Opinion
B207734.
6-25-2009
ELI LEVI, Plaintiff and Respondent, v. G. GREGORY WILLIAMS, Defendant and Appellant.
G. Gregory Williams, in pro. per., for Defendant and Appellant. Christie Gaumer for Plaintiff and Respondent.
Not to be Published in the Official Reports
Defendant G. Gregory Williams appeals from a $256,639.12 default judgment in this action for quiet title, expungement of lis pendens, and damages. We affirm.
PRIOR HISTORY
The catalyst for this dispute, which has been before the federal and state courts on multiple occasions, was plaintiff Eli Levis purchase of Williamss condominium at an April 3, 2003 nonjudicial foreclosure sale. Williams, who describes himself as a retired attorney, contends that the sale was conducted in violation of the automatic bankruptcy stay that arose upon his filing of an April 1, 2003 bankruptcy petition (his second bankruptcy petition). However, on December 31, 2003, the bankruptcy court annulled the automatic stay retroactive to April 1, 2003, and the annulment ruling, having been affirmed by the Ninth Circuit Bankruptcy Appellate Panel (In re Williams (Bankr. 9th Cir. 2005) 323 B.R. 691) and the Ninth Circuit Court of Appeals (In re Williams (9th Cir., Oct. 12, 2006, No. 05-55541)), is now a final order.
Notwithstanding the annulment of the automatic stay to a date preceding the foreclosure sale, Williams continues to argue in this appeal that the trustees "deed is void and unenforceable because the foreclosure violated the bankruptcy stay." In order to address his contentions, we will discuss this litigations prior history, much of which is taken from the earlier bankruptcy opinions.
Williams, who purchased the condominium in 1995, transferred title to his fiancée, P. Toi Polpantu, by a deed recorded on April 21, 1999. However, by a quitclaim deed that was also dated April 21, 1999, but was not recorded, Polpantu transferred title back to Williams.
Williams and Polpantu were living in the condominium when the condominium association served notice of an April 3, 2003 foreclosure sale for Polpantus nonpayment of approximately $11,000 in association fees. Two days before the foreclosure sale, Williams filed his April 1, 2003 bankruptcy petition, but the petition did not disclose his interest in the condominium. When the April 3, 2003 foreclosure sale was held, Polpantu, not Williams, was the owner of record title. Levi purchased the condominium at the foreclosure sale for $215,000. One day after the foreclosure sale, Williams recorded the previously unrecorded April 21, 1999 quitclaim deed from Polpantu.
On April 8, 2003, Levi filed and served on Polpantu a statutory notice to quit. On April 11, 2003, the foreclosure trustees deed was recorded in favor of Levi. (See Civ. Code, § 2924h, subd. (c) [trustees deed must be recorded within 15 days of sale if perfection of buyers deed is to relate back to the time that the sale became final].)
On April 22, 2003, Levi filed an unlawful detainer action against Polpantu (Super. Ct. L.A. County, No. 03U408). Levi briefly obtained possession of the condominium, but he relinquished possession after the bankruptcy court issued an order enabling Williams to return to the condominium in June 2003.
In August 2003, Williamss bankruptcy action was dismissed, which terminated the automatic stay. (11 U.S.C. § 362(c).) Thereafter, Levi resumed his eviction efforts in the unlawful detainer action.
On October 1, 2003, Williams filed his third bankruptcy petition (case No. LA-03-35597-SB), and again requested that the bankruptcy court stay the eviction proceedings in the unlawful detainer action. On October 24, 2003, Levi filed a motion in the bankruptcy court for relief from the automatic stay (11 U.S.C. § 362(d)), in order to proceed with the unlawful detainer action. In opposition to the motion, Williams requested monetary sanctions against Levi for willfully violating the automatic stay. (11 U.S.C. § 362(k).) Although Williams sought monetary sanctions, he did not seek to invalidate the foreclosure sale.
On December 31, 2003, the bankruptcy court refused to stay the eviction proceedings in the unlawful detainer action and granted Levis motion for relief from the automatic stay. (11 U.S.C. § 362(d).) The bankruptcy court retroactively annulled the automatic stay to the date of Williamss second April 1, 2003 bankruptcy petition, thereby precluding Williams from attacking the April 3, 2003 foreclosure sale on the ground that the sale was conducted in violation of the automatic stay.
