Opinion
D071582
11-20-2017
T.D. SERVICES COMPANY, Plaintiff, v. ANTON EWING, Defendant and Appellant; WILLIAM D. GORE, as Sheriff, etc., Claimant and Respondent.
Anton Ewing, in pro. per., for Defendant and Appellant. Office of the Sheriff, Robert P. Faigin, Sanford A. Toyen and English R. Bryant, for Claimant and Respondent William D. Gore, as Sheriff, etc.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. GIN052749) APPEAL from an order of the Superior Court of San Diego County, Robert P. Dahlquist, Judge. Affirmed. Anton Ewing, in pro. per., for Defendant and Appellant. Office of the Sheriff, Robert P. Faigin, Sanford A. Toyen and English R. Bryant, for Claimant and Respondent William D. Gore, as Sheriff, etc.
In this case a judgment creditor timely filed an application to extend the enforceability of his judgment under the provisions of Code of Civil Procedure section 683.110 et seq.; the judgment debtor moved to vacate the extension under section 683.170, and the trial court denied his motion.
All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.
We affirm. The judgment debtor did not establish any grounds for denying enforcement of the judgment within the meaning of section 683.170, and hence the trial court did not err in denying his motion. In particular, the judgment debtor failed to show the judgment creditor was the party to any subsequent settlement, which discharged the judgment. The fact that the amount of the extended judgment was smaller than what he owed did not prejudice the judgment debtor. We also reject the judgment debtor's claim that extension of the judgment was barred by the doctrine of laches.
FACTUAL AND PROCEDURAL BACKGROUND
In 2006, defendant and appellant Anton Ewing was involved in a number of proceedings growing out of the dissolution of his marriage. In one action Ewing brought against his former wife, she responded to his complaint by filing a special motion to strike (Anti-SLAPP motion) under section 425.16, which had the effect of staying all discovery in the action.
Notwithstanding the stay in the civil action against his wife, in a separate foreclosure proceeding in which Ewing was a defendant, Ewing caused deposition subpoenas to be served on domestic violence investigators employed by claimant and respondent, the Sheriff of San Diego County (the sheriff); the sheriff moved to quash the subpoenas on the grounds they were abusive. The trial court granted the sheriff's motion and imposed $5,000 in sanctions, which are the subject of this appeal.
In 2016, the sheriff filed an application to renew the enforceability of the sanctions order under section 683.150, subdivision (a). Ewing responded to the application by filing a motion to quash renewal of the judgment, which the trial court treated as a motion to vacate under section 683.l70, subdivision (a). The trial court denied Ewing's motion and Ewing filed a timely notice of appeal.
DISCUSSION
I
Under section 683.020 "upon the expiration of 10 years after the date of a money judgment," the judgment may not be enforced. However, the period of enforceability of a money judgment may be extended under the provisions of section 683.110 et seq. In particular, a judgment may be extended by filing an application with the court in which the judgment was entered before the 10-year limit on the enforceability of judgments expires. (§§ 683.120, 683.130, subd. (a).) A judgment is renewed and the period of enforceability is extended upon filing of the application. (§ 683.150.) These provisions permit " 'enforcement of a judgment beyond the 10-year period prescribed by Section 683.020. . . . This article does not require the judgment creditor to demonstrate diligence in enforcing the judgment, but if renewal is not accomplished within 10 years after entry of the judgment, the judgment becomes unenforceable.' " (OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2008) 168 Cal.App.4th 185, 194, quoting Cal. Law Revision Com. com. 17 West's Ann. Code Civ. Proc., (1987 ed.) foll. § 683.110, p. 76.)
A judgment debtor or other interested party may move to vacate renewal of a judgment "on any ground that would be a defense to an action on the judgment, including the ground that the amount of the renewed judgment . . . is incorrect." (§ 683.170, subd. (a).) The California Law Revision Commission Comments to section 683.170 states that it "is derived from Section 1710.40 pertaining to sister state judgments." The California Law Revision Commission Comments to section 1710.40 in turn states that several common defenses to enforcement of a sister state judgment are: "the judgment is not final and unconditional . . . ; the judgment was obtained by extrinsic fraud; the judgment was rendered in excess of jurisdiction; the judgment is not enforceable in the state of rendition; the plaintiff is guilty of misconduct; the judgment has already been paid; suit on the judgment is barred by the statute of limitations in the state where enforcement is sought."
