Bakhshoudeh v. Ghanizadeh

Filed 6/13/08 Bakhshoudeh v. Ghanizadeh 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of Orange County, Mary Fingal Schulte, Judge. Affirmed.

Larry Rothman & Associates and Larry Rothman for Defendant and Appellant.

Loeb & Loeb, Alan Wilken and Michael Black for Plaintiffs and Respondents.

* * *

Defendant Mina Ghanizadeh appeals a judgment quieting title in a parcel of real property in favor of plaintiffs Ayoub Bakhshoudeh and California Reconveyance Company (CRC) following the trial courts order granting plaintiffs summary judgment motion. Defendant contends the trial court lacked jurisdiction over the case because she had previously obtained a bankruptcy court judgment quieting title to the property in her name. She further contends Bakhshoudehs actual knowledge of a recorded lis pendens referencing the previous bankruptcy adversary proceeding at the time he refinanced the property defeated his bona fide purchaser status.

We conclude the trial court properly granted summary judgment and quieted title in plaintiffs favor. The bankruptcy courts exclusive jurisdiction over the property as property of the debtor was never properly invoked, and Bakhshoudeh was never afforded a full and fair opportunity to defend the bankruptcy adversary proceeding. We further conclude defendants recording of the lis pendens did not defeat Bakhshoudehs bona fide purchaser status because Bakhshoudeh recorded his interest before defendant recorded the lis pendens. Accordingly, we affirm.

i

Factual and Procedural Background

A third party transferred title to the property located at 13 Sandpiper, Irvine, to defendant by grant deed (Ghanizadeh deed) on December 9, 2002. Ten days later, on December 19, 2002, defendant executed a grant deed transferring the Sandpiper property to her putative fianc, Ali Shekarchi (Shekarchi deed), and appointed Shekarchi as her attorney-in-fact with authority to sign[], seal, execute, deliver, and acknowledge such deeds affecting the property. The Ghanizadeh deed and the Shekarchi Power of Attorney were recorded in the county recorders office on December 31, 2002. The Shekarchi deed was recorded on May 8, 2003.

In June 2003, Bakhshoudeh entered into an agreement with Shekarchi to purchase the property for $486,000. To finance the purchase of the property, Bakhshoudeh obtained a loan from CRC, secured by a deed of trust. On August 7, 2003, escrow closed on the property, with the grant deed from Shekarchi to Bakhshoudeh (Bakhshoudeh deed) and CRCs trust deed securing the purchase loan recorded on that date.

In February 2004, Shekarchi filed for chapter 7 bankruptcy protection. In April 2004, defendant filed an adversary complaint in the bankruptcy proceedings, alleging Shekarchi used a false promise of marriage to obtain title to the Irvine property. That same month, defendant recorded a notice of lis pendens referencing the bankruptcy action. In June 2005, defendant and Shekarchi entered into a stipulation for judgment in the bankruptcy court, which purported to award her title to the property. The court entered judgment against Shekarchi, his trust, and all persons and entities claiming an interest in the property located at 13 Sandpiper, Irvine . . . . The judgment was recorded on July 12, 2005. Neither Bakhshoudeh nor his agent was aware of the dispute between defendant and Shekarchi, the bankruptcy action, or the lis pendens until Bakhshoudeh sought to refinance the property in the summer of 2005.

In January 2006, plaintiffs filed their verified complaint seeking, inter alia, to quiet title to the property. Both defendant and plaintiffs filed motions for summary judgment; the trial granted plaintiffs motion and denied defendants. Defendant now appeals.

II

Discussion

A. Defendants Appeal Is Timely

Plaintiffs served notice of entry of judgment on February 22, 2007. On April 18, 2007, defendant deposited a notice of appeal with the superior court clerks office for filing. The clerks office, however, refused to file the notice because the defendants name in the notice was spelled differently from the spelling of defendants name in the complaint. Specifically, the caption of the complaint identifies defendant as MINA GHANIZDA, also known as MINA GHANIZADEH or MINA GHANIZADA . . . . In the notice of appeal caption, defendant spelled her name Ghanizadeh, which she asserts is the correct spelling of her name. After the clerk rejected the notice, defendant changed her name in the caption to Ghanizda and redeposited it for filing. The clerks office filed the revised notice of appeal on April 24, 2007, 61 days after the notice of entry of judgment. Plaintiffs contend defendants notice of appeal is untimely, and therefore we must dismiss her appeal. We disagree.

