Department 58

Hearing Date: October 27, 2023

Case Name: Duren v. Ocok, LLC

Case No.: 21STCV13389

Motion: Motion for an Assignment Order and Order Restraining Judgment Debtor

Moving Party: Plaintiff Patrice Duren’s Counsel of Record, Calhoun & Associates

Responding Party: None

Tentative Ruling: The Motion for Assignment Order and Order Restraining Judgment Debtor is denied.

On April 8, 2021, Plaintiff Patrice Duren (Plaintiff) filed a Complaint against Defendant Ocok, LLC, alleging a single cause of action for a violation of the Unruh Act (Civil Code section 51, et eq.). A default judgment was entered against Defendant Ocok, LLC on January 14, 2022, in the amount of $11,290.02 (Judgment).

On April 14, 2022, Plaintiff assigned the Judgment to her counsel of record, Calhoun & Associates (Judgment Creditor).

On September 27, 2023, Judgment Creditor now moves the Court for an order instructing the Defendant Ocok, LLC (Judgment Debtor) to assign its interest in current and future rental income, and all rights to payments thereunder, to the Judgment Creditor to the extent necessary to pay the Judgment in full, including accrued interest through the date of payment, and seeks a related restraining order to effectuate this assignment order. No opposition was filed.

The motion is denied.

DISCUSSION

Plaintiff moves for an assignment order for an interest in Judgment Debtor’s current and future rental income and a related restraining order pursuant to Code of Civil Procedure section 708.510, subdivision (a)(2) and 708.520, subdivision (b).

California law allows for an order assigning the judgment debtor's right to payments due from a third person to the judgment creditor. California Code of Civil Procedure section 708.510, subdivisions (a)-(b) provides, in relevant part:

“(a) Except as otherwise provided by law, upon application of the judgment creditor on noticed motion, the court may order the judgment debtor to assign to the judgment creditor ... all right or part of a right to payment due or to become due, whether or not the right is conditioned in future developments, including but not limited to the following types of payments:

...

(2) Rents.

...

(b) The notice of the motion shall be served on the judgment debtor. Service shall be made personally or by mail.

Code of Civil Procedure section 708.510, subdivision (c), further provides:

“[I]n determining whether to order an assignment or the amount of an assignment pursuant to subdivision (a), the court may take into consideration all relevant factors, including the following:

(1) The reasonable requirements of a judgment debtor who is a natural person and of persons supported in whole or in part by the judgment debtor.

(2) Payments the judgment debtor is required to make or that are deducted in satisfaction of other judgments and wage assignments, including earnings assignment orders for support.

(3) The amount remaining due on the money judgment.

(4) The amount being or to be received in satisfaction of the right to payment that may be assigned.”

The right to payment may be assigned only to the extent necessary to satisfy the judgment creditor's money judgment. (Code Civ. Proc., § 708.510, subd. (d).)

Additionally, California Code of Civil Procedure § 708.520 permits a judgment creditor to apply to the court for an order restraining the judgment debtor from assigning or otherwise disposing of the right to payment that is sought to be assigned. (Code Civ. Proc., § 708.520, subd. (a).) “The court may issue an order pursuant to this section upon a showing of need for the order.” (Code Civ. Proc., § 708.520, subd. (b).) Any order restraining a judgment debtor must be personally served upon the judgment debtor and must contain notice to the judgment debtor that “the failure to comply with the order may subject the judgment debtor to being held in contempt of court.” (Code. Civ. Proc., § 708.520, subd. (d).)

Here, Judgment Creditor asserts that Judgment Debtor, a limited liability company, owns real property located at 2l5l-2171 West Florence Avenue, Los Angeles, California 90047 (Property), which is a retail strip plaza occupied by multiple commercial tenants. (Samtani Decl., ¶ 8.) Judgment Creditor also asserts that the Property is currently occupied by third party tenants – Spin Town Laundry, Jeffs Cleaners, and Quick Mart (Tenants). (Samtani Decl., ¶ 9.) Finally, Judgment Creditor represents that, “[t]o date no payments whatsoever have been received from Judgment Debtor OCOK, LLC or any other third party to be applied to this Judgment.” (Samtani Decl., ¶ 6.) Based on the foregoing evidence, Judgment Creditor seeks an assignment order of rental income payable by Tenants against the interests of Judgment Debtor and a restraining order prohibiting Judgment Debtor from assigning or otherwise disposing of the right to payment that is sought to be assigned.

Ps has failed to show that the Judgment Debtor was properly served. Judgment Creditor served this Motion by mail at a different address than was used to serve the Summons and Complaint on September 30, 2021, which served the basis for the entry of default against Judgment Debtor. Thus, service does not appear proper.

Further, although Judgment Creditor has provided evidence demonstrating the amount remaining due on the judgment is $13,902.45 plus interest, Judgment Creditor does not provide any evidence as to the amount it expects to receive based on the monthly rents to be assigned. (Samtani Decl., ¶ 6) While such information is not required under the statute, the Court has discretion under the statute to consider this information to determine if the assignment order is appropriate under the circumstances here. This is because of the relatively small amount at issue in the Judgment, while the assignment is sought as to three commercial tenants. (Code Civ. Proc., § 708.510, subd. (c)(3)-(4) [“(3) The amount remaining due on the money judgment. (4) The amount being or to be received in satisfaction of the right to payment that may be assigned.”].)

Finally, there is no admissible evidence of Judgment Debtor’s rights and interests in the above-listed properties. Judgment Creditor has provided no public records, such as deeds, or evidence of past rental agreements between certain named tenants at those properties demonstrating that Judgment Debtor possesses an interest in those properties. Rather, Judgment Creditor relies on the unsubstantiated declaration of Plaintiff’s counsel, which lacks foundation. (Samtani Decl., ¶¶ 8-10.)

Based on this lack of evidence, the Court cannot find that Judgment Creditor has satisfied the requirements of California Civil Code of Procedure section 708.510.

CONCLUSION

The Motion is denied.