Superior Court, State of CaliforniaSUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA Department 7, Honorable CHRISTOPHER G. RUDY, Presiding Courtroom Clerk TBA DATE: 02/11/21

SUPERIOR COURT, STATE OF CALIFORNIA

COUNTY OF SANTA CLARA

Department 7, Honorable CHRISTOPHER G. RUDY, Presiding

Courtroom Clerk: R. Belligan

DATE: 07-08-2021 TIME: 9:00 A.M. 191 North First Street, San Jose, CA 95113

Telephone: 408-882-2170

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and submitted per 3.1312(c))

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LINE # CASE # CASE TITLE RULING

LINE 1 18CV332114 Alireza Mikailli et al vs David

Jacob Langton et al

Motion Hearing: Motion for Summary Judgment

by Defendants David Jacob Langton and Micah

Langton.

Motion DENIED.

Click link at line 1 for full ruling.

The Court will prepare the formal order.






Telephone: 408-882-2170





















Jacob Langton et al

Motion Hearing: Demurrer to Portions of the 3rd

Amended Cross-Complaint of Sara Langton by

Plaintiffs/Cross Defendants Alireza Mikailli and

Mahnaz Kalansk.

Demurrer SUSTAINED without leave to amend.

Click link at LINE 1 for full ruling.



Jacob Langton et al

Motion Hearing: Motion to Strike Portions of the

3rd Amended Cross-Complaint of Sara Langton

by Plaintiffs/Cross Defendants Alireza Mikailli

and Mahnaz Kalansk

Motion MOOT in light of the Court’s ruling on

Defendant’s Demurrer.



LINE 4 21CV381534 Richard Beauchesne vs Bradford

Baugh et al

Motion Hearing: Motion to Quash Service of

Summons by Defendant Thomas Kenefick

Continued to 8/5/21 on the Court’s motion.

No further briefing.






Telephone: 408-882-2170




















LINE 5 18CV333011 John Heineke vs Jane Doe et al Ex Parte Hearing: Ex parte application of

Plaintiff to Continue hearing for additional

discovery. Appearance required.

Motion Hearing: Motion for Summary

Judgment/Adjudication by Defendants Santa

Clara University and Jane Doe.

Appearance required.

LINE 6 17CV308300 Mahmoud Ascarie vs Michael

Fitzsimmons et al

Motion Hearing: Motion for Summary

Judgment/Adjudication Against Plaintiff

Mahmoud Ascarie by Defendants and Cross

Complainants J. Michael Fitzsimmons and

Campbell, Warburton, Fitzsimmons, Smith,

Mendell & Pastore

Continued on the Court’s motion to 8/5/21.

No further briefing.

LINE 7 18CV322457 Mariia Kravchuk vs Taylor

Morrison of California, LLC

Motion Hearing: Motion for Sanctions Against

Plaintiff Mariia Kravchuk Pursuant to CCP

128.7 by Defendant Taylor Beck

Motion DENIED.

Click link at line 7 for full ruling.







Telephone: 408-882-2170
























128.7 by Defendant Joyce Lee.







128.7 by Defendant Tina Longo.







128.7 by Defendant James M. Ganion.







128.7 by Defendant Collinsworth, Specht,

Calkins & Giampaoli LLP.

Withdrawn at the request of moving party.






Telephone: 408-882-2170




















LINE 12 2008-5-CV-

002546

National Credit Acceptance vs T.

Obrien

Motion Hearing: Motion for Order for

Assignment Order and Order Restraining

Judgment Debtor by Assignee Sacor Financial

Inc.

No proof of service of Amended Notice of

Motion providing Judgment Debtor with notice

of the hearing date.

“A notice which fails to specify when a motion

will be made renders that notice fatally

defective. (See Galleria Plus, Inc. v. Hanmi Bank

(2009) 179 Cal.App.4th 535, 538.” Absent an

updated poof of service the hearing will not go

forward. If no appearance is made by the moving

party the matter will be ordered OFF

CALENDAR

LINE 13

LINE 14

LINE 15

LINE 16

LINE 17






Telephone: 408-882-2170




















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LINE 19

LINE 20

LINE 21

LINE 22

LINE 23

LINE 24

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LINE 30

Calendar lines 1, 2 and 3

Case Name: Mikailli, et al. v. Langton

Case No.: 18CV332114 (consolidated with case no. 19CV353393)

Defendants/cross-defendants/cross-complainants David Jacob Langton (“David”) and

Micah Langton (“Micah”) (collectively, “Defendants”) move for summary judgment in their

favor and against plaintiffs/cross-defendants Alireza Mikailli and Mahnaz Kalanaki

(collectively, “Plaintiffs”). Plaintiffs demur to the Third Amended Cross-Complaint

(“TACC”) filed by defendant/cross-complainant Sara Langton (“Sara”) and move to strike

portions contained therein.

I. Background

A. Factual

1. Complaint

According to the allegations of the Complaint, in December 1972, various individuals

conveyed the property located at 448 North San Pedro Street in San Jose (the “Property”) to

John Langton, Jr. (“John”) and Sara, his wife, and their son, Phillip Sydney Langton

(“Phillip”), a single man, all as joint tenants via an Individual Joint Tenancy.1 (Complaint, ¶

12, Exhibit B.)

In February 1990, Sara and John, as joint tenants, conveyed their interest in the

Property to themselves as community property through an interspousal transfer deed.

