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This case was last updated from Los Angeles County Superior Courts on 03/28/2020 at 08:36:03 (UTC).

PAUL W HERBERT VS DONALD K DAVIES ET AL

Case Summary

On 03/29/2007 PAUL W HERBERT filed a Contract - Other Contract lawsuit against DONALD K DAVIES. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are HALEY J. FROMHOLZ, KEVIN C. BRAZILE and MATTHEW ST. GEORGE. The case status is Disposed - Dismissed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8713

  • Filing Date:

    03/29/2007

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

HALEY J. FROMHOLZ

KEVIN C. BRAZILE

MATTHEW ST. GEORGE

 

Party Details

Plaintiff

HERBERT PAUL W.

Defendants

DAVIES DEREK AN INDIVIDUAL(DOE 1)

DAVIES DONALD K.

DAVIES PAMELA MONROE

DHP INVESTMENTS INC.

DOES 1 THROUGH 40

FPB HOLDINGS INC.

FRIEDMAN IRA

NATIONWIDE REAL ESTATE SOLUTIONS INC

RAMIREZ MANUEL RALPH

RESIDENTIAL VENTURES INC.

STONEGATE VENTURES INC.

T2 HOLDINGS INC.

TOWER ONE PROPERTIES INC.

DAVIES DEREK AN INDIVIDUALDOE 1

Cross Defendant

TBC INVESTMENTS INC.

Others

SEROTA ARTHUR

KESSLER JOAN B.

Not Classified By Court

ALEXANDER LEON

Attorney/Law Firm Details

Plaintiff Attorneys

ABELSON/HERRON LLP

ADELSTEIN BRUCE

BERGEN ANN PENNERS ESQ.

CASTLE & LAX LAW OFFICES OF

Defendant Attorneys

NOVAK MARK S. LAW OFFICES OF

CASTLE & ASSOCIATES APLC

CASTLE NOMI L ESQ.

 

Court Documents

DECLARATION OF JEROME J. BLUM RE DISCHARGE OF PAMELA M. DAVIES AND PARTIAL DISCHARGE OF DONALD K. DAVIES, ETC

6/11/2018: DECLARATION OF JEROME J. BLUM RE DISCHARGE OF PAMELA M. DAVIES AND PARTIAL DISCHARGE OF DONALD K. DAVIES, ETC

Writ of Execution - WRIT OF EXECUTION (LOS ANGELES)

12/6/2019: Writ of Execution - WRIT OF EXECUTION (LOS ANGELES)

NOTICE OF DEPOSIT OF REPORTER?S TRANSCRIPT FEES

11/23/2011: NOTICE OF DEPOSIT OF REPORTER?S TRANSCRIPT FEES

NOTICE TO PARTIES RE FEE FOR CLERK?S TRANSCRIPT ON APPEAL

12/22/2011: NOTICE TO PARTIES RE FEE FOR CLERK?S TRANSCRIPT ON APPEAL

 

Docket Entries

  • 12/06/2019
  • DocketWrit of Execution ((Los Angeles)); Filed by Paul W. Herbert (Plaintiff)

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  • 12/04/2019
  • DocketNotice of Change of Address or Other Contact Information; Filed by Herzlich & Blum, LLP (Attorney)

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  • 11/20/2019
  • DocketProof of Service (Renewal of Judgment); Filed by Paul W. Herbert (Plaintiff)

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  • 11/07/2019
  • DocketNotice (Notice of Renewal of Judgment); Filed by Paul W. Herbert (Plaintiff)

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  • 11/06/2019
  • DocketNotice of Change of Address or Other Contact Information; Filed by Herzlich & Blum, LLP (Attorney)

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  • 11/06/2019
  • DocketApplication for and Renewal of Judgment; Filed by Paul W. Herbert (Plaintiff)

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  • 11/06/2019
  • DocketMemorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest; Filed by Paul W. Herbert (Plaintiff)

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  • 06/26/2018
  • DocketWrit issued; Filed by Clerk

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  • 06/11/2018
  • DocketDeclaration; Filed by Creditor

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  • 06/11/2018
  • DocketDECLARATION OF JEROME J. BLUM RE DISCHARGE OF PAMELA M. DAVIES AND PARTIAL DISCHARGE OF DONALD K. DAVIES, ETC

