Isbell v. County of Sonoma

577 P.2d 188, 21 Cal. 3d 61, 145 Cal. Rptr. 368, 1978 Cal. LEXIS 211

• Court: California Supreme Court
• Decided: April 24, 1978
• Docket: S.F. 23604
• Status: Published

Opinions

Opinion

TOBRINER, J.

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

1. Summary of facts.

Although confessions of judgment are usually employed to enforce claims of private creditors, the instant action presents perhaps a more doubtful usage. In 1966 and 1967, each of the plaintiffs was a Sonoma County welfare recipient.¹ Plaintiff Isbell pleaded guilty to welfare fraud and was sentenced to 30 days in jail. Because the court did not order restitution, a county representative visited Isbell at the jail on January 27, 1967, and induced her to execute a confession of judgment for the alleged overpayment, $596.98 “plus medical to be determined.” The county filed this document with the clerk of the municipal court, which then issued a judgment against Isbell. The county recorded an abstract of the judgment; thus when Isbell purchased a house in 1974, the judgment became a lien on that realty.

Although plaintiffs Clevie and Omega Pearson were not charged with a criminal offense, the county claimed their alleged misuse of trust funds rendered such funds additional income to the Pearsons, and thus that the Pearsons had received excess welfare payments. On February 8, 1966, the Pearsons, at the behest of a county representative, executed a confession of judgment for $193, the amount of the alleged overpayment.² The county filed this document with the municipal court clerk, who entered judgment for the confessed sum on February 16, 1966. The county subsequently recorded an abstract of the judgment and has attempted to collect the judgment debt.

Neither Isbell nor the Pearsons were advised by counsel before signing the confessions of judgment. The parties have stipulated that plaintiffs “are lay persons with no training or background in matters of law and have only a lay person’s understanding of the légal consequences of a confession of judgment.” The parties finally stipulated that “There is an actual and present controversy between plaintiffs and defendants. Plaintiffs contend that the California laws authorizing and governing confession of judgment are unconstitutional, but defendants deny and dispute this.”

On the basis of the stipulated facts, without receiving additional evidence, the trial court entered a declaratory judgment holding that a confession of judgment obtained in conformity with Code of Civil Procedure sections 1132 to 1134 did not violate due process, and consequently that the judgments rendered to the county against plaintiffs are valid. Plaintiffs appeal from that judgment.

2. A judgment based solely upon an executed confession is constitutionally defective because that confession is insufficient to demonstrate that the debtor has voluntarily, knowingly, and intelligently waived his due process rights.

The striking feature of the confession of judgment at common law lies in its authorization for entry of final judgment against a debtor without notice, hearing, or opportunity to defend. As we explained in Hulland v. State Bar (1972) 8 Cal.3d 440, 449 [105 Cal.Rptr. 152, 503 P.2d 608]: “a confession of judgment . .. puts at the disposal of the creditor the most drastic of enforcement proceedings. [It] forecloses the presentation of any possible defense or controversy for judicial resolution; to the contrary it is a personal admission of a debt obligation upon which the court places its primatur.” The New York Court of Appeals described confessed judgments as “ ‘the loosest way of binding a man’s property that ever was devised in any civilized country.’ ” (Atlas Credit Corporation v. Ezrine (1969) 25 N.Y.2d 219 [303 N.Y.S.2d 382, 250 N.E.2d 474, 478], quoting Alderman v. Diamet (1828) 7 N.J.L. 197, 198.)

California’s confession of judgment statutes, enacted in 1851 and codified in 1872, follow common law practice with the notable exception that they do not permit an attorney to confess judgment on behalf of the defendant. (See Barnes v. Hilton (1953) 118 Cal.App.2d 108, 110-111 [257 P.2d 98].) Code of Civil Procedure section 1132, subdivision (a), provides generally that “A judgment by confession may be entered without action either for money due or to become due, or to secure any person against contingent liability on béhalf of the defendant, or both, in the manner prescribed by this chapter. Such judgment may be entered in any court having jurisdiction for like amounts.” Section 1133 specifies that the confession must be in writing, verified by the defendant, and must state concisely the facts constituting the liability.³ The creditor files the judgment with the court clerk, “who must endorse upon it, and enter a judgment of such court for the amount confessed” (Code Civ. Proc., § 1134).

