Petition — Chazin v. Witkovich

IN THE

Supreme Court of the

October Term, 1976

No. r me

ROBERT L. CHAZIN

Petitioner,

vs.

CARL WITKOVICH, W. F. OSTRANDER, TWIN PINES FEDERAL

SAVINGS AND LOAN ASSOCIATION AND T. D. SERVICE

COMPANY

Respondents.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

ROBERT L. CHAZIN

1760 Solano Avenue, Suite 200

Berkeley, California 94705

Petitioner in Pro Se.

MILTON NASON

GEORGE A. LYDON

1760 Solano Avenue, Suite 200

Berkeley, California 94707

Of Counsel

Printer: Copy-Copia, San Francisco, California Phone (415) 391-0574

Typesetter: Graphitype, Berkeley, California. Phone [415] 526-7151

Sn al eee fo Sree oa ee koe be 8 ee Oa e% l

A RE eo ARS Oh SRR Sine Ne hp RR eG IRC l

EER RT RT AT ERE APR TED US Geen ORD: 2

Constitutional Provisions and Statutes Involved ............ 2

ets a cela gins Oba 6% baw ares 2

| Ee errr, 8

|

| Petitioner’s Section 1983 Action in the

District Court Was Not Barred by Application

of the Doctrine of Res Judicata go ) ........... 8

State Law Controls Construction of State

Court Judgmentin FederalCourt — ........... 9

No Litigation of Constitutional Question

I le swale idole. fe ia st Baie oe 6 ai 9

A California Declaratory Judgment Con-

cludes only Issues Actually Litigated

Se ye ew Oe ee ee 10

Judgment of District Court Should Have

rc Yow ee GU Ree ae ane ens Bat dS 11

Certiorari Should Be Granted to Resolve

Questions of State action, Due Process and

Equal Protection Arising Under California’s

Non-judicial ForeclosureLaw ~~ ..... teen 12

I is 6. ou 6g 5G by be wine ke COE 13

ee cs be wis Oe ee ee 16

PFET Tee 17

a rl a de ie eee UN SRC eR e+ eas a 18

Appendices:

A. Memorandum Opinion of the Court of Appeals..... 19

B. Order of District Court Granting

Se ee Pee eee eee 21

C. Order of Court of Appeals Denying Rehearing ...... 23

D. Constitutional Provisions and Statutes

TABLE OF CONTENTS

I Sih ers a a eal aad a ee ee eae ee a aa 24

E. Uniform Decluratory Judgments Act ............. 29

F. Superior Court Complaint...................... 30

G. Restatements of Judgments 2d.................. 34

TABLE OF AUTHORITIES

Statutes

Federal

Constitution of the United States, 14th Amendment ....... 13

p 4g ee ry Bal a ep emer

rR ahs ey Ea: kal Memes 2,6,7

Sn ae ge oe an a peal 2.6

GE. We sb otek wi Ga ok be Oks be Pah RIT 2,6

California

ee ees, Ge Seren IL, . so & oc 6% o obo bwin a bee eu' 2

Ce ee, SN DO, . cc cn ccccccweencnetoun 2,4

Code of Civil Procedure, section 1060................. 6,26

Code of Civil Procedure, section 1062 .................. 27

Code of Civil Procedure, section 1161(a)(3).............. 14

Code of Civil Procedure, section 1174 (d)............. 14,15

Treatises

J. Hetland, Secured Real Estate Transactions

Gas WIL du bic © 67k yal eisctdiecnn Rete Sine n te a eee 15

ee 10

American Law Reports, Annotated (2d) ........... Shana 10

Restatement of Judgments (2d) ........ cc cw ccc cccccce 10

Law Review Articles

Bartels, Avoiding a Comity of Errors: A Model for

Adjudicating Civil Rights Suits that “Interfere”

with State Civil Proceedings, 29 Stanf. L.R.27.......... 8

_A. Vestal, State Court Judgment as Preclusive

in Section 1983 Litigation in Federal Court

BU es GE Es ST EE ook eee boheme e cca cccces 8

Cases

Adams v. Southern California First Nat'l. Bank

G92 FE. Bb. 20 COR Gc ATO Wks s ccc ic ccasenced 6,13 16

Atchison v. City of Inglewood

San ©. a0. GE ie kn bke wk bk Rds ketenes ce 10

Barrera v. Security Bldg. & Investment Co.

Sep F. 20. SIGS CSG Gl, ESTED cK cov ccccvadetoia 1315

Bisno v. Sax

171 Cal. App. 2d. 714, 346 P. 2d. 816(1959) .......... 17

Bryant v. Jefferson Savings & Loan Assn.

te FS . ae Oe 1315

Cooke v. Gaidry

Bap Bw. Fee Ga, TOP no ces panes 4ddiisdtavesas 10

Culbertson v. Leland

S20 F. 26. 436 (Ses ait. ISTS 0 os bein wehnctdei ae 13

Ditz’ Estate, In re

520 ME. W. Ae ee Gh, FRE 0 64.46 660 oe eteeedausns 10

England v. Louisiana Board of Medical Examiners

S75 GU. S. O33 CED isew st Oe Aa I US 7

Fleisher v. Continental Auxiliary Co.

215 Cal. App. 2d 136, 30 Cal. Rptr. 137 (1936)........ 17

Garfinkle v. Wells Fargo Bank

G56 ©. 2G. 1GFS COG GE TSE 0 ok 60'S b66 cvcevesends 6

Garner v. Tri-State Investment Co.

382 F. Supp. 377 (E.D. Mich., 1974) ............. 13,15

Giese v. City of Los Angeles

77 Cal. App. 2d. 1029, 175 P. 2d. 562 (1946) ......... 11

Gonzales v. Gem Properties, Inc.

37 Cal. App.. 2d. 1029, 112 Cal. Rptr. 904 (1974)...... 17

Greene v. Municipal Court

51 Cal. App. 3d. 446, 124 Cal.. Rptr. 139. ............. 15

Hitchcock v. Hassett

Peg 6 ie See CE ee 6 o.cit's 0 cop WBin op beeiaes 15

Huffman v. Pursue, Ltd.

ET a ae ee a 8

Jackson v. Metropolitan Edison Co.

ry ear er 14

Kenly v. Miracle Properties, Inc.

412 F. Supp..1072 (D. Ariz.,1976)..........\...... 13,15

Lawson v. Smith

ow ER | a ee 12

Lombard v. Board of Education

rr a. Ce tere an sheowetes 8,9

Lortz v. Connell

273 Cal. App. 2d. 286, 78 Cal. Rptr. 6 (1969) .......... 11

Lupertino v. Carbahal

239 Cal. App. 2d. 742, 111 Cal. Rptr. 112 (1974) ....4,17

McClatchey v. Rudd

239 Cal. App.. 2d. 605, 48 Cal. Rptr. 783 (1966) ....... 16

Mullane v. Central Hanover Bank

a cn. a ws god 60's 6 hn 6% 0 Teice 17

Neale v. Goldberg

Es 9.10

Nev.-Cal. Electric Secur. Co. v. Imperial Irrigation District

See es A a, CPOE) cole cece hc eccwseenss 9

North Shore Realty Corp. v. Gallaher

ey MED oi cc cccccesecsceses 10

Northrip v. F. N. M.A.

ee, Os Us. so wc b ve 60k eoewee 13,15

Parks v. “Mr. Ford”

- F. 2d. -, 45 U.S. L.W. 2500 (3rd cir., 1977) .......... 13

People of the State of New York ex re/ Halvey v. Halvey

RL I ol ne ea ee oe bg Sa aces d 9

Scoggin v. Schrunk

es ee: SP. os oc cok ces beeséenee ee 8

Sniadach v. Family Finance Co.

ee ate ol hake wh wo 0 oe 6 uh we 8,12

Strutt v. Ontario Savings & Loan Ass’n..,

11 Cal. App. 3d. 547, 90 Cal.. Rptr.69(1970) ......... 12

Strutt v. Ontario Savings & Loan Ass’n.,

28 Cal. App. 3d. 866, 105 Cal. Rptr. 395 (1976) ........ 16

Turner v. Blackburn

ee A, CT Ens, UI FED 0 cc ccnccecscecese 15

Turner v. Impala Motors

ee. N wbhebewween ee 16

Union & Planter’s Bank v. Memphis

re ee ok as cleat cen bb ehe eh 6% )

West v. American Tel. & Tel. Co.

ee, i a, cue eb bbesa 1]

Western & A. R. R. Co. v. Henderson

toe eS a pene echoes eee d 15

IN THE

Supreme Court of the United States

October Term. 1976

No. —

ROBERT L. CHAZIN

Petitioner

vs.

