Petition for Writ of Certiorari — Fleming v. Levy

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i FE OP O*—— a

Supreme Court, U.S, ‘|

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88-1441% FILED

FEB 27 1999

No. | | JOSEPH F. sPanion, a,

IN THE

Supreme Court

of the United States

OCTOBER TERM, 1988

EDWARD J. FLEMING,

Petitioner,

VS.

SHUKI Y. LEVY,

DEBORAH DALE LEVY, and

CHARLES UNDERWOOD,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA,

SECOND APPELLATE DISTRICT, DIVISION FIVE

LAW OFFICES OF

DENNIS A. FISCHER

Alan S. Yockelson

Dennis A. Fischer*

1448 Fifteenth Street

Suite 104

Santa Monica, CA 90404

(213) 451-4815

Counsel for Petitioner

Edward J. Fleming

*Counsel of Record

Dukiichine and Reanhie Rieteanic Gerewrces Ince (PAGES / (317, 474.7255

QUESTIONS PRESENTED

Does the Due Process Clause of the Fourteenth

Amendment require that an individual be afforded

notice and an opportunity to be heard — consistent

with mandatory state statutory authority — when an

appellate court decides issues never raised on appeal or

briefed by the parties?

poe eee

TOPICAL INDEX

QUESTIONS PRESEN LEED ccrccssccccscncnsscsscenctsernnnnees i

BORPRGAL, TICEIIER: cnsinscsincssinsenerecssonnsenanstaqeccionnses we

CONSTITUTIONAL AND STATUTORY

PROV ESEOND EN VOL VIBE) cecccessreccnsessrscsssvesees

STATEMENT OF THE CASE ........ccccccccoscscsscseeee

REASON FOR GRANTING THE WRIT

OF CERT ARE scsssssncsccmssininminisonmiieasannsnes 15

THIS CASE PRESENT A COM-

PELLING VEHICLE FOR THIS

COURT TO ADDRESS THE IM-

PORTANT RIGHTS OF NOTICE

AND OPPORTUNITY TO _ BE

HEARD GUARANTEED BY THE

DUE PROCESS CLAUSE OF THE

FOURTEENTH AMENDMENT IN

THE CONTEXT OF APPELLATE

PROCEEDINGS WHEREIN

ISSUES NEVER RAISED ON AP-

PEAL OR BRIEFED BY THE PAR-

TIES ARE DECIDED WITHOUT

GRANTING PETITION FOR RE-

HEARING AS REQUIRED BY

STATES SEAL U EES wiscsenssssciscentssmanstiontnse 15

a anew

the ea ah hen Melb) Sa NR

CONCLUSION cccccccsssssccccccccsccccscccccccscvcsesscvosesscssooes 23

APPENDIX A

-Opinion of the California Court of

Appeal ...........scccccsocreceeescerescesscssessscsssoseesorssees

- Order Denying Petition for Rehearing ........ A32

APPENDIX B

- Order of the California Supreme Court

Denying Review ..........scsscesssersersssssssesseseees Bl

- Order of the California Supreme Court

Denying Petition for Writ of Mandate ........... B2

—

TABLE OF AUTHORITIES

Page

Cases

Adoption of Alexander S,

44 Cal.3d 857 (1988) ............. i nsscnipsniotanineanns 22

American Surety Co. vs. Baldwin,

BE FT TI I Sirainttitnecsccsncnscteanetininsesess 19

Butler Brothers vs. McColgan,

ED Te TE CD Site hstscccstesccnsincccecisatatece 20

Fuentes vs. Shevin,

BN TT TEED ecinciteteiascdeisnshesnintasesnns 15, 16

Helis vs. Ward, :

8 20

James vs. Appel,

SEY CERO: ccdernensesnintuntinncehcitsnnainniemnate 16

Ohio ex rel. Bryant vs. Akron Metropolitan

Park Dist,

BE CIE: CIE \ ctnciernsiniienanbectnncnsnnssite 16, 17

People vs. Floyd P,

198 Cal.App.3d 608 (1988) ou... eeeeseeeeees 22

People vs. Loudermilk, ;

195 Cal.App.3d 996 (1987) .......cccscccccssereeees 22

Pittsburgh, C.C. & St. L. R. Co. vs. Backus,

SN, CR ncinescccccnsitinsinbiaticsiiien 16, 17

Saunders vs. Shaw,

BOO WR. BEF GRPEGD cciisenscsscccens 17, 18, 19, 20

ee a ee ee .

Statutes

California Business and Professions Code

dias TEIIAT . dsciinicpitscnsanininennnecnenvadentssesnecesenncess 5

California Government Code

petits GE | scccnensccsscsccencccccesssceee 3, 14, 21, 22

Title 28, Under United States Code

SECtiON 1257, SUDA. (3) ......ccccrerrrrrrreeeessssrrererees 3

Rules

California Rules of Court

Bassas B46, BS, BB cccccccnsececcssessscccscoscaceascovesscscescs 3

Texts

18 Pacific Law Journal 539 (1987) .......eseseeeees 22

Constitutions

United States Constitution

Fourteenth Amendment

OL To eeannntiidbhbsorenersunannenaneniin .. 2

In the

Supreme Court

of the United States

EDWARD J. FLEMING,

Petitioner,

vs.

SHUKI Y. LEVY, DEBORAH DALE LEVY,

and CHARLES UNDERWOOD,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF

THE STATE OF CALIFORNIA,

SECOND APPELLATE DISTRICT, DIVISION FIVE

The petitioner Edward J. Fleming respectfully prays

that a writ of certiorari issue to review the judgment of

the Court of Appeal of the State of California, Second

Appellate District, Division Five, rendered on Septem-

ber 13, 1988, following denial of his petition for review

and mandate by the California Supreme Court on

November 30, 1988. This case presents an important

question of law under the Fourteenth Amendment to

the United States Constitution concerning the due

process right to notice and opportunity to be heard,

arising in the context of an appellate proceeding

wherein the California Court of Appeal reached issues

neither briefed or argued by the parties and thereby

extinguished property rights vested in petitioner by a

previous, final trial court order, and the appellate court

thereafter refused to grant petitioner mandatory

rehearing as required by state statute to address the

questions raised by its decision. .

PARTIES TO THE PROCEEDING

Petitioner is Edward J. Fleming, cross-defendant

before the Superior Court for the State of California in

and for Los Angeles County and appellant/petitioner

in the California Court of Appeal. Respondents are

Shuki Y. Levy and Deborah Dale Levy, variously

interveners and respondents in the superior court and

appellate court below. Other parties affected herein are

Thomas R. Morgan, plaintiff, cross-defendant and

appellant, and Charles Underwood, defendant, cross-

complainant and respondent, in the various trial and

appellate court proceedings below.

OPINION BELOW

The opinion of the Court of Appeal for the State of

California, Second Appellate District, Division Five, is

unreported and is reproduced (along with the court’s

order denying petitions for rehearing) as Appendix A

to this petition. The orders of the California Supreme

Court denying review and denying Fleming’s petition

for writ of mandate are also unreported and are

attached as Appendix B.

Nl i Na

JURISDICTION

The judgment of the California Court of Appeal was

filed on September 13, 1988. Petition for rehearing was

denied by the Court of Appeal on October 12, 1988.

The order of the California Supreme Court denying

review was filed on November 30, 1988. Petition for

writ of mandate was also denied by the California

Supreme Court on the same day. Under California law,

the judgment of the Court of Appeal became final

upon the Supreme Court’s denial of review. Cal. Rules

of Court, R. 24, 25, 28. This petition is timely filed

within 90 days of November 30, 1988. The jurisdiction

of this court is invoked pursuant to Title 28, United

State Code section 1257, subdivision (3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourteenth Amendment to the United States

Constitution, section 1, provides in pertinent part: “No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.”

California Government Code section 68081 pro-

- vides:

“Before the Supreme Court, a court of

appeal, or the appellate department of a

superior court renders a decision in a

proceeding other than a summary denial of a

petition for an extraordinary writ, based upon

an issue which was not proposed or briefed by

any party to the proceeding, the court shall

afford the parties an opportunity to present

their views on the matter through supplemen-

tal briefing. If the court fails to afford that

opportunity, a rehearing shall be ordered

upon timely petition of any party.

“This section shall remain in effect only

until January 1, 1990, and as of that date is

repealed, unless a later enacted statute, which

is enacted before January 1, 1990, deletes or

extends that date.”

STATEMENT OF THE CASE

This case has an ancient and complicated history.

Some 25 years ago Thomas Morgan brought suit

against Charles Underwood for specific performance

of an oral partnership agreement. Underwood cross-

complained against Morgan and Edward J. Fleming,

petitioner herein. On March 1, 1971, default judgment

was entered against Fleming and in favor of

Underwood. Underwood was awarded $13,000 in

principal, interest and costs. Underwood obtained a

writ of execution on the judgment, and thereafter the

Sheriff conducted a sale of Fleming’s residence at 2600

Zorada Drive to satisfy the judgment. Underwood was

the high bidder and purchased the Fleming property.

A - 2-3.

Apparently the property changed hands several

times thereafter. The Levys purchased the residence on

May 23, 1978 for $210,000. A-3.

Pl el Es le Bain Sara

On June 4, 1985, petitioner brought a motion to: (1)

set aside and vacate as void the default and default

judgment; (2) cancel and vacate writ of execution; (3)

cancel and vacate abstract of judgment; (4) vacate and

set aside sheriff’s execution sale; (5) cancel sheriff’s

deed; and (6) dismiss cross-complaint against cross-

defendant Edward J. Fleming. CT 1-35. Petitioner

asserted numerous reasons why the default judgment

Underwood obtained against Fleming was void. Ibid.

Underwood was finally served with notice and a

copy of the motion on September 17, 1985. CT 134-

136. Underwood, however, made no appearance. A-3.

On October 9, 1985, after an unreported hearing before

the Honorable Ronald M. George, Judge of the Los

Angeles Superior Court, the matter was submitted. On

October 16, 1985, the court ruled as follows:

“The motion is granted in all respects without

opposition, the file now having been found

and it appearing that the judgment is void

because of (1) improper service of the second

amended complaint; (2) judgment exceeded

the prayer; (3) Hassrick and Fleming’s

declarations establish personal service was

never made on Fleming; and (4) Default was

untimely entered — C.C.P. Sections 473,

581(b), and 583(b).” CT 139.

