Statute of Limitations for 18 USC § 1001, False Statements to the U.S. Government
Issuing a State Court Subpoena to Federal Officials: Beware the Touhy Doctrine.
Enforcement of Money Judgments Against Property in Jurisdiction of California Probate Court: The Interaction Between Cal. Code. Civ. Proc. Sections 709.030, 695.010 and 697.310
One issue that may come up in probate and interpleader cases is whether, in light of Cal. Code. Civ. Proc. § 709.030, a money judgment creditor may create a lien interest in real property in a conservatorship. Section 709.030 provides:
Property in a guardianship or conservatorship estate is not subject to enforcement of a money judgment by a procedure provided in this division, but the judgment creditor may apply to the court in which the guardianship or Conservatorship proceeding is pending under Division 4 (commencing with Section 1400) of the Probate Code for an order requiring payment of the judgment.
Cal. Code Civ. Proc. § 709.030. “[A] procedure provided in this division” refers to Division 2 of Title 9 of the California Code of Civil Procedure, where Section 709.030 is situated. Cal. Code Civ. Proc. § 697.310, which gives rise to a lien against real property when an abstract of judgment is recorded, is also located in Division 2 of Title 9.
California has created a special statutory scheme for conservatorships in Division 4 of the Probate Code (Guardianship, Conservatorship, and Other Protective Proceedings). In the chapter of Division 4 that governs conservatorships, Section 1800 of the probate code makes clear that a purpose of the statutory scheme is to protect the conservatee’s property, stating, “It is the intent of the legislature in enacting this chapter to,” inter alia, “[p]rovide for the proper management and protection of the conservatee’s real and personal property.” Cal. Prob. Code § 1800(g).
An asset of a conservatee, including in his or her living trust, becomes an asset of the conservatorship estate upon the creation of the conservatorship. See Brown v. Labow, 157 Cal. App. 4th 795, 815-816 (2007) (where there was no evidence in the trust document of intent to reserve the right to revoke or amend only to the conservatee, revocable living trust was part of the conservatorship estate).
Although it has not been established by precedential authority, it is possible that, after a conservatorship arises, Cal. Code. Civ. Proc. § 709.030 nullifies the procedures to enforce money judgments found in Division 2 of Title 9.
It is still an open question whether, after a conservatorship arises, Cal. Code. Civ. Proc. § 709.030 nullifies the procedures to enforce money judgments found in Division 2 of Title 9.
In Neiman-Marcus v. Tait, 33 Cal. App. 4th 271, 274-75 (1975), the only published opinion interpreting Section 709.030, a California appellate court was confronted with the application of Section 709.030 at the tail-end of the enforcement of money judgment procedures. In that case, the issue was whether a judgment creditor may execute a levy on personal assets in a conservatorship under writ of execution and the appellate court found that the judgment creditor could not use the procedures of Division 2 to enforce its judgment.
If one only read Tait, one could be tempted to understand Section 709.030 as being a statute that just prevents levies and writs of execution against conservatorship property. However, courts only ever make holdings on the limited facts before them – everything else is dicta (meaning, unnecessary to reach the decision and can be disregarded by future courts) – and Tait only had a seizure, not a lien, before it for adjudication. Thus, a future court interpreting Tait should not interpret Tait‘s inclusion of levies in its holding to mean that liens were implicitly excluded from the protection. Rather, a court evaluating facts which include a lien would still be entering somewhat uncharted territory to determine Section 709.030’s effect on that lien and would have to view Section 709.030 in light of existing case law, the clear terms of the statute, and the purpose of the statute, while using the principles in Tait to the extent applicable.
In making its decision, though addressing the facts in front of it, the California appellate court in Tait emphasized the broad application of Section 709.030, stating, “[the court] must presume that when the Legislature stated in section 709.030 that property in a conservatorship estate is not subject to the procedures for enforcing a money judgment, it meant all of the procedures from beginning to end.” The appellate court succinctly described Section 709.030 as a statute that “expressly provides that the enforcement of judgments law does not apply to property in a conservatorship estate.” In Tait, the California appellate court explicitly rejected, in light of Section 709.030, the judgment creditor’s attempts to rely on several of Division 2’s provisions.
Ordinarily, judgment liens attach under Cal. Code Civ. Proc. §§ 695.010, 697.310, and 697.340, all sections within Division 2 of Title 9 of the California Code of Civil Procedure. Thus, Tait suggests, but does not resolve, that a court should find that Section 709.030 would prevent a creditor from taking advantage of a judgment lien as well.
There are other reasons it could make sense for a court to find that judgment liens under Division 2, Title 9, were limited by Section 709.030. Protection of property in the jurisdiction of a special court, including protection from the filing of liens against that property, is also a concept found in Federal bankruptcy law. Under 11 U.S.C. § 362, the filing of a bankruptcy petition operates as a stay of “any act to create, perfect, or enforce any lien against property of the estate.” 11 U.S.C. § 362(a)(4). The clear terms of Cal. Code Civ. Proc. § 709.030 impose a similar limitation on the law of enforcement of money judgments while property is in the jurisdiction of the probate court. While applying the limitations of Section 709.030 to lien priority cases may, in some circumstances, cause “first in time, first in right” issues between federal and private parties (federal liens arise under a different statutory scheme), “first in time, first in right” is a common-law principal, not a statutory one. The common-law principle of “first in time, first in right” cannot, and should not, justify ignoring the plain text of statutes enacted by state or federal legislatures.
Lastly, reading Section 709.030 as a statute that only applies to writs of execution and levies effectively renders the statute meaningless because a specific exemption for property in a conservatorship already exists within chapter 3 of Division 2, dealing with execution of judgments. Cal. Code. Civ. Proc. § 699.720, subdivision (a), provides, among other things, that property in a guardianship or conservatorship estate is not subject to execution. Cal. Code. Civ. Proc. § 699.720(a)(10); Tait, 33 Cal. App. 4th at 274. The legislature knows how to draw a more precise statute where so inclined, and has already made such a statute with respect to executions. In drafting Section 709.030, the California legislature used broad language that encompassed the entirety of Division 2. It should be presumed that the state legislature intended precisely what it said.
Posted on 05/05/2019 by Daniel W. Layton.