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This case was last updated from Los Angeles County Superior Courts on 06/07/2019 at 01:56:33 (UTC).

KEN MENG VS ROWLAND HEIGHTS MOBILE ESTATES

Case Summary

On 05/05/2017 KEN MENG filed a Property - Other Eviction lawsuit against ROWLAND HEIGHTS MOBILE ESTATES. This case was filed in Los Angeles County Superior Courts, Pomona Courthouse South located in Los Angeles, California. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9291

  • Filing Date:

    05/05/2017

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Property - Other Eviction

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Pomona Courthouse South

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiffs

CHEUNG DIANE

MENG KEN

Defendants

OLISAN INC

ROWLAND HEIGHTS MOBILE ESTATES

Not Classified By Court

TEST PARTY FOR TRUST CONVERSION

Attorney/Law Firm Details

Defendant Attorney

BERGSTROM ESQ. EMILY D.

 

Court Documents

Unknown

4/12/2018: Unknown

Notice

5/7/2019: Notice

 

Docket Entries

  • 05/07/2019
  • Notice (NOTICE OF ASSOCIATION OF COUNSEL); Filed by ROWLAND HEIGHTS MOBILE ESTATES (Defendant); OLISAN, INC (Defendant)

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  • 05/17/2018
  • Notice; Filed by Clerk

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  • 04/12/2018
  • Unknown Document Type; Filed by Clerk

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  • 04/12/2018
  • Remittitur - Other

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  • 03/27/2018
  • Ntc to Prty re fee Clk's Transcpt; Filed by Clerk

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  • 02/22/2018
  • Notice; Filed by Clerk

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  • 01/17/2018
  • Designation of Record on Appeal; Filed by ROWLAND HEIGHTS MOBILE ESTATES (Defendant); OLISAN, INC (Defendant)

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  • 01/16/2018
  • Ntc to Attorney re Notice of Appeal; Filed by Clerk

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  • 01/08/2018
  • Proof of Service (not Summons and Complaint); Filed by KEN MENG (Plaintiff); DIANE CHEUNG (Plaintiff)

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  • 01/08/2018
  • Notice of Appeal; Filed by KEN MENG (Plaintiff); DIANE CHEUNG (Plaintiff)

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39 More Docket Entries
  • 06/02/2017
  • Points and Authorities; Filed by ROWLAND HEIGHTS MOBILE ESTATES (Defendant); OLISAN, INC (Defendant)

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  • 06/02/2017
  • Declaration; Filed by ROWLAND HEIGHTS MOBILE ESTATES (Defendant); OLISAN, INC (Defendant)

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  • 06/02/2017
  • Request for Judicial Notice; Filed by ROWLAND HEIGHTS MOBILE ESTATES (Defendant); OLISAN, INC (Defendant)

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  • 06/02/2017
  • Notice; Filed by OLISAN, INC (Defendant)

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  • 06/02/2017
  • Demurrer; Filed by ROWLAND HEIGHTS MOBILE ESTATES (Defendant)

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  • 06/02/2017
  • Request for Judicial Notice; Filed by ROWLAND HEIGHTS MOBILE ESTATES (Defendant); OLISAN, INC (Defendant)

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  • 06/02/2017
  • Declaration; Filed by ROWLAND HEIGHTS MOBILE ESTATES (Defendant); OLISAN, INC (Defendant)

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  • 06/02/2017
  • Points and Authorities; Filed by ROWLAND HEIGHTS MOBILE ESTATES (Defendant); OLISAN, INC (Defendant)

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  • 05/09/2017
  • Notice of Case Management Conference; Filed by Clerk

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  • 05/05/2017
  • Complaint; Filed by KEN MENG (Plaintiff); DIANE CHEUNG (Plaintiff)

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Tentative Rulings

Case Number: KC069291    Hearing Date: January 26, 2021    Dept: J

HEARING DATE: Tuesday, January 26, 2021

NOTICE: NOT OK[1]

RE: Meng, et al. v. Rowland Heights Mobile Estates, et al. (KC069291)

______________________________________________________________________________

 

Plaintiffs/Judgment Debtors Ken Meng and Diane Cheung’s MOTION FOR ORDER TO VACATE JUDGMENT

Responding Party: Defendant, Rowland Heights Mobile Estates, a Limited Partnership dba Rowland Heights Mobile Estates

Tentative Ruling

Plaintiffs/Judgment Debtors Ken Meng’s Motion for Order to Vacate Judgment is

DENIED.