CARL WITKOVICH, W. F. OSTRANDER, TWIN PINES FEDERAL

SAVINGS AND LOAN ASSOCIATION AND T. D. SERVICE

COMPANY

Respondents.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

Petitioner. Robert L. Chazin, hereby petitions for a writ of

certiorari to review the judgment of the United States Court of

Appeals for the Ninth Circuit in this case.

Opinions Below

The opinion of the Court of Appeals (App. A, infra) is

unreported. The judgment of the District Court is set forth in

App. B, infra.

Jurisdiction

The judgment of the Court of Appeals was entered on

December 2, 1976. On February 1. 1976 the Court denied a

petition for rehearing and rejected a suggestion for rehearing en

banc. This order is set forth in App. C, infra. On March 30, 1977

>

the time for filing a petition for certiorari was extended by

Mr. Justice Rehnquist to and including June 13, 1977. Jurisdic-

tion of the Court is invoked under 28 U.S.C. 1254 (1).

Questions Presented

1. Whether a federal court may accord a state court judgment

a greater preclusive effect than it would have in the courts of

the rendering state ; P

2. Whether, under California law, a California declaratory

judgment concludes matters neither litigated nor declared;

3. Whether California’s non-judicial foreclosure law involves

sufficient state-action to require the imposition of the due

process and equal protection strictures of the Fourteenth

Amendment.;

4. Whether, under the facts of the case. the procedures used

to effect the foreclosure and sale of petitioner’s home satisfied

the due process and equal protection requirements of the

Fourteenth Amendment.

Constitutional Provisions and Statutes Involved

The due process and equal protection clauses of the Four-

teenth Amendment to the Constitution of the United States:

the Civil Rights Act of 1871, Section 1, 17 Stat, 13,42 U.S.C.

1983; Act of March 3, 1911 (as amended), 37 Stat. 1901, 28

U.S.C. 1331 (federal question jurisdiction of the district courts);

Act of June 25, 1948, 62 Stat, 947, 28 U.S.C. 1738 (full faith

and credit to state court judgments); sections 1060, 1062 of the

California Code of Civil Procedure, as they existed in 1973 (the

California Declaratory Judgment Act); and portions of the

California non-judicial foreclosure law, sections 2924, 2924b of

the California Civil Code, as they existed in 1973.

These statutes are set forth in Appendix D.

Statement

The facts. which are essentially not in dispute, may be sum-

marized as foliows:

ee

_ Petitioner purchased a home at 2916 Elmwood Court, Berk-

eley, California on December 1, 1970. The purchase price was

financed by respondent Twin Pines Federal Savings & Loan

Association (“Twin Pines”). On February 24, 1971, petitioner

executed a deed of trust in favor of Twin Pines, a copy of which

is contained in Appendix E.' This deed of trust, which is on the

standard California form, contained a statutory “request for

notice,” pursuant to section 2924b of the California Civil Code,

to the effect that copies of any notices subject to the provisions

of that section—i.e. notices relating to default, foreclosure or

sale—-be sent to 2322 Russell Street. Berkeley, California. This

was petitioner’s address at the time the deed of trust was exe-

cuted. The deed contains no warning of the effect of designation

of a given address in the request for notice, nor any indication

as to what steps a homeowner must use to effect a change of

address.

Shortly thereafter. petitioner moved to the Elmwood Court

property. The Elmwood Court address, along with some supple-

mentary addresses supplied by petitioner to Twin Pines, and

connected with his then employment in Southern California.

was used by petitioner and Twin Pines for all correspondence.

The Elmwood Court address was petitioner’s legal residence for

all purposes; petitioner voted in the precinct containing that

address and it appeared on his driver’s license. Petitioner filed a

change of address, directing that mail be forwarded -from the

Russell Street address to the Elmwood Court address at the

time he moved to the latter and, except as set forth in this peti-

tion, received no mail at the Russell Street address after he took

possession of the Elmwood Court property in the spring of 1971.

On July 18, 1973, more than two years after petitioner moved

into the Elmwood Court residence, respondent T. D. Service

Company (“T.D.”), acting as trustee for respondent Twin Pines.

recorded a notice of default on the Elmwood Court property

'The deed was contained in the record on appeal, Doc. 19, Ex. “A”.

? A change of address is effected by executing a new “request for

notice,” acknowledging it before a notary public and then recording it.

California Civil Code, section 2924b.

=

and mailed it to the Russel] Street address. By 1973 the change

of address order filed with the post office had, of course, expired’

and petitioner did not learn of the existence or filing of the no-

tice until Juiy 17, 1973, and then only through fortuitous cir-

cumstances unconnected with any of the respondents.* ,

Petitioner immediately undertook efforts to arrange to have

funds to pay the amounts demanded by respondents, which

included substantial trustee’s and other fees, sent to him. On

September 21, 1973, more than 90 days after the date of filing

of the notice of default, but less than 90 days after the date

petitioner learned’ of the impending forec'osure, petitioner

made full tender of all amounts previously demanded by re-

spondents, which, petitioner asserted, they were not entitled to

because of the manner in which the notice was given. Respond-

ents contended that the reinstatement of the loan at that time

was a matter of creditor’s grace and declined to reinstate the

loan unless further sums were paid. -

On September 12, 1973, petitioner commenced an action in

the superior court, seeking declaratory relief only, which prayed

for a declaration that respondents Twin Pines and T. D. were

obliged to send a copy of any notice of default to the Elmwood

Court address, i.e. the address where petitioner customarily

received mail and which was the property which was security

for respondent’s loan. Petitioner contended that a solitary

notice sent to an address at which appellant had not lived or

received mail was a nullity, and that respondents were estopped

torely on such notice for compliance with the statutory require-

ments of section 2924b of the California Civil Code.’ No

*The Court may wish to take judicial notice of regulations of the Post

Office, as in force on June 18, 1973, providing that change of address

orders expire one year after the filing thereof.

*Petitioner was out of town at the time and telephonically requested his

bank to prepare a cashier’s check and forward it to Twin Pines. When,

thereafter, Twin Pines mailed the check back to the bank, the latter notified

petitioner of the fact.

‘California courts have had occasion to consider this sort of situation

before. See, e.g., Lupertino v. Carbahal (1973) 35 C.A. 2d 742, 111 Cal.

Rptr. 112.

5

damages, or other relief, other than an injunction pendente lite,

were prayed for. In particular. the complaint did not make any

constitutional attack on the relevant California statutes, contrary

to the assertion contained in the opinion of the Court of Appeals.

set forth herein in Appendix A. The complaint is set forth here-

in in Appendix F, and is contained in the record before the

Court of Appeals at 73.

