Case Name: Cheng, et al. v. Black-Wittman, et al.

Case No.: 17CV305873

Plaintiffs Poyuen Cheng and Shulin Chien (collectively, “Plaintiffs”) move for summary judgment in their favor and against defendants Jan Black-Wittman (“Black-Wittman”) and Patricia Griffis (“Griffis”) (collectively, “Defendants”).

I. Background
II.

A. Factual
B.

This is an action to quiet title to a property located at 2356 Patricia Drive in San Jose (the “Property.”) According to the allegations of the complaint (“Complaint”), nearly twenty years ago attorney Robert M. Tobin (“Tobin”) obtained a default judgment against his clients, Defendants (former owners of the Property), in the amount of $106,250 for unpaid legal fees. (Complaint, ¶ 19.) The foregoing judgment was renewed on July 5, 2012 for a total of $106,005.43, with the Notice of Renewal of Judgment recorded that day. (Id., ¶¶ 20-21.)

On December 9, 2015, sisters Griffis and Black-Wittman, as joint tenants, granted fee simple title to the Property to Plaintiffs. (Complaint, ¶ 17.) The grant deed was recorded on December 16, 2015. (Id. and Exhibit 1.) Plaintiffs allege that they are bona fide purchasers who purchased the Property from Defendants with no actual or constructive notice of any adverse claims, including judgment liens, to their interest. (Id., ¶ 18.) They further allege that Black-Wittman has informed them that the renewed judgment is no longer valid insofar as it is subject to a number of defenses, including the fact that it has been paid off and/or otherwise was satisfied in full. (Id., ¶ 24.)

On December 5, 2016, the administrator for Tobin’s estate (a former co-defendant in this action) recorded a Notice of Levy giving notice of a claimed lien on the Property. (Complaint, ¶ 37 and Exhibit 2.) The following week, a Sheriffs Release of Levy on Real Property was recorded. (Id., ¶ 38 and Exhibit 3.) A further Notice of Levy was recorded by the administrator for Tobin’s estate on December 15, 2016. Despite being informed of Plaintiff’s status as bona fide purchasers and that there were valid defenses to the renewed judgment, the administrator had continued to make efforts to levy a writ of execution on the Property through the notices of levy. (Id., ¶ 44.) Plaintiffs brought this action to quiet title to

C. Procedural
D.

Based on the foregoing allegations, Plaintiffs filed the Complaint on February 1, 2017, asserting the following causes of action: (1) to quiet title (against all defendants); (2) declaratory relief (against all defendants) ; (3) slander of title (against the administrator of Tobin’s estate); (4) for restraining order and injunction (against all defendants); (5) implied indemnity (against Black-Wittman and Griffis); and (6) unjust enrichment (against Black-Wittman and Griffis). On November 26, 2019, Plaintiffs filed the instant motion for summary judgment. Defendants oppose the motion.

III. Plaintiffs’ Request for Judicial Notice
IV.

In support of their motion for summary judgment, Plaintiffs request that the Court take judicial notice of the following items: (1) Abstract of Judgment, recorded September 4, 2002 (Exhibit A); (2) Notice of Renewal of Judgment (Exhibit B); (3) Grant Deed on the Property, recorded December 16, 2015 (Exhibit C); (4) Notice of Levy, recorded December 5, 2016 (Exhibit D); (5) Sheriffs Release of Levy on Real Property, recorded December 12, 2016 (Exhibit E); and (6) Notice of Levy, recorded December 15, 2016 (Exhibit F).

The foregoing are recorded property records and therefore proper subjects of judicial notice under subdivisions (c) and (h) of Evidence Code section 452 as “[o]fficial acts … of any state of United States” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy,” respectively. (See Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-267 (disapproved on other grounds by Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919.) Accordingly, Plaintiffs’ request for judicial notice is GRANTED.