Background

Plaintiffs Ken Meng (“Meng”) and Diane Cheung (“Cheung”) (collectively, “Plaintiffs”) allege that in July 2012, Cheung closed escrow for a mobilehome located at 1441 Paso Real Ave Spc #133 in Rowland Heights, California 91748. Plaintiffs allege that Defendant Rowland Heights Mobile Estates dba Rowland Heights Mobile Estates (“RHME”) and RHME’s property management company, Defendant Olisan, Inc. (“Olisan”) have denied Plaintiffs the right to peacefully assemble in the mobilehome park and to distribute and circulate information and instituted unlawful detainer proceedings against Plaintiff in retaliation for exercising these rights.

On May 5, 2017, Plaintiffs filed a complaint, asserting causes of action against RHME, Olisan and Does 1-10 for:

  1. Retaliatory Eviction (Civil Code § 1942.5)

  2. Violation of Civil Code § 798.51 (Right of Homeowners to Communicate in Park)

  3. Violation of Civil Code § 798.51 (Right of Homeowners to Use Park Clubhouse)

  4. Preliminary and Permanent Injunction

  5. Declaratory Relief

On July 12, 2017, the court sustained RHME’s and Olisan’s demurrers without leave to amend, and ordered the action dismissed with prejudice. On July 19, 2017, judgment was entered. On August 23, 2017, Plaintiffs filed their notice of appeal. On August 25, 2017, RHME and Olisan filed their notice of entry of judgment and mail-served same that day.

On December 6, 2017, the court granted RHME’s and Olisan’s motion for attorney’s fees, in the amount of $19,336.25. On January 1, 2018, Plaintiffs filed a Notice of Appeal. On June 27, 2019, the remittitur was filed.

Discussion

Plaintiffs move the court for an order to vacate judgment, “on the grounds that the judge does not have the right and capability to making a ruling on this case based on prior actions and evidence.” (Motion, 1:27-28.)

At the outset, it is not clear what Plaintiffs seek to vacate. Code of Civil Procedure § 1010 provides, in relevant part, that “[n]otices must be in writing, and the notice of a motion . . . must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based,” California Rules of Court Rule 3.1110, subdivision (a) states that “[a] notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.” Judgment was entered on July 19, 2017 and subsequently affirmed on appeal. It appears that Plaintiffs seek to set aside the court’s orders made in connection with several claims of exemption.

Plaintiffs appear to base their motion on Code of Civil Procedure § 473, subdivision (d) (i.e., “[t]he court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”) Plaintiffs, however, do not identify any clerical mistakes that have been made in any judgment or order issued in this case, nor do they identify any legal basis for their claim that any judgment or order issued in this case is void. A judgment is void if the trial court does not have “fundamental authority over the subject matter, question presented, or party.” (In re Marriage of Goddard (2004) 33 Cal.4th 49, 56.) Plaintiffs do not argue that the court does not have jurisdiction over the subject matter, the question presented, or the parties; in fact, by filing their complaint in this court, Plaintiffs submitted the case and themselves to the court’s jurisdiction.

The motion, then, is denied.


[1] The motion was filed on January 4, 2021 and set for hearing on January 26, 2021; this reflects insufficient Code of Civil Procedure § 1005, subdivision (b) notice (i.e., moving papers must be filed at least 16 court days prior to the hearing date). The motion should have been filed no later than December 31, 2020 (i.e., January 1, 2021 and January 18, 2021 are court holidays). The motion, moreover, does not appear to have been accompanied by a proof of service, nor has a proof of service been subsequently filed. With that said, “[i]t is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of the motion.” (Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930.) The motion has been substantively opposed. Accordingly, the court will entertain the merits of the motion.

