Hamacher v. People

California Court of Appeal Mar 19, 1963 No. Civ. No. 26528Published

Before: Burke

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Holding. The court held that the plaintiff's allegations of fraudulent concealment constituted intrinsic rather than extrinsic fraud, and therefore the judgment was immune from collateral attack. Furthermore, the court held that the state's deposit of the condemnation award prior to the expiration of the appeal period did not invalidate the judgment.

Issues

Whether the alleged fraudulent concealment by the state constituted extrinsic fraud sufficient to set aside a default judgment.
Whether the state's deposit of a condemnation award before the expiration of the appeal period rendered the final order of condemnation void.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Fraud perpetrated under such circumstances is intrinsic, even though the unsuccessful party does not avail himself of his opportunity to appear before the court.”

“Plaintiff is precluded from asserting any error here by her failure to take appropriate direct action otherwise permissible by the Code of Civil Procedure.”

BURKE, P. J. Condemnation of ocean front property at Santa Monica, California, for public use, was decreed in favor of the State of California in an action in the superior court entitled People v. Orr. A default judgment was duly entered therein against Nellie Jane Hamacher who is the plaintiff and appellant in the within action. In the condemnation action she was awarded $40,500 as the fair market value of her property. No motion for a new trial, appeal from the default judgment, appeal from the final order, or motion under section 473 of the Code of Civil Procedure was filed by her.

Some eight months after the entry of the default judgment in the condemnation proceedings plaintiff instituted the within action by filing a complaint containing six purported causes of action seeking to set aside the default judgment and final order on the alleged ground of extrinsic fraud.

Substantially, the causes of action consisted of charges of fraudulent concealment by the state:

1) Of the intended use of the property, namely, to transfer it to the City of Santa Monica (City) for automobile parking lot purposes.

2) That the City had an operating agreement with the state by the terms of which the use of such property for [182]‘-‘profit” was proscribed and that the state intended to permit such use, which is not a public use.

3) Of intended unlawful diversion of public funds for a private purpose, namely, engagement in a commercial enterprise for profit.

4) That the City was using adjacent land and intended to use the subject land as a revenue device and not in pursuance of its police powers.

5) Of the intended use of the subject land as a parking lot, resulting in a wrongful interference with and deprivation of the public use of the riparian rights therein, including those of plaintiff, in violation of public policy.

6) That the state failed to deposit the full amount of interest payable to defendant as a condition precedent to the entry of a final order of condemnation.

The complaint does not allege lack of proof of necessity, public use, or improper purpose as grounds for setting aside the judgment, but plaintiff raises these questions here on appeal. ■

Hamacher v. People

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