Opinion
The primary issue raised by this appeal is whether a judgment lien on a real property interest held by a tenant in common survives both a change in title to joint tenancy and the death of the debtor joint tenant. We hold that it does, and reverse the judgment and an order denying the judgment creditor his attorney fees.
I.
Background
In 1981, Benjamin and Conchita Dieden sued Stanley Schmidt. The Diedens lost and the court entered judgment for Schmidt. The court awarded *649 Schmidt his attorney fees and costs. Schmidt recorded an abstract of judgment (the first abstract) and obtained a lien against real property located in Berkeley owned by the Diedens. Schmidt, however, did not force a sale of the Berkeley property.
In 1991, First Nationwide Bank made a loan to the Diedens secured by a deed of trust on the Berkeley property.
Schmidt renewed his judgment in 1992, but only against Benjamin Dieden. 1 Schmidt then recorded a second abstract of judgment. It is undisputed that at the time Schmidt recorded this abstract, the Diedens owned the Berkeley property as tenants in common.
In 1994, the Diedens conveyed their interests in the Berkeley property to themselves as joint tenants.
In 1998, Benjamin Dieden filed a complaint against Schmidt to quiet title to the Berkeley property. Benjamin, however, died in 1999, leaving Conchita as the surviving joint tenant.
Schmidt filed a cross-complaint for declaratory relief and foreclosure of lien against the Diedens and the successor to First Nationwide Bank, First Nationwide Mortgage Corporation (First Nationwide).
Schmidt, Conchita Dieden, and First Nationwide all filed motions for summary judgment. Schmidt also moved for an award of attorney fees incurred to enforce his judgment.
The trial court ruled first on the summary judgment motions of First Nationwide and Schmidt. It granted First Nationwide’s motion and denied Schmidt’s. The trial court found, based on undisputed facts and as a matter of law, that Schmidt’s judgment lien terminated upon the death of Benjamin Dieden. The trial court entered judgment for First Nationwide and denied Schmidt’s motion for attorney fees.
Schmidt appealed from both the judgment and the order denying his request for attorney fees.
A different judge then heard Conchita Dieden’s motion for summary judgment and reached the opposite conclusion. That judge found Schmidt’s lien had not been extinguished by Benjamin Dieden’s death and denied Conchita’s motion for summary judgment.
*650
The order denying Conchita Dieden’s summary judgment motion was not an appealable order.
(Doran
v.
Magan
(1999)
II.
Discussion
A. Survival of Judgment Lien
There are no material disputed facts with respect to the issue of whether the judgment lien was extinguished when Benjamin Dieden died in 1999. The application of the law to the undisputed facts is subject to our independent review.
(Crocker National Bank
v.
City and County of San Francisco
(1989)
Neither the parties nor we have found any case law squarely on point. But we agree with Schmidt that the outcome of this case ultimately turns on the application of the Enforcement of Judgments Law (Code Civ. Proc., § 680.010 et seq.).
We begin with a brief review of the relevant features of joint tenancies and tenancies in common. The principal characteristic of a joint tenancy is the right of survivorship.
(Estate of Propst
(1990)
There is no right of survivorship in a tenancy in common. Instead, each tenant may pass his or her interest in the property to heirs and devisees.
( Estate of England
(1991)
Cotenants (both joint tenants and tenants in common) may encumber their separate interest without the consent, and without affecting the interests, of other tenants.
(Schoenfeld v. Norberg
(1970)
Respondents rely upon the settled law in California (and other jurisdictions) that a lien that has attached to the interest of a joint tenant expires upon the death of that tenant.
