Filed 12/10/13 Fiero v. Perle CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

ALFONSO FIERO,

Plaintiff and Respondent,

v.

CERY B. PERLE,

Defendant and Appellant.

 B237779

 (Los Angeles County

 Super. Ct. No. BC438061)

APPEAL from a judgment of the Superior Court of Los Angeles County. 

Michelle Rosenblatt, Judge. Affirmed.

Joseph Darrell Palmer for Defendant and Appellant.

Lesile Schwaebe Akins for Plaintiff and Respondent.

_________________________________
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Appellant, Cery Bradley Perle, appeals a judgment entered upon an order granting 

summary judgment in favor of respondent, Alfonso Fiero, on his complaint to enforce a 

money judgment. The trial court found that the automatic stay resulting from appellant’s 

bankruptcy proceedings, and the injunction resulting from the bankruptcy court’s 

judgment discharging appellant’s debt, prohibited respondent from timely bringing an 

action to enforce the judgment. Before this court, appellant argues that the discharge of 

appellant’s debt and the reopening of appellant’s bankruptcy case to determine the 

dischargeability of that debt did not serve to toll the statute of limitations to enforce the 

judgment or to renew the judgment. As we shall explain, the trial court properly 

concluded the statute of limitations was tolled and therefore respondent’s action to 

enforce the judgment was timely. Accordingly we affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

On June 7, 1999, the superior court entered a judgment in favor of respondent 

against appellant for $350,000. On May 25, 2001, appellant filed a voluntary petition for 

bankruptcy. On March 11, 2002, the bankruptcy court ordered the discharge of 

appellant’s debt and closed the case on March 28, 2002. Respondent, unaware of 

appellant’s bankruptcy, attempted to enforce the money judgment against appellant on 

January 12, 2006. However, appellant informed respondent that appellant’s debt was 

discharged in the bankruptcy proceeding. 

In response to the discharge of appellant’s debt, respondent submitted a motion to 

the bankruptcy court on September 7, 2006 to determine the dischargeability of 

appellant’s debt. The court granted respondent’s motion on September 13, 2006 and 

reopened appellant’s bankruptcy case as an adversary proceeding to determine the 

dischargeability of appellant’s debt. On December 7, 2009, the bankruptcy court granted 

respondent’s motion for summary judgment in the adversary proceeding. The bankruptcy 
3

court ordered a final judgment on February 1, 2010, ruling that appellant’s debt (i.e., the 

June 7, 1999 judgment) was not discharged in appellant’s bankruptcy in 2002.1

On May 20, 2010, respondent filed the underlying complaint against appellant

seeking to enforce the judgment that had been entered in respondent’s favor against 

appellant on June 7, 1999. Appellant filed a motion for summary judgment, arguing that 

the judgment was no longer enforceable because respondent had not renewed the 

judgment within the 10 years after it was entered, and alternatively that respondent did 

not file a new action to enforce the judgment within the 10-year statute of limitations 

period. Respondent also filed a summary judgment motion, arguing that although the 

new action was not brought within 10 years, the statute of limitations was tolled by: (1) 

appellant’s bankruptcy proceeding; (2) the injunction created by the discharge of 

appellant’s debt in the bankruptcy proceeding; and (3) the time during the reopened 

bankruptcy. 

On October 4, 2011, the trial court granted respondent’s summary judgment 

motion and denied appellant’s motion. The court ruled that although under California 

law the 10-year statute of limitations to enforce on a judgment is ordinarily not tolled for 

any reason, California law regarding new actions on prior judgments permitted tolling in 

certain circumstances. Both parties agreed that the original bankruptcy proceedings 

tolled the statute of limitations, but the court went further and held that the period of time 

during which appellant’s debts were discharged also tolled the statute of limitations 

because respondent could take no lawful action to collect on the debt during that time. 

 

1 Appellant appealed the bankruptcy court’s final judgment to the Ninth Circuit 

Court of Appeals. Both parties briefed and argued the case to the Ninth Circuit on 

December 7, 2012. On August 2, 1013, the Ninth Circuit affirmed the judgment of the 

bankruptcy court. (In re Perle (2013) 725 F.3d 1023.) Respondent’s motion for an order 

granting judicial notice of the Ninth Circuit’s opinion is granted.
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The court entered its final judgment on December 6, 2011.2 Appellant timely filed this 

appeal from the judgment.

