Judge: Colin Leis, Case: 23STCV19035, Date: 2024-05-07 Tentative Ruling

Case Number: 23STCV19035    Hearing Date: May 7, 2024    Dept: 74

Osman I. Elbiali v. 612 Vermont Investment Fund, LLC, et al.

Defendant’s Motion to Enforce Levy and Request for Sanctions.

BACKGROUND 

            On December 18, 2017, Plaintiff Osman I. Elbiali (Plaintiff) filed a complaint against Defendant 612 Vermont Investment Fund, LLC (Defendant).

            On July 10, 2018, the court granted Defendant’s special motion to strike.

            On September 26, 2019, the court granted Defendant’s request for attorney’s fees and costs. Accordingly, on October 21, 2019, the court ordered Plaintiff to pay Defendant $25,000 in attorney’s fees and costs.

            On April 18, 2022, Defendant issued a writ of execution.

            On June 15, 2022, a levy on all wages and monies due was issued against Third-Party Sherif Osmon, Inc. (dba Maged Chevron) (Third-Party).

            Third-Party did not respond or comply with the levy.

            On September 14, 2023, Defendant filed this motion to enforce the levy.

¿¿DISCUSSION 

            With this motion, Defendant seeks to recover the judgment from Third-Party because it failed to comply with the levy. Defendant also requests attorneys’ fees and costs incurred in bringing this motion. In support, Defendant cites Code of Civil Procedure section 701.020.

            When a levy is made by service of the writ of execution and a notice of levy on a third-party, and that person fails to deliver the levied property to the levying officer without good cause, the third-party is liable to the judgment creditor for the lesser of either (1) the value of the judgment debtor’s interest in the property or the amount of payments required to be made, or (2) the amount required to satisfy the judgment under which the levy is made. (Code Civ. Proc., § 701.020, subd. (a).)

Defendant’s motion does not show that the amount Defendant seeks – the entire judgment – is less than the amount Third Party owes Plaintiff. Thus, Defendant’s motion seeking recovery from Third Party of the entire judgment against Plaintiff fails because Defendant has not established an essential predicate fact. Defendant’s motion is not the proper vehicle for enforcing Third-Party’s liability. Defendant may enforce Third-Party’s liability under Code of Civil Procedure section 701.020 in an examination proceeding or by a separate creditor’s suit. (Wanke, Indus., Commercial, Residential, Inc. v. AV Builder Corp. (2020) 45 Cal.App.5th 466, 473.)

CONCLUSION 

The court denies Defendant’s motion to enforce levy without prejudice.

Defendant shall give notice.