*1 No. 23604. Apr. [S.F. 1978.] al.,

EVA ISBELL et Plaintiffs and Appellants, al.,

COUNTY OF SONOMA et Defendants and Respondents.

Counsel for Plaintiffs M. Pearl Lewis, and Richard C. William C. McNeill

David and Appellants. Kerl, Counsel, Botz, Caroline P.

James Deputy County County Counsel, for Defendants Respondents. Defendants and Amicus on behalf of Curiae E. Barber as

Michael Respondents.

Opinion of the federal clause the due TOBRINER, Under J. process if the defendant Constitution, a enter a court judgment notice and received has either the defendant shows that (a) record heard, has voluntarily, knowingly to be or (b) defendant opportunity confes The California waived his constitutional rights. intelligently however, Proc., 1132-1134), §§ Civ. statutes (Code sion judgment on the to enter in nonconsumer cases direct the court clerk judgment shall We without notice and hearing. of the basis signed is not that a proof adequate signed explain than rather waived his due debtor has rights; process validly such between bargainers, from knowledgeable emerging negotiations under- have little who executed debtors confessions are most often of their waiver and in little choice the matter. standing significance Because the California statutes insufficient to assure provide safeguards debtor fact executed a voluntary, knowing, intelligent waiver, and because the debtor’s to seek opportunity post-judgment relief does not cure the of a entered unconstitutionality waiver, without valid we conclude that the confession of established in sections 1132 procedure violates through clause the Fourteenth Amendment. 1. Summary of facts. confessions of

Although usually employed creditors, enforce claims of the instant action private presents perhaps more doubtful In 1966 and each was a usage. plaintiffs Sonoma welfare Plaintiff Isbell County recipient.1 pleaded guilty welfare fraud and was sentenced to 30 Because the court did days jail. restitution, not order visited Isbell at the county jail representative 27, 1967, and induced her to execute a confession of January *5 for the $596.98 medical to be determined.” alleged overpayment, “plus The filed this court, document with the clerk the county municipal then which issued a Isbell. The recorded an judgment against county abstract the thus when Isbell a house in judgment; purchased became a lien on that judgment realty. Clevie and Pearson were not with Although plaintiffs Omega charged offense, a criminal claimed their misuse of trust funds county alleged rendered such Pearsons, funds additional income to thus and that the Pearsons had 8, 1966, received excess welfare On payments. February Pearsons, the behest of a executed a representative, county $193, for the amount of the judgment alleged overpay- ment.2 The clerk, filed this document with the court county municipal 1The parties submitted the case for decision statements upon stipulated pursuant Code of Civil Procedure 1138. section This section that “Parties a provides question difference, action, action, be the might of a civil without a subject may, upon agree case the facts containing which the and a submission upon controversy depends, present of the same to any Court which would have if an action had been jurisdiction case, . .. The brought. Court must hear and determine and render thereupon thereon, as if an action were judgment depending.” judgment me to the said now own or may Sonoma, the Pearsons executed a confession of 2Both Isbell and County. thereof This form plaintiff County acquire. against me. This provides: above Sonoma, ^[1] This confession of named, “I and arises judgment applies hereby the sum confess upon judgment judgment following any $-, judgment is for a debt personal in favor of the and authorize facts: to and real form furnished justly wit _.” County property due from I 1966. The for the confessed sum

who entered February judgment of the and has an abstract recorded subsequently county debt. to collect the attempted were advised counsel before

Neither Isbell nor the Pearsons signing have that The confessions plaintiffs parties stipulated judgment. in matters of law and with no “are background lay training persons of a of the have consequences understanding légal lay person’s “There is that confession finally stipulated parties judgment.” and defendants. between actual controversy plaintiffs present California laws governing Plaintiffs contend authorizing unconstitutional, but defendants deny confession this.” dispute additional facts, without receiving

