Opinion
2-4-1955
Robert G. WEIL, Plaintiff and Appellant, v. Harvey O. BARTHEL and Erma Barthel, his wife, and Bank of Davis, a corporation, Defendants and Respondents. Sac. 6398.
James S. Eddy, Sacramento, for appellant. Robert M. Cole, Davis, for respondents.
Robert G. WEIL, Plaintiff and Appellant,
v.
Harvey O. BARTHEL and Erma Barthel, his wife, and Bank of Davis, a corporation, Defendants and Respondents.
Feb. 4, 1955.
Rehearing Granted March 3, 1955. *
James S. Eddy, Sacramento, for appellant.
Robert M. Cole, Davis, for respondents.
Driver & Driver, amici curiae, on behalf of respondents.
EDMONDS, Justice.
Lou B. Rowland 1, the assignee of the interests of C. E. Burton and his wife in a parcel of real property, brought a suit in the superior court of Yolo County entitled 'Complaint to Compel Redemption and to Quiet Title'. Named as defendants are Harvey O. Barthel and his wife and the Bank of Davis. The appeal is from a judgment entered upon an order which sustained a general demurrer to the complaint without leave to amend.
Rowland alleged that in an action 'involving title' to the same property here concerned, by a prior judgment against the Burtons in the same court, the land was ordered to be sold 'as the property of the plaintiff's said assignors in the manner provided by law for sales pursuant to execution upon real property.' The effect of that judgment, it is charged, was to create in the Burtons, as an equitable interest, 'a right to redeem said real property according to law.' The complaint includes the official record of the judgment, but its terms are pleaded only by a statement of their legal effect.
Pursuant to the judgment, it is alleged, the property was sold by the sheriff to the Barthels, who were purchasers at the 'execution sale'. The complaint asserts that, prior to the expiration of the period provided by law for the redemption of real property sold upon execution, the sheriff wrongfully delivered a deed to the property to the Barthels, who have recorded it. Also of record, the complaint continues, is a deed of trust to secure a note payable to the Bank of Davis, which claims an interest in the parcel. The terms of an instrument executed by the Burtons purporting to assign to Rowland their 'right to redeem' the property, are pleaded in haec verba.
The prayer is for a declaration of Rowland's right to redeem the property and for an accounting by the Barthels. Other relief sought by Rowland is an order directing the Barthels to reconvey the property. The court is also asked to retain jurisdiction of the matter pending a redemption, and to quiet Rowland's title against each of the defendants.
The defendants demurred to the complaint, asserting, among other grounds, that it does not state facts sufficient to constitute a cause of action. In their memorandum of points and authorities accompanying the demurrer, the defendants relied, in part, upon the terms of the judgment in the prior action. When the demurrer was sustained without leave to amend, by a memorandum stating the grounds of decision, the trial judge declared that he took judicial notice of the prior judgment. That judgment, he concluded, 'terminated and foreclosed the interest of the plaintiff's assignors in said real property and enjoined and restrained them forever from asserting any right, title and interest therein.' In that circumstance, the court continued, 'it is impossible for him (Rowland) to state a cause of action which will enable him to redeem the real property in controversy.'
Two contentions are made by Rowland as bases for reversing the judgment in the present action. He asserts that it was prejudicial error to take judicial notice of the prior judgment. Another argument is that, even if such notice were proper, the record in the former action may not be construed so as to deprive him of the right to redeem the property.
The fundamental rule is that a demurrer 'reaches only the contents of a pleading and such matters as may be comprehended by the doctrine of judicial notice.' County of Los Angeles v. Security First Nat. Bank, 84 Cal.App.2d 575, 579, 191 P.2d 78, 81. But where matter is judicially noticed, it must be read as a part of the pleading even when the pleading contains an allegation to the contrary. Bell v. Southern Pacific Co., 189 Cal. 421, 425, 208 P. 970; Chavez v. Times-Mirror Co., 185 Cal. 20, 23, 195 P. 666. If the prior judgment and record may be considered and they establish that Rowland's assignors have no right to redeem the property, the contrary allegation of the complaint must be disregarded.
Section 1875 of the Code of Civil Procedure provides: 'Courts take judicial notice of * * * (p)ublic and private official acts of the legislative, executive and judicial departments of this state * * *.' By its terms, the section is sufficiently broad to allow judicial notice to be taken of the record in another action, either in the same court, or in a different court of the state. (See 2 Stanf.L.Rev. 664, 666.)