Case Number: KC069291    Hearing Date: December 11, 2020    Dept: J

HEARING DATE: Friday, December 11, 2020

NOTICE: OK[1]

RE: Meng, et al. v. Rowland Heights Mobile Estates, et al. (KC069291)

______________________________________________________________________________

 

HEARING ON PLAINTIFF/JUDGMENT DEBTOR KEN MENG’S CLAIM OF EXEMPTION

Responding Party: Plaintiffs/Judgment Creditors Rowland Heights Mobile Estates dba Rowland Heights Mobile Estates and Olisan, Inc.

Tentative Ruling

Plaintiff/Judgment Debtor Ken Meng’s Claim of Exemption is DENIED [see below].

Background

Plaintiffs Ken Meng (“Meng”) and Diane Cheung (“Cheung”) (collectively, “Plaintiffs”) allege that in July 2012, Cheung closed escrow for a mobilehome located at 1441 Paso Real Ave Spc #133 in Rowland Heights, California 91748. Plaintiffs allege that Defendant Rowland Heights Mobile Estates dba Rowland Heights Mobile Estates (“RHME”) and RHME’s property management company, Defendant Olisan, Inc. (“Olisan”) have denied Plaintiffs the right to peacefully assemble in the mobilehome park and to distribute and circulate information and instituted unlawful detainer proceedings against Plaintiff in retaliation for exercising these rights.

On May 5, 2017, Plaintiffs filed a complaint, asserting causes of action against RHME, Olisan and Does 1-10 for:

  1. Retaliatory Eviction (Civil Code § 1942.5)

  2. Violation of Civil Code § 798.51 (Right of Homeowners to Communicate in Park)

  3. Violation of Civil Code § 798.51 (Right of Homeowners to Use Park Clubhouse)

  4. Preliminary and Permanent Injunction

  5. Declaratory Relief

On July 12, 2017, the court sustained RHME’s and Olisan’s demurrers without leave to amend, and ordered the action dismissed with prejudice. On July 19, 2017, the judgment was filed. On August 23, 2017, Plaintiffs filed their notice of appeal. On August 25, 2017, RHME and Olisan filed their notice of entry of judgment and mail-served same that day.

On December 6, 2017, the court granted RHME’s and Olisan’s motion for attorney’s fees, in the amount of $19,336.25. On January 1, 2018, Plaintiffs filed a Notice of Appeal. On June 27, 2019, the remittitur was filed.

On September 11, 2020, a writ of execution was issued.

Discussion

Defendants/Judgment Creditors RHME and Olisan (“Judgment Creditors”) oppose the Claim of Exemption submitted by Plaintiff/Judgment Debtor Ken Meng (“Meng”).

TIMELINESS: To oppose a claim of exemption, within 15 days after service of the notice of claim of exemption (or, ordinarily within 20 days if the levying officer served the notice by mail, see Code Civ. Proc. § 684.120), the judgment creditor must file with the court a notice of opposition to the claim of exemption (Judicial Council Form EJ-170), a notice of motion for an order determining the claim of exemption and notice of hearing on claim of exemption (Judicial Council Form EJ-175) and file copies of each of these documents with the levying officer. (Code Civ. Proc., § 703.550, subd. (a).)

If the copies of the judgment creditor’s notice of opposition and notice of motion are not timely filed with the levying officer, the levying officer must immediately release the property claimed exempt. (Code Civ. Proc., § 703.550, subd. (a).)

At least 10 days prior to the hearing (longer if service is by mail), the judgment creditor must serve on the exemption claimant (and on the judgment debtor if different from the claimant) the Notice of Hearing on Claim of Exemption, and a copy of the Notice of Opposition to Claim of Exemption. (Code Civ. Proc., § 703.570, subd. (b).)

