United States District Court, E.D. California
ORDER RE: MOTION FOR ASSIGNMENT ORDER
WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE.
September 12, 2016, the court ordered defendant California
Guild (“Guild”) to pay plaintiff National Grange
of the Order of Patrons of Husbandry $144, 715.70 in
attorneys' fees (“fees order”). (Sept. 12,
2016 Order (Docket No. 154).) Plaintiff now moves for an
order assigning it the right to collect payments due to
defendant from its local chapters to satisfy the court's
fees order. (Pl.'s Mot. (Docket No. 178.)
brought this action against defendant for trademark
infringement, false designation of origin, and unfair
competition under the Lanham Act. (Compl. (Docket No. 1).)
The court granted summary judgment to plaintiff on July 14,
2015, (July 14, 2015 Order (Docket No. 60)), and enjoined
defendant “from using marks containing the word
‘Grange'” on September 29, 2015
(“September 2015 order”), (Sept. 29, 2015 Order
(Docket No. 85)).
April 20, 2016, the court found defendant in
“deliberate and willful” violation of the
September 2015 order (“April 2016 order”). (Apr.
20, 2016 Order (Docket No. 138).) Pursuant to 15 U.S.C.
§ 1117(a), the court awarded plaintiff attorneys'
fees incurred from various motions and affidavits it had
filed for the purpose of enforcing the September 2015 order.
(See Id. at 38-39.)
September 12, 2016, the court determined the amount of fees
awarded under the April 2016 order to be $144, 715.70. (Sept.
12, 2016 Order at 23.) The court ordered defendant to pay
plaintiff the fees awarded and “file an affidavit with
the court confirming payment within fourteen (14) business
September 19, 2016, defendant filed a declaration stating
that it “is unable to comply with the [court's]
Fee[s] Order” because “[m]ost of the funds [it
holds] are subject to a preliminary injunction issued in [a]
State Court Action” the parties are involved in. (Decl.
of Robert McFarland (“McFarland Decl.”)
¶¶ 2, 4 (Docket No. 155).) Plaintiff claims, and
defendant does not dispute, that defendant has not paid any
portion of the court's fees order to date. (Pl.'s
Mot., Mem. (“Pl.'s Mem.”) at 4 (Docket No.
178-1); McFarland Decl. ¶ 2.)
now moves for an order assigning it the right to collect
“all payments due or to become due to defendant”
from eighty-three of its local chapters to satisfy the
court's fees order. (Pl.'s Mot. at 1.)
Rule of Civil Procedure 69(a)(1) provides that proceedings in
aid of judgment or execution must comply with the law of the
state where the court is located. Fed.R.Civ.P. 69(a)(1);
Credit Suisse v. U.S. District Court, 130 F.3d 1342,
1344 (9th Cir. 1997). Under California Civil Procedure Code
section 708.510 (“section 708.510”), “the
court may order the judgment debtor to assign to the judgment
creditor . . . all or part of a right to payment due or to
become due, whether or not the right is conditioned on future
developments . . . .” Cal. Civ. Proc. Code §
708.510(a); Peterson v. Islamic Republic of Iran,
627 F.3d 1117, 1130-31 (9th Cir. 2010).
considering whether to issue an assignment order under
section 708.510, the court “may take into consideration
all relevant factors, ” including “the reasonable
requirements of the judgment debtor who is a natural person,
” other “[p]ayments the judgment debtor is
required to make, ” “the amount remaining due on
the money judgment, ” and “[t]he amount being
received or to be received in satisfaction of the right to
payment that may be assigned.” Cal. Civ. Proc. Code
§ 708.510(c); Choice Hotels, Int'l, Inc. v.
Dostel Corp., M.C. No. 2:11-45 WBS GGH, 2013 WL 1324280,
at *1 (E.D. Cal. Apr. 2, 2013). While a motion for an
assignment order does not demand “[d]etailed
evidentiary support, ” Choice Hotels, 2013 WL
1324280, at *1, a judgment creditor must describe the source
of the right to payment with “some degree of
concreteness, ” Icho v. Packet Switch.com,
Inc., Civ. No. 01-20858 LHK PSG, 2012 WL 4343834, at *2
(N.D. Cal. Sept.21, 2012).
identifies two types of payments made by defendant's
local chapters to defendant: (1) membership dues, and (2)
loan payments. (Pl.'s Mem. at 1.)
respect to membership dues, plaintiff represents that local
chapters paid dues to defendant in 2016 and “are
expected to continue to pay dues to [defendant]” going
forward. (Decl. of Holly Lance (“Lance Decl.”)
¶¶ 3-4 (Docket No. 178-2).) Defendant does not
dispute that it received dues in 2016 and will continue to
receive dues going forward. (See McFarland Decl. ¶¶
5, 8 (stating that defendant received “$14, 259.64 in
membership dues” for the previous quarter and referring
to dues as a “continuing source of income” for
defendant).) Defendant's bylaws confirm that the dues
defendant receives are paid by local chapters. (See Pl.'s
Reply Ex. A, Cal. Guild Bylaws ¶ 10.3 (Docket No.
181-1).) The dues paid by defendant's local chapters to
defendant are a sufficiently concrete source of payment to
justify an assignment order.
respect to loan payments, plaintiff represents that four of
the eighty-three local chapters listed in its Motion
“are making regular loan payments to
[defendant].” (Lance Decl. ¶ 5.) Defendant does
not dispute that it received loan payments from local
chapters in 2016, (see McFarland Decl. ¶ 7), but opposes
the assignment of future loan payments on grounds that there
is currently a preliminary injunction in the parties'
state court action requiring that such payments be
“paid into escrow, ” (see Def.'s Opp'n at
2 (Docket No. 180)).
correctly notes, however, that the state court injunction is
limited to payments made pursuant to loans that originated on
or prior to April 5, 2013, when the parties split off from
each other. (See Pl.'s Reply at 2-3 (Docket No. 181);
Def.'s Opp'n Ex. 1, State Ct. Prelim. Inj. Order at
1-2 (Docket No. 180).) Plaintiff has provided copies of
promissory notes indicating that defendant made loans to
local chapters after April 5, 2013. (See Pl.'s Reply Ex.
B, Promissory Notes (Docket No. 181-1).) Plaintiff only seeks
assignment of payments made pursuant to post-April 5, 2013
loans. (Pl.'s Reply at 2.) Because defendant has provided
no evidence indicating that payments made pursuant to
post-April 5, 2013 loans are subject to any encumbrance, the
court finds that such payments are also sufficiently concrete
to justify an assignment order.
factors set forth in section 708.510(c) indicate that an
assignment order is proper here. Defendant has not paid any
part of the court's $144, 715.70 fees order to date and
has not alerted the court to any judgments or assignments,