DISCUSSION

I. Standard of Review

On appeal from an order granting summary judgment, the appellate court exercises 

de novo review. (Hartt v. County of Los Angeles (2011) 197 Cal.App.4th 1391, 1397.) 

II. The Trial Court Properly Entered Judgment in Favor of Respondent

Generally, under the Enforcement of Judgments law, enacted in 1982 (Code Civ. 

Proc., § 680.010 et seq.), a judgment is enforceable for only 10 years after the date of its 

entry. (Code Civ. Proc. § 683.020, subd. (a).) However, two methods exist to extend the 

time for enforcing a judgment: (1) renewal of the judgment, or (2) the filing of a separate 

action on the judgment. (Code Civ. Proc., §§ 683.050 & 337.5, subd. (3); Fidelity 

Creditor Service, Inc. v. Browne (2001) 89 Cal.App.4th 195, 200-201; Pratali v. Gates 

(1992) 4 Cal.App.4th 632, 637.)

However, the application of the statute of limitations to these two procedures 

differs. The differences are described in the California Law Revision Commission’s 

comment to Code of Civil Procedure section 683.050, which states: “The 10-year period 

provided by Section 683.020 and the 10-year statute of limitations provided by Section 

337.5 are not coterminous. The period prescribed in Section 683.020 commences on the 

date of entry and is not tolled for any reason.” On the other hand, “The statute of 

limitations [contained in section 337.5] commences to run when the judgment is final and 

may be tolled. . . .” (Cal. Law Revision Com. com., 17 West’s Ann. Code of Civ. Proc. 

(1987 ed.) foll. § 683.050, p. 75, italics added; see also Fidelity Creditor Service, Inc. v. 

Browne, supra, 89 Cal.App.4th at p. 201; Pratali v. Gates, supra, 4 Cal.App.4th at p. 

638.) Therefore, while the time period for renewal is not tolled for any reason, the time 

period for the filing of an independent separate action allows for tolling. 

 

2 After the trial court’s final judgment, respondent filed a notice of renewal of the 

judgment and appellant objected to respondent’s notice of renewal of judgment. 
5

Based on this section, appellant contends the action on the judgment was barred 

because: (1) respondent failed to renew the 1999 judgment within the prescribed 10-year 

period; and (2) the 10-year period within which to renew the 1999 judgment cannot be 

tolled for any reason under the statute. 

Although appellant’s contentions are correct, they are beside the point. (Pratali 

v. Gates, supra, 4 Cal.App.4th at p. 637 [the court disregarded appellant’s contention that 

respondent failed to renew the judgment because respondent filed a separate action in the 

underlying action, not a notice of renewal].) Regardless of whether the renewal was 

timely, the respondent brought a separate, independent action to enforce the 1999 

judgment. Therefore, appellant’s arguments with respect to the renewal of the judgment 

are not relevant to the outcome.

Here, the judgment was entered on June 7, 1999. Thus, under Code Civil 

Procedure section 337.5, any new action brought under Code of Civil Procedure section 

683.050 had to have been filed by June 8, 2009. Respondent concedes that his action to 

enforce the judgment was filed May 20, 2010—10 years, 11 months, and 13 days after 

the judgment. Respondent contends, however, the statute of limitations was tolled

during: (1) the pendency of appellant’s original bankruptcy proceedings, (between May 

25, 2001 and March 11, 2002); (2) the period of the injunction created by the discharge of 

appellant’s debt on March 11, 2002, until the reopening of appellant’s bankruptcy case in 

2006; and (3) the pendency of the appellant’s reopened bankruptcy proceeding until the 

bankruptcy court’s determination of the nondischargeability of the appellant’s debt on 

February 1, 2010. As we shall explain, the statute of limitations was tolled both during 

and after the original bankruptcy proceedings.

