Zaccaria v. Bank of America Nat. Trust and Sav. Ass'n

• Decision Date: 30 October 1958
• Citation: 331 P.2d 198,164 Cal.App.2d 715
• Court: California Court of Appeals
• Parties: Uberto ZACCARIA and Carol Zaccaria, Plaintiffs and Appellants, v. BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION, M. Martin, Robert L. Watkins, Emma C. Watkins, Rim Conrad, et al., Dependents and Respondents. Civ. 5713.

Page 198

331 P.2d 198

164 Cal.App.2d 715

Uberto ZACCARIA and Carol Zaccaria, Plaintiffs and Appellants, v. BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION, M. Martin, Robert L. Watkins, Emma C. Watkins, Rim Conrad, et al., Dependents and Respondents.

Civ. 5713.

District Court of Appeal, Fourth District, California.

Oct. 30, 1958.

William O. Burt, Santa Monica, for appellants.

Samuel B. Stewart, San Francisco, Hugo A. Steinmeyer and Robert H. Fabian, Los Angeles, for respondents.

GRIFFIN, Presiding Justice.

Plaintiffs-appellants Uberto Zaccaria and his wife Carol, as owners, brought this action against defendants-respondents Bank of America National Trust & Savings Association, as trustees, Rim Conrad, and Robert and Emma Watkins, as beneficiaries, to set aside a trustee's sale of certain described real property in Orange County under a trust deed executed by plaintiffs to secure the payment of an indebtedness for $3,408.12. They alleged that on September 10, 1954, a notice of default was recorded; that on January 26, 1955, a sale was held by the trustee and the property was sold to the defendant Conrad for $3,800, which plaintiffs claim was grossly inadequate; that plaintiffs were and are able to pay said amounts in default; that the sale was the result of fraud of defendants on account of (1) failure to give proper notice of the sale to plaintiffs; (2) misinforming plaintiffs as to the nature of the sale and the legal consequences; (3) indicating to plaintiffs that they would have a right of redemption; and (4) improperly influencing the beneficiaries to permit the sale to and purchase by defendant Conrad. The prayer is for a decree setting aside the sale and placing title to the property back in the hands of plaintiffs; for restitution of the property; and damages for loss of use, as well as punitive damages for $35,000.

A demurrer to the complaint was sustained with leave to amend. An amended complaint was filed alleging, in addition to the allegations of the original complaint, that the property had a true value of $17,500. It also set forth a letter written by defendant Martin on December 9, 1954, signed Pro-assistant cashier. It was directed to Mr. Zaccaria, in which he made reference to the 'foreclosure' of the trust deed by the beneficiary. It was further alleged that it was plaintiffs' belief that from the use of this word there was a foreclosure action pending and he would have a period of redemption, when in truth and in fact it was a trustee's sale with no right of redemption; that plaintiffs immediately attempted to redeem and were informed there was no right of redemption; that the trustees requested the beneficiary to proceed with the sale knowing plaintiffs were confronted with financial problems and even though plaintiffs did not desire to go forward with the sale. A motion to dismiss as to each defendant was presented. In said motion it was alleged that the judgment in the case of Conrad v. these plaintiffs, case No. 64524, rendered in the Orange County Superior Court, was res judicata as to all issues tendered by this complaint. A judgment dismissing the action on this ground followed. The appeal is from this judgment.

The propriety of this judgment is the only point raised on this appeal and involves the issues presented in that case. The record in that action and affidavits used in support of the motion were brought to this court under proper motion to augment the record under Rule 12(a), Rules on Appeal, which was granted. It was an action commenced by Rim Conrad against plaintiffs here for ejectment on January 27, 1956. The complaint alleged plaintiffs were the owners in fee simple of the real property here involved by reason of the trustee's sale above described; that plaintiffs were entitled to possession and defendants refused to surrender it. The prayer was for restitution of the property and for damages for withholding it. The Zaccarias appeared in propria persona by answer and denied generally the allegations of the complaint. Plaintiffs' motion for a summary judgment under section 437c of the Code of Civil Procedure was made. It was supported by plaintiff's affidavit that he was the owner of the property by reason of the trustee's deed above mentioned. A copy of the deed was attached. The Zaccarias appeared at the hearing and the court entered judgment for the possession of the property to Rim Conrad. It recited that Conrad was the owner of the property by virtue of the trustee's deed and that 'all right and title of defendants has ceased'. A writ of possession followed and $100 damages was awarded to plaintiff there for wrongful withholding. It further appears that by grant deed recorded March 12, 1956, Conrad deeded said property to one Rae H. Oakes, a widow, as her sole and separate property.

Appellants here claim that there was no prayer for a declaration of title in that complaint and accordingly no claim of title was put in issue and no title was decided, citing Johnson v. Fontana...