Filed 10/26/10 Casonhua v.

Washington Mutual Bank CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

YVONNE CASONHUA et al., B218606

ADMINISTRATORS FOR THE ESTATE B218608
OF FLORENCE SIMS, DECEASED, and
THE ESTATE OF DAVID SIMS, (Los Angeles County
DECEASED Super. Ct. No. BA287823)

Petitioners and Appellants,

v.

WASHINGTON MUTUAL BANK

(currently known as J.P. Morgan Chase),
Successor-in-Interest to Long Beach
Mortgage Company,

Defendant and Respondent.

APPEAL from judgments of the Superior Court of Los Angeles County. Reva
Goetz, Commissioner. Reversed and remanded.
Larson & Associates and Larry Larson, for Petitioners and Appellants.
Horton & Debolt, Barton E. Debolt and Partick G. Bollig, for Defendant and
Respondent.
 INTRODUCTION

In 2003, Sheron Berry recorded a grant deed that gave her title to a residential
property previously owned by the Sims Family Trust. The deed appeared to be signed by
Berry‟s grandmother, Florence Sims, who passed away seven months before Berry
recorded the deed. Berry later obtained a loan from Washington Mutual, which she
secured with a deed of trust to the property. After Berry defaulted on the loan,
Washington Mutual initiated foreclosure proceedings.
Shortly thereafter, Florence Sims‟s step-daughter, Yvonne Casonhua, and her
husband, James Casonhua, filed two complaints against Berry, Washington Mutual and
others, alleging that Berry fraudulently obtained the deed thereby voiding the deed in its
entirety. The first complaint was brought on behalf of the Estate of Florence Sims and
the second was brought on behalf of the Estate of David Sims, who was Florence‟s
husband. Washington Mutual demurred to both complaints, arguing that, as a bona fide
encumbrancer, it was entitled to rely on Berry‟s deed of trust. The trial court agreed,
concluding that, under the facts pleaded in both complaints, Berry‟s grant deed was
voidable but not void and, as a result, Washington Mutual retained good title. The court
sustained the demurrers without leave to amend and entered judgments in favor of
Washington Mutual. The Casonhuas timely appealed the judgments.
We reverse the trial court‟s orders sustaining the demurrers and conclude that the
Casonhuas have pleaded claims that, if proven at trial, would void Berry‟s deed in its
entirety thereby nullifying Washington Mutual‟s interest in the property.

FACTUAL AND PROCEDURAL BACKGROUND

A. Allegations in the Complaint
1. Events Preceding the Plaintiffs’ Lawsuits
Florence and David Sims owned two parcels of real property, which included a
personal residence (the Residence Property) and a two-unit income property (the Income
Property; collectively “the Properties”). In 1991, the Simses established the Sims Family
Trust, which was funded with the Residence Property and the Income Property.

2
According to the terms of the Trust, upon the Simses‟ death, the Residence Property was
to be distributed to Florence Sims‟s daughter, Shirley Traylor, and the Income Property
was to be distributed to David Sims‟s daughter, Yvonne Casonhua. David died shortly
after the Trust was created, leaving Florence – then 86 years old – as the sole trustee.
Shortly after her husband‟s death, Florence began to exhibit symptoms of
dementia. As her medical condition deteriorated, Florence developed a confidential
relationship with her granddaughter, Sheron Berry, who helped Florence make medical
decisions. In December of 2001, Florence provided Berry with a power of attorney. Two
weeks later, Florence was diagnosed with dementia; she died in April of 2003.
After Florence died, Berry recorded two grant deeds that conveyed the Residence
Property and the Income Property from the Sims Family Trust to Berry. The grant deeds
indicate that Florence transferred the Properties to Berry as “bona fide gifts.” The grant
deeds were purportedly signed by Florence in January of 2002.
Between 2004 and 2006, Berry used the Properties to secure several loans. In
2006, she obtained a $440,000 loan from Washington Mutual Bank secured by a deed of
trust to the Income Property.1 Later that year, Berry obtained a loan in the amount of
$361,000 from Avelo Mortgage, LLC, which she secured with a deed of trust to the
Residence Property.2
In early 2008, Berry defaulted on both loans and Washington Mutual and Avelo
initiated foreclosure proceedings. Yvonne Casonhua became aware that Berry had
obtained title to the Properties after the lenders affixed notices of foreclosure to each
property.

1
Berry initially obtained her loan on the Income Property from Long Beach
Mortgage Company. Washington Mutual is the successor-in-interest to Long Beach
Mortgage Company and the current lender of record for the Income Property.
Washington Mutual is currently known as J.P. Morgan.
2
Berry initially obtained her loan on the Residence Property from New Century
Mortgage. Avelo is the successor-in-interest to New Century Mortgage and the current
lender of record for the Residence Property.

