Opinion
B231088
12-14-2011
FRED M. de la CERRA et al., Plaintiffs and Appellants, v. MARIA MOLINA et al., Defendants and Respondents.
Eliel Chemerinski for Defendant and Respondent Maria Molina. Cunningham & Treadwell, James H. Treadwell and Steven F. Kuehl for Defendants and Respondents Coastline Commercial Capital, Inc., First American Title Insurance Company, North American Title Company and Karla Severance. The Ryan Law Firm and Kelly F. Ryan for Defendants and Respondents Adam Kawasawa and Merchants Bonding Company.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC381249)
APPEAL from a judgment of the Superior Court of Los Angeles County, Teresa Sanchez-Gordon, Judge. Affirmed in part, reversed in part and remanded with directions.
The Clark Law Firm, David R. Clark; Law Offices of Manuel de la Cerra and Manuel de la Cerra for Plaintiffs and Appellants Fred M. de la Cerra, Elia de la Cerra, The de la Cerra 1997 Family Trust Dated January 17, 1997 and the Elia de la Cerra Living Trust Dated May 10, 2005.
Eliel Chemerinski for Defendant and Respondent Maria Molina.
Cunningham & Treadwell, James H. Treadwell and Steven F. Kuehl for Defendants and Respondents Coastline Commercial Capital, Inc., First American Title Insurance Company, North American Title Company and Karla Severance.
The Ryan Law Firm and Kelly F. Ryan for Defendants and Respondents Adam Kawasawa and Merchants Bonding Company.
Fred M. de la Cerra, his wife, Elia de la Cerra, and two related entities, the de la Cerra 1997 Family Trust dated January 17, 1997 and the Elia de la Cerra Living Trust dated May 10, 2005 (collectively the de la Cerra parties) filed an action to quiet title to real property located at 5125 York Boulevard in Los Angeles and to obtain damages for fraud, negligence and breach of contract. In a bifurcated proceeding in which the equitable claims were tried first, the court ruled Maria Molina owned the subject property "free and clear" of all claims of the de la Cerra parties.
On appeal the de la Cerra parties primarily contend the trial court erred in excluding evidence of a tape-recorded conversation between Fred de la Cerra and Molina in which Molina admitted she had defrauded the de la Cerra parties of their rightful ownership of the York Boulevard property. They also contend they were deprived of a jury trial on the question whether Molina's loan payments had extinguished their preexisting lien on the property. Because the extent of Molina's performance under her contract with the de la Cerras was a legal claim for the jury to decide, not an equitable one for the court, we reverse that portion of the judgment finding Molina had fully satisfied her loan obligations to the de la Cerra parties and thereby extinguished their lien. We affirm the remaining portion of the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Complaint
In November 2007 the de la Cerra parties sued Molina and her former husband, Carlos Molina (collectively the Molinas), as well as Coastline Commercial Capital Inc. (Coastline), First American Title Insurance Company, North American Title Company, Adam Kawasawa and Karla Severance (collectively the Coastline parties), among others, to quiet title to the York Boulevard property and obtain declaratory relief of their rights and duties in connection with the property. The de la Cerras asserted they were the owners of the York Boulevard property, which the Molinas conveyed to them by quitclaim deed in December 1998. Alternatively, they asserted they had an interest in the property by virtue of at least two deeds of trust securing loans they had made to Molina and the prior owners of the York Boulevard property. The operative third amended complaint also sought damages for fraud (against the Molinas), forgery (against the Molinas and the Coastline parties), breach of contract (against the Molinas) and negligence (against the Coastline parties). The Coastline parties, with the exception of Kawasawa, filed a cross-complaint asserting equitable quiet title and declaratory relief claims (against the de la Cerra parties), as well as fraud claims (against the Molinas).
Molina is also known as and sometimes referred to in the trial record as Maria Esperanza Galdamez. Carlos Molina did not appear in the proceedings, and his default was entered by the trial court.
2. The Bench Trial on the Equitable Claims
The de la Cerra parties requested a jury trial. The Coastline parties then moved to bifurcate the trial, with the de la Cerra parties' equitable quiet title and declaratory relief claims tried first to the court. The Coastline parties argued a determination of the equitable quiet title and declaratory relief issues—whether the de la Cerra parties had any interest in the property, either by virtue of a 1998 quitclaim deed delivered to them by Molina or, alternatively, by virtue of a 1996 loan to Molina's predecessor secured by a deed of trust on the York Boulevard property—should be tried first because an adverse finding against the de la Cerra parties could moot the remaining legal issues.
