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    Robert J. Henderson Anita E. Henderson v. Robert Gruntz v. Charlene Weir, Third-Party Defendant-Counter-Claimant-Appellant, 947 F.2d 950, 3rd Cir. (1991)

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    1) Charlene Weir appealed the denial of her application to release a racehorse seized pursuant to a writ of execution to satisfy a default judgment against her husband Robert Gruntz. 2) The court construed Weir's application as a motion for reconsideration under Rule 60(b) and reviewed the denial for abuse of discretion. 3) The court determined that California's procedures for third party claims in execution of judgments satisfied due process and afforded Weir a hearing on her claim of ownership, so the underlying judgment was not void. The denial of Weir's motion was therefore affirmed.

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    Robert J. Henderson Anita E. Henderson v. Robert Gruntz v. Charlene Weir, Third-Party Defendant-Counter-Claimant-Appellant, 947 F.2d 950, 3rd Cir. (1991)

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    1) Charlene Weir appealed the denial of her application to release a racehorse seized pursuant to a writ of execution to satisfy a default judgment against her husband Robert Gruntz. 2) The court construed Weir's application as a motion for reconsideration under Rule 60(b) and reviewed the denial for abuse of discretion. 3) The court determined that California's procedures for third party claims in execution of judgments satisfied due process and afforded Weir a hearing on her claim of ownership, so the underlying judgment was not void. The denial of Weir's motion was therefore affirmed.

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    Filed: 1991-10-25 Precedential Status: Non-Precedential Citations: 947 F.2d 950 Docket: 89-55230

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    1) Charlene Weir appealed the denial of her application to release a racehorse seized pursuant to a writ of execution to satisfy a default judgment against her husband Robert Gruntz. 2) The court construed Weir's application as a motion for reconsideration under Rule 60(b) and reviewed the denial for abuse of discretion. 3) The court determined that California's procedures for third party claims in execution of judgments satisfied due process and afforded Weir a hearing on her claim of ownership, so the underlying judgment was not void. The denial of Weir's motion was therefore affirmed.

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    117 views3 pages

    Robert J. Henderson Anita E. Henderson v. Robert Gruntz v. Charlene Weir, Third-Party Defendant-Counter-Claimant-Appellant, 947 F.2d 950, 3rd Cir. (1991)

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    1) Charlene Weir appealed the denial of her application to release a racehorse seized pursuant to a writ of execution to satisfy a default judgment against her husband Robert Gruntz. 2) The court construed Weir's application as a motion for reconsideration under Rule 60(b) and reviewed the denial for abuse of discretion. 3) The court determined that California's procedures for third party claims in execution of judgments satisfied due process and afforded Weir a hearing on her claim of ownership, so the underlying judgment was not void. The denial of Weir's motion was therefore affirmed.

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    of 3

    947 F.

    2d 950

    NOTICE: Ninth Circuit Rule 36-3 provides that dispositions


    other than opinions or orders designated for publication are
    not precedential and should not be cited except when relevant
    under the doctrines of law of the case, res judicata, or collateral
    estoppel.
    Robert J. HENDERSON; Anita E. Henderson, PlaintiffsAppellees,
    v.
    Robert GRUNTZ, Defendant,
    v.
    Charlene WEIR, Third-party defendant-counter-claimantAppellant.
    No. 89-55230.

    United States Court of Appeals, Ninth Circuit.


    Submitted Oct. 7, 1991.*
    Decided Oct. 25, 1991.

    Before SCHROEDER, LEAVY and FERNANDEZ, Circuit Judges.

    1MEMORANDUM**
    2

    Charlene Weir Gruntz (Weir) appeals from the magistrate judge's order
    denying her ex parte application to release certain property seized pursuant to a
    writ of execution. The district court granted Robert and Anita Henderson (the
    Hendersons) a default judgment against Robert Gruntz (Gruntz), Weir's
    husband, and issued a writ of execution upon a racehorse owned by Gruntz to
    satisfy the judgment. Weir asserts that she, not Gruntz, owns the racehorse and
    that the magistrate judge erred in denying her application. We affirm.

