Filed 7/12/13 Dudley v. Faustine
CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Nevada)
----
REBECCA DUDLEY,
Plaintiff and Appellant,
v.
WILLIAM P. FAUSTINE,
Individually and as Trustee, etc., et al.,
Defendants and Respondents.
C066469
(Super. Ct. No.
T09/3745C)
Plaintiff Rebecca Dudley sought to
recover possession of real property her deceased parents had jointly owned more
than 50 years ago. In her
father forged a quitclaim deed in 1960 to transfer title to himself in
violation of a divorce decree that had awarded the property to her mother, and
then in 1966 fraudulently sold the property as his separate property. She asserted that as the sole heir of her
mother, she was entitled to the property under the laws of intestate
succession.
The trial court sustained for a
second time a demurrer filed by the property’s current owners, defendants
William and Cathy Faustine, and it did so without granting leave to amend. Appearing before us pro per, plaintiff claims
the trial court erred in sustaining the demurrer. She asserts she pleaded sufficient facts to
state a cause of action and that her complaint is not time barred. She also claims the court committed various
procedural errors.
We disagree with plaintiff’s
contentions and affirm the trial court’s judgment. We conclude she is estopped from recovering
on her cause of action by laches.
FACTS
Because this is an appeal following
a successful demurrer, we accept as true all facts properly pleaded in
plaintiff’s complaint. We also
incorporate any facts of which we may take judicial notice. (Gu v.
BMW of North America
In 1959, plaintiff’s parents,
Robert and Genevieve Dudley, purchased real property in Truckee,
Nevada County, near Donner
Lake. The property has a cabin on it.
Genevieve later that year
petitioned for divorce. On October 9, 1959, the trial court
entered an interlocutory order dividing the couple’s property. Among other matters, the court awarded to
Genevieve the “cabin at Donner Lake.â€
However, by a deed dated and
recorded in 1960, Genevieve quitclaimed her interest in the property to
Robert. Later that same year, the trial
court entered the final judgment of divorce, and it incorporated the
interlocutory order into its judgment.
It made no modification for Genevieve’s transfer of the property to
Robert. A copy of the judgment was
recorded in Nevada County
in 1964.
Plaintiff alleges that despite the
quitclaim deed to Robert, Genevieve and Robert acted as if Genevieve still
owned the property. Genevieve continued
to pay taxes on the property after the quitclaim
deed was filed up until 1966. In a
1961 affidavit in support of a motion to modify the divorce decree, Robert
stated Genevieve had received “a cabin located at Donner
Lake and the equity was
approximately $3500.00.â€
In 1966, however, Robert conveyed
ownership of the property to Laurence and Ruth Cadwell. The grant deed documenting this transaction
stated Robert had held the property as his separate property.
In 2004, the Cadwells’ successors
in interest conveyed the property to defendants.
Genevieve died in 1979. Robert died in 2007. Plaintiff alleges she did not learn about the
property and its history until after her father’s death.
Plaintiff sought to obtain title to
the property. She filed her original
complaint on October 5, 2009. In that
complaint for declaratory relief,
plaintiff alleged the final divorce judgment confirmed ownership of the property
on Genevieve and superseded the quitclaim deed.
She sought a declaration that the property belonged to her as
Genevieve’s sole heir.
Before defendants filed a
responsive pleading, plaintiff filed her first amended complaint. In that complaint, plaintiff alleged causes
of action for fraud, cancellation of documents, quiet title, and declaratory
relief. She continued to assert the
final divorce judgment vested title in Genevieve, and she also alleged Robert’s
conveyance of the property in 1966 to the Cadwells was fraud. In addition, she alleged the existence of a
“transfer deed†that had conveyed title in the property from Robert back to
Genevieve. She sought the cancellation
of all documents on which defendants based their claim of title.
Defendants filed a demurrer. They argued the alleged facts demonstrated
they were bona fide purchasers who acquired the property without notice of any
interest in the property by Genevieve.
They claimed Genevieve could not have obtained title to the property under
the divorce judgment. The interlocutory
divorce order and the final divorce judgment could not convey title to
Genevieve by operation of law, and neither document satisfied the
written conveyance of property.
Defendants also claimed the complaint was barred by the applicable
statutes of limitations and laches.
The trial court sustained the
demurrer with leave to amend. It ruled
the divorce judgment did not convey title, and, in light of the quitclaim deed,
plaintiff could not state a claim to the property via Genevieve. Even if she could, any such claim would be
barred by the statute of limitations and laches. However, the court stated her claim regarding
the alleged deed that transferred title from Robert back to Genevieve lacked
specificity, and it granted leave to amend on that basis. To provide the needed specificity, the court
ordered plaintiff to attach to her new pleading a copy of the alleged
deed.