The court granted the bifurcation motion over the de la Cerra parties' objection. Three witnesses, Fred de la Cerra, Molina and Olga Guttierez testified at the court trial. Their testimony was primarily directed to seven sets of documents, the validity and effect of which were the central issues in the case: A 1996 deed of trust on the York Boulevard property in favor of the de la Cerras from a husband and wife who had purchased the property with a seller take-back loan; a 1997 quitclaim deed from those purchasers to Maria and Carlos Molina; a 1997 loan modification agreement between the Molinas and the de la Cerras; a 1998 quitclaim deed from the Molinas to the de la Cerras; a 2001 purchase and lease agreement between the de la Cerras and Maria Molina; a 2003 note and deed of trust from Molina in favor of the de la Cerras; and a 2007 full reconveyance of the 1996 and 2003 deeds of trust from the de la Cerras to Molina.
a. Fred de la Cerra's testimony
Fred de la Cerra testified in early August 1996 he and his wife acquired full ownership of the York Boulevard property, which included a restaurant and bar known as the Hermosillo Club. On August 13, 1996 the de la Cerras conveyed their interest in the property to Guillermo Cervantes and his wife, Gloria Yamileth Carias, for $320,000 with a $36,500 down payment. To effect the sale, the de la Cerras agreed to loan Cervantes and Carias $283,500, secured by a deed of trust on the York Boulevard property. The de la Cerras promptly recorded the 1996 deed of trust.
The ownership history of the York Boulevard property prior to August 1996 was undisputed: In 1986 Fred and Elia de la Cerra and Jesus T. Garcia and his wife, Ana Garcia, jointly purchased the property. Between 1987 and 1990 the de la Cerras loaned the Garcias money on three occasions. Each loan was secured by a separate and recorded deed of trust on the Garcias' interest in the York Boulevard property. On August 9, 1996 the Garcias deeded the entirety of their interest in the property to the de la Cerras in lieu of payment of the three loans.
On May 21, 1997 Cervantes and Carias conveyed the York Boulevard property by quitclaim deed to Molina and her then husband, Carlos Molina. De la Cerra testified he had no knowledge of the terms of the sale and had nothing to do with the negotiations for the property transfer other than to insist to Cervantes that the sale be structured so that Molina would assume their loan repayment obligation. The Molinas promptly recorded the quitclaim deed.
On June 6, 1997 Molina and de la Cerra entered into what de la Cerra characterized as a "loan modification" agreement. The agreement, drafted by de la Cerra in Spanish (Molina's native and primary language) and signed by both Molina and de la Cerra, referenced the de la Cerra recorded 1996 deed of trust. It provided that Molina would pay the de la Cerras $283,500—the full amount of their recorded lien—by making monthly interest-only payments of $2,362.50, an annual interest rate of 10 percent, and the full principal balance would become due on July 8, 2006, one year later than the maturity date of the promissory note signed by Cervantes and Carias and secured by the 1996 deed of trust. Molina began making payments in accordance with the June 6, 1997 agreement.
In December 1998 the club's liquor license, which continued to be under Cervantes's name even after the Molinas had purchased the property, was revoked by the Alcohol and Beverage Control Department. Unable to obtain a new liquor license, the Molinas conveyed the York Boulevard property to de la Cerra via a quitclaim deed and vacated the property, although Maria Molina continued to pay de la Cerra for some loan arrearages. The 1998 quitclaim deed was signed by both Maria Molina and Carlos Molina and notarized by Olga Guttierez, then a licensed notary public. De la Cerra was present when the Molinas signed the 1998 quitclaim deed and delivered it to him. He testified that, due to a health emergency and the Christmas holiday, he had inadvertently failed to record this conveyance with the Los Angeles County Recorder's Office.
De la Cerra testified the York Boulevard property remained vacant for about two years. During this time, he changed the locks, painted and made some repairs to the property in preparation for sale. He also paid the property tax even though the Molinas were identified in the tax bill as the registered owners of the property. De la Cerra acknowledged he made no effort to notify the appropriate tax agencies that the Molinas were no longer the property owners.
In April 2001, after the de la Cerras had obtained a license to sell liquor at the Hermosillo Club and advertised the business and the property for sale, Molina asked to meet with them. As a result of this meeting, Molina entered into a written agreement in April 2001 to purchase the business from the de la Cerras, including the liquor license, for $5,000 and to lease the York Boulevard real property from them for $2,500 per month.
In 2003 de la Cerra attempted to use the York Boulevard property as collateral in an unrelated transaction and discovered for the first time the 1998 quitclaim deed had not been recorded. Unable to locate the 1998 quitclaim deed to record it, he asked Molina to sign a new quitclaim deed, which she agreed to do. However, Carlos Molina, who lived in New Jersey, was estranged from his wife by this time and could not be located to sign the deed. To protect his interest in the property, de la Cerra asked Molina to sign a promissory note obligating her to pay him $250,000 secured by a deed of trust on the York Boulevard property. Molina complied with his request and executed the 2003 note and the accompanying deed of trust, which de la Cerra duly recorded. The loan itself, de la Cerra acknowledged, was never funded.
