Filed 6/25/21 Lozada v. WVJP CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
CANDY LOZADA,
Plaintiff and Respondent,
v.
WVJP 2017-2, L.P., A162277
Defendant and Appellant.
(Sonoma County
Super. Ct. No. SCV267396)
Candy Lozada sought a preliminary injunction against WVJP 2017-2,
L.P. (WVJP) to restrain it from enforcing a levy on two properties after a
money judgment had been obtained against Lozada’s former husband.
Lozada argued that WVJP did not have any interest, right, or title to the
properties because she had previously been awarded sole ownership pursuant
to the dissolution judgment from her divorce. She acknowledged, however,
that her former husband’s name had never been removed on the title to the
properties. The trial court issued a preliminary injunction. On appeal,
WVJP contends that the trial court abused its discretion because Lozada
failed to satisfy her burden of establishing a sufficient likelihood of prevailing
on the merits of her claims. We agree and reverse.
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BACKGROUND
Lozada was married to her husband Salvador prior to 2008. They
owned one property in Santa Rosa as community property, and another
property in Windsor as joint tenants. Lozada subsequently petitioned for
dissolution of the marriage. Lozada was self-represented and her husband
did not participate in the divorce proceedings. In 2008, the judgment of
dissolution awarded both properties to Lozada as her sole separate property.
It further ordered that Lozada’s husband “shall cooperate in signing any and
all documents necessary to confirm the real property stated above to Wife as
her sole and separate property, including any quitclaim deeds or other
documentation.” Importantly, no such documentation was executed or
recorded following the dissolution judgment.
In 2013, a money judgment was obtained by Excel Realty Partners,
L.P. against Lozada’s former husband in the amount of $223,553.62. In 2014,
an abstract of the money judgment was recorded in the Sonoma County
Recorder’s Office. In June 2020, the money judgment was assigned to WVJP.
In October 2020, a writ of execution was issued for the money judgment and
accrued interest. In December 2020, a notice of levy was recorded for each
property.
In November 2020, Lozada sued Excel Realty Partners, L.P. and
amended the complaint shortly thereafter to name WVJP as a defendant.
The complaint asserts four causes of action: (1) injunctive relief for
temporary restraining order, preliminary injunction, and permanent
injunction; (2) declaratory relief; (3) quiet title; and (4) intentional infliction
of emotional distress. Each cause of action is premised on the allegation that
Lozada obtained sole ownership of the properties pursuant to the dissolution
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judgment, and thus the defendants have no interest, right, or title to the
properties.
Lozada then sought a preliminary injunction to enjoin WVJP from
enforcing the levy. She argued that she was entitled to the relief demanded
in the complaint because she had obtained sole ownership of the properties,
and that enforcement of the levy would cause irreparable harm because she
and her children live on the Windsor property and she uses the Santa Rosa
property for rental income. She also stated that her husband’s name was
never removed from the title because she had represented herself in the
divorce that was uncontested by her husband, had no knowledge of the
requirement to remove his name, and was unaware that she could proceed
with such removal by quitclaim deed. She had been informed of the money
judgment in 2013, but was unaware of any personal responsibility for
payment. When she received documents regarding the levy in 2020, she
informed counsel for WVJP of the dissolution judgment. Counsel responded
that the failure to sign and record a quitclaim deed evidenced a continued
ownership interest in the properties held by her former husband.
In December 2020, an interspousal transfer deed for both of the
properties was recorded in the Sonoma County Recorder’s Office. Each
stated: “This Grant Deed establishes sole and separate property of a spouse
pursuant to a divorce.”
In January 2021, the trial court granted the preliminary injunction. It
concluded that the scales tipped in Lozada’s favor based on the “extreme and
irreparable harm she will incur if the injunction is denied yet she ultimately
prevails on the merits of this action, including the forced sale of her
properties and the potential eviction of her and her children from their family
home.” Based on this showing of harm, the trial court found that Lozada
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“has shown a sufficient likelihood of prevailing on the merits to warrant the
preliminary injunction.” It reasoned that, while WVJP was “correct that
Judgment of Dissolution is not self-executing and requires further action,”
the court “retains jurisdiction to make further orders to effectuate the
judgment and confirm the separate property awards.”
DISCUSSION
In deciding whether to issue a preliminary injunction, the trial court
weighs two interrelated factors: (1) the likelihood that the party seeking
relief will prevail on the merits; and (2) the relative interim harm to the
parties if the preliminary injunction is granted or denied. (Hunt v. Superior
Court (1999) 21 Cal.4th 984, 999.) This determination “reflects nothing more
than the superior court’s evaluation of the controversy on the record before it
at the time of its ruling; it is not an adjudication of the ultimate merits of the
dispute.” (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1109.)
The potential-merit and interim-harm factors are viewed on a sliding
scale: the greater the plaintiff’s showing on one factor, the less must be
shown on the other. (Butt v. State of California (1992) 4 Cal.4th 668, 678.)
A trial court, however, “may not grant a preliminary injunction, regardless of
the balance of interim harm, unless there is some possibility that the plaintiff
would ultimately prevail on the merits of the claim.” (Ibid.) Plaintiff bears
the burden to establish that these factors have been met. (Winter v. Natural
Resources Defense Council, Inc. (2008) 555 U.S. 7, 20.)
“The appellate standard for reviewing preliminary injunctions is well
established.” (Hunt v. Superior Court, supra, 21 Cal.4th 984 at p. 999.) In
general, the decision to issue a preliminary injunction rests in the sound
discretion of the trial court and is not disturbed absent an abuse of discretion.
(Ibid.) We do not reweigh conflicting evidence, but instead defer to the trial
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court’s factual findings if they are supported by substantial evidence. (City of
Corona v. AMG Outdoor Advertising, Inc. (2016) 244 Cal.App.4th 291, 298–
299.) “To the extent the plaintiff’s likelihood of prevailing on the merits turns
on legal rather than factual questions, however, our review is de novo.”