A. The Statute Of Limitations Was Tolled During Appellant’s Bankruptcy 

Proceeding

Code of Civil Procedure section 356 provides that “[when] the commencement of 

an action is stayed by injunction or statutory prohibition, the time of the continuance of 

the injunction or prohibition is not part of the time limited for the commencement of the 

action.” Furthermore, title 11, United States Code section 362(a) (hereafter section 
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362(a)) automatic stay provision “provides for a broad stay of litigation, lien enforcement 

and other actions judicial or otherwise, that are attempts to enforce or to collect 

prepetition claims. It also stays a wide range of actions that would affect or interfere with 

property of the estate, property of the debtor or property in custody of the estate.” 

(Kertesz v. Ostrovsky (2004) 115 Cal.App.4th 369, 373.)

Pursuant to Code of Civil Procedure section 356 and section 362(a), case law 

recognizes a “bankruptcy stay [as] a ‘statutory prohibition’ within the meaning of Code 

of Civil Procedure section 356,” and thus “the period of time of the automatic stay should 

not be counted as part of the limitation time.” (Schumacher v. Worcester (1997) 55 

Cal.App.4th 376, 380; accord Kertesz v. Ostrovsky (2004) 115 Cal.App.4th 369, 378; 

Wells v. California Tomato Juice, Inc. (1941) 47 Cal.App.2d 634, 637-638.) 

In Kertesz, the court considered whether bankruptcy proceedings tolled the 

statute of limitations found in Code of Civil Procedure section 337.5. There, a creditor 

was awarded a final judgment on July 8, 1991. (Kertesz, supra, 115 Cal.App.4th at p. 

371.) After entry of judgment, the defendant filed a petition for bankruptcy and that 

proceeding remained open for a period of 16 months. The creditor did not file an action 

to enforce the judgment until July 31, 2001—10 years and 24 days after the initial 

judgment. (Ibid.)

The appellate court, however, held that the 16-month period of the bankruptcy 

proceedings tolled the statute of limitations. (Kertesz, supra, 115 Cal.App.4th at p. 378.) 

The court reasoned that the Bankruptcy Act’s automatic stay precluded the creditor from 

filing a new action against the defendant during the pendency of his bankruptcy 

proceeding. (Id. at p. 376.) “[T]he import of section 362(a) is ‘that all legal actions 

being taken or to be taken against the debtor are halted. No new lawsuits can be 

commenced and ongoing proceedings are halted. The section is inclusive. Every 

proceeding of a judicial or quasi-judicial nature is affected.’” (Ibid.) Ultimately the court 

held that “because the commencement of [the creditor’s] new action on the judgment was 

stayed during the pendency of the automatic stay, the California statute of limitations was 

tolled during this period and appellants’ complaint is not time barred.” (Ibid.)
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Here, both appellant and respondent agree that the statute of limitations was 

tolled for 291 days between May 25, 2001 and March 11, 2002 during the original 

bankruptcy proceeding. However, even if this time is excluded from the statute of 

limitations, respondent’s May 2010 action is still untimely by 56 days. 

B. The Injunction Created by the Discharge of Appellant’s Debt in the 

Initial Bankruptcy Proceedings Tolled the Statute of Limitations Until 

the Debt was Deemed Nondischargeable

Appellant argues that the time period after the first discharge of debt, as well as 

the reopening of the bankruptcy case to determine dischargeability of the debt, should not 

be tolled because those periods did not fall under the automatic stay provision of section 

362(a). Appellant argues that only a “petition” can invoke the automatic stay provision 

in section 362(a). Although appellant’s contention may be true, his argument is not 

controlling here. Respondent does not dispute that the automatic stay terminated after the 

discharge of debt in March 11, 2002. Instead, respondent argues that Title 11 United 

States Code section 524(a)’s (hereafter section 524(a)) injunction pursuant to Code of 

Civil Procedure 356, like an automatic stay, also tolls the statute of limitations. We agree 

with respondent.