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598 More Docket Entries
  • 04/30/2007
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 04/30/2007
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 04/13/2007
  • DocketPROOFS OF SERVICE OF SUMMONS AND COMPLAINT ON DEFENDANT: 1. MANUEL RALPH RAMIREZ

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  • 04/13/2007
  • DocketProof of Service (not Summons and Complaint); Filed by Paul W. Herbert (Plaintiff)

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  • 04/12/2007
  • DocketPROOFS OF SERVICE OF SUMMONS AND COMPLAINT ON DEFENDANTS: 1. IRA FRIEDMAN, ETC

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  • 04/12/2007
  • DocketProof of Service (not Summons and Complaint); Filed by Paul W. Herbert (Plaintiff)

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  • 03/29/2007
  • DocketCOMPLAINT FOR: 1. BREACH OF ORAL AGREEMENT; ETC.

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  • 03/29/2007
  • DocketComplaint; Filed by null

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  • 03/29/2007
  • DocketCOMPLAINT FOR: 1. BREACH OF ORAL AGREEMENT; ETC.

    Read MoreRead Less
  • 03/29/2007
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC368713    Hearing Date: May 4, 2021    Dept: 20

Tentative Ruling

Judge Kevin C. Brazile

Department 1


Hearing Date: Tuesday, May 4, 2021

Case Name: Paul W. Herbert v. Donald K. Davies, et al.

Case No.: BC368713

Motion: Determine Claim of Exemption by Donald K. Davies

Moving Party: Creditor Paul W. Herbert

Responding Party: N/A (unopposed)

Notice: OK


Ruling: The Motion to Determine Claim of Exemption is CONTINUED to June 22, 2021 at 8:30 a.m. in this Department.

Davies shall file a supplemental brief and supplemental evidence regarding earnings and necessary expenses supporting his claim of exemption at least ten (10) days before the hearing. Any Response thereto shall be filed at least five (5) days before the hearing. The Supplemental Briefs shall not exceed twelve pages.

Herbert to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear remotely by LA Court Connect rather than in person.


 

BACKGROUND

 

On March 29, 2007, Plaintiff Paul W. Herbert filed a Complaint against Defendants Donald K. Davies (“Davies”), Pamela Monroe Davies, Ralph Ramirez, T2 Holdings, Inc., Stonegate Ventures, Inc., Residential Ventures, Inc., DHP Investments, Inc., Tower One Properties, Inc., Ira Friedman, and Does 1-40, stating causes of action for breach of oral agreement, breach of the implied covenant of good faith and fair dealing, breach of fiduciary duty, fraud, conversion, fraudulent transfer, conspiracy to defraud, misappropriation of trade secrets, unjust enrichment, money had and received, unfair competition, accounting, constructive trust, declaratory relief, and appointment of a receiver.

On August 25, 2009, the parties stipulated to arbitration.

On February 10, 2010, the arbitrator issued an award finding in favor of Herbert against Davies, Pamela Davies, T2 Holdings, Stonegate Ventures, Residential Ventures, DHP, Tower One Properties, and FPB Holding. The award provided for judgment in Herbert’s favor against the foregoing Defendants for $1,627,657.00 plus 10% annual interest.

On June 29, 2010, the Court confirmed the arbitration award and entered judgment on the terms set out above.

On October 15, 2015, the U.S. Bankruptcy Court for the Central District of California, presiding over the Davies' Chapter 7 bankruptcy case, issued a Judgment Declaring Indebtedness Partially Nondischargeable as to Donald Kevin Davies and Dischargeable as to Pamela Monroe Davies. The bankruptcy judgment provided that “$497,058 of Donald Kevin Davies’ indebtedness to Paul W. Herbert is not discharged and (ii) Pamela Monroe Davies’ indebtedness to Paul W. Herbert is discharged.” It further provided that “[i]nterest on this $497,058 will accrue at the rate of .27% per annum (which is $3.67/day) commencing on October 16, 2015 (with such interest to be compounded and reset annually).”

On November 6, 2019, Herbert filed an Application For and Renewal of Judgment, renewing the judgment rendered on June 29, 2010 against Defendants (including the judgment against Davies as limited by the bankruptcy judgment).

On December 8, 2020, the Court issued a Writ of Execution directing the San Francisco County Sherriff to enforce the judgment.