Petitioner sought and obtained a preliminary injunction, en-

joining respondents from proceeding with the foreclosure sale, °

pending a trial of the action in chief. Thereafter, the action

proceeded to a trial to the Court. Respondents contended, as

they had at the hearing on the preliminary injunction that they

had complied with all applicable California statutes and that

that was all they were required to do. Petitioners contended

that respondents were estopped to rely on a notice mailed to an

address they know to be obsolete.

At the conclusion of the trial, the court rendered judgment

in favor of respondents herein and subsequently, judgment was

entered in favor of respondents and the preliminary injunction

dissolved. Petitioner attempted to stay the foreclosure sale and

filed an undertaking on appeal in an amount fixed by the Court,

$10,000.00. Respondents took the position that the judgment

was self-executing and noticed a foreclosure sale for November

8, 1974. )

One November 7. 1974. and acting on instructions from

counsel George A. Lydon.’ who had represented petitioner in

the superior court litigation, and who was in Los Angeles on

that date, petitioner prepared and filed a pro se complaint and

filed it in the district court. The district court issued an order to

show cause (re preliminary injunction) but declined to issue a

© In California parlance these sales are referred to as “trustee’s sales.”

See discussion of the California non-judicial foreclosure law, infre p. 12.

7 Petitioner is at present a first-year law student and had acted as Lydon’s

law clerk for several years prior. Lydon contracted cancer of the vocal

chords and is at present unable to speak. For that reason he is of counsel

hereon rather than attorney of record. Should certiorari be granted, peti-

tioner will provide counsel for oral argument.

~ =

temporary restraining order. Accordingly, the foreclosure sale

took place on November 8, 1974.

The federal complaint alleged jurisdiction under 28 U.S.C.

1331 and 42 U.S.C. 1983. It attacked the foreclosure statute as

unconstitutional as applied to petitioner. Petitioner moved the

Court for a preliminary injunction setting the sale aside; this

was denied.® Thereafter, the Court granted summary judgment

in favor of respondents, holding that the prior state court judg-

ment was res judicata. The Court also remarked that, in its view,

California’s non-judicial foreclosure law did not involve suffi-

cient state action to subject it to constitutional strictures of due

process. For the latter proposition, the District Court relied

inter alia on Adams v. Southern California First National Bank

492 F. 2d. 324, (9 cir., 1975), which had just been decided.

Petitioner filed a timely notice of appeal. Petitioner’s opening

brief was confined to the question of res judicata. Petitioner

contended that the Court of Appeals was required.by the statu-

tory analog of the full faith and credit clause, 28 ‘U.S.C. 1738,

to apply state law to determine the preclusive effect of the prior

California judgment; that under that law, the prior California

judgment, a declaratory judgment obtained pursuant to sections

1060 et. seq., concluded only matters actually litigated and did

not operate, via the doctrine of res judicata, to bar further

litigation in state of federal courts of constitutional (or, for that

matter, other) questions not actually litigated in the prior state

court action. Further, petitioner argued that the foreclosure

sale and recording of the notice of default constituted two

causes of action under California law, not one, so that the prior

state court judgment functioned only by way of collateral

estoppel. Petitioner did not raise the question of state action in

his opening brief but suggested that the judgment be reversed

on the res judicata question alone, possibly with directions to

the district court to abstain while the question of the res judicata

effect of a California declaratory judgment was litigated in state

court in accordance with the principies announced by the Ninth

Circuit in Garfinkle v. Wells Fargo Bank (9 cir., 1973) 483 F. 2d.

8 P»titioner retained counsel for the action in the district court.

+.

1074 and by this Court in England v. Louisiana Board of Medt-

cal Examiners, 375 U.S. 411 (1964).

Respondents contended that a California declaratory judg-

ment had the same preclusive effect as any other California

judgment. They also contended that, evenif not barred by reason

of the prior state court judgment, appellant’s section 1983 action

would have to be dismissed on state action grounds.” Petition-

er’s reply brief accordingly responded at length to this assertion’°®

A panel of the Court of Appeals affirmed the judgment of

the District Court on December 2. 1976. A timely petition for

rehearing and a suggestion of appropriateness of rehearing en

banc was denied on February |, 1977. Pending the disposition

of this petition, the mandate of the Court of Appeals has been

stayed pursuant to motion."

* Respondents did not address themselves to the fact that the federal

complaint also invoked jurisdiction under 28 U.S.C. 1331.

'° Petitioner's reply brief was out of time and oversize. A motion for leave

to file it was denied; accordingly, that brief is “lodged” rather than “filed”.

'' The effect of the order staying the issuance of the mandate of the

Court of Appeals is to continue the vitality of a notice of lis pendens

recorded at the time the action in the district court was filed. The purchas-

er at the trustee’s sale, who is the party affected thereby, has indicated

that it did not object to the sale being set aside if it received a refund of

its purchase price and interest. (R., 60)

TT

=~

REASONS FOR GRANTING THE WRIT

There are two reasons for granting the writ in this case:

(1) A decision of a Court of Appeals which decides a control-

ling question of state law in a manner in conflict with applicable

State statutory and decisional law so as to deprive a litigant of

an important federally conferred right should -be reversed;

(2) This Court has never reviewed, from the standpoint of

state action considerations and due process, any of the various

state non-judicial foreclosure laws, which generate a great deal

of litigation; and the impact of the Sniadach progeny on these

procedures should be elucidated.

I

Certiorari Should Be Granted to Reverse A Judgment of a

Court of Appeals Which Decides a Controlling Question

of State Law in a Manner Conflicting with Applicable

State Statutory and Decisional Law so as to Deprive a

Litigant of a Federally Conferred Right.

The case at bench presents the familiar question of the res

judicata effect of a prior state court judgment in ‘a subsequent

section 1983 federal action. The question has been before this

Court many times'?; it has been the subject of conflicting

decisions of the Court of Appeals'® ; of law review articles '*:

and it is presently the subject of a bill in the current Congress. '5

In the case at bar, the question appears in an unusal context.

Petitoner contends, as he did before the Court of Appeals, that

federal courts must apply state law to determine the preclusive

effects of a prior state court judgment; and that under applicable

'? See e.g. Huffman v. Pursue, Ltd. 420 U.S. 592, 606 n. 18 (1975), the

Court expressly declining to decide the question.

"> See e.g. Lombard v. Board of Education 502 F. 2d. 631 (2d. cir..

(1974), holding that constitutional issues not litigated in a prior state court

action may be litigated in a subsequent section 1983 proceeding; and

Scoggin v. Schrunk, 522 F. 2d. 436 (9th cir., 1975) holding precisely the

contrary.

'* See e.g., Bartels, Avoiding a Comity of Errors: A Model for Adjudi-

cating Federal Civil Rights Suits that “interfere’’ with State Civil Proceed-

ings, 29 Stanf. L. R. 27; A. Vestal, State Court Judgment as Preclusive in

Section 1983 Litigation in Federal Court, 27 Okl. Law. R. 185 (1974).

'S Senate Bill 35, 95th Congress.

ma

state law, the prior California declaratory judgment was disposi-

tive only of issues actually litigated.

Petitioner urges that in affirming the dismissal of his section

1983 action, the Court of Appeals ignored a long line of deci-

sions of this Court which require a federal court to apply state

law to determine the preclusive effect of a state court judgment,

and also overruled, pro tanto prior decisions of the Court of

Appeals itself to the same effect. Petitioner urges that where, as

here, state law limits the preclusive effect of a particular judg-

ment obtained under the law of the state to issues actually

litigated therein, a federal court may not thereafter confer a

greater preclusive effect on such judgment.