Although the discharge of a bankruptcy case extinguishes the tolling of the statute 

of limitations provided by the automatic stay provision in section 362(a), 11 United 

States Code section 108(c) (hereafter section 108(c)) allows for the extension of the 

statute of limitations in an alternative form. Section 108(c) states, in pertinent part, “if 

applicable nonbankruptcy law . . . fixes a period for commencing or continuing a civil 

action in a court other than a bankruptcy court on a claim against the debtor, . . . such 

period does not expire until the later of: (1) the end of such period, including any 

suspension of such period occurring on or after the commencement of the case; or (2) 30 

days after notice of the termination or expiration of the stay under section 362 . . . of this 

title . . . with respect to such claim.” (11 U.S.C. § 108(c).) Section 108(c)(1) does not 

itself provide for tolling of the statute of limitations, but merely incorporates any 

suspension of a deadline that is expressly provided in other nonbankruptcy federal or 
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state statutes. (In re Smith (B.A.P. 9th Cir. 2003) 293 B.R. 220, 225.) Such a suspension 

may result from either state or federal nonbankruptcy law. (See Rodgers v. Corrosion 

Prods., Inc., (5th Cir.1995) 42 F.3d 292, 297 [§ 108(c)(1) incorporates suspensions 

provided for under federal nonbankruptcy or state law]; Aslandis v. United States Lines 

(2d Cir. 1993) 7 F.3d 1067, 1073 [The reference to suspensions in §108(c)(1) 

“incorporates suspensions of deadlines that are expressly provided in other 

[nonbankruptcy] federal or states statutes.”]) Thus, section 108(c)(1) incorporates state 

law statutes of limitation and tolling provisions to extend the time a creditor has to seek 

relief against a debtor once the bankruptcy proceeding terminates.

Here, California’s Code of Civil Procedure section 356 provides a “nonbankruptcy 

law” that suspends the statute of limitations when an action is stayed by an injunction. 

The statute states, “When the commencement of an action is stayed by injunction or 

statutory prohibition, the time of the continuance of the injunction or prohibition is not 

part of the time limited for the commencement of the action.” (Code Civ. Proc., § 356.) 

The running of the statute is suspended during any period in which the plaintiff is legally 

restrained from taking action to protect his interest. (Eistrat v. Cecada (1958) 50 Cal.2d 

289, 291-292.) Moreover, “The suspension of a statute of limitations for a certain period 

is, in effect ‘time taken out,’ for that period and adds the same period of time to the 

limitation time provided in the statute.” (Schumacher, supra, 55 Cal.App.4th at p. 380.)

As stated elsewhere here, “A bankruptcy stay has been held to be a ‘statutory 

prohibition’ within the meaning of Code of Civil Procedure section 356.” (Schumacher, 

supra, 55 Cal.App.4th at p. 380; accord Wells, supra, 47 Cal.App.2d 634, 637-638.) In 

Wells, the court explained that the bankruptcy stay was within the meaning of a “statutory 

prohibition” and tolled the statute of limitations because “until the appellant could have 

lawfully commenced his suit in the state court to enforce his mechanic’s lien, he should 

not be charged with the lapse of statutory time within which to do so.” (Wells, supra, 47 

Cal.App.2d at p. 638.) The Wells court added that “the statute of limitations is deemed to 

run against a lienholder only while he may, with the exercise of due diligence, institute 

the proceeding of his own volition.” (Ibid.; original italics.) Moreover, in Kertesz, the 
9

court confirmed that the period of time of the automatic stay of a bankruptcy proceeding 

should not be counted as part of the limitation time pursuant to Code of Civil Procedure 

section 356. (Kertesz, supra, 115 Cal.App.4th at p. 378.) The Kertesz court found that 

the main import of the automatic stay provision of section 362(a) was that “all legal 

actions being taken or to be taken against the debtor are halted. No new lawsuits can be 

commenced and ongoing proceedings are halted. (Id. at p. 376.) 

Respondent contends section 524(a) created an injunction through the discharge of 

appellant’s debt on March 11, 2002 until the bankruptcy court’s determination that the 

appellant’s debt was not dischargeable on February 1, 2010. Therefore, that time should 

be excluded from the statute of limitations pursuant to Code of Civil Procedure section 

356 and section 108(c). We agree. 

Here, we adopt the court’s reasoning in both Kertesz and Wells regarding the 

tolling of the statute of limitations based on a bankruptcy stay pursuant to Code of Civil 

Procedure section 356, and we further apply this reasoning based on the effect of a 

discharge of debt in section 524(a). Section 524(a) states, “A discharge in a [bankruptcy 

case] operates as an injunction against the commencement or continuation of an action, 

the employment of process, or an act, to collect, recover or offset any such debt as a 

personal liability of the debtor, whether or not discharge of such debt is waived.” (11 

U.S.C. § 524(a).) Essentially, the discharge of a debt under section 524(a) is analogous 

to the form and function of the automatic stay provision in section 362(a). Based on this 

comparison, we are persuaded that 524(a) fits within either Code of Civil Procedure 

section 356’s description of an “injunction” or a “statutory prohibition.” 

