Judge: Michael P. Linfield, Case: 22STCP02295, Date: 2023-02-24 Tentative Ruling
Case Number: 22STCP02295 Hearing Date: February 24, 2023 Dept: 34
SUBJECT: Motion
for Amended Assignment Order
Moving Party: Judgment
Creditor Ward and Smith, P.A.
Resp. Party: None
Judgment Creditor’s Motion for
Amended Assignment Order is DENIED.
BACKGROUND:
On June 14, 2022, Judgment Creditor Ward and
Smith, P.A. filed its Application for Entry of Judgment on Sister-State
Judgment against Judgment Debtor Muzik, Inc.
On June 17, 2022, the Clerk’s Office issued
the Court’s Judgment Based on Sister-State Judgment.
On January 10, 2023, the Court issued an
Assignment Order in this matter.
On January 30, 2023, Judgment Creditor filed
its Motion for Amended Assignment Order. Judgment Creditor concurrently filed:
(1) Proposed Order; and (2) Proof of Service.
Judgment Debtor has not filed an opposition
or other response to the Motion.
ANALYSIS:
I.
Legal Standard
“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 . . . .” (Code
Civ. Proc., § 708.510, subd. (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.” (Code Civ. Proc., § 708.520,
subd. (a).)
“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.”
(Code Civ. Proc., § 708.520, subdivision (b).)
“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, subd. (d).)
II.
Discussion
Judgment Creditor moves the Court to
amend its Assignment Order to include language that would notice Judgment
Debtor that failure to comply with the Court’s Assignment Order may subject the
judgment debtor being held in contempt of court. (Motion, p. 4:10–12 and Ex. A,
p. 4:1–3.) Judgment Creditor argues that, pursuant to Code of Civil Procedure
section 708.520, subdivision (d), the Court made an error of law in striking
such a notice from the Assignment Order as Judgment Creditor originally proposed
it. (Motion, p. 3:22–27.)
The Motion is unopposed.
The Court disagrees with Judgment
Creditor’s argument.
Judgment Creditor errs in not recognizing
assess that an assignment order pursuant to Code of Civil Procedure section
708.510 is different from a restraining order pursuant to Code of Civil
Procedure section 708.520. However, these orders are different, and the Court
of Appeal has discussed the statutory procedure when a judgment creditor
applies for a restraining order pursuant to section 708.520.
“Section 708.510 authorizes a
court, upon the motion of a judgment creditor, to order a judgment debtor to
assign a right to payment to the judgment creditor. Thus, section 708.520 requires a
judgment creditor who applies for a restraining order to do so either at the
same time as it applies for an assignment order under section 708.510 or at any time
after it has done so.” (Landstar Global Logistics, Inc. v. Robinson &
Robinson, Inc. (2013) 216 Cal.App.4th 378, 390.)
In Judgment Creditor’s Motion for an
Assignment Order, Judgment Creditor moved the Court to issue an assignment
order. The Court granted this motion. Judgment Creditor did not request that
the Court issue a restraining order and no such Order was issued. As a restraining order was not requested or
issued, and as section 708.510 does not require that an assignment order have a
notice of contempt, the Court did not err in striking the notice of contempt
from the assignment order.
At this time, Judgment Creditor has
not made a showing of need for a restraining order. (Code Civ. Proc., §
708.520, subd. (b).) In addition, the Court declines to exercise its discretion
pursuant to Code of Civil Procedure section 708.510, subdivision (a) to amend
the current Assignment Order or to issue a new one that would include the
notice of contempt.
III.
Conclusion
Judgment Creditor’s Motion for
Amended Assignment Order is DENIED.