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Filed 7/12/13 Dudley v. Faustine CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Nevada)

----

REBECCA DUDLEY,

Plaintiff and Appellant,

v.

WILLIAM P. FAUSTINE, Individually and as 

Trustee, etc., et al.,

Defendants and Respondents.

C066469

(Super. Ct. No. T09/3745C)

Plaintiff Rebecca Dudley sought to recover possession of real property her 

deceased parents had jointly owned more than 50 years ago. In her second amended 

complaint, she alleged her father forged a quitclaim deed in 1960 to transfer title to 

himself in violation of a divorce decree that had awarded the property to her mother, and 

then in 1966 fraudulently sold the property as his separate property. She asserted that as 

the sole heir of her mother, she was entitled to the property under the laws of intestate 

succession.
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The trial court sustained for a second time a demurrer filed by the property‟s 

current owners, defendants William and Cathy Faustine, and it did so without granting 

leave to amend. Appearing before us pro per, plaintiff claims the trial court erred in 

sustaining the demurrer. She asserts she pleaded sufficient facts to state a cause of action 

and that her complaint is not time barred. She also claims the court committed various 

procedural errors.

We disagree with plaintiff‟s contentions and affirm the trial court‟s judgment. We 

conclude she is estopped from recovering on her cause of action by laches.

FACTS

Because this is an appeal following a successful demurrer, we accept as true all 

facts properly pleaded in plaintiff‟s complaint. We also incorporate any facts of which 

we may take judicial notice. (Gu v. BMW of North America, LLC (2005) 132 

Cal.App.4th 195, 200.)

In 1959, plaintiff‟s parents, Robert and Genevieve Dudley, purchased real 

property in Truckee, Nevada County, near Donner Lake. The property has a cabin on it.

Genevieve later that year petitioned for divorce. On October 9, 1959, the trial 

court entered an interlocutory order dividing the couple‟s property. Among other 

matters, the court awarded to Genevieve the “cabin at Donner Lake.” 

However, by a deed dated and recorded in 1960, Genevieve quitclaimed her 

interest in the property to Robert. Later that same year, the trial court entered the final 

judgment of divorce, and it incorporated the interlocutory order into its judgment. It 

made no modification for Genevieve‟s transfer of the property to Robert. A copy of the 

judgment was recorded in Nevada County in 1964. 

Plaintiff alleges that despite the quitclaim deed to Robert, Genevieve and Robert 

acted as if Genevieve still owned the property. Genevieve continued to pay taxes on the 

property after the quitclaim deed was filed up until 1966. In a 1961 affidavit in support 
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of a motion to modify the divorce decree, Robert stated Genevieve had received “a cabin 

located at Donner Lake and the equity was approximately $3500.00.” 

In 1966, however, Robert conveyed ownership of the property to Laurence and 

Ruth Cadwell. The grant deed documenting this transaction stated Robert had held the 

property as his separate property. 

In 2004, the Cadwells‟ successors in interest conveyed the property to defendants. 

Genevieve died in 1979. Robert died in 2007. Plaintiff alleges she did not learn 

about the property and its history until after her father‟s death. 

Plaintiff sought to obtain title to the property. She filed her original complaint on 

October 5, 2009. In that complaint for declaratory relief, plaintiff alleged the final 

divorce judgment confirmed ownership of the property on Genevieve and superseded the 

quitclaim deed. She sought a declaration that the property belonged to her as 

Genevieve‟s sole heir. 

Before defendants filed a responsive pleading, plaintiff filed her first amended 

complaint. In that complaint, plaintiff alleged causes of action for fraud, cancellation of 

documents, quiet title, and declaratory relief. She continued to assert the final divorce 

judgment vested title in Genevieve, and she also alleged Robert‟s conveyance of the 

property in 1966 to the Cadwells was fraud. In addition, she alleged the existence of a 

“transfer deed” that had conveyed title in the property from Robert back to Genevieve. 

