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Legalease
Legalease, Lawyer
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Experience:  15 years exp all aspects of general law
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What is the statute of limitations on attorney fees in California?

Customer Question

What is the statute of limitations on attorney fees in California? An attorney is going after me for fees that were billed to me back in 1995.
Submitted: 1 year ago.
Category: Legal
Expert:  Legalease replied 1 year ago.

Hello there

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Is this the first time that you have heard anything about ANY legal fees still being owed to this attorney (that you remember)?

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Has the attorney actually filed a civil lawsuit against you at this point?

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Can you tell me what the original case was about? And why the fees were not paid?

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Once you answer these questions, please give me about 20 mins to research a few things and get back to you on these matters

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MARY

Customer: replied 1 year ago.

Hello Mary, and thanks for your help!! I was awarded $850 and $1,750 in fees to be paid to my ex-wife's divorce attorney back in 1995. I thought I had paid those fees but the bank no longer has the checks or statements showing that. So I cannot prove that I paid him even though I did. Since 1995 or 1996, last week was the FIRST time I heard from him about those fees. I told him that I paid them but cannot prove I did. It's been 17 years! With interest he wants $6,900. I just donated a kidney to current wife and our co-pays and not covered medical bills are drowning us as is. He filed a law suite against me and the hearing is 8/23/2013. Is he just fishing? I know for a fact that he lost his right to practice law in California per the online bar site, and that he is in massive arrears with the IRS, so he is desperate I suppose. What should I do?

Expert:  Legalease replied 1 year ago.

Dan --

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Can I ask you a few more questions? I do not like the manner in which this attorney has approached this any more than you do -- but I am wondering if his complaint states that he already has a judgment issued against you by the court for the attorney fees ( were those fees in that case awarded by a judge ?) Or, was this man your own attorney and the fees were part of a written contract that you had with him directly? My first thought was also that the attorney is way past the statute of limitations of 4 years for a written contract in California --- however, if those fees were awarded to him through a court order judgment in a divorce with your ex and he was your ex's attorney , then we need to look at the laws concerning collecting a judgment in CA and not collecting pursuant to a long ago written contract.

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So, please let me know what the answer to this question whether you are dealing with collection on a contract or collection on a judgment.

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MARY

Customer: replied 1 year ago.

Mary, he is my ex-wife's attorney during our divorce from the early 90s. He does have a judgement against me for those fees, from 1994 or 1995 at the latest. But since then, I have not heard anything from him, until just last week.


 


Isn't there a legal thing called "latches"? He could have put a lien on my home, but did not. He could have sent out a
writ of execution to the bank and been paid, but did not. He could have
brought you in for a debtor exam 18 years ago, but did not. This confirms to me that I paid in full back in 1995 and he is only bringing this because he has no money to reinstate his law license by paying the clients he cheated (per the California bar web site for Robert Duskis).


 


Mary, thanks for working this!! :-)

Expert:  Legalease replied 1 year ago.

Hello again Dan ---

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You are absolutely correct in everything that you are saying (there is a doctrine of "laches" in the law that basically states that a person waited too long to bring a claim against someone -- but it is not a bright line cut off like a statute of limitations). I actually approached this initially as a statute of limitations issue and found answer forms for you to file to plead against him regarding that defense (that is why it has taken me so long on responses) -- then I realized that he could have a judgment which is a different matter entirely. Judgments in CA are good for ten (10) years from the date that the judgment is issued against someone. Here is the bad news -- a judgment creditor (him) is permitted to renew the judgment for an additional 10 years so long as he applies to the court that issued the judgment before the expiration of the first 10 year judgment period. Here is some information from the CA courts website that explains the renewing of a judgment -- http://www.courts.ca.gov/8207.htm There are a few hoops he had to jump through but being a lawyer (even a disbarred one) he most likely met the requirements IF he remembered to renew the judgment in the first place.

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What you have to do is call or go to the clerk's office where the original judgment was issued and ask them to look up the case to see if the judgment was renewed and if it has been renewed you need to make sure that it was within 10 years of the first judgment. If it appears that he did this all legitimately, then I am afraid that the doctrine of laches will not get you out of paying this completely unless you can show that it was paid previously. However, I believe that you should still prepare and send an answer and state that you do not owe him any money because it was paid and even if you did owe money, the amount he is seeking to recover is excessive under the circumstances (you may be able to get the amount lowered by the court) -- and you should also use laches as a defense and state that the plaintiff has known where you are all of these years and did not make any moves to collect on this judgment because plaintiff was hoping that the passage of time would aid him in being paid a second time for something he was laready paid for (he was counting on the banks not being able to reproduce the proof of payment for you).

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Please let me know what further questions that you have in this matter and I will be happy to answer them and review anything else to do with this that you would like me to review. Even after you press a positive rating below you can still return to this question and post related follow up questions and I will answer them for you.

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MARY

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Please press the 3rd, 4th or 5th smile face below so I will be paid for my time. I am paid NOTHING unless you press a POSITIVE rating below (I do not recieve a paycheck). Pressing the 3rd, 4th or 5th smile face below will NOT cost you any additional money -- it simply acts as the trigger to Just Answer to pay me for my time. THANK YOU VERY MUCH !!!

Legalease, Lawyer
Category: Legal
Satisfied Customers: 14619
Experience: 15 years exp all aspects of general law
Legalease and 4 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

Mary, thank you for your hard work. I do not believe that he renewed the judgement within the 10 year mark. I never received any letter, or subpoena. Nothing until 17+ years later. I will verify this, as you mentioned by asking the court archives to see if he did renew. Now if he did not renew, what are his chances of winning this? Right now I can say with 98% certainty that he never renewed. I have lived at the same home since that divorce and 12 years going forward, and had the same cell phone number, so he could've easily have contacted me.

Customer: replied 1 year ago.

Mary, regarding the law site you posted above, does it matter the amount owed? For example the total is under $10,000...does what you wrote still stand?

Expert:  Legalease replied 1 year ago.

Hello again Dan --

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If he did not renew the judgement then he is not entitled to collect on it, period. It is over and it cannot be brought into court again against you once it is dismissed for failure to renew the judgment. When you go to court, he will pull out the judgment and try to rely on it and then it is up to you to ask the court the date of the judgment and ask the court to require proof that he renewed the judgment before the 10th anniversary of the original Judgment. If he fails to produce it there in the court then immediately ask the court to dismiss the case against you because the judgment is expired and can no longer be enforced through the courts / by using the courts.

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Regarding the amount of the judgment and the ten year cutoff date -- that does not really matter -- it can be a 10 dollar judgment or a 50K judgment -- the 10 year rule still applies. My point is to question the amount of the judgment plus the costs and fees that he tacked onto it -- you want to ask the court for an accounting of where he is coming up with his calculations to make the judgment amount so much higher than it was originally. If he actually did renew the judgment and you are ordered to pay it by the court then you definitely want to ask the court for him to give you an accounting of where he is getting these amounts from and how the amounts are justifiable on top of the original amount.

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--

MARY

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Customer: replied 1 year ago.

Thanks Mary. Have a nice weekend!

Expert:  Legalease replied 1 year ago.
Best of Luck Dan !!
Customer: replied 1 year ago.


Hello Mary,


 


The disbarred attorney that is suing me for attorney fees from 17+ years ago told me in a letter, that latches cannot be applied to attorney fees for a family law issue (in California). I have cut & pasted his letter to me saying as much below. Please go over this and let me know what you think. I'm ready to pay again.


 


From Disbarred Attorney Robert Duskis:


 




Hi Dan.



I have done extensive research on the issues you raise in your last 2 emails. The answers to your concerns are as follows:




First, some people (and even some attorneys) are under the mistaken belief that all orders or judgments, if not renewed within 10 years, are automatically extinguished or that the defense of laches applies. Although this is the general rule, it does not apply to Family Law orders such as the Family Law Attorney Fee order that I have against you. The law in this regards XXXXX XXXXX family law orders (except as to orders payable to the State of California) is covered by Family Code Section 291, which provides as follows:



§ 291.



(a) A money judgment or judgment for possession or sale of property that is made or entered under this code, including a judgment for child, family, or spousal support, is enforceable until paid in full or otherwise satisfied.



(b) A judgment described in this section is exempt from any requirement that a judgment be renewed. Failure to renew a judgment described in this section has no effect on the enforceability of the judgment.




 



(c) A judgment described in this section may be renewed pursuant to Article 2 (commencing with Section 683.110) of Chapter 3 of Division 1 of Title 9 of Part 2 of the Code of Civil Procedure. An application for renewal of a judgment described in this section, whether or not payable in installments, may be filed:



(1) If the judgment has not previously been renewed as to past due amounts, at any time.



(2) If the judgment has previously been renewed, the amount of the judgment as previously renewed and any past due amount that became due and payable after the previous renewal may be renewed at any time after a period of at least five years has elapsed from the time the judgment was previously renewed.



(d) In an action to enforce a judgment for child, family, or spousal support, the defendant may raise, and the court may consider, the defense of laches only with respect to any portion of the judgment that is owed to the state.



(e) Nothing in this section supersedes the law governing enforcement of a judgment after the death of the judgment creditor or judgment debtor.



(f) On or before January 1, 2008, the Judicial Council shall develop self‑help materials that include: (1) a description of the remedies available for enforcement of a judgment under this code, and (2) practical advice on how to avoid disputes relating to the enforcement of a support obligation. The self‑help materials shall be made available to the public through the Judicial Council self‑help Internet Web site.



(g) As used in this section, "judgment" includes an order.” (Emphases added)




To go into a little more detail on this point, I would refer you to the following:



1. Laches (NOT available on Family Law orders) Also general rules:


A. Defense is not available to action at law (e.g. on contract or suit on Judgments).



 



(1) Abbott v. City of Los Angeles (1958) 50 Cal.2d 438, (Laches not available on actions at law and contract actions are actions at law) “Plaintiffs are likewise correct in their contention that their second causes of action, for money judgments, constitute actions at law and therefore are not subject to the equitable defense of laches. It is provided in section 592 of the Code of Civil Procedure that "In actions ... for money claimed as due upon contract, or as damages for breach of contract, ... an issue of fact must be tried by a jury, unless a jury trial is waived ..." This section was framed with a view of adopting the principle that the constitutional guaranty of the right to jury trial applies only to common law actions and not to suits in equity. (See Vallejo etc. R.R. Co. v. Reed Orchard Co. (1915), 169 Cal. 545, 556 ; 29 Cal.Jur.2d 482‑485, and cases there cited; 18 Cal.Jur.2d 140‑141; 1 Cal.Jur.2d 620‑622.) Inasmuch as the second causes of action seek to recover money due as the vested contractual right of plaintiffs (see Allen v. City of Long Beach (1955), supra, 45 Cal.2d 128, 131 , and cases there cited), it is clear that such causes are actions at law rather than in equity. (See also Philpott v. Superior Court (1934), 1 Cal.2d 512 [95 A.L.R. 990]; Brownrigg v. deFrees (1925), supra, 196 Cal. 534, 539 .) The fact that both equitable (declaratory judgment) and legal (money judgment based on contract) relief are requested in the same action does not, for example, deprive plaintiff of a right to a jury trial on the legal issues or render all issues and relief sought equitable in nature. (Robinson v. Puls (1946), 28 Cal.2d 664, 665‑666 .) Inasmuch as laches is not available as a defense to an action at law (Mandracio v. Bartenders Union, Local 41 (1953), 41 Cal.2d 81, 85 ) even though combined with the cumulative remedy of declaratory relief (see Code Civ. Proc., section 1062; Weber v. Marine Cooks' & Stewards' Assn. (1954), 123 Cal.App.2d 328, 332 ), it follows that it is not available to defendants here as a defense to the causes of action seeking money judgments.”


