JP Morgan Chase Bank v Info Tech

Motion to Stay Garnishment Order

Calendar: 17    
Case No.: EC067346    
Hearing Date: July 26, 2019    
Action Filed: October 13, 2017    
Trial Date: November 05, 2018    

MP: Defendants Kerry Park; Info Tech Corporation d/b/a Info Tech Technology Corp.
RP: Plaintiff JPMorgan Chase Bank, N.A.

 

 

ALLEGATIONS:

Plaintiff JPMorgan Chase Bank, N.A. (“Plaintiff”) alleges that on May 14, 2015, Defendant Info Tech Corporation d/b/a Info Tech Technology Corp. (“Info Tech”) entered into a borrowing relationship with Plaintiff by executing a Line of Credit Note and Credit Agreement in the amount of $1,000,000.00 (“Contract”). (Compl., ¶8, Ex. A.)  That same day, Defendant Kerry Park (“Park” and together with Info Tech the “Defendants”) executed a Continuing Guaranty (“Guaranty”), pursuant to which he guaranteed Info Tech’s payment of the Contract.  (Id., ¶9, Ex. B.)  Plaintiff alleges that Info Tech defaulted under the terms of the contract, in the principal sum of $840,964.75, plus interest, late fees, and cost.  It also alleges that Park is in default under the Guaranty.

The Complaint was filed on October 13, 2017, and alleges causes of action for: (1) Breach of Contract; (2) Money Lent; and (3) Account Stated.  On April 18, 2018, Plaintiff dismissed without prejudice the 2nd and 3rd causes of action for money lent and account stated.

PRESENTATION:

Plaintiff successfully moved for summary judgment, which was heard and granted on August 03, 2018.  Defendants moved to vacate the order by filing a motion to vacate pursuant to Code of Civ. Proc. §473(b) on August 09, 2018, which was set to be heard on September 07, 2018.  However, prior to the Court hearing such a motion, Defendants took the motion off calendar.  Judgment was thereafter entered against Defendants on November 05, 2018, and a writ of execution filed on January 23, 2019.

On June 11, 2019, Defendants moved ex parte to stay the garnishment order on the grounds that the entry of judgment was fraudulently obtained and Plaintiff submitted a declaration in opposition to the motion on June 12, 2019.  The Court stayed enforcement of the garnishment order on June 13, 2019, and continued the hearing to July 26, 2019.

On July 11, 2019, Defendants filed an ex parte order to hold Plaintiff in contempt of court for failing to comply with the Court’s June 13, 2019, order staying garnishment activities.  Plaintiff opposed the motion on the same day, arguing that the activities of the Sherriff’s department were a result of the original garnishment request from before the stay, and not due to any willful violation of the Court’s order.  The Court heard the matter on July 12, 2019, and denied the motion, with the parties stipulating to stay any further activity by the Los Angeles Sherriff’s Department in executing any withholding.

Plaintiff thereafter filed opposition to the pending motion to stay the garnishment order on July 15, 2019.

The Court additionally notes that a “Motion to Set Aside/Vacate Judgment” appears as having been scheduled for hearing on July 26, 2019, together with the instant motion to stay the garnishment order.  In the Court’s review of the casefile on eCourt, the Court cannot identify any noticed motion to set aside/vacate judgment, only a lodging of a prior motion in support of the motion to stay the garnishment order, which was submitted in August 2018 and taken off calendar by the moving party before its September 2018 hearing date.  There is no proffered basis for considering a “lodgment” of a long-ago-noticed motion. Accordingly, the Court deems the scheduling of the putative Motion to Set Aside/Vacate Judgment as not according to proper procedure, and will take the putative motion off calendar.

RELIEF REQUESTED:

Defendants Kerry Park and Info Tech Corporation d/b/a Info Tech Technology Corp. move to stay the application of the garnishment order.

DISCUSSION:

Standard of Review – Defendants seek “an order staying a garnishment order to take effect June 14, 2019.  Ground for the application is that judgment was pertained pursuant to a stipulated entry of judgment fraudulently entered by Plaintiff in violation of the settlement agreement of the instant matter.”  June 11, 2019,Ex Parte Application, 1:21-25.  It is unclear to the Court upon what legal grounds the motion is based, as there is no legal authority – statutory or caselaw – cited in the moving paper by Defendants.

On the one hand, Defendants’ lodgment of their previously noticed motion to vacate may, perhaps, be the grounds upon which Defendants seek relief.  However, a motion to set aside has not been properly noticed and set for hearing, thus the Court does not consider Code of Civ. Proc. §473(b) the legal grounds upon which the instant motion is based.  The Court notes that Defendants failure to discuss any legal authority explaining why they would be entitled to relief in light of the general 6-month bar to motions to set aside in their moving papers militates against the Court reviewing the instant motion under such a standard.

On the other hand, Defendants’ provision of the Settlement Agreement by and between Defendants and Plaintiff indicate that, perhaps, the legal basis for relief is through seeking to enforce the settlement agreement pursuant to Code of Civ. Proc. §664.6.  Section 664.6 grants the Court authority to enforce settlement agreements under certain circumstances, which may be applicable here under Section 6(c) of the Settlement Agreement.  However, as with a hypothetical motion under Code of Civ. Proc. §473(b), the instant motion does not state that Code of Civ. Proc. §664.6 is the grounds upon which the instant motion is based, nor explain why Defendants would be entitled to relief. There is in this matter a subsisting judgment which was not set aside as provided in the settlement agreement.

In either case, no authority is provided for the Court to review, and absent a good faith basis for the modification or extension of an existing law, litigants are generally prohibited from asserting a position in litigation without authority.  See, e.g., California Rules of Professional Conduct, Rule 3.1; In re Estate of Randall(1924) 194 Cal. 725, 728-29 (“Contentions supported neither by argument nor by citation of authority are deemed to be without foundation, and to have been abandoned.”)(internal quotations omitted); Lafferty v. Wells Fargo Bank (2013) 213 Cal. App. 4th 545, 571-72 (“When a point is asserted without argument and authority for the proposition, ‘it is deemed to be without foundation and requires no discussion by the reviewing court.’”); Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal. App. 4th 820, 850 (“In a page and a half, and with citation to but one case for the general proposition the conduct was despicable, [Cross-Appellant appeals] from the granting of the directed verdict motion. This cursory treatment requires no discussion by us.”); Atchley v. City of Fresno (1984) 151 Cal. App. 3d 635, 647 (“Where a point is merely asserted by appellant’s counsel without any argument of or authority for the proposition, it is deemed to be without foundation and requires no discussion by the reviewing court.”).

Accordingly, the motion will be denied.

RULING:

Take the putative motion to set aside/vacate judgment off-calendar as improperly noticed and scheduled.

Motion to stay the garnishment order is denied.

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendants Kerry Park and Info Tech Corporation d/b/a Info Tech Technology Corp.’s Motion to Stay the Garnishment Order came on regularly for hearing on July 26, 2019, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

The motion is:             DENIED IN ITS ENTIRETY; AND

THE PUTATIVE MOTION TO SET ASIDE/VACATE JUDGMENT IS TAKEN OFF-CALENDAR AS IMPROPERLY  FILED.