Judge: Joseph Lipner, Case: 21STCV24789, Date: 2023-10-05 Tentative Ruling

Case Number: 21STCV24789    Hearing Date: October 5, 2023    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Plaintiffs and Judgment Creditors Physician Assistant, RTAL Inc., a California Corporation, and John Nicholas Bartolozzi move for a Motion for Assignment Order and for Order Restraining Judgment Debtor. 

The Court DENIES Plaintiffs’ Motion for Assignment Order and for Order Restraining Judgment Debtor. 

Background

          On July 6, 2021, Plaintiffs/Judgment Creditors Physician Assistant, RTAL Inc., a California Corporation and John Nicholas Bartolozzi (“Creditors”) filed the instant action against Defendants/Judgment Debtors United Lab Services Inc., a California corporation, Anabelle Myers, an individual, (collectively “Debtors”) and DOES 1-10.  The Complaint asserted causes of action for:

(1)  Breach of Contract

(2)  Breach of the Implied Covenant of Good Faith and Fair Dealing

(3)  Open Book Account

(4)  Account Stated

(5)  Unethical Business Practices in Violation of California Business & Professions Code § 17200.

On January 17, 2023, the Court granted Creditors’ judgment in the total amount of $76,648.55 against Debtors. 

On March 9, 2023, Creditors filed the instant Motion for Order of Assignment of Payments and for Order Restraining Judgment Debtor from Assigning or Otherwise Disposing of the Right to Payments (the “Motion”).  Creditors filed a Notice of Non-Opposition to their Motion on May 19, 2023.  On May 31, 2023, Debtors filed an untimely opposition with no proof of service attached.  

The instant motion was set for a hearing on June 1, 2023, but was reset for July 25, 2023.  On July 13, 2023, the hearing was reset for October 5, 2023.

Legal Standard for Assignment Order

Code of Civil Procedure section 708.510(a)¿states, in¿relevant¿part:¿ 

(a) 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, including but not limited to the following types of payments: 

(1) Wages due from the federal government that are not subject to withholding under an earnings withholding order. 

(2) Rents. 

(3) Commissions. 

(4) Royalties. 

(5) Payments due from a patent or copyright. 

(6) Insurance policy loan value. 

Code of Civil Procedure section 708.510(c) further provides: 

[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. 

Legal Standard for Order Restraining Judgment Debtor 

Code of Civil Procedure section 708.520 provides that “[w]hen an application is made pursuant to¿Section 708.510¿or thereafter, the judgment creditor may apply to the court for an order restraining the judgment debtor from assigning or otherwise disposing of the right to payment that is sought to be assigned.”¿(Code Civ. Proc., § 708.520(a).)¿“The court may issue an order pursuant to this section upon a showing of need for the order.” (Id., § 708.520(b).) 

Discussion

          On January 17, 2023, a judgment was entered in favor of Creditors and against Debtors.  (Cohen Decl., ¶ 6.  As of March 9, 2023, the amount due and owing is $77,719.53, including accrued interest plus post-judgment costs incurred.  (Id. at ¶ 7.)  The judgment is final, and enforcement thereof is not stayed.  (Id. at ¶ 8.)

          Creditors now move for assignment of rights to payment of money from Debtors’ vendors and customers, as well as other various sources, “not yet ascertained at anytime in the future until the Judgment has been satisfied in full.”  (Cohen Decl., ¶ 9.)  Judgment Debtors oppose on the grounds that Judgment Creditors rely on CCP § 708.510 as a “Blanket” assignment order.  (Opp., Pg. 2.)  Judgment Debtors argue that since Judgment Creditors failed to identify any persons or entities from which Judgment Debtor has a right of payment, their motion for assignment order should be denied.  (Opp., Pg. 2.) 

Creditors also seek an order restraining Debtors and/or any servant, agent, subsidiary, employee, or attorney of Debtors and/or any person in concert and participating with Debtors from encumbering, assigning, disposing, or spending its interest in all rights to payment thereunder until judgment has been satisfied in full.  (Cohen Decl, ¶ 10.)  Creditors do not provide any justification for restraint.  Debtors argue the restraining order fails because Creditors have failed to identify assignable property belonging to Debtors that is subject to CCP § 708.510.

Section 708.510 provides a new procedure for reaching certain forms of property that cannot be reached by levy under a writ of execution, such as the nonexempt loan value of an unmatured life insurance, endowment, or annuity policy. (16 Cal. Law Revision Com. Rep. (1982) p. 1525.) It also provides an optional procedure for reaching assignable forms of property that are subject to levy, such as accounts receivable, general intangibles, judgments, and instruments.¿(Ibid.) This section does not make any property assignable that is not already assignable. (Ibid.) 

Here, Creditors do not identify the property they seek to assign. Therefore, the Court cannot adjudicate Creditors’ motion. Further, as discussed above, the code does not permit a “blanket” assignment order.  

Additionally, Creditors do not state why they need a restraining order. Further, Creditors did not personally serve Debtors with the restraining order and did not include a notice that "failure to comply with the order may subject the judgment debtor to being held in contempt of court."¿(Code Civ. Proc., §708.520, subd. (d).) 

Considering the foregoing, Plaintiff’s Motion for Order of Assignment of Payments and for Order Restraining Judgment Debtor from Assigning or Otherwise Disposing of the Right to Payments is denied.  

It is so ordered.