(Complaint, ¶ 13, Exhibit C.) Six year later, in March 1996, Sara and John conveyed their

interest in the Property to themselves as trustees of the Langton Trust, via a Trust Transfer

Deed. (Id., ¶ 14, Exhibit D.)

On August 25, 2017, an Affidavit-Death of Trustee was recorded concerning the Trust

Transfer Deed and the Property because John had died. (Complaint, ¶ 15, Exhibit E.) That

same day, Sara, as surviving trustee of the Langton Trust, conveyed the Property to Plaintiffs

via a grant deed for valuable consideration. (Id., ¶ 16, Exhibit A.) This conveyance purported

to transfer 100% of the property to plaintiffs Alireza MIkailli and Mahnaz Kalanaki

(collectively, Plaintiffs”).

Plaintiffs allege that due to an oversight or mistake, an interest in the Property is still

vested, or may still be vested, in Phillip (who is deceased), and thus that defendants, David and

Micah, who are Phillips’ heirs or devisees (son and wife), may claim some right, title, lien or

interest in the Property which is adverse to, or creates a cloud on, Plaintiffs’ title. (Complaint,

¶¶ 3-5, 18.) Plaintiffs allege that they are third party bona fide purchasers. Plaintiffs therefore

seek to quiet title in their favor.

2. TACC

1 The Court will use first names on occasion in this order for the sake of clarity; no disrespect is

intended. (See Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)

In the TACC, Sara alleges that during the sale of the Property to Plaintiffs in 2017, she

contracted with cross-defendant Cornerstone Title Company to operate as the escrow holder

and title insurer for the transaction. Sara alleges, among other things, that Cornerstone failed

to perform a reasonable title search on the Property before Plaintiffs recorded their grant deed

in August 2017.

With respect to Plaintiffs in particular, Sara asserts a single claim against them for

equitable indemnity, based on allegations that they owed her a duty to act with reasonable care

with respect to the sale of the Property by virtue of the contractual relationship created by the

sale itself and Sara’s purchase of a policy of title insurance on their behalf, and breached that

duty by refusing to tender the title dispute to the title insurance company. (TACC, ¶¶ 96-99.)

B. Procedural

Plaintiffs initiated this action in July 2018, asserting claims for (1) quiet title and (2)

declaratory relief. About a year later, Plaintiffs filed a separate action against Sara for breach

of contract due to the interest in the Property claimed by David and Micah.2 Sara then filed a

cross-complaint against Cornerstone in October 2019, followed by a first amended cross-

complaint two months later. Subsequent rounds of demurrers led to the filing of the second

amended cross-complaint on July 2, 2020 and the TACC on February 22, 2021.

On November 13, 2019, Defendants filed a motion for summary judgment as to the

Complaint filed by Plaintiffs. After the motion was continued to enable Plaintiffs to conduct

additional discovery- particularly Sara’s deposition- the Court found that triable issues of

material fact existed and denied it on October 6, 2020.

On March 8, 2021, Plaintiffs filed the instant demurrer to the eleventh cause of action

in the TACC on the grounds of failure to state facts sufficient to constitute a cause of action,

uncertainty, and that it cannot be ascertained whether the contract sued on is written, oral or

implied by conduct. (Code Civ. Proc., § 43010, subds. (e), (f) and (g).) Plaintiffs also filed the

motion to strike Sara’s request for punitive damages.3 Sara opposes the motion.

On March 9, 2021, Defendants filed the instant motion for summary judgment of

Plaintiffs’ Complaint. Plaintiffs oppose the motion.

II. Plaintiffs’ Motions

A. Demurrer

With the instant motion, Plaintiffs maintain that Sara’s claim for equitable indemnity

fails as a matter of law for the following reasons: (1) Sara’s claims against Plaintiffs are based

on the parties’ purchase and sale agreement; (2) there can be no claims for indemnity under the

2 That action (Case No. 19CV353393) was consolidated with this action in January 2020 for all pre-trial

purposes. 3 Plaintiffs proffer no argument in support of the grounds set forth in Code of Civil Procedure section 430.10,

subdivisions (f) and (g) and therefore the demurrer on these grounds is OVERRULED.

title policy issued to Plaintiffs; (3) Sara cannot allege indemnity because she has suffered no

loss; and (4) there is no right to indemnification for Sara’s intentional concealment.

As a general matter, indemnity is “the obligation resting on one party to make good a

loss or damage another party has incurred.” ((Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975)

13 Cal.3d 622, 627.) This obligation is created through contract or through equitable

considerations. (See Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1157

[California courts recognize “two basic types of indemnity” express indemnity and equitable

indemnity…. [I]mplied contractual indemnity is now viewed simply as ‘a form of equitable

indemnity”].) Equitable indemnity principles concern the allocation of loss or damages among

multiple tortfeasors whose liability for the underlying injury is joint and several. (American

Motorcycle v. Superior Court (1978) 20 Cal.3d 578, 583, 595, 597-598.) Such principles are

designed, generally, to do equity among defendants who are legally responsible for an

indivisible injury by providing a basis on which liability for damage will be borne by each joint

tortfeasor “in direct proportion to [its] respective fault.” (Id. at 583, 598 [internal citations and

quotations omitted].) With limited exception, there must be some basis for tort liability against

the proposed indemnitor. (See Stop Loss Insurance Brokers, Inc. v. Brown & Toland Medical

Group (2006) 143 Cal.App.4th 1036, 1041-1042.) Generally, it is based on a duty to the

underlying plaintiff, although vicarious liability, strict liability, and implied contractual

indemnity can provide a basis for equitable. (See BFCG Architects Planners, Inc. v.

