Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County Super. Ct. No. N64967, Marshall Hockett, Judge.
HALLER, J.
Michael Bowers appeals after the court denied his motion to vacate a renewal of judgment order. (Code Civ. Proc., § 473, subd. (d); § 683.110.) We affirm.
Further statutory references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL SUMMARY
In September 1995, a jury found Bowers committed fraud and breached his fiduciary duty to Jane Nelson, and awarded $60,200 to Nelson, in her capacity as a trustee of her revocable trust. Two months later, the court entered judgment against Bowers for $60,200 plus costs and attorney fees (the 1995 Bowers judgment). During the next several years, Nelson was unsuccessful in executing on the judgment. Nelson then died on May 24, 2002.
In September 2004, Stacy Rubin, an attorney employed by Kimball, Tirey & St. John (the Kimball law firm), applied for a renewal of the 1995 Bowers judgment. (See § 683.120.) The application identified Nelson as the plaintiff, but did not mention her death. Rubin served Bowers with a notice of the renewal and the application. The notice stated that if Bowers objected to the renewal, he must move to vacate or modify the renewal within 30 days after service of the notice. Bowers did not file any objection; therefore, under the applicable statutes, the renewal was valid and effective. (§§ 683.150, 683.170, 683.180.)
Thereafter, Rubin made numerous attempts to enforce the Bowers judgment, but again Bowers avoided all of these efforts.
In November 2005, Rubin moved for an order to charge Bowers's interest in a limited partnership ("Sequoia") to enforce the 1995 Bowers judgment. Nelson was the named plaintiff on the motion. In support, Rubin submitted her declaration, stating that "[o]n or about October 24, 2005, Plaintiff determined that [Bowers] was a partner in Sequoia . . . ." Rubin also stated that Bowers has never paid any amount to satisfy the judgment.
On December 1, 2005, Bowers (represented by counsel) filed an opposition to the motion to charge the partnership interest, notifying the court that Nelson died in May 2002, and arguing that "[t]here is no capacity on the part of [attorney Rubin] to request the within motion."
In reply, Rubin acknowledged that Nelson had died, but stated that the Kimball law firm was bringing the motion as "attorney of record" for Nelson. Rubin explained that approximately 10 months after Nelson died, Nelson's prior attorney (Richard Bryson) signed a Substitution of Attorney form as "attorney in fact" for Nelson that substituted the Kimball law firm as Nelson's attorney.
Rubin also submitted Bryson's declaration, which stated: "[In March 2003], a Substitution of Attorney was filed with [the] court, [which] I signed . . . as attorney in fact. [¶] . . . As such, I am authorized to act on behalf of the decedent pursuant to California statutory law, which indicates that after the death of the judgment creditor, the judgment may be enforced by the judgment creditor's executor or administrator or successor in interest. . . . § 686.010. [¶] . . . I have instructed [the Kimball law firm] to proceed with collection of the aforementioned money judgment . . . ."
Section 686.010 provides: "After the death of the judgment creditor, the judgment may be enforced as provided in this title by the judgment creditor's executor or administrator or successor in interest."
In February 2006, the court (Commissioner Edlene McKenzie) denied, without prejudice, the motion to charge Bowers's partnership interest. The court stated that although section 686.010 permitted a successor in interest to enforce a judgment after a judgment creditor's death, "[t]he issue before the Court is whether Attorney Richard Bryson, as attorney in fact for Jane Nelson, is a 'successor in interest' within the meaning of CCP Section 686.010. [¶] . . . [¶] [Attorneys Rubin and Bryson] have failed to provide the Court with any evidence and legal authority that establish that because . . . Bryson is attorney in fact for Jane Nelson he automatically becomes a successor in interest within the meaning of [section] 686.010."
One month later, in March 2006, Bowers moved to set aside the September 2004 renewal order, stating that the September 2004 renewal application failed to disclose that Nelson had died and did not provide any information as to whether Nelson had assigned her rights in the judgment to another person. Bowers conceded that under section 686.010 a judgment may be enforced by the judgment creditor's executor, administrator, or successor in interest. However, relying on Commissioner McKenzie's order, Bowers argued that there could not have been a "successor in interest in 2004 able to seek a renewal of judgment." Bowers sought relief under section 473, subdivision (d), which authorizes the trial court to "set aside any void judgment or order."
In response, Rubin argued that "Defendant's motion must be denied as JANE NELSON bequeathed her interest in this judgment to a successor in interest." Rubin stated that "[c]ontrary to [Bowers's] contentions, an executor, administrator or successor in interest does exist in the instant matter and as such, [the Kimball law firm] has a client. . . . In provision 5.3(a) of the Jane Nelson Trust, JANE NELSON bequeathed her interest in the judgment against Defendant BOWERS to be distributed to the American Civil Liberties Union of San Diego [ACLU]." Rubin attached a copy of a page of Nelson's trust stating that Nelson devised her interest in the Bowers judgment to the ACLU. Rubin also argued that Bowers's motion was untimely because, under section 683.170, a judgment debtor must file objections to a renewal order no later than 30 days after service of the notice. Rubin further argued that the motion was in bad faith because the only reason Bowers brought the motion was to avoid enforcement of the judgment.
