ANGELO GARCIA v. PETRA GARCIA SANCHEZ

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Court of Appeal, Fifth District, California.

ANGELO GARCIA, Plaintiff and Appellant, v. PETRA GARCIA SANCHEZ et al., Defendants and Respondents.

F058914

Decided: February 22, 2011

Yarra, Kharazi & Associates and H. Ty Kharazi for Plaintiff and Appellant. The Reich Law Firm and Shane Reich for Defendants and Respondents.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

Plaintiff appeals from a judgment entered against him after a court trial of the equitable issues raised by his complaint.   The complaint sought the return of his one-half interest in certain real property he and his sister had owned jointly and damages for its loss.   The court found in favor of defendants on the equitable issues, determined the resolution of the equitable issues made trial of the legal issues unnecessary, and entered judgment in favor of defendants.   Plaintiff appeals, contending he was denied his right to a jury trial on the legal issues and there was insufficient evidence of adequate consideration to support the existence of a contract for the conveyance of plaintiff's interest in the property.   We find no error and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff filed a first amended complaint against his sister, Petra Garcia, and her husband, Brent Sanchez, alleging six causes of action, entitled (1) declaratory fraudulent transfer, (2) fraud, (3) breach of fiduciary duty, (4) resulting trust, (5) partition by sale, and (6) accounting.   He alleged he and Petra jointly owned a certain piece of real property used for farming.   In December 2004, Petra asked plaintiff to help her refinance the property;  she represented that, if plaintiff quit claimed his interest in the property to her, she would return it to him after she refinanced the loan and they would continue to divide the farm income equally.   She told plaintiff his poor credit score prevented them from jointly qualifying for a loan.   The representations were false and known by Petra to be false.   In reliance on these representations, plaintiff signed a deed to Petra.   Subsequently, Petra refused to reconvey the property to plaintiff.   The breach of fiduciary duty cause of action alleged plaintiff is illiterate and relied on defendants to pay his bills and take care of his finances;  they gained an advantage over him by using his trust to induce him to sign over title to the property.   The accounting cause of action alleged defendants failed to pay plaintiff his share of the farm income and he requested an accounting of all the income generated by the farm after the date of transfer of title.

Petra cross-complained against plaintiff, asserting causes of action to quiet title to the property, for an accounting of the income from the property since the date title was transferred to her, and for partition in the event the court found plaintiff holds an interest in the property.

At the commencement of the trial, plaintiff expressed his desire for a jury trial;  the court noted there was an issue regarding whether the trial should be bifurcated between legal and equitable issues.   Plaintiff requested trial of the jury issues first;  defendants requested that the equitable issues be tried first, which might have the effect of disposing of some or all of the legal issues.   After further discussion and plaintiff's acknowledgement that regaining title was his primary concern, the court determined it would conduct a court trial of the equitable issues and reserve for jury trial the legal causes of action, fraud and breach of fiduciary duty.

After the court trial, the court found in favor of defendants on the equitable issues raised by plaintiff's complaint;  it also found in favor of Petra on the quiet title cause of action of her cross-complaint, although it reserved a life estate in the property in favor of plaintiff.   It found that plaintiff did not sign the property over to Petra as a result of any fraud, misrepresentation, or breach of fiduciary duty, but pursuant to an agreement supported by adequate consideration.   It concluded plaintiff entered into the transaction knowingly and voluntarily, and there was no promise that Petra would return the property to plaintiff.   The court determined that, while fraud and breach of fiduciary duty are generally legal issues, the issues raised by those causes of action were disposed of by the determination of the equitable issues.   Judgment was entered accordingly and plaintiff appealed.

DISCUSSION

I. Right to Jury Trial

Plaintiff contends he was improperly denied a trial by jury on his legal causes of action for fraud and breach of fiduciary duty.   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 (Caira ).)   To make that determination, we must consider the nature of the claims being made by the parties.

