Altizer v. Highsmith, A157921

• Court: California Court of Appeals
• Writing for the Court: Richman, J.
• Citation: 52 Cal.App.5th 331,265 Cal.Rptr.3d 832
• Parties: Joseph C. ALTIZER et al., Plaintiffs; WVJP 2017-1, LP, Plaintiff and Appellant, v. Robert H. HIGHSMITH et al., Defendants and Respondents.
• Docket Number: A157921
• Decision Date: 16 July 2020

52 Cal.App.5th 331
265 Cal.Rptr.3d 832

Joseph C. ALTIZER et al., Plaintiffs;

WVJP 2017-1, LP, Plaintiff and Appellant,
v.
Robert H. HIGHSMITH et al., Defendants and Respondents.

A157921

Court of Appeal, First District, Division 2, California.

Filed July 16, 2020

Attorney for Defendants and Respondents Robert Highsmith and Richard Highsmith : Carr McClellan P.C., Robert A. Bleicher, Christian Foote

Attorney for Plaintiff and Appellant WVJP 2017-1, LP: Moskovitz Appellate Team, Myron Moskovitz ; Eikenberry Law Firm, Kevin S. Eikenberry

Richman, J.

52 Cal.App.5th 334

In 1995, 17 plaintiffs sued defendants Robert and Richard Highsmith on several promissory notes, and the parties entered into a stipulation whereby a single judgment was entered in favor of the plaintiffs in various amounts. In 2005, an attorney representing the plaintiffs renewed the judgment using the standard Judicial Council form. The attorney subsequently passed away, and when the judgment was again due to be renewed in 2015, one of the plaintiffs did so, again using the standard Judicial Council form. Defendants eventually moved to vacate the 2015 renewal, arguing that it was void because to the extent one plaintiff purported to file it on behalf of the others, doing so constituted the unauthorized practice of law. The trial court agreed and granted the motion. We reverse.

BACKGROUND

On May 30, 1995, 17 plaintiffs filed a complaint against defendants in San Mateo County Superior Court. According to that complaint, eight pairs of plaintiffs and one individual held promissory notes pursuant to which defendants had promised to pay, and failed to pay, certain sums of money. The complaint asserted nine separate causes of action corresponding to the nine promissory notes, which were attached as exhibits to the complaint.

On November 29, 1995, pursuant to a stipulation among the parties and their counsel, the trial court entered a single judgment in favor of the plaintiffs for various amounts, in each case slightly less than the face amount of the nine promissory notes. The amounts owed the plaintiffs totaled $195,678.88.

In California, a judgment can be enforced for only 10 years from the date of entry. ( Code Civ. Proc., § 683.020.)¹ So, on October 27, 2005, attorney David Wexler filed the two-page Judicial Council form EJ-190, "Application for and Renewal of Judgment." Wexler checked a box on the form indicating that he was the attorney for the judgment creditor. In the space for "Applicant," the form referred to an "Attachment A" listing the 17 plaintiffs and their addresses. In the space for "Judgment debtor," the form referred to an "Attachment B" listing defendants and

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their address. In the space for "Original judgment," the form provided the

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case number and date of the original judgment, and referred to an "Attachment C" listing the various counties in which the judgment had been recorded, along with the instrument number. After a box checked for "Renewal of money judgment," the form provided the original judgment amount of $195,678.88, interest after judgment of $200,570.67, and a fee for filing the renewal of $36.30, for a total renewed judgment amount of $396,285.85. And on the second page, Wexler signed and dated the form, providing his title as "Attorney for Judgment Creditors."

In 2008, Wexler died.

On October 9, 2015, one of the plaintiffs, John Bisordi, filed a second "Application for and Renewal of Judgment," again using the two-page Judicial Council form. He provided his name and address in the space under "Attorney or Party Without Attorney," and checked the box for "Judgment creditor." In the spaces for "Applicant," "Judgment debtor," and "Original judgment," Bisordi referred to and attached the same attachments A, B, and C from the 2005 renewal. At the bottom of the first page, Bisordi checked the box for "Renewal of money judgment," and provided the previous judgment amount of $396,285.85, added interest after judgment of $394,114.42, and the renewal filing fee of $30, for a new total renewed judgment amount of $790,430.27. On the second page, Bisordi signed and dated the form.