It has been stated as a general rule, however, that although it is bound to take notice of the record in the action before it, 'the court will not take judicial notice of other actions, not even those pending or concluded in the same court.' Johnston v. Ota, 43 Cal.App.2d 94, 96, 110 P.2d 507, 509. On the other hand, it is firmly established that the rule will not be followed whenever the justice of the case requires a departure from it. City of Los Angeles v. Abbott, 217 Cal. 184, 193, 17 P.2d 993; see Willson v. Security-First Nat. Bank, 21 Cal.2d 705, 711, 134 P.2d 800. An argument is made that the facts of the present case do not bring it within any recognized exception to the general rule, and that judicial notice of the record in the action which resulted in the sale of the property to the Barthels should not be allowed. For the latter proposition reliance is placed upon a statement in Bank of America Nat. Trust & Savings Ass'n v. Button, 23 Cal.App.2d 651, 74 P.2d 81, and cases following that decision, which limits judicial notice of the record in other actions to 'unusual cases where unreasonable hardship would otherwise result.' 23 Cal.App.2d at page 653, 74 P.2d at page 82; see also Johnston v. Ota, supra, 43 Cal.App.2d 97, 110 P.2d 507; Popcorn Equipment Co. v. Page, 92 Cal.App.2d 448, 453, 207 P.2d 647. That statement unduly restricts the circumstances in which the doctrine of judicial notice may apply, and does not accurately reflect the reason either for the doctrine or for the general rule precluding its application to the records of actions other than the one before the court.
The basis for allowing judicial notice to be taken is not alone to avoid hardship but to facilitate the administration of justice by dispensing with the necessity of formal proof in cases where there is no real need for evidence. It is characterized as a 'judicial short cut'. Varcoe v. Lee, 180 Cal. 338, 344, 181 P. 223, 226; Communist Party of United States of America v. Peek, 20 Cal.2d 536, 546, 127 P.2d 889. The same considerations which underlie the rule of judicial notice generally, make it applicable to records in other actions. Normally such records are assumed to be correct and a controversy concerning their existence would be extremely unlikely. See IX Wigmore on Evidence (3rd Ed.1940) 570, § 2579; McCormick, Judicial Notice, 5 Vand.L.Rev. 296, 311-312. But if the court were required, of its own motion, to notice the records of all other actions which might bear upon the one before it, their great numbers would place an intolerable administrative burden upon it. Also if the court were allowed to resort to the record of another action under circumstances denying to the parties an opportunity to argue its legal effect or, if used to establish a fact, to present contrary or explanatory evidence, injustice might result. Accordingly, the rule of preclusion is aptly described as being not of power but of expediency. See City of Los Angeles v. Abbott, supra, 217 Cal. 192-193, 17 P.2d 993.
There should be no objection, however, to allowing the court to notice the contents of the record in another action if it may do so without impairing the procedural rights of the parties. Necessarily, no fixed rule may be made concerning the circumstances in which such notice would be proper. To some degree it is a matter which must rest within the sound discretion of the trial or appellate court. In determining whether such rights are properly safeguarded, the purpose for which such notice is sought to be used and the manner in which the question of its use is presented are important considerations.
In the Bank of America, Johnston, and Popcorn Equipment Co. cases, supra, the purpose of the contemplated use was in abatement or in bar of the action then before the court. To defeat the claims of the Bank of America the appellate court was asked to take judicial notice of a prior pending action. Although the pendency of that action was pleaded, 'the matter was not urged upon the trial court in any way.' 23 Cal.App.2d at page 653, 74 P.2d at page 82. In the Popcorn Equipment Co. case, the record on appeal did not show that the judgment relied upon was before the trial court or that the same issues were involved in both actions. 92 Cal.App.2d at page 452, 207 P.2d 647. The answer in Johnston v. Ota, supra, included a copy of a judgment of dismissal in a prior action. But as stated by the appellate court, '(t)here were no means by which the court could have determined whether the demurrer in the former case was sustained for want of jurisdiction or upon one or more of the special demurrers or whether it was for lack of substance in the complaint to constitute a cause or causes of action. 'Generally, judgments merely of dismissal, whether voluntary or involuntary, are not on the merits, and do not operate as a bar or estoppel in subsequent proceedings involving the same matters, unless it appears that the judgment necessarily involves those matters." 43 Cal.App.2d at pages 98-99, 110 P.2d at page 510.
Res judicata and similar defenses in bar generally are waived by a failure to plead or prove them. Domestic and Foreign Petroleum Co. v. Long, 4 Cal.2d 547, 562, 51 P.2d 73. But even when properly pleaded and proved, a prior judgment may not be conclusive. There still may be questions concerning its legal effect, the identity of the parties and issues, and other matters which require proof. To conclude material issues under the doctrine of res judicata by judicial notice of the record in a former action may deny the parties an opportunity to present such proof. See Rideaux v. Torgrimson, 12 Cal.2d 633, 638, 86 P.2d 826. In most cases courts have declined to take judicial notice of a prior record, urged in bar of an action. Cf. Lake Merced Water Co. v. Cowles, 31 Cal. 214, 215; Stanley v. McElrath, 86 Cal. 449, 25 P. 16, 26 P. 800, 10 L.R.A. 545; Reed v. Cross, 116 Cal. 473, 48 P. 491; Estudillo v. Security Loan, etc., Co., 149 Cal. 556, 87 P. 19; People v. Newell, 192 Cal. 659, 221 P. 622; Rideaux v. Torgrimson, supra; Willson v. Security-First Nat. Bank, supra, 21 Cal.2d 705, 134 P.2d 800; Wolfsen v. Hathaway, 32 Cal.2d 632, 198 P.2d 1; Dillard v. McKnight, 34 Cal.2d 209, 209 P.2d 387, 11 A.L.R.2d 835; Brown v. Brown, 83 Cal.App. 74, 256 P. 595; Olds v. Peebler, 66 Cal.App.2d 76, 151 P.2d 901; but cf. Mason v. Drug, Inc., 31 Cal.App.2d 697, 88 P.2d 929 ; Roberts v. Roberts, 81 Cal.App. 499, 253 P. 1112.
