The opinion
Filed 7/7/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
COASTLINE JX HOLDINGS LLC,
Cross-complainant and Appellant, G059552
v. (Super. Ct. No. 30-2011-00497143)
OPINION
STEPHEN H. BENNETT,
Cross-defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Sherri L. Honer, Judge. Affirmed.
Frandzel Robins Bloom & Csato, Hal D. Goldflam; Greines, Martin, Stein
& Richland, Cynthia E. Tobisman and Alana Rotter for Cross-complainant and
Appellant.
Miller Shah and Ronald S. Kravitz for Cross-defendant and Appellant.
* * *
INTRODUCTION
In December 2019, Coastline JX Holdings LLC (Coastline), assignee of a
judgment creditor’s interest in a money judgment entered against Stephen H. Bennett,
served on Seamount Financial Group, Inc. (Seamount) a notice of levy on Bennett’s
assets in an individual retirement account and a profit-sharing plan. After the trial court
ordered Seamount to liquidate Bennett’s interest in both assets and turn them over to the
levying officer to be delivered to Coastline, Bennett filed a motion for reconsideration of
1
the trial court’s order, under Code of Civil Procedure section 1008. In his motion,
Bennett first argued to the trial court that the profit-sharing plan was protected from levy
because it qualified as a plan under the Employee Retirement Income Security Act of
1974 (ERISA; 29 U.S.C. § 1001 et seq.). He also filed a motion to tax costs.
The trial court denied Bennett’s motion, but informed the parties that, under
its inherent authority, it would reconsider its prior order regarding the distribution of the
profit-sharing plan only (not the individual retirement account) because the court
previously had not considered the implications of it being an ERISA-compliant plan.
After ordering supplemental briefing and setting a hearing on the court’s own motion, the
court reversed its prior decision and concluded the profit-sharing plan was exempt from
levy due to preemption by ERISA. The court ordered Coastline to reimburse the profit-
sharing plan any funds it had received under the court’s prior order. The trial court also
denied Bennett’s motion to tax costs and the request for attorney fees that was included in
his supplemental briefing.
Coastline and Bennett each appealed. We affirm the trial court’s order and
reject each of the parties’ arguments on appeal.
As to Coastline’s appeal, we hold the trial court timely exercised its
inherent authority to reconsider its order regarding the profit-sharing plan. We further
1
All further code references are to the Code of Civil Procedure unless otherwise
specified.
2
hold, as a matter of first impression, that the profit-sharing plan here was automatically
exempt from levy under both ERISA and California law because (1) it is an ERISA-
compliant pension plan which is not assignable as a matter of federal law (29 U.S.C.
§ 1056(d)(1)); and (2) under California’s Enforcement of Judgments Law (§ 680.010 et
seq.), property that is not assignable is not subject to California’s enforcement of
judgment procedures and is thus automatically exempt from levy. (See §§ 695.030,
704.210.) There is no conflict, therefore, between ERISA and California law here.
Accordingly, ERISA preemption, upon which the trial court based its ruling, is not at
issue. The trial court had authority, in reversing its prior order, to direct Coastline to
return to the plan the funds that had been ordered delivered to it in contravention of
federal and state law.
In his appeal, Bennett argues the trial court abused its discretion by denying
his request for attorney fees. Bennett was not entitled to such an award for several
reasons, not the least of which is that the trial court denied his motion for reconsideration.
The trial court’s reasons for denying the motion to tax costs were supported by the record
and its ruling did not otherwise constitute an abuse of discretion. Bennett forfeited his
argument challenging the court’s ruling as to the individual retirement account because
he did not file a timely notice of appeal from the court’s prior ruling ordering its
liquidation.
3
FACTS AND PROCEDURAL HISTORY
I.
COASTLINE SERVED THE NOTICE OF LEVY ON SEAMOUNT
In June 2016, an amended judgment was entered in favor of CU Bancorp
2
and against, inter alia, Bennett in the amount of $398,351.52. After succeeding CU
Bancorp following a merger, PacWest Bancorp assigned all of its rights, title, and interest
in the amended judgment to Coastline, which had replaced PacWest Bancorp/CU
Bancorp as judgment creditor in the amended judgment.
As of September 2019, a total of $619,583.61 remained unpaid and owed to
Coastline on the amended judgment. At Bennett’s debtor examination in November
2019, Bennett confirmed he had an interest in an individual retirement account and in a
profit-sharing plan. He stated the individual retirement account was held “under the
name of Pershing, but the investment advisor is Seamount Financial” and the profit-
sharing plan was held by Seamount. Bennett failed to produce documents regarding
these assets in response to Coastline’s subpoena.
In December 2019, Coastline served a “Notice of Levy under Writ of
Execution, a Memorandum of Garnishee and a Writ of Execution” (the notice of levy) on
Seamount to levy all property in which Bennett had an interest, including any simplified
employee pension individual retirement accounts or profit-sharing accounts. The total
amount of the levy at that time was $619,635.61.
After being served with the notice of levy, Seamount identified an
individual retirement account in Bennett’s name (IRA); Seamount’s broker-dealer, H.
Beck, Inc., placed a hold on the IRA, which at the time had a total value of $100,717.69.
2
A detailed summary of the facts and procedure of the underlying litigation leading up
to entry of the amended judgment is set forth in the opinion issued in the companion case
Coastline JX Holdings LLC v. Letwak & Bennett (May 16, 2022, G059646) [nonpub.
opn.]).
4
Seamount also discovered Bennett had an interest in an employer sponsored profit-
sharing plan which was offered in connection with Bennett’s accounting business and
was titled “Letwak & Bennett, An Accountancy Corporation Profit-sharing Plan” (PSP).
Seamount did not have information regarding the number or identities of the PSP’s
3
participants, or the amount of Bennett’s interest in the PSP.
Later that month, at the continued judgment debtor’s examination, Bennett
produced some documents that were responsive to Coastline’s subpoenas and confirmed
he had an interest in the IRA and the PSP.
II.
SEAMOUNT QUESTIONED THE EXTENT OF BENNETT’S INTEREST IN THE PSP AND
WHETHER THE IRA AND THE PSP MIGHT BE EXEMPT FROM LEVY
In January 2020, Seamount confirmed to Coastline’s counsel that it had
received the notice of levy and had frozen the assets of the IRA, but did not have any
information regarding Bennett’s interest in the PSP. Seamount also informed Coastline’s
counsel that Bennett had claimed to have not received the notice of levy, asserted that the
IRA and the PSP were exempt from levy, and provided Seamount with a copy of a
nonalienation of benefits clause from the PSP’s plan documents.
Coastline provided Seamount with a copy of the proof of service on
Bennett of the notice of levy and advised Seamount that whether the assets might be
exempt was an issue for the court to decide and that Seamount had a duty to turn over the
funds in the IRA to the levying officer. After that conversation, H. Beck effected
“manual restrictions on” the PSP pending resolution of Seamount’s questions about
whether to release funds from it.
On January 15, 2020, Coastline’s counsel received a claim of exemption
form in which Bennett asserted the IRA and the PSP were exempt from levy under
3
“As of December 31, 2019, the PSP contained money market funds and equities, and a
nominal fixed income position.”
