Elledge v. Culbertson
Filed 4/4/06 Elledge v. Culbertson CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
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| KENNETH A. ELLEDGE et al., Plaintiffs, Cross-Defendants and Respondents, v. DELBERT CULBERTSON et al., Defendants, Cross-Defendants and Appellants; MIKI MARVEL, Defendant, Cross-Complainant and Respondent. |
C049449
(Super. Ct. No. CV023422)
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Defendants/cross-defendants Delbert, Susan, and Adam Culbertson appeal from the trial court's order denying their motion to set aside a default judgment (Code Civ. Proc., § 473, (section 473)) as untimely.[1] We shall affirm the order, but for a different reason.
FACTS
Delbert and Susan, a divorced couple who owned a parcel of land in San Joaquin County, undertook to sell it to Kenneth and Gayle Elledge. After the parties entered into a purchase contract in August 2003, the title company notified them of a cloud on title: Miki Marvel, Adam's ex-wife, having obtained a tort judgment against him in November 2002, had filed a judgment lien against his purported interest in the parcel.[2]
On March 30, 2004, the Elledges filed suit for specific performance of the purchase contract, naming Delbert, Susan, Adam, and Marvel as defendants.
On May 17, 2004, Delbert and Susan obtained an order in the family court by stipulation that declared Adam's purported interest void ab initio and any judgment against it also void. It does not appear from the record that Marvel received notice of the parties' stipulation or an opportunity to litigate the propriety of the order, which was evidently meant to frustrate her judgment lien.[3]
After answering the Elledges' complaint on May 18, 2004, Marvel filed a cross-complaint on July 6, 2004, to execute on her judgment lien. She named Delbert, Susan, Adam, and the Elledges as cross-defendants.
Delbert, Susan, and Adam failed to respond to the complaint and the cross-complaint. Delbert's and Susan's defaults on the complaint were entered in May 2004, Adam's in August 2004. Delbert's, Susan's, and Adam's defaults to the cross-complaint were also entered in August 2004.
The trial court entered a default judgment in favor of Marvel and the Elledges against Delbert, Susan, and Adam on November 12, 2004. The judgment directed the sale of the real property to the Elledges, awarded a share of the proceeds to Marvel to satisfy her lien, and dismissed the Elledges' complaint as to Marvel and Marvel's cross-complaint as to the Elledges with prejudice.
Deeming the litigation, including the cross-complaint, to â€
