Perego v. Seltzer

• Decision Date: 09 April 1968
• Citation: 260 Cal.App.2d 825,67 Cal.Rptr. 636
• Parties: Ruth S. PEREGO, Plaintiff and Appellant, v. Roberta B. SELTZER, et al., Defendants and Respondents. Civ. 23968.
• Court: California Court of Appeals Court of Appeals

Page 636

67 Cal.Rptr. 636

260 Cal.App.2d 825

Ruth S. PEREGO, Plaintiff and Appellant, v. Roberta B. SELTZER, et al., Defendants and Respondents.

Civ. 23968.

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

April 9, 1968.

Llewellyn Johns, San Francisco, for appellant.

M. Laurence Popofsky, Heller, Ehrman, White & McAuliffe, San Francisco, Alfred R. Meyers, Beverly Hills, for respondents.

HAROLD C. BROWN, Associate Justice.

This is an appeal from a judgment of dismissal following an order sustaining a general demurrer without leave to amend in an action to set aside a deficiency judgment after foreclosure in Solano County Superior Court, action No. 41076, entitled Roberta B. Seltzer et al. v. Richard M. Bussey et al.

The judgment in action No. 41076 involved foreclosure and deficiency proceedings arising out of a transaction whereby Ruth S. Perego (the appellant) and four other persons borrowed the sum of $112,000 from the respondents to purchase a parcel of real property in Solano County. The loan was evidenced by an installment promissory note secured by a deed of trust, both instruments being executed on September 23, 1963. The deed of trust was recorded as of November 1, 1963. Thereafter the borrowers defaulted in the installment payments and respondents instituted this action to foreclose on the real property described in the deed of trust. Perego, the only defendant who answered the complaint to foreclose, alleged usury and overpayment of interest as defenses. The respondents filed a motion for a summary judgment and affidavits which established the propriety of the interest charges and that the balance claimed due was accurately stated. Perego did not controvert the matters set forth in respondents' affidavit relative to the validity of interest charges and the accuracy of the amount claimed due. Instead, she alleged in a declaration in opposition to the summary judgment That at the time the deed of trust was signed that she and the other borrowers did not have title to the described real property. This purported defense had not been set forth in Perego's answer to respondents' complaint and no amendment to the answer was offered.

The trial court found that the records disclosed That title to the property had vested in the borrowers prior to the time of recordation of the deeds and awarded the respondents judgment in foreclosure. The property was thereafter sold, and the proceeds of the sale were credited to the judgment award. Upon application by respondents, the court awarded a judgment for the deficiency in the sum of $27,570.65 with interest from May 21, 1965. Perego filed an appeal from the deficiency judgment, which appeal was ordered dismissed as not timely filed. Perego then instituted the present action to set aside the judgment alleging that the court did not have jurisdiction to render a summary judgment in action No. 41076 because of the existence of a triable issue of fact, i.e., that the borrowers were not the owners of the property described in the deed of trust at the time of execution of that deed. The respondents' demurrer to appellant's complaint was sustained without leave to amend; ¹ this judgment and appeal followed.

An order sustaining a demurrer without leave to amend followed by a final judgment of dismissal of the action is a drastic step and ordinarily constitutes an abuse of discretion if there is a reasonable possibility that the defect can be cured by amendment. Such an order is reviewable on appeal. Where, however, as here, the facts are not in dispute, and the nature of the plaintiff's claim is clear but under the substance of the law no liability exists and, obviously, no amendment would change the result, the trial judge may properly sustain a demurrer without leave to amend. (See Routh v. Quinn, 20 Cal.2d 488, 493--494, 127 P.2d 1, 149 A.L.R. 215.)

It is recognized that it is reversible error to grant a motion for summary judgment in the face of a triable issue of fact. (Strauss v. Strauss, 90 Cal.App.2d 757, 203 P.2d 857.) But here it was established that the appellant and the other signators to the deed of trust did have record title to the land as of the date of recordation, November 1, 1963. Therefore, the contention that the borrowers did not have title at the time of execution of the note and deed of trust was of no consequence and did not raise an issue that could affect the outcome of the proceedings.

'Title acquired by the mortgagor subsequent to the execution of the mortgage, inures to the mortgagee as security for the debt in like manner as if acquired before the execution.' (Civ.Code § 2930.) This code section is fully applicable to trust deeds (Barberi v. Rothchild, 7 Cal.2d 537, 61 P.2d 760), and it is well settled that a trust deed creates a valid lien on real property to secure a debt for which it is executed, even though the trustor has no title to the property at the time of the execution of the instrument, provided he subsequently acquires title thereto during the life of the deed of trust. Title to real property acquired after it is mortgaged is deemed to be covered by the lien on the theory that the mortgagor is estopped from denying title under such circumstances. (California Bank v. Bell, 38 Cal.App.2d 533, 101 P.2d 724; Civ.Code § 2930; 17 Cal.Jur., § 142, p. 854; 58 A.L.R. 391, note; Orr v. Stewart, 67 Cal. 275, 7 P. 693; Schelling v. Thomas, 96 Cal.App. 682, 688, 274 P. 755.)

The trial court in action No. 41076 had jurisdiction to entertain the motion for summary judgment under Code of Civil Procedure section 437c. Any errors committed either in procedure or substantive law in granting or denying the motion were reviewable by appropriate motions before the trial court or by appeal. If the trial court committed error in not recognizing the triable issue contended for by the appellant (which it did not), such error would not be grounds for a collateral attack on the judgment or for direct attack by the jurisdictional writs of certiorari or prohibition. (See Estate of Keet, 15 Cal.2d 328, 335, 100 P.2d 1045; Estate of Kay, 30 Cal.2d 215, 218, 181 P.2d 1; Howard v. Superior Court, 25 Cal.2d 784, 788, 154 p.2d 849; Estate of Gardiner, 45 Cal.App.2d 559, 563, 114 P.2d 643; Estrin v. Superior Court, 14 Cal.2d 670, 675, 96 P.2d 340; In re Sargen, 135 Cal.App. 402, 408; Fischer v. Superior Court, 105 Cal.App. 466, 470, 287 P. 556; 1 Witkin, California Procedure, pp. 380--412; Eagle Oil & Ref. Co. v. Prentice, 19 Cal.2d 553, 122 P.2d 264.)

Appellant's argument is essentially that intrinsic error in rendering a judgment makes the judgment void so that the judgment may be directly attacked in equity. Such is not the law. 'The final judgment of a court having jurisdiction over persons and subject matter can be attacked in equity after the time for appeal or other direct attack has expired only if the alleged fraud or mistake is extrinsic rather than intrinsic. (Citations.) Fraud or mistake is extrinsic when it deprives the unsuccessful party of an opportunity to present his case to the court. (Citations.) * * * A party who has been given proper notice of an action, however, and who has not been prevented from full participation therein, has had an opportunity to present his case to the court and to protect himself from any fraud attempted by his adversary. (Citations.) Fraud perpetrated under such circumstances is intrinsic, even though the unsuccessful party does not avail himself of his opportunity to appear before the court. Having had an opportunity to protect his interest, he cannot attack the judgment once the time has elapsed for appeal or other direct attack. (Citations.)' (Westphal v. Westphal, 20 Cal.2d 393, 397, 126 P.2d 105, 106; see also Kupfer v. Brawner, 19 Cal.2d 562, 122 P.2d 268.)

After the judgment in...