McCallop v. Carberry, S.F. 22705

• Court: United States State Supreme Court (California)
• Writing for the Court: BURKE; TRAYNOR
• Citation: 1 Cal.3d 903,83 Cal.Rptr. 666,464 P.2d 122
• Parties: , 464 P.2d 122 Robert McCALLOP, Plaintiff and Respondent, v. Matthew C. CARBERRY, as Sheriff, etc., Defendant and Appellant.
• Docket Number: S.F. 22705
• Decision Date: 30 January 1970

Page 666

83 Cal.Rptr. 666 1 Cal.3d 903, 464 P.2d 122 Robert McCALLOP, Plaintiff and Respondent,
v.
Matthew C. CARBERRY, as Sheriff, etc., Defendant and Appellant. S.F. 22705. Supreme Court of California,
In Bank. Jan. 30, 1970.

[1 Cal.3d 904] 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-

Page 667

[464 P.2d 123] 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 [1 Cal.3d 905] 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

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[464 P.2d 124] 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[1 Cal.3d 906] 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...