Filed 8/6/21 Nourafchan v. Chateau Reeves CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
RAFI NOURAFCHAN et al., B300382 c/w B302625
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. Nos. BC683068,
v. 17STPB10158)
CHATEAU REEVES, LLC et al.,
Defendants and Respondents.
APPEAL from judgments of the Superior Court of Los
Angeles County, Michael C. Small, Judge. Affirmed.
Berger ♦ Harrison, Benjamin Berger and Richard
J. Radcliffe for Plaintiffs and Appellants.
Lurie, Zepeda, Schmalz, Hogan & Martin, Troy L. Martin
and Jimmy C. Chang for Defendants and Respondents.
__________________________
This case involves an intra-family dispute over a parcel of
property – specifically, the mother’s deed of an interest in
property known as “Sherman Way” to one of her sons. When
Sherman Way was sold, the son invested the proceeds in a second
property (“Reeves”). He then put Reeves in trust for one of his
sisters. After his death, two other siblings brought two related
actions against the sister and the trustees of the deceased
brother’s trust, seeking a share of Reeves, on the basis that it had
been understood within the family that the properties had been
held for the benefit of all siblings. Defendants obtained summary
judgment in both actions, on the ground that an oral promise to
hold property for others is unenforceable. In addition, the court
rejected, as unpleaded, an argument raised by the plaintiffs for
the first time in opposition to the motions for summary judgment.
Plaintiffs appealed in both actions. We consolidated the appeals
and now affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The legal issues in this case arise from a somewhat
complicated factual and procedural scenario.
1. The Family Members
We begin by identifying the members of the Nourafchan
family relevant to this appeal.
The family patriarch was Mousa (“Father”). His wife was
Aghdas (“Mother”). The only other individual in this generation
relevant to this appeal is Father’s brother, Elis (“Uncle”). All
three of these individuals are deceased.
Father and Mother had five children, four of whom are
relevant to this case. Two of them, Rafi and Keyhan, are the
plaintiffs. Their sister, Zaman, is one of the defendants. A
fourth, Darius, is now deceased. Darius is the son who held
2
partial title to Sherman Way and, subsequently, title to Reeves.
Darius’s decision to put Reeves in trust for Zaman triggered the
dispute in this case. (Darius also excluded the fifth sibling from
Reeves; that sibling is not involved in this appeal.)
2. The Chain of Title
For family purposes, Uncle was the initial owner of
Sherman Way. In 1981, Uncle deeded the property half to Father
and half to another one of their brothers, who is not a party in
the appeal.1
In 1987, Father deeded his interest to Mother, as her sole
and separate property. The deed was not signed by Father, but
by Uncle, as “his attorney in fact.”
In 1989, Mother quitclaimed her interest to son Darius.2
In 2000, Darius and the other owners of Sherman Way sold
the property to a third party.
The following month, Darius purchased Reeves. Plaintiffs
contend that Darius purchased Reeves with the proceeds of his
share of Sherman Way.
In 2013, Darius established a trust. The trust specifically
provides for Zaman, the main defendant here, and specifically
excludes his other siblings, including plaintiffs. Darius then
deeded Reeves to himself as trustee of the trust.3
1 This brother subsequently transferred his half to two of his
family members.
2 The deed stated, for purposes of documentary transfer tax,
that “[t]his conveyance is to secure a debt.” The parties make no
reference to this representation.
3 Two months later, Darius, as trustee, conveyed the
property to Chateau Reeves, LLC. Plaintiffs allege that
3
Darius died in 2017, leaving Zaman as the sole beneficiary
of his trust.
3. The Two Actions
Following Darius’s death, plaintiffs filed two simultaneous
actions to obtain a partial interest in Reeves. First, they filed a
civil action against sister Zaman and the trustees of Darius’s
trust. Second, they filed a petition in probate court regarding
Darius’s trust, seeking to confirm their partial ownership of
Reeves, and for an accounting.4 The actions were deemed related
and were heard before the same judge.
Ultimately, the defendants would obtain summary
judgment in the civil case and, thereafter, in the probate case.
We discuss the entirety of the proceedings on the civil case before
briefly turning to the probate case, which, for our purposes, was
largely identical.
4. Allegations of the Operative Complaint
The operative complaint is plaintiff’s first amended
complaint for declaratory relief, filed April 19, 2018. Plaintiffs
alleged two causes of action for declaratory relief.
The first challenged the validity of the 1987 deed from
Father to Mother, signed by Uncle as Father’s attorney in fact.
