This case was last updated from Los Angeles County Superior Courts on 02/20/2021 at 10:12:32 (UTC).

MERCHANT CAPITAL SOURCE, LLC., A CALIFORNIA LIMITED LIABILITY COMPANY VS BANK OF AMERICA, N.A.

Case Summary

On 01/14/2019 MERCHANT CAPITAL SOURCE, LLC , A CALIFORNIA LIMITED LIABILITY COMPANY filed an Other lawsuit against BANK OF AMERICA, N A. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JON R. TAKASUGI. The case status is Other.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0435

  • Filing Date:

    01/14/2019

  • Case Status:

    Other

  • Case Type:

    Other

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

JON R. TAKASUGI

 

Party Details

Plaintiff

MERCHANT CAPITAL SOURCE LLC. A CALIFORNIA LIMITED LIABILITY COMPANY

Defendant

BANK OF AMERICA N.A.

Attorney/Law Firm Details

Plaintiff Attorney

VELEN ANGELA A

Defendant Attorney

SMITH ROCHELLE

 

Court Documents

Request for Dismissal - Request for Dismissal

1/21/2021: Request for Dismissal - Request for Dismissal

Declaration (name extension) - Declaration OF SHANE HANNAH IN SUPPORT OF BANK OF AMERICA, N.A.S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION

10/13/2020: Declaration (name extension) - Declaration OF SHANE HANNAH IN SUPPORT OF BANK OF AMERICA, N.A.S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION

Certificate of Mailing for - Certificate of Mailing for (Hearing on Motion for Summary Judgment for Plaintiff on case ...) of 10/22/2020

10/22/2020: Certificate of Mailing for - Certificate of Mailing for (Hearing on Motion for Summary Judgment for Plaintiff on case ...) of 10/22/2020

Objection (name extension) - Objection Response TO PLAINTIFFS ADDITIONAL FACTS OPPOSING BANK OF AMERICA, N.A.S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

8/13/2020: Objection (name extension) - Objection Response TO PLAINTIFFS ADDITIONAL FACTS OPPOSING BANK OF AMERICA, N.A.S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Reply (name extension) - Reply TO PLAINTIFFS OPPOSITION TO BANK OF AMERICA, N.A.S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

8/13/2020: Reply (name extension) - Reply TO PLAINTIFFS OPPOSITION TO BANK OF AMERICA, N.A.S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Notice (name extension) - Notice of Entry of Order Consolidating Cases

8/19/2020: Notice (name extension) - Notice of Entry of Order Consolidating Cases

Declaration (name extension) - Declaration of Angela Velen

7/31/2020: Declaration (name extension) - Declaration of Angela Velen

Opposition (name extension) - Opposition To Defendants Motion For Summary Judgment

7/31/2020: Opposition (name extension) - Opposition To Defendants Motion For Summary Judgment

Proof of Service by Mail - Proof of Service by Mail

7/31/2020: Proof of Service by Mail - Proof of Service by Mail

Motion for Summary Judgment - Motion for Summary Judgment

3/27/2020: Motion for Summary Judgment - Motion for Summary Judgment

Separate Statement - Separate Statement

3/27/2020: Separate Statement - Separate Statement

Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

5/12/2020: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

Certificate of Mailing for - Certificate of Mailing for (Court Order Re: Non-Jury Trial) of 05/26/2020

5/26/2020: Certificate of Mailing for - Certificate of Mailing for (Court Order Re: Non-Jury Trial) of 05/26/2020

Minute Order - Minute Order (Court Order Re: Non-Jury Trial)

5/26/2020: Minute Order - Minute Order (Court Order Re: Non-Jury Trial)

Stipulation (name extension) - No Order - Stipulation - No Order STIPULATION AND PROPOSED ORDER CONSOLIDATING CASES

6/22/2020: Stipulation (name extension) - No Order - Stipulation - No Order STIPULATION AND PROPOSED ORDER CONSOLIDATING CASES

Answer - Answer by Bank of Ameica, N.A.'s Answer to pltf's Unverified Complaint

4/5/2019: Answer - Answer by Bank of Ameica, N.A.'s Answer to pltf's Unverified Complaint

First Amended Standing Order - First Amended Standing Order

1/14/2019: First Amended Standing Order - First Amended Standing Order

Civil Case Cover Sheet - Civil Case Cover Sheet

1/14/2019: Civil Case Cover Sheet - Civil Case Cover Sheet

27 More Documents Available

 

Docket Entries

  • 01/27/2021
  • DocketNon-Jury Trial scheduled for 03/10/2021 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 01/27/2021

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  • 01/27/2021
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 01/18/2022 at 10:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 01/27/2021

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  • 01/22/2021
  • DocketAddress for Angela A Velen (Attorney) null

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  • 01/21/2021
  • DocketUpdated -- Request for Dismissal Filed Not Entered: Name Extension: Filed Not Entered; As To Parties changed from Bank of America, N.A. (Defendant) to Bank of America, N.A. (Defendant)

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  • 01/21/2021
  • DocketOn the Complaint filed by MERCHANT CAPITAL SOURCE, LLC., A CALIFORNIA LIMITED LIABILITY COMPANY on 01/14/2019, entered Request for Dismissal with prejudice filed by Merchant Capital Source, LLC., A California Limited Liability Company as to the entire action

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  • 01/21/2021
  • DocketERROR with ROA message definition 129 with DismissalParty:2204253 resulted in empty message

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  • 01/15/2021
  • DocketAddress for Angela A Velen (Attorney) null

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  • 01/14/2021
  • DocketOn the Complaint filed by MERCHANT CAPITAL SOURCE, LLC., A CALIFORNIA LIMITED LIABILITY COMPANY on 01/14/2019, entered Request for Dismissal with prejudice filed by Merchant Capital Source, LLC., A California Limited Liability Company

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  • 10/22/2020
  • DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore; Filed by: Bank Of America, N.A. (Defendant)

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  • 10/22/2020
  • DocketMinute Order (Hearing on Motion for Summary Judgment for Plaintiff on case ...)

