Reuter v. Macal

Filed 11/18/20
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
BERND REUTER, B298265
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NC061570)
v.
CLAUDIA L. MACAL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of the
County of Los Angeles, Michael P. Vicencia, Judge. Affirmed.
Albert S. Israel and Bruce A. Dybens for Defendant and
Appellant.
Law Office of Thomas Armstrong, Thomas Armstrong for
Plaintiff and Respondent.
 Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication with the exception
of Discussion parts B through E.
I. INTRODUCTION
In May 2005, plaintiff Bernd Reuter executed a deed
granting defendant Claudia L. Macal a joint interest in his
condominium. In January 2018, plaintiff sued defendant seeking
to quiet title to the condominium in his favor. At trial, plaintiff
argued, among other things, that the deed should be rescinded
under Civil Code section 1590 (section 1590) as a gift made in
contemplation of marriage. The trial court ruled in favor of
plaintiff on the quiet title claim and entered a judgment
requiring defendant to reconvey title.
On appeal, defendant raises several contentions, including
claims of error based on the statute of limitations, the conclusive
presumption established by Evidence Code section 622, the
sufficiency of the evidence in support of the quiet title claim,
waiver and estoppel, and an abuse of discretion in allowing an
amendment to the quiet title claim to conform to proof. In the
published portion of this opinion, we hold that the tolling rule in
Muktarian v. Barmby (1965) 63 Cal. 2d 558, 560 (Muktarian)
applies to defendant’s statute of limitations defense and applies
in the context of plaintiff’s claim for relief under section 1590. In
the unpublished portion, we reject defendant’s other challenges to
the quiet title judgment and therefore affirm that judgment.
2
II. FACTUAL BACKGROUND
A. Plaintiff’s Testimony
At the time of trial, plaintiff was 64 years old and
defendant was 45. In early 2004, the parties became involved in
a romantic relationship, and by the middle of 2004, defendant
and her youngest daughter moved into plaintiff’s condominium.1
Sometime between the middle and end of 2004, the parties
discussed marriage. Plaintiff told defendant that he wanted to
marry her, and she agreed, but on the condition that her name be
placed on title to his condominium. Defendant continued
“pushing for” her name to be on title until plaintiff agreed.
On May 16, 2005, plaintiff and defendant went to a notary
public before whom plaintiff executed a grant deed conveying to
defendant a joint interest in his condominium. The form deed
contained a printed recital which read, “For a valuable
consideration, receipt of which is hereby acknowledged . . . .” But
it also had the notary’s handwritten notation that read, “This is a
bona[ ]fide gift, and grantor received nothing in return - - R&T
11911.”2 Notwithstanding the notation, plaintiff “expected
something in return,” namely, marriage, and made that
expectation clear to defendant.
1 Defendant also had an older daughter who lived in El
Salvador at the time.
2 Revenue and Taxation Code section 11911 authorizes
counties to impose a tax on the deeds, instruments, and writings
by which real property is sold within the county.
3
In 2011, defendant disclosed to plaintiff that she was
pregnant by another man and intended to keep the child.
Plaintiff responded, “‘Okay, if that’s your decision, then you have
to leave.’” Defendant agreed to move out, but asked plaintiff to
“‘give [her] some time, about a year.’” Although plaintiff
acquiesced, he understood that the relationship was over because
the parties “had separate bedrooms, and [they] didn’t really talk
[that] much to each [other] . . . .” By that time, it was clear to
him that defendant would not be able to carry out her promise of
marriage.
During the following year, defendant’s son was born, and
despite defendant’s promise to move out, she continued to live in
the condominium through and including the time of trial.
Plaintiff did not take any legal action against defendant because
she “always asked for more time” to move out. Defendant
explained that she needed more time to find a new “boyfriend,”
and left her children with plaintiff while she went out on
weekends “looking for boyfriends.”
Following the breakup in 2011, plaintiff continued to give
defendant between $6,000 and $7,000 a month, totaling over
$250,000. In plaintiff’s view, the amounts that he gave to
defendant were a down payment to recover the interest in the
condominium that he had deeded to her. According to plaintiff,
defendant agreed to accept the money as a down payment, but
also stated that she had “no interest” in the condominium; she
just wanted a place to live. This went “on and on until [plaintiff]
just finally couldn’t take it anymore, and [he] had to take some
legal steps.”
