The opinion
Filed 9/30/21; Certified for Publication 10/25/21 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
SHARON MCMILLIN, B298990
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NC060255)
v.
SOM RATHMENY EARE,
Defendant and Appellant;
JOSHUA NATHAN MCMILLIN,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mark C. Kim, Judge. Reversed and remanded
with instructions.
Law Offices of David J. Duchrow and David J. Duchrow;
The Law Offices of Marc Coleman and Marc Coleman for
Defendant and Appellant Som Rathmeny Eare.
The Law Office of Curtis W. Herron and Curtis W. Herron
for Plaintiff and Respondent Sharon McMillin.
No appearance by Defendant and Respondent Joshua
McMillin.
_________________________
This is a dispute over ownership of two parcels of real
property. The disputing parties are a wife, her husband, and the
husband’s mother. What started as a contentious dissolution
over community property and third-party interests in the two
real properties evolved into a civil complaint and cross-complaint,
each seeking to quiet title to the two properties. The case is
further complicated by numerous notarized grant deeds executed
by individuals transferring titles to one another. Because we
disagree with the trial court on the validity of the oral conditions
attached to the challenged deeds, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
A. Relevant Factual Background
In 2007, Joshua McMillin met Som Eare. They married on
October 19, 2007. Joshua McMillin and Sarah McMillin are
adult siblings. Their mother is Sharon McMillin. 1
Two parcels of real property are at issue. The first is
located at 1620 Gundry Avenue in Long Beach, California
(Gundry property); it is a four-plex that generates rental income.
The second is a residential property located at 2153 E. Anaheim
Street in Long Beach, California (Anaheim property).
B. Dissolution Action
On October 22, 2013, Som filed a petition for dissolution of
her marriage to Joshua, case No. ND071535. Som obtained a
restraining order against Joshua, requiring him to move out of
the house they lived in—the Anaheim property.
1 Because the parties share the same last name, we refer to
them by their first names. While Som is sometimes referred to as
Laura McMillin in the record, we refer to her as Som.
2
On October 7, 2014, during a hearing on Som’s Request for
Order re: exclusive use and control of the Anaheim residence,
Joshua and Som stipulated that Maga View, Inc.—a company
Som owned and operated prior to her marriage—held title to the
Anaheim property at one point during the marriage. The family
law court found the issue of property ownership to be an issue for
trial. Som was awarded use and possession of the Anaheim
property pending trial and Joshua was ordered to contribute
$1,717 toward the monthly mortgage.
C. Civil Action
Before the dissolution action was concluded, Sharon filed a
civil complaint on August 31, 2015 against Joshua and Som,
alleging six causes of action: theft in violation of Penal Code
section 484, subdivision (a); slander of title; constructive trust;
declaratory relief; quiet title; and cancellation of deeds. She
alleged the following:
1. The Gundry Property
On May 17, 2010, Sharon purchased the Gundry property
and took title in her name. Two months later, on July 29, 2010,
she “executed a notarized Grant Deed which, if recorded, would
convey the Gundry [property] to her son, Joshua.” Sharon
“instructed Joshua to safely hold the [grant deed], and to not
record it until and unless such time as either [Sharon] died or
Joshua purchased the Gundry [property] from [her].” At the time
she gave the grant deed to Joshua, she “did not intend to deliver
it to Joshua for the purpose of immediately passing title to
Joshua or to any other person or entity.” Joshua had “agreed to
safely hold” the grant deed and “to not record it until . . . he
purchased the Gundry [property]” from Sharon or upon her
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death. Sharon “never received any consideration” for the transfer
of any interest in the Gundry property.
2. The Anaheim Property
On August 31, 2010, a revocable land trust called 2153 E.
Anaheim S. J. McMillin Trust (Trust 1) was created, naming
Joshua as the trustee and Sharon as the beneficiary. On
September 8, 2010, Trust 1 purchased the Anaheim property and
took title in the name of the trust.
Sharon wanted, but was unable, to refinance the Anaheim
property. She thus “agreed” with Joshua and her daughter Sarah
“that the [Anaheim] property would be transferred to Sarah, that
Sarah would refinance the property, and that the property would
subsequently be transferred back” to Sharon. They agreed that
Sarah and Joshua would hold title to the Anaheim property in
trust for Sharon, and that Sharon would be the “equitable owner”
of the property at all times. Any transfer of the property “would
be made without consideration as an accommodation only for the
purpose of refinancing the property.” Sharon referred to this
agreement between her, Joshua, and Sarah as the “Refinancing
Agreement.”
Sharon alleged: “In performance of the Refinancing
Agreement, a number of purported transfers of the Anaheim
[property] were made.” On September 17, 2010, Trust 1
transferred title to the Anaheim property to Sharon via a
notarized grant deed. Three days later, on September 20, 2010,
Sharon transferred title to the Anaheim property to Sarah via
grant deed. Joshua—acting as Sharon’s “attorney in fact” and
“Trustee on behalf of [Trust 1]”—recorded both deeds on October
13, 2010.
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The following year, on June 2, 2011, 2153 E. Anaheim
Street Long Beach Trust (Trust 2) was created, naming Joshua
as the trustee and Sharon as beneficiary.
On July 18, 2011, Sarah—“on behalf of [Sharon], for estate
planning purposes”—executed a grant deed transferring the
Anaheim property to Joshua. That same day, Sarah signed
another grant deed transferring the Anaheim property to Trust 2.
The following year, on July 12, 2012, Sarah recorded the deed
transferring the Anaheim property to Joshua. More than a year
later, on October 16, 2013, Sarah recorded the deed transferring
the Anaheim property to Trust 2.
Throughout her complaint, Sharon refers to all the
executed, notarized grant deeds between her, Sarah, Joshua, and
Trusts 1 and 2 as “void” or “purported” transfers or “incorrectly”
transferred property. According to Sharon, the deeds had “no
effect to transfer any title interest” because Sharon remained the
owner of the Anaheim property since her initial purchase on
October 13, 2010. Sharon had “instructed Joshua to safely hold”
the July 18, 2011 grant deed transferring the Anaheim Property
from Sarah to Joshua and “to not record it until . . . either
[Sharon] died or Joshua purchased” the Anaheim property from
Sharon. Sharon “did not intend to deliver [the deed] to Joshua
for the purpose of immediately passing title to Joshua.”
On October 16, 2013, Som recorded the July 29, 2010 grant
deed transferring the Gundry property from Sharon to Joshua
and the July 18, 2011 grant deed transferring the Anaheim
property from Sarah to Joshua with the Los Angeles County
Recorder’s Office. This was done “without [Sharon’s] knowledge
or permission.”
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Based on the foregoing, Sharon alleged Som “feloniously
stole and fraudulently appropriated property which was
entrusted to her,” i.e., the deeds to the Gundry and Anaheim
properties. In recording the deeds with the Los Angeles County
Recorder’s Office, Som “knowingly and designedly, by false
pretense, defrauded [Sharon] of her real property”—which
Sharon alleged constitutes a violation of Penal Code section 484,
subdivision (a). This was the foundation for the cause of action
for theft.
