Judge Teresa A. Beaudet, Case Number: 21STCV13296, Date: 2023-07-10 Tentative Ruling

On April 7, 2021, Plaintiff Eric Mizrahi (“Mizrahi”) filed this action against Defendants Yehuda Maimon, individually and as Trustee of the Brigitte Mizrahi Living Trust dated June 21, 2018 (“Maimon”) and US Bank National Association (“US Bank”). The Complaint asserts one cause of action for partition by sale of the property.

On June 15, 2021, Maimon filed a Cross-Complaint against Mizrahi and US Bank, alleging causes of action for (1) partition by sale, (2) partition in kind, (3) for accounting and appointment of a receiver, (4) constructive trust, (5) money had and received, and (6) breach of fiduciary duty.

On August 11, 2023, the Court issued an Order granting Maimon’s motion for attorneys’ fees and turnover of court held funds in part. The Court’s August 11, 2023 Order provides, inter alia, that “Maimon’s motion for attorneys’ fees is granted in part. Maimon is awarded attorney’s fees and costs in the amount of $298,472.50. Maimon’s motion ‘for an order from the Court releasing to the Trust the Court held funds in the amount of $12,541.18’ is denied without prejudice…” (August 11, 2023 Order, p. 10.)

On October 3, 2023, an Abstract of Judgment was issued in this action stating, inter alia, that Judgment was entered on August 11, 2023, and that the “[t]otal amount of judgment as entered or last renewed: $298,472.50.” On October 20, 2023, a writ of execution (money judgment) was issued as to the “Judgment entered on…August 11, 2023.”

Maimon states that “[o]n November 27, 2023, the Sheriff’s Department received a Claim of Exemption from Mizrahi.” (Ibrahim Decl., ¶ 13.)

Maimon now moves for an order to deny Mizrahi’s Claim of Exemption in its entirety. The motion is unopposed.

Code of Civil Procedure section 703.550, subdivision (a) provides that “[w]ithin 15 days after service of the notice of claim of exemption, a judgment creditor who opposes the claim of exemption shall file with the court a notice of opposition to the claim of exemption and a notice of motion for an order determining the claim of exemption and shall file with the levying officer a copy of the notice of opposition and a copy of the notice of motion. Upon the filing of the copies of the notice of opposition and notice of motion, the levying officer shall promptly file the claim of exemption with the court. If copies of the notice of opposition and notice of motion are not filed with the levying officer within the time allowed, the levying officer shall immediately release the property to the extent it is claimed to be exempt.”

As an initial matter, Maimon does not appear to provide evidence that he “file[d] with the levying officer a copy of the notice of opposition and a copy of the notice of motion.” (Code Civ. Proc., § 703.550, subd. (a).) The Court notes that no claim of exemption appears to have been filed with the court.

Pursuant to Code of Civil Procedure section 703.580, subdivision (b), “[a]t a hearing under this section, the exemption claimant has the burden of proof.” In addition, “[a]t the conclusion of the hearing, the court shall determine by order whether or not the property is exempt in whole or in part. Subject to Section 703.600, the order is determinative of the right of the judgment creditor to apply the property to the satisfaction of the judgment. No findings are required in a proceeding under this section.” (Code Civ. Proc., § 703.580, subd. (d).) Pursuant to Code of Civil Procedure section 703.580, subdivision (e), “[t]he court clerk shall promptly transmit a certified copy of the order to the levying officer. Subject to Section 703.610, the levying officer shall, in compliance with the order, release the property or apply the property to the satisfaction of the money judgment.”

Pursuant to Code of Civil Procedure section 703.570, subdivision (b), “[n]ot less than 10 days prior to the hearing, the judgment creditor shall serve a notice of the hearing and a copy of the notice of opposition to the claim of exemption on the claimant and on the judgment debtor, if other than the claimant. Service shall be made personally or by mail.” Maimon filed a proof of service indicating that on December 14, 2023, Maimon served on Mizrahi, inter alia, the “Notice of Opposition to Claim of Exemption” and “Notice of Hearing on Claim of Exemption” by mail and electronic mail.

