Filed 5/29/13
                           CERTIFIED FOR PUBLICATION


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SECOND APPELLATE DISTRICT

                                   DIVISION THREE


ADIR INTERNATIONAL, LLC,                             B247117

        Petitioner,                                  (Los Angeles County
                                                     Super. Ct. No. BC451147)
        v.

THE SUPERIOR COURT OF
LOS ANGELES COUNTY,

        Respondent;

FUSION INDUSTRIES,

        Real Party in Interest.




        ORIGINAL PROCEEDINGS in mandate. Abraham Khan, Judge.
Petition denied.


        Elizabeth T. Van Horn, Assistant General Counsel, for Petitioner.
        No appearance for Respondent.
        Law Offices of A.J. Glassman and A.J. Glassman for Real Party in Interest.


                      _______________________________________
       After the sheriff levied on funds in its bank account, pursuant to a writ of

execution, a judgment debtor filed a notice of appeal and a sufficient appeal bond. The

debtor gave notice of these documents to the sheriff, in order to prevent the sheriff from

disbursing the levied funds to the judgment creditor. However, the debtor failed to file

a motion to quash the writ of execution. The sheriff then disbursed the levied funds to

the creditor. The debtor filed an ex parte application, requesting the trial court to order

the creditor to return the funds erroneously disbursed to it by the sheriff. The trial court

denied the order, on the basis that it had no jurisdiction to do so once the funds had been

delivered to the creditor. The debtor filed a petition for writ of mandate challenging the

trial court’s order. We issued an order to show cause and now deny the petition.

                  FACTUAL AND PROCEDURAL BACKGROUND1

       Petitioner Adir International, LLC dba Curacao, filed the instant action against

Fusion Industries, which then filed a cross-complaint. The action proceeded to a jury

trial, in which Fusion prevailed. The verdict, in an amount exceeding $90,000, was

reached on October 12, 2012. Judgment was entered on November 27, 2012, with

notice of entry shortly thereafter.




1
       After giving notice to the parties, we have taken judicial notice of the Superior
Court “case summary,” to confirm certain dates which are unclear from the documents
submitted in support of the petition.

                                             2
       On December 10, 2012, Fusion, now the judgment creditor, obtained a writ of

execution.2 Fusion filed the writ of execution with the Los Angeles County Sheriff,3

who was statutorily required to execute it. (Code Civ. Proc., § 699.530, subd. (a).)

       On December 12, 2012, Adir International, the judgment debtor, filed a motion

for judgment notwithstanding the verdict, which was set to be heard on January 17,

2013. In the meantime, collection efforts continued. The sheriff levied on the debtor’s

bank account on December 13, 2012. The levy created an “execution lien” on the

property levied. (Code Civ. Proc., § 697.710.) The debtor asserts that it received

a copy of the notice of levy on December 31, 2012.4 At that point, according to the

debtor, the sheriff’s website indicated that the funds would be disbursed to the creditor

on February 4, 2013. Although the debtor was aware, on December 31, 2012, of the

levy on its funds, it took no immediate action to prevent the levied funds from being

turned over to the creditor. Instead, on January 17, 2013, the same day as the motion




2
       “[A]fter entry of a money judgment, a writ of execution shall be issued by the
clerk of the court, upon application of the judgment creditor, and shall be directed to the
levying officer in the county where the levy is to be made . . . .” (Code Civ. Proc.,
§ 699.510, subd. (a).)
3
       The sheriff is considered the “levying officer.” (Code Civ. Proc., § 680.260.)
4
       The levying officer is to serve notice of the levy on the judgment debtor at the
time of the levy “or promptly thereafter.” (Code Civ. Proc., § 700.010.)


                                             3
for judgment notwithstanding the verdict was to be heard, it made an ex parte

application for a discretionary stay of execution.5

       On January 17, 2013, the motion for judgment notwithstanding the verdict was

denied, as was the ex parte application for discretionary stay.6 Under Code of Civil

Procedure section 917.1, subd. (a)(1), the enforcement of a monetary judgment is stayed

by the perfecting of an appeal and the filing of a sufficient undertaking. At the time of

the denial of its motion for judgment notwithstanding the verdict, more than two weeks

remained for the debtor to perfect an appeal and file an undertaking before the levied

funds were to be disbursed to the creditor.