De la Cerra testified he found the 1998 quitclaim deed after reviewing his files in connection with this litigation.
Molina paid de la Cerra rent from 2001 through 2007 and operated the Hermosillo Club. In 2007 the de la Cerras discovered Molina had forged their signatures on several documents entitled "Substitution of Trustee and Deed of Full Reconveyance." The documents purported to reconvey to Molina, among other things, the 1996 and 2003 deeds of trust held by the de la Cerra parties as if Molina's debt obligations had been fully repaid. The documents were purportedly signed by the de la Cerras and notarized by Adam Kawasawa, a licensed notary public. According to the allegations in the de la Cerra parties' complaint, Molina had forged their signatures to clear title to the York Boulevard property and thereby obtain a $450,000 loan from Coastline. Coastline approved and funded the $450,000 loan to Molina, which was secured by a deed of trust on the property.
By this time, the de la Cerras had created their trust entities and transferred their property interests to the trusts.
b. Molina's testimony
Molina, who testified in Spanish with the assistance of a certified Spanish language interpreter, described herself as an unsophisticated person with a fourth grade education although she acknowledged she currently owned or operated three businesses other than the Hermosillo Club. Prior to purchasing the club, she had never worked at, much less owned, a bar. Nonetheless, after noticing the club and the underlying real estate were for sale, she inquired about purchasing the York Boulevard property. She met with Cervantes and de la Cerra. At that meeting Cervantes deferred all sale arrangements to Fred de la Cerra, who told Molina she could purchase the property from him for $300,000, with a $40,000 cash down payment. After Molina agreed to these initial terms, Cervantes and his wife executed a quitclaim deed conveying the York Boulevard property to the Molinas. Molina paid the $40,000 cash down payment directly to de la Cerra.
Molina testified de la Cerra raised his down payment demand to $80,000 after the property had already been conveyed to her.
Molina explained she had operated the Hermosillo Club under the liquor license issued to Cervantes. When that license was revoked in December 1998 and she was unable to obtain a new one, she closed the club but continued to make the monthly interest payments due on the York Boulevard property. De la Cerra repeatedly assured her he would obtain a liquor license in her name. While waiting for him to do so, Molina leased and operated another bar. When de la Cerra obtained a liquor license for the Hermosillo Club in 2001, she returned to operate it. Molina insisted that, from 1997 through 2007, she made the required loan payments and paid the real property taxes and liability insurance directly to de la Cerra as he had requested.
In 2002 Molina and the Hermosillo Club were sued in a wrongful death action. Molina alerted de la Cerra, who told her she was the property's legal title owner and was responsible for the lawsuit. Molina asked about the insurance she had paid him to obtain. De la Cerra told Molina the liability claim had been denied by the insurer and reiterated that, as the property owner of record, she was responsible for any judgment in the wrongful death action. Molina ultimately settled the action for $350,000 and began making payments on the stipulated judgment.
During cross-examination Molina admitted executing the 1998 quitclaim deed and said she had forged Carlos Molina's signature on it at de la Cerra's behest. According to Molina, de la Cerra had wanted Carlos Molina off the deed and had told her to forge her husband's signature. He had also brought three men with him when he asked her to sign the deed. Molina felt intimidated into doing what de la Cerra had asked. Molina insisted Olga Guttierez, whose notary stamp appears on the 1998 quit claim deed to authenticate the Molinas' signatures, was not present when she signed the deed and forged Carlos Molina's signature.
Molina's testimony concerning the 1998 quitclaim deed differed from her counsel's description of these events in his opening statement: Molina's counsel said Molina had willingly conveyed the property to the de la Cerra parties in 1998, but, after Molina had become liable for the wrongful death judgment in 2001 in the amount of $350,000, she and de la Cerra agreed she would pay the judgment and become the legal and equitable owner of the property.
Molina also acknowledged signing the January 2001 rental agreement, which was written in English, but asserted she understood only that it related to the transfer of the liquor license to her. She also conceded she had signed the 2003 promissory note for $250,000 and the 2003 deed of trust in favor of the de la Cerras, also written by de la Cerra in English, but said she did so because de la Cerra had demanded she sign it. Molina testified she was afraid of de la Cerra. He would throw things, yell at her, humiliate her with hurtful racial and gender-based epithets and, on one occasion, hit her. He also followed her when she would go to her other businesses. On at least two occasions she had engaged in oral sex with him because he wanted to and she was afraid to refuse him. De la Cerra vehemently denied this accusation.
