Shah v. Fidelity National Title Insurance Co. CA1/1 ( 2022 )

Filed 12/27/22 Shah v. Fidelity National Title Insurance Co. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION ONE
JAY C. SHAH, A165816
Plaintiff and Appellant,
(Santa Clara County
v. Super. Ct. No. 2011-1-CV- 203571)
FIDELITY NATIONAL TITLE
INSURANCE COMPANY, ORDER MODIFYING OPINION,
DENYING REHEARING, AND
Defendant and Respondent.
DENYING REQUESTS FOR
PUBLICATION
[NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on November 30, 2022, be
modified as follows:
1. On page 3, second full paragraph, delete the sentence that begins
“After the 2002 grant deed,” and replace it with the following sentence:
After the 2002 grant deed, several additional deeds were
recorded among Shah, his parents, and their respective
trusts between the years 2005 and 2010.
Existing footnote 3 remains after this revised sentence.
Appellant’s petition for rehearing is denied.
Respondent’s and California Land Title Association’s requests for
publication, filed on December 20, 2022, are denied.
There is no change in the judgment.
Dated:
____________________________
Humes, P.J.
2
Filed 11/30/22 Shah v. Fidelity National Title Insurance Co. CA1/1 (unmodified opinion)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION ONE
JAY C. SHAH,
Plaintiff and Appellant,
A165816
v.
FIDELITY NATIONAL TITLE (Santa Clara County
INSURANCE COMPANY, Super. Ct. No. 2011-1-CV-
203571)
Defendant and Respondent.
Plaintiff Jay Shah appeals from a judgment entered in favor of Fidelity
National Title Insurance Company after the trial court granted summary
judgment. Shah contends Fidelity failed to meet its burden to demonstrate
that coverage terminated under his title insurance policy based on his
voluntary conveyance of the subject property. He argues triable issues of fact
exist as to continuation of coverage because a grant deed given to his parents
as trustees of their trust was an equitable mortgage, not a conveyance, and
because he maintained an estate or interest in the property by his continued
possession of the property. Finding no merit to Shah’s contentions, we
affirm.
I. BACKGROUND
A. Facts1
1. Property Purchase and Title Insurance
In 1959, non-party Mary Silva acquired a life estate in the property
that is the subject of this action near Quimby Road in San Jose (the
property). In December 1995, Shah entered a contract to purchase the
property from Silva for $350,000. Silva transferred her interest in the
property via a grant deed to “Jay C. Shah, Living Trust Dated June 8, 1993,”2
(the Trust) as grantee. When he purchased the property, Shah did not know
that Silva held only a life estate.
Fidelity issued the title insurance policy in connection with Shah’s 1995
purchase. The title policy was a California Land Title Association Standard
Policy—1990 Form (CLTA 1990 Form) effective December 29, 1995. Schedule
A of the title policy listed the named insured as the Trust. The title policy
stated that the “estate or interest in the land described herein and which is
covered by this policy is: A Fee.”
As relevant to the issues on appeal, section 2(b) of the Conditions and
Stipulations, entitled, “After Conveyance of Title by an Insured,” states in
relevant part: “The coverage of this policy shall continue in force as of
[December 29, 1995] in favor of an insured only so long as the insured retains
an estate or interest in the land, or holds an indebtedness secured by a
purchase money mortgage given by a purchaser from the insured, or only so
1This is the second appeal in this matter. We recite only those facts
relevant to the issues in this appeal.
2 Many of the title descriptions used in this case are listed in all capital
letters. While we retain the exact text of the titles, for stylistic reasons we
change the capitalization of the descriptions.
2
long as the insured shall have liability by reason of covenants of warranty
made by the insured in any transfer or conveyance of the estate or interest.”
2. Subsequent Deeds
Silva died on May 4, 2002. Upon her death, title to the property passed
by operation of law to her heirs (the Silva heirs). The Silva heirs, however,
did not take possession of the property and Shah remained in possession. On
June 19, 2002, Shah, as trustee of the Trust, recorded a grant deed (2002
grant deed) in favor of his parents, “Chandrakant K. Shah and Mrudula C.
Shah, as Trustees of the Shah 1978 Revocable Trust, dated January 22, 1978”
(Parent Trust). In his first amended complaint (FAC), Shah alleges the 2002
grant deed was “made upon the mutual promises of the parties that the
parents would grant title back to Shah upon certain conditions according to
their oral agreement. This deed represented a mortgage rather than a sale or
gift. [Civ. Code, § 2924(a).]”
After the 2002 grant deed, there were nine additional recorded
transfers of the property among Shah, his parents, and their respective trusts
between the years 2005 and 2010.3
3. Foreclosure, Refinance, and Discovery of Silva’s Life Estate
In September 2007, Shah borrowed $350,000 against the property from
a private lender, Conquest, using a deed of trust as a security instrument.
Nine months later when the promissory note came due and Shah was unable
to pay the loan balance, Conquest recorded a notice of default and set the
trustee’s sale for February 2009.
3 Because they are not relevant to the resolution of this appeal, we do
not detail the transactions here, though they are described generally in the
prior nonpublished opinion. (Shah v. Fidelity National Title Ins. Co. (Sept.
