2008-00024735-CL-CL

ACA Receivables Co LLC vs. Damon G Kendrix

Nature of Proceeding: Motion for an Earnings Withholding Order

Filed By: Love, Franklin J.

Plaintiff Credilogical Systems, LLC, (“Plaintiff”) as assignee of Judgment Creditor ACA
Receivables Co., LLC, previously filed a “Motion for an Earnings Withholding Order”
against Denise Kendrix, Spouse of Judgment Debtor Damon Kendrix. The matter
came on for hearing on May 2, 2014. The Court’s tentative ruling of May 1, 2014,
tentatively denied the motion on two grounds: (1) Plaintiff’s moving papers made no showing as to when the subject debt was incurred, and (2) Plaintiff’s’ moving papers
failed to show, pursuant to Code of Civil Procedure § 706.102, that “a writ of execution
has been issue to the county where the judgment debtor’s employer is to be served . . .
” Plaintiff’s counsel appeared at the hearing and requested that the matter be
continued so as to allow him to file supplemental briefing. The continuance was
granted, and a hearing was set for June 11, 2014.

The Court has considered Plaintiff’s supplemental briefing and original briefing, and
orders that Plaintiff’s Motion for Earnings Withholding Order is DENIED WITHOUT
PREJUDICE.

Plaintiff’s moving papers direct the Court to Code of Civil Procedure § 706.109, which
provides: “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.” Yet
neither this code section nor Plaintiff’s moving papers reveal what standard the Court
should apply in analyzing such “noticed motion.”

However, the Law Revision Commission Comment for Code of Civil Procedure §
706.109 states, “Section 706.109 recognizes that despite the general rule that
community property is liable for debts of a spouse, community property earnings are
unique and may not be liable in some situations. See, e.g., Civil Code § 5120.110
(liability of community property). For this reason an earnings withholding order against
the spouse of the judgment debtor may only be issued upon noticed motion.” (Legis.
Com. Com., Code Civ. Proc. § 706.109 (italics added).)

Civil Code § 5120.110 was repealed in 1994, but Family Code § 911 “continues former
Civil Code § 5120.110(b) without substantive change,” according to the Law Revision
Commission Comments to Family Code § 911. Family Code § 911 provides, in its
entirety:

“(a) The earnings of a married person during marriage are not liable for a debt incurred
by the person’s spouse before marriage. After the earnings of the married person are
paid, they remain not liable so long as they are held in a deposit account in which the
person’s spouse has no right of withdrawal and are uncommingled with other property
in the community estate, except property insignificant in amount. (b) As used in this
section: (1) “Deposit account” has the meaning prescribed in paragraph (29) of
subdivision (a) of Section 9102 of the Commercial Code. (2) “Earnings” means
compensation for personal services performed, whether as an employee or otherwise.”

(Family Code § 911.)

Here, even if Plaintiff is correct that a Motion for Earnings Witholding Order is the
proper mechanism by which a writ of execution can issue as against Denise Kendrix
(Pl.’s Supp. Ps & As at 3), which he has not shown by citation to authorities stating as
much, Plaintiff has not made the requisite showing under Family Code § 911.

Plaintiff argues that its evidence proves that Denise Kendrix and the judgment debtor
were married “as of May, 2005” and that the “underlying debt was entered into in February, 2007.” (Pl.’s Supp. Ps & As at 3; Exh. 1 to Supp. Declaration of Franklin J.
Love.) However, the documents supposedly showing that the parties were married as
of “May, 2005,” are unauthenticated hearsay documents of unknown origin. (Decl. of
John Welsome, stating that “[a]s part of my research I was able to access the record of
Foreclosure proceedings relating to Judgment Debtor,” and attaching as “Exhibit 1” a
one-page letter from Western Progressive LLC addressed to “Denise Kendrix and
Damon Kendrix” and dated September 19, 2013, and an undated one-page Notice of
Default referring to Damon and Denise Kendrix as “Wife and Husband.”) Neither
document was the subject of a request for judicial notice and neither appears judicially
noticeable, neither document was properly authenticated by Mr. Welsome’s vague
declaration as to the source of the documents, and both documents constitute hearsay
because they are offered for the truth of matters asserted therein.

In sum, Plaintiff’s proffered “evidence” does not suffice to show that the subject debt
was incurred after Denise Kendrix married the judgment debtor. Accordingly, Plaintiff
has not shown, on proper evidence, that Family Code § 911 permits Denise Kendrix’s
earnings to be liable “for a debt incurred by” Denise Kendrix’s spouse during the
marriage. (Code of Civil Procedure § 706.109; Family Code § 911.)

Accordingly, Plaintiff’s motion is DENIED WITHOUT PREJUDICE.

Wrong Address in Notice of Motion

The Court notes that moving party has indicated the incorrect address in its notice of
motion. The correct address for Department 54 of the Sacramento County Superior
Court is 800 9th Street, Sacramento, California 95814. Moving party shall notify
responding party(ies) immediately.

This minute order is effective immediately. Plaintiff’s counsel to provide notice to all
parties. (Code Civ. Proc. § 1019.5; CRC Rule 3.1312.)