In its December 31, 2003 order, the bankruptcy court stated that Levi was entitled to relief from the stay because Williams had not sought to invalidate the foreclosure sale. The bankruptcy court stated in relevant part: "Notwithstanding that the foreclosure sale may be void under Ninth Circuit law, the debtor has taken no action, either in this case or in the prior case, to set aside the sale. Levi now moves for relief from stay to proceed with eviction of the debtor from the condominium. [¶] Because the debtor has not taken any such action, notwithstanding that the foreclosure occurred almost eight months ago, the court finds that the debtor has unduly delayed and that relief from stay should be granted and the purchaser should not be further inhibited from obtaining possession of the property. [¶] Accordingly, it is ordered that the relief from stay motion is granted retroactively to April 1, 2003 and the motion to stay eviction is denied."
As we previously stated, the portion of the bankruptcy courts December 31, 2003 order annulling the automatic stay retroactive to April 1, 2003 is now final. Both the Ninth Circuit Bankruptcy Appellate Panel (In re Williams, supra, 323 B.R. 691) and the Ninth Circuit (In re Williams, supra (9th Cir., Oct. 12, 2006, No. 05-55541)) have affirmed that part of the December 31, 2003 order.
PRESENT ACTION
After the automatic stay was retroactively annulled, Levi proceeded with the unlawful detainer action and obtained a writ of possession. Williamss third bankruptcy petition (case No. LA-03-35597-SB) was dismissed on February 9, 2004. Polpantu and Williams were evicted from the condominium in late February 2004, 10 months after the foreclosure sale.
I. Levis Complaint
When Levi filed the present action against Williams and Polpantu (who is not a party to this appeal) on March 2, 2004, because Williamss third bankruptcy petition had been dismissed, there was no automatic stay in effect. In his complaint, Levi sought to: (1) cancel the quitclaim deed from Polpantu to Williams; (2) quiet title in his favor and expunge the lis pendens that was recorded by Williams; (3) obtain declaratory relief as to title and all rights of possession and ownership in the condominium; (4) recover reasonable rent ($2,500 per month) from the date of the foreclosure sale; (5) recover damages for waste and destruction of the condominiums interior fixtures, walls, flooring, ceiling, and kitchen and bathroom improvements that occurred between June 2003, when Levi briefly obtained possession of the condominium, and February 2004, when Williams and Polpantu were evicted; and (6) recover damages for intentional infliction of emotional distress.
Williams filed a motion with the Ninth Circuit Bankruptcy Appellate Panel to stay this action while his appeal from the bankruptcy courts December 31, 2003 order was being decided. The request for a stay was denied, which allowed Levi to proceed with this action while Williamss federal appeal was pending.
Williams demurred to Levis complaint on the ground that the April 3, 2003 foreclosure deed was obtained in violation of the automatic stay that took effect on April 1, 2003. Levi filed an amended complaint that was similar to the original complaint. Williams again demurred on the ground that the foreclosure deed was obtained in violation of the automatic stay. After the trial court overruled the demurrer, Williams specially appeared to file his answer.
In his answer filed on August 20, 2004, Williams contended, as he does on appeal, that the superior court lacked subject matter jurisdiction over this case, which he claimed was under the bankruptcy courts exclusive jurisdiction. Williams further alleged that the April 3, 2003 foreclosure deed was obtained in violation of the automatic stay that took effect on April 1, 2003.
II. Filing and Dismissal of Williamss Cross-Complaint
On August 20, 2004, Williams filed a cross-complaint against Levi and numerous others involved in the foreclosure and eviction proceedings that are not parties to this appeal (including Levis attorneys, the homeowners association, and the Los Angeles County Sheriffs Department). In the cross-complaint, Williams pursued claims for quiet title and declaratory relief on the theory that the April 3, 2003 foreclosure sale was conducted in violation of the automatic stay that took effect on April 1, 2003.
