Judge: Jon R. Takasugi, Case: 19STCV20062, Date: 2023-03-23 Tentative Ruling

Case Number: 19STCV20062    Hearing Date: March 23, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Plaintiff’s motion for an order of assignment and restraining order is CONTINUED. Defendant is ordered to submit a detailed declaration setting forth his income, expenses, and costs of living. 

On June 7, 2019, Plaintiff Jacob Reich filed a Complaint against Defendant Mansour Hashem. On September 1, 2020, Plaintiff filed a second amended complaint (SAC) alleging: (1) breach of written contract; (2) money had and received; (3) common counts; (4) open book account; (5) account stated; (6) failure to honor checks; (7) fraud; (8) negligence; (9) unjust enrichment; (10) judiciary foreclosure; and (11) reformation of contract.

            Now, Plaintiff seeks an order of assignment and restraining order.   

Discussion

            Plaintiff seeks assignment of future rent payments from the real properties owned by the Defendant. Moreover, Plaintiff seeks a restraining order pursuant to which Defendant will be restrained from collecting any rent from his attached properties until the judgment is satisfied.

            The Court previously denied an identical request from Plaintiff, without prejudice, writing:

Plaintiff’s motion sets forth a number of properties which he is “informed and believes” are owned, in some part, by Defendant. However, noticeably absent from Plaintiff’s motion is any evidentiary support to corroborate those claims. Plaintiff did not cite any legal authority indicating that the Court may assign rent payments for properties which have only been connected to Defendant based on “information and belief.” To obtain the requested relief, Plaintiff, at minimum, must submit evidentiary support to establish that Defendant holds an ownership interest in the subject properties which is subject to CCP section 708.510. Moreover, Plaintiff’s memorandum of points and authorities must contain substantive discussion showing that the requested orders are proper beyond a single citation to CCP section 708.510. (See CRC rule 3.113) (“The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.”)

            Now, Plaintiff sets forth substantive argument to show that a creditor may enforce a judgment by assignment of future rents from properties which the judgment debtor owns. More specifically, Plaintiff cites CCP section 708.510, which provides:

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:

….

(2) Rents.

            Moreover, Plaintiff cites the 1992 Legislative Committee Comment analyzing this provision to demonstrate that CCP section 708.510 provides for garnishment of future rents, not just past or present rents: “Paragraph (2) permits issuance of an order for the assignment of the right to payment of rent. Under former law, it was held that future rental installments could not be reached by garnishment. See Hustead v. Superior Court 2 Cal. App.3d 780, 785–87, 83 Cal. Rptr. 26 (1969).”

            Plaintiff also submitted evidence to demonstrate that Defendant owns the following properties:

-         10826 WAGNER ST., CULVER CITY CA 90230

-         2007 OCEAN PARK BLVD, SANTA MONICA CA 90405

-         15122 EASTWOOD AVE., LAWNDALE CA 90260

-         14816 AVIS AVE., LAWNDALE CA 90260.

More specifically, Plaintiff submitted evidence—in the form of deeds and Defendant’s own testimony from the debtor examination—that Defendant is the sole owner of the first three properties, and is a 50% owner of the fourth property. (See Motion.)

            In opposition, Defendant argues that Plaintiff’s request is not justified and a balancing approach must be applied which balances the amount to be collected with the levied-upon party’s rights to access the necessaries of life. In support, Defendant points to CCP section 708.510, subdivision (e) which caps the garnishment of wages where those payments are pursuant to a pension or retirement plan: “When earnings or periodic payments pursuant to a pension or retirement plan are assigned pursuant to subdivision (a), the amount of the earnings or the periodic payments assigned shall not exceed the amount that may be withheld from a like amount of earnings under Chapter 5.”  Under California law, the most that can be garnished from your wages generally 25% of your “disposable earnings” or the amount by which your weekly disposable earnings exceed 40 times the minimum wage, whichever is less.

