1

Filed 6/2/15 Harris v. Ottovich CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

DARRELL K. HARRIS,

Plaintiff and Respondent,

v.

HARVEY OTTOVICH,

Defendant and Appellant.

 A139146 & A139720

 (Alameda County

 Super. Ct. No. HG03112816)

DARRELL K. HARRIS,

Plaintiff and Respondent,

v.

HARVEY OTTOVICH et al.,

Defendants;

KAREN RAYL,

Third Party Claimant and Appellant.

 A139722

 (Alameda County

 Super. Ct. No. HG03112816)

DARRELL K. HARRIS,

Plaintiff and Respondent,

v.

MARK OTTOVICH,

Defendant and Appellant.

 A139723

 (Alameda County

 Super. Ct. No. HG03112816)
2

Darrell Harris obtained a money judgment against his former landlords, Harvey 

Ottovich and Mark Ottovich, for wrongful eviction.

1 To enforce that judgment, Harris

obtained a writ of execution, levied upon certain real property owned by Harvey, and 

obtained an order of sale. A third party took title to the property through a sheriff’s sale,

and a portion of Harris’s judgment was satisfied from the sale proceeds. In this 

consolidated appeal, Harvey, Mark, and their sister Karen Rayl (collectively appellants) 

challenge several postjudgment orders: an award of attorney fees to Harris for 

enforcement and collection work; denial of Harvey’s motion to stay the sale, set a 

minimum price, or appoint a receiver; and denial of Mark’s and Rayl’s motions regarding 

their asserted third party claims in the property. They also maintain that the trial judge 

should have been disqualified. We find no error and affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2003, Mark and Harvey sought to evict Harris from his rental unit at 37255

Mission Boulevard, Fremont, California (the Property). They filed a complaint for 

unlawful detainer and obtained a default judgment of possession against Harris. On 

August 28, 2003, the default judgment was set aside. Harris obtained an injunction 

requiring return of his personal property and an order awarding attorney fees.

Harris then sued Harvey and Mark for wrongful eviction in the instant action. In 

January 2005, Harris obtained a default judgment, which was ultimately set aside for 

improper service. The court ordered Harvey and Mark to file responsive pleadings. On 

September 1, 2005, Harris filed a first amended complaint against Harvey and Mark, 

which alleged nine different causes of action, including conversion, intentional infliction 

of emotional distress, and violations of Civil Code sections 789.3, subdivision (b), and

1942.5. Although the record indicates they were served with notice of trial, neither 

Harvey nor Mark attended the bench trial held before the Honorable Winifred Smith. On 

November 3, 2008, a judgment of $111,534 was entered against Harvey and Mark 

 

1 Because brothers Harvey and Mark Ottovich share the same last name, we 

hereafter refer to each of them by first name for purposes of clarity.
3

(November 2008 Judgment). Harris filed a motion for attorney fees, based on the fee 

shifting provisions of Civil Code sections 789.3 and 1942.5.

2 Neither brother opposed

the motion and, on February 4, 2009, the trial court awarded $20,000 in fees (February 

2009 Fee Order). 

On October 22, 2010, Harris obtained a writ of execution in the amount of 

$119,751.33—the amount of the November 2008 Judgment plus accrued interest (less a 

payment of $7,519.10). The writ of execution named both Mark and Harvey as judgment 

debtors. On March 7, 2011, a notice of levy was recorded on the Property by the 

Alameda County Sheriff. Although the deed does not appear in the record, it is 

undisputed that legal title to the Property was vested in Harvey alone.

On July 8, 2011, Judge Smith granted Harris’s application for an order allowing a 

sale of the Property (July 2011 Order of Sale). Judge Smith specifically determined in 

the order of sale that the Property was not subject to a homestead exemption and ordered 

that it be “sold in the manner provided in Code of Civil Procedure sections 701.510–

701.680.”3 Harvey and Mark filed a notice of appeal from the July 2011 Order of Sale 

(No. A132669), but the appeal was dismissed for failure to file an opening brief.

Meanwhile, on August 23, 2011, Harvey and Mark obtained an order vacating the 

fees award in the original unlawful detainer case. The Honorable Wynne Carvill

reasoned that Harris failed to give Harvey and Mark sufficient notice. Similarly, on 

December 11, 2013, they were also able to dissolve the injunction in the unlawful 

detainer case because of “procedural deficiencies in the way [it] was entered.”

 

2 Civil Code section 789.3, subdivision (d), provides in relevant part: “In any 

action under subdivision (c) the court shall award reasonable attorney’s fees to the 

prevailing party.” Civil Code section 1942.5, subdivision (g), provides: “In any action 

brought for damages for retaliatory eviction, the court shall award reasonable attorney’s 

fees to the prevailing party if either party requests attorney’s fees upon the initiation of 

the action.”

