Filed 5/2/18 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

COUNTY LINE HOLDINGS, LLC,

Plaintiff and Respondent,

v.

JANICE M. McCLANAHAN,

Defendant and Appellant. 2d Civi l No. B278790 (Super. Ct. No. 56

- 2013

- 00444799

- CU

- OR

- VTA) (Ventura County)

A cause of action survives one year after the death of a debtor. But not a judgment lien. Judgment liens have longevity. A judgment debtor dies. A contest over the priority of two judgment liens ensues

. Both liens were established prior to the judgment debtor’s death. After the judgment debtor died, plaintiff purchased one judgment lien at the execution sale of the junior lien. P laintiff then brought this action to quiet t itle against defendant’s senior lien. The trial court gave judgment to plaintiff. The court concluded that enforcement of defendant’s
senior lien was barred by Code of Civil Procedure section 366.2for failure to enforce the lien within one year of the j udgment
debtor’s death. 1
We reverse

. S ection 366.2 limits the time to bring a cause of action, not the time to enforce a judgment.
FACTS
Harold Mansdorf

, as trustee for the Ma nsdorf Family Trust (hereafter “ Mansdorf ” )

, owned a parcel of property in Ve ntura County near the Pacific Coast Highway. The parties refer to the parcel as the “Malibu Property.” In January 2008, Janice M. McClanahan obtained a $12 million judgment against Mansdorf. McClanahan recorded an abstract of judgment in May 2008.
In J anuary 2012, John Torjisen obtained a $2 million judgment against Mansdorf. Torjisen recorded an abstract of judgment in April 2012. The recordation of an abstract of judgment places a judgment lien against all real property of the judgment debtor. (§ 6 97.310.) Mansdorf died in August 2012. The trustee of his trust did
not initiate the Pro bate Code claims procedure. ( Prob. Code, § 19000 et seq.)
In April 2013, Torjisen enforced his judgment lien on the
Malibu Properly by sheriff’s sale. County Lin e Holdings, LLC (Count y Line) submitted the winning bi d of $500,000 and
received the sheriff’s deed. In November 2013, County Line brought the instant action to quiet title to the Malibu Property free and clear of any lien or claim by a number of named de fendants, including McClanahan.

1 All statutory references are to the Code of Civil Procedure unless otherwise stated.

2The trial court rendered judgment in favor of County Line. T he
court found that McClanahan’s judgment lien was extinguished by Mansdorf’s death and could only have been revived by filing a claim against Mansdorf’s trust. The court concluded that because McClanahan had not filed such a claim within one year, enforcement of her judgment lien is barred under section 366.2

. DISCUSSION
I McClanahan argues section 366.2 does not apply to the enforcement of her judgment lien.
S ection 366.2, subdivision (a) provides: “ If a person against whom an action may be brought on a liability of the person, whether arising in contract, tort, or otherwise, and whether accrued or not accrued, dies before the expiration of the applicable limi tations period, and the cause of action survives, an action may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply. ” Section 366.2, subdivision (a)

, by its terms

, limits the time for bringing a “cause of action .” Execution on a judgment lien is

not a cause of action. ( Bay Cit i es Paving & Grading, Inc. v. Lawyers ’ Mutual Ins. Co. (1993) 5 Cal.4th 854, 860 [cause of action arises from breach of a “primary right” and is distinguish ed from “remedy” or “relief”].) Issues relating to a primary right had long passed away, allowing for the birth of a judgment lien with a long life. Section 366.2 does not apply. ( Estate of Bennett (2008) 163 Cal.App.4th 1303, 1310 [“The claim against d ecedent had been reduced to a judgment before he died, thereby rendering the statute of limitations on a ‘cause of action’ where the ‘person against whom [the] action may be brought

. . . dies’ (Code Civ. Proc. § 366.2, subd. (a)) inapplicable”].)

3County Line’s argument that section 366.2 applies to execution on a judgment lien leads to an absurd result. A plaintiff who had not brought an action prior to a defendant’s death would have one year to both file an action and execute on
the ensu ing judgment lie n, an impossibility in most cases. Nor is County Line assisted by section 686.0 20, which states: “After the death of the judgment debtor, enforcement of a judgment against property in the judgment debtor’s estate is governed by the Probate Code, and not by this title.” “[T]his title” refers to the Enforcement of Judgments Law (EJL). ( § 680.010 et seq.) Section 686.020 refers to enforcement of a judgment against “property in the judgment debtor’s estate.” Here the Malibu Property was subject to Mansdor f’s living trust and thus was not in the judgment debtor’s estate. McClanahan points out that to construe section 686.020 as applying to trusts we must add language to the statute. Ordinarily we are loathe to construe a statute by adding language

