Filed 2/28/13 Estate of Belmont CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


Estate of EILEEN S. BELMONT,                                         B239827
Deceased.
                                                                     (Los Angeles County
                                                                     Super. Ct. No. SP007406)


DAVID BELMONT,

         Petitioner and Respondent,

         v.

DIANE M. SATER, as Executrix, etc.,

         Objector and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Lawrence Cho, Judge. Affirmed as modified.
         Oldman, Cooley, Sallus, Birnberg & Coleman and David Coleman for Objector
and Appellant.
         Mitchell, Silberberg & Knupp, Peter G. Gelblum and Andrew C. Spitser for
Petitioner and Respondent.
                                             ——————————
       Diane M. Sater, executrix of the Estate of Eileen Belmont (executrix), appeals a
judgment of the probate court granting David Belmont (David) a life estate in a
condominium in Santa Monica owned by his sister Eileen Belmont (Eileen)1 pursuant to
the resulting trust doctrine. At trial, the court found that funds David contributed to the
1985 purchase of a house in Santa Monica could be traced to funds Eileen used to
purchase the condo at issue in 2003. The executrix argues that (1) David’s action is
barred by the one-year statute of limitations of Code of Civil Procedure section 366.3,2
(2) the evidence does not support David’s life estate based upon a resulting trust, and
(3) the trial court’s remedy was improper. We affirm the judgment as modified.
            FACTUAL BACKGROUND AND PROCEDURAL HISTORY
       Eileen Belmont, David’s sister, died testate April 1, 2007 in Ohio. The terms of
Eileen’s will executed February 11, 1994 provided that David would receive $50,000 and
the residue of the estate would go to The Columbus Jewish Foundation (Foundation).
       1.     Purchase of Fifth Street House
       In approximately July 1986 David purchased a house in Santa Monica, California
with some financial help from his mother, Wilma Belmont (Wilma). The purchase price
was $135,000, consisting of (1) $30,000 in cash from David; (2) a $5,000 loan David
took out, and (3) a $100,000 loan from Wilma to David. David paid back some, but not
all of the $100,000 loan from Wilma. David testified that “[i]n the beginning it was a
loan and then it turned into a gift.” In that regard, he viewed it as an advancement on his
inheritance. Title in the Fifth Street house was taken in Wilma’s name because David did
not have satisfactory credit. Wilma did not live in the house.
       David understood that the Fifth Street house was his, and at one time or another,
both Wilma and Eileen stated that the Fifth Street house belonged to David. Max Stoner,


       1As several of the parties share the same last name, to avoid confusion we refer to
them by their first names.
       2All statutory references herein are to the Code of Civil Procedure unless
otherwise noted.

                                              2
Wilma’s attorney, knew that Wilma gave David some monies with which to buy the Fifth
Street house because his credit was poor. Stoner also believed that David paid back some
of the loan to Wilma, and Wilma believed David would end up with the house although
he could not pay for it himself. Stoner understood that Wilma treated the Fifth Street
house as belonging to David, and that she wanted him to have the house. James Burden,
CPA, did Eileen’s and Wilma’s tax returns. Wilma did not take a tax deduction for the
Fifth Street house. Burden also understood that Wilma had purchased the Fifth Street
house for David, and that Eileen considered the Fifth Street house to be David’s house.3
      David lived in the Fifth Street house from 1985 until August 2000. During this
time, David paid all of the property taxes and insurance and made necessary repairs, and
paid $10,000 to remodel the bathroom.
      2.     Agreement that David Will Receive Proceeds of Fifth Street House
      In late 1993 or early 1994, Wilma became ill and was placed in a nursing home in
Ohio, near where she lived. In late 1999 or early 2000, Eileen told David that Wilma
would be coming to live with her and she needed David’s help to care for Wilma. Eileen
told David that he needed to sell his house. At that time, David, Wilma and Eileen orally
agreed that David would sell the Fifth Street house, move back to Ohio, and the proceeds
of sale could be used for Wilma’s care and the remainder would be held by Eileen for
David’s use in buying a new home in Santa Monica at a later date. David sold the Fifth
Street house based upon this agreement, and in August 2000 moved back to Ohio to care
for Wilma until her death on October 13, 2001.
      While in Ohio, David became mentally and physically disabled. David had
diabetes, heart disease, and bipolar disorder, and was unemployed. David had been on
SSI since April 2001 and collected other government assistance.
      Wilma’s will dated December 29, 1993 left the Fifth Street house to David with
the condition that he pay the taxes and other costs. However, Wilma’s trust dated