On February 22, 2021, Davies filed a Claim of Exemption with the San Francisco County Sherriff, claiming his wages were exempt from levy by an earnings withholding order.

On March 4, 2021, Herbert filed a Motion for Order Determining and Denying Claim of Exemption re: Wage Garnishment, seeking an order denying Davies’ Claim of Exemption. Davies did not file a response.

On March 30, 2021, the Court issued a tentative denying the Motion for Order Determining Claim of Exemption on the grounds that Herbert did not establish compliance with statutory requirements to provide notice of hearing to a levying officer. At the hearing, the Court heard oral argument from Herbert and Davies. Davies provided financial documents to the Court and the Court continued the Motion for Order Determining Claim of Exemption to May 4, 2021.

On April 27, 2021, Herbert filed a Reply in support of his Motion.

On April 29, 2021, Davies filed a series of exhibits entitled “Documents Produced in Response to ‘Application for Earnings Withholding Order (Wage Garnishment).’”

 

DISCUSSION

Applicable Law

CCP sec. 706.050 establishes “the maximum amount of disposable earnings of an individual judgment debtor for any workweek that is subject to levy under an earnings withholding order.” A further “hardship exemption” from wage garnishment may be obtained under CCP sec. 706.051(b), which “exempt[s] from levy” by wage garnishment “the portion of the judgment debtor's earnings that the judgment debtor proves is necessary for the support of the judgment debtor or the judgment debtor's family supported in whole or in part by the judgment debtor.” However, that exemption is unavailable if the relevant debt “was incurred pursuant to an order or award for the payment of attorney’s fees under [Family Code] Section 2030, 3121, or 3557” or “was incurred for personal services rendered by an employee or former employee of the judgment debtor.” (CCP sec. 706.051(c)(1)-(2).) The exemption also does not apply where the debtor seeks exemption from “a withholding order for support under [CCP] Section 706.030” or a “state tax order” governed by CCP sec. 706.070 et seq. (CCP sec. 706.051(c)(3)-(4).)

Application to Facts

Here, Davies' Claim of Exemption states that he needs “[a]ll earnings” to support himself or his family and that he is paid irregularly, “whenever there is work.” Davies indicates he is “willing for [$200.00] to be withheld from [his] earnings each pay period during the withholding period.” In his supporting Financial Statement, Davies indicates he has a “CRT order to pay 3000 monthly” to his ex-wife and states his gross monthly pay and monthly take-home pay are $3,000.00 (no payroll deductions were identified). Davies claims the “monthly expenses for [him], [his] spouse, and [his] other dependents” total $9,379.00, consisting of $2,000.00 for “[r]ent or house payment and maintenance,” $600.00 for food and household supplies, $295.00 for utilities and telephone services, $50.00 for clothing, $200.00 for medical and dental payments, $809.00 for “auto” insurance, $3,000.00 for spousal support,[1] $590 for auto expenses, $1,685 in debt installment payments,[2] $50.00 for laundry/cleaning, and $100 for entertainment.

Further Evidence Supporting Exemption

The Court indicated in its prior tentative that Davies’ Claim of Exemption was unsupported by evidence of the income and debts claimed, pointing out that Davies bears the burden of “proving” that exempted earnings are “necessary for the support of the judgment debtor” or family supported by the debtor. (CCP sec. 706.051(b).) Davies has now submitted some evidence in support of his Claim of Exemption.

First, Davies provides an email he sent to Herbert's counsel dated April 28, 2021. The email reads: “I have attached my 1099 earning documents for year 2020 and some additional documents regarding spousal support for Pamela Davies, that I thought I had previously emailed these 1099s to you. [T]here are no pay stubs from WV assets [LLC] as I have not received any paychecks from WV Assets [LLC] this year due to covid 19. [A]nd all my previous earnings mentioned on any statement are all estimates as the business that I was working in fluctuates monthly. [A]s a result of my loss of income I also could not make my full spousal support payments of $2500 to Pamela Davies during these challenging times. [S]o Pamela & I have agreed that I would make a rent payment to her landlord in the amount of $650 per month in lieu of any spousal support at this time, as we have been able to obtain rent covid subsidies to cover most of the balance of her rent.” (4/29/21 Documents, p. 1.)

