Opinion
NOT TO BE PUBLISHED
APPEAL from a post judgment order of the Superior Court of San Diego County, Super. Ct. No. GIC791012, Kevin A. Enright, Judge. Order reversed with directions; requests to dismiss appeal and for sanctions denied.
O'ROURKE, J.
Appellants East County Investigations, Jon Lane and Sue Lane appeal from a post judgment order granting respondents Pamela Lacher and Roslyn Lacher's application for an order compelling partial satisfaction of appellants' judgment against Lachers under Code of Civil Procedure section 724.110, sub d. (a). The order provided that the partial satisfaction would "completely" satisfy the judgment owed by Roslyn Lacher and a portion of the judgment owed by Pamela Lacher. On appeal, appellants challenge the trial court's jurisdiction to rule on Lachers' request absent a proper demand for satisfaction by Lachers. They also challenge various other aspects of the trial court's order, including its provision for satisfaction of the judgment against Roslyn Lacher in its entirety, its computation of the amount due on the judgment's remainder, and the trial court's failure to consider whether Pamela Lacher's transfer of certain real property to a trust was a fraudulent transfer. Finally, appellants contend they are entitled to attorney fees on appeal.
All statutory references are to the Code of Civil Procedure unless otherwise indicated.
Lachers have requested that we dismiss the appeal and award sanctions for what they claim is a frivolous appeal. We deny those requests. We conclude the court acted in excess of its jurisdiction under section 724.110 and therefore, reverse the order and direct the trial court to deny the motion.
FACTUAL AND PROCEDURAL BACKGROUND
This matter returns to this court after two prior appeals stemming from long running disputes between Pamela Lacher and appellants. Appellants had filed a small claims action against Pamela Lacher in 2001, and in 2002 she responded by filing a superior court law suit against them. In June 2003, appellants successfully demurred to and moved to strike Pamela Lacher's complaint under section 425.16 (commonly known as the "anti-SLAPP" statute), and received judgment against Pamela Lacher and Roslyn Lacher awarding appellants $7687.90 in attorney fees and costs. In August 2003, Roslyn Lacher filed but then abandoned an appeal from that judgment.
We take judicial notice of the briefs, records and unpublished opinions in Lacher v. East County Investigations, et al. (Dec. 15, 2004, D042732) and Lacher v. East County Investigations, et al. (Dec. 15, 2004, D042004). (Evid. Code, §§ 452, sub d. (d), 459.)
Appellants began efforts to collect on their judgment by seeking to levy a bank account of the Lachers. Roslyn Lacher responded by seeking a claim of exemption, which appellants opposed and the trial court denied by order of August 22, 2003.
On October 10, 2003, Roslyn Lacher deposited the sum of $7,687.90 with the San Diego Superior Court. On the same day, Lachers filed an "amended" notice of appeal of the trial court's order denying their claim of exemption with regard to the bank account's funds, as well as a separate "Notice of Posting of Bond in Lieu of Judgment; and Request for Immediate Stay Pending Appeal." The notice of appeal indicated that Lachers sought to give notice of posting of a bond in lieu of judgment, and requested a stay. Appellants thereafter successfully moved to have the trial court declare the cash undertaking to be insufficient, resulting in an order requiring Lachers to deposit cash in an amount one and one half times the amount of the judgment, excluding costs. Roslyn Lacher later deposited another $3,843.95. The total cash deposit eventually became $10,467 after the court released $1,064.85 in overpayment to Lachers.
This notice states: "Please take notice that on October 10, 2003, a Bond was posted in lieu of a judgment, a copy of which is attached herein thereby terminating any and all collection efforts in the above entitled [sic] matter."
In December 2004, this court affirmed the trial court's orders and judgment in non published opinions. (Lacher v. East County Investigations, et al., supra, D042732; Lacher v. East County Investigations, et al., supra, D042004.) We additionally determined Pamela Lacher's appeal in case No. D042004 to be frivolous and awarded appellants $7,166 in sanctions.
In March 2005, appellants moved for an award of attorney fees and for an order remitting $10,507 in the deposited funds and accrued interest to them. They also filed cost memoranda for $30 (for costs relating to Lacher's appeal in D02732) and $7482 (for printing of briefs, preparation of the clerk's transcript and the sanctions awarded by this court in appeal No. D042004). On April 5, 2005, appellants recorded an abstract of judgment with the San Diego County Recorder's Office in the amount of the judgment, identifying Lachers as judgment debtors. The day before the hearing on appellants' motion, Pamela Lacher purported to file a notice of lis pendens against appellants on behalf of Roslyn Lacher as a third party claimant. Appellants responded with a motion to expunge the lis pendens and for attorney fees incurred in doing so.
