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Seidenberg v. Needham
Seidenberg v. Needham
06/25/12





Seidenberg v








Seidenberg v. >Needham>



















Filed 2/24/12 Seidenberg v. Needham CA4/3













NOT TO BE PUBLISHED IN OFFICIAL REPORTS







California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.







IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA



FOURTH APPELLATE
DISTRICT



DIVISION THREE




>






MARK SEIDENBERG, as Executor, etc.,




Cross-complainant and Appellant;



v.



JOHN NEEDHAM et al.,




Cross-defendants and Respondents.










G044941



(Super. Ct.
No. 07CC05712)



O P I N I O
N


Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Geoffrey T. Glass, Judge. Affirmed.

D. Colette Wilson for
Cross-complainant and Appellant Mark Seidenberg.

Green & Hall, Robert
L. Green and Lawrence J. Luppi for Cross-defendants and Respondents John
Needham and Tustin Ave. Trust #500-110 UDT 5/8/03, Needham Family Investments,
Inc. as Trustee.



*
* *

Cross-complainant Mark
Seidenberghref="#_ftn1" name="_ftnref1" title="">[1]
(acting as executor of the estate of Sophie H. Seidenberg) appeals the court’s href="http://www.fearnotlaw.com/">judgment of dismissal with regard to two
of the seven cross-defendants he sued for slander of title and cancellation of
cloud on title, (1) John Needham and
(2) Tustin Ave. Trust #500-110 UDT 5/8/03, Needham Family Investments, Inc. as
Trustee (Tustin Ave. Trust). We
affirm.



FACTS



Seidenberg’s
deceased mother held two deeds of trust on a property in Anaheim,
California.
After a foreclosure sale occurred, various legal disputes ensued because
one of the deeds of trust was not paid off as a result of the sale. In November 2006, a trial court entered
judgment against Seidenberg in a prior case (not this case) brought by Tustin Ave. Trust: (1) declaring “the total unpaid balance of
the subject First Deed of Trust . . . to be $47,801.30 (consisting of principal
of $44,563.82 plus interest in the amount of $2,950.06 plus late fees in the
amount of $287.42”; (2) ordering Seidenberg to pay a civil penalty to Tustin
Ave. Trust in the amount of $300 pursuant to Civil Code section 2943, for
failing to provide a payoff amount to Tustin Ave. Trust upon written demand;
and (3) ordering Seidenberg to pay reasonable attorney fees and costs in an amount
to be determined by the court. This
court affirmed the prior judgment in Seidenberg v. Reliable Trust Deed Services,
Inc.
(Aug. 28,
2008, G037726,
G038072) [nonpub. opn.]. In December
2006, the trial court in the prior action awarded $68,540.50 in attorney fees
and $2,234.50 in costs. This
postjudgment order apparently was never appealed.

The
instant action was filed by the former owner of the Anaheim
property, Trees Wowor. Seidenberg filed
his cross-complaint in the instant case in August 2008. The cross-complaint alleges certain parties,
including Needham and Tustin Ave.
Trust, conveyed the Anaheim
property and recorded certain deeds in a manner suggesting Seidenberg no longer
held a valid first deed of trust with regard to the Anaheim
property.

Needham
and Tustin Ave. Trust filed a motion for
judgment
on the pleadings on the ground that Seidenberg could not establish
any pecuniary loss. They argued: (1) the prior action established the payoff
amount to extinguish Seidenberg’s deed of trust as $47,801.30; (2) the prior
action ordered Seidenberg to pay Tustin Ave. Trust $71,075 in attorney fees,
costs, and statutory penalties; and (3) because these awards offset one another
(and then some in favor of Tustin Ave. Trust), Seidenberg no longer was owed
any money and his deed of trust was no longer valid as the debt had been repaid
to him (not in cash, but as an offset against the money he owed to Tustin Ave.
Trust).

The
trial court agreed with this argument and granted the motion for judgment on
the pleadings. In the judgment, the
court made explicit what it deemed implicit in the outcome of the prior
action: “the judgment in favor of Tustin
Ave. Trust and against Seidenberg [in the prior action] is partially
satisfied. The net unpaid judgment in
favor of Tustin Ave. Trust and against Seidenberg is now $24,273.70 plus
interest.”



