Case Number: SC110100 Hearing Date: May 05, 2014 Dept: P

TENTATIVE RULING – DEPT. P

MAY 5, 2014 CALENDAR No: 1

SC110100 — D & K FOODS v. ALEX-IN-THE-KITCHEN, et al.

JUDGMENT DEBTOR’S CLAIM OF EXEMPTION (BANK LEVY)

In this collection action, Plaintiff (the judgment creditor) obtained a judgment against Defendant. The judgment creditor sought to collect on the judgment by levying on Defendant’s/judgment debtor’s bank account. The judgment debtor filed a claim of exemption, declaration in support thereof, and a financial statement, asserting that the funds are exempt under, CCP 704.070 (paid earnings), CCP 706.050, and CCP 706.051. The judgment creditor opposes the claim of exemption.

The debtor claiming a claim of exemption has the burden of proof. CCP 703.570(b).

Sections 706.050 and 706.051 only apply to situations where an earnings withholding order is contested. That is not the case here; the subject claim of exemption pertains to a bank account levy, not a wage garnishment.

Section 704.070 pertains to “paid earnings.” These are “earnings … that were paid to the employee during the 30–day period ending on the date of the levy.” Id., subd. (a)(2). Such earnings “that can be traced into deposit accounts or in the form of cash … are exempt in the following amounts: [¶] (1) All of the paid earnings are exempt if prior to payment to the employee they were subject to [a garnishment]…. [¶] (2) Seventy-five percent of the paid earnings that are levied upon … are exempt if prior to payment to the employee they were not subject to [a garnishment]….” Id., subd. (b)(1), (2). With respect to tracing,
“Subject to any limitation provided in the particular exemption, a fund that is exempt remains exempt to the extent that it can be traced into deposit accounts or in the form of cash….” § 703.080(a). The debtor has the burden of tracing exempt funds. Id., subd. (b).

Here, even assuming for sake of argument that the judgment debtor has established that the funds are exempt from levy because they are needed for his support, he has not properly traced the funds in the subject account, to his earnings; it was his burden to do so.

The claim of exemption is DENIED WITH PREJUDICE. All amounts currently in the levying officer’s , if any, are to be released to the judgment creditor. The court clerk is to transmit a certified copy of this order to the levying officer.

NOTICE

Plaintiff shall give notice of today’s rulings and timely file proof of service thereof, pursuant to CCP 1019.5 and CRC 3.1312.