Opinion
G043585 Super. Ct. No. 05CC00011
12-22-2011
WILLIAM TEZAK et al., Plaintiffs and Appellants, v. MAX B. JOHNSON et al., Defendants and Respondents.
William Tezak, in pro. per.; and Anice Tezak, in pro. per., for Plaintiffs and Appellants. Kevin E. Monson for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from postjudgment orders of the Superior Court of Orange County, Geoffrey T. Glass, Judge. Affirmed.
William Tezak, in pro. per.; and Anice Tezak, in pro. per., for Plaintiffs and Appellants.
Kevin E. Monson for Defendants and Respondents.
Judgment debtor William Tezak and his wife Anice Tezak appeal various postjudgment orders of the trial court pertaining to the enforcement of the judgment against alleged community property assets of the Tezaks. We affirm in all respects.
We shall henceforth refer to the Tezaks by their first names for ease of reference.
FACTS
There is no cause to spill additional ink with regard to the underlying lawsuit, which is thoroughly discussed in a prior opinion. (See Tezak v. Blanco (Oct. 9, 2008, G038315) [nonpub. opn.].) It is enough to note that a defense judgment was entered and William was ordered to pay attorney fees and costs to the defendants. As of December 2009, the judgment (including applicable interest) amounted to $406,150.64. Respondents Max B. Johnson and Richard Fish are the assignees of the defendants/judgment creditors in the underlying action. We set forth additional facts in the discussion section as necessary to address the numerous issues raised by the Tezaks in this appeal.
DISCUSSION
Respondents' Attorney Kevin Monson
The Tezaks first make an unorthodox argument with regard to respondents' attorney, Kevin Monson. By the Tezaks' reckoning, all relief obtained by respondents from the trial court should be reversed because Monson never filed and served a "substitution of attorney" form when he began representing respondents. The Tezaks cite Code of Civil Procedure sections 284 and 285. But these sections apply to a substitution of attorney for an existing party, not the appearance of a new party in the action. The Tezaks were put on notice of Monson's representation of respondents when they appeared in the action. This issue is a nonstarter.
All statutory references are to the Code of Civil Procedure. Section 284 provides: "The attorney in an action or special proceeding may be changed at any time before or after judgment or final determination, as follows: [¶] (1) Upon the consent of both client and attorney, filed with the clerk, or entered upon the minutes; [¶] (2) Upon the order of the court, upon the application of either client or attorney, after notice from one to the other." Section 285 provides: "When an attorney is changed, as provided in the last section, written notice of the change and of the substitution of a new attorney, or of the appearance of the party in person, must be given to the adverse party. Until then he must recognize the former attorney."
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Disqualification of Judge Geoffrey T. Glass
Anice filed a peremptory challenge under section 170.6 to Judge Geoffrey T. Glass. The court struck the peremptory challenge on the grounds that Anice was not a party to the action. Anice did not file a petition for writ of mandate as required to challenge the court's ruling. "The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate . . . . The petition for the writ shall be filed and served within 10 days after service of written notice of entry of the court's order determining the question of disqualification." (§ 170.3, subd. (d); see also People v. Panah (2005) 35 Cal.4th 395, 444.) Thus, we will not review this issue.
Levy of Bank Accounts
Respondents obtained a writ of execution in December 2009, with which they sought to enforce the judgment. Apparently, the sheriff levied upon bank accounts owned by one or both of the Tezaks (the record does not include documentation of such levies or documents identifying the names on the accounts levied upon).
In January 2010, Anice filed a claim of exemption with regard to all bank deposit accounts that were levied upon by the sheriff. Anice asserted: "I am not a Judgment Debtor in [the case] and the money in those accounts is mine." William also filed a claim of exemption as to "ALL Bank Deposit Accounts levied upon." He claimed the levies were "based on a fraud upon the courts and a void judgment." At a noticed hearing on February 9, 2010, the court denied both Tezaks' claims of exemption. The Tezaks did not appear at the hearing.
Community property is available for the satisfaction of a money judgment against one spouse. (§ 695.020.) Judgment creditors may levy upon deposit accounts of the judgment debtor. (§ 700.140.) Nothing in the record provides any basis for questioning the propriety of the court's denial of the Tezaks' claims for exemption. The Tezaks point to a purported transmutation agreement (supposedly executed in 2003) that was submitted to the trial court in March 2010 (one month after the court denied the Tezaks' claims for exemption). Even assuming this document is valid, and even if this document had been submitted to the court in a timely fashion, there is nothing in the record that would suggest the bank accounts levied upon were in the name of Anice only.
Order Authorizing Garnishment of Anice's Wages
Respondents filed a motion pursuant to section 706.109 for an earnings' withholding order on Anice's wages. After a noticed hearing (the same hearing as the bank levy exemption issue), the court granted an order permitting issuance of an earnings withholding order on Anice's wages.
Anice filed a claim of exemption in March 2010, raising the previously mentioned transmutation agreement. The transmutation agreement purports to deem separate property each of the Tezaks' "wages, salaries, commissions, bonuses and other emoluments directly attributable to [their respective] employment . . . ." Anice did not file a motion for reconsideration under section 1008 of the court's prior order granting the motion for an earnings withholding order on her wages.
At an April 20, 2010 hearing, the court stated on the record that the transmutation agreement "should have been raised at the first hearing." The court, without explicitly deciding whether it found the purported agreement to be valid, therefore denied as untimely the claim that Anice's wages were not community property. We agree with the court's ruling. The earnings withholding order had already necessarily determined that her wages were community property.
DISPOSITION
The postjudgment orders are affirmed. Respondents shall recover costs incurred on appeal. We deny the Tezaks' motions for sanctions and to strike respondents' brief.
IKOLA, J. WE CONCUR: O'LEARY, ACTING P. J. FYBEL, J.