Judge: George F. Bird, Jr., Case: 22CMCV00084, Date: 2023-02-28 Tentative Ruling

Case Number: 22CMCV00084    Hearing Date: February 28, 2023    Dept: B

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – SOUTH CENTRAL DISTRICT

I.       BACKGROUND

             Plaintiff INTERPOOL, INC., doing business as TRAC INTERMODAL (“Plaintiff”), filed the Complaint on March 28, 2022, alleging that Plaintiff and Defendant JB POWER INC. entered into an Equipment Interchange Agreement by which Defendant was able to use the container chassis owned by Plaintiff and Defendant JB POWER INC. would pay a fee for the use. (Complaint (“Compl.”), p. 6 paragraphs 1, 3, 6.) In the Complaint, Plaintiff alleges that Defendant JB POWER INC. is a suspended corporation, and that Defendant BILLY LAI was operating the business as the alter ego of JB POWER INC. (Compl., p. 2 paragraph 9.) Default was entered against both Defendant JB POWER INC. and Defendant BILLY LAI (collectively “Defendants”) on September 22, 2022. Default judgment was entered against Defendants on December 20, 2022.

II.       MOTION FOR AN ORDER ASSIGNING RIGHT TO PAYMENT AND APPOINTING A RECEIVER

A.    Plaintiff filed the Motion on January 4, 2023.

            In this Motion for an Order Assigning Right to Payment and Appointing a Receiver (“Motion”) Plaintiff argues that Defendant BILLY LAI is the secretary and chief financial officer of JUPITER WAREHOUSE AND DISTRIBUTION, INC., which operates out of the same address as Defendant JB POWER INC., a corporation believed to be defunct by Plaintiff. Plaintiff requests that this Court assign the right to payment of earnings from JUPITER WAREHOUSE AND DISTRIBUTION, INC., to Plaintiff because BILLY LAI allegedly receives regular remittances of earnings from JUPITER WAREHOUSE AND DISTRIBUTION, INC. Plaintiff argues that the Court may infer that Defendant BILLY LAI directs JUPITER WAREHOUSE AND DISTRIBUTION, INC. to remit earnings to Defendant BILLY LAI, thus appointing a receiver is necessary.

B.     Defendants failed to file any oppositions.

            Under Code of Civil Procedure section 1005, subdivision (b), oppositions to this Motion must have been filed and served at least nine court days before the hearing. Oppositions were due on February 14, 2023. As of February 24, 2023, two court days before the hearing, Defendants have not filed any oppositions. The Court will not consider any oppositions filed after February 24, 2023, as Plaintiff would be unfairly prejudiced by being unable to file a timely reply.

III.       LEGAL STANDARDS

            “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….” (Code Civ. Proc., § 708.510, subd. (a).) The Legislative Committee Comments to Code of Civil Procedure section 708.510 state that the section “provides an optional procedure for reaching assignable forms of property that are subject to levy, such as accounts receivable….” (Code Civ. Proc., § 708.510, Legislative Committee Comments – Assembly.)

            “[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.” (Code Civ. Proc., § 708.510, subd. (c).)

            Code of Civil Procedure section 708.510 specifically contemplates and allows assignment of the right to payment to an appointed receiver. Code of Civil Procedure section 564 dictates that a court may appoint a receiver “After judgment, to carry the judgment into effect.” (Code Civ. Proc., § 564, subd. (b)(3).)

IV.       REQUEST FOR JUDICIAL NOTICE

            Plaintiff requests that this Court take judicial notice of three documents: (1) The judgment entered in this action; (2) The statement of information for JB POWER, INC. filed with the Secretary of State on June 30, 2022; and (3) The statement of information for JUPITER WAREHOUSE AND DISTRIBUTION, INC. filed with the Secretary of State on June 30, 2022.

            As to document 1, the court may take judicial notice of any record filed with any court of this state. This Court will take judicial notice of document 1. As to documents 2 and 3, the Court will take judicial notice that the documents presented were filed with the Secretary of State, as this is verifiable and not reasonably subject to dispute, but the facts contained within are reasonably subject to dispute and therefore not subject to judicial notice. (See Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 950 [124 Cal.Rptr.3d 78, 88].)

V.          DISCUSSION

            Plaintiff requests that the Court assign the right to payment of earnings from JUPITER WAREHOUSE AND DISTRIBUTION, INC., to a receiver in order to satisfy the $115,253.58 judgment against JP POWER INC. and BILLY LAI. Plaintiff has alleged that BILLY LAI is the secretary and chief financial officer of JUPITER WAREHOUSE AND DISTRIBUTION, INC., and thus would like the Court to infer that “BILLY LAI directs JUPITER WAREHOUSE AND DISTRIBUTION, INC. to remit earnings as salary, wages, dividends, or draws.” (Motion p. 4:20-28.)

            At present, Plaintiff has not demonstrated any evidence that BILLY LAI receives any payments from JUPITER WAREHOUSE AND DISTRIBUTION, INC., or evidence that BILLY LAI directs remittances. Plaintiff’s allegation that BILLY LAI is the chief financial officer is not sufficient. Even if BILLY LAI was in sole control of JUPITER WAREHOUSE AND DISTRIBUTION, INC., the Court still has no basis to assume that BILLY LAI receives regular remittances.

            Plaintiff has failed to demonstrate the necessity of an assignment and appointment of a receiver to satisfy the money judgment. Plaintiff argues that, “Other than a wage withholding order, a writ of execution served today will only obligate a third party to remit funds due to the judgment debtor on a current and matured obligation. However, such execution levy will not obligate a third party to remit funds due to the judgment debtor in the future.” (Motion p. 3:19-22.) At present, Plaintiff has not demonstrated a need to secure remittance of future earnings to satisfy the judgment. It is unclear why Plaintiff believes that a writ of execution or a wage withholding order would not satisfy the judgment.

            Based on the foregoing, this Motion for Order Assigning Right to Payment of Earnings and for Appointment of Receiver is DENIED.

VI.       CONCLUSION

            This Motion for Order Assigning Right to Payment of Earnings and for Appointment of Receiver is DENIED.

Dated: February 28, 2023                                           __________________________________

                                                                                                Judge of the Superior Court