19, 2016, H038521) [nonpub. opn.] (Shah I).)
3
Shah attempted to arrange a refinance transaction to avoid foreclosure.
In January 2009, however, the escrow title holder company discovered Silva’s
life estate while searching the public record, and alerted Shah. This was the
first time Shah learned of the defect in title to the property. Because Silva
had only a life estate in the property, she had transferred a life estate,
measured by her life (a life estate per autre vie), to Shah in 1995. When she
died in May 2002, title to the property transferred to her heirs by operation of
law, and Shah lost his interest in the property. Old Republic disclosed the
title defect in its preliminary report, told Shah and his loan broker about the
problem, and refused to issue title insurance to the proposed new lender. The
refinancing transaction was put on hold.
Conquest held a trustee’s sale on February 3, 2009, and the property
was sold to Bob and Judy Schwartz (the Schwartzes).
4. Shah’s Quiet Title Action
In March 2009, Shah filed suit against Silva’s heirs, the Schwartzes,
and Conquest to quiet title (the quiet title action). Plaintiff alleged adverse
possession against the Silva heirs based on open, notorious, continuous, and
hostile occupancy under color of title from 2002 forward.
On the same day he filed his quiet title action, Shah tendered a claim to
Fidelity, demanding coverage under the title policy to pay coverage benefits,
“including without limitation attorney fees and costs incurred . . . to date and
in the future in handling [the quiet title action].” Six months later, Fidelity
denied Shah’s claim.
In its letter denying coverage, Fidelity pointed to the condition found
in section 2(b) of the “Conditions and Stipulations” of the title policy
regarding continuation of coverage. Fidelity told Shah that the 2002 grant
deed to his parents as trustees of the Parent Trust terminated the title
4
insurance policy and cancelled coverage because it was a “voluntary
alienation of the property.” Fidelity wrote that because Shah was “no longer
the owner of an estate or interest” in the property, Fidelity had no
contractual obligation under the title policy.
Plaintiff eventually settled his lawsuit against the Silva heirs,
Conquest, and the Schwartzes, and in March 2010, the quiet title action was
dismissed. Shah incurred $135,000 of attorney fees, costs of suit, and
expenses in connection with the quiet title action.
5. Shah’s Continuous Occupancy of the Property
From December 1995 when Shah acquired his interest in the property
from Silva through March 2010 when he settled his quiet title action, a
period of more than 14 years, Shah was the only constant occupant of the
property. Shah claimed he “actually possessed and controlled the land” and
believed he was the “absolute and rightful sole legal owner of it.” Shah used
the property, maintained dirt roads and fixtures on it, repaired fences and
gates on it, rode his horses on it, and entered an agricultural lease to allow a
rancher to run livestock on his land, for which he collected rents for many
years. Shah did not surrender possession of the property to his parents in
connection with any of the deeds signed by him and he paid mortgage
installments owed to Silva and her estate after her death.
B. Procedure
In June 2011, Shah commenced this action against Fidelity for
damages. The operative FAC alleged two causes of action for breach of
contract (title policy) and breach of the implied covenant of good faith and
fair dealing. The trial court sustained Fidelity’s demurrer without leave to
amend. Shah appealed that decision and the Sixth District reversed in
Shah I.
5
On remand, the trial court overruled the demurrer. After the parties
engaged in discovery, Fidelity filed a motion for summary judgment. Shah
opposed the motion for summary judgment, and filed his own motion for
summary adjudication.
The trial court granted Fidelity’s motion for summary judgment and
determined Shah’s motion for summary adjudication was moot. The court
concluded that Fidelity met its burden to show coverage terminated under
section 2(b) of the title policy before Shah’s 2009 tender because Shah had
voluntarily transferred the property to his parents in 2002, and the transfer
became effective by operation of law in May 2007 when Shah obtained fee
title through adverse possession, under the after acquired title doctrine (Civ.
Code, § 1106). The trial court concluded Shah had failed to raise a triable
issue of material fact in opposition to the summary judgment motion.
The trial court also granted Fidelity’s motion for summary adjudication
on the cause of action for breach of the implied covenant of good faith and fair
dealing, and the claim for punitive damages under the genuine dispute
doctrine because there was no triable issue as to whether Fidelity’s denial of
the claim was unreasonable or without proper cause.
The court entered judgment in Fidelity’s favor. Shah timely appealed
to the Sixth District Court of Appeal. The appeal was subsequently
transferred to this District for resolution.
II. DISCUSSION
A. Standard of Review
Summary judgment is appropriate if there is no triable issue of
material fact and the moving party is entitled to judgment as a matter of law.
(Code Civ. Proc., § 437c, subd. (c).) “A defendant moving for summary
judgment has the initial burden of showing, with respect to each cause of
6
action set forth in the complaint, the cause of action is without merit. A
defendant meets that burden by showing one or more elements of the cause of
action cannot be established, or there is a complete defense thereto.
[Citation.] If the defendant makes such a showing, the burden shifts to the
plaintiff to produce evidence demonstrating the existence of a triable issue of
material fact.” (Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1101, citing
Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) If the plaintiff
fails to meet that burden, the motion will be granted. (Leyva, at p. 1102.)
