Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 07CC10850, Gregory H. Lewis, Judge.
Law Office of Timothy Krantz and Timothy Krantz for Plaintiffs and Appellants.
No appearance by Respondent.
OPINION
BEDSWORTH, J.
Appellants complain of an order denying their request to obtain an earnings withholding order against the spouse of a judgment debtor. We agree with the trial court that appellants failed to prove the spouse’s earning were subject to withholding, and so affirm.
FACTS
On October 9, 2007, appellants Nicole Craig, by and through her guardian ad litem Rebecca Craig, and Rebecca Craig individually, filed a legal malpractice action against respondent Palak Chopra. Respondent defended the suit for about a year, but failed to appear for trial. Following a prove-up hearing, the court entered judgment for appellants on various theories, including professional negligence, fraud, and intentional infliction of emotional distress. Entered on August 14, 2009, the judgment totaled $1,177,423.99 and included $500,000 in punitive damages.
On May 24, 2010, appellants filed a motion to obtain an earnings withholding order against respondent’s spouse, Sapna Batra Chopra (Sapna). The motion alleged that because respondent was a self-employed attorney, his income was not subject to garnishment. The motion also alleged Sapna was employed at California State University, Fullerton, and because the judgment against respondent was a community debt, her wages were subject to garnishment. As an exhibit to the motion, appellants’ attorney included a two-page computer printout from Westlaw’s property transaction records. The printout states respondent and Sapna own a condominium in Orange which they refinanced on December 22, 2006. It also describes the “owner relationship” as “husband/wife.” Appellants’ motion was served on respondent and Sapna by mailing it to the address listed for the condominium.
Neither respondent nor Sapna appeared at the motion hearing. Still, after hearing argument from appellants’ attorney, the court denied the motion without prejudice. The reporter’s transcript of the hearing is not included in the appellate record, but the minute order states: “The motion must be personally served on the judgment debtor and his wife, neither of whom have an address of record. The court has not yet acquired jurisdiction over the wife, and [appellants] provide[] no authority permitting service on the judgment debtor by mail. In addition, [appellants have] not shown that the wife’s earnings are subject to withholding. There is no showing that the debt underlying the judgment was incurred during marriage. Under Family Code [section] 911, the wife’s earnings would not be liable for a debt incurred prior to marriage unless they are placed in a commingled account. A withholding order would require turnover before the earnings could be placed in a commingled account.”
DISCUSSION
Appellants contend the court erred in denying their motion, but we disagree.
Pursuant to Code of Civil Procedure section 706.109, “An earnings withholding order may not be issued against the earnings of the spouse of the judgment debtor except by court order upon noticed motion.” This provision “recognizes that despite the general rule that community property is liable for debts of a spouse [Fam. Code, § 910, subd. (a)], community property earnings are unique and may not be liable in some situations.” (Legis. Com. com., Code Civ. Proc., § 706.109, italics added.)
For example, as the trial court recognized, “The earnings of a married person during marriage are not liable for a debt incurred by the person’s spouse before marriage. After the earnings of the married person are paid, they remain not liable so long as they are held in a deposit account in which the person’s spouse has no right of withdrawal and are uncommingled with other property in the community estate, except property insignificant in amount.” (Fam. Code, § 911, subd. (a).)
Appellants argue this provision is inapt because the judgment against respondent was a debt he incurred while he and Sapna were married. In so arguing, appellants assume the debt was incurred on the day the judgment was entered, August 14, 2009. However, in the case of a debt arising from tortious conduct, the debt is incurred “at the time the tort occurs.” (Fam. Code, § 903, subd. (b).) Although the trial court’s register of actions shows appellants filed their malpractice action against respondent in 2007, there is nothing in the record that indicates when the torts underlying that suit occurred.
Not only that, the “proof” appellants submitted to establish respondent and Sapna were married as of the time of judgment was insufficient to prove that fact. Appellants relied solely on a printout from Westlaw’s computer research records. However, because the printout reflects information that was entered by human operators, it is hearsay. (People v. Hawkins (2002) 98 Cal.App.4th 1428, 1449.) Therefore, unless an exception to the hearsay rule applies, the court was authorized to exclude the printout on that basis. (Molenda v. Department of Motor Vehicles (2009) 172 Cal.App.4th 974, 996.)
Here, no such exception has been proffered. Although the record does not indicate the trial court based its decision on the hearsay rule, it did find appellants failed to prove “the debt underlying the judgment was incurred during marriage.” Since we must uphold the court’s ruling if it is correct for any reason (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967), the hearsay rule is a sufficient reason to affirm the court’s decision. Suffice it to say, appellants have not shown by competent evidence when the debt was incurred or that respondent and Sapna were married at that time. Nor have they established the commingling requirement that is applicable for debts incurred prior to marriage. Therefore, appellants have failed to prove Sapna’s earnings are liable for the subject debt.
There is also another potential problem with appellant’s motion. As the trial court noted, it was not personally served on Sapna. Appellants argue this doesn’t matter because if the court had granted their motion for a withholding order, Sapna would have had the right to file a claim for an exemption after the order was served on her employer. However, this argument overlooks the possibility Sapna may have wanted to challenge appellants’ right to obtain a withholding order in the first place. As far as she is concerned, it would be better if appellants’ motion were denied outright than having to prove certain exemptions applied down the road, after the order was already served on her employer.
Appellants also argue personal service on Sapna was unnecessary because, once respondent appeared in the underlying lawsuit, the court acquired jurisdiction over his community property, which included Sapna’s earnings. Respondent’s appearance in the underlying lawsuit certainly gave the court jurisdiction over him. However, as explained above, except under circumstances not established here, the earnings of a judgment debtor’s spouse are not subject to withholding if the debt was incurred before marriage. (Fam. Code, § 911.) Therefore, just because the court acquired jurisdiction over the community estate in the underlying lawsuit, that does not mean jurisdiction would necessarily extend to Sapna’s earnings. Given this limitation on the court’s authority to order the garnishment of a nondebtor spouse’s earnings, we are inclined to agree with the view expressed in a leading practice guide on this issue, which is that a motion for such an order must be “personally served” on the nondebtor spouse. (Ahart, Cal. Practice Guide: Enforcing Judgments and Debts (The Rutter Group 2010) § 6:1105.1, p. 6F-12.)
We need not hang our hat on the service issue, however. Plain and simply, appellants’ motion was properly denied for lack of proof the debt underlying the judgment was incurred while respondent and Sapna were married, or if incurred before marriage, that Sapna’s earnings are held in a commingled account. Based on that failure of proof alone, we affirm.
DISPOSITION
The order denying appellants’ motion for an earnings withholding order against Sapna is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.