(Ibid.)
Here, WVJP does not challenge the trial court’s determination on the
interim-harm factor. Instead, it argues that the trial court abused its
discretion because Lozada failed to meet her burden on the potential-merits
factor. Lozada’s claims for injunctive and declaratory relief, quiet title, and
intentional infliction of emotional distress are all premised on the allegation
that she obtained sole ownership of the properties pursuant to the dissolution
judgment entered in 2008. WVJP contends that this allegation is fatally
flawed because entry of the dissolution judgment did not, on its own, convey
title to her and extinguish her former husband’s ownership or interest in the
properties.
We agree. As the trial court acknowledged, the dissolution judgment
was not “self-executing” and required further action to remove her husband’s
name from the title. (See Buic v. Buic (1992) 5 Cal.App.4th 1600, 1604
[explaining that after a dissolution judgment was entered awarding real
property to the husband as his separate property, record title remained in the
wife’s name and allowed her to convey the property, or at least her interest in
the property].) A dissolution judgment that awards real property as sole and
separate property to one spouse may be effectuated by deed, or by recordation
of the dissolution judgment itself. “When the judgment awards real property
by legal description, a certified copy can be recorded in the county where the
property is located; such recordation operates to convey title when the
judgment becomes final.” (Hogoboom & King, Cal. Practice Guide: Family
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Law (The Rutter Group 2021) ¶ 15:266, italics added.) While recordation of a
dissolution judgment awarding real property by legal description “dispenses
with the need for a grant deed and can be useful where the obligor party is
not cooperative, counsel should insist upon execution of the necessary
documents of title, and the judgment should contain a provision ordering
same.” (Ibid.) Here, the unrecorded dissolution judgment provided that
Lozada’s husband “shall cooperate in signing any and all documents
necessary to confirm the real property stated above to Wife as her sole and
separate property, including any quitclaim deeds or other documentation.”
Despite this provision, no such documentation was executed or recorded until
2020—12 years after the entry of the dissolution judgment and, more
importantly, six years after the judgment liens were created by recording an
abstract of the money judgment. Lozada does not argue that these recent
interspousal transfer deeds somehow defeat the preexisting judgment liens.
We thus conclude that Lozada failed to meet her burden to establish some
possibility that she will prevail on the merits based on the unrecorded
dissolution judgment. (Butt v. State of California, supra, 4 Cal.4th at p. 678.)
We similarly conclude that Lozada has not satisfied her burden by
reference to the trial court’s retention of jurisdiction after the dissolution
judgment. “To the extent that a judgment of dissolution is not self-executing
in respect of any division of property therein ordered, the court retains
jurisdiction to make such further orders as are appropriate to compel
obedience to its judgment.” (Bonner v. Superior Court (1976) 63 Cal.App.3d
156, 165.) In Bonner, an interlocutory judgment of dissolution was rendered
that awarded real property to the wife and ordered her to pay $5,000 to her
husband for his interest in that property. (Id. at p. 159.) Bonner concluded
that the trial court retained the power to order a sale of the property when
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the wife refused to pay the $5,000 awarded to the husband, in order to carry
out its equal division of the community property. (Id. at p. 167.) Here, there
is no need for the trial court to “compel obedience” from either Lozada or her
former husband because the interspousal transfer deeds have been recorded.
(Id. at p. 165.) Moreover, Lozada does not present any argument or authority
for the proposition that a trial court could issue some further order (for
example, making the interspousal transfer deeds retroactive or modifying
their effective date) that would defeat the judgment liens or otherwise divest
WVJP of any rights or interest in the properties.
Lozada offers no other challenges to the validity of the liens. “Under
California’s judgment lien law, a judgment creditor’s recordation of an
abstract of judgment creates a judgment lien that attaches to all real
property situated in the county in which the judgment is recorded and that
otherwise is subject to enforcement of the money judgment against the
debtor.” (Lezine v. Security Pacific Fin. Services, Inc. (1996) 14 Cal.4th 56,
64–65, citing Code Civ. Proc., §§ 697.310, 697.340.) Lozada does not dispute
that an abstract of the money judgment was recorded in the Sonoma County
Recorder’s Office in 2014. Nor does she raise any challenge to the validity of
the money judgment, the assignment of the money judgment to WVJP, the
writ of execution, or the notices of levy.
In sum, Lozada failed to satisfy her burden of establishing some
possibility that she will ultimately succeed on the merits of her claims and
accordingly, the trial court could not grant the preliminary injunction
regardless of its determination on the balance of interim harm. (Butt v. State
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of California, supra, 4 Cal.4th at p. 678.) We thus conclude that the trial
court abused its discretion in issuing the preliminary injunction. 1
DISPOSITION
The order granting Lozada’s preliminary injunction is reversed. The
parties shall each bear their own costs on appeal. (Cal. Rules of Court, rule
8.278(a)(5).
1 In reaching this conclusion, we do not adopt WVJP’s argument that
Lozada fails to meet her burden on the potential-merits factor because there
was no transmutation of the properties pursuant to Family Code section 852,
subdivision (a). Family Code section 850 provides that “married persons”
may agree to transmute their community or separate property. Family Code
section 852, subdivision (a) provides that transmutation is only valid if
certain requirements are met, including that the adversely affected “spouse”
make, join in, or consent to transmutation in writing. WVJP offers no
authority for the application of these statutes to the Lozadas, whose marriage
had already been dissolved.
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_________________________
Rodriguez, J.*
WE CONCUR:
_________________________
Simons, Acting P. J.
_________________________
Burns, J.
A162277
* Judge of the Superior Court of Alameda County, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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