Perlman Law, Inc. v. Sara Hart CA2/3

Filed 1/14/21 Perlman Law, Inc. v. Sara Hart CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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

SECOND APPELLATE DISTRICT

DIVISION THREE

PERLMAN LAW, INC., B294288

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC640412)
v.

SARA HART,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Edward Moreton, Jr., Judge. Affirmed.
Sara Hart, in pro. per; and Afshin Siman, for Defendant
and Appellant.
Manahan Flashman & Brandon and David M. Brandon for
Plaintiff and Respondent.

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 Appellant Sara Hart (Hart) appeals an order denying her
claim of exemption filed in response to a levy on several of her
bank accounts. Hart’s primary contention on appeal is that the
trial court erred in denying her claim of exemption because the
funds levied on were Social Security payments, and thus were
exempt from execution or levy pursuant to Code of Civil
Procedure section 704.080 and 42 United States Code section
407, subdivision (a). We conclude that Hart failed to establish
that the funds at issue were Social Security payments, and thus
we affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Hart and her son, Guy Hart (Guy),1 are former clients of
respondent Perlman Law, Inc. (Perlman). In 2016, Perlman filed
a complaint against Hart and Guy alleging nonpayment of legal
fees, and on October 18, 2017, the court entered a default
judgment in favor of Perlman and against Hart and Guy in the
amount of $50,075.
In March 2018, pursuant to a writ of execution, $47,975
was seized from bank accounts held by Hart and/or Guy at
Bank of America and Chase Bank. Thereafter, Hart executed a
claim of exemption (Judicial Council Form EJ-160), in which she
asserted that the funds seized from her Bank of America accounts
were exempt pursuant to 42 United States Code section 407 and
Code of Civil Procedure2 sections 704.080 and 704.110, which

1 Appellant’s opening brief identifies both Hart and Guy as
appellants. However, only Hart filed a notice of appeal, and thus
she is the sole appellant.
2 All subsequent undesignated statutory references are to
the Code of Civil Procedure.

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exempt Social Security and public retirement benefits from levy.
In line 6 of her claim, Hart stated as follows: “The facts which
support this claim are . . . : I was not notified or served.
Violation of due process. 78 year old tricked and abused (Elder
Abuse).”
Perlman opposed Hart’s claim of exemption. Perlman
asserted that Hart had provided no evidence that the funds
seized were Social Security or public retirement benefits; thus,
Hart failed to meet her burden of proving an entitlement to an
exemption. Alternatively, Perlman asked for the opportunity to
conduct discovery concerning the sources of the funds in Hart’s
bank accounts.
Hart filed a response to Perlman’s opposition on July 6,
2018. Hart asserted that the funds in her Bank of America
account ending in 7230 were Social Security direct deposits,
which were exempt under federal law. In support, Hart
submitted her own declaration, which was not signed under
penalty of perjury and did not specifically address the source of
the funds in the Bank of America account. In relevant part, the
declaration stated: “Up until approximately September 2017,
I did have some supplemental income up until last year which
stopped last year. During that time I did not use all of my Social
Security funds but that stopped and now I need all of the funds
that I had and have from Social Security and more to cover my
monthly expenses which are over $5,000 per month for food,
shelter, gas, insurance, medical and other daily necessities.”
Attached to Hart’s declaration were several
unauthenticated exhibits. Exhibit A to the declaration appeared
to be a May 30, 2018 letter from the Social Security
Administration stating that Hart received monthly Social

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Security benefits of $1,312, which were deposited into her
account ending in 7230. Exhibit B to the declaration appeared to
be a bank statement, dated May 18, 2018, which showed monthly
deposits from the “SSA Treas[ury]” into an account ending in
7230; all other entries were redacted.
The court held a hearing on Hart’s exemption claim on
October 5, 2018.3 After hearing argument, the court ruled as
follows: “[T]he judgment debtors have the burden of proof. . . .
The request [for an exemption] must be denied because there’s no
evidence submitted to this court of their claims other than their
mere declaration . . . and heavily redacted bank statements
reflecting deposits but not establishing what the claimants claim
they establish. [¶] They also allege that the judgment should not
have been entered. But this is not a basis for a claim of
exemption. Because the judgment debtors have not met their
burden, the claims of exemptions are denied.” Perlman served
notice of ruling on October 9, 2018.
DISCUSSION
Hart contends the trial court erred by denying her claim for
exemption, urging that she submitted “sufficient bank deposit
documentation” to establish that the seized funds were Social
Security payments. For the reasons that follow, the claim is
without merit.4