5
sections 703.080 and 704.115. On January 21, 2020, however, the Orange County
Sheriff’s Department (OCSD) returned Bennett’s claim of exemption paperwork,
unprocessed, explaining: “According to the process server’s proof of service, you were
notified by mail on 12/16/2019. The deadline to file a claim of exemption on this levy
was 5:00 [p.m.] on 12/31/2019.”
The following day, Coastline sent Seamount a letter demanding that
Seamount cause the IRA and a portion of the PSP, in an amount sufficient to satisfy the
total amount specified in the notice of levy, to be liquidated and all proceeds delivered to
the levying officer. Coastline’s counsel enclosed a copy of the letter from the OCSD
rejecting Bennett’s claim of exemption as untimely.
Bennett later advised Seamount that he owned approximately $70,000 of
the PSP’s total value and four other individuals owned the remainder of the PSP’s assets.
Bennett provided no documentation to support the assertions he made to Seamount.
III.
SEAMOUNT SOUGHT LEAVE TO INTERVENE IN THE ACTION; THE TRIAL COURT
DENIED SEAMOUNT LEAVE TO INTERVENE AND ORDERED SEAMOUNT TO LIQUIDATE
THE IRA AND BENNETT’S INTEREST IN THE PSP FOR LEVY
On January 24, 2020, Seamount gave notice of its ex parte application for
leave to file a motion to intervene in the underlying court action for the purpose of
obtaining a court order on the proper disposition of the disputed assets. In response,
Coastline stated it opposed Seamount’s request to the extent it sought interpleader of the
IRA but did not oppose Seamount’s request to interplead the PSP. Bennett advised
Seamount he did not oppose intervention but opposed interpleading.
Bennett did not appear at the February 4, 2020 hearing on Seamount’s ex
parte application. At that hearing, the court deemed the ex parte application a motion,
and set the motion for hearing on March 12, 2020. Bennett was served via overnight mail
on the motion to intervene set for March 12, 2020. The court ordered the IRA to remain
6
frozen pending further ruling of the court. That same day, three of the PSP’s other
participants filed third party claims.
Bennett informed Coastline’s counsel that he would attend the hearing but
he did not appear at the March 12, 2020 hearing.
Following the hearing, the trial court denied Seamount’s motion to
intervene and issued an order (the March 2020 Order) stating in relevant part:
“1. IT IS HEREBY ORDERED that Seamount’s Motion to Intervene is
DENIED.
“2. IT IS FURTHER ORDERED, with respect to the Notice of Levy upon
the interests of Judgment Debtor Stephen H. Bennett (‘Bennett’) in the Simplified
Employee Pension Individual Retirement Arrangement maintained by Seamount as
Account No. xxx-xx3511 (‘IRA’), and in the profit-sharing plan maintained by Seamount
as Account No. xxx-xx9018 (‘PSP’), which Notice of Levy Coastline caused to be served
on Seamount on December 16, 2019 (the ‘Levy), as follows:
“A. As to the IRA, Seamount shall immediately proceed to liquidate all
securities and other non-cash assets held in the IRA, and shall, within 10 days of this
Order, deliver all of the proceeds of such liquidation, together with all cash held in the
IRA, to the Orange County Sheriff’s Department (‘Sheriff’). The court finds judgment
debtor Bennett failed to timely file a claim of exemption with respect to said funds.
“B. As to the PSP,
“i. the Court accepts the Stipulation [of the third party claimants regarding
the PSP], which Stipulation provides, among other things: (a) that for purposes of the
Levy, the value of Bennett’s interest in the PSP is deemed to be $60,000.00; and (b) that
said third parties agree that irrespective of the fact that their interests are based on a draft
reconciliation as of December 31, 2019, and irrespective of any fluctuations in value that
may have occurred since December 31, 2019, their respective claims do not include
Bennett’s $60,000 interest; [¶] . . . [¶]
7
“iii. the Court finds that, based on the admission of Bennett in his February
6, 2020 e-mail to Coastline’s counsel of record . . . , Bennett’s interest in the PSP for
purposes of the Levy is $60,000.00; and
“iv. Seamount shall, within ten days of this Order, deliver to the Sheriff the
amount of $60,000.00 cash from the cash assets of the PSP. If the PSP does not have
cash assets greater than or equal to $60,000.00, Seamount shall immediately liquidate a
sufficient amount of the securities and/or other non-cash assets held in the PSP which,
when added to cash assets of the PSP, will equal at least $60,000.00 cash, and shall,
within 10 days of this Order, deliver the sum of $60,000.00 cash from the PSP to the
Sheriff. Other than the $60,000.00 from the PSP that Seamount shall deliver to the
Sheriff, Seamount shall not transfer any other assets of the PSP (whether securities, other
non-cash assets, and/or cash) to the Sheriff pursuant to the Levy or the Modification of
Levy issued by the Sheriff on March 3, 2020.
“C. As to all of the funds ordered to be delivered by Seamount (or any
entity of behalf of Seamount, including, but not limited to, Pershing LLC) to the Sheriff
pursuant to Sections 2.A. and 2.B. of this Order, above, the Sheriff shall deliver them to
Coastline as soon as reasonably possible after the Sheriff’s receipt of said funds, payable
as follows [to Coastline’s counsel].
“D. The Sheriff is ordered to deliver to [Coastline’s counsel] all funds it
receives pursuant to this Order and in connection with the Levy, minus any processing
fees, notwithstanding the Third Party Claims . . . which Third Party Claims are resolved
in their entirety as set forth herein.”
At no time before the March 2020 Order did any party raise the issue that
the PSP might be automatically exempt under ERISA. Pursuant to the March 2020
Order, on April 28, 2020, Coastline received $121,964.71 from the OCSD.
8
IV.
BENNETT FILED A MOTION FOR RECONSIDERATION OF THE MARCH 2020 ORDER
AND A MOTION TO TAX COSTS
On June 1, 2020, Bennett filed a motion for reconsideration of the March
2020 Order under section 1008. Bennett also filed a motion to tax Coastline’s claimed
costs. A copy of the memorandum of costs to which Bennett’s motion responds is not
included in our record. Our record does include a subsequently amended memorandum
of costs after judgment, dated and served on July 2, 2020, in which Coastline sought a
total of $103,993.80 in costs, including $95,145.75 in attorney fees incurred from
September 1, 2019 through April 30, 2020, against Bennett. The amended memorandum
of costs acknowledged the payment in the total amount of $139,247.71 (including returns
on levy process and direct payments) that had been received by Coastline and applied to
the interest accrued on the balance of the amended judgment.
V.
THE TRIAL COURT DENIED BENNETT’S MOTION FOR RECONSIDERATION BUT
EXERCISED ITS INHERENT AUTHORITY TO RECONSIDER THE
MARCH 2020 ORDER AS TO THE PSP ONLY
On July 6, 2020, the trial court denied Bennett’s motion for reconsideration
of the March 2020 Order. Although it deemed the motion for reconsideration to have
been timely filed, the court found Bennett had failed to present new or different facts as
required by section 1008.
In its minute order, the court stated it would exercise its inherent authority,
however, and potentially reconsider its ruling with respect to the distribution of $60,000
from the PSP only. The court explained that before issuing the March 2020 Order,
(1) Bennett had not appeared at the hearing “despite being placed on notice of Coastline’s
request to order disbursement of the funds”; (2) Bennett had not made a timely claim of
exemption; (3) no argument had been raised that the PSP was automatically exempt from
levy without the need to make a claim; (4) the third party claimants had stipulated to
9
Bennett’s admitted $60,000 interest in the PSP; and (5) no party present at the hearing
expressed opposition to Coastline’s requested distribution of that amount from the PSP.
