Judge: Melvin D. Sandvig, Case: PC051340, Date: 2023-12-12 Tentative Ruling

Case Number: PC051340    Hearing Date: December 12, 2023    Dept: F47

Dept. F47

Date: 12/12/23

Case #PC051340

HEARING ON CLAIM OF EXEMPTION

Notice of Hearing on Claim of Exemption filed 11/14/23.

JUDGMENT CREDITOR: Plaintiff Magdalena V. Guerrero

JUDGMENT DEBTOR: Defendant Yesenia Guerrero

CLAIMANT: Hugo M. Cervantes (Defendant/Judgment Debtor’s spouse)

NOTICE: ok

RULING: The claim of exemption is denied. 

On 8/14/19, Judgment was entered in favor of Plaintiff Magdalena V. Guerrero (Plaintiff) and against Defendant Yessenia Guerrero (Defendant) in the amount of $74,386.07.  On 11/6/23, Defendant’s spouse, Hugo M. Cervantes submitted a Claim of Exempt on claiming that an unidentified “personal checking account” at Wells Fargo is exempt from being used to satisfy the judgment pursuant CCP 704.070.

On 11/14/23, Plaintiff filed and served a Notice of Hearing on Claim of Exemption and Opposition to the Claim of Exemption.

CCP 704.070 provides:

“(a) As used in this section:

(1) ‘Earnings withholding order’ means an earnings withholding order under Chapter 5 (commencing with Section 706.010) (Wage Garnishment Law).

(2) ‘Paid earnings’ means earnings as defined in Section 706.011 that were paid to the employee during the 30-day period ending on the date of the levy. For the purposes of this paragraph, where earnings that have been paid to the employee are sought to be subjected to the enforcement of a money judgment other than by a levy, the date of levy is deemed to be the date the earnings were otherwise subjected to the enforcement of the judgment.

(3) ‘Earnings assignment order for support’ means an earnings assignment order for support as defined in Section 706.011.

(b) Paid earnings that can be traced into deposit accounts or in the form of cash or its equivalent as provided in Section 703.080 are exempt in the following amounts:

(1) All of the paid earnings are exempt if prior to payment to the employee they were subject to an earnings withholding order or an earnings assignment order for support.

(2) Disposable earnings that would otherwise not be subject to levy under Section 706.050 that are levied upon or otherwise sought to be subjected to the enforcement of a money judgment are exempt if prior to payment to the employee they were not subject to an earnings withholding order or an earnings assignment order for support.”

The funds being held by Wells Fargo are pursuant to a bank levy, not a wage garnishment.  Claimant does not assert that the funds ($100,149.50) held by the Garnishee (Wells Fargo Bank) pursuant to the Memorandum of Garnishee constitute wages earned within the past 30 days.  In fact, Claimant asserts that his monthly income is $0.00.  Therefore, the funds at issue cannot qualify as exempt wages of Claimant. 

A creditor, such as Plaintiff, may levy on bank accounts in the name of the debtor’s spouse whether they are in the name of spouse alone or together with other third parties as long as an affidavit was delivered to the financial institution at the time of levy showing that person is the judgment debtor’s spouse.  CCP 700.160(b)(2).  It is not necessary to name the non-debtor spouse as a defendant in the action to enforce the judgment against the debtor’s community property.  See CCP 700.160; Family Code 910.

Claimant has failed to establish that the subject funds are exempt.