BULMASH v. DAVIS

Reset A A Font size: Print

Court of Appeal, Second District, Division 3, California.

Jay S. BULMASH and Linda Bulmash, Plaintiffs and Respondents, v. Allen V. C. DAVIS, Defendant and Appellant.

LEXTON-ANCIRA REAL ESTATE FUND LTD., 1972, a California Limited Partnership, Plaintiff and Respondent, v. Allen V. C. DAVIS, Defendant and Appellant.

Civ. 52808, Civ. 52809.

Decided: December 05, 1978

Kurt J. Lewin, Beverly Hills, for appellant. Anderson, Ablon & Dennis, Stephen B. Maseda and Charles R. Anderson, Los Angeles, for plaintiffs and respondents.

By stipulation the above entitled matters, basically described as actions to quiet title to real property, were consolidated for trial and pursuant to application of counsel for defendant were consolidated for purposes of appeal by this court upon the representation that “(t)he only issues in this action (Jay S. and Linda Bulmash No. 52808) are identical to issues presented in the No. 52809 (Lexton-Ancira Real Estate Fund Ltd.)”

The Pleadings

In complaints filed May 9, 1974, plaintiffs Bulmash and Lexton-Ancira allege that they are owners of certain described real properties against which defendant Davis asserts an unfounded claim of right adverse to their ownership. The claim is alleged to result from the levy of a writ of execution by Davis to satisfy a money judgment in his favor against Jeff, Evelyn and David Kay, plaintiffs' predecessors in interest. By second amended answer Davis placed these allegations in issue.

The Findings

The pertinent facts as found by the trial court are as follows:

“8. On March 8, 1972, Defendant ALLEN V. C. DAVIS (hereinafter ‘DAVIS') commenced an action, in the Los Angeles County Superior Court, bearing Action No. C 24515, for money due, against JEFF S., EVELYN N. and DAVID J. KAY.

9. On July 27, 1972, pursuant to Defendant DAVIS' Motion for Summary Judgment, the Los Angeles County Superior Court entered a Judgment for money in Action No: C 24515, in favor of Defendant DAVIS and against JEFF S., EVELYN N. and DAVID J. KAY.

10. On July 28, 1972, Defendant DAVIS caused a certified copy of the Judgment in Action No: C 24515, to be recorded in the Official Records of the Los Angeles County Recorder.

11. On August 10, 1972, by Order of the Los Angeles County Superior Court the Judgment in Action No. C 24515 was vacated.

12. In September, 1972, Plaintiff LEXTON-ANCIRA received a Preliminary Title Report, issued by WEST COAST TITLE COMPANY concerning the Pacific Trade Center. This title report did not set forth any mention of the DAVIS Judgment in Action No. C 24515. In preparing this report, WEST COAST TITLE COMPANY did discover the recorded DAVIS Judgment in Action No. C 24515, and the fact that this Judgment had been vacated.

13. On January 5, 1973, JEFF S. KAY assigned all of his right, title and interest in and to the option described in Finding No. 6 above, to Plaintiff LEXTON-ANCIRA; and JEFF S. and EVELYN N. KAY delivered to Plaintiff a Grant Deed to the Pacific Trade Center, and they executed and delivered to Plaintiff an after acquired title agreement. In exchange for this, Plaintiff LEXTON-ANCIRA paid to JEFF S. KAY the sum of $674,850.00.

14. On February 20, 1973, Plaintiff LEXTON-ANCIRA exercised the option it had theretofore acquired from JEFF S. KAY as set forth in Finding No. 13 above, and Plaintiff paid to M-B XXI, the option price of $570,000.00. In exchange therefor, M-B XXI executed and delivered to Plaintiff LEXTON-ANCIRA its Quitclaim Deed to JEFF S. KAY of and concerning the Pacific Trade Center. M-B XXI was at the time it executed and delivered this Quitclaim Deed the owner in fee simple absolute of the subject property.