In 2007 Molina applied for and obtained a $450,000 loan from Coastline secured by the York Boulevard property. Molina acknowledged she did not put any funds from the Coastline loan into her bank account because it had been levied upon by the Internal Revenue Service for failure to pay back taxes. At Molina's and the Coastline parties' request, the trial court excluded evidence relating to Molina's allegedly fraudulent reconveyances of deeds of trust in 2007 to obtain the Coastline loan on the ground those conveyances were not relevant to the de la Cerra parties' quiet title claim.
c. Olga Guttierez's Testimony
Olga Guttierez testified that, while working as a licensed notary, she witnessed Maria Molina and Carlos Molina sign the 1998 quitclaim deed and notarized their signatures. Guttierez, however, who has since retired as a notary, acknowledged she never filed the notary book with the California Secretary of State and has not been able to locate the notary book in her files.
d. The court's ruling excluding the tape-recorded conversation between de la Cerra and Molina
When de la Cerra confronted Molina about the Coastline loan and the $450,000
encumbrance on the York Boulevard property during a telephone conversation, she told him "not to worry" about it and agreed to meet him in person at a coffeehouse to explain it to him. Speaking in Spanish during this meeting, Molina told de la Cerra she felt "very sad for having defrauded" him; she acknowledged the property was his and she was "renting it" from him. De la Cerra tape-recorded their conversation without Molina's knowledge.
At trial Molina and the Coastline parties sought to exclude any testimony relating to the tape-recorded conversation on the ground the recording was illegal and inadmissible under Penal Code section 632 (section 632). The de la Cerra parties argued this issue had been resolved in their favor by a different judge during the discovery phase of the case. In particular, in connection with the de la Cerra parties' motion to compel testimony from Molina, the court had found the recording did not violate section 632 because it had been made in a public gathering and, in any event, could be admitted for impeachment. The court also explained both parties could testify about the conversation itself without implicating section 632. Noting it was not bound by an earlier ruling on the motion to compel in deciding whether the evidence was admissible at trial, the court sustained Molina's and the Coastline parties' objections, ruling the recording and any testimony about the conversation were inadmissible for all purposes.
Section 632, subdivision (a), makes it a misdemeanor to eavesdrop upon or record, by means of any electronic amplifying or recording device, any confidential communication without the consent of all parties to the conversation. Subdivision (c) of that section defines "confidential communication" as "any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded." Subdivision (d) prohibits the admission in any proceeding of evidence obtained "in violation of this section."
The Coastline parties insisted at oral argument that the trial court had not prohibited de la Cerra from testifying as to the substance of his conversation with Molina, citing the court's statement of decision, which adopts in full the closing trial brief prepared by the Coastline parties. The record, however, demonstrates otherwise. During the direct examination of de la Cerra, Molina and the Coastline parties moved, over the de la Cerra parties' vigorous objection, to exclude evidence of both the recording and any testimony concerning the substance of the recorded conversation. Initially the court's tentative ruling on the motion was to allow de la Cerra to testify about his meeting with Molina, including the comments he recalled her making, whether or not the recording itself was admissible under section 632. However, after extensive argument and some vacillation, the court granted Molina's and the Coastline parties' motion in its entirety.
3. The Trial Court's Ruling and Statement of Decision
After taking the matter under submission, the trial court ruled the de la Cerra parties "have no right, title, estate, lien, or interest whatsoever in or to" the York Boulevard property. In its statement of decision the court explained it had found de la Cerra's "unclean hands overwhelming" and his testimony not credible. The court expressly found de la Cerra had coerced or fraudulently induced Molina into signing both her name and Carlos Molina's name on the 1998 quitclaim deed, the contents of which she did not understand, and then purposefully did not record the deed because he wanted to shield himself from any liability that could arise as a result of his ownership. That intent was evidenced even more clearly when he insisted to Molina she was the property owner and thus fully responsible for any damages awarded in the wrongful death lawsuit. The court explained, "It is manifest that plaintiffs have not done equity. Plaintiffs cannot now seek equity, therefore, because of their unclean hands."
The court also concluded, although de la Cerra had had a valid lien on the property by virtue of the 1996 deed of trust, that lien had been extinguished by Molina's payments to him from 1997 through 2007, which totaled $398,746.00, more than the amount secured by the 1996 deed of trust. Although de la Cerra disputed the total paid to him and had offered evidence from his payments ledger purportedly detailing each payment from Molina, the court rejected his position, noting he had not credited Molina at all with several payments she had, in fact, made and had on several other occasions credited her with significantly lower payments than she had made. Finding de la Cerra had no interest in the York Boulevard property, the court entered judgment in favor of Molina and the Coastline parties, concluding "[t]he determination of the equitable issues by the [c]ourt in favor of defendants warrants the end of this case in its entirety."
