Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BL050839. Nicolas Taubert, Commissioner.
Law Offices of Duane R. Folke and Duane R. Folke for Defendant and Appellant.
Lori A. Cruz, Chief Attorney and Fesia A. Davenport, Staff Attorney, County of Los Angeles Child Support Services Department for Plaintiff and Respondent.
PERLUSS, P. J.
Steve Grinter purports to appeal “from the action of the trial court releasing funds, which Respondent/Appellant assert(s) was improperly levied on or about May 11th, 2006.” Because Grinter fails to identify any legally cognizable error in the trial court’s orders entered in this proceeding relating to the enforcement of an out-of-state child support award, we dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In September 1989 the Court of Common Pleas, Juvenile Division, in Lucas County, Ohio entered a parentage judgment declaring Grinter the father of Stevon Hill, born in January 1988, awarding care, custody and control of the child to his mother, LaVater Hill, and ordering child support in the amount of $75 per week. In February 1994 Grinter’s support obligation was reduced to $174.43 per month.
In August 2004 a representative from the Ohio support enforcement agency requested the County of Los Angeles, Child Support Services Department (CSSD) register the February 1994 order for enforcement purposes and collect child support arrears, which totaled nearly $35,000 as of August 19, 2004. On November 3, 2004 CSSD registered the Ohio support orders with the Los Angeles Superior Court and served Grinter with written notice of the registration. CSSD thereafter commenced enforcement efforts.
On December 15, 2005 KeyPoint Credit Union informed Grinter it had received a notice of levy from CSSD for $36,919.27 and advised him it was “required to surrender the lesser of the total amount requested or the balance of your account(s). The amount to be surrendered is $29,606.39 on December 30, 2005.” KeyPoint explained it would issue a check on December 30, 2005 if it had not received a release of levy from CSSD prior to that date.
On December 21, 2005 Grinter, acting in propria persona, filed an ex parte application for release of bank account levy in superior court with a supporting declaration in which he asserted the KeyPoint account at issue belonged to Cathy C. Moore, his girlfriend, and the funds in the account came from a refinancing of property located at 3313 Del Amo Boulevard in Lakewood in which he had no ownership interest. Grinter attached several documents relating to the refinancing transaction to demonstrate the property was owned by Moore. Grinter’s income and expense declaration showed no income and no expenses (including no rent) other than for spousal support. Grinter requested the court order the levy be removed and, alternatively, if the funds had already been paid, that they be returned to the account. The trial court denied the requested relief, but ordered CSSD to hold the funds until March 21, 2006 to permit Grinter to file a properly noticed motion.
Notwithstanding the court’s direction to file a noticed motion, Grinter filed a second ex parte application on December 28, 2005 seeking release of the levied funds and also requesting a court-ordered payment plan on the child support arrears. This application included a supporting declaration from Moore, who explained she was the primary account holder at KeyPoint and had added Grinter’s name to the account to enable him to cash his paychecks when he was employed. Moore declared, “The monies in those accounts are totally mine and were derived from my employment and recent refinance of my home.” The court denied the ex parte application, again indicating the matter must be set as a noticed motion.
On December 30, 2005 Grinter, still acting in propria persona, filed a noticed motion for release of bank account levy, which was set for hearing on January 30, 2006. CSSD filed opposition papers on January 18, 2006, which argued Grinter had failed to demonstrate he was entitled to have the funds released and included, among other documents, a property transfer record revealing that Grinter had sold the Del Amo residence to Moore as an “intra-family transaction” on November 5, 2004 -- two days after he was served with CSSD’s notice of registration of the out-of-state child support orders. On January 30, 2006 Grinter, now represented by counsel, took his motion off calendar.
In its opposition papers CSSD argued Grinter’s motion should be ordered off calendar absent adequate proof he had timely served Hill.
On February 1, 2006 Grinter, though counsel, filed a new motion requesting release of the levy, asserting the KeyPoint account belonged solely to Moore and the funds in that account were the proceeds of the refinancing of real property owned entirely by Moore. The motion was set for hearing on March 1, 2006. CSSD filed opposition papers that were substantially similar to its opposition to the initial motion. On March 1, 2006 Grinter’s motion was continued at the request of his counsel to April 27, 2006. The court’s order that CSSD hold the disputed funds from the KeyPoint account, due to expire on March 21, 2006, was extended to April 27, 2006 as well.