3 Undesignated statutory references are to the Code of Civil Procedure.
4

Harvey filed for bankruptcy in December 2011. Mark followed suit in 

February 2013. Harris was granted relief from the automatic stay (11 U.S.C. § 362) in 

Harvey’s bankruptcy case, permitting Harris to enforce his remedies against the Property.

The case was transferred to the Honorable Lawrence John Appel, who accepted a 

peremptory challenge (§ 170.6) filed against him by Harvey, concluding that it was 

timely. The presiding judge vacated that order, determining that the judgment debtors 

had already exhausted their one peremptory challenge when they successfully challenged

the Honorable John M. True in 2011. The case was returned to Judge Appel. 

An execution sale of the Property was finally set for May 1, 2013. Prior to the 

sale, on April 22, 2013, Harvey filed a motion to stay the sale, set a minimum price 

and/or appoint a receiver. Harvey argued that the sale “should be stayed until all motions 

and potential appeals can be heard without the judgment being executed which the 

defendants are seeking to set aside. Voiding prior judgments will eliminate any basis to 

collect the subject judgment . . . and eliminate any need to sell the [Property]. By the 

time of this ex parte application, [Harvey] will have filed a motion before Judge Carvill 

to clarify his August 23, 2011 Order, which essentially found that the July 18, 2003 

injunction was procured by not providing [Harvey with notice.]” In support of his

motion, Harvey submitted an appraisal from realtor Barry Ripp who estimated the value 

of the Property was between $725,000 and $750,000.

On the day before the scheduled sale, Judge Appel heard Harvey’s motion to stay. 

In the minute order denying the motion (April 30 Order Denying Stay), Judge Appel 

wrote: “[Harvey] has not sufficiently demonstrated that the motion that he states he ‘will 

have filed [by April 23, 2013] before Judge Carvill . . . bears any relationship to the [July 

2011 Order of Sale] that he seeks to stay. . . . [Harvey] merely argues (without providing 

any supporting facts, evidence or authority) that the ‘injunction’ in the other case ‘was 

the underpinning of the instant default judgment.’ . . . The judgment in this action was 

based on the nine causes of action . . . alleging, inter alia, violation of Civil Code 

§ 789.3(b), wrongful eviction, violation of Civil Code § 1942.5, breach of covenant of 

quiet enjoyment, and intentional infliction of emotional distress. Those causes of action 
5

do not appear to be based whatsoever on the injunction issued in [the original unlawful 

detainer case], much less to be based entirely on such injunction. [¶] Second, [Harvey] 

has already had numerous opportunities to seek to vacate or review the judgment in this 

case and the [July 2011 Order of Sale]. . . . The court does not find it appropriate to delay 

enforcement of the judgment or order of sale given [Harvey’s] multiple prior 

opportunities to obtain review of them.”

Mark and Rayl also served purported third party claims. Mark claimed an 

ownership interest in the Property worth $578,000 based on his investment of labor and 

materials for improvement and maintenance of the Property. Rayl claimed that she held a 

promissory note, in the principal amount of $450,000, that “was supposed to be secured 

by the [Property].” However, no deed of trust was referenced in her claim and appellants 

now concede that one was never recorded.

On May 1, 2013, Harris tendered two $10,000 checks as a deposit in lieu of 

undertaking in connection with the third party claims. On receipt of the third party 

claims, the sheriff determined the claims were invalid on their face and took no further 

action. On May 1, 2013, the Property was sold to a third party for $79,000.

After the sale, Mark and Rayl filed motions, in propria persona, claiming that 

Harris’s deposit was insufficient to allow the sheriff to proceed with the sale. Judge 

Appel denied a peremptory challenge filed by Rayl.4 Then, on July 9, 2013, Judge Appel 

denied both motions (July 9 Orders Regarding Undertakings). Judge Appel reasoned: 

“[Mark] . . . is a defendant in this action and is named in the judgment on which the writ 

of execution for the sale of the subject property was based. . . . ‘The third party claim 

procedures may not be utilized by parties to the action.’ (Ahart, [Cal. Practice Guide:

Enforcing Judgments and Debts (The Rutter Group 2014)] ¶ 6:1605 [p. 6H-2 (rev. #1, 

2010)]; see also Commercial & Farmers [Nat. Bk.] v. Hetrick (1976) 64 Cal.App.3d 158, 

165 . . . .)” With respect to Rayl’s claim, Judge Appel explained: “Rayl states that her 

 

4 Appellants also filed several unsuccessful motions to challenge Judge Appel for 

cause. Judge Appel filed verified answers and then struck the challenges. Judge Appel 

also declared Mark a vexatious litigant. (§ 391, subd. (b).)
6

[c]laim ‘was for a lien interest under . . . [s]ection 720.210’ . . . . That statute, however, 

allows a third person ‘claiming a security interest in or lien on . . . personal property’ 

levied under a writ of execution to make a third party claim. ( . . . § 720.210(a).) Rayl 

did not present a claim of a security interest or lien on ‘personal property’ but instead 

presented a claim as to real property being levied under a writ of execution. . . . Although 

[section] 720.110 allows a third party claim as to ‘real property . . . levied upon under a 

. . . writ of execution,’ such a claim must be as to ‘ownership or the right [of] possession 

of property . . . .’ ( . . . § 720.110(a).) Rayl did not present such a claim either.”