4. The New Trial Motion
The de la Cerra parties moved for a new trial contending, among other things, the court had erred in excluding evidence relating to the tape-recorded conversation. The court denied the new trial motion. The court explained the de la Cerra parties had not demonstrated the admissibility of the tape recording at trial despite having ample opportunity to do so. In any event, the court ruled, "even if the recording . . . had been admitted at trial, the result would have been the same. Plaintiffs had the burden of proof in this action. Plaintiffs' witness Fred M. de la Cerra did not provide any credible evidence in support of the case. Regardless of whether Molina's evidence was impeached, plaintiffs failed to establish their case. The motion is thus denied."
CONTENTIONS
The de la Cerra parties contend the trial court erred in excluding (a) the tape- recording, (b) any evidence pertaining to the recorded conversation, and (c) evidence pertaining to Molina's alleged fraud in 2007 to obtain the Coastline loan. They also contend the court denied them their right to a jury trial when it adjudicated the amount of money due and payable under the 1997 loan modification agreement.
The de la Cerra parties' motion for sanctions against Molina's counsel, based on his failure to notify the court and opposing counsel of a bankruptcy stay that was temporarily in effect and that necessitated continuation of oral argument in this matter from our November 2011 calendar to the December 2011 calendar, is denied. (See Cal. Rules of Court, rule 8.276(a).)
DISCUSSION
1. The Trial Court Erred in Excluding the Tape- Recording and Other Evidence of the Recorded Conversation, but the Error Was Harmless
a. Governing law
Section 632 makes it a misdemeanor to eavesdrop upon or record, by electronic means, a "confidential communication" without the consent of all parties to the conversation. (§ 632, subd. (a).) A communication is confidential within the meaning of section 632 if "a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded." (Flanagan v. Flanagan (2002) 27 Cal.4th 766, 776-777; accord, Kearney v. Salomon Smith Barney (2006) 39 Cal.4th 95, 116, fn. 7.) Communications that take place "in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard and recorded" are not confidential and thus are not covered by the statute. (§ 632, subd. (c); see Evens v. Superior Court (1999) 77 Cal.App.4th 320, 323.)
Generally, evidence obtained in violation of section 632 is not admissible in any judicial, administrative, legislative or other proceeding. (§ 632, subd. (d) ["[e]xcept as proof in an action or prosecution for violation of this section, no evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section shall be admissible in any judicial, administrative, legislative, or other proceeding"].) However, such evidence may be used at trial for the limited purpose of refreshing a witness's independent recollection of the conversation in which he or she had participated (Frio v. Superior Court (1988) 203 Cal.App.3d 1480, 1494) or impeaching the inconsistent testimony of a party who advocates the exclusion of the evidence (id. at p. 1497 ["[t]he evidentiary sanction of section 632, subdivision (d), cannot be construed so as to confer upon a testifying witness the right to commit perjury"]).
b. Standard of review
Ordinarily, the trial court's ruling excluding evidence is reviewed for abuse of discretion. (People v. Brady (2010) 50 Cal.4th 547, 558; Mora v. Big Lots Stores, Inc. (2011) 194 Cal.App.4th 496, 513.) When, however, the exclusion of evidence is not based on the court's exercise of its discretion but its interpretation of a statute, the question is a legal one subject to de novo review. (People v. Nazary (2010) 191 Cal.App.4th 727, 746-747 ["where, as here, the record does not reflect the trial court exercised its discretion in making its ruling regarding section 632, but rather reveals it determined as a matter of law that the facts of the case did not constitute a violation of that section," appellate court properly conducts a de novo review]; Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007) 153 Cal.App.4th 583, 603.)
c. The trial court's ruling was flawed in several respects
In excluding the tape-recording on the ground it was obtained in violation of section 632, the trial court failed to conduct an Evidence Code section 402 hearing to determine the circumstances under which the conversation took place and, in particular, whether the communication was "confidential" within the meaning of the statute. Instead, notwithstanding an offer of proof that the communication had occurred at a coffeehouse in the presence of other patrons, the court concluded the conversation was inadmissible under section 632, subdivision (d), simply because Molina had not known about or consented to the recording. This was error.
Although Molina had filed a declaration in opposition to the de la Cerra parties' earlier motion to compel in which she had testified she and de la Cerra conversed in Spanish and she deliberately spoke in hushed tones so as not to be overheard by other patrons, there is no indication in the record the trial court considered the declaration, much less relied on it in reaching its conclusion.
