Judge: Lisa R. Jaskol, Case: BC712532, Date: 2024-12-10 Tentative Ruling
Case Number: BC712532 Hearing Date: December 10, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On June 29, 2018, Plaintiff Steven Peisner (“Plaintiff”) filed this action against Defendants Keck Hospital of USC, James C. Wang, DPM (“Wang”), and Does 1-25 for medical negligence, medical battery, and negligent hiring, supervision and retention.
On August 24, 2018, Defendants The University of Southern California, dba Keck Hospital of USC (“Keck”), and Wang filed answers.
Also on August 24, 2018, Defendants filed a stipulation striking portions of Plaintiff’s complaint.
On May 25, 2023, the case was called for trial. On June 8, 2023, the jury returned a defense verdict. On June 29, 2023, the Court entered a judgment.
On August 18, 2023, the Court entered an amended judgment. The amended judgment stated in part that Keck and Wang “shall each be entitled to recover their respective costs, as permitted by California law, from [Plaintiff] in the amount of $103,021.71, plus all applicable legal interest.”
On August 25, 2023, Plaintiff filed a notice of appeal. On December 6, 2023, the Court of Appeal dismissed the appeal. On March 5, 2024, the Court of Appeal issued the remittitur.
On February 23, 2024, Defendants filed an acknowledgment of assignment of judgment stating that Wang had assigned his rights, title, and interest in the judgment “consisting of the unpaid judgment i[n] the sum of $103,021.71, plus any additional and accruing interest at 10% per annum and recovery costs” to assignee Beta Healthcare Group Risk Management Authority (“Beta”). On June 18, 2024, Defendants filed a notice of acknowledgement that Wang had assigned his judgment against Plaintiff to Beta.
On July 12, 2024, Defendants filed a notice of acknowledgement of assignment of judgment stating that Keck had “assigned the Judgment against [Plaintiff] to [Beta], as noted in the attached Acknowledgement of Assignment of Judgment.”
On July 17, 2024, the Court issued writs of execution on the amended judgment.
On August 23, 2024, Beta filed a motion for assignment of rights, restraining order, and turnover order for funds held by credit card processors due Plaintiff and request for judicial notice. The motion was set for hearing on October 24, 2024. On October 10, 2024, Plaintiff filed an opposition. On October 14, 2024, Beta filed a reply. The Court continued the hearing to December 10, 2024.
BETA’S REQUEST FOR JUDICIAL NOTICE
Denied. (See Cal. Rules of Court, rule 3.1113(l) [“Any request for judicial notice must be made in a separate document . . .”].)
PARTIES’ REQUESTS
Beta asks the Court (1) to order the assignment to Beta of payments which Plaintiff has the right to receive from four companies, (2) to issue an order restraining Plaintiff from assigning or disposing of his right to receive these payments, and (3) to order Plaintiff to transfer to the levying officer possession of documentary evidence of title to property of or a debt owed to Plaintiff which Beta seeks to levy on.
Plaintiff asks the Court to deny the motion or to delay the
effectiveness of any order granting the motion.
LEGAL STANDARD
Code of Civil Procedure section 708.510 provides in part:
“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.
“(b) The notice of the motion shall be served on the judgment debtor. Service shall be made personally or by mail.
“(c) Subject to subdivisions (d), (e), and (f), in 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.
“(d) A right to payment may be assigned pursuant to this article only to the extent necessary to satisfy the money judgment. . . .”
(Code Civ. Proc., § 708.510, subds. (a), (b), (c), (d).)
Code of Civil Procedure section 708.520 provides:
“(a) When 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. The application shall be made on noticed motion if the court so directs or a court rule so requires. Otherwise, it may be made ex parte.
“(b) The court may issue an order pursuant to this section upon a showing of need for the order. The court, in its discretion, may require the judgment creditor to provide an undertaking.
“(c) The court may modify or vacate the order at any time with or without a hearing on such terms as are just.
“(d) The order shall be personally served upon the judgment debtor and shall contain a notice to the judgment debtor that failure to comply with the order may subject the judgment debtor to being held in contempt of court.”
(Code Civ. Proc., § 708.520.)