She sought the cancellation of all documents on which defendants based their claim of 

title.

Defendants filed a demurrer. They argued the alleged facts demonstrated they 

were bona fide purchasers who acquired the property without notice of any interest in the 

property by Genevieve. They claimed Genevieve could not have obtained title to the 

property under the divorce judgment. The interlocutory divorce order and the final 

divorce judgment could not convey title to Genevieve by operation of law, and neither 

document satisfied the statutory requirements to qualify as a written conveyance of 
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property. Defendants also claimed the complaint was barred by the applicable statutes of 

limitations and laches.

The trial court sustained the demurrer with leave to amend. It ruled the divorce 

judgment did not convey title, and, in light of the quitclaim deed, plaintiff could not state 

a claim to the property via Genevieve. Even if she could, any such claim would be 

barred by the statute of limitations and laches. However, the court stated her claim 

regarding the alleged deed that transferred title from Robert back to Genevieve lacked 

specificity, and it granted leave to amend on that basis. To provide the needed 

specificity, the court ordered plaintiff to attach to her new pleading a copy of the alleged 

deed. 

Plaintiff‟s second amended complaint continued to allege causes of action for 

fraud, quiet title, cancellation of documents, and declaratory relief. Contrary to the trial 

court‟s instruction, however, plaintiff did not attach a copy of the deed she had claimed in 

her first amended complaint transferred the property from Robert back to Genevieve. 

Instead, she alleged that while searching for documents, she saw on a computer screen in 

the Nevada County Recorder‟s Office an electronic copy of a warranty deed by which 

Robert conveyed his interest in the property to Genevieve. This deed was allegedly dated 

later than the quitclaim deed from Genevieve to Robert. She allegedly saw this deed 

shortly before the recorder‟s office closed for the day. She did not provide any other 

identifying information concerning this deed or allege that whatever she saw had been 

officially recorded. 

Also in her second amended complaint, plaintiff raised a new factual allegation. 

She no longer asserted title to the property passed to Genevieve through the divorce 

decrees. Instead, she asserted for the first time that the 1960 quitclaim deed from 

Genevieve to Robert was a forgery, and that it thus voided the chain of title derived from 

it. 
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To support her forgery allegation, plaintiff hired Michael Nattenberg, allegedly “a 

person qualified as a[n] examiner of questioned documents,” for an opinion on whether 

the quitclaim deed was forged. Plaintiff attached as an exhibit to her second amended 

complaint a letter from Nattenberg wherein he summarized his review of the deed. He 

wrote: “The Document in Question is of such poor quality that no date or signature of 

the person on the deed can be established. [¶] The document is nearly totally illegible 

and therefore can have no standing as establishing any facts relating to the property in 

question. [¶] It is a document with no legible signature.” 

Defendants again filed a demurrer. This time, the trial court sustained defendants‟ 

demurrer without leave to amend. It found the complaint was ambiguous, unintelligible, 

filled with conclusions and legal arguments, and missing a prayer for relief. In addition, 

the one document necessary to support her claims, the alleged deed from Robert to 

Genevieve, had not been attached as the court had directed. The court stated that 

document was necessary because of the fact-based pleadings plaintiff used in her first 

amended complaint. 

The court also determined the complaint failed to state sufficient facts for each 

cause of action. The Nattenberg letter failed to support plaintiff‟s claim of forgery, as it 

stated the quitclaim deed was so unintelligible it had no standing to establish any facts 

regarding the property. Plaintiff‟s assertion that she saw a deed transferring title from 

Robert back to Genevieve was not sufficient to state a cause of action. Without a copy of 

that deed, the court could assume only that the deed did not exist. 

The court also stated at oral argument that it found the causes of action for 

equitable relief were barred by laches. The failure of Genevieve to attempt to quiet title 

while she lived, coupled with plaintiff‟s attempt to do so more than 30 years after 

Genevieve‟s death, constituted unjustifiable delay. 

