Shamaan v. Cotta CA2/5

Filed 11/30/21 Shamaan v. Cotta CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

IHSAN N. SHAMAAN, B305682, B309977

Appellant, (Los Angeles County Super. Ct.
Nos. 18NWCV00199, BC583501)
v.

SAAD Y. COTTA,

Respondent.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Olivia Rosales and David Sotelo, Judges.
Affirmed.
Law Offices of James A. Frieden, Benjamin I. Bastomski
and James A. Frieden; Czech & Howell and Jeffery J. Czech for
Appellant.
Thomas Vogele & Associates, Thomas A. Vogele, Timothy
M. Kowal and Teddy T. Davis for Respondent.

__________________________
 Some years following their divorce, Khulood Cotta (wife)
successfully sued Ihsan Shamaan (husband) to quiet title to real
property and for nonpayment of a loan exceeding $1 million.
Wife prevailed, quieting title to the properties and obtaining a
money judgment for the unpaid loan. A few years later, wife died
intestate. Husband sued her estate to obtain title to the
properties; judgment was entered against him following the
estate’s successful demurrer. When the estate sought to enforce
the underlying money judgment against husband, he moved to
quash the writ of execution. That motion was denied. Husband
appeals in both cases. We consolidated the appeals and now
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Properties Were Acquired During Marriage
Husband and wife, both doctors, were married in 1972, and
separated in 1992. In addition to her claim for nonpayment of
the loan, wife sought to quiet title on two properties acquired
during their marriage. The first, 4171 Humboldt, in Huntington
Beach, was acquired in 1986. They held title as “Husband and
wife, as joint tenants.” The second property consisted of two
parcels, 4946 East Florence Avenue and 7231 Wilcox Avenue, in
Bell. Husband and wife obtained title in 1993 (post-separation)
also as “Husband and Wife, as Joint Tenants.” Beginning in
1994, husband and wife jointly operated a medical center on the
Florence/Wilcox property.
2. Wife Obtained Title in the Divorce
Husband and wife’s divorce was finalized on September 10,
1998. The divorce decree distributed a number of the parties’
assets. The Humboldt property was awarded to wife as part of
her division of community property. Florence/Wilcox was
confirmed as wife’s separate property. It appears that deeds

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effecting these distributions had been recorded in 1997. Husband
transferred all his interest in Humboldt to wife, as her sole and
separate property, via Interspousal Transfer Grant Deed. He
quitclaimed Florence/Wilcox to her “Per Marital Settlement
Agreement.”
3. Husband Obtained Title in 2010
Twelve years later, in November 2010, wife signed
quitclaim deeds for both properties in favor of husband.
4. In 2015, Wife Obtained Judgment Against Husband
For Return of the Properties and Over $1.3 Million
A. Wife’s Complaint
On May 29, 2015, wife filed suit against husband (wife’s
quiet title action). Her verified complaint sought to quiet title to
the properties, alleging that husband had wrongfully induced her
into signing the 2010 quitclaim deeds while she was “hospitalized
with a life-threatening condition, and was temporarily
incapacitated due to the effect of her medication and medical
condition.” She also alleged that, beginning in 2008, she had
loaned husband over $1.37 million, which he had agreed to repay,
with interest, beginning in 2014, but had not done so.
B. Husband’s Answer
In husband’s July 29, 2015 answer, he admitted a number
of wife’s allegations.1 Specifically, he admitted the loan and that
it was unpaid, although he denied that his nonpayment
constituted a breach. He also admitted that wife was

1 Husband was self-represented. His answer claimed to be
verified, but the document contained no verification, nor was it
signed. While husband now contends he was untruthful in the
positions he took in the answer, he does not suggest that he did
not, in fact, take them.

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hospitalized when she signed the deeds in his favor, but denied
exerting undue influence or that the deeds lacked consideration.
C. Judgment in Favor of Wife
Based on husband’s answer, wife obtained judgment on the
pleadings with respect to several of her causes of action related to
the nonpayment of $1.37 million (breach of oral contract,
promissory estoppel, unjust enrichment, and money due).
Thereafter, wife sought summary adjudication of her
causes of action to cancel the 2010 quitclaim deeds and quiet title
in herself. At the summary adjudication hearing, husband
indicated that he did not oppose wife’s motion, “clarifying (not
under oath) that he fully intended to transfer the deeds and the
property back to [wife] after she recovered from the serious and
debilitating illness, during which he was providing her medical
services.” The court granted the motion, finding that wife’s
declaration gave rise to a presumption of undue influence and
husband’s statements in court established there was no triable
issue of material fact.
Judgment (the 2016 judgment) was entered in favor of wife,
in the amount of $1.37 million. The judgment also provided that,
on January 2, 2010, and at all times thereafter, wife was “the
owner in fee simple” of the properties. The judgment specifically
provided that no other person, including husband “now has any
estate, right, title, interest, or claim in or to the real properties,
or any part of the real properties, either legal or equitable,
present or future, vested or contingent.” The judgment was
recorded on November 17, 2016.
5. Wife Died in 2018
On July 11, 2018, wife died intestate. She possessed record
title to the properties. On September 28, 2018, wife’s brother,