In his declaration in support of the instant motion, Maimon’s counsel states that “[o]n November 27, 2023, the Sheriff’s Department received a Claim of Exemption from Mizrahi. Attached as Exhibit 7 is a true and correct copy of the Claim of Exemption we received from the Sheriff’s Department and the attached cover letter.” (Ibrahim Decl., ¶ 13, Ex. 7.) The Court notes that Exhibit 7 to Maimon’s counsel’s declaration contains a document titled “Notice of Filing of Claim of Exemption” from the Sheriff’s Department of Los Angeles County, to the attention of Maimon’s counsel, “Shustak, Reynolds & Partners PC.” (Ibid.) The notice states, inter alia, that in Case No. 21STCV13296 (the instant case), “[a] Claim of Exemption has been filed in the above case. The property will be released to the extent it is claimed to be exempt unless you do all the following within 15 days: 1. File with the court a Notice of Opposition to Claim of Exemption and a Notice of Motion for an order determining the Claim of Exemption. 2. File with the Sheriff’s Office at the address below a copy of the Notice of Opposition to Claim of Exemption and a copy of the Notice of Motion for an order determining the Claim of Exemption.” (Ibid.) The notice states that “[t]his notice was mailed” on “11/30/23.” (Ibid.)

The Court notes that 15 days after November 30, 2023 is December 15, 2023.[1] On December 14, 2023, Maimon filed the Notice of Opposition to Claim of Exemption and the Notice of Hearing on Claim of Exemption. The Notice of Opposition of Claim of Exemption asserts that the item or items claimed as exempt are “not exempt under the statutes relied upon in the Claim of Exemption,” “not exempt because the judgment debtor’s equity is greater than the amount provided in the exemption,” and “not exempt because no statutes are relied upon; no property is claimed exempt; there is no apparent basis for any exemption; and misrepresentation of assets.” (December 14, 2023 Notice of Opposition to Claim of Exemption, Item 5.) The Notice of Opposition to Claim of Exemption also provides that the facts necessary to support Item 5 are: “See Judgment Creditor’s Notice of Motion for Determining Debtor’s Claim of Exemption, the supporting Memorandum of Points and Authorities, and the supporting Declaration of Mahdi M. Ibrahim, attached hereto.” (Ibid., Item 6.)[2]

On December 14, 2023, Maimon also filed the instant Motion for an Order Determining Debtor Eric Mizrahi’s Claim of Exemption and supporting documents.

The Claim of Exemption attached as Exhibit 7 to Maimon’s counsel’s declaration provides, inter alia, that “[t]he property I claim to be exempt is…Any and all deposits held in my name at my Bank of America Account.” (Ibrahim Decl., ¶ 13, Ex. 7.) The Claim of Exemption further provides that “[t]he property is claimed to be exempt under the following code and section…U.S.C Sec [704.010-704.230].” (Ibid.) In addition, the Claim of Exemption states that “[t]he facts which support this claim are…filing an appeal with the Court and see attached declaration…” (Ibid.)

Maimon asserts that the Claim of Exemption fails to meet the statutory requirements for a valid claim. Maimon cites to Code of Civil Procedure section 703.520, subdivision (b), which provides that “[t]he claim of exemption shall be executed under oath and shall include all of the following:

(1) The name of the claimant and the mailing address where service of a notice of opposition to the claim may be made upon the claimant.

(2) The name and last known address of the judgment debtor if the claimant is not the judgment debtor.

(3) A description of the property claimed to be exempt. If an exemption is claimed pursuant to Section 704.010 or 704.060, the claimant shall describe all other property of the same type, including exempt proceeds of the property of the same type, owned by the judgment debtor alone or in combination with others on the date of levy and identify the property, whether or not levied upon, to which the exemption is to be applied. If an exemption is claimed pursuant to subdivision (b) of Section 704.100, the claimant shall state the nature and amount of all other property of the same type owned by the judgment debtor or the spouse of the judgment debtor alone or in combination with others on the date of levy.