Plaintiff appeals. She asserts the trial court committed errors by (1) instructing her 

at one point to retain an attorney; (2) not allowing her to file an opposition to the 
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demurrer to the second amended complaint; and (3) requiring her to present evidence of 

the deed she alleged transferred title from Robert to Genevieve. She also claims the trial 

court abused its discretion in not granting her leave to amend her complaint a third time. 

DISCUSSION

I

Procedural Errors

Plaintiff asserts the court committed various procedural errors. We disagree with 

her contentions. We review each alleged error separately.

A. Instructing plaintiff to retain an attorney

Plaintiff, who appeared in pro per before the trial court, claims the court 

wrongfully directed her to hire an attorney. The record, however, indicates plaintiff 

understood at trial that the court had not required her to retain an attorney, but instead had 

addressed her within the context of her ongoing attempts to retain counsel when it made 

the contested remark. The court did not err.

After defendants filed their demurrer to the second amended complaint, plaintiff 

requested an extension of time to respond. Her request was based in part on her inability 

to retain counsel. The trial court granted the request, but in resetting the hearing on the 

demurrer, the court informed plaintiff she was “to be here with a lawyer ready to rock 

and roll” on the new hearing date. The court‟s minute order stated plaintiff was to 

“appear with an attorney . . . .” 

At the beginning of the hearing on the demurrer, however, the court (a different 

judge than the one who granted the extension of time) clarified the prior judge‟s direction 

that plaintiff appear with an attorney. The court stated it appeared to him the prior judge 

was not ordering plaintiff to appear with counsel, but was instead encouraging her to 

retain counsel because that was the ground on which it granted the extension. The court 

stated to plaintiff: “[W]e‟re not in the business of forcing people to get a lawyer if they 
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choose not to. I hope you understand that.” Plaintiff replied: “Yes, I understand that.” 

Plaintiff continued to represent herself without any objection by the trial court.

We agree with the trial court‟s interpretation of the record. Plaintiff sought the 

extension of time because she had been unable to retain counsel and was still attempting 

to do so. The court thus was not requiring plaintiff to retain counsel, but instead was 

encouraging her and the attorney she was seeking to find to be prepared for the next 

hearing. The record indicates plaintiff understood this was the trial court‟s meaning. In 

understanding the court‟s meaning, she acknowledged the court was not requiring her to 

retain counsel, nor was it precluding her from representing herself. The trial court 

committed no error on this point.

B. Prohibiting plaintiff from filing an opposition

Plaintiff claims the court erred in not considering her opposition to the demurrer. 

We disagree, as the opposition was filed late.

Upon plaintiff‟s request for an extension of time, the court continued the hearing 

on the demurrer to August 16, 2010. On August 5, 2010, defendants notified the court 

that they had received no opposition to their demurrer. Plaintiff contends she attempted 

to file an opposition on August 12, 2010, by fax. The record includes no opposition by 

plaintiff.

At the hearing on the demurrer, the court as a preliminary matter noted that 

plaintiff on August 12, 2010, had attempted to file a motion to strike the demurrer. The 

court stated the motion was not timely filed and it would not consider it. 

Plaintiff contends the court erred, but she is incorrect. Opposition papers are to be 

filed no later than nine court days before the scheduled hearing. (Code of Civ. Proc., §

1005, subd. (b).) In plaintiff‟s case, her opposition papers were due August 3, 2010. Her 

attempt to file them on August 12 was obviously tardy. 

A court has discretion to refuse to consider papers filed late. (Cal. Rules of Court, 

rule 3.1300(d).) The court here did not abuse its discretion in refusing to consider 
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plaintiff‟s motion to strike. She had been given extended time to file her opposition, and 

her attempt to file a motion to strike the demurrer two court days before the hearing 

would not have given the court and defendants sufficient time to consider it.