The hearing on the exemption claim must be held no later than 30 days from the date the notice of motion was filed with the court, unless the court continues the hearing for good cause. (Code Civ. Proc., §703.570, subd. (a).) Unless otherwise ordered by the court, property claimed to be exempt must be released if an exemption is not determined within the time provided by Section 703.570. (Code Civ. Proc., § 703.580, subd. (f).)

Here, the Notice of Filing Claim of Exemption was mailed on September 25, 2020. The Notice of Hearing on Claim of Exemption and Notice of Opposition to Claim of Exemption were served on the levying officer and judgment debtors on October 14, 2020 and filed with the court that day. The hearing was originally set within 30 days from the date of the notice of the motion.

BURDEN OF PROOF: The exemption claimant bears the burden of proof at the hearing. (Code Civ. Proc., § 703.580(b).) “[E]xemption statutes are to be liberally construed in favor of the debtor.” (Independence Bank v. Heller (1969) 275 Cal.App.2d 84, 88.)

The Claim of Exemption and any attached Financial Statement and Notice of Opposition to Claim of Exemption constitute the pleadings for the hearing. (Code Civ. Proc., § 703.580, subd. (a).) The court may permit amendments thereto in the interest of justice. (Id.)

The judgment creditor must include both of the following: (a) an allegation either (1) that the property is not exempt under the enforcement of judgments law (“EJL”) or other statute relied upon or (2) that the equity in the property claimed to be exempt is greater than the amount provided by the exemption and (b) a statement of the facts necessary to support the allegation. (Code Civ. Proc., § 703.560.)

The court’s decision may be based solely on the information in the claim of exemption and notice of opposition, of the court may continue the hearing for production of other oral or documentary evidence. (Code Civ. Proc., § 703.580.)

Here, Meng claims, in Section 4 of his Claim of Exemption, that the following property is exempt: “Unemployment Benefits CU SoCal Credit Union of Southern California.”

Under Code of Civil Procedure § 703.520(b)(6), Meng is required to submit “[a] statement of the facts necessary to support the claim.” Section 5 of the Claim of Exemption references Code of Civil Procedure §§ 704.120 as the basis for the exemptions. This provision is entitled “Unemployment insurance and compensation funds; exemption; child support judgments.” The claim, however, is not clear; in his financial statement, the income Meng lists is a combination of unemployment benefits which it appears are paid to Cheung, and Cal-Fresh, in a total combined amount of $1,016.00. These are two distinct types of income. The amount of unemployment benefits is not given. No code section is cited for an exemption for Cal-Fresh. No information is given as to when either of these benefits started, and for what period the $1,016.00 has been paid. The only fact given to support the claim of this exemption is “Coronavirus pandemic.”

While Meng has not checked box 7 on his Claim of Exemption, indicating that “[t]he claim is made pursuant to a provision exempting property to the extent necessary for the support of the judgment debtor and dependents of the judgment debtor,” Meng has not cited any applicable legal authority. The information contained on Meng’s Financial Statement, moreover, is ambiguous and incomplete. In line 1.a., Meng states that Cheung receives monthly take-home income and source as “Unemployment.” In line 2.a., Meng initially stated his gross monthly income is $1,000.00; however, this figure was crossed out and replaced with “0.” In line 2.d. (i.e., “[o]ther money I get each month from (specify source),” Meng wrote “[u]nemployment benefits + Cal-Fresh,” giving one total sum of $1,016.00. In line 2.e., Meng states that his total monthly income is $1,016.00. On page 2 of his Financial Statement, Meng lists $850.00 as his monthly expenses. Meng has not complied with Code of Civil Procedure § 704.225, which provides that “[m]oney in a judgment debtor’s deposit account that is not otherwise exempt under this chapter is exempt to the extent necessary for the support of the judgment debtor and the spouse and dependents of the judgment debtor.” Even if Meng has $850.00 in monthly expenses, he fails to account for the $166.00 surplus.