Plaintiff’s second amended
complaint continued to allege causes of action for fraud, quiet title,
cancellation of documents, and declaratory relief. Contrary to the trial court’s instruction,
however, plaintiff did not attach a copy of the deed she had claimed in her
first amended complaint transferred the property from Robert back to
Genevieve. Instead, she alleged that
while searching for documents, she saw on a computer screen in the Nevada
County Recorder’s Office an electronic copy of a warranty deed by which Robert
conveyed his interest in the property to Genevieve. This deed was allegedly dated later than the
quitclaim deed from Genevieve to Robert.
She allegedly saw this deed shortly before the recorder’s office closed
for the day. She did not provide any
other identifying information concerning this deed or allege that whatever she
saw had been officially recorded.
Also in her second amended
complaint, plaintiff raised a new factual allegation. She no longer asserted title to the property
passed to Genevieve through the divorce decrees. Instead, she asserted for the first time that
the 1960 quitclaim deed from Genevieve to Robert was a forgery, and that it
thus voided the chain of title derived from it.
To support her forgery allegation,
plaintiff hired Michael Nattenberg, allegedly “a person qualified as a[n]
examiner of questioned documents,†for an opinion on whether the quitclaim deed
was forged. Plaintiff attached as an
exhibit to her second amended complaint a letter from Nattenberg wherein he
summarized his review of the deed. He
wrote: “The Document in Question is of
such poor quality that no date or signature of the person on the deed can be
established. [¶] The document is nearly totally illegible and
therefore can have no standing as establishing any facts relating to the
property in question. [¶] It is a document with no legible
signature.â€
Defendants again filed a
demurrer. This time, the trial court
sustained defendants’ demurrer without leave to amend. It found the complaint was ambiguous,
unintelligible, filled with conclusions and legal arguments, and missing a
prayer for relief. In addition, the one
document necessary to support her claims, the alleged deed from Robert to
Genevieve, had not been attached as the court had directed. The court stated that document was necessary
because of the fact-based pleadings plaintiff used in her first amended
complaint.
The court also determined the
complaint failed to state sufficient facts for each cause of action. The Nattenberg letter failed to support
plaintiff’s claim of forgery, as it stated the quitclaim deed was so
unintelligible it had no standing to establish any facts regarding the
property. Plaintiff’s assertion that she
saw a deed transferring title from Robert back to Genevieve was not sufficient
to state a cause of action. Without a
copy of that deed, the court could assume only that the deed did not
exist.
The court also stated at
action for equitable relief were barred by laches. The failure of Genevieve to attempt to quiet
title while she lived, coupled with plaintiff’s attempt to do so more than 30
years after Genevieve’s death, constituted unjustifiable delay.
Plaintiff appeals. She asserts the trial court committed errors
by (1) instructing her at one point to retain an attorney; (2) not allowing her
to file an opposition to the demurrer to the second amended complaint; and (3)
requiring her to present evidence of the deed she alleged transferred title
from Robert to Genevieve. She also
claims the trial court abused its discretion in not granting her leave to amend
her complaint a third time.
DISCUSSION
I
Procedural Errors
Plaintiff asserts the court
committed various procedural errors. We
disagree with her contentions. We review
each alleged error separately.
A.
Plaintiff, who appeared in pro per
before the trial court, claims the court wrongfully directed her to hire an
attorney. The record, however, indicates
plaintiff understood at trial that the court had not required her to retain an
attorney, but instead had addressed her within the context of her ongoing
attempts to retain counsel when it made the contested remark. The court did not err.
After defendants filed their
demurrer to the second amended complaint, plaintiff requested an extension of
time to respond. Her request was based
in part on her inability to retain counsel.
The trial court granted the request, but in resetting the hearing on the
demurrer, the court informed plaintiff she was “to be here with a lawyer ready
to rock and roll†on the new hearing date.
The court’s minute order stated plaintiff was to “appear with an
attorney . . . .â€
At the beginning of the hearing on
the demurrer, however, the court (a different judge than the one who granted
the extension of time) clarified the prior judge’s direction that plaintiff
appear with an attorney. The court
stated it appeared to him the prior judge was not ordering plaintiff to appear
with counsel, but was instead encouraging her to retain counsel because that
was the ground on which it granted the extension. The court stated to plaintiff: “[W]e’re not in the business of forcing
people to get a lawyer if they choose not to.
I hope you understand that.â€
Plaintiff replied: “Yes, I
understand that.†Plaintiff continued to
represent herself without any objection by the trial court.
