Renda v. Nevarez
Filed 10/26/10 Renda v. Nevarez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL,
FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MARIO RENDA,
Plaintiff
and Respondent,
v.
ANA LUISA NEVAREZ,
Defendant
and Appellant.
D055444
(Super. Ct. No.
GIC798346)
APPEAL
from an order of the Superior Court
of San Diego
County, Joan M. Lewis, Judge.
Affirmed.
This
appeal arises from a postjudgment turnover order pursuant to Code of Civil
Procedure section 708.205.[1] Defendant Ana Luisa Nevarez[2]
contends that the turnover order should be reversed because the trial court did
not grant a hearing regarding the turnover order. Nevarez also contends the trial court abused
its discretion in granting the turnover order.
We
conclude that section 708.205 does not require that a trial court hold a
hearing to determine any possible exemptions before issuing a turnover
order. Rather, section 708.205 permits
the trial court, at the conclusion of an examination, to order the turnover of
the debtor's nonexempt property to satisfy the money judgment. (§ 708.205, subd. (a).)
Here,
the trial court issued two turnover orders after several examination hearings
regarding Nevarez's property. The first
turnover order directed Nevarez to make payments to Renda from the mining
operation at Rancho Ontiveros. The other
turnover order directed Dessarrollo Roca Azu (DRA) to make payments to Renda
from the mining operation at Rancho Ontiveros.[3]
On appeal, Nevarez
elected to proceed without a record of the oral
proceedings from the trial court. Because Nevarez has elected to proceed with a
limited record which includes only the trial court's minute orders, Nevarez
cannot affirmatively show that she ever claimed that her property was exempt,
that she was denied an opportunity to claim exemption, or that the trial court
abused its discretion by signing the turnover orders. (See, e.g., Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
Accordingly,
we affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Renda
sued Nevarez for breach of contract. The trial court entered a judgment against
Nevarez on November 17, 2006.
On
February 13, 2009, the
Honorable Joan M. Lewis presided over Renda's debtor examination of
Nevarez. Judge Lewis ultimately found the
property examined (Nevarez's interest in the Rancho Ontiveros mining operation)
was not exempt from enforcement of a money judgment.
On
February 20, 2009, Renda
again examined Nevarez. At this
examination, the court admonished Nevarez to "immediately make efforts to
obtain bank documents as requested by the plaintiff." Because the examination could not conclude
without the requested documents, Judge Lewis continued the examination to May 1, 2009.
On
May 1, 2009, Renda
reexamined Nevarez. Renda asserted that
Nevarez had still failed to produce all of the requested documents and
requested the court hold Nevarez in contempt.
The court denied the request, but set an order to show cause (OSC)
hearing re: contempt, for July 13,
2009.
At
the OSC hearing, the trial court found the papers seeking to hold Nevarez in
contempt inadequate and did not proceed with the OSC. With the court in recess, Judge Lewis
conferred with counsel in chambers for 37 minutes. When the court reconvened, Judge Lewis
summarized the discussions in chambers, signed the two turnover orders without
prejudice, denied a defense request for continuance, and denied the OSC re:
contempt. The first turnover order
directed Nevarez to make payments to Renda from the mining operation at Rancho
Ontiveros. The other turnover order
directed DRA to make payments to Renda from the mining operation at Rancho
Ontiveros. Renda's counsel served
Nevarez with both orders. Judge Lewis
then continued the debtor examination to September 18, 2009.
Nevarez filed a notice of appeal on September 11, 2009.
We
note that Nevarez did not designate the reporter's transcript for appeal and
therefore we must decide this case without the benefit of the summary of the
discussions in chambers, the substance of the debtor examinations, and any
reasoning the court might have stated on the record for its decision to sign
the turnover orders.
DISCUSSION
Nevarez contends that she was
entitled to a hearing prior to the issuance of the turnover order. Nevarez implies, but does not specifically
argue,[4]
that
the issuance of the turnover order without a hearing violated her due process
rights because she did not have an opportunity to contest the exemption status
of the property sought to be turned over.
Nevarez also implies that the trial court abused its discretion because
it signed the turnover order without a formal
hearing.
We conclude Nevarez's appeal lacks
merit because section 708.205 authorizes the court to order the debtor to turn
over nonexempt property, except where a third party claims an interest in the
property adverse to the debtor or denies the debt. (§ 708.205, subd. (b).) Because section 708.205 does not bar the
debtor from asserting that her property is exempt after a turnover order has
been issued and because Nevarez had ample opportunity to assert her property
was exempt before the order's issuance, the turnover order does not violate her
due process rights.
Additionally, Nevarez cannot meet her burden of establishing that the
trial court abused its discretion because the limited record designated by
Nevarez does not include the trial court's oral proceedings, and therefore we
have no record on appeal from which we can conclude that the trial court abused
its discretion.
A.
Pursuant to section 708.110, a
judgment creditor may apply to the court for an order requiring the judgment
debtor to appear for examination regarding the debtor's assets. The purpose of the examination is to identify
the judgment debtor's nonexempt property from which the creditor can satisfy
his money judgment. (See, e.g., §§ 708.110, 708.205.) Section 708.110 provides the mechanism (an
examination) from which the court and creditor can identify nonexempt
property.
Section 708.205 provides the vehicle
by which the court can isolate the property identified for money judgment
satisfaction.
That section provides:
"(a) Except as provided in
subdivision (b), at the conclusion of a proceeding pursuant to this article,
the court may order the judgment debtor's interest in the property in the possession or under the control
of the judgment debtor or the third person or a debt owed by the third person
to the judgment debtor to be applied toward the satisfaction of the money
judgment if the property is not exempt from enforcement of a money judgment.
Such an order creates a lien on the property or debt.