A notice of appeal must be filed within 60 days after service of notice of entry of judgment. (Cal. Rules of Court, rule 8.104.) The deadline is jurisdictional; once the deadline expires, the appellate court is powerless to entertain the appeal. (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56; see also Casado v. Sedgwick, Detert, Moran & Arnold (1994) 22 Cal.App.4th 1284, 1286 [appeal untimely where notice filed one day late].)

Nonetheless, [a] document is filed when it is actually delivered to the clerk of the court during office hours, even if the clerk erroneously refuses to file it. (Eliceche v. Federal Land Bank Assn. (2002) 103 Cal.App.4th 1349, 1361; see also Rapp v. Golden Eagle Ins. Co. (1994) 24 Cal.App.4th 1167, 1172 [The act of delivering the document to the deputy clerk at the court during office hours constituted the act of filing].) Here, defendant deposited her first notice of appeal with the deputy clerk for filing within the statutory time. The question arises whether the notice she deposited was legally adequate.

California Rules of Court, rule 8.100(a)(2) provides, in relevant part: The notice of appeal must be liberally construed. The notice is sufficient if it identifies the particular judgment or order being appealed. On this subject, the Supreme Court observed: Under this rule, and prior to its adoption, it is and has been the law of this state that notices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced. (Luz v. Lopes (1960) 55 Cal.2d 54, 59.) In liberally construing notices of appeal, courts have deemed notice to be adequate where the appellant makes a technical error, such as identifying the wrong appellate court (First American Title Company v. Mirzaian (2003) 108 Cal.App.4th 956, 959), or wrong case number (DAvola v. Anderson (1996) 47 Cal.App.4th 358, 361-362.)

In considering whether defendants first notice of appeal is adequate, we apply the well-established policy, based upon the remedial character of the right of appeal, of according that right in doubtful cases when such can be accomplished without doing violence to applicable rules. (Rapp v. Golden Eagle Ins. Co. (1994) 24 Cal.App.4th 1167, 1172.) Here, the notice of appeal accurately identified the judgment being appealed, the court, the case number, the plaintiff, and the correct spelling of defendants name. Plaintiffs do not contend they were misled or prejudiced by defendants actions, and do not address the adequacy of defendants first notice of appeal. We therefore conclude defendants first notice of appeal was legally adequate and timely filed.

B. The Trial Court Had Jurisdiction to Consider Bakhshoudehs Quiet Title Claim

Defendant contends the trial court lacked jurisdiction to render a judgment because the bankruptcy court had exclusive jurisdiction to determine issues concerning fraudulent and preferential transfers of a debtors property. We disagree.

Congress granted federal courts exclusive jurisdiction . . . [] (1) of all of the property, wherever located, of the debtor as of the commencement of [the] case, and of property of the estate. (28 U.S.C. 1334(e).) Property subject to the preferential and fraudulent transfer provisions of the bankruptcy code is best understood as that property that would have been part of the estate had it not been transferred before the commencement of the bankruptcy. (Begier v. Internal Revenue Service (1990) 496 U.S. 53, 58; see also, In re Bullion Reserve of North America (9th Cir. 1988) 836 F.2d 1214, 1217 ([P]roperty belongs to the debtor for purposes of [the preference statute] if its transfer will deprive the bankruptcy estate of something which could otherwise be used to satisfy the claims of creditors].) Accordingly, property transferred by virtue of an avoidable preference or fraudulent transfer is property . . . of the debtor falling within Congresss grant of exclusive jurisdiction to the federal courts in title 28 United States Code section 1334(e).

Nonetheless, the California Supreme Court has recognized that state courts remain free to adjudicate title controversies concerning assets transferred by the debtor where the bankruptcy court has not asserted its jurisdiction over them. (Beck v. Unruh (1951) 37 Cal.2d 148, 153.) To recover property transferred to a third party, the trustee or debtor in possession must first invoke the bankruptcy courts statutory avoiding powers. (See Official Comm. of Unsecured Creditors of 360networks (USA) Inc. v. Pub. Util. Commn. of California (In re 360networks (USA) Inc.) (Bankr. S.D.N.Y. 2004) 316 B.R. 797, 805.) The avoiding powers relating to preferential and fraudulent transfers are set forth in title 11 United States Code sections 547 and 548. These powers were never invoked in Shekarchis bankruptcy case.