State Law Controls the Construction of a

State Court Judgment in a Federal Court

lt is well settled that state law governs the preclusive effect

to be given a state court judgment in federal court; Union &

Planter’s Bank v. Memphis, 189 U.S. 71 (1903) and it is equally

well settled that a federal court may not accord a prior state

court judgment a greater preclusive effect than it had under the

law of the rendering state."® People of the State of New York

ex rel Halvey v. Halvey 330 U.S. 610 (1947). To similar effect

are numerous decisions of the Court of Appeals for the Ninth

Circuit itself. See Neale v. Goldberg, 525 F. 3d. 332 (9th cir.,

1975); Nev.-Cal. Electric Secur. Co. v. Imperial Irrigation

District. 85 F. 2d. 886 (9th cir., 1936), cert. den. 300 U.S. 662.

The decision of the Court of Appeals in the case at bar is thus

contrary to *’* great weight of authority.

No Litigation of Constitutional Questions

in the Superior Court

Contrary to the assertion made in the opinion of the Court of

Appeals (App. A) there was no litigation of constitutional ques-

tions in the Superior Court, as is clear by inspection of the

complaint in that action (App. F). To the extent that the

judgment of the Court of Appeals depends on this assertion, it

should be reversed on grounds of plain error.

'© There are, how: ver, decisions holding that a federal court may accord

such a judgment a /esser preclusive effect. Lombard, supra, p. 8, fn. 13.

CO —_E—E—E—E—E_————oo—eE————EE7~*~

-10-

A California Declaratory Judgment Concludes Only

Issues Actually Litigated and Declared

Petitioner urges that a California declaratory judgment,

obtained pursuant to section 1060 et. seg. of the California

Code of Civil Procedure, concludes only issues necessarily liti-

gated and actually declared, and does mot conclude issues which

were not so litigated. Such declaratory judgments are thus

exceptions to the usual rule of the doctrine of res judicata that

a judgment concludes not only matters actually adjudicated, but

also, with respect to the same cause of action, matters which

could have been litigated but were not.

Though there is ample authority for this proposition from

other states,'?in both Restatements of Judgments '*; in the

treatise of the leading commentatdér on California law '*, in the

declaratory judgment act itself 7° in various annotations and

treatises 7', the California appellate courts have never considered

the precise question. The Court of Appeals was thus confronted

by a question of state law which would have been of first

impression had it been decided by the California courts.*?

17 See Cooke v. Gaidry 218 S.W. 960 (Ky., 1949), North Shore Realty

Corp. v. Gallaher 99 So. 2d. 255 (Fla. App. 1957); Jn re Ditz’ Estate, 124

N.W. 2d. 814 (la., 1964) and most recently, Atchison v. City of Inglewood

506 P. 2d. 140(Colo. 1973), all construing various versions of the Uniform

Declaratory Judgment Act. This section, set out in App. E, is considerably

more restrictive than the corresponding section of the California Declara-

tory Judgment Act, section 1062 of the California Code of Civil Procedure

(App. D).

'8 Restatement of Judgments Ist, sec. 77 and comment b thereof; Re-

statement of Judgments 2d, sec. 76, Tent. Draft No. 1 (1973). See App. G.

19 4 Witkin, California Procedure, Judgments §172 (“[a declaratory

judgment] should be binding as to matters declared, though it is not a

merger or bar.”’) (emphasis added).

20 Section 1062, California Code of Civil Procedure. (App. D).

21 10A.L. R. 2d. 782, particularly par. 3;22 Am. Jur. 2d. sec. 102.

22 Implicit recognition of the proposition appears as dicta in Neale v.

Goldberg, supra, fn. 17, but the court was able to dispose of that case on

other grounds not applicable here (the cause of action in the prior state

court suit was ‘fully matured”.)

Nevertheless, all decisions of the California intermediate appel-

late courts which have considered the question of the res

judicata effect of a California judgment are consistent with

petitioner’s position and inconsistent with respondents’ view,

which (as stated in their brief before the Court of Appeals)

is that a California declaratory judgment is indistinguishable for

res judicata purposes from any other California judgment2**Lortz

v. Connell, 273 Cal. App. 2d. 286, 78 Cal. Rptr. 6 (1969)

(declaratory judgment does not preclude prevailing party from

seeking damages in subsequent action); Giese v. City of Los

Angeles, 77 Cal. App. 2d 1029, 175 P. 2d. 562 (1946). (actions

for declaratory relief exception to general rule that party must

litigate all claims arising from a single transaction in one action

or they will be lost by merger or bar.

The Judgment of the District Court Should Have Been

Reversed or Reversed with Directions to Abstain

The Court of Appeals, engrafting onto California’s declaratory

judgment act a new requirement, not enacted by the legislature,

that a litigant availing himself of its provisions must raise all

issues in an action therefor, affirmed the judgment of the Dis-

trict Court which accepted responents’ defense of res judicata.

Petitioner urges that this decision, stemming from an erroneous

determination of a controlling question of California law should

have been reversed. Not only does the decision of the Court of

Appeals preclude relief for petitioner in the federal courts, it

also precludes relief (via the doctrine of the law of the case) in

State courts as well.

While it is well settled that under certain circumstances a

federal court may of necessity decide questions of state law,

a federal court must decide such questions in the manner in

which such questions would be decided by the highest court of

the state; where state law controls, the federal court must apply

it “...rather than...prescribe a different rule, however

superior it may appear to be... .”” West v. American Tel. & Tel.

Co. 311 U.S. 223, 236-237. (1940). Considerations of judicial

22.5 Contrary to the opintan of the Court of Appeals, Dills v. Delira does

not support respondents’ position. Dills does not deal with the question of

res judicata at all. —— yen

1?

-

efficiency and economy, the proliferation of litigation—especially

section 1983 litigation—and similar policy considerations are

important and may furnish, at least to some extent, a rationale

for a strict application of the doctrine of res judicata in those

situations where an unsuccessful state court litigant seeks relief

in a subsequent federal action2* Such considerations, however.

cannot justify an intrusion by the federal judiciary into an area

which properly belongs to the California legislature. The res

judicata effect of a California judgment in the California courts

is solely within the province of the California legislature and

courts; and petitioner urges that federal courts are constrained

to adhere to that law.

Il

Certiorari Should Be Granted to Determine Whether or

Not California’s Non-Judicial Foreclosure Law Involves

Sufficient State Action to Subject It to Constitutional

Strictures of Due Process and Equal Protection.

Commencing in 1969 with Sniadach v. Family Finance Co.,

395 U.S. 337, this Court has reviewed a number of creditor’s

remedies and determined whether or not they pass constitution-

al muster. To date, however, the Court has never decided a case

involving a “non-judicial foreclosure statute”—i.e. foreclosure

under a deed of trust containing a power of sale.

The economic and social importance of this partic . ~ credi-

tor’s remedy can scarcely be overstated. The qu on ¢* shether

California’s non-judicial foreclosure law involves a swiiicient

quantum of state action to trigger the imposition of constitu-

tional safeguards of due process and equal protection and, if it

does, whether the law as enacted and applied is constitutionally

adequate, has never been considered by either the California

Supreme Court or by the Ninth Circuit.?* Elsewhere, comparable

3 Indeed, senate bill 35, supra p. 8, fn. 15, drastically restricts the use

of res judicata as a defense to section 1983 actions.

24 The statute has been considered by a federal district court and a Caii-

fornia intermediate appellate court; state action has been found lacking.

See Lawson v. Smith 402 F. Supp. 851 (N.D. Cal., 1975); Strutt v. Ontario

Savings & Loan, 11 Cal. App. 3d. 547, 90 Cal. Rptr. 69 (1970).

= =

~but distinguishable—non-udicial foreclosure statutes have

been considered by federal courts in the District of Columbia,

Texas, Michigan, North Carloina and most recently, Arizona.

