Filed 11/30/22 Shah v. Fidelity National Title Insurance Co. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

JAY C. SHAH,

Plaintiff and Appellant,

v.

FIDELITY NATIONAL TITLE 

INSURANCE COMPANY,

Defendant and Respondent.

 A165816

 (Santa Clara County

 Super. Ct. No. 2011-1-CV-

 203571)

Plaintiff Jay Shah appeals from a judgment entered in favor of Fidelity 

National Title Insurance Company after the trial court granted summary 

judgment. Shah contends Fidelity failed to meet its burden to demonstrate 

that coverage terminated under his title insurance policy based on his

voluntary conveyance of the subject property. He argues triable issues of fact 

exist as to continuation of coverage because a grant deed given to his parents

as trustees of their trust was an equitable mortgage, not a conveyance, and 

because he maintained an estate or interest in the property by his continued 

possession of the property. Finding no merit to Shah’s contentions, we

affirm.
2

I. BACKGROUND

A. Facts1

1. Property Purchase and Title Insurance

In 1959, non-party Mary Silva acquired a life estate in the property 

that is the subject of this action near Quimby Road in San Jose (the 

property). In December 1995, Shah entered a contract to purchase the 

property from Silva for $350,000. Silva transferred her interest in the 

property via a grant deed to “Jay C. Shah, Living Trust Dated June 8, 1993,”2

(the Trust) as grantee. When he purchased the property, Shah did not know

that Silva held only a life estate. 

Fidelity issued the title insurance policy in connection with Shah’s 1995 

purchase. The title policy was a California Land Title Association Standard 

Policy—1990 Form (CLTA 1990 Form) effective December 29, 1995. Schedule 

A of the title policy listed the named insured as the Trust. The title policy 

stated that the “estate or interest in the land described herein and which is 

covered by this policy is: A Fee.”

As relevant to the issues on appeal, section 2(b) of the Conditions and 

Stipulations, entitled, “After Conveyance of Title by an Insured,” states in 

relevant part: “The coverage of this policy shall continue in force as of 

[December 29, 1995] in favor of an insured only so long as the insured retains 

an estate or interest in the land, or holds an indebtedness secured by a 

purchase money mortgage given by a purchaser from the insured, or only so 

1 This is the second appeal in this matter. We recite only those facts 

relevant to the issues in this appeal. 

2 Many of the title descriptions used in this case are listed in all capital 

letters. While we retain the exact text of the titles, for stylistic reasons we 

change the capitalization of the descriptions. 
3

long as the insured shall have liability by reason of covenants of warranty 

made by the insured in any transfer or conveyance of the estate or interest.” 

2. Subsequent Deeds

Silva died on May 4, 2002. Upon her death, title to the property passed 

by operation of law to her heirs (the Silva heirs). The Silva heirs, however, 

did not take possession of the property and Shah remained in possession. On

June 19, 2002, Shah, as trustee of the Trust, recorded a grant deed (2002 

grant deed) in favor of his parents, “Chandrakant K. Shah and Mrudula C. 

Shah, as Trustees of the Shah 1978 Revocable Trust, dated January 22, 1978”

(Parent Trust). In his first amended complaint (FAC), Shah alleges the 2002 

grant deed was “made upon the mutual promises of the parties that the 

parents would grant title back to Shah upon certain conditions according to 

their oral agreement. This deed represented a mortgage rather than a sale or 

gift. [Civ. Code, § 2924(a).]” 

After the 2002 grant deed, there were nine additional recorded 

transfers of the property among Shah, his parents, and their respective trusts 

between the years 2005 and 2010.3 

3. Foreclosure, Refinance, and Discovery of Silva’s Life Estate

In September 2007, Shah borrowed $350,000 against the property from 

a private lender, Conquest, using a deed of trust as a security instrument. 

Nine months later when the promissory note came due and Shah was unable 

to pay the loan balance, Conquest recorded a notice of default and set the 

trustee’s sale for February 2009. 

3 Because they are not relevant to the resolution of this appeal, we do 

not detail the transactions here, though they are described generally in the 

prior nonpublished opinion. (Shah v. Fidelity National Title Ins. Co. (Sept. 

19, 2016, H038521) [nonpub. opn.] (Shah I).)
4

Shah attempted to arrange a refinance transaction to avoid foreclosure. 

In January 2009, however, the escrow title holder company discovered Silva’s 

life estate while searching the public record, and alerted Shah. This was the 

first time Shah learned of the defect in title to the property. Because Silva 

had only a life estate in the property, she had transferred a life estate, 

measured by her life (a life estate per autre vie), to Shah in 1995. When she 

died in May 2002, title to the property transferred to her heirs by operation of 

law, and Shah lost his interest in the property. Old Republic disclosed the 

title defect in its preliminary report, told Shah and his loan broker about the 

problem, and refused to issue title insurance to the proposed new lender. The 

refinancing transaction was put on hold. 

Conquest held a trustee’s sale on February 3, 2009, and the property 

was sold to Bob and Judy Schwartz (the Schwartzes). 

4. Shah’s Quiet Title Action

In March 2009, Shah filed suit against Silva’s heirs, the Schwartzes, 

and Conquest to quiet title (the quiet title action). Plaintiff alleged adverse 

possession against the Silva heirs based on open, notorious, continuous, and 

hostile occupancy under color of title from 2002 forward. 

