Azar v. Azar CA1/3 ( 2021 )

Filed 2/25/21 Azar v. Azar CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 THREE
INDRAWOUS AZAR, et al.
Plaintiffs and Respondents, A159261
v. (San Mateo County
Super. Ct. No. 18CIV01833)
SHIBLI AZAR, et al.,
Defendants and Appellants.
This case concerns an interfamilial dispute over the ownership of real
property. Indrawous (“Andy”) and his brother Simon Azar, along with Andy’s
wife Nadia Azar, are the plaintiffs in this case; we refer to Andy and Simon
collectively as “plaintiff brothers.”1 A third brother, Shibli Azar, and his wife
Naifeh Azar are the defendants. Following a bench trial, the court found
plaintiff brothers to be the real (beneficial) owners of the property, and
imposed a resulting trust in their favor; it found defendants held legal title as
trustees with no ownership interest. In the judgment under review, the court
further found that Simon had waived any beneficial interest in the property,
1 In order to avoid confusion as the parties share the same last name, we
shall hereinafter refer to them by their first names as used in the trial court.
We mean no disrespect by doing so.
1
and legal title of the property was quieted and confirmed to beneficial owner
Andy and his wife Nadia.
While the notice of appeal was filed on behalf of both defendants, no
appellate brief has been filed on behalf of Shibli. Accordingly, we dismiss his
appeal as abandoned. (See Newman v. Wells Fargo Bank (1996) 14 Cal.4th
126, 131, fn. 5 [appellant who filed notice of appeal abandoned appeal when
brief was not filed].) As to Naifeh’s appeal, we conclude the judgment must
be reversed as the court’s statement of decision includes impermissible and/or
irreconcilable findings concerning the resolution of two material issues: (1)
Shibli’s apparent authority to act for Naifeh and (2) Naifeh’s intent to
purchase the property in trust for Andy and Simon. Because the court’s
decision on these two key issues cannot be separated from its rulings on the
timeliness and merits of the resulting trust cause of action, we do not address
Naifeh’s challenges to those rulings. On remand, the trial court shall issue a
new statement of decision and enter judgment accordingly.
BACKGROUND
This action was commenced in 2018 to resolve a dispute over the
ownership of a two-story residence (hereinafter “the property”) purchased in
November 1976. Defendants never took possession of the property or lived in
the house. Instead, plaintiff brothers moved into the house along with other
family members and used it as their home for the next forty plus years. At
the time the lawsuit was filed, plaintiffs Andy and his wife Nadia were still
living in the home. Following a bench trial, the court granted relief to
plaintiffs on their causes of action for a resulting trust and to quiet title in
the property, and found in pertinent part that the resulting trust cause of
action was not barred by the statute of limitations.
2
The trial court issued a statement of decision detailing the findings in
support of its conclusion that plaintiff brothers met their burden of showing,
by clear and convincing evidence, that they were the real (beneficial) owners
under a resulting trust theory. The court found the property was purchased
with funds attributed solely to plaintiff brothers; title to the property was
taken in the names of both defendants (Shibli and Naifeh) to facilitate
financing the purchase; very shortly after the purchase plaintiff brothers took
possession of the property; and for the next forty plus years plaintiff brothers
considered themselves to be the owners, paid the mortgage, taxes, insurance,
utilities expenses, and maintained the property.
The trial court, “[s]ummarizing the testimony,” found there “was a
conflict between what the Plaintiffs alleged occurred and what the parties
intended and what the Defendants alleged occurred and what the parties
intended. Plaintiff[s] had significant documentation and corroboration of
their position; while Defendants had scarcely any credible or reliable
documentation or corroboration of their position. In fact, it appears that
[D]efendants engaged in intentional falsehoods concerning their payments of
expenses on the . . . property. For this reason, the court has discounted the
testimony from [D]efendants and found that, by clear and convincing
evidence, [P]laintiffs[’] allegations are supported by the evidence.”
