Judge: Peter A. Hernandez, Case: 21PSCP00166, Date: 2022-09-29 Tentative Ruling

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Counsel may submit on the tentative rulings by calling the clerk in Dept. O at 909-802-1126 before 8:30 the morning of the hearing. Submission on the tentative does not bind the court to adopt the tentative ruling at the hearing should the opposing party appear and convince the court of further modification during oral argument.

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Case Number: 21PSCP00166    Hearing Date: September 29, 2022    Dept: O

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)

The hearing on Claim of Exemption was originally set for September 15, 2022; at that time, the court noted that Plaintiff/Judgment Creditor had failed to provide sufficient notice of the hearing and continued the hearing to September 29, 2022. Counsel for both Plaintiff/Judgment Creditor and Defendant/Judgment Debtor both appeared on September 15, 2022 and are thus aware of the continued hearing date. The court proceeds to the merits.

MERITS:

The maximum amount of disposable earnings of an individual judgment debtor for any workweek that is subject to levy under an earnings withholding order must not exceed the lesser of the following: (1) 25% of the individual's disposable earnings for that week or (2) 50% of the amount by which the individual's disposable earnings for that week exceed 40 times the state minimum hourly wage in effect at the time [i.e., $14.00 per hour for employers with 25 or fewer employees and $15.00 per hour for employers with 26 or more employees, as of January 1, 2022; see Lab. Code, § 1182.12.]. If the local minimum hourly wage is greater than the state minimum hourly wage, the local minimum hourly wage in effect at the time the earnings are payable is to be used for this calculation. (See Ahart, supra, at ¶ 6:1170; Code Civ. Proc., § 706.050, subd. (a).) For a biweekly pay period, the multiplier used to determine the maximum amount of disposable earnings subject to levy under an earnings withholding order that is proportional to the above calculation is as follows: multiply the applicable hourly minimum wage by 80 work hours. Code Civ. Proc., § 706.050, subd. (a).) “Disposable earnings” are those earnings remaining after deduction of any amounts required by law to be withheld. (Code Civ. Proc., § 706.011, subd. (a).)

In addition to the automatic exemption for nonsupport withholding orders, that portion of an employee's earnings necessary for the support of the judgment debtor or his or her family is exempt from nonsupport earnings withholding orders (Code Civ. Proc., § 706.051, subds. (a),(b)).

The exemption claimant has the burden of proof. (Code Civ. Proc., § 703.580, subd. (b).)

Defendant/Judgment Debtor represents in his Claim of Exemption that all of his earnings are needed to support himself of his family. Defendant/Judgment Debtor, however, has not identified any expenses or any debts.

Defendant/Judgment Debtor is paid every two weeks. Defendant/Judgment Debtor is willing to have $200.00 withheld from his earnings each pay period during the withholding period. Defendant/Judgment Debtor represents, in his accompanying Financial Statement, that his gross monthly pay is $6,337.00 and that his monthly net is $4,745.00.

The earnings statement attached to Defendant/Judgment Debtor’s Claim of Exemption, however, reflect that he has a bimonthly gross pay of $3,328.17 (i.e., $237.73/day). The court’s calculations reflect that this equates to a monthly gross of $7,230.9541. (i.e., $237.73 (x) 365 days = $86,771.45, (/) 12 months). His monthly net (before the $701.98 garnishment) is $5,174.6354 (i.e., $1,679.77 (+) $701.98 = $2,381.75 (/) 14 days = $170.125 (x) 365 days = $62,095.625, (/) 12 months).

Under Code of Civil Procedure § 706.050, subdivision (a), the maximum amount of Defendant/Judgment Debtor’s disposable earnings for any workweek that is subject to levy under an earnings withholding order must not exceed the lesser of the following: (1) 25% of his disposable earnings for that week (here, $237.73 (x) 7 = $1,664.11 (x) 25% = $416.0275 or (2) 50% of the amount his disposable earnings for the biweekly work period (i.e., $3,328.22) exceed the applicable hourly minimum wage ($15.00) multiplied by 80 work hours (i.e., $1,200.00).

The court’s calculations indicate that the maximum amount that may be garnished per bimonthly pay period is $416.03 pursuant to Code of Civil Procedure § 706.050, subdivision (a). The court determines that Defendant/Judgment Debtor is entitled to an automatic exemption of any amount in excess of $416.03 per bimonthly pay period. The court will hear further from the parties in this regard.