As to slander of title, Sharon alleged Som “willfully,
wrongfully, [and] without justification” caused the grant deeds to
the two properties to be “published and recorded” with the Los
Angeles County Recorder’s Office. In doing so, Som “attempt[ed]
to falsely characterize the Gundry [property] and the Anaheim
[property] as community property jointly owned by Som and her
husband, Joshua.” The grant deeds to the two properties were
“void” and “false,” causing “doubt to be cast on [Sharon’s] title” to
both properties.
As to the causes of action for unjust enrichment and
constructive trust, Sharon alleged Joshua and Som were
“unjustly enriched and have benefited at the direct expense” of
Sharon because the two properties were solely owned by Sharon
and were never purchased by Joshua or Som. As a result of
Som’s “fraudulent and malicious slander” of Sharon’s title to the
properties, Som is an involuntary trustee, holding the properties,
their rents, issues, royalties, and profits in constructive trust for
Sharon, “with the duty to convey” them back to Sharon.
As for the request for declaratory relief, Sharon asked the
court to make “a judicial determination” declaring her the sole
owner of the Gundry and Anaheim properties. With respect to
the quiet title cause of action, Sharon alleged Joshua and Som
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have claimed an interest adverse to Sharon’s title in both
properties “without any right,” and sought to establish her title
free and clear.
Finally, Sharon asked the court to cancel the two deeds
Som recorded with the Los Angeles County Recorder’s Office on
October 16, 2013: the July 20, 2010 grant deed transferring the
Gundry property to Joshua (the Gundry deed) and the July 18,
2011 grant deed transferring the Anaheim property to Joshua
(the Anaheim deed). Sharon alleged Som knew at the time of
recording that Sharon “did not intend for Som or Joshua to have
any interest” in either property until Sharon’s death or until
Joshua purchased the properties from Sharon.
D. Cross-Complaint
On October 20, 2015, Som filed an amended cross-
complaint against Sharon, Joshua, and Sarah seeking, among
other things, to quiet title to the two real properties and to set
aside fraudulent transfers. The trial court entered judgment
against Som on the cross-complaint, finding her not credible. We
do not discuss the cross-complaint as it is not before us on
appeal. 2
E. The Dissolution Judgment
In the meantime, the judgment of dissolution filed on
September 11, 2018 in Som’s and Joshua’s family law case
included the following terms:
2 In her opening brief, Som presents 10 arguments on appeal;
none of them raise issues about the cross-complaint. For that
reason, we do not address the cross-complaint beyond this point.
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• The court found Joshua’s “credibility to be worse than
that of” Som.
• The court found “the balance of the hardships to
favor [Som]. [Som] brought significant money and property into
the marriage and it produced income. [Joshua] brought no assets
into the marriage and inhibited [Som’s] income by his actions
[and Som] runs her nonprofit out of the residence she occupies
[i.e., the Anaheim property].” The court “will not remove her
from the residence until the issue of its ownership is decided.”
• Som was “awarded exclusive use and possession of
the Anaheim property . . . pending the conclusion of the civil
case” and “shall be reinstated as a beneficiary of the homeowner’s
policy insuring the Anaheim property.”
• “All issues regarding the properties and related
transactions not resolved in the civil case are reserved for
adjudication in the family law case. These include Epstein
credits[ 3]; Watts charges[ 4]; Family Code § 2640 reimbursement;
reimbursement for rent proceeds collected by [Joshua] after
separation; reimbursement for all monies paid by [Som] and
[Joshua] to claimant [Sharon] during marriage, including but not
limited to payments to her home equity line of credit . . . and
characterization of the following corporations and trusts related
to the Gundry and Anaheim properties: Maga View, Inc.; . . .
2153 E. Anaheim Street S. J. McMillin Trust dated August 31,
2010; and 2153 E. Anaheim Street, Long Beach Trust dated June
2, 2011.”
3 In re Marriage of Epstein (1974) 24 Cal.3d 76.
4 In re Marriage of Watts (1985) 171 Cal.App.3d 366.
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F. Trial of Sharon’s Civil Action
A court trial commenced on February 20, 2019 and
continued on February 22 and 26, 2019. The following relevant
testimony was elicited.
1. Sharon’s Testimony
Sharon testified in accordance with the allegations of her
complaint—that she executed the deeds transferring the
properties to Joshua subject to conditions which were not written
in the deeds.
As to the Gundry property, Sharon purchased it in her
name in July 2010, using money she borrowed from a home
equity line of credit (HELOC). She obtained a mortgage in her
name to make the purchase. Joshua wanted to buy the Gundry
property from Sharon. He “wanted [her] to sign a grant deed . . .
saying [she] intended to sell it [to] him” and that the deed “would
help him to get the financing to purchase it from [her].” She
confirmed having signed a grant deed on July 29, 2010, which
provided: “ ‘For a full valuable consideration, receipt of which is
hereby acknowledged, Sharon J. McMillin, an unmarried woman,
hereby grants to Josh McMillin, a married man, the [Gundry]
property.’ ” Sharon executed the grant deed “with the intention
that if he got the financing to purchase the property, that [she]
would sell the property to him.” Joshua, however, was unable to
obtain financing.
As to the Anaheim property, transfer of title to Joshua was
not to be effective until Sharon died or Joshua bought the
property from her. The deed was executed only to assist Joshua
in obtaining a loan so he could buy it from her.
Sharon understood Trust 1 would hold title to the Anaheim
property. Joshua told Sharon he “needed to refinance to get a
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conventional loan” to pay off the former owner, Frank Prior.
Sharon did not qualify for the refinance due to her credit rating;
thus, Joshua approached his sister Sarah, who was able to obtain
the loan. Until 2017, “Josh or Som” made the payments on the
loan Sarah took out. Then, “Josh called [Sarah] and told her he
had no more money, and he couldn’t make the payments, and it
would go to foreclosure.”
2. Sarah’s Testimony
Sarah claimed no ownership interest in the Gundry or
Anaheim properties. When Joshua asked Sarah to take out a
loan on the Anaheim property, she turned him down because she
“didn’t feel comfortable doing it”—i.e., “putting [her] name on
something that is not [her] property.” Later, when Joshua had
asked her again, she changed her mind and decided to do it. In
return, Joshua paid her $3,000 “for [her] to take on that loan.”
Sarah never spoke to Som about getting the loan; all
conversations were with Joshua. Sarah claimed the mortgage
interest tax deduction from the loan on the Anaheim property
beginning in 2011.
Although obligated on the loan, Sarah “thought [the
property] was his still.” Joshua told Sarah that he “and Som
would pay the monthly mortgages” and that Sarah “wouldn’t be
responsible for paying them.” For a while, Sarah “sent the
statements to Josh, and . . . he sent it to Som.” There was a time
“when Som was still paying, and Josh said he could not so
[Sarah] was covering his portion.”
