190 Cal. App. 4th 646
Cal. Ct. App.2010Background
- Dang obtained and later pursued collection on a judgment against Deaton and Probst who bought her bakery business and defaulted.
- Defendants recorded an abstract of judgment in 2001 attaching to Probst’s real property; the lien was extinguished upon Probst’s death in 2003.
- Bankruptcy filings by Deysi Probst further affected the lien’s status and discharged personal liability of the debtors.
- Dang alleged in a verified complaint multiple theories including failure to record or perfect a lien and other negligent acts; defendants moved for summary judgment.
- Dang offered new theories at summary judgment, but did not amend pleadings or present proposed amended pleading; the court granted summary judgment.
- The appellate court found that the new theories were not properly pleaded or proven and affirmed the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May plaintiff pursue unpleaded theories on summary judgment? | Dang seeks to rely on new theories beyond the complaint. | New theories are improper; pleadings govern the issues. | No viable new theories; affirmed summary judgment. |
| Did defendants negligently advise about preserving the lien by execution or severance? | Defendants failed to protect or advise on preserving the lien after death risk. | No pleaded basis; insufficient causation and damages; no amendment sought. | Not viable; summary judgment affirmed. |
| Was there a viable theory of negligent advice concerning suing Schantz or contract formation? | Defendants advised against pursuing Schantz and erred on contract analysis. | Outside the pleadings; not amended; causation/damages not shown; no viable claim. | Not viable; summary judgment affirmed. |
Key Cases Cited
- Caito v. United California Bank, 20 Cal.3d 694 (Cal. 1978) (encumbrances attach to debtor’s interest; joint tenancy survivorship effects lien)
- Estate of Propst, 50 Cal.3d 448 (Cal. 1990) (survivorship extinguishes decedent’s title and lien on survivor’s interest)
- Grothe v. Cortlandt Corp., 11 Cal.App.4th 1313 (Cal. App. 1992) (joint tenancy and execution rules; severance not automatic from lien attachment)
- Haster v. Blair, 41 Cal.App.2d 896 (Cal. App. 1940) (encumbrance against undivided interests attaches to respective debtor’s interest)
- Layton (Estate of Layton), 44 Cal.App.4th 1337 (Cal. App. 1996) (execution processes and homestead constraints in cotenancy contexts)
- Schoenfeld v. Norberg, 11 Cal.App.3d 755 (Cal. App. 1970) (execution sale limitations on homestead and cotenancy properties)
- Zeigler v. Bonnell, 52 Cal.App.2d 217 (Cal. App. 1942) (discussion of property interests and encumbrances in certain contexts)
- Re v. Re, 39 Cal.App.4th 91 (Cal. App. 1995) (trust/real property principles related to title and encumbrances)