(2) United States Capital Corp. v. Nickelberry (1981) 120 CA3d 864, 174 CR 814. “The defense of laches is not available in an action at law. An action based on a judgment is an action based on contract. The judgment becomes a debt which the judgment debtor is obligated to pay and the law implies a contract on his part to pay it. (Minor v. Minor, 175 Cal.App.2d 277, 279.) In Abbott v. City of Los Angeles, 50 Cal.2d 438, 462, the court stated: "Inasmuch as the second causes of action seek to recover money due as the vested contractual right of plaintiffs ... it is clear that such causes are actions at law rather than in equity.... Inasmuch as laches is not available as a defense to an action at law ... it follows that it is not available to defendants here as a defense to the causes of action seeking money judgments."


(3) C.C.P. 592: “In actions for the recovery of specific, real, or personal property, with or without damages, or for money claimed as due upon contract, or as damages for breach of contract, or for injuries, an issue of fact must be tried by a jury, unless a jury trial is waived, or a reference is ordered, as provided in this Code. Where in these cases there are issues both of law and fact, the issue of law must be first disposed of. In other cases, issues of fact must be tried by the Court, subject to its power to order any such issue to be tried by a jury, or to be referred to a referee, as provided in this Code.” (Emphasis added)



B. Made clear by Family Code Section 291 that time delay (laches) is not a factor in enforcement of any family code money order except as to that owed to the State. That section provides:


§ 291.



(a) A money judgment or judgment for possession or sale of property that is made or entered under this code, including a judgment for child, family, or spousal support, is enforceable until paid in full or otherwise satisfied.



(b) A judgment described in this section is exempt from any requirement that a judgment be renewed. Failure to renew a judgment described in this section has no effect on the enforceability of the judgment.




 



(c) A judgment described in this section may be renewed pursuant to Article 2 (commencing with Section 683.110) of Chapter 3 of Division 1 of Title 9 of Part 2 of the Code of Civil Procedure. An application for renewal of a judgment described in this section, whether or not payable in installments, may be filed:



(1) If the judgment has not previously been renewed as to past due amounts, at any time.



(2) If the judgment has previously been renewed, the amount of the judgment as previously renewed and any past due amount that became due and payable after the previous renewal may be renewed at any time after a period of at least five years has elapsed from the time the judgment was previously renewed.



(d) In an action to enforce a judgment for child, family, or spousal support, the defendant may raise, and the court may consider, the defense of laches only with respect to any portion of the judgment that is owed to the state.



(e) Nothing in this section supersedes the law governing enforcement of a judgment after the death of the judgment creditor or judgment debtor.



(f) On or before January 1, 2008, the Judicial Council shall develop self‑help materials that include: (1) a description of the remedies available for enforcement of a judgment under this code, and (2) practical advice on how to avoid disputes relating to the enforcement of a support obligation. The self‑help materials shall be made available to the public through the Judicial Council self‑help Internet Web site.



(g) As used in this section, "judgment" includes an order.



History. Amended by Stats 2007 ch 130 (AB 299), s 87, eff. 1/1/2008.



Added by Stats 2006 ch 86 (AB 2126), s 4, eff. 1/1/2007. (Current through 6/5/11)



(1) Very recent case of Schelb, et.al. v. Stein, et.al. (filed 12/17/10) __ C.A.4th __ made this very clear and shows that any possible defense of laches would only apply as to judgments which had already expired (so pre 1/1/84) 10 years earlier.



“The paramount issue in this case is whether MRTA applies to family court money judgments governed by section 291. The parties have not cited and we have not found authority directly addressing this issue. We review the trial court’s interpretation of the two statutory schemes de novo. (In re Tobacco II Cases (2009) 46 Cal.4th 298, 311.)



A. MRTA




 



Following a study and recommendation of the California Law Revision Commission, MRTA was enacted in 1982 “in order to make real property more freely alienable and marketable. ([Civ. Code, ] § 880.020, subd. (a)(1).) To further this goal the legislation sought to simplify and facilitate real property title transactions by enabling persons to determine the status and security of recorded real property titles from an examination of recent records. ([Civ. Code, ] § 880.020, subds. (a)(4) & (b); Worthington v. Alcala (1992) 10 Cal.App.4th 1404, 1409.)” (Miller v. Provost (1994) 26 Cal.App.4th 1703, 1707‑1708; see also Severns v. Union Pacific Railroad Co. (2002) 101 Cal.App.4th 1209, 1219.) This statutory scheme limits the time for exercising the power of sale under a deed of trust. (Miller v. Provost, supra, 26 Cal.App.4th at p. 1708.)



In enacting the recommendation of the Law Revision Commission, the Legislature declared: “‘Interests in real property... created at remote times, whether or not of record, often constitute unreasonable restraints on alienation and marketability of real property because the interests are no longer valid or have been abandoned or have otherwise become obsolete. [¶]... Such interests... produce litigation to clear and quiet titles, cause delays in real property title transactions, and hinder marketability of real property. [¶]... Real property title transactions should be possible with economy and expediency. The status and security of recorded real property titles should be determinable to the extent practicable from an examination of recent records only.’ ([Civ. Code, ] § 880.020, subd. (a)(2), (3), & (4), italics added.)” (Severns v. Union Pacific Railroad Co., supra, 101 Cal.App.4th at pp. 1219‑1220.) The Legislature expressly provided that MRTA was to be “liberally construed to effect the legislative purpose.” (Civ. Code, § 880.020, subd. (b).)



Civil Code section 882.020, subdivision (a), a MRTA provision, states that where the final maturity date is ascertainable, a “deed of trust, or other instrument that creates a security interest of record in real property to secure a debt” expires 10 years from the final maturity date. In this case, that date was February 1, 1994, the date stated in both the original note and the 1991 modification. It is undisputed that Ms. Stein failed to avail herself of any of the remedies provided in MRTA to extend her secured interest in the Maclay property.



Where a deed of trust or other security interest expires under the MRTA, it is rendered “unenforceable by any means commenced or asserted thereafter and is equivalent for all purposes to a certificate of satisfaction, reconveyance, release, or other discharge of the security interest, and execution and recording of a certificate of satisfaction, reconveyance, release, or other discharge is not necessary to terminate or evidence the termination of the security interest....” (Civ. Code, § 882.030.) Civil Code section 880.240 lists certain interests which are not subject to expiration under the MRTA; family law judgments are not among them.[2]



B. Family Code section 291




 



The present version of section 291, enacted in 2006, also is the product of a report and recommendation by the California Law Revision Commission. (Recommendation Relating to Enforcement of Judgments Under the Family Code (Nov. 2005) 35 Cal. Law Revision Com. Rep. (2005) p. 161 (hereafter Law Revision Commission Report).) The Law Revision Commission sought to reduce confusion created by three different rules governing the period for enforcement of a money judgment or judgment for possession of property under the Family Code. (Id. at pp. 163‑164.) The three rules identified by the Commission were: “(1) A judgment for possession or sale of property is subject to the ten‑year enforcement period and renewal procedure provided by general enforcement of judgments law [former § 291]. [¶] (2) A judgment for support is enforceable until paid in full and is not subject to the equitable defense of laches.... The judgment may be renewed to update the amount owed on the judgment [former Fam. Code, § 4502]. (3) A non‑support money judgment has no stated time period for enforcement and is not subject to the judgment renewal procedure or any exemption from laches [Code Civ. Proc., § 683.020].” (Id. at p. 165.)



In adopting the recommendation of the Law Revision Commission, the Legislature repealed the former version of section 291 and enacted the present version: “(a) A money judgment... that is made or entered under this code, including a judgment for child, family, or spousal support, is enforceable until paid in full or otherwise satisfied.” (Added by Stats. 2006, ch. 86, § 4.) Such family law judgments are expressly exempted from the requirement that a judgment be renewed, and failure to renew a judgment is declared to have “no effect on the enforceability of the judgment.” (§ 291, subd. (b).) Although not required, a judgment may be renewed under section 291, subdivision (c).[3]



The Legislature expressly acknowledged existing law regarding the enforcement of a judgment after the death of the judgment creditor or debtor, and provided: “Nothing in this section supersedes the law governing enforcement of a judgment after the death of the judgment creditor or judgment debtor.” (§ 291, subd. (e).) No similar provision relating to MRTA was included in the legislation.



C. Statutory Interpretation



Established principles of statutory construction guide our analysis of the interaction of the MRTA with section 291. “When interpreting a statute, we endeavor to harmonize it with other enactments to the extent possible. (Marathon Entertainment, Inc. v. Blasi (2008) 42 Cal.4th 974, 991; see Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (2006) 40 Cal.4th 1, 15, fn. 11.)” (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1095‑1096.) “The law shuns repeal by implication and, if possible, courts must maintain the integrity of both statutes.” (Hughes Electronics Corp. v. Citibank Delaware (2004) 120 Cal.App.4th 251, 268.) “We presume that the Legislature, when enacting a statute, was aware of existing related laws and intended to maintain a consistent body of rules. [Citation.]” (Manhattan Loft, LLC v. Mercury Liquors, Inc. (2009) 173 Cal.App.4th 1040, 1055‑1056.)




 



In addition to these principles, we also apply the established rule that “a specific statutory provision relating to a particular subject controls over a more general provision. That rule obtains even though the general provision standing alone is sufficiently broad to include the subject to which the specific statute relates. (Civ. Code, § 3534.) ‘In the construction of a statute the intention of the Legislature... is to be pursued, if possible; and when a general and particular provision are inconsistent, the latter is paramount to the former. So a particular intent will control a general one that is inconsistent with it.’ (Code Civ. Proc., § 1859.) ‘t is... settled that when a special and a general statute are in conflict, the former controls. (Code Civ. Proc., § 1859.)’” (Hughes Electronics Corp. v. Citibank Delaware, supra, 120 Cal.App.4th at p. 270.)



D. Analysis



MRTA expressly is confined to security interests in real property. Nothing in its language addresses the enforceability of the underlying obligation secured by the deed of trust or note on real property. As we have discussed, Civil Code section 882.030 provides that an expired security interest is “equivalent for all purposes to a certificate of satisfaction, reconveyance, release, or other discharge of the security interest....” (Italics added.) MRTA does not state that the underlying obligation secured by the expired security interest also is satisfied when the security interest expires.



In contrast, section 291 addresses family law judgments and orders rather than any security instrument. MRTA was in effect when the Legislature enacted the present version of section 291 in 2006. Subdivision (e) of section 291 expressly states that the statute does not supersede the law governing enforcement of a judgment after a judgment debtor or creditor dies. A similar exception could have been made for security instruments coming within MRTA, but was not. “‘We must assume that the Legislature knew how to create an exception if it wished to do so....’ (City of Ontario v. Superior Court (1993) 12 Cal.App.4th 894, 902.)” (California Fed. Savings & Loan Assn. v. City of Los Angeles (1995) 11 Cal.4th 342, 349.)



Mindful of the mandate that “[t]wo codes ‘“must be read together and so construed as to give effect, when possible, to all the provisions thereof, ”’ [citation]” (DeVita v. County of Napa (1995) 9 Cal.4th 763, 779), we conclude that section 291 does not bar the expiration of an instrument securing a family law judgment. We also conclude that the underlying family law judgment was not rendered unenforceable by the terms of MRTA. The trial court correctly found that while Ms. Stein could not enforce the note or deed of trust on the Maclay property, Mr. Schelb was still obligated to satisfy the remainder of the family law judgment, with interest. We recognize that this may make collection of the remainder due on the family court judgment more difficult, but Ms. Stein failed to pursue an action on the note or deed of trust on the Maclay property until long after those interests had expired under MRTA. It would be contrary to the purposes of MRTA to allow her to delay an effort to enforce those interests from 1988 to 2007 when she filed her cross‑complaint, a period of nearly 20 years.



III




 



Mr. Schelb questions whether it is fair for Ms. Stein to invoke section 291, which was enacted in 2006, long after the 1991 modification. He cites case law for the proposition that a new law may not apply to an earlier transaction setting the rights and obligations of the parties. He also invokes the principle that new enactments should be applied prospectively absent a clear legislative expression that statutes be applied retroactively. But, as he acknowledges, the Legislature expressly provided that provisions of the Family Code do apply retroactively. (See In re Marriage of Fellows (2006) 39 Cal.4th 179, 186 [discussing January 1, 1994 operative date of the Family Code and section 4 of the code, the latter provides that amendments to the Family Code apply retroactively unless otherwise provided by law].)