Specifically, the adversary complaint defendant filed in the bankruptcy case mentioned Shekarchis sale of the property, but did not allege any facts suggesting the sale was fraudulent or preferential. Moreover, the complaint never purported to seek avoidance of the propertys transfer under title 11 United States Code sections 547 or 548. Instead, the complaint stated: This adversary proceeding is initiated against the Debtor/Defendant, ALI SHEKARCHI, by the Plaintiff to declare certain debts owed by Defendant as non-dischargeable under 11 U.S.C. Section 523(a)(20)(A) and 11 U.S.C. Section 523(A)(6).

The bankruptcy judgment also fails to make any finding or determination that the sale of the property was avoidable as a preference or fraudulent conveyance. Significantly, the relief granted in the judgment quieting title in defendant does not fall within the avoiding powers of the court under title 11 United States Code sections 547 and 546, which allow the bankruptcy estate, not an individual creditor, to recover the property. (See 11 U.S.C.  550.)

Finally, we note the statute of limitations for invoking the bankruptcy courts avoiding powers runs no later than two years after the filing of the bankruptcy petition. (11 U.S.C. 546.) Thus, the bankruptcy courts exclusive jurisdiction over the property was never, and cannot now be, properly invoked. Because no one had invoked the bankruptcy courts avoiding powers, the bankruptcy court never obtained in remjurisdiction over the property. We therefore conclude the state court had jurisdiction to consider Bakhshoudehs quiet title action.

C. The Bankruptcy Judgment Does Not Bar the Present Action

Even if the bankruptcy court did not have exclusive jurisdiction over the property, defendant contends the bankruptcy judgment purporting to quiet title against all persons and entities claiming an interest in the property bars plaintiffs from pursuing the present action. We disagree.

The preclusive effect of a bankruptcy judgment on a party to a later state court action is determined under res judicata principles. (See Roos v. Red (2005) 130 Cal.App.4th 870 (Roos); see also Martin v. Martin (1970) 2 Cal.3d 752, 758-759, original italics [The normal rules of res judicata and collateral estoppel apply to the decisions of bankruptcy courts].) The doctrine of res judicata rests upon the ground that the party to be affected, or some other with whom he is in privity, has litigated, or had an opportunity to litigate the same matter in a former action in a court of competent jurisdiction, and should not be permitted to litigate it again to the harassment and vexation of his opponent. Public policy and the interest of litigants alike require that there be an end to litigation. [Citation.] The doctrine precludes parties or their privies from relitigating a cause of action that has been finally determined by a court of competent jurisdiction. This aspect of res judicata has traditionally been referred to as res judicata or claim preclusion.

Res judicata also includes a broader principle . . . commonly referred to as collateral estoppel or issue preclusion. Under this principle an issue necessarily decided in prior litigation may be conclusively determined as against the parties or their privies in a subsequent lawsuit on a different cause of action. [Citation.] Thus, res judicata does not merely bar relitigation of identical claims or causes of action. Instead, in its collateral estoppel aspect, the doctrine may also preclude a party to prior litigation from redisputing issues therein decided against him, even when those issues bear on different claims raised in a later case. . . .

Collateral estoppel applies when (1) the party against whom the plea is raised was a party or was in privity with a party to the prior adjudication, (2) there was a final judgment on the merits in the prior action and (3) the issue necessarily decided in the prior adjudication is identical to the one that is sought to be relitigated. [Citation.]

In addition to these factors, and especially where collateral estoppel is applied offensively to preclude a defendant from relitigating an issue the defendant previously litigated and lost, the courts consider whether the party against whom the earlier decision is asserted had a full and fair opportunity to litigate the issue. [Citations.]

To that end, the courts have recognized that certain circumstances exist that so undermine the confidence in the validity of the prior proceeding that the application of collateral estoppel would be unfair to the defendant as a matter of law. [Citation.] . . . [A]pplication of collateral estoppel is unfair where the second action affords the defendant procedural opportunities [fn. omitted] unavailable in the first action that could readily cause a different result. (Roos, supra, 130 Cal.App.4that pp. 879-880, original italics; see also Kremer v. Chemical Constr. Corp. (1982)456 U.S. 461, 481 [Redetermination of issues is warranted if there is reason to doubt the quality, extensiveness, or fairness of procedures followed in prior litigation].)