“The right to a jury trial is guaranteed by our Constitution.  [Citation.]  We have long acknowledged that the right so guaranteed, however, is the right as it existed at common law in 1850, when the Constitution was first adopted, ‘and what that right is, is a purely historical question, a fact which is to be ascertained like any other social, political or legal fact.’  [Citations.]  As a general proposition, ‘[T]he jury trial is a matter of right in a civil action at law, but not in equity.’  [Citations.]”  (C & K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1, 8 (C & K Engineering ).)

“ ‘ “If the action has to deal with ordinary common-law rights cognizable in courts of law, it is to that extent an action at law.   In determining whether the action was one triable by a jury at common law, the court is not bound by the form of the action but rather by the nature of the rights involved and the facts of the particular case—the gist of the action.   A jury trial must be granted where the gist of the action is legal, where the action is in reality cognizable at law.” ’  [Citation.]  On the other hand, if the action is essentially one in equity and the relief sought ‘depends upon the application of equitable doctrines,’ the parties are not entitled to a jury trial.   [Citations.]  Although we have said that ‘the legal or equitable nature of a cause of action ordinarily is determined by the mode of relief to be afforded’ [citation], the prayer for relief in a particular case is not conclusive [citations].   Thus, ‘The fact that damages is one of a full range of possible remedies does not guarantee ․ the right to a jury․’  [Citation.]”  (C & K Engineering, supra, 23 Cal.3d at p. 9.)

Where legal and equitable remedies are sought in the same action, “ ‘each remedy must be governed by the same law that would apply to it if the other remedy had not also been asked for.’ ”  (Pacific Western Oil Co. v. Bern Oil Co. (1939) 13 Cal.2d 60, 66.)  “ ‘Thus, even though the action is essentially equitable, if the plaintiff requests legal relief, the parties are entitled to a jury trial on the legal issue.’ ”  (Hutchason v. Marks (1942) 54 Cal.App.2d 113, 119.)  “The practical problem presented by this rule is solved by the trial procedure ․ whereby the equitable issues are tried first and then, if any legal issues remain, a jury may be called.”  (Connell v. Bowes (1942) 19 Cal.2d 870, 872.)

At trial, plaintiff requested that the jury issues be tried first, arguing that the fraud and breach of fiduciary duty causes of action presented jury issues.   Defendants asserted that ownership of the property, an equitable issue, was the paramount question and requested that the equitable issues be tried first.   The court concluded the claims were equitable in nature, except the claims for damages.   It ordered that the declaratory relief, resulting trust, partition, and accounting causes of action be tried by the court as equitable claims;  it reserved the fraud and breach of fiduciary duty causes of action for later jury trial.

The first cause of action of plaintiff's complaint is captioned “declaratory fraudulent transfer.”   It alleges plaintiff signed a quit claim deed in reliance on Petra's representations that she would borrow money on the property and then return the property to joint ownership, but she refused to return it to joint ownership.   It “demands relief as set forth in more detail below.”   The second cause of action is for fraud.   It makes allegations of misrepresentations similar to those of the first cause of action, and adds that Petra represented the farm income would continue to be divided equally between plaintiff and defendants and would be sufficient to pay all expenses of the property.   It further alleges these representations were false;  defendants did not intend to transfer the property back to plaintiff, they intended to keep the farm income for their own use, and the farm produced a net profit but Petra said it was losing money.   Plaintiff alleged he was “damaged in an amount to be proved at trial.”   He also demanded “relief as set forth in more detail below.”

The third cause of action alleges plaintiff, who is illiterate, relied on defendants to take care of his finances;  they had a duty to act fairly and in good faith in their dealings with plaintiff, and they gained an advantage over him by using his trust to induce him to sign over title to the property.   Again, plaintiff demanded “relief as set forth in more detail below.”   The causes of action captioned resulting trust, partition by sale, and accounting incorporated by reference the allegations of all preceding causes of action and demanded “relief as set forth in more detail below.”

The prayer requested “[d]eclaratory relief in that the court order the transfer void and the property be reverted back to ANGELO and PETRA”;  “[d]eclaratory relief in that any and all encumbrances on the property is [sic ] the sole and separate responsibility of PETRA”;  “creation of a resulting trust with Plaintiff as the beneficiary”;  compensatory damages, partition, accounting, punitive damages, attorney fees, and “[s]uch other and further relief, equitable or statutory, [as] this Court may deem just and proper.”