"(b) If a third person examined pursuant to Section 708.120 claims an
interest in the property adverse to the judgment debtor or denies the debt and
the court does not determine the matter as provided in subdivision (a) of
Section 708.180, the court may not order the property or debt to be applied
toward the satisfaction of the money judgment but may make an order pursuant to
subdivision (c) or (d) of Section 708.180 forbidding transfer or payment to the
extent authorized by that section."[5] (Italics added.)
Section 703.100 sets out the time frame for determination
of exempt property and the circumstances to be considered by the court. Specifically, section 703.100, subdivision
(a) requires that the court determine exemption status at the earliest of: (1) the time of levy, (2) the beginning of
court proceedings on money judgment satisfaction, or (3) the time a lien is
created. However,
judgment debtors may "file a claim of exemption at any time after
receiving notice of the examination" and judgment debtors "are not
precluded from raising any claims of exemption following their compliance with
the turnover order." (
33 Cal.App.4th 540, 553 (Imperial Bank).)
A
court may exercise its discretion to sign a turnover order for nonexempt
property. (§ 708.205, subd. (a).) Under the abuse of
discretion standard, "a reviewing court should not disturb the exercise of
a trial court's discretion unless it appears that there has been a miscarriage
of justice." (Denham v. Superior
Court, supra, 2 Cal.3d at p. 566.)
" 'The burden is on the party complaining to establish an abuse of
discretion, and unless a clear case of abuse is shown and unless there has been
a miscarriage of justice a reviewing court will not substitute its opinion and
thereby divest the trial court of its discretionary power.' " (Ibid.) Similarly, under the California Constitution,
"[n]o judgment shall be set aside, or new trial granted, in any
cause . . . for any error as to any matter of procedure,
unless . . . the court shall be of the opinion that the
error complained of has resulted in a miscarriage
of justice." (Cal. Const., art. VI, § 13.)
B. Analysis
1. Nevarez's due process rights
Citing the legislative
committee comment to section 703.030, Nevarez claims that she never received
the required hearing prior to the trial court issuing the turnover order.
Specifically, Nevarez relies on the following excerpt from Imperial Bank, supra, 33 Cal.App.4th at page 550:
"The legislative committee comment to
section 703.030 states: 'If property is
levied upon by a levying officer, the applicable procedure for claiming an
exemption is that provided in Article 2 (commencing with Section 703.510), with
the exception of a homestead exemption which is governed by Article 4
(commencing with Section 704.710) . . . . If the property is sought to be reached by
a procedure other than by levy under a writ, a court hearing is required and
exemption claims will be determined at such time or later upon noticed motion.
See Sections 708.120 (examination
proceedings), . . . ' (Legis committee com., 17 West's Ann. Code
Civ. Proc. § 703.030 (1987 ed.) p. 291, italics added.) Clearly, a section
708.205 turnover order issued following examination proceedings is an
alternative to proceeding by way of levy under a writ of execution."
After citing this
passage Nevarez concludes, "[t]he procedure here is other than by way of
levy. Therefore, [defendant] is entitled
to a hearing which she never received."
Nevarez's argument implies that the trial court denied her due process
right to a hearing where she could claim and prove that her interest in the
Rancho Ontiveros mining operation was exempt from enforcement.
Nevarez's argument fails because judgment debtors must first claim
exemption in order to receive an exemption hearing. (See §§ 703.030, 703.100, 708.120; Raigoza
v. Sperl (1973) 34 Cal.App.3d 560, 568.)
Indeed, the statutory framework concerning enforcement of money
judgments places the impetus on the judgment debtor to assert that property is
exempt and encourages the judgment debtor to raise such a challenge early in
the process, preferably prior to examination.
(See §§ 703.030, 703.100,
708.120.) The statutory framework
places this impetus on the judgment debtor because the judgment debtor stands
in the best position to claim and prove that her property is exempt from enforcement. (Raigoza
v. Sperl, supra, 34 Cal.App.3d at p. 568.)
Moreover, the judgment debtor may waive any claim of exemption by
failing to assert the claim in a timely manner.
(See §§ 703.030, 703.100.)
Here, it does not appear from the limited record designated on appeal
that Nevarez ever asserted that her property was exempt at any of the three
examination proceedings or at the OSC hearing re: contempt, or by filing a
noticed motion. Nevarez does not offer
on appeal any substantive argument regarding why or how she intends to assert
that her property is exempt at the hearing she claims she was denied and now
requests. Thus, because the limited
record on appeal is silent as to whether she ever claimed that
her property was exempt, or that she was denied an opportunity to claim
exemption, she has failed to affirmatively show that her due process rights
have been violated. (See, e.g.,
Cal.3d at p. 564.)
2. The trial court did not abuse its discretion
For
Nevarez to succeed on appeal, she must establish that the trial court abused
its discretion and that this abuse constitutes a miscarriage of justice. Nevarez cannot establish an abuse of
discretion or a miscarriage of justice because she did not present an argument
for abuse of discretion in her appellate brief, but merely mentioned the
standard of review. Nevarez does not
discuss how the trial court might have abused its discretion, nor does Nevarez
cite case law or the record to support an abuse of discretion argument. Because Nevarez did not designate the
reporter's transcript for the record on appeal, we cannot address her abuse of
discretion claim. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.)
DISPOSITION
The judgment is affirmed.
Renda shall recover his costs on appeal.
NARES, J.
WE CONCUR:
HUFFMAN,
Acting P. J.
IRION,
J.
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[1] All further statutory references are to the
Code of Civil Procedure unless otherwise specified.
[2] Although
her opening brief spells defendant's last name "Navarez," it is
apparent from the record below and defendant's own notice of appeal that the
correct spelling is "Nevarez."