In June 2005, appellants moved to recover another $3,156.30 in attorney fees incurred in litigating the mandatory attorney fee award under section 425.16, subdivision (c). In August 2005, on appellants' pending motions, the court awarded appellants $1,016.30 in attorney fees incurred to expunge the lis pendens. It also awarded appellants an additional $11,186.30 in attorney fees, including $8,330 for defending Lachers' appeals and paying for post judgment, pre-appeal services in defending Roslyn Lacher's claim of exemption, insufficient bond posting and writ of supersedeas; and $2,856.30 incurred due to Lachers' opposition to the award of mandatory fees under section 415.16, subdivision (c). The court ruled these fees were collectible under sections 685.040 and 685.070, subdivision (a)(6) as incurred for collection and enforcement of the SLAPP judgment.
The court's order reads in part: "Defendant East County Investigations and Sue and Jon Lane's Motion for Award of Attorney's Fees and Costs is granted in the sum of $11,186.30. This includes fees of $8,330, $2,856.30, and $30 in costs on appeal. The $8,330 is comprised of $5,800 in defending the appeals + $2,500 sought by [defendants] for post-judgment pre-appeal services in defending the Claims of Exemption, insufficient bond postings and a Writ of Super[s]edeas, and an additional $2,856.30 (14.1 hrs. x $200 hr. plus filing fee of $36.30) incurred due to [plaintiff's] opposition to the award of fees under the anti-Slapp statute, [plaintiff's] unavailability on 4/22/05, and her 6/3/05 request for additional time to respond. These fees and costs were incurred in collection and enforcement of the Slapp Judgment and are allowed as outlined in [sections] 685.040 and 685.070[, subdivision] (a)(6)." It appears the court counted $30 twice in these calculations.
In September 2005, appellants filed a Judicial Council form Memorandum of Costs After Judgment, Acknowledgement of Credit and Declaration of Accrued Interest, showing total claimed post judgment costs of $13,344.60, including $12,238.60 in attorney fees incurred as of August 5, 2005, $316 in costs on appeal, $790 in previously allowed post judgment costs, and $3,292.28 in accrued interest. Appellants acknowledged credit in the amount of $10,467.
In January 2006, Lachers applied exparte for an application to compel the court to order entry of partial satisfaction of judgment, for damages and for a restraining order against appellants to foreclose any further enforcement of the judgment against (1) certain real property at 12005 World Trade Drive (the World Trade property) formerly owned by Pamela Lacher, but assertedly owned at that time by the DSG trust and (2) any real or personal property owned by Roslyn Lacher. Lachers argued they had deposited monies with the court in lieu of the judgment covering the amount of the judgment as well as additional post judgment costs, but appellants had refused to comply with a demand to issue a partial satisfaction of judgment made by an escrow company handling the sale of the World Trade property. Citing section 685.030, subdivision (d), Lachers argued the money judgment was deemed satisfied in full as of October 2003, when they deposited the initial $7,687.90 with the court. Lachers further argued that the World Trade property in trust was independently exempt from the reach of a judgment lien of attachment under section 697.340. Appellants opposed the motion, arguing in part Lachers had not made a demand for partial satisfaction and there was no legal basis to grant the motion or issue an injunction of any kind. They also argued the judgment remained unpaid because the law required credit of monies to be applied first to costs, then accrued interest, then to the principal amount of the judgment under section 695.220.
On January 23, 2006, the court denied without prejudice Lachers' ex parte application for a restraining order " 'to foreclose any further abstract of judgment from being put on the [World Trade] property. . . .' " It reasoned Lachers' evidence was insufficient to show an immediate and irreparable harm, and the grantor/grantee index accompanying the motion was not authenticated and was not shown to concern the property allegedly in escrow. At some point, as reflected in papers submitted in opposition to the motion, the matter was set for a hearing on February 3, 2006.
Following arguments on the matter, on February 6, 2006, the court, treating Lachers' request as a noticed motion, granted it and directed appellants to file a partial satisfaction of judgment. It ruled the partial satisfaction "shall completely satisfy the judgment owed by Roslyn Lacher and $10,467 of the Judgment owed by Pamela Lacher. The judgment remaining against Pamela Lacher is $17,147.44 incurring interest at $4.07 per day on and after 2/6/06." The court denied Lachers' request for an injunction against creating more liens on the World Trade property, but ruled no judgment lien existed on the property. It granted Lachers' request for an injunction against appellants creating any further liens against Roslyn Lacher, explaining Roslyn Lacher "has paid $11,531.85" and she "did not appeal so any Court of Appeal sanctions, or fees and costs incurred by [appellants] on appeal, or fees and costs ordered by the trial court since the Judgment, other than accrued interest, are not her responsibility." The court summarized what it found was Pamela Lacher's remaining liability on the judgment: "Pamela Lacher remains liable to [appellants] for the Judgment ($7,687.90), as augmented by the Court of Appeal sanctions ($7,166); the fees and costs awarded to [appellants] in defeating the frivolous appeal ($5,800); for post-judgment, pre-appeal services in defending the Claims of Exemption, insufficient bond posting, and Writ of Super[s]edeas ($2,500); the fees and costs incurred to expunge a lis pendens ($1,016.30); the fees and costs incurred in obtaining anti-SLAPP relief and in attempting to collect and enforce the judgment ($2,856.30); plus interest accruing at $4.07/day since 9/15/05 ($577.94 as of 2/6/06), minus the $10,467 previously posted by [Lachers] and ordered turned over to [appellants]. There is no admissible evidence submitted regarding other costs of collection. Thus the present Judgment against Pam Lacher is $17,147.44 ($27,604.44 minus $10,467) as of 2/6/06."