On the same day he filed his quiet title action, Shah tendered a claim to 

Fidelity, demanding coverage under the title policy to pay coverage benefits, 

“including without limitation attorney fees and costs incurred . . . to date and 

in the future in handling [the quiet title action].” Six months later, Fidelity 

denied Shah’s claim. 

In its letter denying coverage, Fidelity pointed to the condition found 

in section 2(b) of the “Conditions and Stipulations” of the title policy 

regarding continuation of coverage. Fidelity told Shah that the 2002 grant 

deed to his parents as trustees of the Parent Trust terminated the title 
5

insurance policy and cancelled coverage because it was a “voluntary 

alienation of the property.” Fidelity wrote that because Shah was “no longer 

the owner of an estate or interest” in the property, Fidelity had no 

contractual obligation under the title policy. 

Plaintiff eventually settled his lawsuit against the Silva heirs, 

Conquest, and the Schwartzes, and in March 2010, the quiet title action was 

dismissed. Shah incurred $135,000 of attorney fees, costs of suit, and 

expenses in connection with the quiet title action. 

5. Shah’s Continuous Occupancy of the Property

From December 1995 when Shah acquired his interest in the property 

from Silva through March 2010 when he settled his quiet title action, a 

period of more than 14 years, Shah was the only constant occupant of the 

property. Shah claimed he “actually possessed and controlled the land” and 

believed he was the “absolute and rightful sole legal owner of it.” Shah used 

the property, maintained dirt roads and fixtures on it, repaired fences and 

gates on it, rode his horses on it, and entered an agricultural lease to allow a 

rancher to run livestock on his land, for which he collected rents for many 

years. Shah did not surrender possession of the property to his parents in 

connection with any of the deeds signed by him and he paid mortgage 

installments owed to Silva and her estate after her death.

B. Procedure

In June 2011, Shah commenced this action against Fidelity for 

damages. The operative FAC alleged two causes of action for breach of 

contract (title policy) and breach of the implied covenant of good faith and 

fair dealing. The trial court sustained Fidelity’s demurrer without leave to 

amend. Shah appealed that decision and the Sixth District reversed in 

Shah I.
6

On remand, the trial court overruled the demurrer. After the parties 

engaged in discovery, Fidelity filed a motion for summary judgment. Shah 

opposed the motion for summary judgment, and filed his own motion for 

summary adjudication.

The trial court granted Fidelity’s motion for summary judgment and 

determined Shah’s motion for summary adjudication was moot. The court 

concluded that Fidelity met its burden to show coverage terminated under 

section 2(b) of the title policy before Shah’s 2009 tender because Shah had 

voluntarily transferred the property to his parents in 2002, and the transfer 

became effective by operation of law in May 2007 when Shah obtained fee 

title through adverse possession, under the after acquired title doctrine (Civ. 

Code, § 1106). The trial court concluded Shah had failed to raise a triable 

issue of material fact in opposition to the summary judgment motion.

The trial court also granted Fidelity’s motion for summary adjudication 

on the cause of action for breach of the implied covenant of good faith and fair 

dealing, and the claim for punitive damages under the genuine dispute 

doctrine because there was no triable issue as to whether Fidelity’s denial of 

the claim was unreasonable or without proper cause. 

The court entered judgment in Fidelity’s favor. Shah timely appealed

to the Sixth District Court of Appeal. The appeal was subsequently 

transferred to this District for resolution. 

II. DISCUSSION

A. Standard of Review

Summary judgment is appropriate if there is no triable issue of 

material fact and the moving party is entitled to judgment as a matter of law. 

(Code Civ. Proc., § 437c, subd. (c).) “A defendant moving for summary 

judgment has the initial burden of showing, with respect to each cause of 
7

action set forth in the complaint, the cause of action is without merit. A 

defendant meets that burden by showing one or more elements of the cause of 

action cannot be established, or there is a complete defense thereto. 

[Citation.] If the defendant makes such a showing, the burden shifts to the 

plaintiff to produce evidence demonstrating the existence of a triable issue of 

material fact.” (Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1101, citing 

Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) If the plaintiff 

fails to meet that burden, the motion will be granted. (Leyva, at p. 1102.)

“In determining whether a summary judgment motion was properly 

granted, ‘we review the trial court’s decision de novo, applying the rule that 

“[a] defendant is entitled to summary judgment if the record establishes as a 

matter of law that none of the plaintiff’s asserted causes of action can 

prevail.” ’ [Citation.]” (MacKinnon v. Truck Ins. Exchange (2003) 31 Cal.4th 

635, 641.) Where the trial court’s ruling is based on interpretation of 

insurance policy language, which is a question of law, our review of that 

question is also de novo. (Ibid.; First American Title Ins. Co. v. XWarehouse 

Lending Corp. (2009) 177 Cal.App.4th 106, 112–113.) 

B. Termination of Coverage

Shah contends the trial court erred in granting summary judgment for 

several reasons. First, Shah contends he could not transfer the property to 

his parents as trustees of the Parent Trust via the 2002 grant deed because 

he had only a life estate and the 2002 grant deed was a “wild deed” outside 

the chain of title. Second, Shah asserts that the 2002 grant deed was a 

mortgage, not a conveyance, and therefore he did not transfer the property. 

