Schumacher v. Gaines

• Decision Date: 28 July 1971
• Citation: 96 Cal.Rptr. 223,18 Cal.App.3d 994
• Court: California Court of Appeals Court of Appeals
• Parties: Betty SCHUMACHER, Plaintiff and Respondent, v. Alvin Van Loan GAINES et al., Defendants and Appellants. Civ. 12425.

Page 223

96 Cal.Rptr. 223

18 Cal.App.3d 994

Betty SCHUMACHER, Plaintiff and Respondent, v. Alvin Van Loan GAINES et al., Defendants and Appellants.

Civ. 12425.

Court of Appeal, Third District, California.

July 28, 1971.

Rehearing Denied Aug. 27, 1971.

Hearing Denied Sept. 22, 1971.

Hauerken, St. Clair, Zappettini & Hines, by Cyril Viadro, San Francisco, William J. Braun, Redding, for plaintiff-respondent-appellant.

Jay J. Plotkin, Studio City, for defendants-appellants-respondents.

Packard & Pugh, Redding, for defendant-respondent.

REGAN, Associate Justice.

This appeal is from a judgment for Betty Schumacher upon her complaint filed April 8, 1968 (amended thereafter on October 28, 1968), wherein she sought damages due by reason of waste, for declaratory relief, for mental suffering and for fraud arising from the sale by her to defendants Alvin Van Loan Gaines and Aileen Wilson Gaines of a ranch in Shasta County, California.

Defendants appeal from the judgment entered on a jury verdict finding them liable for waste ($10,000), breach of contract ($37,208), and punitive damages ($12,500); and from the judgment on appellant's cross-complaint whereby the jury awarded appellants only the sum of $3,060 for overpayment of interest.

Defendants purchased the real property and certain personal property thereon for the sum of $285,000 in November 1966, the terms of sale being a down payment of $45,000, the balance in the sum of $240,000 secured by a note and deed of trust payable over a ten-year period, with interest at six percent per annum, with an initial sum of $40,000 interest free, payable at the end of the first year.

The ranch, covering approximately 840 acres, had been used primarily as a summer cattle grazing ranch. A ranch house and guest cabin, both neat and in good condition, were located on the property.

The deed of trust provided that defendants (as trustors) were 'to keep said property in good condition and repair; not to remove or demolish any building thereon; to complete or restore promptly and in good and workmanlike manner any building which may (be) constructed, damaged or destroyed thereon and * * * not to commit or permit waste thereof * * *.'

When defendants initially took possession of the property, they intended to maintain a summer cattle ranch. Shortly thereafter they decided to construct a building on the property to be used for a country store and residence quarters for defendants and their employees, and commenced construction of a 70 foot by 100 foot steel Butler stress building on a knoll above an area of the property known as Rye Flat in November 1966. The only plans drawn for the building were for the erection of the shell and slab. Other planning for the building was done on a day-to-day basis, being rough sketches made on wrapping paper. Later, defendants decided to include a storage area, shops, a beer bar, and a restaurant in the building, again without the benefit of detailed or formal plans.

In March 1967 the outer shell of the steel building had been constructed. Thereafter, defendants started on the interior construction of the building, with no plans and with changes being made from time to time. By September 1967 construction of the interior had progressed to the point that most of the wiring, plumbing, duct work and insulation were in place, and it was ready for the application of dry wall.

To the rear of the building, defendants installed two large water tanks and a pump. Two gasoline tanks were also installed near the steel building. Defendants also began the construction of a dam and lake in a meadow area. Fallen trees and debris around this site were not cleared away. There was also land damage caused by erosion.

In order to construct the building a cut was made in the knoll to accommodate the structure. Trees were also felled and not cleared on the construction site and the road leading thereto. In some areas dirt was left piled against trees causing them to die. As a result, in the area around Rye Flat, the scenery was destroyed.