Consequently, the court explained it had not considered whether the PSP was an ERISA
compliant plan or whether such a plan is automatically exempt from levy at the time it
issued the March 2020 Order.
In the minute order, the court also stated it did “NOT reconsider its ruling
with respect to the IRA.” The court found that “[p]rior to the March 12[] Order, Bennett
knew or should have known that the court would consider issues beyond the notice of
4
motion to permit Seamount to intervene in this action.”
The court continued the hearing on its own motion to reconsider the March
2020 Order, and ordered the parties to brief the following issues:
“1. Whether a timely claim of exemption must be filed with respect to an
ERISA compliant plan, or whether the exemption is automatic. (For purpose of this
issue, it is assumed the PSP is ERISA compliant.)
“2. If automatic, whether the PSP at issue is actually ERISA compliant.”
Both Coastline and Bennett filed supplemental briefs. In support of his
supplemental brief, Bennett attached a copy of the PSP Basic Plan Document, which
contains a nonalienation of benefits provision. Bennett also included a request for an
award of prevailing party attorney fees in his brief.
At a hearing on August 10, 2020, the trial court read its tentative ruling
granting reconsideration of its ruling on the PSP on the ground the PSP was automatically
4 The court observed that Bennett had been served with the February 2020 order
requesting supplemental briefing on Seamount’s motion as well as Coastline’s
supplemental brief and proposed order, both of which requested an order for the
liquidation of the IRA, the liquidation of $60,000 from the PSP, and the delivery of those
funds to the levying officer. The court found Bennett had been provided the requisite
opportunity to brief and present evidence at the March 12 hearing but failed to appear or
address Coastline’s request. The court noted: “There was no surprise. The Order cannot
be characterized as a surprise if Bennett had been diligent.”
10
exempt under ERISA. After entertaining argument on the tentative ruling from counsel,
the trial court took the matter under submission.
VI.
THE TRIAL COURT CONCLUDED THE PSP IS EXEMPT FROM LEVY UNDER ERISA
AND ORDERED REIMBURSEMENT TO THE PSP; THE COURT ALSO DENIED BENNETT’S
MOTION TO TAX COSTS AND HIS REQUEST FOR ATTORNEY FEES
In its minute order dated September 21, 2020 (the September 2020 Order),
the trial court reiterated it had denied Bennett’s motion for reconsideration. The court
ruled that it had exercised its inherent authority, reconsidered its ruling with respect to the
$60,000 distribution from the PSP, and found those funds to be exempt under ERISA
which the court concluded preempted California law. The court ordered that “to the
extent the judgment creditor had received a distribution of $60,000 from the PSP,
judgment creditor is ordered to reimburse that amount to the PSP.” The court denied
Bennett’s motion to tax costs and also denied Bennett’s request in his supplemental brief
for an award of prevailing party attorney fees.
Although the court had denied reconsideration of the March 2020 Order as
to the IRA, the court stated in its minute order that Bennett had failed to establish that the
IRA was exempt from levy. The court explained: “[D]espite judgment debtor’s
claim . . . that the funds in the SEP-IRA were rolled over from the PSP account, the
exhibit attached in support of his contention demonstrates otherwise. . . . To the contrary,
at page 3, section 3 of the form, the judgment debtor indicates the source of the funds was
from ‘Income from Earnings.’ Thus, even had judgment debtor filed a timely claim of
exemption regarding the SEP-IRA, which he did not, the judgment debtor has failed to
establish the funds were rolled over from the PSP.”
Coastline and Bennett each filed a timely notice of appeal.
11
DISCUSSION
I.
COASTLINE’S APPEAL
A.
The Trial Court Had Inherent Authority to Reconsider the
March 2020 Order Regarding the PSP
Coastline contends the trial court erred by reconsidering the March 2020
Order because it had lost jurisdiction to do so. Coastline’s argument is without merit.
1.
Overview of Section 1008 and the Trial Court’s Inherent Authority to
Reconsider Prior Rulings on Its Own Motion
Section 1008 limits the circumstances in which a party may seek
reconsideration of a court’s ruling. Section 1008, subdivision (a), provides in part:
“When an application for an order has been made to a judge, or to a court, and refused in
whole or in part, or granted, or granted conditionally, or on terms, any party affected by
the order may, within 10 days after service upon the party of written notice of entry of the
order and based upon new or different facts, circumstances, or law, make application to
the same judge or court that made the order, to reconsider the matter and modify, amend,
or revoke the prior order.” (Italics added.) The trial court denied Bennett’s motion for
reconsideration of the March 2020 Order regarding the PSP on the ground it was not
based upon new or different facts, circumstances, or law. Bennett did not appeal from the
March 2020 Order and that order denying the motion for reconsideration was not
appealable. (Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1577.)
Although section 1008 limits the circumstances in which a party may seek
reconsideration, it “do[es] not limit the court’s ability, on its own motion, to reconsider
its prior interim orders so it may correct its own errors.” (Le Francois v. Goel (2005)
35 Cal.4th 1094, 1107 (Le Francois).) “[A] trial court has inherent power to reconsider
an interim ruling on its own motion. [Citation.] This authority derives from the
12
judiciary’s fundamental, constitutionally mandated function to resolve specific
controversies between parties.” (Brown, Winfield & Canzoneri, Inc. v. Superior Court
(2010) 47 Cal.4th 1233, 1248 (Brown).)
Furthermore, “it is immaterial what may have triggered a trial court’s
insight that its interim order might be erroneous: ‘We cannot prevent a party from
communicating the view to a court that it should reconsider a prior ruling (although any
such communication should never be ex parte). We agree that it should not matter
whether the “judge has an unprovoked flash of understanding in the middle of the night”
[citation] or acts in response to a party’s suggestion. If a court believes one of its prior
interim orders was erroneous, it should be able to correct that error no matter how it came
to acquire that belief.’ (Le Francois, supra, 35 Cal.4th at p. 1108; see, e.g., In re
Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1308 [although motion for
reconsideration that is unsupported by new legal authority or new evidence violates
§ 1008, such a motion may inspire the trial court to reconsider its previous decision on its
own motion].)” (Brown, supra, 47 Cal.4th at p. 1249.) The Supreme Court in Le
Francois further explained that, out of concerns for procedural fairness, a trial court that
intends to exercise its inherent power to reconsider a prior ruling must provide the parties
“notice that it may do so and a reasonable opportunity to litigate the question.” (Le
Francois, supra, at p. 1097; see Brown, supra, 47 Cal.4th at p. 1248.)
Here, in its minute order dated July 6, 2020, the trial court denied Bennett’s
motion for reconsideration on the ground Bennett failed to present new or different facts
as required under section 1008. Citing Le Francois, the trial court stated in its minute
order it “exercises its inherent authority to potentially reconsider its ruling” with regard to
the PSP only. The court ordered the parties to brief (1) “[w]hether a timely claim of
exemption must be filed with respect to an ERISA compliant plan, or whether the
exemption is automatic” and (2) “[i]f automatic, whether the PSP at issue is actually
13
ERISA compliant.” No party argues the trial court failed to provide proper notice and the
opportunity to litigate the issues the trial court wished to reconsider.
