YEHUDA EREZ KDOSA BOAZ EREZ v. SARA EREZ KDOSA (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Law Offices of Alan Abergel and Alan Abergel for Petitioner and Appellant.

Glicker & Associates, Brian Glicker and Maryam Atighechi for Objector and Respondent.

Petitioner seeks to set aside an order awarding certain property of his deceased father to petitioner's step-mother.   Petitioner claims that after his father's death his step-mother obtained the property through extrinsic and intrinsic fraud.   The cause was tried to the court which, at the close of petitioner's evidence, granted the step-mother's motion for judgment under Code of Civil Procedure section 631.8 We affirm.

FACTS AND PROCEEDINGS BELOW

The following facts are undisputed.   Petitioner Boaz Erez is the son of Yehuda Erez-Kdosa who died intestate.   Respondent Sara Erez-Kdosa was married to Yehuda at the time of his death.¹  Following Yehuda's death Sara filed a Spousal Property Petition claiming as community property certain real estate and bank accounts acquired during their marriage with income earned during the marriage.   In July 2007, the trial court issued an order confirming Sara's sole ownership of the subject property.   There was no appeal from this order.

In July 2008, Boaz filed a petition to set aside the spousal property order and, in April 2009, filed a petition under section 850 of the Probate Code to determine the ownership of the property of Yehuda's estate.   Both petitions alleged that Sara obtained the spousal property order and possession of the subject property through extrinsic fraud by intentionally sending notice of the Spousal Property Petition to Boaz at an incorrect addresses to prevent him from appearing and contesting the petition.   To show prejudice, Boaz alleged that Sara committed intrinsic fraud by falsely representing to the court that she and Yehuda were the sole owners of the subject property as community property when she knew that Boaz owned a 70 percent interest in the property.

The two petitions were tried together before the court.   After Boaz presented his evidence, the court granted Sara's motion for judgment under Code of Civil Procedure section 631.8 ² on the ground that Boaz “failed to meet his burden of proof to establish that Respondent has committed extrinsic fraud on either Petitioner or the court and/or to establish Petitioner's ownership in Erez Investments, Inc.” Boaz filed a timely appeal.

DISCUSSION

I. ISSUES PRESENTED BY BOAZ'S BRIEF

Boaz argues the court erred in granting judgment to Sara because:  (1) the court failed to weigh the evidence and make findings;  (2) Boaz's evidence and applicable evidentiary presumptions prove that he is a 70 percent owner of the subject property;  (3) the court excluded admissible evidence relevant to prove Boaz's part ownership of the subject property;  and (4) the court committed prejudicial misconduct.

Boaz does not challenge the court's determination that he “failed to meet his burden of proof to establish that Respondent has committed extrinsic fraud on either Petitioner or the court․” ³  Without proof of extrinsic fraud the court had no basis for setting aside the Spousal Property Order.  (Estate of McGuigan (2000) 83 Cal.App.4th 639, 649-650;  8 Witkin, Cal. Procedure (5th ed.   2008) Attack on Judgment in Trial Court, § 241, pp. 857-858.)   Accordingly, we do not reach the evidentiary issues concerning Boaz's claim to an interest in the property.

II. THE COURT'S DUTY TO WEIGH THE EVIDENCE AND ISSUE

A STATEMENT OF DECISION

Section 631.8 provides that when ruling on a motion under section 631.8, the court “shall weigh the evidence” and if it rules in favor of the defendant it “shall make a statement of decision.” ⁴  Boaz argues the judgment must be reversed because the trial court failed to weigh the evidence and failed to make “findings.”   Boaz's argument lacks merit.

The statute does not require the court to make “findings;” it requires the court to make “a statement of decision as provided in Sections 632 and 634.”   Section 632 states in relevant part that “upon the trial of a question of fact by the court, written findings of fact and conclusions of law shall not be required” rather, the court “shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at the trial․”  (Italics added.)

The trial court in this case issued a 6 page statement of decision which adequately set forth the factual and legal basis for its decision on the principal converted issues at trial.

