Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. GIN045270, Michael B. Orfield, Judge.
McDONALD, Acting P. J.
Defendant Dolores M. Graboski (Dolores) appeals a judgment entered after the trial court granted the motion for summary judgment filed by plaintiff Sharon Erline Graboski (Sharon) in her quiet title action against Dolores. In January 2003, Sharon and John J. Graboski (John) acquired, as joint tenants, certain real property in San Diego County, California. In June 2003, John died. In September 2003, Dolores recorded in San Diego County an abstract of a judgment against John that had been issued in 1981 by the San Mateo County Superior Court based on a 1977 Minnesota child support judgment against John. On appeal of the judgment, Dolores contends the trial court erred because: (1) a child support judgment is enforceable against the estate of a deceased joint tenant until paid in full; (2) public policy supports enforcement of child support judgments; and (3) there is a triable issue of fact regarding the amount of child support paid by John.
FACTUAL AND PROCEDURAL BACKGROUND
In 1966, John and Dolores were married. In 1977, they were divorced in Minnesota. The divorce judgment required John to pay Dolores $200 per month for child support for each of their two children (then seven and 10 years old).
In 1978, John married Sharon. In September 1981, Dolores registered the Minnesota judgment in the San Mateo County Superior Court, at which time John was $7,200 in arrears on his child support payments. In or about January 2003, John and Sharon purchased a home in San Diego County (Property). On January 29, a grant deed was recorded pursuant to which the sellers conveyed title to the Property to "John J. Graboski and Sharon E. Graboski, Husband and Wife, as Joint Tenants." On June 30, John died. On September 3, Dolores obtained an abstract of the 1981 judgment issued by the San Mateo County Superior Court, which abstract listed the Property's address as John's last known address. On September 8, Dolores recorded that abstract of judgment in San Diego County.
On February 25, 2004, Sharon recorded in San Diego County an affidavit of death of joint tenant regarding the Property, attaching a copy of the death certificate reflecting John's death on June 30, 2003.
On June 13, Sharon filed the complaint to quiet title against Dolores's claims to the Property pursuant to the abstract of judgment or otherwise. The complaint alleged that on John's death on June 30, 2003, "the [P]roperty became [Sharon's] by right of survivorship, free of the judgment lien against the interest of the deceased joint tenant [i.e., John]."
Sharon filed a motion for summary judgment, arguing that on John's death on June 30, 2003, his joint tenancy interest in the Property terminated and she then became the sole owner of the Property by operation of law. Because the abstract of judgment was recorded after John's death, the ostensible lien of Dolores's judgment against John's property did not attach to any interest of John in the Property. She further argued: "Because John's joint interest in the Property terminated upon his death instead of passing to Sharon upon his death by testate or intestate succession, no interest in the Property was or is part of John's estate." Therefore, she argued the Property is not liable for John's debt evidenced by the child support judgment. In support of her motion for summary judgment, Sharon submitted a separate statement of undisputed material facts, substantially as described above. Dolores submitted a separate statement in opposition to Sharon's separate statement, which did not dispute the material facts described above.
The trial court issued a tentative ruling granting Sharon's motion for summary judgment, stating in part:
"[T]he court finds on the merits, and as a matter of law, that at the time [Dolores] attempted to establish an interest in [the Property], [the Property] had already vested in [Sharon] through right of survivorship in the joint tenancy as her separate property. Thus, the lien of the judgment never attached to an interest of [John] in [the Property].
"Further, the court finds that although an order for child support survives the death of the noncustodial parent and becomes a charge on his estate, [Dolores] has failed to offer evidence sufficient to create a triable issue of fact that any 'estate' of [John] presently exists."
On December 1, 2006, after the trial court heard arguments of counsel on Sharon's motion for summary judgment and its tentative ruling, the court confirmed its tentative ruling granting Sharon's motion for summary judgment. On December 21, the trial court entered judgment for Sharon, quieting her title to the Property "against any and all claims of [Dolores], including without limitation that certain Abstract of Judgment recorded by [Dolores] on September 8, 2003, in the Official Records of San Diego County . . . ." Dolores timely filed a notice of appeal.
DISCUSSION
I
Summary Judgment Standard of Review
"On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. [Citations.]" (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) "The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citation.]" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).)
Aguilar clarified the standards that apply to summary judgment motions under Code of Civil Procedure section 437c. (Aguilar, supra, 25 Cal.4th at pp. 843-857.) Generally, if all the papers submitted by the parties show there is no triable issue of material fact and the " 'moving party is entitled to a judgment as a matter of law' " (Code Civ. Proc., § 437c, subd. (c)), the court must grant the motion for summary judgment. (Aguilar, supra, at p. 843.) Code of Civil Procedure section 437c, subdivision (p)(1) states:
"A plaintiff . . . has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff . . . has met that burden, the burden shifts to the defendant . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant . . . may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto."