2.
The Trial Court Had Jurisdiction to Reconsider the
March 2020 Order on Its Own Motion
Coastline argues the trial court lacked jurisdiction to reconsider the March
2020 Order because, by the time the parties had completed supplemental briefing and the
court decided to reverse its prior ruling on the ground the PSP was an ERISA-compliant
plan that was exempt from levy, the March 2020 Order was final and beyond the court’s
inherent authority to reconsider. Coastline’s argument is without merit.
The trial court gave the parties notice of its intention to potentially
reconsider the March 2020 Order with regard to Bennett’s interest in the PSP in July.
The court held a hearing on August 10 at which it read its tentative ruling that it would
grant its own motion for reconsideration of the March 2020 Order and conclude the PSP
was automatically exempt from levy by operation of ERISA preemption. After
entertaining the parties’ counsel’s arguments on the tentative ruling, the court took the
matter under submission.
Coastline acknowledges in its opening brief that the time to appeal the
March 2020 Order did not expire until August 26, 2020. The March 2020 Order,
therefore, was not final when the court initially invoked its inherent power to reconsider
that order or when the court announced its tentative decision on reconsideration that the
PSP was automatically exempt from levy. Citing Le Francois, supra, 35 Cal.4th at page
1105, footnote 4, the appellate court in In re Marriage of Barthold (2008) 158
Cal.App.4th 1301, 1313, footnote 9, explained: “[T]he original order was not yet ‘final’
at the time the judge reconsidered it, because the time to appeal it had not yet expired.
Thus, this appeal does not present, and we therefore do not decide, the issue whether a
trial court can reconsider an appealable order on its own motion after the time to appeal
14
from that order has expired. This circumstance may well have been the issue the
Supreme Court had in mind when it indicated in Le Francois that ‘ . . . final
orders . . . present quite different concerns’ from interim orders.”
In its opening brief, Coastline suggests that the trial court had not effected a
reconsideration of its March 2020 Order until September 2020, when it finally ruled it
would reverse the part of the March 2020 Order addressing the PSP. Coastline argues
that because the September 2020 Order issued after the deadline to appeal the March
2020 Order the trial court had lost its authority to reconsider its ruling.
We construe the language of the court’s July 6, 2020 minute order that it
“potentially reconsiders its ruling with respect to distribution of $60,000 from the profit-
sharing plan” (italics added) as the court then commencing the reconsideration process
and informing the parties that, after it completed that process, it might reverse
5
(potentially) the relevant portion of the March 2020 Order. Our understanding of the
court’s statement is supported by the court’s actions in the same minute order of ordering
the parties to provide supplemental briefs answering specific questions relevant to the
court’s reconsideration of the distribution of the PSP issue and by setting a further
hearing on the court’s motion. As the trial court in July 2020 commenced its
reconsideration of the PSP portion of the March 2020 Order on its own motion well
before the August 26 deadline for filing an appeal from that order, the trial court had
jurisdiction to proceed. In any event, the court clearly had reconsidered the March 2020
Order by the August 10 hearing as evidenced by the court announcing its tentative ruling
reconsidering the status of the PSP as automatically exempt from levy. As both the trial
court’s announcement of its intent to reconsider the March 2020 Order and its tentative
ruling reversing the part of that order as to whether the PSP might be levied upon
5
At the July 6, 2020 hearing, the court stated, “So, my inherent authority, I’m telling you
what issues that I’m going to be considering under my inherent authority and it is very
limited.”
15
occurred before the deadline for filing an appeal from the March 2020 Order, we do not
need to address the extent to which a trial court has inherent authority to reconsider an
order after the time to appeal that order has passed.
B.
Because the PSP Was Not Assignable as a Matter of Federal Law, It Was Not Subject
to Enforcement of the Amended Judgment Pursuant to Section 695.030
For the reasons we will explain, the trial court correctly determined that the
PSP was automatically exempt from levy. Our conclusion, however, is not based on
ERISA preemption as relied upon by the trial court, but on the nonassignability of that
asset under federal law, which section 695.030 places outside the reach of enforcement of
judgment procedures under California law.
1.
Standard of Review and Rules of Statutory Interpretation
Our analysis of the September 2020 Order in which the court concluded the
PSP was automatically exempt from levy depends on our interpretation of relevant
sections in the Code of Civil Procedure, addressing the enforcement of money judgments,
as well as portions of ERISA itself. “‘We review de novo the issues of the application of
a statutory exemption to undisputed facts [citation], and interpretation of the statutes.’”
(Kilker v. Stillman (2015) 233 Cal.App.4th 320, 329 (Kilker).)
“‘[O]ur fundamental task in construing a statute is to ascertain the intent of
the lawmakers so as to effectuate the purpose of the statute.’ [Citation.] In this search
for what the Legislature meant, ‘[t]he statutory language itself is the most reliable
indicator, so we start with the statute’s words, assigning them their usual and ordinary
meanings, and construing them in context. If the words themselves are not ambiguous,
we presume the Legislature meant what it said, and the statute’s plain meaning governs.
On the other hand, if the language allows more than one reasonable construction, we may
look to such aids as the legislative history of the measure and maxims of statutory
16
construction. In cases of uncertain meaning, we may also consider the consequences of a
particular interpretation, including its impact on public policy.’” (Martinez v. Combs
(2010) 49 Cal.4th 35, 51.)
2.
The PSP Was Not Subject to Coastline’s Efforts to Enforce the Amended Judgment
As a general rule, under California’s Enforcement of Judgments Law
(§ 680.010 et seq.), “all property of the judgment debtor is subject to enforcement of a
money judgment” (§ 695.010, subd. (a)) through a writ of execution (§ 699.710). “‘The
California Constitution, however, requires the Legislature to protect “a certain portion” of
a debtor’s property from forced sale. [Citation.] The purpose of this requirement is to
protect enough of the debtors’ property from enforcement to enable them to support
themselves and their families, and to help shift the cost of social welfare for debtors from
the community to judgment creditors. [Citations.] [¶] To that end, California has enacted
a “comprehensive and precisely detailed scheme” governing enforcement of money
judgments. [Citations.] The kinds and degrees of property exempt from levy are
[generally] described in . . . sections 704.010 through 704.210. These provisions relate to
property of the debtor that would ordinarily be subject to enforcement of a money
judgment by execution or otherwise, but for the statute allowing the debtor to retain all or
part of it to protect himself and his family.’” (Kilker, supra, 233 Cal.App.4th at pp. 329-
6
330.)
“‘[A]dditional exemptions are provided by other California statutes and by
federal law.’” (Kilker, supra, 233 Cal.App.4th at p. 330.) Section 703.030, subdivision
(a), provides: “An exemption for property that is described in this chapter or in any other
statute as exempt may be claimed within the time and in the manner prescribed in the
6
“‘[A]lthough the burden of proof lies with the party claiming the exemption, exemption
statutes are generally construed in favor of the debtor.’” (Kilker, supra, 233 Cal.App.4th
at p. 330.)