Subdivision (h) of section 4 of the Family Code allows the court to apply either the new Family Code or the old law “to the extent reasonably necessary” to mitigate “substantial interference” with the rights of the parties in connection with an event that occurred before the operative date of the Family Code.[4] Mr. Schelb argues that once the note matured in 1994, it was rendered void and unenforceable by MRTA 10 years later, in 2004. He also argues that Ms. Stein’s failure to renew the 1988 judgment rendered it a nullity 10 years later. From this he concludes that the family law judgment had been “a dead letter for 8 years” by the time section 291 was enacted in 2006. No authority is cited to support this argument. He argues the trial court erred in concluding that section 291 disposed of the issues between himself and Ms. Stein.



Mr. Schelb’s argument is based on an assumption that he would have fared better under the law in effect before passage of the new version of section 291 in 2006 because Ms. Stein would have had to renew the judgment within 10 years. The law prior to 2006 does not support this argument.



Former section 291, enacted in 2000, provided: “A judgment or order for possession or sale of property made or entered pursuant to this code is subject to the period of enforceability and the procedure for renewal provided by Chapter 3 (commencing with Section 683.010) of Division 1 of Title 9 of Part 2 of the Code of Civil Procedure.” (Assem. Bill No. 2126 (2005‑2006 Reg. Sess.) as introduced February 21, 2006, italics added.) Section 683.020 of the Code of Civil Procedure provides a 10‑year period of enforceability for judgments. But former section 291 was expressly limited to a judgment for possession or sale of property. The court in In re Marriage of Wilcox (2004) 124 Cal.App.4th 492, interpreted the former version of section 291 and concluded: “The plain language of Family Code section 291 leaves no doubt that the Legislature did not intend to subject Family Code money judgments to the 10‑year limit for renewal under section 683.130.” (Id. at p. 499.)




 



In Wilcox, the family court had entered an order directing the former husband to make payments to his former wife because of his default on payments required by the judgment of dissolution. The Court of Appeal held that this order was “unequivocally a money judgment” under Code of Civil Procedure section 680.270 which defines “‘money judgment’” as “‘that part of a judgment that requires the payment of money.’” (In re Marriage of Wilcox, supra, 124 Cal.App.4th at p. 499.) In a footnote, the court concluded that the former husband’s argument would fail even if the judgment were premised on his failure to satisfy property equalization payments: “Numerous money judgments result from property disputes of one form or another, but this certainly does not render them judgments for the possession or sale of property.” (Id. at p. 499, fn. 10.)



We are satisfied that the judgment here was not a “judgment or order for possession or sale of property” within the meaning of former section 291, and therefore, Ms. Stein was not required to enforce it within 10 years under that statute. The legislative history of Assembly Bill No. 2126 of the 2005‑2006 regular session, which repealed and reenacted section 291 supports this conclusion. An analysis of Assembly Bill No. 2126 prepared for the Senate Judiciary Committee examined the existing law regarding enforcement of family law judgments or orders. It noted that a judgment for possession or sale of property is subject to a 10‑year enforcement period under former section 291. (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 2126 (2005‑2006 Reg. Sess.) as amended April 20, 2006, p. 2.) It also noted that a judgment for child, family, or spousal support is enforceable until paid in full and is exempt from any requirement that judgments be renewed. (Ibid., citing former § 4502.) The analysis expressly addressed the existing law as to enforceability of family law money judgments not for support: “Existing law does not provide a time period for enforcement of a non‑support money judgment, nor are those judgments exempt from a defense of laches. [Code of Civ. Proc., 683.310.]” (Ibid.)” (Emphases added)



(2) In re Marriage of Wilcox (2004) 124 C.A.4th 492, 21 C.R.3d 315 dealt with a renewal of a money judgment (not for support) that was granted over 10 years after entry. The Court upheld it, saying:


”Ten years passed and Richard still had not satisfied the judgment. On August 21, 2003, Carol filed an application for renewal of her original judgment under section 683.140. On the renewal form, XXXXX XXXXXsted she was renewing the court's order entered on "June 1, 1993, as amended November 19, 1993." Carol's renewal was granted on August 21, 2003, for a total of $583,748.43. This amount included $295,879.07 for the June and November 1993 orders, plus an additional $287,869.36 for interest and filing fees. Carol's renewal was filed more than 10 years from the date of entry of the June 1993 order, but less then 10 years from the date of entry of the November 1993 order.



Shortly thereafter, Richard filed a motion to vacate renewal of judgment with the trial court. In his points and authorities Richard argued Carol's renewed money judgment should be vacated under sections 683.020[3] and 683.130[4] because it was filed more than 10 years after entry of the June 1993 order and therefore should not have been renewed by the clerk.



Carol responded by arguing that section 683.310[5] specifically excludes Family Code judgments from the 10‑year time limit for renewal under section 683.130 and therefore renewal was proper.



In his reply papers in the trial court, Richard argued for the first time that Carol's June 1993 order was not a money judgment, but rather a judgment for the "possession or sale of property" under the meaning of Family Code




 



Page 497



section 291[6] and thus subject to the 10‑year time limit for renewal under section 683.130. Richard further asserted that the November 1993 order did not amend the June 1993 order but rather merely "granted several new awards for interest, attorney fees, and support."



The trial court denied Richard's motion ruling that Family Code section 291 is specifically limited to judgments for the sale or possession of property, and therefore, because the June 1993 order is a Family Code money judgment, it is not subject to the 10‑year time limit for renewal under section 683.130. Because the trial court ruled the June 1993 order was not subject to the 10‑year time limit for renewal under section 683.130, it did not determine the nature of the November 1993 order....



II



RICHARD'S SUBSTANTIVE CONTENTIONS



On appeal Richard contends: (1) that the trial court erred in ruling the June 1993 order was a Family Code money judgment exempt from the 10‑year time limit for renewal under section 683.130, and (2) that because the November 1993 order did not amend the June 1993 order, Carol's August 2003 renewal was untimely with respect to the June 1993 order.



At the outset it should be mentioned that Richard had a duty to provide this court with an adequate record on appeal. (Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 72 [40 Cal.Rptr. 690].) However, in this task, Richard has woefully failed. Richard has failed to provide this court with, among other things, the November 1993 order, the addendum to judgment of dissolution of marriage, and the marital settlement agreement. Despite this Richard argues how their content affected the trial court's decision to deny his motion to vacate renewal of judgment. Although we chose to analyze the case with the materials provided to us, the inadequacy of the record alone provides a basis to dismiss Richard's appeal.



A. Character of the June 1993 Order



Richard argues the June 1993 order resulted from his failure to timely make community property equalization payments, and thus the judgment is for the possession of property under the meaning of Family Code section 291. Neither the law nor the facts support Richard's position. To begin with, nothing in the record includes a single instance where the trial court determined, or even stated, the June 1993 order was premised on Richard's failure to make community property equalization payments. Richard claims this was implied in one of the trial court's statements during the hearing.[9] Richard further suggests that if we are unconvinced by the court's single statement we should review the trial court records for ourselves and confirm that the judgment stemmed from his failure to make community property equalization payments. We decline Richard's invitation to independently



 



Page 499



acquire the records of the trial court. Richard had adequate time to compile a complete record for appeal and we will not take it upon ourselves to fulfill his responsibilities.[10]



Section 680.270 defines a "money judgment" as "that part of a judgment that requires the payment of money." The June 1993 order (which is all we have to base our decision on) ordered Richard to pay Carol $100,000 and $160,000, respectively. It is therefore unequivocally a money judgment.



B. Interpretation of Family Code Section 291



The issue thus becomes whether Family Code section 291 subjects Family Code money judgments to the 10‑year time limit for renewal under section 683.130. We conclude it does not.



Interpretation of a statute entails the resolution of a pure question of law which we review de novo. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432 [101 Cal.Rptr.2d 200].) "'"When interpreting a statute, we must ascertain legislative intent so as to effectuate the purpose of a particular law. Of course our first step in determining that intent is to scrutinize the actual words of the statute, giving them a plain and commonsense meaning. [Citation.] When the words are clear and unambiguous, there is no need for statutory construction or resort to other indicia of legislative intent, such as legislative history."'" (Noel v. River Hills Wilsons, Inc. (2003) 113 Cal.App.4th 1363, 1373 [7 Cal.Rptr.3d 216], quoting National Technical Systems v. Commercial Contractors, Inc. (2001) 89 Cal.App.4th 1000, 1007‑1008 [108 Cal.Rptr.2d 67].)



The plain language of Family Code section 291 leaves no doubt that the Legislature did not intend to subject Family Code money judgments to the 10‑year time limit for renewal under section 683.130.



A maxim of statutory construction states that the expression of certain items in a statute necessarily involves exclusion of other things not expressed. (Fischer v Los Angeles Unified School Dist. (1999) 70 Cal.App.4th 87, 97 [82 Cal.Rptr.2d 452];



Page 500



see also In re Bryce C. (1995) 12 Cal.4th 226, 231 [48 Cal.Rptr.2d 120].) Money judgments are distinct from judgments for the possession or sale of property, and the Legislature confirms this in sections 683.020 and 683.130 by listing "money judgments" and "judgments for the possession or sale of property" separately instead of merely using the term "judgments." The clear import of this is that when the Legislature chooses to use the term "judgments for the possession or sale of property" in a statute, "money judgments" are necessarily excluded.




 



Richard contends that the Legislature was only concerned with exempting support payments from the 10‑year time limit for renewal under section 683.130, and this was its sole purpose in passing section 683.310. He further contends that Family Code section 291 was enacted specifically to subject all nonsupport Family Code judgments to sections 683.020 and 683.130. Given the organization and history of Family Code section 291, Richard's contentions are without merit.



Section 683.310 exempts all judgments made or entered under the Family Code from the 10‑year time limit for renewal outlined in the Civil Code unless the Family Code specifically provides otherwise. Family Code section 291 then specifically provides that those judgments entered for the possession or sale of property are subject to the Civil Code's 10‑year time limit for renewal. If Richard's argument were adopted, Family Code section 291 would essentially repeal section 683.310 because all judgments, except those for support, would now be subject to the 10‑year time limit for renewal. However, the law shuns repeal by implication (Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553, 569 [71 Cal.Rptr.2d 731]), and if this was the result the Legislature had intended it would have explicitly provided in section 683.130 that all Family Code judgments, except those for support, are subject to the Civil Code's 10‑year time limit for renewal.



Additionally, Family Code section 291 and section 683.310 became effective on the same date, September 28, 2000. It must be presumed that the Legislature had existing laws in mind when it enacted a new statute (Voss v. Superior Court (1996) 46 Cal.App.4th 900, 925 [54 Cal.Rptr.2d 225]), and the Legislature would not have enacted section 683.310 to exempt all Family Code judgments if it was, for all practical purposes, reversing the operation of that exemption in a different statute enacted on the same day.



Page 501



The Legislature's goal in enacting Family Code section 291 was solely to subject judgments for the possession or sale of property to the Civil Code's 10‑year time limit for renewal, not exempt only support payments from this time limit.



In fact, the Legislature has already enacted a statute specifically exempting support payments. Family Code section 4502 provides:



"(a) Notwithstanding any other provision of law, a judgment for child, family, or spousal support, including a judgment for reimbursement that includes, but is not limited to, reimbursement arising under Section 17402 or other arrearages, including all lawful interest and penalties computed thereon, is enforceable until paid in full and is exempt from any requirement that judgments be renewed."




 



Family Code section 4502 was made effective January 1, 2003. If the effect of Family Code section 291 was to subject all nonsupport Family Code judgments to a 10‑year time limit for renewal, then Family Code section 4502 would serve no practical purpose.



Richard's argument merely attempts to twist the language of a clearly worded statute and is unable to withstand even minimal scrutiny.