After continuing the matter for clarification from the bankruptcy court regarding 

whether the motion for fees violated the automatic stay, Judge Appel also granted, on 

July 15, 2013, Harris’s motion for an award of attorney fees for postjudgment collection 

activities (July 15 Fee Order). Judge Appel awarded $39,130 against both Harvey and 

Mark jointly and $8,685 against Harvey separately.

Harvey filed a timely notice of appeal from the April 30 Order Denying Stay 

(No. A139146) and the July 15 Fee Order (No. A139720). Rayl and Mark each filed a 

timely notice of appeal from their respective July 9 Orders Regarding Undertakings

(Nos. A139722, A139723). We consolidated the four appeals.5

II. DISCUSSION

On appeal, appellants argue that the trial court’s July 15 Fee Order must be 

reversed (1) because fees incurred for collection activities are not recoverable unless 

provided for by contract; or (2) because the trial court abused its discretion in failing to 

apportion fees. Appellants also contend that the trial court abused its discretion in 

denying Harvey’s motion to stay and refusing to set a minimum price or appoint a 

receiver. With respect to Mark’s and Rayl’s third party claims, appellants contend that 

 

5 After appellate briefing was partially complete, we received notice that Mark and 

Harvey had filed a notice of removal in federal court. We issued an order staying 

appellate proceedings during pendency of federal court proceedings. On November 13, 

2014, we lifted our stay after the United States District Court for the Northern District of 

California entered an order remanding the matter to state court.
7

Harris’s deposit of funds was insufficient to allow the sale to go forward. Finally, they 

contend that Judge Appel should have been disqualified.

Appellants concede that their arguments regarding the motion to stay and third 

party undertakings are now moot. They argue, however, that we should reach the merits 

because a recurrence of the controversy may occur between the parties, in light of the fact 

that a portion of the November 2008 Judgment remains unsatisfied. “ ‘[T]here are three 

discretionary exceptions to the rules regarding mootness: (1) when the case presents an

issue of broad public interest that is likely to recur [citation]; (2) when there may be a 

recurrence of the controversy between the parties [citation]; and (3) when a material 

question remains for the court’s determination [citation].’ ” (Malatka v. Helm (2010) 

188 Cal.App.4th 1074, 1088.) We will assume that appellants have established an 

exception. Nonetheless, we conclude that their arguments are wholly without merit.

A. Enforcement of Judgment by Real Property Levy

“Detailed statutory provisions govern the manner and extent to which civil 

judgments are enforceable. In 1982, following the recommendations of the California 

Law Revision Commission, the Enforcement of Judgments Law (EJL) was enacted. The 

EJL . . . is a comprehensive scheme governing the enforcement of all civil judgments in 

California.” (Imperial Bank v. Pim Electric, Inc. (1995) 33 Cal.App.4th 540, 546.) “The 

most common method of enforcing a money judgment is to levy on the judgment debtor’s 

property under a writ of execution.” (Ahart, Cal. Practice Guide: Enforcing Judgments 

and Debts, supra, ¶ 6:300, p. 6D-1 (rev. #1, 2014) (hereafter Ahart).) “A writ of 

execution is a court process directed to the levying officer (i.e., sheriff, marshal or 

constable) of the county where the levy is to be made . . . . The writ requires the levying 

officer to enforce the money judgment in the manner prescribed by law.” (Id. at ¶ 6:311, 

p. 6D-3 (rev. #1, 2014), citing § 699.520.)

However, “[a] judgment creditor must obtain a court order of sale after a noticed 

hearing before a judgment debtor’s real property dwelling may be sold at an execution 

sale. The main purpose of the hearing procedure is to determine whether the dwelling is 

subject to the homestead exemption, and to ensure that the debtor is paid the amount of 
8

the exemption if the property is sold.” (Ahart, supra, ¶ 6:756, pp. 6D-96 to 6D-97

(rev. #1, 2011), italics omitted.) “The court must determine at a hearing the amount of 

the ‘dwelling exemption’ and the fair market value of the property. [¶] Thereafter, the 

real property dwelling may not be sold at an execution sale unless the bid exceeds the 

amount needed to satisfy ‘all lines and encumbrances’ on the property plus the amount of 

the homestead exemption.” (Id. at ¶ 6:1014, p. 6E-62 (rev. #1, 2013), citing § 704.800, 

subd. (a).) “If the court finds the dwelling is not exempt, the order need only indicate that 

the dwelling be sold in the same manner as like nonexempt property.” (Ahart, at ¶ 6:785, 

p. 6D-105 (rev. #1, 2013), citing § 704.780, subd. (b) [“[i]f the court determines that the 

dwelling is not exempt, the court shall make an order for sale of the property in the 

manner provided in Article 6 (commencing with Section 701.510) of Chapter 3”].)

