BMC WEST, LLC VS ROBERT TROY NIPAR, ET AL.

Tentative Rulings

Case Number: 20STLC04423    Hearing Date: February 18, 2021    Dept: 25

Case Number: LAM15K02851    Hearing Date: February 18, 2021    Dept: 25

HEARING DATE: Thu., February 18, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Pawnee Leasing Corp. v. Stunt Vehicles, Inc., et al.

CASE NUMBER: LAM15K02851 COMP. FILED: 03-05-15

PROCEEDINGS: (1 & 2) MOTION FOR ASSIGNMENT OF RIGHTS AND TURNOVER ORDER ON WRIT OF EXECUTION (NORMM EPPERSON & STUNT VEHICLES, INC.)

MOVING PARTY: Judgment Creditor Pawnee Leasing Corporation

RESP. PARTY: None

MOTION FOR ASSIGNMENT ORDER AND FOR TURNOVER ORDER

(CCP §§ 699.040; 708.510, 708.520)

TENTATIVE RULING:

Judgment Creditor Pawnee Leasing Corporation’s Motions for Assignment of Rights and for Turnover Order on Writ of Execution for Norman Epperson and Stunt Vehicles, Inc. are DENIED.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK (both)

[X] Correct Address (CCP §§ 1013, 1013a) OK (both)

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK (both)

OPPOSITION: None filed as of February 11, 2021 [ ] Late [X] None

REPLY: None filed as of February 11, 2021 [ ] Late [X] None

ANALYSIS:

1. Background

On January 8, 2016, a default judgment of $12,182.01 was entered against Judgment Debtors Stunt Vehicles, Inc. (“Stunt”) and Norman Epperson (“Epperson”) and in favor of Judgment Creditor Pawnee Leasing Corporation (“Judgment Creditor”). (Mot., Ferns Decl., ¶ 3, Exh. 1.)

Judgment Creditor filed the instant Motions for (1) Assignment of Rights and (2) for Turnover Order on Writ of Execution (the “Motions”), one for each Judgment Debtor. To date, no opposition has been filed.

1. Legal Standard & Discussion

A. Assignment of Rights

As to Judgment Debtor Stunt, Judgment Creditor seeks an order assigning it the rights to “(1) commissions, residuals, royalties, profit participation payments, or other monies owed to [Defendant Stunt]; (2) any monies owed to [Defendant Stunt] from SAG-AFTRA or SAG-AFTRA & Industry Sound Recordings Distribution Fund; and (3) accounts receivables…” (Stunt Motion, pp. 5:22-6:3.6.) As to Judgment Debtor Epperson, Judgment Creditor seeks an order assigning it the rights to “(1) commissions, residuals, royalties, profit participation payments or other monies owed to [Defendant Epperson]; (2) any monies owed to [Defendant Epperson] aka Normm Epperson from SAG-AFTRA & Industry Sound Recordings Distribution Fund; (3) accounts receivables; … (4) Stock in STUNT VEHICLES 44, a California Corporation; (5) [and t]he corporation entitled STUNT VEHICLES 44, a California corporation. (Epperson Motion, pp. 5:23-6:8.)

Code of Civil Procedure, section 708.510, subdivision (a) states, in relevant part:

(a) Except as otherwise provided by law, upon application of the judgment creditor on noticed motion, the court may order the judgment debtor to assign to the judgment creditor or to receiver appointed pursuant to Article 7 (commencing with Section 708.610) all or part of a right to payment due or to become due, whether or not the right is conditioned on future developments, including but not limited to the following types of payments:

(1) Wages due from the federal government that are not subject to withholding under an earnings withholding order.

(2) Rents.

(3) Commissions.

(4) Royalties.

(5) Payments due from a patent or copyright.

(6) Insurance policy loan value.

(Code Civ. Proc., § 708.510, subd. (a).) (Italics added.) Code of Civil Procedure section 708.510, subdivision (c), further provides:

[I]n determining whether to order an assignment or the amount of an assignment pursuant to subdivision (a), the court may take into consideration all relevant factors, including the following:

(1) The reasonable requirements of a judgment debtor who is a natural person and of persons supported in whole or in part by the judgment debtor.

(2) Payments the judgment debtor is required to make or that are deducted in satisfaction of other judgments and wage assignments, including earnings assignment orders for support.

(3) The amount remaining due on the money judgment.

(4) The amount being or to be received in satisfaction of the right to payment that may be assigned.

(Code Civ. Proc., § 708.510, subd. (c).) Construing all the applicable statutes together, it seems clear that the “assignment order” contemplated by Code of Civil Procedure, section 708.510, et seq. must include a court order that assigns a right to payment outright (not simply an order directing the judgment debtor to do so).

First, the Court notes that the evidence Judgment Creditor presents in support of its Motion for an assignment order refers to a “Normm Epperson” not “Norman Epperson.” (Epperson Mot., 8/12/20 Ferns Decl., ¶¶ 6, 7, Exhs. 3, 4.) Specifically, Judgment Creditor’s counsel states (1) that Stunt Vehicles 44 was incorporated by Normm Epperson and that (2) the Facebook page for Normm Epperson shows he is a stunt car driver and performer and an apparent member of SAG-AFTRA. (Id.) However, the Judgment was entered only as to “Norman Epperson.” (Id. at ¶ 3, Exh. 1.) No a.k.a was noted in the Judgment and Judgment Creditor has not filed a motion to amend the judgment to include an a.k.a. Also, Judgment Creditor’s evidence shows that Judgment Debtor Stunt is suspended on the Secretary of State website (id. at ¶ 4, Exh. 2), and in any case, no evidence demonstrates that Debtor Stunt is entitled to any payments from SAG-AFTRA. Furthermore, Judgment Creditor did not identify any additional persons or entities from which Judgment Debtors expect to collect commissions, residuals, royalties, profit participation payments, or other monies owed. No evidence or further details are provided regarding these alleged payments.

For these reasons, the Motions for assignment orders are DENIED.

B. Turnover Order

Judgment Creditor also seeks a turnover order pursuant to Code of Civil Procedure section 699.040. (Motions, pp. 6.) Section 699.040 provides:

“(a) If a writ of execution is issued, the judgment creditor may apply to the court ex parte, or on noticed motion if the court so directs or a court rule so requires, for an order directing the judgment debtor to transfer to the levying officer either or both of the following:

(1) Possession of the property sought to be levied upon if the property is sought to be levied upon by taking it into custody.

(2) Possession of documentary evidence of title to property of or a debt owed to the judgment debtor that is sought to be levied upon. An order pursuant to this paragraph may be served when the property or debt is levied upon or thereafter.” (Code Civ. Proc., § 699.040, subd. (a).)

Here, a Writ of Execution was issued on August 6, 2020. A writ of execution is only enforceable for 180 days. (Code Civ. Proc., 699.530, subd. (b).) Accordingly, Judgment Creditor’s Writ was only enforceable up to February 2, 2021. As the Writ has expired and is no longer enforceable, Judgment Creditor’s request for a turnover order based on the August 6 Writ is DENIED.

1. Conclusion & Order

For the foregoing reasons, Judgment Creditor Pawnee Leasing Corporation’s Motions for Assignment of Rights and for Turnover Order on Writ of Execution for Norman Epperson and Stunt Vehicles, Inc. are DENIED.

Moving party is ordered to give notice.