Abatti v. Eldridge

Opinion

Appellants (Eldridges) were sued by the Abattis for specific performance of an option contract on real property.

The 1941 legislation while amending section 688 also enacted section 688.1, creating an entirely new procedure and affording the judgment creditor an opportunity to obtain a lien upon the cause of action. (Stats. 1941, ch. 1148.) “Evidently this section was intended to give the judgment creditor a new means of reaching a cause of action belonging to his judgment debtor and upon which an action is pending, since, under the amendment to Section 688, the cause of action no longer can be levied upon and sold on execution.... Since experience has demonstrated that a cause of action upon which an action is pending does not bring very much on execution sale [fn. omitted] the remedy now provided for by Section 688.1 is a more just and reasonable one. It protects the judgment creditor and gives him adequate relief and at the same time does not produce unfair hardship insofar as the judgment debtor is concerned.” (T he Work of the 1941 Legislature, supra, 15 So.Cal.L.Rev. at p. 18.) (See Roseburg Loggers, Inc. v. U. S. Plywood-Champion Papers, Inc. (1975) 14 Cal.3d 742 , 746-747 [ 122 Cal.Rptr. 567 , 537 P.2d 399 ].)

The plain explicit language of section 688.1 permits the judgment creditor of any party, plaintiff or defendant, to move for a lien. A 1968 amendment to section 688.1 substituted the words “any party” where formerly the section only spoke of plaintiffs. (§ 688.1 (West's 1979 supp.) official forms.) The fact that the prior law was amended demonstrates an intent to change the preexisting law. (Eu v. Chacon (1976) 16 Cal.3d 465 , 470 [ 128 Cal.Rptr. 1 , 546 P.2d 289 ].) The broader term “any party” was intended to embrace those on the defense side of the cause as well as the offense. Any other interpretation would render the “any party” language mere surplusage, thereby not giving significance to every word. (Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 640 , 645 [ 335 P.2d 672 ].)

The term “cause of action” is subject to different meanings dependent on its usage in a given context. (Lippert v. Bailey (1966) 241 Cal.

A “cause of action” is simply “‘the obligation sought to be enforced.’” (Busick v. Workmen's Comp. Appeals Bd. (1972) 7 Cal.3d 967 , 975 [ 104 Cal.Rptr. 42 , 500 P.2d 1386 ]; Eichler Homes of San Mateo, Inc. v. Superior Court (1961) 55 Cal.2d 845 , 847 [ 13 Cal.Rptr. 194 , 361 P.2d 914 ]; Panos v. Great Western Packing Co. (1943) 21 Cal.2d 636 , 638 [ 134 P.2d 242 ]; Shelton v. Superior Court (1976) 56 Cal.App.3d 66 , 80 [ 128 Cal.Rptr. 454 ]; Colvig v. RKO General, Inc. (1965) 232 Cal.App.2d 56 , 66 [ 42 Cal.Rptr. 473 ].)

In Frost v. Witter (1901) 132 Cal. 421 , 426 [ 64 P. 705 ], the Supreme Court explained: “The latter term [action] is very commonly confounded with the suit (litis) in which the action is enforced. But this is not the technical meaning of the term, according to which an action is simply the right or power to enforce an obligation. ‘An action is nothing else than the right or power of prosecuting in a judicial proceeding what is owed to one,’—which is but to say, an obligation. (Actio nihil aliud est quam jus persequendi in judicio quod sibi debitur.) The action therefore springs from the obligation, and hence the ‘cause of action’ is simply the obligation.”

The cause of action constitutes the entire set of facts which gives rise to an enforceable claim. (Life & Casualty Insurance Company of Tenn. v. Webb (1965) 112 Ga.App.344 [ 145 S.E.2d 63 , 67]; Elliott v. Mosgrove (1939) 162 Ore. 507 [ 93 P.2d 1070 , 1072-1073]; Black's Law Dict. (4th ed.) pp. 279-280.) The foregoing definitions compel this conclusion: the term “cause of action” is not limited to the plaintiffs right to recover in a court proceeding.

Here the underlying set of facts, the obligation sought to be enforced —the cause of action—was contractual in nature invoking mutual interdependent rights and duties. Eldridges granted an option which Abattis sought to specifically enforce. While the option did not create a binding obligation on Abattis, yet once exercised a bilateral contract arose which may be enforced by specific performance by either the optionor or optionee. “[W]here a party commences an action to compel the specific enforcement of an agreement for the sale of real property, the

Abattis, in order to obtain specific performance, would have the concomitant obligation to pay the agreed purchase price of $246,500 to Eldridges according to the terms of their contract. Thus Eldridges, not just Abattis, have a right to relief in this court proceeding. The “entire set of facts” gives rise to an obligation owing to Eldridges.

Eldridges argue the Legislature manifested its intent to give a narrow definition to “cause of action” language and remedial scope of section 688.1 when it deleted from a proposed amendment to section 688.1 the clause “or the right to relief, if the party or parties against whom the lien is sought are appearing in a capacity other thán plaintiff.” (Code Civ. Proc., § 688.1 official forms (1968 amend.); Stats. 1970, ch. 1245.) The legislative failure to include this language in the section 688.1 is susceptible to numerous inferences, all of which are naught but pure speculation. Moreover, such argument flies in the face of our duty to construe this remedial statute liberally. (McClearen v. Superior Court (1955) 45 Cal.2d 852 , 856 [ 291 P.2d 449 ].)

We conclude a “cause of action” was vested in Eldridges subject to lien by Lanza under section 688.1.

Finally, Eldridges argue the trial court’s order must be considered void because the Bank, a secured creditor of Eldridges, without notice, was not given priority over Lanza on the proceeds of the sale of property. Eldridges represent the option agreement required the land be transferred subject only to a first trust deed; that the Bank obtained its second trust deed on the property after the granting of the option. Eldridges also assert that upon Abattis’ attempt to exercise the option, it was found the agreement was impossible to perform because the amount due under a guaranty secured by the Bank’s deed of trust exceeded the value of the land. These facts, if true, do not make the lien here imposed void. There may be no funds forthcoming from this lawsuit to which the lien may attach; but such fact, if it be fact, does not negate the lien.