On this point, the court explained: "However, because title to the [World Trade] property is presently held by the D.S.G. trust, and was so held before recordation of the Abstract of Judgment, no judgment lien exists against the real property. Whether a valid lien may be created by Defendants at some time in the future against real property while it is held by a trust is an unanswered question dependent on whether the trust is a revocable inter vivos trust."
Several days later, Sue Lane sought ex parte to modify and clarify the court's order to include an additional $4,454.28 in attorney fees, costs and interest that the court had assertedly omitted from its order. At about the same time, Lachers sought an order compelling entry of full satisfaction of judgment and for sanctions for appellants' asserted failure to comply with the court's February 6, 2006 order.
The record does not show that these ex parte requests were considered before appellants filed their notice of appeal.
On March 30, 2006, appellants filed the present appeal.
DISCUSSION
I. Request to Dismiss Appeal
Lachers move to dismiss this appeal on several grounds. First, they contend the court's February 6, 2006 post judgment order is not appeal able under section 904.1 or any other applicable statutory provision granting the right to appeal. They also argue appellants have not shown the trial court erred in its interpretation of the law. Finally, they argue the court's order was not final.
Section 904.1, subdivision (a) provides in part: "An appeal, other than in a limited civil case, may be taken from any of the following: [¶] (1) From a judgment . . . . [¶] (2) From an order made after a judgment made appeal able by paragraph (1)." As Lachers point out, not every post judgment order that follows a final judgment is appeal able: "Despite the inclusive language of Code of Civil Procedure section 904.1, subdivision (b), not every post judgment order that follows a final appeal able judgment is appeal able. To be appeal able, a post judgment order must satisfy two additional requirements. . . . [¶] The first requirement . . . is that the issues raised by the appeal from the order must be different from those arising from an appeal from the judgment. [Citation.] 'The reason for this general rule is that to allow the appeal from [an order raising the same issues as those raised by the judgment] would have the effect of allowing two appeals from the same ruling and might in some cases permit circumvention of the time limitations for appealing from the judgment.' . . . [¶] . . . [¶] The second requirement . . . is that 'the order must either affect the judgment or relate to it by enforcing it or staying its execution.' " (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651 (Lakin); see also Olson v. Cory (1983) 35 Cal.3d 390, 400 ["[t]o be appeal able as an order after judgment, the order must either affect the judgment or relate to it by enforcing it or staying its execution"]; Roden v. Amerisource Bergen Corp. (2005) 130 Cal. App.4th 211, 215-216.)
Here, the issues raised by appellants' appeal from the order granting partial satisfaction of judgment and injunctive relief are plainly different from those raised by the underlying judgment on Lachers' amended complaint (asserting causes of action for misrepresentation, intentional infliction of emotional distress, defamation, breach of contract, and intentional and negligent interference with prospective business advantage), which was entered as a result of appellants' successful demurrer and section 425.16 motion to strike. (Lakin, supra, 6 Cal.4th at p. 651.)Lachers do not contend otherwise. We conclude Lakin's first requirement for appeal ability is satisfied.
As for the second requirement, Lachers simply assert, "the questioned orders . . . do not necessarily add to or subtract from the underlying judgment (thus appellants were not aggrieved)"; "they do not make a final determination of rights and obligations of parties"; the orders "do not direct the payment of money by appellant or the performance of some act by or against him; and they do not directly affect the judgment either by way of enforcing it or staying its execution." On the finality question, Lachers point to the fact that the parties had pending motions seeking correction of the order at the time appellants filed their appeal.
These bare assertions, absent any pertinent analysis or application of the general principles of law to the specific circumstances presented here, entitle us to summarily reject the arguments as abandoned. (Landry v. Berryessa Union School Dist. (1995) 39 Cal. App.4th 691, 699-700 [absent application of general principles to circumstances before the court, appellate court is entitled to deem the claims abandoned and disregard them for lack of cognizable legal authority].) Nevertheless, we are not convinced the trial court's order is an interim, non appeal able order. Lachers' argument that the order neither adds to nor subtracts from the judgment is unpersuasive. "[T]he effect on, or relationship to, the judgment required to make a post judgment order appeal able is not limited to a simple mathematical calculation. To conclude otherwise would mean that a post judgment order awarding attorney fees – thereby adding to the judgment – was appeal able, while a post judgment order denying attorney fees – neither adding to nor subtracting from the judgment – was not. This is not the law." (Lakin, supra, 6 Cal.4th at p. 653.) That the trial court's order does not cause anything to be added to or subtracted from the judgment is not determinative on its appeal ability.
