Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Imperial County, Super. Ct. No. ECU05055 Joseph W. Zimmerman, Judge.
HALLER, J.
Ed Lugo, Jr., appeals after the court denied his motion to vacate a renewal of judgment. (Code Civ. Proc., § 683.110, et seq.) We reverse and remand with directions.
All further statutory references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL SUMMARY
On May 26, 1989, the court entered a $105,231.34 judgment against Lugo and in favor of Dan Cameron, Dale Lillywhite, and Mario Saikhon. The judgment was renewed on March 9, 1999.
Ten years later, on March 9, 2009, attorney Neil Gerber filed a second application for renewal of the judgment. Gerber identified the three plaintiffs on the 1989 judgment (Cameron, Lillywhite, and Saikhon) as the "Applicant[s]" on the application. Gerber did not state, however, that these three individuals had died at least five years earlier. Cameron died in November 1994; Lillywhite died in September 2003; and Saikhon died in March 2003. Instead, on the Judicial Council form seeking renewal of the judgment, Gerber listed the three deceased individuals as the "Applicant[s]."
Within 30 days, Lugo moved to vacate the renewal of judgment based on the fact that each "Applicant" was deceased and did not have the capacity to enforce the judgment by seeking a renewal. Lugo argued that under the relevant statutes, a motion to renew a judgment after a judgment creditor's death may be enforced only by "the judgment creditor's executor or administrator or successor in interest, " and not in the name of the deceased individual. (See § 686.010.) Lugo submitted copies of death certificates for each of these individuals.
In opposing the motion, Lowell Sutherland, Gerber's law partner, submitted his declaration stating he had received "approval" from certain individuals to renew the judgment. Specifically, Sutherland stated:
"I acted for the Dan E. Cameron Living Trust, by receiving approval from Paul Cameron, Trustee in renewing the judgment in this action. The Dan E. Cameron Living Trust is the successor in interest to Dan Cameron.
[¶]... I acted for the Lillywhite Family Trust, by receiving approval from Daniel H. Lillywhite, II, Trustee in renewing the judgment in this action. The Lillywhite Family Trust is the successor in interest to Dale Lillywhite. [¶]... Daniel H. Lillywhite, II, authorized me to file the renewal of judgment as one of the owners of Lillywhite Land & Cattle Company.
[¶]... I acted for the... Saikhon Family Trust, by receiving approval from Dora Saikhon, Trustee, in renewing the judgment in this action. The Saikhon Family Trust is the successor in interest to Mario Saikhon. [¶]... Dora Saikhon authorized me to file the renewal of judgment as the owner of Mario Saikhon, Inc."
But Sutherland did not substitute any of these identified individuals or entities as the applicant on the application to renew the judgment.
After a hearing and taking the matter under submission, on June 30, 2009, the court denied Lugo's motion to vacate the renewed judgment. In a written order, the court stated it "finds that the attorney for plaintiffs renewed the judgment in this matter in the name of the deceased judgment creditors, at the behest of the deceased judgment creditors successors in interest. This would appear to be in compliance with [section] 686.010."
Lugo appeals. In his February 8, 2010 opening brief, Lugo reiterated his contention that the application for renewal was invalid because it was filed in the name of the deceased judgment creditors, and the attorneys had made no attempt to substitute the proper parties in the application. Lugo also asserted that attorneys Sutherland and Gerber had no standing to respond to the appeal in the name of their deceased clients.
On March 10, 2010, Sutherland filed a respondent's brief as "Attorney for Respondents Dan Cameron, et al." In the brief, Sutherland acknowledged that Dan Cameron and the other two respondents were deceased, but stated that the failure to name the proper parties was merely a "technical lapse" and that he would file with this court "declarations in compliance with Code of Civil Procedure section 377.32." Section 377.32 provides that a successor in interest who seeks to continue a pending action or proceeding, must file a declaration under penalty of perjury containing certain specified information.
Section 377.32, subdivision (a) states: "The person who seeks to commence an action or proceeding or to continue a pending action or proceeding as the decedent's successor in interest under this article, shall execute and file an affidavit or a declaration under penalty of perjury under the laws of this state stating all of the following: [¶] (1) The decedent's name. [¶] (2) The date and place of the decedent's death. [¶] (3) 'No proceeding is now pending in California for administration of the decedent's estate.' [¶] (4) If the decedent's estate was administered, a copy of the final order showing the distribution of the decedent's cause of action to the successor in interest. [¶] (5) Either of the following, as appropriate, with facts in support thereof: [¶] (A) 'The affiant or declarant is the decedent's successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) and succeeds to the decedent's interest in the action or proceeding.' [¶] (B) 'The affiant or declarant is authorized to act on behalf of the decedent's successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) with respect to the decedent's interest in the action or proceeding.' [¶] (6) 'No other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding.' [¶] (7) 'The affiant or declarant affirms or declares under penalty of perjury under the laws of the State of California that the foregoing is true and correct.' "
Twenty days later, Lugo filed his reply brief, noting that Sutherland still had not filed a substitution of parties or the required section 377.32 declarations, and had no legal capacity to represent the interest of his deceased clients.