“The [EJL also] includes procedures for determining the claims of third persons, 

i.e., those other than the judgment debtor and creditor. (§ 720.010 et seq.) The purpose 

of third party claims is to give a quick and effectual remedy to third parties whose 

property has been levied upon by mistake. [Citation.] [¶] The third party claims 

procedure is available to a person claiming a superior ownership or possessory right in 

real property that is subjected to attachment or execution to satisfy a money obligation.” 

(Regency Outdoor Advertising, Inc. v. Carolina Lanes, Inc. (1995) 31 Cal.App.4th 1323, 

1329.) “A person making a third-party claim under this chapter shall file the claim with 

the levying officer, together with two copies of the claim, after levy on the property but 

before the levying officer does any of the following: [¶] (a) Sells the property. 

[¶] (b) Delivers possession of the property to the creditor. [¶] (c) Pays proceeds of 

collection to the creditor.” (§ 720.120.) If the third party does so and the judgment 

creditor does not timely file an undertaking, the levying officer must release the property. 

(§ 720.170, subd. (a).) “If the creditor files with the levying officer an undertaking . . . 

within the time allowed . . . [¶] . . . The levying officer shall execute the writ in the 

manner provided by law unless the third person files an undertaking to release the 

property . . . .” (§ 720.160, subd. (a)(1).) “[E]xecution sales are absolute and may not be 
9

set aside ‘for any reason’ unless the judgment creditor was the purchaser.” (Gonzalez v. 

Toews (2003) 111 Cal.App.4th 977, 981.)

B. Attorney Fees

Appellants contend that the trial court erred in awarding Harris attorney fees for 

postjudgment enforcement work. “California follows the ‘American rule,’ under which 

each party to a lawsuit ordinarily must pay his or her own attorney fees.” (Musaelian v. 

Adams (2009) 45 Cal.4th 512, 516.) However, attorney fees are allowed as costs to the 

prevailing party when authorized by contract, statute, or law. (§§ 1021, 1032,

subds. (a)(4) & (b), 1033.5, subd. (a)(10).) The trial court’s determination of the legal 

basis for an attorney fee award is a question of law we review de novo. (Globalist 

Internet Technologies, Inc. v. Reda (2008) 167 Cal.App.4th 1267, 1273.) We review the 

amount of the trial court’s award of attorney fees for abuse of discretion. (Connerly v. 

State Personnel Bd. (2006) 37 Cal.4th 1169, 1175.)

In awarding fees for Harris’s enforcement efforts, the trial court relied on 

section 685.040. That section provides: “The judgment creditor is entitled to the 

reasonable and necessary costs of enforcing a judgment. Attorney’s fees incurred in 

enforcing a judgment are not included in costs collectible under this title unless otherwise 

provided by law. Attorney’s fees incurred in enforcing a judgment are included as costs 

collectible under this title if the underlying judgment includes an award of attorney’s fees 

to the judgment creditor pursuant to subparagraph (A) of paragraph (10) of subdivision 

(a) of Section 1033.5.” (Italics added.) Section 1033.5, subdivision (a)(10)(A), provides 

that attorney fees may be awarded as costs when authorized “by contract.”

Appellants focus on the final sentence of section 685.040 and contend that 

postjudgment enforcement fees can only be recovered when provided for by contract. It 

is undisputed that Harris is not entitled to attorney fees pursuant to any contract. 
10

Appellants’ argument fails, however, because it is not supported by the plain language of 

the statute or any reported authority.

6

In fact, our Supreme Court has clearly rejected appellants’ position, explaining, 

“when a fee-shifting statute provides the substantive authority for an award of attorney 

fees, any such fees incurred in enforcement of the judgment are within the scope of 

section 685.040.” (Conservatorship of McQueen (2014) 59 Cal.4th 602, 614; accord, 

Ketchum v. Moses (2001) 24 Cal.4th 1122, 1141 & fn. 6 (Ketchum) [under § 685.040 “a 

litigant [is] entitled to costs for successfully enforcing a judgment . . . , but not attorney 

fees unless there is some other legal basis for such an award,” such as is provided by

§ 425.16, subd. (c)]; Lucky United Properties Investment, Inc. v. Lee (2010)

185 Cal.App.4th 125, 140, fn. 9 [“the fact that the fees were not awarded pursuant to a 

contract is apparently immaterial”]; Berti v. Santa Barbara Beach Properties (2006) 

145 Cal.App.4th 70, 77 (Berti) [“[the] argument ignores that the penultimate sentence of 

. . . section 685.040 authorizes postjudgment fees ‘provided by law’ ”].)