V. Plaintiffs’ Motion for Summary Judgment
VI.

A. Burden of Proof
B.

The party moving for summary judgment bears the initial burden of production to make a prima facie case showing that there are no triable issues of material fact – one sufficient to support the position of the party in question that no more is called for. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) Plaintiffs moving for summary judgment bear the burden of persuasion that each element of the cause of action in question has been proved, and hence there is no defense thereto. (Code Civ. Proc., § 437c.) Plaintiffs, who bear the burden of proof at trial by preponderance of evidence, therefore “must present evidence that would require a reasonable trier of fact to find the underlying material fact more likely than not- otherwise he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact.” (Aguilar, supra, 25 Cal.4th at 851.) The defendant has no evidentiary burden until the plaintiff produces admissible and undisputed evidence on each element of a cause of action. (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2019), ¶ 10:238.) If the plaintiff meets this initial burden, it then shifts to the defendant to “show that a triable issue of one or more material facts exists as to that cause of action.” (Code Civ. Proc., § 437c, subd. (p)(1).)

C. Analysis
D.

The long and short of this action is that Defendants purportedly sold an encumbered property to Plaintiffs without satisfying the judgment lien, forcing Plaintiffs, who were unaware of the encumbrance at the time of the purchase, to pay the lien themselves in order to prevent the foreclosure of the property by the lienholder. They now seek indemnification from Defendants for the sums they paid.

1. Plaintiffs’ Undisputed Material Facts
2.

In support of their motion, Plaintiffs’ submit the following version of events: on July 12, 2002, attorney Tobin obtained a default judgment against Black-Wittman in the sum of $106,250 for the reasonable value of his services, plus costs in the amount of $1,351.35, less $25,000 paid to date and less $29,391.42 from attorney’s trust account for a total judgment of $53,209.93, with interest at the rate of 10% per annum, accruing from July 12, 2002. (Plaintiffs’ Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment (“UMF”), No. 1.) This judgment was renewed on July 5, 2012 for a total of $106,005.43, with a Notice of Renewal of Judgment recorded in the official records of Santa Clara County. (UMF No. 2.)

On December 9, 2015, Griffis, a married woman as her sole and separate property and Black-Wittman, an unmarried woman, as joint tenants, granted fee simple title to the Property to Plaintiffs, husband and wife as community property with a right of survivorship by virtue of a grant deed that was recorded on December 16, 2015. (UMF No. 3.) Defendants did not disclose the existence of Tobin’s judgment during the transaction for the Property, and therefore it was not satisfied during the escrow for the sale. (UMF No. 4.) Plaintiffs therefore unknowingly took title to the property subject to the judgment lien.

On December 5, 2016, the administrator of Tobin’s estate recorded a Notice of Levy giving notice of a claimed lien on the Property. (UMF No. 6.) Although this levy was released on December 12, 2016, the administrator caused a new Notice of Levy to be recorded on December 15, 2016. (UMF No. 7.) Plaintiffs subsequently filed this action in February 2017 in order to adjudicate the impact of the judgment lien on their property. (UMF No. 9.)

As neither of the defendants presented any viable defenses to the judgment, Plaintiffs ultimately paid $172,000 on April 4, 2018 in order to satisfy it to avoid foreclosure of the Property by Tobin’s administrator. (UMF Nos. 10, 11.) Had the judgment been satisfied prior to the sale of the Property, the net proceeds of the sale that were distributed to Defendants would have been reduced proportionally. (UMF No. 12.)

3. Plaintiffs’ Right to Implied Indemnification (i.e., Reimbursement)
4.

Plaintiffs maintain that they are entitled to indemnification and/or reimbursement from Black-Wittman, the judgment-debtor, for the monies paid to satisfy the judgment. They further assert that both Griffis and Black-Wittman were unjustly enriched by the sale of the property without first satisfying the judgment lien.

