Randone v. Appellate Department

CourtUnited States State Supreme Court (California)
Writing for the CourtTOBRINER; WRIGHT
Citation5 Cal.3d 536,96 Cal.Rptr. 709,488 P.2d 13
Parties, 488 P.2d 13 Joseph Anthony RANDONE et al., Petitioners, v. The APPELLATE DEPARTMENT OF the SUPERIOR COURT OF SACRAMENTO COUNTY,Respondent; NORTHERN CALIFORNIA COLLECTION SERVICE INC. OF SACRAMENTO, Real Party inInterest. Sac. 7885.
Decision Date26 August 1971

Page 709

96 Cal.Rptr. 709
5 Cal.3d 536, 488 P.2d 13
Joseph Anthony RANDONE et al., Petitioners,
v.
The APPELLATE DEPARTMENT OF the SUPERIOR COURT OF SACRAMENTO COUNTY,Respondent;
NORTHERN CALIFORNIA COLLECTION SERVICE INC. OF SACRAMENTO, Real Party inInterest.
Sac. 7885.
Supreme Court of California,
In Bank.
Aug. 26, 1971.
As Modified Sept. 23, 1971.

Page 710

[488 P.2d 14] [5 Cal.3d 539] James F. King, Jr., David M. Blicker, Blackmon, Isenberg, Moulds & Blicker, Gary M. Gallery, Sacramento, for petitioners.

Evelle J. Younger, Atty. Gen., Andrea Sheridan Ordin, Deputy Atty. Gen., Herbert Gall, John Gall, Hill, Farrer & Burrill and Jack R. White, Los Angeles, as amici curiae on behalf of petitioners.

No appearance for respondent.

Dahl, Hafner, Stark, Marois & James, John D. Bessey, Loren S. Dahl, Sacramento, for real party in interest.

Gitelson, Katz, Hoyt & Blum, Los Angeles, James M. Conners, San Francisco, Alfred Gitelson, George R. Richter, Jr., Merrill R. Francis, William M. Burke, Anderson, McPharlin & Conners, Peter R. Regal, Jr., Los Angeles, Robert D. Raven, San Francisco, Bernard Shapiro and Gendel, Raskoff, Shapiro & Quittner, Los Angeles, as amici curiae on behalf of real party in interest.

[5 Cal.3d 540] TOBRINER, Justice.

For more than a century California creditors have enjoyed the benefits of a variety of summary prejudgment remedies, and, until recently, the propriety of such procedures had gone largely unchallenged. In June 1969, however, the United States Supreme Court in Sniadach v. Family Finance Corp. (1969) 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349, concluded that a Wisconsin prejudgment wage garnishment statute violated a debtor's right to procedural due process, by sanctioning the 'taking' of his property without affording him prior notice and hearing. The force of the constitutional principles underlying the Sniadach decision has brought the validity of many of our state's summary prejudgment remedies into serious question.

In McCallop v. Carberry (1970) 1 Cal.3d 903, 83 Cal.Rptr. 666, 464 P.2d 122 and Cline v. Credit Bureau of Santa Clara Valley (1970) 1 Cal.3d 908, 83 Cal.Rptr. 669, 464 P.2d 125, we examined the California wage garnishment statutes in light of Sniadach and, although the California provisions differed from the Wisconsin statute in several respects (see 1 Cal.3d at p. 906, fn. 7, 83 Cal.Rptr. 666, 464 P.2d 122), we concluded that the California procedure exhibited the same fundamental, constitutional vice as the statute invalidated in Sniadach. More recently, our court has determined in Blair v. Pitchess (1971) 5 Cal.3d 258, 96 Cal.Rptr. 42, 486 P.2d 1242, that California's present claim and delivery procedures, permitting prejudgment replevin prior to notice or hearing, cannot withstand the constitutional scrutiny dictated by Sniadach. In the instant proceeding we are faced with a similar challenge to one segment of California's prejudgment attachment procedure, section 537, subdivision 1, of the Code of Civil Procedure, which, in general, permits the attachment of any property of the defendant-debtor, without prior notice or hearing, upon the filing of an action on an express or implied contract for the payment of money. 1

Page 711

[488 P.2d 15] [5 Cal.3d 541] For the reasons discussed below, we have concluded that in light of the constitutional precepts embodied by Sniadach and this court's subsequent decisions in McCallop, Cline and Blair, the prejudgment attachment procedure sanctioned by subdivision 1 of section 537 violates procedural due process as guaranteed by article 1, section 13 of the California Constitution and the Fifth and Fourteenth Amendments of the United States Constitution. In reaching this conclusion we note that the Supreme Courts of Minnesota and Wisconsin have recently arrived at similar determinations, invalidating general prejudgment garnishment statutes on the authority of Sniadach. (Jones Press Inc. v. Motor Travel Services, Inc. (1970) 286 Minn. 205, 176 N.W.2d 87; Larson v. Fetherston (1969) 44 Wis.2d 712, 172 N.W.2d 20.)