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respondent Saad Cotta, was appointed administrator of her
estate.
6. Husband Pursued His Own Quiet Title Action
On December 27, 2018, husband filed suit against the
estate (husband’s quiet title action), alleging a number of causes
of action, all directed toward obtaining return of the Humboldt
and Florence/Wilcox properties (resulting trust, constructive
trust, equitable liens, declaratory relief, quiet title, and specific
performance).2
The basic theory of husband’s verified complaint was this:
wife’s quiet title action was actually a collusive litigation (which
husband prefers to call “collaborative”), jointly pursued by
husband and wife for the purposes of defrauding property tax
authorities and husband’s creditors. Specifically, husband
alleged the following factual scenario: He had made all down
payment, mortgage, property tax and property insurance
payments for the properties, giving rise to his ownership.
Although wife obtained the properties in the divorce, the division
of property in the divorce did not “constitute the totality of their
actual agreement,” and, instead, title was placed in wife’s name
only to protect against future lawsuits and other creditors;
husband and wife had always believed he retained equitable
ownership. In 2010, husband and wife had decided to finally
effectuate their true divorce agreement, and wife quitclaimed the

2 Husband’s complaint also referred to, and attached, a 2011
written agreement whereby wife transferred to husband
ownership of the medical center, granting him the right to run
the clinic in whatever way he deemed necessary. Husband
sought no relief as to the medical center, but the 2011 agreement
would play a part in this litigation.

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properties to husband. They had not anticipated that this
transfer would result in the properties being reassessed for the
purpose of property taxes. Husband could not afford the
resulting increase in taxes, and sought legal counsel on how to
avoid payment. Counsel advised that the taxes would revert to
their prior level if the properties were transferred back to wife.
However, husband was, at this point, facing a million dollar
judgment in favor of a third party, and could not simply transfer
the properties to wife without risking the transfers being set
aside by his judgment creditor as fraudulent. Counsel therefore
conceived a plan whereby title would be transferred back to wife
by means of a collusive litigation. The 2016 judgment was the
“outcome desired by both parties. Legal title was restored to
[wife]. However, pursuant to the agreement between [husband
and wife], equitable title remained held by [husband], as was
always the intention of the parties.”
7. As Successive Demurrers Were Filed, Husband
Changed His Theories
The estate successfully demurred to the complaint, on the
basis of res judicata and collateral estoppel. Defendant then filed
his first and second amended verified complaints, which led to
two more successful demurrers by the estate. In each of his
amended complaints, husband reasserted his allegations that
wife’s quiet title action was collusive. However, he added
allegations intended to avoid res judicata and collateral estoppel.
Specifically, in his first amended complaint, husband
alleged that “[a]fter judgment was entered on August 3, 2016,
[wife] renewed her oral agreement to hold the Subject Properties
for [husband] as a constructive trustee.” In his second amended
complaint, the operative complaint, this allegation changed. No
longer did wife simply “renew[]” her prior agreement, but

6
husband claimed a new agreement, supported by new
consideration, following the 2016 judgment. He specifically
alleged that, following the judgment, wife orally agreed to
“transfer vesting of the properties” to him. In exchange, he would
assume full responsibility for running the medical center, and
continue to pay her a monthly stipend wholly unrelated to the
amount of patients she would see.
8. The Estate’s Final Demurrer Was Sustained and
Judgment Was Entered
When the estate demurred to the second amended
complaint, it argued against husband’s suggestion of a
postjudgment agreement supported by the consideration of
husband’s agreement to run the medical center and pay wife a
monthly stipend. The estate pointed out that, based on
husband’s own exhibit, wife had conveyed the medical center to
husband in 2011, nearly five years prior to the judgment,
meaning husband’s agreement to run the medical center could
not have post-dated the judgment.
The trial court sustained the demurrer, concluding
husband was barred by res judicata and collateral estoppel from
relitigating wife’s title to the property, as resolved by the 2016
judgment. The court was also unpersuaded by husband’s
attempts to allege a postjudgment oral agreement. The court
observed that husband had alleged not a single postjudgment
agreement, but an ongoing agreement which predated wife’s
quiet title action.
Judgment of dismissal of husband’s quiet title action was
entered on February 3, 2020. Husband filed a timely notice of
appeal.

