Gregg v. Cloney

91 Cal. App. 4th 429, 2001 Cal. Daily Op. Serv. 6925, 110 Cal. Rptr. 2d 615, 2001 Daily Journal DAR 8477, 2001 Cal. App. LEXIS 627
CourtCalifornia Court of Appeal
DecidedAugust 9, 2001
DocketNo. A093238
StatusPublished
Cited by41 cases

This text of 91 Cal. App. 4th 429 (Gregg v. Cloney) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gregg v. Cloney, 91 Cal. App. 4th 429, 2001 Cal. Daily Op. Serv. 6925, 110 Cal. Rptr. 2d 615, 2001 Daily Journal DAR 8477, 2001 Cal. App. LEXIS 627 (Cal. Ct. App. 2001).

Opinion

Opinion

McGUINESS, P. J.

In this case, the trial court found that a dissolution judgment properly recorded by appellant Dana J. Gregg and duly indexed under the name of the judgment debtor, appellant’s former spouse James Michael Cloney, was not constructive notice to respondent Lloyd A. Launer as the subsequent purchaser of real property from that same judgment debtor holding title to the subject property under the name “Mike Cloney,” even though respondent’s escrow agent acquired knowledge prior to close of escrow that James Michael Cloney and Mike Cloney were and are one and the same person. Thus, the question presented in this appeal is whether a valid judgment lien, properly recorded against a judgment debtor under one name, imparts constructive notice to a subsequent purchaser of real property from the same judgment debtor using a different name, where the purchaser’s escrow agent—acting within the course and scope of her duties—gains actual knowledge of both of the names used by the seller. We conclude that it does, and that the trial court erred as a matter of law in determining otherwise. We therefore reverse the order quashing appellant’s levy on the subject real property and denying her application for an order of sale thereof.

Factual and Procedural Background

The facts are not in dispute. The marriage of James Michael Cloney (hereafter Cloney) and appellant Dana J. Gregg was terminated effective September 21, 1984, by a judgment of dissolution filed on September 26, 1984. The dissolution judgment ordered Cloney to pay appellant $100 per month in child support, plus $200 per month as spousal support for a period of three years. As of September 30, 1999, the total arrearages of child and spousal support owed by Cloney to appellant, including accrued interest, amounted to $17,279.61.

[433]*433At some point after his divorce from appellant, Cloney remarried. In April 1991, Cloney had title to a parcel of real property (the Property) located at 3222 High Street in the City of Eureka conveyed to himself and his new wife in joint tenancy, using the name “Mike” Cloney rather than his full name of James Michael Cloney.

On June 30, 1997, appellant recorded the dissolution judgment in the Humboldt County Recorder’s Office at 1997-15460-7 of the Official Records of the County of Humboldt. The dissolution judgment was properly indexed and cross-indexed under the names of the two parties to the judgment as “James Michael Cloney” and “Dana J. Cloney.”

Prior to the end of July 1999, Cloney and his second wife entered into a purchase and sale agreement to sell respondent the Property. Respondent employed First American Title Company (First American), located in Eureka, California, as his title insurance company. The parties to the purchase and sale transaction (the Transaction) also agreed to have First American act as the escrow agent for the transfer of the Property.

The escrow officer assigned to the Transaction was Stacey Holcomb. On August 5, 1999, prior to the close of escrow, Cloney went to the First American office in Fortuna to sign papers in connection with the Transaction. In connection with executing the necessary documents, Holcomb asked Cloney for his identification. Cloney produced his driver’s license, identifying him as “James Michael Cloney.” Holcomb, who was also a notary public, had Cloney sign her notary book to verify his signature. At Holcomb’s direction, Cloney signed the book “Mike Cloney,” because that was the name appearing on the title to the Property. Having examined Cloney’s driver’s license to verify that the picture was the same as that of the gentleman signing the escrow documents, Holcomb made a notation in her notary book that the signer was listed on his driver’s license as “James Michael Cloney.” On the grant deed transmitting the Property to respondent, dated July 30, 1999, Cloney also signed his name as “Mike Cloney,” rather than his full name of James Michael Cloney. Holcomb did not report the discrepancy between the name on Cloney’s title and the name on his driver’s license, either to First American’s title department or to respondent.

Escrow on the Transaction closed on August 27, 1999. On that date, First American recorded the deed transferring title in the subject Property from “Mike Cloney” and his wife to respondent. First American issued a policy of title insurance to respondent. First American’s title insurance policy said nothing about appellant’s judgment lien on the Property, and appellant was not paid anything on the judgment lien from the escrow.

[434]*434On October 21, 1999, after appellant discovered the subject Property had been sold without her lien being paid thereon, she applied for a writ of execution. Subsequently, on February 7, 2000, appellant filed an application for an order to sell the Property pursuant to Code of Civil Procedure section 704.750.1 In response, respondent filed a claim of exemption from enforcement of judgment, a motion to quash the levy, and a petition for an evidentiary hearing. Pursuant to the trial court’s determination that there was an issue of fact as to whether respondent was a bona fide purchaser for value without notice, the matter was set for court trial.

At the hearing, Cloney identified himself under oath as “James Michael Cloney,” and acknowledged he was both the judgment debtor identified as James Michael Cloney on the dissolution judgment recorded by appellant, and the person identified as “Mike Cloney” on the pertinent deeds to the Property. Cloney testified that prior to closing escrow on the Property, he showed the escrow officer his driver’s license “in order to get the check”; and that the name stated on his driver’s license was “James Michael Cloney.” Cloney also acknowledged that, under the name of James Michael Cloney, he had previously transferred at least one other parcel of real property to his second wife, who had then retransferred the property jointly to herself and Cloney under the name of “Mike” Cloney.

In her testimony, Holcomb testified she performed her duties as a notary public at the offices of First American while employed there; her notary book was provided to her by First American; and she was not paid separately by First American for her duties as a notary public as distinguished from her employment with First American. Asked whether respondent had the right to see the portions of her notary book pertaining to the Transaction, Holcomb opined that he did not. She stated her belief that her “notary journal is confidential,” and she “would not show it to anybody.” Holcomb testified she was not familiar with the provisions of Government Code section 8206, subdivision (c).2

Respondent testified that he relied on his title company, First American, to search the county records to determine if there were any liens or encumbrances upon the Property. Prior to the close of escrow, no one informed him that James Michael Cloney and “Mike” Cloney were the same person, although he was aware that “Mike” is a common nickname for Michael.

[435]*435James Cammack, manager of title operations at Humboldt Land Title Company for 13 years, was called by appellant as an expert witness on title insurance matters. Cammack testified that whenever there is a question about whether a judgment applies to a given seller, or about the seller’s full legal name, the standards of the industry require that inquiry be made of the seller as to his or her identity.

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91 Cal. App. 4th 429, 2001 Cal. Daily Op. Serv. 6925, 110 Cal. Rptr. 2d 615, 2001 Daily Journal DAR 8477, 2001 Cal. App. LEXIS 627, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gregg-v-cloney-calctapp-2001.