Judge: Cynthia A Freeland, Case: 37-2019-00063079-CU-BC-NC, Date: 2024-04-05 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

SOUTH BUILDING TENTATIVE RULINGS - April 04, 2024

04/05/2024  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2019-00063079-CU-BC-NC KAATS VS CHRISTOPHER M KEARNS CONSTRUCTION INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 03/08/2024

Plaintiff/Judgment Creditor Diane Kaats ('Judgment Creditor')'s motion for an assignment order is granted.

California Code of Civil Procedure ('CCP') § 708.510(a) provides that the court 'may order the judgment debtor to assign to the judgment creditor . . . all or part of a right to payment due or to become due, whether or not the right is conditioned on future developments . . . .' Cal. Code Civ. P. § 708.510(a).

CCP § 708.510 'provides an optional procedure for reaching assignable forms of property that are subject to levy, such as accounts receivable, general intangibles, judgments, and instruments. This section does not make any property assignable that is not already assignable. This remedy may be used alone or in conjunction with other remedies provided in [the Enforcement of Judgments Law] for reaching rights to payment, such as execution, orders in examination proceedings, creditors' suits, and receivership.' Casiopea Bovet, LLC v. Chiang (2017) 12 Cal. App. 5th 656, 661. An assignment 'transfers the interest of the assignor. The assignee stands in the shoes of the assignor, taking his or her rights and remedies, subject to any defenses that the obligor has against the assignor prior to notice of the assignment.' FirstMerit Bank, N.A. v. Reese (2015) 242 Cal. App. 4th 408, 413. Courts consider a variety of factors in determining whether to order an assignment, including: (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.

Cal. Code Civ. P. § 708.510(c). However, '[a] right to payment may be assigned . . . only to the extent necessary to satisfy the money judgment.' Cal. Code Civ. P. § 708.510(d).

The court construes Defendants/Judgment Debtors Christopher M. Kearns and Christopher M. Kearns Construction, Inc. dba C K Construction (collectively, 'Judgment Debtors')'s lack of opposition as a concession of the motion's merits. See San Diego Rules of Court, Rule 2.1.19.B. In addition, the uncontroverted evidence establishes that on December 2, 2022, the court entered a $583,729.57 default judgment in Judgment Creditor's favor and against Judgment Debtors (the 'Judgment'). See ROA No.

Calendar No.: Event ID:  TENTATIVE RULINGS

3064999 CASE NUMBER: CASE TITLE:  KAATS VS CHRISTOPHER M KEARNS CONSTRUCTION INC  37-2019-00063079-CU-BC-NC 165; Hemme Decl., ¶ 4. On February 2, 2024, the court issued a Writ of Execution stating the Judgment Debtors are indebted to Judgment Creditor in the amount of $645,951.18 plus interest accruing in the amount of $159.92 per diem. See ROA No. 228; Hemme Decl., ¶ 5, Ex. 1. On August 18, 2023, Mr.

Kearns appeared for his debtor's examination and testified that he operates a construction management business through himself or the fictious business name C K Construction Services. See Hemme Decl., ¶ 6, Ex. 2. Mr. Kearns further testified that since March 2023 he has worked as an independent contractor for Hawkins Construction. Hawkins Construction has compensated Mr. Kearns for his construction management services on a budgeted rate for each job and on a job-to-job basis. See Hemme Decl., ¶ 7.

Mr. Kearns requests certain draws for his services and, as evidenced by Exhibit 2 to the debtor's examination transcript, Hawkins Construction pays Mr. Kearns via check. Ibid. Based on the foregoing, the court finds that Judgment Creditor has demonstrated entitlement to an assignment order. By failing to oppose the motion, Judgment Debtors have not set forth any factors that would preclude the issuance of such an order.

In light of the foregoing, the court grants the motion and issues an order assigning to Judgment Creditor all earnings, wages, and other monies earned by Judgment Debtors from Hawkins Construction as well as any dbas, affiliates, and/or other companies where Judgment Debtors work. This Order shall remain in place until the Judgment is fully satisfied. See Cal. Code Civ. P. § 708.510(d). The effect and priority of this assignment shall be governed by California Civil Code ('CC') § 955.1. Judgment Creditor shall be deemed a bona fide assignee for value under CC § 955.1. See Cal. Code Civ. P. § 708.530(a). This Order shall not affect the rights of any obligor(s) to Judgment Debtors until the obligor(s) receive notice of the Order. See Cal. Code Civ. P. § 708.540.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, April 5, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of April 5, 2024. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

Calendar No.: Event ID:  TENTATIVE RULINGS

3064999