Plaintiffs allege in the Complaint that their having to satisfy the judgment lien on the Property was based solely on the “liability, agreements, responsibility, lack of disclosure and/or acts or omissions of” Defendants. (Complaint, ¶ 51.) As a consequence, they plead, they are entitled to indemnification from Defendants.

As a general matter, indemnity may be defined as “the obligation resting on one party to make good a loss or damage another party has incurred.” (Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d 622, 628 [internal citation omitted].) The right to indemnification arises from two general sources: (1) “by virtue of express contractual language establishing a duty in one party to save another harmless upon the occurrence of specified circumstances; and (2) “in equitable considerations brought into play either by contractual language not specifically dealing with indemnification or by the equities of a particular case.” (E.L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 506-507 [internal citation omitted].)

The second category of indemnity is implicated here, with Plaintiffs essentially arguing that the equities, or rather inequities, of the circumstances at bar warrant the application of implied indemnity. “The duty to indemnify may arise, and … may be allowed in those fact situations were in equity and good conscience the burden of the judgment should be shifted from the shoulders of the person seeking indemnity to the one from whom indemnity is sought. (Herrero v. Atkinson (1964) 227 Cal.App.2d 69, 74.) The right to indemnity “depends upon that principle that everyone is responsible for the consequences of his own wrong, and if others have been compelled to pay damages which ought to have been paid by the wrongdoer, they may recover from him. Thus, the determination of whether or not indemnity should be allowed must of necessity depend on the facts of each case.” (Id.)

According to Plaintiffs, Defendants, by selling their property to them without first satisfying the judgment lien or disclosing its existence, breached the so-called “implied warranty of title,” and their wrongdoing compelled Plaintiffs to pay money to protect their interest in the Property. Consequently, Plaintiffs argue, they are entitled to recover the amounts paid from Defendants.

As Plaintiffs note, Civil Code section 1113 provides that from the use of the word “grant” in any conveyance in which an estate in fee simple is passed, the following two covenants are implied unless restrained by the express terms of the conveyance:

(1) prior to the time of execution of the conveyance, the grantor has not conveyed the same estate, or any right, title, or interest in the estate, to any person other than the grantee; and
(2)

(3) the estate conveyed is, at the time of the execution of the conveyance, free of encumbrances made or suffered by the grantor or any person claiming under the grantor.
(4)

The second covenant is what is at issue here and this covenant, often referred to as a “covenant against encumbrances,” imposes a personal obligation on the grantor, and where there are two or more grantors, the obligation is joint and several and binding on them even though he or she may have had no interest in the land at the time of the execution of the grant. (Evans v. Faught (1965) 231 Cal.App.2d 698.) For the purposes of the covenant, the term “encumbrance” includes all liens on real property. (Civ. Code, § 1114.) If the encumbrance affects title to the land, the covenant is broken the instant it is made, and it is no defense to an action for breach of covenant that the grantee had notice of the encumbrance at the time he or she took title. (Evans, supra, 231 Cal.App.2d 698.) The measure of damages for a breach of the implied covenant against encumbrances is the amount which has actually been expended by the covenantee in extinguishing either the principal or interest thereof, not exceeding the value of the property at the time of the breach. (See Civ. Code, § 3305.)

Plaintiffs assert that it is undisputed that Defendants were aware of the judgment lien and failed to disclose it to them during the sale of the Property, thereby breaching the implied covenant. By law, Plaintiffs conclude, they are therefore entitled to recover from Defendants the amounts they paid to extinguish the encumbrance.

In opposition, in arguing that they are not obligated to reimburse Plaintiffs and therefore their motion should be denied, Defendants primarily assert the following arguments: (1) the judgment lien was never valid in the first place due to an error in the spelling of Black-Wittman’s name and thus the implied covenant was not breached because there was no lien to disclose; and (2) Black-Wittman had no knowledge of the lien at the time of the sale.

