Maddox v. Maddox CA4/1

Filed 6/21/23 Maddox v. Maddox CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
TINA A. MADDOX, D079989
Plaintiff, Cross-defendant and
Respondent,
(Super. Ct. No.
v. 37-2018-00045856-CU-OR-CTL)
SHERMAN C. MADDOX,
Defendant, Cross-complainant
and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Richard S. Whitney, Judge. Affirmed.
Workman Law and Christopher J. Workman for Defendant, Cross-
complainant and Appellant.
Palmer Rodak & Associates, Matthew Eric Palmer and Layla Zad for
Plaintiff, Cross-defendant and Respondent.
Defendant, cross-complainant and appellant Sherman C. Maddox
appeals a judgment in favor of his former spouse, plaintiff, cross-defendant
and respondent Tina A. Maddox, following a bench trial on Tina’s1 complaint
for quiet title, partition and “unjust enrichment” and Sherman’s cross-
complaint for elder abuse, slander of title, fraud and constructive trust. In its
judgment, the court found Tina had 50 percent ownership of residential real
property previously awarded to Sherman in connection with the parties’ 2003
marital settlement agreement and divorce judgment, as well as $67,860 in
rent owed to her by Sherman, in part finding that after the parties executed
the settlement agreement, they reconciled and resided together, and entered
into a new agreement with respect to the property that superseded their
divorce judgment. In arguments detailed below, Sherman contends the court
erred by its ruling, and also by rejecting his affirmative defenses and ruling
against him on his cross-complaint. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND2
The parties were married in September 1983 and separated in April
2002. In January 2003, they entered into a marital settlement agreement
1 We refer to the parties by their first names for convenience and not out
of disrespect.
2 We state the undisputed facts from the record or the trial court’s
statement of decision, and view other evidence in the light most favorable to
Tina as the prevailing party. Sherman in his opening brief states the facts
favorable to his position, contrary to settled appellate standards in reviewing
factual findings in support of a judgment following a bench trial, the
consequences of which we address below (see part III, post). As we also
discuss below (part II, post), Sherman asserted numerous objections to the
court’s statement of decision, and he argues they preclude application of the
doctrine of implied findings. But a court’s failure to make a finding on a
particular matter is harmless “unless the evidence is sufficient to sustain a
finding in favor of the complaining party which would have the effect of
countervailing or destroying other findings.” (Ribakoff v. City of Long Beach
(2018) 27 Cal.App.5th 150, 163.) Sherman does not address whether that is
the case here.
2
(settlement agreement), which was incorporated into a judgment of
dissolution. In part, the judgment awarded the family residence (the
property) to Sherman. It terminated the parties’ marital status as of June 8,
2003. Before their marital status terminated by operation of the judgment,
Tina in March 2003 created a living trust and quitclaimed her record title in
the property to that trust.
Thereafter, the parties did not live separate and apart, nor did they
abide by the terms of the settlement agreement. Up until August 2009, they
continued to live together as though they were married, shared expenses and
jointly paid bills, and maintained a joint bank account into which Tina made
deposits and Sherman’s employer deposited his paychecks. Sherman had
health insurance through Tina’s employer until about 2008. Tina made
house payments and paid insurance bills as well as other payments for
Sherman’s truck with Sherman’s knowledge. She made payments toward
Sherman’s credit card balance.
In February 2004, Sherman and Tina reached an agreement to place
Tina back on title to the property via a deed granting title to the property in
Sherman, an unmarried man, and Tina, an unmarried woman, as joint
3
tenants.3 They did so after discussing the matter and deciding that they
would remain on title together. A few days before Sherman and Tina signed
the February 2004 grant deed, Tina quitclaimed her interest in the property
out of her trust and back to herself as an unmarried woman.
In May 2005, Tina and Sherman together signed another trust deed for
the purpose of taking out a home equity line of credit so as to make
improvements to the property.
At the end of August 2009, Tina left Sherman and moved out of the
property after he committed an incident of domestic violence toward her and
their daughter.
In November 2009, Tina via counsel sent Sherman a copy of the
February 2004 grant deed, advising him of her position that she co-owned the
property with him. In January 2010, Tina quitclaimed her interest in the
property to herself for the purpose of breaking the joint tenancy relationship
between her and Sherman. In 2015 and 2018, Sherman asked Tina to
quitclaim her share of the property to him but she refused, as she wanted
him to pay her rent from 2009, the time she moved out of the property.
3 The February 27, 2004 deed grants ownership of the property from
“Sherman C. Maddox, and Tina A. Maddox, Trustee, Tina A. Maddox-2003
Trust, under Declaration of Trust dated March 19, 2003 . . . to Sherman C.
Maddox, an unmarried man, and Tina A Maddox an unmarried woman, as
joint tenants.” The deed contains a handwritten notation—“out of trust”—
next to an unchecked line pertaining to transfer tax. Tina’s expert witness at
trial agreed that note indicated no transfer tax was paid, but declined to
glean any intent of the parties from this note, as its author was unknown.
He surmised someone at the County Recorder’s office or title insurance
company was questioning how to record the deed without charging the
transfer tax. The expert testified it was not helpful to consider Tina’s
discovery responses on the issue of the parties’ intent, rather, their intent
was evident from the face of the deed.
4
In September 2018, Tina filed a complaint against Sherman asserting
causes of action for quiet title, partition and “unjust enrichment” based on
the February 2004 grant deed. In part, she alleged that after she and
Sherman finalized their dissolution, they reconciled and eventually executed
the February 2004 deed in which Sherman granted her an undivided one-half
interest in the property, superseding their dissolution judgment. Sherman
answered the complaint with various affirmative defenses, including that
Tina’s complaint was barred by specified statutes of limitation, laches,
unclean hands, equitable estoppel, waiver, consent, lack of consideration, and
mistake. He also filed a cross-complaint asserting causes of action for
financial elder abuse, slander of title, deceit and constructive trust.
The matter proceeded to a multi-day bench trial, during which both
parties testified and Tina presented an expert in real estate and title, John
Christopher Demas, on the issue of the parties’ ownership interest in the
property. Demas, whose qualifications Sherman did not challenge, explained
the difference between equitable and record title; equitable title being the
“actual ownership” of the property which may or may not be reflected in the
County Recorder’s office, and record title being the actual documents thus
recorded. He testified that as of the effective date of the dissolution
judgment, 100 percent ownership was transferred to Sherman. But following
entry of the dissolution judgment, Sherman and Tina reestablished joint
ownership of the property in February 2004 by executing the grant deed,
remerging equitable and legal title. According to Demas, the parties’
intention was to grant 50/50 ownership; the February 2004 deed was
unambiguous as to that intent. He testified Tina executed the January 2010
quitclaim deed as an estate planning device to terminate the joint tenancy,
and that quitclaim did not change the parties’ 50/50 ownership. Demas
5
testified that Sherman and Tina had a 50/50 interest in the property as of
May 2020, the date of his expert report. Nothing changed his opinion as to
ownership after that time.