Next, Davies provided a copy of Form 1099G and a copy of Form SSA-1099 for tax year 2020. The former indicated Davies received unemployment compensation of $30,450 with no federal income tax withholdings. (Documents, p. 3-4.) The latter form indicated net benefits paid in 2020 of $27,259.20. (Documents, p. 5.)

Next, Davies provided two letters dated December 14, 2020 and March 9, 2021 from the Los Angeles County Development Authority (LACDA) regarding Davies' applications for rental relief assistance. (Documents, p. 6-7.) The later letter indicates LACDA "released a rent relief assistance payment to ARCHSTONE MASTER PROPERTY, in the amount of $7500," to settle Davies' outstanding rent for April, May, July and August 2020. (Documents, p. 7.) The relationship between Davies and Archstone Master Property is not clear to the Court.

Finally, Davies provided a series of screenshots from the “online portal” for Pamela's apartment unit reflecting monthly rent charges of $2,441.00 and monthly payments of $650.00 from October 1, 2020 through April 6, 2021. (Documents, p. 8-14.)

Analysis of Evidence

As noted, Davies bears the burden to establish entitlement to a hardship exemption. CCP sec. 706.051(b) “exempt[s] from levy . . . the portion of the judgment debtor's earnings that the judgment debtor proves is necessary for the support of the judgment debtor or the judgment debtor's family supported in whole or in part by the judgment debtor.” Davies claims he needs “[a]ll earnings” to support himself and pay spousal support—he indicates his gross monthly pay and monthly take-home pay are $3,000.00 but claims that “monthly expenses for [him], [his] spouse, and [his] other dependents” total $9,379.00. Davies bears the burden of establishing the extent of his “necessary” monthly expenses as well as his claimed monthly pay.

Davies has not carried his burden to provide evidence establishing gross monthly pay of $3,000.00. The Court previously indicated Davies needed to provide further evidence regarding his income, including potentially pay stubs. Davies claims in his April 28 Email that he was unable to provide pay stubs from WV Assets, LLC because he did not receive any paychecks from WV Assets due to COVID-19; however, there is no admissible evidence on this point (e.g. a declaration) and no evidence admissible or otherwise concerning WV Assets. Davies stated that any “previous earnings mentioned on any statement are all estimates as the business that I was working in fluctuates monthly”; however, it is Davies’ burden to establish that his earnings are low enough as to be encompassed by his necessary monthly expenses.

The sole items of income evidence are Davies’ Form 1099G and Form SSA-1099 for 2020, indicating he received unemployment compensation of $30,450.00 and social security benefits of $27,259.20. However, these documents do not reflect “earnings” subject to wage garnishment. (CCP sec. 706.011(b) (“‘Earnings’ means compensation payable by an employer to an employee for personal services performed by such employee, whether denominated as wages, salary, commission, bonus, or otherwise.”)) These Forms therefore tell the Court little about the extent of earnings potentially subject to garnishment—as needed to evaluate the need for an exemption.

Davies also has not carried his burden to establish the extent of his monthly expenses. While Davies initially claimed to have a spousal support obligation of $3,000 monthly, his obligation was in reality $2,500 monthly and he is paying just a portion thereof—$650 per month. (Blum Decl., Exh. C.) Davies did not provide evidence to support any of the other claimed monthly expenses, particularly the claimed $1,685 in monthly debt installment payments and $2,000 in monthly rent payments. Davies adduced evidence only that he was making $650 payments on his ex-wife’s rent but no evidence regarding his own rental or mortgage obligations. Davies filed literally no evidence regarding any of the other claimed necessities (e.g. clothing, medical expenses, utilities, and/or auto expenses and insurance totaling $1,399 monthly).

From the evidence provided, the Court could conclude at most that Davies is paying $650 per month (and has been for several months now) as a portion of his spousal support obligation. Davies indicated it was not necessary for him to pay the remainder of his obligation because he was able to obtain COVID-related rent subsidies for his ex-wife. As discussed above, Davies has not established his monthly income; as a result, he cannot establish that all of his earnings are necessary for these monthly $650 rent payments. Davies has not established any of the other necessary monthly expenses claimed. Therefore, at this time, further evidence is required. Briefing also appears necessary, both to afford Herbert an opportunity to respond to new evidence and so that Davies can offer an account of his financial situation. The Court intends to continue the matter for further briefing and evidence.