We agree with the trial court’s
interpretation of the record. Plaintiff
sought the extension of time because she had been unable to retain counsel and
was still attempting to do so. The court
thus was not requiring plaintiff to retain counsel, but instead was encouraging
her and the attorney she was seeking to find to be prepared for the next
hearing. The record indicates plaintiff
understood this was the trial court’s meaning.
In understanding the court’s meaning, she acknowledged the court was not
requiring her to retain counsel, nor was it precluding her from representing herself. The trial court committed no error on this
point.
B.
opposition
Plaintiff claims the court erred in
not considering her opposition to the demurrer.
We disagree, as the opposition was filed late.
Upon plaintiff’s request for an
extension of time, the court continued the hearing on the demurrer to August
16, 2010. On August 5, 2010, defendants
notified the court that they had received no opposition to their demurrer. Plaintiff contends she attempted to file an opposition
on August 12, 2010, by fax. The record
includes no opposition by plaintiff.
At the hearing on the demurrer, the
court as a preliminary matter noted that plaintiff on August 12, 2010, had
attempted to file a motion to strike the demurrer. The court stated the motion was not timely
filed and it would not consider it.
Plaintiff contends the court erred,
but she is incorrect. Opposition papers
are to be filed no later than nine court days before the scheduled
hearing. (Code of Civ. Proc., § 1005, subd. (b).) In plaintiff’s case, her opposition papers
were due August 3, 2010. Her attempt to
file them on August 12 was obviously tardy.
A court has discretion to refuse to
consider papers filed late. (Cal. Rules
of Court, rule 3.1300(d).) The court
here did not abuse its discretion in refusing to consider plaintiff’s motion to
strike. She had been given extended time
to file her opposition, and her attempt to file a motion to strike the demurrer
two court days before the hearing would not have given the court and defendants
sufficient time to consider it.
C.
complaint
Plaintiff argues the trial court
erred in requiring her to attach to her second amended complaint a copy of the
deed she alleged transferred title from Robert back to Genevieve. She claims the court should have taken as
true her allegation of the deed’s existence for purposes of the demurrer. Under the circumstances of plaintiff’s
complaint, the court did not err.
Without a copy of the recorded deed, or at least sufficient information
by which defendants could locate the deed, the amended complaint failed to give
defendants sufficient notice of the cause of action against them.
“The essence of the matter is
fairness in pleading to give the defendant such notice by the complaint that he
may prepare his case.†(
Cal.2d 605, 619.) “The Supreme Court has
consistently stated the guideline that ‘a plaintiff is required only to set forth the
essential facts of his case with reasonable precision and with particularity
sufficient to acquaint a defendant with the nature, source and extent of his
cause of action.’ (Youngman v.
Nevada Irrigation Dist.[ (1969)
70 Cal.2d 240,] 245; Smith v. Kern County Land Co.[ (1958) 51 Cal.2d 205,] 209.) It has also been stated that ‘[the]
particularity required in pleading facts depends on the extent to which the
defendant in fairness needs detailed information that can be conveniently
provided by the plaintiff; less particularity is required where the defendant
may be assumed to have knowledge of the facts equal to that possessed by the
plaintiff.’ (Jackson v.
Pasadena City School Dist.[ (1963)] 59 Cal.2d 876, 879; Burks v.
Poppy Construction Co.[ (1962)] 57 Cal.2d 463, 474.)†(Semole
v. Sansoucie (1972) 28 Cal.App.3d 714, 719.)
At the time the trial court imposed
the requirement to attach the alleged transfer deed, plaintiff had not yet
pleaded the 1960 grant deed was a forgery.
Instead, she had claimed title to the property had transferred back to
Genevieve by means of the divorce judgment and the alleged transfer deed. The trial court correctly stated the divorce
judgment did not convey title, and thus, in light of the quitclaim deed from
Genevieve, plaintiff could not claim an interest in the property except by the
alleged transfer deed she claimed existed.
Simply asserting, as plaintiff did
in her first amended complaint, that
Robert had transferred the property back to Genevieve by the transfer deed did
not sufficiently plead the elements of her causes of action or provide
defendants with the information they needed to defend against her claims. She did not allege defendants had notice of
the conveyance, nor did her allegation give them sufficient information by
which they could understand the claim, find the conveyance, and prepare a
defense. The trial court correctly
concluded the bare allegation of a reconveyance lacked specificity.
By directing plaintiff to attach a
copy of a recorded deed, the court was instructing plaintiff how she could
satisfy her pleading burden. She could
have satisfied the burden by providing enough information about the deed so
that defendants could have identified and found it. The trial court recognized the easiest way of
doing this, however, was by attaching a copy of the alleged deed, a deed
plaintiff claimed she had seen.
