Opinion
B159392.
7-7-2003
LEANN BROWN, Plaintiff and Respondent, v. CATHERINE S. NOONAN et al., Defendants and Appellants.
Jerry H. Vosen for Defendants and Appellants. Freund Brackey & Blakely and Brent H. Blakely for Plaintiff and Respondent.
Catherine S. Noonan and Christine A. Kuchac moved for relief from default in this action for breach of contract and fraud brought against them by interior decorator Leann Brown. The trial court denied the motion as untimely pursuant to Code of Civil Procedure section 585.5, subdivision (b), because it was filed more than 60 days after Noonan and Kuchac were served with notice of a writ of execution. We hold the 60-day period in section 585.5, subdivision (b), is not triggered by service of a writ of execution in the absence of a levy under the writ. Accordingly, we reverse the trial courts order.
All statutory references are to the Code of Civil Procedure unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Brown filed her complaint on May 4, 2001, alleging causes of action for breach of contract, breach of the implied covenant of good faith and fair dealing and fraud against Noonan and Kuchac in connection with Kuchacs failure to pay for home furnishings purchased from Brown and installed in Kuchacs home. Neither Noonan nor Kuchac responded to the complaint, and their defaults were entered on July 23, 2001. Judgment was entered in the amount of $ 22,648 on October 10, 2001.
Brown apparently served Noonan and Kuchac with a copy of what purported to be a writ of execution on November 7, 2001. However, Browns application for that writ had been rejected by the court clerk with the notation "needs to make correction to judgment debtors name" on November 13, 2001. A writ of execution was subsequently issued by the court on January 11, 2002.
The "writ of execution" is not contained in the record. Although it is referred to in a June 4, 2002 minute order, the superior courts civil case summary indicates no writ of execution was actually issued until January 11, 2002.
Noonan and Kuchac filed a motion to vacate and set aside the default judgment on April 9, 2002, arguing the action was commenced in violation of the venue provision of Civil Code section 1812.10. They asserted Browns lawsuit should have been filed in Alameda County, where Kuchac resides and where the goods were purchased and delivered. After a hearing the trial court denied the motion as untimely. The courts June 4, 2002 minute order states, in part, "The motion is untimely filed on 04-09-02. The basis of this motion is CCP section 585.5[, subdivision (b)] which requires this motion to be served and filed within 60 days of notice of writ or levy seeking to enforce the judgment. On 11-07-01 plaintiff served defendants with a writ of execution. Defendants fail to cite any authority to support the contention that notice of issuance of writ or levy does not constitute enforcement of judgment. . . ."
Civil Code section 1812.10 provides in part, "In any action subject to the provisions of this section, concurrently with the filing of the complaint, the plaintiff shall file an affidavit stating facts showing that the action has been commenced in a county or judicial district described in this section as a proper place of the trial of the action. . . ."
Brown asserts she opposed the motion. However, the clerks transcript does not contain her opposition papers.
Noonan and Kuchac filed a motion for reconsideration of the courts ruling on June 6, 2002. That motion was denied on June 6, 2002. This appeal followed.
CONTENTIONS
Noonan and Kuchac contend the trial court erred in ruling service of a writ of execution, without more, is sufficient to trigger the 60-day period for filing a motion for relief from default pursuant to section 585.5, subdivision (b).
DISCUSSION
1. Standard of Review
We normally review the trial courts refusal to vacate a default judgment for abuse of discretion. (Miller v. City of Hermosa Beach (1993) 13 Cal.App.4th 1118, 1135-1136 [motion seeking such relief "lies within the sound discretion of the trial court, and the trial courts decision will not be overturned absent an abuse of discretion"].) However, at the outset, we must determine whether the court applied the correct legal standard to the issue in exercising its discretion, which determination is a question of law for this court. "Of course, the scope of discretion always resides in the particular law being applied; action that transgresses the confines of the applicable principles of law is outside the scope of discretion . . . ." (People v. Parmar (2001) 86 Cal.App.4th 781, 793.)