Aguilar made the following observations:
"First, and generally, from commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. . . . There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. . . .
"Second, and generally, the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. . . . A prima facie showing is one that is sufficient to support the position of the party in question. . . .
"Third, and generally, how the parties moving for, and opposing, summary judgment may each carry their burden of persuasion and/or production depends on which would bear what burden of proof at trial. . . . [I]f a defendant moves for summary judgment against . . . a plaintiff [who would bear the burden of proof by a preponderance of the evidence at trial], [the defendant] must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not--otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact." (Id. at pp. 850-851, fns. omitted.)
Aguilar stated:
"To speak broadly, all of the foregoing discussion of summary judgment law in this state, like that of its federal counterpart, may be reduced to, and justified by, a single proposition: If a party moving for summary judgment in any action . . . would prevail at trial without submission of any issue of material fact to a trier of fact for determination, then he should prevail on summary judgment. In such a case, . . . the 'court should grant' the motion 'and avoid a . . . trial' rendered 'useless' by nonsuit or directed verdict or similar device. [Citations.]" (Id. at p. 855, italics added.)
"On appeal, we exercise 'an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.' [Citation.] 'The appellate court must examine only papers before the trial court when it considered the motion, and not documents filed later. [Citation.] Moreover, we construe the moving party's affidavits strictly, construe the opponent's affidavits liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it.' [Citations.]" (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1201-1202.)
II
Joint Tenancy in General
"The estate of joint tenancy is firmly embedded in centuries of real property law and in the California statute books." (Tenhet v. Boswell (1976) 18 Cal.3d 150, 160.) "A joint tenancy is a joint interest owned by two or more persons, who have equal interests among themselves. [Citations.] The joint tenants must share unity of time, title, interest and possession. A distinctive feature of joint tenancy, as opposed to other interests in land, is the right of survivorship. This means that when one joint tenant dies, the entire estate belongs automatically to the surviving joint tenant(s). [Citations.] Nothing 'passes' from the deceased joint tenant to the survivor; rather, the survivor takes from the instrument by which the joint tenancy was created. [Citations.]" (Grothe v. Cortlandt Corp. (1992) 11 Cal.App.4th 1313, 1317.) "Survivorship is one of the incidents of joint tenancy, and unless the estate [i.e., joint tenancy] is terminated before the death of a joint tenant, the executor of the decedent [joint tenant] has no interest in the property." [Citation.]" (Estate of Zaring (1949) 93 Cal.App.2d 577, 579-580.)
Civil Code section 683, subdivision (a) provides: "A joint interest is one owned by two or more persons in equal shares, by a title created by a single will or transfer, when expressly declared in the will or transfer to be a joint tenancy . . . ." However, "[t]his statute [Civ. Code, § 683], requiring an express declaration for the creation of joint interests, does not abrogate the common law rule that four unities are essential to an estate in joint tenancy: unity of interest, unity of time, unity of title, and unity of possession. [Citations.]" (Tenhet v. Boswell, supra, 18 Cal.3d at p. 155.)
In Zeigler v. Bonnell (1942) 52 Cal.App.2d 217 (Zeigler), the court addressed the following question:
"Where real property is held by joint tenants, one of whom is a judgment debtor, and the judgment debtor dies prior to a levy of execution but after an abstract of the judgment has been recorded, and a levy of execution is made after the death of the judgment debtor against the interest of the debtor, does the purchaser at the execution sale secure any rights in the property, or does the surviving joint tenant take the entire property free and clear of the lien of the judgment?" (Zeigler, supra, at p. 219.)
Zeigler noted: "The right of survivorship is the chief characteristic that distinguishes a joint tenancy from other interests in property. The surviving joint tenant does not secure that right from the deceased joint tenant, but from the devise or conveyance by which the joint tenancy was first created. [Citation.] While both joint tenants are alive each has a specialized form of a life estate, with what amounts to a contingent remainder in the fee, the contingency being dependent upon which joint tenant survives." (Zeigler, supra, at pp. 219-220.) Zeigler held that a judgment lien "prior to execution" did not sever the joint tenancy. (Id. at pp. 219- 222.) On the death of the debtor joint tenant, there remained no interest or property right against which the judgment lien could operate. (Id. at pp. 220-222.) "If the judgment debtor is the first to die, the lien is lost." (Id. at p. 221.) Alternatively stated, if the judgment creditor waits to levy on the property until after the debtor joint tenant's death, "the deceased joint tenant had no interest in the property [at that time], and his judgment creditor has no greater rights." (Id. at p. 220.)