Neither Grinter nor his counsel appeared for the hearing on April 27, 2006. As a result, the court ordered the matter off calendar. On May 5, 2006 CSSD issued a check in the sum of $29,606.39, which was apparently received by the Ohio child support enforcement agency on May 15, 2006.
On May 23, 2006 Grinter, represented by new counsel, filed an ex parte application for an order temporarily staying enforcement of the levy, which was taken off calendar on the same day at the request of counsel once he realized the funds had already been issued to Hill. A notice of appeal was filed on July 10, 2006 “from the action of the trial court releasing funds, which Respondent/Appellant assert(s) was improperly levied on or about May 11th, 2006.”
In his civil case information statement, Grinter states he is appealing from an order entered on May 15, 2006 and served May 23, 2006. No order of that date appears in the record on appeal or on the superior court’s chronological index for this case.
CONTENTIONS
Grinter contends the trial court prematurely allowed CSSD to disburse the levied funds to Hill in violation of Code of Civil Procedure section 703.610, subdivision (a), which precludes disposition of property for which an exemption has been claimed until the time to file an appeal has expired. Grinter also contends he was unfairly denied an opportunity to present his factual and legal arguments addressing the illegality of the levy on the KeyPoint bank account.
Statutory references are to the Code of Civil Procedure.
DISCUSSION
1. Grinter Has Not Sufficiently Identified the Order Being Appealed
The trial court made six orders in this matter. It is by no means clear which of those orders (if any) Grinter seeks to have this court review. (See Cal. Rules of Court, rule 8.100(a)(2) [notice of appeal “is sufficient if it identifies the particular judgment or order being appealed”].)
On December 21 and 28, 2005 the court denied Grinter’s ex parte applications for release of the levy on the KeyPoint account, instructing him to proceed by way of noticed motion. In its December 21, 2005 order the court also directed CSSD not to disburse the funds for 90 days to permit Grinter time to file such a motion. Grinter does not contend the trial court erred in any respect in making those orders; and, in any event, because his notice of appeal was filed more than 180 days from the filing date of the orders, any appeal would be untimely. (See Cal. Rules of Court, rule 8.104(a) [time to appeal].)
On January 30, 2006 Grinter’s motion for release of the levy was taken off calendar at the request of his own counsel. Grinter does not contend, nor could he, the court erred in making that order. Similarly, on March 1, 2006 the court continued the hearing date on Grinter’s second motion for release of the levy to April 27, 2006 at the request of his counsel and also extended the termination date of its order to CSSD not to disburse funds to coincide with the new hearing date. Again, Grinter does not argue the court erred in making those orders. The last order made by the trial court on May 23, 2006 was also entered at the request of Grinter’s counsel to take off calendar his belated ex parte application to temporarily stay enforcement of the levy, a request that had been mooted by the transfer of the disputed funds to Hill. Grinter does not challenge the propriety of granting his counsel’s request.
The only remaining order was made on April 27, 2006 when the court took off calendar the hearing on Grinter’s second motion to release the levy because neither he nor his counsel appeared and thereby implicitly allowed its previous order to CSSD not to disburse funds to expire. Even liberally construing the notice of appeal (Cal. Rules of Court, rule 8.100(a)(2); see Walker v. Los Angeles Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 20), it is by no means clear Grinter intends to appeal from that April 27, 2006 order, at least insofar as it directs the hearing of the motion off calendar. Nonetheless, we examine the contentions advanced by Grinter in his opening brief on appeal (no reply brief was filed) in light of that order to explain why this appeal is properly dismissed.
2. Section 703.610 Does Not Require the Trial Court To Order CSSD Not To Disburse Funds
Grinter’s primary contention on appeal -- the trial court failed to comply with section 703.610, subdivision (a) -- suffers from several fatal flaws. First, as CSSD argues, although the provision does generally proscribe disposition of levied property before the time to file an appeal from an adverse decision in exemption proceedings has expired, the section by its terms applies only to cases in which an exemption after levy has actually been requested. Although Grinter filed multiple ex parte applications and noticed motions arguing CSSD’s levy on the KeyPoint bank account was improper, he never requested an exemption from that levy -- a procedure that requires filing a claim of exemption, executed under oath, with the levying officer, CSSD. (§§ 703.510, subd. (a), 703.520, subd. (a).)
