Filed 9/1/26 Virdi v. Brown CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
MAHEEP VIRDI et al.,
F090235
Plaintiffs and Respondents,
(Super. Ct. No. BCV-22-101851)
v.
KELLY BROWN et al., OPINION
Defendants and Appellants.
THE COURT*
APPEAL from an order of the Superior Court of Kern County. Bernard C.
Barmann, Jr., Judge.
Sean Brown and Kelly Brown, in pro. per, for Defendants and Appellants.
No appearance for Plaintiffs and Respondents.
-ooOoo-
* Before Hill, P. J., Snauffer, J. and DeSantos, J.
Sean Brown and Kelly Brown (collectively, defendants) appeal from a
postjudgment order denying their claims of exemption to levies. Because they have not
demonstrated trial court error, we affirm the order.
PROCEDURAL BACKGROUND
On February 9, 2022, Maheep Virdi, M.D., and Rasham Sandhu, M.D.,
(collectively, plaintiffs) filed a first amended complaint in the Orange County Superior
Court on behalf of Organic Energy, LLC (Organic Energy), a California limited liability
company, against defendants arising from a failed business venture. The first amended
complaint alleges that plaintiffs entered into a partnership with Sean1 to start up Organic
Energy (an organic energy product company) with each of the three partners to contribute
one-third of the capital to fund it. Plaintiffs invested approximately $1.3 million in
Organic Energy, but Sean did not. According to the first amended complaint, Sean
abused his position of trust as an officer and managing partner of Organic Energy by
misappropriating the $1.3 million capital investment and using all the monies for
defendants’ personal benefit, purchasing personal vehicles, paying off personal credit
card debt, and making other expenditures that did not pertain to Organic Energy. Based
on these allegations, the first amended complaint included causes of actions for civil theft
(Pen. Code, § 496), embezzlement, breach of fiduciary duty, aiding and abetting breach
of fiduciary duty, fraud, conversion, breach of contract, intentional interference with
prospective economic relations, and unfair business practices.
The superior court judge transferred the action to Kern County Superior Court by
order dated June 1, 2022. On February 10, 2023, defendants filed their answer to the first
amended complaint. Plaintiffs answered defendants’ cross-complaint on April 19, 2023.
Thereafter, the trial court granted plaintiffs’ “Motion for Terminating Sanctions, or, in the
1 We refer to defendants by their first names for clarity and convenience, because they
share a last name. No disrespect is intended.
2.
Alternative, Issue Evidentiary, and Monetary Sanctions” (boldface & some capitalization
omitted) and ordered defendants’ answers to the first amended complaint be stricken,
their defaults entered, and Sean’s cross-complaint dismissed on September 2, 2023.
The trial court entered judgment against defendants on December 21, 2023, and
ordered them to pay $3,316,125 in actual and treble damages pursuant to Penal Code
section 496, subdivision (c); $25,000 in actual damages; $299,913 in attorney fees;
$7,789.21 in costs; $173,619.59 in prejudgment interest; $2,967.86 in additional interest;
and postjudgment interest at the rate of 10 percent per annum. The abstracts of judgment
were entered on January 17, 2024, and reflect a total judgment in the amount of
$3,825,414.66.
The court issued writs of execution to the sheriffs of Orange, Kern, San
Bernardino, and Los Angeles Counties. On March 18, 2025, the Orange County Sheriff’s
Department served an “Execution-Bank Levy” on JPMorgan Chase Bank, National
Association (Chase Bank). Sean returned a claim of exemption to the sheriff’s
department for the Chase Bank account ending in 5613 on March 27, 2025. He returned
a second claim of exemption to the sheriff’s department for Morgan Stanley individual
retirement accounts (IRAs) ending in 877, 879, and 881 on April 15, 2025. Kelly
returned a claim of exemption to the sheriff’s department for the Morgan Stanley IRA
ending in 878 on April 15, 2025. All three claims of exemption described the properties
as private retirement accounts exempt from levy pursuant to Code of Civil Procedure
section 704.115.2 The boxes indicating the claims were made pursuant to a provision
exempting property to the extent necessary for the support of the judgment debtor or his
spouse or dependents were not checked, and financial statement forms were not attached.
2 Undesignated statutory references are to the Code of Civil Procedure.
3.
