Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. GIC851472, Charles R. Hayes, Judge.
McINTYRE, J.
Suzanne G. Davis sued her mother, Yvette N. Davis, and Financial Freedom Senior Funding Corporation (Financial) seeking to quiet title to a portion of Yvette's real property after Yvette granted a deed of trust to the real property to Financial under a reverse mortgage. Suzanne appeals an order granting Financial's motion for summary judgment and the judgment thereon, contending the trial court erred in concluding that the grant deed she previously received from Yvette did not convey an interest in real property and, even if it did, the deed was void because it inadequately described the property.
We conclude that the evidence presented did not establish, as a matter of law, that Yvette intended to transfer personal property rather than real property to Suzanne or that the deed transferring the property was fatally vague. Accordingly, we reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The factual recitation is based on the allegations of Suzanne's first amended complaint and the attachments thereto. Yvette is the owner of a parcel of improved real property located at 4841 Onate Avenue, San Diego, California, 92117, described as "Lot 518 of CLAIREMONT MESA UNIT NO. 5, . . . according to Map thereof No. 4211, filed in the office of the County Recorder of San Diego [County], June 5, 1959" (the Property). On March 30, 1999, Yvette executed a grant deed (the 1999 deed) granting to Suzanne "the following real property" in the City of San Diego, State of California:
"45% (forty-five percent)/ 832 (eight hundred thirty-two) square feet of total 1835 living structure located at [the Property].
"It is assumed for all practical purposes that square footage shall pertain to the most eastern portion of said structure that grantee constructed and paid for in full. Construction of said portion began in 1982 and includes all fixtures and equipment now or hereafter thereto attached or thereon situated and intended or designed for use in connection therewith, along with all furnishings and personal property situated thereon.
"Any easement necessary to access property, sewer, water, gas, and electrical supply used in connection therewith, TOGETHER WITH the rents, issues and profits thereof."
As part of the 1999 deed, Yvette agreed that the property would not be sold or mortgaged; that deed, however, was never recorded. The same day, Yvette executed a declaration of trust stating that she owned the Property:
"including [all] appurtenances, . . . [w]ith the exception of [the] appurtenance described as the most eastern 832 (eight hundred thirty-two) square foot portion of the living structure, any easement necessary to access property, sewer, water, gas, and electrical supply used in connection therewith, all fixtures and equipment now or hereafter thereto attached or thereon situated and intended or designed for use in connection therewith, along with all furnishings and personal property situated thereon, TOGETHERWITH the rents, issues and profits thereof, which has been granted to my daughter, Suzanne Davis under separate instrument for a valuable consideration."
Yvette recorded the declaration of trust and a quit claim deed transferring the property to herself as trustee under the declaration of trust (the 1999 quit claim deed). In May 2004, Yvette recorded a quit claim deed transferring the Property out of the trust and back to herself. Financial then recorded a deed of trust securing a reverse mortgage loan on the Property.
In 2005, Suzanne filed this action against Yvette and Financial alleging causes of action for declaratory relief, quiet title, cancellation of cloud on title and slander of title. Financial moved for summary judgment or in the alternative, summary adjudication of all causes of action, arguing that all claims against it failed because the 1999 deed only transferred an interest in personal property, and even if the deed transferred real property, it did not sufficiently define which 832 square feet had been transferred.
In support of its motion, Financial referenced the above documents and portions of Yvette's deposition testimony stating that she: (1) executed the 1999 deed, (2) told Financial's representative that she owned the Property in fee simple, and (3) did not tell Financial's representative that Suzanne had a current interest in the Property or about the existence of the 1999 deed. Suzanne opposed the motion, arguing that Financial had constructive notice of the 1999 deed through Yvette's declaration of trust, that the 1999 deed transferred an interest in real property and sufficiently described her interest in the Property.