3
 2. The Casonhua’s Lawsuit and Washington Mutual’s Demurrer
In 2008, Yvonne Casonhua and her husband, James Casonhua, filed two,
essentially identical complaints against Berry, Washington Mutual, Avelo and Jerral E.
Wesley, who notarized Berry‟s grant deeds. The first suit was brought on behalf of the
Estate of Florence Sims (the Florence Sims Complaint) and the second was brought on
behalf of the Estate of David Sims (the David Sims Complaint).3 The complaints allege
that Florence‟s conveyances to Berry are void under a variety of different legal theories.
The Casonhuas‟ first claim, which is pleaded against all of the Defendants, alleges that
Berry forged Florence‟s signature on the grant deeds, thereby rendering them void. The
second and third claims, which are also pleaded against all of the Defendants, allege that,
if Florence did sign the grant deeds, they are nonetheless void because Florence “lacked
the mental capacity to execute the deeds” or, alternatively, Florence was “unaware of the
nature and effect of the deeds.” The Florence Sims Complaint includes an additional
claim, which is pleaded against Berry only, alleging that Berry “exerted undue influence
over [Florence] and substituted her will for [Florence‟s] in the distribution of [Florence‟s]
estate by causing the donative transfer of [Florence‟s] property to [Berry.]” This claim
does not appear in David Sims‟s Complaint.4
Washington Mutual demurred to both complaints, arguing that, as a bona fide
encumbrancer, it was justified in relying on Berry‟s deed to the Income Property

3
Although the record suggests that the two actions were related in the trial court,
they were never consolidated into a single action. Because the pleadings and briefings
filed in each case are essentially identical, we consider the appeals together.
4
The complaints contain numerous additional claims that are not directly relevant
to this appeal, including four causes of action that derive from the claims seeking to void
Berry‟s deed (quiet title, constructive trust, accounting and declaratory relief). Both
complaints also include a claim for conversion against Berry. The Florence Sims
Complaint additionally asserts a claim against Berry for Elder Financial Abuse and a
claim against Berry and the notary, Wesley, for conspiring to defraud Florence Sims‟s
Estate.

4
regardless of how she had obtained it.5 Washington Mutual also demurred on the ground
that the Plaintiffs‟ verified complaints contained inconsistent factual allegations.
Specifically, Washington Mutual asserted that because the Plaintiffs alleged that Berry
had obtained the deeds through undue influence, they were barred from alternatively
alleging that Berry had forged the deeds or fraudulently induced Florence to sign them.
Finally, Washington Mutual asserted that the Plaintiffs‟ claims were untimely and vague.
At the demurrer hearing, the trial court stated that it was “inclined to sustain the
demurrers without leave to amend,” explaining that “Washington Mutual is a bona fide
encumbrancer, and I just don‟t see how they can be shown to be anything but based on
what I have seen pled [sic].” In response, Plaintiffs‟ counsel asserted that Washington
Mutual‟s status as a bona fide encumbrancer was only relevant if Berry‟s deed to the
Income Property was deemed voidable, rather than void. Counsel further contended that,
under several theories pleaded in the complaints, the deed was wholly void, thereby
nullifying Washington Mutual‟s subsequently obtained deed of trust to the property. The
trial court rejected the argument:
PLAINTIFF‟S COUNSEL: It‟s undisputed if you have a forged deed, the
deed is void.

THE COURT: No, it‟s not. It‟s voidable it‟s a voidable deed in this
particular set of circumstances and that seems to be in accord with the
holding in the Fallon versus Triangle Management case. It‟s not void, it‟s
voidable.

PLAINTIFF‟ COUNSEL: It‟s my understanding that if we won based on

undue influence, it would be voidable. But if it‟s a forged deed, it‟s void to
the world, including all subsequent encumbrancers.

THE COURT: How would Washington Mutual have any idea that this is a
forged deed? How would they know? How are they going to know that
they can‟t rely on the recorded documents?

5
Washington Mutual‟s demurrer was filed in relation to the Plaintiffs‟ second
amended complaints. The record indicates that the trial court had previously sustained
demurrers against the Plaintiffs‟ first amended complaints with leave to amend. The
record does not contain any documents describing the basis for the court‟s ruling.

5
 ....

I don‟t know of any authority that puts . . . responsibility onto the bank . . .
to go beyond a recorded deed. And in light of the holding in the Fallon
case . . . I am sustaining the demurrer without leave to amend as to all
causes of action. And I am stating the basis of my sustaining the demurrer
on the record. I am not going to be sending out any other rulings.

Three weeks after the hearing, the court entered its orders sustaining Washington
Mutual‟s demurrer to each complaint with prejudice and dismissing Washington Mutual
Bank from both cases. Plaintiffs timely appealed the judgments.