Even the most cursory review of the circumstances of the bankruptcy court proceeding demonstrates that Bakhshoudeh never received a full and fair opportunity to litigate the matter. Defendants adversary complaint seeking to declare Shekarchis debt to her nondischargable alleged Shekarchi had sold the property to an unnamed third party. Despite knowing Shekarchi had sold the property, defendant did not name Bakhshoudeh whose ownership of the property had been recorded long before defendant filed the adversary complaint as a party to the action or serve him with a copy of the complaint or lis pendens. Bakhshoudeh never appeared in the bankruptcy action.

More importantly, the adversary complaint was never litigated. Defendant and Shekarchi stipulated to the judgment. Defendant does not explain how Bakhshoudeh could be bound by a stipulation he neither saw nor approved.

Defendant argues the trial courts judgment quieting title in Bakhshoudeh is a collateral attack on the prior federal bankruptcy judgment. The trial courts judgment, however, does not disturb the bankruptcy judgment as it pertains to defendant and Shekarchi. In other words, the bankruptcy court awarded defendant whatever interest Shekarchi had in the property at the time. The bankruptcy court, however, obtained neither in remjurisdiction over the property nor in personamjurisdiction over Bakhshoudeh. Accordingly, to the extent the bankruptcy judgment purports to affect Bakhshoudehs title to the property, it is void. (See Costello v. United States (1961) 365 U.S. 265, 284 [No adjudication on the merits occurs when court lacks jurisdiction].)

D. Bakhshoudehs Actual Knowledge of the Lis Pendens Did Not Defeat His Bona Fide Purchaser Status

Defendant contends Bakhshoudeh knew about the lis pendens before he refinanced the property in the summer of 2005, and that this knowledge defeated his bona fide purchaser status. We disagree.

Civil Code section 1107 provides: Every grant of an estate in real property is conclusive against the grantor, also against every one subsequently claiming under him, except a purchaser or incumbrancer who in good faith and for a valuable consideration acquires a title or lien by an instrument that is first duly recorded. (Italics added.) The purpose of a lis pendens is merely to furnish a means of notifying all persons of the pendency of an action and thereby to bind any person who may acquire an interest in [the] property, subsequent to the institution of the action, by any judgment which may be secured in the action affecting the property. [Citations.] (Kendall-Brief Co. v. Superior Court (1976) 60 Cal.App.3d 462, 468, italics added).)

Here, Bakhshoudehs duly recorded his interest in the property eight months before defendants lis pendens. Because a lis pendens affects only persons who obtain their interest after its recordation, the lis pendens defendant filed did not affect Bakhshoudehs status as a bona fide purchaser.

E. Defendant Waived Her Contention that CRC Lacks Standing

Defendant contends that CRC, as trustee on the trust deed securing a loan on the property, lacks standing to bring the present action. Defendant cites no authority for this contention.

[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citation.] (People v. Stanley (1995) 10 Cal.4th 764, 793.) Because defendant cites no authority supporting her position, we do not consider the matter further.

F. The Trial Court Did Not Err in Granting Declaratory Relief

Defendant contends declaratory relief will not lie in a quiet title action. We disagree.

We also reject defendants contention plaintiffs could not seek declaratory relief in a quiet title action. A statutory action to quiet title is not an exclusive remedy, but is cumulative to other remedies, such as partition actions, actions to remove a cloud on title, and declaratory relief actions. [Citation.] However, the trial court may require that the quiet title statutory provisions be utilized in these other actions in which quiet title to property is in issue. (Yeung v. Soos (2004) 119 Cal.App.4th 576, 580, fn. 2.) The only authority upon which defendant relies for her position, Code of Civil Procedure section 1060, authorizes declaratory relief in matters relating to the parties rights to property. Nothing in the statute restricts its scope to personal property; indeed, the statutes express reference to controversies relating to the location of the natural channel of a watercourse clearly refers to real property interests.

III

Disposition

The judgment is affirmed. Plaintiffs are entitled to their costs of this appeal.

ARONSON, J.

WE CONCUR:

MOORE, ACTING P. J.

FYBEL, J.

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