(5) A citation of the provision of this chapter or other statute upon which the claim is based.

Maimon asserts that the Claim of Exemption does not adequately describe “the property

claimed to be exempt.” (Code Civ. Proc., § 703.520, subd. (b)(3).) As set forth above, the Claim of Exemption provides that “[t]he property I claim to be exempt is…Any and all deposits held in my name at my Bank of America Account.” (Ibrahim Decl., ¶ 13, Ex. 7.) Maimon notes that the Claim of Exemption “lists no specific accounts, no specific dollar amount in the accounts, or the claimed exempt amount.” (Mot. at p. 5:11-12.) Mizrahi did not file any opposition to the instant motion, and thus does not dispute Maimon’s assertion that the Claim of Exemption is deficient under Code of Civil Procedure section 703.520. Maimon notes that pursuant to California Rules of Court, rule 8.54, subdivision (c), “[a] failure to oppose a motion may be deemed a consent to the granting of the motion.”

Maimon also asserts that the Claim of Exemption fails to provide “[a] citation of the provision of this chapter or other statute upon which the claim is based.” (Code Civ. Proc., § 703.520, subd. (b)(5).) As set forth above, Mizrahi cites to “U.S.C Sec [704.010-704.230]” in the Claim of Exemption. (Ibrahim Decl., ¶ 13, Ex. 7.) It appears Mizrahi mistakenly cited to the United States Code. As noted by Maimon, Code of Civil Procedure sections 704.010-704.230 concern “exempt property.” Maimon notes that “[r]ather than defining the basis for his Claim, Mizrahi’s Claim lists every statute related to exempt property.” (Mot. at p. 5:14-15.)

In addition, Maimon asserts that Mizrahi fails to provide a “statement of the facts necessary to support the claim.” (Code Civ. Proc., § 703.520, subd. (b)(6).) Maimon asserts that “[o]ther than Mizrahi’s declaration, which consists of only a few lines about how the levied accounts affect him, Mizrahi provides no facts supporting the basis for his Claim. His declaration also cites no specific exemptions that the declaration might apply to.” (Mot. at p. 5:22-24.) As discussed, Mizrahi did not file any opposition to the instant motion, and thus does not address this point.

(2) The name, age, and relationship of all persons dependent upon the judgment debtor or the spouse of the judgment debtor for support.

(3) All sources and the amounts of earnings and other income of the judgment debtor and the spouse and dependents of the judgment debtor.

(4) A list of the assets of the judgment debtor and the spouse and dependents of the judgment debtor and the value of such assets.

(5) All outstanding obligations of the judgment debtor and the spouse and dependents of the judgment debtor.”

Maimon asserts that “Mizrahi’s Claim misrepresents his assets and fails to provide a full and accurate representation of his finances in violation of CCP § 703.520.” (Mot. at p. 6:24-25.)

The Court notes that the “Financial Statement” attached to the Claim of Exemption states the name “N/A” next to “Spouse.” (Ibrahim Decl., ¶ 13, Ex. 7.) Thus, Mizrahi does not appear to list the “name of the spouse of the judgment debtor.” (Code Civ. Proc., § 703.530, subd. (b)(1).) The Financial Statement also states that “[m]y gross monthly pay is…$0.00.” (Ibrahim Decl., ¶ 13, Ex. 7.) Maimon asserts that “Mizrahi’s Claim of Exemption lacks a true accounting of his assets.” (Mot. at p. 6:9.) Maimon’s counsel asserts, inter alia, that “Mizrahi, who maintains a medical license and is a doctor, owns at least four properties in his name alone, including two multi-unit apartment buildings.” (Ibrahim Decl., ¶ 14, Exs. 8-11.) Maimon’s counsel further asserts that “[o]ne apartment building Mizrahi owns (Koreatown Property) is an 11-unit building with rents around $1,350 per month.” (Ibrahim Decl., ¶ 15, Ex. 12.)