Rubin also proffered the declaration of Kenneth Hugins, a named successor trustee of Nelson's trust, who stated that the trust designates Nelson's interest in the 1995 Bowers judgment to be distributed to the ACLU. Hugins also asserted that "[a]s successor trustee, I have the authority to act upon Ms. Nelson's behalf with respect to the judgment entered in this case." Rubin, however, did not provide any information showing that she represented Hugins or the ACLU in the judgment enforcement proceedings.
After a hearing, the court (Superior Court Judge Marshall Hockett) denied Bowers's motion to vacate the renewal order. The court found Bryson (as attorney in fact) had the authority to substitute the Kimball law firm as attorney for Nelson after her death, and found that it was proper that an attorney (rather than the party) sign the application for renewal of judgment. The court also found Bowers's motion was untimely because Bowers did not state in his declaration that he was unaware of Nelson's death at the time of the 2004 renewal order. In denying Bowers's motion, the court nonetheless made clear that "this ruling should not be construed as allowing attorney Rubin to continue acting in this case without first identifying her client to the court. Rather, this ruling simply passes on the issue of whether or not [Bowers's] attack on the renewal of judgment is meritorious. Whether she realizes it or not, Ms. Rubin's client is not the ACLU. Unless [the ACLU] clearly are intended beneficiaries of counsel's services, estate heirs and beneficiaries are not the clients of counsel for the estate or trust."
Bowers appeals, challenging the propriety of the court's denial of his section 473, subdivision (d) motion to vacate.
DISCUSSION
I. Legal Principles Pertaining to Judgment Enforcement
A money judgment is enforceable within 10 years after entry of judgment. (§§ 683.020, 683.030; Fidelity Creditor Service, Inc. v. Browne (2001) 89 Cal.App.4th 195, 200.) After that period, all enforcement procedures must cease and any liens based on the judgment are extinguished. (§ 683.020.) To avoid this result and extend the enforcement period, a party must apply for, and obtain, a renewal of judgment within the 10-year period. (§ 683.110.)
A renewal is a ministerial act, and is automatic upon filing of an application executed under oath. (§§ 683.120, 683.150; see Fidelity Creditor Service, Inc. v. Browne, supra, 89 Cal.App.4th at p. 198.) A renewal extends the enforcement period for an additional 10 years. (§ 683.130.) A judgment creditor must serve the judgment debtor with a notice of renewal. (§ 683.160.) Within 30 days of service of the notice, the judgment debtor may move to vacate the renewal. (§ 683.170.) The court may vacate renewal "on any ground that would be a defense to an action on the judgment . . . ." (§ 683.170, subd. (a).)
Where, as here, the judgment creditor dies before enforcement of the judgment, the judgment may thereafter be enforced under these rules "by the judgment creditor's executor or administrator or successor in interest." (§ 686.010.) Generally, the successor should substitute his or her name as the real party in interest in enforcement proceedings. (§§ 367, 377.31.)
II. Section 473 Motion
Bowers acknowledges he did not timely challenge the September 2004 renewal order under the applicable statutes, and thus his sole basis for vacating the order is to establish the order was "void" under section 473, subdivision (d). An order is "void" if the court did not have the fundamental jurisdiction to enter the order, i.e., the court did not have personal jurisdiction over the parties or did not have subject matter jurisdiction over the claim. (See Baron v. Fire Ins. Exchange (2007) 154 Cal.App.4th 1184, 1193 & fn. 7; In re Marriage of Jackson (2006) 136 Cal.App.4th 980, 988.)
Section 473, subdivision (d) provides in relevant part: "[t]he court . . . may, on motion of either party after notice to the other party, set aside any void judgment or order."
Bowers contends the September 2004 renewal order was void because Nelson died before the renewal order was entered and a successor in interest had not been substituted into the case as a party.
Generally, a defendant has a statutory right to have an action prosecuted against him in the name of the real party in interest. (§ 367; Giselman v. Starr (1895) 106 Cal. 651, 657.) "The real party in interest is 'the person possessing the right sued upon by reason of the substantive law.' " (Ventura County Ry. Co. v. Hadley Auto Transport (1995) 38 Cal.App.4th 878, 880.) In this case, the real party in interest was the judgment creditor's executor, administrator, or successor in interest. (§ 686.010.) We agree with Bowers that there was never an appropriate substitution of the real party in interest in this case after Nelson's death. The substitution of attorney changed the representation of the plaintiff but did not substitute a proper plaintiff.