Defendant submitted a declaration wherein he stated that he is 74 years old and relies on the rents as a sort of pension as he is otherwise employed. However, Defendant’s declaration in short on details. For example, nowhere in the declaration does he clarify what he makes in rental income per month. Similarly, his declaration does not include any explanation as to his living costs per month. While he states that he has “more outflows in expenses than I do in income,” again, he does not provide the Court with any indication of his income, any indication of his expenses, or what exactly those expenses are.  Rather, the only financial information provided is a contention that he borrowed a collective $17,000 last month. However, Defendant does not provide any indication as to why that money was needed, whether this reflects his expenses, how or whether this was sum was supplemented by inflows, or what the sum was spent on (i.e., was this spent on living expenses).

The Court has no desire to push Defendant into financial crisis, or deprive him of the means by which to live. However, Defendant’s vague statements, which provide absolutely no details about his financial condition, income, or expenses, are facially insufficient. Indeed, the Court has so little information about Defendant’s income that it would not know what figure from which to calculate the 25% cap.

            Based on the foregoing, Plaintiff’s motion for an order of assignment and restraining order is continued. Defendant is ordered to submit a detailed declaration setting forth his income, expenses, and costs of living. 

It is so ordered.

Dated:  March    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

            Due to Covid-19, the court is strongly discouraging in-person appearances.  Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk.  The court encourages the parties wishing to argue to appear via L.A. Court Connect.  For more information, please contact the court clerk at (213) 633-0517.  Your understanding during these difficult times is appreciated.

Superior
Court of California

County
of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Plaintiff’s motion an order holding Defendant in contempt
for failing to produce documents is GRANTED.

On June 7, 2019, Plaintiff Jacob Reich filed
a Complaint against Defendant Mansour Hashem. On September 1, 2020, Plaintiff
filed a second amended complaint (SAC) alleging: (1) breach of written
contract; (2) money had and received; (3) common counts; (4) open book account;
(5) account stated; (6) failure to honor checks; (7) fraud; (8) negligence; (9)
unjust enrichment; (10) judiciary foreclosure; and (11) reformation of
contract.

On September 9, 2019, Defendant filed a XC
against Plaintiff, setting forth claims for (1) fraud, (2) breach of fiduciary
duty, and (3) declaratory relief. 

Now, Plaintiff moves for an order holding Defendant in
contempt for failing to produce documents.

Discussion

            As a preliminary matter, Plaintiff
is admonished for filing a 40 page motion for contempt. CRC rule 3.1113
firmly establishes that
except in a summary judgment or summary adjudication motion, no opening or
responding memorandum may exceed 15 pages. In a summary judgment or
summary adjudication motion, no opening or responding memorandum may exceed 20
pages. The
Court disregards all portions of Plaintiff’s motion which exceed the
well-established page limit.

            Plaintiff argues that an additional
ORAP is necessary because Defendant has intentionally concealed monies and is
misrepresenting his assets to avoid satisfying the judgment. In support,
Plaintiff submitted evidence that Defendant has borrowed money from initial
lenders, and private individuals. In order to understand the “paper trail of
money”, Plaintiff subpoenaed Defendant to appear and bring 59 categories of
documents. (See Motion, Exh. 3.)

            A review of the 59 document
production requests establishes that good cause exists to compel their
production. As noted separately by the Court in its ruling on Plaintiff’s
motion to garnish rent payments, Defendant’s declaration is sparse and provides
little to no information about his income (from any source including the
properties), his expenses, or his actual cost of living. Accordingly, without this
information, the Court is unable to determine whether or not Defendant
qualifies for the garnishment gap (because it is unclear what his overall
income is and if he, in fact, depends on the rental income to fund his
retirement), or what amount would be garnished if a 25% gap was established. The
59 documents sought by Plaintiff will help establish these facts.

Based on the foregoing, Plaintiff’s motion an order holding
Defendant in contempt for failing to produce documents is granted.

It is
so ordered.

Dated:  March   
, 2023

   Hon. Jon R.
Takasugi

   Judge of the
Superior Court

Parties who intend
to submit on this tentative must send an email to the court at smcdept17@lacourt.org
by 4 p.m. the day prior as directed by the instructions provided on the court
website at www.lacourt.org.  If a party
submits on the tentative, the party’s email must include the case number and
must identify the party submitting on the tentative.  If all parties to a
motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email
indicating the parties are submitting on the tentative and there are no
appearances at the hearing, the motion may be placed off calendar.