ABC MoneyTransactions v. Ha

















Filed 8/13/12 ABC MoneyTransactions v. Ha CA4/3













>NOT TO BE PUBLISHED IN OFFICIAL REPORTS





California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.







IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FOURTH
APPELLATE DISTRICT



DIVISION
THREE




>

ABC MONEYTRANSACTIONS, INC., Plaintiff and Respondent, v. TRUC LY HA, Defendant and Respondent; FRANK BARILLA, Objector and Appellant.

G045493 (Super. Ct. No. 06CC12658) O P I N I O N

Appeal from a
postjudgment order of the Superior Court
of Orange
County, Gregory Munoz, Judge. Affirmed.

Law Offices of Frank
Barilla, Frank Barilla; and Gerlinda L. Baca for Objector and Appellant.

Joey P. Moore for
Plaintiff and Respondent.

No appearance for
Defendant and Respondent.

*
* *



Introduction

ABC
MoneyTransactions, Inc. (ABC), obtained a default judgment against Truc Ly
Ha. ABC located money belonging to Ha in
the client trust account of attorney Frank Barilla; Barilla had represented Tom
Vu in a separate action against Ha, in which Ha was the prevailing party. The trial court granted ABC’s motion for an
order authorizing a levy on Barilla’s client trust account, and Barilla
appeals.

We
affirm. The motion for the levy order
was properly and timely filed and served.
ABC established its right to the money in Barilla’s client trust account
to satisfy its own judgment against Ha.
Barilla’s arguments to the contrary are unavailing.



STATEMENT OF FACTS AND PROCEDURAL HISTORY

In December
2006, ABC sued Ha for breach of contract
(the ABC v. Ha action). In May 2007, ABC obtained a default judgment
against Ha.

Ha
was also a defendant in another action filed in 2007, entitled >Vu v. Ha (the Vu v. Ha action). In the >Vu v. Ha action, Vu asserted causes of
action against Ha, all arising out of a disagreement between them regarding an
alleged real estate partnership.
Although Ha held sole legal title to each of the properties in dispute,
Vu claimed he had a 50 percent interest in the properties. Vu sought $550,000 in damages, cancellation
of the grant deeds identifying Ha as the sole legal owner of each property, and
a declaration of Vu’s interest in each of the properties.

After the >Vu v. Ha action was filed, Vu and Ha
agreed that the net proceeds from the sale of one of the properties in
dispute—$116,059.63—should be held in trust by Vu’s attorney, Lauren M.
Tran. Those funds were later transferred
from Tran’s client trust account to a single client trust account of attorney
Barilla, who substituted in as Vu’s attorney before trial.

In June 2009,
after a bench trial, the trial court
entered judgment in favor of Ha in the Vu
v. Ha action. Barilla sent a
cashier’s check in the amount of $58,029.82—one-half of the total amount held
in his client trust account—to Ha’s attorney, Douglas MacLeith. Barilla’s cover letter instructed MacLeith to
hold the money in MacLeith’s client trust account “until all such legal matters
between our respective clients have been resolved.” Barilla retained the remainder of the
disputed proceeds in his own client trust account. Vu, represented by Barilla, filed a notice of appeal from the judgment in the
Vu v. Ha action; this court dismissed
Vu’s appeal.

In June 2010,
ABC filed a notice of lien in the Vu v.
Ha action, claiming an interest in Ha’s rights to money or property
obtained via the judgment in the Vu v. Ha
action. As part of an effort to enforce
its judgment against Ha, ABC conducted a third party examination of Barilla in
September 2010. Barilla conceded that Ha
had prevailed in the Vu v. Ha action,
but contended that Vu was nevertheless entitled to the funds remaining in
Barilla’s single client trust account.

In May 2011,
ABC filed a motion seeking an order authorizing a levy on Barilla’s single client
trust account, pursuant to Code of Civil Procedure section 700.160 (the Levy
Motion). (All further statutory
references are to the Code of Civil Procedure.)
The Levy Motion was served by mail on May 19, 2011,[1] and the hearing was scheduled for June 16, 2011.

In his written,
filed objection, Barilla contended that the Levy Motion was not timely or
properly served, pursuant to section 1005, subdivision (b). The trial court continued the hearing on the
Levy Motion “to allow Moving Party [(ABC)] an opportunity to file a Reply to
the Opposition which was untimely filed and served.”