15. Plaintiff LEXTON-ANCIRA has been since February 20, 1973 and is now in possession of the Pacific Trade Center.

16. At no time prior to its acquisition of the Pacific Trade Center did Plaintiff LEXTON-ANCIRA ever receive any actual notice, nor did it have any actual knowledge, of the recorded, vacated DAVIS Judgment in Action No. C 24515.

17. On October 17, 1973, the California Court of Appeals ruled that ‘The order vacating the summary judgment (in Action No. C 24515) is reversed and set aside and the Trial Court is directed to restore and enter the vacated summary judgment in favor of plaintiff and appellant Allen V. C. Davis.’; and as of December 24, 1973, pursuant to the Remittitur of the Court of Appeals, the Clerk of the Los Angeles County Superior Court caused that Judgment to be re-entered.“

From these findings the court below concluded that plaintiffs acquired title to the property on February 20, 1973, free and clear of all encumbrances because the Davis judgment against Kay was of no legal effect between August 10, 1972 (the date the judgment was vacated in the superior court), and December 24, 1973 (the date the judgment was reinstated in that court by order of this court following appeal).[FN1] Judgment was entered accordingly from which defendant Davis appeals.

Contentions

After controverting the determination below that recordation of a certified copy of the Davis judgment against Kay prior to plaintiffs' acquisition of the properties did not, as a matter of law, create a lien, defendant advances a number of contentions calculated to require reversal in the event this court should agree with the trial court's resolution of the lien issue. For reasons to follow we conclude that, under the circumstances of this case, the recordation of the judgment created a lien necessitating reversal and therefore will not reach these other contentions.

Discussion

Code of Civil Procedure section 674 provides for the creation of a lien upon real property by recordation of an abstract of a judgment, the enforcement of which has not been stayed on appeal. “Its purpose is to give the judgment creditor immediate security for the subsequent enforcement of the judgment. (Citation omitted.) The lien continues . . . Unless the enforcement of the judgment . . . Is stayed . . . .” (Laubisch v. Roberdo (1954) 43 Cal.2d 702, 707, 277 P.2d 9, 12.) “The lien of the judgment and the lien of the attachment on real property are both terminated by the filing of a Supersedeas bond.” (Davis v. Perry (1932) 120 Cal.App. 670, 673, 8 P.2d 514, 515; see also Crevolin v. Crevolin (1963) 217 Cal.App.2d 565, 574-575, 31 Cal.Rptr. 622.) The abstract may be recorded prior to the filing of the bond. (Crevolin v. Crevolin, supra, at p. 575, 31 Cal.Rptr. 622.)

The record in the instant case is devoid of any indication that enforcement of the Davis judgment lien was stayed on appeal in the prior cases by the execution of a sufficient undertaking or otherwise. Under the circumstances the lien created by the recordation of the abstract of this judgment was still in existence at the time the property was conveyed to plaintiffs. They took subject to the lien.

Lexton-Ancira's argument that the order vacating the judgment operates to destroy the effect of the judgment misses the mark.[FN2] The recordation of the abstract of judgment in the instant case took place the day following rendition of the judgment and prior to the order setting it aside being made much less becoming final. By statute the lien created by the recordation became effective forthwith and remained in effect unless and until stayed as provided therein or the obligation satisfied or the lien “otherwise discharged.” The latter phrase takes cognizance of the possibility of the underlying judgment eventually being reversed on appeal. While it may be true, that for a limited time the judgment herein was rendered ineffective by the order of the trial court, that did not render the lien invalid as the order itself was not then final. By in effect upholding the judgment the appellate court sustained the validity of the lien. In the event the judgment had been effectively reversed, the lien would have been “otherwise discharged” as contemplated by section 674.

The judgments are reversed.

FOOTNOTES

1.  Davis v. Kay, 34 Cal.App.3d 680, 110 Cal.Rptr. 198.

2.  The cases cited in support of this argument presume the existence of a final order (cf. Levy v. Drew (1935) 4 Cal.2d 456, 461, 50 P.2d 435) and are otherwise factually distinguishable and not controlling of our decision herein.

ALLPORT, Associate Justice.

COBEY, Acting P. J., and POTTER, J., concur.