Chesney v. Gresham

• Decision Date: 23 November 1976
• Citation: 134 Cal.Rptr. 238,64 Cal.App.3d 120
• Court: California Court of Appeals Court of Appeals
• Parties: Robert L. CHESNEY, Plaintiff and Appellant, v. Lynn GRESHAM, as Tax Collector, etc., et al., Defendants and Respondents. Civ. 2903.

Page 238

134 Cal.Rptr. 238

64 Cal.App.3d 120

Robert L. CHESNEY, Plaintiff and Appellant, v. Lynn GRESHAM, as Tax Collector, etc., et al., Defendants and Respondents.

Civ. 2903.

Court of Appeal, Fifth District, California.

Nov. 23, 1976.

Hearing Denied Feb. 3, 1977.

Gilbert E. Moody and Vernon Johnson, Turlock, for plaintiff and appellant

Evelle J. Younger, Atty. Gen., and Charles C. Kobayashi, Deputy Atty. Gen., Sacramento, Russell M. Koch, County Counsel, and Blair H. Checketts, Deputy County Counsel, Merced, for defendants and respondents.

OPINION

GEO. A. BROWN, Presiding Justice.

Plaintiff and appellant, Robert L. Chesney, filed this action against the State of California, the County of Merced, Lynn Gresham, as Tax Collector of the County of Merced, David R. Hudgins as Assessor of the County of Merced, and John Hovannisian to set aside a tax sale and deed to the State of California and a subsequent sale and deed of the property to Hovannisian, and in the alternative for damages. The trial court granted the motion for summary judgment (Code Civ.Proc., § 437c) of the defendants State Controller, State of California, County of Merced, Lynn Gresham as Tax Collector of the County of Merced, and David R. Hudgins as Assessor of the County of Merced. ¹ Chesney has appealed from the summary judgment.

There is little conflict in the facts. However, since this is an appeal from a summary judgment, where such conflict appears in the papers submitted in support of and in opposition to the motion, we resolve those conflicts in favor of the nonmoving party (appellant herein).

Appellant purchased and obtained title to Lot 170 of the Delhi State Land Development subdivision in Merced County in February 1966, that lot being the subject of this action. He has also owned Lot 168 in the same subdivision since 1965. Contemporaneously with the purchase of Lot 170, appellant purchased Lot 169 adjoining Lot 170 and put it in the name of Emma Robbins, whom appellant married in December 1974. He has lived on Lot 169 since September 1, 1973.

At the time of the purchase of Lot 170 the assessor's office records reflected appellant's address as 427 West Palmer, Glendale, California. In early 1968 appellant moved his business from 427 West Palmer Avenue and he has never received any of the tax bills or notices with regard to Lot 170 since that date.

As to Lot 168, he received tax bills and notices at his correct address, as did Emma Robbins with regard to Lot 169.

On October 9, 1970, appellant orally notified the assessor's office of his correct address for Lot 170. The assessor's office records did not reflect such notification or change of address, and since their records continued to reflect the 427 West Palmer Street address for Lot 170 they continued to mail the tax bills and other notices to that address.

The county ad valorem taxes for the fiscal year 1967--1968 on Lot 170 were not paid, and after proper publication of notice (REV. & TAX. CODE, SS 3351², 3436) Lot 170 was sold to the state. The taxes remained delinquent for five years after the sale, and in accordance with statutory provisions Lot 170 was deeded to the state on July 3, 1973. (§§ 3361, 3365, 3517, 3518.) On October 29, 1973, Lot 170 was sold by the state at public auction to defendant Hovannisian for $9,600 plus $11 costs and was subsequently deeded to him. At the time of the sale the delinquent taxes and penalty on the property were in the amount of $2,468.43.

Prior to the deed to the state a notice of intended deed to the state was published pursuant to section 3361. The tax collector also sent a registered mail notice of the intent to deed to the state pursuant to section 3365. ³ When this notice was returned as undeliverable the tax collector checked through the records of the assessor's office for a better address but could find none.

Before the public auction resulting in the sale to respondent Hovannisian, in addition to the publication of notice thereof as required by section 3702, ⁴ the tax collector again sent registered mail notices of the sale of tax deeded property to occur at public auction on October 29, 1973. These notices were returned, and although the tax collector checked through the records of the assessor's office he could find no better address. Though not required by statute, on September 13, 1973, the tax collector also sent a notice of the intent to sell Lot 170 on October 29, 1973, to all adjoining lot owners. One of those was sent to Emma Robbins, who was listed as owner of Lot 169.

Appellant actually learned of the impending sale on Thursday, October 25, 1973, or Friday, October 26, 1973, when persons unknown to him came to Lot 170 to inspect the property in contemplation of submitting a bid thereon.

