Lee v. An CA2/8 ( 2022 )

Filed 8/25/22 Lee v. An CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
CONNIE E. LEE et al., B306023
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. BC665476)
v.
MYUNG SON AN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Christopher K. Lui, Judge. Affirmed.
Lagasse Branch Bell + Kinkead, and Christopher C. Cianci,
for Plaintiffs and Respondents.
Law Offices of Jaenam Coe, Jaenam Coe; Kasai Law Group,
Wayne T. Kasai and Kristin E. Reynolds for Defendant and
Appellant.
__________________________
INTRODUCTION
We are called upon to decide whether fewer than all of a
decedent’s heirs have standing to seek, pursuant to section 3412
of the Civil Code, cancellation of a real property deed made by the
decedent prior to his death. Based on the arguments and
authorities presented to us, we conclude that they do. We further
conclude that substantial evidence supports the trial court’s
determination that the deed at issue was procured by undue
influence, thus warranting cancellation. We therefore affirm the
trial court’s judgment.
BACKGROUND
I. Factual Background1
When Pok S. Pak (Pak) died in 2017,2 he was survived by
four adult children. Plaintiffs are three of those children. The
fourth is not a participant in these proceedings. Pak’s children
all share the same mother, to whom Pak was married until her
death in 1991.
1 Because the facts relevant to An’s appeal are narrow and
undisputed, we rely primarily on the trial court’s recitation of the
facts in its statement of decision. (Granowitz v. Redlands Unified
School Dist. (2003) 105 Cal.App.4th 349, 352 [relying on
statement of decision where facts are undisputed].) In
considering whether substantial evidence supports the judgment,
we recite record facts in the light most favorable to the Plaintiffs
as respondents. (Williamson v. Brooks (2017) 7 Cal.App.5th
1294, 1299.)
2 The parties do not specify Pak’s exact age at death, but one
of his daughters, who was born in or about 1964, described him
as being “of old age.”
2
Pak and his wife bought property in Downey, improved by
a house, in 1980. They raised their children there and lived there
together until the time of the wife’s death. Sometime after his
wife’s death, title to the property was changed to reflect Pak’s
sole ownership. Pak continued to occupy the house until the time
of his death.
Defendant Myung Son An is the daughter of Kyung Ja Um.
Pak and Um were romantic partners who began cohabitating in
the Downey house in 1999 but were never legally married.
Notwithstanding An’s references to Pak as “father” and “dad”
at trial, Pak was not An’s father. Pak and Um’s relationship
eventually soured and Pak “kicked [Um] out” of the house in
April of 2017, about a month before his death.
Pak did not like An. This is because, as one Plaintiff
testified, Pak thought An mistreated her mother. Inexplicably,
Pak nonetheless hired An as his In-Home Supportive Services
(IHSS) provider in 2012, and later hired An’s husband for the
same role in 2017. However, the record does not establish that
Pak had much say in the matter. Though An testified that Pak
“wanted [them] to do it,” An and her husband were the ones that
registered Pak for IHSS. Once registered, An provided no
services to Pak, despite receiving government payments to do so.
An never told Plaintiffs she or her husband were Pak’s caregiver
and Plaintiffs saw no evidence that Pak was ever receiving in-
home care from anyone but Plaintiffs. Indeed, whenever
Plaintiffs visited, they found the house dirty and had to clean it.
The trial court found that An’s “IHSS caregiver role was
undertaken on a pretextual basis to ingratiate herself with [Pak]
and to gain additional influence over his affairs.” Most
3
significantly for our purposes, An used this influence to cause
Pak to transfer legal title of the Downey property to her.
In October 2016, An had an escrow company prepare a
quitclaim deed granting her the Downey property and drove Pak
to a notary where he signed the document. Despite Pak being
able to read only Korean, the deed was in English and An did not
prepare a Korean translation. Despite the property having
considerable equity value, An gave Pak nothing in exchange for
it. Despite the significance of the transaction, An could not recall
having discussed it with Um beforehand and never told Plaintiffs
about it. Plaintiffs learned about the deed three days after Pak’s
death when An changed the locks on the house and a helpful
tenant, who happened to have some legal experience, ran a title
search.