About three weeks later, Sutherland filed, on behalf of three sets of parties (Dora Saikhon; Paul Cameron & Debbie Cameron Huddelston; and Margaret Lillywhite), declarations under section 377.32 with respect to each judgment creditor. Sutherland, however, did not seek to substitute these parties as respondents in the appeal. Moreover, as discussed below, these individuals were not the same parties from whom Sutherland said he received authorization to file the renewal of judgment application.
As to judgment creditor Mario Saikhon, Dora Saikhon's declaration stated: "I am the successor in interest to MARIO SAIKHON (as defined in Section 377.11...) and I succeed to the decedent's interest in the action or proceeding. No other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding." As to judgment creditor Dan Cameron, the declaration, signed by Paul Cameron and Debbie Cameron Huddleston, stated: "The decedent died on November 17, 1994.... [¶]... There is no proceeding now pending in California for administration of the decedent's estate.... [¶]... No other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding." As to judgment debtor Dale Lillywhite, Margaret Lillywhite's declaration stated: "The decedent died on September 30, 2003.... [¶]... There is no proceeding now pending in California for administration of the decedent's estate.... [¶]... I am the successor in interest to Dale Lillywhite (as defined in Section 377.11...) and I succeed to the decedent's interest in the action or proceeding. No other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding."
DISCUSSION
I. Legal Principles Pertaining to Judgment Enforcement
A money judgment is enforceable within 10 years after entry of judgment. (§ 683.020; Fidelity Creditor Service, Inc. v. Browne (2001) 89 Cal.App.4th 195, 200.) After that time, 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, subd. (a).)
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. (§ 683.120.) A judgment creditor must serve the judgment debtor with a notice of renewal. (§ 683.160.)
Within 30 days of service of a notice to renew a judgment, the judgment debtor may move to vacate the renewal. (§ 683.170.) The court may vacate the renewal "on any ground that would be a defense to an action on the judgment...." (§ 683.170, subd. (a).) "Upon the hearing of the motion, the renewal may be ordered vacated upon any ground provided in subdivision (a), and another and different renewal may be entered...." (§ 683.170, subd. (c).)
Where, as here, the judgment creditor dies before enforcement of the judgment, section 686.010 provides that the judgment may be enforced "by the judgment creditor's executor or administrator or successor in interest." (§ 686.010.) The successor should substitute his or her name as the real party in interest in the enforcement proceedings. (See §§ 367, 377.31.)
II. Analysis
The application for renewal of judgment filed by Attorney Gerber did not comply with the applicable statutes. One applicant (Cameron) had been deceased for 15 years, and the other two applicants (Lillywhite and Saikhon) had been deceased for six years. Under section 686.010, these parties' successors should have substituted as the judgment creditors.
Renewing the judgment in the name of deceased parties constitutes a statutory basis for vacating the renewal. Section 683.170, subdivision (a) provides the "renewal of a judgment pursuant to this article may be vacated on any ground that would be a defense to any action on the judgment...." Generally, a valid defense to an action on a judgment is that the action is not brought by the proper party. (See Redevelopment Agency of San Diego v. San Diego Gas & Electric Co. (2003) 111 Cal.App.4th 912, 920-921.) A defendant has a statutory right to have an action prosecuted against him or her 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.) It is undisputed that there was never an appropriate substitution of the real party in interest in this case when the renewal was filed. Thus, the fact that the wrong party is bringing or continuing an enforcement action is a defense to an action on the judgment, and thus constituted a basis for vacating the renewal of judgment. (§ 683.170, subd. (a).)
The failure to substitute a successor for a deceased party is not a reversible error if there was no prejudice to the defendant. (See Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950, 957; Kaley v. Catalina Yachts (1986) 187 Cal.App.3d 1187, 1194-1195.) "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.) 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.; see Sacks, supra, 7 Cal.App.4th at pp. 957-960 .)