In recent years the Legislature has enacted numerous statutes limiting the use of confessions of judgment. The Financial Code prohibits the use of confessions of judgment by industrial loan companies (§ 18673), licensees under the California small loan law (§ 24468), and licensees under the personal property broker law (§ 22467). Civil Code section 1689.12 voids any cognovit provision in a home solicitation contract.⁴ Finally in 1975 the Legislature added subdivision (b) to Code of Civil Procedure section 1132, providing that in any sale or loan primarily for personal, family, or household use, the clerk may enter judgment on a confession only if an attorney independently representing the defendant certifies that he has advised the defendant with respect to the waiver of rights and defenses and has recommended the use of the confession of judgment procedure.

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

It is settled constitutional law that “in every case involving a deprivation of property within the purview of the due process clause, the Constitution requires some form of notice and a hearing.” (Beaudreau v. Superior Court (1975) 14 Cal.3d 448, 458 [121 Cal.Rptr. 585, 535 P.2d 713]; see Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 306, 313 [94 L.Ed. 865, 872-873, 70 S.Ct. 652].) Notice and hearing must always precede entry of a final judgment depriving one of property (see Mathews v. Eldridge (1976) 424 U.S. 319, 333 [47 L.Ed.2d 18, 32, 96 S.Ct. 893]; Kash Enterprises, Inc. v. City of Los Angeles (1977) 19 Cal.3d 294, 307 [138 Cal.Rptr. 53, 562 P.2d 1302]); indeed, except in extraordinary circumstances notice and hearing are required before even a temporary deprivation of property. (Fuentes v. Shevin (1972) 407 U.S. 67, 80-82 [32 L.Ed.2d 556, 569-571, 92 S.Ct. 1983]; Brooks v. Small Claims Court (1973) 8 Cal.3d 661 [105 Cal.Rptr. 785, 504 P.2d 1249].) A confession of judgment, as we have explained, purports to authorize entry of judgment without prior notice and hearing. Consequently all courts agree that a judgment entered pursuant to such a confession is constitutional only if the confession constitutes a valid waiver of the debtor’s due process rights. (See D. H. Overmyer Co. v. Frick Co. (1972) 405 U.S. 174, 184-188 [31 L.Ed.2d 124, 133-136, 92 S.Ct. 775]; Tunheim v. Bowman (D.Nev. 1973) 366 F.Supp. 1392; Scott v. Danaher (N.D.Ill. 1972) 343 F.Supp. 1272; Irmco Hotels Corp. v. Solomon (1975) 27 Ill.App.3d 225 [326 N.E.2d 542].)

Since the relevant statutes direct the clerk to enter judgment upon the creditor’s presentation of a verified confession, the crucial issue becomes whether that document itself demonstrates that the debtor has in fact made a voluntary, knowing, and intelligent waiver. In resolving that issue, we are guided by well-established constitutional principles: that waiver of constitutional rights is not presumed (D. H. Overmyer Co. v. Frick Co., supra, 405 U.S. 174, 186 [31 L.Ed.2d 124, ]; Ohio Bell Tel Co. v. Comm'n. (1937) 301 U.S. 292, 307 [81 L.Ed. 1093, 1103, 57 S.Ct. 724]); on the contrary, “ ‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights” (Johnson v. Zerbst (1938) 304 U.S. 458, 464 [82 L.Ed. 1461, 1466, 58 S.Ct. 1019, 146 A.L.R. 357]; Scott v. Danaher, supra, 343 F.Supp. 1272, 1277; Blair v. Pitchess (1971) 5 Cal.3d 258, 274 [96 Cal.Rptr. 42, 486 P.2d 1242, 45 A.L.R.3d 1206].)

We look first to the question whether the debtor’s, assent to the confession demonstrates the voluntary character of his waiver of due process rights. Cognovit clauses most commonly appear in form contracts dictated by the party with a bargaining advantage. (See 70 Colum.L.Rev. (1970) 1118, 1130-1131; see generally Hopson, Cognovit Judgments: An Ignored Problem of Due Process and Full Faith and Credit (1961) 29 U.Chi.L.Rev. 111, 138, fn. 166.) Thus when the United States Supreme Court in D. H. Overmyer Co. v. Frick Co., supra, 405 U.S. 174, held in the context of a cognovit agreement negotiated between equal bargainers that confessions of judgment were not per se unconstitutional, it added the following caveat: “Our holding ... is not controlling precedent for other facts of other cases. For example, where the contract is one of adhesion, where there is great disparity in bargaining power, and where the debtor receives nothing for the cognovit provision, other legal consequences may ensue.” (405 U.S. at p. 188 [31 L.Ed.2d at p. 135].) In Hulland v. State Bar, supra, 8 Cal.3d 440, we observed that this caveat casts “serious doubt on the constitutionality ... of cognovit clauses contained in contracts of adhesion, in which there is great disparity in bargaining power and the debtor receives nothing for the cognovit provision.” (8 Cal.3d at p. 450; see also Blair v. Pitchess, supra, 5 Cal.3d at p. 275.)