Meng has not provided “[a] list of the assets of the judgment debtor and the spouse and dependents of the judgment debtor and the value of such assets,” as required by Code of Civil Procedure § 703.530, subdivision (b)(4). Section 703.115 provides that “[i]n determining an exemption based upon the needs of the judgment debtor and the spouse and dependents of the judgment debtor or an exemption based upon the needs of the judgment debtor and the family of the judgment debtor, the court shall take into account all property of the judgment debtor and, to the extent the judgment debtor has a spouse and dependents of family, all property or such spouse and dependents or family, including community property and separate property of the spouse, whether or not such property is subject to enforcement of the money judgment.” There are significant discrepancies in the Financial Statement attached to the current Claim of Exemption compared to Financial Statements filed in August 2019 and February 2020 (See Levine Decl., ¶¶3-4, Exhs. 1 and 2), particularly as to the valuation of their car and equity in their mobilehome.

Meng also has failed to meet his burden of tracing the alleged exempt funds, as per Code of Civil Procedure § 703.080.

Meng’s claim of exemption, then, is DENIED. The levying officer is directed to release 70% of any funds held to the Judgment Creditors for payment on the judgment.


[1] The hearing to determine the claim of exemption was originally set for November 9, 2020. On October 16, 2020, a “Notice Re: Continuance of Hearing and Order” was filed, wherein the court, on its own motion, continued the November 9, 2020 hearing to December 11, 2020 at 10:00 a.m.; notice was given to all parties.

Case Number: KC069291    Hearing Date: September 03, 2020    Dept: J

HEARING DATE: Thursday, September 3, 2020

NOTICE: OK[1]

RE: Meng, et al. v. Rowland Heights Mobile Estates, et al. (KC069291)

______________________________________________________________________________

 

Plaintiffs/Judgment Debtors Ken Meng’s and Diane Cheung’s MOTION FOR RECONSIDERATON OF ORDER TO DENY CLAIM OF EXEMPTION

Responding Party: Plaintiffs/Judgment Creditors Rowland Heights Mobile Estates dba Rowland Heights Mobile Estates and Olisan, Inc.

Tentative Ruling

Plaintiffs/Judgment Debtors Ken Meng’s and Diane Cheung’s Motion for Reconsideration

of Order to Deny Claim of Exemption is DENIED.

Background

Plaintiffs Ken Meng (“Meng”) and Diane Cheung (“Cheung”) (collectively, “Plaintiffs”) allege that in July 2012, Cheung closed escrow for a mobilehome located at 1441 Paso Real Ave Spc #133 in Rowland Heights, California 91748. Plaintiffs allege that Defendant Rowland Heights Mobile Estates dba Rowland Heights Mobile Estates (“RHME”) and RHME’s property management company, Defendant Olisan, Inc. (“Olisan”) have denied Plaintiffs the right to peacefully assemble in the mobilehome park and to distribute and circulate information and instituted unlawful detainer proceedings against Plaintiff in retaliation for exercising these rights.

On May 5, 2017, Plaintiffs filed a complaint, asserting causes of action against RHME, Olisan and Does 1-10 for:

  1. Retaliatory Eviction (Civil Code § 1942.5)

  2. Violation of Civil Code § 798.51 (Right of Homeowners to Communicate in Park)

  3. Violation of Civil Code § 798.51 (Right of Homeowners to Use Park Clubhouse)

  4. Preliminary and Permanent Injunction

  5. Declaratory Relief

On July 12, 2017, the court sustained RHME’s and Olisan’s demurrers without leave to amend, and ordered the action dismissed with prejudice. On July 19, 2017, the judgment was filed. On August 23, 2017, Plaintiffs filed their notice of appeal. On August 25, 2017, RHME and Olisan filed their notice of entry of judgment and mail-served same that day.

On December 6, 2017, the court granted RHME’s and Olisan’s motion for attorney’s fees, in the amount of $19,336.25. On January 1, 2018, Plaintiffs filed a Notice of Appeal. On June 27, 2019, the remittitur was filed.

On October 1, 2019, an Order Determining Claim of Exemption of Bank Levy was filed, wherein the court denied Judgment Debtors’ Claim of Exemption and directed the levying officer to release 70% of any funds held to Judgment Creditor.

