United States District Court, N.D. California
ORDER DENYING MOTION FOR WITHHOLDING ORDER RE: DKT.
C. SPERO, CHIEF MAGISTRATE JUDGE.
and judgment creditors First American Specialty Insurance
Company, Cindy Lloyd, and Robert Dalton (collectively,
"FASIC") move for issuance of a withholding order
against the earnings of Zainab K. Fallay to satisfy a
judgment against her spouse, Plaintiff Augustine Fallay. The
case has been referred to the undersigned magistrate judge
for issues of post-judgment collection. See 1st
Order of Reference (dkt. 219); 2d Order of Reference (dkt.
276). The Court held a hearing on August 25, 2016, and
thereafter took supplemental briefing. For the reasons
discussed below, the motion is DENIED.
order assumes the parties‘ familiarity with the long
history of this case and FASIC‘s attempts to collect
its judgment against Augustine Fallay. Following briefing by
FASIC and Augustine Fallay on the present motion, Zainab
Fallay submitted a letter to the Court stating that she and
her husband had separated, and noted that the recent death of
their son-a United States military veteran who committed
suicide after an honorable discharge-left her in a state
where she did not feel she could attend hearings in this case
at that time. See July 13, 2017 Letter (dkt. 263).
The Court continued the hearing to August 25, 2016, at which
time Augustine Fallay and counsel for FASIC appeared, but
Zainab Fallay did not. See Order Continuing Hearing
(dkt. 264); Civil Minute Order (dkt. 265). FASIC filed a
letter the following week indicating that the parties were
unable to resolve the dispute and requesting that the Court
rule on the motion. See Sept. 1, 2017 Letter (dkt.
that it had misstated the law regarding separation of spouses
at the hearing, the Court issued an order to show cause on
September 1, 2017, identifying the current standard under
California law as looking no longer to whether the two
spouses are "living separately and apart, " but
instead to whether there has been "'a complete and
final break in the marital relationship, ‘" as
indicated by one spouse having "'expressed to the
other spouse his or her intent to end the
marriage‘" and exhibiting conduct consistent with
that intent. Order to Show Cause (dkt. 267) (quoting Cal.
Fam. Code § 70). Because the record at that time
contained only unsworn statements regarding the status of
Augustine Fallay and Zainab Fallay‘s marriage, however,
the Court ordered the parties to show cause why the motion
should not be granted by submitting sworn declarations.
September 19, 2017, Zainab Fallay filed a notarized response
to the order to show cause setting forth a number of facts
that she "declare[d] . . . to be true." Zainab
Fallay‘s 1st Response (dkt. 269). FASIC filed a brief
two days later arguing that Zainab Fallay‘s response
was not sworn-and thus failed to meet the instructions of the
order to show cause-and that the facts included therein
failed to demonstrate separation within the meaning of Family
Code section 70. FASIC Response (dkt. 270). Zainab Fallay
filed a revised response on September 25, 2017 including
substantially similar factual assertions, but now stating
that she "declare[s] under penalty of
perjury" the following facts to be true:
1. That we are currently separated, and were hardly on a
speaking terms until the death of our son.
2. That I know nothing about the said insurance company in
question, Mr. Fallay‘s involvement with it predated my
migration to this country from Germany in 2000.
3. Mr. Fallay has nothing to do with my work and/or my wages.
Indeed he does not even know where I work. We had a joint
account but closed it when we separated.
4. Mr. Fallay has nothing to do with money, and I have
nothing to do with his. I have my separate account.
5. I also have nothing to do with his law suit or case. I
don‘t know the nature and/or the details of it. I have
never been to his trials, except the day of his acquittal at
the state court in 2007.
6. I expect nobenefit [sic] from his law suit.
7. Yes, we live in the same house, but I sleep on the top
floor and he ...