Third, Shah asserts that he remained in possession of the property at all 

relevant times, thus maintaining an “estate or interest” within the meaning 
8

of the continuance of coverage provision in section 2(b) of the title policy. For 

reasons we will explain, none of these contentions are availing. 

1. Conveyance by After-acquired Title

Fidelity moved for summary judgment on the ground that Shah’s cause 

of action for breach of the title insurance policy lacked merit because 

coverage terminated when plaintiff voluntarily transferred the property to 

his parents. Fidelity asserted that coverage under the title policy ended

when Shah obtained fee title by adverse possession of the property in May 

2007. At that time, under the after-acquired title doctrine, his acquisition of 

fee title transferred the property to his parents under the June 2002 grant 

deed by operation of law pursuant to Civil Code section 1106. 

In support of its motion, Fidelity produced the policy of title insurance 

and the 2002 grant deed from Shah to his parents as trustees of the Parent 

Trust. The title policy, a CLTA 1990 Form standard policy, defines “insured” 

as “the insured named in Schedule A, . . . and those who succeed to the 

interest of the named insured by operation of law as distinguished from 

purchase including, but not limited to, heirs, distributes, devisees, survivors, 

personal representatives, next of kin, or corporate or fiduciary successors.” 

Schedule A of the policy lists the insured as “Jay C. Shah, Living Trust Dated 

June 8, 1993.” Section 2(b) of the policy provides that the coverage of the 

policy shall continue “so long as the insured retains an estate or interest in 

the land.” 

The 2002 grant deed, recorded on June 19, 2002, states that Shah, as 

trustee of the Trust, “hereby grant(s)” the property to his parents as trustees 
9

of the Parent Trust “for a valuable consideration, receipt of which is hereby 

acknowledged.”4 

Relying on this evidence and Kwok v. Transnation Title Ins. Co. (2009) 

170 Cal.App.4th 1562 (Kwok), Fidelity argued that Shah voluntarily 

transferred the interest he had in the property to his parents. In Kwok, a 

husband and wife formed a limited liability company (LLC) and were its only 

members. (Id. at p. 1565.) The LLC purchased real property and obtained a 

CTLA standard form title insurance policy naming the LLC as insured. 

(Ibid.) The LLC later transferred the property via grant deed to the Kwoks 

as trustees of their revocable family trust and dissolved the LLC. When the 

Kwoks sought coverage from the title insurance company in an easement 

dispute with their neighbors, the company denied their claim on the ground 

that the LLC’s voluntary transfer of the property to the Kwoks as trustees

terminated coverage under the policy. (Id. at p. 1566.) The trial court 

rejected the Kwoks’ claim that they became insureds by operation of law 

when they succeeded to the LLC’s interest, and the appellate court affirmed. 

(Id. at pp. 1567, 1573.) As the court explained, “[t]he transfer of property by 

an insured into a family trust is a voluntary act and not one that arises by 

operation of law.” (Id. at p. 1571.) Because the LLC as the named insured 

had transferred the property’s title to the nonmember trustees, coverage 

under the title insurance policy terminated as a matter of law. (Ibid.)

Similarly, here, Fidelity offered evidence that Shah voluntarily transferred 

what appeared to be fee title to his parents as trustees of the Parent Trust by 

way of the 2002 grant deed. 

4 The trial court took judicial notice of the 2002 grand deed at Shah’s 

request. 
10

As both parties recognize, however, Shah was not able to transfer fee 

title to his parents in June 2002 because at that time his life estate per autre 

vie had terminated. In support of its summary judgment motion, Fidelity 

argued that Shah obtained fee title to the property on May 4, 2007 by adverse 

possession, at which time fee title passed by operation of law to his parents

under the after-acquired title doctrine. At that point, the voluntary 

conveyance via the 2002 grant deed became effective by operation of law and 

terminated his title coverage under section 2(b) of the title insurance policy.5 

“Where a person purports by proper instrument to grant real property 

in fee simple, and subsequently acquires any title, or claim of title thereto, 

the same passes by operation of law to the grantee, or his successors.” (Civ. 

Code, § 1106, italics added.) “It has long been recognized . . . that if a grantor 

purports to convey an interest in land which the grantor does not own, but 

afterwards acquires, the interest passes to the grantee at the time the 

grantor obtains it. ‘The general rule is that if the grantor in a conveyance of 

real property has no title, a defective title, or an estate less than which he 

assumed to grant, but subsequently he acquires the title or estate he 

purported to convey or perfects his title, the after-acquired or perfected title 

will inure to the grantee or his successors by way of estoppel, i.e., the grantor 

is estopped to deny the after-acquired title passed by his conveyance.’ ” 

5 We observe that Shah’s title insurance coverage would not have ended

simply because his life estate per autre vie terminated and he no longer held 

title to the property when Silva died. Such an interpretation would only 

serve to invalidate the most serious of title claims—those involving a total 

loss of title—and defeat the purpose of title insurance. (Ins. Code, § 12340.1 

[title insurance insures policy holders against loss or damage arising from 

defects in title to said property]; Quelimane Co., Inc. v. Stewart Title 

Guaranty Co. (1998) 19 Cal.4th 26, 41 [title insurance “insures against losses 

resulting from differences between the actual title and the record title as of 

the date title is insured”].) 
11

(Noronha v. Stewart (1988) 199 Cal.App.3d 485, 489.) “The net effect ‘is the 

same as if the grantor specifically provided in the deed that it conveyed all of 

the title and estate that the grantor then possessed or might at any time 

thereafter acquire.’ ” (3 Miller & Starr, Cal. Real Estate (4th ed. 2022) Afteracquired Title, § 8:74, p. 8-250; see Noronha, at p. 489.) 