On the basis stipulated that evidence, court entered holding the trial declaratory judgment Code of Civil obtained in confession conformity did not violate 1132 to 1134 Procedure sections process, to the rendered plaintiffs county against judgments consequently from are valid. Plaintiffs judgment. appeal constitutional- an executed 2. A based solely upon confession to demonstrate that because that ly insufficient defective *6 his due waived the debtor has intelligently voluntarily, knowingly, rights. at common feature the striking judgment a debtor of final lies in its authorization for law entry judgment against in notice, As we or to defend. without explained hearing, opportunity 152, v. Bar (1972) Hulland State [105 . the .. P.2d “a confession disposal puts judgment 608]: the forecloses most drastic of enforcement creditor the proceedings. [It] resolu or for defense controversy judicial any possible presentation tion; of a debt it is a admission upon to the obligation contrary personal York Court The New Appeals the court its primatur.” places “ man’s as ‘the loosest binding confessed way described judgments ” (Atlas Credit was devised in civilized that ever country.’ any property 382, 250 N.Y.S.2d 25 N.Y.2d v. Ezrine (1969) Corporation 197, 198.) 7 N.J.L. v. Diamet (1828) Alderman N.E.2d 478], quoting statutes, California’s confession of in 1851 and enacted judgment in codified follow common law with the notable practice exception do not to confess on behalf of the they permit attorney judgment defendant. Barnes Hilton (See 110-111 Cal.App.2d P.2d Code of Civil 98].) Procedure section subdivision (a), provides “A confession be entered without action generally by may due, either for due or to become or to secure money any person against defendant, both, on béhalf or in the manner contingent liability this Such be entered in court prescribed by chapter. judgment may any for like amounts.” Section 1133 having jurisdiction specifies defendant, confession must be in verified and must state writing, the facts The creditor files the concisely constituting liability.3 clerk, it, with the “who court must endorse and enter a upon Proc., of such court for the amount confessed” Civ. (Code 1134). §

In recent has enacted numerous statutes years Legislature limiting the use of confessions of The Financial Code use judgment. prohibits of confessions of industrial loan (§ 18673), judgment by companies licensees under the California small loan law (§ 24468), licensees under the broker law Civil Code 22467). section personal (§ property 1689.12 voids in a home solicitation contract.4 any cognovit provision added Finally subdivision Code Civil (b) Legislature Procedure section that in sale loan providing any primarily use, or household personal, clerk enter family, on a confession anif defendant attorney independently representing certifies that he has advised the defendant to the waiver of respect and defenses and has recommended the use of the judgment procedure. made, 3Section 1133 reads as “A follows: statement must be writing signed by

defendant, oath, verified his effect: following sum; “1. It must authorize the for a specified due, due, “2. If it be for or to become it money must state the facts out of concisely *7 arose, due, due; which it and show that the sum confessed therefor is or become justly “3. If be it for the of a it purpose securing plaintiff contingent liability, must state the facts and show that concisely the sum confessed constituting liability, therefor does not exceed the same.” 4Civil Code section 1804.1 states that no retail installment sale contract include “a may of power attorney ... confess section 2983.7 that no judgment”; similarly provides automobile conditional “a sales contract include of confess power attorney .... Since Code of judgment.” Civil Procedure section 1132 does not of permit, confession Hilton, warrant of judgment by (see case Barnes v. 118 attorney any Cal.App.2d 108, 110-111), it is unclear whether sections 1804.1 and 2983.7 additional impose any restrictions on the use of confessions of judgment.

Plaintiffs, welfare overpay receipt recipients charged enactments from of the recent ments, no derive banning any protection case falls the use present cognovit agreements. restricting 1132 of Civil Procedure sections of Code under through provisions 1134, these unaffected the 1975 amendment. Because provisions without a voluntary against plaintiffs entry permitted waiver, statutes in are unconstitu claim the question knowing plaintiffs tional.

It law that “in case a is settled involving constitutional every clause, within the process deprivation property purview notice a v. (Beaudreau some form of Constitution hearing.” requires 585, 448, 458 535 P.2d 14 Court (1975) Cal.Rptr. Superior [121 339 313 v. Tr. Co. U.S. (1950) see Central Hanover 713]; Mullane [94 must 872-873, 70 Notice and S.Ct. 652].) always L.Ed. hearing (see final one a depriving property entry precede 18, 32, 319, 333 96 S.Ct. 424 L.Ed.2d v. (1976) Mathews Eldridge [47 19 Cal.3d Los v. (1977) Kash Inc. 893]; City Angeles Enterprises, indeed, 53, 562 extraordinary P.2d 1302]); except Cal.Rptr. [138 before even are circumstances notice temporary hearing required 67, 80-82 407 U.S. v. Shevin (Fuentes (1972) [32 deprivation property. Claims Court 556, 569-571, Brooks v. Small 1983]; L.Ed.2d S.Ct. A confession of 1249].) 504 P.2d 8 Cal.3d [105 to authorize we have as explained, purports judgment, courts that a all without notice and agree hearing. Consequently prior if to such a confession is constitutional entered pursuant of the debtor’s due constitutes a valid waiver 405 U.S. 184-188 H. Co. v. Frick Co. (1972) D. (See rights. 133-136, v. 92 S.Ct. Tunheim Bowman 775]; (D.Nev. L.Ed.2d 1392; 1972) Danaher (N.D.Ill. Scott 1973) F.Supp. F.Supp. 1272; Hotels v. Solomon (1975) Irmco Corp. Ill.App.3d N.E.2d 542].) to enter

