Judge Katherine Chilton, Case LAM12CA0897 2022-12-15 Tentative Ruling

Judge: Katherine Chilton, Case: LAM12CA0897, Date: 2022-12-15 Tentative Ruling

Case Number: LAM12CA0897 Hearing Date: December 15, 2022 Dept: 25

PROCEEDINGS: MOTION TO ASSIGN AND RENEW JUDGMENT

MOVING PARTY: Malcolm Kennedy, Non-Party

RESP. PARTY: None

MOTION TO ASSIGN AND RENEW JUDGMENT

(CCP §§ 686.010, 377.31, 377.32, et seq.)

TENTATIVE RULING:

Malcolm Kennedy’s Motion to Assign and Renew Judgment is GRANTED. Judgment entered on October 9, 2012, is assigned to Malcolm Kennedy, as Successor in Interest to Deceased Plaintiff Elizabeth Kennedy.

Furthermore, the Judgment is renewed in the amount of $49,577.01 for a period of ten (10) years. Clerk of the Court to enter renewal of judgment.

SERVICE:

[ ] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[ ] Correct Address (CCP §§ 1013, 1013a) OK

[ ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of December 13, 2022. [ ] Late [X] None

REPLY: None filed as of December 13, 2022. [ ] Late [X] None

ANALYSIS:

I. Background

On October 9, 2012, the Court entered judgment in favor of Plaintiff/Creditor Elizabeth Kennedy (“Mrs. Kennedy”) and against Defendant/Judgment Debtor Latasha Galloway (“Galloway”) in the amount of $24,904.50 (“Judgment”) relating to an unlawful detainer action for property located in Lancaster (“Property”).

Mrs. Kennedy passed away on April 21, 2016, and her spouse, Malcolm Kennedy (“Mr. Kennedy”), in propria persona, filed an ex parte application to have the Court declare him successor in interest to the Judgment so that he can renew the judgment. (7-20-22 Ex Parte Application.) On July 21, 2022, the Court denied Mr. Kennedy’s ex parte application due to insufficient evidence. (7-21-22 Minute Order.)

On October 5, 2022, Mr. Kennedy filed the instant Motion for Order Assigning Judgment and Renewal of Judgment (“Petition”).

On December 7, 2022, the Court, on its own motion, continued the hearing on the Motion to December 15, 2022. (12-7-22 Minute Order.)

No opposition has been filed.

II. Legal Standard & Discussion

A. Assignment of Judgment

According to Code of Civil Procedure § 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.”

An individual may become an assignee of record by filing an acknowledgment of assignment of judgment with the clerk of the court, as set forth by Code of Civil Procedure § 673, or by a noticed motion.

“On motion after the death of a person who commenced an action or proceeding, the court shall allow a pending action or proceeding that does not abate to be continued by the decedent’s personal representative or, if none, by the decedent’s successor in interest.” (Code Civ. Proc. § 377.31.)

Code of Civil Procedure § 377.32 provides the following:

(a) The person who seeks to commence an action or proceeding or to continue a pending action or proceeding as the decedent’s successor in interest under this article, shall execute and file an affidavit or a declaration under penalty of perjury under the laws of this state stating all of the following:

(1) The decedent’s name.

(2) The date and place of the decedent’s death.

(3) “No proceeding is now pending in California for administration of the decedent’s estate.”

(4) If the decedent’s estate was administered, a copy of the final order showing the distribution of the decedent’s cause of action to the successor in interest.

(5) Either of the following, as appropriate, with facts in support thereof:

(A) “The affiant or declarant is the decedent’s successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) and succeeds to the decedent’s interest in the action or proceeding.”

(B) “The affiant or declarant is authorized to act on behalf of the decedent’s successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) with respect to the decedent’s interest in the action or proceeding.”

(6) “No other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding.”

(7) “The affiant or declarant affirms or declares under penalty of perjury under the laws of the State of California that the foregoing is true and correct.”

(b) Where more than one person executes the affidavit or declaration under this section, the statements required by subdivision (a) shall be modified as appropriate to reflect that fact.

On October 5, 2022, Mr. Kennedy, filed the instant Motion seeking an order assigning “all interest, right and title to the judgment against Defendant and Judgment Debtor” to himself as Plaintiff’s spouse. (Mot. p. 2)

Mr. Kennedy has submitted a declaration under penalty of perjury. (Mot. pp. 2-5.) In the declaration, he provides the name and address of Plaintiff/Creditor and Defendant/Debtor. (Mot. p. 3.) He states that judgment was entered in the instant case on October 9, 2012. (Ibid. at p. 2.) In June 2022, Mr. Kennedy conveyed the property at issue in the unlawful detainer case into the Malcolm & Elizabeth Kennedy Living Trust. (Ibid. at p. 3.) Mr. Kennedy is Co-Grantor and Trustee of the Trust and has attached the Malcolm &Elizabeth Kennedy Living Trust Agreement (Attachment 8), showing that in the event one of the grantors/trustees passes away, the remaining grantor/trustee assumes all rights, including all monetary judgments. (Ibid. at pp. 4, 39, 44, Attach. 8.) He has also attached Affidavit – Death of Trustee, which includes a certified copy of the Certificate of Death for Plaintiff Elizabeth Kennedy (Attachment 5), Affidavit of Succession (Attachment 6), and Grant Deed for the Property (Attachment 7). The Certificate of Death states that Plaintiff Elizabeth Kennedy passed away on April 21, 2016, in Los Angeles County. (Mot. p. 27.)