“In determining whether a summary judgment motion was properly
granted, ‘we review the trial court’s decision de novo, applying the rule that
“[a] defendant is entitled to summary judgment if the record establishes as a
matter of law that none of the plaintiff’s asserted causes of action can
prevail.” ’ [Citation.]” (MacKinnon v. Truck Ins. Exchange (2003) 31 Cal.4th
635, 641.) Where the trial court’s ruling is based on interpretation of
insurance policy language, which is a question of law, our review of that
question is also de novo. (Ibid.; First American Title Ins. Co. v. XWarehouse
Lending Corp. (2009) 177 Cal.App.4th 106, 112–113.)
B. Termination of Coverage
Shah contends the trial court erred in granting summary judgment for
several reasons. First, Shah contends he could not transfer the property to
his parents as trustees of the Parent Trust via the 2002 grant deed because
he had only a life estate and the 2002 grant deed was a “wild deed” outside
the chain of title. Second, Shah asserts that the 2002 grant deed was a
mortgage, not a conveyance, and therefore he did not transfer the property.
Third, Shah asserts that he remained in possession of the property at all
relevant times, thus maintaining an “estate or interest” within the meaning
7
of the continuance of coverage provision in section 2(b) of the title policy. For
reasons we will explain, none of these contentions are availing.
1. Conveyance by After-acquired Title
Fidelity moved for summary judgment on the ground that Shah’s cause
of action for breach of the title insurance policy lacked merit because
coverage terminated when plaintiff voluntarily transferred the property to
his parents. Fidelity asserted that coverage under the title policy ended
when Shah obtained fee title by adverse possession of the property in May
2007. At that time, under the after-acquired title doctrine, his acquisition of
fee title transferred the property to his parents under the June 2002 grant
deed by operation of law pursuant to Civil Code section 1106.
In support of its motion, Fidelity produced the policy of title insurance
and the 2002 grant deed from Shah to his parents as trustees of the Parent
Trust. The title policy, a CLTA 1990 Form standard policy, defines “insured”
as “the insured named in Schedule A, . . . and those who succeed to the
interest of the named insured by operation of law as distinguished from
purchase including, but not limited to, heirs, distributes, devisees, survivors,
personal representatives, next of kin, or corporate or fiduciary successors.”
Schedule A of the policy lists the insured as “Jay C. Shah, Living Trust Dated
June 8, 1993.” Section 2(b) of the policy provides that the coverage of the
policy shall continue “so long as the insured retains an estate or interest in
the land.”
The 2002 grant deed, recorded on June 19, 2002, states that Shah, as
trustee of the Trust, “hereby grant(s)” the property to his parents as trustees
8
of the Parent Trust “for a valuable consideration, receipt of which is hereby
acknowledged.”4
Relying on this evidence and Kwok v. Transnation Title Ins. Co. (2009)
170 Cal.App.4th 1562 (Kwok), Fidelity argued that Shah voluntarily
transferred the interest he had in the property to his parents. In Kwok, a
husband and wife formed a limited liability company (LLC) and were its only
members. (Id. at p. 1565.) The LLC purchased real property and obtained a
CTLA standard form title insurance policy naming the LLC as insured.
(Ibid.) The LLC later transferred the property via grant deed to the Kwoks
as trustees of their revocable family trust and dissolved the LLC. When the
Kwoks sought coverage from the title insurance company in an easement
dispute with their neighbors, the company denied their claim on the ground
that the LLC’s voluntary transfer of the property to the Kwoks as trustees
terminated coverage under the policy. (Id. at p. 1566.) The trial court
rejected the Kwoks’ claim that they became insureds by operation of law
when they succeeded to the LLC’s interest, and the appellate court affirmed.
(Id. at pp. 1567, 1573.) As the court explained, “[t]he transfer of property by
an insured into a family trust is a voluntary act and not one that arises by
operation of law.” (Id. at p. 1571.) Because the LLC as the named insured
had transferred the property’s title to the nonmember trustees, coverage
under the title insurance policy terminated as a matter of law. (Ibid.)
Similarly, here, Fidelity offered evidence that Shah voluntarily transferred
what appeared to be fee title to his parents as trustees of the Parent Trust by
way of the 2002 grant deed.
4The trial court took judicial notice of the 2002 grand deed at Shah’s
request.
9
As both parties recognize, however, Shah was not able to transfer fee
title to his parents in June 2002 because at that time his life estate per autre
vie had terminated. In support of its summary judgment motion, Fidelity
argued that Shah obtained fee title to the property on May 4, 2007 by adverse
possession, at which time fee title passed by operation of law to his parents
under the after-acquired title doctrine. At that point, the voluntary
conveyance via the 2002 grant deed became effective by operation of law and
terminated his title coverage under section 2(b) of the title insurance policy.5
“Where a person purports by proper instrument to grant real property
in fee simple, and subsequently acquires any title, or claim of title thereto,
the same passes by operation of law to the grantee, or his successors.” (Civ.