The trial court dismissed the cross-complaint after granting Levis special motion to strike under the anti-SLAPP statute. (Code Civ. Proc., § 425.16.) As will be discussed below, Williams filed two prior appeals regarding the cross-complaint, one from the order granting the special motion to strike (No. B184798), and the other from the order of dismissal (No. B204322). This court dismissed both prior appeals as moot, given that the cross-complaints claims are under the exclusive jurisdiction of the bankruptcy court.
In this appeal from the default judgment on the complaint, Williams contends that the dismissal of his prior appeals (No. B184798 and No. B204322) as moot, on grounds that the cross-complaints allegations are under the bankruptcy courts exclusive jurisdiction, was actually a reversal of the trial courts "threshold determination" of its jurisdiction to entertain the special motion to strike. By viewing the dismissal of his earlier appeals as a reversal, Williams argues his peremptory challenge that was filed after the case was remanded was erroneously denied. (Code Civ. Proc., § 170.6, subd. (a)(2) [a peremptory challenge may be made following reversal on appeal of a trial courts decision].) And given his position that the trial judge was disqualified to hear this case, he further contends the trial court lacked jurisdiction to strike his answer, enter his default, and grant a default judgment on the complaint. With this in mind, we will discuss the facts regarding the dismissed cross-complaint.
A. Special Motion to Strike
After being served with the cross-complaint, Levi timely filed a special motion to strike the cross-complaint under the anti-SLAPP statute. (Code Civ. Proc., § 425.16.) In support of the motion, Levi argued that "all of the conduct alleged was already litigated by Levi and Williams in the bankruptcy court or was otherwise privileged conduct under the anti-SLAPP statute." Levi asserted that the alleged activities—purchasing the condominium at the nonjudicial foreclosure sale, pursuing the unlawful detainer action, and obtaining relief from the automatic stay—were protected litigation activities that are not actionable. Levi further contended that Williams was incapable of showing a probability of success on the merits, stating: "Williams essentially seeks damages for violation of the automatic stay, or alternatively a determination of this court as to matters that were presented in the bankruptcy court, and are now on appeal in the Bankruptcy Appellate Panel. Thus, this court is not the proper forum to present these claims. Further, all of the conduct for which Williams seeks [relief] here is protected litigation conduct for which Williams cannot obtain damages. [Fn. omitted.]"
B. Removal to Federal District Court
Before the special motion to strike was heard, Williams removed this action to the federal district court on October 15, 2004. On October 28, 2004, the district court issued an order to show cause as to why this action should not be remanded, given that the notice of removal was not timely filed within 30 days of Williamss receipt of the complaint. (28 U.S.C. § 1446(b) [the notice of removal shall be filed within 30 days after receipt of the complaint].)
C. Remand to State Court
On November 4, 2004, Levi filed a motion in district court to remand this action to state court, arguing that the removal was not timely and the district court lacked jurisdiction over the cross-complaint, which involved the same claims that were pending before the Bankruptcy Appellate Panel. Williams then requested that this action be transferred to the bankruptcy court.
On November 15, 2004, the district court transferred this action to the bankruptcy court for all purposes, including a hearing on the motion for remand. On February 24, 2005, the bankruptcy court entered the order granting Levis motion for remand. Williams appealed the remand order to the Bankruptcy Appellate Panel, which affirmed the order on March 10, 2006. Williams then appealed the Bankruptcy Appellate Panels ruling to the Ninth Circuit, which affirmed the decision on October 12, 2006.
D. Order Granting Special Motion to Strike and Prior Appeal No. B184798
While Williamss appeal from the remand order was pending before the Bankruptcy Appellate Panel, the superior court granted Levis special motion to strike the cross-complaint under the anti-SLAPP statute on June 24, 2005.
Williams amended his notice of appeal before the Bankruptcy Appellate Panel to seek additional review of the anti-SLAPP ruling on the cross-complaint. In an unpublished memorandum decision dated March 10, 2006, the Bankruptcy Appellate Panel affirmed the bankruptcy courts remand order, but dismissed the appeal from the anti-SLAPP ruling for lack of subject matter jurisdiction.
