Filed 11/6/13 Ulllman v. Hollywood Dell First Mort. Investors CA2/4 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION FOUR 

JEFFREY ULLMAN, 

 Plaintiff and Appellant, 

 v. 

HOLLYWOOD DELL FIRST MORTGAGE 

INVESTORS, LP et al., 

 Defendants and Respondents. 

 B246603 

 (Los Angeles County 

 Super. Ct. No. BC442576) 

 APPEAL from a judgment of the Superior Court of Los Angeles County, Victor E. 

Chavez, Judge. Affirmed as modified. 

 Leonard, Dicker & Schreiber, Richard C. Leonard, and Steven A. Schuman for 

Plaintiff and Appellant. 

 Songstad Randall Coffee & Humphrey, L. Allan Songstad, Jr., and Linda D. Pasin 

for Defendants and Respondents. 
2 

 Following a bench trial on plaintiff and appellant Jeffrey Ullman’s complaint for 

declaratory relief and fraudulent conveyance, the superior court entered judgment for 

defendants and respondents Hollywood Dell First Mortgage Investors, LP (Hollywood 

Dell), and Carl Lindros as “Trustee of the Carl Lindros IRA”1 (jointly, defendants). In 

this appeal from the judgment, Ullman contends the trial court erred in denying 

declaratory relief and dismissing the fraudulent conveyance claim. For the reasons that 

follow, we affirm the dismissal of the fraudulent transfer claim, but modify the judgment 

to reflect that the dismissal is with prejudice. The judgment, as modified, is affirmed. 

BACKGROUND 

 In a prior action, Ullman sued his former business partner, Rebecca Richards, for 

dissolution of partnership and other claims. (Ullman v. Richards (Super. Ct. L.A. 

County, 2009, No. BC392003).) After obtaining a $1.2 million judgment against 

Rebecca, Ullman recorded an abstract of judgment on April 10, 2009.2 Rebecca’s 

 1 We note that Lindros answered the complaint as “Carl Lindros, Trustee of the 

Lindros Family Trust dated December 17, 1982.” 

2 “Except as otherwise provided by statute, a judgment lien on real property is 

created under this section by recording an abstract of a money judgment with the county 

recorder.” (Code Civ. Proc., § 697.310, subd. (a).) 

 “Except as provided in Section 704.950: [¶] (a) A judgment lien on real property 

attaches to all interests in real property in the county where the lien is created (whether 

present or future, vested or contingent, legal or equitable) that are subject to enforcement 

of the money judgment against the judgment debtor pursuant to Article 1 (commencing 

with Section 695.010) of Chapter 1 at the time the lien was created, but does not reach 

rental payments, a leasehold estate with an unexpired term of less than two years, the 

interest of a beneficiary under a trust, or real property that is subject to an attachment lien 

in favor of the creditor and was transferred before judgment. [¶] (b) If any interest in 

real property in the county on which a judgment lien could be created under subdivision 

(a) is acquired after the judgment lien was created, the judgment lien attaches to such 

interest at the time it is acquired.” (Code Civ. Proc., § 697.340.) 
3 

husband, Rob Richards, was not a party to that action,3 but Ullman contends that his 

judgment lien attached to the interests of both spouses in all community real property 

located in this county.4 

 In the present action, Ullman seeks declaratory relief to establish that as to Rob’s 

former 25 percent community property interest (Rob’s interest) in certain real properties 

(properties),5 Ullman’s judgment lien is not subject to defendant’s first and second deeds 

of trust, even though they were recorded first in 2008. Although Ullman concedes that 

his judgment lien, which was recorded in 2009, is subject to the deeds of trust with regard 

to Rebecca’s 75 percent interest in the properties, he argues that as to Rob’s interest, the 

usual rule of priority based on the date of recording does not apply. Ullman asserts that 

because of an error (which we will explain) that occurred when Hollywood Dell’s loan 

was issued, neither Hollywood Dell’s first deed of trust nor Lindros’s second deed of 

trust attached to Rob’s interest and, therefore, Ullman’s judgment lien was the first and 

only lien that attached to Rob’s interest. 