“The final sentence of . . . section 685.040 . . . is intended to solve a problem 

unique to a claim for postjudgment fees in actions based on contract. A judgment 

extinguishes all further contractual rights, including the contractual attorney fees clause. 

[Citation.] Thus in the absence of express statutory authorization, such as that contained 

in the final sentence of . . . section 685.040, postjudgment attorney fees cannot be 

recovered. Fees authorized by statute do not present the same problem. A judgment does 

not act as a merger and a bar to statutory fees. (Folsom v. Butte County Assn. of 

Governments [(1982)] 32 Cal.3d [668,] 677–678.) Such fees are incident to the 

judgment. (Ibid.) Thus there was no need to include statutory fees in the final sentence 

of . . . section 685.040.” (Berti, supra, 145 Cal.App.4th at p. 77.) If nothing in the feeshifting statute limits an award of fees to those incurred prior to the judgment, then 

postjudgment enforcement fees are otherwise provided by law. (Ibid.)

 

6 Appellants cite an unpublished opinion; however, as counsel surely knows, such 

authority may not be relied on or cited. (Cal. Rules of Court, rule 8.1115; People v. 

Wallace (2009) 176 Cal.App.4th 1088, 1105, fn. 9.)
11

Here, just as in Berti and Ketchum, Harris recovered his postjudgment

enforcement attorney fees under statutes that do not limit fee awards to those incurred 

before judgment. (Civ. Code, §§ 789.3, subd. (d), 1942.5, subd. (g).) Accordingly, the 

trial court did not err in awarding attorney fees in its July 15 Fee Order.

C. Apportionment of Fees

In the alternative, appellants argue that the trial court abused its discretion by 

failing to apportion fees. Their apportionment argument has two prongs. First, they 

contend that the trial court abused its discretion by failing to apportion fees relating to 

Harris’s nonstatutory causes of action. Specifically, they argue: “There [are] no legal 

grounds for awarding attorney fees other than those provided to the wrongful eviction 

causes of action . . . .” We agree with Harris that this argument was forfeited by not 

being presented to the trial court. (Ochoa v. Pacific Gas & Electric Co. (1998) 

61 Cal.App.4th 1480, 1488, fn. 3 [“arguments not asserted below are waived and will not 

be considered for the first time on appeal”]; Regency Outdoor Advertising, Inc. v. 

Carolina Lanes, Inc., supra, 31 Cal.App.4th at p. 1333.)

Although appellants frame their argument as a challenge to the postjudgment order 

awarding enforcement fees, it is actually an argument that should have been raised with 

respect to the February 2009 Fee Order made in connection with the underlying 

November 2008 Judgment. Appellants support their argument by asserting “the [t]rial 

[c]ourt’s initial award of punitive damages in the [November 2008 Judgment] shows that 

the bulk of the award came from non-statutory claims. . . . [¶] . . . At a minimum, twothirds of the attorney fees should be apportioned because only one-third of claims 

involved statutes giving rise to attorney fees.” Appellants cannot challenge the 

February 2009 Fee Order now. (Cal. Rules of Court, rule 8.104, subd. (a); § 904.1, 

subd. (a)(2); Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 239

[“ ‘ “[t]he law of this state does not allow, on an appeal from a judgment, a review of any 

decision or order from which an appeal might previously have been taken” ’ ”].)

Next, appellants argue that the trial court abused its discretion in awarding fees 

connected to the motion to declare Mark a vexatious litigant and Harris’s efforts to obtain 
12

relief from the automatic bankruptcy stay. They argue: “[T]he motion to have Mark . . . 

declared a vexatious litigant was punitive in nature and not in furtherance of trying to 

collect any judgment. . . . [T]here is no authority for the proposition that fees incurred in 

getting relief from the automatic stay are recoverable in state court postjudgment 

proceedings.” Fees incurred in connection with the vexatious litigant motion were 

specifically excluded from the award, and appellants’ position on bankruptcy fees is 

unsupported. (See Chinese Yellow Pages Co. v. Chinese Overseas Marketing Services 

Corp. (2008) 170 Cal.App.4th 868, 870 [“section 685.040 can extend to reasonable and 

necessary attorney fees and costs incurred in postjudgment bankruptcy proceedings”]; 

Globalist Internet Technologies, Inc. v. Reda, supra, 167 Cal.App.4th at pp. 1269–1270 

[fees incurred in defending separate action to enforce alleged agreement to settle 

judgment debt at substantial reduction were recoverable under § 685.040]; Jaffe v. Pacelli 

(2008) 165 Cal.App.4th 927, 929–930 (Jaffe) [§ 685.040 entitles a party to postjudgment

fee award for efforts in combating bankruptcy proceedings].)7

Appellants claim that they should be immune from reimbursing such fees because 

it was Harris’s “unilateral choice” to seek relief from the automatic stay. The Jaffe court 

rejected a similar argument. “[T]he entire purpose of [the judgment debtor’s (Debtor)] 

bankruptcy filing, and her related appeals, was to avoid paying the judgment which [the 

judgment creditor (Creditor)] sought to enforce. [Debtor] sought to sabotage [Creditor’s]

collection efforts. [Creditor] filed the adversary proceeding seeking a determination that 

[Debtor] was not entitled to have her debts discharged in bankruptcy. Had [Debtor] been 

successful in the bankruptcy proceedings, the judgment in the superior court would have 

been extinguished and unenforceable by the bankruptcy court’s discharge order. 