Williams filed an appeal before this court from the order granting the special motion to strike the cross-complaint (No. B184798). (Code Civ. Proc., § 425.16, subd. (i) [an order granting or denying a special motion to strike is appealable under section 904.1].) On February 7, 2007, we issued an order to show cause as to why the appeal was not moot in light of the bankruptcy court proceedings. After considering the parties responses and taking judicial notice of the bankruptcy court records, we dismissed the appeal in No. B184798 as moot on June 26, 2007. We concluded "that the causes of action which compose the cross-complaint at issue in this appeal fall under the exclusive jurisdiction of the United States Bankruptcy Court" and "this Court has no authority to resolve the issues at bar."
E. Peremptory Challenge
After the matter was remanded to the superior court, Williams filed a peremptory challenge against Judge Mary Thornton House on September 5, 2007. (Code Civ. Proc., § 170.6.) Williams argued that the dismissal of his appeal (No. B184798) constituted a reversal of Judge Houses prior rulings, which triggered the right to file a peremptory challenge. Williams stated that "the appeals courts determination that it derived no jurisdiction from the Superior Court to entertain the appeal because the matters involve[d] arose under exclusive bankruptcy jurisdiction, constitutes a reversal of all orders enter[ed] in the trial court because [they] were necessarily entered in excess of its jurisdiction." The peremptory challenge was denied.
F. Dismissal of Cross-Complaint and Prior Appeal No. B204322
On October 10, 2007, the superior court dismissed the cross-complaint in conformity with this courts determination in appeal No. B184798 that the claims alleged in the cross-complaint were within the bankruptcy courts exclusive jurisdiction. On December 7, 2007, Williams appealed from the order dismissing the cross-complaint (No. B204322). On January 18, 2008, the appeal was dismissed as moot for lack of subject matter jurisdiction. The remittitur issued on March 21, 2008.
III. Default Judgment on the Complaint
On January 28, 2008, the trial court held a mandatory settlement conference and final status conference on Levis complaint. Williams failed to appear. As a sanction for his nonappearance, the trial court struck his answer and entered his default on January 28, 2008. (Code Civ. Proc., § 575.2, subd. (a) [answer may be stricken and default judgment may be entered for failure to comply with court rules].)
The trial court set the matter for a default prove-up hearing at which Williams again failed to appear. On March 7, 2008, based on the testimony and documents presented by Levi at the default prove-up hearing, the trial court entered a default judgment that granted the following relief: (1) title to the condominium was quieted in favor of Levi and against Polpantu and Williams; (2) the quitclaim deed from Polpantu to Williams was cancelled and removed from the real property records; (3) the lis pendens recorded by Williams against the property was expunged; (4) record title to the property was perfected in favor of Levi; (5) Levi was awarded $256,639.12 in damages against Polpantu and Williams, jointly and severally, consisting of $30,550 in lost rents, $44,400.91 for waste, and $181,688.21 in lost profits; and (6) Levi was awarded costs and postjudgment interest.
Williams filed a timely notice of appeal from the judgment.
DISCUSSION
"Where, as here, the defaulting party takes no steps in the trial court to set aside the default judgment, appeal from the default judgment presents for review only the questions of jurisdiction and the sufficiency of the pleadings. [Citations.]" (Corona v. Lundigan (1984) 158 Cal.App.3d 764, 766-767.) In addition, the issue of excessive damages may be reviewed on an appeal from a default judgment "if the damages awarded exceed the sum sought in the complaint. [Citations.]" (Steven M. Garber & Associates v. Eskandarian (2007) 150 Cal.App.4th 813, 824.)
I. Jurisdiction
Williams attacks the trial courts jurisdiction over this case on numerous grounds. For the following reasons, we reject his contentions.
A. This Case Was Properly Remanded to the Superior Court
Williams contends that the superior court lacked jurisdiction because this case was never remanded following its removal to the federal district court. He argues that in order for a case to be remanded, the district court clerk must mail a certified copy of the order of remand to the superior court. He relies upon section 1447(c) of Title 28 of the United States Code (section 1447(c)), which provides in relevant part: "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. . . . A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case." (Italics added.)
