ALONSO INVESTMENT CORPORATION INC v. DOFF

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Court of Appeal, Second District, Division 4, California.

ALONSO INVESTMENT CORPORATION, INC., et al., Plaintiffs and Appellants, v. Jerome L. DOFF, Defendant and Respondent.

Civ. 46015.

Decided: October 03, 1975

Law Offices of Andres Alonso, Jr., and Patrick O. Meissner, Los Angeles, for plaintiff and appellant. Trope & Trope, and Timothy S. Harris, Los Angeles, for defendant and respondent.

This appeal requires us to interpret the provisions of sections 681, 683, 685 and 688 of the Code of Civil Procedure.

On April 12, 1963, plaintiff First Western Bank and Trust Company obtained a judgment by default against defendant Doff. Judgment was entered on April 15, 1963. On March 8, 1973, plaintiff Alonso Investment Corporation, Inc., as assignee of the judgment creditor, was granted a Writ of Execution on said judgment. On September 7, 1973, plaintiff delivered the writ issued on March 8, 1973, to the Marshal of Los Angeles County. A levy was made on defendant's home on September 14, 1973, and said property was purchased by Alonso Investment Corporation, Inc. at a sale held on December 11, 1973. Thereafter, on November 12, 1973, the defendant filed a Motion to Recall and Quash the Writ of Execution and Set Aside the Marshal's Sale. Said motion was granted on December 6, 1974, pursuant to the California Code of Civil Procedure, section 685. Plaintiffs have appealed from that order. For the reasons set forth below, we affirm.

In the appeal before us plaintiffs argue that the trial court erroneously interpreted California Code of Civil Procedure section 685 in holding that a writ cannot be used to enforce a judgment without further court order after the passage of a ten-year period from time of judgment. Plaintiffs rely on that portion of the language in section 685 which reads:

‘In all cases the judgment may be enforced or carried into execution after the lapse of 10 years from the date of its entry, by leave of the court, upon motion, and after due notice to the judgment debtor accompanied by an affidavit or affidavits setting forth the reasons for failure to proceed in compliance with the provisions of Section 680 of this code.’ (Emphasis added.)

Plaintiffs claim that section 685 is inapplicable in that they did act pursuant to section 681 by obtaining a writ valid under that section and that sections 681 and 685 are mutually exclusive. Plaintiffs further contend that, since the writ of execution had not expired as of the date of levy, the levy and subsequent sale, which was within one year from the date of issuance, were valid.

Defendant argues that the ten-year statute of limitations on the judgment, provided by section 337.5 of the Code of Civil Procedure, expired on April 15, 1973, and that section 685 is properly construed to limit the effectiveness of the writ issued to plaintiff Alonso Investment Corporation, Inc., to within ten years of the entry of judgment. Defendant argues that ‘enforcement’ in the context of this proceeding means the act of a judicial officer levying upon real property and cites section 688 of the Code of Civil Procedure which reads in part: ‘Until a levy, the property is not affected by the execution: . . .’ This leads to a consideration of whether the judgment in question was ‘enforced’ upon issuance of the writ of execution, or rather, upon the actual levy.1 There is a scarcity of case law on this exact point. Two cases cited by the defendant (Bagley v. Ward (1869) 37 Cal. 121, and Johnson v. Gorham (1856) 6 Cal. 195) deal with conflicting claims to the same property. In both cases the party whose execution was levied first had priority as to satisfaction of judgment. The court in Bagley stated (37 Cal. at p. 133) a policy against extending the period of recovery to a time when recovery upon the judgment was barred by the statute of limitations and indicated that enforcement took place at the time of sale:

‘The doctrine in New York and in this State is, that in order to preserve the priority acquired by the judgment lien, the sale must be made during the statutory period of the lien.’ (Emphasis added.)

Plaintiffs contends that the Legislature intended to provide creditors a ten-year period within which to obtain a writ of execution, whose life would be limited only by the provisions contained in sections 683 and 688.

Defendant contends that the Legislature intended that there be due notice to the judgment debtor in all cases where execution of the judgment is barred by the statute of limitations.

We agree with the defendant. Under section 685, the court may permit execution where, due to circumstances beyond the creditor's control, his judgment has been rendered ineffectual by expiration of the statutory period within which enforcement is allowed (Shapiro v. Cahill (1963) 219 Cal.App.2d 772, 33 Cal.Rptr. 601), and the courts have strictly construed this section in line with the frequently articulated policy barring stale claims. (Butcher v. Brouwer (1942) 21 Cal.2d 354, 132 P.2d 205.)

Defendant had no notice of execution until after expiration of the statutory period. Notice to the debtor, in the form of a motion under section 685, is required when a creditor wishes to enforce judgment after the statutory period.