III
Dolores's Abstract of Judgment
Dolores contends her child support judgment remained enforceable against John's estate after his death. However, assuming arguendo that is a correct statement, she does not show the Property was part of John's estate. John's joint tenancy interest in the Property terminated on his June 30, 2003, death and Sharon then automatically became the sole owner of the fee pursuant to the January 29, 2003, grant deed. When Dolores recorded the abstract of judgment in San Diego County on September 8, 2003, neither John nor his estate had any interest in the Property and therefore Dolores could not levy on the Property by writ of execution or otherwise execute her ostensible judgment lien.
A
As discussed above, "[w]hile both joint tenants are alive each has a specialized form of a life estate, with what amounts to a contingent remainder in the fee, the contingency being dependent upon which joint tenant survives." (Zeigler, supra, 52 Cal.App.2d at p. 220.) "[W]hen one joint tenant dies, the entire estate belongs automatically to the surviving joint tenant(s). [Citations.] Nothing 'passes' from the deceased joint tenant to the survivor; rather, the survivor takes from the instrument by which the joint tenancy was created. [Citations.]" (Grothe v. Cortlandt Corp., supra, 11 Cal.App.4th at p. 1317.) Therefore, "unless the estate [i.e., joint tenancy] is terminated before the death of a joint tenant, the executor of the decedent [joint tenant] has no interest in the property. [Citation.]" (Estate of Zaring, supra, 93 Cal.App.2d at pp. 579-580.) Accordingly, if a judgment creditor does not execute on a judgment lien prior to the debtor joint tenant's death, the lien is lost because there remained no interest or property right of the deceased debtor against which the judgment lien could operate. (Zeigler, at pp. 220-222.)
In the circumstances of this case, John's joint tenancy interest in the Property terminated on his death on June 30, 2003. By automatic operation of the terms of the joint tenancy created by the January 29 grant deed, Sharon automatically became the sole owner of the fee interest in the Property on June 30. John's estate did not have any interest in the Property after his death on June 30. When Dolores recorded the abstract of judgment in San Diego County on September 8, neither John nor his estate had any interest in the Property. Accordingly, that abstract of judgment was entirely ineffective in creating a lien on the Property. We conclude the trial court properly concluded that, as a matter of law, Dolores's abstract of judgment never created a lien on the Property. (Grothe v. Cortlandt Corp., supra, 11 Cal.App.4th at p. 1317; Zeigler, supra, 52 Cal.App.2d at pp. 220-222; Estate of Zaring, supra, 93 Cal.App.2d at pp. 579-580.)
Sharon also asserts that after John's death Dolores could not create any judgment lien on the Property, or execute thereon, pursuant to the Enforcement of Judgments Law (Code Civ. Proc., § 680.010 et seq.) and therefore should have, instead, made any claim for unpaid child support against John's estate pursuant to the Probate Code. Because we concluded above that Sharon became the sole owner of the Property automatically on June 30, 2003, and therefore Dolores could not thereafter impose a lien on the Property, we need not specifically address Sharon's additional assertion. Nevertheless, we do not doubt that Sharon's assertion is correct. Code of Civil Procedure section 686.020 provides: "After the death of the judgment debtor, enforcement of a judgment against property in the judgment debtor's estate is governed by the Probate Code, and not by this title [i.e., the Enforcement of Judgments Law]." Furthermore, as Sharon notes, Probate Code section 9300, subdivision (a) provides: "Except as provided in Section 9303, after the death of the decedent all money judgments against the decedent or against the personal representative on a claim against the decedent or estate are payable in the course of administration and are not enforceable against property in the estate of the decedent under the Enforcement of Judgments Law . . . ." Probate Code section 9303 provides: "If property of the decedent is subject to an execution lien at the time of the decedent's death, enforcement against the property may proceed under the Enforcement of Judgments Law . . . to satisfy the judgment. . . ." However, because Dolores did not record the abstract of judgment in San Diego County until after John's death, that exception to Probate Code section 9300 does not apply in this case.
To the extent Dolores argues Zeigler is factually inapposite because it involved a money judgment rather than a child support judgment, she does not carry her burden on appeal to show that factual difference precludes the application of Zeigler's legal principles regarding joint tenancy and enforcement of judgments in the circumstances of this case.