CONCLUSION

The Motion to Determine Claim of Exemption is CONTINUED to June 22, 2021 at 8:30 a.m. in this Department. Davies shall file a supplemental brief and supplemental evidence regarding earnings and necessary expenses supporting his claim of exemption at least ten (10) days before the hearing. Any Response thereto shall be filed at least five (5) days before the hearing. The Supplemental Briefs shall not exceed twelve pages.

Herbert to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear remotely by LA Court Connect rather than in person.


[1] Davies’ spousal support obligation is in fact only for $2,500 monthly. Moreover, Davies indicated he is not paying the full amount of spousal support and has not been since October 2020 due to COVID-19; he is only paying roughly a quarter of his obligation.

[2] Davies claims he owes the following debts giving rise to monthly installment payments: Citi USA, owed “for living” (monthly payment of $119 and balance of $7,500); Citi Master, owed “for living” (monthly payment of $219 and balance of $5,800); Synchrony Bank, owed “for living” (monthly payment of $190 and balance of $7,000); Discover, owed “for living” (monthly payment of $212 and balance of $6,800); Pay Pal, owed “for living” (monthly payment of $173 and balance of $5,800); Capital One, owed for an unstated purpose (monthly payment of $42 and balance of $4,800); and FRT Credit, owed for an unstated purpose (monthly payment of $154 and balance of $5,500). Further, Davies claims he is making $160 monthly payments on his state taxes and $416 monthly payments on his federal taxes for tax year 2017, both debts bearing a balance of $8,000.

Case Number: BC368713    Hearing Date: March 30, 2021    Dept: 20

Tentative Ruling

Judge Kevin C. Brazile

Department 1


Hearing Date: Tuesday, March 30, 2021

Case Name: Paul W. Herbert v. Donald K. Davies, et al.

Case No.: BC368713

Motion: Determine Claim of Exemption by Donald K. Davies

Moving Party: Creditor Paul W. Herbert

Responding Party: N/A (unopposed)

Notice: OK


Ruling: The Motion to Determine Claim of Exemption is DENIED.

Plaintiff to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear remotely by LA Court Connect rather than in person.


 

BACKGROUND

 

On March 29, 2007, Plaintiff Paul W. Herbert filed a Complaint against Defendants Donald K. Davies (“Davies”), Pamela Monroe Davies, Ralph Ramirez, T2 Holdings, Inc., Stonegate Ventures, Inc., Residential Ventures, Inc., DHP Investments, Inc., Tower One Properties, Inc., Ira Friedman, and Does 1-40, stating causes of action for breach of oral agreement, breach of the implied covenant of good faith and fair dealing, breach of fiduciary duty, fraud, conversion, fraudulent transfer, conspiracy to defraud, misappropriation of trade secrets, unjust enrichment, money had and received, unfair competition, accounting, constructive trust, declaratory relief, and appointment of a receiver.

On August 25, 2009, the parties stipulated to arbitration.

On February 10, 2010, the arbitrator issued an award finding in favor of Herbert against Davies, Pamela Davies, T2 Holdings, Stonegate Ventures, Residential Ventures, DHP, Tower One Properties, and FPB Holding. The award provided for judgment in Herbert’s favor against the foregoing Defendants for $1,627,657.00 plus 10% annual interest.

On June 29, 2010, the Court confirmed the arbitration award and entered judgment on the terms set out above.

On October 15, 2015, the U.S. Bankruptcy Court for the Central District of California, presiding over the Davies' Chapter 7 bankruptcy case, issued a Judgment Declaring Indebtedness Partially Nondischargeable as to Donald Kevin Davies and Dischargeable as to Pamela Monroe Davies. The bankruptcy judgment provided that “$497,058 of Donald Kevin Davies’ indebtedness to Paul W. Herbert is not discharged and (ii) Pamela Monroe Davies’ indebtedness to Paul W. Herbert is discharged.” It further provided that “[i]nterest on this $497,058 will accrue at the rate of .27% per annum (which is $3.67/day) commencing on October 16, 2015 (with such interest to be compounded and reset annually).”