Since the relevant statutes direct clerk confession, the crucial issue the creditor’s of verified upon presentation document that the debtor has becomes whether that itself demonstrates In waiver. in fact made voluntary, knowing, intelligent issue, we constitutional well-established guided by resolving waiver of constitutional not H. (D. presumed principles: *8 Co., 174, 124, 405 186 L.Ed.2d v. Frick U.S. Co. supra, Overmyer [31

69 292, Bell Co. v. 134]; Ohio Tel Comm'n. 301 (1937) U.S. 307 L.Ed. [81 “ 1093, 1103, 57 S.Ct. 724]); on ‘courts contrary, every indulge reasonable waiver’ of fundamental constitutional presumption 458, 1466, 1461, v. 464 Zerbst L.Ed. (Johnson (1938) rights” [82 Danaher, 58 S.Ct. 146 A.L.R. Scott v. 357]; supra, F.Supp. 1272, 1277; Blair v. Pitchess (1971) 1242,

486 P.2d A.L.R.3d 1206].) debtor’s, We look first whether the assent to the question confession demonstrates the waiver character his voluntary clauses most in form con process rights. Cognovit commonly appear tracts dictated (See party bargaining advantage. 1118, 1130-1131; Colum.L.Rev. see generally Hopson, Cognovit An Problem Due Process and Full Faith Credit Judgments: Ignored 111, 138, (1961) 29 U.Chi.L.Rev. fn. Thus when United States 166.) Co., Court in H. D. Co. v. Frick 405 U.S. Supreme supra, held in the context of a between cognovit agreement negotiated equal unconstitutional, confessions of were not bargainers se per it added the caveat: “Our ... not following holding controlling for other facts of other cases. For where the precedent contract example, adhesion, one of where there is great disparity bargaining power, and where the debtor receives for the other nothing cognovit provision, ensue.” U.S. at legal (405 L.Ed.2d at consequences may p. Bar, In 135].) Hulland v. State 8 Cal.3d we observed that p. supra, this caveat casts “serious doubt ... of constitutionality cognovit adhesion, clauses contained in contracts in which there is great and the receives for the debtor disparity bargaining power nothing 450; Pitchess, Cal.3d at also v. (8 see Blair cognovit provision.” p. supra, 5 Cal.3d at 275.) Pitchess,

In Blair 5 Cal.3d at we discussed an page issue of a debtor’s contractual waiver analogous involving validity his constitutional warrantless seize protection against property claimed creditor under conditional sales contract. Observing contracts, “most those contracts to be adhesion terms appear lender,” the seller or we concluded that “a specified by consent obtained in such contract of adhesion is ineffective to waive the constitutional ..” 275-276.) protections.. (Pp. the debtor’s to a contract assent of adhesion

By parity reasoning, clause, with a or to a confession of form cognovit presented by creditor, cannot as a valid waiver of constitutional But operate rights. *9 70 creditor, the not the if the of the confession are dictated

even terms by of all advance waiver nature of the device—the debtor’s drastic possible the of the to notified of existence defenses and even the be right in substantial disparity bargaining proceeding—strongly suggests Thus the of the creditor. on implies overreaching part position shows that which itself in the rare case in the cognovit agreement except as D. H. between it was a equal bargainers, negotiated agreement Co., a court Frick 405 only Co. v. presented supra, the voluntariness cannot assume with the verified judgment confession. in that waiver of due of rights implicit any process to fails of the confession of debtor’s execution equally judgment of constitutional waiver rights. establish knowing intelligent the not reveal itself often will face of the document Although shows that historical lack of debtor’s experience legal sophistication, who those are most confessions of employed against judgment frequently v. Swarb Lennox (See of that are unaware significance procedure. 1091; 29 U.Chi.L.Rev. cit. (E.D.Pa. 1970) supra, Hopson, op. F.Supp. who courts and commentators have observed that 111.) Many persons are not that not confessions often do realize they sign judgment well their but as notice waiving rights hearing, opportunity v. defense Islands National Bank claim. (See presenting any Virgin Ventures, 1203, 1206; Scott 1973) Inc. (D.V.I. F.Supp. Tropical Danaher, 1272, 1278; 1971) (D.Del. Osmond v. supra, Spence F.Supp. 1349, 1359; F.Supp. Pyes, Judgment Reappraisal Confession of Ill. Thus the debtor’s on Bar J. 769.) Law signature the debtor creates no inference that knowingly his due waived rights. intelligently process and unintelli- an

