Valdivia v. Rodriguez CA3

Filed 11/20/23 Valdivia v. Rodriguez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

MARIA I. VALDIVIA, C096784

Plaintiff and Appellant, (Super. Ct. No. STK-CV- UBC-2019-0012543) v.

EMMA MARIA RODRIGUEZ,

Defendant and Respondent.

Maria I. Valdivia (plaintiff) sued her daughter Emma Maria Rodriguez (defendant), alleging breach of an oral contract the two made in connection with the purchase of a home. In its statement of decision, the trial court ruled the oral contract was not enforceable because it was never put in writing as required by the statute of frauds. (Civ. Code, § 1624.) On appeal, plaintiff contends that ruling was erroneous because it overlooked the applicability of the principle that “part performance” of an oral

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contract by a party may preclude the other party from invoking the statute of frauds as an affirmative defense. Because plaintiff’s argument is not persuasive, we affirm. BACKGROUND In 2010, plaintiff and defendant orally agreed that defendant would purchase a house in her name with a down payment of $22,000 provided by plaintiff. They further agreed defendant would have title to the property while plaintiff made the mortgage payments on the purchase loan that defendant obtained, and defendant would transfer title to plaintiff once plaintiff paid off the mortgage loan. The agreement was never reduced to writing. Plaintiff moved into the house in 2010 and made the mortgage payments, either to defendant or directly to the mortgage company, until August 2019, when defendant served her with a tenancy termination notice. Plaintiff stopped making the payments and filed a lawsuit asserting claims of false promise, breach of contract, and quiet title. After a bench trial at which multiple witnesses testified, the trial court ruled in a statement of decision that under the statute of frauds the oral agreement between the parties was not enforceable, and the mortgage lender was an indispensable party whose absence from the litigation prohibited the trial court from making a ruling on title to the property. The trial court entered judgment in favor of defendant and plaintiff filed a notice of appeal with this court in August 2022. Plaintiff’s opening brief was filed in July 2023, and this case was fully briefed on September 6, 2023. DISCUSSION Plaintiff contends the trial court’s ruling was erroneous because it “failed to assert the equitable remedy of specific performance based on part performance.” Nothing in the appellate record indicates plaintiff raised this precise argument in the trial court. Plaintiff’s counsel did not articulate a “part performance” theory in closing argument, and neither the trial court’s oral ruling from the bench nor the statement of decision reflect a ruling on that theory. Plaintiff’s counsel did argue “performance,” but not “part