The first cause of action of Petra's cross-complaint sought to quiet title to the property against claims by plaintiff, by determining plaintiff had no right, title, estate, lien, or interest in the property.   The second cause of action sought an accounting of all the money plaintiff collected while he was living on the property and responsible for its care, both while he and Petra owned the property jointly and after he deeded his interest in it to her.   The third cause of action sought partition by sale of the property, “[i]f for some reason the court limits [Petra's] interest in the property.”

“Declaratory relief is ‘classified as equitable by reason of the type of relief offered.’  [Citation.]  More specifically, a declaratory action to identify rights is distinct from a coercive action to enforce rights.”   (Caira, supra, 126 Cal.App.4th at p. 24.)   However, a declaratory relief action may not 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.’ ”  (State Farm etc.   Auto. Ins. Co. v. Superior Court (1956) 47 Cal.2d 428, 432.)   Cases have held that declaratory actions are “sui generis and may raise either legal or equitable issues.”   (Veale v. Piercy (1962) 206 Cal.App.2d 557, 560 (Veale );  Dills v. Delira Corp. (1956) 145 Cal.App.2d 124, 130 (Dills ).)   When a declaratory relief cause of action is used as a substitute for a legal cause of action, such as breach of contract, a jury trial may not be denied.  (Caira, at pp. 25–26.)   When it is used as a substitute for a coercive equitable cause of action, such as specific performance, dissolution of a partnership, or impressing a trust, the cause of action remains equitable and does not entitle a party to a jury trial of that claim.  (Ibid.;  Dills supra, at p. 130;  Hillman v. Stults (1968) 263 Cal.App.2d 848, 876–877 (Hillman ).)

Plaintiff's declaratory relief cause of action alleges essentially the same facts as his fraud, breach of fiduciary duty, and resulting trust causes of action.   The declaratory relief prayed for in his complaint is not a declaration, but an order for the return of plaintiff's interest in the property to him.   Thus, the declaratory relief cause of action seeks coercive relief.   Plaintiff essentially seeks the same remedy in his declaratory relief cause of action as in the resulting trust cause of action:  that Petra be required to reconvey plaintiff's interest in the property to him.   The nature of that relief is not legal, but equitable.

“When a transfer of real property is made to one person, and the consideration therefor is paid by or for another, a trust is presumed to result in favor of the person by or for whom such payment is made.”  (In re Marriage of Ruelas (2007) 154 Cal.App.4th 339, 342.)   This is termed a “ ‘ “resulting trust.” ’ ”  (Ibid.) In contrast, a “ ‘constructive trust’ ” is typically imposed to rectify fraudulent behavior or to prevent unjust enrichment.   (Ibid;  Martin v. Kehl (1983) 145 Cal.App.3d 228, 237.)  “The terms ‘constructive trust’ and ‘resulting trust’ have often been confused by attorneys, as well as some courts.  [Citations.]  Both are involuntary trusts implied by law.”  (Id. at p. 238.)   A resulting trust carries out the presumed intent of the parties;  a “ ‘ “constructive trust defeats or prevents the wrongful act of one of them.” ’ ”  (Ibid.) A constructive trust may be found when the person holding the property acquired it through fraud, undue influence, breach of trust, breach of a fiduciary duty or confidential relationship, or in any other improper manner.  (Cardozo v. Bank of America National Trust & Savings Assn. (1953) 116 Cal.App.2d 833, 840;  Warren v. Merrill (2006) 143 Cal.App.4th 96, 113.)   Both resulting trust and constructive trust are equitable remedies.  (Getty v. Getty (1986) 187 Cal.App.3d 1159, 1176;  Hillman, supra, 263 Cal.App.2d at pp. 876–877;  Woolsey v. Woolsey (1932) 121 Cal.App. 576, 581, [“[e]quity retains exclusive jurisdiction of actions to establish trusts and those which are founded on fraud”].)   Thus, whether plaintiff was seeking a resulting trust based on the intent of the parties or a constructive trust based on the alleged wrongdoing of defendants, the claim for imposition of a trust was equitable.