C. Money is Not a Form of Property Under the Family Code



Finally, Richard argues that money is a form of property under the Family Code, and thus it is well within the purview of Family Code section 291. Again, this argument is specious and not based on any sound reasoning. Richard's argument may be understandable if we were discussing which party would get possession of a coin collection sitting in a safe deposit box, because in this context one could perhaps assert that the money should be treated as property.[11] However, this is not the situation here. The June 1993 order simply ordered Richard to pay Carol $260,000, it did not indicate this money should come from any particular place, or even comment as to whether Richard had this amount of money in his possession (which he evidently did not). The June 1993 order is the epitome of a money judgment and Richard's blanket argument that all money is property, regardless of the context, is not well taken.” (Emphases added)



C. As to Family Law orders, issue fully decided by our CA Supreme Court: In re Marriage of Fellows (2006) 39 C.4th 179, 46 C.R.3d 49 (Supreme Court disapproves Garcia and holds that Family Code Section 4502(c)(1) applies retroactively (so Section 291 applies similarly) so the laches defense is simply not available except as to monies owed the County. “We consider whether Family Code section 4502, subdivision (c),[1] applies retroactively and bars a parent from relying on laches to defend an action to enforce a child support order. We hold that it does and affirm the Court of Appeal....


If, in light of the lapse of time and other relevant circumstances, a court concludes that a party's failure to assert a right has caused prejudice to an adverse party, the court may apply the equitable defense of laches to bar further assertion of the right. (Nealis v. Carlson (1950) 98 Cal.App.2d 65, 69.) The parties agree that section 4502(c), by its terms, bars the laches defense in a private action to enforce a child support order. They disagree over its application here. We review the retroactive application of the statute de novo. (In re Marriage of McClellan (2005) 130 Cal.App.4th 247, 254 [30 Cal.Rptr.3d 5].)[2]


1. Section 4502(c) Changed Existing Law


As a general rule, statutes do not operate retroactively[3] "unless the Legislature plainly intended them to do so." (Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243 [62 Cal.Rptr.2d 243](Western Security).) Nonetheless, "a statute that merely clarifies, rather than changes, existing law does not operate retrospectively even if applied to transactions predating its enactment." (Ibid.) Such a statute "may be applied to transactions predating its enactment without being considered retroactive" because it "is merely a statement of what the law has always been." (Riley v. Hilton Hotels Corp. (2002) 100 Cal.App.4th 599, 603 [123 Cal.Rptr.2d 157].)


Page 184



 



In determining whether a statute clarified or changed the law, we give "due consideration" to the Legislature's intent in enacting that statute. (Western Security, supra, 15 Cal.4th at p. 244.) The Legislature's declaration of an existing statute's meaning, while not dispositive, is a factor entitled to consideration. (McClung v. Employment Development Dept. (2004) 34 Cal.4th 467, 473 [20 Cal.Rptr.3d 428] (McClung).) We look to "the surrounding circumstances" as well as the Legislature's intent when determining whether a statute changed or merely clarified the law. (Western Security, at p. 243.)


Here, the Legislature intended to change the law. Explaining the need for the statute, both the Senate Rules Committee and the Senate Judiciary Committee observed that "the equitable defense of laches remains applicable in an action to enforce a support order." (Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Sen. Bill No. 1658 (2001‑2002 Reg. Sess.) as amended July 2, 2002, p. 2; Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1658 (2001‑2002 Reg. Sess.) May 7, 2002, p. 2.) [4] According to the Senate Rules Committee, the enactment of section 4502(c) would "change that" by "substantially restricting the laches defense in support enforcement cases." (Assem. Floor Analysis, 3d reading analysis of Sen. Bill No. 1658 (2001‑2002 Reg. Sess.) as amended July 2, 2002, p. 3, italics added.) Thus, section 4502(c) would "[s]et[] forth new statutory restrictions on the use of the common law defense of laches in support enforcement actions." (Assem. Judiciary Com., Analysis of Sen. Bill No. 1658 (2001‑2002 Reg. Sess.) June 25, 2002, p. 2, italics added.) In doing so, it would close "a loophole that allow[ed] child support obligors to evade responsibility for their debts." (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1658 (2001‑2002 Reg. Sess.) May 7, 2002, p. 3.) "By amending the statute to close the loophole, the Legislature sought to change the law." (City of West Hollywood v. 1112 Investment Co. (2003) 105 Cal.App.4th 1134, 1145.) [130 Cal.Rptr.2d 168]


A review of the law before the enactment of section 4502(c) confirms that the statute did effect a change. "Prior to 1992, judgments for child and spousal support expired within a stated period of years." (In re Marriage of Fogarty & Rasbeary (2000) 78 Cal.App.4th 1353, 1359 [93 Cal.Rptr.2d 653] (Fogarty).) California courts had recognized a laches defense in spousal support cases but held that the defense did not apply to claims for arrearages brought within the statutory enforcement period. (See, e.g., DiMarco v. DiMarco (1963) 60 Cal.2d 387, 394 [33 Cal.Rptr. 610]; Leiden v. Hudson (1979) 95 Cal.App.3d 72, 74‑75 [156 Cal.Rptr. 849].) In 1992 and 1993, however, the Legislature made all support orders enforceable "until paid in


Page 185


full." (Civ. Code, former § 4384.5, now Fam. Code, § 4502, subd. (a).)[5] In doing so, the Legislature cast some doubt on the viability of the laches defense in support actions.


However, the court In re Marriage of Plescia (1997) 59 Cal.App.4th 252, 262 [69 Cal.Rptr.2d 120] (Plescia), held that the legislative changes in 1992 and 1993 did not eliminate the laches defense in actions for spousal support arrearages. Three years later, the Fogarty court followed Plescia and recognized laches in actions for child support arrearages. (Fogarty, supra, 78 Cal.App.4th at p. 1364.) These precedents were consistently followed until the enactment of section 4502(c). [6] The Legislature may certainly amend a statute to overrule a judicial decision. But, in doing so it changes the law. (See McClung, supra, 34 Cal.4th at pp. 473‑474.)



 



In re Marriage of Cordero (2002) 95 Cal.App.4th 653 [115 Cal.Rptr.2d 787], does not alter our conclusion. The Cordero court disagreed with the reasoning of Plescia, supra, 59 Cal.App.4th 252, and opined that support orders less than 10 years old would not be subject to a laches defense. (Cordero, at pp. 664‑665.) The court acknowledged, however, that its observation was dictum. (Id. at p. 666, fn. 17.) Thus, there is nothing to suggest that the Legislature enacted section 4502(c) in response to any controversy created by Cordero on this point. Indeed, the legislative history behind section 4502(c) is replete with references to Plescia, Fogarty, Hamer, Dancy, and Copeman, but makes no mention of Cordero.[7] Accordingly, we conclude that the Legislature enacted section 4502(c) to change existing law, not to clarify a controversy over its interpretation.


Page 186


2. The Legislature Intended That Section 4502(c) Apply Retroactively


Before section 4502(c) became effective on January 1, 2003, a viable laches defense would have barred Moyse's claim. The statute applies to this case only if the Legislature intended to give it retroactive effect. We conclude that it did.


While nothing in the language or legislative history of section 4502(c) speaks directly to retroactive application, section 4 of the Family Code provides guidance. The Family Code was enacted in 1992, and made operative on January 1, 1994, to create a unified statutory scheme. (Stats. 1992, ch. 162, p. 463 et seq.) It drew together a number of statutes scattered throughout various parts of the California codes, and enacted some new provisions. Section 4 provides that, in the Family Code, the term "new law" describes either the enactment of the Family Code itself, or future modifications of the code. (§ 4, subd. (a)(1)(A) & (B).)[8] The term "old law" refers to the law in effect before the Family Code was adopted. (§ 4, subd. (a)(2).)


Section 4, subdivision (c) provides: "Subject to the limitations provided in this section, the new law applies on the operative date to all matters governed by the new law, regardless of whether an event occurred or circumstance existed before, on, or after the operative date, including, but not limited to, commencement of a proceeding, making of an order, or taking of an action." Thus, by its terms, section 4, subdivision (c), establishes that amendments to the Family Code apply retroactively unless otherwise provided by law.


The Law Revision Commission comment to section 4 confirms this interpretation. The Commission explains that section 4 "applies both to the act that enacted the Family Code and to any later act that changes the code, whether the change is effectuated by amendment, addition, or repeal of a provision of the code." (Cal. Law Revision Com. com., 29C West's Ann. Fam. Code (2004 ed.) foll. § 4, p. 7, italics added.) The comment then notes: "The general rule prescribed in subdivision (c) is that a new law applies immediately on its operative date to all matters, including pending proceedings," (ibid.) and that section 4 governs the "substantive provisions" of the Family Code. (Cal. Law Revision Com. com., at p. 8.) Thus, as a general rule, future changes to the Family Code apply retroactively.


Page 187



 



We reached a similar conclusion in Rice, supra, 28 Cal.4th at page 100, where we held that the 1995 amendments to Probate Code section 21350 applied retroactively to "instruments executed before the amendments' effective date." Specifically, we found that section 3 of the Probate Code "mandates application of the law as amended in 1995, even though the trust and will were executed prior to that amendment's effectiveness." (Rice, at p. 99.) Section 4 of the Family Code is "comparable" to section 3 of the Probate Code (Cal. Law Revision Com. com., 29C West's Ann. Family Code, supra, foll. § 4, p. 7) and contains virtually identical language.[9] Thus, Rice is highly persuasive and consistent with our conclusion that section 4502(c) applies retroactively absent some exception to the rule of retroactivity found in section 4 of the Family Code.[10] In re Marriage of Wood (1995) 37 Cal.App.4th 1059 [44 Cal.Rptr.2d 236] is disapproved to the extent it conflicts with our opinion today, because the Wood court did not adequately consider the language and history of section 4.


3. Section 4, Subdivisions (f) and (g) Do Not Bar Retroactive Application Here


Notwithstanding the general rule of retroactivity established by section 4, subdivision (c), Fellows contends the exceptions found subsequently in subdivisions (f) and (g), bar such application here. The argument fails.


a. Section 4, Subdivision (f)


Subdivision (f) of section 4 provides that: "No person is liable for an action taken before the operative date that was proper at the time the action was taken, even though the action would be improper if taken on or after the operative date, and the person has no duty, as a result of the enactment of the new law, to take any step to alter the course of action or its consequences." Fellows creatively argues retroactive application would impose new duties on him: (1) to indefinitely preserve written proof of his compliance with the New York support order, and (2) to strictly comply with and refuse to orally modify the order. His contention lacks merit.


Page 188


Section 4502(c) placed no new duties on Fellows. Both before and after its enactment, Fellows had a duty to pay his child support, and could establish compliance through testimony alone. The elimination of a laches defense did not create some novel proof requirement. Even before the enactment, prudence would have counseled preservation of written payment records. Indeed, success on a laches claim is always uncertain because it is an equitable remedy that depends on "the facts and circumstances of the particular case." (Austin v. Hallmark Oil Co. (1943) 21 Cal.2d 718, 734.) Assertion of a laches defense seeks an equitable act of grace to relieve the burden of an existing obligation. Elimination of the defense does not create a new duty.


b. Section 4, Subdivision (g)


Subdivision (g) of section 4 is also inapplicable here. It provides that "f the new law does not apply to a matter that occurred before the operative date, the old law continues to govern the matter notwithstanding its repeal or amendment by the new law." (Ibid.) According to Fellows, subdivision (g) limits the retroactivity rule to procedural changes. He contends section 4502(c) is a substantive change and must, therefore, apply prospectively. Nothing in the text or history of section 4 suggests an intent to distinguish between procedural and substantive changes in applying the rule of retroactivity. There is no reasoned basis for adopting such a distinction especially when "California has rejected this type of classification" in determining whether a statute has retroactive effect. (Western Security, supra, 15 Cal.4th at p. 244, fn. 4.)


