GE Capital Corp. v. Huxley, 2008 WL 224372 (Cal.App. 2 Dist., Jan. 29, 2008) (Unpublished)
Not Officially Published
California Rules of Court, rule 8.1115, restricts citation of unpublished opinions in California courts.
Court of Appeal, Second District, Division 1, California.
GENERAL ELECTRIC CAPITAL CORPORATION, Plaintiff and Respondent,
Craig HUXLEY, Defendant and Appellant.
(Los Angeles County Super. Ct. No. EC037217).
Jan. 29, 2008.
APPEAL from an order of the Superior Court of Los Angeles County, Laura A. Matz, Judge. Affirmed.
Law Offices of Irwin Chasalow and Irwin Chasalow for Defendant and Appellant.
Solomon, Grindle, Silverman & Spinella and Stephen M. Spinella for Plaintiff and Respondent.
MALLANO, Acting P.J.
*1 Defendant Craig Huxley appeals from an order granting the motion of plaintiff judgment creditor General Electric Capital Corporation (GECC) for assignment of royalties. Huxley contends that the motion was erroneously granted. We affirm.
On June 21, 2006, GECC filed a motion for assignment of royalties under Code of Civil Procedure section 708.510, subdivisions (a)(4) and (5) (unless otherwise specified, future section references are to the Code of Civil Procedure).FN1 As part of the motion, GECC set forth evidence to establish that it had a judgment against Huxley on which over $4 million was due, that Huxley owned music copyrights on which he was entitled to receive royalties, that GECC had served a writ of execution on the American Society of Composers, Authors and Publishers (ASCAP) with instructions to levy on Huxley's present and future royalties, that Huxley had objected to the levy, and that ASCAP had stated it would hold Huxley's royalties in abeyance until the dispute between GECC and Huxley was resolved.
FN1. Section 708.510 provides in pertinent part:
“(a) Except as otherwise provided by law, upon application of the judgment creditor on noticed motion, the court may order the judgment debtor to assign to the judgment creditor or to a receiver appointed pursuant to Article 7 (commencing with Section 708.610) 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:
“(1) Wages due from the federal government that are not subject to withholding under an earnings withholding order.
“(5) Payments due from a patent or copyright.
“(6) Insurance policy loan value.
“(b) The notice of the motion shall be served on the judgment debtor. Service shall be made personally or by mail.
“(c) Subject to subdivisions (d), (e), and (f), in determining whether to order an assignment or the amount of an assignment pursuant to subdivision (a), the court may take into consideration all relevant factors, including the following:
“(1) The reasonable requirements of a judgment debtor who is a natural person and of persons supported in whole or in part by the judgment debtor.
“(2) Payments the judgment debtor is required to make or that are deducted in satisfaction of other judgments and wage assignments, including earnings assignment orders for support.
“(3) The amount remaining due on the money judgment.
“(4) The amount being or to be received in satisfaction of the right to payment that may be assigned. [¶] ... [¶]
“(f) Where a specific amount of the payment or payments to be assigned is exempt by another statutory provision, the amount of the payment or payments to be assigned pursuant to subdivision (a) shall not exceed the amount by which the payment or payments exceed the exempt amount.”
In response, Huxley argued that the royalties constituted “paid earnings,” on which he was entitled to the 75 percent exemption from levy under section 704.070, subdivision (b)(2).FN2 In a declaration addressed to the provisions ofsection 708.510, subdivisions (c) and (f), Huxley stated that he is subject to a spousal support order of $6,000 per month, that ASCAP has advised him that his royalty payments are subject to a 25 percent lien from the California Franchise Tax Board on an obligation of $34,285.09, that his annual royalties have been slightly less than $30,000 in recent years, and that there is $4,311,789.62 remaining due on the judgment in favor of GECC. In his points and authorities, Huxley also asserted that he “is struggling to avoid bankruptcy.”
FN2. Section 704.070, subdivision (a)(2), defines “ ‘Paid earnings' “ as earnings “paid to the employee during the 30-day period ending on the date of the levy.” Subdivision (b)(2) of the statute exempts 75 percent of paid earnings from execution.
At the hearing on GECC's motion, the court acknowledged Huxley's position that 25 percent of his royalties were exempt from execution by GECC because that percentage was subject to levy by the Franchise Tax Board but rejected Huxley's position that all of his royalties should be treated like paid earnings. As to the “relevant factors” of section 708.510, subdivision (c), the court stated that, assuming Huxley has “the burden to prove to me how much money [he] makes, what his expenses are, ... how much he needs, [and] why he needs this money,” Huxley's “conclusory declaration does not tell me virtually 99 percent of what I need to know.”
After taking the matter under submission, the court ruled by minute order dated September 11, 2006, in pertinent part as follows: “Motion for order of assignment of royalties is granted pursuant to Code of Civil Procedure section708.510(a)(4).... To the extent [Huxley] is claiming an exemption based upon the needs of the judgment debtor, [Huxley] has failed to present evidence concerning the reasonable requirements of the judgment debtor and ... persons supported in whole or in part by the judgment debtor, other payments the judgment debtor is required to make, etc.”
*2 Huxley first contends that the trial court “erred by failing to perceive or acknowledge evidence of Huxley's financial need.” Although Huxley's declaration as to the existence of a spousal support obligation and his debt to the Franchise Tax Board constituted “evidence,” his assertion that he was struggling to avoid bankruptcy had no evidentiary value because it appeared solely in his unverified points and authorities. (See Evid.Code, §§ 140, 702.) More important, the court's ruling did not evince an unawareness of the evidence that Huxley had presented. Rather, it was a lack of evidence that rendered it impossible for the court to determine how Huxley's “reasonable requirements” (§ 708.510, subd. (c)(1)) should affect the determination of “whether to order an assignment or the amount of an assignment” (§ 708.510, subd. (c)). Thus, regardless of the standard of review to be applied to the trial court's ruling, Huxley's claim of error is without merit.
Huxley further contends that section 708.510 is unconstitutional as applied to him because, “in the common vernacular,” ASCAP royalties, which “comprise the only mechanism whereby a composer, like Huxley, can earn income,” should be considered “earnings,” and therefore subject to exemptions applicable to earnings. Thus, according to Huxley, “an Assignment Order for a composer's ASCAP royalties either deprives him of his ongoing livelihood or creates an involuntary servitude in violation of the Thirteenth Amendment of the U.S. Constitution.” Huxley's argument, which is devoid of authority other than references to the applicable statutes and the Thirteenth Amendment, is better suited for the Legislature. He has not established a viable claim that he was deprived of constitutional rights.
The order under review is affirmed.
We concur: VOGEL and JACKSON,FN* JJ.
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