Thus, plaintiff's declaratory relief and resulting trust causes of action are equitable causes of action which do not entitle plaintiff to a jury trial.   Plaintiff's partition and accounting causes of action are also equitable.   (Elbert, Ltd. v. Clare (1953) 40 Cal.2d 498, 501;  De Guere v. Universal City Studios (1997) 56 Cal.App.4th 482, 507.)

The quiet title, partition, and accounting causes of action of the cross-complaint also presented equitable claims.   When the party in possession seeks to quiet title to real property, the pleading presents an equitable issue;  when a party seeks to quiet title and obtain possession of the property, the claim involves a legal issue (ejectment).  (Thomson v. Thomson (1936) 7 Cal.2d 671, 681 (Thomson ).)   Although Petra's quiet title cause of action alleges she “is the owner in fee simple and entitled to possession” of the property, it merely sought to quiet title against the claims of cross-defendants by obtaining a determination that they had no interest in the property.   The prayer likewise sought only “a judgment that ․ Petra Garcia is the owner in fee simple of the property and that cross-defendants have no interest in the property adverse to ․ Petra Garcia.”   Petra did not, either in her cross-complaint or at trial, obtain possession of the property from plaintiff.   Consequently, the cross-complaint presented only equitable issues.

Plaintiff asserts he had a right to a jury trial on the causes of action for fraud and breach of fiduciary duty.   Plaintiff's fraud cause of action was the only cause of action that expressly alleged damages, although the prayer for compensatory damages may be liberally construed to apply also to the breach of fiduciary duty cause of action.   An action for damages for fraud is an action at law in which a right to jury trial ordinarily exists.  (Raedeke v. Gibraltar Sav. & Loan Assn. (1974) 10 Cal.3d 665, 671.)   Plaintiff asserts without citation of authority that his breach of fiduciary duty cause of action is also a legal claim.  Van de Kamp v. Bank of America (1988) 204 Cal.App.3d 819 suggests an action for damages for breach of fiduciary duty is an action at law only when the liability of the fiduciary is “definite and clear” and no accounting is needed to establish it.  (Id. at p. 864.)   When an accounting is needed, the action is equitable.  (Ibid.)

Even if we assume plaintiff's claims for damages for fraud and breach of fiduciary duty constitute legal claims, the trial court did not improperly deny plaintiff a jury trial on the legal claims.   The trial court ordered that the equitable claims be tried by the court first, and reserved the legal claims for later trial by a jury.   The court properly bifurcated the equitable claims to be tried first.

In Thomson, the plaintiff filed an action to quiet title to real property;  the defendant answered and cross-complained, claiming he held a one-fourth interest in the property and had been wrongfully ejected from possession.   (Thomson, supra, 7 Cal.2d at pp. 673–674.)   The trial court denied the defendant's demand for a jury trial and found in favor of the plaintiff.   The reviewing court noted that the plaintiff's claims were triable by the court, and the defendant was entitled to a jury trial on his claims.  (Id. at p. 682.)   It concluded that the trial court properly tried the equitable issues first without a jury.  (Id. at pp. 682–683.)   Having found in favor of the plaintiff on the complaint—that the plaintiff was the owner of the property and the defendant held no interest in it—”there was nothing further for the court to consider.   It necessarily followed, if plaintiff was the owner of said real property at the time the defendant claims he was illegally ejected therefrom and entitled to the possession thereof, that defendant's action by cross-complaint must fail.   Had the court found against plaintiff in the action to quiet title, then it would have been its duty to try the issue of ejectment under defendant's cross-complaint.”  (Id. at p. 683.)   That did not occur, and, because it was the only issue on which defendant was entitled to a jury trial, the trial court did not err in denying defendant's demand for a jury trial.  (Ibid.)