3 Prior to the hearing, Guy appeared ex parte and sought a
continuance on the ground that Hart had been in the hospital the
day before. The trial court denied the request.
4 Hart also contended at oral argument that the trial court
violated her due process rights by failing to grant a continuance
of the October 5, 2018 hearing. Because this issue is not properly

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 I.
Appealability
We begin with the question of appealability. An order
granting or denying a claim of exemption is appealable pursuant
to section 703.600. However, Hart’s notice of appeal states that
appeal is taken from a “default judgment” entered October 5,
2018, not from an order denying a claim of exemption. A default
judgment was not entered in this case on October 5, 2018; the
only substantive order entered by the court on October 5, 2018
concerned Hart’s exemption claim.
“Generally, we must liberally construe a notice of appeal in
favor of its sufficiency. [Citation.] A notice of appeal shall be
‘ “liberally construed so as to protect the right of appeal if it is

before us, we do not consider it. Hart addressed this issue in her
appellant’s opening brief only in the statement of facts, not in the
legal argument; and although she contended in her appellant’s
reply brief that the failure to continue the hearing was a violation
of her right to due process, she did not cite any legal authority in
support. Accordingly, the issue has been forfeited. (Cal. Rules of
Court, rule 8.204(a)(1)(B) [on appeal, a party must “[s]tate each
point under a separate heading or subheading summarizing the
point, and support each point by argument and, if possible, by
citation of authority”]; Badie v. Bank of America (1998)
67 Cal.App.4th 779, 784–785 [“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 [forfeited]”];
United Grand Corp. v. Malibu Hillbillies, LLC (2019)
36 Cal.App.5th 142, 158 [“ ‘Fairness militates against allowing an
appellant to raise an issue for the first time in a reply brief
because consideration of the issue deprives the respondent of the
opportunity to counter the appellant by raising opposing
arguments about the new issue’ ”].)

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reasonably clear what [the] appellant was trying to appeal from,
and where the respondent could not possibly have been misled or
prejudiced.” ’ ” (In re J.F. (2019) 39 Cal.App.5th 70, 75.) Because
it is “reasonably clear” that Hart intended to appeal from the
October 5, 2018 order denying her claim of exemption, we shall
construe Hart’s appeal as from that order.
II.
Substantial Evidence Supported the Order
Denying Hart’s Exemption Claim
A. Legal Principles and Standard of Review
“ ‘As a general rule, all property of a judgment debtor is
subject to enforcement of a money judgment. [Citations.] The
California Constitution, however, requires the Legislature to
protect “a certain portion” of a debtor’s property from forced sale.
(Cal. Const., art. XX, § 1.5.) 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 described in
[Code of Civil Procedure] 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. . . .
“In addition to the exemptions set forth in sections 704.010
through 704.210, ‘[a]dditional exemptions are provided by other
California statutes and by federal law.’ (Ahart, Cal. Practice

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Guide: Enforcing Judgments and Debts (The Rutter Group 2014)
¶ 6:821, p. 6E-1 (rev. # 1, 2013).) As pertinent to this case, Social
Security payments are exempt from execution or levy under
42 United States Code section 407(a), which provides: ‘In
general. [¶] The right of any person to any future payment
under this subchapter [(which includes a portion of the Social
Security Act)] shall not be transferable or assignable, at law or in
equity, and none of the moneys paid or payable or rights existing
under this subchapter shall be subject to execution, levy,
attachment, garnishment, or other legal process, or to the
operation of any bankruptcy or insolvency law.’ (Italics added &
boldface omitted; see Conservatorship of Lambert (1983)
143 Cal.App.3d 239, 242, [42 United States Code section 407
‘immunizes social security income from “execution, levy,
attachment, garnishment, or other legal process” ’]; Lopez v.
Washington Mutual Bank, FA (9th Cir. 2002) 302 F.3d 900, 903
[‘Section 407(a) was designed “to protect social security
beneficiaries and their dependents from the claims of
creditors . . . .” ’].)” (Kilker v. Stillman (2015) 233 Cal.App.4th
320, 329–330.)
The procedure for adjudicating an exemption claim is as
follows. After a debtor’s property has been levied upon, the
debtor may file with the levying officer a claim of exemption,
which shall include a description of the property, a citation to the
provision on which the exemption claim is based, and a statement
of the facts necessary to support the claim. (§ 703.520.) The
creditor then may file opposition to the claim of exemption with
the court. (§§ 703.550, 703.560.) Within 30 days, the trial court
shall hold a hearing on the debtor’s claim. (§ 703.570.) At the