Code, § 1106, italics added.) “It has long been recognized . . . that if a grantor
purports to convey an interest in land which the grantor does not own, but
afterwards acquires, the interest passes to the grantee at the time the
grantor obtains it. ‘The general rule is that if the grantor in a conveyance of
real property has no title, a defective title, or an estate less than which he
assumed to grant, but subsequently he acquires the title or estate he
purported to convey or perfects his title, the after-acquired or perfected title
will inure to the grantee or his successors by way of estoppel, i.e., the grantor
is estopped to deny the after-acquired title passed by his conveyance.’ ”
5 We observe that Shah’s title insurance coverage would not have ended
simply because his life estate per autre vie terminated and he no longer held
title to the property when Silva died. Such an interpretation would only
serve to invalidate the most serious of title claims—those involving a total
loss of title—and defeat the purpose of title insurance. (Ins. Code, § 12340.1
[title insurance insures policy holders against loss or damage arising from
defects in title to said property]; Quelimane Co., Inc. v. Stewart Title
Guaranty Co. (1998) 19 Cal.4th 26, 41 [title insurance “insures against losses
resulting from differences between the actual title and the record title as of
the date title is insured”].)
10
(Noronha v. Stewart (1988) 199 Cal.App.3d 485, 489.) “The net effect ‘is the
same as if the grantor specifically provided in the deed that it conveyed all of
the title and estate that the grantor then possessed or might at any time
thereafter acquire.’ ” (3 Miller & Starr, Cal. Real Estate (4th ed. 2022) After-
acquired Title, § 8:74, p. 8-250; see Noronha, at p. 489.)
Fidelity presented evidence that Shah acquired title to the property by
adverse possession on May 4, 2007. In support of this assertion, Fidelity
offered Shah’s verified complaint in the quiet title action, in which plaintiff
alleged he met all of the elements required for adverse possession and
obtained title to the property. Specifically, plaintiff stated under penalty of
perjury that “[f]or the requisite 5-year period plaintiff actually, notoriously,
exclusively, and openly possessed the real property under claim of right and
color of law. An inspection of the real property would convey notice of
plaintiff’s possession and use of the real property and would make it obvious
that plaintiff was at all relevant times the true owner. In addition, plaintiff
has paid all real property taxes assessed on the real property during the
adverse possession period. Due to the foregoing, plaintiff has obtained title to
the real property by adverse possession.” Fidelity also relied on allegations in
Shah’s FAC, discovery responses, and deposition testimony that Shah
remained in exclusive possession and control of the property from
December 29, 1995 through March 2, 2010, without limitation, that his
possession was hostile to the Silva heirs (the true owners), and that, among
other things, he controlled and limited access to the property, leased the land
to a cattle rancher, and used the property himself. (See, e.g., Dimmick v.
Dimmick (1962) 58 Cal.2d 417, 421 [elements of adverse possession are (1)
actual possession with reasonable notice to owner, (2) hostile to owner’s title,
11
(3) under claim of right or color of title, (4) for five years uninterrupted, and
(5) payment of property taxes].)
This evidence produced by Fidelity sufficed to meet its initial burden to
show that coverage under the policy terminated under the after-acquired title
doctrine when Shah obtained fee title by adverse possession in May 2007 and
the property transferred by operation of law under the 2002 grant deed.6 At
that point, it was incumbent on Shaw to demonstrate one or more triable
issues of material fact as to continuation of coverage.
In opposing summary judgment, Shah did not directly address the after
acquired title doctrine. On appeal, he contends it is not undisputed that he
obtained title by adverse possession in 2007. Rather, he argues Fidelity
cannot rely on his allegations in the quiet title action because no final
judgment was entered in that case. Shah asserts his mere allegations in the
quiet title action cannot be accepted as proof of his acquisition of title by
adverse possession under Code of Civil Procedure section 764.010.
We disagree. First, Shah’s citation to Code of Civil Procedure
section 764.0107 is unavailing because it states the requirements for
6 We emphasize that Shah’s title insurance coverage did not terminate
at the time he recorded the 2002 grant deed. We agree with Shah that
because his life estate per autre vie terminated when Silva died in May 2002,
he had no valid title, and thus, the deed was not effective to convey any
interest in the property at that point in time. However, when he obtained fee
title by adverse possession in May 2007, the 2002 conveyance became
effective automatically by operation of law under the after-acquired title
doctrine. Thus, his title insurance coverage terminated in May 2007.
7 Code of Civil Procedure section 764.010 provides: “The court shall
examine into and determine the plaintiff’s title against the claims of all the
defendants. The court shall not enter judgment by default but shall in all
cases require evidence of plaintiff’s title and hear such evidence as may be
offered respecting the claims of any of the defendants, other than claims the
12
obtaining a quiet title judgment, but a judgment is not required for
acquisition of fee title by adverse possession.8 “Fee simple title vests in the
adverse possessor by operation of law at the moment the requisite conditions
for adverse possession have been established for the statutory period.
[Citation.] The adverse possessor is not required to take any further steps to
acquire title once those conditions have been met.” (Marriage v. Keener
(1994) 26 Cal.App.4th 186, 191; see People ex rel. Harris v. Aguayo (2017)
11 Cal.App.5th 1150, 1166 [“Under the law of adverse possession, the
possessor need not bring an action to perfect his or her claim of title.”]; Civ.
Code, § 1007 [occupancy for statutory period confers a title by prescription].)