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43 More Docket Entries
  • 03/13/2019
  • DocketProof of Personal Service; Filed by: Merchant Capital Source, LLC., a California Limited Liability Company (Plaintiff); As to: Bank Of America, N.A. (Defendant); Service Date: 02/07/2019; Service Cost: 90.00; Service Cost Waived: No

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  • 03/06/2019
  • DocketCase reassigned to Stanley Mosk Courthouse in Department 94 - Hon. James E. Blancarte; Reason: Inventory Transfer

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  • 02/12/2019
  • DocketNon-Jury Trial scheduled for 07/13/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 02/12/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 01/18/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 02/12/2019
  • DocketCase assigned to Hon. Jon R. Takasugi in Department 94 Stanley Mosk Courthouse

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  • 01/14/2019
  • DocketComplaint; Filed by: MERCHANT CAPITAL SOURCE, LLC., A CALIFORNIA LIMITED LIABILITY COMPANY (Plaintiff); As to: BANK OF AMERICA, N.A. (Defendant)

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  • 01/14/2019
  • DocketCivil Case Cover Sheet; Filed by: MERCHANT CAPITAL SOURCE, LLC., A CALIFORNIA LIMITED LIABILITY COMPANY (Plaintiff); As to: BANK OF AMERICA, N.A. (Defendant)

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  • 01/14/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 01/14/2019
  • DocketFirst Amended Standing Order; Filed by: Clerk

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  • 01/14/2019
  • DocketComplaint; Filed by: Merchant Capital Source, LLC., a California Limited Liability Company (Plaintiff); As to: Bank Of America, N.A. (Defendant)

    Read MoreRead Less

Tentative Rulings

Case Number: 19STLC00435    Hearing Date: October 22, 2020    Dept: 25

HEARING DATE:    Thu., October 22, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME Merchant Capital Source, LLC v. Bank of America, N.A.

CASE NUMBER: 19STLC00435 COMPL. FILED: 01-14-19

NOTICE:   OK DISC. C/O: 02-08-21

DISC. MOT. C/O:    02-23-21

TRIAL DATE: 03-10-21

PROCEEDINGS    MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

MOVING PARTY:   Plaintiff Merchant Capital Source, LLC

RESP. PARTY: Defendant Bank of America, N.A.

 MOTION FOR SUMMARY JUDGMENT

(CCP §437c)

TENTATIVE RULING:

Plaintiff Merchant Capital Source, LLC’s Motion for Summary Judgment is DENIED.

SERVICE

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

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

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

OPPOSITION: Filed on December 5, 2019 [   ] Late [   ] None

REPLY: Filed on December 11, 2019   [   ] Late [   ] None

ANALYSIS:

  1. Background

On January 14, 2019, Plaintiff Merchant Capital Source, LLC (“Plaintiff”) filed an action, Case No. 19STCV00101, against Defendant Bank of America, N.A. (“Defendant”) for violation of Code of Civil Procedure sections 701.010, 701.020, and 701.030. Defendant filed its Answer on April 5, 2019. Plaintiff filed this separate but similar action against Defendant on that same day for violation of Code of Civil Procedure sections 701.010 and 701.030, Case No. 19STLC00435.

On October 3, 2019, Plaintiff filed the instant Motion for Summary Judgment or in the Alternative, Summary Adjudication (the “Motion”) for the Complaint filed in Case No. 19STCV00101. Defendant filed an Opposition on December 5, 2019 and Plaintiff filed a Reply on December 11, 2019.

On December 16, 2019, this action was reclassified from civil unlimited to civil limited jurisdiction. (12/16/19 Minute Order.)

Plaintiff filed Notices of Related Case under both cases on April 24, 2020 and May 20, 2020. On August 13, 2020, pursuant to the parties’ stipulation, the Court ordered Case No. 19STLC00435 and Case No. 19STCV00101 consolidated, with Case No.19STLC00435 as the lead case. (8/13/20 Order.)

Defendant filed a motion for summary judgment for the Complaint filed in Case No. 19STLC00435 on March 27, 2020, which was heard and denied by this Court on August 18, 2020. (8/18/20 Minute Order.)

Following the Court’s ruling, Defendant filed an Amended Opposition to the instant Motion on October 14, 2020. Plaintiff filed three Amended Replies on October 13, 2020 at 4:01 p.m., 5:06 p.m., and 6:46 p.m. The Court only considers Plaintiff last filed Amended reply.

  1. Defendant’s Request for Judicial Notice

Pursuant to Evidence Code section 452, subdivisions (c) and (h), Defendant requests judicial notice of (1) a copy of the judgment lien recorded by the County Recorder’s office in Dallas, Texas and (2) a copy of the Corporate Records & Business Registration for Herrera Tex Mex Foods, Inc. (Am. Oppo., RJN, Exhs. 1, 2.)

Evidence Code section 452, subdivision (c) permits judicial notice of official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. Subdivision (h) permits judicial notice of “facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resources of reasonably indisputable accuracy.”

The documents submitted are print outs from Westlaw, not copies of official documents themselves. (Am. Oppo., RJN, Exhs. 1, 2.) In addition, facts contemplated by subdivision (h) generally include “facts which are widely accepted as established by experts and specialists in the natural, physical, and social sciences which can be verified by reference to treatises, encyclopedias, almanacs and the like or by persons learned in the subject matter.” (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145.) The printouts Defendant submitted represent no such widely accepted matter. Thus, Defendant’s request for judicial notice is DENIED.

  1. Defendant’s Evidentiary Objection

Defendant objects to Plaintiff’s counsel Angela A. Velen’s declaration, paragraph 14, lines 17-23 and Exhibit 13. (Am. Oppo., Evid. Objections, No. 1.) Defendant’s objection is SUSTAINED.

  1. Legal Standard

A party seeking summary judgment has the burden of producing evidentiary facts sufficient to entitle him/her to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Vesely v. Sager (1971) 5 Cal.3d 153.) The moving party must make an affirmative showing that he/she is entitled to judgment irrespective of whether or not the opposing party files an opposition. (Villa v. McFerren (1995) 35 Cal.App.4th 733.)