Tina testified that after she and Sherman signed their settlement
agreement in January 2003, they still lived together as though they were
married until August 2009. She took care of their finances and paid the bills
with Sherman’s knowledge. While she and Sherman did not reconcile their
marriage, they reconciled their relationship. She testified Sherman put her
back on the property title because that was what they both agreed to; he did
not want her to leave and they were still in a relationship after their divorce.
Tina acknowledged that in March 2003, between January 2003 when the
judgment was entered and June 2003 when their marital status was to end,
she created a living trust for herself alone and transferred her interest in the
property to that trust so as to sever her and Sherman’s joint tenancy. She
testified she did so under her attorney’s guidance.
Sherman’s trial theory in part was that the February 2004 grant deed
only purported to transfer Tina’s title out of her trust to Tina as an
unmarried woman, and did not transfer to Tina any portion of Sherman’s 100
percent interest that he obtained in the marital settlement. According to
Sherman, Tina was included on the 2004 deed only because she violated the
settlement agreement and judgment by transferring her property into her
trust in March 2003, clouding the title. He argued the terms of the
settlement agreement were binding, and that agreement was not nullified by
the parties’ reconciliation, modified, revoked or superseded by the deed.
Sherman based his claim of unclean hands on Tina’s March 2003 transfer of
title; he also argued Tina’s quiet title claim was barred by waiver because she
did not contest, modify or appeal the dissolution judgment and as a result
6
waived any objections to the settlement agreement, as well as any claim to
legal, equitable or future ownership interest in the property. Sherman also
argued Tina’s quiet title claim was barred by his “mistake of fact or law” in
not intending to transfer his ownership interest to Tina, and Tina’s
fraudulent claims to title, which Tina made after advising Sherman the deed
“carried out the terms of the divorce.”
At trial, Sherman contradicted Tina, testifying that after their divorce,
he and Tina never lived together or reconciled their relationship. When
presented with documents reflecting he and Tina signed for a cash-out
refinance in 2004 he claimed after their divorce he was trying “the whole
time” to “take [Tina] off the house because the house was awarded to [him.]”
He could not explain why both he and Tina were listed as borrowers for the
refinance. Sherman testified he remarried in November 2008, but
acknowledged he was still depositing his employment income into a joint
bank account with Tina through July 2009. Sherman’s new wife testified she
and Sherman lived together on the property and shared expenses beginning
in 2007. Following the close of evidence, the parties did not make oral closing
statements, but agreed to file written closing arguments.
Thereafter, the court entered a statement of decision. Acknowledging
Tina’s testimony concerning her and Sherman’s reconciliation, it found
Sherman lacked credibility on his claim that he and Tina did not reconcile or
reside together after their separation. The court found Sherman’s testimony
was contradicted by the evidence of joint bank statements, receipts, checks,
concert tickets and other events. It found Tina’s version of events supported
by other evidence as to domestic violence restraining order proceedings and
motions related to the property. Among other findings, the court found Tina
had a claim to the property’s ownership as evidenced by the recorded deed,
7
and no evidence rebutted the Evidence Code section 662 presumption of
ownership. It found the property’s current ownership was vested in Sherman
and Tina as unmarried persons with undivided one-half interests in the
property as tenants in common. The court found Tina was entitled to
partition as well as $67,860 in reimbursement from Sherman, which
consisted of one-half the benefit Sherman received in reasonable rental value
after Tina vacated the property, less the property expenses. It found all of
the causes of action in Sherman’s cross-complaint time-barred, and that
Sherman had not met his burden to prove slander of title, fraud or
entitlement to a constructive trust. The court declined to modify its
statement after Sherman objected to it on various grounds.
Sherman filed this appeal.
DISCUSSION
I. Standard of Review
We apply settled review standards for a judgment based on a statement
of decision following a bench trial. (See Ribakoff v. City of Long Beach, supra,
27 Cal.App.5th at p. 162; Thompson v. Asimos (2016) 6 Cal.App.5th 970, 981.)
We review questions of law de novo, and apply the substantial evidence rule
to the trial court's findings of fact. (Ribakoff, at p. 162.) Under the
substantial evidence standard of review, “findings of fact are liberally
construed to support the judgment and we consider the evidence in the light
most favorable to the prevailing party, drawing all reasonable inferences in
support of the findings.” (Ibid.; see also Vasquez v. LBS Financial Credit
Union (2020) 52 Cal.App.5th 97, 109.) “ ‘A single witness’s testimony may
constitute substantial evidence to support a finding. [Citation.] It is not our
role as a reviewing court to reweigh the evidence or to assess witness
credibility. [Citation.] “A judgment or order of a lower court is presumed to
8
be correct on appeal, and all intendments and presumptions are indulged in
favor of its correctness.” [Citation.] Specifically, “[u]nder the doctrine of
implied findings, the reviewing court must infer, following a bench trial, that
the trial court impliedly made every factual finding necessary to support its
decision.” ’ ” (Ribakoff, at p. 162.)
When, as here, the court has issued a statement of decision under
section 632 of the Code of Civil Procedure explaining the factual and legal
basis for its decision, “the scope of appellate review may be affected . . . .”
(Thompson v. Asimos, supra, 6 Cal.App.5th at p. 981.) “[I]f the statement of
decision does not resolve a controverted issue or is ambiguous, and the
omission or ambiguity was brought to the attention of the trial court, ‘it shall
not be inferred on appeal . . . that the trial court decided in favor of the
prevailing party as to those facts or on that issue.’ ” (Ibid.; see Code Civ Proc.
§ 634.) “The statement of decision provides the trial court’s reasoning on
disputed issues and is our touchstone to determine whether or not the trial
court’s decision is supported by the facts and the law.” (Slavin v. Borinstein
(1994) 25 Cal.App.4th 713, 718.)
But “ ‘ “[a] trial court rendering a statement of decision under Code of
Civil Procedure section 632 . . . is not required to make findings with regard
to detailed evidentiary facts or to make minute findings as to individual
items of evidence. Only where a trial court fails to make findings as to a
material issue which would fairly disclose the determination by the trial
court would reversible error result. Even though a court fails to make a
finding on a particular matter, if the judgment is otherwise supported, the
omission is harmless error unless the evidence is sufficient to sustain a
finding in favor of the complaining party which would have the effect of
countervailing or destroying other findings. A failure to find on an
9
immaterial issue is not error. [Citation.] . . . All that is required is an
explanation of the factual and legal basis for the court’s decision regarding
such principal controverted issues at trial . . . .” ’ ” (Ribakoff v. City of Long
Beach, supra, 27 Cal.App.5th at p. 163; see also Metis Development LLC v.
Bohacek (2011) 200 Cal.App.4th 679, 689 [“a court need only fairly disclose its
determinations as to the ultimate facts and material issues in the case”];
Thompson v. Asimos, supra, 6 Cal.App.5th at p. 983.)
