Carloss v. Cnty. of Alameda

• Decision Date: 12 November 2015
• Docket Number: A143531
• Court: California Court of Appeals Court of Appeals
• Parties: Jerome CARLOSS, Plaintiff and Appellant, v. COUNTY OF ALAMEDA, Defendant and Respondent.

242 Cal.App.4th 116

194 Cal.Rptr.3d 784

Jerome CARLOSS, Plaintiff and Appellant,

v.COUNTY OF ALAMEDA, Defendant and Respondent.

A143531

Court of Appeal, First District, Division 3, California.

Filed November 12, 2015

Counsel for plaintiff and appellant: PETTERSEN & BARK, William D. PettersenCounsel for defendant and respondent: Donna Raylene Ziegler, County Counsel, Farand Kan, Deputy County Counsel, Olivia C. White, Associate County Counsel

Opinion

Pollak, Acting P.J.

The County of Alameda (county) seized and sold residential property that was in default on property taxes. The sale proceeds exceeded the tax delinquency. Jerome Carloss, the son of the deceased former resident of the property, filed a claim with the county for the excess proceeds under a statute that permits a “person with title of record” to tax-defaulted property or the person's successor to claim sale proceeds in excess of the tax liability. (Rev. & Tax.Code, § 4675, subds. (a), (e)(1)(B), (f).)¹Carloss's mother was listed as the property owner in county tax records and had lived in the house for over 50 years. The county denied the claim because no deed appears in the county records and the county concluded that title of record can be established only with a recorded deed. Carloss filed this action to challenge the county's decision.

The trial court sustained a demurrer without leave to amend and dismissed the action. The court found (1) the action is time-barred because it was not filed within 90 days of the county's administrative decision and (2) the complaint fails to state a claim for relief because there is no right to excess proceeds from a tax-default sale in the absence of a recorded grant deed. (§ 4675, subds. (e)(1)(B), (f), (g).) We conclude the action is timely and that a recorded grant deed is not the exclusive means of proving a person's title of record. While such a deed is the normal means of establishing title of record, and proving title may be difficult in the absence of such a deed, in unusual circumstances such as Carloss has alleged here, title of record may be established by recorded instruments of various types, the assessor's records, and testimony that, as a whole, proves that the claimant or the claimant's predecessor in interest held title of record. Allegations in the complaint that “many documents were recorded in the chain of title” evidencing ownership that the county failed to consider sufficiently state a claim. We shall therefore reverse the judgment.

Statement of Facts and Administrative Proceedings

The statement of facts is based on Carloss's first amended complaint and documents from the administrative proceeding of which the trial court properly took judicial notice.²

Carloss's mother lived in a house on Oakland's Magnolia Street for over 50 years and regularly paid property taxes to the county during most of that period. She failed to pay taxes in the final years of her life and, in March 2011, the county sold the property at auction to collect the unpaid taxes. The mother died soon after the sale. After satisfaction of all outstanding amounts due the county, there was a balance of $64,995 from the sale.

Carloss filed a claim with the county for the excess proceeds, as did other family members. (§ 4675.) In August 2013, the county held an evidentiary hearing to evaluate the claims. Carloss testified that his father, mother and mother's brother, Jefftean Anderson, Sr., owned the property as joint tenants until 1967, when Anderson died and Carloss's parents succeeded to ownership. Carloss's father died in 1988, leaving Carlos's mother as the sole owner. Carloss claimed he was his mother's heir.

No grant deed was produced. Carloss alleges that “no actual recorded deed can be located in the public records because of a probable mis-indexing by the County of Alameda at the time of acquisition.” As evidence of ownership, Carloss submitted a recorded 1952 deed of trust with Carloss's parents and Anderson as the grantors and Willie and Bennie Steward as beneficiaries and a recorded 1985 affidavit of death of joint tenant (Anderson) referencing a deed of reconveyance in 1956 from the Stewards. The hearing officer also reviewed an assessor's office history, listing Carloss's parents and Anderson as owners in 1969 and Carloss's parents as owners in 2010.