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

By parity of reasoning, the debtor’s assent to a contract of adhesion with a cognovit clause, or to a confession of judgment form presented by the creditor, cannot operate as a valid waiver of constitutional rights. But even if the terms of the confession are not dictated by the creditor, the drastic nature of the device—the debtor’s advance waiver of all possible defenses and even the right to be notified of the existence of the proceeding—strongly suggests a substantial disparity in bargaining position and implies overreaching on the part of the creditor. Thus except in the rare case in which the cognovit agreement itself shows that it was a negotiated agreement between equal bargainers, as in D. H. Overmyer Co. v. Frick Co., supra, 405 U.S. 174, a court presented only with the verified confession of judgment cannot assume the voluntariness of any waiver of due process rights implicit in that confession.

The debtor’s execution of the confession of judgment equally fails to establish a knowing and intelligent waiver of constitutional rights. Although the face of the document itself often will not reveal the debtor’s lack of legal sophistication, historical experience shows that confessions of judgment are most frequently employed against those who are unaware of the significance of that procedure. (See Swarb v. Lennox (E.D.Pa. 1970) 314 F.Supp. 1091; Hopson, op. cit. supra, 29 U.Chi.L.Rev. 111.) Many courts and commentators have observed that persons who sign confessions of judgment often do not realize that they are not only waiving their rights to notice and hearing, but as well the opportunity of presenting any defense to the claim. (See Virgin Islands National Bank v. Tropical Ventures, Inc. (D.V.I. 1973) 358 F.Supp. 1203, 1206; Scott v. Danaher, supra, 343 F.Supp. 1272, 1278; Osmond v. Spence (D.Del. 1971) 327 F.Supp. 1349, 1359; Pyes, Reappraisal of the Confession of Judgment Law (1960) 48 Ill. Bar J. 764, 769.) Thus the debtor’s signature on the confession of judgment creates no inference that the debtor knowingly and intelligently waived his due process rights.

Because of the high risk of an involuntary, unknowing and unintelligent waiver, we held in Hulland v. State Bar, supra, 8 Cal.3d 440, that an attorney could not use a confession of judgment to collect legal fees; we stated that the use of a confession of judgment “creates a situation in which the client’s ignorance of legal matters makes it unlikely that he will understand the character and effect of the instrument.” (8 Cal.3d at p. 450.) When the Legislature amended Code of Civil Procedure section 1132 to provide that in a consumer transaction the proposed judgment must be accompanied by the certificate of independent counsel that he has advised defendant of his rights and advised him to sign the confession, it also recognized that these requirements are impelled by predicates of due process of law. As the Attorney General explained, this amendment rests on the rationale that “confessions of judgment are special cases” in which lay knowledge does not adequately ensure a knowing and voluntary waiver. (59 Cal.Ops.Atty.Gen. 432, 438 (1976).)

In sum, sad experience has shown that the confession of judgment procedure lends itself to overreaching, deception, and abuse. Such a confession cannot on its face represent a voluntary, knowing and intelligent waiver.

Defendants point out that some confessions may in fact evidence a voluntary, knowing, and intelligent waiver by the debtor; thus the sufficiency of a confession to justify entry of judgment, they argue, must be determined on a case by case basis. The California statutes, however, do not provide for a case by case determination of the validity of the debtor’s waiver. Code of Civil Procedure sections 1133 and 1134 direct the court clerk to enter judgment upon all written confessions which state the amount due and the basis for the debt. The clerk is not a judicial officer (Lane v. Pellissier (1929) 208 Cal. 590, 593 [283 P. 810]; People v. Kuder (1928) 90 Cal.App. 594, 600 [266 P. 337]); he has no authority to reject confessions on the ground that they do not adequately prove a constitutionally valid waiver (cf. Oliphant v. Whitney (1867) 34 Cal. 25, 27; Rose v. Lelande (1912) 20 Cal.App. 502, 503 [129 P. 599]). In short, the California statutes do not permit a prejudgment judicial determination of the validity of the debtor’s waiver, but require the clerk to enter judgment upon a document which is ordinarily insufficient to demonstrate a valid waiver. Thus a judgment entered pursuant to the California procedure is constitutionally defective.

