Filed 11/15/18 Gutierrez-Zamora v. Gutierrez CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Mario Gutierrez appeals from a probate court order granting the petition filed by Cecilia Yesenia Gutierrez-Zamora, as successor trustee of the Maria Gutierrez Revocable Trust (the Trust). The order required Mario to quitclaim his one-third interest in real property located in Oakland, California (the Property) to the Trust.[1] Under the terms of the Trust, as amended, the Property is to be sold and, after the payment of various expenses, the sale proceeds are to be distributed among Maria’s eight living children, including Cecilia and Mario.

On appeal, Mario contends he owns the Property as the surviving joint tenant. We conclude Mario waived this argument by failing to make it in the probate court. Mario also contends the probate court erred by finding a resulting trust, and by considering the claims in Cecilia’s verified petition as evidence. We disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

We summarize the facts relevant to the issues on appeal.

1. The Trust and its Amendments

On November 20, 2009, Maria Gutierrez created a revocable trust, naming herself as trustee.[2] The Trust lists Maria’s interest in the Property as a Trust asset. The Trust states Maria’s husband died in June 2009, that Maria had eight living children, including Mario and Cecilia, and it names Mario and one of his sisters, Mirella Gutierrez, as successor trustees.

On October 11, 2012, Maria amended her trust. The amendments provide that, upon Maria’s death, each of her eight children would receive a percentage of the trust property. They also provide that, after her death, Mario “shall have first right to purchase the trust’s interest” in the Property at fair market value, but this right would lapse if Mario did not do so within 12 months of Maria’s death. The amendments name Jose Gutierrez as first successor trustee and Cecilia as second successor trustee.

2. Maria’s Death and the Petition

Maria died on February 18, 2015. Jose resigned as successor trustee in October 2015, leaving Cecilia as the successor trustee. On February 29, 2016, Cecilia, acting as successor trustee, filed a verified petition for an order “authorizing and directing [the] conveyance of real property from third party and for instructions.” (Prob. Code, §§ 850, 17200.)[3] Cecilia claimed that when her parents purchased the Property in 1979, they “had insufficient income for them to obtain a loan,” so they added Mario’s name to the deed to qualify for a loan to purchase the Property. The three of them agreed that Mario’s name “was on the deed as an accommodation to his parents and nothing more, he was not to have an ownership interest in the Real Property.”

The Petition stated Mario asserts “a one-third ownership interest” in the Property. Cecilia requested the probate court to “void the deed under which . . . [Mario] bases his claim and order him to execute a quit claim deed conveying his entire interest” in the Property to Cecilia, as trustee of the Trust. Cecilia petitioned for instructions that she, as successor trustee, was not required to sell the Property to Mario because his right to purchase the Trust’s interest in the Property had lapsed.

3. Mario’s Response

On June 15, 2016, acting in pro per, Mario filed a verified response,[4] attaching documents and correspondence, including a copy of a 1979 grant deed indicating the Property was granted to Maria, her husband, and Mario as joint tenants. Mario also attached a preliminary report prepared by First American Title Company in 2016 indicating the Trust had an “undivided 2/3 interest” in the Property and Mario had “an undivided 1/3 interest as tenants in common.”

In his response, Mario stated he provided the down payment for his parents to purchase the Property in 1979, his mother resided there until her death, and Mario resided there until 1987. Mario claimed he continued to provide financial support, including by making mortgage payments. Mario acknowledged that, after the death of his father, Maria created the Trust.

Mario stated he did not contest the issue of whether his right to purchase the Property had lapsed. Mario continued, “I do not . . . dispute that the time has lapsed for me to purchase the interest, but I do dispute any allegations that I wish for a share I am not entitled to. As a matter of fact, I had been more than too happy to have the property sold to have all the siblings have their shares pursuant to the ‘Trust’ and its specific conditions of distributions. I support the public sale of . . . said ‘Real Property’ for the courts to find resolution so we may come [to be] at peace and respect the wishes of our parents.” Mario stated, “I do not assert that I am entitled to a third of the ‘Real Property.’ . . . . I . . . invested in the home of our parents so she would have a home to comfortably live in without expectation of financial restitution.” Mario requested the court to “review and enforce the conditions set forth in the ‘Trust.’ ”

On June 28, 2016, Cecilia filed a memorandum of points and authorities, arguing Mario’s response failed “to state facts sufficient to constitute a defense” to her petition. Cecilia argued the only interest Mario “held in the residence was as the trustee of a resulting trust” because his name was added to the grant deed solely “as an accommodation to help his parents obtain a loan to purchase the residence.”