DISCUSSION
A. Standard of Review
“In reviewing the sufficiency of a complaint against a general demurrer, we are
guided by long-settled rules. „We treat the demurrer as admitting all material facts
properly pleaded, but not contentions, deductions or conclusions of fact or law.
[Citation.] We also consider matters which may be judicially noticed.‟ [Citation.]
Further, we give the complaint a reasonable interpretation, reading it as a whole and its
parts in their context. [Citation.] When a demurrer is sustained, we determine whether
the complaint states facts sufficient to constitute a cause of action. [Citation.] And when
it is sustained without leave to amend, we decide whether there is a reasonable possibility
that the defect can be cured by amendment: if it can be, the trial court has abused its
discretion and we reverse; if not, there has been no abuse of discretion and we affirm.
[Citations.] The burden of proving such reasonable possibility is squarely on the
plaintiff.‟ [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Kirwan).)
The judgment must be affirmed if any one of the grounds stated in the demurrer is
well taken, regardless of the grounds cited by the trial court in reaching its decision.
(Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) However, if facts were
alleged showing entitlement to relief under any possible legal theory, the judgment of
dismissal must be reversed. (Kirwan, supra, 39 Cal.3d at p. 318.)

6
 B. The Demurrers Were Improperly Sustained
To determine whether the trial court properly sustained Washington Mutual‟s
demurrers, we must review four issues. First, we review the trial court‟s conclusion that
Washington Mutual‟s status as a bona fide encumbrancer permitted it to rely on Berry‟s
deed under the claims asserted in Plaintiffs‟ complaints. Because we conclude that the
trial court erred, we must review three additional grounds Washington Mutual raised in
its demurrers, which the trial court did not reach. These additional issues include:
(1) whether Plaintiffs‟ allegation that Berry obtained the deeds through undue influence
barred them from pleading, in the alternative, that the deeds were forged or induced
through fraudulent means; (2) whether Plaintiffs‟ claims against Washington Mutual are
time barred, and (3) whether Plaintiffs pleaded their claims with sufficient certainty and
particularity.
1. The trial court improperly ruled that Washington Mutual was entitled to
rely on Berry’s deed to the Income Property

The trial court ruled that, under the factual circumstances pleaded in each
complaint, Washington Mutual‟s status as a bona fide encumbrancer entitled it to rely on
Berry‟s deed to the Income Property. Although Plaintiffs concede that Washington
Mutual is a bona fide encumbrancer, they assert that they have pleaded claims that, if
successful, will render Berry‟s deed wholly void, thereby nullifying Washington
Mutual‟s interest in the property.
a. Summary of legal principles
Although a bona fide encumbrancer is entitled to rely on a deed that is voidable, it
will not retain title if the deed is found to be void. (Schiavon v. Arnaudo Brothers (2000)
84 Cal.App.4th 374, 378 (Schiavon); Wutzke v. Bill Reid Painting Service, Inc. (1984)
151 Cal.App.3d 36, 41 (Wutzke); Firato v. Tuttle (1957) 48 Cal.2d 136, 139 (Firato).)
More specifically, our courts have explained that “[i]f [a] reconveyance [i]s voidable, . . .
it may be subject to cancellation and rescission as against [the grantee], but could be
relied upon by a subsequent bona fide [encumbrancer]. . . .” (Schiavon, supra, 84
Cal.App.4th at p. 378.) In contrast, “[i]nstruments which are wholly void cannot

7
ordinarily provide the foundation for good title even in the hands of an innocent
purchaser.” (Firato, supra, 48 Cal.2d at p. 139.) Therefore, the Plaintiffs may only
assert superior title against Washington Mutual if Berry‟s deed is found to be wholly
void, but not if it is voidable.6
Generally, “[a] deed is void if the grantor‟s signature is forged or if the grantor is
unaware of the nature of what he or she is signing. [Citation.] A voidable deed, on the
other hand, is one where the grantor is aware of what he or she is executing, but has been
induced to do so through fraudulent misrepresentations. [Citation.]. The same rules
apply to the reconveyance of the property interest under a deed of trust as to the
conveyance of property by grant deed.” (Schiavon, supra, 84 Cal.App.4th at p. 378.)
Numerous holdings illustrate this legal distinction. For example, in Wutzke v. Bill
Reid Painting Service, Inc., supra, 151 Cal.App.3d 36, the court held that “a forged
document is void ab initio and constitutes a nullity; as such it cannot provide the basis for
a superior title as against the original grantor.” (Id. at p. 43.) Wutzke further explained
that “[s]ince a trust deed obtained by means of forgery is void, it follows that any claim
of title flowing from such a deed is void . . . [which includes] the title of a subsequent
purchaser or encumbrancer.” (Id. at p. 44.) Similarly, in Erickson v. Bohne (1955) 130
Cal.App.2d 553 (Bohne), the court ruled that a deed conveyed by an individual who
alleged to be “mentally ill and wholly incapable of transacting business” was void and
could not provide good title to a subsequent good faith purchaser. Other cases have
recognized that documents procured through “„fraud in the factum-that is, the sort of
fraud that procures a party‟s signature to an instrument without knowledge of its true
nature or contents . . . render [an] instrument entirely void.‟” (Wurzl v. Holloway (1996)
46 Cal.App.4th 1740, 1751; see also Bohne, supra, 130 Cal.App.2d at p. 556 [“„An
illustration of a void transaction is afforded where one . . . is induced to sign a deed when

