed a house. She did not want Husband on title when
she transferred a 50 percent interest to Wife in 2011. She
believed he mistreated Wife and the marriage would not last.
She was sure someone explained or translated the interspousal
transfer grant deed to Husband because she “wanted to be sure
that he didn’t want anything with the property . . . .”
The family court found Jaqueline did not have an “actual
interest” in the house but deserved “some amount of
compensation” for “enabling the transaction to go forward and to
be maintained.” It granted the parties’ request for a three-week
stay to negotiate an agreed judgment. They did not reach an
agreement. The court filed findings and orders directing Wife to
buy out Husband’s community property share in the house. It
ordered $2,500 deducted from Husband’s proceeds to compensate
Jacqueline “for her assistance in facilitating the original
purchase of the home.” The court set Wife’s spousal support at $0
but reserved jurisdiction “with the understanding that [Wife] is
awarded the house, support from family, and the ability to rent
out the rooms in the home.” The parties did not request a
statement of decision.
DISCUSSION
Property Division
Wife contends the family court failed to apply the clear and
convincing evidence standard of proof when it found Husband
held a community property interest in the house. (See Evid.
Code, § 662 [clear and convincing proof required to overcome
presumption of ownership based on title].)3 She states the court
3 We assume for the sake of argument that Evidence Code
section 662 applies. (Cf. In re Marriage of Valli (2014) 58 Cal.4th
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disregarded Jacqueline’s presumptively valid 50 percent interest
because the equities favored Husband—not because Husband
made the required evidentiary showing.
The transcript of oral proceedings contains no discussion of
Husband’s burden of proof at the 2024 trial. The parties’ trial
briefs are not contained in the clerk’s transcript. They did not
request a statement of decision. We cannot determine from this
record whether Wife raised the purported error with the family
court. This issue is forfeited. “‘An appellate court will ordinarily
not consider procedural defects or erroneous rulings . . . where an
objection could have been but was not presented to the lower
court by some appropriate method.’” (Doers v. Golden Gate
Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1.) “‘[I]t is unfair
to the trial judge and to the adverse party to take advantage of
an error on appeal when it could easily have been corrected at the
trial.’ [Citation.]” (Ibid., italics omitted.)
We would affirm regardless. The clear and convincing
evidence standard requires the party with the burden of proof to
convince the trier of fact that it is “‘highly probable’” the facts
which he asserts are true. (Conservatorship of O.B. (2020) 9
Cal.5th 989, 998.) We review the record in a light most favorable
to the prevailing party giving “deference to how the trier of fact
may have evaluated the credibility of witnesses, resolved conflicts
in the evidence, and drawn reasonable inferences from the
evidence.” (Id. at pp. 1011-1012.) We uphold the finding if any
reasonable finder of fact could have found it highly probable the
fact was true. (Id. at p. 1011.)
1396, 1406 [“We need not and do not decide here whether
Evidence Code section 662’s form of title presumption ever
applies in marital dissolution proceedings.”].)
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The record supports the family court’s findings under
section 662’s heightened burden of proof that the house was
community property. (See Fam. Code, § 760 [“Except as
otherwise provided by statute, all property, real or personal,
wherever situated, acquired by a married person during the
marriage while domiciled in this state is community property.”])
Many important facts were not disputed. Husband and Wife
made the down payment on the house and paid property taxes
from community funds. They lived together in the house for a
decade. They paid the mortgage, found tenants, collected rent,
and maintained the house during this time. Jacqueline did not
live with them or contribute financially to the household prior to
Husband’s and Wife’s separation. In addition, their loan officer—
a disinterested witness—testified Jacqueline served as a “non-
occupying coborrower” whose credit allowed Husband and Wife to
achieve home ownership. He understood Husband and Wife
“were to be the owners of the home,” with Jacqueline appearing
on title only to facilitate the purchase. This testimony
corroborated Husband’s. Wife’s testimony contributed few
details. Jacqueline’s focused mostly on the reasons she disliked
Husband.