Code of Civil Procedure section 699.040 provides:
“(1) Possession of the property sought to be levied upon if the property is sought to be levied upon by taking it into custody.
“(2) Possession of documentary evidence of title to property of or a debt owed to the judgment debtor that is sought to be levied upon. An order pursuant to this paragraph may be served when the property or debt is levied upon or thereafter.
“(b) The court may issue an order pursuant to this section upon a showing of need for the order.
“(c) The order shall be personally served on the judgment debtor and shall contain a notice to the judgment debtor that failure to comply with the order may subject the judgment debtor to arrest and punishment for contempt of court.”
(Code Civ. Proc., § 699.040.)
DISCUSSION
A. Request for order of assignment
In its motion, Beta asks the Court “[f]or an order assigning all accounts, accounts receivable, rights to payment of money, contingent rights, contract rights, deposits and deposit accounts, claims against third parties, monies due from third parties, and/or the percent thereof due and in favor of and for the benefit of [Plaintiff], jointly and severally, or any of Defendants' [sic] partners, assignees, and other persons acting on his behalf, (collectively, PEISNER RECIPIENT)” under Code of Civil Procedure section 708.510 “for the following”:
“A. Any and all distributions, revenues, payments, royalties, commissions, stream of funds, distribution to the financial institution (i.e., bank) or any funds and/or the percent thereof due and from the following PEISNER CREDIT CARD PROCESSORS:
Florida: Acquiring Solutions International, Inc.
(d.b.a. ACQUPAY)
Bankcard Advisors Corporation,
Direct Marketing Experts, Inc.,
V-KOOL Products, Inc.,
California: Acquiring Solutions, LLC. (MERGER) (d.b.a.
ACQUPAY)
Acquiring Solutions International, Inc., (d.b.a.
ACQUPAY)
Bankcard Advisors Corporation,
Direct Marketing Experts, Inc.,
and each of them, joint[ly] and severally (collectively ‘PEISNER CREDIT CARD PROCESSORS’) to the PEISNER RECIPIENT's bank, financial institution, or any third party receiving funds from the Credit Card Processor for the benefit of the PEISNER RECIPIENT.”
“B. Any and all [sic] emanating from, paid from, held by, in trust of, in the hands of, in a conduit or transit from, security deposit, held in reservoirs, or otherwise in accounts and/or the percent thereof due and of any and all CREDIT CARD PROCESSORS. For purposes of clarity, CREDIT CARD PROCESSORS any and all bank accounts of any type, checking accounts, certificates of deposits, lines of credit, credit balances due under ATM cards, savings accounts, trust accounts, safety deposit boxes, or any accounts which hold, in any manner, funds due to PEISNER RECIPIENT and specifically subject to the terms and conditions of this order, and constitute a right of payment as assigned herein.”
Beta appears to be asking the Court to assign to Beta Plaintiff's right to receive payments from four companies: (1) Acquiring Solutions International, Inc. (“Acquiring Solutions”), (2) Bankcard Advisors Corporation (“Bankcard Advisors”), (3) Direct Marketing Experts, Inc. (“Direct Marketing”), and (4) V-KOOL Products, Inc. (“V-KOOL”).
Plaintiff opposes Beta’s motion, arguing that Beta’s request is too general and does not identify the specific sources of the money to be assigned. Plaintiff appears to mean that Beta has not identified the types of payments that Acquiring Solutions, Bankcard Advisors, Directing Marketing, and V-KOOL make to Plaintiff which the Court can assign to Beta. The Court finds that Beta has sufficiently identified the types of possible payments from Acquiring Solutions, Bankcard Advisors, Directing Marketing, and V-KOOL to Plaintiff which are subject to assignment.
In addition, Plaintiff argues the Court should not issue an assignment order because he can barely meet his family’s living expenses. (See Code Civ. Proc., § 708.510, subd. (c)(1) [court may consider “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”].) Plaintiff states that he barely makes enough money to support himself and his wife and contribute to the support of a step-daughter who has special needs.