Shah attempts to distinguish Keener by noting the court in that case only
held the plaintiff’s lawsuit was not barred by laches at the demurrer stage,
but he fails to address the legal principle that an adverse possessor is not
required to file a lawsuit or obtain a judgment for fee title to vest by
operation of law.
Second, it is well established that allegations from a prior pleading can
be used as evidence to meet a moving party’s burden to demonstrate the
absence of a triable issue of material fact. (Magnolia Square Homeowners
Assn. v. Safeco Ins. Co. (1990) 221 Cal.App.3d 1049, 1061 [a pleading in a
prior civil proceeding may be offered as an evidentiary admission against the
pleader, even on behalf of a stranger to the prior action]; Mt. Hawley Ins. Co.
v. Lopez (2013) 215 Cal.App.4th 1385, 1425, fn. 21 (Mt. Hawley) [same].)
validity of which is admitted by the plaintiff in the complaint. The court
shall render judgment in accordance with the evidence and the law.”
8Indeed, a plaintiff may not initiate a quiet title action until he or she
has acquired prescriptive title. (Civ. Code, § 1006.)
13
Here, Shah did not present any evidence to contradict his prior claim
he acquired fee title in May 2007. (See, e.g., Mt. Hawley, supra,
215 Cal.App.4th at p. 1425, fn. 21 [admission from prior pleading may be
rebutted with explanatory evidence from the party against whom the
admission is offered].) Rather, Shah admitted in his opposition memorandum
of points and authorities in the trial court—and again in his opening brief on
appeal—that he continuously possessed and controlled the land under color of
title as required for adverse possession. Further, the evidence he presented
in opposition to summary judgment—that he was the sole occupant of the
property from 1995 through March 2, 2010, that he, “without exception,”
exclusively possessed and controlled the land and “believed [himself] to the be
absolute and rightful sole legal owner of it,” that he maintained the property
and excluded others, and that he leased the land to a rancher, serves only to
support the claim he acquired fee title by adverse possession.9 Because Shah
failed to present any evidence to controvert his claim he obtained fee title in
May 2007, he failed to demonstrate the existence of a triable issue of fact on
that point.10
9 In his opening brief on appeal, Shah further states that after Silva
died, “Shah occupied the 106 acres thereafter for almost seven years unaware
of a defect in the title under color of title arising from the recorded deed from
Silva . . . . [¶] Shah occupied the land hostile to the true owner. This is
known as adverse possession because it is against the rights of the real
owners. He also exercised his perceived, unchallenged right to rent out the
land against the exclusive rights held by the real owner to do so. He
controlled the land, he maintained it, and kept others away who had no
business there.”
10We likewise reject Shah’s argument that coverage did not terminate
under the after-acquired title doctrine with the 2002 grant deed because his
parents thereafter transferred title back to him and thus he succeeded his
parents in obtaining fee title to the property. The case Shah cites, Noronha
14
2. Equitable Mortgage
Shah next argues that the 2002 grant deed was not a grant deed,
despite its outward appearance as one, because he and his parents
understood it was a mortgage, not a conveyance of fee title.
Fidelity met its initial burden to show the 2002 grant deed transferred
Shah’s after-acquired fee title by operation of law. The 2002 grant deed
states simply that Shah, as trustee of the Trust, “hereby grants” the property
to his parents as trustees of the Parent Trust. This operative language is
typical of a fee simple grant deed. (Civ. Code, § 1105 [“A fee simple title is
presumed to be intended to pass by a grant of real property, unless it appears
from the grant that a lesser estate was intended.”].) In Schwen v. Kaye
(1984) 155 Cal.App.3d 949, 952, for example, the plaintiff was estopped to
deny she voluntarily transferred title under the after-acquired title doctrine
based on a grant deed delivered into escrow using similar language as the
2002 grant deed in this case. As the court in Schwen explained, “No
reservation of rights or other limiting language appeared in the deed. A fee
simple title is presumed to pass by a grant of real property, unless it appears
from the grant that a lesser estate was intended. (Civ. Code, § 1105; italics
added.) Grant deeds are to be interpreted like contracts (Civ. Code, § 1066.)
The essential element of a grant deed which unquestionably transfers an
after-acquired title is the word “ ‘grant.’ ”11 (Schwen, at p. 952; see Klamath
v. Stewart, supra, 199 Cal.App.3d at page 489, does not discuss such a rule.
In any event, the question under section 2(b) of the title policy is whether
Shah voluntarily conveyed his interest so as to terminate coverage, not who
ended up with title after multiple voluntary conveyances.
11We reject Shah’s argument that Fidelity failed to meet its initial
burden to prove the nonexistence of a material fact because Shah pled the
instrument was in fact a mortgage and Fidelity failed to address that
15
Land & Cattle Co. v. Roemer (1970) 12 Cal.App.3d 613, 618 [“A grant deed
unquestionably transfers an after-acquired title.”].)
Once Fidelity met its initial burden, the burden shifted to Shah to show
the existence of a triable issue of fact. Shah argues that the 2002 grant deed
did not convey a fee simple estate to his parents, but was a “mortgage” in the
unconventional form of a deed absolute. In support of the assertion, Shah
points to his own declaration and declarations by his parents, purporting to
confirm that his parents loaned him money and the grant deed was merely
security for the loan.
