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In Re the Marriage of Charlene and James Guasch. v. James Guasch

December 8, 2011


Trial Court: Santa Clara County Superior Court Trial Judge: Hon. Michael Clark (Santa Clara County Super. Ct. No. 1-06-FL132930)

The opinion of the court was delivered by: Elia, J.


Appellant Pamela Carmody served a writ of execution on community property held by respondents Charlene and James Guasch, who were undergoing marital dissolution proceedings. The family court granted Charlene's request to quash the writ of execution and enjoin further enforcement of a default judgment appellant had obtained against James after his separation from Charlene. Appellant contends that the court should have applied Code of Civil Procedure section 529 (hereafter, section 529) by requiring Charlene to post a bond to secure payment of James's debt. We disagree and affirm the order.


Charlene filed a petition for dissolution of her marriage to James on April 18, 2006. By stipulation appellant was joined in the proceeding. Both before and during the divorce proceedings James expressed threats and a desire to kill Charlene, and in June 2007 he solicited Charlene's murder, for which he was subsequently convicted.*fn1 Appellant, who was James's girlfriend, was convicted by plea in November 2007 as an accessory to the solicitation, among other offenses.

On April 28, 2010 appellant obtained a default judgment against James for $224,177.61, resulting from her loan of funds for James's bail and other obligations. On August 5, 2010 the family court authorized Charlene to withdraw funds from investment accounts owned by both Guasches. Implementing this order was problematic, however, in part because appellant had served a writ of execution on one of the affected funds based on her judgment against James. Charlene advised the court that James had allowed appellant's judgment to be entered against him so that appellant could execute and enforce the judgment against community property rather than property held by James alone. Charlene asked the court to direct the American Fund to release the funds in accordance with the August 5 order, and to quash the writ of execution and abstract of judgment obtained by appellant against James. She also asked the court to restrain appellant from levying on any other property held by her and James, including community real property.

Appellant opposed Charlene's request, contending that it was appropriate to seek satisfaction of the judgment from community property. Appellant also invoked section 529, insisting that if the court were to enjoin execution of the judgment, Charlene should be required to post a bond equal to one and one-half times the amount of the judgment to prevent dissipation of the Guasches' assets. Charlene, however, maintained that a restraining order could be issued against appellant without a surety bond. Distinguishing In re Marriage of Van Hook (1983) 147 Cal.App.3d 970, on which appellant was relying in her request for a bond, Charlene noted that appellant, unlike the creditor in Van Hook, was a party to the instant action. Calling attention to appellant's conviction of "conspiring with" James to murder her, Charlene urged the court to consider James and appellant "as one." In Charlene's view, James and appellant, having been unsuccessful in accomplishing her murder, were "now attempting to ruin [Charlene] financially. [James] allowed Claimant [appellant] to obtain a default judgment against him so that Claimant could attempt to execute and enforce the judgment against community assets of the party's [sic]." Charlene emphasized that appellant had sought execution only as to community funds, while leaving alone accounts held solely in James's name, even though the judgment was against only James.

Appellant, however, insisted that Charlene's only remedy was either "to satisfy the judgment voluntarily and seek reimbursement from the judgment debtor spouse [i.e., James] upon division of the property or to post a sufficient undertaking to protect the creditor's [i.e., appellant's] interest pending division of the property." The court, she acknowledged, had jurisdiction to issue Charlene's injunction, but an undertaking to such an order was a "mandatory" prerequisite under section 529. Otherwise, the injunction would be "void."

The family court determined that appellant was attempting to use her civil judgment and ensuing writs and abstracts of judgment as an end run around the court's exclusive jurisdiction over community property. In addition, the fact that appellant had not attempted to reach James's separate property, even while admitting that her purpose was to collect on his separate debt, indicated to the court that appellant was "using the civil judgment as a means of harassing [Charlene], especially since she failed to disclose the existence of the judgment or writ of execution at the hearing on August 5th. That is entirely improper and inequitable, and cannot be tolerated." The court further found both section 529 and the Van Hook case inapplicable. Accordingly, the court granted all of the relief requested by Charlene.