Sarah did not “have any clue” at the time she notarized and
signed the two grant deeds dated July 18, 2011 that she was
granting the same property to two different grantees on the same
10
day. She only signed the grant deeds because her brother asked
her to.
3. Joshua’s Testimony
Joshua believed it was necessary to transfer the Anaheim
property to Sarah so that she could apply for a loan to fully pay
off Frank Prior, the previous owner of the Anaheim property.
Joshua knew Sharon intended title to transfer to Sarah so that
Sarah could obtain the loan. The grant deeds “were intended to
take effect right away so [that his] sister could get a loan.” It was
represented to the lender that Sharon “had already titled in her
name; that was one of the requirements the lender needed for her
to get a loan.”
Joshua took possession of the $250,000 Sharon gave him
from her HELOC to purchase the Gundry property and deposited
it into a bank account he controlled. He did not segregate
Sharon’s funds from his personal funds so he was unable “to trace
the money completely” via bank statements. “There’s just too
many accounts to fully trace everything that was done.”
It was agreed that title to the Gundry property would not
be transferred to Joshua and the deed not recorded until he
either purchased the property or Sharon died. These conditions
were not set out in writing and were not attached to or part of the
deed.
Som and Joshua lived at the Anaheim property at some
point during their marriage. However, Joshua does not claim to
be the owner of either property and believes Sharon is the owner
of both.
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4. Som’s Testimony
In October 2013, Som recorded the grant deed from Sarah
to Joshua for the Anaheim property and the grant deed from
Sharon to Joshua for the Gundry property. She recorded at that
time because she “had this suspicion that something was
happening and [her] properties were being stolen from [her] by
the McMillins.” Som had the deeds in her possession in her safe
deposit box. She only altered the return address on the deeds
because the County Recorder requested “current” addresses.
Som confirmed she had filed a request for a fee waiver on
April 4, 2009 in a prior lawsuit against her stepfather due to “the
economic circumstances caused by [her] unemployment.” The fee
waiver was granted. She filed the fee waiver because she had
“overextended” herself by paying multiple mortgages on multiple
properties, paying for the litigation to defend her title to the
Anaheim property, and by financially supporting her disabled
husband, her brother, and herself. She also confirmed she had
several tax liens against her personally for the years 2007 to
2011.
G. Trial Court’s Ruling
On April 25, 2019, the trial court issued its tentative
decision. In brief, the court found:
1. Credibility
• Som was not credible. “Where her testimony
conflicted with [Sharon’s] the court adopts [Sharon’s] version as
the more credible.”
• Som “testified that she used her ‘money’ to purchase
the properties in July and September 2010. [¶] The court finds
that [Som’s] testimony is not credible. . . . On or about June 12,
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2009, she filed [a] Request to Waive Court fees involving a
lawsuit against her stepfather.” Som claimed “she was indigent
and had no funds to pay for the court fees . . . under penalty of
perjury.” Som “admitted during trial that she had several tax
liens against her from 2007 thru 2011. . . . She testified that she
did not take care of tax liens until 2014 or 2015. [¶] Based on
[Som’s] testimony and the exhibits admitted, the court finds that
she had insufficient funds to purchase the Anaheim and Gundry
Properties in 2010 as she claimed.”
2. The Gundry Property
• “The Gundry property was purchased on or about
July 22, 2010. Sharon purchased the property with a loan in her
name (as reflected in the security instrument – [the Deed of
Trust]), and she took title in her name: ‘Sharon J. McMillin, an
unmarried woman.’ ”
• “Sharon testified that her son expressed an intention
to purchase the Gundry property from her. . . . Sharon signed
and provided [the unrecorded deed] to Joshua to allow him to
attempt to obtain financing to be able to purchase the Gundry
property from her. . . . She credibly testified that she gave him
the deed with th[e] understanding that ‘if he got the financing to
purchase the property, that [she] would sell the property to
him.’ ” (Italics omitted.) The court found that when Sharon gave
the deed to Joshua, she did not intend to make an immediate
transfer of title within the meaning of the legal term “delivery.”
3. The Anaheim Property
• “The Anaheim property was purchased on or about
September 10, 2010. Sharon was told by her son that Anaheim
13
was purchased using Sharon’s funds as down payment, and title
to Anaheim was placed in a Trust for Sharon.”
• “Joshua informed Sharon that they needed to
refinance the loan from the previous seller Frank Prior. Sharon
attempted to qualify for a loan but was denied due to a ‘ding’ on
her credit. Ultimately, Sharon testified that her daughter Sarah
was approached by Joshua, and [Sarah] was able to obtain the
loan.”
• “With respect to [Trust 1], Sharon testified that she
believed Joshua drafted the instrument, and told her it would be
advantageous to purchase the Anaheim property in the name of a
Trust, and that Sharon herself would be the beneficiary of that
trust.”
• Sharon never agreed to transfer title to the properties
unless and until Joshua obtained the financing to buy her out.
She never intended legal delivery or that the deed be recorded.
4. Creation of Cause of Action for Breach of Fiduciary Duty
• “Sharon’s claims at trial were for Slander of Title,
Constructive Trust, Declaratory Relief, Quiet Title, and
Cancellation of Deeds. The Constructive Trust is a remedy and
not a cause of action. The court disregards the caption and
deems it to be a claim for breach of fiduciary duty. The Slander
of Title and Quiet Title causes of action assert the same claim
that Sharon owns the properties.”
• “Sharon prays for the remedy of a constructive trust
with respect to her Cause of Actions (sic) for Slander of Title and
Quiet Title. [¶] Slander of title does not support the remedy of a
constructive trust. The remedy is monetary damages. Quiet
Title results in a decree by the court. But a constructive trust is
14
a proper remedy for breach of fiduciary duty and the court’s
analysis pertains to that theory.”
• The court found “Joshua was Sharon’s trustee” and
received the $250,000 “to be invested by him on Sharon’s behalf.
[¶] One who receives the money of another to invest on that
person’s behalf becomes a fiduciary.”
• The court also found Som “owed fiduciary duties to
Sharon” because the “parties were family members and Sharon
reposed trust and confidence in her daughter-in-law. [Som] knew
that her husband had received $250,000 from his mother and it
was to be invested in his mother’s behalf. Moreover, [Som]
signed and initialed every page of the Deed of Trust for Sharon’s
purchase of the Gundry Property.” “Both Joshua and [Som]
breached their fiduciary duties owed to Sharon by commingling
her investment funds and by failing to account for $250,000.”
• Som “breached her fiduciary duty by altering and
recording the deed.” “On October 22, 2013, [Som] filed a petition
for divorce against Joshua. . . . A few days earlier on October 16,
2013, she recorded two deeds. . . . The effect of the recordation of
these two deeds was to place apparent record title in the name of
Joshua, in an over-reaching attempt to make a community
property claim in the marital dissolution action.” “The deeds . . .
were taken by [Som] and recorded without permission of the
grantors, thus title did not pass to the Grantees listed on either of
those deeds.”