Two district court decisions have found state action present in

the foreclosure statutes of Michigan and North Carolina?* while

it has been found to be absent in the foreclosure statutes of

Michigan, District of Columbia Texas, and Arizona.”°

Petitioner urges that the question of whether or not Cali-

fornia’s statutory scheme involves sufficient state action to

require the imposition of constitutional safeguards is of great

public importance and is deserving of consideration by this

Court.

Indicia of State Action

While this petition is not the appropriate place for a detailed

analysis of this question, some of the factors which lead to a

conclusion that the California statute does indeed involve the

requisite quantum of state action to subject it to subject it to

constitutional provisions of the Fourteenth Amendment may be

summarized as follows:

1. Expansion of the creditor’s remedy beyond the limits

existing under the common law. The present statutory scheme

expands the remedy of non-judicial foreclosure by giving the

creditor several rights he did not possess at common law. Some,

but not all, of these are set forth in paragraphs 3, 4, and 6, infra.

Such expansion is “not the final answer to the touchstone of

state action,” Adams v. Southern California First National Bank,

492 F. 2d. 324 (9th cir.. 1973) but it is an important factor to

be considered. See, e.g., Culbertson v. Leland, 528 F. 426 (9th

cir., 1975); Parks v. “Mr. Ford’, - F. 2d.- ,45 U.S. L. W. 2500

(3rd cir., 1977).

28 Turner v. Blackburn, 389 F. Supp. 1250 (W.D.N.C. 1975); Garner v.

Tri-State Investment Co. 382 F. Supp. 377 (E.D. Mich. 1974).

2© Northrip v. F.N.M.A. 527 F. 2d. 23 (6th cir., 1975); Bryant v. Jeffer-

son savings & Loan 509 F. 2d. 511 (D.C. Cir., 1974); Barrera v. Security

Building & Investment Coop. (Sth cir., 1975), Kenly v. Miracle Properties,

Inc. 412 F. Supp. 1072 (D. Ariz., 1976).

_14—

2. Pervasiveness of state regulation. The California statute

completely defines and delimits the procedures to be used in a

non-judicial foreclosure and to a far greater extent than any of

the statutes in jurisdictions whose statutes were found not to

involve state action. This alone, without more has been held

insufficient to support a finding of state action, cf. Jackson v.

Metropolitan Edison Co. 419 U.S. 345, but it too, is a factor to

be considered. Of particular importance in the instant case are

the notice provisions of the statute, contained in section 2924b

of the California Code of Civil Procedure. Petitioner urges that

the requirement that a change of address notice be executed,

acknowledged and recorded before it is effective, and denying

any effect to a simple letter, is state action per se.

3. Deprivation of property rights without notice or hearing.

The California non-judicial foreclosure procedure is initiated

when the “trustee” executes and records a “Notice of Default

and Election To Sell.” The mere recording of such a notice

deprives the homeowner of marketable title and operates to

prevent him from conveying or encumbering the property. The

notice itself contains the creditor’s statement of the amount

due, even if such amounts are in dispute; and typically, the filing

of such a notice will ultimately result in the homeowner being

required to pay additional fees. The creditor posts no bond,

files no affidavit or declaration whatever to obtain this remedy.

Petitioner urges that this procedure involves the delegation by

the state to private individuals, here the power to adjudicate

disputes (here, disputes over the amount due the creditor) and

of the courts and the sheriff to attach property, inasmuch as the

recording of the notice of default has virtually the same effect

on title to the property as a formal writ of attachment would

have. Such delegation converts the acts of a private individual—

the trustee—into acts of the state itself.

4. Seizure of property unrelated to debt. The purchaser at

a trustee’s sale is entitled to evict the former owners (or those

holding under them) by statutory unlawful detainer, section

1161 (a) (3) of the California Code of Civil Procedure. When

~ 2:

—

the eviction takes place, the purchaser (or his successor in

interest) acquires a lien for “storage charges” on all personalty

left on the premises. California Code of Civil Procedure, section

1174(d). This lien is wholly statutory and did not exist at

common law in California. Hitchcock v. Hassett 71 Cal. 331, 12

P. 228 (1886). California courts have held that, absent the

Statute, the trustee’s sale purchaser would be left to his com-

mon law remedy of ejectment. Greene v. Municipal Court, 51

Cal. App. 3d. 446, 124 Cal. Rptr. 139. That remedy, of course,

requires the trustee’s sale purchaser to prove his title and does

not give him a lien on the trustor’s personalty following an

eviction.

5. Perhaps the most compelling indication that the requisite

State action is present in the California statute are the provisions

of section 2924 of the California Civil Code, providing that a

recital in the trustee’s deed that the relevant requirements of

law respecting recording and mailing of the various notices

required are prima facie evidence thereof and conclusive evidence

thereof in favor of bona fide purchasers and encumbrancers for

value and without notice. This Court has held that such con-

clusive evidentiary presumptions violate the due process clause

of the Fourteenth Amendment. Western & A.R.R. Co. v.

Henderson, 279 U.S. 639. (1929). Like Professor Hetland,?’

petitioner believes that only the state can “enact and enforce a

policy precluding litigation over fact questions by ordering

them to be true when they are false.”

It should be noted that although the foreclosure statutes in

some of the other states considered in Barrera, Bryant, Northrip,

Turner and Kenly, supra, p. 13, fn. 25, 26, contain provisions

making the trustee’s deed presumptive evidence of compliance

with the notice provisions, only California and Arizona have

such provisions.

27J. Hetland, Secured Real Estate Transactions, California Continuing

Education of the Bar, 1974. Chapter 8 contains a lengthy discussion of

the California non-judicial foreclosure statute and a critique thereof.

= *

6. Finally, the state imposes criminal sanctions ona trustee’s

sale bidder who fails to deliver the amount of his bid; section

2924b of the California Civil Code makes such failure a mis-

demeanor.

It is often argued that creditor’s remedies which arise from a

contract between two parties are private and that state legisla-

tion regulating such remedies does not convert them from private

action to state action. A notable example of this argument can

be found in the automobile repossession cases, e.g.Adams, supra;

Turner v. Impala Motors, 503 F. 2d. 607 (6th cir., 1974). This

argument is inapplicable to the case at bar, as is clear when one

considers what the situation would be if no statute existed: the

lender would then stand in the position of any other creditor

and be obliged to establish his debt judicially.

Petitioner urges that the California statute clearly reveals a

“ .. sufficiently close nexus between the state ‘and the chal-

lenged action of the regulated entity so that the action of the

latter may be fairly treated as that of the state itself.” Jackson,

supra.

California’s Non-judicial Foreclosure Law

Violates the Due Process and Equal Protection Clauses

of the Fourteenth Amendment

The most serious difficulty with the notice provisions of the

California statute is that the trustee is not required to do any-

thing to assure that the trustor will receive actual notice; com-

pliance with the statute is sufficient, and the statute only re-

quires that notice be sent to the address given in the deed of

trust or subsequent request for notice. This is true even if that

address is known by the trustee to be obsolete, and the trustee

has actual notice of the true address; or if the notice is returned

as undeliverable. McClatchey v. Rudd, 239 C.A. 2d. 605 (1966);

Strutt v. Ontario Saving & Loan 28 C.A. 3d. 866; 105 Cal.