Approximately two weeks following the sale appellant attempted to pay the obligation on Lot 170 in full to the tax collector, and it was properly refused. (§ 3707; Mercury Herald Co. v. Moore (1943) 22 Cal.2d 269, 273, 138 P.2d 673.)

During his lifetime appellant had owned approximately 10 different parcels of real property in California, was aware of the annual tax assessments and knew that the taxes on Lot 170 had not been paid since he purchased the lot in 1966. This fact did not concern him because he believed the property could not be sold without actual notice to him.

Two other statutory provisions have particular relevance to the issues herein. With regard to the deed to the state, section 3518 provides:

'The deed, duly acknowledged or proved, is conclusive evidence, except against actual fraud, of the regularity of all other proceedings from the assessment of the assessor to the execution of the deed, both inclusive.'

Relative to the effect of the deed to the purchaser at the public auction, section 3711 provides:

'Except as against actual fraud, the deed duly acknowledged or proved is conclusive evidence of the regularity of all proceedings from the assessment of the assessor to the execution of the deed, both inclusive.'

The nuclei of appellant's contentions are that (1) the tax collector did not comply with the requirements of sections 3365 and 3701 because the registered mail notice was not sent to appellant's correct address which the assessor had been told about, (2) because appellant was the owner of an adjacent lot, No. 168, and the correct address appeared as to that lot, the tax collector must not have made a reasonable effort to ascertain his last address, ⁵ and (3) the validating provisions in the last paragraph of sections 3365 and 3701 and those contained in sections 3518 and 3711 are invalid as being a violation of due process inasmuch as they purport to authorize the sale of Lot 170 without actual notice to the owner, in violation of the owner's constitutional due process rights.

We start with the last point first since if the requirement of notice by registered mail 'could have been omitted by the legislative body in the first place, then a failure to comply with it is not jurisdictional . . ..' (McMaster v. City of Santa Rose (1972) 27 Cal.App.3d 598, 603, 103 Cal.Rptr. 749, 753.) To elaborate, sections 3518, 3711, 3365 and 3701 cannot cure a jurisdictional defect, that is, one which is a constitutionally indispensable step. (Miller v. McKenna (1944) 23 Cal.2d 774, 782, 147 P.2d 531; Ramish v. Hartwell (1899) 126 Cal. 443, 449, 58 P. 920; Philbrick v. Huff (1976) 60 Cal.App.3d 633, 641, 131 Cal.Rptr. 733.) Alternatively, those sections do cure a nonjurisdictional defect. (Philbrick v. Huff, supra, 60 Cal.App.3d 633, 640, 131 Cal.Rptr. 733; Nutting v. Herman Timber Co. (1963) 214 Cal.App.2d 650, 656, 29 Cal.Rptr. 754; Bell v. Towns (1949) 95 Cal.App.2d 398, 400--401, 213 P.2d 73.) Thus, Philbrick v. Huff, supra, 60 Cal.App.3d 633, 640, 131 Cal.Rptr. 733, 738, citing Nutting v. Herman Timber Co., supra, 214 Cal.App.2d 650, 656, 29 Cal.Rptr. 754 states: 'A defect in a tax proceeding is not jurisdictional where it 'has been for nonobservance of some procedural notice or other step which the Legislature, without defiance of state or federal Constitution, might have dispensed with altogether. '' (See also also Paul v. Los Angeles County Flood Control Dist. (1974) 37 Cal.App.3d 265, 273--275, 112 Cal.Rptr. 274.)

Thus, in determining whether or not failure of respondent to send tax bills and notices of delinquency to appellant's proper address is jurisdiction, it must be determined whether direct mail notice is necessary to satisfy appellant's rights to constitutional due process.

'It is, of course, a well-established principle that a person's property may not be taken from him without due process of law and that a fundamental requisite of due process is notice, reasonably calculated, under all the circumstances, to apprise the interested parties of the pendency of proceedings which could result in a deprivation of a person's property so as to afford him an opportunity to be heard. (Citations.)' (Philbrick v. Huff, supra, 60 Cal.App.3d 633, 641, 131 Cal.Rptr. 733, 738.)

In the seminal case of Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 306, 315, 70 S.Ct. 652, 657, 94 L.Ed. 865, the United States Supreme Court concluded:

'The means employed (to give notice to interested parties) must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected . . ..'

In Mullane, the court held mere publication of notice to the beneficiaries of a trust fund whose names and addresses appeared on the trustee's books was insufficient to satisfy due process. As to those beneficiaries, the trustee was required to provide notice by mail. (Mullane v. Central Hanover Tr. Co., supra, 339 U.S. at p. 318, 70 S.Ct. 652.)

The case makes clear, however, that actual notice need not be shown to satisfy...