Judge: Stephen P. Pfahler, Case: PS019107, Date: 2023-12-13 Tentative Ruling

Case Number: PS019107    Hearing Date: December 13, 2023    Dept: F49

Dept. F-49

Date: 12-13-23

Case #PS019107

THIRD PARTY CLAIM OF EXEMPTION

MOVING PARTY: Third Party, Alicia Rodriguez

RESPONDING PARTY: Judgment Creditor, Premier Financial Services, LLC

RELIEF REQUESTED

Third Party Claim of Exemption

OSC re: Preliminary Injunction

SUMMARY OF ACTION

On January 17, 2017, Premier Financial Services, LLC filed a Application for Entry of Sister State Judgment. The petition incorporates a certified copy of a default judgment entered in Lake County Florida by Premier Services against BEM Properties, LLC, and Edward Gonzalez for $63,3809.19. Abstracts of judgment were issued on December 18, 2017, and May 10, 2023, which led to writs of execution.

RULING: Denied.

Third party Alicia Rodriguez moves for a claim of exemption on grounds that while Rodriguez is the spouse of judgment debtor Edward Gonzalez, the debt was incurred prior to their marriage. Rodriguez maintains the levied bank account existed before marriage and remains sole separate property. [Declaration of Alicia Rodriguez.]

On September 11, 2023, the court granted the ex parte hearing staying any writ of execution by the San Mateo County Sheriff on the Chase Bank account attaching $52,628.37. The court ordered Rodriguez to duly file and serve any new motion per statutory code, but no new items were filed.

Judgment Creditor filed a timely opposition. Judgment Creditor challenges the exemption on grounds of insufficient evidence establishing separate property in that the declaration of Rodriguez only shows a printout of the account, without any proof that any and all of the funds in the account are solely Rodriguez’s property without any contribution from Judgment Debtor.

Code of Civil Procedure section 720.330 states:

Promptly after receipt of the notice of the hearing on the third-party claim, the levying officer shall file the following papers with the court:

(a) The third-party claim that was filed with the levying officer pursuant to Section 720.120 or 720.220.

(b) Any statement filed by the creditor with the levying officer pursuant to Section 720.280 in opposition to the third-party claim of a secured party.

(c) Any undertaking of the creditor filed with the levying officer pursuant to Section 720.160 or Section 720.260.

(d) Any undertaking to release filed by a third person pursuant to Chapter 6 (commencing with Section 720.610).

(e) Any notice filed by a public entity pursuant to Section 720.160 or Section 720.260.

“At a hearing on a third-party claim, the third person has the burden of proof.” (Code Civ. Proc., § 720.360.) A claimant may make an argument for exemption: “In the case of community property, by the spouse of the judgment debtor, whether or not the spouse is also a judgment debtor under the judgment.” (Code Civ. Proc., § 703.020, subd. (b)(2); See, § 703.110.)

The entire claim depends on the declaration of Rodriguez without any exhibits, though referenced by Judgment Debtor in opposition. Again, the court invited Rodriguez to submit any and all evidence and argument in support of the exemption, but no new motion was forthcoming. Thus, even assuming the existence of the account prior to the marriage, other than a claim of separate property in the declaration, Alicia Rodriguez presents no evidence establishing the levied bank account funds constitute separate property within the community property of the marital estate. In other words, the claim of exemption lacks any argument or evidence of no commingled funds (deposits from both parties) into the account, thereby establishing a clear cut exemption. (See Fam. Code, § 910, et seq.) Without such proof, the court finds Rodriguez fails to establish a basis for exemption regardless of whether the account was opened prior to the marriage or not.

The application also lacks any alternative basis of relief. (See Code Civ. Proc., §§ 703.580, subd. (b), 706.051, subd. (b).).

The third party claim is therefore denied. Third party claimant also otherwise presents no new and separate application or support for the preliminary injunction. Given the lack of any exemption, the court finds no basis for a preliminary injunction, and dissolves the temporary restraining order enjoining the San Mateo County Sheriff from levying the account.

Judgment Creditor to provide notice.