Immediately following the above-described findings, the trial court
went on: “There is a question as to whether Shibli’s promises and actions can
bind Naifeh, who apparently objected to any agreement or understanding
[Shibli] had with plaintiffs, in regard to holding the property for Plaintiffs,
and ultimately transferring title to them. The court finds Shibli did bind
Naifeh’s interest in the property under the following combination of reasons:
First, all parties acknowledged that within the culture and practices of the
3
parties’ homeland, a husband speaks for the family and may bind the family
to agreements. Second, Naifeh testified that, because she feared for her
safety from Shibli, she remained silent in the presence of Shibli and Plaintiffs
when they discussed the subject of transferring title. She never spoke up
with any objection. Based upon these factors, Shibli had apparent authority
to speak on behalf of Naifeh; and Plaintiffs could reasonably rely on his
apparent authority.”
DISCUSSION
We begin our discussion with a short statement regarding the well-
settled law regarding the imposition of a resulting trust upon real property.
“ ‘A resulting trust arises by operation of law from a transfer of property
under circumstances showing that the transferee was not intended to take
the beneficial interest. [Citations.] Such a resulting trust carries out and
enforces the inferred intent of the parties. [Citations.] “Ordinarily a
resulting trust arises in favor of the payor of the purchase price of the
property where the purchase price, or a part thereof, is paid by one person
and the title is taken in the name of another. [Citations.] ‘The trust arises
because it is the natural presumption in such a case that it was their
intention that the ostensible purchaser should acquire and hold the property
for the one with whose means it was acquired.’ [Citations.]” ’ [Citation.] In
other words, the relationship between resulting trustee and beneficiary arises
where one, in good faith, acquires title to property belonging to another. The
law implies an obligation on the part of the one in whom title has vested to
hold the property for the owner’s benefit and eventually convey it to the
owner. The trustee has no duties to perform, no trust to administer, and no
purpose to pursue except the single purpose of holding or conveying the
4
property according to the beneficiary’s demands.” (Estate of Yool (2007) 151
Cal.App.4th 867, 874; italics in original.)
A. The Court Failed to Make Adequate Findings Regarding
Naifeh’s Intent and Shibli’s Apparent Authority to Act for
Naifeh
As the trial court noted, a key material issue was whether Naifeh
intended to purchase the property in trust for plaintiff brothers. As a
corollary to Naifeh’s intent, another key issue was whether Shibli had the
apparent authority to act for Naifeh (as her agent) and bind her to the
agreement he made with plaintiff brothers to purchase the property in trust
and convey title to them as the real (beneficial) owners.
However, the trial court did not make a specific finding as to Naifeh’s
intent, but instead it impermissibly relied on the “culture and practices” of
the parties to find that Shibli spoke for Naifeh in his discussions about the
property (because according to certain witnesses in their family a husband
speaks for his wife) while also finding Naifeh stayed silent out of fear. In so
ruling, the court appears to have failed to consider applicable California law
that governs this action. (See Hurtado v. Superior Court (1974) 11 Cal.3d
574, 581 [“it is understood that [‘](n)ormally, even in cases involving foreign
elements, the court should be expected, as a matter of course, to apply the
rule of decision found in the law of the forum[’]”; “generally speaking the
forum will apply its own rule of decision unless a party litigant timely
invokes the law of a foreign state”].)
The trial court’s “culture and practices” rationale is not based on any
statements by Naifeh that her husband, Shibli, spoke for her. Rather, the
only support in the record is plaintiff brothers’ testimony that in their family
it is understood that a husband speaks for his wife. They further testified
5
that, as a consequence, a husband can bind his wife to an agreement to
convey community real property without her consent. The record does not
contain any evidence that Naifeh told plaintiff brothers that Shibli was
acting for her. Meanwhile, the evidence is undisputed that Naifeh filed a
complaint with the city in 1980 in an attempt to stop construction on the
property based on her assertion that she was the owner.
The marital relationship between Naifeh and Shibli is insufficient to
support a finding that Shibli had apparent authority to act for Naifeh. While
“spouses are fiduciaries,” that does “not create a power to contractually bind
each other in the agency context;” and “ ‘agency cannot be implied from the
marriage relation alone.’ ” (Flores v. Evergreen at San Diego, LLC (2007) 148
Cal.App.4th 581, 589 (Flores); see In re Brace (2020) 9 Cal.5th 903, 938,
quoting Fam. Code, § 1102, subd. (a), formerly Civ. Code, § 51272; see Fam.