3. The debtor’s opportunity to seek postjudgment relief does not cure the unconstitutionality of a judgment by confession entered without sufficient proof of a valid waiver of the debtor’s due process rights.

We reject defendants’ contention that a debtor’s opportunity to attack a confessed judgment by motion filed after entry of judgment is an adequate remedy.⁵ In Payne v. Superior Court (1976) 17 Cal.3d 908, 911 [132 Cal.Rptr. 405, 553 P.2d 565], we observed that “Few liberties in America have been more zealously guarded than the right to protect one’s property in a court of law. This nation has long realized that none of our freedoms would be secure if any person could be deprived of his possessions without an opportunity to defend them 'at a meaningful time and in a meaningful manner.’ ” (Citing Fuentes v. Shevin, supra, 407 U.S. 67, 80 [32 L.Ed.2d 556, 570].) (Italics added.)

A postjudgment determination of the validity of the debtor’s waiver is not a determination “at a meaningful time.” Once judgment has entered, the damage is done; the debtor is now subject to an obligation imposed in violation of his due process rights, and the creditor can immediately employ legal process to enforce that obligation.⁶ Thus as the court explained in Osmond v. Spence, supra, 359 F.Supp. 124, 127, unless the validity of the waiver is determined “before the judgment is entered, an alleged debtor will be deprived of his due process rights on every occasion when an effective waiver has not occurred.”

California’s confession of judgment statutes, moreover, do not even provide for a postjudgment determination of the validity of the waiver. The debtor’s only remedies are (1) to move to set aside the judgment under Code of Civil Procedure section 473—a remedy available only if, despite the absence of notice, he learns of the judgment and files his motion within six months of entry of judgment—or (2) to act to set aside a judgment procured by extrinsic fraud (see Code Civ. Proc., § 473; Olivera v. Grace (1942) 19 Cal.2d 570, 575 [122 P.2d 564]). As we pointed out in Kash Enterprises, Inc. v. City of Los Angeles, supra, 19 Cal.3d 294, 309, “[n]ot one of the scores of recent procedural due process decisions . .. suggests that the availability of a collateral judicial remedy can sustain a . .. procedure” which provides for no judicial determination whatsoever, either before or after the taking.

Defendants do not take issue with the principles and the reasoning which lead us to conclude that a confessed judgment based solely upon the debtor’s signature to a cognovit agreement is constitutionally defective, and that the debtor’s opportunity to seek postjudgment relief does not cure that defect. Instead, defendants argue from precedent, contending that the United States Supreme Court decision in D. H. Overmyer Co. v. Frick Co., supra, 405 U.S. 174, definitely establishes the constitutionality of the challenged California confession of judgment procedure.

Although defendants seek to equate Overmyer and the instant matter, the cases are distinguishable in several relevant respects. First, the Ohio statutory procedure at issue in Overmyer provided a debtor with a number of procedural and substantive safeguards unavailable under California procedure. Thus, while in California a debtor receives no notice at the time the confession of judgment is entered so as to permit him to make a speedy attack on the judgment, the Ohio statutes required the court clerk to give a judgment debtor notice of the entry of the confessed judgment. (See 405 U.S. at p. 175, fn. 1 [31 L.Ed.2d at p. 128].) Moreover, whereas California procedure permits a postjudgment attack on a confession of judgment only upon specified procedural grounds, the Ohio procedure enabled a judgment debtor to overturn a confessed judgment whenever the debtor could show the existence of a valid defense on the merits. (See 405 U.S. at p. 188 [31 L.Ed.2d at pp. 135-136]; see also Billingsley v. Lincoln National Bank (1974) 271 Md. 683 [320 A.2d 34]; Irmco Hotels Corp. v. Solomon, supra, 326 N.Ed.2d 542.) Consequently, the statutory procedure upheld in Overmyer was not nearly as harsh in operation as the California procedure at issue here.