(Grothe v. Cortlandt Corp., supra,
As Schmidt points out, however, his judgment lien attached to Benjamin Dieden’s interest as a tenant in common, before the creation of any right of survivorship. Until the lien was satisfied or extinguished, it was enforceable against Benjamin’s interest in the Berkeley property regardless of who held that interest. Under Code of Civil Procedure section 697.390, subdivision (a), a subsequent conveyance or encumbrance of an interest in real property subject to a judgment lien does not affect the lien. 3 Further, under section 695.070, the judgment lien may be enforced against the property in the same manner and to the same extent as if there had been no transfer, even after the death of the judgment debtor. (Id., § 695.070.) 4
. Thus, when Benjamin and Conchita Dieden transferred their tenant in common interests to one another in 1994 and created a joint tenancy, she
*652
took her interest in the property subject to the judgment lien. (See
In re Marriage of Cloney
(2001)
In fact there is some logical appeal to Schmidt’s argument that after the transfer, the judgment lien could be enforced against the entire property because the property interest Benjamin conveyed to himself was subject to the lien (see, e.g., Code Civ. Proc, § 697.340, subd. (b)),
5
as was the interest conveyed to Conchita. Once again, however, it is the language of the Code of Civil Procedure sections 697.390 and 695.070 that controls. Under those sections, Schmidt may enforce his judgment in the same manner and
to the same extent as if the property had never been transferred.
(See
Oliver v. Bledsoe
(1992)
Respondents, having little ammunition to respond to Schmidt’s arguments, fall back on the decision in Zeigler, supra, 52 Cal.App.2d 217. They cite both the holding in Zeigler that a judgment lien on a joint tenant’s interest expires on that tenant’s death, and language in Zeigler to the effect that a judgment creditor assumes the risk that the debtor tenant will die before the other joint tenant.
Zeigler
is inapposite here. The judgment lien in
Zeigler
attached to an existing joint tenancy interest. There was no transfer of property from one form of ownership to joint tenancy. In
Zeigler,
a father and daughter owned real property in joint tenancy when a judgment was secured against the father and the creditor recorded an abstract of judgment. The daughter’s right of survivorship preceded the judgment lien and was not affected by the
*653
judgment lien. When the father died, the judgment lien terminated and the creditor no longer had any rights in the property.
(Zeigler, supra, 52
Cal.App.2d at p. 220; see also
People
v.
Nogarr, supra,
The
Zeigler
court concluded that when a judgment lien attaches to a joint tenant’s interest, the creditor has a choice. The creditor can immediately execute and sell the interest of the judgment debtor, severing the joint tenancy.
(Zeigler, supra, 52
Cal.App.2d at p. 221.) Or, the creditor can wait to see if the judgment debtor survives the cotenant, in which case the judgment lien will attach to the entire property.
(Ibid.)
If the creditor gambles on the judgment debtor’s survival, the creditor assumes the risk of losing the lien.
(Id.
at pp. 221-222; accord,
Grothe
v.
Cortlandt Corp., supra,
Zeigler’s risk/reward analysis does not apply in the instant case. Under the Enforcement of Judgments Law, judgment liens on real property continue for 10 years (Code Civ. Proc., § 697.310, subd. (b)), and are renewable (id., § 683.110 et seq.). Judgment liens cannot be avoided by transferring real property. (Id., § 697.390.) Thus the law does not require a creditor to rush to execute on a debtor’s real property. 6 Assuming Schmidt even had notice of the Diedens’ transfer of the Berkeley property, any incentive he had to wait to see which tenant would die first was created solely by the Diedens. Though there is no suggestion in the record that the Diedens made the transfer to defraud Schmidt or any other creditor, the fact the transfer occurred should not operate to the detriment of Schmidt.
Schmidt’s lien did not expire upon Benjamin Dieden’s death; it remained valid and enforceable against a one-half interest in the property.
B. First Nationwide’s Request for Summary Adjudication
First Nationwide asserts that even if Schmidt’s judgment lien is valid, its deed of trust has priority. First Nationwide moved for summary adjudication below on the issue of priority of the liens on two separate grounds: (1) it was the senior lienholder under the doctrine of equitable subrogation; and (2) it was the senior lienholder because Schmidt’s first abstract of judgment was void for failure to comply with the statutory requirements for abstracts. Both contentions became moot when the trial court found Schmidt’s lien had terminated upon Benjamin Dieden’s death.
