Judge: Layne H. Melzer, Case: 2010-00421781, Date: 2023-08-10 Tentative Ruling

Plaintiff Anaivett Araoz, Eduardo Araoz

Claim of Exemption - Wage Garnishment

The hearing on the Claim of Exemption is DENIED.

A claim of exemption is made by filing with the levying officer a claim of exemption and a financial statement. (Code Civ. Proc., §706.105, subd. (b).)  A Judgment Creditor who wishes to contest the claim of exemption, must file a notice of opposition to the claim of exemption, within 10-days of service, by the levying officer, of the notice of claim of exemption. (Code Civ. Proc., §706.105, subd. (d)). Likewise, a “notice of motion for an order determining the claim of exemption” must be filed with the court within the same time period, i.e. “within 10 days after the date the levying officer mailed the notice of claim of exemption.” (Code Civ. Proc., §706.105, subd. (e)).  (This 10-day period is not extended where the claim of exemption was served by mail; see CCP § 684.310 and Comment to CCP § 706.105.)

The statutory procedure mandates the levying officer to release the wages or other property of the debtor when there is an untimely filing of the notice of opposition to the claim of exemption and if there is an untimely filing of either the notice of opposition to the claim of exemption or the notice of hearing, there can be no claim of exemption hearing. Westervelt v. Robertson (1981) 122 Cal.App.3d Supp. 1, 9-10.

Here, the notice of filing claim of exemption was served via mail on 06/05/23, per Notice of Opposition to Claim of Exemption, Item 3.  (ROA 170).  On 06/12/23, Plaintiffs/Judgment Creditors timely filed the notice of opposition and notice of hearing on the levying officer.  However, Judgment Creditors did not timely file either of these documents with the Court.  The mandatory Notice of Opposition and Notice of Hearing were not filed until 06/22/23, which is untimely pursuant to CCP § 706.105(e).

Accordingly, Judgment Creditors’ notices are untimely and pursuant to the authority stated above, there can be no claim of exemption hearing. The hearing on Judgment Creditors’ opposition to Debtor Suzanne Singh’s claim of exemption is DENIED and the levying officer is hereby ORDERED to release any wage or other property held pursuant to the writ of execution to debtor Suzanne Singh forthwith. 

Debtor Suzanne Singh to give notice.