A.c. Spicer v. Sarah Cecconi

FILED
NOT FOR PUBLICATION FEB 15 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
A. C. SPICER, No. 09-17111
Trustee - Appellant, D.C. No. 5:07-cv-03636-JW
v.
MEMORANDUM *
SARAH CECCONI; et al.,
Appellees.
Appeal from the United States District Court
for the Northern District of California
James Ware, District Judge, Presiding
Argued and Submitted November 4, 2010
San Francisco, California
Before: GOULD and CALLAHAN, Circuit Judges, and KORMAN, Senior District
Judge.**
The Trustee for Enzo Giuseppe Cecconi’s bankruptcy estate appeals from
the Bankruptcy Court’s determination that, because Sarah Coleman Cecconi,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for Eastern New York, Brooklyn, sitting by designation.
Enzo’s wife, never intended to give Enzo any interest in her properties in Pebble
Beach, California, Enzo has no interest in the property. We affirm.1
We independently review the bankruptcy court’s decision, giving no
deference to the district court’s determinations. Friedman Enters. v. B.U.M. Int’l,
Inc. (In re B.U.M. Int’l, Inc.), 229 F.3d 824, 827 (9th Cir. 2000). “The bankruptcy
court’s interpretation of the applicable law is reviewed de novo, and its findings of
fact are reviewed for clear error.” Id at 828. Under this standard, we may not
“reverse a lower court’s finding of fact simply because we would have decided the
case differently;” rather we “must ask whether, on the entire evidence, [we are] left
with the definite and firm conviction that a mistake has been committed.” Easley
v. Cromartie, 532 U.S. 234, 242 (2001) (internal quotation marks and citations
omitted). We have noted that “[w]here there are two permissible views of the
evidence, the factfinder’s choice between them cannot be clearly erroneous.”
Rufino v. United States (In re Rifino), 245 F.3d 1083, 1086 (9th Cir. 2001)
(quoting Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574 (1985)
(internal quotation marks omitted).
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The parties are familiar with the facts and we repeat them here only as
necessary to explain our decision.
2
Applying this standard of review, we conclude that there is clear and
convincing evidence to support the Bankruptcy Court’s findings that (1) Sarah
never intended to give Enzo a beneficial interest in the property, even when his
name was placed on a title, (2) Sarah financed the purchase of the property solely
through her separate property, and (3) Sarah and Enzo both testified credibly that
neither intended for Enzo to hold any beneficial title in the property.
Although the placement of Enzo’s name on the 1984 grant deed may have
given rise to a gift presumption, see Socol v. King, 36 Cal. 2d 342, 348 (1950),
such a presumption can be rebutted by parol evidence. Owings v. Laugharn, 53
Cal. App. 2d 789, 792 (1942). Here, Sarah and Enzo’s credible testimony and
evidence rebutted any gift presumption that arose from the 1984 grant deed.
Similarly, the Trustee’s challenge to the Bankruptcy Court’s determination
that Sarah established a resulting trust in 1985 fails because there is sufficient
evidence that Sarah financed the purchase with her separate assets and that both
Sarah and Enzo understood that the property was Sarah’s separate property.
The creation of the Cecconi Residential Trust in 1995 might well have
altered the nature of the parties’ interest in the property. However, under
California law, the transmutation of real property must be in writing by “an express
declaration that is made, joined in, consented to, or accepted by the spouse whose
3
interest in the property is adversely affected.” California Family Code § 852(a).
The Bankruptcy Court determined that there was no such express declaration in the
Cecconi Residential Trust, citing Estate of MacDonald, 51 Cal. 3d 262 (1990).
Although a close question, we agree that under California law, the Cecconi
Residential Trust did not contain the requisite express declaration for the
transmutation of property. See In re Marriage of Starkman, 129 Cal. App. 4th 659,
664-65 (2005).
The Trustee’s assertion that the Bankruptcy Court failed to correctly apply
the beneficial interest presumption in California Evidence Code § 662 is also
unavailing as the Bankruptcy Court’s factual findings that Sarah never intended to
give Enzo any interest in the property and did not give him any interest in the
property were not clearly erroneous.
The Bankruptcy Court’s determination that Enzo holds no beneficial interest
in the Pebble Beach property is AFFIRMED.
4