On January 9, 2020, a writ of execution was issued. On March 9 2020, an Order Determining Claim of Exemption of Bank Levy was filed, wherein the court denied Judgment Debtors’ Claim of Exemption and directed the levying officer to release 70% of any funds held to Judgment Creditor.

Legal Standard

“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Code Civ. Proc., § 1008(a).)

The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered, and some valid reason for not offering it earlier. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500; Mink v. Sup. Ct. (Arnel Develop. Co., Inc.) (1992) 2 Cal.App.4th 1338, 1342; Baldwin v. Home Sav. of America (1997) 59 Cal.App.4th 1192, 1198.) “The burden under section 1008 is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.” (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-213.)

Discussion

Plaintiffs move the court, per Code of Civil Procedure § 1008(a), for reconsideration of the court’s March 9, 2020 order denying Cheung’s claim of exemption.

At the outset, the court notes that the motion is not signed or dated. The court requests that Plaintiffs correct these deficiencies on or before the date and time of the hearing.

Request for Judicial Notice

The court rules on Defendants/Judgment Creditors’ Request for Judicial Notice as follows: Denied as to Exhibits 1 and 4 (i.e., letter from Cheung to RHME dated July 31, 2019 and email from Cheung to Defendants’ counsel Maureen Hatchell-Levine dated April 10, 2019, respectively) and Granted as to Exhibits 2 and 3 (i.e., claims of exemption).

 

Merits

 

Plaintiffs appear to seek reconsideration of the court’s March 9, 2020 order on the basis that they had been approved for welfare benefits prior to the date of the hearing. Plaintiffs allege they “received [a] prejudgment paper while walking into the court, [but] were not able to prepare the document as evidences of showing supported by government [sic].” (Motion, 5:5-6.)

Code of Civil Procedure § 704.170 provides that “[b]efore payment, aid provided pursuant to Division 9 (commencing with Section 10000) of the Welfare and Institutions Code or similar aid provided by a charitable organization or a fraternal benefit society as defined in Section 10990 of the Insurance Code, is exempt without making a claim. After payment, the aid is exempt.”

The money in Plaintiffs’ account did not fall under the definition of aid, pursuant to Code of Civil Procedure § 704.170. Plaintiffs maintain the burden to trace the allege exempt funds to the funds that are within their account. (Code Civ., Proc., § 703.080(b) [ “The exemption claimant has the burden of tracing an exempt fund”].) Plaintiffs claim the aid started on January 2, 2020 (Motion, 5:15); however, the “Notice of Action CalWorks Approval” dated March 3, 2020 (attached as Exhibit A) expressly states that “[a]s of 02/24/2020, the County has approved your application for cash aid and Medi-Cal.” Plaintiffs also state that the levy was placed on January 29, 2020. (Id., 2:7-8.) The money in Plaintiffs’ bank account, then, cannot possibly consist of any sort of aid falling under Code of Civil Procedure § 704.170, since the aid was not paid until after the bank levy. Plaintiffs have not provided any evidence that any relevant aid was given to them by the government prior to the bank levy and thus have not traced the alleged exempt funds in their bank account.

Additionally, even if Plaintiffs’ claims that they received government aid on January 2, 2020, prior to the levy, are true, Plaintiffs failed to provide proof of said claim prior to the March 9, 2020 hearing. Again, Exhibit A reflects that Plaintiffs were provided notice on March 3,2020 and not as they were “walking into the courtroom,” as they claim. Plaintiffs, then, have not given a satisfactory explanation for their failure to present these documents prior to or at the March 9, 2020 hearing as required.

The motion is denied.