In other situations, however, the rule as to judicial notice of records has been liberally applied. Cf. Southern Pacific R. Co. v. Painter, 113 Cal. 247, 253, 45 P. 320; Sewell v. Johnson, 165 Cal. 762, 774, 134 P. 704; Hammell v. Britton, 19 Cal.2d 72, 75, 119 P.2d 333; Thomas v. Lavery, 125 Cal.App. 666, 669, 14 P.2d 158; Gackstetter v. Market Street Railway Co., 10 Cal.App.2d 713, 716, 52 P.2d 998; Mann v. Mann, 76 Cal.App.2d 32, 41, 172 P.2d 369; Christiana v. Rose, 100 Cal.App.2d 46, 52-53, 222 P.2d 891.
No decision has been found which concerns a situation similar to the one in the present case. However, many of the factors involved here have been considered to be persuasive in a determination of whether judicial notice of the record of another action, has prejudiced the rights of the parties. Here, the judgment in the action to which reference was made is pleaded and identified in Rowland's complaint. It is the basis of his cause of action against the Barthels, cf. Roberts v. Roberts, supra, 81 Cal.App. at page 501, 253 P. 1112; Nordin v. Bank of America, 11 Cal.App.2d 98, 100, 52 P.2d 1018; Mann v. Mann, supra, 76 Cal.App.2d at page 41, 172 P.2d 369; the only question before the trial court was the legal effect of that judgment. Cf. Nordin v. Bank of America, supra, 11 Cal.App.2d at page 100, 52 P.2d 1018. The prior action involved the same parties or those in privity with them, cf. Sewell v. Johnson, supra, 165 Cal. at pages 770-771, 134 P. 704; Mason v. Drug, Inc., supra, 31 Cal.App.2d at pages 700-701, 88 P.2d 929; and the record of it was made available to the trial judge. The legal effect of the judgment was fully considered and argued, see City of Los Angeles v. Abbott, supra, 217 Cal. at page 193, 17 P.2d 993, and the material portions of the record are before the court on this appeal. Cf. People ex rel. Carrillo v. De La Guerra, 24 Cal. 73, 78. In these circumstances, it was not error for the trial judge to consider the record in the prior action to determine the nature of Rowland's rights, and those of his assignors, under the judgment.
That record shows these facts:
The Barthels formerly were owners of a tract of unimproved land. In 1948, they entered into an oral contract, which was superseded by a later oral agreement, to sell the land and an abandoned streetcar on the premises to the Burtons. If the consideration was not paid in cash, the Barthels were to receive a note secured by a purchase money trust deed. The Burtons took possession of the property and began constructing improvements but, although demands were made upon them, they refused to pay the purchase price or to execute a note. In October of that year, a third oral agreement was made, the Burtons agreeing to pay immediately $5,000 for the land and to perform certain other obligations which were incident to the original agreements.
The Burtons continued in possession of the property for more than a year and one-half without paying the agreed purchase price. During that time, they continued to make improvements on the property for which they incurred mechanics' liens and claims of material men in the sum of about $5,700. Despite repeated demands and a tender of a deed to the property by the Barthels, the purchase price remained unpaid. The Burtons resided in one of the buildings on the property without paying rent, and the Barthels were deprived of the crops from several walnut trees during the period of occupancy.
Finally, the Barthels brought suit against the Burtons. Their complaint was in two counts. In the first one, they alleged the execution of the oral agreements, the defendants' breach, their unlawful holding of possession of the premises, and losses assertedly resulting therefrom. The second count asserted that the Barthels were owners of the property in question and that the Burtons claimed a right in the property adverse to them. The prayer was for a cancellation of the oral agreement and a decree adjudging the defendants to be without interest in the property and enjoining them from asserting any claim to it. It was also prayed that the sheriff be commanded to put them into possession of the realty and to evict the Burtons from it. Finally, they sought damages for loss of use of the premises and the crops of the walnut trees.
The trial court found that the Burtons had breached their oral agreement; that 'Plaintiffs are the owners of said property, and Defendants, and anyone acting through them, have no right, title, or interest therein. The Plaintiffs have owned said real property at all times herein mentioned, subject only to said oral agreements.' The Burtons had erected substantial improvements on the property of an uncertain value, the court also found, and liens had accrued against the realty for mechanics' services and material men's claims. The Burtons were in unlawful possession of the premises, the court concluded, and the Barthels had been damaged by loss of use of the property and loss of the walnut crops.
The decree was in several parts. It was adjudged that the interest of the Burtons and of any person claiming through them in the real property or the oral contract 'is hereby terminated and foreclosed'. The Burtons and such other persons were enjoined from asserting 'any right, title or interest in and to said contract or said real property, which arose before the date of this Decree.' It was further decreed that the Barthels were owners of the real property in fee simple subject to its sale by order of the court 'in the manner provided by law for sale pursuant to execution upon real property'. By other provisions of the decree, the proceeds of such a sale were to be distributed to certain persons until exhausted.