Rptr. 395; Strutt, supra, p. 12, fn. 24. There is nothing in the

standard California trust deed—or indeed, in the deed in the case

at bar to warn the trustor of the importance of, or procedure for

——

a Ons

changing, the address to which foreclosure notices are to be

sent.?* Parenthetically, it should be noted-that the “trustee”

who conducts the foreclosure sale, usually a tithe company or

organization engaged solely in that business, is not a trustee in

the usual sense of the word. Under California law, his status is

merely that of an agent for the lender, obliged to carry out his

directions. See. e.g. Fleisher v. Continental Auxiliary Co. 215

Cal. App. 2d. 136, 30 Cal. Rptr. 137 (1963); section 2934a of

the California Civil Code.

It is thus quite clear that the notice procedure authorized by

California law falls far short of the standard set forth by this

Court in Mullane v. Central Hanover Bank, 337 U.S. 306 (1950).

Absent statutory authorization to send only one notice to a par-

ticular address, whether current or not, trustees might well exert

greater efforts to insure that trustors received actual notice.

There have been egregious cases in which trustees sent the re-

quired notices to addresses they knew to be obsolete so that the

trustor did not learn of the impending foreclosure sale until the

90 day redemption period had expired. See e.g.. Lupertino v.

Carbabal.35 Cal. App. 2d. 742, 111 Cal. Rptr. 112. None of

these cases have considered the constitutional questions involved,

however.

Quite aside from the notice question presented by this case.

there are serious due process deficiencies in California’s non-

judicial foreclosure law. See, e.g., Hetland, supra, section 8.5.

The statute has enormous potential for injustice and abuse and

the reports are replete with many examples thereof. See, e.g.,

Bisno v. Sax, 175 Cal. App. 2d. 714, 346 P. 2d. 816 (1959):

Gonzales v. Gem Properties, Inc. 37 Cal. App. 2d. 1029; 112

Cal. Rptr. 904 (1974); Lupertino, supra. If the Court finds the

requisite state action to be present in the California statute, the

way will be open for some of these abuses to be corrected.

Petitioner’s Notice: Equal Protection

As noted by the Court of Appeals in its opinion (App. A)

petitioner had actual notice (though fortuitiously, and by

28 Pursuant to Supreme Court Rule 21(1) the clerk of the Court of

Appeals is requested to transmit a copy of the deed to the Court prior to

docketing the instant petition.

~ tiie

means unrelated to respondents) of the impending foreclosure

partway through the 90 day redemption period. The Court of

Appeals held that “. . . this finding cannot be relitigated and is

in itself ground for dismissing the complaint.”

Petitioner respectfully disagrees. The fact that petitioner had

actual notice partway through the 90 day redemption period was

never in dispute. Petitioner submits, however, that the fact does

not require dismissal of the complaint, for if the state has en-

acted a statute giving trustors 90 days to cure any alleged default,

a statute which operates in a fashion to give some persons against

whom it is applied less than 90 days notice of an impending

foreclosure—or indeed, as in Lupertino, notice after the period

had expired altogether—is a clear denial of equal protection.

Because of acceleration provisions in deeds of trust, trustees’

fees and other related costs, a trustor who seeks to cure a default

will typically have to pay a substantial amount of money.

Presumably the legislature determined that 90 days was a suffi-

cient period for a trustor to obtain the requisite funds. In the

case at bar, petitioner made tender of all sums previously

demanded by respondents more than 90 days from the filing of

the notice of default but less than 90 days from petitioner’s

receipt of actual notice. If the statute is applied in such a way as

to give some trustors less than 90 days’ notice, petitioner urges

that it is unconstitutional as applied and denies those persons

the equal protection of the laws, in contravention of the Four-

teenth Amendment.

Conclusion

For the reasons hereinabove set forth, we pray that the writ

be granted. .

Respectfully submitted,

ROBERT L. CHAZIN

1760 Solano Avenue, Suite 200

Berkeley, California 94705

Petitioner in Pro Se.

MILTON NASON

GEORGE A. LYDON

1760 Solano Avenue, Suite 200

Berkeley, California 94707

Of Counsel.

a eee -

APPENDIX A*

United States Court of Appeals

for the Ninth Circuit

No. 75—1753, December 2, 1976

ROBERT L. CHAZIN

v.

CARL WITKOVICH. W. F. OSTRANDER. TWIN PINES FEDERAL

SAVINGS AND LOAN ASSOCIATION; T. D. SERVICE COMPANY.

and DOES I-IV

Appeal from the United States District Court

for the Northern District of California

Sneed and Kennedy. Circuit Judges.

Richey. District Judge.

Plaintiff brought this action in the United States District

Court for the Northern District of California under 42 U.S.C.

section 1983. The district court ruled that the action was barred

by the doctrine of res judicata. We affirm.

Before filing the complaint in the instant suit. plaintiff

brought an action for declaratory relief in state court to prevent

foreclosure on his property. In that action, he alleged-that the

notice provisions of California Civil Code section 2924b were

inadequate. After making specific findings of fact. the state trial

court rendered judgment against Chazin. The state appellate

courts affirmed. and the judgment is now final.

Plaintiff s federal action is nearly identical to the state action:

the parties invoived, the facts alleged, and the law challenged

are all similiar. In the federal suit he claims that because of

deficiencies in the statutory notice provisions, the state fore-

closure proceedings violated his constitutional rights. Claims that

could have been raised in an earlier state proceeding are barred

by the doctrine of res judicata. Scoggin v. Schrunk, 522 F.2d

* Summary affirmance reported at 547 F. 2d. 1174.

(19)

= =

436, 437, (9th Cir. 1975), cert. denied, 423 U.S. 1066 (1976).

This rule applies to actions brought under 42 U.S.C. section

1983. Id. at 437. Moreover, res judicata principles apply even

though plaintiff sought declaratory relief in his state action. See

Dills v. Delira Corp., 145 Cal. App. 2d 124, 302 P.2d 397, 401

(1956); cf. Lortz v. Connell, 273 Cal. App. 2d 286, 301, 78 Cal.

Rptr 6 (1969).

Finally, we note that the state trial court specifically found

that as early as July 17, 1973, plaintiff had actual notice that

his loan was in default and that forclosure proceedings under

the deed of trust had been commenced. Although he had the

opportunity to tender a sum to reinstate the loan, he failed to

do so within the statutory period. This factual finding cannot

be relitigated and is in itself ground for dismissing the com-

plaint.

Affirmed.

APPENDIX B

United States District Court for the

Northern District of California

No. C—74—2364 RHS, January 27, 1975

ROBERT L. CHAZIN

v.

CARL WITKOVICH, W. F. OSTRANDER, TWIN PINES FEDERAL

SAVINGS AND LOAN ASSOCIATION, T. D. SERVICE COMPANY,

and DOES | through IV.

Plaintiff's motion for leave to file an amended complaint is

hereby granted. Plaintiff's motion for preliminary injunction

and defendants’ motion for summary judgment and the briefs

and other documents related thereto will be deemed applicable

to the amended complaint.

The amended complaint, brought under 42 U.S.C. §1983.,

seeks: (1) a declaration that Cal. Civ. Code §2924b violates

the Fourteenth Amendment’s due process clause by authorizing

the forclosure sale of realty under a deed of trust without actual

notice to the trustor, though actual notice could be given; (2) a

declaration that as a result of the due process violation, the

foreclosure sale of plaintiff's realty is void, and (3) associated

relief. including special and general damages. However, since

plaintiff could have raised his due process contentions in a prior

state-court action dealing with the then-threatened foreclosure

of his realty, and that action has proceeded to judgment, res

judicata precludes him from raising these contentions here [{ Fran-

cisco Enterprises, Inc. v. Kirby, 482 F.2d 481, 485, 485n (9th

Cir. 1973)].

(21)

=

At any rate, the requisite state action* was lacking in the

transactions at issue, which had no significant state involvement,

but involved only private parties and a basically private remedy,

albeit one put in a statute [see Adams v. Southern California

First National Bank, 492 F.2d 324 (9th Cir. 1973), appeal

pending (finding no state action in self-help repossession pro-

cedures authorized by Cal. Comm. Code § § 9503, 9504)].

