Epstein

Epstein v. Southern California Permanente Medical Group

Good Law
61 F. App'x 408
United States Court of Appeals for the Ninth CircuitApril 11, 2003Nos. 02-56242, 02-56387; D.C. No. CV-95-08489-MLRCalifornia651 words

Opinion

Lead Opinion

MEMORANDUM ***

A. The Claim of Exemption

Zamos claims that the March 27 assignment to the Trust of the Truesdell fees shields those fees from his creditors under Cal.Civ.Proc.Code § 704.115(b). We disagree.

The Truesdell fees are not exempt because they have never been “held, controlled, or in process of distribution by a private retirement plan.” Id. At the time of the levy, the funds were “held” or “controlled” by Truesdell, not by the Trust. Although Zamos had temporary custody of the check, the check was made out to Truesdell and delivered to Zamos only as her agent. Nor were the funds “in process of distribution by” the Trust. The Truesdell fees never even made it into the Trust, so they could not have been in the process of being distributed by the Trust. See Lieberman v. Hawkins (In re Lieberman), 245 F.3d 1090, 1095 (9th Cir.2001) (noting that Cal.Civ.Proc.Code § 704.115 does not exempt all assets that a debtor intends to use for retirement).

Zamos relies on Flannery v. Prentice, 26 Cal.4th 572 , 110 Cal.Rptr.2d 809 , 28 P.3d 860 (2001), a case that does not help *409 him. Flannery holds that, as between a lawyer and client, fee awards in California Fair Employment and…

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