Universal Home Improvement v. Robertson CA1/2

Filed 1/28/14 Universal Home Improvement v. Robertson CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

UNIVERSAL HOME IMPROVEMENT, INC., Plaintiff and Respondent, A138995

v. (San Mateo County JAMES ROBERTSON et al., Super. Ct. No. CIV495673) Defendants and Appellants.

INTRODUCTION Defendants and judgment debtors James and Katherine Robertson appeal from an order of the San Mateo County Superior Court, denying James’s claim of exemption from wage garnishment. Defendants contend the court erred in denying the claim of exemption of earnings necessary for the support of the judgment debtor and his family. (Code Civ. Proc., § 706.051, subd. (b).1) They contend that they complied with statutory requisites by filing the claim of exemption and financial statement (§§ 706.105, subd. (b)), that the only evidence in the record was the financial declaration of James in support of the claim of exemption, and that the court was therefore required to apply the presumption the judgment debtor fairly and honestly claimed the exemption in the absence of evidence of fraudulent purpose. Finally, defendants contend that even if plaintiff’s specific objections to particular expenditures were properly denied, they would

1 Unless otherwise indicated, statutory references are to the Code of Civil Procedure, and citation references to “Rules” are to the California Rules of Court.

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amount to only $210, so that even removing that amount, a shortfall of more than $1,800 between defendants’ income and expenses would make those items irrelevant. Plaintiff Universal Home Improvement, Inc. argues that because the record before us does not contain a reporter’s transcript of the hearing, defendants cannot challenge the sufficiency of the evidence on appeal. Plaintiff further contends defendants have waived the issues raised by this appeal by failing to first present them to the trial court. Alternatively, plaintiff argues substantial evidence supports the order denying the claim of exemption. Finally, plaintiff seeks sanctions for the filing of a frivolous appeal and for defendants’ failure to include in the record a “register of actions” required by Rules 8.122(b)(1) and 8.124(b)2.) We shall affirm the order and deny the request for sanctions. BACKGROUND On January 28, 2013,3 an amended judgment was entered in favor of plaintiff on its third amended complaint for breach of contract against defendants. The judgment awarded plaintiff a total of $5,230,014.62 (including a $40,000 punitive damages award, costs and prejudgment interest), plus $472,840.50 in attorney fees. Various proceedings in connection with enforcement of the judgment followed, including bench warrants issued for the arrest of defendants (later recalled, and then reissued) for failing to appear at examinations. On or about March 4, a writ of execution for money issued to Placer County in the amount of $5,280,190.42. On March 7, plaintiff filed a separate complaint to set aside fraudulent transfer, to establish conspiracy, and to impose constructive trust against defendant Katherine Robertson, contending that in April 2012, less than one month following trial and the initial judgment in favor of plaintiff, she had transferred her real property in Mariposa County to her sister, for no or inadequate consideration. (Universal Home Improvement,