 3 Neither Rebecca nor Rob is a party to this action. Because they share the same 

last name, we refer to them by their first names with no disrespect intended. 

4 “‘Debt’ means an obligation incurred by a married person before or during 

marriage, whether based on contract, tort, or otherwise.” (Fam. Code, § 902.) 

 “Except as otherwise expressly provided by statute, the community estate is liable 

for a debt incurred by either spouse before or during marriage, regardless of which 

spouse has the management and control of the property and regardless of whether one or 

both spouses are parties to the debt or to a judgment for the debt.” (Fam. Code, § 910, 

subd. (a).) 

5 The subject properties are “a large house located at 2110 Alcyona Drive, 

Los Angeles, California (the ‘Alcyona Property’) and two adjacent undeveloped lots in 

the Hollywood Hills (the ‘Vine St. Lots’).” 

 The trial court did not determine whether Rob had an ownership interest in the 

subject properties when the loans were issued and, if so, the nature or extent of that 

interest. Accordingly, we express no opinion on that point and, like the trial court, 

assume, for purposes of discussion only, that Rob had a 25 percent community property 

interest in the subject properties when the deeds of trust were signed by Rebecca. 
4 

 Because the properties were sold at a nonjudicial foreclosure sale over three years 

ago, it is unclear what, if any, relief may be obtained by Ullman at this late date. In any 

event, in the following sections we discuss (1) the significant dates and events, 

(2) Ullman’s and (3) defendants’ contentions at trial, (4) the trial court’s ruling, 

(5) Ullman’s motion to set aside that ruling, and (6) the judgment for defendants. 

I. Significant Dates and Events 

 In 2007, Rebecca and Rob acquired the subject properties as joint tenants. Later 

that year, Rebecca and Rob granted Ullman, Rebecca’s business partner, a 50 percent 

interest in the properties, which Rebecca intended to renovate. 

 In 2008, Rebecca sought to refinance the properties with a new lender, Hollywood 

Dell. Hollywood Dell agreed to make a $4.1 million loan secured by a first deed of trust 

to the property, provided certain conditions were met. The conditions, as specified in the 

instructions to First American Title Company (FATCO or escrow company), required 

FATCO to: (1) prepare and record “Quit Claim Deeds duly executed by Rob Richards, 

husband of Rebecca L. Richards, and Jeffrey C. Ullman Separate Property Trust”; 

(2) obtain a lender’s title insurance policy; and (3) prepare and record a $4.1 million first 

deed of trust to the properties signed by “Rebecca L. Richards, a married woman as 

her sole and separate property.” 

 In partial satisfaction of the loan requirements, (1) Ullman transferred his interest 

in the properties to Rebecca,6 and (2) First American Title Insurance Company (FATICO 

or title insurance company) issued a lender’s title insurance policy that guaranteed and 

insured that Rebecca had clear title and was the sole owner of the properties. 

 However, due to an error by the escrow company, the $4.1 million loan was issued 

to Rebecca, as sole borrower, without the required quitclaim deeds from Rob. 

 6 Rebecca and Ullman signed and recorded a grant deed on April 18, 2008, by 

which Rebecca (as to an undivided 50 percent interest) and Ullman (as to an undivided 

50 percent interest) granted title to the properties to “Rebecca L. Richards, a married 

woman as her sole and separate property.” 
5 

Hollywood Dell’s first deed of trust, which Rebecca had signed as “Rebecca L. Richards, 

a married woman as her sole and separate property,” was recorded on April 30, 2008. 

 In August 2008, Rebecca obtained a $450,000 loan from Lindros, which was 

secured by a second deed of trust that was recorded on September 5, 2008. FATICO 

issued a lender’s title insurance policy that guaranteed and insured that Rebecca had clear 

title and was the sole owner of the properties. 

 On March 24, 2009, Ullman obtained a $1.2 million judgment against Rebecca in 

the partnership action. On April 10, 2009, Ullman recorded the abstract of judgment. 

