Judge: Melvin D. Sandvig, Case: 19CHCV00314, Date: 2022-09-27 Tentative Ruling
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Case Number: 19CHCV00314 Hearing Date: September 27, 2022 Dept: F47
Dept. F47
Date: 9/27/22
Case #19CHCV00314
MOTION FOR AN
ORDER ASSIGNING RIGHT TO PAYMENT OF EARNINGS
Motion filed on 5/31/22.
MOVING PARTY: Plaintiff Capitol Indemnity Corporation
RESPONDING PARTY: Defendant Gary G. Topolewski
NOTICE: ok
RULING: The unopposed motion is granted.
On 2/23/22, judgment was entered in favor of
Plaintiff/Judgment Creditor Capitol Indemnity Corporation (Plaintiff) and
against Defendant/Judgment Debtor Gary G. Topolewski in the amount of
$202,044.37, including $100,000.00 in punitive damages, for the filing and
recording of a false acknowledgement and satisfaction of judgment by Defendant. (See 2/23/22 Judgment). The judgment remains unsatisfied. (Goodman Decl.). Although Defendant has filed an appeal, no
undertaking has been filed to stay the enforcement of the judgment. See CCP 917.1.
During the punitive damage phase of the trial, Defendant
testified regarding his wealth and
earnings. (Goodman Decl.). Defendant testified that he published a book
entitled "WHEN IT GETS DARK". Id. Upon investigating this asset, Plaintiff
discovered that the book is offered for sale on Amazon.com, Inc. (Amazon). Id.
Since it would be difficult or impossible to direct the
sheriff to timely serve a notice of levy and writ of execution after the
obligation for payment from Amazon to Defendant matures but before remittance
occurs, on 5/31/22, Plaintiff filed the instant motion seeking an order
assigning right to payment of earnings, royalties or commissions from Amazon to
Defendant from book sales of Defendant’s book entitled “WHEN
IT GETS DARK,” published 1/1/19.
Plaintiff has not opposed the motion.
CCP 708.510 provides:
(a) 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.
(e) When earnings or periodic
payments pursuant to a pension or retirement plan are assigned pursuant to
subdivision (a), the amount of the earnings or the periodic payments assigned
shall not exceed the amount that may be withheld from a like amount of earnings
under Chapter 5 (commencing with Section
706.010) (Wage Garnishment Law).
(f) Where a specific amount of the
payment or payments to be assigned is exempt by another statutory provision,
the amount of the payment or payments to be assigned pursuant to subdivision
(a) shall not exceed the amount by which the payment or payments exceed the
exempt amount.
Based on the foregoing, the motion is granted to assist
Plaintiff in the collection of the judgment from prospective earnings which Defendant
will receive from the sales of his book,
“WHEN IT GETS DARK.”