Case Number: KC069344 Hearing Date: October 01, 2018 Dept: J

Re: RJ&J Investments, LLC v. Nexus Energy Power Group, Inc. (KC069344)

MOTION FOR ISSUANCE OF EARNINGS WITHHOLDING ORDER AGAINST THE EARNINGS OF THE JUDGMENT DEBTOR’S SPOUSE

Moving Party: Judgment Creditor RJ&J Investments, LLC

Respondent: No timely opposition filed (due 9/18/18)

POS: Moving OK

Plaintiff is a broker which procures and arranges for delivery of industrial grade sand to its customers. Plaintiff claims that it engaged Defendant Nexus Energy Power Group Inc. to supply 10,500 tons of 40/70 Northern White Sand to Haliburton Energy Services but that Nexus failed to deliver the product or return plaintiff’s payment to it. The complaint was filed on 5/26/17. On 6/15/17, Nexus Energy Power Group, Inc. filed its cross-complaint, asserting causes of action therein against Cross-Defendants TRJ Directional Drilling Service, LLC, Scott H. Johnson, David Resendez and Roes 1-10 for:

Breach of Oral Contract
Conversion
Indebitatus Assumpsit

The First Amended Complaint, filed 10/6/17, asserts causes of action against Defendants Nexus Energy Power Group, Inc. dba American Nature Produce Group, Zhe Min Wang aka Zhemin Wang aka Benjamin Wang (“Wang”), Bestco Group Inc. (“Bestco”) and Does 1-100 for:

Breach of Contract;
Money Had and Received;
Avoidance of Fraudulent Transfer—Insolvency (Civil Code § 3439.05);
Avoidance of Fraudulent Transfer (Civil Code § 3439.04(a)(1));
Avoidance of Fraudulent Transfer (Civil Code § 3439.04(a)(2)(A));
Avoidance of Fraudulent Transfer (Civil Code § 3439.04(a)(2)(B));
Constructive Trust;
Avoidance of Fraudulent Transfer—Insolvency (Civil Code § 3439.05);
Avoidance of Fraudulent Transfer (Civil Code § 3439.04(a)(2)(ab)); and
Constructive Trust

On 11/17/17, Wang’s and Bestco’s defaults were entered. On 12/18/17, the court granted TRJ’s and Johnson’s motion to quash service of summons and cross-complaint and ordered Nexus’ answer and cross-complaint stricken. On 1/31/18, a default judgment was entered against Nexus, Wang and Bestco.

Plaintiff/Judgment Creditor RJ&J Investments, LLC (“Judgment Creditor”) moves the court for an order, per CCP §§ 706.100 et seq. and 706.109 and Family Code § 910(a), issuing an Earnings Withholding Order against the earnings of Judy Tzuoo (“Tzuoo”), the spouse of the judgment debtor, Zhe Min Wang aka Zhemin Wang aka Benjamin Wang (“Wang”).

“An earnings withholding order may not be issued against the earnings of the spouse of the judgment debtor except by court order upon noticed motion.” CCP § 706.109.

“Except as otherwise expressly provided by statute, the community estate is liable for a debt incurred by either spouse before or during marriage, regardless of which spouse has the management and control of the property and regardless of whether one or both spouses are parties to the debt or to a judgment for the debt.” Family Code § 910(a). “Community property is subject to enforcement of a money judgment as provided in the Family Code.” CCP § 695.020(a).

“[E]arnings of either the husband or the wife acquired during the marriage constitute community property. (Fam.Code, § 760; Martin v. Southern Pacific Co. (1900) 130 Cal. 285, 286, see, also 11 Witkin, Summary of Cal. Law (9th ed. 1990) Community Property, § 17, p. 387.).” State Bd. of Equalization v. Woo (2000) 82 Cal.App.4th 481, 483.

On 1/31/18, a default judgment was entered in favor of the Judgment Creditor as against Nexus Energy Power Group, Inc. for the sum of $708,976.91, and against Wang for the sum of $547,850.37 and as to Bestco Group, Inc. for the sum of $21,216.18. (Smith Decl., ¶ 5, Exh. 1). The judgment is not joint and several. To date, the judgment remains unsatisfied. (Id., ¶ 6).

Tzuoo is Wang’s spouse. (Id., ¶ 7). Judgment Creditor’s counsel, Scott Smith, attests that this fact was confirmed and admitted during Tzuoo’s and Wang’s testimony at their respective examinations which he conducted on 4/12/18 and 5/17/18 (Tzuoo) and on 4/12/18 and 5/25/18 (Wang), and is supported by documents produced by Wang and Tzuoo at their respective examinations, including but not limited to, their Joint U.S. Individual Income Tax Returns (Form 1040). (Id., Exh. 2). Wang and Tzuoo are also identified as spouses in their Voluntary Petition for Individuals Filing for Bankruptcy filed 2/6/17. (Id., ¶ 9, Exh. 4).

Tzuoo testified at her 4/12/18 exam that she is currently employed at Test Rite Products Corporation and provided Smith with a copy of her Earnings Statement. (Id., ¶¶ 7 & 8, Exhs. 2 & 3).

No timely opposition has been filed disputing any of Judgment Creditor’s contentions. The motion, then, is granted.