On November 6, 2019, Herbert filed an Application For and Renewal of Judgment, renewing the judgment rendered on June 29, 2010 against Defendants (including the judgment against Davies as limited by the bankruptcy judgment).

On December 8, 2020, the Court issued a Writ of Execution directing the San Francisco County Sherriff to enforce the judgment.

On February 22, 2021, Davies filed a Claim of Exemption with the San Francisco County Sherriff, claiming his wages were exempt from levy by an earnings withholding order.

On March 4, 2021, Herbert filed a Motion for Order Determining and Denying Claim of Exemption re: Wage Garnishment, seeking an order denying Davies’ Claim of Exemption. Davies did not file a response.

 

DISCUSSION

Applicable Law

CCP sec. 706.050 establishes “the maximum amount of disposable earnings of an individual judgment debtor for any workweek that is subject to levy under an earnings withholding order.” A further “hardship exemption” from wage garnishment may be obtained under CCP sec. 706.051(b), which “exempt[s] from levy” by wage garnishment “the portion of the judgment debtor's earnings that the judgment debtor proves is necessary for the support of the judgment debtor or the judgment debtor's family supported in whole or in part by the judgment debtor.” However, that exemption is unavailable if the relevant debt “was incurred pursuant to an order or award for the payment of attorney’s fees under [Family Code] Section 2030, 3121, or 3557” or “was incurred for personal services rendered by an employee or former employee of the judgment debtor.” (CCP sec. 706.051(c)(1)-(2).) The exemption also does not apply where the debtor seeks exemption from “a withholding order for support under [CCP] Section 706.030” or a “state tax order” governed by CCP sec. 706.070 et seq. (CCP sec. 706.051(c)(3)-(4).)

“A judgment creditor who desires to contest a claim of exemption shall, within 10 days after the date of the mailing of the notice of claim of exemption, file with the levying officer a notice of opposition to the claim of exemption.” (CCP sec. 706.105(d).) If a notice of opposition is timely filed, “the judgment creditor is entitled to a hearing on the claim of exemption.” (CCP sec. 706.105(e).) If the creditor “desires a hearing on the claim of exemption, the judgment creditor shall 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.” (CCP sec. 706.105(e).) The “judgment creditor shall give written notice of the hearing to the levying officer and shall serve a notice of the hearing and a copy of the notice of opposition to the claim of exemption on the judgment debtor.” (CCP sec. 706.105(e).) “The judgment creditor shall file proof of the service with the court.” (CCP sec. 706.105(e).) “After receiving the notice of the hearing and before the date set for the hearing, the levying officer shall file the claim of exemption and the notice of opposition to the claim of exemption with the court.” (CCP sec. 706.105(e).)

However, “[i]f the levying officer does not receive a notice of opposition to the claim of exemption within the 10-day period after the date of mailing of the notice of claim of exemption and a notice of the hearing not later than 10 days after the filing of the notice of opposition to the claim of exemption,” a different procedure applies. (CCP sec. 706.105(f).) In that case, “the levying officer shall serve on the employer one of the following: (1) A notice that the earnings withholding order has been terminated if all of the judgment debtor's earnings were claimed to be exempt[; or] (2) A modified earnings withholding order that reflects the amount of earnings claimed to be exempt in the claim of exemption if only a portion of the judgment debtor's earnings was claimed to be exempt.”

Application to Facts

Here, Davies' Claim of Exemption states that he needs “[a]ll earnings” to support himself or his family and that he is paid irregularly, “whenever there is work.” (Roza Decl., Exh. D.) Davies indicates he is “willing for [$200.00] to be withheld from [his] earnings each pay period during the withholding period.” (Roza Decl., Exh. D.) In his supporting Financial Statement, Davies indicates he has a “CRT order to pay 3000 monthly” to his ex-wife and states his gross monthly pay and monthly take-home pay are $3,000.00 (no payroll deductions were identified). (Roza Decl., Exh. D.) Davies states he has $40.00 in cash, $238 in a checking account, and a 2018 Toyota Prius (the references to another Toyota vehicle and the monetary value of the Prius are both illegible). (Roza Decl., Exh. D.) Davies claims no real estate equity or other personal property (e.g. "jewelry, furniture, furs, stocks, bonds”). (Roza Decl., Exh. D.)