With respect to Defendants’ first argument, according to Black-Wittman, after Tobin obtained a judgment against her, he failed to file a proper abstract of that judgment by failing to set forth Black-Wittman’s name in the same manner that she held title to the Property. (See Declaration of Jan Black-Wittman in Support of Opposition to Motion for Summary Judgment (“Black-Wittman Decl.”), ¶¶ 2, 4.) She explains that she held title to the Property as “Jan Black-Wittman,” with a hyphen present between “Black” and “Wittman,” but the abstract of judgment recorded by Tobin did not include the hyphen, listing “Black” as the middle name and “Wittman” as the last name. This error, she maintains, prevented a valid judgment lien from being created in the first instance, and therefore she had no lien to disclose to Plaintiffs when they purchased the Property.

A judgment lien on real property is created under a money judgment by recording an abstract of the judgment in the office of the county recorder of the county where the real property is located. (Code Civ. Proc., § 697.310, subd. (a); Dang v. Smith (2010) 190 Cal.App.4th 646, 651.) The judgment creditor must state the judgment debtor’s name on the abstract as listed on the judgment, but may also file an affidavit of identity to certify additional names by which the judgment debtor is known. (Code Civ. Proc., § 674, subd. (c)(1).) If such an affidavit is filed, it must be approved by the court before the clerk’s certification of an abstract containing those additional names. (Id.)

Certain types of errors on an abstract can defeat its validity, although minor imperfections will not do so. (See Weadon v. Shahen (1942) 50 Cal.App.2d 254, 259.) For example, if the judgment creditor is aware that the debtor has married, and that the title to the property is held in her married name, but the abstract is erroneously docketed in the debtor’s maiden name, then the recorded abstract does not impose a lien on the debtor’s property. (See Huff v. Sweetser (1908) 8 Cal.App. 689, 696.) As relevant here, a misspelling of the debtor’s name may invalidate an abstract on the theory that good-faith purchasers will not have constructive notice of the lien. (See, e.g., Orr v. Byers (1988) 198 Cal.App.3d 666, 669.) In Orr, the court was tasked with determining whether an abstract of judgment containing a misspelled name imparted constructive notice of its contents under the doctrine of idem sonans, after a judgment creditor sued the judgment debtor and a third-party who had purchased real property from the judgment debtor where a title search failed to disclose the abstract of judgment. Because the lien was not disclosed, the judgment was not satisfied from the proceeds of the judgment debtor’s sale to the third-party. The doctrine of idem sonans provides that even though a person’s name has been inaccurately written, the identity of such person will be presumed from the similarity of sounds between the correct pronunciation and the pronunciation as written. (Napa State Hospital v. Dasso (1908) 198 Cal. 698.) The judgment creditor in Orr had obtained a judgment against one “William Elliott” (two “ts”), but the judgment prepared by his attorney erroneously identified him as “William Duane Elliot” (one “t”), and he was identified in the subsequently recorded abstract of judgment as “William Duane Elliot” (one “t”) and “William Duane Eliot” (one “l” and one “t”). The appellate court declined to apply the doctrine of idem sonans, which had been utilized by prior courts solely to establish sameness of identity, to give constructive notice to good faith purchasers for value of real property. The court reasoned that misspellings in the judgment debtor’s name were material, and requiring a title searcher to comb the records for other spellings of the same name would place an undue burden on the transfer of property.

There are several distinctions between the instant action and Orr, which this Court believes compel different outcomes. First, the nature of the alleged mistakes appearing in the abstract of judgment are different. In Orr, letters were missing from the debtor’s name, while here, all of necessary letters are present. (See Plaintiffs’ Request for Judicial Notice, Exhibit A.) The only figure missing is a hyphen, and defendant Black-Wittman is herself inconsistent with the inclusion of it, having printed and signed her own name in the grant deed executed in 2015 transferring title to the Property to Plaintiffs without a hyphen. (Id., Exhibit C.) Given this, the Court is not persuaded that the absence of the hyphen is material and that Orr is controlling.