II. Effect of Sherman’s Objections to the Court’s Statement of Decision
Here, Sherman filed 36 separate objections to the court’s statement of
decision. He claimed certain of its findings were ambiguous, omitted
ultimate facts, and/or conflicted with undisputed facts.4 He claimed the
court omitted critical facts as to his affirmative defenses. The court reviewed
the objections and issued an order declining to modify the statement.
On appeal, Sherman contends that given his objections, we cannot
imply findings favoring the judgment on appeal as “the doctrine of implied
findings does not apply to many of the issues raised in this appeal, as
identified below.” By itself, this cursory and unspecific argument does not
avoid the doctrine of implied findings. We will not deem Sherman’s
4 Some of Sherman’s objections raised immaterial points without
explanation as to how they related to a controverted matter. He objected that
the statement of decision was ambiguous because the court stated the
judgment of dissolution was “entered into by the court on June 8, 2003.” The
face of the judgment indicates it was signed and filed on January 15, 2003,
and terminated his and Tina’s marital status as of June 8, 2003. Sherman
objected that the court’s finding as to “[p]aragraph II of the judgment” was
ambiguous because there was no such paragraph in the judgment, when it is
plain from the language used that the court was referring to paragraph II of
the parties’ settlement agreement, incorporated into the judgment. The trial
court did not err by failing to make further findings on such inconsequential
matters. (See Ribakoff v. City of Long Beach, supra, 27 Cal.App.5th at p.
163.)
10
objections forfeited on appeal, but he is not excused from his appellate burden
to demonstrate— with reasoned argument and authority—why the absence of
the sought-after findings is not harmless. (See Ribakoff v. City of Long
Beach, supra, 27 Cal.App.5th at p. 163.) And of course, Sherman’s objections
do not prevent us from upholding the judgment based on the court’s express
findings. We need not resort to implied findings when we can affirm the
judgment on express findings that are determinative on the issue. In
addressing Sherman’s points on appeal, we are mindful that the court was
not required to make findings on detailed evidentiary facts or other findings
unless they prevented a fair understanding of the court’s decision. (Ibid.)
III. Sherman Has Forfeited Any Sufficiency of the Evidence Challenge
As stated above, Sherman failed to provide a full and fair statement of
the trial evidence, but instead recites facts and positions in his favor. For
example, Sherman states that “Tina violate[d] the [divorce judgment],”
apparently referring to Tina’s March 2003 creation of a living trust and act of
recording a deed conveying her interest in the property to that trust. He
entirely omits any summary of the testimony of Tina’s expert Demas, who
explained equitable and legal title and the consequences and effect of the
settlement agreement and various deeds, including the February 2004 deed
granting title to the property in Sherman and Tina as joint tenants.
Sherman offers facts of questionable relevance to substantive issues, and
then mischaracterizes some of the testimony assertedly supporting the fact.5
5 For example, Sherman points out that Tina did not list the property in
a 2013 bankruptcy filing, a point relevant to her credibility, which we do not
assess on appeal. (Ribakoff v. City of Long Beach, supra, 27 Cal.App.5th at p.
162.) He says that in 2010, Tina filed papers in the family court relating to
the property and her request for rental income, then states that the court
11
He asserts Tina’s conduct, including her creation of her trust and purchase of
properties as an unmarried woman, is not “consistent with reconciliation.”
Ignoring Tina’s testimony to the contrary, he misleadingly asserts Tina
“admits there was no reconciliation,” when she was narrowly referring to
their marital status.6
Due to his one-sided presentation favoring his position, Sherman has
forfeited any substantial evidence challenge. The presumption is that the
record contains evidence to sustain every finding of fact and, thus, an
appellant who challenges a finding is required to set forth in his or her
opening brief “all the material evidence on the point and not merely their own
evidence.” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; see
also Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177
Cal.App.4th 209, 218 [“A party who challenges the sufficiency of the evidence
to support a finding must set forth, discuss, and analyze all the evidence on
that point, both favorable and unfavorable”]; Huong Que, Inc. v. Luu (2007)
150 Cal.App.4th 400, 409-410 [“An appellate court will consider the
sufficiency of the evidence to support a given finding only after a party
“ ‘threw out’ ” her claim. But his record citations do not support the
proposition. One citation is to Tina’s testimony that her petition “was not
resolved.” In the other part of the record, Tina was asked why her 2010
matter did not proceed, and responded: “Because Sherman wouldn’t answer.”
She was then asked:
[Counsel:] Did you go in front of a judge on this restraining order?
[Tina:] Yes.
[Counsel:] And did the judge issue orders? What was the judge’s
decision?
[Tina:] She threw it out.” (Italics added.)
6 At the cited portion of the record, Tina testified on cross-examination
that her and Sherman’s “relationship was reconciled.” Counsel then asked,
“So it would be inaccurate to say the marriage was reconciled . . . ?” Tina
responded, “That is correct.”
12
tenders such an issue together with a fair summary of the evidence bearing
on the challenged finding, particularly including evidence that arguably
supports it”].) Unless the appellant does so, the error is deemed waived.
(Foreman & Clark Corp. v. Fallon, at p. 881.) Accordingly, in this opinion, we
do not assess the sufficiency of the evidence to support the court’s factual
findings; we presume they are supported by the record.
IV. Quiet Title and Partition
In a series of arguments, Sherman attacks the trial court’s findings as
to Tina’s ownership of the property, and thus her entitlement to quiet title
and partition. He contends the court erred by ruling that he and Tina
reconciled and entered into a new agreement as to the property’s ownership
that superseded their divorce judgment, and that Tina owned an undivided
one-half interest as a tenant in common. According to Sherman, the court
misinterpreted the “plain meaning of the words used” in the 2004 deed, which
shows Sherman did not transfer anything to Tina.
Sherman further contends Tina’s creation of her trust and the transfer
of her property interest to it were wrongful acts making her and her trust
involuntary trustees of Sherman’s interest in the property. He maintains the
court erred because he met his burden of proof to establish he was the
property’s “true owner” pursuant to the divorce judgment and was entitled to
the statutory presumption (Evid. Code, § 662) as to ownership. On the basis
of these arguments, which Sherman incorporates by reference, Sherman
13
maintains the court erred in determining Tina was entitled to partition,
claiming she “has no present ownership interest in the [p]roperty.”7
A. Court’s Reconciliation Finding
Sherman’s arguments as to evidence of the parties’ reconciliation are
unavailing.8 Citing Kelley v. Kelley (1969) 272 Cal.App.2d 379 and In re
Marriage of Modnick (1983) 33 Cal.3d 897, he argues the court’s finding that
the parties had reconciled is not supported by substantial evidence; that its
findings do not address the issues needed to prove the “spouses mutually
7 Sherman’s objections to the trial court’s statement of decision on these
issues have recurring themes. He objected that the statement was
ambiguous because the court referred to the settlement agreement, and also
in various other places to a “new agreement,” “subsequent agreement,” and
“superseding contract” without saying whether they were the same or
different agreements; the court did not say whether any of those agreements
were express or implied; and the statement of decision only provided legal
conclusions without making findings as to the “essential elements” of the
agreements or contracts. Sherman’s objection No. 20 complained that the
court’s finding that Tina is entitled to partition omitted unspecified “critical”
findings. He referenced his previous objections 1 through 19, stating without
the sought-after findings, Tina’s right to partition “cannot be determined.”