 By April 2009, Rebecca had defaulted on the loans from Hollywood Dell and 

Lindros. On April 30, 2009, Hollywood Dell began nonjudicial foreclosure proceedings 

against the properties. 

 During the foreclosure process, it came to light that the escrow company had 

failed to obtain and record the required quitclaim deeds from Rob. Because the title 

insurance company had guaranteed that Rebecca was the sole owner of the properties, 

Hollywood Dell and Lindros sued the title insurance company for breach of contract and 

breach of the implied covenant of good faith and fair dealing. (Hollywood Dell First 

Mortgage Investors, L.P. et al. v. First American Title Insurance Company et al. (Super. 

Ct. Santa Barbara County, 2010, No. BC1338788) (title insurance action).) They alleged 

in their complaint that because Rebecca “was and is not the only record title holder,” they 

did not have a “true security interest in the propert[ies]” and could “not possibly foreclose 

on the propert[ies].” 

 In June 2009, Rob filed a bankruptcy action. In May 2010, the bankruptcy court 

filed an order “abandoning any interest Rob may have had in the Properties.” On 

May 20, 2010, Rob executed the grant deeds that transferred his interest in the properties 

to Rebecca. 

 On July 28, 2010, Ullman filed the present action against Hollywood Dell and 

Lindros for declaratory relief (seeking to establish the seniority of his judgment lien as to 

Rob’s interest in the properties) and fraudulent conveyance (seeking to set aside the May 

2010 transfer of Rob’s interest in the properties to Rebecca). 
6 

 In August 2010, Hollywood Dell and Lindros settled the title insurance action. In 

the settlement, Hollywood Dell and Lindros received $850,000 plus a defense and 

indemnity in this action. The settlement agreement stated in relevant part that the 

$850,000 payment “includes payment for losses incurred by Hollywood Dell and Lindros 

IRA for being unable to foreclose their respective deeds of trust against the Subject 

Properties through approximately mid October 2010, when it is anticipated that the new 

foreclosure sale date will be scheduled on the $4.1 million deed of trust.” 

 On October 28, 2010, Hollywood Dell acquired the properties by making a $2.5 

million credit bid at the trustee’s foreclosure sale. 

 On November 6, 2012, the superior court conducted a one-day bench trial on 

Ullman’s complaint in this action for declaratory relief and fraudulent conveyance. In 

addition to the above facts, which were presented primarily by joint stipulation, the trial 

court heard Rob’s testimony that: (1) he had no beneficial interest in the properties and 

“had absolutely no participation in the real estate whatsoever”; (2) he had no objections 

to the loans taken by Rebecca; (3) when Rebecca obtained the loans from Hollywood 

Dell and Lindros, he believed he “had signed quitclaims on everything and the properties 

were the sole property of Rebecca Richards as an individual”; (4) it was his “intent to be 

off of all the deeds”; and (5) he did not learn he was still on title to the properties until 

“after Mr. Ullman initiated all this litigation.” 

II. Ullman’s Contentions 

 At trial, Ullman contended that he was entitled to declaratory relief based on two 

theories. First, because Rob still had an interest in the properties when Rebecca signed 

the deeds of trust, Rebecca’s signature alone was insufficient to encumber Rob’s interest. 

(Fam. Code, § 1102.)7 When Ullman recorded his abstract of judgment in 2009, his lien 

 7 “Except as provided in Sections 761 and 1103, either spouse has the management 

and control of the community real property, whether acquired prior to or on or after 

January 1, 1975, but 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 
7 

attached to Rob’s interest in the properties, and remained affixed to Rob’s interest when 

it was transferred to Rebecca in May 2010. (Code Civ. Proc., § 697.390.)8 

 Ullman also argued he was entitled to declaratory relief under the doctrine of 

judicial estoppel. Ullman contended defendants were bound by their concession in the 

title insurance action that, due to the existence of Rob’s interest in the properties, they did 

not have a “true security interest in the propert[ies]” and could “not possibly foreclose on 

the propert[ies].” 