Instead, read together, subdivisions (c) and (g) of section 4 establish that the "old law" will govern only if the "new law" falls within the other statutory exceptions to the rule of retroactivity or does not apply to a "matter" previously governed by the "old law." Section 4502(c) does not fall within either statutory exception and applies in this action to "enforce a judgment for child . . . support."



 


Finally, in In re Marriage of Garcia (1998) 67 Cal.App.4th 693, 698‑699 [79 Cal.Rptr.2d 242], the court declined to apply the 1993 amendments to the Family Code retroactively and held that the pre‑1993 scheme governing support orders still controlled. In re Marriage of Garcia, supra, 67 Cal.App.4th 693, did not, however, consider section 4, and is disapproved to the extent it conflicts with this opinion.”



D. The removal of the defense of laches is retroactive. See In re Marriage of Sabine and Toshio M. (2007) 153 C.A.4th 1203, 1216-1217, where the court stated as follows:



“The doctrines of waiver and estoppel have their place in support proceedings. (See In re Marriage of Damico, supra, 7 Cal.4th at p. 681.) But, in general, arrearages — support payments that are past due — cannot be forgiven. Courts previously recognized an exception to the general rule, applying the



Page 1217



doctrine of laches to bar the recovery of arrearages. (See In re Marriage of Fellows (2006) 39 Cal.4th 179, 184–185 [46 Cal.Rptr.3d 49], [discussing cases].) In 2002, however, the Legislature enacted section 4502, subdivision (c) (now § 291, subd. (d)), limiting the defense of laches to “any portion of the judgment owed to the state.” (Stats. 2002, ch. 304, § 1, italics added; see Stats. 2006, ch. 86, § 4.) This statute is retroactive. (See In re Marriage of Fellows, at pp. 186–188.)” (“Emphasis added)




Please give me a call once you have had a chance to look the enclosed information over.




With best regards,




Robert I. Duskis


Customer: replied 1 year ago.

Mary,


The disbarred attorney that is suing me for attorney fees from 17+ years ago, says in a letter below, that latches are not applicable to my issue. To refresh your memory, he represented my ex-wife in our divorce from 17+ years ago. This was a family law matter in California.


 


Would you please read his response and let me know what you think?


 


Thanks,


Dan Lovell


 


PS Here it is below:


 



Hi Dan.



I have done extensive research on the issues you raise in your last 2 emails. The answers to your concerns are as follows:




First, some people (and even some attorneys) are under the mistaken belief that all orders or judgments, if not renewed within 10 years, are automatically extinguished or that the defense of laches applies. Although this is the general rule, it does not apply to Family Law orders such as the Family Law Attorney Fee order that I have against you. The law in this regards XXXXX XXXXX family law orders (except as to orders payable to the State of California) is covered by Family Code Section 291, which provides as follows:



§ 291.



(a) A money judgment or judgment for possession or sale of property that is made or entered under this code, including a judgment for child, family, or spousal support, is enforceable until paid in full or otherwise satisfied.



(b) A judgment described in this section is exempt from any requirement that a judgment be renewed. Failure to renew a judgment described in this section has no effect on the enforceability of the judgment.




 



(c) A judgment described in this section may be renewed pursuant to Article 2 (commencing with Section 683.110) of Chapter 3 of Division 1 of Title 9 of Part 2 of the Code of Civil Procedure. An application for renewal of a judgment described in this section, whether or not payable in installments, may be filed:



(1) If the judgment has not previously been renewed as to past due amounts, at any time.



(2) If the judgment has previously been renewed, the amount of the judgment as previously renewed and any past due amount that became due and payable after the previous renewal may be renewed at any time after a period of at least five years has elapsed from the time the judgment was previously renewed.



(d) In an action to enforce a judgment for child, family, or spousal support, the defendant may raise, and the court may consider, the defense of laches only with respect to any portion of the judgment that is owed to the state.



(e) Nothing in this section supersedes the law governing enforcement of a judgment after the death of the judgment creditor or judgment debtor.



(f) On or before January 1, 2008, the Judicial Council shall develop self‑help materials that include: (1) a description of the remedies available for enforcement of a judgment under this code, and (2) practical advice on how to avoid disputes relating to the enforcement of a support obligation. The self‑help materials shall be made available to the public through the Judicial Council self‑help Internet Web site.



(g) As used in this section, "judgment" includes an order.” (Emphases added)




To go into a little more detail on this point, I would refer you to the following:



1. Laches (NOT available on Family Law orders) Also general rules:


A. Defense is not available to action at law (e.g. on contract or suit on Judgments).



 



(1) Abbott v. City of Los Angeles (1958) 50 Cal.2d 438, (Laches not available on actions at law and contract actions are actions at law) “Plaintiffs are likewise correct in their contention that their second causes of action, for money judgments, constitute actions at law and therefore are not subject to the equitable defense of laches. It is provided in section 592 of the Code of Civil Procedure that "In actions ... for money claimed as due upon contract, or as damages for breach of contract, ... an issue of fact must be tried by a jury, unless a jury trial is waived ..." This section was framed with a view of adopting the principle that the constitutional guaranty of the right to jury trial applies only to common law actions and not to suits in equity. (See Vallejo etc. R.R. Co. v. Reed Orchard Co. (1915), 169 Cal. 545, 556 ; 29 Cal.Jur.2d 482‑485, and cases there cited; 18 Cal.Jur.2d 140‑141; 1 Cal.Jur.2d 620‑622.) Inasmuch as the second causes of action seek to recover money due as the vested contractual right of plaintiffs (see Allen v. City of Long Beach (1955), supra, 45 Cal.2d 128, 131 , and cases there cited), it is clear that such causes are actions at law rather than in equity. (See also Philpott v. Superior Court (1934), 1 Cal.2d 512 [95 A.L.R. 990]; Brownrigg v. deFrees (1925), supra, 196 Cal. 534, 539 .) The fact that both equitable (declaratory judgment) and legal (money judgment based on contract) relief are requested in the same action does not, for example, deprive plaintiff of a right to a jury trial on the legal issues or render all issues and relief sought equitable in nature. (Robinson v. Puls (1946), 28 Cal.2d 664, 665‑666 .) Inasmuch as laches is not available as a defense to an action at law (Mandracio v. Bartenders Union, Local 41 (1953), 41 Cal.2d 81, 85 ) even though combined with the cumulative remedy of declaratory relief (see Code Civ. Proc., section 1062; Weber v. Marine Cooks' & Stewards' Assn. (1954), 123 Cal.App.2d 328, 332 ), it follows that it is not available to defendants here as a defense to the causes of action seeking money judgments.”


(2) United States Capital Corp. v. Nickelberry (1981) 120 CA3d 864, 174 CR 814. “The defense of laches is not available in an action at law. An action based on a judgment is an action based on contract. The judgment becomes a debt which the judgment debtor is obligated to pay and the law implies a contract on his part to pay it. (Minor v. Minor, 175 Cal.App.2d 277, 279.) In Abbott v. City of Los Angeles, 50 Cal.2d 438, 462, the court stated: "Inasmuch as the second causes of action seek to recover money due as the vested contractual right of plaintiffs ... it is clear that such causes are actions at law rather than in equity.... Inasmuch as laches is not available as a defense to an action at law ... it follows that it is not available to defendants here as a defense to the causes of action seeking money judgments."


(3) C.C.P. 592: “In actions for the recovery of specific, real, or personal property, with or without damages, or for money claimed as due upon contract, or as damages for breach of contract, or for injuries, an issue of fact must be tried by a jury, unless a jury trial is waived, or a reference is ordered, as provided in this Code. Where in these cases there are issues both of law and fact, the issue of law must be first disposed of. In other cases, issues of fact must be tried by the Court, subject to its power to order any such issue to be tried by a jury, or to be referred to a referee, as provided in this Code.” (Emphasis added)



B. Made clear by Family Code Section 291 that time delay (laches) is not a factor in enforcement of any family code money order except as to that owed to the State. That section provides:


§ 291.



(a) A money judgment or judgment for possession or sale of property that is made or entered under this code, including a judgment for child, family, or spousal support, is enforceable until paid in full or otherwise satisfied.



(b) A judgment described in this section is exempt from any requirement that a judgment be renewed. Failure to renew a judgment described in this section has no effect on the enforceability of the judgment.




 



(c) A judgment described in this section may be renewed pursuant to Article 2 (commencing with Section 683.110) of Chapter 3 of Division 1 of Title 9 of Part 2 of the Code of Civil Procedure. An application for renewal of a judgment described in this section, whether or not payable in installments, may be filed:



(1) If the judgment has not previously been renewed as to past due amounts, at any time.



(2) If the judgment has previously been renewed, the amount of the judgment as previously renewed and any past due amount that became due and payable after the previous renewal may be renewed at any time after a period of at least five years has elapsed from the time the judgment was previously renewed.



(d) In an action to enforce a judgment for child, family, or spousal support, the defendant may raise, and the court may consider, the defense of laches only with respect to any portion of the judgment that is owed to the state.



(e) Nothing in this section supersedes the law governing enforcement of a judgment after the death of the judgment creditor or judgment debtor.



(f) On or before January 1, 2008, the Judicial Council shall develop self‑help materials that include: (1) a description of the remedies available for enforcement of a judgment under this code, and (2) practical advice on how to avoid disputes relating to the enforcement of a support obligation. The self‑help materials shall be made available to the public through the Judicial Council self‑help Internet Web site.



(g) As used in this section, "judgment" includes an order.



History. Amended by Stats 2007 ch 130 (AB 299), s 87, eff. 1/1/2008.



Added by Stats 2006 ch 86 (AB 2126), s 4, eff. 1/1/2007. (Current through 6/5/11)



(1) Very recent case of Schelb, et.al. v. Stein, et.al. (filed 12/17/10) __ C.A.4th __ made this very clear and shows that any possible defense of laches would only apply as to judgments which had already expired (so pre 1/1/84) 10 years earlier.



“The paramount issue in this case is whether MRTA applies to family court money judgments governed by section 291. The parties have not cited and we have not found authority directly addressing this issue. We review the trial court’s interpretation of the two statutory schemes de novo. (In re Tobacco II Cases (2009) 46 Cal.4th 298, 311.)



A. MRTA




 



Following a study and recommendation of the California Law Revision Commission, MRTA was enacted in 1982 “in order to make real property more freely alienable and marketable. ([Civ. Code, ] § 880.020, subd. (a)(1).) To further this goal the legislation sought to simplify and facilitate real property title transactions by enabling persons to determine the status and security of recorded real property titles from an examination of recent records. ([Civ. Code, ] § 880.020, subds. (a)(4) & (b); Worthington v. Alcala (1992) 10 Cal.App.4th 1404, 1409.)” (Miller v. Provost (1994) 26 Cal.App.4th 1703, 1707‑1708; see also Severns v. Union Pacific Railroad Co. (2002) 101 Cal.App.4th 1209, 1219.) This statutory scheme limits the time for exercising the power of sale under a deed of trust. (Miller v. Provost, supra, 26 Cal.App.4th at p. 1708.)



In enacting the recommendation of the Law Revision Commission, the Legislature declared: “‘Interests in real property... created at remote times, whether or not of record, often constitute unreasonable restraints on alienation and marketability of real property because the interests are no longer valid or have been abandoned or have otherwise become obsolete. [¶]... Such interests... produce litigation to clear and quiet titles, cause delays in real property title transactions, and hinder marketability of real property. [¶]... Real property title transactions should be possible with economy and expediency. The status and security of recorded real property titles should be determinable to the extent practicable from an examination of recent records only.’ ([Civ. Code, ] § 880.020, subd. (a)(2), (3), & (4), italics added.)” (Severns v. Union Pacific Railroad Co., supra, 101 Cal.App.4th at pp. 1219‑1220.) The Legislature expressly provided that MRTA was to be “liberally construed to effect the legislative purpose.” (Civ. Code, § 880.020, subd. (b).)