Further, any claim that the order in this case does not directly affect the judgment's enforcement is wholly without merit. " 'Orders made to enforce a judgment or to prevent its enforcement are appeal able. The principle is that an order which affects enforcement of the judgment is appeal able whether it favors the judgment creditor or the judgment debtor.' " (Lovret v. Seyfarth (1972) 22 Cal. App.3d 841, 851; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 140, p. 206); see Baum v. Baum (1959) 51 Cal.2d 610, 614.) The order here limits appellants' ability to enforce their judgment against property that they contend may still be owned by Lachers, and thus plainly affects the judgment or relates to its enforcement so as to meet Lakin's appeal ability requirements. (Lakin, supra, 6 Cal.4th at p. 651.)
Particularly as to Roslyn Lacher, who was deemed to receive full satisfaction of the underlying judgment by the order and obtained an injunction in her favor, the order finally determined the rights of appellants to enforce their judgment against her, and the order in that regard is not "preparatory to later proceedings" or subject to appeal after a future judgment which, as Lakin explains, are indications of an interim, non appeal able order. (Lakin, supra, 6 Cal.4th at pp. 653-654.) Lachers provide no authority for the proposition that a pending motion for correction of an order renders the order itself interlocutory and non appeal able. To the contrary, in view of the court's inherent power to correct clerical errors in its judgments or orders even during the pendency of an appeal (§ 473; In re Marriage of Sheridan (1983) 140 Cal. App.3d 742, 746; see also Zisk v. City of Roseville (1976) 56 Cal. App.3d 41, 47; Ex Parte Roberts (1962) 200 Cal.App.2d 95, 97; 7 Witkin, Cal. Procedure (4th ed. 1997) Judgments, § 69, p. 597), we are convinced that the filing of such a motion does not render the order interim.
" 'Clerical error . . . is to be distinguished from judicial error which cannot be corrected by amendment. The distinction between clerical error and judicial error is "whether the error was made in rendering the judgment, or in recording the judgment rendered." ' " (Aspen Internat. Capital Corp. v. Marsch (1991) 235 Cal. App.3d 1199, 1204.) Thus, " ' "[t]he term 'clerical error' covers all errors, mistakes, or omissions which are not the result of the exercise of the judicial function. If an error, mistake, or omission is the result of inadvertence, but for which a different judgment would have been rendered, the error is clerical and the judgment may be corrected to correspond with what it would have been but for the inadvertence. [Citations.] The court has inherent power to correct such errors." ' " (Ibid.)
Finding no other cogent or meaningfully supported arguments in support of Lachers' request to dismiss the appeal, we proceed to the merits.
II. Jurisdiction to Order Partial Satisfaction
Appellants contend the trial court lacked jurisdiction to rule on Lachers' motion for partial satisfaction of judgment because Lachers never properly filed a demand for satisfaction as required by section 724.110, subdivision (a), and the escrow company handling the refinance or sale of the World Trade property, if it ever made such a demand, was not authorized by that statute to do so. Specifically, appellants point out Lachers, who were the judgment debtors, did not make the demand in writing served personally or by mail. They assert, "Without the demand having been made, it naturally follows that the creditors have not refused to comply with the demand. In short there was no legal basis for the court to be involved, and the court did not have jurisdiction to make any rulings on the Lachers['] improper motion."
Lachers counter with a series of arguments: that appellants waived their jurisdictional argument by failing to make it below and also by voluntarily complying with the court's order; that the question of whether they (Lachers) complied with the procedural mandates of section 724.110 is a fact question that is not reviewable on appeal; and the order is subject to a presumption of correctness that cannot be overcome in the absence of a statement of decision or by arguments not raised below.
1. Waiver
Before addressing the issue of waiver, we point out appellants' arguments do not explain the nature of trial court jurisdiction they raise. To the extent they argue the court lacked fundamental subject matter jurisdiction to rule on Lachers' motion as they suggest in their reply brief, they are incorrect. The trial court's failure to comply with a statutory limitation does not raise an issue of subject matter jurisdiction. Rather, the type of jurisdictional error implicated is an action of the court that is in "excess of jurisdiction," a separate and distinct concept from subject matter or personal jurisdiction. The distinction was explained by the Court of Appeal in Harnedy v. Whitty (2003) 110 Cal. App.4th 1333: " 'The principle of "subject matter jurisdiction" relates to the inherent authority of the court involved to deal with the case or matter before it.' [Citation.] 'In contrast, a court acts in excess of jurisdiction " ' where, though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no "jurisdiction" (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.' " ' " (Harnedy v. Whitty, at p. 1344; see also People v. Mower (2002) 28 Cal.4th 457, 474, fn. 6; Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288; Wozniak v. Lucutz (2002) 102 Cal. App.4th 1031, 1040 [acts that exceed the defined power of the court in any instance whether that power be defined by constitutional provision, express statutory declaration, or rules developed by the courts and followed under the doctrine of stare decisis, are described as acts in excess of jurisdiction], disapproved on other grounds in Le Francois v. Goel (2005) 35 Cal.4th 1094, 1104.) In the case where " 'a statute authorizes prescribed procedure, and the court acts contrary to the authority thus conferred, it has exceeded its jurisdiction . . . .' " (Abelleira v. District Court of Appeal, 17 Cal.2d at p. 290.)