[Citation.] [Creditor’s] preventive measures were directly related to the continued 

 

7 Appellants correctly point out that these cases involved underlying contractual 

fee provisions. (Chinese Yellow Pages Co. v. Chinese Overseas Marketing Services 

Corp., supra, 170 Cal.App.4th at p. 871; Globalist Internet Technologies, Inc. v. Reda, 

supra, 167 Cal.App.4th at p. 1270; Jaffe, supra, 165 Cal.App.4th at p. 930.) However, 

nothing in the authority suggests this fact is dispositive.
13

enforceability of the superior court’s judgment . . . . [His] actions in the bankruptcy

proceedings were necessary in order to maintain, preserve, and protect the enforceability 

of the judgment. [Creditor] successfully blocked [Debtor’s] efforts to have the debt 

discharged by the bankruptcy court and [he] protected the judgment. [Creditor’s] actions 

in the bankruptcy proceedings are enforcement proceedings pursuant to section 685.040.” 

(Jaffe, supra, 165 Cal.App.4th at p. 938.)

The trial court did not abuse its discretion in including attorney fees incurred by 

Harris in Harvey’s bankruptcy proceeding.

D. Motion to Stay, Set Minimum Price, or Appoint Receiver

Appellants contend the trial court erred in denying Harvey’s motion to stay or 

appoint a receiver because the April 30 Order Denying Stay is silent regarding Harvey’s 

interests. “In addition to sheriffs’ sales, sales of property to enforce money judgments 

may also be performed by receivers.” (Wells Fargo Leasing, Inc. v. D & M Cabinets 

(2009) 177 Cal.App.4th 59, 70.) Section 699.070, subdivision (a), provides the trial court 

with discretion to appoint a receiver “or order the levying officer to take any action . . . if 

the court determines that the property is perishable or will greatly deteriorate or greatly 

depreciate in value or that for some other reason the interests of the parties will be best 

served by the order.”8 (Italics added.) However, appellants have shown no affirmative 

evidence that the trial court failed to exercise its discretion. We will not presume as 

much. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [“ ‘[j]udgment or order of 

the lower court is presumed correct . . . and error must be affirmatively shown’ ”].)

Appellants argue the interests of justice necessitated appointment of a receiver or 

setting of a minimum price because if the court had done so, the Property “could have 

been sold [at] a price in line with [its] value, which would have paid off the judgment in 

full and which would have allowed the judgment debtors to have the benefit of their 

 

8 Section 708.620 states, “The court may appoint a receiver to enforce the 

judgment where the judgment creditor shows that, considering the interests of both the 

judgment creditor and the judgment debtor, the appointment of a receiver is a reasonable 

method to obtain the fair and orderly satisfaction of the judgment.”
14

equity.” Essentially, they contend that a minimum price had to be set because otherwise 

Harvey would be left without a remedy for the sale of the Property at an inadequate price. 

We disagree.

To the extent appellants are arguing that section 704.800 required a minimum 

price to be established, appellants have forfeited that argument by failing to raise it on 

appeal from the July 2011 Order of Sale. Section 704.800, subdivision (b), provides: “If 

no bid is received at the sale of a homestead pursuant to a court order for sale that is 90 

percent or more of the fair market value . . . , the homestead shall not be sold” except in 

certain exceptions. However, in the July 2011 Order of Sale, Judge Smith determined 

that the Property was not subject to a homestead exemption. The July 2011 Order of Sale 

is long since final. (Cal. Rules of Court, rule 8.104(a); § 904.1, subd. (a)(2); Sole Energy 

Co. v. Petrominerals Corp., supra, 128 Cal.App.4th at p. 239.)

Section 701.620, subdivision (a) applies and automatically provides for a 

minimum bid of the following amounts: “(1) The amount of all preferred labor claims 

that are required by Section 1206 to be satisfied from the proceeds. [¶] (2) The amount of 

any state tax lien . . . that is superior to the judgment creditor’s lien. [¶] (3) If the 

purchaser is not the judgment creditor, the amount of any deposit made pursuant to 

Section 720.260 . . . .” Accordingly, “[m]ost sales have no minimum bid because the 

judgment debtor’s property is rarely subject to preferred wage claims or tax liens.” 