Plaintiffs argued that Uncle “did not have the authority to effect
the transfer on behalf of [Father]. As a result[,] the 1987 Deed
defendant Zaman is the sole manager of the LLC. Plaintiffs both
sued the LLC and claimed a beneficial interest in it. For our
purposes, the LLC is aligned with Zaman, and further references
to Zaman include the LLC where appropriate.
4 Although plaintiffs were “petitioners” in the probate case,
we refer to them as plaintiffs in both actions for convenience.
4
was ineffective.” Plaintiffs sought a declaration that the deed
was invalid or otherwise ineffective to transfer any interest
Father held in Sherman Way.5
The second cause of action challenged Darius’s act of
putting Reeves in trust for his sister alone. As to the intra-family
transfers of Sherman Way, plaintiffs alleged: “Within [Father’s]
family, title was transferred several times, with all parties in
agreement, sharing the understanding that the ownership was
not personal to any one of them but collective, for the benefit of
[Father], his wife, and his children - regardless of the words of
any particular deed.” Representing that Darius invested the
proceeds of Sherman Way in Reeves, plaintiffs alleged that
Darius “held some or all of the ownership in the Reeves Property
for the benefit of his siblings.” Plaintiffs alleged that a
controversy has arisen as to whether Darius held Sherman Way
and then Reeves as a constructive trustee for the benefit of his
siblings, and sought a declaration that he did.
5. Discovery
During discovery, defendants disclosed to plaintiffs two
powers of attorney Father had signed in favor of Uncle – one in
1958 and the other in 1970. Thereafter, plaintiffs responded to
defendants’ contention interrogatories. When asked to state all
facts supporting their allegation that Uncle “ ‘did not have the
authority to effect the transfer’ ” to Mother on behalf of Father,
plaintiffs each responded, “At the time the [operative complaint]
5 While the operative complaint did not explain the effect of
this sought-after voiding, plaintiffs would later argue that Father
died intestate, so they would have inherited a partial interest in
Sherman Way as his heirs. They took the position that Darius
was therefore an involuntary trustee of Reeves for their benefit.
5
was filed, Responding Party did not think a power of attorney
existed.”
6. Motion for Summary Judgment in the Civil Case
Defendants then moved for summary judgment on the first
amended complaint in the civil case.
A. Defendants’ Motion
As to the first cause of action that sought to declare the
deed from Father to Mother ineffective, defendants relied on the
powers of attorney which had granted Uncle the right to transfer
Father’s property. Defendants also relied on plaintiffs’ discovery
responses which admitted that the cause of action was asserted
before plaintiffs knew that Father had executed the powers of
attorney in favor of Uncle, and appeared to impliedly concede the
cause of action was baseless in light of those documents.
As to the second cause of action that sought to impose a
constructive trust over Reeves, defendants argued that the claim
was barred by the statute of frauds, as an oral promise to hold
property for others is unenforceable. Defendants further argued
that there was no evidence that Darius had wrongfully acquired
the properties at plaintiffs’ expense, which could have
conceivably given rise to a constructive trust.
B. Plaintiffs’ Opposition
Plaintiffs filed their opposition on May 7, 2019 – more than
a year after they filed their operative complaint. In their
opposition, they raised, for the first time, the argument that the
deed from Father to Mother was unenforceable because the
powers of attorney in favor of Uncle had been revoked as a
matter of law due to Father’s incapacity. (Prob. Code, § 4155
[subject to limitations regarding notice, the authority of an
attorney-in-fact under a nondurable power of attorney is
6
terminated by the incapacity of the principal to contract].)6
Specifically, plaintiffs submitted their own declarations to the
effect that, in 1987, prior to Uncle’s execution of the challenged
deed, Father had suffered a brain hemorrhage “which rendered
him unconscious and in a coma from which he never recovered”
until he passed away the following year.7
As to the cause of action seeking a constructive trust,
plaintiffs argued that triable issues of fact existed that Darius
had received title to Sherman Way from Mother on condition that
he hold it for the benefit of all family members. They submitted
their declarations not to the effect that such a condition had been
imposed when Darius took title, but only that Darius had
acknowledged that he held first Sherman Way, and then Reeves,
for the benefit of his siblings. Plaintiffs suggested either one of
two things was true about Darius’s representations: (1) if they
6 It is undisputed that the powers of attorney in favor of
Uncle were nondurable, i.e., they did not expressly state the
authority conferred would be exercisable notwithstanding the
principal’s subsequent incapacity. (Prob. Code, § 4124.) The
parties, however, have not discussed the notice limitations of
Probate Code section 4155, subdivision (b).