 Alternatively, Ullman contended the May 2010 transfer of Rob’s interest to 

Rebecca should be set aside as a fraudulent conveyance. Ullman argued that “because 

Rob Richards was in bankruptcy at the time of the transfer, was admittedly insolvent, and 

received no consideration for the transfer, Rob’s transfer to Rebecca was a fraudulent 

conveyance and Plaintiff has the right to set it aside.” 

III. Defendants’ Contentions 

A. Declaratory Relief 

 In opposition to Ullman’s claim for declaratory relief, defendants argued their 

deeds of trust were senior to the judgment lien for two main reasons. 

 First, they argued that Rebecca was authorized to encumber Rob’s interest, but in 

any event, an unauthorized encumbrance of community property is not void, but merely 

voidable at the request of the other spouse or his or her representative. Because Rob was 

aware of and had acquiesced to the deeds of trust, the trustee’s sale was valid as to Rob’s 

interest in the properties. (Citing Clar v. Cacciola (1987) 193 Cal.App.3d 1032, 1036-

1037 (Clar); Miller v. Johnston (1969) 270 Cal.App.2d 289, 300, fn. 6.) 

 

therein is leased for a longer period than one year, or is sold, conveyed, or encumbered.” 

(Fam. Code, § 1102, subd. (a).) 

8 Code of Civil Procedure section 697.390 provides in relevant part: “If an interest 

in real property that is subject to a judgment lien is transferred or encumbered without 

satisfying or extinguishing the judgment lien: [¶] (a) The interest transferred or 

encumbered remains subject to a judgment lien created pursuant to Section 697.310 in the 

same amount as if the interest had not been transferred or encumbered.” 
8 

 Second, defendants argued that Ullman was barred, under the doctrine of judicial 

estoppel, from taking unfair advantage of the escrow company’s error in failing to obtain 

and record Rob’s quitclaim deed before the $4.1 million loan was issued. Defendants 

contended that as Rebecca’s business partner with respect to the properties, Ullman was 

privy to the lender’s requirement that all other interests must be cleared from title before 

the $4.1 million loan would issue. And because Ullman had transferred his own interest 

to Rebecca in accordance with the lender’s instructions, he should be charged with the 

knowledge that Hollywood Dell would not have issued the loan based on the signature of 

only one spouse if it had known of the escrow company’s error in failing to obtain and 

record Rob’s quitclaim deed. 

B. Fraudulent Conveyance

 Defendants argued the transfer of Rob’s interest in the properties to Rebecca 

should not be set aside as fraudulent for the following reasons. First, the claim must fail 

because of Ullman’s failure to join Rebecca, a necessary party. In a claim for fraudulent 

transfer, the transferee is a necessary party who must be given an opportunity to defend 

the transfer. (Citing Diamond Heights Village Assn., Inc. v. Financial Freedom Senior 

Funding Corp. (2011) 196 Cal.App.4th 290, 304-305.) 

 Second, the transfer did not place Rob’s interest beyond Ullman’s reach. If, as 

Ullman contends, his judgment lien was the senior lien, the transferred interest remained 

subject to that lien. (Citing Code Civ. Proc., § 697.390 [the transferred interest remains 

subject to any lien against the property].) 

 Third, nothing of value is conveyed by the transfer of real property that is fully 

encumbered by a valid lien. The properties, which were fully encumbered by the deeds 

of trust, had no equity. Accordingly, the transfer of Rob’s interest was not fraudulent 

because nothing of value was conveyed through the transfer. 
9 

IV. The Trial Court’s November 15, 2012 Ruling 

 After taking the matter under submission, the superior court issued its 

November 15, 2012 ruling in favor of Hollywood Dell and Lindros. The court stated in 

relevant part: “As to the first cause of action for Declaratory Relief, plaintiff seeks a 

determination that the Abstract of Judgment is senior to the liens, if any, of Lindros and 

Hollywood Dell as to Rob’s 25% interest in the property. [¶] The first cause of action 

for Declaratory Relief is based upon allegations that as of April 18, 2008, title for the 

properties was in the name of [Rebecca] as to 75% and [Rob] as to the remaining 25%. 

