Lang v. Roché
| Decision Date | 21 December 2011 |
| Docket Number | No. B222885.,B222885. |
| Citation | 133 Cal.Rptr.3d 675,11 Cal. Daily Op. Serv. 14382,2011 Daily Journal D.A.R. 17099,201 Cal.App.4th 254 |
| Parties | Erik E. LANG, Plaintiff and Appellant, v. Warren W. ROCHÉ et al., Defendants and Respondents. |
| Court | California Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
See Cal. Jur. 3d, Enforcement of Judgments, § 185; Cal. Civil Practice (Thomson Reuters 2011) Real Property Litigation, § 4:124; 3 Cal. Transactions Forms, Business Entities, § 22:10 (Thomson Reuters 2011); Ahart, Cal. Practice Guide: Enforcing Judgments and Debts (The Rutter Group 2011) ¶ 6:722 (CADEBT Ch. 6D-7); 11 Miller & Starr, Cal. Real Estate (3d ed. 2001) § 32:73; 8 Witkin, Cal. Procedure (5th ed. 2008) Enforcement of Judgment, § 165.
Limited on Constitutional Grounds
West's Ann.Cal.C.C.P. § 701.680.
Erik E. Lang, in pro. per., for Plaintiff and Appellant.
Warren W. Roché, in pro. per., and Elena Roché, in pro. per., for Defendants and Respondents.
Do principles of equity and fairness permit the redemption of property purchased by a judgment creditor at an invalid execution sale, though the statutory scheme characterizes execution sales as “absolute”? The answer is yes. Equitable redemption is available to those whose fundamental rights have been trampled. Citizens may not be dispossessed of their property by a “creditor” executing on a judgment that is void ab initio for lack of personal jurisdiction. Deploying a void judgment to seize the property of someone who was never served with the lawsuit violates the constitutional guarantee that no person shall be deprived of property without due process of law.
Feuding former neighbors Erik E. Lang and Warren W. Roché are before this court in propria persona, in the latest installment of their lengthy dispute. In 1977, respondent Roché sold property in Topanga Canyon to appellant Lang and they became next-door neighbors. Mutual animosity and litigation ensued.
In 1995, Roché brought a defamation suit against “Eric Lang.” Roché and his attorney represented to the trial court that “Eric Lang” was nowhere to be found, although (1) appellant lived within eyesight of Roché; (2) appellant was regularly served at a post office box in prior litigation with Roché; and (3) Roché knew appellant's mailing address since 1977. With the trial court's permission, the summons was served by newspaper publication on “ Eric Lang.” “Eric Lang” is not appellant's name.
After serving process by publication on “Eric Lange,” Roché secured a default judgment for $50,000 against “Eric Lang” in 1996. Eight years later, Roché obtained a writ of execution against appellant Erik Lang. Lang first learned about the default judgment in 2003, as Roché prepared to execute on it. On November 10, [133 Cal.Rptr.3d 678]2003, Lang filed a lawsuit against Roché and Roché's attorney, seeking to void the judgment and requesting injunctive relief to prevent Roché from executing on Lang's property.
Lang failed to prevent Roché from executing on the judgment. A sheriff's sale was conducted on November 19, 2003. At the sale, Roché purchased Lang's Topanga Canyon property for $100. There were no other bidders.
This Court ruled in favor of Lang in two appeals relating to the default judgment. First, we wrote that Lang may institute an independent action in equity to set aside a default judgment that is based on constitutionally inadequate service of process. If service by publication was wrongly approved based on a misspelling of Lang's name and a false claim that he was nowhere to be found, every judicial act based on the invalid service was void ab initio for lack of personal jurisdiction. We concluded that Lang alleged a viable claim for equitable relief from a default judgment obtained in violation of his due process rights.2 In a second appeal following remand, we found that the trial court improperly demanded that Lang “prove a negative—that he was not served—instead of obliging [Roché] to prove that [Lang] was properly served.” 3
The trial court vacated the default judgment in 2008. Roché subsequently served Lang with the summons and complaint. In response, Lang successfully moved to strike the defamation suit as a Strategic Lawsuit Against Public Participation (SLAPP), and Roché's lawsuit was dismissed. This Court affirmed the dismissal of Roché's lawsuit as a SLAPP in 2010. Lang's allegedly defamatory statements about Roché were made in an absolutely privileged communication to a government agency whose function is to investigate and remedy wrongdoing.4
In 2009, Lang instituted the present lawsuit against Warren and Elena Roché (collectively, Roché). Lang seeks to quiet title to the real property in Topanga Canyon, which he purchased for $12,000 from Roché in 1977. Lang claims that Roché holds title to the property adversely, without any right to do so. He alleges that Roché obtained title and possession of the property through wrongful conduct, at a grossly inadequate price. Lang seeks a declaration that he has sole title to the property, and that Roché has no right, title or interest in it.