When a Defendant or Cross-Defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) When a Plaintiff or Cross-Complainant seeks summary judgment, he/she must produce admissible evidence on each element of each cause of action on which judgment is sought. (Code Civ. Proc., § 437c, subd. (p)(1).) The moving party’s “affidavits must cite evidentiary facts, not legal conclusions or ‘ultimate’ facts” and be strictly construed. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519; Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)

The opposing party on a motion for summary judgment is under no evidentiary burden to produce rebuttal evidence until the moving party meets his or her initial movant’s burden. (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832.) Once the initial movant’s burden is met, then the burden shifts to the opposing party to show, with admissible evidence, that there is a triable issue requiring the weighing procedures of trial. (Code Civ. Proc., § 437c, subd. (p).) The opposing party may not simply rely on his/her allegations to show a triable issue but must present evidentiary facts that are substantial in nature and rise beyond mere speculation. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151.) As to any alternative request for summary adjudication of issues, such alternative relief must be clearly set forth in the Notice of Motion and the general burden-shifting rules apply but the issues upon which summary adjudication may be sought are limited by statute. (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

  1. Discussion

A. Procedural Deficiencies

 

Defendant argues that procedural defects in Plaintiff’s Motion warrant denial. (Am. Oppo., pp. 10:23-11:18.) First, Defendant notes that the notice of motion does not specify the causes of action for which Plaintiff seeks summary adjudication. California Rules of Court, rule 3.1350, subdivision (b), requires that when summary adjudication is sought as an alternative to a motion for summary judgment, “the specific cause of action, affirmative defense, claims for damages, or issues of duty [be] stated specifically in the notice of motion and must be repeated, verbatim, in the separate statement.” Defendant’s notice of motion does not comply with Rule 3.1350, subdivision (b). It states that Plaintiff seeks summary judgment or, in the alternative, summary adjudication pursuant to Code of Civil Procedure section 437c, but does not identify the specific causes of action for which summary adjudication is sought. (See Mot., pp. 1-2.)

Defendant also notes that Plaintiff’s separate statement does not comply with the format requirements of Rule 3.1350, subdivisions (f) and (h). Rule 3.1350 requires that a separate statement contain two columns and that each material fact claimed by the moving party to be undisputed be set out on the left side with a reference to the party’s evidence immediately below each undisputed fact. Plaintiff’s separate statement does not comply with Rule 3.1350, subdivisions (f) and (h). Although

Plaintiff’s separate statement contains two columns and lists its claimed undisputed facts on the left side, the evidentiary reference is on the right-hand column rather than below each undisputed fact.

However, the Court’s power to deny a motion for summary judgment or summary adjudication based on failure to comply with the requirements of Rule 3.1350 is discretionary, not mandatory. (Truong v. Glasser (2009) 181 Cal.App.4th 102, 118.) Here, although the specific causes of action were not listed in the Motion, the three causes of action were clearly set out in Plaintiff’s separate statement. In addition, although Plaintiff’s separate statement does not comply with Rule 3.1350, it is fairly short, only containing a total of 13 undisputed material facts, several of which are repeated for each cause of action.

In the interest of resolving the matter on the merits, the Court declines to deny the Motion on procedural grounds.

B. First Cause of Action – CCP §§ 701.010,

To levy a judgment debtor’s deposit account, the levying officer must personally serve a copy of the writ of execution and notice of levy on the financial institution with which the deposit account is maintained. (Code Civ. Proc., § 700.140, subd. (a).) If personal service is required on a financial institution in connection with a deposit account, “service shall be made at the office or branch…at which a deposit account is levied upon is carried and shall be made upon the officer, manager, or other person in charge of the office or branch at the time of service. For purposes of this section, the office or branch at which a deposit account is levied upon is carried shall mean the branchoffice, or other location where the financial institution maintains the account.” (Code Civ. Proc., § 684.110, subd. (c).) (Italics added.) In addition, Section 684.115 subdivision (a)(1) allows a financial institution with more than nine branches or offices in the state of California to designate a central location for service of legal process in this state.

Code of Civil Procedure section 701.010 provides:

(a) Except as otherwise provided by statute, when a levy is made by service of a copy of the writ of execution and a notice of levy on a third person, the third person at the time of levy or promptly thereafter shall comply with this section.

(b) Unless the third person has good cause for failure or refusal to do so:

(1) The third person shall deliver to the levying officer any of the property levied upon that is in the possession or under the control of the third person at the time of levy unless the third person claims the right to possession of the property.

(2) To the extent that the third person does not deny an obligation levied upon, or claim a priority over the judgment creditor's lien, the third person shall pay to the levying officer both of the following:

(A) The amount of the obligation levied upon that is due and payable to the judgment debtor at the time of levy.

(B) Amounts that become due and payable to the judgment debtor on the obligation levied upon during the period of the execution lien.

(Code Civ. Proc., § 701.010, subds. (a), (b).) 

The parties present evidence of the following: On or about July 31, 2015, the Court entered a judgment in favor of Plaintiff and against Judgment Debtors Herrera Tex Mex Foods, Inc. dba Herrera’s (“Herrera’s”) and Cynthia Bonifaz (“Bonifaz”) in the matter known as Merchant Capital Source, LLC v. Herrera Tex Mex Foods, Inc., Orange County Superior Court Case No. 30-2015-00784802-CU-CO-CJC. (Mot., Velen ¶ 2, Exh. 1.) It is undisputed that on or about October 22, 2018, Plaintiff served Defendant with a notice of levy, copy of a writ of execution, and memorandums of garnishee for Merchant Capital Source, LLC v. Herrera Tex Mex Foods, Inc., Orange County Superior Court Case No. 30-2015-00784802-CU-CO-CJC. (UMF No. 1.) Plaintiff personally served the notices of levy, writs of execution, and memorandums of garnishee on Defendant’s authorized agent at 818 W. 7th Street, Suite 930, Los Angeles, CA 90017. (Mot., Velen Decl., ¶ 5, Exh. 2.) The notices of levy sought to levy Judgment Debtors’ accounts ending in 9215 and 9260, as well as “all checking, savings, safe deposit box[es], [and] money market accounts.” (DUMF No. 4; Am. Oppo., Hannah Decl., ¶ 3, Exh. A.) It is undisputed that at the time the levy was served, Judgment Debtor Bonifaz’s accounts with Defendant had a balance of $282.55. (UMF No. 3.)

