The Mechanics Bank v. Kontrabecki CA1/1

Filed 10/10/14 The Mechanics Bank v. Kontrabecki CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE MECHANICS BANK, Plaintiff and Respondent, A139531 v. JOHN T. KONTRABECKI et al., (San Francisco County Super. Ct. No. CGC11509788) Defendants and Appellants.

INTRODUCTION Plaintiff The Mechanics Bank (Bank) obtained a money judgment against defendants John T. Kontrabecki and the JTK Trust. The Bank thereafter levied a writ of execution on approximately $2.8 million held in a deposit account maintained by Boston Private Bank & Trust Company (Boston Private). Defendants objected, claiming the monies levied on were statutorily exempt from execution as proceeds of a “private retirement plan” under section 704.115 of the Code of Civil Procedure (section 704.115). After taking evidence, the trial court denied defendants’ claim of exemption. We affirm. FACTUAL BACKGROUND AND PROCEDURAL HISTORY Defendants and TKG California I, LLC (TKG)1 guaranteed repayment of a loan made by the Bank to Tri-Valley Vineyards, LLC (Tri-Valley) pursuant to written commercial guaranties that they executed in favor of the Bank. After the loan to Tri-

1 Kontrabecki is president of The Kontrabecki Group Inc., which is the managing member of TKG. 1

Valley went into default, the Bank made a demand for payment on defendants for the amounts owed under their commercial guaranties. On April 1, 2011, the Bank filed a complaint for breach of written guaranty against defendants and TKG. The Bank sought the principal sum of $2,175,902.58 plus accrued interest, late charges, attorneys’ fees and costs, and other fees and costs due. On April 25, 2012, the trial court granted the Bank’s motion for summary judgment. On August 6, 2012, an amended judgment was entered against defendants in excess of $3,500,000. On April 8, 2013, the trial court issued a writ of execution against defendants for $3,811,026. On April 12, 2013, the Bank levied a writ of execution on Boston Private on all accounts in the name of defendants. On April 24, 2013, defendants filed a claim of exemption. They sought to exempt from levy $2,977,961.88 in cash on deposit in an account at Boston Private standing in the name of the JTK Trust. Among the claims for exemption, defendants asserted the funds were the principal of a private retirement plan exempt under section 704.115. On May 8, 2013, the Bank filed its opposition to the claims of exemption. On June 10, 2013, the trial court issued an amended order denying defendants’ claims of exemption. This appeal followed. DISCUSSION I. Standard of Review “Orders granting or denying a claim of exemption are appealable. [Citation.] A judgment or order of the trial court is presumed correct, and must be upheld if it is supported by substantial evidence, no matter how slight it may be. [Citation.] Further, all evidence must be viewed in the light most favorable to the prevailing party, and all conflicts in evidence or in inferences must be resolved in favor of upholding the trial