Boaz's opening brief on appeal argues in a conclusory manner that the court failed to weigh the evidence and incorporates by reference 11 objections Boaz made in the trial court to the court's proposed statement of decision.   In an appellate brief the incorporation by reference of arguments made in the trial court is inappropriate for the reasons explained in Parker v. Wolters-Kluwer United States, Inc. (2007) 149 Cal.App.4th 285, 290 and prohibited by

III. MOTION FOR MISTRIAL

After Boaz rested and before the court ruled on Sara's motion for judgment, Boaz moved for a mistrial alleging “that the judge is biased in this case towards the respondent․”  The court denied the motion.   We review the court's ruling for abuse of discretion.  (Blumenthal v. Superior Court (2006) 137 Cal.App.4th 672, 678.)

Boaz argues that the court was biased against him because the court prevented him from making offers of proof after it ruled certain items of evidence inadmissible, prohibited him from reading into the record portions of documents admitted into evidence, failed to consider some of his evidence, assisted Sara in bringing her motion for judgment and failed to sanction Sara for failing to file a “Mandatory Joint Trial Statement” as required by a local court rule.   None of these arguments have merit.

A. Errors in Excluding Evidence

We need not consider Boaz's first three grounds for mistrial because they pertain to the court's evidentiary rulings regarding Sara's alleged intrinsic fraud in falsely claiming full ownership of the subject property.   As we explained above, the court found that Boaz failed to prove his claim of extrinsic fraud (that Sara fraudulently prevented him from appearing and contesting her property petition) and Boaz does not challenge this finding on appeal.   Therefore, we do not reach the merits of Boaz's claim to part ownership of the property.

B. Providing Legal Assistance to Sara

Boaz maintains that he was denied a fair trial because the court provided legal assistance to Sara in bringing her motion for judgment under section 631.8.

The record does not support Boaz's claim.   At the close of Boaz's evidence Sara's counsel, without any prompting from the court, stated:  “I do not believe they have carried their burden in the petition or in the [Probate Code section] 850 petition.   And their burden is to overturn the spousal property petition.   I do not believe they have carried that burden with what they have done.   So I'm asking at this time that the petition be denied, the 850 petition and the petition ․ on the spousal property order.”   Counsel argued “there's been no evidence produced as to extrinsic fraud.”   After the court suggested that the parties return at a later date to argue whether Boaz had met his burden of proof the following colloquy occurred.

“Mr. Abergel [counsel for Boaz]:  ․ I would like Mr. Glicker [counsel for Sara] to make this motion in writing so I can respond to it.   I would like-

“The court:  He's not required to do that.   He's doing it at the conclusion of the presentation of your case.

“Mr. Abergel:  And the motion is called motion to dismiss?

“The court:  Yes.

“Mr. Abergel:  Okay.

“The court:  Pursuant to 631.8 of the ․ Code of Civil Procedure.   I always get them mixed up.   I'll tell you which one it is right now.

“Mr. Abergel:  Making a motion to dismiss pursuant to what?   Isn't it inappropriate for the judge to be telling him?

“The court:  I'm telling you what it is.   It's 631.8 of the Code of Civil Procedure.

“Mr. Abergel:  I would like him to say it.

“The court:  It's 631.8 of the Code of Civil Procedure.   I'm not giving it to Mr. Glicker.   He's the one that made the motion.

“Mr. Abergel:  He needs to say what authority he's using to make a motion.”

Section 631.8, subdivision (a) states in relevant part:  “After a party has completed his presentation of evidence in a trial by the court, the other party ․ may move for a judgment.”   The statute does not require that the defendant make the motion in writing nor does it require that the court afford the plaintiff the opportunity to file a written response.   Nevertheless, in this case argument on the motion was continued for two weeks and Boaz filed a written response.

Boaz has not cited any authority, nor have we found any, requiring that the defendant state that she is making a “motion for judgment” or that she cite section 631.8 as the authority for the motion.   Courts often refer to a motion under section 631.8 as a “motion to dismiss,” as the court did here.  (See, e.g. Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556 [the court heard “defendants' motion to dismiss under ․ section 631.8”];  National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 526, fn. 14 [allegations “so lacking in evidentiary support that they could not even survive a motion to dismiss under ․ section 631.8”];  County of Ventura v. Marcus (1983) 139 Cal.App.3d 612, 615 [referring to motion under ․ section 631.8 as “motion to dismiss].)   Regardless of the label the court gave the motion, Boaz was not misled.   Boaz, who represented that he was “four years attorney,” and could “teach all of you the rules of evidence,” and had done “tons of research” and “read practice guides” should have understood from Sara's argument that the petitions should be denied because “there's been no evidence produced as to extrinsic fraud” that she was making a motion under section 631.8.