7 Declarations were submitted only from plaintiffs. There
was no evidence from doctors or other medical professionals
opining as to Father’s capacity throughout this time. Nor did
plaintiffs submit declarations from any other family members.
Plaintiffs’ opposition to defendants’ separate statement in
support of summary judgment states that “[Plaintiffs] and
Tannaz Sapponaro all support the contention that [Father] was
incapacitated at the time the 1987 Deed was executed.”
Sapponaro is the daughter of plaintiff Rafi. Plaintiffs submitted
no declaration (or deposition excerpt) from Sapponaro.
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were true, there was an agreement that he held the property for
the whole family; (2) if they were lies, Darius’s deception caused
plaintiffs to forego efforts to ensure they were on title.8
C. Defendants’ Reply
Defendants filed a reply. As to the first cause of action, on
the validity of the 1987 deed, defendants argued that plaintiffs’
theory that the powers of attorney were invalid due to Father’s
incapacity was a new theory, not pleaded in the complaint, and
which could not be raised for the first time in opposition to
summary judgment. Defendants also argued that plaintiffs’
evidence on the point, consisting solely of vague statements that
Father was at some points in 1987 observed to be unconscious,
was not sufficient to raise a triable issue of fact of incapacity.
On the second cause of action, defendants argued that
plaintiffs’ declarations were insufficient to establish a triable
issue of fact on their right to a constructive trust. Plaintiffs had
stated only that Darius had said he held the property for them
(and the rest of the family); these oral statements alone were
insufficient.
8 Defendants had sought summary judgment on the
alternative basis of the statute of limitations; the trial court
would ultimately reject the theory as a basis for summary
judgment. This latter argument appears to go to the statute of
limitations defense, not the merits of the declaratory relief cause
of action. In any event, plaintiffs did not specify what actions
they had forgone to ensure they were on title. They argued
generally that Darius’s “deception caused his siblings to forego
efforts they otherwise would have taken to assure (a) their right
to Sherman Way was expressly recorded and (b) their parents’
wishes were carried out.”
8
D. Hearing and Ruling
At the hearing on the motion, the trial court immediately
suggested that plaintiffs could not pursue their theory of Father’s
incapacity, as it had not been pleaded. Plaintiffs conceded that
they did not know of this theory when they pleaded that Uncle
lacked the authority to execute the 1997 deed – because they did
not then know of the powers of attorney at all – but nonetheless
argued that the theory that the powers of attorney were invalid
due to incapacity was incorporated in their allegation that Uncle
“did not have the authority to effect the transfer on behalf of
[Father].”
The court then inquired of plaintiffs as to any other claimed
triable issues of fact. Plaintiffs relied on Darius’s statements
that he was holding the property for his fellow family members.
Defendants argued that the statements did not establish a triable
issue of material fact, because there can be no oral agreement to
hold a property in trust for another.
The trial court granted summary judgment, specifically
holding that incapacity had not been pleaded or raised in
discovery, so could not be raised for the first time in opposition to
summary judgment. Plaintiffs did not ask for leave to file a
further amendment of the complaint.
7. Motion for Summary Judgment in the Probate Case
Having succeeded in obtaining summary judgment in the
civil case, defendants filed a similar motion in the probate
proceeding.
There was one difference between the two cases. The
operative probate petition was the first amended petition, filed
April 18, 2018 – the petition sought to confirm ownership of an
asset (Reeves) and sought an accounting. Generally speaking,
9
that petition raised similar theories to the first amended
complaint in the civil case – arguing both that the 1987 transfer
from Father to Mother was “ineffective” and that Darius had held
title to the properties for the benefit of his siblings.
However, on May 3, 2019 – after plaintiffs had filed their
opposition to the summary judgment motion in the civil case –
plaintiffs purported to file a “Verified Second Supplement to
Petition,” which suggested that the 1987 deed was ineffective
because the powers of attorney had been revoked by operation of
law due to Father’s incapacity. This supplement – which, despite
its caption, was not verified – states that it was filed “in order to
address Probate Examiners Notes.”9 The Probate Examiner had
apparently suggested a supplement was required “to explain why
petitioners allege that the 1987 Deed was invalid and/or
ineffective”; plaintiffs responded by explaining they were “of the
opinion” that the deed was ineffective due to Father’s incapacity.