The recent line of cases, commencing with Sniadach, reaffirms the principle that an individual must be afforded notice and an opportunity for a hearing before he is deprived of any significant property interest, and that exceptions to this principle can only be justified in 'extraordinary circumstances.' Section 537, subdivision 1, drafted long before the decision in Sniadach, does not narrowly draw into focus those 'extraordinary circumstances' in which summary seizure may be actually required. Instead, the provision sweeps broadly, approving attachment over the entire range of 'contract actions,' a classification which has no rational relation to either the public's or creditors' need for extraordinary prejudgment relief. Moreover, the subdivision at issue fails to take into account the varying degrees of deprivation which result from the attachment of different kinds of property. Consequently, the section improperly permits a writ of attachment to issue without notice or hearing even in situations in which the attachment deprives a debtor of 'necessities of life;' this wide overbreadth of the statute condemns it. In light of these substantial constitutional infirmities inherent in the provision, we find that the lower court abused its discretion in refusing to release the attachment of defendants' bank account and thus we conclude that a writ of mandate should issue.

1. The facts of the instant case.

This constitutional challenge arises out of the attachment of a back account of Mr. and Mrs. Joseph Randone by the Thunderbird Collection Services, Inc., a licensed collection agency registered under the name of [5 Cal.3d 542] Northern California Collection Service, Inc. of Sacramento. On February 16, 1970, the collection agency filed an action against the Randones, as individuals and doing business as Randone Trucking,

Page 712

[488 P.2d 16] alleging (1) that the Randones had failed to pay a bill for $490 for services rendered to them by the Sacramento law firm of Cohen, Cooper and Ziloff, (2) that the collection agency was the assignee of that debt, and thus (3) that the Randones were indebted to the collection agency for the $490 principal, plus $130 in accumulated interest.

On March 17, 1970, the collection agency secured a writ of attachment from the Clerk of the Sacramento County Municipal Court and levied that attachment upon the defendants' checking account at a branch of the Crocker-Citizens Bank in Fair Oaks, California. At the time the bank account contained $176.20 and, pursuant to the attachment, that amount continues to be withheld from the Randones by their bank pending receipt of a court order releasing the attachment.

On March 31, 1970, the Randones filed a motion to dissolve the attachment on the ground that the issuance of the writ prior judgment constituted a violation of due process; they cited the Sniadach, McCallop and Cline cases as authority for their contention. At the same time they also filed an affidavit attesting that their sole source of income was unemployment insurance; in light of the hardship caused by the attachment of their bank accounts, they requested that the court shorten the time before the hearing of their motion. Pursuant to this request, the court noticed the motion to dissolve the attachment for argument on April 3, 1970.

On April 3 the municipal court heard the motion and denied it. The Randone filed a timely notice of appeal to the Appellate Department of the Superior Court of Sacramento County, again contending that the rationale of Sniadach and its California progeny required that a debtor be afforded notice and a hearing prior to the attachment of his bank account. On October 29, 1970, the appellate department affirmed the municipal court decision without written opinion. The Randones thereafter requested that in light of the general importance of the issues presented, the case be certified to the Court of Appeal, but on November 5, 1970, the appellate department denied this petition as well.

Having exhausted all the available procedural measures on appeal, the Randones petitioned this court for an original writ to review the lower court decision maintaining the attachment. Recognizing that defendants' challenge to the constitutionality of section 537, subdivision 1, involved a question of general importance, over which a considerable conflict had [5 Cal.3d 543] emerged in our lower courts, 2 and that the issue would often arise in municipal court proceedings from which no appeal to our court would be possible without a certification by the superior court, we exercised our discretion and issued an alternative writ of mandamus to determine whether the lower court abused its discretion in refusing to dissolve the attachment at issue. '(B)y so doing 'we have necessarily determined that there is no adequate remedy in the ordinary course of law and that (this) case is a proper one for the exercise of our original jurisdiction.' (Westbrook v. Mihaly (1970) 2 Cal.3d 765, 773, 87 Cal.Rptr. 839, 844, 471 P.2d 487, 492.)' (San Francisco Unified School Dist. v. Johnson (1971) 3 Cal.3d 937, 945, 92 Cal.Rptr. 309, 313, 479 P.2d 669, 673; see also Schweiger v. Superior Court (1970) 3 Cal.3d 507, 517--518, 90 Cal.Rptr. 729, 476 P.2d 97.)