Plaintiff’s claim of a superior lien fails in that defendants’ deeds of trust encumbered 

100% of the property. Plaintiff is not entitled to declaratory relief.” 

 In rejecting Ullman’s fraudulent conveyance claim, the court stated in relevant 

part: “As to the second cause of action for Fraudulent Conveyance, plaintiff moves for 

an order setting aside the transfer of Rob’s 25% interest in the property, and instead 

directing that the sheriff sell those interests at public auction, with the proceeds to be 

applied to the judgment. [¶] The second cause of action for Fraudulent Conveyance fails 

in that [Ullman] dismissed the transferee to the alleged fraudulent transfer. At trial, 

[Rob] testified that while he might be on title to the properties prior to defendant making 

the loans, he claimed no beneficial interest in the property and was under the impression 

the property belonged to [Rebecca]. [Rob] attempted to remove himself from the title 

and executed quitclaim deeds to [Rebecca]. His belief was that he was thus removed 

from title to the property. [Rob] never claimed an interest in the property. It was his 

belief that it belonged to [Rebecca]. [¶] Here, the alleged fraudulent transferee to the 

May 2011 transfer was [Rebecca]. Therefore, she is a necessary party to [Ullman’s] 

second cause of action for fraudulent conveyance; she is an indispensable party to 

Plaintiff’s second cause of action. [Rebecca’s] rights would be necessarily affected by 

any judgment setting aside the May 2011 transfer because any such judgment sets aside a 

conveyance of real property to her. [Ullman] dismissed [Rebecca] from this action on 

February 23, 2011. Therefore, because [Ullman] has failed to include all necessary, 
10 

indispensable parties, namely [Rebecca], [Ullman’s] second cause of action for 

fraudulent conveyance fails as a matter of law.” 

V. Ullman’s Motion to Set Aside the November 15, 2012 Ruling 

 Ullman moved to set aside the November 15, 2012 ruling as legally incorrect. 

Ullman requested a ruling on his claim for judicial estoppel, arguing that defendants were 

bound by their position in the title insurance action that they did not have a valid lien as a 

result of Rob’s interest in the properties. Ullman also requested a ruling on his claim 

that, under Code of Civil Procedure section 697.340, subdivision (b), his judgment lien 

was the first lien to attach to Rob’s interest in the properties and, under section 697.390, 

remained attached to any interest transferred from Rob to Rebecca. 

 As to the fraudulent conveyance claim, Ullman requested findings that: 

(1) Rebecca was not an indispensable party because she no longer owned the properties 

and, therefore, her rights would not be negatively impacted by any judgment in this case; 

(2) Hollywood Dell and Lindros “failed to meet their burden of proof with respect to 

[Rebecca’s] role”; and (3) Hollywood Dell and Lindros “failed to raise the issue of 

[Rebecca’s] role as a ‘necessary’ party prior to trial and have thus waived it.” 

VI. Judgment for Hollywood Dell and Lindros 

 After the trial court denied Ullman’s motion to set aside its ruling, it entered 

judgment for defendants on December 6, 2012. The judgment stated in relevant part: 

“Judgment is entered in favor of Defendants and against Plaintiff on the First Cause of 

Action for Declaratory relief alleged in Plaintiff’s Complaint. Defendants’ deeds of trust 

are prior to and senior to the abstract of judgment recorded by Plaintiff.” “The Second 

Cause of Action for Fraudulent Conveyance is dismissed without prejudice as the claim 

failed to include an indispensable party, i.e., Rebecca Richards.” This timely appeal 

followed. 
11 

DISCUSSION 

I. No Statement of Decision Was Required

 Ullman contends the trial court failed to issue a statement of decision that 

explained: (1) why Rebecca was a necessary party given that she no longer owned the 

properties; and (2) why defendants were not bound under the doctrine of judicial estoppel 

by their position in the title insurance action that they did not have a valid lien because of 

Rob’s interest in the properties. Ullman contends the trial court “completely ignored” 

these issues in its “statement of decision,” and that the “failure to rule [on the issue of 

judicial estoppel] constitutes reversible error per se, unless this Court of Appeal finds that 

as a matter of law, the trial court had no choice but to reject judicial estoppel.” 

