Kessler v. Kessler

California Court of Appeal Mar 21, 1983 No. Civ. 66117Published

Before: Hastings

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Holding. The trial court erred in striking the plaintiff's pleadings and vacating the sister state judgment solely because the plaintiff's out-of-state conservator filed the application without a California-licensed attorney. The court held that the application process is a ministerial act, and the plaintiff is entitled to a hearing on the merits of the motion to vacate with the assistance of counsel.

Issues

Whether a judgment creditor's conservator may file an application for entry of a sister state judgment without a California-licensed attorney.
Whether the trial court erred in striking all pleadings and vacating the judgment on its own motion due to the unauthorized practice of law.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“There is no requirement in the section nor in any of the other sections dealing with entry of a sister state judgment that requires the filing of the application by an attorney for the judgment creditor.”

“Entry by the clerk of a judgment based on the application is mandatory upon the filing of the application. (Code Civ. Proc., § 1710.25.) Entry of the judgment is a ministerial act of the clerk, not a judicial act of the court.”

“The judgment was properly entered and could only have been vacated after a full hearing on the merits of the issues raised under the motion to vacate.”

Opinion

HASTINGS, J.

The superior court granted respondent Ralph Kessler’s motion to vacate entry of a sister state judgment. Ira J. Lefton, as the committee of the person and property of Ruth Kessler, appeals. For purposes of this opinion we will refer to Ruth Kessler as appellant.

Respondent and appellant, while married, were residents of the State of New York. In January 1973 in said state they signed a separation agreement, which stated that “for all purposes, this agreement shall be enforceable in and shall be construed in accordance with the laws of the State of New York.” The agree

[96]

ment provided for support payments from respondent to appellant which respondent honored until 1976. He then ceased making further payments. Respondent moved from New York to California in August 1973 and since then has continuously been a resident of this state, domiciled within the County of Los Angeles.

In 1977 appellant was declared incompetent to manage her own affairs and a committee (conservatorship) was established for her in New York. Mr. Lefton was appointed as her conservator. In June 1980 he commenced an action in New York against respondent to recover sums due appellant under the separation agreement. Respondent was personally served with a summons and complaint by a Los Angeles deputy sheriff.

He did not appear in the New York action and following notice of default duly served on him, a default judgment was entered in the sum of $65,765.50, plus interest and costs. A copy of that judgment was served on respondent on November 24, 1980.

On February 3, 1981, and March 5, 1981, respectively, Mr. Lefton, in propria persona, filed an application and amended application for entry of judgment on sister state judgment. Mr. Lefton, an attorney in New York, is not licensed to practice law in California. The application was filed

behalf of Ruth Kessler.

The New York judgment was entered in California pursuant to Code of Civil Procedure section 1710.25.

Kessler v. Kessler

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HASTINGS, J.

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