Droeger v. Friedman7/29/1991
SUPREME COURT OF CALIFORNIA
No. S014984
1991.CA.40553 ; 283 Cal. Rptr. 584; 812 P.2d 931; 54 Cal. 3d 26
July 29, 1991
JOHN E. DROEGER, PLAINTIFF AND APPELLANT,
v.
FRIEDMAN, SLOAN & ROSS, DEFENDANT AND RESPONDENT
Superior Court of the City and County of San Francisco, No. 877550, Alex Saldamando, Judge.
Cory A. Birnberg and William A. Reppy, Jr., for Plaintiff and Appellant.
Friedman, Sloan & Ross, James A. Dorskind, Jeffrey S. Ross, Howard, Rice, Nemerovski, Canady, Robertson & Falk and Jerome B. Falk, Jr., for Defendant and Respondent.
Lorraine C. Gollub, Ronald Melin Supancic, Sandra Blair, James Scott Veltman, Ronald Rosenfeld, E. Stephen Temko, Denny Kershek, Frieda Gordon Daugherty and Diana Gould-Saltman as Amici Curiae on behalf of Defendant and Respondent.
Opinion by Panelli, J., with Lucas, C. J., Mosk, Broussard, Arabian and Baxter, JJ., concurring. Separate dissenting opinion by Kennard, J.
Panelli
We granted review to determine whether a security interest in community real property given by one spouse to secure attorney fees during a pending marital dissolution proceeding is valid under Civil Code
section 5127. Resolution of this question requires that we clarify the general rules governing transfers by one spouse in violation of section 5127.
We conclude that pursuant to section 5127, both spouses must consent to the transfer of community real property. Consequently, when a nonconsenting spouse, during the marriage, timely challenges a transfer made in violation of section 5127, the transfer is voidable. In the present case, after the parties had separated, Joanna Droeger unilaterally encumbered two parcels of community real property. Her husband, John E. Droeger, did not join in the execution of the encumbrance. Before the couple's marriage dissolution proceedings were completed, John Droeger challenged the validity of the encumbrance. As his consent was required under section 5127 to effect the encumbrance, we conclude that he is entitled to invalidate the encumbrance in its entirety.
I. Facts and Proceedings
In 1982, Joanna Droeger (Wife) commenced a marital dissolution proceeding against appellant John Droeger (Husband). Wife retained Friedman, Sloan & Ross (Friedman) as her counsel in the proceeding. In October 1986, Friedman moved in the family law court for an order awarding attorney fees and costs of over $50,000 pendente lite pursuant to section 4370, subdivision (a) (authorizing court orders for payment of attorney fees pendente lite). However, the court only granted the motion in part, awarding Friedman $9,600, and reserving consideration of the request for additional attorney fees and costs until the time of trial.
On November 3, 1986, Wife executed a promissory note in the amount of $31,158.66 in favor of Friedman for attorney fees and costs. On the same day, Wife executed a deed of trust on two parcels of the community's real property securing the note. Husband did not join in the execution of the note or the deed of trust.
Husband commenced action in superior court to quiet title to the community realty that is encumbered by the deed of trust. Relying on Mitchell v.
American Reserve Ins. Co. (1980) 110 Cal. App. 3d 220 [167 Cal. Rptr. 760]
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