6
Washington Mutual concedes it cannot assert rights if the deed is void, but argues
here that plaintiffs failed to properly plead that the deed was void. As set forth below, we
disagree.

8
in fact, he believes, because of fraudulent misrepresentations, that he is merely signing a
letter addressed to a third person‟”].)
In contrast, a deed is voidable, rather than void, when “the agreement was induced
by fraudulent misrepresentation or concealments which in no degree make the instrument
anything other than it purports to be.” (Bohne, supra, 130 Cal.App.2d at p. 556.) For
example, in Fallon v. Triangle Management Service, Inc. (1985) 169 Cal.App.3d 1103,
the plaintiff sought to void a deed that he had signed while under duress. (Id. at p. 1106.)
The court ruled that because the plaintiff was aware that the instrument he executed was a
deed, the deed was merely voidable and could be relied on by a bona fide purchaser.
Likewise, in Schiavon v. Arnaudo Brothers, supra, 84 Cal.App.4th 374, the court
concluded that a reconveyance that was initiated after the trustee received a forged
request for reconveyance was voidable, rather than void. The court explained that
although the request for reconveyance had been forged, the actual reconveyance was
signed by the trustee, who was entitled to convey the property and understood the nature
of the instrument that he had executed. The court differentiated decisions in which the
deed itself had been forged, explaining that, in the case before it, “the reconveyance was
executed by the designated trustee . . . who was aware of the consequences of the act but
was [induced by fraudulent misrepresentation].” (Schiavon, supra, 84 Cal.App.4th at p.
381.)
b. Plaintiffs have pleaded claims that would render the deed void
Plaintiffs‟ complaints assert three claims against Washington Mutual that seek to
void Berry‟s deed to the Income Property and any subsequent title flowing from that
voided deed. First, Plaintiffs seek to void the deed on the ground that Berry forged
Florence‟s signature on the grant deed. Second, Plaintiffs allege, in the alternative, that
Florence lacked the mental capacity to understand the nature of her acts when Berry
induced her to sign the deed. Third, Plaintiffs contend that Florence‟s “signature[] was
caused by the fraud of [Berry] in that [Berry] failed to explain to or inform [Florence]
regarding the nature and effect of the deeds, despite the fact that [Florence] was not

9
capable of understanding the nature and effect of the deeds due to her mental condition
and incapacity.”
Contrary to the trial court‟s ruling, Berry‟s deed would be rendered void under all
three of these factual circumstances. First, as Wutzke made clear, “a forged document is
void ab initio and constitutes a nullity.” (Wutzke, supra, 151 Cal.App.3d at p. 43.)
Second, Bohne concluded that a deed is void if the conveyor lacked the capacity to
understand the nature of his or her actions. (Bohne, supra, 130 Cal.App.2d at pp. 555-
557.) Third, several cases have held that a deed is void if the grantor signs “an
instrument without knowledge of its true nature or contents.” (Wurzl, supra, 46
Cal.App.4th at p. 1751.) As stated in Bohne, a transaction is void if “one, at the time
totally incapacitated from attending to business, is induced to sign a deed when in fact, he
believes, because of fraudulent misrepresentations, that he is . . . signing a [document that
is not a deed].‟” (Bohne, supra, 130 Cal.App.2d at p. 556.) Plaintiffs‟ first three claims
fall squarely within these holdings and, as a result, they have adequately pleaded claims
that, if proven, would nullify Washington Mutual‟s deed of trust to the Income Property.
The trial court reached a different conclusion, explaining that there were two
reasons why it believed Plaintiffs had failed to assert a cognizable claim against
Washington Mutual. First, the court asserted that, pursuant to Fallon v. Triangle
Management Service, Inc., supra, 169 Cal.App.3d 1103, Washington Mutual‟s status as a
bona fide encumbrancer entitled it to rely on Berry‟s deed. Second, it concluded that
because Berry had recorded her grant deed, Washington Mutual‟s subsequent deed of
trust to the property could not be challenged. Both of the trial court‟s conclusions are
erroneous.
First, the facts alleged in Fallon v. Triangle Management Service, Inc., supra, 169
Cal.App.3d 1103, differ significantly. The plaintiff in Fallon alleged that he had signed a
deed while under “severe mental and emotional strain caused by threats and harassment.”
(Id. at p. 1106.) In other words, the plaintiff was aware that the instrument he executed
was a deed and that it would convey title, but contended that his signature had been
procured under duress. (Ibid.) The court concluded that, under such circumstances, the