Civil Code section 882.020, subdivision (a), a MRTA provision, states that where the final maturity date is ascertainable, a “deed of trust, or other instrument that creates a security interest of record in real property to secure a debt” expires 10 years from the final maturity date. In this case, that date was February 1, 1994, the date stated in both the original note and the 1991 modification. It is undisputed that Ms. Stein failed to avail herself of any of the remedies provided in MRTA to extend her secured interest in the Maclay property.



Where a deed of trust or other security interest expires under the MRTA, it is rendered “unenforceable by any means commenced or asserted thereafter and is equivalent for all purposes to a certificate of satisfaction, reconveyance, release, or other discharge of the security interest, and execution and recording of a certificate of satisfaction, reconveyance, release, or other discharge is not necessary to terminate or evidence the termination of the security interest....” (Civ. Code, § 882.030.) Civil Code section 880.240 lists certain interests which are not subject to expiration under the MRTA; family law judgments are not among them.[2]



B. Family Code section 291




 



The present version of section 291, enacted in 2006, also is the product of a report and recommendation by the California Law Revision Commission. (Recommendation Relating to Enforcement of Judgments Under the Family Code (Nov. 2005) 35 Cal. Law Revision Com. Rep. (2005) p. 161 (hereafter Law Revision Commission Report).) The Law Revision Commission sought to reduce confusion created by three different rules governing the period for enforcement of a money judgment or judgment for possession of property under the Family Code. (Id. at pp. 163‑164.) The three rules identified by the Commission were: “(1) A judgment for possession or sale of property is subject to the ten‑year enforcement period and renewal procedure provided by general enforcement of judgments law [former § 291]. [¶] (2) A judgment for support is enforceable until paid in full and is not subject to the equitable defense of laches.... The judgment may be renewed to update the amount owed on the judgment [former Fam. Code, § 4502]. (3) A non‑support money judgment has no stated time period for enforcement and is not subject to the judgment renewal procedure or any exemption from laches [Code Civ. Proc., § 683.020].” (Id. at p. 165.)



In adopting the recommendation of the Law Revision Commission, the Legislature repealed the former version of section 291 and enacted the present version: “(a) A money judgment... that is made or entered under this code, including a judgment for child, family, or spousal support, is enforceable until paid in full or otherwise satisfied.” (Added by Stats. 2006, ch. 86, § 4.) Such family law judgments are expressly exempted from the requirement that a judgment be renewed, and failure to renew a judgment is declared to have “no effect on the enforceability of the judgment.” (§ 291, subd. (b).) Although not required, a judgment may be renewed under section 291, subdivision (c).[3]



The Legislature expressly acknowledged existing law regarding the enforcement of a judgment after the death of the judgment creditor or debtor, and provided: “Nothing in this section supersedes the law governing enforcement of a judgment after the death of the judgment creditor or judgment debtor.” (§ 291, subd. (e).) No similar provision relating to MRTA was included in the legislation.



C. Statutory Interpretation



Established principles of statutory construction guide our analysis of the interaction of the MRTA with section 291. “When interpreting a statute, we endeavor to harmonize it with other enactments to the extent possible. (Marathon Entertainment, Inc. v. Blasi (2008) 42 Cal.4th 974, 991; see Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (2006) 40 Cal.4th 1, 15, fn. 11.)” (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1095‑1096.) “The law shuns repeal by implication and, if possible, courts must maintain the integrity of both statutes.” (Hughes Electronics Corp. v. Citibank Delaware (2004) 120 Cal.App.4th 251, 268.) “We presume that the Legislature, when enacting a statute, was aware of existing related laws and intended to maintain a consistent body of rules. [Citation.]” (Manhattan Loft, LLC v. Mercury Liquors, Inc. (2009) 173 Cal.App.4th 1040, 1055‑1056.)




 



In addition to these principles, we also apply the established rule that “a specific statutory provision relating to a particular subject controls over a more general provision. That rule obtains even though the general provision standing alone is sufficiently broad to include the subject to which the specific statute relates. (Civ. Code, § 3534.) ‘In the construction of a statute the intention of the Legislature... is to be pursued, if possible; and when a general and particular provision are inconsistent, the latter is paramount to the former. So a particular intent will control a general one that is inconsistent with it.’ (Code Civ. Proc., § 1859.) ‘t is... settled that when a special and a general statute are in conflict, the former controls. (Code Civ. Proc., § 1859.)’” (Hughes Electronics Corp. v. Citibank Delaware, supra, 120 Cal.App.4th at p. 270.)



D. Analysis



MRTA expressly is confined to security interests in real property. Nothing in its language addresses the enforceability of the underlying obligation secured by the deed of trust or note on real property. As we have discussed, Civil Code section 882.030 provides that an expired security interest is “equivalent for all purposes to a certificate of satisfaction, reconveyance, release, or other discharge of the security interest....” (Italics added.) MRTA does not state that the underlying obligation secured by the expired security interest also is satisfied when the security interest expires.



In contrast, section 291 addresses family law judgments and orders rather than any security instrument. MRTA was in effect when the Legislature enacted the present version of section 291 in 2006. Subdivision (e) of section 291 expressly states that the statute does not supersede the law governing enforcement of a judgment after a judgment debtor or creditor dies. A similar exception could have been made for security instruments coming within MRTA, but was not. “‘We must assume that the Legislature knew how to create an exception if it wished to do so....’ (City of Ontario v. Superior Court (1993) 12 Cal.App.4th 894, 902.)” (California Fed. Savings & Loan Assn. v. City of Los Angeles (1995) 11 Cal.4th 342, 349.)



Mindful of the mandate that “[t]wo codes ‘“must be read together and so construed as to give effect, when possible, to all the provisions thereof, ”’ [citation]” (DeVita v. County of Napa (1995) 9 Cal.4th 763, 779), we conclude that section 291 does not bar the expiration of an instrument securing a family law judgment. We also conclude that the underlying family law judgment was not rendered unenforceable by the terms of MRTA. The trial court correctly found that while Ms. Stein could not enforce the note or deed of trust on the Maclay property, Mr. Schelb was still obligated to satisfy the remainder of the family law judgment, with interest. We recognize that this may make collection of the remainder due on the family court judgment more difficult, but Ms. Stein failed to pursue an action on the note or deed of trust on the Maclay property until long after those interests had expired under MRTA. It would be contrary to the purposes of MRTA to allow her to delay an effort to enforce those interests from 1988 to 2007 when she filed her cross‑complaint, a period of nearly 20 years.



III




 



Mr. Schelb questions whether it is fair for Ms. Stein to invoke section 291, which was enacted in 2006, long after the 1991 modification. He cites case law for the proposition that a new law may not apply to an earlier transaction setting the rights and obligations of the parties. He also invokes the principle that new enactments should be applied prospectively absent a clear legislative expression that statutes be applied retroactively. But, as he acknowledges, the Legislature expressly provided that provisions of the Family Code do apply retroactively. (See In re Marriage of Fellows (2006) 39 Cal.4th 179, 186 [discussing January 1, 1994 operative date of the Family Code and section 4 of the code, the latter provides that amendments to the Family Code apply retroactively unless otherwise provided by law].)



Subdivision (h) of section 4 of the Family Code allows the court to apply either the new Family Code or the old law “to the extent reasonably necessary” to mitigate “substantial interference” with the rights of the parties in connection with an event that occurred before the operative date of the Family Code.[4] Mr. Schelb argues that once the note matured in 1994, it was rendered void and unenforceable by MRTA 10 years later, in 2004. He also argues that Ms. Stein’s failure to renew the 1988 judgment rendered it a nullity 10 years later. From this he concludes that the family law judgment had been “a dead letter for 8 years” by the time section 291 was enacted in 2006. No authority is cited to support this argument. He argues the trial court erred in concluding that section 291 disposed of the issues between himself and Ms. Stein.



Mr. Schelb’s argument is based on an assumption that he would have fared better under the law in effect before passage of the new version of section 291 in 2006 because Ms. Stein would have had to renew the judgment within 10 years. The law prior to 2006 does not support this argument.



Former section 291, enacted in 2000, provided: “A judgment or order for possession or sale of property made or entered pursuant to this code is subject to the period of enforceability and the procedure for renewal provided by Chapter 3 (commencing with Section 683.010) of Division 1 of Title 9 of Part 2 of the Code of Civil Procedure.” (Assem. Bill No. 2126 (2005‑2006 Reg. Sess.) as introduced February 21, 2006, italics added.) Section 683.020 of the Code of Civil Procedure provides a 10‑year period of enforceability for judgments. But former section 291 was expressly limited to a judgment for possession or sale of property. The court in In re Marriage of Wilcox (2004) 124 Cal.App.4th 492, interpreted the former version of section 291 and concluded: “The plain language of Family Code section 291 leaves no doubt that the Legislature did not intend to subject Family Code money judgments to the 10‑year limit for renewal under section 683.130.” (Id. at p. 499.)




 



In Wilcox, the family court had entered an order directing the former husband to make payments to his former wife because of his default on payments required by the judgment of dissolution. The Court of Appeal held that this order was “unequivocally a money judgment” under Code of Civil Procedure section 680.270 which defines “‘money judgment’” as “‘that part of a judgment that requires the payment of money.’” (In re Marriage of Wilcox, supra, 124 Cal.App.4th at p. 499.) In a footnote, the court concluded that the former husband’s argument would fail even if the judgment were premised on his failure to satisfy property equalization payments: “Numerous money judgments result from property disputes of one form or another, but this certainly does not render them judgments for the possession or sale of property.” (Id. at p. 499, fn. 10.)



We are satisfied that the judgment here was not a “judgment or order for possession or sale of property” within the meaning of former section 291, and therefore, Ms. Stein was not required to enforce it within 10 years under that statute. The legislative history of Assembly Bill No. 2126 of the 2005‑2006 regular session, which repealed and reenacted section 291 supports this conclusion. An analysis of Assembly Bill No. 2126 prepared for the Senate Judiciary Committee examined the existing law regarding enforcement of family law judgments or orders. It noted that a judgment for possession or sale of property is subject to a 10‑year enforcement period under former section 291. (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 2126 (2005‑2006 Reg. Sess.) as amended April 20, 2006, p. 2.) It also noted that a judgment for child, family, or spousal support is enforceable until paid in full and is exempt from any requirement that judgments be renewed. (Ibid., citing former § 4502.) The analysis expressly addressed the existing law as to enforceability of family law money judgments not for support: “Existing law does not provide a time period for enforcement of a non‑support money judgment, nor are those judgments exempt from a defense of laches. [Code of Civ. Proc., 683.310.]” (Ibid.)” (Emphases added)



(2) In re Marriage of Wilcox (2004) 124 C.A.4th 492, 21 C.R.3d 315 dealt with a renewal of a money judgment (not for support) that was granted over 10 years after entry. The Court upheld it, saying:


”Ten years passed and Richard still had not satisfied the judgment. On August 21, 2003, Carol filed an application for renewal of her original judgment under section 683.140. On the renewal form, XXXXX XXXXXsted she was renewing the court's order entered on "June 1, 1993, as amended November 19, 1993." Carol's renewal was granted on August 21, 2003, for a total of $583,748.43. This amount included $295,879.07 for the June and November 1993 orders, plus an additional $287,869.36 for interest and filing fees. Carol's renewal was filed more than 10 years from the date of entry of the June 1993 order, but less then 10 years from the date of entry of the November 1993 order.



Shortly thereafter, Richard filed a motion to vacate renewal of judgment with the trial court. In his points and authorities Richard argued Carol's renewed money judgment should be vacated under sections 683.020[3] and 683.130[4] because it was filed more than 10 years after entry of the June 1993 order and therefore should not have been renewed by the clerk.



Carol responded by arguing that section 683.310[5] specifically excludes Family Code judgments from the 10‑year time limit for renewal under section 683.130 and therefore renewal was proper.



In his reply papers in the trial court, Richard argued for the first time that Carol's June 1993 order was not a money judgment, but rather a judgment for the "possession or sale of property" under the meaning of Family Code




 



Page 497



section 291[6] and thus subject to the 10‑year time limit for renewal under section 683.130. Richard further asserted that the November 1993 order did not amend the June 1993 order but rather merely "granted several new awards for interest, attorney fees, and support."