Davies claims the “monthly expenses for [him], [his] spouse, and [his] other dependents” total $9,379.00, consisting of the following: $2,000.00 for “[r]ent or house payment and maintenance,” $600.00 for food and household supplies, $295.00 for utilities and telephone services, $50.00 for clothing, $200.00 for medical and dental payments, $809.00 for “auto” insurance, $3,000.00 for spousal support (per the previously referenced order), $590 for auto expenses (Davies underlined “gas”), $1,685 in installment payments for debts set out below, $50.00 for laundry and cleaning, and $100 for entertainment. (Roza Decl., Exh. D.) Davies claims he owes the following debts giving rise to $1,685 in monthly installment payments: Citi USA, owed “for living” (monthly payment of $119 and balance of $7,500); Citi Master, owed “for living” (monthly payment of $219 and balance of $5,800); Synchrony Bank, owed “for living” (monthly payment of $190 and balance of $7,000); Discover, owed “for living” (monthly payment of $212 and balance of $6,800); Pay Pal, owed “for living” (monthly payment of $173 and balance of $5,800); Capital One, owed for an unstated purpose (monthly payment of $42 and balance of $4,800); and FRT Credit, owed for an unstated purpose (monthly payment of $154 and balance of $5,500). (Roza Decl., Exh. D.) Further, Davies claims he is making $160 monthly payments on his state taxes and $416 monthly payments on his federal taxes for tax year 2017, both debts bearing a balance of $8,000. (Roza Decl., Exh. D.)

Herbert contends the foregoing claim of exemption is inadequate. Initially, the Court finds Herbert complied with the opposition procedures in CCP sec. 706.105. Herbert timely served a Notice of Opposition to Claim of Exemption on Davies and the San Francisco County Sheriff and filed a proof of service with the Court. (CCP sec. 706.105(d)-(e).) Similarly, Herbert timely filed and served the Motion for Order Determining the Claim of Exemption on Davies. However, the proof of service does not indicate Herbert filed the Motion or Notice of Hearing thereon with the levying officer. (CCP sec. 706.105(e) (the “judgment creditor shall give written notice of the hearing to the levying officer...”)) Indeed, this is likely why the levying officer never “file[d] the claim of exemption and the notice of opposition . . . with the court,” as this is only required “[a]fter receiving the notice of the hearing and before the date set for the hearing.” (CCP sec. 706.105(e).) The Court therefore requires further input as to whether Herbert complied with these procedures by timely providing the Sherriff the Notice of Hearing. The failure to do so may require acceptance of the Claim of Exemption. (CCP sec. 705.105(f) (providing consequences where “the levying officer does not receive . . . a notice of the hearing not later than 10 days after the filing of the notice of opposition to the claim of exemption.”); see also CCP sec. 705.105(h) (providing for subsequent reapplication for earnings withholding order where appropriate).) In Westervelt v. Robertson (1981) 122 Cal.App.3d Supp. 1, the court held that “the statutory procedure mandates the levying officer to release the wages or other property of the debtor when there is an untimely filing of the notice of opposition to the claim of exemption.” (Id. at 9.)  Further, “if there is an untimely filing of either the notice of opposition to the claim of exemption or the notice of hearing, there can be no claim of exemption hearing.” (Id.)

However, assuming compliance with the foregoing procedures, the Court observes that Davies’ Claim of Exemption (as provided by Herbert, not Davies; Roza Decl., Exh. D) is not supported by any evidence of the income and debts claimed (e.g. pay stubs, bank statements, a copy of the claimed support order, or documents supporting the claimed monthly payments on bank and tax debts). The hardship exemption applies only to those “earnings that the judgment debtor proves is necessary for the support of the judgment debtor” or family supported by the debtor. (CCP sec. 706.051(b).) This plain statutory language puts the burden on Davies to establish the hardship exemption applies here by supporting his now-contested Claim of Exemption (again, assuming correct procedures for opposition were followed—which is unclear). Davies did not submit a response and has not indicated whether he plans on appearing for the hearing on March 30, 2021.  

For the foregoing reasons, the Court is inclined to DENY the Motion on the grounds that Herbert has not demonstrated compliance with the statutory requirements for provision of the notice of hearing, which would trigger the levying officer’s obligation to provide the Court with the Claim of Exemption and Notice of Opposition (which were not filed).

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