Plaintiffs returned notices of opposition to defendants’ claims of exemption to the
sheriff’s department on April 11, 2025,3 and April 29, 2025. Plaintiffs argue in
Attachments 6 to the notices of opposition to Sean’s claims of exemption that amounts
held in self-employed retirement plans or IRAs are exempt from levy only to the extent
necessary to provide for the support of the judgment debtor and the debtor’s spouse and
dependents upon retirement, but defendants’ claims of exemption failed to provide any
financial analysis showing the funds were necessary for support in retirement.4 Plaintiffs
also describe three other IRAs identified by defendants with The Charles Schwab
Corporation (Charles Schwab), in 2024: (1) $242.007.60 in Kelly’s name; (2) a Roth
account in Sean’s name in the amount of $57,895.43; and (3) a second account in Sean’s
name in the amount of $46,960.68.
While the Charles Schwab accounts were initially levied, defendants claimed
exemptions for the accounts, and Charles Schwab released the restrictions on the
accounts when plaintiffs failed to object to the claims of exemption. These accounts are
presumably available to defendants for their retirement needs. However, plaintiffs also
argue that defendants received distributions from those accounts that demonstrate the
accounts are not being used for retirement as follows: withdrawals totaling $24,000 in
2021 and 2022 from Kelly’s account (ending in 8436); a $25,500 withdrawal in 2022
from Sean’s account (ending in 5364); and withdrawals totaling $439,200 in 2018, 2021,
and 2022 from Sean’s account (ending in 9280).
3 Plaintiffs also filed the notice of oppositions to the claims of exemption with the trial
court on April 8, 2025, and April 28, 2025.
4 Plaintiff’s oppositions to Sean’s claims of exemption each have an “Attachment 6” that
are nearly identical and provide a brief factual history and legal argument supported by five
documentary exhibits, including a letter from Charles Schwab relating to four accounts held
there and Internal Revenue Form 1099-Rs showing distributions from those accounts. Plaintiffs’
opposition to Kelly’s claim of exemption does not have “Attachment 6” but does have the same
documents relating to the Charles Schwab accounts and Internal Revenue Form 1099-Rs.
4.
Plaintiffs further argue that defendants failed to meet their burden of proof that the
accounts are exempt because, while defendants described the accounts as IRAs, they
failed to provide documentation that the accounts complied with Internal Revenue
Service (IRS) rules. For example, defendants have several accounts that they described
as IRAs but failed to provide any documentation that proves the nature of the accounts,
compliance with IRS regulations at the inception of multiple accounts in 2003, and
whether the accounts comply with IRS limits on the annual contribution amounts.
Defendants had the burden to provide documentation for each account showing the dates
the accounts were established, amounts contributed each year, yearly balances, and yearly
withdrawals but failed to do so.
Defendants’ initial reply to plaintiffs’ opposition regarding the Chase accounts
primarily addresses plaintiffs’ arguments relating to defendants’ Charles Schwab
accounts and withdrawals from the accounts. Sean submitted a declaration that
explained: the accounts were opened in 2003 and established to secure “a stable financial
future for our family and IRAs were selected based on the advice from our financial
advisors”; the accounts were created and maintained in compliance with IRS regulations
according to Charles Schwab; and Sean had complied with IRS regulations in paying all
taxes and penalties associated with early withdrawals. Sean claimed that the incremental
withdrawals from the accounts were necessary to support his family in 2018 after some
members moved to Orange County from Kern County and expenses exceeded his income
due to a downturn in his business. He stated, “[E]conomic hardship made it necessary to
withdrawal [sic] funds from our retirement accounts to support our family. All the IRA
withdrawals were done incrementally and out of strict necessity.”
Defendants filed an additional reply to plaintiffs’ oppositions addressing Sean’s
claims of exemption to the Chase account and three Morgan Stanley accounts.
Defendants argue that plaintiffs’ opposition to the claims of exemption was not supported
by a statement of facts. Defendants’ further argue that IRAs are not disqualified from
5.
exempt status just because funds are withdrawn and used for nonretirement purposes.
Rather, the totality of the circumstances demonstrated that the retirement accounts were
not established or used to avoid creditors and, therefore, did not lose their exempt status.
Defendants’ argue that the accounts in question were created in 2003 and 2004, 20 years
before their financial difficulties, with the intent to provide for the support and welfare of
their family, held in trust and not controlled by them personally, and withdrawals were
necessary and complied with IRS regulations.
Sean’s declaration asserts that the retirement accounts at Morgan Stanley and
Chase Bank were established to secure a stable financial future for his family and
retirement as a result of advice from advisors at the banks and his certified public
accountant. These accounts were managed by a third party trustee.