First, section 524(a) provides clearer language than section 362(a) to fall under 

Code of Civil Procedure section 356’s description of “injunction” or a “statutory 

prohibition.” Section 362(a) provided that a petition “operates as a stay.” Similarly, 

section 524(a)(2) states a discharge “operates as an injunction.” Both provisions 

effectively preclude creditors from taking action either by the imposition of a stay or 

injunction. However, unlike section 362(a), section 524(a) expressly uses the word 

“injunction” which Code of Civil Procedure section 356 expressly authorizes as time that 
10

should toll the statute of limitations. Moreover, both provisions operate to halt the 

“commencement or continuation of an action” to “collect, recover, or offset any debt” 

against a debtor. (11 U.S.C §524(a)(2); see 11 U.S.C. §362(a)(1)). Here, both section 

524(a) and section 362(a) statutorily prohibit a creditor from commencing or continuing 

any action against a debtor to recover a debt. Therefore, 524(a) also falls under Code of 

Civil Procedure section 356’s description of a statutory prohibition. 

Second, section 524(a) achieves the same goal as section 362(a); therefore, based 

on the reasoning in Kertesz and Wells, the injunction created by section 524(a) should 

produce the same effect in tolling the statute of limitations. The Kertesz court and the 

Wells court provided two rationales to explain why a bankruptcy proceeding should toll 

the statute of limitations: (1) “All legal action being taken or to be taken against the 

debtor are halted . . . [and] no lawsuits can be commenced”; and (2) “a statute of 

limitations is deemed to run against a lienholder only while he may, with exercise of due 

diligence, institute the proceeding of his own volition.” (Kertesz, supra, 115 Cal.App.4th 

at p. 376; Wells, supra, 47 Cal.App.2d at p. 638; italics added and in original.) The effect 

of a discharge ruling under section 524(a) meets both of these rationales. 

In this case, after the discharge of debt on March 11, 2002, the injunction created 

by section 524(a) effectively prevented respondent from pursuing a new action to enforce 

the judgment. Indeed, first, on January 12, 2006, respondent tried to enforce the money 

judgment against appellant. Respondent’s action was brought within the time period of 

the statute of limitations at that time. However, appellant informed respondent that the 

debt was discharged and therefore, the injunction barred the commencement of the new 

action. Furthermore, respondent was unable to bring the action based on his own 

volition, which should have suspended the statute of limitations. In order for respondent 

to enforce his judgment against appellant, he first needed the bankruptcy court to 

determine that appellant’s debt, which was previously discharged, was not dischargeable. 

The viability of respondent’s new action depended on the bankruptcy court’s February 1, 

2010 determination regarding appellant’s debt. Therefore, for the same reasons Kertesz
11

and Wells determined that section 362(a) fell under Code of Civil Procedure section 356, 

we hold that section 524(a) falls under Code of Civil Procedure section 356 as well. 

In sum, the Kertesz court’s and Wells court’s reasoning in concluding that the 

automatic stay provision of section 362(a) tolled the statute of limitations extends to an 

injunction created by the discharge of appellant’s debt in section 524(a). Based on 

sections 362(a), 108(c), 524(a), Code of Civil Procedure section 356, as well as the 

relevant case law set forth above, we conclude that the injunction created by the 

discharge of debt on March 11, 2002, tolled the statute of limitations until the bankruptcy 

court’s determination that appellant’s debt was not dischargeable on February 1, 2010. 

Therefore the total time that the statute of limitations was tolled was seven years and 327 

days. In view of this conclusion, the trial court properly concluded that respondent’s 

action to enforce the judgment was timely filed.

DISPOSITION

The judgment is affirmed. Respondent is entitled to costs on appeal. 

WOODS, J.

We concur:

PERLUSS, P. J. SEGAL, J.*

________________________________________________________________________

*Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.