DISCUSSION



Seidenberg’s
appeal raises a single argument:href="#_ftn2"
name="_ftnref2" title="">[2] the prior action in which Tustin Ave. Trust
obtained a net recovery against Seidenberg was time barred because it was not
filed within one year of Seidenberg’s mother’s death as required by Code of
Civil Procedure section 366.2.href="#_ftn3"
name="_ftnref3" title="">[3] Seidenberg concedes in his brief that this
argument was not raised in the prior action or at the trial court in this
action, and that such a contention ordinarily would be untimely. Seidenberg asserts, however, that an executor
of an estate cannot waive or forfeit a statute of limitations defense held by the
estate.

Seidenberg
cites Nathanson v. Superior Court
(1974) 12 Cal.3d 355 in support of his argument. Nathanson
involved the late filing of a creditor’s claim in probate court.href="#_ftn4" name="_ftnref4" title="">[4] (Nathanson,
at pp. 358-360, 364-365.) Our Supreme
Court applied “the basic rule . . . that
all claims arising upon contract, all claims for funeral expenses and all
claims for damages as specified by the Probate Code ‘must be filed or presented within the time limited in the notice
[of administration] and any claim not so filed or presented is >barred forever . . . .’” (Id.
at p. 364.) In doing so, the court noted
cases holding “that the statutory requirement that a creditor’s claim be
presented or filed within the statutory period cannot be waived by the
representative of the estate.” (>Id. at p. 365.) Nathanson
had nothing to do with the statute of limitations specified in Code of Civil
Procedure section 366.2 and provides no support to the preposterous notion that
Seidenberg could somehow void a judgment made final three years ago by pointing
to a statute of limitations he only raised in an appeal of a separate case.

Seidenberg
refers in his reply brief to cases in which courts allowed the
executor/administrator of an estate to raise tardy href="http://www.fearnotlaw.com/">statute of limitations defenses on behalf
of the estate, even for the first time on appeal. (Reay
v. Heazelton
(1900) 128 Cal. 335, 338-339; Bryson v. Hill (1930) 107 Cal.App. 158, 160.) But these cases do not allow a statute of
limitations defense to be used to collaterally attack a final civil
judgment. We reject Seidenberg’s claim
without addressing the merits of whether the underlying action was even subject
to Code of Civil Procedure section 366.2.
(See Dacey v. Taraday (2011)
196 Cal.App.4th 962, 980-986 [analyzing applicability of Code of Civ.
Proc., § 366.2 to claims arising in part after decedent’s death].)



DISPOSITION



The
judgment is affirmed. Seidenberg’s
request for judicial notice is denied.
Respondents Needham and
Tustin Ave. Trust shall recover costs incurred on appeal.







IKOLA,
J.



WE CONCUR:







O’LEARY, P.
J.







MOORE, J.





id=ftn1>

href="#_ftnref1"
name="_ftn1" title="">[1] This
court is already familiar with Seidenberg and the underlying facts of this
dispute from prior appeals. (See >Wowor v. Esmaili (Nov. 30, 2010, G041434) [nonpub. opn.]; Seidenberg
v. Reliable Trust Deed Services, Inc.
(Aug. 28, 2008, G037726, G038072) [nonpub. opn.].)



id=ftn2>

href="#_ftnref2"
name="_ftn2" title="">[2] Seidenberg
made a second argument in his opening brief, but withdrew this argument in his
reply brief.

id=ftn3>

href="#_ftnref3"
name="_ftn3" title="">[3] “If
a person against whom an action may be brought on a liability of the person,
whether arising in contract, tort, or otherwise, and whether accrued or not
accrued, dies before the expiration of the applicable limitations period, and
the cause of action survives, an action may be commenced within one year after
the date of death, and the limitations period that would have been applicable
does not apply.” (Code Civ. Proc.,
§ 366.2, subd. (a).)

id=ftn4>

href="#_ftnref4"
name="_ftn4" title="">

[4] Creditors’
claims against a decedent’s estate must be filed before the later of: “(1) Four months after the date letters are
first issued to a general personal representative. [¶] (2) Sixty days after the date notice of
administration is mailed or personally delivered to the creditor.” (Prob. Code, § 9100, subd. (a).) At the time Nathanson was decided, the corresponding timing provisions
governing creditor claims against decedent’s estates were found in former
Probate Code section 700, subdivisions (a) and (c). (Cal. Law Revision Com. com., 53A West’s Ann.
Prob. Code (1991 ed.) foll. § 9100, p. 398.)




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