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9. The Estate Commenced Enforcement of the Monetary
Portion of the 2016 Judgment
In 2019, while husband’s quiet title action was pending, the
estate obtained several writs of execution on the monetary
portion of the 2016 judgment in wife’s earlier quiet title action.
In January 2020, the estate obtained an order for sale of property
husband owned at 304 Muirfield Lane, in Walnut.3
10. Husband Moved to Quash the Writ of Execution
On July 9, 2020, husband moved to quash the writ of
execution and cancel the planned auction of Muirfield.4 Husband
argued the writ should be quashed on the basis that the entire
lawsuit was a “sham” to avoid taxes and wife had promised, both
before and after the case was filed, not to enforce the judgment.
He argued that wife herself had kept her promise not to enforce
the 2016 judgment; it was only wife’s estate that sought to collect
after her death.
Husband argued the court should quash the writ under
both law and equity. His legal argument was based on wife’s
agreement not to enforce the 2016 judgment. His equitable
argument was as follows: Although wife’s quiet title action was
collusive, it did not effect the intended result of reducing the tax

3 The Muirfield property had originally been awarded to wife
in the divorce. The record does not indicate how husband later
came to hold his interest in Muirfield following the divorce. In
any event, the estate sought to sell husband’s undivided one-half
interest in the property to partially satisfy the $1.37 million
judgment against husband.

4 The auction was held; the estate was the successful buyer;
and the estate has since sold Muirfield to a third party. This
does not impact the current appeal; husband is challenging the
writ of execution, not the order of sale.

8
assessments on the property; and husband ultimately paid the
taxes in full, including penalties and interest. He also paid his
judgment creditor. As such, he had purged himself of his
wrongful conduct in engaging in the collusive lawsuit. Husband
argued the court should refuse to enforce the 2016 judgment, as it
would unjustly enrich wife’s estate. As between husband and
wife’s administrator, husband argued the equities were with him.
Husband relied on the doctrines of laches, equitable estoppel and
unclean hands.5
11. Husband’s July 9, 2020 Declaration Changed
Husband’s Allegations One Last Time
Husband submitted a July 9, 2020 declaration in
connection with his motion to quash the writ of execution. The
declaration is also relevant to his appeal of the judgment in
husband’s quiet title action. Specifically, at his request, we
granted judicial notice of the declaration in connection with that
appeal. Husband represents that the declaration sets forth the
facts he would allege if he were given leave to file a third
amended complaint.
In his declaration, husband again explained that he
“reposed trust and confidence in [wife] allowing her to retain
legal title to millions of dollars in real estate and to obtain the
judgment in this case, all on our agreement and her
representation that she was holding the real estate in trust for
me and that this judgment was simply a device to attempt to
reverse property tax revaluations. Eventually, I paid all of the
property taxes plus penalties and interest.” He stated that
between husband and wife, the 2016 judgment and the judgment

5 Husband accused the administrator of wife’s estate of
breaching wife’s agreement, which is “offensive to decency and
equity . . . .”

9
of dissolution “were always subordinate to our agreements
outside of court. (We believed it was legal to do this.)”
Husband’s declaration then explained, at length, numerous
financial arrangements he purportedly entered into with wife,
many of which predated the 2016 judgment. In summary, he
stated that a number of properties, including Humboldt and
Florence/Wilcox, had always been his separate property, but wife
agreed to hold title to them as an asset protection mechanism
(husband was a surgeon and wife a family practitioner; husband
believed surgeons were more likely to be sued). Both before and
after the 2016 judgment quieting title in wife’s favor, wife
assured husband that she held title to the properties on
husband’s behalf, and he paid the taxes and maintenance
expenses in reliance on her promises that she was holding the
properties in trust for him.
According to husband, wife worked for him at the medical
center “for many years” and he paid her “substantially more than
the value of her work [which was] part of her consideration for
keeping the properties in trust for [him].”6

6 Husband’s declaration was supported by a number of
exhibits, including monthly checks paid to wife, in amounts
somewhat near $4000 per month, from an account in the name of
the medical center. The exhibits raise more questions than they
answer. For example, a number of the checks were signed by
wife, not husband. Husband’s declaration explained that even
though the bank accounts were maintained in wife’s name, they
were husband’s accounts and he, with wife’s permission, signed
her name to the checks. Husband relied on no pay stubs, no bank
statements, no ledgers, and no accounting. He simply claims that
checks written to wife, by wife, on an account in the name of the
medical center actually constituted payment by husband of wife’s
agreed-upon stipend.