5. Constructive Trust
• The court found “the equitable remedy of a
constructive trust is appropriate and justified. . . . When Joshua
was unable to obtain loans to purchase the properties, the deeds
[Sharon] executed was void. Sharon believed Joshua when he
15
told her that the deeds were destroyed. This was an
accommodation between two parties in an intimate relationship.”
• The court “deems that Joshua currently holds record-
title to the Gundry and Anaheim Properties in constructive trust
for his mother [Sharon]. He is ordered to refrain from
encumbering or transferring said properties except to Sharon.”
6. Cancellation of Deeds
• The court found “sufficient grounds exist to [c]ancel”
the Gundry Deed and the Anaheim Deed. The court declared
that Som, Joshua, Maga View “have no right, title, or equitable
interest” in the Gundry and Anaheim properties. It also found
Sarah claimed no ownership to either property. The properties
“are awarded to Sharon” who “holds paramount title to both
properties.”
7. Cross-Complaint
• The court found Som “proved none of her causes of
action in her cross-complaint by a preponderance of the
evidence.”
Som filed 13 objections to the trial court’s tentative
decision. On May 9, 2019, the trial court overruled all objections
and adopted its tentative ruling as the final statement of
decision.
On June 24, 2019, judgment was entered.
Som’s timely appeal followed.
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DISCUSSION
A. The Trial Court Abused its Discretion When It Amended
Sharon’s Complaint to Include a Cause of Action for Breach
of Fiduciary Duty. The Judgment on the Third Cause of
Action is Reversed.
The trial court amended Sharon’s cause of action for
“constructive trust”, sua sponte, to refashion it as a cause of
action for breach of fiduciary duty. The trial court amended the
cause of action via its post-trial tentative statement of decision.
Som contends the trial court’s amendment “was not a
renaming of an existing cause of action but a new and different
claim.” She asserts Sharon’s complaint “does not, in substance or
form, assert a cause of action for breach of fiduciary duty.” This
prejudiced her in that Sharon’s complaint did not assert facts
that would reasonably put Som on notice for a potential breach of
fiduciary duty claim. She argues the amendment affected her
ability to respond, prepare, and defend, as she would have
introduced additional evidence/testimony about whether she even
owed a fiduciary duty, as well as a statute of limitations defense.
Next, she contends the court’s findings that Som owed a
fiduciary duty to Sharon are directly contradicted by the
testimony of all involved parties.
1. Standard of Review and Applicable Law
It is well established that leave to amend a complaint is
entrusted to the sound discretion of the trial court, and that the
exercise of that discretion will not be disturbed on appeal absent
a clear showing of abuse of discretion. (Garcia v. Roberts (2009)
173 Cal.App.4th 900, 909.)
17
Code of Civil Procedure 5 section 473 authorizes the court to
allow a party to amend a pleading “in furtherance of justice, and
on any terms as may be proper.” (§ 473, subd. (a)(1).) Section
473 also provides the court “discretion, after notice to the adverse
party, [to] allow, upon any terms as may be just, an amendment
to any pleading or proceeding in other particulars; and may upon
like terms allow an answer to be made after . . . .” (Ibid.) “When
it appears to the satisfaction of the court that the amendment
renders it necessary, the court may postpone the trial . . . .” (Id.,
subd. (a)(2).)
Pursuant to section 576, a “judge, at any time before or
after commencement of trial, in the furtherance of justice, and
upon such terms as may be proper, may allow the amendment of
any pleading or pretrial conference order.” (Italics added.)
However, “ ‘ “ ‘even if a good amendment is proposed in proper
form, unwarranted delay in presenting it may—of itself—be a
valid reason for denial.’ ” ’ ” (P&D Consultants, Inc. v. City of
Carlsbad (2010) 190 Cal.App.4th 1332, 1345.)
“It is of course settled that the allowance of amendments to
conform to the proof rests largely in the discretion of the trial
court and its determination will not be disturbed on appeal
unless it clearly appears that such discretion has been abused.
[Citations.] 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.’ ” (Trafton v. Youngblood (1968) 69 Cal.2d 17, 31.)
Amendments of pleadings to conform to proof should not be
5 All further undesignated statutory references are to the
Code of Civil Procedure.
18
allowed “ ‘when they raise new issues not included in the original
pleadings and upon which the adverse party had no opportunity
to defend.’ ” (Ibid.) Per section 469, variance “between the
allegation in a pleading and the proof shall not be deemed
material, unless it has actually misled the adverse party to his or
her prejudice in maintaining his or her action or defense upon the
merits.” (§ 469.)
“The cases on amending pleadings during trial suggest trial
courts should be guided by two general principles: (1) whether
facts or legal theories are being changed and (2) whether the
opposing party will be prejudiced by the proposed amendment.
Frequently, each principle represents a different side of the same
coin: If new facts are being alleged, prejudice may easily result
because of the inability of the other party to investigate the
validity of the factual allegations while engaged in trial or to call
rebuttal witnesses. If the same set of facts supports merely a
different theory [then] no prejudice can result.” (City of Stanton
v. Cox (1989) 207 Cal.App.3d 1557, 1563.)
2. Analysis
The trial court sua sponte amended the cause of action for
constructive trust to state a cause of action for breach of fiduciary
duty after the close of evidence, when it issued the tentative
statement of decision. Som preliminarily argues the timing of the
court’s sua sponte amendment left her with no meaningful notice
of the claim. Som filed objections to the tentative ruling—
including on this very ground—but the trial court overruled the
objections on the ground that they were “beyond the scope of
objections to a statement of decision.” It adopted its tentative
ruling as the final decision without affording Som an opportunity
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to supplement her papers, brief the issue, or be heard on what
she contends is a newly raised matter.
While section 576 allows a judge to amend a pleading “at
any time before or after commencement of trial, in the
furtherance of justice, and upon such terms as may be proper,”
we have found no statute or case, despite an exhaustive search,
that discusses whether a judge may sua sponte amend a
complaint in this manner after conclusion of the trial.
Thus, we review Sharon’s complaint and the allegations
therein, as well as the evidence in the record, to determine
whether the amendment is supported by the facts alleged and
legal theories pled by Sharon. If so, then Som was reasonably
put on notice of a claim for breach of fiduciary duty, and the
court’s post-trial sua sponte amendment to that effect was not an
abuse of discretion.
The elements of a cause of action for breach of fiduciary are
“the existence of a fiduciary relationship, breach of fiduciary
duty, and damages.” (Oasis West Realty, LLC v. Goldman (2011)
51 Cal.4th 811, 820.)
In the caption of her complaint, Sharon entitled her third
cause of action as “Constructive Trust.” On page 10 of the
complaint, Sharon entitled her third cause of action as “Unjust
Enrichment And To Impress Constructive Trust Against All
Defendants.” Under this heading, Sharon alleged Joshua and
Som were “unjustly enriched and have benefited at the direct
expense” of Sharon because the two properties were solely owned
by Sharon and were never purchased by Joshua or Som. Sharon
argued that as a result of Som’s “fraudulent and malicious
slander of [Sharon’s] title” to the properties, Som became an
involuntary trustee holding the Gundry and Anaheim properties,
20
their rents, issues, royalties, and profits in constructive trust for
Sharon, “with the duty to convey” them back to Sharon.
