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Erik E. Lang v. Warren W. Roche et al

November 29, 2011

ERIK E. LANG, PLAINTIFF AND APPELLANT,
v.
WARREN W. ROCHE ET AL., DEFENDANTS AND RESPONDENTS.



APPEAL from a judgment of the Superior Court of Los Angeles County. Joseph S. Biderman, Judge. Reversed and remanded with directions. (Los Angeles County Super. Ct. No. SC104012)

The opinion of the court was delivered by: Boren, P.J.

CERTIFIED FOR PUBLICATION

Do principles of equity and fairness permit the redemption of property purchased by a judgment creditor at an invalid execution sale, though the statutory scheme characterizes execution sales as "absolute"? The answer is yes. Equitable redemption is available to those whose fundamental rights have been trampled. Citizens may not be dispossessed of their property by a "creditor" executing on a judgment that is void ab initio for lack of personal jurisdiction. Deploying a void judgment to seize the property of someone who was never served with the lawsuit violates the constitutional guarantee that no person shall be deprived of property without due process of law.

FACTS AND PROCEDURAL HISTORY*fn1

Feuding former neighbors Erik E. Lang and Warren W. Roche are before this court in propria persona, in the latest installment of their lengthy dispute. In 1977, respondent Roche sold property in Topanga Canyon to appellant Lang and they became next-door neighbors. Mutual animosity and litigation ensued.

In 1995, Roche brought a defamation suit against "Eric Lang." Roche and his attorney represented to the trial court that "Eric Lang" was nowhere to be found, although (1) appellant lived within eyesight of Roche; (2) appellant was regularly served at a post office box in prior litigation with Roche; and (3) Roche knew appellant's mailing address since 1977. With the trial court's permission, the summons was served by newspaper publication on "Eric Lang." "Eric Lang" is not appellant's name.

After serving process by publication on "Eric Lange," Roche secured a default judgment for $50,000 against "Eric Lang" in 1996. Eight years later, Roche obtained a writ of execution against appellant Erik Lang. Lang first learned about the default judgment in 2003, as Roche prepared to execute on it. On November 10, 2003, Lang filed a lawsuit against Roche and Roche's attorney, seeking to void the judgment and requesting injunctive relief to prevent Roche from executing on Lang's property.

Lang failed to prevent Roche from executing on the judgment. A sheriff's sale was conducted on November 19, 2003. At the sale, Roche purchased Lang's Topanga Canyon property for $100. There were no other bidders.

This Court ruled in favor of Lang in two appeals relating to the default judgment. First, we wrote that Lang may institute an independent action in equity to set aside a default judgment that is based on constitutionally inadequate service of process. If service by publication was wrongly approved based on a misspelling of Lang's name and a false claim that he was nowhere to be found, every judicial act based on the invalid service was void ab initio for lack of personal jurisdiction. We concluded that Lang alleged a viable claim for equitable relief from a default judgment obtained in violation of his due process rights.*fn2 In a second appeal following remand, we found that the trial court improperly demanded that Lang "prove a negative--that he was not served--instead of obliging [Roche] to prove that [Lang] was properly served."*fn3

The trial court vacated the default judgment in 2008. Roche subsequently served Lang with the summons and complaint. In response, Lang successfully moved to strike the defamation suit as a Strategic Lawsuit Against Public Participation (SLAPP), and Roche's lawsuit was dismissed. This Court affirmed the dismissal of Roche's lawsuit as a SLAPP in 2010. Lang's allegedly defamatory statements about Roche were made in an absolutely privileged communication to a government agency whose function is to investigate and remedy wrongdoing.*fn4

In 2009, Lang instituted the present lawsuit against Warren and Elena Roche (collectively, Roche). Lang seeks to quiet title to the real property in Topanga Canyon, which he purchased for $12,000 from Roche in 1977. Lang claims that Roche holds title to the property adversely, without any right to do so. He alleges that Roche obtained title and possession of the property through wrongful conduct, at a grossly inadequate price. Lang seeks a declaration that he has sole title to the property, and that Roche has no right, title or interest in it.

Roche demurred to Lang's complaint, on the ground that it is time-barred and fails to state a claim. Roche does not dispute that he obtained a writ of execution, and Lang's property was sold at a sheriff's sale. However, he argues that a lawsuit to set aside the sheriff's sale must be filed within 90 days after the sale and, since six years have passed, Lang's action is untimely. Lang responds that he has an equitable right to redeem real property sold to a judgment creditor at a grossly inadequate price, where the judgment creditor is guilty of unfairness or has taken undue advantage. Lang points to Roche's unfair acts in securing a default judgment, serving the lawsuit in a way that was calculated to deprive Lang of notice and an opportunity to be heard.

The trial court found that the purpose of Lang's lawsuit is to set aside the sheriff's sale of his property on November 19, 2003. An action to set aside a sheriff's sale for irregularities in the proceedings must be brought within 90 days after the sale. Lang's lawsuit was filed in 2009, years after the 90-day limitations period expired. The court sustained Roche's demurrer without leave to amend, on the ground that Lang's claim is ...


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