Although he does not have personal knowledge as to the formation of the accounts
due to the passage of time, based on Sean’s review of documents and conversations with
individuals at Morgan Stanley, he provided the following information: (1) Kelly’s
account ending in 878 was opened with $2,000 on March 31, 2000, and was valued at
$4,932;5 (2) Sean’s account ending in 879 was opened with $3,000 on March 31, 2000,
and was valued at $3,875; Sean’s account ending in 877 was opened with $1,500 on
February 11, 2000, and was valued at $1,900; and Sean’s account ending in 881 (a
rollover account)6 was opened with $43,225.26 on April 18, 2001, and was valued at
$10,668.
5 The values provided were as of April 20, 2025.
6 A private retirement plan is fully exempt without regard to the debtor’s retirement needs
and retains its exempt status even if rolled over into an individual account or annuity.
Defendants failed to provide any evidence as to the original source of the funds in the rollover
plan except to state in Sean’s declaration that it came from a prior employer. Defendants did not
provide sufficient facts from which one could discern that funds in the Chase account came from
an exempt plan. Thus, Sean has not carried his burden to establish that this account is fully
exempt.
6.
Sean further stated that, based on information and belief, Kelly’s account ending
in 878 received contributions “of about $3,000” after the account was opened and that his
accounts received contributions, but he did not recall the amounts or frequency. Sean
stated that he withdrew $35,000 from the account ending in 881 in 2022 in accordance
with IRS regulations and was making installment payments on the penalties and taxes.
He also withdrew $26,000 from the same account in 2025 and intends to comply with
IRS regulations.
Regarding the account with Chase Bank, Sean stated that the account was opened
in 2016 as a rollover from a previous employer and had a value of $15,681.23 as of
April 11, 2025. On April 11, 2025, he withdrew $14,900 from the account to pay for oral
surgery after bank employees advised him that the funds had not been levied and before
receiving notice the following day of plaintiffs’ objection to the claim of exemption. He
assumed that the account was exempt as a retirement account and believed that the levy
had expired or had been withdrawn based upon his claim of exemption.
Sean’s declaration contains a financial statement (Judicial Council form WG-
007/EJ-185) executed by defendants under penalty of perjury. According to the financial
statement, defendants had no monthly income, had been borrowing money and
withdrawing money from their IRA’s (in an undisclosed amount), had $875 in checking
and savings accounts, and $33,070 in monthly expenses.
In plaintiffs’ response to defendants’ filings, they argue that defendants lack any
credibility because it is “humanly impossible” to pay $33,070 in monthly expenses with
no reported income. Plaintiffs also argue that Sean’s declaration is not supported by any
documentation that the accounts at Morgan Stanley or Chase are retirement accounts or
in compliance with IRS regulations. They argue further that Sean’s withdrawal of the
Chase funds shows fraud and should vitiate a claim of exemption for that account. The
withdrawal history from the Charles Schwab accounts “shows a pattern by [d]fendants to
7.
use and abuse their retirement accounts in an attempt to shield their assets from
[p]laintiffs[’] [j]udgment.”
At the May 29, 2025 hearing, the court provided the parties with a copy of its
tentative ruling. The court described the ruling as going against defendants, but the
record on appeal does not contain a copy of the ruling. Defendants’ counsel argued that
Sean’s declaration established that the accounts were created for retirement, that the
withdrawals were used for living expenses, and that counsel had possession of
documentation to support the declaration but “it was difficult to justify producing [it] up
front” given the age of the accounts. He further argued that defendants had previously
provided plaintiffs documentation that they had borrowed $1.9 million from “good
friends” who “loaned them money in these hard times.” Plaintiffs’ counsel responded
that defendants’ counsel had not addressed the issues in the court’s tentative ruling.
Plaintiffs’ counsel concluded that defendants’ credibility was in issue, especially in light
of their financial statement. Defendants’ counsel advised the court that account
documentation was available and had not been provided because plaintiffs’ opposition
was “suspect.”
The court stated, “The Court considers the matter submitted. The Court is
satisfied that its tentative should be the order of the Court. The Court will adopt the
tentative as its ruling.” The court overruled defendants’ claims of exemption and directed
plaintiffs’ counsel to prepare the order. The court’s order denied defendants’ claims of
exemption as to all accounts held by Morgan Stanley and Chase Bank, prohibited
defendants from transferring any monies from the accounts, and ordered the contents of
the accounts turned over to the sheriff. The written order was filed on June 18, 2025.
Defendants filed a timely notice of appeal on July 31, 2025.