(Ahart, supra, ¶ 6:690, p. 6D-82 (rev. #1, 2002).)

Nonetheless, the EJL provides numerous provisions “designed to preserve the 

debtor’s rights in his or her property, not to diminish them.” (Grothe v. Cortlandt Corp.

(1992) 11 Cal.App.4th 1313, 1323.) For instance, in section 701.545, that “[n]otice of 

sale of an interest in real property . . . may not be given pursuant to Section 701.540 until 

the expiration of 120 days after the date notice of levy on the interest in real property was 

served on the judgment debtor.” “[T]he legislative history states that the provision is 

designed to give the judgment debtor ‘time to redeem the property from the judgment 

creditor’s lien before the sale, to sell the property, or to seek the attendance of other 

potential purchasers at the judicial sale.” (Grothe, at p. 1323.) Appellants failed to take 
15

advantage of the two-year period that elapsed between service of the notice of levy and 

the sale. The trial court followed the dictates of the EJL. We cannot say it abused its 

discretion.

Appellants also contend that the trial court abused its discretion by not staying the 

sale under section 918.5. Section 918.5, subdivision (a), provides: “The trial court may, 

in its discretion, stay the enforcement of a judgment or order if the judgment debtor has 

another action pending on a disputed claim against the judgment creditor.” (Italics 

added.) However, Harvey presented no evidence that he, in fact, had another action 

pending against Harris at the time.9 Appellants make a related argument that because 

they were successful in setting aside the injunction and fee order from the original 

unlawful detainer action that the November 2008 Judgment in the instant action was and 

is somehow in doubt. But the November 2008 Judgment has not been set aside and is 

now long since final. The trial court did not abuse its discretion.

E. Third Party Claims

Next, appellants argue the trial court erred in denying both Mark’s and Rayl’s 

motions because the trial court misapplied the undertaking requirements of the EJL. 

Specifically, with respect to Mark’s claim, appellants argue that Harris was required to 

post a bond, rather than make a deposit of funds. (See § 720.160, subd. (a) [levying 

officer shall execute the writ “[i]f the creditor files with the levying officer an 

undertaking . . . within the time allowed under [§ 720.140, subd. (b)]”].) With respect to 

Rayl’s claim, appellants argue that Harris was required to either post a bond or make a 

deposit of funds in the full amount of her claim—$450,000. (See § 720.260, subd. (a) 

 

9 Mark sued Harris on April 13, 2012, for malicious prosecution and abuse of 

process. Harvey joined that action, but not until September 11, 2013—well after the 

motion to stay was denied. On January 21, 2014, the suit was dismissed without

prejudice. Harris asked us to take judicial notice of the first amended complaint filed by 

Mark and Harvey against Harris and the order dismissing that complaint. We previously 

deferred ruling on the unopposed request, but now grant it. (Evid. Code, §§ 452, subd. 

(d)(1), 459, subd. (a) [“reviewing court may take judicial notice of any matter specified in 

[§] 452”].)
16

[levying officer shall execute the writ “[i]f the creditor . . . either files with the levying 

officer an undertaking . . . or makes a deposit with the levying officer of the amount 

claimed under [§] 720.230”].)

We need not resolve whether the undertaking was sufficient because Mark’s and 

Rayl’s third party claims were facially invalid. Mark is not a third party. He is a 

judgment debtor. “There is no statutory authorization for the use of third party claim 

procedures by named defendants in an action.” (Commercial & Farmers Nat. Bk. v. 

Hetrick, supra, 64 Cal.App.3d at p. 165 [construing similar provision of former law]; see 

also Regency Outdoor Advertising, Inc. v. Carolina Lanes, Inc., supra, 31 Cal.App.4th at 

p. 1329 [“[EJL] includes procedures for determining the claims of third persons, i.e., 

those other than the judgment debtor and creditor”]; § 720.020 [“ ‘[c]reditor’ means the 

judgment creditor]; § 720.030 [“ ‘[d]ebtor’ means the judgment debtor”].)

Rayl’s third party claim was likewise invalid because, without a deed of trust 

securing the promissory note, she had no ownership interest in the Property.10 (See 

Bartold v. Glendale Federal Bank (2000) 81 Cal.App.4th 816, 821 [“[t]he borrower 

(trustor) executes a promissory note and deed of trust, thereby transferring an interest in 

the property to the lender (beneficiary) as security for repayment of the loan”]; 720.110, 

subd. (a) [“[a] third person claiming ownership or the right to possession of property may 

make a third-party claim under this chapter . . . [w]here real property has been levied 

upon under a writ of attachment or a writ of execution” (italics added)].)

F. Judicial Bias

Finally, appellants argue that Judge Appel should have been disqualified from 

hearing this matter. Harvey and Rayl assert that their appeals from other postjudgment 

orders encompass review of the denial of their motions to disqualify Judge Appel. The 

rulings on these motions are not properly before us. 

