Case Number: KC051243 Hearing Date: June 09, 2014 Dept: J

Re: Carmen Salcido v. Sharma Developments, Inc., et al. (KC051243)

MOTION FOR TURNOVER OF DEFENDANT’S INDIVIDUAL RETIREMENT ACCOUNTS

Moving Party: Plaintiff and Judgment Creditor Carmen Salcido

Respondent: Defendants and Judgment Debtors Sanjesh Sharma and Sharma Developments, Inc.

POS: The noticed motion has not been filed with the court since the denial of Plaintiff’s ex parte application on April 11, 2014; the Declaration of Sanjesh P. Sharma filed June 2, 2014, and the Supplemental Declaration of Sanjesh P. Sharma filed June 3, 2014 are untimely and were served by mail contrary to CCP §§ 1005(b) and (c); Reply OK

On December 29, 2008 Plaintiff obtained a stipulated judgment against Defendants in the principal amount of $240,000.00. A writ of execution was issued thereon on December 3, 2013.

On April 11, 2014, counsel for Plaintiff brought an ex parte application for an order directing the turnover of Defendant’s individual retirement accounts held at Oppenheimer Funds in the approximate amount of $115,563.00. The application was opposed by counsel for Defendant and was denied. Counsel for Plaintiff was directed to bring the request by way of a noticed motion on June 9, 2014.

Plaintiff has not filed a noticed motion with the court since April 11, 2014, and there was no order by Judge Dukes that the ex parte application would suffice as a noticed motion. Counsel for Defendant indicates in an Objection to Untimely Motion for Turnover that he was not served with the motion until May 15, 2014, and that it was served by mail. If so, the motion is untimely as the last day to serve it by mail was May 10, 2014 pursuant to CCP § 1005(b). the motion is therefore denied for being served untimely and for not filing the same with the court.

Substantively, Plaintiff brings this motion requesting that the court order Defendant to transfer the funds held in Defendant’s individual retirement accounts, citing CCP § 699.040(a)(1). That section pertains to an order that the judgment debtor transfer “property” to the levying officer. Plaintiff provides no authority to demonstrate that this section applies to intangible items such as an IRA. Further, the funds in the IRA are not in the possession of the judgment debtor, but are being held by a third party.

Procedurally, the issues raised by this motion should have been brought before the court by a timely claim of exemption after the account(s) was levied upon, accompanied by the detailed financial statement required by CCP § 703.530, and a timely Notice of Opposition by the judgment creditor.