Judge: Wesley L. Hsu, Case: 21PSCV00220, Date: 2023-04-19 Tentative Ruling

Case Number: 21PSCV00220    Hearing Date: April 19, 2023    Dept: L

Defendant Maclovio Berumen’s Claim of Exemption is DENIED.

Background   

Plaintiff Certified Federal Credit Union formerly known as Vons Employees Federal Credit Union (“Plaintiff”) alleges as follows: On or about December 30, 2020, Maclovio Berumen aka Maclovio B. Gallegos aka Maclovio Berumen Gallegos (“Defendant”) entered into a loan agreement with Plaintiff, wherein Defendant pledged his 2020 Honda Accord Sport 2.0T as security. Defendant failed to repay the loan under the agreed terms.

On March 15, 2021, Plaintiff filed a complaint, asserting causes of action against Defendant and Does 1-50 for:

1.      Claim and Delivery

2.      Balance Due on a Loan Agreement

3.      Money Had and Received

4.      Money Lent

5.      Account Stated

6.      Breach of Written Loan Agreement

7.      Money Had and Received

8.      Money Lent

9.      Account Stated

On May 24, 2021, Defendant’s default was entered. On August 16, 2021, default judgment was filed. On September 14, 2021, a writ of execution was issued.

On January 4, 2022, the court denied Defendant’s claim of exemption and ordered that $462.84 be garnished from Defendant’s pay each pay period.

Discussion

Plaintiff/Judgment Creditor Certified Federal Credit Union formerly known as Vons Employees Federal Credit Union (“Judgment Creditor”) opposes the Claim of Exemption submitted by Defendant/Judgment Debtor Maclovio Berumen (“Judgment Debtor”).

TIMELINESS: A claim of exemption may be made by the judgment debtor any time during the withholding period. (Code Civ. Proc., § 706.105, subd. (a).) An exemption may be claimed only once, however, unless there has been a “material change in circumstances” since the time of the last prior hearing on the earnings withholding order. (Id.)

A judgment creditor wishing to oppose a claim of exemption must file a notice of opposition with the levying officer within 10 days after the notice of claim of exemption was mailed. (Code Civ. Proc., § 706.105, subd. (d).) “(This 10–day period is not extended where the claim of exemption was served by mail; see CCP § 684.310 and Comment to CCP § 706.105.).” Ahart, CAL. PRAC. GUIDE: ENFORCING JUDGMENTS AND DEBTS (The Rutter Group 2022) ¶ 6:1192.

If a notice of opposition is timely filed, the judgment creditor is entitled to a hearing on the claim of exemption. (Code Civ. Proc., § 706.105, subd. (e).) If the judgment creditor desires a hearing, the judgment creditor must file a notice of motion for an order determining the claim of exemption with the court within 10 days after the date the levying officer mailed the notice of claim of exemption. (Id.) “(This 10–day period is not extended where the claim of exemption was served by mail; see CCP § 684.310 and Comment to CCP § 706.105.).” Ahart, supra, at ¶ 6:1195. If the notice of opposition and notice of motion are timely filed, the court hearing on the claim of exemption must be held no more than 30 days after the notice of motion is filed (unless continued by the court for good cause). (Code Civ. Proc., § 706.105, subd. (e).)

The judgment creditor must give written notice of the hearing to the levying officer at least 16 court days prior to the hearing. (Code Civ. Proc., § 706.105, subd. (e); Code Civ. Proc., § 1005, subd. (b).) The judgment creditor must also serve a copy of the notice of opposition and notice of hearing at least 16 court days before the hearing on the judgment debtor at the address set forth in the claim of exemption. (Code Civ. Proc., § 706.105, subd. (e).)

The Notice of Filing Claim of Exemption states it was mailed on January 17, 2023. The Notice of Hearing on Claim of Exemption and the Notice of Opposition to Claim of Exemption were mail-served on Judgment Debtor and the levying officer (i.e., the Los Angeles County Sheriff’s Department) on January 23, 2023 and filed with the court that day and stamped received by the levying officer on January 24, 2023.

The Hearing on Claim of Exemption was originally scheduled for February 22, 2023; on that date, the court noted that although the Notice of Hearing on Claim of Exemption and the Notice of Opposition to Claim of Exemption were timely filed, they were not timely served. The court elected to continue the hearing to April 19, 2023 and ordered Judgment Creditor to give notice of the continued hearing date forthwith. On February 23, 2023, Judgment Creditor filed (and mail-served) a “Notice of Change of Hearing Date for Opposition to Claim of Exemption,” advising therein of the rescheduled April 19, 2023 hearing date. The court determines that appropriate notice has now been provided.

MERITS:

The exemption claimant has the burden of proof. (Code Civ. Proc., § 703.580, subd. (b).) The court notes that Judgment Creditor previously claimed an exemption in connection with the garnishment of his wages, which the court denied on January 4, 2022. An exemption may be claimed only once, unless there has been a “material change in circumstances” since the time of the last prior hearing on the earnings withholding order. (Code Civ. Proc., § 706.105, subd. (a).) Judgment Debtor has not articulated any such circumstances. Judgment Debtor’s claim of exemption is thus denied.