*654
First Nationwide, however, citing the principle that this court may affirm a summary judgment on any correct legal theory
(Kramer v. State Farm Fire & Casualty Co.
(1999)
As its name suggests, the doctrine of equitable subrogation invokes the court’s equitable jurisdiction. The doctrine applies in a variety of circumstances when one person pays the debt of another. (See 11 Witkin, Summary of Cal. Law (9th ed. 1990) Equity, §§ 169, 170, pp. 848-851;
Lawyers Title Ins. Corp. v. Feldsher
(1996)
Summary judgment motions usually raise matters of law, but not when the trial court grants or denies such a motion on the basis of equitable determinations.
(Centennial Ins. Co.
v.
United States Fire Ins. Co.
(2001)
Assuming the doctrine of equitable subrogation even applies in this case (see 11 Witkin, Summary of Cal. Law, supra, Equity, § 172, pp. 853-854 [no recovery against innocent third party]), the trial court should be given the opportunity to balance the equities and exercise its discretion. This court will not consider the matter in the first instance.
As for First Nationwide’s argument that the first abstract of judgment was void, there are disputed material facts on that question. First Nationwide points out that Schmidt did not list the Social Security numbers and driver’s license numbers of the Diedens in his first abstract of judgment, as required by Code of Civil Procedure section 674. But that section only requires a judgment creditor to provide social security and driver’s license numbers “if they are known to the judgment creditor.”
(Id.,
§ 674, subd. (a)(6); see
Keele v. Reich
(1985)
C. Attorney Fees
Given our conclusion that Schmidt has a valid judgment lien, we will reverse the order denying attorney fees. We leave the determination as to whether Schmidt should be awarded fees, and if so, in what amount, to the trial court. (See Code Civ. Proc., §§ 685.040, 685.080.)
III.
Disposition
The judgment in favor of First Nationwide is reversed. The order denying Schmidt’s motion for attorney fees is reversed. Schmidt shall recover his costs on appeal.
Kay, P. J., and Rivera, J., concurred.
A petition for a rehearing was denied January 9, 2003, and the petition of respondent Conchita Dieden for review by the Supreme Court was denied March 19, 2003.
Notes
Conchita Dieden had filed for bankruptcy and had apparently obtained a discharge of Schmidt’s claim against her.
Schmidt has requested judicial notice of the documents filed in connection with Conchita Dieden’s summary judgment motion. Those materials are part of the record on appeal and can be found in the respondent’s appendix filed by Ms. Dieden. Therefore, the request for judicial notice is denied.
Code of Civil Procedure section 697.390, in pertinent part, provides: “If an interest in real property that is subject to a judgment lien is transferred or encumbered without satisfying or extinguishing the judgment lien: [f| (a) The interest transferred or, encumbered remains subject to a judgment lien created pursuant to Section 697.310 in the same amount as if the interest had not been transferred or encumbered.”
Code of Civil Procedure section 695.070 provides: “(a) Notwithstanding the transfer or encumbrance of property subject to a lien created under this division, if the property remains subject to the lien after the transfer or encumbrance, the money judgment may be enforced against the property in the same manner and to the same extent as if it had not been transferred or encumbered. [^[] (b) If the judgment debtor dies after the transfer of property *652 that remains subject to a lien created under this division, the money judgment may be enforced against the property as provided in subdivision (a).”
Code of Civil Procedure section 697.340, subdivision (b), provides: “If any interest in real property in the county on which a judgment lien could be created under subdivision (a) is acquired after the judgment lien was created, the judgment lien attaches to such interest at the time it is acquired.”
Nor should it. We see no point in encouraging creditors to rush to execute on a debtor’s real property.