On December 6, 1985, Judge George signed an order,

drafted by petitioner’s counsel, which vacated the 1971

default judgment in favor of Underwood and restored

petitioner to possession of his former residence.

CT 143-153.

On or about April 7, 1986, a uniformed Los Angeles

County Marshal posted a notice to vacate and writ of

possession at the Zorada Drive home. The notice

required that the premises be vacated by April 12. On

~ or about April 14 the property went into escrow in

anticipation of its sale from the Levys to third parties.

The Levys returned from vacation on April 17 and

found themselves locked out of the Zorada property.

Petitioner moved into the residence. A - 6-7.

On April 23, 1986, the Levys filed an ex-parte

application as “specially appearing third parties” “for

[an] order correcting order of December 6, 1985,

entered as a result of clerical error or inadvertence.”

CT 185-202. The Levys also filed an ex parte

application for orders (1) recalling writ of possession

of real property; (2) quashing levy of writ of possession

of real property; (3) staying execution on order for

possession of real property; (4) seeking temporary

restraining order. CT 203-216. The Levys’ applications

were opposed by petitioner on the basis that they were

not parties to the action and thus had no standing, and

further that paragraph 13 of the December 6, 1985

order enjoined the Levys from asserting an adverse

claim. CT 217-239.

A hearing was held in the Superior Court of the

State of California for the County of Los Angeles on

April 23, 1986, the Honorable John L. Cole, Judge

presiding. I-RT 1. Petitioner’s counsel acknowledged

that the Levys had not been given notice of the 1985

motion to set aside the 1971 default judgment.

However, petitioner asserted that the Levys were

informed at the time they purchased the residence in

1978 of Fleming’s claim to the property. I-RT 9-10.

Judge Cole issued a temporary restraining order and

issued an order to show cause re preliminary

injunction. I-RT 11; CT 240-247.

On April 30, 1986, the Levys filed a “Complaint in

intervention for: 1) Declaratory Relief, 2) Injunction.”

CT 291-304. The Levys’ complaint in intervention was

opposed by petitioner. CT 328-343.

On May 19, 1986, petitioner filed his opposition to

the Levys’ order to show cause for a preliminary

injunction, ex parte application for order correcting

order of December 6, 1985, and ex parte application to

recall writ, quash writ, stay execution on order, and

temporary restraining order. CT 354-381. Petitioner

also filed a separate motion to strike the Levys’

complaint in intervention. CT 382-409. The Levys filed

their responsive pleadings, CT 413-437, and petitioner

replied. CT 438-456.

Petitioner maintained in his pleadings that notice

was not required because the Levys were not parties to

the action and were chargeable with notice of the

invalid judgment. CT 362. Petitioner also urged that

the Levys were not bona fide purchasers and he was

not required to give them notice before dispossessing

them. CT 363-369. The Levys’ pleadings rejoined that

the court should correct “clerical” errors in the order

of December 6, 1985 because the court was misled into

believing that no third parties were involved in the

action. CT 418-423. The Levys also claimed that they

were bona fide purchasers. CT 423-431. Finally, the

Levys maintained that the court was without jurisdic-

tion to quiet title or award petitioner possession of the

property as against innocent third parties without

notice of the action. CT 432-435.

On May 23, 1986, the matter came on for hearing

before the Honorable Ronald M. George, the initial

trial judge. II-RT 1. The court first inquired why

petitioner waited 11 years before seeking to set aside

the 1971 judgment. Mr. Friedlander (Fleming’s then

counsel) explained that petitioner told him that he was

sick, adding that someone else told counsel that

petitioner had cancer. II-RT 9-10. Judge George then

asked,

“... why, in the lengthy recitations involved

in the motion initially noticed for June 4,

1985, and ultimately heard on October 9,

1985, the motion totaling 31 pages with some

detailed history, and various proceedings,

why is there a dearth of post-1974 history, in

particular with regard to good faith pur-

chasers.

“Why was nothing disclosed to the Court

with regard to the present status of the title

and occupancy?” II-RT 12.

Mr. Friedlander replied: “At the point in time when I

prepared the motion I was not concerned with nor

aware of subsequent transfers.” Ibid.

Judge George thereupon confronted Friedlander

with his own admission that he knew of subsequent

transfers prior to the October 9, 1985 hearing. Counsel

was asked whether or not he believed that was a

material change warranting disclosure to the court. II-

RT 13. Friedlander explained that he researched the

effect of Fleming’s subsequent transfers, “[a]nd the

research I did reflected that anybody who holds title

through a title that was defeasible such as would stand

in the same shoes in terms of they would not have

title.” II-RT 14. He denied that he intentionally

withheld such information from the court. Ibid.

Moving on to what the court called the “merits of

the underlying matter”, II-RT 15, petitioner’s counsel

argued that a title search would have put subsequent

purchasers on notice that the 1971 judgment was void.

He argued that the Levys’ remedies lay in suing those

in their chain of title and/or the title insurance

company. II-RT 15-19. When asked whether there was

any evidence showing that the Levys had notice of a

defect in their chain of title, counsel stated that he did

not know “‘because this is in a summary proceeding.”

II-RT 19.

“On the face of the record, unless the Court

postpones the matter to allow depositions to

be taken of the Levys to find out what, if

anything, they knew from the broker or title

insurance company, there is nothing in the

record that would reflect to the Court that

they had any kind of notice, actual notice.”

II-RT 20.

Finally, the court asked petitioner’s counsel why —

given the fact that petitioner sat on his rights for many

years — “‘it is not more equitable to have Mr. Fleming

relegated to a lawsuit against Underwood or other

persons or parties possibly, instead of the Levys... .?”

II-RT 20. Counsel’s only response was that the cases he

read did not raise laches as a bar and that the Levys

had vacated the house prior to petitioner taking

possession. II-RT 21-22. Petitioner argued that the

most the Levys were entitled to was an independent

action to quiet title “so that a judge or jury might

determine, based upon a full exploration of the facts

ee,

and circumstances, as to who is entitled to possession

and title as opposed to each other.” II-RT 24.

In the course of his ruling, Judge George made

several observations. First, he found no justification for

the 11 year delay in seeking to set aside the 1971

judgment. II-RT 43-44. Second, the court noted: “Mr.

Fleming’s present counsel should have by way of

supplemental written presentation or orally at the time

of the hearing on October 9, 1985, brought to the

Court’s attention the fact that Mr. Underwood was no

longer in possession and that in fact there were good

faith purchasers or at least purchasers who might be

purchasers in good faith in existence inasmuch as that

was a material-consideration for the Court.” II-RT 44.

Finally, Judge George observed that “somebody

involved in these proceedings must go to court against

the title company, that given the delay and all the other

circumstances I have alluded to, it is more equitable

that Mr. Fleming, with his laches and other conduct, be

the one to have to obtain monetary damages from the

title comapny [sic] or some prior title holder rather

than the Levys who took in good faith and in the

Court’s opinion without any negligence or transgres-

sion committed by them with regard to these various

proceedings.” II-RT 45. :

Judge George further stated:

“... I would not have signed the order

December 11, 1985, had I been aware of the

existence of subsequent purchasers. That is

subsequent to Mr. Underwood. And certainly

not if I had any indication that they were

bona fide purchasers which I am finding on

ee ee oe ee Y

po, ae

this state of the record the Levys to be.” II-

RT 46.

The court deemed the signing of the order “clerical

error,” “inadvertence,” and encompassing relief broad-

er than intended, especially in regard to relief against

third parties. II-RT 48.

Petitioner’s counsel expressed concern that a finding

that the Levys were bona fide purchasers would

destroy any quiet title action. II-RT 49. The court

responded: “I made only that sort of finding and

observation which I think is pertinent to the resolution

of what is before me and I am not indicating that I am

precluding a full litigation in the quiet title action of

that question.” II-RT 49-50. As the court explained,

although it was modifying its previous order and

restoring the Levys to possession of the property, it was

doing so “without prejudice to any of the parties... -

II-RT 49, emphasis added; see also II-RT 50. The court

also stated: “I have no problem with restoring the

Levys to the possession they were in prior to this order

except that I do not want anything that the Court does to

be taken as a resolution of the claims that Fleming may

have against Underwood.” II-RT 32-53, emphasis added.

The “Order Correcting and Modifying Order of

December 6, 1985 Re Motion of Cross-Defendant

Edward J. Fleming” was signed on June 6, 1986.

CT 483-489. The corrected order still provided that the

default against petitioner and in favor of Underwood

be vacated and set aside. CT 487-489. Petitioner timely

filed a Notice of Appeal “from the ‘Order Correcting

and Modifying Order of December 6, 1985 re Motion

of Cross-Defendant Edward J. Fleming’ filed on

June 6, 1986.” CT 490-491.

Ste ee

Petitioner’s opening brief in the Court of Appeal

raised four issues: (1) Was the June6, 1986

modification of the December)6, 1985 order properly

made under the doctrine of clerical error? App. Opn.

Br. 16-23; (2) assuming the December 6, 1985 order

contained clerical errors, did the court have jurisdic-

tion to enter ancillary orders? App. Opn. Br. 23-24; (3).

the Levys were legally chargeable with notice that

Underwood’s title.was void and that their own title was

defeasible, App. Opn. Br. 25-27; and (4) the court erred

in granting the Levys leave to intervene. App. Opn. Br.

27-31.

At no time did petitioner’s appellate counsel.

challenge the superior court’s determination that the

1971 Underwood judgment was void. In fact, petitioner

specifically disclaimed raising such issues: “[{] As set

forth more fully in Fleming’s motion, the default

judgment was void upon its face. The reasons that it

was void upon its face are not germane to this present

appeal, but are detailed in the motion.” App. Opn. Br.

2, emphasis added.

The Levys’ responsive brief on appeal advanced

numerous points: (1) The trial court had the authority

to correct its previous order under the doctrine of

clerical error, Resp. Br. 10-19; (2) the trial court had

the authority to issue ancillary orders, Resp. Br. 19; (3)

the Levys were bona fide purchasers whose title could

not be dispossessed by a void judgment in their chain of

title, Resp. Br. 20-28; (4) the trial court was without

jurisdiction to quiet title as against third parties who

had no notice of the action, Resp. Br. 28-30; (5) the

Levys had standing to intervene, Resp. Br. 30-33; and

(6) sanctions should be awarded for maintaining a

pee aa

frivolous appeal. Resp. Br. 33-35. At no time did the

Levys address or raise issues concerning the propriety

of vacating and setting aside the default judgment

obtained against petitioner by Underwood.