But, as with his other objections to the statement of decision, Sherman
makes no effort on appeal to discuss harmless error or explain why the
absence of implied findings on these matters is fatal to the judgment.
8 Sherman objected to the court’s use of the term “reconciled” in its
statement of decision, arguing the statement should be clarified to “address
the status of the parties’ marriage after June 6, 2003[,]” and “clearly identify
the nature, scope, or legal status of the parties’ relationship after June 6,
2003.” Presumably Sherman intended to refer to the dissolution judgment’s
use of June 8, 2003, as the termination date of the parties’ marital status. In
any event, the court was not required to include additional evidentiary facts
in its statement. And Sherman does not explain on appeal why the absence
of a finding on the parties’ legal marital status after June 8, 2003, is fatal to
the judgment.
14
intended to resume their marital status and to live together on a permanent
basis.”
As stated, Sherman has forfeited his substantial evidence challenge by
disregarding Tina’s testimony and evidence (by way of bills, joint bank
account statements, concert tickets and other items) that he and Tina
resumed their relationship, continued to live together at the property as if
they were married, and reached an agreement about its ownership different
from the divorce judgment. Additionally, his arguments have an incorrect
premise, namely that Tina sought to prove the parties mutually intended to
restore their marital status or rights, when she merely sought to prove her
ownership interest in the property by showing she and Sherman decided to
restore their joint tenancy status as unmarried persons via the 2004 deed.
Sherman’s arguments are also based on inapposite case law, involving
parties who sought to prove or disprove a reconciliation after entry of an
interlocutory divorce decree for the purpose of either vacating or obtaining a
final dissolution judgment. (Kelley v. Kelley, supra, 272 Cal.App.2d at p. 381
[spouse moved for entry of a final judgment of divorce on grounds parties had
not unconditionally reconciled after their interlocutory divorce decree;
“[r]econciliation of the parties after the entry of an interlocutory decree of
divorce terminates the right to a final judgment”]; see In re Marriage of
Modnick, supra, 33 Cal.3d at p. 911 [“ ‘When parties become reconciled after
an interlocutory decree and live together as husband and wife, the right to a
final decree is destroyed [citations], and they are entitled to such rights as
arise from the legal relation of husband and wife’ ”; reviewing court
considered spouse’s argument that final judgment of dissolution should be set
aside on grounds parties had reconciled after entry of interlocutory decree].)
In that context, the party asserting reconciliation must show “ ‘clear and
15
cogent proof’ that the spouses mutually intended to resume their marital
status and to live together on a permanent basis.” (In re Marriage of
Modnick, at p. 911.) But Tina did not seek to vacate or set aside the divorce
decree or prove she had rights arising “ ‘from the legal relation of husband
and wife.’ ” (Ibid.) Sherman’s arguments do not persuade us to reverse the
judgment.
B. Interpretation of 2004 Grant Deed
We reject Sherman’s arguments as to the interpretation and effect of
the 2004 grant deed and its reflection of the parties’ intentions. Sherman
maintains the “plain and clear language” of the granting clause of the 2004
deed shows the ”only interest transferred . . . was an undivided one-half
interest from Tina A. Maddox, [t]rustee, out of trust to Tina A. Maddox, as an
unmarried woman.” He characterizes the deed as a “limited transfer” that
was affirmed by a “property tax declaration” on the deed’s face stating the
transfer was “ ‘out of trust.’ ” Sherman argues: “Accordingly, there is
nothing within the four corners of the 2004 [g]rant [d]eed indicating that
Sherman transferred anything to Tina . . . .”
It is true that grant deeds are to be interpreted as contracts. (Civ.
Code, § 1066; Pear v. City and County of San Francisco (2021) 67 Cal.App.5th
61, 70.) But “ ‘[t]he primary object of all interpretation is to ascertain and
carry out the intention of the parties. [Citations.] All the rules of
interpretation must be considered and each given its proper weight, where
necessary, in order to arrive at the true effect of the instrument. [Citation.]’
[Citations.] ‘Extrinsic evidence is “admissible to interpret the instrument,
but not to give it a meaning to which it is not susceptible” [citations], and it is
the instrument itself that must be given effect. [Citations.] It is therefore
solely a judicial function to interpret a written instrument unless the
16
interpretation turns upon the credibility of extrinsic evidence. Accordingly,
“[a]n appellate court is not bound by a construction of the contract based
solely upon the terms of the written instrument without the aid of evidence
[citations], where there is no conflict in the evidence [citations], or a
determination has been made upon incompetent evidence [citation].” ’ ” (City
of Manhattan Beach v. Superior Court (1996) 13 Cal.4th 232, 238, italics
added.) We review the trial court’s resolution of any conflicting extrinsic
evidence for substantial evidence. (Pear, at p. 70.)
Here, Tina presented extrinsic evidence surrounding the execution of
the 2004 grant deed to explain her and Sherman’s intentions. This evidence
assisted the court in determining the deed’s meaning. (Rancho Pauma
Mutual Water Co. v. Yuima Municipal Water Dist. (2015) 239 Cal.App.4th
109, 115.) “ ‘ “[T]he test of admissibility of extrinsic evidence to explain the
meaning of a written instrument is not whether it appears to the court to be
plain and unambiguous on its face, but whether the offered evidence is
relevant to prove a meaning to which the language of the instrument is
reasonably susceptible.” ’ ” (Ibid.) It is only when no conflicting extrinsic
evidence is admitted does contract interpretation become a question of law
that we review de novo. (Ibid.)
Sherman’s arguments fail to acknowledge the evidence surrounding the
2004 grant deed’s execution and the parties’ intent, which the court credited
in Tina’s favor. That evidence showed Tina and Sherman intended to and did
reestablish joint ownership of the property notwithstanding the dissolution of
their marriage. This evidence includes Tina’s expert’s testimony concerning
the effect of the deed, and it constitutes substantial evidence supporting the
court’s finding that the 2004 grant deed vesting title to the property in
Sherman and Tina as unmarried man and unmarried woman “as joint
17
tenants,” resulted in Tina obtaining a one-half ownership interest. Sherman
ignores the designation of the parties as joint tenants in the deed’s granting
clause. “A grant is to be interpreted in favor of the grantee . . . .” (Civ. Code,
§ 1069; see also City of Manhattan Beach v. Superior Court, supra, 13 Cal.4th
at pp. 242-243 [“ ‘doubtful clauses in the deed are to be construed most
strongly against the grantor, and as favorably to the grantee as the language,
construed in the light of the surrounding facts, will justify’ ”].)9
We acknowledge that the 2004 grant deed identifies as a grantor Tina
in her capacity as trustee of her trust. The deed also contained handwritten
words “out of trust” written by an unknown person. At most, this rendered
the deed’s meaning ambiguous. (See Rancho Pauma Mutual Water Co. v.
