Uzun v. Johnson CA2/1 ( 2022 )

Filed 5/19/22 Uzun v. Johnson CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
GUVEN UZUN, B312119
Judgment Debtor and (Los Angeles County
Appellant, Super. Ct. No. BC536236)
v.
RANDY JOHNSON et al,
Judgment Creditors and
Respondents.
APPEAL from an order of the Superior Court of Los
Angeles County, William Fahey, Judge. Affirmed.
Berc Agopoglu for Judgment Debtor and Appellant.
Jen Law Firm and Jerry Jen for Judgment Creditors and
Respondents.
_______________________________
Judgment creditors Randy Johnson, Playa Capital
Company, LLC, and Playa Phase 1 Commercial Land, LLC
(collectively, judgment creditors) successfully moved the trial
court for an order assigning to them judgment debtor Guven
Uzun’s rights to payments resulting from two lawsuits to which
Uzun was a party, up to an amount to satisfy a judgment against
Uzun and in favor of judgment creditors. Uzun appeals from the
assignment order, contending the trial court erroneously granted
judgment creditors’ motion without considering all relevant
factors pursuant to Code of Civil Procedure section 708.510,
subdivision (c).1 As explained below, Uzun has not demonstrated
error, and we affirm the order.
BACKGROUND
The appellate record before us does not include documents
describing the nature of the underlying dispute or litigation
between Uzun and judgment creditors. Nor does the record
include the subject judgment against Uzun and in favor of
judgment creditors. In his appellate briefing, Uzun acknowledges
that on November 22, 2016, the trial court entered a judgment
requiring him to pay judgment creditors a principal amount of
$148,197.82.
On December 30, 2020, judgment creditors filed a motion
under section 708.510 et seq., seeking an order assigning to them
Uzun’s rights to payments resulting from two lawsuits to which
Uzun was a party. As set forth in judgment creditors’ motion and
the later-issued assignment order, the two lawsuits are styled as:
Uzun v. City of Santa Monica, case No. 2:20-CV-05756-SB-MAA,
Undesignated statutory references are to the Code of Civil
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Procedure.
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filed in the United States District Court for the Central District
of California; and Uzun v. Uzun, case No. 19STFL10753, a
dissolution action filed by Uzun’s spouse in Los Angeles County
Superior Court. Judgment creditors sought an assignment of
rights to payments from these lawsuits in an amount to satisfy
the current amount of the judgment, including post-judgment
interest, fees, costs, and credits, which amount they claimed was
$158,293.44.
In their motion for an assignment order, judgment
creditors cited to exhibits attached to their counsel’s separately-
filed declaration in support of the motion. These exhibits
apparently include the subject judgment and documents
regarding the two lawsuits to which Uzun was a party and from
which judgment creditors sought an assignment of Uzun’s rights
to payments. Uzun’s appellate counsel did not designate
judgment creditors’ counsel’s declaration in support of the motion
as part of the appellate record. Thus, the declaration and
exhibits are not included in the clerk’s transcript on appeal.
Judgment creditors note this omission in their respondent’s brief
on appeal and, in his reply brief on appeal, Uzun does not dispute
that the referenced declaration is part of the trial court’s record.2
2 The Notice of Appeal and Appellant’s Notice Designating
Record on Appeal that are included in the clerk’s transcript on
appeal relate to a different case with different parties, not the
case before us. On this court’s own motion, we take judicial
notice of the Notice of Appeal, filed in this case in the trial court
on April 20, 2021, and the Appellant’s Notice Designating Record
on Appeal, filed in this case in the trial court on May 14, 2021,
which were served on judgment creditors and transmitted to this
court in the normal course of the appeal.
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In opposition to judgment creditors’ motion for an
assignment order, Uzun filed a declaration asking the trial court
not to assign to judgment creditors his rights to payments
resulting from his lawsuit against the City of Santa Monica. As
set forth above, the documents regarding this lawsuit that
judgment creditors submitted to the trial court in support of their
motion are not included in the clerk’s transcript on appeal
because Uzun’s appellate counsel did not designate them for the
record. In his declaration, Uzun stated his lawsuit against the
City of Santa Monica involved allegations of “excessive force and
unlawful arrest,” and he was “seeking recovery of past, present
and future medical damages based on the injuries [he] suffered.”
He did not describe the alleged injuries or the circumstances
under which they were suffered in his declaration. He asserted:
“I will not be gaining income as a result of the money I may
receive from the [lawsuit against the City of Santa Monica],
because any money I will receive will be to compensate for my
physical injuries. I will not be made whole, if this money is taken
away from me based on assignment order [sic].”