Plaintiff argues that Defendant was required to honor the levy and deliver the funds available in Judgment Debtor Bonifaz’s account because the notice of levy was served at a central location and thus, it is irrelevant where the deposit account was opened or is domiciled. (Mot., p. 8:5-19.) Plaintiff also argues that national banks, such as Defendant, have control over their individual branches and that each branch is not a separate entity. (Am. Reply, p. 2:18-3:4.) However, the language of Section 684.110, subdivision (c) specifically provides for service of the levy and writ of execution at the “branch, office, or other location” where the accounts are maintained. The statute does not state that all deposit accounts are maintained at every branch or office of a national bank. (See Schwartz & Ahart, California Practice Guide: Enforcing Judgments and Debts, (2020) ¶ 6:545.1 [“[I]f [an] office or branch is in another state, a California levying officer or process server cannot levy the writ [and] [o]ther enforcement procedures must be utilized”] (Italics in original.)) In addition, even if the notice of levy was served at Defendant’s designated California central location, it is only effective as to deposit accounts in California. (2 MB Practice Guide: CA Debt Collection 16.51 (2020) [“If the writ of execution is received at the designated central location, it will be effective as to and will establish a lien on all deposit accounts held by the financial institution in California”]. (Italics added.))

Because Plaintiff has not demonstrated that the notices of levy were served at the “branch, office, or other location” where the accounts sought to be levied were maintained, Plaintiff has not carried its initial burden that no triable issue of material fact exists as to the first cause of action.

C. Second Cause of Action – CCP § 701.030

At the time a third person is served with process, the levying officer must also request a garnishee’s memorandum, which shall be mailed to delivered to the levying officer within 10 days. (Code Civ. Proc., § 701.030, subd. (a).) Section 701.030, subdivision (b), dictates the information that must be included in the garnishee’s memorandum, including a “description of any property of the judgment debtor sought to be levied upon that is not delivered to the levying officer and the reason for not delivering the property.” (Code Civ. Proc., § 701.030, subd. (b)(1).) 

Section 701.030, subdivision (e) provides:  

“Notwithstanding subdivision (a), when the levy is made upon a deposit account or upon property in a safe-deposit box, the financial institution need not give a garnishee's memorandum to the levying officer if the financial institution fully complies with the levy and, if a garnishee's memorandum is required, the garnishee's memorandum needs to provide information with respect only to property that is carried on the records available at the office or branch where the levy is made provided that if a levy has been served at a central location designated by a financial institution in accordance with Section 684.115, the garnishee's memorandum shall apply to all offices and branches of the financial institution except to the extent acceptance of the levy at those central locations is limited pursuant to paragraph (3) of subdivision (a) of Section 684.115.”

Here, the contents of the memorandum of garnishee are undisputed. (Mot., Velen Decl., ¶ 7, Exh. 3; Am. Oppo., Hannah Decl., ¶ 4, Exh. B; UMF No. 4.) Specifically, paragraph 1 of the memorandum states: “If you will not deliver to the levying officer any property levied upon, describe the property and the reason for not delivering it.” (Id.) Defendant did not describe the property sought in paragraph 1 of the garnishee’s memorandum and simply responded “NO ACCOUNTS FOUND WITHIN CALIFORNIA (CA).” (Id.) The responses to paragraphs 2 through 6 are simply a “ / ”. (Id; UMF No. 4.) Plaintiff does not argue that the garnishee’s memorandum was untimely; rather, it argues that Defendant’s responses on the memorandum of garnishee were “anemic” and did not comply with Section 701.030, subdivision (b), because Defendant did not state a description of the property sought to be levied upon, namely the $282.55 in Judgment Debtors’ accounts. (Mot., p. 9:16-25.) It also argues that Defendant failed to provide any substantive response to paragraphs 2-6. (Id.)

As noted above, Plaintiff has not established that the accounts were maintained in California. Notably, both parties submitted copies of the personal signature cards for the accounts Plaintiff sought to levy which demonstrate that accounts 9215 and 9260 were opened in March 2016 outside of California. (Mot., Velen Decl., ¶ 12, Exh. 6; Am. Oppo., Hannah Decl., ¶¶ 6-7, Exhs. C, D.) Thus, a question exists as to whether information on the out of state accounts sought by Plaintiff was available to Defendant at the California location where the notices of levy were served.

Therefore, Plaintiff has not established that no triable issue of material fact exists as to the second cause of action.   

D. Third Cause of Action – CCP § 701.020

 

Code of Civil Procedure section 701.020 provides that, if a third person is required to make payments to a levying officer but fails or refuses to do so without good cause, then the third person is liable to the judgment creditor is liable for the lesser of (1) the value of the judgment debtor’s interest in the property or the amount of payments required to be made or (2) the amount required to satisfy the judgment.

Plaintiff argues that Defendant was required to deliver the funds of $282.55 held in Judgment Debtor Bonifaz’s accounts and because it failed to do so, it is liable to Plaintiff in that amount pursuant to Code of Civil Procedure section 701.020. (Mot., p. 10:4-26.) As noted above, however, Plaintiff has not carried its burden to establish that Defendant was required to deliver any funds pursuant to the notices of levy served.

Thus, Plaintiff has not carried its initial burden to show that no triable issue of material fact exists as to the third cause of action.

  1. Conclusion & Order

For the foregoing reasons, Plaintiff Merchant Capital Source, LLC’s Motion for Summary Judgment is DENIED.

Moving party is ordered to give notice.

Case Number: 19STLC00435    Hearing Date: October 21, 2020    Dept: 25

HEARING DATE: Thu., October 22, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Merchant Capital Source, LLC v. Bank of America, N.A.

CASE NUMBER: 19STLC00435 COMPL. FILED: 01-14-19

NOTICE: OK DISC. C/O: 02-08-21

DISC. MOT. C/O: 02-23-21

TRIAL DATE: 03-10-21

PROCEEDINGS: MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

MOVING PARTY: Plaintiff Merchant Capital Source, LLC

RESP. PARTY: Defendant Bank of America, N.A.

MOTION FOR SUMMARY JUDGMENT

(CCP §437c)

TENTATIVE RULING:

Plaintiff Merchant Capital Source, LLC’s Motion for Summary Judgment is DENIED.

SERVICE:

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

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

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

OPPOSITION: Filed on December 5, 2019 [ ] Late [ ] None

REPLY: Filed on December 11, 2019 [ ] Late [ ] None

ANALYSIS:

  1. Background

On January 14, 2019, Plaintiff Merchant Capital Source, LLC (“Plaintiff”) filed an action, Case No. 19STCV00101, against Defendant Bank of America, N.A. (“Defendant”) for violation of Code of Civil Procedure sections 701.010, 701.020, and 701.030. Defendant filed its Answer on April 5, 2019. Plaintiff filed this separate but similar action against Defendant on that same day for violation of Code of Civil Procedure sections 701.010 and 701.030, Case No. 19STLC00435.