Yuima Municipal Water Dist., supra, 239 Cal.App.4th at p. 117 [defining
ambiguity as “ ‘an unclear, indefinite, or equivocal . . . meaning’ ”].)10 “A
word or expression is said to be ambiguous when it is ‘open to having several
possible meanings or interpretations’ ” and “[a]mbiguities in a written
instrument are either patent (arising from the face of the writing) or latent
(based on consideration of extrinsic evidence).” (Ibid.) But Tina’s expert
resolved that ambiguity, explaining that three days before the parties
executed the February 2004 deed, Tina as trustee of her trust had already
conveyed the property back to herself as an individual unmarried woman;
9 The statute contains an exception “that a reservation in any grant . . .
is to be interpreted in favor of the grantor.” (Civ. Code, § 1069.) No
reservation appears in the 2004 deed, which we interpret in Tina’s favor.
10 The trial court found the deed’s language unambiguous as to the
“marital status, or the joint tenancy created with the execution of this deed.”
To the extent our conclusions conflict, we rely on the settled principle that
“we may affirm the trial court’s ruling ‘on any basis presented by the record
whether or not relied upon by the trial court.’ ” (McClain v. Octagon Plaza,
LLC (2008) 159 Cal.App.4th 784, 802.)
18
that those few days was not enough time for the title company to update their
records; and that the “out of trust” notation on the deed was intended to
indicate there was no documentary transfer tax. He testified that the
“[h]ereby grants to Sherman Maddox, an unmarried man and Tina Maddox,
an unmarried woman as joint tenants” reestablished the parties’ joint
tenancy.
C. Constructive Trust Argument
Sherman’s constructive trust argument—that Tina and her trust were
involuntary trustees of his interest in the property—is premised on the idea
that Tina’s March 2003 transfer to her trust somehow violated the divorce
judgment or breached her fiduciary duty to Sherman and thus Tina either
wrongfully detained or wrongfully gained (Civ. Code, §§ 2223, 2224) title to
the property.
The argument fails on its premise. The notion that Tina violated the
terms of their divorce judgment is contradicted by the trial evidence—
accepted by the court—that Sherman and Tina elected not to abide by their
divorce judgment but instead continued their relationship and agreed to
restore their 50/50 ownership interest in the property via the 2004 grant
deed. Further, expert Demas testified that Tina’s March 2003 transfer was
an estate planning mechanism, and his opinion was that the judgment
awarded Sherman 100 percent ownership of the property on June 8, 2003—
after Tina’s transfer. He testified that if there was a question about the
ultimate disposition of the property, it would be prudent for a spouse to
separate their ownership from their future ex-spouse. The evidence does not
support Sherman’s assertion that Tina’s transfer occurring before the
effective date of the parties’ dissolution violated the judgment.
19
D. Court’s Ruling That the Parties’ Contract Superseded the Dissolution
Judgment
In its statement of decision, the trial court found that the parties’
dissolution judgment constituted a contract that neither party followed. It
found that instead, at some point between January 6, 2003, and February 27,
2004, they entered into a superseding contract via grant deed for Tina to be
placed back on title. As stated, Sherman challenges this finding, arguing a
divorce judgment is not a contract, and a contract cannot modify the parties’
divorce judgment. He cites In re Marriage of Thorne & Raccina (2012) 203
Cal.App.4th 492 (Thorne) for the proposition that marital property rights and
obligations adjudicated by a final judgment cannot be upset by subsequent
efforts to modify the judgment, and he argues no exceptions to that rule
apply. Thus, according to Sherman, there was “no legal or factual basis” to
allow the divorce judgment to be modified by contract, including the 2004
deed.
We are not persuaded. Again the premise of Sherman’s argument—
that Tina sought to modify her and Sherman’s divorce judgment or that the
trial court did so—is flawed. Tina’s quiet title and partition action was a civil
action involving ownership and title to real property as evidenced by recorded
documents effecting title transfers. The applicable principle—as the trial
court acknowledged—is the Evidence Code 662 so-called form-of-title
presumption. (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”]; see Estate of Wall (2021) 68
Cal.App.5th 168, 169, 173 [Evidence Code section 662 presumption “remains
viable for civil matters”].) The matter does not implicate interspousal
property transfers or questions of transmutation and fiduciary obligations,
20
because the real property transfers here occurred after the June 8, 2003
termination of the parties’ marital status, and the parties took title as
unmarried persons. (Compare In re Brace (2020) 9 Cal.5th 903, 935
[elucidating “the default rules that govern characterization of property
during marriage,” including that Evidence Code section 662 does not apply
when it conflicts with the Family Code section 760 presumption that all
property acquired by a married person while domiciled in this state is
community property (italics added)]; and In re Marriage of Delaney (2003)
111 Cal.App.4th 991, 998 [“In cases . . . involving interspousal property
transactions, the ‘irreconcilable conflict’ between the two presumptions
established by [Family Code] section 721 and Evidence Code section 662 has
been resolved in favor of [Family Code] section 721, based on the intent of the
Legislature in enacting fiduciary protections for interspousal transactions
and general rules of statutory construction”].) Neither the judgment nor
settlement agreement contains an anti-modification clause; neither prevented
the parties from mutually making later decisions concerning the property’s
ownership notwithstanding the dissolution judgment awarding it to a
particular spouse. (Compare In re Marriage of Carletti (1975) 53 Cal.App.3d
989, 995 [parties stipulated that support payments shall not be modified “ ‘for
any reason whatsoever’ ”].)
The circumstances here differ from those in Thorne, supra, 203
Cal.App.4th 492. In that case, a husband and wife entered into a marital
settlement agreement awarding the wife a percentage of the husband’s
military pension. (Id. at p. 496.) Years after the agreement became part of
an uncontested judgment of divorce, the wife, acting unilaterally, successfully
obtained modification of the judgment based on a claimed a mistake of law
concerning how to divide the pension. (Id. at pp. 497, 499.)
21
The Court of Appeal reversed the order modifying the judgment.
(Thorne, supra, 203 Cal.App.4th at p. 495.) It explained that “once a marital
dissolution judgment has become final, the court loses jurisdiction to modify
or alter it.” (Id. at p. 499.) It was in that context that the court stated,
“marital property rights and obligations adjudicated by a final judgment
cannot be upset by subsequent efforts to ‘modify’ the judgment.” (Ibid.)
The appellate court stated the sole remedy was a timely set-aside motion, a
timely appeal, or a Family Code section 2120 set-aside proceeding. (Ibid.)
Because the periods in which to take those actions expired, the trial court
lacked jurisdiction to make the modification. (Id. at p. 500.)
As stated, Tina did not seek to modify the parties’ dissolution
judgment. She presented evidence that the parties, following entry of the
judgment and in their capacity as unmarried persons, elected to have Tina
retain an interest by transferring the property to themselves as joint tenants.