10
deed was voidable: “[i]f a grantor is aware that the instrument he is executing is a deed
and that it will convey his title but is induced to sign and deliver by fraudulent
misrepresentation or undue influence, the deed is voidable and can be relied upon and
enforced by a bona fide purchaser.” (Ibid.) In contrast, none of the Plaintiffs‟ claims
against Washington Mutual assert that Florence was aware that she was signing a grant
deed or understood the nature of her actions. Rather, Plaintiffs allege that Berry either
forged the document, in which case Florence did not convey the property at all, or,
alternatively, Florence lacked the capacity or knowledge to comprehend that the
document she signed was conveying property to Berry.
Likewise, the court‟s conclusion that a bona fide encumbrancer is entitled to rely
on a recorded deed, even if the deed is later deemed to be void, finds no support in the
law. Rather, “[t]he rule is well established that where the „conveying instrument is
void . . . it does not gain efficacy by recordation even in favor of an alleged party taking
in good faith, for value, and without notice.‟ [Citation.] . . . . „Recording places on file,
in a public place, the written evidence of a conveyance; if that conveyance was void for
want of delivery, forgery, lack of capacity in the grantor due to infancy or insanity, etc., it
is void still.‟ [Citation.]” (Wutzke, supra, 151 Cal.App.3d at p. 44, fn. 4.) Accordingly,
the trial court erred.
2. The Plaintiffs Were Entitled to Plead Alternative Facts
Washington Mutual argues that, even if the trial court‟s ruling was erroneous, the
demurrers should be sustained on the ground that the Plaintiffs‟ verified complaints
contain inconsistent factual assertions that preclude them from alleging that Berry
procured her deed through fraud. Specifically, Washington Mutual contends that because
the fourth cause of action in the Florence Sims Complaint (which is pleaded against
Berry only) alleges that Berry induced Florence to sign the grant deed through undue
influence, Plaintiffs may not allege in the alternative that the deed was forged or that

11
Florence lacked the mental capacity to sign the deed.7 Stated more simply, Washington
Mutual argues that because Plaintiffs assert in one claim that the deed was procured
through undue influence, which would render the deed voidable, we must ignore
Plaintiffs‟ alternative claim that the deed was procured through fraud, which would
render the deed wholly void.
Washington Mutual‟s argument mischaracterizes the rules of pleading. The
traditional rule is that “[w]here the exact nature of the facts is in doubt, or where the exact
legal nature of plaintiff's right and defendant‟s liability depend on facts not well known to
the plaintiff, the pleading may properly set forth alternative theories in varied and
inconsistent counts.” (Rader Co. v. Stone (1986) 178 Cal.App.3d 10, 29.) In such
situations, “[t]he facts are inconsistently alleged because the plaintiff does not know
which of the alternatives is true or can be established by the evidence.” (4 Witkin,
Cal. Procedure (4th ed. 1997) Pleading, § 364, p. 467.) “Tolerance for such pleading
rests on the principle that uncertainty as to factual details or their legal significance
should not force a pleader to gamble on a single formulation of his claim if the facts
ultimately found by the court, though diverging from those the pleader might have
considered most likely, still entitle him to relief.” (Blickman Turkus, LP v. MF
Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 886.)
In this case, the complaints plainly acknowledge that Plaintiffs pleaded alternative
factual theories because they were not present when Berry‟s grant deed was executed,
and, as a result, are uncertain what occurred. The Plaintiffs‟ first claim alleges that Berry

7
Although the Florence Sims second amended complaint asserts a claim for undue
influence, the Plaintiffs omitted the claim in the second amended complaint filed on
behalf of the Estate of David Sims. However, the original and first amended complaints
filed on behalf of David Sims did include an undue influence claim. Washington Mutual
argues that because the Plaintiffs previously asserted the claim in David Sims‟s earlier
complaints, we may, for the purposes of deciding this demurrer, read such an allegation
into his second amended complaint. Plaintiffs have not opposed this request and, as a
result, we assume, without deciding, that we may properly read an allegation of undue
influence into David Sims‟s second amended complaint.

