Joseph Padgett v. Brian Loventhal

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 15, 2022
• Docket: 20-15246
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 15 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSEPH PADGETT, No. 20-15246

Plaintiff-Appellant, D.C. No. 5:04-cv-03946-EJD

v. MEMORANDUM* BUSTAMANTE & GAGLIASSO, P.C.,

Movant-Appellee,

A. CURTIS WRIGHT,

Defendant-Appellee,

and

BRIAN LOVENTHAL,

Defendant.

Appeal from the United States District Court for the Northern District of California Edward J. Davila, District Judge, Presiding

Submitted April 13, 2022** San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: SILER,*** W. FLETCHER, and M. SMITH, Circuit Judges.

Joseph Padgett appeals from the district court’s post-judgment order declining

to compel the clerk of court to enter a renewed judgment in the amount Padgett

requested. We have jurisdiction pursuant to 28 U.S.C. § 1291. See Armstrong v.

Schwarzenegger, 622 F.3d 1058, 1064–65 (9th Cir. 2010). Because the parties are

familiar with the facts, we do not recount them here. We vacate the district court’s

order and remand with instructions to enter the renewed judgment.

The procedure for executing a judgment entered by a federal court “must

accord with the procedure of the state where the court is located, [unless] a federal

statute governs.” Fed. R. Civ. P. 69(a). Under California law, the clerk’s entry of a

renewed judgment “is an automatic, ministerial act.” Goldman v. Simpson, 72 Cal.

Rptr. 3d 729, 733 (Ct. App. 2008). Section 683.150 of the California Code of Civil

Procedure provides that “[u]pon the filing of the application, the court clerk shall

enter the renewal of the judgment in the court records.” (emphasis added). And the

commentary to Section 683.150 states that “Section 683.150 requires that the court

clerk enter the renewal of the judgment based on the application.” (emphasis added);

see also Altizer v. Highsmith, 265 Cal. Rptr. 3d 832, 836 (Ct. App. 2020) (quoting

this language favorably when describing the clerk’s role). Therefore, the clerk must

*** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

2 enter the renewed judgment. After the clerk does so, Wright may move to vacate the

judgment if Wright believes that the amount of the renewed judgment is incorrect.

Cal. Code. Civ. Proc. § 683.170(a). We express no opinion regarding the correct

judgment amount.

We decline to address when the interest to which Padgett is entitled began to

accrue because this issue was “not passed upon below.” Friedman v. AARP, Inc.,

855 F.3d 1047, 1057 (9th Cir. 2017).

VACATED and REMANDED with instructions to enter the renewed judgment.