The plaintiffs did not, however, move to amend their petition to
allege this incapacity theory.
When defendants moved for summary judgment in the
probate case on identical grounds as their successful motion in
the civil case, plaintiffs opposed by relying on the “Verified
9 Los Angeles Superior Court Rules, rule 4.4 states that
“Probate Notes” are available online in advance of a hearing. The
“Matters to Clear” section of the Probate Notes “informs the
parties of additional documents that are necessary to justify
approval of the petition.” Matters listed under “Matters to Clear”
must be cleared prior to the hearing date, at risk of continuance
or denial without prejudice. The appellate record does not
contain the Probate Notes to which plaintiffs claim they were
responding. Nor are they identified in the superior court docket.
10
Second Supplement to Petition,” arguing that it had pleaded the
incapacity theory. In reply, defendants argued that the
document was a nullity that should be disregarded – it was
neither verified nor an amended pleading, and plaintiffs had not
sought leave to file the document.
At the hearing on the summary judgment motion, the court
agreed with defendants that incapacity was not alleged,
explaining, “There is no second amended petition. There’s a
supplement that’s not verified by your clients. [¶] The
supplement doesn’t take the place of an amendment. The
supplement supplements. It doesn’t go back and make new
allegations. That’s the role of an amended petition.” The court
granted summary judgment.
8. Judgment and Appeals
Judgment was entered in favor of defendants in both cases.
Plaintiffs filed timely notices of appeal. We consolidated the
appeals for briefing, argument and decision.
DISCUSSION
1. Standard of Review
On appeal of a summary judgment, “[w]e apply the same
three-step analysis required of the trial court. First, we identify
the issues framed by the pleadings since it is these allegations to
which the motion must respond. Second, we determine whether
the moving party’s showing has established facts which negate
the opponent’s claim and justify a judgment in the moving party’s
favor. When a summary judgment motion prima facie justifies a
judgment, the third and final step is to determine whether the
opposition demonstrates the existence of a triable issue of
material fact. [Citations.] In so doing, we liberally construe the
opposing party’s evidence, strictly construe the moving party’s
11
evidence, and resolve all doubts in favor of the opposing party.
[Citations.]” (Hutton v. Fidelity National Title Co. (2013)
213 Cal.App.4th 486, 493–494.)
2. As Incapacity Was Not Pleaded, Defendants Were Not
Required to Defeat It
As discussed above, a summary judgment motion must
respond to the allegations of the pleadings. “The pleadings play a
key role in a summary judgment motion and ‘ “ ‘set the
boundaries of the issues to be resolved at summary judgment.’ ” ’
[Citation.] ‘[T]he scope of the issues to be properly addressed in
[a] summary judgment motion’ is generally ‘limited to the claims
framed by the pleadings. [Citation.] A moving party seeking
summary judgment or adjudication is not required to go beyond
the allegations of the pleading, with respect to new theories that
could have been pled, but for which no motion to amend or
supplement the pleading was brought, prior to the hearing on the
dispositive motion. [Citations.]’ [Citations.]” (Jacobs v. Coldwell
Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438,
444.)
Here, plaintiffs’ theory that the powers of attorney under
which Uncle acted when he signed the 1987 deed were ineffective
because they had terminated as a matter of law due to Father’s
incapacity was simply not pleaded in the operative complaint in
either action. While the first amended complaint and first
amended petition had alleged the deed was “ineffective,” neither
pleading even mentioned the powers of attorney or Father’s
mental state, much less alleged that the former were invalid due
to the latter. Plaintiffs’ responses to contention interrogatories,
which could have served to flesh out the narrow language of their
pleadings, simply represented that plaintiffs had asserted the
12
deed was invalid before they knew of the existence of the powers
of attorney. (See Jacobs v. Coldwell Banker, supra,
14 Cal.App.5th at p. 445 [“Finally, if plaintiffs’ complaint left any
doubt that their claims were based on the [theory pleaded], and
not on the [theory raised in opposition to summary judgment],
their interrogatory responses removed that doubt”].) Summary
judgment was properly granted because plaintiffs had no
admissible evidence to dispute that Father’s interest in Sherman
Way was legally conveyed from Father to Mother to Darius, and
that Darius’s purchase of Reeves did not redound to plaintiffs’
benefit.