B
Dolores argues we should create an exception to the "Zeigler rule" that a judgment creditor's lien cannot be executed on property after the debtor joint tenant's death. Citing a federal Medicaid statute that allows the government to, in certain circumstances, effectively seek reimbursement against a surviving joint tenant's interest in property for Medicaid overpayments made for a deceased joint tenant by defining the deceased joint tenant's "estate" to include his or her (former) joint tenancy interest in that property, Dolores argues a child support judgment creditor should have that same power. (See, e.g., 42 U.S.C. § 1396p(b)(4)(B); Belshé v. Hope (1995) 33 Cal.App.4th 161, 164, 173-175; California Advocates for Nursing Home Reform v. Bonta΄ (2003) 106 Cal.App.4th 498, 511-513.)
In 1993, the United States Congress amended 42 U.S.C. § 1396p(b)(4)(B) to expand the definition of "estate" for purposes of obtaining reimbursement for Medicaid overpayments to include: "at the option of the State . . . any other real and personal property and other assets in which the individual had any legal title or interest at the time of death (to the extent of such interest), including such assets conveyed to a survivor, heir, or assign of the deceased individual through joint tenancy, . . . survivorship, . . . or other arrangement." (42 U.S.C. § 1396p(b)(4)(B); see Belshé v. Hope, supra, 33 Cal.App.4th at p. 174.)
However, we decline Dolores's invitation to judicially create an exception to long-established rules regarding joint tenancy and enforcement of judgments in cases involving child support judgments. To the extent Dolores believes the public policy underlying the expanded definition of "estate" for Medicaid overpayment reimbursement purposes, as referenced above, is similar to, and would support, a similar expansion of a child support judgment creditor's rights, she should direct that suggested change to established statutory and case law to the Legislature, which is the proper forum for considering public policy concerns. Until the Legislature enacts legislation reflecting Dolores's suggested changes, we must abide by the long-established statutory and common law rules regarding joint tenancy and enforcement of judgments. (Peterson v. Superior Court (1995) 10 Cal.4th 1185, 1195-1196 [discussing doctrine of stare decisis].)
Likewise, to the extent Dolores argues the public policy underlying title 26 United States Code section 2035 also supports her suggested changes to long-established statutory and common law rules regarding joint tenancy and enforcement of judgments, we decline to judicially create changes that should instead be proposed to the Legislature. (For federal estate tax purposes, 42 U.S.C. § 2035 includes in a decedent's gross estate certain transfers of interests of property made by a decedent within three years before his or her death. In any event, that statute apparently is not comparable or applicable to the facts in this case because John and Sharon purchased the Property as joint tenants and John did not transfer any interest therein before his death.)
Similarly, Dolores suggests the public policy underlying statutes allowing a child support judgment creditor to reach a debtor beneficiary's interest in a trust is similar to, and would support, a similar expansion of a child support judgment creditor's rights to reach a surviving joint tenant's interest in property. (See, e.g., Prob. Code, § 15305; Ventura County Dept. of Child Support Services v. Brown (2004) 117 Cal.App.4th 144, 151-155.) Although under Probate Code section 15305 "[s]upport claimants are preferred creditors and entitled to rights unavailable to a general creditor" (Brown, at p. 151), neither that statute nor its underlying public policy requires that we apply its rule regarding an interest in a trust to a joint tenancy interest. We decline to judicially create Dolores's suggested changes to long-established statutory and common law rules regarding joint tenancy and enforcement of judgments. The Legislature is the proper forum for considering such public policy concerns and suggested changes. Until the Legislature enacts legislation reflecting Dolores's suggested changes, we must abide by the long-established statutory and common law rules regarding joint tenancy and enforcement of judgments as discussed above. (Peterson v. Superior Court, supra, 10 Cal.4th at pp. 1195-1196 [discussing doctrine of stare decisis].)
C
Because Dolores has not carried her burden on appeal to show there are triable issues of material fact and Sharon is not entitled to judgment as a matter of law, the trial court properly granted Sharon's motion for summary judgment. (Code Civ. Proc., § 437c, subds. (c), (p)(1)); Aguilar, supra, 25 Cal.4th at p. 843.)
Dolores's argument that there is a triable issue of fact regarding the amount of child support paid by John does not preclude summary judgment for Sharon, because Dolores's abstract of judgment did not create a lien on the Property that, after John's death, automatically became Sharon's sole property.
IV
Sharon's Motion for Sanctions
Sharon filed a motion seeking sanctions against Dolores for filing a frivolous appeal pursuant to Code of Civil Procedure section 907 and California Rules of Court, rule 8.276. However, because there is no evidence showing Dolores filed the instant appeal for improper motives or that a reasonable attorney or other person would have concluded the appeal is totally and completely without merit, we decline to impose sanctions against Dolores. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 645-654; cf. In re Marriage of Schnabel (1994) 30 Cal.App.4th 747, 753-754.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: McINTYRE, J. O'ROURKE, J.