Judge Theresa M. Traber, Case BC423174 2022-07-29 Tentative Ruling

Judge: Theresa M. Traber, Case: BC423174, Date: 2022-07-29 Tentative Ruling

Case Number: BC423174 Hearing Date: July 29, 2022 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: July 29, 2022 JUDGMENT ENTERED: March 2, 2011

CASE: Jon Carpenter v. Martin Lee Properties, Inc. et al.

CASE NO.: BC423174

MOTION FOR ENTRY OF SATISFACTION OF JUDGMENT AND TO QUASH WRIT OF EXECUTION AND SHERIFF’S LEVY; REQUEST FOR ATTORNEY’S FEES AND COSTS

MOVING PARTY: Defendant/Judgment Debtor Martin Lee Properties, Inc.

RESPONDING PARTY(S): Plaintiff’s Assignee/Judgment Creditor Ex Parte Collection Services, LLC.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This was an action for violation of the Americans with Disabilities Act, filed on October 13, 2009. On March 2, 2011, an amended final judgment was entered for the Plaintiff.

Judgment debtor and Defendant Martin Lee Properties, Inc. moves for entry of satisfaction of the judgment and to quash the writ of execution and Sheriff’s levy, and for attorney’s fees and costs.

TENTATIVE RULING:

Defendant’s Motion for Entry of Satisfaction of Judgment and to Quash Writ of Execution and Sheriff’s levy and for attorney’s fees is CONTINUED to November 4, 2022.

The Writ of Execution and Sheriff’s Levy are recalled and quashed.

Judgment Creditor is ordered to cease all collection efforts on the Judgment until further order of this Court.

DISCUSSION:

Judgment debtor and Defendant Martin Lee Properties, Inc. moves for entry of satisfaction of the judgment and to quash the writ of execution and Sheriff’s levy, and for attorney’s fees and costs.

Code of Civil Procedure section 724.050 governs the procedure for acknowledgement of satisfaction of a money judgment:

(a) If a money judgment has been satisfied, the judgment debtor, the owner of real or personal property subject to a judgment lien created under the judgment, or a person having a security interest in or a lien on personal property subject to a judgment lien created under the judgment may serve personally or by mail on the judgment creditor a demand in writing that the judgment creditor do one or both of the following:

(1) File an acknowledgment of satisfaction of judgment with the court.

(2) Execute, acknowledge, and deliver an acknowledgment of satisfaction of judgment to the person who made the demand.

(b) The demand shall include the following statement: “Important warning. If this judgment has been satisfied, the law requires that you comply with this demand not later than 15 days after you receive it. If a court proceeding is necessary to compel you to comply with this demand, you will be required to pay my reasonable attorney's fees in the proceeding if the court determines that the judgment has been satisfied and that you failed to comply with the demand. In addition, if the court determines that you failed without just cause to comply with this demand within the 15 days allowed, you will be liable for all damages I sustain by reason of such failure and will also forfeit one hundred dollars to me.”

(c) If the judgment has been satisfied, the judgment creditor shall comply with the demand not later than 15 days after actual receipt of the demand.

(d) If the judgment creditor does not comply with the demand within the time allowed, the person making the demand may apply to the court on noticed motion for an order requiring the judgment creditor to comply with the demand. The notice of motion shall be served on the judgment creditor. Service shall be made personally or by mail. If the court determines that the judgment has been satisfied and that the judgment creditor has not complied with the demand, the court shall either (1) order the judgment creditor to comply with the demand or (2) order the court clerk to enter satisfaction of the judgment.

(e) If the judgment has been satisfied and the judgment creditor fails without just cause to comply with the demand within the time allowed, the judgment creditor is liable to the person who made the demand for all damages sustained by reason of such failure and shall also forfeit one hundred dollars ($100) to such person. Liability under this subdivision may be determined in the proceedings on the motion pursuant to subdivision (d) or in an action.

(Code Civ. Proc. § 724.050.)

Judgment Creditor’s Suspension

Defendant contends that Judgment Creditor, Ex Parte Collection Services, LLC has been suspended since October 1, 2020. (Defendant’s Exhibits 5 and 6.) Judgment Creditor therefore was precluded from prosecuting or defending any action. (Timberline, Inc. v. Jaisinghani (1997) 54 Cal.App.4th 1361, 1365-66.) Defendant contends that the March 2022 Writ of Execution and April 2022 Sheriff’s levy should not have been issued, because Judgment Creditor was precluded by law from participating.

Judgment Creditor’s opposition concedes that Ex Parte Collection Services, LLC is suspended, and requests a 90-day continuance on this motion to permit it to obtain a certificate from revivor to allow it to resolve this issue on its merits. When a corporation’s suspended status comes to light during litigation, the normal practice is for the trial court to permit a short continuance to enable to the suspended corporation to effect reinstatement to defend itself in court. (Timberline, supra, 54 Cal.App.4th at 1366.) “[T]he purpose of section 23301 of the Revenue and Taxation Code is to put pressure on the delinquent corporation to pay its taxes, and that purpose is satisfied by a rule which views a corporation’s tax delinquencies, after correction, as mere irregularities.” (Id.)

In reply, Defendant argues that no continuance should be granted because judgment has already been entered, and a claim of lack of corporate capacity because of suspended status is a “plea in abatement” which is not favored in law. (See Traub Co. v. Coffee Break Service, Inc. (1967) 66 Cal.2d 368, 370.) This contention is not well-taken. The practice of permitting a suspended corporation to obtain a certificate of revivor and thereafter pursue a matter explicitly extends post-judgment, such as when pursuing an appeal. (See Peacock Hill Assn. v. Peacock Lagoon Constr. Co. (1972) 8 Cal.3d 369, 371.) Defendant also argues that it will be prejudiced by delaying the matter because there is an abstract of judgment recorded against the title to the subject property where, according to Defendant, an amount in excess of the judgment is claimed. The Court is not persuaded that this is a sufficient basis to reject standing policy and precedent to permit a short continuance for a corporation to obtain a certificate of revivor. Equity and public policy weigh strongly in favor of permitting all parties to resolve this dispute on the merits.

CONCLUSION:

For the reasons stated above, Defendant’s Motion for Entry of Satisfaction of Judgment and to Quash Writ of Execution and Sheriff’s levy and for attorney’s fees is CONTINUED to November 4, 2022.

The Writ of Execution and Sheriff’s Levy are recalled and quashed.

Judgment Creditor is ordered to cease all collection efforts on the Judgment until further order of this Court.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: July 29, 2022 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.