Turning to Lachers' waiver argument, we reject it. The record shows appellants in fact argued in opposition to Lachers' motion below that the trial court had no legal basis to consider the motion where Lachers had not made a proper demand for partial satisfaction of judgment. Thus, the gravamen of their jurisdictional argument was before the trial court. At best, Lachers may attempt to claim that appellants seek to change the theory on appeal (see Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal. App.4th 820, 847 [parties are not permitted to adopt a new and different theory on appeal]), but that settled appellate principle is subject to an exception for new theories pertaining to questions of law on undisputed facts. (Ward v. Taggart (1959) 51 Cal.2d 736, 742; Yeap v. Leake (1997) 60 Cal. App.4th 591, 599, fn. 6 [appellate court has the discretion to consider a new issue on appeal where it involves a pure question of the application of law to undisputed facts], abrogated on other grounds in Hossain v. Hossain (2007) ___ Cal. App.4th ___ [2007 D.A.R. 17689, 17691-17692]; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) § 8:237, p. 8-137.)
Here, there is no factual dispute about what occurred concerning the purported demand for partial satisfaction; the only "demand" in the record was reflected in a letter from the escrow company involved with the World Trade property; Lachers argued that was a demand under section 724.110, and appellants contended otherwise. Thus, at issue is only the legal effect or legal propriety of that letter as constituting a valid demand for acknowledgement of partial satisfaction under section 724.110. Under these circumstances, this court has the discretion to consider the new issue because the opposing parties have not been deprived of the opportunity to litigate disputed fact issues. (Yeap v. Leake, supra, 60 Cal. App.4th at p. 599, fn. 6; Ward v. Taggart, supra, 51 Cal.2d at p. 742;see also Frink v. Prod (1982) 31 Cal.3d 166, 170.) Given our conclusion in this regard, we further reject Lachers' contention that the issue presents a question of fact that is not reviewable on appeal.
As for appellants asserted "voluntary" compliance with the court's order constituting a waiver, Lachers fail to discuss (and apparently attempt to avoid application of) the exceptions to that general rule. In Lee v. Brown (1976) 18 Cal.3d 110, at page 115, the Supreme Court stated: "[A] waiver will be implied where there is voluntary compliance with a judgment, as when the judgment debtor satisfies the judgment by making payment to the prevailing party under its terms. [Citations.] Again, the waiver rule as applied in this context is also subject to an exception. A waiver of the appeal right occurs only where the compliance was '. . . by way of compromise or with an agreement not to take or prosecute an appeal.' " In a prior decision, the court stated: "In the case of voluntary satisfaction of a judgment, deprivation of the right to appeal ensues only when it is shown that the payment of the judgment was by way of compromise or with an agreement not to take or prosecute an appeal." (Estate of Merrill (1946) 29 Cal.2d 520, 524, first italics omitted, second italics added.)
Assuming arguendo appellants' filing of a partial satisfaction of judgment was voluntary rather than compulsory (see Reitano v. Yankwich (1951) 38 Cal.2d 1, 3), that acknowledgement did not waive their right to appeal the judgment because there is no evidence in the record showing their acknowledgement was made pursuant to a compromise or settlement or an agreement not to appeal that judgment. (Lee v. Brown, supra, 18 Cal.3d at p. 115; Estate of Merrill, supra, at p. 524; Stone v. Regents of University of California (1999) 77 Cal. App.4th 736, 745.) Rancho Solano Master Assn. v. Amos & Andrews, Inc. (2002) 97 Cal. App.4th 681, cited by Lachers, is inapposite because in that case the parties reached a settlement agreement after the notice of appeal was filed. (Id. at p. 688.)
2. Presumption of Correctness
We likewise find without merit Lachers' contention that, because appellants did not request a statement of decision, they may not raise their jurisdictional argument given the presumption of correctness afforded the trial court's order. Specifically, they argue "the failure of a request for a statement of decision acts as a waiver of a contention that the court disregarded a particular theory." For this proposition, Lachers' cite Tyler v. Children's Home Society (1994) 29 Cal. App.4th 511, where the parties underwent a three week bench trial, the court thereafter issued an 11-page "Opinion and Ruling" and neither party sought a statement of decision. (Id. at pp. 526, 527, fn. 7.) Faced with a contention on appeal that the defendants had violated various regulations, the Tyler court observed the evidence was conflicting and thus it would infer findings in favor of the judgment in the absence of a statement of decision. (Id. at p. 529.)
Tyler is inapposite under the circumstances here. As appellants correctly point out, this matter did not involve a bench trial, and thus procedures and legal principles relating to statements of decision are inapplicable. (In re Marriage of Askmo (2000) 85 Cal. App.4th 1032, 1040 [section 632, requiring a trial court to issue a statement of decision " 'upon the trial of a question of fact' " on request of a party, does not apply to an order on a motion, even if the motion involves an evidentiary hearing and the order is appealable].) Moreover, since section 724.100 requires certain findings to be made by the trial court before ordering an acknowledgement of partial satisfaction, a statement of decision is not required. (Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2006) ¶ 16:112, p. 16-26.)