Although appellant takes issue with the subordinate points in the family court's reasoning, the central issue she raises is whether a bond was required under section 529 before the court was permitted to issue an injunction against her enforcement of her judgment against James. Because the appellate court reviews the correctness of the ruling, not the lower court's reasons, we focus on appellant's primary contention, that section 529 compelled the posting of an undertaking in this case.*fn2 She again invokes In re Marriage of Van Hook, supra, 147 Cal.App.3d 970, where the Third District held that courts are authorized to restrain judgment creditors from executing judgments against community property during the pendency of marital dissolution proceedings, but that the lower court had erred in entering a preliminary injunction against the creditor without requiring "satisfactory sureties" in accordance with section 529. (Id. at p. 989.) The Van Hook court applied former Civil Code section 4359, which provided for ex parte restraining orders when the applicant followed the procedures outlined in Code of Civil Procedure section 527. The court extended this reference to Code of Civil Procedure section 527 to the sections following that section, and thus held that the family court should have required an undertaking under section 529 as well.

It is unnecessary to weigh in on the soundness of this holding, because we agree with the court below that Van Hook is inapposite in light of subsequent legislative revisions of the applicable statutes. Even if former Civil Code section 4359 had been intended to encompass section 529 as well as section 527 of the Code of Civil Procedure, the enactment of the Family Code did not carry along that reference. In Family Code section 2045, the successor statute to former Civil Code section 4359, the Legislature dispensed with the requirement that a party seeking the ex parte order follow the application procedures outlined in former Code of Civil Procedure section 527; and like its predecessor, it certainly did not mention section 529.*fn3

Appellant argues that the court "erroneously relied on Family Code [section] 2045." She notes that this statute pertains to ex parte orders, which were not sought in this case, and that the Van Hook court's reference to former Civil Code section 4359 (the predecessor to Family Code section 2045), "which in turn referenced Code of Civil Procedure [section] 529[,] is not applicable to the case at bar." Appellant's argument only diminishes the value of her own reliance on Van Hook. In any event, the court in this case did not rely on Family Code section 2045; it merely pointed out that when former Civil Code section 4359 was redrafted as Family Code section 2045, the new statute omitted any mention of section 527 application procedures. The only relevance of the court's observation is its perception that the absence of any reference to section 529 undermines appellant's reliance on that statute to impose a bond requirement in marital dissolution proceedings. If, as appellant appears to suggest, we disregard Family Code section 2045, the issue nonetheless remains as to whether the court was obligated to require an undertaking before issuing the injunction against appellant.

The statute on which the court primarily relied is not Family Code section 2045, but Family Code section 2010, which confers broad authority on the court to make appropriate orders concerning "the settlement of the property rights of the parties." Appellant maintains that the authority conferred by section 2010 is subject to section 529, such that an undertaking is required before any injunction may issue against levying on community property to execute a judgment against one of the parties to a dissolution proceeding. She urges that section 529 need not be specifically mentioned in a statute to be applicable to injunction requests. While that point is accurate generally, family law issues are resolved through specialized procedures that are removed from ordinary civil actions. Family Code section 211 states, "Notwithstanding any other provision of law, the Judicial Council may provide by rule for the practice and procedure in proceedings under this code." (Italics added.) Implementing this declaration of intent to segregate family law procedures is California Rules of Court, rule 5.21,*fn4 which states, "Except as otherwise provided in these rules, all provisions of law applicable to civil actions generally apply to a proceeding under the Family Code if they would otherwise apply to such proceeding without reference to this rule. To the extent that these rules conflict with provisions in other statutes or rules, these rules prevail." As the Supreme Court explained with reference to the predecessors to Family Code section 211 and rule 5.21 (i.e., former Civil Code section 4001 and former rule 1206, respectively), "[t]he practical effect of [former Civil Code] section 4001 . . . is to remove any restraints of statutory consistency on the Judicial Council's rules of practice and procedure under the Family Law Act. . . . The Family Law Rules . . . supersede contrary statutes because the rules were adopted pursuant to and are consistent with specific constitutional and statutory authorizations having this effect. ...

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