17
applicable enforcement procedure. If the exemption is not so claimed, the exemption is
waived and the property is subject to enforcement of a money judgment.” Profit-sharing
plans and certain individual retirement accounts are described in section 704.115,
subdivision (a), which is included in the same chapter as section 703.030. Therefore,
generally speaking, and absent the application of another statute, a profit-sharing plan or
an individual retirement plan is exempt if the debtor makes a claim of exemption; if the
debtor fails to make a claim, the exemption is forfeited.
Regardless of the nature of the property, section 695.030 provides that
property not assignable or transferable is not subject to enforcement of a money judgment
and is automatically exempt—regardless of whether the debtor makes a claim of
exemption. 695.030, subdivision (a), provides: “Except as otherwise provided by
statute, property of the judgment debtor that is not assignable or transferable is not
subject to enforcement of a money judgment.” (Italics added.) Furthermore, section
704.210 makes clear that “[p]roperty that is not subject to enforcement of a money
judgment is exempt without making a claim.” (Italics added.)
The question then becomes whether the PSP was assignable. If answered
in the affirmative, it is undisputed Bennett failed to timely make a claim of exemption
and therefore forfeited the argument the PSP was exempt from levy. If answered in the
negative, the PSP was automatically exempt from enforcement of the amended judgment
notwithstanding Bennett’s failure to timely claim an exemption. We turn to federal law
to answer this question.
Following the trial court’s request for supplemental briefing on the issue,
the court concluded the PSP is an ERISA-compliant plan. Coastline does not challenge
that finding on appeal. ERISA provides unequivocally that pension benefits under a
qualified plan are not assignable. Section 1056(d)(1) of title 29 of the United States Code
provides: “Each pension plan shall provide that benefits provided under the plan may not
18
7
be assigned or alienated.” A profit-sharing plan is a pension plan for purposes of
8
ERISA. (Cooke, ERISA Practice and Procedure (2d. rev. 2022), § 2:4.)
In accordance with the nonalienation mandate of ERISA, section 14.01 of
the PSP’s “Basic Plan Document,” entitled “NONALIENATION OF BENEFITS,” states
in part: “[T]he Trust Fund shall not be subject to any form of attachment, garnishment,
sequestration or other actions of collection afforded creditors of the Company,
Participants or Beneficiaries under the Plan and all payments, benefits and rights shall
be free from attachment, garnishment, trustee’s process, or any other legal or equitable
process available to any creditor of such Company, Participant or Beneficiary. Except
7
Subdivision (d)(2) of section 1056 of title 29 of the United States Code provides: “For
purposes of paragraph (1) of this subsection, there shall not be taken into account any
voluntary and revocable assignment of not to exceed 10 percent of any benefit payment,
or of any irrevocable assignment or alienation of benefits executed before [September 2,
1974]. The preceding sentence shall not apply to any assignment or alienation made for
the purposes of defraying plan administration costs. For purposes of this paragraph a
loan made to a participant or beneficiary shall not be treated as an assignment or
alienation if such loan is secured by the participant’s accrued nonforfeitable benefit and is
exempt from the tax imposed by section 4975 of Title 26 (relating to tax on prohibited
transactions) by reason of section 4975(d)(1) of such Code.”
8
“A pension plan, then, is a formal plan or program whereby funds are accumulated to
pay for retirement income or other deferred income to employees of an employer,
payable at a future date, generally at the normal retirement age as specified in the plan.
The plan, which constitutes a separate entity from the employer, generally accumulates
funds by means of specified employer contributions (although some plans may allow
employee contributions), which it invests and accumulates with interest plus any returns
from the investments. Payments or distributions may take a variety of forms, including a
monthly benefit, or they may be made in the form of a lump sum distribution, which is
usually the case in a profit-sharing plan, which for purposes of the Employee Retirement
Income Security Act of 1974 (ERISA) is a pension plan. ERISA, however, does not
mandate any particular form of payment.” (Cooke, ERISA Practice and Procedure,
supra, § 2:4, italics added.)
19
as provided in Section 14.01(b),[9] no Participant or Beneficiary shall have the right to
alienate, anticipate, commute, pledge, encumber or assign any of the benefits or payments
which he may expect to receive, contingently or otherwise, under the Plan, except the
right to designate a Beneficiary. Any reference to a Participant or Beneficiary shall
include an Alternate Payee or the Beneficiary of an Alternate Payee.” (Italics added.)
As the PSP was not assignable under ERISA, it was not subject to
enforcement of the amended judgment under section 695.030 and was automatically
exempt from levy regardless of the fact that Bennett failed to make a timely claim of
exemption.
The trial court found the PSP automatically exempt because ERISA, which
prohibits attachment of funds in a qualified pension plan, preempts California law which
conditions the exempt status of certain pension plans on the debtor timely filing a claim
of exemption. (See 29 U.S.C. §1144(a) [“Except as provided in subsection (b) of this
section, the provisions of this title and title IV shall supersede any and all State laws
insofar as they may now or hereafter relate to any employee benefit plan described in
section [1003(a) of this title] and not exempt under section [1003(b) of this title]”]; see
Cooke, ERISA Practice and Procedure, supra, § 2.11 [“The basic analysis of whether a
state law is preempted by [ERISA] requires judicial analysis of three elements: (1)
whether the law relates to any employee benefit plan; (2) whether the state law attempts
to reach in one way or another the terms and conditions of an employee benefit plan; and
(3) whether the state law regulates insurance, banking, or securities or is a generally
applicable criminal law”].)
9
Section 14.01(b) of the PSP’s Basic Plan document provides exceptions to the general
rule, that are not relevant here, and that are in accordance with cited provisions of the
United States Code involving Qualified Domestic Relations Orders, federal tax levies,
actions to recover benefit overpayments, and settlements between the participant and the
Secretary of Labor or the Pension Benefit Guaranty Corporation.
20
We do not need to decide the extent to which ERISA preempts the
California Enforcement of Judgments Law because there is no conflict between federal
and state law here. As discussed ante, section 695.030 expressly excludes property that
is not assignable from California’s enforcement of judgment procedures. Thus, the trial
court correctly ruled in the September 2020 Order that the PSP was automatically exempt
from levy.
3.
Coastline’s Supplemental Brief
In response to our invitation to file a supplemental brief addressing section
695.030’s applicability to this case, Coastline filed a supplemental letter brief in which it
argued: “[O]n its face, section 695.030 is subject to exceptions: ‘Except as otherwise
provided by statute,’ property that ‘is not assignable or transferrable is not subject to
enforcement of a money judgment.’ [Citation.] [¶] Section 704.115 is the ‘otherwise
provided by statute’ when it comes to the profit-sharing plan at issue here: Section
704.115 states that private retirement plans—including ‘[p]rofit-sharing plans designed
and used for retirement purposes’—are ‘exempt.’ (§ 704.115, subds. (a)(2), (b), italics
added.) It does not say ‘exempt without making a claim.’ The exemption, thus, must be
timely claimed, or ‘the exemption is waived and the property is subject to enforcement of
a money judgment.’ (§ 703.030, subd. (a).) [¶] Section 704.115 does not mention any
carve-outs. Unlike section 695.030, it does not say ‘[e]xcept as otherwise provided by
statute.’ Nor does it say ‘except for property that is not assignable.’ Rather, its text
unambiguously applies to Bennett’s profit-sharing plan.”
