In proceedings pursuant to Code of Civil Procedure section 690.31, 1 the Orange County Superior Court granted real party’s application for writ of execution against a dwelling house. The homeowner petitioned this court for a writ of prohibition and/or certiorari to review the propriety of the procedure followed and the validity of the order granting issuance of the writ of execution. We treated the petition as one for mandate and issued an alternative writ and a stay order.
Facts
The facts are not in dispute, having been stipulated to for the most part.
Petitioner, a widow, owns and resides in a dwelling house at 2208 South Anchor Street, Anaheim. On January 8, 1974, she executed and recorded a declaration of homestead with respect to that property. It is stipulated the declaration of homestead is valid and the amount of the homestead exemption is $20,000.
On December 15, 1975, real party recovered a money judgment against petitioner in the amount of $22,476.12. On August 11, 1977, pursuant to section 690.31, real party applied to the Orange County Superior Court for issuance of a writ of execution against petitioner’s dwelling house. The court issued an order to show cause. On September 8, 1977, petitioner was personally served with a copy of the application and order, and on October 27, 1977, the matter came on for hearing.
As of the date of hearing six abstracts of judgments, including real party’s, had been recorded subsequent to petitioner’s declaration of homestead. The judgments total in excess of $100,000. In addition, the property is encumbered by a first deed of trust with an unpaid balance of $18,236.
It was stipulated that the full value placed upon the dwelling house by the County Assessor of Orange County as of July 1, 1977, was $44,640 and that, if called to testify, a qualified real estate appraiser would testify the fair market value of the dwelling house is approximately $66,000.
Contentions
Petitioner contends the exclusive method for enforcing a money judgment against a homesteaded dwelling house is the procedure prescribed by Civil Code sections 1245 through 1259. Alternatively, she contends that, if section 690.31 is applicable, the recorded abstracts of judgments in excess of $100,000 are liens against the property (§ 674, subd. (c), infra) and that since their amount exceeds the fair market value of the property, issuance of- a writ of execution against the dwelling house is impermissible.
Real party contends the 1976 enactment of section 690.31 impliedly repealed any inconsistent provisions found in Civil Code sections 1245 through 1259 so that section 690.31 prescribes the applicable procedure. Real party further contends that since the dwelling house was homesteaded, the recorded abstracts of judgments did not create liens against the property (Code Civ. Proc., § 674, subd. (a);
Boggs
v.
Dunn,
We have concluded that the procedure for enforcing a money judgment against a homesteaded dwelling house is that prescribed by Civil Code sections 1245 through 1259 and that those provisions of the Civil Code were not impliedly repealed by the enactment of Code of Civil Procedure section 690.31. Accordingly, except as it may be incidentally involved in our discussion of the principal problem, we do not reach the question whether the recorded abstracts of judgments would have been considered liens against the property if the applicable procedure were, that prescribed by section 690.31.
Discussion
Since 1872 the procedure’for enforcing a money judgment against a homestead has been that prescribed by Civil Code sections 1245 through 1259. The procedure may be outlined as follows. Proceedings are
In 1974 (Stats. 1974, ch. 1251 [operative July 1, 1975]) the Legislature enacted former Code of Civil Procedure section 690.235 providing for a dwelling house exemption in the same amount as the homestead exemption. That legislation created no conflict with Civil Code sections 1245 through 1259 because section 690.235 expressly provided the dwelling house exemption was not available to a debtor if he or his spouse had an existing declared homestead on any property in the state and, more importantly, the legislation did not purport to make any significant change in the law pertaining to issuance of writs of execution 2 and the prescribed method for claiming the dwelling house exemption was with minor exceptions the same as that for claiming any other exemption from execution pursuant to Code of Civil Procedure section 690.50.
In 1976 the Legislature repealed former Code of Civil Procedure sections 690.235 and 682b (see fn. 2, ante) and enacted section 690.31 with an operative date of July 1, 1977. (Stats. 1976, ch. 1000.) In 1977 the Legislature amended section 690.31 and related sections giving the
It is apparent that the procedures prescribed by section 690.31 are inconsistent in many material respects with the procedures prescribed and contemplated by Civil Code sections 1245 through 1259. Under the Civil Code, appraisers are not appointed and the value of the property is not determined until after issuance and levy of a writ of execution which is had pretty much as a matter of course; the valuation is by appraisal; if the value of the property exceeds the amount of the exemption plus the amount of all liens and encumbrances, the result may be a division of the property and sale of a portion or sale of the whole under supervision of the court. The order in which proceeds are to be applied and extension of the exemption to those proceeds paid to the debtor are prescribed. Under section 690.31 no writ of execution may issue until application is made and a hearing is had at which the value of the property and the availability of the exemption are determined; if the value of the property exceeds the amount of the exemption plus the amount of all liens and encumbrances, the result is the issuance of a writ of execution and, apparently, an execution sale. The order in which proceeds are to be
To support its contention that the enactment of section 690.31 impliedly repealed all .inconsistent provisions found in Civil Code sections 1245 through 1259, real party relies on the familiar rules of statutory construction that where two acts of the Legislature are in conflict, the more specific controls the more general and the later enactment prevails over the earlier. We have concluded these rules are inapplicable because, properly viewed, the two statutory schemes are not in conflict. They simply apply to different situations. The procedures set forth in Civil Code sections 1245 through 1259 apply to the enforcement of a money judgment against real property with respect to which a declaration of homestead has been recorded. Section 690.31 and its statutory relations apply to the enforcement of a money judgment against all other dwelling houses.