Fidelity presented evidence that Shah acquired title to the property by 

adverse possession on May 4, 2007. In support of this assertion, Fidelity 

offered Shah’s verified complaint in the quiet title action, in which plaintiff 

alleged he met all of the elements required for adverse possession and 

obtained title to the property. Specifically, plaintiff stated under penalty of 

perjury that “[f]or the requisite 5-year period plaintiff actually, notoriously, 

exclusively, and openly possessed the real property under claim of right and 

color of law. An inspection of the real property would convey notice of 

plaintiff’s possession and use of the real property and would make it obvious 

that plaintiff was at all relevant times the true owner. In addition, plaintiff 

has paid all real property taxes assessed on the real property during the 

adverse possession period. Due to the foregoing, plaintiff has obtained title to 

the real property by adverse possession.” Fidelity also relied on allegations in 

Shah’s FAC, discovery responses, and deposition testimony that Shah 

remained in exclusive possession and control of the property from 

December 29, 1995 through March 2, 2010, without limitation, that his 

possession was hostile to the Silva heirs (the true owners), and that, among 

other things, he controlled and limited access to the property, leased the land 

to a cattle rancher, and used the property himself. (See, e.g., Dimmick v. 

Dimmick (1962) 58 Cal.2d 417, 421 [elements of adverse possession are (1) 

actual possession with reasonable notice to owner, (2) hostile to owner’s title, 
12

(3) under claim of right or color of title, (4) for five years uninterrupted, and 

(5) payment of property taxes].)

This evidence produced by Fidelity sufficed to meet its initial burden to 

show that coverage under the policy terminated under the after-acquired title 

doctrine when Shah obtained fee title by adverse possession in May 2007 and 

the property transferred by operation of law under the 2002 grant deed.

6 At

that point, it was incumbent on Shaw to demonstrate one or more triable 

issues of material fact as to continuation of coverage. 

In opposing summary judgment, Shah did not directly address the after 

acquired title doctrine. On appeal, he contends it is not undisputed that he 

obtained title by adverse possession in 2007. Rather, he argues Fidelity 

cannot rely on his allegations in the quiet title action because no final 

judgment was entered in that case. Shah asserts his mere allegations in the 

quiet title action cannot be accepted as proof of his acquisition of title by 

adverse possession under Code of Civil Procedure section 764.010. 

We disagree. First, Shah’s citation to Code of Civil Procedure 

section 764.0107 is unavailing because it states the requirements for 

6 We emphasize that Shah’s title insurance coverage did not terminate 

at the time he recorded the 2002 grant deed. We agree with Shah that 

because his life estate per autre vie terminated when Silva died in May 2002, 

he had no valid title, and thus, the deed was not effective to convey any

interest in the property at that point in time. However, when he obtained fee 

title by adverse possession in May 2007, the 2002 conveyance became 

effective automatically by operation of law under the after-acquired title 

doctrine. Thus, his title insurance coverage terminated in May 2007. 

7 Code of Civil Procedure section 764.010 provides: “The court shall 

examine into and determine the plaintiff’s title against the claims of all the 

defendants. The court shall not enter judgment by default but shall in all 

cases require evidence of plaintiff’s title and hear such evidence as may be 

offered respecting the claims of any of the defendants, other than claims the 
13

obtaining a quiet title judgment, but a judgment is not required for 

acquisition of fee title by adverse possession.8 “Fee simple title vests in the 

adverse possessor by operation of law at the moment the requisite conditions 

for adverse possession have been established for the statutory period. 

[Citation.] The adverse possessor is not required to take any further steps to 

acquire title once those conditions have been met.” (Marriage v. Keener 

(1994) 26 Cal.App.4th 186, 191; see People ex rel. Harris v. Aguayo (2017) 

11 Cal.App.5th 1150, 1166 [“Under the law of adverse possession, the 

possessor need not bring an action to perfect his or her claim of title.”]; Civ. 

Code, § 1007 [occupancy for statutory period confers a title by prescription].) 

Shah attempts to distinguish Keener by noting the court in that case only

held the plaintiff’s lawsuit was not barred by laches at the demurrer stage, 

but he fails to address the legal principle that an adverse possessor is not 

required to file a lawsuit or obtain a judgment for fee title to vest by 

operation of law. 