4
B. Defendant’s Testimony
Defendant testified that when she moved in with plaintiff
in 2004, he told her that he wanted to marry her, and in
approximately December 2004, defendant agreed to marry him.
She again agreed to marry plaintiff in 2009 when her oldest
daughter moved from El Salvador to live with them and attend
middle school.
According to defendant, she asked plaintiff to put her on
title because she “wanted security for [her] daughters. [She and
plaintiff] had been together practically for a whole year . . . .” She
went to the notary with plaintiff in May 2005 because he wanted
to give her a joint interest in his condominium as a gift. But,
according to defendant, she and plaintiff did not discuss marriage
at that time.
Following the transfer of title, defendant assumed that
plaintiff would, and he did, continue to pay the mortgage, the
property taxes, and the maintenance and repair expenses on the
property, as she had not worked since she moved to the United
States approximately 17 years earlier. The parties’ financial
arrangement was consistent with defendant’s understanding that
she would live together with plaintiff in one household to raise
the children.
When defendant became pregnant in 2011, plaintiff asked
her to return the property to him. She refused because “it was a
gift.”
After defendant’s son was born, she and plaintiff did not
often talk about her interest in the property because plaintiff
“loved [her] son . . . .” On the occasions between 2011 and 2018
when they did talk about her interest, she told plaintiff “all [she]
5
needed was [her] bedroom . . . [, but that the interest in the
condominium] was a gift. [And she asked why she would] have to
give it back?” According to defendant, the couple never married
because plaintiff no longer wanted to marry her. She
acknowledged that by 2011, “[t]he relationship was over.”
III. PROCEDURAL BACKGROUND
On January 8, 2018, plaintiff filed a complaint against
defendant asserting three causes of action, including the first
cause of action to quiet title and remove cloud on title to real
property by cancellation of an instrument.3 According to the
complaint, the May 2005 grant deed was procured by undue
influence and for inadequate consideration, as plaintiff received
nothing of value in exchange for the deed.
In his brief filed on the day of trial, plaintiff explained that,
in addition to seeking cancellation of the May 2005 deed based on
undue influence and lack of consideration, he also sought to
rescind the deed as a gift in contemplation of marriage under
section 1590.
At the beginning of trial, plaintiff’s counsel referred to a
“discussion we had with the court this morning concerning the
issues that would be germane in this case,” and stated that the
evidence at trial would be focused on the issue of whether “the
marriage was contemplated and whether the donee refuse[d] to
3 The second and third causes of action alleged common
counts for money had and received and money paid. The trial
court granted judgment in favor of defendant on those two
claims, and plaintiff did not cross-appeal from that portion of the
judgment.
6
enter into marriage as contemplated or that it’s given up by
mutual consent of the parties.”4
At the close of evidence, plaintiff moved to amend the first
cause of action, the quiet title claim, to conform to proof at trial.
As plaintiff’s counsel explained, based on the evidence at trial,
plaintiff sought to “add an allegation that the deed was . . .
provided as a gift in contemplation of marriage.” The trial court
asked, “Under . . . section 1590?” Counsel responded, “Correct.”
Defendant objected, claiming the proposed amendment was
untimely and prejudicial because defendant did not depose
plaintiff “on it.” The trial court disagreed with defendant’s
characterization and concluded that based on its review of
portions of plaintiff’s deposition, defendant had asked questions
on the topic.5 The court granted the motion to amend to conform
to proof.
Following closing arguments, the trial court took the
matter under submission and subsequently issued a written
ruling. On the statute of limitations, the court ruled as follows:
“Defendant insists that plaintiff’s claim to quiet title is barred by
the statute of limitations. As defendant would have it, the
statute began to run in 2011, when the romantic relationship
ended, and had long expired by the filing of the complaint in
January of 2018. However, the statute of limitations ‘does not
run against one in possession of land.’ [Salazar v. Thomas]
4 The record does not include a transcript of a discussion
between the court and the parties on the morning of trial.
5 A transcript of plaintiff’s deposition was provided to the
court for its review during trial. But the transcript is not part of
the record on appeal.
7
(2015) 236 Cal. App. 4th 467, 477 [(Salazar)]; [Muktarian, supra,]
63 Cal.2d [at p.] 560; [Crestmar Owners Assn. v. Stapakis] (2007)
157 Cal. App. 4th 1223, 1228 [(Crestmar)]. [Plaintiff] never
relinquished possession of the premises.”
