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Gartrell Construction, Inc. v. Johnson

Court of Appeals of California, Fourth Appellate District, Division Three.
Nov 20, 2003
No. G031628 (Cal. Ct. App. Nov. 20, 2003)

Opinion

G031628.

11-20-2003

GARTRELL CONSTRUCTION, INC., Plaintiff and Appellant, v. BENJAMIN DEAN JOHNSON, Defendant and Respondent.

Haas & Najarian and Patricia G. Rosenberg for Plaintiff and Appellant. Law Offices of Victor Lewis and Victor Lewis for Defendant and Respondent. 1


The trial court concluded a judgment creditors action was barred by the relevant statute of limitations (Code Civ. Proc., § 337.5; all further statutory references are to this code), finding the action accrued on the date of entry of the original judgment. On appeal, the judgment creditor argues the action was timely filed because the statute did not start to run until the judgment became final, i.e., the time for an appeal expired. The contention has merit, and we reverse.

I

Plaintiff Gartrell Construction, Inc. obtained a judgment for approximately $35,000 against defendant Benjamin Dean Johnson in April 1991. Judgment was entered on April 24 and notice of entry of the judgment was served May 8. Defendant had until July 8, 1991 to appeal, but opted not to do so.

On July 5, 2001, plaintiff commenced the current action to collect on the judgment. The complaint alleged plaintiff has collected some monies, but defendant still owed some $50,000 (including post-judgment interest). Defendant demurred, asserting the action was barred by the statute of limitations. The trial court agreed and dismissed the action as untimely filed.

II

The Enforcement of Judgments Law (§ 680.010) prescribes a 10-year limitation period for enforcement of a judgment. Except as otherwise provided by statute, 10 years after the date of entry of a money judgment any enforcement procedures must cease, and any lien pursuant to the judgment is extinguished. (& sect; 683.020.) A judgment may be renewed by application (§ 683.110 et seq.) or by a timely action on the judgment. (§ 683.050.)

Section 683.050 provides: "Nothing in this chapter limits any right the judgment creditor may have to bring an action on a judgment, but any such action shall be commenced within the period prescribed by Section 337.5." Section 337.5 provides a 10-year statute of limitations for "An action upon a judgment or decree of any court of the United States or of any state within the United States."

As the Law Revision Commission Comment to section 683.050 explains, "the 10-year period of enforcement prescribed by Section 683.020 and the renewal procedure provided by Article 2 (commencing with Section 683.110) do not affect the right to bring an action on a judgment. The limitation period for commencing the action is prescribed by Section 337.5. The 10-year period provided by Section 683.020 and the 10-year statute of limitations provided by Section 337.5 are not coterminous. The period prescribed in Section 683.020 commences on the date of entry and is not tolled for any reason. The statute of limitations commences to run when the judgment is final (see Turner v. Donovan [(1942)] 52 Cal.App.2d 236) and may be tolled such as by the debtors absence from the state (see Section 351)." (Cal. Law Revision Com. com., foll. § 683.050, italics added; see Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139 [official comments of California Law Revision Commission persuasive evidence of intent of draftors and legislators]; see also Iliff v. Dustrud (2003) 107 Cal.App.4th 1201, 1208-1209.)

The case cited in the Commissions comment, Turner v. Donovan, quoting Feeney v. Hinckley (1901) 134 Cal. 467, noted the Supreme Court has held the statute of limitations for an action on a judgment "`begins to run only when the right of action has accrued, and this, as has been said and shown, is after final determination on appeal, in the event that an appeal has been taken, or after passage of the time in which an appeal might be taken, in the event that none has been." (Turner v. Donovan, supra, 52 Cal.App.2d at p. 239; see Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 303, and fn. 7.)

At the hearing on the demurrer, the court remarked that Code of Civil Procedure section "683.01 [sic , 683.010] says: Except as otherwise provided, the judgment is enforceable under this title upon entry; and, [sections] 683.050 and 337.5 do not otherwise provide. [¶] Therefore, its my conclusion that the effective date of the statute of limitations is the date of entry." Plaintiffs counsel responded "case law and the law revision commission comment to [section] 683[.]050 is that the statute of limitations does commence when the judgment becomes final with regard to . . . a complaint for action on the judgment." Asked for supporting authority, counsel cited Turner along with two other cases. (Green v. Zissis (1992) 5 Cal.App.4th 1219 [plaintiffs enforcement action timely filed because statute of limitations for an action on a judgment tolled during defendants absence from state pursuant to section 351]; Hoover v. Galbraith (1972) 7 Cal.3d 519, 525-526 [action on judgment, as distinguished from execution on a judgment, may not be commenced until judgment has become final either upon expiration of the period within which an appeal may be taken, or, if an appeal is taken, upon the issuance of the remittitur when the judgment has been affirmed].)

Here, plaintiff filed its action on the judgment on July 5, 2001, within the 10-year deadline. Thus, the action was timely filed and the demurrer was erroneously sustained. The judgment of dismissal is reversed and the trial court is directed to overrule the demurrer. Appellant is entitled to costs on appeal.

WE CONCUR: SILLS, P.J., IKOLA, J.


Summaries of

Gartrell Construction, Inc. v. Johnson

Court of Appeals of California, Fourth Appellate District, Division Three.
Nov 20, 2003
No. G031628 (Cal. Ct. App. Nov. 20, 2003)
Case details for

Gartrell Construction, Inc. v. Johnson

Case Details

Full title:GARTRELL CONSTRUCTION, INC., Plaintiff and Appellant, v. BENJAMIN DEAN…

Court:Court of Appeals of California, Fourth Appellate District, Division Three.

Date published: Nov 20, 2003

Citations

No. G031628 (Cal. Ct. App. Nov. 20, 2003)