Upon execution of a deed after the sale, the decree continued, title was to be quieted in the purchaser from all claims by either the Barthels or the Burtons, or persons acting through them. The court also enjoined them from asserting any claim or demand arising prior to the date of the decree. The decree declared that 'all equity of redemption of any of the aforesaid persons is hereby foreclosed.'
No appeal was taken from the decree and, at the time of the trial of this action, it had become final. Pursuant to the decree, the property was sold at public auction to the Barthels and the proceeds from the sale distributed as ordered by the court. No claim is made by the Barthels that they have any interest in the property other than that derived from their purchase at the sale, and it is undisputed that Rowland's interest is limited to the rights, if any, remaining with his assignors after the prior judgment.
Briefly stated, the legal relationship of the Barthels and the Burtons before the earlier action was that of vendors and vendees under an executory contract for the sale of real property with title in the vendors, possession in the vendees, and the vendees in default under the contract. Ordinarily, in that situation several remedies are available to a vendor. See Comment, 27 Calif.L.Rev. 583. Apparently the Barthels sought a combination of remedies, including rescission, quiet title, unlawful detainer, and damages.
Rowland's position is that the Barthels obtained a decree of foreclosure by sale. In such a proceeding, Rowland argues, the defaulting vendee is entitled to a statutory right of redemption pursuant to section 700a of the Code of Civil Procedure. 2 The Barthels contend that decree quieted the vendors' title or, in the alternative, granted relief in the nature of a 'strict foreclosure' according to Keller v. Lewis, 53 Cal. 113, and similar cases. But even if the decree be one directing a foreclosure by sale, the argument continues, there is no statutory right of redemption in such a proceeding, and the trial court was not required to allow the vendees a period in which to redeem the land.
The decree may not reasonably be construed as quieting title in the vendors. Instead, it purports to quiet title in the purchaser at the subsequent public sale. It is unnecessary to decide whether, as an abstract proposition, the court may quiet title in one not a party to the action and whose identity is unknown. Here the person challenging the purchasers' title claims through a party to the action and asserts no right other than that remaining in such party after the decree. The decree expressly enjoins both vendors and vendees from claiming rights in the property arising prior to its effective date; and although the vendors are declared to be 'owners in fee simple', such ownership is made expressly subject to the 'execution sale' which was to follow.
In framing a decree effecting a strict foreclosure, the court ordinarily fixes a time within which the defaulting vendee should pay the amounts due upon the contract or be foreclosed from asserting any rights under it. See Cross v. Mayo, 167 Cal. 594, 605, 140 P. 283; Kornblum v. Arthurs, 154 Cal. 246, 249, 97 P. 420; Vanneman, Strict Foreclosure on Land Contracts, 14 Minn.L.Rev. 342, 353 et seq. Although the period to be allowed the vendee in exercising his equity of redeeming the rights under the contract lies largely within the equitable discretion of the trial court, Cross v. Mayo, supra, 167 Cal. at page 606, 140 P. 283; Los Angeles Auto Tractor Co. v. Superior Court, 94 Cal.App. 433, 440, 271 P. 363; Veterans' Welfare Board of California v. Burt, 4 Cal.App.2d 659, 662, 41 P.2d 587, such a period is a characteristic of that type of proceeding. Here, however, it does not appear that a strict foreclosure was contemplated. There was no period of grace to allow the vendees to correct their default under the contract, and it does not appear that a foreclosure of the vendees' rights was intended to inure to the benefit of the vendors. Instead, as stated by the trial judge in his memorandum opinion, the equities of all parties were to be preserved, including those of the lien claimants and that of the vendees in the improvements made upon the property. Obviously the trial court determined that the only feasible method of accomplishing that result was by a sale of the property. The only reasonable conclusion is that the remedy provided was a foreclosure by sale.
The decisive question is whether the enforcement of the vendor's rights in an executory land sales contract by a foreclosure sale allows a defaulting vendee a statutory period in which to redeem the property. In this connection, Rowland bases his rights upon what he asserts to be the proper construction of the term 'equity of redemption', as used in the decree, and the effect of the purported foreclosure of it. That term, which is generally applied to mortgages and similar transactions, has reference to the mortgagor's right to avoid being divested of his property after a default, by payment of the mortgage debt; the right is terminated by a judicial foreclosure or foreclosure sale. See II Glenn on Mortgages (1943) 1092-1093, § 227. But as Rowland correctly maintains, if a right to redeem the property after a foreclosure sale exists by force of statute, it could not be concluded by a decree purporting to extinguish it, cf. Anthony v. Janssen, 183 Cal. 329, 334, 191 P. 538, or by a premature delivery of a deed by a sheriff or commissioner. Cf. Bessinger v. Grotz, 66 Cal.App.2d 947, 949, 153 P.2d 369. The purpose of the decree was to terminate all rights existing prior to the sale; there was no necessity to mention any redemption rights which might arise as a result of the sale. Anthony v. Janssen, supra, 183 Cal. at pages 334-335, 191 P. 538.