Where the parties’ testimony diverged on the reason for the
gift, the trial court found “[plaintiff] to be more credible. His
demeanor and attitude toward[ ] testifying appeared honest and
forthright. [Defendant], on the other hand, appeared less
credible to the court.”
The trial court ruled that “plaintiff should succeed on his
first cause of action and defendant succeeds on the second and
third causes [of action].” The court thereafter entered a judgment
in conformance with its ruling, declaring that defendant held title
to the condominium in constructive trust for the benefit of
plaintiff and ordering her to reconvey that title to plaintiff.
Defendant filed a timely notice of appeal from the judgment.
IV. DISCUSSION
A. Statute of Limitations
1. The Muktarian Tolling Rule
Defendant contends that the trial court erred by applying
the tolling rule in the Supreme Court’s decision in Muktarian,
supra, 63 Cal. 2d 558 and concluding that no statute of limitations
had run against plaintiff’s action to recover full title to the
property. According to defendant, the court should have followed
the more closely analogous Court of Appeal decision in Ankoanda
v. Walker-Smith (1996) 44 Cal. App. 4th 610 (Ankoanda) and
8
concluded that plaintiff’s quiet title claim was barred by the
three-year limitations period in Code of Civil Procedure section
338 (section 338). We disagree.
In Muktarian, supra, 63 Cal. 2d 558, when the 75-year-old
plaintiff decided to marry a second time, his son, the defendant,
convinced his father to deed the disputed property to him6 to
prevent the second wife from acquiring an interest in it. (Ibid.)
The son gave no consideration for the deed, made no false
promises with respect to the deed, and did not exert any duress
or undue influence on the father. (Ibid.) But the deed and the
son’s recording of it were contrary to “‘the intentions in the mind
of [the father] at the time of executing [the] deed.’” (Ibid.) The
day after the father executed the deed, he met with a lawyer and
discovered his error. (Ibid.)
At all times after he executed the deed, the father remained
in possession of the property and paid the taxes on it.
(Muktarian, supra, 63 Cal.2d at pp. 559–560.) Several years
after executing the deed, the father spoke to another lawyer
about clarifying his rights under the deed, but again took no
action. (Id. at p. 560.) When the father thereafter decided to sell
three acres of his property, the son signed the necessary grant
deed. (Ibid.) But when the son subsequently refused to agree to
a proposed sale of an additional 52 acres, the father filed a quiet
title action. (Ibid.)
The trial court entered judgment in favor of the son based
on the three-year statute of limitations on actions for fraud and
mistake in section 338. (Muktarian, supra, 63 Cal.2d at p. 559.)
The father appealed, contending that the trial court erred in
6 The deed conveyed title to the son subject to a life estate in
the father. (Id. at p. 559.)
9
ruling that section 338 barred his action. (Muktarian, supra, 63
Cal.2d at pp. 660–661.)
The Supreme Court in Muktarian, supra, 63 Cal. 2d 558
agreed with the father on the statute of limitations issue,
reasoning as follows: “Since there is no statute of limitations
governing quiet title actions as such, it is ordinarily necessary to
refer to the underlying theory of relief to determine which statute
applies. [Citations.] In the present case, however, it is
unnecessary to determine which statute would otherwise apply,
for no statute of limitations runs against a plaintiff seeking to
quiet title while he is in possession of the property. [Citations.]
In many instances one in possession would not know of dormant
adverse claims of persons not in possession. [Citation.]
Moreover, even if, as here, the party in possession knows of a
potential claimant, there is no reason to put him to the expense
and inconvenience of litigation until such a claim is pressed
against him. [Citation.] Of course, the party in possession runs
the risk that the doctrine of laches will bar his action to quiet
title if his delay in bringing action has prejudiced the claimant.
[Citations.]” (Id. at pp. 560–561, fn. omitted.) Here, at all times
after he executed the May 2005 deed, plaintiff was in continuous
possession of the condominium. And, although he voluntarily
shared that possession with defendant and was presumably
aware of her potential adverse claim to title, at no time from the
execution of the deed in 2005 through the filing of plaintiff’s quiet
title action in 2018 did defendant assert such an adverse claim of
title against him. Thus, under the rationale of Muktarian, supra,
63 Cal. 2d 558, there was no reason for plaintiff to incur the
expense or inconvenience of litigation against defendant.