In other words, Coastline argues that sections 695.030, 703.030,
subdivision (a), and section 704.115 should be interpreted together to provide that
nonassignable property is not subject to California’s enforcement of judgments procedure
unless it is a profit-sharing plan (whether an ERISA-compliant pension plan or not) in
21
which case it is only exempt from levy if the debtor makes a timely claim of exemption.
We disagree with this interpretation.
Section 704.115, subdivision (a) simply defines the term “private
retirement plan” and subdivision (b) states that funds held by such a plan are exempt
from levy. It is section 703.030, subdivision (a), that states property declared exempt in
statutes that include section 704.115 must be timely claimed exempt by the debtor or else
the property loses its exempt status and “is subject to enforcement of a money judgment.”
But section 703.030 goes on to state, in subdivision (b), that “[e]xcept as otherwise
specifically provided by statute, property that is described in this chapter or in any other
statute as exempt without making a claim is not subject to any procedure for enforcement
of a money judgment.” (Italics added.) ERISA at section 1056(d)(1) of title 29 of the
United States Code falls within the “any other statute” provision of section 703.030 that
renders an ERISA-compliant pension plan exempt without making a claim, because it
outright prohibits states from attaching ERISA-compliant pension plan benefits. (See
Mackey v. Lanier Collection Agency & Service, Inc. (1988) 486 U.S. 825, 836 [“Where
Congress intended in ERISA to preclude a particular method of state-law enforcement of
judgments, or extend anti-alienation protection to a particular type of ERISA plan, it did
so expressly in the statute. Specifically, ERISA § 206(d)(1) [29 U.S.C. § 1056(d)(1)]
bars (with certain enumerated exceptions not applicable here, e.g. QDRO’s) the
alienation or assignment of benefits provided for by ERISA pension benefit plans”]; see
Guidry v. Sheet Metal Workers Pension Fund (1990) 493 U.S. 365, 371-372, fns. omitted
[“The view that the statutory restrictions on assignment or alienation of pension benefits
apply to garnishment is consistent with applicable administrative regulations, with the
relevant legislative history, and with the views of other federal courts. It is also
consonant with other statutory provisions designed to safeguard retirement income”].)
22
Coastline cites no legal authority and we have found none in which an
ERISA-compliant pension plan such as the one here was held subject to levy to enforce a
civil judgment. We find no error.
C.
The Trial Court Did Not Err by Ordering Coastline to Reimburse the PSP for Funds
Received from the PSP Under the Portion of the March 2020 Order It Reversed
Coastline argues that notwithstanding the court’s reversal in the September
2020 Order of its decision in the March 2020 Order that Bennett’s interest in the PSP was
subject to levy, the trial court did not have the authority to order Coastline to return funds
it had already received from the PSP, to the PSP.
Section 187 provides: “When jurisdiction is, by the Constitution or this
Code, or by any other statute, conferred on a Court or judicial officer, all the means
necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if
the course of proceeding be not specifically pointed out by this Code or the statute, any
suitable process or mode of proceeding may be adopted which may appear most
conformable to the spirit of this Code.” In Weiss v. People ex rel. Dept. of
Transportation (2020) 9 Cal.5th 840, 863-864, the California Supreme Court, citing
section 187, explained: “Trial courts have inherent and statutory authority to devise and
utilize procedures appropriate to the specific litigation before them. [Citations.] This
authority ‘“arises from necessity where, in the absence of any previously established
procedural rule, rights would be lost or the court would be unable to function.”’ . . . [W]e
have held that trial courts may, when necessary, ‘follow provisions of the Code of Civil
Procedure which are harmonious with the objects and purposes of the proceeding
although those provisions are not specifically made applicable by the statute which
creates the proceeding.’” (See Wesson v. Staples the Office Superstore, LLC (2021)
68 Cal.App.5th 746, 763 [“Courts may exercise their inherent authority to fashion
23
procedures and remedies as necessary to protect litigants’ rights and the fairness of
trial”].)
As discussed ante, the time to appeal from the March 2020 Order had not
yet expired when the trial court exercised its inherent authority to reconsider that order
with regard to the PSP. The court therefore had jurisdiction when it reviewed and
ultimately reversed its decision that Bennett’s interest in the PSP was subject to levy and
ordered Coastline to reimburse the PSP the amount of funds it had received as a result of
the court’s prior error.
Coastline identifies no statute in the California Enforcement of Judgments
Law, or otherwise, or any Rule of Court, that addresses much less limits how the trial
court might remedy the problem that arose here—the release of exempt funds from an
ERISA-compliant pension plan to a creditor due to an erroneous (and subsequently
reversed) court order.
Coastline cites a single authority in support of its argument, Adir Internat.,
LLC v. Superior Court (2013) 216 Cal.App.4th 996 (Adir), to conclude the trial court
erred by directing the return of the levied funds to the PSP. Adir is inapplicable.
In Adir, supra, 216 Cal.App.4th 996, a judgment creditor prevailed at trial
and obtained a writ of execution that was filed with the county sheriff. (Id. at p. 998.)
The sheriff levied the judgment debtor’s bank account, which thereby created an
execution lien on the levied property. (Id. at pp. 998-999.) The debtor filed a notice of
appeal and an appeal bond, which extinguished the execution lien and required the return
of the levied funds to the debtor. (Id. at p. 999.) But the debtor had not taken the proper
steps to ensure the sheriff would release the funds back to the debtor by seeking an order
from the court recalling and/or quashing the writ of execution. (Id. at pp. 999-1000.) As
a result, the sheriff released the funds to the creditor. (Id. at p. 1000.) The debtor then
requested that the trial court require the creditor to return the disbursed funds, but the
court found it had no authority to do so, and the Court of Appeal agreed. (Id. at p. 1002.)
24
Adir addresses whether a trial court has the authority to order the return of
property that was disbursed by the sheriff in the regular course of levying funds pursuant
to a writ of execution, but should not have been because the debtor had perfected an
appeal. The Adir court concluded the trial court does not have such authority.
Adir does not address a trial court’s authority to order the return of exempt
funds to a third party, much less an ERISA-compliant pension plan, that the court itself
had previously and, by its own determination, wrongfully ordered released to the creditor.
The trial court did not err by ordering the return of any funds Coastline
received from the PSP to the PSP.
II.
BENNETT’S CROSS-APPEAL
A.
Bennett Was Not Entitled to an Award of Attorney Fees
Bennett argues the trial court abused its discretion by failing to award him
prevailing party attorney fees because he ultimately “succeeded in persuading the Court
to order the return of the Plan benefits.” For several reasons, Bennett was not entitled to
an award of attorney fees; although not before us, such an award to Bennett, if it had been
given, would likely have constituted an abuse of discretion under the circumstances of
this case.
First, Bennett did not request attorney fees in his motion for reconsideration
or in any other noticed motion. He first requested an award of attorney fees in his
supplemental briefing invited by the court at the July 6, 2020 hearing, which invitation
did not include a request the parties brief any issue related to attorney fees.
Second, the trial court denied Bennett’s motion for reconsideration. The
fact the trial court, on its own motion, reconsidered the March 2020 Order regarding the
PSP and ultimately found the PSP to be ERISA-compliant and thus exempt from levy,
does not entitle Bennett to award of prevailing party attorney fees. At the July 6, 2020
25
hearing, the trial court explained it was reconsidering the March 2020 Order as to the PSP
in connection with “whether the Court’s ruling might have a different impact on the
actual plan itself. I’m not as concerned with Mr. Bennett as I am concerned with how
this might affect the plan itself.”