Shah’s evidence failed to raise a triable issue of material fact. It is
presumed that a deed absolute on its face conveys fee title to a grantee, but
the presumption is rebuttable. (Civ. Code, § 1105; Evid. Code, § 662.) A
party contending that a grant deed is in fact only a mortgage has the burden
of proof to establish the fact by clear and convincing evidence. (Evid. Code,
§ 662; Beeler v. American Trust Co. (1944) 24 Cal.2d 1, 7 (Beeler).) When a
fact must be proven at trial by clear and convincing evidence, a plaintiff
opposing summary judgment must produce evidence that could, if accepted
by a rational trier of fact, satisfy that standard of proof. (Reader’s Digest
Assn. v. Superior Court (1984) 37 Cal.3d 244, 252; Basich v. Allstate Ins. Co.
(2001) 87 Cal.App.4th 1112, 1118–1121.)
allegations in its motion. Fidelity’s presentation of the recorded grant deed
and legal argument that such transfers are presumed valid sufficed to meet
its initial burden to show a voluntary conveyance and shifted the burden to
Shah to demonstrate the existence of a triable issue of material fact as to
whether the 2002 grant deed was in fact a mortgage despite its appearance
as an absolute deed. (See Civ. Code, § 1105; Evid. Code, § 662 [“The owner of
the legal title to property is presumed to be the owner of the full beneficial
title. This presumption may be rebutted only by clear and convincing
proof.”]; Wehle v. Price (1927) 202 Cal. 394, 396–397.)
16
Here, the only evidence regarding the mutual intention of the parties to
treat the deed as a mortgage comes from Shah, who stated in his declaration:
“From my recollection I and my parents verbally agreed that this deed (and
the two others mentioned below to my parents) were subject to being reversed
on certain conditions of my performance and thus given only as security. [¶] I
treated this and other deeds mentioned below as a mortgage to secure debts
owed to my parents.” Shah’s parents, however, do not attest to such an
arrangement. Although the declaration of Shah’s parents states, among
other things, that they did not pay money to Shah to purchase the property,
there was no escrow or title insurance issued in connection with the deed,
and they did not take (or intend to take) possession of the property, nowhere
do they state that the 2002 grant deed was a mortgage or that they
understood it to be one.
The vague statement appearing only in Shah’s declaration as to a
verbal agreement with his parents that the deed was subject to being
reversed on certain conditions of his performance and his own treatment of
the deed as a mortgage “falls far short of those requirements necessary to
justify the overthrow of a deed absolute on its face, for the presumption is
that such a deed is what it purports to be, and the burden of proof is upon the
party claiming that it is only a mortgage. It must appear to the court beyond
all reasonable controversy that it was the intention of not only one but all of
the parties that the deed should be a mortgage. ‘A mere secret intention on
the part of one of the parties, not disclosed or communicated to the other, will
not have the effect of changing the character of the transaction.’ ” (Wehle v.
Price, supra, 202 Cal. at pp. 396–397; Develop-Amatic Engineering v.
Republic Mortgage Co. (1970) 12 Cal.App.3d 143, 148 [unilateral and
17
undisclosed intent of plaintiff to treat transaction as a mortgage could not be
used to belie the apparent status of the conveyance].)
Moreover, for an absolute deed to be construed as a mortgage, there
must be a relationship of debtor and creditor between the parties. (Beeler,
supra, 24 Cal.2d at p. 20; Shusett, Inc. v. Home Sav. & Loan Assn. (1964)
231 Cal.App.2d 146, 152 [in asserting absolute deed is mortgage, plaintiff
must allege creation of a debt or other obligation and that both parties
intended the deed be a mortgage to secure such debt or obligation].) But here
the only specific evidence in the record that Shah borrowed money from
parents shows that he asked to borrow money from them in December 2002,
over six months after the 2002 grant deed was recorded. Both Shah’s
declaration and the declaration from his parents indicate that Shah asked his
parents in December 2002 for almost $300,000 to pay off the balance of the
promissory note to Silva, which amount they gave him the same month.
Shah’s parents attested that “Before that payoff of that debt, we did not at
any time pay any of the monthly installment payments due on that debt. Our
payment on that obligation owed by our son Jay was limited to that one-time
payoff to the Silva Estate.” Shah’s vague statement in his own declaration
that he “treated [the 2002 grant deed] . . . as a mortgage to secure debts owed
to [his] parents” is insufficient to raise a triable issue that both Shah and his
parents intended the 2002 grant deed as a mortgage when the only evidence
in the record of a debt owed to his parents was the almost $300,000 Shah
borrowed from them more than six months after the 2002 grant deed was
recorded and no one attests the previously recorded 2002 grant deed secured
that debt.
18
3. Possession As an “Estate or Interest”
Shah also contends that he retained “an estate or interest” within the
meaning of the continuation of coverage policy term because it is undisputed
he retained a possessory interest in the property at all relevant times.
Relying on the definition of a “possessory estate” in Black’s dictionary, Shah
argues Fidelity was obligated to continue his coverage because he retained
such an interest in the property. Shah also argues that he had a legitimate
“interest” in the land because he had a right to receive income from his
agricultural lease for cattle grazing made with a rancher.