Accordingly, regardless of which statute of limitations governed
10
plaintiff’s quiet title claim, it could not have begun to run against
him while he was in undisturbed possession of his condominium.
Contrary to defendant’s assertion, the Court of Appeal
decision in Ankoanda, supra, 44 Cal. App. 4th 610 is not more
closely analogous to the facts of this case and thus does not
control our disposition of the statute of limitations issue. In that
case, the plaintiff—the owner of a two-story residence in San
Francisco (the City)—initially rented the downstairs portion of it
to the defendant in 1974.7 (Ibid.) The defendant eventually
occupied the entire property. (Id. at pp. 612–613.) She paid
monthly rent, made substantial improvements to the property,
and obtained a daycare license for the ground floor unit in 1984.
(Id. at p. 613.)
In 1986 and 1987, the defendant applied for a grant
program through the City and, with the written consent and
cooperation of the plaintiff, obtained a grant to improve the
property for the purpose of providing day care for low income
families. (Ankoanda, supra, 44 Cal.App.4th at p. 613.) In May
1986, the plaintiff executed a deed granting the defendant
ownership of the property, as a tenant in common, along with the
plaintiff and a third party.8 (Id. at p. 613.) The plaintiff believed
she was required to execute the deed so that the defendant could
receive the grant from the City. (Ibid.) She also believed that
7 The plaintiff moved out of the upstairs portion of the
residence in 1976 and had not lived in the residence since. (Id. at
p. 612.)
8 In 1987, the plaintiff executed a second grant deed
conveying a joint tenancy interest in the property to herself, the
defendant, and the third party. (Id. at p. 614.)
11
the defendant would reconvey her interest once the grant
program was completed. (Ibid.) The defendant, on the other
hand, considered herself a co-owner of the property and believed
she shared an equal responsibility for property expenses. (Id. at
pp. 613–614.)
In June 1989, the defendant’s attorney sent the plaintiff a
letter asserting the defendant’s joint ownership interest in the
property. (Ankoanda, supra, 44 Cal.App.4th at p. 614.) The
plaintiff, however, did not file a quiet title action against the
defendant until June 1993. (Ibid.) Among other defenses to the
plaintiff’s action, the defendant asserted that it was barred by the
three-year limitations period in section 338. (Ibid.) The trial
court rejected the limitations defense and entered a judgment in
favor of the plaintiff from which the defendant appealed. (Ibid.)
The Court of Appeal reversed, finding that the applicable
statute of limitations was not tolled and concluding that the
Muktarian tolling rule for parties in possession of property was
limited to possession that was “‘exclusive and undisputed.’”
(Ankoanda, supra, 44 Cal.App.4th at p. 616.) Although the court
noted that “Muktarian[, supra, 63 Cal. 2d 558] does not explicitly
refer to ‘exclusive and undisputed possession,’ that type of
possession was in fact present there and in the cases relied upon
in it.” (Ankoanda, supra, 44 Cal.App.4th at p. 616.) The court in
Ankoanda therefore concluded that the Muktarian tolling rule
did not apply to a plaintiff who jointly owned, but did not occupy,
a property. (Id. at p. 618.)
To the extent that Ankoanda, supra, 44 Cal. 4th 610
purports to limit the Muktarian tolling rule to those owners
whose possession is “‘exclusive and undisputed,’” we disagree
with that conclusion. Among other things, as the court in
12
Ankoanda acknowledged, no such limitation appears in
Muktarian, supra, 63 Cal. 2d 558. And subsequent to the decision
in Ankoanda, our Supreme Court cited Muktarian with approval,
repeating that “[i]t long has been the law that whether a statute
of limitations bars an action to quiet title may turn on whether
the plaintiff is in undisturbed possession of the land.” (Mayer v.
L&B Real Estate (2008) 43 Cal. 4th 1231, 1237 (Mayer).) That the
court in Mayer did not revisit the broad language of the
Muktarian tolling rule suggests that it was not limited in the
manner stated in Ankoanda. We therefore are bound to follow
that rule. (Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal. 2d 450, 455.)
