1.MOTION FOR SUMMARY JUDGMENT AND/OR ADJUDICATION

A cross-complainant moving for summary judgment on its own claim has the burden to produce admissible evidence on each element of a cause of action entitling him or her to judgment. CCP § 437c(p)(1); S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co. (2010) 186 Cal.App.4th 383, 388. This means that cross-complainants who bear the burden of proof at trial by a preponderance of evidence must produce evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not. LLP Mortg. v. Bizar (2005) 126 Cal.App.4th 773, 776. At that point, the burden shifts to cross-defendant “to show that a triable issue of one or more material facts exists as to that cause of action.” CCP § 437c(p)(1).

The subject pleading is Rich’s cross-complaint filed 05/07/12. There is a single cause of action contained therein: quiet title. The pleading, of course, forms the outer measure of materiality on a summary judgment motion. Nieto v. Blue Shield (2010) 181 Cal.App.4th 60, 73.

The essential elements for a quiet title action, which Rich must establish, are as follows: (a) a description of the property that is the subject of the action; (b) the title of the moving party as to which a determination under this chapter is sought and the basis of the title; (c) the adverse claims to moving part’s title against which a determination is sought; (d) the date as of which the determination is sought; and (e) a prayer for the determination of the title of the Plaintiff against the adverse claims. CCP §761.020.

Here, Rich contends that he has title to the property by virtue of the Sheriff’s Deed of Sale recorded 11/01/11 (see Verified Cross-Complaint ¶6). However, that deed was cancelled by court order on 04/19/12. The arguments asserted here regarding the propriety of that cancellation were fully briefed by Rich and the ruling was in Lee’s favor. Rich contends that Hon. Cramin was wrong, that he had no power to deem the deed void under CCP §701.680.

Rich took his grievance to the Court of Appeal, which concluded that his “appeal” was procedurally defective. At page 6 of the unpublished opinion, Justice Fybel wrote as follows:

“Rich acknowledges the cross-complaint has not been resolved or dismissed. He asserts the cross-complaint ‘no longer serves any purpose and therefore should be dismissed’; however, he has not dismissed the cross-complaint, and its pendency deprives us of appellate jurisdiction.”

Since Rich acknowledged at the Court of Appeal that Hon. Cramin’s 04/19/12 order rendered the cross-complaint pointless, why has Rich now asked this Court to make a ruling which (1) attempts to reverse the order of a co-equal judicial officer (2) using a pleading which moving party concedes serves no purpose? If anything, this motion for summary judgment is nothing more than a defective motion for reconsideration, which Hon. Cramin already disposed of on 05/02/12.

Some observations are worth including in this denial. Service by publication is generally considered to be an option of last resort. Watts v. Crawford (1995) 10 Cal.4th 743, 749 n.5. Before resorting to service by publication, the Plaintiff must first make “a number of honest attempts to learn Defendant’s whereabouts or his address by inquiry of relatives, friends, and acquaintances, or of his employer, and by investigation of appropriate city and telephone directories, the voters’ register, and the real and personal property index in the assessor’s office.” Judicial Council Comment to CCP §415.50. Although Plaintiff’s counsel knew all along that Lee accepted mail service at P.O. Box 9993 in Newport Beach, she failed to discuss the matter with the Court before obtaining the order for publication.

In addition, Commissioner Pacheco’s order of 11/06/09 granting permission to serve by publication included a second order which neither side seems to have taken note of. Plaintiff was “directed to mail a copy of the Summons, along with the Complaint and related documents, and this Order for Publication to Defendant is his address is ascertained before expiration of the prescribed time for publication.” There is nothing in the court file showing the summons/complaint was ever mailed to 10 Morro Bay Drive or P.O. Box 9993, and from the declarations submitted it would appear as though no such effort was made. The order itself was not complied with. Nonetheless, a clerk’s entry of default was entered.

Rich argues the fact that P.O. Box 9993 is a United States Postal box and not one belonging to a private company. Although cases and statutes draw a subtle distinction between the two, the underlying rationale for that distinction is inapplicable here where the defendant makes a public proclamation that the USPS box is his only mailing address by removing his curbside box and having all mail forwarded there. Substantial compliance is sufficient where (1) the record shows partial or colorable compliance with the requirement on which the objection is predicated; (2) the service relied upon by the Plaintiff imparted actual notice to the Defendant that the suit was pending and that he was bound to defend; and (3) the manner and objective circumstances of service were such as to make it highly likely that it would impart such notice. American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 391; Carol Gilbert, Inc. v. Haller (2009) 179 Cal.App.4th 852, 855. Under the circumstances, service by delivering a copy to a person in charge at the Camelback location per CCP §415.20(a) would have been adequate. At the very least, it would have made it virtually impossible to satisfy CCP §473.5.

There is a general rule rooted in California’s State Constitution (specifically art. VI, Sec. 4) that one superior court judge may not overrule another superior court judge, and that an order made in one aspect of the action can neither be ignored nor overlooked in another. Alvarez v. Superior Court (2010) 183 Cal.App.4th 969, 982-983. The rule is explained: “For one superior court judge, no matter how well intended, even if correct as a matter of law, to nullify a duly made, erroneous ruling of another superior court judge places the second judge in the role of a one-judge appellate court.” In re Alberto (2002) 102 Cal.App.4th 421, 427.

Therefore, this Court cannot unwind the 04/19/12 order in order to give Rich standing for his quiet title claim, and without title the cross-complaint fails (as Rich confessed at the Court of Appeal).

Moreover, Hon. Cramin’s ruling is supportable. First, the “absolute” set-aside limitations found in CCP §701.680 may not apply where the underlying debt was surreptitiously acquired. Lang v. Roche (2011) 201 Cal.App.4th 254, 261-264. Second, regardless of §708.680(a), California still recognizes equitable redemption where the homeowner can show (1) grossly inadequate price and (2) inequity on the part of the purchaser. Lang v. Roche (2011) 201 Cal.App.4th 254, 261-262; Gonzalez v. Toews (2003) 111 Cal.App.4th 977, 983. The 04/19/12 order does not clarify the basis therefor, but it is entirely possible that Hon. Cramin found that equitable redemption applied: the purchase price of $200k was far below the purported FMV of $1.9M, and deprived Lee of at least $1M in equity; Rich was an experienced real estate investor who himself was confused as to why Lee was “allowing” the home be foreclosed upon (see Rich Decl ¶2, 6); Rich tried to flip the house for a sizable profit just after acquisition; Rich continued to resist set aside knowing that Lee was wronged; and Lee was ready, willing and able to tender back the purchase price (in fact, the 04/19/12 order included a nearly full tender of the purchase price back to Rich). As the Court in Lang explained (at 264-265):

“The burden cannot be placed on an innocent citizen to timely assert statutory rights afforded by the EJL, when a void judgment underlies the purported execution sale … Giving a wronged individual the proceeds of an invalid execution sale or money damages is not an adequate remedy for a due process violation. Only the return of the innocent individual’s property satisfies the constitutional guarantee that no state may deprive any person of life, liberty, or property, without due process of law.”