12
forged the deed and describes circumstantial evidence that, in Plaintiffs‟ view, support
their contention.8 Plaintiffs‟ additional claims, which allege that Berry procured the deed
through other fraudulent means or undue influence, were pleaded “in the event the Court
determines that Florence signed the [grant deeds.”]. At this early stage of the
proceedings, Plaintiffs cannot be faulted for failing to know exactly what occurred in this
case. It would therefore be improper to limit Plaintiffs‟ factual allegations in the manner
Washington Mutual proposes.
Washington Mutual correctly asserts that if a party verifies a specific factual
allegation in a complaint, it cannot simultaneously plead an inconsistent fact in the same
pleading. (Alfaro v. Community Housing Imp. System & Planning Assn., Inc. (2009) 171
Cal.App.4th 1356, 1381 (Alfaro) [“[a] plaintiff may plead inconsistent counts or causes
of action in a verified complaint, but this rule does not entitle a party to describe the same
transaction as including contradictory or antagonistic facts”]; see also Beatty v. Pacific
States S. & L. Co. (1935) 4 Cal.App.2d 692, 697 (Beatty).) The rules of pleading do “not
permit the pleader to blow both hot and cold in the same complaint on the subject of facts
of which he purports to speak with knowledge under oath.” (Beatty, supra, 4 Cal.App.2d
at p. 697; see also Manti v. Gunari (1970) 5 Cal.App.3d 442, 449[“[t]o verify
inconsistent facts alleged in a complaint indicates perjury in the matter”].) In this case,
however, the operative complaints are verified only on information and belief.
Therefore, although the Plaintiffs have verified that they believe the alleged information
to be true, they have not claimed personal knowledge of the truth of the matters asserted.

8
The complaints contend that there is “strong circumstantial evidence” indicating
that Berry forged the deeds, including the fact that: (1) Berry recorded the deeds two
years after Florence purportedly signed them and seven months after Florence died;
(2) the notary‟s journal does not contain Florence‟s thumbprint, as required under
California law; (3) the notary‟s journal has an entry dated January 2, 2002, for a “Power
of Attorney for Decedent,” which is crossed out and interlineated with “Grant Deed” in a
different type of ink; (4) during deposition testimony, the notary stated that he notarized a
power of attorney and the two grant deeds on January 2, 2002, but his journal only shows
that one document was notarized on that date.

13
(See Black‟s Law Dictionary 795 (8th ed. 2004) [defining information and belief
allegations as being “based on secondhand information that the declarant believes to be
true”].) Moreover, as discussed above, the complaints repeatedly emphasize that because
the Plaintiffs are unsure exactly what occurred when the deed was executed, they have
pleaded alternative facts to encompass all possible theories of liability. As a result, the
rule barring plaintiffs from pleading inconsistent facts that are based personal knowledge
is inapplicable here.
3. Plaintiffs’ claims are not time barred under Code of Civil Procedure
Section 343 or Section 318

Washington Mutual next argues that we may affirm the trial court‟s orders
sustaining the demurrers because Plaintiffs‟ claims are barred by the statute of
limitations. “„In order for the bar of the statute of limitations to be raised by demurrer,
the defect must clearly and affirmatively appear on the face of the complaint; it is not
enough that the complaint shows that the action may be barred. [Citation.]‟ [Citations.]”
(Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.)
Washington Mutual asserts that Plaintiffs‟ claims are governed by two different
statutes of limitations. First, it asserts that the claims fall within Code of Civil Procedure
section 343, which is “a catchall provision that provides a [four year] statute of
limitations in situations where no specific limitations period applies.” (Geneva Towers
Ltd. Partnership v. City of San Francisco (2003) 29 Cal.4th 769, 773; Code Civ. Proc.,
§ 343 [“An action for relief not hereinbefore provided for must be commenced within
four years after the cause of action shall have accrued”].) Alternatively, Washington
Mutual contends that Code of Civil Procedure section 318 applies, which requires that
persons prosecuting an action to recover real property must have possessed the property
within five years before the commencement of the action.
Plaintiffs‟ claims, however, do not fall within either section 343 or 318. It is true
that “[o]rdinarily, a suit to set aside and cancel a void instrument is governed by Sec. 343
of the Code of Civil Procedure. [Citation.] However, when the gravamen of the cause of
action stated involves fraud or a mistake, Code of Civil Procedure, sec. 338(4) [now