Thorne does not persuade us to disturb the judgment.
E. Sherman’s Burden of Proof
Sherman contends the court erred because he met his burden of clear
and convincing proof to rebut the Evidence Code section 662 presumption of
ownership. Citing Buic v. Buic (1992) 5 Cal.App.4th 1600, he maintains that
the divorce judgment awarded him 100 percent ownership, and though he
and Tina continued to have record title, he was the “true owner” under that
judgment. Thus, according to Sherman, the divorce judgment rebutted the
presumption as a matter of law.
These arguments disregard Tina’s evidence as to the timing of events,
as well as her expert’s testimony about the effect of the 2004 deed executed
after the divorce judgment awarded Sherman the property, giving him
equitable title. Buic does not mention, much less discuss, the Evidence Code
22
section 662 presumption. Buic involved a former wife’s assertion of adverse
possession to a home following a marital dissolution judgment awarding the
property to her former husband. Post-judgment, the wife continued to reside
in the home, making all mortgage and property tax payments. (Buic v. Buic,
supra, 5 Cal.App.4th at p. 1602.) On the wife’s motion for summary
judgment in the husband’s action for constructive trust and fraud, the parties
presented conflicting evidence: according to the wife, the husband wanted
nothing to do with the house, but the husband believed his attorney had
transferred title to him and he and the wife had agreed she would stay in the
house and pay the mortgage and property taxes in lieu of rent. (Id. at p.
1603.) The Buic court reversed the summary judgment in wife’s favor,
applying a presumption that her continued possession after the dissolution
judgment awarded the home to the husband was subordinate to the
husband’s rights, not adverse, “until express notice is given to the owner of
the possessor’s adverse claim.” (Buic, at p. 1605.) It held “given the
presumption that [wife’s] continued possession was with [husband’s] consent
and his declaration that they expressly agreed her possession was
consensual, there was plainly a triable issue of material fact.” (Buic, at p.
1606.)
To the extent Buic stands for a broader meaning than simply that
conflicting evidence prevented summary judgment, it is that a dissolution
judgment’s award of property to one spouse may be overcome by the other
spouse’s valid claim of legal title to the property, including through adverse
possession, as long as he or she “make[s] a strong showing of proof on each of
the required elements.” (Buic v. Buic, supra, 5 Cal.App.4th at pp. 1604-
1605.) Sherman cites a snippet of Buic where the court stated: “Pursuant to
the parties’ dissolution judgment the property had been awarded to [the
23
husband] as his separate property. Therefore, although record title remained
in [the wife’s] name allowing her to convey the property, or an interest in it,
to a bona fide purchaser, [the husband] was the true owner pursuant to the
dissolution judgment.” (Buic, at pp. 1603-1604.) Setting aside it is dictum,
the Buic court’s remark is not inconsistent with Tina’s evidence that
Sherman was the 100 percent equitable owner following the dissolution
judgment. But here, Tina established the parties mutually agreed to change
legal title via a grant deed notwithstanding that award. In short, Buic does
not compel us to conclude the parties’ dissolution judgment rebuts the
Evidence Code section 662 title presumption arising from Sherman and
Tina’s later execution of the 2004 grant deed.
V. Sherman’s Affirmative Defenses
Sherman contends the court erred because his affirmative defenses bar
Tina’s ownership claims. He points out that the court made no findings on
them in its statement of decision, despite his request.11 Our task would
normally be to assess whether the court’s omission is harmless error, that is,
whether Sherman has shown the “ ‘evidence is sufficient to sustain a finding
in [his] favor . . . which would have the effect of countervailing or destroying
other findings.’ ” (Thompson v. Asimos, supra, 6 Cal.App.5th at p. 983.)
11 Sherman’s objection Nos. 25 through 33 to the court’s statement of
decision addressed the court’s failure to make findings on his affirmative
defenses of failure to state a cause of action, statute of limitations, laches,
unclean hands, equitable estoppel, waiver, lack of consideration, mistake and
fraud. For most of these, Sherman objected that the court did not make
“critical findings” on ultimate facts, including as to the “formation and
essential elements” of the new, subsequent, or superseding agreements
referred to elsewhere in the statement of decision. He stated the essential
elements “may provide a basis for application” of some of these defenses. He
asked that the statement be amended to include the findings, which he did
not specify.
24
But Sherman does not frame his arguments in terms of harmless error,
he merely argues the evidence establishes Tina’s claims are barred by the
statute of limitations, her unclean hands, laches, equitable estoppel, judicial
estoppel, his mistake of fact or law, lack of consideration, and waiver or
consent. Some of Sherman’s arguments—as to the absence of consideration
or mistake—are based on a now-forfeited claim of insufficient evidence, or on
facts contradicted by Tina’s evidence. Other arguments—as to waiver and
consent—we disregard as entirely unsupported by reasoned legal argument
and authority. (Sviridov v. City of San Diego (2017) 14 Cal.App.5th 514, 521
[“ ‘ “ ‘When an appellant [asserts a point] but fails to support it with reasoned
argument and citations to authority, we treat the point as waived [or
forfeited]” ’ ”; appellate court is “ ‘ “not bound to develop appellants’
arguments for them” ’ ”].) One of Sherman’s arguments is on a defense—
judicial estoppel—that he did not plead in his verified answer. Likewise,
though Sherman argued several of his affirmative defenses in his trial brief,
he did not include in it the heavily fact-dependent defenses of laches or
equitable estoppel.12 We do not consider arguments or theories, even
12 “ ‘ “ ‘[F]our elements must be present in order to apply the doctrine of
equitable estoppel: (1) the party to be estopped must be apprised of the facts;
(2) [that party] must intend that his [or her] conduct shall be acted upon, or
must so act that the party asserting the estoppel had a right to believe it
was so intended; (3) the other party must be ignorant of the true state of
facts; and (4) [the other party] must rely upon the conduct to his [or her]
injury.’ ” ’ ” (Krolikowski v. San Diego City Employees’ Retirement System
(2018) 24 Cal.App.5th 537, 564-565.) “[W]hether a [party]’s conduct is
sufficient to invoke the doctrine is a factual question entrusted to the trial
court’s discretion.” (Cuadros v. Superior Court (1992) 6 Cal.App.4th 671,
675.) “ ‘The elements required to support a defense of laches include
unreasonable delay and either acquiescence in the matter at issue or
prejudice to the defendant resulting from the delay . . . . Generally, laches is
a question of fact . . . .’ ” (Krolikowski, at p. 568.)
25
defense theories, not raised below. (Family Health Centers of San Diego v.