Second, the plaintiff in Orr was the judgment debtor, and the court made face him the consequences of his own mistakes. Here, even assuming for the sake of argument that the failure to include a hyphen in the abstract was a material mistake, the party that has suffered from it is not the judgment creditor but rather Plaintiffs, who are suing judgment debtor Black-Wittman (and her sister).

The primary case on which Defendants rely in arguing that no valid judgment lien was created due to the absence of the hyphen in the abstract of judgment, Huff v. Sweetser, supra, involved a significant mistake with regards to the judgment debtor’s name and is therefore distinguishable. Here, even according to defendant Black-Wittman’s own hand, her name was correct when written without the hyphen between the second and third names. Thus, the exclusion of the hyphen does not appear to this Court to be significant, and the Court agrees with Plaintiffs that a valid judgment lien was therefore created by the recording of the abstract of judgment on September 4, 2002. Further, as set forth above, the lien attached to all of Black-Wittman’s real property located in Santa Clara County pursuant to pursuant to Code of Civil Procedure section 697.310, subdivision (a).

As for Defendants’ next argument, the Court notes that even if it is true, as Black-Wittman maintains, that she did not know that the judgment had been renewed against her in 2012 (see Black-Wittman Decl., ¶ 6), the validity of the renewal would not be effected. This is because service on the judgment debtor of notice of the renewal is not necessary to effectuate renewal. (Code Civ. Proc., § 683.160, sub. (b); Goldman v. Simpson (2008) 160 Cal.App.4th 255, 262.) While a judgment creditor is required to serve notice upon the judgment debtor that the judgment has been renewed (see Code Civ. Proc., § 683.160, subd. (a)), the failure to do so only prevents the issuance of a writ of execution on the renewed judgment, and not the renewal itself. Thus, a valid judgment lien existed and encumbered the Property when it was sold by Defendants to Plaintiffs, having been created by the recording of the abstract of judgment in 2002 and the renewal of that judgment in 2012. As Plaintiffs were forced to satisfy the judgment in order to prevent the judgment creditor from foreclosing on the Property, the inequities of this action, i.e., one party was compelled to pay damages owed by another, supports a finding that Plaintiffs are entitled to recover those amounts from the individuals that owed them. (See Herrero v. Atkinson, supra, 227 Cal.App.2d at 74.) This leads, in part, to another argument made by Defendants- that there is no basis for Plaintiffs to recover any amounts paid by them from Griffis because the judgment obtained in 2002 by Tobin and then renewed in 2012 was against Black-Wittman alone. (See Plaintiffs’ RJN, Exhibit A.)

Plaintiffs maintain that they can recover from Griffis because she was unjustly enriched by no longer being responsible for the debt owed to Tobin. But Griffis was never responsible for the judgment because it was against her sister, Black-Wittman, and a judgment lien only attaches to the debtor’s joint tenancy interest. (See Ziegler v. Bonnell (1942) 52 Cal.App.2d 217, 219.) Griffis’ interest in the property (50%) was never encumbered and therefore she was not unjustly enriched by Plaintiffs’ satisfaction of the judgment. Consequently, Plaintiffs’ motion must be denied as to Griffis.

Conversely, it is clear that Black-Wittman was unjustly enriched by Plaintiffs’ satisfaction of the judgment lien because she was no longer directly responsible for it. Thus there is a basis for restitution/indemnification from her to Plaintiffs. However, the Court does not believe that Plaintiffs have sufficiently established the amount which they are entitled to recover from Black-Wittman. The sole evidence proffered by Plaintiffs in this regard is the declaration of their counsel, who states that Plaintiffs paid $172,000 to satisfy the judgment lien. But no details are offered concerning the specifics of this amount, i.e., what it was comprised of and how the total amount was reached. Without such details, the Court will not grant summary judgment in Plaintiffs’ favor. Accordingly, Plaintiffs’ motion is DENIED.