McCallop v. Carberry

Citation1 Cal.3d 903,83 Cal.Rptr. 666,464 P.2d 122
Decision Date30 January 1970
Docket NumberS.F. 22705
CourtUnited States State Supreme Court (California)
Parties, 464 P.2d 122 Robert McCALLOP, Plaintiff and Respondent, v. Matthew C. CARBERRY, as Sheriff, etc., Defendant and Appellant.

James C. Purcell, San Francisco, for defendant and appellant.

Michael S. Zola, Steven J. Antler, Sidney M. Wolinsky, Kenneth Hecht and Michael D. Nasatir, San Francisco, for plaintiff and respondent.

BURKE, Justice.

Upon plaintiff's complaint for declaratory and injunctive relief, alleging that in violation of due process requirements his wages had been attached prior to judgment and that additional levies were threatened, 1 the trial court issued its order to defendant sheriff to release all moneys held by virtue of prejudgment wage attachment and restraining defendant from any further pre- judgment levies on wages. Defendant appeals.

As will appear, we have concluded that the trial court was correct in ruling that California's prejudgment wage garnishment procedure violates procedural due process under the rationale of the recent decision of the United States Supreme Court in Sniadach v. Family Finance Corp. (1969) 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed. 349. The order will therefore be affirmed.

Plaintiff alleges in his complaint: In May 1969 an action was filed against plaintiff seeking to recover some $638 allegedly owing. Thereafter the sum of $96.87 was attached out of his wages at his place of employment, and additional levies on his wages remain yet to be executed, thereby depriving plaintiff of the immediate use of said wages and irreparably injuring him--all without affording plaintiff notice and opportunity for a prior hearing.

In Sniadach v. Family Finance Corp., Ibid, the United States Supreme Court ruled that a prejudgment garnishment of wages levied under a Wisconsin statute constituted a taking of property in violation of procedural due process. As related in the opinion, respondent finance company had instituted a garnishment action against an alleged debtor (defendant) and her employer, as garnishee. The employer answered that it held wages of $63.18 earned by defendant, of which it would pay one-half to her and hold the other half under the garnishment. 2 The Wisconsin statute gave plaintiff ten days in which to serve the summons and complaint on the defendant after the service on the garnishee by which the wages were 'frozen.' Although they could be unfrozen if the defendant won on the merits upon trial of the main suit, the opinion notes that 'in the interim the wage earner is deprived of his enjoyment of earned wages without any opportunity to be heard and to tender any defense he may have, whether it be fraud or otherwise.'

The court next declares that 'Such summary procedure may well meet the requirements of due process in extraordinary situations. (Citations. 3) But in the present case no situation requiring special protection to a state or creditor interest is presented by the facts; nor is the Wisconsin statute narrowly drawn to meet any such unusual condition. * * * In the context of this case the question is whether the interim freezing of the wages without a chance to be heard violates procedural due process.

'A procedural rule that may satisfy due process for attachments in general, see McKay v. McInnes, (1929) 279 U.S. 820, 49 S.Ct. 344, 73 L.Ed. 975, 4 does not necessarily satisfy procedural due process in every case. The fact that a procedure would pass muster under a feudal regime does not mean it gives necessary protection to all property in its modern forms. We deal here with wages--a specialized type of property presenting distinct problems in our economic system. * * *

'A prejudgment garnishment of the Wisconsin type is a taking which may impose tremendous hardship on wage earners with families to support. * * * Recent investigations of the problem have disclosed the grave injustices made possible by prejudgment garnishment whereby the sole opportunity to be heard comes after the taking. * * * The leverage of the creditor on the wage earner is enormous (if the wages are tied up by garnishment). * * *

'(Also) it appears that in Wisconsin the statutory exemption granted the wage earner is 'generally insufficient to support the debtor for any one week."

The opinion then concludes: 'The result is that a prejudgment garnishment of the Wisconsin type may as a practical matter drive a wage-earning family to the wall. (Fn. Omitted.) Where the taking of one's property is so obvious, it needs no extended argument to conclude that absent notice and a prior hearing (cf. Coe v. Armour Fertilizer Works (1915) 237 U.S. 413, 423, 35 S.Ct. 625, 59 L.Ed. 1027) 5 this prejudgment garnishment procedure violates the fundamental principles of due process.'

The California law under which prejudgment attachment of wages is permitted (found in Code Civ.Proc.) 6 differs from the law of Wisconsin with respect to various of the objectionable elements of Wisconsin type wage attachments pointed out by the court in the Sniadach opinion. 7 Nevertheless, it is clear that under the California statute one-half of a defendant's wages received for his personal services is subject to attachment prior to hearing upon the merits of the plaintiff's claims against defendant. And even if defendant succeeds in establishing that such one-half of his earnings is exempt under section 690.11, that one-half could be tied up for as long as 25 days pending determination of his claim of exemption. (See fn. 7, Ante.) Meantime, while awaiting hearing upon the merits of plaintiff's prejudgment claims or upon defendant's claim of exemption of All his earnings, a defendant wage earner with a family to support could undergo the extreme hardship emphasized in Sniadach. We are persuaded that this type of prejudgment wage garnishment falls within the rationale of Sniadach, and must be held to constitute a taking of property in violation of procedural due process. 8

The order appealed from is affirmed.

TRAYNOR, C.J., and McCOMB, PETERS, TOBRINER, MOSK, and SULLIVAN, JJ., concur.

1 Plaintiff additionally alleged that he was also seeking relief on behalf of other persons similarly situated and was representing them as a class.

2 The opinion notes in footnote 1 thereof that the Wisconsin statute directs a garnishee to pay 'a subsistence allowance' out of wages then owing, of $25 to an employee without dependents or $40 to one with dependents, but in no event in excess of 50 percent of the wages owing.

3 The opinion here cites the following cases, each of which rejects a due process attack:

Fahey v. Mallonee (1947) 332 U.S. 245, 253--254, 67 S.Ct. 1552, 91 L.Ed. 2030, in which the Federal Home Loan Bank Administrator, without notice or hearing, appointed a conservator for a federal savings and loan association, who at once entered and took possession; the grounds were that the association was conducting its affairs in an unlawful, unauthorized and unsafe manner and jeopardizing the interests of its members, its creditors, and the public.

Ewing v. Mytinger & Casselberry, Inc. (1949) 339 U.S. 594, 598--600, 70 S.Ct. 870, 94 L.Ed. 1088, in which...

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