Therefore, the motion for summary judgment is granted, and

the motion for preliminary injunction is denied.

(s) ROBERT H. SCHNACKE

U.S. District Judge

Judgment

In accordance with the accompanying order,

IT IS ADJUDGED that the complaints and action are dis-

missed, without further leave to amend.

(s) ROBERT H. SCHNACKE

U. S. District Judge

* Of course, the due process clause of the 14th Amendment is violated

only by state action, not by private action.

APPENDIX C

United States Court of Appeals

for the Ninth Court

No. 75—1753, February |. 1977

ROBERT L.CHAZIN

v.

CARL WITKOVICH, W. F. OSTRANDER, TWIN PINES FEDERAL

SAVINGS AND LOAN ASSOCIATION; T. D. SERVICE COMPANY.

and DOES | - IV

Appeal from the United States District Court

for the Northern District of California

Sneed and Kennedy. Circuit Judges, and

Richey, District Judge.

The panel as constituted in the above case has voted to deny

the petitition for rehearing. Judges Sneed and Kennedy have

voted to reject the suggestion for a rehearing en banc, and Judge

Richey has recommended rejection of the suggestion for rehear-

ing en banc.

The full court has been advised of the suggestion for en banc

rehearing, and no judge of the court has requested a vote on the

suggestion for a rehearing en banc. Fed. R. App. P. 35(b).

The petition for rehearing is denied and the suggestion for a

rehearing en banc is rejected.

(23)

APPENDIX D

California Civil Code*

Section 2924.

Every transfer of an interest in property, other than in trust,

made only as a security for the performance of another act, is

to be deemed a mortgage, except when in the case of personal

property it is accompanied by actual change of possession, in

which case it is to be deemed a pledge. Where, by a mortgage

created after July 27, 1917, of any estate in real property, other

than an estate at will or for years, less than two, or in any trans-

fer in trust made after July 27, 1917, of a like estate to secure

the performance of an obligation, a power of sale is conferred

upon the mortgagee, trustee, or any other person, to be exercised

after a breach of the obligation for which such mortgage or

transfer is a security, such power shall not be exercised except

where such mortgage or transfer is made pursuant to an order,

judgment, or decree of a court of record, or to secure the pay-

ment of bonds or other evidences of indebtedness authorized or

permitted to be issued by the Commissioner of Corporations,

or is made by a public utility subject to the provisions of the

Public Utilities Act, until (a) the trustee, mortgagee, or bene-

ficiary, shall first file for record, in the office of the recorder of

each county wherein the mortgaged or trust property or some

part or parcel thereof is situated, a notice of default, identifying

the mortgage or deed of trust by stating the name or names of

the trustor or trustors and giving the book and page where the

same is recorded or a description of the mortgaged or trust

property and containing a statement that a breach of the obli-

gation for which such mortgage or transfer in trust is security

has occurred, and setting forth the nature of such breach and of

his election to sell or cause to be sold such property to satisfy

the obligation; (b) not less than three months shall thereafter

*All statutes in Appendix D are given as in force June 18, 1973.

(24)

-. .

elapse; and (c) after the lapse of the three months the mort-

gagee, trustee or other person authorized to make the sale shall

give notice of sale, stating the time and place thereof, in the

manner and for a time not less than that set forth in Section

2924f. A recital in the deed executed pursuant to the power of

sale of compliance with all requirements of law regarding the

mailing of copies of notices for which requests have been re-

corded or the publication of a copy of the notice of default or

the personal delivery of the copy of the notice of default or the

posting of copies of the notice of sale or the publication of a

copy thereof shall constitute prima facie evidence of compliance

with such requirements and conclusive evidence thereof in favor

of bona fide purchasers and encumbrancers for value and with-

out notice.

Section 2924b.

Request; recording; contents; form. Any person desiring a

copy of any notice of default and of any notice of sale under

any deed of trust or mortgage with power of sale upon real

property, as to which deed of trust or mortgage the power of

sale cannot be exercised until such notices are given for the time

and in the manner provided in Section 2924 may, at any time

subsequent to recordation of such deed of trust or mortgage

and prior to recordation of notice of default thereunder, cause

to be filed for record in the office of the recorder of any county

in which any part or parcel of the real property is situated, a

duly acknowledged request for a copy of any such notice of

default and of sale. This request shall be signed and acknowl-

edged by the person making the request, specifying the name

and address of the person to whom the notice is to be mailed,

shall identify the deed of trust or mortgage by stating the names

of the parties thereto, the date of recordation thereof and the

book and page where the same is recorded or the recorder’s

number and shall be in substantially the following form:

“In accordance with Section 2924b, Civil. Code, request is

hereby made that a copy of any notice of default and a copy of

a

any notice of sale under the deed of trust (or mortgage) recorded

Of eer ae ,19...,in Book...... Ae records of ......

County, (or filed for record with recorder’s serial number .. . .

pie is ts Bi County) California, executed by ........ as trustor

(or mortgagor) in which ......... , is named as beneficiary (or

mortgagee) and ..... as trustee be mailedto ..... Os sven

Name Address SED -ckctrnn dune vos %

Recorder’s duties. Uopn the filing for record of such request,

the recorder shall index in the general index of grantors the

names of the trustors (or mortgagor) recited therein and the

names of persons requesting copies.

Mailing notice. The mortgagee. trustee or other person

authorized to record the notice of default, shall within 10 days

following recordation of such notice of default deposit or cause

to be deposited in the United States mail an envelope, registered

and with postage prepaid, containing a copy of such notice with

the recording date shown thereon, addressed to each person

whose name and address are set forth in a duly recorded request

therefor, directed to the address designated in said request, and

at least 20 days before date of sale the mortgagee, trustee or

other person authorized to make the sale shall deposit or cause

to be deposited in the United States mail an envelope, registered

and with postage prepaid, containing a copy of the notice of the

time and place of sale, addressed to each person whose name

and address are set forth in a request therefor recorded, within

the time herein provided.

Request in instrument; publication; service. Any deed of

trust or mortgage with power of sale hereafter executed upon

real property may contain a request that a copy of any notice

of default and a copy of any notice of sale thereunder shall be

mailed to any person a party thereto at the address of such

person given therein, and a copy of any notice of default and of

any notice of sale shall be mailed to each such person at the

same time and in the same manner required as though a separate

request therefor had been filed by each of such persons as herein

nl a my

o Bx

authorized. If any deed of trust or mortgage with power of sale

executed after September 19, 1939, except a deed of trust or

mortgage of any of the classes excepted from the provisions of

Section 2924 does not contain a request of the trustor or mort-

gagor for special notice at the address of such person given there-

in or does contain such request but no address of such person is

given therein and if no request for special notice by such trustor

or mortgagor in substantially the form set forth in this section

has subsequently been recorded. a copy of the notice of default

shall be published once a week for a least four weeks in a news-

paper of general circulation in the county in which the property

is situated. such publication to commence within 10 days after

the filing of the notice of default. In lieu of such publication a

copy of the notice of default may be delivered personally to the

trustor or mortgagor within such 10 days or at any time before

publication is completed.

Effect of request upon title or as notice. No request for copy

of any notice filed for record pursuant to this section nor any

statement or allegation in any such request nor any record

thereof shall affect the title to real property or be deemed notice

to any person that any person requesting copies of notice has or

claims any right. title or interest, in, or lien or charge upon the

property described in the deed of trust or mortgage referred to

therein.