 Defendants, on the other hand, argue that no statement of decision was required. 

Where, as here, the trial is completed in a day or less, a request for a statement of 

decision must be made before the matter is submitted for decision. (Code Civ. Proc., 

§ 632.)9 Ullman’s motion to set aside the November 15, 2012 ruling was not a timely 

request for a statement of decision because it was not made before the matter was 

submitted. 

 We conclude defendants are correct that Ullman did not timely request a statement 

of decision and, thus, no statement of decision was required. Because a statement of 

decision was not required, the trial court had no obligation to provide the requested 

explanations. 

 9 Code of Civil Procedure section 632 provides in relevant part: “In superior courts, 

upon the trial of a question of fact by the court, written findings of fact and conclusions 

of law shall not be required. 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 

trial upon the request of any party appearing at the trial. The request must be made 

within 10 days after the court announces a tentative decision unless the trial is concluded 

within one calendar day or in less than eight hours over more than one day in which event 

the request must be made prior to the submission of the matter for decision. The request 

for a statement of decision shall specify those controverted issues as to which the party is 

requesting a statement of decision. After a party has requested the statement, any party 

may make proposals as to the content of the statement of decision.” 
12 

 “When no statement of decision is requested and issued, we imply all findings 

necessary to support the judgment. (In re Marriage of Cohn (1998) 65 Cal.App.4th 923, 

928.)” (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) In 

the absence of specific findings in favor of a losing plaintiff, the appellate court will 

presume the trial court found the plaintiff’s evidence was insufficient to carry the burden 

of proof. Code of Civil Procedure section 634,10 which applies when the court is 

required but fails to provide a statement of decision, does not apply here. 

II. Ullman’s Judgment Lien Is Subject to the Deeds of Trust 

 In rejecting Ullman’s claim for declaratory relief, the trial court stated that 

“Defendants’ deeds of trust are prior to and senior to the abstract of judgment recorded 

by Plaintiff.” Ullman contends this ruling was erroneous as a matter of law for two 

reasons, both of which involve the escrow company’s error in failing to obtain and record 

Rob’s quitclaim deed before the $4.1 million loan was issued in Rebecca’s name alone: 

 (1) Because of the escrow company’s error, Rob still had an interest in the 

property and therefore Rebecca’s signature alone was insufficient to encumber Rob’s 

interest. (Fam. Code, § 1102.) Accordingly, Ullman’s judgment lien was the first lien 

that attached to Rob’s interest and remained attached to that interest when it was 

transferred to Rebecca in May 2012. 

 (2) Defendants, having argued in the title insurance action that foreclosure was 

impossible due to the escrow company’s failure to obtain and record Rob’s quitclaim 

deed, were bound by that position under the doctrine of judicial estoppel. 

 We conclude both contentions lack merit. 

 10 Code of Civil Procedure section 634 provides: “When a statement of decision 

does not resolve a controverted issue, or if the statement is ambiguous and the record 

shows that the omission or ambiguity was brought to the attention of the trial court either 

prior to entry of judgment or in conjunction with a motion under Section 657 [motion for 

new trial] or 663 [motion to set aside judgment], it shall not be inferred on appeal or upon 

a motion under Section 657 or 663 that the trial court decided in favor of the prevailing 

party as to those facts or on that issue.” 
13 

A. Ullman Lacked Standing to Challenge Rebecca’s Authority to Encumber 

Rob’s Interest 

 By failing to obtain Rob’s quitclaim deed, the escrow company failed to eliminate 

the possibility that Rob could object under Family Code section 1102 to Rebecca’s 

authority to encumber his interest. “The cases interpreting [former Civil Code] section 

5127[, now found in Family Code section 1102,] and its statutory predecessors have held 

that unauthorized gifts, sales or encumbrances of community property are not void, but 

voidable, and this only at the instance of the other spouse or his or her personal 

representative. (Harris v. Harris (1962) 57 Cal.2d 367, 369-370; Head v. Crawford

(1984) 156 Cal.App.3d 11, 17-18; Andrade Development Co. v. Martin (1982) 138 

Cal.App.3d 330, 333-335 and fn. 2 (Andrade); Mitchell v. American Reserve Ins. Co. 

