Case Number: BC483276 Hearing Date: June 13, 2014 Dept: 58

JUDGE ROLF M. TREU
DEPARTMENT 58
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Hearing Date: Friday, June 13, 2014
Calendar No: 7
Case Name: David S. Karton, ALC v. Seals
Case No.: BC483276
Motion: Motion for Order Imposing Liability
Moving Party: Plaintiff David S. Karton, ALC
Responding Party: Non-Party Merrill Lynch, Pierce, Fenner & Smith Incorporated
Notice: Untimely Opposition

Tentative Ruling: Motion for order imposing liability is granted since opposition filed grossly untimely.
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Background and Procedural History –
On 4/23/12, Plaintiff David S. Karton, ALC filed this action against Defendant John Keith Seals arising out of the alleged failure to pay for legal services provided to Defendant by Plaintiff. Plaintiff asserts causes of action for (1) breach of written contract, (2) indebtedness assumpsit, (3) accounts stated, (4) open book account, (5) quantum meruit, (6) foreclosure of lien, (7) conversion, (8) money had and received, (9) actual fraudulent transfer, (10) constructive fraudulent transfer, and (11) declaratory relief.

On 6/4/12, Plaintiff filed a notice of stay on the ground that Defendant had filed a voluntary petition for Chapter 7 bankruptcy on 6/1/12. On 9/24/12, Plaintiff filed a notice of entry of order granting Plaintiff’s motion for relief from the bankruptcy stay.

The Court dismissed this action on 11/5/12; on 11/28/12, pursuant to the parties’ stipulation, the Court set aside the dismissal. On 1/10/13, Defendant failed to appear at the CMC: the Court set an OSC re: sanctions for failure to appear and for failure to timely file a CMC statement for 2/11/13. On 2/11/13, Defendant failed to appear: the Court awarded attorney fees and costs in favor of Plaintiff’s counsel in the amount of $459 against Defendant and his counsel of record, jointly and severally. The Court set an OSC re: sanctions for failure to appear and failure to comply with the Court’s 1/10/13 order for 3/22/13.

On 2/10/13, the Court sustained Plaintiff’s demurrer to the 2nd through 6th affirmative defenses asserted in Defendant’s answer with 10 days’ leave to amend; no amended answer was timely filed.

On 3/22/13, the Court granted Plaintiff’s motions to compel responses to form interrogatories, special interrogatories, and requests for production of documents without objection, with responses to be served within 20 days; deemed requests for admissions admitted; and awarded sanctions in Plaintiff’s favor in the total reduced amount of $1,251.88.

On 4/15/13, the Court granted Plaintiff’s ex parte application to set the hearing on a motion for further monetary sanctions and for an OSC re: terminating sanctions for 4/29/13. On 4/29/13, the Court granted Plaintiff’s motion for terminating sanctions. On 7/13/13, the Court entered default judgment in favor of Plaintiff.

Motion for Order Imposing Liability –
On 4/2/14, Plaintiff filed a motion seeking to impose liability against Merrill Lynch, Pierce, Fenner & Smith Incorporated (“Merrill Lynch”) pursuant to CCP § 701.020. Plaintiff submits that it had a lien on Defendant’s IRA account with Merrill Lynch (David Decl. ¶¶ 3-4, Exs. 2-3), that Merrill Lynch would not honor a levy without a court order which was obtained despite Plaintiff disagreeing with its necessity (id. ¶ 5, Exs. 4-6), and that a writ of execution was levied on 1/27/14 (id. ¶ 6, Ex. 7). However, Plaintiff discovered that less than the full amount of the IRA was turned over (see id. ¶¶ 7-8, 10, Exs. 8-9, 11), subsequently being informed by Merrill Lynch that a portion was remitted to taxing authorities (id. ¶¶ 9, 13, Exs. 10, 13). Plaintiff submits that Defendant’s IRA held $223,254.57, of which $198,696.56 was turned over to the Sheriff and $24,558.01 was remitted to taxing authorities. Id. ¶ 14.

CCP § 701.020(a) imposes liability against a third person who is required to deliver property or make payments to the levying officer but “fails or refuses without good cause to do so . . . .” Plaintiff requests liability on the amount of the payments required to be made (CCP § 701.020(a)(1)) and interest from the time that the partial payment was turned over to the Sheriff (David Decl. ¶ 14). Plaintiff also requests the Court exercise its discretion to award costs and reasonable attorney’s fees incurred in establishing Merrill Lynch’s liability. CCP § 701.020(c).

Untimely Opposition –

The Court notes that Merrily Lynch’s opposition was filed and served on 6/10/14; however, it was due to be filed and served by 6/2/14 pursuant to CCP § 1005(b). Therefore, the opposition is grossly untimely and Plaintiff has notably not filed a substantive reply. The Court therefore does not consider the untimely filed opposition, (CRC 3.1300(d)) finds moving party has established a prima facie case for relief and grants the motion.