About two weeks after Pak’s death, An listed the property
for sale through a real estate agent. In response, Plaintiffs
recorded a lis pendens. The property was thereafter delisted.
II. Procedural Background
Plaintiffs’ verified complaint contained four counts:
(1) declaratory relief; (2) cancellation of instruments; (3) quiet
title; and (4) preliminary and permanent injunction. By the
declaratory relief count, Plaintiffs sought a declaration that the
deed to An was void or voidable and that title to the house should
be with Plaintiffs as joint tenants. By the cancellation of
instruments count, they sought cancellation of the deed pursuant
to Civil Code section 3412. By the quiet title count, they sought a
declaration that title to the house was jointly held by Plaintiffs to
the exclusion of any interest of An. By the injunction count
Plaintiffs sought to prevent An from interfering with their rights
to the house.
4
Immediately before trial, An’s counsel orally raised two
issues he contended entitled An to judgment. First, he argued
that Plaintiffs should have commenced a probate action and then
brought their complaint on behalf of Pak’s estate. Second, he
claimed that the absence of Plaintiffs’ other sibling, Pak’s fourth
child, rendered relief impossible. He noted that Civil Procedure
Code section 762.060, which applies to quiet title actions,
requires all known holders of adverse interests to be named as
defendants and that granting the relief would serve to deprive
the absent sibling of his interest in the house. He did not raise
standing under Code of Civil Procedure section 377.11. Plaintiffs’
counsel responded that none of An’s arguments affected the
cancellation count and conceded that, if the deed was cancelled,
further proceedings in probate would be appropriate.
After a bench trial, the trial court entered judgment for
Plaintiffs on their cancellation count and for An on the other
three counts and issued a written statement of decision
explaining its ruling. We are directed to no specific resolution in
the record of An’s pretrial oral objections but the statement of
decision reflects that the trial court considered them in rendering
judgment.
As to Plaintiffs’ cancellation count, the trial court found
that the deed was procured through An’s undue influence.
It found that An had entered into a confidential relationship with
Pak by becoming his IHSS caregiver and that she had exploited
that relationship by secretly undertaking to cause Pak to transfer
the house to her.
As to Plaintiffs’ declaratory judgment count, the trial court
stated that the request was inappropriate given the absence of
the fourth sibling: “a declaration resting title in Plaintiffs as
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joint tenants . . . would be substantively inappropriate.
The evidence at trial indicated that the fourth child of [Pak] is
alive, apparently lacks capacity to participate in the litigation,
and is not represented in this case by a guardian ad litem.
A declaratory judgment that excluded Plaintiffs’ remaining
sibling would be inequitable.”
As to quiet title, the trial court concluded that Plaintiffs
had alleged only an equitable interest and not a legal interest in
the property. As such, their claim against An, the holder of the
legal interest, failed as a matter of law. (Citing Stafford v.
Ballinger (1962) 199 Cal.App.2d 289, 294–295.)
Finally, the trial court declined to issue any injunction
protecting Plaintiffs’ claimed ownership in the house because it
had declined to award Plaintiffs legal title to the house: “legal
title to the Subject Property is uncertain and will likely require
further proceeding in Probate Court. Under such circumstances,
it would be inappropriate for the Court to issue injunctive relief
in favor of plaintiffs.” An appealed.3
3 We note that An’s statement of appealability, required by
rule 8.204(a)(2)(B), is wanting. She recites only that “[t]his is an
appeal of a judgment entered in the Superior Court for the
County of Los Angeles on February 26, 2020” and that “Code of
Civil Procedure section 904.1 authorizes this appeal.” An filed
her notice of appeal on May 18, 2020, 80 days after service of the
notice of entry of judgment. Under rule 8.104(a)(1)(A), an
appellant ordinarily must file its notice of appeal within 60 days
after service of the notice of entry of judgment. This time may be
extended where, as we glean from the record occurred here, the
appellant files and serves a valid notice of intention to move for a
new trial. (Cal. Rules Ct., rule 8.108(b).) As timeliness is
6
DISCUSSION
The parties’ briefing in this appeal is lacking in many
respects, adding needless difficulty to our review. An’s opening
brief raises only one issue: whether Plaintiffs had standing to
pursue the cancellation cause of action where they comprised less
than all of Pak’s surviving children. Plaintiffs’ responding brief
calls this issue a “red herring,” gives it correspondingly limited
attention, and then launches into a full-throated argument that
substantial evidence supports the trial court’s determination that
the deed was void or voidable, even though An never argued
otherwise in her opening brief. In reply, An claims Plaintiffs
“concede[d]” the trial court was wrong in allowing them to
prosecute the cancellation claim given defects in standing, and
then proceeds to argue the merits of the judgment on various new
grounds. She only obliquely responds to Plaintiffs’ substantial
evidence arguments.4
In short, the parties largely talk past one another in their
briefs and fail to confine themselves to the issues raised in the
opening brief in accordance with regular appellate practice.