(1980) 110 Cal.App.3d 220, 223 (Mitchell); Gantner v. Johnson (1969) 274 Cal.App.2d 

869, 876-877; Horton v. Horton (1953) 115 Cal.App.2d 360, 364.)” (Clar, supra, 193 

Cal.App.3d at p. 1036.) 

 Rob, the only person with standing to object to Rebecca’s authority under Family 

Code section 1102, failed to do so.11 Family Code section 1102 was not intended to 

protect creditors such as Ullman, who had no standing to object that Rebecca was 

unauthorized to encumber Rob’s interest. Family Code section 1102 “was designed to 

protect a spouse from the unauthorized alienation or encumbering of marital property by 

the other spouse; it has never been interpreted in such a way as to provide a means 

 11 The record is devoid of any evidence that Rob objected to the deeds of trust or the 

trustee’s sale of the properties. On the contrary, Rob testified that he had no beneficial 

interest in the properties, which he viewed as Rebecca’s sole property. Rob stated that he 

believed he “had signed quitclaims on everything,” it was his “intent to be off of all the 

deeds,” he had no objections to the loans taken by Rebecca, and he did not learn of the 

error regarding the deeds to the properties until “after Mr. Ullman initiated all this 

litigation.” 
14 

whereby a third party creditor of the married couple may challenge and void instruments 

signed by only one of the spouses.” (Clar, supra, 193 Cal.App.3d at p. 1037.)12 

B. Ullman’s Lien Is Subject to the Deeds of Trust Under the Theory of 

Equitable Estoppel 

 We also conclude that because Ullman had constructive if not actual knowledge 

that Hollywood Dell was relying on 100 percent of the properties as security for the $4.1 

million loan, his judgment lien is subject to the deeds of trust under the theory of 

equitable estoppel. (See 5 Miller & Starr, Cal. Real Estate (3d ed. 2009) § 11:59 [“A title 

or lien of a subsequent party is subject to prior unrecorded interests in the property of 

which he has actual knowledge or notice, even though he or she records the deed or 

security instrument first.”].) Ullman held a 50 percent interest in the properties that he 

transferred to Rebecca to facilitate the loan from Hollywood Dell. As Rebecca’s business 

partner, Ullman was privy to the loan requirements and knew or reasonably should have 

known the loan was contingent on the escrow company’s receipt and recording of Rob’s 

quitclaim deed. 

 12 Two of the cases cited in Clar, supra, 193 Cal.App.3d at page 1036—Mitchell, 

supra, 110 Cal.App.3d 220, and Andrade, supra, 138 Cal.App.3d 330—were analyzed in 

Droeger v. Friedman, Sloan & Ross (1991) 54 Cal.3d 26. Under Mitchell, the 

nonconsenting spouse may invalidate the transfer as to the nonconsenting spouse’s onehalf interest only. Under Andrade, the nonconsenting spouse may invalidate the transfer 

entirely. In Droeger, the Supreme Court held that the Andrade line of cases was correct. 

 In response to the Supreme Court’s decision in Droeger, the Legislature enacted 

former sections 4372 and 4373 of the Civil Code (now found in Fam. Code, §§ 2033 & 

2034), which allow a spouse to encumber his or her interest in community real property 

to pay attorney fees and costs in a proceeding for dissolution of marriage, nullification of 

marriage, or legal separation of the parties. (See In re Marriage of Turkanis & Price 

(2013) 213 Cal.App.4th 332, 346-347.) 