Throughout her complaint, Sharon alleges she “instructed
Joshua to safely hold” the Gundry and Anaheim property deeds.
She alleges she entered into a “Refinancing Agreement” with
Joshua and Sarah in connection with the Anaheim property. She
describes multiple communications and transactions that she had
with Joshua and Sarah. She also alleged having “instructed
Sarah to give Joshua” the Anaheim deed and that “Joshua
agreed to safely hold” the deed. There is not one allegation
included in Sharon’s complaint that indicates Sharon and Som
had any communication about either property, the numerous
grant deeds executed/notarized by Sharon, Joshua, and Sarah, or
the Refinancing Agreement Sharon entered into with Joshua and
Sarah, but not Som. We see no allegations that support a
fiduciary relationship between Sharon and Som. We see no
conduct by Som toward Sharon that elevated their relationship
from one of mother-in-law and daughter-in-law to one of
beneficiary and fiduciary.
Similarly, throughout trial proceedings, the testimony
provided by Sharon—whom the trial court found credible—does
not suggest the existence of a fiduciary duty owed by Som.
Sharon testified that Joshua approached her on multiple
occasions for investment opportunities, that she “trusted Josh to
make appropriate investments,” that she signed a power of
attorney as to Joshua (whom she knows sometimes signed
documents on her behalf). Sharon transferred $250,000 in funds
from her home equity line of credit, as instructed by Joshua, and
he was to invest the money “for [her] future, for [her] retirement.”
Sharon testified that she never had any discussions with Som
about the Anaheim property. Sharon had spoken with Joshua
21
only about creating the trust. He told her “it was advantageous
to buy” property with a trust and appointed himself the trustee of
Trust 1. She testified she never asked for a monthly accounting
of the rents because she “trusted [her] son to take care of [her]
interests.”
The trial court found Joshua was Sharon’s trustee and
received her $250,000 “to be invested by him on Sharon’s behalf.”
We agree: one who receives the money of another to invest on
that person’s behalf becomes a fiduciary. A trustee has a duty to
administer the trust, diligently and in good faith, in accordance
with the terms of the trust and applicable law. (O’Neal v.
Stanislaus County Employees’ Retirement Assn. (2017)
8 Cal.App.5th 1184, 1209.) A trustee also owes a duty of loyalty
in that he has a duty to administer the trust solely in the interest
of the beneficiaries; this duty is frequently invoked as protection
against creating conflicts between a trustee’s fiduciary duties and
personal interests. (Ibid.) The evidence and testimony at trial
supports the finding that Joshua owed and breached a fiduciary
duty to Sharon.
However, the same cannot be said for Som. Sharon’s
complaint does not allege facts giving rise to the existence of any
fiduciary relationship between Som and Sharon. And the
evidence and testimony proffered by Sharon (who was found
credible by the court) does not support the existence of any
fiduciary duties owed to Sharon by Som.
The trial court below found Som “owed fiduciary duties to
Sharon” because the “parties were family members and Sharon
reposed trust and confidence in her daughter-in-law.” The trial
court did not cite, and we have not found, any authority to
support the notion that one owes fiduciary duties simply by being
a trusted in-law or soon-to-be ex-in-law. “ ‘[B]efore a person can
22
be charged with a fiduciary obligation, he must either knowingly
undertake to act on behalf and for the benefit of another, or must
enter into a relationship which imposes that undertaking as a
matter of law.’ ” (City of Hope National Medical Center v.
Genentech, Inc. (2008) 43 Cal.4th 375, 386.) Sharon’s allegations
in the complaint and the testimony that was credited by the court
below do not establish that Som and Sharon had a relationship 6
that imposed a fiduciary obligation on Som to act on behalf of and
for the benefit of Sharon. Nothing in the record suggests they
ever communicated about Sharon investing money in the two
properties. Sharon’s testimony made clear that all her
communications were with Joshua (and sometimes, Sarah), but
never did she indicate she communicated with Som about the
properties, the Refinancing Agreement, Trust 1, or anything else
for that matter. Thus, Sharon did not meet the first element of
breach of fiduciary duty, the existence of a fiduciary relationship.
The only allegations about Som in the complaint are that
Som caused the Anaheim deed and Gundry deed to be recorded at
the L.A. County Recorder’s Office “without [Sharon’s] knowledge
or permission.” Based on this, the trial court found Som’s
“recordation of these two deeds was to place apparent record title
in the name of Joshua, in an over-reaching attempt to make a
community property claim in the marital dissolution action.”
This finding does not support a finding that a fiduciary
relationship existed between Som and Sharon.
6 “[E]xamples of relationships that impose a fiduciary
obligation to act on behalf of and for the benefit of another are ‘a
joint venture, a partnership, or an agency.’ ” (Cleveland v.
Johnson (2012) 209 Cal.App.4th 1315, 1339.)
23
Based on the foregoing, a reasonable person would not
interpret Sharon’s complaint as alleging breach of fiduciary duty
by Som. Consequently, we find the trial court’s sua sponte post-
trial amendment of the third cause of action to one for breach of
fiduciary duty prejudiced Som; it contravened basic tenets of law
and motion practice (§ 1010; Cal. Rules of Court, rule 3.1110(a))
as well as Som’s right to notice, which is an element of due
process. (Derry v. Superior Court (1968) 266 Cal.App.2d 556,
559–561.) “It is a fundamental concept of due process that a
judgment against a defendant cannot be entered unless [she] was
given proper notice and an opportunity to defend.” (In re
Marriage of Lippel (1990) 51 Cal.3d 1160, 1166.) “ ‘Due process
requires that all parties be notified of the facts and issues in
dispute, that each party be afforded a fair opportunity to present
evidence in open court, and that judgment be rendered based on
an evaluation of the evidence on each side, findings of fact and
conclusions of law.’ ” (Carr v. Kamins (2007) 151 Cal.App.4th
929, 936.) A court that rules on a material issue “without even
mentioning to the parties at the time that it was considering the
question” violates due process. (Bricker v. Superior Court (2005)
133 Cal.App.4th 634, 639.)
Because Som had no notice that the court was considering
a breach of fiduciary duty claim against her, the court violated
due process by considering it for the first time in its proposed
statement of decision, without notice to and opportunity for Som
to be heard on the issue, or present testimony or evidence as to
the elements of breach and any affirmative defenses thereto. For
instance, Som argues on appeal that had she known Sharon was
alleging a claim for breach of fiduciary duty, she would have
asserted a statute of limitations defense and presented evidence
supporting the same. “The power vested in a judge is to hear and
24
determine, not to determine without hearing.” (Estate of
Buchman (1954) 123 Cal.App.2d 546, 560.)