State Department of Health Care Services (2021) 71 Cal.App.5th 88, 98
[“ ‘ “Appellate courts are loath to reverse a judgment on grounds that the
opposing party did not have an opportunity to argue and the trial court did
not have an opportunity to consider” ’ ”]; Bardis v. Oats (2004) 119
Cal.App.4th 1, 13-14, fn. 6 [new defense theories may not be raised for the
first time on appeal]; accord, Martin v. Van Bergen (2012) 209 Cal.App.4th
84, 91 [failure to properly plead statute of limitations defense waives that
defense].) We note that Code of Civil Procedure sections 318 and 319 set out
statutes of limitation for actions arising out of the possession and title to real
property, “or to rents or profits out of same.” (Code Civ. Proc., § 319; see
Robertson v. Superior Court (2001) 90 Cal.App.4th 1319, 1327-1329 [holding
these sections govern an action for quiet title and other disputes over
ownership interests in real property].) But Sherman pleaded neither in his
answer.
Further, Sherman has not presented an adequate record permitting us
to undertake the harmless error analysis. The requirement that the court
issue a statement of decision explaining the factual and legal basis for its
decision applies to “ ‘each of the principal controverted issues at trial . . . .’ ”
(Furry v. East Bay Publishing, LLC (2018) 30 Cal.App.5th 1072, 1084; see
also F.P. v. Monier (2017) 3 Cal.5th 1099, 1115 [statement of decision must
address controverted issues].) “ ‘ “It is essential that, unless they are waived,
findings be made on every material issue raised by the pleadings and the
evidence, whether those issues are raised by denial of the allegations of the
complaint or cross-complaint, or on affirmative defenses set up in the answer
or cross-complaint.” ’ ” (Furry, at p. 1084.)
26
Here, Sherman has not established that the affirmative defenses he
raises were controverted trial issues, much less principal controverted trial
issues, such that the court’s failure to make findings prejudiced him.
(Compare Furry v. East Bay Publishing, LLC, supra, 30 Cal.App.5th at p.
1084 [plaintiff demonstrated his “wage statement claim was a principal
controverted issue at trial because it was asserted in the complaint, the
allegations were denied in [the defendant’s] answer, and . . . the issue was
raised at trial through counsel’s arguments and [plaintiff’s] submission of his
wage statements and . . . related testimony”; because the plaintiff brought the
omission to the court’s attention, the Court of Appeal would not imply
findings in defendant’s favor on that issue].) Because the parties waived
opening statements, and Sherman does not include his or Tina’s written
closing arguments in the appellate record, we cannot say whether Sherman
contested these matters in the lower court.
In reply, Sherman asks us to apply his statute of limitations, laches
and equitable estoppel affirmative defenses in any event. He points out that
new theories pertaining to questions of law on undisputed facts may be raised
for the first time on appeal. We decline to exercise our discretion to do so.
“Although appellate courts have discretion to consider an issue in the first
instance if it raises a question of law on undisputed facts, our Supreme Court
has cautioned that such discretion should be exercised rarely and only in
cases presenting an important legal issue.” (Wisner v. Dignity Health (2022)
85 Cal.App.5th 35, 44; see also Fisher v. City of Berkeley (1984) 37 Cal.3d 644,
654, fn. 3 [“parties may advance new theories on appeal when the issue posed
is purely a question of law based on undisputed facts, and involves important
questions of public policy”], abrogated on another ground as stated in
Kavanau v. Santa Monica Rent Control Bd. (1997) 16 Cal.4th 761, 774-775.)
27
Even if we were to decide the importance of these matters justified
considering them, we are unable to say on this record they raise a pure legal
question. The record contains evidence that Tina and Sherman in August
2010 stipulated to have a private judge assist them in resolving issues as to
the property, but according to Tina, they never went forward with it because
Sherman “wouldn’t appear” and the parties “never got it settled.” The
evidence suggests the possible application of equitable tolling that might
operate to suspend or extend the limitations period to ensure “ ‘ “fundamental
practicality and fairness.” ’ ” (Saint Francis Memorial Hospital v. State Dept.
of Public Health (2020) 9 Cal.5th 710, 719; Lantzy v. Centex Homes (2003) 31
Cal.4th 363, 370.) Thus, under Sherman’s own cited authority, the assertedly
uncontroverted facts raised by Sherman might “be altered by the
presentation of additional evidence” (In re Marriage of Priem (2013) 214
Cal.App.4th 505, 510-511) rendering it inappropriate to decide the issues for
the first time on appeal.
VI. Award of Rent to Tina
The trial court made the following findings when ordering Sherman to
pay Tina $67,860 in rental value minus expenses associated with the
property: “The court accepts Tina[‘s] . . . testimony that she vacated the
property on or about August 22, 2009, with the property having a reasonable
rental value of $2,100 [per] month at that time and increasing to $2,700 in
2021. [Tina] testified as to the rental value at that time, in addition
to her belief that the rental value increased at an average of $50 [per] year.
The court notes that this testimony was not rebutted by [Sherman].
“The court finds that on November 6, 2009, [Sherman] was put on
notice that [Tina] would be requesting the reasonable rental value (Watts
28
Credits equivalent) in [a] letter where [Tina] affirmatively, through counsel,
claimed the property as hers and demanded rent. . . .
“The court also accepts the testimony of [Tina] that the average
expenses associated with the property totaled $1,440 per month. That
includes mortgage principal and interest of $1,015, property tax of $175,
insurance of $100, and line of credit payments of $150.
“The court therefore orders Sherman . . . to pay Tina . . . the sum of
$67,860 in reimbursement to be paid from [Sherman’s] share of the real
property proceeds or buy-out. This figure represents one-half of the benefit
Sherman has received, less the expenses of the property and was testified to
by [Tina].”
Sherman challenges the court’s ruling on several grounds.
Incorporating all of his prior arguments by reference, he argues Tina has no
ownership interest. He argues Tina’s claim for rent is untimely under a four-
year statute of limitations (Code Civ. Proc., § 343), as her claim accrued in
November 2009, and she did not file suit until September 2018. He argues
the claim for rent is not supported by substantial evidence. In challenging
the sufficiency of the evidence, Sherman points out the court excluded some
of Tina’s testimony on the issue as improper expert opinion and argues it
abused its discretion by reversing its ruling after completion of trial.
Sherman further argues that even if Tina’s testimony was admissible and
29
accepted, it “was not sufficient to support the amounts of rent awarded by the
court.”13
We have already rejected Sherman’s challenges to the court’s rulings on
Tina’s ownership interest. His general incorporation of arguments by
reference gives us no reason to disturb the judgment. Sherman has forfeited
his substantial evidence challenge for the reasons discussed above, and also
because his arguments are entirely without cogent argument or citation to
authority. (Sviridov v. City of San Diego, supra, 14 Cal.App.5th at p. 521;
Munoz v. Patel (2022) 81 Cal.App.5th 761, 773.)
