Newport National Bank v. Adair

• Decision Date: 23 December 1969
• Citation: 2 Cal.App.3d 1043,83 Cal.Rptr. 1
• Court: California Court of Appeals Court of Appeals
• Parties: , 41 A.L.R.3d 603 NEWPORT NATIONAL BANK, etc., Plaintiff and Appellant, v. Herbert S. ADAIR et al., Defendants and Respondents. Civ. 34300.

Page 1

83 Cal.Rptr. 1

2 Cal.App.3d 1043, 41 A.L.R.3d 603

NEWPORT NATIONAL BANK, etc., Plaintiff and Appellant, v. Herbert S. ADAIR et al., Defendants and Respondents.

Civ. 34300.

Court of Appeal, Second District, Division 1, California.

Dec. 23, 1969.

Donald F. Yokaitis, Pasadena, for defendants and respondents.

GUSTAFSON, Associate Justice.

Plaintiff bank had a money judgment against defendant Adair (the amount of which the record does not disclose) and levied execution against personal property of the defendant. At the time of the levy the property was in the possession of a public carrier which had been engaged by defendant to move the property from defendant's rented home in Los Angeles to a newly rented home in Hillsborough.

The home in Hillsborough was a 14-room house, the rent for which was $1,250 per month. It was comparable to the home in Los Angeles from which defendant moved.

Upon the seizure of the property by the Sheriff of San Mateo County, defendant judgment debtor filed an affidavit claiming that all of the property was exempt from execution under the provisions of section 690.2 of the Code of Civil Procedure ¹ in that it was furniture which, because it was used by defendant, 'his wife and three children in their normal, usual and customary station in life' was 'necessary' within the meaning of that word as used in the cited code section. Plaintiff bank filed a declaration in opposition to the claim of exemption in which it asserted that, other than a few designated items of furniture, none of the seized property was 'necessary.' The matter was heard on September 19, 1968, with defendant as the only witness testifying.

The evidence disclosed that defendant's work consisted of finding sources of financing for persons who needed financing for which he received a fee when successful. Except for the year 1965 which defendant described as disastrous, defendant's income from his work was between $40,000 and $50,000 a year. He used his home as the base of his operations and often entertained clients at his home. The family had the services of a maid who had served in that capacity for many years. There was no evidence that any item of personal property which was seized was acquired by defendant after he became indebted to plaintiff bank.

Plaintiff's position in the trial court was, as it is here, that the test of what is necessary to a judgment debtor should be determined in the light of the standard of living which is reasonable for a judgment debtor rather than the standard of living enjoyed by that person before he became a judgment debtor. Except for a washing machine, hair dryer, cooler, refrigerator and rotisserie, ² the trial judge denied plaintiff's motion for an order denying defendant's claim of exemption to all of the items seized. This appeal by plaintiff followed.

We may assume, although the record does not clearly indicate, that the trial judge determined that all of the items ordered returned to defendant were 'necessary' to maintain the standard of living which defendant enjoyed prior to becoming a judgment debtor. After the briefs were filed in this appeal this court (through Division Three) decided INDEPENDENCE BANK V. HELLER (1969) 275 CAL.APP.2D ---, 79 CAL.RPTR. 868^A which we think is determinative of the issue presented by the plaintiff.

In Independence Bank the judgment debtor owed the judgment creditor over $80,000. (We are unaware of the amount owed to plaintiff in this case.) The judgment debtor, who apparently lived alone, had a large apartment lavishly furnished with over $22,000 worth of furniture. (We are not informed of the value of the property seized in the case at bench.) The judgment debtor had become accustomed to living 'in an atmosphere of affluence and elegance' before he became a judgment debtor. In affirming an order which allowed an exemption for almost all of the property, this court rejected the idea that the trial judge should 'have selected piece by piece those articles...