10
 Husband’s declaration did not assert the existence of a
specific agreement following the 2016 judgment by which he gave
wife any consideration for not enforcing it.7 Instead, he stated
that both he and wife “ignored the judgment in this case . . . ,
except that we used the judgment to transfer the properties back
to her for the purposes of asset protection.”
Although husband’s declaration was submitted in
connection with his motion to quash the estate’s writ of execution
on the monetary portion of the 2016 judgment, very little of the
declaration actually addressed the $1.37 million judgment itself.
Indeed, although husband represented that wife’s quiet title
action was jointly pursued for purposes of tax avoidance, he made
no effort to explain why it was that wife pursued a separate claim
for the $1.37 million. He simply stated that wife never loaned
him those funds and any allegations in her complaint and
admissions in his answer to the contrary “are incorrect.” He
stated, “We had agreed with respect to the judgment for money
that she would not attempt to enforce it against me, and she took

7 Husband instead refers to other agreements he and wife
purportedly made regarding their finances. For example, he
states, “In 2015 we also entered into an agreement relating to our
retirement.” (Emphasis added.) Under that agreement, husband
would continue paying wife $4,000 per month for the rest of her
life. Husband would sell Humboldt and Muirfield, and use the
money to build a multi-unit apartment building on
Florence/Wilcox, which would be the source of the $4,000 monthly
payments to wife. Husband would also “purchase a modest
house” for wife near where her brothers lived, and she would live
there “for free for the rest of her life.” Husband represented that,
prior to wife’s death, he was beginning to put this agreement into
effect.

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no steps to enforce the judgment for $1.37 million while she was
alive for a period of almost two years.” 8
12. The Estate Opposed the Motion to Quash
The estate opposed husband’s motion to quash the writ of
execution, on a number of bases. Among them, the estate argued
that husband’s arguments were not really directed to the writ of
execution itself, but were in actuality a collateral attack on the
underlying judgment in wife’s quiet title action. To the extent
husband suggested there was an agreement following the 2016
judgment by which wife agreed to hold the properties in trust for
husband, the estate argued the agreement violated the statute of
frauds, requiring trusts for real property to be in writing. (Prob.
Code, § 15206; Civ. Code, § 1624, subd. (a)(3).) The estate also
argued the equities were with the estate, not husband.
13. As Part of His Reply Memorandum, Husband Sought
A Day-Long Hearing
In his reply, husband again argued that the equities
favored quashing the writ of execution. In response to the
estate’s assertion of the statute of frauds, husband responded
that the postjudgment agreement could be enforced because it
had been partly performed and failure to enforce it would work
an unconscionable injury.

8 In his brief on appeal, husband suggests that the $1.37
million component of the 2016 judgment was “for the possible
purpose of transferring monetary assets to [wife] in advance of
tax assessors or other possible creditors.” There is nothing in the
record supporting husband’s assertion that this was the reason
for the monetary component of the judgment. To the contrary,
the record of the quiet title action confirms that the $1.37 million
judgment was on an unpaid loan which husband admitted in his
answer.

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 Husband also filed a request, under California Rules of
Court, rule 3.1306, for a hearing with seven hours of oral
testimony. Husband’s request indicated that the “nature and
extent” of his testimony “will be the facts and exhibits described
in his declaration” plus additional facts and exhibits “unearthed
by counsel and [husband] since the filing of the motion.” He
expected to testify to the agreements between husband and wife,
both before and after the 2016 judgment, including wife’s
purported agreement not to execute.9
14. Hearing, Ruling and Appeal
On October 14, 2020, the motion was argued by counsel and
taken under submission. The court’s minute order indicates
there was no court reporter or electronic recording monitor, so
there is no reporter’s transcript. Husband has made no effort to
obtain a settled statement on appeal. (Cal. Rules of Court, rule
8.137.)
The court issued its ruling on October 27, 2020. The court
began with the premise that the burden was on husband, as the
judgment debtor, to demonstrate why the writ of execution
should be quashed. After reviewing the statements in husband’s
declaration, the court ruled that the equities were against
husband. Specifically, if husband was correct and wife’s quiet
title action was collusive, then both husband and wife were
blameworthy for jointly committing fraud. But husband “was the
more blameworthy party because the scheme to reverse his
property tax liability would have solely benefited him.” The court
was not persuaded by husband’s argument that his fraud was

9 Husband had also submitted the declaration of his
employee, which confirmed husband’s declaration in a few
particulars. He represented that she would testify to the matters
in her declaration.