Code, § 1102, subd. (a) [while “either spouse has the management and control
of the community real property . . . acquired . . . after January 1, 1975, . . .
both spouses, either personally or by a duly authorized agent, are required to
join in executing an instrument by which . . . community real property or an
interest therein is . . . conveyed” to a third party].) It is true that “ ‘much less
evidence is required to establish a principal and agent relationship between
husband and wife than between nonspouses,’ ” but the testimony of plaintiff
brothers is inadequate as it is premised upon Shibli being able to speak for
Naifeh based solely on their marital relationship. (Flores, supra, at p. 589.)
2 “In 1975, reforms of the community property laws became effective,
including legislation giving either spouse the management and control of the
community property ([Civ. Code,] § 5125) and made [former Civil Code]
section 5127 gender neutral. (Stats.1974, ch. 1206, § 5, p. 2610.)” (Droeger v.
Friedman, Sloan & Ross (1991) 54 Cal.3d 26, 35.) In 1993, former Civil Code
section 5127 was continued in Family Code section 1102 without substantive
change. (23 Cal. L. Rev. Comm. Reports 1 (1993).)
6
We find unavailing plaintiffs’ attempt to justify the trial court’s
“culture and practices” rationale under Evidence Code section 1105, which
allows a court to consider evidence of “habit or custom” to prove conduct on a
specified occasion in conformity with that habit or custom. (Ibid.) Here, the
court made no finding that Naifeh had any “habit or custom” of either
delegating authority to Shibli to handle community real property purchases
or allowing him to unilaterally bind her to contractual obligations.
Finally, there is no justification for the trial court’s second reason to
confer apparent agent status on Shibli—Naifeh’s testimony that she did not
object to the conveyance of title during family discussions out of fear for her
safety. “[U]nder some circumstances the wife’s inaction throughout dealings
which involve her property can be used as the basis for a finding that the
husband was her agent in these dealings and that his actions therefore were
binding on her and her property.” (Lovetro v. Steers (1965) 234 Cal.App.2d
461, 475.) However, there is nothing in our jurisprudence that would permit
a court to find that a wife stayed silent out of fear of her husband and his
family and yet can be bound by his statements under an agency theory. Also,
and significant for purposes of our review, the court’s seeming acceptance of
Naifeh’s testimony as to her fear for her safety is in direct and irreconcilable
conflict with its other finding that none of Naifeh’s testimony was credible.
B. Conclusion
It is the trial court’s obligation to issue a statement of decision that
resolves the material issues with adequate and definite findings of fact.
While we liberally construe findings on appeal to support the judgment, trial
“[c]ourts should frame their findings with sufficient definiteness to enable” us
to review the material issues, and findings should not be fatally
7
“contradictory on material issues.” (Zweig v. Fireman’s Fund Indemnity Co.
(1956) 139 Cal.App.2d 461, 465.)
Because the trial court’s statement of decision includes fundamentally
contradictory credibility findings and does not adequately or appropriately
address the key issues of Naifeh’s intent and, as a corollary, Shibli’s authority
to act for Naifeh, we reverse. On remand the court is directed to issue a new
statement of decision and enter judgment accordingly. Our decision should
not be read as expressing any opinion as to how the trial court should resolve
the material issues submitted by the parties, including the questions of
Naifeh’s intent and Shibli’s apparent authority to act for Naifeh.
DISPOSITION
The appeal filed by defendant Shibli Azar is dismissed.
The October 30, 2019 judgment is reversed. On remand the trial court
is directed to issue a new statement of decision and enter judgment
accordingly. The parties shall bear their own costs on appeal.
8
_________________________
Petrou, J.
WE CONCUR:
_________________________
Fujisaki, Acting P.J.
_________________________
Jackson, J.
A159261/Azar, et al. v. Azar, et al.
9