Case Number: GC038906    Hearing Date: August 22, 2014    Dept: A

Tsui v Chui

MOTION TO SET ASIDE VOID ORDER

Calendar: 19
Case No: GC038906
Date: 8/22/14

MP: Defendant in Intervention, James Li
RP: Plaintiff in Intervention, David Zhang

RELIEF REQUESTED:
Order setting aside the July 24, 2012 order directing issuance of James Li’s deeds of trust

DISCUSSION:
This case arises from a partition action regarding real property at 9333 Guess Street, Rosemead, CA. The parties were Plaintiffs, Cindy Tsui and Kwok Lo, and Defendant, Michael Chui. After a Court trial, the Court issued a statement of decision in which it found that the Plaintiffs had a 50% interest in the property (see copy of statement of decision in exhibit A to opposition papers). The Court issued an order directing that the property be sold and that the proceeds be distributed according to each party’s interest. The judgment was entered on October 6, 2010 (see exhibit C to opposition papers).

James Li was the attorney for the Defendant, Michael Chui. Mr. Li agreed to take his compensation in the form of five deeds of trust that he recorded on the property at issue. Mr. Li’s deeds of trust totaled $170,000.

Mr. Li filed a motion to vacate the trial judgment. The Court denied the motion on November 9, 2010. Mr. Li filed a notice of appeal. The Court of Appeal affirmed the trial court’s order denying the motion to vacate. The Court of Appeal concluded that “Li lacks standing to appeal from the judgment and his motion to vacate was properly denied” (opposition exhibit D, page 2, paragraph 2).

On May 31, 2012, the Plaintiffs filed a motion for clerk’s reconveyance of James Li’s deeds of trust (see copy of motion in opposition exhibit E). The property could not be sold pursuant to the judgment because Mr. Li’s deeds of trust were recorded on the property. The Court granted the motion on July 24, 2012 and ordered the Clerk of the Court to issue a reconveyance of the deeds of trust (see July 24, 2012 order in exhibit G).

The property was then sold for $360,000. After the sale of the property and the distribution to the senior liens, to the Plaintiffs, to commissions and escrow costs, Mr. Li received $310.66 (see Seller’s Closing Statement in exhibit J to opposition papers).

This hearing concerns the motion of James Li to set aside the July 24, 2012 order that reconveyed the deeds of trust to the Plaintiffs. This is James Li’s second motion for the relief. James Li took the first motion off calendar on July 10, 2014 before the hearing on July 11, 2014.

James Li seeks relief under CCP section 473(d). CCP section 473(d) authorizes the Court to set aside any void judgment or order. Section 473(d) authorizes the Court to set aside a void judgment or order on its own motion. The motion may be made at any time. Heidary v. Yadollahi (2002) 99 Cal.App.4th 857, 862. It is immaterial how the invalidity is called to the Court’s attention. Baird v. Smith (1932) 216 Cal. 408, 410.

James Li argues that his due process rights were violated because he did not receive notice of the order. This argument is without merit because James Li had notice of the motion to seek the order, had notice of the hearing on the motion, and had the opportunity to file an opposition. The trial court issued the order to reconvey the deeds of trust after a July 11, 2012 hearing on a properly noticed motion for an order to reconvey the deeds encumbering the property. The motion for an order reconveying the deeds of trust was filed on May 31, 2012 (copy of motion in exhibit E to opposition papers). James Li had notice of the motion and the July 11, 2012 hearing, as indicated by the opposition papers that he filed on June 29, 2012 (copy of James Li’s opposition in exhibit F to opposition papers). Since James Li had notice of the motion hearing and filed opposition papers, he had notice that the Court would issue the relief requested in the motion for an order to reconvey the deeds.
James Li attempts to argue that he did not have notice of the contents of the order. This argument is without merit because the notice of motion that was granted by the Court stated that it was seeking an order directing the Clerk to issue deeds of reconveyance deeds of trust that were held by James Li as trustee on the property (see copy of motion in exhibit E to opposition papers). The order issued by the Court directed the Clerk of the Court to issue reconveyance deeds for the deeds of trust for which James Li was the trustee. Since the contents of the Court’s order were identified in the notice of motion, James Li had notice of the contents of the order and had the opportunity to oppose the requested order.
Accordingly, there are no grounds to find that the July 24, 2012 order is void for a violation of due process rights.

James Li then argues that the July 24, 2012 order is based on “factual and legal predicates” that no longer exist. This argument is based on an attempt to claim that there was no need to reconvey the deeds of trust held by James Li. This argument lacks any persuasive force because the Court’s July 24, 2012 order was required to enforce the judgment in the partition action so that the private property could be sold and a distribution to its owners could occur.
Partition actions are regulated by CCP sections 872.010 to 874.140. Under CCP section 872.120, the Court has the power, in the conduct of the partition action, to make any decrees and orders necessary or incidental to carrying out the purposes of the partition action and to effectuate its decrees and orders. The Court’s July 24, 2012 order was authorized under CCP section 872.120 because it was required to effectuate the judgment for the sale and distribution of proceeds. The Court’s July 24, 2012 order was necessary to accomplish the purpose of the partition action. Further, the Court’s order preserved James Li’s interest because the Court ordered that the interests represented by the deeds of trust would remain a lien on the proceeds due to James Li’s client.
Accordingly, there are no grounds to find that the July 12, 2012 order is void because its “factual and legal predications” no longer exist.

Finally, in his reply papers, James Li argues that the July 24, 2012 order is “inherently problematic” and subject to collateral challenges by “multiple individuals”. This offers no grounds to find that the order is void. Instead, the “multiple individuals” must file separate legal actions to establish the merits of any collateral challenges to the order.

Therefore, the Court will deny the motion of James Li for relief under CCP section 473(d) because the July 24, 2012 order is not a void order.

RULING:
DENY motion.