Plaintiff has attached a W-2 form to his opposition showing that he received $12,000.00 in wages from Acquiring Solutions in 2023. According to Plaintiff, he did not receive wages, a salary, or a dividend from Acquiring Solutions in 2024 and did not receive wages, a salary, or a dividend from Bankcard Advisors in 2023 or 2024. Plaintiff also asserts that Acquiring Solutions, Bankcard Advisors, Directing Marketing, and V-KOOL do not owe Plaintiff any money. (Opposition p. 6.) Plaintiff does not claim, however, that Acquiring Solutions, Bankcard Advisors, Directing Marketing, and V-KOOL will not be required to make payments to him in the future.
Plaintiff has not provided information about his income and expenses that would allow the Court to determine whether granting Beta’s motion would impair Plaintiff's ability to provide for his family. The Court therefore continues the hearing and orders Plaintiff to provide a supplemental brief addressing his income, expenses, and any other financial information the Court would need to determine whether granting Beta’s motion would impair Plaintiff’s ability to provide for his family. Beta may file a responsive supplemental brief.
If Beta and Plaintiff resolve the issues raised in this motion before the continued hearing, Beta is to take the motion off calendar.
B. Request for restraining order
Beta asks the Court to issue a restraining order restraining “PEISNER RECIPIENT from the sale, alienation, mortgage, lien, encumbrance, advancement, cashing or negotiation, or receipt or exploitation of any of the accounts” under Code of Civil Procedure section 708.520, subdivision (a).” Beta states that it needs the order because Plaintiff has not voluntarily made payments on the judgment.
Plaintiff opposes the request for a restraining order, arguing that a restraining order must be limited to the “right to payment that is sought to be assigned.” (Code Civ. Proc., § 708.520, subd. (a).)
The Court grants Beta’s request and orders that Plaintiff is restrained from assigning or otherwise disposing of his rights to payment from Acquiring Solutions, Bankcard Advisors, Directing Marketing, and V-KOOL.
Based on the Court’s review of Plaintiff’s financial information, the Court may revise this order on the continued hearing date.
C. Request for order directing transfer of documentary evidence of title
Beta
asks the Court “[f]or an order compelling PEISNER RECIPIENT to tum over any and
all documentary evidence of any of the accounts, including but not limited to,
any checks, drafts, money orders, deposits, deposit accounts, books, records,
papers or files, listing of accounts, accounts receivable ledgers or journals,
to and on behalf of the SHERIFF, COUNTY OF LOS ANGELES, 110 NORTH GRAND AVENUE,
ROOM 525, LOS ANGELES, CALIFORNIA 90012” under Code of Civil Procedure section 699.040,
subdivisions (a)-( c).
The Court defers ruling on this request and continues the matter as set forth below.
CONCLUSION
The Court CONTINUES the hearing on Beta Healthcare Group Risk Management Authority’s motion for an order of assignment under Code of Civil Procedure section 708.510 to February 3, 2025 at 1:30 p.m. in Department 28 of the Spring Street Courthouse.
The Court GRANTS Beta Healthcare Group Risk Management Authority’s motion for an order under Code of Civil Procedure section 708.520 and orders that Plaintiff Steven Peisner is restrained from assigning or otherwise disposing of his rights to payment from Acquiring Solutions International, Inc., Bankcard Advisors Corporation, Direct Marketing Experts, Inc., and V-KOOL Products, Inc.
The Court CONTINUES Beta Healthcare Group Risk Management Authority’s motion for a turnover order under Code of Civil Procedure section 699.040 to February 3, 2025 at 1:30 p.m. in Department 28 of the Spring Street Courthouse.
The Court orders Plaintiff Steven Peisner to file a supplemental brief by January 21, 2025 providing information about his income, expenses, and any other financial information that would allow the Court to determine whether granting Beta Healthcare Group Risk Management Authority’s motion for an order of assignment under Code of Civil Procedure section 708.510 would impair Plaintiff Steven Peisner’s ability to provide for his family.
Beta Healthcare Group Risk Management Authority may file a responsive supplemental brief by January 28, 2025.
Beta Healthcare Group Risk Management Authority is ordered to give notice of this ruling.
Beta Healthcare Group Risk Management Authority is ordered to file proof of service of this ruling with the Court within five days.