Mr. Kennedy also states that in a separate case in the Los Angeles Superior Court, the Court found that “Malcolm Kennedy is the deceased judgment creditor’s executor or administrator or successor interest within the meaning of CCP 686.010.” (Ibid. at p. 4., Attach. 8 - Superior Court of California, County of Los Angeles, Case No. 11UA3002, 3-9-22 Minute Order.) Although in that case, the Court denied Mr. Kennedy’s ex parte application for assignment of judgment, nonetheless, the Court provided him with the authority to renew and enforce the Judgment against Debtor Galloway, per Code of Civil Procedure § 686.010. (Ibid.)

The Court finds that the evidence submitted is sufficient to show that Mr. Kennedy was the Co-Trustee of the Malcolm & Elizabeth Kennedy Living Trust and that the Property was conveyed into the Trust. (See Mot. p. 31, Grant Deed.) Although Mr. Kennedy’s declaration does not address whether any proceedings are pending for the administration of Mrs. Kennedy’s estate or whether any person has a superior right to be substituted into the proceedings, the evidence demonstrates that according to the Trust, the Court may assign the judgment entered in favor of Plaintiff Mrs. Kennedy to Mr. Kennedy, as successor in interest.

Accordingly, the Court finds that Mr. Kennedy is the successor in interest in the instant case and pursuant to Code of Civil Procedure § 686.010, assigns the Judgment entered on October 9, 2012, to Mr. Malcolm Kennedy.

B. Renewal of Judgment

According to Code of Civil Procedure § 683.110, “[t]he period of enforceability of a money judgment or a judgment for possession or sale of property may be extended by renewal of the judgment.” The court that entered the judgment continues to retain jurisdiction over the matter and the parties throughout the statutory renewal process. (Goldman v. Simpson (2008) 160 Cal.App.4th 255, 263-64.)

The Creditor may file an application to renew judgment in the court, in which the judgment was entered, and extend the period of enforceability of the judgment by ten (10) years from the date of filing the application. (Code of Civ. Proc. § 683.120(a)-(b).) The application may be filed at any time before the ten (10) year period expires. (Code of Civ. Proc. § 683.130.)

The application for renewal of judgment must be filed on Forms EJ-190 and EJ-195, shall be executed under oath, and shall include all of the following:

(a) The title of the court where the judgment is entered and the cause and number of the action.

(b) The date of entry of the judgment and of any renewals of the judgment and where entered in the records of the court.

(d) In the case of a money judgment, the information necessary to compute the amount of the judgment as renewed. In the case of a judgment for possession or sale of property, a description of the performance remaining due.

(Code of Civ. Proc. § 683.140.)

Code of Civil Procedure § 683.150 states that “[u]pon the filing of the application, the court clerk shall enter the renewal of the judgment in the court records” and “the entry of renewal shall show the amount of the judgment as renewed” which is “the amount required to satisfy the judgment on the date of the filing of the application for renewal and includes the fee for the filing of the application for renewal.”

Finally, the Creditor must serve a notice of renewal of the judgment on the Debtor by personal service or first-class mail and proof of service must be filed with the Court. (Code of Civ. Proc. § 683.160.) The notice must inform the Debtor that the Debtor has thirty (30) days to file a motion to vacate or modify the renewal. (Ibid.)

Here, Judgment was entered on October 9, 2012. (10-9-12 Minute Order.) The instant Motion for Order Assigning and Renewing Judgment was filed on October 5, 2022. As part of the instant Motion, Mr. Kennedy has submitted a Motion to Extend Filing – Renewal of Judgment and Assignment of Judgment, and a separate declaration explaining that that he was unable to file the application earlier due to the death of his brother. (Mot pp. 10-18.) He was also unable to reserve a hearing date before November 2022. (Mot. pp. 10-18.) However, given that the Application was filed prior to the expiration of the ten-year period, the Court finds the Application to have been filed timely.

The Court also finds that Mr. Kennedy has properly filed Forms EJ-190 and EJ-195. (Mot. pp. 19-21.). Form EJ-190 provides the name of the Court where the Judgment was entered, as well as the case name, case number, and date of entry of judgment. (Mot. pp. 20-21.) It also states the name and address of the Creditor and name and last known address of the Debtor. (Ibid.) It contains the calculation of renewal of judgment as follows: $24,904.50 (total judgment entered), $24,672.51 (interest after judgment), and $45 (fee for filing renewal application), for a total renewed judgment of $49,577.01. (Mot. p. 20, EJ-190.) A Memorandum of Costs has also been filed. (Mot. pp. 22-23.)

Finally, Mr. Kennedy has filed Proof of Service of Application for Renewal of Judgment and Notice of Renewal of Judgment by First-Class Mail. (Mot. pp. 6-8.) Mr. Kennedy has also paid the renewal of judgment fee.

The Court finds that Mr. Kennedy has satisfied all requirements for renewing the Judgment. Accordingly, Judgment entered on October 9, 2012, is renewed for a period of ten (10) years, in the amount of $49,577.01.

III. Conclusion & Order

For the foregoing reasons,

Furthermore, the Judgment is renewed in the amount of $49,577.01 for a period of ten (10) years. Clerk of the Court to enter renewal of judgment.