Because of risk of unknowing high involuntary, Bar, waiver, that Cal.3d we held in Hulland v. State gent fees; we to collect not use a confession of could legal attorney “creates a situation that the use a confession stated he makes it matters the client’s unlikely legal ignorance instrument.” (8 the character and effect will understand Civil Procedure section Code of amended 450.) When Legislature transaction that in a consumer 1132 to proposed provide he counsel the certificate be must independent accompanied him of his and advised sign has advised defendant confession, are that these it also impelled recognized requirements this General of law. As the of due explained, Attorney predicates that “confessions rests the rationale amendment *10 cases” in which does not ensure a knowledge special lay adequately 432, 438 waiver. (1976).) and (59 voluntary Cal.Ops.Atty.Gen. knowing sum, In sad has of shown the confession experience itself lends to and abuse. Such a procedure overreaching, deception, confession cannot its face a and represent voluntary, knowing waiver. intelligent out

Defendants that some confessions in fact evidence a point debtor; waiver thus the knowing, voluntary, intelligent by of a confession to of must sufficiency entry they argue, justify judgment, statutes, however, a be determined on case case basis. California by do not for a case case of determination provide validity of 1134 debtor’s waiver. Code Civil sections 1133 direct Procedure the court enter all clerk to written confessions which state judgment upon the amount and the basis for the debt. The clerk is not a officer v. 208 P. Pellissier Cal. 593 (Lane 810]; judicial (1929) [283 v. Kuder 90 600 (1928) P. he has no 337]); People Cal.App. [266 to confessions on the do not authority reject ground they adequately a valid waiver v. 34 (cf. prove (1867) constitutionally Oliphant Whitney 25, 27; Cal. v. Rose 20 Lelande 503 P. (1912) Cal.App. [129 short, 599]). In the California statutes do not a permit prejudg ment waiver, determination of the debtor’s but judicial validity to clerk enter a document require judgment upon ordinarily insufficient to demonstrate a waiver. valid Thus a entered to the California defective. pursuant procedure constitutionally 3. The debtor’s to seek not cure does opportunity postjudgment relief entered without unconstitutionality a valid waiver the debtor’s due proof rights.

sufficient We defendants’ contention that a debtor’s reject opportunity attack a filed confessed motion after is an judgment by entry In v. Court (1976) adequate remedy.5 Payne Superior 405, 553 P.2d we observed that “Few liberties in 565], Cal.Rptr. [132 (1974) 5We v. Mitchell W. T. Grant distinguish Co. U.S. 600 L.Ed.2d S.Ct. v. Connolly Inc. Court 17 Cal.3d 803 Development, Superior 1895] 637], Both P.2d decisions upheld statutes constitutionality in which permitting the creditor claimed an temporary taking specific property statutes, interest without notice and The confession of prior hearing. contrast, of a permit to which the creditor can judgment, pursuant levy upon final of the debtor any without notice or nonexempt property hearing knowing waiver of that intelligent right. than the have more America been right protect zealously guarded realized that none This has a court law. nation one’s long property his be be if could freedoms would secure our deprived any person time them 'at a without an defend meaningful opportunity possessions ” Shevin, manner.’ Fuentes and in a (Citing meaningful *11 added.) 80 L.Ed.2d 570].) (Italics [32 A of of waiver is determination the the debtor’s validity postjudgment entered, has not a “at a time.” Once determination meaningful judgment done; the is the is now to an debtor damage subject obligation imposed in of can violation his due and the creditor immediately process rights, as the court to enforce that Thus legal obligation.6 employ process 124, 127, in v. unless Osmond 359 explained supra, F.Supp. Spence, entered, determined is an of the is “before the waiver validity judgment debtor will of due be his every process alleged deprived when effective waiver has not occurred.” occasion statutes, moreover, do not even California’s confession of judgment of the waiver. for a determination of the provide validity postjudgment to to set aside the The debtor’s remedies are move (1) judgment only if, of available under Code Civil Procedure section 473—a remedy notice, and files his he of the absence learns judgment despite act to aside motion within months of to set six (2) entry judgment—or 473; Proc., a Civ. extrinsic fraud Code (see § procured by P.2d As we v. 564]). Olivera Grace Cal.2d (1942) pointed in Kash v. out Inc. Los City Angeles, supra, Enterprises, one of recent decisions scores procedural “[n]ot can . .. a collateral judicial availability remedy suggests no a . .. determination sustain which judicial procedure” provides whatsoever, either before or after the taking. take with the