In Dills, the plaintiff contended he was improperly denied a jury trial.   His complaint alleged he held an interest in a partnership;  he sought a declaration of his interest in it and an accounting of profits derived from the use of its property.   He also included a cause of action for money had and received by the defendants based on the outcome of the accounting.   The trial court ordered a nonjury trial of the equitable issues first.  (Dills, supra, 145 Cal.App.2d at p. 129.)   In that trial, it determined the plaintiff was not a partner in the partnership and had no interest in its property.  (Ibid.) Consequently, there was no need for an accounting or a jury trial on the common counts.   The court concluded:  “There is no question but that the trial court properly tried equitable before legal issues.   This procedure is particularly useful, where, as here, a determination of the equitable issue may determine the lawsuit and prevent a more costly jury trial.”  (Ibid.)

In Veale, the plaintiffs filed an action for declaratory relief to determine ownership of overlapping mining claims.   The defendants denied the plaintiffs' title and alleged their own title and possession;  they also filed a cross-complaint seeking a declaration that they owned a certain road leading to the claims.   After a court trial, the trial court determined the defendants held paramount title where the claims conflicted.  (Veale, supra, 206 Cal.App.2d at p. 560.)   Because both the complaint and the cross-complaint alleged the pleading party had possession of the property and they both sought a declaration of ownership, both presented only equitable claims.   The defendants' answer, however, alleged that the dispute involved possession of the overlapping property claims.  (Id. at p. 562.)   Thus, as in Thomsen, the action presented both legal and equitable issues.  “[W]here the pleadings frame two separate issues, one equitable (here title to the property) and the other legal (here right to possession), either litigant has the right to have the legal issues tried by a jury.”  (Veale, at p. 562.)   However, “ ‘ “[w]hen an action involves both legal and equitable issues, the equitable issues, ordinarily, are tried first, for this may obviate the necessity for a subsequent trial of the legal issues.”  [Citation.]’ ”  (Id. at pp. 562–563.)   The court concluded plaintiff was not improperly denied a jury trial.   “[T]he court first tried the equitable issue, that is, title to the property․  Once the court decreed that defendants' placer mining claims prevailed over plaintiffs' lode mining claims, plaintiffs' demand for a jury trial of the legal issues became moot.   This is so since the right to possession necessarily is dependent upon the paramount title, which was found to be in defendants.”  (Id. at p. 563.)

In Nwosu v. Uba (2004) 122 Cal.App.4th 1229 (Nwosu ), Nwosu filed an action against Uba, alleging he entered into an oral agreement with Uba that Nwosu would refinance his residential property with Uba's cooperation;  the property would be deeded to Uba in exchange for $ 1,000, Nwosu would continue to possess and own the property and pay its expenses, and Uba would reconvey the property to Nwosu “ ‘within a reasonable time upon demand.’ ”  (Id. at p. 1235.)   Nwosu alleged six causes of action:  specific performance of a contract to convey title to Nwosu, quiet title, declaratory relief regarding ownership of the property, foreclosure of an equitable lien, injunctive relief, and fraud (alleging Nwosu conveyed title to Uba based on Uba's false promise she would deed it back on demand).   Uba cross-complained, seeking to quiet title to the residence and to recover money she lent to Nwosu.  (Id. at p. 1232.)   The trial court tried the equitable issues first:  all of the complaint except the sixth cause of action for damages for fraud, and the quiet title cause of action of the cross-complaint.  (Id. at pp. 1235–1236, 1242.)   The trial court found in favor of Uba, concluding the transaction was a sale of the property to her.   It then entered judgment, finding there was nothing left to be tried on Nwosu's fraud cause of action.  (Id. at 1236.)   Nwosu appealed, contending he was denied his right to a jury trial on the fraud cause of action.  (Id. at p. 1237.)

