Judge: Elaine Lu, Case: BC477954, Date: 2024-01-11 Tentative Ruling

Case Number: BC477954    Hearing Date: January 11, 2024    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

            On February 27, 2012, Plaintiffs Judith Dolan, as Trustee of the Judith Dolan Revocable Living Trust; Sharon Mathes, as Trustee of the Brauner Family Trust 10/28/97 and Brauner Family Trust “B” 10/28/97; Robin Mochan and Sheryl Johnson, as Co-Trustees of the Scott Family Trust 4/17/96; Esther Condon; Howard Feigenbaum; Howard Feigenbaum and Barbara Feigenbaum as Co-Trustees of the Feigenbaum Family Trust; Philip Hays and Annie Hays as Co-Trustees of the Hays Family Trust; Lewis Rader and Carol Rader, as Co-Trustees of the Lewis S. Rader and Carol J. Rader  Revocable Trust dated 12/11/2007; Allen Locke; and Daniel N. Karsch (collectively “Plaintiffs”) filed the instant action against Defendants Cal Vista Home Loans, Inc. dba Cal Vista Mortgage Company, Mary Anne Rader, Ira Jay Rader, Jacalyn Fay Jaques, Builders Control Service Co., Joseph E. Cochran (“Cochran”), David Castillo, Elidia Delgado, Roberto Espinzoa, Yamara C. Ruiz, Mario Jose Ruiz, Yucaipa Concepts, LLC, Cidet Inc., Home Loan Funding Solutions Inc., Orlando Danilo Montero, Raymond B. Arrowood, Robquin Development Inc., Robert Ronald Quintero, and Yucaipa Glen, LLC (collectively “Defendants”).  On February 27, 2012, Plaintiffs filed the operative First Amended Complaint against Defendants.

            In relevant part, on March 28, 2016, judgment was entered in favor of Plaintiffs against Defendants David Castillo, Roberto Espinzoa, Yamara C. Ruiz, Yucaipa Concepts, LLC, Cidet Inc., Raymond B. Arrowood, Robquin Development Inc., Robert Ronald Quintero, Builders Control Service Co., and Cochran in the amount of $920,000.00 in damages and $375,057.54 in prejudgment interest for a total of $1,295,057.54.  (Judgment 3/28/16.)  On May 5, 2022, the Court issued an abstract of judgment for the March 28, 2016 Judgment as requested by Attorney Michael K. Hagemann on behalf of Judgment Creditor Daniel N. Karsch against Judgment Debtors David Castillo, Roberto Espinzoa, Yamara C. Ruiz, Yucaipa Concepts, LLC, Cidet Inc., Raymond B. Arrowood, Robquin Development Inc., Robert Ronald Quintero, Builders Control Service Co., and Cochran.

            On November 14, 2023, Judgment Debtor Cochran filed the instant motion to strike and expunge the May 5, 2022 Abstract of Judgment.  On December 28, 2023, Judgment Creditor Carol W. Karsch as successor-in-interest of Dr. Daniel N. Karsch (“Karsch”) filed an opposition.  On January 3, 2024, Cochran filed a reply.

Request for Judicial Notice

            Judgment Debtor Cochran requests that the Court take judicial notice of the following documents:

1.     The First Amended Complaint filed 2/27/12

2.     General Denial - Builders Control and Cochran filed 3/29/12

3.     Substitution of Attorney – Cochran filed 8/26/14

4.     Nine CalVista Judgment filed 6/3/15

5.     Motion To Compel Deposition – Cochran filed 8/4/15

6.     Notice of Non-Opposition (Cochran) filed 8/19/15

7.     Order Compelling Cochran Deposition filed 8/26/15

8.     Motion For Sanctions (Cochran) filed 10/7/15

9.     Order Striking Cochran's Anstver and Entering Default filed 10/30/15

10.  Hagemann Supplemental Declaration re: Default Judgment filed 3/21/16

11.  Jaqucs Supplemental Declaration re: Default Judgment filed 3/21/16

12.  Hagemann Declaration re: Default Judgment filed 3/28/16

13.  Jaques Declaration re: Default Judgment filed 3/28/16

14.  Request For Court Judgement filed 3/28/16

15.  Minute Order Granting Default Judgment filed 3/28/16

16.  Notice of Entry of Default Judgment filed 4/5/16

17.  Assignment of Judgment (Dolan) filed 6/15/16

18.  Assignment of Judgment (Hays) filed 6/16/16

19.  Assignment of Judgment (Condon) filed 6/17/16

20.  Assignment of Judgment (Johnson/Mochan) filed 6/20/16

21.  Assignment of Judgment (Rader) filed 6/21/16

22.  Assignment of Judgment (Locke) filed 6/27/16

23.  Assignment of Judgment (Mathes) filed 9/11/16

24.  Assignment of Judgment (Feigenbaum) filed 9/11/16

25.  Notice of Rejection -:Post Judgment filed 5/3/22

26.  Recorded Abstract of Judgment recorded on 5/6/22

27.  Notice of Rejection - Post Judgment filed 5/10/22

28.  Declaration of Carol W. Karsch (C.C.P. § 377.32) filed 3/14/23

29.  Verified Complaint In Equity To Vacate Default Judgment; For Injunctive Relief; And For Damages For Slander of Title in Related Action Joseph E. Cochran v. Judith Dolan, as Trustee of the Judith Dolan Revocable Trust, etc. et. al., Los Angeles Superior Court Case No. 22STCV28789 (“Related Action”) filed 9/10/22

30.  Minute Order Granting Anti-SLAPP Motions in Related Action filed 5/4/23

31.  Notice of Appeal – Anti-SLAPP Motions in Related Action filed 6/26/23

32.  Minute Order Granting Third Anti-SLAPP Motion in Related Action filed 7/28/23

33.  Notice of Appeal – Third Anti-SLAPP Motion in Related Action filed 9/25/23

34.  Minute Order - Reassignment of Cases BC477954 and BC593944 in Related Action

As the Court may take judicial notice of court records and actions of the State, (See Evid. Code, § 452(c)(d)), Judgment Debtor Cochran’s unopposed requests for judicial notice are GRANTED.  However, the Court does not take judicial notice of the truth of assertions within. (See Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) 

Judgment Creditor’s Ex Parte Application

            On January 9, 2024, Judgment Carol W. Karsch filed an Ex Parte Application To File A One-Sentence Sur-Reply.  In the Court’s view, this ex parte application was unnecessary because the Court’s own review of the docket reflected the filing of the Amended Abstract of Judgment.  Nonetheless, Judgment Carol W. Karsch’s Ex Parte Application to File a One-Sentence Sur-Reply is GRANTED.

Discussion

            As a preliminary matter, Judgment Creditor Karsch contends that the instant motion is procedurally improper.

            “Subject to specified exceptions, an abstract of judgment attaches to all interests (whether present or future, vested or contingent, legal or equitable) owned by the judgment debtor in real property in the county in which the abstract is recorded and creates a judgment lien on that property which continues until it expires ten years later or is satisfied or released.”  (Federal Deposit Ins. Corp. v. Charlton (1993) 17 Cal.App.4th 1066, 1069.)  “There is no statutory procedure for ‘expunging’ an abstract of judgment.”  (Id. at p.1070.)  “The lien remains until the judgment creditor files an acknowledgement of satisfaction of judgment or agrees to release the lien. [Citation.] For a judgment lien to be valid, an abstract of judgment must be properly recorded and contain all the information required by statute.”  (Longview Internat., Inc. v. Stirling (2019) 35 Cal.App.5th 985, 989.)

            “[A]n abstract of a judgment or decree requiring the payment of money shall be certified by the clerk of the court where the judgment or decree was entered and shall contain all of the following: [¶] (1) The title of the court where the judgment or decree is entered and cause and number of the action. [¶] (2) The date of entry of the judgment or decree and of any renewals of the judgment or decree and where entered in the records of the court. [¶] (3) The name and last known address of the judgment debtor and the address at which the summons was either personally served or mailed to the judgment debtor or the judgment debtor's attorney of record. [¶] (4) The name and address of the judgment creditor. [¶] (5) The amount of the judgment or decree as entered or as last renewed. [¶] (6) The last four digits of the social security number and driver's license number of the judgment debtor if they are known to the judgment creditor. If either or both of those sets of numbers are not known to the judgment creditor, that fact shall be indicated on the abstract of judgment. [¶] (7) Whether a stay of enforcement has been ordered by the court and, if so, the date the stay ends. [¶] (8) The date of issuance of the abstract.”  (CCP § 674(a).)  While clerical errors in an abstract of judgment do not void the judgment lien, (Commonwealth Land Title Co. v. Kornbluth (1985) 175 Cal.App.3d 518, 531), when mandated information is missing from the abstract, the judgment lien is void, (Keele v. Reich (1985) 169 Cal.App.3d 1129, 1133 [“No court has validated a judgment lien where mandated information was omitted from an abstract.”]).