Lack of knowledge and consent are necessary but not sufficient elements of a section 632 violation. A conversation is "confidential" and thus within the protection of section 632 only if it takes place "under circumstances showing that a party desires it not be overheard or recorded" and not "under circumstances where the party reasonably believes it will be overheard or recorded." (Flanagan v. Flanagan, supra, 27 Cal.4th at p. 774.) Because the offer of proof was truncated and no section 402 hearing occurred, we do not know how crowded the coffeehouse was, how close the nearest patrons were to Molina and de la Cerra, how loudly the parties were speaking or the level of background noise. The record was thus inadequate for the court to rule on the evidentiary objections and, necessarily, for us to evaluate whether the tape recording itself was properly excluded as part of the de la Cerra parties' case-in-chief.
Whether or not the tape recording actually violated section 632, however, the trial court's evidentiary rulings swept too broadly. Pursuant to Molina's and the Coastline parties' request, the court also prohibited de la Cerra from testifying about the conversation, reasoning his recollection undoubtedly would have been influenced by the prohibited recording. This too was error.
Both de la Cerra and Molina could have testified about the conversation as they recalled it notwithstanding section 632. (Frio v. Superior Court, supra, 203, Cal.App.3d at pp. 1492-1493; see also Evid. Code, § 1220 [statement of party declarant, when offered against declarant, is not made inadmissible by hearsay rule].) Moreover, even if the recording was inadmissible, a transcript of the conversation could have been used to refresh the parties' recollection. (See Frio, at p. 1494 [notes from recording made in violation of § 632 could be used to refresh testifying witness's independent recollection, even though the notes and recording themselves are inadmissible].) Finally, the recording was certainly admissible to impeach Molina's testimony about the issue of ownership of the York Boulevard property. (See Frio, at p. 1497; People v. Crow (1994) 28 Cal.App.4th 440, 452.)
d. The exclusion of the conversation was harmless error
In the tape recording Molina tells de la Cerra, "It [the York Boulevard property] remains your property and will always be your property." "The property is yours. I have never taken anything from you." The de la Cerra parties contend the recording was the "smoking gun" in this case and its exclusion prejudicial.
In denying the new trial motion, however, the court, which served as the finder of fact, stated it would not have reached a different result even had the recording been considered. The court explained, "Plaintiffs' witness Fred M. de la Cerra did not provide any credible testimony in support of the case. Regardless of whether Molina's evidence was impeached, plaintiffs failed to establish their case."
The de la Cerra parties challenge this reasoning, asserting the burden of proof shifted to Molina once they provided the quitclaim deed signed by Molina. (See Civ. Code, § 1054 ["[a] grant takes effect, so as to vest the interest intended to be transferred, only upon its delivery by the grantor"]; 20th Century Plumbing Co. v. Sfregola (1981) 126 Cal.App.3d 851, 853 [possession of a deed by the grantee named therein is prima facie evidence of its delivery and hence gives rise to an inference the instrument was duly delivered].) Thus, the de la Cerra parties insist, they established a prima facie case for ownership. (See Ward v. Dougherty (1888) 75 Cal. 240, 242 [possession of a deed by the grantee is prima facie evidence of its delivery].) Moreover, they argue, even if Molina had forged Carlos Molina's signature on the 1998 quitclaim deed, that would make the deed voidable at Carlos Molina's request, not void. (See Fam. Code, § 1102 ["both spouses, either personally or by a duly authorized agent, must join in executing any instrument by which that community real property or any interest therein is leased for a longer period than one year, or is sold, conveyed or encumbered"]; In re Marriage of Brooks & Robinson (2008) 169 Cal.App.4th 176, 183 ["[a] conveyance in violation of this rule is generally voidable by the spouse who did not join in the conveyance"].)
