Judge Mark E. Windham, Case 19STLC02230 2023-01-09 Tentative Ruling

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Judgment Creditor Los Angeles Police Federal Credit Union’s Motion For Issue of Writ of Execution and Application for Earnings Withholding Order is DENIED.

Plaintiff Los Angeles Police Federal Credit Union (“Judgment Creditor”) filed the instant action for breach of loan agreement and related claims against Defendants Rodrick M. Brown (“Judgment Debtor”) and Marlise M. Ervin aka Marlise Brown (“Marlise Brown”) on March 4, 2019. Marlise Brown was dismissed from the action on May 25, 2021. Judgment was entered against Judgment Debtor on March 30, 2022 and amended on April 20, 2022.

Judgment Creditor filed the instant Motion For Issue of Writ of Execution and Application for Earnings Withholding Order on July 25, 2022. To date, no opposition has been filed.

Judgment Creditor seeks an order to include Marlise Brown’s name on all writs of execution and to issue an earnings withholding order against her.

“An earnings withholding order may not be issued against the earnings of the spouse of the judgment debtor except by court order upon noticed motion.” (Code Civ. Proc., § 706.109.) Family Code section 903, subdivision (a) provides that in the case of a contract, a debt is incurred “at the time the contract is made” and subdivision (b) provides that in the case of a tort, a debt is incurred “at the time the tort occurs.” (Fam. Code, § 903, subds. (a)-(b).) Family Code section 910, subdivision (a) provides that “[e]xcept as otherwise expressly provided by statute, the community estate is liable for a debt incurred by either spouse before or during marriage, regardless of which spouse had the management and control of the property and regardless of whether one or both spouses are parties to the debt or to a judgment for the debt.” (Fam. Code, § 910, subd. (a).)

Judgment Creditor presents evidence from Marlise Brown’s discovery responses demonstrating that she was married to Judgment Debtor at the time the subject loan agreement was entered into. (Motion, Needleman Decl., Exh. 1.) Therefore, Marlise Brown is liable for the debt at issue and the corresponding judgment in this action. Judgment Creditor has been unable to collect any part of the judgment from Judgment Debtor. (Id. at ¶4.) However, Judgment Creditor offers no authority that Marlise Brown can be included on all writs of execution in this action pursuant to Code of Civil Procedure section 706.109. (Motion, p. 5:23-26.) The statute does not provide for such a remedy and the Motion cites to no law that so provides. Nor has Judgment Creditor shown that Marlise Brown has any earnings to be subjected to a garnishment order. (See Motion, Needleman Decl.) No evidence shows whether Marlise Brown is employed, or otherwise is paid earnings, or by whom. It is not possible to issue an earnings withholding order without this information.

Therefore, Judgment Creditor Los Angeles Police Federal Credit Union’s Motion For Issue of Writ of Execution and Application for Earnings Withholding Order is DENIED.