In the first part of its decision, the California Court

of Appeal concluded that the Levys had standing to

intervene as persons affected by the judgment of the

court below. A - 8-11. In the second part of its opinion,

the Court of Appeal held that the superior court erred

in correcting the December 6, 1985 order on the basis

of clerical error. A - 12-15. However, in an effort to

afford broader relief to the Levys, the Court of Appeal

reached out to decide issues adversely to petitioner

concerning the validity of the Underwood judgment. A

- 15-23.

Additionally, the California Court of Appeal held

that petitioner should be denied all relief because he

proceeded with unclean hands. A - 23-30. The

appellate court declined to impose sanctions, A - 30.

However, pursuant to California Business and

Professions Code section 6086.7, the court notified the

State Bar of California that it had reversed the present

judgment due to willful misrepresentations which

misled the trial court with regard to material facts. A -

31. Finally, the Court of Appeal’s decision vacated

both the June 6, 1986 and December 6, 1985 orders and

directed the trial court to deny petitioner’s June 4, 1985

motion for relief with prejudice. A - 31-32.

On or about September 28, 1988, petitioner filed both

his ‘“Appellant’s Petition for Rehearing” and

‘A ppellant’s Petition for Mandatory Rehearing” in the

Court of Appeal. Petitioner therein urged reconsider-

ation of its decision on the ground that no appeal had

aniline

been taken from the December 6, 1985 judgment. His

petition pointed out that the merits of the issues raised

in his original motion to set aside the default (as

reflected in the December 6, 1985 order) were never

briefed or argued on appeal, and the court had never

given prior notice that it intended to consider and

decide such issues. App. Ptn. Rehg. 3.

Petitioner -further insisted that rehearing was

mandatory under the present circumstances pursuant

to California Government Code section 68081, which

provides in relevant part:

“Before the Supreme Court, a court of appeal,

or the appellate department of a superior

court renders a decision in a proceeding other

_ than a summary denial of a petition for an

extraordinary writ, based upon an issue which

was not proposed or briefed by any party to

the proceeding, the court shall afford the

parties an opportunity to present their views

on the matter through supplemental briefing.

If the court fails to afford that opportunity, a

rehearing shall be ordered upon timely

petition of any party.”

Notwithstanding these grounds, the petitions for

rehearing were denied summarily on October 12, 1988,

without provision for supplemental briefing. A (Order

denying rehearing).

On or about October 21, 1988, petitioner filed both a

“Petition for Review” and “Petition for Writ of

Mandate, Prohibition, Certiorari and/or Other Appro-

priate Relief” in the Supreme Court of California. In

both pleadings petitioner sought relief from the Court

of Appeal’s failure to grant mandatory rehearing

—Sa____——__

pursuant to Government Code section 68081. In both

instances, petitioner asserted that he was denied “his

constitutional guaranty of due process of law... .”

Ptn. for Rev. 12; Ptn. for Writ of Mandate, etc. 18.

Both petitions were summarily denied by the California

Supreme Court on November 30, 1988. B-1.

REASON FOR GRANTING

THE WRIT OF CERTIORARI

THIS CASE PRESENTS A COMPEL-

LING VEHICLE FOR THIS COURT TO

ADDRESS THE IMPORTANT RIGHTS OF

NOTICE AND OPPORTUNITY TO BE

HEARD GUARANTEED BY THE DUE

PROCESS CLAUSE OF THE FOUR-

TEENTH AMENDMENT IN THE CON-

TEXT OF APPELLATE PROCEEDINGS

WHEREIN ISSUES NEVER RAISED ON

APPEAL OR BRIEFED BY THE PARTIES

ARE DECIDED WITHOUT GRANTING

PETITION FOR REHEARING AS RE-

QUIRED BY STATE STATUTE

As this Court emphasized in Fuentes v. Shevin, 407

US. 67, 80 (1972):

“For more than a century the central

meaning of procedura) due process has been

clear: Parties whose rights are to be affected

are entitled to be heard; and in order that they

may enjoy that right they must first be

notified.’ Baldwin v. Hale, 68 U.S. 223, 233.

See Windsor v. McVeigh, 93 U.S. 274; Hovey v.

Elliot, 167 U.S. 409; Grannis v. Ordean, 234

U.S. 385. It is equally fundamental that the

right to notice and an opportunity to be heard

‘must be granted at a meaningful time and in

a meaningful manner.’ Armstrong v. Manzo,

380 U.S. 545, 552.”

The Constitution’s requirement of notice and

opportunity to be heard encompasses more than just

notions of fair play. “Its purpose, more particularly, is

to protect [a person’s] use and possession of property

from arbitrary encroachment — to minimize substan-

tively unfair or mistaken deprivations of property

.... Fuentes v. Shevin, supra, 407 U.S. at 80-81. The

risk of arbitrary deprivations are minimized when an

individual is given the opportunity to be heard:

“For when a person has an opportunity to

speak up in his own defense, and when the

State must listen to what he has to say,

substantively unfair and simply mistaken

deprivations of property interests can be

prevented, It has long been recognized that

‘fairness can rarely be obtained by secret, one-

sided determination of facts decisive of

rights.... [And nJo better instrument has

been devised for arriving at truth than to give

a person in jeopardy of serious loss notice of

the case against him and opportunity to meet

it.’ [Citation omitted.]” Id. at 81.

In spite of the foregoing precepts, it has often been

said that appellate review and petitions for rehearing or

new trial are not essential elements of due process of

law. Pittsburgh, C.C. & St. L. R. Co. vs. Backus, 154 US.

421, 426-427 (1894); James v. Appel, 192 U.S. 129, 137

(1904); Ohio ex rel. Bryant vs. Akron Metropolitan Park

Dist, 281 U.S. 74, 80 (1930). Nevertheless, such broad

statements have always been tempered with the

realization that the guarantee of due process does

contemplate that ample opportunity to be heard must

have been afforded at some stage of the proceedings.

For example, in Pittsburgh, C.C. & St. L. R. Co. v.

Backus, supra, 154 U.S. at 426-427, it was said:

“‘Rehearings, new trials are not essential to due process

of law, either in judicial or administrative proceedings.

One hearing, if ample, before judgment, satisfies the

demand of the Constitution in this respect.” Likewise,

in Ohio ex rel. Bryant v. Akron Metropolitan Park Dist.

supra, 281 U.S. at 80, Chief Justice Hughes explained:

‘As to the due process clause of the 14th Amendment,

it is sufficient to say that, as frequently determined by

this court, the right of appeal is not essential to due

process, provided that due process has already been

accorded in the tribunal of first instance.”

This Court has briefly touched upon claims similar

to those presented by petitioner in Saunders v. Shaw, 244

U.S. 317 (1917). That case involved a state suit for an

injunction against the collection of a drainage tax. At

trial, evidence that the land in question was outside of

the levee system and would derive no benefit was

objected to by the defendant and excluded as

inadmissible. However, such evidence was “spread

upon the record and completed in order to carry the

case to the supreme court.” Id. at 318. Defendant

offered evidence that the land was not in the Gulf of

Mexico. But when plaintiff attempted through cross-

examination to show the physical condition of the

property, defendant successfully objected that the

subject was foreclosed by the court’s previous ruling.

‘iinslincis

Judgment was entered for defendant and intervener,

which was initially affirmed on appeal by the state

supreme court. Id. at 318-319.

Rehearing was granted, however. Recognizing that

the answer and testimony showed that the land in

question was low and marshy, had not been benefited,

and could not be drained, the state supreme court

reversed its prior judgment and granted an injunction

against the assessment upon the land. Saunders, supra,

at 319. Defendant sought a rehearing, which was

denied under a court rule which provided that only one

rehearing should be granted. Ibid. Defendant brought a

writ of error to this Court claiming that he had been

“deprived of due process of law, contrary to the 14th

Amendment, because the case has been decided against

him without his ever having had the opportunity to

present his evidence.” Ibid. This Court agreed with

defendant that his right to due process of law had been

violated and reversed the judgment. Id. at 320.

The Saunders decision also addressed the question of

whether the defendant’s claim of constitutional error

was properly raised. In holding that it was, the Court

explained:

“The record discloses the facts but does not

disclose the claim of right under the 14th

Amendment until the assignment of errors

filed the final day before the chief justice of

the state granted this writ. Of course

ordinarily that would not be enough. But

when the act complained of is the act of the

supreme court, done unexpectedly at the end of

the proceeding, when the plaintiff in error no

longer had any right to add to the record, it

: would leave a serious gap in the remedy for

infraction of constitutional rights if the party

aggrieved in such a way could not come here.

The defendant was not bound to contemplate

a decision of the case before his evidence was

: heard, and therefore was not bound to ask a

ruling or to take other precautions in

advance. The denial of rights given by the

14th Amendment need not be by legislation.

. Home Teleph. & Teleg. Co. v. Los Angeles, 227

U.S. 278. It appears that shortly after the

supreme court has declined to entertain the

petition for rehearing the plaintiff in error

brought the claim of constitutional right to

the attention of the chief justice of the state

by his assignment of errors. We do not see

what more he could have done.” Saunders vy.

Shaw, 224 U.S. at 320, emphasis added.

Subsequent opinions of this Court have cited

Saunders v. Shaw, supra, both for the proposition that

the Fourteenth Amendment right to due process of law

may be implicated when an appellate court surprises a

party or creates some innovation, and that in such

circumstances constitutional claims are timely raised

after the appellate court has thus acted. In American

Surety Co. v. Baldwin, 287 U.S. 156 (1932), for instance,

it was explained:

“The Surety Company petitioned for a

rehearing. In that petition, besides reiterating

several of its previous contentions, it urged,

for the first time, that the rendition of the

judgment on its undertaking violated the due

process clause of the Fourteenth

Amendment. The petition was denied without

opinion. The federal claim there made cannot

serve as the basis for review by this Court.

