# Elbert, Ltd. v. Gross

> California Supreme Court · August 14, 1953 · 41 Cal. 2d 322

URL: https://www.frixlaw.com/law-library/cases/9632198

## Case

- **Full name:** ELBERT, LTD. (A Corporation), Respondent, v. JOSEPH M. GROSS, Appellant
- **Court:** California Supreme Court
- **Decided:** August 14, 1953
- **Citations:** 41 Cal. 2d 322; 260 P.2d 35; 1953 Cal. LEXIS 278
- **Precedential status:** Published
- **Opinion:** Dissent by Shenk
- **Judges:** Edmonds, Shenk, Gibson, Carter, Traynor, Spence, Schauer
- **Cited by:** 26 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9632198

## Opinion text

SHENK, J.
I dissent. This case deals with the effect of a treasurer’s deed issued to satisfy a delinquent street assessment where the owner of the land, the defendant in this case, received no notice whatsoever of the application for the deed as required by section 6550 of the Streets and Highways Code. The majority opinion correctly holds that the defendant was entitled to the written notice required by that section but it also holds that he was cut off from all defenses by the statute of limitations. If an action to invalidate the deed had been brought within the time limit provided for in sections 6571 of the Streets and Highways Code (within six months after the issuance of the deed) it would undoubtedly have been successful because of lack of statutory notice.
The question is whether a statute of limitations can cut off the right of a property owner to contest a treasurer’s deed under the undisputed facts of this case. The defendant was the record owner of the property and entitled under the statute to 30 days’ written notice of the application for the deed. Within that 30-day period he had the right to redeem; and unless and until the notice was given the right to redeem was extended indefinitely. He received no notice whatsoever of the application for the deed. The plaintiff was the owner of the certificate of sale and entitled to institute proceedings to obtain a deed. The statute imposed upon the plaintiff the duty to give the defendant the written notice. It did not do so. It intentionally withheld it and obtained the deed without *333 complying with the statute. It now invokes the statute of limitations to cut off all defenses on behalf of the defendant.
“The essential elements of due process of law are notice and opportunity to defend.” (Simon v. Craft, 182 U.S. 427 [ 21 S.Ct. 836 , 45 L.Ed. 1165 ].) More recently the United States Supreme Court has restated the obvious: “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to . . . afford them [interested parties] an opportunity to present their objections. [Citation.]” (Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314-315 [ 70 S.Ct. 652 , 94 L.Ed. 865 ].)
In the present case the statute required the giving of notice by the party now relying on the statute of limitations, and that notice was not given. Extensive research fails to disclose a case in which a statute of limitations has been allowed to run against a right where the assertion of that right depended on notice from a private party invoking the statute and that notice was not given. The cases proceed on the theory that there must be actual, statutory, or constructive notice. Here there was none and the time did not commence to run by virtue of any provision of law from which notice could be inferred or implied. The periods provided by statute within which redemption might be made and the time within which objections to the deed might be interposed are here held to have expired when that result could be brought about only through the arbitrary discretion and wrongful act of the holder of the certificate of sale in withholding the required notice. The plaintiff’s noncompliance with the statute and its intentional withholding of notice have resulted in depriving the defendant of his property without due process of law. I would hold that the tax deed proceedings were void for lack of due process and that the period of redemption has not expired. The judgment should be reversed.
Schauer, J., concurred.
Appellant’s petition for a rehearing was denied September 10, 1953. Shenk, J., Carter, J., and Schauer, J., were of the opinion that the petition should be granted.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9632198. Public record. Not legal advice.