Kaufman v. Gross & Co.
| Decision Date | 08 June 1978 |
| Citation | 81 Cal.App.3d 734,146 Cal.Rptr. 706 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Bruce H. KAUFMAN, Plaintiff and Appellant, v. GROSS & CO., a California Corporation, Grorog & Co., a partnership, and the City of Los Angeles, Defendants and Respondents. Civ. 52387. |
Jonesi & Folinsky, Los Angeles, for plaintiff and appellant.
William Larr, Michael J. Matlaf, Los Angeles, J. N. Laichas, for defendants and respondents Gross & Co., Grorog & Co.
Burt Pines, City Atty., Norman L. Roberts, Asst. City Atty., James T. Adams, Deputy City Atty., for defendant and respondent City of Los Angeles.
In this action for declaratory relief, unjust enrichment and to quiet title to a certain parcel of real property, the trial court sustained without leave to amend, demurrers to the complaint and ordered the action dismissed. The plaintiff appeals from the order of dismissal.
Plaintiff's claim to the property in question rests on a grant deed in his favor executed in October of 1975 by the owner of the fee title. Defendants' claim to the same property rests on a deed executed in their favor by the Treasurer of the City of Los Angeles in December 1975. The latter deed resulted from the foreclosure of a street lighting assessment lien pursuant to Streets and Highways Code sections 5000 et seq. (the Street Improvement Act of 1911, hereafter referred to as the Act). This action was commenced in January of 1977.
The primary basis for the sustaining of the demurrer in the instant action was the statutory six months period of limitation. Streets and Highways Code section 6571 provides that any action attacking the validity of a treasurer's deed must be commenced within six months after the issuance thereof and here the complaint itself shows that the action was not commenced within six months after the issuance of the treasurer's deed.
Plaintiff, however, contends that the treasurer's deed was absolutely void because of constitutionally deficient notice of the foreclosure and sale and as a consequence the statute of limitations does not bar the action.
The complaint alleges the existence of a treasurer's deed which is valid on its face. The action then is essentially one to remove a cloud on the title to the property pursuant to Civil Code section 3412, 1 and plaintiff is required to specifically plead the factors of the invalidity of the treasurer's deed. General conclusionary allegations of the defendants' lack of title or interest will not suffice. (See 3 Witkin, Cal.Procedure (2d ed.) Pleading §§ 532-538, pp. 2181-2185.)
Further, those specific factors or defects must be "jurisdictional." If not, the six-months limitation period of Streets and Highways Code section 6571 would bar the action.
Special statutes of limitation are applicable to challenges to the validity of the deed where the alleged defects in the deed are not jurisdictional. (Sears v. County of Calaveras, 45 Cal.2d 518, 289 P.2d 425.) If, however, the alleged defects are jurisdictional, the deed is void ab initio, the statute of limitations does not run, and the deed can be challenged at any time. (Paul v. Los Angeles County Flood Control Dist., 37 Cal.App.3d 265, 112 Cal.Rptr. 274.)
From the crucial allegations of the complaint, the truth of which are admitted by the demurrer, and from matters in the file which we judicially notice, the following factual setting emerges.
Plaintiff's predecessor in title one Cochran, purchased the property in question on September 2, 1975 at a trustee's sale. Cochran in turn deeded the property to plaintiff in October of 1975.
Prior to that time the treasurer, in accordance with the Act, 2 had mailed a notice of delinquency and sale to one Fred Jenkins, the person appearing as owner on the latest records of the county assessor's office. That notice was returned by the postal authorities marked "unclaimed and unoccupied." Jenkins had in fact been dead for eight years. We are not informed as to why Jenkins still appeared as owner on the assessment roll. Presumably the ordinary taxes on the property had been paid, but this assessment lien was collected separately by the treasurer and was not part of the regular tax bill.
On July 8, 1974, the property was sold to defendants, the bond holders, for $267, the amount of the delinquency. A certificate of sale was recorded on July 22, 1974, the treasurer's deed was issued December 26, 1975, and recorded on January 7, 1976. The Act provides for a one year redemption period between the issuance of the certificate of sale and the issuance of the deed.
Neither plaintiff nor his predecessor in title ever received actual notice of any of the proceedings which culminated in the issuance of the treasurer's deed.
