Ahmanson Bank & Trust Co. v. Tepper

Citation74 Cal.Rptr. 774,269 Cal.App.2d 333
CourtCalifornia Court of Appeals
Decision Date31 January 1969
PartiesAHMANSON BANK AND TRUST COMPANY, a corporation, Plaintiff, v. Harry W. TEPPER, Defendant and Appellant; Milton Gottlieb, Defendant and Respondent. Civ. 32255.

Young & Young and Walter H. Young, Los Angeles, for Harry W. Tepper, defendant and appellant.

Sydney J. Dunitz, Beverly Hills, for Milton Gottlieb, defendant and respondent.

AISO, Associate Justice.

Harry W. Tepper, an interpleaded defendant, appeals from a summary judgment in this interpleader action adjudging Milton Gottlieb, another interpleaded defendant, to be entitled to funds deposited into court by the interpleader Ahmanson Bank and Trust Company, a corporation, (hereafter 'Ahmanson').

Procedural Background

Ahmanson instituted this interpleader action December 5, 1963. It tendered into court a sum of $17,531.62, representing the surplus remaining from proceeds of a trustee's sale, after payment of the note secured by a trust deed on real property described as the 'West half of Lot 26, Block 16, Westgate' in Los Angeles County (hereafter 'the real property'). The defendant and appellant herein, Harry W. Tepper (hereafter 'Tepper'), and the defendant and respondent herein, Milton Gottlieb (hereafter 'Gottlieb'), along with other parties not involved in this appeal, were impleaded and required 'to interplead together concerning their respective claims' to the fund.

On June 21, 1966, Gottlieb filed his notice of motion for a summary judgment, annexing his supporting declaration (certificate) executed on June 15, 1966. On July 5, 1966, Tepper filed his opposing declaration (certificate) executed on July 1, 1966. Gottlieb apparently did not press this motion to a hearing. Instead, he filed a new notice of motion for a summary judgment on August 5, 1966, annexing thereto his supporting declaration executed on August 3, 1966. To this later declaration, Gottlieb appended as exhibits the judgment in superior court case No. 752,157 and various recorded documents constituting the chain of title to the funds interpleaded and to Tepper's claimed ownership of the real property as of the time of the trustee's sale. The notice further stated that the motion would be based upon the supporting declaration and the file in the action. 1

Tepper actually filed no declaration in opposition to Gottlieb's new declaration annexed to his notice of motion filed on August 5, 1966. Only an unsigned copy of his earlier declaration, filed July 5, 1966, was attached to his counsel's memorandum of points and authorities in opposition to Gottlieb's motion.

Gottlieb's motion for summary judgment was granted by a minute order entered October 4, 1966. Tepper's subsequent motions to 'vacate minute order and judgment and re-hear motion for summary judgment' and for a new trial were all denied on January 3, 1967, except for the portion granting a rehearing. 2 The trial court then signed and filed the summary judgment, entered January 5, 1967, which adjudged that Gottlieb was entitled to $16,910.92 of the funds deposited in court ($17,531.62, less $120.70 costs and $500.00 attorneys' fees allowed to the interpleader Ahmanson) and that all other defendants take nothing.

Tepper appeals from the judgment entered January 5, 1967, and from the order of October 4, 1966, which granted Gottlieb's motion for a summary judgment. The attempted appeal from the order of October 4, 1966, must be dismissed as the order itself is not appealable. (See, e.g., Saunders v. New Capital for Small Businesses, Inc. (1964) 231 Cal.App.2d 324, 326--327, 41 Cal.Rptr. 703; Integral Land Corp. v. Anderson (1944) 62 Cal.App.2d 770, 771, 145 P.2d 364; and cf. Artucovich v. Arizmendiz (1967) 256 Cal.App.2d 130, 131--132, 63 Cal.Rptr. 810.)

Issue on Appeal

The respective claims to the fund, which Gottlieb and Tepper assert, are both equitable in character, rather than legal. Gottlieb bottoms his claim on a 'default' judgment obtained against Tepper's predecessors in title in Gottlieb v. Aero Properties, Inc. (Los Angeles Superior Court, No. 752,157), which awarded him the sum of $30,880.00 on an unpaid promissory note as against A. L. Littman, also known as Alfred L. Littman (hereafter 'Littman'), and which adjudicated against Littman and his wife Charlotte A. Littman (hereafter 'Charlotte') that the conveyance of the real property from Littman to his wife Charlotte on April 7, 1960, was fraudulent and that the conveyance be 'set aside and made a nullity.'

Since the appeal is from a summary judgment, we inquire whether Tepper's declaration in opposition to Gottlieb's declarations on file and matters subject to judicial notice raise any triable issue of fact requiring resolution before Gottlieb's claim to the fund may be declared to be superior as a matter of law to that of Tepper. (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785.)