3. The Trial Court Exceeded its Jurisdiction in Ordering Partial Satisfaction
Section 724.110 addresses the procedure for obtaining an acknowledgement of partial satisfaction of judgment. It provides:
"(a) The judgment debtor or the owner of real or personal property subject to a judgment lien created under a money judgment may serve on the judgment creditor a demand in writing that the judgment creditor execute, acknowledge, and deliver an acknowledgment of partial satisfaction of judgment to the person who made the demand. Service shall be made personally or by mail. If the judgment has been partially satisfied, the judgment creditor shall comply with the demand not later than 15 days after actual receipt of the demand.
"(b) If the judgment creditor does not comply with the demand within the time allowed, the judgment debtor or the owner of the real or personal property subject to a judgment lien created under the judgment may apply to the court on noticed motion for an order requiring the judgment creditor to comply with the demand. The notice of motion shall be served on the judgment creditor. Service shall be made personally or by mail. If the court determines that the judgment has been partially satisfied and that the judgment creditor has not complied with the demand, the court shall make an order determining the amount of the partial satisfaction and may make an order requiring the judgment creditor to comply with the demand."
In their motion for partial satisfaction, Lachers asserted that the demand under section 724.110 was made by the escrow company handling the escrow on the World Trade property. Specifically, Lachers attached a letter from Sue Lane to Maritime Escrow, Inc. (Maritime) dated December 21, 2005, regarding Escrow No. 05-25360 (relating to the World Trade property), in which Sue Lane responded to Maritime's request for payoff on their abstract of judgment by indicating that the total amount due was $21,979.18, and advising the Maritime escrow officer, "After payoff, I will file the Satisfaction of Judgment." Maritime's letter to East County Investigations of the same date, which appellants attached as an exhibit in opposition to Lachers' motion for partial satisfaction, reads: "We are handling the above-numbered escrow which calls for payment in full of the Trust Deed you currently hold on the property being conveyed, described as follows: [¶] [legal description] [¶] Urgent – Please fax a copy of your demand asap to: Please make good for 30 days. Thank you [¶] Maritime Escrow, Inc. . . ." (Bolding and capitalization omitted.)
Exercising our ability to interpret the Maritime correspondence and the requirements of section 724.110 as a matter of law (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 866; People ex rel. Lockyer v. Shamrock Foods Co . (2000) 24 Cal.4th 415, 432), neither Sue Lane's letter nor the actual payoff demand letter from Maritime can be reasonably construed as a demand for acknowledgement for partial satisfaction in accordance with section 724.110. By its payoff letter, Maritime merely sought to satisfy any sums due appellants under the judgment lien that had been created by their April 5, 2005 abstract of judgment and that attached to all real property owned by the judgment debtors. (§§ 697.310, sub d. (a) ["Except as otherwise provided by statute, a judgment lien on real property is created under this section by recording an abstract of a money judgment with the county recorder"], 697.340; see Mercantile Collection Bureau v. Roach (1961) 195 Cal.App.2d 355, 357-358.) The letter itself did not ask for an acknowledgement of satisfaction of appellants' judgment, though Sue Lane offered to file such a satisfaction upon payoff.
Further, section 724.110 expressly requires that the demand be made in writing, by "[t]he judgment debtor or the owner of real or personal property subject to a judgment lien." (§ 724.110, sub d. (a).) Lacher did not show below, nor has she shown on appeal, that Maritime was either the judgment debtor or the owner. In fact, the Maritime loan escrow instructions attached by appellants in opposition to Lachers' motion for partial satisfaction, shows that the "undersigned Borrower" was obtaining a new loan on the World Trade property, and that title to the property was to be vested in "Pamela Lacher, an unmarried woman." Those instructions, dated December 12, 2005, were signed by Pamela Lacher as the borrower.
Pamela Lacher thereafter presented a copy of the first page of these escrow instructions to the court – redacting her name as the person identified as taking title – and claimed the paper demonstrated that DSG trust was the owner of the World Trade property.
In reaching its decision, the trial court did not make a factual finding that appellants, as judgment creditors, had not complied with the demand for satisfaction. However, on our independent reading of the statute, we conclude such a finding is a necessary predicate to any ruling by the court requiring the judgment creditor to comply with a demand. (§ 724.110 ["If the court determines that the judgment has been partially satisfied and that the judgment creditor has not complied with the demand, the court shall make an order determining the amount of the partial satisfaction and may make an order requiring the judgment creditor to comply with the demand"].) The court did not make an express finding to that effect, nor are we able to imply such a finding on the evidence in the record before us. Absent such a finding, the court exceeded its jurisdiction in entering the order. Accordingly, we reverse the order with directions that the court deny Lachers' request for an order compelling acknowledgement of partial satisfaction of judgment.
III. This Appeal is Not Frivolous or Vexatious; Lachers' Request for Sanctions is Denied
Lachers argue we should award them sanctions on grounds this appeal is frivolous because it arises from a non appealable order, and raises arguments not supported by law or fact. We disagree.