4. The Hearings on the Petition

On May 11, 2016, the court held its first hearing on the petition. Speaking with the help of an interpreter, Mario stated he was “not in accordance with the petition, because he doesn’t believe that they are [the] owner [one] hundred percent of the property, because at the beginning, it was 50 percent of the property, but he gave most of the 50 percent to the property. Only stayed with one-third.” The court noted Mario was objecting to the petition on the ground that he owned a one-third interest in the Property. The court continued the hearing to provide Mario an opportunity to obtain legal counsel.

At the July 15, 2016 hearing, Mario, appearing in pro per, was assisted by a court interpreter. Based on the court’s review of Mario’s response, the court stated Mario had “no opposition to what . . . [Cecilia] wants to do, and essentially is conceding that the home is owned by the trust. He just wants it to be sold and distributed.” Mario responded, speaking through the interpreter, that his siblings wanted to use the money from the sale of the house to pay for legal expenses. In English, Mario stated “I still own the property, because I decide[d] to give to my father a little more. I[t] used to be half and half. Now I have one-third.” Mario conceded that his right to purchase the Property had lapsed, but argued it was “[b]ecause of them.”

The court pointed out to Mario that he told the court in his papers he did not own the Property. Mario responded “No, no. No, no. I own the property.” The court quoted from Mario’s response, pointing out Mario stated, “ ‘I do not assert that I am entitled to a third of the real property.’ ” Mario responded that his siblings refused his offers “to buy the house,” and his siblings refused to send him rent money. The court noted Mario “filed a document conceding their arguments.”

Addressing Mario, the court indicated, “in order to sell this property, we have to have title fully in the trust, and with your sister as trustee. So there’s a couple ways to do that, one of which is for you to sign over your interest in the property” by executing a “quitclaim deed . . . . [¶] So that’s sort of where we are. They’re never going to be able to sell this property until you do that. And I understand you want to sell the property, so—what are your thoughts?”

After a conference with his daughter and neighbor, Mario stated “Okay.” When Mario was informed his interest in the Property would go to the Trust, he responded “No, no,” and stated he was confused. The court informed Mario that the court was proposing “the house be fully owned by the trust. They tell me it’s their intention to sell it. And the beneficiaries of a trust have lots of rights. That’s all I can tell you.”

5. The Court’s Order

On the same day, the court signed a proposed order prepared by counsel for Cecilia. The order granted the petition. The court found Mario “holds legal title to a one-third interest” in the Property “as trustee of a resulting trust for the benefit of the Petitioner as Trustee of” the Trust. The court found Mario’s right to purchase the Property had lapsed, and the court ordered him to “execute a quit claim deed conveying his entire interest in the . . . Property to Petitioner . . . as Trustee of” the Trust. The court instructed Cecilia that she was not obliged to sell the Trust’s interest in the Property to Mario. Mario timely appealed.

DISCUSSION

On appeal, Mario contends he owns the Property as the surviving joint tenant, and the probate court erred in finding the Trust held an interest in the Property, and in finding the existence of a resulting trust. Mario also contends the probate court erred by failing to require “competent, substantial evidence in support of the Petition,” and “in failing to consider and issue findings of fact on all of Mario’s evidence and objections to the Petition.” We disagree and affirm.[5]

I.

Mario Waived the Argument that He Owns the Property as the Surviving Joint Tenant

Mario’s first argument is that the probate court erred in finding that the Trust had an interest in the Property. Mario relies on the 1979 grant deed, which names him as a joint tenant of the Property. According to Mario, his parents’ interests in the Property were not properly transferred to the Trust, and, therefore, he became the owner of the Property when his parents died. Cecilia responds that there was substantial evidence the joint tenancy was severed, that Maria’s husband’s interest in the Property passed to Maria, and that she transferred her interest to the Trust.

“ ‘Generally, issues raised for the first time on appeal which were not litigated in the trial court are waived. [Citations.]’ ” (Newton v. Clemons (2003) 110 Cal.App.4th 1, 11.) “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. [Citation.] In our adversarial system, each party has the obligation to raise any issue or infirmity that might subject the ensuing judgment to attack.” (JRS Products, Inc. v. Matsushita Electric Corp. of America (2004) 115 Cal.App.4th 168, 178.)

Here, Mario did not argue before the probate court that he was entitled to 100 percent of the Property as the surviving joint tenant. We reject Mario’s contentions to the contrary. At the May 11, 2016 hearing, speaking with the help of an interpreter, Mario stated he originally owned half of the Property, but he gave up part of that interest, and now owned “one-third” of the Property. At the second hearing, Mario made the same claim, stating, in English, that “I still own the property . . . because I decide[d] to give to my father a little more. I[t] used to be half and half. Now I have one-third.”