       The disbursement was to occur on February 4, 2013, a Monday. On February 1,

2013, the preceding Friday, the debtor filed a notice of appeal and an appeal bond.7

Under Code of Civil Procedure section 697.040, subdivision (a), one of the effects of

the stay which arises from the filing of a notice of appeal and sufficient undertaking is

that “[e]xisting [execution] liens . . . are extinguished.” Furthermore, upon

extinguishment of such a lien, property held by a levying officer subject to the lien

5
       In its reply brief, the debtor explains that the motion was made at that time “in
order to spare the court and the parties an unnecessary motion (in the event the JNOV
motion was granted) and a second trip to court.”
6
        The record submitted in support of the writ petition contains neither the ex parte
application nor any indication of the grounds on which it was denied. We assume the
motion was made pursuant to Code of Civil Procedure section 918, subd. (b), which
permits a trial court to stay the enforcement of judgment for up to ten days beyond the
last date on which a notice of appeal can be filed. As for the basis for the trial court’s
ruling, a document submitted by the creditor suggests that the court indicated that it
denied a discretionary stay as it perceived no valid basis for an appeal.
7
       There is no suggestion that the appeal bond is, in any way, inadequate.

                                              4
“shall be released,” to the debtor, unless certain exceptions, inapplicable here, exist.

(Code Civ. Proc., § 697.050.)

       Concerned, however, that the sheriff would not know that the liens were

extinguished, and would therefore disburse the levied funds to the creditor on the

following Monday, the debtor hand served the sheriff with a copy of its notice of appeal

and appeal bond.8 The law is clear that, had the debtor sought an order staying further

enforcement of the judgment and directing the sheriff to release the levied funds to the

debtor, the court would have been required to issue it. (California Commerce Bank v.

Superior Court (1992) 8 Cal.App.4th 582, 587 (CCB).) However, the debtor did not

seek such an order. On February 7, 2013,9 the levied funds were disbursed to the

creditor by the sheriff.

       On February 13, 2013, the debtor filed an ex parte application for an order

requiring the creditor to return the erroneously disbursed funds. Relying exclusively on

CCB, the debtor argued that, under the trial court’s residual authority over the

enforcement of judgments,10 the court had the power to order the creditor to return to


8
         “If a paper is required or permitted to be filed with a levying officer under this
title, the paper is considered filed when it is actually received by the levying officer.”
(Code Civ. Proc., § 681.040.)
9
       The date was possibly February 8, 2013. The record is unclear.
10
        Code of Civil Procedure section 916, subdivision (b) provides that “[w]hen there
is a stay of proceedings other than the enforcement of the judgment, the trial court shall
have jurisdiction of proceedings related to the enforcement of the judgment . . . . ”
(Italics added.) Yet, under Code of Civil Procedure section 917.1, subdivision (a)(1),
the perfecting of an appeal and filing of a sufficient undertaking “stay[ed] enforcement
of the judgment.” Thus, the notice of appeal and appeal bond deprive the court of

                                              5
the debtor funds which had been erroneously disbursed to the creditor after the

enforcement lien had been extinguished.