The trial court tentatively granted summary judgment, noting that the "undisputed evidence" (the 1999 deed, the declaration of trust, the 1999 quit claim deed and Financial's deed of trust securing the reverse mortgage loan on the Property) established that the 1999 deed only transferred an interest in an appurtenance (living space) and that even if the 1999 deed intended to transfer an interest in real property, the description of the real property did not enable it to be readily located. Specifically, the trial court noted that the 1999 deed was void because it "merely describe[d] a certain amount of square feet of the living structure without providing any description of the configuration or shape of the square footage of the living structure" and that extrinsic evidence could not cure the defect. Thereafter, the trial court entered judgment in Financial's favor and Suzanne timely appealed.
DISCUSSION
I. Standard of Review
Summary judgment is properly granted "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) We review a summary judgment ruling de novo, considering "all of the evidence set forth in the [supporting and opposition] papers, except that to which objections have been made and sustained by the court, and all [uncontradicted] inferences reasonably deducible from the evidence[.]" (Ibid.; Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65, 67-68.) The moving defendant has the initial burden to present evidence showing that the plaintiff cannot establish one or more elements of the challenged claim or claims. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-854 (Aguilar).) If the defendant meets this burden, it is entitled to succeed on the motion unless the plaintiff presents evidence constituting a prima facie showing that a triable issue of one or more material facts exists. (Id. at pp. 850, 855.)
II. Analysis
A. Interpretation of the 1999 Deed
As a threshold matter, we note that Suzanne's papers below did not include a separate statement of facts that responded to each of the material facts that Financial contended to be undisputed and that identified any other material facts she contended were disputed. (Code Civ. Proc., § 437c, subd (b)(3).) Financial sought to strike Suzanne's opposition on this ground; alternatively, it argued that the trial court should consider all facts set forth by it as being undisputed. The trial court did not rule on this request, nor did it cite to the additional evidence presented by the parties, but not included in their respective separate statements of fact; namely, portions of Yvette's deposition testimony and Suzanne's declaration.
The established rule is that if a fact is not set forth in the separate statements required under the summary judgment procedure, it does not exist for purposes of deciding the motion unless the court exercises its discretion to consider it. (San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 313, 316.) The trial court apparently exercised its discretion to not consider evidence outside the separate statements of fact. Nonetheless, we review a trial court's decision on summary judgment de novo and have the same discretion as the trial court to consider evidence not referenced in the separate statements. (Fenn v. Sherriff (2003) 109 Cal.App.4th 1466, 1481.) On appeal, both parties cited to evidence presented by them but not included in their separate statements of fact and we exercise our discretion to consider this evidence.
The trial court relied on the 1999 deed and the declaration of trust to conclude that the 1999 deed only transferred an interest in an appurtenance or living space, not real property. As explained below, we conclude that the documents cited by the trial court do not show, as a matter of law, that the 1999 deed transferred only an interest in personal property. Furthermore, the additional evidence provided by the parties does not establish Financial's contention as a matter of law.
A deed is subject to the same rules of interpretation as an ordinary contract (Civ. Code, §§ 1040, 1066) and the primary object of contract interpretation is to determine and carry out the intent of the parties. (City of Manhattan Beach v. Superior Court (1996) 13 Cal.4th 232, 238.) The language of the deed determines its interpretation so long as it is clear and explicit. (Civ. Code, § 1638.) A grant is to be interpreted in favor of the grantee (Civ. Code, § 1069; City of Manhattan Beach v. Superior Court, supra, 13 Cal.4th at pp. 242-243) and "[a] fee simple title is presumed to be intended to pass by a grant of real property, unless it appears from the grant that a lesser estate was intended." (Civ. Code, § 1105.)
Turning to the terms of the 1999 deed, we note that it "grant[ed]" to Suzanne "the following real property," to wit, 45 percent or 832 square feet of the total 1835 square foot living structure located at the Property, including all fixtures, furnishings and personal property situated thereon and any necessary easements This deed conformed to the simple form for a grant deed of real property under California law (Civ. Code, § 1092) and it is presumed that the 1999 deed transferred a fee simple title to the cited portion of the Property rather than a lesser estate, i.e., no estate at all. Notably, Financial's separate statement is devoid of any evidence rebutting this presumption. (Evid. Code, §§ 601, 602, 606.)