Page 713

[488 P.2d 17] 2. Section 537, subdivision 1 permits the initial attachment of all of a debtor's property without affording the individual either notice of the attachment or a prior hearing to contest the attachment.

Our review of the constitutionality of the attachment provision at issue necessarily begins with an examination of the actual operation of the attachment procedure under existing law and a comparison of this procedure with the procedures found inadequate in Sniadach, McCallop, Cline and Blair.

In California 'attachment' is a purely statutory remedy (Ponsonby v. Sacramento Suburban Fruit Lands Co....

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  • Love v. City of Monterey, No. H012606
    • United States
    • California Court of Appeals
    • August 3, 1995
    ...Brooks v. Small Claims Court (1973) [8 Cal.3d] 661, 667-668 [105 Cal.Rptr. 785, 504 P.2d 1249]; Randone v. Appellate Department (1971) 5 Cal.3d 536, 547 [96 Cal.Rptr. 709, 488 P.2d 13]; Blair v. Pitchess (1971) 5 Cal.3d 258, 277 [96 Cal.Rptr. 42, 486 P.2d 1242]; McCallop v. Carberry (1970) ......
  • People v. Cowan, A156253
    • United States
    • California Court of Appeals
    • March 27, 2020
    ...protections have been "worked out over many decades of constitutional litigation." ( Randone v. Appellate Dept. of Superior Court (1971) 5 Cal.3d 536, 548–549, 96 Cal.Rptr. 709, 488 P.2d 13.) It requires no "alteration of principles of due process" ( id . at p. 551, 96 Cal.Rptr. 709, 488 P.......
  • Marriage of Baker, In re, No. A038122
    • United States
    • California Court of Appeals
    • August 30, 1988
    ...be heard. (See Sniadach v. Family Finance Corp. (1969) 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349; Randone v. Appellate Department (1971) 5 Cal.3d 536, 96 Cal.Rptr. 709, 488 P.2d 13.) However, since the plan is a fiduciary acting as a stakeholder, Congress determined there is no reason for......
  • San Diego Bldg. Contractors Assn. v. City Council
    • United States
    • United States State Supreme Court (California)
    • December 26, 1974
    ...of the 'due process' guaranteed by our state Constitution is 'a meaningful opportunity to be heard. '' (Randone v. Appellate Department, 5 Cal.3d 536, 550, 96 Cal.Rptr. 709, 718, 488 P.2d 13, 21, and cases cited.) On the other hand, we have acknowledged that "Due process' is an elusive conc......
  • Request a trial to view additional results
180 cases
  • Love v. City of Monterey, No. H012606
    • United States
    • California Court of Appeals
    • August 3, 1995
    ...Brooks v. Small Claims Court (1973) [8 Cal.3d] 661, 667-668 [105 Cal.Rptr. 785, 504 P.2d 1249]; Randone v. Appellate Department (1971) 5 Cal.3d 536, 547 [96 Cal.Rptr. 709, 488 P.2d 13]; Blair v. Pitchess (1971) 5 Cal.3d 258, 277 [96 Cal.Rptr. 42, 486 P.2d 1242]; McCallop v. Carberry (1970) ......
  • People v. Cowan, A156253
    • United States
    • California Court of Appeals
    • March 27, 2020
    ...protections have been "worked out over many decades of constitutional litigation." ( Randone v. Appellate Dept. of Superior Court (1971) 5 Cal.3d 536, 548–549, 96 Cal.Rptr. 709, 488 P.2d 13.) It requires no "alteration of principles of due process" ( id . at p. 551, 96 Cal.Rptr. 709, 488 P.......
  • Marriage of Baker, In re, No. A038122
    • United States
    • California Court of Appeals
    • August 30, 1988
    ...be heard. (See Sniadach v. Family Finance Corp. (1969) 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349; Randone v. Appellate Department (1971) 5 Cal.3d 536, 96 Cal.Rptr. 709, 488 P.2d 13.) However, since the plan is a fiduciary acting as a stakeholder, Congress determined there is no reason for......
  • San Diego Bldg. Contractors Assn. v. City Council
    • United States
    • United States State Supreme Court (California)
    • December 26, 1974
    ...of the 'due process' guaranteed by our state Constitution is 'a meaningful opportunity to be heard. '' (Randone v. Appellate Department, 5 Cal.3d 536, 550, 96 Cal.Rptr. 709, 718, 488 P.2d 13, 21, and cases cited.) On the other hand, we have acknowledged that "Due process' is an elusive conc......
  • Request a trial to view additional results

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