Later in the same hearing, Mario stated, “I own the property. . . . I bought that property a long time ago, when I was single.” But this statement must be interpreted in the context of his earlier statements regarding his ownership interest in one-third of the Property. In addition, in a February 12, 2016 letter that Mario attached to his response, Cecilia stated, “Mario argues that our parent’s home has ‘always belonged to him,’ and that I should be thankful he gave back my father’s portion after his passing in 2009.” Mario attached a letter from his sister who stated Mario was the “owner of a third of the property.” Mario’s uncle stated Mario “did buy the home himself,” but contains no statement regarding the percentage of Mario’s interest in the Property.

Inconsistently, in his response to the petition, Mario stated he was not “entitled to a third of the ‘Real Property.’ ”^[6] But this statement cannot be construed as an argument he was entitled to all of the Property as the surviving joint tenant. Instead, he stated in his response that he did not contest the Trust, he agreed the Property should be sold in a public sale, and he agreed the proceeds should be distributed to himself and his siblings in accordance with the terms of the Trust.

At the July 15, 2016 hearing, Mario continued to argue he was entitled to

purchase the Trust’s interest in the Property, which implies he did not view himself as

a surviving joint tenant. Mario did not request the court to consider whether the joint tenancy had been properly severed, or whether Mario owned all of the Property as the surviving joint tenant, so we deem these arguments waived. (Newton v. Clemons, supra, 110 Cal.App.4th at p. 11.)

II.

Substantial Evidence Supports the Probate Court’s Finding of a Resulting Trust

Next, Mario contends the court erred by finding the existence of a resulting trust. We disagree.

“ ‘A resulting trust arises by operation of law from a transfer of property under circumstances showing that the transferee was not intended to take the beneficial interest. [Citations.] Such a resulting trust carries out and enforces the inferred intent of the parties. [Citations.]’ . . . It differs from an express trust in that it arises by operation of law, from the particular facts and circumstances, and thus it is not essential to prove an express or written agreement to enforce such a trust. [Citations.] The trustee has no duties to perform, no trust to administer and no purpose to carry out except the single task of holding onto or conveying the property to the beneficiary. [Citations.]”

(Fidelity National Title Ins. Co. v. Schroeder (2009) 179 Cal.App.4th 834, 847–848.)

In a resulting trust case, “[t]he substantial evidence rule . . . applies on appeal, [and it] applies without regard to the standard of proof applicable at trial.” (In re Marriage of Ruelas (2007) 154 Cal.App.4th 339, 345.) “In reviewing the trial court’s decision, we must ‘accept as true all evidence tending to establish the correctness of the finding as made, taking into account, as well, all inferences which might reasonably have been thought by the trial court to lead to the same conclusion. Every substantial conflict in the testimony is . . . to be resolved in favor of the finding.’ ” (Johnson v. Johnson (1987) 192 Cal.App.3d 551, 553–554.)

Here, Cecilia’s verified petition provides that Maria and her husband purchased the Property in 1979, and, after her husband died in 2009, Maria conveyed her interest

in the Property to the Trust. Cecilia attached a copy of the Trust, and its 2012 amendments, to her verified petition. It identifies Maria’s interest in the Property as

an asset of the Trust. The verified petition states that, in 1979, Maria “and her husband had insufficient income for them to obtain a loan to purchase the Real Property. Solely

in order for . . . [Maria] and her husband to qualify for a loan . . . [Maria], her husband and . . . [Mario] agreed that . . . [Mario’s name] would be added to the deed. The three

of them agreed that . . . [Mario’s] name was on the deed as an accommodation to his parents and nothing more, he was not to have an ownership interest in the Real Property.”

This evidence was sufficient for the court to find that Mario held legal title to

a one-third interest in the Property as trustee of a resulting trust. On appeal, Mario claims there was no agreement that his parents were the equitable owners of the Property. But

a resulting trust enforces the inferred intent of the parties, and “it is not essential to

prove an express or written agreement to enforce such a trust.” (Fidelity National

Title Ins. Co. v. Schroeder, supra, 179 Cal.App.4th at pp. 847–848.) The verified

petition states Mario’s “name was on the deed as an accommodation to his parents and nothing more . . . .” While Mario claims otherwise, we must resolve conflicts in the evidence in favor of the court’s findings. (Johnson v. Johnson, supra, 192 Cal.App.3d

at pp. 553–554.)

Mario contends the equitable theory of a resulting trust does not apply because Mario and his parents were named on the grant deed as joint tenants and, therefore, they “each held legal title to the Property.” But the court found there was a resulting trust only with respect to the one-third interest Mario held in the Property, which interest derived from Mario’s inclusion on the grant deed. The probate court had the power to do so. (Martin v. Kehl (1983) 145 Cal.App.3d 228, 243 [where plaintiff contributed half the purchase price, Court of Appeal determined trial court could impose resulting trust in one-half the proceeds from the sale of the property].)

