MINOO SHAYESTEH, Plaintiff and Appellant, v. NAGIN WELCH, Defendant and Respondent.
D079462
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Filed 3/16/22
Sunil R. Kulkarni, Judge.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS. (Super. Ct. No. 2015-1-CV-282358). 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
The Law Offices of John H. Perrott and John Henry Perrott for Plaintiff and Appellant.
Jensen & McDonald and Edward C. McDonald for Defendant and Respondent.
Sisters Minoo Shayesteh and Nagin Welch dispute the ownership of property located at 240 North Cypress Avenue, in Santa Clara, California. Shayesteh maintains she and her sister provided equal funds for the down payment and that they both contributed to the mortgage, property taxes, and maintenance. She filed suit in 2015 to quiet title, among other things. Welch
I.
BACKGROUND AND PROCEDURAL FACTS
Shayesteh and Welch are sisters who immigrated to the United States in the late 1970s. Both women married.
Shayesteh eventually divorced her husband in 2009 after they were separated for many years. In the early 2000s, Shayesteh feared her husband would somehow take any money she had, even after they were separated, so she looked for a safe place to hide the money. She asked her sister Welch to safeguard or invest the money in real estate on Shayesteh‘s behalf. Shayesteh testified that she gave Welch $1,500 each month for safekeeping between 2001 and 2004. She also testified that she gave income tax refunds and child support payments to Welch, and that the funds added up to about $100,000.
In 2004, Welch and her husband Timothy2 purchased 240 North Cypress Avenue, Santa Clara, California as an investment property.3 Welch
Welch rented out the Cypress house beginning in March 2005. Shayesteh testified that the rent Welch collected did not cover the mortgage and other expenses, and Shayesteh paid Welch $300 per month, in cash, to make up the shortfall. Welch testified that there generally were no shortfalls, and when they occurred, she covered the difference from her own bank account.
Shayesteh moved into the Cypress house in October or November 2008. She testified that she paid $2,5205 per month, and this money was her share of the mortgage. She also testified that she paid all the property taxes on the home beginning in 2004. Welch testified that Shayesteh originally paid rent without being asked to do so, and they eventually signed a lease agreement. Shayesteh asserted her signature on the lease agreement was forged.
In November 2011, Welch moved into the Cypress house with Shayesteh. Shayesteh testified that she continued to contribute to the
Eventually, in 2015, Welch sued Shayesteh for unlawful detainer. In that proceeding, Shayesteh argued she was an actual owner, she had not been served with an eviction, and the signature on the lease was not hers. The court entered an eviction judgment against Shayesteh on July 1, 2015. It determined Welch was entitled to possession of the Cypress home.
Shayesteh filed a verified complaint against Welch on June 26, 2015. The complaint sought to quiet title on the Cypress property. It alleged the sisters had an agreement for joint, equal ownership of the property. The complaint also included claims for abuse of process, malicious prosecution, deed procured by undue influence, constructive trust, intentional infliction of emotional distress, breach of contract as a third party beneficiary, common counts - money had and received, tortious assault, premises liability, and fraud.
The case proceeded to trial.
The November 21, 2013 Recording
Welch filed a motion in limine to exclude an audio recording and transcript from a meeting that took place November 21, 2013. She argued the recording was made without her consent and was privileged because it was a settlement discussion between the parties. Shayesteh argued the recording was relevant to toll the statute of limitations for the fraud claim.
The trial court provisionally admitted Exhibits 44 and 55, the recording and a transcript of the recording, and it heard testimony about the meeting.
Shayesteh testified that they “were going through these meetings back and forth” and “this time” it looked like Welch “really want[ed] it to be really happening.” Shayesteh believed Welch wanted her to vacate the property and “wanted to give [me my] money—some money.” Shayesteh told the court she wanted Welch to pay her $250,000, but that day she agreed to a smaller amount because they were not going near that number. She said the meeting resulted in a completed deal.
Abbas testified that he participated in the meeting to help fix the problem between the sisters; his purpose was to make peace, and he hoped that Welch would write a check to Shayesteh. He also said the dollar amount the parties agreed to was part of a negotiation between the parties that may or may not have related to what Shayesteh actually paid. He said the November 2013 agreement was a second attempt to make peace between the sisters. He also explained that the agreement did not say anything about who had legal title to the property because Welch would not sign the document with more detail than it had.
When the court asked Shayesteh whether, if everyone had done what they were supposed to do according to the agreement that came out of that
Welch testified that the agreement was a 60-day notice, and if Welch gave Shayesteh back all the rent Shayesteh had paid, Shayesteh would move out. Welch said she agreed to it because she loved Shayesteh‘s children and did not want to cause problems. Welch did not pay the money because she never saw Shayesteh packing; she thought Shayesteh did not really want to move out, and after the meeting, Shayesteh did not ask to move out.
The court explained that whether Welch consented to the recording was an issue for the factfinder to determine, so it would not exclude the recording on that basis.
Then, in its statement of decision, the court found that Welch consented to the November 21, 2013 recording.
However, the court concluded the recording was inadmissible under
April 2014 Recording
Shayesteh also introduced a recording she made April 16, 2014. In that recording, Welch can be heard saying to Shayesteh, “[Y]ou have only $55,000 only with me. . . .” Although the court determined the recording was made illegally, it considered the recorded conversation for impeachment purposes.
Additional Evidence
At trial, Shayesteh and Welch offered evidence to explain where their contributions to the down payment came from. Shayesteh also introduced several documents she claimed were signed by Welch that indicated Welch had agreed to add Shayesteh‘s name to the deed. Welch denied signing the documents, and a handwriting expert could not verify the signatures were hers.
