Judge: Monica Bachner, Case: 18STCV01766, Date: 2023-01-27 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 18STCV01766    Hearing Date: January 27, 2023    Dept: 71

 

 

Superior Court of California 

County of Los Angeles 

 

DEPARTMENT 71 

TENTATIVE RULING 

 

JENG SUK KIM, 

 

         vs. 

 

RICKY NOH.

 Case No.:  18STCV01766

 

 

 

 Hearing Date:  January 27, 2023 

 

Plaintiff Jeng Suk Kim’s motion for assignment of rents is denied.  

  

Plaintiff Jeng Suk Kim (“Kim”) (“Plaintiff” or “Judgment Creditor”) moves for an order assigning him all payment due or to become due to Defendant Ricky Noh aka Ricky Seng Gon Noh (“Noh”) (“Defendant” or “Judgment Debtor”) from MC Crew, Ltd., and/or The Style N., Inc. (collectively, “Debtor’s Corporations/Tenants”) beginning on June 1, 2022, until the outstanding judgment in this matter is satisfied.  (Notice of Motion, pg. 1; C.C.P §708.510.)  Plaintiff’s motion is made on the grounds that Plaintiff holds an unsatisfied judgment in excess of $2,250,000 against Defendant and Defendant is the one hundred percent owner of Debtor’s Corporations/Tenants, who are paying Defendant $16,500 per month in rent for the commercial property at 8820 Miner Street, Los Angeles (“Miner Street Property”).  (Notice of Motion, pg. 1.)

 

Request for Judicial Notice

 

Defendant’s April 26, 2022, request for judicial notice of the Petition for Dissolution of Marriage, In re Hea Jung Shin and Ricky Seung Gan Noh, Los Angeles Superior Court Case No. 18STFL10823, is granted.  (D-RJN, Exh. 1.)  Defendant’s request for judicial notice of Findings and Order After Hearing dated December 6, 2018, from In re Hea Jung Shin and Ricky Seung Gan Noh, Los Angeles Superior Court Case No. 18STFL10823, is granted.  (D-RJN, Exh. 2.)

 

Background 

 

On November 10, 2021, this Court entered judgment in favor of Plaintiff in the amount of $2,250,000.00.  (Judgment.)  The judgment remains unpaid.  (Decl. of Biggins ¶2.)  On November 26, 2021, Defendant was served with a notice of his debtor’s examination.  (Decl. of Biggins ¶3.)  On January 14, 2022, Defendant filed an appeal but did not post an appeal bond, and as such, there is no stay on enforcement of judgment.  (Decl. of Biggins ¶4.)  On February 17, 2022, Defendant sat for his debtor’s examination and produced documents related to his financial condition; the debtor’s examination was not transcribed for lack of a court reporter.  (Decl. of Biggins ¶5.)  Plaintiff filed the instant motion on April 12, 2022.  Defendant filed his opposition on April 26, 2022.  As of the date of this hearing, Plaintiff has not filed a reply.

 

Motion for Assignment Order

 

C.C.P. §708.510 provides, as follows:

 

  1. 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.  Rents.

 

. . .

 

  1. 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.

 

  1. A right to payment may be assigned pursuant to this article only to the extent necessary to satisfy the money judgment.

 

(C.C.P. §§708.510(a), (c), (d), emphasis added.)

 

Service of the order for a debtor’s examination creates a lien on the personal property of the judgment debtor for a period of one year from the date of the order unless extended or sooner terminated by the court.  (C.C.P. §708.110(d).)

 

          Plaintiff argues the notice of the debtor’s examination was served on Defendant on November 26, 2021, and as of the date of Plaintiff’s motion, the lien was currently in effect.  However, as of the date of this hearing, the lien is no longer in effect.  However, this court in its discretion extends the order under C.C.P. §708.110(d), as the instant motion was continued twice and had been timely filed.  Plaintiff declares Defendant owns the Miner Street Property and collects rents from Debtor’s Corporations/Tenants totaling $16,500 per month.  (Decl. of Biggins ¶¶6a, 6b, Exhs. A, B.)

 

          Defendant argues in opposition that Defendant’s wife filed a petition for dissolution of marriage, In re Hea Jung Shin and Ricky Seung Gon Noh, Los Angeles Superior Court Case No. 18STFL10823 (“Family Law Proceeding”), and the court in the Family Law Proceeding ordered rents from the Miner Street Property be deposited into a joint account held by Defendant and his wife.  (Decl. of Noh ¶5; D-RJN, Exhs. 1, 2.)  Defendant declares the family law court further ordered that the mortgage and property taxes on the Miner Street Property be paid by automatic payment from the joint account.  (Decl. of Noh ¶¶6, 7, Exhs. B, C.)

 

          Family Code §2010, which governs the jurisdiction of the family law court, provides that in a dissolution action, the family law court “has jurisdiction to inquire into and render any judgment and make orders that are appropriate concerning . . . [t]he settlement of the property rights of the parties.”  (Fam. Code §2010(e).)  Family Code §2045 also empowers the family law court to issue temporary restraining orders regarding property disposition, including

preventing a party from transferring, encumbering, or disposing of community property.  (Fam. Code §2045(a).)  Further, Family Code §§2550, et seq., commands the family law court to characterize, value, and divide the community’s assets and liabilities.  (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1452.)  “[P]riority of jurisdiction in the marital dissolution context relates to the subject matter of such an action—the marital community’s property interests—and that such jurisdiction commences once the action is underway.”  (Id. at n.13, emphasis added).  After a family law court acquires jurisdiction in a marital dissolution action to characterize, value, and divide the parties’ community property, “no other department of the superior court may issue orders that would adversely affect the family law court’s ability to exercise its reserved jurisdiction.”  (Askew v. Askew (1994) 22 Cal.App.4th 942, 962.)

 

The family law court acquired jurisdiction over Defendant’s marital assets, including the Miner Street Property, on September 6, 2018, before the action in this Court, which was filed on October 18, 2018.  Thus, there is no dispute that the family law court obtained jurisdiction first. It is beyond the jurisdictional authority of this Court to interfere with or invalidate a ruling made by the department first to acquire jurisdiction over the matter until judgment in that matter has become final.  (Levine v. Smith (2006) 145 Cal.App.4th 1131, 1135.)  Consequently, while the Family Law Proceeding is pending in the family court, this Court cannot act to interfere with the family court’s exercise of its powers in that proceeding.  (Dale v. Dale (1998) 66 Cal.App.4th 1172, 1183; Askew, 22 Cal.App.4th at pgs. 961-962.)

 

Based on the foregoing, Defendant’s motion for an order assigning rents is denied.  

 

 

Dated:  January 27, 2023                              

                                                                                                                       

Hon. Monica Bachner 

Judge of the Superior Court