"[A]n appeal should be held to be frivolous only when it is prosecuted for an improper motive – to harass the respondent or delay the effect of an adverse judgment or when it indisputably has no merit – when any reasonable attorney would agree that the appeal is totally and completely without merit." (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) Our conclusion in part I, ante, that the trial court's order is an appealable order, as well as our resolution as to the trial court exceeding its jurisdiction, defeats Lachers' argument that this appeal is frivolous or totally and completely without merit. Lachers' request is denied.
IV. Appellate Attorney Fees
Contending this appeal stems from Lachers' continued efforts to thwart payment of and responsibility for the judgment, sanctions, costs and attorney fees stemming from appellants' motion to strike under section 425.16, appellants request attorney fees for prosecuting this appeal. They point out that Lachers have previously filed two appeals resulting in sanctions, costs, and attorney fees that ultimately added thousands of dollars to the judgment, and then brought the present motion for partial satisfaction before the trial only to avoid having the judgment paid during Pamela Lacher's refinance of the World Trade property. Other than asserting that the appeal is devoid of merit and that appellants should be sanctioned, Lachers do not respond with any substantive argument. We grant appellants request for attorney fees under section 425.16, the amount of which will be determined by the trial court.
V. Issues on Remand
Having reversed the trial court's order as in excess of its jurisdiction, we need not reach appellants' other contentions. However, because we anticipate further enforcement proceedings in this matter, we briefly address some of the points raised by appellants to assist the court with matters that are likely to arise following remand.
A. Joint Judgment
The June 2003 judgment against Lachers provides in part: "IT IS FURTHER ORDERED, ADJUDGED AND DECREED that defendants EAST COUNTY INVESTIGATIONS, JON LANE, and SUE LANE shall recover the amount of $7687.90 ($6978.00 in attorney fees and $709.90 in court costs) from Plaintiffs PAMELA and ROSLYN LACHER." The attorney fees and costs award against both Lachers is a joint obligation under Civil Code section 1431, which provides in part: "Any obligation imposed on several persons . . . is presumed to be joint, and not several, except as provided in [Civil Code s]ection 1431.2 [several liability for non-economic damages], and except in the special cases mentioned in the title on the interpretation of contracts."
In ruling upon Lachers' motion for partial satisfaction, the trial court determined Lachers' $10,467 cash deposit fully satisfied the judgment against Roslyn Lacher, who the court found had already paid $11,531.85. It also found Roslyn Lacher had not appealed from the judgment, thus exempting her from any responsibility for the sanctions, fees and costs incurred by appellants on appeal or after the judgment was entered. Based on these findings, the court enjoined any further enforcement of the judgment against her.
The court's ruling did not consider the joint nature of the judgment, which obligates both Pamela and Roslyn Lacher on the original judgment under section 425.16. Nor does it recognize that appellants successfully obtained awards for post judgment attorney fees and costs incurred in opposing the claim of exemption made by Roslyn Lacher, expunging a notice of lis pendens filed on Roslyn Lacher's behalf, and successfully defending against motions for attorney fees and costs filed by Roslyn Lacher as a third party claimant. While Roslyn Lacher ultimately abandoned her appeal from the June 2003 judgment, she had nevertheless taken steps to avoid plaintiffs' enforcement of the judgment entered against her, which resulted in post judgment awards of attorney fees and costs to appellants. All of these attorney fees and costs, reflected in cost memoranda filed by appellants, were added to the judgment upon their award to appellants. (§§ 685.040 [judgment creditor is entitled to reasonable and necessary costs of enforcing a judgment, and attorney fees may be included as costs incurred in enforcing a judgment if provided by law]; 685.070, sub d. (d); 685.090 [costs are added to and become part of the judgment upon the expiration of the time for making a motion to tax if a memorandum of costs is filed pursuant to section 685.070 and no motion to tax is made]; see Wanland v. Law Offices of Mastagni, Holstedt and Chiurazzi (2006) 141 Cal. App.4th 15, 22-23 [attorney fees incurred in challenging adequacy of undertaking to stay enforcement of attorney fee award under section 425.16 are recoverable costs under section 685.040].
The court does not have the ability to apportion the judgment between debtors in view of its joint nature. As a joint judgment debtor, Roslyn Lacher's remedy, if she contends that she paid more than her fair share of the judgment, is to compel contribution from Pamela Lacher, her co-obligor. (§§ 881-883, 1432; Woolley v. Seijo (1964) 224 Cal.App.2d 615, 621-622.)
B. Calculation of Judgment
Appellants contend the trial court erred in its calculation of the total amount remaining unsatisfied on their judgment; that it neglected to include (1) $3,292.28 in statutory interest accruing from the date of entry of the June 2003 judgment through September 14, 2005; $790 in attorney fees (identified as "previously allowed post judgment costs"); $316 in costs for a clerk's transcript and copying of briefs; and $36.30 in filing fees, all of which they assert were included in their September 2005 cost memorandum.