In September 2013, the hearing officer issued a written decision denying all claims upon finding a failure of proof that any claimant was a “party of interest in the property” entitled to excess proceeds. (§ 4675, subd. (a).) A party of interest is statutorily defined as “lienholders of record” and persons “with title of record.” (id. subd. (e)(1).) The heirs to a person with title of record are also entitled to excess proceeds. (id. subd. (f).) The hearing officer found that no claimant produced a grant deed establishing ownership in themselves or a predecessor and, therefore, no title of record as statutorily required. The 1952 deed of trust and reference to a 1956 reconveyance did not provide the necessary proof, the hearing officer concluded. “[A] deed of trust, although customarily and properly executed only by owners, does not create or bestow any ownership, whether in the grantor, grantee or beneficiary; it is a ‘security instrument,’ like a mortgage. A reconveyance of a deed of trust similarly establishes no ownership.” (Italics omitted.) The assessor's tax records listing Carloss's mother as the property owner and assessing her taxes were also found insufficient proof of title of record. “The assessor's records can be helpful, and the fact that someone is considered an assessee, when combined with some recorded evidence which by itself is ambiguous about whether title was conferred (e.g., a quitclaim deed), can tip the evidentiary scale. However, such records do not themselves constitute ‘of record’ for purposes of the excess proceeds statute.”

The hearing officer's decision is dated September 23, 2013. The decision was mailed to Carloss with a cover letter dated October 17, 2013, indicating that any appeal must be made within 30 days of the date of the notice. A timely appeal was filed on November 6, 2013, when Carloss served notice of appeal upon the clerk of the county board of supervisors. The appeal was resolved by the county administrator who mailed to Carloss's attorney a letter dated December 5, 2013, affirming the decision. Carloss alleges he is “unable to ascertain when such decision was served, as it was accompanied by no proof of service whatsoever.” He further alleges “that such notice was served by mail no sooner than December 10, 2013.” This action was filed on March 13, 2014.

Discussion

1. Standards governing review of demurrers.

“On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled.” (Aubry v. Tri–City Hospital Dist.(1992) 2 Cal.4th 962, 966, 9 Cal.Rptr.2d 92, 831 P.2d 317.) “ ‘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.” (Blank v. Kirwan, supra,39 Cal.3d at p. 318, 216 Cal.Rptr. 718, 703 P.2d 58.)

“Questions concerning whether an action is barred by the applicable statute of limitations are typically questions of fact.” (Sahadi v. Scheaffer(2007) 155 Cal.App.4th 704, 713, 66 Cal.Rptr.3d 517.) “ ‘A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] 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.’ ” (Guardian North Bay, Inc. v. Superior Court(2001) 94 Cal.App.4th 963, 971–972, 114 Cal.Rptr.2d 748.)

2. The county failed to establish the action is time-barred.

An action to review the decision of the board of supervisors on a claim for excess proceeds from a default tax sale “shall be commenced within 90 days after the date of that decision of the board of supervisors.” (§ 4675, subd. (g).) The county contends the date of decision was the date of the county administrator's letter—December 5, 2013—and that the action filed 98 days later—on March 13, 2014—was untimely. Carloss contends the date of decision is the date the letter was mailed, which he alleges was no sooner than December 10, 2013, and that the 90–day statute of limitations was extended five days for service by mail (Code Civ. Proc., § 1013, subd. (a)).

Carloss calculates that he had 95 days from December 10, 2013, to file his action, which he met by filing on the 93th day. The court accepted the county's position and ruled the action time-barred, finding “[b]y its clear terms,” section 4675, subdivision (g)“begins to run from the date of the decision, not from service of the decision.”

We conclude that the 90–day statute begins to run from the date the decision is mailed. The statute states, without elaboration, that an action “to review the decision of the board of supervisors shall be commenced within 90 days after the date of that decision.” (§ 4675, subd. (g).) The statute does not specify if the “date of that decision” is the date the decision is written or the date the decision is promulgated, whether by mail or other means. The ambiguity in the statute is...