Defendants do not issue reasoning principles based lead us conclude that a confessed to solely upon to the debtor’s constitutionally cognovit agreement signature relief defective, to seek and that debtor’s opportunity postjudgment Instead, from defendants does not cure that defect. precedent, argue 124; Bank v. National 1972) 359 Islands (D.Del. Virgin v. F.Supp. 6Osmond Spence Ventures, Inc., and Pennsylvania Courts in Illinois 1203. F.Supp. supra, Tropical text, stated in the holding different conclusion than have reached slightly before execution of the of the waiver is entitled a determination validity debtor Danaher, 1272; v. LC-DC-F (Scott Employees Chittester F.Supp. v. supra, judgment. 475; Discount 1974) 384 North Consumer (W.D.Pa. Fed. Penn F.Supp. G. E. Cr. Un. — — 1275].) A.2d v. Pa.Super. Co. Shultz States decision in D. H. United Court contending Supreme Co., Co. Frick establishes the definitely of the California confession constitutionality challenged procedure. matter, defendants seek and the instant

Although equate Overmyer First, cases are several relevant the Ohio distinguishable respects. issue a debtor with a statutory procedure Overmyer provided number and substantive unavailable under procedural safeguards Thus, California while in a debtor receives California no procedure. at the notice time the confession entered so as to permit to make a him on the Ohio statutes attack speedy judgment, required court clerk debtor of the notice give *12 confessed 405 U.S. fn. 1 L.Ed.2d at (See judgment. p. [31 Moreover, 128].) whereas California a p. procedure permits postjudg- ment attack on a confession judgment specified procedural only upon the Ohio enabled a debtor to overturn a grounds, procedure judgment confessed whenever the debtor could show the existence of a judgment valid defense on 405 188 the merits. U.S. at L.Ed.2d at (See p. [31 135-136]; see also v. Bank 271 Lincoln National (1974) pp. Billingsley Solomon, 683 Md. 326 A.2d Irmco Hotels v. 34]; [320 Corp. supra, N.Ed.2d 542.) statutory Consequently, procedure upheld Overmyer not was as harsh in as the California at issue nearly operation procedure here.

Second, and more decision perhaps significantly, Overmyer issue, case, nowhere addresses the crucial to the whether the present Ohio statutes established for constitutionally adequate procedure that a valid waiver constitutional had occurred. In assuring rights did record, debtor not attack the Overmyer judgment adequacy but instead claimed that an individual could never waive broadly validly all to notice and hearing through judgment decision went no further than to this agreement. Overmyer reject broad on the it to hold facts before that D. H. proposition Overmyer Co., a which entered into large corporation negotiated cognovit consideration, in return for valuable had intelli agreement “voluntarily, waived its (405 constitutional U.S. at gently knowingly” rights. Lennox, see 405 135]; 187 L.Ed.2d at Swarb v. 201-202 p. [31 138, 146-147, L.Ed.2d S.Ct. 767].) 92 [31 it is “cases are not

Since axiomatic that not authority propositions v. 44 472 therein” (1955) considered (Worthley Worthley 74 a confession of did not resolve that conclude that 19]),

P.2d we Overmyer without a the procedure requires with due (See waiver is consonant sufficient of a valid process. showing 124; Bank Islands National v. Osmond Virgin Spence, supra, F.Supp. Danaher, 1203; Ventures, Inc., v. cf. Scott v. Tropical supra, F.Supp. Bowman, 1272; but see Tunheim v. F.Supp. F.Supp. supra, supra, 542; Solomon, 1392; 326 N.E.2d Irmco Hotels Billingsley Corp. supra, Bank, does therefore v. Lincoln A.2d 34.) National the California confession not conflict with our conclusion that infirm. judgment procedure constitutionally 4. Our procedure holding California confession retroactive should be limited constitutionally given effect. defective concluded that the California Having defective, this decision we hold that after is constitutionally procedure enter a confessed becomes final no court pursuant however, remains, as to the A application question procedure.7 this to the of this entered decision finality prior judgments 13 Cal.3d Co. in Li v. Yellow Cab As we opinion. explained and fast no hard 393], 78 A.L.R.3d P.2d *13 effect; retroactive the extent to which a decision rules determine given and of fairness considerations this nature turn on “determinations of 829.) Cal.3d (13 p. public policy.” militate of fairness and

