United States District Court, N.D. California
ORDER TO SHOW CAUSE WHY MOTION FOR ISSUANCE OF
WITHHOLDING ORDER SHOULD NOT BE GRANTEDRe: Dkt. No.
C. SPERO CHIEF MAGISTRATE JUDGE
and judgment creditors First American Specialty Insurance
Company and related parties (collectively, the “FASIC
Defendants”), having obtained a judgment in their favor
against pro se plaintiff Augustine Fallay
(“Augustine”), move for issuance of a withholding
order garnishing the wages of Augustine's wife, Zainab
Fallay (“Zainab”). Augustine filed an opposition
brief, the FASIC Defendants filed a reply, and the motion was
initially set for a hearing on August 11, 2017. On July 25,
2017, Zainab filed a letter to the Court stating that she is
separated from Augustine, that she has not been involved with
this case, that she only recently received notice of the
present motion from Augustine, and that she would not be able
to attend the August 11 hearing due to the recent death of
her and Augustine's son. The Court continued the hearing
to August 25, 2017, and Augustine and counsel for the FASIC
Defendants appeared on that date, although Zainab did not.
The Court instructed the parties at the hearing to consider
whether the motion could be resolved without a ruling. On
September 1, 2017, the FASIC Defendants filed a letter
indicating that the parties were not able to reach such a
resolution and requesting that the Court rule on the motion.
In light of an error by the Court, however, fairness counsels
that the parties be given one further opportunity to submit
debts incurred during marriage can often implicate community
property, which generally includes wages of either spouse,
wages of one spouse after separation are separate
property, and as such are not subject to garnishment for the
judgment debt of another spouse. See Cal. Fam. Code
§§ 771(a), 910, 913(b)(1). The Court stated in its
July 26, 2017 order continuing the hearing, and again on the
record at the August 25, 2017 hearing, that the test for
whether spouses have separated turns on whether they are
“living separate and apart.” See Order
Continuing Hearing (dkt. 264) at 2 (purporting to quote Cal.
Fam. Code § 771(a)). Augustine indicated at the hearing
that although he and Zainab now live separate lives, they
continue to live in the same house, which suggested that they
would not meet the standard for separation as articulated by
Court's framing of the standard failed to account for a
recent amendment to the applicable statute. As of January of
this year, Family Code section 771(a) reads as follows:
“The earnings and accumulations of a spouse . . . after
the date of separation of the spouses, are the
separate property of the spouse.” Cal. Fam. Code §
771(a) (emphasis added). Family Code section 70, also enacted
in January of this year, defines the term “date of
(a) “Date of separation” means the date that a
complete and final break in the marital relationship has
occurred, as evidenced by both of the following:
(1) The spouse has expressed to the other spouse his or her
intent to end the marriage.
(2) The conduct of the spouse is consistent with his or her
intent to end the marriage.
(b) In determining the date of separation, the court shall
take into consideration all relevant evidence.
(c) It is the intent of the Legislature in enacting this
section to abrogate the decisions in In re Marriage of
Davis (2015) 61 Cal.4th 846 and In re Marriage of
Norviel (2002) 102 Cal.App.4th 1152.
Cal. Fam. Code § 70. Although likely still relevant,
whether spouses share the same residence is no longer
dispositive under this definition. The Court apologizes for
the error and regrets any confusion.
letter and Augustine's statements at the hearing provide
some indication that Zainab and Augustine might be separated
within the meaning of section 70, but the Court will not
resolve the issue on those unsworn statements, and thus does
not reach the question of whether those statements, if sworn,
would be sufficient to find a separation. To mitigate any
confusion caused by the Court's previous error, however,
the Court will allow the parties to this
dispute to file sworn declarations or other
evidence setting forth facts relevant to the status of
Augustine and Zainab's marriage no later than
September 19, 2017. Any party wishing to respond to
an opposing party's evidence may file a short brief (not
exceeding five pages) and rebuttal evidence no later
than September 29, 2017. If no party submits
cognizable evidence that Augustine and Zainab have separated,
the Court intends to grant the FASIC Defendants' motion.
Clerk is instructed to serve copies of this order by mail on
Augustine and Zainab. The FASIC Defendants are instructed to
do the same as to any response that they file.