The court’s unstated, but implied conclusion was that Wife
and Husband possessed the beneficial interest in the house by
virtue of a resulting trust whereby Jacqueline held title merely as
a convenience.4 “When a transfer of real property is made to one
4 We review the trial court’s ruling, not its reasoning (J.B.
Aguerre, Inc. v. American Guarantee & Liability Ins. Co. (1997)
59 Cal.App.4th 6, 15) and will affirm on any theory established
by the record. (Day v. Alta Bates Medical Center (2002) 98
Cal.App.4th 243, 252, fn. 1.)
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person, and the consideration therefor is paid by or for another, a
trust is presumed to result in favor of the person by or for whom
such payment is made.” (In re Marriage of Ruelas (2007) 154
Cal.App.4th 339, 342, (Ruelas) disapproved on other grounds by
Conservatorship of O.B., supra, 9 Cal.5th at p. 1010.) A resulting
trust “‘arises by operation of law, without an expressed intent,
and . . . the resulting trustee ordinarily has no duty other than to
transfer the property to the person entitled.’” (Ibid.)
Wife next contends the court erred by refusing to recognize
the 2011 deed as a valid inter vivos gift of a 50 percent interest in
the house from Jacqueline to her. She argues this vested her
with a separate property interest in the house. (Evid. Code,
§ 770.) Any transfer of this interest to Husband, she reasons,
required a written transmutation. (Fam. Code, § 852, subd. (a)
[“A transmutation of real or personal property is not valid unless
made in writing by an express declaration that is made, joined in,
consented to, or accepted by the spouse whose interest in the
property is adversely affected”].) Our affirming of the family
court’s characterization of the house as a community asset moots
this contention. No written transmutation was required because
no transmutation occurred.
Lastly, Wife contends the court erred when it took judicial
notice of its prior finding “that it did appear that [Husband] was
not explained or necessarily even understood” the interspousal
transfer grant deed he signed in 2011. Wife did not object at the
time. The contention is forfeited, but, again, we would find any
error harmless. The court later permitted Wife’s counsel to
examine Jacqueline about the interspousal transfer deed and her
belief that Husband understood its legal effects. Wife’s counsel
highlighted this testimony during closing argument. Taking
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judicial notice of the prior finding does not appear to have
precluded or limited the court’s inquiry into the substantive
issues the parties sought to resolve.
Spousal Support
Wife contends the family court abused its discretion when
it set Husband’s spousal support obligation at $0. Her contention
is based on the court’s findings and orders after the 2024 trial,
which state in relevant part: “Spousal support shall be set at
$0.00 per month. The Court reserves jurisdiction on the issue of
spousal support with the understanding that [Wife] is awarded
the house, support from family, and the ability to rent out the
rooms in the home.” Wife argues the court made no findings
addressing the factors set forth in Family Code section 4320. She
describes the court’s decision as based instead on its
mischaracterizing the house as community property, speculating
about support she received from her family, and assuming she
would receive income in the form of rent.
The court reserved the issue of spousal support after the
2020 trial. Wife’s counsel briefly mentioned this on the second
day of the 2024 trial. The 2024 trial, however, appears to have
focused exclusively on Husband’s request for an order to divide
and sell the house. The subject of spousal support appears
nowhere else in the record of the 2024 proceedings. The clerk’s
transcript on appeal contains no trial briefs, requests for orders,
or objections related to support. The parties did not request a
statement of decision—or even an oral ruling— on the issue at
trial. We must apply the doctrine of implied findings and
presume the trial court made all factual findings necessary to
support the judgment. (Fladeboe v. American Isuzu Motors Inc.
(2007) 150 Cal.App.4th 42, 58.)
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DISPOSITION
Judgment is affirmed. Neither party shall recover costs
because respondent did not appear on appeal. (Cal. Rules of
Court, rule 8.278(a)(5).)
NOT TO BE PUBLISHED.
CODY, P. J.
We concur:
YEGAN, J.
BALTODANO, J.
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Jed Q. Beebe, Judge
Superior Court County of Santa Barbara
______________________________
Egan Law, M. Jude Egan, for Appellant.
No appearance for Respondent.
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