The contention that a federal right had been

violated rests on the action of the trial court

in entertaining judgment without giving

notice and an opportunity to be heard. The

same ground of objection had been raised

throughout the proceedings but solely as a

matter of state law. There had been ample

opportunity earlier to present the objection as

one arising under the Fourteenth

Amendment. [Citations omitted.] This is not a

case where, as in Saunders v. Shaw, 244 U.S.

317, 320, the federal claim arose from the

unanticipated disposition of the case at the close

of the proceedings in the state Supreme Court.”

Id. at 163-164, emphasis added and footnote omitted.

Similar expressions are found in Helis v. Ward, 308 U.S.

365, 369-370 (1940) and Butler Brothers v. McColgan,

315 U.S. 501, 509-510 (1942).

The instant case, on the other hand, directly

implicates the principles expressed by Saunders.

Petitioner without question was surprised by the

breadth and depth of the California Court of Appeal’s

holding and disposition. Without notice or an

opportunity to be heard, the Court of Appeal decided

issues neither raised on appeal, briefed, or argued by

the parties. No appeal was ever taken from the

December 6, 1985 order vacating and setting aside the

1971 default judgment obtained by Underwood against

petitioner. The relief sought by the Levys was

modification and correction of the December 6, 1985

order to restore them to possession and title of the

ree

aS Dome > Leak

Mrs Wa

residence. CT 185-202. The Levys never challenged the

trial court’s determination that the 1971 Underwood

judgment against petitioner was void. Even on appeal,

the Levys maintained only that they did not and could .

not have notice that the Underwood judgment was void

because it was procured by fraud. Resp. Br. 21-22.

Not even the trial court after learning of the

misleading nature of counsel’s represeniations saw fit

to vacate that portion of the December 6, 1985 order

granting petitioner relief as against Underwood. Cf. II-

RT 43-51; CT 487-489. The Court of Appeal went out

of its way to reach issues not presented on appeal and

to order a dismissal of petitioner’s action against

Underwood, with prejudice, without his having notice

or an opportunity to be heard before important

property rights vis-a-vis Underwood were irrevocably

extinguished. See A - 31-32.

Petitioner called this unanticipated deprivation of

due process to the attention of the Court of Appeal in

two separate petitions for rehearing which he timely

filed after the appellate decision was rendered. In both

petitions, specific reference was made to California

Government Code section 68081, which provides for

rehearing in the appellate courts of California upon

specified conditions:

‘Before the Supreme Court, a court of appeal,

or the appellate department of a superior

court renders a decision in a proceeding other

than a summary denial of a petition for an

extraordinary writ, based upon an issue which

was not proposed or briefed by any party to

the proceeding, the court shall afford the

parties an opportunity to present their views on

a, a

the matter through supplemental briefing. If

the court fails to afford that opportunity, a

rehearing shall be ordered upon timely petition

of any party.” Cal. Gov. Code §68081,

emphasis added.

The note in 18 Pacific Law Journal 539 (1987)

indicates that the provisions of section 68081 are

mandatory. See also: Adoption of Alexander S, 44

Cal.3d 857, 864-865 (1988); cf. People v. Floyd P. 198

Cal.App.3d 608, 612, fn. 2 (1988); People v. Loudermilk,

195 Cal.App.3d 996, 1004, fn. 1 (1987).

California Government Code section 68081 clearly

represents this state’s legislative directive that the

parties involved in appellate proceedings be afforded

the requisite notice and opportunity to be heard which

is encompassed in the due process clause of the

Fourteenth Amendment. When an appellate court

disregards the statutory mandate and broadens the

scope of review in order to decide issues not framed by

the parties, the same concerns about abridging notice

and hearing rights are implicated as in the context of

trial court proceedings. As this Court’s Fuentes

decision? recently observed in the latter setting:

“The constitutional right to be heard is a

basic aspect of the duty of government to

follow a fair process of decision-making when

it acts to deprive a person of his possessions.

The purpose of this requirement is not only to

ensure abstract fair play to the individual. Its

purpose, more particularly, is to protect his

use and possession of property from arbitrary

encroachment — to minimize substantively

unfair or mistaken deprivations of property

ae oa

..+. Fuentes v. Shevin, supra, 407 U.S. at 80-

81.

Those same fundamental principles are no less at

stake when it is an appellate court that reaches out to

decide issues never raised by the parties. When such »

appellate action adjudicates an individual’s claim

pertaining to his or her interest in the use and

possession of property, the result of the court’s denying

a meaningful opportunity to be heard may be drastic —

indeed, the permanent extinguishment of that property

interest.

The constitutional command of due process, as well

as the state’s statutory law encompassing due process

concerns, required that petitioner at least be able to

address issues raised for the first time by the decision

of the California Court of Appeal. Certainly this must

be so when that decision leads directly to the

deprivation and final termination of a person’s

property rights, as occurred in this very case by virtue

of the court’s unrequested, and unwarned, dismissal of

Fleming’s action against Underwood with prejudice.

CONCLUSION

The California Court of Appeal’s refusal to grant

rehearing after its opinion reached issues never raised

on appeal or briefed by the parties was a clear denial of

petitioner’s right to due ; rocess of law as encompassed

by the Fourteenth Amendment to the United States

Constitution. This case raises fundamental constitu-

tional questions heretofore given little or no treatment

in the context of appellate proceedings. Petitioner

_— wR

respectfully prays for the issuance of a writ of

certiorari to address the important question presented

by this case.

Respectfully submitted,

LAW OFFICES OF

DENNIS A. FISCHER

Alan S. Yockelson, Esq.

Dennis A. Fischer, Esq.*

DENNIS A. FISCHER

Attorneys for Petitioner

*Counsel of Record

APPENDIX A

—

APPENDIX A

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THOMAS R. MORGAN, B022367

Plaintiff and (Super. Ct.

Cross-Defendant, No. C845685)

vs.

clshi ef 227502 -Sezaxo 5]

CHARLES UNDERWOOD, FILED

SEP 1 3 1938

)

Defendant and )

Cross-Complainant, )

)

ROBERT N.WILSOM _ Clark

Gisgus, ‘“-1cc%

EDWARD J. FLEMING,

Cross-Defendant and

Appellant,

SHUKI Y. LEVY and

DEBORAH DALE LEVY,

Interveners and

Respondents.

pay. OE

APPEAL from a post-judgment order of the Los

Angeles County Superior Court, Ronald M. George,

Judge. Reversed.

Herzfeld & Rubin, Martin S. Friedlander and David

E. Wheeler for Cross-Defendant and Appellant

_ Fleming.

Cooper, Epstein & Hurewitz, Carl Grumer and

Jeffrey D. Spilman for Interveners and Respondents

Levy.

Mr. Fleming appeals from a post-judgment order

which modified a final judgment of the trial court. The

final judgment, in effect, had quieted title to certain

real property in appellant Fieminig; and the Levys,

blameless third parties who were unknown to the court

at the time of the hearing, were thereby dispossessed.

The post-judgment order sought to remedy the

inequitable result of the earlier ruling. In the interests

of justice, we reverse the trial court by vacating both

the post-judgment order and the judgment, and we

direct the trial court to deny with prejudice Fleming’s

underlying motion for relief.

BACKGROUND

This case has a somewhat complicated history.

Approximately 25 years ago, Thomas R. Morgan

brought an action against Charles Underwood for

specific performance of an oral partnership agreement,

among other causes of action. Underwood cross-

complained against Morgan and against Edward J.

Fleming, the appellant herein. Fleming’s default was

entered, and on March 1, 1971, the trial court found in

favor of Underwood on both the complaint and cross-

complaint. It awarded Underwood approximately

$13,000 in principal, interest, and costs as against

Fleming. In July, Underwood obtained a writ of

execution of the judgment; and in September, after due

notice, the Sheriff conducted a sale of Fleming’s

residence at 2600 Zorada Drive to satisfy the

judgment. Underwood was the high bidder and

purchased the property for approximately $15,000. The

record indicates that Underwood later initiated an

unlawful detainer action to gain possession of the

property.

The property on Zorada Drive eventually was sold to

the Levys, respondents herein, on May 23, 1978, for

$210,000, the fair market value at that time.!

On June 4, 1985, Fleming filed a motion to set aside

and vacate the default judgment, cancel and vacate the

abstract of judgment and writ of excution, vacate and

set aside the sheriff’s execution sale, cancel the

sheriff’s deed, and dismiss underwod’s_ cross-

complaint. Fleming asserted that the judgment was

void on its face.

Mr. Underwood was served with notice and a copy

of the motion, but did not appear.? Although both

! The superior court file, of which we take judicial notice (Evid.

Code § 452, subd. (d) (1)), contains a declaration by Mr.

Underwood, dated April 22, 1986, stating that he “‘long ago sold

this real property to a third party, who sold to yet another third

party, who sold it to yet another third party.” The last sale

presumably was to the Levys.

2 The record reflects that copies of the notice of a June 24

yy eee

Fleming and his Attorney knew at least by the time the

hearing was held on October 9, 1985, that Underwood

no longer owned the property, the Levys were neither

served nor otherwise given notice.

The October 9 hearing was conducted by Judge

George, and only Fleming appeared. Fleming’s

attorney did not inform the court of the Levys. The

hearing and the motion were mailed on May 0 to a law firm

which had represented Underwood in this matter in 1974. The

documents were received on June 6. The firm had not had contact

with Underwood since 1974 and was unable to locate him. An

attorney from the firm, as “‘an officer of the court, ” requested a

continuance of the scheduled June 24 hearing, based in part on the

fact that Underwood had been represented by other counsel in a

1976 unlawful detainer action. Fleming opposed the motion,

insisting that he had served Underwood’s attorneys of record. His

counsel argued that “‘the record in this case reflects that said law

firm is the last attorney of record in this case.” On June 20,

Fleming, through his attorney, provided the firm with the address

of Underwood’s current residence, an address different from that

of the property in dispute. On June 24, Judge Newman continued

the hearing. On July 24, Judge Newman denied Fleming’s motion

on the basis that it was “notice deficient.” On September 17,

Fleming served Underwood.

3 Fleming argues that the applicable law did not require that

notice be served on the Levys because their title derived from that

of Underwood, whose title was void, and that the Levys were

legally chargeable with notice of the void title and the defeasibility

of their own. Fleming points to a number of cases in support of

this argument, especially Bullard v. McArdle . . . 1893) 98 Cal. 355,

DiNola v. Allison (1940) 143 Cal. 106, Mills v. Laing (1918) 38 Cal.