The de la Cerra parties' argument misses the mark. The trial court's refusal to quiet title to the York Boulevard property in favor of the de la Cerra parties was not based on a failure of de la Cerra to prove delivery of the 1998 quitclaim deed, but on his own unclean hands in connection with his acquisition and subsequent treatment of the deed. On this point the record is clear. The court simply did not believe de la Cerra's testimony that the failure to record the deed was an oversight. The fact the forgery, accomplished with de la Cerra's knowledge and encouragement, rendered the deed voidable, not void, in no way undermines the court's unclean hands finding. (See McDougall v. O'Hara (1954) 129 Cal.App.2d 12, 14 [where plaintiff borrower intentionally misrepresented that promissory note constituted a deed of trust on his homestead, court rejected plaintiff's attempt to quiet title free and clear of any lien: "[t]he clean hands doctrine is not restricted however to cases of actionable fraud"; "'[a]ny unconscientious conduct upon his part which is connected with the controversy will repel him from the forum whose very foundation is good conscience'"].) Significantly, Molina's tape-recorded comments, to the extent they can be taken at face value in light of Molina's testimony she was afraid of de la Cerra and often told him what he wanted to hear, were directed largely to her purported fraudulent reconveyances of the 1996 and 2003 deeds of trust, not to the circumstances surrounding the execution or delivery of the 1998 quitclaim deed. The trial court, well aware of the contents of the tape recording, concluded Molina's recorded comments, even if they had been admitted, would not have altered its opinion of de la Cerra's credibility and unclean hands. On this record, it is not reasonably probable the admission of the tape-recorded conversation would have led the court to reach a different result. (Pannu v. Land Rover North America, Inc. (2011) 191 Cal.App.4th 1298, 1317 ["'trial court's error in excluding evidence is grounds for reversing a judgment only if the party appealing demonstrates a "miscarriage of justice"—that is, that a different result would have been probable if the error had not occurred'"]; see Evid. Code, § 354; Code Civ. Proc., § 475; see generally California Satellite Systems, Inc. v. Nichols (1985) 170 Cal.App.3d 56, 70 [application of unclean hands rule barring plaintiffs' recovery in equitable claim is "primarily a question of fact" for factfinder]; Pannu, at p. 1322 [in bench trial court would not have given evidence credence even if it had been admitted; "the court as factfinder was well aware of [expert's test] results and found them insufficiently probative to justify revisiting their exclusion"].)
The de la Cerra parties also contend the court's ruling excluding evidence in the equitable phase of the trial relating to Molina's alleged fraudulent reconveyance of deeds of trust in 2007 was error because evidence of Molina's fraud undermined her credibility. The court determined admission of that evidence, the subject of several of the de la Cerra parties' fraud claims, would cause undue delay and defeat the purpose of a limited trial on the de la Cerra parties' equitable quiet title claim. Such a determination was well within the court's discretion, particularly since the court received other evidence attacking Molina's honesty and credibility, including de la Cerra's testimony she had forged his signature on the 2007 reconveyances of the 1996 and 2003 deeds of trust. (See Evid. Code, § 352 [court has discretion to exclude evidence if its admission would necessitate undue consumption of time]; Houghtaling v. Superior Court (1993) 17 Cal.App.4th 1128, 1138 [in bench trial court retains discretion under Evid. Code, § 352 to exclude evidence that is cumulative or overly time-consuming].)
3. The Question Whether Molina Fully Performed Under the Loan Modification Agreement Should Have Been Tried to the Jury
The trial court ruled Molina was the legal and equitable title holder of the York Boulevard property subject to the de la Cerra parties' 1996 deed of trust. It also found Molina had paid de la Cerra a total of $398,746 from April 1997 through March 2008, thus satisfying her debt obligations and effectively extinguishing de la Cerra's 1996 deed of trust. (See Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1235 ["[a] security interest cannot exist without an underlying obligation, and therefore a mortgage or deed of trust is generally extinguished by either payment or sale of the property in an amount which satisfies the lien"]; Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 439 [same]; see also Civ. Code, § 1473 ["[f]ull performance of an obligation, by the party whose duty it is to perform it, or by any other person on his behalf, and with his assent, if accepted by the creditor, extinguishes it"].)
The de la Cerra parties, who had objected at trial to the bifurcation of this issue, contend the question whether Molina had fully satisfied her obligations under her loan modification agreement with de la Cerra is not an equitable issue and should have been tried to the jury. Whether a party is constitutionally entitled to a jury trial is an issue of law subject to de novo review. (Caira v. Offner (2005) 126 Cal.App.4th 12, 23.)
Generally, "'the jury trial is a matter of right in a civil action at law, but not in equity.'" (C&K Engineering Contractors v. Amber Steel Company, Inc. (1978) 23 Cal.3d 1, 9 (C&K Engineering); accord, Abbott v. City of Los Angeles (1958) 50 Cal.2d 438, 462; see Cal. Const. art I, § 16 [affording constitutional right to jury trial in civil cases].) Where a complaint states both legal and equitable causes of action, the plaintiff is entitled to a jury trial on the legal causes of action. (C&K Engineering, at p. 9; Connell v. Bowes (1942) 19 Cal.2d 870, 871.)
The de la Cerra parties had sought declaratory relief with respect to each of their recorded deeds of trust on the York Boulevard property. Although declaratory relief is traditionally an equitable claim (see Strauss v. Summerhays (1984) 157 Cal.App.3d 806, 812), the label of the cause of action is not dispositive. (State Farm Mut. Auto. Ins. Co. v. Superior Court (1956) 47 Cal.2d 428, 430.) "'[I]f the issues of fact arising would have been triable by a jury as of right in an action which might have been substituted for the declaratory judgment action by either party, then there is a right to jury trial on such issues'" regardless of the fact that the action is labeled one for declaratory relief. (Ibid.; accord, C&KEngineering, supra, 23 Cal.3d at p. 9 ["it is 'not . . . the form of the action but rather . . . the nature of the rights involved and the facts of the particular case,'" that determine whether the action is legal or equitable]; see Caira v. Offner, supra, 126 Cal.App.4th at p. 25 ["'"courts will not permit the declaratory action to be used as a device to circumvent the right to a jury trial in cases where such right would be guaranteed if the proceeding were coercive rather than declaratory in nature"'"].)
