Judge: David A. Hoffer, Case: 30-2022-01295439, Date: 2023-08-28 Tentative Ruling

The Opposition by judgment creditor Hensley Electric, Inc. to the Claim of Exemption filed by judgment debtor Richard Santos is DENIED.

Here, debtor Richard Santos is making a claim of exemption under CCP §706.051.  Pursuant to Code of Civil Procedure section 706.105, subdivision (a), a Judgment Debtor may claim an exemption under section 706.051 where, as here, there has been no prior hearing with respect to an earnings withholding order. (Code of Civ. Proc., §706.105, subd. (a)(1).)

A claim of exemption is made by filing with the levying officer a claim of exemption and a financial statement. (Code Civ. Proc., §706.105, subd. (b).)  A Judgment Creditor who wishes to contest the claim of exemption must file a notice of opposition to the claim of exemption within 10-days of service, by the levying officer, of the notice of claim of exemption. (Code Civ. Proc., §706.105, subd. (d)). Likewise, a “notice of motion for an order determining the claim of exemption” must be filed with the court within the same time period, i.e. “within 10 days after the date the levying officer mailed the notice of claim of exemption.” (Code Civ. Proc., §706.105, subd. (e)).  (This 10-day period is not extended where the claim of exemption was served by mail; see CCP § 684.310 and Comment to CCP § 706.105.)

The statutory procedure mandates the levying officer to release the wages or other property of the debtor when there is an untimely filing of the notice of opposition to the claim of exemption and, if there is an untimely filing of either the notice of opposition to the claim of exemption or the notice of hearing, there can be no claim of exemption hearing. Westervelt v. Robertson (1981) 122 Cal.App.3d Supp. 1, 9-10.

Here, the Claim of Exemption was signed by the Judgment Debtor on July 7, 2023. (Exh. 2 to Opposition)  Per Exhibit 2 to the Notice of Opposition, the Notice of Filing of Claim of Exemption was mailed to counsel for the Judgment Creditor on 7/12/23.  The mandatory Notice of Opposition and Notice of Hearing were not filed until 7/31/23, which is untimely pursuant to CCP §706.105(e). (ROA Nos. 43 and 44.)

Accordingly, Judgment Creditor’s notices are untimely and, pursuant to the authority stated above, there can be no claim of exemption hearing. The hearing on Judgment Creditors’ opposition to Debtor Richard Santos’ claim of exemption is denied and the levying officer is hereby ordered to release any wage or other property held pursuant to the writ of execution to debtor Richard Santos forthwith. 

Debtor Richard Santos is ordered to give notice of this ruling.