This leaves us to sort out those issues appropriate for our
consideration and determine them without the benefit of robust
rebuttal in the parties’ briefing.
essential to our appellate jurisdiction, An should have
demonstrated the timeliness of her appeal as part of her
statement of appealability rather than leaving it to the court to
figure out from the record.
4 Indeed, An’s reply brief does not so much as mention the
“substantial evidence” standard of review.
7
I. Issues Subject to Review
We ordinarily review only those issues raised by the
appellant in its opening brief. (Foxen v. Carpenter (2016)
6 Cal.App.5th 284, 293 [review ordinarily limited to issues which
have been adequately raised and supported in the appellant’s
opening brief].) We have discretion to consider issues raised in
the reply brief that do no more than “elaborate on issues raised in
the opening brief or rebut arguments made by the respondent in
respondent’s brief.” (American Indian Model Schools v. Oakland
Unified School Dist. (2014) 227 Cal.App.4th 258, 276 (American
Indian).)
Here, we will consider only (i) the standing issue raised in
An’s opening brief; and (ii) the sufficiency of evidence argued in
Plaintiffs’ responding brief, because some of An’s reply
arguments may be characterized as responsive to Plaintiffs’
arguments. As to An’s other arguments raised for the first time
in her reply brief, we decline to consider them. (American
Indian, supra, 227 Cal.App.4th at p. 276.) Specifically, we do not
consider An’s arguments that the trial court needed to establish
what Pak’s intent was or would have been but for An’s undue
influence, or that the court overlooked evidentiary presumptions
mandated by the Evidence Code. These are issues that An did
not raise in her opening brief and that Plaintiffs did not address
in their respondents’ brief.
An implies, without citation, that we should consider these
arguments under the issue elaboration exception noted in
American Indian. She claims that her standing argument in her
opening brief “also brings forth the logical flaw in the trial court’s
ruling that are irreconcilable regarding the true testamentary
intent of the grantor, the decedent, as the claim that the deed
8
was presumably executed against his will is being made by third
parties.” [Sic.] We disagree that An’s standing issue in her
opening brief somehow embraces her reply argument that the
trial court needed to, but could not find, Pak’s true intent with
respect to the transfer of his property. An’s reply argument is a
merits argument wholly separate from the narrow question of
standing.
Though An does not contend otherwise, we also find that
her new reply arguments are not responsive to Plaintiffs’ merits
arguments in their responding brief. Plaintiffs’ merits
arguments are limited to marshalling evidence that supports a
finding of undue influence as sufficient to render the deed
voidable, justifying its cancellation. Plaintiffs did not undertake
to demonstrate substantial evidence of Pak’s actual intent with
respect to the deed, or what that intent would have been but for
An’s influence. They had no reason to as An’s legal argument
that such evidence was necessary to support a finding of undue
influence was not made in her opening brief.
Moreover, An fails to provide any cogent argument or
authority—whether under the common law, Civil Code
section 1575, Welfare and Institutions Code section 15610.70, or
otherwise—that a plaintiff must prove what an inter vivos
grantor’s intent would have been but for the undue influence.5
5 An says only, without citation to authority, that “[t]he
determination of undue influence necessarily includes a premise[]
that the deceased did not intend to, or would not have wanted to
sign the deed but for the undue influence.” Be that as it may,
statutory articulations of undue influence do not require a
plaintiff to show prior intent contrary to that manifested in the
9
Thus, not only is the argument untimely raised but it is
insufficiently raised. “We may and do ‘disregard conclusory
arguments that are not supported by pertinent legal authority or
fail to disclose the reasoning by which the appellant reached the
conclusions he wants us to adopt.’ ” (United Grand Corp. v.
Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153 (Malibu
Hillbillies).)
An’s related reply arguments about presumptions under
the Evidence Code are likewise new, such that considering them
would unfairly deprive Plaintiffs of the opportunity to raise
opposing arguments. (Malibu Hillbillies, supra, 36 Cal.App.5th
at p. 153.)
II. The Trial Court’s Undue Influence Finding Was
Supported by Substantial Evidence
Under the same heading as her intent and Evidence Code
arguments, An argues that “[t]he reasons as cited by the trial
court as the basis for finding undue influence are also insufficient
and inadequate to find that the trial court exercised its
reasonable discretions.” We interpret this as a response to
Plaintiffs’ substantial evidence argument, exercise our discretion
to consider it, and reject it.
subject act; they require only evidence from which the factfinder
could conclude that the act was a result of overreach on the part
of the defendant sufficient to create the inference that the act
was not a product of free will. (See, e.g., Civil Code, § 1575 [no
reference to prior intent]; Welf. & Inst. Code, § 15610.70, subd.
(a)(4) [“Evidence of the equity of the result may include, but is not
limited to . . . any divergence from the victim’s prior intent . . . .”]
[italics added].)
10
In reviewing a finding of undue influence, we consider
“whether from the totality of the facts and circumstances, the . . .
finding . . . is supported by substantial evidence.” (Gomez v.
Smith (2020) 54 Cal.App.5th 1016, 1033 (Gomez).) In conducting
our review, we do not review individual pieces of evidence
discussed by the trial court in isolation and we do not reweigh the
evidence. (Id. at pp. 1027, 1033.) Where, as here, a statement of
decision sets forth the basis for the decision, “ ‘ “ ‘any conflict in
the evidence or reasonable inferences to be drawn from the facts
will be resolved in support of the determination of the trial court
decision.’ ” ’ ” (Id. at p. 1027.)
Despite claiming that the trial court improperly found
undue influence, An does not articulate or propose a standard for
undue influence. She asserts that “Welfare and Institutions Code
Section 15610.70 [w]as the basis for [the court’s] ruling,” but this
is incorrect.6 The trial court found that An’s conduct amounted to
undue influence under a common law analysis, but, because An
objected to the trial court’s proposed statement of decision for
failure to apply section 15610.70, the trial court conducted a
6 An also pleads confusion about how the undue influence
resulted in the cancellation of her deed. She says “[t]he original
complaint invokes Civil Code § 3412 as its basis for seeking the
relief under the second cause to cancel the deed. However, the
decision states that the deed should be cancelled because it was
obtained by fraud, duress and undue influence . . . .” Civil Code
section 3412 allows for the cancellation of instruments that are
“void or voidable.” Deeds procured by undue influence are
voidable. (Fallon v. Triangle Management Services, Inc. (1985)
169 Cal.App.3d 1103, 1106.) The trial court found that the deed
from Pak to An was procured through undue influence.
11
section 15610.70 analysis in the alternative. It found undue
influence under that standard as well. Because An urged
application of section 15610.70 in the trial court, we consider
whether substantial evidence supports the trial court’s conclusion
that it was satisfied. It does.
Welfare and Institutions Code section 15610.70,
subdivision (a), defines undue influence as “excessive persuasion
that causes another person to act or refrain from acting by
overcoming that person’s free will and results in inequity.”
It directs that, in determining whether a result was produced by
undue influence, each of the following categories be considered:
“(1) The vulnerability of the victim. . . . [¶] (2) The influencer’s
apparent authority. . . . [¶] (3) The actions or tactics used by the
influencer. . . . [¶] (4) The equity of the result. . . .” (Ibid.) As to
each category, the statute lists non-exclusive examples of
evidence that may be considered.