       The trial court denied the application on the basis that, while CCB provided the

court with authority to direct the sheriff to release to the debtor levied funds in its

possession, the court had no authority to order the return of funds already delivered to

the judgment creditor. On February 27, 2013, the debtor filed a petition for writ of

mandate challenging the denial of its application.11 We issued an order to show cause

and now deny the petition.




jurisdiction over proceedings relating to the enforcement of the judgment. This is
logical; as the perfection of an appeal and filing of an undertaking stay the enforcement
of judgment, there should be no need for proceedings in any court relating to the
enforcement of that judgment. However, CCB’s holding assumes that a trial court has,
at a minimum, jurisdiction to effectuate the stay of enforcement. We assume the same.
11
        In its petition, the debtor argues that relief is necessary in order to protect its right
to an effective appeal. As a rule, if a judgment is reversed on appeal, “the reviewing
court may direct that the parties be returned so far as possible to the positions they
occupied before the enforcement of or execution on the judgment or order.” (Code Civ.
Proc., § 908.) The debtor suggests that this would not be possible in the instant matter,
should it prevail on appeal, as the creditor “closed down its business in the winter of
2010, long before the underlying matter came to trial.” “Thus,” argues the debtor, “in
all likelihood the money will be uncollectible by the time [the] appeal is concluded.”
The evidence on which petitioner relies for this proposition is insufficient to support it.
It consists of excerpts from the trial testimony of one Eli Barak, who is otherwise
unidentified, regarding a conversation with one Keith Whitehead, also unidentified.
Even assuming that Whitehead was affiliated with, and spoke for, Fusion, Barak’s
testimony indicates only that, in November 2010, Whitehead told him that he had
decided to “close this chapter of his life of manufacturing fixtures and want[ed] to move
on to a different type of business.” The testimony does not indicate whether Fusion
would remain as a going concern and simply move on to a different type of business;
nor does it indicate whether Fusion, apparently a corporate entity, would be dissolved.
In its preliminary opposition, Fusion represents that it “is an ongoing business with
viable assets . . . . ”

                                               6
                                      ISSUE RAISED

       The sole issue raised by this writ petition is whether the trial court has authority

to order a judgment creditor to return to a judgment debtor funds which have already

been disbursed to the creditor by the levying officer. We conclude that it does not.

                                        DISCUSSION

       As noted above, a levy on property under a writ of execution creates an

execution lien on the property. (Code Civ. Proc., § 697.710.) Code of Civil Procedure

section 697.040, subdivision (a) provides that “[i]f enforcement of the judgment is

stayed on appeal by the giving of a sufficient undertaking . . . : [¶] (1) Existing liens

created under this division are extinguished. [¶] (2) New liens may not be created

under this division during the period of the stay.” Moreover, Code of Civil Procedure

section 697.050 provides, “If a lien created pursuant to this division is extinguished,

property held subject to the lien shall be released . . . . ” It is undisputed that this factual

scenario is at issue in this case. The sheriff’s levy on the debtor’s account created an

execution lien; the debtor’s notice of appeal and appeal bond stayed the action and

extinguished the lien; the extinguishment of the lien required that the levied property be

released to the debtor. However, the property was not released to the debtor, and was,

instead, disbursed to the creditor. The parties do not refer to, and independent research

has not disclosed, any case authority supporting the proposition that a court can order

the return of funds once disbursed, however erroneously, by the levying officer to the

creditor. Indeed, all of the authority is to the contrary.




                                               7
       In Del Riccio v. Superior Court (1952) 115 Cal.App.2d 29 (Del Riccio), the court

was concerned with a statutory scheme whereby once funds were in the hands of the

levying officer, the funds were, in fact, the property of the judgment creditor. In that

case, the trial court issued an order staying further execution of the judgment, after

funds had been levied pursuant to a writ of execution. The question before the court

was whether the trial court could stay execution after the funds had already been levied.

(Id. at pp. 29-31.) The court answered the question in the negative. The court

explained, “There can be no doubt as to the power of the court to control further

proceedings while the execution is outstanding, but we think the court was without

power to take control of the money of petitioners by ordering the sheriff not to pay it

over as he was legally bound to do. The court would not have had authority to order the

petitioners to pay the money into court after they had received it, and yet the orders in

question accomplished a seizure by taking control of the fund. [¶] In the exercise of

equitable jurisdiction the court undoubtedly has broad discretionary powers to take

whatever action is necessary in the interests of justice in order that its decrees will not

fail to accomplish their purpose. Here, no appeal was made to the equitable powers of

the court. A stay of execution was proper—the code provides for it—but the court

could not, by ordering a stay, undo what had already been done so as to deprive the

creditor of ownership and use of money collected under the writ.” (Id. at p. 31.)