Forcum/Mackey Construction, Inc. (2004) 119 Cal.App.4th 848, 852.) “A person may not

ordinarily recover in tort for the breach of duties that merely restate contractual obligations,”

instead, “[c]ourts will generally enforce the breach of a contractual promise through contract

law ….” (Id. at 853 [internal citations and quotations omitted].) Thus, breach of contractual

duties generally does not provide a basis for joint and several liability and equitable

indemnity.

Plaintiffs first assert that Sara’s claims against them are based on the parties’ contract

for the purchase and sale of the Property and therefore equitable indemnity does not apply.

Sara responds in her opposition that her indemnity claim is based on implied contractual

indemnity between the parties which is now simply viewed as a form of equitable indemnity.

Problematically for Sara, as stated above, “[a] person may not ordinarily recover in tort

for the breach of duties that merely restate contractual obligations” with the Court instead

“enforcing the breach of a contract promise through contract law” (BFCG Architects Planners,

Inc., supra, 119 Cal.App.4th 848, 852) and, with limited exception, there must be some basis

for tort liability against the proposed indemnitor (see Stop Loss Insurance Brokers, Inc., supra,

143 Cal.App.4th at 1041-1042). Here, the only allegation of Plaintiffs’ alleged misconduct is

based on the parties’ contractual relationship (i.e., the Purchase and Sale Agreement) and to the

Court, this is “an improper attempt [by Sara] to recast a breach of contract cause of action as a

tort claim.” (BFCG Architect Planners, Inc., supra, 119 Cal.App.4th at 853.) Essentially what

Sara is alleging is that if she is found liable to Plaintiffs on their claims against her for (1)

breach of contract, (2) unjust enrichment and/or (3) declaratory relief, then they should recover

nothing from her because she is entitled to be indemnified by the Plaintiffs for damages

suffered by Plaintiffs as a result of Sara’s misrepresentation to them with respect to the sale of

the Property. This is absurd as when this “theory” is distilled down to its simplest form, it is

simply the dissolution of the purchase and sales transaction between Sara and Plaintiffs, i.e., a

breach of contract.

Further, as Plaintiffs contend, joint liability is a component of implied contractual

indemnity claims, with a party’s liability for equitable indemnity being based on “its

proportional share of responsibility for the damages to the injured [third] party.” (Bay

Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1031.) Here, Sara is not alleging

indemnity exists in the event she is found liable to the injured third parties for liability that

should be shared by them and in fact, the third-party heirs, David and Micah, did not sue Sara

in this case. Instead, as Plaintiffs contend, Sara is using the doctrine of equitable indemnity as

a defense to Plaintiffs’ claims against her in this action. Moreover, even if David and Micah

had sued Sara, there would still be no basis for joint indemnity against her and Plaintiffs

because Plaintiffs owed no duty of care to them. The heirs’ cross-claims are not premised on

tort liability and Plaintiffs claims against Sara are based on her breach of her contractual

obligations by her failure to disclose Phillip’s purported 1/3 interest in the Property. As there

exists no basis for tort liability against Plaintiffs (the proposed indemnitor) or an alleged joint

legal owed to the alleged injured third parties (the heirs), there can be no indemnity.

Turning to Plaintiffs’ second argument regarding the title insurance policy, Sara’s

assertion that she is somehow covered under Plaintiffs’ policy is wholly without merit. A title

insurance policy is a “contract to indemnify against loss caused by defects in the title or

encumbrances on the title” (Smith v. Commonwealth Land Title Ins. Co. (1986) 177 Cal.3d

625, 631) and as such, is governed and construed according to the law applicable to insurance

policies in general (Lambert v. Commonwealth Land Title Ins. Co. (1991) 53 Cal.3d 1072,

1077). The fact remains that Sara is not an insured under Plaintiffs’ title policy, which is a

contract between Plaintiffs and their title insurer alone. Regardless of whether Sara was the

purchaser of the policy, which is customary in real property transactions, she is a stranger to

the contract and her efforts to argue that she is a beneficiary of it, and thus has standing to sue

on the contract, have already been rejected by this Court.4 (See Gantman v. United Pacific Ins.

Co. (1991) 232 Cal.App.3d 1560, 1566 [“[s]omeone who is not a party to [a] contract has no

standing to enforce the contract or to recover extra-contract damages for wrongful withholding

of benefits to the contracting party”].) Further, moving on to Plaintiffs’ next argument, the law

is clear that there is no “universal duty of care.” (The MEGA Life & Health Ins. Co. v. Superior

Court (2009) 172 Cal.App.4th 1522, 1527.) Thus, the title insurance company owed no duty of

care to Sara on the subject policy and neither did Plaintiffs.

In light of the foregoing, Sara has failed to state a claim for equitable indemnity against

Plaintiffs, and the Court is not persuaded that there are possible amendments that could be

made by her to state such a cause of action. Consequently, Plaintiffs’ demurrer to the eleventh

cause of action on the ground of failure to state facts sufficient to constitute a cause of action is

SUSTAINED WITHOUT LEAVE TO AMEND.

B. Motion to Strike

4 The Court previously granted defendant Cornerstone Title Insurance Company’s demurrer to claims asserted

against it in the various iterations of Sara’s cross-complaint, including the TACC, because the very agreement she

cited as the basis for her allegation that she was issued a policy of title insurance under which she was the

beneficiary, i.e., the sales agreement entered into between her and Plaintiffs, in fact refutes her core allegations

that Cornerstone issued (or is contractually obligated to issue) her a homeowner’s policy of insurance.