Here, substantial evidence exists with respect to each
category. First, there was ample evidence of Pak’s vulnerability
and that An knew of it. (See Welf. & Inst. Code, § 15610.70,
subd. (a)(1).) An registered Pak in IHSS, which implies a need
for caretaking services (even though An failed to provide them).
Pak also lacked command of the English language and the
capacity to understand legal documents. Moreover, Pak’s son
testified that Pak’s mental capacity had declined in old age.7
7 We decline to consider An’s untimely assertion, made for
the first time on reply, that Plaintiffs needed an expert to
establish Pak’s mental capacity at the time he signed the deed.
12
Second, there was ample evidence of An’s apparent
authority. She had variously been Pak’s caretaker, the spouse of
Pak’s caretaker, and presented herself as a family member at
trial. (See Welf. & Inst. Code, § 15610.70, subd. (a)(2).) Her
testimony also revealed unusual involvement in Pak’s finances,
including that An directed statements for a loan taken out in
Pak’s name to be mailed to her home address.
Third, An’s tactics in dealing with Pak included “[i]nitiation
of changes in personal or property rights,” including registering
Pak for IHSS and causing him to transfer his house to her.
(Welf. & Inst. Code, § 15610.70, subd. (a)(3)(C).) An also used
“secrecy in effecting those changes” (ibid.)—she never told
Plaintiffs, who were Pak’s children, that she had engaged in
either of these actions.
Finally, there is clear inequity in the result. An caused Pak
to transfer the valuable house to her for no consideration.
(See Welf. & Inst. Code, § 15610.70, subd. (a)(4).) She argues
that there could have been valid reasons for him to do so, but this
is nothing more than a request that we reweigh the evidence.
We further note An’s assertion that Pak might have wanted to
give the house to her as a gift in appreciation of her “in home
care” is contrary to the court’s findings. The court found she did
not provide him any care (although she received government
payments to provide it). Certainly, then, the value of An’s non-
existent services was disproportionately small compared to the
value of the house. (See ibid.)
These record facts constitute substantial evidence of
inequity. An argues that the trial court improperly relied on
evidence of a prior expression of intent, but this would not change
the analysis. As noted above, in reviewing a trial court’s findings
13
of undue influence, we consider the totality of the circumstances
and not individual pieces of evidence discussed by the trial court
in isolation. (Gomez, supra, 54 Cal.App.5th at p. 1033.) On the
record here, such review permits no finding of error in the trial
court’s conclusion that An exerted undue influence over Pak in
causing him to deed his house to her.
III. Standing
The parties’ arguments about standing are disjointed and
conclusory. As best as we can tell, they address two grounds for
standing. The first is whether Plaintiffs had standing under
Code of Civil Procedure section 377.11 to prosecute the Civil Code
section 3412 cancellation claim on Pak’s behalf as the statutorily
defined “decedent’s successor in interest.” The second is whether
Plaintiffs had an interest in the property sufficient to prosecute
the cancellation claim in their own right. As it appears the
second ground is the one the trial court relied on in proceeding to
judgment (An never raised the first), we begin there and conclude
that Plaintiffs had standing. Accordingly, we need not consider
standing under Code of Civil Procedure section 377.11 and
related sections.
Civil Code section 3412 provides: “A written instrument,
in respect to which there is a reasonable apprehension that if left
outstanding it may cause serious injury to a person against whom
it is void or voidable, may, upon his application, be so adjudged,
and ordered to be delivered up or canceled.”
An argues that the words “against whom” deprive Plaintiffs
of standing to cancel the deed because they are not parties to the
deed. In support, she offers quotations from Saterbak v.
JPMorgan Chase Bank, N.A. (2016) 245 Cal.App.4th 808(Saterbak), Osborne v. Abels (1939) 30 Cal.App.2d 729, and
14
Reina v. Erassarret (1949) 90 Cal.App.2d 418 (Reina).