The only substantial obstacle to this construction of the statutory schemes is the language of subdivision (c) of section 690.31: “Whenever a judgment creditor seeks to enforce a judgment against a dwelling house, . . . the judgment creditor shall apply to the proper court in the county in which the dwelling house is located for the issuance of a writ of execution. . .. The application shall be verified and describe the dwelling house and state thát either or both of the following facts exist: [¶] (1) The dwelling house is not exempt, the reasons therefor, and (i) that a reasonable search Of the records of the office of the county recorder has not resulted in the finding of a declared homestead of the debtor or the spouse of the debtor on the subject dwelling house . . . . [¶] (2) The
Admittedly, this language is very broad, broad enough to encompass all dwelling houses whether homesteaded or not. Since Civil Code sections 1245 through 1259 do not specifically provide a procedure for obtaining issuance of a writ of execution, it is tempting to attempt to construe the statutes so as to conclude that the procedure prescribed by section 690.31 for obtaining issuance of a writ of execution pertains to all attempts to enforce a money judgment against a dwelling house, whether homesteaded or not, and that the procedure found in the Civil Code applies to homesteaded dwelling houses after issuance of a writ of execution. However, as previously mentioned, the issuance of a writ of execution under section 690.31 involves a determination of the value of the property at a different stage of the proceedings and by a method different than that prescribed in the Civil Code and treatment of recorded abstracts of judgments in determining the existence of the exemption appears to be different under the two statutory schemes. It does not appear possible, therefore, to construe section 690.31 as prescribing the procedure for obtaining issuance of a writ of execution in all cases and Civil Code sections 1245 through 1259 as prescribing the procedure to be followed thereafter in respect to a homesteaded dwelling house only.
However, the presumption is against repeal by implication, especially where, as here, the earlier act has been generally understood and acted upon.
(Cal. Drive-In Restaurant Assn.
v.
Clark, 22
Cal.2d 287, 292 [
Moreover, our conclusion the Legislature did not intend to repeal any part of the procedure prescribed by Civil Code sections 1245 through 1259 is confirmed by a significant item in the legislative history of section 690.31. The bill enacted as section 690.31 on September 16, 1976, was Assembly Bill No. 2698. The analysis of that bill as amended August 5, 1976, prepared for the Senate Committee On Judiciary contains on page 4 the following comment: “Present law allows a debtor to protect his home against the claims of creditors in one of two ways. He may, in advance of suffering a judgment against him, claim a ‘homestead’ under Title 5 (commencing with Section 1237) of Part 4 of Division 2 of the Civil Code or, after [orig. emphasis] the home has been levied upon under a writ of attachment or execution, obtain a ‘dwelling house exemption’ (Secs. 690, 690.235, & 690.50, C.C.P.). In either case, the value of the exemption is now $20,000, but will increase to $30,000 on January 1, 1977, under legislation enacted this session (Ch. 132, Stats. 1976). This bill would revise the rules governing the dwelling house exemption only, and would not affect homesteads. [Emphasis added.]”
Disposition
Let a peremptory writ of mandate issue to the Orange County Superior Court commanding it to vacate its order of October 28, 1977, granting real party’s application for writ of execution and to enter its order denying real party’s application without prejudice to its proceeding under Civil Code sections 1245 through 1259. The alternative writ heretofore issued is discharged and the stay heretofore made is vacated.
Tamura, Acting P. 1, and McDaniel, 1, concurred.
Notes
All statutory references are to the Code of Civil Procedure unless otherwise indicated.
Section 1 of the act (Stats. 1974, ch. 1251) enacted Code of Civil Procedure section 682b which required each application for a writ of execution against a dwelling house to be accompanied by a notice informing the homeowner of the possibility of claiming a dwelling house exemption and making reference to the procedure for so doing pursuant to Code of Civil Procedure section 690.50.
The prescribed notice supplants the notice that had been required by former section 682b.
Subdivision (c) of section 674 was added by section 1 of the same act in which section 690.31 was enacted (Stats. 1976, ch. 1000, § 1). It reads: “With respect to real property containing a dwelling house judicially determined to be exempt from levy of execution pursuant to the provisions of Section 690.31, as distinguished from property subject to a declared homestead created pursuant to Title 5 (commencing with Section 1237) of Part 4 of Division 2 of the Civil Code, a judgment lien created pursuant to subdivision (a) of this section shall attach to such real property notwithstanding the exemption provided by Section 690.31.”