C. Failure to Sanction Sara for Not Submitting a

“Mandatory” Trial Statement

Finally, Boaz contends the court demonstrated bias against him by denying his request for issue preclusion sanctions against Sara because she failed to file a joint or separate “mandatory” trial statement as required by the local superior court rules for the probate department.

Although the trial statement may be “mandatory,” the sanctions are not.   The rule states in relevant part:  “If any attorney or party fails to comply with the provisions of these instructions [regarding filing of a trial statement] ․ the court may impose appropriate sanctions against that party or attorney including but not limited to:  a summary determination of any contested issues․”  (Italics added.)   Boaz does not explain why the failure to sanction Sara constituted an abuse of discretion.  (See Cal. Rules of Court, rule 8.204, subdivision (a)(1)(B) discussed above.)

DISPOSITION

The orders are affirmed.   Respondent is awarded her costs on appeal.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. To avoid confusion we will refer to the parties by their first names..  FN1. To avoid confusion we will refer to the parties by their first names.

FN2. All statutory references are to the Code of Civil Procedure except where otherwise stated..  FN2. All statutory references are to the Code of Civil Procedure except where otherwise stated.

FN3. In any case, a review of Boaz's declaration supports the trial court's conclusion that Sara's notice was not fraudulent.   A Notice of a Spousal Property Petition may be addressed to “the person's place of business or place of residence.”  (Prob.Code § 1220, subd. (a)(3).)   Boaz does not dispute that Sara sent him the notice at the address listed for him in the records of the Virginia Corporation Commission as the registered agent for a limited liability company.   Although his declaration states he told Sara he had moved out of this residence, which he had been sharing with his wife, he does not claim he told Sara that it was no longer his business address or that he had informed Sara of, or that Sara knew, his new address..  FN3. In any case, a review of Boaz's declaration supports the trial court's conclusion that Sara's notice was not fraudulent.   A Notice of a Spousal Property Petition may be addressed to “the person's place of business or place of residence.”  (Prob.Code § 1220, subd. (a)(3).)   Boaz does not dispute that Sara sent him the notice at the address listed for him in the records of the Virginia Corporation Commission as the registered agent for a limited liability company.   Although his declaration states he told Sara he had moved out of this residence, which he had been sharing with his wife, he does not claim he told Sara that it was no longer his business address or that he had informed Sara of, or that Sara knew, his new address.

FN4. Section 631.8, subdivision (a) states:  “(a) After a party has completed his presentation of evidence in a trial by the court, the other party, without waiving his right to offer evidence in support of his defense or in rebuttal in the event the motion is not granted, may move for a judgment.   The court as trier of the facts shall weigh the evidence and may render a judgment in favor of the moving party, in which case the court shall make a statement of decision as provided in Sections 632 and 634, or may decline to render any judgment until the close of all the evidence.   The court may consider all evidence received, provided, however, that the party against whom the motion for judgment has been made shall have had an opportunity to present additional evidence to rebut evidence received during the presentation of evidence deemed by the presenting party to have been adverse to him, and to rehabilitate the testimony of a witness whose credibility has been attacked by the moving party.   Such motion may also be made and granted as to any cross-complaint.”.  FN4. Section 631.8, subdivision (a) states:  “(a) After a party has completed his presentation of evidence in a trial by the court, the other party, without waiving his right to offer evidence in support of his defense or in rebuttal in the event the motion is not granted, may move for a judgment.   The court as trier of the facts shall weigh the evidence and may render a judgment in favor of the moving party, in which case the court shall make a statement of decision as provided in Sections 632 and 634, or may decline to render any judgment until the close of all the evidence.   The court may consider all evidence received, provided, however, that the party against whom the motion for judgment has been made shall have had an opportunity to present additional evidence to rebut evidence received during the presentation of evidence deemed by the presenting party to have been adverse to him, and to rehabilitate the testimony of a witness whose credibility has been attacked by the moving party.   Such motion may also be made and granted as to any cross-complaint.”

CHANEY, J. JOHNSON, J.