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hearing, “the exemption claimant has the burden of proof.”
(§ 703.580, subd. (b).)
On appeal, the order granting or denying the exemption
claim “is presumed correct, and must be upheld if it is supported
by substantial evidence.” (Schwartzman v. Wilshinsky (1996)
50 Cal.App.4th 619, 626; see also Series AGI West Linn of Appian
Group Investors DE, LLC v. Eves (2013) 217 Cal.App.4th 156,
163.)
B. Analysis
In the present case, the record supports the trial court’s
conclusion that Hart failed to establish that the seized funds
were Social Security payments. As we have described, the only
“evidence” before the trial court concerning the source of the
seized funds was Hart’s declaration, which she did not sign under
penalty of perjury, and a bank statement and letter from the
Social Security Administration, which were not authenticated.
Because the declaration was not signed under penalty of perjury,
and the bank statement and letter were not authenticated, they
do not have any evidentiary value. (See, e.g., ViaView, Inc. v.
Retzlaff (2016) 1 Cal.App.5th 198, 217 [declaration that was not
signed under penalty of perjury as required by § 2015.5 “had no
evidentiary value”]; Kulshrestha v. First Union Commercial Corp.
(2004) 33 Cal.4th 601, 601–611 [declaration that does not comply
with § 2015.5 is not sufficiently reliable to be admitted into
evidence]; Davis v. Nadrich (2009) 174 Cal.App.4th 1, 12
[unauthenticated document “is totally without evidentiary
value”]; People v. Beckley (2010) 185 Cal.App.4th 509, 517−518
[same].) The declaration, letter, and bank statement, thus, did
not satisfy Hart’s burden to establish an exemption.

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 In any event, even if the declaration and documents had
some limited evidentiary value, as a matter of law they still could
not have satisfied Hart’s burden of proof. Hart’s declaration did
not reference the bank account at issue, and it did not
affirmatively state that the account contained only Social
Security payments. To the contrary, the declaration stated that
Hart “did have some supplemental income up until last year.”
(Italics added.)
The bank statement is similarly unhelpful to Hart. As the
trial court noted, the bank statement was “heavily redacted”—
indeed, Hart had blacked out references to all deposits and
withdrawals other than those from “SSA Treas.” Accordingly, all
that appears from the bank record is that Social Security
payments were deposited into the account to which the statement
pertains. We cannot determine, however, whether any of the
funds in the account were from other sources, or whether Hart’s
Social Security income had been withdrawn from the account
before it was levied upon. As such, Hart’s submission did not
establish that some or all of the seized funds were Social Security
payments.5
Although Hart contends on appeal that the trial court erred
in denying her claim of exemption because she provided the court

5 Hart appears to have included an unredacted copy of the
bank statement in a supplemental appendix filed with her
appellant’s reply brief. Because the document was not before the
trial court, we do not consider it. (See In re Zeth S. (2003)
31 Cal.4th 396, 405 [“It has long been the general rule and
understanding that ‘an appeal reviews the correctness of a
judgment as of the time of its rendition, upon a record of matters
which were before the trial court for its consideration’ ”].)

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with “sufficient bank deposit documentation,” she cites no
authority for the proposition that her heavily redacted,
unauthenticated bank records were sufficient to satisfy her
burden of proof. Instead, her authority supports only the
propositions that Social Security payments are exempt from levy,
and that exemptions should be liberally construed in favor of the
debtor. While we have no quarrel with these general principles,
they simply have no application here, where Hart failed to
provide the court with sufficient evidence to support her
exemption claim.
Hart also contends that the trial court erred in denying her
claim of exemption because the underlying default judgment
should not have been entered against her. Whatever the merits
of Hart’s claim regarding the judgment, they are not properly
before us in this enforcement action. (E.g., Consumer Advocacy
Group, Inc. v. ExxonMobil Corp. (2008) 168 Cal.App.4th 675, 683
[when a court has fundamental jurisdiction over the subject
matter and parties, “its judgment should be challenged directly
and is generally not subject to collateral attack”]; County of Los
Angeles v. Harco National Ins. Co. (2006) 144 Cal.App.4th 656,
662 [alleged errors in judgment “should be challenged directly,
for example by motion to vacate the judgment, or on appeal, and
are generally not subject to collateral attack once the judgment is
final”].) We thus do not consider them.

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 DISPOSITION
The order denying Hart’s claim of exemption is affirmed.
Perlman’s request for judicial notice is denied because the
document as to which judicial notice is sought is not relevant to
our decision. (People ex rel. Lockyer v. Shamrock Foods Co.
(2000) 24 Cal.4th 415, 422, fn. 2.) Perlman is awarded its
appellate costs.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS

EDMON, P. J.

We concur:

LAVIN, J.

DHANIDINA, J.

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