Judge: Daniel M. Crowley, Case: BC704715, Date: 2023-05-17 Tentative Ruling

Case Number: BC704715    Hearing Date: May 17, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Judgment Creditor Eric Mintz’s motion to instruct Judgment Debtor, David R. Denis to assign his interest in rental income from his real property at 361 North Detroit St., Los Angeles, CA, 90036, payable to David R. Denis, and all right to payment thereunder, to Judgment Creditor Mintz to the extent necessary to pay the Judgment Creditor’s Judgment in full, including accrued interest through the date of payment is granted.

Judgment Creditor’s motion for an order restraining Judgment Debtor Denis and any servant, agent, employee, or attorney for the Judgment Debtor and any person(s) in active concert and participating with the Judgment Debtor from encumbering, assigning, disposing, or spending attorneys’ fees payable to Judgment Debtor Denis, and all rights to payment thereunder, is granted.

Judgment Creditor Eric Mintz (“Mintz”) (“Judgment Creditor”) moves to instruct Judgment Debtor David R. Denis (“Denis”) (“Judgment Debtor”) to assign his interest in rental income from his real property at 361 North Detroit St., Los Angeles, CA, 90036, payable to David R. Denis, and all right to payment thereunder, to Judgment Creditor to the extent necessary to pay the Judgment Creditor’s Judgment in full, including accrued interest through the date of payment.  (Notice of Motion, pg. 2.)

Judgment Creditor further moves for an order restraining Judgment Debtor and any servant, agent, employee, or attorney for the Judgment Debtor and any person(s) in active concert and participating with the Judgment Debtor from encumbering, assigning, disposing, or spending attorneys’ fees payable to Judgment Debtor, and all rights to payment thereunder.  (Notice of Motion, pg. 2.)  Judgment Creditor moves on the grounds that he has a judgment against Judgment Debtor, the balance due on which, including accrued interest to the date of this notice is $19,899.68, and that the Judgment Debtor has an assignable right to the payments described herein, and that there is a need to restrain the Judgment Debtor.  (Notice of Motion, pg. 2.)

Background

On January 8, 2021, Judgment was entered in Plaintiff’s employment action against Judgment Creditor Denis and Defendant Law Office of David R. Denis (“LODD”) (collectively, “Judgment Debtors”) in the amount of $16,935.90.  (Decl. of Shapiro ¶2, Exh. 1.)

Judgment Creditor filed the instant motion on October 11, 2022.  Judgment Debtor filed his opposition on May 4, 2023.  Judgment Creditor filed his reply on May 11, 2023.

          Assignment of Right to Payment of Rents

C.C.P. §708.510 provides as follows:

(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 or to a receiver appointed pursuant to Article 7 (commencing with Section 708.610) all or part of a right to payment due or to become due, whether or not the right is conditioned on future developments, including but not limited to the following types of payments:

(1)    Wages due from the federal government that are not subject to withholding under an earnings withholding order.

(2)    Rents.

(C.C.P. §708.510(a)(1)-(2).)

The effect and priority of an assignment ordered pursuant to C.C.P. §708.530 is governed by Civil Code §955.1.  For the purpose of priority, an assignee of a right to payment pursuant to C.C.P. §708.530 shall be deemed to be a bona fide assignee for value under the terms of Civil Code §955.1.  (C.C.P. §708.530(a).)  An assignment of the right to future rent ordered under C.C.P. §708.530 is recordable as an instrument affecting real property and the priority of such an assignment is governed by Civil Code §1214.  (C.C.P. §708.530(b).)

In determining whether to order an assignment or the amount of an assignment pursuant to §708.510(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.

(C.C.P. §708.510(c)(1)-(4).) 

A right to payment may be assigned pursuant to C.C.P. §708.510 only to the extent necessary to satisfy the money judgment.  (C.C.P. §708.510(d).)