       While the instant statutory scheme provides that levied funds in the hands of the

sheriff can, in fact, be ordered to be released to the debtor when a stay is effectuated, the

language of Del Riccio with respect to funds in the hands of creditors is still valid. “The


                                              8
court would not have had authority to order the petitioners to pay the money into court

after they had received it . . . . ” (Del Riccio, supra, 115 Cal.App.2d at p. 31.) Indeed,

CCB cites favorably to Del Riccio for the proposition that, “in the absence of statutory

authority a court cannot undo what has already been done so as to deprive a judgment

creditor of ownership and use of money collected under a writ of execution.” (CCB,

supra, 8 Cal.App.4th at p. 584.) Although there is statutory authority for the

proposition that a stay (arising from a perfected appeal and undertaking) results in the

extinguishment of judgment liens, the inability to create further liens, and the release of

property held subject to the liens, there is no statutory authority for the proposition that

property disbursed to a creditor after a lien has been extinguished can be ordered to be

returned.

       Language in another case confirms the result. In Estate of Neilson (1960)

181 Cal.App.2d 769, the appellate court issued a writ of supersedeas to restrain the

sheriff from disbursing levied funds to a judgment creditor when execution had been

stayed by appeal. The court noted, “As long as the funds have not been paid over to the

[creditor], this court may issue supersedeas to prevent execution in violation of the

statutory stay.” (Id. at p. 774.)

       We are not unmindful of the situation in which the debtor finds itself. As it

timely filed a notice of appeal and sufficient appeal bond, enforcement efforts were

stayed. Having informed the sheriff of these filings, it assumed that the sheriff would




                                              9
cease further enforcement efforts and release the funds to it.12 However, the debtor had

a more conclusive remedy; it could have sought an order from the court recalling and/or

quashing the writ of execution and releasing the liens. (CCB, supra, 8 Cal.App.4th at

p. 587; Curley v. Superior Court (1962) 199 Cal.App.2d 369, 371; Ahart, Cal. Practice

Guide: Enforcing Judgments and Debts (The Rutter Group 2012) ¶ 6:613, p. 6D-70;

cf. Brown v. Kennard (2001) 94 Cal.App.4th 40, 50 [when a party wrongfully executes

on exempt funds, the litigation privilege bars an action for abuse of process; the proper

remedy would have been to move to quash the wrongful writ of execution and levy].)

The debtor failed to seek court intervention until the funds had already been disbursed

to the creditor. At that point, the court had no authority to order the funds returned to it.




12
       There is some authority for the proposition that informing the sheriff is
insufficient under these circumstances. In O’Brien v. Thomas (1937) 21 Cal.App.2d
Supp. 765, the creditor attached funds subsequently claimed by a third party. The trial
court ruled in favor of the third party, and ordered the marshal to release the funds to the
third party. The creditor informed the levying deputy that it would be filing an appeal,
and the deputy responded that he would hold the money until the outcome of the appeal.
The creditor was successful on appeal, only to learn that the marshal had released the
funds to the third party. When the creditor sued the marshal, the Court of Appeal ruled
against him, stating that the creditor, “made no effort to preserve the status quo other
than to tell a deputy marshal that an appeal would be taken from the judgment.
A conversation with a deputy marshal cannot fulfill the function of an application to and
order by the court.” (Id. at p. 768; but see Yuen v. McMann (1893) 99 Cal. 497,
500-501 [upon notice of perfection of an appeal, it is the duty of the sheriff to release
property from levy].)

                                             10
                                     DISPOSITION

       The petition for writ of mandate is denied. Fusion, the creditor, shall recover its

costs in these proceedings.



       CERTIFIED FOR PUBLICATION




                                                                CROSKEY, Acting P. J.

WE CONCUR:




       KITCHING, J.




       ALDRICH, J.




                                            11