 Notwithstanding these legislative amendments and judicial decisions, the appellate 

court’s decision in Clar, supra, 193 Cal.App.3d at page 1036—that former Civil Code 

section 5127 (now found in Fam. Code, § 1102) was not intended to protect creditors 

such as Ullman—remains good law. 
15 

 The evidence is overwhelming that, but for the unforeseen errors by the escrow 

and title companies, Rob’s quitclaim deed would have been recorded before the close of 

escrow, such that the deeds of trust would have indisputably attached to Rebecca’s 100 

percent interest in the properties. It was only through inadvertence that Rob’s quitclaim 

deed went unrecorded, which created the discrepancy that Ullman relies upon to 

invalidate the deeds of trust as to Rob’s interest. 

C. Defendants Did Not Take Inconsistent Positions 

 Ullman argues that under the doctrine of judicial estoppel, defendants are bound 

by their position in the title insurance action that, because of Rob’s interest in the 

properties, foreclosure was impossible. We conclude the contention lacks merit. 

 “Judicial estoppel, sometimes referred to as the doctrine of preclusion of 

inconsistent positions, ‘“prevents a party from ‘asserting a position in a legal proceeding 

that is contrary to a position previously taken in the same or some earlier proceeding.’”’ 

(Daar & Newman v. VRL International (2005) 129 Cal.App.4th 482, 490-491 (Daar & 

Newman).) The dual purposes for applying this doctrine are ‘“‘to maintain the integrity 

of the judicial system and to protect parties from opponents’ unfair strategies.’”’ 

(Aguilar v. Lerner (2004) 32 Cal.4th 974, 986.) Judicial estoppel ‘is intended to prevent 

litigants from “‘“‘playing “fast and loose with the courts.”’”’ [Citation.]” [Citation.] It 

is an “‘extraordinary remed[y] to be invoked when a party’s inconsistent behavior will 

otherwise result in a miscarriage of justice.’”’ (Daar & Newman, supra, at pp. 490-

491.)” (Levin v. Ligon (2006) 140 Cal.App.4th 1456, 1468.) The trial court’s ruling on 

the judicial estoppel claim is reviewed under the abuse of discretion standard. (Ibid.) 

 We conclude the positions taken by defendants in the present action and the prior 

title insurance action were not inconsistent. The language used by defendants in the prior 

action must be viewed in light of the existing circumstances. After defendants discovered 

the escrow company’s failure to obtain and record Rob’s quitclaim deed, they sued the 

title insurance company for breach of contract because, contrary to the provisions of the 

policy, Rebecca’s title was vulnerable to a possible objection by Rob under Family Code 
16 

section 1102 that she was unauthorized to encumber his interest. But after Rob’s grant 

deeds were recorded, Hollywood Dell proceeded with the foreclosure proceedings and 

acquired the properties at the October 2010 trustee’s sale. By the time this action was 

tried, defendants were no longer at risk of an objection under Family Code section 1102, 

because Rob had transferred his interest to Rebecca and waived any objection to the 

foreclosure sale. 

 Given the changed circumstances from August 2009, when the title insurance 

action was filed, to November 2012, when this case was tried, it was well within the trial 

court’s discretion to reject Ullman’s judicial estoppel claim. Justice would not have been 

served by forcing defendants to argue that foreclosure was impossible when, in fact, the 

properties had been sold at the October 2010 foreclosure sale. Ullman has failed to 

establish an abuse of discretion. 

III. The Fraudulent Transfer Claim Is Moot 

Ullman challenges the trial court’s dismissal of the fraudulent conveyance claim 

without prejudice based on the failure to join an indispensible party. In light of our 

determination that Ullman’s judgment lien is subject to the deeds of trust under the 

doctrine of equitable estoppel, the validity of the May 2010 transfer is a moot issue. 

Because the claim is moot, the judgment is modified to indicate that the dismissal is with 

prejudice. 
17 

DISPOSITION 

 The judgment is modified to indicate that the dismissal of the fraudulent transfer 

claim is a dismissal with prejudice. As modified, the judgment is affirmed. Defendants 

are entitled to their costs on appeal. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

 SUZUKAWA, J. 

We concur: 

 EPSTEIN, P. J. 

 WILLHITE, J.