      3  Stoner and Burden’s testimony was presented through their deposition
transcripts.

                                            3
March 22, 2000, was established solely for the benefit of Eileen, and disinherited David
unless Eileen predeceased David, in which case Wilma’s estate would go to David.
Wilma told her estate lawyer that she omitted David from her estate plan because he was
not handling his money well.
         3.    Sale of Fifth Street House
         In 2000, David sold the Fifth Street house for $370,000. Wilma reported the gain
from the sale on her tax return. The net proceeds were approximately $177,000. Of this
sum, as agreed by Wilma, Eileen and David, approximately $20,000 was spent on
Wilma’s care and the remaining approximately $150,000 was deposited into an interest
bearing account in Eileen’s name. After payment of $58,000 in taxes, the balance
remaining in the interest-bearing bank account in December 2002 was $109,305.82.
         4.    Purchase of the Condo
         In January 2003, pursuant to the parties’ agreement, David used the funds on
deposit in Eileen’s account from the sale of the Fifth Street house to buy a condo in Santa
Monica for $286,000. David made a down payment of over $100,000. Due to David’s
disability and other financial problems, Eileen obtained a loan for the remaining amount
of the purchase price. Eileen told third parties that it was her intent that David live in the
condo for the rest of his life. Title was taken in Eileen’s name with the belief that she
would outlive David, and upon his death, she would move into the condo. At one point,
Eileen told her estate lawyer that she wanted to pay off the mortgage and leave the
property to David. However, Eileen died unexpectedly in April 1, 2007 at age 55. The
condo was paid in full prior to Eileen’s death.
         In the summer of 2006, David moved into the condo and has lived there ever
since.
         5.    Eileen’s Death and Probate in California of the Santa Monica Condo
         After Eileen’s death pursuant to her will executed in February 1994, she left
$50,000 to David, with the residue of the estate to go to The Columbus Jewish
Foundation. Eileen’s Will was presented for probate in Los Angeles County on


                                              4
February 14, 2008, and probate was opened by order dated April 18, 2008, naming Diane
Sater as executrix.
       6.     David’s Claim Against Eileen’s Estate
       On April 2, 2008, one year and one day after Eileen’s death, David filed a claim
against her estate, alleging breach of contract based on Eileen’s oral promise to give him
a life estate in the condo. The executrix denied the claim on May 13, 2008.
       On May 30, 2008, David filed a petition to confirm interest in real property,
asserting that pursuant to the resulting trust doctrine, the executrix of Eileen’s estate was
required to convey a life estate in the condo to him. On July 24, 2008, the executrix
objected to the petition, alleging the facts did not support a resulting trust. The objection
did not raise the statute of limitations as a defense.
       7.     Motion to Amend Pleadings
       On September 19, 2011, the executrix moved to amend her objection to David’s
petition to assert a statute of limitations defense under sections 366.2 and 336.3.4 At the
same time, the executrix moved for judgment on the pleadings, asserting that David’s
petition was barred by the one-year statutes of limitations in section 366.2 and 366.3
which apply to creditors’ claims against estates and promises to distribute estate property.
       David’s opposition asserted that petitions seeking to enforce rights under the
resulting trust doctrine are subject to the four-year statute of section 343 because



       4 Section 366.2, subdivision (a) provides: “If a person against whom an action
may be brought on a liability of the person, whether arising in contract, tort, or otherwise,
and whether accrued or not accrued, dies before the expiration of the applicable
limitations period, and the cause of action survives, an action may be commenced within
one year after the date of death, and the limitations period that would have been
applicable does not apply.”
       Section 366.3, subdivision (a) provides: “If a person has a claim that arises from a
promise or agreement with a decedent to distribution from an estate or trust or under
another instrument, whether the promise or agreement was made orally or in writing, an
action to enforce the claim to distribution may be commenced within one year after the
date of death, and the limitations period that would have been applicable does not apply.”