Further, “[w]e find Ankoanda[, supra, 44 Cal. 4th 610]
inapt. The Ankoanda court’s gloss of ‘exclusive and undisputed’
possession distinguished the unusual facts before it from the very
different circumstances in Muktarian[, supra, 63 Cal. 2d 558],
where [the] father neither moved off his property nor gave up its
control after granting title to his son.” (Crestmar, supra, 157
Cal.App.4th at p. 1229.) The facts of this case are more
analogous to those in Muktarian than those in Ankoanda. Like
the father in Muktarian, plaintiff here never gave up possession
of the premises. By contrast, the landlord plaintiff in Ankoanda
did not occupy the property when the grant deeds were executed
or at any time thereafter. Moreover, in this case—unlike the
defendant tenant in Ankoanda, who had an attorney send the
plaintiff landlord a letter asserting the tenant’s joint property
interest—defendant never asserted an adverse claim that
disturbed plaintiff’s possession or threatened his claim to
superior title. Instead, she continued to occupy the property
based on her representations that she needed a place to live. (See
13
Salazar, supra, 236 Cal.App.4th at p. 478, quoting Secret Valley
Land Co. v. Perry (1921) 187 Cal. 420, 426–427 [The statute of
limitations in a quiet title action does not begin to run “‘until the
hostile claim is asserted in some manner to jeopardize the
superior title. So long as the adverse claim lies dormant and
inactive the owner of the superior title may not be incommoded
by it and has the privilege of allowing it to stand indefinitely’”].)
We conclude that the trial court did not err in applying the
long-standing Muktarian tolling rule to defendant’s statute of
limitations defense. As long as plaintiff enjoyed possession of the
condominium and defendant did not press her adverse claim
against him in a manner that threatened or disturbed that
possession, no statute of limitations began to run.
2. Application of the Rule to Section 1590
Defendant also argues that the Muktarian “tolling rule has
only been applied in quiet title actions, not in actions to recover a
gift under . . . section 1590.” But plaintiff here did allege a quiet
title claim seeking to be declared owner in fee simple of the
condominium based on theories of undue influence and lack of
consideration. Although, by the time of trial, his claim to sole
ownership was premised on his theory that the grant deed was a
gift in contemplation of marriage, that new theory of relief did
not affect the tolling of the statute of limitations. (See
Muktarian, supra, 63 Cal.2d at p. 560; Bank of New York Mellon
v. Citibank, N.A. (2017) 8 Cal. App. 5th 935, 944.) Thus, that
plaintiff’s theory of relief at trial was premised on section 1590
does not change our analysis of whether the Muktarian tolling
rule applies to the quiet title claim under the facts of this case.
14
B. Evidence Code Section 622
Defendant argues that the handwritten notation on the
May 2005 deed describing it as a “bona fide gift” and asserting
that plaintiff “received nothing in return” is conclusively
presumed to be true under Evidence Code section 622.9
According to defendant, plaintiff therefore was prevented from
introducing evidence that contradicted the handwritten notation.
Defendant’s contention requires us to interpret the May
2005 deed in light of the mandates of Evidence Code section 622.
“Interpretation of a deed ordinarily is a question of law we
undertake de novo. (Faus v. City of Los Angeles (1967) 67 Cal. 2d
350, 362 . . . .)” (City of Manhattan Beach v. Superior Court
(1996) 13 Cal. 4th 232, 252.)
As an initial matter, the express language of Evidence Code
section 622 makes clear that its conclusive presumption does not
apply to recitals of consideration. Here, the handwritten notation
is a recital concerning consideration, i.e., it asserts that nothing
of value was promised in exchange for the conveyance of the joint
interest. Thus, the facts set forth in the notation were not subject
to Evidence Code section 622’s conclusive presumption.
In addition, the handwritten notation characterizing the
conveyance as a gift appears to conflict with the printed recital
confirming the receipt of valuable consideration. Therefore, the
resulting ambiguity could be explained by extrinsic evidence of
the context within which the joint property interest was
9 Evidence Code section 622 provides: “The facts recited in a
written instrument are conclusively presumed to be true as
between the parties thereto . . . ; but this rule does not apply to
the recital of consideration.”
15
transferred. (Baker v. Ramirez (1987) 190 Cal. App. 3d 1123,
1132.)
Finally, Evidence Code section 622 does not apply to
prevent the introduction of evidence showing fraud or other
grounds for rescission. (Citizens Business Bank v. Gevorgian
(2013) 218 Cal. App. 4th 602, 625; Bruni v. Didian (2008) 160
Cal. App. 4th 1272, 1291.) Here, plaintiff sought to quiet title
based on a theory that the grant deed should be rescinded as a
gift made in contemplation of marriage. Therefore, evidence
establishing the statutory ground for that equitable relief was
admissible notwithstanding Evidence Code section 622.
