Johnston v. Cunningham

Opinion

This is an appeal from an order sustaining a release of attachment by the constable and “allowing” a third party claim.

The problem centers on that provision of the first paragraph of Code of Civil Procedure section 689, which permits the levying officer to release personal property from a levy after a third party claim has been made “unless the plaintiff . . . within five days after written demand by such officer, made by registered or certified mail within five days after being served with such certified claim, gives such officer an undertaking . . .

Here plaintiff attached defendant Cunningham’s prune crop, which was being held in a dehydrator owned by one Kimura. On November 4, 1968, the claimant Spinelli delivered his third party claim to the constable. On the same day the constable mailed plaintiff’s attorney, Mrs. Pamela Carrico, a copy of the claim with a covering letter which informed Mrs. Carrico that she was “hereby served” with the claim. The letter contained

Both on its face and in the light of its legislative history, section 689 requires the written demand as a prerequisite to the creditor’s obligation to post the undertaking. Absent any statutory ambiguity or internal conflict, the phrase “written demand” must receive its ordinary meaning, that is, as denoting a command or authoritative request in written form. (Cf. Smith v. Municipal Court, 167 Cal.App.2d 534 , 538 [ 334 P.2d 931 ].) The objective of the written command is an undertaking to indemnify the claimant. A mere notice of a third party claim fails to express that command.

If permitted to stand, the trial court’s “substantial compliance” rationale would effectually abrogate the written demand as a prerequisite to the creditor’s obligation to post an undertaking. “Substantial compliance cannot be predicated upon no compliance.” (Hall v. City of Los Angeles, 19 Cal.2d 198 , 202 [ 120 P.2d 13 ].) The statute cannot be construed to “omit what has been inserted” and all its provisions must be given effect. (Code Civ. Proc., § 1858.)

An analogy appears in Robinson v. Baker, 35 Cal.App. 318 [ 169 P. 694 ]. There a statute required that a sheriff have written authority to release an attachment. In view of the statutory requirement of a writing, the court held that evidence of an alleged oral authorization was inadmissible. (See also Turnan v. Brown, 59 Cal.App.2d 16 , 21-22 [ 138 P.2d 363 ].)

Moreover, since the constable failed to give the prescribed written demand, his later oral demand was ineffectual. (Cf. Turnan v. Brown, supra; Robinson v. Baker, supra.) There should be no implication that the statute invests the officer with discretion to make or withhold a written demand. A constable is a ministerial or executive officer, not a judicial officer. (Vallindras v. Massachusetts etc. Ins. Co., 42 Cal.2d 149 , 154 [ 265 P.2d 907 ].) The point here is that he failed to follow the statute. That failure put plaintiff and his attorney in the untenable position of prognosticating the outcome of an uncertain legal situation. Plaintiff and his attorney were entitled to rely upon the statute as written.

The eighth paragraph of section 689 states that a hearing to determine title “must be granted” when a party files a timely petition. The hearing must take place within 20 days of the filing. In such a hearing the burden of proof of title is on the claimant. (Butler v. Nepple, 54 Cal.2d 589 , 602 [ 6 Cal.Rptr. 767 , 354 P.2d 239 ].) As the same statutory paragraph distinctly declares, the hearing must be held “whether any undertaking . . . be given or not.”

Without holding the mandatory hearing and without requiring the claimant to come forward with proof of title, the trial court entered an order “allowing” the third party claim. The order did not in terms declare where title lay; yet it had the practical consequence of such a declaration. In effect, it permitted the claimant to walk off with the property or its proceeds and left the attaching creditor empty-handed. The summary disposition of the property without taking or considering evidence of title was reversible error. (See National Auto. Ins. Co. v. Fraties, 46 Cal.App.2d 431 [ 115 P.2d 997 ].)

The claimant charges plaintiff with laches and estoppel. These charges are baseless. The contention that the matter is moot because of the sale of the prunes is inacceptable. The record supplies no information regarding the sale price or present possession of the sale proceeds. Plaintiff filed a timely petition for a hearing to determine title, and the statute entitles him to that hearing. If the hearing results in a final title determination adverse to plaintiff, that determination will end the matter. If the determination is adverse to the third party claimant, plaintiff may then consider what remedies to pursue.

Spinelli, the claimant, contends that “attachments are now unconstitutional,” citing Sniadach v. Family Finance Corp., 395 U.S. 337 [ 23 L.Ed.2d 349 , 89 S.Ct. 1820 ]. The Sniadach case held a prejudgment wage garnishment violative of procedural due process, distinctly confining its holding to wages and wages alone. (395 U.S. at p. 340 [23 L.Ed.2d at p. 353]; see McCallop v. Carberry, 1 Cal.3d 903 , 905 [ 83 Cal.Rptr. 666 , 464 P.2d 122 ]; People ex rel. Lynch v. Superior Court, 1 Cal.3d 910 [ 83 Cal.Rptr. 670 , 464 P.2d 126 ]; McKay v. McInnes, 279 U.S. 820 [ 73 L.Ed.

The order is reversed and the cause remanded to the trial court with directions to determine title in accordance with the provisions of section 689, Code of Civil Procedure, and to take such other proceedings consistent with this opinion as may be appropriate.

Regan, J., and Janes, J., concurred.