On October 3, 2019, Plaintiff filed the instant Motion for Summary Judgment or in the Alternative, Summary Adjudication (the “Motion”) for the Complaint filed in Case No. 19STCV00101. Defendant filed an Opposition on December 5, 2019 and Plaintiff filed a Reply on December 11, 2019.

On December 16, 2019, this action was reclassified from civil unlimited to civil limited jurisdiction. (12/16/19 Minute Order.)

Plaintiff filed Notices of Related Case under both cases on April 24, 2020 and May 20, 2020. On August 13, 2020, pursuant to the parties’ stipulation, the Court ordered Case No. 19STLC00435 and Case No. 19STCV00101 consolidated, with Case No.19STLC00435 as the lead case. (8/13/20 Order.)

Defendant filed a motion for summary judgment for the Complaint filed in Case No. 19STLC00435 on March 27, 2020, which was heard and denied by this Court on August 18, 2020. (8/18/20 Minute Order.)

Following the Court’s ruling, Defendant filed an Amended Opposition to the instant Motion on October 14, 2020. Plaintiff filed three Amended Replies on October 13, 2020 at 4:01 p.m., 5:06 p.m., and 6:46 p.m. The Court only considers Plaintiff last filed Amended reply.

  1. Defendant’s Request for Judicial Notice

Pursuant to Evidence Code section 452, subdivisions (c) and (h), Defendant requests judicial notice of (1) a copy of the judgment lien recorded by the County Recorder’s office in Dallas, Texas and (2) a copy of the Corporate Records & Business Registration for Herrera Tex Mex Foods, Inc. (Am. Oppo., RJN, Exhs. 1, 2.)

Evidence Code section 452, subdivision (c) permits judicial notice of official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. Subdivision (h) permits judicial notice of “facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resources of reasonably indisputable accuracy.”

The documents submitted are print outs from Westlaw, not copies of official documents themselves. (Am. Oppo., RJN, Exhs. 1, 2.) In addition, facts contemplated by subdivision (h) generally include “facts which are widely accepted as established by experts and specialists in the natural, physical, and social sciences which can be verified by reference to treatises, encyclopedias, almanacs and the like or by persons learned in the subject matter.” (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145.) The printouts Defendant submitted represent no such widely accepted matter. Thus, Defendant’s request for judicial notice is DENIED.

  1. Defendant’s Evidentiary Objection

Defendant objects to Plaintiff’s counsel Angela A. Velen’s declaration, paragraph 14, lines 17-23 and Exhibit 13. (Am. Oppo., Evid. Objections, No. 1.) Defendant’s objection is SUSTAINED.

  1. Legal Standard

A party seeking summary judgment has the burden of producing evidentiary facts sufficient to entitle him/her to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Vesely v. Sager (1971) 5 Cal.3d 153.) The moving party must make an affirmative showing that he/she is entitled to judgment irrespective of whether or not the opposing party files an opposition. (Villa v. McFerren (1995) 35 Cal.App.4th 733.)

When a Defendant or Cross-Defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) When a Plaintiff or Cross-Complainant seeks summary judgment, he/she must produce admissible evidence on each element of each cause of action on which judgment is sought. (Code Civ. Proc., § 437c, subd. (p)(1).) The moving party’s “affidavits must cite evidentiary facts, not legal conclusions or ‘ultimate’ facts” and be strictly construed. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519; Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)

The opposing party on a motion for summary judgment is under no evidentiary burden to produce rebuttal evidence until the moving party meets his or her initial movant’s burden. (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832.) Once the initial movant’s burden is met, then the burden shifts to the opposing party to show, with admissible evidence, that there is a triable issue requiring the weighing procedures of trial. (Code Civ. Proc., § 437c, subd. (p).) The opposing party may not simply rely on his/her allegations to show a triable issue but must present evidentiary facts that are substantial in nature and rise beyond mere speculation. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151.) As to any alternative request for summary adjudication of issues, such alternative relief must be clearly set forth in the Notice of Motion and the general burden-shifting rules apply but the issues upon which summary adjudication may be sought are limited by statute. (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

  1. Discussion

A. Procedural Deficiencies

Defendant argues that procedural defects in Plaintiff’s Motion warrant denial. (Am. Oppo., pp. 10:23-11:18.) First, Defendant notes that the notice of motion does not specify the causes of action for which Plaintiff seeks summary adjudication. California Rules of Court, rule 3.1350, subdivision (b), requires that when summary adjudication is sought as an alternative to a motion for summary judgment, “the specific cause of action, affirmative defense, claims for damages, or issues of duty [be] stated specifically in the notice of motion and must be repeated, verbatim, in the separate statement.” Defendant’s notice of motion does not comply with Rule 3.1350, subdivision (b). It states that Plaintiff seeks summary judgment or, in the alternative, summary adjudication pursuant to Code of Civil Procedure section 437c, but does not identify the specific causes of action for which summary adjudication is sought. (See Mot., pp. 1-2.)

Defendant also notes that Plaintiff’s separate statement does not comply with the format requirements of Rule 3.1350, subdivisions (f) and (h). Rule 3.1350 requires that a separate statement contain two columns and that each material fact claimed by the moving party to be undisputed be set out on the left side with a reference to the party’s evidence immediately below each undisputed fact. Plaintiff’s separate statement does not comply with Rule 3.1350, subdivisions (f) and (h). Although

Plaintiff’s separate statement contains two columns and lists its claimed undisputed facts on the left side, the evidentiary reference is on the right-hand column rather than below each undisputed fact.

However, the Court’s power to deny a motion for summary judgment or summary adjudication based on failure to comply with the requirements of Rule 3.1350 is discretionary, not mandatory. (Truong v. Glasser (2009) 181 Cal.App.4th 102, 118.) Here, although the specific causes of action were not listed in the Motion, the three causes of action were clearly set out in Plaintiff’s separate statement. In addition, although Plaintiff’s separate statement does not comply with Rule 3.1350, it is fairly short, only containing a total of 13 undisputed material facts, several of which are repeated for each cause of action.

In the interest of resolving the matter on the merits, the Court declines to deny the Motion on procedural grounds.