[1] The motion was filed on April 1, 2020 [no proof of service filed therewith]; that day, the court scheduled a hearing on the motion for June 10, 2020 at 8:30 a.m. and gave notice to Meng, Cheung and counsel for Defendants/Judgment Creditors RHME and Olisan. On April 27, 2020, the court rescheduled the June 10, 2020 hearing to September 25, 2020 at 10:00 a.m.; notice was given to counsel for Defendants/Judgment Creditors RHME and Olisan only. On June 30, 2020, a “Notice Re: Continuance of Hearing and Order” was filed, wherein the court, on its own motion, rescheduled the September 25, 2020 hearing to September 3, 2020 at 10:00 a.m.; notice was given to Meng, Cheung and counsel for Defendants/Judgment Creditors RHME and Olisan.

Case Number: KC069291    Hearing Date: March 09, 2020    Dept: J

HEARING DATE: Monday, March 9, 2020

NOTICE: OK

RE: Meng, et al. v. Rowland Heights Mobile Estates, et al. (KC069291)

______________________________________________________________________________

 

HEARING ON PLAINTIFF/JUDGMENT DEBTOR DIANE CHEUNG’S CLAIM OF EXEMPTION

Responding Party: Plaintiffs/Judgment Creditors Rowland Heights Mobile Estates dba Rowland Heights Mobile Estates and Olisan, Inc.

Tentative Ruling

Plaintiff/Judgment Debtor Diane Cheung’s Claim of Exemption is DENIED.

Background

Plaintiffs Ken Meng (“Meng”) and Diane Cheung (“Cheung”) (collectively, “Plaintiffs”) allege that in July 2012, Cheung closed escrow for a mobilehome located at 1441 Paso Real Ave Spc #133 in Rowland Heights, California 91748. Plaintiffs allege that Defendant Rowland Heights Mobile Estates dba Rowland Heights Mobile Estates (“RHME”) and RHME’s property management company, Defendant Olisan, Inc. (“Olisan”) have denied Plaintiffs the right to peacefully assemble in the mobilehome park and to distribute and circulate information and instituted unlawful detainer proceedings against Plaintiff in retaliation for exercising these rights.

On May 5, 2017, Plaintiffs filed a complaint, asserting causes of action against RHME, Olisan and Does 1-10 for:

  1. Retaliatory Eviction (Civil Code § 1942.5)

  2. Violation of Civil Code § 798.51 (Right of Homeowners to Communicate in Park)

  3. Violation of Civil Code § 798.51 (Right of Homeowners to Use Park Clubhouse)

  4. Preliminary and Permanent Injunction

  5. Declaratory Relief

On July 12, 2017, the court sustained RHME’s and Olisan’s demurrers without leave to amend, and ordered the action dismissed with prejudice. On July 19, 2017, the judgment was filed. On August 23, 2017, Plaintiffs filed their notice of appeal. On August 25, 2017, RHME and Olisan filed their notice of entry of judgment and mail-served same that day.

On December 6, 2017, the court granted RHME’s and Olisan’s motion for attorney’s fees, in the amount of $19,336.25. On January 1, 2018, Plaintiffs filed a Notice of Appeal. On June 27, 2019, the remittitur was filed.

On October 1, 2019, an Order Determining Claim of Exemption of Bank Levy was filed, wherein the court denied Judgment Debtors’ Claim of Exemption and directed the levying officer to release 70% of any funds held to Judgment Creditor.

On January 9, 2020, a writ of execution was issued.

Discussion

Defendants/Judgment Creditors RHME and Olisan (“Judgment Creditors”) oppose the Claims of Exemption submitted by Plaintiffs/Judgment Debtor Diane Cheung (“Cheung”).

TIMELINESS: To oppose a claim of exemption, within 10 days after service of the notice of claim of exemption (or, ordinarily within 15 days if the levying officer served the notice by mail, see CCP § 684.120), the judgment creditor must filed with the court a notice of opposition to the claim of exemption (Judicial Council Form EJ-170), a notice of motion for an order determining the claim of exemption and notice of hearing on claim of exemption (Judicial Council Form EJ-175) and file copies of each of these documents with the levying officer. (CCP § 703.550.) If the copies of the judgment creditor’s notice of opposition and notice of motion are not timely filed with the levying officer, the levying officer must immediately release the property claimed exempt. (CCP § 703.550.)