Although Williams concedes that Levi provided the superior court with a copy of the February 23, 2005 remand order, he argues that because a certified copy of the order was not mailed by a district court clerk, this case was never remanded by the district court in compliance with section 1447(c). Technically speaking, Williams is correct. However, the obvious purpose of section 1447(c)s mailing requirement is to provide the state court with notice of the remand order. Where, as in this case, the state court receives actual notice of the remand order and actively resumes jurisdiction over the case, the superior court does not lack jurisdiction. To conclude otherwise simply because the order was not mailed by a district court clerk would only serve to elevate form over substance. Williams has cited us no authority to the contrary.
In a recent decision that was filed after the briefing period in this appeal, we held that, for purposes of computing the three-year dismissal period under Code of Civil Procedure section 583.420, the period during which the superior courts jurisdiction was suspended pending the mailing by the district court clerk of the remand order should not have been counted toward the three-year dismissal period. (Spanair S.A. v. McDonnell Douglas Corp. (2009) 172 Cal.App.4th 348 (Spanair).) In Spanair, the remand order was entered on December 7, 2004, but the district court clerk did not mail it for over two years, during which time the superior court was unaware of the remand order. Finally, on September 5, 2007, the plaintiffs filed an ex parte motion in superior court to place the matter back on the civil active list. The "plaintiffs attorney explained that the case had been `in limbo for more than two years due to the district court clerks failure to send a certified copy of the remand order, and he was not certain what needed to be done to reactive the case in state court." (Id. at p. 353.) After the superior court denied the ex parte motion, the plaintiffs attorney inquired of the district court clerk regarding the status of the case, which prompted the clerk to mail the remand order to the superior court in September 2007. On October 26, 2007, the defendants moved to dismiss the action under the three-year dismissal statute. (Code Civ. Proc., § 583.420.) The trial court granted the dismissal motion, noting that the plaintiffs had done nothing in three years to pursue their case. We reversed the dismissal order based on our determination that, until the district court clerk mailed the certified copy of the remand order in September 2007, the superior courts jurisdiction was suspended, and the period of suspension should not have been counted against the plaintiffs in computing the three-year dismissal period. We stated that "the suspension of the state courts jurisdiction was caused by defendants, when they removed the matter to federal court in August 2004," and the "[p]laintiffs had no statutory obligation to expedite the remand." (Spanair, at p. 359.)
Spanair is distinguishable from this case, which does not involve a motion to dismiss under the three-year dismissal statute. If such a motion had been brought against Levi, it necessarily would have been denied because there was no delay in prosecution. Once the remand order was issued, Levi filed the order with the superior court, which resumed its jurisdiction over this action. Accordingly, Spanair is of no assistance to Williams.
B. The Bankruptcy Court Had Jurisdiction to Remand This Case
Williams contends that the remand order was invalid because the bankruptcy court lacked jurisdiction to remand this case. He argues that if this case is viewed as a "core proceeding" under title 28, section 157, it "may not be remanded because the bankruptcy court is duty bound to exercise the exclusive jurisdiction given it under Section 1334(a). See, Quackenbush v. Allstate Ins.(1996) 517 U.S. 706 . . . ." He alternatively argues that if this case is viewed as a "noncore" proceeding, the remand was improper because noncore proceedings may only be remanded by the district court upon recommendation from the bankruptcy court. (Citing 28 U.S.C. § 157(c).)
The problem with either contention is that the bankruptcy courts remand order, having been affirmed by both the Ninth Circuit Bankruptcy Appellate Panel and the Ninth Circuit, is a final order that, under the doctrine of collateral estoppel, may not be relitigated in this action. "`A federal judgment "has the same effect in the courts of this state as it would have in a federal court." [Citation.] (Younger v. Jensen (1980) 26 Cal.3d 397, 411.) The federal rule is that `"a judgment or order, once rendered, is final for purposes of res judicata until reversed on appeal or modified or set aside in the court of rendition." (Calhoun v. Franchise Tax Bd. [(1978)] 20 Cal.3d [881,] 887; Martin v. Martin (1970) 2 Cal.3d 752, 761-762.) Because the federal courts ruling on the [remand order] has not been reversed or modified, the decision is `final." (Lumpkin v. Jordan (1996) 49 Cal.App.4th 1223, 1230-1231, fn. omitted.)