Section 703.610, subdivision (a), provides, “Except as otherwise provided by statute or ordered by the court, the levying officer shall not release, sell, or otherwise dispose of the property for which an exemption is claimed until an appeal is waived, the time to file an appeal has expired, or the exemption is finally determined.”
Once a claimant files with the levying officer, the levying officer is required to serve the judgment creditor with a copy of the claim of exemption and a notice stating the property will be released unless the judgment creditor timely files and serves an opposition to the claim and seeks a court order determining the claim of exemption. (§ 703.540.) A judgment creditor who opposes the claim of exemption then has 10 days from service of the notice of the claim of exemption to file with the court a motion for an order determining exemption. (§ 703.550.)
Second, section 703.610, subdivision (a)’s prohibition is directed to the levying officer (here, CSSD), not the court. That is, even if section 703.610 were applicable to this case, any violation of the section would be CSSD’s responsibility for acting prematurely, not trial court error for failing sua sponte to prevent the levying officer’s breach of the governing time requirements.
Finally, section 703.610, subdivision (b), expressly authorizes the trial court on its own motion, while exemption proceedings are pending, to “make any orders for disposition of the property that may be proper under the circumstances of the case.” Here, the trial court, after directing CSSD to hold the disputed funds from the KeyPoint account from the date of Grinter’s original ex parte application through the continued hearing date on his second motion for release of the levy -- more than 120 days -- allowed that order to expire. Even if we were to overlook the fact this was not an exemption proceeding and to construe the court’s silence as an order for immediate disposition of property under subdivision (b), the record before the trial court was sufficient to support its implied conclusion such an order was proper under the circumstances of the case. (See Kulko v. Superior Court (1977) 19 Cal.3d 514, 519, fn. 1, revd. on other grounds (1978) 436 U.S. 84 [98 S.Ct. 1690, 56 L.Ed.2d 132] [appellate court will not disturb implied findings of fact made by trial court in support of an order; it is presumed court found every fact necessary to support its order that the evidence would justify].)
Section 703.610, subdivision (b), provides, “At any time while the exemption proceedings are pending, upon motion of the judgment creditor or a claimant, or upon its own motion, the court may make any orders for disposition of the property that may be proper under the circumstances of the case. The order may be modified or vacated by the court at any time during the pendency of the exemption proceedings upon any terms that are just.”
3. Grinter Was Not Unfairly Deprived of an Opportunity for a Hearing on the Merits
Grinter does not assert the trial court erred in taking his motion off calendar when his counsel (and Grinter himself) failed to appear on the continued hearing date. He does suggest, however, it is unfair to penalize him for the failure of his counsel to properly address the issues raised in his motion to release the KeyPoint bank account levy. Grinter is not entirely without recourse, whether by motion for relief under section 473, subdivision (b), in the trial court, or an action for malpractice. (See Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 898 [“client’s redress for inexcusable neglect by counsel is, of course, an action for malpractice”].) But his complaint is not properly directed at the trial court, which acted well within its discretion in taking his motion off calendar when no one appeared to argue it on the date set for hearing (a date that had been continued at the request of Grinter’s counsel).
Because the factual questions raised by Grinter concerning ownership of the KeyPoint account, the Del Amo residence and the proceeds from the refinancing of that property were not resolved by the trial court due to his counsel’s failure to appear at the hearing on the motion to release the levy, none of those issues is properly presented to us for initial decision on appeal.
In sum, Grinter has failed to identify any legally cognizable error in the trial court’s April 27, 2006 order. Accordingly, the appeal is dismissed. (See In re Sade C. (1996) 13 Cal.4th 952, 994 [appellant must raise claims of reversible error or other defect in the appealed-from judgment or order and must present argument and authority on each point made; if he or she does not do so, the court in its discretion may deem the appeal abandoned and order its dismissal].)
DISPOSITION
The appeal is dismissed. County of Los Angeles Child Support Services Department is to recover its costs on appeal.
We concur: JOHNSON, J., WOODS, J.