Bernier v. Hecker

Filed 1/12/07  Bernier v. Hecker CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

                        Appeal from a judgment of the Superior Court of Orange County, Charles Margines, Judge.  Reversed with directions.

                        Greenberg Traurig, Mark G. Tratos and Rob L. Phillips, for Defendant and Appellant.

                        Law Offices of Sherri S. Shafizadeh and Sherri S. Shafizadeh for Plaintiff and Respondent.

                        Michelle Hecker appeals from a judgment in favor of Denise Bernier in this quiet title and breach of contract action.  The judgment set aside a deed to Bernier and Hecker as joint tenants, declared Bernier was the sole owner of the property, and awarded her damages.  Hecker argues the trial court erred in denying her motion in limine to exclude evidence of an oral agreement that Bernier intended the deed as a probate avoidance device, to take effect only upon her death. We agree and reverse. 

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                        In 2000, Bernier purchased a residence with her friend Sheila Nyberg.[1]  A few months later, Nyberg decided to buy a place of her own, and they agreed Bernier would buy out Nyberg and assume the mortgage.  But there was a problem.  When Bernier applied for a new loan, she learned her income would be insufficient until an anticipated spousal support order was signed. 

                        Bernier asked Hecker, her daughter, to cosign the loan application.  Hecker had just graduated from college and was living at home, working in sales.  She agreed.  Loan documents were prepared that listed both mother and daughter as borrowers, along with a deed in which Bernier and Nyberg conveyed the residence to Bernier and Hecker as joint tenants.  Bernier testified that she had included Hecker on the deed in the belief that Hecker had to be an owner of the residence to join in the mortgage loan application.  It turned out that Hecker's credit was not necessary, because the support order was signed before the closing date set for the loan.  Although the record is not clear, it appears the parties did not change the loan application, and both appeared as borrowers on the loan.  

                        What is clear is that on September 7, 2000, the deed in question was executed, conveying the residence to Bernier and Hecker as joint tenants.[2]  It was recorded the following day. 

                        Bernier testified that before signing the deed, she discussed the situation with Hecker and Nyberg (a family friend of long standing).  They agreed it would be a good idea to keep Hecker's name on the deed, to avoid probate when Bernier died.  Bernier explained she had just gone through a divorce, and â€