Williams contends that an order may be collaterally attacked if it is void for lack of jurisdiction. (Rico v. Nasser Bros. Realty Co. (1943) 58 Cal.App.2d 878, 882 [an order is not subject to collateral attack unless it is void for lack of jurisdiction and the invalidity appears on the face of the record].) However, in this case the bankruptcy courts lack of jurisdiction does not appear on the face of the record. On the contrary, the Bankruptcy Appellate Panel considered and rejected Williamss jurisdictional argument that "because the case is a core proceeding," the bankruptcy court was required "to exercise the exclusive jurisdiction given it under 28 U.S.C. § 1334(a)." After reviewing the record, the Bankruptcy Appellate Panel found the remand order to be valid for three reasons: (1) Williams failed to remove this case within 30 days after receiving the complaint; (2) Williams waived the right to remove this case by filing the cross-complaint, which invoked the state courts jurisdiction; and (3) the district court properly referred the removal issues to the bankruptcy court, which did not err in granting the motion to remand. These rulings are binding on Williams and may not be attacked in this action.
Williams also argues that the superior court lacked jurisdiction over this case because the quiet title complaint was filed on March 18, 2004, which was "well after the bankruptcy court had first acquired in rem jurisdiction. [Citation omitted.] As such, the superior court could not initiate jurisdiction over the same `res or real property." We disagree. The record shows that when the quiet title complaint was filed, the third bankruptcy petition had been dismissed, which terminated the automatic stay. (11 U.S.C. § 362(c).)
C. The Prior Appeal Did Not Divest the Superior Court of Jurisdiction
Williams contends that while his prior appeal from the dismissal of the cross-complaint (No. B204322) was pending, the superior court lacked jurisdiction over the complaint and was precluded from striking his answer and entering his default. In support of this contention, Williams cites Code of Civil Procedure section 916, subdivision (a), which states that, with certain exceptions, "the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order."
We are not persuaded. Under the circumstances, the order dismissing the cross-complaint was not an appealable order. The one final judgment rule provides that "[w]here a complaint and cross-complaint involving the same parties have been filed, there is no final, appealable judgment until both have been resolved. (American Alternative Energy Partners II v. Windridge, Inc. (1996) 42 Cal.App.4th 551, 556-557.) Thus, in American Alternative Energy Partners II, an order dismissing plaintiffs complaint was not separately appealable but could be reviewed only on appeal from the final judgment on defendants cross-complaint. (Id. at p. 557.)" (ECC Construction, Inc. v. Oak Park Calabasas Homeowners Assn. (2004) 122 Cal.App.4th 994, 1002.) Given that the order dismissing the cross-complaint was "nonappealable, the appeal was never perfected and the trial court retained jurisdiction over the issue." (Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 666.)
D. The Peremptory Challenge Was Properly Denied
As was previously mentioned, Williams views the dismissal of his prior appeals (No. B184798 and No. B204322) as a reversal of the trial courts "threshold determination" of its jurisdiction to entertain the special motion to strike. Because he views the dismissal of his earlier appeals as a reversal, Williams argues the peremptory challenge that was filed after the case was remanded was erroneously denied. (§ 170.6, subd. (a)(2) [peremptory challenge may be made following reversal on appeal of a trial courts decision].) And because he believes the trial judge was disqualified to hear this case, he contends the trial court lacked jurisdiction to strike his answer, enter his default, and grant a default judgment on the complaint. The contention lacks merit.
We disagree that the dismissal of the prior appeals constituted a reversal of the trial courts decisions. The cross-complaint sought to invalidate the foreclosure sale on the theory that it was conducted in violation of the automatic stay. But Williams is precluded under the doctrine of collateral estoppel from relitigating this theory, which was extinguished by the bankruptcy courts December 31, 2003 annulment of the automatic stay retroactive to April 1, 2003. As we previously mentioned, that order, having been affirmed by both the Ninth Circuit Bankruptcy Appellate Panel (In re Williams, supra, 323 B.R. 691) and the Ninth Circuit (In re Williams, supra (9th Cir., Oct. 12, 2006, No. 05-55541), is a final order. We dismissed the prior appeals in light of the collateral estoppel effect of the December 31, 2003 order, which placed the claims alleged in the cross-complaint under the exclusive jurisdiction of the bankruptcy court. Accordingly, our dismissal of the prior appeals was entirely consistent with the order granting the special motion to strike. The contrary inference that Williams urges, which is that we reversed the trial courts decisions by dismissing the prior appeals, is entirely unsupported by the record or the applicable law. Given that we did not reverse the trial courts orders or rulings, the peremptory challenge was properly denied.