There is no indication in the record that Lachers timely moved to tax those costs and attorney fees claimed by appellants in that document, and absent such a motion, enforcement costs claimed in the appellants' memorandum are automatically allowed and added to the judgment. Applying the principles set forth above in part V(A), ante, it is for the trial court to reconcile these claims on remand by way of a motion to correct clerical errors in its judgment.
C. Application of Section 685.030
Lachers contend that the June 2003 money judgment in this matter was fully satisfied by their deposit of $10,467 with the court and thus no interest could accrue from June 30, 2003 to September 14, 2005 as appellants had requested. In support of this argument, Lachers cite to section 685.030, subdivision (d), as well as section 971.1, subdivision (b), which, they argue, designates how the amount posted is to be applied. The proposition is untenable.
Section 685.030 provides in part: "(b) If a money judgment is satisfied in full other than pursuant to a writ under this title, interest ceases to accrue on the date the judgment is satisfied in full. [¶] . . . [¶] . . . (d) For the purposes of subdivision (b) . . . the date a money judgment is satisfied in full or in part is the earliest of the following times: [¶] . . . [¶] (2) The date satisfaction is tendered to the judgment creditor or deposited in court for the judgment creditor."
Here, Lachers' deposit of funds with the court was filed concurrently with a notice of posting bond in lieu of judgment expressly stating that it was "terminating any and all collection efforts in the . . . matter." (See footnote 3, ante.) Thus, the deposit was specifically intended to prevent or stay the judgment from being executed or satisfied while Lachers appealed. On this record, there is no basis to conclude that Lachers' deposit was "deposited in court for the judgment creditor" (§ 685.030, sub d. (d)(2), italics added) or intended as immediate satisfaction of the judgment.
Nor is section 917.1 subdivision (b) of any assistance to Lachers. Section 917.1 provides: "(a) Unless an undertaking is given, the perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the judgment or order is for any of the following: [¶] (1) Money or the payment of money . . . . [¶] . . . . (b) The undertaking shall be on condition that if the judgment or order or any part of it is affirmed or the appeal is withdrawn or dismissed, the party ordered to pay shall pay the amount of the judgment or order, or the part of it as to which the judgment or order is affirmed, as entered after the receipt of the remittitur, together with any interest which may have accrued pending the appeal and entry of the remittitur, and costs which may be awarded against the appellant on appeal. This section shall not apply in cases where the money to be paid is in the actual or constructive custody of the court; and such cases shall be governed, instead, by the provisions of Section 917 .2." (Italics added.) The deposit of funds into the custody of the court is thus subject to section 971.2, not 917.1.
Section 695.220 specifies the order in which money received in satisfaction of a nonsupport money judgment is to be credited. In particular, payments are first applied to accrued interest and the remaining balance to principal; any portion of the principal remaining unpaid continues to draw interest. (§ 695.220, sub ds. (b), (d); Big Bear Properties, Inc. v. Gherman (1979) 95 Cal. App.3d 908, 915.)
D. Ownership of World Trade Property
The trial court ruled there was no judgment lien on the World Trade property because the record demonstrated that Pamela Lacher had filed a deed transferring the property to DSG trust before appellants had recorded their abstract of judgment. It ruled that the question of whether a judgment lien was placed on the property depended upon whether the trust was a revocable intervivos trust, a question that had not been addressed by the parties.
In opposing Lachers' motion for partial satisfaction, appellants demonstrated they received their small claims judgment in January 2002, and that on February 27, 2002, Pamela Lacher filed a grant deed transferring the World Trade property, to which Pamela Lacher held title as an unmarried woman, to DSG trust. The transfer was for "no consideration" and the grant deed was filed two days after appellants had personally served Pamela Lacher with a notice to appear for a debtor's exam. Appellants also submitted escrow documents pertaining to the refinance of the World Trade property triggering Lachers' motion for partial satisfaction, specifically, Maritime escrow instructions dated December 12, 2005, stating that "The title policy is to show the title to the [World Trade] property to be vested in: [¶] Pamela G. Lacher, an unmarried woman." Lacher presented no conflicting evidence.
In view of this evidence, the question of whether the World Trade property is subject to levy does not solely depend on the type or nature of the trust. Evidence that title to the property was to be vested in Pamela Lacher individually raises a factual question as to whether she has an interest – whether it be present, future, vested, contingent, legal, or equitable – to render it subject to appellants' judgment lien. (§ 697.340; Federal Deposit Ins. Corp. v. Charlton (1993)17 Cal. App.4th 1066, 1069 [subject to exceptions, real property lien created by recorded abstract of judgment "attaches to all interests (whether present or future, vested or contingent, legal or equitable) owned by the judgment debtor in real property in the county in which the abstract is recorded"]; Ahart, Cal. Practice Guide: Enforcing Judgments and Debts (The Rutter Group 2007) § 6:157.)
DISPOSITION
The order is reversed and the trial court directed to enter a new order denying Lachers' motion for partial satisfaction and for a determination of the proper amount of attorney fees on appeal in accordance with this opinion. In addition to attorney fees, appellants shall recover costs on appeal.
WE CONCUR: HUFFMAN, Acting P. J., McDONALD, J.