Second, it is well established that allegations from a prior pleading can 

be used as evidence to meet a moving party’s burden to demonstrate the 

absence of a triable issue of material fact. (Magnolia Square Homeowners 

Assn. v. Safeco Ins. Co. (1990) 221 Cal.App.3d 1049, 1061 [a pleading in a 

prior civil proceeding may be offered as an evidentiary admission against the 

pleader, even on behalf of a stranger to the prior action]; Mt. Hawley Ins. Co. 

v. Lopez (2013) 215 Cal.App.4th 1385, 1425, fn. 21 (Mt. Hawley) [same].) 

validity of which is admitted by the plaintiff in the complaint. The court 

shall render judgment in accordance with the evidence and the law.” 

8 Indeed, a plaintiff may not initiate a quiet title action until he or she 

has acquired prescriptive title. (Civ. Code, § 1006.) 
14

Here, Shah did not present any evidence to contradict his prior claim 

he acquired fee title in May 2007. (See, e.g., Mt. Hawley, supra, 

215 Cal.App.4th at p. 1425, fn. 21 [admission from prior pleading may be 

rebutted with explanatory evidence from the party against whom the 

admission is offered].) Rather, Shah admitted in his opposition memorandum 

of points and authorities in the trial court—and again in his opening brief on 

appeal—that he continuously possessed and controlled the land under color of 

title as required for adverse possession. Further, the evidence he presented

in opposition to summary judgment—that he was the sole occupant of the 

property from 1995 through March 2, 2010, that he, “without exception,”

exclusively possessed and controlled the land and “believed [himself] to the be 

absolute and rightful sole legal owner of it,” that he maintained the property 

and excluded others, and that he leased the land to a rancher, serves only to 

support the claim he acquired fee title by adverse possession.

9 Because Shah 

failed to present any evidence to controvert his claim he obtained fee title in 

May 2007, he failed to demonstrate the existence of a triable issue of fact on 

that point.

10

9 In his opening brief on appeal, Shah further states that after Silva 

died, “Shah occupied the 106 acres thereafter for almost seven years unaware 

of a defect in the title under color of title arising from the recorded deed from 

Silva . . . . [¶] Shah occupied the land hostile to the true owner. This is 

known as adverse possession because it is against the rights of the real 

owners. He also exercised his perceived, unchallenged right to rent out the

land against the exclusive rights held by the real owner to do so. He 

controlled the land, he maintained it, and kept others away who had no 

business there.” 

10 We likewise reject Shah’s argument that coverage did not terminate 

under the after-acquired title doctrine with the 2002 grant deed because his 

parents thereafter transferred title back to him and thus he succeeded his 

parents in obtaining fee title to the property. The case Shah cites, Noronha 
15

2. Equitable Mortgage

Shah next argues that the 2002 grant deed was not a grant deed, 

despite its outward appearance as one, because he and his parents 

understood it was a mortgage, not a conveyance of fee title.

Fidelity met its initial burden to show the 2002 grant deed transferred 

Shah’s after-acquired fee title by operation of law. The 2002 grant deed 

states simply that Shah, as trustee of the Trust, “hereby grants” the property 

to his parents as trustees of the Parent Trust. This operative language is

typical of a fee simple grant deed. (Civ. Code, § 1105 [“A fee simple title is 

presumed to be intended to pass by a grant of real property, unless it appears 

from the grant that a lesser estate was intended.”].) In Schwen v. Kaye 

(1984) 155 Cal.App.3d 949, 952, for example, the plaintiff was estopped to 

deny she voluntarily transferred title under the after-acquired title doctrine 

based on a grant deed delivered into escrow using similar language as the 

2002 grant deed in this case. As the court in Schwen explained, “No

reservation of rights or other limiting language appeared in the deed. A fee 

simple title is presumed to pass by a grant of real property, unless it appears 

from the grant that a lesser estate was intended. (Civ. Code, § 1105; italics

added.) Grant deeds are to be interpreted like contracts (Civ. Code, § 1066.) 

The essential element of a grant deed which unquestionably transfers an 

after-acquired title is the word “ ‘grant.’ ”

11 (Schwen, at p. 952; see Klamath 

v. Stewart, supra, 199 Cal.App.3d at page 489, does not discuss such a rule. 

In any event, the question under section 2(b) of the title policy is whether 

Shah voluntarily conveyed his interest so as to terminate coverage, not who 

ended up with title after multiple voluntary conveyances. 

11 We reject Shah’s argument that Fidelity failed to meet its initial 

burden to prove the nonexistence of a material fact because Shah pled the 

instrument was in fact a mortgage and Fidelity failed to address that
16

Land & Cattle Co. v. Roemer (1970) 12 Cal.App.3d 613, 618 [“A grant deed 

unquestionably transfers an after-acquired title.”].) 

Once Fidelity met its initial burden, the burden shifted to Shah to show 

the existence of a triable issue of fact. Shah argues that the 2002 grant deed 

did not convey a fee simple estate to his parents, but was a “mortgage” in the 

unconventional form of a deed absolute. In support of the assertion, Shah 

points to his own declaration and declarations by his parents, purporting to 

confirm that his parents loaned him money and the grant deed was merely 

security for the loan. 