The express terms of the policy, however, dictate otherwise. “ ‘Our goal
in construing insurance contracts, as with contracts generally, is to give effect
to the parties’ mutual intentions. [Citations.] “If contractual language is
clear and explicit, it governs.” [Citations.] If the terms are ambiguous [i.e.,
susceptible of more than one reasonable interpretation], we interpret them to
protect “ ‘the objectively reasonable expectations of the insured.’ ” [Citation.]
Only if these rules do not resolve a claimed ambiguity do we resort to the rule
that ambiguities are to be resolved against the insurer. [Citations.]”
(Minkler v. Safeco Ins. Co. of America (2010) 49 Cal.4th 315, 321.) When
construing an insurance contract, as with any other contract, we consider the
whole of the contract together. (Civ. Code, § 1641 [“The whole of a contract is
to be taken together, so as to give effect to every part, if reasonably
practicable, each clause helping to interpret the other.”].) We will not find
contracts “to be ambiguous in the abstract” or “strain to create an ambiguity
where none exists.” (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1,
18–19.)
Section 2(b) of the title policy states that coverage continues in favor of
an insured “only so long as the Insured retains an estate or interest in the
19
land . . . .” When construing the policy as a whole, this language is not
ambiguous. Among other things, the policy insured “against loss or damage
. . . sustained or incurred by the insured by reason of: [¶] 1. Title to the estate
or interest described in Schedule A being vested other than as stated
therein.” Schedule A of the policy uses the same language to state: “The
estate or interest in the land described herein and which is covered by this
policy is: A Fee.” Thus, the express language of the policy indicates the
coverage provided is title protection, not occupancy or a right to collect rents
or profits. This language is consistent with the purpose of title insurance.
(See Siegel v. Fidelity Nat. Title Ins. Co., (1996) 46 Cal.App.4th 1181, 1191
[“ ‘A title policy is “. . . a contract to indemnify against loss caused by defects
in the title or encumbrances on the title” ’ ”].)
“We are not at liberty to rewrite the policy to achieve the result [Shah]
seek[s]. ‘ “[W]e do not rewrite any provision of any contract, [including an
insurance policy], for any purpose.” ’ ” (Kwok, supra, 170 Cal.App.4th at
p. 1571.) Under the express terms of the policy, coverage terminated when
Shah voluntarily conveyed the property and thereafter acquired fee title by
operation of law. (See Londen Land Co., LLC v. Title Resources Guar. Co.
(9th Cir. 2012) 467 Fed. Appx. 708, 709–710 [insured did not “retain an
estate or interest in the land” within meaning of continuation of coverage
provision when it conveyed land to LLC in fee simple because it “conveyed
the entirety of its estate or interest”].) Accordingly, Shah cannot demonstrate
the existence of a triable issue of fact regarding continuation of coverage
based on his possession and occupancy of the property or his collection of
rents.
For all of the reasons we have discussed, Fidelity met its initial burden
to demonstrate coverage under the title insurance policy terminated under
20
section 2(b) when Shah voluntarily transferred the property to his parents in
the 2002 grant deed and subsequently acquired fee title by adverse
possession in May 2007. Because Shah failed to present evidence raising a
triable issue of material fact, Fidelity was entitled to judgment as a matter of
law on Shah’s causes of action for breach of contract and breach of the
implied covenant of good faith and fair dealing. Accordingly, we do not reach
the parties’ arguments as to other possible grounds for summary judgment.
C. Request for Judicial Notice
Fidelity requested we take judicial notice of the docket in Shah v.
Schwartz (Super. Ct. Santa Clara County, No. 1-09-CV-136321), to support
its argument that Fidelity owed no duty to defend Shah in that case because
no party asserted a cause of action against him based on a matter insured
against under the policy or challenged his title to the subject property. We
deny the request as it is unnecessary to resolution of this appeal.
D. Civility
In concluding, we are obligated to admonish Shah’s counsel, Craig J.
Bassett, for making repeated, unfounded personal attacks on the trial court
and opposing counsel in his appellate papers, apparently because he
disagreed with the trial court’s decision. To illustrate, we will quote a few
excerpts from the opening and reply briefs.
About the court: “Thus far, the trial court has favored Fidelity because
that court does not understand, and refuses to learn, the principles of the law
applicable to the facts of this case. The lower court unlawfully sides with the
wrongdoer and throws Shah out the courtroom door, twice now!” “The lower
court wrests [the] holding [of Marriage v. Keener, supra, 26 Cal.App.4th 186],
misrepresents it, and misuses it to knowingly err to achieve a preconceived
outcome harmful to Shah. It wanted to vindicate the judge of the same court
21
who in error prejudicially sustained Fidelity’s demurrer to Shah’s FAC on the
same erroneous grounds, despite the successful appeal and reversal of that
decision.” “In rendering its decision on the MSJ [(motion for summary
judgment)], the lower court acted like a magical mystery trial had been held
without a jury while Shah was in absentia and that it was decided based on
one single document alone . . . .”
“The duplicity of the lower court, however, exposes its pervasive error.”