At least 10 days prior to the hearing (longer if service is by mail), the judgment creditor must serve on the exemption claimant (and on the judgment debtor if different from the claimant) the Notice of Hearing on Claim of Exemption, and a copy of the Notice of Opposition to Claim of Exemption. (CCP § 703.570(b).)

The hearing on the exemption claim must be held no later than 30 days from the date the notice of motion was filed with the court, unless the court continues the hearing for good cause. (CCP §703.570(a).) Unless otherwise ordered by the court, property claimed to be exempt must be released if an exemption is not determined within the time provided by Section 703.570. (CCP § 703.580(f).)

Here, the Notice of Filing Claim of Exemption was mailed on February 5, 2020. The Notice of Hearing on Claim of Exemption and Notice of Opposition to Claim of Exemption, Etc. were timely served on the levying officer and judgment debtors on February 18, 2020 and filed with the court that day. The hearing is also being heard within 30 days from the date of the notice of the motion.

BURDEN OF PROOF: The exemption claimant bears the burden of proof at the hearing. (CCP § 703.580(b).) “[E]xemption statutes are to be liberally construed in favor of the debtor.” (Independence Bank v. Heller (1969) 275 Cal.App.2d 84, 88.)

The Claim of Exemption and any attached Financial Statement and Notice of Opposition to Claim of Exemption constitute the pleadings for the hearing. (CCP § 703.580(a).) The court may permit amendments thereto in the interest of justice. (Id.)

The judgment creditor must include both of the following: (a) an allegation either (1) that the property is not exempt under the enforcement of judgments law (“EJL”) or other statute relied upon or (2) that the equity in the property claimed to be exempt is greater than the amount provided by the exemption and (b) a statement of the facts necessary to support the allegation. (CCP § 703.560.)

The court’s decision may be based solely on the information in the claim of exemption and notice of opposition, of the court may continue the hearing for production of other oral or documentary evidence. (CCP § 703.580.)

At the outset, the court DENIES Judgment Creditors’ Request for Judicial Notice in full.

Here, Cheung claims, in Section 4 of her Claim of Exemption, that the following property is exempt: “[b]ank funds, home, motor vehicle, household items, tithing (charity).”

Section 8 of Judgment Debtors’ respective Claims of Exemption lists additional property Judgment Debtors claim to be exempt: “a motor vehicle, the proceeds of an execution sale of a motor vehicle, or the proceeds of insurance or other indemnification for the loss, damage, or destruction of a motor vehicle” and “all other property of the same type owned by the judgment debtor, either alone of in combination with others, is: home, bank.” Judgment Creditor here, however, is seeking recourse through a bank levy.

Under CCP § 703.520(b)(6), Cheung is required to submit “[a] statement of the facts necessary to support the claim.” Section 5 of the Claim of Exemption references CCP §§ 703.140(b)(1)(2)(3) and 704.170 as the basis for the exemptions. CCP § 703.140, however, pertains to federal bankruptcy and Cheung has not asserted anywhere that she has filed for bankruptcy. CCP § 704.170 pertains to social services aid. Cheung has provided no evidence that any of Cheung’s income is from a charitable organization or fraternal benefit society, nor has she fulfilled her burden under CCP § 703.080 to trace any such funds into her bank account.

Cheung has not cited CCP § 703.530 as a basis for exemption, but has attached a Financial Statement and represent that the money is necessary for their support and the support of their dependents.

However, the only “facts which support this claim” are listed in the Financial Statements and Cheung’s reference to “[h]ome for residence, car for work, household items for living, and tithing as donations.” Cheung has not attached any further documentation. The information contained on Cheung’s Financial Statement, moreover, is suspect. Cheung lists a monthly income of $1,800.00 and Meng does not report any income; although Judgment Debtors’ only monthly income is apparently Cheung’s $1,800.00, Judgment Debtors have set forth total monthly expenses of $1,892.00.

Cheung’s claim of exemption, then, is DENIED.

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