Without elaboration, An quotes Saterbak for the
proposition that, “[t]o state a cause of action under section 3412,
[the plaintiff] must allege the assignment was void or voidable
against her.” (Saterbak, supra, 245 Cal.App.4th at p. 818.) She
then quotes Osborne for the proposition that a plaintiff “without
any title or interest in the property cannot maintain” a cause of
action for cancellation (Osborne, supra, 30 Cal.App.2d at p. 731)
and Reina for the proposition that “[a]s a general rule a party to
the contract or privy thereto, and he alone, is entitled to maintain
a suit to cancel or rescind it, and one who is a stranger to, or has
no interest in the subject matter of the suit is not ordinarily
entitled to such relief.” (Reina, supra, 90 Cal.App.2d at
pp. 423-424.)
An’s quotation to Reina is grossly misleading, as she omits
(without indication) the end of the quote: “. . . and where
sufficient grounds exist for the rescission and cancellation of a
conveyance, it may be set aside at the suit of those succeeding to
the rights of the grantor.” (Reina, supra, 90 Cal.App.2d at p. 424,
italics added.) The Reina opinion continues, “it has been
definitely held that relief by way of cancellation of an instrument
is not necessarily confined to a party to the instrument if his legal
or equitable rights are affected thereby.” (Ibid., italics added.)
Page v. Garver (1905) 146 Cal. 577 (Page), a case cited in
Reina as holding that “an heir, as distinguished from a personal
representative, may sue to set aside a deed made by his ancestor
during his lifetime,” is further illuminating. (Reina, supra, 90
Cal.App.2d at p. 423.) In that case, a widow, who met and wed
the intestate decedent shortly before his death in 1899, sued the
decedent’s daughter from a prior marriage for cancellation of an
15
1896 deed transferring real property from the decedent to the
daughter. (Page, supra, at p. 860.) According to the widow’s
allegations, the daughter procured the deed through undue
influence. The daughter demurred on multiple grounds,
including that the decedent’s estate had not been administered
and that the widow had “failed to show that she ha[d] any
interest in the property . . . .” (Id. at pp. 860–861.) The court
rejected both contentions. As to the former, the court noted
precedent in which the lack of administration did not bar a suit
by heirs. (Id. at p. 861, citing Trubody v. Trubody (1902) 137 Cal.
172.) As to the latter, it explained: “When [decedent] died he
was the equitable owner of the property, with the right to assert
his interest and attack his conveyance to defendant on the
grounds alleged in the complaint. Dying intestate plaintiff
succeeded to a widow’s interest in his equitable estate.”
(Page, supra, at p. 861.)
Given that the Supreme Court found an adequate property
interest to support the widow’s cancellation claim in Page, we
must find Plaintiffs’ interest adequate here. After accounting for
other heirs, the widow in Page claimed a share of seven
fifteenths—less than half—of the decedents’ property under the
rules of intestate succession. Although their ultimate share has
yet to be determined through probate, evidence adduced at trial
was sufficient to establish that Plaintiffs held some interest in
Pak’s equitable estate, including his equitable interest in the
Downey property.
An admits that Pak is the father of the Plaintiffs. She
further admits that Pak died intestate. As a result, Plaintiffs
were heirs of Pak entitled to tenancy in common interests in
Pak’s property. (Prob. Code, § 6402; see also Johns v. Scobie
16
(1939) 12 Cal.2d 618, 623 [“The decedent died intestate, and upon
his death title to the property became vested in his heirs
[citation] whether such heirs were known or unknown.
[Citation.] In the present case the heirs . . . were entitled to
equal shares under the laws of succession, and therefore took
title as tenants in common”].) Though subject to administration,
those interests vested in Plaintiffs immediately upon Pak’s death.
(Prob. Code, § 7000.)
We thus conclude that Plaintiffs had adequate interests in
the property to pursue the cancellation claim. As the trial court
found “sufficient grounds exist for the rescission and cancellation
of [the] conveyance” to An (see Reina, supra, 90 Cal.App.2d at
p. 424), it properly “set it aside at the suit of those succeeding to
the rights of the grantor.” (Ibid.) This was appropriate because
Plaintiffs’ “equitable rights” were affected by the transfer to An.
(Ibid.)
DISPOSITION
The judgment of the trial court is affirmed. Costs are
awarded to Plaintiffs.
*
HARUTUNIAN, J.
We concur:
STRATTON, P. J. GRIMES, J.
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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