 

10 In their reply brief, appellants implicitly concede that Rayl’s interest was 

insufficient. 
17

Section 170.3, subdivision (d), provides: “The determination of the question of 

the disqualification of a judge is not an appealable order and may be reviewed only by a 

writ of mandate from the appropriate court of appeal sought only by the parties to the 

proceeding. The petition for the writ shall be filed and served within 10 days after 

service of written notice of entry of the court’s order determining the question of 

disqualification.” (Italics added.) “[T]his provision governs both for cause (§ 170.1) and 

peremptory (§ 170.6) challenges brought under the statutory scheme.” (People v. Brown 

(1993) 6 Cal.4th 322, 333 (Brown), citing People v. Hull (1991) 1 Cal.4th 266, 272–273.) 

And it “creates an exception to the general rule that interlocutory rulings are reviewable 

on appeal from a final judgment.” (Brown, at p. 333.) Thus, “a petition for writ of 

mandate is the exclusive method of obtaining review of a denial of a judicial 

disqualification motion.” (People v. Mayfield (1997) 14 Cal.4th 668, 811.) Here, 

however, it is undisputed that appellants did not seek writ relief.

Our Supreme Court has observed that, “notwithstanding the exclusive-remedy 

provision of . . . section 170.3, ‘[one] may assert on appeal a claim of denial of the due 

process right to an impartial judge.’ ” (People v. Panah (2005) 35 Cal.4th 395, 445, 

fn. 16; accord, Brown, supra, 6 Cal.4th at pp. 327, 334–335.) However, it has also said 

that, “[i]n order to give maximum effect to the Legislature’s clear intent that 

disqualification challenges be subject to prompt review by writ [citation], we conclude 

that a litigant may, and should, seek to resolve such issues by statutory means, and that 

his negligent failure to do so may constitute a forfeiture of his constitutional claim.” 

(Brown, at p. 336.)11 “[I]n civil cases, a constitutional question must be raised at the 

earliest opportunity or it will be considered to be waived.” (Roth v. Parker (1997) 

57 Cal.App.4th 542, 548.)

 

11 In Brown, the defendant did not forfeit his right to appeal on the basis of a 

constitutional due process claim because he sought writ relief, as required by

section 170.3, subdivision (d), which was summarily denied. (Brown, supra, 6 Cal.4th at 

p. 336.)
18

Although appellants label their claim in due process terms, they substantively 

argue that the trial court did not comply with the statute. They contend that Judge Appel, 

in initially accepting Harvey’s section 170.6 challenge, made a determination that he was 

“actual[ly] bias[ed]” and that the presiding judge’s order returning him to this matter 

violated section 170.3, subdivision (a)(1). Section 170.3, subdivision (a)(1), states that, 

upon recusal, the recused judge “shall not further participate in the proceeding, except as 

provided in Section 170.4, unless his or her disqualification is waived by the parties as 

provided in subdivision (b).” Appellants forfeited this statutory claim by failing to seek 

writ review. (People v. Freeman (2010) 47 Cal.4th 993, 1000.)

Even if the argument was properly before us, we would not agree with appellants’ 

characterization of the record. Judge Appel was not disqualified, and he made no finding 

of bias. Rather, Judge Appel merely concluded that the initial section 170.6 motion to 

disqualify him was timely. “Section 170.6 permits a party to obtain the disqualification 

of a judge for prejudice, based solely upon a sworn statement, without being required to 

establish prejudice as a matter of fact to the satisfaction of the court. [Citations.] When a 

party timely files, in proper form, a motion to disqualify a judge based upon this 

provision, the trial court is bound to accept the disqualification without further inquiry.” 

(The Home Ins. Co. v. Superior Court (2005) 34 Cal.4th 1025, 1032.) The case was 

reassigned to Judge Appel when the presiding judge determined that appellants had 

already made a peremptory motion to disqualify Judge True.12 Thereafter, the trial court 

also properly denied Rayl’s additional peremptory challenge. “[O]nly one motion may 

be made for each side in any one action or special proceeding. (§ 170.6, subd. (a)(4).) . . . 

Importantly, these limitations apply even to third parties who are brought into an action 

or special proceeding after a challenge has been made or a factual issue has been 

 

12 In their reply brief, appellants assert that the challenge to Judge True “was not a 

peremptory challenge.” We need not address this argument because it was raised for the 

first time in their reply brief. (Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 

747, 761, fn. 4.)
19

determined.” (National Financial Lending, LLC v. Superior Court (2013) 

222 Cal.App.4th 262, 270.) Appellants have shown no error.

III. DISPOSITION

The challenged orders are affirmed. Harris shall recover his costs on appeal.

_________________________

BRUINIERS, J.

WE CONCUR:

_________________________

JONES, P. J.

_________________________

SIMONS, J.