App. 776, and Arrow Sand & Gravel, I Nc. v. Superior Court (1985)

38 Cal.3d 884. However, the cases on which Fleming relies involve

the impact of a pending appeal on various property interest. In the

instant case, no appeal was ever taken from Underwood’s

judgment against Fleming, which stood undisturbed from 1971

until December 6, 1985.

yy ee

superior court file was missing, and no document

before the court reflected that Underwood was no

longer the owner of the Zorada Drive property. The

court took the matter under submission. By minute

order dated October 16, it granted Fleming’s motion.‘

On Ocotober 25, Fleming served notice of the ruling ©

on Underwood’s former attorneys and on Underwood,

the latter by mail addressed to his residence.

In a lengthy letter to the court dated November 20,

more than one month after the motion had been

granted, Fleming’s attorney emphasized that it was

“very important that Mr. Fleming be awarded

restituton of his home and his pesonal property located

therein.” The Levys were not mentioned.° (Please see

addendum.)

4 The superior court file was “missing” and consequently

unavailable to the trial court on at least three occasions during

these proceedings: on June 24, 1985, when Judge Newman

continued the hearing on Fleming’s motion; on October 9, 1985,

when Judge George conducted the hearing; and on May 23, 1986,

when Judge George heard the Levys’ applications for relief. To

better analyze the maaters before us, we ordered the superior court

file; it is woefully incomplete. Even though the case was filed in

the early 1960s, the file contains no original document dated

earlier than Fleming’s June 4, 1985 motion for relief. There are

some photocopies of earlier documents, but these turn out to be

nothing more than the exhibits Fleming garnered in support of his

motion to vacate the underlying judgment. Although the minute

order of October 16, 1985, wherein the court granted Fleming’s

motion, reflects that the court had the file at that point in time,

there is, of course, no indication of its contents.

5 The court was misled by both the oral and written statements

of Mr. Frielander, Fleming’s attorney. To mislead the court is a

violation of one’s oath, duties, and ethical obligations as an

attorney. (Bus. & Prof. Code, §§ 6067, 6068, subd. (d).)

sonsisiidlicess

Enclosed with the letter was an 11l-page draft of a

proposed order which counsel had prepared for

signature by the trial court. The proposed order gave

relief against Underwood, his family, and “all those in

privity with them, whether as assignees, vendees,

transferees, lessees, encumbrancers. attorneys, agents,

6r ‘Otherwise, who have entered under them, whether

with or with out notice of this action ... ” This

language had not been a part of Fleming’s original

motion. In compliance with a request by Judge George,

Fleming served the proposed order on Underwood.

Fleming did not serve the Levys. Judge George has his

clerk inform Fleming’s attorney that the court would

hold the proposed order for 14 days to allow for

objections from Underwood. The file does not indicate

the Underwood filed objections at this time. The order

was signed by the court on December 6, 1985, and was

recorded the same day.

On or about April 7, 1986, during a period when the

Levys were on vacation in Mexico, a uniformed Los

Angeles County Marshal posted a notice to vacate and

writ of possession at the Zorada Drive property. The

notice required that the property be vacated April 12.°

On or about April 14, the property went into escrow in

anticipation of its being sold by the Levys to a Mr. and

Mrs. Myers. They Levys returned fron their vacation

Underwood,” stated in part: “If you claim a right to possession of

the property accruing prior to the commencement of the Unlawful

Detainer action, or claim to have been in possession of the

property on the date of the filing of the Unlawful Detainer action

and are not named in the attached writ, contact the Marshal’s

Offices set forth on this Notice.” There is nothing before us which

reflects that Fleming had filed an action in unlawful detainer.

on April 17 to find that they had been locked out of the

Zorada Drive property. Fleming proceeded to move

into the residence.

(The superior court file discloses that on April 22,

1986, Underwood, represented by a new attorney, .

applied ex parte to Judge Newman for a temporary

order restraining further enforcement of Fleming’s

writ of possession until the court could reconsider

Fleming’s motion to vacate the underlying judgment.

In support of his application, Underwood declared that

Fleming had been served in the underlying action.

Fleming opposed the application on the basis that the

December 6 order had enjoined Underwood from the

proceedings, that Underwood had been properly served

with Fleming’s motion to vacate, that there was a

substantial likelihood that personal property remaining

in the Zorada Drive property, as referenced in the

December 6 order, would disappear because a stay

would give Underwood time to conceal the property,

and that personal property valued at over $745,000

which Fleming had recently moved into the Zorada

Drive residence “‘might well‘disappear’ ” if there were

any delay. Underwood’s application was denied.

Fleming’s attorney expected Underwood to file a

motion to reconsider the December 6 order, but the file

does not reflect that such motion was filed or that any

hearing on the matter was held.

In several appearances before the trial court, the

Levys applied for relief. In an order dated June 6,

1986, “correcting and modifying” the order of

December 6, 1985, the court omitted language in the

original order which had restored the real property to

Fleming, and instead, restored possession to the Levys.

Fleming appeals.

—\

DISCUSSION

Fleming contends that the Levys did not have

standing to intervene and the the court otherwise erred

in modifying the December 6, 1985 order.

Respondents contend that this appeal is frivolous

and request an award of sanctions.

1. Standing.

Fleming first contends that the Levys, who were not

parties to the underlying action of Morgan y.

Underwood, failed to comply with the requirements of

Code of Civil Procedure section 387, subdivision (a)

(387 (a)) and therefore did not have standing to

. intervene. Whether the standards for intervention have

been met is a determination left to the sound discretion

of the trial court. (Northern Cal. Psychiatric Society v.

City of Berkeley (1986) 178 Cal.App.3d 90, 109.)

Section 387(a) provides in pertinent part as follows:

“Upon timely application, any person, who has an

interest in the matter in litigation, . . may intervene in

the action or proceeding. An intervention takes place

when a third person is permitted to become a party to

an action or proceeding between other persons, . . .and

is made by complaint, setting forth the grounds upon

which the intervention rests, filed by leave of the court

and served ...upon the attorneys of the parties who

have appeared,. . .in the manner provided for service of

summons or in the manner provided by Chapter 5

(commencing with Section 1010) Title 14 of Part 2...”

Parties may intervene, if otherwise appropriate, at

any time, even after judgment. (Mallick v. Superior

Court (1979) 89 Cal.App.3d 434, 437.) A right to

oe b

eee

_—

intervene should be asserted within a resonable time,

and an intervener must not be guilty of an

unreasonable delay after knowledge of the suit. (Allen

v. California Walter & Tel. Co. (1947) 31 Cal. 2d 104,

108.) In the matter before us, the Levys were

completely unaware of the instant case prior to April °

17, 1986, when they returned from their vacation and

found that they were locked out of the Zorada Drive

property. By April 23, they were before Judge Cole

seeking relief under an ex parte application for a

temporary restraining order and for an order

“correcting” the December 6 order. Obviously, the

Levys were diligent in asserting their rights, which

shortly led to their being made parties to the action>

After much discussion, neither the court nor the

Levys were sure whether they should bring a separate

action or continue in the instant case in their quest for _

relief. The court clearly recognized the intent of the

Levys to become involved and granted them immediate

relief through a temporary restraining order and order

to show cause why the court should not modify the

December 6 order and give additional relief. The court

further ordered the Levys to post bond and to

personally serve on Fleming’s attorneys a copy of the

order “together with the Ex Parte Applications,

Declaration and Memorandum of Points and Authori-

ties filed herein” not later that April 28. The Levys met

all conditions. The court granted the Levys leave to file

appropriate pleadiings by May 6. Their complaint in

intervention, setting forth grounds, was filed April 30.

As Fleming points out, the file does not contain a

proof of service of the complaint. However, Fleming’s

counsel declared, in support of a motion to strike the

complaint in intervention, that on May 14 he had

—A10—

received a copy of the complaint file stamped April 30,

1986, and a proof of service by mail dated May 13,

1986.

An intervener becomes an actual party to the suit by

virtue of the order authorizing him to intervene.

(Hospital Council of Northern California v. Superior

(1973) 30 Cal.App.3d 331, 336.) At the May 23 hearing

on the order to show cause, Judge George explicitly

granted the Levys’ request for standing. This was

reflected in his order filed June 6.

Although the above facts indicate that the Levys

indeed acquired standing as interveners, Fleming

argues that this is not so because the court failed to

state either during the May 23 hearing and or in its

June 6 order that it was giving nunc pro tunc effect to

the complaint in intervention file April 30. Fleming

fails to cite any authority for this position.

It has been held that one may be allowed to intervene

on oral motion without supporting documents when

the motion is made in the presence of the attorneys for

the parties and the applicant adequately informs the

court and the parties of the basis for the motion. (Simac

Design, Inc. v. Alciati (1979) 92 Cal.App.3d 146, 157.)

Here, Fleming was represented at every hearing and

was timely served with all documents. There was no

confusion regarding the grounds on which the Levys

desired to intervene, albeit there was some indecision as

to procedural matters.

The purpose of 387(a) is to promote fairness, to

insure maximum involvement by all responsible,

interested persons affected by the judgment, to obviate

delay, and to prevent a multiplicity of actions. (Mary

R. v. B& R. Corp. (1983) 149 Cal.App.3d 308, 314.)

Without warning, the Levys had lost title and physical

—Al1l—

access to their property. Judge George made the

appropriate order; there was no abuse of discretion.

2. The June 6 Order.

a. Judicial Error

The grounds on which the Levys sought injunctive

relief and amendment of the judgment were that the

December 6 order had been entered as the result of

clerical mistake or inadvertence and did not reflect the

intention of the trial court since the order, drawn by

Fleming’s attorney, far exceeded the relief originally

requested. The trial court agreed and based its June 6

order on its conclusion of law that the December 6

order had been signed as the result of clerical error.

There is both an inherent and a statutory right for a

court to cause its judgment to be correctly set forth.

