Judge: Layne H. Melzer, Case: 01CC01440, Date: 2022-10-27 Tentative Ruling

Judgment Creditor Judgment Recovery Assistance, LLC

Motion - Other (Motion for Assignment Order)

Judgment Creditor Recovery Assistance, LLC’s motion for order assigning to it payments due to judgment debtor Mark Ferry pursuant to Code Civ. Proc. §708.510 is denied.

Judgment creditor seeks an order assigning to it Judgment Debtor’s rights to payment.  The only right to payment identified is monthly payments of $2,500 made to Judgment Debtor, as beneficiary, from a trust set up by his mother: The Janice Marie Ferry Family Trust (the “Trust”).  [Compton Decl., ¶ 4.]

Code Civ. Proc. § 708.510 does not apply to payments from trusts.  FirstMerit Bank, N.A. v. Reese (2015) 242 Cal.App.4th 408, 412-13.  Rather, Code Civ. Proc. § 709.010, is the exclusive means available for a judgment creditor to enforce a money judgment against an interest in a trust.  Id.

(a) As used in this section, “trust” has the meaning provided in Section 82 of the Probate Code.

(b) The judgment debtor's interest as a beneficiary of a trust is subject to enforcement of a money judgment only upon petition under this section by a judgment creditor to a court having jurisdiction over administration of the trust as prescribed in Part 5 (commencing with Section 17000) of Division 9 of the Probate Code. The judgment debtor's interest in the trust may be applied to the satisfaction of the money judgment by such means as the court, in its discretion, determines are proper, including but not limited to imposition of a lien on or sale of the judgment debtor's interest, collection of trust income, and liquidation and transfer of trust property by the trustee.

(c) Nothing in this section affects the limitations on the enforcement of a money judgment against the judgment debtor's interest in a trust under Chapter 2 (commencing with Section 15300) of Part 2 of Division 9 of the Probate Code, and the provisions of this section are subject to the limitations of that chapter.

Code Civ. Proc. § 709.010.

Moreover, a petition under section 709.010 must be brought in a court that has jurisdiction over administration of the trust.  Id.; FirstMerit Bank, N.A. v. Reese (2015) 242 Cal.App.4th 408, 412-13.  FirstMerit Bank, N.A. v. Reese (2015) 242 Cal.App.4th 408, 412-13 (emphasis added).

Beyond this, there are further limits if the trust in issue is a spendthrift trust.  Code Civ. Proc. § 709.010(b); Prob. Code § 15300; 8 Witkin, Cal. Proc. 6th Enf Judgm § 358 (2022) (emphasis added).

Judgment Creditor’s motion for assignment order as to Judgment Debtor’s rights to payment from the Trust, made under Code Civ. Proc. § 708.510, must be denied.  First, Judgment Creditor did not bring a petition under Code Civ. Proc. §709.010.  Second, it has not shown that this court has jurisdiction over administration of the Trust.  And, finally, Judgment Creditor has not shown that the Trust is one as to which an assignment order can be made – that is, that it is not a spendthrift trust.

Moving party to give notice