It is generally held that there may be no redemption of property from a judicial sale to enforce rights in it in the absence of a statute specifically creating a right to redeem. See 31 Am.Jur., Judicial Sales, § 222, p. 521. In jurisdictions which have no redemption statute applicable to a sale upon foreclosure of the rights in land sales contracts, it is held that the vendee may not redeem the property in the absence of a specific provision in the decree allowing him to do so. United States Plywood Corp. v. Alexander, 180 Or. 174, 175 P.2d 460, 462; see 66 C.J., Vendor and Purchaser, § 1309, p. 1337.
No California decision squarely determines whether a foreclosure sale to enforce the vendor's rights allows a defaulting vendee a statutory period of redemption. In other jurisdictions, there is a conflict of authority. The statutes of some states which grant a period of redemption after an execution sale and upon the foreclosure of a mortgage, have been construed as inapplicable to the foreclosure of a vendor's lien. Standley v. Mason, 148 Ark. 141, 229 S.W. 3, 4; Priddy & Chambers v. Smith, 106 Ark. 79, 152 S.W. 1028, 1029, 44 L.R.A.,N.S., 285; Drysdale v. P. J. Christy Land Co., 248 Mich. 184, 226 N.W. 882; Security Savings & Trust Co. v. Mackenzie, 33 Or. 209, 52 P. 1046, 1047; cf. Beason v. Porterfield, 40 Tenn. 363. Other cases emphasize the similarity which exists between a transaction in which the vendor retains legal title as security and the ordinary mortgage. See Brannan v. Adams, 202 Ala. 442, 80 So. 826, 828; Crabtree v. Davis, 237 Ala. 264, 186 So. 734, 736; Hill v. Preston, 119 Tex. 522, 34 S.W.2d 780, 784; see also Sparks v. Hess, 15 Cal. 186, 194. Upon that reasoning, a defaulting vendee has been granted a statutory right of redemption under a statute authorizing such a right upon foreclosure of a mortgage. Brannan v. Adams, supra, 80 So. at page 828.
Arguing that section 700a of the Code of Civil Procedure should be construed to include sales upon foreclosure of rights in real property, Rowland points to the broad language of the statute, which provides that '(i)n all other cases (than sales of personal property and sales of real property in which the estate is less than a leasehold of two years' unexpired term) the property is subject to redemption.' To construe it as not applicable to the foreclosure of a vendor's lien, he contends, would be to disregard its plain terms and also to authorize a sale in such a proceeding with no safeguard that the property should bring a fair price. In all other kinds of judicial sales, the argument continues, the debtor is entitled to redeem the property or a confirmation of the sale by the court is required.
As the Barthels read the statute, it applies only to an execution sale to enforce a judgment for damages and does not include one made under any other authority. To require the purchaser at such a sale to take the property subject to redemption, they argue, tends to lower the amount bid. They reason that with the knowledge that the property might be redeemed, a purchaser would not pay a fair price for it. In such circumstances, it is said, only the creditor who can bid the amount owed to him will be likely to purchase the property at such a sale. A further contention is that the rights of the parties to the property being purely equitable should be enforced according to the equitable discretion of the trial court, including the power to have the property sold without redemption.
Section 700a is a part of a title of the Code of Civil Procedure designated 'Execution of Judgment in Civil Actions', and is included in a chapter entitled 'Execution'. Pt. 2, Tit. 9, Ct. 1, Code Civ.Proc. Its wording is very similar to that of former section 229 of the Practice Act, Stats. 1851, p. 51 et seq., which also was included in a chapter dealing with 'The Execution' and in a title relating to 'Execution of the Judgment in Civil Actions.' Tit. VII, Ch. I. In Kent & Cahoon v. Laffan, 2 Cal. 595, the problem was whether section 229 allowed a right of redemption after the foreclosure of a mortgage. The court accepted the argument that the section applied to 'all other cases' and was part of an act which included provisions both for execution sales and the foreclosure of mortgages.
In a subsequent case, which also concerned the right to redeem after a foreclosure of a mortgage, the Kent decision was criticized by the court in an opinion by Chief Justice Field: 'It is very generally conceded by the profession that the decision was based upon an erroneous construction of the statute; but, admitting this to be true, it is too late to interfere with it; rights of property of vast value have grown up under the decision which no Court is at liberty at this day to disturb.' Gross v. Fowler, 21 Cal. 392, 395. Specific statutory provision now is made for the redemption of real property after the foreclosure of a mortgage or a deed of trust. Code Civ.Proc. §§ 725a, 346.
In few cases have sections 229 and 700a been considered in connection with proceedings other than those arising out of an execution to enforce a civil judgment or an action to foreclose a mortgage or trust deed. Although not a direct holding, it was strongly suggested in Anthony v. Janssen, supra, that a right to redeem real property arises after a sale to foreclose a mechanic's lien. See 183 Cal. 334, 191 P. 538. Two cases involving the foreclosure of a vendor's lien, without directly deciding the question, assumed a statutory right in the vendee to redeem the property from the foreclosure sale. See Tilley v. Bonney, 123 Cal. 118, 120, 55 P. 798; Brown v. Kahn, 176 Cal. 159, 164, 167 P. 869. Although section 700a is susceptible of a construction limiting it to executions and mortgage or trust deed foreclosures, the practice has been to construe it more broadly. Such a construction is in keeping with the requirement that redemption statutes be liberally construed in favor of the right. Lobingier v. Skinner, 93 Cal.App. 695, 700, 270 P. 394; Bender v. King, C.C., 111 F. 60, 65. That conclusion does not mean that there is a right of redemption of property from every judicial sale. The present action concerns solely the rights arising out of the foreclosure sale to enforce a vendor's lien; the rights of the parties in other situations will be determined when they are presented for decision.