Plaintiff had already attached every other relevant conveyance and
document to her complaints. The court
did not abuse its discretion by asking plaintiff to attach the one additional
document that mattered most.
II
Decision Denying Leave to Amend
Plaintiff claims she pleaded
sufficient facts to state a cause of action and to overcome any statute of
limitations or laches defense. Because
we and the trial court have concluded she cannot state a claim of title in the
property based on the divorce judgment or any purported transfer deed, her
complaint lives or dies based on the validity of her forgery claim.
A bona fide purchaser of real
property generally takes the property free of any unknown rights in the
property held by others. (
Cal.App.3d 447, 451.) However, “a forged
deed is a nullity, even as to bona fide
purchasers . . . .â€
(Estates of Collins & Flowers
(2012) 205 Cal.App.4th 1238, 1247.)
Thus, if plaintiff can successfully allege an interest in the land based
on the 1960 quitclaim deed being a forgery, her complaint would survive a
demurrer.
Defendants argue plaintiff cannot
base her claim on forgery as a matter of law and that we should uphold the
trial court’s sustaining of their demurrer without leave to amend. They contend (1) plaintiff is equitably
estopped from attacking the quitclaim deed based on laches; (2) her claims are
barred by the statute of limitations; and (3) she is prevented from attacking
the quitclaim deed because her forgery allegations are inconsistent with the
allegations in her previous complaints.
We conclude this is the rare case
where laches can be determined on the pleadings alone, and we affirm the trial
court’s action on that basis.
The affirmative defense of laches
may estop a party from attacking a forged instrument. (See Merry
v. Garibaldi (1941) 48 Cal.App.2d 397, 401.) Laches is ordinarily a question of fact. (Lasko
v. Valley Presbyterian Hospital (1986) 180 Cal.App.3d 519, 527.) However, the defense may be raised by
demurrer, “but only if the complaint shows on its face unreasonable delay
(Conti v. Board of Civil Service
Commissioners (1969) 1 Cal.3d 351, 362, original italics.)
Plaintiff’s second amended
complaint pleads sufficiently detailed facts from which we can determine as a
matter of law her cause is barred by laches.
First, the second amended complaint shows on its face unreasonable
delay. Although plaintiff herself acted
without delay upon discovering the property after her father’s death, she as a
successor in interest to her mother’s claim is held responsible for the delay
of her predecessor, namely, her mother Genevieve. (See N.
Hollywood M. Co. v. N. Amer. B. etc. Co. (1934) 137 Cal.App. 180, 187.)
As shown by plaintiff’s
allegations, Genevieve unreasonably delayed bringing an action to enforce her
alleged interest in the property. The
complaint alleges facts that show Genevieve knew by 1966 the property had been
transferred, but yet she took no action to regain her interest in it for the
rest of her life, a period of 13 years.
According to the complaint, Genevieve stopped paying property taxes on
the property in 1966, the same year Robert transferred the property to the
Cadwells. Her decision not to pay taxes
on the property after 1966 indicates she was aware the property had been
transferred and she was no longer responsible for paying property tax. At that point, Genevieve knew or should have
known she no longer held an interest in the property, and if she believed she
had been deprived of her interest wrongfully, she needed to act to protect
it. Her refusal to act for the 13 years
of her remaining life was unreasonable under these circumstances.
Second, the second amended
complaint shows on its face that defendants will be prejudiced if plaintiff is
not estopped from prosecuting the action.
Where “an action is commenced many years after its accrual, the death of witnesses or destruction of
evidence, presumed as well as actual, may prejudice the defendant and justify
denial of relief because of staleness of the claim. [Citations.]â€
(Maguire v. Hibernia S. & L.
Soc. (1944) 23 Cal.2d 719, 736, original italics.) Such is the case here. The only two witnesses who could testify
concerning the 1960 quitclaim deed, Genevieve and Robert, are deceased. In addition, plaintiff submitted evidence by
a forensic document examiner who stated, in effect, that the handwriting on the
quitclaim deed was so illegible it was impossible to determine whether the deed
was in fact a forgery.
Thus, based on the facts and
evidence pleaded by plaintiff, there is no possibility she can establish the
1960 quitclaim deed is a forgery. Under
these circumstances, allowing the action to proceed against defendants would
work a great prejudice to them. For this
reason, we conclude the trial court correctly denied plaintiff a third
opportunity to file an amended complaint and sustained the demurrer without
leave to amend.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to
defendants. (Cal. Rules of Court, rule
8.278(a).)
NICHOLSON , Acting P. J.
We concur:
BUTZ , J.
MAURO , J.