The Facts

The following facts are established as uncontroverted by the respective declarations and matters subject to judicial notice referred to in the declarations of either or both Gottlieb and Tepper a. Chronology of events. Despite some repetition that might result, we set forth a chronology of the events to assist easier comprehension of the maze of transactions involved in this case.

1. December 5, 1958. Harry S. Zane executed and acknowledged grant deed of the real property to Littman.

2. January 29, 1959. Littman acknowledged trust deed on the real property, dated January 21, 1959, to Zane to secure $30,000.00 note dated January 21, 1959.

3. February 19, 1959. Zane assigned note and trust deed (supra) to William Lawless.

4. February 25, 1959. Documents (items 1, 2 and 3, supra) were recorded.

5. August 31, 1959. Littman guaranteed note from Aero-Properties, Inc. to Gottlieb, which is note sued upon in Gottlieb v. Aero Properties, Inc., et al., case No. 752,157 (infra).

6. April 7, 1960. Littman executed, acknowledged, and recorded grant deed conveying the real property to his wife Charlotte.

7. August 17, 1960. Gottlieb filed Gottlieb v. Aero-Properties, Inc., et al., L.A. Superior Court No. 752,157, to recover on corporate note against Gottlieb and have his conveyance to Charlotte (item 6, supra) set aside as fraudulent conveyance. Lis pendens also recorded.

8. September 29, 1960. Charlotte granted to Norman-Allen Corporation (a Nevada corporation, hereafter 'Norman-Allen') and grant deed recorded. Littman quitclaimed to Norman-Allen; quitclaim deed recorded.

9. February 28, 1962. Quitclaim deed from Norman-Allen to Norman-Allen Corporation, as trustee for Globe Service Co., dated February 12, 1962, recorded.

10. April 26, 1962. William Lawless (see item 3, supra) assigned note and trust deed to Tepper.

11. October 15, 1962. Three quitclaim deeds to Tepper 'in lieu of foreclosure' executed by Norman-Allen, Norman-Allen, trustee for Globe Service Co., and Littman and Charlotte.

12. January 23, 1963. Tepper executed Declaration of Default on note (item 10, supra).

13. January 28, 1963. Assignment from Lawless to Tepper (item 10, supra) recorded.

14. November 20, 1963. Ahmanson conducted trustee's sale, obtaining $45,500.00, leaving surplus of $17,531.62 interpleaded.

15. November 27, 1963. Quitclaim deeds 'in lieu of foreclosure' to Tepper from Norman-Allen, Norman-Allen trustee for Globe Service Co., and Littman and Charlotte (item 10, supra) recorded.

16. December 5, 1963. Ahmanson filed this action interpleading, among others, Gottlieb and Tepper, and tendering deposit of $17,531.62 (item 14, supra) into court.

17. March 16, 1964. Gottlieb's judgment in case No. 752,157 entered.

18. October 4, 1966. Gottlieb's motion for summary judgment in this case granted.

19. January 5, 1967. Summary judgment declaring Gottlieb entitled to $16,910.92 (see items 14 and 16, supra) entered.

20. February 24, 1967. Tepper filed notice of appeal.

b. Source of the interpleaded funds. Littman purchased the real property from a Henry S. Zane, a single man, on December 5, 1958. The grant deed was dated December 5, 1958, and recorded on February 25, 1959. As part of this transaction, Littman gave back a note for $30,000.00 payable to Zane's order and a trust deed on the real property securing the note. This trust deed, dated January 21, 1959, and acknowledged January 29, 1959, was recorded on Frbruary 25, 1959. Zane assigned the note and trust deed to one Lawless, 3 by an assignment which was recorded along with the trust deed on February 25, 1959.

Lawless subsequently assigned the note and trust deed to Tepper on April 26, 1962. This assignment was not recorded until January 28, 1963, on which date Tepper 4 notified Ahmanson that it was the successor trustee under the trust deed and that the April 3, 1962, and all subsequent payments due and payable on principal and interest on the note were in default, in the amount of $24,685.63 plus interest from March 3, 1962.

Ahmanson then conducted a trustee's sale on November 20, 1963, selling the real property for $45,500.00 to an Alfred El Semoussi and his wife. After deducting the costs of sale and paying Tepper what was due to him as the holder of the note secured by the trust deed, there remained the excess of $17,531.62, which Ahmanson later paid into court.

c. Basis of Gottlieb's claim. Littman in receiving the conveyance of the real property from Zane took title in his sole name, i.e., 'Alfred J. Littman, a married man.' By a grant deed dated and recorded April 7, 1960, Littman purported to convey the real property to Charlotte as her sole and separate property. The deed recited that the consideration was less than $100 and had no I.R.S. stamps affixed to it.

Some time prior to this conveyance to Charlotte, Littman had guaranteed payment of a note for $24,670.00 payable to Gottlieb. The maker of the note was the 'Aero Properties, Inc.,'...

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