That plaintiffs attempted to plead the theory in their so-
called “Verified Second Supplement to Petition,” does not lead to
a different result in the probate case. That document, which was
an unverified attempt by plaintiffs’ counsel to respond to the
Probate Notes, was not a pleading. Were it an amended
pleading, it could not be filed without leave.10 (Code Civ. Proc.,
§ 472.) In their reply brief on appeal, plaintiffs suggest the facts
that the document was neither verified nor filed with leave of
court should be overlooked (as “hair-splitting”) because, despite
10 Our concern is not that the document purported to be a
supplemental pleading rather than an amendment; that might be
an improper elevation of form over substance. But the document
was not a supplemental pleading; it did not allege “facts material
to the case occurring after the former complaint.” (Code Civ.
Proc., § 464, subd. (a).) And even if properly characterized as a
pleading, it was ineffective, as it was filed without leave. We
believe, however, that the document was what it purported to be:
an informal “supplement” in order to respond to the Probate
Examiner’s Notes – not by means of additional allegations, but by
a simple explanation from an attorney.
13
these faults, the document nonetheless succeeded in giving
defendants notice that plaintiffs were pursuing the incapacity
theory. We disagree. Opposition papers are not a substitute for
an amended pleading (Hutton v. Fidelity National Title Co.,
supra, 213 Cal.App.4th at p. 499); nor can an unverified
“supplement” serve as such a substitute.
3. There Is No Triable Issue of Fact That Darius Held
the Properties in Trust for All His Siblings
In their second cause of action in both the amended
complaint and the amended petition, plaintiffs sought a
declaration of a constructive trust over Reeves, claiming that
Darius held Sherman Way and, thereafter, Reeves for the benefit
of all his siblings.
Defendants, as moving parties, established that Darius
took title in his name alone, and that plaintiffs had no writings
evidencing their claim that Darius took title on behalf of anyone
else.
Plaintiffs sought to raise a triable issue of fact with their
declarations that Darius, from time to time, orally represented
that he held the properties for his siblings. That is, in a word,
insufficient. Probate Code section 15206 explains that a trust in
real property is not valid unless evidenced in writing or by
operation of law. Conceding the absence of a writing, plaintiffs
argue that the trust arose by operation of law, as a constructive
trust. The doctrine of constructive trust is predicated on Civil
Code section 2224, which provides, “One who gains a thing by
fraud, accident, mistake, undue influence, the violation of a trust,
or other wrongful act, is, unless he or she has some other and
better right thereto, an involuntary trustee of the thing gained,
for the benefit of the person who would otherwise have had it.”
14
To establish a constructive trust, plaintiffs must prove: the
existence of a res (property or some interest in the property); the
plaintiff’s right to that res; and the defendant’s acquisition of the
res by some wrongful act. (Pacific Lumber Co. v. Superior Court
(1990) 226 Cal.App.3d 371, 377.)
Plaintiffs’ action fails on the third element; they cannot
establish acquisition of the property by wrongful act. The only
facts on which they rely are their declarations that after the fact
Darius stated he held the property for them. “[T]he mere failure
to perform an oral promise to convey real property is not a fraud
and a constructive trust cannot be founded on such fact alone.”
(Walter H. Leimert Co. v. Woodson (1954) 125 Cal.App.2d 186,
192.)
On appeal, plaintiffs tack once more and now suggest that
Darius “received title to Sherman Way from [Mother] on the
condition that he hold it for the benefit of his siblings, in which
case it was wrongful of him to later treat it as his own.” But this
was not pleaded; plaintiffs alleged only that all intra-family
transfers were made “with all parties in agreement, sharing the
understanding that the ownership was not personal to any one of
them but collective, for the benefit of [Father], his wife, and his
children – regardless of the words of any particular deed.” The
probate petition similarly alleged only that Darius held title “for
the benefit of his siblings.” At no point did plaintiffs plead that
Mother transferred Sherman Way to Darius on condition that he
hold it for his siblings. Even if it had been pleaded, plaintiffs
presented no evidence on this point. Their only evidence in
opposition to the motion for summary judgment was their
declarations that Darius had, on some occasions, stated that he
held the property for them. They presented no evidence that
15
Mother conditioned the transfer of her interest in Sherman Way
to Darius on his promise to hold the property for his siblings.
Without such evidence, plaintiffs do not raise a triable issue of
fact that Darius’s acquisition of the property was wrongful, and
their claim for a constructive trust fails.
DISPOSITION
The judgments are affirmed. Plaintiffs shall pay
defendants’ costs on appeal.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
KIM, J.
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