TENTATIVE RULING

Calendar:  9

Date: 12/16/2022

Case No: EC 061238

Case Name: Investment Retrievers, Inc. v. White, individually and dba Advanced Brothers Electrical dba Advanced Bros Electrical

MOTION FOR EARNINGS WITHHOLDING ORDER

Moving Party: Plaintiff/Judgment Creditor Investment Retrievers, Inc.     

Responding Party:      Spouse of Judgment Debtor Richard M. White, Dina White  (No Opposition)  

RELIEF SOUGHT: 

Order authorizing the issuance of an earnings withholding order against the wages of Dina White, the spouse of defendant Richard M. White.

FACTUAL AND PROCEDURAL BACKGROUND:

On September 19, 2013, plaintiff Investment Retrievers, Inc. filed a Complaint for breach of contract against defendant Richard M. White, individually and dba Advance Bros Electrical, alleging that defendant entered into a written agreement with plaintiff’s predecessor in interest, Wells Fargo Bank, N.A., for the procurement by defendant of a credit card account.  The complaint alleges that on or about December 28, 2009, defendant breached the agreement by failing to make the minimum monthly payments as required by the terms and conditions of the customer agreement. 

On April 28, 2014, plaintiff filed a request for entry of default of Richard M. White, individually and dba Advanced Brothers Electrical dba Advanced Bros Electrical, which default was entered as requested the same date. 

On April 28, 2014, Judgment by the Clerk by Default was entered in favor of plaintiff and against defendant in the total sum of $38,580.03.  Notice of Entry of Judgment was filed by plaintiff on May 28, 2014. 

ANALYSIS:

Plaintiff/Judgment Creditor seeks by this motion an order authorizing the issuance of an earnings withholding order against the wages of the spouse of defendant/judgment debtor. 

The motion is brought under CCP section 706.109, which provides:

“An earnings withholding order may not be issued against the earnings of the spouse of a judgment debtor except by court order upon noticed motion.”

While community property is subject to enforcement of debts, the authority is very general under CCP section 695.020:

“(a) Community property is subject to enforcement of a money judgment as provided in the Family Code.

 

(b) Unless the provision or context otherwise requires, if community property that is subject to enforcement of a money judgment is sought to be applied to the satisfaction of a money judgment:

 

  (1) Any provision of this division that applies to the property of the judgment debtor or to obligations owed to the judgment debtor also applies to the community property interest of the spouse of the judgment debtor and to obligations owed to the other spouse that are community property.

 

(2) Any provision of this division that applies to property in the possession or under the control of the judgment debtor also applies to community property in the possession or under the control of the spouse of the judgment debtor.”

Family Code section 760 provides:

“Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.”

Family Code section 910(a) provides:

“Except as otherwise expressly provided by statute, the community estate is liable for a debt incurred by either spouse before or during marriage, regardless of which spouse has the management and control of the property and regardless of whether one or both spouses are parties to the debt or to a judgment for the debt.”

Family Code section 911 provides an exception with respect to earnings:

“(a) The earnings of a married person during marriage are not liable for a debt incurred by the person's spouse before marriage. After the earnings of the married person are paid, they remain not liable so long as they are held in a deposit account in which the person's spouse has no right of withdrawal and are uncommingled with other property in the community estate, except property insignificant in amount.”

Pursuing the community interest in the wages of the spouse is a viable method of satisfying the judgment, but currently the following problems appear:

1) The evidence submitted that Richard White and Dina White are married is a

copy of a grant deed from July 6, 1995, which is not authenticated.  Usually, a

certified marriage certificate is provided. 

2) There is no evidence submitted, other than the information and belief of an

employee of plaintiff, that judgment debtor is still married to the spouse. [Jones

Decl., para. 4].  No records from the files reviewed are submitted to support this

information and belief. 

3) There is no evidence submitted, other than the information and belief of an

employee of plaintiff, that the spouse is actually employed by the employer

identified, City of Hope Medical Group.  [Jones Decl., para. 5].  The declaration

references an “investigation,” without submitting a copy of any investigation report, or any items from defendant’s credit file, and vaguely states that “This determination was made by verifying her employment with The Work Number which confirmed she’s an employee of the City of Hope Medical Group.”   [Decl., para. 5].  The declaration does not explain what “The Work Number” is or why it would be a reliable source for establishing employment status.  Such status is normally established through testimony of the judgment debtor during an examination, for example, or by confirmation from the employer, or reliable evidence collected by an investigation, and submitted with the motion.  

4) It is not clear that the court has jurisdiction over this third party, a spouse of the party, who was never part of the underlying action and never appeared to submit to the jurisdiction of the court.  The only person served with this motion, by mail, is the judgment debtor.  

Although it is not clearly stated in the statutes that personal service of such a motion is required, according to the California Practice Guide: Enforcing Judgments and Debts (The Rutter Group, Judge Alan M. Ahart, 2022 rev.), where a withholding order against a judgment debtor’s spouse is sought for a debt incurred after marriage, as a “Practice Pointer:” 

“The motion and supporting papers should be personally served on both the judgment debtor and the nondebtor spouse.” 

[Enforcing Judgments and Debts, 6:1105.1].

The failure to serve the spouse in any manner here, or to obtain personal jurisdiction over the spouse, potentially gives rise to constitutional due process concerns, and the motion is therefore be denied without prejudice to the judgment creditor bringing a noticed motion supported by appropriate evidence, and appropriately served and noticed. 

 

RULING:

[No Opposition].

Motion for Order Authorizing Issuance of Earning Withholding Order is DENIED WITHOUT PREJUDICE.  There is no proof of service showing that the Court has obtained personal jurisdiction over the spouse.  Judgment creditor has also failed to provide admissible evidence concerning whether the parties were married at the time the debt was incurred, whether they remain married, and whether and where the spouse is employed, so that there are earnings to be withheld.    

UNOPPOSED Request for Judicial Notice is GRANTED. 

GIVEN THE CORONAVIRUS CRISIS, AND TO ADHERE TO HEALTH GUIDANCE THAT DICTATES SAFETY MEASURES, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance.  Please note that LACourtConnect/Microsoft Teams offers free audio and video appearance. Counsel and parties (including self-represented litigants) are encouraged not to personally appear.  With respect to the wearing of face masks, Department D recognizes that currently, the Los Angeles Department of Public Health strongly recommends masks indoors, especially when interacting with individuals whose vaccination status is unknown; for individuals who have a health condition that puts them at higher risk for severe illness; individuals who live with someone who is at higher risk; and for individuals who are around children who are not yet eligible for vaccines.  In accordance with this guidance, it is strongly recommended that anyone personally appearing in Department D wear a face mask.  The Department D Judge and court staff will continue to wear face masks.  If no appearance is set up through LACourtConnect/Microsoft Teams, or otherwise, then the Court will assume the parties are submitting on the tentative.