. ( Gene ral Development C o., L.P. v. City of Santa Maria (2012) 202 Cal.A pp.4th 1391, 1395.) The problem here, however, is that the Probate Code contains a creditor claims procedure for
trusts similar to th at applicable to estates. (See Prob. Code, § 19000 et se q.) If section 686.020 does not include trusts, McClanahan suggests no circumstances in which the probate procedure for creditor claims against living trusts would apply. There is no problem here . The Malibu P roperty is currently held in neither an esta te nor a trust. Instead, County Line has title. The pu rpose of the Probate C ode creditor claims procedure is to promote the expeditious administration of estates and trusts and to provide security of title for distribute e s. (See
Embree v. Embree (2004) 125 Cal.App.4th 487, 495 .) That policy

4applies where the contest is between a creditor and an estate or a trust beneficiary. The policy does not apply where, as here, the contest is between two judgment lien claimants. In any event, even if the Probate Code applies, County Line would not be helped. Although the Probate Code’s creditor claims procedure for trusts differs somewhat from that for estates, our Supreme Court’s discussion of judgment liens in Corporation of
America v. Marks (1937) 10 Cal.2d 21 8 is instructive. Judgment
liens survive.
In Corporation of America v. Marks

, supra , 10 Cal.2d 218, creditor obtained judgment liens against debtor’s property while
debtor was alive. When debtor died, creditor failed to file a claim
in debtor’s estate b ecause it did not know that debtor had died. After the period for filing a claim in debtor’s estate had passed, creditor filed an action to foreclose the judgment liens. The trial court sustained the debtor’s demurrer on the ground that creditor
failed t o file a timely claim in the debtor’s estate. Our Supreme Court reversed the resulting judgment.
Our S upreme Court stated that

, while the debtor is still
alive

, the usual and ordinary method of enforcement of a judgment lien is by execution sale. ( Corpo ration of America v.
Marks

, supra , 10 Cal.2d at p. 220.) On death of the debtor

, however , former Probate Code section 7 32, now section 9300, terminates the right of the creditor to enforce the judgment lien by execution and sale. ( Corporation of America

, at p. 220

. ) “But
the death of the debtor does not terminate the judgment lien .” ( Ibid. ) The lien continues for its statutory duration 2 unless

2 Section 697.310, subdivision (b) provides: “ Unless the money judgment is satisfi ed or the judgment lien is released, subject to Section 683.180 (renewal of judgment), a judgment lien

5sooner terminated by satisfaction or discharge. ( Ibid. ) “The judgment lien creditor

. . . may file a claim

, and in such event the priority of his lien will be protected in the administration proceeding .

. . and he will have a claim for any deficiency against the general estate of the decedent.” ( Ibid. ) Our Supreme Court expressly rejected the debtor’s

content ion that enforcement of the judgment lien in the course of estate administration is the exclusive remedy of the judgment lien creditor on the death of the debtor prior to levy of execution. ( Corporation of America v. Marks

, supra , 10 Cal.2d at p. 22 1 .)
T he court stated heirs and distribute e s take subject to the lien

. ( Ibid. ) “‘ A judgment lien has always been regarded as th e highest form of security. ’ ” ( I bid. ) A judgment lien creditor may

, without filing a claim in probate

, bring an equitable actio n to foreclose the judgment lien , but he has no right to a deficiency . ( Ibid. ) The creditor may bring the action at any time during the statuto ry duration of the judgment lien . ( Id. at p. 22 0 .) 3

created under this section continues until 10 years from the date of entry of the judgment.”

3 Probate Code section 9391 now expressly authorizes a jud gment lien creditor to bring a separate action to foreclose a judgment lien during the lien’s statutory life without filing a claim. The statute provides in part: “[T] he holder of a mortgage or other lien on property in the decedent’s estate, including, but not limited to, a judgment lien, may commence an action to enforce the lien against the property that is subject to the lien, without first filing a claim as provided in this part, if in the complaint the holder of the lien expressly waives all recours e against other property in the estate. Section 366.2 of the Code of Civil Procedure does not apply to an action under this section.”

