Judge: Mark E. Windham, Case: LAM11K00139, Date: 2022-10-06 Tentative Ruling

Case Number: LAM11K00139    Hearing Date: October 6, 2022    Dept: 26

MOTION TO QUASH WRIT OF EXECUTION AND VACATE LEVY

(Code Civ. Proc., § 686.010)

TENTATIVE RULING:

Judgment Debtor William Landis’ Motion to Recall and Quash Writ of Execution and Vacate Notice of Levy is GRANTED.

SERVICE OF MOTION: 

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

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

[X] 16/21 Day Lapse (CCP 12c and 1005 (b))           OK

SUMMARY OF COMPLAINT: Action for discrimination on the basis of disability.

REQUEST FOR RELIEF: Quash the writ of execution and vacate the levy of Judgment Debtor’s property. Since the death of Judgment Creditor, no personal representative has been named. Nor is Judgment Creditor’s attorney entitled to the award of attorney’s fees without a proper assignment.

OPPOSITION: Respondent has not overcome the presumption of proper service.

REPLY: None filed as of October 4, 2022. 

ANALYSIS:

On December 1, 2011, the Court entered judgment in favor of Judgment Creditor John Carpenter (“Judgment Creditor”) and against Judgment Debtor William Landis (“Judgment Debtor”). The judgment was renewed on June 3, 2020.

A writ of execution of judgment was issued on December 10, 2021. Judgment Debtor filed the instant Motion to Recall and Quash Writ of Execution and Vacate Levy on May 16, 2022. By ex parte application, the hearing was advanced from November 22, 2022 to October 6, 2022. (Minute Order, 09/29/22.) Judgment Creditor’s attorney, Morse Mehrban, filed evidentiary objections to the evidence in support of the Motion on September 30, 2022.

Discussion

Attorney Mehrban’s evidentiary objections to the declaration of Andrew M. Morrow, III are ruled on as follows:

·         No. 1 sustained

·         Nos. 2-7 overruled

Judgment Debtor has presented sufficient evidence that Judgment Creditor is deceased. After being served with a Notice of Levy under Writ of Execution on January 19, 2022, Judgment Debtor’s counsel reached out to Attorney Mehrban to discuss that Judgment Creditor was deceased. (Motion, Morrow III Decl., Exhs. B-C.) Attorney Mehrban responded with an email that did not deny that Judgment Creditor was deceased. (Id. at Exh. D.) Instead, the letter attached a copy of the judgment and cited to case law. (Ibid.) If there was any doubt about Judgment Creditor’s death, it was unreasonable for Attorney Mehrban to have not disputed that fact. In fact, no opposition has been filed to the instant Motion by Judgment Creditor  other than evidentiary objections. Therefore, the Court finds that Judgment Creditor is deceased and has been since before the Writ of Execution and Notice of Levy were served.

The Court’s authority to recall the execution of the writ has long been established by case law. (See Creditors’ Adjustment Co. v. Newman (1921) 185 Cal. 509, 511.) Further, any action that follows from the recalled writ is likewise subject to recall. (Wellborn v. Wellborn (1942) 55 Cal.App.2d 516, 525.) Under Code of Civil Procedure section 686.010, “After 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.” (Code Civ. Proc., § 686.010.) The Writ of Execution and Notice of Levy, however, were made in Judgment Creditor’s name. (Writ of Execution, filed 12/01/22, ¶3; Motion, Morrow III Decl., Exh. B.) These attempts to enforce the judgment were improper because they were not made by Judgment Creditor’s executor or administrator or successor in interest, as no such representative has been named in this action.

Conclusion

Therefore, Judgment Debtor William Landis’ Motion to Recall and Quash Writ of Execution and Vacate Notice of Levy is GRANTED.

Moving party to give notice.