Court of Appeal:
Standing Recognized Although Formality of First Substituting-In As Successor Not Observed
By a MetNews Staff Writer
Div. Two of the Fourth District Court of Appeal held yesterday that the daughter of a deceased judgment creditor had standing to renew a judgment for a second 10-year period notwithstanding that she had not been judicially declared to be her mother’s successor in interest, explaining that her standing was based on being a “somebody.”
The opinion, which was not certified for publication, affirms an order by Riverside Superior Court Judge Chad W. Firetag denying a motion to vacate the renewal of a 2009 default judgment in favor of the decedent, Martha Clohecy, against Marlene Z. Robertson. The judgment, based on elder abuse, was renewed two days before the 10-year deadline by attorney Richard L. Boyer “as counsel for plaintiff, Martha Clohecy.”
Boyer, in reality, acted for Darcy Clohecy, a daughter of the decedent. The daughter had acted as guardian ad litem for her mother, who lacked mental competency, in the litigation against Robertson, the alleged owner of Cloverleaf Healthcare Center, where Martha Clohecy had been treated.
At the point when the renewal took place, the $342,924.24 judgment had swelled, with interest, to $685,198.24.
Martha Clohecy died intestate in 2012 and there were no probate proceedings.
Robertson argued that there had been no compliance with Code of Civil Procedure §377.31 which provides:
“On motion after the death of a person who commenced an action or proceeding, the court shall allow a pending action or proceeding that does not abate to be continued by the decedent’s personal representative or, if none, by the decedent’s successor in interest.”
The judgment debtor insisted that “no party before this Court has standing to enforce the judgment.”
Darcy Clohecy maintained that §377.31 only applies where a proceeding is “pending,” not where there is a judgment.
In yesterday’s unpublished opinion, Presiding Justice Manuel A. Ramirez declined to address the applicability of the code section, saying: “We need not decide whether Darcy was required to be formally substituted in before she could renew the judgment. Even assuming she was, Robertson has not shown prejudice. Robertson owes the money to somebody, and Darcy showed that she is at least one such somebody.”
Boyer had no authority to represent the decedent, Ramirez said, nor to represent the daughter in her erstwhile role as guardian ad item.
“Nevertheless,” he declared, “Boyer had the authority to file the application for renewal as attorney for Darcy in her own individual capacity.”
Robertson also protested that the daughter had not executed a declaration under penalty of perjury setting forth certain facts which, under §377.32, must be provided by a decedent’s successor in litigation. That doesn’t matter, Ramirez said, in light of a declaration executed by Darcy Clohecy in opposition to Robertson’s motion to vacate.
“Darcy provided all of the information that a person seeking to be substituted in would be required to provide,” Ramirez wrote. He added:
“Robertson can still argue, in opposition to any future efforts by Darcy to enforce the judgment, that Darcy must be substituted in and/or that Darcy is not Martha’s only successor in interest. Accordingly, the error, if any, was harmless and not reversible.”
Robertson raised the prospect that there are other potential claimants, undisclosed by Darcy Clohecy. She pointed to evidence that the decedent had three daughters, one of whom had executed a declaration in the case in 2008.An appellate brief filed for his client by Boyer sets forth:
“For the sake of simplification, Darcy Clohecy is the only successor to Martha Clohecy mentioned in this brief. Sister Kathleen Clohecy’s status is not germane to this Appeal.”
“This assurance raises more questions than it answers. Why the qualifier, ‘mentioned in this brief’? Are there other successors not mentioned in the brief? And why, according to Darcy, is Kathleen not a successor? Martha died without a will. Hence, all of her children should be successors….Darcy does not explain.”
Answers Not Needed
He went on to say:
“Nevertheless, we can resolve this appeal without having the answers to all of these questions. On this record, Darcy was at least one of Martha’s successors in interest. Robertson did owe the money to Martha, and she still owes it to Darcy (although perhaps also to Kathleen). Therefore, Darcy had standing to renew the judgment.”
The presiding justice said Firetag erred in not vacating the judgment in the name of the decedent and reissuing it in favor of Darcy Clohecy, but said that the error was harmless—then reflecting that it might actually be for the better, elaborating:
“Most important, the trial court’s error canceled out any possible prejudice to Robertson. If it had renewed the judgment in Darcy’s name, Robertson might indeed be exposed to multiple liability…. At this point, however, the trial court has determined only that Darcy is a successor in interest to the judgment; it has not determined whether there are any others. If and when someone takes steps to enforce the judgment, Robertson will be free to challenge his, her, their, or its standing to do so; she will be free to argue that no one should be allowed do so until there has been a proper formal substitution. We do not predetermine any of these issues.”
The case is Clohecy v. Robertson, E073927.
Copyright 2021, Metropolitan News Company