However, California courts have long recognized that if a party dies after a court has jurisdiction over the party, entry of a judgment or an order in the name of the deceased party (instead of the proper successor or representative) is a technical lapse that does not affect the fundamental jurisdiction of the court. (See Martin v. Wagner (1899) 124 Cal. 204, 205 ["In this state . . . it has been decided that when, in his lifetime, jurisdiction of the party and of the subject matter has been acquired, the rendition of a judgment after his death, without substitution of parties, is not void, but at the most erroneous"]; Phelan v. Tyler (1883) 64 Cal. 80, 82 [although judgment in favor of a deceased person is " 'erroneous,' " it is not void and therefore is not subject to collateral attack]; Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950, 957-960 [death of party without substitution of successor does not "automatically render[ ] an ensuing judgment void or voidable"]; Machado v. Flores (1946) 75 Cal.App.2d 759, 762.)
Although in most of these cases the party died before the final judgment was entered, the principle that a death does not eliminate a court's jurisdiction applies equally to a death that occurs during postjudgment enforcement proceedings. The continuation of proceedings in the plaintiff's name after the plaintiff's death is not proper procedure, but the death does not remove the court's jurisdiction over the parties, or render a subsequent judgment or order void.
Further, it is well established that the identification of a nominal party as the plaintiff, instead of the real party in interest, is not a reversible error if there was no prejudice to the defendant. (See Sacks v. FSR Brokerage, Inc., supra, 7 Cal.App.4th at p. 957; Kaley v. Catalina Yachts (1986) 187 Cal.App.3d 1187, 1194.) "The reason for the real party in interest statute is to protect a defendant from a multiplicity of actions predicated on the same gravamen and to preserve to that defendant all personal defenses and counterclaims available." (Kaley, supra, 187 Cal.App.3d at p. 1195.) However, if the defendant is protected from further suit and will have the opportunity to raise all defenses or setoffs against the nominal plaintiff, these objectives have been satisfied and the defendant "can have no further legitimate concern." (Ibid.)
These concepts apply in this case. Bowers's section 473, subdivision (d) motion challenges the renewal of a judgment. The only impact of this renewal is to preclude the judgment from being extinguished. As explicitly stated in the trial court's order, there can be no enforcement of the judgment under this renewal order unless and until there is an identification (and substitution) of the real party in interest. Thus, there is no possible undue prejudice to Bowers if the renewal order continues to remain valid.
Moreover, even if the case remains in the name of the nominal plaintiff (Nelson), any collection efforts will merely result in Bowers paying what he was required to pay more than 10 years ago. The fact that there may be another party who believes he or she is the rightful owner of that debt will have no effect on Bowers's rights and obligations. Bowers would still have the right to assert any defenses to the debt that he would have against the real party in interest, and he will only be required to pay the debt one time. Any subsequent disputes about the rightful successor to the Bowers judgment will be between those parties and will not involve Bowers.
Based on our conclusions that the renewal order was not void, we do not reach respondent's alternate contention that Bowers's section 473 motion was untimely.
As his primary argument on appeal, Bowers contends that the court order denying his section 473, subdivision (d) motion must be reversed because it is inconsistent with Commissioner McKenzie's earlier order denying the motion to charge Bowers's partnership interest. Bowers states that it is a "constitutional principle" that "[a] judgment rendered in one department of the superior court is binding in that matter upon all other departments until such time as the judgment is overturned." However, this rule is inapplicable here because the legal issues in the two proceedings were different. The issue on the motion to charge Bowers's partnership interest was whether there was a proper party seeking to enforce the debt. Commissioner McKenzie properly denied the motion without prejudice until the Kimball law firm could make a proper showing of the identity of its client and whether the client was a successor to the judgment. In contrast, the issue before Judge Hockett on the section 473, subdivision (d) motion was whether the September 2004 renewal order was void, thus allowing Bowers to prevail on a collateral attack extinguishing his debt forever. Judge Hockett assumed the propriety of Commissioner McKenzie's order, but properly concluded that it did not require a vacation of the renewal order.
We also reject Bowers's challenge to the court's ruling upholding the validity of attorney Bryson's 2003 substitution of counsel. There was a sufficient factual basis for the trial court to infer that Bryson had the authority to execute the substitution of attorney form in 2003. In any event, as discussed earlier, this fact does not resolve the legal issue before us because there has been no showing Bryson was an executor, representative, or successor in interest for purposes of enforcing the judgment. Before the judgment is enforced, the judgment creditor must establish his or her standing to execute on the judgment. Contrary to Bowers's contentions, the fact that the Kimball law firm has thus far failed to establish that it currently represents a successor in interest does not mean there is no valid successor, or that the Kimball law firm did not previously represent a valid successor when it renewed the judgment.
In reaching our conclusions in this case, we do not condone the conduct of the Kimball law firm. By repeatedly referring to Jane Nelson in declarations and pleadings as if she were still alive and failing to state the identity of its client (or even if such client exists), the law firm created unnecessary confusion and litigation. It failed to conduct itself in the direct and straightforward manner expected of attorneys, as officers of the court.
DISPOSITION
Order affirmed. The parties to bear their own costs on appeal.
WE CONCUR: BENKE, Acting P. J., NARES, J.