DISCUSSION
Defendants argue that the court’s denial of the claim of exemption as to Kelly’s
account (ending in 878) should be reversed because plaintiffs “did not satisfy the
8.
requirements with factual information for challenging Kelly’s IRA account,” plaintiffs
“neglected to support allegations with statements of facts to support the opposition,”
plaintiffs “did not present facts nor documents to determine if [Kelly’s] Morgan Stanley
IRA was not exempt,” and the court “did not allow the additional documentation that
would support [defendants’] declaration that was offered at the hearing.” Defendants
also argue that substantial evidence shows that Kelly’s account met all requirements to be
exempt from creditors. We affirm the court’s order.
I. Standard of Review and Applicable Law
“California’s Enforcement of Judgments Law (§ 680.010 et seq.) generally
authorizes a creditor holding a ‘money judgment’ to ‘enforce[]’ that judgment against ‘all
property of the judgment debtor’ through a ‘writ of execution.’ (§§ 695.010, subd. (a),
699.710.) However, to implement our Constitution’s command that ‘a certain portion of
the homestead and other property of all heads of families’ be ‘protect[ed], by law, from
forced sale’ (Cal. Const., art. XX, § 1.5), our Legislature has exempted various items of
property from levy by creditors with money judgments. (See §§ 704.010–704.210
[setting forth exemptions]; [citation].) The debtor bears the burden of establishing that a
particular exemption applies. (§ 703.580, subd. (b);[citation].)
“Section 704.115 exempts ‘[a]ll amounts held, controlled, or in process of
distribution by a private retirement plan’ (§ 704.115, subd. (b)), but draws a distinction
between two types of ‘private retirement plans’ and grants each of them a different type
of exemption. [Citation.] Amounts held in ‘[p]rivate retirement plans’ ‘established or
maintained by private employers or employee organizations, such as unions,’ including
‘closely held corporations,’ are fully exempt from levy. (§ 704.115, subds. (a)(1) & (b);
[citation].) By contrast, amounts held in ‘[s]elf-employed retirement plans’ or ‘individual
retirement … accounts’[7] are exempt from levy ‘only to the extent necessary to provide
7 The self-employed retirement plans and individual retirement annuities or accounts must
be those “provided for in the Internal Revenue Code of 1986, as amended, including individual
9.
for the support of the judgment debtor when the judgment debtor retires and for the
support of the spouse and dependents of the judgment debtor.’ (§ 704.115, subds. (a)(3),
(e); [citation].)
“Critically, however, neither type of exemption is available unless the plan or
account holding the funds was, at the time of the levy, ‘principally’ or ‘primarily’
‘designed and used for retirement purposes.’ [Citations.] This baseline requirement of a
bona fide retirement purpose seeks to accommodate the constitutional mandate to
‘safeguard a source of income for retirees at the expense of creditors’ [citation], while at
the same time guarding against the over-shielding of assets should the exemption apply to
‘anything a debtor unilaterally chooses to claim’ or label ‘as intended for retirement
purpose.’ [Citations.]
“In assessing whether a plan or account was principally or primarily designed and
used for retirement purposes, courts are to look at the totality of the circumstances.
[Citations.] Relevant circumstances include (1) the ‘debtor’s subjective intent’ in
designing and using the plan or account [citations]; (2) the ‘chronology’ or timing of the
creation of the plan or account vis-à-vis other events [citation]; (3) the degree of control
the debtor maintains ‘over contributions, management, administration, and use of funds’
in the plan or account [citation]; (4) whether the debtor violated or complied with Internal
Revenue Service (IRS) rules or the plan’s rules in contributing to the plan [citations];
and, if the debtor withdraws money from the plan or account, (5) whether those funds
were used for retirement or instead some other, nonretirement purpose [citations].”
(O’Brien v. AMBS Diagnostics, LLC (2019) 38 Cal.App.5th 553, 559–561, fn. omitted,
first, second, third, sixth, eighth, & tenth bracketed insertions in original (O’Brien).)
retirement accounts qualified under Section 408 or 408A of that code, to the extent the amounts
held in the plans, annuities, or accounts do not exceed the maximum amounts exempt from
federal income taxation under that code.” (§ 704.115, subd. (a)(3).)
10.
Courts may also consider whether the debtor overfunded the plan or violated other
IRS rules in contributing to the plan, the contribution amount, and the debtor’s credibility
and subjective intent, although such additional factors are neither required nor
dispositive. (In re Rucker (9th Cir. 2009) 570 F.3d 1155, 1162.)