E. Severance of the Cross-Complaint Was Not Prejudicial
Williams contends that the trial court exceeded its jurisdiction by severing the cross-complaint. The difficulty we have with this argument is that the cross-complaint was stricken under the anti-SLAPP statute. Even if we assume for the sake of argument that the cross-complaint should not have been severed, the severance could not have been prejudicial given that the cross-complaint was stricken. Accordingly, Williams has failed to meet his burden of establishing prejudicial error. (Cal. Const., art. VI, § 13; Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
II. Sufficiency of the Pleadings
Williams contends that the trial court erroneously overruled his demurrers to the complaint. Finding no merit in his arguments, we reject his contentions.
A. There Was No Violation of the Automatic Stay
Williams argues that "[e]verything alleged in the complaint flow[s] from this void title" that "is permanently void because it was obtained in violation of the stay." As we previously stated, however, the portion of the bankruptcy courts December 31, 2003 order annulling the automatic stay retroactive to April 1, 2003 is a final order, which Williams is precluded from relitigating under the doctrine of collateral estoppel.
B. Levi May Maintain a Cause of Action for Waste
Williams argues that the demurrer to the cause of action for waste should have been sustained because Levi is not a real party in interest. He contends that only those with a security interest in the condominium may bring a cause of action for waste based on the impairment of the security. Williams asserts that because the foreclosure sale resulted in a surplus, not even the association could have brought an action for waste.
However, we do not view the cause of action for waste so narrowly. In our view, a cause of action for waste may be maintained by Levi, as the owner of an interest in the condominium, against Williams, as a person in possession of the condominium, notwithstanding the lack of a security agreement between them. "As our high court has explained: `"[W]aste is conduct (including in this word both acts of commission and of omission) on the part of the person in possession of land which is actionable at the behest of, and for the protection of the reasonable expectations of, another owner of an interest in the same land . . . . Thus, waste is, functionally, a part of the law which keeps in balance the conflicting desires of persons having interests in the same land. (5 Powell on Real Property (1974) § 636, pp. 5-6.)" (Cornelison v. Kornbluth (1975) 15 Cal.3d 590, 597-598.) Waste evolved and broadened from a cause of action designed to protect owners of succeeding estates against the improper conduct of the person in possession which harmed and affected the inheritance, to a legal means by which any concurrent nonpossessory holders of interest in the land are enabled to prevent or restrain harm to the land committed by persons in possession. (Id., at p. 598.)" (Smith v. Cap Concrete, Inc. (1982) 133 Cal.App.3d 769, 775.)
C. No Emotional Distress Damages Were Awarded
Williams contends that the demurrer to the emotional distress claim should have been sustained because all of the alleged activities were protected under the litigation privilege of Civil Code section 47, subdivision (b). We need not discuss this issue, however, in light of the fact that no damages were awarded for emotional distress.
III. Damages
A. Statement of Damages
Williams contends that a statement of damages should have been filed under Code of Civil Procedure section 425.11 before his default was entered. The contention lacks merit. "A statement of damages is required only in cases involving personal injuries or wrongful death. (Code Civ. Proc., § 425.11.)" (Steven M. Garber & Associates v. Eskandarian, supra, 150 Cal.App.4th at p. 824.)
B. Quiet Title by Default
Williams argues that Code of Civil Procedure section 764.010 (section 764.010) prohibits default judgments in quiet title actions. The statute provides: "The court shall examine into and determine the plaintiffs title against the claims of all the defendants. The court shall not enter judgment by default but shall in all cases require evidence of plaintiffs title and hear such evidence as may be offered respecting the claims of any of the defendants, other than claims the validity of which is admitted by the plaintiff in the complaint. The court shall render judgment in accordance with the evidence and the law." (Italics added.)
