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Fallay v. City and County of San Francisco

United States District Court, N.D. California

November 6, 2017

AUGUSTINE FALLAY, Plaintiff,
v.
CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants.

          ORDER DENYING MOTION FOR WITHHOLDING ORDER RE: DKT. NO. 257

          JOSEPH C. SPERO, CHIEF MAGISTRATE JUDGE.

         I. INTRODUCTION

         Defendants 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.

         II. BACKGROUND

         This 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. 266).

         Recognizing 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. Id.

         On 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 ...

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