C. Requirement to attach deed to second amended complaint

Plaintiff argues the trial court erred in requiring her to attach to her second 

amended complaint a copy of the deed she alleged transferred title from Robert back to 

Genevieve. She claims the court should have taken as true her allegation of the deed‟s 

existence for purposes of the demurrer. Under the circumstances of plaintiff‟s complaint, 

the court did not err. Without a copy of the recorded deed, or at least sufficient 

information by which defendants could locate the deed, the amended complaint failed to 

give defendants sufficient notice of the cause of action against them.

“The essence of the matter is fairness in pleading to give the defendant such notice 

by the complaint that he may prepare his case.” (Leet v. Union Pac. R. R. Co. (1944) 25 

Cal.2d 605, 619.) “The Supreme Court has consistently stated the guideline that „a 

plaintiff is required only to set forth the essential facts of his case with reasonable 

precision and with particularity sufficient to acquaint a defendant with the nature, source 

and extent of his cause of action.‟ (Youngman v. Nevada Irrigation Dist.[ (1969) 70 

Cal.2d 240,] 245; Smith v. Kern County Land Co.[ (1958) 51 Cal.2d 205,] 209.) It has 

also been stated that „[the] particularity required in pleading facts depends on the extent 

to which the defendant in fairness needs detailed information that can be conveniently 

provided by the plaintiff; less particularity is required where the defendant may be 

assumed to have knowledge of the facts equal to that possessed by the plaintiff.‟ 

(Jackson v. Pasadena City School Dist.[ (1963)] 59 Cal.2d 876, 879; Burks v. Poppy 

Construction Co.[ (1962)] 57 Cal.2d 463, 474.)” (Semole v. Sansoucie (1972) 28 

Cal.App.3d 714, 719.)

At the time the trial court imposed the requirement to attach the alleged transfer 

deed, plaintiff had not yet pleaded the 1960 grant deed was a forgery. Instead, she had 
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claimed title to the property had transferred back to Genevieve by means of the divorce 

judgment and the alleged transfer deed. The trial court correctly stated the divorce 

judgment did not convey title, and thus, in light of the quitclaim deed from Genevieve, 

plaintiff could not claim an interest in the property except by the alleged transfer deed she 

claimed existed. 

Simply asserting, as plaintiff did in her first amended complaint, that Robert had 

transferred the property back to Genevieve by the transfer deed did not sufficiently plead 

the elements of her causes of action or provide defendants with the information they 

needed to defend against her claims. She did not allege defendants had notice of the 

conveyance, nor did her allegation give them sufficient information by which they could 

understand the claim, find the conveyance, and prepare a defense. The trial court 

correctly concluded the bare allegation of a reconveyance lacked specificity.

By directing plaintiff to attach a copy of a recorded deed, the court was instructing 

plaintiff how she could satisfy her pleading burden. She could have satisfied the burden 

by providing enough information about the deed so that defendants could have identified 

and found it. The trial court recognized the easiest way of doing this, however, was by 

attaching a copy of the alleged deed, a deed plaintiff claimed she had seen. Plaintiff had 

already attached every other relevant conveyance and document to her complaints. The 

court did not abuse its discretion by asking plaintiff to attach the one additional document 

that mattered most. 

II

Decision Denying Leave to Amend

Plaintiff claims she pleaded sufficient facts to state a cause of action and to 

overcome any statute of limitations or laches defense. Because we and the trial court 

have concluded she cannot state a claim of title in the property based on the divorce 

judgment or any purported transfer deed, her complaint lives or dies based on the validity 

of her forgery claim.
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A bona fide purchaser of real property generally takes the property free of any 

unknown rights in the property held by others. (Hochstein v. Romero (1990) 219 

Cal.App.3d 447, 451.) However, “a forged deed is a nullity, even as to bona fide 

purchasers . . . .” (Estates of Collins & Flowers (2012) 205 Cal.App.4th 1238, 1247.) 