Second, and perhaps more significantly, the Overmyer decision nowhere addresses the issue, crucial to the present case, whether the Ohio statutes established a constitutionally adequate procedure for assuring that a valid waiver of constitutional rights had occurred. In Overmyer the judgment debtor did not attack the adequacy of the record, but instead broadly claimed that an individual could never validly waive all rights to notice and hearing through a confession of judgment agreement. The Overmyer decision went no further than to reject this broad proposition and to hold on the facts before it that D. H. Overmyer Co., a large corporation which entered into a negotiated cognovit agreement in return for valuable consideration, had “voluntarily, intelligently and knowingly” waived its constitutional rights. (405 U.S. at p. 187 [31 L.Ed.2d at p. 135]; see Swarb v. Lennox, 405 U.S. 191, 201-202 [31 L.Ed.2d 138, 146-147, 92 S.Ct. 767].)

Since it is axiomatic that “cases are not authority for propositions not considered therein” (Worthley v. Worthley (1955) 44 Cal.2d 465, 472 [283 ]), we conclude that Overmyer did not resolve that a confession of judgment procedure which requires the entry of judgment without a sufficient showing of a valid waiver is consonant with due process. (See Osmond v. Spence, supra, 359 F.Supp. 124; Virgin Islands National Bank v. Tropical Ventures, Inc., supra, 358 F.Supp. 1203; cf. Scott v. Danaher, supra, 343 F.Supp. 1272; but see Tunheim v. Bowman, supra, 366 F.Supp. 1392; Irmco Hotels Corp. v. Solomon, supra, 326 N.E.2d 542; Billingsley v. Lincoln National Bank, supra, 320 A.2d 34.) Overmyer therefore does not conflict with our conclusion that the California confession of judgment procedure is constitutionally infirm.

4. Our holding that the California confession of judgment procedure is constitutionally defective should be given limited retroactive effect.

Having concluded that the California confession of judgment procedure is constitutionally defective, we hold that after this decision becomes final no court may enter a confessed judgment pursuant to that procedure.⁷ A question remains, however, as to the application of this decision to judgments entered prior to the finality of this opinion. As we explained in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119 Cal.Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393], no hard and fast rules determine the extent to which a decision is given retroactive effect; “determinations of this nature turn on considerations of fairness and public policy.” (13 Cal.3d at p. 829.)

Such considerations of fairness and public policy militate against a fully retroactive application of the present decision. Although confessions of judgment have not found widespread use in California (see Barnes v. Hilton, supra, 118 Cal.App.2d 108, 111), judgments were -entered pursuant to that procedure, some of venerable age. In many of such cases the debtor owed the debt; in some the creditor has probably by this date collected all or part of the judgment. Little would be gained, and much confusion engendered, by a decision which would automatically void all such judgments. (Cf. In re Marriage of Brown (1976) 15 Cal.3d 838, 850-851 [126 Cal.Rptr. 633, 544 P.2d 561].)

On the other hand, many of those existing judgments may well have been entered without a valid waiver of the debtor’s constitutional rights; and in some cases the debtors, believing they have a defense to the underlying obligation,, may seek to jeopen those proceedings. We therefore believe that our decision should be given a limited retroactive application to permit any judgment debtor to apply for a hearing challenging the validity of the waiver in his confession of judgment. At such a hearing the creditor, who must overcome the presumption against waiver of constitutional rights, bears the burden of proving the validity of the waiver;⁸ if he fails to sustain the burden the court must vacate the judgment.

Finally, as in Li v. Yellow Cab Co., supra, 13 Cal.3d 804, we conclude that the litigants before the court should be given benefit of our decision holding a judgment based on a confession invalid, in order “to provide incentive in future cases for parties who may have occasion to raise ‘issues involving renovation of unsound or outmoded legal doctrine.’ ” (13 Cal.3d at p. 830.)

The judgment is reversed and the cause remanded with directions to enter a declaratory judgment in favor of plaintiffs determining that the confession of judgment procedure of Code of Civil Procedure sections 1132, subdivision (a), 1133, and 1134 does not conform to the due process standards of the Fourteenth Amendment to the United States Constitution, and further determining that the judgment entered against plaintiff Isbell on January 27,1967 and the judgment entered against plaintiffs Pearson on February 16, 1966, are void.⁹

Bird, C. J., Mosk, J., and Thompson (Homer B.), J.,

* concurred.

1 The parties submitted the case for decision upon stipulated statements pursuant to Code of Civil Procedure section 1138. This section provides that “Parties to a question in difference, which might be the subject of a civil action, may, without action, agree upon a case containing the facts upon which the controversy depends, and present a submission of the same to any Court which would have jurisdiction if an action had been brought. . . . The Court must thereupon hear and determine the case, and render judgment thereon, as if an action were depending.”

