2010-00076179-CL-CL

Cavalry Portfolio Services vs. Claudia A. Brown

Nature of Proceeding:      Motion for Assignment Order

Filed By:   Zeller, Stephen S.

Plaintiff Calvary Portfolio Services, LLC’s unopposed motion for assignment order is
denied without prejudice.

Pursuant to CCP § 708.510(a), a Court may order the judgment debtor to assign to the
judgment creditor “all or part of a right to payment due or to become due, whether or
not the right is conditioned on future developments, including but not limited to the
following types of payments…(3) Commissions…”

Here, Plaintiff obtained a judgment in the amount of $4,098.36 plus post-judgment
interest against Defendant Claudia Brown.  Plaintiffs seeks assignment of 25% of the
net disposable earnings and commissions that Plaintiff claims Defendant earns as an
independent contractor.

However, the declaration in support of the motion does not demonstrate that the
debtor has any interest in the items sought to be assigned.  Indeed, Plaintiff’s counsel
states that he is “informed and believe[s] that Defendant is a commission based
employee and/or independent contractor” and that he is “informed and believe that the
right to payments by NUSTAR ENERGY CROCKETT to Defendant in the form of
wages, commissions, earnings or independent contractor payments are
assignable.”  (Zeller Decl. ¶¶ 8, 9.)  Declarations on “information and belief” carry no
evidentiary value.  Allegations based on information and belief do not establish
personal knowledge of the facts.  (Bowden v Robinson (1977) 67 Cal.App.3d 705,
719.)  Statements made on information and belief “are hearsay and must be
disregarded…, and [they] are ‘unavailing for any purpose’ whatever…A ruling ‘of the
court is to be based upon facts which may be presented to it, and not upon the belief
of the affiant…Such allegations on ‘information and belief’ furnish no proof of the facts
stated.”  ( Thiebaut v. Blue Cross (1986) 178 Cal.App.3d 1157, 1161 [quoting Star
Motors Imports, Inc. v. Superior Court (1979) 88 Cal.App.3d 201, 204].)  While
exceptions exist, such exceptions apply only where the information at issue is
incapable of positive averment or where expressly permitted by statute.  (City of Santa
Cruz v. Municipal Court (1989) 49 Cal.3d 74, 87.)  Such is not the case here.

The motion therefore is not supported by any proof that the debtor is entitled to the
payments sought to be assigned and is denied without prejudice.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.