Judge: Jill Feeney, Case: BC704133, Date: 2023-01-17 Tentative Ruling
Case Number: BC704133 Hearing Date: January 17, 2023 Dept: 30
Department 30, Spring Street Courthouse
January 17, 2023
BC704133
Claim of Exemption filed by Judgment Debtor Miranda Laura
DECISION
This matter is continued.
The parties are to appear on the date of the hearing to set a continued hearing date.
All required documents must be filed at least five court days in advance of the continued hearing date.
Moving party to provide notice and to file proof of service of such notice within five court days after the date of this order.
Background
This is an action for negligence concerning an incident where the County of Los Angeles Department of Animal Care and Control seized Plaintiff’s German Shepherd puppies which took place in July 2018. Plaintiff Hector Perez filed his Complaint against the County of Los Angeles Department of Animal Care and Control on April 30, 2018.
On July 16, 2020, Plaintiff filed a Doe Amendment naming Veronica Jauregui, Francisca Hernandez, and Laura Miranda as Defendants in this action.
On November 16, 2021, the Court granted default judgment against Francisca Hernandez.
On October 6, 2022, Perez filed his application for writ of execution against the defaulted parties.
On December 1, 2022, Francisca Hernandez filed a Claim of Exemption.
Summary
Moving Arguments
The judgment debtor Francisca Hernandez seeks to claim exemptions from her wage garnishment
Opposing Arguments
The judgment creditor, Hector Perez, argues that saving money to gain U.S. citizenship and travel expenses to a foreign country are not exempted.
Legal Standard
At a hearing on a claim of exemption, “the [judgment debtor] has the burden of proof” in demonstrating that the property claimed exempt is indeed exempt. (Code Civ. Proc., §§ 703.520, subd. (b), 703.580, subds. (b), (c).) In meeting this burden, the judgment debtor must establish the right by evidence or facts; an affidavit which merely follows the language of the statute and states nothing more than conclusions of law is insufficient.¿(Le Font v.¿Rankin¿(1959)¿167¿Cal.App.2d 433, 435.¿Generally, "common necessaries of life" means essentials commonly required by all persons for the sustenance of life, whatever their employment status and includes medical care. (J. J. MacIntyre Co. v. Duren (1981) 118 Cal.App.3d Supp. 16, 18-19).¿
“Within 10 days after service of the notice of claim of exemption, a judgment creditor who opposes the claim of exemption shall file with the court a notice of opposition to the claim of exemption and a notice of motion for an order determining the claim of exemption and shall file with the levying officer a copy of the notice of opposition and a copy of the notice of motion. Upon the filing of the copies of the notice of opposition and notice of motion, the levying officer shall promptly file the claim of exemption with the court.” (Code Civ. Proc., § 703.550.)
Discussion
Judgment debtor Francisca seeks to claim exemptions from her wage garnishment.
As a preliminary matter, the Judgment Creditor’s opposition’s proof of service does not indicate that he complied with Code of Civil Procedure section 703.550, which requires him to file with the levying officer a copy of the notice of opposition and notice of motion. There is only one proof of service for the notice of motion and that proof of service shows service on Judgment Debtor only. There was no proof of service with respect to the notice of opposition and no evidence the notice of motion and notice of opposition were served on the levying officer.
Additionally, the Court does not have complete information for the Court to rule on this hearing because the claim of exemption itself is missing. The Court cannot rely on the Judgment Creditor’s opposition alone. The levying officer was supposed to file the claim of exemption pursuant to statute but has not done so. The Court cannot assess the claim without the actual claim.
Finally, Judgment Creditor only filed a notice of hearing and notice of opposition, but no supporting motion. Judgement Creditor fails to provide any evidence that Judgment Debtor would be able to satisfy the judgment without any effect on monthly expenses.
Conclusion
The Court continues the hearing so that the Judgment Creditor may address these defects.
Judgment Creditor is ordered to give notice.