(Estate of Eckstrom (1960) 54 Cal. 2d 540, 547; Gravert

v. DeLuse (1970) 6 Cal.App.3d 576, 582.) However,

while a court can correct the record of the judgment, it

cannot alter the judgment actually rendered, “even

though the propsed amendment contains matters

which ought to have been so pronounced.” (Estate of

Eckstrom, supra, 54 Cal.2d at p. 544.) This doctrine is

usually explained through the use of the terms

“judicial error” and “clerical error.” The distinction is

“‘whether the error was made in rendering the

judgment, or in recording the judgment rendered.’

Citation.] ... [{] An amendment that substantially

modifies the original judgment or materially alters the

rights of the parties, may not be made by the court

under its authority to correct clerical error. . .unless

the record clearly demonstrates that the error was not

the result of the exercise of judicial discretion.

—A12—

[Citation.]” (In re Canderlario (1970) 3 Cal.3d 702, 705;

and see Craven v. Crout. . .1985) 163 Cal.App.3d 779,

782.) In Gravert v. DeLuse, supra, 5 Cal.App.3d at page

581, it was said that {t]he disctinction between a

clerical error and a judicial error . . . does not depend

so much on the person making it as on whether it was

the deliberate result of judicial reasoning and determina-

tion.”

In determining whether an error is clerical or

judicial, great weight should be placed on the

declaration of the judge as to his or her intention in

signing the order. (Gill v. Epstein (1965) 62 Cal.2d 611,

615.) Where there is a conflict in the evidence, the

conclusion of the trial court will probably be accepted

on review; however, where the record clearly shows

that there was no clerical error, the recital of the trial

court will not be conclusive. (Morgan v. State Bd. of

Equalization (1949) 89 Cal.App.2d 674, 682; Nathanson

v. Murphy (1957) 147 Cal.App.2d 462, 469.)

In the case at bar, the trial court stated as a

conclusion of law in its June 6 post-judgment order

that the December 6 order had been signed as the

result of clerical error. Our review of the evidence

shows that the trial court was sufficiently uneasy about

Fleming’s motion that it delayed signing the judgment

for 15 days in order to give Underwood, the only

interested party of whom the court was aware, an

additional chance to be heard. Then, based on the

documents put forward by Fleming and on inferences

drawn from representations made by his attorney, the

court ultimately gave the relief sought. That relief

effectively quieted title in Fleming. Thus, the trial

court did exercise its judicial discretion.

—A13—

When the court learned of the resulting plight of the

Levys, it attempted to roll back the judgment by giving

Fleming relief only as against Underwood. However, a

court cannot amend a final judgment simply on the

basis that new evidence has come to light. (Cf. Stevens

v. Superior Court (1958) 160 Cal.2d 264, 270.) In

addition, the relief granted to the Levys was

accomplished through a substantial modification of the

original judgment, and that modification materially

altered Fleming’s rights: he no longer had title or

access to the Zorada Drive property.

There is no conflict in the evidence, and our review

of it leads us to conclude that the error cannot be

termed “clerical.” The decision which the trial court

later sought to correct was the result of judicial

reasoning and determination and therefore could not

be modified under the clerical error doctrine.

At this point, we briefly discuss a case cited by

Fleming in support of his argument that the court’s

error, if any, was judicial and not clerical: Landton v.

Superior Court (1936) 5 Cal.2d 694. Fleming

specifically calls to our attention the following

language from that case: “If the Court miscontrued the

evidence before it, or misapplied the laws applicable to

the facts disclosed by the evidence, or was even misled

by counsel such an error was in no sense a clerical error

which could thereafter be corrected by the court.. ..”

(At p. 696; emphasis supplied.) Fleming seeks to

expand this language to cover a fraud on the court: his

failure to disclose that Underwood no longer owned the

subject property. Lankton has never been cited for this

purpose. Furthermore, an examination of Lankton and

of the cases on which it ultimately relies shows that

“misled” is used only in the sense of “inadvertent.”

_\)

(First National Bank of Fresno v. Dusy (1895) 110

Cal.77; Forquer et al. v. Forquer (1857) 19 Ill. 68, 71.)

Although we conclude that the court’s error was not

clerical, we decline to apply the language of Lankton to

the facts of the case at bar.

While relief was not available to the Levys under the

clerical error rule, other grounds exist.

a. Fleming’s theory of relief.

In his motion to vacate the underlying judgment,

Fleming asserted that the judgment was void on its face

on the eight separate grounds. A judgment is not “void

on its face” unless its invalidity is apparent from an

inspection of the judgment roll. (People v. Davis (1904)

143 Cal. 673, 675.) As discussed below, we conclude

that Fleming’s assertion is without support. We

consider the eight grounds seriatim.

(1) With regard to the summons and second

amended cross-compiaint, he was never personally

served as “Edward J. Fleming” and service on

“Edward J. Flemming” was based on a false return of

service.

A slight error in spelling which does not destroy the

virtual identity of the name (idem sonans) can be

entirely disregarded. (Brum v. Ivins (1908) 154 Cal. 17,

20.) The misspelling of “Fleming ” is such an error,

and it could have been readily corrected by amendment

of the return or testimony as to service. See

“Comment-Judicial Council” uner section 417.10 of

the Code of Civil Procedure as set forth in West’s

Annotated Code, which provides in pertinent part:

“(I]f the process is in correct form, properly issued and

served, and the proof of service is timely filed with the

_—

clerk, a defective affidavit will not destroy jurisdiction;

the court may permit an amendment of the affidavit to

conform to the facts.” (Ginns v. Shumate (1977) 65

Cal.App.3d 802, 806.)

The summons and return of service are part of the

judgment roll (Code Civ. Proc., § 670, subd. (b)), and

both documents show service on “Edward J. Flem-

ming.” Fleming’s argument that he was never

peronally served is based on his own declaration and on

a statement by Royal M. Hassrick. These documents

were submitted in support of his motion to vacate and

are outside the judgment role. (Code Civ. Proc., § 670

subd. (b).)

(2) Fleming was never personally served with the

motion to correct the spelling of his name nunc pro

tunc on the cross-complaint so amended, and no

declaration of personal service in the file establishes

that he was personally served with these documents.

Therefore, the effect of the amendment was to add a

new cross-defendant -- Edward J. Fleming -- after the

statute of limitations had run.

Notice of these subsequent proceedings, which

amended the complaint as mere matter of form, was

not required after Fleming’s default was duly entered.

(Code Civ. Proc., § 1010, Heathman v. Vant (1959) 172

Cal.App.2d 639, 647, Thompson v. Cook (1942) 20 Cal.

2d 564, 568; and see Engelbretson & Company, Inc. v.

Harrison (1982) 125 Cal.App.3d 436, 440.)

(3) The summons on the second amended cross-

complaint was allegedly served on June 24, 1970, and

returned on July 3, 1970, in violation of the three-year

provision of 581la, subdivision (a).

Former section 58la, subdivision (a) generally

provides for mandatory dismissal if return of service is

—A16— i

not made within three years after commencement of an

action. However, this requirement did not apply to

cross-complaints until subsection (b) was added in

1970. (See e.g., Welden v. Davis Auto Exchange (1957)

153 Cal.App.2d 515, 519.) The original cross-complaint

in the case at bar was file October 1, 1964; the first

amended cross-complaint was filed November 30,

1964; and the second-amended cross-complaint was

filed September 16, 1969. The former rule does not

apply.

The modern rule is that a judgment based on a late

return of summons is irregular, but not void. (National

Diversified Services, Inc. v. Bernstein (1985) 168

Cal.App.3d 410, 415-416.)

No motion to dismiss had ever been made in this

action prior to Fleming’s motion of June 4, 1985.

(4) The default against Edward J. Flemming was

entered on March 2, 1971, more than five years after

the filing of the original cross-complaint in violation of

Code of Civil Procedure section 583, subdivision (b).

Former section 583, subdivision (b) provides for

dismissal of an action which is not brought to trial

within five years. However, the period of pendency of

an appeal is excluded from the five-year computation

(City of Pasadena vy. City of Alhambra (1949) 33 Cal.2d

908, 916-917), as well as the period of time between

date a default judgment is entered and the date the

default is set aside (Heward v. Cromwell (1963) 216

Cal.App.2d 613, 616). In Fleming’s own motion to

vacate he states that the court entered judgment on the

complaint in favor of Morgan as against Underwood

on April 12, 1967, which was affirmed on appeal by

remittitur filed April 4, 1969, and that on June 30,

1969, Underwood filed a motion to vacate the default

4 Seer

— heh

and default judgment entered against him, which was

granted September 10, 1969. None of the relevant

documents is contained either in the record before us

or in the superior court file. Under Fleming’s own

pleading it appears that the running of the five-year

period was tolled for roughly two years, and therefore

Fleming’s default was entered within the five year

period.

(5) In violation of section 580, the second amended

cross-complaint did fiot pray for interest and the

request to enter default did not request intereg.

Section 580 provides: “‘The relief granted to the

plaintiff, if there be no answer, cannot exceed that

which he shall have demanded in his complaint... .”

As stated in National Diversified Services, Inc. v.

Bernstein, supra, ““The policy behind this statute is that

a defendant is entitled to be informed of the maximum

liability which he will face if he chooses to default.

[Citations] (168 Cal.App.3d at p. 417.) Under the first

cause of action of the second amended cross-complaint

Underwood states that “there is now due and unpaid

from cross-defendants to cross-complainant the sum of

$5,500.00 with interest thereon at the rate of 7% per

annum from July 5, 1964.” This is nothing more than

legal interest. The statement in the body of the

complaint was adequate to inform Fleming of his

liability.

The entry of a default by the clerk is merely a

ministerial act (Bristol Convalescent Hosp. v. Stone

(1968) 258 Cal.App.2d 848, 862), and it is not essential

to the entry of a valid judgment against a defendant

(Crouch v. H.L. Miller & Co. (1915) 169 Cal. 341, 345). A

clerk has the authority to enter a default judgment for

amounts alleged and prayed for where the judgment is

—A18—

based on an oral promise to pay specific sums set forth

in an action arising on contract for the recovery of

money. (Norman v. Berney (1965) 235 Cal.App.2d 424,

430-431.) The clerk may enter judgment where a

contract provides for some definite, fixed amount of

damages or where such may be ascertained by

computation made by the clerk. (Ford v. Superior Court

(1973) 34 Cal. App.3d 338, 342.) In the case at bar,

damages were based on causes of action for breach of

contract, the amounts were clearly set forth, and

nothing more than legal interest was requested. As

discussed above, the complaint gave notice of the

extent of liability to the defaulting defendant. The

omission of the clerk to include legal interest could

easily have been corrected. In addition, a request to

enter default is not part of the judgment role. (Code of

Civ. Proc., § 670, subd. (b).) The omission did not result

in a judgment void on its face.