B. First Cause of Action – CCP §§ 701.010,

To levy a judgment debtor’s deposit account, the levying officer must personally serve a copy of the writ of execution and notice of levy on the financial institution with which the deposit account is maintained. (Code Civ. Proc., § 700.140, subd. (a).) If personal service is required on a financial institution in connection with a deposit account, “service shall be made at the office or branch…at which a deposit account is levied upon is carried and shall be made upon the officer, manager, or other person in charge of the office or branch at the time of service. For purposes of this section, the office or branch at which a deposit account is levied upon is carried shall mean the branch, office, or other location where the financial institution maintains the account.” (Code Civ. Proc., § 684.110, subd. (c).) (Italics added.) In addition, Section 684.115 subdivision (a)(1) allows a financial institution with more than nine branches or offices in the state of California to designate a central location for service of legal process in this state.

Code of Civil Procedure section 701.010 provides:

(a) Except as otherwise provided by statute, when a levy is made by service of a copy of the writ of execution and a notice of levy on a third person, the third person at the time of levy or promptly thereafter shall comply with this section.

(b) Unless the third person has good cause for failure or refusal to do so:

(1) The third person shall deliver to the levying officer any of the property levied upon that is in the possession or under the control of the third person at the time of levy unless the third person claims the right to possession of the property.

(2) To the extent that the third person does not deny an obligation levied upon, or claim a priority over the judgment creditor's lien, the third person shall pay to the levying officer both of the following:

(A) The amount of the obligation levied upon that is due and payable to the judgment debtor at the time of levy.

(B) Amounts that become due and payable to the judgment debtor on the obligation levied upon during the period of the execution lien.

(Code Civ. Proc., § 701.010, subds. (a), (b).)

The parties present evidence of the following: On or about July 31, 2015, the Court entered a judgment in favor of Plaintiff and against Judgment Debtors Herrera Tex Mex Foods, Inc. dba Herrera’s (“Herrera’s”) and Cynthia Bonifaz (“Bonifaz”) in the matter known as Merchant Capital Source, LLC v. Herrera Tex Mex Foods, Inc., Orange County Superior Court Case No. 30-2015-00784802-CU-CO-CJC. (Mot., Velen ¶ 2, Exh. 1.) It is undisputed that on or about October 22, 2018, Plaintiff served Defendant with a notice of levy, copy of a writ of execution, and memorandums of garnishee for Merchant Capital Source, LLC v. Herrera Tex Mex Foods, Inc., Orange County Superior Court Case No. 30-2015-00784802-CU-CO-CJC. (UMF No. 1.) Plaintiff personally served the notices of levy, writs of execution, and memorandums of garnishee on Defendant’s authorized agent at 818 W. 7th Street, Suite 930, Los Angeles, CA 90017. (Mot., Velen Decl., ¶ 5, Exh. 2.) The notices of levy sought to levy Judgment Debtors’ accounts ending in 9215 and 9260, as well as “all checking, savings, safe deposit box[es], [and] money market accounts.” (DUMF No. 4; Am. Oppo., Hannah Decl., ¶ 3, Exh. A.) It is undisputed that at the time the levy was served, Judgment Debtor Bonifaz’s accounts with Defendant had a balance of $282.55. (UMF No. 3.)

Plaintiff argues that Defendant was required to honor the levy and deliver the funds available in Judgment Debtor Bonifaz’s account because the notice of levy was served at a central location and thus, it is irrelevant where the deposit account was opened or is domiciled. (Mot., p. 8:5-19.) Plaintiff also argues that national banks, such as Defendant, have control over their individual branches and that each branch is not a separate entity. (Am. Reply, p. 2:18-3:4.) However, the language of Section 684.110, subdivision (c) specifically provides for service of the levy and writ of execution at the “branch, office, or other location” where the accounts are maintained. The statute does not state that all deposit accounts are maintained at every branch or office of a national bank. (See Schwartz & Ahart, California Practice Guide: Enforcing Judgments and Debts, (2020) ¶ 6:545.1 [“[I]f [an] office or branch is in another state, a California levying officer or process server cannot levy the writ [and] [o]ther enforcement procedures must be utilized”] (Italics in original.)) In addition, even if the notice of levy was served at Defendant’s designated California central location, it is only effective as to deposit accounts in California. (2 MB Practice Guide: CA Debt Collection 16.51 (2020) [“If the writ of execution is received at the designated central location, it will be effective as to and will establish a lien on all deposit accounts held by the financial institution in California”]. (Italics added.))

Because Plaintiff has not demonstrated that the notices of levy were served at the “branch, office, or other location” where the accounts sought to be levied were maintained, Plaintiff has not carried its initial burden that no triable issue of material fact exists as to the first cause of action.

C. Second Cause of Action – CCP § 701.030

At the time a third person is served with process, the levying officer must also request a garnishee’s memorandum, which shall be mailed to delivered to the levying officer within 10 days. (Code Civ. Proc., § 701.030, subd. (a).) Section 701.030, subdivision (b), dictates the information that must be included in the garnishee’s memorandum, including a “description of any property of the judgment debtor sought to be levied upon that is not delivered to the levying officer and the reason for not delivering the property.” (Code Civ. Proc., § 701.030, subd. (b)(1).)

Section 701.030, subdivision (e) provides:

“Notwithstanding subdivision (a), when the levy is made upon a deposit account or upon property in a safe-deposit box, the financial institution need not give a garnishee's memorandum to the levying officer if the financial institution fully complies with the levy and, if a garnishee's memorandum is required, the garnishee's memorandum needs to provide information with respect only to property that is carried on the records available at the office or branch where the levy is made provided that if a levy has been served at a central location designated by a financial institution in accordance with Section 684.115, the garnishee's memorandum shall apply to all offices and branches of the financial institution except to the extent acceptance of the levy at those central locations is limited pursuant to paragraph (3) of subdivision (a) of Section 684.115.”