Third, contrary to Bennett’s argument in his opening brief on cross-appeal,
Bennett did not successfully bring an action under ERISA so as to vest the trial court with
discretion to award him prevailing party attorney fees pursuant to section 1132(g) of title
29 of the United States Code, even if he had brought a noticed motion under that code
10
section. As discussed ante, Bennett first requested such an award in his supplemental
briefs filed in response to the trial court’s invitation following the announcement it was
reconsidering the March 2020 Order as to the PSP. Bennett has failed to provide
meaningful analysis supporting his contention that a request for attorney fees was made
“[i]n any action under this title” within the meaning of section 1132(g) of title 29 of the
United States Code.
“‘Appellate briefs must provide argument and legal authority for positions
taken. “When an appellant fails to raise a point, or asserts it but fails to support it with
reasoned argument and citations to authority, we treat the point as waived.’” [Citation.]
‘We are not bound to develop appellants’ arguments for them. [Citation.] The absence
of cogent legal argument or citation to authority allows this court to treat the contention
as waived.’” (See Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939,
956.)
Because Bennett has failed to address the threshold issue and explain why
attorney fees might be awarded under section 1132(g) of title 29 of the United States
Code here, given the procedural posture of this case, we do not need to consider the five
10
“In any action under this title . . . by a participant . . . the court in its discretion may
allow a reasonable attorney’s fee and costs of action to either party.” (29 U.S.C.
§ 1132(g).)
26
factors discussed in Bennett’s appellate briefs that courts have used in ERISA actions to
evaluate whether attorney fees should be awarded.
Fourth, Bennett did not appear in court when Seamount appeared ex parte
seeking to intervene given the conflicting information it had received regarding whether
to liquidate the IRA and the PSP and turn over the proceeds to the levying officer.
Notwithstanding having been provided notice, Bennett chose not to appear at the hearing
or offer supplemental briefing invited by the trial court to determine, inter alia, the proper
disposition of those assets. Not until after the March 2020 Order was issued did Bennett,
in a motion for reconsideration, first raise the issue that the PSP was a plan protected
under ERISA and was automatically exempt from levy—an issue that had not before
been brought to the court’s attention. Bennett’s failure to engage and timely raise
dispositive issues in the court’s resolution of Seamount’s motion resulted in errors and
costly delay.
Fifth, in a footnote in his opening brief on appeal, Bennett argues for the
first time in this action that the trial court should have awarded Bennett attorney fees
based on the Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code,
§ 2698 et seq.). There are many problems with this argument, but we will focus on one:
“‘“‘“[I]t is fundamental that a reviewing court will ordinarily not consider claims made
for the first time on appeal which could have been but were not presented to the trial
court.” Thus, “we ignore arguments, authority, and facts not presented and litigated in
the trial court. Generally, issues raised for the first time on appeal which were not
litigated in the trial court are waived.”’”’” (Quiles v. Parent (2018) 28 Cal.App.5th 1000,
1013.) Bennett’s argument he was entitled to attorney fees under PAGA has been
forfeited.
Sixth, the idea of awarding Bennett attorney fees here is particularly
troublesome given Bennett’s long history of thwarting discoverable information about the
PSP at his various debtor’s examination hearings and in response to subpoenas which
27
resulted in all parties incurring needless attorney fees and costs to obtain and confirm
information relevant to the lawful enforcement of the amended judgment.
In what can be described, at best, as Bennett having taken a lackadaisical
and often unresponsive approach to defending against Coastline’s enforcement of the
amended judgment, and at worst, his employing an improper strategy of gamesmanship
and delay with regard to Coastline’s efforts, Bennett should be discouraged, and not
rewarded. The trial court did not err by refusing to grant Bennett’s request for an award
of attorney fees in this case.
B.
The Trial Court Did Not Abuse its Discretion by Denying Bennett’s
Motion to Tax Costs
1.
Governing Legal Principles and Standard of Review
Section 685.040 provides: “The judgment creditor is entitled to the
reasonable and necessary costs of enforcing a judgment. Attorney’s fees incurred in
enforcing a judgment are not included in costs collectible under this title unless otherwise
provided by law. Attorney’s fees incurred in enforcing a judgment are included as costs
collectible under this title if the underlying judgment includes an award of attorney’s fees
to the judgment creditor pursuant to subparagraph (A) of paragraph (10) of subdivision
(a) of Section 1033.5.” Here, the amended judgment included an award of attorney fees
to the judgment creditor.
Section 685.070 provides a judgment creditor may claim enumerated
postjudgment enforcement costs specified in subdivision (a) by filing a memorandum of
costs pursuant to subdivision (b), or by noticed motion under section 685.080,
subdivision (a). Here, after the court issued the March 2020 Order, Coastline filed an
amended memorandum of costs.
28
“‘The standard of review on issues of attorney’s fees and costs is abuse of
discretion. The trial court’s decision will only be disturbed when there is no substantial
evidence to support the trial court’s findings or when there has been a miscarriage of
justice. If the trial court has made no findings, the reviewing court will infer all findings
necessary to support the judgment and then examine the record to see if the findings are
based on substantial evidence.’” (Frei v. Davey (2004) 124 Cal.App.4th 1506, 1512.)
We similarly review the denial of a motion to tax costs for abuse of
discretion. (Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 52.) “‘The trial
court’s exercise of discretion in granting or denying a motion to tax costs will not be
disturbed if substantial evidence supports its decision.’” (Ibid.)
2.
The Trial Court’s Ruling
In the September 2020 minute order, the trial court explained its reasons for
denying Bennett’s motion to tax the costs claimed by Coastline as follows:
“‘The “experienced trial judge is the best judge of the value of professional
services rendered in his [or her] court, and while his [or her] judgment is of course
subject to review, it will not be disturbed unless the appellate court is convinced that it is
clearly wrong.’” [Citation.] ‘Under the lodestar method, the trial court must first
determine the lodestar figure—the reasonable hours spent multiplied by the reasonable
hourly rate—based on a careful compilation of the time spent and reasonable hourly
compensation of each attorney involved in the presentation of the case.’ [Citation.] ‘The
reasonable hourly rate is that prevailing in the community for similar work.’ [Citation.]
‘“[A] reasonable hourly rate is the product of a multiplicity of factors . . . the level of skill
necessary, time limitations, the amount to be obtained in the litigation, the attorney’s
reputation, and the undesirability of the case.”’ [Citation.]
29
“Here, judgment creditor billed at the following rate: Hal Goldfalm, Esq.:
$455.00; Brad Becker, Esq.: $385.00; Ronnie Auceda, Esq.: $210.00. Plaintiff did not
challenge these rates. They appear to be standard in the community.
“Moreover, the hours spent appear reasonably necessary to the enforcement
of the judgment. This case has been pending for nearly a decade. Both sides have
vigorously litigated the issues. A party ‘“cannot litigate tenaciously and then be heard to
complain about the time necessarily spent by the plaintiff in response.”’ [Citation.]
