Judge: Peter A. Hernandez, Case: KC062929, Date: 2024-05-15 Tentative Ruling

Case Number: KC062929    Hearing Date: May 15, 2024    Dept: K

Background   

On January 17, 2012, Plaintiff Liberty Mutual Insurance Company (“Plaintiff”) filed a complaint against Defendant Youju Cao aka Julia Cao (“Cao”). On June 13, 2012, default judgment was entered.

On August 9, 2021, a “Notice of Renewal of Judgment” was entered.

Discussion

Plaintiff/Judgment Creditor Liberty Mutual Insurance Company (“Judgment Creditor”) opposes the Claim of Exemption submitted by Cao.

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 of 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 2023) ¶ 6:1192.

“If a notice of opposition to the claim of exemption is filed with the levying officer within the 10-day period, 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 on the claim of exemption, the judgment creditor shall 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 motion is so filed, the hearing on the motion shall be held not later than 30 days from the date the notice of motion was 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).) “After receiving the notice of the hearing and before the date set for the hearing, the levying officer shall file the claim of exemption and the notice of opposition to the claim of exemption with the court.” (Id.)

The Notice of Filing Claim of Exemption states it was mailed on March 12, 2024. The Notice of Hearing on Claim of Exemption and the Notice of Opposition to Claim of Exemption were served on Cao and the levying officer (i.e., the Los Angeles County Sheriff’s Department) on March 19, 2024 and filed with the court on March 20, 2024 and stamped received by the levying officer on March 20, 2024.

The court determines that the opposition is timely.

MERITS:

“Except as otherwise provided in this chapter, the maximum amount of disposable earnings of an individual judgment debtor for any workweek that is subject to levy under an earnings withholding order shall not exceed the lesser of the following:

(1) Twenty percent of the individual's disposable earnings for that week.

(2) Forty percent of the amount by which the individual's disposable earnings for that week exceed 48 times the state minimum hourly wage in effect at the time the earnings are payable. If a judgment debtor works in a location where 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 shall be used for the calculation made pursuant to this paragraph.” (Code Civ. Proc. § 706.050, subd. (a).)

“For any pay period other than weekly, the following multipliers shall be used to determine the maximum amount of disposable earnings subject to levy under an earnings withholding order that is proportional in effect to the calculation described in paragraph (2) of subdivision (a), except as specified in paragraph (1):

(1) For a daily pay period, the amounts shall be identical to the amounts described in subdivision (a).

(2) For a biweekly pay period, multiply the applicable hourly minimum wage by 96 work hours.

(3) For a semimonthly pay period, multiply the applicable hourly minimum wage by 104 work hours.

(4) For a monthly pay period, multiply the applicable hourly minimum wage by 208 work hours.” (Code Civ. Proc. § 706.050, subd. (b).) “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)).

Cao represents that all of her earnings are needed to support herself or her family. (Claim, ¶ 2). Cao is not willing to withhold anything from her earnings each pay period during the withholding period. (Id., ¶ 4). Cao specifies that she is paid every two weeks (Id., ¶ 5), that her gross monthly pay is $5,176.27 (Financial Statement [“FS”], ¶ 2) and that her total monthly income is $3,683.43 (Id., ¶ 2(e).)

Cao fails to identify whether or not she has a spouse or any dependents. (Id., ¶¶ 1 and 9). Cao represents that she has $152.00 in cash and another $2,447.20 in “Chase Bank checking and saving,” $2,784.60 in “East West Bank checking.” (Id., ¶ 3). Cao also represents that she owns a 2005 Toyota Camry worth $800.00, a 2007 Lexus RX350 worth $2,000.00 and a 2010 Toyota Prius worth $2,000.00. (Id.) Cao disavows having any real estate equity or other personal property. (Id.) Cao also disavows having any other income sources. (Id., ¶ 2).

Cao claims that her monthly expenses total $4,285.00, as follows: (1) $2,900.00 for rent or house payment and maintenance; (2) $300.00 for food and household supplies; (3) $415.00 for utilities and telephone; (4) $50.00 for clothing; (5) $80.00 for medical and dental payments; (6) $250.00 for insurance (life, health, accident, etc.); (7) $0 for school, child care; (8) $0 for child, spousal support; (9) $240.00 for transportation and auto expenses (insurance, gas, repair); (10) $0 for installment payments; (11) $50.00 for laundry and cleaning and (12) $0 for entertainment.

Cao advises that an earnings withholding order is now in effect with respect to her earnings, but fails to provide any further information in this regard. (Id., ¶ 7).

The exemption claimant has the burden of proof. (Code Civ. Proc., § 703.580, subd. (b).) Cao’s Financial Statement appears to be incomplete, in that she reports a monthly deficit of $ 601.57 and fails to identify whether she is married.

The court will continue the hearing, to June 3, 2024 at 9:00 a.m., in order to allow Cao to submit additional proof. Cao is to submit a more complete Financial Statement addressing Paragraphs 1, 2(d), 7 and 9 in particular, no later than May 24, 2024.