Here, the contents of the memorandum of garnishee are undisputed. (Mot., Velen Decl., ¶ 7, Exh. 3; Am. Oppo., Hannah Decl., ¶ 4, Exh. B; UMF No. 4.) Specifically, paragraph 1 of the memorandum states: “If you will not deliver to the levying officer any property levied upon, describe the property and the reason for not delivering it.” (Id.) Defendant did not describe the property sought in paragraph 1 of the garnishee’s memorandum and simply responded “NO ACCOUNTS FOUND WITHIN CALIFORNIA (CA).” (Id.) The responses to paragraphs 2 through 6 are simply a “ / ”. (Id; UMF No. 4.) Plaintiff does not argue that the garnishee’s memorandum was untimely; rather, it argues that Defendant’s responses on the memorandum of garnishee were “anemic” and did not comply with Section 701.030, subdivision (b), because Defendant did not state a description of the property sought to be levied upon, namely the $282.55 in Judgment Debtors’ accounts. (Mot., p. 9:16-25.) It also argues that Defendant failed to provide any substantive response to paragraphs 2-6. (Id.)

As noted above, Plaintiff has not established that the accounts were maintained in California. Notably, both parties submitted copies of the personal signature cards for the accounts Plaintiff sought to levy which demonstrate that accounts 9215 and 9260 were opened in March 2016 outside of California. (Mot., Velen Decl., ¶ 12, Exh. 6; Am. Oppo., Hannah Decl., ¶¶ 6-7, Exhs. C, D.) Thus, a question exists as to whether information on the out of state accounts sought by Plaintiff was available to Defendant at the California location where the notices of levy were served.

Therefore, Plaintiff has not established that no triable issue of material fact exists as to the second cause of action.

D. Third Cause of Action – CCP § 701.020

Code of Civil Procedure section 701.020 provides that, if a third person is required to make payments to a levying officer but fails or refuses to do so without good cause, then the third person is liable to the judgment creditor is liable for the lesser of (1) the value of the judgment debtor’s interest in the property or the amount of payments required to be made or (2) the amount required to satisfy the judgment.

Plaintiff argues that Defendant was required to deliver the funds of $282.55 held in Judgment Debtor Bonifaz’s accounts and because it failed to do so, it is liable to Plaintiff in that amount pursuant to Code of Civil Procedure section 701.020. (Mot., p. 10:4-26.) As noted above, however, Plaintiff has not carried its burden to establish that Defendant was required to deliver any funds pursuant to the notices of levy served.

Thus, Plaintiff has not carried its initial burden to show that no triable issue of material fact exists as to the third cause of action.

  1. Conclusion & Order

For the foregoing reasons, Plaintiff Merchant Capital Source, LLC’s Motion for Summary Judgment is DENIED.

Moving party is ordered to give notice.

Case Number: 19STLC00435    Hearing Date: August 18, 2020    Dept: 25

HEARING DATE:    Tue., August 18, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME Merchant Capital Source, LLC v. Bank of America, N.A.

CASE NUMBER: 19STLC00435 DISC. C/O: 02-08-21

NOTICE:   OK DISC. MOT. C/O:    02-23-21

TRIAL DATE: 03-10-21

PROCEEDINGS    MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

MOVING PARTY:   Defendant Bank of America, N.A.

RESP. PARTY: Plaintiff Merchant Capital Source, LLC

 MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

(CCP § 437c)

TENTATIVE RULING:

Defendant Bank of America, N.A.’s Motion to Summary Judgment or, in the Alternative, Summary Adjudication, is DENIED.

SERVICE

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

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

[X] 75/80 Day Lapse (CCP 12c and 1005 (b))  OK

OPPOSITION: Filed on July 31, 2020 [   ] Late [    ] None

REPLY: Filed on August 13, 2020 [   ] Late [   ] None

ANALYSIS:

  1. Background

On January 14, 2019, Plaintiff Merchant Capital Source, LLC (“Plaintiff”) filed an action for violation of Code of Civil Procedure sections 701.010 and 701.030 against Defendant Bank of America, N.A. (“Defendant”). On April 5, 2019, Defendant filed an Answer.

On March 27, 2020, Defendant filed the instant Motion for Summary Judgment, or in the Alternative, Summary Adjudication (the “Motion”). On July 31, 2020, Plaintiff filed an opposition and on August 13, 2020, Defendant filed a reply.

  1. Legal Standard

A party seeking summary judgment has the burden of producing evidentiary facts sufficient to entitle him/her to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Vesely v. Sager (1971) 5 Cal.3d 153.) The moving party must make an affirmative showing that he/she is entitled to judgment irrespective of whether or not the opposing party files an opposition. (Villa v. McFerren (1995) 35 Cal.App.4th 733.)

When a Defendant or Cross-Defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) When a Plaintiff or Cross-Complainant seeks summary judgment, he/she must produce admissible evidence on each element of each cause of action on which judgment is sought. (Code Civ. Proc., § 437c, subd. (p)(1).) The moving party’s “affidavits must cite evidentiary facts, not legal conclusions or ‘ultimate’ facts” and be strictly construed. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519; Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)

The opposing party on a motion for summary judgment is under no evidentiary burden to produce rebuttal evidence until the moving party meets his or her initial movant’s burden. (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832.) Once the initial movant’s burden is met, then the burden shifts to the opposing party to show, with admissible evidence, that there is a triable issue requiring the weighing procedures of trial. (Code Civ. Proc., § 437c, subd. (p).) The opposing party may not simply rely on his/her allegations to show a triable issue but must present evidentiary facts that are substantial in nature and rise beyond mere speculation. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151.) As to any alternative request for summary adjudication of issues, such alternative relief must be clearly set forth in the Notice of Motion and the general burden shifting rules apply but the issues upon which summary adjudication may be sought are limited by statute. (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

  1. Objections

A. Plaintiff’s Objections

 

Plaintiff’s objections to paragraphs 5-10 and Exhibits C-F of Shane Hannah’s Declaration are OVERRULED.

 

B. Defendant’s Objections

 

Defendant’s objection to paragraph 9 and Exhibit 12 of Angela Velen’s declaration is SUSTAINED. Defendant’s objections to Plaintiff’s additional facts opposing the Motion, numbers 11-13, are SUSTAINED.

  1. Discussion

A. First Cause of Action – Violation of Code of Civil Procedure section 701.010  

To levy a judgment debtor’s deposit account, the levying officer must personally serve a copy of the writ of execution and notice of levy on the financial institution with which the deposit account is maintained. (Code Civ. Proc., § 700.140, subd. (a).) If personal service is required on a financial institution in connection with a deposit account, “service shall be made at the office or branch…at which a deposit account is levied upon is carried and shall be made upon the officer, manager, or other person in charge of the office or branch at the time of service. For purposes of this section, the office or branch at which a deposit account is levied upon is carried shall mean the branch, office, or other location where the financial institution maintains the account.” (Code Civ. Proc., § 684.110, subd. (c).)  

