Fidelity National Title Insurance v. Miller

Fidelity National Title Insurance Company appeals summary judgment favoring defendant Clayton L. Miller on its complaint for breach of warranty and common counts. We reverse the summary judgment because the record discloses numerous triable factual issues.

I

Facts

In reviewing the propriety of summary judgment, we must accept the evidence and inferences most favorable to Fidelity. (Hepp v. Lockheed-California Co. (1978) 86 Cal.App.3d 714, 717-718 [ 150 Cal.Rptr. 408 ].) Applying that standard, the evidence shows: Miller owned Coronado property. In 1953 Miller encumbered the property with a restrictive covenant granting neighbor Whitby a “view easement.” The Whitby restrictive covenant was recorded. Years later Miller wanted to convey the property to his daughter and son-in-law, Jean and Raymond Gazzo (together Gazzo). Miller told Gazzo he had given Whitby a view easement. Apparently Miller was unsure whether Whitby had recorded her restrictive covenant. In 1986 Gazzo and Miller opened escrow. Fidelity issued a preliminary report not mentioning the Whitby encumbrance. Gazzo asked Fidelity whether the property was encumbered by a restriction not appearing on the…

The trial court granted summary judgment in favor of Miller on the basis Fidelity had no greater rights than Gazzo in whose place they stood on a theory of equitable subrogation. Since Gazzo was fully informed of the possible existence of the Whitby easement prior to the completion of the sale, the trial court correctly found no implied covenant of title on the basis of the grant deed.

The parties to the actual transaction diligently sought to determine if the Whitby easement had been perfected. They sought assistance from an escrow company and Fidelity to make that determination. Fidelity was negligent in its search. It failed to find a recorded easement which had been on the books for decades. It is patent from this record the parties, both Gazzo and Miller, relied on Fidelity’s negligent representations and not any implied covenants in the grant deed.

*1177 The focus of the reliance is best understood when one realizes it was Gazzo, not Miller, who undertook to work with the escrow to investigate the Whitby easement. Miller had made full disclosure to Gazzo.

In his testimony Gazzo described in detail his efforts through the escrow company to have Fidelity investigate the…

Plaintiff Fidelity National Title Insurance Company appeals summary judgment favoring defendant Clayton L. Miller on its complaint for breach of warranty and common counts. We reverse the summary judgment because the record discloses numerous triable factual issues.

(1) In reviewing the propriety of summary judgment, we must accept the evidence and inferences most favorable to Fidelity. ( Hepp v. Lockheed-California Co. (1978) 86 Cal. App.3d 714, 717-718 [ 150 Cal. Rptr. 408 ].) Applying that standard, the evidence shows: Miller owned Coronado property. In 1953 Miller encumbered the property with a restrictive covenant granting neighbor Whitby a "view easement." The Whitby restrictive covenant was recorded. Years later Miller wanted to convey the property to his daughter and son-in-law, Jean and Raymond Gazzo (together Gazzo). Miller told Gazzo he had given Whitby a view easement. Apparently Miller was unsure whether Whitby had recorded her restrictive covenant. In 1986 Gazzo and Miller opened escrow. Fidelity issued a preliminary report not mentioning the Whitby encumbrance. Gazzo asked Fidelity whether the property was encumbered by a restriction not…