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purged because he had ultimately paid the taxes, stating that the
only evidence that husband had paid the taxes was his own
declaration – a declaration which, according to the court, “gives
this Court a reasonable feeling of uncertainty.” At bottom, the
court held that husband’s motion was a collateral attack on the
2016 judgment. To the extent husband asserted a postjudgment
agreement not to enforce the judgment, that agreement itself was
executed to perpetuate tax fraud and is therefore not enforceable.
The motion to quash was denied.
Husband filed a timely notice of appeal.
15. The Appeals Were Consolidated
After husband filed his opening briefs in his two appeals,
we granted his motion to consolidate for purposes of respondent’s
brief, reply brief, oral argument, and decision.
DISCUSSION
We first consider husband’s appeal from the judgment
following demurrer in husband’s quiet title action. Then, we
consider husband’s appeal from the denial of his motion to quash
the writ of execution on the 2016 judgment.
1. Husband’s Appeal of the Judgment in Husband’s
Quiet Title Action
Husband argues the court erred in sustaining without leave
to amend the estate’s demurrer to his second amended complaint.
Also, he argues that we should consider his declaration (from his
motion to quash the writ of execution) as the basis for a future
amendment.
A. Standard of Review
“In reviewing the sufficiency of a complaint against a
general demurrer, we are guided by long-settled rules. ‘We treat
the demurrer as admitting all material facts properly pleaded,
but not contentions, deductions or conclusions of fact or law.

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[Citation.] We also consider matters which may be judicially
noticed.’ [Citation.] Further, we give the complaint a reasonable
interpretation, reading it as a whole and its parts in their
context. [Citation.] When a demurrer is sustained, we determine
whether the complaint states facts sufficient to constitute a cause
of action. [Citation.] And when it is sustained without leave to
amend, we decide whether there is a reasonable possibility that
the defect can be cured by amendment: if it can be, the trial
court has abused its discretion and we reverse; if not, there has
been no abuse of discretion and we affirm. [Citations.] The
burden of proving such reasonable possibility is squarely on the
plaintiff. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311,
318.) To meet [the] burden of showing abuse of discretion, the
plaintiff must show how the complaint can be amended to state a
cause of action. [Citation.] However, such a showing need not be
made in the trial court so long as it is made to the reviewing
court.” (William S. Hart Union High School Dist. v. Regional
Planning Com. (1991) 226 Cal.App.3d 1612, 1621.)
B. The Demurrer Was Properly Sustained to the Second
Amended Complaint
Husband’s second amended complaint sought title to the
Humboldt and Florence/Wilcox properties on a number of
theories. Rather than consider each individual theory, we
instead focus on two time periods – husband’s claims arising
prior to the 2016 judgment and those arising after.
(1) Claims Prior to the 2016 Judgment are Barred
by Issue Preclusion
Issue preclusion, or collateral estoppel, “prohibits the
relitigation of issues argued and decided in a previous case, even
if the second suit raises different causes of action. [Citation.]
Under issue preclusion, the prior judgment conclusively resolves

15
an issue actually litigated and determined in the first action.
[Citation.]” (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th
813, 824.) “In summary, issue preclusion applies: (1) after final
adjudication (2) of an identical issue (3) actually litigated and
necessarily decided in the first suit and (4) asserted against one
who was a party in the first suit or one in privity with that party.
[Citations.]” (Id. at p. 825.)
To the extent husband’s quiet title action seeks the
Humboldt and Florence/Wilcox properties based on agreement or
conduct predating the 2016 judgment, it is barred by issue
preclusion. That judgment expressly held that wife was “the
owner in fee simple” of the properties and that no other person,
including husband, had any “right, title interest or claim in or to
the real properties.” This constitutes (1) a final adjudication; of
(2) the identical issue of whether husband had an interest in the
properties; (3) which was actually litigated by wife’s summary
adjudication motion; (4) against husband, a party to wife’s quiet
title action.
(2) Claims Based on a Postjudgment Oral
Agreement are Barred by the Statute of Frauds
On appeal, husband argues that the entirety of his second
amended complaint is based on rights that arose after the 2016
judgment – specifically, wife’s postjudgment oral agreement to
give husband equitable title in the properties anew.
Claims based on this theory are barred by the statute of
frauds.10 Probate Code section 15206 explains that a trust in real

10 Husband rightly observes that the estate did not argue the
statute of frauds in husband’s quiet title action. The estate did,
however, raise the theory in connection with husband’s motion to
quash the writ of execution, giving husband the opportunity to

16
property is not valid unless evidenced in writing or by operation
of law. Husband argues 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.” 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. (Pac. Lumber Co. v.
Superior Court (1990) 226 Cal.App.3d 371, 377.) Husband’s
argument of a constructive trust necessarily fails on the third
element. He cannot establish wife gained the property by a
wrongful act, because she gained the property by the 2016
judgment. Husband is attempting to rely on a new postjudgment
agreement giving him an interest in the property which was
already owned by wife. “[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.)
C. Husband Cannot Amend to State a Claim
Having concluded the trial court did not err in sustaining
the demurrer to husband’s second amended complaint, we turn to
husband’s argument that he should be permitted to amend to
state a claim.

address it before the trial court. In any event, if “another proper
ground for sustaining the demurrer exists, this court will still
affirm the demurrer.” (Abatti v. Imperial Irrigation Dist. (2020)
52 Cal.App.5th 236, 295.)

