Judge: Stephen I. Goorvitch, Case: 24STCV19268, Date: 2024-08-16 Tentative Ruling

Case Number: 24STCV19268    Hearing Date: August 16, 2024    Dept: 82

Suzanne Rene Aslanyan v. Wells Fargo Bank, et al.

Case No. 24STCV19268

Ex Parte Application to Stop Levy on Bank Account and

Motion for Preliminary Injunction

            Plaintiff Suzanne Rene Aslanyan (“Plaintiff”) filed this action against Wells Fargo Bank (“Wells Fargo”) and the California Department of Tax and Fee Administration (the “CDTFA”) (collectively, “Defendants”) asserting causes of action for claim and delivery and conversion.  Plaintiff alleges that the CDTFA levied $126,975.02 from her bank account to satisfy a tax debt of her husband, Sevan Aslanyan.  Plaintiff states in her declaration that she has been married to Sevan Aslanyan since 1988.  (Declaration of Suzanne Rene Aslayan, ¶ 2.)  Plaintiff states that she and her husband separated in 2006, at which point they “expressly agreed to maintain separate properties and obligations,” citing a formal written agreement.  (Ibid.)  Plaintiff states that she and her husband never filed for divorce for religious reasons.  (Id. ¶ 2.)  Plaintiff also suggests that the tax liability at issue existed before the separation agreement: “I recall that when we both signed the Martial Agreement, it was acknowledged by both of us that the tax liability which has become the basis for the levy by the California Department of Tax and Fee Administration (‘CDTFA’) was solely only against Seven Aslanyan for his business debts, not myself.”  (Id. ¶ 4.)    

            Plaintiff filed an “ex parte application to stop levy on bank accounts and motion for a preliminary injunction.”  Specifically, Plaintiff seeks an order “enjoining further levies and withdrawals of funds from Plaintiff’s personal and separate bank accounts.”  The court construes this pleading as an ex parte application for a temporary restraining order and an order to show cause why a preliminary injunction should not issue.   

            Plaintiff relies on a martial agreement, effective January 25, 2006, which states: “The parties do not presently contemplate a separation and have no present intention of obtaining a dissolution of their marriage.”  (Declaration of Suzanne Rene Aslayan, Exh. A, ¶ D.)  However, the agreement states that all property set forth in Exhibit C and “any property acquired by Suzanne during the marriage by gift, bequest, devise or inheritance shall be and will remain her separate property.”  (Id., Exh. A, ¶ 7(a).)  The agreement states that all property set forth in Exhibit D and any property acquired by Sevan during the marriage by gift, bequest, devise or inheritance shall be and will remain his separate property.  (Id., Exh. A, ¶ 7(b).  There is nothing listed in Exhibit C or Exhibit D.  (Id., Exhs. C & D.)  Plaintiff and her husband agreed that each’s earnings and income will remain separate property.  (Id. ¶ 13.) 

            The agreement does not expressly reference the CDTFA’s lien.  It states only: “Sevan may be liable for certain other debts and obligations incurred in connection with the prior operation of A&K, Inc., a corporation, including personal liability to the State of California for sales tax liabilities (State) . . . .  Sevan agrees to indemnity and hold Suzanne harmless from any and all Nondischargeable Obligations claims which . . . the State, or the other creditors of A&K, Inc. may have, or claim to have, as against Suzanne and/or her property, including all separate property which is confirmed as Suzanne’s, or which she may acquire, pursuant to the terms of this agreement.”  (Id. Exh. A, ¶ 18.) 

In deciding whether to grant a temporary restraining order, the court looks to two factors, including “(1) the likelihood that the plaintiff will prevail on the merits, and (2) the relative balance of harms that is likely to result from the granting or denial of interim injunctive relief.”  (White v. Davis (2003) 30 Cal.4th 528, 553-54.)  The factors are interrelated, with a greater showing on one permitting a lesser showing on the other.  (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1420.)  If the balancing of harms strongly favors the moving party, there need only be “some possibility” that the moving party will prevail on the merits.  (Jamison v. Department of Transportation (2016) 4 Cal.App.5th 356, 362, citing Butt v. State of California (1992) 4 Cal.4th 668, 678.)  A preliminary mandatory injunction is rarely granted.  (See Board of Supervisors v. McMahon (1990) 219 Cal.App.3d 286, 295; see also Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 625.)  “The granting of a mandatory injunction pending trial is not permitted except in extreme cases where the right thereto is clearly established.”  (Teachers Ins. & Annuity Ass’n v. Furlotti (1999) 70 Cal.App.4th 1487, 1493.)

            As an initial matter, Plaintiff’s proposed order seeks a return of the funds seized from her bank account.  That issue is not properly before the court.  That remedy was not requested in the notice, which seeks only an order “enjoining further levies and withdrawals of funds from Plaintiff’s personal and separate bank accounts.”  Even if the court construed this application as seeking a writ of possession, that remedy is not available for property that has been taken for “a tax, assessment, or fine,” per Code of Civil Procedure section 512.010(b).

            To the extent Plaintiff seeks an order preventing future levy by the CDTFA, Plaintiff has not served the summons and complaint on the CDTFA and she articulates no reason why she could not do so.  Regardless, reaching the merits, Plaintiff does not demonstrate a sufficient likelihood of success on the merits.  Based upon her declaration, this tax debt was incurred during the marriage stemming from her husband’s business.  Plaintiff does not demonstrate that before 2006, her husband’s business and all assets/liabilities were separate property. 

            Plaintiff also argues that the CDTFA cannot levy more than 25 percent of her income, per Code of Civil Procedure sections 704.070 and 706.050.  Section 706.050 applies to an “earnings withholding order,” i.e., wage garnishment.  This section does not preclude the CDTFA from seizing money from bank accounts. 

            Based upon the foregoing, Plaintiff does not demonstrate a sufficient likelihood of success on the merits.  Therefore, the ex parte application for a temporary restraining order is denied.  Plaintiff’s counsel shall provide notice and file proof of service with the court.