With the instant motion, Plaintiffs move to strike Sara’s request for punitive and

general damages from the TACC. Given the Court’s ruling on Plaintiffs’ demurrer, above,

there are no remaining claims asserted against Plaintiffs in the TACC and thus no basis to

impose damages against them. Accordingly, Plaintiffs’ motion to strike is MOOT.

III. Defendants’ Motion for Summary Judgment

A. Requests for Judicial Notice

1. Defendants’ Request

In support of their motion for summary judgment, Defendants request that the Court

take judicial notice of the following: (1) the Complaint in this action (Exhibit 7); (2) a copy of

the petition in Santa Cruz County Superior Court probate court Case No. 19PR00048 (the

“Probate Action”) (Exhibit 8); and (3) the April 12, 2019 order in the Probate Action

appointing Micah as Administrator of Philip’s estate with limited authority (Exhibit 9). As

these items are court records, they are proper subjects of judicial notice pursuant to Evidence

Code section 452, subdivision (d). However, the Court does not take judicial notice of the

truth of any hearsay statements contained within these documents. (See Day v. Sharp (1975)

50 Cal.App.3d 904, 914.) Subject to this qualification, Defendants’ request for judicial notice

is GRANTED.

2. Plaintiffs’ Request

In support of their opposition to Defendants’ motion, Plaintiffs request that the Court

take judicial notice of the following items: (1) Grant Deed recorded on December 13, 1972 for

the Property (Exhibit 2); (2) the Trust Transfer Deed for the Property recorded March 8, 1996

(Exhibit 3); (3) the Affidavit- Death of Trustee recorded on August 25, 1997 (Exhibit 4); (4)

Declaration Under Probate Code § 13100-13116 dated June 16, 2011 (Exhibit 5); (5) Grant

Deed for the property recorded August 25, 2017 (Exhibit 6); and (6) Order Re: Defendants’

Motion for Summary Judgment dated October 6, 2020 (Exhibit 7). The Court may properly

take judicial notice of the property records under Evidence Code section 452, subdivisions (c)

and (h), and the Court’s order under subdivision (d) of this code section. (See Fontenot v.

Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264 [disapproved of on other grounds

by Yvanova v. New Century Mortg. Corp. (2016) 62 Cal.4th 919] [stating that “a court may

take judicial notice of the fact of a document's recordation, the date the document was recorded

and executed, the parties to the transaction reflected in a recorded document, and the

document's legally operative language, assuming there is no genuine dispute regarding the

document's authenticity. From this, the court may deduce and rely upon the legal effect of the

recorded document, when that effect is clear from its face”].) Accordingly, Plaintiffs’ request

for judicial notice is GRANTED.

B. Legal Standard

“A defendant seeking summary judgment [or adjudication] must show that at least one

element of the plaintiff’s cause of action cannot be established, or that there is a complete

defense to the cause of action … The burden then shifts to the plaintiff to show there is a

triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty

Ins. Co. (2002) 98 Cal.App.4th 66, 72 [internal citations omitted].)

“The ‘tried and true’ way for defendants to meet their burden of proof on summary

judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of

law, an essential element of plaintiff’s claim.” (Weil & Brown, Cal. Prac. Guide; Civ. Proc.

Before Trial (The Rutter Group 2014) ¶ 10:241, p. 10-104, citing Guz v. Bechtel National,

Inc. (2000) 24 Cal.4th 317, 334.) “The moving party’s declaration and evidence will be strictly

construed in determining whether they negate (disprove) an essential element of plaintiff’s

claim ‘in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (opposing

party’s) favor.’” (Id., ¶ 10:241.20, p. 10-105, citing Johnson v. American Standard,

Inc. (2008) 43 Cal.4th 56, 64.)

“Another way for a defendant to obtain summary judgment is to ‘show’ that an

essential element of plaintiff’s claim cannot be established. Defendant does so by presenting

evidence that plaintiff ‘does not possess and cannot reasonably obtain, needed evidence’

(because plaintiff must be allowed a reasonable opportunity to oppose the motion).” (Id., ¶

10:242, p. 10-105, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.)

“Such evidence usually consists of admissions by plaintiff following extensive discovery to

the effect that he or she has discovered nothing to support an essential element of the cause of

action.” (Id.)

C. Analysis

1. Propriety of Motion

Before reaching the substantive merits of Defendants’ motion, the first issue for the

Court to address is whether it may properly consider this motion in the first instance in light of

it having denied a prior motion for summary judgment by Defendants to the same pleading,

Plaintiffs’ Complaint.

A relevant to this issue, a portion of the summary judgment statute, Code of Civil

Procedure section 437c, subdivision (f)(2) (“Section 437c(f)(2)), provides in pertinent part that:

A party shall not move for summary judgment based on issues asserted in a

prior motion for summary adjudication and denied by the court unless that party

establishes, to the satisfaction of the court, newly discovered facts or

circumstances or a change of law supporting the issues reasserted in the

summary judgment motion.