As for the statute of limitations, we question whether the proper
section is Code of Civil Procedure section 343, as a different statute, Code of
Civil Procedure section 319, not pleaded in Sherman’s answer, sets out a five-
year statute of limitation for an action arising out of title to real property “or
to rents or profits out of same.” But regardless of the applicable limitations
period, again, there is no indication that during trial Sherman raised a
statute of limitations defense, which was his burden to prove. (Pollock v. Tri-
Modal Distribution Services, Inc. (2021) 11 Cal.5th 918, 945.) “It is well-
13 Sherman objected to the court’s statement of decision finding that Tina
was entitled to recover rent (objection Nos. 21-24). He complained that the
court referred to an unpleaded cause of action (for “recoverable
costs/reimbursements owed by defendant to plaintiff as a result of his
exclusive use and possession of the property,” capitalization omitted) whereas
Tina’s third cause of action was for unjust enrichment. He claimed the
statement of decision on this point omitted critical findings as to the elements
of unjust enrichment, whether there was any agreement entitling Tina to
rent, whether he has been unjustly enriched, and the timeframe for which
Tina was entitled to recover rent. But on appeal, Sherman contradicts one of
his objections, acknowledging that the court awarded Tina rent “from
September 2009 through present.” As to all of them, Sherman does not
explain on appeal how these particular points warrant reversal.
30
settled that the failure to raise an issue in the trial court typically forfeits on
appeal any claim of error based on that issue” unless it presents a pure
question of law or involves undisputed facts. (Howitson v. Evans Hotels, LLC
(2022) 81 Cal.App.5th 475, 489.) When a cause of action accrues is generally
a question of fact we review for substantial evidence. (Madani v. Rabinowitz
(2020) 45 Cal.App.5th 602, 607.) And, as we have pointed out above, there
are indications in the record that the parties sought to resolve their disputes
informally, taking accrual outside a pure question of law.
We have serious concerns about Tina’s delay in filing suit. “Laches
may bar relief in equity to those who neglect their rights, where such neglect
operates to the detriment of others.” (Bono v. Clark (2002) 103 Cal.App.4th
1409, 1417.) But “unreasonable delay by the plaintiff is not sufficient to
establish laches. There must also be prejudice to the defendant resulting
from the delay or acquiescence by the plaintiff.” (Ragan v. City of Hawthorne
(1989) 212 Cal.App.3d 1361, 1368, fn. omitted.) And, “ ‘[p]rejudice is never
presumed; rather it must be affirmatively demonstrated by the defendant in
order to sustain his burdens of proof and the production of evidence on the
issue.’ ” (Piscioneri v. City of Ontario (2002) 95 Cal.App.4th 1037, 1050,
quoting Miller v. Eisenhower Medical Center (1980) 27 Cal.3d 614, 624;
Ragan, at p. 1368.) Sherman has not pointed to evidence establishing such
prejudice.
VII. Sherman’s Cross-Complaint
As stated above, the trial court ruled against Sherman on his cross-
complaint’s causes of action. On appeal, Sherman challenges only the elder
abuse and slander of title rulings. Pointing out he objected to the court’s
31
statement of decision,14 he contends those claims were not barred by the
statute of limitations as the court ruled, and that his elder abuse claim was
supported by substantial evidence.
A. Elder Abuse Claim
On Sherman’s claim for elder abuse, the trial court found (1) the claim
was time barred by the four-year statute of limitations; (2) Sherman was not
an elder when the conduct underlying the claim—Tina’s resumption of title
via the 2004 grant deed—occurred; and (3) Sherman was on notice of Tina’s
ownership claim to the property in 2010.
Sherman contends his evidence and undisputed facts established each
of the essential elements of elder abuse. The premise of this argument is his
assertion, contradicted by evidence from Tina and her expert, that “the
evidence established [he] owned 100 [percent] of the property in May of
2018.” He recites additional facts in his favor. We do not address the
contentions, as Sherman forfeited any substantial evidence arguments for his
deficiencies identified above.
As for the statute of limitations, Sherman further contends “the alleged
specific conduct giving rise the [sic] Sherman’s elder abuse claim occurred
after May 2018.” But the trial court expressly found that “[t]he conduct
14 Sherman states he objected to the court’s statement of decision in part
on grounds the court’s findings were “based on the wrong date of occurrence.”
The assertion is not supported by the record. Sherman’s objection Nos. 34, 35
and 36 pertained to his cross-complaint’s causes of action. In them, he
complained the court’s statement of decision “omits findings of critical facts”
as to these claims, and thus the statement “contains findings outside the
issues raised.” He asked the court to amend its statement to “address the
issues raised in the cross-complaint” for each of these causes of action. None
of these objections mentioned the date of the occurrence(s) giving rise to his
claims.
32
forming the basis for liability for all causes of action in Sherman’s cross[-
]complaint is Tina’s resumption on title to the subject property in 2004 per
the 2004 grant deed.” (Some capitalization omitted.) “We must accept as
true all evidence supporting the trial court’s findings, resolving every conflict
in favor of the judgment. [Citation.] We do not determine credibility or
reweigh the evidence. [Citation.] If substantial evidence supports the
judgment, reversal is not warranted even if facts exist that would support a
contrary finding.” (Curcio v. Pels (2020) 47 Cal.App.5th 1, 12.)
B. Slander of Title
The trial court found Sherman failed to meet his burden of proving a
slander of title occurred, and that the claim was also barred by the statute of
limitations. “ ‘The elements of a cause of action for slander of title are “(1) a
publication, (2) which is without privilege or justification, (3) which is false,
and (4) which causes direct and immediate pecuniary loss.” ’ ” (RGC
Gaslamp, LLC v. Ehmcke Sheet Metal Co., Inc. (2020) 56 Cal.App.5th 413,
434, fn. 14.) “The substantial evidence standard of review takes on a unique
formulation where, as here, ‘the trier of fact has expressly . . . concluded that
the party with the burden of proof did not carry the burden and that party
appeals.’ [Citations.] ‘[W]here the issue on appeal turns on a failure of proof
at trial, the question for a reviewing court becomes whether the evidence
compels a finding in favor of the appellant as a matter of law.’ [Citation.]
Specifically, we ask ‘whether the appellant’s evidence was (1) “uncontradicted
and unimpeached” and (2) “of such a character and weight as to leave no
room for a judicial determination that it was insufficient to support a
finding.” ’ ” (In re S.G. (2021) 71 Cal.App.5th 654, 671.)
Sherman does not apply these principles. He does not squarely address
the court’s ruling as to his failure to meet his burden of proof, discuss the
33
elements of the claim or the evidence he presented on them, if any. He only
contends the court erred by its statute of limitations ruling.15
The court’s unchallenged finding that Sherman failed in his burden to
demonstrate a slander of title permits us to uphold the judgment against him
on that claim. We need not address the statute of limitations.
DISPOSITION
The judgment is affirmed.
O’ROURKE, Acting P. J.
WE CONCUR:
IRION, J.
DATO, J.
15 According to Sherman, his cause of action is based on Tina’s failure in
2015 to quitclaim title back to him; he asserts the “alleged conduct giving rise
to this cause of action occurred in 2015 when Tina published her claim that
she owned 50 [percent] of the property to lender(s) with whom Sherman
attempted to consolidate refinance and [home equity] loans in 2015.” (Some
capitalization omitted.) Sherman cites to his cross-complaint’s allegations,
however, not to any evidence he or Tina presented at trial.
34