Judge: Gregory Keosian, Case: 22STCV23998, Date: 2023-10-10 Tentative Ruling

Case Number: 22STCV23998    Hearing Date: January 4, 2024    Dept: 61

Defendants Golden West Donuts and Sophon Koeuth’s Motion to Recall and Quash Writ of Execution and Return of Assets Levied is GRANTED in part, and Plaintiff is directed to return $10,744.26 in levied funds.

Defendant to give notice.

I.                   MOTION TO QUASH WRIT OF EXEUCTION

“Certainly a trial court has the power, and it is the trial court's duty, to vacate or recall a writ of execution which has been improvidently issued. If a writ of execution is issued to enforce a void judgment, obviously it has been improvidently issued. It is a fundamental rule that a writ of execution must be founded upon a Valid and subsisting judgment which has not been satisfied.” (Jones v. World Life Research Institute (1976) 60 Cal.App.3d 836, 840, internal quotation marks and citations omitted.)

Defendants Golden West Donuts and Sophon Koeuth (Defendants) move to quash a writ of execution issued on February 7, 2023, on the grounds that the default judgment upon which the writ was based has been vacated. (Motion at pp. 7–8.) “Once vacated, the status of the parties that existed prior to the judgment is restored and the situation then prevailing is the same as though the order or judgment had never been made.” (Bulmash v. Davis (1979) 24 Cal.3d 691, 697.) Defendants also note Code of Civil Procedure § 908, which authorizes appellate courts to direct restitution of property rights lost as a result of a judgment that has since been reversed or modified. (Motion at p. 8.) Defendants accordingly seek the return of $10,144.26 in levied funds. (Kenny Decl. ¶ 7.)

Plaintiff in opposition notes that the writ of execution was quashed by order of the court through ex parte application on October 11, 2023, making Defendants’ request moot. (Motion at p. 1.) Plaintiff also notes that it has twice notarized and sent to Defendants a release of abstract of judgment, and has confirmed the release of all liens. (Opposition at p. 2.) Plaintiff argues, however, that no return of the levied $10,144.26 in levied funds should be ordered, since the funds are subject to a lien by Plaintiff’s counsel upon any recovery in this action. (Opposition at pp. 2–3.) Thus Plaintiff argues that ordering return of the levied funds would be inconsistent “with rights of third parties” — i.e. its counsel — under Code of Civil Procedure § 908.

Plaintiff’s argument is unpersuasive, and restitution is properly ordered. Plaintiff acknowledges that its counsel’s lien is upon any recovery in this action. (Opposition at p. 2.) Yet there has been no recovery in this action, as the judgment pursuant to which any recovery was made has since been vacated. (See Bulmash, supra, 24 Cal.3d at p. 697.) An order of restitution is therefore not inconsistent with the rights of Plaintiff’s counsel.

The motion is therefore GRANTED in part, and Plaintiff is directed to return $10,744.26 in levied funds.

Defendant further seeks $9,795.90 in attorney fees under Code of Civil Procedure § 697.410, which authorizes attorney fees to the prevailing party in an application to a court “for an order releasing the judgment lien on the property” belonging to the moving party. (Code Civ. Proc. § 697.410, subd. (c), (d).) This section does not apply however, as the section’s remedies are directed to the owner of property against which an abstract of a money judgment has been recorded “because the name of the property owner is the same as or similar to that of the judgment debtor,” and the property owner has been “erroneously identified.” (Code Civ. Proc. § 697.410, subd. (a).) This is an application for relief based on a vacated judgment, not mistaken identity. Moreover, no fees would be appropriate if the statute were applicable, as Plaintiff served a release of the abstract in August 2023, before the motion was served, although Defendant evidently did not receive it. (Gentino Decl. ¶¶ 1–2.) No sanctions are awarded.