Kelly v. Hickman ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GREGORY KELLY, Case No.: 3:21-cv-01226-BEN-MDD 12 Plaintiff/Judgment Creditor, ORDER ADOPTING REPORT AND 13 v. RECOMMENDATION PARTIALLY GRANTING AND PARTIALLY 14 RANDALL MARK HICKMAN, DENYING PLAINTIFF’S MOTION 15 Defendant/Judgment Debtor. FOR ASSIGNMENT ORDER AND ORDER RESTRAINING 16 JUDGMENT DEBTOR 17 [ECF No. 4, 10] 18 19 On May 26, 2021, Plaintiff filed a Motion for Assignment Order and Order 20 Restraining Judgment Debtor. ECF No. 4. Defendants did not file an opposition. 21 On September 30, 2021, Magistrate Judge Mitchell D. Dembin issued a thoughtful 22 and thorough Report and Recommendation, recommending that this Court partially grant 23 Plaintiff’s motion for assignment order and order restraining judgment debtor. ECF No. 24 10. Magistrate Judge Dembin’s analysis on California law provides specific and 25 convincing reasons regarding the treatment of wages and stimulus checks under California 26 law for purposes of satisfying a money judgment. He concluded that while state and tax 27 refunds are subject to an assignment order, stimulus checks, like those issued as a result of 28 1 the COVID-19 pandemic, are not. Secondly, Magistrate Judge Dembin concluded an 2 assignment order is appropriate in this matter as Defendant is not required to make 3 payments in satisfaction of any other judgments or wage assignments and because 4 Defendant has not made any payments on the subject judgment since 2018. The Report 5 and Recommendation ultimately recommended granting Plaintiff’s motion for an 6 assignment order as to the Defendant’s 2020 tax refunds, but denying the motion with 7 respect to any stimulus funds. Regarding the restraining order, Magistrate Judge Dembin 8 cited Defendant’s failure to make payments on the judgment since 2018 and stated this 9 creates a reasonable inference the Defendant will dispose of any payments received from 10 his 2020 tax returns without paying Plaintiff. Accordingly, he recommended granting 11 Plaintiff’s motion for an order restraining Defendant from assigning or otherwise disposing 12 of money received from tax returns. Neither party filed objections to the Report and 13 Recommendation. 14 A district judge “may accept, reject, or modify the recommended disposition” of a 15 magistrate judge on a dispositive matter. FED. R. CIV. P. 72(b)(3); see also 28 U.S.C. § 16 636(b)(1). “[T]he district judge must determine de novo any part of the [report and 17 recommendation] that has been properly objected to.” FED. R. CIV. P. 72(b)(3). However, 18 “[t]he statute makes it clear that the district judge must review the magistrate judge’s 19 findings and recommendations de novo if objection is made, but not otherwise.” United 20 States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); see also Wang v. 21 Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005). “Neither the Constitution nor the statute 22 requires a district judge to review, de novo, findings and recommendations that the parties 23 themselves accept as correct.” Reyna-Tapia, 328 F.3d at 1121. 24 The Court need not conduct de novo review given the absence of objections. The 25 Court has considered and agrees with the Report and Recommendation. Accordingly, the 26 Court ADOPTS the Report and Recommendation. 27 28 I 2 |} CONCLUSION 3 The Court GRANTS the Motion with respect to Defendant’s 2020 tax returns and 4 || DENIES the Motion with respect to stimulus checks received by Defendant. 5 IT IS SO ORDERED. 6 Dated: December 7, 2021 7 HON. ROGER T. BENITEZ United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28