Such considerations public policy of decision. retroactive the present Although fully application not found use in California confessions of have widespread 108, Hilton, were 111), Barnes v. (see Cal.App.2d judgments supra, of of venerable In -entered to that some age. many pursuant procedure, debt; some the creditor has such cases the debtor owed the probably would be this date collected all or Little gained, part judgment. which would automatic much confusion a decision engendered, Brown void all such In re (Cf. Marriage ally judgments. 633, 544 P.2d 561].) 850-851 hand, well have of those On the other may many existing judgments debtor’s constitutional without a valid waiver the been entered rights; to the debtors, have a defense the in some cases they believing the transaction within scope does not involve a consumer instant case 7Since the here decide (b), we do not section subdivision of Civil Procedure Code to that entered provision. of judgments pursuant constitutionality seek those We obligation,, jeopen underlying may proceedings. our believe that decision should be a limited retroactive therefore given debtor application permit any judgment apply hearing of the waiver in his confession At validity challenging judgment. creditor, such a who must overcome the hearing presumption against waiver constitutional bears burden rights, proving validity waiver;8 if he fails to sustain the burden court must vacate the judgment. Co., as in Li v. Yellow Cab 13 Cal.3d we

Finally, supra, conclude before the court should be benefit of our litigants given invalid, decision based a confession in order “to holding incentive in future cases for who have occasion to provide parties raise ‘issues renovation of unsound or outmoded doc involving legal ” trine.’ Cal.3d at (13 830.) reversed the cause remanded with directions to enter a in favor of that the declaratory judgment plaintiffs determining of Code of Civil Procedure sections judgment procedure subdivision and 1134 (a), does not conform to the due process standards of the Fourteenth Amendment to the United States Constitu- tion, and further entered determining against plaintiff 27,1967 Isbell on and the entered January against plaintiffs 16, 1966, Pearson on are void.9 February

Bird, J., Mosk, J., C. J.,* concurred. (Homer B.), Thompson jurisdictions 8Courts other have as to disagreed whether debtor or the creditor the burden bears in a proof postjudgment hearing concerning the debt validity waiver. or's Osmond v. (Compare Spence, 127with Virgin F.Supp. Islands *14 Inc., Ventures, National Bank v. Tropical 1203 and Irmco Hotels supra, F.Supp. Corp. Solomon, 542.) 326 N.E.2d We believe supra, this issue was resolved in correctly the below, Court of opinion and therefore Appeal that court’s which stated adopt language, Pitchess, 274, that: “In Blair v. 5 Cal.3d 258 at the Court held that page Supreme search, ‘Where officials on consent to the lawfulness of government rely the justify is on them to burden show clear and by evidence the consent was positive freely, and voluntarily . . Blair involved the waiver of Fourth knowledgeably given.’. Although Amendment its rationale is nevertheless rights, here. Due controlling less no fundamental than the Fourth Amendment protection unreasonable seizures, searches and and the waiver to the presumption against equally applicable constitutional notice of and Thus where a creditor relies guarantee hearing. waiver upon due he of should be that the waiver was valid.” process rights, charged proving 9We here hold (a), that sections subdivision and 1134 of the Code of Civil Procedure enact an unconstitutional of procedure. entered validity judgments pursuant under the stipulation agreement of other statutes or of authority rules court case, not before us in the and we present do not that such imply are void. judgments * Judicial Assigned by Council. Chairperson RICHARDSON, J. dissent. In its zeal to I respectfully praiseworthy of standardized adhesion contracts victims containing unwary protect unnecessarily judgment provisions, majority down a of California’s strikes major portion improperly Proc., 1132, subd. (a), Code Civ. §§ statute (namely, deference, all I that in a situation for use With 1134). suggest calling for a axe. The reaches meat of a majority’s majority surgeon’s scalpel latest conflicts with the facial expressions unconstitutionality holding and has Court on the United States subject, Supreme even those effect of unfortunate (and invalidating unnecessary) wholly debtors for the confessions executed knowledgeable by willing in over matters already avoiding unnecessary litigation purpose in an Because the confession entirely procedure operates controversy. cases, in 1975 has and because the fashion in such Legislature proper contracts to most added adhesion-type applicable adequate safeguards Proc., the chal- Civ. subd. we should Code (see (b)), § uphold assert that their those debtors who may lenged legislation require were obtained to raise the defense through improperly signatures relief. appropriate postjudgment not involve I stress that the case before us does typical,

