Stoffel v. Dutton

Opinion

CROSBY, J.

Is a judgment debtor’s home which became exempt from execution under former law again subject to levy after enactment of the Enforcement of Judgments Law?

Yes.

I

B. A. Stoffel obtained a judgment against Jack C. Dutton in March 1976. Dutton and his wife were then owners in joint tenancy of homesteaded real property located in Anaheim. Stoffel obtained a writ of execution to levy on the property but failed to timely petition for the appointment of an appraiser, and the execution lien was removed (former Civ. Code, § 1245).

1

[1188]

Thereafter, Dutton conveyed his interest in the property to his wife; and Stoffel filed suit to set aside the conveyance, claiming it was fraudulent and made only to avoid the judgment. Dutton defended on the basis Stoffel could not be damaged even if the conveyance were fraudulent because the provisions of then Civil Code section 1245 barred Stoffel from attempting to levy on the property a second time (see

ante,

fn. 1). The trial court agreed, and judgment was rendered in Dutton’s favor.

In 1979 Civil Code section 1245 was amended, and the rule limiting creditors to one opportunity to perfect an execution lien was removed. Nevertheless, it was still impossible to obtain a judgment lien on homesteaded property. Effective July 1, 1983, however, the Enforcement of Judgments Law (Code Civ. Proc., § 680.010 et seq.) superseded Civil Code section 1245, which was repealed. Under the new law it finally became possible to create a judgment lien on homesteaded property. The lien is created by recording an abstract of judgment (Code Civ. Proc., § 697.060) and attaches to the value of the property in excess of the statutory homestead exemption and all liens and encumbrances in existence when the abstract of judgment is recorded. (Code Civ. Proc., § 704.950, subd. (c).)

In December 1983, after the new law became effective, Stoffel once again levied on the Anaheim property and petitioned the court for a sale under Code of Civil Procedure section 704.770. Dutton sought to quash the writ of execution and vacate the levy solely on the basis that the decision in Stoffel’s earlier action to set aside the allegedly fraudulent conveyance was res judicata and precluded him from ever seeking to levy on the property again. Dutton did not claim the new law could not be applied to this judgment. The court denied the motion to quash and ordered the house sold. Dutton reiterates the res judicata argument here and for the first time also urges that the new Enforcement of Judgments Law may not be applied retroactively to expose previously levied-upon homesteaded property to execution.