Mario claims “[h]e alone paid for the house, making the down payment, paying the mortgage balance, and covering the costs of taxes, repairs, etc.” But the verified petition states Maria and her husband purchased the Property, and they “paid all of the expenses associated with the Real Property including all of the property taxes.” We are required to resolve this conflict in the evidence in favor of the probate court’s finding. (Johnson v. Johnson, supra, 192 Cal.App.3d at pp. 553–554.)

Finally, Mario speculates that if his parents “truly added Mario’s name to the deed merely to secure a loan, they would not have added him as a joint tenant with right to survivorship [and] then never recorded any legal document altering that ownership position in the 38 years after they originally took title.” We decline this “invitation to draw unfavorable inferences from the facts found by the trial court.” (In re Marriage of Ruelas, supra, 154 Cal.App.4th at p. 344.)

III.

The Probate Court Did Not Rely on Improper Evidence and

Mario Did Not Request a Statement of Decision

Mario contends the court erred in considering Cecilia’s “affidavits and petition as evidence . . . .” Relying on section 1022, which limits consideration of verified petitions to uncontested proceedings, Mario contends it was improper for the court to consider Cecilia’s petition as evidence. Mario also argues the court erred “in failing to consider and issue findings of fact on all of Mario’s evidence and objections to the petition.”

We are not persuaded. With regard to the first contention, Mario relies on Evangelho v. Presoto (1998) 67 Cal.App.4th 615 (Evangelho), but the case is unhelpful to his position. In Evangelho, the court stated that “ ‘where the parties do not object to the use of affidavits in evidence, and where both parties adopt that means of supporting their positions, the parties cannot question the propriety of the procedure on appeal. [Citation.] . . . The trustee’s petition and [the objector’s] written objections were both verified in the form of declarations under the penalty of perjury. [Citation.] Absent an objection, these documents were properly considered as evidence. [Citations.]’ ” (Id. at p. 620.)

Here, like in Evangelho, Mario did not object to the court’s consideration of Cecilia’s verified petition, and Mario himself filed a verified response to the petition. Therefore, Mario’s reliance on Estate of Lensch (2009) 177 Cal.App.4th 667 is inapposite because, in Estate of Lensch, the respondent filed an opposition to the petition specifically objecting that the petition was inadmissible and not proper evidence, and there were multiple requests for an evidentiary hearing. (Id. at p. 677.) Mario made no similar objection, and he did not request an evidentiary hearing.

Mario relies on Estate of Duncan (1969) 1 Cal.App.3d 212,[7] in which the Court of Appeal stated that, if there is a contested hearing, then “[i]n the absence of a stipulation, each allegation of the verified petitions and the facts in the affidavit filed . . . had to be established by competent evidence.” (Id. at p. 215.) But, as explained in Estate of Bennett (2008) 163 Cal.App.4th 1303, “the restriction on the use of declarations in contested probate hearings is inapplicable when ‘the parties d[o] not object to the use of affidavits in evidence and both parties adopt[] that means of supporting their positions.’ ” (Id. at p. 1309.)

In his reply brief, Mario contends his failure to object is not dispositive because the parties “did not exclusively rely on affidavits as the sole form of evidence.” We are not persuaded. In Evangelho, the court determined that, based on the parties’ failure to object, it was proper for the court to consider as evidence “trust documents and some canceled checks,” without the need to formally admit them into evidence. (Evangelho, supra, 67 Cal.App.4th at p. 621.) The same rule applies here. We reject Mario’s contention that attaching documents to his response somehow obviated the requirement for Mario to object to the court’s consideration of Cecilia’s verified petition as evidence.

Mario’s final argument is that it was “reversible error” for the probate court to

fail to issue “findings of fact on Mario’s evidence and objections.” We disagree.

Mario did not request a statement of decision under Code of Civil Procedure section 632, and this provision applies in probate proceedings. (Guardianship of Pankey (1974) 38 Cal.App.3d 919, 928.) We presume the probate court’s order is correct, and error must be affirmatively shown. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.)

Here, Mario fails to establish the probate court refused to consider his claims regarding ownership of the Property. To the contrary, the probate court continued the hearing on the petition to provide Mario an opportunity to obtain legal counsel and respond to the petition. A court interpreter assisted Mario at the second hearing, and the court also permitted Mario to present his arguments in English. Contrary to Mario’s contention, we discern no violation of section 1046, which requires the probate court to “hear and determine any matter at issue and any response or objection presented, consider evidence presented, and make appropriate orders.”

DISPOSITION

The judgment is affirmed. Cecilia, as successor trustee of the Trust, is entitled to costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

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Jones, P. J.

We concur:

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Simons, J.

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Bruiniers, J.

A149211