Shah’s evidence failed to raise a triable issue of material fact. It is 

presumed that a deed absolute on its face conveys fee title to a grantee, but 

the presumption is rebuttable. (Civ. Code, § 1105; Evid. Code, § 662.) A 

party contending that a grant deed is in fact only a mortgage has the burden 

of proof to establish the fact by clear and convincing evidence. (Evid. Code, 

§ 662; Beeler v. American Trust Co. (1944) 24 Cal.2d 1, 7 (Beeler).) When a 

fact must be proven at trial by clear and convincing evidence, a plaintiff 

opposing summary judgment must produce evidence that could, if accepted 

by a rational trier of fact, satisfy that standard of proof. (Reader’s Digest 

Assn. v. Superior Court (1984) 37 Cal.3d 244, 252; Basich v. Allstate Ins. Co. 

(2001) 87 Cal.App.4th 1112, 1118–1121.)

allegations in its motion. Fidelity’s presentation of the recorded grant deed 

and legal argument that such transfers are presumed valid sufficed to meet 

its initial burden to show a voluntary conveyance and shifted the burden to

Shah to demonstrate the existence of a triable issue of material fact as to 

whether the 2002 grant deed was in fact a mortgage despite its appearance 

as an absolute deed. (See Civ. Code, § 1105; Evid. Code, § 662 [“The owner of 

the legal title to property is presumed to be the owner of the full beneficial 

title. This presumption may be rebutted only by clear and convincing 

proof.”]; Wehle v. Price (1927) 202 Cal. 394, 396–397.) 
17

Here, the only evidence regarding the mutual intention of the parties to 

treat the deed as a mortgage comes from Shah, who stated in his declaration: 

“From my recollection I and my parents verbally agreed that this deed (and 

the two others mentioned below to my parents) were subject to being reversed 

on certain conditions of my performance and thus given only as security. [¶] I 

treated this and other deeds mentioned below as a mortgage to secure debts 

owed to my parents.” Shah’s parents, however, do not attest to such an 

arrangement. Although the declaration of Shah’s parents states, among 

other things, that they did not pay money to Shah to purchase the property, 

there was no escrow or title insurance issued in connection with the deed, 

and they did not take (or intend to take) possession of the property, nowhere 

do they state that the 2002 grant deed was a mortgage or that they 

understood it to be one. 

The vague statement appearing only in Shah’s declaration as to a 

verbal agreement with his parents that the deed was subject to being 

reversed on certain conditions of his performance and his own treatment of 

the deed as a mortgage “falls far short of those requirements necessary to 

justify the overthrow of a deed absolute on its face, for the presumption is 

that such a deed is what it purports to be, and the burden of proof is upon the 

party claiming that it is only a mortgage. It must appear to the court beyond 

all reasonable controversy that it was the intention of not only one but all of 

the parties that the deed should be a mortgage. ‘A mere secret intention on 

the part of one of the parties, not disclosed or communicated to the other, will 

not have the effect of changing the character of the transaction.’ ” (Wehle v. 

Price, supra, 202 Cal. at pp. 396–397; Develop-Amatic Engineering v. 

Republic Mortgage Co. (1970) 12 Cal.App.3d 143, 148 [unilateral and 
18

undisclosed intent of plaintiff to treat transaction as a mortgage could not be 

used to belie the apparent status of the conveyance].) 

Moreover, for an absolute deed to be construed as a mortgage, there 

must be a relationship of debtor and creditor between the parties. (Beeler,

supra, 24 Cal.2d at p. 20; Shusett, Inc. v. Home Sav. & Loan Assn. (1964) 

231 Cal.App.2d 146, 152 [in asserting absolute deed is mortgage, plaintiff 

must allege creation of a debt or other obligation and that both parties 

intended the deed be a mortgage to secure such debt or obligation].) But here 

the only specific evidence in the record that Shah borrowed money from 

parents shows that he asked to borrow money from them in December 2002, 

over six months after the 2002 grant deed was recorded. Both Shah’s 

declaration and the declaration from his parents indicate that Shah asked his 

parents in December 2002 for almost $300,000 to pay off the balance of the 

promissory note to Silva, which amount they gave him the same month. 

Shah’s parents attested that “Before that payoff of that debt, we did not at 

any time pay any of the monthly installment payments due on that debt. Our 

payment on that obligation owed by our son Jay was limited to that one-time 

payoff to the Silva Estate.” Shah’s vague statement in his own declaration 

that he “treated [the 2002 grant deed] . . . as a mortgage to secure debts owed 

to [his] parents” is insufficient to raise a triable issue that both Shah and his 

parents intended the 2002 grant deed as a mortgage when the only evidence 

in the record of a debt owed to his parents was the almost $300,000 Shah 

borrowed from them more than six months after the 2002 grant deed was 

recorded and no one attests the previously recorded 2002 grant deed secured 

that debt. 
19

3. Possession As an “Estate or Interest”

Shah also contends that he retained “an estate or interest” within the 

meaning of the continuation of coverage policy term because it is undisputed 

he retained a possessory interest in the property at all relevant times. 

Relying on the definition of a “possessory estate” in Black’s dictionary, Shah 

argues Fidelity was obligated to continue his coverage because he retained 

such an interest in the property. Shah also argues that he had a legitimate 

“interest” in the land because he had a right to receive income from his 

agricultural lease for cattle grazing made with a rancher. 