“The lower court’s short-sighted derogation of the policy of the law explained
above and its total disregard for the relevant statutes in order to achieve a
wrongful outcome to favor the title insurance industry and knowingly harm
the innocent insured, twice now, means that something is terribly wrong and
that the courts have lost their way.” “The lower court knowingly erred here
to protect itself rather than enforce the law as was its sworn duty.” The trial
court “refuses to get the facts straight, refuses to interpret the clause
properly, and refuses to follow the law.”
About defendant, and by implication, opposing counsel: “Because it
knows that it can with success, as this case proves, engage in bad faith
insurance tactics to seduce gullible courts who have little experience and no
training in such matters . . . .”12 “Is it not the goal here to consider and
discover the truth, the whole truth, and nothing but the truth drawing
inferences from and accepting evidence in the light most favorable to Shah?
Why would Fidelity think itself above this law? Because it believes it is a law
unto itself not subject to the law so that it can in bad faith seek exoneration
on spurious grounds when its liability is clear. The sophistry of Fidelity
cannot be passed off as truth in this proceeding.” “This court should respect
12 We note this comment is also (obviously) another insult directed at
the trial court.
22
and adopt [Shah’s] absolutely correct analysis, no matter what bag of tricks,
lies, and misdirection Fidelity throws at the Court at this juncture, which is
all that Fidelity has done judging by the content of its respondent’s brief.”
These quotes are a sampling of the numerous inappropriate arguments
scattered throughout counsel’s briefs. Perhaps not surprisingly, these
unhelpful remarks are unsupported by any evidence in the record. Such
bombastic, ad hominem attacks have no place in an appellate brief and are
potentially contemptuous and sanctionable behavior. “[A]n opening brief is
not an appropriate vehicle for an attorney to ‘vent his spleen’ . . . . This is
because, once the brief is filed, both the opponent and the state must expend
resources in defending against and processing the appeal. Thus, an
unsupported appellate tirade is more than just words on paper; it represents
a real cost to the opposing party and to the state.” (Pierotti v. Torian (2000)
81 Cal.App.4th 17, 32–33, fn. omitted [awarding sanctions for frivolous
arguments unsupported by the record made in an opening appellate brief].)
Further, “[d]isparaging the trial judge is a tactic that is not taken
lightly by a reviewing court. Counsel better make sure he or she has the
facts right before venturing into such dangerous territory because it is
contemptuous for an attorney to make the unsupported assertion that the
judge was ‘act[ing] out of bias toward a party.’ ” (In re S.C. (2006)
138 Cal.App.4th 396, 422.) We note counsel’s unwarranted attacks are
particularly hypocritical in that counsel makes reference multiple times to
overburdened and busy courts. Ironically, the extremely argumentative
nature of his two briefs on appeal makes it more time-consuming for this
court to sift through the unjustified personal attacks and hyperbolic rhetoric
to get to the legal issues that need to be resolved.
23
Counsel’s attacks also reflect poorly on the profession. Impugning the
character of opposing counsel is almost never appropriate, and in this case as
we have noted, the charges were particularly unfounded, given the level of
hypocrisy counsel demonstrated in making them. (See, e.g., In re S.C., supra,
138 Cal.App.4th at p. 412 [“unwarranted personal attacks on the character or
motives of the opposing party, counsel, or witnesses are inappropriate and
may constitute misconduct”]; Martinez v. Department of Transportation
(2015) 238 Cal.App.4th 559, 566 [“Attorneys are not to mount a personal
attack on the opposing party even by insinuation.”].)
It would be deeply disturbing if the lack of professionalism and respect
reflected in counsel’s conduct toward the court and opposing counsel were
common among members of the bar. Based on our experience, it is not. For
counsel’s benefit, however, we repeat the admonition of the Board of
Governors of the State Bar that “attorneys have an obligation to be
professional with . . . other parties and counsel, [and] the courts . . . . This
obligation includes civility, professional integrity, personal dignity, candor,
diligence, respect, courtesy, and cooperation, all of which are essential to the
fair administration of justice and conflict resolution.” (Cal. Atty. Guidelines
of Civility & Professionalism (July 20, 2007) Introduction., p. 3; id., § 4, p. 5
[“An attorney should not disparage the intelligence, integrity, ethics, morals
or behavior of the court or other counsel, parties or participants when those
characteristics are not at issue. [¶] . . . [¶] . . . An attorney should avoid
hostile, demeaning or humiliating words.”].) The kind of conduct displayed in
counsel’s appellate briefing “not only disserves the individual involved, it
demeans the profession as a whole and our system of justice.” (Id.,
Introduction, p. 3.) Rather, counsel must “strive for the highest standards of
attorney behavior to elevate and enhance our service to justice.” (Ibid.)
24
We strongly admonish plaintiff’s counsel to conduct himself in a more
professional manner when appearing before this or any other court, and note
that such conduct in a future case may subject him to sanctions much
harsher than this warning.
III. DISPOSITION
The judgment is affirmed. Fidelity shall recover its costs on appeal.
MARGULIES, J.
WE CONCUR:
HUMES, P. J.
BANKE, J.
A165816
Shah v. Fidelity National Title Insurance Company
25