Santoro v. Carbone

• Decision Date: 06 January 1972
• Citation: 22 Cal.App.3d 721,99 Cal.Rptr. 488
• Court: California Court of Appeals Court of Appeals
• Parties: Thomas J. SANTORO, Plaintiff and Respondent, v. Theresa M. CARBONE, Defendant and Appellant. Civ. 38310.

Page 488

99 Cal.Rptr. 488

22 Cal.App.3d 721

Thomas J. SANTORO, Plaintiff and Respondent, v. Theresa M. CARBONE, Defendant and Appellant.

Civ. 38310.

Court of Appeal, Second District, Division 4, California.

Jan. 6, 1972.

Broun, Norris, King, Graaskamp & Lancefield and Bernard M. King, Fremont, for defendant and appellant.

James B. Gentry, Reseda, for plaintiff and respondent.

DUNN, Associate Justice.

Plaintiff commenced an action to quiet title to real property conveyed by grant deed dated March 24, 1965, to plaintiff and defendant as joint tenants. In the complaint it was alleged that plaintiff had purchased the property and caused title to be placed in the names of the parties as joint tenants, in reliance on defendant's false representation that if plaintiff did so defendant would remarry him. Defendant filed an answer alleging as a purported affirmative defense (1) that the complaint did not state facts sufficient to constitute a cause of action, and, as a further affirmative defense, (2) that plaintiff was estopped to claim false representations on the part of defendant because when the property was purchased plaintiff was married to another woman. Defendant also filed a cross-complaint seeking partition of the property and an accounting of rents collected by plaintiff.

The action was tried without a jury. Explanatory evidence was introduced showing: plaintiff and defendant were married in Massachusetts in September 1945, and had two children. In 1960 the family moved to California. The parties were separated in 1963. Defendant then went to Massachusetts where she commenced an action to divorce plaintiff on February 19, 1963. The final decree was entered August 20, 1963, and on August 31st defendant and James Carbone were married in Massachusetts. Thereafter defendant returned to California, accompanied by Mr. Carbone. In December 1964 she separated from him briefly and went to live with plaintiff and their two children in an apartment. Plaintiff had married Harriet Santoro in November 1963, but had obtained an interlocutory decree of divorce from her by the time defendant began living with him and the children. Plaintiff expected his final decree to be entered in July 1965.

Findings of fact and conclusions of law were signed and filed. The court found: defendant falsely represented to plaintiff that she would remarry him if he purchased the house and had title placed in the names of the parties as joint tenants defendant knew such representation was false, but plaintiff believed it was true and in reliance thereon entered into a contract to purchase the house and had title placed in joint tenancy; had plaintiff known the true facts he would not have taken such action; the parties lived together in the house for less than two months and then defendant moved out and immediately returned to her second husband; after leaving, defendant did not request an accounting of rents until she filed her answer and cross-complaint and, except for demanding $2,000 to execute a quitclaim deed, she made no claim upon the property; defendant contributed $200 toward the purchase price, but plaintiff made all other payments on the property; plaintiff was damaged by defendant's fraud in that he was induced to place title in joint tenancy with defendant when he otherwise could have purchased the property in his name, alone; defendant was not entitled to a partition of the property or to an accounting of rents collected.

The court concluded that because of defendant's fraud, she had no right, title or interest in the property, but that she was entitled to restitution of $200 representing her contribution toward the purchase price. Judgment was entered decreeing that plaintiff was the owner in fee simple of the property, quieting title in him, enjoining defendant from asserting any claim to the property, and ordering plaintiff to pay defendant $200.

Defendant appeals from the judgment. She contends, first, that there was no evidence to support two findings necessary to establish fraud, Viz., (1) that defendant made false representations by telling plaintiff she would remarry him if he purchased the property in their names, (2) when she had no intention of doing so. (See: Hobart v. Hobart Estate Co., 26 Cal.2d 412, 422, 159 P.2d 958 (1945); Haussler v. Wilson, 164 Cal.App.2d 421, 428, 330 P.2d 670 (1958); Anderson v. Handley, 149 Cal.App.2d 184, 186, 308 P.2d 368 (1957).)

