Judge: Jill Feeney, Case: BC704133, Date: 2023-02-17 Tentative Ruling
Case Number: BC704133 Hearing Date: February 17, 2023 Dept: 30
Department 30, Spring Street Courthouse
February 17, 2023
BC704133
Claim of Exemption filed by Judgment Debtor Francisca Hernandez
DECISION
The claim of exemption is denied.
Judgment Creditor Hector Perez is to provide notice, including on the levying officer.
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.
On January 17, 2023, the Court continued this matter to allow Perez to cure deficiencies with the application.
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 Hernandez seeks to exempt her checking account from her wage garnishment.
Previously, the Court found 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. There is still no proof of service showing the notice of motion and opposition were served on the levying officer. However, as set forth below, the levying officer did file the claim of exemption.
The levying officer filed the claim of exemption on January 19, 2023. The claim states that Hernandez has a net monthly income of $2,544 and that she has a dependent son who is 21 years old and has not income. She has $20 in cash, $250 in other property, and no spouse. Her monthly expenses are $2,140. Hernandez states she was saving money to gain U.S. citizenship and travel to Mexico to see her elderly mother.
Hernandez claims exceptions under Code Civ. Proc., section 703.140(b). However, that section refers to Federal bankruptcy exceptions. Hernandez is not undergoing Title 11 bankruptcy. Because Hernandez fails to show that the checking account is exempt, the claim of exemption is denied.