    The Hendersons moved this court to dismiss Weir's appeal as untimely. They
    argued that Weir had failed to appeal the final judgment on her third party
    claim within 30 days. Fed.R.App.P. 4(a)(1). However, we construed Weir's ex

    parte application as a motion to reconsider the judgment pursuant to


    Fed.R.Civ.P. 60(b) and held that her appeal was timely filed. Accordingly, we
    treat Weir's appeal as an appeal from a denied Rule 60(b) motion.
    4

    A decision regarding a motion to reconsider pursuant to Fed.R.Civ.P. 60(b) is


    reviewed for an abuse of discretion. Molloy v. Wilson, 878 F.2d 313, 315 (9th
    Cir.1989).

    DISCUSSION
    5

    Weir cannot challenge the magistrate judge's underlying decision on her third
    party claim because she failed to file notice of appeal of that determination
    within the 30 day limit of Fed.R.App.P. 4(a)(1). The appeal of a court's denial
    of a Rule 60(b) motion does not bring up the underlying judgment for review;
    only the decision on the 60(b) motion will be reviewed for an abuse of
    discretion. Floyd v. Laws, 929 F.2d 1390, 1400 (9th Cir.1991); Cel-A-Pak v.
    California Agric. Labor Relations Bd., 680 F.2d 664, 668 (9th Cir.), cert.
    denied, 459 U.S. 1071, 103 S.Ct. 491, 74 L.Ed.2d 633 (1982).

    Weir contends that the California codes pursuant to which her third party claim
    was heard1 provide for a summary proceeding that did not empower the
    magistrate judge to determine ownership of the seized property, and she
    contends that the proceeding denied her due process. As a result, she claims,
    the decision was void. Fed.R.Civ.P. 60(b)(4).

    The California codes governing executions of judgments enable courts to "give


    a quick and effectual remedy to third parties whose property has been levied on
    by mistake and to protect the officer who makes such levy." Rubin v. Barasch,
    275 Cal.App.2d 835, 836-37, 80 Cal.Rptr. 337, 339 (1969). A hearing is held to
    determine the validity of the third party claim. Cal.Civ.Proc.Code 720.310 et
    seq. The third party claimant may present evidence and testimony to establish
    ownership; the judgment creditor and judgment debtor may cross-examine the
    third party claimant's witnesses and present other evidence to rebut the claim.
    The court's determination of ownership at the close of the hearing is conclusive
    between the parties to the proceeding. Cal.Civ.Proc.Code 720.390; Embree
    Uranium Co. v. Liebel, 169 Cal.App.2d 256, 258-59, 337 P.2d 159 (1959).

    The California courts have long held that the state's judgment execution law
    does not deny third party claimants due process. In McCoy v. Justice's Court,
    23 Cal.App.2d 99, 101-102, 71 P.2d 1115 (1937), the California Court of
    Appeal held that Cal.Civ.Proc.Code 689, the predecessor statute to the current

    code sections governing third party claims, satisfied due process. See also,
    Fulton v. Webb, 39 Cal.App.2d 509, 512, 103 P.2d 596 (1940). Weir points to
    no authority which declares that third party claimants are entitled to all of the
    accounterments of full-blown litigation.2 "The third party claimant chose her
    remedy and has had her day in court." Fulton, 39 Cal.App.2d at 512.
    9

    The magistrate judge conducted a hearing under California law and determined
    that Weir did not own the horse. Weir did not appeal. That judgment is not
    void.

    10

    AFFIRMED.

    The panel finds this case appropriate for submission without oral argument
    pursuant to 9th Cir.R. 34-4 and Fed.R.App.P. 34(a)

    **

    This disposition is not appropriate for publication and may not be cited to or by
    the courts of this circuit except as provided by 9th Cir.R. 36-3

    Federal Rules of Civil Procedure do not provide for the execution of levies to
    satisfy money judgments. Therefore, state law governs the practice and
    procedure to be followed in the execution of a money judgment. Fed.R.Civ.P.
    69(a). In this case, California law, Cal.Civ.Proc.Code 680.010 et seq. governs

    In fact, section 720.410 expressly denies third-party claimants the right to a jury
    trial

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