“‘In challenging attorney fees as excessive because too many hours of work
are claimed, it is the burden of the challenging party to point to the specific items
challenged, with a sufficient argument and citations to the evidence. General arguments
that fees claimed are excessive, duplicative, or unrelated do not suffice.’ [Citation.]
“Judgment debtor’s main opposition to the attorney fees is that the attorney
fees incurred to recover funds from the PSP and SEP-IRA was improper and
unnecessary. Although the court ultimately reconsidered its ruling allowing recovery
from the PSP, it upheld its ruling regarding the SEP-IRA. Moreover, the issues regarding
propriety of levying on the PSP were not as straightforward as judgment debtor contends.
The issues were novel and complex. Accordingly, the court denies the judgment debtor’s
motion to tax.”
3.
The Trial Court’s Findings Were Supported by the Record and the Court Did Not
Otherwise Abuse Its Discretion
Bennett does not argue the trial court applied the wrong law or made factual
findings unsupported by the record. Instead, he argues the trial court’s ruling shows the
court “did not fully recognize the unreasonableness of specifically allowing Coastline
costs spent to bully Seamount and illegally garnish funds from the ERISA Plan,”
although Coastline “knew or should have known that its garnishment of pension plan
assets violates ERISA.”
30
The trial court’s rejection of this argument is supported by the record. No
party in this case brought the issue of the PSP being automatically exempt as a potential
ERISA-qualified plan to the court’s attention until Bennett raised it in his motion for
reconsideration. Nothing in the record shows that before filing his motion for
reconsideration, Bennett raised this issue to Coastline, Seamount, or any other party,
perhaps because he too did not appreciate that the PSP was an ERISA-compliant plan, a
fact that was dispositive on whether it was subject to levy. Bennett’s argument that the
motion to tax costs should have been granted because Coastline knew or should have
known its enforcement efforts violated ERISA is without merit, in spite it of having
received a copy of the PSP Basic Plan Document at some point in time.
Bennett also argues Coastline “sought unspecified attorney’s fees and costs
for the period of September 1, 2019 through April 30, 2020, relating to its efforts to
unlawfully garnish assets of the PSP—actions by Coastline’s counsel that were both
unreasonable and unnecessary, as the retirement assets are unequivocally protected from
creditors by federal and state law and the accounts that were the subject of the levy were
not in the possession, custody, or control of Seamount.”
The trial court expressly rejected Bennett’s assertion that Seamount did not
have control of the IRA and the PSP with regard to the notice of levy, an argument
renewed in Bennett’s appellate opening brief. With regard to that argument, at the July 6,
2020 hearing on Bennett’s motion for reconsideration, the trial court stated: “I just don’t
find a lot of merit to that at all. [¶] Certainly, Seamount had control because if they
didn’t have control to some extent, the funds would never have been distributed. So, I’m
not going into that.” The appellate record supports the court’s finding that Seamount was
in a position to liquidate Bennett’s interest in those assets and effected such a liquidation.
At his debtor’s examination, Bennett himself identified Seamount as the controlling
entity with regard to the IRA and the PSP. Seamount never claimed it lacked such
authority. In any event, if Seamount had not had the authority to liquidate those assets
31
and deliver them to the levying officer, there would have been no need for it to appear ex
parte seeking leave to file a motion to intervene and obtain the court’s order as to the
proper disposition of those assets.
Furthermore, the trial court did not abuse its discretion in concluding the
factual and legal questions relevant to determining whether the PSP was exempt from
levy pursuant to ERISA, including the resolution of related federal preemption issues,
were sufficiently novel and complex to justify Coastline incurring the costs it claimed.
Although the trial court ultimately concluded that the PSP was an ERISA-compliant
pension plan that was not subject to California’s Enforcement of Judgments Law,
Coastline was entitled to recover its reasonable and necessary costs incurred in resolving
exemption issues in an effort to attempt to enforce the amended judgment. (§ 685.040.)
Nothing in our record shows that Coastline attempted to levy the PSP with knowledge
that it was automatically exempt from levy under ERISA and California law.
We have otherwise reviewed the record and find nothing to suggest the trial
court’s cost award, including attorney fees, or its denial of Bennett’s motion to tax costs,
constituted an abuse of discretion.
C.
Bennett Forfeited His Challenge to the Court’s Ruling on the IRA by Failing to Appeal
from the March 2020 Order
Finally, Bennett argues the trial court erred by denying his motion to
reconsider the March 2020 Order as to the IRA because he “was entitled to an evidentiary
hearing to determine the extent that the funds in his SEP-IRA were exempt as necessary
for his support when he retires.” At the July 6, 2020 hearing, the court stated it would not
reconsider the March 2020 Order as to the IRA, notwithstanding Bennett’s claim that it
contained funds from the PSP: “I’m not going to consider whether respect to the IRA,
and not allow any additional briefing. [Sic.] My order is final with respect to that. That
is something on an IRA that it is the burden—that is certainly something that the
32
judgment-debtor needs to file a timely claim, because it is a different test—first of all, he
has to show that it was actually rolled over. He didn’t. And from the profit-sharing plan,
he has to trace it. And also, once it turns into the IRA, it loses its ERISA exempt status.
So, the Court is not inclined to address that issue.” The parties agree that Bennett had
until August 26, 2020, to appeal from the March 2020 Order. Orders denying motions
for reconsideration are not appealable. (Powell v. County of Orange, supra, 197
Cal.App.4th at p. 1576.)
If Bennett believed the trial court erred regarding its ruling on the IRA, or
that the court erred by failing to hold an evidentiary hearing to determine the extent assets
in the IRA were exempt before ordering their disbursement to Coastline in the March
2020 Order, he had the option of challenging the court’s ruling on the IRA by appealing
from the March 2020 Order. Bennett did not file an appeal and thus is foreclosed from
appellate review of that issue. (See In re Baycol Cases I & II (2011) 51 Cal.4th 751, 761,
fn. 8 [“California follows a ‘one shot’ rule under which, if an order is appealable, appeal
must be taken or the right to appellate review is forfeited”]; Pfeifer v. John Crane, Inc.
(2013) 220 Cal.App.4th 1270, 1315-1316 [if a judgment or order is appealable, an
aggrieved party must file a timely appeal or forever lose the opportunity to obtain
appellate review].)
To the extent Bennett argues the trial court erred by not reconsidering the
ruling on the IRA in its September 2020 Order, the argument is without merit. By the
time the court issued the September 2020 Order, the time to appeal the court’s ruling on
the IRA had passed. So even assuming for the purpose of argument Bennett had a viable
argument challenging the court’s prior ruling on the IRA, a trial court generally may not
correct judicial error in an appealable order or judgment after the time to appeal has
passed. (City of San Diego v. Superior Court (1950) 36 Cal.2d 483, 487; Raisin
Investment Co. v. Magginetti (1952) 109 Cal.App.2d 163, 164; see Hamilton v. Laine
(1997) 57 Cal.App.4th 885, 890.)
33
As Bennett failed to timely appeal the portion of the March 2020 Order
regarding the disposition of the IRA, his right to appellate review of that issue has been
forfeited.
DISPOSITION
The postjudgment order is affirmed. In the interests of justice, neither party
shall recover costs on appeal.
MARKS, J.*
WE CONCUR:
O’LEARY, P. J.
BEDSWORTH, J.
*Judge of the Orange Super. Ct., assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
34