Judge: Monica Bachner, Case: BC367107, Date: 2023-01-13 Tentative Ruling

Case Number: BC367107    Hearing Date: January 13, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Hearing on Defendant’s claim of exemption is continued to February 22, 2023 at 8:30 a.m.  

          The assignee of record, Creative Judgment Solutions (“Assignee”), filed a Notice of Hearing on Claim of Exemption and a Notice of Opposition to Claim of Exemption on December 13, 2022. Plaintiff requests that Defendant Kathleen Latham (“Defendant”) appear and produce copies of tax returns for the last three years. (Opposition to Claim of Exemption, Items 5(c) and 6.)  

          The original judgment in this action was issued to Plaintiff Barry K. Rothman (“Plaintiff”) on June 26, 2007. (Writ of Execution, Item 5.) The judgment was subsequently renewed on June 24, 2016. (Writ of Execution, Item 6.) Plaintiff has assigned the judgment to Assignee and the court issued a Writ of Execution to Assignee on August 3, 2022. Assignee filed a Notice of Hearing on Claim of Exemption and a Notice of Opposition to Claim of Exemption on December 13, 2022.

          At a hearing on a claim of exemption, “the [judgment debtor] has the burden of proof.” (Code Civ. Proc., § 703.580, subd. (b).) In meeting this burden, the judgment debtor must establish the right by evidence or facts; an affidavit which merely follows the language of the statute and states nothing more than conclusions of law is insufficient.¿(Le Font v.¿Rankin¿(1959)¿167¿Cal.App.2d 433, 435.)

Here, there is no record of Defendant filing a claim of exemption or providing Assignee with a notice of a claim of exemption. Code of Civil Procedure, section 703.520 provides that a claimant may make a claim of exemption by filing with the levying officer a claim of exemption and a copy of the claim. (Code Civ. Proc., § 703.520, subd. (a).) A claim of exemption by a claimant must include a description of the property claimed to be exempt and a supporting code citation. (Code Civ. Proc., § 703.520, subds. (b)(3) and (b)(4).) Without a copy of the claim of exemption, the Court is unable to evaluate what assets Defendant claims are exempt from this judgment.

Once a claimant files a claim of exemption with the levying officer, the levying officer is to serve the judgment creditor with a copy of the claim of exemption and a notice that the property will be released unless a copy of the notice of opposition to the claim of exemption and a copy of the notice of motion for an order determining the claim of exemption are timely filed with the levying officer. (Code Civ. Proc., §703.540.) “Within 15 days after service of the notice of claim of exemption, a judgment creditor who opposes the claim of exemption shall file with the court a notice of opposition to the claim of exemption and a notice of motion for an order determining the claim of exemption and shall file with the levying officer a copy of the notice of opposition and a copy of the notice of motion. Upon the filing of the copies of the notice of opposition and notice of motion, the levying officer shall promptly file the claim of exemption with the court. If copies of the notice of opposition and notice of motion are not filed with the levying officer within the time allowed, the levying officer shall immediately release the property to the extent it is claimed to be exempt.” (Code Civ. Proc., § 703.550.)

Assignee has filed a notice of hearing on claim of exemption on form WG-010/EJ-175. However, there is no filed claim of exemption. This might be because the levying officer did not file it, never received a copy of Assignee’s notice of opposition, or because Assignee did not timely serve a copy of the notice of opposition on the levying officer. Assignee provides proof of service of the Notice of Hearing on Claim of Exemption and the Notice of Opposition to Claim of Exemption to the levying officer by mail on December 13, 2022. Because there is no proof of service for the notice of claim of exemption, the Court cannot determine if Assignee properly served the levying officer the required documents within the 15-day timeframe, or if the levying officer was properly served and errored by not filing the claim of exemption.

          Code of Civil Procedure, section 703.580, subdivision (f) states, “Unless otherwise ordered by the court, if an exemption is not determined within the time provided by Section 703.570, the property claimed to be exempt shall be released.” Code of Civil Procedure, section 703.570 allows a court to continue the hearing on a finding of good cause. The Court must continue this hearing because not all the papers needed for determination are filed. It is unclear why the levying officer did not file the claim of exemption with the court after Assignee served the levying officer on December 13, 2022.

Based on the foregoing, the hearing on this claim of exemption is continued.

Dated:  January 13, 2023

Hon. Monica Bachner

Judge of the Superior Court