A defect in a tax proceeding is jurisdictional where the defect consists of nonperformance of constitutionally indispensable steps. (Ramish v. Hartwell, 126 Cal. 443, 58 P. 920; Philbrick v. Huff, 60 Cal.App.3d 633, 640, 131 Cal.Rptr. 733.)
Indispensable steps of due process are notice and opportunity to be heard. (Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865; McMaster v. City of Santa Rosa, 27 Cal.App.3d 598, 103 Cal.Rptr. 749.)
It is well established 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." (Philbrick v. Huff, 60 Cal.App.3d 633, at 641, 131 Cal.Rptr. 733, at 738; emphasis added.)
Notice of the assessment of a tax or other levy is jurisdictional. (Capital Freight Lines v. City of Sacramento, 206 Cal.App.2d 279, 23 Cal.Rptr. 752; Johnson v. Alma Investment Co., 47 Cal.App.3d 155, 120 Cal.Rptr. 503.) Further, a property owner is constitutionally entitled to adequate notice that he is delinquent in his taxes, and that the property will be sold either to the State or to a purchaser in a foreclosure sale. (Litchfield v. County of Marin, 130 Cal.App.2d 806, 280 P.2d 117; Philbrick, supra.) Conversely, notice to a property owner after sale has been made to the State or to a purchaser in a foreclosure sale is not jurisdictional. (Litchfield, supra ; Philbrick, supra.)
Hence the timing of the notice, which in turn affects the opportunity to be heard, is equally as important as the form of notice. No specific formula as to the form and quality of the required notice has been articulated by the cases.
In both his complaint and in his brief on appeal plaintiff's principal attack on the treasurer's deed is grounded on the contention that the notice provisions of the Act are themselves constitutionally defective in that they are not reasonably calculated to inform the property owner. His secondary contention is that even if the statute is facially constitutional the procedure followed in this case denied him due process of law. If he is correct in either of these positions then the defect in the deed is jurisdictional and the statute of limitations would not apply.
The Act provides for two forms of notice to the property owner (1) the mailing of the notice of delinquency and intended sale (Sts. & Hy.Code, § 6501), and (2) publication of the notice six months following the above mentioned mailing and at least 30 days prior to sale (Sts. & Hy.Code, § 6503).
The Act carries a presumption of constitutionality. (Henry's Restaurants of Pomona, Inc. v. State Bd. of Equalization, 30 Cal.App.3d 1009, 106 Cal.Rptr. 867.) Furthermore, we conclude that the Act does comport with constitutional requirements. The elements of due process which are "jurisdictional," as we have previously indicated, are notice at a proper time and in adequate form. The notice of delinquency and intended sale, as required by the Act, satisfies the timing requirement, and mailing and publication of that notice, as provided in the Act, satisfies the form requirement. The selection of the latest assessment roll as the source of the relevant information as to title was within the Legislature's prerogative.
Inasmuch as plaintiff does not allege the failure of the City to comply with the publication requirement, we must conclude that publication was duly accomplished. (McMaster v. City of Santa Rosa, supra.)
Thus we turn our attention to which form of the notice is indispensable and thus "jurisdictional." In Mullane v. Central Hanover Tr. Co., supra, the United States Supreme Court addressed the problem of whether notice by publication alone satisfied the due process requirement. The court concluded that if the name and address of the party entitled to notice was known, then a means of notice less likely than the mail to provide that notice was inadequate.
Following Mullane, however, California cases have continued to hold, in tax delinquency cases, that publication alone was sufficient and that mailing of the notice was not a jurisdictional requirement. (McMaster v. City of Santa Rosa, supra; Philbrick v. Huff, supra.)
Also, even after Mullane, the Legislature has not amended Streets and Highways Code section 6502 to remove the provision that failure of a property owner to receive actual notice shall not invalidate the foreclosure sale. That provision, however, cannot excuse a failure to comply with the requirement of due process.
We emphasize the fact that the...
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Kessler v. Atkins
...the constitutional requirements of due process. The question is not new to us. As the parties herein are aware, in Kaufman v. Gross & Co., 81 Cal.App.3d 686, 146 Cal.Rptr. 706 (a case where notices were sent to a deceased former owner and returned to the city), we rendered an opinion that t......