Family members and friends testified that it was their understanding that the Cypress property was owned by Shayesteh and Welch. None of them had seen any documentation to support this understanding. The court found the witnesses to be biased.
The court admitted a document provided to the County of Santa Clara regarding Medi-Cal benefits that Shayesteh signed in 2006 under penalty of perjury. It stated that she did not own any property.
The court found in favor of Welch on all asserted claims and entered judgment against Shayesteh.
Shayesteh timely appealed.
II.
DISCUSSION
We begin by commenting that we presume the judgment is correct, and it is the appellant‘s burden to affirmatively demonstrate error. (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.) An appeal is not a second trial, so to
The issue before us here is whether the court properly excluded evidence. We review the admissibility of evidence, including evidence excluded under
“Evidence that a person has, in compromise or from humanitarian motives, furnished or offered or promised to furnish money or any other thing, act, or service to another who has sustained or will sustain or claims that he or she has sustained or will sustain loss or damage, as well as any conduct or statements made in negotiation thereof, is inadmissible to prove his or her liability for the loss or damage or any part of it.” (
Shayesteh challenges the court‘s exclusion of four exhibits7 and focuses on its decision to exclude them under
The plain language of
Although the existence of a dispute at the time of an offer of compromise is not a prerequisite to applying
Abbas‘s testimony, like Shayesteh‘s, reflected the existence of a dispute. He testified that he participated in the meeting to fix a problem and make peace. This was his second attempt to make peace between his sisters, showing that their dispute predated the meeting. He also explained that the dollar amount they agreed to in the final agreement was negotiated and may or may not have related to money Shayesteh actually paid Welch, further indicating some sort of compromise and negotiation had occurred.
Their cousin‘s testimony similarly acknowledged a dispute had predated the November meeting because he believed the agreement resulting from the meeting settled everything.
Welch‘s testimony also supports the court‘s conclusion. She testified that she did not owe Shayesteh any money, but she agreed to pay Shayesteh because she loved Shayesteh‘s children and did not want to cause problems. Her testimony suggests she promised money from more humanitarian motives, understanding her sister would sustain the loss of housing. Although she paints her motives as humanitarian rather than as a
Taken together, the evidence indicates the meeting was held to address a conflict or dispute between the sisters or that the offer to pay came from some humanitarian motive regarding a future loss of housing. Therefore, the court‘s application of
The case law Shayesteh cites to support her position that the parties must be engaged in active litigation for
Preciado cites to Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465 (Price). In Price, the parties entered a series of loan agreements. The Prices conceded they never disputed the demands for payment or the amounts of money they owed, and they made payments of interest and principal without contesting their obligations. (Id. at 480.) On appeal, they argued the court should have excluded letters from the Prices’ attorney asking the bank to hold off on demanding payment to allow for a less catastrophic solution. (Id. at p. 481 & fn 3.) But the appellate court found nothing in the record to suggest the parties disputed the existence or even the terms of the loan; the letters themselves disclosed there was no dispute. (Id. at p. 481, fn. 3.)
Neither of these cases held that active litigation was necessary to find the existence of a dispute. The courts in those cases simply concluded the parties involved were “not engaged in discussions to settle a dispute about ownership.” (Preciado, supra, 139 Cal.App.4th at p. 326; see Price, at p. 481, fn. 3.) And although Shayesteh attempts to compare her situation to the one in Preciado, her attempt falls short. In her reply brief, Shayesteh argues there was no evidence of a dispute between her and Welch; the November 21, 2013 communication was a buy-out. But this claim is contradicted in the record, as we discussed ante. There was ample evidence for the court to conclude there was a “longstanding dispute” between the sisters that justified its application of
Shayesteh makes several additional arguments for why the court should have admitted the substance of the November 21, 2013 meeting, none of which has merit. She contends that an offer of compromise proposed as impeachment evidence would always swallow the prohibition on admitting the substance of settlement discussions, effectively voiding
Shayesteh argues the court acted inconsistently because it admitted the recording made in April 2014 without Welch‘s consent, but it excluded the consented-to recording from November 2013. However, this argument ignores the court‘s rationale and conflates consent with other requirements for admissibility. After explaining that the question of consent was one of fact, the court, in its factfinding capacity, concluded Welch consented to the November 21, 2013 recording. This meant the court could admit the recording as substantive evidence in the absence of some other rule precluding it. But because the court also concluded the communication was a settlement negotiation, it excluded the 2013 recording under
Shayesteh next argues that because Welch consented to being recorded, she should be estopped from “conceal[ing] the truth” of what she said during the conversation. But Welch‘s consent to being recorded did not waive her right to later object to the admission of the evidence in court under
Shayesteh testified that it seemed like Welch really wanted them to come to an agreement on November 21, 2013. And she believed Welch wanted to give her money in exchange for vacating the property. She told the court their final agreement that day was a completed deal, and if everyone had done what they were supposed to, there would be no more disputes about the Cypress property. Behrouz likewise told the court he expected Welch to write a check to Shayesteh and Shayesteh to move out. Even Welch intimated that she believed the agreement was a 60-day notice and if she returned rent to Shayesteh, Shayesteh would move out. Her lack of payment was not the result of insincerity on her part, but because she perceived Shayesteh‘s inaction to indicate Shayesteh did not want to follow through with their agreement. In other words, there is evidence to support the court‘s conclusion that this was not a situation where there was promissory fraud.9
The judgment is affirmed. Welch is entitled to her costs on appeal.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
DO, J.