Here, Molina and the Coastline parties challenged the validity of the 1996 deed of trust not on equitable grounds, but on the ground Molina had fully performed under her loan modification agreement with de la Cerra and thus had extinguished the lien. This disputed issue, also the subject of the de la Cerra parties' 12th cause of action for breach of contract, depended entirely on the extent to which Molina had satisfied her payment obligations under the loan modification agreement, a legal cause of action for which the de la Cerra parties enjoyed a right to a jury trial. (See Code Civ. Proc., § 592 [in action for money claimed as due upon contract, issue of fact must be tried to jury]; see also Caira v.Offner, supra, 126 Cal.App.4th at p. 25 ["'[w]here an action for declaratory relief is in effect used as a substitute for an action at law for breach of contract, a party is entitled to a jury trial as a matter of right'"]; Patterson v. Insurance Co. of North America (1970) 6 Cal.App.3d 310, 315; see generally Martin v. County of Los Angeles (1996) 51 Cal.App.4th 688, 696 ["the fact that equitable principles apply to a particular cause of action does not by itself compel the conclusion that the cause of action is one in equity"]; Selby Constructors v. McCarthy (1979) 91 Cal.App.3d 517, 527 (Selby).)
The court found the first three deeds of trust the de la Cerras held on the property securing loans made to the Garcias were extinguished under the merger doctrine when the Garcias transferred their interest in the property to the de la Cerras in 1996. The court also found the 2003 deed of trust had no legal effect because it was based on a promissory note that was never funded. Those findings are not challenged on appeal.
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Selby is particularly on point. A general contractor brought an action to foreclose on a mechanic's lien based on the homeowners' breach of contract. The homeowners defended the action on the ground the contractor had failed to perform under the contract. The homeowners' request for a jury trial was denied without explanation. The Court of Appeal reversed the judgment for the contractor on the ground the homeowners had been deprived of a jury trial. The court observed that "foreclosure of a mechanics lien, like the foreclosure of a mortgage, is an action sounding in equity rather than law." (Selby, supra, 91 Cal.App.3d at p. 525.) "If the challenge to the lien is procedural, relating to the question of compliance with statutory requirements for its perfection," no jury trial is required. (Id. at p. 526.) However, when the defendant disputes the validity of the lien based on the opposing party's "contractual performance," the question is a legal one for the jury. (Id. at p. 527.) ["[i]n our view, the equitable issues which could reasonably be tried by the trial court alone were only those, if any, relating to the manner in which the lien was perfected. . . . [¶] We conclude, therefore, that defendants herein were wrongfully deprived of their right to trial by jury on the issue of liability, i.e., contractual performance."].)
Like the homeowners' claim in Selby, the de la Cerra parties' claim for declaratory relief, to the extent it depended on Molina's performance under their loan modification contract, was, at its heart, a legal claim. The de la Cerra parties were entitled to a jury trial on the question whether Molina had fully performed under her loan agreement, thus extinguishing the 1996 deed of trust. Deprivation of that jury trial right, absent any evidence of waiver, compels reversal on this claim. (Martin v. County of Los Angeles, supra, 51 Cal.App.4th at p. 698 [The "denial of the right to jury trial is reversible error per se. [Citations.] No showing of actual prejudice is required."]; Selby, supra, 91 Cal.App.3d at p. 527; cf. Villano v. Waterman Convalescent Hosp., Inc. (2010) 181 Cal.App.4th 1189, 1205 [denial of constitutional right to a jury trial in civil case is reversible per se; however, "it would be absurd to suppose that an appellant who went to trial before the court and won everything that he or she was asking for could obtain a reversal"].)
DISPOSITION
The judgment is reversed. The matter is remanded to the trial court to conduct a jury trial on the question whether and to what extent Molina fully performed under her contract with de la Cerra and to conduct any further proceedings not inconsistent with this opinion. In all other respects the judgment, including the court's finding Molina is the legal and equitable owner of the York Boulevard property subject to the de la Cerra parties' recorded 1996 deed of trust, is affirmed. Each party is to bear his, her and its own costs on appeal.
PERLUSS, P. J.
We concur:
WOODS, J.
JACKSON, J.