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 Civil 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. Plaintiff then brought this action to quiet title 

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 366.2
for failure to enforce the lien within one year of the judgment 

debtor’s death.1

We reverse. Section 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 Mansdorf Family Trust 

(hereafter “Mansdorf”), owned a parcel of property in Ventura 

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 January 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. 

(§ 697.310.)

Mansdorf died in August 2012. The trustee of his trust did 

not initiate the Probate 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 Line Holdings, LLC 

(County Line) submitted the winning bid 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 defendants, including McClanahan. 

1 All statutory references are to the Code of Civil Procedure 

unless otherwise stated.

2

 
The trial court rendered judgment in favor of County Line. The 

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.

Section 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 limitations 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 Cities 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 

distinguished 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 decedent 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”].)

3
County 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 ensuing judgment lien, an impossibility in most cases.

Nor is County Line assisted by section 686.020, 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 Mansdorf’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. (General Development Co., L.P. v. City of Santa Maria

(2012) 202 Cal.App.4th 1391, 1395.) The problem here, however, 

is that the Probate Code contains a creditor claims procedure for 

trusts similar to that applicable to estates. (See Prob. Code, 

§ 19000 et seq.) 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 Property is 

currently held in neither an estate nor a trust. Instead, County 

Line has title. The purpose of the Probate Code creditor claims 

procedure is to promote the expeditious administration of estates 

and trusts and to provide security of title for distributees. (See 

Embree v. Embree (2004) 125 Cal.App.4th 487, 495.) That policy 

4
applies 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 218 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 because 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 to file a timely claim in the debtor’s estate. Our Supreme 

Court reversed the resulting judgment.

Our Supreme Court stated that, while the debtor is still 

alive, the usual and ordinary method of enforcement of a 

judgment lien is by execution sale. (Corporation of America v. 

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

however, former Probate Code section 732, 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 duration2 unless 

2 Section 697.310, subdivision (b) provides: “Unless the 

money judgment is satisfied or the judgment lien is released, 

subject to Section 683.180 (renewal of judgment), a judgment lien 

5

 
sooner 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 

contention 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. 221.) 

The court stated heirs and distributees take subject to the lien. 

(Ibid.) “‘A judgment lien has always been regarded as the highest 

form of security.’” (Ibid.) A judgment lien creditor may, without 

filing a claim in probate, bring an equitable action 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 statutory 

duration of the judgment lien. (Id. at p. 220.)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 

judgment 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 recourse 

against other property in the estate. Section 366.2 of the Code of 

Civil Procedure does not apply to an action under this section.”

6

 
Thus, under Corporation of America, the judgment creditor 

has an option: file a timely claim in the estate probate 

proceeding 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 claims

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 Ross & Cohen, Cal. Practice Guide: 

Probate (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 and 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 action 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 make a distribution from an estate or trust to be 

brought within one year of the 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 

7
judgment 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 

claims procedure. Under the circumstances, Probate Code 

section 194004 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 section 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 under 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 support 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 at the 

4 Probate Code section 19400 provides: “Subject to Section 

366.2 of the Code of Civil Procedure, if there is no proceeding 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 

beneficiary 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 deceased 

settlor’s probate estate.”

8

 
time 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 

analysis, 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 

enforce 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 

statement that any judgment lien is effectively extinguished once 

the judgment debtor died is directly contradicted by our Supreme 

Court in Corporation of America v. Marks, supra, 10 Cal.2d at 

page 221. (See also Prob. Code, § 9391.)

The judgment is reversed. Costs are awarded to appellant.

CERTIFIED FOR PUBLICATION.

GILBERT, P. J.

We concur: 

YEGAN, J.

PERREN, J.

9
Henry J. Walsh, 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 

Appellant.

Antoni Albus, LLP, John Antoni, Kevin Tredway for 

Plaintiff and Respondent.

10