In the alternative, a judgment creditor may extend the validity of a judgment by bringing a separate action on the judgment within the 10-year period provided by section 337.5. (See Fidelity Creditor Service, Inc. v. Brownie (2001) 89 Cal.App.4th 195, 200-201.)
"The judgment debtor bears the burden of proving, by a preponderance of the evidence, that he or she is entitled to relief under section 683.170. [Citations.] On appeal, we examine the evidence in a light most favorable to the order under review and the trial court's ruling for an abuse of discretion. [Citation.]" (Fidelity Creditor Service, Inc. v. Browne, supra, 89 Cal.App.4th at p. 199.)
II
In support of his motion to vacate, Ewing argued the sheriff's judgment had been released in full as part of the settlement of a later lawsuit he brought against the City of San Diego (the city) and the sheriff. However, Ewing did not present the trial court with any evidence of the terms of the settlement; rather Ewing merely argued in his memorandum that the settlement included disposition of the sheriff's judgment. For his part, in opposition to Ewing's motion, the sheriff included a declaration from counsel, which stated that under the terms of the settlement the sheriff did not make any payment to Ewing and did not release Ewing from his obligations under the judgment in this proceeding. On this record, the trial court was not required to find that the judgment in this case has been discharged.
We recognize that waiver of the provisions of Civil Code section 1542 is commonly included in the mutual releases by which civil actions are usually settled and that such a waiver might be interpreted broadly enough to discharge any existing claims in favor of one party to the release. (See Salehi v. Surfside III Condominium Owners Assoc. (2011) 200 Cal.App.4th 1146, 1160-1161.) However, on a record which does not include the actual agreement or release between the parties, neither we nor the trial court can draw such a conclusion, especially where, as here, it appears that there were more than two parties to the settlement and that only one of the defendants made any payment to Ewing.
Civil Code section 1542 states: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. "
Ewing also argues the sheriff served notice of the renewed judgment by mail at an old and incorrect address and that the proof of service was inaccurate. However, Ewing was able to file a timely motion to vacate the renewed judgment and hence waived any defect in the notice of renewal he received. (See In re Marriage of Obrecht (2016) 245 Cal.App.4th 1, 7-8.)
Next, Ewing argues the renewed judgment was voidable because it does not include all the interest due and thus understates the amount of the judgment and because the sheriff's application to renew the judgment identified "Anton A. Ewing" as the debtor rather than Anton Ewing. We agree that under section 683.170, a renewed judgment is voidable if the amount of the judgment is not correct and that the judgment application should have accurately identified the judgment debtor. However, it is axiomatic that we ignore any errors which have not harmed or prejudiced an appellant. (People ex rel. Dept. of Public Works v. Graziadio (1964) 231 Cal.App.2d 525, 531.) The sheriff's failure to include all the interest due on his judgment in the application for renewal and the addition of a middle initial to Ewing's name in the application in no sense harmed Ewing, and thus neither error is grounds for reversing the trial court's order.
Finally, Ewing argues enforcement of the judgment is barred by the doctrine of laches. In support of this contention he points out the sheriff offered no showing that it made any effort to collect its judgment. However, as we have noted, there is no requirement that a judgment creditor act with any diligence before obtaining renewal of a judgment within the 10-year period permitted in section 683.130. (OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp., supra, 168 Cal.App.4th at p. 194.)
We recognize that the enforcement of family law support orders is subject to the defense of laches insofar as they represent amounts payable to the state. (See Fam. Code § 291, subd. (d); In re Marriage of Fogarty v. Rasbeary (2000) 75 Cal.App.4th 1353, 1360-1365.) However, there is no statutory time limit on the enforceability of family law support judgments and consequently no procedure for renewal of support judgments. (See § 683.310; In re Marriage of Fogarty v. Rasbeary, at p. 1359.) In that entirely distinguishable procedural context, Family Code section 291, subdivision (d) permits a judgment debtor to assert laches with respect to amounts owed to the state. Here of course, we are not considering enforcement of a family support order, but rather renewal of a civil money judgment, which is limited not by laches but by the express 10-year period set forth in section 683.130.
DISPOSITION
The trial court's order is affirmed. Respondent William D. Gore, as Sheriff, etc., shall recover its costs on appeal.
BENKE, Acting P. J. WE CONCUR: HUFFMAN, J. IRION, J.