As to the making of the false representation, plaintiff testified that defendant said she would remarry him if he purchased a house. She never did remarry him and could not, for, after divorcing plaintiff, she had married Carbone and remained so married, never having sought a divorce from him. ¹ This constituted substantial evidence supporting the findings; the fact part of such evidence was contradicted by defendant's testimony is immaterial. (Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc., 66 Cal.2d 782, 784, 59 Cal.Rptr. 141, 427 P.2d 805 (1967); Crawford v. Southern Pacific Co., 3 Cal.2d 427, 429, 45 P.2d 183 (1935); Tucker v. Beneke, 180 Cal. 588, 591, 182 P. 299 (1919); Quindt v. Kilpatrick, 96 Cal.App.2d 824, 826, 216 P.2d 481 (1950).) Since direct proof of fraudulent intent is often impossible, the intent may be established by inference from acts of the parties. (Fross v. Wotton, 3 Cal.2d 384, 393, 44 P.2d 350 (1935); Estate of Newhall, 190 Cal. 709, 721, 214 P. 231 (1923); Maxson v. Llewelyn, 122 Cal. 195, 198, 54 P. 732 (1898); Bohn v. Watson, 130 Cal.App.2d 24, 33--34, 278 P.2d 454 (1954); Taylor v. Osborne-Fitzpatrick Fin. Co., 57 Cal.App.2d 656, 661, 135 P.2d 598 (1943); Palladine v. Imperial Valley Farm Lands Ass'n, 65 Cal.App. 727, 753, 225 P. 291 (1924).) The subsequent failure to perform as promised warrants the inference that defendant did not intend to perform when she made the promise. (Longway v. Newbery, 13 Cal.2d 603, 611--612, 91 P.2d 110 (1939); Boyd v. Bevilacqua, 247 Cal.App.2d 272, 292, 55 Cal.Rptr. 610 (1966); Kejr v. Construction Engineers, Inc., 128 Cal.App.2d 396, 400, 275 P.2d 529 (1954); Grant v. United States Electronics Corp., 125 Cal.App.2d 193, 199--200, 270 P.2d 64 (1954); Jarkieh v. Badagliacco, 75 Cal.App.2d 505, 509, 170 P.2d 994 (1946); Klutts v. Rupley, 58 Cal.App.2d 560, 563, 137 P.2d 496 (1943); Estate of Barrow, 27 Cal.App.2d 402, 405, 80 P.2d 1006 (1938).) The evidence established that less than two months after the house was purchased and the parties moved in, defendant left plaintiff and returned to her second husband. Defendant's conduct supports the finding that when she told plaintiff she would remarry him her representation was false.

Defendant correctly states that fraud must be proved by clear and convincing evidence. (Aggregates Associated, Inc. v. Packwood, 58 Cal.2d 580, 588, 25 Cal.Rptr. 545, 375 P.2d 425 (1962); Evid.Code § 115.) But it is the function of the trial court, not the reviewing court, to determine whether that standard has been met, and the trial court's determination of the issue is conclusive where, as here, it is supported by substantial evidence. (Boyd v. Bevilacqua, Supra, 247 Cal.App.2d at pp. 292--293, 55 Cal.Rptr. 610; Gold v. Maxwell, 176 Cal.App.2d 213, 218, 1 Cal.Rptr. 226 (1959).)

The remainder of defendant's argument on this phase of the appeal is devoted to a discussion of inferences which could be drawn from evidence showing honesty and fair dealing on the part of defendant. However, it was the exclusive province of the trial court to determine which of two or more reasonable inferences should be drawn; and its findings, based on the inferences drawn, cannot be disturbed on appeal. (Maslow v. Maslow, 117 Cal.App.2d 237, 243, 255 P.2d 65 (1953).)

Defendant next contends the judgment must be reversed because there was no evidence to support the finding that plaintiff was damaged as a result of the fraud. Defendant apparently assumes there was no damage because it was not shown that the property had depreciated in value or that the rents collected by plaintiff were less than the amount of the mortgage payments he was required to make.

In an action to recover damages for fraud, the plaintiff must allege and prove the precise amount of his damages. (Munson v. Fishburn,183 Cal. 206, 216, 190 P. 808 (1920).) The instant action, however, was not one to recover damages but was an equitable suit to quiet title; it was akin to an action for rescission on the ground of fraud. In such an action, the plaintiff need not plead or prove pecuniary loss so long as the record indicates injury or prejudice resulting from the fraud. (Earl v. Saks & Co., 36 Cal.2d 602, 611, 226 P.2d 340 (1951); Hefferan v. Freebairn, 34 Cal.2d 715, 721, 214 P.2d 386 (1950); Munson v. Fishburn, Supra, 183 Cal. at p. 216, 190 P. 808.)

The court found that plaintiff was damaged because he had been induced by defendant's fraud to place title to the property in joint tenancy. ² Where property is held in joint tenancy, upon the death of one joint tenant the survivor becomes the sole owner in fee by right of survivorship and no interest in the property passes to the heirs, devisees or personal representatives of the joint tenant first to die. (In re Kessler,217 Cal. 32, 34, 17 P.2d 117 (1932); People v. Nogarr, 164 Cal.App.2d 591, 593, 330 P.2d 858 (1958); Cole v. Cole, 139 Cal.App.2d 691, 694, 294 P.2d 494 (1956); Plante v. Gray, 68 Cal.App.2d 582, 588, 157 P.2d 421 (1945).) Hence, the joint tenancy was prejudicial to plaintiff because if he predeceased defendant, who was not his wife and could not become such, she would acquire title to the property to the exclusion of plaintiff's heirs or devisees, regardless of their relationship to plaintiff.

Moreover, a joint tenant may sell or encumber only his own interest in the property held in joint tenancy. (Estate of Harris, 9 Cal.2d 649, 659, 72 P.2d 873 (1937); Los Angeles Lighting Co. v. City of Los Angeles, 106 Cal. 156,...