We are persuaded that the trial court’s sua sponte post-
trial amendment was not supported by the allegations in
Sharon’s complaint or the evidence and testimony found credible
by the trial court. Amending the complaint to include a breach of
fiduciary claim after conclusion of trial unfairly prejudiced Som
and therefore constituted an abuse of discretion. For this reason,
we reverse the trial court’s judgment on Sharon’s third cause of
action.
B. The Trial Court Erroneously Determined that Conditional
Delivery of the Deeds was Valid. The Judgment on the
Causes of Action for Slander of Title, Quiet Title,
Declaratory Relief, and Cancellation of Deeds is Reversed.
We conclude the trial court misinterpreted the law of
conditional delivery of deeds.
1. Applicable Law
A deed is effective only when delivered. (Civ. Code, § 1054.)
Delivery requires a present intention to pass title, and that is a
question of fact upon which the grantor may testify. (Ivancovich
v. Sullivan (1957) 149 Cal.App.2d 160, 164 (Ivancovich).)
However, under Civil Code section 1056, a “grant [deed] cannot
be delivered to the grantee conditionally. Delivery to him, or to
his agent as such, is necessarily absolute, and the instrument
takes effect thereupon, discharged of any condition on which the
delivery was made.” This proposition of law is clearly stated in
Blackledge v. McIntosh (1927) 85 Cal.App. 475, 482, and remains
unchanged today.
25
A deed cannot be delivered to the grantee as an escrow; if it
is delivered to him, it becomes an operative deed, freed from any
condition not expressed in the deed; it vests title in him, although
this may be contrary to the intention of the parties. (Ivancovich,
supra, 149 Cal.App.2d at p.165–166.)
The rule is succinctly summed up by California
commentators. “If the grantor makes a deed, intending to divest
himself or herself completely but delivers it to the grantee with
the understanding that it is not to take effect until the grantee
performs some condition, the complete divestment is inconsistent
with the annexed condition, and the grantee takes absolutely,
free from the condition.” (12 Witkin, Summary of Cal. Law
(11th ed. 2021) Real Property, § 310, p. 364.) “A deed cannot be
delivered to the grantee under any condition not expressed in the
deed; any delivery to the grantee, or to the grantee’s agent, is
absolute and the deed therefore takes effect upon delivery, and
any purported condition is ignored. If the grantor executes and
delivers a deed to the grantee with the intent of divesting title,
but imposes an oral condition on the transfer, the condition is
disregarded and the grantee receives title free and clear of the
condition. If the condition does not occur, the grantor may be
able to recover damages from the grantee, but the title cannot be
recovered.” (3 Miller & Starr, Cal. Real Estate (4th ed. 2021)
§ 8.46, p. 8-137, fns. omitted.)
Finally, cancellation of deeds is normally governed by Civil
Code section 3412, which provides: “A written instrument, in
respect to which there is a reasonable apprehension that if left
outstanding it may cause serious injury to a person against whom
it is void or voidable, may, upon his application, be so adjudged,
and ordered to be delivered up or canceled.”
We address the two properties separately.
26
2. The Gundry Property
Sharon testified Joshua wanted to buy the Gundry property
from her, and she executed the grant deed “with the intention
that if he got the financing to purchase the property, [she] would
sell the property to him.” She confirmed having signed the July
29, 2010 grant deed which provided: “ ‘For a full valuable
consideration, receipt of which is hereby acknowledged, Sharon J.
McMillin, an unmarried woman, hereby grants to Josh McMillin,
a married man, the [Gundry] property.’ ”
Joshua testified it was orally agreed that the deed was not
to be recorded until he either purchased the property from
Sharon or Sharon died. He testified that these conditions were
not made in writing and were not attached to or part of the deed.
We can confirm by reviewing the July 29, 2010 grant deed that
these were oral conditions as they were not written on the grant
deed itself.
Both Sharon and Joshua testified Joshua relied upon the
executed, notarized grant deed when he unsuccessfully applied
for financing.
The trial court found that the Gundry property “was
purchased on or about July 22, 2010” by Sharon “with a loan in
her name (as reflected in the security instrument – [the Deed of
Trust])” and she took title in her name. The statement of
decision also provided: “Sharon testified that her son expressed
an intention to purchase the Gundry property from her. . . .
Sharon signed and provided [the unrecorded deed] to Joshua to
allow him to attempt to obtain financing to be able to purchase
the Gundry property from her. . . . She credibly testified that she
gave him the deed with th[e] understanding that ‘if he got the
financing to purchase the property, that [she] would sell the
27
property to him’ and that by giving him the deed, she did not
intend to deliver it within the legal meaning—i.e. immediate
transfer of title.” (Italics omitted.) The trial court concluded
Sharon never intended “legal” delivery of the Gundry deed.
We do not question the trial court’s findings, but do not
accept them as a valid basis for the court’s legal conclusions. The
oral condition expressed between Sharon and Joshua that the
grant deed would not be effective unless Joshua successfully
obtained financing is nullified by Civil Code section 1056. No
condition was expressed in the instrument itself and therefore,
under Civil Code section 1056, the oral condition was ineffective.
“Under such circumstances the delivery of the deed and vesting of
such title occurs by operation of law even though the result may
be contrary to the express stipulation of the parties.”
(Ivancovich, supra, 149 Cal.App.2d at p. 165.)
As explained by the court in Ivancovich, “[t]he foregoing
principle of law may appear to be harsh and in some cases it
certainly is contrary to the wishes and intent of the parties. The
reason for the rule appears to be the reluctance of the law to
permit or encourage the conditional manual delivery of a deed to
a grantee which upon its face appears valid in all respects and
thus open the way for fraud and misrepresentation as well as
honest misunderstanding in regard to third parties who have no
knowledge of the conditions imposed aliunde.” (Ivancovich,
supra, 149 Cal.App.2d at p. 166, first italics added.)
It is precisely for this stated reason that the trial court’s
ruling must be reversed. The trial court’s ruling validated
Sharon and Joshua’s misrepresentation to the world, including
financial lenders, that Joshua was the owner of the Anaheim
property, based on a grant deed that “appears valid in all
respects” when, in reality, they had a private, verbal
28
understanding that the grant deed was only conditionally
effective. Sharon cannot have it both ways. The Gundry deed,
being absolute upon its face, and having been physically
delivered to Joshua by Sharon herself, took effect at once without
the oral conditions.
We conclude the deed was delivered and is valid without
the oral conditions. Sharon is not entitled to judgment quieting
title in her name. The judgment quieting title on the Gundry
property is reversed with directions to enter a new judgment
quieting title in Joshua’s name.
3. The Anaheim Property
The trial court found in its statement of decision that the
Anaheim property was purchased on or about September 10,
2010. “Sharon was told by her son that Anaheim was purchased
using Sharon’s funds as down payment, and title to Anaheim was
placed in a Trust for Sharon (when it was purchased from Frank
Prior), for which Sharon was the only beneficiary (2153 E.
