News & Publications

There is seldom a dull moment...

01

Ninth Circuit Points to November Argument

July 26, 2017

​The Ninth Circuit has advised it will hear oral argument in November on an appeal addressing a claimed California homestead exemption.   It's tough to say where the Court will go because the Magic 8-Ball is saying "Reply hazy, Try again."  A decision might address pre-emption; state property law; the concept of timeliness under Federal Rule of Civil Procedure 60(c); or the contours of the 2014 Supreme Court decision in Law v. Siegel.   Stay tuned.​

02

Bankruptcy Court told Cap Punishment Unlawful

July 19, 2017

The bankruptcy judge has a problem.  A debtor claimed to be disabled so he could get a larger homestead exemption.  The debtor testified at the meeting of creditors that he had cancer, but his medical records said no such thing.  The trial judge would not allow a motion for summary judgment, forcing an expensive trial in which the debtor was predictably found not to be disabled.   Now the judge seems to be looking for a means to limit a creditor fee award caused in part by her own decisions.  Among other things, she has asked for a supplemental brief on whether fees can be capped by somehow relating them to the value of an exemption claim.   Through a supplemental memorandum we have advised the judge "cap punishment" is not permitted.   The so-called "lodestar method" was specifically adopted to prevent judges from indulging such fantasies.  We believe she should instead be passing out "Darwin Awards" to attorneys and clients who apparently think there is no cost to litigation.   ​

03

State Appellate Court asked to  "Educate the Trial Judges"

July 12, 2017

In a brief filed July 12, 2017, the Third District Court of Appeal has been asked to enlighten the trial bench on the breadth of the "lien in a pending action" procedure for enforcing judgments under California's Enforcement of Judgments Law.   The California Code of Civil Procedure used to allow judgment creditors to file a motion to request a court impose a lien on a judgment debtor-plaintiff's cause of action.   The California Law Revision Commission scrapped that narrow, cumbersome approach in 1982.  Now the lien is created automatically upon the filing of a compliant notice; the judgment debtor can be a defendant in the case; and the lien will extend to "any judgment" giving rise to a right to money or property in the judgment debtor.   A judge in the Sacramento Superior Court decided an order that a defendant pay $ 17K to a judgment debtor was not a "judgment" to which such a lien would attach because it was only a "refund."  We have begged to differ:  money is money and the ordered refund, we say, was obviously a "money judgment" to which a noticed lien would attach.  ​