Judge: Peter A. Hernandez, Case: 21PSCP00166, Date: 2022-09-15 Tentative Ruling

Case Number: 21PSCP00166    Hearing Date: September 15, 2022    Dept: O

The hearing on Defendant Bolivar G. Carrillo aka Bolivar G. Carrilo’s Claim of Exemption is CONTINUED to September 29, 2022 at 9:30 a.m.

Background   

Plaintiff Mercedes Carrillo (“Plaintiff”) alleges as follows: On March 25, 2011, a judgment in Plaintiff’s favor and against Defendant Bolivar G. Carrillo aka Bolivar G. Carillo (“Defendant”) was entered for the sum of $258,800.

On April 2, 2021, Plaintiff filed a “Complaint for Action on Judgment” against Defendant.

On May 9, 2022, a “Stipulation for Entry of Judgment and Order Thereon” was filed.

On May 24, 2022, an abstract of judgment was issued. On May 25, 2022, a writ of execution was issued.

Discussion

Plaintiff/Judgment Creditor opposes the Claim of Exemption submitted by Defendant/Judgment Debtor.

TIMELINESS: A claim of exemption may be made by the judgment debtor any time during the withholding period. (Code Civ. Proc., § 706.105, subd. (a).) An exemption may be claimed only once, however, unless there has been a “material change in circumstances” since the time of the last prior hearing on the earnings withholding order. (Id.)

A judgment creditor wishing to oppose a claim is exemption must file a notice of opposition with the levying officer within 10 days after the notice of claim of exemption was mailed. (Code Civ. Proc., § 706.105, subd. (d).) “(This 10–day period is not extended where the claim of exemption was served by mail; see CCP § 684.310 and Comment to CCP § 706.105.).” Ahart, CAL. PRAC. GUIDE: ENFORCING JUDGMENTS AND DEBTS (The Rutter Group 2021) ¶ 6:1192.

If a notice of opposition is timely filed, the judgment creditor is entitled to a hearing on the claim of exemption. (Code Civ. Proc., § 706.105, subd. (e).) If the judgment creditor desires a hearing, the judgment creditor must file a notice of motion for an order determining the claim of exemption with the court within 10 days after the date the levying officer mailed the notice of claim of exemption. (Id.) “(This 10–day period is not extended where the claim of exemption was served by mail; see CCP § 684.310 and Comment to CCP § 706.105.).” Ahart, supra, at ¶ 6:1195. If the notice of opposition and notice of motion are timely filed, the court hearing on the claim of exemption must be held no more than 30 days after the notice of motion is filed (unless continued by the court for good cause). (Code Civ. Proc., § 706.105, subd. (e).)

The judgment creditor must give written notice of the hearing to the levying officer at least 16 court days prior to the hearing. (Code Civ. Proc., § 706.105, subd. (e); Code Civ. Proc., § 1005, subd. (b).) The judgment creditor must also serve a copy of the notice of opposition and notice of hearing at least 16 court days before the hearing on the judgment debtor at the address set forth in the claim of exemption. (Code Civ. Proc., § 706.105, subd. (e).)

The Notice of Filing Claim of Exemption states it was mailed on August 16, 2022. (Calvin Decl., ¶ 3.) The Notice of Hearing on Claim of Exemption and the Notice of Opposition to Claim of Exemption were filed on August 22, 2022 and mail-served on August 20, 2022 on Defendant, the levying officer (i.e., the Contra Costa County Sheriff’s Office) and Thomas McIntosh (i.e., Defendant’s attorney)

Plaintiff/Judgment Creditor has failed to provide sufficient notice of the hearing. Mail service should have occurred no later than August 18, 2022 for a September 15, 2022 hearing date.[1]

Accordingly, the court will continue the hearing to September 29, 2022 at 9:30 a.m.