Anaheim S. J. McMillin Trust).” “Joshua informed Sharon that
they needed to refinance the loan from the previous seller Frank
Prior. Sharon attempted to qualify for a loan but was denied due
to a ‘ding’ on her credit. Ultimately, Sharon testified that her
daughter Sarah was approached by Joshua, and [Sarah] was able
to obtain the loan.” “Sharon never agreed or intended to transfer
title of the properties unless and until Joshua obtained the
financing to buy her out.” “When Joshua was unable to obtain
loans to purchase the properties, the deeds she executed was
void.”
Again we find the conditional delivery ineffective.
Regardless of the source of funds used to purchase the Anaheim
property, the following facts remain. A grant deed was executed
29
on September 8, 2010, transferring title to Trust 1. Sharon
alleged in her complaint that because she was unable to qualify
for a refinance, she “agreed” with Joshua and Sarah “that the
[Anaheim] property would be transferred to Sarah, that Sarah
would refinance the property, and that the property would
subsequently be transferred back” to Sharon. The allegations in
Sharon’s own complaint support that she intended the deeds to
take effect as she literally states she agreed that title “would be
transferred to Sarah, that Sarah would refinance the property,
and that the property would subsequently be transferred back.”
On September 20, 2010, Sharon executed/notarized a grant
deed transferring title to Sarah. Joshua testified the grant deed
was “intended to take effect right away so [that his] sister could
get a loan.” “[T]hat was one of the requirements the lender
needed for her to get a loan.” All parties testified Sarah qualified
for and obtained the loan. On July 18, 2011, Sarah executed a
grant deed transferring the Anaheim property to Joshua. Sharon
said she “instructed Joshua to safely hold” the July 18, 2011
grant deed transferring the Anaheim Property from Sarah to
Joshua and “to not record it until . . . either [Sharon] died or
Joshua purchased” the Anaheim property from Sharon.
Once more, there cannot be a conditional delivery of a deed
to a grantee as alleged and argued by Sharon, and as found by
the trial court. There are no written conditions included as part
of the July 18, 2011 grant deed from Sarah to Joshua. Any oral
condition expressed by Sharon to Joshua in connection with
Sarah’s fully executed and notarized July 18, 2011 grant deed to
Joshua is discharged under Civil Code section 1056. Plus, as it
relates to the legal delivery of the Anaheim deed from Sarah to
Joshua, we find Sharon’s intent regarding delivery does not
matter, as she was not the grantor of that deed—Sarah was. For
30
these reasons, we reverse the trial court’s ruling that because
“Joshua was unable to obtain loans to purchase the properties,
the deeds she executed was void.” No condition was expressed in
the instrument itself and therefore, under Civil Code section
1056, that oral condition was ineffective. The trial court’s
reasoning is unsupported by the evidence and contrary to law.
The July 18, 2011 Anaheim deed signed and notarized by Sarah
and delivered to Joshua is a deed absolute on its face. The
judgment is reversed with directions to enter a new judgment
quieting title to the Anaheim property in favor of Joshua.
As we are quieting title to both properties to Joshua, we
also reverse the judgment as to the second, fourth, sixth, and
seventh causes of action for slander of title, declaratory relief,
and cancellation of the deeds. All are based on the same
erroneous legal conclusion that Sharon’s transfer of title to the
properties was ineffective and she was the rightful owner of the
properties. And there were no facts presented to support a
finding that the deeds were void or voidable in Sharon’s favor.
(Civ. Code, § 3412.) The trial court’s ruling cancelling the two
deeds and declaring title to both properties in Sharon’s name is
reversed, as title was validly transferred to Joshua via the
Gundry and Anaheim Deeds. 7
C. The Trial Court’s Findings and Orders Interfered with
Issues under the Jurisdiction of the Family Law Court.
Som argues the findings made by the trial court in the civil
case are “contrary to the evidence in the record in which it was
7 The trial court made no ruling on the cause of action for
theft. That omission has neither been appealed nor briefed; we
find the issue waived.
31
conceded at a minimum that [Som] and Joshua made mortgage
payments and paid off Sharon’s HELOC.” She believes the
findings and orders made by the civil case court—i.e., that no
person other than Sharon has any interest or claim to either
Anaheim or Gundry properties—“interfered with the family law
court’s jurisdiction to characterize community property interests.”
We agree.
Where a proceeding has been assigned for hearing and
determination to one department of the superior court by the
presiding judge and the proceeding has not been finally disposed
of, it is beyond the jurisdictional authority of another department
of the same court to interfere with the exercise of the power of the
department to which the proceeding has been so assigned. If
such were not the law, conflicting adjudications of the same
subject matter by different departments of the one court would
bring about an anomalous situation and doubtless lead to much
confusion. (Ford v. Superior Court (1986) 188 Cal.App.3d 737,
741–742.) After a family law court acquires jurisdiction to divide
community property in a dissolution action, no other department
of the superior court may make an order adversely affecting that
division. (Askew v. Askew (1994) 22 Cal.App.4th 942, 961–962.)
Here, Glade v. Glade (1995) 38 Cal.App.4th 1441 (Glade) is
instructive. In Glade, husband and wife were involved in a
dissolution action. (Id. at p. 1445.) Husband’s parents, as
trustees of a trust, brought a civil action to foreclose on the
couple’s community property under the terms of a note and trust
deed used to secure a loan from the trust to the divorcing couple.
(Ibid.) The trial court in the civil action granted judgment for the
trust and the subject property was foreclosed on by the trust. (Id.
at p. 1448.) The trial court’s order in the civil case removed from
the family law court the power to characterize and divide the
32
property as community. (Id. at p. 1455.) The civil judgment was
reversed, because once the marital dissolution action was
underway, the family law court acquired jurisdiction over alleged
community property in the hands of third parties and the civil
trial court had no jurisdiction to so act. (Id. at pp. 1455, 1458.)
Here, the evidence in the record establishes that Joshua
and Som lived at the Anaheim property and paid the mortgage
for a period of time. This fact is not disputed or contested by any
party. 8 This creates reimbursement rights under the Family
Code, claims for Epstein credit and/or Watts charges—all issues
falling within the purview of and typically decided in dissolution
cases by the family law court. (Glade, supra, 38 Cal.App.4th at
pp. 1452–1453 [characterization and division of property as
community is entrusted to the family law court].)
The family law court specifically included in the judgment
of dissolution filed September 11, 2018 that all “issues regarding
the properties and related transactions not resolved in the civil
case are reserved for adjudication in the family law case. These
include Epstein credits; Watts charges; Family Code § 2640
reimbursement; reimbursement for rent proceeds collected by
[Joshua] after separation; reimbursement for all monies paid by
[Som] and [Joshua] to claimant [Sharon] during marriage,
including but not limited to payments to her home equity line of
credit [etc.]” The judgment also specified that Som “brought
8 Sharon testified that “Josh or Som” made the payments on
the loan on the Anaheim property until 2017. Sharon testified
Joshua “and Som would pay the monthly mortgages” and Sarah
was not “responsible for paying them.” Sarah also testified there
was a time “when Som was still paying, and Josh said he could
not so [Sarah] was covering his portion.”