The 1999 deed, considered with the declaration of trust, similarly did not establish as a matter of law that Yvette transferred to Suzanne personal property and not a fee simple title to real property. Yvette's declaration of trust stated that she owned the Property "including [all] appurtenances, . . . [w]ith the exception of [the] appurtenance described as the most eastern 832" square foot portion of the living structure, any easements, all fixtures, furnishings and personal property situated thereon, "which has been granted to my daughter, Suzanne Davis under separate instrument for valuable consideration." An appurtenance is "[s]omething that belongs or is attached to something else" (Black's Law Dict. (8th ed. 2004) p. 111) and under California law, real property is defined as land, that which is affixed to land and that which is appurtenant to land. (Civ. Code, § 658.) Thus, use of the word "appurtenance" to describe the property deeded to Suzanne does not advance Financial's argument that Yvette only intended to transfer the referenced portion of the building and not any real property.
Additionally, the declaration of trust indicated that Yvette did not own the referenced "appurtenance" or the "personal property situated thereon[.]" The reference to personal property situated on the appurtenance suggests that Yvette intended to transfer not just the living space, but the real property underneath. Accordingly, the declaration of trust is insufficient to rebut the presumption that Yvette intended to transfer a fee title to Suzanne.
Even assuming the 1999 deed was ambiguous as to what type of interest it transferred, the additional portions of Yvette's deposition testimony and Suzanne's declaration provided by the parties do not show that Yvette transferred to Suzanne personal property rather than a fee simple title to a portion of real property. Yvette never read the 1999 deed and when asked whether she understood that she was conveying an interest in the property when she signed the 1999 deed, Yvette replied "no." While this testimony suggests Yvette did not understand the meaning of the 1999 deed, it does not show that she intended to transfer an item of personal property. Moreover, other portions of Yvette's deposition testimony suggest she intended to transfer a portion of the Property:
" . . . I was giving John and Suzanne, in my mind, 45 percent of the value of the property when it was sold so that they would get their investment back.
"Q. Did you and Suzanne at any time before you signed the [1999 deed] have a discussion about her getting 45 percent of the value of the property?
"A. I don't remember any discussion. There was nothing to discuss really, because I was agreeable to that.
"Q. Did you ever tell Suzanne she was going to get 45 percent of the property?
"A. I must have, yes."
The parties' actions also suggest that Yvette granted an interest in real property because Suzanne continued to reimburse Yvette for her proportionate share of the property taxes and insurance even after she moved off the Property.
While we have no quarrel with Financial's assertion that things attached to land may be characterized as either real or personal property depending on the intent of the parties, its reliance on Gosliner v. Briones (1921) 187 Cal. 557 (Gosliner) and Taylor v. Heydenreich (1949) 92 Cal.App.2d 684 (Taylor) to prove that Yvette did not intend to transfer an interest in real property is misplaced. These cases did not involve the interpretation of a written "grant" deed; rather, they involved the factual question of whether buildings erected by a licensee on real property owned by another were fixtures passing to the property owner or the personalty of the individual who erected the buildings. (Gosliner, supra, 187 Cal. at pp. 561-562; Taylor, supra, 92 Cal.App.2d at pp. 688-689.) Financial presented no evidence showing that the addition Suzanne built was easily movable or that Yvette and Suzanne considered the addition as personalty that Suzanne could remove at will. (Compare, Gosliner, supra, 187 Cal. at p. 559 [house and windmill were built on mudsills placed upon the surface of the land].)
B. The Description of the Property was Not Fatally Inadequate
The trial court alternatively concluded that if the 1999 deed transferred an interest in real property, it was void because it did not describe the shape of the living structure granted and that the defect could not be cured by extrinsic evidence. While we agree that the description in the 1999 deed was defective, as discussed below, extrinsic evidence is admissible to cure the defect and the trial court erred when it concluded that the 1999 deed was void.