                                               5
resulting trusts are not based on creditor’s claims or a promise to distribute estate
property.
       On October 20, 2011, the first day of trial, the trial court ruled that under Estate of
Yool (2007) 151 Cal.App.4th 867, David’s resulting trust claim did not assert an oral
promise or agreement and therefore fell outside section 366.3 and was under section
343’s four-year statute of limitations. The trial court granted the motion to amend but
denied the motion for judgment on the pleadings.
       8.     Trial and Trial Court Ruling
       The trial court found the record was “replete with testimony from multiple sources
that it was Eileen’s intention that David be allowed to live in the Condo for the rest of his
life.” The court found “Eileen purchased the Condo . . . in 2003 as part of an express
agreement [with David made] in 2000 that he [would] sell his . . . home in Santa
Monica . . . and move back to Ohio [to care for] Wilma, and that in return Eileen
would . . . purchase [another] residence [in Santa Monica] for David”; “David testified
that Eileen told him . . . the Condo was [his] ‘[un]til the day you die’”; although the
executrix disputed the evidence, she offered no evidence contradicting Eileen’s stated
intention that David live in the condo for the rest of his life. On the other hand, the court
recognized that Wilma loaned David $100,000 for the purchase of the Fifth Street house,
title to the premises was taken in Wilma’s name, Wilma never intended to transfer title to
David, Wilma’s will provided that all assets, including the Fifth Street house, would be
devised to Eileen and specifically disinherited David, Wilma’s accountants treated the
house as if it belonged to Wilma—all facts which supported the conclusion that Wilma
did not give the Fifth Street house to him.
       Nonetheless, the court found David’s $30,000 investment in the Fifth Street house
had appreciated by the time the Fifth Street house was sold in 2000; after its sale, Eileen
opened a separate bank account into which at least $150,000 was deposited, left
untouched, and not used until the 2003 purchase of the condo. Although these proceeds
could not be definitively traced to the sale of the Fifth Street house, the court found the


                                              6
timing of the deposits and withdrawals supported the conclusion the funds were held for
David.
         The court concluded that: (1) there was an agreement between David and Eileen
formed in 2000 that David would sell the Fifth Street house and move back to Ohio to
help Eileen care for Wilma, and the proceeds of the sale of the Fifth Street house would
be used to buy another residence for David in Santa Monica; (2) David and Eileen
performed their promises under this agreement, and purchased the condo in 2003;
(3) David contributed a minimum of $30,000 to the condo purchase; and (4) Eileen’s
intention at the time of the purchase of the condo was that David reside in it for the rest
of his life. Therefore, the court held there was a resulting trust to provide David a life
estate in the condo.
         The court ordered the executrix to take the necessary steps to provide David with a
life estate in the condo, and upon David’s death, transfer the remainder interest to the
Foundation.
                                        DISCUSSION
         The executrix argues that (1) section 366.3 applies to express and resulting trusts;
(2) section 366.2 also bars David’s action; (3) the evidence does not support a resulting
trust; (4) the trial court should have ordered the executrix to execute a life estate deed in
David’s favor and a remainder deed in the Foundation’s favor.
I.       The Four-year Statute of Section 343 Applies
         A.     Resulting Trusts
         “When a transfer of real property is made to one person, and the consideration
therefor is paid by or for another, a trust is presumed to result in favor of the person by or
for whom such payment is made. ‘The trust that is “presumed to result” from this
situation is termed a “resulting trust”; its purpose is to enforce the intentions of the
parties.’” (In re Marriage of Ruelas (2007) 154 Cal.App.4th 339, 342.) A resulting trust
“arises by operation of law, without an expressed intent, and . . . the resulting trustee has
no duty other than to transfer the property to the person entitled.” (Ibid.)