But in this case it would be improper to affirm on a harmless error analysis. Most important, it is unclear whether there are proper parties who intend to substitute as judgment creditors, and the identity of those parties. No effort has been made to file a proper substitution, although 15 years have passed since the first creditor's death, two renewals have been filed, and it has been more than one year since Lugo raised the objection as to the capacity of the deceased parties' attorney to renew the judgment. Although Attorney Sutherland recently filed declarations seeking to establish the successors in interest, there has been no attempt to substitute these parties as respondents in the appeal.
Of even greater concern, Sutherland's declaration filed in superior court identifies certain parties different from the parties who now claim to be successors in the section 377.32 declarations. For example, in his declaration below, with respect to judgment creditor Dale Lillywhite, Sutherland stated he received approval to file the renewal from Daniel H. Lillywhite II, as one of the owners of Lillywhite Land & Cattle Company, and that the Lillywhite Family Trust is the successor in interest to Dale Lillywhite. However, in her declaration recently filed with this court, Margaret Lillywhite states that she is the successor in interest to Dale Lillywhite, and does not mention the existence of a family trust.
Likewise, in his declaration below, Sutherland stated that the Dan E. Cameron Living Trust is the successor in interest to Dan Cameron, and he received authorization from Paul Cameron, Trustee to file the renewal. However, in the declarations filed in this court, Paul Cameron and Debbie Cameron Huddleston signed a declaration indicating that "[n]o other person has a superior right to commence the action, " but did not specifically identify the Dan E. Cameron Living Trust as the successor in interest, or state that they are the successors in interest.
Further, with respect to judgment creditor Mario Saikhon, in his declaration below Sutherland stated that the Saikhon Family Trust is the successor in interest to Mario Saikhon, and that Dora Saikhon authorized him to file the renewal of judgment as the owner of Mario Saikhon, Inc. However, in her declaration filed with this court, Dora Saikhon states that she is the successor in interest, and did not mention that she is a trustee of the Saikhon Family Trust, or that this trust is a successor in interest.
Based on these filings, the record is unclear as to the precise identification of the parties who have a right to pursue the renewal of judgment. Thus, the court's renewal of the judgment in the name of the deceased applicants cannot be considered harmless error.
Additionally, this case is different from Hogan v. Superior Court (1925) 74 Cal.App. 704, relied upon by Sutherland. In Hogan, the defendant moved to prohibit the enforcement of a judgment because an executor was the named plaintiff in the judgment even though the estate had closed before the judgment was entered. (Id. at pp. 706-707.) The court rejected this challenge, reasoning that the proceeding was a collateral attack on a judgment, and a collateral attack cannot succeed unless the judgment is void on its face. (Id. at p. 708.) The court concluded that the failure to substitute the real party in interest after the death of a party means that the judgment "is voidable" and not void in the jurisdictional sense. (Id. at pp. 709-710.)
These principles are inapplicable here because Lugo's motion to vacate the renewal of the judgment is a direct, and not an indirect, challenge to the renewal. Lugo timely sought to vacate the renewal of the judgment. Thus, Lugo is not required to show that the renewal of judgment was void in the jurisdictional sense.
III. Conclusion
In ruling on Lugo's timely challenge to the renewal of the judgment, the court erred in permitting the renewal to remain in the names of the judgment creditors who died more than 15 years (Cameron) and five years (Lillywhite and Saikhon) earlier. The court should have granted Lugo's motion to vacate the renewal of judgment. (§ 683.170, subd. (a).)
In reaching this conclusion, we are aware that section 683.170 allows a court to grant a motion to vacate a renewal, but then to permit the judgment creditor to enter "another and different" renewal of judgment. (§ 683.170, subd. (c).) On remand, the trial court has the authority to decide whether this procedure would be applicable in this case. Specifically, the court may wish to provide a reasonable time for parties to file the requisite substitutions. If and when the proper substitutions are filed, the court may then decide whether it is appropriate to order a renewal of judgment to be filed in the correct judgment creditor names. (§ 683.170, subd. (c).)
In so ruling, we remind counsel that because collection activities cannot be pursued in the name of a person who has died, counsel has the obligation to ensure the real party in interest has been substituted in the action before continuing the litigation or collection activities.
DISPOSITION
We reverse the order denying Lugo's motion to vacate the renewal of judgment. Upon remand, the court is directed to vacate the renewal of judgment and consider whether to permit "another and different" renewal of judgment. (See § 683.170, subd. (c).) Lugo is entitled to recover his costs on appeal.
WE CONCUR: HUFFMAN, Acting P. J., McINTYRE, J.