On November 9, 1967, counsel for defendants sent plaintiff a notice of rescission, although no specific grounds were mentioned in such notice. On that same date, defendant Alvin Gaines wrote to plaintiff stating that the notice of rescission was 'brought on by the pressures of my wife and attorney,' and that he would still like to work something out. However, nothing came of this and defendants failed to make the $40,000 payment which was due on November 10, 1967. Plaintiff then caused a notice of default to be served and recorded declaring the entire unpaid balance of the purchase price to be due and owing. On April 9, 1968, one day after the complaint herein was filed, pursuant to the power of sale in said deed of trust, the trustee sold the subject property to plaintiff at public sale for $243, 123.29. ¹ Plaintiff was the sole bidder. ²

Sometime in January 1968, and after the recording of the notice of default, the defendants, through their agent Lee Wurst (also a defendant named in the complaint), completely dismantled and gutted the interior of the steel building. Wiring, insulation, and plumbing, plus other miscellaneous items, were completely ripped out and sold or otherwise disposed of. ³

Fred Klein, who had been hired by defendants as the building contractor, estimated that the damage caused by defendants to the steel building could amount to between $10,000 and $25,000. Robert Bryant, a general contractor, testified that it would cost $37,874 to finish the building as a resort. Bryant also testified that it would cost $10,500 to replace the materials removed from the building.

Plaintiff was of the opinion that the value of her property had decreased to $185,000 because of defendants' use of the property.

James Hull, an appraiser, valued the property at the time of the sale at $185,000, based on comparable sales. In Hull's opinion, the addition of the building added $13,465 to the value of the property. Nevertheless, Hull testified that the building was a 'misplaced improvement * * * in virtually a wilderness * * * (representing) a tremendous expenditure of money which by no means could be justified, and which a person would be very difficult to find a buyer in the market that would pay the full value that building represents.' Hull stated that the building was suitable only for a 'machine storage shed, cattle hay barn, cattle feed out barn or something in conjunction with the main purpose of the property * * *.' However, he also felt that anything removed from the building which did not damage the exterior walls would enhance the value.

Robert Townsend, an appraiser, testified that the property, based upon comparable sales, had a value of $194,000. In Townsend's estimate of value, he appraised the property 'as to the salvage value of what now remains * * *.'

According to the defendants, they spent $242,000 on improvements and upkeep of the ranch. Of this amount, $75,983.99 was spent on the steel Butler Building.

Most of the personal property on the ranch which was included in the sale price was sold by defendants. This personal property, valued at $20,000, was not covered by a chattel mortgage.

Trustee's Sale

Defendants contend that where the beneficiary of a deed of trust has received satisfaction of her indebtedness by purchase of the security at the trustee's sale for the full sum due, the beneficiary cannot recover damages for acts of impairment of the security occurring prior to the foreclosure sale. In other words, the debt is now fully paid and thus plaintiff has no recourse against defendants. ⁴

Section 580b of the Code of Civil Procedure provides, in pertinent part: 'No deficiency judgment shall lie in any event after any sale of real property for failure of the purchaser to complete his contract of sale, or under a deed of trust, or mortgage, given to the vendor to secure payment of the balance of the purchase price of real property * * *.'

In Brown v. Jensen (1953) 41 Cal.2d 193, 259 P.2d 425, in holding that the clear import of section 580b of the Code of Civil Procedure was that a creditor taking a purchase money deed of trust on the property may look only to the security, the court states (at p. 197, 259 P.2d at p. 426): 'Next comes section 580b, Supra, here involved, which deals with a special type of security transaction, a trust deed, given to secure to the vendor of property the purchase price agreed to be paid by the vendee. That section is necessarily intended to provide a protection for the trustor * * *. The broad protection provision, Code Civ.Proc. § 580b, for purchase money trust deeds stands on a reasonable footing. A purchase money trust deed is not like an ordinary trust deed and note upon which only one action may be brought under section 726. * * * With purchase money trust deeds, however, the character of the transaction must necessarily be determined at the time the trust deed is executed. Its nature is then fixed for all time and as so fixed no deficiency judgment may be obtained regardless of whether the security later becomes valueless.

'The question is, therefore, did plaintiff take a purchase money trust deed on the property when it was purchased? If she did, then section 580b is applicable and she may look only to the security. That is the clear import of the wording of section 580b. The one taking such a trust deed knows the value of his security and assumes the risk that it may become inadequate.'

In Jeanese, Inc. v. Surety Title & Gty. Co. (1959) 176 Cal.App.2d 449, 1 Cal.Rptr. 752, the court in its recognition of the holding in Brown v. Jensen, supra, states (at p. 454, 1 Cal.Rptr. at p. 755): 'Ordinarily where the security is lost or has become valueless, an independent action may be maintained on the debt. (Citation.) But where the security is a purchase money deed of trust or mortgage, the lender must look solely to the security itself, i.e., the...