Roché demurred to Lang's complaint, on the ground that it is time-barred and fails to state a claim. Roché does not dispute that he obtained a writ of execution, and Lang's property was sold at a sheriff's sale. However, he argues that a lawsuit to set aside the sheriff's sale must be filed within 90 days after the sale and, since six years have passed, Lang's action is untimely. Lang responds that he has an equitable right to redeem real property sold to a judgment creditor at a grossly inadequate price, where the judgment creditor is guilty of unfairness or has taken undue advantage. Lang points to Roché's unfair acts in securing a default judgment, serving the lawsuit in a way that was calculated to deprive Lang of notice and an opportunity to be heard.
The trial court found that the purpose of Lang's lawsuit is to set aside the sheriff's sale of his property on November 19, 2003. An action to set aside a sheriff's sale for irregularities in the proceedings must be brought within 90 days after the sale. Lang's lawsuit was filed in 2009, years after the 90–day limitations period expired. The court sustained Roché's demurrer without leave to amend, on the ground that Lang's claim is time-barred. The court entered an order of dismissal on February 25, 2010, the same day that Lang filed his notice of appeal.
Appeal lies from the court's judgment in favor of Roché. (Code Civ. Proc., § 904.1, subd. (a)(1).) 5 We review de novo the ruling on the demurrer, exercising our independent judgment to determine whether a cause of action has been stated. ( Desai v. Farmers Ins. Exchange (1996) 47 Cal.App.4th 1110, 1115, 55 Cal.Rptr.2d 276.) The demurrer tests the sufficiency of the plaintiff's claims as a matter of law.
In 1982, the Legislature enacted the Enforcement of Judgments Law (EJL). (§ 680.010 et seq.) The EJL is comprehensive in scope. Among other things, it addresses the procedures for enforcing judgments by writ of execution. Under the statutory scheme, an execution sale “is absolute and may not be set aside for any reason.” (§ 701.680, subd. (a).) 6 If the judgment forming the basis for the sale is subsequently reversed, vacated, or otherwise set aside, the judgment debtor may recover from the judgment creditor the proceeds of the sale, with interest. ( Id., subd. (b).) If the sale “was improper because of irregularities in the proceedings, because the property sold was not subject to execution, or for any other reason,” and the purchaser at the sale is the judgment creditor, the judgment debtor may institute an action to set aside the sale. ( Id., subd. (c)(1).) An action to set aside the sale must be commenced within 90 days after the sale. ( Ibid.) In an action to set aside the sale, the judgment debtor “may recover damages caused by the impropriety.” ( Id., subd. (c)(2).)
State law historically protected a titleholder when the purchaser at a judicial sale was a party to the underlying litigation. Under the statutory scheme in effect before the enactment of the EJL, if the plaintiff in an action purchased the defendant's property at an execution sale, the former owner, after reversal on appeal, could have the sale set aside and be restored to possession. ( Arrow Sand & Gravel, Inc. v. Superior Court (1985) 38 Cal.3d 884, 888–889, 215 Cal.Rptr. 288, 700 P.2d 1290.)
The EJL marked a change in California law. One of the purposes of the EJL was to repeal the statutory right to redeem property sold at execution sales. ( Gonzalez v. Toews (2003) 111 Cal.App.4th 977, 983, 4 Cal.Rptr.3d 434;Yancey v. Fink (1991) 226 Cal.App.3d 1334, 1346, 277 Cal.Rptr. 415.) The comprehensive revision of the EJL “completely eliminated the possibility that judicial sales be set aside on reversal of the underlying judgment regardless of the identity of the purchaser.” ( Arrow Sand & Gravel v. Superior Court, supra, 38 Cal.3d at p. 890, 215 Cal.Rptr. 288, 700 P.2d 1290.) Because the EJL offers remedies in the event that the judgment is reversed, vacated, or otherwise set aside, “it is apparent that the Legislature has determined that judicial sales of real property may not be set aside on the basis that the underlying judgment ordering the sale has been reversed.” ( Ibid.) In short, “By declaring that all execution sales are absolute, the new law necessarily means that none of the property sold is subject to redemption.”
Lang contends that the right to equitable redemption following an execution sale survives...
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