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 First, husband argues he could allege in an amended
complaint two additional bases for avoiding the statute of frauds:
equitable estoppel and part performance. He argues that wife’s
promise to give him back the properties must be enforced because
he expended funds in reliance on her promise and the estate
would be unjustly enriched if it were permitted to retain the
properties. Husband alleges he paid wife a monthly stipend and
paid taxes on the properties. He does not allege that he took
possession of the properties, made improvements on them, or
irrevocably changed his position. That is the type of unjust
enrichment that would arguably avoid application of the statute
of frauds. (Mulli v. Mulli (1951) 105 Cal.App.2d 68, 73-74.)
Next, armed with his declaration, husband hopes, for the
first time, to bring a collateral attack against the 2016 judgment
itself, for extrinsic fraud/mutual mistake. Husband argues that
he would allege that he and wife were operating under a mutual
mistake of law with regard to the possible effect of the judgment
in wife’s quiet title action. Specifically, as stated in his
declaration, “both of us understood that the [2016] Judgment was
simply a formality in furtherance of our agreement, and neither
at any time before the judgment believed it could have a possible
legal effect of changing our legal rights in the concerned
properties.”
In exceptional circumstances, a court sitting in equity can
set aside a valid final judgment. (Kulchar v. Kulchar (1969)
1 Cal.3d 467, 470.) “Extrinsic fraud usually arises when a party
is denied a fair adversary hearing because he has been
‘deliberately kept in ignorance of the action or proceeding, or in
some other way fraudulently prevented from presenting his claim
or defense.’ [Citation.]” (Id. at p. 471.)

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 “The right to relief has also been extended to cases
involving extrinsic mistake. [Citations.] ‘In some cases . . . the
ground of relief is not so much the fraud or other misconduct of
the defendant as it is the excusable neglect of the plaintiff to
appear and present his claim or defense. If such neglect results
in an unjust judgment, without a fair adversary hearing, the
basis for equitable relief is present, and is often called “extrinsic
mistake.” ’ [Citation.]” (Kulchar v. Kulchar, supra, 1 Cal.3d at
p. 471.)
The facts in husband’s declaration would not establish
extrinsic fraud or mutual mistake. Husband did not fail to fully
defend against wife’s quiet title action because he was
fraudulently prevented from doing so or he suffered from
excusable neglect; he did not enthusiastically defend because, as
he argued in his motion to quash, the quiet title action was a
“sham” engineered to reverse tax assessments.
“Relief is . . . denied when the complaining party has
contributed to the fraud or mistake giving rise to the judgment
thus obtained. [Citations.] ‘If the complainant was guilty of
negligence in permitting the fraud to be practiced or the mistake
to occur equity will deny relief.’ [Citation.]” (Kulchar v Kulchar,
supra, 1 Cal.3d at p. 473.)
Husband recognizes that he was culpable in his collusive
pursuit of wife’s quiet title action, but suggests he should
nonetheless prevail because both he and wife were at fault,
requiring a balancing of the equities. Husband is mistaken.
We are guided by Fonner v. Martens (1921) 186 Cal. 623
(Fonner). In that case, the plaintiff, in an apparent effort to
shield assets from the plaintiff’s wife, who was divorcing him,
deeded a property to the defendant. Following the divorce, the
plaintiff’s wife brought an action to partition the property,

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alleging that she and the plaintiff each owned half the property.
Both the plaintiff and the defendant testified that, instead, the
plaintiff had previously sold the property entirely to the
defendant. The partition court believed them and held the
defendant owned the property, to the exclusion of both the
plaintiff and plaintiff’s wife. (Id. at pp. 624-627.) After that
judgment was final, the plaintiff claimed that he had simply
mortgaged the property to the defendant, and sought to quiet his
title. (Id. at pp. 623-624.) The trial court found in favor of the
plaintiff, and our Supreme Court reversed, holding the plaintiff
bound by the judgment in the partition action. (Id. at p. 628.) “It
is well settled that the mere fact that the judgment was procured
by misrepresentations and false testimony in matters intrinsic to
the action cannot afford respondent any relief, even if he had not
himself been a party to the fraud [citations] and a judgment
which the parties themselves have obtained by fraudulent
collusion is not open to attack by either party.” (Id. at p. 628,
italics added.) There was no balancing of the equities; the court
simply left the parties where it found them. Indeed, the plaintiff
argued that the scheme had been of the defendant’s design. The
court stated that, if this were true, it would not relieve the
plaintiff from “the onus of his share in the deceit.”11 (Id. at
p. 629.)

