Code of Civil Procedure (CCP) Section 874.140 – Enforcement of Judgment
Code of Civil Procedure section 874.140 governs the procedure for collecting on an unpaid lien for the costs of partition. Occasionally, the funds from the sale are not enough to satisfy one party’s lien for repayment for partition costs. When this occurs, under the statute, the party may collect on this lien according to the methods described in the Enforcement of Judgments Law.
Code of Civil Procedure section 874.140 states:
A judgment for unpaid costs of partition may be enforced by the person entitled to the costs in the manner provided for enforcement of money judgments generally against the share of the party specified in the judgment or against other property of the party.What is an Example?
“Shawn” and “Julie” are siblings who inherit property from their parents. Even though they own equal shares, Shawn treats the home as his own, and refuses to allow Julie onto the property. Fed up with being denied the benefits of the home, Julie sues for partition.
As part of this process, Julie procures a title report before the Complaint is filed. Later, when the Court allows the partition by sale to proceed, a partition referee is hired to prepare the home for listing on the open market. The referee also contracts with a contractor to fix up the roof so that the home will get a better sales price.
Eventually, the home is sold. Pursuant to section 874.010, half of Julie’s attorneys fees must be paid out of Shawn’s shares of the proceeds. Julie is also entitled to be reimbursed for half the cost of the title report. Additionally, the fees for the referee and the contractor come out of both parties’ shares of the sales proceeds.
All of the above are considered “costs” of partition under section 874.010. And costs are to be evenly split by the parties to a partition action under section 874.040, unless the court comes to some other equitable arrangement. As such, Julie must be reimbursed from the sales proceeds.
The way that Julie is reimbursed is via the court imposition of a lien for the repayment amount against Shawn’s share of the sales proceeds. Shawn, too, will be entitled to a lien against Julie if he has costs to be reimbursed under section 874.040.
After the court imposes a lien on Shawn’s interest, and the sales proceeds are distributed, Julie sees that she is still owed a substantial sum of costs from Shawn. Under section 874.140, she can collect on these liens via the law of enforcement of judgments.
Law Revision Commission Comments (CCP § 874.140)
Section 874.140 continues the substance of a portion of former Section 796. See also Section 798. The remedies provided in this section and in Section 874.130 are cumulative.Assembly Committee Comment
As is the case for many of the partition statutes, initially, section 874.140 did not include an “official” Assembly Committee Comment from the California Legislature. This was not unusual, as the California Legislature endorsed an overall adoption of the Law Revision Commission suggestions when it passed the new partition statutes in 1976.
In fact, the introduction to Assembly Bill 1671 (the bill that contained the new partition laws) states that the Revision Commission’s recommendations “reflect the intent of the Assembly Committee… in approving the various provisions of Assembly Bill 1671.” This demonstrates that the intent of the Legislature was essentially in line with that of the Revision Commission.
However, section 874.140 was amended in 1982 so that it would conform with the Code of Civil Procedure provisions on enforcements of judgments generally. As such, the operative Legislative Committee Comment reads:
“Section 874.140 is amended to conform to Title 9 (commencing with Section 680.010) of Part 2 (Enforcement of Judgments Law).
This comment is helpful, as it effectively states that to enforce a judgment lien, the party must comply with the Enforcement of Judgments Law.
That set of statutes is a comprehensive scheme that provides procedural guidelines for civil litigants to enforce money judgments over time. While a full analysis of the Enforcement of Judgments Law is beyond the scope of this post, here are the basics.
Suppose some of Julie’s costs of partition are unpaid following disbursement of the sales proceeds. In order to collect against Shawn, Julie has ten (10) years to pursue her available legal remedies. (CCP § 683.020.)
Those remedies typically take two main forms. First, Julie can seek a levy on Shawn’s real property via a writ of execution. (CCP § 697.710.) This creates a judgment lien on the property. When the property is sold, Julie receives some of the sales proceeds to satisfy her lien.
The other main way of collecting is through seeking and obtaining an “earnings withholding order.” In other words, this remedy is wage garnishment. It allows for Julie to collect a portion of Shawn’s disposable earnings directly from his employer until Julie’s judgment is fully paid off.Contact Us
Here at Underwood Law Firm, our knowledgeable attorneys are here to help navigate the complex web of case law and statutes surrounding partitions. If you are thinking of filing a partition, are already in the midst of a partition suit, or just have any questions, please do not hesitate to reach out to our office.