2 Both Isbell and the Pearsons executed a confession of judgment form furnished by the County. This form provides: “I hereby confess judgment in favor of the County of Sonoma, the plaintiff above named, for the sum of $-, and authorize entry of judgment thereof against me. This judgment applies to any personal and real property I now own or may acquire. [1] This confession of judgment is for a debt justly due from me to the said County of Sonoma, and arises upon the following facts: to wit _.”

3 Section 1133 reads as follows: “A statement in writing must be made, signed by the defendant, and verified by his oath, to the following effect:

“1. It must authorize the entry of judgment for a specified sum;

“2. If it be for money due, or to become due, it must state concisely the facts out of which it arose, and show that the sum confessed therefor is justly due, or to become due;

“3. If it be for the purpose of securing the plaintiff against a contingent liability, it must state concisely the facts constituting the liability, and show that the sum confessed therefor does not exceed the same.”

4 Civil Code section 1804.1 states that no retail installment sale contract may include “a power of attorney ... to confess judgment”; section 2983.7 similarly provides that no automobile conditional sales contract may include “a power of attorney .... to confess judgment.” Since Code of Civil Procedure section 1132 does not permit, confession of judgment by warrant of attorney in any case (see Barnes v. Hilton, supra, 118 Cal.App.2d 108, 110-111), it is unclear whether sections 1804.1 and 2983.7 impose any additional restrictions on the use of confessions of judgment.

5 We distinguish Mitchell v. W. T. Grant Co. (1974) 416 U.S. 600 [40 L.Ed.2d 406, 94 S.Ct. 1895] and Connolly Development, Inc. v. Superior Court (1976) 17 Cal.3d 803 [132 Cal.Rptr. 477, 553 P.2d 637], Both decisions upheld the constitutionality of statutes permitting a temporary taking of specific property in which the creditor claimed an interest without prior notice and hearing. The confession of judgment statutes, in contrast, permit entry of a final judgment, pursuant to which the creditor can levy upon any nonexempt property of the debtor without notice or hearing or a knowing and intelligent waiver of that right.

6 Osmond v. Spence (D.Del. 1972) 359 F.Supp. 124; Virgin Islands National Bank v. Tropical Ventures, Inc., supra, 358 F.Supp. 1203. Courts in Illinois and Pennsylvania have reached a slightly different conclusion than stated in the text, holding that the debtor is entitled to a determination of the validity of the waiver before execution of judgment. (Scott v. Danaher, supra, 343 F.Supp. 1272; Chittester v. LC-DC-F Employees of G. E. Fed. Cr. Un. (W.D.Pa. 1974) 384 F.Supp. 475; North Penn Consumer Discount Co. v. Shultz (1977) — Pa.Super. — [378 A.2d 1275].)

7 Since the instant case does not involve a consumer transaction within the scope of Code of Civil Procedure section 1132, subdivision (b), we do not here decide the constitutionality of judgments entered pursuant to that provision.

8 Courts of other jurisdictions have disagreed as to whether the debtor or the creditor bears the burden of proof in a postjudgment hearing concerning the validity of the debtor's waiver. (Compare Osmond v. Spence, supra, 359 F.Supp. 124, 127 with Virgin Islands National Bank v. Tropical Ventures, Inc., supra, 358 F.Supp. 1203 and Irmco Hotels Corp. v. Solomon, supra, 326 N.E.2d 542.) We believe this issue was correctly resolved in the Court of Appeal opinion below, and therefore adopt that court’s language, which stated that: “In Blair v. Pitchess, supra, 5 Cal.3d 258 at page 274, the Supreme Court held that ‘Where government officials rely on consent to justify the lawfulness of a search, the burden is on them to show by clear and positive evidence that the consent was freely, voluntarily and knowledgeably given.’. . . Although Blair involved the waiver of Fourth Amendment rights, its rationale is nevertheless controlling here. Due process rights are no less fundamental than the Fourth Amendment protection against unreasonable searches and seizures, and the presumption against waiver is equally applicable to the constitutional guarantee of notice and hearing. Thus where a creditor relies upon waiver of due process rights, he should be charged with proving that the waiver was valid.”

9 We hold here only that sections 1132, subdivision (a), 1133, and 1134 of the Code of Civil Procedure enact an unconstitutional procedure. The validity of judgments entered pursuant to stipulation or agreement under the authority of other statutes or rules of court is not before us in the present case, and we do not imply that such judgments are void.

Assigned by the Chairperson of the Judicial Council.