            However, Judgment Debtor cannot generally challenge the validity of an abstract of judgment.  Pursuant to Code of Civil Procedure section 674 only a “purchaser, encumbrancer or lessee” who obtained an interest in the Judgment Debtor’s property without actual notice of the original abstract may assert the defective abstract as a defense against its enforcement.  (CCP § 674(b); see also [6:173] Creation of Judgment Lien:, Cal. Prac. Guide Enf. J. & Debt Ch. 6B-3.)  Only a Judgment Debtor in bankruptcy as a debtor in possession may void defective liens under the bankruptcy trustee “strong arm clause” under 11 U.S.C. § 544(a) “to set aside transfers or liens against property of the bankruptcy estate.”  (In re Varner (B.A.P. 9th Cir. 1998) 219 B.R. 867, 869.)  However, here there is no claim that Cochran is in bankruptcy as a debtor in possession. 

            Regardless, the Court on its own may cancel or void an abstract of judgment that is not in compliance with Code of Civil Procedure section 674.  (See e.g., Weeden v. Hoffman (2021) 70 Cal.App.5th 269, 295 [Noting that “[a]n abstract of judgment obtained fraudulently and not in compliance with Code of Civil Procedure section 674 because it does not accurately reflect ‘[t]he amount of the judgment,’ may be cancelled or otherwise voided by a court.”].)

            Accordingly, the Court turns to the merits of Judgment Debtor’s motion to strike and expunge the May 5, 2022 Abstract of Judgment.

            Here, Attorney Michael K. Hagemann filed the May 5, 2022 Abstract of Judgment on behalf of Judgment Creditor Daniel N. Karsch.  (RJN Exh. 26.)  However, Judgment Creditor Daniel N. Karsch had passed away on July 23, 2020.  (RJN Exh. 28 at Exh. A.)  The death of a party extinguishes the power of the decedent’s attorney to file on behalf of the decedent.  (Judson v. Love (1868) 35 Cal. 463, 467, [“The power of attorney necessarily ceased with the death of the principal. No further proceedings could be had without bringing in the representatives of [the decedent party].”]; Deiter v. Kiser (1910) 158 Cal. 259, 262 [“[the client’s] death terminated the authority of his attorneys to act for him.”].)  Thus, Attorney Michael K. Hagemann lacked authority to file the Abstract of Judgment on behalf of Judgment Creditor Daniel N. Karsch at the time.  Rather, pursuant to Code of Civil Procedure section 686.010, “[a]fter the death of the judgment creditor, the judgment may be enforced as provided in this title by the judgment creditor's executor or administrator or successor in interest.”  As the May 5, 2022 Abstract of Judgment was filed without authority, it would be void. 

However, on January 9, 2024, Attorney Michael K. Hagemann filed an Amended Abstract of Judgment on behalf of Judgment Creditor Daniel N. Karsch’s Successor-in-Interest Carol W. Karsch.  This Amended Abstract of Judgment takes priority.  (CCP § 674(b).)  Thus, Judgment Debtor’s motion to strike and expunge the superseded May 5, 2022 Abstract of Judgment is moot.

Accordingly, the instant motion to strike and expunge the May 5, 2022 Abstract of Judgment is DENIED AS MOOT.  To the extent that Judgment Debtor Cochran contends that the underlying judgment is improper, he must bring a procedurally proper motion challenging the March 28, 2016 judgment.

Conclusion and ORDER

Based on the foregoing, Judgment Carol W. Karsch’s Ex Parte Application to File a One-Sentence Sur-Reply is GRANTED.  Judgment Debtor Joseph E. Cochran’s motion to strike and expunge the May 5, 2022 Abstract of Judgment is DENIED AS MOOT.

Moving Party is to give notice and file proof of service of such.

DATED:  January ___, 2024                                                  ___________________________

Elaine Lu

                                                                                          Judge of the Superior Court