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Tina
Tina, Attorney
Category: California Employment Law
Satisfied Customers: 30834
Experience:  JD, 16 years experience & recognized by ABA for excellence in employment law.
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My mother is a Coldwell Banker Real Estate Agent in San Diego,

Resolved Question:

My mother is a Coldwell Banker Real Estate Agent in San Diego, CA. In January of 2011, a Wage Garnishment was served to her, along with a Writ, for a default small claims judgment from a previous landlord.

Although we tried to get the default ruling nullified, we were not successful. I have been looking into bringing a motion for voiding the judgment, as I believe the court acted improperly. However, this is another issue.

At this time, my mother's broker called the Sheriff's Office and verbally told them that my mother was an independent contractor, not an employee of Coldwell Banker. The next event which occurred, just a few days after, on Feb. 2, 2011, was the Wage Garnishment was turned into a 3rd party levy. My mother fought that in court and won, the judge remarking that a 3rd party levy was not the proper method in this case.

Now, just a few days ago, on Dec. 2, 2011, almost a year later, this same person filed another Wage Garnishment against my mother, who is still at Coldwell Banker. My mother's broker said she would send it to corporate this time, in an effort to stop it once and for all.

However, the women who filled out the Wage Garnishment this time at corporate marked that my mother was an employee! My mother's contract with Coldwell Banker clearly states that she is an independent contractor and NOT an employee of Coldwell Banker.

I don't know if the form has already been sent back to the Sheriff's Office, but how can my mother defend against this 2nd Wage Garnishment? How can she get Coldwell Banker to mark the proper choice on the Wage Garnishment that she is NOT an employee of Coldwell Banker, AS PER HER CONTRACT?

I don't want to file a Claim of Exemption and fight this in court on the pretense of Coldwell Banker marking that my mother is an employee, when she is not. That is to say, I would have the contract in court, along with the proper Wage Garnishment statute indicating that a Wage Garnishment is ineffective against an independent contractor of a business, but I would not trust the judge to make the right decision, with the Wage Garnishment from Coldwell Banker indicating she is an employee.

By the way, could you please site me the CA code section which addresses independent contractors and Wage Garnishments? Thank You.
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Tina replied 2 years ago.
Hello and welcome,

Here is the code and case law establishing that self-employed individuals are not subject to wage garnishments:

For purposes of the Wage Garnishment Law, an employee is any individual who performed services subject to the right of the employer (the person for whom the services are performed) to control both what is done and how it is done. C.C.P. § 706.011(b)(c) See In re: Carter (9th Cir. 1999) 182 F 3d 1027, 1031 - “actual” control of an employee’s performance not required for purposes of section 706.011. It follows that the Wage Garnishment Law does not apply to self-employed debtors. See Moses v. DeVersecy (1984) 157 Cal. App. 3d, 1071, 1073.

Here is a link that provides this and more information:

http://www.pahl-mccay.com/NewsInfo/LaborLawupdates/WageGarnishmentExplained/tabid/103/Default.aspx

Your mother needs to contact the corporate office and express the need for correcting the information they provided, indicating that she is NOT and employee but an independent contractor.

If you do not trust the court to review her 1099s and rule that she is an independent contractor, then that would be the only method for correcting the error typically.

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Customer: replied 2 years ago.
Thank you, Tina.

I'm trying to do everything I can here for my mother; she is 67 and has high blood pressure and this legal issue has upset her greatly. I myself am a scientist working at San Diego State University, and make no pretense to know the law in this matter.

With that said, I am satisfied with your answer and especially appreciate the citing of both the statute and case law. So I will "accept" your answer. I do have two last questions. 1. If my mother's contract does indeed site her as an independent contractor, must Coldwell Banker be legally bound to reflect this information in the Wage Garnishment, marking that she is not an employee? 2. I do not believe I recieve a 1099, but I do know my mother does, for commissions she receives from various escrow companies. What information on the 1099 would a judge use it determine status; independent contractor vs. employee?

Thank You,

Joshua
Expert:  Tina replied 2 years ago.
The 1099s are helpful in that they indicate independent contractor status. An employee receives a W-2, not a 1099.

Yes, the company has a legal obligation to provide correct information to the courts and the form they sent with the incorrect information likely has a warning that the providing of false information can subject the individual to charges of perjury or other similar language. So the individual has an interest in providing correct information to the best of their ability and should correct the error.

I hope this matter is resolved very promptly for the well-being of your mother.

All the best to you both!




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Tina, Attorney
Satisfied Customers: 30834
Experience: JD, 16 years experience & recognized by ABA for excellence in employment law.
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