11 Husband relies instead on Bradley Co. v. Bradley (1913)
165 Cal. 237, a case which the Fonner court distinguished.
(Fonner, supra, 186 Cal. at p. 630.) Bradley involved no intent to
defraud; the transferor had conveyed the property in trust to his
future wife, simply because he wanted to obtain a loan on the
property without his employer knowing. (Id. at pp. 238-240.)
That is a far cry from this case, in which husband claims he

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 Husband claims that, since he ultimately paid the property
taxes and his judgment creditor, he has purged his unclean
hands. The assertion does not support the claimed result.12
Husband is here seeking equitable relief from a judgment that by
his admission he fraudulently colluded to obtain. He now claims
mutual mistake, seeking to undo the judgment, on the basis that
his planned fraudulent scheme failed to work. This is not the
type of extraordinary circumstance which justifies equitable
relief.
2. Husband’s Appeal of the Denial of His Motion to
Quash the Writ of Execution
Husband raises three arguments against the court’s ruling
on his motion to quash the writ of execution: (1) he presented
sufficient evidence that wife had agreed not to enforce the 2016
judgment; (2) he presented sufficient evidence that events
occurring after the entry of the 2016 judgment render its
enforcement inequitable; and (3) the court erred in denying him a
hearing with oral testimony.
Before we address husband’s arguments, we believe an
overview of satisfaction of judgment procedures is helpful.

always was the owner of the property but shifted paper title back
to wife in order to commit tax fraud and defraud creditors.

12 Husband relies on authority that a transfer intended to
defraud a creditor loses its fraudulent character when the
creditor is not, in fact, defrauded. (E.g., Estate of Blanco (1978)
86 Cal.App.3d 826, 834, 836; Hill v. Younkin (1969)
274 Cal.App.2d 880, 883-884.) These cases dealing with the
unclean hands caused by a fraudulent transfer are inapplicable
here, where the fraud was a collusive lawsuit.

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 A. Procedures For Documenting Satisfaction of
Judgment
A judgment “may be satisfied by payment of the full
amount required to satisfy the judgment or by acceptance by the
judgment creditor of a lesser sum in full satisfaction of the
judgment.” (Code Civ. Proc., § 724.010, subd. (a).) The judgment
will also be satisfied if the creditor has executed a binding
covenant not to execute the judgment at all. (Yanchor v. Kagan
(1971) 22 Cal.App.3d 544, 552.)
“When a money judgment is satisfied, the judgment
creditor immediately shall file with the court an
acknowledgement of satisfaction of judgment.” (Code Civ. Proc.
Code, § 724.030.) If the judgment has been satisfied, the
judgment debtor may serve on the judgment creditor a written
demand that the judgment creditor file the acknowledgement of
satisfaction with the court. (Code Civ. Proc., § 724.050, subd. (a).)
If the judgment creditor does not comply with the demand within
15 days, the judgment debtor may apply to the court for an order
requiring the judgment creditor to comply. If the court
determines the judgment has been satisfied, the court will either
order the creditor to comply with the demand or direct the clerk
to enter satisfaction of judgment. (Code Civ. Proc., § 724.050,
subd. (d).) “[S]ection 724.050 provides the method for a judgment
debtor to enforce a judgment creditor’s agreement to accept less
than the full amount of the judgment and obtain an
acknowledgment of satisfaction of judgment after tendering or
paying that agreed-on lesser amount. When a judgment debtor
files a section 724.050 motion, the court may determine whether
there was an agreement for satisfaction of the judgment by
payment of less than the full amount of the judgment.
[Citation.]” (Horath v. Hess (2014) 225 Cal.App.4th 456, 466.)