33
significant money and property into the marriage and it produced
income.”
The issue then becomes this: by finding that Som has no
interest, right, or claim with respect to the two properties, the
trial court in the civil case essentially usurped from Som the
ability to raise issues that are properly within the province of the
family law court. The parties had not pled and litigated
community property claims in the civil case; thus the language
used by the trial court—that Som has no interest or right or
claim to either Gundry or Anaheim property—was too broad and
went beyond the scope of what was properly before the trial court
in the civil case.
We thus reverse the judgment in this respect as well and
remand to the trial court to amend the language therein to
provide that its orders do not preclude Som from raising claims in
the family law court under its specific jurisdiction. 9
D. The Trial Court Did Not Err When It Admitted
Impeachment Evidence about Som’s Financial
Circumstances in 2009.
Evidence was presented that Som filed a request for a fee
waiver in 2009. Evidence was also presented that Som had
several tax liens against her personally for the years 2007 to
2011. In its statement of decision, the trial court found Som
claimed “she was indigent and had no funds to pay for the court
9 During oral argument, Som requested that we remand the
case to the family law department for further proceedings
consistent with this opinion. We decline to do so, as the family
law case is not before us. We take no position on how the family
law court should proceed if appropriate request(s) for orders are
filed.
34
fees . . . under penalty of perjury” via her Request to Waive Court
Fees. Som had “several tax liens against her from 2007 thru
2011. . . . She testified that she did not take care of tax liens
until 2014 or 2015. [¶] Based on [Som’s] testimony and the
exhibits admitted, the court finds that she had insufficient funds
to purchase the Anaheim and Gundry Properties in 2010 as she
claimed.”
On appeal, Som argues “matters having nothing
whatsoever to do with the merits of any claim in this case should
have been excluded from the court’s consideration as improper
collateral impeachment.”
We disagree with Som. Her financial condition and ability
to afford the down payments to purchase the Gundry and
Anaheim properties were facts in issue in the underlying case.
Proof of Som’s filing of a request for fee waiver in 2009 as well as
the existence of tax liens against her from 2007 through 2011 are
undoubtedly relevant in the trial court’s determination of
whether Som had the funds to purchase the Gundry and
Anaheim properties in 2010. We see no error in this regard.
E. The Trial Court Did Not Deprive Som of a Fair Trial by
“Cutting off [Her] Trial Time Unexpectedly.”
Som argues that while “it is within the province of the
[c]ourt to limit trial time,” the trial court cut off her time “in the
middle of trial.” She contends this prejudiced her in that it cut
off her time to present her exhibits and testimony in her case-in-
chief and her amended cross-complaint, depriving her of a fair
trial and unfairly prejudicing her.
We disagree. We have reviewed the reporter’s transcript,
and do not find the trial court “cut off” her time “unexpectedly.”
35
Trial took place February 20, 22, and 26, 2019. On
February 22, 2019, Sharon completed calling all her witnesses
and rested her case. Som began her defense. Later that
afternoon, the trial court stated: “All right. We’ll stop here.
Four o’clock. We’ll come back on Tuesday. . . . I do have a pretty
heavy calendar. I hope we will start at 10:30. You said you have
about two hours of examination . . . . How much more do you
have?” Counsel for Som responded: “I will go over the two hour
estimate I gave you earlier. I probably have another hour left.”
Counsel for Sharon stated he required a “half hour” for cross.
Joshua, self-represented, stated he needed “an additional half
hour to an hour for questions.”
The trial court told the parties it had “another trial starting
on Wednesday, so [it] need[s] to make sure we close on Tuesday.”
The trial court also stated “[b]oth parties indicated that this will
be lasting two days, maybe a day. Now we’re going over,
estimate, almost double.”
On February 26, 2019, as Som continued with her defense
case, the trial court stated: “All I can tell you is, based on both
counsel’s representation, I reserve time. And basically, your time
estimate is off significantly. And that’s [been] affecting my other
cases that I have set for trial tomorrow. . . . So I’m going to give
you a little bit of time, about another—we can’t go past an hour
and a half . . . estimate on—on your time . . . .”
Thereafter, there were 50 more pages of testimony provided
via the reporter’s transcript, until the trial court asked both
sides, “Anything else?” To which counsel for both parties
responded: “No, your honor.” Then, counsel for Som stated: “We
rest, your honor.”
36
We review the trial court’s imposition of time limits for
abuse of discretion. (People v. ConAgra Grocery Products Co.
(2017) 17 Cal.App.5th 51, 148.)
Based on our review of the record, contrary to Som’s
assertions, we do not find the trial court cut off her time “in the
middle of trial” and affected her “time to present her exhibits and
testimony on her case-in-chief.” Courts have the authority to
request time estimates and enforce time limits, as long as the
limits are reasonable. Here, the trial court repeated its concerns
to both counsel on the second and third days of trial, February 22
and 26, 2019, that their time estimates were way off, to the point
where it is affecting trial on other cases on the court’s calendar.
It is within province of the trial court to impose reasonable time
limits during trial. (People v. Marshall (1996) 13 Cal.4th 799,
854–855.) The trial court proceeded more than fairly, as it
provided Som an hour and half more time than what she had
estimated to the court. What’s more, the record specifically
provides that counsel for Som continued to elicit testimony and
present evidence until telling the court: “We rest, your honor.”
There was no abuse of discretion.
DISPOSITION
The June 24, 2019 judgment is reversed, as follows:
The judgment against Som on the amended third cause of
action (for breach of fiduciary duty) is reversed.
The judgment quieting title to the Gundry and Anaheim
properties in favor of Sharon is reversed with directions to enter
a new judgment quieting title to the properties in favor of Joshua,
per the July 22, 2010 Gundry deed and the July 18, 2011
Anaheim deed. The judgment is also reversed as to the causes of
37
action for slander of title, declaratory relief, and cancellation of
deeds.
We vacate the trial court’s finding that Som has no
interest, right, or claim with respect to the two properties. We
remand with instructions to the trial court to amend the
language of the judgment to provide that its orders do not
preclude Som from raising proper claims for community property
interests, Epstein credits, Watts charges, or other similar claims
in the family law court.
Costs on appeal awarded to appellant Som Rathmeny Eare.
STRATTON, J.
We concur:
GRIMES, Acting P. J.
OHTA, J. *
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
38
Filed 10/25/21
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
SHARON MCMILLIN, B298990
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NC060255)
v.
ORDER CERTIFYING OPINION
SOM RATHMENY EARE,
FOR PUBLICATION
Defendant and Appellant;
[NO CHANGE IN JUDGMENT]
JOSHUA NATHAN MCMILLIN,
Defendant and Respondent.
THE COURT:
The opinion in the above-entitled matter filed on September 30, 2021,
was not certified for publication in the Official Reports. For good cause, it
now appears that the opinion should be published in the Official Reports and
it is so ordered.
There is no change in the judgment.
________________________________________________________________________
GRIMES, Acting P. J. STRATTON, J. OHTA, J. *
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.