The court stated the rule:  “Where plaintiff's claims consist of a ‘mixed bag’ of equitable and legal claims, the equitable claims are properly tried first by the court.”  (Nwosu, supra, 122 Cal.App.4th at p. 1238.)   It determined Nwosu's first five causes of action were equitable, and the sixth cause of action for fraud presented a legal claim on which he was entitled to a jury trial.  (Id. at pp. 1240–1241.)   Uba's cross-complaint presented one equitable claim (quiet title) and three legal claims (common counts and damages for negligence).  (Id. at p. 1241.)   The court concluded:

“It is beyond question that the trial court had the authority to order a trial of the equitable claims before a trial of the remaining legal claim.   [Citation.]  Indeed, this is the preferred procedure where the case includes both equitable and legal claims.  [Citation.]  In light of the fact that the gist of Nwosu's complaint sought relief from a court of equity—both substantively and numerically (i.e., from the standpoint that five of the six claims were equitable)—the court properly chose to hold a separate trial on Nwosu's specific performance, quiet title, and other equitable claims.

“Having tried and decided Nwosu's equitable claims first—after hearing substantial testimony and after receiving extensive documentary evidence—the court concluded that this trial disposed of Nwosu's fraud claim;  accordingly, it entered judgment.   In essence, although not expressed in the judgment, ‘[a]s so often happens in such a situation the solution of the equitable issues disposes of the legal issues.’  [Citation.]  We agree with the trial court's conclusion that trial of the equitable issues disposed of the legal claim for fraud.”  (Nwosu, supra, 122 Cal.App.4th at p. 1242.)

The fraud cause of action contained the same allegations as the equitable causes of action, except it requested damages and characterized Uba's conduct as a false promise, instead of a breach of contract.  (Nwosu, supra, 122 Cal.App.4th at p. 1242.)   The trial court found there was no refinancing agreement;  the transaction was a bona fide sale of the property.   The trial court's findings that the transaction was not a refinancing arrangement and Uba did not agree to convey the property back to Nwosu on demand disposed of the legal claim of fraud.  (Id. at p. 1243.)

“[T]he fact that the trial of the equitable issues first resulted in factual findings that implicated the legal claims does not mean that Nwosu was improperly denied the right to a jury trial.  [Citation.]  [¶] Stated otherwise, the clear import of the cases authorizing an initial trial of the equitable claims ․ is this:  The court may decide the equitable issues first, and this decision may result in factual and legal findings that effectively dispose of the legal claims.   This is precisely what happened here, where the court's determination of the equitable issues in favor of Uba precluded Nwosu's recovery under his fraud theory.”  (Nwosu, supra, 122 Cal.App.4th at p. 1244.)

In Hoopes v. Dolan (2008) 168 Cal.App.4th 146 (Hoopes ), the court explained the rule authorizing trial of equitable issues before legal issues in more detail.

“The order of trial, in mixed actions with equitable and legal issues, has great significance because the first fact finder may bind the second when determining factual issues common to the equitable and legal issues.   [Citation.]  It is well established in California jurisprudence that ‘[t]he court may decide the equitable issues first, and this decision may result in factual and legal findings that effectively dispose of the legal claims.’   [Citation.]  This district Court of Appeal has observed that the ‘better practice’ is for ‘the trial court [to] determine the equitable issues before submitting the legal ones to the jury.’  [Citation.]  The historical reason for this procedure, at least as concerns equitable defenses, is that the same order of trial was observed when there were separate law and equity courts:  ‘If a defendant at law had an equitable defense, he resorted to a bill in equity to enjoin the suit at law until he could make his equitable defense effective by a hearing before the chancellor.’  [Citation.]  ‘[T]he practical reason for this procedure is that the trial of the equitable issues may dispense with the legal issues and end the case.’  [Citation.]  In short, ‘trial of equitable issues first may promote judicial economy.’  [Citation.]

“California's preference for the trial of equitable issues before legal issues has produced a number of cases in which bench resolution of equitable issues preceded consideration of legal claims, and curtailed or foreclosed legal issues.  [Citation.]  ‘It is well established that, in a case involving both legal and equitable issues, the trial court may proceed to try the equitable issues first, without a jury ․ and that if the court's determination of those issues is also dispositive of the legal issues, nothing further remains to be tried by a jury.’  [Citation.]”  (Hoopes, supra, 168 Cal.App.4th at pp. 156–157.)