                                               7
       Where the resulting trust involves real property, the presumption of Evidence
Code section 662 that “[t]he owner of the legal title to property is presumed to be the
owner of the full beneficial title [and] [t]his presumption may be rebutted only by clear
and convincing proof” comes into play. “Under [this] ‘form of title’ presumption, the
description in a deed as to how title is held presumptively reflects the actual ownership
status of the property.” (In re Marriage of Fossum (2011) 192 Cal.App.4th 336, 344.)
The presumption is overcome “by evidence of an agreement or understanding between
the parties that the title reflected on a deed is not what the parties intended.” (Id. at
p. 345.) By establishing a resulting trust, a party may overcome the presumption of
Evidence Code section 662. (See Lloyds Bank California v. Wells Fargo Bank (1986)
187 Cal.App.3d 1038, 1044–1045.)
       The applicable statute on a claim of resulting trust is the four-year statute of
section 343. The statute does not begin to run until demand has been made on the trustee
and the trustee refuses to account for the property or convey it. (Estate of Yool (2007)
151 Cal.App.4th 867, 875.)
       B.     Section 366.2
       In Estate of Yool, supra, 151 Cal.App.4th 867, the decedent held real property in
her name to facilitate financing for her daughter. The decedent gave no consideration for
the property and never intended to acquire a beneficial interest in it. (Id. at p. 871.)
Estate of Yool held that the one-year statute of section 366.2 did not apply to the resulting
trust in which the property was held. (Estate of Yool, at p. 875.)
       Estate of Yool noted that the statute referred to “liability of the person,” thus
requiring the decedent to be personally liable to the claimant for the statute to apply. A
claim for the imposition of a resulting trust was not a claim upon which the decedent
would be personally liable because personal liability required that the claimant be able to
seek satisfaction of the debt from the assets of the decedent. By definition, a resulting
trust did not and could not contain assets of the decedent. “[T]he [resulting] trustee holds
title, but does not own the property in question, [and thus] there is no issue of personal


                                               8
liability or resort to the trustee’s assets. A resulting trust arises by operation of law
[citation] and does not implicate the personal liability of the purported trustee. Rather,
the trustee’s sole purpose is to hold or convey the property according to the beneficiary’s
demands.” (Estate of Yool, supra, 151 Cal.App.4th at pp. 875–876.)
       In further support of its conclusion, Estate of Yool observed that the legislative
history of section 366.2 made clear that it applied to debts, namely, claims resulting from
the relationship between debtor and creditor. In addition, by its nature, the resulting trust
at issue in Estate of Yool had not yet been repudiated at the time of the decedent’s death
and hence no cause of action had accrued. “The mere lapse of time, without repudiation,
does not affect the beneficiary’s rights.” (Estate of Yool, supra, 151 Cal.App.4th at
p. 876.)
       C.      Section 366.3
       Section 366.3, by its terms, generally applies to express promises made by a
decedent to award an individual an asset or a sum of money from the decedent’s estate.
(See Maxwell-Jolly v. Martin (2011) 198 Cal.App.4th 347, 359–360; Ferraro v.
Camarlinghi (2008) 161 Cal.App.4th 509, 555 [section 366.3 intended “to reach any
action predicated upon the decedent’s agreement to distribute estate or trust property in a
specified manner”].) Thus, section 366.3 applies to a decedent’s oral agreement to leave
cohabitant life estate in shared home (McMackin v. Ehrheart (2011) 194 Cal.App.4th
128, 135); a decedent’s written promise to leave house to neighbors who cared for him in
final years (Estate of Ziegler (2010) 187 Cal.App.4th 1357, 1360–1361); a decedent’s
oral promise to stepdaughter of half of the marital residence he had shared with her
predeceased mother (Stewart v. Seward (2007) 148 Cal.App.4th 1513, 1516, 1522–
1523); and a husband’s promise in written marital settlement agreement to establish a
trust to continue paying spousal support to his ex-wife if he predeceased her (Embree v.
Embree (2004) 125 Cal.App.4th 487, 490.) No case has analyzed whether section 366.3
applies to resulting trusts.