Division Five of this district rejected this same argument. (Yeung v. Soos (2004) 119 Cal.App.4th 576, 580-581.) We agree with its analysis, which we quote at length: "Code of Civil Procedure section 764.010 is frequently referred to as a prohibition against default judgments in quiet title actions. (See Winter v. Rice (1986) 176 Cal.App.3d 679, 683.) `However, the provision against default judgments [in quiet title actions] appears to be a misnomer; i.e., it seems only to require a higher standard of evidence at the "prove-up" hearing []. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2003) ¶ 5:271, p. 5-59.) Competent evidence is required at the hearing of a quiet title action after default. (Id., ¶ 5:190, p. 5-45, ¶ 5:203, p. 5-47.) Code of Civil Procedure section 764.010 simply provides that a plaintiff does not have a right to entry of judgment in his or her favor as a matter of course following entry of the defendants default in a quiet title action. (Winter v. Rice, supra, 176 Cal.App.3d at p. 683.) The statute does not preclude entry of a defendants default. (Ibid.; see Code Civ. Proc., § 585, subd. (b).) In fact, the statute was expressly intended to be consistent with Code of Civil Procedure section 583, subdivision (c), which concerns default judgments where service is by publication. (Cal. Law Revision Com. com., 17A Wests Ann. Code Civ. Proc. (2004 supp.) § 764.010, p. 58.)
"Code of Civil Procedure section 764.010 does require, however, an evidentiary hearing in a quiet title action after default. In quiet title actions, default proceedings must be conducted by means of evidentiary hearings. (Super. Ct. L.A. County, Local Rules, rule 9.11(b).) In quiet title actions, judgment may not be entered by the normal default prove-up methods; the court must require evidence of the plaintiffs title. (Cal. Real Property Remedies Practice (Cont.Ed.Bar 2d ed. 2002) Quieting Title, § 7.50, p. 394 [`If properly served defendants have not appeared, their default may be entered by the clerk, and judgment entered after a default prove-up hearing. [Citation.] All proof that plaintiff would have had to present at trial, however, must be presented at that hearing; a declaration or other summary procedure will not be permitted. Live witnesses must testify, and complete authentication of the underlying real property records is essential.].)" (Yeung v. Soos, supra, 119 Cal.App.4th at pp. 580-581, fn. omitted.)
Williams contends that at the default prove-up hearing, Levi failed to proffer the "actual foreclosure deed on unit 207, the property in question. Instead, he fraudulently proferred a foreclosure deed, which he knew the trustee had inadvertently recorded on another unit in the complex," identified as unit 408, on September 23, 2003, over five months after the foreclosure sale. The record, however, does not support this contention. The record shows that Levi submitted a trustees deed for unit 207, which was recorded on April 11, 2003, which was within the 15-day statutory period set forth in Civil Code section 2924h, subdivision (c) (trustees deed must be recorded within 15 days of sale if perfection of buyers deed is to relate back to the time that the sale became final).
C. Excessive Damages
Williams argues that the damages award for rent, waste, and lost profit was excessive. The issue of excessive damages may be reviewed on an appeal from a default judgment "if the damages awarded exceed the sum sought in the complaint. [Citations.]" (Steven M. Garber & Associates v. Eskandarian, supra, 150 Cal.App.4th at p. 824.)
In this case, the complaint alleged damages of at least $215,000 for the loss of all benefit from the investment, plus $2,500 per month for unpaid rent from the date of the foreclosure sale, which exceeded the total judgment of $256,639.12. Given that the damages award did not exceed the sum sought in the complaint, and was based on the testimony and evidence submitted by Levi, Williamss "efforts to argue the merits of [his] case are barred substantively by the default judgment, which operates as an admission of the allegations of the complaint, and are also barred procedurally by the entry of a default. [Williams] failed to avail [himself] of the only remedy that could have been of any assistance to [him], which was a successful motion under Code of Civil Procedure section 473 to set aside the default." (Steven M. Garber & Associates v. Eskandarian, supra, 150 Cal.App.4th at p. 824.)
DISPOSITION
The judgment is affirmed. Levi is awarded his costs on appeal.
We concur:
EPSTEIN, P.J.
MANELLA, J.