Citing Walton v. Walton (1995) 31 Cal.App.4th 277, plaintiff contends the trial of the equitable issues can only obviate the need for a trial of the legal issues when mutually exclusive legal and equitable remedies are sought.   He asserts the remedies he sought were not mutually exclusive, so he should have been afforded a trial of his claim for the legal remedy of damages.   In Walton, the court recognized that “[a] plaintiff may plead inconsistent, mutually exclusive remedies, such as breach of contract and specific performance, in the same complaint.”  (Id. at p. 292.)   In that situation, “there need not be a trial on both remedies.”  (Ibid.) The court distinguished “cases where a claim of one nature was raised by way of cross-complaint to a complaint of a different nature [citation], or where one party raised cumulative legal and equitable remedies that were not mutually exclusive [citations]”;  in such cases, “all claims—legal and equitable—must be tried, and the right to jury trial cannot be defeated by severance of the equitable claim.”  (Id. at p. 293.)   Here, plaintiff sought both the legal remedy of damages and the return of the property on equitable grounds based on allegations he transferred his interest in the real property to Petra as a result of fraud and breach of fiduciary duty.   These constitute mutually exclusive remedies for the same alleged wrongs.   Plaintiff could recover his interest in the property, or damages for its loss, but not both.   Thus, Walton does not dictate a different result.

A trial court has discretion to sever causes of action or issues for separate trial “in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy.”  (Code Civ. Proc., § 1048, subd. (b).)  Cases indicate it is the “ ‘better practice’ ” to try the equitable issues before the legal issues.  (Hoopes, supra, 168 Cal.App.4th at p. 157.)   The trial court did so, and we find no abuse of discretion in that decision.   The legal and equitable causes of action were based on the same set of facts and the same alleged wrongs.   After hearing the evidence, the trial court found plaintiff agreed to deed his interest in the property to Petra in exchange for her agreement to have the house painted, her past contributions to the expenses of maintaining the property, and her promise to allow plaintiff to continue to live on the property for the rest of his life.   Plaintiff deeded the property to Petra, Petra had the house painted, and plaintiff continued to live on the property.   The trial court found the agreement was not the result of any fraud, misrepresentation, or breach of fiduciary duty.   The court's disposition of the equitable issues obviated the need for a trial of the legal claims for damages, which were based on the same allegations of fraud and breach of fiduciary duty that the court determined adversely to plaintiff.   Plaintiff was not denied his right to a jury trial of the legal issues.

II. Adequacy of Consideration

Plaintiff contends there was no evidence to support the trial court's finding that there was adequate consideration for plaintiff's agreement to transfer his interest in the real property to Petra.   He seems to contend the only consideration in evidence was past consideration, which he contends was not sufficient to support a contract.

“ ‘When a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact.’   [Citations.]”  (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)   “ ‘[A] reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact.’  [Citations.]”  (Ibid.) The party challenging the sufficiency of the evidence to support a finding must demonstrate there is no sufficient evidence to support it;  to do so, the party must “ ‘set forth in their brief all the material evidence on the point and not merely their own evidence.   Unless this is done the error is deemed to be waived.’  [Citation.]”  (Ibid.) Plaintiff failed to set forth in his brief any evidence supporting his argument.   His statement of facts does not cite to any evidence presented at trial;  it cites only to plaintiff's post trial brief.   His argument on this issue refers only to the trial court's statement of decision.   Thus, this challenge to the judgment may be deemed waived.

In any event, the record contains Petra's testimony that she and plaintiff discussed having the house repainted;  this required taking a loan out on the property.   When Petra took out the loan, she told plaintiff he needed to sign over his interest in the property to her because she would be assuming the loan.   She also told him he could continue to live on the farm.   Thus, there was evidence of consideration other than past consideration for plaintiff's conveyance of his interest in the property to Petra.   Plaintiff's claim that substantial evidence was lacking is without merit.

DISPOSITION

The judgment is affirmed.   Defendants are awarded their costs on appeal.

HILL, P.J.

WE CONCUR:

WISEMAN, J.

POOCHIGIAN, J.