          Judgment Creditor argues Judgment Debtor Denis owns a rental property from which he receives rental income, located at 361 North Detroit Street, Los Angeles, CA 90036.  Judgment Creditor seeks to have the rental receipts assigned to him until the total amount of the Judgment is paid.  Judgment Creditor does not present evidence to support the assertion that Judgment Debtor owns rental property at the Detroit Street address.  (See Decl. of Shapiro ¶8.)  However, Judgment Debtor’s declaration admits that the Detroit Street property requires him to make mortgage payments on the property, and the COVID-19 pandemic prevented him from collecting rents.  (Decl. of Denis ¶4.)  Therefore, Judgment Creditor can pursue the assignment of future rents from the Detroit Street property.

          Judgment Debtor’s argument that Judgment Creditor’s liens preclude payment of the Judgment to Judgment Creditors has already been rejected by this Court.  (See 12/17/20 Minute Order at pgs. 4-5.)  Judgment Debtors’ argument that Judgment Creditor cannot seek an assignment of the right to rent from Judgment Debtor’s rental property because there is no rental income at the allegedly vacant Detroit Street property is similarly unavailing.  Assuming, arguendo, the Detroit Street property is vacant and not currently generating rental income, Judgment Creditor can be assigned the right to future rent.  (C.C.P. §708.530(b).)

          Accordingly, Judgment Creditor Eric Mintz’s motion to instruct Judgment Debtor to assign his interest in rental income from his real property at 361 North Detroit St., Los Angeles, CA, 90036, payable to David R. Denis, and all right to payment thereunder, to Judgment Creditor to the extent necessary to pay the Judgment Creditor’s Judgment in full, including accrued interest through the date of payment is granted.

          Order Restraining Judgment Debtor

“When an application is made pursuant to Section 708.510 or thereafter, the judgment creditor may 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.”  (C.C.P. §708.520(a).)

Judgment Creditor moves for the court for an order restraining the judgment debtor and any servant, agent, employee or attorney for the judgment debtor and any person(s) in active concert and participating with the judgment debtor from encumbering, assigning, disposing or spending attorney’s fees payable to Judgment Debtor and all rights to payment thereunder.  (Motion, pg. 2.)

Judgment Creditor’s counsel declares the following to show the need for an order restraining Judgment Debtor: (1) Judgment Debtor has avoided service of process for noticed Judgment Debtor Examinations, and to date no service has been completed to permit the Judgment Debtor Examination to go forward (Decl. of Shapiro ¶3, Exh. 2); (2) Judgment Creditor sought to obtain post-judgment discovery to assist in the collection of the judgment and propounded a set of Requests for Production of Documents and Special Interrogatories to Judgment Debtors on July 7, 2021. Judgment Debtors have responded with blanket objections to each and every request and interrogatory, stonewalling any and all attempts to collect the judgment and requiring additional law and motion (Decl. of Shapiro ¶4, Exh. 3); and (3) Judgment Creditor’s counsel reasonably believes there is a need to restrain the Judgment Debtor from encumbering, assigning, disposing of or spending the rents receivable and without the restraining order based on the history of refusal to comply with discovery requests and avoidance of service of Judgment Debtor Examination, that Judgment Debtor will attempt to circumvent any assignment of rent to prevent the collection of judgment by Judgment Creditor and will do everything in his power to prevent the payment to Judgment Creditor (Decl. of Shapiro ¶7).

          Judgment Debtor’s argument that Judgment Creditor improperly asks to restrain Judgment Debtor Denis fails.  Judgment Debtor argues the motion improperly asks to restrain Judgment Debtor Denis from acting as to property that he does not own, specifically the right to payment of attorney fees, and that Judgment Debtor LODD owns and holds that interest alone.  (Opposition, pg. 8.)  While attorneys’ fees directed to Judgment Debtor LODD are not Judgment Debtor Denis’ property, Judgment Creditor’s motion sufficiently demonstrates Judgment Debtor Denis has sought to evade payment of the Judgment to Judgment Creditor and any such attorney fees to Judgment Debtor Denis are subject to payment of the Judgment.

Accordingly, Judgment Creditor’s motion for an order restraining Judgment Debtor Denis and any servant, agent, employee, or attorney for the Judgment Debtor and any person(s) in active concert and participating with the Judgment Debtor from encumbering, assigning, disposing, or spending attorneys’ fees payable to Judgment Debtor Denis, and all rights to payment thereunder, is granted.

Dated:  May ____, 2023

Hon. Daniel M. Crowley

Judge of the Superior Court