C. Sufficiency of Evidence
Defendant also maintains that the trial court’s ruling on
the quiet title claim was not supported by the evidence. As
defendant views the trial evidence, it was insufficient to show
that she refused to marry plaintiff or that the contemplated
marriage was given up by mutual consent, as required by section
1590.
We review the trial court’s factual findings for substantial
evidence. (Cahill v. San Diego Gas & Electric Co. (2011) 194
Cal. App. 4th 939, 957.) “Substantial evidence is a deferential
standard, but it is not toothless. It is well settled that the
standard is not satisfied simply by pointing to ‘“isolated evidence
torn from the context of the whole record.”’ (People v. Johnson
(1980) 26 Cal. 3d 557, 577 . . . [(Johnson)], quoting Traynor, The
Riddle of Harmless Error (1969) p. 27; see Johnson, [supra, 26
Cal.3d] at p. 578.) Rather, the evidence supporting the [trial
court’s] finding must be considered ‘“in the light of the whole
16
record”’ ‘to determine whether it discloses substantial evidence—
that is, evidence which is reasonable, credible, and of solid value
. . . .’ (Johnson, [supra, 26 Cal.3d] at pp. 577, 578.)” (In re I.C.
(2018) 4 Cal. 5th 869, 892.)
Contrary to defendant’s assertion, there was evidence from
which a reasonable trier of fact could infer that the contemplated
marriage was given up by mutual consent. The trial court found
plaintiff’s testimony on the section 1590 claim to be more credible
than that of defendant. Thus, the court could have reasonably
inferred that defendant’s pregnancy, decision to raise the child,
and efforts to meet a new boyfriend, were, in effect, part of a
mutual agreement to forego the contemplated marriage. Further,
the court could have reasonably concluded that under all of the
circumstances of the case, it would be just for plaintiff to recover
his gift.
D. Waiver and Estoppel
Defendant maintains that the trial court erred by not
finding that plaintiff had either waived or was estopped from
asserting his claim to defendant’s interest in his property. Citing
to evidence that plaintiff and defendant executed a joint deed of
trust in 2016 to secure a line of credit, defendant concludes that
plaintiff’s conduct in obtaining defendant’s signature on that joint
deed waived any claim of sole ownership in the property he may
have had; or, in the alternative, estopped him from asserting a
claim of sole ownership of the property.
Although defendant asserts that she pleaded waiver and
estoppel as affirmative defenses and that she objected to the trial
court’s failure to rule on those defenses in its written decision,
17
the record does not reflect that defendant adequately raised her
waiver and estoppel arguments at trial. As an initial matter, her
answer contains no factual basis for her boilerplate assertions of
waiver and estoppel. Moreover, her trial brief did not mention
those defenses, she did not testify about those defenses, and she
did not argue those defenses at trial. Finally, defendant’s belated
objection based on the court’s failure to explicitly rule on the
defenses in its written decision was untimely because trial was
concluded in less than eight hours and defendant did not raise
the issue with the court prior to the matter being submitted as
required under Code of Civil Procedure section 632. Defendant
therefore forfeited her waiver and estoppel contentions by failing
adequately to raise them in the trial court. (Code Civ. Proc.,
§§ 632, 634; Thompson v. Asimos (2016) 6 Cal. App. 5th 970, 982–
983.)
Even assuming defendant had preserved her waiver and
estoppel contentions on appeal, the evidence before the trial court
was sufficient to support implicit findings that plaintiff did not
waive his claim to full title to the condominium and was not
otherwise estopped from asserting that claim against defendant.
“‘The question of waiver is a question of fact, and when
supported by sufficient evidence to justify the inference of waiver
is binding upon this court.’ [Citations.] ‘To constitute waiver it is
essential that there be an existing right, benefit, or advantage, a
knowledge, actual or constructive, of its existence, and an actual
intention to relinquish it, or conduct so inconsistent with the
intent to enforce the right in question as to induce a reasonable
belief that it has been relinquished.’ [Citation.] ‘“Waiver always
rests upon intent. Waiver is the intentional relinquishment of a
known right after knowledge of the facts.” [Citation.] It implies
18
“the intentional forbearance to enforce a right.”’ [Citation.]”