6Thus

, under Corporation of America , the j udgment creditor
has an option: f ile a timely claim in the estate probate

proce eding and seek a deficiency; or, without filing a claim

, bring an action to foreclose the lien during its statutory duration

, waiving any right to a deficiency. In neither case does the lien
lose its priority. Although the Probate Code provides for a creditor claim s procedure for trusts, the trustee is not required to use it. ( Wagner v. Wagner (2008) 162 Cal.App.4th 249, 255.) Where the trustee elects to use the claims procedure

, the rights of judgment
lien creditors should be no different than those set forth in Corporation of America

. Where, as here, the trustee elects not to use the creditor claims procedure, the trustee has waived the protection of the claims statutes. (See Ro ss & Cohen, C al. Practice Guide:
P robate (2017 Rutter Group) § 2:117

. 2a , p. 2

- 95.) Thus, the rights of the creditors are unaffected and the judgment lien creditor may proceed by execution and sale. In any event, the lien does not lose its priority. County Line’s an d the trial court’s reliance on Embree v.
Embree

, supra , 125 Cal.App.4th 487 is misplaced. In Embree

, plaintiff, decedent’s former wife, brought an action to enforce an alleged promise that decedent would create an annuity for her.
Plaintiff filed the ac tion more than one year after the decedent’s
death. The court concluded plaintiff’s action was barred by section 366.3, requiring an action to enforce a promise by
decedent to mak e a distribution from an estate or trust to be brought within one year of th e decedent’s death. Thus, in Embree , plaintiff’s action was barred for failure to file the action within the applicable limitations period. The holding in Embree does not concern the enforcement of a

7judgment lien or

, for that matter, any enforcement of a judgment. It appears Embree’s dicta led the trial court astray.
Embree ’s dicta discuss what would happen if plaintiff were trying to enforce an existing spousal support judgment

. The
court noted that the trustee did not initiate the Probate Code
claim s procedure. Under the circumstances, Probate Code
section 19400 4 permits an unsecured creditor to proceed against property distributed to the beneficiaries of the judgment debtor’s revocable living trust, subject to the one

- year limitations period
of sec tion 366.2. The court stated: “The property distributed to the beneficiaries of [decedent’s] revocable trust is not available to satisfy her support judgment because she failed to file her claim within one year of [decedent’s] death.” ( Embree v. Embree

, supra , 125 Cal.App.4th at p. 493.) The court then stated in a footnote: “To the extent [plaintiff’s] argument is predicated on the
existence u nder the EJL of a ‘judgment lien ’ against [decedent’s] real property created during his lifetime as a result of the recording of the abstract of judgment for spousal s upport payable in installments ( § 697.320, subd. (a)(1) ) , any such lien was effectively extinguished once [decedent] died. (See Prob. Code, § 9300 [‘Except [with respect to execution liens existing a t the

4 Probate Code section 19400 provides: “ Subject to Section 366.2 of the Code of Civil Procedure, if there is no proceed ing to administer the probate estate of the deceased settlor, and if the trustee does not file a proposed notice to creditors pursuant to Section 19003 and does not publish notice to creditors pursuant to Chapter 3 (commencing with Section 19040), then a b eneficiary of the trust to whom payment, delivery, or transfer of the deceased settlor’s property is made pursuant to the terms of the trust is personally liable, to the extent provided in Section 19402, for the unsecured claims of the creditors of the dec eased settlor’s probate estate. ”

8time of the decedent’s death] all money judgments against the
decedent .

. . are payable in the course of administration’ and are not enforceable under the EJL].) ” ( Id. at p. 495, fn. 10.) First, Embree appears to conclude, without discussion or

an alysis, that section 366.2 applies to the enforcement of existing judgments, a proposition we reject. Moreover, given that the
trustee in Embree did not initiate the claims procedure, it is not clear what the court meant when it said plaintiff could not

e nforce her support judgment because she failed to file her “claim” within one year. Second, Probate Code section 19400, stating that creditors are subject to section 366.2, applies by its terms to “unsecured claims,” not judgment liens. Finally, Embree’s discussion of judgment liens is not only dicta, it is the lowest form of dicta: footnote dicta. The court’s

state ment that any judgment lien is effectively extinguished once the judgment debtor died is directly contradicted by our Supreme
Court in Corpo ration of America v. Marks

, supra , 10 Cal.2d at page 221. (See also Prob. Code, § 9391.) The judgment is rever s ed. Costs are awarded to appellant.
CERTIFIED FOR PUBLICATION.

GILBERT, P. J.
We concur:

YEGAN, J.

PERREN, J.

9Henry J. Wals h, Judge

Superior Court County of Ventura

______________________________

Law Offices of Thomas P. Cacciatore, Thomas P. Cacciatore; Benedon & Serlin, LLP, Douglas G. Benedon, Gerald M. Serlin; Sottile Baltaxe, Timothy B. Sottile for Defendant and Appe llant. Antoni Albus, LLP, John Antoni, Kevin Tredway for Plaintiff and Respondent.

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