This result does not hamper a court of equity in disposing of the parties' interests under a contract for the sale of land. Sufficent remedies are available to allow a final determination of the various interests in the real property, if that course is deemed desirable. Also, from a practical standpoint the debtor's opportunity to obtain a fair bid for the property will be improved. As has been pointed out, generally the creditor is the purchaser at the foreclosure sale, and with the knowledge that the property may be redeemed for the price paid at that sale, he more likely will bid a fair price in order to avoid being divested of it at a later time. See Durfee and Doddridge, Redemption from Foreclosure Sale The Uniform Mortgage Act, 23 Mich.L.Rev. 825, 838-841.
It does not follow, however, that the general demurrer should not have been sustained. The complaint is deficient in failing to allege a compliance with sections 702 (tender of amount of purchase price), and 705 (production of certain enumerated documents to the officer or person from whom the redemption seeks to redeem) of the Code of Civil Procedure. These defects might be cured by amendment, cf. Photochart v. Del Riccio, 94 Cal.App.2d 315, 319, 210 P.2d 547; Pulvermacher v. Los Angeles Co-Ordinating Committee, 61 Cal.App.2d 704, 711, 143 P.2d 974, and the ruling by which the demurrer was sustained without leave to amend amounted to an abuse of discretion.
The judgment is reversed with directions to permit Weil to amend his complaint if he be so advised.
GIBSON, C. J., and SHENK, TRAYNOR, SCHAUER, and SPENCE, JJ., concur.
CARTER, Justice.
I concur in the judgment of reversal. But I disagree with the holding in the majority opinion that it was not prejudicial error for the trial court to take judicial notice of the record in the former action.
In the case at bar, plaintiff's complaint was entitled 'Complaint to Compel Redemption and to Quiet Title.' It was there alleged that '* * * upon the 18th day of March 1950 a judgement (sic) and decree of the Superior Court of the State of California in and for the County of Yolo was entered against certain persons being C. E. Burton and Helen Burton, his wife, the same being plaintiff's assignors; that said judgement (sic) and decree was pursuant to an action involving title to the following described real property, and was entered in the Official Records of the said Superior Court in Judgement (sic) Book 'R' at page 92; * * *.' The property was then specifically described and it was alleged 'That said judgement (sic) and decree provided that said real property be sold as the property of plaintiff's said assignors in the manner provided by law for sales pursuant to execution upon real property; that said judgment (sic) and decree created in plaintiff's said assignors an equitable interest in said real property, to wit: a right to redeem said real property according to law; * * *.' It was further alleged that the property was sold by the sheriff of Yolo County in the manner provided for by law; that Harvey O. and Erma Barthel were the purchasers at said execution sale; and that 'prior to the expiration of the period of time provided by law for redemption of sales or real property upon execution, the said Sheriff of Yolo County upon said execution sale did wrongfully make and deliver a deed of said real property to the defendants Harvey O. Barthel and Erma Barthel, his wife; * * *'; that said deed had been recorded and constituted a cloud upon plaintiff's equitable title. It was alleged that 'the plaintiff's said assignors, desiring to redeem, the said real property from the said sale upon execution, did within one year of the said 14th day of April 1950, demand in writing of the defendants * * * a written and verified statement of the amounts of said rents, and profits; that said defendants have for a period of more than one month from and after said demand, failed and refused to give plaintiff's said assignors such a statement or any statement whatever, and do so continue to fail and refuse; * * *.
'That the plaintiff is informed and believes * * * that the defendants hereto deny the right of the plaintiff to redeem said real property from said sale upon excution; * * *.'
Plaintiff's assignment from C. E. and Helen Burton of their 'right to redeem' is set forth in full. The prayer is for an order declaring plaintiff's right to redeem; for an accounting by the defendants of the rents and profits received and for the amounts expended by them for taxes, insurance, repairs and the like; and for a 'further hearing wherein plaintiff may redeem said real property from the defendants. * * *'; and for an order directing the defendants to convey legal title to plaintiff upon redemption.
Defendants demurred on the grounds that the complaint did not state a cause of action; that it was ambiguous in that it was not possible to 'ascertain what the provisions are of the degree which is referred to in Paragraph 2 of Plaintiff's Complaint'; that the complaint was unintelligible and uncertain; and that there was another action pending by the same parties for the same cause. The trial court sustained the demurrer without leave to amend upon the ground, set forth in its order, that it took judicial notice of the prior action and that the judgment in the prior case (11,463) had cut off any right of redemption existing in plaintiff's assignors and that it was 'impossible for (plaintiff) to state a cause of action which will enable him to redeem the real property in controversy.'