Defendants do not dispute that the foregoing provision is implicated by the instant motion,

their second for summary judgment, but maintain that it is proper because it is based, at least in

part, on newly discovered facts or circumstances. In particular, they assert that after their prior

motion was denied, they located and reviewed, for the first time, John and Philip’s business

records which had been removed from the Property by Philip after his father’s passing and

stored in his home in Santa Cruz. In opposition, Plaintiffs insist that Section 437c(f)(2) is akin

to Code of Civil Procedure section 1008 (“Section 1008), which concerns motions for

reconsideration, and thus Defendants must show both due diligence and explain why they were

unable to present the alleged “new evidence sooner” in order for the Court to consider the

motion. While cases involving Section 437c(f)(2) often also involve a discussion of Section

1008, Plaintiffs cite no authority which provides that a party making a successive motion for

summary judgment on issues asserted in the prior motion purportedly based on “newly

discovered facts or circumstances or a change of law” is required to show due diligence.

Further, even if such a showing was required and not made by Defendants, ultimately the Court

has inherent authority to permit a party to file a successive motion for summary judgment

supported by evidence not presented in connection with the prior motion. (See Marshall v.

County of San Diego (2015) 238 Cal.App.4th 1095, 1106-1107.)

Here, Defendants’ motion is supported by evidence that was previously not available to

them because they had yet to locate it. Thus, the Court finds that this motion has properly been

made under Section 437c(f)(2) and therefore will consider and rule on its substantive merits.

2. Substantive Merits

Defendants’ prior motion for summary judgment was denied after the Court held that

Sara’s deposition testimony created triable issues of material fact regarding the parties’

common understanding as to whether Philip’s title was contingent on the creation of a business

with his father and whether Philip’s failure to create the business meant he had no title to pass

to his heirs.

a. Defendants’ Undisputed Material Facts

Defendants largely submit the same purportedly undisputed material facts in support of

the instant motion as they did in support of their prior motion for summary judgment. To wit:

on December 12, 1972, Sara, John and Phillip purchased the Property, recording their

ownership the following day as “Joint Tenants.” (Defendants’ Separate Statement of

Undisputed Material Facts in Support of Motion for Summary Judgment (“UMF”), Nos. 2, 4.)

Philip contributed $1,000 to the $4,114.40 down payment for the Property. (UMF No. 3.)

On February 1, 1990, John and Sara transferred their portion of the Property to

themselves as community property and recorded the transfer. (UMF No. 5.) Approximately

six years later, on March 8, 1996, John and Sara again transferred their interest in the Property,

this time to the Langton Trust. (UMF No. 6.) John passed away on January 15, 1998. (UMF

No 9.)

Phillip and Micah were married on October 3, 1981, and their son David was born ten

years later on December 2, 1991. (UMF Nos. 7-8.) On March 10, 2011, Phillip suddenly died

intestate, survived by Micah and David. (UMF No. 10.) At that time, Defendants were

unaware that Phillip had an interest in the Property. (UMF No. 11.) On June 16, 2011, Micah

executed and notarized a Small Estate Affidavit under Probate Code sections 13100 to 13116.

(UMF No. 12.)

On August 25, 2017, Sara, as the surviving trustee of the Langton Trust, sold her

portion of the Property to Plaintiffs. (UMF No. 13.) On November 28, 2017, the Office of the

Assessor of Santa Clara County informed Plaintiffs, as well as Sara and Cornerstone, that

Phillip held a 33.33% interest in the Property as a tenant in common. (UMF No. 14.)

After Defendants learned that Phillip’s estate had an interest in the Property, they filed

a Petition for Probate on April 12, 2019 in the Santa Cruz County Superior Court, Case No.

19PR00048 (the “Probate Action”). (UMF No. 15.) The probate court subsequently ordered

Micah appointed as Administrator of Phillip’s estate with limited authority. (UMF No. 16.)

b. Action to Quiet Title

As explained in the order on Defendants’ prior motion for summary judgment, with

their Complaint, Plaintiffs seek to quiet title to the Property, i.e., perfect their title by

eliminating Defendants’ adverse claim. (Lechuza Villas West v. California Coastal

Com’n (1997) 60 Cal.App4th 218; Code Civ. Proc., § 760.020.) As a general matter, the

plaintiff in such an action has the burden of establishing the claim to the property in question.

(Code Civ. Proc., § 318; Lawrence v. Maloof (1967) 256 Cal.App.2d 600, 603.) He or she

must prevail on the strength of the proof of his or her own title and not the weakness of the

adversary’s claim to title. (Ernie v. Trinity Lutheran Church (1959) 51 Cal.2d 702, 706.)

In the preceding motion, Defendants’ endeavored to establish that Plaintiffs did not

obtain a 100% interest in the Property because they currently collectively possess a one-third

interest inherited from Philip. They make the same effort here and the same analysis applies.

That is, is it is undisputed that on December 12, 1972, a grant deed was executed by Victor H.

Owen III and Helen C. Owen, his wife, and Alan M. Sims and Alan M. Sims, as Trustee under

the “Alberta Trust” created by Trust Agreement dated August 18, 1972, conveying their

interest in the Property to John, Sara and Phillip “all as joint tenants.” (UMF Nos. 2-3.) A

joint tenancy in real property consists of an estate owned jointly in undivided equal shares by

two or more persons. (Civ. Code, § 683; Cole v. Cole (1956) 139 Cal.App.2d 691, 695.) Each

joint tenant is vested with title to an undivided equal share of the property, but this interest,

being undivided, runs to the entire property. (Rupp v. Kahn (1966) 246 Cal.App.2d 188, 196.)