Uzun acknowledged in his declaration in opposition to
judgment creditors’ motion for an assignment order that the trial
court “has broad discretion in determining whether to order an
assignment,” and the “court may consider all relevant factors”
including those enumerated in section 708.510, subdivision (c),
such as the “reasonable economic needs of a natural person
judgment debtor and those supported partly or wholly by the
debtor” (as paraphrased by Uzun in his declaration). Uzun also
stated in his declaration: “I lost my medical license in 2017 and
am currently unemployed. Due to the covid-19 [sic] pandemic,
my work prospects have severely declined.” He added:
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“Currently I have four kids[,] no job and my license illegally
revoked and no family income to support family and kids [sic].”
Uzun further stated that his attorney (who is also Uzun’s counsel
in this appeal) has a lien on proceeds from Uzun’s lawsuit against
the City of Santa Monica in an undisclosed amount, and as of a
date not specified, which counsel confirmed in a one-sentence,
signed statement at the bottom of Uzun’s declaration.
Uzun did not reference the dissolution action in his
declaration, and there is no indication in the record before us that
he asked the trial court not to assign to judgment creditors his
rights to payments resulting from the dissolution action.
In their reply brief in support of their motion for an
assignment order, judgment creditors argued Uzun did not
present any evidence “to show that he has no other assets,
including multiple medical facilities, ownership in businesses,
real property savings, funds, investments, including other means
of support, nor whether [his] spouse also has income to support
the family.” Citing to an exhibit attached to judgment creditors’
counsel’s declaration (which Uzun did not designate for the
appellate record), judgment creditors stated Uzun was claiming
$52 million in damages in his lawsuit against the City of Santa
Monica, far in excess of the sum he owed judgment creditors and
for which judgment creditors were seeking an assignment of his
rights to payments. Judgment creditors also noted in their reply
brief that Uzun did not oppose an assignment to them of his
rights to payments resulting from the dissolution action.
On February 19, 2021, the trial court held a hearing on
judgment creditors’ motion for an assignment order. According to
the minute order from the hearing, both sides appeared, the court
gave an oral tentative ruling, and the court heard argument.
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After considering the parties’ papers and oral argument, the
court granted judgment creditors’ motion. The minute order
indicates there was no court reporter at the hearing. The record
on appeal does not include an agreed statement under California
Rules of Court, rule 8.134 or a settled statement under rule
8.137, describing what occurred at the hearing (e.g., the
arguments raised by the parties and the court’s response to those
arguments, if any).
Also on February 19, 2021, the trial court issued a signed
order, granting judgment creditors’ motion and assigning to
judgment creditors any and all rights to payments to Uzun
resulting from the lawsuit against the City of Santa Monica and
the dissolution action “to the extent necessary to fully pay and
satisfy the judgment.” The order provides that such payments
will be “applied to the judgment until such time as the judgment
herein is fully satisfied, or this order[] is amended by the Court.”
DISCUSSION
In this appeal, Uzun does not challenge the enforceability
of the judgment against him and in favor of judgment creditors.
In attempting to collect on a judgment, section 708.510,
subdivision (a) allows a judgment creditor to file a motion seeking
an order requiring “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.” In “determining whether to order an assignment
or the amount of an assignment pursuant to subdivision (a), the
court may take into consideration all relevant factors, including
the following: [¶] (1) The reasonable requirements of a judgment
debtor who is a natural person and of persons supported in whole
or in part by the judgment debtor. [¶] (2) Payments the
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judgment debtor is required to make or that are deducted in
satisfaction of other judgments and wage assignments, including
earnings assignment orders for support. [¶] (3) The amount
remaining due on the money judgment. [¶] (4) The amount
being or to be received in satisfaction of the right to payment that
may be assigned.” (§ 708.510, subd. (c), italics added.)
As set forth in section 708.510, “Where a specific amount of
the payment or payments to be assigned is exempt by another
statutory provision, the amount of the payment or payments to be
assigned pursuant to subdivision (a) shall not exceed the amount
by which the payment or payments exceed the exempt amount.”
(§ 708.510, subd. (f).) The parties here cite section 704.140,
which provides in pertinent part, “an award of damages or a
settlement arising out of personal injury is exempt to the extent
necessary for the support of the judgment debtor and the spouse
and dependents of the judgment debtor.” (§ 704.140, subd. (b).)