The briefs, but not the record, indicate that there had been an earlier levy and sale of the involved real property and that defendant had not redeemed from that sale until August of 1973. It is suggested that levy of the writ herein involved was legitimately delayed until after that redemption. The argument specious. Assuming that those facts true, at the most they might have supported an order under section 685, for the post-10-year levy.

Plaintiffs' briefs assume that, in order to secure an order under section 685, it would have been required to return, unexecuted, the writ issued on March 8, 1973, and then move for a new writ at sometime after April 15, 1973. We do not so construe the statute. As the trial court ruled, the writ was validly issued; section 685 merely prohibited its enforcement. Plaintiffs could, after the claimed redemption from the earlier sale,2 have moved an order permitting enforcement of the writ already in its hands.

The order appealed from is affirmed.

Code of Civil Procedure section 681 authorized a party to ‘have a writ or order issued’ at any time within 10 years. Section 683 requires that the writ be returnable ‘not less then 10 nor more than 60 days after its receipt by the officer to whom it is directed.’ Section 688 says the levy shall not bind the property longer then ‘one year from the date of the issuance of the execution.’ The issuance of the writ, the levy and the sale were all within these time limits. I find no statute or other authority imposing any other time limitation which would invalidate the sale.

Section 685 affords an additional remedy for a creditor who is unable to come within section 681. It contains no language limiting what the other sections allow the creditor to accomplish.

In Lone Jack Min. Co. v. Megginson (9 Cir. 1897) 82 F. 89, the issue involved the validity of a foreclosure sale, where the order of sale had been made by a California court within five years after the foreclosure decree, but sale had been after the five year period. The court said at pages 92–93:

‘. . . It is provided by section 681, Code Civ.Proc., that an execution may issue at any time within five years after the date of the judgment entry. It has been held that an order of sale is an execution, within the meaning of this section. Dorland v. Smith, 93 Cal. 120, 28 P. 812; Rowe v. Blake, 99 Cal. 167, 33 P. 864. If an execution may issue at any time within five years, it follows that the execution so lawfully issued may be enforced. There is no provision of the laws of California providing otherwise, and no decision of the courts of that state is found holding to the contrary.’

Since that statement was made in 1897 there has been ‘no decision . . . found holding to the contrary’ until the case at bench. Several opinions indicate the court's assumption that a writ lawfully issued does not automatically expire at the end of the 10 year period (formerly 5 years) of section 681. (See e. g., Laubisch v. Roberdo (1955) 43 Cal.2d 702, 709–711, 277 P.2d 9; DiCorpo v. DiCorpo (1948) 33 Cal.2d 195, 200 P.2d 529.)

The theory of the majority opinion cannot be reconciled with Code of Civil Procedure section 682.1 which prescribes the form of the writ of execution.

The statutory form includes the date of the judgment, but does not state how long the writ is to be effective. The levying officer has no way of measuring the 10 year period because, under the terms of section 681, time during which enforcement is stayed is excluded from the computation. The clerk of the court having the court's records before him will know the time, and will issue the writ if the application is timely. The sheriff will know only that he has been given writ commanding him to enforce the judgment, and that the code says he must make a return within 60 days, and that his levy will be good for one year. He is entitled to rely upon the command of the writ (Code Civ.Proc. § 262.1) and he is liable to the creditor if he hails to act (Gov.Code, § 26664).

It is a necessary inference that the Legislature did not require the clerk to show upon the face of the writ the date the 10 year period is to expire because that date does not concern the levying officer.

The Legislature did not intend the issuance of writs which were preordained to expire at a date unknown to the levying officer.

The theory embraced in the majority opinion would have another bizarre effect upon the enforcement of a judgment payable in installments. It has long been established that when a judgment is payable by installments, the time limit in section 681 runs anew from the due date of each installment. (See Wolfe v. Wolfe (1947) 30 Cal.2d 1, 4, 180 P.2d 345.) Under a writ of execution issued for the balance due upon a judgment payable weekly (as in DiCorpo v. DiCorpo, supra), the amount which the sheriff would be authorized to collect might diminish weekly as the oldest installments reached their tenth anniversaries. But the writ would contain no notice of this.

Today's decision converts the plain words of the code into a new procedural pitfall.

FOOTNOTES

1.  As we point out below, there is some authority for the view that the writ is not ‘enforced’ until a sale thereunder has been held. Since both levy and sale were beyond the 10-year period, we need not, in this case decide more than whether a valid levy had taken place.

2.  Since it is not before us, we do not determine whether a levy, prior to the redemption, on defendant's equity of redemption was either legally possible or practically feasible.

KINGSLEY, Associate Justice.

DUNN, J., concurs.