Wolford v. Neustadter

KNIGHT, J.

—Carlos Solorzano, one of the defendants named in the above action, appeals from an order denying his motion to dissolve an attachment. The other parties defendant, Bernard Neustadter, Elsa B. Neustadter and City Title Insurance Company, a corporation, are not affected by the attachment proceeding.

The action is for injunctive relief and damages, and is based on the following allegations: That the plaintiffs Joseph and Ray Wolford, and the defendants Bernard and Elsa B. Neustadter, are the owners in fee simple of adjoining real properties in San Francisco; that a two-story concrete building on the Neustadter property was negligently constructed, in that the wall thereof adjacent to plaintiffs’ property was built out of plumb; that said wall has since leaned against the wooden building on plaintiffs’ property so that the pressure therefrom has thrown the walls of plaintiffs’ building out of plumb, causing the floors to buckle, the windows and doors to jam, the plaster to crack and fall, etc.; that the

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encroachment complained of constitutes a dangerous nuisance and has damaged plaintiffs’ premises in the sum of $5,000. Continuing, it is alleged that the Neustadter property is encumbered with a deed of trust, naming the City Title Insurance Company as trustee and appellant as beneficiary, which was given by the Neustadters to secure the payment to appellant of the sum of $12,000. The prayer of the complaint is that the alleged nuisance be abated and that plaintiffs be awarded damages against all defendants in the sum of $5,000.

At the time of the commencement of the action appellant was a resident of Costa Rica, Central America, and under the authority of subdivision 3 of section 537 of the Code of Civil Procedure plaintiffs obtained a writ of attachment against his property, by virtue of which they caused to be garnisheed certain moneys due him from the Neustadters; whereupon appellant appeared specially in the action for the purpose of moving for a dissolution of the attachment ; and his motion in that behalf being denied he took this appeal.

Subdivision 3 of said section 537 provides that a plaintiff “may have the property of the defendant attached . . . 3. In an action against a defendant, not residing in this state, ... to recover a sum of money as damages, arising from an injury to property in this state, in consequence of negligence, fraud, or other wrongful act.” The obvious purpose of said code provision is to secure the payment of any judgment for damages a plaintiff might obtain against a nonresident of the state in an action for injury to property in this state; and in this connection it is appellant’s contention that while his legal status in relation to the Neustadter property is such that he was properly made a party defendant to the action, the mere fact that he is named as beneficiary in a deed of trust given to secure the payment to him of a loan does not vest in him any such interest in the property covered by the deed of trust as will render him personally liable in damages for an injury to plaintiffs’ property caused by the maintenance of a nuisance on the encumbered property by the owner of said property while in the sole possession thereof, and that consequently attachment proceedings under subdivision 3 of said section 537 are not available against him.