A joint tenancy can only be created by a writing containing an express declaration of the

intention to create such a tenancy. (Civ. Code, § 683; Estate of MacDonald (1990) 51 Cal.3d

262, 271.) The fact that a deed was taken in joint tenancy, as the August 18, 1972 grant deed

was here, establishes a prima facie case that the subject property is in fact held in joint tenancy.

(King v. King (1953) 107 Cal.2d 257, 259.)

Except in the case of a conveyance to married persons,5 when a deed conveys property

to the grantees as “joint tenants,” there is a rebuttable presumption that the title is held in joint

tenancy. (Clark v. Carter (1968) 265 Cal.App.2d 291, 294.) This presumption cannot be

overcome by testimony of the hidden intentions of one of the parties, but it can be rebutted by

evidence establishing a common understanding or agreement by all parties that the ownership

was to be other than joint tenancy. (Id.) Thus, as applied here given the language of the 1972

deed, there is a rebuttable presumption that the Property was acquired and held by John, Sara

and Phillip at that time as joint tenants.

5 Property acquired in joint title by husband and wife is presumed to be community property in a dissolution

proceeding. (Fam. Code, § 2581.)

The single most important feature of a joint tenancy that distinguishes it from all other

forms of cotenancy is the right of survivorship whereby upon the death of one joint tenant, the

entire estate automatically belongs to the surviving joint tenant(s). (Estate of Propst (1990) 50

Cal.3d 448, 455; Grothe v. Cortlandt Corp. (1992) 11 Cal.App.4th 1313, 1317.) At the time of

death, the interest of the deceased is not part of his or her estate and does not pass to heirs or

devisees. (Santoro v. Carbone (1972) 22 Cal.App.3d 721, 729 [disapproved on other

grounds].)

Joint tenancies, however, can be terminated. As relevant here, one such method of

termination is termination by conveyance. When a joint tenant conveys title by sale, gift, or

otherwise, the unities of the joint tenancy are destroyed and the joint tenancy is terminated,

whether or not the other joint tenant knows of the conveyance. (Civ. Code, § 683.2, subd.

(a)(1); Wilk v. Vencill (1947) 30 Cal.2d 104, 108.) A joint tenant may sever a joint tenancy

unilaterally by, among other things, executing a deed to him or herself. (Civ. Code, § 683.2,

subd. (a.) The deed must be recorded before the severing joint tenant dies. (Civ. Code, §

683.2, subd. (c).) The severance of a joint tenancy transforms it into a tenancy in common by

extinguishing the right of survivorship. (Tenhet v. Boswell (1976) 18 Cal.3d 150, 155.)

Because there is no right of survivorship, the estate of each tenant in common passes to their

heirs and devisees, and not to the surviving tenants in common. (Estate of England (1991) 233

Cal.App.3d 1, 4.) According to the evidence submitted by Defendants, when Phillip passed away on

March 10, 2011, he died intestate, i.e., without a will. (Marlow v. Superior Court of Los

Angeles County (1941) 17 Cal.2d 393.) Any part of the estate of a decedent not effectively

disposed of by will passes to the decedent’s heirs as prescribed in the statutes governing

intestate succession. (Prob. Code, § 6400.) This would mean that, absent any evidence to the

contrary, upon his death, Phillip’s tenant in common interest in the Property passed in equal

shares to his wife, Micah, and son, David. (See Prob. Code, §§ 6401, subd. (c)(2)(A) [intestate

shares to surviving spouse] and 6402, subd. (a) [intestate estate not passing to surviving

spouse].) Thus, when Sara purported to possess and sell the entire interest in the Property on

August 25, 2017, this was arguably impossible because Phillip’s one-third share had passed in

equal halves to his wife and son. This would appear to mandate the conclusion urged by

Defendants that Plaintiffs cannot establish that they obtained from Sara and possess a 100%

interest in the Property. Sara could not sell to Plaintiffs that which she did not own.

In addition to the foregoing evidence, Defendants now submit for the first time

evidence that Philip contributed $1,000 to the $4,114.40 down payment for the Property.

(UMF No. 3.) Micah states in her supporting declaration that amongst the business records

located at the home she and Philip shared, she located a folder with a note stating, in part, the

following in the handwriting of her father-in-law, John: “This folder contains all the papers for

our building at 448 N. San Pedro.” (Declaration of Micah Langton in Support of Motion for

Summary Judgment (“M. Langton Decl.”), ¶ 13, Exhibit 2.) The folder contained the purchase

agreement for the Property, which bears the signatures of John, Sara and Philip as “Buyer,” as

well as a receipt for funds from Western Title Guaranty Company indicating that it had

received $1,000 from Philip and $3,114 from John on December 11, 1972, to be applied in

accordance with written instructions. (Id., ¶¶ 14-15, Exhibits 3 and 4.) It also contained

“Buyers Instructions and Estimated Closing Statement” from Western Title Guaranty

Company” indicating that the amount received directly from the Langtons was $4,114.40. (Id.,

¶ 16, Exhibit 5.)

The Court finds that given the foregoing, Defendants have met their initial burden on

this motion by demonstrating that Plaintiffs did not obtain a 100% interest in the Property from

Sara and that they currently collectively possess a one-third interest.

c. Plaintiffs’ Opposition

Before reaching the substantive merits of Defendants’ motion, Plaintiffs challenge the

admissibility of the new evidence proffered by Defendants. They argue that this new evidence

is inadmissible hearsay. Problematically for Plaintiffs, they have not complied with the

procedures required for making evidentiary objections. Code of Civil Procedure section 437c,

subdivisions (b)(5) and (d) provide, in effect, that evidentiary objections must be made “at the

hearing” or are deemed waived. California Rules of Court, Rule 3.1352 states that a party may

object to evidence in opposing papers by either submitting written objections before the

hearing or making “arrangements for a court reported to be present at the hearing.” “At the

hearing” means objections made in compliance with California Rules of Court, Rule 3.1352.