After the
hearing, the trial court granted the Levy Motion, and issued an order
authorizing “the levying officer . . . to levy on the single client
trust account of Frank F. Barilla.”
Barilla timely appealed from the court’s postjudgment order.



DISCUSSION

A.

Standard of Review

We review an
order enforcing a judgment for abuse of discretion. (See Lohman
v. Lohman (1946) 29 Cal.2d 144,
148-149.) “A trial court’s exercise of discretion is
abused only when its ruling ‘“‘“exceeds the bounds of reason,
all of the circumstances before it being considered.”’”’ [Citation.]”
(Amtower v. Photon Dynamics, Inc. (2008)
158 Cal.App.4th 1582, 1604.)



B.

The Levy Motion Was Properly and Timely Served.

Barilla argues
the trial court abused its discretion in authorizing the levy because the Levy
Motion was not properly and timely served.
We disagree.

First, Barilla
argues service of the Levy Motion by mail was improper and that “service should
have been made on him personally since he had never generally appeared in the [>Vu v. Ha] action nor was he ever a party
to it as set forth in his declaration in support of the objection.” Barilla cites no authority that the Levy
Motion should have been personally served on him. In this case, Barilla is merely the holder of
money owned by a third party—Ha. All
procedural requirements to obtain the levy order were complied with by
ABC. As explained post, neither Barilla nor
his client, Vu, has any legal interest in the funds in Barilla’s single client
trust account.

Second,
Barilla argues that the Levy Motion was not timely served. “Unless otherwise ordered or specifically
provided by law, all moving and supporting papers shall be served and filed at
least 16 court days before the hearing. . . . However, if the
notice is served by mail, the required 16-day period of notice before the
hearing shall be increased by five calendar days if the place of mailing and
the place of address are within the State of California
. . . .” (§ 1005,
subd. (b).) The initial hearing date was
June 16, 2011; therefore, ABC was required to serve the Levy Motion 16 court
days before the hearing, or by May 24.
Because the Levy Motion was served by mail, the 16-day period was
increased by five calendar days to May 19.
The Levy Motion was filed on May 17 and served by mail on May
19. The Levy Motion was timely served.



C.

Neither Barilla nor Vu Has a Legal Interest in
the Funds in Barilla’s Single Client Trust Account; Those Funds Belong to Ha,
and by Virtue of Its Judgment Against Ha, ABC Was Entitled to Obtain a Levy
Against Those Funds.

Barilla argues
that Vu is entitled to half the monies subject to the Vu v. Ha action and was “never . . . given an
opportunity to assert such a claim.” In
the Vu v. Ha action, Vu claimed a 50
percent interest in the properties which he alleged he jointly owned with Ha,
although Ha held legal title to the properties in her name alone. The trial court’s judgment was in favor of Ha
on all causes of action. Vu was given
the opportunity at trial to assert his claim of a 50 percent interest in the
properties. The funds Barilla holds in
his single client trust account are sales proceeds from one of the properties,
which was in dispute in the Vu v. Ha
action.

Barilla further
argues, “the underlying case never stated in any judgment that monies in
[Barilla’s] trust account belonged to either [ABC] or Ha.” It is true that the default judgment in the >ABC v. Ha action does not purport to
give ABC any right to any specific property of Ha’s, nor did it need to do
so. We must read the complaint in the >Vu v. Ha action, the agreement between
Vu and Ha to hold the sales proceeds of the disputed property until the
resolution of the Vu v. Ha action, the
judgment in the Vu v. Ha action, the
notice of lien filed by ABC in the Vu v.
Ha action, and the Levy Motion together.
All these documents combine to establish Ha’s right to the funds
currently held in Barilla’s single client trust account, and ABC’s right to
satisfy its own judgment with those funds.

Barilla also
argues that his single client trust account is not subject to levy by ABC
because Barilla is entitled to the monies in the account for attorney fees and
costs. He fails to offer any evidence supporting
his argument. To the contrary, Barilla’s
argument on appeal directly conflicts with his earlier deposition testimony
(given at the third party examination) that the monies in the single client
trust account were not intended for attorney fees.



DISPOSITION

The postjudgment order is affirmed. Respondent ABC to recover costs on appeal.







FYBEL,
J.



WE CONCUR:







O’LEARY, P. J.







THOMPSON, J.