"When, as here, the facts are not at issue but only statutory interpretation remains, we apply our independent judgment. [Citation.] In interpreting a statute where the language is clear, courts must follow its plain meaning. [Citation.] However, if the statutory language permits more than one reasonable interpretation, courts may consider various extrinsic aids, including the purpose of the statute, the evils to be remedied, the legislative history, public policy, and the statutory scheme encompassing the statute. [Citation.] In the end, we " must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences. [Citation.]" [Citation.] [Citation.]" (Kaiser Foundation Health Plan, Inc. v. Zingale (2002) 99 Cal.App.4th 1018, 1023.)2. The Trial Court Erred in Determining Notice of a Writ of Execution Alone Is Sufficient to Trigger the 60-Day Period Pursuant to Section 585.5, Subdivision (b)
Section 585.5, subdivision (b), provides, "When a default or default judgment has been entered without full compliance with Section 1812.10 or 2984.4 of the Civil Code or subdivision (b) of Section 395, the defendant may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action in the proper court. The notice of motion shall be served and filed within 60 days after the defendant first receives notice of levy under a writ of execution, or notice of any other procedure for enforcing, the default judgment."
On November 7, 2001 Brown apparently served a writ of execution (or a notice of writ of execution) on Noonan and Kuchac. However, there is no indication in the record that a properly issued writ of execution made its way into the hands of a levying officer, or that Noonan and Kuchac were ever served with a notice of levy pursuant to section 700.010. Accordingly, their 60-day time period was not triggered under the first part of section 585.5, subdivision (b), which requires a party to move for relief from default "within 60 days after the defendant first receives notice of levy under a writ of execution . . . ." (Italics added.)
Section 700.010 provides, "(a) At the time of levy pursuant to this article or promptly thereafter, the levying officer shall serve a copy of the following on the judgment debtor: [P] (1) The writ of execution. [P] (2) A notice of levy. [P] . . . [P] (b) Service under this section shall be made personally or by mail."
The second part of the second sentence of section 585.5, subdivision (b), alternatively requires a motion for relief from default to be brought within 60 days of "notice of any other procedure for enforcing the default judgment." (Italics added.) The use of the word "other" is plainly intended to exclude a writ of execution and notice of levy, which are addressed in the preceding clause. Because it is undisputed that Brown has taken no steps to enforce her default judgment other than obtaining a writ of execution, the time for Noonan and Kuchac to move for relief from default was not triggered by this second part, either.
The only way to enforce a money judgment with a writ of execution is by means of levy. A writ of execution is not an enforcement procedure — it is a license to engage in enforcement procedures by means of levy on real or personal property. (See, e.g., §§ 699.080; 699.540 [prescribing required contents of notice of levy].)
The trial court appears to have misread section 585.5, subdivision (b), and therefore erred when it calculated the 60-day period for motion for relief from default from the date Noonan and Kuchac were served with the initial, defective writ of execution. Even if it were valid, the writ of execution, standing alone, would not have been sufficient to start the 60-day period set forth in section 585.5, subdivision (b).3. The Trial Court Did Not Abuse Its Discretion In Finding Section 585.5,Subdivision (b)Applies To This CaseBrown argues section 585.5 is not applicable to the present case because the contract between the parties was not a retail installment contract subject to Civil Code section 1812.10. Noonan and Kuchac do not directly address this issue, but argue section 585.5 applies to their case pursuant to section 395, subdivision (b), which concerns "an action arising from an offer or provision of goods, services, loans or extensions of credit intended primarily for personal, family or household use . . . ."
In denying the motion for relief from default on the merits pursuant to section 585.5, subdivision (b), the trial court implicitly found facts sufficient to apply that section to the instant case. The trial court did not abuse its discretion in making that finding, given that this action indisputably arises from Browns provision of household furnishings and interior decorating services to Noonan and Kuchac.
DISPOSITION
Browns motion for sanctions on appeal is denied. The order of the trial court denying the motion for relief from default is reversed. The case is remanded for a new hearing on the merits of the motion for relief from default and for other proceedings not inconsistent with this opinion. Brown and Noonan are to recover their costs on appeal.
We concur: WOODS, J., and MUNOZ (AURELIO), J.