Code of Civil Procedure section 701.010 provides:

(a) Except as otherwise provided by statute, when a levy is made by service of a copy of the writ of execution and a notice of levy on a third person, the third person at the time of levy or promptly thereafter shall comply with this section.

(b) Unless the third person has good cause for failure or refusal to do so:

(1) The third person shall deliver to the levying officer any of the property levied upon that is in the possession or under the control of the third person at the time of levy unless the third person claims the right to possession of the property.

(2) To the extent that the third person does not deny an obligation levied upon, or claim a priority over the judgment creditor's lien, the third person shall pay to the levying officer both of the following:

(A) The amount of the obligation levied upon that is due and payable to the judgment debtor at the time of levy.

(B) Amounts that become due and payable to the judgment debtor on the obligation levied upon during the period of the execution lien.

(Code Civ. Proc., § 701.010, subds. (a), (b).) (Emphasis added.)

Defendant argues it is entitled to summary judgment because it was not required to turn over Debtors’ out of state assets, namely Debtors’ out of state bank accounts. (Mot., p. 1:7-15.)

The following facts are undisputed. In June 2018, Plaintiff obtained a judgment against Jerk N Go, Inc. (“Jerk N Go”) and Marvis Wilson (“Wilson”) (collectively, “Debtors”) in the Superior Court of California, County of Orange, Case Number 30-2017-00963606. (UMF No. 1.) On September 5, 2018, Plaintiff served a notice of levy and writ of execution on Defendant’s agent for service of process in California at 818 W. 7th St., Suite 930, Los Angeles, CA to obtain funds from Debtors’ accounts. (UMF No. 2.) The Notice of Levy sought to levy “all accounts, including but not limited to savings account number – 1152, checking account number – 2065, and checking account number – 9519. (See Id; Mot., Hannah Decl., Exh. A.) That same day, Defendant returned a memorandum of garnishee to Plaintiff simply noting that Debtors had no accounts in California. (UMF No. 3.)

Defendant presents evidence that savings account x1152 was opened in Chicago, IL and that checking account x2065 and checking account x9519 were opened in Matteson, IL. (Mot., Hannah Decl., ¶¶ 5-9, Exhs. C-E.) Debtor Wilson also maintained a fourth joint account x9634 in Federal Way, Washington. (Id., Hannah Decl., ¶ 9, Exh. F.) Defendant argues this establishes the accounts were opened and maintained out of state. (Mot., p. 3:24-28.)

In opposition, Plaintiff argues Defendant is a national bank that enables customers to access their deposits at any bank across the nation, regardless of where customers opened their account or are domiciled. (Oppo., p. 3:13-15.) However, the language of Section 684.110, subdivision (c) specifically provides for service of the levy and writ of execution at the “branch, office, or other location” where the accounts are maintained. The statute does not state that all deposit accounts are maintained at every branch of a national bank as Plaintiff argues. (See Schwartz & Ahart, California Practice Guide: Enforcing Judgments and Debts, (2020) ¶ 6:545.1 [“[I]f [an] office or branch is in another state, a California levying officer or process server cannot levy the writ [and] [o]ther enforcement procedures must be utilized”] (Italics in original); 2 MB Practice Guide: CA Debt Collection 16.51 (2020) [“If the writ of execution is received at the designated central location, it will be effective as to and will establish a lien on all deposit accounts held by the financial institution in California”].)

Although Defendant’s evidence demonstrates the accounts were opened outside the state of California, it does not provide any evidence that the accounts were maintained outside of California at the time the levy and writ of execution were served. Thus, Defendant has not met its burden to establish that no triable issue of material fact exists as to Defendant’s compliance with Section 701.010.

B. Second Cause of Action – Violation of Code of Civil Procedure section 701.030

 

Defendant argues it is entitled to summary adjudication as to the second cause of action because it was not required to provide any information regarding Debtors’ deposit accounts located outside of California. (Mot., p. 5:14-28.) Thus, Defendant argues the garnishee’s memorandum it returned was accurate and complete. (Id.)

 

At the time a third person is served with process, the levying officer must also request a garnishee’s memorandum, which shall be mailed to delivered to the levying officer within 10 days. (Code Civ. Proc., § 701.030, subd. (a).) Section 701.030, subdivision (b), dictates the information that must be included in the garnishee’s memorandum, including a “description of any property of the judgment debtor sought to be levied upon that is not delivered to the levying officer and the reason for not delivering the property.” (Code Civ. Proc., § 701.030, subd. (b)(1).)  Section 701.030, subdivision (e) requires that, when a levy is made upon a deposit account, the garnishee’s memorandum contain “information with respect only to property that is carried on the records available at the office or branch where the levy is made provided that the levy has been served at a central location designated by a financial institution in accordance with Section 684.115, the garnishee’s memorandum shall apply to all offices and branches of the financial institution except to the extent acceptance of the levy at those central locations is limited pursuant to paragraph (3) of subdivision (a) of Section 684.115.” Section 684.115 subdivision (a)(3) deals with locations within the state as to which service at a financial institution’s central location will not apply.

Here, the contents of the memorandum of garnishee Defendant returned to Plaintiff are undisputed. (See UMF No. 2; Mot., Hannah Decl., ¶ 4, Exh. B; Oppo., Velen Decl,. Exh. 3.) Specifically, paragraph 1 of the memorandum states: “If you will not deliver to the levying officer any property levied upon, describe the property and the reason for not delivering it.” (Id.) (Italics added.) Defendant did not describe the property sought in paragraph 1 of the garnishee’s memorandum and simply responded, “No account in California.” (Id.) The responses to paragraphs 2 through 6, are simply “-”. (Id.)

As noted above, Defendant has not established the accounts Plaintiff sought to levy were maintained outside of California at the time the levy and writ of execution were served. Thus, a question exists as to whether the information Plaintiff sought was available to Defendant, but not provided. Therefore, Defendant has not established that no triable issue of material fact exists as to its compliance with Section 701.030.

  1. Conclusion & Order

For the foregoing reasons, Defendant Bank of America, N.A.’s Motion to Summary Judgment or, in the Alternative, Summary Adjudication, is DENIED.

Moving party is ordered to give notice.

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