The Financial Statement attached to the Claim of Exemption also contains an item for “[c]ars, other vehicles, and boat equity…” (Ibrahim Decl., ¶ 13, Ex. 7, Item 3(c).) This Item was not completed by Mizrahi. (Ibid.) Maimon’s counsel states in his supporting declaration that “I conducted a public record search on Westlaw for Mizrahi’s assets. Based on these public records searches, I determined Mizrahi owns a 45-foot sailboat. Upon information and belief, Mizrahi also owns multiple cars.” (Ibrahim Decl., ¶ 16, Ex. 13.) Maimon also notes that Mizrahi does not lists cars as an asset on the Financial Statement but lists “[t]ransportation & auto expenses” as $2,200.00. (Ibrahim Decl., ¶ 13, Ex. 7.) A discussed, Mizrahi did not file any opposition to the instant motion and thus does not dispute the foregoing.

Based on the foregoing, and in light of the lack of any opposition, the Court finds that Maimon has demonstrated good cause for the Court to grant the instant motion to deny Mizrahi’s Claim of Exemption.[3] However, as set forth above, Maimon does not appear to provide evidence demonstrating that he “file[d] with the levying officer a copy of the notice of opposition and a copy of the notice of motion.” (Code Civ. Proc., § 703.550, subd. (a).) As set forth above, “[w]ithin 15 days after service of the notice of claim of exemption, a judgment creditor who opposes the claim of exemption shall file with the court a notice of opposition to the claim of exemption and a notice of motion for an order determining the claim of exemption and shall file with the levying officer a copy of the notice of opposition and a copy of the notice of motion. Upon the filing of the copies of the notice of opposition and notice of motion, the levying officer shall promptly file the claim of exemption with the court. If copies of the notice of opposition and notice of motion are not filed with the levying officer within the time allowed, the levying officer shall immediately release the property to the extent it is claimed to be exempt.” (Code Civ. Proc., § 703.550, subd. (a).) It is not clear whether Maimon filed with the levying officer a copy of the notice of opposition and a copy of the notice of motion.

Based on the foregoing, the Court continues the hearing on the instant motion to ________________, 2024¿at 10:00 a.m. in Dept. 50. By ________________, 2024, Maimon may file and serve a declaration addressing whether Maimon “file[d] with the levying officer a copy of the notice of opposition and a copy of the notice of motion.” (Code Civ. Proc., § 703.550, subd. (a).)

[1]As set forth above, “[w]ithin 15 days after service of the notice of claim of exemption, a judgment creditor who opposes the claim of exemption shall file with the court a notice of opposition to the claim of exemption and a notice of motion for an order determining the claim of exemption and shall file with the levying officer a copy of the notice of opposition and a copy of the notice of motion.” (Code Civ. Proc., § 703.550, subd. (a).)

[2]Code of Civil Procedure section 703.560 provides that “[t]he notice of opposition to the claim of exemption shall be executed under oath and shall include both of the following: (a) An allegation either (1) that the property is not exempt under the provision of this chapter or other statute relied upon or (2) that the equity in the property claimed to be exempt is in excess of the amount provided in the applicable exemption. (b) A statement of the facts necessary to support the allegation.”

[3]Based on the foregoing, the Court need not address Maimon’s remaining arguments in the motion. (See Mot. at pp. 7:1-8:18.)

ERIC MIZRAHI, Plaintiff, vs. YEHUDA MAIMON, individually and as Trustee of the BRIGITTE MIZRAHI LIVING TRUST dated June 21, 2018; et al., Defendants.	Case No.:	21STCV13296
	Hearing Date:	January 11, 2024
	Hearing Time:	10:00 a.m.
	[TENTATIVE] ORDER RE: JUDGMENT CREDITOR YEHUDA MAIMON’S, INDIVIDUALLY, AND AS TRUSTEE, MOTION FOR AN ORDER DETERMINING DEBTOR ERIC MIZRAHI’S CLAIM OF EXEMPTION
AND RELATED CROSS-ACTION

Superior Court of California

County of Los Angeles

Department 50