California Code of Civil Procedure

Section 1060. [Declaratory relief]

Any person interested under a deed, will or other written instru-

ment, or under a contract, or who desires a declaration of his

rights or duties with respect to another, or in respect to, in ,over

or upon property, or with respect to the location of the natural

channel of a watercourse, may, in cases of actual controversy

relating to the legal rights and duties of the respective parties,

bring an original action in the superior court or file a cross-

a» x

complaint in a pending action in the superior or municipal court

for a declaration of his rights and duties in the premises. includ-

ing a determination of any question.of construction or validity

arising under such instrument or contract. He may ask for a

delcaration of rights or duties. either alone or with other relief:

and the court may make a binding declaration of such rights or

duties, whether or not further relief is or could be claimed at

the time. The declaration may be either affirmative or negative

in form and effect, and such declaration shall have the force of

a finaMjudgment. Such declaration may be had before there has

been any breach of the obligation in respect to which said

declaration is sought.

Section 1062. [Other remedies not affected]

The remedies provided by this chapter are cumulative, and shall

not be construed as restricting any remedy, provisional or other-

wise, provided by law for the benefit of any party to such

action, and no judgment under this chapter shall preculde any

party from obtaining additional relief based upon the same facts.

APPENDIX E

Uniform Declaratory Judgments Act

Section 8.

Supplemental Relief. Further relief based on a declaratory

judgment or decree may be granted whenever necessary or

proper. The application therefor shall be by petition to a court

having jurisdiction to grant the relief. If the application be

deemed sufficient, the court shall, on reasonable notice, require

any adverse party whose rights have been adjudicated by the

declaratory judgment or decree, to show cause why further relief

should not be granted forthwith.

(29)

APPENDIX F

Superior Court of the State of California

for the County of Alameda

No. 440595, September 17, 1973

ROBERT L. CHAZIN

vs.

TWIN PINES FEDERAL SAVINGS AND LOAN ASSOCIATION, A

CALIFORNIA CORPORATION, WILLIAM OSTRANDER, DOES I,

I, 1, TV

Complaint for Declaratory Relief

Plaintiff alleges:

I

Defendent Twin Pines Federal Savings and Loan Association

(hereinafter Twin Pines) and Defendant T D Corporation are

California Corporations organized and doing business in Cali-

fornia pursuant to the laws of the State of California.

II

Defendants Twin Pines and T D Corporation are residents of the

County of Alameda, State of California, and were such at all

times mentioned herein.

Ill

Plaintiff is informed and believes and therew.. alleges that

defendants William Ostrander and Does I and II are the agents.

servants and employees of defendant Twin Pines, and were acting

within the scope of their agency and employment at all times

mentioned herein.

IV

Plaintiff is informed and believes and thereon alleges that

defendants Doe III and Doe IV are the agents, servants and

employees of defendant T D Corporation, and were acting

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~~

within the scope of their agency and employment at all times

mentioned herein.

V

On or about February 24, 1971 defendant Twin Pines, as bene-

ficiary, and Plaintiff as Trustor, made and entered into a first

Deed of Trust, evidenced by a written instrument, a copy of

which is attached hereto, marked Exhibit “A”, and incorporated

herein by reference as though fully set forth. On or about

Merch 3, 1971. said first deed of trust was recorded in the office

of the County Recorder of the County of Alameda, State of

California.

VI

On or about March 3, 1971, Plaintiff recorded a Request for

Notice of Detault and Notice of Sale under the Deed of Trust

with the Office of the County Recorder of the County of Ala-

meda, State of California. Said Request specified Plaintiffs

mailing address to be 2322 Russell Street, Berkeley. California.

Vil

On or about December |, 1970, Eleanor B. Lamson, as grantor

granted certain real property in the City of Berkeley to Robert

Chazin as grantee, said property being the subject matter of the

first deed of trust described and referred to in paragraph V

above. Said grant deed was recorded by Plaintiff on March 3,

1971 at the Office of the County Recorder, County of Alameda,

State of California. Said Grant deed specified plaintiff's address

as 2916 Elmwood Court. Berkeley, California, 94705. A copy

of said Grant Deed is attached hereto, marked Exhibit ““B”’, and

incorporated herein by reference as though fully set forth.

Vill

At all times since February 24, 1971, Plaintiff's actual address

has been and is 2916 Elmwood Court, Berkeley. California

94705.

1X

At all times since February 24, 1971, defendants, and each of

them had actual knowledge that plaintiff's true and actual

address was and is 2916 Elmwood Court, Berkeley, California

94705.

— Fo

\

Plaintiff is informed and believes and thereon alleges that from

and since March 31, 1971, all mail and other correspondence, of

every type whatsoever sent by defendants to Plaintiff has been

sent to Plaintiff at his true and actual address, to wit: 2916

Elmwood Court, Berkeley, California 94705. The actual number

of letters and other correspondence so sent by defendants is not

known to Plaintiff at this time and Plaintiff prays leave of Court

to amend this complaint, or any amendment thereof, when the

same has been ascertained. Plaintiff is informed and believes

and thereon alleges that said number of letters is in excess of

one dozen.

XI

On or about June 18, 1973, defendants, and each of them caused

a notice of default to be mailed to Plaintiff at 2322 Russell

Street, Berkeley, California. In so doing, defendants were acting

as the agents and servants of each other and were acting within

the scope of their agency and employment.

XIl

On June 18, 1973, Plaintiff did not and at no time thereafter,

did Plaintiff reside at 2322 Russell Street, Berkeley, California,

nor did Plaintiff receive mail at said address.

XIII

Plaintiff never actually received written notice of default.

XIV

An actual controversy has arisen and now extists between Plain-

tiff and Defendants concerning their respective right and duties

in that Plaintiff contends that, once having actual knowledge of

Plaintiff's true mailing address, and having addressed numerous

letters and other communications to Plaintiff at his true address,

Defendants should have mailed their Notice of Default to Plain-

tiff at the true address known to them to be the address where

Plaintiff would actually receive such notice. Defendants claim

that they need only mail notices to the address specified in

Plaintiff's recorded request for notice.

a

= =

XV

Plaintiff is informed and believes and thereon alleges, that

defendants, and each of them knew at all times mentioned here-

in, that Plaintiff would not receive notice of default mailed by

them to any other address but 2916 Elmwood Court, Berkeley,

California 94705.

XVI

Plaintiff desires a judicial determination of his rights and duties,

and a declaration as to which of the parties herein is correct

regarding the mutual rights and responsibilities of the parties

herein.

XVII

Such a declaration is necessary and appropriate in order that

Plaintiff may ascertain his rights and duties, and because defend-

ants’ right of foreclosure will be perfected on September 12,

1973, in which case Plaintiff will lose his statutory right to cure

his default.

XVIII

Wherefore, Plaintiff prays judgment against defendants as

follows:

1. For a declaration that defendants were obliged to send their

notice of default to Plaintiff at his true address, known to

them.

. For a declaration that any and all notices of default mailed

to Plaintiff at any address other than his true address, known

to defendants are null and void and of no legal effect.

3. For such other and further relief as to the Court may seem

proper.

te

(s) GEORGE A. LYDON

Attorney for Plaintiff

September 17, 1973

APPENDIX G

Restatement of Judgments 2d.

Tentative Draft No. | (1973)

Section 76.

When a plaintiff seeks solely declaratory relief, the weight of

authority does not view him as seeking to enforce a claim against

the defendant. Instead, he is seen as merely seeking a judicial

declaration as to the existence and nature of a relation between

himself and the defendant. The effect of such a declaration,

under this approach, is not to merge a claim in the judgment or

to bar it. Accordingly, regardless of outcome, the plaintiff or

defendant may pursue further declaratory or injunctive relief in

a subsequent action.

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