The trial court denied Richard's motion ruling that Family Code section 291 is specifically limited to judgments for the sale or possession of property, and therefore, because the June 1993 order is a Family Code money judgment, it is not subject to the 10‑year time limit for renewal under section 683.130. Because the trial court ruled the June 1993 order was not subject to the 10‑year time limit for renewal under section 683.130, it did not determine the nature of the November 1993 order....



II



RICHARD'S SUBSTANTIVE CONTENTIONS



On appeal Richard contends: (1) that the trial court erred in ruling the June 1993 order was a Family Code money judgment exempt from the 10‑year time limit for renewal under section 683.130, and (2) that because the November 1993 order did not amend the June 1993 order, Carol's August 2003 renewal was untimely with respect to the June 1993 order.



At the outset it should be mentioned that Richard had a duty to provide this court with an adequate record on appeal. (Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 72 [40 Cal.Rptr. 690].) However, in this task, Richard has woefully failed. Richard has failed to provide this court with, among other things, the November 1993 order, the addendum to judgment of dissolution of marriage, and the marital settlement agreement. Despite this Richard argues how their content affected the trial court's decision to deny his motion to vacate renewal of judgment. Although we chose to analyze the case with the materials provided to us, the inadequacy of the record alone provides a basis to dismiss Richard's appeal.



A. Character of the June 1993 Order



Richard argues the June 1993 order resulted from his failure to timely make community property equalization payments, and thus the judgment is for the possession of property under the meaning of Family Code section 291. Neither the law nor the facts support Richard's position. To begin with, nothing in the record includes a single instance where the trial court determined, or even stated, the June 1993 order was premised on Richard's failure to make community property equalization payments. Richard claims this was implied in one of the trial court's statements during the hearing.[9] Richard further suggests that if we are unconvinced by the court's single statement we should review the trial court records for ourselves and confirm that the judgment stemmed from his failure to make community property equalization payments. We decline Richard's invitation to independently



 



Page 499



acquire the records of the trial court. Richard had adequate time to compile a complete record for appeal and we will not take it upon ourselves to fulfill his responsibilities.[10]



Section 680.270 defines a "money judgment" as "that part of a judgment that requires the payment of money." The June 1993 order (which is all we have to base our decision on) ordered Richard to pay Carol $100,000 and $160,000, respectively. It is therefore unequivocally a money judgment.



B. Interpretation of Family Code Section 291



The issue thus becomes whether Family Code section 291 subjects Family Code money judgments to the 10‑year time limit for renewal under section 683.130. We conclude it does not.



Interpretation of a statute entails the resolution of a pure question of law which we review de novo. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432 [101 Cal.Rptr.2d 200].) "'"When interpreting a statute, we must ascertain legislative intent so as to effectuate the purpose of a particular law. Of course our first step in determining that intent is to scrutinize the actual words of the statute, giving them a plain and commonsense meaning. [Citation.] When the words are clear and unambiguous, there is no need for statutory construction or resort to other indicia of legislative intent, such as legislative history."'" (Noel v. River Hills Wilsons, Inc. (2003) 113 Cal.App.4th 1363, 1373 [7 Cal.Rptr.3d 216], quoting National Technical Systems v. Commercial Contractors, Inc. (2001) 89 Cal.App.4th 1000, 1007‑1008 [108 Cal.Rptr.2d 67].)



The plain language of Family Code section 291 leaves no doubt that the Legislature did not intend to subject Family Code money judgments to the 10‑year time limit for renewal under section 683.130.



A maxim of statutory construction states that the expression of certain items in a statute necessarily involves exclusion of other things not expressed. (Fischer v Los Angeles Unified School Dist. (1999) 70 Cal.App.4th 87, 97 [82 Cal.Rptr.2d 452];



Page 500



see also In re Bryce C. (1995) 12 Cal.4th 226, 231 [48 Cal.Rptr.2d 120].) Money judgments are distinct from judgments for the possession or sale of property, and the Legislature confirms this in sections 683.020 and 683.130 by listing "money judgments" and "judgments for the possession or sale of property" separately instead of merely using the term "judgments." The clear import of this is that when the Legislature chooses to use the term "judgments for the possession or sale of property" in a statute, "money judgments" are necessarily excluded.




 



Richard contends that the Legislature was only concerned with exempting support payments from the 10‑year time limit for renewal under section 683.130, and this was its sole purpose in passing section 683.310. He further contends that Family Code section 291 was enacted specifically to subject all nonsupport Family Code judgments to sections 683.020 and 683.130. Given the organization and history of Family Code section 291, Richard's contentions are without merit.



Section 683.310 exempts all judgments made or entered under the Family Code from the 10‑year time limit for renewal outlined in the Civil Code unless the Family Code specifically provides otherwise. Family Code section 291 then specifically provides that those judgments entered for the possession or sale of property are subject to the Civil Code's 10‑year time limit for renewal. If Richard's argument were adopted, Family Code section 291 would essentially repeal section 683.310 because all judgments, except those for support, would now be subject to the 10‑year time limit for renewal. However, the law shuns repeal by implication (Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553, 569 [71 Cal.Rptr.2d 731]), and if this was the result the Legislature had intended it would have explicitly provided in section 683.130 that all Family Code judgments, except those for support, are subject to the Civil Code's 10‑year time limit for renewal.



Additionally, Family Code section 291 and section 683.310 became effective on the same date, September 28, 2000. It must be presumed that the Legislature had existing laws in mind when it enacted a new statute (Voss v. Superior Court (1996) 46 Cal.App.4th 900, 925 [54 Cal.Rptr.2d 225]), and the Legislature would not have enacted section 683.310 to exempt all Family Code judgments if it was, for all practical purposes, reversing the operation of that exemption in a different statute enacted on the same day.



Page 501



The Legislature's goal in enacting Family Code section 291 was solely to subject judgments for the possession or sale of property to the Civil Code's 10‑year time limit for renewal, not exempt only support payments from this time limit.



In fact, the Legislature has already enacted a statute specifically exempting support payments. Family Code section 4502 provides:



"(a) Notwithstanding any other provision of law, a judgment for child, family, or spousal support, including a judgment for reimbursement that includes, but is not limited to, reimbursement arising under Section 17402 or other arrearages, including all lawful interest and penalties computed thereon, is enforceable until paid in full and is exempt from any requirement that judgments be renewed."




 



Family Code section 4502 was made effective January 1, 2003. If the effect of Family Code section 291 was to subject all nonsupport Family Code judgments to a 10‑year time limit for renewal, then Family Code section 4502 would serve no practical purpose.



Richard's argument merely attempts to twist the language of a clearly worded statute and is unable to withstand even minimal scrutiny.



C. Money is Not a Form of Property Under the Family Code



Finally, Richard argues that money is a form of property under the Family Code, and thus it is well within the purview of Family Code section 291. Again, this argument is specious and not based on any sound reasoning. Richard's argument may be understandable if we were discussing which party would get possession of a coin collection sitting in a safe deposit box, because in this context one could perhaps assert that the money should be treated as property.[11] However, this is not the situation here. The June 1993 order simply ordered Richard to pay Carol $260,000, it did not indicate this money should come from any particular place, or even comment as to whether Richard had this amount of money in his possession (which he evidently did not). The June 1993 order is the epitome of a money judgment and Richard's blanket argument that all money is property, regardless of the context, is not well taken.” (Emphases added)



C. As to Family Law orders, issue fully decided by our CA Supreme Court: In re Marriage of Fellows (2006) 39 C.4th 179, 46 C.R.3d 49 (Supreme Court disapproves Garcia and holds that Family Code Section 4502(c)(1) applies retroactively (so Section 291 applies similarly) so the laches defense is simply not available except as to monies owed the County. “We consider whether Family Code section 4502, subdivision (c),[1] applies retroactively and bars a parent from relying on laches to defend an action to enforce a child support order. We hold that it does and affirm the Court of Appeal....


If, in light of the lapse of time and other relevant circumstances, a court concludes that a party's failure to assert a right has caused prejudice to an adverse party, the court may apply the equitable defense of laches to bar further assertion of the right. (Nealis v. Carlson (1950) 98 Cal.App.2d 65, 69.) The parties agree that section 4502(c), by its terms, bars the laches defense in a private action to enforce a child support order. They disagree over its application here. We review the retroactive application of the statute de novo. (In re Marriage of McClellan (2005) 130 Cal.App.4th 247, 254 [30 Cal.Rptr.3d 5].)[2]


1. Section 4502(c) Changed Existing Law


As a general rule, statutes do not operate retroactively[3] "unless the Legislature plainly intended them to do so." (Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243 [62 Cal.Rptr.2d 243](Western Security).) Nonetheless, "a statute that merely clarifies, rather than changes, existing law does not operate retrospectively even if applied to transactions predating its enactment." (Ibid.) Such a statute "may be applied to transactions predating its enactment without being considered retroactive" because it "is merely a statement of what the law has always been." (Riley v. Hilton Hotels Corp. (2002) 100 Cal.App.4th 599, 603 [123 Cal.Rptr.2d 157].)


Page 184



 



In determining whether a statute clarified or changed the law, we give "due consideration" to the Legislature's intent in enacting that statute. (Western Security, supra, 15 Cal.4th at p. 244.) The Legislature's declaration of an existing statute's meaning, while not dispositive, is a factor entitled to consideration. (McClung v. Employment Development Dept. (2004) 34 Cal.4th 467, 473 [20 Cal.Rptr.3d 428] (McClung).) We look to "the surrounding circumstances" as well as the Legislature's intent when determining whether a statute changed or merely clarified the law. (Western Security, at p. 243.)


Here, the Legislature intended to change the law. Explaining the need for the statute, both the Senate Rules Committee and the Senate Judiciary Committee observed that "the equitable defense of laches remains applicable in an action to enforce a support order." (Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Sen. Bill No. 1658 (2001‑2002 Reg. Sess.) as amended July 2, 2002, p. 2; Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1658 (2001‑2002 Reg. Sess.) May 7, 2002, p. 2.) [4] According to the Senate Rules Committee, the enactment of section 4502(c) would "change that" by "substantially restricting the laches defense in support enforcement cases." (Assem. Floor Analysis, 3d reading analysis of Sen. Bill No. 1658 (2001‑2002 Reg. Sess.) as amended July 2, 2002, p. 3, italics added.) Thus, section 4502(c) would "[s]et[] forth new statutory restrictions on the use of the common law defense of laches in support enforcement actions." (Assem. Judiciary Com., Analysis of Sen. Bill No. 1658 (2001‑2002 Reg. Sess.) June 25, 2002, p. 2, italics added.) In doing so, it would close "a loophole that allow[ed] child support obligors to evade responsibility for their debts." (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1658 (2001‑2002 Reg. Sess.) May 7, 2002, p. 3.) "By amending the statute to close the loophole, the Legislature sought to change the law." (City of West Hollywood v. 1112 Investment Co. (2003) 105 Cal.App.4th 1134, 1145.) [130 Cal.Rptr.2d 168]


A review of the law before the enactment of section 4502(c) confirms that the statute did effect a change. "Prior to 1992, judgments for child and spousal support expired within a stated period of years." (In re Marriage of Fogarty & Rasbeary (2000) 78 Cal.App.4th 1353, 1359 [93 Cal.Rptr.2d 653] (Fogarty).) California courts had recognized a laches defense in spousal support cases but held that the defense did not apply to claims for arrearages brought within the statutory enforcement period. (See, e.g., DiMarco v. DiMarco (1963) 60 Cal.2d 387, 394 [33 Cal.Rptr. 610]; Leiden v. Hudson (1979) 95 Cal.App.3d 72, 74‑75 [156 Cal.Rptr. 849].) In 1992 and 1993, however, the Legislature made all support orders enforceable "until paid in


Page 185


full." (Civ. Code, former § 4384.5, now Fam. Code, § 4502, subd. (a).)[5] In doing so, the Legislature cast some doubt on the viability of the laches defense in support actions.