We said in Wolfsen v. Hathaway, 32 Cal.2d 632, 638, 198 P.2d 1, 5, that 'It has been uniformly held that in the absence of either pleading or proof of a former judgment upon litigated issues, the defense of res judicata is thereby waived in the subsequent action. 15 Cal.Jur., sec. 233, p. 214; 50 C.J.S., Judgments, § 822, p. 389; Domestic and Foreign Petroleum Co., Ltd., v. Long, 4 Cal.2d 547, 562, 51 P.2d 73; Rideaux v. Torgrimson, 12 Cal.2d 633, 638, 86 P.2d 826; Spitzer v. Superior Court, 74 Cal.App. 494, 498, 241 P. 270. Nor can respondents avail themselves of the principle of judicial notice in support of their present plea of the former adjudication. It is the general rule that 'the court will not take judicial notice of other actions, not even those pending or concluded in the same court.' (Citations.) The authority of a court to take judicial notice of its own records 'is limited to proceedings in the same case. " In Willson v. Security-First Nat. Bk., 21 Cal.2d 705, 711, 134 P.2d 800, 804, it was said: 'To hold that a court may generally take judicial notice of another proceeding with a view to determining whether it is a bar to the pending suit, would do away with the rule that the defense of res judicata may not be raised by demurrer unless the facts appear in the complaint, in those cases where the judgment relied on as a bar was rendered by the same court.' The general rule is apparently subject to an exception. In Christiana v. Rose, 100 Cal.App.2d 46, 52-53, 222 P.2d 891, 895, the court said: 'It has been held that, in the interests of justice, the court may take judicial notice of proceedings in other cases in the same court. Willson v. Security-First Nat. Bk., 21 Cal.2d 705, 711, 134 P.2d 800; Calhoun v. Calhoun, 81 Cal.App.2d 297, 302, 183 P.2d 922. In the instant case the appellant in his complaint referred to the wrongful death action and specifically alleged the date of the case, its file number in the clerk's office, and the date the appellate court affirmed. Under such circumstances, there can be no doubt but that this court may look at and consider the records in the wrongful death action. See Popcorn Equipment Co. v. Page, 92 Cal.App.2d 448, 453, 207 P.2d 647.' (Emphasis added.) The Calhoun case involved taking judicial notice of a former appeal in the same court between the same parties; the Christiana case involved another case which had been appealed; the Popcorn Equipment Co. case pointed out that 'Only in exceptional cases will the court depart from the general rule, for example in order to avoid a resulting unreasonable hardship. Under certain circumstances the Supreme Court will take judicial notice of the records of that court, although not pleaded in the trial court, when brought to the court's attention in some appropriate manner.' Popcorn Equipment Co. v. Page, 92 Cal.App.2d 448, 453, 207 P.2d 647, 651. In Bank of America, Nat. Trust & Savings Ass'n v. Button, 23 Cal.App.2d 651, at page 653, 74 P.2d 81, it was said: 'It is the general rule that courts will not take judicial notice of other actions even though pending in the same court. In re Estate of Fulton, 8 Cal.App.2d 423, 48 P.2d 120; Brown v. Brown, 83 Cal.App. 74, 256 P. 595; Ralphs v. Hensler, 97 Cal. 296, 32 P. 243. This rule has been made subject to exception, in the discretion of the court. Sewell v. Johnson, 165 Cal. 762, 134 P. 704, Ann.Cas.1915B, 645; City of Los Angeles v. Abbott, 217 Cal. 184, 17 P.2d 993. The exception is only invoked in unusual cases where unreasonable hardship would otherwise result. This does not appear to us to be such a case.' See, also, 10 Cal.Jur., § 52; 5 Cal.Jur.Supp., § 52. In Johnston v. Ota, 43 Cal.App.2d 94, 97, 110 P.2d 507, 509, the court stated the general rule and said:
'The only exception to the rule is where unreasonable hardship would result. Bank of America (Nat. Trust & Savings Ass'n) v. Button, supra. Although the judgment pleaded was an adjudication of the matter at bar and may have been rendered by the same court upon the same cause of action, and although such judgment and its supporting papers may be on file in the same court still the party pleading such prior adjudication carried the burden of establishing his plea which can be done only by actual proof of its records. Glaze v. Bogle, supra (105 Ga. 295, 31 S.E. 169).
'It must appear either upon the face of the record or be shown by extrinsic evidence that the precise issue raised in the second action was determined in the former suit. * * *
'There was no circumstance in the instant case that would have justified the court's taking judicial notice of the judgment pleaded or of the pleadings which preceded it. * * *' (Emphasis added.)
It seems clear in the case at bar that it was error for the trial court to take judicial notice of the prior action in ruling upon defendants' demurrer inasmuch as there is nothing to show that any exceptional circumstances existed.