“Therefore, written evidentiary objections made before the hearing, as well as oral objections

made at the hearing are deemed made ‘at the hearing’ under CCP § 437c(b)(5) and (d), so that

either method of objection avoids waiver.” (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 531-

532.) All written objections to evidence “must be served and filed separately from the other

papers in support of or in opposition to the motion.” (Cal. Rules of Court, Rule 3.1354(b).)

“Unless otherwise excused by the court on a showing of good cause, all written objections to

evidence in support of or in opposition to a motion for summary judgment or summary

adjudication must be served and filed at the same time at the objecting party’s opposition to

reply papers are served and filed.” (Cal. Rules of Court, Rule 3.1354(a).)

Here, Plaintiffs have not made a separate filing comprised of their objections to

Defendants’ evidence and therefore no such objections are properly before the Court.

Turning to the remainder of their opposition, Plaintiffs maintain, as they did in their

opposition to Defendants’ prior motion for summary judgment, that Philip’s interest in the

Property is still a material fact in dispute and therefore Defendants’ motion must be denied.

More specifically, they argue that Philip only held naked title to the Property, and there existed

an implied contract between John, Sara and Philip, and Philip’s nonperformance thereunder

voided his contingent interest in the Property.

According to Plaintiffs, when the Property was purchased in 1972, Phillip was 19 years

old and living at home. (Plaintiffs’ Separate Statement of Undisputed Material Facts in

Support of Opposition to Motion for Summary Judgment (“PUMF”), No. 20.) The only reason

John and Sara included Phillip on the title was because he and his father were supposed to start

an engineering business together at the Property entitled “Langton and Associates. (PUMF No.

21.) John was to do all of the engineering and Phillip was to “run the business, and do the

sales.” (PUMF No. 22.) John and Sara added Phillip on title to the Property because they

thought if they were to establish the business and something were to happen to them, then

Phillip would have owned the business and the Property. (PUMF No. 23.) However, John

suffered a stroke, became unable to perform any engineering work, and Langton and

Associates never came to fruition. (PUMF Nos. 24, 25.) Consequently, Phillip’s potential

ownership interest in the Property also never came to fruition. Since the original purchase in

1972, Phillip never paid anything for the Property, with John and Sara paying all expenses

incurred based on their ownership of it. (PUMF Nos. 26-30.)

Plaintiffs continue that in March 1996, John and Sara created the Langton Family Trust

and transferred the Property to it because Philip and John never started Langton & Associates,

with the intention for all three of their sons to obtain an equal share of their estate, including

the Property. (PUMF Nos. 31, 32.)

In her deposition, Sara responded in the affirmative, several times, when asked whether

John and Phillip’s plan to open Langton & Associates was the only reason Phillip was on the

1972 Grant Deed. (Deposition of Sara Langton (“S. Langton Depo.) at 89:24-90:6, 91:20-23.)

She clearly indicated that this was not only her husband’s intention, but hers as well:

Q: So—so your intention was Philip is only to keep an interest in the property if the

business is developed—started with John—

A: Yes

Q: -- if he survived and if he survived and if he survived you and John?

A: Yes.6

Q: And you said that that’s not just your intention, but it’s also your husband’s

intention at the time when the 1972 Grant Deed was signed, correct?

(S. Langton Depo. at 111:2-20)

Sara’s testimony as to her intentions is both highly relevant and admissible, and clearly creates

a triable issue of material fact regarding the manner in which title to the Property was recorded

in 1972, and whether Phillip had anything other than naked title that was contingent on the

creation of a business with his father in order to become more. As explained above, the

rebuttable presumption of joint tenancy created when a deed conveys property to grantees as

“joint tenants” can be overcome by evidence establishing a common understanding or

agreement that the ownership was to be other than that form of ownership. (See Clark v.

Carter, supra, 265 Cal.App.2d at 294.) Plaintiffs have submitted such evidence and thus

rebutted the presumption. It is not clear to the Court how evidence that Philip contributed to the down payment

for the purchase of the Property defeats the evidence submitted by Plaintiffs showing a triable

issue concerning the parties’ intentions and the manner in which title to the Property was

recorded in 1972, particularly Sara’s deposition testimony. Defendants proffer additional

evidence in support of their reply in this regard, particularly further deposition testimony taken

from Sara after Defendants filed their moving papers, but because this was first introduced in

the reply, the Court will not consider it.6 (See Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th

6 Plaintiffs object to the Court’s consideration of this evidence and have submitted a written brief to that effect.

They also explain that they did not get a chance to examine Sara at her second deposition because it was cut short

http://dtsearch7/dtSearch/Data/RsrchCVL/1-18-330000/332114.02msj.doc#footnote6

227, 241 [“The general rule of motion practice, which applies here, is that new evidence is not

permitted with reply papers … . [T]he inclusion of additional evidentiary matter with the reply

should only be allowed in the exceptional case … and if permitted, the other party should be

given the opportunity to respond”]; also see Alliant Ins. Services, Inc. v. Gaddy (2008) 159

Cal.App.4th 1292, 1308 [stating that whether to accept new evidence with reply papers is

vested in the trial court’s sound discretion].) The Court therefore finds that there are triable

issue of material fact and consequently Defendants’ motion for summary judgment is

DENIED.

