Friday, December 9, 2011
Page 1
Court of Appeal Rules:
Bond Not Required for Order Shielding Community Property
By KENNETH OFGANG, Staff Writer
A trial judge need not require a bond when enjoining a creditor from levying on community property to collect a judgment against the spouse of the party obtaining the injunction, the Sixth District Court of Appeal ruled yesterday.
The justices ruled that Charlene Guasch does not have to furnish a bond in favor of Pamela Carmody, who holds a judgment for more than $224,000 against James Guasch.
Carmody was James Guasch’s girlfriend, and was sentenced to two years in prison after pleading guilty to several crimes, including conspiring to intimidate a witness who testified at James Guasch’s trial for hiring two men to kill his wife.
James Guasch was sentenced to more than 12 years in prison for solicitation of murder following his 2008 trial for solicitation of murder in Santa Clara Superior Court. last year. The Sixth District Court of Appeal affirmed in an unpublished opinion last year, and U.S. District Judge William Alsup of the Northern District of California denied his habeas corpus petition this past June.
According to news accounts, the agents said Guasch—a onetime firefighter who ran a carpet cleaning and restoration business—told them he wanted his wife killed and buried in the Nevada desert. He supplied a 99-count bottle of Oxycodone as a retainer.
Guasch was arrested before he could pay anything further. Subsequent reports linked him to illegal sales of methamphetamine and of prescription drugs that were stolen from local pharmacies and hospitals.
The police were tipped off to Guasch’s desire to hire a killer by Stephen Pawlaczyk, a jail inmate facing a possible third-strike sentence for using a stolen credit card. Carmody, an accounting instructor, admitted helping Guasch find out Pawlaczyk’s cell number so that Guasch could send over “a few friends who want to say hi,” as Carmody put it in a taped conversation.
Carmody later sued Guasch, in part to recover money she allegedly loaned him for bail. After obtaining a default judgment, she served a writ of execution on an investment fund that held an account in the names of James and Charlene Guasch.
Seeking protection from the family law court, Charlene Guasch alleged that her husband had allowed Carmody to obtain a default judgment so that she could execute against the community property, rather than against separate property. She asked for an order directing the fund to release a portion of the money it was holding to her, pursuant to a prior order allowing her to withdraw from the account, along with an order quashing the writ of execution and enjoining further collection efforts against community property.
Carmody responded that she had a legal right to enforce her judgment against community property, and that if the court were to enjoin execution of the judgment, Charlene Guasch should be required to post a bond of one and one-half times the amount of the judgment, as required by Code of Civil Procedure Sec. 529.
Judge Michael Clark said that Carmody could not use judgment creditor remedies to avoid the court’s exclusive jurisdiction over community property. Seeking to collect from community property rather than separate property of the judgment debtor, Clark said, was “a means of harassing” Charlene Guasch and was “entirely improper and inequitable, and cannot be tolerated.”
Justice Franklin Elia, writing for the Court of Appeal, said Clark acted within his authority over “the settlement of the property rights of the parties,” and that he was not required to apply Sec. 529.
“It is true that a civil statute is applicable in family court proceedings if it does not conflict with statutes and rules adopted under the Family Law Act,” Elia wrote. But court rules listing the prerequisites for injunctive relief from third parties asserting rights against community property do not include the posting of an undertaking, the justice noted.
Elia went on to say that the outcome would be the same even if the judge erred in assuming that accounts held in James Guasch’s name alone were his separate property, because “no error occurred in declining to require an undertaking by Charlene to secure payment of a debt that was not hers.”
He continued:
“We thus conclude that the lower court acted within its power under the Family Law Act to preserve community property pending division of that property between James and Charlene. As the court observed, appellant ‘can request whatever satisfaction she finds appropriate at the time the Court makes a final disposition of each party’s share of the community trust proceeds.’ Until that disposition is reached, appellant may levy against James’s separate property to whatever extent that exists. A bond payable by Charlene to secure appellant’s judgment against James was not mandatory or necessary in these circumstances....”
The case is In re Marriage of Guasch, 11 S.O.X. 6624.
Copyright 2011, Metropolitan News Company