                                               9
       D.     Analysis
       Whether either section 366.2 or 366.3 bars David’s claim is a legal issue which we
review de novo. (Stoltenberg v. Newman (2009) 179 Cal.App.4th 287, 292.)
       Here the executrix argues that section 366.3 applies here because it expressly
applies to “trusts” and does not differentiate between express and resulting trusts, and
because David argues that he is entitled to a distribution of a life estate from Eileen’s
estate by virtue of an oral trust agreement with her, his claim is squarely within the
statute. Further, under Estate of Ziegler, supra, 187 Cal.App.4th 1357, she argues
David’s claim fails because there the claimant similarly attempted to argue his claim did
not apply to property of the estate because his interest vested immediately upon the death
of the decedent, yet the court found a claim for a distribution of a life estate is subject to
366.3. In addition, the executrix argues section 366.2 bars David’s claims because Eileen
considered the condo to be her property, thus repudiating David’s claim before her death
and starting the running of the statute during her lifetime.
       We reject the executrix’s arguments because they are all based upon the premise
that David was seeking a distribution of property of the estate. For the same reasons that
Estate of Yool declined to apply section 366.2 to resulting trusts, section 366.3 likewise
does not apply. Section 366.3 applies to “a promise or agreement with a decedent to
distribution from an estate or trust or under another instrument.” The operative words are
“distribution from an estate”: a resulting trust is not a distribution from an estate. Here,
as discussed post, the evidence supports the conclusion that title to the condo, while
legally vested in Eileen, was held in trust for David under the resulting trust doctrine.
Thus, David’s claim sought to compel Eileen’s executor to convey what he already
owned in accordance with David and Eileen’s oral trust agreement—namely, David’s life
estate. The fact that the parties had an agreement for the creation of David’s life estate
does not bring his claim within the language of section 366.3 referring to “agreements.”
Rather, as the resulting trust doctrine acknowledges, it is axiomatic that the property held




                                              10
in the resulting trust resides there based upon the agreement of the parties, and
particularly based on the intent of the transferee to hold the property for another.
       Further, the cases on which the executrix relies that apply section 366.3 do not
change this result, as they all involved claims to property of the decedent’s estate, not
resulting trusts. In Estate of Ziegler, supra, 187 Cal.App.4th 1357, the decedent gave a
neighbor a letter signing over his home to the neighbor in exchange for the neighbor’s
provision of care and meals. (Id. at p. 1361.) More than one year after the decedent’s
death, the neighbor filed a creditor’s claim for services rendered on a quantum meruit
theory and breach of contract for the value of the house. (Id. at p. 1362.) The Ziegler
court found the neighbor’s claims barred by section 366.3 because the claim was
indistinguishable from a contract to make a will, and was a promise to transfer property
on death. As the contract could only be performed after death by conveying property that
otherwise belonged to the decedent’s estate. (Id. at p. 1365.) To the contrary here, David
does not seek conveyance of property that otherwise belongs to Eileen’s estate; rather, he
seeks conveyance of a property interest that belongs to him which is held in Eileen’s
name. In McMackin v. Ehrheart, supra, 194 Cal.App.4th 128, the plaintiff lived with the
decedent, who was intestate, for approximately 17 years until her death in 2004. The
plaintiff remained in the house and three years later, the decedent’s heirs attempted to
evict him. Plaintiff filed a claim seeking a life estate in the decedent’s home. (Id. at
p. 131.) The court, applying Ziegler, concluded the plaintiff’s claim for a life estate,
given in consideration for “‘love, affection, care and companionship,’” arose from “a
decedent’s promise of a distribution from an estate, and accordingly, is a claim for
distribution within the meaning of section 366.3.” (McMackin, at p. 139.) Here, because
McMackin did not involve a resulting trust, the only similarity of David’s claim with the
claim in McMackin is that David also seeks a life estate. However, David’s life estate
claim is not based upon the assertion that Eileen promised to leave him the condo; rather,
it is based upon his monetary contributions to the Fifth Street house, tracing those funds