The express terms of the policy, however, dictate otherwise. “ ‘Our goal 

in construing insurance contracts, as with contracts generally, is to give effect 

to the parties’ mutual intentions. [Citations.] “If contractual language is 

clear and explicit, it governs.” [Citations.] If the terms are ambiguous [i.e., 

susceptible of more than one reasonable interpretation], we interpret them to 

protect “ ‘the objectively reasonable expectations of the insured.’ ” [Citation.] 

Only if these rules do not resolve a claimed ambiguity do we resort to the rule 

that ambiguities are to be resolved against the insurer. [Citations.]” 

(Minkler v. Safeco Ins. Co. of America (2010) 49 Cal.4th 315, 321.) When 

construing an insurance contract, as with any other contract, we consider the 

whole of the contract together. (Civ. Code, § 1641 [“The whole of a contract is 

to be taken together, so as to give effect to every part, if reasonably 

practicable, each clause helping to interpret the other.”].) We will not find 

contracts “to be ambiguous in the abstract” or “strain to create an ambiguity 

where none exists.” (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 

18–19.) 

Section 2(b) of the title policy states that coverage continues in favor of 

an insured “only so long as the Insured retains an estate or interest in the 
20

land . . . .” When construing the policy as a whole, this language is not 

ambiguous. Among other things, the policy insured “against loss or damage 

. . . sustained or incurred by the insured by reason of: [¶] 1. Title to the estate 

or interest described in Schedule A being vested other than as stated 

therein.” Schedule A of the policy uses the same language to state: “The 

estate or interest in the land described herein and which is covered by this 

policy is: A Fee.” Thus, the express language of the policy indicates the 

coverage provided is title protection, not occupancy or a right to collect rents

or profits. This language is consistent with the purpose of title insurance. 

(See Siegel v. Fidelity Nat. Title Ins. Co., (1996) 46 Cal.App.4th 1181, 1191 

[“ ‘A title policy is “. . . a contract to indemnify against loss caused by defects 

in the title or encumbrances on the title” ’ ”].)

“We are not at liberty to rewrite the policy to achieve the result [Shah] 

seek[s]. ‘ “[W]e do not rewrite any provision of any contract, [including an 

insurance policy], for any purpose.” ’ ” (Kwok, supra, 170 Cal.App.4th at 

p. 1571.) Under the express terms of the policy, coverage terminated when 

Shah voluntarily conveyed the property and thereafter acquired fee title by 

operation of law. (See Londen Land Co., LLC v. Title Resources Guar. Co. 

(9th Cir. 2012) 467 Fed. Appx. 708, 709–710 [insured did not “retain an 

estate or interest in the land” within meaning of continuation of coverage 

provision when it conveyed land to LLC in fee simple because it “conveyed 

the entirety of its estate or interest”].) Accordingly, Shah cannot demonstrate 

the existence of a triable issue of fact regarding continuation of coverage 

based on his possession and occupancy of the property or his collection of 

rents. 

For all of the reasons we have discussed, Fidelity met its initial burden 

to demonstrate coverage under the title insurance policy terminated under 
21

section 2(b) when Shah voluntarily transferred the property to his parents in 

the 2002 grant deed and subsequently acquired fee title by adverse 

possession in May 2007. Because Shah failed to present evidence raising a 

triable issue of material fact, Fidelity was entitled to judgment as a matter of 

law on Shah’s causes of action for breach of contract and breach of the 

implied covenant of good faith and fair dealing. Accordingly, we do not reach 

the parties’ arguments as to other possible grounds for summary judgment. 

C. Request for Judicial Notice

Fidelity requested we take judicial notice of the docket in Shah v. 

Schwartz (Super. Ct. Santa Clara County, No. 1-09-CV-136321), to support 

its argument that Fidelity owed no duty to defend Shah in that case because 

no party asserted a cause of action against him based on a matter insured 

against under the policy or challenged his title to the subject property. We 

deny the request as it is unnecessary to resolution of this appeal. 

D. Civility

In concluding, we are obligated to admonish Shah’s counsel, Craig J. 

Bassett, for making repeated, unfounded personal attacks on the trial court

and opposing counsel in his appellate papers, apparently because he 

disagreed with the trial court’s decision. To illustrate, we will quote a few 

excerpts from the opening and reply briefs. 

About the court: “Thus far, the trial court has favored Fidelity because 

that court does not understand, and refuses to learn, the principles of the law 

applicable to the facts of this case. The lower court unlawfully sides with the 

wrongdoer and throws Shah out the courtroom door, twice now!” “The lower 

court wrests [the] holding [of Marriage v. Keener, supra, 26 Cal.App.4th 186], 

misrepresents it, and misuses it to knowingly err to achieve a preconceived 

outcome harmful to Shah. It wanted to vindicate the judge of the same court 
22

who in error prejudicially sustained Fidelity’s demurrer to Shah’s FAC on the 

same erroneous grounds, despite the successful appeal and reversal of that 

decision.” “In rendering its decision on the MSJ [(motion for summary 

judgment)], the lower court acted like a magical mystery trial had been held 

without a jury while Shah was in absentia and that it was decided based on 

one single document alone . . . .” 

“The duplicity of the lower court, however, exposes its pervasive error.” 