14
subdivision (d)], is the statute of limitations applicable.” (Zakaessian v. Zakaessian
(1945) 70 Cal.App.2d 721, 725; see also Leeper v. Beltrami (1959) 53 Cal.2d 195, 207-
208; Welsher v. Glickman (1969) 272 Cal.App.2d 134, 140 [“where the right to cancel
rests on the ground of fraud or mistake, then the three-year statute of limitations (Code
Civ. Proc. § 338, subd. 4) relating to such grounds is applicable”]; Arthur v. Davis (1981)
126 Cal.App.3d 684, 691[applying section 338, subd (d) where plaintiff “claims a right to
cancel the deed to [defendant] based on justifiable mistake as to the nature of the
document”].) Section 318, on the other hand, is limited “„to cases which involve the
features of an action in ejectment . . . . The rule clearly does not apply where the case
presents a simple question of fraud or mistake, and there is no attempt to recover
possession or establish title otherwise than by nullifying the act procured by fraud or
mistake.‟” (Cella v. Cosgro (1953) 115 Cal.App.2d 816, 821; see also Gross v. Needham
(1960) 184 Cal.App.2d 446, 454.)
As discussed in detail above, the claims Plaintiffs assert against Washington
Mutual are predicated on Berry‟s fraudulent conduct. Specifically, Plaintiffs allege that
Berry either forged the document or induced Florence to sign the deed despite the fact
that she lacked the mental capacity to understand the nature of her acts. As a result, we
conclude that section 338, subdivision (d) provides the appropriate statute of limitations
Because neither of the statutes of limitation asserted by Washington Mutual apply
in this case, the demurrers cannot be sustained on the ground that Plaintiffs‟ claims are
untimely. (Turner v. Milstein (1951) 103 Cal.App.2d 651, 659 [“When a demurrer
specifies a particular section upon which the defendant relies to defeat the action, no
other sections of the statute are pleaded, and the only question is whether the cause of
action is barred by the particular section or sections mentioned in the demurrer”] [citing
and quoting Bank of San Luis Obispo v. Wickersham (1893) 99 Cal. 655, 660]; see also
Zakaessian, supra, 70 Cal.App.2d at 725 [denying demurrer on statute of limitations
grounds because defendant erroneously asserted that claim seeking to void deed on basis

15
of fraud or mistake was barred under Section 343, rather than section 338,
subdivision 4].)9
4. Plaintiffs’ Claims Contain Sufficient Factual Detail

Finally, Washington Mutual alleges that its demurrers must be sustained because
the complaints lacked certainty. Alternatively, it contends that, at a minimum, Plaintiffs‟
claims for fraud in the factum must be dismissed because they were not pleaded with
sufficient particularity. Both contentions lack merit.
a. Plaintiffs’ Complaints are not uncertain within the meaning of
Code of Civil Procedure section 430.10, subdivision (f)

Washington Mutual argues that, pursuant to Section 430.10, subdivision (f),

Plaintiffs‟ complaints must be dismissed because they are “uncertain.” (See Code Civ.
Proc., § 430.10, subd. (f) [demurrer may be asserted where “[t]he pleading is uncertain.

9
Because Washington Mutual failed to assert that section 338, subdivision (d)
applies in this case, we need not determine whether Plaintiffs‟ claims would be barred
under that section. We note, however, that the Plaintiffs have pleaded facts suggesting
that their claims would, at least for the purposes of a demurrer, be deemed timely.
Section 338, subdivision (d) requires claims to be brought within three years after “the
discovery, by the aggrieved party, of the facts constituting the fraud or mistake.” In other
words, the three year limitations period commences “when the plaintiff suspected or
should have suspected that an injury was caused by wrongdoing.” (Kline v Turner (2001)
87 Cal.App.4th 1369, 1374.) Plaintiffs‟ complaints state that “Petitioners did not
discover that title to the . . . [Residence Property] had been transferred to [Berry]” until
April of 2008, when a foreclosure notice was posted on the property. The complaint does
not contain any allegations suggesting that Plaintiffs were aware, or should have been
aware, of the fraudulent transaction at any earlier point in time. Although Washington
Mutual asserts that, under Civil Code section 1213, Plaintiffs were deemed to have
constructive notice of the deed at the time Berry recorded it, that section only applies to
subsequent purchasers and mortgagors and is therefore inapplicable here. Moreover,
while public records may impart presumptive notice under some circumstances, it not
reasonable to expect parties to actively monitor deed records to protect against the
possibility that an individual might fraudulently procure title to their property. (See
Prudential Home Mortgage Co. v. Superior Court (1998) 66 Cal.App.4th 1236, 1248.)
“„“„“[w]here no duty is imposed by law upon a person to make inquiry, and where under
the circumstances a prudent man would not be put upon inquiry, the mere fact that means
of knowledge are open to a plaintiff, and he has not availed himself of them, does not
debar him from relief when thereafter he shall make actual discovery.‟ [Citations.]”].)