(6) The request to enter default filed September 15,

1970, did not request costs, nor did the memorandum

of costs attached to said request include costs.

The second amended cross-complaint prayed for

costs. The photocopy of the relevant page of the

September 15 request to enter default is of such poor

quality that we cannot ascertain whether or not the

costs were included. In any event, as in (5), above, such

an omission did not make the judgment void on its face.

(7) The file does not reflect that Fleming was served

with a memorandum of costs although the judgment

included an award of costs.

A memorandum of costs is not part of the judgment

role. (Code Civ. Proc. § 670, subd.(b).) Many

documents are missing from the file.

—A19—

(8) The sum requested in the second cause of action

is included in the first cause of action and therefore the

judgment exceeded the prayer as measured by the body

of the complaint.

We construe the language of the two causes of action

to mean that various breaches by the cross-defendants '

resulted in damages of $5,000 with respect to each of

two separate undertakings. The figures are accurately

reflected in the prayer. The defaulting cross-

defendants were thus on notice regarding this potential

liability, and the judgment is not void on its face on this

basis.

In summary, there is no support for Fleming’s

assertion that Underwood’s judgment against Fleming

is void on its face.

While judgment void on its face may be set aside by

motion with no limit on the time within which the

motion must be made (Young v. Young (1970) 14

Cal.App.3d 1, 4), a judgment valid on its face may be set

aside on the ground that it is void only on a motion

made within a reasonable time. (Smith v. Jones (1917)

174 Cal. 513, 516.) Generally, a reasonable period of

time has been held to be one year from entry of

judgment. (See People v. One 1941 Chrysler (1947) 81

Cal.App.2d 18, 25.) In the case of a false return of

summons, which Fleming asserts as a ground in his

motion to vacate, the motion can be made after a year

has elapsed: the time limit is “‘a reasonable time from

discovery of the default judgment irrespective of when

it may actually have been entered. [Citations.]” (Munoz

v. Lopez (1969) 275 Cal App.2d 178, 181.) ““Reasonable

time” from date ofdiscovery by analogy to former Code

of Civil Procedure section 473a (now § 473.5) is limited

to one year. (Estate of Estrem (1940) 16 Cal.2d 563,

—A20—

571; Sullivan v. Sullivan (1967) 256 CalApp.2d 301, 304;

cf. In re Marriage of Stevenot (1984) 154 Cal.App.3d

1501 [held as a matter of law that one-and one-half

year delay in seeking relief after due notice of entry of

default is unreasonable].)

“In determining whether the delay by the

complainant in seeking relief has been unreasonable,

many circumstances are to be considered. Although

length of time in itself, aside from its likelihood of

producing hardship, is not a bar, nevertheless the

length of time which has elapsed from the time when

the complainant knew or should have known of the

facts... is an important element where no reason is

suggested for the delay.’ ” (Alexander v. Abbey of the

Chimes (1980) 104 Cal.App.3d 39, 48.) As more fully

discussed below, Fleming knew of the default judgment

at least by the time he was evicted in 1976, and

evidence strongly suggests that he knew much earlier.

The record reflects that Fleming did nothing to set

aside the default and default judgment for approxi-

mately 10 years. And, as Judge George noted, Fleming

offered no evidence of any kind to explain the delay.

We hold as a matter of law thgt Fleming’s motion to

vacate the underlying judgment was not brought within

a reasonable time of his having actual knowledge of the

judgment.

c. Unclean Hands.

It is a familiar rule that one who seeks the

interposition of a court of equity must come into court

with clean hands. (London vy. Marco (1951) 103

Cal.App.2d 450, 453.) The doctrine is not restricted to

cases of actionable fraud. (McDougall v. O’ Hara (1954)

—A21—

129 Cal.App.2d 12, 14.) “For it is not only fraud or

illegality which will prevent a suitor from obtaining

equitable relief. Any unconscientious conduct upon his

part which is connected with the controversy will repel

him from the form whose very foundation is good

conscience. [Citation.]” (DeGarmo v. Goldman (1942)

19 Cal.2d 755, 764.) And, “i]f the record shows upon its

face that the moving party has failed to act in good

faith with the court, that is, has instituted a proceeding

or motion with unclean hands, it is the duty of a

reviewing court in the interest of justice to determine

the propriety of the judgment, decree or order of the

trial court.” (Katx v. Karlsson (1948) 84 Cal.App.2d

469, 473.)

Our investigations have disclosed that an unlawful

detainer action brought by Underwood against Flem-

ing in 1975 is integrally related to the issues at bar. The

record of that action reveals that Fleming was aware

of his rights long ago. We take judicial notice of case

number C138890. (Evid.Code, § 452, subd. (d)(2).)

The unlawful detainer file reflects the facts which

follow. A judgment in favor of Underwood on his

cross-complaint against plaintiff, cross-defendant Mor-

gan and cross-defendant Fleming was entered on

March 16, 1971. On July 23, 1974, a writ of execution

was issued, directing the sheriff to levy on Fleming’s

Zorada Drive property. On July 24, the sheriff levied

on the property. Statutory notice was given, and the

property was sold at public auction to Underwood on

September 12. Under Code of Civil Procedure section

redeem the property by payment of the judgment. No

redemption was made or attempted by Fleming or

anyone else during that period. On September 17, 1975,

—A22—

the sheriff executed and delivered to Underwood a

sheriff’s deed, which was duly recorded. On October 3,

Underwood caused to be served a three-day notice to

quit and deliver up the premises. A complaint in

unlawful detainer was filed October 14. Numerous

attempts were made to serve cross-defendant Fleming

and plaintiff and cross-defendant Morgan, who

apparently were the sole occupants of the Zorada

Drive property at this time. Substituted service was

eventually effected. On or about November 12, a copy

of a request to enter default in the unlawful detainer

action was mailed to Fleming and to Morgan. The

envelopes were sent back marked “refused,” but their

condition indicated that they had been opened and

resealed. On December 5, default was entered against

Fleming and ‘Morgan. Trial was set for January 7,

1976.

Judgment was in favor of Underwood and a writ of

execution entitling Underwood to possession was

issued on or about January 12. On or about January 22,

1976, Fleming appeared ex parte and obtained a stay of

execution pending a motion to vacate. Fleming argued

that the underlying judgment on the cross-complaint

was void and as a consequence the judgment in

unlawful detainer was void as well. His attorney

declared that Fleming had “filed a Notice of Motion to

Vacate” the underlying judgment. The following

grounds for vacation were set forth as part of his

attorney’s declaration: That on March 25, 1971,

Fleming filed a declaration of homestead; on March

12, 1973, he filed a voluntary petition in bankruptcy

which resulted in the judgment for approximately

$13,000 being discharged and in exemption of the

Zorada Drive property; and that because of the

misspelling of his mame, he had no actual or

—A23—

constructive notice of the abstract of judgment.

Fleming’s attorney also declared: “Apparently, from

the court files, it appears that my client, Mr. Fleming,

who was erroneously sued as a cross-defendant as

Edward J. Flemming, aka Mark Roberts, was served

on June 24, 1970, almost six years after the date of the °

original action.”~

Elsewhere, Fleming stated additional grounds: that

the default in the underlying action was entered more

than five years from the date the original action had

been filed; that “it is this moving party’s belief that said

judgment is void on its face because of the time gap

between issuance of summons and the service of

same”; entry of judgment was in excess of five years;

and that he had never been personally served or

adequately notified in the unlawful detainer action.

Fleming requested the court to take judicial notice of

the file of the underlying action.

Fleming submitted an “affidavit” that he had never

been personally served nor had he avoided service in

the unlawful detainer action. Morgan’s “affidavit”

stated that he had found certain notices on January 14

and had turned them over to an attorney.

Underwood opposed the stay and the motion to

vacate on the following grounds: The motion to vacate

had been filed without points and authorities in

violation of various rules of court and, furthermore,

should have been brought in the underlying action; the

abstract of judgment in the underlying action had been

filed prior to Fleming filing for bankruptcy, and

Fleming had not listed Underwood as a secured

creditor in his petition; the five year and three year

statutes (Code Civ. Proc., §§ 581, subd. (a) and 583)

had not been violated because an appeal had tolled the

—',

statutes; that neither Fleming nor Morgan had

submitted legally sufficient affidavits and that their

statements had not even been signed under penalty of

perjury.

Underwood submitted his declaration that when he

had accompanied a deputy sheriff to the residence in

an attempt to serve Fleming, the person who answered

the door identified himself as Royal Moran Hassrick

and stated that he was and had been the sole resident of

the house for the previous four years. Underwood

heard movement within the house during this

conversation.

A Mr. Monson, who lived next door to Fleming,

declared that the residence had been occupied by two

people for six to seven years, but that over the last three

to four years, the occupants had refused to answer the

door on numerous occasions.

Underwood submitted proof that Fleming had been

convicted of mail fraud and use of a fictitious name in

mail fraud.

The trial court lifted the stay and denied Fleming’s

motion without prejudice. Fleming was evicted on

January 13, 1976. The files do not indicate that

Fleming ever renewed his motion.

None of the above information was disclosed to

Judge George, and all that was before the trial court

was Fleming’s unopposed motion for relief from the

1971 judgment on the cross-complaint. That motion

sets forth grounds nearly identical to those on which

Fleming relied in 1976. The only important new

ground in Fleming’s 1985 motion for relief is his

assertion for the first time that he was never served in

the underlying action. The only evidence he has

submitted in support of this argument is his declaration

—A25—

that he was never served and a statement by Royal M.

Hassrick that he and.Fleming had been in Colorado

together during the time in which personal service was

said to have occurred. According to this document, Mr.

Hassrick executed his statement at Kolonia Ponape, in

the Caroline Islands, a United States Trust Territory.

It fails to include the required language “‘under the

laws of the State of California....” (Code of

Civ.Proc., § 2015.5)

“«*The burden is on the one coming into a court of

equity for relief to prove not only his legal rights but

his clean hands, and he may not rely on any

deficiencies that may be laid at the door of the [other

party]. [Citation.]’ ” (Katz v. Karlsson, supra, 84 Cal.