“Orders granting or denying a claim of exemption are appealable. (Code Civ.
Proc., § 703.600.) A judgment or order of the trial court is presumed correct, and must be
upheld if it is supported by substantial evidence, no matter how slight it may be.
[Citation.] Further, all evidence must be viewed in the light most favorable to the
prevailing party, and all conflicts in evidence or in inferences must be resolved in favor
of upholding the trial court’s judgment or order. [Citations.] Where sufficiency of the
evidence is questioned, the duty of an appellate court begins and ends with a
determination that there is in the record evidence legally sufficient to support the
judgment or order.” (Schwartzman v. Wilshinsky (1996) 50 Cal.App.4th 619, 626.)
II. Analysis
Defendants argue that the court erred in denying their claim of exemption to
Kelly’s account ending in 8788 because plaintiffs failed to provide documentation to
support their opposition to the claims, the court failed to accept the documents
defendants’ counsel had in his possession during the hearing, and substantial evidence
supported the claim of exemption. Initially, we note that defendants have failed to
present any legal analysis or case authority in support of their arguments.
“[I]t is a fundamental principle of appellate procedure that a trial court judgment is
ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the
basis of the record presented to the appellate court, that the trial court committed an error
that justifies reversal of the judgment.” (Jameson v. Desta (2018) 5 Cal.5th 594, 608–
609.) Thus, “[w]hen an appellant … asserts [a point] but fails to support it with reasoned
8 Defendants’ opening brief asks to only overturn the court’s order as to Kelly’s account.
11.
argument and citations to authority, we treat the point as forfeited.” (Delta Stewardship
Council Cases (2020) 48 Cal.App.5th 1014, 1075.) “The same rules apply to a party
appearing in propria persona as to any other party.” (Flores v. Department of
Corrections & Rehabilitation (2014) 224 Cal.App.4th 199, 205.)
Even if we were inclined to reach defendants’ arguments, we would still reject
their claims. We must reject defendants’ arguments that plaintiffs failed to prove the
accounts were not exempt because it is not plaintiffs that have the burden of proof but
rather, defendants bear the burden of establishing that a particular exemption applies
pursuant to section 703.580, subdivision (b). The record on appeal does not include the
court’s tentative ruling, which it later adopted, so we do not know the court’s reasons for
denying the claim. However, since we must presume the order is correct, we examine the
record to see if the court’s decision is supported by substantial evidence. We note that
Sean’s declaration provides the only evidence that Kelly’s account ending in 878 was
created as an IRA, started with a deposit of $2,000, and included subsequent deposits
totaling $3,000. However, the declaration specifically states that it is based on Sean’s
information and belief as well as statements of financial institution representatives but not
on Sean’s personal knowledge. Additionally, while Sean states that the funds in the
account are held for retirement, he did not elaborate on this factual assertion nor attach
any documents to support the claim. While defendants refer to the accounts at issue as
IRA accounts, there is no evidence provided that the accounts were IRAs as opposed to
savings or other types of financial accounts. Defendants provided no account
documentation to prove the nature of the accounts or to establish the amounts deposited
were within annual IRS contribution limitation.
Furthermore, Sean’s declaration that the accounts were intended as IRA’s, even if
sufficient to prove they were set up for retirement purposes, fails to address whether the
accounts continued to be used for retirement purposes after they were opened. (O’Brien,
supra, 38 Cal.App.5th at p. 560 [exemption not available unless at the time of levy the
12.
account was holding funds “ ‘principally’ ” or “ ‘primarily’ ” designed and used for
retirement purposes].) Without historical documentation as to the contributions and
withdrawals of these accounts, as well as all defendants’ identified and unidentified
retirement accounts, defendants failed to provide evidence that the accounts qualify for
exemption from levy.
To prove defendants’ claims of exemption, they were required to provide evidence
that the accounts were, “at the time of the levy, ‘principally’ or ‘primarily’ ‘designed and
used for retirement purposes.’ ” (O’Brien, supra, 38 Cal.App.5th at p. 560.) The limited
information provided by Sean’s declaration fails to provide evidence of factors relevant
to inquiry: specifically, whether the debtor violated or complied with IRS rules or the
plan’s rules in contributing to the plan and if funds were withdrawn from the plan,
whether they were used for retirement or some other purpose. (See id. at p. 561.)