I have set forth the manner in which plaintiff referred to the judgment in the prior action; defendants demurred on the ground that 'another action (was) pending by the same parties for the same cause' and noted in their Memorandum of Points and Authorities that 'The Plaintiff should have pled in his complaint the decree in case No. 11463 in haec verba, rather than using bald legal conclusions. For that reason, the Complaint does not state facts sufficient to constitute a cause of action, and is ambiguous, unintelligible and uncertain.' Neither of the parties introduced in any way the record of the prior action (11463) other than as above pointed out. In the majority opinion it is said 'and the record of it (the former action) was made available to the trial judge.' How was it made available? The record does not disclose. It is also said 'The legal effect of the judgment was fully considered and argued * * *.' When and where? And by whom? Again I say the record does not disclose. This appeal is from a judgment entered upon on order which sustained a general demurrer to the complaint without leave to amend. And the Order sustaining the demurrer to the complaint shows clearly and without equivocation that the trial court's reason for so acting was because it took 'judicial notice' of the former action although no portion of the record in said action was before the court in this action. This statement is also found in the majority opinion: '* * * and the material portions of the record are before the court on this appeal.' The Clerk's Transcript in this action contains a list of the 'requested documents' from the file in the former action, but none of these documents was properly before the trial court in this action. We here have no way of knowing what other documents in the former action might not have been requested which would be relevant in this action since they were not before the trial court. In Olwell v. Hopkins, 28 Cal.2d 147, 150, 168 P.2d 972, 974, we said: 'At the hearing upon their motion to dismiss the present action, defendants introduced in evidence the record of the first action.' (Emphasis added.) We also said, 28 Cal.2d at page 153, 168 P.2d at page 976, 'Plaintiffs contend that under section 597 of the Code of Civil Procedure they were entitled to a trial of the issue of res judicata. That section provides: 'When the answer pleads that the action is barred * * * by a prior judgment, * * * or sets up any other defense not involving the merits of the plaintiff's cause of action but constituting a bar or ground of abatement to the prosecution thereof, the court may, upon the motion of either party, proceed to the trial of such special defense * * * before the trial of any other issue in the case, and if the decision * * * upon any special defense so tried * * * is in favor of the defendant pleading the same, judgment for such defendant shall thereupon be entered and no trial of other issues in the action shall be had * * *.' Although the defense of res judicata in the present action was raised by demurrer and motion to dismiss and not by answer, it was tried at the hearing upon that motion as it would have been tried under the provisions of section 597. The evidence at a trial under that section would be the record of the former action, which was introduced at the hearing upon defendants' motion to dismiss, and since that trial would take place 'before the trial of any other issue,' plaintiffs would find themselves in exactly the same position as they are now.' This is a different situation from the one at bar where the trial court, without benefit of pleading, or proof on a motion to dismiss, took judicial notice of its records in a prior action. The correct rule is the one stated in Johnston v. Ota, supra, 43 Cal.App.2d 94, 97, 110 P.2d 507, 509, that 'Although the judgment pleaded was an adjudication of the matter at bar and may have been rendered by the same court upon the same cause of action, and although such judgment and its supporting papers may be on file in the same court, still the party pleading such prior adjudication carried the burden of establishing his plea which can be done only by actual proof of its records.' (Emphasis added.)
A majority of this court here approves the action of the trial court in taking judicial notice of the record in the former action while at the same time admitting that the court should not be permitted to notice judicially its own records if, to do so, would impair the procedural rights of the parties, but the majority here fails to recognize that in condoning the judicial notice taken by the trial court and construing the holding there as the majority has done, the defendants' 'absolute defense' is non-existent and, contrary to the majority opinion, prejudice to a party results thereby. It should also be noted that although the majority opinion asserts that neither party attacks the validity of the former judgment, this court itself does so in its construction of that judgment. The facts as set forth in the majority opinion are all garnered from the former record. The judgment there is scrutinized and, as pointed out by the majority opinion, 'The decree declared that 'all equity of redemption of any of the aforesaid persons is hereby foreclosed. " It is admitted that the judgment has long since become final, but despite that admission the majority finds that the right of redemption could not be so cut off and plaintiff is given permission to amend his complaint if he be so advised. We said in the Olwell case, supra, that the defense of res judicata could be raised by demurrer, rather than by answer, since 'the record of the former action makes it clear that plaintiffs cannot overcome that defense.' Emphasis added; Olwell v. Hopkins, supra, 28 Cal.2d 147, 153, 168 P.2d 972, 976. The situation is exactly reversed here.
I agree with the holding that plaintiff should be granted leave to amend his complaint so as to state a cause of action if that be possible. The complaint was fatally deficient so far as the allegations concerning compliance with the provisions of sections 702, 705 and 707 of the Code of Civil Procedure are concerned and plaintiff should be permitted to allege his compliance therewith if he be so advised.
I would reverse the judgment because of the prejudicial error committed by the trial court in taking judicial notice of the record in the prior case, and because of the abuse of discretion in sustaining defendants' demurrer to plaintiff's complaint without leave to amend. --------------- * Opinion vacated 291 P.2d 30. 1 After the argument of this case, Robert G. Weil, by order of the superior court, was substituted as party-plaintiff for Rowland. Similarly, Weil has been substituted for Rowland us party-appellant. 2 'Sales of personal property, and of real property, when the estate therein is less than a leasehold of two years' unexpired term, are absolute. In all other cases the property is subject to redemption, as provided in this chapter.'