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 Husband did not follow this procedure. Instead, he sought
to establish the judgment was satisfied by challenging the writ of
execution. “[A] court of equity may quash the execution and
cancel the judgment upon persuasive proof of an agreement that
satisfied the judgment. [Citations.]” (Colby v. Colby (1954)
127 Cal.App.2d 602, 605.) The court’s decision is reviewed both
for sufficient evidence and as an exercise of its equitable
discretion. (Id. at pp. 605-606.)
B. Husband Did Not Establish Wife Agreed Not to
Enforce the 2016 Judgment
On appeal, husband argues that wife agreed to not enforce
the 2016 judgment. In an attempt to argue around the court’s
ruling that his motion to quash was merely a collateral attack on
the judgment, he now claims that he is relying solely on an
agreement postdating the 2016 judgment itself. But husband’s
declaration does not support a postjudgment agreement.
It is important to remember that the estate’s writ of
execution which husband sought to quash related only to the
monetary portion of the 2016 judgment. Husband’s declaration
made only a single mention of any agreement not to execute on
the money judgment. He stated, “We had agreed with respect to
the judgment for money that she would not attempt to enforce it
against me, and she took no steps to enforce the judgment for
$1.37 million while she was alive for a period of almost two
years.” (Italics added.) This language refers only to a prior
agreement, and does not support the existence of a postjudgment
agreement not to execute the money judgment.
C. Husband Did Not Establish His Equitable Arguments
Husband relies on three equitable doctrines to support his
motion to quash the writ of execution – laches (by wife’s non-
enforcement and her estate’s attempt to do so after she died),

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equitable estoppel (by wife’s oral promise of non-enforcement),
and unclean hands (by balancing his wrongdoing against the
estate’s).
We focus our discussion on laches. “The elements of laches
are (1) the failure to assert a right, (2) for some appreciable
period so as to amount to unreasonable delay, (3) which results in
prejudice to the adverse party. [Citations.] Laches is an
equitable defense, the existence of which is a matter commended
to the discretion of the trial court, ‘and in the absence of manifest
injustice or lack of substantial support in the evidence, the trial
court’s determination will be sustained. [Citation.]’ [Citations].”
(In re Marriage of Powers (1990) 218 Cal.App.3d 626, 642-643.)
The trial court did not expressly rule on laches, so we make the
necessary presumption in favor of the judgment and assume the
court impliedly rejected laches. (Id. at p. 643, fn. 17.)
Husband argues that the combination of wife not
attempting to execute the judgment during her lifetime, followed
by the estate attempting to execute after wife is no longer
available as a witness, establishes laches. He argues he was
prejudiced by the delay, because he has now lost wife as a
potential witness to the non-enforcement agreement he alleges
she made.
Yet it is wife who is prejudiced by husband’s failure to
pursue an acknowledgement of satisfaction during wife’s lifetime.
If husband believed the money judgment was truly satisfied by
agreement, he had nearly two years in which he could have asked
wife to file a satisfaction of judgment and, if she declined, bring a
motion under Code of Civil Procedure section 724.050 in order to
compel her to do so. Had husband brought such a motion, the
court would have heard both husband and wife on the issue of
whether the judgment was satisfied. Instead, husband failed to

24
timely make the assertion, allowed the $1.37 million judgment to
remain unsatisfied in the court’s records, and only asserted
satisfaction after wife had died and was no longer able to testify
against him. Husband failed to establish laches on the part of
the estate; if anything, he established that his own claim was
barred by laches.13
Our conclusion is the same with respect to equitable
estoppel and unclean hands. The equities in this case cannot
favor husband.
D. Husband Has Not Established the Court Erred in
Denying Him Live Testimony
Defendant claims the trial court erred by denying his
request for an evidentiary hearing on the motion to quash at
which he and perhaps others would testify. “Evidence received at
a law and motion hearing must be by declaration or request for
judicial notice without testimony or cross-examination, unless the
court orders otherwise for good cause shown.” (Cal. Rules of
Court, rule 3.1306(a).) A party can request to present oral
evidence at a hearing. (Cal. Rules of Court, rule 3.1306(b).) Such
a request is directed to the discretion of the trial court. (Ashburn
v. AIG Financial Advisors, Inc. (2015) 234 Cal.App.4th 79, 96.)
Husband argues the court abused its discretion by denying his
request. Husband has failed to establish the necessary predicate
for this argument: that his request was denied. There is no
reporter’s transcript, and the court’s minute order simply shows
husband was present, not that his testimony was offered and/or

13 This is particularly true in this case because husband relies
not on a written agreement, or even an express oral one, but on
his claim that he and wife “renewed their agreements in an
informal and ongoing series . . . .”

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rejected. As appellant, husband has the burden to provide a
record affirmatively demonstrating error. Failure to provide an
adequate record requires that the issue be resolved against him.
(In re Marriage of Oliverez (2019) 33 Cal.App.5th 298, 312.)
DISPOSITION
The judgment of dismissal of husband’s quiet title action is
affirmed. The order denying husband’s motion to quash the writ
of execution in wife’s quiet title action is affirmed. Husband is to
pay the estate’s costs on appeal.

RUBIN, P. J.
WE CONCUR:

MOOR J.

KIM, J.

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