(Kay v. Kay (1961) 188 Cal. App. 2d 214, 218.)
Estoppel requires conduct on the part of the person to be
estopped which induces reasonable reliance on it by the party
asserting the estoppel. (Rheem Mfg. Co. v. United States (1962)
57 Cal. 2d 621, 626 [“There can be no estoppel unless the party
asserting it relied to his detriment on the conduct of the person to
be estopped”].)
Here, defendant’s waiver and estoppel claims are premised
solely on plaintiff’s conduct in requesting that defendant execute
a deed of trust necessary to secure a line of credit. Yet, at trial,
defendant asked only one question about the deed, in response to
which plaintiff merely confirmed he “recognized” that defendant
was a record owner of the property. But that fact—as the trial
court pointed out during argument—was undisputed and had
already been established by the May 2005 deed. And, as the trial
court noted during argument, defendant’s signature on the 2016
deed was necessary to secure the line of credit. Based on the
evidence, the trial court could have reasonably inferred that
plaintiff, by requesting that defendant execute the 2016 joint
deed, did not manifest an intent to relinquish his right to recover
full title to his property, i.e., that request was not so inconsistent
with plaintiff’s intent to enforce his right as to induce a
reasonable belief that he had relinquished that right.
Similarly, substantial evidence supported a reasonable
inference that defendant did not detrimentally rely on plaintiff’s
conduct with respect to the 2016 joint deed. Plaintiff’s request to
execute the deed for the purpose of securing a line of credit,
without more, did not suggest or imply that he wanted defendant
to change her position to her detriment by, for example,
19
refraining from filing a claim to title against him. And,
defendant did not testify about the joint deed, much less testify
that she somehow relied upon plaintiff’s request to her detriment.
E. Amendment to Conform to Proof
Defendant’s final contention is that the trial court abused
its discretion by allowing plaintiff to amend his pleading to
conform to proof at trial. Defendant also suggests that the ruling
allowing the amendment was defective because it did not require
plaintiff to file an amended complaint.
Leave to amend a complaint is within the sound discretion
of the trial court and “‘“[t]he exercise of that discretion will not be
disturbed on appeal absent a clear showing of abuse.”’” (Branick
v. Downey Savings & Loan Assn. (2006) 39 Cal. 4th 235, 242.)
“Such amendments have been allowed with great liberality ‘and
no abuse of discretion is shown unless by permitting the
amendment new and substantially different issues are introduced
in the case or the rights of the adverse party prejudiced
[citation].’ . . . [Citations.]” (Trafton v. Youngblood (1968) 69
Cal. 2d 17, 31.) “The basic rule applicable to amendments to
conform to proof is that the amended pleading must be based
upon the same general set of facts as those upon which the cause
of action or defense as originally pleaded was grounded.” (Union
Bank v. Wendland (1976) 54 Cal. App. 3d 393, 400–401.)
In his trial brief filed the day of trial, plaintiff raised
section 1590 as an alternative theory of relief based on the same
general set of facts. Plaintiff also candidly discussed the theory
with the trial court and counsel prior to the beginning of
testimony, and defendant did not object to it at that time.
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Plaintiff then proceeded to try his case on the theory that the
May 2005 deed had been given to defendant in contemplation of
marriage. At no point during the testimony of either party did
defendant object to any question relating to that theory on the
grounds it was irrelevant to the pleadings or otherwise
prejudicial. In fact, it was not until plaintiff moved to amend to
conform to proof at the end of trial that defendant finally
objected, suggesting that the request was untimely and deprived
her of the opportunity to depose plaintiff on the new claim, an
objection which the court overruled. But even then, defendant
did not specify any new testimony or evidence that she was forced
to confront at trial that was not disclosed during discovery.
Moreover, defendant did not suggest or imply that a formal
written amendment was required. (See Provost v. Worral (1956)
142 Cal. App. 2d 367, 373 [“‘where the motion to amend is made
during the trial and thereafter the case is tried as if the
amendment had been made, the parties by their actions are
estopped and cannot later complain that no formal amendment
was in fact made’”].) Under these circumstances, there was no
abuse of discretion.
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V. DISPOSITION
The judgment is affirmed. Plaintiff is awarded costs on
appeal.
KIM, J.
We concur:
BAKER, Acting P. J.
MOOR, J.
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