17-CIV-02514 JACKIE KIM-CALLO VS. JEFFREY MARTINEZ, ET AL.

JACKIE KIM-CALLO JEFFREY MARTINEZ
CRAIG S. MILLER PRO/PER

MOTION TO ENFORCE THE COURT’S JUNE 6, 2018 AMENDED ORDER AGAINST JIN WU; TO ENFORCE THE COURT’S JUNE 6, 2018 ORDER AGAINST PEI WU AND FOR SANCTIONS AGAINST JIN WU AND PEI WU OR, ALTERNATIVELY, FOR AN ORDER TO SHOW CAUSE WHY JIN WU AND PEI WU SHOULD NOT BE FOUND IN CONTEMPT FOR THEIR VIOLATIONS OF COURT ORDERS AND FOR SANCTIONS BY JACKIE KIM-CALLO TENTATIVE RULING:

Plaintiff’s motion to enforce orders, for sanctions, for attorney’s fees and for OSC re contempt is denied in its entirety.

A. The OEXs Were Improperly Obtained.

As an initial matter, the Court notes that Plaintiff obtained Orders for Examination by submitting an Application stating that Plaintiff was a judgment creditor, Defendants were judgment debtors and the application was for “enforcement of judgment.” Further, the Order, which was prepared by Plaintiff, directs Defendant to “furnish information to aid in enforcement of a money judgment against you.” All of these statements are false since no judgment exists. Plaintiff is not a judgment creditor, Defendants are not judgment debtors and the examination was not for enforcement of a judgment. An OEX is not a tool for attachment purposes, except as against third persons, not parties. (See Code of Civ. Proc. Sect. 491.110.) Plaintiff improperly obtained the OEXs by misrepresentations to the Court.

B. Motion to Enforce Orders and for Sanctions.

Plaintiff’s requests to enforce the Turnover Orders and for sanctions is denied. To the extent the Orders direct Defendants to withdraw money from bank accounts and from safe deposit boxes, the Orders exceed the powers of the Court as a matter of law. (See Pacific Decision Sciences Corp. v. Superior Court (2004) 121 Cal.App.4th 1100 (turnover order directing defendant to deliver funds from bank account to sheriff was in excess of court’s jurisdiction).)

1. Deposit Accounts.

Section 482.080, subdivision (a) does not authorize a turnover order for deposit accounts. Deposit accounts are attached by serving the writ on the financial institution, not by taking any property into custody. (Code of Civ. Proc. Sect. 488.455.) Accordingly, section 482.080, subdivision (a)(1) does not authorize the issuance of a turnover order in aid of a writ levied against a deposit account or an account receivable. (Id. at 1108-09.) “Attachment Law statutes are subject to strict

September 26, 2018 Law and Motion Calendar PAGE 10 Judge: HONORABLE SUSAN GREENBERG, Department 3 ________________________________________________________________________ construction, and where a court is required to exercise its jurisdiction in a particular manner or subject to certain limitations, an act beyond those limits is in excess of its jurisdiction and void.” (Epstein v. Abrams (1997) 57 Cal.App.4th 1159, 1168, 67 Cal.Rptr.2d 555.) “Here, the court exceeded its authority under The Attachment Law.” (Pacific Decision Sciences, supra, 121 Cal.App.4th at 1106.)

2. Safe Deposit Boxes

For safe deposit boxes, the proper levy method is for the sheriff to “personally serve a copy of the writ of attachment and a notice of attachment on the financial institution with which the safedeposit box is maintained.” (Code of Civ. Proc. Sect. 488.460.)

3. The Order Incorrectly Directs Property to Be Delivered to Plaintiff’s Counsel.

To the extent the Orders direct Defendants to turn over property to Plaintiff’s counsel, they are erroneous. To effect an attachment levy, the writ must be delivered to the levying officer with instructions and the required fee. The levying officer then levies upon the property described in the writ or so much thereof as is needed to satisfy the amount secured by the attachment (CCP Sect. 488.020(b)). Nothing in the attachment statutes provides for an order that the defendant deliver property directly to the plaintiff.

4. Plaintiff Did Not Serve the Turnover Orders.

Finally, to be given effect, a turnover order must be personally served on the defendant. (Code of Civ. Proc. Sect. 420.080, subd. (b).) The record does not show that Plaintiff served the Turnover Orders on any defendant. Plaintiff did, however, serve a “Notice of Entry of Order,” which included the Turnover Order as an exhibit. However, Plaintiff served the Notice of Entry of Order by mail only, not personally as the statute requires. (See Notice of Entry of Order, filed June 7, 2018.) Strict compliance with attachment statutes is required. Since Plaintiff never served the Turnover Orders personally, they were never served.

Plaintiff states that both defendants and their counsel were in the court when the Order was signed. That fact, however, is not a substitute for service.

C. Motion for Attorney’s Fees Plaintiff’s Motion for Attorney’s Fees is denied. Plaintiff cites no authority for an award of attorney’s fees for bringing this motion. Further, even if the motion had merit, the request for fees would be denied. The simplest and correct way to levy on deposit accounts is for the levying officer to personally serve the writ of attachment and notice of attachment on the financial institution with which the deposit account or safe deposit box is maintained. (CCP Sect. 488.455.) This process likely would take just a few hours of attorney time. It was unreasonable for Plaintiff to incur $6,765.00 in attorney’s fees to bring this motion when following the mandatory statutory procedure would have been successful, faster and less costly.

D. Motion for Order to Show Cause.

Plaintiff’s alternative Motion for Order to Show Cause Re: Contempt is denied for the same reasons set forth above.

E. Written Order

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.