Initially, contained in much-criticized, of the sort note or “cognovit agreement,” observer, “This contracts. As described one type many adhesion-type document, note, in a contract or other attempts incorporated to authorize ... advance entering controversy any legal (Note, confessed.” without for amount notice hearing Revisited: Due Process and Judgment Cognovit Confession of It Note.) cited as 1045, 1046, hereafter L.J. italics in original, Hastings the case we condemned confession which was this advance type 8 Cal.3d Bar (1972) Hulland v. State relied majority, upon (who, In Hulland 503 P.2d attorney 608]. had exacted client) to his course, owed a obligation continuing fiduciary future as from a new client such a confession security payment 443.) services. (Id., at p. legal *15 with a case contrast, bearing any we are not

In marked presented us, defendant before county In the matter to Hulland. factual similarity of its discovery confessions of following the written obtained In the on it welfare fraud by plaintiffs. was what it claims perpetrated a criminal was followed Isbell the claim prosecution case of plaintiff Code; under section 11482 the Welfare and Institutions Isbell pled to the offense and was Plaintiffs Pearson were guilty charged jailed. to have received an of welfare benefits before alleged overpayment they executed their confession of While did not have the judgment. plaintiffs advice counsel when the confessions of were signed, herein, unanimous Court of “... there not a language Appeal scintilla of evidence that did not and they knowingly, intelligently waive their due It is that voluntarily process rights.” significant were confessions not buried in the fine of an adhesion contract. print Furthermore, actual, were directed toward an they resolving existing between the The two confessions involved herein controversy parties. Sonoma, bear the vs. caption “County plaintiff [Omega [Eva Isbell] defendant,” and Clevie recite that each defendant confesses Pearson] sum, ain and contain a handwritten specific paragraph, debtors, which the facts and admits of the fraud sets forth a respective stated, (For Isbell’s confession in her own repayment plan. example, that “I false statements to which to [jzc] receive handwriting, gave I welfare. $20.00 it back at dollars month until said plan pay Twenty debt after I am released from paid, jail.”)

Given the fact that the executed the confessions after plaintiffs shortly with the had arisen as than an controversy county (rather part adhesion contract for or services executed in advance of default), goods we may understood their reasonably presume fully plaintiffs to the confessed potential liability county, knowingly voluntarily in order to avoid the inconvenience contested expense So as a debtor has notice of the existence litigation. long dispute his creditor to contest the claim if he chooses to opportunity so, do the confession of “raises no judgment procedure significant This method of without action process problems. confessing judgment avoids needless (Note, 1046.) litigation.” observed,

As in 1975 the acted previously most Legislature protect adhesion contract debtors from the confession of judgment procedure. Under new section subdivision (b), a confession sale, not be entered the debtor in an service loan ordinary transaction unless the own debtor’s certifies he independent attorney has informed his client the facts and and has fully consequences, advised him use the judgment procedure. *16 1132, reason of the enactment of section subdivision the (b),

By the interests of adhesion contract debtor have been typical adequately indeed, does not to invalidate that protected; majority purport the rest The subdivision with of the statute. along majority’s principal “ reason for down the to be that ‘a striking remaining provisions appears consent obtained in such a contract of adhesion ineffective to waive the 69, from constitutional ....’” Blair v. (Ante, quoting protections p. Pitchess 5 Cal.3d 486 P.2d (1971) however, A.L.R.3d As I have we are 1206].) not previously explained, with in an advance confession clause adhesion dealing typical contract.

The a record which discloses no evidence whatever majority, ignoring concludes that confessions of “most are overreaching, often” have “little executed debtors “who little choice” understanding” “most in clauses adhesion 64,65); the (ante, commonly” pp. cognovit appear contracts; the the device in nature of substantial disparity “suggests” “historical overreaching; experience” bargaining power “implies” that “confessions” are those shows “most frequently employed 69-70, are courts” have added). who unaware” italics (ante, pp. “Many do realize” are defense observed not they waiving signators “often no inference of a thus the debtor’s creates knowing signature rights; sum, has waiver. “In sad shown exercised (Ibid.) experience intelligently lends itself to confession of judgment procedure overreaching, abuse,” be so on its face the confession cannot voluntary deception, short, italics In (Ante, factual added.) knowing. p. ignoring us, before a result based on what it record majority predicates has been an general experience judgments, perceives had, have, has area which and continues to active interest very legislative and attention. should,

I am convinced that we much more this task wisely, approach basis, those on case-by-case offending practice only invalidating violated. which due standards situations actually process “do not for a case asserts that the statutes themselves provide majority Yet, as of the waiver (Ante, 71.) determination” case question. available, review is debtor readily recognizes, majority judicial Proc., 473), aside the Civ. (Code § either move to set may fraud in action procuring file alleging independent P.2d v. Grace 19 Cal.2d Olivera (see, e.g., below, the of such As I 1328]). A.L.R. availability postjudgment explain H. Co. (D. satisfies relief objections. clearly any *17 124, 135-136, 92 S.Ct. L.Ed.2d Frick Co. U.S. [31 lack the such a 775].) “case-by-case” may simplicity Although approach in its I confession entirety, invalidating judgment procedure that such an is dictated the fact approach suggest in the vast in an manner operates entirely proper majority procedure cases.