“The lower court’s short-sighted derogation of the policy of the law explained 

above and its total disregard for the relevant statutes in order to achieve a 

wrongful outcome to favor the title insurance industry and knowingly harm 

the innocent insured, twice now, means that something is terribly wrong and 

that the courts have lost their way.” “The lower court knowingly erred here 

to protect itself rather than enforce the law as was its sworn duty.” The trial 

court “refuses to get the facts straight, refuses to interpret the clause 

properly, and refuses to follow the law.” 

About defendant, and by implication, opposing counsel: “Because it 

knows that it can with success, as this case proves, engage in bad faith 

insurance tactics to seduce gullible courts who have little experience and no 

training in such matters . . . .”

12 “Is it not the goal here to consider and 

discover the truth, the whole truth, and nothing but the truth drawing 

inferences from and accepting evidence in the light most favorable to Shah? 

Why would Fidelity think itself above this law? Because it believes it is a law 

unto itself not subject to the law so that it can in bad faith seek exoneration 

on spurious grounds when its liability is clear. The sophistry of Fidelity 

cannot be passed off as truth in this proceeding.” “This court should respect 

12 We note this comment is also (obviously) another insult directed at 

the trial court. 
23

and adopt [Shah’s] absolutely correct analysis, no matter what bag of tricks, 

lies, and misdirection Fidelity throws at the Court at this juncture, which is 

all that Fidelity has done judging by the content of its respondent’s brief.” 

These quotes are a sampling of the numerous inappropriate arguments 

scattered throughout counsel’s briefs. Perhaps not surprisingly, these 

unhelpful remarks are unsupported by any evidence in the record. Such 

bombastic, ad hominem attacks have no place in an appellate brief and are 

potentially contemptuous and sanctionable behavior. “[A]n opening brief is 

not an appropriate vehicle for an attorney to ‘vent his spleen’ . . . . This is 

because, once the brief is filed, both the opponent and the state must expend 

resources in defending against and processing the appeal. Thus, an 

unsupported appellate tirade is more than just words on paper; it represents 

a real cost to the opposing party and to the state.” (Pierotti v. Torian (2000) 

81 Cal.App.4th 17, 32–33, fn. omitted [awarding sanctions for frivolous 

arguments unsupported by the record made in an opening appellate brief].) 

Further, “[d]isparaging the trial judge is a tactic that is not taken 

lightly by a reviewing court. Counsel better make sure he or she has the 

facts right before venturing into such dangerous territory because it is

contemptuous for an attorney to make the unsupported assertion that the 

judge was ‘act[ing] out of bias toward a party.’ ” (In re S.C. (2006) 

138 Cal.App.4th 396, 422.) We note counsel’s unwarranted attacks are 

particularly hypocritical in that counsel makes reference multiple times to 

overburdened and busy courts. Ironically, the extremely argumentative 

nature of his two briefs on appeal makes it more time-consuming for this 

court to sift through the unjustified personal attacks and hyperbolic rhetoric 

to get to the legal issues that need to be resolved. 
24

Counsel’s attacks also reflect poorly on the profession. Impugning the 

character of opposing counsel is almost never appropriate, and in this case as 

we have noted, the charges were particularly unfounded, given the level of 

hypocrisy counsel demonstrated in making them. (See, e.g., In re S.C., supra, 

138 Cal.App.4th at p. 412 [“unwarranted personal attacks on the character or 

motives of the opposing party, counsel, or witnesses are inappropriate and 

may constitute misconduct”]; Martinez v. Department of Transportation 

(2015) 238 Cal.App.4th 559, 566 [“Attorneys are not to mount a personal

attack on the opposing party even by insinuation.”].) 

It would be deeply disturbing if the lack of professionalism and respect 

reflected in counsel’s conduct toward the court and opposing counsel were 

common among members of the bar. Based on our experience, it is not. For 

counsel’s benefit, however, we repeat the admonition of the Board of 

Governors of the State Bar that “attorneys have an obligation to be 

professional with . . . other parties and counsel, [and] the courts . . . . This 

obligation includes civility, professional integrity, personal dignity, candor, 

diligence, respect, courtesy, and cooperation, all of which are essential to the 

fair administration of justice and conflict resolution.” (Cal. Atty. Guidelines 

of Civility & Professionalism (July 20, 2007) Introduction., p. 3; id., § 4, p. 5 

[“An attorney should not disparage the intelligence, integrity, ethics, morals 

or behavior of the court or other counsel, parties or participants when those 

characteristics are not at issue. [¶] . . . [¶] . . . An attorney should avoid 

hostile, demeaning or humiliating words.”].) The kind of conduct displayed in 

counsel’s appellate briefing “not only disserves the individual involved, it 

demeans the profession as a whole and our system of justice.” (Id., 

Introduction, p. 3.) Rather, counsel must “strive for the highest standards of 

attorney behavior to elevate and enhance our service to justice.” (Ibid.) 
25

We strongly admonish plaintiff’s counsel to conduct himself in a more 

professional manner when appearing before this or any other court, and note 

that such conduct in a future case may subject him to sanctions much 

harsher than this warning. 

III. DISPOSITION

The judgment is affirmed. Fidelity shall recover its costs on appeal. 

MARGULIES, J.

WE CONCUR:

HUMES, P. J.

BANKE, J.

A165816

Shah v. Fidelity National Title Insurance Company