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As used in this subdivision, „uncertain‟ includes ambiguous and unintelligible”].)
Washington Mutual contends that the complaints are “uncertain” because Plaintiffs have
included “allegations of contradictory facts – set forth conditionally and in the
alternative.” Pleading inconsistent facts or legal theories does not, however, render a
complaint uncertain. (See Stockton Combined Harvester & Agricultural Works v. Glens
Falls Ins. Co. (1898) 121 Cal. 167, 170-171 [rejecting contention that complaint is
uncertain where “[i]t is not claimed that there is ambiguity or uncertainty in either count
considered alone, but the claim is that the first count is rendered ambiguous and uncertain
by reason of [inconsistent] allegations found in the second count, and vice versa”].)
Rather, “a demurrer on the grounds of uncertainty‟ . . . goes only to doubt about what the
pleader means by the facts alleged.‟ [Citation.]” (Fenton v. Groveland Community
Services Dist. (1982) 135 Cal.App.3d 797, 810, disapproved of on other grounds,
Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, 328 fn. 30.)
While Plaintiffs have pleaded alternative factual theories, “the allegations are sufficiently
clear to apprise the defendant of the issues he is to meet.” (Smith v. Williams (1950) 55
Cal.2d 617, 619.)
b. Plaintiffs fraud in factum claims satisfy the particularity
requirement

Washington Mutual also argues that Plaintiffs‟ claims for fraud in factum must be
dismissed because they fail to meet the particularity requirement applicable to fraud
claims. “„“In California, fraud must be pled [sic] specifically; general and conclusory
allegations do not suffice. [Citations.] . . . [¶] “This particularity requirement
necessitates pleading facts which “show how, when, where, to whom, and by what means
the representations were tendered.”‟”‟ [Citations.] (Alfaro, supra, 171 Cal.App.4th at
p. 1384.) “One of the purposes of the specificity requirement is „notice to the defendant,
to “furnish the defendant with certain definite charges which can be intelligently met.”‟
[Citation.] Less specificity should be required of fraud claims „when “it appears from the
nature of the allegations that the defendant must necessarily possess full information
concerning the facts of the controversy,” [citation]; “[e]ven under the strict rules of

17
common law pleading, one of the canons was that less particularity is required when the
facts lie more in the knowledge of the opposite party. . . .”‟”‟ [Citation.]” (Ibid.)
The Plaintiffs‟ fraud in factum claims allege that Florence‟s signature on the grant
deed was “caused by the fraud of [Berry] during execution of the deed[] in that [Berry]
failed to explain to or inform [Florence] regarding the nature and effect of the deeds,
despite the fact that [Florence] was not capable of understanding the nature and effect of
the deeds due to her mental condition and incapacity; [Florence] did not in fact
understand or know the nature of the deeds (i.e., that by signing the deeds she would be
transferring her legal interest in the properties to [Berry]. Had [Florence] been informed
of the nature and effect of the deeds, and understood the nature and effect of the deeds,
she would not have executed the deeds.”
This description adequately details the particular nature of the alleged fraud.
Specifically, Plaintiffs allege that, at the time Florence executed the conveyance
document, Berry did not explain the nature or effect of the instrument despite the fact that
Florence lacked the capacity to appreciate their meaning. These allegations include detail
about who was involved, when it occurred, and the basic nature of the fraudulent act.
Washington Mutual contends that more information is necessary because, as
currently pleaded, the fraud in factum claim “rests upon allegations that Sheron Berry
failed to inform Florence Sims of that which is plainly evident on face of the Grant Deeds
in question – i.e., that such documents are grant deeds that convey title to real
property . . . .” Washington Mutual‟s argument overlooks the fact that Plaintiffs allege
that the fraud arose because, regardless of what the document said, Florence could not
understand their effect and Berry induced her to sign the deeds without explaining the
consequences of her acts.
To the extent Washington Mutual is asserting that Plaintiffs had a duty to
articulate exactly what Berry said to Florence at the time the deed was executed, we
disagree. As explained above, less specificity is required in cases where “the facts lie
more in the knowledge of the opposite party.” (Alfaro, supra, 171 Cal.App.4th at p.
1384.) Presumably, Berry, who was present when the Florence signed the deed,

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“possess[es] full information concerning the facts of the controversy.” (Ibid.) Plaintiffs,
on the other hand, are not certain what occurred because they were not present when the
deed was signed. Nor can they elicit that information from Florence. Plaintiffs were not
required provide more specific information.
DISPOSITION
We reverse the trial court‟s judgment of dismissal after sustaining Washington
Mutual‟s demurrer to the Second Amended Complaint filed on behalf of the Estate of
Florence Sims and the trial court‟s judgment of dismissal after sustaining Washington
Mutual‟s demurrer to the Second Amended Complaint filed on behalf of the Estate of
David Sims. The cases are remanded to the trial court for further proceedings. Appellants
are to recover their costs on appeal.

ZELON, J.
We concur:

PERLUSS, P. J.

JACKSON, J.

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