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due to technical difficulties and the parties have to this point been unable to reschedule and resume it. Even if the

Court was somehow disposed to considering the additional testimony submitted by Defendants in support of their

reply, Plaintiffs inability to examine Sara would militate against actually doing so.

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Case Name: Mariia Kravchuk v. Taylor Morrison of California, LLC

Case No.: 18CV322457

BACKGROUND

Before the Court are the Motions of Defendants Tina Longo, Taylor Beck, Joyce Lee

and James Ganion (Moving Defendants) for sanctions under section 128.7 of the Code of Civil

Procedure ( CCP §128.7 ) against Mariia Kravchuk (Plaintiff ) in connection with Plaintiff’s

third amended complaint ( TAC ). Although the motions were filed separately, they involve

substantially similar points of law and fact regarding the allegations in Plaintiff’s TAC. In

apparent recognition of that fact, Plaintiff filed a single opposition to Defendant’s separately

filed motions. The Court will adopt a similar approach and issue a single written ruling with separate findings and orders.

Moving Defendants’ motions are made pursuant to Code of Civil Procedure §128.7 on

the grounds that Plaintiff violated Code of Civil Procedure §128.7(b) by the following conduct:

1) Plaintiff’s TAC was presented to the Court primarily for an improper purpose, namely to

harass Moving Defendants and to needlessly increase the cost of litigation; 2) when Plaintiff

filed her TAC she did so knowing the claims and legal contentions against Moving Defendants

were not warranted by existing law or by a non-frivolous argument for the extension,

modification, or reversal of existing law or the establishment of new law; 3) When Plaintiff

filed her TAC she did so knowing the allegations and other factual contentions against Moving

Defendants did not have evidentiary support and were not likely to have evidentiary support

after a reasonable opportunity for further investigation or discovery.

DISCUSSION

I. Applicable Law

Section 128.7, subdivision (c), authorizes a trial court, after “notice and a reasonable

opportunity to respond,” to impose an “appropriate sanction” upon an attorney, law firm, or

party who has engaged in conduct the court determines to be a violation of any of the

provisions set forth in subdivision (b) of that section. Subdivision (b) provides that:

By presenting to the court, whether by signing, filing, submitting, or later

advocating, a pleading, petition, written notice of motion, or other similar paper,

an attorney or unrepresented party is certifying that to the best of the person's

knowledge, information, and belief, formed after an inquiry reasonable under

the circumstances, all of the following conditions are met.

(1) It is not being presented for an improper purpose, such to harass or to cause

unnecessary delay or needless increase in the cost of litigation.

(2) The claims, defenses, and other legal contentions therein are warranted by

existing law or by a non-frivolous argument for the extension, modification, or

reversal of existing law or the establishment of new law.

(3) The allegations and other factual contentions have evidentiary support or, if

specifically so identified, are likely to have evidentiary support after a

reasonable opportunity for further investigation or discovery.

(4) The denials of factual contentions are warranted on the evidence or, if

specifically so identified, are reasonably based on a lack of information or

belief.

A motion for sanctions under Section 128.7 cannot be filed until 21 days after it has

been served on the party against whom sanctions are sought. (Code Civ. Proc., § 128.7, subd.

(c)(1).) This so-called “safe harbor” waiting period allows the party being served the

opportunity to correct the violation. (See Barnes v. Department of Corrections (1999) 74

Cal.App.4th 126, 132.)

II. Analysis

The motions of Moving Defendants Beck, Lee and Longo were filed on April 15 2021.

According to the proof of service filed with the Court, These Moving Defendants served the

motion on Plaintiff on March 22, 2021. Moving Defendant Ganion filed his motion on April

21, 2021. According to the proof of service, Moving Defendant served his motion on March

25, 2021. Moving Defendants’ motions were all served on Plaintiff 21 days before they were

filed, however none of the notices of motion purporting to start the safe harbor period

contained a hearing date.

A notice which fails to specify when a motion will be made renders that notice fatally

defective. (See Galleria Plus, Inc. v. Hanmi Bank (2009) 179 Cal.App.4th 535, 538 [motion

did not comply with safe harbor provision after it was filed the same day it was served because

the purported notice of motion served one month prior did not state when the motion would

come on for hearing].) The safe harbor provision is strictly enforced; substantial compliance is

not enough. (See Cromwell v. Cummings (1998) 65 Cal.App.4th Supp. 10, 15.) The motions

served to start the safe harbor period were defective.7

Plaintiff has filed substantive opposition. However, given the strict technical

requirements for seeking sanctions under CCP §128.7, the Court cannot find that Plaintiff, by

filing opposition to Moving Defendants’ motions, has waived the defective notice of motion.

In the Court’s view, the notice of motion served to start the safe harbor period must contain a

hearing date or the motion must be denied for failure to comply with the safe harbor period.

There being no proof which establishes that Moving Defendants complied with the safe harbor

period, Moving Defendants’ motions must be DENIED.

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7 Although the Court does not believe it would have cured the defect, there is no indication that amended notices

of motion with a hearing date were ever served on Plaintiff.

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Documents

Superior Court, State of CaliforniaSUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA Department 7, Honorable CHRISTOPHER G. RUDY, Presiding Courtroom Clerk TBA DATE: 02/11/21