Uzun acknowledges section 708.510 gives the trial court
“broad discretion in determining whether to order an assignment,
and in fixing the amount to be assigned.” He contends (1) the
trial court abused its discretion because it “failed to consider all
relevant factors” pursuant to section 708.510, subdivision (c), and
(2) “granted [judgment creditors’] motion without fixing the
amount to be assigned.” More specifically, he argues the court
failed to consider his employment status and his attorney’s lien
on proceeds from his lawsuit against the City of Santa of Monica;
and the court should have fixed the amount to be assigned to
leave him with sufficient payments from the lawsuits (to the
extent he prevailed) to support himself and his dependents.
As set forth above, by its express language, section 708.510
does not require the trial court to consider specific factors. The
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court “may” (i.e., has discretion to consider) all factors it deems
relevant “in determining whether to order an assignment or the
amount of an assignment.” (§ 708.510, subd. (c); see Housing
Authority of City of Oakland v. Superior Court of Alameda
County (1941) 18 Cal.2d 336, 339 [Legislature’s use of “may” in a
statute expressed intent to invest discretion in the trial court];
Brown v. Superior Court (2004) 116 Cal.App.4th 320, 334 [“ ‘The
ordinary import of “may” is a grant of discretion’ ”].)
In evaluating whether the trial court abused its discretion,
we begin our analysis with the well-settled principle that a
“ ‘judgment or order of the lower court is presumed correct. All
intendments and presumptions are indulged to support it on
matters as to which the record is silent, and error must be
affirmatively shown.’ ” (Denham v. Superior Court (1970) 2
Cal.3d 557, 564; accord Gee v. American Realty & Construction,
Inc. (2002) 99 Cal.App.4th 1412, 1416.) To prevail on appeal, a
party must provide an adequate appellate record demonstrating
error. (See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.)
Where appellant fails to provide an adequate record on appeal,
we must presume the judgment [or order] is proper and affirm.
(Gee, at p. 1416 [“ ‘if the record is inadequate for meaningful
review, the appellant defaults and the decision of the trial court
should be affirmed’ ”]; Estrada v. Ramirez (1999) 71 Cal.App.4th
618, 620, fn. 1.)
Uzun’s declaration in opposition to judgment creditors’
motion for an assignment order provides the following
information: Uzun “lost” his medical license in 2017, he is
unemployed, and his “work prospects have severely declined” due
to the pandemic; he has “no family income to support [his] family
and kids”; his attorney has a lien on the proceeds from his
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lawsuit against the City of Santa Monica in an amount not
disclosed; and, in the lawsuit against the City of Santa Monica,
he is “seeking recovery of past, present and future medical
damages based on [alleged undescribed] injuries [he] suffered”
under undescribed circumstances. His declaration indicates he is
only challenging the assignment of payments from the lawsuit
against the City of Santa Monica, and not payments from the
dissolution action (although, on appeal, he disregards this
forfeiture and purports to challenge the latter as well). The two-
page declaration contains the only statements in opposition to the
motion in the record before us.
Uzun cannot show the trial court abused its discretion in
assigning to judgment creditors any payments to him resulting
from the lawsuit against the City of Santa Monica and the
dissolution action, up to the amount to satisfy the judgment.
There is nothing in the record indicating the trial court declined
to consider Uzun’s declaration. And the statements in the
declaration, by themselves, are insufficient to demonstrate error.
Uzun did not set forth in his declaration an amount he would
require from such payments to support himself and his family.
While he stated in his declaration that he does not have “income”
because he is unemployed, he did not state he is without other
assets that could be used to support himself and his family.
Moreover, he provided insufficient information in his declaration
regarding his attorney’s lien on proceeds from the lawsuit against
the City of Santa of Monica (e.g., amount and date of lien), and no
legal authority in his appellate briefing, for us to evaluate his
claim the trial court erred.
Moreover, because the record on appeal does not include an
agreed statement under California Rules of Court, rule 8.134 or a
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settled statement under rule 8.137, we do not know what
occurred at the hearing on judgment creditors’ motion, at which
both sides appeared. (See Southern California Gas Co. v.
Flannery (2016) 5 Cal.App.5th 476, 483 [“In many cases involving
the substantial evidence or abuse of discretion standard of review
. . . a reporter’s transcript or an agreed or settled statement of the
proceedings will be indispens[a]ble”].) The trial court’s minute
order states the court considered the parties’ oral arguments in
ruling on the motion. Without a record of the information and
arguments Uzun presented to the court at the hearing, we cannot
determine if the court abused its discretion in failing to consider
relevant factors.
Based on the limited information in the record before us,
Uzun has not and cannot demonstrate the trial court erred.
Accordingly, we affirm the assignment order.
DISPOSITION
The order is affirmed. Respondents are entitled to recover
costs on appeal.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
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