App.2d at p. 475.) The record in this case speaks for

itself. It is replete with evidence of a well prepared

plan to “work the system.” Aware that past witnesses

probably would be scattered, that Underwood no

longer had any direct interest in the property, that

courts are jammed with cases, and that judges must of

necessity rely on the good faith of counsel, Fleming

moved for relief. He refused to properly notice

Underwood until ordered to do so by Judge Newman.

As Judge George found below, Fleming and his counsel

“knew prior to [the October 9 hearing] that

Underwood had transferred title to the property. . .to

third parties, but failed to disclose this material fact to

the Court at any time prior to May, 1986.” Fleming

also failed to bring the unlawful detainer action to the

attention of Judge George even though it was directly

related to the issues before the court. After his motion

for relief was granted, Fleming waited more than a

month before presenting Judge George with the

proposed judgment. The document set forth relief far

beyond that granted when the trial court ruled on the

—A26—

motion to vacate. The judgment was signed December

6, 1985, and was recorded the same day. However,

Fleming, in an act akin to lying-in-wait, chose to

execute on his judgment four months later during a

period when the Levys had begun to move out of the

house in preparation for its sale and were on vacation

in Mexico.

“The ‘clean hands’ rule is of ancient origin and

given broad application. It is the most important rule

affecting the administration of justice. ‘Equity denies

affirmative relief for such conduct even though it

thereby leaves undisturbed and in ostensible full legal

effect acts or proceedings which would affirmatively

be set aside but for such consideration. [{] ‘The maxim

is based on conscience and good faith. It is not strictly

or primarily a matter of defense, but is invoked on

grounds of public policy and for the protection of the

integrity of the court.’ [Citation.]” (Katz v. Karlsson,

supra, 84 Cal App. 2d at p. 474.) Fleming’s acts show

not only bad faith but contempt for the administration

of justice. Public policy and the integrity of the court

demand that Fleming be denied all requested relief on

the ground that he proceeded with unclean hands, and

we so hold.

3. Sanctions.

We cannot hold that the appeal was frivolous within

the meaning of In re Marriage of Flaherty (1982) 31

Cal.3d 637, and therefore decline to award sanctions.

—A27—

4. Notice to State Bar of Attorney Miscon-

duct.

Business and Professions Code section 6086.7

provides: “Whenever a reversal of a judgment in a

judicial proceeding is based in whole or in part upon '

misconduct, incompetent representation, or willful

misrepresentation by counsel, the court that ordered

reversal of the judgment shall cause the matter to be

reported to the State Bar for investigation with regard

to the appropriateness of initiating disciplinary action

against the attorney. The court shall also notify the

attorney involved that the matter has been referred to

the State Bar of California for investigation.” Our

reversal of the judgment in the case at bar is based in

part on the November 20, 1985 letter by Martin S.

Friedlander, one of Fleming’s attorneys, to Judge

George, which misled the trial court with regard to a

material fact: that the property no longer was owned

and occupied by Mr. Underwood. Therefore, as

mandated by section 6086.7, the matter shall be

reported to the State Bar for investigation and Mr.

Friedlander shall be duly notified.

—A28—

DISPOSITION

We reverse the trial court and order that the post-

judgment order of June 6, 1986, be vacated, that the

judgment of Decemer 6, 1985, be vacated, and that the

trial court deny with prejudice the motion for relief

filed by Mr. Fleming on June 4, 1985.

In the interests of justice, costs on appeal are

awarded to respondents.

NOT TO BE PUBLISHED

LUCAS, PJ.

We concur:

ASHBY, J.

BOREN, J.

—A29—

[ADDENDUM]

HERZFELD & RUBIN

ATTORNEYS AT LAW

[Illegible]

November 20, 1985

The Honorable Ronald M. George

Judge Presiding, Department 84

Los Angeles Superior Court

111 North Hill Street

Los Angeles, CA 90012

Re: Underwood vs. Fleming

LASC Case No. 845685

Hearing Date, October 9, 1985

Dear Judge George:

On October 9, 1985, when I appeared in court for the

hearing on this Motion, your clerk had not as yet

located the file, and at my request, you took Fleming’s

Motion under submisstion. On that date, I advised you

that I was leaving for the Orient on a four week

vacation on October 12, 1985, and that in the event you

ruled favorably on my Motion, I would want an

opportunity to prepare a formal written Order to be

signed by you to fully reflect the findings of the court

and the court orders with respect thereto. I have

prepared for your review and execution, a Court Order

which I believe emobodies your findings and orders

based upon the Motion presented and the court file in

this matter.

I have been quite elaborate in drafting this proposed

Court Order for the following reasons. Mr. Fleming

ey ee

personally resided in the real property located at 2600

Zorada Drive, Los Angeles, California 90046, which

real estate is described in the proposed Court Order.

The court file and the Motion papers reflect that

Charles Underwood enforced the void Judgment by

obtaining a Writ of Execution against Mr. Fleming,

and levying execution against Mr. Fleming’s personal

residence. As a result of the Execution sale of Mr.

Fleming’s residence, at which sale Mr. Underwood was

the highest bidder, the Sheriff seized Mr. Fleming’s

residence, changed the locks, and physically evicted

Mr. Fleming, placing Mr. Underwood into possession

along with all of the personal property of Mr. Fleming

located in Mr. Fleming’s residence.

It is therefore very important that Mr. Fleming be

awarded restitution of his home and his personal

property located therein. For that reason, I have

prepared court orders for your review granting Mr.

Fleming restitution of his premises, along with the

personal property contained therein, quieting title in

Mr. Fleming’s favor as to the physical premises and the

personal property Icoated therein. We are merely

placing Mr. Fleming back into possession and title that

existed prior to the enforcement of the void Judgment

against his real estate and personal property.

I wish to point out to you that I neglected to include

as an exhibit to Mr. Fleming’s Motion, the Indenture

between Peter J. Pitchess, Sheriff of the County of Los

Angeles, and Underwood dated September 17, 1975,

which document was recorded in the Los Angeles

County Recorder’s Office on October 10, 1975. You

will note that paragraph 10 of the proposed Order

deals with this document. Enclosed herewith please

find a photocopy of said Indenture bearing the

—A3i1—

recording information, and I hereby request that you

take judicial notice of the same as being part of the

public records of the County of Los Angeles, and

include the provisions of paragraph 10 in your Order. I

would have included this document as an exhibit to the

Judgment, but I have been informed by the Judgment

Clerk that judgments are not to have exhibits appended

thereto.

In view of the great difficulty your clerk had in

locating the file in archives for you to rule on this

Motion, I have obtained the file for you out of archives

to enable you to review this proposed Order for your

execution. If this proposed Order meets with your

approval, I would appreciate your executing and

having your clerk enter this Order. I also request that

- you have your clerk issue a certified copy of this Order,

and mail the same back to me in the enclosed self-

addressed, stamped envelope. I have enclosed three

copies of this Order for this purpose. If you have any

questions with respect to this proposed Order, please

do not hesitate to contact the undersigned.

Respectfully submitted,

HERZFELD & RUBIN

/S/

Martin S. Friedlander

MSF:le

Enclosures

cc: Mr. Edward J. Fleming

—A32—

<cE CEIVED

OCT 13 1988

HERZFELD & RUBIA

OFFICE OF THE CLERK

COURT OF APPEAL

STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

ROBERT N. WILSON, CLERK

DIVISION: 5 DATE: 10/12/88

Hersfeld & Rubin

David Wheeler

1925 Century Park East

Suite 600

Los Angeles, CA. 90067

RE: Morgan, Thomas R.

vs.

Fleming, Edward J.

Levy, Shuki Y. & Deborah Dale

2 V 8022367

Los Angeles NO. C845685

THE COURT:

Petition for rehearing is denied.

APPENDIX B

SUPRIME CouRT

_ pi FILED

NOV 3 01998

“

Clerk

APPENDIX B ee ee

ORDER DENYING REVIEW

AFTER JUDGMENT BY THE COURT OF APPEAL

2nd District, Division 5, No. B022367

S007624

IN THE SUPREME COURT OF

THE STATE OF CALIFORNIA

IN BANK

MORGAN, Respondent,

UNDERWOOD, Appellant

FLEMING, Appellant.

Petition for review of appellant Fleming DENIED.

Chief Justice

NOV 3 01989

. Clerg

ORDER DENYING ALTERNATIVE WRIT

No. S007623

IN THE SUPREME COURT OF

THE STATE OF CALIFORNIA

IN BANK

FLEMING, Petitioner

COURT OF APPEAL, SECOND APPELLATE

DISTRICT, Respondent; UNDERWOOD ET AL., Real

Parties in Interest.

Petition for writ of mandate DENIED.

Chief Justice

PROOF OF SERVICE BY MAIL

State of California

SS.

County of Los Angeles

I, the undersigned, say: I am and was at all times herein’

mentioned, a citizen of the United States and a resident of the

County of Los Angeles, over the age of eighteen (18) years and

not a party to the within action or proceeding; that my business

address is 10835 Santa Monica Boulevard, Suite 200, Los

Angeles, California 90025; that on February 27, 1989, I served

the within WPetition for Writ of Certiorari to the Court of

Appeal of the State of California, Second Apellate District,

Division Five in said action or proceeding by depositing true

copies thereof, enclosed in a sealed envelope with postage

thereon fully prepaid, in the United States mail at Los Angeles,

California, addressed as follows:

Clerk. United States Carl Grumer

Supreme Court Jeffrey D. Spilman

One First Street, NE. Cooper, Epstein & Hurewitz

Washington, D.C. 20543 345 No. Maple Drive

(Original + 40 Copies) Suite 200

Beverly Hills, CA 90210

Charles Underwood (3 Copies)

19173 Berclair Lane

Tarzana, CA 91356

(3 Copies)

I declare under penalty of perjury that the foregoing is true

and correct. Executed on February 27, 1989, at Los Angeles,

California.

OFFICIAL SEAL Claude A A

SHERRI L BELLOTTI (Original si

NOTARY PUBLIC - CALIFORNIA j

LOS ANGELES COUNTY

My comm. expres OCT 2, 1992

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.