The holds that the confession of majority procedure unconstitutional its face under due because process principles without be entered “a determina- may judicial prejudgment (Ante, of the tion the debtor’s waiver . .. from 71.) .” validity p. Apart fact that in the case we such a valid present properly presume may confessions, from waiver the face of handwritten in 1972 the United States Court a similar claim of facial Supreme unanimously rejected Thus, Co., in D. H. v.Co. Frick unconstitutionality. 174, the court reviewed the of an Ohio high validity debtor,

entered the creditor without notice on the basis of the latter’s execution note confession- prior promissory containing clause. In the court noted of-judgment affirming judgment, expressly “The that to notice and to a civil rights process hearing prior are at to waiver” L.Ed.2d that 133]); subject (p. p. [31 made, such a waiver must be although voluntarily knowingly had not that it debtor contended was unaware of of the significance note’s L.Ed.2d 134]); the facts provisions (p. p. no disclosed the creditor unequal power overreaching by bargaining words, The court concluded these (ibid.). fully dispositive constitutional “Our majority’s major premise: holding necessarily not, se, that a means clause is violative of Fourteenth cognovit per Amendment due could here if the clause process. prevail [Debtor] case, were invalid. The facts of this as we observed constitutionally above, are and those facts demonstrate that a important, amply cognovit well serve a in the useful commercial provision may proper purpose attack, world and at the not same time be vulnerable to constitutional [f] course, Our not for other facts of holding, controlling precedent cases. For adhesion, other where the contract is one where example, there is where the debtor great disparity bargaining power, receives for the other nothing cognovit provision, legal consequences ensue.” 187-188 L.Ed.2d at 135].) may (Pp. has found three sections Code of Civil majority However,

Procedure violate due the United States process principles. Court, noted, as I have has said that due be Supreme *18 waived in the situation. While the waiver must be made cognovit case, this fact in that from the face the handwritten knowingly appears fraud, been with a welfare and confessions. formally charged Having therefor, should, while term Isbell and a pled guilty serving jail having be held to have both and reasonably, possessed knowledge charge full to defend. in the record that Similarly, suggests opportunity nothing them, were Pearsons the nature the claims ignorant involved, claim; amount and of their to resist the their own opportunity confession, face, its demonstrates this knowledge. was not left court in that the debtor concluded high Overmyer move confessed as he

without remedy judgment, defense. a of a valid (405 vacate the showing judgment upon proper We follow and at L.Ed.2d at should 135-136].) Overmyer p. pp. of California’s constitutionality uphold cases, rare in unfairly, procedure. Although procedure may, operate as it adhesion has reformed the procedure applies Legislature contracts, in other the debtor afforded and all cases opportunity motion to vacate the confessed an nullify through appropriate is, moreover, a (In statute. it. There of constitutionality presumption 204]; 468 P.2d re H. Ricky Witkin, reason No of Cal. Law ed. 1974) 3281.) (8th satisfying Summary scheme, for the entire thereby precluding invalidating statutory appears where the those situations in use procedure legitimate contested desire to avoid litigation. unnecessary parties above, “The cases conclude, the Note cited I accordance well. alive and They state that considered judgments clearly cognovit Fourteenth clause the due attacks under have withstood process notice to warrant interest sufficient Even though property Amendment. reflected in Sniadach involved, the judicial policy hearing Due extended to has not been process Fuentes cognovit judgments. if waiver is can be entered can waived and be judgments cognovit evident from the contract containing cognovit note. ^[1] if satisfied is almost Fourteenth Amendment certainly that the indicates to the conforming there is requirements procedure appellate is to of the courts It .... can be [|] provide duty argued not to demand forum. Their function is neutral litigation an impartial, made, the court’s can be Since waiver due process rights every dispute. function if, is to forum of waiver but provide attacking validity if, the debtor wants to it.” (Note, challenge 1064-1066.) pp.

I would affirm the judgment.

Clark, J., Manuel, J., concurred. for a denied June was Respondents’ petition rehearing *19 Clark, Richardson, was modified J., to read as above. opinion printed J., Manuel, J., were should be opinion petition granted.