                                             11
to the condo purchase, and Eileen’s intent in holding the condo for him although she took
title in her own name.
II.    Sufficient Evidence of Resulting Trust Through Tracing
       The executrix argues that the evidence does not support a resulting trust because
(1) Wilma never agreed that David would own the Fifth Street house in perpetuity, thus
negating the required element of a resulting trust in the sales proceeds; (2) David’s
$30,000 contribution to the Fifth Street house was made after its purchase; (3) the trial
court did not explain how this investment became the much larger sum of money Eileen
placed on deposit on his behalf; (4) the hearsay testimony of Stoner and Burden
regarding Wilma’s intentions with respect to the Fifth Street house, to which the
executrix objected cannot support the finding that there was a gift of Wilma’s interest to
David, and no hearsay exception applies. David counters that he did not have to prove a
resulting trust interest in the Fifth Street house, but the condo; on that point, he
established an agreement with Wilma and Eileen that the proceeds of sale of the Fifth
Street house would be held for him by Eileen in a separate account.
       A.     Standard of Review
       In a bench trial, “the trial court is the sole arbiter of the facts” and our review of its
factual findings is limited. (Navarro v. Perron (2004) 122 Cal.App.4th 797, 803.)
“‘“[A]ny conflict in the evidence or reasonable inferences to be drawn from the facts will
be resolved in support of the determination of the trial court decision.”’” We “‘“consider
all of the evidence in the light most favorable to the prevailing party, giving it the benefit
of every reasonable inference, and resolving conflicts in support of the [findings].
[Citations.]” [Citation.] We may not reweigh the evidence and are bound by the trial
court’s credibility determinations. [Citation.] Moreover, findings of fact are liberally
construed to support the judgment.’” (Cuiellette v. City of Los Angeles (2011) 194
Cal.App.4th 757, 765.) “The substantial evidence standard of review applies to both
express and implied findings of fact made by the court in its statement of decision.
[Citation.]” (Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 501.)


                                               12
       B.      Tracing
       “[A] resulting trust, like an express trust, is based on the manifestation of intention
of the person creating it.” (Majewsky v. Empire Const. Co., Inc. (1970) 2 Cal.3d 478,
485.) “[A] ‘resulting trust is not founded on the simple fact that money or property of
one has been used by another to purchase property. It is founded on a relationship
between the two, on the fact that as between them, consciously and intentionally, one has
advanced the consideration wherewith to make a purchase in the name of the other. The
trust arises because it is the natural presumption in such a case that it was their intention
that the ostensible purchaser should acquire and hold the property for the one with whose
means it was acquired.’ [Citations.]” (Ibid.) In Baskett v. Crook (1948) 86 Cal.App.2d
355, 362, the court stated that to establish a resulting trust, “[i]t is necessary to show that
it was the intention of the parties to create the trust. . . . The amount of money
contributed to the particular property by the claimant must definitely appear to enforce a
resulting trust in his favor.”
       Here, to claim a life estate by virtue of a resulting trust in the condo, David must
establish an interest in two properties in which title was held by other persons. Thus,
David had to show both the Fifth Street house and the condo were resulting trusts. This
he has done, even without considering the objectionable hearsay evidence from Wilma’s
accountant and attorney. David testified that he contributed a total of $35,000 to the
Fifth Street house, Wilma contributed $100,000, and that Wilma’s contribution started as
a loan and later turned into a gift or advancement on his inheritance from her,
establishing that the entirety of funds used to purchase the Fifth Street house were
David’s funds. David testified that he considered the house to be his.
       Second, the parties intended that the proceeds of the sale of the Fifth Street house
would be placed in an account for David in consideration of his return to Ohio to care for
Wilma, and upon her death, a home in California would be purchased for David using
those funds. The nearly simultaneous placement of those funds into a segregated account
and their withdrawal at the time of the purchase of the condo is sufficient evidence of


                                              13
tracing that establishes the condo was purchased with David’s monies, although title was
held by Eileen, and Eileen intended that David was the true owner of the condo.
III.   Remedy
       The executrix points out that the trial court’s remedy ordering her to give David a
life estate and to transfer the property to the Foundation on his death would require her to
keep the estate open until David’s death. She requests that we modify the judgment to
order that she execute a life estate deed in David’s favor with a remainder deed in the
Foundation’s favor. David concedes this point, and we agree.
                                     DISPOSITION
       The judgment is modified to reflect that the executrix is ordered to execute a life
estate deed in the Santa Monica condo in David Belmont’s favor, with a remainder deed
in favor of The Columbus Jewish Foundation. In all other respects, the judgment is
affirmed. David Belmont is to recover his costs on appeal.
       NOT TO BE PUBLISHED.


                                          JOHNSON, J.


We concur:


       MALLANO, P. J.


       CHANEY, J.




                                            14
