Judge: Theodore R. Howard, Case: 20-1136400, Date: 2022-12-08 Tentative Ruling

Plaintiff/Creditor Eric Brahms (“Plaintiff”) Motion for Reconsideration of the Court’s 10/17/22 ruling on BoostAddict.com’s third party claim is GRANTED.

The Court finds that Plaintiff has satisfied the requirements of C.C.P. § 1008.  The motion is timely as it was filed within 10 days after the Court’s 10/17/22 ruling.  The motion is also based on new or different facts and circumstances, namely, LegalZoom’s response to Plaintiff’s subpoena for records which was not considered by the Court in its prior ruling.  Plaintiff offered a satisfactory explanation for why the evidence was not presented at the September 22, 2022 hearing.  (Declarations of Stuart A. Katz, Joel Garcia and James Weaver.)  Thus, the Court grants the Motion for Reconsideration and will reconsider the merits of BoostAddict.com’s third party claim with the new evidence.

Here, in support of BoostAddict.com’s third party claim of exemption, two declarations of defendant/judgment debtor Joseph Wilk (“Wilk”) were submitted.  (See ROA 257 and ROA 231.)  In both declarations, Wilk attested that he uploaded the Assignment of Domain Names to LegalZoom on September 28, 2018.  (ROA 257 at ¶ 11; ROA 231 at ¶ 14.)  The Assignment of Domain Names allegedly showed that on September 20, 2018, Wilk assigned to BoostAddict.com all right, title and interest in and to 42 domain names attached as Exhibit A to the Assignment.  (See Ex. D to Supplemental Wilk Declaration [ROA 257].)

The new evidence submitted by Plaintiff consists of a response from LegalZoom to a subpoena issued on August 26, 2022, for all documents uploaded by BoostAddict.com or Joseph Wilk between September 1, 2018 and March 14, 2022.  (Exs. A-B to Motion.)  The response, which consists of an affidavit of LegalZoom’s custodian of records, James Weaver, dated September 16, 2022 indicates that no responsive documents were found.  (Ex. B to Motion.)

In his opposition to this Motion, Wilk states again that he uploaded the Assignment of Domain Names to LegalZoom in September 2018 and that he has uploaded “many other documents” to LegalZoom during the time period in question, including documents listed in Exhibit A to his declaration.  (ROA 340 at ¶ 2-3; Ex. A thereto.)  In response to Wilk’s declaration, Plaintiff submitted an additional declaration of LegalZoom’s custodian of records, James Weaver.  (ROA 346.)  Mr. Weaver attests that the documents identified in Exhibit A to Wilk’s declaration are all documents that LegalZoom created and saved to BoostAddict.com’s account folder and none are documents that were uploaded to LegalZoom by Wilk or any other user other than LegalZoom itself.  (Weaver Decl. [ROA 346], ¶ 5-6.)

Plaintiff also submitted evidence showing that the Assignment of Domain Names was uploaded to LegalZoom on March 22, 2022.  (Weaver Decl. [ROA 346], ¶¶ 15-17 and Exhibits 10-11 thereto.)

The Court finds the above evidence significantly affects Wilk’s credibility.  An uninterested third party, LegalZoom, has declared that there were no documents uploaded to its website in September 2018 by BoostAddict.com or Wilk and that the Assignment of Domain Names was uploaded on March 22, 2022, contrary to Wilk’s statements made repeatedly in his declarations.  Importantly, March 22, 2022 is eight days after the March 14, 2022 levy of the domain names.  Although, as Plaintiff notes, receipt of the Assignment by LegalZoom does not determine the Assignment’s validity, whether it was uploaded to LegalZoom in September 2018 as Wilk claimed on multiple occasions, goes directly to his credibility.  In light of the evidence showing that the Assignment of Domain Names was not uploaded in September 2018 as Wilk repeatedly claimed, the Court finds that Wilk lacks credibility and, thus, the Court finds that his assertion that he assigned the domain names at issue to BoostAddict.com on September 20, 2018, is not credible.

Additionally, the LegalZoom “document upload tab” that BoostAddict.com submitted with its claim of exemption (Ex. D to Motion) contains no indication of what document was allegedly uploaded on September 28, 2018.  Further, as the Court previously found, the “My Profile” screenshot from GoDaddy and the PayPal statements (Exs. F, G, I, J to Supplemental Wilk Declaration) do not demonstrate that BoostAddict.com owns any of the subject domain names.

Accordingly, BoostAddict.com’s claim of exemption is DENIED in its entirety.

Plaintiff’s undertaking (ROA 232) is ordered exonerated.  (CCP § 720.160.)

Plaintiff is to prepare a proposed order in accordance with this ruling.

Plaintiff to give notice.