However, the court In re Marriage of Plescia (1997) 59 Cal.App.4th 252, 262 [69 Cal.Rptr.2d 120] (Plescia), held that the legislative changes in 1992 and 1993 did not eliminate the laches defense in actions for spousal support arrearages. Three years later, the Fogarty court followed Plescia and recognized laches in actions for child support arrearages. (Fogarty, supra, 78 Cal.App.4th at p. 1364.) These precedents were consistently followed until the enactment of section 4502(c). [6] The Legislature may certainly amend a statute to overrule a judicial decision. But, in doing so it changes the law. (See McClung, supra, 34 Cal.4th at pp. 473‑474.)



 



In re Marriage of Cordero (2002) 95 Cal.App.4th 653 [115 Cal.Rptr.2d 787], does not alter our conclusion. The Cordero court disagreed with the reasoning of Plescia, supra, 59 Cal.App.4th 252, and opined that support orders less than 10 years old would not be subject to a laches defense. (Cordero, at pp. 664‑665.) The court acknowledged, however, that its observation was dictum. (Id. at p. 666, fn. 17.) Thus, there is nothing to suggest that the Legislature enacted section 4502(c) in response to any controversy created by Cordero on this point. Indeed, the legislative history behind section 4502(c) is replete with references to Plescia, Fogarty, Hamer, Dancy, and Copeman, but makes no mention of Cordero.[7] Accordingly, we conclude that the Legislature enacted section 4502(c) to change existing law, not to clarify a controversy over its interpretation.


Page 186


2. The Legislature Intended That Section 4502(c) Apply Retroactively


Before section 4502(c) became effective on January 1, 2003, a viable laches defense would have barred Moyse's claim. The statute applies to this case only if the Legislature intended to give it retroactive effect. We conclude that it did.


While nothing in the language or legislative history of section 4502(c) speaks directly to retroactive application, section 4 of the Family Code provides guidance. The Family Code was enacted in 1992, and made operative on January 1, 1994, to create a unified statutory scheme. (Stats. 1992, ch. 162, p. 463 et seq.) It drew together a number of statutes scattered throughout various parts of the California codes, and enacted some new provisions. Section 4 provides that, in the Family Code, the term "new law" describes either the enactment of the Family Code itself, or future modifications of the code. (§ 4, subd. (a)(1)(A) & (B).)[8] The term "old law" refers to the law in effect before the Family Code was adopted. (§ 4, subd. (a)(2).)


Section 4, subdivision (c) provides: "Subject to the limitations provided in this section, the new law applies on the operative date to all matters governed by the new law, regardless of whether an event occurred or circumstance existed before, on, or after the operative date, including, but not limited to, commencement of a proceeding, making of an order, or taking of an action." Thus, by its terms, section 4, subdivision (c), establishes that amendments to the Family Code apply retroactively unless otherwise provided by law.


The Law Revision Commission comment to section 4 confirms this interpretation. The Commission explains that section 4 "applies both to the act that enacted the Family Code and to any later act that changes the code, whether the change is effectuated by amendment, addition, or repeal of a provision of the code." (Cal. Law Revision Com. com., 29C West's Ann. Fam. Code (2004 ed.) foll. § 4, p. 7, italics added.) The comment then notes: "The general rule prescribed in subdivision (c) is that a new law applies immediately on its operative date to all matters, including pending proceedings," (ibid.) and that section 4 governs the "substantive provisions" of the Family Code. (Cal. Law Revision Com. com., at p. 8.) Thus, as a general rule, future changes to the Family Code apply retroactively.


Page 187



 



We reached a similar conclusion in Rice, supra, 28 Cal.4th at page 100, where we held that the 1995 amendments to Probate Code section 21350 applied retroactively to "instruments executed before the amendments' effective date." Specifically, we found that section 3 of the Probate Code "mandates application of the law as amended in 1995, even though the trust and will were executed prior to that amendment's effectiveness." (Rice, at p. 99.) Section 4 of the Family Code is "comparable" to section 3 of the Probate Code (Cal. Law Revision Com. com., 29C West's Ann. Family Code, supra, foll. § 4, p. 7) and contains virtually identical language.[9] Thus, Rice is highly persuasive and consistent with our conclusion that section 4502(c) applies retroactively absent some exception to the rule of retroactivity found in section 4 of the Family Code.[10] In re Marriage of Wood (1995) 37 Cal.App.4th 1059 [44 Cal.Rptr.2d 236] is disapproved to the extent it conflicts with our opinion today, because the Wood court did not adequately consider the language and history of section 4.


3. Section 4, Subdivisions (f) and (g) Do Not Bar Retroactive Application Here


Notwithstanding the general rule of retroactivity established by section 4, subdivision (c), Fellows contends the exceptions found subsequently in subdivisions (f) and (g), bar such application here. The argument fails.


a. Section 4, Subdivision (f)


Subdivision (f) of section 4 provides that: "No person is liable for an action taken before the operative date that was proper at the time the action was taken, even though the action would be improper if taken on or after the operative date, and the person has no duty, as a result of the enactment of the new law, to take any step to alter the course of action or its consequences." Fellows creatively argues retroactive application would impose new duties on him: (1) to indefinitely preserve written proof of his compliance with the New York support order, and (2) to strictly comply with and refuse to orally modify the order. His contention lacks merit.


Page 188


Section 4502(c) placed no new duties on Fellows. Both before and after its enactment, Fellows had a duty to pay his child support, and could establish compliance through testimony alone. The elimination of a laches defense did not create some novel proof requirement. Even before the enactment, prudence would have counseled preservation of written payment records. Indeed, success on a laches claim is always uncertain because it is an equitable remedy that depends on "the facts and circumstances of the particular case." (Austin v. Hallmark Oil Co. (1943) 21 Cal.2d 718, 734.) Assertion of a laches defense seeks an equitable act of grace to relieve the burden of an existing obligation. Elimination of the defense does not create a new duty.


b. Section 4, Subdivision (g)


Subdivision (g) of section 4 is also inapplicable here. It provides that "f the new law does not apply to a matter that occurred before the operative date, the old law continues to govern the matter notwithstanding its repeal or amendment by the new law." (Ibid.) According to Fellows, subdivision (g) limits the retroactivity rule to procedural changes. He contends section 4502(c) is a substantive change and must, therefore, apply prospectively. Nothing in the text or history of section 4 suggests an intent to distinguish between procedural and substantive changes in applying the rule of retroactivity. There is no reasoned basis for adopting such a distinction especially when "California has rejected this type of classification" in determining whether a statute has retroactive effect. (Western Security, supra, 15 Cal.4th at p. 244, fn. 4.)


Instead, read together, subdivisions (c) and (g) of section 4 establish that the "old law" will govern only if the "new law" falls within the other statutory exceptions to the rule of retroactivity or does not apply to a "matter" previously governed by the "old law." Section 4502(c) does not fall within either statutory exception and applies in this action to "enforce a judgment for child . . . support."



 


Finally, in In re Marriage of Garcia (1998) 67 Cal.App.4th 693, 698‑699 [79 Cal.Rptr.2d 242], the court declined to apply the 1993 amendments to the Family Code retroactively and held that the pre‑1993 scheme governing support orders still controlled. In re Marriage of Garcia, supra, 67 Cal.App.4th 693, did not, however, consider section 4, and is disapproved to the extent it conflicts with this opinion.”



D. The removal of the defense of laches is retroactive. See In re Marriage of Sabine and Toshio M. (2007) 153 C.A.4th 1203, 1216-1217, where the court stated as follows:



“The doctrines of waiver and estoppel have their place in support proceedings. (See In re Marriage of Damico, supra, 7 Cal.4th at p. 681.) But, in general, arrearages — support payments that are past due — cannot be forgiven. Courts previously recognized an exception to the general rule, applying the



Page 1217



doctrine of laches to bar the recovery of arrearages. (See In re Marriage of Fellows (2006) 39 Cal.4th 179, 184–185 [46 Cal.Rptr.3d 49], [discussing cases].) In 2002, however, the Legislature enacted section 4502, subdivision (c) (now § 291, subd. (d)), limiting the defense of laches to “any portion of the judgment owed to the state.” (Stats. 2002, ch. 304, § 1, italics added; see Stats. 2006, ch. 86, § 4.) This statute is retroactive. (See In re Marriage of Fellows, at pp. 186–188.)” (“Emphasis added)




Please give me a call once you have had a chance to look the enclosed information over.




With best regards,




Robert I. Duskis

Expert:  Legalease replied 1 year ago.

Hello again Dan --

-

That is unique to CA apparently and I find it interesting that he is so diligent in this matter against you when he is not even an attorney any longer. Basically it is the same effect as if he had renewed the judgment against you and having reviewed the statutes and cases he is referring you to I really do not see anything to counter what he is claiming. (Laches, by the way, even if plead is not usually given much weight by any court that reviews such a defense and I do not think I have ever seen a defendant get a case thrown out against him by using laches as an affirmative defense -- why it is still used in most instances any longer I do not know).

-

He still has to tell the court that you did not pay it and you will claim that you did. What about your ex spouse in that matter -- would she be any help at all to remember if this was paid or not (if so, she could sign an affidavit that she remembers it as having been paid at that time or shortly thereafter). The question also comes up as to WHY it has taken him so long to pursue this against you if the matter was not paid back when the order was first issued. Finally, I would question the overall amount again -- why is it so high? The fact that he deliberately waited to collect on this for so long made it higher than it should have been if you truly did not pay it.

-

I genuinely believe that you paid this when you were supposed to pay it and he is trying to double dip. I have heard and seen other collection agencies doing the exact same thing for debts and judgments that are years old -- the party simply waits 10 or 12 years hoping that the defendant will no longer have proof of the payment made and they are usually right -- and so the defendant ends up paying again. It is called "zombie" debt collection, and until the state legislatures FORCE people who have judgments to prove that they tried to collect within a reasonable time after the judgment was issued and they were not able to do so, I am afraid that these practices will continue to happen in every state.

-

I truly wish I could give you better news than that but we knew if there was a judgment he could collect on it and laches was a long shot (I said that earlier in our conversation).

-

MARY

Legalease, Lawyer
Category: Legal
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Customer: replied 1 year ago.


Thanks Mary. What is going to save me is the fact that my sister produced paid checks returned from her bank (17+ years ago), showing she paid ex-attorney Duskis in 4 installments, and in my name. I gave my sister the cash in exchange for the use of her checks because I didn't want my ex-wife's attorney (the one gunning for me) to know that checking account number at the time. Also, I produced a quicken extracted excel file that contained my checking register completed with all entries for the entire 1994 and another for 1995, which shows I made withdraws on the same days my sister wrote the pmt checks to the attorney. All hope was lost, then something triggered in the back of my mind and I called her and she remembered!! I dug into old zip disks (in voge in the '90s) that my daughter FedEx'd to me from California, and I was pleasently surprised they were still readable, and the old zip drive worked! Why did I ever keep these things?!?!? Why did my sister keep her checking account registers all these years?!? LOL I think the moral of this sordid story is that we should keep all such records many years after the IRS 7 year requirement. This is the world we live in :-(


 


What motivates ex-attorney Duskis to persecute me is that he is half a $$ Million in arrears with the IRS, and he owes his ex-wife $300k as part of their messy divorce from years ago. At age 67, he is at a point of desparation, and his best earning years behind him. Diebetes, heart condition, severe arthritis don't help his cause. He lost the right to practice law in California, so he cannot make any $$ to chip away at the massive debt he has.


 


Anyways, thanks again for your help!!


 


Best,


Dan

Expert:  Legalease replied 1 year ago.

Dan --

-

That is SUPER ! I am glad you found proof of payments to him. Not only should you let the court know about this but you should also let the bar association know what he is doing. THere are probably two dozen more people that he is trying to pull this on out there who thought the bill was paid years ago and now he is crawling out of the woodwork to try to collect again.

-

-

MARY

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