Judge: Mark E. Windham, Case: LAM15K08573, Date: 2024-05-29 Tentative Ruling

Case Number: LAM15K08573    Hearing Date: May 29, 2024    Dept: 26

ACIC v. Edwin, et al.

MOTION FOR ASSIGNMENT AND TURNOVER ORDER

(CCP § 708.510)

TENTATIVE RULING:

Judgment Creditor American Contractors Indemnity Company’s Motion for Assignment Order is DENIED.

ANALYSIS:  

On July 10, 20215, Plaintiff American Contractors Indemnity Company (“Judgment Creditor”) filed a Complaint against Defendant Francis Edwin Azevedo (“Judgment Debtor) for breach of contract. On September 29, 2015, this Court entered default judgment against Judgment Debtor for the total amount of $12,112.49.

On March 20, 2024, Judgment Creditor filed the instant Motion for Assignment Order. No opposition has been filed to date.

Discussion

Under Code of Civil Procedure, section 708.510, subdivision (a), the moving statute, the Court may order the judgment debtor to assign to the judgment creditor or to an appointed receiver all or part of a right to payment due or to become due. The types of payments that can be assigned include wages due from the federal government if not subject to a withholding order, rents, commissions, royalties, patent or copyright payments, and insurance policy loan value. (Code Civ. Proc., § 708.510, subd. (a).)

Relevant factors the Court may take into consideration when making an assignment order include the judgment debtor’s reasonable requirements if they are a natural person, payments the judgment debtor is required to make to satisfy other judgments and wage assignments, the amount remaining due on the judgment, and the amount to be received in satisfaction of the right to payment that may be assigned.

(Code Civ. Proc., § 708.510, subd. (c).) Construing all the applicable statutes together, the “assignment order” contemplated by Code of Civil Procedure, section 708.510, et seq. must include a court order that assigns a right to payment outright (not simply an order directing the judgment debtor to do so). 

Here, Judgment Creditor seeks an order (1) assigning payments made to Ed’s Custom Truck Bodies, Inc. (“Ed’s Custom”) to Judgment Creditor; (2) assigning payments made out of Ed’s Custom’s account(s) to Judgment Debtor to Judgment Creditor; (3) turning over any payments made by Ed’s Custom or out of Ed’s Custom’s account(s) to Judgment Debtor to Judgment Creditor; (4) restraining Judgment Debtor or any servant, agent, employee, attorney, or anyone else acting on his behalf or jointly with him from assigning or otherwise disposing of the right to payment; and (5) compelling Judgment Debtor to provide, file, and serve an accounting every other month as a means of monitoring Judgment Debtor’s activity and to ensure compliance with the Court’s orders. (Motion, pp. 1:24-2:18.)

On September 29, 2015, judgment was entered in Judgment Creditor’s favor and against Judgment Debtor in the amount of $12,112.49. (Motion, Murray Decl., ¶ 2, Exh. 1.) Furthermore, Judgment Creditor has attempted to enforce its judgment but has only obtained $10,961.18 through bank levies and voluntary payments. (Id. at ¶ 3, Exh. 2.) The remaining interest amounts to $10,447.30. (Id. at ¶13 and Exh. 10.) Judgment Creditor also contends that it incurred post-judgment attorney’s fees and costs of $5,927.80. (Id. at ¶13.) Judgment Creditor subpoenaed Ed’s Custom’s bank records, which identify Judgment Debtor as the company’s CEO/Owner. (Id. at ¶11 and Exh. 8.) The records also show that wages are not paid from Ed’s Custom to Judgment Debtor but that cash and debit card withdrawals are made from the company’s bank account. (Id. at ¶12 and Exh. 9.) Judgment Creditor contends that these withdrawals appear to be Judgment Debtor taking money out of Ed’s Custom’s account for himself. (Id. at ¶12.)

This evidence does not demonstrate that the withdrawals from Ed’s Custom’s bank account are for Judgment Debtor to use for himself. Judgment Creditor does not identify any specific withdrawals and from what information it can be determined whether that money was used for the company or for Judgment Debtor as an individual. It can only speculate that Judgment Debtor pays himself from these withdrawals. The bank records only show that Judgment Debtor is the CEO/Owner of a company, has access to that company’s bank account, and makes sporadic withdrawals. The request to assign payments made to Ed’s Custom to Judgment Creditor, or to assign payments made out of Ed’s Custom’s account(s) to Judgment Debtor to Judgment Creditor, therefore, is denied.

Judgment Creditor also asks for an order turning over any payments made by Ed’s Custom or out of Ed’s Custom’s account(s) to Judgment Debtor to Judgment Creditor. Again, there is no evidence provided to show which payments were made by Ed’s Custom “to” Judgment Debtor in the sense that they were used by Judgment Debtor for himself, instead of for the company. Furthermore, section 708.510 does not provide for a turnover order. The statute only allows the Court to order assignment of “all or part of a right to payment due or to become due.” (Code Civ. Proc., § 708.510, subd. (a).) The request for a turnover order is also denied.

Finally, as there is no evidence of payments made by Ed’s Custom to Judgment Debtor are for his use as an individual and not for the company, the requests to restrain the assignment of payments or for an accounting are premature.

Conclusion

Judgment Creditor American Contractors Indemnity Company’s Motion for Assignment Order is DENIED.

Court clerk to give notice.