Real property can be transferred only by a writing (Civ. Code, § 1091) and a deed that does not sufficiently describe the real property can be voided. (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 766.) To be effective, the description of the real property must be such that the land can be identified or located on the ground. (Best v. Wohlford (1904) 144 Cal. 733, 736.) Nonetheless, if the deed is ambiguous on its face, extrinsic evidence is admissible to interpret it. (Baker v. Ramirez (1987) 190 Cal.App.3d 1123, 1132-1133.) While extrinsic evidence may not be used for the purpose of adding to or varying the description in the deed, it is admissible to apply the description to that part of the surface of the earth that is the subject matter of the deed. (Corona Unified School Dist. of Riverside County v. Vejar (1958) 165 Cal.App.2d 561, 565 (Corona).) However, the "key or means" which may be utilized to make certain an otherwise deficient description must be contained in the description and cannot be supplied from a source extrinsic to such description. (Brooks v. Allard (1966) 244 Cal.App.2d 283, 287, citing Corona, supra, 165 Cal.App.2d at pp. 564-567.)
The parties agree that the 1999 deed was ambiguous with respect to the location of the 832 square feet of living space granted to Suzanne. Financial asserts that there are many different ways to carve out 832 square feet of living space out of a total of 1835 square feet because the area could take many different shapes and that extrinsic evidence cannot be used to supply a description of the property omitted from the deed. Financial's argument ignores the remainder of the 1999 deed, which specifies that the square footage consists of the "most eastern portion of said structure that [Suzanne] constructed and paid for in full. Construction of said portion began in 1982[.]" This portion of the 1999 deed provides the "key or means" to make certain the otherwise deficient description with the assistance of extrinsic evidence. (Brooks v. Allard, supra, 244 Cal.App.2d at p. 287.) Notably, the 1999 deed identified the location of the Property and any surveyor, with the assistance of extrinsic evidence, can compare the footprint of the living structure when it was initially built with the current footprint of the structure and precisely locate the square footage on the eastern side of the living structure that Suzanne constructed.
C. Conclusion
In summary, uncontroverted evidence did not show that Yvette transferred to Suzanne personal property rather than a fee simple title to a portion of real property and extrinsic evidence was admissible to cure the defective description in the 1999 deed. Accordingly, the trial court erred in granting summary judgment in favor of Financial.
DISPOSITION
The judgment is reversed. Suzanne is to recover her costs on appeal.
I CONCUR: HUFFMAN, Acting P. J.
McDONALD, J., Dissenting.
Because the description of the property in the unrecorded grant deed from Yvette Davis to her daughter Suzanne Davis was inadequate to legally describe real property, it did not convey title to real property. I would therefore affirm the judgment.
The 1999 deed from Yvette to Suzanne described the property to be conveyed as:
"45% (forty-five percent)/832 (eight hundred thirty-two) square feet of total 1835 living structure located at 4841 Onate Avenue, San Diego, California, 92117, Lot 518 of CLAIREMONT MESA UNIT NO. 5, according to Map thereof No. 4211, filed in the Office of the County Recorder of San Diego County, June 5, 1959.
"It is assumed for all practical purposes that square footage shall pertain to the most eastern portion of said structure that grantee constructed and paid for in full. Construction of said portion began in 1982 . . . ."
In general, a property description in a deed is sufficient if a land surveyor is able to use the description to locate the boundaries of the property. (Ganiats Construction, Inc. v. Hesse (1960) 180 Cal.App.2d 377, 384.) Apart from other ambiguities, a land surveyor could not use the description in the deed in question here to locate the boundaries of the property because the surveyor could not know or determine from the description what property the grantee "constructed and paid for in full."
Although in some circumstances parol evidence may be admitted to identify property otherwise inadequately described in the written deed, parol evidence may not be used "for the purpose of ascertaining and locating the land about which the parties negotiated and supplying a description . . . which [the parties] have omitted from the writing." (Craig v. Zelian (1902) 137 Cal. 105, 106.) In my view parol evidence of that portion of the structure referred to in the deed here in question constructed and paid for by Suzanne is within the category of impermissible use of parol evidence to complete a property description in a deed.
Furthermore, I am reluctant to interpret a deed purporting to convey real property that, if valid, would appear to violate the Subdivision Map Act, a criminal offense. (Gov. Code, §§ 66426, 66428, 66499.31.)
I would affirm the judgment of the trial court.