Thus, if plaintiff can successfully allege an interest in the land based on the 1960 

quitclaim deed being a forgery, her complaint would survive a demurrer. 

Defendants argue plaintiff cannot base her claim on forgery as a matter of law and 

that we should uphold the trial court‟s sustaining of their demurrer without leave to 

amend. They contend (1) plaintiff is equitably estopped from attacking the quitclaim 

deed based on laches; (2) her claims are barred by the statute of limitations; and (3) she is 

prevented from attacking the quitclaim deed because her forgery allegations are 

inconsistent with the allegations in her previous complaints.

We conclude this is the rare case where laches can be determined on the pleadings 

alone, and we affirm the trial court‟s action on that basis.

The affirmative defense of laches may estop a party from attacking a forged 

instrument. (See Merry v. Garibaldi (1941) 48 Cal.App.2d 397, 401.) Laches is 

ordinarily a question of fact. (Lasko v. Valley Presbyterian Hospital (1986) 180 

Cal.App.3d 519, 527.) However, the defense may be raised by demurrer, “but only if the 

complaint shows on its face unreasonable delay plus prejudice or acquiescence. 

[Citations.]” (Conti v. Board of Civil Service Commissioners (1969) 1 Cal.3d 351, 362, 

original italics.)

Plaintiff‟s second amended complaint pleads sufficiently detailed facts from which 

we can determine as a matter of law her cause is barred by laches. First, the second 

amended complaint shows on its face unreasonable delay. Although plaintiff herself 

acted without delay upon discovering the property after her father‟s death, she as a 

successor in interest to her mother‟s claim is held responsible for the delay of her 
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predecessor, namely, her mother Genevieve. (See N. Hollywood M. Co. v. N. Amer. B. 

etc. Co. (1934) 137 Cal.App. 180, 187.)

As shown by plaintiff‟s allegations, Genevieve unreasonably delayed bringing an 

action to enforce her alleged interest in the property. The complaint alleges facts that 

show Genevieve knew by 1966 the property had been transferred, but yet she took no 

action to regain her interest in it for the rest of her life, a period of 13 years. According to 

the complaint, Genevieve stopped paying property taxes on the property in 1966, the 

same year Robert transferred the property to the Cadwells. Her decision not to pay taxes 

on the property after 1966 indicates she was aware the property had been transferred and 

she was no longer responsible for paying property tax. At that point, Genevieve knew or 

should have known she no longer held an interest in the property, and if she believed she 

had been deprived of her interest wrongfully, she needed to act to protect it. Her refusal 

to act for the 13 years of her remaining life was unreasonable under these circumstances.

Second, the second amended complaint shows on its face that defendants will be 

prejudiced if plaintiff is not estopped from prosecuting the action. Where “an action is 

commenced many years after its accrual, the death of witnesses or destruction of 

evidence, presumed as well as actual, may prejudice the defendant and justify denial of 

relief because of staleness of the claim. [Citations.]” (Maguire v. Hibernia S. & L. Soc. 

(1944) 23 Cal.2d 719, 736, original italics.) Such is the case here. The only two 

witnesses who could testify concerning the 1960 quitclaim deed, Genevieve and Robert, 

are deceased. In addition, plaintiff submitted evidence by a forensic document examiner 

who stated, in effect, that the handwriting on the quitclaim deed was so illegible it was 

impossible to determine whether the deed was in fact a forgery. 

Thus, based on the facts and evidence pleaded by plaintiff, there is no possibility 

she can establish the 1960 quitclaim deed is a forgery. Under these circumstances, 

allowing the action to proceed against defendants would work a great prejudice to them. 
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For this reason, we conclude the trial court correctly denied plaintiff a third opportunity 

to file an amended complaint and sustained the demurrer without leave to amend.

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to defendants. (Cal. 

Rules of Court, rule 8.278(a).)

 NICHOLSON , Acting P. J.

We concur:

 BUTZ , J.

 MAURO , J.