On October 16, Bisordi filed an "Amended Application for and Renewal of Judgment", substantively identical to that filed on October 9 except that it included on "Attachment B" a newer address for defendants.²

Bisordi did not serve the renewal on defendants, nor did he file any proof of service.

On October 20, 2017, Bisordi filed a declaration indicating that a further $159,380.80 in interest had accrued on the judgment from October 16, 2015 through that date, for a new total of $949,811.07.

Meanwhile, by way of several assignments in 2016, 2017, and 2018, 15 of the 17 original judgment creditors—all save Joseph and Pilar Altizer—assigned their interests in the judgment to appellant WVJP 2017-1, LP (WVJP).

On June 25, 2018, Kevin Eikenberry of WVJP filed a declaration stating that the judgment had accrued $213,085.20 in interest since October 16,

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2015, for a new total of $1,003,515.40. WVJP also moved for the appointment of a receiver over several properties in Lake County owned by one of the defendants. A writ of execution issued that same day.

In December 2018, defendants filed a motion to quash the writ and stay enforcement of the renewed judgment under section 683.160. And the trial court granted the motion on the ground that defendants had not been served with notice of the 2015 renewal.

In March 2019, defendants were served by mail with notice of the 2015 renewal. And in April defendants moved pursuant to section 683.170 to vacate that renewal. They argued that to the extent Bisordi attempted to renew the judgment on behalf of the other judgment creditors, that renewal was the product of the unauthorized practice of law and was therefore void. They also argued that Bisordi's effort to renew his own portion of the judgment was void because it did not provide the separate amount necessary to satisfy his portion of the judgment under section

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683.150, subdivision (c).³ And they argued that WVJP was estopped from enforcing the judgment because of the failure to serve notice of the 2015 renewal.

WVJP opposed the motion, arguing that Bisordi's renewal of the judgment did not constitute the practice of law, and in the alternative asking that the trial court reduce the amount of the renewed judgment under section 683.170, subdivision (c) to reflect only the portion of the judgment owed to Bisordi, his wife, and his late father—36.72% of the total.⁴ WVJP also argued that in filing the renewal form Bisordi was acting on behalf of a joint venture comprised of the 17 judgment creditors.⁵ In a declaration attached to the opposition, Bisordi explained that "[s]ince David D. Wexler had died, I signed and filed Exhibit ‘D’ [the 2015 renewal] for myself, as a judgment creditor, and for all other Plaintiffs."

The motion came on for hearing on May 29, in advance of which the trial court had issued a tentative ruling granting the motion. At the hearing, the trial court rejected the argument that Bisordi renewed the judgment on behalf

52 Cal.App.5th 337

of a joint venture or general partnership, and also declined to modify the amount of the renewed judgment pursuant to section 683.170, subdivision (c), and indicated it would adopt its tentative ruling.

On June 10, the trial court entered its written order, concluding as follows: "Defendant's Motion to Vacate Renewal of Judgment is GRANTED pursuant to Code of Civ. Proc. Section 683.170. The renewal of judgment is vacated. Plaintiff John Bisordi's filing of the October 9, 2015 form EJ-190 Application for and Renewal of Judgment and October 16, 2015 Amended Application for and Renewal of Judgment constituted the unauthorized practice of law to the extent that the application was made on behalf of the seventeen [sic ] other judgment creditors who were included on Attachment ‘A’ to that Application and Amended Application. Timberline Inc. v. Jaisinghani [ (1997) ] 54 [Cal.App.]4th 1361, 1367 [64 Cal.Rptr.2d 4] ; People v. Landlords Professional Services, Inc. [1986) ] 178 Cal.App.3d 68 [223 Cal.Rptr. 483]. The resulting judgment therefore cannot stand. Russell v. Dopp [ (1995) ] 36 Cal.App.4th 765, 775 [42 Cal.Rptr.2d 768]. To the extent that Plaintiff John Bisordi's Application for and Renewal of Judgment was made as to the money judgment awarded in his own name, it does not comply with the requirements of Code of Civ. Proc. section 683.140."⁶

WVJP appealed.

DISCUSSION

WVJP argues that Bisordi's filling out and filing the renewal form was not the

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unauthorized practice of law, and also that Bisordi filed the renewal form on behalf of a joint venture made up of the 17 judgment creditors. We agree with the first argument,...