Defendants argue that defense counsel had documentation at the hearing to
support Sean’s declaration, but the court refused to review it. First, “[a] trial court has
broad discretion under rule 3.1300(d) of the California Rules of Court to refuse to
consider papers served and filed beyond the deadline without a prior court order finding
good cause for late submission.” (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755,
765.) To the extent that defendants claim their counsel’s oral statements regarding the
documents were part of their claim of exemption, submission of the documents during the
hearing was exceedingly untimely, and plaintiffs’ counsel, who appeared by video, would
not have had access to any new documentary submissions.
More importantly, defense counsel never addressed the content, source, or
importance of the documents, and the record fails to show that the documents were even
properly authenticated. Evidence received at a law and motion hearing must be by
declaration, and documents require a declaration of authentication to prove they are
reliable and admissible. Otherwise, the documents are simply inadmissible hearsay.
(Code Civ. Proc, §§ 2015.5, 2009; Cal. Rules of Court, rule 3.1306(a); Evid. Code,
13.
§§ 250, 702, 1270 et seq., 1401, subd. (b); Kulshrestha v. First Union Commercial Corp.
(2004) 33 Cal.4th 601, 608–610; In re Marriage of Reese & Guy (1999) 73 Cal.App.4th
1214, 1222, disapproved on another ground in Laborde v. Aronson (2001)
92 Cal.App.4th 459, 466; Stockinger v. Feather River Community College (2003)
111 Cal.App.4th 1014, 1025–1027, disapproved on another ground Regents of the
University of California (2018) 4 Cal.5th 607, 634, fn. 7.) Defendants desired to
introduce oral testimony in support of the documents, and they were required to seek
permission three days before the hearing (Cal. Rules of Court, rule 3.1306(b)), but the
record shows this was not done.
Therefore, we find no error in the trial court’s failure to review defendants’
documents during the hearing.
Additionally, the trial court could have discounted Sean’s declaration and believed
that he lacked credibility, as plaintiffs argue. Sean had withdrawn substantially all of the
funds in the account ending in 881 before the time for plaintiffs to oppose it had expired.
Although Sean claimed that he believed the funds were no longer subject to levy when
withdrawn, the court could have disbelieved him and found that his deception cast doubt
on the truth of other matters in his declaration. Additionally, defendants claimed that
they were subsisting on $1.9 million of undocumented personal loans from friends but
failed to include the loans in the list of debts as part of the financial statement they
submitted to the court, again casting doubt on the veracity of Sean’s declaration. The
task of assessing the credibility of witnesses lies with the trier of fact. (Shamblin v.
Brattain (1988) 44 Cal.3d 474, 479.) We do not reweigh the evidence or substitute our
own deductions for those of the trial court. (Lenk v. Total–Western, Inc. (2001)
89 Cal.App.4th 959, 968; Rupf v.Yan (2000) 85 Cal.App.4th 411, 429–430, fn. 5.)
Apart from whether the levied accounts were designed and used for retirement
purposes, section 704.115 exempts IRAs from collection “only to the extent necessary to
provide for the support of the judgment debtor when the judgment debtor retires and for
14.
the support of the spouse and dependents of the judgment debtor, taking into account all
resources that are likely to be available for the support of the judgment debtor when the
judgment debtor retires.” (§ 704.115, subd. (e)(1); accord, O’Brien, supra,
38 Cal.App.5th at p. 560.) Defendants had to demonstrate the accounts were necessary to
provide for their support and the support of their dependents upon retirement.
(§ 703.580, subds. (b)(c).) Although defendants provided information that they had
$33,070 in monthly expenses and no income, they failed to address their future financial
prospects and whether they would have resources in the future to support themselves in
retirement given the length of time until their retirement. (In re Vigghiany (Bankr.
S.D.Cal. 1987) 74 B.R. 61, 63 [court required to consider all resources likely to be
available for support of the debtor at retirement, such as social security payments and
other income assets].) The court could have also concluded, in the absence of analysis by
defendants, that the approximately $347,418.44 in the four Charles Schwab accounts that
were not levied would be sufficient to meet their future retirement needs and that their
living expenses of $33,070 a month indicates they possessed undisclosed assets.
Therefore, we conclude the court’s denial of defendants’ claims of exemption is
supported by substantial evidence.
DISPOSITION
The court’s May 29, 2025 ruling and June 18, 2025 written order denying
defendants’ claims of exemption are affirmed. The parties are to bear their own costs on
appeal.9
9 Because plaintiffs did not file a respondents’ brief, we decline to award them costs as the
prevailing parties. (Cal. Rules of Court, rule 8.278(a)(5).)
15.